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Filed 5/16/16 Ronald W. Komers Trust v. County of Riverside CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

RONALD W. KOMERS TRUST,

Plaintiff and Appellant,

v.

COUNTY OF RIVERSIDE,

Defendant and Respondent.

E063550

(Super.Ct.No. RIC1314390)

OPINION

APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge. 

Affirmed.

Hubbard Law Firm, David F. Hubbard and Mordecai Eli Underwood for Plaintiff 

and Appellant.

Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham; Arias & Lockwood 

and Christopher D. Lockwood for Defendant and Respondent.

Plaintiff and appellant Ronald W. Komers Trust (Komers) appeals the grant of 

defendant and respondent County of Riverside’s (County) motion for determination of 
2

liability filed pursuant to Code of Civil Procedure section 1260.040 (Motion).

1 Komers’s 

property was damaged as a result of a County employee conducting weed abatement next

to a County road. The employee used a mower attached to a County-owned tractor. The 

mower hit a barbed wire fence and started a fire, dubbed the Volcano Fire, which spread 

to Komers’s property. Komers filed a complaint for inverse condemnation.

The trial court granted County’s Motion, that it had no liability in inverse 

condemnation. Komers contends on appeal that the trial court erred by granting the 

motion because the weed abatement conducted by County was an inherently risky and 

defective maintenance plan, which gave rise to liability for inverse condemnation. We 

find that the Motion was properly granted as Komers failed to meet its burden of proving 

a claim in inverse condemnation. 

FACTUAL AND PROCEDURAL HISTORY

A. KOMERS’S COMPLAINT FOR INVERSE CONDEMNATION

On December 26, 2013, Komers filed its complaint in inverse condemnation based 

on damages to its property caused by the Volcano Fire. Komers alleged as to liability as 

follows: “In early August 2012, the County was engaged in a public project commonly 

identified as weed abatement on a 9,000-acre County Park called the Santa Rosa Plateau 

Ecological Reserve in the unincorporated area of Murrieta (hereafter, ‘project’) when a 

fire resulted as a direct consequence of the County’s actions in furtherance of the project. 

The fire was identified by the California Department of Forestry and Fire Protection, 

 

1

 All further statutory references are to the Code of Civil Procedure unless 

otherwise indicated. 
3

among others, as ‘the Volcano Fire’ and will be hereafter as well. The Volcano Fire 

ultimately burned through approximately 400 acres.” Komers sought reimbursement for 

damages not covered by insurance, including the loss of approximately 500 mature trees;

costs incurred in having to remove dead trees; loss of vacation rental income because of 

the unsightly condition of the property; damage from fire retardant; and loss of income 

from the destruction of mature avocado trees and grapevines. County filed an answer to 

the complaint generally denying every allegation in the complaint.

B. COUNTY’S MOTION FOR DETERMINATION OF LIABILITY

On January 15, 2015, County filed the Motion. County presented the following 

facts: Komers owned property located at the corner of 21100 Via Los Laureles and 

21121 Via Los Laureles in Murrieta. County conducted weed abatement on a nearby 

9,000-acre park called the Santa Rosa Plateau Ecological Reserve. On August 1, 2012, a 

fire started in the area of Tenaja Road and Via Volcano when a County employee was 

mowing weeds at the side of a County road as routine maintenance and ran over barbed 

wire hidden in the weeds. The mower blades hit the wire and sparked the fire. The fire 

was dubbed the Volcano Fire and spread to Komers’s Murrieta property. Komers 

presented tort claims to the County; the claims were rejected by operation of law. 

Komers did not commence the Complaint within six months of the denial of the tort 

claims. 

County stated that inverse condemnation involves the taking or damaging of 

private property for public use without just compensation. County contended there was 

no authority for the proposition that ordinary negligence in maintenance of a County road 
4

creates liability under inverse condemnation. County argued that a motion pursuant to 

section 1260.040, to resolve liability in an inverse condemnation action, was appropriate 

and that the trial court could decide issues of fact without a trial. 

County argued California law was clear and unambiguous that eminent domain 

and inverse condemnation law did not subject County to general tort liability. Further, 

negligent acts committed during day-to-day operations of the public improvement do not 

give rise to inverse condemnation. County cited to Paterno v. State of California (1999) 

74 Cal.App.4th 68 at pages 86 through 87 (Paterno) for the proposition that when 

damage to private property results from acts of employees rather than a policy decision, 

there is no taking for inverse condemnation purposes. There must be proof that the plan 

of maintenance must be unreasonable to establish the taking. County claimed, “The fact 

that plaintiff could have, but did not, file a timely lawsuit for tort damages against County

does not entitle plaintiff to recover under Inverse Condemnation.” Inverse condemnation 

did not impose a constitutional based liability for damage incidentally caused by the 

actions of public employees in their public duties. 

County concluded cutting weeds and removing brush from roadsides is routine 

maintenance and had nothing to do with the function of public improvement. The only 

possible liability on behalf of County would have been a tort claim, and Komers chose 

not to file a tort claim. 

County submitted two declarations in support of the Motion. Cecilia Gil was the 

Board Assistant to the Clerk of the Riverside County Board of Supervisors. Included in 

her duties was the receipt of tort claims against County. Komers submitted two tort 
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claims to County on January 16, 2013, for damage to its property. On March 4, 2013, the 

claims were rejected “by operation of law” and Komers was advised that a court action 

had to be filed within six months from the rejection of the claims. The tort claims filed 

by Komers for damages were also attached to the Motion. The claims alleged that a 

County weed abatement employee caused a 400-acre fire that damaged Komers’s

property. 

The second declaration was from Chris Palmer. He was employed by the 

California Department of Forestry and Fire Protection. He was the incident investigator 

for the Volcano Fire that occurred on August 1, 2012. The fire ultimately burned 

approximately 350 acres. The cause of the fire was determined to be “blade strikes on 

barbed wire from a Riverside County Transportation Department reach mower 

conducting brush removal.” The California Department of Forestry and Fire Protection 

investigation report was attached, which confirmed the cause of the fire. 

C. KOMERS’S OPPOSITION TO COUNTY’S MOTION

On February 6, 2015, Komers filed opposition to the Motion. Komers contended 

that County only relied on cases involving water damage, and not fire damage. Komers 

contended that fire damage involved a different legal standard. 

Komers provided the additional facts that County employee, Michael Rios, was 

using a tractor to perform weed abatement. The tractor had a dry chemical fire 

extinguisher on it. Rios attempted to use the fire extinguisher to put out the fire but it did 

not work. Komers lost hundreds of avocado trees, hundreds of grapevines, rental income,

and damage to personal property. The California Department of Forestry and Fire 
6

Protection determined that County was the cause of the fire. Komers also contended that 

a County internal report concluded that Rios was performing normal mowing operations 

and did nothing out of the ordinary when he caused the fire.

Komers contended that strict liability applied to inverse condemnation actions. 

Komers relied on several cases imposing liability “when a public project creates a fire 

that damages private property.” Komers cited to Marshall v. Department of Water and 

Power (1990) 219 Cal.App.3d 1124 (Marshall). That case involved a fire caused by 

downed power lines. Komers quoted language in Marshall that “‘[a] governmental entity 

may be held strictly liable, irrespective of fault, where a public improvement constitutes a 

substantial cause of the plaintiff’s damages even if only one of several concurrent 

causes.’” Komers also relied upon Pacific Bell Telephone Co. v. Southern California 

Edison Co. (2102) 208 Cal.App.4th 1400 at page 1410 (Pacific Bell).

Komers criticized County for relying on the negligence of its employee in 

supporting that County was not liable under a theory of inverse condemnation. Komers 

alleged that County had internally determined that Rios was performing normal mowing 

operations and did nothing out of the ordinary. Komers argued that a public entity is 

liable for inverse condemnation unless the employee acts outside the pubic entity’s plan 

of operation. County could only escape liability if the employee deviated from the public 

entity’s plan. 

Komers contended that Rios was performing his job, which County asked him to 

perform, in the manner in which he was told to perform it. County provided Rios with
7

the tools to perform the weed abatement. County was strictly liable for the damages 

caused to Komers’s property.

Komers further argued County had failed to establish that their employee was 

negligent. Further, County was aware the potential for fire existed as “demonstrated by 

the presence of the fire extinguisher on County-provided tractor.” 

Finally, Komers contended the fundamental public policy behind the principle of 

eminent domain and inverse condemnation was that an individual should not be forced to 

bear a burden that should be borne by the community at large. Komers contended that 

County undertook weed abatement with the knowledge of the risk of fire and that private 

property may be damaged. It should be held liable for such a plan.

Komers attached a report prepared by County regarding the Volcano Fire. It 

included the following conclusion by a district road maintenance supervisor employed by 

County: “[I]t was deemed that Mike Rios was performing normal mowing operations 

and did nothing out of the ordinary in this operation. Mike performed a visual before 

starting the mowing operation. Mike could not see any type of obstruction or debris due 

to the height of the weeds and brush. Because barb wire was nestled in the weeds and 

could not be noticed, the barb wire tangled in the mower head during mowing operation 

causing friction and heat which ignited the weeds. Mike did what he could to contain and 

extinguish the fire. Mike kept himself out of harm’s way and called 911 when he was 

able to receive reception. This was a complex situation that resulted in unfortunate 

results.” A narrative was also part of the incident report. It provided that Rios hit the 

barbed wire that was hidden by weeds. It did not immediately start a fire. He started to 
8

drive away but looked back to see smoke. Rios immediately turned around and used a 

10-pound dry chemical fire extinguisher that he had on the tractor to try to put out the fire 

but it did not work. Rios also had a 5-pound fire extinguisher on the tractor. The report 

included the conclusion, “It is my opinion that Mike Rios did everything he could to 

prevent the fire and to extinguish the fire. This I believe is a non-preventable accident.”

Komers attached additional pages of the California Department of Forestry and

Fire Protection report prepared by Palmer, which had been submitted with the Motion. 

Palmer spoke with Rios. Palmer found barbed wire in the mower attachment on the 

tractor. It matched the wire on a fence that was damaged. The tractor that had the mower 

attachment was a turbo-charged diesel motor. Palmer concluded, based on his training 

and experience, that the fire started by the barbed wire coming in contact with the mower 

attachment. The barbed wire sparked the fire. Palmer also indicated that the dry 

chemical extinguisher was not the right type of extinguisher for the fire. Palmer 

concluded, “The tractor should have been equipped with a water type extinguisher and 

hand tools for fire suppression.” 

D. COUNTY’S REPLY TO KOMERS’S OPPOSITION TO THE MOTION

County filed its reply to the opposition. County argued that the standard of 

review—strict liability or reasonableness—did not matter as the weed abatement was 

routine maintenance and not a public use project. County argued inverse condemnation 

was not intended to cover whenever a government employee committed an act that 

caused loss of private property. County also distinguished cases in which a downed 

power line caused a fire. County argued that the power lines were clearly a public use 
9

project. Weed abatement was not akin to utility power lines. County argued, “Public 

utilities, such as supplying power and electricity, are clearly a public project, while 

routine weed abatement on public property is clearly simple maintenance.” 

E. RULING

Komers attached the tentative ruling of the trial court to appellant’s opening brief. 

The Court stated: “Pursuant to Bauer vs. County of Ventura (1955) 45 Cal.2d 276, 286, 

damage resulting from negligence in the routine operation having no relation to the 

function of the project does not give rise to liability for inverse condemnation. Where 

damage results from the acts of employees, and not from a policy decision, there is no 

taking: recovery, if any, lies in a tort action such as negligence (Paterno[, supra,] 74 

Cal.App.4th [at p.] 87). [¶] In this case, Plaintiff’s damages resulted from a County 

employee running the tractor mower over barbed wire while performing maintenance 

duties. Weed abatement is distinguishable from the public use project cases that Plaintiff 

relies on (Pacific Bell Telephone, Marshall, etc.). Weed abatement is part of the day-today maintenance and operation of the public improvement (the County road). Consistent 

with Bauer and Paterno, the Court finds that the County is not liable under an inverse 

condemnation theory.”

The judgment granting the Motion was signed on March 17, 2015. The notice of 

entry of judgment was entered on March 27, 2015. 

DISCUSSION

Komers’s theory of liability for inverse condemnation was based on its claim that 

Rios was not negligent in mowing County road, but rather, followed County’s plan for 
10

weed abatement. Komers concludes on appeal that because the plan of weed abatement

adopted by County involved using a diesel tractor in the middle of fire season, it was 

inherently risky, and County was strictly liable for any property damage incurred due to 

its defective maintenance plan. 

Section 1260.040 provides in pertinent part: “(a) If there is a dispute between 

plaintiff and defendant over an evidentiary or other legal issue affecting the determination 

of compensation, either party may move the court for a ruling on the issue. The motion 

shall be made not later than 60 days before commencement of trial on the issue of 

compensation. The motion shall be heard by the judge assigned for trial of the case. 

[¶] . . . [¶] (c) This section supplements, and does not replace any other pretrial or trial 

procedure otherwise available to resolve an evidentiary or other legal issue affecting the

determination of compensation.” This provision applies to actions commenced on or 

after January 1, 2002. Section 1260.040 authorizes the government entity to move for a 

ruling on liability in an eminent domain or inverse condemnation action because it is a 

legal issue affecting the determination of compensation. (Dina v. People ex. rel. 

Department of Transportation (2007) 151 Cal.App.4th 1029, 1043-1047 (Dina).) 

Review of a motion filed under section 1260.040 is “the equivalent of ruling on a 

motion for nonsuit.” (Dina, supra, 151 Cal.App.4th at p. 1047.) As such, “‘We “‘must 

accept all facts asserted in the opening statement [or here, asserted in the best case 

scenario] as true and must indulge every legitimate inference which may be drawn from 

those facts. [Citations.] . . . [A nonsuit] can only be upheld on appeal if, after accepting 

all the asserted facts as true and indulging every legitimate inference in favor of plaintiff, 
11

it can be said those facts and inferences lead inexorably to the conclusion plaintiff cannot 

establish an essential element of its cause of action.’”’” (Id. at p. 1047.)

“An inverse condemnation cause of action derives from article I, section 19 of the 

California Constitution, which states in relevant part: ‘Private property may be taken or 

damaged for public use only when just compensation . . . has first been paid to, or into 

court for, the owner.’” (Dina, supra, 151 Cal.App.4th at p. 1048.) “An action for inverse 

condemnation ‘is an eminent domain proceeding initiated by the property owner rather 

than the condemner. The principles which affect the parties’ rights in an inverse 

condemnation suit are the same as those in an eminent domain action.’” (Marshall,

supra, 219 Cal.App.3d at p. 1139.) “‘The law of inverse condemnation is not governed 

by the Eminent Domain Law, but has been ‘“left for determination by judicial 

development.”’” (Mt. San Jacinto Community College District v. Superior Court (2004) 

117 Cal.App.4th 98, 104.) 

“Property is ‘taken or damaged’ within the meaning of article I, section 19 of the 

California Constitution, so as to give rise to a claim for inverse condemnation, when: 

(1) the property has been physically invaded in a tangible manner; (2) no physical 

invasion has occurred, but the property has been physically damaged; or (3) an intangible 

intrusion onto the property has occurred which has caused no damage to the property but 

places a burden on the property that is direct, substantial, and peculiar to the property 

itself.” (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 530.)

“To be subject to liability in inverse condemnation, the governmental action at 

issue must relate to the ‘public use’ element of article I, section 19. ‘Public use’ is the 
12

threshold requirement. [Citation.] ‘The destruction or damaging of property is 

sufficiently connected with “public use” as required by the Constitution, if the injury is a 

result of dangers inherent in the construction of the public improvement as distinguished 

from dangers arising from the negligent operation of the improvement.’ [Citation.] A 

public entity’s maintenance of a public improvement constitutes the constitutionally 

required public use so long as it is the entity’s deliberate act to undertake the particular 

plan or manner of maintenance.” (Arreola v. County of Monterey (2002) 99 Cal.App.4th

722, 742 (Arreola).) “Unlike negligence, however, inverse condemnation does not 

require any breach of a standard of care, nor foreseeability of the harm. Thus any actual 

physical injury to real property proximately caused by a public improvement as 

deliberately designed and constructed is compensable under article I, section 19 of the 

California Constitution whether or not the injury was foreseeable.” (Aetna Life & 

Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 873.) 

All that is required is a deliberate act by a public entity, which has as its object the 

direct or indirect accomplishment of the purpose for which the improvement was 

constructed and which causes a taking or damaging of private property. (Bauer, supra,

45 Cal.2d at p. 285.) The property owner has the burden of establishing that the public 

entity has, in fact, taken or damaged his or her property. (San Diego Gas Electric Co. v. 

Superior Court (1996) 13 Cal.4th 893, 940.)

Here, the trial court relied on Bauer, supra, 45 Cal.2d 276, and Paterno, supra, 74 

Cal.App.4th 68. “In Bauer, a drainage ditch ran along the downhill border of the 

plaintiffs’ property. As originally constructed, any overflow from the ditch would have 
13

run downhill and away from the plaintiffs’ property. As time went on, the downhill side 

of the ditch was built up higher and higher with dirt and debris so that when the ditch 

later overflowed, it flooded the plaintiffs’ land. The county argued that the change in the 

ditch was a result of its maintenance and negligent maintenance was not the ‘public use’

to which inverse condemnation liability would attach.” (Arreola, supra, 99 Cal.App.4th 

at pp. 742-743.) The Supreme Court disagreed, explaining: “‘The rather obscure line 

between the concepts of “construction” and “maintenance” is disclosed by any attempt to 

define them in mutually exclusive terms and to characterize the raising of a bank of an 

existing ditch as one or the other. If the “maintenance” consists of an alteration of the 

ditch by raising one of the banks, then in a material sense “maintenance” becomes a 

species of “construction.” Had the bank been raised during the original construction it 

would have been part of the over-all project and hence within the rule. . . . The 

defendants’ argument that damage from maintenance is beyond the purview of [article I,] 

section [19] invites an artificial distinction which would turn simply upon the passage of 

time between the original construction and the subsequent alteration and must therefore 

be rejected.’” (Id. at p. 743.) Bauer made it clear that “the taking or damaging of private 

property for the maintenance of an existing public improvement involving a deliberate act 

which has as it object the direct or indirect accomplishment of the purpose of the 

improvement as a whole constitutes a taking or damaging of property for a public use and 

the owner of such property is entitled to compensation.” (Bauer, at p. 285.)

Paterno, supra, 74 Cal.App.4th 68 was an appeal from a judgment for the plaintiff 

on an inverse condemnation claim arising from a broken levee. The Paterno court stated 
14

as to the claim by the plaintiff, “In the case of alleged shoddy maintenance, as here, it is 

the plan of maintenance which must be unreasonable to establish a taking. Poor 

execution of a maintenance plan does not result in a taking.” (Id. at p. 87.) The Paterno

court held that the trial court’s statement of decision was deficient because it based 

liability “almost entirely on the violation of standards for levee maintenance, in other 

words, departures from the lawful plan, rather than on an unreasonable plan.” (Id. at p. 

90.) 

This case is similar to Tilton v. Reclamation District No. 800 (2006) 142 

Cal.App.4th 848. There, another case involving the failure of a levee, the plaintiff in the 

complaint alleged that the defendant was responsible for the maintenance of the levee, the 

failure of the levee was due to the defendant maintaining the levee in a manner such that 

it was too steep for underwater conditions, and defendants substantially participated in 

the maintenance of the levee upon which plaintiff’s property was located and such 

participation was for the use and/or benefit of the public. (Id. at p. 859.) The court 

concluded after reviewing several cases that, “although there may be liability in inverse 

condemnation where levee failures are integrally connected with a flawed plan for those 

levees and/or flawed construction, there is no such liability where similar failures are the 

result of negligent or inadequate operation and maintenance.” (Id. at p. 858, fn. omitted.) 

The Tilton court criticized the plaintiff for never alleging that the maintenance plan was 

defective. As such, the court concluded, “[t]hese allegations do not meet the test we 

derive from the precedents just discussed, i.e., that garden variety inadequate 

maintenance, as distinguished from a faulty plan involving the design, construction and 
15

maintenance of a levee, is not an adequate basis for an inverse condemnation claim.” (Id. 

at p. 859.)

Here, what was missing from the Complaint and opposition by Komers, was 

evidence of “deliberateness,” or in other words, a faulty plan of maintenance for weed 

abatement. Komers only made conclusory allegations in the Complaint and in its 

opposition that the plan to mow the weeds with the tractor was “inherently risky.” 

However, Komers never alleged what County’s plan for weed abatement consisted of, or 

how such a plan was defective. There was nothing presented that this type of weed 

abatement was not to be performed during fire season, or that County was aware that 

such plan was improper but proceeded with the plan regardless of the risk. Moreover, the 

California Department of Forestry and Fire Protection report stated nothing about the 

defectiveness of County’s plan for weed abatement. 

Moreover, absolutely no evidence was presented as to why the two fire 

extinguishers were on the tractor. In fact, the evidence established they were not the right 

type to extinguish a fire like the one that occurred in this case. Komers provided nothing

to the trial court that could establish the plan of weed abatement—which was clearly 

maintenance—was somehow defective as required in order to find liability under inverse 

condemnation. If County decided not to engage in weed abatement at all, would not the 

risk of fire danger increase? Moreover, this court would merely engage in speculation as 

to what other method of weed abatement should have been used. Simply put, there was 

no proper allegation or evidence supporting that the weed abatement plan devised by 

County was defective. As such, there was no inverse condemnation claim. 
16

This case differs from Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 

596. In that case, a facility owned by the plaintiff sustained substantial damage when a 

corroded cast-iron water pipe servicing a fire hydrant burst; the pipe was owned by the 

defendant. The appellate court found that the defendant was aware prior to the pipe 

bursting that all of its cast-iron pipes needed to be replaced, but had no program or 

method for identifying those in need of immediate replacement. (Id. at pp. 599-600.) 

The Pacific Bell court found that the deliberateness required for inverse condemnation 

liability was satisfied by a finding that the public improvement, as designed, constructed 

and maintained, presented an inherent risk of danger to private property and the inherent 

risk materialized and caused damage. (Id. at p. 607.) The court found that the defendant 

chose to install the water pipes but provided no method of maintenance. The defendant

could have incurred the cost in advance by monitoring and replacing the system before a 

failure caused damage. When it chose not to do so, article I, section 19 required that the 

cost be absorbed by the taxpayers as a whole, and not by the individual landowner. (Id.

at pp. 607-608.) Here, there was no showing, as in Pacific Bell, of a defective plan.

The cases involving inverse condemnation liability due to downed power lines 

starting a fire are easily distinguishable. Here, the public improvement was parkland. 

The cause of the fire was maintenance on the land, not the park itself. In Marshall,

supra, 219 Cal.App.3d 1124, the Los Angeles City Department of Water and Power had 

constructed a series of power polls to provide electricity to customers in Los Angeles. 

The trial court concluded the power polls were a “public improvement.” (Id. at p. 1130.) 

On a “windy, very dry and hot” day, the power lines fell and sparked a fire. (Id. at p. 
17

1131.) The trial court concluded the cause of the fire was determined to be the downed 

power lines. (Id. at p. 1133.) The appellate court concluded substantial evidence 

supported the trial court’s determination. (Id. at p. 1141.) The evidence clearly 

established that the power lines, a public improvement, deliberately caused the fire, 

unlike this case, which involved maintenance on the property. 

Aetna Life & Casualty Co. v. City of Los Angeles, supra, 170 Cal.App.3d 865, also 

involved a fire that was started by downed power lines. (Id. at p. 872.) The court held, 

“[A]ny actual physical injury to real property proximately caused by a public 

improvement as deliberately designed and constructed is compensable under article I, 

section 19 of the California Constitution whether or not the injury was foreseeable. 

[Citation.] It is not necessary that government’s liability be based on negligence as long 

as there is a causal relationship between government’s act or omission and the loss. 

[Citation.] All that is required is a deliberate act by a public entity which has as its object 

the direct or indirect accomplishment of the purpose for which the improvement was 

constructed and which causes a taking or damaging of private property.” (Id. at pp. 873-

874.) The court concluded that the deliberate design of the power lines caused the fire. 

(Id. at p. 874.) Here, there was no showing that a public improvement directly caused the 

fire but rather liability was based on a defective maintenance plan.

The recent case of Gutierrez v. County of San Bernardino (2011) 198 Cal.App.4th 

831 is also instructive. In that case, the county installed K-rails to help with flood control 

but the plaintiff’s property was damaged by a flood. The court found that the installation 

of the K-rails was a public improvement. It further found that causation was established 
18

and the plaintiffs suffered damage. (Id. at p. 844.) The plaintiffs argued that the county 

should be held strictly liable for the damages caused by the installation of the K-rails. 

(Id. at p. 845.) The appellate court disagreed. It found that the proper standard for 

imposing liability was reasonableness. It concluded strict liability would discourage 

construction of needed public improvements if the county was held liable just for 

installing the K-rails. If the county was strictly liable, it would not seek to make such 

improvements. (Id. at pp. 847-848.) “As a matter of ‘public policy and common sense’ 

[citation], some protective action (even if it should ultimately be insufficient) should not 

be discouraged.” (Id. at p. 848.)

The Gutierrez court then set forth the test for reasonableness. It found, 

“Considerations in determining the reasonableness of the conduct in light of the 

underlying constitutional right that a property owner contribute no more than his share to 

the public undertaking are: ‘(1) The overall public purpose being served by the 

improvement project; (2) the degree to which the plaintiff’s loss is offset by reciprocal 

benefits; (3) the availability to the public entity of feasible alternatives with lower risks; 

(4) the severity of the plaintiff’s damage in relation to risk-bearing capabilities; (5) the 

extent to which damage of the kind the plaintiff sustained is generally considered as a 

normal risk of land ownership; and (6) the degree to which similar damage is distributed 

at large over other beneficiaries of the project or is peculiar only to the plaintiff.’” 

(Gutierrez, supra, 198 Cal.App.4th at p. 848.) 

Again, what is missing from this case is an “unreasonable plan of maintenance.” 

(Arreola, supra, 99 Cal.App.4th at p. 747.) County could have chosen not to 
19

conduct weed abatement, which certainly would increase the risk of fire. Since Komers 

failed to demonstrate, other than by conclusory allegations, that the weed abatement 

maintenance plan was unreasonable, “the trial court properly dismissed their cause of 

action for inverse condemnation.” (Dina, supra, 151 Cal.App.4th at pp. 1051-1052.)

DISPOSITION

The judgment of the trial court is affirmed. Respondent is awarded its costs on 

appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.