Filed 8/24/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

MERCURY CASUALTY 

COMPANY,

Plaintiff and Respondent,

v.

CITY OF PASADENA,

Defendant and Appellant.

B266959 & B268452

Los Angeles County

Super. Ct. No. BC488745

APPEALS from a judgment and order of the Superior Court 

of Los Angeles County, Richard L. Fruin, Jr., Judge. Reversed

with directions.

Richards, Watson, & Gershon, Robert C. Ceccon, Saskia T. 

Asamura, T. Peter Pierce, and Stephanie Cao; Michelle Beal 

Bagneris, Ann S. Rider, and Javan N. Rad, for Defendant and 

Appellant.

Law Offices of Robert A. Stutman, Timothy E. Cary, Brian 

M. Wong, and Nathan R. Hurd, for Plaintiff and Respondent.

Moscone Emblidge Otis, G. Scott Emblidge and Erin H. 

Reding, for Amicus Curiae the League of California Cities, the 

California State Association of Counties, California Park and 
2

Recreation Society, Professor Daniel P. Selmi, and Professor John 

Echeverria on behalf of Defendant and Appellant.

Jonathan M. Coupal, Trevor A. Grimm, Timothy A. Bittle, 

and Brittany A. Sitzer for Amicus Curiae Howard Jarvis 

Taxpayers Foundation on behalf of Defendant and Appellant.

_______________________________________

INTRODUCTION

In 2011, a storm brought hurricane-force winds to the City 

of Pasadena (City), uprooting more than 2,000 trees. One of 

those trees fell on the home of Sarah and Christopher Dusseault, 

causing severe property damage. Before it fell, the tree stood in a 

parkway that abuts the Dusseaults’ property. Although the City 

owned the tree, there is no record of who planted it.

In 2012, Mercury Casualty Company (Mercury), the 

Dusseaults’ insurer, sued the City for inverse condemnation. 

After a bench trial, the trial court entered judgment in Mercury’s 

favor, finding the tree that fell on the Dusseualts’ home was a 

work of public improvement that supported an inverse 

condemnation claim. The court awarded Mercury $800,000 in 

damages for insurance benefits paid to the Dusseaults, and an 

additional $329,170 in costs under Code of Civil Procedure 

section 1036.

On appeal, the City contends the court erred in finding it 

liable under a theory of inverse condemnation. We conclude the 

tree that fell on the Dusseaults’ home does not constitute a work 

of public improvement for purposes of an inverse condemnation 

claim. Because the City could not be held inversely liable for the 
3

damage caused to the Dusseaults’ home, we reverse the judgment

and subsequent order awarding costs.

1

FACTUAL AND PROCEDURAL BACKGROUND

1. The City’s Urban Forest

The City owns more than 60,000 trees as part of its “urban 

forest.” The City adopted its first formal policy addressing cityowned trees in 1940, when it published the “Official Street Tree 

List.” The list designated an official tree for each street in the 

City.2 The list did not include an inventory of the City’s thenexisting trees or establish any procedures or guidelines for 

pruning, removing, or otherwise maintaining city-owned trees. 

In 1976, the City adopted a “Master Street Tree Plan,” 

which listed the official tree for each street in the City and 

included an inventory of the City’s then-existing trees.3 Like the 

Official Street Tree List, the Master Street Tree Plan did not 

establish any procedures or guidelines for removing or otherwise 

1 The City also appeals from the court’s order awarding costs, 

including attorney fees, under Code of Civil Procedure section 1036. 

Because costs under that section can only be awarded to a plaintiff who 

is successful in bringing an inverse condemnation claim (see Code Civ. 

Proc., § 1036), we also reverse that order.

2 According to the City’s Forestry Superintendant, an official tree 

is a species of tree the City prefers to plant on city-owned property 

adjacent to each of its streets. The Official Street Tree List named the 

Red Box Eucalyptus as the official tree for Hillside Terrace, where the 

tree at issue in this case (a Canary Island Pine) was located.

3 In the Master Street Tree Plan, the City changed the official tree 

for Hillside Terrace from Red Box Eucalyptus to Canary Island Pine.
4

maintaining city-owned trees. In 1989, the City published an 

updated inventory of its trees. 

In 1992, the City adopted Municipal Code Chapter 8.52, 

entitled “City Trees and Tree Protection Ordinance” (Ordinance).4 

The Ordinance established city-wide policies for protecting, 

maintaining, and removing trees that are part of the City’s urban 

forest.5 

The Ordinance identifies the types of trees that fall within 

its scope, including “Public Trees” (public trees) and “Street 

Trees” (street trees). The Ordinance defines a public tree as “a 

tree located in a place or area under ownership or control of the 

city including but without limitation streets, parkways, open 

4 The City amended the Ordinance in 2002 and 2010.

5 Section 8.52.015 states that the purposes of the Ordinance are 

to: “[p]reserve and grow Pasadena’s canopy cover by protecting 

landmark, native and specimen trees on specified areas of private 

property and expanding the protection of street trees and trees on 

public property[;] [¶] [s]afeguard the City’s urban forest by providing 

for the regulation of the protection, planting, maintenance and removal 

of trees in the city[;] [¶] [p]rotect the visual and aesthetic character of 

the city[;] [¶] [i]mprove and enhance property values by conserving and 

adding to the distinctive and unique aesthetic character of the many 

areas of Pasadena[;] [¶] [i]mprove the quality of life for residents, 

visitors and wildlife[;] [¶] [c]reate favorable conditions for the 

protection of designated landmark, native and specimen trees, for the 

benefit of current and future residents of Pasadena[;] [¶] [m]aintain 

and enhance the general health, safety and welfare of the city and its 

residents by assisting in counteracting air pollution and in minimizing 

soil erosion and other related environmental damage[;] [¶] [p]rotect 

and maintain healthy trees in the land use planning processes as set 

forth herein[;] [¶] [and] [e]stablish procedures and practices for 

fulfilling the purposes of this city tree and tree protection ordinance.”
5

space, parkland and including city owned property under the 

operational control of another entity by virtue of a lease, license, 

operating or other agreement.” The Ordinance defines a street 

tree as “any public tree whose trunk is located primarily within 

any parkway, public sidewalk, street median, traffic island or 

other right of way under the ownership or control of the city by 

easement, license, fee title or other permissive grant of use.” 

The Ordinance does not establish specific design standards 

or parameters for the planting or removal of street trees, nor does 

it include any maintenance or pruning schedules for street trees. 

The Ordinance does, however, prohibit members of the public 

from pruning, removing, or otherwise injuring any street trees, 

and it establishes a procedure through which members of the 

public may request the City to inspect, remove, or prune a street

tree. 

The City Manager is tasked with implementing the 

Ordinance. The City Manager’s responsibilities include, among 

other things: planting, maintaining, caring for, and removing 

trees covered by the Ordinance; developing maintenance 

standards for trees located in public places; issuing permits 

under the Ordinance; and enforcing the Ordinance by issuing 

compliance orders or administrative citations. 

In either 2005 or 2010, the City implemented a policy of

inspecting and maintaining its street trees every five years. A 

certified arborist testified that the City’s five-year maintenance 

schedule was consistent with the industry standard for 
6

maintaining trees and exceeded the standards used by most other 

cities.

6 

2. The Dusseaults’ Property

In 2004, Sarah and Christopher Dusseault purchased a 

home on Hillside Terrace in Pasadena. The Dusseaults’ property

is separated from the street by a 20-foot-wide dirt parkway that 

the City owns. At the time the Dusseaults purchased their home, 

four Canary Island Pine trees stood in the parkway.7 The trees 

were planted in the late 1940s or early 1950s by an unknown 

party.

8 

6 While this appeal was pending, we granted Mercury’s request 

for judicial notice of portions of a draft “Urban Forest Management 

Plan” (draft plan), dated April 20, 2015, which a private contractor 

prepared for the City. The portions of the draft plan provided to us 

identify the purposes and benefits of maintaining the City’s urban 

forest, many of which are similar to those identified in the Ordinance, 

and compare the size of, and cost of maintaining, the City’s urban 

forest to those owned and maintained by other cities in Southern 

California. Because there is no evidence that the City adopted or 

implemented any portion of the draft plan, it does not affect our 

analysis. 

7 Throughout this opinion, we sometimes refer to the four Canary 

Island Pine trees located in front of the Dusseaults’ home as “Tree F1,” “Tree F-2,” etc., a designation similar to the one used by the parties 

at trial and by the City in its records documenting the location and 

condition of the trees. When viewed from the street, Tree F-1 is 

located to the left of the Dusseaults’ driveway, and Tree F-2, Tree F-3, 

and Tree F-4 are located to the right of the driveway. 

8 The City does not dispute that, at the time of the incident giving 

rise to this lawsuit, it owned the Canary Island Pine trees in front of 

the Dusseaults’ property because they were located in a public 

parkway.
7

In addition to Trees F-1 through F-4, there were shrubs 

inside the city-owned parkway that the prior owners of the 

Dusseaults’ home had planted. The Dusseaults maintained the 

shrubs using a sprinkler system that they owned.9 The sprinkler 

system also irrigated the city-owned trees, which may have 

caused them to grow between 40 to 50 feet taller than they would 

have grown with only natural irrigation. 

The City inspected the trees in front of the Dusseaults’

property on three occasions between 2006 and 2008. In April 

2006, the City inspected Trees F-2 and F-3 after Sarah Dusseault 

reported that Tree F-3 had started to lean toward the family’s 

house. The City determined that Tree F-3 did not need to be 

removed and scheduled Trees F-2 and F-3 for pruning. In April 

2007, the City pruned Trees F-2 and F-3.10 In February 2008, the 

City removed Tree F-4 after it died. 

In early 2011, the Dusseaults re-landscaped the parkway in 

front of their property. They replaced some of the existing

vegetation with drought-resistant plants and shrubs and 

installed a new drought-resistant irrigation system. A neighbor 

testified that during the landscaping project, one of the workers 

hired by the Dusseaults removed chunks of tree roots near the 

9 According to the City’s Forestry Superintendant, the City allows 

homeowners to landscape the areas of public parkways that front 

private property, with the exception that the homeowners cannot 

remove or otherwise disturb the trees planted in public parkways.

10 The City’s Forestry Superintendant could not recall how 

frequently the City pruned the trees in front of the Dusseaults’ 

property before it implemented the five-year pruning cycle, but City 

records show that before April 2007, Tree F-2 had last been pruned in 

June 1993.
8

base of Tree F-2, the largest of which was about two feet long and 

the width of a human fist.

3. The Storm

During the evening of November 30, 2011, a storm carrying 

hurricane-force winds struck Pasadena. The storm injured more 

than 5,000 city-owned trees, more than 2,000 of which were 

uprooted. Around 12:30 a.m. on December 1, 2011, Tree F-2 fell, 

causing severe damage to the Dusseaults’ home. At the time it 

fell, Tree F-2 was around 100 feet tall.

The storm was unusually destructive for several reasons. 

First, the storm carried hurricane-force winds, which are 

measured at 73 miles per hour or higher. A weather station 

located about three miles from the Dusseaults’ home measured 

gusts of wind ranging from 79 to 101 miles per hour between 

midnight and 3:00 a.m. on the night of the storm. Second, the 

gusts of wind changed direction rapidly. Finally, the winds 

approached the City from an unusual direction. The Santa Ana 

winds that frequently strike the City tend to approach from the 

northeast. The storm’s winds, on the other hand, approached the 

City from the north and northwest. Trees are more likely to fall 

when they are struck by winds that approach from an unusual 

direction because trees “adapt their roots and their branching 

structure to a specific wind pattern.”

4. Mercury’s Lawsuit

Mercury paid the Dusseaults more than $700,000 in

insurance benefits for the damage that Tree F-2 caused to their 

home. In July 2012, Mercury, as subrogee under the Dusseaults’

insurance policy, sued the City for inverse condemnation alleging 

the City was liable for the damage caused to the Dusseaults’
9

home because the City owned Tree F-2.11 On May 11, 2015, the 

court commenced a four-day bench trial. 

On July 24, 2015, the court issued a statement of decision 

and entered judgment in favor of Mercury. The court found the 

City liable for inverse condemnation on the following grounds: 

“1. The tree that fell was a public improvement maintained for a 

public purpose; [¶] 2. The damage to the residence of Mercury’s 

insured was proximately caused by the public improvement; [¶] 

3. The City is strictly liable for the property damage under 

inverse condemnation; [¶] [and] 4. The doctrine of superseding 

cause does not apply, under these facts, to the City’s liability 

under inverse condemnation.” The court explained its ruling as 

follows: “[T]he Canary Island pine tree that fell on and damaged 

the [Dusseaults’] residence was a work of public improvement 

and subjects the City to liability for inverse condemnation. The 

damage to the residence of Mercury’s insured was proximately 

caused by the public improvement. The City’s maintenance of a 

110 foot tall Canary Island pine tree only 60 feet away from the 

insured’s residence exposed that property owner to a peril from 

the falling of the tree, caused by whatever event, to which she 

would not otherwise have been exposed. Because the tree fell 

causing private property damage, and was a work of public 

improvement, the City is strictly liable for the property owner’s 

loss under inverse condemnation. Were the decision otherwise, 

the homeowner would bear a loss for damage caused by a public 

improvement project that is not imposed on other Pasadena 

residents.” 

11 Mercury also alleged claims for dangerous condition of public 

property and nuisance, but it dismissed those claims before trial.
10

On July 24, 2015, the court entered judgment in Mercury’s 

favor in the sum of $800,000. On September 22, 2015, the court 

awarded Mercury $329,170 in costs, including attorney fees, 

disbursements, expenses, and interest, under Code of Civil 

Procedure section 1036. The City timely filed separate appeals

from the judgment and the costs order. We consolidated the two 

appeals for purposes of briefing, oral argument, and decision.

DISCUSSION

1. General Principles of Inverse Condemnation

Article 1, section 19 of the California Constitution allows a 

property owner to recover “just compensation” from a public 

entity for private property that is “taken or damaged for a public 

use.” (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 362.) 

“When there is incidental damage to private property caused by 

governmental action, but the governmental entity has not 

reimbursed the owner, a suit in ‘inverse condemnation’ may be 

brought to recover monetary damages for any ‘special injury,’ i.e., 

one not shared in common by the general public.” (Ibid.)

In inverse condemnation, a property owner may recover 

from a public entity for “any actual physical injury to real 

property proximately caused by [a public] improvement as 

deliberately designed and constructed ... whether foreseeable or 

not.” (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263–

264 (Albers).) Thus, a public entity generally is strictly liable for 

any damage to private property caused by a public improvement 

as that improvement was deliberately designed, constructed, or 

maintained. (Pacific Bell v. City of San Diego (2000) 81

Cal.App.4th 596, 610 (Pacific Bell).) Inverse condemnation 

liability does not arise out of general tort liability, such as 

negligent acts in the day-to-day maintenance or operation of a 
11

public improvement. (Cal. State Automobile Assn. v. City of Palo 

Alto (2006) 138 Cal.App.4th 474, 479 (Cal. State Automobile 

Assn.).) “ ‘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.]” 

(Paterno v. State of California (1999) 74 Cal.App.4th 68, 87

(Paterno).)

The fundamental policy “underlying the concept of inverse 

condemnation is that the costs of a public improvement 

benefiting the community should be spread among those 

benefited rather than allocated to a single member of the 

community.” (Pacific Bell, supra, 81 Cal.App.4th at p. 602.) 

Thus, as the California Supreme Court explained in Albers, the 

primary consideration in an inverse condemnation action is 

“ ‘whether the owner of the damaged property if uncompensated 

would contribute more than his proper share to the public 

undertaking.’ ” (Albers, supra, 62 Cal.2d at p. 262.) In other 

words, “[i]nverse condemnation liability ultimately rests on the 

notion that the private individual should not be required to bear 

a disproportionate share of the costs of a public improvement.” 

(Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 

550, 566.)

2. The City is not inversely liable because Tree F-2 was 

not a work of public improvement and the City’s tree 

maintenance plan was not deficient.

The City contends the trial court erred in finding it liable in

inverse condemnation because Tree F-2 was not a work of public 

improvement. Specifically, the City argues that because there is 

no evidence that the City planted the tree as part of a 
12

construction project serving a public purpose, such as a roadway 

beautification project, the tree was not a work of public 

improvement as that term is used in the inverse condemnation 

context. We agree. 

A public project or improvement is a “use which concerns 

the whole community or promotes the general interest in its 

relation to any legitimate object of government.” (Bauer v. 

County of Ventura (1955) 45 Cal.2d 276, 284.) Whether 

something is a public improvement is a question of law. (Barham 

v. Southern Cal. Edison Co. (1999) 74 Cal.App.4th 744, 752.) We 

therefore independently review the trial court’s finding that Tree 

F-2 “was a public improvement maintained for a public purpose.” 

Only three published decisions have addressed inverse 

condemnation claims arising out of a public entity’s ownership of 

trees, none of which held the entity inversely liable. (See Regency 

Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 

507 (Regency); City of Pasadena v. Superior Court (2014) 228

Cal.App.4th 1228, 1234 (City of Pasadena); Boxer v. City of 

Beverly Hills (2016) 246 Cal.App.4th 1212 (Boxer).) Only two of 

those opinions, Regency and City of Pasadena, discussed whether 

a city-owned tree qualifies as a work of public improvement for 

purposes of inverse condemnation.12

12 Boxer addressed only whether the alleged property interest that 

was damaged by the city’s trees (a right to unobstructed views from 

one’s property) constitutes a sufficient property interest to support an 

inverse condemnation claim. (See Boxer, supra, 246 Cal.App.4th at 

pp. 1217–1225.) The court held that such a property interest is not, by 

itself, sufficient to give rise to a claim in inverse condemnation without 

discussing whether the city’s trees constituted public improvements. 

(Id. at pp. 1219–1225.)
13

In Regency, the California Supreme Court affirmed a 

judgment in favor of the City of Los Angeles on a billboard 

company’s inverse condemnation claim. In that case, the city had 

planted palm trees on its own property along both sides and in 

the median of Century Boulevard as part of a project to beautify 

the road. (Regency, supra, 39 Cal.4th at p. 513.) Regency, a 

company that owned billboards along Century Boulevard, sued 

the city in inverse condemnation, claiming that the palm trees 

obscured the public’s view of the company’s billboards. (Id. at 

pp. 513–514.) Regency alleged that the city’s planting of the 

palm trees in front of the billboards resulted in a taking of the 

company’s “ ‘right of visibility,’ ” which the company claimed 

entitled it to compensation from the city. (Id. at p. 516.) The 

court rejected Regency’s theory of inverse condemnation liability, 

holding that a property owner’s interest in having its property 

viewed by the public, by itself, does not constitute a sufficient 

property right to give rise to an inverse condemnation claim. (Id.

at pp. 519–523.)

As part of its analysis, the court assumed that the planting 

of trees along a city-owned street as part of a highway 

beautification project constituted a public improvement for 

purposes of an inverse condemnation claim. (Regency, supra, 39

Cal.4th at pp. 521–523.) The court recognized that the city’s 

project benefited the public generally and served a public 

purpose—i.e., the maintenance and improvement of city-owned 

roads. (Id. at pp. 521–522.) The court also observed that in

exercising its power to maintain and improve the city’s road 

system, “ ‘[the government] may plant shade trees along the road 

to give comfort to motorists and incidentally to improve the 

appearance of the highway. By so doing [the government] aims 

to make a better highway than a mere scar across the land would 
14

be. If trees interfere with the view of the adjacent property from 

the road, no right is interfered with.’ [Citation.]” (Id. at p. 521.)

In City of Pasadena, the appellate court reviewed an order 

denying the City’s motion for summary adjudication of Mercury’s 

claim for inverse condemnation arising out of residential damage 

caused by a different city-owned tree that fell during the 

November 2011 storm. In that case, the City also argued that “ ‘a

tree is not a work of public improvement that is the proper 

subject of an inverse condemnation action.’ ” (City of Pasadena, 

supra, 228 Cal.App.4th at p. 1231.) The trial court denied the 

City’s motion, concluding there was sufficient evidence to send 

the claim to trial because a trier of fact could find the subject tree 

was a public improvement to support an inverse condemnation 

claim. (Id. at p. 1232.) The City filed a petition for writ of 

mandate challenging the trial court’s ruling, which was denied. 

(Id. at pp. 1232–1236.) 

As a threshold matter, the reviewing court noted that a 

public improvement is a project or use that involves “(1) a 

deliberate action by the state (2) taken in furtherance of public 

purposes.” (City of Pasadena, supra, 228 Cal.App.4th at p. 1234.) 

The court then examined Moerman v. State of California (1993) 

17 Cal.App.4th 452 and Wildensten v. East Bay Regional Park 

Dist. (1991) 231 Cal.App.3d 976 (Wildensten), two cases that 

define when a public entity has not engaged in any deliberate 

action that would give rise to an inverse condemnation claim. 

(City of Pasadena, supra, at p. 1234; see also Moerman, supra, 17 

Cal.App.4th at pp. 456–459 [no deliberate action when the entity 

does not control the movements of wild animals on state land 

that cause damage to a plaintiff’s property]; Wildensten, supra,

231 Cal.App.3d at pp. 978–981 [no deliberate action when the 

entity does not improve or stabilize raw land that it owns and 

which causes damage to the plaintiff’s property during a 
15

landslide].) Next, the court looked to Regency for guidance in 

determining whether the planting of a tree can constitute a 

“public purpose.” (City of Pasadena, at pp. 1234–1235; see also 

Regency, supra, 39 Cal.4th at pp. 521–523.) Drawing from these

cases, the court concluded that “if the instrumentality that 

allegedly caused the plaintiff’s damages (such as a tree) is part of 

the construction of a public improvement (such as a highway 

beautification plan), the public improvement element of an 

inverse condemnation claim is satisfied.” (City of Pasadena, at

p. 1235.)

Ultimately, the court denied the writ petition because a

triable issue of fact existed as to whether the City’s tree that 

damaged the insured’s home was a work of public improvement. 

(City of Pasadena, supra, 228 Cal.App.4th at pp. 1235–1236.) 

Specifically, the court determined that the City failed to present 

any evidence demonstrating that the tree was not part of the 

construction of a public project. (Id. at p. 1235.)

Based on Regency and City of Pasadena, we hold that a tree 

constitutes a work of public improvement for purposes of inverse 

condemnation liability if the tree is deliberately planted by or at 

the direction of the government entity as part of a planned 

project or design serving a public purpose or use, such as to 

enhance the appearance of a public road. Our holding comports 

with the requirement for inverse condemnation claims that the 

complained-of damage must be caused by an improvement that 

was “deliberately designed and constructed.” (See Albers, supra,

62 Cal.2d at p. 263.) Indeed, in virtually every case affirming

inverse condemnation liability, the responsible public entity, or 

its predecessor, deliberately constructed the improvement that 

caused damage to private property. (See, e.g., id. at pp. 254–255 

[a county’s construction of roads caused a landslide]; Pacific Bell, 

supra, 81 Cal.App.4th at pp. 599–601, 607–610 [water main pipes 
16

constructed and maintained by a city burst and flooded private 

property]; Cal. State Automobile Assn., supra, 138 Cal.App.4th at 

pp. 476–484 [sewage pipes constructed and maintained by a city 

backed up and flooded private property]; Imperial Cattle Co. v. 

Imperial Irrigation Dist. (1985) 167 Cal.App.3d 263, 269–271 

[drainage structure constructed and maintained by a public 

entity flooded private property]; Aetna Life & Casualty Co. v. City 

of Los Angeles (1985) 170 Cal.App.3d 865, 872–874 [power lines 

constructed and maintained by public entity sparked and caused 

a fire that damaged private property].)

Our holding is also consistent with a fundamental 

justification for inverse condemnation liability: the public entity, 

acting in furtherance of public objectives, took a calculated risk 

that damage to private property may occur. (Yox v. City of 

Whittier (1986) 182 Cal.App.3d 347, 355; see also Van Alstyne, 

Inverse Condemnation: Unintended Physical Damage (1969) 20

Hastings L.J. 431, 491 [proceeding with a public project without 

incorporating necessary prevention measures for known risks is a 

“deliberate policy decision to shift the risk of future loss to 

private property owners rather than to absorb such risk as a part 

of the cost of the improvement paid for by the community at 

large”].)

Here, there is no record of who planted Tree F-2 or for what 

purpose it was planted. All we know is that the tree was planted

on Hillside Terrace in the late 1940s or early 1950s. At the time 

the tree was planted, it was not the same species as the type of 

tree that the City had designated as the official street tree for

Hillside Terrace. There is therefore nothing to suggest that the 

City planted the tree as part of a planned project or design to 

beautify its roads, or to serve some other public purpose. There is 

also nothing to suggest that the City took a calculated risk by 

planting Tree F-2, or any other tree, near the Dusseaults’ 
17

property. Other than owning Tree F-2 and pruning it in 1993 

and 2007, there is no evidence the City took any deliberate action 

before Tree F-2 fell in 2011. (See Wildensten, supra, 231 

Cal.App.3d at pp. 979–981 [mere ownership of undeveloped land, 

without more, cannot form the basis for an inverse condemnation 

claim].) In short, Tree F-2 was not a work of public improvement.

We also reject Mercury’s argument that the City’s adoption 

of the Ordinance converted Tree F-2 into a work of public 

improvement because the Ordinance promotes the public’s 

interest in maintaining trees. The Ordinance was adopted in 

1992, several decades after the tree was planted. It therefore 

could not have had any bearing on how or for what reason Tree 

F-2 was planted. Further, although one of the Ordinance’s 

general goals is to preserve and grow the City’s canopy cover, it 

does not establish specific design standards or parameters for the 

planting or removal of street trees, nor does it include any 

maintenance or pruning schedules for street trees like Tree F-2. 

We also note that there was no showing that the City’s 

articulated public policy of promoting urban forestry reduced the 

value of private abutters’ property. (See Regency, supra, 39 

Cal.4th at pp. 522–523 [if a street is ornamented so as to be more 

beautiful, the public is benefited generally and the abutter is 

benefited specially]; Clement v. State Reclamation Bd. (1950) 35 

Cal.2d 628, 642 [“The decisive consideration [in an inverse 

condemnation case] is whether the owner of the damaged 

property if uncompensated would contribute more than his 

proper share to the public undertaking.”].) Quite simply, the 

Ordinance does not constitute a design for a public project or 

improvement, nor does it convert Tree F-2 into a work of public 
18

improvement, that subjects the City to inverse condemnation 

liability.13

Citing Marin v. City of San Rafael (1980) 111 Cal.App.3d 

591, Mercury contends that it is immaterial to an inverse 

condemnation analysis whether the City planted Tree F-2 

because the City has since taken ownership of the tree and 

assumed responsibility for maintaining it as part of an urban

forestry program. In Marin, a city was held inversely liable for 

property damage caused by a city-owned storm water drainage 

pipe that had been extended onto private property with the city’s 

approval and at the city’s direction. (Id. at pp. 593–596.) 

Because the city had approved and substantially participated in 

the construction of the extension, and because the city conceded 

ownership of the storm water drainage system to which the 

extension was connected, the reviewing court found there was 

sufficient evidence to hold the city inversely liable for damage 

caused by a work of public improvement the city had deliberately 

designed and constructed. (Id. at pp. 595–596.) Mercury’s 

reliance on Marin is misplaced. Unlike in Marin, there is no 

evidence that the City converted a private improvement to public 

use, or deliberately designed or helped construct the 

improvement. 

13 For similar reasons, the City’s Master Street Tree Plan does not 

constitute a design for a public improvement or convert Tree F-2 into a 

work of public improvement. Like the Ordinance, the Master Street 

Tree Plan was adopted several decades after Tree F-2 was planted. In 

addition, the Master Street Tree Plan does not contain specific design, 

maintenance, or removal requirements—it only establishes a general 

policy favoring uniformity among the trees that are planted on each of 

the City’s streets.
19

Nor is there any evidence that the City’s tree maintenance 

plan established a taking for inverse condemnation purposes. To 

establish an inverse condemnation claim based on a government 

entity’s maintenance of one of its improvements, the property 

owner must show that the plan of maintenance was deficient in 

light of a known risk inherent in the improvement. (See Paterno, 

supra, 74 Cal.App.4th at pp. 87, 90 [distinguishing between a 

negligent government policy or plan and negligent conduct by 

government employees]; see also Arreola v. County of Monterey

(2002) 99 Cal.App.4th 722, 742 [“So long as the entity has made 

the deliberate calculated decision to proceed with a course of 

conduct, in spite of a known risk, just compensation will be 

owed.”].) For example, in Pacific Bell and McMahan’s of Santa

Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683,

disapproved on other grounds in Bunch v. Coachella Valley Water 

Dist. (1997) 15 Cal.4th 432, 443, the cities were held inversely 

liable for flooding damage caused by the cities’ water-main pipes 

where the cities employed policies of waiting until the pipes broke 

or malfunctioned before replacing them. Liability in both of those 

cases turned on the fact that the cities’ plans for remedying 

known risks in their water-main systems were inadequate. 

(Pacific Bell, supra, 81 Cal.App.4th at pp. 607–610 [upholding 

inverse condemnation claim based on break in a cast-iron city 

water pipe; city was aware all such pipes needed to be replaced, 

but maintained a policy of waiting until a pipe broke before 

replacing it]; McMahan’s of Santa Monica, supra, 146 Cal.App.3d 

at pp. 696–698 [damage caused by break in city-operated water 

main that had been in use 51 years despite an assumed lifetime 

of 40 years; maintenance program to replace pipes itself was 

inadequate].) 

In this case on the other hand, the City’s five-year cycle for 

inspecting and caring for City trees was not only adequate, the 
20

undisputed evidence established that it exceeded the standards 

used by most other cities. In other words, there is no evidence 

that the City made “ ‘a deliberate policy decision to shift the risk 

of future loss to private property owners rather than to absorb 

such risk as a part of the cost of the improvement paid for by the 

community at large.’ ” (Paterno, supra, 74 Cal.App.4th at p. 86.)

In sum, we conclude that Tree F-2 was not a work of public 

improvement because there was no evidence it was planted as 

part of a planned project or design serving a public purpose or 

use. We also conclude that the City’s tree maintenance plan, as 

implemented by the City Manager under the Ordinance, does not 

subject the City to liability for an inverse condemnation claim

because no evidence was presented that the plan was deficient. 

Because the City could not be held inversely liable for the 

damage caused to the Dusseaults’ home by the tree, we reverse 

the judgment.

14 Our holding, of course, does not immunize the 

City from all forms of liability for damage caused by its trees. In 

a case like this, a property owner (or subrogee) may still sue the

public entity for, among other claims, dangerous condition of 

public property. (See Gov. Code, § 835; see also Milligan v. City 

of Laguna Beach (1983) 34 Cal.3d 829, 834 [a public entity is not 

immune from liability for a dangerous condition of public 

property created by a city-owned tree that damaged adjacent 

private property].)

14 In light of our holding, we do not reach the City’s arguments 

that the court also erred in finding the tree proximately caused the 

damage to the Dusseaults’ home and by rejecting its contention that 

the November 2011 storm was a superseding cause that cut off the 

City’s liability.
21

DISPOSITION

The judgment and the post-judgment order awarding costs 

to Mercury are reversed. Upon issuance of the remittitur, the 

trial court shall enter judgment in favor of the City. The City 

shall recover its costs on appeal. 

CERTIFIED FOR PUBLICATION

LAVIN, J.

WE CONCUR:

EDMON, P. J.

JOHNSON (MICHAEL), J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.