Judge will decide whether Castle Hills creek is storm drain or
seasonal creek
San jose – On a bright and sunny spring day, the lush Japanese garden in the Berkmans’ Morgan Hill backyard is a tranquil place.
A small stone waterfall gurgles into a koi pond. A quiet stream flows beneath an azumaya, the Japanese word for gazebo, which translates as “tranquil place.” Standing sentry over all of it is a towering, ancient oak.
But the Berkmans and their attorneys say all at their home is not as it seems, that the garden is an environmental tragedy waiting to happen and that the stream is a danger to human life. And that it’s all the city of Morgan Hill’s fault.
“This is a very badly bollixed storm drain running through a subdivision,” San Francisco attorney Mark Mosley argued in court recently. “Had it been done right, these problems wouldn’t exist. … Mrs. Berkman was in fear of her life.”
But what Mosley describes as a storm drain, the city calls a seasonal creek. And while there’s no dispute that the channel bisecting the Berkmans’ Deanna Court property is a drainage channel for the homes atop Castle Hills, the argument over what to call it has profound legal implications. If it’s a natural creek, the city has a limited obligation to maintain it. If it’s a storm drain, Morgan Hill could be on the hook for the damages the Berkmans and their neighbors claim to have suffered.
“That’s the question,” Mosley said. “Is the storm drainage ditch that runs across the back of the plaintiffs’ yards a public work, or is it private?”
The waterway has been there for decades and was incorporated into the Llagas Valley Acres subdivsion of northwest Morgan Hill in the 1970s. It borders some properties, but in the case of Bill and Judy Berkman, and their co-plaintiffs Kenneth and Marcia Schneider and Ralph Heron, the channel bisects their backyard.
The plaintiffs purchased their homes with full knowledge of the channel. The Berkmans moved into the neighborhood in 1978, and when they built their garden in 2002 the landscaper incorporated the waterway into the design.
But in a trial that wrapped up two weeks ago, Mosley argued that the city shouldn’t have approved the development as it was laid out and that its failure to properly care for the channel shaved $650,000 from the combined value of the plaintiffs’ homes and threatened the life of the oak tree and Judy Berkman.
Judy Berkman declined to comment for this story and did not testify at the trial, but in an interview, Mosley described the day in 2002 when, he alleged, Judith Berkman was cleaning debris from the waterway and was nearly toppled by a storm surge that rose halfway up her legs in moments.
“You can end up with a fairly dramatic surge of water and it can take you out,” Mosley said in an interview. “It dies down very quickly, but it’s a real problem when it’s raining. The worst is the first rain of the season when you get a lot of debris that is washed down.”
Mosley said the city must be responsible for the channel because it is an integral part of Morgan Hill’s drainage system. The channel collects the water from the Castle Hills watershed and transports it to sewer drains on Llagas Road. The water ultimately ends up in Little Llagas Creek.
“They argue they have a right to force private property owners to use their property as a storm drainage system, but that they’re not liable for it as long as they say they’re not liable,” Mosley said. “That’s a pretty tough argument to make, but they’re sticking to it.”
The two-week trial was argued in front of Santa Clara County Superior Court Judge Thang Nguyen Barrett, who is not expected to rule for several months. When testimony concluded, Barrett requested additional briefs, so even though the trial is over, attorneys are still arguing the case. Lawyers for the city say the whole process has been a waste of time and taxpayer dollars.
“I think it’s very unfortunate that the taxpayers have to pay the burden of costs for what I believe is a frivolous lawsuit,” City Attorney Janet Kern said. “We’ve spent well over $100,000 to date. If she appeals, we’ll have to spend more.”
And Menlo Park litigator John Flegel said the plaintiffs have known all along that the stream is not the responsibility of the city and only complained when a heavy rain washed away rocks from the Berkmans’ new garden.
“The evidence showed that each of the people bought their property knowing there was a creek running across the property,” Flegel said. “The most telling point of all is that they haven’t been able to produce any damage.”
Flegel compared the plaintiffs’ situation to people who move near an airport and then grouse, years later, about the noise.
“What they are complaining about are the normal effects of a creek,” he said. “Silt in the wintertime, erosion, that’s just water. It’s not as if it’s flooded anybody.”
Lawyers for both sides (do) agree on at least one point – it will be months before Barrett issues a ruling.
“If I were a trial judge in a bench trial (a trial without a jury), I’d want to do the same thing,” Mosley said. “He wants us to point him exactly to the evidence that supports our position.”
