Only winners in creek lawsuit brought by residents against city
are lawyers who’ve lined their pockets with fat fees. We hope
there’s no appeal
The lawsuit filed by Llagas Road resident Judy Berkman and her neighbors illustrates in dramatic fashion the cost of lack of foresight when it comes to litigation.
And it might not be over yet.
Santa Clara County Superior Court Judge Thang Nguyen Barrett recently ruled that the city is not liable for chronic backyard flooding as the result of a seasonal creek. Neighbors had argued that the creek was part of the city’s drainage system and that the waterway had been altered at some point.
Barrett’s decision was strongly in the city’s favor. In addition to ruling that the creek had existed for more than a century, as the city argued, he also ruled that if any man-made improvements had been made, they would not impact the creek’s status as a natural waterway.
Barrett also rejected the neighbors’ argument that city workers who placed sandbags along the creek in 2002 meant the city was exercising dominion over the waterway. Instead, he ruled that the workers were there at the neighbors’ request.
We note that the presence of creeks and its associated risks is disclosed to buyers when they purchase property.
The Llagas Road neighbors are considering whether to appeal Barrett’s decision.
The lawsuit has cost Morgan Hill taxpayers $300,000 to defend, City Attorney Janet Kern said. If the neighbors appeal, that number will increase.
We don’t know how much the neighbors have spent in prosecuting their case, but we’ve heard estimates of $500,000.
Whatever they’ve spent, it’s certain that the only real winners in this case are lawyers who’ve lined their pockets with fat fees.
We have to wonder what it would have cost for the neighbors to fix the creek. We suspect that half a million dollars would cover the repairs nicely.
Neighbors can’t turn back time, but they can abandon plans to appeal. Given the strength of Barrett’s ruling in the city’s favor, we don’t see much sense in throwing more money at lawyers in this case, or in forcing Morgan Hill taxpayers to do the same to defend an appeal.
