Facts

Plaintiffs Michael Toschi and Tracy Toschi were downhill neighbors of defendants Don and Rhonda Dallimonti. On or about June 18, 2006, the Toschis erected a large dirt and concrete berm in the county of San Mateo's right of way and covering the paved edge of the roadway directly across from the Dallimonti driveway. A dispute ensued over the removal of the berm. The Toschis claimed that they had placed the berm in order to mitigate alleged damage to their property caused by surface water runoff. The Dallimontis alleged that the berm was installed illegally without the required permit and substantially interfered with the Dallimontis' egress from their driveway. On July 15, 2006, the county issued a "Notice to Remove Encroachment." In mid to late September 2006, after additional complaints had been made by the Dallimontis, the Toschis filed a citizen's complaint against Don Dallimonti, a sergeant with the County Sheriff's Department, and filed a TRO against both Dallimontis.

On Dec. 4, 2006, the county of San Mateo constructed an asphalt swale along Upper Park Road, located in unincorporated Redwood City. This newly constructed swale runs parallel to the Toschis' property line at the upper portion of a steep hill that is wooded and contained three mature heritage oak trees. In a letter dated Dec. 29, 2006, the former director of public works for the county, Neil Cullen, wrote that "the recent paving of the drainage swale was not intended to and will not eliminate the issue of storm water runoff on your property, and the runoff is likely to continue its historic pattern of draining onto your property." The Toschis claimed that the "historic pattern" of surface water runoff along Park Road was directly down the street to a drainage inlet, and not onto the Toschis' property. The county claimed that the historic runoff from Park Road directed surface water into a seasonal creek, a natural watercourse on their property, which plaintiffs altered in 2001.

On Jan. 14, 2008, one of the Toschis' heritage oak trees fell onto the home and property of Grace Whipps. Neither Whipps nor anyone else was injured when the approximately 80-foot tree came crashing down. The fallen tree did cause extensive property damage to both the property of Whipps and the property of the Toschis.

PLAINTIFFS' CONTENTIONS:
The plaintiffs contended that the county and the Dallimontis retaliated and conspired to retaliate against the Toschis for exercising their right to complain to government officials, which is protected by the First Amendment, in violation of 42 USC Section 1983.

Plaintiffs claimed that the county violated the plaintiffs' right to equal protection under the Fourteenth Amendment by treating them differently from their similarly situated neighbors regarding construction in the public right of way along Upper Park Road.

The plaintiffs also argued that the county was liable for strict liability inverse condemnation for discharging surface water onto the Toschis' property. In the fall of 2006, the Toschis hired Bruce Matheson, a professional engineer, to evaluate the damage caused by the surface water runoff. On Dec. 14, 2006, Matheson prepared a report that provided in pertinent part: "It is our opinion . . . that the newly installed asphalt swale is incomplete and should be extended to the property line to eliminate the gap. If this is not done, it could result in undercutting the roadbed, the loss of more heritage oak trees, as well as landsliding on the Toschi property, and present a serious safety hazard to you [the Toschis] and your neighbor [Grace Whipps]."

DEFENDANTS' CONTENTIONS:
County of San Mateo contended that road inspector and various maintenance crew members and neighbors observed a berm to prevent the natural drainage from flowing onto their landscaped yard, and in the swale that provided a natural, historical runoff to the creek in plaintiffs' backyard for over twenty years.

According to counsel for the county: In 2001, plaintiffs landscaped their backyard and filled in and piped the creek without a permit, which altered the natural watercourse. Plaintiffs also cut major buttress roots of a tree that eventually fell in 2008. In 2006, plaintiffs built a berm, again without a permit and without the assistance of an engineer. Although plaintiffs were told before the lawsuit how to remedy their problem by piping the surface water down to the seasonal creek, they refused to do so.

The county removed the illegally constructed berm from the public right of way. The swale was later restored at the plaintiffs' request, but the natural gap was left open to facilitate natural drainage patterns.

Plaintiffs employed Bruce Matheson, a professional engineer, to evaluate the conditions allegedly caused by the surface water runoff. He was not told, however, that the plaintiffs cut the toe of the slope, buttress roots to trees, filled in, piped and landscaped the creek all without permits and engineering. Matheson believed all these changes would have an impact on slope stability and on drainage. Defendant's expert later proved that the gap area drainage runoff had been there for many years preceding plaintiffs' purchase of their property.

As to the Dallimonti defendants, the Dallimontis denied plaintiffs' accusations and contended that the plaintiffs' berm was installed illegally and substantially interfered with the Dallimontis' use and enjoyment of their property.

According to counsel for the Dallimontis: Following the construction of plaintiffs' berm, the Dallimontis immediately complained to county officials. On July 15, 2006, the county issued a "Notice to Remove Encroachment". Yet despite this notice and the expiration of a permit for plantings and removal of the berm, the Toschis failed to comply. It was not until mid and late September 2006, after additional complaints had been made by the Dallimontis to the county, that the Toschis file a citizen's complaint against Don Dallimonti, a sergeant with the county sheriff's department, and then a TRO against both Dallimontis. An internal affairs investigation exonerated Sgt. Dallimonti of all accusations. Although the Dallimontis' complained against the Toschis first, plaintiffs alleged in their civil rights complaint (filed June 13, 2007) that the Dallimontis "retaliated" and "conspired to retaliate" against the Toschis for exercising their First Amendment right to complain to government officials.

Defendants vehemently disputed plaintiffs' allegations and the case was hotly contested (46+ depositions and extensive motion practice).

Result

The case settled during two separate settlement conferences before Magistrate Judge Joseph Spero. At the first conference, the parties agreed on the settlement amount. County of San Mateo agreed to contribute $650,000 and Don and Rhonda Dallimonti agreed to contribute $200,000 towards the settlement. At the second conference, the county and the plaintiffs reached an agreement on the injunctive relief providing the installation of a drainage system and privacy fence. The settlement included an engineered solution at the plaintiffs' expense, which piped the surface water drainage down to the seasonal creek area with a permit, the same remedy recommended by the county inspector before the lawsuit. According to plaintiffs' counsel: The case settled after plaintiffs defeated defendants' motion for summary judgment on plaintiffs' claims for retaliation, conspiracy to retaliate and inverse condemnation. According to defense counsel: Plaintiffs claimed to have incurred $1 million in attorneys' fees by the time of the settlement conference. From the defense standpoint, this was a meritless civil rights case driven by attorneys' fees. The Dallimontis' $200,000 contribution to the settlement was paid entirely by their insurance carriers and without any admission of fault or liability.

Other Information

According to plaintiff's counsel: The Toschis, as well as numerous neighbors including Rhonda Dallimonti, testified to varying degrees that the historic pattern of surface water runoff was down Park Road to the drainage inlet at the intersection of Park Road and Woodland Place, and not through the Toschis property. According to defense counsel: Rhonda Dallimonti testified that the historic drainage pattern also directed some of the water runoff onto the Toschi property. FILING DATE: July 13, 2007.