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New civil lawsuit blames city, county and state for flood that devastated Merced County

Jesus Torres wades through water carrying bags of his belongings.
Noah Berger
Jesus Torres carries belongings from his flooded Merced, Calif., home on Tuesday, Jan. 10, 2023.

A new civil lawsuit alleges several state and local government entities are responsible and financially liable for floods that devastated Merced and Planada in January.

The suit, filed Dec. 6 in Merced County Superior Court, names Merced County, City of Merced, Merced Irrigation District (MID), the State of California, California Department of Fish and Wildlife (CDFW) and the California Fish and Game Commission (CFGC) as defendants.

According to the suit, the nature of the levees and flooding infrastructure in Merced’s Bear Creek and Planada’s Miles Creek, plus a failure of those public entities to address the creeks’ issues, caused extensive damage to the homes of many residents.

“Strong winds, increased rainfall, and water runoff from the Sierra Nevada Mountains were foreseeable by any reasonably prudent person,” the suit states. “The Merced and Planada floods caused plaintiffs to suffer substantial harms … emotional distress, annoyance, inconvenience, disturbance, mental anguish, and loss of quiet enjoyment of property.”

The suit, filed by Kabetek LLP, a Los Angeles-based firm, and Ehlers Law Corporation from Sacramento, says there are also up to 100 “yet to be named” defendants in the suit.

The suit lists 15 plaintiffs, which include a variety of residents, business owners, tenants and one agricultural plaintiff. The suit states the plaintiffs “believe and thereon allege that the Merced and Planada Floods were caused by a series of failures, attributable to the acts and omissions.”

Calls were placed to representatives from the Merced County, Merced Irrigation District and the City of Merced. CVJC was still awaiting a response from those agencies as of Tuesday evening.

Flood threat has loomed for years, suit says

In Merced, fast-moving waters from Bear Creek rose to over 26 feet, flooding roads and homes, causing property damage and disrupting its residents' lives on Jan. 9.

In the unincorporated community of Planada, Miles Creek suffered a similar fate, causing damage to about 80% of the homes.

No specific amount of money is requested in the suit, which asks for a jury trial. The plaintiffs are asking for a jury trial to cover repairs, depreciation, or replacement of damaged personal property, loss of use, loss of wages, soil erosion, sedimentation and condensation, loss of livestock crops and their yields, evacuation expenses, alternate living expenses and legal fees among other things, the suit says.

Merced County has dealt with a flood risk since the 1950s, when, according to the lawsuit, a series of flood control improvements on streams and waterways, including maintenance of dams and reservoirs to control flooding and other maintenance, was done.

“Despite efforts to mitigate Merced County’s susceptibility to flood, they have continued to occur,” the suit alleges. “The Merced and Planada Floods in January 2023 were another catastrophic example of the unpredictability of climate and the necessity for ensuring proper precautionary measures are taken, without unreasonable delay.”

According to the suit, the state regulates the upkeep of the water channels of Merced County. At the same time, the CDFW is responsible for allowing, permitting, approving, and directing Merced County, the City of Merced, and the Merced Irrigation District to maintain and upkeep the channels.

Despite the efforts of the local public and private entities and the residents of Merced and Planada, “The necessary permitting was never obtained to maintain and repair the levees, canals and waterways,” the suit states.

“The acts and omissions of (CDFW), an unnecessary amount of brush, trees, leaves and other materials piled up in the Bear Creek and Miles Creek.”

The suit alleges the floods violated the plaintiffs’ rights by creating a public nuisance through the negligence of the public entities to address the risk of flooding, causing a dangerous condition for public property.

The violation of public duties from the entities to maintain the creeks to prevent flooding trespassed against those affected as they did not grant permission for any excess water to enter their properties, according to the suit.

The suit is one of a series of other lawsuits that allege the government is responsible for the damages caused by the floods. It is estimated that about 250 Merced County households are taking steps toward suing government entities.

Another lawsuit was filed against the CFWD on behalf of the City of Merced, a local elementary school, and 12 agricultural groups who claimed the CFDW stood in their way to prevent the flooding.

Christian De Jesus Betancourt is the bilingual communities reporter for Central Valley Journalism Collaborative, a nonprofit newsroom based in Merced.