Brian Burke was agonizing over whether to appeal the court’s decision in the Mount Soledad landslide case. “Have you ever been too close to something to decide wisely about it?” he asked. He raised the question less about himself than of the attorneys who lost the Mount Soledad landslide case against the City of San Diego. “If I do appeal the verdict,” said Burke, whose home was one of three that were completely destroyed in the slide, “I’ll probably get new legal advice.” Burke was the only plaintiff among the three who would speak with me. The others have been advised to keep silent while their attorneys decide whether to appeal.
“People have told me that an appeal would cost around $100,000,” Burke told me. “It’s a big decision because if the appeal fails, I’ll be buried financially for the rest of my life.”
Too bad attorney Patrick Catalano wasn’t as cautious as Burke in the first days after the slide. That’s when Catalano signed up on contingency to represent 3 of 65 eventual plaintiffs in their attempt to collect damages from the City. He must have been confident, for only 75 days prior to the October 3, 2007 Soledad slide, Catalano had won a $12.5 million settlement from the City of Carlsbad and the Carlsbad Municipal Water District in an apparently similar case. Both cases hinged on whether negligence in maintaining underground pipes caused water to trigger landslides.
As Catalano went to work on the new case, he told the press that the City of San Diego “breached their duty” in allowing pipes on Soledad Mountain to leak. He then noted, “You can get an expert to say anything you want, you’ve just got to go around and find the expert that will say what you want.” He neglected to mention that the City would do the same.
In an April 2005 edition of Insurance Journal, Edward Burg explained that an earth-movement exclusion on homeowners’ insurance policies is what leads to lawsuits against governments and public agencies. But litigant beware. “Handling earth movement cases is full of traps for the unwary,” wrote Burg. “Getting a skilled expert involved early on is essential to determining whether a theory of liability exists. Counsel need to think like a geotechnical engineer and a hydrologist in order to evaluate cases and advise homeowners.”
Catalano and Catalano, which has offices in San Diego and San Francisco, was only one of five law firms for the plaintiffs, Michael Hearn of Irvine taking the lead in representing Thomas Crabbe, whose home was destroyed. The trial went on for a month toward the end of summer. In his closing arguments, Hearn called attention, as he had throughout the trial, to the waterlines underneath Soledad Mountain Road that ruptured in July, August, and September 2007, only a short time before the catastrophic slide. “I believe the evidence is unequivocal that without the water from the waterline, this landslide would never have happened.
“Interestingly,” Hearn continued, “this slope existed for 40 years before this landslide after development in 1962 through 1967 and had never failed. There was 40 years of rain, 40 years of irrigation, 40 years of development, and it didn’t move until 2007 and it didn’t become a catastrophic failure until after the waterlines broke from July 2007 until September 2007.”
The water leakage on July 18, estimated at up to 100,000 gallons, had been so evident in the neighborhood of the slide that hardly any layperson imagined the water not to have been a cause. And, as Hearn argued, California law had long established that municipal infrastructure does not have to be the only cause of a catastrophe for a city to be held liable. This was an important point because all the experts called in the trial agreed that Mount Soledad has been for centuries an unstable geological formation.
As the trial closed in mid-August, the plaintiffs were optimistic. But superior court judge Ronald Styn came to see it otherwise. The plaintiffs’ attorneys had needed to convince the judge by a preponderance of the evidence that the leaking water was a substantial contributing cause to the landslide. In an October 1 document explaining his decision, Styn wrote: “The court finds that the Plaintiffs have not carried their burden of proof.”
Analysis of Styn’s reasoning indicates that he came to two major conclusions that devastated the plaintiffs’ case. The first was that the water from the City’s leaking pipes did not seep deeply enough into the ground to trigger the landslide. Second, even before the pipes broke, the landmass was already creeping forward, probably causing the pipe damage.
Styn acknowledged an important plaintiff contention, that “the average moisture readings within the slide area are greater than the average moisture readings outside the slide area. This is most noticeable in the area around the July 18 leak. However the average moisture at the toe of the slope is not as high. Logically there would be some elevated moisture around the area of the pipe leak but apparently significant amounts of moisture did not migrate down to the toe of the slope.”
Outside the landslide area, where there was no water, the ground held firm. “Plaintiffs conclude,” wrote Styn, that “the only difference is the leaking pipes which must be the cause of the landslide. While there is logic to this argument, the evidence does not support the theory because there is not significant free water in the landslide mass.”
So what happened to those 100,000 gallons of water that leaked out of the pipe on July 18, 2007? Did they evaporate? “The photographs taken of the July 18 leak indicate that an enormous amount of water bubbled to the surface and came out near the manhole cover. This means the path of least resistance was up and sideways, not down. Therefore it appears that most of the water bubbled to the surface and ran off,” wrote Styn.
Greg Axten, an expert witness for the plaintiffs, had argued during the trial that a process called “dilation” had allowed water to enter the slide mass. “If dilation caused the water to go into the slide mass,” maintained a skeptical Styn, “the water would have had to come out or it would have been evident in the borings or piezometers [instruments that can detect hydrostatic pressure in the ground]. Since the borings (with two exceptions) and piezometers showed no water, there is no persuasive evidence that dilation occurred.”