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All parties acknowledged that a clay seam deep in the slide mass had become wet. It was on this wet seam that the land slid.

But Styn doubted that the small cracks in the landslide mass would have allowed enough water from above to make the seam as wet as it became. At any rate, “It would be a very small amount,” he claimed, “and it would take a very long time for a significant amount of water to get through these tiny cracks. The longer time span of irrigation might allow this to happen and therefore it is more likely that water from irrigation caused the increase in moisture rather than water from the water main leaks.”

The plaintiffs’ attorneys wanted to know, of course, why similar patterns of irrigation in the closely surrounding areas did not cause landsliding there.

Key to the City’s position, argued by San Diego attorney Douglas Butz, was a crack in Soledad Mountain Road that appeared in March 2007, four months before the July 18 leak. “When the landslide occurred,” wrote Styn, “the head scarp at the northern end was exactly at the site of the March, 2007, crack. The March, 2007, crack lines up with the Burke house forming the northern edge of the slide. The Burke house suffered cracking which was first noticed on July 30, 2007. This is consistent with the slide originating at the March, 2007, crack and moving towards the Burke house on the northern edge.”

Styn found it telling that vertical displacements — drops in the pavement — were noticed at both the March 2007 crack and at the July 18 pipe break. “The landslide began moving before water from the leaks could reach the slide plane, weaken the clay and start the landslide. The July 24 photographs also reveal cracking in Soledad Mountain Road. This is further evidence that it is likely movement of the landslide began before July 18.

“The movement at the surface would not necessarily be as great as the movement going on subsurface during the early stages of the landslide. If the movement below was much greater than at the surface a 3 inch drop in Soledad Mountain Road could be sufficient to cause the water main to move and cause a corporation stop to pull out.”

A corporation stop is a valve that fits over the service line. It was a corporation stop pulling away from the main line that caused the massive leak on July 18, 2007. Indicating how far the argumentation went during the trial, the plaintiffs maintained that the City improperly installed the lateral pipes, not allowing for goosenecks. The purpose of the gooseneck is to allow flexibility in the pipes should ground movement occur.

Attorneys sparred as well over the existence of “spalling” on the pipes where several pullouts took place. Spalling is a process of breaking small fragments off the face of a material, in this case making the pipe smooth. The plaintiffs argued that the spalling indicated the leaking had been going on for a long time. But the City’s expert, wrote Styn, “testified the spalling could take place very rapidly because the force of the water coming out after a pullout would create a turbulent area and there would be water mixed with dirt which would sandpaper the pipe and create a smooth area.” Styn sided with the latter interpretation and concluded that “the spalling does not support the theory of leaking for a long period.”

I am standing at the site of the landslide that took place two years ago and looking out at the gorgeous view to the east. The street that was once a virtual bowl containing broken pavement has been built up and repaved.

Only moments ago, I came up from the Desert View Drive alley, where the Burke house, having slid down a slope that for years has been steeper than safety standards recommend, crashed into a home owned by the McCormick family. The City demolished the Burke house. There are signs all over the McCormick house warning intruders of the danger therein and advising them on pain of law to keep out. At the northern corner of the house, bunk beds with sheets still on them can be seen through a gash in the outer wall.

My mind goes back to Patrick Catalano’s remark that “you can get an expert to say anything you want” — and to a final detail from the trial. In the explanation of his decision, the judge mentioned two geotechnical firms, one named Ninyo and Moore and the other Helenschmidt Geotechnical, which the City had hired to investigate the slide. (Neither firm agreed to talk to me.)

Judge Styn noted that the City never called witnesses from either Helenschmidt or Ninyo and Moore. He then quoted from the California Evidence Code that “if weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.”

But the judge went on to conclude: “Notwithstanding this rule, the evidence is more consistent with the opinions of the City’s experts than the opinions of the Plaintiffs’ experts.”

Meanwhile, Brian Burke says he will not appeal the judge’s decision. Other litigants and their attorneys are still thinking it over.

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Comments

a2zresource Dec. 24, 2009 @ 9:20 a.m.

I imagine that suing the City of San Diego must be a lot like suing SDG&E and Sempra Energy.

When SDG&E was indicted in 2006 over the Encanto Gas Holder site demolition in 2000-2001, the US EPA stated that asbestos would cause our horrible, painful deaths from mesothelioma and other lung diseases in two decades or so. We're about half way there now.

Even though we lost our Proposition 65 case in the public interest earlier this fall, we are keeping documents and the depositions of lab analysts who reported rather significant levels of asbestos in the samples taken both inside and just outside the fence line at the site in Lemon Grove, next to the Orange Line trolley tracks. One day when we do start coming down with lung cancer, the documents may be more useful.

One of those documents is a bulk sample report to Ninyo & Moore stating that two samples (used to get guilty verdicts in the 2007 United States v. SDG&E enviro-crimes trial then tossed out in the dismissed new trial this fall) tested at 40-50% asbestos and 5-10% asbestos (http://eghvsdge.stickywebs.com/oppmemo/att02.pdf).

Amazingly more than enough to get guilty verdicts in District Court, these were not the highest levels found there.

In this state, any large demolition job involving asbestos content greater than one tenth of a percent (0.1%) will get the demolition contractor and site owner in some serious trouble if the state is not so advised... unless the workers at the site can't speak up because they were never informed, which is another serious violation...

From a google of "SDG&E guilty": http://www.justice.gov/usao/cas/press/cas70713-SDGEVerdict.pdf

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SurfPuppy619 Dec. 30, 2009 @ 9:56 p.m.

In an October 1 document explaining his decision, Styn wrote: “The court finds that the Plaintiffs have not carried their burden of proof.”

Once again we see a judge ruling on FACTS, not LAW. Questions of fact are for the jury to decide, not the judge.

He did nothing more than take the place of the jury, and intrude on their sole duty. This is the law today though-cases are not decided by trial and jury, but by judges.

I can guarantee you that Styn has an ego a mile wide......he thinks he knows more than anyone else and is the expert of experts.

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Fred Williams Jan. 4, 2010 @ 10:44 a.m.

How much of this verdict has to do with hatred for Aguirre? We all remember that he said on the scene that it was pretty clear the city was negligent.

Looks like the judge ignored obvious facts and ruled for the city. Instead of finding justice for the wronged and damaged he's protecting the establishment...just another day in America's Finest City, huh?

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