RW&G

Court Of Appeal Affirms Summary Adjudication In La Conchita Landslide Case

On October 20, 2009, the California Court of Appeal, Second District, Division Six, issued a published, unanimous opinion affirming the granting of summary adjudication in Alvis v. County of Ventura et al., 2nd Civil, Case No. B212337. That lawsuit arose out of a catastrophic, January 10, 2005, landslide that resulted in personal injury and property damage, including ten deaths. Thirty-seven plaintiffs sued the County of Ventura (“County”) seeking tens of millions of dollars in damages. Plaintiffs alleged that the landslide was partially caused by a retaining wall that the County built at the base of the hillside adjacent to the landslide area.

Richards, Watson & Gershon represented the County. The County moved for summary adjudication based on the design immunity defense established by Government Code Section 830.6 to challenge plaintiffs’ claims for wrongful death and personal injury, including dangerous condition of public property and nuisance. The County submitted evidence showing that the County Board of Supervisors approved the design of the wall, and that substantial evidence established that the approval was reasonable.

Plaintiffs contended that the approval was not reasonable because the Board was not fully advised of questions raised concerning the design by a consultant. Plaintiffs argued that the County’s exercise of discretion must be knowing or informed. The Court of Appeal disagreed, stating, “Section 830.6 does not state the approval must be knowing or informed. A court may not rewrite a statute to make it conform to a presumed intent that is not expressed.” The Court of Appeal concluded that the Board’s decision was informed because, when the Board approved the project, it had before it plans stamped by engineers and the recommendation of its professional engineering staff.

This ruling is important for governmental entities because it is the only appellate decision issued in the last two decades to address squarely whether the approval element of design immunity requires an “informed” approval.

Plaintiffs also contended that the County lost design immunity because of changed conditions. Specifically, they claimed that water built up behind the wall that caused or contributed to the landslide. The Court of Appeal ruled that plaintiffs could not argue that water build-up behind the wall was a changed condition because the County had examined drainage in detail during the design phase. Plaintiffs could not claim that the same condition was both a design defect and a changed condition.

This ruling is important for governmental entities because it clarifies and narrows the types of defects that a plaintiff can claim to be a changed condition.

published: October 2009


FOR ADVICE FROM RW&G CONCERNING GOVERNMENTAL TORT LIABILITY ISSUES, PLEASE CONTACT ROBERT C. CECCON, SASKIA T. ASAMURA, MICHAEL F. YOSHIBA OR ANY OF THE LAWYERS IN THE FIRM'S LITIGATION DEPARTMENT.


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