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Salyer v. 396 Investment Co.5/17/2005
nspection report in which it was stated that there was "undoubtedly . . . a flaw in the reservoir lining allowing a direct admittance of water to the reservoir underdrain system," but that Anaheim was investigating the matter and intended "to pursue a vigorous remedial program." Anaheim emphasizes the portion of the report stating that the seepage was within "normal range" and the reservoir was nonetheless "in a safe condition for continued use." In addition, Anaheim cites the testimony of Ronald Frederick Delparte, a civil engineer employed by the Division of Safety of Dams. As his testimony shows, CH2M Hill submitted the underdrain abandonment plans to the Division of Safety of Dams and the Division of Safety of Dams approved those plans. Anaheim also cites a Department of Water Resources internal memorandum dated May 13, 1988 in which it was noted that the underdrain abandonment was complete and that the "reservoir judged to be safe for full storage."
Anaheim argues that any substantial evidence of the reasonableness of the underdrain abandonment plans suffices to put it in the clear. Indeed, "The third element of design immunity, substantial evidence of reasonableness of design, requires only substantial evidence." (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 941.) "[Government Code section] 830.6 makes it quite clear that `the trial or appellate court' is to determine whether `there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.'" (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 66.) "` s long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity. The statute does not require that property be perfectly designed, only that it be given a design which is reasonable under the circumstances.' [Citation.] Generally, a civil engineer's opinion regarding reasonableness is substantial evidence sufficient to satisfy this element. [Citation.] Approval of the plan by competent professionals can, in and of itself, constitute substantial evidence of reasonableness. [Citation.]" (Grenier v. City of Irwindale, supra, 57 Cal.App.4th at p. 941.)
As Anaheim sees it, its approval of the underdrain abandonment plan was reasonable, inasmuch as competent professionals, i.e., CH2M Hill, had recommended it and the Division of Safety of Dams had approved it. This is so, Anaheim contends, even though the June 1987 leakage study had alerted it to the fact that the reservoir was leaking 65 gallons per minute. Anaheim reiterates the fact that Kulikowski indicated the seepage rate was not unusual for an earthen liner and that Cooke viewed the amount of seepage as being small. It also reminds us of the opinions of Kulikowski and CH2M Hill to the effect that the reservoir may have been leaking 65 gallons per minute even before the underdrain system was installed. So, as far as Anaheim is concerned, the reservoir leakage was minimal, the underdrain system had no effect on the leakage in any event, and the underdrain system abandonment was reasonable because it was based on the recommendation of engineers and the approval of the Division of Safety of Dams.
We disagree, for more than one reason. For one thing, the engineering firm recommending the abandonment of the underdrain system without the replacement of the five-foot thick liner was the same one responsible for designing the mal-performing system. Anaheim's own engineering staff expressed concern with CH2M Hill's aban
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