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Wong v. 396 Investment Co.5/17/2005
t Anaheim having such knowledge knew the reservoir had become dangerous because of the change in physical conditions (the leakage rate exceeded the capacity of the impermeable clay liner's design to `reduce seepage losses' and the reduction of the clay liner depth to one foot in the area of the abandoned underdrain). Having unsuccessfully attempted remedial work to bring the reservoir back into conformity with its design or plan Anaheim did not reasonably give notice or attempt to give notice or adequate warnings of the dangerous condition to the City of Orange, adjacent property owners or the plaintiffs."
It has been held that a public entity's failure to comply with an obligation to provide information to the claimant can form the basis of an estoppel. (Canfield v. Prod, supra, 67 Cal.App.3d at pp. 727, 730-733; accord, Lentz v. McMahon (1989) 49 Cal.3d 393, 400; see also J. H. Thompson Corp. v. DC Contractors, supra, 4 Cal.App.4th 1355.) That is to say, the defendant public entity, by remaining silent, acts in such a way as to induce the claimant to believe that all is well and to perform no investigation that would lead to the discovery of the ill giving rise to the claim.
The members of the public are entitled to assume that a nearby reservoir presents no danger unless the public entity that owns the reservoir provides warning of the dangerous condition. Anaheim's failure to provide the requisite warning that the reservoir was leaking 34 million gallons of water per year was unconscionable. The second requirement of the estoppel test is clearly satisfied. (See Canfield v. Prod, supra, 67 Cal.App.3d at pp. 727, 730-733 [failure to inform as basis for estoppel]; see also Fredrichsen v. City of Lakewood (1971) 6 Cal.3d 353, 359 [government will be estopped when it has acted unconscionably]; accord, Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1049.)
(v) 396's Knowledge
That leaves the third requirement. Anaheim contends this requirement, that the party asserting estoppel is ignorant of the true state of facts, is not met because 396 had knowledge of the impact of the reservoir on surrounding properties. However, in response to this court's request that Anaheim cite any portion of the record showing that the results of the June 1987 leakage test were made known to the plaintiff property owners or any developers of the properties at issue in this litigation, Anaheim replied, "Anaheim is not aware of anything in the record that shows that the specific results of the 1987 leakage test were `made known' to any of the property owners or 396 . . . ." Anaheim further expressed its view that the results of the leakage test were irrelevant and that, in any event, those results would have been available to 396 if it had made a Public Records Act (Gov. Code, ยง 6250 et seq.) request.
Anaheim misses the point. The point is not that 396 could have made a Public Records Act request if it had had reason to suspect the massive reservoir leakage; the point is that Anaheim gave no warning that would have alerted 396 to the need to make a Public Records Act request in the first place. We see nothing in the record to show that 396 was aware of the 34 million gallon per year leakage.
From Anaheim's point of view, however, that information is unimportant. As far as Anaheim is concerned, the only data that mattered to show the impact of the reservoir leakage on surrounding properties was the piezometer data, not the results of the June 1987 leakage test. Indeed, Anaheim contends that all of the expert witnesses relied on piezometer data, not on the leakage test.
Anaheim cites, as an example, the testimony of Hendrix. Howev
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