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Wong v. 396 Investment Co.5/17/2005
er, Hendrix did not rely exclusively on piezometer data. In his testimony, Hendrix indicated that he had reviewed information pertaining to the June 1987 leakage test and he opined that the reservoir leaked 34 million gallons per year. That figure, we note, is the one derived from the June 1987 leakage test. Hendrix mentioned this figure several times in his testimony. Indeed, in explaining his groundwater mound theory, he specifically stated: "And the presence of this mound, because of its enormous mass and water pressure[,] creates, in essence, a subsurface dam formed out of this huge mass of groundwater, 34 million gallons per year." In explaining an exhibit, he said: "These arrows here are a reflection of, in essence, the pressure of that water created by that groundwater dam, that subsurface dam, if you will, related to that 34 million gallons of water a year." From this testimony it is clear that Hendrix took the results of the June 1987 leakage test into consideration.
Still focusing on piezometer data, Anaheim tells us that such data was available to anyone who asked for it. Moreover, Anaheim contends that 396's geotechnical consultants did in fact investigate the reservoir and its seepage data in 1981, as part of their buttress design work. Therefore, Anaheim asserts, 396 was aware of the impact of the reservoir on surrounding properties.
Let's see. The record shows that in 1981, there was a "back- cut failure" or a minor landslide where grading work was taking place on Tract 10439, near the reservoir site. This was four or five years before 396's predecessor in interest acquired the project. At the time of the back-cut failure, the civil engineering firm for the project was J. P. Kapp and Associates and the geotechnical engineering firm was GeoSoils, Inc. Representatives of these two firms had various meetings with representatives of Anaheim in July 1981, following the back-cut failure. During one meeting, Kendall Tilley of Anaheim showed John Sayers and Albert Kleist of GeoSoils, Inc. the original plans of the reservoir and some Crandall soils reports. Tilley also provided them with some piezometer readings. However, at trial, Tilley could not recall whether he had given them one year's worth of piezometer readings or more than that. He explained that the type of information he provided would have contained information on the reservoir's seepage.
Anaheim says that while the information provided did not include the June 1987 leakage report, as it obviously could not have in 1981, it contained the "relevant" information - that the reservoir was earthen lined and seeped like all earthen lined reservoirs do. As previously discussed at length, however, the reservoir design, as recommended by the Crandall reports, contemplated "extremely low" seepage. Moreover, we do not know the extent of the piezometer readings provided to GeoSoils, Inc. and we do not know if they were sufficient to indicate a substantial seepage, along the lines of 34 million gallons per year. We cannot, therefore, say that the geotechnical engineers, in 1981, had knowledge of the type of seepage that would give rise to a claim against Anaheim more than 15 years later. Similarly, we do not know whether the seepage information was sufficiently noteworthy that GeoSoils, Inc. would have communicated that information to 396's predecessor in interest some four or five years later, when that developer acquired the project. Moreover, there is no evidence to show that such a communication in fact occurred.
Indeed, Joseph Patrick Kapp, the civil engineer, worked with GeoSoils, Inc. on the project. He attended at least one meeting with the GeoSoils, Inc. and Anaheim representatives. Kapp testified that ther
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