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Stevens v. 396 Investment Co.5/17/2005
Anaheim hired an internationally known expert on reservoirs and dams to give a separate opinion on the advisability of the plan. That expert also expressed concern with CH2M Hill's proposal. He strongly expressed his opinion that a one-foot thick liner was inadequate and the five-foot liner needed to be fully restored.
It is true that when one expert contradicts another that does not necessarily mean that the opinion of the one cannot constitute substantial evidence of the reasonableness of the plan, despite the opinion of the other. (See Grenier v. City of Irwindale, supra, 57 Cal.App.4th at pp. 940-941.) At the same time, this is not a case in which the second expert expressed his or her own opinion only in hindsight, as a hired expert after litigation has commenced. (See Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 525.) Rather, this is a case in which the expert who had no involvement in creating the problem in the first place was the one strongly recommending against the solution of the engineering firm that had created the problem.
More significantly, Anaheim knew that the reservoir was leaking 34 million gallons per year and that the internationally-known expert it had hired indicated that the seal would be inadequate without the replacement of the five-foot liner. How can an owner of a reservoir reasonably discard the initial design requirement of a five-foot liner, while knowing that the reservoir was leaking 34 million gallons of water per year and being warned that the failure to replace the five-foot liner would leave the already leaking reservoir with an inadequate seal?
Perhaps most significantly, as we shall show, in making its evaluation as to how to proceed, Anaheim considered only itself, not the effect of the leaking reservoir on neighboring properties. Making a decision without taking this into consideration is inherently unreasonable.
The reports and opinions Anaheim cites appear to focus on the structural integrity of the reservoir. There is no indication that either the experts in question or the Division of Safety of Dams gave any consideration to the possible effect of the 34 million gallon per year seepage on neighboring properties. In fact, the record indicates just the opposite.
McDonald testified to the effect that he was concerned about the 65 gallon per minute leakage rate, which he found to be unacceptable. However, his concern, and that of Cooke, was over the dollar value of the lost water, not over the possible effect of the leakage on surrounding properties. McDonald also stated that the focus of the Division of Safety of Dams was on the structural integrity of the dam and the embankments, not on the effect on neighboring properties.
McDonald's testimony is consistent with that of Delparte and Cooke. As Delparte indicated in his testimony, at the time it approved the underdrain abandonment plans, the Division of Safety of Dams did not identify the leakage as "a problem for the stability of the dam." As Cooke admitted, his only concern was with the safety of the dam; it was not part of his assignment to determine whether seepage from the reservoir could adversely impact neighboring properties.
Fritz Carlson, a hydrogeologist with CH2M Hill, described the scope of CH2M Hill's project similarly. He testified that CH2M Hill was addressing the issue of the failed underdrains, but that it was not part of the company's assignment to determine whether the mounding effect would impact neighboring properties. When asked if "anyone performed any analysis at that time to determine whether mounding effect would impact the surrounding area," he replied, "Not to my knowledge."
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