Charles Cox; Jean Cox v. Southern California Gas Company; Charles Stayart
Published: Mar. 21, 1998 | Result Date: Feb. 13, 1998 | Filing Date: Jan. 1, 1900 |Case number: CV079990 Verdict – $0
Judge
Court
San Luis Obispo Superior
Attorneys
Plaintiff
Defendant
Experts
Plaintiff
Kent R. Waters
(technical)
David R. Chipping
(technical)
Defendant
Fred H. Schott
(technical)
Frank J. Kenton
(technical)
Kenneth B. Wilson
(Coastside Legal)
(technical)
Facts
In June 1992, plaintiffs Charles and Jean Cox acquired approximately three acres of undeveloped land located in the hills in the western portion of the city of Atascadero. The plaintiffs determined that the site upon which they were going to build their home would be situated in a canyon at the base of two steep slopes containing a natural water course trickling down the hillside onto their property. The plaintiffs designed their own home, which was rendered onto blueprints by a draftsman. The city of Atascadero building department required plaintiffs to retain a civil engineer, primarily to design the septic system and also for grading engineering. As part of the engineer's recommendations, the drainage channel running across the property was to be diverted slightly, and expanded, but no other precautionary measures were recommended. Plaintiffs retained a soils engineer and had their home constructed by a licensed contractor. During March 1995, the area sustained extraordinarily high rainfall. On the date of the incident, March 11, 1995, the rain level in the area was recorded in excess of 4.25 inches, and the rainfall for that day and the two prior days totaled more than half the annual average rainfall. There was a mudslide which flowed down from the hills onto the plaintiffs' property and deposited in excess of 300 cubic yards of mud, rocks, boulders and plant material. The house that was being constructed on the plaintiffs' property was approximately 70 percent completed, and although the structure of the house was not damaged, debris did flow through the adjacent garage, and plaintiffs had to expend their own labor and money to remove the debris and expended further monies in building protective berms and walls. The plaintiffs brought this action against Charles Stayart, the adjoining landowner, and the Southern California Gas Company based on negligence, trespass, nuisance and injunctive relief/abatement theories of recovery. Defendant Gas Company caused the property to be surveyed, and the surveyor's opinion was that the area of failure did not in fact occur on Stayart's property but rather on an adjacent parcel of land. Following the surveyor's testimony, plaintiffs voluntarily dismissed the causes of action for negligence and trespass pursuant to C.C.P. º581, but continued to prosecute the nuisance cause of action based on debris from the bench cut which was made on defendant Stayart's property.
Settlement Discussions
A mandatory settlement conference was held before assigned Superior Court Judge Kenneth Andreen on Jan. 2, 1998. Plaintiffs indicated their willingness to accept $64,000. Defendant Stayart offered no monies, and Southern California Gas Company, which had previously made a statutory offer in the amount of $2,500, indicated that it might be willing to settle for an amount up to about $10,000. The matter was not resolved.
Damages
Plaintiffs sought damages in the approximate amount of $110,000, representing past remedial costs, future remedial efforts, and stigma damages based on the fact that plaintiffs would have to disclose the landslide to any prospective buyers in the future. Additionally, plaintiffs claimed an unspeficied amount of damages for emotional distress. The plaintiffs also sought punitive damages against Southern California Gas Company. Per defendant Gas Co., the issue of attorney fees had been reserved for the cost bill. Plaintiffs claimed they were entitled to attorney fees under federal statutes incorporated in state regulatory law.
Other Information
On the ninth day of trial, after the defense rested, defendant Stayart brought a motion for nonsuit on the remaining cause of action. The court granted the motion, thereby dismissing Stayart from the lawsuit in its entirety. Trial continued with rebuttal testimony, and the jury finally reached a defense verdict as to all causes of action regarding defendant Southern California Gas Company. The Gas Company requested an Act of God defense jury instruction but the jury did not reach that issue because they found no negligence, trespass or nuisance on behalf of defendant Gas Company. EXPERT TESTIMONY: Plaintiffs expert David R. Chipping, a geologist, testified that in his opinion, the bench cut had originally been engineered with a bank sloping into an angle of the bench cut and that the bench cut itself was cut along a fairly steep grade, thus causing any water landing on the bench cut to be carried down the bench cut into an open canyon where the pipeline spanned the canyon. He further testified that the debris flow emanated from the bench cut, which had given way. He also testified that over time, the bank became leveled out due to natural compression and compaction, and this leveling out enabled water to run off the bench cut over the slope. During the heavy rains, the fill constituting the outboard portion of the bench cut became saturated and failed, causing the slide. The defendants countered with evidence based on videotapes and photographs showing that this condition did not in fact exist. Defendants furthermore demonstrated by aerial photographs that there had been an extensive brush fire in the late 1980s, and the combination of the loss of vegetation and heavy rains was the sole cause of the slide. Defendant Gas Company's experts also testified that rodent burrowing caused piping of water in the area.
Deliberation
one day
Poll
9-3
Length
13 days
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