Landslide Suits Are Tough to Win, Experts Say

As residents attempt to fix blame for the deadly La Conchita landslide, legal experts say suing public agencies or even uphill neighbors is difficult unless roads, leaky pipes or other man-made conditions contributed to the collapse.

“When you build on a hillside you are taking a great risk,” said Tarzana attorney David B. Casselman, who has represented individuals, corporations and public agencies in landslide litigation over the last two decades. “No one can guarantee against the effects of Mother Nature.”

Homeowners’ insurance policies generally don’t cover landslide damage -- unless the earth movement was caused by floods or fire damage, legal experts say.

Public entities also are generally immune from liability for issuing permits to build, even in potentially dangerous areas, several landslide lawyers said. But agencies may be held responsible, the lawyers said, if public improvements significantly contribute to a landslide.

In an earlier tragedy at La Conchita, Ventura County was not held liable after 600,000 tons of mud and rock slid down the hill into the ocean-side town in 1995, destroying nine homes.

Residents filed suit against their uphill neighbor, La Conchita Ranch Co., for allegedly over-watering its 688-acre hilltop orchard. Lawyers for the ranch have denied the allegation. But rather than defend itself in court, the company -- which has operated a citrus and avocado farm on a plateau above the community since 1975 -- paid tens of millions of dollars to 112 neighbors as part of a confidential settlement in 1997.

The terms were not disclosed, but landslide lawyers said residents probably waived their legal right -- as well as those of anyone who bought property from them -- to sue the ranch for any further property damage caused by landslides.

A second lawsuit against La Conchita Ranch Co. went to trial and a judge ruled in 1999 that the company was not at fault. The judge found the residents had not proved that irrigation -- not heavy rainfall -- had caused the slide.

Santa Barbara attorney Robert Brace, who represented the 144 La Conchita residents at the trial, said he spent hundreds of thousands of dollars of his own money to sue the ranch, and got nothing in return. He said he doesn’t plan to get involved in any litigation arising from the latest landslide.

“It’s a major financial undertaking,” Brace said. He said he is uncertain whether the judge’s findings in the earlier case may be binding on future litigation.

“Earth movement cases are extremely difficult to pursue and to win” because rain and other natural elements usually are involved, said Kenneth Chiate, a Los Angeles lawyer who represented more than 100 clients whose homes were damaged in the 1983 Big Rock Mesa slide near Malibu.

He also helped negotiate a $19-million settlement with nearly 250 families in the Anaheim Hills after a devastating 1993 mudslide.

“To try to disprove that rain caused it and to try to prove there’s some other contributing cause is difficult,” Chiate said. He said he spent more than $1 million on geotechnical experts and land surveys to prepare the Anaheim Hills case for trial.

Big Rock Mesa residents, including Chiate himself, won a $97-million settlement from the state Department of Transportation and others, in part because they argued that the creation of the Pacific Coast Highway decades earlier had destabilized the mountain.

They also sued Los Angeles County for permitting development in the area and allowing homeowners to stop pumping out excess groundwater, and County Waterworks District 29 for allowing underground pipes to leak into the groundwater.

The case -- which was settled without any of the defendants admitting liability -- was built on the legal theory of “inverse condemnation.”

The theory is easier than most to prove because fault is not a relevant factor, Chiate said.

“All you need to show is that a government improvement played a substantial contributing part in causing the landslide,” he said.

Under the Big Rock Mesa agreement, the homes that were declared inhabitable were repaired and stabilized, Chiate said. The property deeds were amended to disclose both the landslide and a clause that current and future homeowners could not sue the county or state for any new landslide damage.

In at least one case, the county bought the condemned property as a condition of settlement, he said.

After Monday’s La Conchita slide, lawyers predicted that someone may try to argue the 18-foot retaining wall built by Ventura County for $400,000 after the 1995 slide might give residents a legal reason for suing the government.

But Santa Barbara lawyer Joseph Liebman said residents would have to show that the crushed wall somehow contributed to the landslide -- rather than fell as a result of it.

“The purpose of the retaining wall was not to retain the entire slope,” he said.

Santa Monica attorney Craig Collins, however, still suspects the ranch “destabilized the hill, either by road-cutting or by over-irrigation.”

Regardless of who may be responsible, newer La Conchita residents may have a legal way out if they were never told of the potential for landslides.

“If full disclosure is not made, any seller would be guilty of civil fraud,” Liebman said.

In fact, a Ventura County judge ordered one former La Conchita couple to repay the sale price of $280,000 plus legal fees to another couple who bought their three-bedroom home on Vista Del Rincon Drive weeks before the 1995 landslide.

Although their house sustained minor damage, the new owners sued, claiming the sellers had lied about the hillside and failed to disclose two smaller landslides that occurred nearby. They kept the house but said at the time they would not live there.

Los Angeles attorney Benjamin Reznik said Ventura County has one simple but costly solution to end the dangerous slide conditions in La Conchita: Condemn the property and pay owners a fair market value.

Ventura County officials so far have rejected that idea.