The Battle for Mount Soledad

Friday, Oct. 12, 2007 | Since last week’s catastrophic landslide in La Jolla, city officials have been busy corralling some of the foremost local experts on all things geotechnical.

At the same time, attorneys for the homeowners on Soledad Mountain Road have been reaching out to other experts, making sure their own team is fully stocked for the upcoming legal battle for Mount Soledad. Many of the homeowners, who will likely be denied insurance payouts, have turned to attorneys who are already pursuing litigation against the city for tens of millions of dollars in damages.

It’s a scenario that’s played out many times over the years in San Diego and beyond: Municipal government braces itself for an onslaught of litigation from angry homeowners and well-paid attorneys in the wake of a catastrophe that some say was naturally caused and some say was man-made.

But the rubble of rhetoric spilling from both sides has buried the more fundamental questions of why, exactly, private homeowners have a case to make against the city at all, and what the city’s liability is for damage caused to residents’ property by landslides.

The answer to those questions seems to depend entirely on who you ask.

Attorneys who specialize in bringing landslide litigation against municipal governments say the city is to blame for failing to adequately maintain its aging water and sewage pipes on Mount Soledad. Leaks in those pipes eventually caused the landslide, they said, which means the city should be held liable.

But a retired local geology professor said the lawyers’ science is faulty. Even if the city’s pipes were leaking, he said, the landslide was merely part of the natural geological evolution of Mount Soledad, which means mankind’s not to blame.

Rory Wicks, who represented La Jolla landowners in litigation against the city after a landslide in the early 1990s, and Patrick Catalano, who is representing three of the homeowners affected by last week’s collapse, both explained the geology of landslides in the same basic way.

The attorneys said Mount Soledad has a “clay seam” running through it — a thin layer of clay that sits sandwiched between huge amounts of compacted fill or soil. Wicks said that seam can be as thin as an eighth of an inch in some places. While all things remain equal, the attorneys said, the mountain stays in a state of equilibrium and landslides don’t happen.

But if that clay seam gets wet, they said, it becomes slick. That effectively turns the seam into a slide for the soil sitting above it, Catalano said. Get the seam wet enough, they said, and as the material above the clay gets saturated and heavy, it will eventually slide down the mountain as a landslide.

The source of the water that acts as the catalyst for the slide is usually heavy rainfall, the attorneys said, but sometimes the ground becomes saturated after leaks from water pipes, sewage lines or both.

The city has responsibility for maintaining those water and sewage lines. Therefore, if the attorneys can prove the leaks resulted from negligence on the behalf of the city, then the city can be found liable for the landslide. In San Diego, the city has been fighting an ongoing maintenance battle with an aging water system, Catalano said, and the result is lots of leaky pipes that can eventually cause landslides like the one on Mount Soledad.

“They breached their duty and it’s going to happen time and time again until the city wakes up,” Catalano said.

But Pat Abbott, a retired professor of geology at San Diego State University, called the lawyers’ geology lesson “total fiction.”

“As a career professor, who’s graded term papers and exams on this kind of question for close to 40 years, if that was submitted to me as a report, the grade would be ‘F,’” he said.

Abbott said mountains like Mount Soledad are in an almost constant state of flux. That flux is primarily caused by one thing, he said: Gravity.

If weak rocks, held together by clay and sand, sit on a steep surface, gravity is eventually going to pull them down the mountain face, Abbott said, and that’s exactly what’s happening to the sedimentary rocks on the side of Mount Soledad.

“This is a natural landslide province,” Abbott said. “These parts of Mount Soledad would be having landslides if the area had become inhabited or not — landslides are the natural process, but no lawyer wants that because you can’t sue Mother Nature.”

But lawyers can sue the government, Abbott said, and they will attempt to create a “cock and bull” story about water leaks and clay seams simply to get at the city’s pockets.

In terms of municipal liability, then, what is crucial to the Mount Soledad landslide is the presence of city owned services in the proximity of the landslide. Because the city owns and is tasked with maintaining water and sewage services for the neighborhoods on Mount Soledad, it’s effectively also made itself potentially liable for lawsuits like the one Catalano just filed.

That lawsuit, and any others that may arise from the landslide will consequently hinge on the each side’s ability to convince a judge and jury that their version of the mountain’s geology is correct.

Hence the rush by both sides to recruit San Diego’s top experts in the fields of geotechnical science.

“You can get an expert to say anything you want, you’ve just got to go around and find the expert that will say what you want and you can get him,” Catalano said.

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