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In Alvis v. County of Ventura (October 20, 2009) 09 C.D.O.S. 12821,
Division Six of the Second Appellate District affirmed the trial
court’s grant of Defendant County of Ventura’s motion for summary
adjudication (MSA) in a dangerous condition action arising out of a
fatal landslide. In addition to design immunity issues which I won’t
describe in this summary, the court found plaintiff’s expert’s
declaration in opposition to the MSA contained statements that
conflicted with a prior statement the expert made in a report to an
insurance company about the landslide. Though conflicting statements
by experts on each side of a MSA or MSJ typically establish a
triable issue of fact, the Alvis court held that because plaintiff’s
expert’s prior, unsworn statements conflicted with his declaration
in opposition to the MSA, no triable issue of fact was created.
The Alvis decision goes into great detail about the background of a
retaining wall that was built near the site of a landslide in an
unincorporated area of Ventura. There was evidence the objective of
the wall was not to contain any future slides from the cliff above
the planned site of the wall, but to restore access to the nearby
County road which had been blocked by landslide debris. After much
analysis and planning, the wall was built. About four years after
the wall was built, another massive slide occurred, overwhelmed the
wall, killed 10 people and destroyed 16 homes. The Alvis family lost
their son in the slide and they sued the county for wrongful death,
dangerous condition of public property, nuisance, property damage
and inverse condemnation. Their complaint was consolidated with 22
other complaints, all of which are referred to as “Alvis” in the
decision.
The County moved for summary adjudication on a design immunity
theory on all counts except for inverse condemnation. County
submitted a detailed declaration by the civil engineer who oversaw
the project from its inception. There was evidence that he, on more
than one occasion prior to the construction of the wall, stated that
the “wall was not designed to prevent future landslides or mud
flows.” He confirmed the design was thoroughly considered, felt to
be appropriate and viable, and was constructed as designed. The
County submitted the declaration of another registered civil
engineer who was also deputy director of the County’s transportation
department and who declared it was his opinion the wall was designed
in accordance with good engineering practices.
Plaintiffs submitted the declaration of a registered geotechnical
and civil engineer, Dr. Singh, in opposition to the motion. Dr.
Singh’s declaration stated the slide was caused by the fact the wall
did not allow proper drainage and “the clayey soil behind the wall
became saturated, exerted tremendous forces against the wall and
ultimately contributed to the wall’s collapse.” In his opinion, the
saturated soil behind the wall both created the slide and diverted
the debris flow which caused plaintiffs’ damages.
County objected to Dr. Singh’s declaration “on the grounds that its
conclusions are without foundation and are contradicted by an
earlier report he made.” It submitted an additional declaration by a
civil and geotechnical engineer in support of its objection; that
engineer stated Singh’s declaration directly contradicted statements
he made in an earlier report to State Farm Insurance, and was itself
“internally inconsistent.”
The trial court granted County’s motion. While it overruled both
party’s evidentiary objections, it observed that it found “the
declaration of Dr. Singh on those issues unconvincing because it
consists largely of conclusions without a substantial foundation, is
vague and is contradicted in some respects by his prior report
written in February of 2005.” The matter proceeded to trial on the
inverse condemnation action, which was dismissed by plaintiffs
during trial.
On appeal, Alvis claimed Dr. Singh’s declaration raised a triable
issue of fact that required the trial court to deny defendant’s
motion for summary adjudication. The appellate court noted that in
the context of a summary judgment and adjudication proceeding “the
moving parties’ declarations are strictly construed and those of his
opponent liberally construed, and doubts as to the propriety of
granting the motion should be resolved in favor of the party
opposing the motion.” However, even though the trial court may have
admitted Singh’s declaration into evidence over defendant’s
objection, “it found the declaration did not constitute substantial
evidence so as to raise a triable issue of fact,” a point which
appellant’s apparently ignored in the opinion of the appellate
court.
On its de novo review, the court of appeal affirmed the trial
court’s findings:
“Most significantly, Singh’s declaration asserts that the slide
started at the bottom of the cliff when the wall failed. This
directly contradicts his prior statement in a report to an insurance
company that ‘[f]ailure started as a landslide in the upper reaches
and then flowed at a rapid rate down to the developed area below.’
This is not a minor point. Singh’s statement that the slide started
in the upper reaches of the cliff directly undercuts the premise on
which his entire declaration is based. Yet, Singh offers no
explanation.
In reviewing motions for summary judgment or adjudication, courts
have long tended to treat affidavits repudiating previous testimony
as not constituting substantial evidence of the existence of a
triable issue of fact. (Cites omitted.) Singh’s prior statement was
not in the form of testimony under oath. But the same reasoning
applies. We cannot accept as substantial evidence of a triable issue
of fact a declaration that directly contradicts the declarant’s
prior statement, where the contradiction is unexplained. We may not
ignore this significant contraction.”
It does appear the court was impressed by the fact neither
plaintiffs nor their expert attempted to explain or put into some
context the prior conflicting statement. It is significant, though,
that the court holds a prior, unsworn contradictory statement can
render an expert’s declaration (and presumably his or her testimony)
incapable of creating a triable issue of fact, particularly where
the expert makes no effort to explain the inconsistencies in his
opinions. It will be very important to be familiar with any and all
statements of opinion a plaintiff’s expert has expressed in a
case—whether sworn or unsworn— when making a MSJ or MSA as any
variance in opinion can be used to argue the declaration does not
constitute substantial evidence of a triable issue of fact.
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