Brian Burke was agonizing over whether to appeal the court’s decision in the Mount Soledad landslide case. “Have you ever been too close to something to decide wisely about it?” he asked. He raised the question less about himself than of the attorneys who lost the Mount Soledad landslide case against the City of San Diego. “If I do appeal the verdict,” said Burke, whose home was one of three that were completely destroyed in the slide, “I’ll probably get new legal advice.” Burke was the only plaintiff among the three who would speak with me. The others have been advised to keep silent while their attorneys decide whether to appeal.

“People have told me that an appeal would cost around $100,000,” Burke told me. “It’s a big decision because if the appeal fails, I’ll be buried financially for the rest of my life.”

Too bad attorney Patrick Catalano wasn’t as cautious as Burke in the first days after the slide. That’s when Catalano signed up on contingency to represent 3 of 65 eventual plaintiffs in their attempt to collect damages from the City. He must have been confident, for only 75 days prior to the October 3, 2007 Soledad slide, Catalano had won a $12.5 million settlement from the City of Carlsbad and the Carlsbad Municipal Water District in an apparently similar case. Both cases hinged on whether negligence in maintaining underground pipes caused water to trigger landslides.

As Catalano went to work on the new case, he told the press that the City of San Diego “breached their duty” in allowing pipes on Soledad Mountain to leak. He then noted, “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.” He neglected to mention that the City would do the same.

In an April 2005 edition of Insurance Journal, Edward Burg explained that an earth-movement exclusion on homeowners’ insurance policies is what leads to lawsuits against governments and public agencies. But litigant beware. “Handling earth movement cases is full of traps for the unwary,” wrote Burg. “Getting a skilled expert involved early on is essential to determining whether a theory of liability exists. Counsel need to think like a geotechnical engineer and a hydrologist in order to evaluate cases and advise homeowners.”

Catalano and Catalano, which has offices in San Diego and San Francisco, was only one of five law firms for the plaintiffs, Michael Hearn of Irvine taking the lead in representing Thomas Crabbe, whose home was destroyed. The trial went on for a month toward the end of summer. In his closing arguments, Hearn called attention, as he had throughout the trial, to the waterlines underneath Soledad Mountain Road that ruptured in July, August, and September 2007, only a short time before the catastrophic slide. “I believe the evidence is unequivocal that without the water from the waterline, this landslide would never have happened.

“Interestingly,” Hearn continued, “this slope existed for 40 years before this landslide after development in 1962 through 1967 and had never failed. There was 40 years of rain, 40 years of irrigation, 40 years of development, and it didn’t move until 2007 and it didn’t become a catastrophic failure until after the waterlines broke from July 2007 until September 2007.”

The water leakage on July 18, estimated at up to 100,000 gallons, had been so evident in the neighborhood of the slide that hardly any layperson imagined the water not to have been a cause. And, as Hearn argued, California law had long established that municipal infrastructure does not have to be the only cause of a catastrophe for a city to be held liable. This was an important point because all the experts called in the trial agreed that Mount Soledad has been for centuries an unstable geological formation.

As the trial closed in mid-August, the plaintiffs were optimistic. But superior court judge Ronald Styn came to see it otherwise. The plaintiffs’ attorneys had needed to convince the judge by a preponderance of the evidence that the leaking water was a substantial contributing cause to the landslide. In an October 1 document explaining his decision, Styn wrote: “The court finds that the Plaintiffs have not carried their burden of proof.”

Analysis of Styn’s reasoning indicates that he came to two major conclusions that devastated the plaintiffs’ case. The first was that the water from the City’s leaking pipes did not seep deeply enough into the ground to trigger the landslide. Second, even before the pipes broke, the landmass was already creeping forward, probably causing the pipe damage.

Styn acknowledged an important plaintiff contention, that “the average moisture readings within the slide area are greater than the average moisture readings outside the slide area. This is most noticeable in the area around the July 18 leak. However the average moisture at the toe of the slope is not as high. Logically there would be some elevated moisture around the area of the pipe leak but apparently significant amounts of moisture did not migrate down to the toe of the slope.”

Outside the landslide area, where there was no water, the ground held firm. “Plaintiffs conclude,” wrote Styn, that “the only difference is the leaking pipes which must be the cause of the landslide. While there is logic to this argument, the evidence does not support the theory because there is not significant free water in the landslide mass.”

So what happened to those 100,000 gallons of water that leaked out of the pipe on July 18, 2007? Did they evaporate? “The photographs taken of the July 18 leak indicate that an enormous amount of water bubbled to the surface and came out near the manhole cover. This means the path of least resistance was up and sideways, not down. Therefore it appears that most of the water bubbled to the surface and ran off,” wrote Styn.

Greg Axten, an expert witness for the plaintiffs, had argued during the trial that a process called “dilation” had allowed water to enter the slide mass. “If dilation caused the water to go into the slide mass,” maintained a skeptical Styn, “the water would have had to come out or it would have been evident in the borings or piezometers [instruments that can detect hydrostatic pressure in the ground]. Since the borings (with two exceptions) and piezometers showed no water, there is no persuasive evidence that dilation occurred.”

All parties acknowledged that a clay seam deep in the slide mass had become wet. It was on this wet seam that the land slid.

But Styn doubted that the small cracks in the landslide mass would have allowed enough water from above to make the seam as wet as it became. At any rate, “It would be a very small amount,” he claimed, “and it would take a very long time for a significant amount of water to get through these tiny cracks. The longer time span of irrigation might allow this to happen and therefore it is more likely that water from irrigation caused the increase in moisture rather than water from the water main leaks.”

The plaintiffs’ attorneys wanted to know, of course, why similar patterns of irrigation in the closely surrounding areas did not cause landsliding there.

Key to the City’s position, argued by San Diego attorney Douglas Butz, was a crack in Soledad Mountain Road that appeared in March 2007, four months before the July 18 leak. “When the landslide occurred,” wrote Styn, “the head scarp at the northern end was exactly at the site of the March, 2007, crack. The March, 2007, crack lines up with the Burke house forming the northern edge of the slide. The Burke house suffered cracking which was first noticed on July 30, 2007. This is consistent with the slide originating at the March, 2007, crack and moving towards the Burke house on the northern edge.”

Styn found it telling that vertical displacements — drops in the pavement — were noticed at both the March 2007 crack and at the July 18 pipe break. “The landslide began moving before water from the leaks could reach the slide plane, weaken the clay and start the landslide. The July 24 photographs also reveal cracking in Soledad Mountain Road. This is further evidence that it is likely movement of the landslide began before July 18.

“The movement at the surface would not necessarily be as great as the movement going on subsurface during the early stages of the landslide. If the movement below was much greater than at the surface a 3 inch drop in Soledad Mountain Road could be sufficient to cause the water main to move and cause a corporation stop to pull out.”

A corporation stop is a valve that fits over the service line. It was a corporation stop pulling away from the main line that caused the massive leak on July 18, 2007. Indicating how far the argumentation went during the trial, the plaintiffs maintained that the City improperly installed the lateral pipes, not allowing for goosenecks. The purpose of the gooseneck is to allow flexibility in the pipes should ground movement occur.

Attorneys sparred as well over the existence of “spalling” on the pipes where several pullouts took place. Spalling is a process of breaking small fragments off the face of a material, in this case making the pipe smooth. The plaintiffs argued that the spalling indicated the leaking had been going on for a long time. But the City’s expert, wrote Styn, “testified the spalling could take place very rapidly because the force of the water coming out after a pullout would create a turbulent area and there would be water mixed with dirt which would sandpaper the pipe and create a smooth area.” Styn sided with the latter interpretation and concluded that “the spalling does not support the theory of leaking for a long period.”

I am standing at the site of the landslide that took place two years ago and looking out at the gorgeous view to the east. The street that was once a virtual bowl containing broken pavement has been built up and repaved.

Only moments ago, I came up from the Desert View Drive alley, where the Burke house, having slid down a slope that for years has been steeper than safety standards recommend, crashed into a home owned by the McCormick family. The City demolished the Burke house. There are signs all over the McCormick house warning intruders of the danger therein and advising them on pain of law to keep out. At the northern corner of the house, bunk beds with sheets still on them can be seen through a gash in the outer wall.

My mind goes back to Patrick Catalano’s remark that “you can get an expert to say anything you want” — and to a final detail from the trial. In the explanation of his decision, the judge mentioned two geotechnical firms, one named Ninyo and Moore and the other Helenschmidt Geotechnical, which the City had hired to investigate the slide. (Neither firm agreed to talk to me.)

Judge Styn noted that the City never called witnesses from either Helenschmidt or Ninyo and Moore. He then quoted from the California Evidence Code that “if weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.”

But the judge went on to conclude: “Notwithstanding this rule, the evidence is more consistent with the opinions of the City’s experts than the opinions of the Plaintiffs’ experts.”

Meanwhile, Brian Burke says he will not appeal the judge’s decision. Other litigants and their attorneys are still thinking it over.