Who Can You Blame When Land Collapses?

LAGUNA NIGUEL — Almost immediately after a hillside collapses and homes topple, the finger-pointing begins.

Owners of once sturdy homes stare at the rubble and figure someone must pay. This act of God can’t be prevented, but someone should have foreseen this tragedy.

Was the hillside graded properly? Was the soil packed down enough? Was the foundation deep enough? Where were the city building inspectors? Were the neighbors watering too much, or did they divert a natural drainage path?

The list of those to blame goes on, and lawyers skilled at finding fault plumb the depths of contracts, other people’s insurance policies and government records to help their clients recover what they can.

“The rains have brought these issues to the forefront,” one lawyer says. “We don’t live on bedrock like they do in Manhattan.”

The path to economic recovery through the court process is well-trodden and very long. Lawsuits filed years ago haven’t yet gone to trial. The common targets are developers, graders, engineers, geologists--and sometimes cities.

In Laguna Niguel, residents are angry at developers for hauling in tons of fill dirt to build a slope supporting a row of affluent homes. The slope partially gave way early Thursday, toppling two houses and demolishing five condominiums at the base of the hill.

“I blame the developers who graded the property. They’re the ones who are responsible,” said Ann Andrews, whose hilltop home is next to one tagged unsuitable for occupancy. “They say it was the storms, but El Nino was just the icing on the cake.”

Geologists have predicted in recent years that a landslide would occur at the slope, created for the hilltop subdivision known as Niguel Summit. Indeed, state geologists said as long ago as 1973 that much of South Orange County’s hillsides are unstable because of ancient landslides and earthquake faults.

But that hasn’t stopped developers from getting housing tracts ready for builders, and it hasn’t stopped residents from later suing developers in an effort to recover their losses from slides and other earth movements.

In Mission Viejo, one of the earliest of the master planned communities, numerous soil slippage lawsuits have been filed against the developer, the Mission Viejo Co., over the past decade. Typically, the suits were settled before going to trial. Terms were kept confidential.

In Laguna Beach, two former Dunning Drive residents blame the city for failing to repair leaky underground drain and sewer pipes that, they contend, caused land movement during 1995 storms and destroyed their homes. The city asserts that over-watering by one of the residents made the land unstable. Trial is scheduled in June.

Thursday’s slide in Laguna Niguel is the nightmare come true for residents. The Crown Valley Parkway Condominium Assn., which oversees the condo complex at the bottom of the hill, had sued Niguel Summit developers and the subdivision’s homeowners association four years ago, alleging defective grading and workmanship. The suit is pending.

Often, developers will try to move quickly to resolve obvious defects.

“We find that builders of single-family homes damaged by soil problems often buy back the homes and repair them in order to avoid suits and keep things quiet,” said Thomas E. Miller, a Newport Beach construction defects lawyer.

In some of the Mission Viejo cases, for instance, the company purchased the damaged homes from disgruntled owners and resold them after repairs were made.

Damage from soil movement usually happens because South County tract homes often aren’t built on natural terrain, says Irvine lawyer Kenneth Kasdan, also a specialist in construction defect litigation.

“Builders can get much greater density--and more profit--if they alter the natural slopes and canyons,” Kasdan said. “So they create flat pads where there used to be canyons--or on terraces cut into hillsides.

“There’s a reason a canyon is there,” he said. “Water cut it into the terrain, and water still runs there. When you fill one up, you’ve got to take that into account.”

Lawsuits against cities are much less common than those against developers, geologists, graders, soil compactors, neighbors and others who alter land. That’s because government entities are immune under state law from most negligence lawsuits.

Even if a city official forgets about a fault under a vacant plot and approves a building permit, the city usually isn’t liable. Owners of damaged homes have to show actual fraud or corruption, such as a builder paying off an inspector to ignore a defect, said Philip D. Kohn, city attorney for Laguna Beach.

But cities and counties face tougher issues when homeowners claim that a city facility or service damages their properties, he said.

“For example, if a city is involved in excavating the [bottom] of a slope and removes support for a house above, I could foresee some liability,” Kohn said. “Or where a public storm drain in the normal course of operation causes a discharge of water onto private property and [makes a slope unstable], I could see that as possible liability.”

That’s just about what Melvin and Elizabeth Erger say happened to them on Dunning Drive in Laguna Beach.

The retired couple claim that a city storm drain and sewer pipes have long leaked, destabilizing the soil and causing a landslide in 1995. Part of their house tumbled down a canyon, and the remaining part is unlivable. They had to move into a rental unit they own.

A neighbor’s house also fell and was demolished. The former Dunning Drive residents then filed separate suits against the city. Trial is scheduled for June. The city contends that its pipes didn’t leak, and that the Ergers’ neighbor over-watered, saturating the soil.

Since the landslide, Melvin Erger, 82, has suffered a heart attack and a nervous breakdown. He attributes his health problems to stress brought on by the loss of his home.

“I started to cry all the time, I couldn’t stop,” he said. “I couldn’t sleep. I still can’t sleep. I went through my savings. I must have spent $2,500 just for medicine last year.”

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Sliding Blame

When a landslide occurs, finding the right party to blame is complicated. Sometimes it’s just Mother Nature, or a neighbor who left the sprinklers on too long. And the process of building a housing development is complex, with responsibilities for testing and preparing the land spread across the planning table. A look at who’s involved in readying land for housing:

Developer

* Buys land

* Hires soils engineer, grading contractors

Soils Engineer

* Samples soils, identifies ancient landslides and locates underground drainage courses

* Reports findings and recommendations for preparing the site for construction

* Resamples soils at each lot before fine grading

* Audits all grading

Rough Grading Contractor

* Rough grading includes compacting fill soil and excavating ancient landslides

* A city or county grading inspector checks the grading, compaction and drainage installations

Fine Grading Contractor

* Prepares each lot for construction

Sources: Thomas E. Miller; Kasdan, Simonds, McIntyre, Epstein & Martin;

Researched by JOHN O’DELL / Los Angeles Times