Another Appellate Win for DAR in Landslide Case

Jim Weixel, of the firm’s Walnut Creek office, obtained a reversal of a summary judgment against the firm’s clients in a long-running landslide case in Contra Costa County.  A neighboring landowner argued, based on a declaration from his geotechnical engineer, that it was undisputed his property was not within the slide mass (the area of land subject to moving during a landslide) and thus could not have damaged the clients’ property.  A declaration from defense geotech found clear evidence of land movement on the neighbor’s property, including significant deformations of the driveway and sidewalk, thus proving the neighbor’s property was within the slide mass.  In reversing summary judgment for the neighbor, the Court of Appeal held that the competing declaration from the firm’s geotech created a material issue of fact as to the role the neighbor played in causing the landslide.

The Court relied largely on a principle it had followed in its previous decision in the same case:  if a moving party includes a fact in its separate statement, the party cannot later treat that fact as immaterial when the opposing party puts forth contradicting evidence.  The neighbor had done so here, resting his motion on the premise that his expert’s declaration had shown the property was not in the slide mass, but then claiming that point was immaterial after Weixel’s expert provided evidence to the contrary.

Not only did the opinion result in a reversal of the summary judgment, but it also vacated an award of costs of almost $45,000 against the firm’s clients.

The decision is Insalaco v. Padilla and can be read here.  Publication request pending.