*1 Dist., Five. June 1991.] Second Div. B045402. [No. VAILL, v. Plaintiff and Respondent,
DANA LENAHAN Commissioner, etc., JR., EDMONDS, Defendant Real JAMES A. as Estate and Appellant.
Counsel General, Edmond Attorneys John K. Van de and Daniel E. Lungren, Kamp General, Defendant and Attorneys B. Mamer and Jack T. Kerry, Deputy Appellant. Bonesteel, Tho- Armstrong, Bruce A.
Haight, Roy Weatherup, Brown & G. Charchut, Vaill for Plaintiff and Edward E. mas N. Jon M. Kasimov Respondent.
Opinion Real
GRIGNON, of the California Department The Commissioner J. real Dana to sell Estate ordered the revocation of Lenahan Vaill’s license estate on the that she violated Business and Professions Code grounds failing section subdivision to disclose to of a residence (g) by buyers the existence of a hazard on dangerous geological occurring events at a called of Los County Angeles to discuss case, this hazard. At the time of the events at issue this Business and Professions Code section 10177 stated relevant part, “The commissioner or revoke . . who may suspend the license of real estate licensee . has any done any Demonstrated or following: (g) negligence incompetence [f] act for which he . performing any is to hold a license. . .” Vaill required for a writ of mandate in petitioned court. its superior Applying independent case, judgment to facts of this court found that Vaill superior in no conduct which engaged give could rise to or revocation of suspension her license and vacated the commissioner’s license revocation order. We conclude that the trial court’s evidence. judgment supported by substantial Background
Procedural The Amended Accusation
On October the commissioner filed an amended accusation *4 Vaill against two containing “causes of accusation.” The first cause of accusation alleged grounds for or revocation of Vaill’s license suspension 10176, under Business and (a) (i) Professions Code section subdivisions fraud, The (misrepresentation, or dishonest second cause of accu- dealing). sation alleged that Vaill violated Business and Professions Code section 10177, that, in (g), subdivision as areal negligent estate she was salesperson, or in incompetent connection with the sale in of house 1983. 1982, Vaill,
In in her April role as a salesperson, negotiated sale of a residence at 20279 Inland in Lane Rock Big Mesa area of Malibu.1 seller, as the Acting agent Vaill the sale negotiated property Hudson, 15, 1983, John and Nancy and on March escrow was Vaill opened. resided on Inland Lane near the home the Hudsons were purchasing. 28, 1983,
Vaill received a letter dated March addressed to her as a owner property from County Angeles, Los Department County Engineer Facilities. The letter referred to a “serious and hazard- potentially ous in condition” Rock Mesa area Big County. of Los Angeles condition consisted of “the alarming rate of rise of the water.” The ground letter indicated that “unless the high ground water table is down kept artificial means serious damage occur.” The letter may invited the property 12, 1983, owner to a on meeting April at 7:30 the Malibu Civic p.m. Center Library.
Vaill attended 28, mentioned in meeting the letter dated March 1983. discussed, alia, At the meeting, a “County engineer inter of land danger movement caused by high ground italics) water” (original Big Rock 12, 1983, Mesa area. At the April meeting Vaill a document signed request- ing the establishment aof Service “County Area” to deal with the high
1 Thefacts in this section are taken alleged from the facts in the amended accusation. the Hudsons on the sale of the property escrow problem. 3, so unstable closed on 1983. became May By January property that the Hudsons were to move. compelled incompetent
The amended that Vaill was or alleged negligent accusation 15, 1983, First, March four after the escrow was respects. opened the March “failed to inform” the Hudsons “that she received Second, incom- negligent letter.” Vaill was to have been or alleged April to have that she attended the informed petent failing “in which in the Rock Big of land movement danger Mesa Area and the need for a Service Area or Assessment County Special Third, District to solve the discussed.” Vaill failed to help problem was had occurred two notify buyers property “only that landslides houses from the during ... at three different time periods [] she, Finally, nearby 1970’s.” Vaill failed to as a notify buyers owner, had “attended to the money of and contributed meetings Malibu Mutual Drainage Company, entity purpose operating whose water pumps Rock Mesa Area to alleviate Big potential problems land in the instability area.”
The Commissioner’s Decision
After a an hearing, administrative law determined that Vaill did not judge “fraud, commit negligence, or this incompetence on facts law of case.” The commissioner rejected the administrative law judge’s findings and concluded that Vaill had been within the negligent incompetent or 10177, meaning of Business and Professions Code section subdivision (g). Specifically, commissioner concluded that Vaill or negligently incompe- tently failed to advise the concerning levels and future costs which would in be incurred removing connection with the of necessity the groundwater. The commissioner concluded that her negligence or incom- petence constituted a ground for or revocation of her suspension salesper- 10177, son’s license pursuant to Business and Professions Code section result, subdivision (g). As a the commissioner ordered revocation of her license and authorized the issuance of a restricted real estate salesperson’s license pursuant to Business and Professions Code section 10156.5. The Petition Writ Mandamus 23, 1989,
On February Vaill petitioned court for a writ of superior mandate compelling the commissioner to her revoking vacate his order real estate saleperson’s license. The superior court issued an alternative writ of mandate and set the matter for The heard hearing. argument court superior indepen- ruled court July superior
on the motion on 1989. and, thereafter, under submission. the matter took dent test judgment applied court superior for Vaill was entered. judgment On October vacate writ mandate the commissioner directing a peremptory issued dismissing and enter a new order Vaill’s license revoking his order Vaill with against prejudice. accusation the superior from the timely judgment
The commissioner appealed court.
Facts2 to look for a home Nancy began In John Hudson and his wife Inland a home on a bluff on Malibu. The Hudsons were shown purchase real estate area Malibu Vaill another Big Lane Rock Mesa Inland make an offer on the The Hudsons decided to agent, Donna Stewart. with Vaill and Stewart. it three or four times viewing Lane after property entered into the Hudsons negotiation selling price, After some over in February of 1983. agreement purchase property the Hudsons that one one of their visits to the Vaill told During property, Escobáis, houses, with water owned had a neighboring problem a to handle pump on the and the Escobáis had installed draining The Hudsons could see water from the Escobal problem.3 pump buy. wanted to from a at the end of the driveway property they pipe suffered a landslide 1971. Vaill told the Hudsons that Escobáis had their the area with Stewart the Hudsons to discuss the encouraged geology homes on Inland Lane. who built several nephew, developer (the geological report the Hudsons with a of 1972 provided copy the Hudsons were interested regarding Merrill Report) *6 that, engineering The Merrill to according stated buying. Report records, landslide,” of the “lies within an ancient but that part property be The Merrill analysis. lot seemed to stable based on soil tests and geologic installed, noted that horizontal drains had been but that continual Report rise in groundwater due to on the mesa had “caused housing development seacliff, number of new and in the face and toe springs along of seeps concluded, with several The landslides.” report “[gjroundwater buildup synthesis testimony presented 2These facts are a evidence before Administrative and Judge Ranger. Law Richard E. spent 3The deposition Escobáis later testified at in connection with this matter that had $8,000-$10,000 $250 per electricity pump additionally, month for to run the and to install and maintain the to pump period years. previously over a This information was not known Vaill. systems as private disposal to continue as long Rock Mesa is
Big expected resulted, in and do so may has are utilized. deterioration Locally slope resulting with the mesa “deform might plastically future.” It noted that “The The stated: report possibility to structures” damage earthquake. installation, all dwellings minimized and connection of through could be of the Big It is understood that some sewerage. Rock Mesa to Big public to drain the ostensibly Mesa owners have formed an association Rock John Hudson read but their efforts to date are unknown.” groundwater, and groundwater Merrill and its references to landslides Report, despite did him it not cause to be concerned about buildup, property. Stewart, firm of Vaill hired a to Upon urging produce and report a current of this second geological report of property. purpose (the the existence of dated March was “to evaluate Byers Report), any stability obvious hazards on the site and assess geologic visually intended to to the Hudsons’ it. John Hudson property,” prior purchase of this visual but had participate inspection difficulty reaching property via the east just Pacific Coast which was closed due to a landslide Highway, due the Pacific property. very Hudson arrived for the late inspection Coast Highway steady landslide. The told Hudson about the geologist Hudson, erosion on the did who property, joked but this not seem to trouble that he would be dead before the bluff all the to the house. way eroded
The Byers stated that a the end Report at steep slope 175 feet down dropped to the Pacific Coast and “is eroded Highway, locally and exhibits signs of surficial its are “blanketed instability,” upper portions bedrock, soil, weathered which subject colluvium are to erosion surficial failure Like upon saturation of intense rainfall.” during periods the Merrill Report, Byers confirmed that Report “[hjigh groundwater area,” known to exist the Big Rock and that drains were used to dewater the hillside. The report noted that the house itself did not show signs distress, date, cracking or well to concluding performed and that the risk of erosion and minimized instability by improved could be drainage control. The report that modifications or provided improvements drainage facilities should be made as It stated: “It should be necessary. out pointed that hillside properties subject are hazards not found potential floods, in conventional flatland These hazards include mud- developments. slide, erosion, ravelling and concentrated slopes drainage. potential *7 damage of these hazards can reduced maintenance greatly by slopes be and drainage facilities. It is the of the hillside homeowner to responsibility maintain his or her and to deficiencies found property improve any during occupancy John Hudson believed the property.” Byers Report gave a property “clean bill of health.”
The only earth movement problem Vaill was aware of was suffered Escobáis, who told her they had lost an automobile a landslide. Vaill told revealed, the Hudsons about this slide. The Hudsons when were first they at the looking property, they were warned of the and geological hazards see wanted to a geological report, at which them point provided she with Merrill Report. informed They her that would their obtain they definitely own geological report as well and did not want escrow to until had open they obtained the report.
The sellers of the discussed the with John property erosion problem Hudson, unconcerned, who seemed him and showed that the fence at the back of the yard fallen down the cliff high face. also discussed the They Escobáis, groundwater problem suffered by the who resided two doors down addition, In street. swimming curious to know why inwas pool front of the house instead of behind the house near the bluff and the sellers told them it was because there was a fault geological running across the back of the property. 16,1983,
The Hudsons escrow opened on March after receiving Byers a Report. Subsequently, home inspection report produced by company hired for this purpose. Again, this concerned the Hudsons. nothing report 30, 1983, The title insurance for the policy issued on March indicated that a portion of the land “is as hazard designated ‘geological ” area’ on the tract map. Hudsons thought this meant could not build on the of their land portion closest to the The title bluff. insurance also stated policy that the Malibu Mutual Drainage had the Company right certain levy drainage maintenance charges as assessments against property. escrow, Biddlecomb,
While the inwas Edwin G. regional engineer for the Los Angeles County Facil- Department County Engineer ities, sent a dated letter March approximately residents of lower Big Rock Mesa. The letter stated:
“The Los Angeles County Engineer’s office has been made aware aof serious and potentially hazardous condition to the relating Big lower Rock Mesa area of Malibu. This condition rate is of rise of the alarming ground water level this the Los vicinity. Recently, Angeles County [¶] Flood Control District has encountered problems repairing replacing drains storm storm conveying waters from the mesa to Pacific Coast High Twice concrete way. pipes draining destroyed by Inland Lane have been landslides. Presently temporary above anchored ground flexible conduit cables now takes care of the drainage. The to contin subjec[t] bluff area sliding uous sloughing, unless the water table is kept high ground *8 occur, [¶]In means, order to protect may serious damage down artificial by facilities, the entire mesa the and drainage basically access roads necessary area, on a term basis. As water level ground long it is to lower the necessary area, are to a public invited you a on affected mesa owner the Room, 23519 Library Meeting held at the Malibu Civic Center to be meeting Malibu, 12, At this 1983 at 7:30 p.m. Center on Way, April West Civic nature, and of extent significance information on meeting specific Department from this engineers geologists will be discussed problem to this We also solutions explore Flood Control District. will area.” County a Service including the formation of problem, possible Vaill, had The sent a the letter who lived since county copy She buying. Lane a few from the the Hudsons were Inland houses stolen being did not receive letter. Numerous instances of mail this in the were Vaill knew nothing children neighborhood reported. a her ride to the immediately prior until asked for a meeting neighbor her Vaill had no neighbors. oppor- Vaill attended the with meeting. meeting the Hudsons to invite Hudsons to the No one else told tunity meeting. the letter or meeting. about the public Keene,
The In attendance were Art meeting held on 1983. April Johnson, district county, head for the Mike flood control engineer-geologist Cid, Armando geologist, division Biddlecomb and an estimated 30 engineer, to the give homeowners. was to information purpose meeting about of their homeowners and to advise them groundwater problem available courses of were advised action. At the homeowners meeting, that should A take action to combat groundwater county problems. noted at geologist that when the in the mesa became ground saturated, and, it was level very groundwater to landslides prone Lane, to the surface rose Inland a He stated that “the along causing landslide. area,” water affect the if water high ground problems entire that surface controlled, were not the bluff. affecting erosion would increase homes on mid-1970’s, It was noted in the the county any had disclaimed liability county area. feared problems Because action them vetoed the any damages, make liable for it had might establishment or a improvement maintenance district small county heart and was district. Just undergone change recently, district. willing to establish some of assessment help type homeowners district that a hazard abatement geologic homeowners advised was a This district is formed possible type apparently solution. *9 256 manner:
following percent owners 10 of the assessed valuation representing in the area initiate to property request county proceedings establish abatement district. Some of money required initial investment is order obtain board geologic report. Alternatively, supervisors the initiate the their may proceedings any own motion without initial invest- ment homeowners. All are proposed homeowners notified of the district, received, heard, is a vote public comment oral statements are and is taken. Owners assessed valuation must vote representing percent formed, favor of the If district before it could be formed. a district were it have taxing would and eminent domain powers.
The homeowners were could county also advised that establish county service area to take care of the Under this groundwater problems. scenario, the work county perform would and assess the necessary It owners. was also discussed hire the that homeowners could county to take care of the and with problem pay county voluntary contributions. The contribution method had been used voluntary previously during the period Malibu Mutual was in existence. Drainage Company made,
Cost were estimates from a response ranging low questioning, few of a thousand dollars to the three simply existing restart pumps $110,000 lines, $10 for new hydraugers, and observation wells to a high million. Head Engineer-Geologist Keene stated: “I’m stating plan $110,000 costs is there more than need! All you you’ve got today to do start to pump existing get wells and on a minimal and use common program sense!” available,
After the meeting two sign-up sheets one entitled Rock “Big Mesa Ground Water Problem” and the “We Following other Are in Favor of Service County Rock Mesa.” Vaill both Area-Big signed sheets. Homeowners who attended the did come meeting not from it away feeling that their homes were in any “whatsoever” of or that danger damage there was a “panic situation." Vaill did not disclose what at the transpired meeting to the Hudsons. Vaill felt the to tell only point meeting was local homeowners to reactivate the which had been dewatering pumps earlier, installed many years but whose was not funded. operation During meeting, Vaill stood up expressed county concern to the geologists engineers that there was an active Rock slide between Big Topanga Canyon close might off the Pacific Highway. Coast did not cause Vaill her own home on to be about concerned Inland Drive or the thought She any were buying. concerns were sufficiently (1) addressed by: geologist hired in his believed, and reveal who, records Hudsons, would research she occurrences; mentioned which (2) Merrill Report landslide any report the Esco- Hudsons about with the (3) her discussions groundwater problem; *10 to the efforts; which referred (4) title report dewatering báis’ feel she did not zone. She in a hazard being geological as the Hudsons to advise the area of the of geology knowledge sufficient the subject. further on months Two May of 1983. on the Inland Lane property
Escrow closed In an later, house. September, the Hudson tiles to crack inside began crevice, side of bluff-facing up 14 to 15 feet deep, opened enormous At public the house. a throughout the Hudsons’ and cracks yard, appeared area, month, neighbor, in the a that the earth movement regarding Escobal, the Hudsons had failed to give Hudson that Vaill Nancy told Gayle unstable. for to be years which was known full disclosure about the property, 1984, home to their geologist In invited a county of January He them the house if live there. told they safely to find out could continue to Based and that the would continue. damage was to a landslide subject this, The property of the house. immediately the Hudsons moved out This to zero. dropped condemned and its value county, appraised the real estate against the Hudsons to institute a civil lawsuit prompted brokers, sellers, the loss of and others over agents county, geologists, their house. time resided on they
The the short during Hudsons testified period Lane, when danger aware the groundwater Inland first became they the home. in their moved into flyer they someone a mailbox after dropped $1,500 homeowners both testified that contributed local They they they testified They efforts on the mesa. also group support dewatering if aware of a would not have the house had been purchased danger. or landslide
Discussion Standard Review right is a fundamental vested right to practice one’s profession
and if is revoked by license person’s profession to practice brought administrative writ of mandate is when a for a agency, petition license, judgment restoration of the its independent must apply the trial court (Bixby v. to its review decision. administrative facts underlying 234, 242]; (1971) 130, Pierno 4 481 P.2d Cal.Rptr. Cal.3d 144-146 [93 258 Bd.
Drummey v. State (1939) Funeral 13 85 P.2d Directors Cal.2d [87 848].) court trial correctly test this applied independent judgment case. rule,
Under the independent the trial must judgment weigh court evidence make its own determination as to whether the administrative be findings should sustained. When an is taken from trial court’s appeal determination, it is effect given the same as other after trial any judgment rendered (not the court: the is whether the court’s trial only question agency’s) administrative are evidence. findings supported by substantial (Petrucci (1975) v. Board Medical Examiners Cal.App.3d [117 735].) Conflicts in favor Cal.Rptr. the evidence must be resolved *11 and two drawn judgment reasonably where or more inferences can be from facts, the court the trial reviewing accept by must inferences deduced (Anderson (1985) court. v. Latimer 670 Cal.Rptr. Cal.App.3d [212 544].) Supports
Substantial Evidence the Trial Court’s This Case as to Findings in Vaill’sWarnings Concerning Instability Big Water Table High and Rock Mesa
The Commissioner that Vaill or contends was negligent incompetent to advise the failing Hudsons existence of hazards geological However, associated with Inland Lane as to the problems property. movement, high caused water by table with the earth resulting danger of we determine that substantial evidence the trial court’s supports findings that Vaill was neither in her negligent nor advice incompetent regard as to First, those hazards. the Hudsons themselves saw the pump draining Escobal told, testified, water and were as John Hudson that the Escobáis had “a problem with water on the and had a landslide in property,” experienced Thus, 1971. the time from of the Hudsons’ initial with the contact property, they were aware that neighbors lots down the had “water two street prob Nevertheless, lems.” at no time to the did the prior close of escrow Hudsons attempt to communicate with the nature and Escobáis extent of regarding the landslide and groundwater or the costs ameliorative problem measures.
Second, in high groundwater was confirmed problem writing both the Merrill the Byers The Merrill geological reports. Report disclosed mesa, tanks, that on the accompanied by the use development septic caused rise the groundwater, a continual to several landslides and leading the Merrill slope Significantly, deterioration. warned continued Report “in the future.” The deterioration commissioned the Hud- Byers Report by Mesa, groundwater noting sons reconfirmed Rock that problem Big This report hillside to remedy in the problem. had been installed drains erosion, mudslides, subject also that hillside properties warned Merrill she Report, the Hudsons the gave Vaill only not drainage problems. followed They secure their own report. also Hudsons recommended then and the was Byers prepared. Vaill’s advice Report Third, another yet disclosed the Hudsons groundwater problem that a fence Hudsons time who also showed the the sellers by property, due to erosion. The the face of the bluff on their tumbled down built not be swimming pool sellers also disclosed their could there that area. running through because was a fault backyard Fourth, report in the title the existence of the fault was substantiated part The title reveals that received the Hudsons escrow. during report inis hazard area.” “geological Fifth, groundwater both the affirmatively disclosed to no evidence landslide There is problems suffered Escobáis. to the property there were or landslide problems peculiar also the Hudsons failed to The record shows bought by which Vaill disclose. *12 and they Vaill the their own urged geological report Hudsons to obtain told her were aware of area. hazards of the geological
The commissioner excessive the letter places importance announcing 12 The unrefuted letter April public meeting. testimony regarding was that Vaill did not There no that Vaill had receive it. evidence the letter possession of at time of Hudson any during pendency Her escrow. own constituted substantial evidence that she was testimony neither nor a letter she never incompetent failing for to discuss negligent saw. itself, the meeting
As for in terms of the issue it high groundwater, of reiterated that the merely groundwater entire area had a which problem did required activation of tenor not existing pumps. a sense of levels and future earth convey urgency rising terms water any movement. The 12 new April meeting impart attended Vaill did not that had previously information not been disclosed the Hudsons already to concerning high groundwater.
There is no evidence that transaction—the involved this any person sellers, Merrill and geologists Byers, the the county— even neighbors, a few anticipated would suffer within failure geological Vaill, months after the Hudsons purchased it. The argues commissioner 260
who is not a geologist or engineer, should anticipated somehow have 1983 earth movement and warned the Hudsons of it. This requirement is too much prescience to even on a A impose more reasonable geologist. construction of the licensing statutes would require provide Hudsons with existing them geology reports, urge to commission their own independent geologist, and to disclose landslide suffered problems There by neighbor. is substantial did evidence she all of these things.
The facts of this case are far different from those described the case commissioner, relied upon by (1984) Easton v. Strassburger Easton, Cal.App.3d A.L.R.4th 521], 99-100 In Cal.Rptr. [199 plaintiff purchased a without any awareness of a soil or problem slides, past although the defendant real estate agents should have been alerted to potential problems recommended a geological test. prop erty slid and subsequently was seriously damaged. The found jury liability contrast, fraud and and the negligence Court of affirmed. Appeal By this case the Hudsons were alerted to potential problems by geological reports, landslides, which alluded to high groundwater and and future past and by Vaill’s statements regarding Escobal property.4 Substantial Supports Evidence the Trial Court’s Findings in This Case as to County Recommendations Representatives and the Potential Cost Managing the Groundwater Problem Disclosed at the April Meeting
We have concluded previously that there is substantial evidence the information relating dangers of high groundwater and the associated risk *13 of landslides were conveyed to the Hudsons. We have also previously Vaill, concluded that the 12 April meeting, attended did by not impart any new information that had not been already disclosed to the previously Hudsons, concerning high groundwater. contends, however,
The commissioner that there is no substantial evidence to the trial support court’s implied that finding Vaill was not in negligent to failing Hudsons of the apprise other matters which were discussed at the April meeting. Specifically, the commissioner argues that Vaill should have disclosed to the (1) Hudsons: that the county 4 Another “critical” issue discussed the commissioner need only briefly. be discussed It regards (MMDC), Malibu Drainage Mutual Company organization which formerly operated mesa, dewatering but pumps on the was disbanded in 1975. The MMDC had previously been funded from by voluntary contributions homeowners. Inasmuch as the disbanding of the drainage apparent effect on the company had no mesa after there is no why reason Vaill needed to discuss it with the in 1983.
261 area; (2) in the levels the rising groundwater any liability was disavowing district abatement that a hazard recommending geologic was established; We disagree. a district. (3) costs of such and the potential be if it is found that her license or to revocation subject suspension act for any in performing or negligence incompetence she has demonstrated Code, subd. (Bus. & Prof. § to hold a license. which she is required to disclose is required the seller she agent representing As a real estate (g).) desirability value or affect the materially facts which would buyer case, Code, a failure that (Civ. 2079.) undisputed In this it is the property. § associated level and the risk of landslides disclose the high groundwater fact a material a failure to disclose with the would constitute Strassburger, supra, (Easton v. resulting negligence. finding however, concluded, was this information that 90.) We have Cal.App.3d disclosed to the Hudsons. adequately decide, therefore, the other failure to disclose
We must whether negligent meeting which were discussed at the April matters court’s the trial material. We conclude that substantial evidence supports and not negligent was not conclusion that the nondisclosure implied material. Vaill had was that gravamen complaint
It is clear that the of the Hudsons’ risk. stated They failed to disclose the level and landslide high groundwater have purchased that had these would not they dangers, they known of however, establishes, of these The evidence apprised property. these It is dangers buy property. precisely nevertheless determined to Hudsons. ignored dangers which resulted the loss of the Los establishes As to 12th the evidence April meeting, District had been Angeles County recently experiencing Hood Control water control surface problems installing storm drains to repairing off into the These were due to running Big Rock Mesa area. problems informa- high groundwater conveyed the area. The flood control district Engineer’s tion concerning Angeles County Los high Office, meeting. which of a public thereafter notified homeowners ground- purpose necessity lowering was to discuss *14 water level and to solutions to the explore problem. advised
It is not correct that the the homeowners were meeting, to state at that groundwater was for county suddenly disavowing any liability fact, In for any liability had disavowed problems. county consistently at- and had earlier groundwater problems precluded since the mid-1970’s in the fear that any to form districts tempts owner assessment property At the county damages. make liable for might involvement on its part advised that the course county the homeowners were shifted meeting, groundwater and would now to assist the homeowners agree solving problems. resolve some mechanisms to
County engineers suggested possible abatement hazard long-standing groundwater problems, including geologic districts, areas, homeowners. service contributions voluntary mech- The each of these engineers procedure establishing explained bemay anisms and offered the A inference assistance. reasonable county’s drawn favorable to meeting entirely of the implications The that finally steps might homeowners. information established provided be Assuming knowledge taken to resolve a long-standing problem. Mesa, at the Rock disclosure of what occurred problem Big only desirability properties could affect the value and positively meeting Moreover, in the suggested area. the discussions were nonspecific resolutions which could a vote of the owners require majority property at be successful. no decisions were or could be made Importantly, which would affect the meeting Hudsons’ property.
Neither were the factor which negative discussions of costs potential noted, needed a few ranged to be disclosed. As of costs from discussion thousand dollars to The cost figure millions of dollars. most likely $110,000 $1,100 homeowner), to be thought less than (approximately per a substantial hardly amount. Escobáis had much more individually spent than that their own connection with the groundwater problem. Moreover, the Hudsons were on notice virtue of the Merrill and already Byers additional costs to control the Reports, groundwater problem district, would most be likely necessary. costs involved an assessment homeowners, which would be distributed all the among would most proba- bly be less than An any individual area-wide solution would also solutions. Thus, most be probably more effective than individual solutions. the trial court have inferred may that disclosure of the cost estimates properly discussed at the April 12th would have the Hudsons to encouraged proceed with the and did affect the purchase negatively materially not value or desirability of property. if
Finally, information at the even viewed as provided meeting, negative, could not have been instance of every material to the Hudsons. Not nondisclosure is material. Whether the undisclosed matter is of sufficient to affect materiality the value or on the depends desirability Here, facts of the particular case. information would not of such receipt have affected the Hudsons’ decision Knowing buy property. *15 existent, nevertheless they risk were landslide level and high groundwater the groundwater the existence Knowing buy property. determined to incur some might they knew they it can also be presumed problems, Reports Byers Merrill and Both the resolving problem. expense Therefore, is not it expense. incur some would they them informed county that the additionally if had known they assume that reasonable to that certain and organization of an owners recommending the formation organization, of such with the establishment costs were associated the property. not to purchase have then determined would
Disposition denied. Dana sanctions is affirmed. The for request judgment Edmonds, Jr., Real Estate A. her from James appeal is to recover costs Commissioner of the State of California. J.,
Ashby, concurred.
TURNER, P. J. dissent. respectfully I dangers high groundwater there is substantial evidence the
Although Hudsons, several were to the conveyed and the associated risk of landslides relate to which meeting facts are undisputed concerning April be assessment district recommendations that a county engineers’ special the fact that Despite formed and the costs of future pumping. letter, 28,1983, (Vaill) she never received Dana Vaill attended the March 12, 1983, was conducted neighbor. meeting with a April meeting Library, county in the Malibu a representatives Angeles County of Los who were building. Among county government present representatives Biddlecomb, of county was Edwin for the regional engineer department Cid, division engineer region, engineer facilities the Malibu Armando Keene, Art regional offices division of the county engineer department, Mike engineer head for the geologist county engineer department, Ireland, Johnson, district, and Peter with the flood control geologist Dean Dana. The commenced at 7:30 deputy Supervisor meeting p.m. at well to the meeting prior concluded This occurred approximately p.m. 3, 1983, the Hudsons. escrow on the May closing purchased by At Portions and have been transcribed. tape-recorded was presented oral Vaill’s counsel conceded that no evidence argument, which indicates that is inaccurate any respect. the transcription At officials estimated April meeting, exist- securing revitalizing costs associated with expert geological opinions, wells, drains, new ing installing drainage systems, drilling observation *16 264 $25,000 in of upwards measures costs
taking ranged start-up other from about $2 Art Keene was asked million over the term. Head longer Engineer said, that two million dollars $2 and he “I’d like to figure explain the million Keene and Edwin Biddlecomb are valid Both Art because those numbers.” Furthermore, the problem. the was for county responsible indicated that not Cid, of the offices division regional the for the engineer Armando division county the counsel had concluded engineer, county stated county raised a the meeting, the During was not liable for legally problem. money” kind of “all this of concerning consequences spending question remaining money expended. and the after problems officials recommended In the various problem, order to resolve After authority. with taxing district be created that a assessment special table, high-water caused ongoing problem discussion concerning like to call further I’d get any Edwin stated: before we “Okay, Biddlecomb Cid, dis- of these discuss these formation gonna on Armando whose [sic] a method It bemay tricts that be a method of might alleviating problem. for pay area formed to these assessment starting pumps having up that, It didn’t work it contribution basis. having voluntary rather than on a did not the county Cid discussed the fact that because before.” Armando area, it damage future for further undergo potential liability want to district that a assessment county agencies special was the of various opinion as a Hazard Abatement “Geologic be formed. He referred to the district stated, if here line is that “Essentially, people District.” He bottom jhe went whole and it procedure wanted to form a district and it involved the five directors of it would form a district with own board of your through, have city. In with a small little You you up essence would wind people. domain, use the Improve- You could tax eminent could taxing rights. you 11 and this over 10 thing spread ment District Acts of 13 to pay thing line this whole You could do . . . bottom years. anything. [T]he if did not pay that it would wind as of the tax bill. So someone up part bill, property, tax then when would lose eventually years go by, Later, thing this “Usually way whatever . . . .” Armando Cid continued: take, started, is that it it it would take 10% get works would owners, well that owned at least 10% property owners about, owners that talking assessed evaluation of the area that you’re [sic] value, It an initial owned 10% of the said whatever. ... would require 10%, is investment on because of this submittal to us is your part, part of control, what is called a where would have to plan you get this is He to discuss then report prepared by engineering geologist.” proceeded district. assessment procedural aspects setting up a special installing Art Keene continued discussion by noting importance in” he wells which he but was observation termed as “[v]ery cheap put said, Johnson, who geologist control district Mike flood interrupted *17 it was fact that discussed the Armando Cid cheap anymore.” “Nothing’s Keene Art would be. much the assessment determine how difficult to Johnson, the geolo- Mike $2 million. the costs could be indicated that total various wells. the costs of also discussed the flood control district gist with for prepared were two documents meeting, At the of the conclusion “We, entitled, following the was the residents. One document signature by document The other Mesa.” area-Big in service Rock county are favor of district-Big “We, said, abatement in of landslide following the are favor district abatement landslide who are favor of the Rock Mesa for those both documents. signed Vaill to the solution of the approach problem.” where case Unlike typical evidence is uncontradicted. foregoing transpired, of what different versions meeting who attend a offer persons based uncontradicted upon in the at bar to this court presented issue case is I therefore conclude evidence of what was said. actually verifiable with connection Vaill’s failure to the Hudsons of what occurred apprise aof of the establishment future costs and the recommendations county 12,1983, her reaction to meeting assessment district at the special April agent As a real estate meeting negligence.1 the events at the constituted seller, materially facts which Vaill had a to disclose representing duty she for sale of which affected the value or of the offered desirability 860, (1976) Cal.Rptr. 866 (Cooper was aware. v. Jevne 56 Cal.App.3d [128 of the 724].) Merrill Neither the nor Byers report apprised April meeting. at evidence raised
There were several matters uncontradicted supported which, have been meeting brought when considered should together, First, county that the the Hudsons’ attention. should have been informed they in the area. levels disavowing any rising groundwater liability Second, the have was recommend- county Hudsons should been told that a assessment district with and eminent domain ing special taxing powers Third, be instituted. have costs of potential should been notified taken were together assessment district. These three factors special matters which affect the value of the Vaill was materially would as what to sell the Hudsons. Vaill’s lack of concern attempting Finally, at the is further evidence of issues raised transpired meeting negligence. meeting at the For important. official representatives this, her as a real estate not given special responsibility to recognize whether, law, to disclose the events of 1 Iam as matter of the failure unable to determine Therefore, judgment I would affirm the in that “incompetence.” constituted respect. for revoca- specific ground was a negligence. constituted This salesperson, this is extremely tion amended Because appearing first accusation. law, I rare as a matter of would case where demonstrated negligence Vaill’s except therefore affirm the trial court’s all as to finding respects at the negligent April failure to the Hudsons of what occurred apprise I would the case to court with meeting. superior therefore remand directions to issue a mandate directing Department writ of Director of Real Estate to if with impose penalty, any, gravity commensurate findings (Bonham (1955) v. McConnell supported by evidence. *18 502].) Cal.2d P.2d [288