Fraudulent Concealment
- - -
"fraudulent concealment:
Definition
Deliberate hiding, non-disclosure, or suppression of a material fact or circumstance (which one is legally or morally bound to reveal) with intent to deceive or defraud in a contractual arrangement. See also suppression of evidence."
- - -
Lemme see here...
Deliberate hiding of a material fact? Check.
That one is legally or morally bound to reveal? Check.
With intent to deceive or defraud? Check.
Uhhhh-ohhhhhh!
2004 Los Osos CSD? Montgomery, Watson, Harza? I've got some very, very bad news for you... I'm gooooooood.
"Fraudulent concealment?"
No problemo (after all, this IS SewerWatch).
Ready?
First, we'll need this:
That's a screen shot from a 2005 LOCSD document that I (exclusively, of course) dug up back in 2005.
It's from something called a "value engineering" report, and what it shows is that the park amenities in the Tri-W sewer plant were estimated at over $2.3 million.
That's very important -- an official LOCSD document estimating the park amenities at over $2.3 million.
Next, we'll need this:
"... the (LOCSD) Board on June 17, 2004 agreed to add the picnic area, tot lot, amphitheater, and community garden (to the Tri-W sewer plant)..."
That's a quote from a LOCSD document titled, June 28, 2004 Response to CCC. (The quote shows up on page "111 of 113.")
What that quote shows is that the 2004 LOCSD Board "agreed to add" the amenities, which, shortly thereafter, the District's engineers, MWH, estimated at $2.3 million.
Additionally, the "November 2000" site plan for the Tri-W sewer plant shows (among other amenities) "picnic area, tot lot, amphitheater, and community garden."
Here's the 2000 site plan, developed by the Los Osos CSD and MWH:
Next, we'll need this:
MWH Memo comparing costs of TriW with Andre
What that is, is a pdf file that I created back in 2005, and it contains an LOCSD "memo" that I first dug out of June 28, 2004 Response to CCC. The "memo" was created by MWH in 2004. (The document -- also called "Exhibit 3-C" -- appears after my story in that pdf file. Hey, I created the pdf, so it's "me first," of course.)
That document is vital to this case, because it shows that MWH in 2004, at the request of the California Coastal Commission, created a "hypothetical" sewer project for the District to answer the Commission's question on why the project couldn't be moved out of town.
That "hypothetical" sewer project consisted of a gravity collection system, with a treatment facility east of town, located "adjacent to the cemetery," with a small "pump station" at the Tri-W site, or, in other words, nearly identical to what the county just spent almost four years and $7 million approving.
I repeat: The LOCSD's "hypothetical" sewer project from 2004, was nearly identical to what SLO County Supervisors just approved... in 2009.
Exhibit 3-C concludes that there was no "economic incentive" in 2004 to do what the county just approved a week ago... after four years and $7 million worth of analysis.
Now, here's the "fraudulent concealment" kicker:
In the cost estimates for the "hypothetical" sewer project, MWH failed to include almost all of the estimated $2.3 million in amenities. Additionally, the 20-year cost for operation and maintenance of those amenities, estimated at another $3 million, is nowhere to be found in Exhibit 3-C.
So, to cut up the fraudulent concealment meat, and spoon-feed it to regulators, and the local media (heeerrrre comes the aiirrrrplaaaane... into the hannngaaarrr... open wiiii-iiiide...):
In the EXACT same document -- June 28, 2004 Response to CCC -- where the 2004 LOCSD writes, "... the Board on June 17, 2004 agreed to add the picnic area, tot lot, amphitheater, and community garden (to the Tri-W sewer plant)," they failed to include the cost of those amenities in their Exhibit 3-C study, and, if they had, it would have changed the entire conclusion of that study, to where there WAS "economic incentive" to do almost exactly what SLO County Supervisors just approved.
In June 28, 2004 Response to CCC, MWH and the 2004 LOCSD deliberately hid over $5 million (at least!) in amenity and O&M costs in their cost estimates -- which they were legally AND morally bound to reveal -- with the intent to deceive the California Coastal Commission into approving the Tri-W project, and it worked!
To make matters worse, even with the ONE amenity that they did account for -- the dog park -- MWH grossly low-balls the cost of that amenity.
In Exhibit 3-C, where low-balled numbers for the mid-town Tri-W sewer plant benefited that "project," the dog park is estimated at "$60,000," however, just a few months later, in their "value engineering" report, MWH, and the Los Osos CSD, estimated that exact same dog park at "$690,000," more than a factor (factor!) of 11 from their previous estimate.
Which means, if MWH was SO wrong on that number, how many other numbers were they wrong on (by factors of) in that study? (An independent analysis of those numbers today, would REALLY help answer that question.)
Bottom line?
Not only did the 2004 Los Osos CSD and MWH fraudulently conceal the cost of the park (that the 2000 LOCSD Board originally included in the project, and that the 2004 LOCSD Board "agreed to add" to the project... in the exact same document that includes their "hypothetical" sewer project), but the ONE amenity that they did include in the comparison -- the dog park -- was ALSO a case of fraudulent concealment, because they deliberately (and grossly, I will add) hid the real cost of that amenity... by a factor of 11.5!
And had the Los Osos CSD and MWH not done all of that fraudulent concealment in 2004, it would have changed the conclusion of MWH Memo comparing costs of TriW with Andre to what the county just approved... in 2009... after almost four years and $7 million worth of analysis.
Oh, and one last thing -- fraudulent concealment "tolls" the statute of limitations.
###
"fraudulent concealment:
Definition
Deliberate hiding, non-disclosure, or suppression of a material fact or circumstance (which one is legally or morally bound to reveal) with intent to deceive or defraud in a contractual arrangement. See also suppression of evidence."
- - -
Lemme see here...
Deliberate hiding of a material fact? Check.
That one is legally or morally bound to reveal? Check.
With intent to deceive or defraud? Check.
Uhhhh-ohhhhhh!
2004 Los Osos CSD? Montgomery, Watson, Harza? I've got some very, very bad news for you... I'm gooooooood.
"Fraudulent concealment?"
No problemo (after all, this IS SewerWatch).
Ready?
First, we'll need this:
That's a screen shot from a 2005 LOCSD document that I (exclusively, of course) dug up back in 2005.
It's from something called a "value engineering" report, and what it shows is that the park amenities in the Tri-W sewer plant were estimated at over $2.3 million.
That's very important -- an official LOCSD document estimating the park amenities at over $2.3 million.
Next, we'll need this:
"... the (LOCSD) Board on June 17, 2004 agreed to add the picnic area, tot lot, amphitheater, and community garden (to the Tri-W sewer plant)..."
That's a quote from a LOCSD document titled, June 28, 2004 Response to CCC. (The quote shows up on page "111 of 113.")
What that quote shows is that the 2004 LOCSD Board "agreed to add" the amenities, which, shortly thereafter, the District's engineers, MWH, estimated at $2.3 million.
Additionally, the "November 2000" site plan for the Tri-W sewer plant shows (among other amenities) "picnic area, tot lot, amphitheater, and community garden."
Here's the 2000 site plan, developed by the Los Osos CSD and MWH:
Next, we'll need this:
MWH Memo comparing costs of TriW with Andre
What that is, is a pdf file that I created back in 2005, and it contains an LOCSD "memo" that I first dug out of June 28, 2004 Response to CCC. The "memo" was created by MWH in 2004. (The document -- also called "Exhibit 3-C" -- appears after my story in that pdf file. Hey, I created the pdf, so it's "me first," of course.)
That document is vital to this case, because it shows that MWH in 2004, at the request of the California Coastal Commission, created a "hypothetical" sewer project for the District to answer the Commission's question on why the project couldn't be moved out of town.
That "hypothetical" sewer project consisted of a gravity collection system, with a treatment facility east of town, located "adjacent to the cemetery," with a small "pump station" at the Tri-W site, or, in other words, nearly identical to what the county just spent almost four years and $7 million approving.
I repeat: The LOCSD's "hypothetical" sewer project from 2004, was nearly identical to what SLO County Supervisors just approved... in 2009.
Exhibit 3-C concludes that there was no "economic incentive" in 2004 to do what the county just approved a week ago... after four years and $7 million worth of analysis.
Now, here's the "fraudulent concealment" kicker:
In the cost estimates for the "hypothetical" sewer project, MWH failed to include almost all of the estimated $2.3 million in amenities. Additionally, the 20-year cost for operation and maintenance of those amenities, estimated at another $3 million, is nowhere to be found in Exhibit 3-C.
So, to cut up the fraudulent concealment meat, and spoon-feed it to regulators, and the local media (heeerrrre comes the aiirrrrplaaaane... into the hannngaaarrr... open wiiii-iiiide...):
In the EXACT same document -- June 28, 2004 Response to CCC -- where the 2004 LOCSD writes, "... the Board on June 17, 2004 agreed to add the picnic area, tot lot, amphitheater, and community garden (to the Tri-W sewer plant)," they failed to include the cost of those amenities in their Exhibit 3-C study, and, if they had, it would have changed the entire conclusion of that study, to where there WAS "economic incentive" to do almost exactly what SLO County Supervisors just approved.
In June 28, 2004 Response to CCC, MWH and the 2004 LOCSD deliberately hid over $5 million (at least!) in amenity and O&M costs in their cost estimates -- which they were legally AND morally bound to reveal -- with the intent to deceive the California Coastal Commission into approving the Tri-W project, and it worked!
To make matters worse, even with the ONE amenity that they did account for -- the dog park -- MWH grossly low-balls the cost of that amenity.
In Exhibit 3-C, where low-balled numbers for the mid-town Tri-W sewer plant benefited that "project," the dog park is estimated at "$60,000," however, just a few months later, in their "value engineering" report, MWH, and the Los Osos CSD, estimated that exact same dog park at "$690,000," more than a factor (factor!) of 11 from their previous estimate.
Which means, if MWH was SO wrong on that number, how many other numbers were they wrong on (by factors of) in that study? (An independent analysis of those numbers today, would REALLY help answer that question.)
Bottom line?
Not only did the 2004 Los Osos CSD and MWH fraudulently conceal the cost of the park (that the 2000 LOCSD Board originally included in the project, and that the 2004 LOCSD Board "agreed to add" to the project... in the exact same document that includes their "hypothetical" sewer project), but the ONE amenity that they did include in the comparison -- the dog park -- was ALSO a case of fraudulent concealment, because they deliberately (and grossly, I will add) hid the real cost of that amenity... by a factor of 11.5!
And had the Los Osos CSD and MWH not done all of that fraudulent concealment in 2004, it would have changed the conclusion of MWH Memo comparing costs of TriW with Andre to what the county just approved... in 2009... after almost four years and $7 million worth of analysis.
Oh, and one last thing -- fraudulent concealment "tolls" the statute of limitations.
###
posted by Ron at
12:39 PM
3 Comments:
I wonder if SLO County Counsel will declare those documents "opinions," especially the $60 thou vs 690thou$?? and the missing costs were, uh, mere oversights? And if you present all this to Supervervisor Gibson and the BOS and demand he look into the matter vis a vis MWH being shortlisted on the present project , maybe he'll loudly tell you at the BOS meeting to shut up and go away and stop saying mean things about WMH?
By
Churadogs, at 6:09 AM, October 05, 2009
On the otherhand, certain courts have elevated a plaintiff’s right to seek recov-ery in court over a defendant’s right to raise a statute-of-limitationsdefense and have interpreted tolling exceptions liberally to achievethat end.13 Regardless of a court’s philosophical approach, courtsare more likely to take the latter, more liberal approach, where a fiduciary defendant is involved.
Oh dear!
By
Watershed Mark, at 7:57 AM, October 05, 2009
THEFT BY DECEPTION:
• “FRAUDULENT CONCEALMENT… The hiding or suppression of a material fact or circumstance which the party is legally or morally bound to disclose…”.
• “The test of whether failure to disclose material facts constitutes fraud is the existence of a duty, legal or equitable, arising from the relation of the parties: failure to disclose a material fact with intent to mislead or defraud under such circumstances being equivalent to an actual ‘fraudulent concealment’…”.
• To suspend running of limitations, it means the employment of artifice, planned to prevent inquiry or escape investigation and mislead or hinder acquirement of information disclosing a right of action, and acts relied on must be of an affirmative character and fraudulent…”.
Source: Black, Henry Campbell, M.A., 'Black’s Law Dictionary’, Revised 4th Edition, St Paul: West Publishing Company, 1968, s.v. ‘Fraudulent Concealment’.
By
Watershed Mark, at 10:50 PM, October 18, 2009
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