Case Number: BC531258 Hearing Date: June 16, 2016 Dept: SEC

CAVILLO v. SOUTHERN CALIFORNIA EDISON
CASE NO.: BC531258
HEARING: 06/16/16

#2
TENTATIVE ORDER

Defendant SOUTHERN CALIFORNIA EDISON’s motion for summary judgment is GRANTED. C.C.P. §437c.

Rodolfo Camacho was fatally injured while attempting to retrieve a canopy that blew away and was lodged in a power line. His heir, plaintiff HAVID CAVILLO asserts a sole cause of action for wrongful death (negligence). Defendant BRAVO SPORTS allegedly designed and marketed the canopy. SAC, ¶8. Bravo and plaintiff separately oppose the motion for summary judgment.

Defendant SCE seeks summary judgment on the grounds that it has not breached its duty of care and, alternatively, that decedent’s injuries were the result of a superceding cause. Brewer v. Teano (1995) 40 Cal.App.4th 1024.

Plaintiff argues that defendant failed to meet its initial burden. C.C.P. § 437c(p)(2). Plaintiff’s argument on that point is somewhat misplaced. A party seeking summary judgment may meet his initial burden by establishing that one or more elements of the cause of action cannot be satisfied. See C.C.P. § 437c(p)(2). Where a defendant relies on the absence of evidence, such as when factually-devoid discovery responses are submitted pursuant to Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, the moving defendant must also show that the opposing plaintiff cannot reasonably obtain supportive evidence. See, e.g. Gaggero v. Yura (2003) 108 Cal.App.4th 884; Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220.

Defendant proffered plaintiff’s responses to special interrogatories, which do not reveal, with any factual support, the particular breach alleged to have been committed. Motion, Exh. 11. The response indicates that defendant failed to properly “inspect and maintain its electrical lines, including but not limited to failing to properly maintain sag, clearance and vegetation trimming” and failing to “properly warn of the dangers of electricity, high voltage transmission lines.” Id.

Defendant did not rely solely on that response or argue that plaintiff lacks evidence to support breach in order to shift the burden. Instead, defendant contends that it complied with the CPUC regulations regarding overhead line construction and specifically, General Order 95. See Decl. of Terrance Bynum, Lawrence Paul Cook, Samuel Stonerock. Defendant’s agents testified that the subject power lines were placed in accordance with the regulations and that the lines were otherwise constructed and maintained within the good practices of the industry. That evidence is sufficient to shift the burden. See Krongos v. Pacific Gas & Electric Co.91992) 7 Cal.App.4th 387.

In opposition, plaintiff correctly argues that compliance with General Order 95 does not establish, as a matter of law, that defendant complied with the standard of care. Compliance has been deemed insufficient where the factual circumstances required defendant to do something more in its exercise of due care. See Mata v. Pacific Gas & Electric Co. (2014) 224 Cal.App.4th 309; Amos v. Alpha Prop. Mgmt (1999) 73 Cal.App.4th 895. In opposition, plaintiff had the opportunity to present evidence supporting his theory of breach. Plaintiff did not proffer any such evidence, nor did he identify what additional duties (aside from those codified by the CUP) the law may have imposed on SCE, in light of the circumstances surrounding the accident. Plaintiff has not presented evidence to create a triable issue of material fact on the element of breach.

Defendant Bravo opposes the motion on different grounds. First, it objects to SCE’s evidence regarding its compliance with the General Order 95 and argues that its inadmissibility prevents defendant from shifting the burden. Defendant Bravo objects to the declaration of Lawrence Cook, which was submitted to establish compliance with the Order. Mr. Cook does not state that the measurements of the clearances were done under the conditions set forth in Rule 37 of the General Order—that the evidence was gathered at environmental conditions of 60 degrees F and no wind. While that is true, it does not follow that his declaration lacks any evidentiary value.

In its reply, defendant noted that the subject electrical line exceeded the regulatory clearance requirement by over 12 feet from the subject conductor to the ground and by 9 feet from the primary conductor to the garage structure. It is unreasonable to conclude that if the environmental conditions varied from those in Rule 37, the variation would have created a drop in height by 9-12 feet. Defendant’s objections to the Cook declaration are overruled, as the Court finds, absent any evidence to the contrary, the clearance measurements demonstrate SCE’s compliance with the General Order as it pertains to the subject power lines.

Defendant Bravo also argues, like plaintiff, that the scope of defendant’s duty may vary according to the facts of the case. The burden is on the parties opposing summary judgment to establish the existence of a duty beyond the scope of the General Order and to proffer evidence creating a triable issue of fact with respect to breach.

Neither party submitted any evidence to contradict defendant SCE’s showing that it complied with the General Order or any other evidence demonstrating breach. Therefore, the Court finds SCE has established entitlement to judgment as a matter of law. The motion for summary judgment is granted.

The Court need not reach the second ground for the summary judgment motion (superceding cause) and declines to do so.