2016-00197454-CU-PO

Sacramento Municipal Utility District vs. Cecelia Victoria Vangerwen

Nature of Proceeding: Motion for Summary Adjudication – Civil Law and Motion –

Filed By:

** If any party requests oral argument, then at the time the request is made, the

requesting party shall inform the court and opposing counsel of the specific issue(s) on which oral argument is sought. **

Plaintiff Sacramento Municipal Utility District’s (SMUD) motion for summary adjudication of issues is GRANTED.

Defendant Cecelia V. Vangerwen aka Cecelia V. Van Gerwen’s (Vangerwen) request for judicial notice of two SMUD press releases is DENIED as unnecessary because Vangerwen authenticated the same press releases by way of her counsel’s declaration.

The court disregards Vangerwen’s evidentiary objections submitted in the supplemental points and authorities (the “sur-reply”). Written objections must be submitted in a separate document and in the format prescribed in CRC 3.1354(b).

In the complaint, SMUD alleges Vangerwen struck a SMUD power pole and caused SMUD to incur costs totaling $74,903.21. The complaint contains several causes of action, including causes of action for negligence and trespass. SMUD now moves for summary adjudication of these two causes of action. Vangerwen opposes.

Preliminarily, the court notes that SMUD filed evidence for the first time with its reply. Specifically, SMUD filed portions of Vangerwen’s deposition transcript along with an authenticating declaration of counsel. Although SMUD filed the same portion of the transcript with the moving papers, Vangerwen objected that the transcript was not properly authenticated and lacked a reporter’s signed certificate. SMUD then re-filed the transcript with a different declaration and a signed certificate. The court continued the hearing so that Vangerwen could respond to the new evidence in a sur-reply. The court has received Vangerwen’s sur-reply and, given the absence of prejudice, considers the evidence submitted with SMUD’s reply.

The court also notes Vengerwen’s assertion that outstanding discovery might disclose a triable issue of material fact. Because there is no accompanying request for a continuance pursuant to CCP § 437c(h), Vangerwen’s reference to outstanding discovery does not impact the analysis. (Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1224 [failure to request a continuance to conduct additional discovery on summary judgment waives the issue].) The materials submitted do not warrant a discretionary continuance so that Vangerwen can undertake or complete further discovery before the court rules on the motion. The court thus turns to the merits.

With its moving and reply papers, SMUD has produced evidence that Vangerwen

caused her vehicle to strike SMUD’s utility pole when she looked down to change
music on her phone. (See Undisputed Material Facts 2-8.) To establish damages,
SMUD has attached the declaration of Stephanie Lemmond (Lemmond), who is a
Customer Services Representative in SMUD’s Revenue Collection Division. Exhibit A
to the Lemmond Declaration is SMUD’s calculation of damages in the amount of

$74,903.21. Exhibit A contains a SMUD invoice issued to Vangerwen for this amount.
The invoice enumerates (1) labor costs associated with repairs SMUD employees
performed, (2) costs associated with SMUD’s use of its own supplies (minus salvage
value), and (3) amounts outside contractors billed SMUD for their services.

Vangerwen argues damage presents a triable issue because SMUD failed to account

for depreciation. Depreciation, however, is not a component of SMUD’s damage. (See Pub. Util. Code § 7952; Pacific Gas & Elec. v. Alexander (App. 3 Dist. 1979) 90 Cal.App.3d 253, 255-256.)

The parties also dispute whether SMUD was required to produce evidence of the reasonableness of its damages. The court need not resolve the dispute because SMUD’s evidence demonstrates its damages are reasonable. (See, e.g., People v. Southern Cal. Edison Co. [Edison] (1976) 56 Cal.App.3d 593, 606.)

Next, Vangerwen objects that SMUD’s damage calculations and underlying documentation are inadmissible. Among other things, she objects that the evidence is hearsay and lacks foundation. These and Vangerwen’s other objections to SMUD’s damages evidence are overruled.

Edison, supra, is instructive. In that case, the State of California sought to recover fire-suppression expenses. At trial, the State produced an experienced state forester with no personal knowledge about the fire suppression efforts in question. (Edison, p. 605.) The forester testified that the State’s calculation of expenses was based on “cards which were maintained by members of the fire crew on various vehicles and subpurchase orders used to pay for various services or materials and other documents listing goods of services used in fighting the fire.” (Id.) The Court of Appeal affirmed the trial court’s determination that the testimony provided sufficient foundation to admit the calculation as a business record. (Id., pp. 605-606.)

Here, the Lemmond Declaration establishes that the “books and records regarding damage to SMUD property are maintained by employees who create written reports of damage containing information generated at the time or event or occurrence described in the report.” (Lemon Decl., ¶ 4.) Attached to SMUD’s total calculation are detailed reports of the repair-hours worked, the workers involved, and the materials used. Following Edison, SMUD’s damages calculations are admissible under the business records exception. Because SMUD has produced admissible evidence of damages and the other elements of its negligence and trespass causes of action, the burden shifted to Vangerwen to produce evidence demonstrating the existence of a triable issue.

As noted above, Vangerwen tenders two 2017 SMUD press releases. One press release indicates that, as of 2017, SMUD intended to replace about 1,000 utility poles within the year and another 3,000 poles “over the next several years.” The second press release discusses utility poles that have been struck and damaged more than once. Based on this evidence, Vangerwen speculates that the pole she struck might have been slated for replacement anyway. And she argues the pole she struck might have been damaged previously and, therefore, of diminished value before SMUD replaced it. Because Vangerwen’s evidence only supports speculative arguments, it does not demonstrate the existence of a triable issue. (See Carlsen v. Koivumaki (App. 3 Dist. 2014) 227 Cal.App.4th 879, 892.)

Vangerwen’s objections to SMUD’s damages evidence are overruled. The court need not rule and does not rule on the balance of Vangerwen’s properly submitted objections. (See CCP § 437c(q).) The court has not considered SMUD’s complaint or the traffic collision report of the incident for any asserted evidentiary value.

The motion is granted.

Pursuant to CRC 3.1312, SMUD shall lodge a formal order for the court’s signature.