Case Number: BC661551 Hearing Date: January 17, 2018 Dept: 97

31

angel novelo,

Plaintiff,

v.

southern california edison, et al.,

Defendants.

Case No.: BC661551

Hearing Date: January 17, 2018

[TENTATIVE] order RE:

motion to strike portions of plaintiff’s amended complaint

BACKGROUND

In this action, Plaintiff Angel Novelo (“Plaintiff”) alleges that on May 23, 2016, he received a high voltage electrical shock when he touched a junction box while installing cable TV, in the scope of his employment. The complaint was filed on May 17, 2017. The First Amended Complaint (“FAC”), filed October 3, 2017, alleges causes of action for: (1) negligence; (2) res ipsa loquitur negligence; (3) negligence per se; (4) strict liability; and (5) violation of PUC Code §2106.

Defendant Southern California Edison Company (“Edison”) moves to strike allegations for punitive damages from the FAC. Plaintiff opposes.

DISCUSSION

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike either (1) any “irrelevant, false or improper matter inserted in any pleading”; or (2) any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP §436.)

Edison moves to strike the portions of the FAC alleging punitive damages, on the grounds that Plaintiff fails to allege facts showing requisite specificity for “willful” conduct.

Public Utility Code § 2106 states, in part, that “[a]ny public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, any law of this State, or any order or decision of the commission, shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom. If the court finds that the act or omission was wilful, it may, in addition to the actual damages, award exemplary damages.” (Emphasis added.) “Willful conduct” refers generally to intentional conduct undertaken with knowledge or consciousness of its probable results; it does not require a purpose or specific intent to bring about a result, but it does require more than negligence or accidental conduct. (Patarak v. Williams (2001) 91 Cal.App.4th 826, 829.)

In the fifth cause of action, Plaintiff alleges that he is informed and believed that the electrified junction box that electrocuted him was installed by Edison in 1971 at the same time that it installed the pad mount transformer. (FAC, ¶33.) Plaintiff alleges that General Order 128 (id., ¶23) requires that such systems be maintained and inspected thoroughly and frequently to ensure good work conditions, as well as to ensure proper signage on the box. (Id., ¶33.) Plaintiff alleges, upon information and belief, that Edison, as a part of its cost savings policies, intentionally and with knowledge and consciousness of the probable consequences, failed in 1971 to properly construct, and thereafter inspect and maintain the subject box. (Id., ¶35.)

The Court finds that the allegations are sufficient to allege punitive damages against Edison. Plaintiff has alleged that Edison was responsible for maintaining the junction box at issue, and that Edison left the junction box in a hazardous condition in contravention to existing laws and regulations (as well as General Order 128) by failing to maintain and inspect the box(es). Plaintiff alleges that the subject box was also painted over and Edison had failed to observe this and failed to correct the condition prior to Plaintiff’s injury. (FAC, ¶37.) Plaintiff also alleges these acts were done willfully because Edison intentionally implemented a cost-savings policy such that it would not inspect or maintain the boxes, with knowledge and consciousness of the probable consequences that failure to do so would not ensure the safety of workmen and the public in general. (FAC, ¶35.)

The Court finds that these allegations are sufficient to allege exemplary damages under PUC §2106 against Edison. As discussed in the previous order for the motion to strike portions of the complaint, which the Court heard on September 18, 2017, section 2106 permits a penalty upon a showing of willfulness, and this showing need not reach the higher burden of alleging oppression, fraud, or malice as described in Civil Code §3294. Furthermore, although Plaintiff alleges facts in the FAC upon information and belief, the Court finds that these matters are likely not in Plaintiff’s knowledge, but assumes that Edison possesses knowledge of these facts at least equal, if not superior, to that possessed by Plaintiff. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158-59; Burks v. Poppy Const. Co. (1962) 57 Cal. 2d 463, 474.)

CONCLUSION AND ORDER

For the reasons stated above, Edison’s motion to strike is denied.

Edison is ordered to provide notice of this order.