Case Number: EC066676 Hearing Date: October 19, 2018 Dept: NCD

TENTATIVE RULING

Calendar: 4

Case Number: EC 066676

Date: 10/19/18 Trial date: April 15, 2019

Case Name: Chan, et al. v. Southern California Edison Company, et al.

MOTION FOR SUMMARY ADJUDICATION

[CCP § 437c; CRC 3.1350 et seq.]

Moving Party: Defendant Southern California Edison Company

Responding Party: Plaintiffs Edwin Tak-Wing Chan and Wei Chao

Subrogees Interinsurance Exchange of the Automobile Club and

Automobile Insurance Company

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Southern California Edison Company’s Motion for Summary Adjudication on Fourth Cause of Action for Inverse Condemnation is DENIED.

The court cannot, based on all of the evidence submitted and the legal authorities cited, determine as a matter of law that plaintiffs will be unable to establish that the incident occurred pursuant to a taking of property for public use by defendant. [See Supplemental Response to UMF No. 4, and evidence cited; Cantu v. Pacific Gas & Electric Co. (1987) 189 Cal.App.3d 160; Barham v. Southern California Edison Co. (1999) 74 Cal.App.4th 744).

Plaintiffs Edwin Tak-Wing Chan’s and Wei Chao’s Evidentiary Objections in Opposition are OVERRULED. The court does not consider statements made in a separate statement evidence.

Southern California Edison Company’s Objections to Evidence:

Objection No. 25 is SUSTAINED. Remaining objections are OVERRULED.

In light of the sustaining of defendant’s Objection No. 25, above, Plaintiffs’ Interinsurance Exhange of the Automobile Club and California Automobile Insurance Company’s Request for Judicial Notice is DENIED.

Plaintiffs Edwin Tak-Wing Chan’s and Wei Chao’s Supplementary Evidentiary Objections are OVERRULED. The court does not consider statements made in a separate statement evidence.

SCE’s Supplemental Objections are OVERRULED.

Relief Requested:

Order granting summary adjudication as to the fourth cause of action for inverse condemnation of plaintiffs’ complaint

Causes of Action from Complaint

1) Negligence

2) Negligence Per SE

3) Res Ipsa Loquitur Negligence

4) Inverse Condemnation

5) Negligence

SUMMARY OF COMPLAINT:

Plaintiffs Edwin Tak-Wing Chan and Wei Chao allege that they are the owners of a residence in San Marino, and that on July 12, 2016, a residential fire originated on neighboring property where defendants Victor So-Mien Sze and Angela Hsin-Chi Hsu have a residence. Plaintiffs allege that the fire was caused by a failure of electrical service and/or the Service Drop to the neighboring property and originated in the trees and vegetation that lined the north wall of the rear yard of the neighboring property. Plaintiffs allege that heat derived from the Service Drop caused the leaves of the tree to ignite, and embers from this fire spread to three other properties in the neighborhood, including the subject property.

Plaintiffs allege that as a result of the fire, the subject property sustained extensive fire damage to the attic and roof, as well as water damage and smoke damage, and that plaintiffs also suffered loss of or damage to a significant amount of personal property, and emotional distress.

Defendants Sze and Hsu have filed a cross-complaint for indemnity against Southern California Edison, which has in turn filed a cross-complaint for indemnity against Sze and Hsu.

This motion for summary adjudication was originally heard on July 6, 2018. Plaintiffs in opposition had requested a continuance of the hearing pursuant CCP § 437c (h), which was granted, and the motion continued to this date.

ANALYSIS:

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant… has met that burden, the burden shifts to the plaintiff… to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”

CCP § 437c(f) provides that “a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Defendant Southern California Edison Company (“Edison”) moves for an order granting summary adjudication in its favor as to the fourth cause of action for inverse condemnation.

To establish a cause of action for inverse condemnation, plaintiff must allege and prove the following elements:

a. Plaintiff’s ownership

b. Description of property

c. Defendant condemnor’s taking or damaging

d. Nature of injury and substantial damage to a property right or property

e. Plaintiff’s timely presentation of claim for damages

House v. Los Angeles Unified School Dist. (1944) 25 Cal. 2d 384; Landgate v. California Coastal Commission (1944) 25 Cal.2d 384; Witkin § 689.

Article I, section 19 (formerly art. I, § 14) of the California Constitution requires that “just compensation” be paid when “private property” is “taken or damaged for public use.”

Defendant Edison argues that it is entitled to summary adjudication because plaintiff will be unable to establish the essential element that the electrical services provided to the neighboring property via a “service

drop” is not connected with a “public use.” Defendant argues that the overhead service drop at issue is an aluminum triplex overhead service line running from a wooden utility pole to a weather head on the roof of the neighboring property, and that the service drop at issue did not distribute or transmit electricity to anyone other than that single residence. [UMF Nos. 3, 4, and evidence cited].

Defendant relies on Cantu v. Pacific Gas and Electric Company (1987) 189 Cal.App.3d 160, in which the court of appeal reversed the trial court’s judgment finding a public utility liable for inverse condemnation, finding that in that case, the extension of utility service under a contract with a developer of homes in the subdivision constituted a private service without a taking for public use or a benefit to the public at large.

In Cantu, the plaintiffs had constructed a hillside residence, in what was known to be a geographically unstable area. Before any lots in the area were sold, Pacific Gas and Electric installed an 18-inch-wide trench for its gas and electric facilities together with telephone equipment owned by General Telephone Company. During heavy rains several winters later, the hillside collapsed, making plaintiffs’ house uninhabitable, and at trial before the court an expert testified that the PG&E trench was a contributing cause of the landslide.

The court of appeal addressed the issue of whether the installation of the trench line was a public use, noting that, “Whether the installation of the trench line for extension service is a public use is a question of law and, as a reviewing court, we are not bound by the trial court’s determination.” Cantu, at 163.

The court of appeal defined public use as “a use which concerns the whole community or promotes the general interest in its relation to any legitimate object of government.” Cantu, at 164, quoting Bauer v. County of Ventura (1955) 45 Cal.2d 276, 284.

In discussing this issue, the court of appeal noted that utility poles and lines used to transmit distribution of electricity are generally considered devoted to public use.

“The Bauer court concluded that the taking of private property for construction of storm drainage systems is a taking for a public use. (Ibid.; see also Pettis v. General Tel. Co., supra, 66 Cal.2d 503 [maintenance of underground utility lines is a public use]; Slemons v. Southern Cal. Edison Co. (1967) 252 Cal.App.2d 1022 [60 Cal.Rptr. 785] [utility poles and lines are devoted to public use].)

In fact, Civil Code section 1001 provides a private right of eminent domain to acquire an easement to provide utility service defined as “water, gas, electric, drainage, sewer, or telephone service.” This is tantamount to a legislative declaration that such use is a public use. (See Code Civ. Proc., § 1240.010.) Thus, generally speaking, the condemnation of private property to install lines for the transmission and distribution of electricity is a public use, to which inverse liability principles apply. (See Pettis v. General Tel. Co., supra, 66 Cal.2d at p. 507.)”

Cantu, at 164.

The court of appeal then distinguished the circumstances before it as involving a private use, as follows

“The joint trench installed by defendant was designed to furnish electrical service to interruptible customers in the development, including the Cantus. The installation was accomplished pursuant to PG&E rule 15, which provides in pertinent part: “A. General [para. ] The Utility will construct, own, operate and maintain lines only along publicstreets, roads and highways which the utility has the legal right to occupy, and on public lands and private property across which rights of way satisfactory to the utility may be obtained without cost or condemnation by the utility.” (Italics added.)

Pursuant to its own rules, authorized by the Public Utilities Commission ( Pub. Utilities Code, § 761), P G&E will not proceed to condemn private property to furnish line extensions. This is evidence of the uniquely private nature of this service. The trench installed here was designed to fulfill an individual need. This is unlike the construction of permanent transmission towers or power lines (see Pacific Gas & Electric Co. v. Parachini, supra, 29 Cal.App.3d 159; Pacific Gas & Electric Co. v. Hay, supra, 68 Cal.App.3d 905), or telephone poles (see Slemons v. Southern Cal. Edison Co., supra, 252 Cal.App.2d 1022) which are designed to transmit electricity over a much greater area and which would exist even if these particular plaintiffs were [*165] not customers. In this case, the trench was installed specifically to furnish electrical service for plaintiffs and their neighbors.

PG&E did not need prior governmental approval or a declaration of necessity to construct the trench, as is required when the utility seeks to condemn land in eminent domain proceedings. (See Code Civ. Proc., §§ 1240.030, 1240.040; People v. Chevalier, supra, 52 Cal.2d at p. 304; Pacific Gas & Electric Co. v. Hay, supra, 68 Cal.App.3d at pp. 910-911; Pacific Gas & Electric Co. v. Parachini, supra, 29 Cal.App.3d at p. 164.) We view this as further indication that the service provided did not benefit the public at large but was for the private use of the plaintiffs and their neighbors.”

Cantu, at 164-165.

The court of appeal further noted that in that case, there had been no attempt by PG&E to condemn the property, but an easement was granted by the private developer at no cost to PG&E, reasoning that, “In those instances where PB& E seeks to acquire property in eminent domain, it has made an economic business decision to assume liability in the event damage to neighboring property is proximately caused by its improvement.” Cantu, at 165.

Defendant here argues that the telephone facilities at issue here are similarly services provided for a private use. Defendant presents evidence that the subject electrical service drop at issue serves only a single address, the neighboring property address of plaintiffs’ insureds, so that there is no public use or intention to transmit or distribute services to the greater community. [See UMF Nos. 4, 5 and evidence cited; Coolidge Decl., para. 4].

The moving papers also indicate that defendant Edison obtained easement property rights behind the neighboring property through a grant of easement from the grantor, Huntington Land and Improvement Company, for the purpose of allowing Edison to install poles and related equipment for the private use of its customers in the immediate area, and that no eminent domain rights were exercised with respect to the pole and line extension service, and no private property was condemned. [UMF Nos. 6, 7, and evidence cited].

Plaintiffs argue that the subject service drop was connected to Edison’s greater electrical distribution system, through which it provided electrical power to the public, giving rise to a public use in facilitating the transmission of electrical power. Plaintiff’s supplemental evidence in opposition to the motion includes a statement in deposition by Eric Coolidge, the declarant on whom Edison relies for the statement that the service drop was not dedicated to public use, in which he was asked, “Would you feel qualified to testify regarding the distinction between a public or private use with respect to the service drop that’s at issue in this lawsuit?” and responded, “No. I would not be qualified to testify to that.” [Supp. App., Ex. B, Coolidge Depo. pp. 180-181]. This appears to raise an inference concerning the lack of qualification of the witness relied upon to make the assessment relied upon, which appears to give rise to triable issues.

Plaintiffs also have since deposed Edison’s Person Most Qualified, Michael Hughes, who provided testimony explaining the distribution circuit components with respect to the services provided by Edison, who distinguishes only the service drop as not part of that circuit because it feeds only one customer and could be cut in the clear and not affect the circuit as a whole. [Supp. App., Ex. A, Hughes Depo., pp. 166-171]. Plaintiffs

argue that these explanations show that the service drop is part of a larger grid of distribution components which would admittedly qualify as dedicated to a public use, and that the characterization of this component as private because it benefits only one customer does not fit within the Cantu analysis. Plaintiffs point out that the electricity that serves the neighboring property originates from somewhere in the greater electrical grid, not the neighboring property or the service drop, and that Edison dominates in the installation, location, mechanics and maintenance of the service drop, and would not permit its customers to alter the service drop. [Hughes Depo., pp. 52, 123, 173, 179].

Plaintiff argues that Cantu was based on the unique circumstances of a trench being constructed to serve only the limited development, when this case is a more typical instance of liability arising from the installation of a general electrical grid and its servicing parts, which the court in Cantu recognized is dedicated to public use.

The oppositions and supplemental oppositions also rely on Barham v. Southern California Edison Co. (1999) 74 Cal.App.4th 744, in which the court of appeal found that the trial court had erred in entering judgment in favor of an electric company on various property owners’ cause of action for inverse condemnation based on a finding that there had been no taking for public use.

Barham was an action brought by various plaintiffs alleging that a wildfire, commonly known as the Mill Creek fire, resulted from a failure in SCE’s overhead power line equipment. In a bifurcated proceeding, a jury found in favor of property owners damaged by the fire on their causes of action for negligence, nuisance and trespass. The trial court ultimately amended the judgment nunc pro tunc to reflect judgment in favor of SCE on the cause of action for inverse condemnation.

The court of appeal in that matter in addressing the question of whether the property owners’ property had been damaged for a “public use,” first set forth the standard of review:

“Whether a use is public or private is a question of law. (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 369-370 [27 Cal.Rptr.2d 613, 867 P.2d 724].) Therefore, we independently review the decision of the trial court. (San Diego Gas & Electric Co. v. City of Carlsbad (1998) 64 Cal.App.4th 785, 792 [75 Cal.Rptr.2d 534].)”

Barham, at 752.

The court of appeal then rejected arguments that SCE was a privately owned public utility and so not subject to inverse condemnation. The court of appeal then addressed the issue of public use:

“In addressing the concept of public use, the parties have commingled the analysis of which entities may be liable and which uses may be public. They have focused on the issue of whether SCE could have exercised eminent domain over the land on which its electrical transmission facilities were located. Their arguments concern SCE’s ownership of the land (SCE claims the construction of electrical transmission facilities on its own land creates a *754 private as opposed to a public use), and whether a franchise from San Bernardino County to SCE establishes a joint enterprise (the Barhams argue it does and based upon that joint action, a public use exists). As stated above, the joint action concept is foreign to our analysis. Further, these assertions miss the point entirely. The question does not concern the land upon which the electrical transmission facilities were located. Rather, the issue is whether the Barhams’ property was taken for a public use, i.e., the transmission of electric power to the public. The evidence

reflects the circuit, of which the subject pole and transmission wires were a part, provides electric service to more than 1,000 households. Based upon the above cited authority, we must conclude that the transmission of electric power through the facilities that caused damage to the Barhams’ property was for the benefit of the public. (See, e.g., Slemons v. Southern Cal. Edison Co., supra, 252 Cal.App.2d at p. 1026 [electric transmission lines to three customers was a public use].) Thus, the Barhams’ property was “taken or damaged” for a public use.

Barham, at 753-754.

The court of appeal in Barham distinguished the case before it from the Cantu case, reasoning:

“This case differs from Cantu v. Pacific Gas & Electric Co. (1987) 189 Cal.App.3d 160 [234 Cal.Rptr. 365], which held inverse condemnation did not apply, and which was heavily relied upon by the parties and the trial court. As did the parties in this case, the court in Cantu focused its analysis on the means by which the public utility obtained the land upon which its facilities were located and not, as SCE urged at oral argument, on the private corporate status of the utility. The facilities at issue in Cantu were found to have been designed to fulfill an individual need. The court concluded the use was “unlike the construction of permanent transmission towers or power lines … which are designed to transmit electricity over a much greater area ….” (Id. at p. 164.) Those are precisely the type of facilities with which we are concerned in the present case. The Cantu court based its decision upon a public policy conclusion that under the specific facts of that case, when the running of line extensions to plaintiffs’ residence is what caused plaintiffs’ damage, it would be unfair to spread the cost to the public at large through inverse liability. (Id. at p. 165.) It also concluded since the utility had not exercised eminent domain to obtain the land, it had not “made an economic business decision” to assume liability if its facilities caused damage to neighboring property. (Ibid.) Therefore, the public policy basis for the court’s decision was not overcome by principles of eminent domain. As previously illustrated, the facts of our case involve a much greater service to the public at large. Cantu does not alter our decision.

Barham, at 754.

Plaintiffs here also argue that the provision of electricity through the distribution circuit acknowledged by defendant’s witnesses involves the public use of the transmission of electricity to the public, and that permitting Edison to isolate the service drop devices, which they fully control and maintain for the purposes of transmitting electrical services, would defeat the recognized purposes of the imminent domain remedy.

Plaintiffs urge here that the court should not find as a matter of law at this juncture that the imminent domain cause of action is barred, despite its overlap with other causes of action, as plaintiffs are entitled to pursue the claim in the alternative until, and if, an election of remedies is necessary. (The Barham case suggests that a judgment in favor of the property owners on the imminent domain cause of action would provide distinct remedies from, for example, the negligence claim, due to the availability of prejudgment interest, and other remedies, such as attorneys’ fees and appraisal and engineering costs as permitted under CCP § 1036. See Barham, at 751, and note 12).

It does not appear that the court should on this showing determine that the incident does not involve a component dedicated to a public use as a matter of law, given the self-serving characterization of the service drop, when the evidence suggests it is a part of the greater grid, so the evidence does not now give rise to the exceptional circumstance where electrical facilities should be treated as private, rather than public.