Judge Christian R. Gullon, Case Number: 23PSCV00303, Date: 2023-10-30 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00303, Date: 2023-10-30 Tentative Ruling

Defendant, Cascade Drilling, L.P’S (“Cascade”) DEMURRER to Plaintiff Edison’s SAC is OVERRULED in its entirety, notably as Cascade argues for the application of an improper pleading standard (i.e., heightened pleading is not required) and is attempting to make factual determinations on a demurrer.

This is a negligence action. Plaintiff Edison alleges the following against Defendants Cascade, STEARNS, CONRAD AND SCHMIDT, CONSULTING ENGINEERS, INC. (the “Engineers”); UTILIQUEST, LLC (“Utiliquest”): In the performance of excavation work at or near Plaintiff’s electric facilities, Defendants were negligent and caused damage to Plaintiff’s electric facilities.

On January 31, 2023, SCE filed its complaint asserting the following causes of action (COAs):

On February 28, 2023, the Engineers filed its answer and a cross-complaint against Cascade and Utiliquest.

On March 9, 2023, Utiliquest filed its answer as to Plaintiff’s complaint and filed a cross-complaint against Cascade and the Engineers.

On June 1, 2023, Cascade a demurrer, which the court sustained with leave to amend on 7/17/23.

On August 16, 2023, Plaintiff filed its FAC, realleging the same COAs against the same Defendants.

On October 30, 2023, the court sustained Cascade’s demurrer to the FAC with leave to amend.

On November 39, 2023, Plaintiff filed its SAC realleging the same 6 COAs against the same Defendants.

On January 12, 2024, Plaintiff filed its opposition to Cascade’s demurrer to the SAC.

On the previous rulings the court sustained Cascade’s demurrer because the original complaint and FAC improperly lumped allegations against the Defendants creating ambiguiety as to what Defendant did what. Cascade again maintains that Edison fails to cure this problem. (Demurrer p. 7:22-24.) Not so.

Here, whereas the FAC made minimal reference to the Underground Service Alert ticket (“ticket”) (4 allegations to be exact), the SAC largely focuses on the ticket and how Cascade’s alleged failure to maintain an active ticket caused Plaintiff’s damages. Moreover, whereas the FAC did not delineate the roles of the Defendants, the SAC clarifies that the “Engineers retained CASCADE to perform underground excavation/drilling work at or near the EDISON SUBSURFACE FACILITIES.” (SAC ¶13.) Overall, despite Cascade’s contention that Edison “refused to amend its complaint” (Demurrer p. 5:27-28), the SAC is different than the FAC.

Thus, as the SAC is now in conformity with certain pleading standards, the court will turn to the demurrer.

As the allegations comprising each COA are nearly identical and as are the respective arguments raised in demurrer as to each COA, rather than address each COA ad seriatim, the court will provide a consolidated analysis for all 4 COAs.

Defendant, CASCADE, was augering with mechanized equipment for remediation injections . . . CASCADE owed a duty . . . to obtain and maintain active [tickets] prior to commencement of any excavation so that Plaintiff could field mark the approximate location of its subsurface facilities in order to prevent damage to its subsurface facilities . . . CASCADE breached their duty of reasonable care to Plaintiff when they proceeded to perform excavation work at or near the EDISON SUBSURFACE FACILITIES after their Underground Service Alert ticket had expired, in clear violation of California Government Code Section 4216, et seq . . . As a direct result of the negligent, careless and reckless breach of duty owed to Plaintiff by Defendants CASCADE . . . the EDISON SUBSURFACE FACILITIES were damaged and Defendants CASCADE, and DOES 1 through 25, and each of them, are therefore liable to Plaintiff for the cost of repairing the same pursuant to Public Utilities Code §7952. (Complaint pp. 4-5.)

Defendant Cascade main grounds for is that Plaintiff must allege sufficient facts to establish proximate causation because proximate cause is required to establish liability as per the above authority. (Demurrer p. 7.) That is not accurate.[1] As noted in the court’s 10/30/23 tentative, negligence may be pleaded in general terms.

To the extent that Cascade attempts to argue that an expired ticket did not cause Plaintiff’s damages, that exceeds the scope of a demurrer, which treats all allegations in a complaint as true. (See Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998; Thompson v. loane (2017) 11 Cal.App.5th 1180, 1190.)

To the extent that Cascade argues that Edison knew the ticket expired (Demurrer p. 6:19-21), Cascade is making an argument outside the four corners of the complaint, which is improper on a demurrer.[2]

To the extent that Cascade is seeking that Plaintiff provide “full and complete” facts (Reply p. 3:12-13), that is unnecessary.[3] A plaintiff need not provide all facts (even if critical) at the pleading stage so long as the ultimate facts are pled to support each COA.[4] Whether Plaintiff made a mistake (failed to place marks or place them properly); whether other parties made a mistake (failed to place marks or place them properly); or whether Cascade made a mistake (failed to properly follow the existing marks, if any) are all evidentiary findings to be determined at a stage other than a demurrer.

With sufficient facts provided in the SAC to support each COA, the entirety of the demurrer is overruled.

[1] And Cascade does not provide authority otherwise.

[2] Regarding the prior dig ticket, in Reply, Cascade argues the SAC deliberately omits facts about whether the utility lines were marked and whether Cascade followed those marks such that Plaintiff has engaged in artful pleading. (Reply p. 2.) First, this argument is untimely as it suggests sham pleading. Second, it is improper as it attempts to insert Cascade’s version of events, which again is improper on a demurrer. Third, the argument is unpersuasive as the basis for the demurrer as to the original complaint and the FAC were that insufficient facts were alleged as to what Cascade did, meaning that Plaintiff could not have omitted facts in its SAC when they were not even initially provided.

[3] Cascade cites to the Rutter Group, Civil Procedure Before Trial, Section 7:4.1(a) for its proposition that a general demurrer is appropriate to “force plaintiff to clarify particular elements of the cause of action involved, placing defendant in a better position to satisfy its burden on the summary judgment.” (Reply p. 3:21-26.) However, the facts here are not “vague or ambiguous” to make it difficult for Cascade to ascertain Plaintiff’s claims.

[4] A plaintiff is only required to plead ultimate facts and need not plead evidentiary facts supporting the allegations of the ultimate facts. (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548-1549.)