Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This lawsuit arises from property damage connected to work performed by Defendant Southern California Edison’s (“SCE’s”) outside contractor, Defendant Edison Power Constructors, Inc. (“EPC”).  While replacing a deteriorated SCE utility pole on Topango Canyon Boulevard, EPC inadvertently drilled into an underground drainage culvert owned by Defendant Caltrans, and then set the replacement pole into the broken pipe.  During a subsequent rainstorm in December 2019, the blockage to the culvert caused a mudslide on Plaintiff William Howell’s property located downgradient from the damaged pipe (the “Property”).   

On January 9, 2020, SCE retained Defendant Hampton Tedder Electric Company (“Moving Defendant”) to repair a leaning electric pole with water erosion around the pole at or near the Property.  (Undisputed Material Facts (“UMF”) No. 1.)  Upon discovering the subject pole was installed into a drainage culvert, Moving Defendant removed the pole and relocated it about five feet away.  (UMF No. 2.)  Moving Defendant did not install any pea gravel in or around the damaged culvert.  (UMF No. 4.)  Moving Defendant had no further involvement with the pole or the Property.  (UMF Nos. 2, 4.)   

Plaintiff has sued Moving Defendant for (1) negligence (first cause of action), (2) private nuisance (third cause of action), (3) public nuisance (fourth cause of action) and (4) trespass (fifth cause of action).   

This hearing is on Moving Defendant’s motion for summary judgment.  Moving Defendant argues that its work was limited to the removal and relocation of the power pole and it did not, as Plaintiff contends, install pea gravel in or around the damaged culvert.  In any event, assuming it did install the pea gravel, there were no rain events during the period the gravel was in the culvert (from January 9, 2020 to January 12, 2020), and accordingly, it could not have caused any damage to Plaintiff, which is an essential element of each of Plaintiff’s claims.   

LEGAL STANDARD  

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic Ritchfield Co. (2001) 25 Cal.4th 826, 843.)  Code Civ. Proc. §437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Minor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67).   

As to each claim as framed by the complaint, a defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element of the claim(s) or by establishing an affirmative defense.  (Code Civ. Proc. §437c(p)(2); Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)  

Once the defendant has met its 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.  (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 

REQUEST FOR JUDICIAL NOTICE 

Moving Defendant requests judicial notice of the National Weather Service’s Climatological Data for Santa Monica Pier, California – January 2020.  The Court grants the request pursuant to Cal. Evid. Code §§452(h) and 453. 

EVIDENTIARY OBJECTIONS 

The Court overrules Plaintiff’s Objection Nos. 1-7 and sustains Objection Nos. 8-9.  The Court sustains Moving Defendant’s Objection Nos. 1, 2, 3, 5, 6, 7, 8, 9, 10 and overrules Moving Defendant’s Objection No. 4 to the Declaration of Todd M. Lander.  The Court sustains Objection Nos. 1, 2, 3 and 4 to the Declaration of William P. Howell.   

DISCUSSION 

Each of Plaintiff’s claims against Moving Defendant requires a showing of harm caused by Defendant’s conduct.  (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 (negligence requires a showing that Plaintiff was harmed by defendant’s conduct); CACI 2021 (private nuisance requires showing of harm); CACI 2020 (public nuisance requires showing of harm); Ralphs Grocery Co. v. Victory Consultants Inc. (2017) 17 Cal.App.5th 245, 261 (trespass requires a showing that Plaintiff was harmed by defendant’s conduct). 

  Here, Plaintiff cannot make a showing it was harmed by Moving Defendant’s conduct.  Moving Defendant’s work was limited to the removal and relocation of the power pole about five feet away.  (UMF No. 22.)  Plaintiff has not alleged any deficiencies to the removal and replacement of the pole.   

Plaintiff contends, without offering any admissible evidence, that Moving Defendant put pea gravel in or around the damaged culvert on January 9, 2020.  But Moving Defendant has presented admissible evidence it was not responsible for installing the pea gravel.  (UMF No. 4.)   

Plaintiff relies primarily on the deposition testimony of a Caltrans employee, Marcoz Hernandez, to argue that Hampton Tedder installed the pea gravel.  But Hernandez testified that he did not personally see Hampton Tedder install the pea gravel.  (Ex. A to Kim Decl. at 191:15-18.)  Instead, Hernandez testified he relied on a statement made by an employee of Tidwell to determine that Hampton Tedder installed the pea gravel.  (Ex. 6 to Lander Decl. at 51:18-23.)  This is inadmissible hearsay and cannot defeat a motion for summary judgment. (Craig Corp. v. County of Los Angeles¿(1975) 51 Cal. App. 3d 909, 915 (as a general rule, inadmissible evidence¿cannot support or defeat a motion for summary judgment).) 

Plaintiff also relies on Moving Defendant’s Response to Special Interrogatories, Set One.  However, that response was subsequently amended.  The initial response, therefore, has been superseded and cannot defeat a motion for summary judgment.   

Plaintiff also points to the fact that Hampton-Tedder obtained pea gravel from SCE in January 2020, specifically as part of the order form by which SCE retained Hampton-Tedder to conduct work at the location.  But the order form was not submitted as an exhibit.  In any event, the fact that Hampton-Tedder obtained pea gravel does not create a triable issue that it installed the pea gravel at the damaged culvert.   

Plaintiff further relies on “photographic evidence” taken while Hampton-Tedder was on the Property—purportedly depicting pea gravel on and around the damaged culvert.  But the photos are not authenticated.  They are submitted as part of Plaintiff’s declaration, but Plaintiff has no foundation or personal knowledge as to when and where the photos were taken and which company employed the depicted employees.   

In any event, the gravel was removed by January 12, 2020 (UMF No. 5), and because there were no rain events between January 9, 2020 to January 12, 2020 (Ex. 1 to RFJN), there can be no harm from the pea gravel, even if it was installed by Moving Defendant.   

Plaintiff argues that the pea gravel caused damage because it delayed the assessment of the problem and the repair.  Plaintiff relies on the testimony of Hernandez who claims he instructed Hampton Tedder not to cover up the hole with pea gravel and to notify him when the hole was exposed.  Hampton-Tedder purportedly ignored those directions and instead filled the prior hole with pea gravel and in the process concealed the error and prevented Hernandez, Caltrans or anyone else from assessing the damage.  There is no evidence, however, that this delay caused any damage to the Property.  Under Plaintiff’s version of events, the delay was not even a day.  (Plaintiff’s Additional Material Facts (“AMF”) Nos. 15-16.)     

Accordingly, the Court grants summary judgment in favor of Moving Defendant.   

CONCLUSION 

For the foregoing reasons, the Court GRANTS Defendant Hampton-Tedder Electric Company’s motion for summary judgment.   

 

IT IS SO ORDERED. 

 

DATED: March 8, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court