Judge: Joel L. Lofton, Case: 19STCV40032, Date: 2022-10-13 Tentative Ruling
Case Number: 19STCV40032 Hearing Date: October 13, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: October
13, 2022 TRIAL DATE: No date set.
CASE: SARKIS ATYEMIZIAN,
an individual; SILVA ATYEMIZIAN, an individual, v. SOUTHERN CALIFORNIA GAS
COMPANY, a corporation; SEMPRA ENERGY, a corporation; DESIGN BUILD STRATEGIES,
INC, a California corporation; JOHNNY KANOUNJI, an individual, KEVIN HUNTER, an
individual; AMERICAN CONTRACTORS INDEMNITY COMPANY, a California Corporation;
SAPPHIRE POOL AND SPA CONSTRUCTION INC., a California Corporation; and DOES 1
through 50, inclusive.
CASE NO.: 19STCV40032
MOTION
FOR SUMMARY ADJUDICATION
MOVING PARTY: Defendant Southern
California Gas Company
RESPONDING PARTY: Plaintiffs
Sarkis Atyemizian and Silva Atyemizian
SERVICE: Filed May 6, 2022
OPPOSITION: Filed September 29, 2022
REPLY: Filed October 7, 2022
RELIEF
REQUESTED
So Cal Gas moves for summary adjudication as to Plaitniffs’ ninth cause
of action for inverse condemnation.
BACKGROUND
This case arises out of Plaintiffs Sarkis
Atyemizian and Silva Atyemizian’s (“Plaintiffs”) claim that Defendants Southern
California Gas Company (“So Cal Gas”), Design Build Strategies, Inc (“Design
Build”), Johnny Kanounji, Kevin Hunter, American Contractors Indemnity Company,
and Sapphire Pool and Spa Construction Inc. (“Defendants”) negligent installed
or maintained the gas lines on Plaintiffs’ property at 1452 E. Woodbury Rd.,
Pasadena, California 91104. Plaintiffs allege that on November 18, 2018, an
explosion occurred on their property causing extensive damage. Plaintiffs
allege that the explosion occurred due to a leak in the gas line between the
main line and the gas meter on their property, causing gas to seep into the
subflooring which was ignited by an unknown source.
Plaintiffs filed a first amended complaint
on January 29, 2021, alleging nine causes of action for (1) negligence, (2)
negligence, (3) breach of contract, (4) breach of contract, (5) breach of
implied covenant to perform work in a competent manner, (6) violation of
Business and Professions Code section 7160, (7) recovery on license bond; (8)
negligent misrepresentation; and (9) inverse condemnation.
TENTATIVE RULING
So Cal Gas’s
motion for summary adjudication of Plaintiff’s ninth cause of action is denied.
OBJECTION TO EVIDENCE
So
Cal Gas’s objections number 1 and 2 to the declaration of Brian H. Aanestad are
overruled.
So Cal
Gas’s objections number 1 through 8 to the declaration of Johnny Kanounji are
overruled.
REQUEST FOR JUDICIAL NOTICE
Plaintiffs’
request for judicial notice of Exhibit A is granted pursuant to Evidence Code
section 452, subdivision (d).
Plaintiffs’
request for judicial notice of Exhibit B is granted pursuant to Evidence Code
section 452, subdivision (b) and (h).
LEGAL STANDARD
“A party may move for summary adjudication as
to one or more causes of action within an action, one or more affirmative
defenses, one or more claims for damages, or one or more issues of duty, if the
party contends that the cause of action has no merit, that there is no
affirmative defense to the cause of action, that there is no merit to an
affirmative defense as to any cause of action, that there is no merit to a
claim for damages, as specified in Section 3294 of the Civil Code, or that one or
more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs. 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.” (Code
Civ. Proc., § 437c, subd. (f)(1).)
“ Generally, a defendant moving for summary
adjudication must present evidence that either ‘conclusively negate[s] an
element of the plaintiff's cause of action’ or ‘show[s] that the plaintiff does
not possess, and cannot reasonably obtain,’ evidence necessary to establish at
least one element of the cause of action. [citation]” (Cornell v. Berkley
Tennis Club (2017) 18 Cal.App.5th 908,
924-25.) “If the [defendant] satisfies its initial burden, the burden shifts to
the [plaintiff] to set forth ‘specific facts’ showing that a triable issue of
material fact exists. [citation]” (Id. at p. 925.)
DISCUSSION
Ninth Cause of Action for Inverse
Condemnation
Plaintiffs’
ninth cause of action alleges that So Cal Gas and Sempra Energy are public
utility companies that maintain the natural gas utility lines that run to the
gas meter on Plaintiffs’ property.
“A
successful inverse condemnation claimant must prove that a public entity has
taken or damaged its property for a public use.” (Pacific Bell v. City of
San Diego (2000) 81 Cal.App.4th 596, 602.) A ‘ “public use” ’ is ‘ “
‘a use which concerns the whole community as distinguished from a particular
individual or a particular number of individuals; public usefulness, utility or
advantage; or what is productive of general benefit; a use by or for the
government, the general public or some portion of it.’ ” ’ ” [Citation.] (City
of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, 221.)
Public
Use
So Cal Gas
asserts that Plaintiffs’ ninth cause of action fails as a matter of law because
the gas meter on Plaintiffs’ property was not for public use, citing Cantu
v. Pacific Gas & Electric Co. (1987) 189 Cal.App.3d 160 (“Cantu”),
and Foley Investments, L.P. v. Alisal Water Corp. (2021) 72 Cal.App.5th
535 (“Foley”).
In Cantu,
supra, 189 Cal.App.3d at p. 163, PG&E had contracted with the developers
to provide electrical and gas service. PG&E installed a joint trench for
its gas and electric facilities. (Ibid.) The hillside on which the
plaintiffs built their house collapsed, making the residence uninhabitable. (Ibid.)
The trial court held PG&E liable for inverse condemnation. (Ibid.)
The appellate court reversed, holding that the service was for “a private use
and therefore inverse liability principles are inapplicable.” (Id. at p.
164.) The Court noted that the extension “was designed to fulfill an individual
need” and was “unlike the construction of permanent transmission towers or
power lines . . . or telephone poles.” (Id. at p. 164.) The Court
further noted that PG&E had not acquired an easement through legislative
action or by eminent domain, but rather been granted an easement by the private
developer. (Id. at p. 165.)
In Foley,
supra, 72 Cal.App.5th at p. 537, the plaintiff brought an action against
a water service company, Alco, after a water main that runs through a portion
of the plaintiffs’ apartment complex repeatedly ruptured. Alco had contracted
with the developer of the property to install a water main on the property to
comply with the fire marshal’s requirements. (Id. at p. 539.) The
developer granted Alco an easement for the main, and Alco did not take the land
by eminent domain. (Ibid.) The appellate court upheld the trial court’s
ruling that the water main was for a private use. (Id. at p. 546.) The
Court noted that the main was installed pursuant to a contract with a private
developer rather than through eminent domain authority. (Id. at p. 544.)
Additionally, the Court noted that the main was installed only for the benefit
of the property at issue. (Ibid.)
Here, So Cal
Gas asserts that the meter on Plaintiffs’ property is analogous to the
private-use utility projects in Cantu and Foley. So Cal Gas
provides that the natural gas service to Plaintiffs’ property is provided by a
½-inch service pipeline that attaches to the main distribution pipeline in
Woodbury Road and terminates at the meter set assembly attached to Plaintiffs’
property. (Estrada Decl. ¶ 7.) So Cal Gas provides that the pipeline was installed in 1976
and serves one property. (Rosenberg Decl. ¶ 3.) So Cal Gas further provides
that it generally does not condemn property for installation and did not do so
for the service pipeline on Plaintiffs’ property. (Id. ¶ 4.)
However,
both Cantu and Foley are distinguishable from the instant case. First,
So Cal Gas has failed to establish that the gas meter on Plaintiffs’ property “was
designed to fulfill an individual need.” (Cantu, supra, 189
Cal.App.3d at p. 164.) The fact that one property is the ultimate benefactor of
the meter is insufficient to establish that So Cal Gas installed the gas meter
to address an individual need of the property. Without further evidence, it is
just as reasonable to conclude that the meter on Plaintiffs’ property was part
of a system to provide natural gas to every residence in the neighborhood
starting from the main line and terminating at the meter on each property.
Notably, the Court in Foley emphasized that the project was not done
through Alco’s “usual practice”, but rather was an additional service provided
to address specific requirements made by a fire marshal. (Foley, supra,
72 Cal.App.5th at p. 539.)
Further, in
both cases, the service provided was an additional utility service provided
pursuant to a contract with a private developer. So Cal Gas’s evidence that the
property was not taken by condemnation, by itself, is not sufficient to
establish that the gas meter on Plaintiffs’ property is not a public use case.
So Cal Gas
has failed to establish that Plaintiffs are unable to show that the gas meter
on their property is for a public use.
Causation
So Cal Gas next
argues that Plaintiffs are unable to establish the required causation to
sustain their claim for inverse condemnation.
For causation
to exist in an inverse condemnation claim, “the damage to private property must
be substantially caused by an inherent risk presented by the deliberate design,
construction, or maintenance of the public improvement.” (City of Oroville
v. Superior Court (2019) 7 Cal.5th 1091, 1105.) “The inherent risk
assessment requires a reviewing court to consider whether the inherent dangers
of the public improvement as deliberately designed, constructed, or maintained
materialized and were the cause of the property damage.” (Id. at p.
1106.) To establish substantial causation, courts must assess whether “the
damages ‘followed in the normal course of subsequent events’ and were ‘predominantly’
produced by the improvement.” (Id. at p. 1108.)
So Cal Gas
asserts that Plaintiffs are unable to establish causation because the
subsequent actions were intervening factors in the alleged leakage and
explosion. In 1976, So Cal Gas installed a ½-inch polyethylene service pipeline
that services gas to Plaintiffs’ property. (SSUF Issue 2, No. 1.) So Cal Gas
provides that utility lines were run to the back house located on Plaintiffs’
property. (SSUF Issue 2, No. 10.) So Cal Gas provides that the original ½-inch
piping had been moved to accommodate a 1 ¼-inch yellow polyethylene gas line to
service the back house. (Carnahan Decl. ¶ 9.) So Cal Gas provides that the leak was caused by the bending
of the original pipe to make clearance for the yellow pipe leading to the back
home. (Id. ¶ 15.)
In
opposition, Plaintiff asserts that the ½-inch pipe was improperly installed in
1976 and the connection joint where the leak occurred was not properly fused.
(Aanestad Decl. ¶ 19.) Plaintiff asserts that the ½-inch pipe was
misaligned when installed, putting pressure on the coupling joint. (Id. ¶
24.) Plaintiff further asserts that the pipeline was improperly fused to the
coupling. (Id. ¶ 26-33.)
Although So Cal Gas has established there is a subsequent
occurrence – the installation of an additional pipe to service the backhouse – Plaintiffs
have demonstrated that a triable issue of material fact exists as to whether
the gas meter on their Property was designed, constructed, or maintained
by So Cal Gas in a manner that caused the alleged incident.
CONCLUSION
So Cal Gas’s
motion for summary adjudication of Plaintiff’s ninth cause of action is denied.
Moving
party to give notice.
Dated: October 13,
2022 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an
email to the court indicating their
intention to submit.
Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org