Judge Kenneth R. Freeman, Case Number: 20STCV39273, Date: 2023-11-08 Tentative Ruling

Judge: Kenneth R. Freeman, Case: 20STCV39273, Date: 2023-11-08 Tentative Ruling

Case Number: 20STCV39273 Hearing Date: November 8, 2023 Dept: 14

#1 USAA v. SOUTHERN CALIFORNIA EDISON COMPANY

Case No.: 20STCV39273 (Lead Case)

Hearing Date: 11/8/23

Department 14

Case Filed: 10/13/20

MOTIONS FOR JUDGMENT ON THE PLEADINGS

Moving Party: D/Southern California Edison

Responding Party: Individual Plaintiffs in Saddle Ridge Fire litigation

Responding Party: Subrogation Plaintiffs in Saddle Ridge Fire litigation

Responding Party: Public Entity Plaintiffs in Saddle Ridge Fire litigation

TENTATIVE RULING

Deny motions for judgment on the pleadings

DISCUSSION

I. Background

These related cases arise out of the Saddle Ridge Fire. Individual Plaintiffs allege that a result of the Saddle Ridge Fire, they have suffered damages including, but are not limited to, the following: damage to, or destruction of, real and personal property; damage to, or loss of, cherished possessions; out-of-pocket expenses directly and proximately incurred as a result of the fire; alternative living expenses; evacuation expenses; business loss; destruction of business property; and various types of emotional distress, annoyance, inconvenience, disturbance, mental anguish and loss of quiet enjoyment of property. [Individual Plaintiffs’ Master Complaint, ¶2.]

Plaintiffs allege the Saddle Ridge Fire was caused by a massive electrical over-current event along SCE’s Gould-Sylmar 220 kilovolt (“kV”) High Voltage Transmission Circuit in Los Angeles County. [Individual Plaintiffs’ Master Complaint, ¶14.] Per the Complaint, SCE’s Transmission Tower S5-2, also identified as M5-T2 or Tower 2, is where electrical faulting originated (hereinafter referred to as the “SCE Fault Tower”) and Transmission Tower S2-5, also identified as M2-T5 or Tower 5, is where the Saddle Ridge Fire ignited (hereinafter referred to as the “SCE Fire Origin Tower”) (jointly referred to as “SCE Transmission Towers”). [Id.]

On October 10, 2019, and including the days immediately prior and following, most of Southern California was being impacted by strong forecast Santa Ana winds and low humidity levels signifying a high risk of wildfires. [Individual Plaintiffs’ Master Complaint, ¶15.] Los Angeles County was under a red flag warning for the days leading up to and including October 10, 2019. [Id.] Electrical utilities such as SCE should have been under a heightened sense of alert and should have exercised due care to avoid causing a wildfire. [Id.]

The Saddle Ridge Fire caused massive evacuations in the San Fernando Valley of up to 23,000 homes and resulted in almost 8,800 acres burned, one death, and eight other injuries. [Individual Plaintiffs’ Master Complaint, ¶16.] Individual Plaintiffs allege that on the night of October 10, 2019, SCE had in place the Fault Tower and the Fire Origin Tower, as well as all related transmission equipment necessary for the safe and reliable transmission and distribution of electricity on the Gould-Sylmar circuit, its real property, easements, and rights of way as part of an Electrical Transmission System (hereinafter, the “ETS”). [Individual Plaintiffs’ Master Complaint, ¶17.] At or around 8:57 p.m. a failure of the ETS, including but not limited to, a clevis, dampers and/or jumpers on the SCE Transmission Towers caused a massive electrical over-current event at the SCE Fault Tower owned, operated, maintained, and controlled by SCE and Does 1 through 50, and each of them. [Id.] The SCE Fault Tower was a supporting metal structure in the Defendants’ GouldSylmar 220kV Circuit that carried electricity between the Gould Substation and Sylmar Substation located within the San Fernando Valley. [Master Complaint, ¶18.] It was owned and operated by SCE and monitored by SCE employees. [Id.]

Individual Plaintiffs allege that on the date of the Saddle Ridge Fire, the B-phase suspension insulator top clevis failed (“Broken Clevis”) on the SCE Fault Tower, which caused the suspension insulators and attached conductor to break away from the middle cross arm, and fall upon the bottom cross arm (“Subject Conductor”). [Individual Plaintiffs’ Master Complaint, ¶19.] Individual Plaintiffs allege the Broken Clevis showed signs of erosion, wear, stress, and deterioration and should have been replaced by Defendants. [Individual Plaintiffs’ Master Complaint, ¶20.] The Subject Conductor was allegedly carrying approximately 220kV of electricity. [Master Complaint, ¶21.] The contact between the Subject Conductor and bottom metal cross arm allegedly caused a massive electrical fault (“Subject Fault”). [Id.] The Subject Fault was detected by SCE’s protective relay devices. Individual Plaintiffs allege that SCE reported the event and their subsequent system protection reactions to the CPUC on November 15, 2019. [Individual Plaintiffs’ Master Complaint, ¶22.]

Individual Plaintiffs allege that according to SCE’s report to the CPUC, the Gould-Sylmar line tripped open at 20:57:38.248 by tripping breakers at both Gould and Sylmar substations, thereby de-energizing the entire Gould-Sylmar Circuit including the Subject Conductor. [Individual Plaintiffs’ Master Complaint, ¶23.] At a time, unspecified by SCE, the Gould-Sylmar Circuit, including the Subject Conductor, was automatically reclosed, allowing electricity to flow back into the Gould-Sylmar Circuit including through the Subject Conductor. [Individual Plaintiffs’ Master Complaint, ¶24.] The recloser allegedly caused fault current to once again flow into the Subject Conductor, and through the SCE Fault Tower due to the Subject Conductor laying across the lower metal cross-arm. [Id.] Individual Plaintiffs allege that according to SCE’s report to the CPUC, only the Gould circuit side tripped open again at 20:57:39.402 when two breakers tripped at the Gould substation, thereby presumably de-energizing the entire Gould-Sylmar Circuit including the Subject Conductor. [Individual Plaintiffs’ Master Complaint, ¶25.]

Individual Plaintiffs allege that according to SCE’s report to the CPUC, only the B-Phase was involved in the two faulting events described in paragraphs 23-26. [Individual Plaintiffs’ Master Complaint, ¶26.] Individual Plaintiffs’ allege that according to SCE’s report to the CPU, the fault magnitude for the first fault initialization time was 18,700 amps. [Individual Plaintiffs’ Master Complaint, ¶27.] According to SCE’s report to the CPUC, the fault magnitude for the second fault initialization time was 7,300 amps. [Id.] According to SCE’s report to the CPUC the adjacent Eagle Rock-Sylmar 220kV Circuit did not relay or lock out. [Individual Plaintiffs’ Master Complaint, ¶28.]

When the Subject Conductor fell onto the bottom cross arm on the SCE Fault Tower, it allegedly energized the metal SCE Fault Tower with approximately 130,000 volts of electricity that produced a flash that was captured by dash camera footage. [Individual Plaintiffs’ Master Complaint, ¶29.] The result of the Subject Fault at the SCE Fault Tower, Individual Plaintiffs allege, elevated the SCE Fault Tower and its attached overhead shield conductor to nearly full line-to-neutral voltage of approximately 130,000 Volts. [Individual Plaintiffs’ Master Complaint, ¶31.] However, Individual Plaintiffs allege the SCE Fault Tower was not grounded with any purposeful grounding device (such as ground rods or ground mats) and was only earthed through its steel-reinforced, concrete footings. [Individual Plaintiffs’ Master Complaint, ¶33.]

Individual Plaintiffs allege the electricity from the Subject Fault traveled 12 transmission towers from the SCE Fault Tower, where the electricity created a powerful electrical event(s) that ignited surrounding vegetation and started the Saddle Ridge Fire. [Individual Plaintiffs’ Master Complaint, ¶34.]

Individual Plaintiffs also allege the Saddle Ridge Fire ignited from at least one or both events: (1) electricity from the Subject Fault propagated to the SCE Fire Origin Tower and went to ground through its concrete footings, comprised of mental including anchor bolts, rebar, rebar cages, and other mental materials, where the electricity ignited ground vegetation, and/or (2) vegetation was touching or close enough to the SCE Fire Origin Tower that the electricity ignited the vegetation. [Individual Plaintiffs’ Master Complaint, ¶35.]

Based on these events, the Individual Plaintiffs’ Master Complaint alleges claims for inverse condemnation, negligence, trespass, nuisance, violation of Public Utilities Code §2106, and violation of Health and Safety Code §13007.

In addition to the Individual Plaintiffs, two other groups of Plaintiffs have filed complaints against SCE arising out of the Saddle Ridge fire – the Subrogation Plaintiffs (comprised of United Services Automobile Association, USAA Casualty Insurance Company, USAA General Indemnity Company, Garrison Property and Casualty Insurance Company, and others) and the Public Entity Plaintiffs (a group of government entities, municipal corporations, and/or special districts in the State of California). The Subrogation Plaintiffs’ master complaint alleges claims for inverse condemnation and negligence. The Public Entities’ master complaint alleges claims for inverse condemnation, negligence, trespass, private nuisance, public nuisance, premises liability, violation of Public Utilities Code §2106, and violation of Health and Safety Code §13007.

Defendant SCE moves for judgment on the pleadings as to the inverse condemnation claim in all three complaints.

II. Requests for Judicial Notice

Defendant SCE’s request for judicial notice is granted as to exhibits A, C, D, and E pursuant to Evidence Code §452(c), as these are all official acts of a California government agency and are subject to judicial notice under this section. The request is granted as to Exhibit B pursuant to Evidence Code §452(d), as the CPUC amicus brief in Foley is part of the Court’s record in that litigation. The Court does not judicially notice the truth of the matters set forth within Exhibit B, and judicial notice is limited to the fact that the exhibit appears in the Court’s file in that case.

The Individual Plaintiffs’ request for judicial notice is granted as to Exhibits A-H pursuant to Evidence Code §452(d). These exhibits are records of either state or federal courts and are subject to judicial notice under this section. However, none of these cases stand as binding or persuasive authority with respect to the issues to be determined on the instant motions for judgment on the pleadings.

III. Claim for inverse condemnation

A. Legal standards governing claims for inverse condemnation

The term “inverse condemnation” is applied to an action by an owner to recover damages for injury to his or her property from some public works undertaking or other activity by an agency with power to condemn. The designation was coined because the object—compensation for property damaged in connection with a public use—is the same as in a condemnation action. See 8 Witkin, Summary 11th Const Law § 1272 (2022) (citing Heimann v. Los Angeles (1947) 30 C.2d 746, 753, 185 P.2d 597 [procedure is different, but result is same]; Klopping v. Whittier (1972) 8 C.3d 39, 43, 104 C.R. 1, 500 P.2d 1345, infra, § 1373 [precondemnation publicity]; Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 C.3d 862, 866, 218 C.R. 293, 705 P.2d 866, infra, § 1273 [effect of entity's lack of power to condemn]; 7 Miller & Starr 4th, § 23:1 et seq.; C.E.B., 2 Condemnation Practice 3d, Chap. 13 et seq.; 32 Proof of Facts 3d 405 [inverse condemnation by physical invasion].)

The elements of a claim for inverse condemnation are:

Plaintiffs owned the real property;
the property was taken or damaged;
the cause was a public project; and
causation.

Cal. State Automobile Assn. v. City of Palo Alto (2006) 138 Cal. App. 4th 474, 480. See also Smith v. City & County of San Francisco (1990) 225 Cal. App. 3d 38, 45 (to state a cause of action for inverse condemnation, complainants must allege facts showing deprivation of substantially all reasonably beneficial use of the property); Wildensten v. East Bay Regional Park Dist. (1991) 231 Cal.App.3d 976, 979-981 (“To state a cause of action for inverse condemnation, the plaintiff must allege the defendant substantially participated in the planning, approval, construction, or operation of a public project or improvement which proximately caused injury to plaintiff's property.”); Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 762 (“[S]ubstantial participation does not necessarily mean actively participating in the project, … but may include the situation where the public entity has deliberately chosen to do nothing.”); ibid. (“a public entity is a proper defendant in a claim for inverse condemnation if it has the power to control or direct the aspect of the public improvement that is alleged to have caused the injury.”); Holtz v. Sup. Ct. (1970) 3 Cal. 3d 296, 302 (public entities may be liable on an inverse condemnation theory for the alleged physical damage to plaintiffs' property proximately caused by the loss of subjacent support); Odello Bros. v. County of Monterey (1998) 63 Cal. App. 4th 778, 785-788 (inverse condemnation action may lie to establish the owner's damages from flooding caused by public entities, depending on reasonableness, public need, and the gravity of the harm).

B. Discussion

Defendant Southern California Edison moves for judgment on the pleadings as to the claims for inverse condemnation alleged by all three groups of Plaintiffs in the Saddle Fire litigation.

1. SCE as a Private Corporation vs. a Public Entity

SCE primarily argues that it is not liable as a matter of law for inverse condemnation, because it is a private entity (and not a public entity). In support of that proposition, SCE relies on City of Oroville v. Superior Court of Butte County (2019) 7 Cal.5^th 1091. In that case, WGS was a commercial property owner (comprised of a group of dentists), which sued the City of Oroville for inverse condemnation and nuisance arising out of a sewer backup. Raw sewage began spewing from the toilets, sinks, and drains of the building. The plaintiffs brought suit for inverse condemnation against the City of Oroville, who the plaintiffs alleged was legally responsible for the property damage because it was caused by the sewer system’s failure to function as intended. City of Oroville, 7 Cal.5^th at 1097-1098.

The City of Oroville had moved for summary judgment on the claims, arguing that plaintiff WGS had failed to install a backwater valve. The trial court denied the motion, stating that either prevention of the blockage or installation of the backflow prevention device could have prevented the damage. WGS also sought a judicial determination on the City’s liability for inverse condemnation, and the trial court found in favor of WGS (notwithstanding WGS’s own expert testifying that the sewage backup incident could have been averted if a fully functional backwater valve had been installed on WGS’s building). The trial court concluded an inverse condemnation occurred, even though the City shared causal responsibility for the damage with WGS. City of Oroville, 7 Cal.5^th at 1100.

The Court of Appeal affirmed, concluding, among other things, that WGS’s failure to install the backwater valve did not defeat the inverse condemnation claims. City of Oroville, 7 Cal.5^th at 1101. The California Supreme Court granted review “to address whether the City is liable in inverse condemnation where sewage backs up onto private property because of a blockage in the City's sewer main and the absence of a backwater valve that the affected property owner was legally required to install and maintain.” City of Oroville at 1101.

The California Supreme Court reversed. In doing so, the City of Oroville court commented:

Public entities are not strictly or otherwise automatically liable for any conceivable damage bearing some kind of connection, however remote, to a public improvement. To succeed on an inverse condemnation action, a plaintiff must ordinarily show — assuming the public entity made reasonable assumptions about the public improvement in question — that the damage to private property was substantially caused by inherent risks associated with the design, construction, or maintenance of the public improvement. City of Oroville, 7 Cal.5^th at 1098.

The City of Oroville court further commented on the requirements to establish liability on the inverse condemnation claim:

Together, our inverse condemnation decisions offer a relatively clear picture of the causal relationship that must be shown for a claim to succeed. Liability depends on whether some element of physical, but-for causation is present to link the public improvement and the damage. The damage must be the “‘necessary or probable result’ of the improvement, or if ‘the immediate, direct, and necessary effect’ thereof was to produce the damage.” (Van Alstyne, supra, 20 Hastings L.J at p. 436, fn. omitted, italics added.) Rather than training attention on the mere presence of causation, our cases have focused instead on whether there is proof that the damages “followed in the normal course of subsequent events” and were “predominantly” produced by the improvement. City of Oroville, supra, 7 Cal.5th at 1107–1108.

Contrary to Defendant SCE’s argument, City of Oroville does not hold that a private entity may not be held liable on a claim for inverse condemnation. The law is to the contrary.

In Barham v. Southern Cal. Edison Co. (1999) 74 Cal.App.4^th 744, the Court of Appeal reversed the trial court’s judgments in favor of Edison on the inverse condemnation claim, rejecting the finding that there had been no taking for public use. The Court of Appeal framed the issue as whether defendant was a public agency that damaged the property owners’ property for a public use, and reasoned that public utilities are held to the standards imposed on public entities, and that there is no rational basis upon which to find a distinction between the operation of a privately owned electric utility and a publicly owned one.

The Barham court noted that the critical question of public versus private use is a question of law. Barham, 74 Cal.App.4^th at 752. The Barham court further noted that “generally, condemning private property for the transmission of electrical power is a public use and inverse condemnation will apply.” Id. It reasoned that “[t]he fundamental policy underlying the concept of inverse condemnation is to spread among the benefiting community any burden disproportionately borne by a member of that community, to establish a public undertaking for the benefit of all.” Id. (citing Belaire v. Riverside County Flood Control Dist. (988) 47 Cal.3d 550, 558).

The Barham court outright rejected SCE’s position that inverse condemnation principles should not have applied in that case because SCE was a privately owned public utility, not a public entity. The Barham court noted that publicly owned electric utilities have been held liable in inverse condemnation in situations virtually identical to the facts in Barham. Barham, 74 Cal.App.4^th at 753. The Barham court warned that if it “[w]ere…to adopt SCE’s position, [it] would be required to differentiate between damage resulting from the operation of a utility based solely upon whether the utility is operated by a governmental entity or by a privately owned public utility.” Id. The court opined that it was “not convinced that any significant differences exist regarding the operation of publicly versus privately owned electric utilities as applied to the facts in this case and find there is no rational basis upon which to found such a distinction.” Id. On that basis, the Barham court concluded that under the facts of that case, “SCE may be liable in inverse condemnation as a public entity”, and that Article I, §19 of the California Constitution (and the interpretive cases) “have as their principal focus the concept of public use, as opposed to the nature of the entity appropriating the property.” Id. (Emphasis added.)

As such, the issue was, in the eyes of the Barham court, whether the plaintiffs’ property was taken for a public use (i.e., the transmission of electric power to the public). Id. The evidence in that case reflected the circuit, of which the subject utility pole and transmission wires were a part, provided electric service to more than 1,000 households. The court ultimately concluded that the transmission of electric power through the facilities that caused damage to the plaintiffs’ property was for the benefit of the public and thus, the plaintiffs’ property was “taken or damaged” for public use. Barham at 754.

Other cases have followed Barham. For example, Pacific Bell Telephone Co. v. Southern California Edison Co. (2012) 208 Cal.App.4^th 1400 rejected a similar argument SCE made in Barham. In that case, SCE argued that for a private entity to be liable for inverse condemnation liability, it had to be a joint participant with a government entity. Citing Barham, and rejecting SCE’s reliance on Breidert v. Southern Pac. Co. (1964) 61 Cal.2d 659, the Pacific Bell court determined that liability for inverse condemnation does not require coparticipation with a public entity and that “[w]hile joint participation may certainly give rise to inverse condemnation liability, … it is [not] required.” Pacific Bell at 1405.

The Pacific Bell court likewise rejected Edison’s argument limiting a public utility’s inverse condemnation liability to only situations involving the direct exercise of its eminent domain power. Pacific Bell at 1405-1406. Ultimately, the Pacific Bell court found that SCE’s “monopolistic or quasi-monopolistic authority, deriving directly from its exclusive franchise provided by the state [citation] distinguishes Edison's action from the cases it cites rejecting inverse condemnation cases against private parties who do not have such monopolistic authority from the state.” Id. at 1406.

Thus, to the extent SCE argues that its status as a private entity shields it from any inverse condemnation liability, that position is contrary to California law. Ultimately, the Court would have to assess SCE’s liability through the standards established in Barham and the cases that follow it. However, the pleading challenge on this ground must be rejected for the reasons set forth above. The Court is not persuaded at the pleading stage by the distinction SCE attempts to draw between Barham and Pacific Bell on the one hand, and the instant case.

2. Damage to properties as inescapable or unavoidable

SCE next argues that Plaintiffs cannot allege substantial causation because the damage to their properties was not inescapable or unavoidable. Citing City of Orovoille, supra, SCE argues the “core of the test” for substantial causation requires the private property damage to be the “inescapable or unavoidable consequence” of the public improvement as planned and constructed.

The Individual Plaintiffs, the Subrogation Plaintiffs, and the Public Entity Plaintiffs have all alleged the private property damage was the “inescapable or unavoidable consequence” of the public improvement. The Individual Plaintiffs allege:

54. ….In the Saddle Ridge Fire, SCE’s ETS substantially caused Individual Plaintiffs’ damages and was more than a causal connection.

55. SCE owned and substantially participated in the design, planning, approval, construction, and operation of the SCE Transmission Towers, and ETS as public improvements for the supplying of electricity. SCE exercised control and dominion over the SCE Transmission Towers, and ETS as public improvements, a public project, and for public benefit.

56. Under City of Oroville, the Court require 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.

57. Electricity is a dangerous instrumentality that poses an inherent risk that requires the exercise of increased care and precaution commensurate with and proportionate to that increased danger so as to make the transport of electricity through the SCE Transmission Towers, and ETS safe under all circumstances and exigencies posed by the surrounding weather and vegetation to ensure maximum safety under all local conditions in the service area, including the risk of fire.

58. SCE deliberately designed its SCE Transmission Towers, and ETS to transport electricity from its substations, specifically the Gould and Sylmar substations, directly to public homes and businesses. The SCE Transmission Towers, and ETS includes SCE’s design of its electrical circuitry with system protection devices, including but not limited to fuses, breakers, and reclosers (“System Protection”) to prevent an electrical overcurrent event and/or to trip and stop the flow of electricity should an electrical overcurrent event occur. SCE could have set their System Protection settings to be more sensitive, for example, requiring a single breaker to operate in the event of an overcurrent situation. However, SCE deliberately designed its System Protection with a breaker and a half mechanism requiring, not one, but two breakers to operate from an overcurrent event, before electricity was cut to the Gould-Sylmar Circuit. This was a cost saving decision by SCE that ensured electricity was not shut off unless there was a significant overcurrent event.

59. Additionally, SCE deliberately designed its System Protection with reclosers set to reclose automatically instead of manually. After the Subject Fault, the double-breaker scheme opened the Gould-Sylmar Circuit —stopping electricity. Almost instantaneously the reclosers automatically closed allowing electricity to flow back into the Subject Line that was ow laying on top of the SCE Fault Tower’s metal cross-arm. automatically closed allowing electricity to flow back into the Subject Line that was now laying on top of the SCE Fault Tower’s metal cross-arm. [Individual Plaintiffs’ Master Complaint, ¶¶54-59.]

At ¶63, Individual Plaintiffs allege:

The inherent danger of electricity and SCE’s design of its SCE Transmission Towers, and ETS, including its System Protection, materialized in an arcing event that caused the Saddle Ridge Fire, which damaged Individual Plaintiffs’’ property. The SCE Transmission Towers and ETS that failed were owned, designed, operated, maintained, and controlled by SCE, and SCE rightfully precluded members of the public from altering or maintaining the SCE Transmission Towers, and ETS. [Individual Plaintiffs’ Master Complaint, ¶63.]

The Subrogation Plaintiffs allege in applicable part:

60. … SCE deliberately designed its System Protection with reclosers set to reclose automatically instead of manually. After the Subject Fault, the double-breaker scheme opened the Gould-Sylmar Circuit —stopping electricity. Almost instantaneously the reclosers automatically closed allowing electricity to flow back into the Subject Line that was now laying on top of the SCE Fault Tower’s metal cross-arm. This System Protection setting on the reclosers is a cost saving choice that avoided SCE having a human inspect the line prior to re-energizing the Gould-Sylmar Circuit.

61. Additionally, SCE deliberately designed the ETS to include the y-clevises on the SCE Fault Tower such that, in the event of equipment failure, the line could drop and make direct contact with the metal-cross arm below.

62. Additionally, SCE deliberately designed the SCE Fire Origin Tower and ETS such that the A, B, and C phase jumper cables on one side of the SCE Fire Origin Tower (“Arc Side”) were not prevented from moving and swaying during wind events and could make contact with the SCE Fault Tower. Upon information and belief Subrogating Plaintiffs are investigating whether arcing from the equipment on the SCE Fire Origin Tower caused or contributed to the start of the Saddle Ridge Fire insomuch as Ms. Perez Marin witnessed sparks coming down from the top of the tower at inception. SCE deliberately installed weights to the jumpers on the nonarc side of the SCE Fire Origin Tower, thus preventing the electrified jumpers on the non-arc side from moving and swaying into contact with the SCE Fire Origin Tower. The following image depicts no weight on the Arc Side of the SCE Fire Origin Tower, and one weight on the non-arc side of the SCE Fire Origin Tower.

63. Additionally, SCE deliberately designed the SCE Fire Origin Tower such that the SCE Fire Origin Tower did not have any purposeful grounding devices (such as ground rods or ground mats) and was only earthed through its steel-reinforced, concrete footings.

64. The inherent danger of electricity and SCE’s design of its SCE Transmission Towers, and ETS, including its System Protection, materialized in an arcing event that caused the Saddle Ridge Fire, which damaged Subrogation Plaintiffs’ Insureds’ property. The SCE Transmission Towers and ETS that failed were owned, designed, operated, maintained, and controlled by SCE, and SCE rightfully precluded members of the public from altering or maintaining the SCE Transmission Towers, and ETS. [Subrogation Plaintiffs’ Master Complaint, ¶¶60-64. See also Public Entities' Master Complaint, ¶¶56-60.]

Further, Subrogation Plaintiffs allege:

68. SCE’s SCE Transmission Towers, and ETS, as deliberately designed, constructed, and maintained, presented an inherent risk and danger of fire to private property. In acting in furtherance of the public objective of supplying electricity, SCE took and did take on or about October 10, 2019, a known risk that private property would be damaged and destroyed by fire.

69. The injury to Subrogating Plaintiffs’ Insureds’ property was the inescapable and unavoidable consequence of Defendant’s SCE Transmission Towers, and ETS as deliberately designed, constructed, and maintained. This damage was the necessary and probable result of SCE’s public improvement of supplying electricity. The damage to private property was substantially caused by the inherent risks presented in SCE’s deliberate design, construction and/or maintenance of the SCE Transmission Towers, and ETS, and the damages were the probable result of the public improvement and/or were the immediate, direct and necessary effect of the improvement produced resultant damage. [Subrogation Plaintiffs’ Master Complaint, ¶¶68-69. See also Public Entities' Master Complaint, ¶¶64-65.]

The three Master Complaints sufficiently allege substantial causation. The choices made by SCE with respect to the design of the system and chosen materials by SCE were allegedly made as cost-saving measures. Additionally, the design choices made by SCE allegedly resulted in an increased risk of an electrical event, and the risks allegedly caused damages to the three groups of Plaintiffs by igniting the fire. At the pleading stage, this is all that is needed.

As discussed above, Defendant SCE relies in large part on City of Oroville in arguing that Plaintiffs cannot allege substantial causation as a matter of law (and that the property damage was not an “inescapable or unavoidable consequence” of the property damage).

The California Supreme Court reversed Court of Appeal’s finding of liability based on inverse condemnation. The City of Oroville court reiterated the general rule that “[t]o succeed on an inverse condemnation action, a plaintiff must ordinarily show – assuming the public entity made reasonable assumptions about the public improvement in question — that the damage to private property was substantially caused by inherent risks associated with the design, construction, or maintenance of the public improvement.” City of Oroville, 7 Cal.5^th at 1098. However, the Supreme Court found in that case that this was “certainly not something the dentists were able to show in this case, where installation of a backwater valve on their premises not only would have prevented or drastically mitigated the risk of damage, according to experts, but was legally required. Under the circumstances, the City is not liable in inverse condemnation….” Id.

Here, though, and as argued by the three groups of Plaintiffs, the California Supreme Court affirmatively found that the plaintiff could not allege inverse condemnation under the circumstances because they failed to mitigate or prevent the damage by installing a legally required backwater valve. There is nothing on the face of the Master Complaints which indicates that the Plaintiffs could have mitigated or prevented their damages through construction or installing some sort of a device. While the Court is not foreclosing this issue from litigation following discovery, it cannot summarily resolve the issue at the pleading stage.

For these reasons, the Court determines that substantial causation has adequately been alleged.

3. Alleged Wildfire Damage Not Inherent Risk of the Deliberate Design,

Construction, or Maintenance of SCE’s Equipment

Defendant SCE next argues that Plaintiffs fail to allege the deliberate action element of inverse condemnation because they do not allege their property damage arose from the “inherent dangers of the public improvement as deliberately designed, constructed or maintained.”

Here again, the allegations excerpted above do allege that damage to the Plaintiffs’ property arose from the inherent dangers of SCE’s deliberate design of the transmission towers (including the use of automatic reclosers, including y-clevises on SCE’s tower, failing to install weights on sets of jumper cables, and failure to include any purposeful grounding devices, all coupled with SCE’s cost-saving measures). At the pleading stage, this is sufficient.

4. Accidental wildfire damage as serving no public use

Finally, Defendant SCE argues that Plaintiffs fail to allege a public use served by the Saddle Ridge Fire, and that only damage for “public use” creates a compensable undertaking. Customer Co. v. City of Sacramento (1995) 10 Cal.4^th 368. In other words, Defendant SCE argues, the damage itself must serve a public use, and that public use is not satisfied whenever damage arises from a public service.

As Customer Co. itself recognizes, however, “[t]he destruction or damaging of property is sufficiently connected with ‘public use’ as required by the Constitution, if the injury is a result of dangers inherent in the construction of the public improvement[.]” Customer Co., 10 Cal.4^th at 381-382. Here again, the allegations above sufficiently allege dangers inherent in SCE’s construction of the Towers and related components. To the extent Defendant SCE argues that there is an intent element associated with the inverse condemnation claim, the Court is unpersuaded. In that sense, the facts of Customer Co. (involving city police officers and county deputy sheriffs firing cannisters into a store, causing extensive damage to the plaintiff’s store and its contents) and Miller v. City of Palo Alto (1929) 208 Cal.74 (involving the negligent use of a garbage incinerator by employees of defendant city, resulting in damage to the plaintiffs’ property) are distinguishable from those at bar.

# 2 USAA v. SOUTHERN CALIFORNIA EDISON COMPANY

Case No.: 20STCV39273 (Lead Case)

Hearing Date: 11/8/23

Department 14

Case Filed: 10/13/20

MOTION TO COMPEL NON-DESTRUCTIVE AND MINIMALLY DESTRUCTIVE TESTING AND ANALYSIS

Moving Party: P/United Services Automobile Association

Responding Party: D/Southern California Edison

Relief Requested:

Order compelling Defendant SCE to cooperate and make available parts of the SCE towers for the purpose of inspection, non-destructive testing, and minimally destructive testing

TENTATIVE RULING

1) Proposed Current Injection Test – Deny, subject to further argument as to whether the burden, expense, and intrusiveness of ordering the Plaintiffs’ proposed Current Injection Test clearly outweighs the benefits of this discovery;

2) Destructive testing of concrete footings at the base of SCE’s electrical towers – Grant, subject to the parties’ agreement on a protocol for the drilling and repair work, including an appropriate schedule and presence of SCE personnel during the extraction and repair; and

3) Penetrative imaging of the concrete footings – Grant.

DISCUSSION

I. Background

Plaintiffs have made an inspection demand on Defendant SCE, and seek an order making available for the purpose of inspection, non-destructive testing, and minimally destructive testing components of the transmission towers identified as being involved in the origin of the Saddle Ridge Fire.

II. Motion to Compel non and minimally destructive testing

A. Standards on inspection demands and destructive testing

“Unless otherwise limited by order of the court…any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved…if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence…” CCP §2017.010.

CCP §2031.310(a) provides that on receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general. CCP §2031.310(a).

Further, a party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made. CCP §2031.010(b).

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” California Practice Guide, Civil Procedure Before Trial, ¶8:1495 (The Rutter Group 2023) (referencing CCP § 2031.310(b)(1) (emphasis added); Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 95 Cal.App.4th 92, 98, 115 CR2d 279, 284 (citing text)).

“Although no showing of ‘good cause’ is required for the inspection demand, the demanding party must be prepared to make such showing if the demand is refused. This effectively limits the use of CCP § 2031.010 et seq. for purely ‘fishing expeditions.’” California Practice Guide, Civil Procedure Before Trial, ¶8:1495.5 (The Rutter Group 2023).

To establish “good cause,” the burden is on the moving party to show both:

• Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and

• Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). California Practice Guide, Civil Procedure Before Trial, ¶8:1495.6 (The Rutter Group 2023) (referencing Glenfed Develop. Corp. v. Sup.Ct. (National Union Fire Ins. Co. of Pittsburgh, Penn.) (1997) 53 CA4th 1113, 1117, 62 CR2d 195, 197 (citing text); see also Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 95 CA4th 92, 98, 115 CR2d 279, 284 (citing text)).

“Generalized demands, insupportable by evidence showing at least the potential evidentiary value of the information sought are not permitted.” Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4^th 216, 218.

The granting or denial of a motion to compel rests within the court's sound discretion. California Practice Guide, Civil Procedure Before Trial, ¶8:1180 (The Rutter Group 2023). See also Cadiz Land Co. v. Rail Cycle (2000) 83 Cal. App. 4th 74, 117 (noting that “‘[d]iscovery statutes vest a wide discretion in the trial court, and exercise of that discretion will be disturbed only when it can be said there has been an abuse of discretion”).

The Court, in ruling on the motion, considers the following factors:

· The relationship of the information sought to the issues framed in the pleadings;

· The likelihood that disclosure will be of practical benefit to the party seeking discovery;

· The burden or expense likely to be encountered by the responding party in furnishing the information sought. California Practice Guide, Civil Procedure Before Trial, ¶8:1181 (The Rutter Group 2023) (citing Columbia Broadcasting System, Inc. v. Sup.Ct. (Rolfe) (1968) 263 Cal.App.2d 12, 19).

The Court “shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” CCP §2017.020(a).

Further, “[t]angible things may be inspected, photographed and subjected to testing or sampling.” California Practice Guide, Civil Procedure Before Trial, ¶8:1428 (The Rutter Group 2023) (citing CCP §2031.010(c)) (emphasis supplied by Rutter Guide).

Under appropriate circumstances, the court may order destructive testing of all or some portion of the physical item in question. California Practice Guide, Civil Procedure Before Trial, ¶8:1428.10 (The Rutter Group 2023) (citing San Diego Unified Port Dist. V. Douglas E. Barnhart, Inc. (2002) 95 Cal.App.4^th 1400, 1401.

Unless the parties agree otherwise, the party demanding such tests must pay the costs: “When a party demands discovery involving significant ‘special attendant’ costs beyond those typically involved in responding to routine discovery, the demanding party should bear those costs.” California Practice Guide, Civil Procedure Before Trial, ¶8:1428.11 (The Rutter Group 2023) (citing San Diego Unified Port Dist., supra, 95 Cal.App.4^th at 1405).

Demand may also be made for permission to enter upon “land or other property” in the possession or control of the party on whom the demand is made. Demand may also be made for permission to measure, survey, photograph, test or sample such land or property, or any object or operation thereon. California Practice Guide, Civil Procedure Before Trial, ¶8:1429 (The Rutter Group 2023) (citing CCP §2031.010(d)).

Plaintiffs have brought the instant motion, seeking an order permitting them to conduct site and physical inspection, as laid out in the “Protocol For Inspection Re: Demand For Site And Physical Inspection To Southern California Edison Company Pursuant To CCP §2031.010, Set One.” [See Exh. G, Declaration of David Kestenbaum.] The parties attempted to meet-and-confer on the issue, but those efforts have failed.

As Plaintiffs break the request down, the scope of requested testing is as follows:

1) Evidence removal: Plaintiffs seek limited destructive testing near the Origin Tower and a number of surrounding towers. Specifically, Plaintiffs request to prepare the area surrounding Towers 2-4, 2-5, and 2-6 by excavating a small trench in the soil surrounding each footing and removing surrounding vegetation. Plaintiffs seek to remove small core samples of the concrete footings of the Origin Tower, and then replace any removed concrete material to ensure the footing is not left with less material. Further, Plaintiffs seek to create small boring holes to allow for probing of the footings for all three Towers, and will refill those holes after the testing is concluded. Finally, Plaintiffs seek the removal of a small piece of what appears to be leftover rebar that is protruding from the Origin Tower for laboratory testing.

2) Penetrating Imaging: Plaintiffs also seek to perform several non-destructive imaging tests at a limited number of transmission towers along the circuit. The tests include ground penetrating radar scanning, ultrasonic shearwave tomography scanning, and impact echo scanning.

3) Electrical Testing: Finally, Plaintiffs request that they be permitted to conduct nondestructive electrical testing on ten (10) SCE transmission towers on the Gould-Sylmar 220 Circuit. These tests would take place over two days in eight (8) hour sessions, and Plaintiffs have agreed to coordinate with SCE to ensure that the testing does not result in any de-energization to customers. [Motion at 4:25-5:12.]

There are three broad areas of inspection and testing that Plaintiffs request. These are: (1) a “current injection test” that requires shutting down two major SCE transmission circuits (the parties disagree how long the shutdown would be required); (2) destructive testing of concrete footings at the base of SCE’s electrical towers; and (3) penetrative imaging of the concrete footings.

The Court addresses each method below.

(1) The Proposed Current Injection Test

Plaintiffs believe that the broken clevis at Tower 5-2, just minutes before the Saddle Ridge Fire was witnessed and reported to have ignited, released “a colossal amount of electricity on SCE’s lines that flow through the transmission towers that make up the circuit.” [Motion at 1:16-18.] The overcurrent event, under Plaintiffs’ theory, occurred when the top clevis failed on Tower 5-2, causing suspension insulators and attached conductor to break away from the Fault Tower’s middle cross arm and land on the Fault Tower’s bottom metal cross arm. [Kestenbaum Decl., ¶4 and Exh. C.]

Mr. Felling, retained as an electrical consultant for the Subrogation Plaintiffs, declares that the subject power line is connected to two substations – the Sylmar Substation and the Gould Substations which can both act as energy sources for the subject line failure. [Felling Decl., ¶4.] Felling opines that the subject failure occurred 5.3 miles from the Sylmar Substation, and about 22.1 miles from Gould Substation. [Id.] He declares that SCE concurs with plaintiff’s assertion that the adverse effects of the line failure transmit to successive adjacent structures via the overhead ground wire. [Felling Decl., ¶5.] Felling attacks Dr. Russell’s position that far less than 100% of the current caused by the fault at Tower 2 would have reached Tower 5. [Id.]

However, Felling explains that because each structure along line’s route is unique, resolution of that critical question requires testing of each of those resistance points on a system-wide basis rather than as a collection of individual “snapshot” testing points. [Felling Decl., ¶6.] Plaintiffs’ theory of the case, Felling attests, requires observation and testing of multiple interacting structures and lines that are subjected to a shared, mutually coupled event. [Id.]

The proposed current injection test seeks to inspect ten (10) of the thirty (30) total towers on the Gould Circuit. [Felling Decl., ¶¶5, 7, and 10.] The goal of the testing, as Plaintiffs explain, “is to accurately model and replicate the electrical conditions that existed on the Gould-Sylmar 220kV transmission line on October 10, 2019, following the clevis break. “ [Motion at 10:20-22.] Plaintiffs request the right to conduct Current Injection Testing to obtain an accurate reading of how much current flows down each transmission tower, which can be measured, modeled, and determined by the Current Injection testing. [Motion at 11:18-20.] This type of testing is not destructive. [Felling Decl., ¶11.]

Defendant SCE, though, argues that the proposed three-part inspection is unprecedented, as it will require completely de-energizing two major, high-voltage transmission circuits for multiple days. [Opposition at 9:8-10.]

Instead, SCE proposes two alternative tests that would not involve shutting down the subject lines. These are called the Fall of Potential (“FoP”) Test and the Earth Relativity (“ER”) Test. These, according to Dr. B. Don Russell, are industry standard for establishing the resistance and grounding of electrical equipment. [Russell Decl., ¶5.] Russell declares that these tests would not require de-energizing or shutting down the transmission towers, and the Institute of Electrical Engineers Standards Association (“IEEE”) has developed robust standards for each. [Id.]

However, Felling maintains that SCE’s proposed alternative tests do not accomplish the task of testing each of the resistance points on a system-wide basis rather than as a collection of individual “snapshot” testing points. [Felling Decl., ¶6.] According to Mr. Felling, SCE is familiar with the Current Injection testing and has performed this testing in around 2014 at a new substation that had not yet been energized. [Felling Decl., ¶8.] Current injection testing, Felling attests, is significantly more accurate than limiting the technical analysis to considering only FoP and ER tests.

Counsel Munson declares that de-energizing two major transmission circuits would create an enormous burden, not only on the electrical grid, but on SCE logistically and administratively. [Munson Decl., ¶4.]

Additionally, as further discussed by Brian Howard, the Principal Manager in Transmission Metropolitan Grids at SCE, current injection testing requires transmission circuits to be shut down, or “deenergized.” [Howard Decl., ¶3.] Howard attests that to the best of his knowledge, SCE has never conducted a current injection test on the relevant circuits or any circuit for the purpose of any litigation. [Id.] He declares that he is only aware of one instance ever where SCE performed a current injection-type test (which occurred in or around 2014 at a new substation that had not yet been energized). [Id.] To the best of Howard’s knowledge, SCE had never de-energized any circuit for the purpose of a conducting current injection test. [Id.]

Howard explains that even when de-energizing a circuit does not result in direct loss of power to customers, taking a major transmission circuit – or two as Plaintiffs suggest – offline increases the strain on the grid, which increases the risk of unplanned outages and other electrical issues. [Howard Decl., ¶4.] Howard attests that SCE does not take the decision to de-energize a circuit lightly, nor can it. [Id.] Howard declares that SCE typically only de-energizes circuits for necessary repair work in order to improve the safety and reliability of the grid. [Id.] Howard is not aware of any example of SCE de-energizing a major transmission circuit to facilitate civil discovery efforts. [Id.]

Howard also sets forth the procedures for de-energizing a circuit. Howard declares that any request to de-energize a circuit must be given to SCE’s Grid Control Center Outage Coordination office at least 30-days before the requested de-energization. [Howard Decl., ¶5.] The Coordination office must then seek approval from California Independent System Operator (“CAISO”), a nonprofit organization that oversees the operation of California’s bulk electric system and transmission lines, at least 24 days in advance of the requested activity. [Id.] Approval from CAISO, Howard attests, is not guaranteed. [Id.] Additionally, CAISO can, and regularly does, establish “no-touch days” on account of weather or other expected demands on the grid. [Id.] On such days, no work that impacts the generation or transfer of power can occur, even if previously scheduled and approved, Howard declares. [Id.] Thus, the process may need to be repeated multiple times before the work can be completed. [Id.]

Howard declares that in addition to coordinating with CAISO, de-energizing the Gould-Sylmar and Eagle Rock-Sylmar 220kV transmission circuits at issue in this case must also be coordinated with the Los Angeles Department of Water and Power (“LADWP”), which owns the Sylmar substation. [Howard Decl., ¶6.]

Turning to the actual logistics of the proposed testing, Howard declares that execution of the outages that Plaintiffs propose in this case would require System Operators at two separate switching centers (Mesa and Vincent) to perform the necessary switching at the Eagle Rock and Gould Substations. [Howard Decl., ¶7.] Plaintiffs estimate the testing will take at least two days. [Id.] However, Howard estimates that the required switching would take 60 to 90 minutes per line each time the circuit must be energized and de-energized, meaning up to 2-3 hours per line per day. [Id.] Thus, if the switching must be done on two separate days, it would require a total of at least two operators and up to 8-12 hours of employee time. [Id.]

Additionally, Howard attests that any testing on SCE’s system must be performed by a qualified electrical worker, likely SCE personnel. [Howard Decl., ¶8.] No third parties, except possibly an existing approved contractor, would be allowed to perform electrical testing on SCE equipment. [Id.] SCE, Howard attests, would require a crew to oversee the proposed current injection testing at both the substation and Tower 2, and anywhere else such testing was conducted, to ensure proper electric safety precautions are followed. [Id.] SCE, Howard explains, cannot allow anyone to perform electrical testing on its facilities that is not provided for by a standard promulgated or approved by the American National Standards Institute (“ANSI”), Institute of Electrical Engineers Standards Association (“IEEE”), or a similar nationally recognized organization. [Howard Decl., ¶9.]

Additionally, in Howard’s experience, the Fall of Potential test and the Earth Resistivity test (a/k/a Soil Resistivity test) are the industry standard tests for establishing the resistance and grounding of electrical equipment. [Howard Decl., ¶10.] These tests do not require de-energization of the circuits and the IEEE, Howard declares, has robust standards for each. [Id.]

Based on what is before the Court, the burden, expense, and intrusiveness of ordering the Plaintiffs’ proposed Current Injection Test clearly outweighs the benefits of this discovery – especially given the availability of the alternative Fall of Potential and Earth Relativity Tests. This is so, even though the testing appears to be relevant to Plaintiffs’ claims in the case and theory of liability. The motion is therefore denied.

Notwithstanding the Court’s tentative denial of the Current Injection Test in its current form, the Court will take further argument on this issue. The Court is especially interested in the parties further addressing the potential disruption to SCE’s customers and to SCE’s business from the Plaintiffs’ Current Injection Test proposal. From the Court’s standpoint, the paramount consideration in conducting such testing would be significant interruptions in electrical service to SCE’s customers and disrupting SCE’s business. The parties should further address whether any modified Current Injection Test (not necessarily premised on the Fall of Potential and Earth Relativity Tests) would be feasible.

(2) Destructive testing of concrete footings at the base of SCE’s electrical towers

The second area of inspection requested by Plaintiffs is destructive testing of concrete footings at the base of SCE’s electrical towers. Specifically, Plaintiffs request to prepare the area surrounding Towers 2-4, 2-5, and 2-6 by excavating a small trench in the soil surrounding each footing and removing surrounding vegetation. [Motion at 4:26-28.] Plaintiffs seek to remove small core samples of the concrete footings of the Origin Tower, and then replace any removed concrete material to ensure the footing is not left with less material. [Motion at 4:28-5:2.] Further, Plaintiffs seek to create small boring holes to allow for probing of the footings for all three Towers, and will refill those holes after the testing is concluded. [Motion at 5:2-3.] Finally, Plaintiffs seek the removal of a small piece of what appears to be leftover rebar that is protruding from the Origin Tower for laboratory testing. [Motion at 5:3-5.]

Stephen Pessiki, PhD, a consultant for the Subrogation Plaintiffs and a Professor of Structural Engineering, further discusses the proposed destructive testing in depth, as follows.

Pessiki declares the removal of the concrete surface samples at footings A and B of towers 2-4, 2- 5, and 2-6 and will be accomplished by using either tape lift-off sampling and/or scraping the surface of the concrete to loosen and capture material. [Pessiki Decl., ¶7.] In order to fully accomplish these tests, where required, Plaintiffs will cut and remove all vegetation up to twelve feet from the exterior surface of each footing of the requisite towers to permit unobstructed access for subsequent inspection and testing with the use of hand tools. [Pessiki Decl., ¶8.]

Pessiki declares that at footings A and B of tower 2-5, Plaintiffs will excavate a shallow trench in the soil surrounding each footing to a depth of twelve inches below the current finished grade or to a depth of up to twelve inches below the bottom of the vertical formed concrete surface (whichever is lower), and to a width of up to eighteen inches from the vertical concrete surface of the foundation. [Pessiki Decl., ¶9.] The excavated soil, Pessiki explains, will be backfilled and any removed material from the drilling or coring of the footing B at Tower 2-5 will be refilled at the conclusion of Plaintiffs’ testing so there is no missing material from the Tower’s footing. [Pessiki Decl., ¶10.]

Soil samples will be retained during the excavation for lab analysis to determine if the soil properties contributed to deterioration of the concrete that is in contact with the soil. [Pessiki Decl., ¶11.] Plaintiffs seek to perform non-destructive hammer sounding and/or rotary percussion wheel survey of the concrete surface to determine if there are areas of delaminated concrete which can be caused by corrosion of the embedded steel reinforcing bars. [Pessiki Decl., ¶11.]

Additionally, Pessiki attests that Plaintiffs seek to perform a borescope inspection of up to six drilled holes on footing B of tower 2-5. [Pessiki Decl., ¶12.] Each drilled hole will measure up to 3/8-inch diameter and up to 18 inches deep. [Id.] Plaintiffs seek to perform this testing to show crack planes and delamination in the concrete of tower 2-5. [Id.] The holes will be drilled using an electric hammer drill and will be flushed with a stream of water to remove drilling debris from the hole prior to borescope inspection. [Id.]

Pessiki declares that each drilled hole will be located using ground penetrating radar (“GPR”) so that the positions of embedded reinforcing bars and anchor rods are located prior to drilling and no reinforcing bars or anchor rods will be damaged while drilling the holes. [Pessiki Decl., ¶14.]

Further, Plaintiffs seek to open up four probes in the concrete surface of tower 2-5 measuring ten by ten inches in area which will extend to the depth of the vertical reinforcing bars to permit inspection of the reinforcing bars and measurements of bar diameters using a concrete cutting wheel and chipping gun. [Pessiki Decl., ¶15.] The probes, Pessiki attests, are necessary to physically measure the concrete cover over the reinforcing bars which is needed to determine the dielectric constant of the concrete for interpretation of the GPR measurements. [Id.] The testing will also allow for Plaintiffs to visually inspect the reinforcing bars for evidence of corrosion and to physically measure reinforcing bar sizes. [Id.]

The probe may be flushed with water to remove dust and cutting debris and the side openings will be tested for their pH using a pH indicator solution to provide indication of the depth of carbonation in the concrete which impacts corrosion of the embedded reinforcing bars. [Pessiki Decl., ¶16.]

Pessiki declares that Plaintiffs also seek to perform a half-cell potential (“HCP”) testing on footing B of tower 2-5 on the surface of the finished concrete and the vertical surfaces that are formed and placed against the soil. [Pessiki Decl., ¶17.] Plaintiffs seek this testing, after the excavation around tower 2-5 as described above, to determine possible corrosion of the embedded steel reinforcing bars in tower 2-5. [Id.] This testing, Pessiki represents, will not be performed if the probes on the concrete surface of tower 2-5 do not show significant evidence of corrosion. [Pessiki Decl., ¶18.] Pessiki declares that if this test is performed, temporary chalking marks may be placed on the footing. [Pessiki Decl., ¶19.]

Plaintiffs also seek to drill four cores from footing B on tower 2-5 for subsequent laboratory testing. [Pessiki Decl., ¶20.] This testing is necessary, Pessiki attests, to determine the composition, condition, and causes for potential deterioration of the concrete in footing B of tower 2-5. [Id.] The drilled core diameters will measure four inches or smaller with a maximum depth of twelve inches from the concrete surface. [Pessiki Decl., ¶21.] The cores will be scanned using GPR so no reinforcing bars or steel anchor rods are damaged during the core drilling. [Pessiki Decl., ¶22.] The cores will be drilled using either a gas-powered or electric-powered core drill mounted to the concrete surface with an anchor bolt. [Pessiki Decl., ¶23.]

Plaintiffs also seek to remove a protruding metal wire from footing B of tower 2-5 for laboratory testing. [Pessiki Decl., ¶24.] This may be performed during the testing utilizing the probes on foot B of tower 2-5 or may be performed separately. [Id.]

In response, Defendant SCE has submitted the Declaration of Carlos Fernandez-Pello, Ph.D., who has been retained as a consultant. Dr. Fernandez-Pello’s understanding is that Plaintiffs allege that an electrical current may have caused the concrete base of Tower 5 to become hot enough that it ignited nearby vegetation. [Fernandez-Pello Decl., ¶4.] Plaintiffs’ proposed surface-level observation and testing of the concrete at Tower 5, Fernandez-Pollo declares, is sufficient to test this theory. [Id.] He attests that when concrete becomes hot—specifically when it reaches approximately 212 degrees Fahrenheit—a phenomenon known as “spalling” occurs. [Id.] Spalling is a term used to describe areas of concrete that have cracked, chipped, flaked, or delaminated from the substrate. [Id.] If the concrete surface became hot enough to ignite a fire, any evidence of that heating would exist on the surface of the concrete. [Id.]

According to Dr. Fernandez-Pello, the presence of spalling does not necessarily show that the concrete did, in fact, reach temperatures high enough to ignite surrounding vegetation. [Fernandez-Pello Decl., ¶5.] He attests that spalling can occur at approximately 212 degrees Fahrenheit, while vegetation will ignite at approximately 662 degrees Fahrenheit. [Id.] Additionally, surface-level spalling may be caused by an external heat source, such as flames from a fire that surround the Tower, rather than an internal heat source, such as the presence of an electric current feeding into the concrete. [Id.]

Dr. Fernandez-Pello declares that the condition of the interior concrete cannot and will not reveal any information about temperature changes of the surface of the concrete. [Fernandez-Pello Decl., ¶6.] Spalling within the concrete footing may indicate that the inner concrete at one time reached temperatures exceeding 212 degrees Fahrenheit. [Id.] But, Dr. Fernandez-Pello attests, any heat generated from within the concrete footing would need to reach the surface of the concrete in order to ignite a fire. [Id.] Spalling at or near the center of the footing does not indicate whether the surface of the concrete ever reached temperatures high enough to ignite vegetation. [Id.]

According to Fernandez-Pello, steel bars, such as the steel reinforcing bars on SCE’s towers, will corrode over time with exposure to air, heat, cold, and other elements. [Fernandez-Pello Decl., ¶7.] He attests that concrete is not a homogenous substance, meaning it is not uniform in composition. [Fernandez-Pello Decl., ¶8.] A sample of a block of concrete will, therefore, not necessarily reflect the same proportions of components as another sample of the same block of concrete. [Id.]

As Fernandez-Pello attests, concrete is porous and has a great ability to hold moisture and allow air flow. [Fernandez-Pello Decl., ¶9.] This means that within concrete, cracks and other imperfections caused by age, water, and temperature changes are to be expected. [Id.] Drilling holes in concrete may exacerbate cracks and non-uniformities. [Id.] Depending on the method and type of boring, drilling into the concrete footing may locally heat the concrete to high enough temperatures to cause spalling. [Id.]

Defendant SCE argues that the Plaintiffs have failed to show good cause for the destructive testing, and that Plaintiff’s theory of transmission is “impossible.” However, the Court finds the proposed destructive testing described by Plaintiffs is reasonably calculated to lead to the discovery of admissible evidence. It is consistent with their claims and theory of the case with respect to how the current was transmitted, and ultimately, how the fire started. As Dr. Pessiki attests in his Reply Declaration: 1) cracking and evidence of moisture movement is relevant to determine the electrical resistance of the structure, which is important to Plaintiff’s causation theories; and 2) the proposed sampling of four concrete cores is in accordance with the applicable ASTM Standards for the examination of hardened concrete. [Pessiki Reply Decl., ¶¶7-8.] And as Dr. Pessiki attests, because concrete is not a homogeneous substance, and Plaintiffs seek to examine a range of conditions in affecting the concrete structures, a minimum of four samples is required in order to account for the range of possible inhomogeneities. [Pessiki Reply Decl., ¶9.]

The Court wishes to underscore that Plaintiffs’ theory need not be factually correct at this time, for purposes of obtaining discovery. The Court’s only concern is whether the discovery sought is reasonably calculated to lead to the discovery of admissible evidence.

The other consideration on the destructive testing, as with the Current Injection Test, is whether the burden, expense, and intrusiveness clearly outweigh the benefits of the destructive testing. In contrast to the Current Injection Test, there is no claim by SCE that such testing would result in a disruption of electrical service or SCE’s related business operations, or would be inordinately expensive. SCE argues that Plaintiffs provide no timeline or method for refilling the concrete holes, and that there are unpredictable effects that boring multiple large holes into the concrete footings will have on the tower. [Opposition at 18:7-11; Howard Decl., ¶12.] The concern is that drilling four 10 x 10 inch holes from the surface of the footing to its center (or even the smaller four-inch and six-inch diameter holes) may exacerbate the cracks and undermine the integrity of the base. [Howard Decl., ¶12; Pello Decl., ¶9.]

While the Court is mindful of these concerns, the burden is still outweighed by the benefits of such testing. As Dr. Pessiki represents, the proposed method is consistent with the ASTM standards for the examination of hardened concrete. [Pessiki Decl., ¶8.] Additionally, the parties will ultimately have to agree on a protocol for the drilling and repair work, including an appropriate schedule and presence of SCE personnel during the extraction and repair. Conceptually, though, the motion directed to the concrete footings is granted.

(3) Penetrative imaging of the concrete footings

The parties largely seem to agree on the penetrative imaging of the concrete footings. SCE argues, though, that the imaging sought is duplicative, overbroad, and unduly burdensome, and that the Court “should limit the duplicative, cumulative, and unnecessary aspects of this testing, including proposed testing at structures that have no relevance to Plaintiffs’ claims.” [Opposition at 19:24-26.] Specifically, the proposed joint inspection protocol seeks four types of penetrative imaging: ground penetrating radar scanning (GPR), ultrasonic shearwave tomography scanning (UT), impact-echo scanning (IE), and ultrasonic pulse velocity scanning (UPV). [Kestenbaum Decl., Exh. G at §8.3.]

With respect to SCE’s argument that the imaging is duplicative, Dr. Pessiki explains that Ground Penetrating Radar (“GPR”) scans are capable of determining the actual location of the reinforcing steel bars embedded within the concrete structures. [Pessiki Reply Decl., ¶10.] However, Pessiki declares that GPR is generally not suitable for detecting narrow cracking in a concrete structure. [Pessiki Reply Decl., ¶11.] For that reason, Plaintiffs propose using one of three stress wave methods which can detect those narrow cracks in the foundations of the Subject Towers. [Pessiki Reply Decl., ¶12.]

Dr. Pessiki declares that each of the three stress wave methods proposed have different use cases depending upon the physical characteristics of the concrete structure. [Pessiki Reply Decl., ¶13.] Importantly, Dr. Pessiki attests that Plaintiffs do not intend to utilize all three methods, but instead to select and utilize the best stress wave imaging technique as determined after on-site observation. [Pessiki Reply Decl., ¶14.] Plaintiffs’ proposed imaging tests are thus non-duplicative, and reasonably calculated to collectively obtain all relevant information obtainable regarding the as-built and asaged physical properties of the Towers’ concrete foundations. [Pessiki Reply Decl., ¶15.]

The Court believes that the parties are generally in agreement on Plaintiffs’ right to conduct the penetrative imaging of the concrete footings. As Dr. Pessiki represents, only one of these methods will ultimately be used after an on-site inspection. With that understanding, the Court finds the motion is well-taken as to the penetrative imaging request, and the motion is granted.