Judge: Keri G. Katz, Case: 37-2022-00049007-CU-PO-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 16, 2023

11/17/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00049007-CU-PO-CTL SAN DIEGO GAS & ELECTRIC COMPANY VS JK COMMUNICATIONS AND CONSTRUCTION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant JK Communications and Construction, Inc. dba Kleven Construction's motion to strike portions of Plaintiff's complaint is DENIED.

The court finds the complaint alleges facts sufficient to support a finding that Kleven Construction 'wilfully and maliciously' injured SDG&E property so as to allow for the imposition of treble damages under Public Utility Code § 7951 [Cplt. ¶¶ 35-49]. The court is not persuaded by Kleven Construction's reliance on standards applicable to pleading claims for punitive damages and for pleading claims under the Elder and Dependent Adult Civil Protection Act [Welfare & Institutions Code § 15600]. None of the authorities Kleven Construction relies on applies these standards to a Public Utility Code § 7951 cause of action. Moreover, the court finds allegations that Kleven Construction observed SDG&E's markings on the surface above SDG&E's 'ELECTRIC FACLITY', knew of the hand tool requirements of Government Code § 4216, et seq. and failed to excavate using hand tools, sufficient to support a finding of malice as defined in CC § 3294(c)(1) ['. . . despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others']. The specificity Kleven Construction seeks, including as to the 'precise location marked and the precise location excavated in relation to the markings' is more properly the subject of discovery. See, Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.

Kleven Construction shall answer with 10 days of this ruling.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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