Judge: Lee S. Arian, Case: 23STCV32513, Date: 2025-01-24 Tentative Ruling

Case Number: 23STCV32513    Hearing Date: January 24, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Background

On October 4, 2022, Plaintiff filed this action, alleging that Defendant Trimble failed to stop at the crosswalk and struck Plaintiff, who was riding a bicycle across an intersection at approximately 9:30 p.m. The incident occurred during a planned power outage initiated by Defendant Southern California Edison Company (SCE) to facilitate the replacement of a utility pole, which resulted in all lights at the intersection being turned off. Plaintiff asserts a single cause of action for negligence against SCE.

Defendant SCE now moves for summary judgment, arguing that under White v. Southern California Edison Co. (1994) 25 Cal.App.4th 442 and its progeny, a utility company like SCE does not owe a duty to Plaintiff. Plaintiff has filed an opposition. Trial is set for March 3, 2025.

Legal Standard 

In reviewing a motion for summary judgment or adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿(Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) 

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿(Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)¿A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”¿(Code Civ. Proc., § 437c, subd. (p)(2).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Ibid.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿“If the plaintiff cannot do so, summary judgment should be granted.”¿(Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Undisputed Facts

·        On November 13, 2020, at approximately 9:30 pm, Plaintiff was injured while riding his bicycle westbound on Marine Avenue across the north crosswalk of Crenshaw Boulevard, when he was struck by a vehicle being driven southbound by Defendant Trimble.

·        The intersection at Crenshaw Blvd. and Marine Avenue in the City of Gardena is a four-way intersection.

·        Plaintiff admits that he could see and was aware that the streetlights and traffic signals at the intersection were inoperative before he entered the crosswalk.

·        During deposition, Plaintiff testified that he stopped at the north-east corner of the Subject Intersection and waited up to ten minutes before crossing.

·        Plaintiff’s bicycle was equipped with an electric headlight, and, despite the lack of streetlights, the intersection was illuminated by his bike and by several headlights.

·        Officer Kurtis Gunther, a CHP officer who responded to the incident, testified that there was enough ambient light from surrounding structures and vehicles that the intersection was visible

·        Plaintiff finally began crossing the Subject Intersection when two cars heading southbound on Crenshaw stopped at the north crosswalk, and their drivers gestured for him to cross.

·        SCE is a public utility that generates and provides electricity to customers throughout Southern California.

·        The SCE customer associated with the traffic signals at the Subject Intersection is Los Angeles County Department of Public Works.

·        SCE provides power to the traffic signals at the Subject Intersection by supplying electrical service to its customer of record, Los Angeles County Department of Public Works, and not pursuant to any agreement with individual members of the public such as Plaintiff.

·        SCE provides power to the traffic signals at the Subject Intersection by supplying electrical service to its customer of record, Los Angeles County Department of Public Works, and not pursuant to any agreement with individual members of the public such as Plaintiff.

·        The actual pole replacement work was done by SCE’s contractor, Defendant Hot Line Construction, Inc.

·        Hot Line, in turn, hired Defendant RCS, who set up traffic signs and devices around Hot Line’s work site pursuant to a Los Angeles County permit and traffic control plan

Discussion

Defendant’s core argument in the moving papers is that it does not owe a duty to Plaintiff to provide electricity to the intersection. (Motion at pg. 10.) Defendant cites White v. Southern California Edison Co. (1994) 25 Cal.App.4th 442 and its progeny in support.

First, “a public utility has a general duty to exercise reasonable care in the management of its personal and real property.” (White, supra, 25 Cal.App.4th at p. 447.) A public utility may be liable to individuals injured as a result of its breach of this duty. (Ibid.) For example, a public utility that negligently places a power pole too close to the road may be liable to occupants of a vehicle injured when their vehicle collides with the pole. (Gerberich v. Southern California Edison Co. (1935) 5 Cal.2d 46.) Similarly, a public utility may be liable to an individual injured by a falling light standard. (Erde v. City of Los Angeles (1953) 116 Cal.App.2d 565.) Additionally, a public utility may be liable for failing to use due care in the installation of electric transformation facilities. (See Monroe v. San Joaquin L. P. Corp. (1941) 42 Cal.App.2d 641) (public utility liability when individual suffers injuries from electric shock while working near the facilities).

An exception to this general duty exists in cases involving an interruption of service or failure to provide service. (White, supra, 25 Cal.App.4th at p. 448.) “In the absence of a contract between the utility and the consumer expressly providing for the furnishing of a service for a specific purpose, a public utility owes no duty to a person injured as a result of an interruption of service or a failure to provide service.” (Ibid.) The mere fact that a utility has contracted with a consumer to provide a service for general purposes, such as water or electricity, does not create a duty to a third party. (Niehaus Bros. Co. v. Contra Costa etc. Co. (1911) 159 Cal. 305, 316.) For instance, a water company generally owes no duty to a person whose property is destroyed by fire to supply water for extinguishment. (Niehaus Bros. Co., supra, 159 Cal. at p. 316.)

The rationale behind the exception to the general duty rule has been explained in Niehaus Bros. Co. v. Contra Costa etc. Co. (1911) 159 Cal. 305. In Niehaus Bros., The Supreme Court held that utilities, given their regulated status and the constitutional control over their rates and duties, are not liable merely because they have undertaken to provide services to a municipality and its inhabitants at established rates. (Id. at p. 316.) The court emphasized that while utility rates set by ordinance are presumed to be fair and reasonable, they do not create an obligation for the utility to provide services for a specific purpose, nor do they impose liability for failure to do so. (Id. at p. 317.)

This exception to a utility company’s general duty of care has been reaffirmed in cases following White. In Plattner v. City of Riverside (1999) 69 Cal.App.4th 1441, a pedestrian was struck by a vehicle while crossing a marked crosswalk where the streetlight was inoperative. The court reiterated the long-standing legal principle that municipalities are not required to install or maintain street lighting unless a statutory or charter provision explicitly imposes such a duty. (Id. at p. 1444.) Accordingly, a city's failure to provide street lighting does not constitute a dangerous condition of public property under Government Code section 835.

Defendant Southern California Edison has established that it is a utility company and therefore it has no duty to provide lighting at the intersection in question.

Duty to Implement a Traffic Control Plan

Plaintiff argues that Defendant’s failure to provide electricity is not the sole basis for Plaintiff’s claim. Plaintiff points to the complaint, which alleges that Defendant was negligent in various aspects related to the utility pole replacement project, including Defendant’s failure to implement a temporary traffic control plan, including warnings, roadway markings, signage, and stop signs at the intersection.

Specifically, the Complaint alleges that Defendant and its agents were negligent in their inspection, evaluation, maintenance, and placement of traffic regulatory and warning signs, as well as in their supervision and oversight of others performing these duties. Plaintiff further alleges that Defendant failed to implement a safe temporary traffic control plan during construction, which included the absence of proper roadway markings, warnings, and signs to alert motorists of lane closures, approaching intersections, crosswalks, or disabled signals. Additionally, Plaintiff asserts that Defendant failed to ensure the presence of a traffic director, guard, flagman, or flagger at the intersection of Crenshaw Boulevard and Marine Avenue and neglected to post stop signs or other restrictive signs for southbound traffic before the intersection. These failures, according to Plaintiff, created a hazard to the motoring public and directly contributed to Plaintiff’s injuries and damages. (Complaint ¶ 14.)

The Court would like to hear further argument on this theory of liability.  In particular, the Court would like the parties to address liability under the permit.  In this regard, Plaintiff introduced a permit issued by the County of Los Angeles Department of Public Works to Defendant for the utility pole replacement project, which imposes specific obligations on Defendant. The permit states, in pertinent part, that by performing work under the permit, Defendant agrees to the following terms:

·        “Permitee is hereby permitted to perform the scope of work… subject to all applicable provisions of the County of Los Angeles Highway Permit Ordinance (Division 1 of Title 16, Los Angeles County Code), and/or any municipal code or ordinance governing the area where this work is done.” (Ex. B, pg. 2, ¶ 1.)

·        “Permitee’s activities in connection with this permit are subject to the provisions and conditions contained in this permit and any attachments, which are incorporated herein.” (Ex. B, pg. 2, ¶ 2.)

·        “The permitee shall comply with the provisions of this permit, provisions of Title 16, Division 1 of the Los Angeles County Code.” (Ex. B, pg. 3, ¶ 2.)

Under the section titled "Traffic Control and Access," the permit provides that

·        “[a]ny work which interferes with or endangers the safe movement of traffic shall have the work safeguarded by adequate warning signs, barricades, lights, and devices. The permitee shall be responsible for placing and maintaining adequate warning signs, lights, barricades, and devices during all periods of his activity in order to promote the safe movement of traffic, including but not limited to periods of twilight, nighttime, fog, and/or rain. All warning signs, barriers, barricades, flags, and other devices shall comply with or exceed the standards required in the Vehicle Code.” (Ex. B, pg. 8, ¶ 47.)

·        “[p]ermitee shall maintain traffic flow at all times.” (Ex. B, pg. 8, ¶ 48.)

Moreover, SCE’s Person Most Qualified, Donn James, testified that “If the permit is accepted, Edison has to comply with the terms of that permit.” (James Depo., 25:12-15.)

Why is this permit, requiring SCE to provide a temporary traffic control plan, including warning signs, lights, and barricades, not a basis for this case to be heard by a trier of fact?. While the permit does not expressly specify stop signs as necessary, it unequivocally states: “Any work which interferes with or endangers the safe movement of traffic shall have the work safeguarded by adequate warning signs, barricades, lights, and devices.” (Ex. B, pg. 8, ¶ 47.)   How did SCE meet this requirement?