Judge: Mark C. Kim, Case: 19STCV43406, Date: 2022-08-11 Tentative Ruling

Case Number: 19STCV43406    Hearing Date: August 11, 2022    Dept: S27

  1. Background Facts

Plaintiffs, Leslie Sanders, et al. filed this action against Defendants, City of Long Beach and Southern California Edison Company for damages arising out of water damage in Plaintiffs’ condominium building.  The basic facts relating to the damage are not in dispute.  Plaintiffs’ building is adjacent to a water pumping station that is owned by the City.  There was a power outage during a major rain storm, and the pumping station was inoperative for 1.5 hours.  During that time, the water surged into the building, causing serious damage. 


Plaintiffs’ operative complaint is their FAC, filed on 7/15/20.  The complaint includes cases of action for negligence, premises liability, inverse condemnation, public nuisance, private nuisance, trespass, and violation of PUC §2106. 

  1. Motion for Summary Judgment

a.     Parties’ Positions

SCE moves for summary judgment, contending the all causes of action except the inverse condemnation and PUC §2106 causes of action fail because flooding damage was not foreseeable, because Tariff Rule 14 limits its liability for power interruptions, and because it owed not duty to Plaintiffs for damages arising out of an interruption in service.  It contends it is entitled to judgment as a matter of law on the inverse condemnation cause of action because it did not own or operate the pumping station, and because the elements of inverse condemnation are not met. 


Plaintiffs oppose the motion.  They argue SCE is liable on the non-inverse condemnation/PUC causes of action because SCE was the exclusive provider of power for the pumping station, and SCE knew or should have known that extreme damage could be caused if the pumping station did not have power for an extended period of time.  They argue Tariff Rule 14 is not absolute, there was a duty under the circumstances, and their damages were foreseeable.  They argue the inverse condemnation cause of action is premised on SCE’s ownership and operation of the electrical poles and related equipment, and the elements of inverse condemnation are met. 


In reply, SCE contends Plaintiffs’ cited cases actually support SCE’s position, not Plaintiffs’ position.  It argues Plaintiffs have improperly attempted to amend their complaint in response to the summary judgment motion concerning inverse condemnation, and even if they were permitted to do so, the claim would fail under established law. 


b.     Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Code Civ. Proc. §437c(c).)  Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.”  (Id. at §437c(o)(2).)  A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)  Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”  (Ibid.) 


The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. 

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)


Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Leyva v. Garcia (2018) 231 Cal.Rptr.3d. 814, 819-820.


Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)


c.     Initial Note re: Summary Adjudication

Defendant made an alternative motion for summary adjudication.  The motion is not properly noticed and the separate statement does not comply with the Rules of Court.  CRC 3.1350(b) requires the notice of motion to set forth the issues to be adjudicated, and the separate statement to repeat those issues verbatim.  Defendant’s notice of motion simply asks that each cause of action be adjudicated, but does not set forth the causes of action.  Defendant’s separate statement includes thirteen facts, but does not break them down by cause of action and does not attempt to state which facts apply to which cause(s) of action.  Thus, if there are triable issues as to any cause of action, the entire motion will be denied.


d.     Duty and Tariff 14

i.              Statement of the Issue

Because the issues relating to duty and tariff 14 overlap, the Court is considering them together.  SCE argues case law makes clear a public utility has no duty to third parties as a result of a power outage, and also that Tariff 14 codifies this position.  Plaintiffs argue there are exceptions to each of the above general rules, those exceptions are set forth in Langley v. Pacific Gas & Electric Co. (1953) 41 Cal.2d 655, 660-661. 


ii.             Law Governing the Issue

The parties agree on the general principal that the California Public Utilities Commission creates tariffs, and that tariffs have the full force and effect of the law.  Tariff 14 makes clear that SCE is not liable for interruption or shortage of supply, or for any loss or damage occasioned thereby, if such interruption or shortage results from any cause not within SCE’s control.  Similarly, Tariff 2 sets forth voltage expectations, but includes an exception when the voltage cannot be delivered due to temporary actions of the elements, service interruptions, and causes beyond its control, among other exceptions. 


Plaintiffs rely on Langley, supra, to support their position that Tariffs 2 and 14 are not absolute, and that SCE had a duty, under the circumstances, to provide continuous and uninterrupted power to the City and/or to immediately notify the City if there was a power outage so the City could take steps to ensure the pumps were up and running.  In Langley, the plaintiff operated a fish hatchery.  It filed suit against PG&E for breach of contract, contending PG&E agreed to furnish it with power necessary to operate the hatchery, and to give reasonable notice of any suspension of power to it; notably, the plaintiff had alternative mechanisms in place to protect his fish in the event of an outage, but needed notice in order to employ those methods.  The owner of the plaintiff testified, at trial, that he contracted for service in 1947, and at the time he contracted for service, he asked if there would be someone there 24 hours a day to give him notice if there was an outage, and PG&E promised he would be notified; he told the person that he would put in a gasoline pump if he could not be assured he would receive prompt notice.  Id. at 658.  There were two prior outages, and PG&E gave notice each time.  PG&E failed, however, to give the plaintiff notice of a 1951 outage, which lasted approximately five hours in the middle of the night, and the plaintiff lost almost all of his fish.   The crux of the Landley holding, after discussion of the above facts, is as follows (citations omitted):

In the present case it is undisputed that defendant was not responsible for the power failure and that it exercised reasonable diligence to restore service. Accordingly, the question presented is whether on the record before us it could reasonably be concluded that its duty to exercise due care toward plaintiff in the operation of its system required it to give notice of the power failure when it knew that the failure to give notice would result in serious loss. …


In the present case, defendant knew that a continuous supply of electric current to plaintiff was imperative. It knew that it could assure that supply either by furnishing the current itself or by promptly notifying plaintiff of any failure so that he could obtain a substitute supply. Twice, in fact, defendant did notify plaintiff of an interruption in its service. Plaintiff had given defendant his telephone number. The repairman who restored service was called to duty by a night telephone operator at defendant's office. Had that operator been given a list of customers to call in the event of a power failure, the loss to plaintiff would have been averted. Under these circumstances defendant failed to exercise reasonable care toward plaintiff.


Defendant contends, however, that it is physically impossible for it to first ascertain the loss that may occur to each of its million customers in the event of a power failure, and then to take steps, other than diligent efforts to restore service, to diminish or prevent such losses. Defendant is under no duty to do so.  In the absence of knowledge of the particular needs of a customer, a utility is not required to give notice of a power failure. (citations.) If it has such knowledge, it is required only to act in a reasonable manner under the circumstances. It would not be unduly burdensome to a utility, at least in a case where, as here, a telephone operator is on duty and the utility has actual knowledge of the power failure, to require it to make a reasonable effort to give notice to those customers who have informed it that they require notice to prevent serious loss in the event of an interruption in the power supply.


Notably, the plaintiff in Langley sued under a contract theory, but the Court made clear that the duty overlapped between contract and tort, and existed because of notice, not because of a contractual provision per se.  Id. at 662.  Thus, the issue in this case is whether SCE had notice of the unique needs of the City relating to the pumping system. 


iii.            Moving Burden on the Issue

SCE’s fact 13 states, “No one from the City advised SCE before the incident the pumping station required an uninterrupted and consistent flow of electricity.”  SCE supports this fact with the Declaration of Damon Hannaman, ¶¶1-6, and the City’s responses to SCE’s special interrogatories. 


Hannaman is a senior advisor in account management, and declares he is familiar with SCE’s customers’ coordination and interaction with customers, including relating to improving electrical power supply reliability through added facilities known as “Preferred Emergency Gear.”  He declares he was the City’s main point of contact at SCE from 2014 to 2021, and all requests from the City relating to electrical services went through him.  He declares that no one from the City advised him prior to the incident that the pumping station required an uninterrupted and consistent flow of electricity, or that the City was interested in improving the reliability to the pumping station.  He declares that, had someone from the City so advised him, he would have coordinated with the City as he did on prior occasions with respect to other City-owned systems. 


Exhibit B to SCE’s index of exhibits is the City’s responses to SROGs.  SROGs 3 and 4 seek the City’s contentions concerning SCE’s obligation to provide continuous and uninterrupted power to the City’s pumping station; the City responded to each interrogatory stating it was not contending SCE had this knowledge.  SROG 25 asks the City to describe communications between the City and SCE concerning the City’s backup electrical generators, and the City responded that there were no such conversations. 


Plaintiffs, in their response to fact 13, purport to interpose various objections.  CRC 3.1354 requires objections to evidence to be made as a separate document; notably, objections, must be to evidence, not to facts in the separate statement.  Regardless, the objections, if considered, would be overruled.  SCE therefore met its moving burden to show it lacked knowledge that the City needed continuous and uninterrupted power at the pumping station, and therefore the burden shifts to Plaintiffs to raise triable issues of material fact in this regard.


iv.            Shifted Burden on the Issue

Plaintiffs, in opposition to fact 13, cite the deposition of Arthur Cox, pages 27-28, 51-53, 74-75, and 85-86 in an attempt to raise a triable issue of material fact.  Cox’s deposition testimony is attached as Exhibit J to the opposition papers.  Cox works for the City as a special projects officer, and was previously the Public Service Bureau Manager for the Department of Public Works.  Pages 7-8.  At pages 27-28, he testified that it took Mr. Agnello 30 to 45 minutes to get to the pup station, at which time he reported that there was water backing up in the streets as he was getting to the station, and then that he was at the station and the forebay was full.  Cox instructed Agnello to go inside and determine what was offline, and he determined there was no power.  At pages 51-53, Cox testified about documents that detail the tracking of the pumping station throughout the day that it was down.  At 74-75, Cox testified the power outage was at least an hour and a half.  At 85-86, he testified there was a pump station failure at a different station in 2010, and because it was going to be for an extended duration, the City put in a backup generator. 


Nothing in any of the cited testimony shows that the City gave SCE notice of its need for continued and uninterrupted power at the pumping station.  Plaintiffs therefore failed to raise a triable issue of material fact concerning SCE’s duty, as created by Tariffs 2 and 14, to advise its customers when there will be an ongoing power failure. 


e.     Inverse Condemnation and PUC §2106

All causes of action except inverse condemnation and violation of PUC §2106 are covered by the above analysis.  SCE contends the sole remaining cause of action for inverse condemnation fails because (a) it does not own or control the equipment at issue in the FAC, and (b) the elements of inverse condemnation cannot be met in this case. 


The inverse condemnation cause of action is found at ¶¶18 through 27 of the FAC.  At ¶20, Plaintiffs allege Defendants “designed, engineered, installed, constructed, built, used, maintained, inspected, repaired, replaced, managed, owned, and/or operated the water pumps and equipment…”  Similarly, the cause of action for violation of PUC §2106, at ¶62, alleges SCE had a duty to properly design, construct, operate, maintain, inspect, and manage the water pumps. 


SCE argues it does not have any duty relating to the water pumps because it does not own or control the water pumps.  Plaintiffs concede as much in opposition to the motion.  They argue, however, that their claims are premised on “SCE’s ownership and operation of its electrical poles, electrical wires, electrical circuit, electrical transmitter, and design to protect it from foreseeable interference.” 


As SCE correctly notes in reply, the pleadings form the outer measure of materiality in connection with a summary judgment motion.  See Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444.  Plaintiffs’ FAC never mentions electrical poles, wires, circuits, transmitters, or design.  SCE therefore met its moving burden in this regard, and Plaintiffs failed to raise a triable issue of material fact.


f.      Conclusion

Because SCE met its moving burden with respect to the duty-based causes of action, and also the inverse condemnation- and PUC-based causes of action, the motion for summary judgment is granted in its entirety. 


SCE is ordered to give notice.


Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.