TENTATIVE RULING

Calendar:    6

Date:          6/7/2024 

Case No: 23 GDCV01378 Trial Date: None Set 

Case Name: Southern California Edison Company v. Fejtek, et al.

MOTION TO STRIKE

Moving Party:            Cross-Defendant Southern California Edison Company

Responding Party: Cross-Complainants Tim Fejtek and Denise Fejtek 

Pleading filed on: 03/14/2024 Motion filed on:  04/16/2024

Pleading served on: 03/14/2024, email within 30 days?: Yes    

Meet and Confer?      Yes 

RELIEF REQUESTED:

CAUSES OF ACTION: from First Amended Cross-Complaint   

1) Inverse Condemnation 

2) Trespass 

3) Nuisance 

4) Public Utilities Code Section 2106

5) Health & Safety Code Section 13007

6) Negligence 

7) Premises Liability 

SUMMARY OF FACTS:

Plaintiff alleges that defendants unsafely operated the subject premises, including the air conditioning units, storage shed, trees and vegetation at the subject premises, which negligence was the proximate cause of damages sustained by plaintiff to its Electric Facilities, rendering defendants liable to Edison for the costs of repairing and replacing the damage to the facilities.   

The complaint alleges that plaintiff has sustained damages in the total sum of $84,225.64 for company and contract labor, materials, and the reasonable costs of repair plus interest at the rate allowed by law, that defendants were invoiced and billed for these damages, and that defendants have failed and refused to pay the sums due and owing to plaintiff.   The complaint alleges causes of action for negligence, cost of repair pursuant to California Public Utilities Code section 7952, and trespass to chattels.       

Defendants Flyingfish Properties, LLC has brought a cross-complaint against its co-defendants Tim Fejtek and Denise Fejtek as cross-defendants for indemnity and contribution, alleging that if plaintiff sustained injuries, it was the direct result of the negligence of cross-defendants, and cross-complainant is entitled to equitable indemnification and equitable contribution. 

Defendants Tim Fejtek and Denise Fejtek have brought a cross-complaint against plaintiff Edison as cross-defendant, alleging that the subject fire started when electrical equipment within Edison’s utility infrastructure contacted, or caused sparks to contact, surrounding vegetation, which occurred because the utility infrastructure was designed and constructed to pass electricity through exposed power lines in vegetated areas, Edison failed to properly inspect, repair, maintain and operate the electrical equipment, and Edison failed to maintain an appropriate clearance between the electrical equipment and surrounding vegetation.  

The First Amended Cross-Complaint alleges that the fire caused cross-complainants to suffer substantial harm, including damage to real property and personal property, including cherished possessions, out-of-pocket expenses, and emotional distress, annoyance, inconvenience, mental anguish, and loss of quiet enjoyment of property.  The cross-complaint alleges that cross-defendant Edison failed to comply with statutes, regulations and standards, and prior to the subject fire was aware of the serious risks posed by their conduct, as Edison had been previously involved in severe wildfires, similarly caused, including the Thomas fire, the Woolsey fire, the Rye fire, the Meyers fire and the Liberty fire. 

ANALYSIS:

Cross-defendant Edison seeks to strike from the FACC filed by cross-complainants Tim Fejtek and Denise Fejtek the prayer for and allegations supporting punitive damages, and allegations cross-defendant characterizes as immaterial and inflammatory.  

Under CCP § 435, a party may serve and file a motion to strike a part of a pleading.  

Under CCP § 436:

“The court may, upon a motion made pursuant to CCP § 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Under CCP § 431.10(c), an “immaterial allegation,” as defined in that section, “means ‘irrelevant matter’ as that term is used in Section 436.”

CCP § 431.10(b) defines an immaterial allegation as follows:

“(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.”  

CCP § 437 provides, it pertinent part:

(a) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”

The process for the trial court in ruling on a motion to strike is summarized by the Second District in Clauson v. Superior Court (1998 2nd Dist.) 67 Cal.App.4th 1253: 

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519, 11 Cal.Rptr.2d 161; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91, 168 Cal.Rptr. 319; see California Judges Benchbook, Civil Proceedings Before Trial (1995) § 12.94, p. 611.)”

Clauson, at 1255.   

Specifically, with respect to the claims for punitive damages, Civil Code § 3294 (a) authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud, or malice…”  “Oppression” is defined to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  Civil Code § 3294 (c)(2).   “Malice” is defined to mean “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  Civil Code § 3294 (c)(a).   

“Despicable” has been defined as a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible”.   College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.  Such conduct has been described as “[having] the character of outrage frequently associated with crime.”  Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894, quotation omitted.  Punitive damages are appropriate if the defendant’s acts are “reprehensible, fraudulent or in blatant violation of law or policy.”  Tomiselli v. Transamerica Insurance Co. (1994) 25 Cal.App.4th 1269, 1287. 

It is held that claims for punitive damages cannot be alleged by conclusory allegations that defendant acted intentionally, willfully or fraudulently.  Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.  It is also held that a punitive damages claim must include factual allegations of wrongful motive, intent, or purpose.  Cyrus v. Haveson (1976, 2nd Dist.) 65 Cal.App.3d 306, 317.  

Cross-defendant argues that in each cause of action in which punitive damages are sought, cross-complainants make the same conclusory allegation that:

“…Cross-Defendants have a history of acting recklessly and with conscious disregard for human life and safety, and such recklessness and conscious disregard of human life and safety was a substantial factor in bringing about this fire.  This is despicable and oppressive conduct. Cross-Complainants thus seek punitive damages in an amount sufficient to punish Cross-Defendants for their long history and continued prioritizing of profits over safety, and to deter such conduct in the future.” 

[FACC ¶¶ 99, 108, 116, 120, 129].

“A preliminary investigation by the Los Angeles County Fire Department determined that the likely cause of the fire was due to arcing power lines dropping embers/sparks onto the property. These sparks or embers were caused by either overloading the poles; not properly maintaining the lines or equipment; overloading power lines and/or circuits; not properly trimming the vegetation and allowing it to come into contact with the exposed power lines; or a combination of the above.” 

[FACC, para. 18]. 

Cross-complainants rely on cases such as Taylor v. Superior Court (1979) 24 Cal.3d 890, in which the California Supreme Court approved an award of punitive damages in a personal injury action against an intoxicated driver, finding that a conscious disregard of the safety of others could constitute malice for purposes of awarding punitive damages:

"[A] conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.   In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences." 

Taylor, at 895 896, citations omitted.

The Court observed:

“One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.”

Taylor, at 896-897.  

Cross-complainants also rely on Perkins v. Superior Court (1981) 117 Cal.App.3d 1, in which the Second District issued a writ of mandate directing a trial court to vacate an order striking plaintiff’s claim for punitive damages, where plaintiff, an attorney with his office telephone service with defendant Pacific Telephone, alleged that after he complained when his telephone number was erroneously listed in defendant’s phone book as that of a chain of auto supply stores, defendant in retaliation for the complaint, caused telephone service to plaintiff’s residence to be terminated, eventually admitting to plaintiff that the service was not out, as previously represented, due to the service being out of repair, but by order of defendant’s business office.  The court found that these were sufficient facts to support the allegation that defendant had been “guilty of oppression, fraud and malice.”   Perkins, at 4-5.   

Cross-complainants also argue that non-intentional conduct can support punitive damages when a party intentionally performs an act which the party knows, or should know, is highly probable to result in harm.  Cross-complainant cites to Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, in which the Second District affirmed a judgment entered against the owner of a convenience store with self-service gasoline pumps, which awarded punitive damages.  In that case, plaintiff had just finished filling her tank with gasoline from the pumps when she slipped and fell, fracturing her ankle.  The court of appeal found that the evidence presented at trial was sufficient to support an award of punitive damages, justifying the jury’s finding of malice, as defendant had demonstrated a conscious disregard of the safety of others.

The facts presented to the jury in that case included the following:

- a defective condition on the nozzle of one of the pumps routinely spilled gasoline over the pump apron and over customers

- store employees requested repair of the nozzle many times

- defendant’s district representative was aware of the overflowing nozzle

- there were two incidents prior to plaintiff’s fall, which the manager had reported to his supervisor

- the response of the supervisor was that there was nothing to worry about, as defendant had a team of successful lawyers to deal with slip and fall cases

- in addition to gasoline spills, there was history of oil spills at the area, as customers could purchase oil but no method was provided for them to transfer the oil to their engines, so customers would use makeshift funnels to do so, consistently leaving oil spills.

- defendant gave no training to employees concerning clean up procedures

- there was no consistent clean-up procedure-- the area was hosed down once a week, and sometimes swept, with no use of solvents or provision of cleaning materials for the task

-the lighting was poor

-prior to the accident, two members of the public had fallen, as well as several employees

- when employees placed warning signs on the pumps, supervisors removed them, citing their makeshift nature ruining the store’s image, but refused requests for an official sign.

- when employees began advising patrons over the loudspeaker of the hazards around the pumps, the supervisor ordered that this practice be terminated. 

Nolin, at 283-284.    

The Second District concluded:

“In the case at bench, we find the evidence amply sufficient to justify the jury’s determination of malice and an award of punitive damages.   As Seimon tells us, ‘most often this element is proven by circumstantial evidence alone.’  (Seimon, supra, 67 Cal.App.3d 600, 607.)  Here, there was considerable evidence, both direct and circumstantial, that a very dangerous condition existed around defendant’s gas pumps; there was dual peril to both customers and employees of fire and slipping and falling.   

 

Defendant’s established inattention to the danger showed a complete lack of concern regarding the harmful potential-- the probability and likelihood of the injury.   The entire nature of defendant’s operation, as it was presented to the jury, reflected defendant’s overriding concern for a minimum-expense operation, regardless of the peril involved.   This concern was evidenced by the method of deployment of clerks, the absence of maintenance personnel, and the absence of necessary equipment for handling oil sold to customers.  The evidence also established that the employees who observed the danger daily communicated it upward to supervisory personnel, but to no avail.”

Nolin, at 288.    

Cross-complainants also argue that in any case, punitive damages are also sought in the cross-complaint under Public Utilities Code Section 2106.

Public Utilities Code § 2016 provides:

“Any public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, any law of this State, or any order or decision of the commission, shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom. If the court finds that the act or omission was wilful, it may, in addition to the actual damages, award exemplary damages. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any corporation or person.

No recovery as provided in this section shall in any manner affect a recovery by the State of the penalties provided in this part or the exercise by the commission of its power to punish for contempt.”

[Emphasis added]. 

The motion to strike on this ground is denied.  

Cross-defendant also argues that the FACC fails to sufficiently allege conduct or ratification on the part of cross-defendant as a corporate entity. 

Civil Code § 3294(b) requires that a plaintiff seeking punitive damages against a corporation must show such wrongful conduct by managing personnel of the corporation:

“An employer shall not be liable for [exemplary]...damages based upon acts of an employee of the employer, unless the employer...ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud or malice.  With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, or ratification of an act of oppression, fraud or malice must be on the part of an officer, director or managing agent of the corporation. “

 Civil Code § 3294(b).  

Cross-defendant argues that the FACC fails to state that an officer or managing agent engaged in or ratified any misconduct and fails to state any person’s name in the cross-complaint.  

The FACC alleges:

“Cross-Defendants, including one or more Edison officers, directors, and/or managers, have willfully, wantonly, deliberately and repeatedly prioritized profits over safety.  That is, Cross-Defendants have a history of acting recklessly and with conscious disregard for human life and safety, and such recklessness and conscious disregard of human life and safety was a substantial factor in bringing about this fire.  This is despicable and oppressive conduct.”  

[Paras. 99, 108, 116, 120, 129]. 

Cross-defendant cites to authority under which allegations may be sufficient where they involve a director, officer, or managing agent who exercises substantial discretionary authority over significant aspects of a corporation’s business and policy.  See CRST, Inc. v. Superior Court (2017, 2nd Dist.) 11 Cal.App. 5th  1255, 1273, citing White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576-577 (requiring that conduct supporting punitive damages be shown on the part of a corporate employee “with substantial discretionary authority over decisions that ultimately determine company policy,” and that “a plaintiff seeking punitive damages would have to show that the employee exercised substantial authority over significant aspects of a corporation’s business.”).   

“The SED determined that Edison needed to make substantial improvements in evaluating the risk of its infrastructure. Id. at 21.  Edisons’ methods of determining risk, ‘underestimate[d] both the frequency and consequence/impact of very low frequency and very high consequence events, such as highly catastrophic wildfires.  This is particularly true where Edison is relying on historical data as a basis for estimating the frequency and consequence of terms.’  Id.  Also, Edison was not able to ‘provide even a qualitative prioritization of its risks.’ Id. at 32.” 

[FACC, para. 85, quoting Arthur O’Donnel, et al., Risk and Safety Aspects of Southern California Edison’s 2018-2020 General Rate Case Application 16-09-0001, 5 Cal. Pub. Util. Comm’n (January 31, 2017); FACC, para. 79]. 

“A plaintiff may satisfy the "managing agent" requirement of Civil Code section 3294, subdivision (b), through evidence showing the information in the possession of the corporation and the structure of management decision-making that permits an inference that the information in fact moved upward to a point where corporate policy was formulated.”

Romo I, at 1140-1141.

Here, as set forth above, the FACC alleges facts which support the allegation that cross-defendant through its responsible managing agents, prioritized profits over safety, as a matter of corporate policy. 

Again, as set forth above, CCP § 431.10(b) defines an immaterial allegation as follows:

“(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.”  

RULING:

Southern California Edison Company’s Motion to Strike Portions from Defendants’ First Amended Cross-Complaint is DENIED.