Judge Upinder S. Kalra, Case 22STCV39189 2023-04-14 Tentative Ruling

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CASE NAME: Southern California Edison Company v. Nasa Services, Inc., et al.

On December 16, 2022, Plaintiff Southern California Edison Company (“Plaintiff”) filed a complaint against Defendants Nasa Services, Inc., and Bonfiacio Garcia (“Defendants.”) The complaint alleges four causes of action: (1) Property Damage for Negligence, (2) Trespass to Chattels, (3) Cost of Repair under California Public Utilities Code § 7952, and (4) Damages under California Public Utilities Code § 7951. The complaint alleges that Defendants, while operating a trash truck, struck and damaged Plaintiff’s electrical facility. Defendants failed to stop and left the scene of the incident.

On February 6, 2023, Defendants Nasa Services, Inc., and Bonfiacio Garcia filed a Demurrer without a Motion to Strike. Plaintiff’s Opposition was filed on February 23, 2023. Defendants’ Reply was filed on March 1, 2023.[1]

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn 147 Cal.App.4th at 747.)

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). In the Declaration of Marlon D’Oyen, counsel sent a meet and confer correspondence to Plaintiff’s counsel regarding the Complaint and Demurrer. The parties were unable to resolve the issues raised in that written correspondence. (Dec. D’Oyen ¶ 2-3.)

Defendants demur on the grounds that the fourth cause of action fails to state sufficient facts to constitute a cause of action.

Defendant argues that the Complaint does not provide any facts that apply to this specific cause of action. There are no facts pled to establish that Defendants acted wilfully or maliciously prior to the incident.

Plaintiff argues that the fourth cause of action sufficiently alleges a violation of Public Utility Code § 7951. Specifically, Plaintiff argues that Defendants knew of the “existence and location of plaintiff’s SCE facility which was open and obvious and wilfully and maliciously caused their truck to strike said facility and then left the scene of the incident in violation of California Vehicle Code § 2002(a).” (Opp. 6: 21-24, Complaint ¶ 19.)

California Public Utility Code § 7951 states: “Any person who wilfully and maliciously does any injury to telegraph or telephone or electric power or gas property is liable to the corporation for three times the amount of actual damages sustained thereby, to be recovered in any court of competent jurisdiction.”

The Court finds that the Complaint fails to state sufficient facts to constitute a cause of action for a Violation of Cal. Pub. Util. Code, § 7951. According to Black’s Law Dictionary, malicious is defined as either (1) Substantially certain to cause injury or (2) Without just cause or excuse. Willful is defined as “voluntary and intentional, but not necessarily malicious.” Black’s Law Dictionary further states, “A voluntary act becomes willful, in law, only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong.” Here, Plaintiff has only pleaded conclusory statements, simply alleging that Defendants acted maliciously and willfully when they allegedly struck the electric pole and left. There are no facts to suggest that Defendants knowingly and intentionally decided to strike the pole and leave the scene of the incident. As the Complaint states, Defendants were driving a large trash truck, Defendant had knowledge of the facility and “willfully and maliciously caused the trash truck to strike said facility” and leave. (Comp. ¶ 19.) Knowledge of presence alone does not establish willfulness and malice. No facts are alleged to support these conclusion.[2] This is insufficient to constitute willfully and malicious conduct.

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.) The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). It is likely that Plaintiff may be able to amend the pleading, to either allege sufficient facts to or plead a different cause of action, such as Public Utility Code § 7952.

[1] It looks as though after this matter was continued on March 21, 2023, Plaintiff resubmitted their Opposition on April 3, 2023, and Defendant resubmitted their Reply.

[2]Plaintiff does include additional facts in their opposition that were noticeably absent from the complaint. But even of the existence of a video that records the incident does not alone establish the missing crucial elements. Description of the surrounding events are still lacking.