Preview
Superior Court of California
County of Kern
Bakersfield Department 17
Date: 10/27/2020 Time: 8:30 AM - 12:00 PM
BCV-19-102352
SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA CORPORATION VS STATE OF CALIFORNIA, ACTING BY
AND THROUGH THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, A PUBLIC ENTITY
Courtroom Staff
Honorable: Thomas S. Clark Clerk: Linda K. Hall
Court reporter: . None Bailiff: Deputy Sheriff
Interpreter: Language of:
PARTIES:
Present:
SOUTHERN CALIFORNIA EDISON COMPANY. A JULIE MULLANE Attorney, Present
CALIFORNIA CORPORATION Plaintiff, Not
Present
STATE OF CALIFORNIA, ACTING BY AND EPSTEIN, PAUL C Attorney, Present
THROUGH THE CALIFORNIA DEPARTMENT OF
FORESTRY AND FIRE PROTECTION, A PUBLIC
ENTITY Defendant, Not Present
Not Present:
KRAGER, WAYNE Defendant
Court Call
NATURE OF PROCEEDINGS: DEMURRER
Hearing Start Time: 8:30 AM
The above entitled cause came on regularly on this date and time with parties and/or counsel appearing as
reflected above.
***COURT INFORMS COUNSEL THAT THE COURT WILL NO LONGER HAVE A COURT REPORTER FOR LAW AND
MOTION***
Matter argued by counsel and submitted.
The Court makes the following findings and orders:
Defendant's Demurrer to the Second Amended Complaint - Sustained as to the 1st and 3rd Cause of Action With
MINUTES
Page 1 of 5
SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA BCV-19-102352
CORPORATION VS STATE OF CALIFORNIA, ACTING BY AND THROUGH
THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION,
A PUBLIC ENTITY
Leave to Amend.
Defendant State of California, acting by and through the Department of Forestry and Fire Protection's Demurrer to
the Second Amended Complaint and its first cause of action (Cost of repair pursuant to Public Utilities Code section
7952) and its third cause of action (Property damage for vicarious liability pursuant to Govt. Code section 815.2(a)
and 815.4) is sustained, with leave to amend, for failure to state facts sufficient to constitute a cause of action
against this Defendant. The second cause of action is not alleged against this Defendant was not included in this
Demurrer.
Pursuant to Government Code section 815, a public entity is not liable for any injury except as otherwise provided
by statute. Plaintiff seeks to plead liability pursuant to Public Utilities Code sections 7952, 21404 and 21407.
Defendant State's argument that the State does not come within the definition of a "person" under the Public
Utilities Code has merit.
In addition, Defendant's immunity argument under Government Code section 850.4 has merit. The section states
that "neither a public entity, nor a public employee acting in the scope of his employment, is liable [...] for any
injury caused in fighting fires." While section 850.4 excepts Article 1, Chapter 1, Division 9 of the Vehicle Code,
commencing with section 17000, from its application, a helicopter does not come within the definition of a motor
vehicle under the Vehicle Code.
Even if the public utilities code sections Plaintiff's counsel cites were read to establish a general duty to Plaintiff by
this Defendant, the specific immunity of Govt. Code section 850.4 prevails.
With respect to the specific exception from immunity under the Vehicle Code, a helicopter does not fall under the
definition of a motor vehicle under the Vehicle Code and the court declines to create an exception to section 850.4
immunity pursuant to Public Utilities Code sections 21404 or 21407.
As for liability under Govt. Code section 815.2(a) and 815.4, 815.2(b) specifically states that "[e]xcept as otherwise
provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of
the public entity where the employee is immune from liability." (Gov. Code, 815.2(b)) Further, as noted above,
Govt. Code section 815(b) states that statutory liabilities are subordinated to statutory immunities.
Accordingly, this Defendant's Demurrer to the Second Amended Complaint, specifically to the first and third causes
of action, is sustained, with leave to amend. Although it is not clear to the court that Plaintiff will be able to state a
cause of action against this Defendant, the court will grant Plaintiff another opportunity to attempt to plead
around immunity in order to state a claim. Plaintiff may allege any claim reasonably supported by the facts of the
case in any forthcoming pleading.
Amended pleading to be filed and served by 11/20/2020.
Clerk's minutes will be the order of the court.
Copy of clerk's minutes emailed to all parties as stated on the attached declaration.
Minute order notice.
MINUTES
Page 2 of 5
SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA BCV-19-102352
CORPORATION VS STATE OF CALIFORNIA, ACTING BY AND THROUGH
THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION,
A PUBLIC ENTITY
FUTURE HEARINGS:
January 14, 2021 8:15 AM Case Management Conference
Clark, Thomas S.
Bakersfield Department 17
Sheriff, Deputy
MINUTES FINALIZED BY: LINDA HALL ON: OCTOBER 27, 2020
MINUTES
Page 3 of 5
SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA BCV-19-102352
CORPORATION VS STATE OF CALIFORNIA, ACTING BY AND THROUGH
THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION,
A PUBLIC ENTITY
SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA CORPORATION VS STATE OF
CALIFORNIA, ACTING BY AND THROUGH THE CALIFORNIA DEPARTMENT OF FORESTRY AND
FIRE PROTECTION, A PUBLIC ENTITY
BCV-19-102352
CERTIFICATE OF MAILING and/or email************************
The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California,
in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in
the County of Kern, and not a party to the within action, that I served the Minutes dated October 27, 2020 attached
hereto on all interested parties and any respective counsel of record in the within action by depositing true copies thereof,
enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following
standard Court practices, in the United States mail at Bakersfield California addressed as indicated on the attached
mailing list.
Date of Mailing: October 27, 2020
Place of Mailing: Bakersfield, CA
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Tamarah Harber-Pickens
CLERK OF THE SUPERIOR COURT
Date: October 27, 2020
By:
Linda Hall, Deputy Clerk
Signed: 10/27/2020 10:49 AM
Certificate of Mailing
Page 4 of 5
SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA CORPORATION VS STATE OF
CALIFORNIA, ACTING BY AND THROUGH THE CALIFORNIA DEPARTMENT OF FORESTRY AND
FIRE PROTECTION, A PUBLIC ENTITY
BCV-19-102352
MAILING LIST
JULIE MULLANE PAUL C EPSTEIN
LEVY & NOURAFCHAN LLP OFC ATTORNEY GENERAL
9454 WILSHIRE BLVD #500 300 S SPRING ST
BEVERLY HILLS CA 90212- LOS ANGELES CA 90013
jamullane@yahoo.com Paul.Epstein@doj.ca.gov
Certificate of Mailing
Page 5 of 5
Preview
Superior Court of California County of Kern Bakersfield Department 17 Date: 10/27/2020 Time: 8:30 AM - 12:00 PM BCV-19-102352 SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA CORPORATION VS STATE OF CALIFORNIA, ACTING BY AND THROUGH THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, A PUBLIC ENTITY Courtroom Staff Honorable: Thomas S. Clark Clerk: Linda K. Hall Court reporter: . None Bailiff: Deputy Sheriff Interpreter: Language of: PARTIES: Present: SOUTHERN CALIFORNIA EDISON COMPANY. A JULIE MULLANE Attorney, Present CALIFORNIA CORPORATION Plaintiff, Not Present STATE OF CALIFORNIA, ACTING BY AND EPSTEIN, PAUL C Attorney, Present THROUGH THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, A PUBLIC ENTITY Defendant, Not Present Not Present: KRAGER, WAYNE Defendant Court Call NATURE OF PROCEEDINGS: DEMURRER Hearing Start Time: 8:30 AM The above entitled cause came on regularly on this date and time with parties and/or counsel appearing as reflected above. ***COURT INFORMS COUNSEL THAT THE COURT WILL NO LONGER HAVE A COURT REPORTER FOR LAW AND MOTION*** Matter argued by counsel and submitted. The Court makes the following findings and orders: Defendant's Demurrer to the Second Amended Complaint - Sustained as to the 1st and 3rd Cause of Action With MINUTES Page 1 of 5 SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA BCV-19-102352 CORPORATION VS STATE OF CALIFORNIA, ACTING BY AND THROUGH THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, A PUBLIC ENTITY Leave to Amend. Defendant State of California, acting by and through the Department of Forestry and Fire Protection's Demurrer to the Second Amended Complaint and its first cause of action (Cost of repair pursuant to Public Utilities Code section 7952) and its third cause of action (Property damage for vicarious liability pursuant to Govt. Code section 815.2(a) and 815.4) is sustained, with leave to amend, for failure to state facts sufficient to constitute a cause of action against this Defendant. The second cause of action is not alleged against this Defendant was not included in this Demurrer. Pursuant to Government Code section 815, a public entity is not liable for any injury except as otherwise provided by statute. Plaintiff seeks to plead liability pursuant to Public Utilities Code sections 7952, 21404 and 21407. Defendant State's argument that the State does not come within the definition of a "person" under the Public Utilities Code has merit. In addition, Defendant's immunity argument under Government Code section 850.4 has merit. The section states that "neither a public entity, nor a public employee acting in the scope of his employment, is liable [...] for any injury caused in fighting fires." While section 850.4 excepts Article 1, Chapter 1, Division 9 of the Vehicle Code, commencing with section 17000, from its application, a helicopter does not come within the definition of a motor vehicle under the Vehicle Code. Even if the public utilities code sections Plaintiff's counsel cites were read to establish a general duty to Plaintiff by this Defendant, the specific immunity of Govt. Code section 850.4 prevails. With respect to the specific exception from immunity under the Vehicle Code, a helicopter does not fall under the definition of a motor vehicle under the Vehicle Code and the court declines to create an exception to section 850.4 immunity pursuant to Public Utilities Code sections 21404 or 21407. As for liability under Govt. Code section 815.2(a) and 815.4, 815.2(b) specifically states that "[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." (Gov. Code, 815.2(b)) Further, as noted above, Govt. Code section 815(b) states that statutory liabilities are subordinated to statutory immunities. Accordingly, this Defendant's Demurrer to the Second Amended Complaint, specifically to the first and third causes of action, is sustained, with leave to amend. Although it is not clear to the court that Plaintiff will be able to state a cause of action against this Defendant, the court will grant Plaintiff another opportunity to attempt to plead around immunity in order to state a claim. Plaintiff may allege any claim reasonably supported by the facts of the case in any forthcoming pleading. Amended pleading to be filed and served by 11/20/2020. Clerk's minutes will be the order of the court. Copy of clerk's minutes emailed to all parties as stated on the attached declaration. Minute order notice. MINUTES Page 2 of 5 SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA BCV-19-102352 CORPORATION VS STATE OF CALIFORNIA, ACTING BY AND THROUGH THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, A PUBLIC ENTITY FUTURE HEARINGS: January 14, 2021 8:15 AM Case Management Conference Clark, Thomas S. Bakersfield Department 17 Sheriff, Deputy MINUTES FINALIZED BY: LINDA HALL ON: OCTOBER 27, 2020 MINUTES Page 3 of 5 SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA BCV-19-102352 CORPORATION VS STATE OF CALIFORNIA, ACTING BY AND THROUGH THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, A PUBLIC ENTITY SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA CORPORATION VS STATE OF CALIFORNIA, ACTING BY AND THROUGH THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, A PUBLIC ENTITY BCV-19-102352 CERTIFICATE OF MAILING and/or email************************ The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California, in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in the County of Kern, and not a party to the within action, that I served the Minutes dated October 27, 2020 attached hereto on all interested parties and any respective counsel of record in the within action by depositing true copies thereof, enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following standard Court practices, in the United States mail at Bakersfield California addressed as indicated on the attached mailing list. Date of Mailing: October 27, 2020 Place of Mailing: Bakersfield, CA I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Tamarah Harber-Pickens CLERK OF THE SUPERIOR COURT Date: October 27, 2020 By: Linda Hall, Deputy Clerk Signed: 10/27/2020 10:49 AM Certificate of Mailing Page 4 of 5 SOUTHERN CALIFORNIA EDISON COMPANY. A CALIFORNIA CORPORATION VS STATE OF CALIFORNIA, ACTING BY AND THROUGH THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, A PUBLIC ENTITY BCV-19-102352 MAILING LIST JULIE MULLANE PAUL C EPSTEIN LEVY & NOURAFCHAN LLP OFC ATTORNEY GENERAL 9454 WILSHIRE BLVD #500 300 S SPRING ST BEVERLY HILLS CA 90212- LOS ANGELES CA 90013 jamullane@yahoo.com Paul.Epstein@doj.ca.gov Certificate of Mailing Page 5 of 5