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MACDONALD | FERNANDEZ LLP

RENO F.R. FERNANDEZ III (SBN 251934)

MATTHEW J. OLSON (SBN 265908)

221 Sansome Street, Third Floor

San Francisco, CA 94104

Telephone: (415) 362-0449

Facsimile: (415) 394-5544

Attorneys for Creditor, WENDY NATHAN

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF CALIFORNIA

In Re:

PG&E CORPORATION

and

PACIFIC GAS AND ELECTRIC 

COMPANY

Debtors.

Affects PG&E Corporation

Affects Pacific Gas and Electric Co.

Affects both Debtors

* All papers shall be filed in Lead Case, 

No. 19-30088-DM

Case Nos. 19-30088-DM-11

19-30089-DM-11

Chapter 11

(Jointly Administered)

DECLARATION OF SETH I. ROSENBERG 

RE: MOTION FOR RELIEF FROM THE 

AUTOMATIC STAY

Date: June 11, 2019

Time: 9:30 a.m.

Place: Courtroom 17

450 Golden Gate Ave., 16th Floor

San Francisco, California

Opposition Deadline: June 6, 2019, 4 p.m. PDT

Hon. Dennis Montali

I, Seth I. Rosenberg, declare:

1. I am over the age of 18, an attorney licensed to practice law in the State of 

California, and a partner with the firm EMERGENT LLP, attorneys for Plaintiff WENDY 

NATHAN. I make this Declaration in support of Creditor Wendy Nathan’s Motion for Relief 

From the Automatic Stay, and if called upon to testify, I could testify competently to the truth of 

the matters set forth herein.

2. Wendy Nathan (“Creditor”) holds a claim against the Estate arising from certain 

personal injuries suffered on September 5, 2015, on the sidewalk in front of Lakeshore Natural

Foods, located at 3321 Lakeshore Avenue, Oakland, California. Specifically, Creditor was 

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injured when she fell because of, among other things, uplifted, raised, cracked, and sloped cement 

caused by the negligent maintenance of the sidewalk and an electrical box installed and controlled 

by Pacific Gas and Electric Company, the Debtor herein (the “Dangerous Condition”).

3. In furtherance of those claims, on August 30, 2017, Creditor commenced an action 

before the Superior Court of California in and for the County of Alameda styled Wendy Nathan v. 

Ann D. Grcevich, Successor Trustee of the Survivor’s Trust, Grcevich Trust dated June 7, 1991; 

Jane Inok Hong; and Pacific Gas and Electric Company. (Case No. RG17873549) (the 

“Complaint”). The First Amended Complaint, a true and correct copy of which is offered as 

Exhibit “A,” asserts claims against the Debtor and other parties for negligence and premises 

liability, and seeks exemplary damages.

4. At least five personal-injury claims have been made regarding the Dangerous 

Condition, including Creditor’s claim. The other four claims were resolved pre-petition wherein

the Debtor, the other defendants, or both compensated claimants (the “Earlier Actions”). 

5. Based on these prior actions, liability is well established in this action and the only 

question is the value of Nathan’s damages. Indeed, in one of the Earlier Actions, the deposition 

of Debtor’s “person most qualified” regarding the Dangerous Condition was cross-noticed for the 

instant action. Thus, essentially no further discovery is necessary against Debtor (except, 

possibly, with respect to co-defendants). Attached as Exhibit “B” is a mediation brief by 

plaintiff’s counsel in an Earlier Action (same counsel as Nathan’s counsel) showing an extensive 

analysis of Debtor’s liability in these actions. In the Earlier Actions, Debtor’s share of the

settlement funds ranged between 85% to 100%. For two of the four Earlier Actions, Debtor paid 

100% of the settlements.

6. Nathan has already been seen by a medical consultant regarding her injuries and a

report on such damages can be made available to Debtor and the other parties after the stay is 

lifted. 

7. Based on the foregoing, at the time of Debtor’s bankruptcy, the parties to this 

action were scheduling a mediation wherein this fifth and final claim would almost assuredly

have been resolved, too. Indeed, more time and expenses would be incurred by attempting to 

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liquidate this claim through the bankruptcy process then would be incurred by the parties’

anticipated mediation that can be done within 60 days of the stay being lifted in the civil action. 

8. The proceedings before the Superior Court had progressed substantially by the 

time Debtor filed its voluntary petition. Various cross- and counterclaims had been asserted 

between the parties and a new third-party defendant (the City of Oakland, California). The 

parties have been conducting discovery and the Court had set the case for trial. A mediation was 

being scheduled by all parties. Motions for summary judgment filed by defendants Hong and 

Grcevich were pending before the petition were pending (and subsequently continued by the

Superior Court in light of the filing of this case). Despite the progress in the case before the 

Superior Court, the Debtor filed this petition before Creditor’s claims could be liquidated. 

Recently, knowing that the present motion would be filed shortly, the Superior Court ordered the 

parties to participate in mediation before August 30, 2019, and set a new trial date for February

21, 2020.

9. Creditor understands that the Debtor does not carry insurance for the claims 

asserted in the Complaint, but rather is self-insured.

I declare under penalty of perjury under the laws of the United States that the foregoing 

statements are true and correct, and that this Declaration was executed on May 15, 2019, in San 

Francisco, California.

/s/ Seth I. Rosenberg

Seth I. Rosenberg

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EXHIBIT A 

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EXHIBIT B 

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Seth I. Rosenberg, Esq. (SBN 215135) 

EMERGENT LLP

535 Mission Street, 14th Floor 

San Francisco, California 94105 

p: 415/894-9284

f: 415/276-8929

e: seth@emergent.law 

Attorneys for Plaintiff 

MARCIA EWING

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

IN AND FOR THE COUNTY OF ALAMEDA 

UNLIMITED JURISDICTION

MARCIA EWING,

Plaintiff, 

v.

PACIFIC GAS & ELECTRIC; LAKESHORE 

NATURAL FOODS; IZEK SALON SPA; CITY 

OF OAKLAND, and DOES 1-50, 

Defendants. 

Case No. RG16-842616

PLAINTIFF MARCIA EWING’S 

MEDIATION BRIEF

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1.

I. INTRODUCTION 

This case concerns a long-standing dangerous condition on a busy Oakland street - 

a sunken/tilted PG&E utility enclosure surrounded by cracked concrete. (Exhibit A.) On 

January 3, 2014, Plaintiff Marcia Ewing tripped and fell over this dangerous condition, 

injuring herself. When settling with PG&E at that time and on her own she thought of 

others, telling PG&E that she would settle for reasonable compensation and “a 

commitment to immediately repair the hazardous sidewalk by your equipment.” 

Not only did Defendant PG&E not live up to that commitment, but over the next 2 

years PG&E, with Defendant City of Oakland, ignored pleadings from injured victims, 

citizens of Oakland, and their own employees to fix this condition. During this 2 years at 

least three other individuals tripped, fell and injured themselves due to this dangerous 

condition. Two of those injured individuals settled bodily injury claims with Defendant 

PG&E and one is still pending. 

Two years removed from her earlier fall with a rare return to this area, Ms. Ewing 

found herself confronted with the unrepaired area. In walking away from the dangerous 

area of the sidewalk she encountered earlier, she encountered a different dangerous area 

of the sidewalk/secondary enclosure, tripped, fell and suffered a catastrophic left humerus 

fracture. Due to the injury, Marcia endured two surgeries, financial hardship from missed 

work, and resulting disability. 

There is little Defendant PG&E can say in this case, especially after recently settling 

with another victim of this sidewalk, where Defendant PG&E paid the victim $120,000 on 

$25,000 in special damages. Ms. Ewing’s special damages are more than 8 times that 

amount. As all recognize or should recognize, Defendant PG&E’s refusal to fix this 

condition over the years while paying claims regarding it, and employees ignoring internal 

directives to fix it (and then PG&E retaining these employees) shows a “conscious 

disregard” for the safety of individuals, thus subjecting it to punitive damages. 

Defendants only possible defense argument, Ms. Ewing’s comparative negligence, 

will fall on deaf ears in front of an Alameda jury. Putting aside that Ms. Ewing asked 

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2.

Defendant PG&E to fix it, which it refused, Ms. Ewing is a fantastic Plaintiff – an 

endearing, compassionate, self-made woman who a jury will adore. Moreover, Plaintiff 

did not trip over the same dangerous condition twice; she tried to avoid the earlier 

dangerous condition and tripped over another dangerous condition involving the same 

secondary enclosure. 

As will be shown, the facts of this case paint a terribly ugly picture for Defendants 

and Plaintiff looks forward to trying to reasonably resolve this dispute at mediation. 

II. STATEMENT OF FACTS

A. PLAINTIFF MARCIA EWING

Plaintiff Marcia Ewing is an extremely pleasant and intelligent 63-year-old woman. 

(Exhibit B.) Born in Panama, Marcia emigrated to the United States at 5 years old. A selfmade woman, Marcia obtained a license as a vocational nurse. For the majority of her 

career, Marcia worked at Kaiser over a 17-year career, where she was a research clinic 

coordinator and eventually a project coordinator. As a project manager, Marcia managed 

a team of Kaiser employees regarding research data collection. Marcia took an early 

retirement from Kaiser, took a six-month break, and then went right back to work for 

UCSF as an analyst. She has also raised two successful children one of which, her 

daughter, a successful attorney in New York City. 

B. THE DANGEROUS CONDITION BEGINS 

In 2008, the City of Oakland began receiving requests to repair the sidewalk 

outside 3321 Lakeshore. On March 5, 2008 the following complaint was received by the 

City of Oakland: “3/5/08 REQUEST FOR SIDEWALK INSPECTION IT LIFTS UP WHEN 

YOU WALK ON IT AT 3321 LAKESHORE · SERIOUS HAZARD LOT OF CITIZENS WALK 

THERE FROM PARKING LOT.” On August 8, 2008, the Oakland Police Department 

complained as noted in this complaint: “8/18/08 OPD IS REQUESTING THAT THIS 

SIDEWALK BE CHECKED AS SOON AS POSSIBLE. IT IS A BAD TRIPPING HAZARD.” 

(Exhibit C.) 

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3.

C. PLAINTIFF’S FIRST ENCOUNTER WITH THE DANGEROUS 

CONDITION 

Back in and around 2013, Marcia began going to Defendant Izek Day Salon (“Izek”) 

a couple times a month for her nails. She would normally park right in front of the store 

and go right in. Marcia believes that she “maybe once or twice” walked through the area 

where the utility enclosure in question, which is a little east of the store. One of those 

times, on January 3, 2014, Ms. Ewing left Izek to go to AT&T to pay a bill. When 

returning, traveling west (i.e., toward Izek) her foot hit the eastern side of the utility 

enclosure, which was substantially elevated from the adjacent sidewalk, and she launched 

forward with her chin bearing the brunt of her fall. (Exhibit D.) Marcia actually lacerated 

her chin requiring stitches. At that time an Izek employee commented to Marcia how she, 

too, had tripped on the area and knew others had as well. 

In response to this incident, Marcia called PG&E because “it was a hazardous area 

and [she] hurt [herself].” Marcia also made a complaint to the City of Oakland which is 

documented as follows:

By WONG, JASON: 1/3/2014 2:33:00 PM 

CITIZEN REPORTING A SIDEWALK DAMAGED BY TREE ROOTS, 

AT 3319 LAKESHORE AVE. 

Caller: EWING, MARCIA:

Q: Is there a tree nearby with roots that may be the cause? 

A:YES

Q: Has anyone been hurt by it? 

A:YES

Q: Please describe the precise location (e.g., next to the bus bench) 

A: IN FRONT OF 3319 LAKESHORE AVE.,, IN FRONT OF IZEK 

SALON (Exhibit E.) 

Initially, PG&E denied the claim saying it was not their responsibility. PG&E went 

so far as to state in correspondence to Marcia that “the PG&E electrical enclosure

involved in your incident is level with the sidewalk and is not a hazard.” 

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4.

(Exhibit F.). But then PG&E changed their position, collected Marcia’s medical bills, and 

attempted to negotiate a settlement. 

Prior to the execution of the release, Marcia sent an email to PG&E employee 

Michael Seawell which said: “Can the settlement amount be $6980.20 that will include 

past and future medical and a commitment to immediately repair the hazardous sidewalk 

by your equipment?” (Exhibit G.) Mr. Seawell obviously received this email as the 

eventual Release was for precisely Marcia’s requested amount. (Exhibit H.) Two terrible 

facts for Defendant PG&E flow from this email: (1) Defendant PG&E did not repair the 

condition as Marcia requested; and (2) Marcia’s email, though obviously received, was not 

in Defendant PG&E’s document production in this action. The former led to at least four 

more injury accidents that could have been avoided, and the latter establishes that 

Marcia’s email was internally destroyed by Defendant PG&E. 

D. THE NEXT 2 YEARS DOCUMENT DEFENDANT PG&E AND CITY 

OF OAKLAND OPENLY IGNORING THE DANGEROUS 

CONDITION AND AT LEAST THREE MORE INJURED PEOPLE 

No one disputes that Plaintiff’s condition to settle her claim – repair of the 

dangerous condition – was ignored. Photographs of the condition from the time of 

Plaintiff’s January 3, 2014 until its repair show a completely unchanged dangerous 

condition. The following also evidences the ongoing complaints received and ignored 

about the dangerous condition. 

By CHUONG, LINDA 9/10/2014 9:25:05 AM 

BUILDING OWNER IS REPORTING CITY TREE ROOT HAS 

DAMAGED THE SIDEWALK, AND TREE ROOT IS 

AFFECTING THE SEWER PIPE LINE AND FOUNDATION TO THE 

BUILDING STRUCTURE AT 3321-3331

LAKESHORE AV. PER OWNER IS REQUESTING FOR AN 

ASSESSMENT ON THE CITY TREE. 

Caller: HONG, STEVE: 

Q: Is there a tree nearby with roots that may be the cause? 

AYES

Q: Has anyone been hurt by it? 

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5.

ANO

Q: Please describe the precise location (e.g", next to the bus bench) 

A ON THE SIDEWALK 

* * *

By SMITH, GERALD D: 9/11/2014 9:05 03AM 

There is an official liquidambar tree fronting this address" Some 

lifting by tree roots some damage not root related (attached). Spoke with 

property owner and explained claims process for alleged sewer and 

foundation issues.

Caller: DRAKE, PAMELA 

Q: Is there a tree nearby with roots that may be the cause? 

A: Don't Know/ No Answer 

Q: Has anyone been hurt by it? 

A: Don't Know/ No Answer 

Q: Please describe the precise location (e.g., next to the bus bench) 

A: 3321 LAKESHORE AVE. (Exhibit I.) 

Then on July 9, 2015, Cynthia Dias, encountered the dangerous condition, tripped 

and fell, and injured herself. Due to her fall, Ms. Dias injured her lip and left upper 

extremity. Defendant PG&E ended up settling Ms. Dias’ injury claim for $750. (Exhibit 

J.) Like Marcia, Ms. Dias complained to both the City of Oakland and PG&E. Her 

complaint to the City of Oakland was as follows: 

Q&A & Comments:

By WONG, JASON: 7/9/2015 2:39:30 PM 

CITIZEN REPORTING AN UNEVEN UTILITY COVER, AT 3321 

LAKESHORE AVE. 

In response, the City of Oakland advised PG&E about their utility box: 

By SIBLEY, CARL: 7/9/2015 6:41:13 PM 

Sent email to PG&E supervisor C. Brown and E. Wright to investigate 

for safe sidewalk over the uneven PG&E electrical service box, also call PG&E 

call center for investigation. (Exhibit K). 

True to his word, Mr. Sibley sent an email to PG&E employees Chris Brown and 

Eric Wright on July 9, 2015 (along with Ms. Dias) where he said the following: “Hi 

Christen, Eric, Can you have AJW smooth out the uneven PG&E electrical SB in sidewalk 

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6.

fronting 3321 Lakeshore Ave., also the citizen complaint for the slippery metal gas 

enclosure lid cover fronting same address? Attached picture for your review. Carl Sibley.” 

Mr. Brown and Mr. Wright ignored this request. (Exhibit L). 

On August 18, 2015, Ms. Dias forwarded the just-mentioned email to Defendant 

PG&E Claims Investigator Ricky Harris. (Exhibit L) In response, Mr. Harris sent an email 

request to Mr. Brown (who ignored the first request) the same day and said: “Hi Chris, I 

just met with the customer who tripped and fell at this location [3321 Lakeshore]. Can we 

get someone out asap to make this area safe? The customer made mention that she was 

surprised that this hasn't been fixed since someone has already been injured here. 

Thanks! Ricky.” Mr. Brown responded: “Thank you for bringing this to my attention. I 

will address this ASAP.” Mr. Brown did not address this ASAP or ever. (Exhibit M.) He 

ignored this email, too, thereby ignoring a second request to fix this dangerous condition. 

On September 19, 2015, Defendant PG&E employee Kim Damico, a Supervisor in 

PG&E’s Law Department sent an email to Mr. Harris saying: “Working on file reviews. A 

little behind as you will see. Would you please follow up or swing by to confirm the area, in 

the above claim, has been made safe [3321 Lakeshore]. In response, Mr. Harris sent 

another email to Mr. Brown (who ignored the first two requests) on October 8, 2016, with 

“Importance: High,” stating: “I went by this location per my Supervisor's request and 

noted that no repairs have been done to this location. Can we get someone to go out to 

this location and take care of this asap.” (Exhibit N.) There is no evidence of Mr. Brown 

ever responding to this email. It is also undisputed that for a third time, Mr. Brown 

openly ignored a request to fix the dangerous condition at issue. 

Sadly, while Defendant PG&E and the City of Oakland was doing nothing to repair 

this condition and, in fact, openly ignoring multiple external and internal requests to fix 

this condition, more people were being injured. On September 5, 2015, Wendy Nathan 

was visiting Oakland for the weekend with family to attend an A’s game. She tripped and 

fell over the dangerous condition, suffering numerous fractured teeth requiring extensive 

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7.

oral surgery and orthodontic care and treatment.1 On October 12, 2015, Joanne Massimo, 

visiting from New York, tripped and fell over the dangerous condition as well, suffering a 

right distal radius fracture. These are just the victims we know about. 

E. PLAINTIFF’S NEXT ENCOUNTER WITH THE DANGEROUS 

CONDITION 

Shortly after her prior fall, Marcia stopped going to Izek and almost never visited 

Lakeshore Avenue in the following years. She does not recall actually traversing or seeing 

the area of her prior fall into her later fall on December 5, 2015. On December 5, 2015, 

two years after her prior fall, she went to Lakeshore Avenue to get a gift wrapped for a 

shower at Papyrus. As she approached the area of her prior fall from a different direction, 

she realized this was the area of her prior fall. In an attempt to be safe, she started walking 

away from the area where she tripped and fell. Sadly and ironically, this led her to a 

different, unseen aspect of the dangerous condition – a height differential between the 

recessed southern side of the utility enclosure when compared to the adjacent sidewalk. 

(Exhibit O.) Previously, she had encountered the raised eastern side of the utility 

enclosure. 

She lost her footing when her foot straddled this height differential, stumbled and 

fell. A witness later provided a “pictorial” progression for Plaintiff’s counsel as to exactly 

what happened. (Exhibit P.) 

In her deposition, Ms. Ewing also gave the following testimony: 

Q. When you were walking and approaching the area where you had 

fallen, did you have an expectation at that time that PG & E had made the 

repairs that you had requested of them? 

A. Yes.

In her fall, Marcia landed on her left arm causing severe injuries. She was 

transported via ambulance to Kaiser-Oakland not long after her fall. 

F. PLAINTIFF’S INJURIES AND DAMAGES 

 

1 Ms. Ewing’s counsel represents Ms. Nathan as well. 

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8.

Marica arrived at the Kaiser-Oakland ER at 12:40 p.m. and it was noted: “Patient 

tripped on uneven pavement near Lake Merritt, fell onto left arm. Instant pain and bone 

cracking at left elbow.” It was soon determined that Marcia suffered a left supracondylar 

humeral fracture, which is a common injury suffered from falls where the individual tries 

to break their fall with their hand. (Exhibit Q.)

Due to the nature and severity of the injury, Marcia was admitted to the hospital on 

December 5, had surgery on December 6, and was discharged on December 7. The surgery 

entailed open reduction and internal fixation (“ORIF”) of the fractured humerus, which 

required two plates internally fixated with 15 screws. Upon discharge, Marcia left 

with her arm splinted and it remained that way for months. (Exhibit R). 

In her follow up appointments, Marcia complained of weakness in her left hand and 

numbness in her fifth finger. Upon physical examination, decrease in sensation in her left 

fourth and fifth fingers was confirmed. The doctors then diagnosed Marcia with nerve 

palsy in addition to her ORIF. In addition, the doctors were concerned about the potential 

for additional factures in the area due to osteoporosis. During this time, her worst pain 

was documented at being 5-6 out of 10. 

Before the fall, Marcia was taking care of her elderly mother in the home who had 

broken her collarbone in 2014. Unfortunately, due to her injuries, Marcia could not even 

take care of herself much less her mother. Accordingly, Marcia hired help. This help 

actually needed to help dress and shower Marcia for months because she could not do it 

herself. The help needed to cook meals for Marcia and her mom, now. Marcia paid this 

help $15 an hour, for 4-5 hours a day, for six days a week. This arrangement lasted until 

mid-March, when Marcia could at least drive to some extent. At that point the help went 

down to 5 days a week. 

On March 1, 2016, it was noted she had discontinued the arm brace she had been 

using for the past three months, but that “[s]he continues to experience left 5th finger 

numbness and decreased fine motor function to the left hand.” She was unable to cross 

her fingers at this time. 

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9.

On March 11, 2016, Kaiser performed a nerve conduction study on Marcia. The 

medical record regarding that study states: 

INTERPRETATION: Severe changes in ulnar nerve conduction noted with 

minimal motor response recorded over the right abductor digiti minimi and 

severe denervation seen in ulnar innervate hand muscles on needle EMG. 

Basically there is no motor unit recruitment in ulnar muscles. Overall, this is 

consistent with severe ulnar neuropathy, localization uncertain, but elbow 

most likely. 

A mild focal median sensory nerve conduction abnormality is also present at 

the left wrist. (Exhibit S.)

As is clear from Marcia’s records, including her physical therapy records, after the 

surgery and up to this date she had limited to no fine motor function in her left hand. This 

lack of use of her left hand made her unable to meet the responsibilities of her job, which 

included consistent typing. 

Due to this severe ulnar neuropathy and being symptomatic due to the hardware, 

Marcia underwent surgery regarding these issues on May 3, 2016. Specifically, Kaiser 

performed a left ulnar nerve transposition and removed her internal hardware. 

After the surgery, Marcia was once again in a sling which she had just ended using 

two months earlier. On May 12, 2016, she was informed about the “potentially lengthy 

time for return of nerve function.” At that time, her pain was at a 5 out of 10. She was 

then re-prescribed physical therapy. In fact, at her initial physical therapy post-surgery 

she reported more pain than she had pre-surgery and her fourth and fifth fingers in her 

left hand were stiff and painful. 

Once more, Marcia was dependent on outside care for help. She again needed to 

hire help for 5 days a week, which continued until July 2016. At that time, Marcia could 

basically care for herself and was able to arrange with Alameda County for care for her 

mother. 

Regardless, throughout this time, Marcia could not easily cook and could not do her 

housework at all. She had ongoing weakness and numbness in her left hand and could 

hardly carry anything more than a few pounds. 

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Marcia continued to present to doctors with limited left hand function throughout 

the rest of the year at physical therapy and doctor appointments. However, by the 

beginning of the year she was capable of doing her prior work at UCSF and UCSF had an 

opening for her starting in February 2017. 

As of July 11, 2017, Marcia was still experiencing “dysesthesias into the ulnar aspect 

over fingers and hand [and also] has some weakness.” On physical examination, 

decreased sensation on the digits was noted as well as a positive Tinel’s sign at the elbow. 

At that time, the doctor noted numerous medical modalities that could be considered 

going forward such as “injections and re-exploration.” Marcia decided to continue 

observation for the time. (Exhibit T.) 

Possibly the most devastating aspect of this injury was that 2016 was the last year of 

Marcia’s mother’s life, who died on October 1, 2016. The final window of quality time 

Marcia could have spent with her mother was ruined by Marcia’s injuries. 

G. TIM BEDFORD TESTIMONY 

Tim Bedford (“Bedford”), Defendant PG&E’s Senior Manager of Compliance, 

testified that secondary enclosures, such as the enclosure at issue, is “patrolled” by 

Defendant PG&E annually. A separate patrol of secondary enclosures (along with a more 

detailed inspection of other structures) occurs every three years. A patrol of secondary 

enclosures is to look for “obvious structural problems and hazards,” which includes 

tripping hazards. This is an entirely subjective process where the patrolman is to consider 

“exposure” (i.e., in an urban vs. rural setting; in a sidewalk vs. behind a fence) and 

“likelihood” of harm. While those considerations are important, Defendant PG&E does 

not provide its patrolmen with any claims/injury history regarding enclosures to be 

inspected on a patrol (e.g, that there had been multiple complaints and injuries regarding 

the enclosure at issue). Moreover, there is no standard in how to “patrol” secondary 

enclosures like the one at issue. For instance, it is possible that the patrolman just drove 

by and looked at the secondary enclosure out a window. 

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When noticing a height differential between a secondary enclosure and the adjacent 

concrete, there is no set standard to determine a “hazard.” That being said, Bedford 

admitted that when you get to around an inch it could be concerning. In this case, the 

height differential between the utility enclosure and the adjacent sidewalk on the east 

(first fall) and southern (second fall) were each approximately an inch. 

Bedford admitted that if a patrolman held any concern about the potentially 

hazardous nature of a secondary enclosure, he or she had numerous options to remedy the 

situation, which would include: (1) applying a “cold patch” to remedy any height 

differential issues; (2) putting a safety cone near it; (3) spray painting the edges of the 

offending enclosure for higher visibility (though PG&E does not do this); (4) reporting it 

internally to have it repaired by others; and (5) reporting it to a third party that may be 

responsible, such as the City of Oakland. Bedford also admitted that patrolmen have 

phones and iPads to take pictures of concerning enclosures so they can show others to get 

advice. In fact, Bedford says PG&E employees do this daily. Moreover, Bedford admitted 

that upon review of photographs of the enclosure, its condition was unchanged from 2014 

through 2016. 

Accordingly, while the secondary enclosure was eventually repaired by Defendant 

PG&E in 2017, and its condition had remained unchanged for at the previous three years, 

Defendant PG&E’s patrolmen took none of the aforementioned remedial (or even 

potentially remediable actions) over the annual patrols in the preceding three years. 

When confronted with the various ignored internal PG&E emails asking for the area 

to be repaired, Bedford admitted he had no idea why these repeated requests went 

unheeded. Even in the face of these emails, Bedford would not say that the area should 

have been repaired, only that it should have been “checked out.” 

Eventually, after another complaint about the dangerous condition of the utility 

enclosure in May 2017, Defendant PG&E finally repaired the condition. The repair work 

took a total of 10 man hours. There is no evidence that Defendant PG&E needed or 

requested permission from the City of Oakland or others to perform the repairs. Bedford 

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admitted the bulk of the repairs, cold patching around the utility enclosure, cost between 

$0-$10,000. Bedford then admitted the obvious: Defendant PG&E had the financial 

resources to absorb this financial hit and the resources to complete the repairs in 2014, 

2015, or 2016. 

III. LIABILITY

A. DEFENDANT PG&E AND/OR THE CITY OF OAKLAND ARE 

LIABLE FOR MARCIA’S INJURIES AND DAMAGES 

It is axiomatic that an entity must reasonably maintain property it owns, occupies 

or controls. Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162. More specifically, one who owns 

or controls land “is under a duty to exercise ordinary care in the management of such 

premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to 

fulfill this duty is negligence.” Brooks v. Eugene Burger Management Corp. (1989) 215 

Cal.App.3d 1161, 1619. 

Initially, Defendants PG&E and City of Oakland both control the area in question. 

There is no doubt that the City of Oakland owns the area of sidewalk at issue and, 

therefore, had an obligation to maintain it in a safe condition.2 However, it is also clear 

that Defendant PG&E had a property interest in its utility enclosure in the sidewalk. 

Further, Defendant PG&E obviously controlled this area of sidewalk because by all 

accounts it repaired the entire area in 2017 without City of Oakland approval or 

permission. 

Moreover, it is unquestioned that not only was the area dangerous, but both entities 

had notice of the dangerous condition. Without belaboring the point, at least two sides of 

the secondary enclosure had approximately 1-inch height differentials with the adjacent 

concrete, there were a multitude of citizen complaints regarding this area going back a 

decade, and between 2014-2016 there were at least 5 trip and fall incidents resulting in 

 

2 There is a dispute as whether the City of Oakland can or has foisted its responsibility 

upon the adjoining landowners, Defendants Lakeshore Natural Foods and the Grcevich 

Trust. Plaintiff will leave that issue for Defendants to address. 

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injury with 3 resulting in over $140,000 in bodily injury settlements. One cannot paint a 

better picture of a dangerous condition and actual notice. There can be no reasonable 

dispute that Defendants PG&E and City of Oakland are liable to Ms. Ewing. 

B. MARCIA EWING IS NOT COMPARATIVELY NEGLIGENT

As a starting point, Marcia Ewing made a condition to her prior settlement that 

Defendant PG&E fix this condition. It refused to do so. In that light, Defendant PG&E 

claiming that Ms. Ewing is liable for Defendant PG&E failing to abide by a prior promise 

and its legal obligation to keep the area safe is unsympathetic to say the least. 

Moreover, it is not even the case that Ms. Ewing encountered the same dangerous 

condition; she encountered a different dangerous condition trying to avoid the earlier 

dangerous condition. Two years removed from her prior fall and with no exposure to the 

area in the interim, Marcia realized where she was on December 5, 2015, saw the prior 

dangerous condition which caused her to fall (the raised eastern edge) and she moved 

away from that. Sadly, doing so led her to the unseen, raised southern edge of the 

secondary enclosure, which caused her to lose her footing and fall. She did not trip and 

fall over the same condition but a different one. 

Finally, Marcia is a self-made, successful, hard-working, sweet and kind AfricanAmerican woman. She has raised two successful children and is a long-time Oakland 

resident. When she was injured on January 3, 2014, her words and actions showed that 

she was more worried about her fellow citizens than herself in demanding that Defendant 

PG&E fix the area as a condition to her settlement. With that in mind, to the extent that 

Defendants claim an Alameda jury will put considerable or any comparative negligence on 

Ms. Ewing, there is only one response: good luck. 

C. DEFENDANT PG&E WILL BE HELD LIABLE FOR PUNITIVE 

DAMAGES 

Defendant PG&E simply cannot avoid punitive damages in this case. As has long 

been the law, “conscious disregard of safety [is] an appropriate description of the 

animalus malus which may justify an exemplary damage when nondeliberate injury is 

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alleged.” G.D. Searle & Co. v. Sup. Ct. (1975) 49 Cal.App.3d 22, 32; Taylor v. Superior 

Court (1979) 24 Cal.3d 890, 895. Defendant PG&E’s “conscious disregard of safety” 

permeates this case. Defendant PG&E knew about the dangerousness of this condition 

when it paid Ms. Ewing over $6,900 from her 2014 trip and fall. When demanded to fix it 

at that time, it refused. Not only that, Defendant PG&E internally destroyed Ms. 

Ewing’s email demanding its commitment to fix the sidewalk. 

After Cynthia Dias bore the brunt of Defendant PG&E’s disregard for her safety, the 

City of Oakland demanded Defendant PG&E (send the request PG&E employees Chris 

Brown and Eric Wright) fix this condition on July 9, 2015 (cc’ing Ms Dias on the email). 

The PG&E employees ignored this request. 

Ms. Dias, like Ms. Ewing, trying to help her fellow citizens, forwarded this email to 

the PG&E adjuster that had worked her claim, Ricky Harris. That same day, August 18, 

2015, Mr. Harris specifically asked Mr. Brown to fix the area “asap.” Mr. Brown 

responded by saying he would do so. However, knowing that Mr. Brown had initially 

ignored the July 9, 2015 email to fix the area, Mr. Harris did not check to see if Mr. Brown 

actually followed his request. Of course, Mr. Brown ignored this request, too. 

This time Wendy Nathan bore the brunt of Defendant PG&E’s absolute aversion to 

acting reasonably when she tripped and fell over this area on September 5, 2015. She 

fractured multiple teeth and has incurred tens of thousands of dollars in medical care, 

accordingly. 

Then on September 19, 2015, a Supervisor in PG&E’s Law Department sent an 

email to Mr. Harris telling him to make sure the area was safe. On October 8, Mr. Harris 

once again – this time with “Importance – High” – told Mr. Brown again to fix this 

condition. This time the directive came from two levels above Mr. Brown. Not only did 

Mr. Brown ignore this request, he did not even respond. No one checked to see if the work 

was done and it was not. In fact, Mr. Brown (nor Mr. Harris) was not fired or even 

punished for his willful refusal to obey repair directives. 

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Four days after the October 8 email demanding immediate repair of this condition, 

Joanne Massimo tripped and fell over the dangerous condition and suffered a distal radius 

fracture. Two months after that, Ms. Ewing had her fall with absolutely catastrophic 

results. To put this in context, Bedford admitted that PG&E could have repaired this 

condition at any time for less than $10,000.00.

This is the epitome of conscious disregard for the safety of others. Beyond its 

corporate malfeasance, the willful disregard exhibited by Mr. Brown, Mr. Wright and Mr. 

Harris were ratified. Defendant PG&E knew of this conduct and took no action against 

any of its employees. Ventura v. ABM Industries, Inc. (2012) 212 Cal.App.4th 258, 272 

(ratification can be shown by an employer’s failure to discharge an employee after 

committing misconduct). While not necessary to point out in light of these facts, it is fair 

to say that an Alameda jury will not be giving Defendant PG&E any “benefit of the doubt” 

in light of Defendant PG&E’s current reputation in California. 

D. THERE IS ALREADY A “BELLWETHER” SETTLEMENT IN PLACE 

 Recently, most of the defendants in this case mediated the case involving Joanne 

Massimo, who also injured herself via this sidewalk. Ms. Massimo incurred $25,000 in 

Howell specials and settled her case for $120,000 from Defendant PG&E and $15,000 

from other defendants. This establishes a potential specials-to-value ratio and Defendant 

PG&E’s liability. It also establishes Defendant PG&E’s validation of the punitive damages 

claim. Personal-injury attorneys do not often see 4x specials in total compensatory 

damages on a fracture with little to no residuals. The settlement in the Massimo case thus 

seemingly reflects an inclusion of punitive damages. 

E. MS. EWING’S HAS SUBSTANTIAL SPECIAL DAMAGES, 

INCLUDING FUTURE MEDICAL COSTS 

Marcia’s medical care at Kaiser for her injuries is valued at $162,827.753. (Exhibit 

U.) Separately, Marcia was unable to work from December 2015 to January 2017, as 

 

3 This includes the Kaiser lien plus co-pays. 

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documented. As she was making $3,792.00 a month, her wage loss during that time was 

$45,504.00. A rough calculation of the cost of home-health care Marcia needed while 

recovering is $5,000.00. 

Separately, Plaintiff’s consultant, Dr. Thomas Sampson, has examined Marcia, 

reviewed the relevant records, and provided opinions. Dr. Sampson opines regarding two 

areas of concern: (1) residual issues and disability with respect to her left hand; and (2) 

documented carpal tunnel in her right hand, post-injury, as a result of favoring her right 

hand. (Exhibits V and W.) The latter anticipated necessary care– a carpal tunnel release 

procedure – was performed by Kaiser after Dr. Sampson’s most recent report lending 

validity to his opinions. 

For the former, Dr. Sampson opines that she should undergo a revision ulnar nerve 

neurolysis, the cost of which is approximately $25,000. Indeed, the potential need for 

this surgery was mentioned by Marcia’s Kaiser doctor when he mentioned “reexploration.” The last procedure kept Marcia out of work for nine months. Assuming she 

has the procedure while still employed, her wage loss would be approximately 

$34,128.00. 

Accordingly, Marcia’s total economic harm due to this accident is between 

$238,331.75 and $272,459.75 depending on whether future procedures will entail 

wage loss or not. 

IV. CONCLUSION

Based on the strength of Plaintiff’s liability case, the catastrophic damages suffered, 

and the guarantee of punitive damages, Plaintiff demands $1,850,000 to resolve this 

case. 

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17.

Dated: September 25, 2018 Respectfully submitted,

By:

Seth I. Rosenberg 

EMERGENT LLP

Attorneys for Plaintiff MARCIA EWING

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