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Jane Luciano, Esq. SBN 124263

9000 Crow Canyon Road

Suite S #168

Danville, CA 94506

(925) 216-6030

William McCann, Esq. NV SBN 12038

P.O Box 370

Genoa, NV 89411

Pro Haec Vice in Butte County Superior Court Cases

Attorneys for Plaintiffs and Claimants Liza Sims, individually,

Estate of Edna Gleason and Thomas and Jaydene Gardner

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRIC OF CALIFORNIA

SAN FRANCISCO DIVISION

In re:

PG&E CORPORATION Bankr. Case No: 19-30088 (DM)

Chapter 11

 -and- (Lead Case)

(Jointly Administered)

PACIFIC GAS AND ELECTRIC

OBJECTIIONS OF PLAINTIFFS

COMPANY. AND CLAIMANTS LIZA SIMS,

INDIVIDUALLY AND ON BEHALF

OF THOMAS AND JAYDENE

GARDNER PURSUANT TO PG&E

MOTION TO OBTAIN COVERAGE OF

“CHANNELING INJUNCTION” TO

 DEFEAT PLAINTIFFS VARIOUS 

 CLAIMS FOR PUNITIVE DAMAGES

Debtors (PURSUANT TO LR 9014-1)

(Relates to Dkt 13685, both Liza Sims

X Affects Both Debtors and Thomas and Jaydene Gardner cases)

_______________________________________

Hearing: May 24, 2023

Time: 10:00 AM

Via Tele-video conference

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 I. INTRODUCTION

In the Broadway hit of yesteryear, Man of La Mancha, the guttersnipe girl, who 

has become in Don Quixote’s dreams the lady Dulcinea, asks a simple question: “Why?”

This Court may well ask such a question of these humble Plaintiffs. and their potentially quixotic 

lawyers. 

Because: Plaintiffs’ Objection to this Honorable Court’s “channeling injunction” was forged in 

the fires that cast Plaintiff Liza Sims’ Mother into permanent dementia – instantly – resulting

in a slow painful death. And for which there is no restitution.

Because: the present Objection to this Honorable Court’s “channeling injunction” is morally, 

legally, and ethically justified by the tragic tale of Plaintiffs Jaydene and Thomas Gardner who,

while in flight, watched the firestorm engulf their ‘1960s’ retirement home including the black 

cat clock with tick tock eyes that kept time over the remaining golden days robbed from this 

elderly couple. And for which there is no restitution.

Because: in the prescient words of New York Time’s writers Ivan Penn and Peter Evis: 

“But the relatively small size of PG&E’s financial penalties could rekindle concerns that large

corporations often escape appropriate punishment for their actions.”

(New York Times, PG and E Pleads Guilty to 84 Counts of Manslaughter in Camp Fire Cases,

June 16, 2020.

This remarkable development occurred post PG and E v. The Superior Court of Sacramento 

County,1 In re Nancy Shao Su2, Lockerby v. Sierra3, and, last but not certainly least, Kauaahau

v. Geiger 4

1 24 Cal. App. 5th 1150 (2018) 2 290 F. 3rd 1140 (9th Circuit 2002) 3 535 F. 3rd 1038 (9th Circuit 2008) 4 523 U.S. 557 (1998)

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Because the ‘slap – on – the – wrist’ ‘punishment given PG and E for the causation of 

84 deaths is a mere contrivance to convince the residents of Butte County that PG and E 

has been adequately punished.

Because this smoke and mirrors ploy does not bring resolution for these Plaintiffs, who are not 

about to be bullied by the hundreds of lawyers feeding on the corpses of their dead, wounded, 

maimed relatives and neighbors, so that Plaintiffs’ suffering cannot be used to make a 

difference. Lawyers who, by their machinations on behalf of both fire victims and PG and Epave the way for future disasters.

Plaintiff Liza Sims, on behalf of herself and her mother, and the Gardners, demand

their day in court, before a jury of their peers, to prove that PG and E’s conduct was, 

with respect to causation of the Camp fire, “willful”, “malicious” and or “fraudulent”. 

The Butte County plea bargain was carefully designed to circumscribe any civil liability

for punitive damages in the then existing Chapter 11 proceedings, because 

surprisingly, damages from “recklessness” or “gross negligence” may be discharged in 

bankruptcy. Ordinary folks reading the tabloids don’t realize that.

Unfortunately for PG and E, the Grand Jury findings that gave rise to the indictment trackprecisely- on the doctrine of “willful blindness,” and their battery of criminal law specialists 

could not-nor cannot-get around that. And if a trier of fact finds that PG and E-and or its 

cascading boards of directors—were “willfully blind” during decades or prioritizing profits over 

prudence, then it is subjected to non-dischargeable punitive damages. (See District Attorney of 

Butte County Press release attached as Exhibit “1” referenced in Plaintiffs Request to Take 

Judicial Notice filed concurrently herewith).

Punitive damages – whether arising from any statute or case – are intended to disincentive

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individuals-corporation small or large---utilities, small or large---boards of directors and 

executives (blind or sighted) from engaging in the type of intentional conduct that kills people.

The frustration of the District Attorney who helped craft this plea bargain, Michael Ramsey in 

not being able to take steps to prevent this type of tragedy from happening again, has been 

recently documented:

“But then we get to the Camp Fire, the CEO at that time stood in front of the Judge

and answered 84 times, guilty, your honor, as a picture of the person that they killed.

was shown on a screen. The organization has made a turn, there is no doubt. But it is

a bit like trying to move the Titanic away from that iceberg.” Michael Ramsey,

Butte County District Attorney, interview CAP Radio January 9, 2022.

Unless someone is brave enough to prove the “subjective” intent of this corporation

which is – after all, a person – the residents of Butte County and the people of 

California will continuously be subjected to wildfires caused by a renegade utility’s

multiple, habitual, consistent – and predictable – breaches of the standard of care.

It will be “business as usual” or, as Dulcinea in Man of La Manch so eloquently 

puts it in her sad soliloquy to the fact that nothing changes, It’s All the Same:

 https://www.youtube.com/watch?v=5w7ywCbuXNY

 II. FACTS

A. Plaintiffs Have not Waived nor Will They Waive

Their Claims for Punitive Damages Asserted in the Butte County Superior Court

 Litigations

Liza Sims individually and on behalf of her now deceased Mother

Edna Gleason is Plaintiff in Sims v. PG and E et al No.19CV01700 (Superior Court in and for 

Butte County) (hereinafter ‘the Sims case’)

Thomas and Jaydene Gardner are Plaintiff’s in Gardner v. PG and E et al 

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No. 19CV00379 (Superior Court in and for Butte County)

In both these cases, Plaintiffs’ counsel:

1. Refused to participate in any fire-victim Plaintiff’s cartel that purported to 

‘vote’ for PG and E’s plan of reorganization and

2. Included in the respective Proof of Claims forms filed with the Fire Victim

Trust Exhibits “2” and “3” attached hereto (and labelled Exhibit “A” included with the forms) 

which make it crystal clear to the Trustees of said trust and to defendant PG and E that Plaintiffs

did not – and would not – waive any claims for punitive or exemplary damages under the 

theories advanced in their State Court Cases.

And the Trustee – with the oversight of PG and E – processes these claim forms 

without objection thereto.

(See, Declaration of Jane Luciano in Support of Plaintiffs’ Objection)

 B. Plaintiffs Assert Three Different Statutory Bases Justifying

 an Award of Punitive Damages in Their State Court Cases

1. Plaintiffs asserts that PG and E, over a period of decades, engaged in

“oppression, fraud, and or malice” by failing to maintain its equipment and

failing to mitigate fire dangers associated with vegetation proximate its equipment,

in violation of California Civil Code 3294. Plaintiff asserts and will prove that a corporate 

culture—a sort of AI mens rea, if you will—of placing profits over rate payer safety is 

fraudulent per se. And it is no less fraudulent because it lurks beneath board room confidentiality 

clauses or attorney client privileges.

Plaintiffs will prove that failing to maintain equipment and mitigate fire danger in a community

known by it as the habitation of low-income, elderly, retirees is oppressive. It is oppressive 

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because P G and E knew these rate payers did not have the means, strength, or youthfulness to 

fight back. Plaintiffs can and will prove that. And that such conduct is beyond “recklessness” or 

“gross negligence” and is “willful”. And that the evidence of said “willfulness” is clear and 

convincing.

And that PG and E should therefore pay Plaintiffs a constitutionally sustainable amount of 

punitive damages.

2 Plaintiff Liza Sims on behalf of her deceased Mother alleges that PG and E’s

conduct, above, constitutes ‘financial abuse’ in violation of California Welfare and Institutions 

Code Section 15610.30, which is exacerbated in violation of California Welfare and Institutions 

Code Section 15657.5 (b) as follows:

(b) Where it is proven by a preponderance of the evidence that a defendant is liable for financial

abuse, as defined in Section 15610.30, and where it is proven by clear and convincing evidence

that the defendant has been guilty of recklessness, oppression, fraud, or malice in the 

commission of the abuse, in addition to reasonable attorney’s fees and costs set forth in 

subdivision (a), compensatory damages, and all other remedies otherwise provided by law, the 

limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages 

recoverable shall not apply.

The Bankruptcy Court is asked to consider—carefully—the fact that the standard of proof is 

not clear and convincing evidence, as in California’s general punitive damage statute—but 

beyond a reasonable doubt. Plaintiff Sims believes she can clear that hurdle in proving 

“willfulness.”

3. Plaintiffs will ask a jury of their peers to conclude that PG and E violated Public

Utilities Commission Code 2106 which provides as follows:

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 willful, it may, in addition to 

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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.

(Emphasis added)

It is not particularly surprising to Plaintiff’s counsel that it could not find a single instance

where exemplary damages were awarded under this statute, against a California public utility.

There is something wrong with this picture.

In enacting this statue, the California legislature must have imaged that in vesting a corporate 

entity with virtually unlimited power to use power as both a club and shield, some human beingor group of human beings—might have the subjective intent to use that power in a willful, 

malicious, fraudulent, or oppressive way. So, the Bankruptcy Could should ask itself—was the 

Wizard of Id Right? Is it true that in the Golden State “he who hath the gold maketh the rule?”

Or is it more correct to say, with respect to PG and E: “it that has the lawyers, lobbyists, and golf 

interprets...or has the rules interpreted...to its benefit.”

III. LEGAL ARGUMENT

A. PG and E Offers No Authority or Structural Rationale for Inclusion of Plaintiffs’ 

Punitive Damages Claims in the ‘Channeling Injunction’

PG and E offers no rationale (moral, legal, spiritual, or from a Chapter 11 point of view,

structural)-whatsoever for the imposition of the so called ‘channeling injunction’ upon

Plaintiffs remaining claims.

In coming to this conclusion, Plaintiffs were constrained to study recent bankruptcy cases to 

Determine not only the etiology of this creature, but whether it might apply to their cases.

See ANNUAL SURVEY OF BANKRUPTCY LAW, Part III, Recent Developments, Section

105 (a) of the Bankruptcy Code, by Malhar S. Pagay, Esq.

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One thing is evident: an appellate court, mindful of the restriction that section 105 (a)

cannot trump specific provisions of the Bankruptcy Code, and must be exercised within the 

parameters of the Code itself.

This weighty conclusion is drawn from a Third Circuit Court of Appeals decision dealing with a 

‘channeling injunction” arising from asbestos contamination mass tort litigations, to wit, In re

Combustion Engineering, Inc.,391 F. 3d 190, 236, 43 Bankr. Ct. Dec (CRR) 271,

Bankr. L. rep (CCH) P 80206 (3rd Cir. 2004), as amended, (Feb. 23, 2005) (citation omitted).

So, it seems to this humble scribe that a “channeling injunction” cannot be used to grant—in 

essence—a summary judgment concluding the elements of Section 523 (a) (6) of the Bankruptcy 

Code are not met by these Plaintiffs. Though the 9th Circuit has yet to speak concerning the 

effects of the “channeling injunction” presently in effect in the PG and E fire cases, if we view 

its recent holding in Fireman’s Fund v. Plant Insulation Company (citation not available: See, 

American Bankruptcy Institute Journal, 9th Circuit Reverses 524 (g) Plan Confirmation by

Jacob C. Cohn5) and Jeffrey R. Waxman), we conclude that the 9th Circuit will be ‘fair and 

equitable’ to these Plaintiffs, as well, if the scope of the present injunction divests them of 

substantial rights. Wouldn’t it be special if the 9th Circuit Court of appeals finally rejected plan 

confirmation?

B. PG and E Was, Is and Potentially Will Be: “Willfully Blind.”

5 One of Plaintiff’s lawyers, who works in colder regions, is mystified by the proliferation of the word 

‘fire’ in the present lexicography. For example, Mr. Cohn’s firm owns a federal trademark asserting it has something 

called ‘LEGAL FIRE POWER’. 

See, https://tmsearch.uspto.gov/bin/showfield?f=doc&state=4810:ig7dlv.2.1

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“Willful blindness”6 is a concept existing in the ether between “reckless conduct” and down and 

dirty mens rea. It is recognized by the Supreme Court in Global Tech Appliance v. SEB, 131 S. 

Ct. 2060 (2011). It can be defined as a corporation—through its officers and directors—knowing 

something terribly wrong continually transpires (such as decades long systems neglect and 

failure to remove vegetation which can easily ignite should those systems fail) and doing little- -

or nothing about it. 

Herewith is the citation to the Grand Jury Transcript in the Camp fire Investigation:

 https://interactive.abc10.com/pdfs/KXTV_PGE_Grand_Jury_Binder.pdf

The Transcript would ordinarily be attached as Exhibit “4” to this Objection, but it is massive 

and must be referenced as noted. It is included in Plaintiffs’ Request to Take Judicial Notice.

This set of evidence is massive. But it has been analyzed by Plaintiff’s Nevada counsel William 

D. McCann, Esq. in depth, and it proves that PG and E engaged in a “pattern and practice’ of 

engaging in an anti-safety, pro-profits corporate culture, and shows “subjective intent” by 

continually changing board of directors to intentionally violate Public Utility Commission 

standards of safety and maintenance. (See, Declaration of William D. McCann, Esq. in Support 

of Objection attached hereto). The Grand Jury transcripts shows a decades-long “willful 

blindness” on behalf of PG and E. And “willful blindness”, if found, prevents nondischargability of a punitive damages award against PG and E.

/

/

__________________________

6

 The doctrine of “willful blindness” imputes subjective knowledge of illegal activity to a defendant and is used in

both civil and criminal proceedings as a substitute mental state that fully satisfies a required mens rea of knowledge.

See infra notes 57-64 and accompanying text for an in-depth discussion of the willful blindness doctrine. 

Washington University Law Quarterly 71, page 1199.

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IV. ‘PATTERN AND PRACTION OF WRONGDOING IS EVIDENCE OF

 WILLFULNESS

7

This Court is respectfully asked to review the precedent established in the chestnut

case of TXO Production Company v. Alliance Resources, 131 S Ct 2060 (2011). 

Basically, the Butte County Grand Jury Transcript, the status of PG and E as a probationer 

before the Federal Court for the Norther District of California prior to the Tubbs, Camp, and 

Dixie fires, shows a pattern and practice of wrongdoing (whether civil culpability for the 

respective fires is admitted, or not) which is evidence, per se – of willfulness.

V. INCLUDING PLAITNIFFS’ PUNITIVE DAMAGES CLAIM IN THE 

‘CHANNELING INJUNCTION’ IS DE-FACTO- -AND IMPERMISSIBLE—

 GRANT OF SUMMARY JUDGMENT

Liza Sims and the Gardners are entitled to prove ‘willfulness.’ The California Appeals decision 

in footnote 1 supra, overturned by writ the Butte County Superior Court’s overruling of a 

demurrer filed by PG and E against a potential award of punitive damages. But that ruling 

concerned a different fire than Camp, excluded from its effect claims for punitive damages, 

pursuant to Public Utilities Code Section 2106, and was limited in its effect to a ‘clear and 

convincing’ standard of proof, not the ‘preponderance of evidence’ standard accorded elders who 

have suffered the type of abuse for which PG and E is liable.

California Code of Civil Procedure 437c, Federal Rule of Civil Procedure 56, and Bankruptcy 

Rule 7056 have been interpreted --- uniformly-- to require denial of summary judgment where 

the opponent raises a material issue of fact.

____________________

7

 For the millennials reading this brief, one used to refer to an ‘older’ case as a ‘chestnut-- - i.e., a precedent that 

should be preserved, or perhaps, resurrected in a hope chest.

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“Willfulness” –-or lack thereof – has never been adjudicated with respect to PG and E’s acts and 

omissions relative to the Camp fire. The 9th Circuit panel in in re Nancy Shao Su, cited supra, 

Was apparently of the view that a corporation is not capable of “subject” intent, and, if that is so, 

then punitive damages, as we know them, are dead in the water. But if AI fiendish thingies are 

capable of “subjective” intent as argued in The London Economist (April 22nd-28th 2003),

aren’t boards of directors?

Respectfully. Plaintiffs deserve and herewith solicit their day in court on the issue of punitive 

damages.

May 9, 2023

/s/William D. McCann/s/

William D. McCann

/s/Jane Lujciano/s/

 Jane Luciano

Attorneys for Plaintiffs and Claimants

Liza Sims, Edna Gleason and Thomas

And Jaydene Gardner

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