EXHIBIT A

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ENDORSED 

JUN 2 2 2017 

eputy Clerk 

SUPERIOR COURT OF CALIFORN �---i.....=...--,..__ ___ -1-'

COUNTY OF SACRAMENTO 

Case No.: JCCP 4853 

BUTTE FIRE CASES 

RULING ON SUBMITTED MATTER: 

INVERSE CONDEMNATION MOTIONS 

On June 16, 2017, hearing was held on the court's tentative ruling on the competing 

motions seeking seek a legal determination on whether Pacific Gas and Electric Company 

("PG&E") is liable for inverse condemnation for damages caused by the Butte Fire. The parties 

appeared and presented oral argument, after which the court took the motions under submission. 

The court, having fully considered the arguments of all parties, both written and oral, as 

well as the evidence submitted, now affirms its tentative ruling, as supplemented concerning the 

court's discussion of causation, as follows: 

Plaintiffs and defendants, PG&E and Pacific Gas and Electric Corporation, bring 

competing motions pursuant to Code of Civil Procedure section 1260.040, seeking a legal 

determination whether PG&E is liable for inverse condemnation for damages caused by the 

Butte Fire. For the reasons set forth below, the court grants Plaintiffs' motion as to PG&E, 

denies Plaintiffs' motion as to Pacific Gas & Electric Corporation, and denies PG&E's motion. 

The court finds PG&E may be held liable for inverse condemnation under California law 

even though it is a privately owned public utility. The court further finds, based upon the 

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admissible evidentiary record, the Butte Fire was caused by a public improvement as deliberately 

designed and constructed by PG&E. 

I. 

Preliminary Matters 

A. Code of Civil Procedure section 1260.040

Plaintiffs allege several causes of action against PG&E relating to the Butte Fire, 

including inverse condemnation pursuant to Article I, section 19, of the California Constitution. 

(Individual Plaintiffs' Master Complaint 411411 51-58.) 

The parties agree the court has authority pursuant to Code of Civil Procedure 

section1260.0401 to rule upon the question of liability for inverse condemnation presented by 

their competing motions. (PG&E, Memo. ISO Motion for Legal Determination of Inverse 

Condemnation Liability ["PG&E MPA"], p. 3:18-4:20; Plaintiffs' Memo. ISO Motion for 

Determination of Inverse Condemnation Liability ["Plaintiffs' MPA"], p. 7: 10-8:3.) 

Section 1260.040(a) provides if there is "a dispute between plaintiff and defendant over an 

evidentiary or other legal issue affecting the determination of compensation, either party may 

move the court for a ruling on the issue .... " Subdivision (c) states it "supplements, and does not 

replace any other pretrial or trial procedure otherwise available to resolve an evidentiary or other 

legal issue affecting the determination of compensation." 

The court may determine the legal issue of liability pursuant to the procedures set forth in 

section 1260.040. (Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029.) 

Specifically, a party may move for a ruling on liability because that is a legal issue affecting the 

determination of compensation. The Court in Dina construed section 1260.040 broadly as 

1 All statutory references are to the Code of Civil Procedure, unless otherwise indicated. 

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consistent with the Legislative purpose to "facilitate resolution of condemnation cases without 

trial." (Id. at 1043.) The Court characterized section 1260.040 as "a powerful statute, unique to 

eminent domain law, which allows evidentiary issues and issues affecting compensation to be 

adjudicated by motion." (Id. at pp. 1043-1044.) 

The Court in Dina analogized section 1260.040's proceedings as similar to a motion for a 

nonsuit, which may be granted "only when, disregarding conflicting evidence, viewing the record 

in the light most favorable to the plaintiff and indulging in every legitimate inference which may 

be drawn from the evidence, it determines there is no substantial evidence to support a judgment 

in the plaintiffs favor." (Id. at 1047.) Applying that stringent standard of review, the Court 

concluded the trial court properly ruled the evidence offered by plaintiffs was insufficient to 

support their claims. 

Here the parties' competing motions on liability are more akin to motions for summary 

adjudication than a motion for nonsuit or judgment on the pleadings. Although the parties have 

not adhered to the procedural requirements of a motion for summary adjudication under section 

437c, they acknowledge the court may reach the issue of liability through this special eminent 

domain law procedure based upon their evidentiary record. 

B. PG&E and the Pacific Gas and Electric Corporation

PG&E's Opposition to Plaintiffs' motion contends the motion does not clearly indicate 

whether it is brought against the Pacific Gas & Electric Corporation in addition to PG&E the 

utility entity. PG&E argues Plaintiffs failed to meet their burden as to the Pacific Gas & Electric 

Corporation (a private corporation), because there is no evidence the Pacific Gas & Electric 

Corporation is a public entity that can be liable for inverse condemnation, citing Bach v. County 

of Butte (1989) 215 Cal. App. 3d 294, 306-307 (1989). PG&E asserts the Pacific Gas & Electric 

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Corporation neither owns nor operates any electrical transmission and distribution facilities. 

(PG&E Opp., p. 1, fn 1.) Plaintiffs produce no evidence to the contrary. 

PG&E's position appears correct. Accordingly, the court's finding of inverse 

condemnation liability extends to the public utility entity, PG&E. 

C. Damage Stipulation

For purposes of these competing motions, to expedite the court's determination of 

Plaintiffs' inverse condemnation claim alleged through their Master Motion, the parties agreed to 

avoid the necessity of individual declarations of damages for each moving plaintiff. Instead, the 

parties agreed only those plaintiffs scheduled for the initial trial commencing August 11, 2017, 

would submit evidence their property was damaged in the Butte Fire: Plaintiffs Larry and Karen 

Carr, Florencio and Martha Garcia, Robert and Barbara Garibaldi, Edward and Laura Miser, 

Ronald and Darunee Rogers, and Barbara Rose (collectively "August 11th Plaintiffs"). These 

damage declarations have been submitted. 

The parties further stipulated if the court determines PG&E is liable for inverse 

condemnation, this determination will be binding as between PG&E and all Moving Plaintiffs 

presently in the Coordination Proceeding. The August 11th Plaintiffs would still have to prove 

the amount of their damages, and the remaining Moving Plaintiffs would have to prove both that 

their property was damaged in the Butte Fire and the amount of such damages. 

The court has accepted the parties' stipulation as described above and will execute the 

order accompanying the stipulation. 

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D. Judicial Notice

Plaintiffs filed a Request for Judicial Notice asking the court take judicial notice of the 

deed for the power line right-of-way on the Kirk property in Amador County dated September 2, 

1902, recorded in Book 23 of Deeds, page 564, Amador County Records, a copy of which is 

attached to the request as Exhibit 1. Plaintiffs' request is made upon the ground judicial notice of 

deeds is proper under Evidence Code section 452, subdivisions (c) and (h). This includes the 

existence of the recorded document, as well as the truth of the facts recited in it. (Scott v. 

JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754-761.) 

The request is granted. 

Plaintiffs additionally request the court take judicial notice of pleadings PG&E filed in 

other, unrelated cases which also involved the issue of inverse condemnation. These filings are 

irrelevant, and thus that request is denied. 

E. Evidentiary Objections

1. Plaintiffs' Objections

Plaintiffs interposed 94 objections to the evidence initially submitted by PG&E in support 

of its motion. Plaintiffs also objected to the supplemental declaration of Mari Henderson filed 

June 2, 2017. 

a) Mari Henderson Declaration

Plaintiffs object the Henderson declaration was not timely served, as required by sections 

1005 and 1010, and therefore consideration of the late declaration would violate Plaintiffs' right 

to due process, citing San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal. 

App. 4th 308,316. Plaintiffs liken the competing motions brought here under section 1260.040 

as motions for summary adjudication, and therefore contend late submission of this substantial 

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evidence denied them the right to be fully advised of the issues to be addressed and to be given 

adequate notice of what facts they must rebut to prevail. 

Although a motion under section 1260.040 is not subject to the specific procedural 

requirements of section 437c, or California Rules of Court, rule 3.1350, the general demands of 

due process and fair notice underlying those procedures do apply with equal force to this special 

motion. Accordingly, the objection to the late declaration is sustained. 

b) Amended Objection Nos. 1-94

Plaintiffs' evidentiary objections are ruled upon as follows: Sustained as to Objection Nos. 

1-74, 76-85, 87-94. Overruled as to Objection Nos. 75 and 86.

2. PG&E's Objections

PG&E interposed five evidentiary objections to Plaintiffs' evidence. 

a) Cal Fire Report

PG&E first objects to the California Department of Forestry and Fire Protection 

Investigation Report, Case Number 15CA-AEU-00249918 ("Cal Fire Report") submitted as Exh. 

A to the Simon Declaration. PG&E argues the Cal Fire Report constitutes inadmissible hearsay, 

citing Box v. Cal. Date Growers Ass'n (1976) 57 Cal. App. 3d 266, 270-71. PG&E contends the 

Cal Fire Report does not meet the requirements of the hearsay exception for a record by a public 

employee (Evid. Code§ 1280) because: (1) Cal Fire Battalion Chief Gianni Muschetto signed his 

report on April 25, 2016, more than seven months after the fire on September 9, 2015; (2) the 

sources of information, and the method and time of preparation do not indicate trustworthiness 

because the Cal Fire Report relies extensively on hearsay statements of others; and (3) the report 

consists of expressions of opinion and conclusions which do not come within the public records 

exception. 

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Plaintiffs argue PG&E's objections should be overruled because: (1) PG&E admitted in 

four separate discovery responses the Butte Fire was caused by contact between its line and a tree 

as concluded by the Cal Fire Report; (2) PG&E itself referenced and relied upon the Cal Fire 

Report in the Woodyard and Kennedy Declarations PG&E submitted in support of its Motion for 

a Legal Determination of Inverse Condemnation Liability; and (3) the report satisfies the public 

employee record exception in Evidence Code section 1280 because the report was made at or 

near the time of the act, condition, or event despite its final publication, and the report is not 

comprised of hearsay or opinions. 

PG&E's objection is sustained. PG&E's discovery responses, particularly its admissions, 

may constitute evidence supporting the evidentiary facts Plaintiffs seek to establish here with the 

Cal Fire Report. But PG&E's discovery responses do not convert the Cal Fire Report itself into 

admissible evidence. For purposes of these motions, the court does not find the Cal Fire Report 

is subject to the public employee record exception under Evidence Code section 1280. 

b) Arborist Report

PG&E similarly objects to Michael T. Mahoney's Arborist Report: Butte Fire Incident 

("Arborist Report") on the same grounds: It is inadmissible hearsay. Plaintiffs give the same 

response. The court makes the same ruling: The objection is sustained. 

c) Testimony of Mahoney, Cole and Felling

PG&E's objections as to the testimony of Mahoney, Cole and Felling, are overruled 

II. 

The Material Facts 

The court finds the following facts: 

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A. PG&E is a public utility

PG&E is a privately-owned public utility providing natural gas and electric service 

throughout a 70,000-square-mile service area statewide, comprising nearly 135,000 miles of 

overhead powerlines. (Tankersley Deel. i]3.) 

B. The Butte Fire was caused by contact between a tree and PG&E's power line

As to evidence of the cause of the Butte Fire, Plaintiffs rely in substantial part upon the 

testimony of Mark J. Felling, Michael T. Cole, Michael Mahoney, PG&E's discovery responses 

and the absence of controverting evidence. 

Mark J. Felling is a registered professional electrical engineer who has observed, 

investigated and reported on numerous fires involving contact between energized power lines 

and vegetation in his fifty-year career. In this case Felling inspected the power line, vegetation 

and other environmental influences in the area of origin of the Butte Fire. He also reviewed 

pertinent documents, photographs and reports. (Felling Dec., ,i,i 1-8.) In his declaration Felling 

states, "[T]here are no other plausible explanations for the damage exhibited by the Subject 

Conductor and the Subject Tree other than direct mutual contact" and that contact ignited the 

Butte Fire. (Felling Dec., ,i,i 8-15.) 

Michael T. Cole spent 37 years with Cal Fire, and has a private career spanning 10 years 

as a fire investigation consultant and licensed/certified fire investigator. Cole also determined 

the Butte Fire was caused by the "Subject Tree" making contact with the "Subject Conductor" 

and first igniting the Butte Fire. (Cole Dec., ,i,i 1-10.) 

PG&E produced no evidence contradicting the findings of Felling or Cole as to the cause 

of the Butte Fire. Just the opposite. PG&E admitted in at least four discovery responses that 

contact between a tree and its lines was "a cause" of the Butte Fire. 

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First, PG&E responded to Plaintiffs' Special Interrogatory No. 17 in part as follows: "At 

this time, PG&E does not contend that tree-line contact was not a cause of the fire. PG&E 

accepts Cal Fire's finding that a tree made contact with a power line, but PG&E does not believe 

it is clear what caused the tree to fail." (Simon Dec., 1 10, Ex.I.) 

Second, PG&E stated it "accepts and admits the Cal Fire report's finding that the tree 

described by Plaintiffs as the Subject Tree made contact with a power line .... " (Simon Dec., 19, 

Ex. H, pp. 2:12-13, 23-25; 3:3-5, 18-20.) 

Third, PG&E stated it "does not contend that tree-line contact was not a cause of the fire." 

(Simon Dec., 111, Ex. J.) 

Finally, and most clearly, PG&E stated, "PG&E accepts Cal Fire's finding that a tree 

made contact with a power line and that tree-line contact was a cause of the fire." (Simon Dec., 1 

10, Ex. I, p. 20:6-8.) 

Accordingly, for purposes of these motions, the court finds Plaintiffs established a tree 

made contact with PG&E's power line, and that contact was a cause of the Butte fire. 

C. PG&E constructed, maintained and operated the power line

PG&E admits it had an easement on the Kirk property for its Electra 110 I Circuit. (Simon 

Dec., 112, Ex. K, RFA No. 113.) 

The original deed for the power line right-of-way on the Kirk property was recorded in 

1902. That instrument, dated September 2, 1902, recorded in Book 23 of Deeds, page 564, 

Amador County Records, calls for a forty (40) foot right-of-way, twenty (20) feet on each side of 

the centerline of poles. 

The deed requires PG&E "to cut down and keep clear said lands of brush and trees, a 

distance of twenty (20) feet on each side of said centerline of poles, also to cut down any trees 

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standing outside of said twenty (20) foot limit on each side of said centerline of poles that may 

endanger said line of poles and wires." (Curtis Dec., ,i,i 3 & 4; Plaintiffs' Request for Judicial 

Notice, Ex. 1 [l 902 deed granting right-of-way].) 

PG&E admits the Butte Fire originated on a PG&E right-of-way on the Kirk property. 

(Simon Dec., ,i 12, Ex. K, RFA Nos. 112 and 114; ,i 14, Ex. M, p. 40:8-15; ,i 15, Ex. N;and ,i 16, 

Ex. 0, pp. 12:12-17, 14:7-19, 14:24-25, 18:6-8, 21:17-25, 54:19-55:6.) 

PG&E admits it owns the utility poles on the Electra 1101 circuit that crossed the 

property, and it operated and maintained the Electra 1101 circuit. PG&E also admits it 

determined the placement and configuration of the utility poles on the Electra 1101 circuit that 

crossed the property. (Simon Dec., ,i 17, Ex. P highlighted portions on pp. 3-5.) And PG&E 

admits it installed the conductors and power poles on the Kirk property. (Simon Dec., ,i 12, Ex. 

K, RFA Nos. 117 and 118.) 

PG&E identified on its pole-mapping diagram when it constructed each pole in and 

around the area of the fire's origin. Pole #099651, Object ID #13632446, was installed by 

PG&E in 1963. This was the pole immediately to the east of the area of the fire's origin. A pole 

without a number, but bearing Object ID # 13632919, was also installed by PG&E in 1963. This 

pole was immediately to the west of the area of the fire's origin. The Electra substation splits into 

two circuits, Electra 1101 and Electra 1102. (Simon Dec., ,i 22, Ex. U, p. 50:24-51:6.) 

PG&E's "Unplanned Outage Report" for the loss of electricity due to the Butte Fire shows 

3,643 customers on these circuits. (Simon Dec., ,i,i 21 & 22, Ex. T, and Ex. U, p. 176:14-18.) 

III. 

Analysis and Decision 

PG&E succinctly frames the core questions presented by these competing motions: First, 

should this court find PG&E, a privately-owned public utility, to be subject to inverse 

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condemnation liability? Second, was the Butte Fire caused by a public improvement as 

deliberately designed and constructed? (PG&E, MPA, p. 5:2-6.) 

The court concludes the answer to both is yes. 

A. A Privately-Owned Public Utility May Be Liable For Inverse Condemnation

1) Private Utilities

California courts have long found public and quasi-public entities responsible for damages 

under inverse condemnation. (See, e.g., Eachus v. Los Angeles Consolidated Elec. Ry. Co. (1894) 

103 Cal. 614 [ railroad liable for cutting off access to a public road.].) 

Courts have repeatedly classified utilities as "public entities." (Barham v. Southern Cal. 

Edison Co. (1999) 74 Cal. App. 4th 744, 752 (1999); Gay Law Students Assn. v. Pac Tel. & Tel. 

Co. (1979) 24 Cal. 3d 458,470; Pac. Bell Tel. Co. v. Pac. Gas and Electric Co. (2012) 208 Cal. 

App. 4th, 1400 ["Pacific Be/I"]; Shejfet v. City of Los Angeles (1970) 3 Cal. App. 3d 720, 732.) 

More specifically, under California law the proposition a privately-owned public utility 

such as PG&E may be held liable for inverse condemnation is now solidly established. (Barham 

v. Southern California Edison Co., supra, 74 Cal.App.4th 744, 753; Pacific Bell, supra, 208 Cal.

App. 4th 1400.) 

The Court in Barham found no "significant differences" between a privately held public 

utility and a publicly held utility for the purpose of inverse condemnation liability. (Barham, 

supra, 74 Cal.App. 4th at 753.) Rather, the Court cited the California Supreme Court's holding 

in Gay Law Students Assn. v. Pac Tel. & Tel. Co., supra, 24 Cal. 3d 458 that a public utility is a 

"state actor" when hiring its employees. (Barham at 753.) In Gay Law Students, the Supreme 

Court found " ... the breadth and depth of governmental regulation of a public utility's business 

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practices inextricably ties the state to a public utility's conduct..." (Gay Law Students, supra, 24 

Cal.3d at 470.) 2

The Fourth District is not alone in this line of reasoning. In Pacific Bell, the Second 

District adopted Barham's reasoning in finding the quasi-monopolistic nature of Southern 

California Edison rendered it a public entity. (Pac. Bell, supra, 208 Cal. App. 4th at 1405.) The 

Court explained: "[A] public utility's monopolistic or quasi-monopolistic authority ... derives 

directly from its exclusive franchise provided by the state."(/d. at 1406.) 

PG&E argues repeatedly the California Supreme Court itself has not found a privately 

held public utility liable under inverse condemnation. This is true, but not dispositive. 

PG&E argues the appellate courts in Barham and Pacific Bell improperly extended the 

holding of Gay Law Students beyond the employment context. PG&E cites Automatic Sprinkler 

Co. v. Southern Cal. Edison Co. (1989) 216 Cal. App. 3d 627,633 for its argument. However, 

Automatic Sprinkler ultimately turned on a specific statutory scheme, not application of Gay Law 

Students. (Automatic Sprinkler at 633.) Furthermore, the very same Court of Appeals declined to 

extend the conclusions in Automatic Sprinkler to Barham. (Barham, supra, 74 Cal. App. 4th at 

753.) 

PG&E also cites language from the Third District Court of Appeal's decision in Bach v. 

County of Butte, supra, 215 Cal.App. 3d at 307: " ... it is elementary that an inverse 

condemnation action ... requires state action and, therefore, cannot be asserted against private 

parties." The court does not find this general statement controlling. 

2 Plaintiffs and PG&E both presented arguments as to whether PG&E is a "state actor" for purposes of inverse 

condemnation. While such a finding would certainly fulfill the public entity requirement, it not necessary. (See Baker 

v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal 3d 862,867; Barham, supra, 74 Cal. App. 4th at

752-754; Breidert v. Southern Pac. Co. (1964) 61 Cal. App. 2d, 659; Eachus, supra,103 Cal. at 614; Pacific Bell,

supra, 208 Cal. App. 4th at 1405; Pacific Gas & Electric Co. v. Parachini (1972) 29 Cal. App. 3d 159; Slemons v.

Southern Cal. Edison Co. ( 1967) 252 Cal. App. 2d 1022; Uniwi/1 v. City of Los Angeles (2004124 Cal. App. 4th, 53 7,

544). It is only required that a public entity, not a state actor, damage property for public use.

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Plaintiffs in Bach sought to sue their neighbors in inverse condemnation for the 

neighbors' complaint to the county the Bachs were operating a law practice out of their home in 

violation of zoning regulations. The Court of Appeal's summary dismissal of Bachs' "illconceived, frivolous" argument (Bach, supra, 215 Cal.App.3d at 307) is oflittle guidance in 

assessing PG&E's liability for damages resulting from operation of its power lines. 

2) Risk Sharing

Over 70 years ago Justice Roger Traynor explained the fundamental public policy 

underlying the principle of liability for inverse condemnation: 

The construction of the public improvement is a deliberate 

operation of the state or its agency in furtherance of public 

purposes. In erecting a structure that is inherently dangerous to 

private property, the state or its agency undertakes by virtue of its 

constitutional provision to compensate property owners for injury 

to their properly arising from the inherent dangers of public 

improvement . . . . The decisive consideration is the effect of the 

public improvement on the property and whether the owner of the 

damaged property if uncompensated would contribute more than 

his proper share to the public undertaking. It is irrelevant whether 

or not the injury to the property is accomplished by a corresponding 

benefit to the public purpose to which the improvement is 

dedicated, since the measure of liability is not the benefit derived 

from the property, but the loss to the owner. 

(House v. Los Angeles Co. Flood Control Dist. (1944) 25 Cal.2d 384,396-397 [ cone. opn. of 

Traynor, J.) 

The Butte Fire occurred when a tree came into contact with a power line PG&E operates 

providing electrical service to over 3,640 customers on that line. The court finds if the individual 

property owners damaged here were to absorb that loss, they would be contributing more than 

their "proper share" to the cost of this undertaking. As the Court explained in Pacific Bell, supra, 

208 Cal. App. 4th at 1408: 

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agrees. 

For an owner whose property is damaged by the operation of a utility, he 

or she suffers a disproportionate share of the cost of the public 

improvement regardless of whether the utility is governmentally or 

privately owned. We do not believe the happenstance of which type of 

utility operates in an area should foreclose a property owner's right to just 

compensation under inverse condemnation for the damage, interest and 

attorney fees and should limit the property owner to traditional tort 

remedies. 

3) Public Improvement

Plaintiffs stress PG&E's electrical system is an improvement for public use. The court 

Determining whether a use is public or private is a question of law. (Barham, supra, 74 

Cal.App.4th at 752.) Courts have consistently held the public use requirement is satisfied when 

the improvement is used for the delivery of a utility service. (Id. at 751 ["transmission of 

electrical power is a public use and inverse condemnation will apply"]; accord Slemons v. 

Southern California Edison Co., supra, 252 Cal.App.2d at 1026-1027 [electric distribution lines 

serving three customers is a public use].) 

PG&E's Electra circuits here serve 3,643 customers. (Simon Dec., ,r,r 21 & 22, Ex. T, and 

Ex. U, p. 176: 14-18.) PG&E cannot reasonably dispute its electrical distribution lines are not 

installed and maintained for a public use. 

Although there was no dispute in the parties' submissions that PG&E's electrical system 

was an improvement for public use, the court makes this inevitable finding based upon the 

essential service provided and the substantial segment of the public receiving or dependent upon 

the service. (Barham, supra, 74 Cal.App.4th at 752; Slemons v. Southern California Edison Co., 

supra, 252 Cal.App.2d at 1026-1027.) 

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4) Public Policy

PG&E is subject to inverse condemnation liability despite the fact it is a privately-owned 

public utility. The policy reasons underlying the just compensation right in inverse condemnation 

do not dictate a different conclusion. 

PG&E argues because it is a privately-owned utility, the traditional policy justifications 

for inverse condemnation should not apply in this case because: (1) PG&E did not obtain the land 

upon which its line is located through eminent domain or joint action with the state; (2) PG&E 

does not enjoy sovereign immunity; and (3) PG&E does not have authority to spread the cost of 

any award to all its customers. 

The court is not persuaded. 

5) Eminent Domain

The fact PG&E did not acquire its easement through eminent domain or joint action with 

the government is not material to its liability as a utility for inverse condemnation. A public 

entity may be held liable even if it cannot legally exercise eminent domain. 

Inverse condemnation does not derive from any statutory eminent domain power, but 

directly from the Constitution. (Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 

39 Cal. 3d at 867-868.) As such, inverse condemnation liability does not depend on the 

mechanism by which defendant acquired the land where the damage occurred. It only depends on 

whether a public entity damaged the property of another for public use. (See also Barham, supra, 

Cal. App. 4th at 754 ["A landowner whose property has been invaded by a public entity that lacks 

eminent domain power suffers no less a taking merely because the defendant was not authorized 

to take."].) 

PG&E cites Cantu v. Pacific Gas and Electric Co. (1987) 189 Cal. App. 3d 160, 165, in 

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arguing inverse condemnation liability only lies where a defendant has used eminent domain or 

joint action to obtain the land where its instrumentality was housed. This assessment of Cantu 

misses the mark, as only the holding of a case is authoritative. (Consumer's Lobby Against 

Monopolies v. Public Utilities Com. (1979) 25 Cal. 3d 891, 902 ["The doctrine of stare decisis 

applies only to judicial precedents, i.e., to the ratio decidendi or actual ground of decision of a 

case cited as authority."].) 

In Cantu, the Court stated it had found no case imposing liability without a finding of 

eminent domain or joint action. However, immediately afterwards it stated "[the] connection from 

these homes to a distribution line is a private service to which eminent domain and inverse 

liability principles do not apply." (Cantu at 165 [emphasis added.].) 

In Cantu, the central question was whether the use was private, not whether the defendant 

used eminent domain or joined in government action. As such, further statements in Cantu 

regarding eminent domain and joint action are not controlling. 

6) Cost Spreading 

The court also rejects PG&E's argument the cost-sharing policy underlying inverse 

condemnation does not apply because it lacks the power to spread the cost of condemnation 

across the benefitted public. 

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In Pacific Bell, Southern California Edison ("SCE") similarly argued the loss-spreading 

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rationale underpinning inverse condemnation liability did not apply to it because as a public 

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utility it did not have taxing authority and could only raise rates with the approval of California's 

Public Utilities Commission. But the Court noted the government's delegation to SCE the right 

and obligation to provide a vital public interest (electricity) did "not remove the policy 

justifications underlying inverse condemnation liability: that individual property owners should 

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not have to contribute disproportionately to the risks from public improvements made to benefit 

the community as a whole. (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 

558)." (Pacific Bell, supra, 208 Cal. App. 4

th at p. 1407.) 

The court also noted SCE had not pointed to any evidence supporting its implication the 

PUC would not allow it adjustments to pass on damage liability during its periodic reviews. 

(Pacific Bell, supra, 208 Cal. App. 4th at p. 1407.) 

Such evidence is similarly lacking here. 

7) Sovereign Immunity

PG&E argues the doctrine of inverse condemnation exists, in part, to overcome sovereign 

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immunity, which would otherwise bar recovery in takings cases. This may be true, but 

overcoming sovereign immunity is not the only justification for imposing liability under inverse 

condemnation. (See House, supra, 25 Cal. 2d at 396-397; Barham, supra, 74 Cal. App. 4th at 

752.) 

Furthermore, the sole case PG&E cites is inapposite on the facts. In Customer Co. the 

Supreme Court declined to extend inverse condemnation liability to police officers who damaged 

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property in their efforts to enforce the law. (Customer Co. v. City of Sacramento (1995) 10 Cal. 

4th 368, 404-405.) Indeed, in declining to apply inverse condemnation to police activities, the 

Court recognized inverse condemnation typically deals with "the taking or damaging of private 

property in connection with public improvement projects," which is precisely the subject at issue 

here. (Id at 377.) 

For all these reasons, the court finds PG&E may be held liable under a claim of inverse 

condemnation for the damages alleged here, notwithstanding the fact it is a privately-owned 

utility. 

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B. The Butte Fire Was Caused By A Public Improvement As Deliberately

Designed And Constructed By PG&E

Without conceding it may be liable as a privately held utility, PG&E also argues Plaintiffs 

fail to show the Butte Fire was caused by a public improvement as deliberately designed and 

constructed. 

PG&E contends California's appellate courts have imposed inverse condemnation liability 

in only a handful of scenarios where the harm was caused by: (1) the public improvement's 

intended design or operation; (2) its construction; or (3) deliberate failure to maintain the 

improvement. PG&E argues none of these limited scenarios is present here. PG&E argues 

Plaintiffs at best allege only negligence by PG&E, which alone is insufficient to support inverse 

condemnation liability. 

Again the court is not persuaded. 

PG&E argues Plaintiffs fail to show the deliberate design and construction of PG&E's 

electrical lines caused any harm. (PG&E Opp. p.3: 17-25.) In this respect, PG&E contends 

Plaintiffs must show PG&E deliberately designed its power lines with a deficiency that inevitably 

would lead to a fire. This is not the correct or applicable standard. 

PG&E alternatively relies upon the reasonableness and thorough execution of its 

Vegetation Management Program, as an implicit component of its design of the improvement. 

PG&E essentially contends that since its Vegetation Management Program is reasonable, and that 

program has not been deliberately abandoned or discontinued, that component of the design also 

did not cause the fire. This alternative proposition is also not persuasive on the issue of causation 

and deliberate design. 

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1) Causation Standard

Inverse condemnation is a species of eminent domain actions created by article 1, section 

19 of the California Constitution, which states in relevant part: "Private property may be taken or 

damaged for a public use and only when just compensation, ascertained by a jury unless waived, 

has first been paid to, or into court for, the owner." "In the landmark case of Albers v. County of 

Los Angeles (1965) 62 Cal.2d 250, 263-264 ... [the California Supreme Court] construed this 

provision to mean that, with [certain] exceptions, 'any actual physical injury to real property 

proximately caused by [a public] improvement as deliberately designed and constructed is 

compensable under article I, section 14, of our Constitution whether foreseeable or not."' (Belair, 

supra, 41 Cal.3d at 558.) However, the deliberateness requirement is satisfied by a public 

improvement that, as designed and constructed presents inherent risks of damage to private 

property, and the inherent risks materialize and cause damage. [Citation.]" (Pacific Bell, supra, 

81 Cal.App.4th at 607.) 

The Supreme Court "defined and clarified the element of proximate causation" in Belair. 

(California State Auto. Ass 'n Inter-Ins. Bureau v. City of Palo Alto ("CSAA ") (2006) 138 

Cal.App.4th 474, 480.) The Supreme Court explained: 

[I]n order to establish [the requisite] causal connection between the

public improvement and the plaintiffs damages, there must be a

showing of "'a substantial cause-and-effect relationship excluding

the probability that other forces alone produced the injury.'

[Citations.]" [Citation.] Where independently generated forces not

induced by the public ... improvement ... contribute to the injury,

proximate cause is established where the public improvement

constitutes a substantial concurring cause of the injury, i.e., where

the injury occurred in substantial part because the improvement

failed to function as it was intended.

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(Belair, supra, 47 Cal.3d at 559-560.) Stated similarly in CSAA, "[a] public improvement is a 

'substantial concurring cause' if other forces alone would not have caused the damage and the 

public improvement failed to function as intended." (CSAA, supra, 138 Cal.App.4th 508.) 

Plaintiffs argue here, "the function of PG&E's Electra 1101 Circuit is to transmit 

electrical power to members of the public in a safe manner, without causing a fire. Under these 

circumstances, when the subject tree ( even a green healthy one, maintained under the PG&E 

Vegetation Management Program) made contact with PG&E's power line and started the Butte 

Fire, the power line clearly failed to function as it was intended." (Plaintiffs' Opp., p. 12:1-10.) 

Plaintiffs note one of PG&E's "persons most qualified" testified if the Electra 1101 circuit was 

not there, the falling of the Subject Tree would not have caused a fire. (Simon Deel.,, 24, Ex. W, 

pp. 37:12-38:24.) This conclusion seems inescapable. 

The court finds the deliberateness requirement is satisfied by PG&E's electrical system 

because, as designed and constructed, the public improvement presented inherent risk of damage 

to private property by fire on the easement and beyond. Further, the court also finds the risk 

inherent in the system's design and construction materialized, proximately causing the Butte fire. 

PG&E installed and operated electric distribution lines serving over 3,600 customers, 

spanning miles of forest lands. The system as designed had the inherent risk trees could come 

into contact with the power lines and initiate a fire - hence the Vegetation Management Program. 

Given the placement of the system, and its vulnerability to contact with vegetation, the risk of 

fire was inherent. In the fullness of time, contact between the lines and a tree was inevitable. That 

risk materialized as the Butte Fire. 

Alternatively, to the extent liability also depends upon the system failing to function as 

intended (which is not clear), the system is also found to have failed to function as intended: It 

was intended to transmit electricity without starting a fire. 

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2) The Reasonableness Standard for Inverse Condemnation Applied In Flood

Control Cases Is Not Applicable

Much of the evidence PG&E proffered goes to its Vegetation Management Program. 

PG&E argued the reasonable efforts it takes to manage vegetation near its improvements to 

reduce the risk of fire should be considered in determining whether it is liable for inverse 

condemnation for damage caused by a fire occurring despite its efforts. (PG&E MPA, p.8:1-11 :1, 

and fn. 11.) 

However, the reasonableness of PG&E's maintenance of the natural environment 

surrounding its improvement is not a consideration for inverse condemnation liability in this 

context. Instead, as Plaintiffs argue, the strict liability standard applies here. 

In Pacific Bell, SCE relied upon the long evolving line of flood-control inverse 

condemnation cases to argue a reasonableness standard should apply to its operation of privately 

owned high voltage power lines. The Court rejected this argument, explaining the special 

reasonableness standard applicable to flood-control cases does not apply outside that special 

context. (Pacific Bell, supra, 208 Cal. App. 4

th at pp 1409-1411, citing Pacific Bell Telephone 

Co. v. City of San Diego (2000) 81 Cal.App.4th 596, 614-615.) 

After reviewing the genesis of the flood-control standard and the reasoning of the seminal 

authorities, the Court in Pacific Bell concluded the "concerns that animated the rejection of the 

strict liability rule in the context of public flood control projects has no counterpart here" where 

the risk to Pacific Bell's facility of injury from ground faults was not a risk it was exposed to in 

the absence of Edison's electrical facility." (Pacific Bell, supra, 208 Cal. App. 4

th at pp 1409-1411 

citing Pacific Bell Telephone Co. v. City of San Diego, supra, 81 Cal.App.4th at 614-615.) 

The same reasoning holds here. Unlike the common enemy of flood waters, the risk of 

wildfire from falling trees was not a.risk Plaintiffs were exposed to in the absence of PG&E's 

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electrical improvements.

IV. 

3 Conclusion 

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For the foregoing reasons, Plaintiffs' motion for a finding that PG&E is liable in inverse

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condemnation is granted. Plaintiffs' motion for a similar finding as to the Pacific Gas & Electric

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Corporation is denied.

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PG&E's competing motion for a legal determination that it is not liable in inverse

8 condemnation is denied.

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Plaintiffs' counsel shall prepare an order for the co

10 Rules of Court, rule 3.1312.

11 DATED: JuneAA 2017

Jud Allen Sumner 

Superior Court of California,

County of Sacramento

22

o California

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1 Steven M. Campora (SBN 110909) 

DREYER BABICH BUCCOLA 

2 WOOD & CAMPORA LLP 

20 Bicentennial Circle 

3 Sacramento, CA 95826 

Telephone: (916) 379-3500 

4 scampora@dbbwc.com 

5 Dario de Ghetaldi (SBN 126782) 

Amanda L. Riddle (SBN 215221) 

6 COREY, LUZAICH, DE GHETALDI, 

NAST ARI & RIDDLE LLP 

7 700 El Camino Real, Millbrae, CA 94030-0669 

deg�coreylaw .com: alr@coreylaw.com 

8 Co- iaison Counsel for Individual Plaintiffs 

Kenneth R. Chiate (SBN 39554) 

Jeffrey N. Boozell (SBN 199507) 

ENDORSED 

JUN 2 2 2017 

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QUINN EMANUEL URQUHART & SULLIVAN, LLP 

865 South Figueroa Street, 10th Floor 

Gayle L. Gough (SBN 154398) 

Joel B. Crane (SBN 271699) 

GOUGH & HANCOCK, LLP 

Two Embarcadero Center, , Suite 640 

San Francisco, CA 94111 Telephone: 

(415) 848-8900

�ayle.gough�ghcounsel.com 

10el.crane@g counsel.com 

Los Angeles, CA 90017 

Telephone: (213) 443-3000 

kenchiatefmquinnemanuel.com 

jeffboozel@guinnemanuel.com 

Counsel for Defendants Pacific Gas and 

Electric Company and PG&E Corporation 

SUPERIOR COURT OF THE ST ATE OF CALIFORNIA 

FOR THE COUNTY OF SACRAMENTO 

Coordination Proceeding Special Title 

(Rule 3.550) 

BUTTE FIRE CASES. 

)

) Assigned to the Honorable Allen H. Sumner 

Case No. JCCP 4853 

�

�

�

) 

STIPULATION AND (PIU�F�fsl:l�iQ� 

ORDER REGARDING PLAINTIFFS' 

PROPOSED MOTION FOR 

DETERMINATION OF INVERSE 

CONDEMNATION LIABILITY (C.C.P. § 

1260.040) 

STIP AND ORDER RE PLAINTIFFS' MOTION RE INVERSE CONDEMNATION Butte Fire Cases 

JCCP 4853 

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WHEREAS: 

1. Individual Plaintiffs and Defendant PG&E (the "Parties") are parties to a Judicial

Counsel Coordination Proceeding pursuant to Code of Civil Procedure§ 404, et seq., known as 

the Butte Fire Cases, JCCP 4853 (the "Coordination Proceeding"); and 

2. The Coordination Proceeding includes numerous common issues that were alleged in

the Individual Plaintiffs' Master Complaint and the Parties desire to have the Court make certain 

legal determinations in advance of any trial of any of the claims in the Coordination Proceeding, 

which determinations will apply to any and all claims currently made in the Coordination 

Proceeding; and 

3. One common issue is whether Defendant PG&E is subject to inverse condemnation

liability based on allegations in Individual Plaintiffs' Master Complaint that damage to their 

property allegedly was caused by the conduct of Defendant PG&E and that, as a result, Plaintiffs 

are entitled to damages according to proof; and 

4. Certain individual plaintiffs have adopted the Cause of Action for Inverse

Condemnation as stated in the Individual Plaintiffs' Master Complaint by way of their respective 

Adoption Complaints (the "Moving Plaintiffs")1

; and 

5. The Moving Plaintiffs intend to bring in the Coordination Proceeding a Motion for

Determination oflnverse Condemnation Liability pursuant to Code of Civil Procedure § 

1260.040 seeking a determination from this Court that Defendant PG&E is liable for inverse 

condemnation (the "Master Motion"); and 

6. To prevail on such motion, each Moving Plaintiff must establish that their real and/or

personal property was damaged in the Butte Fire, and; 

7. Absent this stipulation, in order to establish such damage, each Moving Plaintiff

1 The Subrogation Plaintiffs are in the process of finalizing their settlement with Defendants and

will not be Moving Plaintiffs in this instance. 

-1-

STIP AND ORDER RE PLAINTfFFS' MOTION RE INVERSE CONDEM 

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would be required to present evidence in the form of declarations of specific damages to that 

Plaintiffs property, and; 

8. In order to expedite the Court's determination of Plaintiffs entitlement or lack of

entitlement to recover damages under the Cause of Action for Inverse Condemnation through the 

Master Motion, the Parties wish to avoid the necessity of individual declarations concerning 

damages from each of the Moving Plaintiffs. 

Accordingly, the Parties agree as follows: 

I. In support of the Master Motion, only Plaintiffs Larry and Karen Carr,

Florencio and Martha Garcia, Robert and Barbara Garibaldi, Edward and Laura Miser, Ronald 

and Darunee Rogers, and Barbara Rose (collectively "August 11th Plaintiffs") will submit 

evidence that their real and/or personal property was damaged in the Butte Fire; 

2. If the Court determines that Defendant PG&E is liable for inverse

Condemnation, that determination pursuant to the Master Motion will be binding as between 

PG&E and all Moving Plaintiffs presently in the Coordination Proceeding; 

3. If the Court determines that Defendant PG&E is liable for inverse condemnation and

notwithstanding the fact that such determination of liability shall be binding as between the 

Moving Plaintiffs and PG&E presently in the Coordination Proceeding, August 11th Plaintiffs 

still have the burden of proving the amount of their damages, and the remaining Moving 

Plaintiffs still have the burden of proving that their real and/or personal property was damaged in 

the Butte Fire and the amount of their damages, and; 

4. This Stipulation and [Proposed] Order shall not affect any party's rights to move

for reconsideration, to appeal, to challenge any rulings, or to seek any subsequent orders as may 

be permitted by law, all of which are preserved. 

I I I 

I I I 

I I I 

-2-

STIP AND ORDER RE PLAINTIFFS' MOTION RE INVERSE CONDEMNATION 

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1 5. The Stipulation may be executed in counter-parts and facsimile signatures may be

2 deemed original signatures. 

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Dated: May 22, 2017

Dated: May 22, 2017 

14 Dated: May 22, 2017 

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19 Dated: May 22, 2017 

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22 IT IS SO ORDERED. 

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24 DATED: _¥/_(_-z..:_��[_/_-=}----__ 

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By: 

Steven M. Campora 

Dreyer Babich Buccola Wood & Campora, LLP 

Co-Liaison Counsel for Individual Plaintiffs 

Corey, Luzaich, de Ghetaldi, Nastari & Riddle LLP 

Co-Liaison Counsel for Individual Plaintiffs 

By: 

K�� 

Kenneth R. Chiate 

Quinn Emanuel Urquhart & Sullivan LLP 

Counsel for Defendant PG&E 

By: GayieE ��JJi4--Gough 

Gough & Hancock LLP 

Counsel for Defendant PG&E 

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STIP AND ORDER RE PLAINTIFFS' MOTION RE INVERSE CONDEMNATION 

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1 ELECTRONIC PROOF OF SERVICE 

2 I, Diana Prisk, hereby declare as follows: 

3 I am employed by Corey, Luzaich, de Ghetaldi, Nastari & Riddle LLP, 700 El Camino 

4 Real, Millbrae, California, 94030. I am over the age of 18 years and am not a party to this 

5 action. On May 22, 2017, I caused service of true and correct copies of the following: 

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STIPULATION AND [PROPOSED] ORDER REGARDING PLAINTIFFS' 

PROPOSED MOTION FOR DETERMINATION OF INVERSE CONDEMNATION 

LIABILITY (C.C.P. § 1260.040) 

On the interested parties in this action pursuant to the most recent Omnibus Service List 

by submitting an electronic version of the document(s) via file transfer protocol (FTP) to 

CaseHomePage through the upload feature at www.casehomepage.com. 

12 

13 I declare under penalty of penalty of perjury pursuant to the laws of the State of 

14 California that the foregoing is true and correct. 

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Executed at Millbrae, California, on May 22, 2017. 

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STIP AND ORDER RE PLAINTIFFS' MOTION RE INVERSE CONDEMNATION 

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