1

Filed 12/6/17

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Plumas)

----

DEPARTMENT OF FORESTRY AND FIRE 

PROTECTION et al.,

Plaintiffs and Appellants,

v.

EUNICE E. HOWELL et al.,

Defendants and Respondents.

C074879, C076008

(Super. Ct. Nos.

CV09-00205 (lead), 

CV09-00231, CV09-00245, 

CV10-00255, CV10-00264)

APPEAL from a judgment of the Superior Court of Plumas County, Leslie C. 

Nichols, Judge. (Retired judge of the Santa Clara Super. Ct., assigned by the Chief 

Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney 

General, Robert W. Byrne, Assistant Attorney General, Gary E. Tavetian, Evan 

Eickmeyer and Daniel M. Lucas, Deputy Attorneys General, for Plaintiffs and Appellants

Department of Forestry and Fire Protection.

 

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication from inception through the end of part I.B. of the Discussion as well as 

the Disposition. 
2

Gary S. Garfinkle; Kenneth P. Roye for Plaintiffs and Appellants Brandt et al. and 

Grange Insurance Association.

Anderlini & McSweeney LLP, Terry Anderlini and G. Chris Andersen for 

Plaintiffs and Appellants Richard Guy et al. and John Cosmez et al.

Downey Brand LLP, William R. Warne, Michael J. Thomas, Annie S. Amaral and 

Meghan M. Baker for Defendant and Respondent Sierra Pacific Industries.

Matheny Sears Linkert & Jaime, LLP, Richard S. Linkert and Julia M. Reeves for 

Defendants and Respondents W.M. Beaty & Associates, Inc., and Ann McKeever Hatch, 

as Trustee, etc., et al.

Rushford & Bonotto, LLP, Phillip R. Bonotto and Derek Vandeviver for 

Defendants and Respondents Eunice E. Howell, etc., J.W. Bush and Kelly Crismon et al.

Deborah J. La Fetra and Lawrence G. Salzman for Pacific Legal Foundation as 

Amicus Curiae on behalf of Defendants and Respondents.

Morrison & Forester LLP, Christopher J. Carr, William M. Sloan, and Navi Singh 

Dhillon for Michael Cole and Tom Hoffman, as Amici Curiae on behalf of Defendants

and Respondents.

Mark Brnovich, Attorney General (Arizona); Doug Peterson, Attorney General

(Nebraska); Adam Paul Laxalt, Attorney General (Nevada); Sean D. Reyes, Attorney 

General (Utah), Parker Douglas, Chief Federal Deputy, and Aaron G. Murphy, Assistant 

Solicitor General; Brad D. Schimel, Attorney General (Wisconsin), as Amici Curiae on 

behalf of Defendants and Respondents.

A wildfire started in Plumas County on September 3, 2007, and burned 

approximately 65,000 acres over the course of multiple weeks. This fire, dubbed the 

“Moonlight Fire,” was at the center of several actions filed by plaintiffs Department of 

Forestry and Fire Protection (Cal Fire), Grange Insurance Association, and multiple 

landowners

1 in 2009 and 2010 against defendants Eunice E. Howell, individually, and on 

 

1 Cal Fire’s action was deemed the lead case in this complex civil litigation (Plumas 

Super. Ct. No. CV09-00205). Landowner plaintiffs include, in order of appearance: case 

No. CV09-00231: Gary L. Brown and Sharon Brown; William R. Butler and Peggie L. 

Butler; Janet Farmer; Andrea C. Fox and Lynn K. Fox; William C. Goss; K. Ronald 
3

behalf of Howell’s Forest Harvesting (hereafter Howell)—the designated lead defendant 

and respondent; Kelly Crismon; J.W. Bush; Sierra Pacific Industries (Sierra Pacific);

W.M. Beaty and Associates, Inc. (Beaty); and multiple landowner defendants (landowner 

defendants)2 for recovery of fire suppression and investigation costs and for monetary 

damages. 

On the eve of trial in July 2013, the consolidated actions were dismissed following 

a hearing on a motion for judgment on the pleadings and for presentation of a prima facie 

 

Morgan and Dorothea D. Morgan, individually and as trustees of the Orion Trust, LTD, 

dated October 1, 1993, and the Evergreen Trust, dated 1985; Patricia Qualls; George B. 

Wieck and Dorta Lee Wieck; Donald J. Wilson; Richard A. Guy and Edith E. White; case 

No. CV10-00255: James H. Brandt and Ellen E. Brandt, individually and as trustees of 

the James H. Brandt Trust, dated October 7, 2004; and case No. CV10-00264: Robert V. 

Kile and Dawn A. Kile, as cotrustees of the Kile Family Trust, dated October 13, 2004;

Erik Weber and Sally Weber; Robert Cross; Kenneth J. Zeits and Jessie Zeits, as 

cotrustees of the Zeits Family Trust; and John Cosmez and Christine Cosmez. Grange 

Insurance Association appeared to recover damages paid to some of these landowner 

plaintiffs (case No. CV09-00245). 

2 Landowner defendants include Ann McKeever Hatch, as trustee of the Hatch 1987 

Revocable Trust; Richard L. Greene, as trustee of the Hatch Irrevocable Trust; Brooks 

Walker, Jr., as trustee of the Brooks Walker, Jr., Revocable Trust and the Della Walker 

Van Loben Sels Trust for the Issue of Brooks Walker; Jr.; Brooks Walker III, 

individually and as trustee of the Clayton Brooks Danielsen Trust, the Myles Walker

Danielsen Trust, the Margaret Charlotte Burlock Trust, and the Benjamin Walker 

Burlock Trust; Leslie Walker, individually and as trustee of the Brooks Thomas Walker 

Trust, the Susie Kate Walker Trust, and the Della Grace Walker Trust; Wellington Smith 

Henderson, Jr., as trustee of the Henderson Revocable Trust; Elena D. Henderson; Mark 

W. Henderson, as trustee of the Mark W. Henderson Revocable Trust; John C. Walker, 

individually and as trustee of the Della Walker Van Loben Sels Trust for the Issue of 

John C. Walker; James A. Henderson; Charles C. Henderson, as trustee of the Charles C. 

and Kirsten Henderson Revocable Trust; Joan H. Henderson; Jennifer Walker, 

individually and as trustee of the Emma Walker Silverman Trust and the Max Walker 

Silverman Trust; Kirby Walker; and Lindsey Walker or Lindsey Walker-Silverman, 

individually and as trustee of the Reilly Hudson Keenan Trust and the Madison Flanders 

Keenan Trust. 
4

case pursuant to Cottle v. Superior Court (1992) 3 Cal.App.4th 1367 (Cottle)

3 after the 

trial court concluded Cal Fire could not as a matter of law state a claim against Sierra 

Pacific, Beaty, or landowner defendants, and that no plaintiff had presented a prima facie 

case against any defendant. After judgment was entered, the trial court awarded 

defendants costs without apportionment amongst plaintiffs. It also ordered Cal Fire to 

pay to defendants attorney fees and expert fees totaling more than $28 million because 

defendants as prevailing parties were entitled to recover attorney fees on either a 

contractual basis or as private attorneys general, or alternatively as discovery sanctions. 

The trial court additionally imposed terminating sanctions against Cal Fire. Plaintiffs 

appeal, challenging both the judgment of dismissal (case No. C074879) and the 

postjudgment awards (case No. C076008).4 Plaintiffs also request that any hearings on 

remand be conducted by a different judge. 

In the published portion of this opinion, we conclude the trial court’s order 

dismissing the case as to all plaintiffs based on their failure to present a prima facie case 

at a pretrial hearing under the authority of Cottle must be reversed because the hearing 

was fundamentally unfair: Plaintiffs were not provided adequate notice of the issues on 

which they would be asked to present their prima facie case. However, we conclude the 

trial court did properly award judgment on the pleadings against Cal Fire. In light of 

these conclusions, in the unpublished portion of this opinion, we find the trial court’s

award of costs to defendants as prevailing parties as to any plaintiff but Cal Fire is 

necessarily vacated, and because the trial court did not apportion costs, we must remand 

 

3 Cottle allows a trial court overseeing complex civil litigation to require a party to 

present a prima facie claim establishing some element of their cause of action prior to 

trial in a nonstatutory procedure established by the trial court based on its “inherent 

equity, supervisory and administrative powers.” (Cottle, supra, 3 Cal.App.4th at 

pp. 1376-1377, 1381.)

4 The two appeals were consolidated for purposes of oral argument and decision only. 
5

the costs award to the trial court for further proceedings to determine which costs Sierra 

Pacific, Beaty, and landowner defendants may recover from Cal Fire. Also in the 

unpublished portion of this opinion, we conclude the trial court erred in awarding 

attorney fees to the prevailing parties, and that the award of monetary discovery sanctions 

must be reversed and remanded for further proceedings. We affirm, however, the 

imposition of terminating sanctions against Cal Fire. Finally, we reject plaintiffs’ 

requests that we order any remand proceedings be heard by a different judge. 

FACTUAL AND PROCEDURAL BACKGROUND

Cal Fire’s investigation of the Moonlight Fire determined that the fire started on 

property owned by landowner defendants and managed by Beaty. Sierra Pacific 

purchased the standing timber on the property, and contracted with Howell, a licensed 

timber operator, to cut the timber. On the day the Moonlight Fire began, two of Howell’s 

employees, Bush and Crismon, were working on the property installing water bars.5 

Cal Fire’s investigators concluded the fire began when the bulldozer Crismon was 

operating struck a rock or rocks, causing superheated metal fragments from the 

bulldozer’s track to splinter off and eventually to ignite surrounding plant matter, and that 

the fire was permitted to spread when Bush and Crismon failed to timely complete a 

required inspection of the area where they had been working that day. 

Over the course of four years, the parties engaged in extensive discovery and 

pretrial motions in both this consolidated action and in a concurrent federal action. The 

trial court designated the state court action as complex litigation under California Rules 

of Court, rule 3.403(b) and Standard 3.10 of the California Standards of Judicial 

Administration. About three months before trial was to commence, retired Judge Leslie 

C. Nichols was appointed to preside over all proceedings in this case. Beginning in June 

 

5 Water bars are berms or mounds designed to control erosion.
6

2013, Judge Nichols ruled on nearly 100 motions in limine and reviewed the thousands of 

pages that made up the record in the case, including the trial briefs submitted by the 

parties on July 15, 2013. In a footnote in its trial brief, Sierra Pacific purportedly moved 

for judgment on the pleadings as to Cal Fire, contending Cal Fire had not asserted a cause 

of action pursuant to Health and Safety Code sections 13009 or 13009.1,6 which were the 

sole basis for Cal Fire to recover its fire suppression and investigation costs. Sierra 

Pacific asserted Cal Fire’s claims premised on common law should be dismissed prior to 

trial.

On July 22, 2013, exactly one week before trial was set to commence, the trial 

court issued a “notice to counsel.” In that notice, the trial court indicated that during the 

previously scheduled pretrial hearing—set for July 24, 25, and 26 (if necessary)—it 

would be prepared to hear any motions for judgment on the pleadings defendants 

intended to advance; it would share its views on the likelihood certain jury instructions 

would be presented; it would address whether common law claims could be asserted; it 

would also discuss with counsel and issue rulings regarding issues raised during the 

hearing including whether expert testimony would be required to present evidence of the 

standard of care, and, if so, the viability of claims and evidence supporting them. The 

court also indicated it “may, with the assistance of counsel, identify claims or issues 

susceptible to the conduct of a hearing authorized by Cottle[, supra,] 3 Cal.App.4th [at 

page] 1381 . . . that is to determine whether a prima facie case can be established before 

the start of the trial.” 

At the end of this pretrial hearing, the trial court entered orders dismissing the case 

based on its finding that all plaintiffs failed to make a prima facie showing that they could 

sustain their burden of proof against any defendant, and granting an oral motion for 

 

6 Undesignated statutory references are to the Health and Safety Code. 
7

judgment on the pleadings against Cal Fire only as to Sierra Pacific, Beaty, and 

landowner defendants, based on its finding that sections 13009 and 13009.1 did not 

provide a legal basis for relief as to those parties.7 Judgment of dismissal was entered in 

favor of defendants on July 26, 2013. 

Approximately six months after the judgment of dismissal was entered, the trial 

court heard plaintiffs’ motions to tax defendants’ costs. Following extensive briefing and 

argument by the parties, the trial court awarded costs to all defendants, for which it made 

all plaintiffs jointly and severally liable. 

Postjudgment, the trial court also heard defendants’ motions for attorney fees, 

expenses, and discovery sanctions. In September 2013, the trial court established a 

phased briefing schedule for the motions, with the parties to first focus on entitlement to 

the fees, expenses, and sanctions, and thereafter to focus on the proper amount, if any, of 

such an award. In late October 2013, after defendants had filed their opening briefs in the 

first phase of postjudgment motions, defendants informed the trial court they had learned 

of new evidence Cal Fire had failed to produce during pretrial discovery in violation of 

previous court orders. As a result of this development, Cal Fire acknowledged it had 

“ ‘inadvertently’ ” failed to produce the document in question and some 5,000 other 

pages of responsive documents. The trial court ordered Cal Fire to produce the 

documents, and all responsive documents, by the end of October 2013. Cal Fire

produced about 5,000 pages of documents and, at a court appearance in early November 

2013, represented to the trial court that it had produced all responsive documents. A 

couple of weeks later, at the end of its brief relating to the earlier production of 

documents, Cal Fire acknowledged that there were an additional 2,000 pages of 

 

7 One plaintiff, California Engels Mining Company, dismissed the case against 

defendants with prejudice in exchange for a waiver of costs on the eve of trial and is not 

subject to the challenged order of dismissal. 
8

responsive documents that still had not been produced. It produced those documents in 

late November 2013.

The trial court found it was appropriate to assess monetary and terminating 

sanctions against Cal Fire for engaging in pervasive discovery abuses. Among the 

enumerated exemplar abuses the trial court identified were Cal Fire’s failure to produce 

responsive documents in violation of court orders, false deposition testimony by 

Cal Fire’s lead investigator, falsification of interview statements incorporated into 

Cal Fire’s discovery responses, spoliation of Cal Fire’s investigator’s notes, and inclusion 

of false reports in Cal Fire’s discovery responses. The trial court also found defendants 

were entitled to cost-of-proof expenses for disproving Cal Fire’s denial of certain 

requests for admission. Finally, the trial court found defendants were entitled to attorney 

fees as prevailing parties both on a contractual basis (Civ. Code, § 1717) and because the 

case resulted in a public benefit (Code Civ. Proc., § 1021.5).

Based both on its inherent authority and the Civil Discovery Act (Code Civ. Proc., 

§ 2016.010 et seq.), the trial court imposed terminating sanctions in favor of all 

defendants and against Cal Fire. In addition, the trial court collectively awarded Beaty 

and landowner defendants attorney fees and expert witness fees of $6,146,901.41 as “a 

prevailing party,” and made Cal Fire liable for the entirety of the award. The trial court 

also ordered Cal Fire to pay an equal amount as a sanction, but stated that the entire 

obligation established by the order was $6,146,901.41. The trial court also collectively 

awarded attorney fees of $1,166,155 and expert costs of $405,586.08 to Howell, Bush, 

and Crismon, either as discovery sanctions or prevailing parties. Finally, the trial court 

awarded Sierra Pacific attorney fees and expert fees and costs of $21,881,484, as 

discovery sanctions or in the alternative as a prevailing party.
9

Additional factual and procedural information is provided as relevant in the 

ensuing discussion.8

DISCUSSION

I. Challenges to Judgment of Dismissal

Plaintiffs collectively challenge the trial court’s judgment of dismissal by 

challenging, on both procedural and substantive grounds, its order finding plaintiffs had 

not presented a prima facie case. Cal Fire also separately challenges the trial court’s 

order granting judgment on the pleadings based on its conclusion sections 13009 and 

13009.1 do not permit Cal Fire to state claims arising from common law negligence 

theories. We reverse the trial court’s judgment of dismissal based on its Cottle hearing 

because we conclude the conduct of that hearing violated defendants’ procedural due 

process rights.9 However, we affirm the trial court’s judgment of dismissal to the extent 

it was premised on its grant of judgment on the pleadings because we agree sections 

13009 and 13009.1 do not incorporate common law theories of negligence as a basis for 

recovery.

A. Cottle Hearing

Plaintiffs challenge the trial court’s dismissal of the action, raising procedural and 

substantive challenges to the trial court’s provision of notice of a hearing based on Cottle 

 

8 We deny the multiple requests for judicial notice made in this court because the 

information presented therein, relating to the federal litigation premised on the Moonlight 

Fire and the amount of notice given prior to a Cottle hearing in two unrelated cases, is not 

relevant or necessary to our resolution of the issues on appeal in cases Nos. C074879 and 

C076008. (Evid. Code, §§ 452, 459.) 

9 We would address plaintiffs’ challenge to the dismissal based on the Cottle hearing 

regardless of how we rule on the dismissal pursuant to the motion for judgment on the 

pleadings because judgment on the pleadings was entered only as to one plaintiff and 

some of the defendants. 
10

and its finding that plaintiffs failed to present a prima facie case in support of their causes 

of action. Based on our conclusion that the hearing suffered prejudicial procedural 

errors, we need not reach the parties’ substantive challenges to the trial court’s order. As 

a result of this conclusion, we reverse the trial court’s judgment of dismissal premised on 

its finding plaintiffs failed to present a prima facie case in support of their causes of 

action.

1. Additional background.

One week before trial was to commence, the trial court issued a two-page notice to 

counsel, in which it decreed sua sponte that during the already scheduled pretrial hearing 

set to commence in two days’ time, it would hear any oral motions for judgment on the 

pleadings any defendant wished to advance; it would share its views on the likelihood 

that certain jury instructions would be given and its views on some arguments advanced 

by the parties on whether general negligence claims could be advanced; it would hear 

discussion and issue rulings regarding the necessity of expert testimony, and the effect of 

that ruling on the viability of claims asserted; it would work with counsel to minimize 

evidentiary disputes and to organize exhibits and evidence; and it “may, with the 

assistance of counsel, identify claims or issues susceptible to the conduct of a hearing 

authorized by Cottle[, supra,] 3 Cal.App.4th [at page] 1381 . . . that is to determine 

whether a prima facie case can be established before the start of the trial.” 

When they appeared for the pretrial hearing on July 24, 2013, the parties presented 

bench briefs on some of the issues identified in the trial court’s notice and asserted their 

preparedness to discuss others. Sierra Pacific proceeded to move for judgment on the 

pleadings as to all of Cal Fire’s claims, for failure to state a cause of action. Before 

presenting arguments on that motion, Sierra Pacific also stated its intention to move 

“under Cottle for the Court to require a prima facie showing from all plaintiffs on various 

issues.” Argument on the motion for judgment on the pleadings took the entirety of the 
11

morning session that day, with Cal Fire being invited to submit a written opposition to the 

motion “promptly.” 

During the afternoon session, defendants identified two “insurmountable” 

causation issues for all plaintiffs: (1) the fire was reported within the two-hour window 

after cessation of yarding activity that would trigger inspection requirements under 

California Code of Regulations, title 14, section 938.8,10 and Bush was returning to 

conduct an inspection within that two-hour window but by the time he arrived the fire 

was already burning uncontrollably; and (2) as it is alleged the fire remained in an 

“incipient state” for an hour and a half, there is no evidence a diligent inspection would 

have detected the fire. Additionally, defendants argued there was no evidence that 

different conduct by any defendant other than Howell, Bush, or Crismon would have 

changed the outcome on September 3, 2007, to support plaintiffs’ claims of negligent 

supervision, negligent hiring, negligent retention, or negligent maintenance. Defendants 

also argued there was an absence of evidence of Howell’s or Beaty’s violation of the 

standard of care because no plaintiff had offered an expert to testify in that regard and 

Howell’s policies could not be used to establish the standard of care.

Thus, it was not until later in the afternoon session on July 24, 2013, that the 

issues on which plaintiffs would be called to present a prima facie case were even 

identified. Counsel for plaintiffs presented argument and offers of proof on the afternoon 

of July 24. On July 25, counsel for Cal Fire and Howell presented a substantial amount 

of evidence and argument regarding the causation and standard of care issues highlighted 

 

10 California Code of Regulations, title 14, section 938.8, subdivision (a) provides in 

relevant part: “The timber operator or his/her agent shall conduct a diligent aerial or 

ground inspection within the first [two] hours after cessation of felling, yarding, or 

loading operations each day during the dry period when fire is likely to spread. The 

person conducting the inspection shall have adequate communication available for 

prompt reporting of any fire that may be detected. . . .” 
12

by counsel for defendants the previous day, and defendants presented counter-arguments 

and challenged the offers of proof of evidence presented. Toward the end of the day on 

July 25, the trial court directed defendants to prepare a proposed order laying out the 

deficiencies in plaintiffs’ case to be distributed that night, with an opportunity to cure to 

be given the following day. 

Then, on July 26, 2013, when court reconvened, the parties argued the motion for 

judgment on the pleadings. It was not until that motion was submitted that plaintiffs were 

permitted to again present their prima facie case, at which time plaintiffs objected to the 

Cottle procedure as applied in this case, and presented further arguments relating to the 

Cottle “motion.” During this time period, the parties also presented briefs to the court on 

any number of other issues still undecided, including, for example, jury instructions, 

whether expert testimony was required to establish the standard of care and breach 

thereof, and the motion for judgment on the pleadings. Late in the afternoon on July 26, 

the trial court deemed the case submitted and entered an order dismissing the case based 

on its finding that plaintiffs failed to establish a prima facie case. 

2. Legal background.

Cottle involved an action filed by approximately 175 owners and renters of 

residential property who sued the property developers for personal injuries, emotional 

distress, and property damage arising from development on a site that was previously 

used as a depository for hazardous waste and byproducts. (Cottle, supra, 3 Cal.App.4th 

at pp. 1371-1372.) During discovery, the plaintiffs responded to an interrogatory asking 

for a detailed description of the illness they claimed to suffer from exposure to chemical 

substances by stating generally that they had not yet identified any injuries caused by 

chemical exposure but reserving the right to assert a claim if more information became 

available. (Id. at p. 1372.) 
13

On November 7, 1990, the trial court issued a case management order requiring 

that each plaintiff file and serve by February 1, 1991, a statement establishing a prima 

facie claim for personal injury and/or property damage, including details as to exposure, 

injury, and expert support with regard to any personal injury claim. (Cottle, supra,

3 Cal.App.4th at p. 1373.) The plaintiffs filed their statements on January 7, 1991, in 

which they stated it was “ ‘virtually impossible’ ” to determine the specific chemicals to 

which they were exposed or when and that none had been diagnosed with an injury 

directly caused by exposure to any chemical present at or around the development, and 

that their treating physicians did not have the benefit of knowing they were exposed to 

toxic chemicals. (Ibid.) The court set a hearing on March 4, 1991, on a motion to 

dismiss their claims for failure to make a prima facie showing. (Id. at p. 1374.) On 

March 12, 1991, the trial court found the plaintiffs had shown a prima facie case for their 

emotional distress and property damages claims but not their personal injury claims, and 

tentatively ordered exclusion of all evidence that plaintiffs suffer any particular physical 

injury based on exposure to chemicals at the development unless the plaintiffs could 

demonstrate by May 31, 1991, that viable claims for personal injury existed. (Ibid.) 

The plaintiffs submitted supplemental statements on May 31, 1991, including 

declarations from a toxicologist and two neuropsychologists. (Cottle, supra, 

3 Cal.App.4th at p. 1375.) On June 27, 1991, the trial court conducted a hearing to 

determine whether the supplemental statements established a prima facie showing for 

personal physical injury. (Ibid.) The trial court concluded no witness presented any 

statement or testimony establishing to a reasonable medical probability that any 

hazardous or toxic substance caused any injury or illness in any plaintiff. (Ibid.) 

Accordingly, on July 2, 1991, the trial court entered an order in limine excluding all 

evidence of personal injury. (Ibid.)
14

In defending the trial court’s authority to issue such an order, the Court of Appeal, 

Second Appellate District, Division Seven, reasoned that courts have “inherent equity, 

supervisory and administrative powers” derived from the Constitution, in addition to 

statutory authority to control the proceedings which they oversee. (Cottle, supra,

3 Cal.App.4th at p. 1377.) Thus, Cottle explained, “ ‘ “ ‘[c]ourts have inherent power . . .

to adopt any suitable method of practice, both in ordinary actions and special 

proceedings, if the procedure is not specified by statute or by rules adopted by the 

Judicial Council.’ ” That inherent power entitles trial courts to exercise reasonable 

control over all proceedings connected with pending litigation . . . in order to insure the 

orderly administration of justice.’ ” (Id. at p. 1378.) 

Thus, Cottle recognized that “courts have the power to fashion a new procedure in 

a complex litigation case to manage and control the case before them.” (Cottle, supra, 

3 Cal.App.4th at p. 1380.) Although Cottle did not set forth any precise guidelines, it 

encouraged consideration of “the totality of the circumstances,” and concluded the timing 

of the order in that case was “crucial to its legitimacy.” (Ibid.) The exclusion order was 

issued a month prior to the anticipated start of a one- to two-year-long trial and after 

discovery was closed. (Ibid.) Therefore, Cottle approved the trial court’s use of its 

inherent powers to manage complex litigation by ordering exclusion of evidence when 

the plaintiffs are unable to establish a prima facie case prior to the start of trial. (Id. at 

p. 1381.) 

Cottle further rejected the plaintiffs’ contention that they were deprived of due 

process, holding, “[e]ven though the nature of the proceedings in the court changed, it 

was clear that what the court wanted was for petitioners [(the plaintiffs)] to make a prima 

facie showing of their physical injury claims. Accordingly, [the plaintiffs] had notice of 

what was actually required of them as well as extensive opportunity to present evidence 

and argue the issue.” (Cottle, supra, 3 Cal.App.4th at p. 1384.) 
15

In the nearly three decades since Cottle was decided, two published cases have 

affirmed a trial court’s use of Cottle-type proceedings. In Lockheed Martin Corp. v. 

Continental Ins. Co. (2005) 134 Cal.App.4th 187, 193, Lockheed Martin sought coverage 

under numerous policies for pollution-related liability. The trial court organized the 

litigation, involving that suit and others, into phases with one phase set to be tried to a 

jury. (Id. at p. 195.) Prior to trial, the trial court (Judge Leslie C. Nichols, who was also 

the trial judge here) conducted a Cottle hearing that “require[ed] the parties to produce 

evidence to support a prima facie case on every issue for which the party had the burden 

of proof.” (Lockheed, at p. 195.) Lockheed Martin submitted evidence, including a 

series of declarations from employees and experts, of 14 accidents it claimed resulted in 

the release of pollutants at a specific location. (Id. at pp. 211, 213.) When Lockheed 

Martin failed to prove its claim of coverage for contamination at one location, the trial 

court excluded evidence leading to dismissal of its indemnity claims. (Id. at p. 195.) 

While no specific timeline is described in Lockheed, it is apparent the litigation lasted 10

years and there was ample time provided for the parties to accumulate declarations and 

other evidence prior to the hearing. (Id. at pp. 193, 213-214.) 

And, in Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1243-1245, a 

case involving several hundred plaintiffs with toxic tort claims, the trial court required 

offers of proof demonstrating causation to be submitted with an amended complaint to be 

filed following the sustaining of a demurrer. The reviewing court indicated it had 

“significant concerns about a procedure requiring detailed sworn affidavits at the 

pleading stage,” but assumed the order was valid because the plaintiffs had not raised any 

issues challenging it. (Id. at p. 1245, fn. 3.) 

The infrequent application of Cottle is perhaps unsurprising in light of extensive 

scrutiny of its reasoning. In the dissent to Cottle, authored by Justice Johnson, it was 

highlighted that until Cottle, “resort to a trial court’s inherent authority to craft new rules 
16

of civil procedure [was] only a proper exercise of inherent powers when made necessary 

because of the absence of any statute or rule governing the situation. Thus, the rationale 

for devising new rules of procedure has historically been one of necessity. In other 

words, to fill a void in the statutory scheme, a court had a duty to create a new rule of 

procedure in the interests of justice and in order to exercise its jurisdiction.” (Cottle, 

supra, 3 Cal.App.4th at p. 1391 (dis. opn. of Johnson, J.).) And none of the prior 

judicially created procedures involved deciding the merits of a cause of action thereby 

removing it from a jury’s consideration. (Ibid.) 

Subsequent authority too has challenged the scope of the court’s inherent authority 

relied upon in Cottle. Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967, 

citing Cottle, acknowledged the courts’ “fundamental inherent equity, supervisory, and 

administrative powers, as well as inherent power to control litigation before them,” but 

observed the courts’ powers to fashion new procedures is not boundless (id. at pp. 967-

968). Rather, “inherent power may only be exercised to the extent not inconsistent with 

the federal or state Constitutions, or California statutory law.” (Stephen Slesinger, Inc. v. 

Walt Disney Co. (2007) 155 Cal.App.4th 736, 762 (Slesinger); see Elkins v. Superior 

Court (2007) 41 Cal.4th 1337, 1351-1352; see also Hernandez v. Superior Court (2003) 

112 Cal.App.4th 285, 296-300 [vacating trial court’s order requiring statements from 

plaintiffs demonstrating prima facie showing of causation because it required early and 

unilateral disclosure of expert witness information rather than the mutual and 

simultaneous disclosure contemplated by the discovery statutes]; First State Ins. Co. v. 

Superior Court (2000) 79 Cal.App.4th 324, 330, 333-336 [rejecting trial court’s case 

management order because it required resolution of choice of law before any dispositive 

motion could be filed, which conflicts with statutes authorizing filing of motions for 

summary judgment or summary adjudication].) Thus, “[a]lthough broad in scope, this 

inherent power to fashion novel procedures is not unlimited. A court cannot adopt an 
17

innovative rule or procedure without carefully weighing its impact on the constitutional 

rights of the litigants.” (In re Amber S. (1993) 15 Cal.App.4th 1260, 1264-1265.) 

So too has the use of other motions in limine to hear disguised dispositive motions 

been criticized. For example, a court may employ its inherent powers, including the 

“ ‘inherent power to control litigation and conserve judicial resources,’ ” to use a motion 

in limine to test whether a complaint states a cause of action. (K.C. Multimedia, Inc. v. 

Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 951; see 

Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 284-285.) However, in 

limine motions are designed to prevent admission of evidence where it would be 

impossible to “ ‘ “unring the bell” ’ ” if the evidence is presented to the jury, not to 

replace statutorily prescribed dispositive motions. (Amtower v. Photon Dynamics, Inc.

(2008) 158 Cal.App.4th 1582, 1593.) Nonetheless, trial courts have used motions in

limine to dismiss a cause on the pleadings, to examine the sufficiency of the evidence, or 

to require a party to make an offer of proof tantamount to an opening statement, which in 

effect amounts to a demurrer to the evidence or motion for nonsuit. (Id. at pp. 1593-

1594; see Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 701-702.) 

Reviewing courts are “becoming increasingly wary of this tactic” in large part because 

the procedural shortcuts “circumvent procedural protections provided by the statutory 

motions or by trial on the merits; . . . risk blindsiding the nonmoving party; and, in some 

cases, . . . could infringe a litigant’s right to a jury trial.” (Amtower, supra, at p. 1594.) 

Concerns about procedural shortcuts may also implicate constitutional issues. 

“Both the federal and state Constitutions compel the government to afford persons due 

process before depriving them of any property interest. (U.S. Const., 14th Amend. [‘nor 

shall any state deprive any person of life, liberty, or property, without due process of 

law’]; Cal. Const., art. I, § 7, subd. (a) [‘A person may not be deprived of life, liberty, or 

property without due process of law . . . .’].)” (Today’s Fresh Start, Inc. v. Los Angeles 
18

County Office of Education (2013) 57 Cal.4th 197, 212 (Today’s Fresh Start).) This 

requires that a party at risk of loss be given notice and an opportunity to be heard, “ ‘at a 

meaningful time and in a meaningful manner.’ ” (Ibid.) This is a flexible requirement, 

varying with the circumstances of any given case. (Id. at pp. 212-213.) The function of 

the legal process afforded by these constitutional mandates is to minimize the risk of 

erroneous decisions. (Id. at p. 212.) And, if due process was not afforded before an order 

depriving the party of his or her interest was entered, we must reverse the order. (Koshak 

v. Malek (2011) 200 Cal.App.4th 1540, 1550.) 

3. Analysis.

In determining whether due process was afforded here, we adopt the balancing test 

set forth in Mathews v. Eldridge (1976) 424 U.S. 319, 335 [47 L.Ed.2d 18, 33]. (Today’s 

Fresh Start, supra, 57 Cal.4th at p. 213.) This requires us to consider, “ ‘first, the private 

interest that will be affected by the official action; second, the risk of an erroneous 

deprivation of such interest through the procedures used, and the probable value, if any, 

of additional or substitute procedural safeguards; and, third, the Government’s interest, 

including the function involved and the fiscal and administrative burdens that the 

additional or substitute procedural requirement would entail.’ ” (Ibid.) 

That there is a private interest affected here is of little doubt. “Due process 

requires notice before a dismissal of a case may be entered.” (Lee v. Placer Title Co. 

(1994 ) 28 Cal.App.4th 503, 510; see Cordova v. Vons Grocery Co. (1987) 

196 Cal.App.3d 1526, 1531; see also Wilson v. Sunshine Meat & Liquor Co. (1983) 

34 Cal.3d 554, 561, fn. 7.) For, if a plaintiff’s case is dismissed without due process, that 

party’s right of access to the courts is infringed. (See generally Payne v. Superior Court 

(1976) 17 Cal.3d 908, 914.) Having established that a right requiring procedural due 

process protections is implicated, we consider the remaining factors. 
19

The risk of an erroneous deprivation was high as a result of the procedures 

implemented in this case. Plaintiffs were not provided advance notice of the issues they 

would be asked to address at the hearing, which resulted in a dismissal of their entire 

actions. Rather, they were notified by the trial court two days before the hearing, and one 

week before a multi-month trial was to commence, that it “may” identify issues, with the 

aid of counsel, on which to conduct a Cottle hearing. However, Cottle and the cases that 

have implemented it provided parties weeks or months to collect information to present a 

prima facie case on a select and enumerated issue, and then provided the presenting party 

an opportunity to cure any perceived deficiencies in that presentation. None of that was 

provided here. While also arguing a motion for judgment on the pleadings, and jury 

instructions, plaintiffs were required on a half-day’s notice to present a prima facie case 

on causation and on standard of care, without being given an adequate or meaningful 

opportunity to contact their witnesses or to gather the required information, even from the 

extensive discovery that had already been completed. Had the trial court identified the 

issues it perceived deficient upon reading the trial briefs or even in the notice to counsel, 

it could have continued trial to provide plaintiffs an adequate opportunity to present their 

prima facie case and to cure any deficiencies. Without doing so, plaintiffs did not have 

the requisite meaningful notice and opportunity to avoid dismissal of their entire case. 

The only identifiable governmental interest impacted by the provision of 

additional procedural protections, i.e., advance notice of the issues to be presented and a 

meaningful opportunity to gather evidence to present, are the fiscal and administrative 

burden of conducting trial as scheduled. However, this too could have been ameliorated 

had the trial court identified the issues for which it required a prima facie presentation 

immediately following its review of the trial briefs—apparently the precipitating force 

behind its decision to utilize Cottle to narrow the issues of the case—two full weeks

before trial was to commence. For example, the trial court could have continued trial at 
20

that point, which would have permitted the court to contact jurors and to adjust the 

courthouse schedule to allow time for the Cottle hearing to be noticed and heard, with an 

opportunity to cure any deficiencies before an order was entered. Additionally, this 

interest is minor in contrast to the potential for erroneous dismissal of the entire case 

through the procedures implemented. 

Balancing these factors, on the facts before us, we conclude plaintiffs’ due process 

rights were infringed by the manner in which the trial court noticed and conducted the 

Cottle hearing. Accordingly, we reverse the judgment of dismissal premised on the trial 

court’s July 26, 2013 order finding plaintiffs failed to establish a prima facie case.

B. Judgment on the Pleadings

As noted above, during the pretrial hearing less than a week before trial was to 

commence, Sierra Pacific made an oral motion for judgment on the pleadings as to the 

claims presented by Cal Fire.

11 The gist of the motion was that sections 13009 and 

13009.1, on which Cal Fire’s claims were necessarily premised,12 limited recovery for 

direct liability and did not incorporate common law theories of negligence. Cal Fire

disagreed, arguing use of the word “negligently” in section 13009 incorporates common 

law theories of negligence into permissible grounds for recovery of fire suppression and 

investigation costs. The trial court granted judgment on the pleadings to defendants 

 

11 Beaty and landowner defendants also joined in the motion, and Sierra Pacific argued 

it was applicable to all defendants excepting Howell, Crismon and Bush. 

12 In its complaint, Cal Fire sought to recover its fire suppression costs under sections 

13009 and 13009.1. To that end, it alleged that all defendants violated California Code of 

Regulations, title 14, section 938.8 (requiring inspection following certain timber 

operations) and were negligent in starting the Moonlight Fire and allowing it to spread; 

additionally, against Beaty and the landowner defendants, it alleged negligent 

management and use of land; against Sierra Pacific, Beaty, the landowner defendants, 

and Howell, it also alleged negligent supervision and inspection; and against Sierra 

Pacific alone it alleged negligence based on a peculiar risk. 
21

Sierra Pacific, Beaty, and landowner defendants (leaving only Cal Fire’s claims against 

Howell, Bush, and Crismon). Cal Fire now appeals that order, claiming use of the word 

“negligently” in the statute incorporates common law theories of negligence, including 

vicarious liability, and that the inclusion of a corporation as a “ ‘[p]erson’ ” in section 19 

requires the same conclusion. We conclude the trial court did not err in awarding 

judgment on the pleadings. 

In construing sections 13009 and 13009.1, we extend no deference to the trial 

court’s interpretation, but instead review the question of law regarding statutory 

construction de novo. (John v. Superior Court (2016) 63 Cal.4th 91, 95.) “ ‘Our primary 

task in interpreting a statute is to determine the Legislature’s intent, giving effect to the 

law’s purpose. [Citation.] We consider first the words of a statute, as the most reliable 

indicator of legislative intent.’ ” (Id. at pp. 95-96.) We construe the language in the 

context of the entire statutory framework, with consideration given to the policies and 

purposes of the statute. (Jones v. Superior Court (2016) 246 Cal.App.4th 390, 397.) In 

so construing the statute, we may not “insert what has been omitted, or . . . omit what has 

been inserted.” (Code Civ. Proc., § 1858.) We also recognize that “ ‘ “where a statute, 

with reference to one subject contains a given provision, the omission of such provision 

from a similar statute concerning a related subject is significant to show that a different 

legislative intent existed with reference to the different statutes.” ’ ” (Los Angeles County 

Metropolitan Transportation Authority v. Alameda Produce Market, LLC (2011) 

52 Cal.4th 1100, 1108 (Alameda Produce).) 

At common law, there was no recovery of government-provided fire suppression 

costs; that recovery is purely a creature of statute. (City of Los Angeles v. ShpegelDimsey, Inc. (1988) 198 Cal.App.3d 1009, 1020 (Shpegel-Dimsey).) A governmental 

decision to provide tax-supported services, such as police or fire responses to 

emergencies, is a legislative policy determination. (Id. at p. 1018.) Thus, “ ‘in the 
22

absence of a statute expressly authorizing recovery of public expenditures [(i.e., police, 

fire and other emergency services)], “the cost of public services for protection from fire 

or safety hazards is to be borne by the public as a whole, not assessed against the 

tortfeasor whose negligence creates the need for the service.” ’ ” (Ibid.) Therefore, 

Cal Fire’s ability to recover its fire suppression costs is strictly limited to the recovery 

afforded by statute. 

The statutes in question here, sections 13009 and 13009.1, provide as follows. In 

pertinent part, section 13009, subdivision (a) states that “[a]ny person . . . who 

negligently, or in violation of the law, sets a fire, allows a fire to be set, or allows a fire 

kindled or attended by him or her to escape onto any public or private property . . . is 

liable for the fire suppression costs incurred in fighting the fire and for the cost of 

providing rescue or emergency medical services, and those costs shall be a charge against 

that person. . . .” Section 13009.1 states that “[a]ny person . . . who negligently, or in 

violation of the law, sets a fire, allows a fire to be set, or allows a fire kindled or attended 

by him or her to escape onto any public or private property . . . is liable for both of the 

following: [¶] (1) [t]he cost of investigating and making any reports with respect to the 

fire[;] [and] [¶] (2) [t]he costs relating to accounting for that fire and the collection of 

any funds pursuant to Section 13009, including, but not limited to, the administrative 

costs of operating a fire suppression cost recovery program. . . .” (§ 13009.1, subd. (a).) 

A “person” for purposes of these statutes is “any person, firm, association, organization, 

partnership, business trust, corporation, limited liability company, or company.” (§ 19.) 

As the language of the statute itself does not clearly delineate the impact of the 

inclusion of the term “negligently,” we turn to legislative history for guidance. In 1931, 

the Legislature enacted chapter 790, which provided that an owner whose property was 

damaged could recover from “[a]ny person who: [¶] (1) [p]ersonally or through 

another, and (2) [w]ilfully, negligently, or in violation of law, commits any of the 
23

following acts: (1) [s]ets fire to, (2) [a]llows fire to be set to, (3) [a]llows a fire kindled 

or attended by him to escape to the property, whether privately or public owned, of 

another” or “[a]ny person” who allowed a fire burning on his property to escape to 

another’s property “without exercising due diligence to control such fire.” (Stats. 1931, 

ch. 790, §§ 1-2, p. 1644, italics added.) Chapter 790 also permitted recovery of the 

expenses of fighting such fires “by the party, or by the federal, state, county, or private 

agency incurring such expenses.” (Stats. 1931, ch. 790, § 3, p. 1644.) Prior to this 

enactment, there was no statute authorizing the government to recover its fire suppression 

or investigation costs. 

In 1953, the Legislature enacted chapter 48, codifying section 13007 et seq., 

including, in particular, section 13009, which generally appears to replicate the language 

of the 1931 enactment. (Stats. 1953, ch. 48, §§ 1-3, p. 682.) As enacted, former section 

13009 permitted recovery of “[t]he expenses of fighting any fires mentioned in Sections 

13007 and 13008 . . . against any person made liable by those sections for damages 

caused by such fires.” (Stats. 1953, ch. 48, § 3, p. 682.) At that time, section 13007 

permitted an owner whose property was damaged to recover against “[a]ny person who 

personally or through another wilfully, negligently, or in violation of law, sets fire to, 

allows fire to be set to, or allows a fire kindled or attended by him to escape to, the 

property of another, whether privately or publicly owned . . . .” (Stats. 1953, ch. 48, § 1,

p. 682, italics added.)13 Section 13008 made liable “[a]ny person” who allowed a fire 

 

13 Though section 19, which provides the statutory definition of “person,” had not been 

enacted when the initial statute providing for recovery of fire suppression costs came into 

effect in 1931, it was enacted prior to this 1953 enactment of former sections 13007, 

13008, and 13009. (See Stats. 1939, ch. 60, gen. prov. 19, pp. 483-484, amended by 

Stats. 1994, ch 1010, § 151, p. 6095 [adding “limited liability company” to the statutory 

definition of “person”].) At that time, it included, as it does today, “corporation” as a 

person. (Stats. 1939, ch. 60, gen. prov. 19, p. 484.) The Legislature was presumptively 

aware of this when it enacted section 13009 in 1953. (People v. Scott (2014) 58 Cal.4th 
24

burning on his property to escape to another’s property “without exercising due diligence 

to control such fire.” (Stats. 1953, ch. 48, § 2, p. 682.) Thus, through reference by 

incorporation to section 13007, former section 13009 allowed for recovery against a 

person who acted “personally or through another.” (Stats. 1953, ch. 48, §§ 1, 3, p. 682.)

Then, in 1971, apparently in reaction to the decision in People v. Williams (1963) 

222 Cal.App.2d 152, in which the State was deemed unable to recover its fire suppression 

costs against a defendant who set a fire that burned out of control within the boundaries 

of his own property, the Legislature amended section 13009. (People v. Southern Pacific 

Co. (1983) 139 Cal.App.3d 627, 637 (Southern Pacific).) As amended, former section 

13009 read, in pertinent part: “Any person who negligently, or in violation of the law, 

sets a fire, allows a fire to be set, or allows a fire kindled or attended by him to escape 

onto any forest, range or nonresidential grass-covered land is liable for the expense of 

fighting the fire and such expense shall be a charge against that person.” (Stats. 1971, 

ch. 1202, § 1, p. 2297.) As relevant to our present inquiry, while the 1971 amendment 

addressed the boundary limitation identified in Williams, the amendment also removed 

the reference by incorporation to section 13007’s language imposing liability on any 

person who acted “personally or through another.” (Compare Stats. 1953, ch. 48, § 1, 

p. 682 with Stats. 1971, ch. 1202, § 1, p. 2297.) 

None of the subsequent amendments to section 13009 in 1982, 1987, 1992, or 

1994 have re-inserted or otherwise incorporated the “personally or through another” 

language that would expressly provide for the application of vicarious liability concepts. 

(Cf. Stats. 1982, ch. 668, § 1, p. 2738; Stats. 1987, ch. 1127, §1, p. 3846; Stats. 1992, ch. 

427, § 91, pp. 1627-1628; Stats. 1994, ch. 444, § 1, pp. 2410-2411.) Neither did the 

Legislature include such language in section 13009.1, when it was added in 1984 or 

 

1415, 1424 [ “the Legislature ‘ “is deemed to be aware of statutes and judicial decisions 

already in existence, and to have enacted or amended a statute in light thereof.” ’ ”) 
25

amended in 1987. (§ 13009.1, added by Stats. 1984, ch. 1445, § 1, pp. 5058-5059, as 

amended by Stats. 1987, ch. 1127, § 2, pp. 3846-3847.) Instead, as relevant to our 

inquiry, both sections 13009 and 13009.1 persist in imposing liability on “[a]ny person 

. . . who negligently, or in violation of the law, sets a fire, allows a fire to be set, or allows 

a fire kindled or attended by him or her to escape onto any public or private property

. . . .” (§§ 13009, subd. (a); 13009.1, subd. (a).) In contrast, section 13007 remains as it 

was codified in 1953 and still permits liability to be imposed on “[A]ny person who 

personally or through another wilfully, negligently, or in violation of law, sets fire to, 

allows fire to be set to, or allows a fire kindled or attended by him to escape to, the 

property of another . . . .” (§ 13007, italics added.) 

Cal Fire argues we should not construe the presence of the “personally or through 

another” language in section 13007 and its absence in sections 13009 and 13009.1 as 

indicative of any legislative intent to preclude application of vicarious liability concepts 

in the latter sections. We disagree. Cal Fire’s claim that the language is surplusage in 

section 13007 is unavailing. For, “[i]t is a maxim of statutory interpretation that courts 

should give meaning to every word of a statute and should avoid constructions that would 

render any word or provision surplusage.” (Tuolumne Jobs & Small Business Alliance v. 

Superior Court (2014) 59 Cal.4th 1029, 1038.) Moreover, the presence of the language 

in section 13007, a similar statute on a related subject, and its omission from sections 

13009 and 13009.1 is significant in ascertaining legislative intent from the statutes’ 

language. (Alameda Produce, supra, 52 Cal.4th at p. 1108.) Nor do we find it 

incongruous that the Legislature may have afforded a longer reach in recovery efforts to 

an owner whose property was damaged than it afforded those who expended funds 

fighting or investigating the fire. Therefore, based on the plain language of the statute, 

when read in the context of the statutory framework as a whole, we conclude the 
26

Legislature did not incorporate concepts of vicarious liability into sections 13009 or 

13009.1. 

We also reject Cal Fire’s contention that other common law theories of direct 

liability including negligent supervision, negligent hiring, negligent inspection, negligent 

management and use of property, and peculiar risk have been grafted into sections 13009 

and 13009.1 through inclusion of the term “negligently.” The adverb “negligently” 

carries the connotation that the tortious actor “ ‘failed to comply with a standard of 

conduct with which any ordinary reasonable man could and would have complied: a 

standard requiring him to take precautions against harm.’ ” (Black’s Law Dict. (10th ed. 

2009) p. 1198, col. 2.) Here, “negligently” is an adverb modifying three potential verb 

phrases: (1) sets a fire, (2) allows a fire to be set, or (3) allows a fire kindled or attended 

by him or her to escape. (§§ 13009, subd. (a), 13009.1, subd. (a).) To read the statute as 

permitting liability where a “person” negligently supervised, managed, hired, or 

inspected another who set or allowed to be set a fire, is simply too attenuated a 

construction to be plausible. Moreover, Cal Fire has not cited for this court any 

published case that has imposed liability under such circumstances, and we have not 

found any such cases. 

The most apropos potential case we encountered was County of Ventura v. 

Southern California Edison Co. (1948) 85 Cal.App.2d 529. There, a power company was 

found to be liable to the county and fire protection district for costs of fighting a fire that 

occurred when a power line came into contact with a telephone line and pole, all of which 

were owned by the power company, as a result of the power company’s negligent 

construction and maintenance of its lines. (Id. at p. 531.) The power company argued the 

statute in effect, which imposed liability for the expense of fighting fires on “[a]ny person 

who: (1) [p]ersonally or through another, and (2) [w]ilfully, negligently, or in violation 

of law, . . . (1) [s]ets fire to, (2) [a]llows fire to be set to, [or] (3) [a]llows a fire kindled or 
27

attended by him to escape to the property . . . of another . . . ,” did not provide a basis for 

liability against the power company. (Id. at pp. 531-532, italics added.) The Court of 

Appeal disagreed, finding that while liability perhaps could not be found based on the 

first prong—sets fire to—without there being some direct act, liability could be premised 

based on the second prong—allows fire to be set to—where the allegedly negligent actor 

could “be charged with knowledge of the condition of its equipment, [and] took no steps 

to prevent the occurrence of fire, which was the reasonably foreseeable consequence of 

that condition.” (Southern California Edison, at pp. 532-533.) However, liability in that 

case was not based on section 13009 in its present form, but on a former statute that 

allowed recovery against a person who acted “personally or through another,” and still 

imposed liability not on a third party with some responsibility to supervise or oversee the 

actor, but on the actor itself that failed to properly maintain its own equipment that 

directly caused the fire. It is, therefore, unavailing to extend liability in this case to 

defendant landowners, the property manager (Beaty), or timber purchaser (Sierra 

Pacific). 

We are not persuaded otherwise by the cases cited by our esteemed colleague in 

his dissent or by the cases proffered by Cal Fire. For instance, as the dissent 

acknowledges, Haverstick v. Southern Pacific Co. (1934) 1 Cal.App.2d 605, though it 

affirms a judgment in favor of the plaintiff landowner for property damage and personal 

injuries against the railroad for the negligence of its employees, the opinion does not 

make clear or indeed even mention which section of chapter 790 was the basis of the 

plaintiff’s claim for damages. (Dis. opn., post, at pp. 2-3.) It is axiomatic that cases are

not authority for propositions not considered therein (Siskiyou County Farm Bureau v. 

Department of Fish & Wildlife (2015) 237 Cal.App.4th 411, 437, fn. 11), and here, 

because it is not articulated in the opinion, we cannot say whether Haverstick is 

interpreting the section of chapter 790 that premised liability on direct actions of a person 
28

or actions engaged in personally or through another. People ex rel. Grijalva v. Superior 

Court (2008) 159 Cal.App.4th 1072 did not have to address whether there was legal 

responsibility for a fire because the real parties in interest admitted responsibility (id. at 

p. 1075); indeed, it focused on whether the affirmative defenses of comparative fault or 

failure to mitigate damages could be raised against the government in light of its 

immunity (id. at pp. 1077-1079). And, People v. Southern Cal. Edison Co. (1976) 

56 Cal.App.3d 593, 596 concerned only whether it was error to award a new trial based 

on a particular declaration of counsel purporting to establish a claim of juror misconduct, 

and whether it was error to instruct the jury on the amount of firefighting expenses 

incurred by the State in fighting a particular fire. Southern Pacific, supra, 

139 Cal.App.3d 627 involved a fire that started on railroad property and spread to 

surrounding property. The pertinent question presented to the court in Southern Pacific 

was whether a jury instruction that permitted liability for fire suppression costs based on 

the defendant’s failing to extinguish a fire that it was not found to have kindled was 

erroneous. (Id. at pp. 636-637.) Southern Pacific concluded that because section 13009 

did not incorporate the language of section 13008, the instruction was erroneous. 

(Southern Pacific, at p. 638.) It, however, found the error harmless because there was 

substantial evidence the fire was likely to have been caused by sparks or particles emitted 

by trains. (Id. at pp. 638-639.) In its interpretation of former section 13009, ShpegelDimsey, supra, 198 Cal.App.3d at pages 1019 through 1020 held only that the City could 

not recover fire suppression costs because the defendant was not one of the classes of 

persons held liable and the City’s property was not one of the classes of property 

protected by the statute as it existed at the time of the fire in 1980. 

Moreover, subdivisions (a)(2) and (3), added to sections 13009 and 13009.1 in 

1987, extended liability for cost recovery to “[a]ny person . . . (2) other than a mortgagee, 

who, being in actual possession of a structure, fails or refuses to correct, within the time 
29

allotted for correction, despite having the right to do so, a fire hazard prohibited by law, 

for which a public agency properly has issued a notice of violation respecting the hazard, 

or (3) including a mortgagee, who, having an obligation under other provisions of law to 

correct a fire hazard prohibited by law, for which a public agency has properly issued a 

notice of violation respecting the hazard, fails or refuses to correct the hazard within the 

time allotted for correction, despite having the right to do so . . . .” (Stats. 1987, ch. 1127, 

§§ 1-2, pp. 3846-3847.) Were it possible for section 13009 or 13009.1 to be applied to 

one who did not through his direct action proximately cause the fire, i.e., to set a fire or 

allow it to be set, there would have been no cause to amend the statute to extend liability 

to one who has the right and responsibility to cure a noticed fire hazard but fails to do so. 

That person, whether he or she is in actual possession as owner, lessor, lessee, mortgagor, 

or mortgagee, would have been liable for his or her negligent use and management of the 

property under the “allows a fire to be set” prong of subdivision (a)(1) of sections 13009 

and 13009.1. We will not read sections 13009 and 13009.1 in such a way as to make 

inclusion of subdivisions (a)(2) or (3) of sections 13009 or 13009.1 nugatory. (Harris v. 

Superior Court (2011) 53 Cal.4th 170, 188 [we avoid statutory interpretations that 

“render part of an enactment nugatory”].) 

Therefore, we conclude neither that inclusion of the term “negligently” in sections 

13009 and 13009.1 nor that the statutory definition of “person” to include a corporation,

incorporates common law theories of negligence into the statutes. And further that 

sections 13009 or 13009.1 do not provide for vicarious liability. Accordingly, the trial 

court did not err in awarding judgment on the pleadings to Sierra Pacific, Beaty, and 

landowner defendants with regard to Cal Fire’s claims. On remand following our 

reversal of the judgment of dismissal premised on the trial court’s July 26, 2013 order 

finding plaintiffs failed to establish a prima facie case (see pt. I.A.3., ante, at pp. 18-20), 

Cal Fire is barred from pursuing claims against any defendant based on common law 
30

theories of negligence that have not been expressly included in sections 13009 or 

13009.1. In reality, for reasons discussed in unpublished part II.B.4. of this opinion, post,

we suspect it is unlikely there will be any opportunity on remand for Cal Fire to pursue 

claims against any defendant. [END OF FULLY PUBLISHED PT. I.]

II. Challenges to Postjudgment Awards*

Plaintiffs also challenge the trial court’s postjudgment awards, specifically the 

orders awarding costs to defendants as prevailing parties and the orders mandating 

Cal Fire to pay attorney fees and expert fees and expenses to defendants either as 

prevailing party awards or as discovery sanctions. Cal Fire also challenges any order 

awarding costs of proof based on disproving denials to requests for admission. We 

conclude any order for costs as prevailing parties premised on the Cottle proceeding are 

necessarily vacated, and because the trial court did not apportion costs, the order 

awarding costs based on the judgment on the pleadings is remanded for further 

proceedings. As to discovery sanctions, we conclude it was not error for the trial court to 

impose monetary and terminating sanctions, but the manner in which it imposed 

monetary sanctions was an abuse of discretion. Therefore, we remand for further 

proceedings to determine an appropriate sanction award. However, we conclude it was 

error for the trial court to award attorney fees to defendants as prevailing parties against 

Cal Fire. Finally, there is no order awarding costs of proof for us to review on appeal. 

A. Costs

The trial court entered three separate orders awarding costs. To Beaty and 

landowner defendants, the trial court awarded costs in the sum of $583,173.15. To Sierra 

Pacific, it entered an award of costs in the sum of $2,852,209.34. And, to defendants 

Howell, Bush, and Crismon, the trial court awarded costs in the sum of $417,604.06. The 

 

* See footnote, ante, page 1.
31

trial court did not apportion the costs awards among the multiple plaintiffs but instead 

made each plaintiff jointly and severally liable for the entire amount of each costs award.

In light of our reversal of the trial court’s judgment of dismissal premised on its 

finding that plaintiffs had failed to establish a prima facie case (the Cottle proceeding), its 

postjudgment order awarding costs to defendants as prevailing parties is necessarily 

vacated. (Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 314 

[“A disposition that reverses a judgment automatically vacates the costs award in the 

underlying judgment even without an express statement to this effect.”].) However, as 

discussed above, the trial court properly awarded judgment on the pleadings to 

defendants Sierra Pacific, Beaty, and landowner defendants and against plaintiff Cal Fire. 

Therefore, an award of costs to defendants Sierra Pacific, Beaty, and landowner 

defendants as prevailing parties against Cal Fire is appropriate. Nonetheless, because the 

trial court’s orders awarding costs did not differentiate between costs incurred by 

defendants in response to Cal Fire’s action as opposed to other plaintiffs’ actions, we are 

unable to ascertain which costs, if any, were properly awarded to Sierra Pacific, Beaty, 

and landowner defendants as prevailing parties against Cal Fire. On remand, the trial 

court may award statutorily allowable costs to Sierra Pacific, Beaty, and landowner 

defendants to the extent these defendants incurred costs defending against Cal Fire’s

action. (Code Civ. Proc., §§ 1032, 1033.5.) 

B. Discovery Sanctions

The trial court entered postjudgment discovery sanctions against Cal Fire

including both monetary sanctions totaling $28,765,365.89 and terminating sanctions 

based on its finding that Cal Fire had engaged in pervasive and gross discovery abuses. 

The trial court awarded to Beaty and landowner defendants the sum of $6,146,901.41 

(comprised of attorney fees and expert witness fees), as an alternative to an award of

attorney fees, as a prevailing party. The trial court awarded cumulatively to Howell, 
32

Bush, and Crismon, as an alternative to a prevailing party attorney fee award, the sum of 

$1,571,741.28 (comprised of attorney fees and expert witness fees adjusted by a lodestar 

factor of 1.2). Finally, it awarded to Sierra Pacific sanctions of $21,100,723.20

(comprised of attorney fees and expert witness fees, costs, and expenses adjusted by a 

lodestar factor of 1.2), again as an alternative to an attorney fee award.14

On appeal, Cal Fire argues the trial court did not have jurisdiction to impose 

terminating sanctions, that the terminating sanctions imposed were improperly punitive 

and not factually supported, and that monetary sanctions were improper because the trial 

court did not make the requisite findings required by Code of Civil Procedure section 

2023.030. We conclude the trial court had jurisdiction to enter terminating and monetary 

sanctions and it did not err in imposing terminating sanctions. However, the manner in 

which it imposed monetary sanctions was an abuse of discretion.

1. Additional background.

In awarding discovery sanctions, the trial court found that beginning in July 2010 

and continuing through 2013, Cal Fire committed multiple acts that amounted to a “gross 

abuse” of the Civil Discovery Act. Specifically, the trial court found that Cal Fire

investigator Joshua White engaged in spoliation when he destroyed his field notes; he 

also created a false “Origin and Cause Investigation Report” (the Moonlight report), the 

false narrative of which was injected in the litigation in July 2010 when Cal Fire provided 

the Moonlight report—in lieu of factual statements—in its response to interrogatories; 

and White continued the same false narrative by testifying untruthfully at his deposition 

 

14 This amount does not include the award of $650,634 adjusted by a 1.2 lodestar (for a 

total of $780,760.80) ordered by the trial court to Sierra Pacific as fees incurred in 

making its motion for fees, expenses, and/or sanctions. Thus, though the total amount the 

trial court ordered Cal Fire to pay to Sierra Pacific in its order awarding fees, expenses, 

and/or sanctions was $21,881,484, the total amount of sanctions and prevailing party 

attorney fees awarded was $21,100,723.20. 
33

in November 2010. Thus, the trial court concluded monetary sanctions as a result of 

discovery abuses began accruing in July 2010 in the form of all defense expenses 

incurred from that point forward, including all attorney fees. Moreover, the trial court 

concluded, “[a]ll of Defendants’ defense expenses are, in one way or another, 

inextricably intertwined with the falsehoods and omissions in the Origin and Cause 

[Investigation] Report.” 

In addition to monetary sanctions, the trial court found terminating sanctions were 

appropriate because “Cal Fire and its counsel engaged in a stratagem of obfuscation that 

infected virtually every aspect of discovery in this case.” The trial court noted that the 

pattern and practice of obfuscation began during discovery and continued even after the 

trial court had entered judgment and found Cal Fire’s “ ‘willful,’ ” “repeated and 

egregious” discovery abuses impaired defendants’ rights and “ ‘threatened the integrity of 

the judicial process.’ ” The trial court also found that less severe sanctions would be 

unworkable and ineffectual because Cal Fire’s discovery abuses had “permeated nearly 

every single significant issue in this case.”

The trial court found that “Cal Fire’s actions initiating, maintaining, and 

prosecuting this action, to the present time [(postjudgment)], [are] corrupt and tainted. 

Cal Fire failed to comply with discovery obligations, and its repeated failure was willful.” 

In concluding discovery sanctions were appropriate, the trial court stated, “In the end, 

Cal Fire and its counsels’ vast array of discovery abuses suggests that they perceive 

themselves as above the rule of law. With their abuses infecting virtually every aspect of 

the discovery process, from false testimony, to pervasive false interrogatory responses, to 

spoliation of critical evidence, to willful violations of the Court’s Orders requiring 

production of WiFITER [(Wildland Fire Investigation Training and Equipment Fund)] 

documents, Defendants and the Court simply have no reason to believe that these 

Defendants can receive, or could ever have received, a fair trial under these 
34

circumstances.” In ordering terminating sanctions, the trial court relied on authority 

provided by Code of Civil Procedure section 2023.030 in addition to a separate line of 

case law, “as augmented by the inherent powers of the Court,” to issue the “most severe 

sanction” to dismiss the case with prejudice because it found Cal Fire “engaged in 

misconduct . . . that is deliberate, that is egregious, and that renders any remedy short of 

dismissal inadequate to preserve the fairness of the trial.”15 

In reaching these conclusions, the trial court highlighted multiple exemplar 

discovery abuses it found were committed by Cal Fire.

a. WiFITER fund documents

Cal Fire was ordered by the trial court to produce all responsive documents 

relating to the “Wildland Fire Investigation Training and Equipment Fund” (the 

WiFITER fund) by April 30, 2013.16 At that time it produced 7,206 responsive 

documents amounting to 27,915 pages. During argument of the motions in limine a 

couple months later, Cal Fire argued any evidence concerning the WiFITER fund should 

be excluded at trial as irrelevant because defendants could not point to anything in the 

discovery they had received that demonstrated the WiFITER fund was improper or 

 

15 Contrary to Cal Fire’s claim, we do not believe the trial court’s rulings on discovery 

sanctions are an improper decision on the merits of the case depriving Cal Fire of its right 

to a jury trial. Rather, the trial court is required to consider the evidence presented to 

determine whether a misuse of the discovery process has occurred. Here, the claimed 

misuses included false testimony by a witness and false discovery responses. Thus, the 

trial court was obliged, upon receiving defendants’ motions for sanctions, to consider and 

weigh the evidence presented to it to make a determination on the merits of the claims of 

discovery abuse. 

16 WiFITER was a fund established without statutory authorization by Cal Fire and 

managed by the California District Attorneys Association. The fund, which was 

established to promote fire investigations and improve training, collected more than $3.6 

million dollars through civil cost recovery negotiated settlements before it was closed in 

April of 2013 following a report from the State Auditor. 
35

illegal, or that it provided any incentive for Cal Fire to conduct its fire investigations for 

any purpose other than to discover the truth. Based on Cal Fire’s representations and 

argument, and the evidence known to defendants at that time, the trial court granted 

Cal Fire’s motion in limine to exclude any reference to the WiFITER fund. 

Then, on October 21, 2013, counsel for Sierra Pacific informed counsel for 

Cal Fire that it had learned from an independent source (a State Auditor’s report issued 

Oct. 15, 2013) of a responsive document that had not been produced by Cal Fire. As 

subsequently ordered by the trial court, on October 31, 2013, Cal Fire produced “a 

jumbled mix of documents”—more than 5,000 pages—that ought to have been produced 

by the April 30, 2013 deadline. Thereafter, on November 22, 2013, after Cal Fire had 

represented to the trial court that it had produced “everything,” Cal Fire produced an 

additional 2,000 pages of documentation, in violation of the trial court’s first and second 

orders to produce responsive documents.

The Attorney General presented various theories why the documents were not 

timely produced, notably, error by Attorney General staff in inadvertently failing to mark 

pages for production or in inadvertently skipping clumps of pages in their review or 

software errors in marking pages for production during Attorney General staff review. 

Nonetheless, the trial court found that Cal Fire’s belated production had violated 

discovery rules and had prejudiced defendants in their ability to adequately conduct 

depositions, argue, and support or oppose motions, strategize their case, and engage in 

settlement negotiations because they were lacking relevant information. The trial court 

also found it would have ruled differently on the aforementioned motion in limine if the 

information had been disclosed timely and that “some of these [belatedly produced] 

documents belie Cal Fire’s own representations to this Court that there was no evidence 

whatsoever that the WiFITER fund was improper.” The trial court concluded Cal Fire’s 

failure to produce a large volume of relevant documents in violation of the trial court’s 
36

repeated orders to do so, even if inadvertent, demonstrated a lack of seriousness on behalf 

of Cal Fire in fulfilling its obligation to comply with the discovery rules that amounted to 

a gross violation of the rules and an affront to the trial court.

b. Lead investigator’s deposition testimony

The trial court noted there was a “significant dispute between the parties as to 

whether the investigators properly met the standard of care associated with wildland fire 

origin and cause investigations,” and noted that it was not the trial court’s role in this 

context to resolve this dispute. Nonetheless, in the context of determining whether 

discovery sanctions should be imposed, the trial court was bound to consider “whether 

Cal Fire abused the legal process through the false testimony of its lead investigator on 

the Moonlight Fire, Joshua White.” White and the United States Forest Service 

investigator, Dave Reynolds, who conducted the joint origin and cause investigation 

together, were the primary scene investigators. They began processing the scene on 

September 4, 2007, and identified two points of origin the following morning and labeled 

those points as E-2 and E-3 in the Moonlight report. When asked why White did not 

mark the E-2 or E-3 points with a white flag (which is indicated by the Moonlight report 

as a marker for either evidence or a point of origin), take any photographs to document 

those sites as points of origin, or otherwise document the “most important points in his 

investigation” until three days later, White provided no explanation and merely 

responded, “I don’t know.” Neither could Reynolds explain why there were five 

photographs, produced in discovery but not attached to the Moonlight report, taken the 

morning of September 5, 2007, from two selected reference points that seem to center on 

a white flag, or why the only GPS measurement taken was from the rock directly adjacent 

to that white flag. 

White was able to explain the purpose of the blue, red, and yellow indicator flags 

seen in the photographs, but denied even seeing the white flag, which the trial court 
37

acknowledged was more readily seen when viewed enlarged on a computer screen. After 

being shown the image in that manner, White retracted his assertion that there was no 

white flag but continued to profess ignorance of how the flag came to be there. He 

persisted in denying that he placed the flag, could not explain why it was there, and also 

maintained he was unaware that Reynolds had placed any white flag for any reason. 

Neither White nor Reynolds recalled placing any white flags to mark evidence or points 

of origin, though Reynolds posited the white flag was “very likely . . . a flag [he] put 

down but . . . discounted . . . later.” Additionally, the trial court found that none of the 

photographs omitted from the Moonlight report demonstrates any interest in points E-2 

and E-3, which White identified in the report as the points of origin. 

White also disavowed knowledge of a “Fire Origin” sketch—prepared by 

Reynolds—which depicts the two reference points that coincide with the reference points 

of the omitted photographs, and distance and bearing measurements from those reference 

points that intersect at a labeled point of origin marked with an “x” in the same location 

as the white flag depicted in the omitted photographs, even though photos indicate White 

would have at least seen the sketch when he took photographs of metal fragments. In 

another matter, White had testified that to locate a point of origin, one would establish 

two reference points and take measurements, and that this would be “ ‘the very 

foundation of an origin and cause report.’ ” (Italics omitted.) Nonetheless, here White 

testified he did not know where the measurements denoted on the sketch intersected, 

denied having seen the sketch until after the Moonlight report was complete, and 

indicated he did not learn of the sketch until sometime in 2008.

The trial court explained that White’s testimony on the “most central issues” in the 

case was not credible, demonstrated Cal Fire’s pattern of obfuscation and bad faith denial 

of the truth during discovery, and greatly increased the expense of litigation because 

“[h]ad [the investigators] testified truthfully from the start, as required, [fn. omitted]
38

Defendants would have likely spent nothing, or very little, as the case most likely could 

not have advanced.” The trial court also castigated Cal Fire’s lead counsel for failing to 

intervene to stop its witnesses from testifying untruthfully. Specifically, Reynolds had 

discussed whether there was a white flag in a photograph during a meeting with counsel 

but later denied seeing the flag in the photo when placed under oath in his deposition. 

The trial court was similarly insulted by Cal Fire’s willingness to present a declaration 

from White even after the case was dismissed wherein he continued to advance his 

“absurd[]” deposition testimony regarding the white flag.

c. Falsification of interview statements

(i) J.W. Bush interview

White and Reynolds interviewed Bush, a Howell employee working on the day the 

Moonlight Fire began, on two occasions. The first interview, conducted September 3, 

2007, was summarized but was not recorded. The second interview, on September 10, 

2007, was both recorded and summarized. The summaries were incorporated into the 

Moonlight report, which was provided in lieu of a narrative in discovery responses, and 

the tape-recording of the second interview was provided in discovery. 

In his summary of the September 3, 2007 Bush interview, Reynolds claims Bush 

attributed the cause of the fire to a Caterpillar bulldozer’s tracks scraping rock. However, 

in the September 10, 2007 interview, as revealed by a transcript of the interview 

recording produced in discovery, when asked whether he ever believed that to be the 

cause of the fire, Bush flatly denied having that belief and denied having told anyone that 

a rock strike started the fire. Nonetheless, in White’s summary of the September 10, 

2007 Bush interview, which was incorporated into the Moonlight report provided as a 

discovery response to interrogatories, White indicated “ ‘Bush reiterated the same 

information he had provided to . . . Reynolds,’ ” i.e., that the fire was caused by a 

bulldozer striking a rock. When White was asked during his deposition about the 
39

inconsistency between his summary and the transcript of the recorded interview he 

offered no explanation for the discrepancy.

(ii) Ryan Bauer interview

The summary of the interview with Ryan Bauer, who was cutting firewood with 

an altered chainsaw in the area near where the Moonlight Fire began, included by White 

in the Moonlight report, omits Bauer’s unsolicited, demonstrably false alibi in which he 

volunteered, “ ‘I was with my girlfriend all day. She can verify that if I’m being blamed 

for the fire.’ ” Rather, the Moonlight report indicates Bauer noticed the fire from his 

girlfriend’s house and had gone toward the fire to see if he could assist in removing 

equipment. The omission of Bauer’s voluntary statement renders the Moonlight report 

misleading with respect to his potential involvement. The Moonlight report was provided 

as an interrogatory response in lieu of a particularized response, though the recording of 

the interview was produced in discovery. Therefore, the trial court found, “[h]ad 

Defendants relied on Cal Fire’s verified interrogator[y] [responses], this information 

would never have been discovered.” 

(iii) Red Rock lookout interviews

On the day the fire started, Caleb Lief was manning the nearest federal lookout 

tower, known as Red Rock. The Moonlight Fire was reported from this tower at 2:24 

p.m. At about 2:00 p.m., another federal employee, Karen Juska, went to the tower to 

bring supplies and for maintenance. When she walked up the steps to the tower, she

found Lief standing on the catwalk of the tower urinating on his bare feet, supposedly as 

a homeopathic cure to athlete’s foot fungus. When she walked into the cabin at the 

tower, she spied a glass marijuana pipe, which Lief placed in his back pocket; and, when 

he handed her the radio to repair, she smelled a heavy odor of marijuana on Lief’s hand 

and on the radio. 
40

None of this information, which the trial court deemed relevant to the inquiry 

whether Lief was properly performing his function, was contained or referenced in the 

written summaries of the interviews of Lief and Juska conducted and prepared by 

Reynolds’s replacement, United States Forest Service special agent Diane Welton. The 

summaries are incorporated in Cal Fire’s verified interrogatory responses in lieu of 

factual statements. The record indicates White learned of Lief’s conduct sometime in 

2008, but did not feel he had sufficient information to include it in the Moonlight report. 

Additionally, Juska testified Welton instructed her not to speak of these issues prior to 

her interview, and her draft report indicated she was asked to omit information because 

Lief’s conduct was not being investigated. 

d. Spoliation of evidence

White destroyed his field notes prepared during his investigation, a fact which he 

attempted to justify because his “ ‘field notes were destroyed only after the information in 

them was transferred to his Report [(the Moonlight report)], which was and is the 

common practice’ ” and that he “ ‘transferred all of the case file information to his laptop 

computer, so all this electronic information [is] in fact preserved.’ ” The trial court 

expressly found White not to be a credible witness in this regard. As proof supporting 

this finding, the trial court cited White’s failure to record any information in the 

Moonlight report regarding placement of the white flag, photographs taken of the white 

flag, measurements and a GPS reading of the location of the rock where the white flag 

was placed, or the sketch in which the flag location was marked as the point of origin. 

Defendants discovered this all happened prior to the release of the scene only through 

discovery of Reynolds’s notes from the United States Forest Service.

Additionally, because White had destroyed his copious field notes, the trial court 

found he was able to effectively and conveniently escape meaningful cross-examination 

because he could claim a lapse of memory when confronted with inconsistencies. White 
41

claimed not to remember the white flag, not to remember learning of the marijuana 

paraphernalia and odor at the Red Rock lookout, and not to remember why his report of 

the September 10 interview with Bush is directly opposite of the transcript of that 

interview. The trial court deduced that had the notes not been destroyed, White’s intent 

may have been revealed. That Cal Fire has since made it an official practice to destroy 

field notes is not helpful to Cal Fire’s position in defending White’s voluntary spoliation 

of evidence in the present case. 

e. Inclusion of other false origin and cause reports

Incorporated in the Moonlight report was a report about another fire—the Lyman 

Fire. The Moonlight report indicated that the investigation of the Lyman Fire revealed 

that it too was ignited when a bulldozer operated by a Howell employee struck a rock. 

However, the lead investigator of the Lyman Fire flatly contradicted that conclusion by 

testifying that the cause of the Lyman Fire was undetermined. The false report about the 

Lyman Fire was included in verified interrogatory responses in lieu of narrative factual 

statements.

2. Legal Principles.

As noted above, the trial court relied on two separate sources of authority to 

impose discovery sanctions on Cal Fire: statutory authority provided by the Civil 

Discovery Act and common law authority premised on the court’s inherent authority as 

described in Slesinger, supra, 155 Cal.App.4th 736. The trial court appeared to premise 

its award of monetary sanctions on the statutory authority alone, but its order imposing 

terminating sanctions was based on both sources of its authority. Thus, we discuss both 

the common law and statutory authority of the trial court to impose sanctions for 

discovery abuses. 

Code of Civil Procedure section 2023.030 permits the trial court to impose as 

sanctions against anyone who has engaged in a misuse of the discovery process monetary 
42

sanctions, issue sanctions, evidence sanctions, terminating sanctions, or contempt 

sanctions. Code of Civil Procedure section 2023.010 provides that the following, among 

others, are misuses of the discovery process: failing to respond or to submit to an 

authorized method of discovery; making, without substantial justification, an 

unmeritorious objection to discovery; making an evasive response to discovery; and 

disobeying a court order to provide discovery. Other sanctionable discovery abuses 

include providing false discovery responses and spoliation of evidence. (Williams v. Russ 

(2008) 167 Cal.App.4th 1215, 1223 [terminating sanctions for intentional spoliation of 

evidence]; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 333-334 [sanctions for 

willfully false discovery responses].) 

Under this statutory scheme, the trial court has broad discretion in selecting the 

appropriate sanction, and we must uphold the trial court’s determination absent an abuse 

of discretion. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (Los 

Defensores).) Thus, we will reverse the trial court only if it was arbitrary, capricious, or 

whimsical in the exercise of that discretion. (Ibid.) As pertinent here, monetary 

sanctions, in an amount incurred, including attorney fees, by anyone as a result of the 

offending conduct, must be imposed unless the trial court finds the sanctioned party acted 

with substantial justification or the sanction is otherwise unjust. (Code Civ. Proc., 

§ 2023.030, subd. (a).) However, terminating sanctions are to be used sparingly because 

of the drastic effect of their application. (Lopez v. Watchtower Bible & Tract Society of 

New York, Inc. (2016) 246 Cal.App.4th 566, 604 (Lopez); see Newland v. Superior Court 

(1995) 40 Cal.App.4th 608, 613-616.) Thus, under the statutory scheme, trial courts 

should select sanctions tailored to the harm caused by the misuse of the discovery process 

and should not exceed what is required to protect the party harmed by the misuse of the 

discovery process. (Lopez, supra, at p. 604.) Therefore, sanctions are generally imposed 

in an incremental approach, with terminating sanctions being the last resort. (Ibid.) 
43

However, even under the Civil Discovery Act’s incremental approach, the trial court may 

impose terminating sanctions as a first measure in extreme cases, or where the record 

shows lesser sanctions would be ineffective. (Lopez, at pp. 604-605; see Van Sickle v. 

Gilbert (2011) 196 Cal.App.4th 1495, 1516-1519; Miranda v. 21st Century Ins. Co. 

(2004) 117 Cal.App.4th 913, 928-929.) 

Similarly, there exists a line of case law that authorizes the imposition of 

terminating sanctions as a first remedy based on the inherent power of the court in certain 

circumstances. In Slesinger, supra, 155 Cal.App.4th 736, a private investigator hired by 

the plaintiff entered onto the defendant’s private property and trespassed into the facility 

that disposed of the defendant’s confidential and privileged documents, improperly 

removed documents from both locations, and provided those documents to the plaintiff. 

The plaintiff then repeatedly disavowed knowledge of how it got those documents, 

claimed they were not used in the litigation, and failed to produce the documents in 

discovery despite appropriate requests for production. (Id. at pp. 741, 744-747, 768.) 

Based on this deliberate and egregious wrongdoing and the trial court’s perception that 

no other remedy would adequately address the plaintiff’s misconduct, the trial court 

exercised its inherent authority to protect the integrity of the judicial process and issued 

terminating sanctions against the plaintiff. (Id. at p. 756.) Slesinger upheld the trial 

court’s exercise of discretion in imposing terminating sanctions based on the plaintiff’s 

conduct, holding that “when a plaintiff’s deliberate and egregious misconduct makes any 

sanction other than dismissal inadequate to ensure a fair trial, the trial court has inherent 

power to impose a terminating sanction.” (Id. at pp. 740; see id. at pp. 765, 777.) 

Under either schema, in reviewing the trial court’s determination, “[w]e defer to 

the court’s credibility decisions and draw all reasonable inferences in support of the 

court’s ruling.” (Lopez, supra, 246 Cal.App.4th at p. 604.) To the extent the trial court’s 

decision to issue sanctions depends on factual determinations, we review the record for
44

substantial evidence to support those determinations. (Los Defensores, supra,

223 Cal.App.4th at p. 390.) Thus, our review “ ‘begins and ends with the determination 

as to whether, on the entire record, there is substantial evidence, contradicted or 

uncontradicted, which will support the determination [of the trial court].’ ” (Id. at 

pp. 390-391.) It is with these principles in mind that we review the trial court’s finding 

that Cal Fire willfully misused the discovery process. 

3. Monetary sanctions.

We are not persuaded there is substantial evidence to support a finding that 

Cal Fire engaged in a misuse of the discovery process by providing an origin and cause 

report that did not include information regarding what happened at the Red Rock lookout 

tower given the evidence relating to the timing and circumstances of White’s learning 

about Lief’s actions and history. Neither are we persuaded that omission of Bauer’s 

unsolicited false alibi amounted to a falsehood rendering presentation of the Moonlight 

report a misuse of the discovery process, though the omission certainly made the 

Moonlight report misleading regarding Bauer’s potential involvement in the fire’s 

inception. Nonetheless, there is substantial evidence to support other factual findings 

made by the trial court that Cal Fire engaged in discovery abuses. 

For example, by repeatedly presenting without limitation the Moonlight report that 

contained the false statement by Bush and the false Lyman Fire report as a discovery 

response (other than to interrogatories seeking identification of documents relating to 

contentions), Cal Fire engaged in sanctionable conduct by providing false discovery 

responses, even if it also provided responsive documents that permitted defendants to 

uncover the falsehoods and errors in the investigation report. And by White’s providing 

untruthful or evasive deposition testimony regarding the white flag and destroying his 

field notes regarding the investigation, despite a reasonable expectation of civil litigation, 

Cal Fire again misused the discovery process. Finally, by failing to timely provide the 
45

responsive WiFITER fund documents pursuant to court order on two separate occasions, 

Cal Fire engaged in yet another discovery violation. Thus, even in the absence of the 

discovery abuses that the trial court found based on exclusion of information about Lief 

and Bauer from the Moonlight report, we cannot conclude it was unreasonable, arbitrary, 

or capricious for the trial court to conclude that monetary sanctions were warranted in 

light of Cal Fire’s numerous other discovery violations. 

That said, we must also consider Cal Fire’s contention that the amount of the 

monetary sanction is unreasonable. Monetary sanctions may include “the reasonable 

expenses, including attorney’s fees, incurred by anyone as a result of [the] conduct” that 

comprises the misuse of the discovery process. (Code Civ. Proc., §2023.030, subd. (a).) 

Here, Cal Fire claims the trial court failed to make the requisite finding that the attorney 

fees and expert fees and expenses it awarded were incurred as a result of the discovery 

abuses, rendering its award of those fees and expenses an abuse of discretion. We agree 

the trial court abused its discretion in awarding certain attorney fees and expert fees and 

expenses as discovery sanctions. Therefore, we reverse the award of monetary sanctions 

and remand the matter for a further hearing. 

The trial court entered three orders awarding discovery sanctions to be paid by 

Cal Fire. To Sierra Pacific, the trial court awarded $21,881,484, which comprised all of 

the attorney fees, expert fees, and other expert expenses it incurred in defending both the 

state action and the concurrent federal action since their inception, as adjusted by the 1.2

lodestar multiplier.17 To Howell, Bush, and Crismon, the trial court awarded 

$1,571,741.28, which comprised attorney fees dating back to 2009 for defense of liability 

issues in the state court case and discovery and other issues in both the state and federal 

courts and expert fees to test Cal Fire’s theory regarding how the fire began. And to 

 

17 See footnote 14, ante, page 32.
46

Beaty and landowner defendants, the trial court awarded $6,146,901.41, which comprised 

all attorney and expert fees they incurred in both the federal and state court actions. 

The trial court reasoned that Cal Fire’s discovery abuses “were the cause of all 

defense expenses incurred” after July 3, 2010, and that “[a]ll . . . defense expenses are, in 

one way or another, inextricably intertwined with the falsehoods and omissions” in the 

Moonlight report. Thus, it did not limit the sanctions to attorney fees or expert fees 

incurred after the discovery misuses it found occurred, but awarded attorney fees and 

expert fees beginning at the inception of litigation. Defendants offer two authorities for 

the proposition that all expenses incurred in litigation may be imposed as sanctions. Both 

are inapposite. 

In Qualcomm Inc. v. Broadcom Corp. (S.D.Cal., Jan. 7, 2008, No. 05cv1958-B 

(BLM)) 2008 U.S.Dist. Lexis 911,

18 the district court relied on the Federal Rules of Civil 

Procedure and the inherent authority of courts to sanction litigants to prevent abuse of the 

judicial process when it awarded the defendant all its attorney fees and costs incurred in 

litigation. (2008 U.S.Dist. Lexis 911, pp. *27, *63.) However, neither basis for the 

court’s ruling in Qualcomm applies here. Unlike the federal court in Qualcomm, the trial 

court here had no inherent power to impose monetary sanctions for misconduct absent 

statutory authority. (See Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 

809.) Rather, the trial court’s authority to issue discovery sanctions was delineated in 

Code of Civil Procedure section 2023.030. Thus, the trial court was limited to awarding 

only those “reasonable expenses, including attorney’s fees, incurred by anyone as a result 

of” a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (a).) 

Therefore, it was an abuse of discretion for the trial court to award sanctions beyond 

 

18 Qualcomm was vacated in part on other grounds as stated in Qualcomm Inc. v. 

Broadcom Corp. (S.D.Cal., Apr. 2, 2010, No. 05cv1958-B (BLM)) 2010 U.S.Dist. Lexis 

33889.
47

those authorized by section 2023.030, including any attorney or expert fees incurred prior 

to Cal Fire’s misuses of the discovery process and any fees that were not the result of 

those misuses. 

Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152 is equally 

unavailing. There, the court found it was error for the trial court to deny a motion for 

sanctions based on former Code of Civil Procedure section 128.5 and former Code of 

Civil Procedure section 2023. (Sherman, supra, at pp. 1163-1164.) Here, no defendant 

moved for sanctions pursuant to Code of Civil Procedure section 128.5, which would

permit a trial court to “ ‘order a party . . . to pay the reasonable expenses, including 

attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are 

frivolous or solely intended to cause unnecessary delay,’ ” and no order may be issued 

based on that section “ ‘except on notice contained in a party’s moving or responding 

papers, or [on] the court’s own motion, after notice and opportunity to be heard.’ ” 

(Sherman, supra, at p. 1164, quoting former Code Civ. Proc., § 128.5, subds. (a) and (c), 

respectively.) And Sherman does not stand for the proposition that monetary discovery 

sanctions may be awarded that exceed the statutory authority set forth in Code of Civil 

Procedure section 2023.030. 

In general, the motions seeking fees as discovery sanctions and accompanying 

declarations provide ample evidence of when fees were incurred by defendants but do 

little to explain how those fees were incurred as a result of Cal Fire’s discovery abuses. 

Therefore, we are unable to ascertain from the record which attorney fees and expert fees 

and expenses were incurred as a result of the discovery misuses for which we have 

concluded there is substantial evidence in the record to support imposition. However, we 

do note, for example, that in their motion for sanctions, Howell, Bush, and Crismon 

asserted they incurred $405,586.08 in expert fees to test Cal Fire’s theory that the fire 

was caused by a hot metal particle being splintered from a bulldozer track upon a rock 
48

strike, including $223,404.26 in expert fees they claim were incurred as a direct result of 

Cal Fire’s failure to test its ignition theory prior to issuing the Moonlight report. While 

the information obtained as a result of this expert analysis may have been used in the 

course of depositions and in reviewing discovery to reveal that the Moonlight report was 

deficient or even false, they have not shown that the fees were incurred as a result of 

discovery violations engaged in by Cal Fire. Accordingly, we reverse the trial court’s 

award of monetary discovery sanctions and remand this matter to the trial court to 

conduct a hearing to determine the “reasonable expenses, including attorney’s fees, 

incurred by [defendants] as a result of” Cal Fire’s misuses of the discovery process. 

(Code Civ. Proc., § 128.5, subd. (a).)

4. Terminating sanctions.

a. Jurisdiction to impose postjudgment

As noted above, after judgment was entered, the trial court considered defendants’ 

motions for discovery sanctions against Cal Fire, and granted the motions by imposing 

both monetary and terminating sanctions against Cal Fire. Cal Fire does not dispute the 

trial court’s jurisdictional capacity to award monetary sanctions but argues the trial court 

lacked jurisdiction to impose a terminating sanction postjudgment, claiming the latter 

sanction is a second judgment violating the one final judgment rule. We disagree. 

Generally speaking, “ ‘there can be only one final judgment in a single action.’ ” 

(Cuevas v. Truline Corp. (2004) 118 Cal.App.4th 56, 60.) And, an order of dismissal 

constitutes a judgment if it is in writing, signed by the court, and filed in the action. 

(Code Civ. Proc., § 581d; Etheridge v. Reins Internat. California, Inc. (2009) 

172 Cal.App.4th 908, 913.) Thus, when the trial court entered its order dismissing the 

actions based on its grant of the motion for judgment on the pleadings and its 

determination that plaintiffs had failed to present a prima facie case, as discussed earlier 

in our opinion, the trial court entered judgment in this action (case No. C074879). If, as 
49

Cal Fire contends, the trial court’s order imposing terminating sanctions is also a 

judgment, this subsequent order would be jurisdictionally problematic. (See Code Civ. 

Proc., § 916, subd. (a) [“[T]he perfecting of an appeal stays proceedings in the trial court 

upon the judgment or order appealed from or upon the matters embraced therein or 

affected thereby, including enforcement of the judgment or order, but the trial court may 

proceed upon any other matter embraced in the action and not affected by the judgment 

or order.”].) 

Here, postjudgment and after an appeal of the judgment was perfected (case 

No. C074879), the trial court elected to “impose[] terminating sanctions” on Cal Fire and 

ordered that “[t]erminating sanctions shall issue against Cal Fire.” Contrary to Cal Fire’s 

assertion, this order is not a judgment. The order does not purport to dismiss the action 

nor otherwise equate with rendition of judgment. (See Good v. Miller (2013) 

214 Cal.App.4th 472, 475.) In fact, generally, this is not even a separately appealable 

order. (Code Civ. Proc., § 904.1; but see Nickell v. Matlock (2012) 206 Cal.App.4th 934, 

940 [“An order granting terminating sanctions is not appealable, and the losing party 

must await the entry of the order of dismissal or judgment unless the terminating order is 

inextricably intertwined with another, appealable order.”].) Rather, the trial court’s order 

awarding terminating sanctions has no effect at all unless and until the trial court enters a 

judgment of dismissal or other order effectuating its award of terminating sanctions. The 

trial court may enter such a judgment as to remaining defendants—i.e., not Sierra Pacific, 

Beaty, or landowner defendants in whose favor judgment of dismissal was entered 

pursuant to an award of judgment on the pleadings as discussed in part I.B., ante—

following remand in case No. C074879 pursuant to our reversal of the judgment of 

dismissal premised on the trial court’s July 26, 2013 order finding plaintiffs failed to 

establish a prima facie case. 
50

Moreover, this postjudgment proceeding is collateral to the appeal because it is 

based on Cal Fire’s alleged prejudgment discovery abuses, for which sanctions 

proceedings could have occurred regardless of the outcome of the appeal of the judgment. 

(See Gridley v. Gridley (2008) 166 Cal.App.4th 1562, 1587; see also Day v. Collingwood 

(2006) 144 Cal.App.4th 1116, 1124-1125.) Indeed, though motions concerning 

discovery are generally to be heard no less than 15 days before the date initially set for 

trial (Code Civ. Proc., § 2024.020, subd. (a)), the Civil Discovery Act does not on its face 

limit the ability of the trial court to impose sanctions for violation of its provisions to 

prejudgment motions for sanctions. If we were to construe the Civil Discovery Act as 

being so limited, it would permit the absurd situation in which those who have misused 

the discovery process can avoid penalty if they are able to keep their misuse secret until 

after that deadline passes. Neither can we construe the Civil Discovery Act as allowing 

only monetary sanctions postjudgment, as Cal Fire argues. If the trial court were 

prevented from exercising its discretion in this collateral postjudgment proceeding to 

impose whatever sanction it deems appropriate, the effect could prejudice the party 

seeking sanctions and cause an undue waste of judicial resources. For, if, as here, the 

underlying judgment of dismissal is reversed and remanded (as here), issues and evidence 

that would have been excluded or a case that should be the subject of terminating 

sanctions would have to be litigated simply because the discovery misuse came to the 

trial court’s attention postjudgment. We are not persuaded the Civil Discovery Act 

should be construed to allow such a result. Therefore, the trial court had jurisdiction to 

impose terminating sanctions. 

b. Propriety of order imposing terminating sanctions

As discussed in part II.B.2., ante, terminating sanctions are authorized both by the 

Civil Discovery Act and by common law. Here, the trial court relied on both Code of 

Civil Procedure section 2023.030 and its inherent authority when it imposed terminating 

sanctions against Cal Fire. The trial court found that Cal Fire’s “ ‘willful,’ ” “repeated 
51

and egregious” misuses of the discovery process “permeated nearly every single 

significant issue in this case” to an extent that “ ‘threatened the integrity of the judicial 

process’ ” and made it implausible that defendants could ever receive a fair trial. The 

trial court further stated that “Cal Fire’s actions in initiating, maintaining, and prosecuting 

this action, to the present time [(postjudgment)] [are] corrupt and tainted. Cal Fire failed 

to comply with discovery obligations, and its repeated failure was willful. . . . Cal Fire’s 

conduct reeked of bad faith. . . . [C]al Fire failed to comply with discovery orders and 

directives, destroyed critical evidence, failed to produce documents it should have 

produced months earlier, and engaged in a systematic campaign of misdirection with the 

purpose of recovering money from Defendants.” It also found that less severe sanctions 

would be unworkable and ineffectual, which certainly implies that it considered imposing 

monetary, issue, and evidentiary sanctions and found them insufficient.

As discussed above, there is substantial evidence to support the trial court’s 

finding that Cal Fire: (1) failed to comply with discovery orders to produce several 

thousand pages of the WiFITER fund documents on two separate occasions, and that the 

failure to comply, even if not deliberate, evinced a disregard for the discovery process; 

(2) repeatedly presented false, misleading, or evasive discovery responses by 

presenting—without limiting comment—the Moonlight report as a responsive document 

even though it contained a statement of causation falsely attributed to Bush and a Lyman 

Fire report falsely attributing fault to Howell; (3) presented false or evasive deposition 

testimony by White; and (4) engaged in spoliation when White improperly destroyed his 

field notes despite probable civil litigation. There is also certainly evidence in the record 

to suggest that the existence of the WiFITER fund caused investigators to have a motive 

for bias in their investigation of wildfires that may result in a civil cost recovery; that 

Cal Fire mislead the trial court about what would be contained in the WiFITER fund

documents that were not timely produced thereby causing exclusion of the WiFITER 
52

fund documents from trial; and that the Moonlight report excluded information that 

probably should have been included or investigated, including Bauer’s unsolicited alibi, 

Lief’s questionable conduct, and any reference to or explanation for the white flag. In 

view of this cumulative evidence, we cannot find the trial court abused its discretion in 

imposing terminating sanctions based on its finding Cal Fire engaged in egregious and 

deliberate misconduct that made any other sanction inadequate to protect the judicial 

process and to ensure a fair trial. 

C. Attorney Fees

Defendants moved for attorney fees as prevailing parties (1) on a contractual basis, 

pursuant to Health and Safety Code sections 13009 and 13009.1, Civil Code section 

1717, and Code of Civil Procedure section 1021.8, and (2) because the action resulted in 

the enforcement of important rights affecting the public interest, pursuant to Code of 

Civil Procedure section 1021.5 and Serrano v. Priest (1977) 20 Cal.3d 25, 46-47. The 

trial court agreed that defendants were entitled to attorney fees as prevailing parties on 

both bases. Cal Fire contends the trial court erred in awarding attorney fees on either 

basis. We conclude there is no contractual basis for attorney fees in the instant matter, 

and the trial court abused its discretion in awarding attorney fees based on Code of Civil 

Procedure section 1021.5. 

Before we begin our analysis of the merits of the trial court’s orders awarding 

attorney fees to defendants as prevailing parties, we must address some basic issues 

appearing on the face of those orders. The trial court awarded to Sierra Pacific 

$21,100,723.20 in attorney fees, expert fees, expert expenses, and expert costs as 

prevailing party to be recovered exclusively from Cal Fire. However, of this amount, 

only $17,088,753.60 may even potentially be recovered as attorney fees on the bases 

presented. (See Civ. Code, § 1717 [providing for award of attorney fees to prevailing 

party in an action on a contract]; see also Olson v. Automobile Club of Southern 
53

California (2008) 42 Cal.4th 1142, 1148 [Code Civ. Proc., § 1021.5 authorizes recovery 

of attorney fees, not expert witness fees or expenses].)19 Additionally, of the cumulative 

amount of $6,146,901.41 in attorney fees and expert fees the trial court collectively 

awarded to Beaty and landowner defendants, only $4,837,720.50 in attorney fees

awarded in the order have the potential of being awarded on these bases. The trial court 

collectively awarded to Howell, Bush, and Crismon as prevailing parties attorney fees of 

$1,166,155; however, Howell, Bush, and Crismon are not prevailing parties as to any 

plaintiff in light of the conclusions we reach in part I., ante. The attorney fee award to 

those three defendants is necessarily vacated.

1. No contractual basis.

One of the bases on which the trial court purportedly relied in awarding attorney 

fees to the prevailing defendants was Civil Code section 1717, which provides that where 

a contract “specifically provides” for recovery of attorney fees and costs following an 

action to enforce a contract, the trial court may award reasonable attorney fees to the 

prevailing party. Here, however, there is no contract “specifically provid[ing]” for 

recovery of attorney fees. Rather, the trial court relied on language in sections 13009 and 

13009.1, which provide in relevant part that the charge for fire suppression costs, rescue 

or emergency medical service costs constitute “a debt of that person [found liable under 

sections 13009 or 13009.1], and is collectible by the person, or by the federal, state, 

county, public, or private agency, incurring those costs in the same manner as in the case 

of an obligation under a contract, expressed or implied” (§§ 13009, subd. (a) & 13009.1, 

subd. (e), italics added), combined with Code of Civil Procedure section 1021.8, which 

provides that when the Attorney General prevails in a civil action based on sections 

 

19 We note also that the trial court awarded expert fees as part of its costs award to Sierra 

Pacific, despite the absence of any Code of Civil Procedure section 998 offer in the 

record. That costs award has been reversed and remanded, as discussed in part I., ante.
54

13009 and 13009.1, inter alia, the Attorney General is to be awarded his or her “costs of 

investigating and prosecuting the action, including expert fees, reasonable attorney[]

fees, and costs” (Code Civ. Proc., § 1021.8, subd. (a), italics added). We conclude these 

statutes, even when taken together, do not support a finding that there was a contractual 

basis for awarding attorney fees to defendants. 

Contrary to the necessarily implied assertion of defendants that sections 13009 and 

13009.1 create a contract between the parties, “the instant statutes only specify that the 

listed costs [recoverable under the statutes] are debts deemed collectible by the state ‘in 

the same manner’ as contract obligations. Such language does not transform the liability 

into a contract . . . .” (Department of Forestry & Fire Protection v. LeBrock (2002) 

96 Cal.App.4th 1137, 1141-1142.) “The statutory language regarding how the state may 

collect the costs listed is merely a procedural mechanism. There is no contract between 

the parties that expressly, or even impliedly, provides for recovery of attorneys fees.” 

(Id. at p. 1142.) Neither is the statutory mandate that the Attorney General recover his or 

her attorney fees in a case premised on Health and Safety Code sections 13009 or 

13009.1, as codified in Code of Civil Procedure section 1021.8, cause to construe 

sections 13009 and 13009.1 as otherwise forming a contractual basis on which to recover 

fees. Rather, as with a great many other statutory provisions providing for recovery of 

attorney fees, Code of Civil Procedure section 1021.8 is a unilateral statutory basis for 

fee recovery. (LeBrock, supra, at p. 1142 [“[M]any statutory provisions which . . .

provide for attorney[] fees are one-sided. They expressly shift fees to advance public 

interests, such as encouraging citizens to put fire safety measures in place.”].) Therefore, 

as a statutory rather than contractual authorization for fee recovery, it does not trigger the 

reciprocity provisions of Civil Code section 1717. (LeBrock, supra, at pp. 1141-1142.) 

Accordingly, we conclude the trial court erred in awarding attorney fees to 

defendants as prevailing parties on a contractual basis pursuant to Health and Safety 
55

Code sections 13009 and 13009.1, Civil Code section 1717, and Code of Civil Procedure 

section 1021.8. 

2. Public benefit.

The other statutory basis on which the trial court purportedly awarded attorney 

fees was that codified in Code of Civil Procedure section 1021.5, which states in part that 

“[u]pon motion, a court may award attorneys’ fees to a successful party against one or 

more opposing parties in any action which has resulted in the enforcement of an 

important right affecting the public interest if: (a) a significant benefit, whether 

pecuniary or nonpecuniary, has been conferred on the general public or a large class of 

persons, (b) the necessity and financial burden of private enforcement . . . are such as to 

make the award appropriate, and (c) such fees should not in the interest of justice be paid 

out of the recovery, if any.” On appeal, Cal Fire contends the trial court erred in 

awarding attorney fees on this basis because (1) it improperly weighed the public benefit 

against the benefit defendants received rather than weighing the financial burden incurred 

by defendants against their potential exposure, and (2) the judgment did not confer a 

public benefit. We conclude the trial court abused its discretion in awarding attorney fees 

on this basis because it failed to consider the comparative financial burden and exposure 

defendants faced in litigation as required by Code of Civil Procedure section 1021.5. 

“[T]he necessity and financial burden requirement [of Code of Civil Procedure 

section 1021.5] ‘ “really examines two issues: whether private enforcement was 

necessary and whether the financial burden of private enforcement warrants subsidizing 

the successful party’s attorneys.” ’ [Citations.] The ‘necessity’ of private enforcement

‘ “ ‘ “looks to the adequacy of public enforcement and seeks economic equalization of 

representation in cases where private enforcement is necessary.” ’ ” ’ ” (Conservatorship 

of Whitley (2010) 50 Cal.4th 1206, 1214-1215.) In determining the financial burden on 

litigants for purposes of the second prong of this inquiry, “courts have quite logically 
56

focused not only on the costs of the litigation but also any offsetting financial benefits 

that the litigation yields or reasonably could have been expected to yield. ‘ “An award on 

the ‘private attorney general’ theory is appropriate when the cost of the claimant’s legal 

victory transcends his personal interest, that is, when the necessity for pursuing the 

lawsuit placed a burden on the plaintiff ‘out of proportion to his individual stake in the 

matter.’ ” ’ ” (Id. at p. 1215.) Where, however, the party “had a ‘personal financial 

stake’ in the litigation ‘sufficient to warrant [the] decision to incur significant attorney 

fees and costs in the vigorous prosecution [or defense]’ of the lawsuit, an award under 

[Code of Civil Procedure] section 1021.5 is inappropriate.” (Millview County Water 

Dist. v. State Water Resources Control Bd. (2016) 4 Cal.App.5th 759, 768-769.) 

Here, there is no indication the trial court considered defendants’ litigation costs or 

potential financial benefits or burdens defendants would realize through litigation. 

Rather, the trial court went on at length to justify its finding that defendants conferred a 

significant public benefit in the course of their defense of the action by exposing and 

leading to the closure of the WiFITER fund, by prevailing on a summary adjudication in 

which the trial court interpreted a regulation (Cal. Code Regs., tit. 14, § 938.8) as not 

creating a legal duty on landowners for fires caused by third parties, and by exposing 

dishonesty, investigative corruption, and a pervasive violation of discovery rules by a 

public entity. The trial court found that “motivation due to some personal interest, which 

all defendants must undeniably have, is not fatal to an award of fees under [Code of Civil 

Procedure] section 1021.5.” The trial court continued, stating that “[t]he question this 

Court must answer is whether the broad public benefits conferred by the Moonlight Fire 

litigation were simply coincidental to the defense of the case. While the Court is aware 

that any successful defense benefits the defendant, it also finds that the benefits conferred 

upon the citizens of California went far beyond the stake these Defendants had in 

defending themselves and were not merely coincidental in nature.” 
57

The trial court did not in any way discuss or appear to weigh the financial burden 

defendants incurred in pursuing their defense of the litigation or any potential financial 

exposure defendants faced in the litigation, and there does not appear to have been any 

effort on the part of defendants to present evidence in their motions for fees, expenses, 

and sanctions to permit the trial court to engage in such an inquiry. Additionally, it does 

not appear that if the court had engaged in such an inquiry, it could reasonably have 

found defendants’ costs in pursuing their legal victory transcended their personal interest 

in avoiding liability to warrant an award of attorney fees pursuant to Code of Civil 

Procedure section 1021.5. For, even though the attorney fees, expert fees, and other costs 

incurred by defendants here are substantial, so too was the potential liability defendants 

faced in the litigation. For instance, we know Cal Fire sought to recover from defendants 

fire suppression, investigation, accounting, and administrative costs in the amount of 

$8,441,309.99. Additionally, if Cal Fire prevailed, defendants would also have been 

liable to the Attorney General for what would amount undoubtedly to several million 

dollars for “all costs of investigating and prosecuting the action, including expert fees, 

reasonable attorney’s fees, and costs.” (Code Civ. Proc., § 1021.8, subd. (a).) Moreover, 

although there was no evidence presented on the issue, there is some indication other 

plaintiffs sought damages in the tens of millions of dollars. All told, the financial 

exposure defendants faced was decidedly not out of proportion with the financial burden 

they incurred in defending the action. Therefore, the trial court erred in awarding 

attorney fees to defendants as prevailing parties on this basis as well. 

D. Costs of Proof Award

Defendants moved for attorney fees pursuant to Code of Civil Procedure section 

2033.420, subdivision (a) because Cal Fire failed to admit the truth of certain matters in 

response to propounded requests for admission. On appeal, Cal Fire contends the trial 

court erred in awarding attorney fees for defendants because “defendants did not, and 

could not, disprove the truthfulness of Cal Fire’s responses to the requests for admission 
58

at issue.” We do not reach the merits of this contention because, despite the trial court’s 

apparent finding that defendants were entitled to these costs of proof, it did not actually 

make any separate award of costs of proof pursuant to Code of Civil Procedure section 

2033.420. Thus, Cal Fire has failed to demonstrate any error on the face of the record for 

this court to review with regard to an order awarding costs of proof pursuant to Code of 

Civil Procedure section 2033.420 because it has not shown there is any such award. (See 

Gonzalez v. Rebollo (2014) 226 Cal.App.4th 969, 976.) 

III. Challenges to Judge*

Finally, plaintiffs request that we require any remand proceedings be conducted by 

a different trial judge. We are obligated to consider this request by Code of Civil 

Procedure section 170.1, subdivision (c), which states: “At the request of a party . . . an 

appellate court shall consider whether in the interests of justice it should direct that 

further proceedings be heard before a trial judge other than the judge whose judgment or 

order was reviewed by the appellate court.” 

Here, plaintiffs claim the request should be granted because “[a] person aware of 

the facts might reasonably entertain a doubt that the judge would be able to be impartial.” 

(Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) The facts, as plaintiffs see them, are that 

Judge Nichols deprived them, without a legitimate reason, of a trial on the same law and 

evidence that a judge who had previously heard law and motion proceedings and another 

court in a separate but related federal case had deemed sufficient to proceed to trial. 

Additionally, plaintiffs assert there is a reasonable doubt Judge Nichols would be 

impartial after reversal, especially because the procedures employed here were unfair, 

and because Judge Nichols is a visiting retired judge forced to hear a lengthy trial in a 

remote and rural location.

 

* See footnote, ante, page 1.
59

Our review of the record does not reveal any evidence of prejudice or bias on the 

part of Judge Nichols that would warrant his disqualification on remand. And erroneous 

rulings are not themselves sufficient evidence of bias to warrant removal. (Blakemore v. 

Superior Court (2005) 129 Cal.App.4th 36, 59-60.) Accordingly, we conclude the 

interests of justice do not warrant any order from this court requiring that future trial 

court proceedings be conducted by a different judge.

DISPOSITION

In case No. C074879, the judgment of dismissal as to Cal Fire’s claims against 

Beaty, Sierra Pacific, and landowner defendants is affirmed. The judgment of dismissal 

as to all other claims is reversed, and the matter is remanded to the trial court for further 

proceedings. 

In case No. C076008, the postjudgment award of costs to defendants Sierra 

Pacific, Beaty, and landowner defendants as prevailing parties against Cal Fire is 

remanded for further proceedings to calculate an appropriate award for costs incurred in 

defending Cal Fire’s action pursuant to Code of Civil Procedure sections 1032 and 

1033.5. All other postjudgment orders awarding costs to prevailing parties are 

necessarily vacated as a result of our conclusion in case No. C074879. The postjudgment 

award of attorney fees to defendants Howell, Bush, and Crismon is also necessarily 

vacated, as they are no longer prevailing parties as to any plaintiff. Additionally, we 

reverse the postjudgment awards of attorney fees to defendants Sierra Pacific, Beaty, and 

the landowner defendants as prevailing parties against Cal Fire. We also reverse the 

postjudgment order imposing monetary discovery sanctions against Cal Fire and remand 

for further proceedings to determine the recoverable expenses pursuant to Code of Civil 

Procedure section 2023.030. The postjudgment order imposing terminating sanctions 

against Cal Fire is affirmed. 
60

Plaintiffs and appellants, other than Cal Fire, are entitled to their costs on appeal in 

case No. C074879. (Cal. Rules of Court, rule 8.278(a)(1), (2).) All parties are 

responsible for their own costs in case No. C076008. (Id., rule 8.278(a)(5).)

 BUTZ , J.

I concur:

 NICHOLSON , Acting P. J.
1

ROBIE, J.

I respectfully dissent.

First, the majority finds that the trial court’s decision to grant judgment on the 

pleadings to Sierra Pacific, Beaty, and landowner defendants was proper because Health 

and Safety Code sections 13009 and 13009.11 do not incorporate common law theories of 

negligence, including vicarious liability, to hold anyone besides a direct actor liable for 

the cost of that fire’s suppression. I cannot agree.

As the majority notes, section 13009 states in relevant part, “[a]ny person (1) who 

negligently, or in violation of the law, sets a fire, allows a fire to be set, or allows a fire 

kindled or attended by him or her to escape onto any public or private property . . . is 

liable for the fire suppression costs incurred in fighting the fire and for the cost of 

providing rescue or emergency medical services, and those costs shall be a charge against 

that person.” Section 13009.1 repeats the basic language of section 13009 concerning 

who may be held liable for the cost of fire suppression. Further, section 19 of the same 

code defines a person as “any person, firm, association, organization, partnership, 

business trust, corporation, limited liability company, or company.” A plain reading of 

these statutes appears to extend liability for the cost of fire suppression to corporations or 

companies through vicarious liability. “Any person” as used in sections 13009 and 

13009.1 includes companies and corporations (see § 19); these entities can only act 

through their agents and thus can only be found negligent through vicarious liability. 

(Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 782 [“ ‘corporations 

necessarily act through agents’ ”].) To read otherwise would ignore the definition of 

“person” contained in the Health and Safety Code. Thus, sections 13009 and 13009.1 

can be read to impose liability for the costs of fire suppression through vicarious liability.

 

1 Further section references are to the Health and Safety Code. 
2

I believe the statutory history supports this interpretation. As my colleagues note, 

chapter 790, enacted in 1931, imposed liability for the cost of property damage to “Any 

person who: [¶] (1) Personally or through another, and [¶] (2) Wilfully, negligently, or 

in violation of law, commits any of the following acts: [¶] (1) Sets fire to, [¶] 

(2) Allows fire to be set to, [¶] (3) Allows a fire kindled or attended by him to escape to 

the property, whether privately or public owned, of another.” (Stats. 1931, ch. 790, § 1, 

p. 1644, italics added.) This language appears to mirror modern day section 13007. 

Chapter 790, section 2, imposes liability for cost of property damage to “Any person who 

allows any fire burning upon his property to escape to the property, whether privately or 

publicly owned, of another, without exercising due diligence to control such fire.” (Stats. 

1931, ch. 790, § 2, p. 1644, italics added.) This language appears to mirror modern day 

section 13008. Importantly, section 2 omits the language “[p]ersonally or through 

another” that is found in the first section of chapter 790. 

Three years after the enactment of chapter 790, this court in Haverstick v. 

Southern Pac. Co. (1934) 1 Cal.App.2d 605, found sufficient evidence to hold the 

“Southern Pacific Company (a Corporation)” liable to a landowner after a train operated 

by Southern Pacific caught fire during a run from Galt to Ione and, through the lack of 

“ordinary care and diligence” of Southern Pacific’s employees, the fire was allowed to 

spread from Southern Pacific’s property to the landowner’s property. There was “[n]o 

real explanation” for how the fire started. (Id. at pp. 605, 607, 610.) Although the 

opinion does not specify whether the railroad’s liability was predicated upon section 2, 

this appears to be so because the employees of the railroad did not kindle or set any fire, 

but merely allowed fire burning on the railroad’s property to spread to the property of 

another through a lack of due diligence. (Compare Stats. 1931, ch. 790, §§ 1 and 2; see 

also People v. Southern Pacific Co. (1983) 139 Cal.App.3d 627, 636-638 [under 

§§ 13007 and 13009, a jury must find a defendant negligently started or kindled a fire, 

not merely negligently failed to extinguish it].) Because liability was likely predicated 
3

pursuant to section 2 (Stats. 1931, ch. 790), the railroad was found vicariously liable 

based on the language “[a]ny person” and not the additional language of “[p]ersonally or 

through another” found in section 1.

In 1939, the Health and Safety Code was enacted and included section 19, which 

defined a person as “any person, firm, association, organization, partnership, business 

trust, corporation, or company.” (Stat. 1939, ch. 60, p. 484, § 19.) The code did not 

include a section devoted to fire protection. Then in 1953, chapter 790 was codified into 

the Health and Safety Code and sections 13007, 13008, and 13009 were enacted, each 

reflecting the language used in chapter 790 sections 1 through 3 respectively. (Stats. 

1953, ch. 48, p. 682, §§ 1-3.) Section 13009, explicitly referenced sections 13007 and 

13008 and allowed for the collection of fire suppression costs when someone was 

responsible for a fire as described by those sections. Then, after People v. Williams 

(1963) 22 Cal.App.2d 152, it appears the Legislature rewrote section 13009 (not merely 

transferred the language from a prior chapter) to allow for liability in the situation where 

a fire does not escape to another’s property. During the rewrite, the Legislature removed 

references to section 13007 and 13008; however, this time it had the benefit of the 

definition of “person” within the same code as the fire prevention statutes and 

Haverstick’s finding of liability upon a corporation through the acts of its employees. 

Thus, when the Legislature wrote “any person” without the language “who personally or 

through another,” it still intended to extend liability to those who must act vicariously 

through their agents. 

The majority concludes that such an interpretation would render the language 

“who personally or through another” in section 13007 meaningless. However, the 

interpretation the majority gives to section 13009, renders the definition of “person” 

meaningless and would result in corporations or companies never being held liable for 

fire suppression costs. This is highlighted by the example given in the majority opinion. 

The opinion distinguishes County of Ventura v. So. Cal. Edison Co. (1948) 85 
4

Cal.App.2d 529, from the present case because it was decided before section 13009 

removed reference to section 13007 and because liability was imposed “not on a third 

party with some responsibility to supervise or oversee the actor, but on the actor itself 

that failed to properly maintain its own equipment that directly caused the fire.” While 

the first reason distinguishing the case is sound, I do not see how Southern California 

Edison Co. is a direct actor. “The trial court found the cause of the fire to be the 

negligent construction and maintenance of the transmission and telephone lines by the 

Edison Company.” (Ventura County v. So. Cal. Edison Co., supra, 85 Cal.App.2d at 

p. 531.) As a corporation, the Edison Company cannot act. (See Snukal v. Flightways 

Manufacturing, Inc., supra, 23 Cal.4th at p. 782.) Its agents/employees can act by 

constructing and maintaining or by imposing policies for the adequate construction and 

maintenance of company equipment. It was the employees’ failure to act in such a way 

that led to the vicarious liability of the Edison Company. I do not see a meaningful 

difference between the negligence of a company when the cause of a fire was an 

employee’s overt act versus the same employee’s failure to act. 

Cases brought under section 13009 involving companies or organizations further 

highlight this point. In People ex rel. Grijalva v. Superior Court (2008) 159 Cal.App.4th 

1072, 1075-1076, a water conservation district admitted liability after a complaint was 

filed for breach of contract, negligence, negligence per se, and public nuisance, when “[a] 

spark from construction equipment operated by an employee of [the water conservation 

district] started a brush fire.” Although liability was admitted, the start of this fire is 

nearly identical to the start of the Moonlight Fire here (spark from equipment operated by 

an employee), but because it is phrased as a failure to act by the organization, which 

resulted in a public nuisance, the majority opinion would deem it properly brought. 

Also in People v. Southern Pacific Co., supra, 139 Cal.App.3d at pages 632, 636 

through 640, the court found a jury instruction harmless and the verdict holding Southern 

Pacific liable for fire suppression costs proper when a spark from a train started a fire. 
5

The negligence theory relied upon was “negligent maintenance or operation of the fire 

extinguisher, and . . . failure to clear combustible vegetation from the right-of-way in the 

area where the fire started.” (People v. Southern Pacific Co., supra, 139 Cal.App.3d at 

p. 633, italics added.) As in People ex rel. Grijalva, the theory of negligence can be 

stated as an overt act of an employee and as a failure of that employee to act in some way 

that then caused the fire. On this note, whether a company’s negligence proximately 

caused the fire is still a question left to the fact finder and could serve to negate liability 

for fire suppression where an employee’s acts do not comport with company policy and 

cannot be said to be a product of the company’s negligence. 

Finally, I do not believe a reading of section 13009 that includes vicarious liability 

renders subdivision (a)(2) and (a)(3) of that section meaningless. The majority states that 

“[w]ere it possible for section 13009 and 13009.1 to be applied to one who did not 

through his direct action proximately cause the fire . . . there would have been no cause to 

amend the statute to extend liability to one who has the right and responsibility to cure a 

noticed fire hazard but fails to do so.” Not so. Four years before the amendment of 

section 13009 in 1987, People v. Southern Pacific Co., supra, 139 Cal.App.3d at pages 

636 through 637, held it error to instruct the jury that it could find liability under section 

13009 solely on a theory that the defendant negligently failed to extinguish a fire, without 

finding the defendant was negligently responsible for kindling a fire. The court 

“conclude[d] that liability for firefighting expenses under section 13009 is limited to the 

situations in which liability for property damage exists under section 13007” and that a 

defendant must be found to have been responsible through its negligent conduct to have 

started or kindled the fire. (People v. Southern Pacific Co., supra, 139 Cal.App.3d at 

p. 638.) Section 13009, subdivision (a)(2) and (a)(3) allow for liability upon a showing 

that a fire occurred on the property and someone with the right to correct a fire hazard 

failed to do so when notified. This subdivision does not require a showing that the 
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conduct of failing to maintain the property actually kindled the fire or that the fire 

originated on the property in question. 

This interpretation is supported by City of Los Angeles v. Shpegel-Dimsey, Inc.

(1988) 198 Cal.App.3d 1009. There, a court found a company was not liable under the 

pre-1987 version of section 13009 for fire suppression costs despite the company being 

notified 55 times of fire code violations. (City of Los Angeles, at p. 1015.) Although the 

company was in violation of the fire code, the chemicals it stored were not spontaneously 

combustible and the fire that ignited on the property was alleged only to have grown 

because of the company’s negligence, not to have started because of negligence. (Id. at 

pp. 1015-1016.) Thus, the company fell “within none of the classes of persons held 

liable” under section 13009. (City of Los Angeles, at pp. 1019-1020.) The court noted 

that the amendment to section 13009 would have made the company unequivocally liable 

for fire suppression costs because it failed to correct a fire hazard prohibited by law. 

(City of Los Angeles, at p. 1019, fn. 2.)

For these reasons, I believe sections 13009 and 13009.1 can be read to hold 

companies vicariously liable for the acts of their employees. I cannot agree with my 

colleagues’ conclusion to the contrary. 

With this interpretation of the statute and the resulting denial of the motion for 

judgment on the pleadings, I too would reverse the award of costs to defendants, but in its 

entirety, not just for the reasons the majority finds the court’s ruling infirm.

Further, I believe, the trial judge was not fair and impartial in much of the 

proceedings, and it is clear to me that he became embroiled and acted impulsively and

thus erred in many other ways. For example, I agree with the majority’s conclusion to 

reverse for fundamental due process reasons the Cottle2 ruling of the trial court. 

 

2 Cottle v. Superior Court (1992) 3 Cal.App.4th 1367.
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However, this sua sponte action by the trial court demonstrates how profoundly biased 

the trial judge was. 

In this same vein, I cannot agree to affirm the terminating sanctions imposed for 

discovery abuses. The number of documents to be produced was enormous. Therefore, 

late production of 7,000 pages, while not minor, must be considered in context. 

Terminating sanctions are to be a last resort “and should be used sparingly,” after lesser 

sanctions are not sufficient. (Lopez v. Watchtower Bible & Tract Society of New York, 

Inc. (2016) 246 Cal.App.4th 566, 604.) “A trial court must be cautious when imposing a 

terminating sanction because the sanction eliminates a party’s fundamental right to a trial, 

thus implicating due process rights.” (Ibid.) There is no indication the trial court 

imposed intermediate sanctions. After all, he could have refused admission of certain 

evidence which was the subject of abuse. Or he could have deemed as admitted facts that

were the subject of late discovery. He also could have imposed monetary sanctions as an 

intermediate remedy. But, just as the trial court acted impulsively in ruling on an oral 

motion for judgment on the pleadings and in abruptly raising on its own motion and 

imposing the Cottle remedy one week before trial, the trial court impulsively granted 

terminating sanctions. 

Not only did the trial court fail to consider incremental sanctions, the court also 

failed to justify why those incremental sanctions would not have been effective. My 

colleagues also fail to justify why incremental sanctions for the discovery violations 

would not have been effective. Indeed, judgment on the pleadings and dismissal had 

already been entered in favor of a majority of defendants, thus making terminating 

sanctions at this stage of the proceedings overkill and not “required to protect the 

interests of the party entitled to but denied discovery.” (Lopez v. Watchtower Bible &

Tract Society of New York, Inc., supra, 246 Cal.App.4th at p. 604.) “The trial court 

should select a sanction that is ‘ “ ‘tailor[ed] . . . to the harm caused by the withheld 

discovery.’ ” ’ ” (Ibid.) Here, terminating sanctions were not tailored to the harm caused 
8

by the withheld discovery because the case had already been resolved as to a majority of 

the defendants at the time the court imposed the terminating sanctions. 

Further, I do not believe that terminating sanctions were justified by CalFire’s 

conduct. The majority finds, and I agree, that substantial evidence did not support a 

finding of misuse of discovery practices where the Ryan Bauer interview and the Red 

Rock lookout interviews were concerned. Despite this finding, however, the majority

opinion cites these two instances as justification for terminating sanctions. Further, 

neither the trial court nor the majority opinion found CalFire deliberately withheld 

thousands of WiFITER documents, and merely conclude that CalFire’s conduct “evinced 

a disregard for the discovery process.” The terminating sanctions appear to rest on this 

nonwillful conduct and Investigator White’s willful conduct of preparing a misleading 

report, giving false deposition testimony, and destroying his field notes. Where the 

destruction of the field notes is concerned, however, it should be noted that law 

enforcement officers routinely destroy their notes once they have prepared a report and 

that it was White’s routine practice to do so, in addition to being CalFire’s official 

practice at the time of the hearing. I do not see White’s destruction of his notes as rising 

to the level of intentional spoliation. Thus, the only conduct left that evinced a deliberate 

misuse of the discovery process was White’s misleading report and false deposition 

testimony. Surely, a lesser sanction could have been structured to deal with this one 

person’s conduct. (See Lopez v. Watchtower Bible & Tract Society of New York, Inc., 

supra, 246 Cal.App.4th at pp. 604-606 [terminating sanctions not proper when party 

willfully withheld documents because record did not reflect that court could not have 

obtained compliance with lesser sanctions].)

Finally, I also cannot agree that any remand be before the same trial judge, who I 

believe was manifestly biased and did not provide a fair and impartial forum for litigation 

of an enormously important case with vast ramifications beyond the facts of this 

proceeding. The conduct of the trial court in making the Cottle ruling, granting judgment 
9

on the pleadings and then issuing postjudgment terminating sanctions were not the 

actions of a fair and impartial judge.

/s/ , 

Robie, J.