Ahrens v. Superior Court

• Decision Date: 22 January 1988
• Docket Number: No. A038708,A038708
• Citation: 243 Cal.Rptr. 420,197 Cal.App.3d 1134
• Court: California Court of Appeals Court of Appeals
• Parties: Paul AHRENS et al., Petitioners, v. SUPERIOR COURT of the State of California for the City and County of San Francisco, Respondent; PACIFIC GAS AND ELECTRIC COMPANY, Real Party in Interest.

Page 420

243 Cal.Rptr. 420

197 Cal.App.3d 1134

Paul AHRENS et al., Petitioners, v. SUPERIOR COURT of the State of California for the City and County of San Francisco, Respondent PACIFIC GAS AND ELECTRIC COMPANY, Real Party in Interest.

No. A038708.

Court of Appeal, First District, Division 1, California.

Jan. 22, 1988.

Review Denied April 6, 1988.

William R. Benz, Yvonne M. Metzger, Larkspur, for petitioners.

No appearance for respondent.

Sedgwick, Detert, Moran & Arnold, Stephen W. Jones, Roger D. Rizzo, Beth S. Jordan, Pacific Gas & Electric Co., Iathan T. Annand, San Francisco, for real party in interest PG & E.

Latham & Watkins, Ernest J. Getto, Milton A. Miller, Juli Wilson Marshall, Los Angeles, Chemical Manufacturers Assn., David F. Zoll, Michael P. Walls, Washington, D.C., Crosby, Heafey, Roach & May, Peter W. Davis, Oakland, Piper & Marbury, Toni K. Allen, Susan D. Sawtelle, Washington, D.C., for amici curiae in Support of PG & E.

RACANELLI, Presiding Justice.

Petitioners filed this action against Pacific Gas & Electric Company (PG & E) and others following a fire in an electrical transformer containing polychlorinated biphenyls (PCBs) at a San Francisco high-rise office building in May 1983. Summary adjudication of issues was granted in favor of PG & E, primarily on the issue of whether the use of electrical transformers containing PCBs constitutes an ultrahazardous activity. Additionally, the court determined to be without substantial controversy the issues whether PG & E was involved in a conspiracy to misrepresent facts surrounding the clean-up following the fire and whether PG & E was involved in tissue and blood sampling performed on the petitioners.

Petitioners seek a writ of mandate commanding the Superior Court to set aside its order granting real party's motion for summary adjudication of issues. We will grant relief in part for the reasons which we explain.

Factual Background

The facts, as contained in the documents before the trial court, are as follows. Petitioners were employed at One Market Plaza, an office high-rise owned by Equitable Life Assurance Company and Southern Pacific Transportation Company. PG & E owned and maintained electrical transformers which contained PCBs, used as an insulating material, housed in a vault beneath the street and the office building. ¹ On May 15, 1983, the transformers exploded and burned, causing the release of soot, smoke, and toxic substances caused by combustion of the PCBs. ² Petitioners were exposed to the toxic substances at the time of the fire, as well as during and after the resulting clean-up.

Procedural History

On November 18, 1983, petitioners filed a complaint for damages for injuries caused by toxic substance contamination. In addition to PG & E, the building owners, and the manufacturer of the transformer, several companies involved in the post fire clean-up, health monitoring, and testing were named as defendants in the complaint and two subsequent amendments.

On February 24, 1987, petitioners moved for summary adjudication of issues as to whether using, maintaining and operating an electrical transformer containing PCBs at a high-rise office building is an ultrahazardous activity. ³

On February 27, PG & E also moved for summary adjudication of issues, including, inter alia, (1) whether PG & E's use of the transformers containing PCBs was an ultrahazardous activity; (2) whether PG & E was involved in a conspiracy to suppress information regarding testing, cleaning or decontamination after the fire; and (3) whether PG & E had any involvement in tissue and blood sampling performed on petitioners. ⁴ At the hearing on PG & E's motion on March 27, 1987, the trial court indicated that while the use of PCBs in the transformers was hazardous in the sense of having the capacity to cause harm, it was not an uncommon activity.

On April 30, 1987, the court entered its order that there was no triable issue as to any material fact regarding the following three issues:

(1) "PG & E's use of electrical transformers containing PCBs at the time of the May 15, 1983 fire was not an ultrahazardous activity."

(2) "PG & E was not involved in any conspiracy to misrepresent or suppress information concerning any aspect of testing, cleaning or decontamination at One Market Plaza following the May 15, 1983 fire."

(3) "PG & E had no involvement in or connection with the tissue and blood sampling performed upon plaintiffs which is the subject of plaintiffs' ninth cause of action."

On May 11, 1987, written notice of entry of the order was served on petitioners. Their timely petition for writ of mandate pursuant to Code of Civil Procedure section 437c, subdivision (l ), ensued.

DISCUSSION

Standard of Review

Our review of the challenged order is governed by the principles which follow.

"Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. [Citations.] The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory. [Citation.]" (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.) As frequently noted, summary judgment is a drastic remedy which requires that the moving party's declarations be strictly construed, while those of the opposing party are liberally construed. (Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717, 150 Cal.Rptr. 408.) The function of summary judgment is to determine whether a triable issue of fact exists, not to pass on the merits of the issue itself. (Jos. Schlitz Brewing Co. v. Downey Distributor (1980) 109 Cal.App.3d 908, 914, 167 Cal.Rptr. 510.) In addition, a summary judgment may not be based on inferences which are contradicted by other inferences that raise a triable issue of material fact. (Code Civ.Proc., § 437c, subd. (c).)

"Supporting and opposing affidavits or declarations shall be made ... on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." (Code Civ.Proc., § 437c, subd. (d).) Mere conclusions of law or fact are insufficient to satisfy the evidentiary requirements of the summary judgment statute. (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 626, 157 Cal.Rptr. 248.)

In determining summary motions, the court may consider admissions, answers to interrogatories, depositions and matters subject to judicial notice. (Code Civ.Proc., § 437c, subd. (b).) And judicial notice of federal regulations and documents contained in the Federal Register is mandated under Evidence Code section 451, subdivision (b). (See Cal.Law Revision Com. com., Deering's Ann.Evid.Code (1986 ed.) § 451, pp. 180-181; Stevens v. Cessna Aircraft Co. (1981) 115 Cal.App.3d 431, 434, 170 Cal.Rptr. 925 [federal regulations established responsibilities of aircraft pilot on summary judgment]; People v. International Steel Corp. (1951) 102 Cal.App.2d Supp. 935, 939, 226 P.2d 587 [judicial notice of "Ringelmann Chart" measuring air contamination, published in Fed.Reg.].)

Appellate review of a trial court's order granting summary adjudication of issues requires an examination of the pleadings, the moving party's showing, and, if necessary, the opposing party's showing in order to determine whether a triable issue of material fact exists. (LaRosa v. Superior Court (1981) 122 Cal.App.3d 741, 744-745, 176 Cal.Rptr. 224.) In light of such governing principles, we discuss the three principal issues raised by the petition.

Use of PCBs as an Abnormally Dangerous Activity

Although the question whether an activity is abnormally dangerous is one of law (Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 785, 56 Cal.Rptr. 128), its resolution depends on an evaluation of several interrelated factors. (Ibid.; Rest.2d Torts, § 520.) The rationale supporting the imposition of strict liability for abnormally dangerous activities is "one of allocating a more or less inevitable loss to be charged against a complex and dangerous civilization, and liability is placed upon the party best able to shoulder it." ( Smith, supra, at p. 785, 56 Cal.Rptr. 128, quoting from Professor Prosser.)

PG & E argues that the activity to be analyzed is limited to the "maintenance and operation of high-voltage electric power lines and transformers." Relying primarily on Pierce v. Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 212 Cal.Rptr. 283, PG & E argues that the only act in which it was engaged was the commonplace activity of supplying electrical power. We think PG & E's characterization of the question is overbroad.

In Pierce, supra, injury was sustained by reason of commonly known dangers associated with the transmission and supply of electricity. Here, in contrast, the focus of our inquiry is properly centered on the activity that created the risk of harm. Thus, the precise issue here, as properly framed, is whether the use of this type of electrical transformer containing a hazardous toxic substance in a densely populated location can be considered commonplace and within the experience of the larger community.

Having defined the nature of the activity to be analyzed, we look to the factors described in section 520 of the Restatement Second of Torts ⁵ to determine whether an activity is abnormally dangerous. ⁶ Because the trial court based its conclusion of non-ultrahazardousness on its finding that the activity was one of common usage, we focus our attention specifically on that Restatement factor.

Under the Restatement view, it is not necessary that all of the factors be present in a particular case. However, "The usual dangers resulting from an activity that is one of common usage are not regarded as abnormal, even though a serious risk of harm cannot be eliminated by all reasonable...