Dep't of Forestry & Fire Prot. v. Howell

• Decision Date: 06 December 2017
• Docket Number: C076008,C074879
• Citation: 18 Cal.App.5th 154,226 Cal.Rptr.3d 727
• Court: California Court of Appeals Court of Appeals
• Parties: DEPARTMENT OF FORESTRY AND FIRE PROTECTION et al., Plaintiffs and Appellants, v. Eunice E. HOWELL et al., Defendants and Respondents.

18 Cal.App.5th 154

226 Cal.Rptr.3d 727

DEPARTMENT OF FORESTRY AND FIRE PROTECTION et al., Plaintiffs and Appellants,

v.Eunice E. HOWELL et al., Defendants and Respondents.

C074879

C076008

Court of Appeal, Third District, California.

Filed December 6, 2017

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.

Gary S. Garfinkle, Lafayette; Kenneth P. Roye for Plaintiffs and Appellants Brandt et al. and Grange Insurance Association.

Anderlini & McSweeney LLP, Terry Anderlini and G. Chris Andersen, San Mateo, for Plaintiffs and Appellants Richard Guy et al. and John Cosmez et al.

Downey Brand LLP, William R. Warne, Sacramento, Michael J. Thomas, Annie S. Amaral and Meghan M. Baker, Sacramento, for Defendant and Respondent Sierra Pacific Industries.

Matheny Sears Linkert & Jaime, LLP, Richard S. Linkert, Sacramento, 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, Sacramento, for Defendants and Respondents Eunice E. Howell, etc., J.W. Bush and Kelly Crismon et al.

Deborah J. La Fetra, Sacramento, 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, San Francisco, 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.

BUTZ, J.

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 landowners¹ in 2009 and 2010 against defendants Eunice E. Howell, individually, and on 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 case pursuant to Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 5 Cal.Rptr.2d 882 ( 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 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 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 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...