U.S. v. Southern California Edison Co.

Decision Date06 February 2006
Docket NumberNo. CIVF015167OWWDLB.,CIVF015167OWWDLB.
Citation413 F.Supp.2d 1101
CourtU.S. District Court — Eastern District of California

Courtney Jack Linn, Michael Andrew Hirst, Sacramento, CA, Kirk Edward Sherriff, United States Attorney's Office, Fresno, CA, R. Jeffrey Moulton, US Department of Agriculture, San Francisco, CA, for Plaintiff.

George L. O'Connell, Craig C. Allison, Steven S. Kimball, Stevens & O'Connell LLP, Sacramento, CA, for Defendant.


WANGER, District Judge.


This is an action for damages stemming from a fire allegedly ignited by electrical equipment operated by Defendant Southern California Edison Company ("Defendant" or "SCE") in Big Creek, California. The fire caused damage to property belonging to the United States of America ("Plaintiff"). Plaintiff alleges that the fire ignited when a squirrel came into contact with a 12kV transformer located within an enclosure known as the 12kV substation.

The parties cross-move for partial summary judgment on the issue of whether the 12kV substation is covered by the Federal Energy Regulatory Commission ("FERC") licenses held by SCE. Even if the 12kV substation is not covered by the terms of the FERC licenses, the government moves in the alternative for partial summary judgment on the issue of whether SCE is nonetheless liable under the terms of the licenses. Finally, if SCE is found not to be liable under the terms of the license, the government moves for partial summary judgment that SCE is liable in trespass regardless of fault.

The parties have each filed lengthy statements of undisputed fact and evidentiary objections thereto. (See Docs. 275, 284 Attch. 1; 289; 291; 294; 297.)


SCE operates a hydroelectric power generation facility in Big Creek, California, which is located on federal lands, inside the boundary of the Sierra National Forest. On August 24, 1994, a fire ignited in the vicinity of Big Creek Powerhouses Nos. 2 and 2A. (SCE Undisputed Fact ("SCE UF") # 1, Doc. 298; Plaintiff's Undisputed Fact ("USA UF") # 1, Doc. 297.) The fire ("Big Creek fire") allegedly burned more than 5,000 acres of National Forest lands before it was extinguished. (Second Amended Complaint ("Complaint"), ¶ 6.) The fire apparently began when a squirrel came into contact with one of the 7.2/12kV transformers located in a switchyard (the "12kV substation") near Powerhouses Nos. 2 and 2A. (SCE UF #3; USA UF # 3.)

Both Powerhouse Nos. 2 and 2A are owned and operated by Defendant under licenses from the Federal Energy Regulatory Commission ("FERC"). (USA UF # 8 & # 14.) The 12kV substation is a fenced-in yard located approximately 400 feet from Powerhouses Nos. 2 and 2A and contains various pieces of equipment, including several 12kV transformers. (See SCE UF # 8.) The 12kV transformers located within the 12KV substation step up a 7,000 volt ("7kV") power source from Big Creek Powerhouse No. 2 to 12,000 volts ("12kV"). (SCE UF # 10.)

The Complaint contains fifteen causes of action: (1) breach of the Project No. 2175 license, (2) indemnity under the Project 2175 license, (3) breach of Project No. 67 license, (4) indemnity under the Project 67 license, (5) breach of Memorandum of Understanding, (6) breach of Special Use Permit, (7) trespass to federal lands, (8) trespass in violation of California Civil Code § 3346, (9) trespass by fire, (10) Trespass under California Civil Code § 3334, (11) negligence per se for violation of Cal. Pub. Res.Code § 4291, (12) liability under Cal. Health and Safety Code §§ 13007 and 13008, (13) negligence based on Pub. Util. Code § 451, (14) negligence, (15) recovery of interest, penalties, and investigative, administrative and collection costs. (Doc. 172, filed Nov. 30, 2004.2)

During the early stages of discovery, SCE responded to requests for admissions, admitting that the Project 2175 and 67 Licenses applied to the Transformer and 12kV substation. (See Doc. 126, filed Sept. 21, 2004.) After reviewing documents produced by the government in discovery, SCE moved to withdraw these admissions. On October 22, 2004, the magistrate judge granted SCE's motion to withdraw admissions. (Doc. 150, filed Oct. 22, 2004.) The United States was given leave to amend its complaint and submit a plan for additional discovery. (Doc. 150 at 8-9.) During the hearing on the motion to withdraw, the magistrate judge suggested that the scheduling order in this case be amended to allow additional time for discovery. The parties then moved to modify the scheduling order. (Does. 157, filed Oct. 27, 2004, and 158, filed Oct. 28, 2004.)

With the original summary judgment motion approaching (and the scheduling order not yet modified by the court), the parties filed motions for partial summary judgment. (Doc. 139, filed Oct. 15, 2004; Doc. 159, filed Oct. 29, 2004; Doc. 176, filed Nov. 30, 2004.) At the hearing on those motions, the parties agreed to postpone summary judgment proceedings to provide both sides additional time for discovery for all but one discrete legal issue: Whether the United States is entitled to assert a claim for prejudgment interest on any recovery under the FE RC licenses. The district court granted summary judgment for the government on this issue, finding that such a claim may be pursued. (See Doc. 205, filed Jan. 25, 2005.)

Following the hearing on the first round of summary judgment motions, a new scheduling order was entered. (Doc. 211, filed Feb. 6, 2005.) Among other deadlines, the revised scheduling order set April 5, 2005 as the deadline for "further disclosure of experts" and May 5, 2005 as the deadline for "supplemental expert disclosure." (Id. at 2.) The district court also stated that "either side may disclose any further experts by April 5th, and any rebuttal or supplemental experts to the new experts by May 5th." On April 5, 2005, Edison designated Joel Prehiem and Geoffrey Rabone, both Edison employees, as expert witnesses. The United States disclosed no expert on this date. On May 5, 2005, the United States designated Kevin J. Mara and Cynthia A. Whelan as experts. The United States later withdrew Ms. Whelan as an expert. Mr. Mara's expert report was provided to SCE along with the May 5, 2005 disclosure. On May 23, 2005, Edison moved to strike Mr. Mara's opinion. (Doc. 230.)

In a decision filed July 13, 2005, the magistrate judge found that the district court "did not intend to limit the May 5th designation to supplementation to an initial disclosure or rebuttal to other experts designated." (Doc. 250 at 5.) In the alternative, even if the modified scheduling order only permitted the designation of rebuttal witnesses on May 5, 2005, the magistrate judge's July 12, 2005 order found that Mr. Mara's opinion was proper rebuttal testimony. (Id.)

SCE requested reconsideration of the magistrate judge's order. (Doc. 260, filed July 27, 2005.) The district court, interpreting the language of its own order, found that Mr. Mara's opinion was not proper rebuttal testimony and struck his expert opinions. (Doc. 272, filed Sept. 23, 2005.)3


Summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(e); California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). Therefore, to defeat a motion for summary judgment, the non-moving party must show (1) that a genuine factual issue exists and (2) that this factual issue is material. Id. A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence must be viewed in a light most favorable to the nonmoving party. Indiana Lumbermens Mut. Ins. Co. v. West Oregon Wood Products, Inc., 268 F.3d 639, 644 (9th Cir.2001). Facts are "material" if they "might affect the outcome of the suit under the governing law." Campbell, 138 F.3d at 782 (quoting Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir.2000). However, if the nonmoving party has the burden of proof at trial, the moving party must only show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden of proof, the non-moving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. Triton Energy Corp., 68 F.3d at 1221. The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux, 263 F.3d at 1076.

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing...

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