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
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)
In 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, 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, 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.
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.
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.
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 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
Additional factual and procedural information is provided as relevant in the ensuing discussion.
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.
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 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
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 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,
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 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.
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
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 the plaintiffs suffered 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.)
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.)
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 [35 Cal.Rptr.3d 799], 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.)
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 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.)
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
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 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.
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.
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
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 Statutes 1931, 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 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 Statutes 1953, 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.) Section 13007 permits 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...."
Then, in 1971, apparently in reaction to the decision in People v. Williams (1963) 222 Cal.App.2d 152 [34 Cal.Rptr. 806], 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 [188 Cal.Rptr. 913] (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 reinserted 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 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
The most apropos potential case we encountered was County of Ventura v. So. Cal. Edison Co. (1948) 85 Cal.App.2d 529 [193 P.2d 512]. 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 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." (So. Cal. Edison Co., 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).
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.
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 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 [183 Cal.Rptr.3d 548] ["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.)
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, 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
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.
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 into 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 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
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 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."
In reaching these conclusions, the trial court highlighted multiple exemplar discovery abuses it found were committed by Cal Fire.
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.
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 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.
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
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 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 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] 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.
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
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."
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.
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.
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 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.
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.
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
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 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.
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
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 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
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 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 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).)
As noted above, after judgment was entered, the trial court considered defendants' motions for discovery sanctions against Cal Fire, and granted the
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 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
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 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.
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 [141 Cal.Rptr. 315, 569 P.2d 1303]. 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.
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 Code sections 13009 and 13009.1, Civil Code section 1717, and Code of Civil Procedure section 1021.8.
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
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 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.
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 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
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.
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
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).)
Nicholson, Acting P. J., concurred.
ROBIE, J., Dissenting. —
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 13009.1
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 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
I believe the statutory history supports this interpretation. As my colleagues note, Statutes 1931, 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 Statutes 1931, chapter 790, this court in Haverstick v. Southern Pac. Co. (1934) 1 Cal.App.2d 605 [37 P.2d 146], found sufficient evidence to hold the "Southern Pacific Company (a Corporation)" (some capitalization omitted) 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 chapter 790, 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. (Cf. Stats. 1931, ch. 790, § 1, p. 1644 with id., § 2, p. 1644; see also People v. Southern Pacific Co. (1983) 139 Cal.App.3d 627, 636-638 [188 Cal.Rptr. 913] [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 pursuant to section 2 (Stats. 1931, ch. 790), the railroad was found
In 1939, the Health and Safety Code was enacted and included former section 19, which defined a person as "any person, firm, association, organization, partnership, business trust, corporation, or company." (Stats. 1939, ch. 60, § 19, p. 484.) 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, §§ 1-3, p. 682.) 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) 222 Cal.App.2d 152 [34 Cal.Rptr. 806], 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 sections 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 Cal.App.2d 529 [193 P.2d 512], 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." (County of Ventura 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
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 [72 Cal.Rptr.3d 53], 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." (Id. at p. 1075.) 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. 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 (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." (Maj. opn. ante, at p. 181.) 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
This interpretation is supported by City of Los Angeles v. Shpegel-Dimsey, Inc. (1988) 198 Cal.App.3d 1009 [244 Cal.Rptr. 507]. 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 Cottle
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 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 the Department of Forestry and Fire Protection's (Cal Fire) 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 Cal Fire deliberately withheld thousands of WiFITER (Wildland Fire Investigation Training and Equipment Fund) documents, and merely conclude that Cal Fire's conduct "evinced a disregard for the discovery process." The terminating sanctions appear to rest on this nonwillful conduct and Investigator
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 on the pleadings and then issuing postjudgment terminating sanctions does not represent the actions of a fair and impartial judge.
