WILLHITE, Acting P. J.—
This case is before us for the second time. It involves a homeowner — plaintiff Simona Wilson — who bought a house next door to an electrical substation (the Topaz substation) operated by defendant Southern California Edison Company (Edison). After remodeling her master bathroom four years after she moved into the house, Wilson felt low levels of electricity in her remodeled shower when she adjusted the showerhead. This flow of electricity was due to neutral-to-earth voltage (NEV), also referred to as stray voltage, on her property. Because NEV is unavoidable in a grounded electrical system, such as the one operated by Edison, Edison was unable to completely eliminate it from Wilson's property as Wilson insisted, although it recommended ways to reduce the voltage in her shower to below-perceptible levels. Fearing for her safety and the safety of her three children, Wilson moved out of the house into a rental property. Because she could not afford to pay both the rent on that property and the mortgage on her house, the house went into foreclosure, ruining her credit.
Wilson sued Edison for negligence, intentional infliction of emotional distress (IIED), and nuisance, and sought punitive damages. In the first trial, the jury found in favor of Wilson on all three claims, awarding $550,000 on the negligence and IIED claims, $500,000 on the nuisance claim, and $3 million in punitive damages. Edison appealed. In a published decision (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123 [184 Cal.Rptr.3d 26] (Wilson I)), we found there was insufficient evidence to
On retrial the trial court, over Edison's objections, allowed Wilson to present extensive evidence of incidents related to stray voltage at the house that occurred before Wilson bought it and at other nearby properties, and Edison's conduct with regard to those incidents. The jury again found in favor of Wilson, and awarded her $1.2 million in damages on her nuisance claim. Wilson moved for her attorney fees under Code of Civil Procedure
Edison appeals from the judgment in favor of Wilson, and Wilson cross-appeals from the denial of her attorney fee motion.
Edison contends in its appeal that: (1) it is entitled to judgment because, as a matter of law, the harm Wilson suffered cannot outweigh the public benefit of providing electricity; (2) it is entitled to a new trial because the trial court improperly allowed Wilson to present inflammatory irrelevant evidence related to stray voltage incidents involving prior owners or tenants of the property or other nearby properties; (3) it is entitled to a new trial on damages (if not a retrial on both liability and damages) because the jury improperly included in its award damages to which Wilson was not entitled, such as attorney fees; and (4) it is entitled to a new trial on damages (if not a retrial on both liability and damages) because the $1.2 million award is excessive.
In her cross-appeal, Wilson contends the trial court erred in denying her request for attorney fees under section 1021.5 because the legal right that was enforced in Wilson I was important and protects the public interest, the published opinion conferred a significant benefit on the general public, and the cost to pursue a case against a large entity such as Edison transcended her personal interest.
We find that based upon the evidence presented at trial, we cannot conclude as a matter of law that the harm Wilson suffered does not outweigh
As was the case in Wilson I, "[a]nalysis of the facts and issues in this case requires a basic understanding of electricity and electrical distribution systems." (Wilson I, supra, 234 Cal.App.4th at p. 130.) We therefore include here our discussion of the fundamentals of electrical distribution systems and electricity from our earlier opinion:
Wilson and her then-husband Ryan bought the house at issue — located at 904 Knob Hill Drive in Redondo Beach — in March 2007, when she was pregnant with her second child.
Wilson first became aware there was a voltage issue affecting her property on Friday, August 22, 2008, when Ryan came home and found a tag on their door saying that the gas had been shut off due to electricity at the gas meter, and instructing them to contact Edison. Because they did not get the notice until Friday night, they had to wait until Monday to contact Edison, so they had no gas for the weekend. On Monday, Ryan contacted Edison, and Edison sent someone to the house. That person attached a wire to the gas meter and ran the wire to the substation. Wilson was told that the purpose of the wire was to allow Edison to monitor the voltage on the gas meter in order to satisfy the gas company that it was safe to turn the gas back on.
In April 2010, Wilson got another notice from the gas company that there was electricity at the gas meter. This time, however, the gas company did not turn off the gas. Wilson did not contact Edison or the gas company, since Edison was still monitoring the gas line and the gas had not been turned off. Her reaction to the notice "[r]anged from annoyance to fear, irritation, frustration."
In February 2011, Wilson remodeled her master bathroom. Her father, a tile and stone contractor, did the work. He removed the bathtub, which was sitting on a wooden pedestal, and changed the drain to convert it to a tiled stall shower on a concrete slab. The drain was connected to a cast iron pipe that ran through the ground. He also added an outdoor shower. The remodel took several weeks, and was completed in March 2011.
After the remodel was completed, Wilson noticed that every time she adjusted the showerhead in the master bathroom shower she would "get this tingling in [her] arm." She is a swimmer, and thought she might have a pinched nerve. On April 19, 2011, she was taking a shower and told her boyfriend, Jason Stelle, that she thought she had a pinched nerve, so he said
Wilson called her father and told him about what they felt. Her father was concerned that one of his staples had nicked a wire during the construction, and wanted his electrician to do some testing. Wilson's father brought his electrician to the house the next day. The electrician did some testing, and confirmed there was voltage in the shower; he also found voltage at the gas meter, water meter, two hose bibs, and the waste and overflow pipes for the bathtub. He found that even after he turned off all power to the house there was voltage in those locations. He recommended that they call Edison.
Stelle, who worked from home and therefore was able to meet with service people at the house, called Edison that day (Apr. 20) or the next day.
Wilson called Edison several times the following week, until April 27, when Matt Norwalk, a technical specialist in Edison's power quality department went to the house and spoke to Stelle. Norwalk took voltage measurements in the master bathroom shower and gas meter, both with a resistor and without one.
In addition to taking the measurements, Norwalk showed Wilson a graph of the readings on her gas line, which Edison had been monitoring since 2008. Wilson noted that there was a "huge chunk of data missing." Norwalk explained that the memory card on the machine that was monitoring the voltage had run out, and Edison did not catch it from December 2010 until April 2011. But he showed Wilson that the measurements that were taken right before the memory card ran out and right after it was replaced were nearly identical.
The parties dispute what happened next.
According to Wilson, Norwalk told her that the conditions at her house were within Edison's safety standards. Norwalk recommended that she shower at offpeak hours, when people were not using as much electricity, so the load on the substation was not as great. She testified that neither Norwalk nor either of the other Edison representatives offered any way to fix the stray voltage problem, although she admitted they gave recommendations about ways to make the master bathroom shower less conductive, including possibly bonding the showerhead to the drain in the shower to make it so there was no shock potential. Wilson did not find those recommendations helpful because she believed they were temporary measures; she wanted a permanent solution that would completely eliminate the stray voltage on her property.
According to Norwalk, Wilson asked how Edison was going to get rid of the voltage at the gas meter and master bathroom shower, and he explained that, because it was stray voltage from the normal operation and delivery of electrical power from the substation, the only way to resolve it would be to either put isolators within the plumbing system or to bond the sewer line to the water line. Wilson's father asked him how that would be done, and Norwalk explained that it might require removing the tile floor of the shower (for bonding) or cutting holes in the wall (for isolators). Norwalk told Wilson
A few days after the May 6 meeting, Wilson had a telephone conversation with Rick McCollum, an investigations manager for Edison. What was said during that conversation also is in dispute.
According to McCollum, he told Wilson that Norwalk and other technicians had offered some solutions to the stray voltage at her house, and that Edison would be happy to pay to implement those solutions, either by having Wilson use her own plumber and be reimbursed by Edison or by having Edison hire a plumber to do the work. Wilson, however, said that she did not want people traipsing through her house. At one point, he asked her what she wanted from Edison, and she said she wanted Edison to buy her house.
According to Wilson, McCollum only suggested bonding as a way to minimize the stray voltage in the shower, and did not say that Edison would pay for it. She did not tell McCollum that she wanted Edison to buy her house.
Wilson continued to live in the house with Stelle and her children.
In September 2011, the same day she filed the present lawsuit, Wilson moved out of the house. She moved to a rental property about three miles away. In October, shortly after she moved out, she received a letter from Edison, offering to fix the stray voltage issue by putting in plastic plumbing
At the time Wilson moved out of the house, she was current with the mortgage payments, but as a result of having to pay to live at the rental property, her house went into foreclosure. The foreclosure dropped her credit rating by over 350 points, and all of her credit cards dropped her down to bare-minimum levels.
In February 2013, Edison found out that Wilson's house had been sold. Norwalk met with the new owners' broker and told him about the tingling sensation felt by the previous owner. He asked to take voltage measurements throughout the property, both inside and outside. He found perceptible levels of voltage in only two places: the master bedroom shower and the outside shower.
Norwalk discussed the options with the plumber, and they decided to try the dielectric unions first, to see if that would eliminate the voltage on the master bathroom shower and the gas line. After they were installed, Norwalk measured the voltage in the shower and at the gas line. At the gas line he measured zero volts with and without a resistor, but voltage remained at the shower. Edison brought the plumber back for another day to install sections of polyethylene piping in both the master bathroom shower and the outside shower. After that work was done, Norwalk measured zero volts with the resistor at all locations. Installation of all the isolators took two or three days, and cost just over $5,000.
In addition to installing the isolators, Edison tested other methods that might reduce the stray voltage at the property. In February 2013, Edison installed a dedicated transformer for the house, to see if isolating a transformer to that location would lower the stray voltage. It found that although the dedicated transformer lowered the stray voltage, it did not eliminate it entirely, and the fluctuation of load on the substation would bring the voltage up to a perceptible level.
Seamons lived in the house with his wife and children from July 2013 to May 2015. During that time, neither he nor any member of his family experienced stray voltage anywhere on the property. They moved out of the house for work reasons.
When Seamons was selling the house, he contacted Norwalk and asked him to come to the house to recheck the voltage measurements. Norwalk did so, and detected some voltage — slightly above one volt — on a spigot on the outside of the house. Edison brought in a plumber to install a section of polyethylene piping into the supply to the spigot, which reduced the voltage to zero. Norwalk also found zero volts at the master bathroom shower, the outside shower, and the gas meter. He provided those readings in writing to Seamons so he could provide them to the new owner. Since that time, Edison has not received any complaints of stray voltage regarding the property.
As we described in more detail in Wilson I, supra, 234 Cal.App.4th 123, Wilson's claims for negligence, IIED, and nuisance were tried before a jury. In that trial, a significant amount of evidence was presented related to the history of stray voltage at 904 Knob Hill Drive and the surrounding neighborhood, much of which we set forth in our statement of facts.
On remand, the case was assigned to a different judge. The trial court entered judgment in favor of Edison on the negligence and IIED claims, ordered Wilson's claim for punitive damages stricken, and set the matter for trial on the nuisance claim.
Before trial, Edison filed several motions in limine, including motions to exclude all evidence and argument relating to (1) the alleged existence of stray voltage at any property other than Wilson's, or at Wilson's property before she owned it, or (2) Edison's prior ownership of Wilson's property (or other nearby houses) or its putting those houses on the market in the 1990s. The trial court granted those motions to the extent they sought exclusion of evidence related to other properties or to Edison's putting Wilson's property on the market in the 1990s, but denied them to the extent they sought to exclude evidence related to the history of the property and its previous owners or tenants. In making its ruling, the court stated: "we need some context as to what Edison knew, when they knew it, what responses they took, and then how that dovetails or compares with the action of Edison in the particular period involving Ms. Wilson."
Wilson's attorney emphasized this evidence in his closing argument, criticizing Edison for failing to fix the problem, and asking the jury to send a message to Edison: "[T]he question is going to be whether Edison is going to get away with this. With your verdict, you can say no. You can say no, Edison, you are not going to get away with telling people over and over and over again that they are safe, that you fixed it.... They [i.e., Edison] don't care. What your verdict can do is make them care."
During deliberations, the jury sent out two questions.
The first question asked for clarification on question No. 8 on the special verdict form — "Did the seriousness of the harm outweigh the public benefit of Southern California Edison's conduct?" — asking, "What is meant on the part stating public benefit? i.e., is it the street? Southern California?" After conferring with counsel, the court sent a written response to the jury stating, "Without a specific geographical location, the focus is on the public benefit of Edison's conduct in supplying electricity to its customers."
The second question asked, "In this case, what is the definition of harm? (i.e., mental? physical? financial?)" In response, the court referred the jury to the first two subdivisions of CACI No. 2022.
Judgment was entered in favor of Wilson and against Edison in the amount of $1.2 million. Edison filed motions for a new trial and for judgment notwithstanding the verdict (jnov), and Wilson filed a motion for attorney fees.
In its new trial motion, Edison submitted the declarations of two jurors (one of whom voted in favor of Wilson) stating that the jury discussed and considered compensating Wilson for the value of her house, the damage to her credit, and her attorney fees, and agreed to a $1.2 million verdict based on these considerations. Based upon those declarations, Edison argued there was jury misconduct entitling it to a new trial. Edison also argued it was entitled to a new trial on the grounds that (1) the damages award was excessive; (2) there was insufficient evidence to support the damage award; (3) there was insufficient evidence to support a finding of liability; and (4) the court committed prejudicial error by admitting evidence related to the history of Wilson's property before she owned it. In its motion for jnov, Edison argued there was no substantial evidence to support the verdict because the evidence does not support that Wilson suffered "substantial actual damage" or that the gravity of any harm she suffered outweighs the social utility of Edison's distribution of electricity.
In her attorney fee motion, Wilson argued she was entitled to fees under section 1021.5 because she ultimately prevailed on an issue of broad public importance, i.e., whether the PUC had exclusive jurisdiction over claims related to stray voltage, and the cost to Wilson of litigating against Edison was disproportionate to her personal stake in the outcome of her case. She requested an award of over $3 million (a lodestar of just over $1 million, with a multiplier of three). This figure included her fees from both the first and the second trials, as well as the prior appeal.
First, the plaintiff must prove an "interference with the plaintiff's use and enjoyment of that property." (Covalt, supra, 13 Cal.4th at p. 937.)
Second, the plaintiff must prove "that the invasion of the plaintiff's interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer `substantial actual damage.' [Citations.] ... The degree of harm is to be judged by an objective standard, i.e., what effect would the invasion have on persons of normal health and sensibilities living in the same community? [Citation.] `If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncracies of the particular plaintiff may make it unendurable to him.' [Citation.] This is, of course, a question of fact that turns on the circumstances of each case." (Covalt, supra, 13 Cal.4th at p. 938.)
Edison contends on appeal that it is entitled to judgment because the tingling sensation Wilson felt, which could have been remedied for $5,000, cannot constitute a nuisance when weighed against the public benefit of Edison's conduct, i.e., providing electricity to the community. In making this argument, Edison defines the claimed nuisance as "a slight tingling sensation caused by stray voltage," and asserts that "Wilson's annoyance over the stray voltage was only reasonable — and so was only actionable — to the extent that the stray voltage was perceptible."
Edison's argument fails at its definition of the claimed nuisance in this case. As litigated by Wilson, the claimed nuisance — i.e., the allegedly unreasonable interference — was the presence of stray voltage on her property, whether perceptible or not. As she repeatedly stated, it was not sufficient to eliminate the perceptible voltage by bonding the showerhead to the drain or adding isolators; she wanted the stray voltage eliminated entirely. Thus, the alleged harm she suffered was not limited to the tingling sensation she felt in the master bathroom shower — or the shock she felt in June or July 2011 while using the outside shower. Based upon the evidence presented at trial, the jury could also find that Wilson suffered harm caused by the stray voltage even when it was not perceptible.
In contrast, in this case there is an ongoing physical invasion of Wilson's property — there is no dispute that there is stray voltage affecting her entire property. Moreover, there is no dispute that the stray voltage has, at times, been perceptible, causing a tingling sensation or a shock. Thus, if a jury concluded that a reasonable person would fear further encounters with perceptible stray voltage, it could find that that fear substantially interfered with Wilson's use and enjoyment of the property.
A jury also might find other kinds of harm caused by imperceptible stray voltage, such as limits on what could be done in a further remodel. As Norwalk counseled Seamons when they met to discuss the stray voltage at the property, Seamons would need to consult with Edison before doing renovations that involve plumbing to discuss what would need to be done to prevent perceptible stray voltage.
In identifying these possible harms, we do not mean to imply that the invasion Wilson alleges necessarily is substantial and that the harm she allegedly suffered outweighs the public benefit of Edison's provision of electricity. That is for a jury to decide. We simply point them out to demonstrate that the balancing that Edison contends favors it as a matter of law is not as simple as Edison makes it out to be. In light of the evidence presented at trial, we cannot conclude as a matter of law that Edison is entitled to judgment.
As noted, before trial Edison moved to exclude evidence regarding stray voltage incidents at houses other than Wilson's house, or incidents that
Wilson contends the evidence regarding the history of stray voltage at her property and other nearby properties is relevant to (1) notice as it relates to the element of unreasonableness; (2) the existence of a nuisance; (3) causation; and (4) why Wilson refused to accept Edison's offer to install isolators at her showers and gas line. She misunderstands the elements of a nuisance claim and ignores the facts of this case.
To prove her nuisance claim, Wilson has to prove (1) Edison's conduct caused an interference with her use and enjoyment of the property; (2) that the interference was substantial, i.e., that it caused her to suffer substantial actual damage; and (3) that the interference was unreasonable, i.e., that it was of such a nature, duration, or amount as to constitute unreasonable interference with her use and enjoyment of the land. (Covalt, supra, 13 Cal.4th at pp. 937-938.)
Wilson's second argument — that the evidence at issue is relevant to show the existence of a nuisance — is difficult to decipher. Relying upon product defect and negligence cases, Wilson appears to argue that evidence of similar occurrences in the past tends to establish that defendant had notice of a defect. She contends that Edison "hotly contested the existence of a nuisance," and the challenged evidence had a tendency to refute that because it showed that Edison had received a "constant stream of complaints" regarding stray voltage in the neighborhood but did nothing about it until it was forced to.
In Wilson's third argument, she contends that evidence of similar conditions in the neighborhood and of similar complaints in the past is relevant to show that the harm she suffered was from the same cause. Even if this were true, it ignores the fact that the cause of the interference with Wilson's property was not contested in this case. While Edison may have contested (and continues to contest) that the interference rises to the level of a nuisance under the law, it has never contested that the stray voltage at Wilson's property is caused by its conduct in transmitting and distributing electricity to the area.
In her final argument, Wilson contends that the challenged evidence was relevant because her "knowledge of Edison's treatment of all the prior occupants of her house regarding stray electricity ... was a factor in her
Although this last argument fails to show that the extensive evidence of prior stray voltage incidents that was presented at trial was relevant to Wilson's nuisance claim, it does suggest that there could be some relevance to a small subset of that evidence. Evidence of Wilson's knowledge of those incidents at the time she filed her lawsuit and moved out of the house with the intent not to return could be relevant to the extent that knowledge contributed to any fear of future incidents she experienced. The rest of the evidence regarding those incidents and incidents involving other properties, however, was irrelevant, and the trial court erred by allowing that evidence to be admitted.
Error in the admission of evidence is reversible only if it prejudiced Edison, i.e., if "there is a `reasonabl[e] probab[ility]' that it affected the verdict." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 [34 Cal.Rptr.2d 898, 882 P.2d 894].) "A `reasonable probability' in this context `does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.'" (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682 [36 Cal.Rptr.3d 495, 123 P.3d 931].) We find there is a reasonable chance that a result more favorable to Edison would have been reached had the challenged evidence been excluded.
First, the prior history of stray voltage on Wilson's property was raised throughout the trial, from Wilson's opening statement, through several witnesses who testified solely about that history, to closing argument.
Second, Wilson's counsel used that evidence extensively in his closing argument, contending that Edison had acted improperly for decades and asking the jury to send Edison a message through its verdict.
In light of our determination that the judgment must be reversed and the matter remanded for retrial, we need not address the other issues Edison raises in its appeal. And, because the judgment is reversed, Wilson no longer is the prevailing party. Therefore, her cross-appeal challenging the denial of her motion for attorney fees is moot.
The judgment is reversed and the matter is remanded for retrial on the nuisance cause of action. Wilson's cross-appeal is dismissed as moot. Edison shall recover its costs on appeal.
Manella, J., and Collins, J., concurred.
