(Mendocino County Super. Ct. No. 75347) (Mendocino County (Super. Ct. No. 75547)
As modified May 4, 2000. There is no change in judgment. The petition for rehearing is denied.
CHRISTINE LYNETTE KUNS ET AL., PLAINTIFFS AND APPELLANTS,
CITY OF UKIAH, DEFENDANT AND RESPONDENT.
BILLY MACK CLARK ET AL., PLAINTIFFS AND APPELLANTS,
CITY OF UKIAH, DEFENDANT AND RESPONDENT.
(Mendocino County Super. Ct. No. 75347) (Mendocino County (Super. Ct. No. 75547)
Johnson & DeMarchi
Thomas F. Johnson
Linda S. Mitlyng
William B. Phillips
(Attorneys for Appellants/Plaintiffs -Christine Kuns et al.,
Billy Mack Clark et al.)
Shapiro, Galvin & Shapiro, Piasta & Moran
Joseph A. Piasta II
Adrienne M. Moran
Dana Beernink Simonds
(Attorneys for Respondent/Defendant - City of Ukiah)
CERTIFIED FOR PUBLICATION
This is an appeal from a summary judgment in favor of the City of Ukiah (the City) in a consolidated action arising out of a fatal residence fire which occurred after the City's utility company shut off the power to the residence of Christine and Emitte Kuns. We find that triable issues of material fact exist as to causation of the fire and reverse the judgment.
On December 26, 1995, the City of Ukiah's utilities department disconnected the power to the home that Christine Kuns shared with her husband, Emitte Kuns and six young children. Four of the children died of smoke inhalation in a fire that broke out that night, apparently started by a candle left unattended in a macramé plant hanger in the living room. On December 5, 1996, Billy Mack Clark, father of Ashley Clark age 8, who survived the fire, and Brandon, age 4, Aaron, age 5 and Amy Clark, age 7, who did not survive the fire, filed a complaint for wrongful death and negligence against the City and the County of Mendocino. *fn1 The complaint was subsequently amended to add a cause of action for negligent infliction of emotional distress. *fn2 Christine Kuns filed a complaint against the City, subsequently amended to allege wrongful death, negligence and negligent infliction of emotional distress. *fn3 The complaints were consolidated pursuant to stipulation of the parties on July 16, 1997.
On August 13, 1998, the City filed a motion for summary judgment in the consolidated case. In addition to various arguments regarding claims against other departments of the City which are not before us, the City's motion was based on the contention that Public Utilities Code sections 10010 and 10010.1 did not create a duty of care owed to appellants and that appellants could not establish that any act or omission of the City proximately caused the fire.
The following facts were submitted to the court for purposes of the motion for summary judgment. The City billed Christine and Emitte Kuns $177.68 for utilities on October 27, 1995. They failed to make any payment on the October bill, and the utility records showed that a delinquency notice was sent on December 4, 1995. Christine denied ever receiving the December 4 notice and the City did not retain a copy of the notice. Erin Tarkhanian, the City's customer service representative stated that the December 4 notice stated a "pay by" date and warned that if payment was not made, a 48-hour notice would issue and penalties would be assessed. The form of notice produced by the City did not mention disconnection of service. *fn4
Another notice was sent on December 14, 1995, which stated: "current charges: $200.01, past due charges $177.68, late fee $5.00, total due $382.69, pay by 12/21/95." *fn5 The notice was headed "final notice" and provided that the account was past due and unless payment in full was made by the "pay by" date, the power would be disconnected. *fn6 Christine received this notice. She believed that there was an amount due, but expected she would receive a 48-hour notice prior to any disconnection. Utility records showed that Christine had been behind in payments to respondent on many occasions, but had contacted the City and eventually paid.
On this occasion, the City made no attempt to give either a 24 or a 48-hour notice of disconnection. Christine was home at all times because of her new baby, and did not receive any additional notice. The statutory period required by section 10010.1 would have allowed the City, with proper notice, to disconnect the power 15 days from the date of the notice, on December 29. Christine stated that if she had received a 48 or 24-hour notice she would have found a way to pay the bill before the 29th. In addition, Emitte had enough cash on the 26th to cover the past due portion of the bill.
On December 26, 1995, the day after Christmas, the City disconnected the utilities. Christine, Emitte, and Christine's stepfather, Mr. Whitcombe, called the City that day to attempt to get the power reconnected. Christine Kuns had $200 on deposit with the City's utilities department. Whitcombe requested that the City turn the power on that day, and promised to pay in seven days. Emitte offered $250 or $300 cash, which would have covered the past due amount, but was told that he had to pay the entire amount, including disconnect fees, before the power would be turned on. The City did not offer to apply the deposit toward payment of the account.
City personnel stated that if Emitte had spoken with the City prior to the power being disconnected, the City would have accepted his payment, which would have covered the past due amounts. Private and state funded assistance programs were no longer available because the power had already been turned off. Emitte and Christine were not offered information about or offered an opportunity to amortize the past due payment at this time. *fn7 They were told that they would have to pay the entire past due amount, current amounts due, disconnect and reconnect fees, before the power would be turned on. The total due was $417.69.
Unable to negotiate a reconnection of the power with the City, Christine and Emitte borrowed candles from their neighbor to light the house that night. Christine put one candle in a jar in the living room and one on a dish in the kitchen. Emitte put the third candle in the soil of a plant hanging in a macramé plant hanger above the couch. After Christine and the six children went to bed, Emitte left the house. He left the candle in the potted plant in the plant hanger unattended. That candle apparently ignited a fast burning fire which, combined with the foam-cushioned couch, Christmas tree and gift wrappings, quickly produced high temperatures, large quantities of smoke, heat and toxic gases.
Christine, who took phenobarbital for her epilepsy, did not awaken until Ashley came into her bedroom and tugged on her arm saying that her throat hurt. Christine saw an orange glow in the hallway and panicked. She ran down the hallway, past the bedrooms where the other children were sleeping, and saw the couch in the living room in flames. She could smell smoke, but did not see any smoke in the house. She ran to the neighbor's house for help, then returned and grabbed two of her children. The other four children died in the fire.
The court granted the City's motion for summary judgment. Judgment was entered on April 21, 1999, and Christine Kuns and Billy Mack Clark appealed. *fn8
A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must show "that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subd. (o)(2).) "[T]he burden [then] shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (o)(2).) The sole function of the trial court is to find issues, not to resolve them. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511.) The trial court's ruling on a summary judgment motion is subject to de novo review. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674-675.)
Oral argument on the motion for summary judgment in this case as well as the court's written statement of decision, focused on the existence of a duty on the part of the City as well as proximate cause. However, the order granting summary judgment mentioned duty only in a footnote in which the court stated that it rejected the City's argument that Public Utilities Code sections 10010 and 10010.1 do not create a duty of care.
The court's judgment was based, not on the issue of duty, but on its determination that appellants could not establish causation as a matter of law. Specifically, the court stated: "Spoiled refrigerated food is damage which can be easily and directly linked to a loss of electrical power." In contrast, the court found: "Destructive fires result from negligent use of open flames and such devices regardless of whether or not the electrical power to a residence is connected or even exists." In addition, the court relied on the doctrine of judicial estoppel to support its decision. This determination was based on statements made by Christine and Billy Mack Clark in child custody proceedings to the effect that Emitte's actions caused the fire. Because both of the court's conclusions are erroneous, we reverse the judgment. *fn9
The failure to give the statutorily required notice and the termination of the power were not the physical causes of the fire. But the law does not look to Newton's laws of motion to explain cause and effect, but to its own definition of "substantial factor" in determining legal cause. The question is whether the premature cutting off of the power is a legally causative factor. As explained below, whether the City's conduct or the later intervening actions of Emitte Kuns or others constituted sole or joint substantial factors in causing the damages is the type of question about which reasonable men and women can differ - a dispute of contested factual issues properly allocated to and resolved by the fact-finding capability of a jury. (Braman v. State of California (1994) 28 Cal.App.4th 344, 355-356.) Whether the intervention of a later cause is an interconnected risk of the City's conduct so that responsibility should not be terminated, or is such that ordinary human experience should anticipate it, is the type of traditional proximate cause normally determined by the hindsight of jurors. (See generally Prosser & Keeton, Torts (5th ed. 1984) ch. 7, §§ 41-45, pp. 263-321.) Whether the City's Acts Were a Substantial Factor in Causing Appellants' Injury is a Jury Question
The City correctly frames the issue: would the fire have occurred even if the City complied with the notice requirements and did not disconnect the electricity until December 29? We disagree with the City's analysis of the issue. Specifically, the City argues that the harm indisputably would have occurred even if the disconnection had been properly noticed because Christine and Emitte Kuns could not have paid on December 29, and would have used candles regardless of when the power was disconnected.
This issue, in light of the evidence produced to date, is a factual question for the jury. The City failed to produce undisputed evidence that Christine Kuns would not have paid the past due amounts if she had received a 48 or 24-hour notice of disconnection. *fn10 There was no evidence that Kuns could not have raised the money if she had been given proper notice and allowed the statutory time in which to avoid disconnection and the need to use candles for light in the darkness of their residence. In addition, appellants presented evidence that the family would not have been using candles if the electricity had not been abruptly terminated.
The determination of causation rests on a jury's common sense analysis of the facts based on ordinary experience guided by applicable legal principles. The appellant's burden of proof to establish causation is explained in the Restatement Second of Torts: "It is enough that [plaintiff] introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists." (Rest.2d Torts, § 433B, com. b, p. 443.)
The City's conduct may be said to be a cause of appellants' harm if the acts of the City were a substantial factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1049; Rest.2d Torts § 431.) Causation is generally a question of fact for the jury. (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 520.) ""`Legal cause' exists if the actor's conduct is a `substantial factor' in bringing about the harm and there is no rule of law relieving the actor from liability. [Citations.]" . . . The question of causation is one of fact; it becomes a question of law only where reasonable people do not dispute the absence of causation. [Citation.] It is also a question of fact when the issue is whether the defendant's negligence was a substantial factor in causing injuries inflicted during a criminal attack by a third party. [Citation.] The defendant has the burden of establishing there was not `"room for a reasonable difference of opinion"' on the issue of causation. [Citation.]" (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1235.) "The standard is high for finding as a matter of law that the material facts show a lack of causality . . . ." (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.) Whether an act is the cause of an injury is a question of law only when "the facts are uncontroverted and only one deduction or inference may reasonably be drawn therefrom." (Sanders v. Atchison, Topeka & Santa Fe Ry. Co. (1977) 65 Cal.App.3d 630, 649.)
The City relies on Tovar v. Southern Cal. Edison Co. (1988) 201 Cal.App.3d 606 and Capolungo v. Bondi (1986) 179 Cal.App.3d 346 to argue that causation is absent in this case. Those cases are not similar to the facts at issue. Tovar involved a suit by the residents of a motel against a utility and the owners of the motel. The applicable statute required 10 days notice of intent to terminate utility services when the master account was in arrears. On November 14, the utility left a notice that services would be terminated on November 18 due to arrearages in the master customer's account. (Tovar v. Southern Cal. Edison Co., supra, 201 Cal.App.3d at p. 611.) However, the utility actually terminated service on November 15, pursuant to the direction of the landlord. (Id. at p. 610.) The tenants claimed that the termination notice did not comply with the statutory notice requirements applicable when the account is in arrearages. The court concluded that regardless of the acts of the utility, the cause of the termination was the order by the landlord, not the improper notice based on arrearages in the master account. (Id. at p. 610.) Unlike this case, Tovar is a case where the act of the landlord caused the plaintiff's harm independently of any action by the power company. The landlord in Tovar solely and directly caused the termination of service.
In Capolungo, the plaintiff was injured when she swerved her bicycle around defendant's parked car and was hit by a passing motorist. Plaintiff argued that defendant was negligent per se because he had parked in a yellow zone for longer than the 24-minute limit. (Capolungo v. Bondi, supra, 179 Cal.App.3d at p. 349.) The court found that regardless of whether defendant's car had been parked for more or less than 24 minutes, plaintiff would have swerved around it and been injured. The element of legal causation was missing because the accident would have happened even if the car had been parked for the legal time limit. (Id. at p. 355.) ...