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Kuns v. City of Ukiah

April 07, 2000

CHRISTINE LYNETTE KUNS ET AL., PLAINTIFFS AND APPELLANTS,
v.
CITY OF UKIAH, DEFENDANT AND RESPONDENT.
BILLY MACK CLARK ET AL., PLAINTIFFS AND APPELLANTS,
v.
CITY OF UKIAH, DEFENDANT AND RESPONDENT.



(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,
v.
CITY OF UKIAH, DEFENDANT AND RESPONDENT.
BILLY MACK CLARK ET AL., PLAINTIFFS AND APPELLANTS,
v.
CITY OF UKIAH, DEFENDANT AND RESPONDENT.

(Mendocino County Super. Ct. No. 75347) (Mendocino County (Super. Ct. No. 75547)

Attorneys: 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.

BACKGROUND

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

DISCUSSION

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 ...


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