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Perkin v. San Diego Gas & Electric Co.

California Court of Appeals, Fourth District, First Division

April 11, 2014

ROBERT PERKIN et al., Plaintiffs and Appellants,
SAN DIEGO GAS & ELECTRIC COMPANY et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Nos. 37-2008-00093080- CPU-NP-CTL; 37-2011-00097746- CU-NP-CTL Richard E. L. Strauss, Judge.

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[Copyrighted Material Omitted]

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Adler Law Group, E. Elliott Adler; The Kane Law Firm, Steven S. Kane, Bonnie E. Kane; Frantz Law Group, James P. Frantz; Niddrie Fish Addams and David A. Niddrie for Plaintiffs and Appellants.

Quinn Emanuel Urquhart & Sullivan, Kenneth R. Chiate, Harry A. Olivar, Jr., Kristen Bird, Jeffrey N. Boozeil; and C. Larry Davis for Defendants and Respondents.


HUFFMAN, Acting P. J.

Robert and Janet Perkin (together the Perkins) appeal a judgment of dismissal entered following the superior court sustaining San Diego Gas & Electric Company and Sempra Energy's (together SDG&E) demurrer to the Perkins' second amended complaint without leave to amend. The superior court found the applicable statute of limitations period, three years, had not been tolled by the pendency of a related class action because the Perkins' home was outside the "fire zone" depicted by a map, which served as an exhibit to one of the class action complaints. We conclude that the related class action complaint did not provide SDG&E with notice of potential claims as required by our high court in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 [245 Cal.Rptr. 658, 751 P.2d 923] (Jolly) and the unique characteristics of the purported class action made clear that the intended class would not be certified. Accordingly, we affirm.


"From October through early November 2007, seven Southern California counties were enduring 11 major wildfires, driven by the notorious Santa Ana winds and other adverse weather conditions. In San Diego County, seven of the eight localized fires burned north of Interstate 8 (including [Witch Creek, Guejito, and Rice Canyon], while one more (Harris) burned south of Interstate 8. Some of the fires merged with others and were designated by firefighters and responsible agencies as fire complexes."

"In response to the spread of the fire complexes, starting October 21, 2007 and extending for 16 days, many evacuation orders were issued by the San Diego County Sheriff's Department and other entities, and were lifted at

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various times. Shelter was provided to evacuees by various governmental and nonprofit agencies. After extensive firefighting efforts, the fires were mainly contained by October 31, 2007, but some continued into early November 2007. These three fires [(Witch Creek, Guejito, and Rice Canyon)] burned at least 1, 424 homes and caused the evacuation of more than 300, 000 persons. Eventually, more than 20, 000 insurance claims were filed by various residents and businesses for property damage and loss of use."

In the aftermath of the fires, starting in late 2007, lawsuits began to be filed against SDG&E. Some of the first complaints were purported class actions, two of which are relevant here. The first entitled Clark v. San Diego Gas & Electric Company (Super. Ct. San Diego County, No. 37-2007-00081605-CU-NP-CTL) (Clark Purported Class Action) was filed November 13, 2007. The second entitled Downing v. San Diego Gas & Electric, (Super. Ct. San Diego County, No. 37-2007-00081604-CU-NO-CTL) (Downing Purported Class Action) also was filed on November 13, 2007.

At the same time, complaints were being filed by over 1, 000 individual plaintiffs who had determined to pursue individual claims, by insurance companies seeking to recover for payments to their insureds for fire losses, and by government entities seeking to recover for response costs, property damage, and other losses.

On October 10, 2008, the superior court issued a case management order requiring that seven master complaints be filed, separating claims by fire and by type of plaintiff. The superior court ordered that plaintiffs file one master complaint for individual claims related to the Witch Creek (Witch) and/or Guejito fires, one for individual claims related to the Rice Canyon (Rice) fire, a single master complaint for all class action claims, and four additional master complaints for insurance claims and government claims in the Witch/Guejito and Rice fires. Under the case management order, all claimants were to file complaints that adopted all or part of a relevant master complaint.

The Master Liability-Only Class Action Complaint (Master Class Action Complaint), based on individuals' claims related to the Witch and Guejito fires, was filed on October 3, 2008. It set forth a new class definition, seeking to certify a "Liability-Only Class":

"All persons and entities who, during the time period of October 21, 2007 through November 5, 2007: A. (i) owned, leased, or rented real property in the GEOGRAPHIC AREA; or (ii) had an ownership interest in a commercial enterprise located in the GEOGRAPHIC AREA; or (iii) resided in or worked in the GEOGRAPHIC AREA; and B. who claim property damage or loss of use of property resulting from... the Witch, Guejito, and Rice Fires. This class does not include personal injury claims."

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The "GEOGRAPHIC AREA" was defined as "the area of San Diego County, north of Interstate 8, as indicated in the map attached as Exhibit A" to the Master Class Action Complaint. The map attached to the Master Class Action Complaint depicted San Diego County and included a "fire perimeter" for the relevant fires. It had individual dots representing structures that were destroyed, moderately damaged, or minimally damaged. Labels on the map indicated that it was issued by the County of San Diego Department of Planning and Land Use and the San Diego Geographic Information Service, which make their perimeter data available on the Internet.

Based on this class definition, class plaintiffs moved for class certification of the liability-only class. SDG&E opposed class certification on the grounds that the class was not ascertainable, lacked commonality, did not have typical or adequate representatives, and was inferior to individual litigation. Oppositions on similar grounds were also filed by a third party defendant added to the class action by SDG&E, a group of approximately 1, 000 individual plaintiffs who had filed individual lawsuits, and a large group of insurer plaintiffs.

After hearing oral argument, the superior court denied certification. It found that the proposed liability-only class lacked predominance of common issues and was not superior to individual litigation. This court affirmed the superior court's order denying class certification.

Between the time of the fires (late Oct. 2007) and the superior court's denial of class certification (June 25, 2009) about 1, 400 individual plaintiffs filed lawsuits against SDG&E seeking to recover for fire-related losses. After denial of class certification, but before October 2010, more than 1, 750 additional individual plaintiffs filed lawsuits, bringing the total number of plaintiffs who filed within the three-year limitations period to over 3, 000. In the latter half of October 2010, almost an additional 400 individual plaintiffs filed claims.

There also were several plaintiffs who filed suit after October 2010, more than three years after the subject fires. One such suit is Laurie v. San Diego Gas & Electric Co. (Super. Ct. San Diego County, No. 37-2010-00103378-CU-NP-CTL) (Laurie Adoption), [2] which was filed on October 29, 2010. SDG&E demurred to that complaint, arguing that the statute of limitations had expired. In that case, the superior court found that the claims in the Laurie Adoption had been tolled:

"In this case, the class

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action put Defendants on notice of the potential claims. Although the potential pool of claimants was not as strictly limited as those in Becker [v. McMillin Construction Co. (1991) 226 Cal.App.3d 1493 [277 Cal.Rptr. 491]], involving a known number of houses in a development, the boundaries of the fire were known. There is no requirement the precise number of claimants be identified. But it is clear SDG&E was aware of the vast number of homes and businesses which had suffered damages as a result of the fire. The substantive nature of the claims, property damage due to the fires, was also known. That SDG&E did not know the amount of damages is irrelevant, as damages, even in class action, are calculable on an individual basis."

Even later than the Laurie Adoption, the Perkins filed suit on September 12, 2011 as a plaintiff in Frye v. San Diego Gas & Electric Co. (Super. Ct. San Diego County, No. 37-2011-00097746-CU-NP-CTL) (Frye Adoption). Like the complaint in the Laurie Adoption, the complaint in the Frye Adoption incorporated by reference certain allegations from the operative Master Class Action Complaint. The Perkins claimed damage to their residence that, based on its address, was located outside of the fire boundaries depicted on the map attached to the Master Class Action Complaint, but located above Interstate 8. After a couple rounds of demurrers, the Perkins filed a second amended complaint, which included causes of action for inverse condemnation, trespass, nuisance, and violation of Public Utilities Code section 2106 and again incorporated by reference certain allegations from the operative Master Class Action Complaint. This complaint added more specifics regarding damages and included the allegation that the Perkins' property was within the fire boundaries. SDG&E again demurred, arguing that the Perkins' allegation that the property was within the fire boundaries did not change the address of the property – which was alleged in the second ...

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