Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 37-2008-00093086- CU-PO-CTL Richard E. L. Strauss, Judge.
HUFFMAN, Acting P. J.
From late October through early November 2007, eight wildfires raged across large portions of San Diego County, California. Among them were the Witch Creek (Witch), Guejito, and Rice Canyon (Rice) fires, which gave rise to numerous related lawsuits brought by several sets of plaintiffs, including this proposed class, all seeking recovery of property damages or other compensation from numerous defendants, chiefly the utility providers, defendants and respondents San Diego Gas & Electric Company and its parent company, Sempra Energy (together SDG&E or Defendants). In the proposed class action before us, which was designated as part of this coordinated complex litigation, the trial court denied the motion by plaintiffs and appellants, Michael Downing, et al., the designated class representatives (Plaintiffs), that sought certification of a class action against Defendants on the sole issue of proving their liability for causing all property damage and related expenses (displacement, etc.) incurred by Plaintiffs in the Witch, Guejito or Rice fires (the three fires). (Code Civ. Proc., § 382.)
All further statutory references are to the Code of Civil Procedure unless otherwise noted. Under section 382, an ascertainable class and a well-defined community of interest in the questions of law and fact affecting the parties to be represented must be shown. (Linder v. Thrifty Oil (2000) 23 Cal.4th 429, 435.) Plaintiffs have separately designated proposed class representatives for each of the three fires, Witch (the Clarks), Guejito (Markowitz) and Rice (Downing).
During the past two years, the trial court has undertaken extensive and well designed coordination efforts to manage its calendar for all of the fire-related complex cases, including filing of pleadings, discovery, and motions. (§§ 128, 187; Cal. Rules of Court, rule 3.750.) At the time of the hearing on Plaintiffs' motion, the trial court also had before it a companion motion brought by an additional proposed class, consisting of those persons who were forced to evacuate their homes or businesses by the fire, and who each have claims for less than $7,500 loss of use or living expenses. (Cortez v. SDG&E (Super. Ct. San Diego County, 2008, No. 37-2008-00093086-CU-NP-CTL); the "evacuee class.") That ruling is also on appeal. (D055759.) In January 2010, we issued an order accepting the parties' stipulation to coordinate these appeals for briefing, oral argument, and disposition. We expedited the appeals and now issue separate opinions on them.
In this appeal by Plaintiffs of the ruling denying certification of their liability-only class, they argue the trial court failed to recognize that they successfully carried their burden of producing substantial evidence to show that common issues are predominant on all crucial issues on Defendants' liability for causing all of their damages. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104-1108(Lockheed Martin).) Plaintiffs see no meaningful distinction between proof of the causation of the three fires, at their points of origin, and/or proof of the effects of the 16-day spread of the fires upon individual class members and their properties, for purposes of imposing liability upon Defendants.
Put another way, Plaintiffs seem to believe that if the class succeeds in proving that Defendants are liable to them for negligent ignition of the wildfires at the three points of origin, then Defendants are likewise proven liable for inflicting all of the class's fire-related damages within the three proven paths of destruction. The proposed class would include some 300, 000 persons or businesses claiming liability against Defendants for fire-related loss or interference with property rights, and would eventually include some kind of claims procedure for proving specific amounts of damages.
Plaintiffs likewise contend the trial court abused its discretion in concluding that a class action would be an inferior method in which to proceed on their efforts to prove Defendants' substantial factor liability for the property and other damages sustained by the class. Plaintiffs rely on well-established criteria for comparing procedural methods for achieving a fair and efficient adjudication of the litigation. (Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 332 (Sav-on Drug); see Basurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 121(Basurco); Fed. Rules Civ.Proc., rule 23(b), (c), 28 U.S.C. (Rule 23).)
Defendants, joined by respondent Cox Communications, Inc., et al. (a named cross-defendant in the SDG&E/Sempra cross-complaint for indemnification; sometimes collectively, Respondents), argue on appeal that the trial court acted well within its discretion when it denied certification of the proposed wildfire "liability-only" class. Their arguments are echoed by many individual and business plaintiffs who are separately represented by legal counsel, who are pursuing against Defendants their own separate complex coordinated actions, and who do not wish to join such a class (designated here as the "Many Plaintiffs, " who are suing Defendants in 72 or more consolidated actions, and who comprise 914 parties out of the total of a few thousand wildfire plaintiffs).
Plaintiffs are alleging a single entity liability theory against defendants SDG&E and Sempra. For purposes of this opinion, we refer to these defendants collectively. These class plaintiffs did not name Cox in their master complaint, instead suing only the SDG&E defendants. Cox is participating in the appeal as a cross-defendant and respondent, separately filing its own briefs and collaborating in the preparation of the Respondent's appendix.
All Respondents take the position that the trial court correctly interpreted the usual components of causation theory, when it concluded that: "A finding of causation of the fires is not equivalent to causing each class members' damages." The court found individual issues will predominate on establishing any liability of Defendants for causation in fact of the different kinds of property and other damages (displacement) sustained by the various putative class members. (See Ali v. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1346 (Ali).) The key issue of causation of class-wide harm, as part of the liability determination and as affected by Defendants' numerous affirmative defenses, could not feasibly be handled collectively, and therefore, the court determined a class action would not be superior to individual actions.
We agree. The trial court had the discretion to deny certification, when it found the fact and extent of each proposed class member's injury would require individualized inquiries that defeated any predominance finding. (Evans v. Lasco Bathware, Inc. (2009) 178 Cal.App.4th 1417, 1430-1431 (Evans).) Class certification hearings anticipate, but do not require, resolution of the case on the merits. (Lockheed Martin, supra, 29 Cal.4th at p. 1104.) Plaintiffs failed to sustain their burden to show class certification would be appropriate or manageable to adjudicate the proposed liability-only class claims. Although it cannot be disputed that some common issues of fact and law exist as to the duty and breach elements of Plaintiffs' theories (origin and spread of these three fires, with respect to the design and operation of Defendants' utility lines, under the prevailing vegetation and weather conditions at the time of the kindling of the fires), those common issues do not clearly address or resolve other, remaining, essential elements of the class's negligence cause of action, or of its related claims for trespass, nuisance and inverse condemnation.
Specifically, well-accepted causation principles require each claimant to demonstrate the certainty or fact of damage to themselves and to property, that was substantially caused by Defendants and not by any intervening forces. However, any common issues of law and fact on liability do not predominate in these proposed class proceedings. (Lockheed Martin, supra, 29 Cal.4th 1096, 1106-1111.) The proposed liability-only class would not promote judicial economy, since numerous and substantial legal and factual questions remain to be resolved, on an individualized basis, about the substantial factor causation of injury in fact as to the potential class members and their properties, attributable to the ignition of the three fires, but also attributable to many concurrently operating factors causing the fires to spread to different properties, causing different harm. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460 (San Jose).) The surrounding circumstances of the fires, including weather, terrain, and improvements nearby, require Plaintiffs to supply predominantly individualized rather than common proof about the effects of the fires upon their unique real properties involved, as well as their owners' activities there (e.g., in sustaining property damage, loss of use, displacement expenses, or lost wages and business profits, as effects of the fires).
Moreover, the trial court set forth an alternative, adequate basis for denial of the motion, i.e., lack of superiority of class treatment for the liability-only proposal. Plaintiffs, as potential class representatives, have been unable to show any sufficient reason for this court to disturb that demonstrated, conscientious exercise of discretion, nor how class treatment might be a superior means of adjudicating the present liability claims. (Basurco, supra, 108 Cal.App.4th 110, 121; Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 654-655.) The order denying class certification represents a correct analysis of the relevant legal principles and an appropriate exercise of discretion, and must be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A. October-November 2007 Firestorm
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 these three), 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 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 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.
Plaintiffs alternatively contend that over 500, 000 persons were evacuated as a result of the fires, but that large figure appears in a report dealing with the eight total San Diego County wildfires, of which these three fires were only a part. The more reliable figure of evacuees from these three fires is about 300, 000.
B. Fire-Related Actions are Filed; October 2008 Case Management Orders
After these three devastating wildfires were stopped, numerous plaintiffs filed individualized and group fire-related actions in the trial court against Defendants and others (including Cox and a contractor, Davey Tree Services), seeking recovery for property damage and/or personal injury. Other actions against Defendants were filed by property insurers and governmental entities, as well as this and a related (evacuee) class action. All actions were designated as complex litigation and in October of 2008, the trial court issued several case management orders (CMO). (Cal. Rules of Court, rule 3.750(c).)
In those orders, the court exercised its inherent powers and those granted by sections 128 and 187, to organize and coordinate the related wildfire complex cases. The court identified four groups or units of plaintiffs, (1) governments, (2) insurers, (3) individual actions (at least 1, 088 persons and businesses), and (4) class actions. Liaison counsel were appointed for the most closely related fire complex, the Witch/Guejito fires, and also separately, for the Rice fire. The court organized pretrial discovery on the liability issues, with one discovery track per fire allowed, and set up a procedure for filing and service of pleadings, including the master complaints, answers, and other responsive pleadings.
In an additional order, the court provided that master complaints should be filed in each of the above categories, and existing cases would be consolidated with the relevant master complaints. Parties were permitted to adopt all or part of the master complaints and add to them. Two different sets of class representatives (this class and the evacuee class) filed their own pleadings and then adopted the master class complaints.
C. Master Class Complaint; Numerous Answers and Cross-Actions are Filed
The operative pleading for the liability-only class was filed in October 2008, including the standardized six causes of action from the master complaint. These included inverse condemnation, trespass, nuisance, and negligence-based theories, including negligence per se and statutory violations of duties imposed by the Public Utilities Code. (Pub. Util. Code, § 2106 [liability may be imposed for failure to properly perform regulated functions].) The proposed class was identified as those seeking to prove the liability of Defendants for property damage or loss of use of property located in the specific geographic areas affected by the three fires. The proposed class members claiming property loss were owners, lessees, or renters, as well as those having an interest in a commercial enterprise, and the class members claiming loss of use of property were those who had resided or worked in the specified areas.
The general allegations in the liability-only master class complaint state that government investigations and reports preliminarily indicate that Defendants' operation of its power lines for transmission and distribution of electricity substantially caused the Witch fire to ignite near Santa Ysabel, during a time of extreme drought, when two 69 KV lines came into contact and threw off sparks for an extended period, igniting everything nearby.
The main governmental report that investigated the causes and analyzed the adequacy of the responses to the 2007 wildfires is the San Diego County Firestorms After Action Report, prepared by a consultant, EG&G Technical Services, Inc. It is a 147-page compendium of 69 pages of text, tables of press releases, 12 pages of maps of the evacuation zones and fire perimeters, and other appendices, including organizational charts for emergency operation and recommendations for future improvements in fire responses (the After Action Report).
The Guejito fire was described in those reports as starting in the San Pasqual Valley, when an energized electrical distribution line came into contact with the lashing wire that was affixed to a communication line belonging to Cox, causing ignition in the area. The Guejito fire eventually merged with the Witch fire, all of which merged with another fire, which is not the subject of this action (the Poomacha fire).
The reports also indicated that the Rice fire started near Rainbow, when Defendants' power lines came into contact with excessive vegetation, causing sparking and ignition in the area.
The class plaintiffs additionally allege Defendants, in operating their business as a single entity, were aware of the environmental conditions giving rise to foreseeable fire danger during the late summer and fall months, such as drought, high temperature, low humidity, dry vegetation, and annual Santa Ana winds. Defendants allegedly were negligent in their operations under those conditions, and the fire complexes created conditions of trespass, nuisance, and inverse condemnation. An exhibit attached to the complaint shows a San Diego County Office of Emergency Services (OES) general assessment of damages as of February 29, 2008, apparently for all eight of the fires.
The liability-only master class complaint seeks general damages for repair and/or replacement of damaged or destroyed personal or real property, loss of use damages, lost wages and business profits, and related relief, such as displacement expenses. These class plaintiffs specify that they do not seek class treatment for determination of their damages, only liability.
Plaintiffs seek general damages that would include damages for fear, worry, and anxiety, as part of class recovery of property damage and displacement expenses (loss of use of property). They nevertheless contend that they do not seek emotional distress damages. We need not resolve this inconsistency. We also note that the other proposed class definition (for the evacuee class) excludes any party claiming property damage, such as the subject liability-only proposed class members.
In their answers to the class complaint, Defendants asserted numerous affirmative defenses, including intervening and superseding causes, "Act of God and/or Vis Major, " "unavoidable accident, " lack of statutory authority to assert nuisance (based on Defendants' statutory authority to provide electrical services, pursuant to Civ. Code, § 3482), comparative negligence of plaintiffs or third parties or failure to mitigate damages, and preemption under Public Utilities Code section 1759 (Cal. P.U.C. jurisdiction).
Defendants denied any allegations of negligence per se, based on violations of applicable regulations of their supply of electricity, including Public Utilities Code section 2106 and Public Utilities Commission general orders (governing performance of regulated functions), or Public Resources Code section 4292 (providing firebreaks around power lines), or Health and Safety Code section 13001 et seq. (penalizing one that allows escape of fire). Defendants' "vis major" defense, in the Oxford English Dictionary On line (2d ed. 1989), is defined as something with "such a degree of superior force that no effective resistance can be made to it." This can also be called an "Act of God" defense, as explained in 6 Witkin, Summary of California Law (10th ed. 2005) Torts, section 1199, page 577: "An 'act of God, ' i.e., an extraordinary natural force, that brings about harm different from that threatened by the defendant's negligence is a superseding cause; but if it merely increases or accelerates the results of the defendant's negligence, it is not."
Defendants filed a cross-complaint against Cox, alleging causes of action for equitable indemnity and contribution, contractual indemnity, breach of contract, and declaratory relief. Defendants also cross-complained against the state Department of Forestry and Fire Protection (Cal Fire) for equitable indemnity and contribution. Cox answered the cross-complaint, as did other cross-defendants.
Other coordinated pleadings were brought by property insurers (subrogation actions). Numerous governmental entities filed their own actions against Defendants seeking recovery for property damage and destruction of natural resources, and for expenses of firefighting and other services rendered.
D. Motion: Proposed Liability-Only Class
Plaintiffs filed their motion for class certification in October 2008. They contended that the issues of Defendants' liability to the defined class, for property damage and loss of use, were properly susceptible of class treatment, which would be a superior way of proceeding with the action. Three potential class representatives provided declarations about their fire losses and their willingness to act as class representatives. For the Witch/Guejito fire complex, Kenyon Clark stated that he lost his valuable Rancho Santa Fe home and all his personal possessions in the fire, and for the past year, his family had been forced to live with friends, then in a hotel and two rental homes. Their insurance coverage paid some, but not all, of the total amount of the large value of the home and belongings, and he lost wages and a month of business income.
California Rules of Court, rule 3.765(b) provides: "When appropriate, an action may be maintained as a class action limited to particular issues. A class may be divided into subclasses."
Proposed class representative Steven Markowitz stated that he owned commercial property, which had been substantially damaged by the Witch/Guejito fire complex, i.e., a bed and breakfast retreat and spa that he characterized as a world renowned and historic health center. The business property was destroyed or damaged, as were several rental units, a mobile home, a truck, storage units, the irrigation system and part of the organic farm and orchards. His insurance covered some, but not all, of the huge losses from the fire, and the business had to be closed for a year, causing loss of revenue and trained staff.
For the Rice fire, proposed class representative Michael Downing provided a declaration that he lost his manufactured home to the fire, as well as landscaping, a classic vehicle and parts, most of his personal belongings, and he had to stay with his son for 10 months during the relocation process. Some of his losses were not covered by insurance (around $26,000), and he lost wages.
Plaintiffs also provided a compendium of declarations of seven class counsel, to demonstrate their competency to represent the class. Plaintiffs sought judicial notice of portions of the After Action and other governmental reports, worksheets and maps showing the places of origins of the fires and damage assessments, which had been issued by Cal Fire and OES.
In their points and authorities, Plaintiffs contended that approximately 300, 000 members would qualify for the class, and the class could be readily ascertained through government records of the evacuation areas. (See fn. 3, ante.) Plaintiffs contended that the overarching common question was whether Defendants' conduct was a substantial factor in igniting the fires that damaged the class members on or after October 21, 2007.
In opposing certification, Defendants argued that individualized inquiries were necessary regarding all liability determinations, and any common issues of law and fact were not predominant in the case. Defendants specifically argued that discovery showed that the harms identified by both residents and evacuees are innumerable in their types and causes, and that many proposed class members were not sure which fire had caused the damage that they had suffered. Excerpts from proposed class members' discovery responses and depositions were provided to show wide variations in their damages and in their understandings of how and which fires harmed them.
Defendants contended there was no case law precedent for certifying a class of individuals whose claims arose primarily from wildfires, or destruction of residences, or inverse condemnation, or trespass. They reasoned that "cases involving wildfires and property damage are particularly ill-suited for class treatment because of the broad range of individual issues that necessarily permeate in such actions." (Rule 23(b)(3).)
Defendants rely on the Advisory Committee Notes for Rule 23 (1966 amendment), in which the commentators state: "A 'mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried."
Defendants also argued that the proposed class actually sought to establish on a class-wide basis only where the ignition point of each of the three fires was, but this would not resolve the entire case on any liability to the class Plaintiffs. Defendants stated that even a showing of negligent fire starting would not suffice to show class liability, because "to establish liability, each individual putative class member will need to show how the fires affected him or her in particular, prove that the fires negligently started by one of the defendants caused him or her damage, and negate individual defenses such as contributory negligence, failure to mitigate, and intervening cause."
Defendants further argued that Plaintiffs were unable to demonstrate the superiority of a class certification in this context, where the trial court was already taking numerous effective steps to manage the numerous individual claims filed to date.
Cross-defendant Cox separately argued that the proposed class certification was inappropriate, because there was no precedent for certifying a class action for such a large fire disaster, and any determination of liability should be predicated upon the impact of the alleged tort upon a particular piece of land, which would be specific in nature. Cox argued that adding a "liability-only" class to the existing set of coordinated complex actions "would create a needless and monumental management nightmare." Cox lodged numerous documents in support of its arguments, including copies of state and county governmental investigative reports on the wildfires, deposition excerpts from proposed class plaintiffs on their efforts to mitigate their damages and substantiate their losses, and copies of county and municipal ordinances regarding fire safety in the affected areas.
Opposition was also filed by the Many Plaintiffs, a majority of the approximately 1, 088 individuals and businesses who have filed their own wildfire-related actions in the complex litigation (approximately 72 other actions, some of which were filed and consolidated into smaller groups of cases). They are separately represented by different counsel and strenuously contend that they wish to remain in control of their own cases. Sixteen of the 914 represented individual plaintiffs filed declarations about their losses and why they believed the class should not be certified on their behalf, since they were satisfied with their current representation. On appeal, this group has been granted amici curiae status.
E. Class Certification Ruling
Oral argument on the certification motions was held in June 2009, about nine months after the initial CMO orders were made. Counsel for the proposed class admitted there was no possible single damages calculation for each class member, but he argued a liability-only class could be certified, based on the common issues pled in the complaint (type of evidence to be presented about the points of origin of the three fires, due to the alleged breach of duties to properly design, maintain and operate the power lines, etc.). Counsel for the proposed class suggested that the court set for trial these three class representatives' individual cases, and possibly achieve a determination on SDG&E's liability in a matter of weeks. Counsel believed that would streamline the case and bring quicker justice to the fire victims than any other mechanism that was available.
Defendants, joined by Cox and the Many Plaintiffs, vigorously disagreed. At the hearing, counsel for the group of insurers that had filed subrogation actions also opposed the motion. Insurance counsel explained that approximately 20, 000 insurance claims had been filed and many paid in the matters. Due to the different kinds of coverage afforded to homeowners in the wildfire areas, some insurance payments to homeowners for coverage of their damaged residences had been collected by banks and other trust deed holders. However, that was not true of other kinds of coverage proceeds, such as personal property and loss of use, which were not payable to financial institutions.
At the hearing in June 2009, the insurers were in the process of settling their subrogation actions against Defendants. On appeal, the parties have made us aware that the insurers obtained over $1.6 billion in recovery from Defendants.
In response to questions from counsel about the tentative order's contents (on the issue of a trial plan for liability), the trial court invited all participating counsel, both plaintiff and defense, to offer input on how to avoid the necessity for each individual plaintiff to have an individual trial on Defendants' liability for causing the fires. The court stated: "We are going to find a way so we won't have thousands of lawsuits. Rather than mandate that way, I've dealt with all of you in a way [that] I want your suggestions in how that's going to happen. No one wants to try this over and over and over again.... [¶]... [¶] I can say this: we are not going to try origin and causation and point of origin and causation a thousand different times. It's not going to happen. I don't think any of you want it to happen."
After hearing argument from all sides, the court confirmed its tentative order denying the requested class certification. After analyzing the evidence, the court concluded the class proponents had failed to show sufficient commonality of law or fact, because: "This case is similar to City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460 (San Jose) which arose from nuisance claims asserted against the airport and in which the plaintiffs were seeking diminution in value of real property. The Supreme Court held class certification was improper when each class member's right to recover depended on the facts peculiar to his or her case. [Citation.] In this case, even if there was a determination [Defendants] caused the Fires, there would have to be individual trials as to each class member. The causes of action asserted against [Defendants], particularly trespass, nuisance and inverse condemnation, require individual showings. A finding of causation of the fires is not equivalent to causing each class member's damages. Even Plaintiffs concede the effects of the fires will have to be tried individually. Thus, there is insufficient commonality among class members."
Plaintiffs' reply papers included the following "admission": "Defendants expend much effort on lengthy discussions to convince the Court that issues concerning the effects of the fires on individual class members will have to be tried individually. However, plaintiffs have never argued otherwise. Here, all of the damage took place in a period of a few days resulting from three fires having discrete points of origin and identifiable causes.... None of the problems of ascertainability or proof of causation present in San Jose, supra exists here." (Second set of italics added.)
Next, the court distinguished Plaintiffs' reliance on Sav-On Drug, supra, 34 Cal.4th 319, to support their arguments that a liability-only class was manageable. The court explained that even if "a class action is appropriate where some individual showing may be required to show damages, " there remains a distinction "between some showing in order to recover damages and litigating numerous and substantial questions. The present case is more akin to San Jose than it is to Sav-on."
As an additional reason for the denial of the motion, the court rejected any contention that class treatment would be superior to processing individual actions, because under the relevant tests, Plaintiffs had failed to show the relative merit of proceeding as a class: "Each individual class member has a strong interest in controlling his or her own case. Over seventy individual actions have been filed consisting of over 1, 000 individual plaintiffs. There is no dearth of cases being pursued by individual parties which negates the argument there are some substantial number of unknown putative class members whose damages are going uncompensated, particularly when considering how many insurance claims, over 20, 000, were made. This shows numerous [damaged] plaintiffs have taken a significant and active role in seeking compensation." (See Basurco, supra, 108 Cal.App.4th 110, 121.)
The ruling on the superiority issue also addressed the merits of the class definition on liability: "Based upon the type of certification sought, limited to the liability of SDG&E for causing the fire, a class action is not manageable. The court would have to entertain additional trials on the issues of damages, further complicating an already complex procedure. Plaintiffs have provided no guidelines as to how this could be accomplished more efficiently or simply than individual cases. And because of the variation of types and degree of damages incurred by each plaintiff, it is difficult to assume any single damage calculation would apply uniformly. There is no question each individual plaintiff will not have a trial on SDG&E liability for causing the fire. The moving parties have offered no suggestions as to how to manage and require participation from thousands of inactive class members. Thus, Plaintiffs have failed to show there a class action is superior to the current case management." (Italics added.)
Plaintiffs appealed.
F. Postruling Concerns
To the extent these liability-only class representatives are also seeking to represent evacuees who have loss of use damages (such as those in the related evacuee class certification ruling on appeal, regarding claims of less than $7,500), these two class definitions appear to overlap. (Cortez v. SDG&E (D055759).) However, that other proposed class clearly excludes those seeking property damage recovery, and limits their class definition to those seeking less than $7,500 in loss of use or living expenses damages. Accordingly, these liability-only property damage class issues are distinct from the evacuee class issues.
Pending appeal, we granted an application to file an amicus curiae brief on behalf of the Many Plaintiffs. They are separately represented by different counsel, and they filed opposition in the trial court (renewed on appeal) to any proposed certification of a liability-only class. (The remaining 15 percent of the individuals and businesses who have pending coordinated cases before the court did not take a position on the motion.)
In particular, the Many Plaintiffs hotly dispute any characterization by Defendants in their briefs that these wildfires were in any way "natural" disasters that would give rise to any "Act of God" defense, as opposed to negligently-caused fires that inflicted injury. (See fn. 6, ante.) Any party was allowed to answer the amici curiae briefing, and Plaintiffs did so, mainly reiterating their earlier arguments.
DISCUSSION
Class certification requires proof of a well-defined community of interest and a showing of how certification will provide substantial benefits to litigants and the courts, such that proceeding as a class would be superior to other methods. (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089.) Here, the trial court's order denying certification of the proposed class was based upon specific findings of a lack of predominant common questions of law or fact, as part of the required community of interest, and upon the failure to demonstrate that the proposed class action was superior to other procedural frameworks. The court did not rely on any related issues about ascertainability of the class, nor on any considerations of whether the class representatives' claims were typical of the proposed class or if adequate class representation were shown. (Sav-on Drug, supra, 34 Cal.4th 319, 334-335.)
We accordingly examine only the given grounds for the order denying class certification, after stating the basic principles governing class certification requests and our standards of review. (Corbett v. Superior Court (2002) 101 Cal.App.4th 649, 658.)
I
REVIEW AND RECORD
On review, "in determining whether there is substantial evidence to support a trial court's certification order, we consider whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment. [Citation.] 'Reviewing courts consistently look to the allegations of the complaint and the declarations of attorneys representing the plaintiff class to resolve this question.' [Citations.]" (Sav-on Drug, supra, 34 Cal.4th at p. 327.) "Class actions are provided only as a means to enforce substantive law, " and these procedural issues are subject to that rule. (San Jose, supra, 12 Cal.3d at p. 462.)
A trial court ruling that is supported by substantial evidence normally will not be overturned " ' "unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]" [citation].... "Any valid pertinent reason stated will be sufficient to uphold the order." ' [Citations.]" (Sav-on Drug, supra, 34 Cal.4th 319, 326-327.) The stated reasons must be supported by the evidence or by any properly implied findings. (Evans, supra, 178 Cal.App.4th 1417, 1421-1422; Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1287-1288.)
At this point, we pause to address the argument made by Defendants that Plaintiffs' appellants' appendix is so deficient that their arguments based on it must be deemed waived (i.e., claimed lack of substantial evidence to support the ruling; see, e.g. Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245-1247). Although Plaintiffs have provided their moving papers and their own judicially noticeable materials, as well as copies of the opposing points and authorities, and the ruling and hearing transcript, Plaintiffs failed to supply the extensive lodged documents provided by Defendants and other opponents in support of their positions. Respondents' appendix now includes those materials, and also duplicates some of what Plaintiffs provided.
Admittedly, the Appellants' appendix is somewhat cursory and does not adequately present all of the support for the oppositions to the motion. Respondents have added extensive lodged documents, including deposition excerpts from potential class representatives about the evacuations they were forced to make, the property and other losses they sustained, their efforts to mitigate damages, and about their lack of knowledge of which fire caused which damage. That information, while relevant, does not materially change the gist of the record provided. Plaintiffs have supplied us with the bare bones in support of their legal arguments, and although we agree with Respondents that this record is somewhat problematic, in the interest of judicial economy, we will deem it sufficient for analysis of the merits of the issues.
We also take note that both Plaintiffs and Respondents represent in their briefs on appeal that since the time the ruling was issued in June 2009, hundreds of additional individual plaintiffs or businesses have joined the coordinated litigation at the trial court level (i.e., more of the Many Plaintiffs). "Generally applicable rules of appellate procedure" do not allow consideration of postjudgment evidence of changed circumstances, in support of the arguments on appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 413; Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1237.) This court will evaluate the order appropriately, as of the time it was made, in light of the respective showings provided to the trial court on the legal and discretionary issues. (But see fn. 9, ante, regarding settlements reached.)
II
LIABILITY-ONLY CLASS REQUEST: NO PREDOMINANT ISSUES OF CLASS-WIDE INJURY
A. Basic Considerations for Analysis
Trial courts are accorded great discretion in analyzing the criteria for granting or denying class certification. (Lockheed Martin, supra, 29 Cal.4th 1096, 1106.) In determining class certification questions, the courts do not decide the merits of the case. Plaintiffs have the burden to establish the requisite community of interest, and a proponent of certification must show that questions of law or fact common to the class "predominate" over the questions that affect individuals who may become class members. (Id. at p. 1104.)
"The predominance criteria means 'each member must not be required to individually litigate numerous and substantial questions to determine his [or her] right to recover following the class judgment; and the issues which may be jointly tried, when compared with those requiring separate adjudication, must be sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants.' " (Evans, supra, 178 Cal.App.4th 1417, 1421-1422, quoting San Jose, supra, 12 Cal.3d 447, 460.)
The trial court is entitled to consider " 'the totality of the evidence in making [the] determination' of whether a 'plaintiff has presented substantial evidence of the class action requisites' [citation], including whether the causes of action asserted on behalf of the proposed class would involve the resolution of common issues of fact and law that predominate over the other factual and legal issues that will be determinative of the individual class members' rights to recover on those causes of action." (Evans, supra, 178 Cal.App.4th 1417, 1422.)
In making its inquiry, the trial court takes into account the pleadings and declarations of attorneys representing the plaintiff class, as well as the opposing showings. This requires a comparison of the costs and benefits of adjudicating class claims, as opposed to the costs and benefits of proceeding through numerous separate actions. (Sav on Drug, supra, 34 Cal.4th at p. 339, fn. 10.) "Individual issues do not render class certification inappropriate so long as such issues may effectively be managed. [Citations.] [¶] Nor is it a bar to certification that individual class members may ultimately need to itemize their damages. We have recognized that the need for individualized proof of damages is not per se an obstacle to class treatment [citations]." (Id. at pp. 334-335.)
B. Issues Presented and Authorities to Apply
In the case before us, the potential class members' right to recover damages for injury to their property or for their displacement expenses depends upon their ability to show all elements of their negligence, nuisance, trespass, and/or inverse condemnation causes of action. On each of those theories, they will be required to show not only that there was fire-related damage to their properties, and such damage displaced them and affected their living expenses, but also that substantial factor causation of their property damage and harm is directly or proximately attributable to these Defendants.
On all their theories, the class proposes to show Defendants' liability by proving the three fires had discrete points of origin and identifiable causes, and then by proving the progression of the fires. Plaintiffs believe it is immaterial that the issues concerning the effects of the fires on individual class members will have to be tried individually (as they admit), because the identities of the properties affected by each fire can be easily ascertained through government reports, which to them should adequately establish all necessary causation of injury and loss. They anticipate that after such a liability-based class decision, then a later damages-only claims process can be conducted.
The same basic issues are raised about liability under each of the class plaintiffs' negligence-based causes of action, including negligence per se/breach of statutory obligations (Pub. Util. Code, § 2106; Pub. Res. Code, § 4292 [firebreaks].) We need not address these theories separately, nor inverse condemnation, nuisance and trespass, as all those causation issues present the same types of problems here. We note also that where, as here, there is ample California authority on class action issues, additional guidance from federal cases is usually not necessary. (See Kennedy v. Baxter Health Care Corp. (1996) 43 Cal.App.4th 799, 809, fn. 5.)
To examine their theory, we first reiterate that "[t]he hearing on class certification is not a final resolution of the merits of a claim." (Bennett v. Regents of University of California (2005) 133 Cal.App.4th 347, 357.) Unavoidably, " 'when the merits of the claim are enmeshed with class action requirements, the trial court must consider evidence bearing on the factual elements necessary to determine whether to certify the class.' " (Ibid.; italics added.) "[W]hether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment, " is the other part of the inquiry, both for the trial court and on appellate review. (Sav-on Drug, supra, 34 Cal.4th at p. 327; italics added.)
Before addressing those legal and factual common issues, we first narrow the scope of our inquiry. Class certification issues arise in multiple factual contexts, and the parties have argued many different kinds of cases as supporting authority, including those arising from nuisance, product defects, securities or banking financial injuries, employment wage and hour disputes, antitrust, and more. Some of these cases are more apposite to this factual context than others. The relevant inquiry should always be whether uniform class-wide injury can be demonstrated for liability purposes, such that only a separate damages inquiry needs to be individualized. (Hicks v. Kaufman& Broad Home Corp. (2001) 89 Cal.App.4th 908, 916, 923-924 (Hicks).)
Generally, public utilities delivering energy are not subject to suit on strict products liability theories. (Thibos v. Pacific Gas & Elec. Co. (1986) 187 Cal.App.3d 337, 340; 6 Witkin, Summary of Cal. Law, supra, Torts, § 1446, pp. 869-871.)
Class treatment is proper only if the class judgment (certification) to be rendered can establish the basic issue of liability to the class. (San Jose, supra, 12 Cal.3d at pp. 460-463.) There, the court acknowledged that the community of interest requirement could readily be established where "the issue of the defendant's liability to the class as a whole could be determined by facts common to all." (Id. at p. 460.) Specifically, in Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713-717, and Vasquez v. Superior Court (1971) 4 Cal.3d 800, 810, "[l]iability to the class could be established by evidence defendant engaged in an illegal scheme to cheat or overcharge patrons, coupled with a showing from defendant's own books that defendant was successful in his scheme." (San Jose, supra, 12 Cal.3d at p. 460 .) Daar and Vasquez were cases involving uniform economic injury to class pocketbooks, that could be calculated and remedied on a class-wide basis. (Also see Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 913.)
Likewise, antitrust cases may be subject to class certification if the fact of injury can be established with reasonable certainty, even though less rigid standards of proof can be used to set the sometimes nebulous amounts of damage caused by antitrust violations. (Evans, supra, 178 Cal.App.4th at p. 1431; see In re Cipro Cases I & II (2004) 121 Cal.App.4th 402, 414-416.) In the employment practices context in Sav-on Drug, supra, 34 Cal.4th 319, class treatment was deemed appropriate, where the subject issues were whether the defendant employer had an across-the-board policy of misclassifying managerial employees as exempt (or if such a de facto policy existed), and where the hundreds of potential class members had all been subjected to the same treatment by the employer. (See also Reyes v. Board of Supervisors (1987) 196 Cal.App.3d 1263, 1270, fn. 6 [" 'It is well settled that class actions are an appropriate procedure in government benefit cases where statutes and policies are likely to have an impact upon a broad class of recipients' "]; Dodge v. County of Orange (S.D.N.Y. 2005) 226 F.R.D. 177 [class action allowed against prison's strip search policy].)
Here, however, where property damage recovery is sought under theories of negligence, nuisance, inverse condemnation, and the like, the facts that are "peculiar to each prospective plaintiff" assume much greater importance. (San Jose, supra, 12 Cal.3d at pp. 460-461.) We turn now to such property damages authorities, in looking to the extent of common issues of law and fact that may exist for demonstrating liability of Defendants.
C. Role of Causation in Plaintiffs' Theories of Recovery for Property Damage
Plaintiffs rely on preliminary governmental investigations that have determined these three fires were initially caused by SDG&E's utility line malfunctions. Plaintiffs told the trial court that "[Defendants] exhibited the same conduct as to all individuals and/or property owners located in San Diego County at the time of the wildfires."
For purposes of class certification, we may assume arguendo that there are some common elements in the negligence-based causes of action pursued by all the property owners (i.e., whether Defendants owed plaintiffs a legal duty, and whether Defendants breached the duty). (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674; disapproved on another point by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5.) It is more problematic whether such a breach was a substantial factor, and how substantial, in causing the particularized injuries suffered by plaintiffs. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1053.) Substantial factor causation subsumes the "but-for" theory of causation, and properly takes into account a range of contributions to an injurious situation. (Ibid.) In Mitchell, the court identified several problems that are solved by substantial factor analysis, in assigning different levels of fault to different types of contributions to injury: "One is where a similar, but not identical result would have followed without the defendant's act; the other where one defendant has made a clearly proved but quite insignificant contribution to the result, as where he throws a lighted match into a forest fire." (Id. at pp. 1052-1053.)
CACI No. 430 reads as follows: "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct]." (6 Witkin, Summary of Cal. Law, supra, (2010 supp.) § 1187, p. 65.) CACI No. 431 provides: "A person's negligence may combine with another factor to cause harm. If you find that [name of defendant]'s negligence was a substantial factor in causing [name of plaintiff]'s harm, then [name of defendant] is responsible for the harm. [Name of defendant] cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing [name of plaintiff]'s harm." (6 Witkin, Summary of Cal. Law, supra, § 1187, pp. 554-557.)
"Causation in the law of negligence is not determined by a linear projection from a 'but for' premise. Instead, it is expressed in terms of 'foreseeability' and is limited by the policy that cause must be 'proximate.' The problem is complex, and has bedeviled many." (Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1030.) Several issues arise on foreseeability. "In some contexts it is a question of fact for the jury, and in others a 'part of the calculus to which a court looks in defining the boundaries of "duty." '... [T]he jury considers foreseeability in two more focused, fact-specific settings: likelihood or foreseeability of injury in deciding whether defendant's conduct was negligent in the first place, and whether the negligence was a proximate or legal cause of plaintiff's injury." (Ibid.; italics added.)
No particular degree of contribution to harm is required for liability establishment: " 'The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.' [Citation.] Thus, 'a force which plays only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss is not a substantial factor' [citation], but a very minor force that does cause harm is a substantial factor [citation]. This rule honors the principle of comparative fault.' " (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 79.)
Such authorities focus on the problem of how much a particular negligent act has contributed to an injury, for purposes of imposing liability and allocating it. In the Restatement Third of Torts, Apportionment of Liability, section 8, comment c, pages 87 through 88, discussing the allocation of liability, the relevant factors for assigning percentages of responsibility include, mainly, "[t]he nature of each person's risk-creating conduct, and the comparative strength of the causal connection between each person's risk-creating conduct and the harm." (Ibid.) To evaluate the nature of alleged risk-creating conduct, the courts will consider "how unreasonable the conduct was under the circumstances, the extent to which the conduct failed to meet the applicable legal standard, the circumstances surrounding the conduct, each person's abilities and disabilities, and each person's awareness, intent, or indifference with respect to the risks." (Ibid.)
Likewise, to evaluate the comparative strength of the causal connection between the conduct and the harm suffered, the courts consider "how attenuated the causal connection is, the timing of each person's conduct in causing the harm, and a comparison of the risks created by the conduct and the actual harm suffered by the plaintiff." (Rest.3d Torts, supra, § 8, com. c, p. 87.) To assign liability proportionally, the courts consider the entire chain of causation and whether it may have been broken after a defendant's negligent act, such as through an independent intervening force or a superseding cause. (6 Witkin, Summary of Cal. Law, supra, § 1197, p. 574.) Even under such circumstances, a defendant may remain liable for substantial factor causation in bringing about harm, if the risk of harm was foreseeable. (Id., § 1198, at p. 576, citing Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 211.)
The courts will also consider whether the extent or degree of injury inflicted is substantially attributable to a particular negligent act. In Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 582-583 (Soule), the Supreme Court analyzed claims of instructional error in the context of a products liability case, in which causation of the plaintiff driver's enhanced injuries was disputed. The defendant manufacturer contended that no liability should be imposed, because it believed that the extreme force of that automobile collision meant that "plaintiff's injuries would have occurred regardless of any defect [her crushed ankles when car crumpled]." (Id. at p. 582, italics added.) Although only generalized substantial factor causation jury instructions were given in that case, the Supreme Court upheld a plaintiff's verdict, on the grounds that there had been sufficient instructional support given for the manufacturer's offered causation defense (even though the defense failed). Accordingly, any trial court error in refusing more specific instructions was harmless: "The trial court instructed that plaintiff could not recover for a design defect unless the defect was a 'substantial' factor in producing her 'enhanced' injuries. In general terms, the instructions thus encompassed [the manufacturer's] causation theory, and they did not foreclose a defense verdict on that theory." (Id. at p. 581.) Soule provides an example of how to trace all the relevant causation factors directly to the injuries for which compensation is claimed.
In Rocca v. Tuolumne County Electric Power & Light Co. (1926) 76 Cal.App. 569, a defendant power company was sued for damages, for the death of a pedestrian who came into contact with a charged wire, when the wire sagged after a sudden wind blew tree branches against it. The court held that it was a jury question whether the defendant power company had been negligent, by not properly maintaining its wires or guarding them against reasonably foreseeable dangers (e.g., nearby tree limbs falling on an unprotected wire). "[W]here injury could reasonably have been anticipated, it is not a prerequisite to liability that the wrongdoer should be able to anticipate the precise form of the consequential injury. Whether an injury should have been anticipated by defendant as the result of his negligent act depends upon the facts and circumstances of each particular case, and is ordinarily for the jury to determine." (Id. at pp. 583-584; 6 Witkin, Summary of Cal. Law, supra, § 1199, p. 577.) These firestorms and Defendants' conduct must be viewed in that light, as having both natural and artificial features.
In deciding whether liability for class-wide injury to property can be shown through common proof, the courts have placed great emphasis upon the unique nature of real property. In San Jose, the court reaffirmed the viability of the "fundamental maxim that each parcel of land is unique. [Citations.] Although this rule was created at common law, the very factors giving it vitality in the simple days of its genesis take on added significance in this modern era of development. Simply stated, there are now more characteristics and criteria by which each piece of land differs from every other." (San Jose, supra, 12 Cal.3d at pp. 461-462 [mentioning that "the development, character, and uses of the geographic region of this proposed class are diverse"].)
As applied here, these substantial factor causation principles require us to make a distinction between the preliminary causation inquiries about the points of origin of the fires, and the chain of causation leading to the ultimate effects of the fire upon the individual, unique properties of Plaintiffs. Even if Plaintiffs will be able to show that the three fires were originally ignited through the negligence of Defendants, numerous additional factors arguably contributed to the spreading of the fires and to the devastation they caused at their ultimate destinations, i.e., the locations of the potential class members' properties within each fire complex.
Plaintiffs' properties were improved to varying degrees with businesses and residences, as shown by the proposed class representatives' declarations. Even in the extreme fact situation of a wildfire that may have been negligently ignited, the risk of injury to the properties could be measurably affected to varying degrees by different conditions, such as those on which Defendants' affirmative defenses were based (e.g., weather, terrain, and the physical surroundings, which may potentially implicate comparative negligence principles regarding Plaintiffs or third parties). We next look to the strength of Plaintiffs' theory for class action proof of across-the-board harm to them, and liability of Defendants.
D. Special Class Action Concerns in Proving Causation of Property Damage
To establish liability for property damage, a plaintiff must first make a showing of the necessary causal connection between the tortious conduct and the injury. (6 Witkin, Summary of Cal. Law, supra, § 1553, pp. 1027-1028; Evans, supra, 178 Cal.App.4th at pp. 1434-1436.) Part of this causation inquiry is whether "the fact of damage" is clearly established. (6 Witkin, Summary of Cal. Law, supra, § 1551, p. 1025; Ali, supra, 176 Cal.App.4th at pp. 1349-1350.) Where the infliction of damage was certain, the amount of damage may be shown through reasonable approximation or inference. (6 Witkin, Summary of Cal. Law, supra, § 1551, p. 1024.) The same rules of legal or proximate cause that are utilized to "determine liability also determine whether the defendant shall be liable for particular items of injury or loss." (6 Witkin, Summary of Cal. Law, supra, § 1553, p. 1027.) This concept is also referred to as requiring certainty of damage from the particular conduct, in order for liability to be imposed on the actor. (Ibid.)
A complex interplay of intervening and supervening causes already exists in these wildfire cases, as seen in the affirmative defenses raised, including intervening and superseding causes, "unavoidable accident, " comparative negligence of Plaintiffs or third parties or failure to mitigate Plaintiffs' damages, such as compliance with fire safety regulations, preemption under Public Utilities Code section 1759 (Cal. PUC jurisdiction) and the like. Plaintiffs continue to contend that the only common proof required to establish Defendants' overall liability will deal with the ignition and 16-day geographical progression of the fire complexes.
A practice guide author has discussed the problem of separating proximate cause issues from other class liability issues. (See 5 Newberg on Class Actions (4th ed.) § 17:6.) "From a class action perspective, the general risk or harmful effect of the defendants' conduct usually constitutes a common question because it can normally be determined without regard to claims of specific individuals.... Courts should be wary, however, of severing general causation issues for separate trial in the abstract without direct reference to and testimony from specific individual plaintiffs. Such a trial of 'causation in the air' may seriously affect the rights of plaintiffs and class members to a jury determination of this general causation issue in the actual context and circumstances giving rise to their claims. [M]ass torts are of three general types [accident, toxic torts, or defective products], and proof of proximate cause varies with the type of tort involved." (See 5 Newberg on Class Actions, supra, § 17:28; fn. omitted; italics added.)
Likewise, such a trial of "causation in the air" could also be unfair to defendants, by imposing liability without regard to the possibility of any significant contributing, intervening, or superseding causes. (See 5 Newberg on Class Actions, supra, at § 17:28.) We will discuss the proof problems of tying causation to particular facts in part IIE., post.
Particularly in the context of redressing a nuisance, class treatment is unusual because nuisance claims are based on a defendant's activities that inflict individualized property damage upon unique parcels of property. "Only in an extraordinary situation would a class action be justified where, subsequent to the class judgment, the members would be required to individually prove not only damages but also liability." (San Jose, supra, 12 Cal.3d 447, 463.)
We turn to other authorities discussing the appropriateness of class-wide proof of liability for analogous property damage. In Frieman v. San Rafael Rock Quarry, Inc. (2004) 116 Cal.App.4th 29 (Frieman), the appellate court held class certification was inappropriate, where nuisance claims were pursued in a class action for damages, to compensate for excessive noise and disturbances generated by the defendant's quarry. The class members could not be said to be suffering from uniformly inflicted damages, based upon expert reports on varying "noise exposure" over a large geographical area. In Frieman, the court found a complete lack of commonality of liability issues as to all of the proposed class members, as well as the extent and nature of the damages they suffered from quarry noise and vibration. (Id. at pp. 41-42.)
In Evans, class treatment was sought for property damage incurred by individual class members, based upon a defective product theory, and also based upon assumptions that because the product (a shower pan) was defectively designed, each individual members' property must have actually been damaged by the defective shower pan. (Evans, supra, 178 Cal.App.4th 1417, 1430-1431.) This court rejected those theories, stating that a correct approach instead required all class members to prove specific forms of property damage to the particular home, and to prove that such damage was caused by the defect alleged, " 'not some other agent. Given this need for individualized proof, commonality of facts is lost and the action splits into more pieces than the allegedly defective foundations.' " (Id. at p. 1435, quoting Hicks, supra, 89 Cal.App.4th 908, 923-924 [a construction defect case].)
In Hicks, denial of certification of the class action was deemed proper on strict liability and negligence theories pertaining to alleged defective construction of residence foundations. However, class treatment was allowed there for other claims that were based on breach of express and implied warranties, due to greater commonality of fact and law. (Hicks, supra, 89 Cal.App.4th 908, 923-924.)
In Evans, supra, 178 Cal.App.4th at pages 1430 through 1431, we summarized the applicable authorities as providing that "although a trial court has discretion to permit a class action to proceed where the damages recoverable by the class must necessarily be based on estimations, the trial court equally has discretion to deny certification when it concludes the fact and extent of each member's injury requires individualized inquiries that defeat predominance. The evidence offered here is similar to the evidence considered in Frieman insofar as there is a potentially wide disparity in the amount of damages recoverable by each class member, and the trial court here (as did the trial court in Frieman) exercised its discretion to conclude these individual issues predominated over common issues. We likewise cannot find it was an abuse of discretion to deny certification based on this finding." (Id. at p. 1431.)
In Basurco, supra, 108 Cal.App.4th 110, 113, class treatment was not allowed for plaintiffs seeking recovery due to earthquake damage to property. They sued their insurers, seeking to certify a class to pursue their claim that the insurer had improperly processed their claims, by improperly calculating the policy's one-year limitations period from the date of the earthquake, instead of the date on which the property damage became "appreciable." (Id. at p. 113.) The appellate court upheld the trial court's ruling denying class certification, on the ground that neither sufficient commonality of law and fact, nor superiority of the class action method, had been demonstrated. On the commonality issue, the court said that " 'each member's right to recover depends on facts peculiar to his case, ' " (id. at p. 118), and there, in order to determine the merit of any policyholder's claim, "[the Insurer] may have to send a team of experts--a construction consultant, a structural engineer, and a geologist--to each policyholder's home. No two investigations will be the same." (Id. at p. 119.) Also, some earthquake claims might have been unrelated to any covered repairs, requiring investigations.
In Basurco, resolution of each of the insured's files and claims would have to be individualized, depending on the type of property damage for which coverage was sought: "[T]he existence of damage, the cause of damage, and the extent of damage would have to be determined on a case-by-case basis." (Basurco, supra, 108 Cal.App.4th at p. 119.) This made class certification inappropriate.
Our factual context is even more challenging, since the visions and memories of terrifying sheets of fire scorching the landscape may bring to mind vivid considerations of foreseeability of harm and responsibility for inflicting it, due to any negligence in conducting activities in the area under known dangerous conditions. (See Rocca v. Tuolumne County Electric Power & Light Co., supra, 76 Cal.App. 569, 583-584.) Nevertheless, a trial of "causation in the air" is to be avoided, where it would resolve only abstract issues and might seriously affect the rights of the parties to a fact-based determination of all causation issues, "in the actual context and circumstances giving rise to their claims, " if they do not have sufficiently common features. (5 Newberg on Class Actions, supra, at § 17:28.)
Here, we can see no meaningful commonality in the liability portion of the required analysis, with respect to proving property damage on any of Plaintiffs' theories. Even if they can demonstrate with common proof at what points each of the three fires started, and also where they spread, they still cannot establish to any significant, acceptable extent what degree of liability for property damage must be directly attributable to these Defendants, because the damaging effects of the fires depended on exactly what was in the paths of the fires. All class members must prove specific forms of damage to their particular properties, and that such damage was caused by the negligence alleged (ignition), "not some other agent. Given this need for individualized proof, commonality of facts is lost...." (Evans, supra, 178 Cal.App.4th at p. 1435.)
Plaintiffs have not shown how their negligence, nuisance, and related theories are analytically amenable to class treatment, because the characteristics of each of the properties, for purposes of determining liability for compensatory damages, and the nature of the activities normally conducted at the properties by their owners or occupants, for purposes of determining loss of use damage liability, are not suitable for common proof. (Sav-On, supra, 34 Cal.4th at p. 327.) The claimed displacement expenses, for example, for Plaintiffs who conducted various businesses at various affected properties, or who lost wages from being evacuated, will require individualized inquiries. (Basurco, supra, 108 Cal.App.4th 110, 113-119.) Both the unique properties and the unique human costs in expenses incurred create serious concerns about the feasibility or fairness of a liability-only class ruling. There was no "uniform" impact of Defendants' allegedly negligent activities upon either the property holdings or the related living expenses of the class Plaintiffs.
Moreover, the affirmative defenses raise issues about whether the injuries attributable to the negligent conduct of Defendants were "enhanced" by the other conditions in existence at time, including weather conditions, third party activities or negligence, all of which must be analyzed for compensation purposes under substantial factor causation principles. (See Soule, supra, 8 Cal.4th 548, 581.) In reaching these conclusions, which we limit to procedural class certification issues, we do not minimize the scope of the firestorm damage, and we express no opinion on the merits of the substantively complex causation issues ultimately to be resolved.
E. Factual Issues
1. Timing of Events and Injuries
We next consider the types of common proof that Plaintiffs seek to use to establish, as part of the causation element, that the fact of damages (the spread of the fire to each of their properties, causing damage) is a class-wide matter. We look to whether the trial court's ruling is supported by substantial evidence, or by any properly implied findings. (Evans, supra, 178 Cal.App.4th at pp. 1421-1422.) We do not overturn it " ' "unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]" ' [citation].... " (Sav-on Drug, supra, 34 Cal.4th 319, 326-327.)
The criteria for certifying classes vary, depending on the nature of the events giving rise to the lawsuits. Several important characteristics are whether the tortious conduct involved a single event (a mass accident), or in products liability, where the focus is not upon the happening of an event, but on the defects or risks involved in use of a product. (5 Newberg on Class Actions, supra, § 17:26.)
Factually, Plaintiffs emphasize the sudden and catastrophic nature of the 16-day firestorm, and seek to distinguish their case from cases disallowing class treatment in another common class context, where there were years of residents' exposure to a toxic substance (Lockheed Martin), thus creating difficult and individualized personal injury proof problems. (Lockheed Martin, supra, 29 Cal.4th at pp. 1106-1111.) Likewise, Plaintiffs would distinguish this case from San Jose, where there were years of airport noise ranging over a wide property area, causing diverse damages that had to be individually evaluated. (San Jose, supra, 12 Cal.3d at pp. 459-463.)
Plaintiffs believe their case is suitable for class treatment because of the sudden impact of the firestorms, so that common proof of Defendants' liability for kindling and spreading the fires, as well as their major effects on all in their paths, will be dispositive. This would include expert evidence on power line design, construction, operation, maintenance, and quality control. Plaintiffs seek to present common evidence from percipient witnesses, Defendants' records, and expert testimony in the fields of engineering, metallurgy, meteorology, utilities, firefighting, investigation, and more. Alternatively, Plaintiffs appear to argue that Defendants' negligence went on over a long period of time before the suddenly caused fires, e.g., through a lack of quality control or maintenance.
On the timing factor, it is difficult to compare these wildfire cases to a "mass accident case, " which normally involves one event and a group of identifiable victims (e.g., a plane crash). (5 Newberg on Class Actions, supra, § 17:6.) A somewhat closer comparison is a toxic environmental tort case, where causation determinations are unavoidably more attenuated. "Even when one event is the incidental cause, such as the overturning of a train filled with chemicals, the relation between the incident and the injury is more uncertain. Furthermore, whereas in mass accidents the class may be defined easily, that task becomes more difficult when one must take into account, for example, the nature of dispersal patterns of emitted pollutants through air, land, and water.... [¶] Even with bifurcation, proximate cause might require individual proof." (Ibid.; italics added.)
In a mass accident case, "[t]here is almost always at least one common issue relative to tort liability, even when the measure of damages varies.... The proof of proximate cause is also common. Bifurcation is possible to answer the common questions of liability and, usually, proximate cause; and classes tend not to be so large as to be unmanageable in a class suit." (5 Newberg on Class Actions, supra, § 17:6.)
We find analogous the Lockheed Martin analysis of individual proof problems and causation, such as where a long period of exposure or latency may occur before symptoms of injury from a toxic tort appear. Even where the record on certification contained substantial evidence of exposure to toxic chemicals during the class period, "evidence of exposure alone" could not support imposition of a class-wide remedy, because liability had not yet been established through common proof. (See Lockheed Martin, supra, 29 Cal.4th at pp. 1108-1109.) "Taken as a whole, the medical expert testimony plaintiffs presented in support of their motion for class certification is too qualified, tentative and conclusionary to constitute substantial evidence that plaintiffs, by adopting a liability theory that makes actual dosages and variations in individual response irrelevant, will be able to prove causation and damages by common evidence." (Id. at p. 1111; italics added.)
Here too, the fact of exposure to the wildfires ("dosage") is only part of the liability calculation, with regard to property damage and displacement expenses of persons in the path of the fires("variations in individual response"). (Lockheed Martin, supra, 29 Cal.4th 1096, 1111.) Substantial factor causation rules still require that all Plaintiffs show the specific facts of damage that was caused to them by the negligent acts of these Defendants.
We think that Plaintiffs are grossly oversimplifying the causation analysis, by essentially arguing that "but for" the negligence of these Defendants, the fires would not have occurred and Plaintiffs would not have been damaged. (Mitchell v. Gonzales, supra, 54 Cal.3d at p. 1052 ["but for" test subsumed in substantial factor causation theory].) The more modern view is that many causative factors combined to determine the path and intensity of the fires, and the fact of damage negligently caused by Defendants will remain an individualized inquiry, due in part to the wide geographical scope of the affected areas and the variety of potentially significant causative factors. (See Frieman, supra, 116 Cal.App.4th 29, 41-42; 5 Newberg on Class Actions, supra, § 17:28.)
2. Types of Damages Sustained
"Cause in fact" issues also arise for purposes of allocating liability for property damage inflicted by the three fires, as well as displacement expenses. Different fires came at Plaintiffs from different directions, and some fires merged and were affected by different geographical and weather conditions. The three proposed class representatives provided declarations about the widely differing kinds of property loss and personal property loss that they sustained in the wildfires. As to the negligence causes of action, nuisance theory and inverse condemnation, any recovery will be "predicated on facts peculiar to each prospective plaintiff... liability can be established only after extensive examination of the circumstances surrounding each party. Development, use, topography, zoning, physical condition, and relative location are among the many important criteria to be considered. No one factor, not even noise level, will be determinative as to all parcels." (San Jose, supra, 12 Cal.3d 447, 461.) The same is true for trespass liability, that a myriad of individualized evidentiary factors will apply. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937; see fn. 11, ante.)
The trial court was justified in rejecting the proposal of the class representatives that their three test trials should take place to establish the overall liability of these Defendants to them, and in turn to the class. Even those three test cases would involve not only proof of Defendants' original alleged negligence at the ignition points, but also consideration of additional factors in different cases, such as any contribution to causation by the Cox communication lines (Guejito), the tree-trimming contractor's possible inattention to duty (Rice), and/or possible variations in weather conditions or other surrounding circumstances. Possibly, activities of third parties or firefighters may have been contributory or comparative causative factors in a particular class member's claimed damages, as Defendants claim (e.g., nearby propane tanks or lack of fire code compliance or mitigation). These affirmative defenses will require fact-intensive inquiries.
Here, as in San Jose, supra, 12 Cal.3d 447, "these uniqueness factors weigh heavily in favor of requiring independent litigation of the liability to each parcel and its owner." (Id. at p. 462.) It is true that both San Jose (airport noise) and Frieman, supra, 116 Cal.App.4th 29 (quarry blasting noise and dust) involved less drastic destruction of property values than these wildfires inflicted on many plaintiffs. Nevertheless, liability for property damage must be examined and imposed with regard to the specific characteristics of each parcel and the circumstances surrounding each party. (San Jose, supra, at pp. 462-463.)
The same concerns arise as to the potential class members' claims for displacement expenses and loss of use, based on their individual circumstances. It is not enough for Plaintiffs to assert that class certification is appropriate because a liability class may be divided into subclasses. (Cal. Rules of Court, rule 3.765(b).) "[E]ven were we to allow a subclassification process here, the factors giving the uniqueness rule vitality would serve to break down the alleged beneficial aspects which such a process might yield under these facts, making a class action here unmanageable. Given the many recognized factors combining to make up the uniqueness of each parcel of land, the number of subclassifications into which the class would be required to be divided to yield any meaningful result would be substantial." (San Jose, supra, 12 Cal.3d at p. 462.)
Here too, the trial court correctly concluded numerous and substantial questions remain on determining any Plaintiffs' rights to recover, because in addition to any negligence of Defendants that is proven to have occurred at the points of origin of the fires, there may have existed significant additional or alternative causative factors at work along with that original negligence, worsening it and enhancing individual damages to more or less foreseeable degrees. (See San Jose, supra, 12 Cal.3d 447, 460-461; Soule, supra, 8 Cal.4th at pp. 580-581.) There is no indication that the trial court made any erroneous legal assumptions in analyzing the respective showings on the motion. (Evans, supra, 178 Cal.App.4th at p. 1431; Sav-on Drug, supra, 34 Cal.4th 319, 326-327, 329.) Substantial evidence supports the trial court's determination of a lack of predominant commonality of issues.
III
POTENTIAL SUPERIORITY OF CLASS TREATMENT
We turn next to the trial court's findings that rejected Plaintiffs' claims of superiority of a class proceeding, as compared to the pursuing of individual actions. The class certification motion was denied for lack of any demonstrated superiority of class treatment, both as to the theoretical type of certification sought (liability of Defendants for causing the fire), and as to separate problems, dealing with procedural manageability.
To examine this ruling, we review the rules for evaluating when a class action may be a superior method of processing a multitude of claims, and apply those rules to this record. Again, we seek to determine if " ' "(1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]" [citation].... ' " (Sav-on Drug, supra, 34 Cal.4th 319, 326-327.) The relevant approach evaluates the costs and benefits of adjudicating Plaintiffs' claims in a class action, as compared to the costs and benefits of proceeding through numerous separate actions. (Id. at p. 339, fn. 10.)
A. Standards for Evaluating Alternative Procedures
" '[O]ne must not lose sight of the fact that the class action statute "is based upon the equitable doctrine of virtual representation, which ' "rests upon considerations of necessity and paramount convenience, and was adopted to prevent a failure of justice." ' [Citations.]" ' [Citation.] Accordingly, a class action should not be certified unless ' " ' "substantial benefits accrue both to litigants and the courts" ' " ' [citation], and the moving party proves a class action is 'superior' to separate lawsuits by class members.' " (Ali, supra, 176 Cal.App.4th 1333, 1352-1353.) Even where a case may include predominating common questions of law or fact, a court may nevertheless evaluate class certification as inappropriate, based upon unmanageability or unfairness in a class proceeding. (Ibid.; Basurco, supra, 108 Cal.App.4th 110, 120.)
As discussed previously, we cannot fault the trial court for concluding that no common questions of law or fact are "predominant" among this proposed liability-only class. We are next required to address the companion issue of whether class certification would provide a procedurally superior method of resolving the dispute, by providing substantial benefits both to the courts and the litigants.
In Schneider v. Vennard (1986) 183 Cal.App.3d 1340, 1346 (Schneider), the court used the approach endorsed in Vasquez, supra, 4 Cal.3d 800, 821, to fashion innovative procedures that are fair to litigants and that serve judicial economy. In Schneider, the court explained that since the class action statute does not supply any procedural framework for making a certification decision, the courts have utilized related authorities, such as the Federal Rules of Civil Procedure and their superiority analysis. (Schneider, supra, at pp. 1345-1348.)
California case law has utilized such superiority analysis at least since Schneider, supra, 183 Cal.App.3d 1340, and Supreme Court cases such as Daar, supra, 67 Cal.2d 695, 709 at footnote 13; Washington Mutual, supra, 24 Cal.4th 906, 922-923, and Sav-On Drug, supra, 34 Cal.4th 319, 339, footnote 10, have directly discussed that criteria. Plaintiffs nevertheless engage in a pointless debate about whether primary or merely secondary sources have created the numerous criteria that are utilized for evaluating superiority in this context, in both federal and state cases. It is enough for our purposes to acknowledge that in all those cases, and expressly in Basurco, supra, 108 Cal.App.4th 110, 120, and in Ali, supra, 176 Cal.App.4th 1333, 1353, the courts have essentially adapted federal guidance for class certification as set forth in Rule 23(b)(3) (classes allowed where "the questions of law or fact common to class members predominate over any questions affecting only individual members, and [where] a class action is superior to other available methods for fairly and efficiently adjudicating the controversy").
Further, in Basurco, the court adapted this federal rule's criteria for making such findings on superiority, as summarized in a practice guide. In Basurco, these relevant considerations are outlined on class treatment: " '[(1)] The interest of each member in controlling his or her own case personally; [¶] [(2)] The difficulties, if any, that are likely to be encountered in managing a class action; [¶][(3)] The nature and extent of any litigation by individual putative class members already in progress involving the same controversy; [and] [¶] [(4)] the desirability of consolidating all claims in a single action.'... [Citation.]" (Basurco, supra, 108 Cal.App.4th 110, 121.)
Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) section 14:16, page 14-15.
By comparison, Rule 23(b)(3) has the same basic material to be considered, stated in a different order: "(A) the class members' interests in individually controlling the prosecution or defense of separate actions; [¶] (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; [¶] (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and [¶] (D) the likely difficulties in managing a class action."
In the Advisory Committee Notes to Rule 23(b)(3), the authors provide another context for evaluating whether class actions or other methods of handling litigation have greater practical advantages. Specifically, the authors explain: "Thus one or more actions agreed to by the parties as test or model actions may be preferable to a class action; or it may prove feasible and preferable to consolidate actions. [Citation.] Even when a number of separate actions are proceeding simultaneously, experience shows that the burdens on the parties and the courts can sometimes be reduced by arrangements for avoiding repetitious discovery or the like." (Rule 23(b)(3), Advisory Com. Notes (1966 Amendment).)
B. Application of Standards
Utilizing these concepts, we evaluate the remaining arguments on appeal. Plaintiffs first seem to contend that the trial court used improper criteria, by merely speculating that there would be objectors to the class format, such that numerous class members would opt out of the class proceedings. Plaintiffs say there must be many uncompensated persons who received only partial insurance payouts, and Plaintiffs fault the court for saying they offered no suggestions as to how to manage and require participation from thousands of such inactive class members (perhaps 17, 000 of them). However, no credible suggestions are supplied here.
Next, regarding the existing litigation by individual putative class members, Plaintiffs attack the court's determination that those 70-plus individual actions, consisting of over 1, 000 individual plaintiffs, are entitled to some deference and weight. The court heard extensive opposition from the Many Plaintiffs, who provided a strong showing of how they have strong interests in controlling their own cases, given the duplicative nature of the relief sought, and given the potential disadvantages of the proposed class action. It is not determinative that only a sample of these Many Plaintiffs provided personal declarations (16 of them), as the information supplied was sufficient to allow the court to exercise its discretion in the matter.
With regard to the potential difficulties to be encountered in managing a class action, Plaintiffs argue that they provided practical proposals for managing the litigation, such as a 32-court day liability trial, with much shorter damages proceedings per claimant to follow (e.g., one day for Downing, or three days for the Clarks). However, we have already explained that Plaintiffs' view that class liability issues are uniform is not well founded, and their proposal to consolidate all 300, 000 claims into a single liability proceeding lacks feasibility. (Basurco, supra, 108 Cal.App.4th 110, 121.)
With a clearly demonstrated understanding of the problems with Plaintiffs' proposals, the experienced trial court was taking its own steps toward streamlining the cases, by inviting all counsel to participate in designing test case procedures, model actions, or bifurcation of issues, or other case management techniques. The court said that "we will find a way" to avoid retrying liability thousands of times, and it was in the process of doing so. This was a rational way of exercising discretion under the circumstances, at this stage of the proceeding, and it should be given due deference by this court.
Here, as in Basurco: "To certify a class in this case would undermine the efforts of the superior court to manage the [dozens] of other similar cases [of hundreds of plaintiffs]. We will not turn our backs on the prodigious and innovative efforts of the superior court to manage the complexities of the [wildfire] litigation. Accordingly, we affirm the trial court's order." (Basurco, supra, 108 Cal.App.4th 110, 122; italics added.)
DISPOSITION
Affirmed. Each party to bear its own costs on appeal.
WE CONCUR: McDONALD, J., McINTYRE, J.