This case was last updated from Los Angeles County Superior Courts on 07/17/2019 at 01:06:36 (UTC).

RACHEL KROPP ET AL VS SOUTHERN CALIFORNIA EDISON COMPANY

Case Summary

On 03/20/2018 RACHEL KROPP filed a Personal Injury - Other Personal Injury lawsuit against SOUTHERN CALIFORNIA EDISON COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are WILLIAM D. STEWART and DENNIS J. LANDIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8926

  • Filing Date:

    03/20/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

WILLIAM D. STEWART

DENNIS J. LANDIN

 

Party Details

Plaintiff, Petitioner and Guardian Ad Litem

KROPP RACHEL

Claimant

INDEMNITY AND LIABILITY COMPANY

Defendants and Respondents

SOUTHERN CALIFORNIA EDISON COMPANY

DOES 1 THROUGH 50

HERMAN WEISSKER INC.

Minors

KROPP JUSTIN DECKER

KROPP JAMESON CASH

Attorney/Law Firm Details

Minor, Plaintiff and Petitioner Attorneys

BRENT JOSEPH P

BRENT JOSEPH PETER

Claimant Attorney

LETOFSKY BRIAN SAMUEL

Defendant and Respondent Attorneys

FOX DANA ALDEN

LEWIS BRISBOIS BISGAARD & SMITH LLP

 

Court Documents

Notice of Ruling

9/17/2018: Notice of Ruling

Notice of Posting of Jury Fees

9/27/2018: Notice of Posting of Jury Fees

Notice

10/2/2018: Notice

Motion to Compel Further Discovery Responses

2/25/2019: Motion to Compel Further Discovery Responses

Memorandum of Points & Authorities

2/25/2019: Memorandum of Points & Authorities

Separate Statement

2/25/2019: Separate Statement

Memorandum of Points & Authorities

2/28/2019: Memorandum of Points & Authorities

Notice

3/15/2019: Notice

Notice

3/25/2019: Notice

Declaration

4/11/2019: Declaration

Memorandum of Points & Authorities

4/16/2019: Memorandum of Points & Authorities

Declaration

4/16/2019: Declaration

Ex Parte Application

4/16/2019: Ex Parte Application

Notice of Ruling

6/5/2019: Notice of Ruling

Declaration

7/9/2019: Declaration

Declaration

7/10/2019: Declaration

Motion for Summary Judgment

7/16/2019: Motion for Summary Judgment

SUMMONS

5/1/2018: SUMMONS

121 More Documents Available

 

Docket Entries

  • 07/16/2019
  • Declaration ([AMENDED] OF ERIC M SOWATSKY IN SUPPORT OF DEFENDANT SOUTHERN CALIFORNIA EDISON COMPANYS MOTION FOR SUMMARY JUDGMENT); Filed by Southern California Edison Company (Defendant)

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  • 07/16/2019
  • Separate Statement; Filed by Southern California Edison Company (Defendant)

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  • 07/16/2019
  • Proof of Service by Mail; Filed by Southern California Edison Company (Defendant)

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  • 07/16/2019
  • AMENDED SEPARATELY BOUND VOLUME OF EVIDENCE IN SUPPORT OF DEFENDANT SOUTHERN CALIFORNIA EDISON COMPANYS MOTION FOR SUMMARY JUDGMENT; Filed by Southern California Edison Company (Defendant)

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  • 07/16/2019
  • Motion for Summary Judgment; Filed by Southern California Edison Company (Defendant)

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  • 07/10/2019
  • Notice ([Amended] and Motion to Compel Further Responses to Request for Production of Documents, Set One); Filed by Jameson Cash Kropp (Plaintiff); Justin Decker Kropp (Plaintiff); Rachel Kropp (Plaintiff)

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  • 07/10/2019
  • Memorandum of Points & Authorities; Filed by Jameson Cash Kropp (Plaintiff); Justin Decker Kropp (Plaintiff); Rachel Kropp (Plaintiff)

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  • 07/10/2019
  • Declaration ([Amended] of Joseph P. Brent in support of Plaintiffs' Motion to Compel Request for Production of Documents, Set One, RFP Nos. 25, 26, and 37, and Motion to Compel PMQ Deposition); Filed by Jameson Cash Kropp (Plaintiff); Justin Decker Kropp (Plaintiff); Rachel Kropp (Plaintiff)

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  • 07/09/2019
  • Separate Statement; Filed by Jameson Cash Kropp (Plaintiff); Justin Decker Kropp (Plaintiff); Rachel Kropp (Plaintiff)

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  • 07/09/2019
  • Declaration (Amended Declaration); Filed by Jameson Cash Kropp (Plaintiff); Justin Decker Kropp (Plaintiff); Rachel Kropp (Plaintiff)

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146 More Docket Entries
  • 04/03/2018
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

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  • 04/03/2018
  • Application ; Filed by Plaintiff/Petitioner

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  • 04/03/2018
  • Application ; Filed by Plaintiff/Petitioner

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  • 04/03/2018
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

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  • 03/20/2018
  • Complaint; Filed by Rachel Kropp (Plaintiff)

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  • 03/20/2018
  • COMPLAINT FOR WRONGFUL DEATH AND SURVIVAL DAMAGES

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  • 03/20/2018
  • Complaint

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  • 03/20/2018
  • Declaration (Pursuant to CCP 377.32); Filed by Jameson Cash Kropp (Plaintiff); Justin Decker Kropp (Plaintiff); Rachel Kropp (Plaintiff)

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  • 03/20/2018
  • Civil Case Cover Sheet; Filed by Rachel Kropp (Plaintiff)

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  • 03/20/2018
  • DECLARATION OF RACHEL KROPP TN SUPPORT OF MOTION FOR ORDER SUBSTITUTING SUCCESSOR TN INTEREST FOR DECEASED PLAINTIFF

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Tentative Rulings

Case Number: BC698926    Hearing Date: October 25, 2019    Dept: A

Kropp v Southern California Edison

Demurrer; Motion to Strike

Calendar:

12

Case No.:

BC698926

Hearing Date:

October 25, 2019

Action Filed:

March 20, 2018

Trial Date:

Not Set

MP:

Defendant Southern California Edison Company

RP:

Plaintiffs Rachel Kropp, Individually and as Guardian Ad Litem for Justin Decker Kropp and Jameson Cash Kropp, minors and heirs of Justin Kropp

ALLEGATIONS:

Plaintiffs Rachel Kropp, individually and as Guardian Ad Litem for Justin Decker Kropp and Jameson Cash Kropp (the “Plaintiffs”), minors and heirs of Justin Kropp (“Decedent”), allege Decedent died on January 19, 2018 as a result of being electrocuted while working on a project. They further allege that Defendant Southern California Edison Company (“Defendant”) was contracted by the California Department of Transportation (“DOT”) to expand Highway 58 and that Defendant had subcontracted Herman Weissker, Inc. (“HWI”) to perform relocation and replacement work. Decedent was an employee of HWI as a journeyman lineman. Plaintiffs allege that Defendant was negligent because it knew their worksite was dangerous and it should have known that HWI did not have the technical knowhow or equipment to perform on the worksite.

Plaintiffs filed their initial Compliant on March 20, 2018, and filed the operative First Amended Complaint (“FAC”) on August 26, 2019, and submitted a Corrected FAC on October 03, 2019 – which includs a 119 page ‘Exhibit 1’ to the FAC. The FAC alleges three causes of action sounding in (1) Wrongful Death; (2) Survival – Negligence; and (3) Survival – Violation of Pub. Utl. Code §2106.

PRESENTATION:

Defendant filed the instant demurrer and motion to strike on September 20, 2019. Plaintiffs opposed both on October 11, 2019, and reply briefs were submitted on October 18, 2019.

RELIEF REQUESTED:

Defendant demurrers to the Third Cause of Action, and moves to strike references to the “Orozco Order” and to punitive damages.

DISCUSSION:

Standard of Review – Demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Code Civ. Proc. §430.30,(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 339.

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof. Blank, supra, 39 Cal. 3d at p. 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal. App. 4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank, supra, 39 Cal. 3d at p. 318.

Pursuant to Code Civ. Proc. §430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).

Meet and Confer – Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3).

On review of the Declaration of Edward Baker, the Court finds that Defendant met its meet and confer obligation prior to filing the instant demurrer.

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Third Cause of Action (Violation of Public Utility Code §2106) – Under Pub. Util. Code §2106, a public utility may be subject to damages, including exemplary damages for willful conduct, for any violation or omission of “the Constitution, any law of this State, or any order or decision of the commission”.

At issue in the instant demurrer is whether a settlement agreement entered into by Defendant on or about December 14, 2016, regarding the death of an electrical worker in 2013 (a Brandon Orozco), qualifies as an “order or decision of the commission” such that Defendant may be held liable for damages for failure to adhere to the terms of the settlement agreement. Defendant demurs on the grounds that (1) the Orozco settlement agreement does not constitute an “order or decision of the commission”; (2) that the Orozco settlement agreement is inadmissible in this action pursuant to Pub. Util. Code §315; (3) that even if it did constitute such an order or decision, the decision was limited to being an approval of a settlement agreement, not an order compelling compliance with the terms of that agreement; and (4) that enforcing the Orozco settlement agreement as a mechanism for private enforcement of settlement agreements by third parties would interfere with the Public Utilities Commission’s regulatory work under Pub. Util. Code §1759, rendering such an interpretation improper.

Plaintiffs contend that a plain reading of the Orozco matter provides that the commission adopted the settlement agreement as a “Decision Adopting the Settlement Agreement”, making Defendant’s first argument incorrect. Plaintiff next argues that Pub. Util. Code §315 does not bar use of the settlement agreement in the instant action, but only prohibits the use of reports and conclusions in actions based on the same underlying injury. As to Defendant’s third argument, Plaintiffs contend that Defendant’s position leads to the absurd result of Defendant agreeing to undertake certain actions in resolution of a claim, but that any failure to undertake those actions cannot result in liability for their failure by a future claimant injured by their failure to comply with their settlement agreement. Finally, Plaintiffs argue that Defendant’s position regarding Pub. Util. Code §1759 is incorrect, and that the California Supreme Court’s decision in San Diego Gas & Elec. Co. v. Superior Court (1996) 13 Cal. 4th 893 provides the relevant test, which establishes that the instant action should proceed.

As to the first issue raised, this Court holds that the order by the Public Utilities Commission in the Orozco case is a “order or decision of the commission” for the purposes of Pub. Util. Code §2106. Specifically, the Court finds that the Orozco settlement was an order of the Public Utilities Commission on the grounds that (1) the Public Utilities Commission characterizes its order as an order, (FAC, Ex. 1, pp. 42-43); and (2) such an interpretation is consistent with the Public Utilities Code and authority of the Commission. See Pub. Util. Code §311(d) (“Every finding, opinion, and order made in the proposed decision and approved or confirmed by the commission shall, upon that approval or confirmation, be the finding, opinion, and order of the commission.”).

As to the second issue raised on demurrer, the Court agrees with Plaintiffs’ interpretation of Pub. Util. Code §315, as the plain reading of the statute only bars the use of the commission’s order or recommendation in “any action for damages based on or arising out of such loss of life, or injury to person or property.” Pub. Util. Code §315 (emphasis added). While neither party presents information on the legislative purpose for the limitation, the Court reasons that the likely purpose is to prevent a factfinder from substituting the government agency’s recommendation or opinion for their own in reaching a conclusion. In any event, the plain reading of the code provision does not apply under these circumstances, and, as such, the Court will not adopt Defendant’s interpretation.

As to the third issue raised by Defendant on demurrer, that the ‘approval and adoption’ of the settlement agreement does not oblige Defendant to conform to the terms of the Orozco Order, the Court notes that this argument is unsupported by any authority. Demurrer, 9:1-13. On reply, however, Defendant argues that the adoption falls under Commission Rule 12.5, which states that “Commission adoption of a settlement is binding on all parties to the proceeding in which the settlement is proposed. Unless the Commission expressly provides otherwise, such adoption does not constitute approval of, or precedent regarding, any principle or issue in the proceeding or in any future proceeding.” This Rule, and Defendant’s argument, do not apply under these circumstances, as Plaintiff is not using the Orozco Order as precedent – i.e. as a basis to adopt a particular disposition in the instant action due to similar facts and law – but is using the binding nature of the order on Defendant to essentially argue that Plaintiffs are third-party beneficiaries of the Orozco Order. As the order is binding on Defendant, the Court concurs with Plaintiffs’ analysis of the applicability of the binding order on injuries allegedly caused by violations of the same binding order.

Finally, Defendant argue that the demurrer should be sustained pursuant to Pub. Util. Code §1759, which provides that “No court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court.” Pub. Util. Code §1759(a). Defendant does not provide a cogent analysis as to whether and how the instant Court proceeding will interfere with any of the Public Utility Commission’s official duties, and does not address the issue at all in reply. Demurrer, 9:13-11:2; Reply, pp. 1-5. By contrast, Plaintiffs’ analysis aptly describes the Public Utility Commission’s function of prospectively preventing future harms, not awarding damages for past injuries – as is the purpose of the instant action. See Hartwell Corp. v. Superior Court (2002) 27 Cal. 4th 256, 277 (“As noted, the PUC can redress violations of the law or its orders by suit (§ 2101), by mandamus or injunction (§§ 2102-2103), by actions to recover penalties (§§ 2104, 2107), and by contempt proceedings (§ 2113), but these remedies are essentially prospective in nature. They are designed to stop the utilities from engaging in current and ongoing violations and do not redress injuries for past wrongs… Because the PUC cannot provide for such relief for past violations, those damage actions would not interfere with the PUC in implementing its supervisory and regulatory policies to prevent future harm.”).

Accordingly, the Court will overrule the demurrer to the Third Cause of Action.

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Standard of Review – Motion to Strike – The proper procedure to attack false allegations in a pleading is a motion to strike. Code Civ. Proc. §436,(a). In granting a motion to strike made under Code Civ. Proc. §435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Code Civ. Proc., §436,(a). Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. Code Civ. Proc., §431.10. The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code Civ. Proc. §436(b).

As an initial matter, the Court will not strike the portions of the FAC referring to the Orozco Order, pursuant to the Court’s determination on demurrer.

As to the issue of whether Pub. Util. Code §2106 provides an independent basis for alleging punitive damages, Defendant argues that Pub. Util. Code §2106 cannot be read to strip the requirements for a punitive damages claim provided under Civ. Code §3294, requiring factual allegations of malice, fraud, or oppressive conduct. To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229. “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted).

Here, the Court considers that the allegations in the FAC support exemplary damages, at a minimum, on the theory of conscious disregard of the dangerous consequences of its conduct, which was ratified by officers of Defendant. FAC ¶¶22-26. As such, the Court will deny the instant motion to strike.

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RULING: Overrule demurrer; deny motion to strike.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Southern California Edison Company’s Demurrer and Motion to Strike came on regularly for hearing on October 25, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS OVERRULED; AND

THE MOTION TO STRIKE IS DENIED

DATE: _______________ _______________________________

JUDGE