In my “poop case” the public improvement was the sewer main. It was deliberately installed by the city. It was owned, operated and in use as intended by the city. It served the public. We needed only to show that the infrastructure caused the damage to my clients’ home to prevail. That was simple. The sewer main backed up and caused raw sewage to enter and damage my clients’ home.
In the PG&E cases, the public improvements that the company deliberately designed and constructed were the 30-inch gas transmission line that exploded under the Crestmoor neighbor- hood in San Bruno and the electrical distribution line in Amador County that ignited the Butte Fire when it was contacted by a tree. There was no question in either case that those public improvements were the factual cause of each incident.
PG&E is a private public utility, not a governmental entity. However, in Barham v. Southern California Edison
(1999) 74 Cal.App.4th 744, the Fourth District followed Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, in holding that a public utility is a state actor and is, in many respects, more akin to a governmental entity than to a purely private employer. “The nature of the California regulatory scheme demonstrates that the state generally expects a public utility to conduct its affairs more like a governmental entity than like a private corporation.” (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 469.) As such, the Barham court reasoned that there is no significant difference between a privately owned utility and a public utility, the likes of which had been held liable in inverse condemnation under virtually identical facts in Marshall
v. Department of Water & Power (1990) 219 Cal.App.3d 1124 and Aetna Life & Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865. (See also Pacific Bell v. Southern California Edison Co. (2012) 208 Cal.App.4th 1400, 1404.)
The Barham court distinguished the prior case of Cantu v. Pacific Gas & Electric Co. (1987) 189 Cal.App.3d 160, in which the court held that inverse condemnation did not apply because the improvement, in that case an electrical distribution line, did not serve a public purpose. In that case, the line served only a 16-unit subdivision. (Cantu v. Pacific Gas & Electric Co. (1987) 189 Cal.App.3d 160, 164 [The court concluded the use was “unlike the construction of permanent transmission towers or power lines, which are designed to transmit electricity over a much greater area.”].)
Procedurally liability for inverse condemnation can be achieved by a motion pursuant to Code of Civil Procedure § 1260.040. The motion must be made no later than 60 days before commencement of trial on the issue of compensation and heard by the trial judge. We made and prevailed on this motion in both the San Bruno and Butte Fire cases. If the court concludes that there is liability, i.e., that a taking has occurred, the case moves into a second phase during which the issue of compensation is fixed by a jury. (People v. Ricciardi (1943) 23 Cal.2d 390, 402-404; Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029, 1042-1043.)
The other benefit of an inverse claim is that the prevailing plaintiff is entitled to collect reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred. (C.C.P. § 1036.) Inverse condemnation does not allow the recovery of punitive damages.
As I write this article the investigation into the causes of the Tubbs, Atlas Peak, and Nuns fires in the wine country and North Bay continues. It remains to be confirmed whether PG&E’s or other utilities’ infrastructure caused any or all of these fires. If they did, inverse condemnation will again be alleged in an effort to recover damages to real and personal property.