Sacramento Municipal Utility District v. Torres CA3 ( 2024 )

Filed 10/21/24 Sacramento Municipal Utility District v. Torres CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
SACRAMENTO MUNICIPAL UTILITY DISTRICT, C098044
Plaintiff and Respondent, (Super. Ct. No. 34-2019-
00251807-CU-PO-GDS)
v.
MARCO TORRES,
Defendant and Appellant.
Defendant Marco Torres operated marijuana grows in houses at two locations,
Wheatland Drive in Sacramento (Wheatland Drive) and Buford Court in Antelope
(Buford Court). To aid in his enterprise, Torres stole power from plaintiff Sacramento
Municipal Utility District (SMUD) by circumventing SMUD’s meters using an electrical
bypass at each location. After the power theft was discovered and stopped, SMUD
commenced this civil action for damages for the unbilled electricity. After a bench trial,
the trial court awarded SMUD actual damages in the amount of $160,372.77. On
SMUD’s power theft cause of action, the court trebled the actual damages to $481,118.31
1
under Civil Code section 1882.2.1 On SMUD’s conversion cause of action, the court
awarded SMUD $320,745.54 in punitive damages which, combined with the actual
damages, also totaled $481,118.31. The court specified that these two damages awards
were coextensive rather than cumulative.
On appeal, Torres argues that: (1) issue preclusion barred relitigation of the
duration of his power theft because the relevant dates were determined in a restitution
proceeding in his prior criminal prosecution; (2) the actual damages award is not
supported by substantial evidence; and (3) punitive damages were not justified. We will
vacate the award of punitive damages and otherwise affirm the judgment.
BACKGROUND
SMUD filed a complaint against Torres asserting causes of action to recover
damages for, among other things, power theft (§ 1882.1), conversion, and breach of
contract. SMUD alleged these acts occurred at two locations, Wheatland Drive and
Buford Court.
The Trial
At trial, there was no dispute that Torres committed power theft. The parties
stipulated to Torres’s diversion of electricity at both addresses. Torres also admitted to
growing marijuana and power theft, which resulted in Torres sustaining a misdemeanor
conviction.
Testimony of Defendant Marco Torres
Wheatland Drive
Torres purchased and moved into the Wheatland Drive property in February 2009
and opened a SMUD account. Several people stayed with Torres over the years,
including Josue Bautista, who lived there from 2010 through 2015, after which Bautista
1 Subsequent section references are to the Civil Code.
2
moved to the Buford Court address. Torres’s nephew, Jose Tiznado, stayed at Wheatland
Drive “[m]ore than a few times.” However, Jose never lived with Torres, and Torres did
not recall Jose’s wife Alexandra2 staying at Wheatland Drive.
At some point, Torres decided to grow marijuana. He installed electrical bypasses
at both the Wheatland and Buford Court properties to avoid being billed by SMUD for
the electricity he would use. He did not remember when he started growing marijuana at
Wheatland Drive, when he installed the electrical bypass, or how long he used it, but he
asserted that he did not use the electrical bypass for more than six months.
Torres testified that he never actually grew anything at Wheatland Drive. He
claimed that he only had four grow lamps in a room he built in the garage. He would
start growing “bab[y]” plants at Wheatland Drive and then transport them to Buford
Court. Torres denied growing marijuana in any room at Wheatland Drive other than the
room in the garage.
The Sacramento County Sheriff’s Department executed a search warrant at Buford
Court on February 20, 2018. Torres removed the electrical bypass at Wheatland Drive
that same day. The next day, February 21, 2018, the sheriff’s department executed a
search warrant at Wheatland Drive.
Torres acknowledged that, when the Sacramento County Sheriff’s Department
executed the search warrant, there was equipment for growing marijuana throughout the
Wheatland Drive property, including in the backyard and the master bedroom.
Photographs taken at Wheatland Drive showed grow trays, mini split air conditioners,
lights, a filter, and other items used in his marijuana grow operation. But he testified that
these items were from Buford Court; after the execution of the search warrant there, he
brought all of the equipment to Wheatland Drive.
2 Given the witnesses shared surname, we will refer to them at times by their first
names. No disrespect is intended.
3
Torres identified in a photograph a bedroom at Wheatland Drive that was empty
except for a ladder, some flooring on the floor, and a chair. He testified that patchwork
and paint on the walls and ceilings were simply from testing paint colors. He also
testified there was a hole in one bedroom wall because he “kick[ed] it by accident.” In
another bedroom ceiling, there was patchwork where there had been some holes.
Additional patchwork in a bedroom was from a leak. He testified he was remodeling the
house. Torres acknowledged that, in marijuana grow operations, holes are placed in
surfaces for ventilation, but denied that is what appeared in the photograph. Asked about
the fact that no beds appeared in any of the photographs, Torres testified that there was a
bed in one of the small rooms.
When asked why he installed an electrical bypass at Wheatland Drive if he was
only using four grow lights, Torres testified it was a mistake, and that he did not think
about what he was getting into. He also testified four grow lights required too much
power to plug into a wall outlet to be metered.
Buford Court
Torres began to lease the Buford Court property in 2015. He opened a SMUD
account, and the first bill was dated October 13, 2015. Initially, he sublet Buford Court to
Josue Bautista, during which time Torres did not grow marijuana or use an electrical
bypass at that location. After Bautista moved out in the summer of 2017, Torres began
using three rooms for a marijuana grow and began growing plants in June or July 2017.
There was a fourth grow room in the house, but Torres did not install another electrical
subpanel and instead paid for the power used in that room. Torres testified he operated
the marijuana grow for seven or eight months before he “got caught.”
Receipts produced at trial dated September 20, 2017, were for the purchase of
marijuana grow supplies. Torres testified they were receipts for supplies for the Buford
Court marijuana grow. On cross-examination, he acknowledged the receipts were from a
store in Lindsay, California. He testified that he shopped in Lindsay because he was
4
going camping and he figured, “might as well buy it here.” He thus agreed that he
bought $8,900 worth of marijuana grow supplies while he was going camping. Asked if
there were garden supply stores in Sacramento, he testified, “I guess so.”
Testimony of Alexandra Tiznado
Alexandra Tiznado was married to Jose Tiznado, Torres’s nephew. She was
familiar with the Wheatland Drive property. At some point between 2011 and 2012, she
stayed overnight roughly three days a week while Jose was temporarily living there. This
started around November 2011. Jose moved out at some point between May and July
2012.
Alexandra testified that, when she was staying at Wheatland Drive between
November 2011 and June 2012, she saw the property being utilized as a marijuana grow.
Although she could not recall exact dates, she estimated that she saw a full marijuana
grow in the master bedroom in early 2012. She saw grow lights hanging in the room,
plants, trays, and ballasts. There were at least five trays of plants in the master bedroom.
Before her overnight visits stopped, she believed the room across from the master
bedroom was also gradually converted into a marijuana grow.
Testimony of Mike Wolff
Mike Wolff was a revenue protection representative for SMUD. His role was to
discover, investigate, and stop power theft. Wolff investigated the suspicion of power
theft at both Wheatland Drive and Buford Court, reviewing voltage patterns as far back as
when the data was available, January 1, 2016. His analysis indicated power theft. Asked
if his analysis was consistent with Torres’s “story that both of those grows only started in
September, 2017,” Wolff responded: “I would say that blows that out of the water
because . . . both of these locations were clearly growing as early as” January 2016.
Wheatland Drive
Wolff performed an analysis of Wheatland Drive from January 1, 2016, through
January 24, 2016. His analysis indicated Torres was not paying for the electricity he was
5
using. Wolff ran this analysis for every few months going forward. The results were
consistent throughout the time period encompassed in Wolff’s investigation.
SMUD placed a distribution transformer monitor, which measures the electricity
provided from the transformer to the residence, in the transformer that provided power to
Wheatland Drive. SMUD would take daily readings from the device of the power
actually provided to the address, subtract the amount of electricity actually recorded on
the meter at the address, “and then you’re left with the unbilled energy amount.”
According to Wolff, “[W]e’re taking an average of these daily bypassed amounts, and
then that’s what we’re going to use to determine what we’re billing them for every single
day back to when . . . we determine that the grow started.” Based on 12 days of
monitoring from February 8, 2018, through February 19, 2018, on average, Wheatland
Drive used 277 kilowatt hours (kWh) per day more than what it was billed based on
metered usage. Wolff testified that 277 kWh per day was reasonable, and even on the
low end, for a marijuana grow in a house the size of Wheatland Drive.
The power theft at Wheatland Drive ended on February 20, 2018, at approximately
9:00 p.m., the day the Sacramento County Sheriff’s Department executed the search
warrant at Buford Court. The Sacramento County Sheriff’s Department executed a
search warrant at Wheatland Drive the next day. It appeared to Wolff, who was present at
the time, that all of the marijuana grow equipment “had been taken down in a hurry,”
shortly before law enforcement arrived. The property “no longer had lights hanging or a
bypass installed or marijuana plants in trays or anything . . . .” However, there were
marijuana grow items all around the house. There was new patchwork on the sheetrock,
and it appeared that the electrical bypass had been recently removed. There was also a lot
of equipment in the backyard, including grow trays, a blower, and grow lights.
Wolff did not think the explanation that the marijuana grow equipment came from
Buford Court made sense because “Buford [Court] had already had the search warrant
served the day before, and it was locked up, posted substandard. Nobody is coming back
6
to that location.” He further noted that the equipment was scattered throughout the house
rather than, for example, being stacked in the garage. Wolff testified that the four lamps
in the garage would draw a fraction of the unbilled electricity used at Wheatland Drive.
On a goldenrod form, the form he would prepare and send to SMUD billing, Wolff
directed billing to recalculate the bill for Wheatland Drive, adding an additional 277 kWh
per day beginning from the start date of service and extending to February 19, 2018.
Wolff noted that “we like to bill from inventory, because that’s the most accurate way that
we can see, because based on the equipment that they’re actually using and bypassing.”
However, given the state of the marijuana grow at Wheatland Drive when the search
warrant was executed, Wolff “had no other choice but to bill this one with the . . . daily
average bypass amount.”
Buford Court
Wolff performed amp readings in December 2017 and February 2018 at Buford
Court and confirmed power theft. Wolff testified that there was already a marijuana grow
at Buford Court as of January 1, 2016, which started before that date, where electricity
was not being paid for. Wolff opined that cultivation was ongoing as of January 1, 2016,
because “it’s half way through a grow cycle on the first . . . .” As with Wheatland Drive,
Wolff analyzed usage every couple of months, during which the marijuana grow and the
power theft were ongoing. The marijuana grow was still operating as of January 12,
2017, it paused on January 16, 2017, and it resumed around March 20, 2017.
A search warrant was executed at Buford Court on February 20, 2018. When
Wolff went into the property, he found that SMUD’s service wires in the wall leading to
the meter had been tampered with using insulation-piercing connectors. Based on his
observations, Wolff concluded that the marijuana grow had been going on for a long time.
Wolff prepared an inventory sheet of all of the bypassed electrical equipment at
Buford Court. He used the list of bypassed devices and equipment to calculate the
kilowatt hours of power that were not being paid for. The resulting 466 kWh per day
7
discrepancy was in line with marijuana grows in houses of a similar size. The diversion
dates on the goldenrod form for Buford Court were from September 30, 2015, the date
service commenced, through February 20, 2018, the day the search warrant was executed.
With regard to the receipts for marijuana grow supplies from the store in Lindsay,
Wolff testified that there was a disparity between the items on the receipts and the
supplies at Buford Court. Wolff also testified that the Lindsay store was very far from
Sacramento, beyond Fresno. Wolff testified there were many hydroponics stores in the
Sacramento area, and it is not clear why someone would travel to Lindsay to purchase
such supplies.
Testimony of Victoria Ricarte
Victoria Ricarte, a revenue analyst in the billing operations department at SMUD,
testified that her role included analyzing charges and fees billed in cases of power theft to
ensure billed amounts are correctly calculated. She prepared recalculations of bills for
Wheatland Drive and Buford Court.
Ricarte testified that when SMUD bills a power theft period, it bills from the
beginning of the period of power theft to when the power theft was caught. When billing
receives the goldenrod form, they first identify the diversion dates to see when the
diversion began and when it ended. Then they multiply the duration by the additional
kWh per day to be billed. This information is furnished by power theft investigators.
According to the goldenrod form, for Wheatland Drive, the kilowatt hours per day
previously underbilled was 277 kWh per day. For Buford Court, the unbilled amount was
466 kWh per day.
Ruling, Statement of Decision, and Judgment
The trial court ruled that SMUD met its burden of proof on its claims for power
theft, conversion, and breach of contract. The court found SMUD had sustained actual
damages in the amount of $160,372.77. On its claim for power theft, the court awarded
SMUD treble damages (§ 1882.2), increasing SMUD’s award to $481,118.31. On the
8
conversion cause of action, the court found by clear and convincing evidence that Torres
was guilty of malice and awarded SMUD punitive damages in the amount of
$320,745.54. (§ 3294.) Thus, on the conversion claim, combining the actual damages
and the punitive damages, the total award was also $481,118.31. The court specified that
the two matching awards reflected the same damages and should be deemed to overlap
rather than be added together. The judgment was in favor of SMUD and against Torres in
the amount of $481,118.31.
DISCUSSION
I
Issue Preclusion
Torres contends that the trial court already determined the duration of the power
theft in a restitution hearing in his criminal case. Therefore, collateral estoppel barred the
trial court from “redetermin[ing]” these time periods. SMUD responds that it was neither
a party nor in privity with a party to the prior restitution proceedings. We conclude that
issue preclusion did not bar the trial court from determining the duration of the power
theft.
“ ‘Issue preclusion,’ ” formerly referred to as “ ‘collateral estoppel,’ ” prevents
“ ‘relitigation of previously decided issues.’ ” (Samara v. Matar (2018) 5 Cal.5th 322,
326-327.) Issue preclusion “applies only ‘(1) after final adjudication (2) of an identical
issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against
one who was a party in the first suit or one in privity with that party.’ ” (Id. at p. 327.)
SMUD was not a party to Torres’s criminal prosecution. Thus, issue preclusion
could only apply if SMUD was in privity with the People, who conducted the restitution
proceeding. However, in his briefing, Torres does not argue privity or make any
argument as to why SMUD, which was not a party to the restitution proceeding, should
be bound by the determinations in that proceeding. For that matter, Torres does not cite
any authority to support his issue preclusion argument. (See Cal. Rules of Court, rule
9
8.204(a)(1)(B) [each brief must “support each point by argument and, if possible, by
citation of authority”].)
In any event, we conclude that none of the commonly articulated hallmarks of
privity appear to be present in SMUD’s relationship with the People in their prosecution
of the restitution proceeding. SMUD did not acquire “ ‘an interest in the subject matter
of litigation . . . after rendition of the judgment through or under one of the parties, as by
inheritance, succession or purchase.’ ” (Kerner v. Superior Court of Los Angeles County
(2012) 206 Cal.App.4th 84, 125.) SMUD and the People did not have “ ‘a mutual or
successive relationship to the same rights of property, or to such an identification in
interest . . . as to represent the same legal rights.’ ” (Ibid.) We could not say the
relationship between SMUD and the People was “ ‘ “sufficiently close” so as to justify
application of the doctrine of collateral estoppel.’ ” (Ibid.) Nor was there a “ ‘sharing of
“an identity or community of interest,” with “adequate representation” of that interest in
the [restitution proceeding], and circumstances such that [SMUD] “should reasonably
have expected to be bound” by the’ ” restitution proceeding. (Grande v. Eisenhower
Medical Center (2022) 13 Cal.5th 313, 326, quoting DKN Holdings LLC v. Faerber
(2015) 61 Cal.4th 813, 826.) We cannot conclude that SMUD had an interest so similar
to that of the People in conducting the restitution proceeding “ ‘that the [People] acted as
[SMUD’s] “ ‘ “virtual representative” ’ ” ’ ” in that proceeding. (Grande v. Eisenhower
Medical Center, supra, 13 Cal.5th at p. 326; see generally People v. Dehle (2008)
166 Cal.App.4th 1380, 1386 [restitution orders aim to compensate the victim, rehabilitate
the defendant, and deter the defendant and others from committing future offenses].)
Torres has not met his burden of establishing that the trial court erred in
concluding that issue preclusion did not apply. (See Del Real v. City of Riverside (2002)
95 Cal.App.4th 761, 766 [“It is the appellant’s burden to demonstrate the existence of
reversible error”].)
10
II
Substantial Evidence Supporting the Award of Actual Damages
Torres argues that the trial court’s award of damages as to each location was not
supported by the evidence, both as to when the power theft began and the amount of
damages sustained by SMUD. We do not agree.
A. Applicable Principles of Law
“A question of the proper measure of damages in a particular case is . . . an issue
of law subject to de novo review . . . .” (Switzer v. Wood (2019) 35 Cal.App.5th 116,
125.) “ ‘ “The amount of damages, on the other hand, is a fact question . . . [and] an
award of damages will not be disturbed if it is supported by substantial evidence.” ’ ”
(Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1324.) “Substantial evidence means
evidence of ponderable legal significance that is reasonable, credible, and of solid value.”
(Gillotti v. Stewart (2017) 11 Cal.App.5th 875, 899.) In considering a claim that
substantial evidence does not support the judgment, “ ‘we must consider all of the
evidence in the light most favorable to the prevailing party, giving it the benefit of every
reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶]
It is not our task to weigh conflicts and disputes in the evidence; that is the province of
the trier of fact. Our authority begins and ends with a determination as to whether, on the
entire record, there is any substantial evidence, contradicted or uncontradicted, in support
of the judgment.’ ” (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 595-596
(Regalado).)
“ ‘To recover in tort, the plaintiff must prove the fact of proximately caused injury
with reasonable certainty. [Citation.] When the fact of proximately caused injury is
proven sufficiently, the measure of damages to be awarded need only be shown with the
degree of certainty that the circumstances of the case permit.’ ” (Sacramento Municipal
Utility Dist. v. Kwan (2024) 101 Cal.App.5th 808, 815.) In a utility theft case such as
this, “there is an ongoing injury causing damages,” but “the period of injury may be
11
uncertain.” (Ibid.) Therefore “the contested damages issue is . . . often the extent of the
injury,” in other words, the duration of the injury and the amount of energy stolen over
that period of time. (Ibid., italics omitted.) A “defendant who has been found liable for
utility diversion should not benefit from the secrecy of his or her theft . . . .” (Id. at
p. 816 [the defendant should not benefit from his secrecy by applying an assumption that
power theft began at the date of discovery].) “It instead depends on the evidence of each
case to establish ‘the fact of proximately caused injury with reasonable certainty.’ ”
(Ibid.)
B. Wheatland Drive–Duration of Power Theft
It is undisputed that SMUD sustained injury as a result of Torres’s power theft. It
is also clear when Torres’s power theft ended, upon SMUD’s discovery of the power theft
and the execution of search warrants at the two addresses. The only contested issues are
when the power theft began at each location and the amount of damages to be assessed
for the power theft.
Torres argues that the trial court’s finding that he operated a large marijuana grow
using an electrical bypass at Wheatland Drive beginning in July 2012 was not supported
by the evidence for two reasons. First, he contends there was no evidence he began a
large marijuana grow operation when Jose Tiznado moved out because “he had more
room,” and the court’s determination was “pure speculation.”
Torres moved into Wheatland Drive and opened a SMUD account in February
2009. Alexandra Tiznado observed a marijuana grow at Wheatland Drive between
November 2011 and June 2012, during which time she spent several nights a week at that
house. According to Alexandra, there was a full marijuana grow in the master bedroom
in early 2012, including lights, plants, trays, ballasts, and at least five trays of plants.
Additionally, she believed the room across from the master bedroom was gradually
converted into a marijuana grow. Her overnight visits at Wheatland Drive stopped
between May and July 2012, when her husband Jose moved out of that house. Mike
12
Wolff’s analysis of Wheatland Drive indicated ongoing power theft as of January 1, 2016,
the farthest back he could review. The power theft ended on February 20, 2018.
Substantial evidence supports the trial court’s determination that Torres’s
marijuana grow operation at Wheatland Drive began in July 2012, after Jose Tiznado
moved out. The court’s determination is supported by Alexandra’s testimony about the
large marijuana grow operation existing in the master bedroom and expanding to another
room by the time Jose moved out in July 2012. Torres’s testimony that he did not grow
marijuana or divert power with an electrical bypass at Wheatland Drive for more than six
months gave rise to a conflict in the evidence for the trier of fact to resolve. The trial
court expressly found Alexandra Tiznado’s testimony more credible. The court’s
determination is also supported by Mike Wolff’s testimony that there was an ongoing
marijuana grow at Wheatland Drive as of January 1, 2016, contradicting Torres’s
testimony that he did not begin to grow marijuana at Wheatland Drive until summer or
fall 2017. It was for the trier of fact, not for us on appeal, to weigh these conflicts and
disputes in the evidence. (Regalado, supra, 3 Cal.App.5th at p. 596.)
Torres’s proffer of 2017 receipts for marijuana grow supplies from a store in
Lindsay, suggesting he did not begin to grow marijuana before 2017, does not undermine
our conclusion. The trial court observed that Torres’s assertion that “he bought
equipment 225 miles away, in Lindsay, for use in Sacramento seems unlikely.” In light of
the other evidence, the receipts do not establish that Torres did not begin to grow
marijuana until 2017. As stated, “ ‘we must consider all of the evidence in the light most
favorable to the prevailing party, giving it the benefit of every reasonable inference, and
resolving conflicts in support of the judgment,’ ” and “ ‘[w]e must accept as true all
evidence and all reasonable inferences from the evidence tending to establish the
correctness of the trial court’s findings and decision, resolving every conflict in favor of
the judgment.’ ” (Regalado, supra, 3 Cal.App.5th at pp. 595-596.)
13
Second, Torres argues there was no evidence to establish that he used an electrical
bypass beginning in July 2012. Torres is correct that Alexandra Tiznado testified that she
did not know whether there was an electrical bypass installed at Wheatland Drive.
However, Torres admitted to installing the electrical bypass at Wheatland Drive, although
he claims he did so no more than six months prior to discovery of his power theft in
2018. Mike Wolff identified power theft as early as January 2016. This was long before
Torres’s admitted use of the electrical bypass. Given this discrepancy, and its findings
that Torres’s testimony on this point was “unconvincing” and had been “discredited,” it
was reasonable for the trial court to infer that the power theft began with the installation
of an electrical bypass when Torres began the full marijuana grow in 2012.
Substantial evidence supported the trial court’s determination that SMUD
established with reasonable certainty that Torres’s full marijuana grow and power theft
had begun by July 2012.
C. Wheatland Drive–Amount of Damages
Torres further claims there was not sufficient evidence to establish the amount of
damages SMUD sustained as a result of his power theft at Wheatland Drive. He suggests
that taking the average amount stolen over a 12-day period and extrapolating the total
amount from that data did not amount to a reasonable certainty in the damages award.
Mike Wolff testified that SMUD placed a distribution transformer monitor, which
measures the electricity provided from the transformer to the residence, in the
transformer that provided power to Wheatland Drive. SMUD would take daily readings
from the device of the power actually provided to the address, subtract the electricity
recorded on the meter, “and then you’re left with the unbilled energy amount.”
According to Wolff, “[W]e’re taking an average of these daily bypassed amounts, and
then that’s what we’re going to use to determine what we’re billing them for every single
day back to when . . . we determine that the grow started.” Based on 12 days of
monitoring from February 8, 2018, through February 19, 2018, on average, Wheatland
14
Drive used 277 kWh per day more than what it was billed. Wolff testified that 277 kWh
per day was reasonable, and even on the low end, for a marijuana grow in a house the
size of Wheatland Drive.
As SMUD notes, it would be unreasonable, and, in fact, impossible, to require a
utility to establish the amount of power actually diverted for the entire duration of the
power theft. The utility cannot measure the power diverted before it discovers the
diversion. A “defendant who has been found liable for utility diversion should not benefit
from the secrecy of his or her theft . . . .” (Sacramento Municipal Utility Dist. v. Kwan,
supra, 101 Cal.App.5th at p. 816.) Torres has not cited to any authority, nor are we aware
of any, to establish that this method of calculating the energy stolen and the resulting
damages was insufficient.
Substantial evidence supports the conclusion that Mike Wolff’s testimony and the
methodology he employed yielded an average amount of electricity diverted with
reasonable certainty.
D. Buford Court–Duration of Power Theft
Torres maintains that there was no evidence to establish that his power theft at
Buford Court began on September 30, 2015, the day he commenced service.
Torres leased the Buford Court property in 2015, but he did not live at the
property. When Josue Bautista left the property in the summer of 2017, Torres began to
use four rooms for a marijuana grow. Torres testified he operated the marijuana grow for
seven or eight months until he “got caught” on February 20, 2018.
Mike Wolff testified that there was an ongoing marijuana grow at Buford Court
where electricity was not being paid for as of January 1, 2016, the farthest back he could
review. Wolff opined that the marijuana grow was ongoing as of January 1, 2016,
because “it’s half way through a grow cycle on the first . . . .”
We conclude the trial court reasonably could have inferred that the power theft
began when Torres commenced service on September 30, 2015, approximately three
15
months prior to January 1, 2016, by which time the power theft was already ongoing.
Mike Wolff’s testimony contradicted Torres’s position that power diversion began in the
summer of 2017. However, the trial court found Torres’s testimony not “particularly
credible.” “ ‘It is not our task to weigh conflicts and disputes in the evidence; that is the
province of the trier of fact.’ ” (Regalado, supra, 3 Cal.App.5th at p. 596.)
We conclude substantial evidence supports the trial court’s determination that
SMUD established with reasonable certainty that the power theft at Buford Court began
when Torres commenced service on September 30, 2015.
E. Buford Court–Amount of Damages
Torres argues that the damages award as to Buford Court was not supported by
substantial evidence because Mike Wolff’s calculations, based on the inventory he
prepared, assumed that all of the equipment inventoried was in use for the entire duration
of the power theft. Torres argues there was no evidence to establish that he used all of the
equipment found on February 20, 2018, at Buford Court from September 30, 2015,
through February 20, 2018.
Mike Wolff prepared an inventory sheet of all the equipment that used the
bypassed electrical circuit at Buford Court. He used that list to calculate the kilowatt
hours of power that were not being paid for. The resulting 466 kWh per day discrepancy
was in line with marijuana grows in houses of a similar size. Wolff testified, when
discussing using the average daily bypass method used at Wheatland Drive, that billing
from inventory is “the most accurate way that we can see, because [it’s] based on the
equipment that they’re actually using and bypassing.” Consistent with this testimony, in
rejecting a defendant’s contention that calculations supporting a restitution order were
speculative, another panel of this court relied on, among other things, a SMUD
investigator’s testimony that “inventorying the equipment hooked up to power is the most
accurate method for assessing power usage.” (People v. Phu (2009) 179 Cal.App.4th
16280, 285.) Torres has not cited any authority for the proposition that this method of
computing damages was insufficient, nor are we aware of any.
We conclude substantial evidence supports the trial court’s determination that
SMUD established the amount of damages at Buford Court with reasonable certainty.
III
Punitive Damages
Citing Doe v. Lee (2022) 79 Cal.App.5th 612, Torres argues that “an award of
punitive damages was not appropriate given no evidence was presented as to his net
worth.” SMUD responds that the punitive damages award was “functionally
superfluous” based on the identical treble damages award and therefore any error was
harmless. We conclude the punitive damages award was not supported by substantial
evidence and we therefore must vacate that award.
“In an action for the breach of an obligation not arising from contract, where it is
proven by clear and convincing evidence that the defendant has been guilty of
oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover
damages for the sake of example and by way of punishing the defendant.” (§ 3294, subd.
(a).) “ ‘Under California law, a punitive damages award must be based on three factors:
(1) the reprehensibility of the defendant’s conduct; (2) the amount of compensatory
damages awarded to or actual harm suffered by the plaintiff; and (3) the defendant’s
financial condition.’ ” (Behr v. Redmond (2011) 193 Cal.App.4th 517, 535; see Adams v.
Murakami (1991) 54 Cal.3d 105, 110; Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d
910, 928.) The defendant’s financial condition is relevant because “the function of
deterrence [citation], will not be served if the wealth of the defendant allows him to
absorb the award with little or no discomfort. [Citations.]” (Neal v. Farmers Ins.
Exchange, supra, 21 Cal.3d at p. 928.) It is the plaintiff’s burden to demonstrate the
defendant’s financial condition. (Adams v. Murakami, supra, 54 Cal.3d at p. 123; Doe v.
Lee, supra, 79 Cal.App.5th at p. 623.)
17
“ ‘Evidence of a defendant’s financial condition is a legal precondition to the
award of punitive damages.’ ” (Farmers & Merchants Trust Co. v. Vanetik (2019)
33 Cal.App.5th 638, 647; see Adams v. Murakami, supra, 54 Cal.3d at p. 109 [“an award
of punitive damages cannot be sustained on appeal unless the trial record contains
meaningful evidence of the defendant’s financial condition”].) On appeal, we “ ‘examine
the record to determine whether the challenged award rests upon substantial evidence.
[Citations.] If it does not, and if the plaintiffs had a full and fair opportunity to make the
requisite showing, the proper remedy is to reverse the award.’ ” (Farmers & Merchants
Trust Co. v. Vanetik, supra, 33 Cal.App.5th at pp. 647-648.)
SMUD argued in the trial court that it had presented meaningful evidence of
Torres’s financial condition, emphasizing that Torres was “gainfully employed,” worked
as a truck driver for years, and owned the Wheatland Drive property. SMUD also
presumed Torres profited from the marijuana grows. However, SMUD does not raise
these arguments on appeal, and thus we may deem them abandoned. (See Tiernan v.
Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not
raised on appeal may be deemed waived].)
SMUD did not present meaningful evidence concerning Torres’s financial
condition at trial despite having the opportunity to do so and has abandoned its arguments
in this court. As a result, the punitive damages award is not supported by substantial
evidence and we shall vacate that award. Where, as here, a punitive damage award is
vacated based on the insufficiency of the evidence, the plaintiff is not entitled to a retrial
of the issue. (See Doe v. Lee, supra, 79 Cal.App.5th at p. 623.)
DISPOSITION
The award of punitive damages is vacated. The judgment is otherwise affirmed.
SMUD shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)
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\s\ ,
Krause, J.
We concur:
\s\ ,
Mauro, Acting P. J.
\s\ ,
Mesiwala, J.
19