Barber v. Southern Cal. Edison Co.

Filed 5/27/22 Certified for Publication 6/24/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
LORI BARBER et al., B305585, B305587
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. Nos. YC066729,
BC497689)
v.
SOUTHERN CALIFORNIA
EDISON COMPANY,
Defendant and Respondent.
APPEAL from judgment of the Superior Court of Los Angeles
County, Amy D. Hogue, Judge (case No. YC066729); William F.
Highberger, Judge (case No. BC497689). Affirmed.
Stolpman Law Group, Thomas Stolpman; Law Office of
Valerie T. McGinty and Valerie T. McGinty for Plaintiffs and
Appellants.
Southern California Edison, Leon Bass, Brian A. Cardoza,
Carla M. Blanc; Munger Tolles & Olson, E. Martin Estrada, Mark
R. Yohalem, Jeremy A. Lawrence, Nicholas D. Fram, Ginger D.
Anders; Limnexus, Arnold Barba and Jane Kespradit for Defendant
and Respondent.
Thomas Barber, Lori Barber, and their two children,1
(collectively, the Barbers) appeal from a judgment of the superior
court in the Barbers’ lawsuit against Southern California Edison
Company (SCE) following summary judgment in SCE’s favor. The
Barbers previously lived on a property on Knob Hill Avenue in
Redondo Beach (the Barbers’ former home), which is located a few
doors away from one of SCE’s electricity substations, the Topaz
substation. The Barbers’ lawsuit alleged that electricity from the
substation caused them to experience shocks at various places on
their property, and sought recovery primarily for the emotional
distress they suffered as a result.
On appeal, the Barbers argue that the court (1) excluded
evidence that would have created a triable issue of fact as to
causation; (2) applied the wrong legal standard for causation by
analogizing the case to a toxic tort suit; and (3) erred in concluding
the doctrine of res ipsa loquitor did not establish causation. We
conclude that, under the applicable substantial factor causation
standard, the evidence presented on summary judgment
established the Barbers could not prove causation in fact. We
further conclude that the court correctly rejected res ipsa loquitor
as a means of establishing causation in this case. We need not
decide whether the court erred in excluding the evidence the
Barbers identify, because even considering that evidence, the record
does not create a triable issue of fact as to whether stray voltage
from the Topaz substation caused the Barbers’ claimed shocks.
Specifically, SCE offered evidence that stray voltage shocks require
certain conditions, including a certain level of voltage, and that
those conditions did not exist at the Barbers’ former home. None
1 Thomas and Lori Barber’s children are minors, but are
acting through their guardian ad litem, Lori Barber.
2
of the evidence the Barbers offered in opposing summary
judgment—including the evidence the Barbers argue the court
incorrectly excluded—contradicts or discredits SCE’s evidence on
these points, nor does it include any expert opinion that SCE’s
electricity caused the Barbers’ shocks. The court properly granted
SCE’s summary judgment motion on this basis, and we therefore
need not decide the Barbers’ additional arguments challenging
other aspects of the court’s summary judgment order.
Accordingly, we affirm.
FACTS AND PROCEEDINGS BELOW
A. Fundamentals of Electrical Distribution Systems
and Electricity
Analysis of the facts and issues in this case requires a basic
understanding of electrical distribution systems, much of which
is provided in a previous opinion of Division Four of this court,
Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th
123 (Wilson I), which involved allegations of stray voltage at
another Knobb Hill Avenue property.
“Electricity is produced at a generating plant. Because
it is not economical to send electricity over long distances at low
voltages, the electricity produced at the plant is stepped up through
transformers to a very high voltage before it is sent out over
transmission lines. A substation, such as Edison’s Topaz substation
at issue in this case, receives the high voltage electricity from
the generating plant and steps it down through transformers to
4,000 volts. It then sends the electricity over distribution lines out
to the neighborhood power poles, where an additional transformer
steps down the voltage to 240/120 volts before delivering the
electricity to homes or businesses.
3
“In order for electricity to flow, there must be a complete
circuit. In other words, when electricity is sent out from a
transformer to a ‘load’ (i.e., something that is using electricity,
such as a light or appliance), it must have a return path. Typically,
electricity is sent over one conductor (wire), called the ‘hot,’ and
returns on another conductor called the ‘neutral.’ The flow of
electricity is referred to as ‘current’ and is measured in amperes
(or amps) [or milliamps (mA)]; voltage is the pressure that drives
the current. The amount of current depends in part upon the
amount of resistance in the circuit.
“For safety reasons, electrical systems usually are grounded.
That means that at various points in the system, including at the
substation, a connection is made from the neutral to the ground,
i.e., the earth.” (Wilson I, supra, 234 Cal.App.4th at pp. 130−131,
fn. omitted.) This type of distribution system—the kind used at the
Topaz substation at issue in this case—is called a multigrounded
neutral system (MGN). It is undisputed that MGNs are used in
over 90 percent of the distribution circuits in the United States,
and that they have been in use for over 100 years. “[T]he [Public
Utilities Commission (PUC)] expressly requires that electrical
distribution systems be grounded.” (Id. at p. 149.) This is
“[b]ecause the earth is conductive” so a system being grounded
“can provide a return path for the flow of electricity. Therefore,
if, for example, an energized wire fell to the ground from the
distribution lines, the earth would provide a path for the current
to return to the substation, where a protective device would break
the circuit.” (Id. at p. 131.)
An “unavoidable byproduct of grounding an electrical system”
is that small amounts of electricity will go into the ground.
(Wilson I, supra, 234 Cal.App.4th at p. 129.) “In [an MGN], there
will always be some current flowing back to the substation through
4
the earth. This is referred to as neutral-to-earth voltage [(NEV)]
and it cannot be entirely eliminated. NEV is one cause of ‘stray
voltage.’ ” (Id. at p. 131.) “Stray voltage” is a technical term
defined by the Institute of Electrical and Electronics Engineers
(IEEE), the preeminent standards-setting body in the field. It is
defined as “voltage of 10 volts or less appearing on objects that
are not part of an electrical system, that can be simultaneously
contacted by members of the general public.” (Ibid.) “Stray voltage
also can be caused by wiring faults (i.e., a short circuit in which
an energized conductor makes contact with a grounded surface)
or corrosion of a neutral conductor.” (Id. at p. 131, fn. 2.) “Metal
objects, such as water pipes or gas lines, that are buried in or
connected to the earth will conduct electricity, so if a person in a
home touched a water pipe that was energized due to NEV while
also touching the earth or another conductor at a different voltage,
a circuit would be completed and current would run through that
person’s body. This ‘touch potential’ can be eliminated by replacing
metal pipes with plastic pipes or installing isolators (such as a
short section of plastic pipe) to stop the flow of electricity onto
metal fixtures, or by connecting (or ‘bonding’) the two conductors
to equalize the voltage between the two.” (Id. at p. 131.)
“The physiological effects of current flowing through a
person’s body depends upon the amount of the current. According
to a leading reference, a [person] who encounters a current of
0.3 milliamps (mA) would not feel anything. At 0.7mA, [a person]
would feel a slight tingling; that typically is the perception
threshold. At 1.2mA, [a person] would feel a shock, but it would not
be painful and muscular control would not be lost.” (Wilson I,
supra, 234 Cal.App.4th at pp. 131−132.)
5
B. Wilson Case Regarding Stray Voltage in the
Knob Hill Neighborhood
The Wilson case provides an example of circumstances
in which stray voltage can have the kind of “touch potential”
described above and cause sensations or other effects in a person.
(Wilson I, supra, 234 Cal.App.4th at p. 131.) The plaintiff in that
case, Simona Wilson, lived next door to the Topaz substation on
Knobb Hill Avenue near the Barbers’ former home. (Id. at p. 129.)
SCE’s testing confirmed there were low but perceptible voltage
levels in the shower in Wilson’s home, and SCE admitted this was
stray voltage from NEV generated by the Topaz substation. (Id. at
p. 137.) Indeed, the evidence presented at trial in the Wilson
case reflected extensive and partially successful efforts by SCE
to address the stray voltage issue at Wilson’s home for years
before she moved into the property. SCE “had eliminated the
touch potential in [Wilson’s] house in 2005, inasmuch as there
were no reports of shocks from that time until Wilson remodeled
her bathroom in 2011.” (Id. at p. 156.) After the bathroom was
remodeled, Wilson began experiencing a “ ‘tingling sensation’ ”
in her shower when, while showering, she simultaneously touched
the metal shower pipe with her hand and the metal drain with
her foot. (Id. at pp. 136−137.) During the remodel, the metal
drain had been connected to a metal pipe that had contact with the
earth without installing a plastic isolator to break the conductive
connection with the earth; the shower head was not connected to
the earth and was at a different voltage. (Ibid.)
Wilson’s case thus involved the circumstances under which
a person may experience a tingling sensation or a shock as a result
of stray voltage. Given this, and the testing confirming stray
voltage on the property attributable to SCE, there was “no dispute”
that stray current from the Topaz substation had caused the shocks
6
Wilson felt. (Wilson v. Southern California Edison Co. (2018) 21
Cal.App.5th 786, 805 (Wilson II); ibid. [“there is no dispute that
there is stray voltage affecting her entire property” and “no dispute
that the stray voltage has, at times, been perceptible, causing a
tingling sensation or a shock”].) SCE “explained to Wilson . . . what
needed to be done to eliminate the touch potential, and offered to
pay for the installation of plastic isolators” (Wilson I, supra, 234
Cal.App.4th at p. 156), which would “stop the flow of electricity
onto metal fixtures” and thereby address the issue. (Id. at p. 131.)
“Wilson, however, refused [SCE]’s offer, insisting that [SCE] had
to eliminate all stray voltage on her property.” (Id. at p. 156.)
Wilson sued SCE (Wilson I, supra, 234 Cal.App,4th at p. 139),
and a jury initially found in her favor on her intentional infliction
of emotional distress (IIED), negligence, nuisance, and punitive
damages claims. (Id. at pp. 139−140.) The court reversed, directing
the trial court to enter judgment for SCE on all but the nuisance
claim, on which the court ordered a new trial. (Id. at p. 165.)
As to the negligence claim, the court concluded that, “[g]iven the
undisputed evidence that stray voltage is an unavoidable byproduct
of grounding, which is required by the PUC, it cannot be the case
that [SCE] breached a duty owed to Wilson by failing to eliminate
all stray voltage at Wilson’s house, whether perceived or not.” (Id.
at p. 155.) “Once [Wilson] reported the problem to [SCE],” however,
“[SCE] owed her a duty to eliminate the touch potential.” (Id. at
p. 156.)
Following remand, another jury found for Wilson on her
nuisance claim, but the court reversed that verdict as based
on irrelevant evidence. (Wilson II, supra, 21 Cal.App.5th at
pp. 805−809.) Specifically, the court held that the jury had been
permitted to consider evidence of alleged stray voltage at properties
other than Wilson’s as well as incidents that occurred at Wilson’s
7
house before she lived there. (Ibid.) The court concluded that
such evidence was irrelevant to whether SCE had interfered with
Wilson’s use and enjoyment of her property. (Ibid.)
C. The Barbers’ and Other Knobb Hill Avenue
Residents’ Lawsuits Regarding Stray Voltage
Until 1994, SCE owned the Barbers’ former home, which
is near the home at issue in Wilson. The family who purchased it
from SCE in 1994 lived there until 2010 and never complained to
SCE about feeling shocks or tingling sensations while they lived
there. The Barbers moved into the property in May 2010.
In October 2011, a local newspaper published an article
about the Wilson case. Later that month, Lori Barber called
SCE and asked that SCE inspect her property. SCE took stray
voltage measurements and found no perceptible stray voltage
at the property. The record does not include anything suggesting
that, at any time prior to filing the instant lawsuit, the Barbers
complained or reported to SCE that they felt electric shocks or
tingling sensations at the property. The Barbers did call SCE
about other issues, however, such as “sparking on the overhead
power lines” and a buzzing noise outside the house. The Barbers
moved out of the property in November 2011.
In 2012, the Barbers, along with 98 others residents
and former residents of Knobb Hill Avenue, sued SCE in two
nearly identical complaints that were designated complex and
consolidated for pretrial purposes. The Barbers’ operative
complaint alleged causes of action for IIED, nuisance, fraud,
negligent misrepresentation, battery, assault, trespass, and inverse
condemnation. The Barbers claimed damages related to annoyance
8
and emotional distress related to shocks, personal injuries,2 reduced
property value, costs of moving, and minor property damage.
In May 2018, the trial court selected four households from the
consolidated cases as bellwether plaintiffs, including the Barbers.
D. Testimony Regarding the Barbers’ Claimed
Injuries
During the discovery phase of the proceedings, the Barbers
identified the conditions under which they experienced the
shocks. Thomas Barber testified at his deposition to experiencing
“consistent” “shocks” and “tingling” “all over the house.” “[A]t
the mailbox,” he “repeatedly” experienced “a shock or tingling”
that caused “[e]nough pain” to make him pull his “hand off of it.”
He also experienced shocks in the kitchen “frequently enough
to remember,” but could not identify where in the kitchen these
occurred, or what objects, if any, he was touching at the time.
He also claimed to have experienced shocks in the hallway and on
the patio area, but could not recall how frequently or any further
details about them.
Lori Barber experienced electric shocks “quite a few times,”
“maybe 15 to 20” times, with “more than half ” of those occurring
“outside of the home”: “The main place was [the] mailbox.” She
also testified that “one day” she and Thomas Barber were “sitting
on the couch” and he told her that he “ke[pt] getting shocked.”
2 The Barbers have since withdrawn “claims of personal
injury with regard to each and every cause of action” and agreed
that they would be forever “precluded from offering evidence of any
kind, including expert testimony, concerning or relating to any past,
current, or potential future physical harm.”
9
E. Key Expert Evidence and the Court’s Sargon3
Order
After the close of fact discovery, the parties exchanged
expert reports and conducted expert depositions. Two of these
experts are the focus of the parties’ arguments on appeal: SCE’s
stray voltage expert John Loud, and the Barbers’ electrical expert
Jeffrey Drummond, who replaced the Barbers’ original electrical
expert, Donald Zipse.
1. Opinions of John Loud (SCE’s Stray
Voltage Expert)
As set forth above, SCE acknowledged (as it must) that the
nature of an MGN system causes some amount of grounded current
to “inevitably” go into the ground near a substation like Topaz.
SCE’s stray voltage expert John Loud thus did not dispute that
there may be some stray voltage in or near that property. Rather,
he concluded based on the testing of the Barbers’ former home that
“[t]here is nothing unusual or materially different about the levels
of stray voltage at this property compared with NEV associated
with [MGN] residential distribution systems across the United
States of America” and that “[a]ll of the measurements at this
location are consistent with normal and ubiquitous stray voltage,
including NEV, and there is no indication of any electrical fault
causing an elevated contact voltage.”
In reaching this opinion, Loud took almost 35,000 individual
measurements of the voltage present at various locations on the
property where a person might be able to touch two conductive
surfaces at the same time, including places where the Barbers had
reported feeling shocks. He “us[ed] a voltmeter to find the highest
3 Sargon Enterprises v. University of Southern California
(2012) 55 Cal.4th 747 (Sargon).
10
voltage locations,” and “[o]nce the highest voltage locations were
found, they were used for the long-term recording.” Loud found
“[n]o perceptible levels of stray voltage” at “the reported points of
contact.” Mr. Loud’s investigation methodology comported
with “IEEE standard 1695,” subtitled the “IEEE Guide to
Understanding, Diagnosing, and Mitigating Stray and Contact
Voltage” (boldface omitted), which the parties’ experts agreed is
the recognized industry standard for stray voltage investigations.
IEEE standard 1695 calls for testing at locations where a human
might be in contact with two conductors simultaneously and using
a resistor to mimic human body impedance.
Loud’s testing showed “[s]ome level” of “stray voltage” even
“with the home power shut off”—a so-called dark-house test—
and he acknowledged that one of the “causes” of the stray voltage
was the “operation of the utility distribution system.” This stray
voltage was not at a level sufficient to cause perceptible shock or
cause any harm, however—even assuming the correctly conductive
conditions existed. Specifically, the highest voltage measurement
at the Barbers’ former home was 0.75VAC. Although the minimum
shock hazard voltages vary depending on the reference source cited,
none reflected in the record are below 30VAC for dry hand contact
and 15VAC for wet hand contact (which is not alleged to have
occurred in connection with the Barbers’ shocks). Similarly, “the
highest level of current the [Barbers] could have contacted (if at all)
was ~0.3mA (with a 2,000Ω resistor), which is significantly below
a variety of safety thresholds and studies addressing physiological
injury due to current conduction,” as Division Four of this court has
previously recognized.4
4 The human body resistor amount employed by Loud for
this calculation is “conservative.” The milliamp measurements
11
Loud also opined that, even if stray voltage were present
at higher levels, the conditions necessary for stray voltage to create
a perceptible tingling or shock were not present at the mailbox,
door handles, or kitchen fixtures. Plaintiffs had a freestanding
mailbox connected to the ground, and the only other contact point
(the ground) would be at the same voltage as the mailbox and thus
unable to produce a stray voltage shock. Wooden doors “do not
conduct stray voltage and are therefore not a possible stray voltage
source,” so door handles affixed to them could not cause a stray
voltage shock. And the “kitchen floor is an insulator and eliminates
all possible current conduction into it,” excluding stray voltage as
a possible cause of shocks from kitchen fixtures.
According to Loud, there are other sources besides NEV
that can cause someone to experience perceptible electricity. Faulty
wiring in a home’s distribution system or malfunctioning appliances
are two potential sources. The most common potential source is
static electricity, which has nothing to do with MGNs, NEV, or
electrical wiring. Static shocks can result from countless everyday
activities, such as removing a synthetic garment, petting a cat, or
dragging one’s feet on carpet. These activities can build up a static
charge, which may then be discharged when a person touches a
single conductive or grounded surface. Loud opined that the
taken by Loud are well below not only the minimum mA shock
perception threshholds referenced in Wilson I, but also the
minimum shock and safety threshholds in the current record.
For example, “[t]he UL safety standard for setting the GFCI trip
curve to protect humans against contact with 120VAC allows 6mA
for approximately 6 seconds. [¶] . . . The UL threshold (UL 101)
for the maximum amount of current that may be conducted into
persons by appliances is 0.5mA for portable appliances and 0.75mA
for stationary appliances.”
12
Barbers’ reported shocks “were more likely than not” caused by
“static electricity discharges.”
2. Opinions of Zipse and Drummond (the
Barbers’ Electrical Experts)
Pursuant to Sargon, supra, 55 Cal.4th 747, the court excluded
the testimony of the Barbers’ initial electrical expert Donald Zipse,
“to the extent it [was] offered to prove causation of harm to persons
or to personal property.” (See id. at pp. 771–772 [“the trial court
acts as a gatekeeper to exclude expert opinion testimony that
is (1) based on matter of a type on which an expert may not
reasonably rely, (2) based on reasons unsupported by the material
on which the expert relies, or (3) speculative”].)
The Barbers do not challenge this ruling on appeal. The
court’s ruling regarding Zipse is, however, relevant to arguments
on appeal regarding the testimony of the Barbers’ replacement
electrical expert. We therefore briefly summarize the court’s ruling
regarding Zipse.
Zipse reported proposing a new law of physics in
approximately 2001, pursuant to which all MGNs are inherently
unsafe and “must be eliminated,” because NEV in the ground is
always an unsafe condition. This concept, which he referred to
as “Zipse’s law,” was the primary basis for his causation opinions
regarding the Barbers specifically. After a multi-day hearing, the
court issued a detailed written ruling excluding Zipse’s causation
opinions, in which it explained that “Zipse’s testimony only
established a possibility that SCE’s grounded current may have
been conducted through the soil in the Knob Hill neighborhood” to
the Barbers’ house. Because Zipse did not analyze the soil, did not
identify any conductive pathway on which current might
have traveled, did not investigate the conditions of contact, and
did not measure at contact points inside the Barbers’ house, “his
13
opinion that SCE’s electricity was the source of [the Barbers’]
shocks or property damage [was] unsupported by evidence of the
probable pathway or probable dose,” and he could not say to a
reasonable degree of engineering certainty that SCE caused the
Barbers’ shocks. Zipse’s “analytical gaps” were “too great to allow
presentation to the jury.”
The Barbers moved to replace Zipse with a new electrical
expert, Jeffrey Drummond. The court granted the motion, but
given the proximity to dispositive motions, limited the scope of the
testimony Drummond would be permitted to offer to the opinions
offered by Zipse.
Like Zipse, Drummond had never visited the Barbers’
neighborhood, never conducted any testing of the Barbers’ former
home or the surrounding area, including the Topaz substation,
and never spoke with the Barbers or any of the other bellwether
plaintiffs about their experiences there. He likewise did not review
any of the schematics for the Topaz substation. Also like Zipse,
Drummond did not study or determine whether there was any
conductive pathway that would enable NEV to travel from SCE’s
distribution systems into the Barbers’ former home.
Although Drummond did not expressly subscribe to Zipse’s
law as a law of physics, he testified at his deposition that he shared
Zipse’s view that “all [MGN] electrical systems must be eliminated,”
“all manmade neutral return current must be kept out of the earth,”
and “all [MGN] electrical systems [are] deficient for this reason.”5
Drummond also more specifically opined that the Topaz
substation is an MGN design that utilizes a “common neutral
at the pole transformers,” which renders the homes “a part of
5 Drummond was aware of no one in the engineering or
scientific communities holding that belief beyond Zipse, Drummond
himself, and Drummond’s business partner.
14
the grounding system for the Topaz substation.” Specifically, the
Topaz substation “utilizes the fixtures attached” to the surrounding
homes, including the Barbers’ former home, to “return neutral
currents to the substation.” These fixtures include the home’s
“grounding rod, water pipes, sewer pipes, natural gas pipes,” and
“the foundations of the properties, which are mainly composed of
concrete,” a “conductive” material. Because a “concrete foundation
is electrically continuous with the surrounding soil,” “voltages that
are present outside will be continuous in the foundations” of the
surrounding houses, including the Barbers’ former home.
On this basis, Drummond offered opinions potentially
relevant to causation. Specifically, he opined that “there is normal
neutral return currents from [the] Topaz [substation] flowing
through the [p]laintiffs’ properties” and “into the [p]laintiff [ s ’ ]
homes through the service drop” and that these “increase[d] the
risk of electric shocks to people” in the Knobb Hill neighborhood,
including the Barbers at the time they lived there. In his report,
Drummond opined that “at least some of the shocks described in
testimony [of bellwether plaintiffs] were caused” by stray voltage
from such NEV reaching their properties. At his deposition,
however, Drummond clarified that he had not actually formed an
opinion as to whether any of the shocks felt by any of the Barbers
were caused by NEV from SCE.6 Moreover, the view stated in
6“Q: What about the Barber household? Did you form an
opinion as to whether any of the electricity they experienced came
from stray voltage or not?
“A: I don’t recall that one specifically right now.
“Q: Well, certainly it’s not in your report; right?
“A: Yeah.
15
his report that “at least some” of the shocks reported by bellwether
plaintiffs were from SCE’s NEV was based on his general views
about the risks of NEV and the fact that one plaintiff ’s description
of what she experienced was consistent with stray current, rather
than with static electricity. Specifically Drummond opined that
“in testimony, Sue Ann Calhoun[, a bellwether plaintiff who
lived at a different house than the Barbers on Knob Hill Avenue]
clearly describes a shock as [a] ‘tingling feeling . . . like someone
is strumming on your hands’ that lasted ‘maybe for two seconds,
three seconds, the actual shock of it.’ Stray current shocks are
alternating current (AC) and create tingling sensations that
can persist, in contrast to static electricity shocks are nearly
instantaneous and cause acute pain and an audible and visible
zap.” Drummond acknowledged at his deposition that he couldn’t
“rely simply on . . . Calhoun’s summary of her experiences to
determine whether or not what she experienced was stray voltage”
and that “some of her descriptions don’t make sense” and “are
completely inconsistent with the way electricity operates.”
Finally, Drummond opined that “[t]he nature of the reported
sensations by” the Barbers “are consistent with stray voltage rather
than a static shock,” a possible source identified by Loud as the
most likely, because “[a] static shock is over in a flash as a result
of near instantaneous discharge, [whereas] a prolonged two to
“Q: So you didn’t write anything about the Barbers, whether
you believe it’s probable that they experienced stray voltage; right?
“A: That’s true. [¶] . . . [¶]
“Q: Do you have any other examples from any other
household [besides the Calhouns] of someone experiencing
electricity in a way that you believe it’s more likely than not it
was stray voltage?
“A: No.”
16
three second period suggests stray voltage.” “Stray current shocks
are alternating current (AC) and create tingling sensations that can
persist, in contrast to static electricity shocks which . . . may cause
a very brief sensation and an audible and visible zap.”
F. Summary Judgment
SCE moved for summary judgment on all of the Barbers’
causes of action and punitive damages request. SCE’s primary
argument was that the Barbers could not prove that electricity from
SCE’s system caused the reported shocks. SCE relied on the Loud’s
voltage readings at reported contact points in the Barbers’ house,
combined with his explanation of the need for certain conditions
and levels of electricity in order for NEV to cause perceptible
sensations.7 The Barbers did not object to SCE’s evidence. In
opposition, the Barbers submitted a declaration from Drummond,
which contained the opinions outlined above, and which the
Barbers argued created a triable issue of fact as to the cause of
the Barbers’ reported shocks. The Barbers also supported their
opposition to summary judgment with an excerpt from trial in
the Wilson case containing testimony from two witnesses, William
Perry and Michael Kellers. As described in more detail below, the
court sustained SCE’s objections to Drummond’s opinions and the
Wilson transcript and granted summary judgment in SCE’s favor
on all claims.
1. Exclusion of Drummond’s Opinions
7SCE also relied on B. Don Russell’s expert testimony
demonstrating that SCE’s system was properly designed and well
maintained. This testimony does not bear on the issues on appeal,
however, so we do not discuss it further or summarize it in the
background section above.
17
SCE objected to numerous aspects of Drummond’s
declaration. The court sustained SCE’s objections on the basis
that Drummond’s declaration both went beyond Zipse’s opinions
and was itself “inadmissible under Sargon,” because Drummond’s
opinions “rest[ed] on assumptions and speculation rather than
evidence or scientific analysis.” The court explained that, because
Drummond had not inspected the Barbers’ home to determine
whether the conditions necessary for NEV to cause the Barbers’
reported shocks actually existed, Drummond had no basis to opine
that NEV caused the shocks the Barbers complained of feeling
in and around their home. Specifically, the court noted that no
evidence supported that a conductive pathway from the Topaz
substation to the Barbers’ home existed, and/or that the requisite
level of voltage at contact points was present.
2. Exclusion of Wilson Transcript Containing
Kellers’ and Perry’s Testimony
Michael Kellers is a former SCE employee and a former
resident of the Knob Hill Avenue neighborhood who in 2008 lived
near the Topaz station. At the Wilson trial, he did not offer an
expert opinion and his testimony was not about the Barbers’ former
home. Rather, Kellers testified that in “1983 or 1984” he “first
became aware that stray electrical currents are emitted from [the]
Topaz [s]ubstation and affect the adjacent residents” and “this
voltage problem” at the Topaz substation has “been known for
quite some time.” Kellers “knew about the problem because” two
neighbors on Knob Hill Avenue asked him to “come over and take
a look” because they were “getting some shocks.” Kellers further
testified that “managers at [SCE] were aware of it” and the “vice
president of power delivery,” “Dale Schul,” “knew about these
incidences.”
18
William Perry is a former employee of Southern California
Gas Company (the Gas Company). He testified at the Wilson
trial as a person most qualified for the Gas Company about voltage
on a gas line. This was “not an expert opinion.” He testified
that, while working as a district operations manager at the Gas
Company, he became aware of “a stray voltage problem affecting
the residents on [Knob Hill Avenue].” The street was “one of the
areas of [Perry’s] responsibility” and “part of [Perry’s] job” was to
“deal with” “issues that can arise with electricity and gas lines.”
Perry testified to having received “reports of voltage getting onto
the gas lines of . . . homes and facilities on Knob Hill.” As Perry
explained, the voltage was “sporadic” and “[would] go up and down
to some degree, . . . things change when moisture happens,” and
“the high voltages that really got [their] attention” was after “a
period of several days of rain.” In 2011 or 2012, the Gas Company
“reached out to [SCE] and said we need to find a solution to the
stray voltage problem.” Perry further offered that the stray voltage
was caused by the Topaz substation and could not be a “naturally
occurring condition[ ]” because “it’s alternating current” and
“[a]lternating current doesn’t occur naturally.”
SCE objected to this prior testimony as hearsay, irrelevant,
lacking foundation, improper lay opinion, and unfairly prejudicial.
The court sustained the objections.
19
3. Court’s Ruling on Summary Judgment
In a lengthy written order, the court explained that the
opinions of expert Loud met SCE’s initial summary judgment
burden of showing the Barbers could not prove their reported
shocks were caused by stray voltage from SCE, and that the
Barbers had not offered any admissible evidence to shift the
burden back to SCE. Accordingly, the court granted summary
judgment in SCE’s favor on all claims for lack of causation.
The court also held that plaintiffs lacked admissible evidence
on other elements of their claims. As to the negligence claim,
the court relied on Wilson I and ruled that no duty arose on SCE’s
part to mitigate stray voltage at the Barbers’ house because “there
is no evidence the Barber[s] . . . reported” feeling shocks to SCE.
As to the IIED and battery claims, the court ruled that summary
judgment was proper because there was no triable issue of fact
regarding SCE’s conduct being intentional. Finally, the court ruled
there was no triable issue as to whether any SCE officer, director or
managing agent acted with oppression, fraud or malice, warranting
summary judgment for SCE on the issue of punitive damages as
well.
Based on the court’s summary judgment ruling, judgment
was entered in SCE’s favor on all claims. The Barbers timely
appealed.8
8The court granted SCE summary judgment as to the three
bellwether households from the consolidated action, Richmond et al.
v. Southern California Edison Co. (Super. Ct. L.A. County, 2020,
BC497689) as well, and those plaintiffs also appealed. Since that
appeal was filed, however, all the Richmond plaintiffs—both the
three bellwether households that had appealed and the remaining
17 non-bellwether households—have dismissed their cases.
20
DISCUSSION
On appeal, the Barbers challenge the court’s rulings on
summary judgment, as well as its rulings excluding portions of
Drummond’s testimony and the 10 pages of transcripts from the
Wilson case containing Kellers’ and Perry’s testimony. We review
summary judgment rulings de novo, and in so doing “liberally”
construe “the evidence in support of the party opposing summary
judgment.”9 (Lyle v. Warner Brothers Television Productions (2006)
38 Cal.4th 264, 274.)
As to the court’s summary judgment rulings, the Barbers
first argue that the court erred in concluding there was no triable
issue of fact regarding whether stray voltage attributable to SCE
caused the Barbers’ shocks. The Barbers contend the court applied
the wrong legal standard in assessing this issue, and that SCE
did not meet its burden under the correct legal standard. We
disagree with both arguments, for reasons we explain below. Even
if we consider the excluded Wilson transcripts and the excluded
Drummond opinions, we nevertheless conclude that there is no
triable issue of fact as to causation. We thus need not review
the correctness of the rulings excluding this evidence. Nor do
we need to reach the Barbers’ challenges to other aspects of the
court’s summary judgment ruling, as the lack of a triable issue on
causation precludes any cause of action from surviving summary
judgment.
9 The parties disagree on the applicable standard of review
for evidentiary rulings in the context of summary judgment, but we
need not reach this issue, for reasons set forth below.
21
A. There Is No Triable Issue As to Causation,
Even If We Consider Drummond’s Excluded
Opinions and the Excluded Excerpts of the
Wilson Transcripts
In order to prevail on a motion for summary judgment where,
as here, the standard of proof at trial is a preponderance of the
evidence, a defendant “must present evidence that would require
a reasonable trier of fact not to find an[ ] underlying material fact
[alleged by plaintiff] more likely than not”—that is, evidence that
would prevent a finding of that material fact. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 851.) The “moving party
must satisfy [this] initial burden before the opposing party must
controvert anything.” (Y.K.A. Industries, Inc. v. Redevelopment
Agency of City of San Jose (2009) 174 Cal.App.4th 339, 353 (Y.K.A.
Industries), italics omitted.) Accordingly, “ ‘a plaintiff resisting
a motion for summary judgment bears no burden to establish any
element of his or her case unless and until the defendant presents
evidence either affirmatively negating that element (proving its
absence in fact), or affirmatively showing that the plaintiff does not
possess and cannot acquire evidence to prove its existence.’ ” (Id. at
pp. 353−354.)
SCE moved for summary judgment in part based on
its argument that, on the evidence in the record, the Barbers
could not prove that stray voltage from the Topaz substation
caused the Barbers’ shocks. To support this argument, SCE
offered uncontested expert evidence that, in order for stray voltage
to cause perceptible shocks in a human, a certain level of voltage
is necessary, and certain conditions must be present. SCE also
offered unchallenged and uncontradicted expert opinion that,
at no location in the Barbers’ former home were voltage levels
anywhere near the minimum level required for perceptible shock,
22
nor did other conditions exist that are necessary for the Barbers
to have experienced shocks at the places the Barbers reported
experiencing them. For example, SCE’s expert opined that none
of these places contained two conductive points someone could have
simultaneously touched that were charged with disparate voltages
of NEV from the Topaz substation.10
On a summary judgment motion, “[i]f the evidence is in
conflict, the factual issues must be resolved by trial.” (Binder v.
Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) But here, the
evidence the Barbers offered in opposing summary judgment does
not conflict with the evidence SCE offered establishing a lack of
causation. This is the case even if we consider all of Drummond’s
proffered opinions and the excerpted prior testimony of Kellers and
Perry, and even construing all of this evidence in the light most
favorable to the Barbers. First, Drummond made clear he was
offering no opinions as to whether NEV from SCE’s system had
caused the Barbers’ shocks (or, for that matter, the shocks of any
other plaintiff in this litigation). Nor, of course, can the testimony
of percipient witnesses (Kellers and Perry) regarding former
residents of Knobb Hill Avenue other than the Barbers regarding
things they experienced in homes other than the Barbers’ former
home speak to this point. Second, neither Drummond nor any other
expert witness disputes that the laws of physics require certain
conditions, including a certain level of voltage, in order for NEV to
cause a perceptible shock in a human. Similarly, neither
10 Under the Barbers’ theory of causation, both contact points
would presumably be charged by NEV from the Topaz substation.
It is unclear from the information in the record, however, whether
two contact points must derive their voltage from the same
electricity source in order for a person touching them to experience
a perceptible shock.
23
Drummond nor any other expert witness challenges Loud’s
measurements of the voltage levels in the Barbers’ former home,
or his assessment of other conditions in the home. Thus, even
accepting Drummond’s opinions that the earth surrounding the
Barbers’ former home and its concrete foundation necessarily
conducted NEV from the Topaz substation in some amount, and
even accepting his very general opinion that this is unsafe in some
unspecified way and increases the chances of electrical shocks to
the home’s inhabitants, Drummond’s opinions do not speak to
whether—let alone provide a basis on which a jury could reasonably
conclude that—the requisite level of voltage was present in the
Barbers’ former home. Nor do Drummond’s opinions (or any other
evidence the Barbers identify) speak to whether the conditions at
any place in the Barbers’ former home were such that, under the
laws of physics as set forth in uncontradicted SCE expert testimony,
NEV in the home could be transmitted into the body of an
inhabitant in a sufficient amount to cause a perceptible shock.
Kellers and Perry likewise offer no such testimony regarding the
conditions in the Barbers’ former home (even assuming for the
moment they had any basis for offering such testimony).
We reject the Barbers’ argument that their own testimony
describing the shocks they experienced, combined with Drummond’s
opinion that the shocks the Barbers described were inconsistent
with static electricity and more consistent with stray voltage,
creates a triable issue on causation. Drummond’s opinion that such
symptoms are consistent with stray voltage is not tantamount to an
opinion that the Barbers’ symptoms actually were caused by stray
voltage. Indeed, Drummond conceded that he had not formed any
opinions as to what caused the Barbers’ perceived shocks. (See
fn. 6, ante.) Nor did Drummond opine that the Barbers’ reported
shocks were inconsistent with all the potential non-stray voltage
24
sources of such shocks identified in other expert testimony, such
as faulty wiring and malfunctioning appliances. The Barbers’
testimony may serve as circumstantial evidence that their shocks
were not caused by static electricity, but evidence establishing
what did not cause the shocks is insufficient to establish what
did cause them. It therefore cannot create a triable issue on
causation—especially in the face of SCE’s showing that the physical
prerequisites for stray voltage causing the Barbers’ shocks simply
were not present at the Barbers’ home. (See Ortega v. Kmart Corp.
(2001) 26 Cal.4th 1200, 1205–1206 [“ ‘[a] mere possibility of such
causation is not enough; and when the matter remains one of pure
speculation or conjecture, or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a verdict for
the defendant’ ”].) Thus, the Barbers have not rebutted SCE’s
initial showing that the Barbers cannot establish the conditions
scientifically necessary to causally link the Barbers’ shocks with
stray voltage attributable to SCE.
The Barbers argue the trial court applied the wrong legal
standard in its causation analysis, based on the court’s reference
to concepts in toxic tort cases. But the legal standard applied by
the trial court is not a basis for reversal when our review is de novo
and we determine the court’s ruling is correct under the applicable
standard. That is the case here. The causation analysis we set
forth above applies “the ‘substantial factor’ test” that “California
has adopted . . . for cause in fact determinations” (Union Pacific
Railroad Co. v. Ameron Pole Products LLC (2019) 43 Cal.App.5th
974, 981 (Union Pacific)), as well as the appropriate burden-shifting
framework applicable on summary judgment. (See Y.K.A.
Industries, supra, 174 Cal.App.4th at pp. 353−354.) Because we
conclude the summary judgment ruling was correct under the
25
appropriate legal framework, we need not address the Barbers’
argument that the court applied the incorrect legal standard.
That the instant matter involves electricity does not change
the foregoing causation analysis. In arguing to the contrary, the
Barbers incorrectly rely on Polk v. City of Los Angeles (1945) 26
Cal.2d 519 (Polk). In Polk, it was undisputed that the plaintiff
had suffered harm as a result of being electrocuted. (Id. at
pp. 525−526.) Specifically, the plaintiff was electrocuted when
he came into contact with the defendants’ electrical wire while
pruning trees. (Id. at p. 524.) There was no question that
such contact occurred or caused the harm of which the plaintiff
complained—only a discussion of whether the defendant had
exercised sufficient caution in its maintenance of the wires at
issue. (See id. at p. 525.)
The cases on which the Barbers rely in their arguments
about causation either support our conclusion, or are inapposite.
The Barbers cite several cases not involving causation as examples
of the general proposition that, “[w]here . . . the defendant fails
to meet its burden of negating a necessary element of plaintiff ’s
claim, courts reverse summary judgment.” (See Mackey v. Trustees
of California State University (2019) 31 Cal.App.5th 640, 667–668
[where several plaintiffs left college team and “attribut[ed] [their]
departure . . . to . . . allegedly discriminatory treatment” of the
coach, “a reasonable trier of fact could . . . conclude” one teammate
plaintiff who did not leave nevertheless “suffered a materially
adverse action[, because] the departures of her peers suggests a
sufficient severity or pervasiveness of [such] treatment to withstand
summary judgment”]; Lane v. City of Sacramento (2010) 183
Cal.App.4th 1337, 1346 (Lane) [defendant City’s evidence regarding
the low number of reported accidents involving a particular street
divider “was not sufficient to preclude a reasonable trier of fact from
26
finding the divider posed a substantial risk of injury” because
accidents could have occurred but not been reported]; Jeewarat v.
Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 431
[because “an employee's attendance at an out-of-town business
conference may be considered a special errand . . . the employer
failed to show that the employee was not acting within the course
and scope of his employment at the time of the accident, summary
judgment was improperly granted”].) But unlike in these cases,
SCE has provided evidence negating an element of the Barbers’
claims, and the Barbers have not offered contrary evidence or
evidence discrediting SCE’s evidence.
The cases the Barbers cite that do involve causation are
inapposite. These cases involve a defendant’s efforts to negate
the element of causation on summary judgment by establishing
an alternative cause of the plaintiff ’s injury or accident. (See
Union Pacific, supra, 43 Cal.App.5th at pp. 981−982 [defendant’s
showing that the accident at issue would have occurred, even
absent defendant’s action, did not prevent finding that there was
a causal nexus between defendant’s conduct and plaintiff ’ s injuries
in the accident]; Cole v. Town of Los Gatos (2012) 205 Cal.App.4th
749, 769 [defendant “could not establish an entitlement to summary
judgment merely by showing that [a driver’s] inebriation was a
cause of plaintiff ’ s injuries” and instead “had to establish . . . that
plaintiff would be unable to present evidence that any condition
of the public property where the accident occurred was also a
substantial causative factor in bringing about her injuries,” italics
omitted].) SCE did not seek summary judgment by attempting to
prove alternative causes or additional contributing causes for the
Barbers’ claimed shocks, so these cases are inapplicable. Rather, as
required by the cases on which the Barbers rely, SCE “ ‘present[ed]
evidence that would preclude a reasonable trier of fact from finding
27
that it was more likely than not that’ ” stray voltage caused the
Barbers’ shocks. (Lane, supra, 183 Cal.App.4th at p. 1343.)
B. Res Ipsa Loquitor Does Not Provide a Basis
for Reversal
Finally, we find the Barbers’ res ipsa loquitor arguments
unconvincing. Where it applies, the doctrine of res ipsa loquitor
permits a finder of fact to infer that something was caused by
the defendant’s negligence, despite the lack of any evidence
establishing such negligence or causation. (See Brown v. Poway
Unified School Dist. (1993) 4 Cal.4th 820, 825 (Brown).) The
Barbers argue that the doctrine applies here and permits them
to establish causation without actually proving causation in fact—
and thus to survive summary judgment despite SCE’s showing that
they cannot establish causation in fact. We disagree.
The doctrine of req ipsa loquitor applies where the evidence
satisfies three conditions: “ ‘ “(1) the accident [or injury] must be of
a kind which ordinarily does not occur in the absence of someone’s
negligence; (2) it must be caused by an agency or instrumentality
within the exclusive control of the defendant; (3) it must not have
been due to any voluntary action or contribution on the part of the
plaintiff.” ’ [Citation.]” (Brown, supra, 4 Cal.4th at pp. 825–826.)
We note at the outset that, although it is a subject of some debate
between the experts,11 there is evidence in the record suggesting
that the type of shocks the Barbers describe can have non-negligent
11That there is conflicting evidence in the record as to
whether the symptoms the Barbers described were consistent with
being caused by some of these alternative sources does not mean
the Barbers have established the first element of res ipsa loquitor.
In any event, we need not decide this issue, given our conclusion
that even if the doctrine applied, SCE’s evidence would rebut the
presumption the doctrine creates.
28
sources outside of SCE’s control, such as static electricity, EMFs,
faulty wiring, and malfunctioning appliances.
Nevertheless, even assuming, for the sake of argument,
that the Barbers have established these elements and the res ipsa
loquitor doctrine applies, “the res ipsa loquitur presumption
disappears” when, as here, “the defendant produces evidence
sufficient to sustain a finding that . . . any negligence on [the
defendant’s] part was not a proximate cause of plaintiff ’ s injury.”
(Frantz v. San Luis Medical Clinic (1978) 81 Cal.App.3d 34, 44.)
SCE offered precisely such evidence in moving for summary
judgment, as set forth above. Because of this uncontradicted
evidence, even if the elements of res ipsa loquitor had been
satisfied, the Barbers must still prove causation in fact, and have
failed to offer evidence based on which, in light of SCE’s summary
judgment showing, they could do so.
In sum, “[c]ausation is generally a question of fact for the
jury, unless reasonable minds could not dispute the absence of
causation.” (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656,
666.) There is no such possibility of dispute in this case. SCE
is “entitled to summary judgment based on a lack of causation”
because Loud’s uncontradicted, unquestioned testimony regarding
the absence of physical prerequisites for proving causation in this
case “conclusively negate[s]” such causation. (Union Pacific, supra,
43 Cal.App.5th at p. 981.)
29
DISPOSITION
The judgment is affirmed. Respondents are awarded their
costs on appeal.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
30
Filed 6/24/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
LORI BARBER et al., B305585, B305587
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. Nos. BC497689,
YC066729)
v.
CERTIFICATION AND
SOUTHERN CALIFORNIA ORDER FOR PUBLICATION
EDISON COMPANY,
Defendant and Respondent.
THE COURT:
The opinion in the above-entitled matter filed on May 27,
2022 was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
____________________________________________________________
ROTHSCHILD, P. J. CHANEY, J. BENDIX, J.