Carracela v. Southern Cal. Edison Co. CA2/8

Filed 12/11/20 Carracela v. Southern Cal. Edison Co. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MICHAEL CARRACELA, B294297
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC588898)
v.
SOUTHERN CALIFORNIA
EDISON COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark C. Kim, Judge. Affirmed.
Boucher, Raymond P. Boucher, Maria L. Weitz; Aitken
Aitken Cohn and Richard A. Cohn for Plaintiff and Appellant.
Leon Bass, Jr., Richard D. Arko; Murchison & Cumming,
Friedrich W. Seitz, Gina E. Och; Greines, Martin, Stein &
Richland, Robin Meadow and Eleanor S. Ruth for Defendant and
Respondent.
____________________
Michael Carracela appeals the summary judgment of his
negligence claim against Southern California Edison Company
(Edison). We affirm.
I
We recount facts and inferences in the light most favorable
to Carracela. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 843 (Aguilar).)
Carracela suffered a serious electrocution injury while
doing demolition work for a project replacing a bridge at the Port
of Long Beach (the Port).
Carracela worked as a journeyman laborer for Miller
Environmental, Inc., a subcontractor on the project. The general
contractor was a joint venture of three companies: Shimmick
Construction, Inc., FCC Construccion S.A., and Impreglio, S.p.A.
The general contractor retained the corporation Safe Utility
Exposure, Inc. to coordinate utility services. The Port retained
Parsons Brinckerhoff, Inc. to manage construction of the project,
including utility coordination. The Port also retained Safework,
Inc. to oversee construction safety.
On July 24, 2013, Carracela was working on a particular
part of the project: demolition and demolition clean-up for an
overpass and off-ramp on a pier called Pier T. He and a
coworker, Victor Cruz Bolanos, were in the basket of an 80- or 85-
foot aerial boom lift. Bolanos operated the lift. Carracela had an
air hose to clean concrete debris from the top of a partially
demolished off-ramp. (The trial papers sometimes referred to
this as an “on-ramp” but Carracela’s appellate briefs refer to the
“Pier T Off-Ramp.” We refer to this area as the “off-ramp,” “off-
ramp bridge,” and “overpass” throughout the opinion.) Carracela
2
was clearing debris off the top of the horizontal girders or I-
beams that had supported the roadway.
A sign on the overpass read “15 FT 3 IN.” A photo of the
overpass shows the overpass sign attached to the side of girders.
Bolanos said the girders were two feet “wide.” A Miller safety
director said the girders were four to five feet tall.
While Carracela and Bolanos were above the girders, a
steel stud entangled the air hose. To disentangle the hose,
Bolanos pulled the basket back and to his right. Then he went
higher and extended the boom to create slack. In doing so, he
raised the lift toward a power line. When he raised the lift,
Bolanos was looking down through the basket for the hose and
looking at his controls. At his deposition, Bolanos agreed he lost
track of the power lines when he raised the lift.
Electricity arced from the line to Carracela. Bolanos
estimated Carracela’s head was 10 feet from the line.
Carracela sustained serious injuries, including electrical
burns to his upper body, nerve damage in his writing hand, and a
head wound that resulted in neurological damage.
Edison owned power lines in the area, including the one
that injured Carracela. The line was a 12,000-volt line. There
are different types of lines. This one was a distribution line.
Testimony about the line’s height put it at 60 feet or more
in the air. A photo of the overpass shows a roadway under the
overpass and a lower road to the right. Carracela says there is a
dispute about the distance between the top of the off-ramp bridge
and the lines. We discuss this issue later in the opinion.
On July 22, 2015, Carracela filed a complaint against the
general contractor, Edison, and others. The complaint alleged six
3
causes of action. Only the third cause of action, negligence,
involves Edison.
The third cause of action says Edison “owned, operated,
designed, manufactured, installed, tested, inspected, and
maintained overhead electrical power lines that intersected the
construction area” for the project, including the line above
Carracela’s worksite when he was injured.
Carracela said Edison breached its duty of reasonable care
because it:
1) “negligently designed, manufactured, tested or failed to
consider the results of testing, operated, inspected or failed
to inspect, and maintained” the power line and/or the
power system;
2) failed to provide “customary power line protection;”
3) allowed construction or demolition within the power
line’s path;
4) failed to dismantle the line in a timely manner;
5) failed to de-energize or insulate the line; and
6) failed to erect a barrier or to provide other warning
devices to keep workers like Carracela from getting
dangerously close to the line.
Carracela said harm to people who might accidentally
make contact with an arc flash from the line was reasonably
foreseeable. He alleged the negligence was a substantial factor in
his injuries.
On May 1, 2018, Edison moved for summary judgment. It
said Carracela could not prove duty, breach, or causation.
The court issued a tentative ruling and held a hearing on
the motion on July 17, 2018.
4
The tentative ruling found Edison satisfied its initial
burden of negating breach. The court noted Carracela
“admitted . . . he has no evidence that PUC’s General Order No.
95 was violated with respect to height requirements – i.e. the
power lines were not lower than required by the PUC.” It was
undisputed Edison had no part in the demolition work and did
not control Miller’s equipment or the manner of Miller’s work.
The court determined Edison negated the element of breach
of duty. Three facts undergirded the court’s reasoning:
1) Edison’s power line complied with General Order 95 height
requirements; 2) Edison lacked notice that workers were
operating a boom lift next to power lines on the date of the
incident; and 3) no one asked Edison to de-power the line.
The court addressed causation and duty but its ruling did
not rest on these elements.
The court admitted declarations of two of Carracela’s
experts but concluded they did not create a triable issue. The
court found the declarations did not refute the three pertinent
facts we listed and it did not refute that Carracela and his
coworkers knew about the power lines and knew they needed to
stay at least 10 feet away.
At the hearing, the court granted a request by Carracela to
continue the July 17, 2018 hearing to give counsel more time to
review the tentative.
On July 30, 2018, Carracela applied ex parte to file an
amended separate statement and additional supporting evidence.
Some of the additional evidence was new and other evidence was
from 2017. The court granted his request, continued the
summary judgment hearing, and allowed Edison to respond.
5
Edison filed a supplemental reply. An attachment to the
reply included an e-mail exchange Carracela had referenced but
not included in his papers. Both sides say the e-mails help them.
In the exchange, the general contractor asked Edison project
manager, Nolan Lam, if someone from Edison could be present
during demolition at a “phase 1B transmission line” in case the
poles “got hit by rubble or equipment.” This is not the line that
injured Carracela. The general contractor later e-mailed to say
the demolition work was a “clear distance” from the overhead
lines and they would not need a patrol person but might need it
for future work. Edison requested more information about the
timing and scope of the work and said the general contractor
would need to pay Edison before it could schedule this work. On
July 16, 2013, the general contractor responded and said it would
not need an Edison patrol person for the next two weeks.
The court held the continued hearing on August 28, 2018.
At the hearing, the court asked Carracela whether he was
arguing Edison breached its duty by not relocating the line.
Carracela responded “[t]hat is part of it, but it doesn’t end there.”
Edison could have de-energized the pole without affecting
“anybody anywhere whatsoever under any circumstances.”
Edison could have put “sleeves” on the lines. Carracela did not
specify which actions by Edison might have satisfied Edison’s
duty but stated, “[t]hey had an obligation and they did not -- they
did not comply with that duty, they did not comply, and
therefore, under the circumstances, summary judgment should be
-- should be left for the jury to determine.”
Edison disagreed. It did not have to anticipate “every
fortuitous circumstance that might happen.” “It is not an insurer
of everybody’s safety that may or may not work within the lines.”
6
Edison denied having notice about the particulars of
Carracela’s work, such as the date of the work or the fact
Carracela would be using an 80-foot lift under the lines. It
attended meetings with the Port and the general contractor
“about the project in general, but nothing about that particular
location.”
Edison asserted Miller, Carracela, and the lift operator,
Bolanos, knew the lines were there and were energized. No one
asked Edison to de-energize the lines, to put blankets on the
lines, or to have someone patrol the area. The lines were already
isolated and Edison did not need to do more.
Carracela made two concessions at the hearing. First, he
agreed no one asked Edison to de-energize the line. Second, after
the court asked whether Edison had actual notice workers were
using lifts, Carracela said he “cannot represent to the court that
[Edison] had actual notice that they were going to be using a
boom lift on that day.” Carracela asserted this was “a nonissue”
because the only way to demolish such a ramp was with lifts, so
Edison had constructive notice.
On August 30, 2018, the court adopted the tentative as its
final ruling and granted Edison’s motion for summary judgment.
Carracela’s new evidence did not establish Edison’s lines were
out of compliance with relevant regulations, did not show
Carracela was unaware of the presence and location of the lines,
did not show anyone notified Edison of work in the area, and did
not show anyone requested the lines be de-energized.
II
Summary judgment was proper. Edison negated
negligence per se and breach and Carracela failed to produce
facts creating a material disputed fact on these elements.
7
To win summary judgment, a defendant must show the
plaintiff cannot establish at least one element of a cause of action.
(Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at
p. 853.)
To avoid summary judgment after a defendant makes the
necessary showing, the plaintiff must present admissible
evidence, not merely claims or theories, that reveal a triable,
material factual issue. (E.g., Torres v. Reardon (1992)
3 Cal.App.4th 831, 836.)
Summary judgment motions are desirable. They can
determine a case’s merit without the cost and inconvenience of a
trial. (See Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542.) Whichever way the ruling goes, it usually gives parties
extremely helpful information about the true value of the case.
This facilitates settlement, which is good for the parties and for
everyone else too.
Our review is independent. (Aguilar, supra, 25 Cal.4th. at
p. 860.) Carracela has the responsibility as the appellant,
though, to demonstrate the trial court’s ruling was erroneous.
(Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 372.)
A
Edison negated negligence per se. Carracela did not allege
this claim in his complaint. On the merits, Edison refuted
negligence per se and Carracela failed to create any material
factual dispute.
Negligence per se holds that statutes and regulations may
establish duties and standards of care in negligence actions.
(Elsner v. Uveges (2004) 34 Cal.4th 915, 927 & fn. 8.)
Carracela’s complaint does not include the words
“negligence per se,” nor does the complaint allege Edison violated
8
some statute or regulation. We nonetheless address this issue
because Edison asserted it complied with the California Public
Utilities Commission General Order 95 height requirements, the
trial court discussed the General Order, and both parties briefed
the issue of negligence per se on appeal.
Edison requested judicial notice of General Order 95, which
we grant.
General Order 95 provides rules for overhead electric line
construction. Within the order, rule 37 designates minimum
vertical clearances for power lines based on voltage and location
type. For example, high voltage lines and lines that cross
railroads require more clearance.
We accept Edison’s uncontested assertion that rule 37 of
General Order 95 required the line in question to have a 25-foot
clearance. Power lines of 12,000 volts, like the one at issue,
require a 25-foot clearance if the lines cross or are along a
thoroughfare. A lower eight-foot standard applies to situations
involving non-walkable surfaces on bridges that do not ordinarily
support conductors. The parties, however, did not brief this
issue. As Edison noted in its respondent’s brief, Carracela never
disputed the 25-foot standard or offered a different clearance
height. Edison, which would have less liability under a shorter
standard, says the taller standard applies here. Although it was
being demolished, the off-ramp bridge had been a thoroughfare.
We apply the 25-foot standard.
Edison offered extensive evidence the lowest point of the
line was more than 60 feet off the ground. We sample this
evidence: Carracela estimated the line was 80 feet tall; a Miller
safety director who measured the line using a laser tool about a
week before Carracela was injured said it was above 60 feet tall;
9
and a Miller superintendent said it was over 65 feet from the
roadway on which the boom sat. An Edison designer said he
designed the line to ensure it met General Order 95 standards
even at its lowest point.
Edison’s separate statement referred to the “15-foot, 3 inch”
bridge overpass. As we mentioned above, a sign on the off-ramp
bridge read “15 FT 3 IN.” Edison’s respondent’s brief cites
testimony about the height of the girders to which the sign is
attached. Edison acknowledges the largest estimate put the
height at four to five feet tall. Using the maximum estimated
height of five feet, the top of the supporting girders was 20 feet
three inches.
The distance between the top of the off-ramp bridge, 20 feet
three inches, and the lines—over 60 feet—was therefore at least
39 feet. This distance exceeds the 25-foot requirement. Edison
refuted a claim of negligence per se based on General Order 95
height requirements.
Carracela disagrees about the distance between the top of
the off-ramp bridge and the line. This disagreement flows from
two supposedly contested issues about: 1) the height of the line,
and 2) the height of the off-ramp bridge relative to where a pole
entered the ground. Neither disagreement created a disputed
issue of material fact.
We start with the height of the line. Carracela says the
line was attached to a 64-foot cross arm. He contends, however,
that due to sag the line was slightly lower than 64 feet. An
Edison distribution planner said a line like this one could sag
about three feet. Considering the facts in the light most
favorable to Carracela, we calculate the line to be a minimum of
61 feet off the ground from the bottom of the pole. This figure is
10
consistent with Edison’s contention that the minimum height was
above 60 feet. It does not create a disputed material fact.
We turn to the height of the off-ramp bridge.
Carracela does not dispute the existence of the “15 FT 3
IN.” sign. He says the top of the overpass girders were “at least
20 feet 3 inches” above the underpass roadway. He does not
point to evidence that the height was higher than 20 feet three
inches. In the light most favorable to him, we presume the
height from the bottom to the top of the bridge deck was 20 feet
three inches. Edison acknowledged this figure and it does not
create a disputed material fact.
Carracela uses two flawed techniques to try to diminish the
distance between the line and the off-ramp bridge.
First he tries to include his own height and facts showing
his assigned work area may have been above the bridge deck.
This misses the mark. Rule 37 of General Order 95 is about
clearance from the “surface” of thoroughfares. The relevant
inquiry is the distance between the surface of the off-ramp bridge
and the line. Carracela’s arguments about the clearance using
his potential position above the bridge are irrelevant to the
General Order’s clearance requirement.
This is logical. Twenty-five feet is a relatively large
clearance. The 25-foot clearance builds in the potential for
something like a truck or a person of Carracela’s height to be
atop the surface. Carracela’s claims about distances above the
off-ramp bridge do not change the analysis about compliance with
the General Order’s height requirements.
Carracela’s second flawed technique is to argue the bottom
of the off-ramp bridge was higher than the elevation where the
64-foot pole went in the ground. To do so, he points to evidence of
11
an embankment. His argument relies on an unsupported
assumption that the base of the pole was at the bottom of the
embankment. He has neither acknowledged this assumption nor
attempted to support it with evidence.
We review Carracela’s evidence about the height of the
surface of the off-ramp bridge to show why his second technique
fails. The pertinent evidence is deposition testimony from a
Miller superintendent and from a Miller safety director.
We start with the superintendent. Carracela directs us to a
single page of deposition testimony, page “3AA 155.” There is no
page 155 in our third appendix. We assume he means page 688,
which corresponds to an exhibit with a single page of the
superintendent’s testimony. The single page begins with the
following exchange between Carracela’s lawyer and the
superintendent:
“THE DEPONENT: The clearance was 15 foot, 9.
BY MR BOUCHER:
Q And then from the roadway up the embankment
was another approximately 15 to 18 --
A I -- I -- I guess. I mean -- pretty -- you know.
Pretty -- you know, not much. I mean, you can -- you
could tell -- I would say 15, 20 feet.
Q And that’s the same estimate --
A Lower.
Q -- that we got from another witness that measured
it . . . .”
The lawyer goes on to ask the superintendent about the
width of an unspecified “I-beam” and then the exhibit ends.
We turn to the testimony of the safety director. Carracela
points to “3AA 684.” Page 684 in the third appendix is the cover
12
sheet for the safety director’s deposition and contains no
testimony. We assume Carracela means to refer us to the
following page, another single page of deposition testimony. On
this page, the safety director says there was “kind of like a rock
embankment kind of on the side that goes up -- I’d estimate it
around roughly 15 feet. And then that led to the on-ramp road.”
Carracela also directs us to his amended response to
Edison’s separate statement. As a separate statement, those
pages themselves provide no evidence. Further, those pages offer
no citations to other evidence that show the location of the base of
the pole.
Carracela incorrectly claims the testimony from the
superintendent and from the safety director show the underpass
roadway was 15 to 20 feet higher than the base of the pole. We
agree with Edison, which pointed out that Carracela’s argument
relies on an assumption that Carracela’s evidence neither
supports nor addresses: that the base of the pole was on that
lower area below the embankment. Neither the superintendent
nor the safety director mention a pole or the location of the base
of a pole in relation to the embankment they describe.
In his reply brief, Carracela repeats his argument that
there are material factual disputes about the relative location
and elevation of the utility pole and height of the off-ramp bridge
deck. He fails to address Edison’s counter that his position is
based on an unsupported assumption about the pole’s location.
He identifies no evidence to support the assumption. Rather, he
recites the same calculations based on the same unsupported
assumption the base of the pole was on a lower level. Carracela’s
evidence is insufficient to create a disputed issue of material fact.
13
During oral argument, Carracela directed us to a
photograph of the off-ramp bridge. This photo does not show the
base of the pole nor does it show where the lines run. This
evidence does not help Carracela prove his claim the place where
the pole met the ground was 20 feet lower.
On appeal, Carracela also says he disputed Edison’s
compliance, not with the 25-foot height requirement, but with
General Orders 95, 165, and 128’s imposition of a duty to be
“absolutely aware” of all hazards and to “prevent any accidental
contacts.”
Carracela has not identified the location of Order 165 or
Order 128 within our record or otherwise told us how to find
them. Nor has he directed us to the specific rules within the
orders that he believes create a regulatory duty. We have not
found Order 165 or Order 128 in the record. We cannot assess
this claim, which Carracela has forfeited.
Carracela’s claim as it pertains to General Order 95 fails.
General Order 95 includes many broad prescriptions, like rule
31.1’s requirement to follow “accepted good practice for the given
local conditions known at the time.” This and the other General
Order 95 rules, which Carracela lists for the first time in his
reply brief, merely restate the common law rule of due care and
cannot support negligence per se. (Perrine v. Pacific Gas & Elec.
Co. (1960) 186 Cal.App.2d 442, 447 (Perrine).)
In conclusion, Edison established Carracela could not prove
negligence per se.
B
Edison negated breach.
A utility’s compliance with the General Orders does not
establish due care as a matter of law but merely relieves it of the
14
charge of negligence per se. (Nevis v. Pacific Gas & Electric Co.
(1954) 43 Cal.2d 626, 630.) A utility’s acts or omissions may still
be negligent based on the particular circumstances of the case.
(Ibid.)
To establish negligence, a plaintiff must show a legal duty
to use due care, the breach of that duty, and proximate causation.
(Lozano v. Pacific Gas & Elec. Co. (1945) 70 Cal.App.2d 415, 420.)
The standard of care for maintaining wires carrying
electricity is to exercise the care a person of ordinary prudence
would use under the circumstances. Those circumstances include
the dangerous character of electricity and the inherent risk of
injury from contact with electricity. This duty requires those
controlling electricity to insulate wires properly everywhere
injury is reasonably probable. Those maintaining wires also have
a duty of reasonable, prompt, and diligent oversight. (Polk v. City
of Los Angeles (1945) 26 Cal.2d 519, 525.)
Those maintaining a high power line need not, however,
anticipate every possible fortuitous way the lines may cause
harm. The standard is care commensurate with and
proportionate to reasonably foreseeable consequences. Those in
charge of the lines do not provide insurance against every
possible accident. (Perrine, supra, 186 Cal.App.2d at p. 449.)
The Perrine decision shed light on when a utility breaches
its duty. The court affirmed a judgment after a defense motion
for a directed verdict. The plaintiff, a bricklayer, was burned
after a 30-foot pole he was holding touched high-voltage wires.
(Perrine, supra, 186 Cal.App.2d at pp. 444–445.) The power
company was not liable because the lines complied with General
Order 95 distance requirements. They were plainly visible and
had warning signs. (Id. at p. 449.) The utility did not have
15
reason to know the equipment would be used in dangerous
proximity to the wires. The accident was not reasonably
foreseeable given the particular facts of the case. (Ibid.)
1
Edison’s evidence negated breach.
Miller, Carracela, and Bolanos were generally aware of the
line. Bolanos recalled Miller discussed the line at a meeting the
morning of the accident. Carracela admitted in an interrogatory
he was “generally aware” of the line’s existence.
The power line was extremely visible. The closer you got to
the line, the more visible it became. It was obvious what it was:
a power line. It was high off the ground.
Due to the elevated and visible nature of the line, Edison
could not anticipate workers would get near it.
No one asked Edison to de-power the line. Carracela
conceded this fact at the summary judgment hearing.
Edison had confirmation from the general contractor’s
e-mails that certain demolition work was a “clear distance” from
the overhead lines. On July 16, 2013, the general contractor told
Edison it would not need an Edison patrol person for the next two
weeks. This period covered the time of Carracela’s accident.
Edison could not foresee harm when project authorities told it
precautions were not necessary.
Edison was entitled to rely on the companies the general
contractor and the Port retained to coordinate utility services and
to oversee construction safety. They were there, in part, to keep
Edison aware of dangers and to coordinate issues like conflicts
between demolition work and electricity lines.
Edison lacked knowledge about the specifics of demolition
work, including the height of the lifts. It did not know about the
16
demolition work involving Carracela at the Project on or before
the incident and it had no part in the demolition work. Carracela
conceded Edison lacked actual notice workers were using a boom
lift that day.
Edison’s project manager at the bridge site was one Lam.
Lam said Edison played no part in demolition and would not have
been involved in the scope, scheduling, sequencing, or
performance of work relating to the demolition of the Pier T off-
ramp. Edison did not know Carracela was doing demolition work
on the Pier T off-ramp. Nor did it receive contemporaneous
details about the accident.
George Perez, an Edison project manager, also said Edison
did not know workers were using lifts. He did not know how
workers would be performing demolition; he had “no clue.”
2
Carracela makes many arguments but has no good answer
to Edison’s evidence refuting breach.
On appeal, Carracela says he raised material factual
disputes regarding regulatory compliance and notice. We already
have treated the issue of regulatory compliance, on which Edison
prevails. Thus we turn to Carracela’s notice issue.
a
We begin with an evidentiary point. The trial court
properly excluded deposition transcripts from 2017 that
Carracela offered for the first time in his amended opposition. To
show notice, Carracela cited Exhibit U, excerpts from April 17,
2017 deposition testimony of Steve MacLennan. MacLennan was
the person most qualified for Parsons Brinckerhoff, the
corporation the Port retained to manage construction and
coordinate utilities. Edison contested Carracela’s inclusion of
17
this evidence because Carracela could have but did not include it
in his first opposition. The court agreed and excluded the
evidence.
In a footnote of his opening appellate brief, Carracela says
the trial court’s exclusion of Exhibit U was erroneous because the
old evidence became relevant only after Carracela gained new
evidence, which he did not have when he filed his initial
opposition.
Carracela reasons thusly. One Salvatore Davi, who
testified after Carracela filed his opposition, could not recall
certain facts, which made the testimony of one Charles Fornelli
relevant. MacLennan’s testimony, in turn, provided “important
context” about Fornelli’s role in the project.
The court properly excluded Exhibit U. Carracela could
have but did not include it in his first opposition. Interests of
efficiency and fairness made exclusion proper.
Carracela misinterprets what the deposition says about
Fornelli. MacLennan’s testimony does not identify Fornelli as a
utility coordinator. Rather, Carracela asked MacLennan whether
Fornelli was involved in coordinating utility relocation and
MacLennan responded “[t]he utility coordination, again, that
would have fallen under Frank Goodwin.” The court properly
excluded this evidence, which did not provide facts about
Fornelli.
Carracela’s opposition cited Exhibit U to challenge Edison’s
notice. We do not rely on the exhibit for this purpose. Carracela
said MacLennan’s deposition showed that a goal of utility
coordination was to identify conflicts between existing utilities
and construction. He cited MacLennan again to support the
proposition the general contractor and Edison shared their work
18
progress to mitigate conflicts. Mitigation could include re-
sequencing Edison’s work. Carracela does not and cannot explain
how his citations to MacLennan for these propositions were
irrelevant when he filed his first opposition. The court properly
excluded Exhibit U as untimely. We do not consider it.
b
We turn now to Carracela’s arguments and evidence about
notice, relying on his other evidence.
Carracela said Edison had “actual and constructive notice”
of the conflict between the Pier T off-ramp demolition work and
the line, knew about the location and scheduling of the work, and
knew the lines were in close proximity to demolition work. It was
“reasonable to infer” Edison’s field representatives saw the work
on the days leading to his injury and on the date of his injury.
Edison “knew or should have known that such work necessarily
included manlifts and heavy equipment in close proximity” to the
line.
Carracela’s amended opposition included many citations
but failed to demonstrate a disputed material fact.
An overarching problem with Carracela’s presentation is its
basis in speculation and guesswork, which makes it insufficient
to create a material factual dispute. (Joseph E. Di Loreto, Inc. v.
O’Neill (1991) 1 Cal.App.4th 149, 161.)
His evidence fits in five main categories, which we now
treat.
First, Carracela offered evidence that Edison, before
Carracela’s accident, knew the line was supposed to be relocated
underground. The lines were “in conflict with the new bridge
installation or in conflict with the new proposed on-ramp,
off-ramp for the new bridge.” The relocation was delayed because
19
the Port or general contractor had not built the underground
structures to house the lines.
This evidence did not create a material factual dispute
about Edison’s knowledge that workers were using 80-foot lifts
for demolition in that area at that time. It merely showed Edison
planned to move its line and had not yet done so.
Carracela’s second type of evidence, that Edison attended
meetings and was sometimes at the worksite, also fails to create
a disputed material fact.
We summarize this evidence. Jesus Enriquez, an Edison
transmission planner, George Perez, an Edison project manager,
Bruce Cason, an Edison distribution planner, and Lam attended
weekly meetings with the general contractor and the Port. The
purpose of the meetings was to discuss plans and to avoid future
construction issues by mitigating conflicts. After construction
work began, they discussed the progress of that work. Perez said
they tracked “all the different work,” of the project, including
construction and demolition. They tracked “in general” where
workers were.
Cason said he and others on the Edison team would ride
around the project area after weekly meetings. On the rides, he
would look at the status of the work to see if construction had
started and “just generally” to watch the bridge going up. If he
saw workers too close to lines, he would let them know.
Salvatore Davi, an Edison underground civil inspector,
attended a pre-construction meeting on July 24, 2013, the day of
Carracela’s accident. Davi’s job was to inspect underground
installations. In July 2013, he had not yet begun this work. The
meeting was to verify Davi and the general contractor had the
same drawings, which the general contractor would use to install
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underground conduits and which Davi would use to inspect the
conduits. Later in the deposition, Davi said the meeting was to
inspect the conduit that was going to go underground. Davi
initially could not recall whether the July 24 meeting was at the
bridge worksite but later agreed it was somewhere on the bridge
project site and possibly at a trailer. The underground conduits
he would be inspecting would be used to put the lines
underground, including the line that injured Carracela.
This evidence does not create a material fact. The evidence
of Enriquez, Perez, Cason, and Lam at most showed Edison had a
general awareness about the goings-on at the large project site.
No one said they knew workers were using 80-foot lifts for
demolition in that area at that time. The evidence was Cason
would have talked to workers if he saw them close to the line, but
no evidence shows he saw this at Pier T. Furthermore, Davi’s job
was inspecting underground installations. Even had he been
near the Pier T site on July 24, this would not establish Edison’s
knowledge of aerial construction work.
Carracela suggests Davi was at the site and must have
been there before the accident. This is speculation.
This second type of evidence thus did not create a material
fact.
The third type of evidence is that an overarching goal of the
meetings was to identify and resolve conflicts between existing
utilities and planned construction. Carracela says this creates an
issue of fact about notice. His speculation that broad goals
created specific notice does not, however, create an issue of fact.
The fourth type of evidence, that Lam and Enriquez
generally knew demolition was occurring, also does not create a
material fact. Enriquez agreed he was aware when the
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demolition of the Pier T off-ramp began. Lam knew, as of
July 15, 2013, that workers would be demolishing the Pier T off-
ramp. He was aware Edison transmission and distribution lines
were “within [the] vicinity” of the demolition work that workers
were going to perform. General awareness about the demolition
does not create a disputed material fact. Enriquez and Lam did
not know workers were using 80-foot lifts for demolition in that
area and could not foresee such a lift would be used and raised
toward the high-voltage 60-foot line.
The fifth area of evidence is Edison’s own construction,
which also fails to create a disputed material fact. Edison
installed conductors in an area southeast of the Pier T off-ramp
in July 2013. Construction in the area does not show Edison
knew about the specifics of the work Carracela was performing.
This evidence does not create a disputed material fact.
Carracela suggests this case is like Dunn v. Pacific Gas &
Electric Co. (1954) 43 Cal.2d 265 (Dunn), but that is incorrect. In
Dunn, the Supreme Court reversed a nonsuit judgment, ruling a
factfinder should decide whether a power company unreasonably
delayed in correcting a known danger. (Id. at p. 277.) The Dunn
power company’s notice and the height of the line at issue
distinguish this case.
Austin Dunn and others worked for a park district to fill
and level an area to prepare it for construction. (Dunn, supra,
43 Cal.2d at p. 269.) This work raised the ground level and
decreased a high voltage power line’s clearance to 12 and a half
feet. (Ibid.) This clearance violated General Order 95’s height
requirements and created a generally “ ‘dangerous condition.’ ”
(Id. at p. 272.) A foreman of the power company and a supervisor
of the electric company’s pole and transmission line department
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observed the condition and warned workers not to go under the
lines. (Id. at pp. 269–270.) The next day, Dunn was electrocuted
after a dump truck touched the line. (Id. at pp. 269, 271.)
The power company said it did not breach a duty of care
but the court disagreed. Dunn distinguished cases like Pascoe v.
Southern Cal. Edison Co. (1951) 102 Cal.App.2d 254 and Hayden
v. Paramount Productions, Inc. (1939) 33 Cal.App.2d 287, in
which the defendants “had no reason to anticipate danger” or else
had no duty to make changes. (Dunn, supra, 43 Cal.2d at p. 277.)
In Dunn, the power company knew about changed circumstances
that created a generally dangerous condition, so it had a duty to
place its wires in a safe condition under the changed
circumstances.
This case is different. It involves wires over three times
higher than those in Dunn. The wires complied with the General
Order’s height requirements. If there was a generally “dangerous
condition,” there is no proof Edison knew about it.
DISPOSITION
The judgment is affirmed. We award costs to Edison.
WILEY, J.
We concur:
STRATTON, Acting P. J. CURREY, J.*
* Associate Justice of the Court of Appeal, Second Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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