Court Tentatively Rules Fire Plaintiffs Can Move Forward

The State, City and DWP are in court over the Palisades Fire.

A February 10 hearing (postponed from February 5) was to decide whether victims will ever be allowed to uncover facts through discovery, or whether the case will be cut off before evidence is examined.

At the hearing presided over by Superior Court Judge Samantha Jessner, there were five attorney’s representing fire victims, an attorney representing the State of California and three attorneys from Munger Tolles & Olson.

Prior to the afternoon’s hearing, a tentative 35-page ruling (Plaintiffs against State) and a 25-page ruling (Plaintiffs against the City/DWP), the Judge had mostly ruled for the plaintiffs – the case can go forward click here. Though tentative rulings are not final; courts rarely change them.

Kevin Boyle of Boyle Law said, “Great news. The hearing today on the State and City demurrers went well. The Court’s tentative rulings are in our favor.”

The decision today centered not on damages, but about whether government agencies can be held accountable. City/State agencies claim they are immune from tort liability and inverse condemnation (when property is damaged).

The City of Los Angeles also filed a cross-complaint against the State of California on February 5, seeking indemnity and contribution for fire victims’ claims against the City.

The two-hour hearing held at L.A. Superior Court was open to the public and a handful of residents were in court. Others listened to the hearing over LA CourtConnect.

First, State Lawyer Timothy Lake argued that the State should not be held responsible for fire damages because “A public entity (such as the state) is generally immune from liability, pursuant to Government Cod sections 850 and 850.2.”

Lake said the Lachman Fire was arson and that the state should not be liable for that crime. “What happened on January 7 was an ember on a fire that was never put out,” he said. “We would argue that the key factor is a wrongful conduct of a third party that caused the fire. There cannot be liability for third party conduct.”

Attorney Kevin Boyle argued for the fire victims that “the state should have known about the dangerous conditions . . .” He pointed out in the state’s park manual that “if there’s a fire the state will close it for inspection. They have a duty to act reasonably, but they didn’t do it.”

The Judge agreed and overruled the state’s demurrer on that action.

The Judge also agreed with the state that the plaintiffs failed to show that overgrown brush was a dangerous condition and noted that maintaining the flora of Topanga State Park was a purpose of state parks.

LADWP and the City were represented by Munger Tolles & Olson. Co-managing partner Daniel Levin argued for the City. According to the MTO website Levin focuses his practice on hit-stakes crisis and complex litigation: he’s appeared in courts across the country and argued before the U.S. Supreme Court. Partners at MTO have billed in the range of $1,045 to $1,245 an hour.

The court filing shows that there were six causes of action brought against the LADWP and City. Three concerned the powerlines; one was about the water supply system; the last two covered the dangerous conditions of public property and a public nuisance.

The City/LADWP filed a demurrer, arguing that the complaint was legally insufficient. Levin argued that LADWP cannot be liable for failing to provide water for firefighting and that the lack of maintenance on the reservoir cannot be brought into court under the public utility exemption. Levin argued that there was no case law – even up to the Supreme Court level – to allow this case to proceed.

The Judge in her ruling concluded that “For all the reasons discussed herein, the City and LADWP’s Demurrer is otherwise overruled.”

The Judge said she planned to issue a final ruling by next week and asked for lawyers to provide her with a case management plan going forward, which will include discovery.

Plaintiff lawyers, who have taken depositions of Los Angeles Fire Fighters and California Park Rangers, asked if those testimonies, which are under a confidentiality agreement for 30 days, could be made public sooner. They felt that the city was “dragging its feet” in releasing them. The Judge pointed out that plaintiff lawyers had agreed to 30 days.

After the hearing, lead attorney Roger Behle of Foley, Bezek, Behle & Curtis, said attorneys were pleased with the tentative rulings of important claims in plaintiff’s favor. “This is a great development for Palisades fire victims,” Behle said.

The next hearing will be on March 18.