Mental Distress Proximately Caused by a Trespass or Nuisance is Recoverable as Annoyance and Distress Damages, Regardless of the Personal Physical Presence of the Owners at the Time of the Trespass or Nuisance.
In the aftermath of the San Diego fires, judicial authority helps shed light on the potential permissible claims against PG&E for the October 2017 North California fires. In Hensley V. San Diego Gas & Electric Co., 213 Cal.Rptr.3d 803, 7 Cal.App.5th 1337 (Cal. Ct. App. 2017), the California Court of Appeals stated:
“SDG & E does not dispute that emotional distress damages are recoverable in trespass and nuisance cases.That proposition is indeed settled: Our high court and lower courts have long held that once a cause of action for *1349 trespass or nuisance is established, a landowner may recover for annoyance and discomfort, including emotional distress or mental anguish, proximately caused by the trespass or nuisance. (Acadia, California, Limited v. Herbert (1960) 54 Cal.2d 328, 337, 5 Cal.Rptr. 686, 353 P.2d 294 [“It is settled that, regardless of whether the occupant of land has sustained physical injury, he may recover damages for the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a
nuisance”]; Herzog v. Grosso (1953) 41 Cal.2d 219, 225–226, 259 P.2d 429 ; Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 271–272, 288 P.2d 507 (Kornoff ); Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1607, 146 Cal.Rptr.3d 585 ; Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 172, 100 Cal.Rptr.2d 662 , disapproved on another ground in People v. Rogers (2013) 57 Cal.4th 296, 330–331, 159 Cal.Rptr.3d 626,
304 P.3d 124 ; Armitage v. Decker (1990) 218 Cal.App.3d 887, 905, 267 Cal.Rptr. 399 [“The general rule is simply that damages may be recovered for annoyance and distress, including mental anguish, proximately caused by a trespass”]; Koll–Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1042, fn. 3, 29 Cal.Rptr.2d 664 [“Damages for emotional distress can be recovered in an action for private nuisance”;
citing cases]; Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 287–288, 262 Cal.Rptr. 754 [“ ‘[M]ental distress caused by the nuisance created and maintained by the defendant is an element of loss of enjoyment’ ”; citing Acadia, supra, 54 Cal.2d at p. 337, 5 Cal.Rptr. 686,
353 P.2d 294 ]; Smart v. City of Los Angeles (1980) 112 Cal.App.3d 232, 239–240, 169 Cal.Rptr. 174 ; Alonso v. Hills (1950) 95 Cal.App.2d 778, 780, 786–788, 214 P.2d 50 .)”
In Hensley, the utility company denied emotional distress damages were recoverable by fire victims who were not home at the time the damage to their property occurred. The Court concluded that mental distress proximately caused by a trespass or nuisance is recoverable as annoyance and distress damages, regardless of the personal physical presence of the owners at the time of the trespass or nuisance.
Thus there is legal authority for property owners to recover emotional distress damages, even if they were not home at the time of the fires. For those victims who were present and fled for their lives, the damages claims are even clearer.
* This information is provided to supply relevant information concerning the PG&E lawsuits, and should not be received as legal advice. If you are already represented by legal counsel please rely upon them for information and advice. No guarantees or representations about the success of the PG&E lawsuits can be drawn from this information. You can call Hansen&Miller to get your questions answered at 707-575-1040.
Your insurance policy may have contractual limits on the amount paid for loss of a mature tree like $500 to $750 per tree, and may also include a maximum cap on tree losses. However, those who caused the fires that damaged or destroyed trees can be sued for actual value and not some artificial contractually limited value. In addition to the fair market value of trees, California law also provides the possibility of recovering enhanced damages.
Many owners of property had trees killed or damaged by the October fires. California has specific statutes providing for damages and enhanced damages for injury to trees on property. Specifically, Section 3346 provides:
“ARTICLE 3. Penal Damages [3344 – 3346] ( Article 3 enacted 1872. )
(a) For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary, or that the defendant in any action brought under this section had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, the measure of damages shall be twice the sum as would compensate for the actual detriment, and excepting further that where the wood was taken by the authority of highway officers for the purpose of repairing a public highway or bridge upon the land or adjoining it, in which case judgment shall only be given in a sum equal to the actual detriment.”
The damage to trees and underwood on property can be compensated by double or even triple damages where there is willful or malicious conduct involved. The damages that can be tripled for tree damage or loss include the value of the replacement of the tree, the diminution in property value, the value of the tree, the cost of aftercare of the new tree, annoyance and discomfort from loss of the tree and/ or other related damages. The law may require or allow only certain remedies, for example you would not receive both the reduction in property value and the cost of a new equivalent tree.
Loss of trees can include damages for annoyance and discomfort. The damages for loss of trees is not limited to the value of the timber. Fulle v. Kanani, 7 Cal.App.5th 1305 (Cal. Ct. App. 2017). In Fulle, the California Court stated:
“The measure of damages to be doubled or trebled under sections 733 and 3346 is not limited to the value of the timber or the damage to the trees. The statutes have been interpreted to permit doubling or trebling the full measure of compensable damages for tortious injury to property. 3 (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 643, 199 Cal.Rptr.3d 705 (Salazar ); Heninger v. Dunn (1980) 101 Cal.App.3d 858, 861, 162 Cal.Rptr. 104 (Heninger ).) “The measure of damages in California for tortious injury to property is ‘the amount which will compensate for all the detriment proximately caused thereby….’ (Civ. Code, § 3333 .) Such damages are generally determined as the difference between the value of the property before and after the injury.” (Heninger, at pp. 861–862, 162 Cal.Rptr. 104 .) But “[d]iminution in market value … is not an absolute limitation; several other theories are available to fix appropriate compensation for the plaintiff’s loss.” (Id. at p. 862, 162 Cal.Rptr. 104 .) For example, a plaintiff may recover the costs of restoring the property to its condition prior to the injury —even if such costs exceed diminution in value—so long as there is a valid “personal reason” to do so. (Id. at p. 864, 162 Cal.Rptr. 104 ; see, e.g., Kallis v. Sones (2012) 208 Cal.App.4th 1274, 1279–1281, 146 Cal.Rptr.3d 419 [doubling not only the amount of damages determined for the tree, but also the amount awarded for restoring the property, including installation of a new tree and aftercare costs].)”
The Court in Fulle held the treble damages for timber loss can apply to annoyance and discomfort damages associated with the loss of trees. Specifically, the Court stated:
“In order to harmonize these statutes and give full effect to each, we conclude that annoyance and discomfort damages resulting from tortious injuries to timber or trees are subject to the damage multiplier under sections 733 and 3346. Where, as here, the jury finds willful and malicious conduct by the defendant, the trial court must award double damages and has discretion to award treble damages for annoyance and discomfort. (See Ostling, supra, 27 Cal.App.4th at p. 1742, 33 Cal.Rptr.2d 391 .)”
Our firm will advance all costs of the litigation against PG&E and in the event there is no recovery we are owed no costs or fees. The costs of litigation is one issue in making the decision of which lawyer to hire. In a multi-billion-dollar suit against PG&E, the expenses will be significant. Not just any law firm can afford to pay millions of dollars in costs to fight a major corporation. You should not be afraid to ask any lawyer you want to hire, “how many millions of dollars is your firm prepared to spend?”
The massive expenses is why Hansen&Miller has teamed up with a nationally known firm with access to millions of dollars and a history of spending massive amounts in costs to fight for their clients. There are very few firms in the nation with pockets deep enough to fund a protracted fight against PG&E.
Another common question or concern of clients is ‘will the expenses of the case eliminate my recovery’? There are two types of expenses. First, a client might have unique or expenses specific to them. For example, assume you lost a collection of stamps or art. An appraiser for your specific loss might need to be hired to value your claim. In this event, you would know the need for the special expense and know about it before the expense was incurred.
The second type of expense would be general expenses spread across all clients to prove common issues of PG&E liability. While we cannot know what those expenses will be, let’s make some assumptions to see what an average cost award might look like. Let’s assume there are 2000 clients and $20 million spent on common expenses. The average cost per client would be $10,000. While costs would more fairly be divided based on the size of each clients’ recovery, the average is helpful to see that expenses can be quite minimal in the scenario outlined above. The losses of most clients would dwarf these average expenses. Thus while expenses is an issue you should be aware of, it is no more predictable than the amount of a potential recovery. Holding those accountable who burned down your house and seeking justice is important. If you have other issues you wish to learn about, do not hesitate to call. We are here to answer any questions or concerns you have, just give us a call at 707-575-1040.
* This information is provided to supply relevant information concerning the PG&E lawsuits, and should not be received as legal advice. If you are already represented by legal counsel please rely upon them for information and advice. No guarantees or representations about the success of the PG&E lawsuits can be draw from this information. You can call Hansen&Miller to get your questions answered at 707-575-1040.
Hansen&Miller is a local Sonoma County law firm with decades of experience. Monte Hansen has been trying cases in Sonoma County for almost 40 years. There are few attorneys with this many years of local experience. Roy Miller has been trying cases for over 20 years. Monte and Roy were both prosecutors in Northern California before starting their civil law practices. John Cox of the Law Offices of John Cox was also a former prosecutor, whose family home burned in the Oakland Hills Fires.
Roy Miller’s family home burned in the Tubbs Fire. He has been dealing with the same insurance and rebuilding issues, which face your family and friends.
Banyan Parker is a local Santa Rosa attorney who grew up here and went to law school in Santa Rosa. She has many friends who experienced the wrath of these fires and knows what you are dealing with in these troubling times.
By hiring a local law firm you will help keep legal fees local. The more money we can keep local the better for the long-term rebuilding of Sonoma, Napa, and Mendocino Counties. Please consider hiring local and keeping as much money local as you can.
Hansen&Miller is not filing claims in San Francisco like most firms are doing. We believe in local justice; we believe in local juries; we believe our local communities and not the fine folks in San Francisco should decide these cases. PG&E is headquartered in San Francisco. Make sure to ask where your claim will be filed? We believe local Judges and local juries know what our community has been through. If you want local justice call 575-1040.
The Press Democrat announced in mid-November 2017 that PG&E plans to cut down 25,000 burned trees near or in, its right of ways. If you drive around the area, you can’t help but see PG&E feverishly cutting down trees. The obvious questions are: Why did PG&E wait until after the devastating fires to cut down 25,000 trees? and Why are there 25,000 trees in and near the right of ways in the first place?
PG&E claims it is cutting down burned trees, but if you drive around and look you will find they are also cutting down thousands of unburned trees. Should these trees have been cut down before the fires, are they being removed now to conceal evidence?
The real question is why are there 25,000 trees which PG&E had the ability to cut before the fires, which are only now, over a month after the fires, being cut down? There are tens of thousands of trees which are currently a threat to power lines which only now, after the fires, PG&E is having removed. Trees tall enough and large enough to have limbs or trunks fall into power poles or lines are a danger. Trees and brush under power lines are a source of fuel. If a live line falls to the ground and trees or brush are under the line, then there is fuel to start a wildfire. PG&E should make sure power lines and poles can’t be knocked to the ground. PG&E should make sure if a power line or pole is knocked down that the lines are not energized. Energized power lines on the ground create an ignition source. PG&E should also make sure there is no source of fuel under its lines as a fire needs both ignition and fuel to turn into a wildfire.
The California PUC has many regulations and rules which require a utility like PG&E which owns powerlines to keep the lines safe from tree strikes and to prevent fires. We know in many of the October 2017 fires, trees fell into PG&E power lines. PG&E has self-reported, because the PUC rules require it, that trees fell across PG&E lines. Energized power lines are dangerous, and a downed power line which is energized is a certain danger. So why do you think PG&E is cutting down trees now, after the fires?
There are lawyers from Washington D.C. to Florida and San Diego to San Francisco hunting for clients in our town. While the number of lawyers involved should give you some idea of the confidence the lawyers have for suing PG&E, but how do you choose a lawyer?
Unlike lawyers opening mail stops in Santa Rosa, Hansen&Miller is an actual local firm and has been here for decades. Monte Hansen has practiced law in Santa Rosa since the 1970’s, and before that Monte was a local deputy sheriff and a prosecutor. Roy Miller has over 2 decades of experience, and his family home of over 10 years in Santa Rosa burned in the fires. Banyan Parker grew up here in Santa Rosa and went to law school in Santa Rosa. We are a local firm committed to rebuilding our local communities.
The fee agreement will list the names of each firm receiving a share of your legal fees. IF you have to pay a lawyer a share of your recovery, then you should keep as much of that money local as you can. Thus you should ask for EACH firm name on the contract:
You should not be rushed by anyone to make a decision. You may (or may not) be ready to hire a lawyer to sue PG&E, but if and when you are, here are the questions to consider asking:
The dozens of ‘not from’ Sonoma County lawyers advertising to you are from: Florida, Connecticut, Washington D.C., Texas, Santa Monica, San Jose, San Francisco, San Diego, and other places. If and when you are ready to hire a lawyer, please consider my local law firm because:
If you are ready to seek justice now against PG&E, then we would be honored to represent you. You can call our local firm at 707-575-1040 for a free appointment or visit www.FireJustice.com. We have a contingency fee for the PG&E claims, so we only get a one-third share of the recovery from those who caused the fire, and we do not collect a fee unless we recover for you. If we recover nothing for you, then you owe us no costs or fees. You have our deepest condolences and please, Stay Strong!
* This information is provided to supply relevant information concerning the PG&E lawsuits, and should not be received as legal advice. If you are already represented by legal counsel please rely upon them for information and advice. No guarantees or representations about the success of the PG&E lawsuits can be drawn from this information
Our local Santa Rosa law firm is filing claims for our clients locally rather than in San Francisco. As of late November 2017, all the firms except ours are filing claims in San Francisco. We believe in local justice for local clients. We believe, if the cases do not settle, that local clients should have local juries decide their cases. The fire survivors have been inconvenienced enough and should not be inconvenienced by their lawyer forcing them to travel to San Francisco for their case.
If we file your claim locally, then we can seek a local jury before a local judge. We believe local juries will know best what you and your family have been through. Your neighbors have seen the devastation and seen what these fires have done to our community. Who better to decide your claim than a local Judge and Jury? Thus we file local clients’ claims locally.
We also believe it is good for rebuilding our community to have the expenses of the thousands of lawsuits spent locally and not in San Francisco. We also believe paying part of the contingency fee to local law firms will help keep the money local. We are committed to spending locally the expenses of these cases. We want our local economy back. We want our community back. We want our local jobs back. We want our neighborhoods back. We are committed to rebuilding our towns.
On November 2, 2017, in the Press Democrat, a Houston law firm announced a motion to consolidate all the fire cases in San Francisco. We are opposing that motion. The lawyer announced one of the reasons they wanted the cases coordinated in San Francisco, was for the convenience of the lawyers because it was easier to fly into SFO and they have nice hotels for the lawyers. Conveniencing the lawyers and inconveniencing the victims is in a word, stupid. That lawyers have to travel to where their clients live and spend time and money near their clients is a good thing. Of course, you can alleviate those out of area lawyer’s concerns by not hiring them. Consider choosing a lawyer who lives in the area.
Consider choosing a lawyer who has lived here for decades. Hire local!
If you are not ready to make the decision yet, then please consider our Santa Rosa based law firm when you do make your decision. If you are ready to seek justice now against PG&E, then we would be honored to represent you. You can call our local firm at 707-575-1040 for a free appointment or visit www.FireJustice.com. You have our deepest condolences and please, Stay Strong!
* This information is provided to supply relevant information concerning the PG&E lawsuits, and should not be received as legal advice. If you are already represented by legal counsel please rely upon them for information and advice. No guarantees or representations about the success of the PG&E lawsuits can be draw from this information
According to the October 17, 2017, Press Democrat, “The explosive failure of power lines and other electrical equipment has regularly ranked among the top three singular sources of California wildfires for the last several years.” For example, “In 2015, the last year of reported data, electrical power problems sparked the burning of 149,241 acres- more than twice the amount from any other cause.”
The above data does not include the October 2017 fires which more than double these tragic losses. Electric lines are the single most dangerous fire risk to our communities and families in California. The known risks of electric lines have been known since the dawn of powerlines in the early part of the last century.
There are a number of sources of fire ignition from powerlines and equipment. First, consider the known risk of fire from the drought for the last 5 years. We have seen other fires before the October 2017 fires since the drought began, so the added and increased danger these last few years was a foreseeable and known danger.
If a power pole is not properly maintained, they can collapse in winds or if struck by a tree. This results in a live power line going to the ground which creates a known fire danger. If a tree falls into wires and either causes wires to cross or causes lines to be knocked to the ground, then this will also create a known fire danger. A tree limb can also fall across power lines causing them to break or cross and create the same fire risk. Trees can also fall into transformers and cause damage which results in fire danger.
The above-known fire risks will be increased in drought conditions and if a utility fails to clear the trees, brush and ‘fuel’ under the powerlines, this will also increase the risk of a fire taking hold. A utility can be responsible for failing to maintain trees or failing to clear the fuel source under the lines.
There can also be an increased fire risk if power lines are not de-energized as soon as they fall. A conductor or line on the ground with no power reduces or eliminates the fire risk. There is also some equipment which can surge power to a downed line, and such equipment can also cause fires. Fire danger is a known risk of downed power lines and electrical equipment.
The California PUC regulates utilities to attempt to reduce fire risks. In addition to the CPUC rules, there are other laws in California which require utilities to reduce or eliminate fire risks.
Whether you have insurance or do not have insurance, you have no doubt discovered that you have more losses than insurance covers and many losses that can never be replaced. Insurance will at best cover only part of your losses if you have insurance.
General categories of losses include:
Some losses are obvious, like the cost to rebuild a home. However, even rebuilt a home may have a lower value due to the appearance of the neighborhood and loss of trees and vegetation. If you choose not to rebuild, your lot may have a decrease in value due to the fires, and this would also be a loss.
Additional living expenses may only last 2 years under some insurance policies and people may not be able to rebuild in that time frame. The lack of materials, building crews, and other building professionals may delay rebuilding. Thus some people may be forced to relocate and incur moving expenses.
Personal property, i.e. the stuff in your home or apartment, often has value not covered by insurance. We all have irreplaceable photos and family heirlooms, collections, and other items which will not be valued fully or covered by insurance. Limitations in some insurance policies will cap the value your insurer will pay. However, caps on insurance are irrelevant as to what can be recovered in
Court or by settlement. You will need to make a detailed list of all such property. Simply, because insurance may not pay for the item does not mean that you cannot recover the full or fair value of the loss in Court.
Also, consider collecting photos from friends and family to confirm what personal property you owned. Such photos may also help demonstrate the value of your house or other property damaged like yards, landscaping, pools, or children’s play areas. Additionally, any video you have which shows the property before and after the fire is very useful.
For business owners, tax record or profit and loss statements will be useful to prove loss of income if your business was disrupted. Similarly, if your business was damaged by the smoke or fire, in addition to repair expenses you likely have lost income. Again document everything as you cannot have too much proof of any of your losses. Additionally, just because insurance may not cover a loss does not mean that those losses are not recoverable in Court or by settlement.
PG&E has a history of causing fires and burning down homes. In fact, there are a number of cases brought before the California Supreme Court involving claims against PG&E. Irelan-Yuba Gold Quartz mining Co. V. Pacific Gas & Electric Co., 116 P.2d 611 (Cal. 1941); Beresford V. Pacific Gas & Electric Co., 290 P.2d 498 (Cal. 1955). In the 1990 Campbell fire in Tehama County, PG&E burned over 125,892 acres and 27 structures. In 1994, in the Nevada County fires PG&E caused a large fire which lead to PG&E being criminally convicted for failing to trim trees and 34 structures burning. In 2015, PG&E caused the Butte fires and burned 921 structures.
Other fires caused by electric lines include the 1923 Berkeley fire, the 1970 Laguna fire, the 1990 Campbell fire, the 2007 San Diego fires, the 2007 Malibu fire, the Rice fire in 2007, the Butte fire in 2015, and the October 2017 North Bay fires. Electric lines are known sources of ignition for major fires.
In one example of a more extreme case, San Diego Gas & Electric paid out more than $2 billion to insurance companies, governmental agencies, homeowners, business owners, and others who suffered damage in 2007 when sparking power lines ignited brush in a remote area and started three major fires. The fires resulted in two deaths and the destruction of more than 1,200 homes and businesses. SDG&E conceded it was their equipment that sparked some of the blazes, but never admitted liability.
In 2007, the Malibu fires that burned more than a dozen structures were caused by Southern California Edison utility poles that fell during heavy winds; they paid $63.5 million in fines.
PG&E has been sued by over 100 people, as of early November 2017, who contend PG&E burned their homes and businesses. The California Public Utility Commission has also directed PG&E to preserve trees, conductors, and other equipment and evidence which suggests the origin of the fires. The 911 calls indicated PG&E powerlines were downed in the area of fires.
In 1994, PG&E was found guilty of 739 counts of negligence and fined nearly $30 million by state regulators when trees touched its high-voltage wires in Nevada County in the Sierra foothills, sparking a fire near the town of Rough and Ready that destroyed 12 homes and a 19th century schoolhouse. Afterward, prosecutors found that PG&E had diverted nearly $80 million from its tree-cutting programs into profits.
In April of this year, the CPUC fined PG&E for its role in the Butte Fire in 2015, which destroyed 549 homes and killed two people in a fire that burned for 22 days, charring 70,868 acres of land. PG&E ended up paying an $8.3 million fine to the California Public Utilities Commission and $90 million to Cal Fire to cover firefighting costs. More than 1,000 lawsuits and claims are still pending against the utility.
PG&E was also fined previously for it’s failure to properly maintain its natural gas lines, leading to the 2010 San Bruno explosion. Eight people died in the explosion, which destroyed 38 homes. The company was fined $1.6 billion by the CPUC, and a federal jury convicted the company on five charges of violating federal pipeline safety regulations and one charge of obstructing an official National Transportation Safety Board probe into the blast.
The CPUC regulates electric, natural gas, telecommunications, water, railroad, rail transit, and passenger transportation companies. The CPUC serves the public interest by protecting consumers and ensuring the provision of safe, reliable utility service and infrastructure at just and reasonable rates, with a commitment to environmental enhancement and a healthy California economy. Find out more about them HERE.
The CPUC has directed PG&E to preserve evidence concerning the cause of the California fires. The PUC also has many regulations which require PG&E to trim trees, maintain the right of ways, maintain its equipment, and to protect the public. The PUC also notified PG&E about fire danger created by the California drought conditions.
No, they are not. A class action has a single person or a couple of people who bring claims on behalf of a large group with similar issues. Class actions are not appropriate for large fire loss cases as the losses are individual to each person and one class representative’s damages would tell you nothing about another person’s losses as everyone has unique losses. Some people lost personal property, some lost a home, some lost a rental property, some lost a business, some lost a job, and some businesses were not hit by the fire but they lost revenues due to disruptions or loss of customers.
Thus rather than a class action, the claims against PG&E will be individual claims brought by those affected by the fires. Large groups of similar, individual claims are sometimes called mass actions or mass tort claims. If you decide to engage our firm to file a claim for your losses against PG&E, then an individual claim will be filed for you.
Pacific Gas and Electric Company, is the largest utility in California and was incorporated in California in 1905. It is one of the largest combined natural gas and electric energy companies in the United States. Based in San Francisco, the company is a subsidiary of PG&E Corporation, which is a publically traded company. The public share price of PG&E crashed on news that its powerlines and equipment could be to blame for the devastating wildfires in Northern California.
PG&E has 20,000 employees who carry out Pacific Gas and Electric Company’s business of the transmission of gas and electricity. PG&E provides natural gas and electric service to approximately 16 million people throughout a 70,000-square-mile service area in northern and central California. As a utility, even though it has private shareholders, PG&E is regulated by the Public Utility Commission.
Find out more about them HERE.
The California Public Utilities Commission (CPUC) has notified PG&E to keep and records and equipment which could provide evidence relating to the cause of the fires. The CPUC has also made a lot of information about PG&E public.