RANCHO SANTA FE — Two Rancho Santa Fe fire survivors are among people SDG&E plans to countersue for potential costs if the utility company is found liable by a jury for the Witch Creek, Guejito and Rice fires. SDG&E was blamed last year by government agencies for the firestorms, which consumed more than 200,000 acres. More than 40 lawsuits have been filed against the utility by agencies, insurance companies, government bodies, businesses and groups of property owners.
“What we proposed is pretty common, and is a procedural step in the ongoing litigation,” SDG&E spokesperson Stephanie Donovan said. “It’s our obligation to preserve our legal rights and to ensure that SDG&E does not pay more than its share of any liability. These suits could have cost implications, not only for the company, but also for our customers.”
On Jan. 28, SDG&E submitted a draft cross-complaint to attorneys for class action plaintiffs who have filed suit against the utility for fire-related damages. The class action attorneys have rejected the utility’s request to countersue their clients. A judge will hear the matter on March 30.
Local property owners listed in the cross-complaint are Kenyon and Kathy Clark, of 16501 Zumaque Street. The document states that the Clarks and 12 other defendants from Ramona, Poway, Escondido and Fallbrook failed
to comply with government ordinances by not adequately clearing flammable vegetation around their structures. SDG&E claims that these property owners thereby contributed to the spread of the fire and so they should be held liable for damages requested by other property owners in their lawsuits against SDG&E.
Fire survivors’ attorneys say they were stunned at SDG&E’s move, which they consider a low blow.
“We were shocked,” Steven Kane, a liaison counsel for attorneys representing class action property owners, said. “This is a low-level tactic at the expense of the fire victims and the rest of the public. None of our clients has ever been cited for violations of any vegetation clearance ordinance and they’ve never been criticized by any fire agencies. Have you ever driven into Rancho Santa Fe, for example, and seen tall weeds growing around homes. I don’t think so!”
Kane called SDG&E’s move “intimidation.”
Kane said attorneys gave SDG&E representatives photos of the cleared properties during depositions. However, spokesperson Donovan said the utility company is basing its proposed cross-complaint on research such as aerial photos seen on Google Earth.
In the draft complaint, SDG&E has denied responsibility for fire-related losses or any associated costs. The company is seeking equal indemnification, attorneys’ fees and other costs of litigation, plus any other awards the court deems appropriate.
So far, only class action plaintiffs have undergone depositions; none of the people in the individual lawsuits has been questioned. Fire survivors are still coming forward to join both class action and individual cases, according to an attorney for the largest Witch Creek Fire lawsuit, Mitchell Wagner. “If they tried that with us, we would consider it purely intimidation tactics to get people to back out of a lawsuit that is a righteous and meritorious case,” Wagner said of SDG&E’s latest action. “Our clients were meticulous in keeping their properties clear of brush and overgrowth. SDG&E couldn’t prove that vegetation caused this fire; this was a wind-driven fire.”
Kane said he faxed a letter to SDG&E attorney Ken Chiate recently asking him not to file this suit.
There has been another major turn in the fire lawsuits. Judge Richard Strauss ruled that attorneys in the cases against SDG&E can proceed with their inverse condemnation claim. This relates to the question of whether the utility company can be found liable for costs based on damages from power lines designed, constructed, operated or maintained by them. “You don’t have to prove negligence with inverse condemnation,” Wagner said. “This is huge for our clients because it means that they are entitled to attorneys’ fee under this law, as well as damages.” SDG&E had filed motions to dismiss various parts of the lawsuits, including the inverse condemnation, Wagner stated.