Nicholson v. Southern California Edison CA2/7

Filed 6/22/21 Nicholson v. Southern California Edison CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JASON NICHOLSON et al., B302287

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC655801)
v.

SOUTHERN CALIFORNIA
EDISON CO.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Ramona G. See, Judge. Reversed.
Parris Law Firm, Alexander R. Wheeler, Jonathan W.
Douglass and Ellery S. Gordon for Plaintiffs and Appellants.
LimNexus, Irwin S. Evans, David D. Yang; Leon Bass, Jr.
and Carla Margolis Blanc; Greines, Martin, Stein & Richland,
Robin Meadow, Cynthia E. Tobisman, and Eleanor S. Ruth for
Defendant and Respondent.
 INTRODUCTION

Southern California Edison Company (SCE) hired
Hampton Tedder Electric Company to perform maintenance on
an underground residential distribution switch, known as a
BURD switch, owned by SCE. During the job there was an
electrical arc flash that burned two Hampton Tedder employees,
Jason Nicholson and Alim Hafiz. Nicholson and Hafiz sued SCE,
asserting causes of action for negligence and for violation of a
statute in the Public Utilities Code. The trial court granted
SCE’s motion for summary adjudication on each of Nicholson and
Hafiz’s causes of action and, therefore, summary judgment. The
court ruled Nicholson and Hafiz failed to raise a triable issue of
material fact on whether SCE caused the arc flash and therefore
contributed to Nicholson’s and Hafiz’s injuries. Because SCE did
not meet its initial burden to show it did not contribute to
Nicholson’s and Hafiz’s injuries, and because (even if it had)
Nicholson and Hafiz created triable issues of material fact, we
reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. SCE Hires Hampton Tedder To Perform Maintenance
on a BURD Switch
SCE hired Hampton Tedder to perform electrical line
maintenance as needed. In a contract titled “Master Services
Agreement,” Hampton Tedder agreed to “assume[ ] all risks
pertaining to performing [s]ervices” at jobsites and to assume all
responsibility “for the safety and health of personnel and the
prevention of [i]ndustrial accidents . . . arising out of the
performance of the [s]ervices.”

2
 Nicholson and Hafiz were journeyman linemen employed
by Hampton Tedder.1 Hampton Tedder assigned a crew that
consisted of Nicholson (the foreman), Hafiz, and a few others to
remove a set of electrical cables that connected one SCE BURD
switch to another switch. A BURD switch is a console that sends
voltage to other components, such as a transformer or another
BURD switch. It is placed underground in an enclosed space,
like this:

1 “Journeyman linemen are responsible for tasks including
identifying inoperable power cables, digging up and repairing
inoperable power cables, climbing power lines, and replacing
broken poles. . . . Most of this work is performed around live
power lines . . . .” (Sanders v. Georgia Power Company (N.D.Ga.
Feb. 17, 2010, Civ. A. No. 1:08-CV-2302-ODE) [2010 WL
11506774, p. 1].)

3
 The job took several days. On the first day SCE de-
energized the BURD switch to allow the Hampton Tedder crew to
disconnect the cables from the switch. After disconnecting the
cables, the crew grounded the cables to ensure they were not
energized and installed dummy elbows—insulating caps—on the
three exposed bushings on the BURD switch where the cables
had been connected.2 The crew, however, did not remove the
disconnected, de-energized cables from the enclosure. After the
crew completed this work, SCE re-energized the BURD switch.

B. An Arc Flash Explosion Injures Nicholson and Hafiz
Nicholson and Hafiz returned a week later to remove the
disconnected cables from the enclosure. When they arrived,
Nicholson tested the cables and confirmed they were de-
energized. At some point, while Hafiz was in the enclosure and
Nicholson was standing a few feet away, the arc flash occurred.3
Hafiz later explained that, while he was standing on the
pavement above the enclosure, he bent forward, reached into the
enclosure, and began pulling on a cable to loosen it. He lost his
balance, fell into the enclosure, and hit the BURD Switch with
his feet. The arc flash occurred immediately.

2 “A bushing is the conduit through which electrical current
flows.” (Electric Power Systems International, Inc. v. Zurich
American Ins. Co. (8th Cir. 2018) 880 F.3d 1007, 1009.)

3 An arc flash occurs when a short circuit or other electrical
event produces conductive gas in the air that has current flowing
through it. The “normally insulating air breaks down and
becomes a conductor of electrical current,” which results in “very
high temperatures close to the arc, erosion and vaporization of
metal, and a pressure wave.”

4
 The arc flash burned Hafiz’s face and caused his pants,
which were not fire resistant, to catch fire. Nicholson was
wearing fire-resistant clothing, but the explosion burned his face
and hands. Nicholson, seeing that Hafiz was on fire and running
away from the enclosure, chased Hafiz, tackled him, and
smothered the flames.
Hampton Tedder investigated the incident and determined
the arc flash occurred when two dummy elbows came off their
respective bushings. Hafiz suspected he knocked them off with
his feet when he fell into the enclosure.

C. Nicholson and Hafiz Sue SCE, and SCE Moves for
Summary Judgment
Nicholson, Hafiz, and their spouses sued SCE for
negligence (in three causes of action based on different theories:
breach of a nondelegable duty, retained control, and failure to
warn), violation of Public Utilities Code section 2106,4 and loss of
consortium. Nicholson and Hafiz alleged, among other things,
SCE “negligently and carelessly supplied dangerous and faulty
equipment” and failed to make sure “the energized parts” of the
BURD switch “were covered with suitable protective equipment”
and “had adequate protective devices.”
SCE moved for summary judgment or in the alternative for
summary adjudication on all of the causes of action in the

4 Public Utilities Code section 2106 provides a private right
an action for a person injured by “a[ny] public utility which does,
causes to be done, or permits any act, matter, or thing prohibited
or declared unlawful, or which omits to do any act, matter, or
thing required to be done” by any state law or Public Utilities
Commission order.

5
complaint. With respect to the three negligence causes of action,
SCE contended Nicholson and Hafiz could not show SCE caused
or contributed to their injuries because it was undisputed that
“[n]one of [SCE’s] electrical distribution equipment
malfunctioned or failed in any way to cause or contribute to the
arc flash . . . .” SCE relied on a declaration submitted by its
expert, John Loud, who reached this conclusion after reviewing
Hafiz’s testimony and other evidence. SCE also argued Privette
v. Superior Court (1993) 5 Cal.4th 689 (Privette) barred the
negligence causes of action. SCE contended that, as a matter of
law, it could delegate all of its duties to maintain safe working
conditions to Nicholson’s and Hafiz’s employer, Hampton Tedder.
SCE also argued it did not retain control over the safety
conditions at the job site because it was undisputed Hampton
Tedder “provided [Nicholson and Hafiz] with all safety equipment
to be used” for the job. And SCE contended it did not have a duty
to warn Nicholson and Hafiz of any dangers associated with
working on the BURD switch because it was undisputed
Nicholson and Hafiz were “sophisticated electrician journeyman,”
each with “over 15 years of experience as electricians.” With
respect to the cause of action for violation of Public Utilities Code
section 2106, SCE contended the regulatory violations Nicholson
and Hafiz relied on were allegedly violations of duties SCE owed
to its employees, not to employees of independent contractors like
Nicholson and Hafiz.
In opposition to the motion Nicholson and Hafiz disputed
SCE’s assertion that none of its equipment malfunctioned.
Nicholson and Hafiz submitted the deposition testimony of Byron
Redd, a superintendent of line construction for Hampton Tedder
who investigated the incident, and Gary Leatherwood, a project

6
supervisor for SCE who oversaw independent contractors and
whom SCE designated as its person most qualified to testify
about the equipment involved in the accident. Both Redd and
Leatherwood testified that SCE supplies equipment like dummy
elbows to Hampton Tedder for use on its systems and that the
purpose of a dummy elbow is to cover a high voltage bushing so
the bushing is not exposed. Leatherwood also stated a
functioning dummy elbow is difficult to remove and should not
dislodge if a person bumps into it.
Nicholson and Hafiz also argued, in opposition to SCE’s
motion for summary adjudication on both the causes of action for
negligence and the cause of action for violation of Public Utilities
Code section 2106, that certain regulations and Public Utilities
Commission orders precluded SCE from delegating its duties to
Hampton Tedder. They argued SCE’s failure to comply with
those rules and orders caused the arc flash and contributed to
their injuries. Nicholson and Hafiz also argued SCE retained
control over the project and negligently exercised that control by,
among other things, furnishing them with defective dummy
elbows.5

D. The Trial Court Grants the Motion
The trial court ruled SCE met its initial burden on
summary judgment because Loud’s testimony showed “SCE did
not cause or contribute to the arc flash.” The court ruled that the
opinions of Redd, Hafiz, and Nicholson regarding the arc flash
were “speculative” and “conclusory” and that they did not

5 Nicholson and Hafiz did not address SCE’s motion for
summary adjudication on their negligence cause of action based
on failure to warn.

7
“establish their expertise and qualifications to competently opine
as experts as to the issue of legal causation.” Therefore, the court
ruled, Nicholson and Hafiz “failed to present any competent
expert evidence to controvert[ ]” Loud’s testimony and failed to
create a triable issue of fact regarding “whether SCE
affirmatively contributed to [Nicholson’s and Hafiz’s] injuries” or
whether “SCE’s equipment failed or malfunctioned in any
manner.” The court granted SCE’s motion for summary
adjudication on the cause of action for violation of Public Utilities
Code section 2106, apparently on the same ground, even though
SCE did not argue it was entitled to summary adjudication on
that cause of action on the ground SCE did not cause the arc
flash.
The court declined to rule on whether SCE had any
nondelegable duties. The court did state—without explanation
and without discussing whether SCE had met its initial burden—
Nicholson and Hafiz failed to create a triable issue of fact
regarding “whether SCE negligently retained control of the
premises.” Finally, the court ruled there was no triable issue of
fact regarding the cause of action for loss of consortium because it
was based on the other causes of action. Nicholson and Hafiz
timely appealed from the ensuing judgment.

DISCUSSION

A. Standard of Review
A court may grant a motion for summary judgment or
summary adjudication “only when ‘all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’”

8
(Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th
1168, 1179; see Code Civ. Proc, § 437c, subd. (c); Soria v.
Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 582.)
A defendant moving for summary judgment “‘“‘bears the burden
of showing the court that the plaintiff “has not established, and
cannot reasonably expect to establish,”’ the elements of his or her
cause of action.”’” (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705;
accord, Mattei v. Corporate Management Solutions, Inc. (2020)
52 Cal.App.5th 116, 122.)
Where, as here, a defendant moves for summary
adjudication on a cause of action for which the plaintiff has the
burden of proof at trial, the defendant “must present evidence
that either ‘conclusively negate[s] an element of the plaintiff’s
cause of action’ or ‘show[s] that the plaintiff does not possess, and
cannot reasonably obtain,’ evidence necessary to establish at
least one element of the cause of action. [Citation.] Only after
the defendant carries that initial burden does the burden shift to
the plaintiff ‘to show that a triable issue of one or more material
facts exists as to the cause of action . . . .’” (Luebke v. Automobile
Club of Southern California (2020) 59 Cal.App.5th 694, 702-703;
see Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 853-854.) “There is a triable
issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof.” (Aguilar, at p. 850; accord, Welborne v.
Ryman-Carroll Foundation (2018) 22 Cal.App.5th 719, 724.)
“We review a grant of summary judgment de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party as a matter of

9
law.” (Mattei v. Corporate Management Solutions, Inc., supra,
52 Cal.App.5th at p. 122; see Regents of University of California
v. Superior Court (2018) 4 Cal.5th 607, 618.) We “‘liberally
constru[e] the evidence in favor of the party opposing the motion
and resolv[e] all doubts about the evidence in favor of the
opponent.’” (Ghazarian v. Magellan Health, Inc. (2020)
53 Cal.App.5th 171, 182; see Regents, at p. 618.)

B. The Trial Court Erred in Granting SCE’s Motion for
Summary Adjudication on the Causes of Action for
Negligence
The trial court ruled there were no triable issues of
material fact regarding whether SCE caused the arc flash or
retained control over the job. Both rulings were erroneous. SCE
did not meet its initial burden on either issue, and even if it had,
Nicholson and Hafiz created triable issues of material fact on
both.

1. SCE Did Not Meet Its Initial Burden To Show It
Did Not Cause the Arc Flash
To prove negligence, “a plaintiff must allege the wrongful
act was a direct and proximate cause of the injury.”
(Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 68; see
Regents of the University of California v. Superior Court, supra,
4 Cal.5th at pp. 618, 630-631.) SCE sought to meet its moving
burden on summary judgment by negating the causation element
of the causes of action for negligence; that is, by showing it was
undisputed that nothing SCE did caused the arc flash (and
therefore contributed to Nicholson’s and Hafiz’s injuries).
As an initial matter, even if SCE had shown it did not do
anything to cause the arc flash, SCE would not have been

10
entitled to summary adjudication on the negligence causes of
action as a matter of law. Although Nicholson and Hafiz alleged
SCE was negligent in supplying defective equipment and failing
to prevent the arc flash, they also alleged SCE was negligent
because it violated various applicable government regulations
and orders that, had SCE complied with them, would have
mitigated Nicholson’s and Hafiz’s injuries. For example,
Nicholson and Hafiz alleged SCE breached duties to provide
them with suitable protective clothing for the job and to ensure
an employee with first aid training was present at the jobsite.
That SCE did not cause the arc flash would not show SCE did not
contribute to Nicholson’s and Hafiz’s injuries by breaching these
alleged duties. For this reason alone, the trial court erred in
granting summary adjudication on the negligence causes of
action. (See Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1165
[defendant failed to carry his initial burden on summary
adjudication by failing to address all theories of liability]; Lona v.
Citibank, N.A. (2011) 202 Cal.App.4th 89, 110 [“defendants failed
to meet their burden on summary judgment because their motion
failed to address all of the allegations of [the] second amended
complaint”]; Lopez v. Superior Court (1996) 45 Cal.App.4th 705,
717 [“As the party moving for summary judgment, [the
defendant] had the burden to show that it was entitled to
judgment with respect to all theories of liability asserted by [the
plaintiff].”].)
SCE also failed to make a prima facie showing that nothing
it did caused the arc flash. (See Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at p. 850 [party moving for summary
adjudication “bears an initial burden of production to make a
prima facie showing of the nonexistence of any triable issue of

11
material fact”].) Loud, SCE’s expert, opined that “[n]one of the
equipment involved in this incident malfunctioned or failed in
any way to cause this arc-flash incident.” From this isolated
statement, it looks as if SCE met its burden to show no triable
issues of material fact on causation. But looks, or at least first
glances, can deceive. When Loud stated that none of SCE’s
equipment malfunctioned, he was not talking about the dummy
elbows, the “dangerous and faulty equipment” SCE allegedly
furnished to Nicholson and Hafiz. Loud stated that “simply
removing the dummy elbows” from energized bushings “will not
cause an arc-flash incident—nothing will happen.” As Loud
explained, “[t]here will be exposed energized metal parts . . . at
the center of each bushing, but air is a good insulator and no
current will be conducted.” Loud went on to state that the arc
flash occurred after Hafiz knocked one of the dummy elbows off
the bushings, when the bonding wire of the elbow “came within
¼ inch of [the] exposed bushing.” According to Loud, “[a]ll
similar energized bushings would experience such an arc flash if
subjected to similar conditions.” Therefore, in Loud’s opinion,
there was no malfunction “at the time that [the] exposed
energized bushing was contacted by [the] grounded wire that
initiated this arc-flash . . . .” (Emphasis added.)
Thus, at best, all Loud stated in his declaration was that,
after Hafiz knocked the dummy elbows off the bushings, the
BURD switch operated as intended; i.e., after the dummy elbows
dislodged and the bushings were exposed, nothing (additional)
malfunctioned. (See Innovative Business Partnerships, Inc. v.
Inland Counties Regional Center, Inc. (2011) 194 Cal.App.4th
623, 628 [when reviewing whether the moving party met its
initial burden, “we strictly scrutinize the moving party’s

12
papers”].) That may be true, but it doesn’t get SCE very far.
Nicholson and Hafiz’s negligence causes of action were not
limited to the BURD switch or other equipment malfunctioning
at the exact moment the arc flash occurred. And as Nicholson
and Hafiz point out in their opening brief, Loud “did not explain
how the elbow[s] could be dislodged without an equipment
malfunction.” Loud, who never physically examined the dummy
elbows, did not discuss whether the elbows functioned properly or
whether they should have stayed on the bushings when Hafiz
kicked them. Because SCE did not make a prima facie showing
that none of its equipment caused the arc flash, the burden never
shifted to Nicholson and Hafiz to raise a triable issue of material
fact.

2. SCE Also Did Not Meet Its Burden To Show It Did
Not Retain Control of the Job
As discussed, the trial court also ruled (unattached to a
discussion of any particular cause of action, but probably in
connection with the negligence cause of action based on retained
control) that Nicholson and Hafiz failed to create a triable issue
of material fact regarding whether SCE retained control of the
job premises. The trial court erred again; SCE did not meet its
burden on this issue either.
“[A] hirer is liable to an employee of an independent
contractor insofar as the hirer’s provision of unsafe equipment
affirmatively contributes to the employee’s injury.” (McKown v.
Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 222.) Nicholson and
Hafiz alleged SCE provided them dangerous or defective tools
and equipment that caused the arc flash; in particular, the
dummy elbows.

13
 To meet its moving burden, SCE attempted to show that
Hampton Tedder provided Nicholson and Hafiz “with all safety
equipment” to use at the jobsite. SCE relied on the deposition
testimony of Leatherwood and Sean Holmes, Hampton Tedder’s
safety coordinator. But neither witness’s testimony showed that
SCE did not provide any tools or equipment to Nicholson and
Hafiz. Leatherwood testified SCE, not Hampton Tedder,
generally provided the materials a worker needed to perform a
job for SCE, including “elbow connectors.” Leatherwood did state
that contractors must provide (other) “safety equipment,” but
Nicholson and Hafiz did not allege SCE only provided defective
“safety equipment” (as Leatherwood used the term); they alleged
that SCE provided dangerous tools and equipment. (See Port
Medical Wellness, Inc. v. Connecticut General Life Ins. Co. (2018)
24 Cal.App.5th 153, 169 [“The pleadings determine the issues to
be addressed by a summary judgment motion.”].) Nor did
Holmes’s testimony negate Nicholson and Hafiz’s allegation.
Holmes did state Hampton Tedder provided employees with
personal protective equipment, but he did not state that SCE did
not provide other types of tools and equipment for a job.

3. In Any Event, Nicholson and Hafiz Created
Triable Issues of Material Fact on Causation and
Retained Control
Even if SCE had met its initial burden to show that none of
its equipment malfunctioned and that it did not supply any tools
and equipment used for the job, Nicholson and Hafiz created
triable issues of fact on both issues. As discussed, Leatherwood
testified at his deposition SCE generally provided things like
elbow connectors to use on its electrical equipment. And when

14
counsel asked Redd whether the Hampton Tedder crew received
the dummy elbows installed on the BURD switch from SCE,
Redd responded that SCE supplied all materials used on SCE
systems.
Turning to whether the dummy elbows malfunctioned,
Nicholson and Hafiz created triable issues of material fact
regarding whether the elbows failed to perform as expected. A
plaintiff “may prove the existence of a defect by showing that ‘the
product failed to perform as safely as an ordinary consumer
would expect when used in an intended or reasonably foreseeable
manner.’” (Demara v. The Raymond Corp. (2017) 13 Cal.App.5th
545, 553-554; see Barker v. Lull Engineering Co. (1978) 20 Cal.3d
413, 432.)6 There was no dispute the purpose of a dummy elbow
is to cover an energized bushing. Redd and Leatherwood both
stated this in their deposition testimony, and Loud confirmed a
dummy elbow is a cap used to insulate an energized bushing.
Leatherwood also testified a functioning dummy elbow is very
difficult to remove and should not come off if bumped or hit with
a small amount of force.
Nicholson and Hafiz testified the Hampton Tedder crew
installed the dummy elbows on the bushings the first day of the
job. Hafiz testified that, before he fell into the enclosure, all of
the dummy elbows were still on the bushings and that, when he

6 As stated, in McKown v. Wal-Mart Stores, Inc., supra,
27 Cal.4th 219 the Supreme Court held a hirer is liable to an
employee of an independent contractor if the hirer provides
“unsafe equipment” that contributes to the employee’s injury.
(Id. at p. 222.) SCE argues the employee must show a product
defect. Although it is not clear this is the standard under
McKown, we assume, without deciding, Nicholson and Hafiz had
to show a product defect.

15
fell into the enclosure, his feet hit the top of the BURD switch
(where the elbows were). Loud agreed Hafiz most likely knocked
off a dummy elbow with his foot immediately before the arc flash
occurred. And both Hampton Tedder’s investigative report and
Loud in his declaration explained the arc flash occurred because
the dummy elbows dislodged from the bushings. In light of this
evidence, a factfinder could reasonably find that the dummy
elbow failed to perform as reasonable users of the elbows, like
Redd and Leatherwood, would expect and that SCE contributed
to the arc flash by providing the defective elbow. (See Welborne
v. Ryman-Carroll Foundation, supra, 22 Cal.App.5th at p. 724
[triable issue of material fact exists if “‘the evidence would allow
a reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion’”]; Johnson v. United States Steel Corp.
(2015) 240 Cal.App.4th 22, 32 [“Where a product is in such
‘specialized use’ that the general public is not familiar with its
safety characteristics, a manufacturer may still be liable if ‘the
safe performance of the product fell below the reasonable, widely
shared minimum expectations of those who do use it.’”].)
The trial court ruled that the testimony of Nicholson, Hafiz,
and Redd regarding the cause of the arc flash was “speculative”
and “conclusory” and that, even though according to SCE
Nicholson and Hafiz were “sophisticated” electrical workers, they
failed to “establish their expertise and qualifications to
competently opine as experts as to the issue of legal causation.”
It is not clear which part of their testimony the trial court found
speculative and conclusory. But to the extent the court excluded
Nicholson’s and Hafiz’s testimony that the Hampton Tedder crew
installed dummy elbows or Hafiz’s testimony that the elbows
were still installed when he fell into the enclosure and kicked the

16
BURD switch, the trial court erred.7 The testimony of both
witnesses was based on their personal observations. (See Evid.
Code, § 702; People v. Lewis (2001) 26 Cal.4th 334, 356 [witnesses
may testify where they have “personal knowledge of the subject of
the testimony, i.e., ‘a present recollection of an impression
derived from the exercise of the witness’ own senses’”].)
Moreover, Loud confirmed Hafiz likely kicked the dummy elbows
off, causing the sequence of events that led to the arc flash. The
cause of the arc flash was not in dispute for purposes of the
motion for summary adjudication.
To the extent the trial court excluded Redd’s (or
Leatherwood’s)8 testimony regarding the intended function of the
dummy elbows, the trial court also erred. “‘A person is qualified
to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an
expert on the subject to which his testimony relates.’” (Chavez v.
Glock, Inc. (2012) 207 Cal.App.4th 1283, 1319; see Evid. Code,

7 The California Supreme Court has not decided whether a
trial court’s evidentiary rulings on a motion for summary
judgment are reviewed de novo or for an abuse of discretion. (See
Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [declining to
decide the issue]; Orange County Water Dist. v. Sabic Innovative
Plastics US, LLC (2017) 14 Cal.App.5th 343, 368 [“[c]ourts are
split regarding the proper standard of review for the trial court’s
evidentiary rulings in connection with motions for . . . summary
adjudication”].) But even under the more deferential abuse of
discretion standard, the trial court erred.

8 The trial court did not explicitly rule that Leatherwood’s
testimony was also speculative or conclusory, but it does not
appear the court considered his testimony.

17
§ 720, subd. (a).) “The determinative factor is whether the expert
‘has sufficient skill or experience in the field so that his [or her]
testimony would be likely to assist the jury in the search for the
truth.’” (Chavez, at p. 1319.)
Both Redd and Leatherwood had sufficient experience
working as electrical lineman to give an opinion on how a dummy
elbow should function. Redd had over 20 years of experience as a
lineman, troubleman,9 and distribution operation center
supervisor. His job included overseeing safety for SCE line
construction crews. Leatherwood had worked for SCE for over 30
years, including as a journeyman lineman. Leatherwood’s job
primarily involved overseeing the electrical work of contractors.
Redd and Leatherwood gave opinions about how a familiar, fairly
uncomplicated piece of electrical equipment should function.
They had sufficient skill and experience to give such an opinion.
(See Grafilo v. Soorani (2019) 41 Cal.App.5th 497, 510 [“‘The
competency of an expert “is in every case a relative one, i.e.
relative to the topic about which the person is asked to make his
statement.”’”]; ABM Industries Overtime Cases (2017)
19 Cal.App.5th 277, 294 [“‘Expertise . . . “is relative to the
subject,” and is not subject to rigid classification according to

9 Troublemen are a utility company’s first responders, often
sent to assess whether there are any hazards with power lines.
“The title is apt: a troubleman’s job is to answer customer
complaints, check on downed wires, car pole accidents, structure
fires, etc., as well as doing ‘high voltage switching, clearing lines
for crews to work on, . . . do the turn-ons and turn-offs when
people move . . . maintain the substations, keep the voltage
regulation within the proper limits, and usually anything else
anybody can think of.’” (Fong v. Pacific Gas & Electric Co. (1988)
199 Cal.App.3d 30, 33, fn. 3.)

18
formal education or certification.’”]; People v. King (1968)
266 Cal.App.2d 437, 443 [“‘any person who has special
knowledge, skill or experience in any occupation, trade or craft
may be qualified as an expert in his field’”]; see, e.g., Mize v.
Atchison, T. & S. F. Ry. Co. (1975) 46 Cal.App.3d 436, 455
[accident engine foreman who had seen multiple railroad
derailments could opine on the cause of a derailment]; Hyman v.
Gordon (1973) 35 Cal.App.3d 769, 774 [experienced firefighter
could give an opinion on whether the design of a water heater in
a home constituted a fire hazard, even though he was “not a
plumbing or building expert”].)10

C. The Trial Court Erred in Granting SCE’s Motion for
Summary Adjudication on the Cause of Action for
Violation of Public Utilities Code Section 2106
The trial court granted summary adjudication on the cause
of action for violation of Public Utilities Code section 2106 based
on its mistaken ruling SCE had shown there were no triable

10 Although SCE argues several of Nicholson and Hafiz’s
theories of liability are barred by the Privette doctrine, SCE
makes this argument only in response to arguments by Nicholson
and Hafiz in their opening brief. SCE does not argue we should
affirm the judgment based on Privette, a ground the trial court
did not rely on. (Cf. Wolf v. Weber (2020) 52 Cal.App.5th 406, 410
[we may “affirm the trial court’s decision if it is correct on any
ground the parties had an adequate opportunity to address in the
trial court, regardless of the reasons the trial court gave”].)
Indeed, SCE admits on appeal that it owed some duties to
Nicholson and Hafiz, including the duty “to provide non-defective
elbows and to perform an inspection [of the BURD switch] that
fell within the standard of care,” and that “the Privette doctrine
does not change the analysis” and is “besides the point.”

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issues of material fact regarding whether SCE caused the arc
flash. As discussed, the latter ruling was erroneous; therefore,
the former ruling was too. In addition, SCE did not argue it was
entitled to summary adjudication on the cause of action for
violation of Public Utilities Code section 2106 because Nicholson
and Hafiz could not show causation; SCE argued it was entitled
summary adjudication because the regulations and orders
Nicholson and Hafiz claimed SCE violated applied to the
employees of SCE, not to employees of independent contractors.
And, as with their negligence causes of action, Nicholson and
Hafiz did not allege that, by violating Public Utilities Code
section 2106, SCE only contributed to their injuries by causing
the arc flash; they also alleged SCE failed to comply with
regulations and orders that would have mitigated their injuries
after the arc flash occurred.

DISPOSITION

The judgment is reversed. Nicholson and Hafiz are to
recover their costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J. FEUER, J.

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