1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SISKIYOU COUNTY, No. 2:22-cv-01582-DAD-DB 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 PACIFICORP, DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS 15 Defendant. (Doc. No. 9, 34) 16

17 18 Plaintiff Siskiyou County initiated this civil action in the Sacramento County Superior 19 Court on August 10, 2022. (Doc. Nos. 1 at 2; 1-1 at 2.) On September 8, 2022, defendant 20 PacifiCorp removed the action to this federal court. (Doc. No. 1.) Defendant filed the pending 21 motion for judgment on the pleadings on October 28, 2022. (Doc. No. 9.) Plaintiff filed its 22 opposition to the pending motion on November 11, 2022. (Doc. No. 11.) On November 21, 23 2022, defendant filed its reply thereto. (Doc. No. 12.) The pending motion was referred to the 24 United States Magistrate Judge assigned to this case for the issuance of findings and 25 recommendations pursuant to

(b)(1)(B) and Local Rule 302 on October 17, 2023. 26 (Doc. No. 28.) 27 On February 6, 2024, the magistrate judge issued findings and recommendations 28 recommending that defendant’s motion for judgment on the pleadings be denied. (Doc. No. 34.) 1 The pending findings and recommendations contained notice that any objections thereto were to 2 be filed within fourteen (14) days after service. (Id.) Defendant filed objections to the findings 3 and recommendations on February 20, 2024. (Doc. No. 36.) Plaintiff filed its response to 4 defendant’s objections on March 5, 2024. (Doc. No. 39.) 5 Defendant’s objections simply reiterate the arguments made in its motion and its reply 6 brief. (See Doc. Nos. 9, 12, 36.) Because the pending findings and recommendations addressed 7 these arguments after they were made in defendant’s motion and reply brief, and because all of 8 defendant’s arguments are foreclosed by California law, defendant’s objections provide no basis 9 upon which to reject the pending findings and recommendations. 10 In particular, the court notes the following. 11 In its objections defendant argues that it is not a public entity and that plaintiff may 12 therefore not assert an inverse condemnation claim against it. (See Doc. Nos. 9 at 13–14; 36 at 5– 13 8.) However, California law is clear that defendant is a public entity at least for purposes of an 14 inverse condemnation claim. See Gay Law Students Ass’n v. Pac. Tel. & Tel. Co.,

, 15 469 (1979) (“In California a public utility is in many respects more akin to a governmental entity 16 than to a purely private employer.”); Barham v. S. Cal. Edison Co.,

, 753 17 (1999) (holding that privately-owned public utilities “may be liable in inverse condemnation”); 18 see also Butte Fire Cases, No. JCCP4853,

, at *6 (Super. Ct. Cal. June 22, 19 2017) (“More specifically, under California law the proposition a privately-owned public utility 20 such as PG&E may be held liable for inverse condemnation is now solidly established.”)1. 21 Defendant argues that the California Supreme Court would now rule differently in light of a 22 decision issued by the California Public Utilities Commission on November 30, 2017. (Doc. 23 No. 36 at 4.) However, defendant does not cite a single decision by a California court after 24 1 Federal courts “may consider unpublished state decisions, even though such opinions have no 25 precedential value.” Employers Ins. of Wausau v. Granite State Ins. Co.,

, 1220 n.8 (9th Cir. 2003); see, e.g., Stokes v. CitiMortgage, Inc., No. 14-cv-00278-BRO-SH,

709201, at *7 (C.D. Cal. Jan. 16, 2015) (“Although Kayayan is clearly not binding as an 27 unpublished state trial court ruling, it is nevertheless persuasive authority . . . .”). In any event, given the clarity of California law on all relevant issues, the resolution of the pending motion 28 does not depend upon the consideration of the unpublished state decisions cited herein. 1 November 30, 2017 suggesting such a change in the law, nor has this court found any such 2 decision. To the contrary, California courts unanimously continue to hold that public utilities 3 such as defendant may be liable in inverse condemnation. See, e.g., S. Cal Fire Cases, 4 No. JCCP4965,

, at *3–5 (Super. Ct. Cal. Oct. 4, 2018); Wade v. S. Cal. Edison 5 Co., No. 18STCV02565,

, at *4–5 (Super. Ct. Cal. Sept. 20, 2019); 6 Grokenberger v. S. Cal. Edison Co., No. BC711795,

, at *6 (Super. Ct. Cal. 7 July 28, 2020). 8 Defendant similarly argues that plaintiff cannot assert a claim for inverse condemnation 9 because plaintiff is not a private entity (see Doc. No. 36 at 8), but defendant’s argument in this 10 regard is again squarely foreclosed by California law. See Marin Mun. Water Dist. V. City of Mill 11 Valley,

(1988) (holding that “a public entity whose property has 12 been damaged by another public entity suffers no less a taking merely because of its public entity 13 status”); see also Luboff v. S. Cal. Edison, No. BC699432,

, at *3 (Super. Ct. 14 Cal. July 28, 2020) (“[The court’s decision in Marin] that one public entity may sue another 15 public entity for inverse condemnation is binding on this court . . . .”). Defendant does not cite 16 any decision by a California court holding otherwise. 17 Defendant next argues that plaintiff has failed to sufficiently allege that damage to 18 plaintiff’s property was “substantially caused by an inherent risk presented by the deliberate 19 design, construction or maintenance of the public improvement.” (Doc. No. 9 at 18 (quoting City 20 of Oroville v. Superior Ct.,

(9th Cir. 2019)2; see also Doc. No. 36 at 5, 9.) 21 As explained in the pending findings and recommendations (see Doc. No. 34 at 9–10), however, 22 the allegations in plaintiff’s complaint are sufficient to plead “substantial causation” and 23 “inherent risk” and to survive at motion to dismiss. See Oroville,

; see also

24 at 1107 (“If the public entity makes a policy choice to benefit from the cost savings from 25 declining to pursue a reasonable maintenance program, for instance, inverse condemnation 26

27 2 In support of this contention, defendant argues that “the County does not allege any facts to show that merely constructing ‘exposed’ powerlines in dry, vegetated areas creates an ‘inherent 28 risk’ of wildfire.” (Doc. No. 9 at 22.) 1 | principles command ‘the corollary obligation to pay for the damages caused when the risks 2 || attending these cost-saving measures materialize.’”) (citation omitted).° 3 Finally, defendant argues that plaintiff has failed to allege that the property damage itself, 4 | rather than the provision of electricity, was sufficiently connected to a public use. (Doc. Nos. 9 at 5 | 23-25; 36 at 10-11.) Defendant’s argument is again squarely foreclosed by California law. See 6 | Barham,

(“[C]ondemning private property for the transmission of 7 | electrical power is a public use and inverse condemnation will apply.”). 8 In accordance with the provisions of

(b)(1)(C), this court has conducted a 9 | de novo review of the case. Having carefully reviewed the entire file, including defendant’s 10 | objections, the court concludes that the findings and recommendations are supported by the 11 | record and by proper analysis. 12 Accordingly: 13 1. The findings and recommendations issued on February 6, 2024 (Doc. No. 34) are 14 adopted in full; and 15 2. Defendant’s motion for judgment on the pleadings (Doc. No. 9) is denied. 16 IT IS SO ORDERED. 'T Dated: _Mareh 12, 2024 Da A. 2, ye 18 DALE A. DROZD 19 UNITED STATES DISTRICT JUDGE

20 21 22 23 24 25 26 | Defendant argues that plaintiff does not expressly allege in its complaint any such policy choice 27 | to benefit from cost savings. (See Doc. Nos. 12 at 8; 36 at 5.) Defendant is incorrect in this regard. (See Doc. No. 1-1 at 22) (“The Slater Fire was the result of Defendants’ practice of 28 | prioritizing profits over safety... .”).