Pham v. Southern California Edison CA2/2 ( 2023 )

Filed 5/2/23 Pham v. Southern California Edison CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MICHAEL PHAM, as B316026
represented, etc., et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No.
20STCV18831)
v.
SOUTHERN CALIFORNIA
EDISON COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael P. Linfield, Judge. Affirmed.
Mardirossian Akaragian, Garo Mardirossian, Armen
Akaragian, and Adam Feit for Plaintiffs and Appellants.
Aneiko L. Hickerson; Greines, Martin, Stein & Richland
and Robin Meadow for Defendant and Respondent.
_________________________
This case arises out of a tragic car accident. Michael Pham
(Pham) and his wife, Ynhi Tran (Tran), were struck by a car
while taking a nighttime stroll through their neighborhood. Tran
died, and Pham suffered a debilitating brain injury that caused
him to become incompetent.
Pham and his two teenage sons (collectively appellants)
sued, among others, defendant and respondent Southern
California Edison Company (SCE) for providing the ineffective
streetlights that allegedly caused the fatal accident.1 SCE moved
for summary judgment, arguing that, as a matter of law, it did
not owe appellants a duty of care regarding the streetlights. The
trial court granted SCE’s motion, and this appeal followed.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Accident
On the night of January 23, 2019, Pham and Tran went for
a walk to a neighborhood park located in the County of Riverside.
At around 8:30 p.m., the pair entered a crosswalk on Morgan Hill
Drive, a major street running alongside the park. Within
seconds, they were struck by a car attempting to make a left turn
through the intersection. The driver claimed that she could not
see the couple until she hit them.
II. The Lawsuit
A. The Complaint
On May 18, 2020, appellants sued, inter alia, SCE for
negligence. They argued that SCE installed and operated the
streetlights in the neighborhood where the accident occurred, and
claimed that SCE “purposely decrease[d] the amount of street
1 Appellants each sued through a guardian ad litem.
2
lighting and illumination” in the area “solely for [the] purpose of
mitigating light pollution for [a] nearby . . . [o]bservatory,”
regardless of its “adverse affects on visibility of users of public
roadways.”
Specifically, appellants alleged that the fateful crosswalk
was located “within a densely populated suburban residential
community,” and that SCE had caused the crosswalk to be
“poorly, inadequately, and dangerously under-illuminated . . . so
as to create an unreasonably increased risk of serious injury and
death, such that said inadequate lighting conditions were a
causal factor contributing to the collision” and resulting injuries.
B. SCE’s Motion for Summary Judgment
On February 16, 2021, SCE filed a motion for summary
judgment. It argued that appellants could not establish a
necessary element of their negligence claim against SCE—
namely, that the company owed them a duty of care—because
“[a]s a matter of law, [SCE] owed no duty . . . to provide
streetlights in the first place nor to maintain the streetlights in
an operable condition.”
SCE’s motion primarily relied on White v. Southern Cal.
Edison Co. (1994) 25 Cal.App.4th 442, 435–436 (White), which
holds that, in general, “a public utility [company] owes no duty to
a person injured as a result of an interruption of service or a
failure to provide service.” White also notes certain exceptions to
this rule, stating that a duty could attach if (1) the streetlight “is
. . . necessary to obviate a dangerous condition[;]” (2) the “failure
to maintain an installed streetlight . . . create[s] a risk greater
than the risk created by the total absence of a streetlight[;]” or
(3) the injured person “relied on the operation of the streetlight
foregoing other protective actions.” (Id. at p. 451.)
3
SCE argued that because appellants’ complaint alleged
only a failure to provide adequate streetlights and did not allege
facts supporting any of the exceptions to the White rule, they
could not establish that SCE owed them a duty of care. To
support its argument, SCE asked the court to take judicial notice
of the fact that it was a public utility company contracted by the
County of Riverside to provide streetlighting services in the
neighborhood where the accident took place.
C. Appellants’ Opposition to Summary Judgment
On June 1, 2021, appellants submitted their opposition to
SCE’s motion for summary judgment. Among other things, they
argued that SCE, not appellants, bore the burden of proof with
respect to the White exceptions. Appellants characterized the
White exceptions as an “affirmative defense,” and contended that
SCE could not obtain summary judgment unless it established
the total absence of all three exceptions.
That contention notwithstanding, appellants’ opposition
included arguments on each of the exceptions. They claimed
(1) that surface defects and other physical characteristics of the
crosswalk where the incident occurred constituted a dangerous
condition which required the provision of adequate streetlights;
(2) that the allegedly dim lighting provided by SCE’s streetlights
created a greater safety risk than total darkness; and (3) that
Pham and Tran chose their walking route in reliance on the
streetlights providing adequate light. Appellants attached
several exhibits of evidence supporting these arguments,
including expert declarations from a traffic engineer, an electrical
engineer, and an accident reconstructionist, as well as testimony
from one of Pham and Tran’s sons about the couple’s habits and
attitudes.
4
Lastly, appellants objected to SCE’s request for judicial
notice. They also asked the trial court to take notice of local
ordinances setting standards for streetlights, which they alleged
SCE violated.
D. SCE’s Reply and Evidentiary Objections
In its reply to appellants’ opposition, SCE reiterated that
appellants’ complaint failed to allege facts supporting any of the
White exceptions. SCE argued, inter alia, that most of the
evidence appellants proffered in support of the White exceptions
was irrelevant because it exceeded the scope of their complaint.
Consequently, SCE lodged 38 evidentiary objections against
appellants’ evidence. Each objection included several potential
grounds, including relevance and materiality.
E. The Summary Judgment Hearing
After confirming that both appellants and SCE had read its
tentative ruling to grant the motion, the trial court entertained
oral argument. Appellants argued that the determinative
question was whether SCE owed “a duty here, [wa]s there a duty
to light[,] [wa]s there a duty to properly light.” They agreed that
the court was “properly looking at the White case [for] guidance
on this issue,” but contended that “the real difference in our case
versus what came in the past is that in our case we have a
peculiar condition[,] [a]nd we tried to set out those peculiar
conditions in the declarations of our experts.”
Appellants repeated their earlier arguments that the White
exceptions constitute an affirmative defense, and that SCE bore
the initial burden to present evidence establishing their absence.
Appellants claimed that they had only proffered evidence of the
White exceptions in their opposition as an exercise in good faith,
telling the trial court: “We even went [to] the next step. We said
5
assume SCE met its burden here, here is why [it] d[id]n’t meet
White because of all the evidence that we submitted that shows
that you cannot meet your burden on these factors.”
The trial court then asked appellants to respond to SCE’s
argument that they were “limited to the allegations in the
complaint, [which] simply talk[] about a lack of lighting. It does
not talk about peculiar conditions . . . [and] [w]e don’t have an
amended complaint that we’re dealing with.”
Appellants dismissed the argument as “a non sequitur,”
and claimed that there was no question of SCE having notice of
appellants’ arguments on the White exceptions because “discovery
has been consistent with our opposition [and] SCE knows what
our position has been.” In the alternative, appellants asked “for a
continuance so that we can actually amend the pleading to
include in it the necessary language that [SCE] thinks is
required.”
The trial court denied appellants’ oral motion for a
continuance.
F. The Summary Judgment Ruling
Ultimately, the trial court adopted its tentative ruling
granting summary judgment. In so doing, the trial court granted
SCE’s request for judicial notice regarding its status as a public
utility company and its contracts to provide streetlights to the
County of Riverside. It also granted appellants’ request for
judicial notice of the county’s streetlight ordinances.
Additionally, the trial court sustained most of SCE’s
objections to appellants’ proffered evidence, effectively excluding
all their expert opinions and percipient witness testimony.
In its detailed order, the trial court found that SCE had
successfully demonstrated “that the general rule that it owed
6
[appellants] no duty” applied, especially since appellants’
complaint only alleged that SCE “contributed to [Tran’s] death
[and Pham’s injuries] because of negligent maintenance of a
streetlight, that caused inadequate streetlighting in the area.”
The court noted that appellants “failed to properly introduce any
admissible evidence showing that all of the three White factors
are met.”
The trial court concluded that while “this [wa]s a tragic
case . . . under California law, [SCE] is not responsible for
[appellants’] injuries. Because [appellants] cannot establish an
essential element of their claim—a legal duty of care—[SCE] is
entitled to judgment as a matter of law.”
G. Notice of Appeal
Appellants timely appealed.
DISCUSSION
I. Relevant Law
A. Summary Judgment Principles
A “motion for summary judgment shall be granted if 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.” (Code Civ. Proc., § 437c, subd. (c).) “To
secure summary judgment, a moving defendant may . . . disprove
at least one essential element of the plaintiff’s cause of action
[citations] or show that an element of the cause of action cannot
be established.” (Sanchez v. Swinerton & Walberg Co. (1996)
47 Cal.App.4th 1461, 1465 (Sanchez).)
A defendant shows that an element of a cause of action
cannot be established by submitting evidence that the plaintiff
does not possess, and cannot reasonably obtain, evidence
supporting the element. (Aguilar v. Atlantic Richfield Co. (2001)
7
25 Cal.4th 826, 854.) Once a defendant has made this showing,
the burden shifts to the plaintiff to set forth the specific facts
which prove the existence of a triable issue of material fact.
(Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal.App.4th 962, 975.)
“The pleadings play a key role in a summary judgment
motion and “‘“‘“set the boundaries of the issues to be resolved at
summary judgment.’”’ [Citation.]” (Jacobs v. Coldwell Banker
Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444.)
“[T]he scope of the issues to be properly addressed in [a]
summary judgment motion” is typically “limited to the claims
framed by the pleadings. [Citation.] A moving party seeking
summary judgment . . . is not required to go beyond the
allegations of the pleading, with respect to new theories that
could have been pled, but for which no motion to amend or
supplement the pleading was brought, prior to the hearing on the
dispositive motion. [Citations.]” (Howard v. Omni Hotels
Management Corp. (2012) 203 Cal.App.4th 403, 421 (Howard).)
Similarly, “[a] party may not oppose a summary judgment motion
based on a claim, theory, or defense that is not alleged in the
pleadings,” and “[e]vidence offered on an unpleaded claim, theory,
or defense is irrelevant because it is outside the scope of the
pleadings.” (California Bank & Trust v. Lawlor (2013)
222 Cal.App.4th 625, 637, fn. 3 (California Bank & Trust).)
B. Negligence and Public Utility Defendants
Appellants’ complaint pled only one cause of action against
SCE: negligence. “To prevail on a negligence claim, a plaintiff
must establish that the defendant had a duty of care that he or
she breached, and that there is causal connection between that
breach and damages.” (Minnegren v. Nozar (2016) 4 Cal.App.5th
500, 507). “[W]hether a defendant owes the requisite ‘duty of
8
care,’ in a given factual situation, presents a question of law
which is to be determined by the courts alone.” (Peter W. v.
San Francisco Unified School Dist. (1976) 60 Cal.App.3d 814,
822.)
Public utilities, like other entities, have “a general duty to
exercise reasonable care in the management of [their] personal
and real property.” (White, supra, 25 Cal.App.4th at p. 447; see
also Civ. Code, § 1714, subd. (a).) Thus, public utilities may be
liable to third parties who are directly injured by the utility’s
defective or improperly installed equipment. (See, e.g., Jackson
v. Utica Light & Power Co. (1944) 64 Cal.App.2d 885, 895 [public
utility liable for the death of a construction worker electrocuted
by an inadequately maintained power line], Gerberich v.
Southern California Edison Co. (1935) 5 Cal.2d 46, 53 [public
utility liable for the death of a motorist killed when his car struck
a power pole that the utility installed too close to the road].)
However, California law expressly limits the duties that a
public utility owes to third parties. “In the absence of a contract
between the utility and the consumer expressly providing for the
furnishing of a service for a specific purpose, a public utility owes
no duty to a person injured as a result of an interruption of
service or a failure to provide service.” (White, supra,
25 Cal.App.4th at pp. 435–436.) This limited duty extends to the
provision of streetlights. Generally, a public utility owes no duty
to provide the public with fully operable streetlights. (White,
supra, at p. 451.) And, if a public utility does provide
streetlighting services, the utility does not automatically owe the
public a duty to make sure that those services are adequate.
(Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124,
139 (Mixon).)
9
This general rule against liability has several exceptions.
As mentioned above, the White court held that “liability may
. . . be imposed on a public utility” for failing to provide operable
streetlights “where (1) the installation of the streetlight is
. . . necessary to obviate a dangerous condition, i.e., there is a
duty to install the streetlight and a concomitant duty to maintain
it; (2) the failure to maintain an installed streetlight does
. . . create a risk greater than the risk created by the total
absence of a streetlight; and (3) the injured party has . . . in some
manner relied on the operation of the streetlight foregoing other
protective actions, e.g., a pedestrian chooses a particular route
home in reliance on the available streetlighting when the
pedestrian would have chosen a different route or a different
means of transportation in the absence of lighting.”2 (White,
supra, 25 Cal.App.4th at p. 451.) To establish that a public
utility defendant owes a duty to provide adequate streetlights,
the plaintiff’s complaint must allege facts supporting at least one
of these exceptions. (Id. at p. 452.)
II. Standard of Review
We independently review the trial court’s grant of
summary judgment. In conducting our review, “we follow the
traditional three-step analysis. ‘We first identify the issues
framed by the pleadings, since it is these allegations to which the
motion must respond. Secondly, we determine whether the
moving party has established facts which negate the opponents’
claim and justify a judgment in the movant’s favor. Finally, if
2 There is some confusion about whether these three
exceptions are disjunctive or conjunctive, amongst both the
parties and the appellate courts. We need not decide this issue;
we assume arguendo that the White exceptions are disjunctive.
10
the summary judgment motion prima facie justifies a judgment,
we determine whether the opposition demonstrates the existence
of a triable, material factual issue. [Citation.]’ [Citation.]”
(Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967,
975.)
In “reviewing the trial court’s decision to grant summary
judgment, we liberally construe the evidence in support of the
party opposing summary judgment and resolve all doubts about
the evidence in that party’s favor. [Citation.]” (Caliber Paving
Co., Inc. v. Rexford Industrial Realty & Management, Inc. (2020)
54 Cal.App.5th 175, 190.)
III. Analysis
A. Summary Judgment Was Proper
As noted above, appellants’ complaint asserts a single
cause of action against SCE for negligence based on its alleged
failure to provide adequate streetlights. The trial court found
that SCE was entitled to summary judgment because it
successfully negated one of the elements of this cause of action—
namely duty of care. We agree.
In its motion, SCE proffered evidence that it is a public
utility company and that the County of Riverside (rather than
appellants) contracted it to provide streetlights in the
neighborhood where the accident took place. This establishes the
conditions necessary to trigger the general rule against liability
espoused in White. (White, supra, 25 Cal.App.4th at pp. 435–
436.)
Urging us, as they did the trial court, to conclude
otherwise, appellants direct us to evidence on each of the White
exceptions. The problem for appellants is that this evidence
exceeds the scope of the theory of liability asserted in their
11
complaint. (See California Bank & Trust, supra, 222 Cal.App.4th
at p. 637, fn. 3.)
A generous reading of the complaint’s allegations does not
suggest that appellants’ negligence claim is based on anything
other than SCE’s failure to provide adequately bright streetlights
in a densely populated suburban area. (Antenor v. City of
Los Angeles (1985) 174 Cal.App.3d 477, 483 [“‘[I]t is generally
held that a municipality is under no duty to light its streets
. . . and hence, that its failure to light them is not actionable
negligence, and will not render it liable in damages to a traveler
who is injured solely by reason thereof’”] (italics added); Mixon,
supra, 207 Cal.App.4th at p. 139 [“A public utility . . . cannot be
charged with greater liability than the public entity itself in this
regard”].)
Nothing in the complaint suggests that appellants intended
to pursue a theory of liability encompassing the White exceptions.
The complaint does not allege that a dangerous condition other
than reduced visibility existed at the accident site; that the
allegedly dim lighting posed a danger greater than total
darkness; or that Pham and Tran forewent protective actions in
reliance on the streetlight. Moreover, it would be extraordinarily
difficult for us to construe the complaint as alleging any of these
things when appellants have consistently argued (both before the
trial court and on appeal) that it is SCE, and not appellants, that
bears the burden of establishing the White exceptions.3
3 To the extent appellants could have proceeded on one of
these theories by amending their complaint, we note that they
did not seek leave to amend until the summary judgment hearing
was underway—at which point it was too late. (See Howard,
supra, 203 Cal.App.4th at p. 421.) Appellants do not challenge
12
The bottom line is that, here as in White, appellants’
“complaint alleges in conclusory fashion that the inadequate
lighting created a dangerous condition because visibility was
diminished.” (White, supra, 25 Cal.App.4th at p. 452.) And, as in
White, “[t]his is not sufficient to impose a duty on SCE.” (Ibid.)
Accordingly, we conclude that the trial court properly granted
summary judgment in SCE’s favor.4
B. Appellants’ Counterarguments
Appellants raise seven arguments against our conclusion.
First, they continue to insist that the White exceptions function
not as a threshold requirement for a plaintiff to establish
liability, but as an affirmative defense that must be raised by a
public utility defendant. This argument fundamentally
misunderstands White. The White court explicitly stated that a
plaintiff must allege “facts which would impose a duty on” a
public utility defendant “to maintain [a] streetlight in an
operative condition.” (White, supra, 25 Cal.App.4th at p. 452.)
The phrase “facts which would impose a duty” unambiguously
refers to the White exceptions; in the sentences immediately
following this phrase, the court faulted the plaintiff for failing to
allege facts supporting any of the three exceptions. (Ibid.)
Appellants ignore the plain text of White and attempt to
analogize its exceptions to the affirmative defense of design
immunity. But White is readily distinguishable from that
defense. Design immunity shields a public entity from liability if
the trial court’s denial of their oral motion requesting a
continuance for leave to amend.
4 Because we resolve this appeal on this ground, we need not
address the parties’ other arguments, including their substantive
arguments about the White exceptions.
13
certain conditions apply (Gov. Code, § 830.6), while White shields
public utility companies from liability unless certain conditions
apply (White, supra, 25 Cal.App.4th at p. 451). These differences
in construction matter. Design immunity is an affirmative
defense because it assumes that the defendant is liable until it
establishes conditions justifying the award of immunity. White
does just the opposite, and so is not a defense at all; it presumes
that the defendant is not liable unless the plaintiff can prove
otherwise.
Second, appellants argue that White should not entirely
control their case, because White involved a car crash between
two motorists, not between one motorist and two pedestrians.
This distinction does not compel a different result; appellate
courts have applied White to cases concerning collisions between
cars and pedestrians without difficulty. (See, e.g., Mixon, supra,
207 Cal.App.4th at pp. 129, 140.) And, in any event, appellants
effectively forfeited any objection to White by conceding before the
trial court that it controls this case. (Swain v. LaserAway
Medical Group, Inc. (2020) 57 Cal.App.5th 59, 73 [declining to
consider an argument on appeal when the party “took the
opposite position in the trial court”].)
Appellants also argue that White and Mixon should not
apply because (1) SCE is not entitled to the benefit of the White
rule against liability because streetlighting is an “ancillary
optional service” rather than a traditional public utility service;
and (2) unlike the plaintiffs in White and Mixon, appellants argue
that SCE violated a local ordinance mandating a certain level of
brightness from streetlights. (Capitalization & bolding omitted.)
Appellants cite no legal authority for either of these propositions.
(See Cahill v. San Diego Gas & Electric Co. (2011) 194
14
Cal.App.4th 939, 956 [“‘The absence of cogent legal argument or
citation to authority allows this court to treat [a] contention as
waived.’ [Citations.]”].)
Furthermore, both arguments are individually flawed. The
White and Mixon courts explicitly applied the general rule
against liability to public utilities providing streetlighting
services, regardless of whether those services are considered
“ancillary” or “traditional.” And appellants have not shown that
they, as private citizens, have standing to bring a claim to enforce
the County of Riverside’s streetlighting ordinance. (Animal Legal
Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 144–147
[plaintiffs lacked standing to enforce a statute because it neither
expressly contained nor implied a private right of action]; former
Riverside County Ordinance No. 461.10 [sets forth standards for
streetlights, but does not provide a private right of action or
similar enforcement mechanism].)
Third, appellants argue that the trial court failed to
address the argument that appellants’ evidence exceeded the
scope of their pleadings.5 This argument is flawed for two
reasons. For one, it is inaccurate; the trial court invited
argument on this exact issue at the summary judgment hearing,
prompting appellants to make a belated oral motion for leave to
amend. But even if appellants’ argument was correct, it is
irrelevant. Because our review of summary judgment is de novo,
we may affirm the trial court’s judgment if it is correct on any
5 Relatedly, appellants claim that SCE did not timely raise
the scope-of-pleadings argument. This contention is meritless.
SCE first argued that appellants’ opposition to summary
judgment exceeded the scope of the pleadings in its reply to that
opposition. The argument could not have been raised any earlier.
15
ground. (Jimenez v. County of Los Angeles (2005) 130
Cal.App.4th 133, 140 [“[O]n appeal following summary judgment,
the trial court’s reasoning is irrelevant . . . . [The appellate court]
exercise[s] [its] independent judgment . . . and must affirm on
any ground supported by the record”] [Citations omitted.].)
Fourth, appellants argue that even if their complaint did
not allege facts supporting any of the White exceptions, any
opposition arguments about those exceptions did not exceed the
complaint’s general theory of liability. Appellants contend that it
was sufficient for them to generally allege that SCE owed them a
duty, as that placed SCE and the trial court on notice that
appellants would argue any facts necessary to establish that
duty. This argument is misguided.
A plaintiff’s opposition to summary judgment cannot rely
on “new factual issues [that] present different theories of recovery
or rest on a fundamentally different factual basis.” (Laabs v. City
of Victorville (2008) 163 Cal.App.4th 1242, 1257.) And, as we
explained above, appellants’ arguments regarding the White
exceptions rested on a completely different set of facts from those
alleged in their complaint. The cases appellant cites to the
contrary are unavailing. (Id. at pp. 1257–1258 [injured motorist
suing a public utility for negligence exceeded the scope of the
pleadings by introducing facts about a new dangerous condition
not mentioned in the operative complaint]; Hutton v. Fidelity
National Title Co. (2013) 213 Cal.App.4th 486, 488 [prevailing
summary judgment movant did not need to negate its liability as
to unpled causes of action].)
Fifth, appellants present a barrage of arguments against
the trial court’s rulings sustaining SCE’s evidentiary objections.
Appellants contend that their expert opinions and percipient
16
witness testimony are relevant and admissible to prove each of
the three White exceptions. We disagree, as any evidence
appellants advanced in support of the White exceptions is
inadmissible as irrelevant. (California Bank & Trust, supra, 222
Cal.App.4th at p. 637, fn. 3 [“Evidence offered on an unpleaded
claim, theory, or defense is irrelevant because it is outside the
scope of the pleadings”].)
Sixth, appellants argue that SCE owes them a duty of care
under the negligent undertaking theory, suggesting that White
does not preclude the application of this doctrine to public utility
defendants.6 This argument misreads White, which incorporates
and modifies the negligent undertaking theory as it applies to
public utility defendants. (See White, supra, 25 Cal.App.4th at
p. 451.)
Lastly, appellants contend that summary judgment is
improper because there are triable issues of fact about whether
the allegedly dim streetlights caused the fateful accident. This
argument is immaterial. Regardless of what appellants can
demonstrate about the element of causation, SCE is entitled to
summary judgment because it successfully established that it
does not owe appellants a duty of care. (Sanchez, supra, 47
6 “[T]he negligent undertaking doctrine (also referred to as
the Good Samaritan doctrine), which is contained in section 324A
of the Restatement Second of Torts,” provides that, “‘[o]ne who
undertakes, gratuitously or for consideration, to render services
to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to
the third person for physical harm resulting from his failure to
exercise reasonable care to [perform] his undertaking’” under
certain circumstances. (Dekens v. Underwriters Laboratories Inc.
(2003) 107 Cal.App.4th 1177, 1181–1182, fn. omitted.)
17
Cal.App.4th at p. 1465 [defendant is entitled to summary
judgment if it “disprove[s] at least one essential element of the
plaintiff’s cause of action [citations] or show[s] that an element of
the cause of action cannot be established”] (italics added.))
DISPOSITION
The judgment is affirmed. SCE is entitled to its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
18