PG&E fights judge’s order clearing way for Tubbs fire trial

PG&E is objecting to a judge’s decision that would allow a California jury to weigh whether the utility is liable for damages caused by the 2017 Tubbs fire that destroyed some 4,600 homes in Sonoma and Napa counties and killed 22 people.

Attorneys for the utility on Wednesday filed a notice of appeal related to U.S. Bankruptcy Judge Dennis Montali’s Aug. 16 order giving Tubbs fire plaintiffs a green light to move forward with their civil case against PG&E.

PG&E has sought to avoid that legal battle amid its bankruptcy case, pointing to Cal Fire’s conclusion this year that private power equipment, not PG&E’s, was to blame for the Tubbs fire, the state’s second-most destructive wildfire on record.

A successful appeal would stave off that trial and limit the utility’s exposure to billions of dollars in liability in the Tubbs fire alone. But fire survivors say it would deny them their day in court - and the chance to press their case that Cal Fire got it wrong in its January report on the fire’s cause.

Will Abrams, who lost his Hidden Hills home in the Tubbs fire, said he felt the appeal was an example of PG&E “shirking responsibility and accountability” for the wildfires. Aside from Tubbs, most of those sparked during the historic 2017 firestorm were linked by Cal Fire to the utility’s power equipment.

“What’s most important is that wildfire survivors view this process as fair and just,” Abrams said. “By PG&E continuing to avoid responsibility, it does not give wildfire survivors the sense that this process is providing fairness and justice for the decision.”

The utility’s filing cites “new circumstances” stemming from a recommendation Montali made Aug. 21: that a federal district court judge take over the complex process of estimating wildfire victims’ claims.

The utility wants the appeal to be heard by the same federal district court judge handling wildfire claims as part of the bankruptcy case.

“We remain committed to supporting wildfire victims and resolving their claims, and we are working hard to emerge from these complex Chapter 11 proceedings in advance of the June 30, 2020, statutory deadline,” said PG&E spokesman Paul Moreno. “Now that the District Court is handling all wildfire claims estimations, including with respect to the Tubbs fire, we are seeking that court’s guidance as to whether it agrees that it is most efficient to determine the cause of the Tubbs fire as part of those same proceedings.”

Robert Julian, an attorney for a group of plaintiffs seeking damages from PG&E, argued that Montali’s recommendation - that the federal district judge handle all fire claims - did not amount to “new circumstances” that call for revisiting whether a civil Tubbs fire trial should go forward.

He acknowledged that the recommendation came several days after the order but noted that Montali held hearings on the liability claims process and trial permission on the same day. He argued that the two judicial decisions were “all part of the same package.” He disputed PG&E’s contention that the playing field had been changed.

“If they were appealing on the basis of something that actually happened, that would be one thing,” Julian said. It was unclear what PG&E’s appeal would mean for the timing of the case, he said.

Fire survivors are hoping that the district court judge will affirm Montali’s order allowing a civil trial to go forward.

PG&E is hoping that the judge sees things differently.

“We do not believe that it makes sense to have what amounts to two ‘trials’ on the same issues in both federal district court for estimation and in the state courts for Tubbs,” Moreno said.

Abrams, the Hidden Hills homeowner, sent a letter to Montali before his ruling, urging him to allow the case to go before a jury. The financial interests of PG&E should not be put above the personal and financial interests of survivors, he wrote. Rushed proceedings would not provide wildfire survivors a fair resolution, he added.

“I hope that Judge Montali quickly shoots (the appeal) down and makes a clear statement that ... expediency is not going to be the rule,” Abrams said.

But for Hans Dippel, who lost his Fountaingrove home in the Tubbs fire, the litigation is less important than rebuilding efforts. Fire survivors are likely more worried about the upcoming expiration of insurance payments covering temporary living quarters, he said, a step that will shoulder many with parallel rent and mortgage expenses and which could stall rebuilding for some.

Taking PG&E to trial would not make him or his family “whole again,” he said, adding that he just wants to focus on moving forward.

“I know emotions are high,” Dippel said. “I’m not happy that the whole thing happened, but I would rather move forward.”

Still, some survivors said they hoped to use any damage awards from the suit to fund their rebuilding efforts. Fire survivor Lisa Mattson said in an email that while she wasn’t optimistic about recouping her financial losses from the lawsuit, the construction costs for her home have become “so outrageous” since the fire.

A trial could be the only way her family could rebuild their garage in the next two years because of the rising cost of construction, she said.

PG&E faces up to $30 billion in liability from wildfires in 2017 and 2018, including the Tubbs fire, which destroyed more than 3,000 Santa Rosa homes and hundreds more outside the city limits. Montali’s recommendation noted that “PG&E must deal with liabilities arising from more than 20 separate fires, perhaps from as many causes.”

Montali’s order, if it holds, would allow those suing PG&E to ask a jury to hear their challenge to the state investigation that traced the cause of the Tubbs fire to private electric equipment outside of Calistoga.

Plaintiffs’ attorneys have proposed an alternative theory about the ignition of the Tubbs fire and have argued that PG&E did not do enough in maintaining and operating its grid to prevent catastrophic fires.

James Finn, one of the plaintiffs who lost his Fountaingrove home in the Tubbs fire, said he was unsurprised by PG&E’s appeal. The public needs to hear all the evidence in the case because it is “the fair thing to do,” he said.

Attorneys handling the fire survivors’ lawsuit had already begun to gather evidence and question witnesses before the PG&E bankruptcy case halted litigation.

The attorneys have said they could be prepared for trial by late 2019 or early 2020 - too soon for PG&E’s preference. The utility hopes to finalize its bankruptcy by the end of June to qualify for participation in a $10.5 billion wildfire insurance fund to pay for future fire damages.

You can reach Staff Writer Chantelle Lee at 707-521-5337 or chantelle.lee@pressdemocrat.com. On Twitter @ChantelleHLee. Reach Staff Writer Will Schmitt at 707-521-5207 or will.schmitt@pressdemocrat.com. On Twitter @wsreports.