Ninth Circuit sends firm’s challenge to PG&E power shutoffs to California Supreme Court

Feb. 28, 2022 — A Ninth Circuit panel today certified two novel questions of California law in the firm’s negligence class action against PG&E to the California Supreme Court, which will now decide whether to hear the case.

The case arose after firm client Anthony Gantner sued PG&E on behalf of hundreds of thousands of PG&E customers in Northern California harmed by PG&E’s “public safety power shutoffs” (PSPSs) in the fall of 2019. Gantner alleged that the PSPSs were the result of PG&E’s well-documented negligence, over many years, in maintaining its power grid, which forced it to choose between shutting the power off or letting the fires burn.

The first question of law involves PG&E’s defense that, because PSPSs are generally permitted by the California Public Utilities Commission (CPUC), it is immune from liability for its negligence because liability would “hinder or frustrate” the CPUC’s regulatory authority over PG&E. Plaintiff’s position, however, supported by amicus Alice Stebbins, former Executive Director of the CPUC, is that there is no such interference since the lawsuit does not challenge PG&E’s right to implement PSPSs or the manner in which they implement them—instead, the case is about why PG&E was forced to implement them in the first place. PG&E’s other defense is that a tariff rule (special rules that apply to public utilities) gives it blanket immunity from damages caused by the interruption of services. But Plaintiff counters that that same tariff rule provides that the immunity does not apply where the interruption of service was due to its own “failure to exercise reasonable diligence.”

The Ninth Circuit, noting that “wildfires are increasingly an annual occurrence throughout California,” and that “how California allocates the costs of wildfires and PSPSs involves important policy considerations,” determined that neither of these issues had yet been resolved by the California state courts, and so has now asked the California Supreme Court to weigh in on them.

Mr. Gantner and the putative class are represented by firm lawyers Nick Carlin, Brian Conlon, and Kyle O’Malley. For oral argument before the Ninth Circuit, see here.