Southern Cal. Edison v. HPS Mechanical

Filed 11/29/05 Southern Cal. Edison v. HPS Mechanical CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SOUTHERN CALIFORNIA EDISON, Plaintiff and Respondent, v. HPS MECHANICAL, INC., Defendant and Appellant.

2d Civil No. B178826 (Super. Ct. No. SC037171) (Ventura County)

Defendant HPS Mechanical, Inc. (HPS) appeals a judgment in favor of plaintiff Southern California Edison (SCE) for damage it caused to an SCE electrical duct bank. We conclude, among other things, that substantial evidence supports the finding that HPS was negligent. We affirm.

FACTS

The City of Thousand Oaks hired HPS to install a sewer system. HPS performed this work beneath several SCE electrical duct banks. These subsurface electrical conduits are either fully or partially encased in concrete and are connected to an "energized cable" carrying 16,000 volts of electricity.

Douglas Vajner, an HPS foreman, testified that he authorized a backhoe, a motorized earth moving vehicle, to excavate near one of SCE's duct banks. The backhoe pierced the electrical installation and damaged it. Before the accident, Vajner saw "four corners" of the duct bank from the top side, but his crew did not use hand tools to expose the bottom portion of it. He did not know what was at the bottom, and did not obtain information about its dimensions or composition from SCE. He mistakenly assumed that the duct bank was entirely encased in concrete and did not know that the bottom was not covered.

Rickie Wheeler, an SCE expert, testified that it is "commonly known in the industry . . . that the encasement around duct banks, such as the one . . . in this case, is not designed to withstand digging tools, let alone a backhoe . . . ." Using a backhoe or any power tool is unsafe because it is "too easy to slip, make a mistake and damage the duct or . . . kill somebody if they got into the electrical line." He said the "general custom and practice in the industry [is] to use hand tools . . . to expose a 360-degree view of [the duct] to get the six-inch clearance underneath it, a . . . working clearance."

Tim Ashlock, an HPS expert, testified that it was proper to use a backhoe near the duct bank and HPS was not required to contact SCE before using it.

SCE alleged in its complaint that HPS negligently engaged in trenching activities. The trial court found that HPS violated Government Code section 4216.4 because it used hand tools to expose only the top of the duct bank and not the entire structure.[1]

DISCUSSION

I. Section 4216.4

HPS contends the trial court erred by finding that it violated section 4216.4. We disagree.

At the time of the accident, section 4216.4 provided in relevant part: "(a) The excavator shall determine the exact location of subsurface installations in conflict with the excavation by excavating with hand tools within the area of the approximate location of subsurface installations as determined by the field marking . . . before using any power-operated or power-driven excavating or boring equipment within the approximate location of the subsurface installation . . . . [¶] (b) If the exact location of the subsurface installation cannot be determined by hand excavating in accordance with subdivision (a), the excavator shall request the operator to provide additional information to the excavator . . . to enable the excavator to determine the exact location of the installation."

HPS contends it did not violate the statute because it located the top of the duct bank. But this statute was enacted for safety reasons. HPS therefore had to determine the depth of SCE's subsurface installations before using power tools. (Unocal Corp. v. U. S. (9th Cir. 2000) 222 F.3d 528, 536.) Vajner admitted he could not see the bottom of the duct bank. HPS concedes that "it assumed this duct bank was totally encased in concrete . . . ." But assumptions do not suffice. Wheeler's testimony shows that HPS did not use hand tools to expose the complete dimensions of SCE's subsurface installations. HPS neither obtained permission from SCE to use power tools near the duct bank nor did it request any information from SCE about it. The trial court could reasonably infer that HPS proceeded ahead without knowing the exact location of the installation. There was no error.

But section 4216.4 aside, the result does not change. A ruling, "'. . . [i]f right upon any theory of the law applicable to the case, . . . must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' [Citation.]" (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.) Here there is an alternative ground to uphold the judgment, negligence.

II. Substantial Evidence

HPS contends that there is no substantial evidence to show that it was negligent. We disagree.

We must draw all reasonable inferences in support of the judgment and we do not weigh the evidence. (Elgin Capital Corp. v. County of Santa Clara (1975) 57 Cal.App.3d 687, 690.) From Wheeler's testimony, the court could reasonably infer that HPS was negligent by not properly inspecting the area around the duct bank and by using the backhoe near it.

HPS argues that it presented expert testimony showing that it complied with the custom and practices of the industry. But evidence which supports its position does not negate the expert evidence SCE presented which supports the judgment. Moreover, the trial court decides the credibility of experts. (Biren v. Equality Emergency Medical Group, Inc. (2002) 102 Cal.App.4th 125, 139.) Here it could disbelieve experts who said HPS acted properly, as it could infer that using a backhoe so close to the duct bank was dangerous. (Ibid.; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633.) "'[T]he standard . . . is always due care. The presence or absence of custom does not alter that standard. . . .'" (Bouse v. Madonna Const. Co. (1962) 201 Cal.App.2d 26, 30.) "'. . . Conformity to "the general practice or custom would not excuse the defendant's failure unless it was consistent with due care." . . . '" (Ibid.) Here the court could reasonably infer HPS displayed a lack of due care.

We have carefully reviewed HPS' remaining contentions and conclude it has not shown reversible error.

The judgment is affirmed. Costs to respondent.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Charles R. McGrath, Judge

Superior Court County of Ventura

______________________________

Knapp, Petersen & Clarke and Robert D. Brugge for Defendant and Appellant.

Richard D. Arko, Donald A. Redd, Douglas P. Ditonto and Michael Gonzales for Plaintiff and Respondent.

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[1] All statutory references are to the Government Code.