Wildfire Plaintiffs Worry Boeing Will Again Move Cases to US Court

By Gina Kim
(Daily Journal)

Attorneys representing a small group of plaintiffs suing the Boeing Co. over the Woolsey fire are advising future claimants not to tie any claims to contamination and radioactive material at the Santa Susana Field Laboratory near Simi Valley, where the blaze ignited Nov. 8, 2018.

Boeing was able to use those claims to retain federal jurisdiction over wildfire litigation against it as there are special federal statutes that govern radiation contamination cases.

On Thursday, the 9th U.S. Circuit Court of Appeals dismissed Boeing's appeal of a district court's order remanding the lawsuit filed by plaintiff Andrew Von Oeyen to state court to join coordinated proceedings. Woolsey Fire cases, JCCP 5000.

The 9th Circuit also denied Boeing's motion to stay the state court proceedings pending before Los Angeles County Superior Court Judge William F. Highberger. Don Howarth and Suzelle M. Smith of Howarth & Smith on behalf of Van Oeyen and other plaintiffs sued Boeing in Los Angeles County Superior Court in February along with defendant Southern California Edison Co., whose equipment has been blamed for starting the Woolsey fire. The blaze chewed through more than 96,000 acres in Ventura and Los Angeles counties. Other plaintiffs in the litigation dropped Boeing as a defendant after the company threatened to remove cases to federal court.

Howarth and Smith kept Boeing as a defendant; Boeing followed through with its threat. Howarth and Smith filed an amended complaint April 30, which clarified their pleadings and cleared out the contamination allegations. Van Oeyen et al. v. The Boeing Company, et al. 19-CV-3955 (C.D. Cal., filed April 30, 2019). Boeing, however, removed the original complaint to federal court before the amended complaint was served.

In August, U.S. District Judge Michael Fitzgerald remanded the case to state court, finding Boeing's removal based on an inoperative and superseded complaint constituted a technical defect, thus making the remand non-appealable.

The 9th Circuit's affirmation of Fitzgerald's remand order keeps the case in state court, unless Boeing petitions to the U.S. Supreme Court, which is unlikely.

"Our cases are now free to proceed in state court full steam ahead," Smith said Friday, noting their amended lawsuit made it clear plaintiffs are only seeking damages for Boeing's conduct related to starting the fire and failing to contain it.

Fitzgerald's remand order in August paved the way for other individual plaintiffs to pursue Boeing again, but it remains to be seen if Boeing will start the same jurisdiction fights with new plaintiffs.

Plaintiff lawyer Gerald B. Singleton of Singleton Law Firm who represents several hundred Woolsey fire victims and plans to pursue Boeing, said the company still has legal rights to remove future cases to federal court.

Both Singleton and Smith said they believed if the toxic tort contamination allegations are removed from future lawsuits, then there'd be no basis for Boeing to assert federal jurisdiction.

Wildfire Suit Against Boeing Should Be In State Court: Judge

By Gina Kim
(Daily Journal)

LOS ANGELES - A lawsuit against the Boeing Co. over a 2018 wildfire in Southern California should be heard in state court, a federal judge tentatively ruled Monday, a move that could allow other plaintiffs to sue the aerospace giant.

If U.S. District Judge Michael W. Fitzgerald sticks with his tentative decision, the Boeing case will join coordinated proceedings presided over by Los Angeles County Judge William F. Highberger. Southern California Fire cases JCCP 5000.

Bellwether trials are set to commence in February 2020.

Don Howarth and Suzelle M. Smith of Howarth & Smith on behalf of plaintiff Andrew Von Oeyen and others, initially sued Boeing in Los Angeles County Superior Court in February along with defendant Southern California Edison Co., whose equipment is believed to have started the Nov. 8, 2018 Woolsey Fire.

The fire began near the Boeing-owned Santa Susana Field Laboratory in Ventura County and charred more than 96,000 acres. Von Oeyen et al. v. The Boeing Company et al. 19-CV3955 (C.D. Cal, filed April 30, 2019).

Other plaintiff firms also pursued Boeing as a defendant but dismissed their cases without prejudice, citing lack of evidence, jurisdiction issues and that Boeing's government contract work could give it immunity.

Howarth & Smith kept Boeing as a defendant, and filed an amended complaint April 30 to clear out toxic tort allegations and proceed on state claims only. On May 6, Boeing removed the action to U.S. district court, invoking the federal officer removal statute.

Over the last several weeks, both plaintiffs and defense argued over whether the case should be remanded to superior court. The primary dispute was whether plaintiffs' unserved original complaint or the first amended complaint is the operative pleading for purposes of a remand.

In his tentative ruling, Fitzgerald agreed with plaintiffs that their amended complaint is the operative pleading.

"Here where the original complaint was not served, this particular risk of gamesmanship is not at play," Fitzgerald wrote. "Accordingly, because the Court determines that Boeing removed a non-operative complaint, this alone is sufficient basis for granting the Remand Motion. If there is any doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts in favor of remanding the action to state court."

Boeing failed to meet that burden, Fitzgerald wrote.

In their pleadings, Howarth and Smith argued their newly-amended lawsuit deals only with state-related wildfire damages claims. There are no federal officer-ordered actions or omissions at Boeing's Santa Susana Field Lab property that required Boeing to allow electrical infrastructure to fall into disrepair or permit vegetation to spread as to increase the risk of fire, plaintiffs argued.

Boeing removed the action to federal court operating on plaintiffs' original complaint - which was unserved - that addressed claims about the fire's juncture, pollution on premises and contamination. When the case was removed to federal court, plaintiffs' original complaint and not their unserved amended complaint was the operative pleading, Boeing contended in their opposition.

Plaintiffs' first amended complaint "is nothing more than a thinly- veiled attempt to avoid federal jurisdiction," Boeing argued.

On Monday, Gibson, Dunn & Crutcher LLP partner Peter S. Modlin argued that it is a matter of law that plaintiffs' unserved initial complaint is the operative complaint for purposes of removal. If an amended complaint isn't served prior to a defendant's answer, the amended complaint doesn't become operative at all, he argued, adding that law requires an amended complaint to be served to the defense for it to become operative.

Howarth contended that the first complaint was nullified once an amended complaint was timely filed. There is no law that doesn't allow the amended complaint to supersede the initial, he added. He also argued Boeing waited until after the first amended complaint was filed to remove the case to federal court.

"We're beating a dead horse here, it's pretty clear," Fitzgerald remarked, while acknowledging the legal issue was an interesting one.

Howarth said after the hearing that his firm went after Boeing and refused to dismiss the company because "we like to get in all defendants we all believe apparently had a hand in this [fire]."

"You name everyone who's responsible and you'll see justice in the appropriate court. State or federal, we'll argue anywhere - both are good places to be in. I'm not going to leave someone out because I'm afraid to argue in a particular jurisdiction," he said.

Now that Von Oeyen prevailed on remand, the question remains as to whether other plaintiffs might pursue Boeing again.

If the remand is successful others plaintiffs could seek to amend their complaints to add Boeing, Howarth said.

Alexander Robertson of Robertson & Associates LLP who is the plaintiffs' co-leadership counsel in the Woolsey litigation said Monday he and his fellow leadership colleagues have no plans at this time to pursue Boeing as a co-defendant.

Ronald L.M. Goldman of Baum Hedlund Aristei & Goldman, who represents individual plaintiffs in the case, said he might pursue Boeing again.

"Discovery is ongoing, and we'll revisit Boeing if needed if we find people who fell ill due to [Boeing's] failure to properly clean up the toxic waste after the fire," Goldman said.

Boeing, SoCal Edison Blamed In Suit For Role In Woolsey Fire

By Dave Simpson
(Law360)

Law360 (February 11, 2019, 8:25 PM EST) -- The Boeing Co. and Southern California Edison Co. have been accused of negligence over the Woolsey Fire outbreak in California state court by Malibu residents and business owners who suffered property damage and losses as a result of the blaze, the plaintiffs' attorneys said.

Boeing and SCE had been hit with a separate suit earlier this month from a group of more than 100 property owners who claim that the companies failed to prevent the fire, which they allege broke out at SCE's Chatsworth substation located on Boeing's Santa Susana Field Laboratory land. SCE has been sued several times over its alleged role in the fire.

The suit filed Friday claims that Boeing was aware that rockets were tested and nuclear accidents have occurred on the site over the years, and that these events resulted in tons of radioactive and toxic chemical waste contaminating the area.

"The Boeing defendants were aware of the foreseeable danger of wildfire causing the toxins in the ground to contaminate the air," the suit claims, noting the Boeing defendants "have or had" a private fire department at the SSFL.

"According to the Boeing defendant's SSFL Emergency Readiness Assurance Plan, submitted to the United States Department of Energy, this was to protect against '[o]ne of the greatest hazards at SSFL ... brush-covered hills. ... it is important to be able to respond quickly to a brush fire.'"

The suit further claims that, on the day of the fire, public firefighters who were responding to the blaze did not recall seeing Boeing's fire crew, but a Boeing spokesperson refuted this claim.

"Security and fire personnel stationed at Santa Susana immediately responded when the fire was first reported and also promptly notified firefighting agencies," the spokesperson told Law360 in an email. "Upon arrival, the county and municipal fire jurisdictions established incident command over the firefighting activities. Cal Fire is conducting an investigation into the origins of the fire. The California Public Utilities Commission is also conducting an investigation. Boeing is fully cooperating with these investigations."

The suit from Malibu victims also slams Edison for numerous reasons, including its alleged lack of response.

"Investigations by the California Department of Forestry and Fire Protection have already concluded that an earlier fire, which ignited almost two hours before the first reports of Woolsey Fire, was probably caused by SCE equipment," the suit claims. Plaintiffs thereon allege that, despite actual knowledge of this earlier fire, SCE still did not take adequate steps to prevent the far more destructive Woolsey Fire from subsequently igniting later that afternoon."

The Woolsey fire, which broke out on Nov. 8 and was contained Nov. 21, charred about 97,000 acres, razed more than 1,500 buildings and killed three people, according to CalFire.

In December, California Insurance Commissioner Dave Jones said in a prepared statement that recent data collected from insurers indicates that homeowners and business owners suffered about $9.05 billion in insured losses from the Camp fire in northern California's Butte County, and the Woolsey and Hill fires in southern California's Los Angeles and Ventura counties. That sum includes claims under home, commercial, automobile and agricultural insurance policies.

Losses from the Camp fire accounted for about $7 billion of the total, while losses from the Woolsey and Hill fires accounted for the other $2.05 billion, according to Jones' data.

Suzelle M. Smith, who is representing the plaintiffs, said in a release that one goal of the suit is to compel Boeing and SCE to take the steps to prevent future fires in the area.

"These corporations know how to improve the safety of their electrical equipment but they have not made the necessary financial investment, preferring to let the community suffer these losses," Smith said. "This must stop."

Plaintiffs in the case announced Friday are represented by Don Howarth, Suzelle M. Smith, and Pauleen Truong of Howarth & Smith. Plaintiffs in the case filed earlier this month are represented by Diane Marger Moore, Michael L. Baum, Ronald L. M. Goldman, Brian R. Strange, Brianna Strange, and Robert F. Kennedy, Jr.

Counsel for Boeing and Edison were not immediately known Monday.

The case is Von Oeyen et al. v. SCE Co. et al. in the Superior Court of the State of California, for the County of Los Angeles, Central District. The case number was not immediately available. The previous case filed against Boeing is [redacted] v. SCE et al., case number 19STCV03419, in the Superior Court of the State of California, County of Los Angeles.