Appellate court inclined to deny Porter Ranch victim petition

The 2nd District Court of Appeal said Thursday it is inclined to allow victims in the Porter Ranch litigation a criminal restitution hearing over the delayed reporting of the leak, but not with regard to charges related to the actual leak itself.

In their tentative ruling denying the petition for writ of mandate by residents affected by the gas leak, the panel said direct victim restitution is available only for losses resulting from the commission of a crime in which there is a conviction.

Counsel for the victims told the panel during oral arguments that residents were wrongfully shut out of a settlement between the Los Angeles County district attorney and Southern California Gas, arguing victims have a constitutional right to seek restitution, citing Marsy's Law, which allows crime victims a right to appeal.

The utility pleaded no contest to one misdemeanor count of failing to timely report the gas leak.

A victims' attorney, Margaret Gringon, who for 14 years served as a 2nd District justice, argued victims had a right to restitution because the convicted count was transactionally related to the charge of discharging contaminants, even though it was dismissed as part of the plea deal.

The panel disagreed, saying the California Constitution does not authorize a direct appeal by a victim from a judgment or order in a criminal case. However, it did say it was inclined to remand to the trial court the issue of restitution for damages caused by only the three-day delay because of questions surrounding the trial court's handling of restitution.

"It appears court and counsel proceeded with the sentencing without a clear plan of what was going to happen with respect to taking evidence on restitution.... This appears to be a result of the court not setting forth the legal parameters of the hearing in advance so that counsel and the court would be prepared to address the relevant issues," the panel tentatively ruled.

Thomas M. Peterson of Morgan, Lewis & Bockius LLP, speaking for SoCalGas, told the panel victims did not have standing to seek restitution, only the district attorney's office, because the convicted charge of failing to report the gas leak did not harm victims economically.

"There is no apparent victim who suffered an economic loss," said Peterson.

Justice Maria E. Stratton asked Cassandra Thorpe, attorney for Los Angeles County, about a potential scenario in which SoCalGas was ordered to pay restitution.

"Aren't you concerned about them withdrawing their plea?"

Rex Parris

"It is a concern if the case is remanded whether or not an amount of restitution is or is not set," said Thorpe.

The court further reasoned in their tentative ruling:

"We see no merit in petitioners' assertion they are entitled to restitution for losses caused by defendant's 'criminal discharge of hazardous materials,' on the theory the discharge was 'criminal conduct encompassed in its criminal failure to timely report that discharge.' This facile contention cannot survive serious scrutiny."

Earlier in the day, residents of Porter Ranch and attorneys representing nearly 40,000 plaintiffs filled a Spring Street trial courtroom to hear an update on case proceedings. Los Angeles County Superior Court Judge Carolyn Kuhl is preparing to move along a handful of the nearly 400 cases to trial. Meanwhile, plaintiffs are seeking to depose more witnesses as the utility prepares to file a motion for summary judgment. Southern California Gas Leak Cases, JCCP4861 (L.A. Super. Ct., filed Feb. 2, 2016).

There was brief mention of the recently released report by third-party investigator Blade Energy Partners, which found well casing corrosion was responsible for the gas leak. Plaintiffs said the report showed the well in question, SS-25, was not tested every five years. Defendants, meanwhile, said the report does not aid plaintiffs' permanent nuisance claim because the report said the utility complied with gas storage regulations and that there were no casing issues.

The issue might be explored more during a status conference next month. "This is a very complicated and significant issue," said Kuhl.