Woolsey judge asks AG why causation report can’t be public

Civil plaintiffs on Thursday were given a more complete investigative report into the 2018 Woolsey Fire, but portions that detail the state attorney general's theory of the case to support potential criminal violations committed by Southern California Edison Co. remain under wraps.

Thousands of plaintiffs, including homeowners, agricultural landowners and insurers sued the utility over the November 2018 blaze that scorched more than 96,000 acres in Ventura and Los Angeles counties.

Attorney General Xavier Becerra launched a criminal probe last year into the cause of the wildfire and kept secret until Thursday the entirety of a causation report compiled by the California Department of Forestry and Fire Protection and the Ventura County Fire Protection District.

Thursday's version of the report was labeled confidential, meaning attorneys could share the information with their clients, expert witnesses and consultants. The report remains sealed from the media and the public, prompting questions from Los Angeles County Judge William F. Highberger during a status conference Tuesday.

Deputy Attorney General H. Alexander Fisch told Highberger similar concerns arose last year in the Thomas Fire litigation before Los Angeles County Judge Daniel J. Buckley. That report was designated confidential but inadvertently published, Fisch said.

"Well, that doesn't answer the question of why it should be confidential. It just says either that it is being treated as confidential or somebody wants it to be confidential," Highberger responded.

Los Angeles County Judge William F. Highberger

Any media outlet would "basically be able to put the proponent of confidentiality to the test of demonstrating why" the matter which seems to be of public interest should be kept secret, the judge said.

"So I guess I would ask you to go back to your prosecutor colleagues and ask them how it is they think they are going to show that the unredacted part of the report shouldn't be on the front page of the LA Times tomorrow or at least next Monday," Highberger told Fisch.

Fisch contended deputies are only two months away from concluding the criminal probe.

"So we have tried to be very accommodating to let this case go forward despite my colleagues' severe discomfort with this, and I just hope that there is some consideration of that," Fisch said.

Plaintiffs also raised concerns about the secrecy of the report, specifically regarding its use for the next round of pleadings, which would be publicly filed. Filings of pleadings were paused until the report's release. In February, plaintiffs were granted leave to amend their complaint against Edison, giving them a chance to align their complaint closely with the City of Oroville v. Superior Court 2019 DJDAR 7729. In that case, the state Supreme Court rebalanced the law of inverse condemnation to give government entity defendants a better chance at defeating strict liability. Woolsey plaintiffs are pursuing several theories of liability including inverse condemnation.

"Is there anything that we would want to allege that we could or couldn't allege because we got it from a confidential source and we are putting it in now a public pleading?" asked Craig S. Simon, co-lead for subrogation plaintiffs.

"We plaintiffs want to be mindful of what is best for the public with regard to the criminal prosecution of Edison. We want to be sensitive but we also don't want to be in the whipsaw where Edison is saying on one hand we need to put something in a pleading that we are going to test within the next 60 days and on the other hand, tell us that we can't say certain things because it is confidential," Simon told the judge.

Andrew K. Walsh of Hueston Hennigan LLP suggested on behalf of Edison that an amended pleading could be circulated only among parties and wait in accordance with the attorney general until the pleadings are ready to be public. That issue will be revisited on Aug. 18.

"We look forward to reading the almost unredacted report, and we appreciate the care in which the judge is approaching all of this," Simon said in an interview Thursday.

In June, co-lead for individual plaintiffs' counsel Alexander Robertson filed a motion to enforce subpoenas on the California Department of Forestry and Fire Protection and the Ventura County Fire Protection District. The motion sought either release of the full report or commencement of fire investigator depositions, citing months of delay exacerbated by the public health emergency. Plaintiffs counsel only had a redacted version of the report. Kevin Foley et al v. SoCal Edison et al 18STCV08779 (L.A. Super. Ct., filed Dec. 18, 2018)

During a status conference last month, state prosecutors indicated to the judge that a grand jury was investigating Edison's potential criminal liability and sought more time to release the report.

Edison has not been criminally charged for its role in the Thomas Fire which scorched more than 281,000 acres in Santa Barbara and Ventura counties in 2017, and resulted in the death of a firefighter and a civilian trying to escape. More than 20 fatalities occurred during a resulting mudslide in Montecito in January 2018.

Three people died in the Woolsey fire.