Bellwether Selection

E-Served: Jul 13 2020 4:05PM PDT Via Case Anywhere

JCCP 5000 Woolsey Fire Cases July 15, 2020 Tentative Rulings Bellwether Selections: Pick 29, divided into three Rounds For reasons more fully stated below and subject to the provisions below, the Court is inclined to arrange the chosen bellwethers in three groups, as follows: Round 1 Selections (in reverse alphabetical order, not rank order): Count Name 1 2

Weisberg Waldo

Total Loss?

TL TL

3

Vignieri

No TL

4

Snow

No TL

5

RoderickJones Parray Ornelas Ewbank Chizzo

TL

Eastern, inland Malibu ZIP West of Bell Canyon Dume/Zuma

TL TL TL TL

Bell Cyn Mulholland+ Mulholland+ Mulholland+

6 7 8 9

Region

Random?

R

P

Robertson+ Fox Sieglock Robertson+

No R

No P

Singleton

No R

P

No R R R No R

P P No P No P

Engstrom Lipscomb Lieff Cab’r Girardi Robertson+ Robins Cloud

Mulholland+ R Dume/Zuma R

Preference Eligible?

No P P

Pl. Firm

Round 2 Selections (in reverse alphabetical order, not rank order): Count 10 11 12 13 14 15 16 17 18 19

Name

Total Loss?

TL Warden TL Miller TL Mercer Jordan/Poole TL TL Gibbs TL Denson TL Christopher TL Burns No TL Bishop TL Ahmed

Region

Random?

Dume/Zuma Mulholland+ Mulholland+ Dume/Zuma Dume/Zuma Dume/Zuma Westlake V. Mulholland+ Th’nd Oaks Bell Cyn

R R R No R R No R R R R R

Round 3 Selections (in reverse alphabetical order, not rank order)

1

Preference Eligible?

No P P P P No P P No P P No P No P

Pl. Firm Robertson+ Robertson+ Robertson+ Singleton Panish Lieff Cab’r Singleton Robertson+ Robertson+ Robertson+

Count Name 20

5250 Horizon

Total Loss?

TL

Region

Random?

Dume/Zuma

R

21 22

Pokras (AG) McIndoe/Ma

TL TL

Mulholland+ No R Dume/Zuma R

No P P

23 24 25

Levy Jones, Gary Heiting

No TL TL TL

Bell Cyn R Mulholland+ R Dume/Zuma No R

No P P P

26 27 28 29

Gomez (AG) Geluso Freeman (AG) Cielo Farms (AG)

No TL No TL TL No TL

Mulholland+ Mulholland+ Mulholland+ Mulholland+

P No P No P No P

No R R No R No R

Preference Eligible?

No P

Pl. Firm Blum Collins Robertson+ Robins Cloud Robertson+ Robertson+ Engstrom Lipscomb Robertson+ Robertson+ Robertson+ Robertson+

Procedural History: Exactly one year ago—i.e., long before a COVID-19 pandemic was foreseen—the parties and the Court created a process to select a suitable number of representative households from the vast pool of filed and unfiled cases which arise out of the November 2018 Woolsey Fire in western Los Angeles County and eastern Ventura County. On July 15, 2019, the Court by Case Management Order No. 2 ordered that 99 plaintiff households be randomly selected from the then-available data and that such plaintiffs would be required to provide supplemental discovery beyond the bare minimum required of all plaintiffs once their pleading has been brought into this coordinated proceeding.

At the urging of plaintiffs’ leadership, the Court attempted to include a pool of agricultural plaintiffs in the initial bellwether group, but the original random pool was so skimpy (i.e., one agricultural plaintiff—Semler, aka Malibu Wines) that the pool was intentionally supplemented on September 15, 2019 with additional plaintiff groups recruited from attorney suggestions (18 units) and by reference to the then extant Brown Greer data (four more units). The raw pool of agricultural claims now remains relatively small with 16 identified candidates out of a total pool of 65 candidates (including both agricultural and homeowner candidates).

By September 15, 2019 the original pool of 99 random candidates had shrunk to 43 (42 homeowners and 1 agricultural). Each such candidate was to have completed the supplemental discovery required by Revised CMO No. 2. Not all plaintiffs complied. For this reason, it now has shrunk to 30 homeowners (counting all members of a household as a single candidate) and one agricultural candidate. To the Court’s perception there has been substantial compliance by remaining random candidates at the time that both sides were expected to identify their slate of suggested bellwethers (delayed as it was by the COVID-19 pandemic). The Court is, however, giving defendants Southern California Edison and Edison International one extra pick in Round 1 because the Court had intended to include the Popson homeowner candidate (a random pick in the pool since July 2019) as a suitable bellwether only to learn that it had been pulled at the last minute due to those plaintiffs’ health issues and resulting inability to

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provide timely discovery if selected. The Edison Defendants’ objection that they “were effectively deprived of a selection” is well taken.

Some months after the random selections had been made and as anticipated by Revised CMO No. 2 (filed September 15, 2019), the Court allowed any plaintiff to volunteer as a “walk-on” for potential inclusion in bellwether selection. Thirty-six candidates (34 homeowner and two agricultural) self-identified, and they were allowed to join the exercise on the understanding that they too had to promptly provide the extra level of discovery expected of the random selections.

There are now an additional 19 “walk-on” candidates with substantially compliant discovery (at least in the view of plaintiffs’ leadership.)

The Court allowed Plaintiffs’ Leadership and the Edison defendants to each list 15 homeowner (i.e., non-agricultural and non-tenant1) picks and five additional agricultural picks. The separately-represented plaintiffs who had kept some distance professionally from the Plaintiffs’ Leadership (sometimes self-identified as the “Respectful Dissenters”) were allowed to list up to six additional homeowner picks and two agricultural picks. The Court eventually got 15 homeowner picks and five agricultural picks from Plaintiffs’ Leadership and from Edison, respectively, and five homeowner and one agricultural additional picks from the “Respectful Dissenters.” This creates an unavoidable imbalance in the number of plaintiff picks versus defense picks for inclusion at this time.

Given the passage of time before civil operations could resume, the Court thereafter asked counsel for additional commentary on their adversaries’ picks and their own picks. Defendants directly answered the Court’s invitation to rank their hostility to plaintiffs’ collective picks. The plaintiff side, expressly speaking with a unified voice for these purposes, affirmatively ranked in list order the six homeowners and two agricultural candidates which they felt most deserved inclusion. The Court understands why Plaintiffs’ Leadership (or any other plaintiff attorney) would not want to directly criticize the suitability and strength of any filed plaintiff claim. In response to the Court’s further invitation for a final ranking of which bellwethers a given side most wanted, the defendants provided such a list, and the Plaintiffs’ Leadership in reply said nothing to revise the list of six previously supplied and instead spoke in specific response to the Edison defendants’ criticisms of their candidates.

The Court was also given access to the BrownGreer database which has usefully organized damages discovery supplied to date by plaintiffs in the various pending cases. The Court has taken advantage of this to confirm a few facts; e.g., that 5250 Horizon is the actual title-holder and thus plaintiff for the homeowner previously identified for bellwether selection purposes as “McPartlin.” Review of that database by the Court has not in any way been a material basis on which these selections have been made so the Court feels no further affirmative disclosure of its independent research efforts thereby is needed. The total time spent so far, including enrollment and initial software upload, was less than 60 minutes.

The Court is aware that additional cases will be filed because the statute of limitations is not yet so close as to require all remaining plaintiffs to file in some court. Based on the Edison 1

The Court understands that the parties mutually agree that inclusion of “homeowner” bellwether candidates who own a property which is rented out to others is acceptable.

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Defendants’ submission, the Court understands that the Brown Greer data suggests that as of this approximate date (i.e., June 19, 2020) 1,813 of 4,766 claimants have not yet filed. The Edison Defendants have many objections to the alleged information disadvantage, and the Court has recognized this via the decision to allow these Defendants to have an extra pick in Round 1.

Resulting Lists and Intended Use of Same: The lists provided are intentionally NOT presented in any rank order, and the Court reserves discretion as to how many homeowners to include in the first trial (and in any subsequent trials) and which homeowners, with the understanding that all plaintiffs in a given homeowner household are tried together. Since it is foreseeable that some of the Round 1 cases may settle or be dismissed for whatever reason, the Court reserves the right to jump one or more Round 2 plaintiffs into Round 1 before trial selections are made to maintain a balanced pool of bellwethers in Round 1. The same process is intended for the smaller number of Round 3 homeowners which can re-populate gaps in Round 2.

Comments on Inclusions and Exclusions from Rounds 1-3: The parties jointly identified two homeowners in their original nominations: Weisberg and Waldo. They have thereafter ranked them in various positions (e.g., Weisberg remains the collective plaintiffs’ No. 1 pick and Waldo is not included in the list of six homeowners), but the initial uncoached willingness of both sides to suggest the same two homeowners speaks strongly for their inclusion.

Given the state of filings when the random selections were made many months ago, Robertson & Associates and its allied firms have a disproportionate share of the random picks, as well as the walk-ons. The Singleton Firm has also provided a number of walk-ons as candidates, and the Edison defendants found favor with one of the Singleton walk-ons (Snow household) by including it in their initial list. While the Court has tried to balance the plaintiff representation in the selections, there is no practical way to overcome the predominance of the Robertson cases in doing so. The Court has found favor in including the defense selection of the Singleton walk-on (Snow), particularly as it is an example of damage less than a total structural loss.

In Round 1, the Court has included two of the first three picks by each side, omitting only plaintiffs’ suggestion of the Gibbs household, and the Edison defendants’ suggestion of Ahmed household. Plaintiffs stop ranking after No. 6 and do not rank the jointly nominated Waldo household so the relative desirability of the rest of plaintiffs’ nominations (including the “respectful dissenters’” supplemental picks) in the view of plaintiffs can only be determined by reading their prose and considering the intensity of defendants’ opposition rankings. The Court has included four of plaintiffs’ six ranked picks in Round 1 and four of defendants’ first nine ranked picks in Round 1. To pick up the jointly approved Waldo household, the Court is also including defendants’ No. 12 (unnumbered by plaintiffs), and the Court is including defendants’ No. 14 (Snow) for reasons previously noted.

Notably, and quite intentionally, the Court has included five preference-eligible households in Round 1 (Ornelas, Parray, Roderick-Jones, Vignieri, and Waldo) and five such households in Round 2 (Burns, Denson, Jordan, Mercer, and Miller), which means that over half of the households in Rounds 1 and 2 are preference-eligible.

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Five of the Round 1 picks come from the random pool and eight of the Round 2 picks are random picks as well, which means that over two-thirds of the Rounds 1 and 2 picks are random.

Defendants object to the inclusion of any agricultural claims in the first bellwether trial on the grounds that they each have fact-specific, one-off issues that would consume an undue amount of trial time. For purposes of populating the Rounds 1 and 2 lists, the Court agrees with defendants, but it has included agricultural claims in Round 3, avoiding, however, the unique agricultural claims which involve tens of millions if not hundreds of millions of dollars and many experts; e.g., Semler and Zacha.

For Round 2, the Court did include the most contested picks omitted from Round 1; i.e., Gibbs for plaintiffs and Ahmed for defendants. The balance of the picks were chosen with consideration of rankings (both pro and con), preference-eligible status, inclusion of claims less than total structural loss, geographic dispersion, representation diversity, and randomness.

Despite plaintiffs’ arguments for inclusion of the Glass household, the Court has consciously omitted it because so much of the claimed damages relates to a start-up business’s efforts to host a wedding venue which had not yet launched at the time of loss. This does not appear to be a good investment of scarce trial time. See generally Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 774-76. The Court left out three additional plaintiff homeowner picks discussed in the final brief (Buckley/Hutchinson, Leavelle, and Mershon) because they seemed redundant to bellwethers already selected and because their inclusion would imbalance the final result as between plaintiff and defense picks.2 The final selections also omit three additional homeowners proposed by Mr. Singleton’s office, but he now has three of his client households in Rounds 1-2, including two clients that he “walked on.” The Court intentionally limited the agricultural candidates in Round 3 to four of the 11 names suggested and specifically omitted Zacha due to the complexity of its damages claims for reasons noted in more detail by the Edison Defendants.

Counsel for Plaintiffs’ Leadership, counsel for the specific plaintiffs in the selected bellwethers, defense counsel for Edison, and counsel for the other appearing defendants are encouraged to commence a dialogue on what might be a reasonable sequence of discovery for Rounds 1 to 3, dependent perhaps on when a final Fire Report is provided by CalFire and/or how this Court rules on the pending Motion to Enforce Subpoena. The timing of a first jury trial is entirely dependent on the current challenges in conducting jury trials for criminal cases, which have statutory preference over other matters so it is very hard to predict at this time when a civil jury trial can be safely conducted in Los Angeles County with an adequate pool of potential jurors. The latest General Order, filed July 10, 2020, expressly states that: “Except as noted below [specific to unlawful detainer trials], the Court will not set any Civil jury trials to commence before January 2021.” (Order at 6:12-13.)

2

The 4-3 imbalance in defense v. plaintiff picks in Round 1 is intentional for reasons previously stated.

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