March 20, 2025 • 25 mins
Southern California’s wildfire season has turned into a year-round crisis, and with it comes a surge in litigation. On this episode of the Emerging Litigation Podcast, we explore the aftermath of the devastating January 2025 wildfires, including the high-profile Eaton and Palisades fires, and the complex legal battles now unfolding.
My guest, Ed Diab, is a founding partner of Diab Chambers LLP, a boutique law firm with a sharp focus on wildfire litigation. Ed and his team have worked alongside national firm Baron & Budd to represent over 100 public entities in wildfire cases dating back to 2015. His deep experience in this area, combined with an insider’s perspective on utility liability, makes him uniquely qualified to discuss the challenges and strategies involved in these high-stakes cases.
As of early 2025, more than 100 cases have been filed against utilities like Southern California Edison, with public entities, individuals, and insurance carriers seeking damages for widespread destruction. In this conversation, Ed breaks down the causes of these fires, the legal strategies in play, and the uphill battle plaintiffs face when going up against major power utilities.
Ed walks us through California’s unique inverse condemnation doctrine, negligence claims, and how utility companies defend themselves—challenging liability, infrastructure management, and fire prevention efforts. We also discuss the challenges of evidence preservation, particularly when transmission towers remain critical to the state’s power grid.
From the legal wrangling over the Eaton Fire to the complexities of the Palisades rekindle, Ed shares the latest developments and what litigators should expect moving forward. His insight into the coordination between local and national firms and how they’ve successfully pursued wildfire claims makes this a must-listen episode for anyone following disaster-related litigation.
🎧 Tune in for insights on:
✅ Common causes of wildfire litigation and liability determination
✅ How plaintiffs build cases against utilities through expert investigations
✅ Strategic use of inverse condemnation and negligence claims
✅ Key defenses raised by utilities and how plaintiffs respond
✅ The current status of major wildfire cases and emerging litigation trends
If you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com.
Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Tom Hagy (00:03):
Welcome to the Emerging Litigation Podcast.
I'm Tom Hagy, longtimelitigation enthusiast, editor,
publisher and now podcaster.
I'm founder of HB Litigation,which is now part of Critical
Legal Content, a business Ifounded in 2012 to serve as a
content marketing department forlaw firms and litigation
(00:24):
service providers.
And now here's today's episode.
If you like what you hear,please give us a rating.
If you want to reach me, pleasecheck out my contact
information in the show notes.
So, Ed Diab, thank you verymuch for talking with me about
this again.
Unfortunately, it's beenwildfire season again and, if
(00:46):
I'm not mistaken, I didn't checkthe news today about South
Carolina whether the Carolinasare still having trouble with
their wildfires, but that waswithin the last few days anyway.
So I guess what I wanted to getfrom you is some background
first and then get you to updateus on what you've been up to
this week.
What are some of the commoncauses of wildfires that lead to
(01:08):
litigation?
Ed Diab (01:09):
Yeah, good question, Tom.
It's interesting.
I heard you say wildfire seasonin California.
Now we say there is no seasonanymore.
It's almost year round,unfortunately.
To answer your question, though,in terms of the ones that
actually lead to litigation,you're talking about ones that
are generally going to be causedby a utility company.
In California, there's threemajor ones PG&E, Pacific Gas and
(01:32):
Electric, Southern CaliforniaEdison, SCE and then San Diego
Gas and Electric.
There's a couple other onesthat we've litigated here
against Liberty Utilities andthings like that, but those are
the three major ones here,against liberty utilities and
things like that, but those arethe three major ones.
And because of California'slaws, there's a California
constitutional section thatactually allows us to sue.
(01:52):
The Article 1, Section 19 ofthe California Constitution
actually allows us to sue theseutilities under a theory called
inverse condemnation, and it'sactually underpinned with like
eminent domain and a taking, andit essentially this is not a
don't take this as the legalexplanation of it, it's more of
a lay person's explanation.
But, in short, the state sayslook, you utility company have a
(02:16):
monopoly to provide power andin exchange for that we're going
to hold you to a really highstandard, which means that if
your equipment is at allinvolved in sort of the start of
a wildfire and it's really gotto be, as it's deliberately
designed and constructed as themagic language, then they are
basically on the hook for it.
Now the utility companies, totheir credit, have very good
(02:39):
lawyers who are going to defendthat up down, left and right.
But from a plaintiff'sperspective, that's what we look
at, and then, just broadlyspeaking, we've got a team of
experts that investigate all thefires.
So to your question what arethe causes of these?
You've got a ton of differentthings.
Unfortunately, I believe, arsonis on the rise we saw a lot of
(02:59):
that during the LA fires whichis horrendous and despicable.
I think everyone can agree withthat.
Sometimes you have lightningstrikes.
Those are obviously things thatare just forces of nature Camp
fires, all the things thatyou're taught when you're a
grade school kid to avoid.
But those are the many causesof the fires that we've seen.
Tom Hagy (03:19):
I can guess a little bit from talking to you before.
But so how do you determinethat the utility is liable for
the fire, that they somehow areresponsible?
Certainly not lightning, butmaybe in cases of lightning too,
I don't know, but how do youdetermine that they're liable?
Ed Diab (03:33):
Yeah, look, ultimately, a true determination of
liability would require a trial,right.
But in terms of how can wesqueeze and push the utility
company to a place where theirlawyers say, hey, you know what,
we've got enough exposure hereto start resolving cases?
There's a couple ways we do it.
Number one in these fires it'sreally important to have experts
(03:54):
on the ground right away, andthat's because, literally, the
evidence is changing as the fireburns on and things like that,
and so these experts are on theground.
They're usually retiredfirefighters or ATF or different
disciplines where they've hadtraining in terms of how to look
at cause and origin indicators.
They're literally putting flagson the ground, tracing where
(04:15):
the fire propagated from.
So that's one way.
Two honestly, in this sort ofmodern world, we've got UCSD has
a great program where they'vegot wildfire detection cameras
all over the place now.
So technology is helping.
Specific to the Eaton fire,which we're litigating now, in
Los Angeles, there was asurveillance camera footage
(04:37):
actually from an Arco gasstation that happened to catch a
flash in the hills right wherethe Eaton fire started.
Those are the more sort ofpractical ways we figure these
out and then, once we've got alocation of where we think the
fire started.
We then bring in a host ofother experts, electrical
engineers, metallurgists, allthese different disciplines that
(04:58):
kind of help us understand whatwas the mechanism here.
How did this fire start?
Tom Hagy (05:02):
So when you're filing claims, what typical counts are
you bringing?
You mentioned inversecondemnation.
What other what counts are youbringing these under?
Ed Diab (05:10):
Yeah, I think you're going to see a general
negligence claim as well.
The reason strategically andI'm not giving away state
secrets here that we bring aninverse claim is because it's
got really strong teeth to it.
You can ask for things likeattorney's fees, costs and
things associated with thatinterest Negligence again,
that's the run-of-the-mill stuff.
Hey, you had a duty to do this.
(05:31):
You didn't meet that duty.
You caused problems.
And then, specifically for ourpublic entity clients so we tend
to represent the publicentities.
In the Eaton Fire case we'refortunate to represent the
county and cities that wereaffected by the Eaton Fire We'll
bring violations of certainCalifornia laws.
There's health and safety codesfor fire, suppression costs,
(05:52):
damages, things for emergencyresponse, property damage,
environmental restoration, andthen there's some other causes
of action we'll throw in there,like trespass and nuisance.
Those are more sort of legaltechnicalities, but I would say
that usually covers the spectrumof things we're looking at.
Tom Hagy (06:08):
Yeah.
So what would you say?
Your biggest challenges are inthese cases, and I want to talk
about how you've been successfulin the past.
But when going into this, whatdo you say?
Okay, here are the things Ihave to overcome.
Ed Diab (06:19):
It's a good question, tom, I think, just like any case
you really.
It's that first leg of the case, which is liability, right,
there's a lot of things thathappen, and often these fires
are a combination of events thatkind of come together.
So you have red flag warnings,which warn of high winds that
are impending, and then you'vegot to look at what did the
(06:39):
utility do in light of thesewarnings.
Now, psps, these power safetyshutoffs, are becoming much more
common and an accepted practice.
Obviously, people hate havingthe power out, but we've now
seen the alternative, and so,until the utility companies can
start upgrading theirinfrastructure, undergrounding
lines, things like that, it'sjust this reality of choosing
(07:03):
between the lesser of two evils.
And then, at the end of the day,you've got really good lawyers
who represent these powercompanies.
They do a great job defendingthem in these cases, and so our
task is basically trying tofigure out how did this complex
network of electricalinfrastructure cause this fire?
In some instances it'sstraightforward We've got
(07:24):
literally a tree that's leaninginto a power line where they
caused a spark, and that getsinto sort of the vegetation
management responsibilities thatthese utility companies have.
In other cases, it's a littlemore nuanced, and so we've got
to do a ton of data collection.
So we work on these extensiveprotective orders because, at
(07:45):
the end of the day, you'redealing with sensitive
information as it relates to ournational security with respect
to the grid, and so we'regetting these data dumps from
the power companies to threadtogether the story and figure
out what happened here, and thenwe try to narrow and winnow
down to pinpoint where was thepoint of failure.
Tom Hagy (08:05):
Okay, gotcha.
And then with the typicaldefendant being, say, a utility,
and you can tell me othervarieties you might have, but
typically, in these cases,utilities.
What sort of defenses do theybring up?
Ed Diab (08:18):
That's a really good question.
With respect to utilitycompanies, they will typically
challenge the applicability ofinverse condemnation.
That's a law that's gotten alot of attention in California.
Knock on wood, the plaintiffside has been pretty successful
at beating down these challengesover the last 10 years or so,
maybe, frankly, even more thanthat.
(08:38):
And that's a push and pull of,as we like to say that again,
I'm biased, I'm a plaintiff'slawyer, but again you have a
monopoly to provide power.
You're an investor, ownedutility.
That's another thing.
That kind of pulls them in adifferent direction.
They're understandably, justlike any public company have to
show profits, return money toshareholders.
(08:58):
I get that from a pure economicstandpoint, but does that
incentivize them to invest inkeeping their infrastructure
safe?
That's where you start to getinto these different, like I
said, the push and the pull ofit all.
And so, in terms of thedefenses number one they're flat
out going to say hey, provethat it started on our equipment
.
Like I said, when you have atree into a power line, it's a
(09:20):
little tough.
So maybe they start to get atdid we have responsibility for
managing that tree?
Did we do appropriatemanagement?
And they're going to say thingslike we inspected the tree and
making it up two years ago andit was fine and nobody could
have predicted this could havehappened, things like that.
We obviously have our argumentsto go back and forth on that
(09:44):
front.
When it's a more complex ornuanced fire, as I might say,
then you're getting into sort ofthe science the fire science of
how these things happen, theelectrical side of things, and
we might have to have atechnical fight over.
Did this policy for reclosing,for example, this device that's
used to basically turn powerback on when the network detects
a fault, was that setappropriately?
(10:06):
Should it have reclosed in thissituation?
Should it not have?
So you're getting into a lot ofthese policy management
decisions.
And look again, I'm not givingaway state secrets here.
Managing an electrical grid isnot an easy task, to be fair,
and I try to always give bothsides on this thing.
I think they're trying tofigure out look, they don't want
to be in a damned if they do,damned if they don't situation
(10:28):
and unfortunately, with anylitigation, you're looking at it
with hindsight.
So do I think these utilitycompanies are going out there
intending to do this stuff?
No, I think all of us can agreeon that.
But it's just a question ofwhere are these sort of like
boundary conditions that webelieve on the plaintiff's side
they need to have set andobviously on their side they
think it's a different set ofstandards.
(10:49):
That's the tug between the twosides.
Tom Hagy (10:52):
Can you just tell me, since we talked a couple of
years ago, some of those casesare they?
Have those cases wrapped up,settled, or what is the status
of the ones that I talked to youabout a couple of years ago?
Ed Diab (11:03):
Yeah, gosh, it's been a while.
I would say for the most part,most of these cases end up in
resolution, without again givingaway anything confidential In
terms of the dollar values thatthese cases resolve, for that's
driven largely by again how goodof a liability case can we put
together?
Can they show us a threat that,hey, if this went to trial we
(11:26):
might lose?
It's just like any other caseyou've got out there.
There are some cases that arebeing litigated much more
heavily.
For instance, there's a Marshallfire in Boulder County,
Colorado, that's being litigatedquite a bit and may actually go
to trial sometime this fall.
But for the most part, largelythe California litigations have
started to resolve.
We were also involved in theMaui fires.
(11:48):
There's some more it's calledprocedural issues there,
specifically governing howinsurance companies can recover
in these fires.
That actually went up to theHawaii Supreme Court and is
going for guidance, and sothat's still being worked
through.
But I would say for the mostpart these cases, at least the
ones from a few years back, arein what I would call a
(12:09):
resolution posture.
Tom Hagy (12:11):
Okay, all right, let's bring us up to date.
I've been reading about this.
It sounds like wildfires aregetting more frequent and more
intense, and so you've been busythe last few days dealing with
the fires from earlier this year.
Tell us what has happenedrecently?
Sure.
Ed Diab (12:27):
The world's eyes were turned to Los Angeles in early
January when a series of firesbroke out there.
Obviously it got widespreadcoverage.
You had the Palisades that werecompletely destroyed.
You had the Eaton Fire area,which is Altadena, pasadena,
parts of LA County that were,you know, again, completely
decimated.
I think, frankly, the shockfactor is again, it's not
(12:58):
comparing other fires butgenerally speaking some of the
fires that we've dealt withhaven't always been in these
densely populated areas.
You certainly had that inHawaii, you had that in the
North Bay fires, that kind ofhit wine country where there's
something jarring about justseeing blocks and blocks of
streets that are just flat outleveled of streets that are just
flat out leveled.
In terms of the litigation sideof things, I would say the Eaton
fire is basically just gettingstarted.
From a litigation standpoint,there have been I think we're up
(13:20):
to close to 100 cases that havebeen filed on behalf of
individuals, public entities,insurance subrogation, and the
first hearing in the case isactually March 17th, so 11 days
from now.
We've had several hearings inthe case, which have been
interesting, with both sidestrying to figure out what we can
do in terms of investigatingthe evidence at issue.
(13:42):
So in the Eaton Fire case youhave transmission level towers,
which are the high voltage steeltowers that you might see.
It's not the distribution leveltowers.
These are the things that youmight see.
It's not the distribution leveltowers, these are the things
that you might see on your blockor your home neighborhoods.
These are the transmissiontowers that move power miles and
miles away.
The issue there is theplaintiffs, and I think the
(14:04):
defendants would reasonablyagree.
We've got a right toinvestigate and inspect the
evidence.
On the flip side, thosetransmission towers are off now
and have been for some time.
There was a re-energizationissue that happened, but putting
that aside, for the most partthese things have been off and
our state's grid depends on thisenergy.
So you have Edison in courtsaying, hey, we've got to get
(14:27):
the power back on Again.
Any judge sympathetic to that'sreasonable.
On the flip side, the judge isalso looking at the plaintiffs
and saying, look, we've got aresponsibility to preserve this
evidence, figure out what'sgoing on.
So I think that both sides areworking towards that.
The judge in this case has beenphenomenal in terms of trying
to figure out how to balancethese interests, and it's not an
easy task for anyone.
(14:49):
That's the latest and greatest,I would say, with the Eaton fire
On the Palisades front, alittle trickier case.
Again, I'm not going to shareany state secrets here, but
publicly it looks to have been afire that actually rekindled.
So sometimes that happens aswell A fire that was originally
put out starts up again.
You'd be shocked at how manymonths sometimes can go by when
(15:10):
fires can rekindle.
So there's some litigationaround there.
But it's more centered on again, this is my speculation now,
but I think it's centered onmore of the response side to the
fire.
There's lots of immunitiesthere in terms of the fire
response to it.
So it'll be interesting to seehow that litigation plays out.
But yeah, I think.
(15:30):
And then there was actually twoother fires the Hearst fire in
Los Angeles and the Hughes firein Los Angeles that we're still
investigating and looking at aswell.
Plenty of stuff that came outof that unfortunate January that
LA had.
Tom Hagy (15:45):
Are the defendants?
Are they strictly utilities,because there are sometimes.
You mentioned other types, butare there other types of
defendants?
Ed Diab (15:54):
We've had other cases where there've been other
defendants.
So, for instance, the Mill Firewas a fire in California that
started at a mill where sort ofwood is being processed and
things like that.
Okay.
But I would say in most ofthese instances you're talking
about cases where you're dealingwith utility companies.
There have been some cases witha factory explosion, things
(16:18):
like that, but I would say interms of the litigation world,
90, 95 percent probably you'retalking about utilities, OK so
who is the judge overseeing thecase or the one?
case Judge Siegel in Los AngelesCounty Superior Court.
Tom Hagy (16:35):
Okay.
Ed Diab (16:35):
And yeah, we've had Judge Heiberger previously on a
lot of the LA fires from beforewho oversaw those cases.
I believe he recused himselfbecause he I don't think
thankfully lost his home in thePalisades fire but was evacuated
or something.
So it's just getting toughbecause everyone knows someone
that's been affected by thisthing.
(16:56):
But yeah, it looks like it'llbe Judge Siegel.
Yeah, yeah.
Tom Hagy (17:00):
We all do.
I even know people who've lostat least two people completely.
You lost everything.
And I've got a daughter outthere who's like telling me
about the smoke and it's justanyway.
It's just.
Yeah, everybody seems to knowsomebody.
Now tell me your firm.
You guys specialize in this.
Just say a little bit aboutyour firm and who you're working
(17:22):
with on this Cause.
Ed Diab (17:22):
you're not a you're not a giant shop.
Yeah, we're actually a prettysmall shop three partners, two
paralegals.
Diab Chambers is my firm, butwe've had the fortune and
pleasure of working alongsideour co-counsel over at Baron
Budd.
They're a firm that we've knownfor a long time.
In fact, the lead shareholderwho works on me works on these
cases with me.
I've known for gosh probably 15plus years or so John Fiske
(17:43):
over there and Scott Summy andhis practice group.
Baron Budd's a huge nationalfirm, works on a lot of national
litigation.
We partnered with them long ago, bringing our respective
backgrounds and expertise,Myself having done some fire
cases, their team having done aton of environmental litigation
literally the cases you readabout in the news and they have
(18:07):
a lot of public entityrepresentation experience.
So that was a unique angle thatwe brought to the table.
So the two firms have worked onquite literally every single
wildfire case dating back to the2015 fires in California.
We've had a successful run.
We've represented now over 100public entities in these fire
cases and, yeah, it's just areal pleasure to work.
Our clients are very different.
Right, we obviously haverepresented individual
(18:29):
homeowners and things like that,but when you're talking about
counties and cities, the clientsyou're dealing with on a daily
basis really are the cityattorneys and the county council
, and so they're lawyer clientswho are phenomenal, that
collaborate with us.
They work alongside us todevelop the case, so we feel
really privileged and honored todo that.
Tom Hagy (18:49):
Okay, yeah, Baron Budd is certainly.
When I started writing aboutmass torts and asbestos in the
early 80s, Fred Baron was one ofthe top five, easily, in that
area of law.
Totally yeah, so you're workingwith a great firm, Ed.
That's all I wanted to know.
I'll let you get back to whatyou're doing If there's anything
(19:10):
else you wanted to say.
I appreciate your time.
I know you're busy.
Ed Diab (19:14):
No, thanks, Tom.
I always appreciate meetingwith you.
Thanks for reaching back out,and if there's anything else we
can talk about, I'd love to.
Tom Hagy (19:20):
Okay, will do.
Thank you, Ed.
Ed Diab (19:21):
All right, Tom, have a good one.
Tom Hagy (19:28):
The Emerging Litigation Podcast is a
production of Critical LegalContent which owns the awesome
brand HB Litigation.
Critical Legal Content is acompany I founded in 2012.
That was a long time ago.
What we do is simple we createcontent that's critical on legal
topics for law firms and legalservice providers.
I believe we even have a catchytagline, which is your legal
(19:51):
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That kind of content can beblogs, papers, they can be
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(20:12):
That's what we do.
Once again, I'm Tom Hagy, withCritical Legal Content and HB
Litigation.
If you like what you hear andyou want to participate, give me
a shout.
My contact information's in theshow notes.
Thanks for listening.
Thank you.
Welcome to the Emerging Litigation Podcast.
I'm Tom Hagy, longtimelitigation enthusiast, editor,
publisher and now podcaster.
I'm founder of HB Litigation,which is now part of Critical
Legal Content, a business Ifounded in 2012 to serve as a
content marketing department forlaw firms and litigation
(00:24):
service providers.
And now here's today's episode.
If you like what you hear,please give us a rating.
If you want to reach me, pleasecheck out my contact
information in the show notes.
So, Ed Diab, thank you verymuch for talking with me about
this again.
Unfortunately, it's beenwildfire season again and, if
(00:46):
I'm not mistaken, I didn't checkthe news today about South
Carolina whether the Carolinasare still having trouble with
their wildfires, but that waswithin the last few days anyway.
So I guess what I wanted to getfrom you is some background
first and then get you to updateus on what you've been up to
this week.
What are some of the commoncauses of wildfires that lead to
(01:08):
litigation?
Ed Diab (01:09):
Yeah, good question, Tom.
It's interesting.
I heard you say wildfire seasonin California.
Now we say there is no seasonanymore.
It's almost year round,unfortunately.
To answer your question, though,in terms of the ones that
actually lead to litigation,you're talking about ones that
are generally going to be causedby a utility company.
In California, there's threemajor ones PG&E, Pacific Gas and
(01:32):
Electric, Southern CaliforniaEdison, SCE and then San Diego
Gas and Electric.
There's a couple other onesthat we've litigated here
against Liberty Utilities andthings like that, but those are
the three major ones here,against liberty utilities and
things like that, but those arethe three major ones.
And because of California'slaws, there's a California
constitutional section thatactually allows us to sue.
(01:52):
The Article 1, Section 19 ofthe California Constitution
actually allows us to sue theseutilities under a theory called
inverse condemnation, and it'sactually underpinned with like
eminent domain and a taking, andit essentially this is not a
don't take this as the legalexplanation of it, it's more of
a lay person's explanation.
But, in short, the state sayslook, you utility company have a
(02:16):
monopoly to provide power andin exchange for that we're going
to hold you to a really highstandard, which means that if
your equipment is at allinvolved in sort of the start of
a wildfire and it's really gotto be, as it's deliberately
designed and constructed as themagic language, then they are
basically on the hook for it.
Now the utility companies, totheir credit, have very good
(02:39):
lawyers who are going to defendthat up down, left and right.
But from a plaintiff'sperspective, that's what we look
at, and then, just broadlyspeaking, we've got a team of
experts that investigate all thefires.
So to your question what arethe causes of these?
You've got a ton of differentthings.
Unfortunately, I believe, arsonis on the rise we saw a lot of
(02:59):
that during the LA fires whichis horrendous and despicable.
I think everyone can agree withthat.
Sometimes you have lightningstrikes.
Those are obviously things thatare just forces of nature Camp
fires, all the things thatyou're taught when you're a
grade school kid to avoid.
But those are the many causesof the fires that we've seen.
Tom Hagy (03:19):
I can guess a little bit from talking to you before.
But so how do you determinethat the utility is liable for
the fire, that they somehow areresponsible?
Certainly not lightning, butmaybe in cases of lightning too,
I don't know, but how do youdetermine that they're liable?
Ed Diab (03:33):
Yeah, look, ultimately, a true determination of
liability would require a trial,right.
But in terms of how can wesqueeze and push the utility
company to a place where theirlawyers say, hey, you know what,
we've got enough exposure hereto start resolving cases?
There's a couple ways we do it.
Number one in these fires it'sreally important to have experts
(03:54):
on the ground right away, andthat's because, literally, the
evidence is changing as the fireburns on and things like that,
and so these experts are on theground.
They're usually retiredfirefighters or ATF or different
disciplines where they've hadtraining in terms of how to look
at cause and origin indicators.
They're literally putting flagson the ground, tracing where
(04:15):
the fire propagated from.
So that's one way.
Two honestly, in this sort ofmodern world, we've got UCSD has
a great program where they'vegot wildfire detection cameras
all over the place now.
So technology is helping.
Specific to the Eaton fire,which we're litigating now, in
Los Angeles, there was asurveillance camera footage
(04:37):
actually from an Arco gasstation that happened to catch a
flash in the hills right wherethe Eaton fire started.
Those are the more sort ofpractical ways we figure these
out and then, once we've got alocation of where we think the
fire started.
We then bring in a host ofother experts, electrical
engineers, metallurgists, allthese different disciplines that
(04:58):
kind of help us understand whatwas the mechanism here.
How did this fire start?
Tom Hagy (05:02):
So when you're filing claims, what typical counts are
you bringing?
You mentioned inversecondemnation.
What other what counts are youbringing these under?
Ed Diab (05:10):
Yeah, I think you're going to see a general
negligence claim as well.
The reason strategically andI'm not giving away state
secrets here that we bring aninverse claim is because it's
got really strong teeth to it.
You can ask for things likeattorney's fees, costs and
things associated with thatinterest Negligence again,
that's the run-of-the-mill stuff.
Hey, you had a duty to do this.
(05:31):
You didn't meet that duty.
You caused problems.
And then, specifically for ourpublic entity clients so we tend
to represent the publicentities.
In the Eaton Fire case we'refortunate to represent the
county and cities that wereaffected by the Eaton Fire We'll
bring violations of certainCalifornia laws.
There's health and safety codesfor fire, suppression costs,
(05:52):
damages, things for emergencyresponse, property damage,
environmental restoration, andthen there's some other causes
of action we'll throw in there,like trespass and nuisance.
Those are more sort of legaltechnicalities, but I would say
that usually covers the spectrumof things we're looking at.
Tom Hagy (06:08):
Yeah.
So what would you say?
Your biggest challenges are inthese cases, and I want to talk
about how you've been successfulin the past.
But when going into this, whatdo you say?
Okay, here are the things Ihave to overcome.
Ed Diab (06:19):
It's a good question, tom, I think, just like any case
you really.
It's that first leg of the case, which is liability, right,
there's a lot of things thathappen, and often these fires
are a combination of events thatkind of come together.
So you have red flag warnings,which warn of high winds that
are impending, and then you'vegot to look at what did the
(06:39):
utility do in light of thesewarnings.
Now, psps, these power safetyshutoffs, are becoming much more
common and an accepted practice.
Obviously, people hate havingthe power out, but we've now
seen the alternative, and so,until the utility companies can
start upgrading theirinfrastructure, undergrounding
lines, things like that, it'sjust this reality of choosing
(07:03):
between the lesser of two evils.
And then, at the end of the day,you've got really good lawyers
who represent these powercompanies.
They do a great job defendingthem in these cases, and so our
task is basically trying tofigure out how did this complex
network of electricalinfrastructure cause this fire?
In some instances it'sstraightforward We've got
(07:24):
literally a tree that's leaninginto a power line where they
caused a spark, and that getsinto sort of the vegetation
management responsibilities thatthese utility companies have.
In other cases, it's a littlemore nuanced, and so we've got
to do a ton of data collection.
So we work on these extensiveprotective orders because, at
(07:45):
the end of the day, you'redealing with sensitive
information as it relates to ournational security with respect
to the grid, and so we'regetting these data dumps from
the power companies to threadtogether the story and figure
out what happened here, and thenwe try to narrow and winnow
down to pinpoint where was thepoint of failure.
Tom Hagy (08:05):
Okay, gotcha.
And then with the typicaldefendant being, say, a utility,
and you can tell me othervarieties you might have, but
typically, in these cases,utilities.
What sort of defenses do theybring up?
Ed Diab (08:18):
That's a really good question.
With respect to utilitycompanies, they will typically
challenge the applicability ofinverse condemnation.
That's a law that's gotten alot of attention in California.
Knock on wood, the plaintiffside has been pretty successful
at beating down these challengesover the last 10 years or so,
maybe, frankly, even more thanthat.
(08:38):
And that's a push and pull of,as we like to say that again,
I'm biased, I'm a plaintiff'slawyer, but again you have a
monopoly to provide power.
You're an investor, ownedutility.
That's another thing.
That kind of pulls them in adifferent direction.
They're understandably, justlike any public company have to
show profits, return money toshareholders.
(08:58):
I get that from a pure economicstandpoint, but does that
incentivize them to invest inkeeping their infrastructure
safe?
That's where you start to getinto these different, like I
said, the push and the pull ofit all.
And so, in terms of thedefenses number one they're flat
out going to say hey, provethat it started on our equipment
.
Like I said, when you have atree into a power line, it's a
(09:20):
little tough.
So maybe they start to get atdid we have responsibility for
managing that tree?
Did we do appropriatemanagement?
And they're going to say thingslike we inspected the tree and
making it up two years ago andit was fine and nobody could
have predicted this could havehappened, things like that.
We obviously have our argumentsto go back and forth on that
(09:44):
front.
When it's a more complex ornuanced fire, as I might say,
then you're getting into sort ofthe science the fire science of
how these things happen, theelectrical side of things, and
we might have to have atechnical fight over.
Did this policy for reclosing,for example, this device that's
used to basically turn powerback on when the network detects
a fault, was that setappropriately?
(10:06):
Should it have reclosed in thissituation?
Should it not have?
So you're getting into a lot ofthese policy management
decisions.
And look again, I'm not givingaway state secrets here.
Managing an electrical grid isnot an easy task, to be fair,
and I try to always give bothsides on this thing.
I think they're trying tofigure out look, they don't want
to be in a damned if they do,damned if they don't situation
(10:28):
and unfortunately, with anylitigation, you're looking at it
with hindsight.
So do I think these utilitycompanies are going out there
intending to do this stuff?
No, I think all of us can agreeon that.
But it's just a question ofwhere are these sort of like
boundary conditions that webelieve on the plaintiff's side
they need to have set andobviously on their side they
think it's a different set ofstandards.
(10:49):
That's the tug between the twosides.
Tom Hagy (10:52):
Can you just tell me, since we talked a couple of
years ago, some of those casesare they?
Have those cases wrapped up,settled, or what is the status
of the ones that I talked to youabout a couple of years ago?
Ed Diab (11:03):
Yeah, gosh, it's been a while.
I would say for the most part,most of these cases end up in
resolution, without again givingaway anything confidential In
terms of the dollar values thatthese cases resolve, for that's
driven largely by again how goodof a liability case can we put
together?
Can they show us a threat that,hey, if this went to trial we
(11:26):
might lose?
It's just like any other caseyou've got out there.
There are some cases that arebeing litigated much more
heavily.
For instance, there's a Marshallfire in Boulder County,
Colorado, that's being litigatedquite a bit and may actually go
to trial sometime this fall.
But for the most part, largelythe California litigations have
started to resolve.
We were also involved in theMaui fires.
(11:48):
There's some more it's calledprocedural issues there,
specifically governing howinsurance companies can recover
in these fires.
That actually went up to theHawaii Supreme Court and is
going for guidance, and sothat's still being worked
through.
But I would say for the mostpart these cases, at least the
ones from a few years back, arein what I would call a
(12:09):
resolution posture.
Tom Hagy (12:11):
Okay, all right, let's bring us up to date.
I've been reading about this.
It sounds like wildfires aregetting more frequent and more
intense, and so you've been busythe last few days dealing with
the fires from earlier this year.
Tell us what has happenedrecently?
Sure.
Ed Diab (12:27):
The world's eyes were turned to Los Angeles in early
January when a series of firesbroke out there.
Obviously it got widespreadcoverage.
You had the Palisades that werecompletely destroyed.
You had the Eaton Fire area,which is Altadena, pasadena,
parts of LA County that were,you know, again, completely
decimated.
I think, frankly, the shockfactor is again, it's not
(12:58):
comparing other fires butgenerally speaking some of the
fires that we've dealt withhaven't always been in these
densely populated areas.
You certainly had that inHawaii, you had that in the
North Bay fires, that kind ofhit wine country where there's
something jarring about justseeing blocks and blocks of
streets that are just flat outleveled of streets that are just
flat out leveled.
In terms of the litigation sideof things, I would say the Eaton
fire is basically just gettingstarted.
From a litigation standpoint,there have been I think we're up
(13:20):
to close to 100 cases that havebeen filed on behalf of
individuals, public entities,insurance subrogation, and the
first hearing in the case isactually March 17th, so 11 days
from now.
We've had several hearings inthe case, which have been
interesting, with both sidestrying to figure out what we can
do in terms of investigatingthe evidence at issue.
(13:42):
So in the Eaton Fire case youhave transmission level towers,
which are the high voltage steeltowers that you might see.
It's not the distribution leveltowers.
These are the things that youmight see.
It's not the distribution leveltowers, these are the things
that you might see on your blockor your home neighborhoods.
These are the transmissiontowers that move power miles and
miles away.
The issue there is theplaintiffs, and I think the
(14:04):
defendants would reasonablyagree.
We've got a right toinvestigate and inspect the
evidence.
On the flip side, thosetransmission towers are off now
and have been for some time.
There was a re-energizationissue that happened, but putting
that aside, for the most partthese things have been off and
our state's grid depends on thisenergy.
So you have Edison in courtsaying, hey, we've got to get
(14:27):
the power back on Again.
Any judge sympathetic to that'sreasonable.
On the flip side, the judge isalso looking at the plaintiffs
and saying, look, we've got aresponsibility to preserve this
evidence, figure out what'sgoing on.
So I think that both sides areworking towards that.
The judge in this case has beenphenomenal in terms of trying
to figure out how to balancethese interests, and it's not an
easy task for anyone.
(14:49):
That's the latest and greatest,I would say, with the Eaton fire
On the Palisades front, alittle trickier case.
Again, I'm not going to shareany state secrets here, but
publicly it looks to have been afire that actually rekindled.
So sometimes that happens aswell A fire that was originally
put out starts up again.
You'd be shocked at how manymonths sometimes can go by when
(15:10):
fires can rekindle.
So there's some litigationaround there.
But it's more centered on again, this is my speculation now,
but I think it's centered onmore of the response side to the
fire.
There's lots of immunitiesthere in terms of the fire
response to it.
So it'll be interesting to seehow that litigation plays out.
But yeah, I think.
(15:30):
And then there was actually twoother fires the Hearst fire in
Los Angeles and the Hughes firein Los Angeles that we're still
investigating and looking at aswell.
Plenty of stuff that came outof that unfortunate January that
LA had.
Tom Hagy (15:45):
Are the defendants?
Are they strictly utilities,because there are sometimes.
You mentioned other types, butare there other types of
defendants?
Ed Diab (15:54):
We've had other cases where there've been other
defendants.
So, for instance, the Mill Firewas a fire in California that
started at a mill where sort ofwood is being processed and
things like that.
Okay.
But I would say in most ofthese instances you're talking
about cases where you're dealingwith utility companies.
There have been some cases witha factory explosion, things
(16:18):
like that, but I would say interms of the litigation world,
90, 95 percent probably you'retalking about utilities, OK so
who is the judge overseeing thecase or the one?
case Judge Siegel in Los AngelesCounty Superior Court.
Tom Hagy (16:35):
Okay.
Ed Diab (16:35):
And yeah, we've had Judge Heiberger previously on a
lot of the LA fires from beforewho oversaw those cases.
I believe he recused himselfbecause he I don't think
thankfully lost his home in thePalisades fire but was evacuated
or something.
So it's just getting toughbecause everyone knows someone
that's been affected by thisthing.
(16:56):
But yeah, it looks like it'llbe Judge Siegel.
Yeah, yeah.
Tom Hagy (17:00):
We all do.
I even know people who've lostat least two people completely.
You lost everything.
And I've got a daughter outthere who's like telling me
about the smoke and it's justanyway.
It's just.
Yeah, everybody seems to knowsomebody.
Now tell me your firm.
You guys specialize in this.
Just say a little bit aboutyour firm and who you're working
(17:22):
with on this Cause.
Ed Diab (17:22):
you're not a you're not a giant shop.
Yeah, we're actually a prettysmall shop three partners, two
paralegals.
Diab Chambers is my firm, butwe've had the fortune and
pleasure of working alongsideour co-counsel over at Baron
Budd.
They're a firm that we've knownfor a long time.
In fact, the lead shareholderwho works on me works on these
cases with me.
I've known for gosh probably 15plus years or so John Fiske
(17:43):
over there and Scott Summy andhis practice group.
Baron Budd's a huge nationalfirm, works on a lot of national
litigation.
We partnered with them long ago, bringing our respective
backgrounds and expertise,Myself having done some fire
cases, their team having done aton of environmental litigation
literally the cases you readabout in the news and they have
(18:07):
a lot of public entityrepresentation experience.
So that was a unique angle thatwe brought to the table.
So the two firms have worked onquite literally every single
wildfire case dating back to the2015 fires in California.
We've had a successful run.
We've represented now over 100public entities in these fire
cases and, yeah, it's just areal pleasure to work.
Our clients are very different.
Right, we obviously haverepresented individual
(18:29):
homeowners and things like that,but when you're talking about
counties and cities, the clientsyou're dealing with on a daily
basis really are the cityattorneys and the county council
, and so they're lawyer clientswho are phenomenal, that
collaborate with us.
They work alongside us todevelop the case, so we feel
really privileged and honored todo that.
Tom Hagy (18:49):
Okay, yeah, Baron Budd is certainly.
When I started writing aboutmass torts and asbestos in the
early 80s, Fred Baron was one ofthe top five, easily, in that
area of law.
Totally yeah, so you're workingwith a great firm, Ed.
That's all I wanted to know.
I'll let you get back to whatyou're doing If there's anything
(19:10):
else you wanted to say.
I appreciate your time.
I know you're busy.
Ed Diab (19:14):
No, thanks, Tom.
I always appreciate meetingwith you.
Thanks for reaching back out,and if there's anything else we
can talk about, I'd love to.
Tom Hagy (19:20):
Okay, will do.
Thank you, Ed.
Ed Diab (19:21):
All right, Tom, have a good one.
Tom Hagy (19:28):
The Emerging Litigation Podcast is a
production of Critical LegalContent which owns the awesome
brand HB Litigation.
Critical Legal Content is acompany I founded in 2012.
That was a long time ago.
What we do is simple we createcontent that's critical on legal
topics for law firms and legalservice providers.
I believe we even have a catchytagline, which is your legal
(19:51):
content marketing department.
That kind of content can beblogs, papers, they can be
podcasts, webinars and we have agood time doing it and S4HB
litigation well, that's the nameunder which we publish
interesting at least interestingto me legal news items,
webinars, articles, guestarticles, all on emerging
litigation topics.
(20:12):
That's what we do.
Once again, I'm Tom Hagy, withCritical Legal Content and HB
Litigation.
If you like what you hear andyou want to participate, give me
a shout.
My contact information's in theshow notes.
Thanks for listening.
Thank you.
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