10 MW 2 B 14 15 16 7 18 19 20 2 23 24 25 26 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO. Case No. JCCP 4853 BUTTE FIRE CASES RULING ON SUBMITTED MATTER: PG&E’s MOTION FOR DETERMINATION REGARDING CIVIL, CODE SECTION 3346 On June 16, 2017, hearing was held on the court’s tentative ruling on PG&E’s motion for a determination that the enhanced damages provisions of Civil Code section 3346 do not apply to injuries caused by a negligently set fire. ‘The court, having fully considered the arguments of all parties, both written and oral, as well as the evidence submitted, now affirms its tentative ruling, as amended to reflect the California Supreme Court has since granted review of Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.Sth 590, as follows: PG&E’s motion for a determination the provisions of Civil Code section 3346, providing enhanced damages for injuries caused to trees by trespass, do not apply to injuries caused by negligently set fire is granted, Civil Code section 3346 provides for double or treble damages for injuries to trees caused by trespass. ' Specifically, section 3346 states in relevant part: * Al statutory references are to the Civil Code, unless otherwise specified. 1 "RULING ON SUBMITTED MATTER: POSE’: MOTION FOR DETERMINATION REGARDING CIVIL CODE SECTION 334610 Ml 12 13 4 15 16 7 18 19 20 21 22 23 25 26 For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum. as would compensate for the actual detriment, except that where the trespass ‘was casual or involuntary, or that the defendant in any action brought under this section had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, the measure of damages shall be twice the sum as would compensate for the actual detriment, and excepting further that where the wood was taken by the authority of highway officers for the purpose of repairing a public highway or bridge upon the land or adjoining it, in which case judgment shall only be given in a sum equal to the actual detriment. Whether damage to trees resulting from a fire negligently caused is subject to the double damage provisions of section 3346 is a question of law, which has divided the Courts of Appeal. In 1970 the Third District Court of Appeal ruled section 3346 does not apply. (Gould v. Madonna (1970) 5 Cal.App. 3d 405 [hereafter “Gould”].) The Court in Gould determined it was the Legislature’s intent section 3346 does not apply based largely on the fact the Legislature created a separate, special statutory scheme in Health and Safety Code sections 13007 and 13008 addressing damages caused by fire. (Gould at pp. 406-408.) In 2009 the Second District Court of Appeal reached the opposite conclusion, holding the enhanced damages of section 3346 do apply to harm caused by a spreading fire. (Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App. 4th 442 [hereafter “Kelly”].) The Court in Kelly also based its construction of section 3346 on its reading of the Legislature’s intent. But the Court in Kelly distinguished the earlier Gould decision based in part on the intervening decision of Elton v. Anheuser-Busch (1996) 50 Cal. App. 4" 1301, which held fire constitutes a “trespass” for purposes of allowing attorney fees under Code of Civil Procedure section 1021.9. The Court in Kelly concluded fire therefore also constitutes a “trespass” for purposes of section 3346. Where there is a split of authority such as this between intermediate appellate courts, a trial court may use its discretion in determining which authority it finds more persuasive. (Sears a RULING ON SUBMITTED MATTER: PGRE's MOTION FOR DETERMINATION REGARDING CIVIL CODE SECTION 334610 uw 12 B 14 15 16 17 18, 19 20 21 22 23 25 26 v. Morrison (1999) 76 Cal.App. 4th 577, 587; Auto Equity Sales, Inc v. Sup. Ct. of Santa Clara Cty (1962) 57 Cal, 24 450.) PG&E argues this court should follow the Third District's reasoning in Gould and rule the double damages of section 3346 do not apply in this case. PG&E cites the decision from the Third District earlier this year reviewing both Gould and Kelly, and reaffirming its initial construction in Gould that section 3346 does not apply. (Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5" 590 [hereafter “Scholes”, rev. granted June 21, 2017, No. $241825.)? Plaintiffs find the Second District’s holding in Kelly more persuasive in concluding double damages are available for their losses. Plaintiffs cite, in part, a 2012 decision from the United States District Court for the Eastern District of California, which reviewed section 3346, Gould and Keily and concluded the California Supreme Court would “approve” of Kelly’s analysis. (United States v. Sierra Pacific Industries (E.D. Ca. 2012) 879 F. Supp.2d 1096.) Discussion 1. PG&E’s motion is appropriately before the court PG&E moves for a legal determination the enhanced damages provided under Civil Code section 3346(a) do not apply to injuries to timber caused by negligently set fire. PG&E cites California Rules of Court, rule 3.541 as the general procedural authority for the court to consider and rule upon its motion at this juncture in the coordinated action. Plaintiffs oppose the motion on both procedural and substantive grounds. A. Nature of PG&E’s motion Plaintiffs object there is no statutory basis for PG&E’s motion to determine whether the Grant of review by the Supreme Court does not affect the appellate court’s certification of the opinion for publication. (Cal. Rules of Cour, rule 8.1105(e\(1)(B).) Although the Supreme Court has granted review of Scholes, it may still be cited for its persuasive value, (Rule 8.1115(e\1).) 3 RULING ON SUBMITTED MATTER: PG&E's MOTION FOR DETERMINATION REGARDING CIVIL CODE SECTION 334610 W 12 13 14 15 16 17 18 19 20 21 22 23 25 26 double damage provisions of section 3346 apply to a negligently set fire. PG&E cites as authority this court's broad power as the coordination trial court under California Rule of Court, rule 3.541. ‘The court finds rule 3.541 provides authority to address PG&E’s motion. Rule 3.541, subdivision (b), directs “The coordination trial judge must assume an active role in managing all steps of the pretrial ... to expedite the just determination of the coordinated actions without delay.” Subdivision(b)(3) provides, “The judge may, for the purpose of coordination and to serve the ends of justice [o}rder any issue ... to be tried separately and before trial of the remaining issues when it appears that the disposition of any of the coordinated actions ‘may thereby be expedited.” PG&E cites the Court’s observation in McGhan Medical Corp. v. Superior Court (1992) 11 Cal.App.4" 804, 812 that the coordination trial judge is vested with “whatever great breadth of discretion may be necessary and appropriate to ease ... the logjam of cases which gives rise to coordination.” Here some 2,060 individuals seek damages against PG&E which they allege result from the Butte Fire caused by PG&E's power lines. The parties agree these claims are not being satisfactorily resolved through informal mediation, resulting in the setting of atrial for “bellwether plaintiffs” in October 2017. A separate trial for some of the plaintiffs asserting preference under Code of Civil Procedure section 36 et seq. is set also for August 2017. ‘The court finds it has authority to resolve this question of law before trial upon any other matter, PG&E’s motion is in the nature of a motion to strike the prayer for enhanced damages under section 3346(a) as a matter of law to the extent such damages are prayed for timber injured by fire. (Code Civ. Proc. §§ 436, 589, 592.) The court finds early resolution of the question whether PGE faces double damages under section 3346 may facilitate the parties” efforts to resolve their cases through mediation. Failing 4 "RULING ON SUBMITTED MATTER: PORE’: MOTION FOR DETERMINATION REGARDING CIVIL CODE SECTION 334610 MW 12 1B 14 15 16 7 18 19 20 2 22 23 24 25 thet, resolution of the issue will clarify the issues to be presented at trial. B, _ PG&E’s motion is not precluded as an impermissible “dispositive motion” brought in limine As an alternative procedural challenge, Plaintiffs assert PG&E’s motion to determine if the double damages of section 3346 apply to negligently set fires constitutes an impermissible “dispositive motion.” (See, e.g., Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App. 4" 1582.) It is not. ‘The Court in Amtower was concemed with “nontraditional in limine motions” used as, “substitutes” for dispositive motions otherwise authorized by statute, which result in the court’s “dismissing a cause on the pleadings.” (Amtower at pp. 1593-1594.) Amtower's concer does not apply here. Regardless of the court’s ruling on PG&E’s motion, no cause of action will be dismissed nor will any claim of damages be eliminated. It still lies with the jury to determine if plaintiffs ‘were damaged by PG&E’s alleged negligence and, if so, to determine the amount of their damages. Should any of those damages be to “timber, trees or underwood,” if section 3346 does apply, then the damages determined by the jury would simply be doubled. (See, ¢.g., Heninger v. Dunn (1980) 101 Cal.App.3d 858, 869.) PG&E’s motion to determine the applicability of section 3346 sooner rather than later is ‘not an impermissible, nonstatutory “dispositive motion.” 5 RULING ON SUBMITTED MATTER: PORE": MOTION FOR DETERMINATION REGARDING CIVIL CODE SECTION 334610 Tt 12 13 4 15 16 7 18 19 20 2 23 24 25 26 2, The special statutory scheme of the Health and Safety Code governing damages recoverable for fire control over the general provisions of section 3346 applying to all trespass damages A. Gould In Gould the Third District traced the history of California's statutory provisions relating to damages caused by fire. (Gould at pp. 407- 408.) Enacted in 1872, former Political Code section 3344 provided: “Every person negligently setting fire to his own woods, or negligently suffering any fire to extend beyond his own land, is liable in treble damages to the party injured.” The California Supreme Court observed this statute was “penal in nature” and thus to be strictly construed. (Clark v. San Francisco and San Joaquin Valley Raitway Co. (1904) 14 Cal. 614, 619.) ‘The Court in Gould noted Civil Code section 3346 (a), also enacted in 1872, initially read: For wrongfil injuries to timber, trees, or underwood on the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary, or that the defendant in any action brought under this section had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, the measure of damages shall be twice the sum as would compensate for the actual detriment, and excepting further where the wood was taken by the authority of highway officers for the purpose of repairing a public highway or bridge upon the land or adjoining it, in which case judgment shall only be given in a sum equal to the actual detriment. (Gould at p. 406 [Emphasis in Gould opinion].) Both statutes were repealed in 1931. (Gould at 406.) In 1944 the “Fire Liability Law” was enacted, providing liability for damages caused by fires set negligently or intentionally, as well as recoupment of the firefighting costs.’ At that time The Fire Liability Law (Deering’s Gen. Laws, 1944, Act 2586) provided: 6 RULING ON SUBMITTED MATTER: PG&E's MOTION FOR DETERMINATION REGARDING CIVIL CODE SECTION 334610 u 12 1B 14 15 16 7 18 19 20 2 22 23 25 26 the Second District Court of Appeal noted, “The additional liability for fire suppression expenses, being measured by the actual loss incurred, is substantially less onerous than the treble damages formerly recoverable for injuries due to negligent fires under 3344, Political Code, and section 3346a, Civil Code.” (County of Ventura v. Southern California Edison Co. (1948) 85 Cal. App.2d 529, 534 [Emphasis added.].) In 1953 the Legislature adopted a new statutory scheme addressing fire damages “based on” former Civil Code section 3346(a), former Political Code section 3344 and the intervening statutes addressing recovery of firefighting costs. (County of Ventura at p. 534.) Today Civil Code section 3346, as quoted above, provides double damages for damages to trees resulting from “trespass.” In 1953 the Legislature added Health and Safety Code sections 13007 and 13008 addressing damages caused by fire. (Gould at p. 406.) Health and Safety Code section 13007 provides: “Any person who personally or through another willfully, negligently, or in violation of law, sets fire to, allows fire to be set to, or allows a fire kindled or attended by him to escape to, the property of another, whether privately or publicly owned, is liable to the owner of such property for any damages to the property caused by the fire.” Health and Safety Code section 13008 states, “Any person who allows any fire burning upon his property to escape to the property of another, whether privately or publicly owned, “§ 1. Acts giving rise to liability. Any person who: (1) Personally or through another, and (2) Willfully, negligently, or in violation of law, commits any of the following acts: (1) Sets fire to, (2) Allows fire to be set to, (3) Allows a fire kindled or attended by him to escape to the property, whether privately or publicly ‘owned, of another, is liable to the owner of such property for the damages thereto caused by such fire. § 2. Escaping fires. Any person who allows any fire burning upon his property to escape to the property, whether privately or publicly owned, of another, without exercising due diligence to control such fire, is liable to the owner of such property for the damages thereto caused by such fire. § 3. Expenses of fighting fires. The expenses of fighting such fires shall be a charge against any person made liable by this act for damages caused thereby. Such charge shall constitute a debt of the person charged and shall be collectible by the party, or by the federal, state, county, or private agency incurring such expenses in the same manner as in the case of an obligation under a contract, expressed or implied.” 7 RULING ON SUBMITTED MATTER: PORE’: MOTION FOR DETERMINATION REGARDING CIVIL CODE SECTION 334610 ul 12 13, 4 15 16 7 18 19 20 21 22 24 25 without exercising due diligence to control such fire, is liable to the owner of such property for the damages to the property caused by the fire.” ‘The double damages of former Political Code section 3344, which had expressly applied to damages caused by fire, are now limited to damages caused by “trespass.” (§ 3346.) But these double damages are still “penal rather than remedial.” (Drewry v. Welch (1965) 236 Cal. App.2d 159, 172.) Based on this history of section 3344 and the provisions of the Health and Safety Code, the Court in Gould found the Legislature adopted separate schemes: one to punish and deter “togues” and “blunderers” from cutting down neighboring timber, and another addressing. linbility for fire damage. (Gould at p. 408.) The Court noted “[there] are no penal provisions in the section dealing with fires. It would appear that if the Legislature intended a penalty in connection with injury by fire, it would have placed it in the sections dealing with fires.” (Gould at pp. 407- 408.) From this history the Third District Court of Appeal concluded, “The statutory history of the sections ... demonstrates a legislative intention that only actual damages be recoverable for injury caused by negligently set fires. That history indicates that the Legislature has set up a statutory scheme concerning timber fires completely separate from the scheme to meet the situation of the cutting or other type of injury to timber.” (Gould at p. 407.) ‘The Thied District thus concluded: “We have found no indication anywhere that anyone has considered the double damages provisions of section 3346 are applicable to fire damage caused by negligence.” (Gould at p. 408.) B. Kelly Almost forty years after Gould, the Second District Court of Appeal reached the oppasite 8 RULING GN SUBMITTED MATTER: PGSE's MOTION FOR DETERMINATION REGARDING CIVIL CODE SECTION 334610 uM 12 1B 14 15 16 17 18 20 21 22 23 4 25 26 conclusion in Kelly. First, the Court in Kelly found the “plain language” of section 3346 made it applicable to fire damages. (Kelly at p. 460.) However, section 3346 refers only to damage caused by “trespass.” Nothing in the plain language of section 3346 states damages caused by “trespass” includes damages resulting from negligently caused fires. Indeed, section 3346 does not to refer to fire damage in anyway, The Court in Gould had previously observed it found no case construing negligent spreading of a fire constitutes a “trespass” for purposes of section 3346. (Gould at p. 406.) The Court in Kelly bridged this gap by citing the Fourth District Court of Appeal’s subsequent decision in Elton v. Anheuser-Busch, supra, 50 Cal. App. 4" 1301, issued 26 years after Gould, holding fire constitutes a “trespass” for purposes of Code of Civil Procedure section 1021.9, which provides attorney fees for damage from trespass to lands under cultivation or used for raising livestock. * (Kelly at p. 460.) However, Elton did not construe section 3346. Just the opposite. The Court in Elton was aware of the Gould decision and declared Gould's analysis of “trespass” for purposes of section 3346 was “inapplicable” to Elion’s analysis of “trespass” for Code of Civil Procedure section 1021.9. (Elton at p. 1308.) The Court in Elton explained Code of Civil Procedure section 1021.9 addressed “costs,” whereas section 3346 addresses “damages.” (Ibid.) Indeed, the Court in Elton declared: “As an item of costs, an award of attorney's fees pursuant to section 1021.9 is not inconsistent with a legislative intent that the only damages recoverable are those described in “ Section 1021.9 states: “In any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney's fees in addition to other costs, and in addition to any liability for damages imposed by law.” (Emphasis added.) 9 RULING ON SUBMITTED MATTER: PGRE"s MOTION FOR DETERMINATION REGARDING CIVIL CODE SECTION 334610 ul 12 13 4 15 16 7 18 19 20 2 2 23 24 25 26 Health and Safety Code sections 13007 and 13008.” (Elton at p. 1308 [Emphasis original. .) Far from being inconsistent with Gould's holding fire damages are governed by Health and Safety Code sections 13007 and 13008, the Court in Elton made clear its reasoning was consistent with the “legislative intent” limiting fire damages to Health and Safety Code sections 13007 and 13008 — as explained by Gould. (Elton at p. 1308.) Kelly additionally distinguished Gould's analysis by concluding its decision to now allow double damages under section 3346 was “easily harmonized” with the separate damage scheme of | Health and Safety Code sections 13007 and 13008. (Kelly at p. 461.) The Court in Kelly reasoned Health and Code section 13007 created “general” liability for property damages caused by fire without regard to the type of damages, whereas if the fire damaged trees then the specific multiplier of section 3346 applies. (Kelly at p. 461.) The federal district court adopted the same analysis in U. S. v. Sierra Pacific Industries, supra, 879 F.Supp.2d 1096. In reviewing Gould and Kelly, the District Court found Health and Safety Code section 13007 established general liability for fire damages, while section 3346 addresses specific liability for damage to trees through fire trespass, (Id. at pp. 1115 - 1116.) The District Court concluded: “Gould fails to differentiate between a broad statute covering any injuries caused by the negligent spread of fire and a narrow statute governing additional protection to timber, trees or underwood.” (Ibid.)* * The federal court also found it significant the Legislature has refused to address this issue. Specifically. in 2011 Assembly Bill 992 (Nielsen) was introduced to, inter alia, codify the Gould decision. (Assem. Com. on Judiciary analysis of Assem. Bill 992 as amended April 12, 2011.) The Legislature was aware of the split between the Third District Court of Appeal’s decision in Gould and the Second District's decision in Kelly. (Ibid.) AB 992 was sponsored by the Associated California Loggers to limit potential liability for fire damage. It was opposed by the Consumer Attorneys of Califomia, who argued Kelly's analysis should apply. (Ibid.) Faced with a split in appellate case law and opposing positions from two interest groups, the Legislature did nothing. 10 RULING ON SUBMITTED MATTER: PGRE'S MOSION FOR DETES SECTION 3346 ING CHVIL CODE,10 u 12 13 14 15 16 7 18 19 20 au 22 23 24 25 26 The court is not convinced. (People v. Bradley (1969) 1 Cal 3d 80, 86 [Decisions of lower federal courts are not binding on state courts, but are persuasive and entitled to great weight]; See also, Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal-App.4th 734, 764 [The opinions of lower federal courts are not binding on California courts, particularly on issues of California law.]; and Satyadi v. West Contra Costa Healthcare Dist. (2014) 232 Cal. App. 4th 1022, 1031.) In discussing whether Health and Safety Code section 13007 allows recovery of lost profits, the First District Court of Appeal found section 13007 to be a “special statutory rule” governing property damaged by a negligently set fire. (McKay v. State of California (1992) 8 Cal. App.4* 937, 939.) In discussing fire damages, the First District citied Gould’s holding the double damage provisions of section 3346 “are inapplicable to property damage resulting from a negligently set fire.” (Jbid.) This court concludes Health and Safety Code sections 13007 and 13008 constitute a special, specific statutory scheme controlling the damages available for negligently caused fire. The federal court correctly noted it should not “speculate” why the California Legislature did not act. (United States v. Sierra Pacific Industries, supra, 879 F Supp.2d at p. 1116.) But then the court did just that, explaining it was the court’s duty “...to recognize that the Legislature was made aware of the conflicting case law and Gould in particular, and subsequently chose not to pass.a bill that would have stated that trespass under § 3346 cannot be by fire.” (Ibid) While federal courts may be able to divine the Legislature’s intent from its failure to act, California courts lack such powers. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal. 4" 220, 238 [Unpassed bills have “iittie vaiue” as evidence of legislative intent. ].) The court notes this “ambiguity” in the Legislature's view of the case law regarding application of section 3346 continued into the 2012 enactment of Health and Safety Code section 13009.2 addressing claims by public agencies for wildfire damages. Section 13009.2, subdivision (d), states, in relevant part “A. public agency plaintiff who claims environmental damages of any kind under subdivision (a) or (b) shall not seek to enhance any pecuniary or environmental damages recovered under this section. This section is not intended to alter the law regarding whether Section 3346 of the Civil Code ot Section 733 of the Code of Civil Procedure can be used to enhance fire damages, but this section does confirm that if a public agency claims environmental damages under subdivision (a) or (b), it shall not seek to enhance any damages recovered under this section for any reason, and shall not use Section 3346 of the Civil Code or Section 733 of the Code of Civil Procedure to do 50, regardless of whether those sections might otherwise apply. This section is not intended to limit or change the ability of a public agency to recover costs atising from @ fire as provided in Sections 13009 and 1309.1.” [Emphasis added. u RULING ON SUBMITTED MATTER: PGRE's MOTION FOR DETERMINATION REGARDING CIVIL CODE SECTION 334610 MW 12 B 15 16 7 19 20 21 22 23 4 25 26 C. Scholes Earlier this year the Third District Court of Appeal revisited the issue of whether section 3346 applies to damage to trees resulting from negligently set fires. (Scholes, supra, 10 Cal.App.5" 590.)° The Court reviewed its prior decision in Gould, the Second District's subsequent opinion in Kelly, and the federal district court's discussion of Gould and Kelly in U.S. vy, Sierra Pacific Industries. (Scholes at pp. 601-602.) The Third District Court of Appeal was unmoved, concluding: “Kelly did not consider the legislative history or purposes behind the two sets of statutes. [Citation.] Despite Kelly's disagreement with our analysis, Gould remains viable and controlling here.” (Scholes at p. 602.) This court finds Scholes persuasive. The Third District Court of Appeal reviewed its initial decision in Gould, and the subsequent decisions by the Second District in Kelly and the federal district court and concluded its reasoning in Gould remains viable and controlling. So does this court, D. Section 3346 does not apply to damages caused by negligently set fires This court concludes the Third District Court of Appeal was correct in Gould and Scholes in holding the double damages provided by section 3346 for damages caused by “trespass” to timber are separate from, and inapplicable to, damage caused to timber from negligently set fires, which is addressed by the Health and Safety Code, Nothing in the subsequent Kelly or U.S. v. Sierra Pacific Industries decisions changes this analysis. Nor is the Third District Court of Appeal an outlier among California courts. The First District Court of Appeal recognized today’s version of the “Fire Liability Law” codified in Health * Again, the California Supreme Court has granted review of Scholes. See footnote 1 12 RULING ON SUBMITTED MATTER: PGRE's MOTION FOR DETERMINATION REGARDING CIVik. CODE SECTION 334610 rT 12 B 14 15 16 7 18 19 20 a 22 23 24 25 26 and Safety Code sections 13007 and 13008 is a “special statutory rule” governing property damaged by negligently set fires. (McKay v. State of California, supra, 8 Cal.App.4 at p. 939.) The First District also observed the double damages available under section 3346 are “penal rather than remedial.” (Drewry v. Welch, supra, 236 Cal.App.2d at p. 172.) ‘The Supreme Court cautioned such statutes being penal in nature must be strictly construed. (Clark v, San Francisco and San Joaquin Valley Railway Co., supra, 142 Cal. at p. 619. [Addressing formal Political Code § 3344.].) Finally, when the Fourth District Court of Appeal opined attomey fees could be recovered as “costs” for trespass to lands under cultivation or used for raising livestock, the Court made clea: its holding was not inconsistent with the Legislature's “intent” the only “damages” recoverable for negligently set fires are governed by Health and Safety Code sections 13007 and 13008 —as the Third District held in Gould. (Elton, supra, 50 Cal.App.4* at p. 1308.) Conclusion For the foregoing reasons, the court determines the double damage provisions of section 3346 are not applicable to damages caused by negligently set fires.” PG&E’s counsel shall prepare an order for the Court’s si Rules of Court, rule 3.1312. DATED: June _Z2, 2017 Superior Court of California, County of Sacramento 7 Plaintiffs assert some of the plaintiffs in this coordinated proceeding are also seeking damages for timber intentionally cut or damaged by PG&E in its response to the Butte Fire. Today’s holding has no application to any such claims for injuries to timber not caused by fire. 13 RULING ON SUBMITTED MATTER: PGRE's MOTION FOR DETERMINATION REGARDING CIVIL CODE SECTION 3346