On Jun 26, 6:29 am, Herbert Kanner <kan...@deadspam.com> wrote:
[OP is suing his city-owned utility provider in Small Claims over a power surge exceeding the capacity of OP's surge protector, that destroyed his computer and some other equipment.]
I assume your suit alleges negligence on the part of the City-owned utility: to wit, that they failed and omitted to take steps that any reasonably prudent utility would have done, to prevent overvoltage damage from occurring to customers' belongings due to controllable and foreseeable power surges when power was restored after a storm. That would require proof, on your part, of WHAT a reasonably prudent utility should have done under those circumstances.
You may also have a breach-of-contract claim, which would be simpler to prove, IF there was some promise or guarantee in your terms of service with the utility regarding the maximum voltage they would ever send over your lines. All you would have to prove is that they sent a surge in excess of that amount and that it caused you damage. The problem is, I doubt very much that any sensible utility would include such a clause in its contract with you, firstly because THEY are the one drafting the language and they are not going to be stupid enough to include something so one-sidedly AGAINST their own interests, and secondly because since so many of the potential causes for damaging surges are out of their control, I doubt they could protect you fully even if they tried. Frex, how do you know the damaging surge didn't happen BEFORE the power went out, caused by the same lightning strike ("Act of G-d") that also cut the power and required it to be restored? Or due to another lightning strike AFTER power was restored?
A third possibility is a statutory liability claim, if you have laws in your area that make the utility strictly liable to customers when this happens. I doubt you do, but at least it's worth looking into.
> [Others] have advised me to subpoena maintenance records for the past couple of
> years. I assume these should be records indicating what actions were
> taken to prevent excessive voltage peaks on resumption of power and, if
> available, the actual voltages that occurred.
Don't "assume" that's what you'll get, if all you ask for is "maintenance records"; if that's what you want, that's what you have to ask for: "All records showing [insert your quote here]" (whatever it is you want to see if they show). In addition, you can ask a separate request for "_All_ maintenance records for the past 2 years", Of course, the city may come back in response and say there are no such records, and what do you do then?
> This could demonstrate
> that the surge on Dec. 26/27 was abnormal.
It could, but I'm thinking even if it's "abnormal" that still doesn't necessarily mean the city is liable for it. The pertinent question is whether the city took the steps that a reasonably prudent utility supplier would have taken, i.e. the steps widely recognized in the industry as reasonably necessary, to prevent or limit such surge damage. I'm not seeing how you could get any of that into evidence, or make it have any meaning to the judge, without expert testimony. Do you have an electrician, or perhaps a line employee of a rival utility, who has specialized knowledge of that subject beyond that of a well informed ordinary person (the legal definition of an "expert"), and who could come to court and testify for you to give his OPINIONS about what a reasonable utility supplier _should_have done under the circumstances, and which your (documentary) evidence presumably will show they didn't do (or at least didn't write down, which in law is practically the same thing)? The court ordinarily will NOT allow opinion testimony about what someone should or shouldn't have done, except from a qualified expert, even in small claims court.
> I have two problems with this. In the first place, a telephone "help"
> line person told me that subpoenaed documents would not go to me, but
> would go directly to the court.
WHOSE "help" line? The court clerk's? Then believe what they say. The utility's? See below, and go find out for yourself what their records show.
> Does that mean that I would not get to
> see them prior to the court appearance?
Yes, probably you won't get to see the SUBPOENAED set of documents before trial. I am not a CA lawyer and can't speak for CA, but most small claims courts nationwide have limited or no pre-trial "discovery" available to the parties to let you find out before trial what info is known to the other side. Both sides just come into court and tell their story, with or without additional witnesses, and bringing whatever documents they already have that they think can help prove their case.
Perhaps what you need to do, if it's not too late, is bump your case up to the next higher level court, where you might have some discovery procedures available. Sometimes small claims court is not appropriate for hard-to-prove claims even if the amount in controversy is within their jurisdictional limits, and you need to go to a higher court just to get the procedural tools available to you there. Here in MD, frex, we can sue in small claims for any amount from $1-$5000, but if so, we get no pretrial discovery; yet if we sue for any amount from $5001-$10,000, the same case will be heard in the very same court but under a different set of rules that allows us to ask up to 15 written "interrogatory" questions to the other side and to require pre-trial production of documents known to the other side that are relevant to the case.
> The second problem is: how do I
> find out exactly to whom this subpoena should be served?
That's the easy part; as a citizen and a customer, you are entitled to call around and find out which office at the city-owned power company is in charge of those records. If they are in fact public records, you can perhaps go down to their office yourself, and look at them there, or ask them to make you a copy (at a price). That is a form of "informal" discovery that you can try, even in a small claims case, and would let you see the documents in advance of trial. Then, AFTER* you have done that, you have the court issue a formal subpoena, listing those documents, and have it served on the attorney for the city who has entered an appearance in your case, directed to the "custodian of records" for that particular bureau of his client the city: e.g. address the subpoena to
"Custodian of Records, Dept. of Public Works, City of Podunk" (or whatever the correct legal name is for your city, and for that department).
*If you subpoena the documents BEFORE you try informal discovery, you may find out to your chagrin that the particular files you're looking for are temporarily unavailable for public perusal because "we sent those files down to the legal department to comply with a subpoena". You will have shot yourself in the foot, and then you will NOT be able to look at them in the public-access records office, and won't see them at all until you get the subpoenaed documents produced to you at trial.
It's probably also most appropriate to actually serve your custodian-of-records subpoena on the City attorney in your case, since it addressed to his client and you should not be contacting his client directly except to the extent and in the manner that any ordinary citizen not involved in a lawsuit also has the right to do so. The attorney will then make sure that the appropriate office locates and produces copies at trial of the documents you requested, which may or may not be the same ones you found by going down to their office and looking. It would also certainly be a good idea to give the attorney a heads-up by providing _him_ with copies of any documents you previously got from your personal search of the utility's records office, and seeing if he would just stipulate to admit those at trial without having to jump thru the hoops of a formal subpoena. If you keep the attorney in the dark, don't be surprised if the stuff they produce at trial is quite different from the stuff you got by looking at the records yourself, even if they are acting in good faith; unless it is completely clear that there is only one place they could look and only one identifiable file or set of files they should produce. He can't read your mind, he can only read and interpret what you actually ask for, which may not be the same as what you really want, and thus may be different from the stuff you looked at and copied on your own. Good luck,
--
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Mike Jacobs
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