ML022480261

Relief from Stay Cover Sheet Notice of Motion & Motion for Relief from Automatic Stay Notice of Motion Memorandum of Points & Authorities

ML022480261
Person / Time
Site:	Diablo Canyon
Issue date:	08/27/2002
From:	Tanner P - No Known Affiliation
To:	Office of Nuclear Reactor Regulation, US Federal Judiciary, Bankruptcy Court, Northern District of California
References
01-30923 DM
Download: ML022480261 (11)

Text

In re:

Pacific Gas and Electric Company, Debtor(s)

UNIIIL) SIA'IhS 5AN&IKUI1CY UUUKI Northern District of California

)

Bankruptcy No.:

01-30923 DM

)

R.S. No.:

)

Hearing Date:

September 16, 2002

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Time:

1:30 p.m.

)

Relief From Stay Cover Sheet Instructions: Complete caption and Section A for all motions. Complete Section B for mobile homes, motor vehicles, and personal property. Complete Section C for real property. Utilize Section C as necessary. If moving party is not a secured creditor, briefly summarize the nature of the motion in Section D.

(A)

Date Petition Filed:

April 6,2001 Chapter-11 Prior hearings on this obligation:

None Last Day to File §523/§727 Complaints:

(B)

Description of personal property collateral (e.g. 1983 Ford Taurus):

N/A Secured Creditor [ ] or lessor [ ]

Fair market value:

Source of value:

Contract Balance:

Pre-Petition Default:

Monthly Payment:

No. of months:

Insurance Advance:

Post-Petition Default:

No. of months:

(C)

Description of real property collateral (e.g. Single family residence, Oakland, CA):

N/A Fair market value: $

Source of value:

If appraisal, date:

Moving Party's position (first trust deed, second, abstract, etc.):

Approx. Bal.

Pre-Petition Default:

As of (date):

No. of months:

Mo. payment:

$_Post-Petition Default:

Notice of Default (date):

No. of months:

Notice of Trustee's Sale:

Advances Senior Liens:

Specify name and status of other liens and encumbrances, if known (e.g. trust deeds, tax liens, etc.):

Position Amount Mo. Payment Defaults 11 Trust Deed:_$_$

2"d Trust Deed:

S (Total) $_$

(DY -

Other nertinent information:

Movants seek relief from stay for cause to pursue state court litigation.

Signature Paula V. Tanner Print or Type Name Attorney for Movants Rodney and Karen Bughao CANB Documents Northern District of California o 6 I

Paula V. Tanner.

Law Offices of P; 1006 4d' Street, S Sacramento, CA Telephone: (916)

Facsimile: (916)

Attorney for Mov

- Rodney and Ka Bar No. 0887'90 aula V. Tanner*.,

uite 302 95814-4503 446-8877 446-8871 rants ren Bughao f...

UNITED STATES BANKRUPTCY COURT 9

' N6RTlIERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

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'17 18 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES On November 8, 2000, prior to the commencement of this case, Movants filed in the Sacramento County Superior Court a complaint for damages for property damage and trespass. A copy of the complaint appears as pages 4-10 to the declaration of Michael L. Johnson, filed herewith.

Relief from stay for cause Is governed by I I U.S.C. §362(d), which provides in pertinent part that the court shall grant relief from the stay... (1) for' cause...

"A bankruptcy court has great discretion in its ability to lift the automatic stay.' Garber v.

National Union Fire Ins. Co. (In re Garber), 2000 U S. App. LEXIS 11778 at *4 (9th Cit. 2000).

Various factors have been cited for consideration in stay proceedings to allow non bankruptcy litigation to go forward. Twelve such factors were listed by the court in In re Curtis, 40 B.R. 795 (Bkrtcy. D.Utah 1984). Factors pertinent to the instant case are:

(1)

Whether the relief will result in a partial or complete resolution of the issu es.

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I (2)

The lack of any connection with or interference with the bankruptcy case.

(4),

Whether a specialized tribunal has been established to hear the, particular cause of action and that tribunal has the expertise to hear such cases..

(7)

Whether litigation in another forum would prejudice the interests of other creditors, the creditors committee and other interested parties.

(10)The interest of judicial economy and the expeditious and economical:

determination of litigation for the parties.

(12).

The impact of the stay on the parties and the balance of hurt.

In re Cureis. 406B R. at 799-800.

Movants seek relief from the stay to permit them to proceed with their state court action for the sole purpose of liquid'sg th amount of their clali.

ThIs aspect of Movants' claim may be completely resolved in the state court, leaving collection on such claim to Movants' remedies as general unsecured creditors in Debtor's bankruptcy case. Movants specifically do not seek relief to proceed with any collection efforts on any judgment they may obtain in state court other than by way of their claim in the bankruptcy case. Thus, the state court action will not interfere with the Notice and Motion for Relief from Stay 2

In re:

Case No.:1 01-30923 DM PACIFIC GAS AND ELECTRIC Chapter 11 Case COMPANY, a Califorma corporation, NOTICE OF MOTION AND Debtor.

MOTION FOR RELIEF FROM AUTOMATIC STAY; MEMORANDUM OF POINTS AND AUTHORITIES DATE: I September 16, 2062 TIME:

1:30 p.m.

CTRM:

22 NOTICE AND MOTION NOTICE IS HEREBY GIVEN that on September 16, 2002, at 1:30 p.m., or as soon thereafter as the matter may be heard, a hearing will be held on the motion of Rodney Bughao and Karen Bughao ("Movants') for relief from the automatic stay of 11 U.S.C. § 362(a) to permit Movants to liquidate the amount of their claim in their pending state court action agaltit Pacific Gas and Electric Company ("Debtor'). The motion will be heard; in the United States Bankruptcy Court, Courtroom 22, 235 Pine Street, 22nd Floor, San Francisco, California.

Respondent Pacific Gas and Electric Company is advised to appear at the prelitminary hearing at the time and place set forth above.

Notice and Motion for Relief from Stay 1'

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For these rnrgn, Movanth reqiest an order lifting the automatic stay to permit them to proceed with and complete prosecution of the state court-action, any collection activity to be limited to Movants' rights as creditors in this bankruptcy case.,

A proposed order is attached hereto as Exhibit A'.

orderly administration of the bankruptcy case or with the assets of the bankruptcy estate.

"Where neither prejudice to the bankruptcy estate nor interference with the bankruptcy proceeding is demonstrated, the desire of a stayed party to proceed in another forum is sufficient cause to warrant lifting the automatic stay." Caner v. Larkhiam (In re Larkham), 31 B R. 273, 276 (Bankr. D Vt. 1983).

The legislative history of the stay provision under the [Bankruptcy Act of 1978]

1. indicates that actions which pose "no great prejudice to the bankruptcy estate" should be permitted "to continue in their place of origin.....

in order to leave the parties to their chosen forum and to relieve the bankruptcy court from many duties that may be handled elsewhere." S. Rep. No 989, 95th Cong. 2d Sess. at 50 (1978).

1 Ibid.

Further, the state court is the forum typically utilized for the liquidation of property damage and trespass claims such as those asserted by Movants, and there is no reason to deplete this court's time in resolving this matter. Thus, the interests of judicial economy and the expeditious and economical determination of litigation for the parties weighs in favor of relief from stay.' Nor is there any reason to suppose that lltigation in the state court would prejudice the interests of other creditors, the creditors committee or other interested parties in the bankruptcy case, especially in light of the fact that Movants will seek payment on account of their claim only through the bankruptcy process.

Finally, in considering the impact of the stay, the court must balance the hardship to Movants of maintaining the stay versus the hardship tolth6 Debtor of lifting the stay. Matter of Robertson, 244 B.R.: 880, 883 (Bankr. N.D.Ga. 2000).ý In this case, Movants have a claim against the Debtor that remained unliquidated as of the date of Debtor's bankruptcy filing; they have a right to liquidate that claim so as to be able to participate as general unsecured creditors in Debtor's reorganization. There is no reason to believe that the burden on Debtor would be any more onerous to liquidate this claim in state court than in this court. See In re Fowler, 259 B R.

856, 861 (Bankr. E.D.Tex. 2001)

NfI Notice and Motion for Relief from Stay 3

Notice and Motion for Relief from Stay LAW OFFICES OF PAULA V. TANNER By:

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Paula V. Tanner Attorney for Movants Rodney and Karen Bughao Dated: *4..'

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Paula V. Tanner, Bar No. 088790 1

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Order for Relief from Stay 1

EXHIBIT P collect, assess or recover any judgment or settlement for the payment of money that may be entered in such case against PG&E, other than pursuant to'a properly filed proof of claim in the within Chapter 11 case.

Law Offices of Paula V.-Tanner -

1 1006 4th Street. Suite 302 Sacramento, CA 95814-4503,!.

Telephone: (916) 446-8877..

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Facsimile: (916) 446-8871 Attorney for Movants Rodney and Karen Bughao '

UNITED STATES BANKRUPTCY COURT

, NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION In re:

Case No :1 01-30923 DM PACIFIC GAS AND ELECTRIC Chapter 11 Case COMPANY, a California corporation, ORDER FOR RELIEF FROM Debtor.

AUTOMATIC STAY DATE:

September 16, 2002 TIME:

1:30 p.m.

CTRM: 1122 The court having considered the motion of Rodney Bughao and Karen lBughao (*Movants")

V for relief from the automatic stay of 11 U.S.C. § 362(a) to permit Movants to liquidate the amount of their claim in their pending state court action against Pacific Gas and Electric Company

("PG&E"), and good cause appearing, IT IS HEREBY ORDERED that the automatic stay of 11,U.S.C. § 362(a) is hereby modified for the limited purpose of allowing Movants to proceed with and complete prosecution of

,It their state court action entitled Bughao v. Pacific Gas and Electrri Company, Case No.

OOAS06155, Superior Court of California, County of Sacramento, to a final judgment; provided, however, that nothing herein shall be deemed to allow Movants, or either of them, to enforce, I//

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I Order for Relief from Stay Denmis Montah United States Bankruptcy Judge if',.I

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• I, Michael L. Johnson, declare:

1. I am counsel of record for Claimants Rodney Bughao and Karen Bughao ('Movants')

in Bughao v. Pacific Gas and Electric Co;npany, Sacramento County Superior Court Case No.

00AS06155 ("the state court action'). A copy of the complaint I filed on their behalf in that action is attached to the proof of cilani I riled in this bankruptcy caseý which In turn is attached hereto and marked as pages 4-10 for ease of reference.

2. By W~ay of their complaint, Movants assert that

"'eii home was damaged on or about September 1, 1998, when PG&E's high voltage wires fell from their poles and draped across the property. A more detailed description of the damages alleged is set forth in my letter of June 28, 2000, to Harry Robinson, of PG&E, a copy of which is attached hereto and marked pages 11-13.

Declaration of Michael L. Johnson

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Mf PAGE 02/02 7092!O P.M Paula V. Tahner, Bar No. 088790 Law Offices of Paula V. Tanner 1006 4" Street, Suite 302 Sacramento, CA 95814-4503 Telephone: (916) 446-8877 Facsimile: (916) 446-8871 Attorney for Movants

- Rodney and Karen Bughao UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA "SAN FRANCISCO DIVISION

" re:

Case No.:

.01-30923 DM PACIFIC GAS AND ELECTRIC -

Chapter 11 Case COMPANY, a California corporation, DECLARATION OF MICHAEL

' ' " "Deb~torLARATII ON I"UPO RT MICAE b ebitor.

L. JOHNSON IN SUPPORT OF 4-4-4MOTION FOR RELIEF FROM AUTOMATIC STAY,.,

DATE:

September 16, 2002

'.TIME:

1:30p.m.

.1 CTRM:.22 Deelseat of Mthtel r-, jobofo 2

W dm TnFt. P.03

3. 1 tave caused to be flied In this bankruptcyase a torail proof of elaim on behalf of Movxrft for The damuges asserted by then in tdie aw court action. A copy is attached hreto sal marked pagel 4-10, undew co Yer of a letter from Robert Berg= and Assoclate, L.,

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!edfog recirt ott Celaim (page 3).

4. Ey way of the presnt moton, Moymtt eek relief ftm the fta to p it theOm to proceed with their sate court ac.tion for tdo sole mhsrpos. of liquidatinig fth nweao of their claim~

This aspect eoMovmh' olait may be completely reolved hI the stte cot, leaving collection on toch Claime to Movaln' re tmed as u nra tmf teM mrdltosi in this banbiptcy case.

5. Mo" specifically do nt seek relief to proceed with any Cwil1cdon off"-a on "y Judgmen tley may otiala In the able cotrt action other lhan by way of their claim I tla banlauptc7 caa. Thug, I do We believe the Wtt cutu action will ftruerm with die onterly adfminlstnaloss of tbB bantroptry cass of with Itoe Inds of the bad="tc etmue.

I decifte under fte penialty otpe1jury dhat the foregon hs true andS ?cne and that his dechataion is etecuWe at Roseville, California, on fth dmaft re OW.

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1-01i 3 02 RODNEY £ItJGHAO MICHAEL 1. JOHNSON 10031 FOD)THLLS BLVD SUIE 200 ROSEVILLE, CA 95747 Your Proof of Claim has been received by this office on Monday, June 25.

2001 and it has been assigned Proof of Claim number 298.

Signed, Robert Berger and Associates, LL-C Claims A~ent for Pacific Gas and Electric

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BUGIJAD v. PG&E CASE iMJUGP CGMPLtmE-Persnalminjuy, Pmropety Dermge, WfteMg Death (Ccorlleuecij

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i ~fa~ tthlf Thultra dcaredw C3 lowiS n Cornipiatne-Afrhnerra Ile MaslceW.

SHOfRT Tfrlt-t BUGTIAD v..PG&E FIRST CAUSE OF Acno01i-Premists LriaTilty ATTAOIS.ENTO fl2 Coiain~t flC-Be-CoVaimakt Ste..-

CK o fmeo rp Gener-denage Ci bseifwtsgeapeciiy o ReleokofsaV rni axrrlnft dis wil hmjfrbdajocr irts coca.

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10. PLAWIIFF-PRANlU Porjumlgnret 'r assclet or af for M6 moes is'Q,)E wQ~a*M o Mr (Superfar C-Ma ccadbv to pad Eo0rteqaed'r Punitive damages according to proof.

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WuntorrilonTons C3 PldikidsaLiab~fy O3 Pnnrniat~Wft1ty Er OmthpeqyJ-Trespeass Dateds November, L§ 200ts.

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a apwaoftcme of scdw bint Itreac, Cause of.dfam) t'rnw-i-PtshItft(hneki Rodney and Karen BtiglnG liages the acbe of caiendmnts ewer thes legat (pnzhrne) cxus ddnge'. in piddlE Dn'WA)I 9/i/gapa98

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c~sgmssutf~im tilit~ttsiofia rsfasth~$.At 420 Arches Ave, El Dorado I plsintitffs' home, was electrocuted by detendeot's high voltage wires when they fell from their poles and drapecd across the property of-plhintiffs contactingi many electrical devices and causing an electric surge throughout the home.

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[M Ceont ope-*J911genne The &dstsdar who,nefleifly owedaL nmfrhtaned, nnmgsd and opendfed teodtewetdPem1eawe(-asee Pacific One and Electric Company Praidt~l (M2Cowe Two-WIimb Fswm to mear KMvot f

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Ii. C3 The concliforwee Iete trenitV1yeeo dftedmeondefl PutfC oly Prerntu-8 LM A5.ttdtioim mbout Gther Defendants The doefridfl SVt Wemre toot" and Mipflaes 01116e cthe delerefre and erred w~in uhire scop of t. s~to"WO emtnpranw4 Em lbee 11 tot b C Ths (doferttdi Who WO W 113~ 3In fJiffsWY othcier reIssue med tire reea-t forthire flAbIitY are MCrbsrsobedbiatebimenft~rrmr.L-b Catl~okmftwn'es COMPLAINT-Pmaroet tnjury. Property Damsge,.

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sHo-rTnme. BUGHACI v. PACIFIC GAS A0D ELECTRIC COMPANY, cAsteh.ut.

BUGFfAO v. PGi-E SECOND CAUSE OF ACTIOt-.leneal Negligence liege Five....

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,.nA" PACIFtC GAS and ELECTRIC C0MPANY fit sCl*mgatov4aAches

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1.

Fai.ling to propni-y znsperi t monitor ;r maintain the high vbltagaei.nea runnrig adjacent to plaintiffs, property.

,,,2.'- Knowingly deferrin& maintenance or inspection o0 such linias due to.the anticipated replacement of such 'lines with higher voltage Lines and new poles.

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3.

A-Ilowinnghigh,voltage i-ies to d op'from their position onthe.power1,poles onto the res1denc6 of plaintiffs.

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aihod (P a dofe da, rh&VI anfag*. September 1, 1998 stnib-t 420 Arches Avenue*, El Dorado Hills," CA.

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Treapass ai 3333

1.

On oa about September 1; 1998, plaintiffs mvere in poslession of certan real property situated at 420 Arches Avenue, El Dorado Hills-El Dorado County, California..

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2.

On Septcrn~b 1 1998,nd for a period ofseven (7) years, plaintiffs "were using the Froperty dicrnbed in paragraph Ia s their home.

3.

Oht 61 about September 1, 1998, dcfcndants, 'ivithti~n.the consent Or-.

authority and against the will of the plaintlffs, ýnteied onto the property described In paragraph I ais foll6": -By al lng ori inislng hgh oltage lines to fall onto plaintiffs' Prperty.I 4.'

FrounSeptcmbier 1" 1998 until Pebruar 19,1999. defendants entered the property described in paragraph I and remaired there f6r)66st of the day to

"- effectuate repairs, iia the proet habitablecontraet for necessary repairs and "othfvtse deprive ilaintlffs of their rasideici while attempting to effectuate repairs,

5. '-

By reason of deferndants' conduct, the value of the property described in paragraph I 1br the use spedfled In paragraph 2 has been Impaired to plaintiffs' damage in excess of the jurisdictional mirdmum, the amnoufit to be proven at trial 1 6." - By reason of defendants' conduct, plaintiff has been deprived of the use n

nd 'iossessicn of the property for i period of 5 % mrntls, t.'e:, S~pteziber 1, 1998 to February 19, '-999,1tb plaintiffs' damage in art amount to be proven at tuial:

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' 7.,

Deferidants' Intenti"nal delay In maintenance and lack of inspection due to a scheduled replacement of theý subject poles and wires caused p0n1lffs' damages hereina~bove incrkntionecL

8.

That intentional delay In reckless disregard of plaintiffs'rights subjects defendant to ;n as~essmrent of punitive dariiakes, "



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BV/2712kM2 10.19 916-789-6238 MICIH PACIFIC FR CO.

PAGE 5/i11 00/27/2002 10.19 916-789-6238 MICHAEL L. JOHNSON Attorney At Lw 10031 Footlill floulevard, Suit. 200 Rosevifla, California 95747-7101 (916) 789-6221 June 28, 2000 Harry Robinsori PG. &* 1. Claims Investigator Sierra Division Safety. Ifealth & Cairrs 1050 High Strert, Third Floor Auburn, CA 95603 Dear Mr. Robinson.

I have bem retained by Rodney and IKaren Bughao to represent them in their claim against PG & E for incidental damages that they suffered as a result of the September 1, 1998 fail onto their home and property of your high voltage line. It is my intention by this letter to provide you with the details of the claim In the hopes of resolving the matter short of litigation. Obviously, the valuatlons stated herein are conveyed In the spirit of settlement negotiation and will not be admissible In any litigation per the California Evidence Code. If you are insured for this type of loss you should forward this demand to your Insurance carrier forthwith.

I understand that the basic facts of this occurrence are well known to your company. Briefly, on September 1 1998 the high voltage line that passes via easement to the south of the Bughao residence at 420 Arches in MI Dorado Hllls snapped from Its. securement and fell making contact with the Bughao pool equipment. The charge to that equipment then caused a high voltage surge throughout the Hughao home causing extensive property damage from the electrocution and resulting fires of and within the home. Liability for the occurrence Is accepted and PG & E has mitigated its exposure by payment for restoration projects in the hwme and relocation expenses incurred. The remaining exposure is for the inconvenient e, anxiety and annoyanoe the Bughao family suffered by having to move from their family home, relocate to three different residences, provide Harry Robinson P G & 1E. Clains Investigator June 28, 2000 Page 2 transportation ror their children to attend their community school, invest innumerable hours in overseeing the restoration work and mnmerous other effects ot(

their tune and psyche.

It Is reasonable to assess these damages in a structured framework. [ have determined thaf the best structure for the analysis is to look at the days and months that the Bughad's were disenfranchised and place a monietazr value on those days and months. Clearly, distinctions can be drawyn betweenthe severity of the Initial anxiety of wondering where their children would sleep in the days immediately following the damage and the inconvenience In the later months of having to meet with contractors for the purpose ;f assuring themselves the r~storation was progressing satisfactorily.

Those types of distinctions will be evident in the breakdown of what I consider to be fair compensatudn for this damage on a daily baWs."

The first week following the destruction of so much of the Bughao home should be comp ensated at the highest level The day of and those days immediately following having your home damaged to the point of being uninhabitable are very traumatic. One does not need to employ any imagination to be able to relate to having to take up residence in a hotel, not being able to have your personal effects, explaining to th,: three young children your uncertainty of shelter and clothing, etc. r value those 7 days at $5,000 per day. Frankly, whether it is calculated daily or simply at the tune of the initial insult to the home a $35,000 payment In compensation foi that anxiety and annoyance is quite reasonable.

After the first week the Bughao's continued td reside in'a hotel in Folsom for another week utirl a being relocated to a larger hotel (on September 15, 1998) further away In Xancho Cordova where they lived until October 10, 1998. Neither hotel was In the community the Bughan's lived thus depriving the children (and Rodney and Karen to a somewhat lesser extent) of being able to carry on their lives as they had done. Suddenly, to visit the neighbor children a cdmmute was Involved.

Attending school was also complicated by thai commute In that when at home the children live within a very short walk of the school It goes without describing in detail the tremendous inconvenience and annoyance a family of five suffers when cramped into a hotel as compared to a 4 bedroom/3 bathroom home I value those 32 days at $1,0W0 each for a total of $32,000.

12-U4IoN PACIFIC PR 00.

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5, 8SI27/2002 L[:19 916-789-6239.

0I UI[M PACIFIC FR CO, Harry Robinson PG. & E. Claihs Investigator rune 28, 2000 Page 3 Next, the Bugh-ao family is provided a rental home in El Dorado Hills that although better than a ho'el room Is still not adequate and is a distance away that contributes daily to the hassles the family must endure to carry on witl their daily lives. The days In that house also include new uncertainties of wondering how long It will be before life is bade to normal, will the Arches home in fact bý habitable given the damage that ha; been done and the genuine fear of moving back Into the house that could have caused any mem~brof the farpily to have been severely injured 11 not killed. The days and amdeties accompanying them in this iouse I value at $500.00 per diy. The Bughao family resided there from October 10, 1998 to February 19, 1999 for a total of 132 days. That equals $66,000.

On Februarsy 19,1999 the Buhgao's are able to return home. Even then the annoyance contimues wvith unfinlished work, work that had lýeen done incorrectly, and the travails (prfrr.xly of Kar*n Bughao) now in having to Juggle her duties as a mother with thcs e of the necessities of working nith the contractors on maternals selections, achecutlng meetings, rescheduling meetings, etc. For each of the remaining months of 0999 (and, In fact; continuing even att this time Intermittently) items would crop up that required a diversion of tame and effort maidng it more than reasonable to value thOs remaining portion of the claim at $50.00 a day for the balance of theycir (111 days) "hlch equals $15M550.

The anal*tls above le*ds io a total sum of $148,550.ý The Bughao's are prepared to accept i1-at stini'at this time in f compromise of their Claim for the Incidental damajxi arising out of the trespass of your high -voltage lines on their property. This denr'nd d6es riot include any outstanding 6bllgations, if any, for work done in restoring the property damage done or bills Incurred for expenses due to the families'disjiliuerneit' I would b! happy to discuss this matter with you at your corvenience. If there is no response by'August 3. 2000 1 will be required to procded to litigation.

Thank yoi for your time imd consideration.

Very truly? yours, MLJ:pjl PAGE I1/11

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