Gag order:
Judge in the Tubbs Fire trial issues an order preventing PG&E and its opponents from discussing the merits of their case outside court.
The judge in the upcoming trial to determine whether Pacific Gas and Electric Co. was responsible for the lethal Tubbs Fire said Wednesday that she would issue a narrow version of the gag order requested by PG&E to prevent both sides from discussing the merits of their case in public.
“You can’t go and argue your case outside this courtroom,” San Francisco Superior Court Judge Teri Jackson said during a onehour hearing. She said PG&E and lawyers for the fire victims were free to talk about related issues — power blackouts, other fires, the laws governing a utility’s responsibility for wildfires — but would be barred from publicly assessing blame for the Tubbs Fire.
The October 2017 fire killed 24 people and destroyed more than 5,600 structures in Sonoma and Napa counties. State investigators concluded in January that it had started in the electrical system of a private property owner not controlled by PG&E. But lawyers for fire victims said they have contradictory evidence implicating the utility, and the judge overseeing PG&E’s bankruptcy agreed to let them take their case to a jury in state court.
Jackson has scheduled an eightweek trial, with jury selection starting Jan. 7. At Wednesday’s hearing, PG&E lawyer Brad Brian accused fire victims’ lawyers of trying to sway prospective jurors with comments to the news media.
“Plaintiffs’ attorneys have fueled the firestorm of publicity about this case,” attacking the state’s investigation and showing videos that allegedly connect the utility to the fire, Brian told Jackson. He said the lawyers have acknowledged that “they made these statements to educate the public” and to encourage victims to file claims.
Frank Pitre, a lawyer for the fire victims, said the attorneys were entitled to speak out “to protect clients from recent undue publicity” about the Cal Fire report. He said newspaper headlines proclaiming that the agency had “cleared” PG&E were misleading and could prejudice the jury pool if not contradicted.
Pitre also cited Phil Matier’s column in Wednesday’s Chronicle about the likelihood that PG&E could pass increased costs along to the taxpayers under inverse condemnation, a rule that holds the utility responsible for fires started by its equipment regardless of fault, and one that it wants lawmakers to repeal. Jurors who read such reports may wonder if their utility bills will increase if they vote to hold PG&E liable for the Tubbs Fire, Pitre said.
Jackson said both sides could publicly argue about inverse condemnation, PG&E’s structure and regulation, and its responsibility for other fires. She said they could also make general statements about the case — such as “we believe there is liability” — but not about the evidence they think will prove their case.
Jackson also noted that California ethical standards for lawyers prohibit them from making outofcourt statements that would have a “substantial likelihood of materially prejudicing” a case.
“You can talk about the Kincade Fire,” the judge said, “but not about who started the Tubbs Fire.” The 76,825acre Kincade Fire in Sonoma County started near a PG&E transmission tower that malfunctioned shortly before the fire broke out.
She told the opposing sides to try to agree on a draft order and present it to her at a hearing Nov. 8.