Opinion
D068294
02-06-2017
REBECCA HEISLER, Plaintiff and Appellant, v. SAN DIEGO GAS AND ELECTRIC COMPANY et al., Defendants and Respondents.
Jon R. Williams, for Plaintiff and Appellant. Lewis, Brisbois, Bisgaard & Smith, LLP, Kara Malneritch, for Defendants and Respondents.
ORDER MODIFYING OPINION
NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on February 6, 2017, be modified as follows:
On page 1, the counsel listing is deleted in its entirety and replaced with the following:
William Iagmin and Jon R. Williams for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Peter L. Garchie, Ruben Tarango and James McDonald for Defendants and Respondents.
There is no change in the judgment.
/s/_________
HUFFMAN, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2012-00102754-CU-PL-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed. Jon R. Williams, for Plaintiff and Appellant. Lewis, Brisbois, Bisgaard & Smith, LLP, Kara Malneritch, for Defendants and Respondents.
Rebecca Heisler sued San Diego Gas & Electric Company (SDG&E) and Itron, Inc. (Itron; together with SDG&E, the Defendants), alleging she suffered injuries from exposure to radiofrequency radiation emitted by a group of "smart meters" manufactured by Itron that SDG&E installed in a utility shed outside of Heisler's condominium. The trial court granted summary judgment in favor of the Defendants on the grounds that Heisler's claims were preempted by federal law, barred by California Public Utilities Code section 1759, and time barred. The trial court also found the expert's declarations, submitted in support of Heisler's opposition to the summary judgment motion, did not demonstrate proper qualifications, lacked foundation, and contained speculative opinions.
Heisler appeals, contending the trial court erred in granting summary judgment because: (1) under the continuing violation and stabilization doctrines, her action is not barred by the statute of limitations; (2) SDG&E's collocated installation of smart meters near her condominium violated the Federal Communication Commission's (FCC) standard for permissible human exposure to radiofrequency radiation, a standard to which the California Public Utilities Commission (CPUC) defers; and (3) her expert demonstrated sufficient qualifications and his opinions were neither speculative nor lacking in foundation. We conclude Heisler's action is barred by the statute of limitations and her expert's declarations were insufficient to defeat summary judgment. Accordingly, we need not address Heisler's remaining arguments.
FACTUAL AND PROCEDURAL BACKGROUND
California adopted a "smart grid" modernization plan and authorized the CPUC to implement it. (Pub. Util. Code, §§ 8360, 8362.) Part of that plan included installation of smart meter technologies. (Pub. Util. Code, §§ 8360, 8366.) Smart meters are digital electric meters that use wireless two-way communication technology to transmit energy data from customers to the utility provider. The communication technology operates on common radiofrequency at low power levels.
Itron supplied SDG&E with smart meters. In 2008, SDG&E installed smart meters in a utility shed behind Heisler's residence. In July 2010, SDG&E replaced the smart meters it had installed in 2008 with newer models. SDG&E placed a group of 16 smart meters serving eight condominium units within the same utility shed.
At the time SDG&E installed the new smart meters behind Heisler's residence, she was attending a conference in Los Angeles. Upon her return home around July 22, 2010, she found a notice from SDG&E indicating that new utility meters had been installed behind her home. Several days after SDG&E completed installation of the smart meters, Heisler began experiencing physical symptoms, including shooting pain in her head, pressure in her chest, and skin rashes. Heisler immediately began researching the cause of her symptoms and the potential connection to smart meters.
On August 4, 2010, Heisler called SDG&E requesting removal of the smart meters behind her home because of the impact they were having on her health. Heisler believed the smart meters were causing her injuries and that SDG&E was responsible for their installation. On August 5, 2010, SDG&E informed Heisler that the CPUC had authorized installation of the smart meters and SDG&E could not remove them. SDG&E also informed Heisler that Itron had manufactured the smart meters.
On August 13, 2010, Heisler had an appointment with Dr. Theresa Cyr, a doctor of osteopathic medicine. Prior to that appointment, Heisler had informed Dr. Cyr of the problems she was experiencing from the smart meters. At the August 13 appointment, Heisler explained to Dr. Cyr that she was experiencing symptoms from the smart meters, including pain in her head, ears, wrist and thumbs, memory problems, and irregular heartbeat.
On August 17, 2010, Heisler emailed the EMF Safety Network, informing it that she had called SDG&E to complain about the health problems she was experiencing from smart meters, but SDG&E refused to remove the meters. The EMF Safety Network is a group of citizens " 'who address health, environmental and safety impacts associated with electromagnetic fields (EMF) and radiofrequency (RF) emissions technologies.' " The EMF Safety Network had previously petitioned the CPUC for an investigation into the health effects of emissions from smart meters.
On August 24, 2010, SDG&E representatives visited Heisler's residence. Heisler reiterated her health concerns associated with smart meters. One of the representatives asked Heisler for more information about Heisler's smart meter concerns. The next day, Heisler sent SDG&E an article about the "smart meter debacle." According to Heisler, on August 26, 2010, SDG&E refused to put its denial of her request to remove the smart meters in writing. On September 1, 2010, Heisler moved out of her home. On September 3, 2010, SDG&E sent Heisler a letter following up on its August 24, 2010, visit and again declined Heisler's request to remove the smart meters.
On August 21, 2012, Heisler sued the Defendants. In the operative first amended complaint, Heisler asserted claims for products liability based on design and manufacturing defects against Itron and negligence against both SDG&E and Itron. Heisler alleged her health was adversely impacted by the installation of the smart meters in her condominium complex. Specifically, she claimed that "[u]pon installation of these 'wireless' smart meters, she began to suffer injuries that included, but were not limited to injuries to both her circulatory systems, nervous systems. [Heisler's] physical symptoms include, but are not limited to, premature atrial complexes, heart arrhythmia, migraines, constant headaches, insomnia, chest pain, chest pressure, uncontrollable shakes. Said injuries were caused by the 'wireless' smart meters."
The Defendants moved for summary judgment, arguing Heisler's action was barred by section 1759 of the Public Utilities Code because it hindered, frustrated, interfered with, or obstructed a general supervisory or regulatory policy of the CPUC, preempted by federal law, and time-barred because her claim accrued more than two years before she filed her complaint. Heisler opposed the Defendants' summary judgment motion, contending the statute of limitations did not start running until after SDG&E inspected her property and sent her a letter in September 2010, denying her request to remove the smart meters.
Heisler also argued her action was not barred by the Public Utilities Code because she was not challenging the adequacy of FCC standards for radiofrequency emissions. Rather, she was alleging that SDG&E's clustered installation of smart meters near her residence violated those standards. To support her position, Heisler submitted a declaration from Jeffrey Mark Taylor, a general building contractor who had "designed and built over 200 mesh networks over the last 20 years for businesses and homes, including condominiums, townhouses and apartments." Taylor had also performed field measurements and installations for an electrical engineer who "specialize[d] in active harmonic EMF filtration, and clean inverters for large grid tied power systems," conducted research "creating algorithms [and] calibrating the JPL Microwave Scanner (50-60GHz) aboard the Tiros series and later satellites using the similar instruments contributing to the satellite global temperature data set used in modeling the trajectory of the Earth's climate," worked as a network and video security systems administrator for various hotels, worked on studies leading to the development of liquid crystal displays, and performed chemistry and medical endocrine system research.
In his declaration, Taylor stated that he "performed preliminary radiofrequency radiation measurements" of the smart meters at Heisler's residence. According to Taylor, the "standards for maximum permissible exposure" were exceeded during "the requisite 30 minute exposure period for an general population/uncontrolled environment." However, in his one-page report, Taylor noted that "it [is] next to impossible to separate the radiofrequency radiation from surrounding sources including but not limited to radio, TV and cell towers, cell & DECT phones, baby monitors, tablets, WiFi routers, computers, WiFi printers, satellite TV, internet, GPS and public and military communication (& weapon) systems."
Based on his experience and training in the electronic mesh networking industry and radiofrequency measuring, Taylor went on to opine that the Defendants were negligent in their design, manufacture and installation of the smart meters near Heisler's residence because they "were installed in an already dense [radiofrequency] area and/or created a new multiple transceiver/antennae deployment environment." Taylor stated that the Defendants failed to consider the "additive power summing effect" of the installation. Further, according to Taylor, the Defendants did not exercise enough care "in properly isolating and shielding any of [the] multiple transceivers' antennae from the townhomes electric power supplies or gas & water piping," resulting in Heisler being exposed to radiofrequency radiation levels tantamount to touching the meter's cover when she handled electrical appliance cords or adjusted the thermostat on her water heater.
The Defendants objected to Taylor's expert declaration on the grounds that his opinions were speculative, amounted to conjecture, and lacked foundation. Further, the Defendants objected on the basis that Taylor failed to establish his qualifications to testify as an expert in this matter. Specifically, the Defendants noted that Taylor did not indicate that he had any knowledge, training, or experience in the design, manufacture, installation, or testing of smart meters or that any of his knowledge, training, or experience applied to his work in this matter. Further, the Defendants challenged Taylor's opinions because Taylor stated they were "preliminary and subject to additions and/or modifications," and he did not demonstrate he used a testing methodology reasonably relied upon by an expert in the relevant field.
At the hearing on the Defendants' summary judgment motion, Heisler submitted a supplemental declaration from Taylor. In the supplemental declaration, Taylor explained that the report he referenced in his original declaration was the introductory page of a 1,226-page ongoing body of work concerning Heisler's exposure to radiofrequency radiation. According to Taylor, the introductory page "illuminate[d] the strategy including the rationale that [he was] using to first determine the extra amount of new radiofrequency radiation that this particular smart meter installation created; and secondly how much of this radiation was actually absorbed into [Heisler's] body." Taylor stated his procedure was derived from an FCC Office of Engineering and Technology bulletin, entitled "Evaluating Compliance with FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields."
The trial court sustained the Defendants' objections to Taylor's declarations and granted the Defendants summary judgment. In doing so, the court found that Taylor had not demonstrated proper qualifications and his opinions were speculative and lacked foundation. However, the court stated that even if it considered Taylor's declarations, it would still grant summary judgment. The court noted that nothing in Taylor's supplemental declaration changed the outcome. Further, the trial court found three alternative bases for granting summary judgment, namely the action was barred by section 1759 of the Public Utilities Code, preempted by federal law, and time barred.
DISCUSSION
I. Summary Judgment Principles
Code of Civil Procedure section 437c, subdivision (c), provides that summary judgment is to be granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. A defendant "moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant may meet this burden either by showing that one or more elements of a cause of action cannot be established or by showing that there is a complete defense. (Ibid.)
If the defendant's prima facie case is met, the burden shifts to the plaintiff to show the existence of a triable issue of material fact with respect to that cause of action or defense. (Aguilar, supra, 25 Cal.4th at p. 849; Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) Ultimately, the moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar, at p. 850.)
We review a summary judgment ruling de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121.) "In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment." (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1079.) "[W]e are not bound by the trial court's stated reasons for its ruling on the motion; we review only the trial court's ruling and not its rationale." (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1402.)
II. Statute of Limitations
Heisler argues her action is not barred by the statute of limitations because the statute was tolled under the continuing violation and stabilization doctrines. We reject these arguments. A. Statute of Limitations Provided in Code of Civil Procedure, Section 340.8
The parties do not dispute that the statute of limitations provision that applies to this case is set forth in Code of Civil Procedure section 340.8, subdivision (a). That section states, "[i]n any civil action for injury or illness based upon exposure to a hazardous material or toxic substance, the time for commencement of the action shall be no later than either two years from the date of injury, or two years after the plaintiff becomes aware of, or reasonably should have become aware of, (1) an injury, (2) the physical cause of the injury, and (3) sufficient facts to put a reasonable person on inquiry notice that the injury was caused or contributed to by the wrongful act of another, whichever occurs later." (Ibid.)
By focusing on when the plaintiff "becomes aware of, or reasonably should have become aware of" the injury and cause, Code of Civil Procedure section 340.8 incorporates the discovery rule, which, as our Supreme Court has explained, "postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) Under this rule, "the plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof—when, simply put, he at least 'suspects . . . that someone has done something wrong' to him." (Ibid., citations omitted.) "[W]hile resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper." (Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1430.)
Here, the undisputed facts establish that Heisler's claim accrued as of August 5, 2010. At that point, Heisler was aware of her injury, the physical cause of that injury, and had sufficient facts to put her on notice that the Defendants' acts caused or contributed to the injury. (Code Civ. Proc., § 340.8, subd. (a).) Specifically, by August 5, 2010, Heisler had experienced severe symptoms, conducted extensive research regarding health impacts from smart meters, believed the smart meters were causing her symptoms, called SDG&E to remove the smart meters, was informed that Itron manufactured the meters, and SDG&E had refused her removal request. At the latest, Heisler's claims accrued by August 17, 2010. By that time, she had informed her doctor of the health problems she was experiencing from the smart meter installation, had seen her doctor regarding her symptoms, and had contacted the EMF Safety Network, informing it that she had health problems from the smart meters and that SDG&E had refused her request to remove the meters. Thus, Heisler's action, filed on August 21, 2010, was outside the two-year limitations period set forth in Code of Civil Procedure section 340.8, subdivision (a). B. Continuing Violation Doctrine
Heisler relies on the continuing violation doctrine to save her lawsuit. She argues that under that doctrine, the Defendants' wrongful acts were continuing in nature and the statute of limitations began running, at the earliest, on August 26, 2010, the date that SDG&E refused to remove the smart meters after it had visited Heisler's home. We reject Heisler's argument.
"To align the actual application of the limitations defense more closely with the policy goals animating it, the courts and the Legislature have over time developed a handful of equitable exceptions to and modifications of the usual rules governing limitations periods." (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192 (Aryeh).) Those exceptions include continuing wrong accrual principles, which fall under two main branches, the continuing violation doctrine and the theory of continuous accrual. (Id. at p. 1197.) "The continuing violation doctrine aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them." (Id. at p. 1192.) The doctrine recognizes that "[s]ome injuries are the product of a series of small harms, any one of which may not be actionable on its own. [Citation.] Those injured in such a fashion should not be handicapped by the inability to identify with certainty when harm has occurred or has risen to a level sufficient to warrant action." (Id. at pp. 1197-1198.)
Heisler relies on the continuing violation doctrine; she does not present an argument under the theory of continuous accrual. "Generally speaking, continuous accrual applies whenever there is a continuing or recurring obligation: 'When an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period.' [Citation.] Because each new breach of such an obligation provides all the elements of a claim—wrongdoing, harm, and causation [citation]—each may be treated as an independently actionable wrong with its own time limit for recovery. [¶] However, unlike the continuing violation doctrine, which renders an entire course of conduct actionable, the theory of continuous accrual supports recovery only for damages arising from those breaches falling within the limitations period." (Aryeh, supra, 55 Cal.4th at p. 1199.)
The continuing violation doctrine is not applicable in this case because it is not "a case in which a wrongful course of conduct became apparent only through the accumulation of a series of harms." (Aryeh, supra, 55 Cal.4th at p. 1198.) Rather, Heisler does not dispute that almost immediately after her exposure to the newly installed smart meters at her condominium complex, she suffered significant health problems and believed the Defendants were responsible for her symptoms. Moreover, this is not a situation where Heisler was handicapped by an inability to identify when the harm occurred and had risen to a level warranting action. Based on the undisputed facts, Heisler experienced severe physical symptoms, including shooting pain in her head, pressure in her chest and skin rashes, within days of being near the smart meters. She immediately researched the problem, believed it was the result of the smart meter installation, contacted SDG&E about removing the smart meters, and had her request denied.
Heisler relies on various cases to support her continuing violation doctrine argument. Those cases are easily distinguishable and inapplicable. For example, in Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324 (Komarova), the court applied the continuing violation doctrine in a case alleging violations of the Robbins-Rosenthal Fair Debt Collection Practices Act (FDCPA). The court reasoned that the doctrine could apply in the FDCPA context because the key for many improper debt collection claims is whether the defendant engaged in a pattern of debtor harassment. (Id. at pp. 343-344.) " 'Repeated harassing phone calls,' " like hostile work environments, involve claims that by " ' "[t]heir very nature involve[] repeated conduct" ' rather than ' "discrete acts." ' " (Id. at p. 344.) Unlike the plaintiff in Komarova, Heisler's claims are not based on whether the Defendants engaged in a continuing pattern of conduct that caused her harm. The continuing conduct Heisler alleges is the ongoing emission of radiofrequency radiation from smart meters. This type of conduct is not akin to a hostile work environment or a pattern of harassing phone calls discussed in Komarova because Heisler's claims by their nature do not involve or require repeated conduct.
Similarly, Heisler's reliance on Eaton Hydraulics Inc. v. Continental Casualty Co. (2005) 132 Cal.App.4th 966 (Eaton) is misplaced. In that case, the trial court noted the settled rule that an insurer's "duty to defend is continuing, and that the limitations period is equitably tolled from the time the cause of action accrues—upon [the insurer's] refusal to defend—until the underlying lawsuit is terminated by a final judgment." (Id. at p. 973.) Eaton is inapplicable because bad faith claims do not involve a series of small harms, which are not actionable on their own. Rather, under settled California authority, a plaintiff has the option to sue upon the insurer's refusal to defend or wait until the underlying litigation is terminated. (Ibid.) In contrast, the continuing violation doctrine is "derived from the doctrine of equitable tolling" and is aimed at preventing injustice when the plaintiff cannot identify when harm has occurred. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 813 (Richards).) Heisler was not in a situation where she had an option as to when to file her lawsuit. Rather, she had a duty to sue within two years of when she suffered an injury, knew the cause of the injury, and had sufficient facts to put a reasonable person on inquiry notice that the Defendants contributed to the injury. (Code Civ. Proc., § 340.8.) "[T]he fact that a series of . . . unlawful acts is indeed a series, a continuum, rather than a concatenation of unrelated acts, will delay the deadline for suing with respect to the earliest acts in the series only if their character was not apparent when they were committed but became so when viewed in the light of the later acts." (Richards, supra, at p. 814.) Because Heisler knew that she suffered injuries resulting from the Defendants' smart meters, she could not sit back and wait to assert her claims.
Lastly, relying on Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862 (Baker), Heisler contends the radiation from the smart meters installed near her condominium is analogous to a continuing nuisance. In Baker, homeowners who lived adjacent to an airport filed suit for "nuisance caused by noise, smoke, and vibrations from flights over their homes." (Id. at p. 866.) The trial court dismissed the nuisance cause of action on the basis that the nuisance was permanent and the statute of limitations had run. (Id. at p. 868.) The court of appeal reversed, finding that the nuisance was "continuing in character and persons harmed by it may bring successive actions for damages until the nuisance is abated." (Id. at p. 869.)
Heisler urges us to find that the installation of smart meters near her condominium was akin to the continuing nuisance of airport operations discussed in Baker, supra, 39 Cal.3d at p. 873, rather than a permanent nuisance, such as underground telephone utility lines (Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1486). She contends that because radiofrequency radiation is similar to a continuing nuisance, "the statute of limitation did not begin to run until [SDG&E] refuses to abate it, or until [she] was separated from that nuisance." We need not engage in this analysis because Heisler did not assert a nuisance cause of action, where continuing harm principles may apply. Rather, Heisler alleged claims for products liability and negligence. Had Heisler sought to apply principles applicable to continuing nuisances, she should have pleaded that cause of action or sought leave to amend her complaint to do so. For purposes of summary judgment, the trial court was limited to the theories set forth in the pleadings. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.) C. Stabilization Doctrine
Heisler argues the "stabilization doctrine" supports equitable tolling of the statute of limitations because even after SDG&E denied her initial request to remove the smart meters, the parties continued to engage in "meaningful communication" about the meters and SDG&E did not announce its final decision refusing removal until August 26, 2010. We reject this argument.
In United States v. Dickinson (1947) 331 U.S. 745, 749 (Dickinson), the Supreme Court held that where damage to private property results from a "continuing process of physical events," a cause of action does not accrue "until the situation becomes stabilized." In that case, the government had constructed a dam that slowly raised the water level in a river that began flooding the property. (Id. at pp. 746-747.) In light of the continuous physical invasion and uncertainty of damages, the Court found the property owner was not required to resort to piecemeal or premature litigation. (Id. at p. 749.)
California courts have applied Dickinson's stabilization doctrine to public intrusions onto private land. For example, in Pierpoint Inn, Inc. v. State of California (1969) 70 Cal.2d 282, a property owner sued the government for inverse condemnation arising from construction of a freeway on a portion of his land. (Id. at p. 285.) The court held that the government could not argue the property owner's claim was untimely because the owner "reasonably awaited completion of the [freeway] project in order to determine more accurately the exact extent to which its remaining property would be damaged." (Id. at p. 293; see also Stonewall Ins. Co. v. City of Palos Verdes Estates (1996) 46 Cal.App.4th 1810, 1842-1843 [where a city storm drain caused erosion to private property, the limitations period did not run until the situation had stabilized].)
First, as the Defendants point out, Heisler did not raise her stabilization doctrine argument in the trial court. In general, we will not entertain arguments on appeal that were not raised before the trial court. (Peart v. Ferro (2004) 119 Cal.App.4th 60, 70; Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 651.) Heisler claims she did not forfeit the argument because she argued in opposition to the summary judgment motion that the Defendants' unlawful actions did not acquire a "state of permanence" until SDG&E sent its final letter in September 2010, refusing to remove the smart meters. Based on our review of Heisler's opposition to the summary judgment motion, her arguments concerning the "permanence" of the Defendants' conduct, were in the context of whether the continuing violation doctrine applied to her claims. She never specifically asserted the "stabilization doctrine." " '[U]nless they were factually presented, fully developed and argued to the trial court, potential theories which could theoretically create "triable issues of material fact" may not be raised or considered on appeal.' " (Peart, supra, at p. 70.)
In any event, we reject Heisler's argument on the merits. The stabilization doctrine does not apply in this case. That doctrine is applicable where damage or intrusion onto private property is continuous and does not stabilize for a period of time, thus leading to uncertainty in damages. In the case before us, Heisler is not alleging that the radiofrequency radiation from the smart meters did not stabilize for a certain period. Further, she does not claim that SDG&E's continued communications with her led to uncertainty in her damages. Instead, she contends SDG&E's decision to refuse removing the smart meters did not stabilize until August 26, 2010, when SDG&E visited her property and refused her removal request. However, by August 5, 2010, Heisler's claim had accrued because she had suffered injuries, knew the cause of the injuries, and had sufficient facts to determine that the Defendants had contributed to her injuries. Additionally, at that point, SDG&E had already refused Heisler's request to remove the meters. Even if the stabilization doctrine applied in this case, the fact that SDG&E had visited her property on August 24, 2010, and subsequently reiterated its refusal to remove the meters does not mean the situation was not stabilized by August 5, 2010.
Contrary to Heisler's argument, Richards, supra, 26 Cal.4th 798, does not support her position. In that disability discrimination case, the court held "when an employer engages in a continuing course of unlawful conduct . . . by refusing reasonable accommodation of a disabled employee or engaging in disability harassment, and this course of conduct does not constitute a constructive discharge, the statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer's cessation of such conduct or by the employee's resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain." (Id. at p. 823.) The court continued that the statute of limitations would commence running when the employer "ma[de] clear to the employee in a definitive manner that it will not be granting [a disability accommodation or any relief from disability harassment]." (Id. at pp. 823-824.)
Heisler's reliance on Richards is misplaced because the court was not applying the stabilization doctrine. Rather, the court considered whether the statute of limitations had run under the continuing violation doctrine. (Richard, supra, 26 Cal.4th at pp. 818-824.) Regardless, the case does not save Heisler's claim because it is undisputed that on August 5, 2010, SDG&E informed Heisler that the CPUC had authorized installation of the smart meters and SDG&E would not remove them. Thus, SDG&E definitively informed Heisler that it was refusing her removal request. The statute of limitations started to run at that point, making her lawsuit, filed on August 21, 2012, untimely.
Based on the foregoing, we conclude the trial court properly granted summary judgment in the Defendants' favor on statute of limitations grounds.
III. Expert Declarations
Heisler contends the trial court erroneously sustained the Defendants' objections to Taylor's declarations. We disagree. A. Principles of Review
"The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. [Citation.] This does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue." (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 (Bozzi).)
"Prior to Reid v. Google, Inc. (2010) 50 Cal.4th 512, in which the Supreme Court expressly left open the question of whether a de novo standard or an abuse of discretion standard applies to evidentiary rulings in connection with summary judgment motions (id. at p. 535), case law provided that the trial court's evidentiary rulings made on summary judgment are reviewed for abuse of discretion." (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1114 (Howard Entertainment).) "[I]t may be arguable that evidentiary rulings at a summary judgment proceeding, such as lack of foundation, should be reviewed de novo." (Ibid.) We need not reach that issue because, under any applicable standard of review, we conclude the trial court did not err in sustaining the Defendants' objections to Taylor's declarations. B. Expert Qualifications
The Defendants objected to Taylor's initial declaration on the grounds that his opinions were speculative, amounted to conjecture, and lacked foundation. Heisler attempted to cure the alleged deficiencies by submitting a supplemental declaration from Taylor at the summary judgment motion hearing. At the hearing, the Defendants argued Taylor's supplemental declaration had the same deficiencies as his initial declaration. The trial court sustained the Defendants' objections to Heisler's declarations. For purposes of appeal, we review and consider Heisler's initial and supplemental declarations.
As a general matter, the qualification of experts may be assessed on summary judgment. (See Littlefield v. County of Humboldt (2013) 218 Cal.App.4th 243, 256-257 [affirming summary judgment where opposing party failed to offer qualified expert testimony on an essential issue].) "The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant's personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion." (Bozzi, supra, 186 Cal.App.4th at p. 761.) Such declarations are therefore subject to foundational challenges. "For example, the lack of foundation of an expert's testimony can be as to the expert being qualified, the validity of the principles or techniques upon which the expert relied, or as to the reliability and relevance of the facts upon with the expert relied." (Howard Entertainment, supra, 208 Cal.App.4th at p. 1114.)
" '[T]he qualifications of an expert must be related to the particular subject upon which he is giving expert testimony.' [Citations.] Consequently, 'the field of expertise must be carefully distinguished and limited' [citation], and '[q]ualifications on related subject matter are insufficient.' " (Howard Entertainment, supra, 208 Cal.App.4th at p. 1115; see also Hayman v. Block (1986) 176 Cal.App.3d 629, 642-644 [trial court must consider competency of evidence presented on summary judgment].)
Taylor's declarations do not establish the education or experience that qualifies him to be an expert in smart meters and their radiofrequency radiation emissions. Taylor is a general contractor who has experience building "mesh networks." He did not specify whether those networks included smart meters or whether he had any experience with design or testing of smart meters. Taylor stated that he worked for an electrical engineer specializing in "active harmonic EMF filtration, and clean inverters for large grid tied power systems, where [he did] field measurements & installations including all his computer networking, software, and hardware jobs." Again, Taylor did not specify how this experience qualified him as an expert on the subject matter at issue in this case. (Howard Entertainment, supra, 208 Cal.App.4th at p. 1115 ["The foundation required to establish the expert's qualifications is a showing that the expert has the requisite knowledge of, or was familiar with, or was involved in, a sufficient number of transactions involving the subject matter of the opinion."].) Even if we construed Taylor's experience as related to the subject matter of this case, related qualifications are insufficient. (Ibid.)
Similarly, Taylor's educational background does not appear to be in a field relevant to the issues in this case. He has background in "physical chemistry related to heat and electronics in organic chemical systems" and earned an honorary doctorate in biochemistry based on medical endocrine system research. Taylor's education and experience in biochemistry does not qualify him to be an expert on relevant issues, including the design and installation of smart meters and their radiofrequency radiation emissions.
Based on the foregoing, we conclude Taylor did not establish a sufficient foundation for his qualifications to opine on the matters set forth in his declaration, including smart meter installations and design and radiofrequency radiation measurements. C. Value of Opinion Evidence
An expert's declaration is insufficient to create a material dispute where the expert does not state any facts to support his opinion. (Bozzi, supra, 186 Cal.App.4th at pp. 762-763.) "An opinion is only as good as the facts and reasons on which it is based." (Id. at p. 763.) Further, " '[a]n expert's speculations do not rise to the status of contradictory evidence, and a court is not bound by expert opinion that is speculative or conjectural. . . . [Parties] cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation, or reasoning.' " (Id. at pp. 763-764.)
Here, the Defendants objected to Taylor's declaration because he did not specify whether his testing complied or was in conformance with any known government, scientific or commercial standards for testing radiofrequency radiation. In his supplemental declaration, Taylor attempted to cure the deficiencies by explaining that he used equipment and procedures recommended in an FCC bulletin regarding measuring human exposure to radiofrequency electromagnetic fields. While Taylor's declarations are not a model of clarity and are somewhat inscrutable, in light of the rule of liberal construction, we conclude Taylor's declarations met the bare minimum standard in regard to whether the tests he employed are generally acceptable and reliable in the relevant scientific community. (See Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 188-189.)
However, the Defendants' objections to Taylor's opinions on the grounds that the opinions were speculation and conclusory are well taken. For example, Taylor opined that the radiofrequency radiation from the smart meters was transmitted through gas and water piping leading to Heisler's residence. However, Taylor did not set forth any testing he had performed or any basis for his conclusion that the radiofrequency radiation traveled through gas and water piping. Similarly, Taylor opined that the smart meters installed near Heisler's residence were particularly harmful because they were in a "corridor network" characterized by extreme power spikes, rather than being a " 'self-healing network' with even [radiofrequency] signal densities which are less humanly [and] physiologically harmful - because the body can get used to ambient stable [radiofrequency] level easier." Again, Taylor offered no facts, basis, or explanation to support his conclusion that radiofrequency "pulsations" near Heisler's residence were more physiologically harmful than even radiofrequency signal densities. He further offers no foundation as to the experience that qualifies him to offer that opinion. Taylor's conclusory opinion without a factual basis does not create a triable issue.
Based on the foregoing, we conclude the trial court properly sustained the Defendants' objections to Taylor's declarations.
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
/s/_________
HUFFMAN, J. WE CONCUR: /s/_________
BENKE, Acting P. J. /s/_________
IRION, J.