Sacramento Municipal Utility Dist. v. Kwan

Filed 4/30/24 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

SACRAMENTO MUNICIPAL UTILITY C097382 DISTRICT, (Super. Ct. No. 34-2013- Plaintiff and Respondent, 00143235-CU-MC-GDS)

v.

DAVID KWAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, Kenneth C. Mennemeier, Jr., Judge. Affirmed.

Law Office of Stephanie J. Finelli and Stephanie J. Finelli for Defendant and Appellant.

Quinn Covarrubias, George E. Murphy, Stephanie L. Quinn; and Randall J. Hakes for Plaintiff and Respondent.

Plaintiff Sacramento Municipal Utility District (District) opened an electrical service account for defendant David Kwan. The District later discovered power from the

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account being diverted to support a cannabis grow operation. The trial court found Kwan liable for aiding and abetting utility diversion and awarded treble damages plus attorney fees. Kwan appeals, alleging there was insufficient evidence he had knowledge of the power theft and challenging the monetary awards. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The District filed a complaint against Kwan on April 12, 2013, alleging claims for power theft, conversion, and account stated. The parties had a trial, the trial court granted a retrial, and we affirmed that judgment. (Sacramento Municipal Utility District v. Kwan (May 15, 2019, C080474) [nonpub. opn.].) The retrial was held in July 2022 and was a trial to the court. The District’s witnesses testified to an account being created for Kwan at a house in Sacramento in early November 2011. Initially, the District detected power usage at the address but there was no customer on record so the District disconnected power. Later that day, someone called in to request service at that location using Kwan’s name and provided his birth date, driver’s license number, and social security number. The caller then correctly answered three questions required by a third-party consumer credit reporting service to further verify Kwan’s identity. The District consequently opened an account under Kwan’s name for the address and resumed service. On August 27, 2012, the District’s employees suspected the address was diverting power for a cannabis grow operation. After the District contacted law enforcement officials, a District employee entered the house on October 15, 2012, and found a cannabis grow operation in every room of the house and an electrical bypass permitting power diversion, though some fans for the operation were using metered power from outlets. The District terminated electricity service to the property that day and determined its lost profit of $27,553.71 by calculating the total power used at the address, which assumed diversion began on the date the account opened, and then subtracted the amount billed for legitimate power usage.