Litigators and other legal and risk professionals share their thoughts on ELP about new legal theories or areas of litigation that plaintiff attorneys, defense counsel, corporations, risk professionals and others will want to be aware of. The host is Tom Hagy, long-time legal news enthusiast, former editor and publisher of Mealey's Litigation Reports, current Editor-in-Chief of the Journal on Emerging Issues in Litigation, and owner of HB Litigation Conferences and Critical Legal Content. ELP is a co-production of HB, CLC, Law Street Media, and vLex Fastcase. Contact Editor@LitigationConferences.com.
Wildfire Litigation: Building a Case and Establishing Liability with Ed Diab
•Tom Hagy•Season 1•Episode 100
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00:00 | 20:40
Southern California’s wildfire season has turned into a year-round crisis, and with it comes a surge in litigation. On this episode of the Emerging Litigation Podcast, we explore the aftermath of the devastating January 2025 wildfires, including the high-profile Eaton and Palisades fires, and the complex legal battles now unfolding.
My guest, Ed Diab, is a founding partner of Diab Chambers LLP, a boutique law firm with a sharp focus on wildfire litigation. Ed and his team have worked alongside national firm Baron & Budd to represent over 100 public entities in wildfire cases dating back to 2015. His deep experience in this area, combined with an insider’s perspective on utility liability, makes him uniquely qualified to discuss the challenges and strategies involved in these high-stakes cases.
As of early 2025, more than 100 cases have been filed against utilities like Southern California Edison, with public entities, individuals, and insurance carriers seeking damages for widespread destruction. In this conversation, Ed breaks down the causes of these fires, the legal strategies in play, and the uphill battle plaintiffs face when going up against major power utilities.
Ed walks us through California’s unique inverse condemnation doctrine, negligence claims, and how utility companies defend themselves—challenging liability, infrastructure management, and fire prevention efforts. We also discuss the challenges of evidence preservation, particularly when transmission towers remain critical to the state’s power grid.
From the legal wrangling over the Eaton Fire to the complexities of the Palisades rekindle, Ed shares the latest developments and what litigators should expect moving forward. His insight into the coordination between local and national firms and how they’ve successfully pursued wildfire claims makes this a must-listen episode for anyone following disaster-related litigation.
🎧 Tune in for insights on: ✅ Common causes of wildfire litigation and liability determination ✅ How plaintiffs build cases against utilities through expert investigations ✅ Strategic use of inverse condemnation and negligence claims ✅ Key defenses raised by utilities and how plaintiffs respond ✅ The current status of major wildfire cases and emerging litigation trends
Welcome to the Emerging Litigation Podcast. I'm Tom Hagy, longtime litigation enthusiast, editor, publisher and now podcaster. I'm founder of HB Litigation, which is now part of Critical Legal Content, a business I founded in 2012 to serve as a content marketing department for law firms and litigation service providers. And now here's today's episode. If you like what you hear, please give us a rating. If you want to reach me, please check out my contact information in the show notes. So, Ed Diab, thank you very much for talking with me about this again. Unfortunately, it's been wildfire season again and, if I'm not mistaken, I didn't check the news today about South Carolina whether the Carolinas are still having trouble with their wildfires, but that was within the last few days anyway. So I guess what I wanted to get from you is some background first and then get you to update us on what you've been up to this week. What are some of the common causes of wildfires that lead to litigation?
Ed Diab:
Yeah, good question, Tom. It's interesting. I heard you say wildfire season in California. Now we say there is no season anymore. It's almost year round, unfortunately.
Ed Diab:
To answer your question, though, in terms of the ones that actually lead to litigation, you're talking about ones that are generally going to be caused by a utility company. In California, there's three major ones PG&E, Pacific Gas and Electric, Southern California Edison, SCE and then San Diego Gas and Electric. There's a couple other ones that we've litigated here against Liberty Utilities and things like that, but those are the three major ones here, against liberty utilities and things like that, but those are the three major ones. And because of California's laws, there's a California constitutional section that actually allows us to sue. The Article 1, Section 19 of the California Constitution actually allows us to sue these utilities under a theory called inverse condemnation, and it's actually underpinned with like eminent domain and a taking, and it essentially this is not a don't take this as the legal explanation of it, it's more of a lay person's explanation. But, in short, the state says look, you utility company have a monopoly to provide power and in exchange for that we're going to hold you to a really high standard, which means that if your equipment is at all involved in sort of the start of a wildfire and it's really got to be, as it's deliberately designed and constructed as the magic language, then they are basically on the hook for it. Now the utility companies, to their credit, have very good lawyers who are going to defend that up down, left and right.
Ed Diab:
But from a plaintiff's perspective, that's what we look at, and then, just broadly speaking, we've got a team of experts that investigate all the fires. So to your question what are the causes of these? You've got a ton of different things. Unfortunately, I believe, arson is on the rise we saw a lot of that during the LA fires which is horrendous and despicable. I think everyone can agree with that. Sometimes you have lightning strikes. Those are obviously things that are just forces of nature Camp fires, all the things that you're taught when you're a grade school kid to avoid. But those are the many causes of the fires that we've seen.
Tom Hagy:
I can guess a little bit from talking to you before. But so how do you determine that the utility is liable for the fire, that they somehow are responsible? Certainly not lightning, but maybe in cases of lightning too, I don't know, but how do you determine that they're liable?
Ed Diab:
Yeah, look, ultimately, a true determination of liability would require a trial, right. But in terms of how can we squeeze and push the utility company to a place where their lawyers say, hey, you know what, we've got enough exposure here to start resolving cases? There's a couple ways we do it. Number one in these fires it's really important to have experts on the ground right away, and that's because, literally, the evidence is changing as the fire burns on and things like that, and so these experts are on the ground. They're usually retired firefighters or ATF or different disciplines where they've had training in terms of how to look at cause and origin indicators. They're literally putting flags on the ground, tracing where the fire propagated from. So that's one way.
Ed Diab:
Two honestly, in this sort of modern world, we've got UCSD has a great program where they've got wildfire detection cameras all over the place now. So technology is helping. Specific to the Eaton fire, which we're litigating now, in Los Angeles, there was a surveillance camera footage actually from an Arco gas station that happened to catch a flash in the hills right where the Eaton fire started. Those are the more sort of practical ways we figure these out and then, once we've got a location of where we think the fire started. We then bring in a host of other experts, electrical engineers, metallurgists, all these different disciplines that kind of help us understand what was the mechanism here. How did this fire start?
Tom Hagy:
So when you're filing claims, what typical counts are you bringing? You mentioned inverse condemnation. What other what counts are you bringing these under?
Ed Diab:
Yeah, I think you're going to see a general negligence claim as well. The reason strategically and I'm not giving away state secrets here that we bring an inverse claim is because it's got really strong teeth to it. You can ask for things like attorney's fees, costs and things associated with that interest Negligence again, that's the run-of-the-mill stuff. Hey, you had a duty to do this. You didn't meet that duty. You caused problems. And then, specifically for our public entity clients so we tend to represent the public entities. In the Eaton Fire case we're fortunate to represent the county and cities that were affected by the Eaton Fire We'll bring violations of certain California laws. There's health and safety codes for fire, suppression costs, damages, things for emergency response, property damage, environmental restoration, and then there's some other causes of action we'll throw in there, like trespass and nuisance. Those are more sort of legal technicalities, but I would say that usually covers the spectrum of things we're looking at.
Tom Hagy:
Yeah. So what would you say? Your biggest challenges are in these cases, and I want to talk about how you've been successful in the past. But when going into this, what do you say? Okay, here are the things I have to overcome.
Ed Diab:
It's a good question, tom, I think, just like any case you really. It's that first leg of the case, which is liability, right, there's a lot of things that happen, and often these fires are a combination of events that kind of come together. So you have red flag warnings, which warn of high winds that are impending, and then you've got to look at what did the utility do in light of these warnings. Now, psps, these power safety shutoffs, are becoming much more common and an accepted practice. Obviously, people hate having the power out, but we've now seen the alternative, and so, until the utility companies can start upgrading their infrastructure, undergrounding lines, things like that, it's just this reality of choosing between the lesser of two evils.
Ed Diab:
And then, at the end of the day, you've got really good lawyers who represent these power companies. They do a great job defending them in these cases, and so our task is basically trying to figure out how did this complex network of electrical infrastructure cause this fire? In some instances it's straightforward We've got literally a tree that's leaning into a power line where they caused a spark, and that gets into sort of the vegetation management responsibilities that these utility companies have. In other cases, it's a little more nuanced, and so we've got to do a ton of data collection. So we work on these extensive protective orders because, at the end of the day, you're dealing with sensitive information as it relates to our national security with respect to the grid, and so we're getting these data dumps from the power companies to thread together the story and figure out what happened here, and then we try to narrow and winnow down to pinpoint where was the point of failure.
Tom Hagy:
Okay, gotcha. And then with the typical defendant being, say, a utility, and you can tell me other varieties you might have, but typically, in these cases, utilities. What sort of defenses do they bring up?
Ed Diab:
That's a really good question. With respect to utility companies, they will typically challenge the applicability of inverse condemnation. That's a law that's gotten a lot of attention in California. Knock on wood, the plaintiff side has been pretty successful at beating down these challenges over the last 10 years or so, maybe, frankly, even more than that. And that's a push and pull of, as we like to say that again, I'm biased, I'm a plaintiff's lawyer, but again you have a monopoly to provide power. You're an investor, owned utility. That's another thing.
Ed Diab:
That kind of pulls them in a different direction. They're understandably, just like any public company have to show profits, return money to shareholders. I get that from a pure economic standpoint, but does that incentivize them to invest in keeping their infrastructure safe? That's where you start to get into these different, like I said, the push and the pull of it all. And so, in terms of the defenses number one they're flat out going to say hey, prove that it started on our equipment. Like I said, when you have a tree into a power line, it's a little tough. So maybe they start to get at did we have responsibility for managing that tree? Did we do appropriate management? And they're going to say things like we inspected the tree and making it up two years ago and it was fine and nobody could have predicted this could have happened, things like that. We obviously have our arguments to go back and forth on that front.
Ed Diab:
When it's a more complex or nuanced fire, as I might say, then you're getting into sort of the science the fire science of how these things happen, the electrical side of things, and we might have to have a technical fight over. Did this policy for reclosing, for example, this device that's used to basically turn power back on when the network detects a fault, was that set appropriately? Should it have reclosed in this situation? Should it not have? So you're getting into a lot of these policy management decisions.
Ed Diab:
And look again, I'm not giving away state secrets here. Managing an electrical grid is not an easy task, to be fair, and I try to always give both sides on this thing. I think they're trying to figure out look, they don't want to be in a damned if they do, damned if they don't situation and unfortunately, with any litigation, you're looking at it with hindsight. So do I think these utility companies are going out there intending to do this stuff? No, I think all of us can agree on that. But it's just a question of where are these sort of like boundary conditions that we believe on the plaintiff's side they need to have set and obviously on their side they think it's a different set of standards. That's the tug between the two sides.
Tom Hagy:
Can you just tell me, since we talked a couple of years ago, some of those cases are they? Have those cases wrapped up, settled, or what is the status of the ones that I talked to you about a couple of years ago?
Ed Diab:
Yeah, gosh, it's been a while. I would say for the most part, most of these cases end up in resolution, without again giving away anything confidential In terms of the dollar values that these cases resolve, for that's driven largely by again how good of a liability case can we put together? Can they show us a threat that, hey, if this went to trial we might lose? It's just like any other case you've got out there. There are some cases that are being litigated much more heavily.
Ed Diab:
For instance, there's a Marshall fire in Boulder County, Colorado, that's being litigated quite a bit and may actually go to trial sometime this fall. But for the most part, largely the California litigations have started to resolve. We were also involved in the Maui fires. There's some more it's called procedural issues there, specifically governing how insurance companies can recover in these fires. That actually went up to the Hawaii Supreme Court and is going for guidance, and so that's still being worked through. But I would say for the most part these cases, at least the ones from a few years back, are in what I would call a resolution posture.
Tom Hagy:
Okay, all right, let's bring us up to date. I've been reading about this. It sounds like wildfires are getting more frequent and more intense, and so you've been busy the last few days dealing with the fires from earlier this year. Tell us what has happened recently? Sure.
Ed Diab:
The world's eyes were turned to Los Angeles in early January when a series of fires broke out there. Obviously it got widespread coverage. You had the Palisades that were completely destroyed. You had the Eaton Fire area, which is Altadena, pasadena, parts of LA County that were, you know, again, completely decimated. I think, frankly, the shock factor is again, it's not comparing other fires but generally speaking some of the fires that we've dealt with haven't always been in these densely populated areas. You certainly had that in Hawaii, you had that in the North Bay fires, that kind of hit wine country where there's something jarring about just seeing blocks and blocks of streets that are just flat out leveled of streets that are just flat out leveled.
Ed Diab:
In terms of the litigation side of things, I would say the Eaton fire is basically just getting started. From a litigation standpoint, there have been I think we're up to close to 100 cases that have been filed on behalf of individuals, public entities, insurance subrogation, and the first hearing in the case is actually March 17th, so 11 days from now. We've had several hearings in the case, which have been interesting, with both sides trying to figure out what we can do in terms of investigating the evidence at issue. So in the Eaton Fire case you have transmission level towers, which are the high voltage steel towers that you might see. It's not the distribution level towers. These are the things that you might see. It's not the distribution level towers, these are the things that you might see on your block or your home neighborhoods. These are the transmission towers that move power miles and miles away. The issue there is the plaintiffs, and I think the defendants would reasonably agree. We've got a right to investigate and inspect the evidence. On the flip side, those transmission towers are off now and have been for some time. There was a re-energization issue that happened, but putting that aside, for the most part these things have been off and our state's grid depends on this energy. So you have Edison in court saying, hey, we've got to get the power back on Again. Any judge sympathetic to that's reasonable. On the flip side, the judge is also looking at the plaintiffs and saying, look, we've got a responsibility to preserve this evidence, figure out what's going on. So I think that both sides are working towards that. The judge in this case has been phenomenal in terms of trying to figure out how to balance these interests, and it's not an easy task for anyone.
Ed Diab:
That's the latest and greatest, I would say, with the Eaton fire On the Palisades front, a little trickier case. Again, I'm not going to share any state secrets here, but publicly it looks to have been a fire that actually rekindled. So sometimes that happens as well A fire that was originally put out starts up again. You'd be shocked at how many months sometimes can go by when fires can rekindle. So there's some litigation around there. But it's more centered on again, this is my speculation now, but I think it's centered on more of the response side to the fire. There's lots of immunities there in terms of the fire response to it. So it'll be interesting to see how that litigation plays out. But yeah, I think. And then there was actually two other fires the Hearst fire in Los Angeles and the Hughes fire in Los Angeles that we're still investigating and looking at as well. Plenty of stuff that came out of that unfortunate January that LA had.
Tom Hagy:
Are the defendants? Are they strictly utilities, because there are sometimes. You mentioned other types, but are there other types of defendants?
Ed Diab:
We've had other cases where there've been other defendants. So, for instance, the Mill Fire was a fire in California that started at a mill where sort of wood is being processed and things like that. Okay. But I would say in most of these instances you're talking about cases where you're dealing with utility companies. There have been some cases with a factory explosion, things like that, but I would say in terms of the litigation world, 90, 95 percent probably you're talking about utilities, OK so who is the judge overseeing the case or the one?
Ed Diab:
case Judge Siegel in Los Angeles County Superior Court.
Tom Hagy:
Okay.
Ed Diab:
And yeah, we've had Judge Heiberger previously on a lot of the LA fires from before who oversaw those cases. I believe he recused himself because he I don't think thankfully lost his home in the Palisades fire but was evacuated or something. So it's just getting tough because everyone knows someone that's been affected by this thing. But yeah, it looks like it'll be Judge Siegel. Yeah, yeah.
Tom Hagy:
We all do. I even know people who've lost at least two people completely. You lost everything. And I've got a daughter out there who's like telling me about the smoke and it's just anyway. It's just. Yeah, everybody seems to know somebody. Now tell me your firm. You guys specialize in this. Just say a little bit about your firm and who you're working with on this Cause.
Ed Diab:
you're not a you're not a giant shop. Yeah, we're actually a pretty small shop three partners, two paralegals. Diab Chambers is my firm, but we've had the fortune and pleasure of working alongside our co-counsel over at Baron Budd. They're a firm that we've known for a long time. In fact, the lead shareholder who works on me works on these cases with me. I've known for gosh probably 15 plus years or so John Fiske over there and Scott Summy and his practice group.
Ed Diab:
Baron Budd's a huge national firm, works on a lot of national litigation. We partnered with them long ago, bringing our respective backgrounds and expertise, Myself having done some fire cases, their team having done a ton of environmental litigation literally the cases you read about in the news and they have a lot of public entity representation experience. So that was a unique angle that we brought to the table. So the two firms have worked on quite literally every single wildfire case dating back to the 2015 fires in California. We've had a successful run. We've represented now over 100 public entities in these fire cases and, yeah, it's just a real pleasure to work. Our clients are very different. Right, we obviously have represented individual homeowners and things like that, but when you're talking about counties and cities, the clients you're dealing with on a daily basis really are the city attorneys and the county council, and so they're lawyer clients who are phenomenal, that collaborate with us. They work alongside us to develop the case, so we feel really privileged and honored to do that.
Tom Hagy:
Okay, yeah, Baron Budd is certainly. When I started writing about mass torts and asbestos in the early 80s, Fred Baron was one of the top five, easily, in that area of law. Totally yeah, so you're working with a great firm, Ed. That's all I wanted to know. I'll let you get back to what you're doing If there's anything else you wanted to say. I appreciate your time. I know you're busy.
Ed Diab:
No, thanks, Tom. I always appreciate meeting with you. Thanks for reaching back out, and if there's anything else we can talk about, I'd love to.
Tom Hagy:
Okay, will do. Thank you, Ed.
Ed Diab:
All right, Tom, have a good one.
Tom Hagy:
The Emerging Litigation Podcast is a production of Critical Legal Content which owns the awesome brand HB Litigation. Critical Legal Content is a company I founded in 2012. That was a long time ago. What we do is simple we create content that's critical on legal topics for law firms and legal service providers. I believe we even have a catchy tagline, which is your legal content marketing department. That kind of content can be blogs, papers, they can be podcasts, webinars and we have a good time doing it and S4HB litigation well, that's the name under which we publish interesting at least interesting to me legal news items, webinars, articles, guest articles, all on emerging litigation topics. That's what we do. Once again, I'm Tom Hagy, with Critical Legal Content and HB Litigation. If you like what you hear and you want to participate, give me a shout. My contact information's in the show notes. Thanks for listening. Thank you.
