Motion,Ex Parte: KARA L. ESBORG VS. COMCAST CORP. ET AL

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ROBERT B. MULLEN (SBN 136346)

AT&T SERVICES, INC. - LEGAL DEPARTMENT

430 Bush Street, 3rd Floor

San Francisco, California 94108
robert.mullen@att.com

Tel: (415) 268-9498

Fax: (415) 543-0418

Attorneys for Defendant
PACIFIC BELL TELEPHONE COMPANY
dba AT&T CALIFORNIA

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

07/18/2018
Clerk of the Court
BY: VANESSA WU
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

KARA L. ESBORG,
Plaintiff,
v.

COMCAST CORP.; COMCAST OF
CALIFORNIA III, INC.; COMCAST
CABLE COMMUNICATIONS, LLC;
WAVE DIVISION HOLDINGS, LLC;
ALEKSANDR FRID & MARINA FRID,
individually and as trustees of their
revocable trust; PAUL H. LUI & KAM T.
LUI, individually and as trustees of their
revocable trust; and DOES 1 to 100,

Defendants.

CASE NO. CGC-16-553614

DEFENDANT PACIFIC BELL
TELEPHONE COMPANY’S
MEMORANDUM OF POINTS AND
AUTHORITIES IN PARTIAL
OPPOSITION TO DEFENDANT
COMCAST OF CALIFORNIA III, INC.’S
MOTION FOR SUMMARY JUDGMENT
AND/OR SUMMARY ADJUDICATION

Date: August 1, 2018
Time: 9:30 a.m.
Dept: 302

Trial Date: August 27, 2018
Reservation No.: 05070731-05

Defendant Pacific Bell Telephone Company dba AT&T California (“Pacific Bell”)

supports in part, and opposes in part, the motion for summary judgment and/or summary

adjudication filed by defendant Comcast of California ILI, Inc. (“Comcast).

Def PBTC’s Memo of P’s and A's in Partial Oppos to Def Comcast’s Min for Summary Judgment and/or Summary Adjudication791386

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L NON-OPPOSED PORTIONS

Pacific Bell and Comcast share several arguments advanced in their motions for summary
judgment/summary adjudication, both of which are set for hearing on August 1, 2018. Pacific
Bell does not oppose Comcast’s motion on the primary shared grounds: (1) lack of any notice of a
dangerous condition before the accident or opportunity to repair that condition, and (2)
inapplicability of a products liability claim to this case.

Evidence developed since the filing of the motions has established that the subject utility
lines came down very shortly in time before plaintiffs accident, which occurred at about 10:30
am on November 23, 2015. The homeowners living near the subject utility lines have confirmed
they did not observe any downed or low-hanging utility line the morning of the incident as they
exited or walked near their homes. The resident at 640 23" Avenue walked her daughter to
school at about 8:40 a.m. the morning of the incident, and did not observe any line down or
hanging low. (Separate Statement of Additional Undisputed Facts and Supporting Evidence in
Support of Defendant Pacific Bell Telephone Company’s Partial Opposition to Defendant
Comcast of California III, Inc.’s Motion for Summary Judgment and/or Summary Adjudication
(“Pacific Bell’s Additional Undisputed Facts”), number 1.) One of the residents at 630 23
Avenue left for work at about [9:10 a.m_] and did not observe any line hanging low. (Pacific
Bell’s Additional Undisputed Facts, no. 2.) Neither of the residents at that address, the address to
which the downed Pacific Bell was attached, ever saw a line attached to their house hanging low,
at any time during the entire time period they owned the house, from 1998 to present. (Pacific
Bell’s Additional Undisputed Facts, no. 3.) Similarly, the resident at 634 23" Avenue did not
observe any line hanging lower than normal over the street, or over the sidewalk. (Pacific Bell’s
Additional Undisputed Facts, no. 4.)

Therefore, in addition to having no actual notice of any line out of its normal position,
Comeast and Pacific Bell could not have had constructive notice of any line in a hazardous
position because the subject lines were not down for an appreciable period of time before the

accident.

Def PBTC’s Memo of P’s and A’s in Partial Oppos to Def Comcast’s Min for Summary Judgment and/or Summary Adjudication791386

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IL OPPOSED PORTION

Comcast premises its motion, in part, on the assertion that it was not called out to repair
any of its cable TV drop lines serving the 600 block of 234 Avenue. Based on this assertion,
Comcast contends Plaintiff ran into a Pacific Bell line, not a Comcast line. Pacific Bell disagrees.
Plaintiff hit Comcast’s line.

At the scene of the accident, firefighters cut or removed the low-hanging utility line from
a house and gathered and hung it on a telephone pole across the street. (Pacific Bell’s Additional
Undisputed Facts, no. 5.) A photo taken the night of the accident by police shows the cable TV
line that served 640 23" Avenue hanging from the telephone pole, disconnected and bunched up.
(Pacific Bell’s Additional Undisputed Facts, no. 6.) The residents of 640 23 Avenue have
testified they subscribed to Comcast for cable TV at the time of the accident. (Pacific Bell’s
Additional Undisputed Facts, no. 7.) Further, according to their neighbor at 634 23 Avenue, the
man living at 640 23"¢ Avenue told her shortly after the accident that his TV line had been cut by
firefighters at the scene of the accident (Pacific Bell’s Additional Undisputed Facts, no. 8).

As a separate matter, Comcast’s own employees who have testified as “persons most
knowledgeable” on the topic of identification of the downed lines, when confronted with
before/after photos, do not rule out that the line hanging low across the street was Comcast’s TV
line serving 640 23" Avenue. (Pacific Bell’s Additional Undisputed Facts, no. 9.) Nor can they
explain what became of that drop line in photos of the accident scene showing the line’s
connection near the pole, where it appears to dip down — as compared to Google Streetview
photos from November 2015 (pre-accident) and later in 2016 showing a Comcast line extending
straight across the street in a normal elevated position. (Pacific Bell’s Additional Undisputed
Facts, no. 10.) Further, Comcast’s PMKs do not dispute that the cable TV drop line serving 640
23" Avenue appears different in photos of the house taken before and after the accident, most
notably that the line’s connection to the house utilizes a “messenger drop clamp” in later photos,
unlike before the accident. (Pacific Bell’s Additional Undisputed Facts, no. 11.) No matter what
Comcast says about its records, it cannot reasonably be disputed that the cable TV line serving

640 23" Avenue was repaired or replaced shortly after the accident. In fact, Comcast uses

Def PBTC’s Meme of P's and A's in Partial Oppos to Def Comcast's Min for Summary Judgment and/or Summary Adjudication1 | outside vendors to install cable TV drop lines in San Francisco (Pacific Bell’s Additional
2 | Undisputed Facts, no, 12) but has not contacted the vendors to search for records of work
3 | performed on the 600 block of 23 Avenue (Pacific Bell’s Additional Undisputed Facts, no. 13).

4 | Comcast’s motion cannot be granted on the basis it has no records of a downed line.

5

6 | Dated: July MP, 2018 AT&T SERVICES, INC.-LEGAL DEPARTMENT
tll

8 By: gud { (3 _¥ {_

9 Robert B. Mullen

Attorneys for Defendant
10 PACIFIC BELL TELEPHONE COMPANY
dba AT&T CALIFORNIA

791386

Def PBTC's Memo of P’s and A's in Partial Oppos to Def Comecast’s Mtn for Summary Judgment and/or Summary Adjudication791386

RE:

CERTIFICATE OF SERVICE

Esborg v. Comcast Corp., et al,
County of San Francisco Superior Court
Case No. CGC-16-553614

lam a resident of the State of California, over the age of cighteen years, and not a party to
the within action, My business address is AT&T Services, Inc. Legal Department, 430
Bush Street, 3rd Floor, San Francisco, California 94108. On the date specified below, I
served the following document:

DEFENDANT PACIFIC BELL TELEPHONE COMPANY’S MEMORANDUM OF
POINTS AND AUTHORITIES IN PARTIAL OPPOSITION TO DEFENDANT
COMCAST OF CALIFORNIA III, INC.’S MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION

by sending the document(s) listed above via UPS Overnight Delivery at the addresses
and on the date set forth below.

by depositing it in the United States Mail in a sealed envelope with the postage
thereon fully prepaid to those indicated on the attached Service List:

by causing personal delivery by Ultra-Ex Messenger Delivery of the document(s)
listed above to the person(s) at the address(es) set forth below.

by causing electronic mailing of the document(s) listed above to the email address(es)
set forth below.

1 am readily familiar with the firm's practice of collection and processing correspondence
for mailing. Under that practice it would be deposited with U.S. Postal Service on that
same day with postage thereon fully prepaid in the ordinary course of business.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.
i Wd hedirva—
\

Dated: <| \¢ \¢ Wanda Medina

CERTIFICATE OF SERVICE722089

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SERVICE LIST

Esborg v. Comcast Corp., AT&T Services, Inc., et al.
County of San Francisco Superior Court
Case No. CGC-16-553614

* Christopher B. Dolan, Esq.
Quinton B. Cutlip, Esq.
Megan R. Irish, Esq.
DOLAN LAW FIRM, PC
1438 Market Street
San Francisco, CA 94102

megan. irish@dolanlawfirm.com
Aitorneys for Plaintiff:
KARA L. ESBORG

Jose A. Montalvo, Esq.

LAW OFFICES OF JOHN A. BIARD
401 Lennon Lane, Suite 125

Walnut Creek, CA 94598

jamontol@travelers.com

Attorneys for Defendant (s):
WAVEDIVISION HOLDINGS, LLC

* FREEMAN MATHIS & GARY, LLP
Paul A. Bigley
Owen T. Rooney
44 Montgomery St., Suite 3580
San Francisco, CA 94104

pbigley@fmglaw.com

Aitorneys for Defendant(s): COMCAST OF
CALIFORNIA Lil, INC.

Charlene P. Rosack, Esq.
HARTSUYKER, STRATMAN, &
WILLIAM-ABREGO

505 14" Street, Ste. 400

Oakland, CA 94612-1913

Attorneys for Defendant(s): ALEKSANDR
FRID & MARINA FRID individually, and as
Trustees of their Revocable Trust

James R. Picker, Esq.

PHILIP M. ANDERSEN & ASSOCIATES
Employees of the Corporate Law
Department State Farm Mutual Automobile
Insurance Company

6210 Stoneridge Mall Road, Suite 550
Pleasanton, CA 94588

james.r.picker.gca0@statefarm.com

Altorneys for Defendant(s): PAUL H. LUI &
KAM T. LUI, individually and as Trustees of
their Revocable Trust

SERVICE LIST