Preview
Christopher B. Dolan, Esq. (SBN 165358)
Quinton B. Cutlip, Esq. (SBN 168030)
Megan R. Irish, Esq. (271687)
DOLAN LAW FIRM, PC
1438 Market Street
San Francisco, California 94102
Tel: (415) 421-2800
Fax: (415) 421-2830
Attorneys for Plaintiff
KARA L. ESBORG
ELECTRONICALLY
FILED
Superior Court of Catifornia,
County of Sar Francisco
07/18/2018
Clerk of the Court
BY:ANNA TORRES
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction)
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.
LUL, individually and as trustees of their
revocable trust; and DOES 1 to 100.
Defendants.
AND RELATED CROSS-ACTIONS.
SBE SS SS SH YH HS SH SH SH SH SH SH SHH HL
Case No. CGC-16-553614
PLAINTIFF’S SEPARATE
STATEMENT IN SUPPORT OF HER
OPPOSITION TO DEFENDANT
PACIFIC BELL TELEPHONE
COMPANY’S MOTION FOR
SUMMARY JUDGMENT OR IN THE
ALTERNATIVE SUMMARY
ADJUDICATION.
Reservation No. 05090801-01
Date: August 1, 2018
Time: 9:30 a.m.
Dept.: 302
Action Filed: August 11, 2016
Trial Date: August 27, 2018
Plaintiff submits the following statement of disputed material facts in support of her
opposition to Defendant Pacific Bell Telephone Company’s motion for summary judgment /
summary adjudication:
1
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSADefendant’s Allegedly Undisputed
Material Facts and Supporting
Evidence
Plaintiff’s Response
and Supporting Evidence
1. Plaintiff alleges she made
contact with one or more low-hanging
utility wires while riding her bicycle
on the 600 block of 23™ Avenue, San
Francisco at about 10:30 am on
November 23, 2015, and fell to the
street.
Plaintiff's Complaint.
1. Undisputed
2. Marc Twomey was driving his
car north on 23™ Avenue about 15 to
20 feet behind Plaintiff as she rode
her bicycle, and saw a low-hanging
cable catch Plaintiff in the neck and
flip her in the air.
Declaration of Marc Twomey, 1:25—
2:2, attached as Exhibit A to the
Evidence.
2. Undisputed that Mare Twomey was riding behind
Plaintiff and saw her being knocked off her bicycle by a
low hanging cable.
Disputed that Marc Twomey was 15 to 20 feet behind
Plaintiff. During his deposition, he corrected the
declaration Pacific Bell’s attorney drafted for him and
testified he was about three car lengths behind the
bicyclist.
(Exh. “K” - Depo of M. Twomey pp. 31:18-20)
3. Twomey stopped his car just
short of the low-hanging cable,
assisted Plaintiff as she lay in the
street and called 911 and took photos.
Twomey Dec., 2:2-13, and 9 photos
attached as Exhibit C to the Evidence
(first 9 photos).
3. Undisputed that Mr. Twomey stopped his car just
short of a low hanging wire.
Disputed to the extent that this alleged fact is intended
to indicate that the low-hanging cable Mr. Twomey
stopped his car behind was the one that pulled Plaintiff
off of her bicycle.
Mr. Twomey’s May 25, 2018 declaration confirmed that
he believes the wire Plaintiff struck is the wire that was
down on the street, not the wire that apparently did not
break and was still hanging just above the street. (Exh.
“B” - 5/25/18 Dec. M. Twomey, paras. 4-7.)
Mr. Twomey confirmed in deposition, that Pacific
Bell’s attorney had given him the information that the
wire Plaintiff struck did not break, because at the time
he did not actually recall which wire it was that Plaintiff
struck. Upon going back to the scene with this
photographs, however, he remembered that the line that
2
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAPlaintiff struck was the line that was lying in the street
next to her and not the line that was still hanging
slightly above the street.
“Mr. Mullen: And why did you tell me, as set forth in
this declaration, that there was only one line hanging
across the street?
A: As I told you in the beginning when we spoke, I
didn’t really recall what had happened that day, and I
was going vaguely on what —I told you that.”
(Exh. “K” - Depo. M. Twomey p. 35:9-14.)
Mr. Twomey further explained that the information
included in his initial declaration, where he said that the
line Plaintiff struck did not break, had actually come
from Mr. Mullen:
“Mr. Mullen: Okay. And you said in your [May 25,
2018] statement: ‘I assumed that he knew what he was
talking about.’
A: Correct.
Mr. Mullen: So what were you referring to as to what I
was talking about —
A: Details — details to the incident —
Mr. Mullen: Okay.
A: Of her hitting the line and things like that.
Mr. Mullen: I didn’t tell you what happened; I asked
you what happened, right?
A: I said I didn’t remember.
Mr. Mullen: Okay. Is there something that you
assumed that I knew what I was talking about that you
don’t believe I knew at the time?
A: Correct.
3
Plaintiff's Separate Statement In Supvort of Opposition to Pacific Bell’s MSJ and MSAMr. Mullen: What?
A: You-— you brought it up that she had — she hit the
line and you asked me about the line breaking. I said I
don’t remember, and you, like, well, the line didn’t
break and I’m like, I don’t remember — your like — you
said that and I was like, sure, and then we talked about
the house and I said I’m not sure, but I think it’s a light
house with dark trim.
Mr. Mullen: Okay. If you said those things to me, as
you just described them, then why didn’t you make
corrections to the declaration about those things? ... I
mean, why did you end up signing the declaration? I did
ask you to correct any inaccuracies —
A: I-again, I assumed everything that we talked about
was correct, so I signed it. I made the one correction
that we talked about earlier.
Mr. Mullen: but I didn’t tell you that there was only one
line across the street —
A: Yes, you told me that the line didn’t break.
Mr. Mullen: No, actually I asked you whether the line
broke, didn’t I?
A: You said, I didn’t know, but you said: ‘It didn’t
break did it?’ And you asked me again.
Mr. Mullen: I’m not going to argue with you.
Mr. Mullen: Is there anything else that your referring to
here by details I provided you?
A: Again, you spoke of the incident, and I assumed you
knew what you were talking about because you’re like
the lady hit the line and I’m calling, you know, to get
your behalf declaration from it, so I assumed you knew.
Mr. Mullen: Is there anything else that you were
referring to by your statement you assumed I knew what
I was talking about?
A: You —you spoke on it as if everything was — again, I
didn’t remember what had happened, you came to me
4
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAand then you asked me the questions and I said I didn’t
remember. Then you’re like, Well, the line didn’t
break — well, you know, so I said okay, it didn’t break.
(Exh. “K” - Depo. M. Twomey, pp. 97:23-101:20,
emphasis added.)
4, Eduardo Rodriguez and his
wife Ariel arrived at the scene driving
south on 23 Avenue.
Declaration of Eduardo Rodriguez,
1:25-27, attached as Exhibit B to the
Evidence,
4. Undisputed.
5. Eduardo assisted Plaintiff
while Ariel called 911 and took
photos.
Rodriguez Dec., 2:1-6, and 3 photos
attached as Exhibit C to the Evidence
(last 3 photos).
5. Undisputed.
6. Plaintiff made contact with
only one cable.
Twomey Dec., 2:1-3, 7-8, 13-15 and
Ex. C photos numbered ESBORG
000004, 000005, 0000011 and
000012.
6. Undisputed.
7. The cable Plaintiff ran into
did not snap or break and remained
hanging low across the street after the
accident.
Twomey Dec., 2:2-3, 13-15 and Ex.
C photos numbered ESBORG
000004, 000005, 0000011 and
000012; Rodriguez Dec. 2:7-9 and
Ex. C photo ESBORG 000014.
7. Disputed.
The declaration of Eduardo Rodriguez does not say
anything that supports this alleged fact.
Witness Marc Twomey has explained that when he
spoke with AT&T’s attorney about a declaration, he told
the attorney that he had not been back to the scene of the
collision and did not recall off hand whether the wire or
cable that Plaintiff struck broke or not. The AT&T
attorney told Mr. Twomey that the wire had not broken.
Mr. Twomey assumed the attorney was correct and
signed a declaration that included what the AT&T
attomey had told him.
5
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAAs Mr. Twomey explained in deposition:
“Mr. Mullen: And why did you tell me, as set forth in
this declaration, that there was only one line hanging
across the street?
A: As I told you in the beginning when we spoke, I
didn’t really recall what had happened that day, and I
was going vaguely on what — I told you that.”
(Exh. “K” - Depo. M. Twomey p. 35:9-14.)
Mr. Twomey explained that the information included in
his initial declaration, where he said that the line
Plaintiff struck did not break, had actually come from
Mr. Mullen:
“Mr. Mullen: Okay. And you said in your [May 25,
2018] statement: ‘I assumed that he knew what he was
talking about.”
A: Correct.
Mr. Mullen: So what were you referring to as to what I
was talking about —
A: Details — details to the incident —
Mr. Mullen: Okay.
A: Ofher hitting the line and things like that.
Mr. Mullen: I didn’t tell you what happened; I asked
you what happened, right?
A: I said I didn’t remember.
Mr. Mullen: Okay. Is there something that you
assumed that I knew what I was talking about that you
don’t believe I knew at the time?
A: Correct.
Mr. Mullen: What?
6
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAA: You — you brought it up that she had — she hit the
line and you asked me about the line breaking. Y said I
don’t remember, and you, like, well, the line didn’t
break and I’m like, I don’t remember — your like — you
said that and I was like, sure, and then we talked about
the house and I said I’m not sure, but I think it’s a light
house with dark trim.
Mr. Mullen: Okay. If you said those things to me, as
you just described them, then why didn’t you make
corrections to the declaration about those things? ... I
mean, why did you end up signing the declaration? I did
ask you to correct any inaccuracies —
A: I—again, I assumed everything that we talked about
was correct, so I signed it. I made the one correction
that we talked about earlier.
Mr. Mullen: but I didn’t tell you that there was only one
line across the street —
A: Yes, you told me that the line didn’t break.
Mr. Mullen: No, actually I asked you whether the line
broke, didn’t I?
A: You said, I didn’t know, but you said: ‘It didn’t
break did it?’ And you asked me again.
Mr. Mullen: I’m not going to argue with you.
Mr. Mullen: Is there anything else that your referring to
here by details I provided you?
A: Again, you spoke of the incident, and I assumed you
knew what you were talking about because you’re like
the lady hit the line and I’m calling, you know, to get
your behalf declaration from it, so I assumed you knew.
Mr. Mullen: Is there anything else that you were
referring to by your statement you assumed I knew what
I was talking about?
A: You — you spoke on it as if everything was — again, I
didn’t remember what had happened, you came to me
and then you asked me the questions and I said I didn’t
7
Plaintiffs Sevarate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA.remember. Then you’re like, Well, the line didn’t
break — well, you know, so I said okay, it didn’t break.
(Exh. “K” - Depo. M. Twomey, pp. 97:23-101:20,
emphasis added.)
After subsequently going with Plaintiff's attorney to the
scene and after reviewing his photographs at the scene,
Mr. Twomey’s recollection was refreshed that the cable
or wire the bicyclist struck had actually broken or
become detached and was the wire/cable that was lying
in the street next to the bicyclist.
As Mr. Twomey explained in his May 25, 2018
declaration:
“When I got out of my car, I noticed that there were
three wires down. The wire that caught the lady by her
neck and pulled her off of her bicycle is the one that was
lying on the ground in my pictures. When I reviewed
my pictures, while I was standing on 23 Avenue
looking at the scene the other day, I recalled that I had
photographed the path of the wire that hurt the lady,
from the pole to its end. The photograph on page 1.1
shows the pole with wires hanging down, including the
wire that is hanging over the back of a green car. The
photograph on page 1.3 traces the wire that caught the
bicyclist as it hung across the back of a green car and
was lying on the ground. The photograph on page 1.4
traces the same wire along the ground and up to the
bicyclist’s knees. The photograph on page 1.5 traces the
wire past the bicyclist to the end that was lying on the
ground. The photograph on page 1.6 shows the same
wire next to the bicyclist. The wire that pulled the lady
off her bicycle is the wire that is shoe in the photographs
on pages 1.3, 1.4. 1.5 and 1.6 of Exhibit “1.”
(Exh. “B” - Dec. of M. Twomey (dated May 25, 2018)
paras. 2-7.)
8. Two other utility lines were
hanging loose from a nearby
telephone pole but did not span across
the street. One lay downed in the
street.
8. Undisputed that three wires were down. Mr.
Twomey testified and his photographs show that after
Ms. Esborg was injured one wire was lying in the street
near her. A second wire was hanging low across the
street, just a couple of feet above the ground. A third
wire was hanging down by the telephone pole.
8
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSATwomey Dec., 2:6—-8, 15-17 and Ex.
C photos numbered ESBORG 000004
and 000006 through 000009;
Rodriguez Dec. 1:27-28, 2:7-9 and
Ex. C photo ESBORG 000014.
Disputed to the extent that the alleged fact implies that
the wire that was lying down in the street was not the
wire that pulled Plaintiff off of her bicycle. (See
disputed facts 6 & 7.)
9. Firefighters arrived and cut or
removed the low-hanging cable from
a house and spooled and hung it on a
telephone pole across the street.
Twomey Dec., 2:19-21; Rodriguez
Dec., 2:11-12.
9. Undisputed that firefighters arrived at the scene and
addressed the cables and hung at least one of them back
on the telephone pole.
Disputed that the low-hanging cable had been attached
to a specific house.
1) According to Mr. Twomey’ May 25, 2018
declaration:
“10. On the day the lady was injured, I, frankly,
did not pay too much attention to where the three
wires had been attached on the houses across the
street from the utility pole. When the incident
was occurring, I was focused on the lady as she
was being pulled off her bicycle and falling to
the ground. Later, when I was taking
photographs, I did not attempt to trace where the
wire that was still suspended low over the street
was attached on the east side of the street. (See
my photographs on Exhibit 1, pages 1.1, 1.2. 1.8,
and 1.9.)
11. Having now been to the scene with my
photographs, I cannot say whether the wire that
was still suspended just above the street in my
photographs was hanging from the house that
had dark trim at 640 23™ Avenue. It could have
been originally attached to any of the three
houses at 630 23" Avenue, 634 23™ Avenue, or
640 23" Avenue. When I first noticed it after
the incident, it may have been hanging off the
house at 634 23" Avenue or hanging off the
house at 640 23rdAvenue.”
(Exh. “B” - Dec. M. Twomey (May 25, 2018)
paragraphs 10 & 11.)
2) During Mr. Twomey’s deposition, counsel for
9
Plaintiff's Separate Statement In Suovort of Opposition to Pacific Bell’s MSJ and MSAPacific Bell played his 911 call, wherein Mr.
Twomey told the 911 operator that the
wire/cable, that he thought was a power cable,
was hanging from a bush. Mr. Twomey could
not, however, recall during his deposition which
bush from a photograph he was shown by Pacific
Bell’s counsel.
(Exh. “K” - Depo. M. Twomey pp. 68:20-75:18.)
10. _A firefighter who removed the
low-hanging cable from the house
said it was a Comcast cable.
Twomey Dec., 2:22-23; Deposition.
of Kara Esborg at 154:19-155:16 and
159:21-160:1 and Ex. 4 thereto,
attached as Exhibit F to the Evidence.
10. Objections: Double and triple hearsay — The
firefighter allegedly made the comment to Mare
Twomey, who told Kara Esborg what he had hear. No
foundation. (Please see Plaintiffs objections to
Defendant’s evidence.)
Undisputed that an unnamed firefighter said it was a
Comcast cable.
Disputed whether it was a Comcast or Pacific Bell
cable. As Mr. Twomey explained in his May 25, 2018
declaration:
“12. I want to clarify something else in the declaration
that I signed for the gentleman at AT&T. I do not know
who owned any of the three wires that were hanging off
the utility pole. The firefighter who came to the scene
cut the wire that was still hanging across the street. She
said it was a Comcast wire. I do not know what
information she used to make that statement. I just
heard her say it. ...”
€E Exh. “B” - Dec. M. Twomey (May 25, 2018) para.
12.)
11. The low-hanging cable had
been attached to a house light in color
with dark trim.
Twomey Dec., 2:23.
11. Disputed that Mare Twomey actually knew which
house the low-hanging cable had been attached to before
the collision.
1) Mr. Twomey has confirmed that the wire that
caught Plaintiffs neck and pulled her off her
bicycle was the wire that was lying in the street,
not the wire that was low-hanging across the
street after the incident.
(Exh. “B” - Dec. of M. Twomey (May 25, 2018)
paras 2-7.)
10
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA2) According to Mr. Twomey’ May 25, 2018
declaration:
“10. On the day the lady was injured, I, frankly,
did not pay too much attention to where the three
wires had been attached on the houses across the
street from the utility pole. When the incident
was occurring, I was focused on the lady as she
was being pulled off her bicycle and falling to
the ground, Later, when I was taking
photographs, I did not attempt to trace where the
wire that was still suspended low over the street
was attached on the east side of the street. (See
my photographs on Exhibit 1, pages 1.1, 1.2. 1.8,
and 1.9.)
11. Having now been to the scene with my
photographs, I cannot say whether the wire that
was still suspended just above the street in my
photographs was hanging from the house that
had dark trim at 640 23" Avenue. It could have
been originally attached to any of the three
houses at 630 23" Avenue, 634 23" Avenue, or
640 23" Avenue. When I first noticed it after
the incident, it may have been hanging off the
house at 634 23 Avenue or hanging off the
house at 640 23rdAvenue.”
(Exh. “B” - Dec. M. Twomey (May 25, 2018)
paragraphs 10 & 11.)
3) Mr. Twomey explained during his deposition
that he really does not know where the wire that
was still hanging a couple of feet above the
ground had been attached. He explained that his
initial declaration was not correct:
“Mr. Mullen: ‘The next sentence in paragraph
four states: ‘The house the cable had been
attached to was light colored with dark trim.’ Is
that a correct statement?
A: No.
Mr. Mullen: The line — the line that she
11
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAremoved from the house, what house did she
remove it from?
A: I don’t remember.
Mr. Mullen: Okay. What leads you to think that
what you told me - what appears in the April 24,
2018 declaration, is not correct?
A: Seeing the houses together, within that area,
we had nothing to do with that house. It was
nothing — it was just a house I guess I recall
because of the coloring, but the line was not
pulled from there. I know for a fact it wasn’t -
I’m not sure which house it came off of, if it was
the next one over, or the other one, but it wasn’t
that house because the house was behind — the
house is behind the tree and then — this — number
~is that 6? I think that’s 6, I’m sorry, I don’t
have my glasses.
Mr. Mullen: Why don’t we look at Exhibit 5,
this one? Exhibit 5 shows the line that was still
hanging across the street; right?
A: Correct. From this picture I can’t tell which
house, again, its on.
Mr. Mullen: So you haven’t seen any photos
that show what house that line was attached to;
right?
A: Correct.
Mr. Mullen: You saw the firefighter, I believe
your words were: ‘Jerk it form the house” --
A: Correct.
Mr. Mullen: -- right, is what you’re saying now?
You don’t reall which house the firefighter
jerked it from?
A: Correct.
Mr. Mullen: Do you think the line was attached
12
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA4)
5)
6)
1
to the house next to the light colored house with
dark trim?
A: I don’t know. I don’t know if it was — I don’t
know if it was on this one or on that one.
(Exh. “K” - Depo. M. Twomey, pp. 59:12-
63:21.)
During Mr. Twomey’s deposition, counsel for
Pacific Bell played his 911 call, wherein Mr.
Twomey told the 911 operator that the
wire/cable, that he thought was a power cable,
was hanging from a bush. Mr. Twomey could
not, however, recall during his deposition which
bush from a photograph he was shown by Pacific
Bell’s counsel.
(Exh. “K” - Depo. M. Twomey pp. 68:20-
75:18.)
The light colored house with the dark trim is
640 23" Avenue. The owner testified in
deposition that he went outside while Ms.
Esborg was on the ground and provided ice to be
placed on her head. He does not recall any of his
own service drops being down or losing any
utility services. He also does not recall having
Comcast or any other utility come out to replace
or repair any wires on his house.
(Exh. “L” Depo. M. Brozinsky pp. 53:7-9,
66:17-67:3 and 84:11-13.)
As he did to Marc Twomey, AT&T’s attorney
contacted Mr. Brozinsky and tried to get him to
sign a declaration saying his Comcast service drop
was down, but when Mr. Brozinsky tried to correct
the declaration, AT&T’s Counsel dropped the
matter.
(Exh. “L” - Depo. M. Brozinsky pp. 97:22-98:12.)
Comcast claims it has no record of making
service calls to the 600 block of 23" Ave. in
November or December 2015.
(Exh. “S” - Depo. K. Domer pp. 112:16-113:8;
13
Plaintiff's Sevarate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA.Exh. “T” - Depo. R. Benedetto, p. 93:14-18; and
Exh. “U” - Depo. J. Leto pp. 82:6-83:3 & 83:22-
84:4.)
12. The address of the house to
which the low-hanging cable had
been attached is 640 23" Avenue.
Declaration of Robert B. Mullen,
1:25-2:3 and Ex. 1 thereto, attached
as Exhibit D to the Evidence;
Twomey Dec., 2:23.
12. Disputed that Marc Twomey actually knew which
house the low-hanging cable had been attached to before
the collision.
1) Mr. Twomey has confirmed that the wire that
caught Plaintiffs neck and pulled her off her
bicycle was the wire that was lying in the street,
not the wire that was low-hanging across the
street after the incident.
(Exh. “B” - Dec. of M. Twomey (May 25, 2018)
paras 2-7.)
2) According to Mr. Twomey’ May 25, 2018
declaration:
“10. On the day the lady was injured, I, frankly,
did not pay too much attention to where the three
wires had been attached on the houses across the
street from the utility pole. When the incident
‘was occurring, I was focused on the lady as she
was being pulled off her bicycle and falling to
the ground. Later, when I was taking
photographs, I did not attempt to trace where the
wire that was still suspended low over the street
was attached on the east side of the street. (See
my photographs on Exhibit 1, pages 1.1, 1.2. 1.8,
and 1.9.)
11. Having now been to the scene with my
photographs, I cannot say whether the wire that
was still suspended just above the street in my
photographs was hanging from the house that
had dark trim at 640 23™ Avenue. It could have
been originally attached to any of the three
houses at 630 23™ Avenue, 634 23™ Avenue, or
640 23" Avenue. When I first noticed it after
the incident, it may have been hanging off the
house at 634 23 Avenue or hanging off the
house at 640 23rdAvenue.”
(Exh. “B” - Dec. M. Twomey (May 25, 2018)
paragraphs 10 & 11.)
14
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA3) Mr. Twomey explained during his deposition
that he really does not know where the wire that
was still hanging a couple of feet above the
ground had been attached. He explained that his
initial declaration was not correct:
“Mr. Mullen: ‘The next sentence in paragraph
four states: ‘The house the cable had been
attached to was light colored with dark trim.’ Is
that a correct statement?
A: No.
Mr. Mullen: The line ~ the line that she
removed from the house, what house did she
remove it from?
A: I don’t remember.
Mr. Mullen: Okay. What leads you to think that
what you told me - what appears in the April 24,
2018 declaration, is not correct? 7
A: Seeing the houses together, within that area,
we had nothing to do with that house. It was
nothing — it was just a house I guess I recall
because of the coloring, but the line was not
pulled from there. I know for a fact it wasn’t -
T’m not sure which house it came off of, if it was
the next one over, or the other one, but it wasn’t
that house because the house was behind — the
house is behind the tree and then — this — number
—is that 6? I think that’s 6, I’m sorry, I don’t
have my glasses.
Mr. Mullen: Why don’t we look at Exhibit 5,
this one? Exhibit 5 shows the line that was still
hanging across the street; right?
A: Correct. From this picture I can’t tell which
house, again, its on.
Mr. Mullen: So you haven’t seen any photos
that show what house that line was attached to;
right?
15
Plaintiff's Separate Statement In Supvort of Opposition to Pacific Bell’s MSJ and MSAA: Correct.
Mr. Mullen: You saw the firefighter, I believe
your words were: ‘Jerk it form the house” --
A: Correct.
Mr. Mullen: -- right, is what you’re saying now?
You don’t reall which house the firefighter
jetked it from?
A: Correct.
Mr. Mullen: Do you think the line was attached
to the house next to the light colored house with
dark trim?
A: Idon’t know. I don’t know if it was — I don’t
know if it was on this one or on that one.
(Exh. “K” - Depo. M. Twomey, pp. 59:12-
63:21.)
4) During Mr. Twomey’s deposition, counsel for
Pacific Bell played his 911 call, wherein Mr.
Twomey told the 911 operator that the
wire/cable, that he thought was a power cable,
was hanging from a bush. Mr. Twomey could
not, however, recall during his deposition which
bush from a photograph he was shown by Pacific
Bell’s counsel.
(Exh. “K” - Depo. M. Twomey pp. 68:20-75:18.)
5) The light colored house with the dark trim is
640 23" Avenue. The owner testified in
deposition that he went outside while Ms.
Esborg was on the ground and provided ice to be
placed on her head. He does not recall any of his
own service drops being down or losing any
utility services. He also does not recall having
Comeast or any other utility come out to replace
or repair any wires on his house.
16
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA(Exh. “L” - Depo. M. Brozinsky pp. 53:7-9,
66:17-67:3 and 84:11-13.)
6) As he did to Marc Twomey, AT&T’s attomey
contacted Mr. Brozinsky and tried to get him to
sign a declaration saying his Comcast service drop
was down, but when Mr. Brozinsky tried to correct
the declaration, AT&T’s Counsel dropped the
matter.
(Exh. “L” - Depo. M. Brozinsky pp. 97:22-98:12.)
7) Comcast claims it has no record of making
service calls to the 600 block of 23 Ave. in
November or December 2015.
(Exh. “S” - Depo. K. Domer pp. 112:16-113:8;
Exh. “T” - Depo. R. Benedetto, p. 93:14-18; and
Exh. “U” - Depo. J. Leto pp. 82:6-83:3 & 83:22-
84:4.)
13. Prior to the accident, Pacific
Bell Telephone Company did not
receive any notice that a line of any
kind was downed or low-hanging on
the 600 block of 23 Avenue.
Declaration of Joshua Mathisen, 2:4-
13 and 20-22, attached as Exhibit E to
the Evidence.
13. Undisputed that Plaintiff has no evidence that
Pacific Bell had notice that the service drops were down
before Plaintiff was injured.
Disputed to the extent that this alleged fact has any
bearing on this case. As explained in detail below, the
evidence here is that Pacific Bell negligently installed,
monitored, and/or maintained the anchor that held the
service drops to the house, thus allowing them to fall.
The issue is not whether Pacific Bell had notice after the
service drops fell.
1) Low hanging service drops are well known in
the cable TV and communications industry to be
very dangerous safety hazards. They are known
to cause injuries to pedestrians, bicyclists,
motorcyclists, snowmobile drivers, and others.
General Order 95 explicitly requires
communications service drops that extend over
roadways to be no lower than 18 feet above the
center of urban roadways and no lower than 16
feet above the curb of a roadway. California
Vehicle Code § 35250 states that the tallest
vehicle allowed in California may only be 14
feet, three inches high (double decker buses
only). The minimum height requirements in
17
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAG.O, 95 are specifically intended to prevent
vehicles from coming into contact with any
overhead line, including service drops, and
bringing them down where they can hurt people
and/or cause property damage.
(Dec. J. Kramer, para. 23)
2) “... communication systems shall be designed,
constructed, and maintained for their intended use,
regard being given to the conditions under
which they are to be operated, to enable the
3)
4)
furnishing of safe, proper, and adequate service.”
(G.O. 95, Rule 31, § 31.1, emphasis added.) In
order to maintain the required minimum 18 foot
height of service drops above the centerline of
roadways and prevent injuries, the entirety of the
service drops from end to end must be regularly
inspected and, as required, repaired.
(Dec. J. Kramer, para. 24)
Baring natural disasters, third-party accidents that
damage utility poles, or negligence on the part of
someone working on a house or building (none of
which appear to apply in this matter), if a service
drop is struck by a vehicle on a city street, the drop
was either negligently allowed to fall too low
across the roadway because of improper
maintenance, or the drop was negligently initially
installed too low above the roadway. Under either
scenario, the drop could have not been reasonably
or safely installed or adequately inspected and
maintained.
(Dec. J. Kramer, para. 25.)
It is inadequate, not reasonable, and quite
dangerous for communication companies that
own service drops to only check the end of a
service drop that is attached to a utility pole and
the then existing height of the wire. Reasonable,
proactive preventive maintenance, as well as the
minimum inspection and maintenance
requirements mandated by General Order 95,
demand that companies with communications
service drops inspect the drops from end-to-end
to determine whether the attachments, anchors,
and materials the anchors are affixed to are not
damaged or degraded so that the height of the
cables above ground meet the minimum safety
18
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSArequirements in G.O. 95. Proactive inspections
and preventive maintenance are required to
prevent service drops from falling. It is too late
once service drops have fallen and created safety
hazards across streets, sidewalks, driveways, etc.
The purpose and goal of General Order 95 is to
prevent injuries and damage; not simply to guide
those obligated to follow its rules to respond
after an injury or damage has occurred.
(Dec. J. Kramer, para. 31.)
14. The first time Pacific Bell
received any notice of a problem near
the location of the accident was when
a Pacific Bell customer living at 634
23" Avenue called, at about 8:20 in
the evening after the accident, and
reported that they had lost their
internet connection.
Mathisen Dec., 2:14-16.
14. Undisputed that Pacific Bell received notice on the
evening of November 23, 2015 that its service was out
to its customer at 634 23™ Avenue.
Disputed to the extent that this alleged fact has any
bearing on this case. As explained in detail below, the
evidence here is that Pacific Bell negligently installed,
monitored, and/or maintained the anchor that held the
service drops to the house, thus allowing them to fall.
The issue is not whether Pacific Bell had notice after the
service drops fell.
1) Low hanging service drops are well known in
the cable TV and communications industry to be
very dangerous safety hazards. They are known
to cause injuries to pedestrians, bicyclists,
motorcyclists, snowmobile drivers, and others.
General Order 95 explicitly requires
communications service drops that extend over
roadways to be no lower than 18 feet above the
center of urban roadways and no lower than 16
feet above the curb of a roadway. California
Vehicle Code § 35250 states that the tallest
vehicle allowed in California may only be 14
feet, three inches high (double decker buses
only). The minimum height requirements in
G.O. 95 are specifically intended to prevent
vehicles from coming into contact with any
overhead line, including service drops, and
bringing them down where they can hurt people
and/or cause property damage.
(Dec. J. Kramer, para. 23)
19
Plaintiff's Separate Statement In Supvort of Opposition to Pacific Bell’s MSJ and MSA2) “... communication systems shall be designed,
constructed, and maintained for their intended use,
regard being given to the conditions under
which they are to be operated, to enable the
furnishing of safe, proper, and adequate service.”
(G.O. 95, Rule 31, § 31.1, emphasis added.) In
order to maintain the required minimum 18 foot
height of service drops above the centerline of
roadways and prevent injuries, the entirety of the
service drops from end to end must be regularly
inspected and, as required, repaired.
(Dec. J. Kramer, para. 24)
3) Baring natural disasters, third-party accidents that
damage utility poles, or negligence on the part of
someone working on a house or building (none of
which appear to apply in this matter), if a service
drop is struck by a vehicle on a city street, the drop
was either negligently allowed to fall too low
across the roadway because of improper
maintenance, or the drop was negligently initially
installed too low above the roadway. Under either
scenario, the drop could have not been reasonably
or safely installed or adequately inspected and
maintained.
(Dec. J. Kramer, para. 25.)
4) Itis inadequate, not reasonable, and quite
dangerous for communication companies that
own service drops to only check the end of a
service drop that is attached to a utility pole and
the then existing height of the wire. Reasonable,
proactive preventive maintenance, as well as the
minimum inspection and maintenance
requirements mandated by General Order 95,
demand that companies with communications
service drops inspect the drops from end-to-end
to determine whether the attachments, anchors,
and materials the anchors are affixed to are not
damaged or degraded so that the height of the
cables above ground meet the minimum safety
requirements in G.O. 95. Proactive inspections
and preventive maintenance are required to
prevent service drops from falling. It is too late
once service drops have fallen and created safety
hazards across streets, sidewalks, driveways, etc.
The purpose and goal of General Order 95 is to
prevent injuries and damage; not simply to guide
those obligated to follow its rules to respond
20
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAafter an injury or damage has occurred.
(Dec. J. Kramer, para. 31.)
15. Pacific Bell’s customer at 634
23" Avenue was its only customer on
the 600 block of 23 Avenue
requiring service of any kind on or
after November 23, 2015, through the
end of 2015.
Mathisen Dec., 2:22-23.
15. Undisputed. The evidence is that three service
drops fell were attached to one anchor that was mounted
to the side of 630 23™ Avenue and provided or had
previously provided service to 634 23" Avenue.
Plaintiff submits the following additional material facts in support of her opposition to
Defendant’s motion for summary judgment or in the alternative summary adjudication.
PLAINTIFF’S COMPLAINT
PLAINTIFF’S FACTS
EVIDENCE IN SUPPORT OF PLAINTIFF’S
FACTS
16. Plaintiff filed her complaint on August
11, 2016. On June 8, 2017, Plaintiff filed
and served a doe amendment identifying
defendants AT&T Corp. and AT&T
Services.
16, Exh. “A.”
17. Plaintiff's first cause of action for
general negligence alleges:
“Defendants, and each of them, negligently
constructed, installed, maintained, managed,
monitored, surveyed, controlled, and/or
repaired, the connections on the utility wires
such that they ... became disconnected or
loosened form the utility pole and/or
house/dwelling and hung down low in the
roadway where a bicyclist could become
entangled in them. Defendants, and each of
them, negligently constructed, installed,
maintained, managed, monitored, surveyed,
controlled, and/or repaired the wires such
that they hung down in the roadway where a
bicyclist could become entangled in them.”
17. Exh. “A” - Complaint, First Cause of
Action, General Negligence.
21
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA.18. Plaintiff's complaint alleges that the
defendants, and each of them, were liable for
the “negligent repair, maintenance,
supervision, control, inspection, and/or
monitoring of the utility wires and/or their
attaching hardware or mounts.”
18. Exh. “A” - Complaint, Second Cause of
Action, Prem.L-5.
19. Plaintiff's complaint also alleges that the
defendants, and each of them, are liable
based upon product liability theories.
19. Exh. “A” - Complaint, Third Cause of
Action, Product Liability.
IDENTIFYING
SERVICE DROPS
PLAINTIFF’S FACTS
EVIDENCE IN SUPPORT OF PLAINTIFF’S
FACTS
20. “Service drops” or “drops” are the utility
lines that run between a utility pole and a
home to provide services to the home.
20. Exh. “T” - Depo. R. Benedetto p. 30:18-20
& Exh. “N” - Depo. E. Johnson p. 31:7-9.
20a. Utility Pole 80303, in the 600 block of
23" Ave. in San Francisco, is jointly owned
by PG&E and AT&T
20a. Exh. “M” — Depo J. Mathisen p 244:17-22
21, Most AT&T drops are black rectangular
shaped wires, of various sizes. AT&T also
uses round, black service drops.
21. Exh. “R”- Depo. W. Hester pp. 38:22-25,
39:5-7, & 39:8-16 and Exh. “P” - Depo. J.
Sabangan pp. 27:7-21 & 29:18-20.
22. Comcast only uses coaxial cable drops
that are black round wires that contain a
single copper wire and have with a small
1/16" inch “messenger” wire attached to the
side.
22. Exh. “S” - Depo. K. Domer pp. 39:13-40:22
and Exh. “T” - R. Benedetto p. 55:19-24,
23. Communication service drops owned by
AT&T and Comcast, that provide internet,
telephone, and cable television services,
emanate from the lowest level of the utility
pole.
23. Exh. “S” - Depo. K. Domer p. 44:19-22.
24, PG&E’s electrical service drops emanate
from the top of a utility pole and were not
involved in the incident at issue here.
24. Exh. “S” - Depo. K. Domer p. 44:10-18.
25. No companies, other than AT&T and
Comcast, had service drops on the subject
25. Dec. J. Kramer, paras. 18-20; Exh. “V” -
Depo. K. Codding p. 20:16-25; Exh. “W” - Dec.
22
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA.utility pole at the time Plaintiff was injured.
The other cable television provider in San
Francisco, Wave Division, has never had any
equipment on the utility pole. Sonic.Net, an
internet provider, first attached equipment to
the pole in 2016 or 2017, long after Plaintiff
was injured.
of B. Coutch made in support of Wave
Division’s Motion for Summary Judgement,
para. 3.
25A. Homeowners are not responsible to
maintain the service drops that are attached
to their homes.
25A Exh. “N” — Depo. E. Johnson pp. 113:25-
117:5 and Exh. “U” - Depo. J. Leto, p. 41:14-22
THE COLLISION THAT INJURED KARA ESBORG
PLAINTIFF’S FACTS
EVIDENCE IN SUPPORT OF PLAINTIFF’S
FACTS
26. On November 23, 2015, 51-year-old
Kara Esborg was riding her bicycle on 23
Ave. She was wearing her helmet, gloves,
and fluorescent and reflective riding clothes.
26. Exh. “I” - Depo. K. Esborg, Vol. 1, pp. 49:8-
11, 50:9-11, 50:18-51:7, & 53:2-13.
27. As she peddled northbound, at
approximately 10 to 12 miles per hour, she
suddenly felt something hit her in the face.
The next thing she knew, she was lying on
the ground. Her head was bleeding, and a
man with a phone was next to her.
27. Exh. “I” - Esborg Depo, Vol. 1, 60:19-61:2
& 68:21-69:6.)
28. She only recalls snip-its of time at the
scene, in the ambulance, at the San Francisco
General Hospital, and at the Kaiser San
Francisco Hospital where she was hospitalized
for the next four days. Her persistent
memories start while she was in a Kaiser brain
injury rehabilitation center in Vallejo,
California.
28. Exh. “I” - Esborg Depo, Vol. 1, 69:21-
70:10, 71:14-16, 80:18-23, 100:17-101:11 &
Exh. “J” - Depo. K. Esborg Vol. 2 pp. 235:20-
236:6.
29. Witness Marc Twomey described what he
saw in a May 25, 2018 declaration:
On the morning of November 23,
2015, I was driving northbound on
23™ Avenue behind a bicyclist. The
bicyclist was driving what I would
consider an average speed. Her pace
was not fast or slow. She was
wearing a bicycle helmet. Suddenly I
saw her flip up into the air and land
on her back and head on the street.
Her bicycle continued forward and
29. Exh. “B” - 5/25/18 Dec. of M. Twomey,
para. 6.
23
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAran into a parked car. A low hanging
wire had caught her neck and
knocked her off of her bicycle when it
became taut. I saw her helmet fly off
her head. I stopped, spoke with the
woman and called 911. Another
gentleman and his wife pulled up
from the opposite direction. He said
that he was a doctor, and he started
tending to the bicyclist.
30. Mr. Twomey took nine photographs at
the scene.
30. Exh. “B” - 5/25/18 Dec. of M. Twomey,
para. 4 & Exh. 1.
31. When he got out of his car, Mr. Twomey
found that three utility wires were down.
31. Exh. “B” - 5/25/18 Dec. of M. Twomey,
para. 7.
32. The wire that Ms. Esborg struck can be
seen on the ground next to her in some of his
photographs.
32. Exh. “B” - 5/25/18 Dec. of M. Twomey,
para. 7.
33. Counsel for AT&T had told Mr. Twomey
that Ms. Esborg had been knocked off her
bicycle by a different service drop that was still
hanging about two feet above the roadway.
The incorrect information was included in the
declaration AT&T relies upon in support of the
present motion.
33. Exh. “B” - 5/25/18 Dec. of M. Twomey,
paras. 2-3.
34. After going to the scene with his
photographs, Mr. Twomey realized that the
information defense counsel had suggested was
incorrect and confirmed that the wire the
bicyclist struck became disconnected and is the
wire that is lying on the street next to her body.
He corrected the misinformation in his May
25, 2018 declaration and in a May 31, 2018
deposition.
34. Exh. “B” - 5/25/18 Dec. of M. Twomey,
paras. 2, 3, 4, 5, & 7 and Exh. “K” - Depo. M.
Twomey, pp. 49:2-17; 50:5-24; and 97:23-
101:20.
35. Mr. Twomey also confirmed that he did
not know which house the wire that was still
suspended two feet above the roadway had
been attached.
35. Exh. “B” - 5/25/18 Dec. of M. Twomey,
paras. 8, 9, 10, & 11 and Exh. “K” - Depo. M.
Twomey, pp. 59:12-63:21 & 68:20-75:22.
THREE SERVICE DROPS FELL THAT HAD BEEN ATTACHED TO AN ANCHOR ON
THE SOUTH WALL OF 630 23°” AVENUE AND HAD SERVICED 634 23" AVENUE.
PLAINTIFF’S FACTS
EVIDENCE IN SUPPORT OF PLAINTIFF’S
FACTS
36. On the evening of November 23, 2015,
the resident of 634 23 Ave. complained to
36. Defense Dec. J. Mathisen para. 4.
24
Plaintiff's Separate Statement In Supvort of Opposition to Pacific Bell’s MSJ and MSAAT&T that her internet service was out.
37. The service drops for 634 23rd Ave.
were strung from a utility pole to an anchor
on the side of the three story house at 630
23" Ave. and then down to provide service to
the two story house at 634 23" Ave.
37. Exh, “D.1”-“D.5” - Street View Photographs
38. On November 24, 2015, AT&T sent a
technician to 634 23" Ave. to determine why
the customer’s internet was not working.
According to the technician’s report: “It
appears some drops have being [sic] knocked
down.”
38. Exh. “O” - Nov. 24. 2015 Job Detail Report
and Exh. “N” - Depo. E. Johnson pp. 105:16-
107:2 & 107:19-109:25.
39. On November 26, 2015, two AT&T
technicians ran a new service drop from
utility pole 80303 to the higher clip on the
side of the house at 630 23™ Ave., and down
to 634 23™ Ave. They noted in their service
report, “According to cux neighbor drop
was hanging too low, person on a bike hit
drop and flipped over, fire fighters cut drop
»
39. Exh, “P” - Depo. Julius Sabangan, pp.
87:14-21, 88:6-18; Exh. “R” - Depo. W. Hester
pp. 52:22-60:1; and Exh. “Q” - Nov. 26, 2015
Job Detail Report.
40. AT&T recently admitted that it does not
contend that anyone other than AT&T
installed the equipment used to affix the
missing service drops to 630 23 Avenue.
40. Exh. “X” - AT&T Responses to Special
Interrogatories 7 - 10.
41. AT&T does not have any documentation
about when the missing anchor was installed
that held the three service drop(s) or even
when any of the service drop(s) were
installed.
41. Exh. “M” - Depo. J. Mathisen pp. 100:1-
101:15 & 113:12-114:24; and Exh, “X” -
AT&T’s responses to special interrogatories 11-
13.
42. AT&T confirmed that its service drop that
was attached to 630 23" Ave. and serviced 634
23" Ave, was never inspected before
November 23, 2015.
42. Exh. “M” - Depo. J. Mathisen, pp. 104:12-
106:20.
43. Three service drops came down from a
single anchor that had been affixed to the
south wall of the house at 630 23™ Avenue.
The service drops had serviced the house at
634 23 Avenue.
43. Dec. of J. Kramer, paras. 13-16; Exhibits
“D1” —“D.5” - 8/14, 11/15, 2/16, and 3/16
Street View photos; and Exh. “M” - Depo. J.
Mathisen, pp. 139:2-141:23.)
25
Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA.44. Even though AT&T only had to replace
one drop to restore internet service to 634
23™ Ave., it admits that the other two drops
may have been, disconnected AT&T service
drops. It also claims the other two downed
drops may have been service drops from a
cable television provider.
44. Exh. “M” - Depo. J. Mathisen, pp. 139:2-
141:23.
45. A recent inspection of the roof at 630
23" Ave. found disconnected old AT&T
telephone drops lying on the roof of 634 23"
Ave.
45. Dec. of C. Perry paras. 5 & 6; Dec of J.
Kramer para. 36; and Exhs. “G.1” —“G.3” -
Photos of the wires.
46. AT&T has very recently claimed in
written discovery responses that even if its
drops for 634 23" Ave, fell, Plaintiff struck a
Comeast service drop that had also fallen
from 640 23" Ave.
46. Exh. “X” - AT&T responses to special
interrogatories 7-10.
47. Comcast claims it only installs one
service drop per home and that its service
drops for 630 and 634 23 Ave. were
attached individually to the western side
faces of those buildings, not to the southern
wall of 630 23™ Ave., above 634 23" Ave,
47. Exh. “S” - Depo. K. Domer pp. 74:9-20,
85:23-86:11, 89:7-24, 91:7-17, 106:1-107:11 and
Exh. “T” - Depo. R. Benedetto, pp. 77:13-78:9
& 79:18-80:1, & 80:2-5.)
48. According to Comcast, it never received
any requests to repair disrupted services to
630, 634, or 640 23" Ave. between
November 1, 2015 and December 31, 2015.
48. Exh. “S” - Depo. K. Domer pp. 112:16-
113:8; Exh. “T” - Depo. R. Benedetto, p. 93:14-
18.
49. Comcast noted that the Public Utilities
Commission requires the utilities to inform
each other if they find another utilities’ service
drops that are down (see below), and AT&T
never informed Comcast that any of its service
drops were down.
49. Exh. “U” - Depo. J. Leto pp. 194:22-195:25.
50. Comceast’s employees have testified that
the location where the service drops can be
seen coming from the utility pole in Mr.
Twomey’s pictures indicates they are AT&T
service drops, not Comcast drops.
50. Exh. “T”- Depo. R. Benedetto pp. 130:10-
131:1, Exh. “S” - Depo. K. Domer pp 102:13-24.
51. Comcasts’ employees further claim that
close-up views of the downed cables in Mr.
Twomey’s photographs reveal that the service
drop on the ground next to Ms. Esborg is a
51. Exh. “S” - Depo. K. Domer pp.100:13-23,
101:5-11 and Exh. “T” - Depo. R. Benedetto pp.
124:7-9, 127:4-14.
26
Plaintiff's Separate Statement In Supvort of Opposition to Pacific Bell’s MSJ and MSArectangular, AT&T service drop.
PACIFIC BELL’S NEGLIGENT REPAIR, MAINTENANCE, SUPERVISION, CONTOL,
INSPECTION, AND/OR MONITORING OF ITS SERVICE DROPS.
PLAINTIFF'S FACTS
EVIDENCE IN SUPPORT OF PLAINTIFF’S
FACTS
52. AT&T produced a senior technical project
manager from its construction and engineering
department, Joshua Mathisen, to testify on its
behalf about the installation, inspection,
maintenance, and repairs of service drops to the
house at 634 23 Ave. in San Francisco. He
was also produced to testify on AT&T’s behalf
about its policies and procedures for inspecting
and maintaining utility poles, service drops, and
fasteners on service drops in San Francisco.
52. Exh. “M” - Depo J. Mathisen pp. 21:16-
22:6 & 87:5-88:9,
53. The minimum legally-allowed clearance for
utility service drops over the center
Preview
Christopher B. Dolan, Esq. (SBN 165358) Quinton B. Cutlip, Esq. (SBN 168030) Megan R. Irish, Esq. (271687) DOLAN LAW FIRM, PC 1438 Market Street San Francisco, California 94102 Tel: (415) 421-2800 Fax: (415) 421-2830 Attorneys for Plaintiff KARA L. ESBORG ELECTRONICALLY FILED Superior Court of Catifornia, County of Sar Francisco 07/18/2018 Clerk of the Court BY:ANNA TORRES Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) 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. LUL, individually and as trustees of their revocable trust; and DOES 1 to 100. Defendants. AND RELATED CROSS-ACTIONS. SBE SS SS SH YH HS SH SH SH SH SH SH SHH HL Case No. CGC-16-553614 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF HER OPPOSITION TO DEFENDANT PACIFIC BELL TELEPHONE COMPANY’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION. Reservation No. 05090801-01 Date: August 1, 2018 Time: 9:30 a.m. Dept.: 302 Action Filed: August 11, 2016 Trial Date: August 27, 2018 Plaintiff submits the following statement of disputed material facts in support of her opposition to Defendant Pacific Bell Telephone Company’s motion for summary judgment / summary adjudication: 1 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSADefendant’s Allegedly Undisputed Material Facts and Supporting Evidence Plaintiff’s Response and Supporting Evidence 1. Plaintiff alleges she made contact with one or more low-hanging utility wires while riding her bicycle on the 600 block of 23™ Avenue, San Francisco at about 10:30 am on November 23, 2015, and fell to the street. Plaintiff's Complaint. 1. Undisputed 2. Marc Twomey was driving his car north on 23™ Avenue about 15 to 20 feet behind Plaintiff as she rode her bicycle, and saw a low-hanging cable catch Plaintiff in the neck and flip her in the air. Declaration of Marc Twomey, 1:25— 2:2, attached as Exhibit A to the Evidence. 2. Undisputed that Mare Twomey was riding behind Plaintiff and saw her being knocked off her bicycle by a low hanging cable. Disputed that Marc Twomey was 15 to 20 feet behind Plaintiff. During his deposition, he corrected the declaration Pacific Bell’s attorney drafted for him and testified he was about three car lengths behind the bicyclist. (Exh. “K” - Depo of M. Twomey pp. 31:18-20) 3. Twomey stopped his car just short of the low-hanging cable, assisted Plaintiff as she lay in the street and called 911 and took photos. Twomey Dec., 2:2-13, and 9 photos attached as Exhibit C to the Evidence (first 9 photos). 3. Undisputed that Mr. Twomey stopped his car just short of a low hanging wire. Disputed to the extent that this alleged fact is intended to indicate that the low-hanging cable Mr. Twomey stopped his car behind was the one that pulled Plaintiff off of her bicycle. Mr. Twomey’s May 25, 2018 declaration confirmed that he believes the wire Plaintiff struck is the wire that was down on the street, not the wire that apparently did not break and was still hanging just above the street. (Exh. “B” - 5/25/18 Dec. M. Twomey, paras. 4-7.) Mr. Twomey confirmed in deposition, that Pacific Bell’s attorney had given him the information that the wire Plaintiff struck did not break, because at the time he did not actually recall which wire it was that Plaintiff struck. Upon going back to the scene with this photographs, however, he remembered that the line that 2 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAPlaintiff struck was the line that was lying in the street next to her and not the line that was still hanging slightly above the street. “Mr. Mullen: And why did you tell me, as set forth in this declaration, that there was only one line hanging across the street? A: As I told you in the beginning when we spoke, I didn’t really recall what had happened that day, and I was going vaguely on what —I told you that.” (Exh. “K” - Depo. M. Twomey p. 35:9-14.) Mr. Twomey further explained that the information included in his initial declaration, where he said that the line Plaintiff struck did not break, had actually come from Mr. Mullen: “Mr. Mullen: Okay. And you said in your [May 25, 2018] statement: ‘I assumed that he knew what he was talking about.’ A: Correct. Mr. Mullen: So what were you referring to as to what I was talking about — A: Details — details to the incident — Mr. Mullen: Okay. A: Of her hitting the line and things like that. Mr. Mullen: I didn’t tell you what happened; I asked you what happened, right? A: I said I didn’t remember. Mr. Mullen: Okay. Is there something that you assumed that I knew what I was talking about that you don’t believe I knew at the time? A: Correct. 3 Plaintiff's Separate Statement In Supvort of Opposition to Pacific Bell’s MSJ and MSAMr. Mullen: What? A: You-— you brought it up that she had — she hit the line and you asked me about the line breaking. I said I don’t remember, and you, like, well, the line didn’t break and I’m like, I don’t remember — your like — you said that and I was like, sure, and then we talked about the house and I said I’m not sure, but I think it’s a light house with dark trim. Mr. Mullen: Okay. If you said those things to me, as you just described them, then why didn’t you make corrections to the declaration about those things? ... I mean, why did you end up signing the declaration? I did ask you to correct any inaccuracies — A: I-again, I assumed everything that we talked about was correct, so I signed it. I made the one correction that we talked about earlier. Mr. Mullen: but I didn’t tell you that there was only one line across the street — A: Yes, you told me that the line didn’t break. Mr. Mullen: No, actually I asked you whether the line broke, didn’t I? A: You said, I didn’t know, but you said: ‘It didn’t break did it?’ And you asked me again. Mr. Mullen: I’m not going to argue with you. Mr. Mullen: Is there anything else that your referring to here by details I provided you? A: Again, you spoke of the incident, and I assumed you knew what you were talking about because you’re like the lady hit the line and I’m calling, you know, to get your behalf declaration from it, so I assumed you knew. Mr. Mullen: Is there anything else that you were referring to by your statement you assumed I knew what I was talking about? A: You —you spoke on it as if everything was — again, I didn’t remember what had happened, you came to me 4 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAand then you asked me the questions and I said I didn’t remember. Then you’re like, Well, the line didn’t break — well, you know, so I said okay, it didn’t break. (Exh. “K” - Depo. M. Twomey, pp. 97:23-101:20, emphasis added.) 4, Eduardo Rodriguez and his wife Ariel arrived at the scene driving south on 23 Avenue. Declaration of Eduardo Rodriguez, 1:25-27, attached as Exhibit B to the Evidence, 4. Undisputed. 5. Eduardo assisted Plaintiff while Ariel called 911 and took photos. Rodriguez Dec., 2:1-6, and 3 photos attached as Exhibit C to the Evidence (last 3 photos). 5. Undisputed. 6. Plaintiff made contact with only one cable. Twomey Dec., 2:1-3, 7-8, 13-15 and Ex. C photos numbered ESBORG 000004, 000005, 0000011 and 000012. 6. Undisputed. 7. The cable Plaintiff ran into did not snap or break and remained hanging low across the street after the accident. Twomey Dec., 2:2-3, 13-15 and Ex. C photos numbered ESBORG 000004, 000005, 0000011 and 000012; Rodriguez Dec. 2:7-9 and Ex. C photo ESBORG 000014. 7. Disputed. The declaration of Eduardo Rodriguez does not say anything that supports this alleged fact. Witness Marc Twomey has explained that when he spoke with AT&T’s attorney about a declaration, he told the attorney that he had not been back to the scene of the collision and did not recall off hand whether the wire or cable that Plaintiff struck broke or not. The AT&T attorney told Mr. Twomey that the wire had not broken. Mr. Twomey assumed the attorney was correct and signed a declaration that included what the AT&T attomey had told him. 5 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAAs Mr. Twomey explained in deposition: “Mr. Mullen: And why did you tell me, as set forth in this declaration, that there was only one line hanging across the street? A: As I told you in the beginning when we spoke, I didn’t really recall what had happened that day, and I was going vaguely on what — I told you that.” (Exh. “K” - Depo. M. Twomey p. 35:9-14.) Mr. Twomey explained that the information included in his initial declaration, where he said that the line Plaintiff struck did not break, had actually come from Mr. Mullen: “Mr. Mullen: Okay. And you said in your [May 25, 2018] statement: ‘I assumed that he knew what he was talking about.” A: Correct. Mr. Mullen: So what were you referring to as to what I was talking about — A: Details — details to the incident — Mr. Mullen: Okay. A: Ofher hitting the line and things like that. Mr. Mullen: I didn’t tell you what happened; I asked you what happened, right? A: I said I didn’t remember. Mr. Mullen: Okay. Is there something that you assumed that I knew what I was talking about that you don’t believe I knew at the time? A: Correct. Mr. Mullen: What? 6 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAA: You — you brought it up that she had — she hit the line and you asked me about the line breaking. Y said I don’t remember, and you, like, well, the line didn’t break and I’m like, I don’t remember — your like — you said that and I was like, sure, and then we talked about the house and I said I’m not sure, but I think it’s a light house with dark trim. Mr. Mullen: Okay. If you said those things to me, as you just described them, then why didn’t you make corrections to the declaration about those things? ... I mean, why did you end up signing the declaration? I did ask you to correct any inaccuracies — A: I—again, I assumed everything that we talked about was correct, so I signed it. I made the one correction that we talked about earlier. Mr. Mullen: but I didn’t tell you that there was only one line across the street — A: Yes, you told me that the line didn’t break. Mr. Mullen: No, actually I asked you whether the line broke, didn’t I? A: You said, I didn’t know, but you said: ‘It didn’t break did it?’ And you asked me again. Mr. Mullen: I’m not going to argue with you. Mr. Mullen: Is there anything else that your referring to here by details I provided you? A: Again, you spoke of the incident, and I assumed you knew what you were talking about because you’re like the lady hit the line and I’m calling, you know, to get your behalf declaration from it, so I assumed you knew. Mr. Mullen: Is there anything else that you were referring to by your statement you assumed I knew what I was talking about? A: You — you spoke on it as if everything was — again, I didn’t remember what had happened, you came to me and then you asked me the questions and I said I didn’t 7 Plaintiffs Sevarate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA.remember. Then you’re like, Well, the line didn’t break — well, you know, so I said okay, it didn’t break. (Exh. “K” - Depo. M. Twomey, pp. 97:23-101:20, emphasis added.) After subsequently going with Plaintiff's attorney to the scene and after reviewing his photographs at the scene, Mr. Twomey’s recollection was refreshed that the cable or wire the bicyclist struck had actually broken or become detached and was the wire/cable that was lying in the street next to the bicyclist. As Mr. Twomey explained in his May 25, 2018 declaration: “When I got out of my car, I noticed that there were three wires down. The wire that caught the lady by her neck and pulled her off of her bicycle is the one that was lying on the ground in my pictures. When I reviewed my pictures, while I was standing on 23 Avenue looking at the scene the other day, I recalled that I had photographed the path of the wire that hurt the lady, from the pole to its end. The photograph on page 1.1 shows the pole with wires hanging down, including the wire that is hanging over the back of a green car. The photograph on page 1.3 traces the wire that caught the bicyclist as it hung across the back of a green car and was lying on the ground. The photograph on page 1.4 traces the same wire along the ground and up to the bicyclist’s knees. The photograph on page 1.5 traces the wire past the bicyclist to the end that was lying on the ground. The photograph on page 1.6 shows the same wire next to the bicyclist. The wire that pulled the lady off her bicycle is the wire that is shoe in the photographs on pages 1.3, 1.4. 1.5 and 1.6 of Exhibit “1.” (Exh. “B” - Dec. of M. Twomey (dated May 25, 2018) paras. 2-7.) 8. Two other utility lines were hanging loose from a nearby telephone pole but did not span across the street. One lay downed in the street. 8. Undisputed that three wires were down. Mr. Twomey testified and his photographs show that after Ms. Esborg was injured one wire was lying in the street near her. A second wire was hanging low across the street, just a couple of feet above the ground. A third wire was hanging down by the telephone pole. 8 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSATwomey Dec., 2:6—-8, 15-17 and Ex. C photos numbered ESBORG 000004 and 000006 through 000009; Rodriguez Dec. 1:27-28, 2:7-9 and Ex. C photo ESBORG 000014. Disputed to the extent that the alleged fact implies that the wire that was lying down in the street was not the wire that pulled Plaintiff off of her bicycle. (See disputed facts 6 & 7.) 9. Firefighters arrived and cut or removed the low-hanging cable from a house and spooled and hung it on a telephone pole across the street. Twomey Dec., 2:19-21; Rodriguez Dec., 2:11-12. 9. Undisputed that firefighters arrived at the scene and addressed the cables and hung at least one of them back on the telephone pole. Disputed that the low-hanging cable had been attached to a specific house. 1) According to Mr. Twomey’ May 25, 2018 declaration: “10. On the day the lady was injured, I, frankly, did not pay too much attention to where the three wires had been attached on the houses across the street from the utility pole. When the incident was occurring, I was focused on the lady as she was being pulled off her bicycle and falling to the ground. Later, when I was taking photographs, I did not attempt to trace where the wire that was still suspended low over the street was attached on the east side of the street. (See my photographs on Exhibit 1, pages 1.1, 1.2. 1.8, and 1.9.) 11. Having now been to the scene with my photographs, I cannot say whether the wire that was still suspended just above the street in my photographs was hanging from the house that had dark trim at 640 23™ Avenue. It could have been originally attached to any of the three houses at 630 23" Avenue, 634 23™ Avenue, or 640 23" Avenue. When I first noticed it after the incident, it may have been hanging off the house at 634 23" Avenue or hanging off the house at 640 23rdAvenue.” (Exh. “B” - Dec. M. Twomey (May 25, 2018) paragraphs 10 & 11.) 2) During Mr. Twomey’s deposition, counsel for 9 Plaintiff's Separate Statement In Suovort of Opposition to Pacific Bell’s MSJ and MSAPacific Bell played his 911 call, wherein Mr. Twomey told the 911 operator that the wire/cable, that he thought was a power cable, was hanging from a bush. Mr. Twomey could not, however, recall during his deposition which bush from a photograph he was shown by Pacific Bell’s counsel. (Exh. “K” - Depo. M. Twomey pp. 68:20-75:18.) 10. _A firefighter who removed the low-hanging cable from the house said it was a Comcast cable. Twomey Dec., 2:22-23; Deposition. of Kara Esborg at 154:19-155:16 and 159:21-160:1 and Ex. 4 thereto, attached as Exhibit F to the Evidence. 10. Objections: Double and triple hearsay — The firefighter allegedly made the comment to Mare Twomey, who told Kara Esborg what he had hear. No foundation. (Please see Plaintiffs objections to Defendant’s evidence.) Undisputed that an unnamed firefighter said it was a Comcast cable. Disputed whether it was a Comcast or Pacific Bell cable. As Mr. Twomey explained in his May 25, 2018 declaration: “12. I want to clarify something else in the declaration that I signed for the gentleman at AT&T. I do not know who owned any of the three wires that were hanging off the utility pole. The firefighter who came to the scene cut the wire that was still hanging across the street. She said it was a Comcast wire. I do not know what information she used to make that statement. I just heard her say it. ...” €E Exh. “B” - Dec. M. Twomey (May 25, 2018) para. 12.) 11. The low-hanging cable had been attached to a house light in color with dark trim. Twomey Dec., 2:23. 11. Disputed that Mare Twomey actually knew which house the low-hanging cable had been attached to before the collision. 1) Mr. Twomey has confirmed that the wire that caught Plaintiffs neck and pulled her off her bicycle was the wire that was lying in the street, not the wire that was low-hanging across the street after the incident. (Exh. “B” - Dec. of M. Twomey (May 25, 2018) paras 2-7.) 10 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA2) According to Mr. Twomey’ May 25, 2018 declaration: “10. On the day the lady was injured, I, frankly, did not pay too much attention to where the three wires had been attached on the houses across the street from the utility pole. When the incident was occurring, I was focused on the lady as she was being pulled off her bicycle and falling to the ground, Later, when I was taking photographs, I did not attempt to trace where the wire that was still suspended low over the street was attached on the east side of the street. (See my photographs on Exhibit 1, pages 1.1, 1.2. 1.8, and 1.9.) 11. Having now been to the scene with my photographs, I cannot say whether the wire that was still suspended just above the street in my photographs was hanging from the house that had dark trim at 640 23" Avenue. It could have been originally attached to any of the three houses at 630 23" Avenue, 634 23" Avenue, or 640 23" Avenue. When I first noticed it after the incident, it may have been hanging off the house at 634 23 Avenue or hanging off the house at 640 23rdAvenue.” (Exh. “B” - Dec. M. Twomey (May 25, 2018) paragraphs 10 & 11.) 3) Mr. Twomey explained during his deposition that he really does not know where the wire that was still hanging a couple of feet above the ground had been attached. He explained that his initial declaration was not correct: “Mr. Mullen: ‘The next sentence in paragraph four states: ‘The house the cable had been attached to was light colored with dark trim.’ Is that a correct statement? A: No. Mr. Mullen: The line — the line that she 11 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAremoved from the house, what house did she remove it from? A: I don’t remember. Mr. Mullen: Okay. What leads you to think that what you told me - what appears in the April 24, 2018 declaration, is not correct? A: Seeing the houses together, within that area, we had nothing to do with that house. It was nothing — it was just a house I guess I recall because of the coloring, but the line was not pulled from there. I know for a fact it wasn’t - I’m not sure which house it came off of, if it was the next one over, or the other one, but it wasn’t that house because the house was behind — the house is behind the tree and then — this — number ~is that 6? I think that’s 6, I’m sorry, I don’t have my glasses. Mr. Mullen: Why don’t we look at Exhibit 5, this one? Exhibit 5 shows the line that was still hanging across the street; right? A: Correct. From this picture I can’t tell which house, again, its on. Mr. Mullen: So you haven’t seen any photos that show what house that line was attached to; right? A: Correct. Mr. Mullen: You saw the firefighter, I believe your words were: ‘Jerk it form the house” -- A: Correct. Mr. Mullen: -- right, is what you’re saying now? You don’t reall which house the firefighter jerked it from? A: Correct. Mr. Mullen: Do you think the line was attached 12 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA4) 5) 6) 1 to the house next to the light colored house with dark trim? A: I don’t know. I don’t know if it was — I don’t know if it was on this one or on that one. (Exh. “K” - Depo. M. Twomey, pp. 59:12- 63:21.) During Mr. Twomey’s deposition, counsel for Pacific Bell played his 911 call, wherein Mr. Twomey told the 911 operator that the wire/cable, that he thought was a power cable, was hanging from a bush. Mr. Twomey could not, however, recall during his deposition which bush from a photograph he was shown by Pacific Bell’s counsel. (Exh. “K” - Depo. M. Twomey pp. 68:20- 75:18.) The light colored house with the dark trim is 640 23" Avenue. The owner testified in deposition that he went outside while Ms. Esborg was on the ground and provided ice to be placed on her head. He does not recall any of his own service drops being down or losing any utility services. He also does not recall having Comcast or any other utility come out to replace or repair any wires on his house. (Exh. “L” Depo. M. Brozinsky pp. 53:7-9, 66:17-67:3 and 84:11-13.) As he did to Marc Twomey, AT&T’s attorney contacted Mr. Brozinsky and tried to get him to sign a declaration saying his Comcast service drop was down, but when Mr. Brozinsky tried to correct the declaration, AT&T’s Counsel dropped the matter. (Exh. “L” - Depo. M. Brozinsky pp. 97:22-98:12.) Comcast claims it has no record of making service calls to the 600 block of 23" Ave. in November or December 2015. (Exh. “S” - Depo. K. Domer pp. 112:16-113:8; 13 Plaintiff's Sevarate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA.Exh. “T” - Depo. R. Benedetto, p. 93:14-18; and Exh. “U” - Depo. J. Leto pp. 82:6-83:3 & 83:22- 84:4.) 12. The address of the house to which the low-hanging cable had been attached is 640 23" Avenue. Declaration of Robert B. Mullen, 1:25-2:3 and Ex. 1 thereto, attached as Exhibit D to the Evidence; Twomey Dec., 2:23. 12. Disputed that Marc Twomey actually knew which house the low-hanging cable had been attached to before the collision. 1) Mr. Twomey has confirmed that the wire that caught Plaintiffs neck and pulled her off her bicycle was the wire that was lying in the street, not the wire that was low-hanging across the street after the incident. (Exh. “B” - Dec. of M. Twomey (May 25, 2018) paras 2-7.) 2) According to Mr. Twomey’ May 25, 2018 declaration: “10. On the day the lady was injured, I, frankly, did not pay too much attention to where the three wires had been attached on the houses across the street from the utility pole. When the incident ‘was occurring, I was focused on the lady as she was being pulled off her bicycle and falling to the ground. Later, when I was taking photographs, I did not attempt to trace where the wire that was still suspended low over the street was attached on the east side of the street. (See my photographs on Exhibit 1, pages 1.1, 1.2. 1.8, and 1.9.) 11. Having now been to the scene with my photographs, I cannot say whether the wire that was still suspended just above the street in my photographs was hanging from the house that had dark trim at 640 23™ Avenue. It could have been originally attached to any of the three houses at 630 23™ Avenue, 634 23™ Avenue, or 640 23" Avenue. When I first noticed it after the incident, it may have been hanging off the house at 634 23 Avenue or hanging off the house at 640 23rdAvenue.” (Exh. “B” - Dec. M. Twomey (May 25, 2018) paragraphs 10 & 11.) 14 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA3) Mr. Twomey explained during his deposition that he really does not know where the wire that was still hanging a couple of feet above the ground had been attached. He explained that his initial declaration was not correct: “Mr. Mullen: ‘The next sentence in paragraph four states: ‘The house the cable had been attached to was light colored with dark trim.’ Is that a correct statement? A: No. Mr. Mullen: The line ~ the line that she removed from the house, what house did she remove it from? A: I don’t remember. Mr. Mullen: Okay. What leads you to think that what you told me - what appears in the April 24, 2018 declaration, is not correct? 7 A: Seeing the houses together, within that area, we had nothing to do with that house. It was nothing — it was just a house I guess I recall because of the coloring, but the line was not pulled from there. I know for a fact it wasn’t - T’m not sure which house it came off of, if it was the next one over, or the other one, but it wasn’t that house because the house was behind — the house is behind the tree and then — this — number —is that 6? I think that’s 6, I’m sorry, I don’t have my glasses. Mr. Mullen: Why don’t we look at Exhibit 5, this one? Exhibit 5 shows the line that was still hanging across the street; right? A: Correct. From this picture I can’t tell which house, again, its on. Mr. Mullen: So you haven’t seen any photos that show what house that line was attached to; right? 15 Plaintiff's Separate Statement In Supvort of Opposition to Pacific Bell’s MSJ and MSAA: Correct. Mr. Mullen: You saw the firefighter, I believe your words were: ‘Jerk it form the house” -- A: Correct. Mr. Mullen: -- right, is what you’re saying now? You don’t reall which house the firefighter jetked it from? A: Correct. Mr. Mullen: Do you think the line was attached to the house next to the light colored house with dark trim? A: Idon’t know. I don’t know if it was — I don’t know if it was on this one or on that one. (Exh. “K” - Depo. M. Twomey, pp. 59:12- 63:21.) 4) During Mr. Twomey’s deposition, counsel for Pacific Bell played his 911 call, wherein Mr. Twomey told the 911 operator that the wire/cable, that he thought was a power cable, was hanging from a bush. Mr. Twomey could not, however, recall during his deposition which bush from a photograph he was shown by Pacific Bell’s counsel. (Exh. “K” - Depo. M. Twomey pp. 68:20-75:18.) 5) The light colored house with the dark trim is 640 23" Avenue. The owner testified in deposition that he went outside while Ms. Esborg was on the ground and provided ice to be placed on her head. He does not recall any of his own service drops being down or losing any utility services. He also does not recall having Comeast or any other utility come out to replace or repair any wires on his house. 16 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA(Exh. “L” - Depo. M. Brozinsky pp. 53:7-9, 66:17-67:3 and 84:11-13.) 6) As he did to Marc Twomey, AT&T’s attomey contacted Mr. Brozinsky and tried to get him to sign a declaration saying his Comcast service drop was down, but when Mr. Brozinsky tried to correct the declaration, AT&T’s Counsel dropped the matter. (Exh. “L” - Depo. M. Brozinsky pp. 97:22-98:12.) 7) Comcast claims it has no record of making service calls to the 600 block of 23 Ave. in November or December 2015. (Exh. “S” - Depo. K. Domer pp. 112:16-113:8; Exh. “T” - Depo. R. Benedetto, p. 93:14-18; and Exh. “U” - Depo. J. Leto pp. 82:6-83:3 & 83:22- 84:4.) 13. Prior to the accident, Pacific Bell Telephone Company did not receive any notice that a line of any kind was downed or low-hanging on the 600 block of 23 Avenue. Declaration of Joshua Mathisen, 2:4- 13 and 20-22, attached as Exhibit E to the Evidence. 13. Undisputed that Plaintiff has no evidence that Pacific Bell had notice that the service drops were down before Plaintiff was injured. Disputed to the extent that this alleged fact has any bearing on this case. As explained in detail below, the evidence here is that Pacific Bell negligently installed, monitored, and/or maintained the anchor that held the service drops to the house, thus allowing them to fall. The issue is not whether Pacific Bell had notice after the service drops fell. 1) Low hanging service drops are well known in the cable TV and communications industry to be very dangerous safety hazards. They are known to cause injuries to pedestrians, bicyclists, motorcyclists, snowmobile drivers, and others. General Order 95 explicitly requires communications service drops that extend over roadways to be no lower than 18 feet above the center of urban roadways and no lower than 16 feet above the curb of a roadway. California Vehicle Code § 35250 states that the tallest vehicle allowed in California may only be 14 feet, three inches high (double decker buses only). The minimum height requirements in 17 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAG.O, 95 are specifically intended to prevent vehicles from coming into contact with any overhead line, including service drops, and bringing them down where they can hurt people and/or cause property damage. (Dec. J. Kramer, para. 23) 2) “... communication systems shall be designed, constructed, and maintained for their intended use, regard being given to the conditions under which they are to be operated, to enable the 3) 4) furnishing of safe, proper, and adequate service.” (G.O. 95, Rule 31, § 31.1, emphasis added.) In order to maintain the required minimum 18 foot height of service drops above the centerline of roadways and prevent injuries, the entirety of the service drops from end to end must be regularly inspected and, as required, repaired. (Dec. J. Kramer, para. 24) Baring natural disasters, third-party accidents that damage utility poles, or negligence on the part of someone working on a house or building (none of which appear to apply in this matter), if a service drop is struck by a vehicle on a city street, the drop was either negligently allowed to fall too low across the roadway because of improper maintenance, or the drop was negligently initially installed too low above the roadway. Under either scenario, the drop could have not been reasonably or safely installed or adequately inspected and maintained. (Dec. J. Kramer, para. 25.) It is inadequate, not reasonable, and quite dangerous for communication companies that own service drops to only check the end of a service drop that is attached to a utility pole and the then existing height of the wire. Reasonable, proactive preventive maintenance, as well as the minimum inspection and maintenance requirements mandated by General Order 95, demand that companies with communications service drops inspect the drops from end-to-end to determine whether the attachments, anchors, and materials the anchors are affixed to are not damaged or degraded so that the height of the cables above ground meet the minimum safety 18 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSArequirements in G.O. 95. Proactive inspections and preventive maintenance are required to prevent service drops from falling. It is too late once service drops have fallen and created safety hazards across streets, sidewalks, driveways, etc. The purpose and goal of General Order 95 is to prevent injuries and damage; not simply to guide those obligated to follow its rules to respond after an injury or damage has occurred. (Dec. J. Kramer, para. 31.) 14. The first time Pacific Bell received any notice of a problem near the location of the accident was when a Pacific Bell customer living at 634 23" Avenue called, at about 8:20 in the evening after the accident, and reported that they had lost their internet connection. Mathisen Dec., 2:14-16. 14. Undisputed that Pacific Bell received notice on the evening of November 23, 2015 that its service was out to its customer at 634 23™ Avenue. Disputed to the extent that this alleged fact has any bearing on this case. As explained in detail below, the evidence here is that Pacific Bell negligently installed, monitored, and/or maintained the anchor that held the service drops to the house, thus allowing them to fall. The issue is not whether Pacific Bell had notice after the service drops fell. 1) Low hanging service drops are well known in the cable TV and communications industry to be very dangerous safety hazards. They are known to cause injuries to pedestrians, bicyclists, motorcyclists, snowmobile drivers, and others. General Order 95 explicitly requires communications service drops that extend over roadways to be no lower than 18 feet above the center of urban roadways and no lower than 16 feet above the curb of a roadway. California Vehicle Code § 35250 states that the tallest vehicle allowed in California may only be 14 feet, three inches high (double decker buses only). The minimum height requirements in G.O. 95 are specifically intended to prevent vehicles from coming into contact with any overhead line, including service drops, and bringing them down where they can hurt people and/or cause property damage. (Dec. J. Kramer, para. 23) 19 Plaintiff's Separate Statement In Supvort of Opposition to Pacific Bell’s MSJ and MSA2) “... communication systems shall be designed, constructed, and maintained for their intended use, regard being given to the conditions under which they are to be operated, to enable the furnishing of safe, proper, and adequate service.” (G.O. 95, Rule 31, § 31.1, emphasis added.) In order to maintain the required minimum 18 foot height of service drops above the centerline of roadways and prevent injuries, the entirety of the service drops from end to end must be regularly inspected and, as required, repaired. (Dec. J. Kramer, para. 24) 3) Baring natural disasters, third-party accidents that damage utility poles, or negligence on the part of someone working on a house or building (none of which appear to apply in this matter), if a service drop is struck by a vehicle on a city street, the drop was either negligently allowed to fall too low across the roadway because of improper maintenance, or the drop was negligently initially installed too low above the roadway. Under either scenario, the drop could have not been reasonably or safely installed or adequately inspected and maintained. (Dec. J. Kramer, para. 25.) 4) Itis inadequate, not reasonable, and quite dangerous for communication companies that own service drops to only check the end of a service drop that is attached to a utility pole and the then existing height of the wire. Reasonable, proactive preventive maintenance, as well as the minimum inspection and maintenance requirements mandated by General Order 95, demand that companies with communications service drops inspect the drops from end-to-end to determine whether the attachments, anchors, and materials the anchors are affixed to are not damaged or degraded so that the height of the cables above ground meet the minimum safety requirements in G.O. 95. Proactive inspections and preventive maintenance are required to prevent service drops from falling. It is too late once service drops have fallen and created safety hazards across streets, sidewalks, driveways, etc. The purpose and goal of General Order 95 is to prevent injuries and damage; not simply to guide those obligated to follow its rules to respond 20 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAafter an injury or damage has occurred. (Dec. J. Kramer, para. 31.) 15. Pacific Bell’s customer at 634 23" Avenue was its only customer on the 600 block of 23 Avenue requiring service of any kind on or after November 23, 2015, through the end of 2015. Mathisen Dec., 2:22-23. 15. Undisputed. The evidence is that three service drops fell were attached to one anchor that was mounted to the side of 630 23™ Avenue and provided or had previously provided service to 634 23" Avenue. Plaintiff submits the following additional material facts in support of her opposition to Defendant’s motion for summary judgment or in the alternative summary adjudication. PLAINTIFF’S COMPLAINT PLAINTIFF’S FACTS EVIDENCE IN SUPPORT OF PLAINTIFF’S FACTS 16. Plaintiff filed her complaint on August 11, 2016. On June 8, 2017, Plaintiff filed and served a doe amendment identifying defendants AT&T Corp. and AT&T Services. 16, Exh. “A.” 17. Plaintiff's first cause of action for general negligence alleges: “Defendants, and each of them, negligently constructed, installed, maintained, managed, monitored, surveyed, controlled, and/or repaired, the connections on the utility wires such that they ... became disconnected or loosened form the utility pole and/or house/dwelling and hung down low in the roadway where a bicyclist could become entangled in them. Defendants, and each of them, negligently constructed, installed, maintained, managed, monitored, surveyed, controlled, and/or repaired the wires such that they hung down in the roadway where a bicyclist could become entangled in them.” 17. Exh. “A” - Complaint, First Cause of Action, General Negligence. 21 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA.18. Plaintiff's complaint alleges that the defendants, and each of them, were liable for the “negligent repair, maintenance, supervision, control, inspection, and/or monitoring of the utility wires and/or their attaching hardware or mounts.” 18. Exh. “A” - Complaint, Second Cause of Action, Prem.L-5. 19. Plaintiff's complaint also alleges that the defendants, and each of them, are liable based upon product liability theories. 19. Exh. “A” - Complaint, Third Cause of Action, Product Liability. IDENTIFYING SERVICE DROPS PLAINTIFF’S FACTS EVIDENCE IN SUPPORT OF PLAINTIFF’S FACTS 20. “Service drops” or “drops” are the utility lines that run between a utility pole and a home to provide services to the home. 20. Exh. “T” - Depo. R. Benedetto p. 30:18-20 & Exh. “N” - Depo. E. Johnson p. 31:7-9. 20a. Utility Pole 80303, in the 600 block of 23" Ave. in San Francisco, is jointly owned by PG&E and AT&T 20a. Exh. “M” — Depo J. Mathisen p 244:17-22 21, Most AT&T drops are black rectangular shaped wires, of various sizes. AT&T also uses round, black service drops. 21. Exh. “R”- Depo. W. Hester pp. 38:22-25, 39:5-7, & 39:8-16 and Exh. “P” - Depo. J. Sabangan pp. 27:7-21 & 29:18-20. 22. Comcast only uses coaxial cable drops that are black round wires that contain a single copper wire and have with a small 1/16" inch “messenger” wire attached to the side. 22. Exh. “S” - Depo. K. Domer pp. 39:13-40:22 and Exh. “T” - R. Benedetto p. 55:19-24, 23. Communication service drops owned by AT&T and Comcast, that provide internet, telephone, and cable television services, emanate from the lowest level of the utility pole. 23. Exh. “S” - Depo. K. Domer p. 44:19-22. 24, PG&E’s electrical service drops emanate from the top of a utility pole and were not involved in the incident at issue here. 24. Exh. “S” - Depo. K. Domer p. 44:10-18. 25. No companies, other than AT&T and Comcast, had service drops on the subject 25. Dec. J. Kramer, paras. 18-20; Exh. “V” - Depo. K. Codding p. 20:16-25; Exh. “W” - Dec. 22 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA.utility pole at the time Plaintiff was injured. The other cable television provider in San Francisco, Wave Division, has never had any equipment on the utility pole. Sonic.Net, an internet provider, first attached equipment to the pole in 2016 or 2017, long after Plaintiff was injured. of B. Coutch made in support of Wave Division’s Motion for Summary Judgement, para. 3. 25A. Homeowners are not responsible to maintain the service drops that are attached to their homes. 25A Exh. “N” — Depo. E. Johnson pp. 113:25- 117:5 and Exh. “U” - Depo. J. Leto, p. 41:14-22 THE COLLISION THAT INJURED KARA ESBORG PLAINTIFF’S FACTS EVIDENCE IN SUPPORT OF PLAINTIFF’S FACTS 26. On November 23, 2015, 51-year-old Kara Esborg was riding her bicycle on 23 Ave. She was wearing her helmet, gloves, and fluorescent and reflective riding clothes. 26. Exh. “I” - Depo. K. Esborg, Vol. 1, pp. 49:8- 11, 50:9-11, 50:18-51:7, & 53:2-13. 27. As she peddled northbound, at approximately 10 to 12 miles per hour, she suddenly felt something hit her in the face. The next thing she knew, she was lying on the ground. Her head was bleeding, and a man with a phone was next to her. 27. Exh. “I” - Esborg Depo, Vol. 1, 60:19-61:2 & 68:21-69:6.) 28. She only recalls snip-its of time at the scene, in the ambulance, at the San Francisco General Hospital, and at the Kaiser San Francisco Hospital where she was hospitalized for the next four days. Her persistent memories start while she was in a Kaiser brain injury rehabilitation center in Vallejo, California. 28. Exh. “I” - Esborg Depo, Vol. 1, 69:21- 70:10, 71:14-16, 80:18-23, 100:17-101:11 & Exh. “J” - Depo. K. Esborg Vol. 2 pp. 235:20- 236:6. 29. Witness Marc Twomey described what he saw in a May 25, 2018 declaration: On the morning of November 23, 2015, I was driving northbound on 23™ Avenue behind a bicyclist. The bicyclist was driving what I would consider an average speed. Her pace was not fast or slow. She was wearing a bicycle helmet. Suddenly I saw her flip up into the air and land on her back and head on the street. Her bicycle continued forward and 29. Exh. “B” - 5/25/18 Dec. of M. Twomey, para. 6. 23 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSAran into a parked car. A low hanging wire had caught her neck and knocked her off of her bicycle when it became taut. I saw her helmet fly off her head. I stopped, spoke with the woman and called 911. Another gentleman and his wife pulled up from the opposite direction. He said that he was a doctor, and he started tending to the bicyclist. 30. Mr. Twomey took nine photographs at the scene. 30. Exh. “B” - 5/25/18 Dec. of M. Twomey, para. 4 & Exh. 1. 31. When he got out of his car, Mr. Twomey found that three utility wires were down. 31. Exh. “B” - 5/25/18 Dec. of M. Twomey, para. 7. 32. The wire that Ms. Esborg struck can be seen on the ground next to her in some of his photographs. 32. Exh. “B” - 5/25/18 Dec. of M. Twomey, para. 7. 33. Counsel for AT&T had told Mr. Twomey that Ms. Esborg had been knocked off her bicycle by a different service drop that was still hanging about two feet above the roadway. The incorrect information was included in the declaration AT&T relies upon in support of the present motion. 33. Exh. “B” - 5/25/18 Dec. of M. Twomey, paras. 2-3. 34. After going to the scene with his photographs, Mr. Twomey realized that the information defense counsel had suggested was incorrect and confirmed that the wire the bicyclist struck became disconnected and is the wire that is lying on the street next to her body. He corrected the misinformation in his May 25, 2018 declaration and in a May 31, 2018 deposition. 34. Exh. “B” - 5/25/18 Dec. of M. Twomey, paras. 2, 3, 4, 5, & 7 and Exh. “K” - Depo. M. Twomey, pp. 49:2-17; 50:5-24; and 97:23- 101:20. 35. Mr. Twomey also confirmed that he did not know which house the wire that was still suspended two feet above the roadway had been attached. 35. Exh. “B” - 5/25/18 Dec. of M. Twomey, paras. 8, 9, 10, & 11 and Exh. “K” - Depo. M. Twomey, pp. 59:12-63:21 & 68:20-75:22. THREE SERVICE DROPS FELL THAT HAD BEEN ATTACHED TO AN ANCHOR ON THE SOUTH WALL OF 630 23°” AVENUE AND HAD SERVICED 634 23" AVENUE. PLAINTIFF’S FACTS EVIDENCE IN SUPPORT OF PLAINTIFF’S FACTS 36. On the evening of November 23, 2015, the resident of 634 23 Ave. complained to 36. Defense Dec. J. Mathisen para. 4. 24 Plaintiff's Separate Statement In Supvort of Opposition to Pacific Bell’s MSJ and MSAAT&T that her internet service was out. 37. The service drops for 634 23rd Ave. were strung from a utility pole to an anchor on the side of the three story house at 630 23" Ave. and then down to provide service to the two story house at 634 23" Ave. 37. Exh, “D.1”-“D.5” - Street View Photographs 38. On November 24, 2015, AT&T sent a technician to 634 23" Ave. to determine why the customer’s internet was not working. According to the technician’s report: “It appears some drops have being [sic] knocked down.” 38. Exh. “O” - Nov. 24. 2015 Job Detail Report and Exh. “N” - Depo. E. Johnson pp. 105:16- 107:2 & 107:19-109:25. 39. On November 26, 2015, two AT&T technicians ran a new service drop from utility pole 80303 to the higher clip on the side of the house at 630 23™ Ave., and down to 634 23™ Ave. They noted in their service report, “According to cux neighbor drop was hanging too low, person on a bike hit drop and flipped over, fire fighters cut drop » 39. Exh, “P” - Depo. Julius Sabangan, pp. 87:14-21, 88:6-18; Exh. “R” - Depo. W. Hester pp. 52:22-60:1; and Exh. “Q” - Nov. 26, 2015 Job Detail Report. 40. AT&T recently admitted that it does not contend that anyone other than AT&T installed the equipment used to affix the missing service drops to 630 23 Avenue. 40. Exh. “X” - AT&T Responses to Special Interrogatories 7 - 10. 41. AT&T does not have any documentation about when the missing anchor was installed that held the three service drop(s) or even when any of the service drop(s) were installed. 41. Exh. “M” - Depo. J. Mathisen pp. 100:1- 101:15 & 113:12-114:24; and Exh, “X” - AT&T’s responses to special interrogatories 11- 13. 42. AT&T confirmed that its service drop that was attached to 630 23" Ave. and serviced 634 23" Ave, was never inspected before November 23, 2015. 42. Exh. “M” - Depo. J. Mathisen, pp. 104:12- 106:20. 43. Three service drops came down from a single anchor that had been affixed to the south wall of the house at 630 23™ Avenue. The service drops had serviced the house at 634 23 Avenue. 43. Dec. of J. Kramer, paras. 13-16; Exhibits “D1” —“D.5” - 8/14, 11/15, 2/16, and 3/16 Street View photos; and Exh. “M” - Depo. J. Mathisen, pp. 139:2-141:23.) 25 Plaintiff's Separate Statement In Support of Opposition to Pacific Bell’s MSJ and MSA.44. Even though AT&T only had to replace one drop to restore internet service to 634 23™ Ave., it admits that the other two drops may have been, disconnected AT&T service drops. It also claims the other two downed drops may have been service drops from a cable television provider. 44. Exh. “M” - Depo. J. Mathisen, pp. 139:2- 141:23. 45. A recent inspection of the roof at 630 23" Ave. found disconnected old AT&T telephone drops lying on the roof of 634 23" Ave. 45. Dec. of C. Perry paras. 5 & 6; Dec of J. Kramer para. 36; and Exhs. “G.1” —“G.3” - Photos of the wires. 46. AT&T has very recently claimed in written discovery responses that even if its drops for 634 23" Ave, fell, Plaintiff struck a Comeast service drop that had also fallen from 640 23" Ave. 46. Exh. “X” - AT&T responses to special interrogatories 7-10. 47. Comcast claims it only installs one service drop per home and that its service drops for 630 and 634 23 Ave. were attached individually to the western side faces of those buildings, not to the southern wall of 630 23™ Ave., above 634 23" Ave, 47. Exh. “S” - Depo. K. Domer pp. 74:9-20, 85:23-86:11, 89:7-24, 91:7-17, 106:1-107:11 and Exh. “T” - Depo. R. Benedetto, pp. 77:13-78:9 & 79:18-80:1, & 80:2-5.) 48. According to Comcast, it never received any requests to repair disrupted services to 630, 634, or 640 23" Ave. between November 1, 2015 and December 31, 2015. 48. Exh. “S” - Depo. K. Domer pp. 112:16- 113:8; Exh. “T” - Depo. R. Benedetto, p. 93:14- 18. 49. Comcast noted that the Public Utilities Commission requires the utilities to inform each other if they find another utilities’ service drops that are down (see below), and AT&T never informed Comcast that any of its service drops were down. 49. Exh. “U” - Depo. J. Leto pp. 194:22-195:25. 50. Comceast’s employees have testified that the location where the service drops can be seen coming from the utility pole in Mr. Twomey’s pictures indicates they are AT&T service drops, not Comcast drops. 50. Exh. “T”- Depo. R. Benedetto pp. 130:10- 131:1, Exh. “S” - Depo. K. Domer pp 102:13-24. 51. Comcasts’ employees further claim that close-up views of the downed cables in Mr. Twomey’s photographs reveal that the service drop on the ground next to Ms. Esborg is a 51. Exh. “S” - Depo. K. Domer pp.100:13-23, 101:5-11 and Exh. “T” - Depo. R. Benedetto pp. 124:7-9, 127:4-14. 26 Plaintiff's Separate Statement In Supvort of Opposition to Pacific Bell’s MSJ and MSArectangular, AT&T service drop. PACIFIC BELL’S NEGLIGENT REPAIR, MAINTENANCE, SUPERVISION, CONTOL, INSPECTION, AND/OR MONITORING OF ITS SERVICE DROPS. PLAINTIFF'S FACTS EVIDENCE IN SUPPORT OF PLAINTIFF’S FACTS 52. AT&T produced a senior technical project manager from its construction and engineering department, Joshua Mathisen, to testify on its behalf about the installation, inspection, maintenance, and repairs of service drops to the house at 634 23 Ave. in San Francisco. He was also produced to testify on AT&T’s behalf about its policies and procedures for inspecting and maintaining utility poles, service drops, and fasteners on service drops in San Francisco. 52. Exh. “M” - Depo J. Mathisen pp. 21:16- 22:6 & 87:5-88:9, 53. The minimum legally-allowed clearance for utility service drops over the center