Preview
1 Brian J. Ward (SBN 244387)
Erin L. Powers, Esq. (SBN 245148)
2 Jakob Z. Norman, Esq (Admitted Pro Hac Vice)
TRIAL LAWYERS FOR JUSTICE
3 877 South Victoria Avenue, Suite 201
Ventura CA 93003
4 Tel: (310) 855-3727
Fax: (310) 855-3595
5 Email: teamojai@tl4j.com
brianward@tl4j.com
6 erin@tl4j.com
jakob@tl4j.com
7
Taylor Ernst (SBN 277901)
8 Terry Kilpatrick, (SBN 163197)
ERNST LAW GROUP
9 1020 Palm Street
San Luis Obispo, California 93401
10 Tel: (805) 541-0300
te@ernstlawgroup.com
11 tk@ernstlawgroup.com
12 Benjamin I. Siminou (254815)
Jonna D. Lothyan (298650)
13 SINGLETON SCHREIBER, LLP
591 Camino De La Reina, Ste. 1025
14 San Diego, CA 92108
Tel: (619) 704-3288
15 bsiminou@singletonschreiber.com
jlothyan@singletonschreiber.com
16
Attorneys for Plaintiff, KEVIN WRIGHT
17
18 SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA-COOK STREET DIVISION
19
20 KEVIN WRIGHT, CASE NO.: 21CV00925
21 Plaintiff, DECLARATION OF BRIAN J. WARD IN
SUPPORT OF PLAINTIFF’S OPPOSITION
22 v. TO DEFEDANT’S MOTION FOR NEW
TRIAL
23 UNOCAL CORPORATION, a Delaware
corporation; et al., Date: October 31, 2023
24 Time: 8:30 a.m.
Defendants. Dept: SM-2
25 Judge: Hon. James F. Rigali
26
Complaint Filed: 7/08/2021
27 Trial Date: 4/24/2023
28
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DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR NEW TRIAL
1 DECLARATION OF BRIAN J. WARD
2 I, Brian J. Ward , declare and state as follows:
3 1. I am an attorney duly licensed to practice law before all courts of the State of
4 California and am an attorney with Trial Lawyers for Justice, attorneys of record for Plaintiff
5 Kevin Wright. I make this declaration in support of Plaintiff’s Opposition to Defendant Union
6 Oil of California’s Motion for a New Trial. As to those facts stated on information and belief, I
7 am confirmed and believe that they are true. If called to testify, I could and would competently
8 testify to the matters described herein.
9 Exhibits In Support Of Plaintiff’s Opposition:
10 2. Attached as Exhibit A hereto are a true and correct excerpts of the May 9, 2023
11 Transcript of Proceedings.
12 3. Attached as Exhibit B hereto are a true and correct excerpts of the May 10, 2023
13 Transcript of Proceedings.
14 4. Attached as Exhibit C hereto are a true and correct excerpts of the May 19, 2023
15 Transcript of Proceedings.
16 5. Attached as Exhibit D hereto are a true and correct excerpts of the May 5, 2023
17 Transcript of Proceedings.
18 6. Attached as Exhibit E hereto are a true and correct excerpts of the May 8, 2023
19 Transcript of Proceedings.
20 7. Attached as Exhibit F hereto are a true and correct excerpts of the May 15, 2023
21 Transcript of Proceedings.
22 8. Attached as Exhibit G hereto are a true and correct excerpts of the May 16, 2023
23 Transcript of Proceedings.
24 9. Attached as Exhibit H hereto are a true and correct excerpts of the May 18, 2023
25 Transcript of Proceedings.
26 10. Attached as Exhibit I hereto are a true and correct excerpts of the May 22, 2023
27 Transcript of Proceedings.
28
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DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR NEW TRIAL
1 11. Attached as Exhibit J hereto are a true and correct excerpts of the May 23, 2023
2 Transcript of Proceedings.
3 12. Attached as Exhibit K hereto are a true and correct excerpts of the May 24, 2023
4 Transcript of Proceedings.
5 13. Attached as Exhibit L hereto are a true and correct excerpts of the May 25, 2023
6 Transcript of Proceedings.
7 14. Attached as Exhibit M hereto are true and correct excerpts of the May 11, 2023
8 Transcript of Proceedings.
9 15. Attached as Exhibit N hereto are true and correct excerpts of the June 6, 2023
10 Transcript of Proceedings.
11 16. Attached as Exhibit O hereto are true and correct excerpts of the May 26, 2023
12 Transcript of Proceedings.
13 17. Attached as Exhibit P hereto are true and correct excerpts of the June 7, 2023
14 Transcript of Proceedings.
15 18. Attached as Exhibit Q hereto are true and correct excerpts of the May 4, 2023
16 Transcript of Proceedings.
17 Additional Facts and Exhibits re: Plaintiff’s Discovery of Oil and Gas Regulations:
18 19. Attached as Exhibit R hereto are is a true and correct copy of the relevant portions
19 of Plaintiff's First Amended Complaint.
20 20. At the time Plaintiff filed the FAC, Plaintiff was not aware of the regulations that
21 became the subject of Plaintiff’s May 19, 2023 Request for Judicial Notice, including but not
22 limited to section 1776.
23 21. At the time Plaintiff responded to Defendant’s Form Interrogatory 14.1 and other
24 discovery requests Plaintiff was not aware of the regulations that became the subject of Plaintiff’s
25 Request for Judicial Notice made during trial.
26 22. Defendant did not serve Plaintiff with supplemental discovery requests.
27
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DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR NEW TRIAL
1 23. Prior to expert depositions in this matter, Plaintiff's counsel inquired of its experts
2 as to whether any oil and gas regulations applied to the Starfire Sump. None of Plaintiff's experts
3 were able to identify any specific regulations.
4 24. Attached as Exhibit S hereto is a true and correct excerpt of Defendant Union
5 Oil’s response to Plaintiff’s Request for Production of Documents, Set 1.
6 25. Attached as Exhibit T hereto are true and correct excerpts from Ross Haeberle’s
7 March 24, 2023 deposition in this matter.
8 26. Prior to the start of trial, Plaintiff’s counsel was not in possession of the regulations
9 that were the subject of Plaintiff’s subsequent Request for Judicial Notice, and Plaintiff was not
10 aware of what, if any, historic oil and gas regulations were applicable to the Starfire Sump.
11 27. Attached as Exhibit U is a March 16, 2006 letter that was marked and admitted
12 as Trial Exhibit 84. The March 16, 2006 letter was among the Geotracker documents referenced
13 in Defendant’s discovery responses.
14 28. On March 27, 2023, prior to Mr. Rice's deposition, counsel for Defendant
15 produced Buck Rice's expert file in the form of two large pdfs consisting of more than 400 pages
16 of documents lumped together. Because of this unwieldly format, Plaintiff's counsel did not have
17 the opportunity to review all of the contents of Mr. Rice’s file prior to his deposition.
18 29. On March 30, 2023, Plaintiff took the deposition of Mr. Rice. Attached as Exhibit
19 V are true and correct excerpts from Mr. Rice’s expert deposition in this matter.
20 30. After Mr. Rice's expert deposition and approximately two weeks before trial,
21 Plaintiff's counsel was reviewing and separating out the documents produced in Mr. Rice’s expert
22 file and discovered "Tab 8" of his file contained a single page that identified itself as a 1982
23 version of 14 California Code of Regulations section 1775. Attached as Exhibit W is a true and
24 correct copy of the page from Mr. Rice’s expert file.
25 31. The discovery of the 1982 version of section 1775 sparked a renewed question in
26 Plaintiff’s counsel’s minds regarding whether there were possibly other oil and gas regulations
27 that were in effect that had not be discovered or disclosed that might apply to the Starfire Sump.
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DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR NEW TRIAL
1 32. Therefore, shortly before trial members of our team started searching in earnest to
2 determine whether historical versions of regulations could be located, all while we were preparing
3 for trial.
4 33. Attorney Don Ernst on Plaintiff’s trial team searched the internet to determine
5 where historic records of the regulations could be located. Unfortunately, historic regulations are
6 not kept the way historic cases or statutes are kept and Mr. Ernst could not find any electronic
7 means to access historic regulations and historic regulations were not available on Westlaw. To
8 the best of what Mr. Ernst was able to uncover, he determined that records of California’s
9 historical regulations only appeared to be available at three physical libraries: Loyola Law
10 School, Cornell Law School and the State Library in Sacramento.
11 34. Based on this, Mr. Ernst reached out directly to the librarian at Loyola Law School
12 and went back and forth with the librarian in trying to determine what if any regulations could be
13 located. Importantly, Plaintiff’s initial focus was on finding what historical regulations, if any,
14 existed at the time Plaintiff understood the Starfire Sump was created covered up in 1974.
15 Initially, the Loyola law librarian located one or more regulations from approximately 1978,
16 however, they were not complete and referenced earlier versions of the regulations that counsel
17 needed to look for dating back to 1974. Unfortunately, the Loyola librarian only had the 1974
18 regulations available in microfiche. When Mr. Ernst received a copy of the microfiche version of
19 the 1974 regulations they were virtually illegible and portions of the regulations appeared to be
20 cutoff from the images. Because of this Plaintiff’s counsel was not able meaningfully rely on the
21 microfiche documents.
22 35. Therefore, while trial continued to proceed, Mr. Ernst made several attempts to
23 contact the State Library in Sacramento directly. The State Library eventually responded to Mr.
24 Ernst and said they would check into it, but there was no commitment in terms of if or when the
25 State Library would get to Plaintiff’s request.
26 ///
27 ///
28 ///
5
DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR NEW TRIAL
1 36. Based on this, Mr. Ernst reached out to Legislative Intent Service, Inc. to see if it
2 could assist in locating the historic regulations. As evidenced by her declaration in support of
3 Plaintiff’s request for judicial notice, Ms. Jenny Lillge was able to finally locate historic versions
4 of the oil and gas regulations from 1974 onward and signed a declaration on May 12, 2023.
5 37. Plaintiff’s counsel was actively engaged in trial when the regulations were
6 received from Ms. Lillge and did not have time to thoroughly review and determine what, if
7 anything, could be done with the newly discovered regulations until the shortly before Mr. Rice’s
8 testimony.
9 38. The bottom line is that it was very difficult for Plaintiff’s counsel to locate actual
10 copies of the oil and gas regulations that dated back to when the Starfire Sump was created and
11 covered up. Plaintiff’s counsel did not go into the search knowing that the regulations might
12 contain any retroactive clauses that created ongoing obligations after the sump was covered up.
13 That was only discovered and determined to be significant once Plaintiff was able to trace the
14 regulations back to their origins and review the language in relation to the evidence Plaintiff had
15 regarding the sump’s creation in roughly 1971 and abandonment by sometime in 1974. This took
16 a considerable amount of time and effort up to and including while the trial was actively
17 underway.
18 39. On May 19, 2022, Plaintiff made a written and oral Request for Judicial Notice of
19 specified historic oil and gas regulations (including section 1776) in Title 14 California Code of
20 Regulations from 1974, 1978, 1980, 1982 and 1984.
21 40. The request was made during the cross-examination of Defendant's expert Buck
22 Rice, who testified that under the language in the 1941 Twitchell Lease and 1964 Unit
23 Agreement, Union Oil would have been obligated to comply with any laws, rules or regulations
24 that were in place when the sump was constructed and covered up. Mr. Rice also testified that he
25 was not aware of any laws, rules or regulations that required Union Oil to remove sump materials
26 before covering the Starfire Sump.
27 41. Pursuant to the Court’s order during trial, Plaintiff’s case-in-chief was still open,
28 and Plaintiff had not rested his case at the time the Request for Judicial Notice of the subject
6
DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR NEW TRIAL
1 regulations was made. Furthermore, Plaintiff requested to cross-examine Mr. Rice regarding the
2 regulations in order to impeach his testimony, however, the Court did not allow Plaintiff’s counsel
3 to cross-examine Mr. Rice regarding the regulations.
4 I declare under penalty of perjury under the laws of the State of California that the above
5 facts are true and correct. Executed October 6, 2023 at Lake Arrowhead, California.
6
7 ______________________
8 Brian J. Ward, Esq.
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DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR NEW TRIAL
EXHIBIT A
In The Matter Of:
Wright -v-
Union Oil
Day 10 of Jury Trial
May 9, 2023
FINAL DRAFT
Swivel Legal Solutions, LLC
800-540-9099
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Original File 050923-JuryDay10-Tuesday-FINAL.txt
Min-U-Script® with Word Index
Wright -v- FINAL DRAFT Day 10 of Jury Trial
Union Oil May 9, 2023
Page 197 Page 199
1 has. 1 A. Yes.
2 ---------------------------------------- 2 Q. And when you say, "they were managing
3 UNNAMED DOCUMENT PUBLISHED ON SCREEN 3 financial costs rather than human risks," who were you
4 ---------------------------------------- 4 referring to?
5 THE COURT: In addition, the witness worked in 5 A. Both Unocal, and I think Chevron Environmental
6 the oil industry, and so as a percipient witness -- 6 Management was acting as a contractor to Unocal for the
7 a percipient witness is someone who just is not an 7 cleanup.
8 expert witness, but if you witness a car accident, 8 Q. Okay. And you said "an oil company's
9 for example, you could be a percipient witness to a 9 responsibility."
10 car accident or something. 10 What oil company are you referring to here?
11 So some of the things that he's going to 11 A. Well, in this case, Unocal.
12 testify for you about today are things that he just 12 Q. Okay. The defendant?
13 happened to be in the right place at the right time 13 A. The defendant.
14 to be a witness and experience. 14 Q. I would like to start with your second opinion
15 The other things that he's going to give you 15 that the "defendant had ownership, control, and
16 are his expert opinions, and his expert opinions 16 knowledge and everyone was aware of this."
17 are limited to these four things for right now. 17 Let's start with the beginning.
18 All right. You can take over now. Thank you. 18 They had ownership, control and knowledge of
19 MR. WARD: Thank you, Your Honor. 19 what?
20 BY MR. WARD: 20 A. Of the Twitchell lease, which is an acreage of
21 Q. Mr. Haeberle, can you please read to the jury 21 about 30 or 35 acres. It was one of a number of leases
22 the four opinions that were prepared here? 22 signed in or about 1941. I think it was originally the
23 A. Yes. 23 Bel-Air company took the lease and it later wound up
24 "Defense fell below what I believe 24 with SUN.
25 a prudent operator would do." 25 The lease gives the operator and encourages
Page 198 Page 200
1 "Defendant had ownership, control, 1 the operator to drill for oil and gas, and the benefit
2 knowledge, and everyone was aware 2 of that is that the -- the person who grants the lease
3 of this." 3 on their property gets money from the produced oil and
4 "They were managing financial 4 gas.
5 costs rather than human risk." 5 Q. And how did you know they were the operator?
6 "An oil company's responsibility 6 A. Oh, I've seen the lease.
7 in environmental contamination and 7 Q. Okay.
8 its failure to meet the prudent 8 MR. WARD: If I could refer Court and counsel
9 operator standard by prioritizing 9 and Mark, I believe, for the first time to
10 financial costs over human risk." 10 Exhibit 74 -- or I'm sorry, this would have been
11 Q. Okay. I want to walk through each one of 11 the defense exhibit ... Ms. Bonneville?
12 these, but before we do, I want to make sure that we 12 MR. LEVIN: Is that the lease or the unit --
13 understand the words that are up here. 13 MR. WARD: Yeah. I thought you had pointed me
14 When you say the "defense," do you mean 14 to a different number for the unit, the agreement.
15 Union Oil? 15 MR. LEVIN: The witness said "lease" though,
16 A. Yes, that's what I understand. 16 so maybe there's confusion there.
17 Q. That being the defendant in this case? 17 MR. WARD: Would you like me to put the lease
18 A. That's what I understand. 18 up?
19 Q. Represented by these people (indicating)? 19 MR. LEVIN: Whatever you'd like. I was
20 A. Yes. 20 just -- I'm not sure what you were looking for.
21 Q. And when you say "the defendant here had 21 MS. BONNEVILLE: 201.
22 ownership, control and knowledge," are you referring to 22 MR. WARD: Okay. Let's grab that out of
23 Union Oil? 23 the -- all right. Let me just cross-reference the
24 A. Union Oil, yes. 24 pages. Please take a look at page 11 of that for
25 Q. Also sometimes referred to as Unocal? 25 me. Jake.
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Union Oil May 9, 2023
Page 201 Page 203
1 (COUNSEL CONFERRING) 1 don't think any of them occurred --
2 MR. WARD: So let's identify it as 2 (JUROR SNEEZES, SHORT PAUSE)
3 Exhibit 201, the Unit Agreement identified, I 3 A. -- but there may be instances where capital
4 believe, for the first time. 4 monies are required to be put back into the unit. I'm
5 THE COURT: Exhibit 201. 5 not sure that that happened on this lease or in fact any
6 MR. WARD: And referring Court and counsel to 6 leases that I've seen in Santa Maria Valley.
7 page 201-11. Page 11. 7 Q. Okay. So knowing that those other members
8 Permission to publish, Your Honor. 8 have strictly financial obligations and
9 THE COURT: Any objection? 9 responsibilities. Is that a correct statement?
10 MR. LEVIN: No objection. 10 A. That's a correct statement.
11 THE COURT: Go ahead. 11 Q. So who would be boots on the ground? If
12 ---------------------------------------- 12 people were digging things, building things, taking oil
13 EXHIBIT 201 PUBLISHED ON SCREEN 13 out of the ground, who does that?
14 ---------------------------------------- 14 A. That would be Union Oil.
15 BY MR. WARD: 15 Q. Anybody else?
16 Q. Okay. This is something called a Unit 16 A. No.
17 Agreement. 17 MR. WARD: Okay. Let's turn to Exhibit 75,
18 Are you familiar with that? 18 which I'll identify for the first time as the Unit
19 A. Yes, I am. 19 Operating Agreement.
20 Q. What's a Unit Agreement? 20 (EXHIBIT 75 FIRST REFERRAL)
21 A. A Unit Agreement is entered into parties who 21 THE COURT: Exhibit 75.
22 hold oil and gas leases and find that for business 22 MR. WARD: Permission to publish Exhibit 75,
23 purposes, they want to contribute those leases into a 23 page 11.
24 larger hole, an operating unit. 24 MR. LEVIN: No objection.
25 And in the instance of the Santa Maria Valley 25 THE COURT: Go ahead.
Page 202 Page 204
1 field, the operator of that unit was Union Oil. 1 ----------------------------------------
2 Q. Okay. If we could focus on paragraph 4.1 here 2 EXHIBIT 75 PUBLISHED ON SCREEN
3 and call that out. 3 ----------------------------------------
4 MR. NORMAN: (Enlarging on screen). 4 BY MR. WARD:
5 BY MR. WARD: 5 Q. Are you familiar with the Unit Operating
6 Q. It says here that Union Oil -- they're 6 Agreement?
7 designating Union Oil as the unit operator. Is that 7 A. I am.
8 your understanding? 8 Q. Generally, what is it?
9 A. That's been my understanding, yes. 9 A. It sets out the way in which Unocal, being the
10 Q. And in your work both contemporaneously and 10 unit -- being designated as the unit operator, will
11 historically in the oil and gas business, what is a unit 11 continue operations and what is expected of them.
12 operator? 12 They're expected to -- I think the word is "in
13 A. The unit operator takes over all the 13 a workmanlike fashion."
14 management, maintenance, pumping and bookkeeping and 14 Q. Okay. Let's do those one at a time.
15 accounting for the operation of the lease. 15 MR. WARD: Can we call out 7.1, please,
16 Q. Okay. And in this case, what are the 16 Mr. Norman?
17 responsibilities of the other members of the unit? 17 6.1. Yes. Thank you.
18 A. The leaseholder, the people who had the 18 BY MR. WARD:
19 original lease and had contributed it to the unit now 19 Q. Does this document again designate Union Oil
20 back away from any and all activities on the lease. 20 as the exclusive operator for the Twitchell lease?
21 They are only collecting some pre-agreed 21 A. Yes, it does.
22 royalty for the continued production. 22 Q. And that means the same things we just talked
23 Q. Is that their only involvement? They just sit 23 about with the last document in terms of control, boots
24 back and take money? 24 on the ground?
25 A. Pretty much. There may be instances -- and I 25 A. Yes.
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1 Q. Okay. 1 Q. Unit operator, that's Union Oil?
2 MR. WARD: And if we could please turn to 7.1 2 A. That is Union Oil.
3 on page 12. 3 Q. Have you ever seen any books regarding the
4 BY MR. WARD: 4 Twitchell lease from Union Oil?
5 Q. Do you see 7.1 here? 5 A. No.
6 A. Yes, I do. 6 Q. Have you ever seen any accounts from Union Oil
7 Q. It's called "exclusive right to operate unit." 7 regarding the Twitchell lease?
8 What was your understanding of what it meant 8 A. No.
9 to have the exclusive right? 9 Q. Have you ever seen any records of unit
10 A. That SUN contributed the lease and all control 10 operations from Union Oil regarding the Twitchell lease?
11 of the lease to the unit operator. 11 A. No.
12 Q. Okay. It says that the unit operator -- that 12 Q. Okay. Let's also take a look at exhibit --
13 being Union, correct? 13 I'm sorry, paragraph 7.7, same page:
14 A. Yes. 14 "Reports to Governmental
15 Q. -- "shall have the exclusive right and be 15 Authorities."
16 obligated to conduct unit operations." 16 Is this typical in oil and gas lease
17 Is that correct? 17 agreements?
18 A. That's right. 18 A. It is, yes.
19 Q. Does that mean that nobody else is allowed to 19 Q. And is that because the extraction and
20 be boots on the ground there? 20 processing and distribution of oil and gas is regulated
21 A. That's pretty much what that says. Their 21 by the government?
22 basic -- it's basically their lease at that point. 22 A. By state governments, yes.
23 Q. So no one can come onto that land and start 23 MR. WARD: Okay. And if I could please get
24 digging holes or drilling for oil unless Union says 24 5-14 again.
25 "yes"? 25 BY MR. WARD:
Page 206 Page 208
1 A. Unless Union says "yes." 1 Q. As it's coming up -- there we go:
2 MR. WARD: Okay. And if we could then pull up 2 "That the defendant had ownership,
3 7.2. 3 control, and knowledge."
4 BY MR. WARD: 4 Do those documents form at least part of the
5 Q. 722 is entitled: 5 basis for your opinion that Union Oil had control,
6 "Workmanlike Conduct." 6 ownership, and knowledge of the operations on the
7 Is that a term of art in your industry? 7 Twitchell lease?
8 A. It is. 8 A. Yes, they do.
9 Q. Can you describe to us what it means. 9 Q. Did the Twitchell lease include what later
10 A. Workmanlike conduct refers to a generally good 10 became a property known as 2833 Starfire?
11 and accepted standard of operation. 11 A. Almost entirely, yes.
12 Q. Okay. Are you familiar with that generally 12 Q. Does that mean that Union Oil had ownership,
13 good and accepted standard of operation? 13 control, and knowledge of what would have occurred at
14 A. I think I am, yes. 14 2833 Starfire during the relevant period of their being
15 Q. All right. We'll have some questions about 15 the exclusive unit operator?
16 that in a bit. 16 A. Yes, they would.
17 MR. WARD: Can we call up, please, 17 Q. Based on your review in this case, during what
18 paragraph 7.5 of the agreement, on 75, page 12. 18 years was Union Oil the exclusive unit operator?
19 BY MR. WARD: 19 A. The Unit Agreement was executed sometime in
20 Q. Read this to us, please, if you can see it. 20 1964. And SUN contributed its leases back to the unit
21 A. I can. 21 operator, I think, in 1978, which means that they no
22 "7.5. Records. Unit operator 22 longer held the lease. They essentially gave it to
23 shall keep correct books, 23 Union.
24 accounts, and records of unit 24 Q. Prior to SUN giving back the lease, did they
25 operations." 25 have any control over the operations?
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1 A. No, not as explained in the operating 1 done through a contractor, Union would have been sole
2 agreement. 2 proprietor of that contract.
3 Q. So even if other companies still held 3 Q. And if they had done that, that would be the
4 technical lease rights, they weren't allowed to operate 4 type of thing that an oil company would keep records and
5 unless Union said so. 5 books of. Correct?
6 A. There would have been no need to, no. 6 A. I would certainly think so. Yes.
7 Q. Because Union was taking care of the entire 7 Q. Okay. So you undertook this investigation
8 Twitchell lease. 8 through the use of aerial photos. Correct?
9 A. That was their responsibility. 9 A. Yes, sir.
10 Q. Now, the defense -- so when you give this 10 Q. And you were able to reconstruct kind of a
11 opinion, do you mean they had ownership, control, 11 historical timeline of when you could see things show up
12 knowledge of everything that occurred at or around 12 and when you saw them disappear.
13 2833 Starfire? 13 Is that right?
14 A. Yes. 14 A. That's right.
15 Q. I apologize if I asked that. It occurred to 15 Q. Now, I'm showing you a different set of
16 me halfway through I might have. 16 photographs than the ones that you originally used to
17 Let's talk about the first opinion. 17 solve this issue. Correct?
18 Does your first opinion relate to the oil 18 A. I believe that's correct, yes.
19 field operations that occurred at 2833 Starfire? 19 Q. Do these appear to be essentially photographs
20 A. Yes. 20 that depict the same area over the same time periods?
21 MR. WARD: And if I could have Exhibit 15, 21 A. Well, 1969, that's the Twitchell lease. It
22 starting with page 5, pulled up. That's been 22 was a good deal of an adjacent lease to the north. But,
23 previously admitted. And if you could just take 23 yes, I can identify the tank battery, the tank battery
24 the bottom part off, please. 24 sumps, and most of the well locations.
25 Just a moment while we get that together. 25 Q. So in 1969, Union Oil's responsible for
Page 210 Page 212
1 BY MR. WARD: 1 running all this here. Correct?
2 Q. At some point you undertook an investigation 2 A. That's right.
3 to determine when the feature that was discovered 3 MR. WARD: And could we call this out,
4 underneath 2833 Starfire was put in and then stopped. 4 Mr. Norman, this area here?
5 Is that correct? 5 MR. NORMAN: (Enlarging document on screen)
6 A. Yes. There had been some back-and-forth 6 BY MR. WARD:
7 between Kerr-McGee and Unocal about responsibility for 7 Q. This is described as feature location. Is it
8 what was termed "sump material" that had not been 8 your understanding that this is where the Starfire sump
9 assigned -- a responsibility assigned to the 9 as well as 2833 Starfire eventually was located?
10 already-identified features. 10 A. It would appear there later, yes.
11 Q. Okay. And when that dispute first came about, 11 Q. Okay. And in 1969, is there any evidence of
12 it was regarding things around this tank battery up 12 this so-called mystery sump?
13 here, correct? When the dispute first arose. 13 A. No, sir.
14 A. That's correct. 14 MR. WARD: Okay. Could we go to the next
15 Q. Okay. And the tank battery up here, as well 15 slide, please.
16 as what becomes the Starfire sump down here, they're all 16 BY MR. WARD:
17 part of the Twitchell lease. 17 Q. Okay. In 1971 --
18 Is that right? 18 MR. WARD: Could we please zoom in on the
19 A. They are. 19 feature location.
20 Q. They're all subject to the exact same unit 20 BY MR. WARD:
21 operating agreement? 21 Q. Can you describe to us what you see when you
22 A. Yes. 22 look at the feature location in 1971?
23 Q. Union Oil's the only one allowed to have boots 23 A. That's a pit that was dug by a bulldozer.
24 on the ground at either of these locations. 24 Q. How do you know that?
25 A. That, or in an instance they needed some work 25 A. Well, having operated a bulldozer, I have some
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1 direct knowledge. 1 between the two ramps at the end.
2 But in this case, it's clear that the dozer 2 Q. And from this photo, can you or can you not
3 pushed dirt up from the pit both to the northeast and 3 tell what substance is actually in that?
4 the southwest ends. 4 A. Not from this photo.
5 Q. Am I getting the dirt piles here with my 5 Q. Were you later able to deduce, based on your
6 laser? 6 education, training, and experience, the likely
7 A. That's right. 7 inhabitant of this sump?
8 Q. Okay. 8 A. Likely material, in my opinion --
9 A. A bulldozer moves back and forth. It moves 9 Q. That's a "yes" or a "no." We'll talk about --
10 back empty, drops its blade, and then proceeds forward, 10 A. That's a yes.
11 pushes dirt, in this case up and out of a ramp at the 11 Q. Yes. That comes later, though.
12 end. 12 A. Understood.
13 Q. Okay. And 1971, correct me if I'm wrong, but 13 Q. Okay. Let's go to our next slide.
14 Union is still the exclusive operator. 14 All right. 1973, let's look at our feature
15 A. They are. 15 location once more on a call-out.
16 Q. The only one with the right to do something 16 Describe what you see in 1973.
17 like this on the Twitchell lease. 17 A. It's the same pit, only now it's even fuller,
18 A. That's correct. 18 or there's more liquid in it.
19 MR. WARD: Okay. Let's do the next slide. 19 Q. Okay.
20 BY MR. WARD: 20 A. The area is larger.
21 Q. In 1972, does this still show essentially the 21 Q. And just on this photo, we still don't know
22 Twitchell lease and the tank battery up here? 22 what that liquid is yet. Correct?
23 A. That's the same area, yes. 23 A. No.
24 Q. Let's call out this emerging sump and have a 24 Q. Okay. Let's take a look at the next slide.
25 look at it. 25 MR. WARD: And for the record, we've been
Page 214 Page 216
1 Can you describe to us, based on your 1 progressing sequentially through Exhibit 15. The
2 education, training, and experience, what you see in 2 next slide will be 15-9.
3 1972. 3 ----------------------------------------
4 A. I see an oil well -- an oil field feature. 4 Exhibit 15-9 PUBLISHED ON SCREEN
5 That's a sump. 5 ----------------------------------------
6 Q. Okay. Specifically a sump? 6 MR. WARD: No. I jumped. That's my bad. I
7 A. Yes, sir. 7 meant 15-11.
8 Q. A sump is a what? 8 BY MR. WARD:
9 A. A sump is a hole in the ground dug to receive 9 Q. By 1982, is this still the same Twitchell
10 liquids not used from producing oil. 10 lease that we've been looking at in all these previous
11 Q. Okay. In 1972, Union is still the exclusive 11 photos?
12 operator? 12 A. Yes.
13 A. They are. 13 Q. In 1982, is Union Oil still the exclusive
14 Q. And you could reasonably assume that they were 14 operator of the Twitchell lease?
15 responsible for the digging and creation of this sump, 15 A. Yes.
16 yes? 16 Q. Okay.
17 (REPORTER REQUESTED CLARIFICATION) 17 MR. WARD: Let's zoom in on the feature
18 BY MR. WARD: 18 location.
19 Q. And you could reasonably assume that they were 19 BY MR. WARD:
20 responsible for the digging and creation of this sump? 20 Q. Tell us what you see in 1982.
21 A. Yes. 21 A. The feature has been graded out. There's just
22 Q. Do you have any opinions as to whether or not 22 a remnant of the grading scar to the left of the arrow.
23 the sump appears to be in use in 1972? 23 Q. Is that this?
24 A. It appears that the sump is full or nearly 24 A. That's that.
25 full of liquid at this point. That's the blackness 25 Q. What's the remnant of a grading scar?
Min-U-Script® Lori Byrd, Realtime Court Reporter (54) Pages 213 - 216
Swivel Legal Solutions, LLC
Wright -v- FINAL DRAFT Day 10 of Jury Trial
Union Oil May 9, 2023
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1 A. When -- when earth is moved, in this case put 1 say VOCs?
2 back over the sump, it takes some time for weeds and 2 A. That's fine.
3 grass and so forth to repopulate it. That's an area 3 Q. That's easier for me.
4 that hasn't quite caught up with the rest of it yet, and 4 Finding high level of VOCs and knowing that
5 it's still bear dirt. 5 Santa Maria crude is low in VOCs, what conclusions or
6 Q. Just this scar here that you identified? 6 what's the next step in your investigative trail?
7 A. That's right. 7 A. Given the proximity of where that pit was dug
8 Q. But at the sump location or the feature 8 to the Twitchell number 4 well which is just off the
9 location, does it describe to us what you see in terms 9 left burr of the arrow there ...
10 of returning to its original state, if you can? I don't 10 Down a little bit.
11 know. 11 Right there.
12 A. Well, from what can be determined from this 12 That is actually the shadow of the pumping
13 aerial photo, it has been leveled, and the -- the ramps 13 jack or the pumping jack foundation for the Twitchell
14 that I pointed out earlier, the northeast and southwest 14 well.
15 ends of the sump are gone, and the presumption has to be 15 And I said 4. I think it's 5.
16 that they were used as cover to fill back. 16 But the location is such with that turn-around
17 Q. Okay. So what I hear you saying is the dirt 17 road, that to me, it was clearly put at that point so
18 that they took out piled up, just got put right back 18 that a heavy truck could make a turn-around without
19 into that hole, no more hole? 19 having to back up and discharge something into it.
20 A. That's correct. 20 And that something, I believe, based on
21 Q. Okay. I want to also show you 1974, if we can 21 interviews with people who were alive and worked in the
22 go back. 22 oil fields at that time, was diluent.
23 I kind of jumped to the end. 23 Q. That's a new word. Can you please define
24 Let's call out the feature location in 1974 24 diluent? D-I-L-U-E-N-T. Is that a correct spelling?
25 and describe to us what you see in 1974. 25 A. I believe it is, yes.
Page 218 Page 220
1 A. Okay. This is in line with what I was saying 1 Q. Thank you. Now please define it for us.
2 earlier. Only here, I can see still the faint outline 2 A. Diluent is basically a, in this case, it's a
3 of what was the sump. And the grading scar is -- has 3 solvent. Something that is used to make something else
4 still a lot of bear dirt. 4 more pliable, or more flowable, or increase its capacity
5 Q. Okay. And even based on this photo, is there 5 to be pumped.
6 any idea to know what was in that pit or what got 6 Q. And in oil field operations, what is diluent
7 covered up in that pit, or does that come later? 7 typically used for in the field?
8 A. That comes later. 8 A. It's used to remediate, or to overhaul a well
9 Q. When later does that come where you start to 9 which has been in production for some time. They tend
10 understand what was in that pit? 10 to accumulate harder or unflowable material from the
11 A. When I began to see the analysis of soil 11 oil, the oil itself, in and around the wellbore.
12 samples taken from the pit. 12 And the remedy for that is to take a solvent,
13 Q. What analysis of soil samples are you talking 13 in this case an oil field diluent, pump it back down the
14 about? 14 well through those encrusted areas, or those
15 A. I think it was a Padre investigation that
Preview
1 Brian J. Ward (SBN 244387) Erin L. Powers, Esq. (SBN 245148) 2 Jakob Z. Norman, Esq (Admitted Pro Hac Vice) TRIAL LAWYERS FOR JUSTICE 3 877 South Victoria Avenue, Suite 201 Ventura CA 93003 4 Tel: (310) 855-3727 Fax: (310) 855-3595 5 Email: teamojai@tl4j.com brianward@tl4j.com 6 erin@tl4j.com jakob@tl4j.com 7 Taylor Ernst (SBN 277901) 8 Terry Kilpatrick, (SBN 163197) ERNST LAW GROUP 9 1020 Palm Street San Luis Obispo, California 93401 10 Tel: (805) 541-0300 te@ernstlawgroup.com 11 tk@ernstlawgroup.com 12 Benjamin I. Siminou (254815) Jonna D. Lothyan (298650) 13 SINGLETON SCHREIBER, LLP 591 Camino De La Reina, Ste. 1025 14 San Diego, CA 92108 Tel: (619) 704-3288 15 bsiminou@singletonschreiber.com jlothyan@singletonschreiber.com 16 Attorneys for Plaintiff, KEVIN WRIGHT 17 18 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA-COOK STREET DIVISION 19 20 KEVIN WRIGHT, CASE NO.: 21CV00925 21 Plaintiff, DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION 22 v. TO DEFEDANT’S MOTION FOR NEW TRIAL 23 UNOCAL CORPORATION, a Delaware corporation; et al., Date: October 31, 2023 24 Time: 8:30 a.m. Defendants. Dept: SM-2 25 Judge: Hon. James F. Rigali 26 Complaint Filed: 7/08/2021 27 Trial Date: 4/24/2023 28 1 DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR NEW TRIAL 1 DECLARATION OF BRIAN J. WARD 2 I, Brian J. Ward , declare and state as follows: 3 1. I am an attorney duly licensed to practice law before all courts of the State of 4 California and am an attorney with Trial Lawyers for Justice, attorneys of record for Plaintiff 5 Kevin Wright. I make this declaration in support of Plaintiff’s Opposition to Defendant Union 6 Oil of California’s Motion for a New Trial. As to those facts stated on information and belief, I 7 am confirmed and believe that they are true. If called to testify, I could and would competently 8 testify to the matters described herein. 9 Exhibits In Support Of Plaintiff’s Opposition: 10 2. Attached as Exhibit A hereto are a true and correct excerpts of the May 9, 2023 11 Transcript of Proceedings. 12 3. Attached as Exhibit B hereto are a true and correct excerpts of the May 10, 2023 13 Transcript of Proceedings. 14 4. Attached as Exhibit C hereto are a true and correct excerpts of the May 19, 2023 15 Transcript of Proceedings. 16 5. Attached as Exhibit D hereto are a true and correct excerpts of the May 5, 2023 17 Transcript of Proceedings. 18 6. Attached as Exhibit E hereto are a true and correct excerpts of the May 8, 2023 19 Transcript of Proceedings. 20 7. Attached as Exhibit F hereto are a true and correct excerpts of the May 15, 2023 21 Transcript of Proceedings. 22 8. Attached as Exhibit G hereto are a true and correct excerpts of the May 16, 2023 23 Transcript of Proceedings. 24 9. Attached as Exhibit H hereto are a true and correct excerpts of the May 18, 2023 25 Transcript of Proceedings. 26 10. Attached as Exhibit I hereto are a true and correct excerpts of the May 22, 2023 27 Transcript of Proceedings. 28 2 DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR NEW TRIAL 1 11. Attached as Exhibit J hereto are a true and correct excerpts of the May 23, 2023 2 Transcript of Proceedings. 3 12. Attached as Exhibit K hereto are a true and correct excerpts of the May 24, 2023 4 Transcript of Proceedings. 5 13. Attached as Exhibit L hereto are a true and correct excerpts of the May 25, 2023 6 Transcript of Proceedings. 7 14. Attached as Exhibit M hereto are true and correct excerpts of the May 11, 2023 8 Transcript of Proceedings. 9 15. Attached as Exhibit N hereto are true and correct excerpts of the June 6, 2023 10 Transcript of Proceedings. 11 16. Attached as Exhibit O hereto are true and correct excerpts of the May 26, 2023 12 Transcript of Proceedings. 13 17. Attached as Exhibit P hereto are true and correct excerpts of the June 7, 2023 14 Transcript of Proceedings. 15 18. Attached as Exhibit Q hereto are true and correct excerpts of the May 4, 2023 16 Transcript of Proceedings. 17 Additional Facts and Exhibits re: Plaintiff’s Discovery of Oil and Gas Regulations: 18 19. Attached as Exhibit R hereto are is a true and correct copy of the relevant portions 19 of Plaintiff's First Amended Complaint. 20 20. At the time Plaintiff filed the FAC, Plaintiff was not aware of the regulations that 21 became the subject of Plaintiff’s May 19, 2023 Request for Judicial Notice, including but not 22 limited to section 1776. 23 21. At the time Plaintiff responded to Defendant’s Form Interrogatory 14.1 and other 24 discovery requests Plaintiff was not aware of the regulations that became the subject of Plaintiff’s 25 Request for Judicial Notice made during trial. 26 22. Defendant did not serve Plaintiff with supplemental discovery requests. 27 28 3 DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR NEW TRIAL 1 23. Prior to expert depositions in this matter, Plaintiff's counsel inquired of its experts 2 as to whether any oil and gas regulations applied to the Starfire Sump. None of Plaintiff's experts 3 were able to identify any specific regulations. 4 24. Attached as Exhibit S hereto is a true and correct excerpt of Defendant Union 5 Oil’s response to Plaintiff’s Request for Production of Documents, Set 1. 6 25. Attached as Exhibit T hereto are true and correct excerpts from Ross Haeberle’s 7 March 24, 2023 deposition in this matter. 8 26. Prior to the start of trial, Plaintiff’s counsel was not in possession of the regulations 9 that were the subject of Plaintiff’s subsequent Request for Judicial Notice, and Plaintiff was not 10 aware of what, if any, historic oil and gas regulations were applicable to the Starfire Sump. 11 27. Attached as Exhibit U is a March 16, 2006 letter that was marked and admitted 12 as Trial Exhibit 84. The March 16, 2006 letter was among the Geotracker documents referenced 13 in Defendant’s discovery responses. 14 28. On March 27, 2023, prior to Mr. Rice's deposition, counsel for Defendant 15 produced Buck Rice's expert file in the form of two large pdfs consisting of more than 400 pages 16 of documents lumped together. Because of this unwieldly format, Plaintiff's counsel did not have 17 the opportunity to review all of the contents of Mr. Rice’s file prior to his deposition. 18 29. On March 30, 2023, Plaintiff took the deposition of Mr. Rice. Attached as Exhibit 19 V are true and correct excerpts from Mr. Rice’s expert deposition in this matter. 20 30. After Mr. Rice's expert deposition and approximately two weeks before trial, 21 Plaintiff's counsel was reviewing and separating out the documents produced in Mr. Rice’s expert 22 file and discovered "Tab 8" of his file contained a single page that identified itself as a 1982 23 version of 14 California Code of Regulations section 1775. Attached as Exhibit W is a true and 24 correct copy of the page from Mr. Rice’s expert file. 25 31. The discovery of the 1982 version of section 1775 sparked a renewed question in 26 Plaintiff’s counsel’s minds regarding whether there were possibly other oil and gas regulations 27 that were in effect that had not be discovered or disclosed that might apply to the Starfire Sump. 28 4 DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR NEW TRIAL 1 32. Therefore, shortly before trial members of our team started searching in earnest to 2 determine whether historical versions of regulations could be located, all while we were preparing 3 for trial. 4 33. Attorney Don Ernst on Plaintiff’s trial team searched the internet to determine 5 where historic records of the regulations could be located. Unfortunately, historic regulations are 6 not kept the way historic cases or statutes are kept and Mr. Ernst could not find any electronic 7 means to access historic regulations and historic regulations were not available on Westlaw. To 8 the best of what Mr. Ernst was able to uncover, he determined that records of California’s 9 historical regulations only appeared to be available at three physical libraries: Loyola Law 10 School, Cornell Law School and the State Library in Sacramento. 11 34. Based on this, Mr. Ernst reached out directly to the librarian at Loyola Law School 12 and went back and forth with the librarian in trying to determine what if any regulations could be 13 located. Importantly, Plaintiff’s initial focus was on finding what historical regulations, if any, 14 existed at the time Plaintiff understood the Starfire Sump was created covered up in 1974. 15 Initially, the Loyola law librarian located one or more regulations from approximately 1978, 16 however, they were not complete and referenced earlier versions of the regulations that counsel 17 needed to look for dating back to 1974. Unfortunately, the Loyola librarian only had the 1974 18 regulations available in microfiche. When Mr. Ernst received a copy of the microfiche version of 19 the 1974 regulations they were virtually illegible and portions of the regulations appeared to be 20 cutoff from the images. Because of this Plaintiff’s counsel was not able meaningfully rely on the 21 microfiche documents. 22 35. Therefore, while trial continued to proceed, Mr. Ernst made several attempts to 23 contact the State Library in Sacramento directly. The State Library eventually responded to Mr. 24 Ernst and said they would check into it, but there was no commitment in terms of if or when the 25 State Library would get to Plaintiff’s request. 26 /// 27 /// 28 /// 5 DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR NEW TRIAL 1 36. Based on this, Mr. Ernst reached out to Legislative Intent Service, Inc. to see if it 2 could assist in locating the historic regulations. As evidenced by her declaration in support of 3 Plaintiff’s request for judicial notice, Ms. Jenny Lillge was able to finally locate historic versions 4 of the oil and gas regulations from 1974 onward and signed a declaration on May 12, 2023. 5 37. Plaintiff’s counsel was actively engaged in trial when the regulations were 6 received from Ms. Lillge and did not have time to thoroughly review and determine what, if 7 anything, could be done with the newly discovered regulations until the shortly before Mr. Rice’s 8 testimony. 9 38. The bottom line is that it was very difficult for Plaintiff’s counsel to locate actual 10 copies of the oil and gas regulations that dated back to when the Starfire Sump was created and 11 covered up. Plaintiff’s counsel did not go into the search knowing that the regulations might 12 contain any retroactive clauses that created ongoing obligations after the sump was covered up. 13 That was only discovered and determined to be significant once Plaintiff was able to trace the 14 regulations back to their origins and review the language in relation to the evidence Plaintiff had 15 regarding the sump’s creation in roughly 1971 and abandonment by sometime in 1974. This took 16 a considerable amount of time and effort up to and including while the trial was actively 17 underway. 18 39. On May 19, 2022, Plaintiff made a written and oral Request for Judicial Notice of 19 specified historic oil and gas regulations (including section 1776) in Title 14 California Code of 20 Regulations from 1974, 1978, 1980, 1982 and 1984. 21 40. The request was made during the cross-examination of Defendant's expert Buck 22 Rice, who testified that under the language in the 1941 Twitchell Lease and 1964 Unit 23 Agreement, Union Oil would have been obligated to comply with any laws, rules or regulations 24 that were in place when the sump was constructed and covered up. Mr. Rice also testified that he 25 was not aware of any laws, rules or regulations that required Union Oil to remove sump materials 26 before covering the Starfire Sump. 27 41. Pursuant to the Court’s order during trial, Plaintiff’s case-in-chief was still open, 28 and Plaintiff had not rested his case at the time the Request for Judicial Notice of the subject 6 DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR NEW TRIAL 1 regulations was made. Furthermore, Plaintiff requested to cross-examine Mr. Rice regarding the 2 regulations in order to impeach his testimony, however, the Court did not allow Plaintiff’s counsel 3 to cross-examine Mr. Rice regarding the regulations. 4 I declare under penalty of perjury under the laws of the State of California that the above 5 facts are true and correct. Executed October 6, 2023 at Lake Arrowhead, California. 6 7 ______________________ 8 Brian J. Ward, Esq. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DECLARATION OF BRIAN J. WARD IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR NEW TRIAL EXHIBIT A In The Matter Of: Wright -v- Union Oil Day 10 of Jury Trial May 9, 2023 FINAL DRAFT Swivel Legal Solutions, LLC 800-540-9099 www.SwivelLegal.com Original File 050923-JuryDay10-Tuesday-FINAL.txt Min-U-Script® with Word Index Wright -v- FINAL DRAFT Day 10 of Jury Trial Union Oil May 9, 2023 Page 197 Page 199 1 has. 1 A. Yes. 2 ---------------------------------------- 2 Q. And when you say, "they were managing 3 UNNAMED DOCUMENT PUBLISHED ON SCREEN 3 financial costs rather than human risks," who were you 4 ---------------------------------------- 4 referring to? 5 THE COURT: In addition, the witness worked in 5 A. Both Unocal, and I think Chevron Environmental 6 the oil industry, and so as a percipient witness -- 6 Management was acting as a contractor to Unocal for the 7 a percipient witness is someone who just is not an 7 cleanup. 8 expert witness, but if you witness a car accident, 8 Q. Okay. And you said "an oil company's 9 for example, you could be a percipient witness to a 9 responsibility." 10 car accident or something. 10 What oil company are you referring to here? 11 So some of the things that he's going to 11 A. Well, in this case, Unocal. 12 testify for you about today are things that he just 12 Q. Okay. The defendant? 13 happened to be in the right place at the right time 13 A. The defendant. 14 to be a witness and experience. 14 Q. I would like to start with your second opinion 15 The other things that he's going to give you 15 that the "defendant had ownership, control, and 16 are his expert opinions, and his expert opinions 16 knowledge and everyone was aware of this." 17 are limited to these four things for right now. 17 Let's start with the beginning. 18 All right. You can take over now. Thank you. 18 They had ownership, control and knowledge of 19 MR. WARD: Thank you, Your Honor. 19 what? 20 BY MR. WARD: 20 A. Of the Twitchell lease, which is an acreage of 21 Q. Mr. Haeberle, can you please read to the jury 21 about 30 or 35 acres. It was one of a number of leases 22 the four opinions that were prepared here? 22 signed in or about 1941. I think it was originally the 23 A. Yes. 23 Bel-Air company took the lease and it later wound up 24 "Defense fell below what I believe 24 with SUN. 25 a prudent operator would do." 25 The lease gives the operator and encourages Page 198 Page 200 1 "Defendant had ownership, control, 1 the operator to drill for oil and gas, and the benefit 2 knowledge, and everyone was aware 2 of that is that the -- the person who grants the lease 3 of this." 3 on their property gets money from the produced oil and 4 "They were managing financial 4 gas. 5 costs rather than human risk." 5 Q. And how did you know they were the operator? 6 "An oil company's responsibility 6 A. Oh, I've seen the lease. 7 in environmental contamination and 7 Q. Okay. 8 its failure to meet the prudent 8 MR. WARD: If I could refer Court and counsel 9 operator standard by prioritizing 9 and Mark, I believe, for the first time to 10 financial costs over human risk." 10 Exhibit 74 -- or I'm sorry, this would have been 11 Q. Okay. I want to walk through each one of 11 the defense exhibit ... Ms. Bonneville? 12 these, but before we do, I want to make sure that we 12 MR. LEVIN: Is that the lease or the unit -- 13 understand the words that are up here. 13 MR. WARD: Yeah. I thought you had pointed me 14 When you say the "defense," do you mean 14 to a different number for the unit, the agreement. 15 Union Oil? 15 MR. LEVIN: The witness said "lease" though, 16 A. Yes, that's what I understand. 16 so maybe there's confusion there. 17 Q. That being the defendant in this case? 17 MR. WARD: Would you like me to put the lease 18 A. That's what I understand. 18 up? 19 Q. Represented by these people (indicating)? 19 MR. LEVIN: Whatever you'd like. I was 20 A. Yes. 20 just -- I'm not sure what you were looking for. 21 Q. And when you say "the defendant here had 21 MS. BONNEVILLE: 201. 22 ownership, control and knowledge," are you referring to 22 MR. WARD: Okay. Let's grab that out of 23 Union Oil? 23 the -- all right. Let me just cross-reference the 24 A. Union Oil, yes. 24 pages. Please take a look at page 11 of that for 25 Q. Also sometimes referred to as Unocal? 25 me. Jake. Min-U-Script® Lori Byrd, Realtime Court Reporter (50) Pages 197 - 200 Swivel Legal Solutions, LLC Wright -v- FINAL DRAFT Day 10 of Jury Trial Union Oil May 9, 2023 Page 201 Page 203 1 (COUNSEL CONFERRING) 1 don't think any of them occurred -- 2 MR. WARD: So let's identify it as 2 (JUROR SNEEZES, SHORT PAUSE) 3 Exhibit 201, the Unit Agreement identified, I 3 A. -- but there may be instances where capital 4 believe, for the first time. 4 monies are required to be put back into the unit. I'm 5 THE COURT: Exhibit 201. 5 not sure that that happened on this lease or in fact any 6 MR. WARD: And referring Court and counsel to 6 leases that I've seen in Santa Maria Valley. 7 page 201-11. Page 11. 7 Q. Okay. So knowing that those other members 8 Permission to publish, Your Honor. 8 have strictly financial obligations and 9 THE COURT: Any objection? 9 responsibilities. Is that a correct statement? 10 MR. LEVIN: No objection. 10 A. That's a correct statement. 11 THE COURT: Go ahead. 11 Q. So who would be boots on the ground? If 12 ---------------------------------------- 12 people were digging things, building things, taking oil 13 EXHIBIT 201 PUBLISHED ON SCREEN 13 out of the ground, who does that? 14 ---------------------------------------- 14 A. That would be Union Oil. 15 BY MR. WARD: 15 Q. Anybody else? 16 Q. Okay. This is something called a Unit 16 A. No. 17 Agreement. 17 MR. WARD: Okay. Let's turn to Exhibit 75, 18 Are you familiar with that? 18 which I'll identify for the first time as the Unit 19 A. Yes, I am. 19 Operating Agreement. 20 Q. What's a Unit Agreement? 20 (EXHIBIT 75 FIRST REFERRAL) 21 A. A Unit Agreement is entered into parties who 21 THE COURT: Exhibit 75. 22 hold oil and gas leases and find that for business 22 MR. WARD: Permission to publish Exhibit 75, 23 purposes, they want to contribute those leases into a 23 page 11. 24 larger hole, an operating unit. 24 MR. LEVIN: No objection. 25 And in the instance of the Santa Maria Valley 25 THE COURT: Go ahead. Page 202 Page 204 1 field, the operator of that unit was Union Oil. 1 ---------------------------------------- 2 Q. Okay. If we could focus on paragraph 4.1 here 2 EXHIBIT 75 PUBLISHED ON SCREEN 3 and call that out. 3 ---------------------------------------- 4 MR. NORMAN: (Enlarging on screen). 4 BY MR. WARD: 5 BY MR. WARD: 5 Q. Are you familiar with the Unit Operating 6 Q. It says here that Union Oil -- they're 6 Agreement? 7 designating Union Oil as the unit operator. Is that 7 A. I am. 8 your understanding? 8 Q. Generally, what is it? 9 A. That's been my understanding, yes. 9 A. It sets out the way in which Unocal, being the 10 Q. And in your work both contemporaneously and 10 unit -- being designated as the unit operator, will 11 historically in the oil and gas business, what is a unit 11 continue operations and what is expected of them. 12 operator? 12 They're expected to -- I think the word is "in 13 A. The unit operator takes over all the 13 a workmanlike fashion." 14 management, maintenance, pumping and bookkeeping and 14 Q. Okay. Let's do those one at a time. 15 accounting for the operation of the lease. 15 MR. WARD: Can we call out 7.1, please, 16 Q. Okay. And in this case, what are the 16 Mr. Norman? 17 responsibilities of the other members of the unit? 17 6.1. Yes. Thank you. 18 A. The leaseholder, the people who had the 18 BY MR. WARD: 19 original lease and had contributed it to the unit now 19 Q. Does this document again designate Union Oil 20 back away from any and all activities on the lease. 20 as the exclusive operator for the Twitchell lease? 21 They are only collecting some pre-agreed 21 A. Yes, it does. 22 royalty for the continued production. 22 Q. And that means the same things we just talked 23 Q. Is that their only involvement? They just sit 23 about with the last document in terms of control, boots 24 back and take money? 24 on the ground? 25 A. Pretty much. There may be instances -- and I 25 A. Yes. Min-U-Script® Lori Byrd, Realtime Court Reporter (51) Pages 201 - 204 Swivel Legal Solutions, LLC Wright -v- FINAL DRAFT Day 10 of Jury Trial Union Oil May 9, 2023 Page 205 Page 207 1 Q. Okay. 1 Q. Unit operator, that's Union Oil? 2 MR. WARD: And if we could please turn to 7.1 2 A. That is Union Oil. 3 on page 12. 3 Q. Have you ever seen any books regarding the 4 BY MR. WARD: 4 Twitchell lease from Union Oil? 5 Q. Do you see 7.1 here? 5 A. No. 6 A. Yes, I do. 6 Q. Have you ever seen any accounts from Union Oil 7 Q. It's called "exclusive right to operate unit." 7 regarding the Twitchell lease? 8 What was your understanding of what it meant 8 A. No. 9 to have the exclusive right? 9 Q. Have you ever seen any records of unit 10 A. That SUN contributed the lease and all control 10 operations from Union Oil regarding the Twitchell lease? 11 of the lease to the unit operator. 11 A. No. 12 Q. Okay. It says that the unit operator -- that 12 Q. Okay. Let's also take a look at exhibit -- 13 being Union, correct? 13 I'm sorry, paragraph 7.7, same page: 14 A. Yes. 14 "Reports to Governmental 15 Q. -- "shall have the exclusive right and be 15 Authorities." 16 obligated to conduct unit operations." 16 Is this typical in oil and gas lease 17 Is that correct? 17 agreements? 18 A. That's right. 18 A. It is, yes. 19 Q. Does that mean that nobody else is allowed to 19 Q. And is that because the extraction and 20 be boots on the ground there? 20 processing and distribution of oil and gas is regulated 21 A. That's pretty much what that says. Their 21 by the government? 22 basic -- it's basically their lease at that point. 22 A. By state governments, yes. 23 Q. So no one can come onto that land and start 23 MR. WARD: Okay. And if I could please get 24 digging holes or drilling for oil unless Union says 24 5-14 again. 25 "yes"? 25 BY MR. WARD: Page 206 Page 208 1 A. Unless Union says "yes." 1 Q. As it's coming up -- there we go: 2 MR. WARD: Okay. And if we could then pull up 2 "That the defendant had ownership, 3 7.2. 3 control, and knowledge." 4 BY MR. WARD: 4 Do those documents form at least part of the 5 Q. 722 is entitled: 5 basis for your opinion that Union Oil had control, 6 "Workmanlike Conduct." 6 ownership, and knowledge of the operations on the 7 Is that a term of art in your industry? 7 Twitchell lease? 8 A. It is. 8 A. Yes, they do. 9 Q. Can you describe to us what it means. 9 Q. Did the Twitchell lease include what later 10 A. Workmanlike conduct refers to a generally good 10 became a property known as 2833 Starfire? 11 and accepted standard of operation. 11 A. Almost entirely, yes. 12 Q. Okay. Are you familiar with that generally 12 Q. Does that mean that Union Oil had ownership, 13 good and accepted standard of operation? 13 control, and knowledge of what would have occurred at 14 A. I think I am, yes. 14 2833 Starfire during the relevant period of their being 15 Q. All right. We'll have some questions about 15 the exclusive unit operator? 16 that in a bit. 16 A. Yes, they would. 17 MR. WARD: Can we call up, please, 17 Q. Based on your review in this case, during what 18 paragraph 7.5 of the agreement, on 75, page 12. 18 years was Union Oil the exclusive unit operator? 19 BY MR. WARD: 19 A. The Unit Agreement was executed sometime in 20 Q. Read this to us, please, if you can see it. 20 1964. And SUN contributed its leases back to the unit 21 A. I can. 21 operator, I think, in 1978, which means that they no 22 "7.5. Records. Unit operator 22 longer held the lease. They essentially gave it to 23 shall keep correct books, 23 Union. 24 accounts, and records of unit 24 Q. Prior to SUN giving back the lease, did they 25 operations." 25 have any control over the operations? Min-U-Script® Lori Byrd, Realtime Court Reporter (52) Pages 205 - 208 Swivel Legal Solutions, LLC Wright -v- FINAL DRAFT Day 10 of Jury Trial Union Oil May 9, 2023 Page 209 Page 211 1 A. No, not as explained in the operating 1 done through a contractor, Union would have been sole 2 agreement. 2 proprietor of that contract. 3 Q. So even if other companies still held 3 Q. And if they had done that, that would be the 4 technical lease rights, they weren't allowed to operate 4 type of thing that an oil company would keep records and 5 unless Union said so. 5 books of. Correct? 6 A. There would have been no need to, no. 6 A. I would certainly think so. Yes. 7 Q. Because Union was taking care of the entire 7 Q. Okay. So you undertook this investigation 8 Twitchell lease. 8 through the use of aerial photos. Correct? 9 A. That was their responsibility. 9 A. Yes, sir. 10 Q. Now, the defense -- so when you give this 10 Q. And you were able to reconstruct kind of a 11 opinion, do you mean they had ownership, control, 11 historical timeline of when you could see things show up 12 knowledge of everything that occurred at or around 12 and when you saw them disappear. 13 2833 Starfire? 13 Is that right? 14 A. Yes. 14 A. That's right. 15 Q. I apologize if I asked that. It occurred to 15 Q. Now, I'm showing you a different set of 16 me halfway through I might have. 16 photographs than the ones that you originally used to 17 Let's talk about the first opinion. 17 solve this issue. Correct? 18 Does your first opinion relate to the oil 18 A. I believe that's correct, yes. 19 field operations that occurred at 2833 Starfire? 19 Q. Do these appear to be essentially photographs 20 A. Yes. 20 that depict the same area over the same time periods? 21 MR. WARD: And if I could have Exhibit 15, 21 A. Well, 1969, that's the Twitchell lease. It 22 starting with page 5, pulled up. That's been 22 was a good deal of an adjacent lease to the north. But, 23 previously admitted. And if you could just take 23 yes, I can identify the tank battery, the tank battery 24 the bottom part off, please. 24 sumps, and most of the well locations. 25 Just a moment while we get that together. 25 Q. So in 1969, Union Oil's responsible for Page 210 Page 212 1 BY MR. WARD: 1 running all this here. Correct? 2 Q. At some point you undertook an investigation 2 A. That's right. 3 to determine when the feature that was discovered 3 MR. WARD: And could we call this out, 4 underneath 2833 Starfire was put in and then stopped. 4 Mr. Norman, this area here? 5 Is that correct? 5 MR. NORMAN: (Enlarging document on screen) 6 A. Yes. There had been some back-and-forth 6 BY MR. WARD: 7 between Kerr-McGee and Unocal about responsibility for 7 Q. This is described as feature location. Is it 8 what was termed "sump material" that had not been 8 your understanding that this is where the Starfire sump 9 assigned -- a responsibility assigned to the 9 as well as 2833 Starfire eventually was located? 10 already-identified features. 10 A. It would appear there later, yes. 11 Q. Okay. And when that dispute first came about, 11 Q. Okay. And in 1969, is there any evidence of 12 it was regarding things around this tank battery up 12 this so-called mystery sump? 13 here, correct? When the dispute first arose. 13 A. No, sir. 14 A. That's correct. 14 MR. WARD: Okay. Could we go to the next 15 Q. Okay. And the tank battery up here, as well 15 slide, please. 16 as what becomes the Starfire sump down here, they're all 16 BY MR. WARD: 17 part of the Twitchell lease. 17 Q. Okay. In 1971 -- 18 Is that right? 18 MR. WARD: Could we please zoom in on the 19 A. They are. 19 feature location. 20 Q. They're all subject to the exact same unit 20 BY MR. WARD: 21 operating agreement? 21 Q. Can you describe to us what you see when you 22 A. Yes. 22 look at the feature location in 1971? 23 Q. Union Oil's the only one allowed to have boots 23 A. That's a pit that was dug by a bulldozer. 24 on the ground at either of these locations. 24 Q. How do you know that? 25 A. That, or in an instance they needed some work 25 A. Well, having operated a bulldozer, I have some Min-U-Script® Lori Byrd, Realtime Court Reporter (53) Pages 209 - 212 Swivel Legal Solutions, LLC Wright -v- FINAL DRAFT Day 10 of Jury Trial Union Oil May 9, 2023 Page 213 Page 215 1 direct knowledge. 1 between the two ramps at the end. 2 But in this case, it's clear that the dozer 2 Q. And from this photo, can you or can you not 3 pushed dirt up from the pit both to the northeast and 3 tell what substance is actually in that? 4 the southwest ends. 4 A. Not from this photo. 5 Q. Am I getting the dirt piles here with my 5 Q. Were you later able to deduce, based on your 6 laser? 6 education, training, and experience, the likely 7 A. That's right. 7 inhabitant of this sump? 8 Q. Okay. 8 A. Likely material, in my opinion -- 9 A. A bulldozer moves back and forth. It moves 9 Q. That's a "yes" or a "no." We'll talk about -- 10 back empty, drops its blade, and then proceeds forward, 10 A. That's a yes. 11 pushes dirt, in this case up and out of a ramp at the 11 Q. Yes. That comes later, though. 12 end. 12 A. Understood. 13 Q. Okay. And 1971, correct me if I'm wrong, but 13 Q. Okay. Let's go to our next slide. 14 Union is still the exclusive operator. 14 All right. 1973, let's look at our feature 15 A. They are. 15 location once more on a call-out. 16 Q. The only one with the right to do something 16 Describe what you see in 1973. 17 like this on the Twitchell lease. 17 A. It's the same pit, only now it's even fuller, 18 A. That's correct. 18 or there's more liquid in it. 19 MR. WARD: Okay. Let's do the next slide. 19 Q. Okay. 20 BY MR. WARD: 20 A. The area is larger. 21 Q. In 1972, does this still show essentially the 21 Q. And just on this photo, we still don't know 22 Twitchell lease and the tank battery up here? 22 what that liquid is yet. Correct? 23 A. That's the same area, yes. 23 A. No. 24 Q. Let's call out this emerging sump and have a 24 Q. Okay. Let's take a look at the next slide. 25 look at it. 25 MR. WARD: And for the record, we've been Page 214 Page 216 1 Can you describe to us, based on your 1 progressing sequentially through Exhibit 15. The 2 education, training, and experience, what you see in 2 next slide will be 15-9. 3 1972. 3 ---------------------------------------- 4 A. I see an oil well -- an oil field feature. 4 Exhibit 15-9 PUBLISHED ON SCREEN 5 That's a sump. 5 ---------------------------------------- 6 Q. Okay. Specifically a sump? 6 MR. WARD: No. I jumped. That's my bad. I 7 A. Yes, sir. 7 meant 15-11. 8 Q. A sump is a what? 8 BY MR. WARD: 9 A. A sump is a hole in the ground dug to receive 9 Q. By 1982, is this still the same Twitchell 10 liquids not used from producing oil. 10 lease that we've been looking at in all these previous 11 Q. Okay. In 1972, Union is still the exclusive 11 photos? 12 operator? 12 A. Yes. 13 A. They are. 13 Q. In 1982, is Union Oil still the exclusive 14 Q. And you could reasonably assume that they were 14 operator of the Twitchell lease? 15 responsible for the digging and creation of this sump, 15 A. Yes. 16 yes? 16 Q. Okay. 17 (REPORTER REQUESTED CLARIFICATION) 17 MR. WARD: Let's zoom in on the feature 18 BY MR. WARD: 18 location. 19 Q. And you could reasonably assume that they were 19 BY MR. WARD: 20 responsible for the digging and creation of this sump? 20 Q. Tell us what you see in 1982. 21 A. Yes. 21 A. The feature has been graded out. There's just 22 Q. Do you have any opinions as to whether or not 22 a remnant of the grading scar to the left of the arrow. 23 the sump appears to be in use in 1972? 23 Q. Is that this? 24 A. It appears that the sump is full or nearly 24 A. That's that. 25 full of liquid at this point. That's the blackness 25 Q. What's the remnant of a grading scar? Min-U-Script® Lori Byrd, Realtime Court Reporter (54) Pages 213 - 216 Swivel Legal Solutions, LLC Wright -v- FINAL DRAFT Day 10 of Jury Trial Union Oil May 9, 2023 Page 217 Page 219 1 A. When -- when earth is moved, in this case put 1 say VOCs? 2 back over the sump, it takes some time for weeds and 2 A. That's fine. 3 grass and so forth to repopulate it. That's an area 3 Q. That's easier for me. 4 that hasn't quite caught up with the rest of it yet, and 4 Finding high level of VOCs and knowing that 5 it's still bear dirt. 5 Santa Maria crude is low in VOCs, what conclusions or 6 Q. Just this scar here that you identified? 6 what's the next step in your investigative trail? 7 A. That's right. 7 A. Given the proximity of where that pit was dug 8 Q. But at the sump location or the feature 8 to the Twitchell number 4 well which is just off the 9 location, does it describe to us what you see in terms 9 left burr of the arrow there ... 10 of returning to its original state, if you can? I don't 10 Down a little bit. 11 know. 11 Right there. 12 A. Well, from what can be determined from this 12 That is actually the shadow of the pumping 13 aerial photo, it has been leveled, and the -- the ramps 13 jack or the pumping jack foundation for the Twitchell 14 that I pointed out earlier, the northeast and southwest 14 well. 15 ends of the sump are gone, and the presumption has to be 15 And I said 4. I think it's 5. 16 that they were used as cover to fill back. 16 But the location is such with that turn-around 17 Q. Okay. So what I hear you saying is the dirt 17 road, that to me, it was clearly put at that point so 18 that they took out piled up, just got put right back 18 that a heavy truck could make a turn-around without 19 into that hole, no more hole? 19 having to back up and discharge something into it. 20 A. That's correct. 20 And that something, I believe, based on 21 Q. Okay. I want to also show you 1974, if we can 21 interviews with people who were alive and worked in the 22 go back. 22 oil fields at that time, was diluent. 23 I kind of jumped to the end. 23 Q. That's a new word. Can you please define 24 Let's call out the feature location in 1974 24 diluent? D-I-L-U-E-N-T. Is that a correct spelling? 25 and describe to us what you see in 1974. 25 A. I believe it is, yes. Page 218 Page 220 1 A. Okay. This is in line with what I was saying 1 Q. Thank you. Now please define it for us. 2 earlier. Only here, I can see still the faint outline 2 A. Diluent is basically a, in this case, it's a 3 of what was the sump. And the grading scar is -- has 3 solvent. Something that is used to make something else 4 still a lot of bear dirt. 4 more pliable, or more flowable, or increase its capacity 5 Q. Okay. And even based on this photo, is there 5 to be pumped. 6 any idea to know what was in that pit or what got 6 Q. And in oil field operations, what is diluent 7 covered up in that pit, or does that come later? 7 typically used for in the field? 8 A. That comes later. 8 A. It's used to remediate, or to overhaul a well 9 Q. When later does that come where you start to 9 which has been in production for some time. They tend 10 understand what was in that pit? 10 to accumulate harder or unflowable material from the 11 A. When I began to see the analysis of soil 11 oil, the oil itself, in and around the wellbore. 12 samples taken from the pit. 12 And the remedy for that is to take a solvent, 13 Q. What analysis of soil samples are you talking 13 in this case an oil field diluent, pump it back down the 14 about? 14 well through those encrusted areas, or those 15 A. I think it was a Padre investigation that