Preview
1 HENRY WEISSMANN (State Bar No. 132418)
henry.weissmann@mto.com
2 DANIEL B. LEVIN (State Bar No. 226044)
daniel.levin@mto.com
3 ROBYN K. BACON (State Bar No. 251048)
robyn.bacon@mto.com
4 COLIN A. DEVINE (State Bar No. 315801) CRAIG S. GRANET
colin.devine@mto.com (State Bar Number: 71020)
5 MUNGER, TOLLES & OLSON LLP craig.granet@rimonlaw.com
350 South Grand Avenue, 50th Floor RIMON, P.C.
6 Los Angeles, California 90071-3426 200 East Carrillo Street, Suite 201
Telephone: (213) 683-9100 Santa Barbara, California 93101
7 Facsimile: (213) 687-3702 Telephone: (805) 695-4080
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Attorneys for Defendants
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SANTA BARBARA, ANACAPA DIVISION
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CALIFORNIA STATE LANDS Case No. 18CV02504
13 COMMISSION, an agency of the State of
California, et al., DECLARATION OF JOHN B. MAJOR IN
14 SUPPORT OF DEFENDANTS’ MOTION
Plaintiffs, FOR LEAVE TO FILE MOTION FOR
15 SUMMARY ADJUDICATION
vs.
16 Hearing
PLAINS PIPELINE, L.P., a Texas Limited Date: May 10, 2024
17 Partnership, et al., Time: 9:00 AM
Dept.: 5
18 Defendant. Judge: Hon. Colleen K. Sterne
19 Action Filed: May 18, 2018
Trial Date: Oct. 7, 2024
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21 I, John B. Major, declare as follows:
22 1. I am over the age of 18 and legally competent to make this declaration. I am an
23 attorney with Munger, Tolles & Olson LLP in Los Angeles, California. I have personal
24 knowledge of the facts set forth in this declaration, and, if called as a witness, I could and would
25 testify competently to the matters set forth herein.
26 2. I spoke with counsel for the California State Lands Commission and the State of
27 California, Matthew Heyn, by telephone on March 6, 2024. During that call, I requested that
28 Plaintiffs stipulate that the Court’s order granting Defendants’ motion for summary adjudication
Case No. 18CV02504
DECL. OF JOHN B. MAJOR IN SUPPORT OF DEFS.’ MOT. FOR LEAVE
1 as to punitive damages in Davis v. Plains Pipeline, L.P., 16-CV-1319 (“Venoco”), applies equally
2 to this case. Mr. Heyn indicated that Plaintiffs were unwilling to so stipulate.
3 3. Attached hereto as Exhibit 1 is a true and correct copy of the Ex Parte Application
4 of the California State Lands Commission for Leave to File an Amicus Brief, filed in Venoco and
5 dated January 11, 2024.
6 4. Attached hereto as Exhibit 2 is a true and correct copy of Plaintiff California State
7 Lands Commission’s Statement Regarding Trial Continuance and Non-consolidation, filed in this
8 matter and dated November 14, 2023.
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10 DATED: April 18, 2024 MUNGER, TOLLES & OLSON LLP
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By:
13 JOHN B. MAJOR
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DECLARATION OF JOHN B. MAJOR IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE
EXHIBIT 1
003
1 ROB BONTA
Attorney General of California
2 BRIAN D. WESLEY
Supervising Deputy Attorney General
3 MICHAEL T. ZARRO, State Bar No. 110171
MATTHEW C. HEYN, State Bar No. 227474
4 ROBERT R. WILLIS, State Bar No. 258898
Deputy Attorneys General
5 300 S. Spring Street, Suite 1702
Los Angeles, CA 90013
6 Telephone: (213) 269-6232 Exempt from filing fees pursuant to
E-mail: Robert.Willis@doj.ca.gov Government Code, § 6103
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Attorneys for Proposed Amicius Curaie California
8 State Lands Commission for itself and ex rel. the
State of California
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11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SANTA BARBARA
13
14 EUGENE DAVIS, in his capacity as Case No. 16-CV-01319
Liquidating Trustee of the VENOCO
15 EX PARTE APPLICATION OF THE
LIQUIDATING TRUST,
CALIFORNIA STATE LANDS
16 COMMISSION FOR LEAVE TO APPEAR
Plaintiff, AND FILE BRIEF AS AMICUS CURIAE
17 RE: PLAINS PIPELINE, L.P.’S MOTION
vs. IN LIMINE NUMBERS 1 AND 2;
18 MEMORANDUM IN SUPPORT;
PLAINS PIPELINE, L.P., a Texas limited DECLARATION OF ROBERT WILLIS;
19 [PROPOSED] ORDER
Partnership, et al.,
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Defendants. EX PARTE HEARING:
21
Date: January 17, 2024
22 Time: 8:30 a.m.
Dept.: Five
23 Judge: Hon. Colleen K. Sterne
24 Trial Date: March 11, 2024
25 Action Filed: April 1, 2016
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APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEFS
004
1 TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE, that on January 17, 2024 at 8:30 a.m., or as soon thereafter as
3 the matter may be heard, in Department 5 of the California Superior Courthouse located at 1100
4 Anacapa St, Santa Barbara, CA 93101, California State Lands Commission for itself and ex rel. the
5 State of California (the Commission) will apply, ex parte, for an order allowing it to file the attached
6 amicus briefs (Exhibit A and Exhibit B) in opposition to (i) Defendants’ Motion in Limine No. 1 to
7 Exclude Evidence of Plains’s Control Room Alarms and Activity and (ii) Defendants’ Motion in
8 Limine No. 2 to Exclude Reference to Criminal Conduct (collectively, Plains’ Motions in Limine). 1
9 Plains’ Motions in Limine are presently set for hearing on February 9, 2024. By this ex parte
10 application, the Commission also seeks permission – in advance – to file responses to any other
11 motion in limine that are heard on February 9, 2024 within seven calendar days after such motions
12 in limine are filed.
13 This Ex Parte Application is brought on the grounds that the Commission is presently
14 litigating a civil action (Case No. 18CV02504) before this Court against the defendants, Plains
15 Pipeline, L.P., et al. (Plains), that has many overlapping contentions about Plains’ negligence and
16 criminality. The Court’s rulings on Plains’ Motions in Limine are likely to have a non-binding
17 precedential effect on any similar motions Plains files in the Commission’s case. As reflected in
18 the attached amicus briefs the Commission has a few non-duplicative arguments for the Court to
19 consider in determining whether to grant or deny Plains’ Motions in Limine. The Court has inherent
20 authority to allow amicus briefs on any matters before it. (Code of Civil Proc., § 128(a)(3) [“Every
21 court shall have the power to do all of the following: . . . (3) To provide for the orderly conduct of
22 proceedings before it, or its officers.”]; In re Marriage Cases (2008) 43 Cal.4th 757, 791 fn. 10
23 [“the superior court, in exercising its traditional broad discretion over the conduct of pending
24 litigation, retain[s] the authority to determine the manner and extent of . . . participation as amici
25 curiae that would be of most assistance to the court”].),
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Parties might be able to participate remotely in the hearing by logging into
28 www.zoomgov.com/j, meeting ID: 161 505 3019 Passcode: 2509581
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EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF
005
1 Pursuant to Rule 3.1201 of the California Rules of Court, in support of the Application, the
2 Department submits (i) the attached proof of service, (ii) the attached Declaration of Robert Willis
3 in support of the Application (the Willis Decl.), (iii) the attached memorandum in support, and
4 (iv) an accompanying proposed order.
5 For its Application, the Commission represents as follows:
6 CRC Rule 3.1202(a) – Identification of Attorneys or Parties.
7 The defendants in this civil action are PLAINS PIPELINE, L.P., a Texas limited
8 partnership; PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware limited partnership;
9 PLAINS GP HOLDINGS, L.P., a Delaware limited partnership; PLAINS AAP, L.P., a Delaware
10 limited partnership; PLAINS ALL AMERICAN GP LLC, a Delaware limited liability company;
11 PAA GP LLC, a Delaware limited liability company. (Willis Decl. ¶ 3.) The plaintiff in this civil
12 action is EUGENE DAVIS, in his capacity as Liquidating Trustee of the Venoco Liquidating Trust.
13 (Ibid.) The attorneys for the parties are as follows:
14 Brad D. Brian, Esq.- R. Paul Yetter, Esq. -
brad.brian@mto.com pyetter@yettercoleman.com
15 Henry Weissmann, Esq.- Timothy S. McConn, Esq. -
henry.weissmann@mto.com tmcconn@yettercoleman.com
16 Daniel B. Levin, Esq. - Tracy N. LeRoy, Esq. -
daniel.levin@mto.com tleroy@yettercoleman.com
17 Grant A. Davis-Denny, Esq. - Samantha Richey, Esq. -
Grant.davis-denny@mto.com srichey@yettercoleman.com
18 Robyn K. Bacon, Esq. - Audrey Hendricks, Esq. -
robyn.bacon@mto.com ahendricks@yettercoleman.com
19 Colin A. Devine, Esq. - Luke Schamel, Esq. -
colin.devine@mto.com lschamel@yettercoleman.com
20 Shannon Aminirad, Esq. - YETTER COLEMAN LLP
shannon.aminirad@mto.com 811 Main Street, Suite 4100
21 Abe Dyk, Esq. – Houston, Texas 77002
abe.dyk@mto.com (713) 632.8000
22 John Major, Esq. – Attorneys for Plaintiff Venoco, LLC and Davis
John.Major@mto.com
23 MUNGER, TOLLES & OLSON LLP Brian Klein, Esq. -
350 South Grand Avenue, 50th Floor bklein@waymakerlaw.com
24 Los Angeles, CA 90071-3426 Jaime Marquart, Esq. -
(213) 683-9100 jmarquart@waymakerlaw.com
25 Attorneys for Defendants WAYMAKER LLP
515 S Flower St., Ste 3500,
26 Craig S. Granet, Esq. - Los Angeles, CA 90071
Craig.granet@rimonlaw.com (424) 652-7800
27 RIMON, P.C. Attorneys for Plaintiff Venoco, LLC and Davis
200 E. Carrillo St, Suite 201
28 Santa Barbara, California 93101
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EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF
006
1 (805) 695-4080
Attorney for Defendants
2
3 (Id. ¶ 4.) Proper notice of the ex parte application was given to all parties on January 11, 2024.
4 (Id., ¶ 5.)
5 Rule 3.1202(b) – Disclosure.
6 There has been no prior ex parte application asking the Court to allow the Commission to
7 file an amicus brief in the above-referenced civil action. (Willis Decl., ¶ 8.) However, in response
8 to Venoco’s ex parte application, the Court granted Venoco permission to file an amicus brief in
9 the Commission’s civil action.
10 Rule 3.1202(c) – Factual Showing for Ex Parte Relief.
11 Ex parte relief is required because, if this request were heard on regular notice, it would not
12 be ruled on until after the hearing on Plains’ Motions in Limine. (Willis Decl. ¶ 7.)
13 WHEREFORE, the California State Lands Commission respectfully requests leave to
14 appear and file the attached briefs as amicus curiae in the above-entitled action.
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16 Respectfully submitted,
Dated: January 11, 2024 ROB BONTA
17 Attorney General of California
BRIAN D. WESLEY
18 Supervising Deputy Attorney General
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By:
21 ROBERT R. WILLIS, Deputy Attorney General
Attorneys for California State Lands Commission
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EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF
007
1 MEMORANDUM IN SUPPORT
2 I. FACTS
3 1. Applicant, the Commission, is a plaintiff in a similar lawsuit against the same
4 defendants, California State Lands Commission, et al. v. Plains Pipeline, L.P. et al., Case No.
5 18CV02504. The lawsuits arise out of the same basic events (the rupture and spill of Line 901 near
6 Refugio Beach). Both cases are assigned to the Honorable Colleen K. Sterne. Discovery in the
7 two cases has been coordinated. Trial in Case No. 16CV01319 is set for March 11, 2024. Trial in
8 Case No. 18CV02504 is set for July 24, 2024.
9 2. Plains’ Motion in Limine No. 1 seeks to prevent Venoco from presenting evidence
10 concerning Plains’ failure to detect the rupture of Line 901 and shut down the pipeline until at least
11 35 minutes after it ruptured (referred to as “control room activities”). The negligent control room
12 activities include inhibiting an alarm that sounded soon after the rupture and restarting the pipeline
13 after the rupture occurred. Plains did not shut down its pipeline until 30 minutes after this initial
14 alarm sounded (and was disabled). Just like the Venoco Trustee, the Commission alleges that
15 Plains’ control-room negligence may have harmed it and, in any event, demonstrate a callous
16 pattern of conduct related to pipeline safety in Santa Barbara.
17 3. Plains’ Motion in Limine No. 2 seeks to bar Venoco from introducing evidence
18 regarding the criminal case or referencing it at trial. Just like the Venoco Trustee, the Commission
19 intends to reference materials that Plains’ experts submitted in the criminal restitution proceeding
20 in its trial against Plains; and Plains’ experts have said (in their expert reports in Case 19CV02504)
21 that they intend to testify about the Commission’s experts prior testimony in the restitution case.
22 Without the ability to – at the very least -- reference the criminal proceeding, any testimony from
23 these witnesses would be misleading and unfair.
24 4. Because Plains’ Motions in Limine concern evidentiary disputes that are also at
25 issue in case 18CV02504 (which is pending before the same judge), the Court’s ruling on Plains’
26 Motions in Limine will likely be treated as persuasive (albeit nonbinding) precedent on any similar
27 evidentiary motions Plains’ files in Case 18CV02504. To avoid potential prejudice to the
28 Commission and to give the Court a more complete picture of the evidentiary dispute, the
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EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF
008
1 Commission requests leave to file amicus briefs addressing Plains’ Motions in Limine.
2 5. The Commission’s proposed amicus brief for Plains’ Motion in Limine No. 1
3 (related to the control room issues) is attached as Exhibit A. Its proposed amicus brief for Plains’
4 Motion in Limine No. 2 (related to the Plains criminal trial) is attached as Exhibit B. These briefs
5 contain short, non-duplicative arguments as to why the Court should deny Plains’ Motions in
6 Limine. The hearing on Plains’ motions in limine is presently scheduled for February 9, 2024.
7 II. LAW
8 The Ex Parte Application is brought on the grounds that the Commission is presently
9 litigating Case No. 18CV02504 before this Court against the Plains that has many overlapping
10 contentions about Plains’ negligence and criminality. The Court’s rulings on Plains’ Motions in
11 Limine in this case are likely to have a non-binding precedential effect on any similar motions
12 Plains files in the Commission’s case. As reflected in the attached amicus briefs the Commission
13 has a few non-duplicative arguments for the Court to consider in determining whether to grant or
14 deny Plains’ Motions in Limine.
15 The Court has inherent authority to allow amicus briefs on any matters before it. Code of
16 Civil Procedure, section 128, subdivision (a) provides, “Every court shall have the power to do all
17 of the following: . . . (3) To provide for the orderly conduct of proceedings before it, or its officers.”
18 This power to provide for the orderly conduct of proceedings includes giving the Superior Court
19 “broad discretion” to “determine the manner and extent of . . . participation as amici curiae that
20 would be of most assistance to the court.” (In re Marriage Cases (2008) 43 Cal.4th 757, 791.)
21 Indeed, the Supreme Court has encourages the participation of amicus curiae “Amicus curiae
22 presentations assist the court by broadening its perspective on the issues raised by the parties.
23 Among other services, they facilitate informed judicial consideration of a wide variety of
24 information and points of view that may bear on important legal questions. For these reasons, we
25 are inclined, except in cases of obvious abuse of the amicus curiae privilege, not to employ orders
26 to strike as a means of regulating their contents.”
27 The Court should allow the Commission’s amicus brief because (i) the Commission has an
28 obvious interest in defeating them to avoid any precedential influence in its similar case and (ii) its
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EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF
009
1 very short amicus briefs offer valid, non-duplicative arguments as to why the Court should deny
2 Plains’ Motions in Limine.
3 Rule 3.1201 provides, “A request for ex parte relief must be in writing and must include all
4 of the following: (1) An application containing the case caption and stating the relief requested;
5 (2) A declaration in support of the application making the factual showing required under rule
6 3.1202(c); (3) A declaration based on personal knowledge of the notice given under rule 3.1204;
7 (4) A memorandum; and (5) A proposed order.” Each of these documents are filed herewith.
8 Rule 3.1202 of the California rules of Court provides:
9 (a) Identification of attorney or party. An ex parte application must state the name,
address, e-mail address, and telephone number of any attorney known to the applicant
10 to be an attorney for any party or, if no such attorney is known, the name, address, e-
mail address, and telephone number of the party if known to the applicant.
11
(b) Disclosure of previous applications. If an ex parte application has been refused in
12 whole or in part, any subsequent application of the same character or for the same relief,
although made upon an alleged different state of facts, must include a full disclosure of
13 all previous applications and of the court's actions.
14 (c) Affirmative factual showing required. An applicant must make an affirmative factual
showing in a declaration containing competent testimony based on personal knowledge
15 of irreparable harm, immediate danger, or any other statutory basis for granting relief
ex parte
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17 The Commission’s ex parte application provides all of the information required by Rule 3.1202.
18 III. CONCLUSION
19 The Court should grant the Commission’s Application and allow it to file amicus briefs.
20 Respectfully Submitted,
21 Dated: January 11, 2024 ROB BONTA
22 Attorney General of California
BRIAN D. WESLEY
23 Supervising Deputy Attorney General
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By:
26 ROBERT R. WILLIS, Deputy Attorney General
Attorneys for California State Lands Commission
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EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF
010
1 DECLARATION OF ROBERT WILLIS
2 I, Robert Willis, declare as follows:
3 1. I am over 18 years old. I am employed by the California Department of Justice | Office
4 of the Attorney General as a Deputy Attorney General. I know the facts set forth below from
5 personal knowledge.
6 2. I am counsel to the California State Lands Commission (the Commission) in the civil
7 action titled California State Lands Commission, et al. v. Plains Pipeline, L.P. et al., Case No.
8 18CV02504 (Case 18CV02504), which arises out of the same basic events (the rupture and spill of
9 Line 901 near Refugio Beach) as the above-captioned civil action. Both civil actions are assigned
10 to the Honorable Colleen K. Sterne. Discovery in the two cases has been coordinated. Trial in
11 Case No. 16CV01319 is set for March 11, 2024. Trial in Case No. 18CV02504 is set for July 24,
12 2024.
13 3. The defendants in this matter are PLAINS PIPELINE, L.P., a Texas limited
14 partnership; PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware limited partnership;
15 PLAINS GP HOLDINGS, L.P., a Delaware limited partnership; PLAINS AAP, L.P., a Delaware
16 limited partnership; PLAINS ALL AMERICAN GP LLC, a Delaware limited liability company;
17 PAA GP LLC, a Delaware limited liability company. The plaintiff in this action is EUGENE
18 DAVIS, in his capacity as Liquidating Trustee of the Venoco Liquidating Trust.
19 4. The attorneys for the parties in the above-captioned civil actions are as follows:
20 Brad D. Brian, Esq.- R. Paul Yetter, Esq. -
brad.brian@mto.com pyetter@yettercoleman.com
21 Henry Weissmann, Esq.- Timothy S. McConn, Esq. -
henry.weissmann@mto.com tmcconn@yettercoleman.com
22 Daniel B. Levin, Esq. - Tracy N. LeRoy, Esq. -
daniel.levin@mto.com tleroy@yettercoleman.com
23 Grant A. Davis-Denny, Esq. - Samantha Richey, Esq. -
Grant.davis-denny@mto.com srichey@yettercoleman.com
24 Robyn K. Bacon, Esq. - Audrey Hendricks, Esq. -
robyn.bacon@mto.com ahendricks@yettercoleman.com
25 Colin A. Devine, Esq. - Luke Schamel, Esq. -
colin.devine@mto.com lschamel@yettercoleman.com
26 Shannon Aminirad, Esq. - YETTER COLEMAN LLP
shannon.aminirad@mto.com 811 Main Street, Suite 4100
27 Abe Dyk, Esq. – Houston, Texas 77002
abe.dyk@mto.com (713) 632.8000
28 John Major, Esq. – Attorneys for Plaintiff Venoco, LLC and Davis
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EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF
011
1 John.Major@mto.com
MUNGER, TOLLES & OLSON LLP Brian Klein, Esq. -
2 350 South Grand Avenue, 50th Floor bklein@waymakerlaw.com
Los Angeles, CA 90071-3426 Jaime Marquart, Esq. -
3 (213) 683-9100 jmarquart@waymakerlaw.com
Attorneys for Defendants WAYMAKER LLP
4 515 S Flower St., Ste 3500,
Craig S. Granet, Esq. - Los Angeles, CA 90071
5 Craig.granet@rimonlaw.com (424) 652-7800
RIMON, P.C. Attorneys for Plaintiff Venoco, LLC and Davis
6 200 E. Carrillo St, Suite 201
Santa Barbara, California 93101
7 (805) 695-4080
Attorney for Defendants
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9 5. I gave proper notice of the ex parte application to all parties on January 11, 2024
10 by email. In my email I attached the proposed amicus briefs and indicated that, on behalf of the
11 Commission, I would seek permission to file the amicus briefs. Attached hereto as Exhibit “C” is
12 a true and correct copy of the email notice sent to all counsel on this matter.
13 6. I have reviewed the two motions in limine filed by Plains, which are set for hearing
14 on February 9, 2024. Plains’ Motion in Limine No. 1 seeks to prevent Venoco from presenting
15 evidence concerning Plains’ failure to detect the rupture of Line 901 and shut down the pipeline
16 until at least 35 minutes after it ruptured (referred to as “control room activities”). The negligent
17 control room activities include inhibiting an alarm that sounded soon after the rupture and restarting
18 the pipeline after the rupture occurred. Plains did not shut down its pipeline until 30 minutes after
19 this initial alarm sounded (and was disabled). Just like the Venoco Trustee, the Commission alleges
20 that Plains’ control-room negligence may have harmed it and, in any event, demonstrate a callous
21 pattern of conduct related to pipeline safety in Santa Barbara. Plains’ Motion in Limine No. 2
22 seeks to bar Venoco from introducing evidence regarding the criminal case or referencing it at trial.
23 Just like the Venoco Trustee, the Commission intends to reference materials that Plains’ experts
24 submitted in the criminal restitution proceeding in its trial against Plains; and Plains’ experts have
25 said (in their expert reports in Case 19CV02504) that they intend to testify about the Commission’s
26 experts prior testimony in the restitution case. Without the ability to – at the very least – reference
27 the criminal proceeding, any testimony from these witnesses would be misleading and unfair.
28 7. Our office has called the Court’s calendar clerk about scheduling a hearing on
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EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF
012
1 motion to file an amicus brief in this case. Based on that call I understand that, if this request were
2 heard on regular notice, it would not be heard until after the hearing on Plains’ Motions in Limine,
3 which is currently scheduled for February 9, 2024.
4 8. There has been no prior ex parte application asking the Court to allow the
5 Commission to file an amicus brief in the above-referenced civil action.
6 9. Attached hereto as Exhibit “A” and “B” are true and correct copies of the briefs that
7 the California State Lands Commission intends to file.
8 I declare under penalty of perjury under the laws of the State of California that the
9 foregoing is true and correct.
10
11 Date January 11, 2024
12 Robert Willis
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EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF
013
EXHIBIT A
014
1 ROB BONTA
Attorney General of California
2 BRIAN D. WESLEY
Supervising Deputy Attorney General
3 MICHAEL T. ZARRO, State Bar No. 110171
ROBERT R. WILLIS, State Bar No. 258898 Exempt from filing fees pursuant to
4 MATTHEW C. HEYN, State Bar No. 227474 Government Code, § 6103
Deputy Attorneys General
5 300 S. Spring Street, Suite 1702
Los Angeles, CA 90013
6 Telephone: (213) 269-6232
E-mail: Matthew.Heyn@doj.ca.gov
7
Attorneys for Plaintiff California State Lands
8 Commission for itself and ex rel. the State of
California
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10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SANTA BARBARA
13
14 EUGENE DAVIS, in his capacity as Case No. 16-CV-01319
Liquidating Trustee of the VENOCO
15 AMICUS CURIAE CALIFORNIA STATE
LIQUIDATING TRUST,
LANDS COMMISSION’S BRIEF RE:
16 PLAINS PIPELINE, L.P.’S MOTION IN
Plaintiff, LIMINE NUMBER 1; DECLARATION
17 OF ROBERT R. WILLIS
vs.
18
PLAINS PIPELINE, L.P., et al., Date: February 9, 2024
19 Time: 8:45 a.m.
Defendants. Dept.: 5
20 Judge: Hon. Colleen K. Sterne
21
Trial Date: March 11, 2024
22 Action Filed: April 1, 2016
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AMICUS OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 1
015
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 On May 19, 2015, Plains’ Line 901, a 24-inch subterranean oil pipeline, ruptured near
4 Refugio State Beach, spilling 140,000 gallons of crude oil, much of which poured into the Pacific
5 Ocean (“the Spill”). The Spill sparked various lawsuits, including the instant case by the Venoco
6 Trustee (Santa Barbara Superior Case No. 16-CV-01319) and a separate case brought by the
7 California State Lands Commission (Santa Barbara Superior Court Case No. 18-CV-02504).
8 Plains’ Motion in Limine Number 1 seeks to preclude certain evidence of negligence and
9 damages that is at issue in both actions. Specifically, Plains seeks to exclude evidence relating to
10 its control room operations leading up to the time of the incident and shortly thereafter. PHMSA
11 found, and the Plaintiffs’ experts will testify, that the control room’s “lack of timely detection of
12 and response to the rupture” of Line 901 was a “[c]ontributory [c]ause” of the Spill. (See PHMSA
13 Report pp. 14-15, at Venoco Opposition - Hendr. Decl. Ex. 1.) Moreover, Plains inhibited an alarm
14 that sounded soon after the rupture of Line 901 and restarted a Line 901 pump after the rupture had
15 already occurred. (Id.) And Plains did not shut down Line 901 until over 30 minutes after this
16 alarm sounded (and was disabled). Evidence at trial will show that it was not until 12:30 p.m. (an
17 hour later) that Plains dispatched a worker to do a visual inspection of line 901 and, despite its plan
18 calling for notifying the National Response Center within an hour of a spill, Plains did not contact
19 the National Response Center until 2:56 p.m., 89 minutes after its employees saw oil leaking from
20 Line 901. (Willis Decl., at Exhibit “A,” Cameron Report, Pgs. 101-109.)
21 Plains argues that evidence of control room operations (and, presumably its other mistakes
22 after the rupture) are irrelevant to Venoco’s claims and would waste time and risk jury confusion
23 of the issues. It points to its expert who asserts that, based on his “model,” he believes that most of
24 the oil that left Line 901 would have spilled anyway, whether or not Plains properly operated its
25 control room. Plains argues that the size and extent of the damages caused by the spill could not
26 have damaged Venoco. Venoco disagrees, arguing that the failure to timely respond to the Spill
27 and limit its size caused additional damages beyond the rupture itself. The size of the Spill impacted
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AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1
016
1 the Santa Barbara community, special interest groups, and the government, which harmed
2 Venoco’s prospects for restarting its operations.
3 The Commission joins Venoco’s positions on these legal issues. The jury should be allowed
4 to hear the evidence for holding Plains fully accountable for its negligence. Plains’ control room
5 activities are directly relevant to understanding the volume of oil spilled, the limited and slow
6 response to the alarms, the resultant damages, and the parties’ claims. In addition, evidence of
7 Plains’ control room activities is evidence that is directly relevant to the issue of punitive damages.
8 Plains’ motion should be denied.
9 II. LEGAL STANDARD
10 A motion in limine permits pretrial consideration of evidentiary issues expected to arise at
11 trial. Regardless of whether a motion in limine is granted or denied, the ruling is necessarily
12 tentative because subsequent developments in the case may change the context and require a
13 different outcome in later proceedings or at trial. (People v. Rodrigues (1994) 8 Cal. 4th 1060,
14 1174; Rufo v. Simpson (2001) 86 Cal. App. 4th 573, 608–609; see Cristler v. Express Messenger
15 Systems, Inc. (2009) 171 Cal. App. 4th 72.)
16 A motion in limine may seek to exclude irrelevant evidence (e.g., Ulloa v. McMillin Real
17 Estate & Mortg. (2007) 149 Cal. App. 4th 333.) However, a motion in limine should not be used
18 to seek summary adjudication of an issue or issues. (See Amtower v. Photon Dynamics, Inc. (2008)
19 158 Cal.App.4th 1582, at 1593-1595.) Such motions may only be made in compliance with Code
20 of Civil Procedure Section 437c and court rules pertaining thereto. (Ibid.) Further, a trial court
21 cannot exclude evidence that is directly relevant to the primary issues of the litigation because the
22 evidence is prejudicial to the opponent. (Kelly v. New West Federal Savings. (1996) 49 Cal.App.4th
23 659, 674). "Denying a party the right to testify or to offer evidence is reversible per se. [citations]"
24 (Id. at 677).
25 III. PLAINS’ CONTROL ROOM ACTIVITIES ARE DIRECTLY RELEVANT TO
26 NEGLIGENCE LIABILITY
27 There is direct evidence that Plains’ control room activities were negligent. Both PHMSA
28 and Plaintiffs’ expert are prepared to testify that Plains should not have disabled its alarms or
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AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1
017
1 restarted Line 901 after it ruptured. (Willis Decl., at Exhibit “A,” at Cameron Report, Pgs. 101-
2 109.) Furthermore, had Plains timely shut down operations the potential volume release of barrels
3 would have been slower and could have provided additional time to respond in order to lessen the
4 impact the spill.
5 Plains should not be able to utilize a motion in limine as a summary adjudication motion to
6 prevent the presentation of evidence that will be adverse to its case, regardless of whether Plains
7 categorizes the evidence as “prejudicial.” Plains assumes that, because its expert can testify that
8 “if the control room had shut down the line the moment the spill began, it would have reduced the
9 overall spill volume from approximately 3,000 barrels to approximately 2,250 barrels” no rational
10 jury could disbelieve him or conclude that the extra 750 barrels of oil that leaked could have harmed
11 Venoco. (Plains motion, at page 2, lines 11-14.) However, this presumes too much. There will be
12 evidence at trial that had Plains not acted negligently in its control room operations the volume of
13 the release would have been lower and the release itself slower, which could have provided
14 additional time to respond and lessen the impact of the spill. Plains should not be able to utilize a
15 motion in limine to claim that control room activities should be precluded from jury consideration
16 simply because it is adverse to its case.
17 A party is entitled to the "legitimate force and effect of material evidence." (Fuentes v.
18 Tucker (1947) 131 Cal.2d 1, 7.) The jury should be allowed to review the relevant evidence and
19 conclude for itself how large the Spill might have been if Plains would have acted diligently, how
20 far the oil would have traveled with less volume, and whether the community and political response
21 to the Spill would have been as significant if Plains would have acted quickly and stopped the
22 spilled oil from reaching the Pacific. Further, common sense dictates that an oil spill in the Pacific
23 that kills marine life is treated with much greater seriousness than an oil spill that is dealt with
24 quickly and without reaching the ocean or killing any marine life. Evidence and argument will be
25 presented at trial on this point and the jury should be able to hear it.
26 Plains’ motion lacks direct legal authority for its position that the control room activities
27 should be precluded from jury consideration. Plains cites to the case of Wilson v. Southern Cal.
28 Edison Co. (2018) 21 Cal.App.5th 786 (Wilson) for support that such evidence should be precluded.
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AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1
018
1 However, as argued by Venoco, Wilson does not provide the legal support to prevent the
2 presentation of direct negligence in a negligence action. (Venoco Opposition to MIL, at page 4-5.)
3 The reasoning of Wilson was limited to the jury’s consideration of other incidents in relation to a
4 nuisance case. Here, the control room evidence relates to the negligence claim and specifically to
5 the rupture of Line 901 and the damages that flowed from it, which is the very crux of this lawsuit.
6 The control room claim and related evidence does not relate to other pipelines or even other
7 incidents on Line 901. It relates to the one and only incident that is the subject of this lawsuit.
8 Because Plains denies that its negligence caused the rupture it thereby tenders the issue for
9 consideration. Consequently, Wilson is not applicable or instructive on this issue.
10 Additionally, and contrary to Plains’ arguments, the control room evidence and claims do
11 not add significant complexity or time to the action that would represent an undue burden to warrant
12 preclusion pursuant to Evidence Code section 352. Plains estimates that it would need to call an
13 additional 2-5 witnesses to respond to this issue. However, this does not represent the type of added
14 complexity or burden that would outweigh the presentation of these claims to the jury. Lastly,
15 Plains’ argument that it would complicate an already complicated case is not a sufficient legal basis
16 to preclude evidence of negligence under Evidence Code section 352. (Guardianship of Simpson
17 (1998) 67 Cal. App. 4th 914, at 921. [“Judges cannot avoid the single most important and relevant
18 issue in a case…just because trying that issue will take time. The standard is whether the
19 consumption of time is "undue."].)
20 Evidence that Plains’ control room negligently operated Line 901 leading up to and after
21 the rupture is directly relevant to both the Venoco and Commission actions. Moreover, Plains’
22 negligent response and control room activities could have averted additional barrels from spilling,
23 and consequently, the court should not grant Plains’ motion in limine.
24 IV. THE CONTROL ROOM EVIDENCE IS DIRECTLY RELEVANT TO DAMAGES
25 The control room activities are also relevant to punitive damages. When considering
26 punitive damages “[a] defendant's entire course of conduct may be considered for purposes of
27 assessing punitive damage awards, including post-injury conduct.” (Echeverria v. Johnson &
28 Johnson (2019) 37 Cal.App.5th 292, 338; Butte Fire Cases (2018) 24 Cal.App.5th 1150, at 1176;
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AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1
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1 Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 399-401.)
2 Evidence will be presented at trial that will show the entire course of conduct by the Plains,
3 including the control room activities and events leading up to the spill, as well as the post incident
4 response. This is precisely the type of evidence that is relevant when considering punitive damages
5 and Plains cannot reasonably claim that such evidence should be precluded from jury consideration.
6 Plains’ control room failures are directly relevant to the parties’ claims for punitive damages.
7 Plains’ motion should be denied.
8 V. CONCLUSION
9 Based on the above, amicus curiae Commission respectfully requests that this Court deny
10 Plains’ Motion in Limine No. 1.
11
12 Dated: January 11, 2024 ROB BONTA
Attorney General of California
13 BRIAN D. WESLEY
Supervising Deputy Attorney General
14 MICHAEL T. ZARRO
ROBERT R. WILLIS
15 MATTHEW C. HEYN
Deputy Attorneys General
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17 By:
ROBERT R. WILLIS
18 Deputy Attorney General
Attorneys for Plaintiff California State Lands
19 Commission
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AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1
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1 DECLARATION OF ROBERT R. WILLIS
2 I, Robert R. Willis, declare as follows:
3 1. I am over 18 years old. I am counsel to the California State Lands Commission (the
4 Commission) in the civil action titled California State Lands Commission, et al. v. Plains
5 Pipeline, L.P. et al., Case No. 18CV02504, which had coordinated discovery with the above-
6 captioned civil action. Based on my representation of the Commission, I have personal, first-
7 hand knowledge of the facts set forth below.
8 2. Attached hereto as Exhibit “A” is a true and correct copy of the selected portions of
9 expert Dr. Kimberly Cameron, at pages 91-109.
10
11 I declare under penalty of perjury under the laws of the State of California that the foregoing is
12 true and correct.
13 Date: January 11, 2024
14 Robert R. Willis
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AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1
021
EXHIBIT A
022
Investigative Report
California State Lands Commission v. Plains All American
Pipeline
ESi Project No: 87313W
CONFIDENTIAL
023
15235 Alton Parkway, Suite 120
Irvine, CA 92618
ESi
Investigative Report
California State Lands Commission v. Plains All
American Pipeline
ESi Project No: 87313W
Submitted by:
September 29, 2023
Kimberly K. Cameron, Ph.D., P.E. Date
Principal
CA M P.E. 33732 I Expires: June 30, 2025
CA MT P.E. 1969 I Expires: March 31, 2024
This report and its contents are the Work Product of Engineering Systems Inc. (ESi). This report should only be duplicated
or distributed in its entirety. This report may contain confidential or court protected infor
Preview
1 HENRY WEISSMANN (State Bar No. 132418) henry.weissmann@mto.com 2 DANIEL B. LEVIN (State Bar No. 226044) daniel.levin@mto.com 3 ROBYN K. BACON (State Bar No. 251048) robyn.bacon@mto.com 4 COLIN A. DEVINE (State Bar No. 315801) CRAIG S. GRANET colin.devine@mto.com (State Bar Number: 71020) 5 MUNGER, TOLLES & OLSON LLP craig.granet@rimonlaw.com 350 South Grand Avenue, 50th Floor RIMON, P.C. 6 Los Angeles, California 90071-3426 200 East Carrillo Street, Suite 201 Telephone: (213) 683-9100 Santa Barbara, California 93101 7 Facsimile: (213) 687-3702 Telephone: (805) 695-4080 8 Attorneys for Defendants 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SANTA BARBARA, ANACAPA DIVISION 11 12 CALIFORNIA STATE LANDS Case No. 18CV02504 13 COMMISSION, an agency of the State of California, et al., DECLARATION OF JOHN B. MAJOR IN 14 SUPPORT OF DEFENDANTS’ MOTION Plaintiffs, FOR LEAVE TO FILE MOTION FOR 15 SUMMARY ADJUDICATION vs. 16 Hearing PLAINS PIPELINE, L.P., a Texas Limited Date: May 10, 2024 17 Partnership, et al., Time: 9:00 AM Dept.: 5 18 Defendant. Judge: Hon. Colleen K. Sterne 19 Action Filed: May 18, 2018 Trial Date: Oct. 7, 2024 20 21 I, John B. Major, declare as follows: 22 1. I am over the age of 18 and legally competent to make this declaration. I am an 23 attorney with Munger, Tolles & Olson LLP in Los Angeles, California. I have personal 24 knowledge of the facts set forth in this declaration, and, if called as a witness, I could and would 25 testify competently to the matters set forth herein. 26 2. I spoke with counsel for the California State Lands Commission and the State of 27 California, Matthew Heyn, by telephone on March 6, 2024. During that call, I requested that 28 Plaintiffs stipulate that the Court’s order granting Defendants’ motion for summary adjudication Case No. 18CV02504 DECL. OF JOHN B. MAJOR IN SUPPORT OF DEFS.’ MOT. FOR LEAVE 1 as to punitive damages in Davis v. Plains Pipeline, L.P., 16-CV-1319 (“Venoco”), applies equally 2 to this case. Mr. Heyn indicated that Plaintiffs were unwilling to so stipulate. 3 3. Attached hereto as Exhibit 1 is a true and correct copy of the Ex Parte Application 4 of the California State Lands Commission for Leave to File an Amicus Brief, filed in Venoco and 5 dated January 11, 2024. 6 4. Attached hereto as Exhibit 2 is a true and correct copy of Plaintiff California State 7 Lands Commission’s Statement Regarding Trial Continuance and Non-consolidation, filed in this 8 matter and dated November 14, 2023. 9 10 DATED: April 18, 2024 MUNGER, TOLLES & OLSON LLP 11 12 By: 13 JOHN B. MAJOR 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- DECLARATION OF JOHN B. MAJOR IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE EXHIBIT 1 003 1 ROB BONTA Attorney General of California 2 BRIAN D. WESLEY Supervising Deputy Attorney General 3 MICHAEL T. ZARRO, State Bar No. 110171 MATTHEW C. HEYN, State Bar No. 227474 4 ROBERT R. WILLIS, State Bar No. 258898 Deputy Attorneys General 5 300 S. Spring Street, Suite 1702 Los Angeles, CA 90013 6 Telephone: (213) 269-6232 Exempt from filing fees pursuant to E-mail: Robert.Willis@doj.ca.gov Government Code, § 6103 7 Attorneys for Proposed Amicius Curaie California 8 State Lands Commission for itself and ex rel. the State of California 9 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SANTA BARBARA 13 14 EUGENE DAVIS, in his capacity as Case No. 16-CV-01319 Liquidating Trustee of the VENOCO 15 EX PARTE APPLICATION OF THE LIQUIDATING TRUST, CALIFORNIA STATE LANDS 16 COMMISSION FOR LEAVE TO APPEAR Plaintiff, AND FILE BRIEF AS AMICUS CURIAE 17 RE: PLAINS PIPELINE, L.P.’S MOTION vs. IN LIMINE NUMBERS 1 AND 2; 18 MEMORANDUM IN SUPPORT; PLAINS PIPELINE, L.P., a Texas limited DECLARATION OF ROBERT WILLIS; 19 [PROPOSED] ORDER Partnership, et al., 20 Defendants. EX PARTE HEARING: 21 Date: January 17, 2024 22 Time: 8:30 a.m. Dept.: Five 23 Judge: Hon. Colleen K. Sterne 24 Trial Date: March 11, 2024 25 Action Filed: April 1, 2016 26 27 28 1 APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEFS 004 1 TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE, that on January 17, 2024 at 8:30 a.m., or as soon thereafter as 3 the matter may be heard, in Department 5 of the California Superior Courthouse located at 1100 4 Anacapa St, Santa Barbara, CA 93101, California State Lands Commission for itself and ex rel. the 5 State of California (the Commission) will apply, ex parte, for an order allowing it to file the attached 6 amicus briefs (Exhibit A and Exhibit B) in opposition to (i) Defendants’ Motion in Limine No. 1 to 7 Exclude Evidence of Plains’s Control Room Alarms and Activity and (ii) Defendants’ Motion in 8 Limine No. 2 to Exclude Reference to Criminal Conduct (collectively, Plains’ Motions in Limine). 1 9 Plains’ Motions in Limine are presently set for hearing on February 9, 2024. By this ex parte 10 application, the Commission also seeks permission – in advance – to file responses to any other 11 motion in limine that are heard on February 9, 2024 within seven calendar days after such motions 12 in limine are filed. 13 This Ex Parte Application is brought on the grounds that the Commission is presently 14 litigating a civil action (Case No. 18CV02504) before this Court against the defendants, Plains 15 Pipeline, L.P., et al. (Plains), that has many overlapping contentions about Plains’ negligence and 16 criminality. The Court’s rulings on Plains’ Motions in Limine are likely to have a non-binding 17 precedential effect on any similar motions Plains files in the Commission’s case. As reflected in 18 the attached amicus briefs the Commission has a few non-duplicative arguments for the Court to 19 consider in determining whether to grant or deny Plains’ Motions in Limine. The Court has inherent 20 authority to allow amicus briefs on any matters before it. (Code of Civil Proc., § 128(a)(3) [“Every 21 court shall have the power to do all of the following: . . . (3) To provide for the orderly conduct of 22 proceedings before it, or its officers.”]; In re Marriage Cases (2008) 43 Cal.4th 757, 791 fn. 10 23 [“the superior court, in exercising its traditional broad discretion over the conduct of pending 24 litigation, retain[s] the authority to determine the manner and extent of . . . participation as amici 25 curiae that would be of most assistance to the court”].), 26 27 1 Parties might be able to participate remotely in the hearing by logging into 28 www.zoomgov.com/j, meeting ID: 161 505 3019 Passcode: 2509581 2 EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF 005 1 Pursuant to Rule 3.1201 of the California Rules of Court, in support of the Application, the 2 Department submits (i) the attached proof of service, (ii) the attached Declaration of Robert Willis 3 in support of the Application (the Willis Decl.), (iii) the attached memorandum in support, and 4 (iv) an accompanying proposed order. 5 For its Application, the Commission represents as follows: 6 CRC Rule 3.1202(a) – Identification of Attorneys or Parties. 7 The defendants in this civil action are PLAINS PIPELINE, L.P., a Texas limited 8 partnership; PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware limited partnership; 9 PLAINS GP HOLDINGS, L.P., a Delaware limited partnership; PLAINS AAP, L.P., a Delaware 10 limited partnership; PLAINS ALL AMERICAN GP LLC, a Delaware limited liability company; 11 PAA GP LLC, a Delaware limited liability company. (Willis Decl. ¶ 3.) The plaintiff in this civil 12 action is EUGENE DAVIS, in his capacity as Liquidating Trustee of the Venoco Liquidating Trust. 13 (Ibid.) The attorneys for the parties are as follows: 14 Brad D. Brian, Esq.- R. Paul Yetter, Esq. - brad.brian@mto.com pyetter@yettercoleman.com 15 Henry Weissmann, Esq.- Timothy S. McConn, Esq. - henry.weissmann@mto.com tmcconn@yettercoleman.com 16 Daniel B. Levin, Esq. - Tracy N. LeRoy, Esq. - daniel.levin@mto.com tleroy@yettercoleman.com 17 Grant A. Davis-Denny, Esq. - Samantha Richey, Esq. - Grant.davis-denny@mto.com srichey@yettercoleman.com 18 Robyn K. Bacon, Esq. - Audrey Hendricks, Esq. - robyn.bacon@mto.com ahendricks@yettercoleman.com 19 Colin A. Devine, Esq. - Luke Schamel, Esq. - colin.devine@mto.com lschamel@yettercoleman.com 20 Shannon Aminirad, Esq. - YETTER COLEMAN LLP shannon.aminirad@mto.com 811 Main Street, Suite 4100 21 Abe Dyk, Esq. – Houston, Texas 77002 abe.dyk@mto.com (713) 632.8000 22 John Major, Esq. – Attorneys for Plaintiff Venoco, LLC and Davis John.Major@mto.com 23 MUNGER, TOLLES & OLSON LLP Brian Klein, Esq. - 350 South Grand Avenue, 50th Floor bklein@waymakerlaw.com 24 Los Angeles, CA 90071-3426 Jaime Marquart, Esq. - (213) 683-9100 jmarquart@waymakerlaw.com 25 Attorneys for Defendants WAYMAKER LLP 515 S Flower St., Ste 3500, 26 Craig S. Granet, Esq. - Los Angeles, CA 90071 Craig.granet@rimonlaw.com (424) 652-7800 27 RIMON, P.C. Attorneys for Plaintiff Venoco, LLC and Davis 200 E. Carrillo St, Suite 201 28 Santa Barbara, California 93101 3 EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF 006 1 (805) 695-4080 Attorney for Defendants 2 3 (Id. ¶ 4.) Proper notice of the ex parte application was given to all parties on January 11, 2024. 4 (Id., ¶ 5.) 5 Rule 3.1202(b) – Disclosure. 6 There has been no prior ex parte application asking the Court to allow the Commission to 7 file an amicus brief in the above-referenced civil action. (Willis Decl., ¶ 8.) However, in response 8 to Venoco’s ex parte application, the Court granted Venoco permission to file an amicus brief in 9 the Commission’s civil action. 10 Rule 3.1202(c) – Factual Showing for Ex Parte Relief. 11 Ex parte relief is required because, if this request were heard on regular notice, it would not 12 be ruled on until after the hearing on Plains’ Motions in Limine. (Willis Decl. ¶ 7.) 13 WHEREFORE, the California State Lands Commission respectfully requests leave to 14 appear and file the attached briefs as amicus curiae in the above-entitled action. 15 16 Respectfully submitted, Dated: January 11, 2024 ROB BONTA 17 Attorney General of California BRIAN D. WESLEY 18 Supervising Deputy Attorney General 19 20 By: 21 ROBERT R. WILLIS, Deputy Attorney General Attorneys for California State Lands Commission 22 23 24 25 26 27 28 4 EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF 007 1 MEMORANDUM IN SUPPORT 2 I. FACTS 3 1. Applicant, the Commission, is a plaintiff in a similar lawsuit against the same 4 defendants, California State Lands Commission, et al. v. Plains Pipeline, L.P. et al., Case No. 5 18CV02504. The lawsuits arise out of the same basic events (the rupture and spill of Line 901 near 6 Refugio Beach). Both cases are assigned to the Honorable Colleen K. Sterne. Discovery in the 7 two cases has been coordinated. Trial in Case No. 16CV01319 is set for March 11, 2024. Trial in 8 Case No. 18CV02504 is set for July 24, 2024. 9 2. Plains’ Motion in Limine No. 1 seeks to prevent Venoco from presenting evidence 10 concerning Plains’ failure to detect the rupture of Line 901 and shut down the pipeline until at least 11 35 minutes after it ruptured (referred to as “control room activities”). The negligent control room 12 activities include inhibiting an alarm that sounded soon after the rupture and restarting the pipeline 13 after the rupture occurred. Plains did not shut down its pipeline until 30 minutes after this initial 14 alarm sounded (and was disabled). Just like the Venoco Trustee, the Commission alleges that 15 Plains’ control-room negligence may have harmed it and, in any event, demonstrate a callous 16 pattern of conduct related to pipeline safety in Santa Barbara. 17 3. Plains’ Motion in Limine No. 2 seeks to bar Venoco from introducing evidence 18 regarding the criminal case or referencing it at trial. Just like the Venoco Trustee, the Commission 19 intends to reference materials that Plains’ experts submitted in the criminal restitution proceeding 20 in its trial against Plains; and Plains’ experts have said (in their expert reports in Case 19CV02504) 21 that they intend to testify about the Commission’s experts prior testimony in the restitution case. 22 Without the ability to – at the very least -- reference the criminal proceeding, any testimony from 23 these witnesses would be misleading and unfair. 24 4. Because Plains’ Motions in Limine concern evidentiary disputes that are also at 25 issue in case 18CV02504 (which is pending before the same judge), the Court’s ruling on Plains’ 26 Motions in Limine will likely be treated as persuasive (albeit nonbinding) precedent on any similar 27 evidentiary motions Plains’ files in Case 18CV02504. To avoid potential prejudice to the 28 Commission and to give the Court a more complete picture of the evidentiary dispute, the 5 EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF 008 1 Commission requests leave to file amicus briefs addressing Plains’ Motions in Limine. 2 5. The Commission’s proposed amicus brief for Plains’ Motion in Limine No. 1 3 (related to the control room issues) is attached as Exhibit A. Its proposed amicus brief for Plains’ 4 Motion in Limine No. 2 (related to the Plains criminal trial) is attached as Exhibit B. These briefs 5 contain short, non-duplicative arguments as to why the Court should deny Plains’ Motions in 6 Limine. The hearing on Plains’ motions in limine is presently scheduled for February 9, 2024. 7 II. LAW 8 The Ex Parte Application is brought on the grounds that the Commission is presently 9 litigating Case No. 18CV02504 before this Court against the Plains that has many overlapping 10 contentions about Plains’ negligence and criminality. The Court’s rulings on Plains’ Motions in 11 Limine in this case are likely to have a non-binding precedential effect on any similar motions 12 Plains files in the Commission’s case. As reflected in the attached amicus briefs the Commission 13 has a few non-duplicative arguments for the Court to consider in determining whether to grant or 14 deny Plains’ Motions in Limine. 15 The Court has inherent authority to allow amicus briefs on any matters before it. Code of 16 Civil Procedure, section 128, subdivision (a) provides, “Every court shall have the power to do all 17 of the following: . . . (3) To provide for the orderly conduct of proceedings before it, or its officers.” 18 This power to provide for the orderly conduct of proceedings includes giving the Superior Court 19 “broad discretion” to “determine the manner and extent of . . . participation as amici curiae that 20 would be of most assistance to the court.” (In re Marriage Cases (2008) 43 Cal.4th 757, 791.) 21 Indeed, the Supreme Court has encourages the participation of amicus curiae “Amicus curiae 22 presentations assist the court by broadening its perspective on the issues raised by the parties. 23 Among other services, they facilitate informed judicial consideration of a wide variety of 24 information and points of view that may bear on important legal questions. For these reasons, we 25 are inclined, except in cases of obvious abuse of the amicus curiae privilege, not to employ orders 26 to strike as a means of regulating their contents.” 27 The Court should allow the Commission’s amicus brief because (i) the Commission has an 28 obvious interest in defeating them to avoid any precedential influence in its similar case and (ii) its 6 EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF 009 1 very short amicus briefs offer valid, non-duplicative arguments as to why the Court should deny 2 Plains’ Motions in Limine. 3 Rule 3.1201 provides, “A request for ex parte relief must be in writing and must include all 4 of the following: (1) An application containing the case caption and stating the relief requested; 5 (2) A declaration in support of the application making the factual showing required under rule 6 3.1202(c); (3) A declaration based on personal knowledge of the notice given under rule 3.1204; 7 (4) A memorandum; and (5) A proposed order.” Each of these documents are filed herewith. 8 Rule 3.1202 of the California rules of Court provides: 9 (a) Identification of attorney or party. An ex parte application must state the name, address, e-mail address, and telephone number of any attorney known to the applicant 10 to be an attorney for any party or, if no such attorney is known, the name, address, e- mail address, and telephone number of the party if known to the applicant. 11 (b) Disclosure of previous applications. If an ex parte application has been refused in 12 whole or in part, any subsequent application of the same character or for the same relief, although made upon an alleged different state of facts, must include a full disclosure of 13 all previous applications and of the court's actions. 14 (c) Affirmative factual showing required. An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge 15 of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte 16 17 The Commission’s ex parte application provides all of the information required by Rule 3.1202. 18 III. CONCLUSION 19 The Court should grant the Commission’s Application and allow it to file amicus briefs. 20 Respectfully Submitted, 21 Dated: January 11, 2024 ROB BONTA 22 Attorney General of California BRIAN D. WESLEY 23 Supervising Deputy Attorney General 24 25 By: 26 ROBERT R. WILLIS, Deputy Attorney General Attorneys for California State Lands Commission 27 28 7 EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF 010 1 DECLARATION OF ROBERT WILLIS 2 I, Robert Willis, declare as follows: 3 1. I am over 18 years old. I am employed by the California Department of Justice | Office 4 of the Attorney General as a Deputy Attorney General. I know the facts set forth below from 5 personal knowledge. 6 2. I am counsel to the California State Lands Commission (the Commission) in the civil 7 action titled California State Lands Commission, et al. v. Plains Pipeline, L.P. et al., Case No. 8 18CV02504 (Case 18CV02504), which arises out of the same basic events (the rupture and spill of 9 Line 901 near Refugio Beach) as the above-captioned civil action. Both civil actions are assigned 10 to the Honorable Colleen K. Sterne. Discovery in the two cases has been coordinated. Trial in 11 Case No. 16CV01319 is set for March 11, 2024. Trial in Case No. 18CV02504 is set for July 24, 12 2024. 13 3. The defendants in this matter are PLAINS PIPELINE, L.P., a Texas limited 14 partnership; PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware limited partnership; 15 PLAINS GP HOLDINGS, L.P., a Delaware limited partnership; PLAINS AAP, L.P., a Delaware 16 limited partnership; PLAINS ALL AMERICAN GP LLC, a Delaware limited liability company; 17 PAA GP LLC, a Delaware limited liability company. The plaintiff in this action is EUGENE 18 DAVIS, in his capacity as Liquidating Trustee of the Venoco Liquidating Trust. 19 4. The attorneys for the parties in the above-captioned civil actions are as follows: 20 Brad D. Brian, Esq.- R. Paul Yetter, Esq. - brad.brian@mto.com pyetter@yettercoleman.com 21 Henry Weissmann, Esq.- Timothy S. McConn, Esq. - henry.weissmann@mto.com tmcconn@yettercoleman.com 22 Daniel B. Levin, Esq. - Tracy N. LeRoy, Esq. - daniel.levin@mto.com tleroy@yettercoleman.com 23 Grant A. Davis-Denny, Esq. - Samantha Richey, Esq. - Grant.davis-denny@mto.com srichey@yettercoleman.com 24 Robyn K. Bacon, Esq. - Audrey Hendricks, Esq. - robyn.bacon@mto.com ahendricks@yettercoleman.com 25 Colin A. Devine, Esq. - Luke Schamel, Esq. - colin.devine@mto.com lschamel@yettercoleman.com 26 Shannon Aminirad, Esq. - YETTER COLEMAN LLP shannon.aminirad@mto.com 811 Main Street, Suite 4100 27 Abe Dyk, Esq. – Houston, Texas 77002 abe.dyk@mto.com (713) 632.8000 28 John Major, Esq. – Attorneys for Plaintiff Venoco, LLC and Davis 8 EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF 011 1 John.Major@mto.com MUNGER, TOLLES & OLSON LLP Brian Klein, Esq. - 2 350 South Grand Avenue, 50th Floor bklein@waymakerlaw.com Los Angeles, CA 90071-3426 Jaime Marquart, Esq. - 3 (213) 683-9100 jmarquart@waymakerlaw.com Attorneys for Defendants WAYMAKER LLP 4 515 S Flower St., Ste 3500, Craig S. Granet, Esq. - Los Angeles, CA 90071 5 Craig.granet@rimonlaw.com (424) 652-7800 RIMON, P.C. Attorneys for Plaintiff Venoco, LLC and Davis 6 200 E. Carrillo St, Suite 201 Santa Barbara, California 93101 7 (805) 695-4080 Attorney for Defendants 8 9 5. I gave proper notice of the ex parte application to all parties on January 11, 2024 10 by email. In my email I attached the proposed amicus briefs and indicated that, on behalf of the 11 Commission, I would seek permission to file the amicus briefs. Attached hereto as Exhibit “C” is 12 a true and correct copy of the email notice sent to all counsel on this matter. 13 6. I have reviewed the two motions in limine filed by Plains, which are set for hearing 14 on February 9, 2024. Plains’ Motion in Limine No. 1 seeks to prevent Venoco from presenting 15 evidence concerning Plains’ failure to detect the rupture of Line 901 and shut down the pipeline 16 until at least 35 minutes after it ruptured (referred to as “control room activities”). The negligent 17 control room activities include inhibiting an alarm that sounded soon after the rupture and restarting 18 the pipeline after the rupture occurred. Plains did not shut down its pipeline until 30 minutes after 19 this initial alarm sounded (and was disabled). Just like the Venoco Trustee, the Commission alleges 20 that Plains’ control-room negligence may have harmed it and, in any event, demonstrate a callous 21 pattern of conduct related to pipeline safety in Santa Barbara. Plains’ Motion in Limine No. 2 22 seeks to bar Venoco from introducing evidence regarding the criminal case or referencing it at trial. 23 Just like the Venoco Trustee, the Commission intends to reference materials that Plains’ experts 24 submitted in the criminal restitution proceeding in its trial against Plains; and Plains’ experts have 25 said (in their expert reports in Case 19CV02504) that they intend to testify about the Commission’s 26 experts prior testimony in the restitution case. Without the ability to – at the very least – reference 27 the criminal proceeding, any testimony from these witnesses would be misleading and unfair. 28 7. Our office has called the Court’s calendar clerk about scheduling a hearing on 9 EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF 012 1 motion to file an amicus brief in this case. Based on that call I understand that, if this request were 2 heard on regular notice, it would not be heard until after the hearing on Plains’ Motions in Limine, 3 which is currently scheduled for February 9, 2024. 4 8. There has been no prior ex parte application asking the Court to allow the 5 Commission to file an amicus brief in the above-referenced civil action. 6 9. Attached hereto as Exhibit “A” and “B” are true and correct copies of the briefs that 7 the California State Lands Commission intends to file. 8 I declare under penalty of perjury under the laws of the State of California that the 9 foregoing is true and correct. 10 11 Date January 11, 2024 12 Robert Willis 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 EX PARTE APPLICATION FOR LEAVE TO APPEAR AND FILE AMICUS BRIEF 013 EXHIBIT A 014 1 ROB BONTA Attorney General of California 2 BRIAN D. WESLEY Supervising Deputy Attorney General 3 MICHAEL T. ZARRO, State Bar No. 110171 ROBERT R. WILLIS, State Bar No. 258898 Exempt from filing fees pursuant to 4 MATTHEW C. HEYN, State Bar No. 227474 Government Code, § 6103 Deputy Attorneys General 5 300 S. Spring Street, Suite 1702 Los Angeles, CA 90013 6 Telephone: (213) 269-6232 E-mail: Matthew.Heyn@doj.ca.gov 7 Attorneys for Plaintiff California State Lands 8 Commission for itself and ex rel. the State of California 9 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SANTA BARBARA 13 14 EUGENE DAVIS, in his capacity as Case No. 16-CV-01319 Liquidating Trustee of the VENOCO 15 AMICUS CURIAE CALIFORNIA STATE LIQUIDATING TRUST, LANDS COMMISSION’S BRIEF RE: 16 PLAINS PIPELINE, L.P.’S MOTION IN Plaintiff, LIMINE NUMBER 1; DECLARATION 17 OF ROBERT R. WILLIS vs. 18 PLAINS PIPELINE, L.P., et al., Date: February 9, 2024 19 Time: 8:45 a.m. Defendants. Dept.: 5 20 Judge: Hon. Colleen K. Sterne 21 Trial Date: March 11, 2024 22 Action Filed: April 1, 2016 23 24 25 26 27 28 1 AMICUS OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 1 015 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 On May 19, 2015, Plains’ Line 901, a 24-inch subterranean oil pipeline, ruptured near 4 Refugio State Beach, spilling 140,000 gallons of crude oil, much of which poured into the Pacific 5 Ocean (“the Spill”). The Spill sparked various lawsuits, including the instant case by the Venoco 6 Trustee (Santa Barbara Superior Case No. 16-CV-01319) and a separate case brought by the 7 California State Lands Commission (Santa Barbara Superior Court Case No. 18-CV-02504). 8 Plains’ Motion in Limine Number 1 seeks to preclude certain evidence of negligence and 9 damages that is at issue in both actions. Specifically, Plains seeks to exclude evidence relating to 10 its control room operations leading up to the time of the incident and shortly thereafter. PHMSA 11 found, and the Plaintiffs’ experts will testify, that the control room’s “lack of timely detection of 12 and response to the rupture” of Line 901 was a “[c]ontributory [c]ause” of the Spill. (See PHMSA 13 Report pp. 14-15, at Venoco Opposition - Hendr. Decl. Ex. 1.) Moreover, Plains inhibited an alarm 14 that sounded soon after the rupture of Line 901 and restarted a Line 901 pump after the rupture had 15 already occurred. (Id.) And Plains did not shut down Line 901 until over 30 minutes after this 16 alarm sounded (and was disabled). Evidence at trial will show that it was not until 12:30 p.m. (an 17 hour later) that Plains dispatched a worker to do a visual inspection of line 901 and, despite its plan 18 calling for notifying the National Response Center within an hour of a spill, Plains did not contact 19 the National Response Center until 2:56 p.m., 89 minutes after its employees saw oil leaking from 20 Line 901. (Willis Decl., at Exhibit “A,” Cameron Report, Pgs. 101-109.) 21 Plains argues that evidence of control room operations (and, presumably its other mistakes 22 after the rupture) are irrelevant to Venoco’s claims and would waste time and risk jury confusion 23 of the issues. It points to its expert who asserts that, based on his “model,” he believes that most of 24 the oil that left Line 901 would have spilled anyway, whether or not Plains properly operated its 25 control room. Plains argues that the size and extent of the damages caused by the spill could not 26 have damaged Venoco. Venoco disagrees, arguing that the failure to timely respond to the Spill 27 and limit its size caused additional damages beyond the rupture itself. The size of the Spill impacted 28 2 AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1 016 1 the Santa Barbara community, special interest groups, and the government, which harmed 2 Venoco’s prospects for restarting its operations. 3 The Commission joins Venoco’s positions on these legal issues. The jury should be allowed 4 to hear the evidence for holding Plains fully accountable for its negligence. Plains’ control room 5 activities are directly relevant to understanding the volume of oil spilled, the limited and slow 6 response to the alarms, the resultant damages, and the parties’ claims. In addition, evidence of 7 Plains’ control room activities is evidence that is directly relevant to the issue of punitive damages. 8 Plains’ motion should be denied. 9 II. LEGAL STANDARD 10 A motion in limine permits pretrial consideration of evidentiary issues expected to arise at 11 trial. Regardless of whether a motion in limine is granted or denied, the ruling is necessarily 12 tentative because subsequent developments in the case may change the context and require a 13 different outcome in later proceedings or at trial. (People v. Rodrigues (1994) 8 Cal. 4th 1060, 14 1174; Rufo v. Simpson (2001) 86 Cal. App. 4th 573, 608–609; see Cristler v. Express Messenger 15 Systems, Inc. (2009) 171 Cal. App. 4th 72.) 16 A motion in limine may seek to exclude irrelevant evidence (e.g., Ulloa v. McMillin Real 17 Estate & Mortg. (2007) 149 Cal. App. 4th 333.) However, a motion in limine should not be used 18 to seek summary adjudication of an issue or issues. (See Amtower v. Photon Dynamics, Inc. (2008) 19 158 Cal.App.4th 1582, at 1593-1595.) Such motions may only be made in compliance with Code 20 of Civil Procedure Section 437c and court rules pertaining thereto. (Ibid.) Further, a trial court 21 cannot exclude evidence that is directly relevant to the primary issues of the litigation because the 22 evidence is prejudicial to the opponent. (Kelly v. New West Federal Savings. (1996) 49 Cal.App.4th 23 659, 674). "Denying a party the right to testify or to offer evidence is reversible per se. [citations]" 24 (Id. at 677). 25 III. PLAINS’ CONTROL ROOM ACTIVITIES ARE DIRECTLY RELEVANT TO 26 NEGLIGENCE LIABILITY 27 There is direct evidence that Plains’ control room activities were negligent. Both PHMSA 28 and Plaintiffs’ expert are prepared to testify that Plains should not have disabled its alarms or 3 AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1 017 1 restarted Line 901 after it ruptured. (Willis Decl., at Exhibit “A,” at Cameron Report, Pgs. 101- 2 109.) Furthermore, had Plains timely shut down operations the potential volume release of barrels 3 would have been slower and could have provided additional time to respond in order to lessen the 4 impact the spill. 5 Plains should not be able to utilize a motion in limine as a summary adjudication motion to 6 prevent the presentation of evidence that will be adverse to its case, regardless of whether Plains 7 categorizes the evidence as “prejudicial.” Plains assumes that, because its expert can testify that 8 “if the control room had shut down the line the moment the spill began, it would have reduced the 9 overall spill volume from approximately 3,000 barrels to approximately 2,250 barrels” no rational 10 jury could disbelieve him or conclude that the extra 750 barrels of oil that leaked could have harmed 11 Venoco. (Plains motion, at page 2, lines 11-14.) However, this presumes too much. There will be 12 evidence at trial that had Plains not acted negligently in its control room operations the volume of 13 the release would have been lower and the release itself slower, which could have provided 14 additional time to respond and lessen the impact of the spill. Plains should not be able to utilize a 15 motion in limine to claim that control room activities should be precluded from jury consideration 16 simply because it is adverse to its case. 17 A party is entitled to the "legitimate force and effect of material evidence." (Fuentes v. 18 Tucker (1947) 131 Cal.2d 1, 7.) The jury should be allowed to review the relevant evidence and 19 conclude for itself how large the Spill might have been if Plains would have acted diligently, how 20 far the oil would have traveled with less volume, and whether the community and political response 21 to the Spill would have been as significant if Plains would have acted quickly and stopped the 22 spilled oil from reaching the Pacific. Further, common sense dictates that an oil spill in the Pacific 23 that kills marine life is treated with much greater seriousness than an oil spill that is dealt with 24 quickly and without reaching the ocean or killing any marine life. Evidence and argument will be 25 presented at trial on this point and the jury should be able to hear it. 26 Plains’ motion lacks direct legal authority for its position that the control room activities 27 should be precluded from jury consideration. Plains cites to the case of Wilson v. Southern Cal. 28 Edison Co. (2018) 21 Cal.App.5th 786 (Wilson) for support that such evidence should be precluded. 4 AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1 018 1 However, as argued by Venoco, Wilson does not provide the legal support to prevent the 2 presentation of direct negligence in a negligence action. (Venoco Opposition to MIL, at page 4-5.) 3 The reasoning of Wilson was limited to the jury’s consideration of other incidents in relation to a 4 nuisance case. Here, the control room evidence relates to the negligence claim and specifically to 5 the rupture of Line 901 and the damages that flowed from it, which is the very crux of this lawsuit. 6 The control room claim and related evidence does not relate to other pipelines or even other 7 incidents on Line 901. It relates to the one and only incident that is the subject of this lawsuit. 8 Because Plains denies that its negligence caused the rupture it thereby tenders the issue for 9 consideration. Consequently, Wilson is not applicable or instructive on this issue. 10 Additionally, and contrary to Plains’ arguments, the control room evidence and claims do 11 not add significant complexity or time to the action that would represent an undue burden to warrant 12 preclusion pursuant to Evidence Code section 352. Plains estimates that it would need to call an 13 additional 2-5 witnesses to respond to this issue. However, this does not represent the type of added 14 complexity or burden that would outweigh the presentation of these claims to the jury. Lastly, 15 Plains’ argument that it would complicate an already complicated case is not a sufficient legal basis 16 to preclude evidence of negligence under Evidence Code section 352. (Guardianship of Simpson 17 (1998) 67 Cal. App. 4th 914, at 921. [“Judges cannot avoid the single most important and relevant 18 issue in a case…just because trying that issue will take time. The standard is whether the 19 consumption of time is "undue."].) 20 Evidence that Plains’ control room negligently operated Line 901 leading up to and after 21 the rupture is directly relevant to both the Venoco and Commission actions. Moreover, Plains’ 22 negligent response and control room activities could have averted additional barrels from spilling, 23 and consequently, the court should not grant Plains’ motion in limine. 24 IV. THE CONTROL ROOM EVIDENCE IS DIRECTLY RELEVANT TO DAMAGES 25 The control room activities are also relevant to punitive damages. When considering 26 punitive damages “[a] defendant's entire course of conduct may be considered for purposes of 27 assessing punitive damage awards, including post-injury conduct.” (Echeverria v. Johnson & 28 Johnson (2019) 37 Cal.App.5th 292, 338; Butte Fire Cases (2018) 24 Cal.App.5th 1150, at 1176; 5 AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1 019 1 Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 399-401.) 2 Evidence will be presented at trial that will show the entire course of conduct by the Plains, 3 including the control room activities and events leading up to the spill, as well as the post incident 4 response. This is precisely the type of evidence that is relevant when considering punitive damages 5 and Plains cannot reasonably claim that such evidence should be precluded from jury consideration. 6 Plains’ control room failures are directly relevant to the parties’ claims for punitive damages. 7 Plains’ motion should be denied. 8 V. CONCLUSION 9 Based on the above, amicus curiae Commission respectfully requests that this Court deny 10 Plains’ Motion in Limine No. 1. 11 12 Dated: January 11, 2024 ROB BONTA Attorney General of California 13 BRIAN D. WESLEY Supervising Deputy Attorney General 14 MICHAEL T. ZARRO ROBERT R. WILLIS 15 MATTHEW C. HEYN Deputy Attorneys General 16 17 By: ROBERT R. WILLIS 18 Deputy Attorney General Attorneys for Plaintiff California State Lands 19 Commission 20 21 22 23 24 25 26 27 28 6 AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1 020 1 DECLARATION OF ROBERT R. WILLIS 2 I, Robert R. Willis, declare as follows: 3 1. I am over 18 years old. I am counsel to the California State Lands Commission (the 4 Commission) in the civil action titled California State Lands Commission, et al. v. Plains 5 Pipeline, L.P. et al., Case No. 18CV02504, which had coordinated discovery with the above- 6 captioned civil action. Based on my representation of the Commission, I have personal, first- 7 hand knowledge of the facts set forth below. 8 2. Attached hereto as Exhibit “A” is a true and correct copy of the selected portions of 9 expert Dr. Kimberly Cameron, at pages 91-109. 10 11 I declare under penalty of perjury under the laws of the State of California that the foregoing is 12 true and correct. 13 Date: January 11, 2024 14 Robert R. Willis 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 AMICUS BRIEF RE DEFENDANT’S MOTION IN LIMINE NO. 1 021 EXHIBIT A 022 Investigative Report California State Lands Commission v. Plains All American Pipeline ESi Project No: 87313W CONFIDENTIAL 023 15235 Alton Parkway, Suite 120 Irvine, CA 92618 ESi Investigative Report California State Lands Commission v. Plains All American Pipeline ESi Project No: 87313W Submitted by: September 29, 2023 Kimberly K. Cameron, Ph.D., P.E. Date Principal CA M P.E. 33732 I Expires: June 30, 2025 CA MT P.E. 1969 I Expires: March 31, 2024 This report and its contents are the Work Product of Engineering Systems Inc. (ESi). This report should only be duplicated or distributed in its entirety. This report may contain confidential or court protected infor