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F Superior Court of California F
XAVIER BECERRA County of Butte
Attomey General of Califomia | |
PETER A. MESHOT
Supervising Deputy Attomey General 1/22/2019 L
LEEANN E. WHITMORE
D Atto General D
State Bar No. 214870 By eyo “KGa Depi uty
1300 I Street, Suite 125 Electronically FILED
P.O. Box 944255
Sacramento, CA 94244-2550.
Telephone: (916) 210-7515
Fax: (916) 322-8288
Attorneys for Defendant
Department of Forestry and Fire Protection
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF BUTTE
11 CIVIL DIVISION
12
13
DUDLEYS' EXCAVATING Case No. 16CV00883
14 INCORPORATED, a California
corporation; and WALBERG, INC.,a DECLARATION OF LEEANN
15 California corporation, WHITMORE IN SUPPORT OF
OPPOSITION TO PLAINTIFFS’
16 Plaintiffs, DUDLEYS’ EXCAVATING’S AND
WALBERG’S MOTIONS TO COMPEL
17 FURTHER RESPONSES TO REQUEST
FOR ADMISSION, SET ONE AND
18 REQUEST FOR SANCTIONS
CALIFORNIA DEPARTMENT OF
19 FORESTRY AND FIRE PROTECTION, a Date: February 6, 2019
Public Entity; and DOES 1 to 100, inclusive, Time: 9:00am.
20 i TBA
Defendant. Hon. TamaraL. M
21 Thi Date: June 24, 2019
Action Filed: June 9, 2016
22
23
24. I, LeeAnn E. Whitmore declare:
25 1. [aman attomey at law admitted
to practice before all courts
of the State
of Califomia. I
26 ama Deputy Attomey General of the State of Califomia. In that capacity, I have been assignedto
27 represent the State of Califomia, by and through, the Department
of Forestry and Fire Protection
28 (“CAL FIRE”) as a Defendant in this action. Ihave personal knowledge of the matters set forth
Decl. of LeeAnn Whitmore in Support of Opposition
to Plaintiffs’ Motions to Compel Further Responses to Request
for Admissions (16CV00883)
in this declaration and if called to testify could testify competently thereto. This declaration is
served in response to Plaintiff Dudley’ s Excavating and Walberg’ s request for admissions which.
contained virtually identical requests except for substituting Walberg or Dudley’ s for the
damaged
dozer in the requests.
2. On November 21, 2018, our office served CAL FIRE’s verified responses to request for
admissions. It was necessary to obtain extensions to respond to discovery because of my pre-
scheduled vacation in late October and CAL FIRE’s involvement defending the Camp Fire. We
also provided responses to request for production of documents which included a portion of CAL
FIRE’s operations which included a portion regarding Firefighting Operations which defined
10 separate and distinct firefighting tactics “BURNING OUT” and “BACKFIRE”. A true and
11 correct copy of the document produced designated as State 008867 and State 008868 is attached.
12 as ExhibitA. Based on this document and discussions
with CAL FIRE personnel as to what
13 firing operation was conducted on September 14, 2015, I objected that plaintiff’ s requests which
14 discussed “BACKFIRE” with her definition were vague. Irrespective of the definition, CAL
15 FIRE denied that it performed
a backfire. CAL FIRE also denies
that any of its actions damaged
16 plaintiff’ s equipment.
17 3. On December 11, 2018, prior to the depositions of two of CAL FIRE’s person most
18 knowledgeable, James Derington and Brent Stangland, plaintiff’s attomey advised that she was
19 going to send me a meet and confer letter on the discovery responses unless we agreed that the
20 tem “backfire” could be interchanged with other terminology. I advised that I would not agree to
21 this and would respond
to a meet and confer letter. James Demington
was the person who
22 performed a firing operation. A true and correct copy of relevant portions of his testimony are
23 attached
as Exhibit B.
24. 4. After the CAL FIRE depositions I sent a meet and confer letter advising of CAL FIRE’s
25 intention to file a motion for summary judgment based on the emergency exception to inverse
26 condemnation and intention to seek fees and costs under Code of Civil Procedure section 1038.
27 Our office had previously sent a similar letter prior to the filing of the motion for judgment on the
28 Pleadings, which was granted in CAL FIRE’s favor.
Decl. of LeeAnn Whitmore in Support of Opposition
to Plaintiffs’ Motionsto Compel Further Responses
to Request
for Admissions (16CV00883)
5. On December 27, 2018, plaintiff's attorney set two virtually identical letters via e-mail
to meet and confer on the identical sets of discovery she served on behalf of each plaintiff. I was
out of the office and my e-mail sent automatically replies advising that I would be out until
January 2, 2019. As acourtesy, on December 28, 2018, I would respond to the letter when I
returned. I sent plaintiffs counsel a response to the meet and confer letter on January 2, 2019
outlining the reasons for the objections to the various discovery. A true and correct copy of the
letter is attached as Exhibit C. Plaintiff's attorney did not contact me in response to this letter.
6. Darren Read was deposed on January 3, 2019. He was not produced as the person most
knowledgeable regarding firing operations, nor did he sign the verifications to discovery on
10 behalf of CAL FIRE. Mr. Read’s deposition concluded at approximately 7:00 p.m. At the
11 deposition, I informed plaintiff's attorney that I would be in a hearing the morning of January 4,
12 2019.
13 7. On January 4, 2019, plaintiff's attorney sent an e-mail at 8:24 a.m. seeking amended
14 responses to the request for admissions. After, I returned to my office after the hearing, I advised
15 that I would not change the responses. I advised that I would be available to speak on January 7,
16 2018. A true and correct copy of the e-mail is attached as Exhibit C. I did not receive a response
17 from plaintiffs counsel.
18 8. Ihave been an attorney for 17 years. The Office of the Attorney General charges $170
19 an hour for work performed by me in this case. I have spent approximately two hours preparing
20 the opposition papers for this motion for a total of $340. I anticipate spending an additional hour
21 reviewing the reply papers and four hours traveling to and attending the hearing which would the
22 bring the total cost to CAL FIRE of $850. This would bring the total fees to $1,190.
23 I declare under penalty of perjury under the laws of the State of California that the
24 foregoing is true and correct. Executed this Ala day of January 2019, at Sacramento,
25 California.
26
27
Mb.
LeeAnn E. Whitmore
28
3
Decl. of LeeAnn Whitmore in Support of Opposition to Plaintiffs’ Motions to Compel Further Responses to Request
for Admissions (16CV00883)
EXHIBIT A
° Clear work area at base of tree
° Determine primary and alternate escape routes
. Walk out intended lay of tree
. Ensure area is clear of personnel
Once the assessment has been made the supervisor will assure the
following is addressed and briefed on:
. A safety briefing shall be conducted once the assessment has
been made.
A lookout will be posted when work begins.
Wedges will be used as needed,
A warning will be called out when the tree begins to falll.
After the tree has fallen, the area will be assessed for hazards
caused by the falling tree.
REMEMBER! No person should fell-any tree that is larger or
more complicated than they are comfortable with, or their training
has prepared and certified them for.
FIRING OPERATIONS 7013.4
(October 2002)
The utilization of the appropriate strategy and tactics is extremely
important in determining the outcome of suppressing a wildland fire,
On larger, hotter fires the strategy of choice is often an indirect attack,
In addition to hoselays, hand lines, dozer lines, and retardant lines,
the use of backfire and burning out are tactical considerations
frequently used. The use of fighting fire with fire is very common in
wildland firefighting; however, it requires a great deal more
coordination and fire ground experience than the other tactical
choices. Knowing when and how to properly execute a burning out or
backfire operation can result in the rapid control of a major fire with the
use of limited resources. Indecision and poor timing by Incident
Commanders can compromise safety; produce escapes that rapidly
increase the advancement of the fire and create other incident related
problems.
\ DEFINITION:
BURNING OUT - (FIRING OUT, BLACK LINING) — Setting fire inside
a control line to consume fuel between the edge of the fire and the
control line, when the main fire is not.an immediate threat. Control
lines can be constructed fire line, roads, driveways, stream or dry
creek bottoms, wet linés or foam lines.
| Burning out has the following uses:
t
t . Improve completed fireline.
| . Eliminate fingers of fire by cutting directly across each tip of fire,
Create safety zones.
7013-12
State 008867
“
. Combine spot fires.
. Reduce mop-up.
BACKFIRE — A fire set to spread against the influence of wind and |1
slope in order to widen the burn zone ahead of the main fire. The
desired effect is to slow or stop a fast moving, high-intensity fire from. I
overrunning an established fireline.
Conditions that warrant backfire are:
. Rapid rate of spread of the main fire.
. Fire intensity is too severe for direct attack.
°
dt
There Is an Immediate thréat to life or property.
Direct attack not possible because of inaccessible terrain,
LEGAL AUTHORITY 7013.4.1
(October 2002)
Public Resources Code 4426 — A person shall not set a backfire, or
cause a backfire tobe set, except under the direct supervision or
permission of a state or federal forest officer, unless it can be
established that the setting of such backfire was necessary for the
purpose of saving life or valuable property.
Health and Safety Code 41801 — Nothing in this article shall be
construed as limiting the authority granted under the provisions of law
to any public officer to set or permit a fire when such a fire Is, in
his/her opinion, necessary for any of the following purposes:
. The prevention of a fire hazard that cannot be abated by any
other means.
The instruction of public employees in the methods of firefighting.
The instruction of employees in methods of firefighting, when
such fire is set, pursuant to permit, on property used for industrial
purposes.
The setting of backfires necessary to save life or valuable
property pursuant to Section 4426 of the Public Resources Code.
The abatement of fire hazards pursuant to Section 13055,
Disease or pest prevention, where there is an immediate need for
and no reasonable alternative to burning.
Heaith and Safety Code 13055 — Any public agency authorized to
engage in fire protection activities, including but not limited to a fire
protection district, city, county fire department, the Department of
Forestry and Fire Protection, and the United States Forest Service,
may use fire to abate a fire hazard,
7013-13
State 008868
EXHIBIT B
12/11/2018 DERINGTON JAMES
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF BUTTE
DUDLEYS' EXCAVATING, INCORPORATED,) Case No.
a California corporation; and ) 16CV00883
WALBERG, INC., a California
corporation,
Plaintiffs,
vs.
CALIFORNIA DEPARTMENT OF FORESTRY
AND FIRE PROTECTION, a Public
Entity; and DOES 1 to 100,
inclusive,
Defendants.
Deposition of
JAMES DERINGTON
Tuesday, December 11, 2018
Reported by: Erin Worley, CSR #13139
Carol Nygard. & Associates, Inc. 1-877-438-7787
12/11/2018 DERINGTON JAMES Page 10
Q. And the Lumpkin Fire, to my understanding, lasted
-- it began around September 10, 2015, and it sounds
like everything was cleaned up around September 22nd,
around in there that you guys dispersed, is that
correct?
A. If that's what your records state, yes.
Q. Okay.
A. I can tell you that I was on vacation and then
left on vacation in between that period so --
10 Q. Okay. So we are here specifically to speak about
11 the dozer burn over. Do you understand that?
12 A; Yes.
13 Q. And from our records, we show that that burn over
14 occurred on September 14, 2015. Is. that your
15 recollection?
16 A. I don't know the date.
17 Q. Okay. So you don't have any other recollection
18 than September 2015? The 14th doesn't go against any of
19 your memory, is that correct?
20 A. No.
21 Q. Okay. And on that date it's my understanding
22 that you were in charge of or had something to do with a
23 -- I am going to call it a firing operation. Was ita
24 firing operation?
—
25 A. Yes.
Carol Nygard & Associates, Inc. 1-877-438-7787
12/11/2018 DERINGTON JAMES Page 11
Q. Okay. I want to make sure I'm using the right
words. What is a backfire?
A. You know, I don't -- I don't have the -- what you
Owe“ ee
would say the direct or the definition of it because
se
that's not the terminology we would use.
nipsee
Q. Okay. So Cal Fire does not use the terminology
backfire?
A. No.
—
Q. Okay. What is a burning out?
10 A. What is burning out?
11 Q. Yes. Have you ever heard that term before?
12 A. Yes.
13 Q. And is that in any way related to a firing
14 operation?
15 A. No.
16 Q. Okay. How about a firing out? Did that -- dida
a -
17
fixing out. occur on September 1. Z005F
18 A. Yes.
19 Q. Okay. What is a firing out?
20 A. Well, can I back up?
21 Q. Yes.
22 A. You're saying firing out. It would be a firing
- —
23 operation, a defensive firing operation.
Oe
24 Q. Okay.
25 A. The technique would be to put fire on the ground.
ee SSSSSSSSSS—C—COOFeS
Carol Nygard & Associates, Inc. 1-877-438-7787
DERINGTON JAMES Page 24
12/11/2018
1 A. Yes, but some of these -- like it says "before
oo
backfires," and it is a firing operation so -- firing
a _
plan, yes. Firing operation on the 14th, yes. Policies
—_
and procedures for conducting a backfire would be a
——_——_
firing operation.
Q. Okay. So if we can agree that the --
MS. WHITMORE: And also this one.
THE WITNESS: Compliance by Cal Fire
personnel with policies and procedures for --
10 MS. WHITMORE: Yeah.
11 THE WITNESS: Yeah, it's a firing operation.
12 BY MS. JUHL-RHODES:
13 Q. Okay. So if we can agree that an error was made
14 as far as terminology as a backfire meaning a firing
15 operation, and we would replace the word backfire with
16 firing operation, would you say that you are most
17 qualified or a person most knowledgeable through 1
18 through 5 on that list?
19 A. In a firing operation, yes.
20 Q. Okay. Thank you.
21 A _But the two terms don't mean the same thing, I do
22
23 Q. Okay. That's understood. And there has been
24 some misunderstanding, and we are slowing catching up
25 with your terminology being Cal Fire's terminology, so Tr
Carol Nygard & Associates, Inc. 1-877-438-7787
12/11/2018 DERINGTON JAMES Page 32
you consider before performing a firing operation?
A. I don't understand the question.
Q. You listed the topographical makeup of where the
fire was. What portions of the topographical makeup or
--
A. Topography would refer to the ground, not in
relation to the fire. So are you on the top of the
mountain? Are you on the bottom of the mountain? Where
is the main body of the fire? Is it -- those sorts of
10 things.
11 Q. So, for example, whether there are hills,
12 mountains, flat?
13 A. They all play in.
14 Q. What are some of the tactical reasons that you
15 might perform a firing operation?
16 A. To hold a certain piece of line.
17 Q. And what do you mean by certain piece of line?
18 A. Can I use an example of my division? My division
19 was Division Echo, Division E, and I was assigned
— — —— a =
Sent: Friday, January 04, 2019 8:24 AM
To: LeeAnn Whitmore
Ce: Mark Habib ; Toni Campbell ; Chance Hansen
Subject: Amended Discovery Responses/ Motions to Compel
Good Morning, LeeAnn,
Given the testimony of Chief Read yesterday that the event of putting a fire to the ground is a burnout and
backfire, we would be willing to forgo filing motions to compel if you will agreed to provide substantive
amended responses by Monday. If you agree to do so then we will consider withdrawing our second set of
discovery that is due Monday, as well.
Please let me know by noon today if you will be amending the discovery responses. If I do not hear from you by
noon we will be filing our motions to compel today.
I look forward to speaking with you at 4 p.m. to discuss the scheduling of depositions.
Lia
Lia Juhl-Rhodes
Peters, Habib, McKenna,
Juhl-Rhodes & Cardoza, LLP
414 Salem Street
Chico, CA 95928
530.342.3593
Sent from mobile
DECLARATION OF SERVICE BY OVERNIGHT COURIER
Case Name: Dudley’s Excavating, Inc. y. California Department of Forestry and Fire
Protection
No.: 16CV00883
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member’s direction this service is made. I am 18 years of age or
older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box
944255, Sacramento, CA 94244-2550.
On January 22, 2019, I served the attached DECLARATION OF LEEANN WHITMORE IN
SUPPORT OF OPPOSITION TO PLAINTIFFS’ DUDLEYS’ EXCAVATING’S AND
WALBERG’S MOTIONS TO COMPEL FURTHER RESPONSES TO REQUEST FOR
ADMISSION, SET ONE AND REQUEST FOR SANCTIONS by placing a true copy thereof
enclosed in a sealed envelope with the FedEx, addressed as follows:
Mark A. Habib
Attorney
Peters, Habib, McKenna & Juhl-Rhodes,
Cardoza, LLP
414 Salem Street
P.O. Box 3509
Chico, CA 95927-3509
Counsel for Plaintiffs
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on January 22, 2019, at Sacramento,
California.
Christopher R. Irby Cathet
Declarant Signature /
$A2016302480
33750404 doex33750404,DOCX
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F Superior Court of California F XAVIER BECERRA County of Butte Attomey General of Califomia | | PETER A. MESHOT Supervising Deputy Attomey General 1/22/2019 L LEEANN E. WHITMORE D Atto General D State Bar No. 214870 By eyo “KGa Depi uty 1300 I Street, Suite 125 Electronically FILED P.O. Box 944255 Sacramento, CA 94244-2550. Telephone: (916) 210-7515 Fax: (916) 322-8288 Attorneys for Defendant Department of Forestry and Fire Protection SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF BUTTE 11 CIVIL DIVISION 12 13 DUDLEYS' EXCAVATING Case No. 16CV00883 14 INCORPORATED, a California corporation; and WALBERG, INC.,a DECLARATION OF LEEANN 15 California corporation, WHITMORE IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ 16 Plaintiffs, DUDLEYS’ EXCAVATING’S AND WALBERG’S MOTIONS TO COMPEL 17 FURTHER RESPONSES TO REQUEST FOR ADMISSION, SET ONE AND 18 REQUEST FOR SANCTIONS CALIFORNIA DEPARTMENT OF 19 FORESTRY AND FIRE PROTECTION, a Date: February 6, 2019 Public Entity; and DOES 1 to 100, inclusive, Time: 9:00am. 20 i TBA Defendant. Hon. TamaraL. M 21 Thi Date: June 24, 2019 Action Filed: June 9, 2016 22 23 24. I, LeeAnn E. Whitmore declare: 25 1. [aman attomey at law admitted to practice before all courts of the State of Califomia. I 26 ama Deputy Attomey General of the State of Califomia. In that capacity, I have been assignedto 27 represent the State of Califomia, by and through, the Department of Forestry and Fire Protection 28 (“CAL FIRE”) as a Defendant in this action. Ihave personal knowledge of the matters set forth Decl. of LeeAnn Whitmore in Support of Opposition to Plaintiffs’ Motions to Compel Further Responses to Request for Admissions (16CV00883) in this declaration and if called to testify could testify competently thereto. This declaration is served in response to Plaintiff Dudley’ s Excavating and Walberg’ s request for admissions which. contained virtually identical requests except for substituting Walberg or Dudley’ s for the damaged dozer in the requests. 2. On November 21, 2018, our office served CAL FIRE’s verified responses to request for admissions. It was necessary to obtain extensions to respond to discovery because of my pre- scheduled vacation in late October and CAL FIRE’s involvement defending the Camp Fire. We also provided responses to request for production of documents which included a portion of CAL FIRE’s operations which included a portion regarding Firefighting Operations which defined 10 separate and distinct firefighting tactics “BURNING OUT” and “BACKFIRE”. A true and 11 correct copy of the document produced designated as State 008867 and State 008868 is attached. 12 as ExhibitA. Based on this document and discussions with CAL FIRE personnel as to what 13 firing operation was conducted on September 14, 2015, I objected that plaintiff’ s requests which 14 discussed “BACKFIRE” with her definition were vague. Irrespective of the definition, CAL 15 FIRE denied that it performed a backfire. CAL FIRE also denies that any of its actions damaged 16 plaintiff’ s equipment. 17 3. On December 11, 2018, prior to the depositions of two of CAL FIRE’s person most 18 knowledgeable, James Derington and Brent Stangland, plaintiff’s attomey advised that she was 19 going to send me a meet and confer letter on the discovery responses unless we agreed that the 20 tem “backfire” could be interchanged with other terminology. I advised that I would not agree to 21 this and would respond to a meet and confer letter. James Demington was the person who 22 performed a firing operation. A true and correct copy of relevant portions of his testimony are 23 attached as Exhibit B. 24. 4. After the CAL FIRE depositions I sent a meet and confer letter advising of CAL FIRE’s 25 intention to file a motion for summary judgment based on the emergency exception to inverse 26 condemnation and intention to seek fees and costs under Code of Civil Procedure section 1038. 27 Our office had previously sent a similar letter prior to the filing of the motion for judgment on the 28 Pleadings, which was granted in CAL FIRE’s favor. Decl. of LeeAnn Whitmore in Support of Opposition to Plaintiffs’ Motionsto Compel Further Responses to Request for Admissions (16CV00883) 5. On December 27, 2018, plaintiff's attorney set two virtually identical letters via e-mail to meet and confer on the identical sets of discovery she served on behalf of each plaintiff. I was out of the office and my e-mail sent automatically replies advising that I would be out until January 2, 2019. As acourtesy, on December 28, 2018, I would respond to the letter when I returned. I sent plaintiffs counsel a response to the meet and confer letter on January 2, 2019 outlining the reasons for the objections to the various discovery. A true and correct copy of the letter is attached as Exhibit C. Plaintiff's attorney did not contact me in response to this letter. 6. Darren Read was deposed on January 3, 2019. He was not produced as the person most knowledgeable regarding firing operations, nor did he sign the verifications to discovery on 10 behalf of CAL FIRE. Mr. Read’s deposition concluded at approximately 7:00 p.m. At the 11 deposition, I informed plaintiff's attorney that I would be in a hearing the morning of January 4, 12 2019. 13 7. On January 4, 2019, plaintiff's attorney sent an e-mail at 8:24 a.m. seeking amended 14 responses to the request for admissions. After, I returned to my office after the hearing, I advised 15 that I would not change the responses. I advised that I would be available to speak on January 7, 16 2018. A true and correct copy of the e-mail is attached as Exhibit C. I did not receive a response 17 from plaintiffs counsel. 18 8. Ihave been an attorney for 17 years. The Office of the Attorney General charges $170 19 an hour for work performed by me in this case. I have spent approximately two hours preparing 20 the opposition papers for this motion for a total of $340. I anticipate spending an additional hour 21 reviewing the reply papers and four hours traveling to and attending the hearing which would the 22 bring the total cost to CAL FIRE of $850. This would bring the total fees to $1,190. 23 I declare under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct. Executed this Ala day of January 2019, at Sacramento, 25 California. 26 27 Mb. LeeAnn E. Whitmore 28 3 Decl. of LeeAnn Whitmore in Support of Opposition to Plaintiffs’ Motions to Compel Further Responses to Request for Admissions (16CV00883) EXHIBIT A ° Clear work area at base of tree ° Determine primary and alternate escape routes . Walk out intended lay of tree . Ensure area is clear of personnel Once the assessment has been made the supervisor will assure the following is addressed and briefed on: . A safety briefing shall be conducted once the assessment has been made. A lookout will be posted when work begins. Wedges will be used as needed, A warning will be called out when the tree begins to falll. After the tree has fallen, the area will be assessed for hazards caused by the falling tree. REMEMBER! No person should fell-any tree that is larger or more complicated than they are comfortable with, or their training has prepared and certified them for. FIRING OPERATIONS 7013.4 (October 2002) The utilization of the appropriate strategy and tactics is extremely important in determining the outcome of suppressing a wildland fire, On larger, hotter fires the strategy of choice is often an indirect attack, In addition to hoselays, hand lines, dozer lines, and retardant lines, the use of backfire and burning out are tactical considerations frequently used. The use of fighting fire with fire is very common in wildland firefighting; however, it requires a great deal more coordination and fire ground experience than the other tactical choices. Knowing when and how to properly execute a burning out or backfire operation can result in the rapid control of a major fire with the use of limited resources. Indecision and poor timing by Incident Commanders can compromise safety; produce escapes that rapidly increase the advancement of the fire and create other incident related problems. \ DEFINITION: BURNING OUT - (FIRING OUT, BLACK LINING) — Setting fire inside a control line to consume fuel between the edge of the fire and the control line, when the main fire is not.an immediate threat. Control lines can be constructed fire line, roads, driveways, stream or dry creek bottoms, wet linés or foam lines. | Burning out has the following uses: t t . Improve completed fireline. | . Eliminate fingers of fire by cutting directly across each tip of fire, Create safety zones. 7013-12 State 008867 “ . Combine spot fires. . Reduce mop-up. BACKFIRE — A fire set to spread against the influence of wind and |1 slope in order to widen the burn zone ahead of the main fire. The desired effect is to slow or stop a fast moving, high-intensity fire from. I overrunning an established fireline. Conditions that warrant backfire are: . Rapid rate of spread of the main fire. . Fire intensity is too severe for direct attack. ° dt There Is an Immediate thréat to life or property. Direct attack not possible because of inaccessible terrain, LEGAL AUTHORITY 7013.4.1 (October 2002) Public Resources Code 4426 — A person shall not set a backfire, or cause a backfire tobe set, except under the direct supervision or permission of a state or federal forest officer, unless it can be established that the setting of such backfire was necessary for the purpose of saving life or valuable property. Health and Safety Code 41801 — Nothing in this article shall be construed as limiting the authority granted under the provisions of law to any public officer to set or permit a fire when such a fire Is, in his/her opinion, necessary for any of the following purposes: . The prevention of a fire hazard that cannot be abated by any other means. The instruction of public employees in the methods of firefighting. The instruction of employees in methods of firefighting, when such fire is set, pursuant to permit, on property used for industrial purposes. The setting of backfires necessary to save life or valuable property pursuant to Section 4426 of the Public Resources Code. The abatement of fire hazards pursuant to Section 13055, Disease or pest prevention, where there is an immediate need for and no reasonable alternative to burning. Heaith and Safety Code 13055 — Any public agency authorized to engage in fire protection activities, including but not limited to a fire protection district, city, county fire department, the Department of Forestry and Fire Protection, and the United States Forest Service, may use fire to abate a fire hazard, 7013-13 State 008868 EXHIBIT B 12/11/2018 DERINGTON JAMES IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF BUTTE DUDLEYS' EXCAVATING, INCORPORATED,) Case No. a California corporation; and ) 16CV00883 WALBERG, INC., a California corporation, Plaintiffs, vs. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, a Public Entity; and DOES 1 to 100, inclusive, Defendants. Deposition of JAMES DERINGTON Tuesday, December 11, 2018 Reported by: Erin Worley, CSR #13139 Carol Nygard. & Associates, Inc. 1-877-438-7787 12/11/2018 DERINGTON JAMES Page 10 Q. And the Lumpkin Fire, to my understanding, lasted -- it began around September 10, 2015, and it sounds like everything was cleaned up around September 22nd, around in there that you guys dispersed, is that correct? A. If that's what your records state, yes. Q. Okay. A. I can tell you that I was on vacation and then left on vacation in between that period so -- 10 Q. Okay. So we are here specifically to speak about 11 the dozer burn over. Do you understand that? 12 A; Yes. 13 Q. And from our records, we show that that burn over 14 occurred on September 14, 2015. Is. that your 15 recollection? 16 A. I don't know the date. 17 Q. Okay. So you don't have any other recollection 18 than September 2015? The 14th doesn't go against any of 19 your memory, is that correct? 20 A. No. 21 Q. Okay. And on that date it's my understanding 22 that you were in charge of or had something to do with a 23 -- I am going to call it a firing operation. Was ita 24 firing operation? — 25 A. Yes. Carol Nygard & Associates, Inc. 1-877-438-7787 12/11/2018 DERINGTON JAMES Page 11 Q. Okay. I want to make sure I'm using the right words. What is a backfire? A. You know, I don't -- I don't have the -- what you Owe“ ee would say the direct or the definition of it because se that's not the terminology we would use. nipsee Q. Okay. So Cal Fire does not use the terminology backfire? A. No. — Q. Okay. What is a burning out? 10 A. What is burning out? 11 Q. Yes. Have you ever heard that term before? 12 A. Yes. 13 Q. And is that in any way related to a firing 14 operation? 15 A. No. 16 Q. Okay. How about a firing out? Did that -- dida a - 17 fixing out. occur on September 1. Z005F 18 A. Yes. 19 Q. Okay. What is a firing out? 20 A. Well, can I back up? 21 Q. Yes. 22 A. You're saying firing out. It would be a firing - — 23 operation, a defensive firing operation. Oe 24 Q. Okay. 25 A. The technique would be to put fire on the ground. ee SSSSSSSSSS—C—COOFeS Carol Nygard & Associates, Inc. 1-877-438-7787 DERINGTON JAMES Page 24 12/11/2018 1 A. Yes, but some of these -- like it says "before oo backfires," and it is a firing operation so -- firing a _ plan, yes. Firing operation on the 14th, yes. Policies —_ and procedures for conducting a backfire would be a ——_——_ firing operation. Q. Okay. So if we can agree that the -- MS. WHITMORE: And also this one. THE WITNESS: Compliance by Cal Fire personnel with policies and procedures for -- 10 MS. WHITMORE: Yeah. 11 THE WITNESS: Yeah, it's a firing operation. 12 BY MS. JUHL-RHODES: 13 Q. Okay. So if we can agree that an error was made 14 as far as terminology as a backfire meaning a firing 15 operation, and we would replace the word backfire with 16 firing operation, would you say that you are most 17 qualified or a person most knowledgeable through 1 18 through 5 on that list? 19 A. In a firing operation, yes. 20 Q. Okay. Thank you. 21 A _But the two terms don't mean the same thing, I do 22 23 Q. Okay. That's understood. And there has been 24 some misunderstanding, and we are slowing catching up 25 with your terminology being Cal Fire's terminology, so Tr Carol Nygard & Associates, Inc. 1-877-438-7787 12/11/2018 DERINGTON JAMES Page 32 you consider before performing a firing operation? A. I don't understand the question. Q. You listed the topographical makeup of where the fire was. What portions of the topographical makeup or -- A. Topography would refer to the ground, not in relation to the fire. So are you on the top of the mountain? Are you on the bottom of the mountain? Where is the main body of the fire? Is it -- those sorts of 10 things. 11 Q. So, for example, whether there are hills, 12 mountains, flat? 13 A. They all play in. 14 Q. What are some of the tactical reasons that you 15 might perform a firing operation? 16 A. To hold a certain piece of line. 17 Q. And what do you mean by certain piece of line? 18 A. Can I use an example of my division? My division 19 was Division Echo, Division E, and I was assigned — — —— a = Sent: Friday, January 04, 2019 8:24 AM To: LeeAnn Whitmore Ce: Mark Habib ; Toni Campbell ; Chance Hansen Subject: Amended Discovery Responses/ Motions to Compel Good Morning, LeeAnn, Given the testimony of Chief Read yesterday that the event of putting a fire to the ground is a burnout and backfire, we would be willing to forgo filing motions to compel if you will agreed to provide substantive amended responses by Monday. If you agree to do so then we will consider withdrawing our second set of discovery that is due Monday, as well. Please let me know by noon today if you will be amending the discovery responses. If I do not hear from you by noon we will be filing our motions to compel today. I look forward to speaking with you at 4 p.m. to discuss the scheduling of depositions. Lia Lia Juhl-Rhodes Peters, Habib, McKenna, Juhl-Rhodes & Cardoza, LLP 414 Salem Street Chico, CA 95928 530.342.3593 Sent from mobile DECLARATION OF SERVICE BY OVERNIGHT COURIER Case Name: Dudley’s Excavating, Inc. y. California Department of Forestry and Fire Protection No.: 16CV00883 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member’s direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550. On January 22, 2019, I served the attached DECLARATION OF LEEANN WHITMORE IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ DUDLEYS’ EXCAVATING’S AND WALBERG’S MOTIONS TO COMPEL FURTHER RESPONSES TO REQUEST FOR ADMISSION, SET ONE AND REQUEST FOR SANCTIONS by placing a true copy thereof enclosed in a sealed envelope with the FedEx, addressed as follows: Mark A. Habib Attorney Peters, Habib, McKenna & Juhl-Rhodes, Cardoza, LLP 414 Salem Street P.O. Box 3509 Chico, CA 95927-3509 Counsel for Plaintiffs I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on January 22, 2019, at Sacramento, California. Christopher R. Irby Cathet Declarant Signature / $A2016302480 33750404 doex33750404,DOCX