Preview
“ s
My
James T. Hultquist (Pre hac vice)
IM Email:
Daniel
jhultquist@reedsmith.com
Kirby (Pro hac vice)
FILED
SAN MATER COUNTY
Email: dkirby@reedsmith.com
Maytak Chin (State Bar No. 288155) OCT 28 2019
Email: mchin@reedsm:th.com
REED SMITH LLP Clork
of the Sy Gourt
101 Second Street, Suite 1800 By. ec
San Francisco, CA 94195-3659 CLERC
Telephone: (415) 543-8700
5U | I | | | |
— ee
Facsimile: (415) 391-8269 Su CIV-01696
Separae Satement of Undtputed Material Fc
Attorneys for Defendant:
AMERIGAS PROPANE, L.P., AMERIGAS
PROPANE, INC., and AMERIGAS, INC.
ee
|| i
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SAN MATEO
11
12 IBRICEIDA LOPEZ, an individual, JOSE Case No.: 18CIV01696
SOLIS, an individual,
ny 13 SEPARATE STATEMENT OF
as
Plaintiffs, UNDISPUTED MATERIAL FACTS IN
ae 14
Vv.
SUPPORT OF AMERIGAS DEFENDANTS’
15 MOTION FOR SUMMARY JUDGMENT
IPAUL BONIFACIO, an :ndividual OR, IN THE ALTERNATIVE, SUMMARY
16 MARGARET HYUN, an individual, ADJUDICATION
IAMERIGAS PROPANE. INC., a corporation; e1/in 20
17 [AMERIGAS, INC., a corporation; and DOES Date:
ONE through ONE-HUNDRED,, inclusive. Time: 9!00 AM
18 Dept Law and Motion
Defendants
19 [Filed concurrently with Notice of Motion,
MPA; RJN; Declarations of Maytak Chin,
20
Christopher Wagner, and Maxwell J.
21 Eichenberger and exhibits attached thereto; and
[Proposed] Order]
22
23
24
25
26
27
28
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
Pursuant to California Rules of Court, Rule 3.1350, Defendants AmeriGas, Inc., AmeriGas|
Propane, L.P., and AmeriGas Propane, Inc. (together, the “AmeriGas Defendants”) submit the|
following Separate Statement of Undisputed Material Facts in support of their Motion for Summary|
Judgment, or in the Alterative, Summery Adjudication.
CAUSE OF ACTION # 3: NEGLIGENCE
UNDISPUTED MATERIAL FACTS AND PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE SUPPORTING EVIDENCE
1 In paragraph 14 of their Second Amended
10
Complaint, Plaintiffs alleged: “The
11
RESIDENCE is located within Placer
12
County at an elevation of approximately
13
Se 6,245 feet above sea level. During all times
as 14
ag
@é
Be relevant to the allegations made herein,
15
16 Article 15.12 of the Placer County Building
17
Code, entitled “Liquefied Petroleum Gas
Installations” (hereinafter, the “LPG
18
19
ORDINANCE”), applied “to all real
property located at an elevation of five
20
21 thousand (5,000) feet or more above sea
22 level”, including the RESIDENCE. (Placer
23 County Building Code, Article 15.12.020.)
The LPG ORDINANCE mandates, among
24
other things, that LPG installations,
25
including the LPG INSTALLATION, meet
26
certain safety standards, specifications, and
27
28
-1-
~ SEPARATE STATEMENT OFUNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERN. .
SUMMARY ADJUDICATION
requirements. (Placer County Building
Code, Article 15.12,030.)”
See Second Amended Complaint§ 14
(attached as Exhibit 6 to Declaration of
Maytak Chin (“Chin Decl.”)).
In paragraph 15 of their Second Amended
Complaint, Plaintiffs alleged that: “During
all times relevant te the allegations made
10
herein, one such requirement of the LPG
ll
ORDINANCE was that components of LPG
12
installations, including propane riser pipes,
re 13
SE be installed on the protected gable end of
ae
Qs
14
buildings where feasible, under a protective
15
cover, so as to avoid exposure to snow and
16
ice shedding. (Placer County Building
17
Code, Article 15.12.030(C).)”
18
19
See Second Amended Complaint § 15
20
(attached as Exhibit 6 to Chin Decl.).
21
In paragraph 16 of their Second Amended
22
Complaint, Plaintiffs alleged that: “During
23
all times relevant to the allegations made
24
herein, the propane riser pipe that
25
comprised part of the LPG
26
INSTALLATION at the RESIDENCE was
27
not located on the gable end of the building
28
-2-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
and was not under a protective covering,
exposing lorig sections of the pipe to snow
and ice shedding in violation of the LPG
ORDINANCE.”
See Second Amended Complaint 4 16
(attached as Exhibit 6 to Chin Decl.).
In paragraph 17 of their Second Amended
Complaint, Plaintiffs alleged that: “During
10
all times relevant to the allegations made
1
herein, the configuration of the LPG
12
ao INSTALLATION at the RESIDENCE,
aé
ne
13
including fact that the riser pipe was
aes 14
unprotected and exposed to snow and ice in
15
violation of the LPG ORDINANCE[.].”
16
17
See Second Amended Complaint q17
18
(attached as Exhibit 6 to Chin Decl.).
19
In their Third Cause of Action for
20
negligence against the AmeriGas
21
Defendants, Plaintiffs incorporate by
22
“reference each of the allegations set forth
23
above in paragraphs 1 through 18 and make
24
them part of ... the Third Cause of Action,
25
as though fully set forth herein.”
26
27
See Second Amended Complaint { 30
28
-3-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
RY ADJUDICATION
(attached as Exhibit 6 to Chin Decl.).
In their Third Cause of Action for
negligence against the AmeriGas
Defendants, Plaintiffs allege that: “In 2015,
homeowners in Placer County provided the
AMERIGAS DEFENDANTS with a copy
of the LPG ORDINANCE. At said time
and place, the homeowners informed the
AMERIGAS DEFENDANTS that many
10
LPG Installations in Placer County were not
11
in compliance with the LPG ORDINANCE,
12
that LPG vendors such as the AMERIGAS
13
DEFENDANTS were not conducting
14
annual safety inspections as required by the
15
LPG ORDINANCE, and that LPG vendors
16
such as the AMERIGAS DEFENDANTS.
17
were illegally continuing to refill LPG
18
storage tanks for customers with
19
noncompliant LPG installations.”
20
21
See Second Amended Complaint { 35
22
(attached as Exhibit 6 to Chin Decl.).
2
7. In their Third Cause of Action for
24
negligence against the AmeriGas
25
Defendants, Plaintiffs further allege that:
26
“In 2015, homeowners in Placer County
27
warned the AMERIGAS DEFENDANTS
28
-4-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
ENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
that continuing to refill the LPG storage
tanks for customers with LPG installations
that violated the LPG ORDINANCE was a
serious and unnecessary safety risk. As a
result, AMERIGAS DEFENDANTS knew,
or should have known, that refilling LPG
storage tanks at homes with noncompliant
LPG Installations, including the LPG
Installation at the RESIDENCE, was
10
dangerous.”
11
12
See Second Amended Complaint § 36
13
(attached as Exhibit 6 to Chin Decl.).
14
In their Third Cause of Action against the
15
AmeriGas Defendants, Plaintiffs allege that:
16
“In April 2017, a Placer County home with
17
an LPG Installation serviced by the
18
AMERIGAS DEFENDANTS burned down
19
after an explosion ... The investigating fire
20
authority ... concluded that the LPG
21
Installation at the home violated the LPG
22
ORDINANCE because the riser pipe was
23
not located on the protected gable end of the
24
building ...the house’s propane system was
25
in violation of the LPG ORDINANCE[.]”
26
27
See Second Amended Complaint { 37
28
-5-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
(attached as Exhibit 6 to Chin Decl.).
In their Third Cause of Action against the
AmeriGas Defendants, Plaintiffs further
allege that: “Despite knowledge of the
aforementioned 2015 warning and 2017
fire, the AMERIGAS DEFENDANTS to
carelessly, recklessly, and negligently
inspect, maintain, sell, install, own, control,
and service the LPG INSTALLATION at
10
the RESIDENCE, including continuing to
11
refill the LPG storage tank at the
12
RESIDENCE.”
13
14
See Second.Amended Complaint J 39
(attached as Exhibit 6 to Chin Decl.).
1
10. The 2016 California Building Standards
17
Code (Cal. Code Regs., Title 24) was
18
published July 1, 2016, with an effective
19
date of January 1, 2017, which covers the
20
Building Code (Part 2), Mechanical Code
21
(Part 4), Plumbing Code (Part 5) and Fire
22
Code (Part 9).
23
24
See Chin Decl. at { 2.
25
11 On November 22, 2016, the Placer County
26
Board of Supervisors passed Ordinance No
27
5847-B, whereby the Board “codifie[d] its
28
-6-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
adoption of the 2016 California Building
Standards Code as amended by re-
enactment of Placer County Code, Chapter
15, Article 15.04, as set forth in Exhibit ‘A’,
which is attached ... and incorporated
herein as if set forth in full.”
See Section 3 of Placer County Ordinance
No. 5847-B attached to 1/23/17 Placer
10
County Letter to California Building
11
Standards Commission (attached as Exhibit
12
1 to Chin Decl. and as Exhibit D to
ne 13
Ses Declaration of Maxwell J. Eichenberger
as 14
a3 (“Eichenberger Decl.”).
Be
ae
15
12. Exhibit A to the 2016 Placer County
16
Ordinance No. 5847-B is Article 15.04 of
17
the Placer County Code.
18
19
See Exhibit A to Placer County Ordinancé
20
No. 5847-B attached to 1/23/17 Placer
21
County Letter to California Building
22
Standards Commission (attached as Exhibit
23
1 to Chin Decl. and as Exhibit D to
24
Eichenberger Decl.).
25
13 Unlike Article 15.04, the 2016 Placer
26
County Ordinance No. 5847-B did not
27
expressly enact Placer County Building
28
-7-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
Code, Article 15.12 et seq.
See Placer County Ordinance No. 5847-B
attached to 1/23/17 Placer County Letter to
California Building Standards Commission
(attached as Exhibit 1 to Chin Decl. and as
Exhibit D to Eichenberger Decl.).
14. The 2016 Placer County Ordinance No.
5847-B also provided that: “This ordinance
10
shall take effect and be in full force thirty
11
(30) days after the date of its passage, but
12
no sooner than January 1, 2017.”
13
14
See Section 4 of Placer County Ordinance
15
No. 5847-B attached to 1/23/17 Placer
16
County Letter to California Building
17
Standards Commission (attached as Exhibit
18
1 to Chin Decl. and as Exhibit D to
19
Eichenberger Decl.).
20
15 By letter dated January 23, 2017, Placer
21
County sent a copy of the 2016 Placer
22
County Ordinance No. 5847-B to the
23
California Building Standards Commission,
24
pursuant to California Health and Safety
25
Code § 17958 et seq., which included
26
“Placer County’s express findings and code
27
modifications” to the 2016 California
28
-8-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
Building Standards Code (Cal. Code Regs.,
Title 24).
See 1/23/17 Placer County Letter to
Building Standards Commission (attached
as Exhibit 1 to Chin Decl. and as Exhibit D
to Eichenberger Decl.).
16 By. letter dated March 27, 2017, the
California Building Standards Commission
10
advised Placer County of its determination
ll
regarding the 2016 Placer County
12
Ordinance No. 5847-B with express
13
findings “received from [Placer County] on
14
January 26, 2017...[which] contain[ed] one
15
ordinance, No. 5847-B, modifying
16
provisions of the 2016 California Building
17
Standards Code in Title 24, California Code
18
of Regulations (code), and express findings
19
complying with Health and Safety Code
20
Sections 17958.7 and 18941.5.”
21
22
See 3/27/17 Building Standards
23
Commission Letter to Placer County
24
(attached as Exhibit 2 to Chin Decl. and as
25
Exhibit E to Eichenberger Decl.).
2
17. In the March 27, 2017 letter, the California
27
Building Standards Commission further
28
-9-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNA’ .
SUMMARY ADJUDICATION
stated: “The code modifications [in
Ordinance No. 5847-B] are accepted for
filing and are enforceable.”
See 3/27/17 Building Standards
Commission Letter to Placer County
(attached as Exhibit 2 to Chin Decl. and as
Exhibit E to Eichenberger Decl.).
18 The California Department of General
10
Services’ website shows that the California
11
Building Standards Commission only
12
accepted for filing one local amendment to
13
the 2016 Building Standards Code from
14
Placer County, which was Ordinance No.
15
5847-B.
16
17
See 2016 Local Amendments to Building
18
Standards — Ordinances Received for Filing
19
(attached as Exhibit 4 to Chin Decl.).
20
19. AmeriGas, Inc., AmeriGas Propane, Inc.,
21
and AmeriGas L.P. are three separate
22
corporate entities affiliated through the
23
AmeriGas trade name, with each corporate
24
entity maintaining its own corporate
25
records, finances, and separate assets and
26
liabilities.
27
28
-10-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
See Declaration of Christopher Wagner
(“Wagner Decl.”) {§ 2 - 6
20 Defendant AmeriGas Propane, L.P. was the
only AmeriGas corporate entity that
delivered propane to the 1509 Christy Lane
residence.
See Wagner Decl. ¥ 7
21 When asked to produce documents in
10
support of their Third Cause of Action
11
against AmeriGas Propane, Inc. for
12
negligence, Plaintiffs “refer[red] the
13
propounding party to the documents
14
defendant AmeriGas Propane, LP has
15
produced in this litigation to date,” which
16
does not implicate AmeriGas Propane,
17
Inc,—a separate entity.
18
19
See Plaintiff Lopez’s Response to RFP No
20
2 (attached as Exhibit 7 to Chin Decl.);
21
Plaintiff Solis’ Response to RFP No. 2
22
(attached as Exhibit 8 to Chin Decl.)
23
22. When asked to produce documents in
24
support of their Third Cause of Action
25
against AmeriGas, Inc. for negligence,
26
Plaintiffs “refer[red] the propounding party
27
to the documents defendant AmeriGas
28
-ll-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF Anos
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNA’
-Y ADJUDICATION
Propane, LP has produced in this litigation
to date,” which does not implicate
AmeriGas, Inc.—a separate entity.
See Plaintiff Lopez’s Response to RFP No.
3 (attached as Exhibit 7 to Chin Decl.);
Plaintiff Solis’ Response to RFP No. 3
(attached as Exhibit 8 to Chin Decl.).
23 In the Residential Propane Supply
10
Agreement with the homeowner of the 1509
11
Christy Lane residence, it states:
12
a
ne “Customer is solely responsible for the
Qs
13
Se maintenance and repair of Customer’s entire
as 14
propane system.”
we
15
16
See Residential Propane Supply Agreement
17
at { 4 (attached as Exhibit 14 to Chin Decl.)
18
24. Chief Craig Harvey, one of the first
19
responders to the incident, did not
20
definitively determine that the incident was
21
caused by a pre-fire break in the 1509
22
Christy Lane residence’s gas line.
23
24
See 4/30/19 Deposition of Chief Craig
25
Harvey at 82:25-83:10 & 177:21-178:13,
26
178:18-179:1 (attached as Exhibit 5 to Chin
27
Decl.).
28
-12-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
UMMARY ADJUDICATION
. CAUSE OF ACTION # 4: NEGLIGENCE PER SE
UNDISPUTED MATERIAL FACTS AND PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE SUPPORTING EVIDENCE
25. The Judicial Council of California Civil
Jury Instruction No. 418 provides that the
doctrine of “negligence per se” is an
evidentiary presumption under Evidence
Code § 669 rather than a separate cause of
10 action from negligence.
1
12 See CACI No. 418 (2019 Ed.) (attached as
13 Exhibit 15 to Chin Decl.).
14
26. Plaintiffs alleged that: “The LPG
15
ORDINANCE imposes duties,
16
responsibilities and obligations on vendors
17
such as the AMERIGAS DEFENDANTS,
18
including, without limitation, the duty to
19
conduct an annual inspection of the LPG
20
INSTALLATION at the RESIDENCE ‘for
21
safe operating conditions and compliance”
22
with the LPG ORDINANCE. (Placer
23
County Building Code Article 15.12.070.).”
24
25
See Second Amended Complaint § 46
26
(attached as Exhibit 6 to Chin Decl.).
27
27. Plaintiffs alleged that: “The LPG
28
-13-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
ORDINANCE also prohibits the
AMERIGAS DEFENDANTS from
refueling any covered LPG installation,
including the LPG INSTALLATION [at the
residence], that fails to comply with the
LPG ORDINANCE. (Placer County
Building Code Article 15,12.040.)”
See Second Amended Complaint | 46
10
(attached as Exhibit 6 to Chin Decl.).
ll
28 Plaintiffs alleged that: “the LPG
12
ORDINANCE makes it unlawful for
13
vendors, such as the AMERIGAS
14
DEFENDANTS, to provide service to a
15
covered LPG installation, including the
16
LPG INSTALLATION [at the residence]
17
that does not conform with the LPG
18
ORDINANCE.”
19
20
See Second Amended Complaint { 46
21
(attached as Exhibit 6 to Chin Decl.).
22
29. Plaintiffs alleged that: “The AMERIGAS
23
DEFENDANTS, and each of them,
24
willfully and negligently failed to conduct
25
annual inspections of the LEG
26
INSTALLATION at the RESIDENCE, or
27
willfully and negligently performed such
28
-14-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
inspections such that the AMERIGAS
DEFENDANTS failed to note, record, or
act upon violations of the LPG
ORDINANCE. The AMERIGAS
DEFENDANTS instead refueled and
serviced the unsafe and nonconforming
LPG INSTALLATION at the
RESIDENCE, in violation of the LPG
ORDINANCE.”
10
11
See Second Amended Complaint J 47
12
(attached as Exhibit 6 to Chin Decl.).
13
30 Plaintiffs allege that: “During all times
a 14
relevant to the allegations made herein, the
Be 15
AMERIGAS DEFENDANTS knew or
16
should have known that the LPG
17
INSTALLATION at the RESIDENCE
18
violated the LPG ORDINANCE, and that
19
continuing to fill the LPG storage tank at
20
the RESIDENCE was dangerous. ... The
21
AMERIGAS DEFENDANTS’ negligent,
22
careless and reckless failure to comply with
23
the LPG ORDINANCE in conscious
24
disregard for plaintiffs’ rights and safety
25
directly and legally caused the INCIDENT
26
and caused plaintiffs’ resulting injuries and
27
damages[.]”
28
-15-
SEPARATE, STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
-Y ADJUDICATION
See Second Amended Complaint {{ 48 &
50 (attached as Exhibit 6 to Chin Decl.).
31 The 2016 California Building Standards
Code (Cal. Code Regs., Title 24) was
published July 1, 2016, with an effective
date of January 1, 2017, which covers the
Building Code (Part 2), Mechanical Code
(Part 4), Plumbing Code (Part 5) and Fire
10
Code (Part 9).
11
12
See Chin Decl. at ] 2.
ne 13
BE
Se 32. On November 22, 2016, the Placer County
14
Board of Supervisors passed Ordinance No.
15
5847-B, whereby the Board “codifie[d] its
16
adoption of the 2016 California Building
17
Standards Code as amended by re-
18
enactment of Placer County Code, Chapter
19
15, Article 15.04, as set forth in Exhibit ‘A’,
20
which is attached ... and incorporated
21
herein as if set forth in full.”
22
23
See Section 3 of Placer County Ordinance
24
No. 5847-B attached to 1/23/17 Placer
25
County Letter to California Building
26
Standards Commission (attached as Exhibit
27
1 to Chin Decl. and as Exhibit D to
28
-16-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
Eichenberger Decl.).
33 Exhibit A to the 2016 Placer County
Ordinance No. 5847-B is Article 15.04 of
the Placer County Code.
See Exhibit A to Placer County Ordinance
No. 5847-B attached to 1/23/17 Placer
County Letter to California Building
Standards Commission (attached as Exhibit
10
1 to Chin Decl. and as Exhibit D to °
11
Eichenberger Decl.).
12
34 Unlike Article 15.04, the 2016 Placer
13
County Ordinance No. 5847-B did not
14
expressly enact Placer County Building
15
Code, Article 15.12 et seq.
16
17
See Placer County Ordinance No. 5847-B
18
attached to 1/23/17 Placer County Letter to
19
California Building Standards Commission
20
(attached as Exhibit 1 to Chin Decl. and as
21
Exhibit D to Eichenberger Decl.).
22
35. The 2016 Placer County Ordinance No.
23
5847-B also provided that: “This ordinance
24
shall take effect and be in full force thirty
25
(30) days after the date of its passage, but
26
no sooner than January 1, 2017.”
27
28
-17-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
See Section 4 of Placer County Ordinance
No. 5847-B attached to 1/23/17 Placer
County Letter to California Building
Standards Commission (attached as Exhibit
1 to Chin Decl. and as Exhibit D to
Eichenberger Decl.).
36. By letter dated January 23, 2017, Placer
County sent a copy of the 2016 Placer
County Ordinance No. 5847-B to the
10
California Building Standards Commission,
11
pursuant to California Health and Safety
12
Code § 17958 et seg., which included
13
“Placer County’s express findings and code
14
modifications” to the 2016 California
15
Building Standards Code (Cal. Code Regs.,
16
Title 24).
17
18
See 1/23/17 Placer County Letter to
19
Building Standards Commission (attached
20
as Exhibit 1 to Chin Decl. and as Exhibit D
21
to Eichenberger Decl.).
22
37 By letter dated March 27, 2017, the
23
California Building Standards Commission
24
advised Placer County of its determination
25
regarding the 2016 Placer County
26
Ordinance No. 5847-B with express
27
findings received from [Placer County] on
28
-~18-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
January 26, 2017...[which] contain[ed] one
ordinance, No. 5847-B, modifying
provisions of the 2016 California Building
Standards Code in Title 24, California Code
of Regulations (code), and express findings
complying with Health and Safety Code
Sections 17958.7 and 18941.5.”
See 3/27/17 Building Standards
10
Commission Letter to Placer County
11
(attached as Exhibit 2 to Chin Decl. and as
12
Exhibit E to Eichenberger Decl.).
13
38 In the March 27, 2017 letter, the California
14
Building Standards Commission further
15
stated: “The code modifications [in
16
Ordinance No. 5847-B] are accepted for
17
filing and are enforceable.”
18
19
See 3/27/17 Building Standards
20
Commission Letter to Placer County
21
(attached as Exhibit 2 to Chin Decl. and as
22
Exhibit E to Eichenberger Decl.).
23
39. The California Department of General
24
Services’ website shows that the California
25
Building Standards Commission only
26
accepted for filing one local amendment to
27
the 2016 Building Standards Code from
28
-19-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
Placer County, which was Ordinance No.
5847-B.
See 2016 Local Amendments to Building
Standards — Ordinances Received for Filing
(attached as Exhibit 4 to Chin Decl.).
40 Defendant AmeriGas Propane, L.P. was the
only AmeriGas corporate entity that
delivered propane to the 1509 Christy Lane
10
residence.
11
12
See Wagner Decl. § 7.
13
41 AmeriGas, Inc., AmeriGas Propane, Inc.,
at 14
and AmeriGas L.P. are three separate
15
corporate entities affiliated through the
16
AmeriGas trade name, with each corporate
17
entity maintaining its own corporate
18
records, finances, and separate assets and
19
liabilities.
20
21
See Wagner Decl. ff 2 - 6.
22
42 When asked to produce documents in
23
support of their Fourth Cause of Action
24
against AmeriGas Propane, Inc. for
25
negligence per se, Plaintiffs “refer[red] the
26
propounding party to the documents
27
defendant AmeriGas Propane, LP has
28
-20-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
produced in this litigation to date,” which
does not implicate AmeriGas Propane,
Inc.—a separate entity.
See Plaintiff Lopez’s Response to RFP No.
5 (attached as Exhibit 6 to Chin Decl.);
Plaintiff Solis’ Response to RFP No. 5
(attached as Exhibit 7 to Chin Decl.).
43 When asked to produce documents in-
10
support of their Fourth Cause of Action
11
against AmeriGas, Inc. for negligence per
12
se, Plaintiffs “refer[red] the propounding
=e 13
sé party to the documents defendant AmeriGas
ae 14
as
as Propane, LP has produced in this litigation
BE
15
to date,” which does not implicate
16
AmeriGas, Inc.—a separate entity.
17
18
See Plaintiff Lopez’s Response to RFP No.
19
6 (attached as Exhibit 6 to Chin Decl.);
20
Plaintiff Solis’ Response to RFP No. 6
21
(attached as Exhibit 7 to Chin Decl.).
22
44 In the Residential Propane Supply
23
Agreement with the homeowner of the 1509
24
Christy Lane residence, it states:
25
“Customer is solely responsible for the
26
maintenance and repair of Customer’s entire
27
propane system.”
28
-21-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
See Residential Propane Supply Agreement
at | 4 (attached as Exhibit 14 to Chin Decl.)
45 Chief Craig Harvey, one of the first
responders to the incident, did not
definitively determine that the incident was
caused by a pre-fire break.in the 1509
Christy Lane residence’s gas line.
9
10
See 4/30/19 Deposition of Chief Craig
11
Harvey at 82:25-83:10 & 177:21-178:13,
12
178:18-179:1 (attached as Exhibit 5 to Chin
13
Decl.).
14
15
16
RELIEF: PUNITIVE DAMAGES
17
UNDISPUTED MATERIAL FACTS AND PLAINTIFFS’ RESPONSE AND
1 SUPPORTING EVIDENCE SUPPORTING EVIDENCE
19
46. Plaintiffs alleged that the conduct described
20
in their Third Cause of Action for
21
Negligence against the AmeriGas
22
Defendants “evidences despicable conduct,
23
carried out with a willful and conscious
24
disregard for the rights and safety of
25
plaintiffs pursuant to the provisions of
26
California Civil Code Section 3294.”
27
28
-22-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
See Second Amended Complaint { 41
(attached as Exhibit 6 to Chin Decl.).
47 Plaintiffs alleged that: “The AMERIGAS
DEFENDANTS negligent, careless and
reckless failure to comply with the LPG
ORDINANCE in conscious disregard for
plaintiffs’ rights and safety directly and
legally caused the INCIDENT and caused
plaintiffs’ resulting injuries and damages[.]”
10
11
See Second Amended Complaint { 50
12
(attached as Exhibit 6 to Chin Decl.).
13
48 The AmeriGas Defendants’ organizational
as 14
a8
me core values include their commitment “to the
a& 15
safety of our employees, customers, and
16
general public, as well as compliance with
17
applicable statutes, regulations, and
18
ordinances throughout our operations.
19
20
See Wagner Decl. at § 9; AmeriGas’ Safety
21
Series Safety Policy (attached as Exhibit 9 to
22
Chin Decl.)
23
49. It is the AmeriGas company expectation that
24
each AmeriGas employee conduct
25
themselvés in.accordance with the
26
organization’s core value on safety.
27
28
-23-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTE] >
SUMMARY ADJUDICATION
See Wagner Decl. at § 8; AmeriGas’ Safety
Series Safety Policy (attached as Exhibit 9 to
Chin Decl.)
50. AmeriGas employs Field Safety Managers to
conduct safety audits of safety standards and
behavioral expectations of its district
facilities and operations.
See Wagner Decl. at J 10
10
Sl The.AmeriGas Defendants do not have a
11
corporate policy that requires the servicing of
12
propane to customer tanks in all instances.
13
14
See Wagner Decl. at J 11
52. It is the AmeriGas organization’s expectation
16
that each AmeriGas employee in the field
17
utilize their judgment on whether to refuel a
18
propane tank based on the safety conditions
19
they observe on the ground.
20
21
See Wagner Decl. at 11
22
53 AmeriGas Propane, L.P. (as the operating
23
entity servicing propane to customers)
24
utilizes in the field safety procedures
25
whereby its employees conduct a pre-fill
26
inspection procedure and a safety tagging
27
system to tag questionable LPG
28
-24-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
configurations for further inspection prior to
refueling.
See Wagner Decl. ¥ 5; 8/21/19 Deposition of
Calvin Svoboda at 29:1-6, 29:19-25
(attached as Exhibit 10 to Chin Decl.);
8/21/19 Deposition of Osvaldo Zarate-
Sanchez at 35:9-25 (attached as Exhibit 11 to
Chin Decl.).
10
54, Plaintiffs admit that they are “not aware of
11
any writing in which an employee or agent of
12
AmeriGas explicitly stated that it is the
13
company’s policy to deliberately violate the
14
Placer County Propane Safety Ordinance.”
15
16
See Plaintiff Briceida Lopez’s Response to
17
Special Interrogatory No. 12 (attached as
18
Exhibit 12 to Chin Decl.); Plaintiff Jose
19
Solis’ Response to Special Interrogatory No.
20
12 (attached as Exhibit 13 to Chin Decl.).
21
55 Moreover, Plaintiffs admit that they do “not
22
contend that the ‘AMERIGAS
23
DEFENDANTS required their employees to
24
fill LPG INSTALLATIONS in Placer
25
County that were non-compliant’ with the
26
Placer County Propane Safety Code.”
27
28
-25-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
See Plaintiff Briceida Lopez’s Response to
Special Interrogatory No. 13 (attached as
Exhibit 12 to Chin Decl.); Plaintiff Jose
Solis’ Response to Special Interrogatory No.
13 (attached as Exhibit 13 to Chin Decl.).
Dated: October 28, 2019 REED S. LLP
By’
Hultquist (Pro Hac Vice)
10
Maytak Chin
11 Attorney for Defendant
AMERIGAS PROPANE, L.P., AMERIGAS
12 PROPANE, INC., and AMERIGAS, INC
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 26-
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
IMMARY ADJUDICATION
Preview
“ s My James T. Hultquist (Pre hac vice) IM Email: Daniel jhultquist@reedsmith.com Kirby (Pro hac vice) FILED SAN MATER COUNTY Email: dkirby@reedsmith.com Maytak Chin (State Bar No. 288155) OCT 28 2019 Email: mchin@reedsm:th.com REED SMITH LLP Clork of the Sy Gourt 101 Second Street, Suite 1800 By. ec San Francisco, CA 94195-3659 CLERC Telephone: (415) 543-8700 5U | I | | | | — ee Facsimile: (415) 391-8269 Su CIV-01696 Separae Satement of Undtputed Material Fc Attorneys for Defendant: AMERIGAS PROPANE, L.P., AMERIGAS PROPANE, INC., and AMERIGAS, INC. ee || i SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 12 IBRICEIDA LOPEZ, an individual, JOSE Case No.: 18CIV01696 SOLIS, an individual, ny 13 SEPARATE STATEMENT OF as Plaintiffs, UNDISPUTED MATERIAL FACTS IN ae 14 Vv. SUPPORT OF AMERIGAS DEFENDANTS’ 15 MOTION FOR SUMMARY JUDGMENT IPAUL BONIFACIO, an :ndividual OR, IN THE ALTERNATIVE, SUMMARY 16 MARGARET HYUN, an individual, ADJUDICATION IAMERIGAS PROPANE. INC., a corporation; e1/in 20 17 [AMERIGAS, INC., a corporation; and DOES Date: ONE through ONE-HUNDRED,, inclusive. Time: 9!00 AM 18 Dept Law and Motion Defendants 19 [Filed concurrently with Notice of Motion, MPA; RJN; Declarations of Maytak Chin, 20 Christopher Wagner, and Maxwell J. 21 Eichenberger and exhibits attached thereto; and [Proposed] Order] 22 23 24 25 26 27 28 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS Pursuant to California Rules of Court, Rule 3.1350, Defendants AmeriGas, Inc., AmeriGas| Propane, L.P., and AmeriGas Propane, Inc. (together, the “AmeriGas Defendants”) submit the| following Separate Statement of Undisputed Material Facts in support of their Motion for Summary| Judgment, or in the Alterative, Summery Adjudication. CAUSE OF ACTION # 3: NEGLIGENCE UNDISPUTED MATERIAL FACTS AND PLAINTIFFS’ RESPONSE AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 1 In paragraph 14 of their Second Amended 10 Complaint, Plaintiffs alleged: “The 11 RESIDENCE is located within Placer 12 County at an elevation of approximately 13 Se 6,245 feet above sea level. During all times as 14 ag @é Be relevant to the allegations made herein, 15 16 Article 15.12 of the Placer County Building 17 Code, entitled “Liquefied Petroleum Gas Installations” (hereinafter, the “LPG 18 19 ORDINANCE”), applied “to all real property located at an elevation of five 20 21 thousand (5,000) feet or more above sea 22 level”, including the RESIDENCE. (Placer 23 County Building Code, Article 15.12.020.) The LPG ORDINANCE mandates, among 24 other things, that LPG installations, 25 including the LPG INSTALLATION, meet 26 certain safety standards, specifications, and 27 28 -1- ~ SEPARATE STATEMENT OFUNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERN. . SUMMARY ADJUDICATION requirements. (Placer County Building Code, Article 15.12,030.)” See Second Amended Complaint§ 14 (attached as Exhibit 6 to Declaration of Maytak Chin (“Chin Decl.”)). In paragraph 15 of their Second Amended Complaint, Plaintiffs alleged that: “During all times relevant te the allegations made 10 herein, one such requirement of the LPG ll ORDINANCE was that components of LPG 12 installations, including propane riser pipes, re 13 SE be installed on the protected gable end of ae Qs 14 buildings where feasible, under a protective 15 cover, so as to avoid exposure to snow and 16 ice shedding. (Placer County Building 17 Code, Article 15.12.030(C).)” 18 19 See Second Amended Complaint § 15 20 (attached as Exhibit 6 to Chin Decl.). 21 In paragraph 16 of their Second Amended 22 Complaint, Plaintiffs alleged that: “During 23 all times relevant to the allegations made 24 herein, the propane riser pipe that 25 comprised part of the LPG 26 INSTALLATION at the RESIDENCE was 27 not located on the gable end of the building 28 -2- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION and was not under a protective covering, exposing lorig sections of the pipe to snow and ice shedding in violation of the LPG ORDINANCE.” See Second Amended Complaint 4 16 (attached as Exhibit 6 to Chin Decl.). In paragraph 17 of their Second Amended Complaint, Plaintiffs alleged that: “During 10 all times relevant to the allegations made 1 herein, the configuration of the LPG 12 ao INSTALLATION at the RESIDENCE, aé ne 13 including fact that the riser pipe was aes 14 unprotected and exposed to snow and ice in 15 violation of the LPG ORDINANCE[.].” 16 17 See Second Amended Complaint q17 18 (attached as Exhibit 6 to Chin Decl.). 19 In their Third Cause of Action for 20 negligence against the AmeriGas 21 Defendants, Plaintiffs incorporate by 22 “reference each of the allegations set forth 23 above in paragraphs 1 through 18 and make 24 them part of ... the Third Cause of Action, 25 as though fully set forth herein.” 26 27 See Second Amended Complaint { 30 28 -3- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, RY ADJUDICATION (attached as Exhibit 6 to Chin Decl.). In their Third Cause of Action for negligence against the AmeriGas Defendants, Plaintiffs allege that: “In 2015, homeowners in Placer County provided the AMERIGAS DEFENDANTS with a copy of the LPG ORDINANCE. At said time and place, the homeowners informed the AMERIGAS DEFENDANTS that many 10 LPG Installations in Placer County were not 11 in compliance with the LPG ORDINANCE, 12 that LPG vendors such as the AMERIGAS 13 DEFENDANTS were not conducting 14 annual safety inspections as required by the 15 LPG ORDINANCE, and that LPG vendors 16 such as the AMERIGAS DEFENDANTS. 17 were illegally continuing to refill LPG 18 storage tanks for customers with 19 noncompliant LPG installations.” 20 21 See Second Amended Complaint { 35 22 (attached as Exhibit 6 to Chin Decl.). 2 7. In their Third Cause of Action for 24 negligence against the AmeriGas 25 Defendants, Plaintiffs further allege that: 26 “In 2015, homeowners in Placer County 27 warned the AMERIGAS DEFENDANTS 28 -4- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS ENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION that continuing to refill the LPG storage tanks for customers with LPG installations that violated the LPG ORDINANCE was a serious and unnecessary safety risk. As a result, AMERIGAS DEFENDANTS knew, or should have known, that refilling LPG storage tanks at homes with noncompliant LPG Installations, including the LPG Installation at the RESIDENCE, was 10 dangerous.” 11 12 See Second Amended Complaint § 36 13 (attached as Exhibit 6 to Chin Decl.). 14 In their Third Cause of Action against the 15 AmeriGas Defendants, Plaintiffs allege that: 16 “In April 2017, a Placer County home with 17 an LPG Installation serviced by the 18 AMERIGAS DEFENDANTS burned down 19 after an explosion ... The investigating fire 20 authority ... concluded that the LPG 21 Installation at the home violated the LPG 22 ORDINANCE because the riser pipe was 23 not located on the protected gable end of the 24 building ...the house’s propane system was 25 in violation of the LPG ORDINANCE[.]” 26 27 See Second Amended Complaint { 37 28 -5- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION (attached as Exhibit 6 to Chin Decl.). In their Third Cause of Action against the AmeriGas Defendants, Plaintiffs further allege that: “Despite knowledge of the aforementioned 2015 warning and 2017 fire, the AMERIGAS DEFENDANTS to carelessly, recklessly, and negligently inspect, maintain, sell, install, own, control, and service the LPG INSTALLATION at 10 the RESIDENCE, including continuing to 11 refill the LPG storage tank at the 12 RESIDENCE.” 13 14 See Second.Amended Complaint J 39 (attached as Exhibit 6 to Chin Decl.). 1 10. The 2016 California Building Standards 17 Code (Cal. Code Regs., Title 24) was 18 published July 1, 2016, with an effective 19 date of January 1, 2017, which covers the 20 Building Code (Part 2), Mechanical Code 21 (Part 4), Plumbing Code (Part 5) and Fire 22 Code (Part 9). 23 24 See Chin Decl. at { 2. 25 11 On November 22, 2016, the Placer County 26 Board of Supervisors passed Ordinance No 27 5847-B, whereby the Board “codifie[d] its 28 -6- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION adoption of the 2016 California Building Standards Code as amended by re- enactment of Placer County Code, Chapter 15, Article 15.04, as set forth in Exhibit ‘A’, which is attached ... and incorporated herein as if set forth in full.” See Section 3 of Placer County Ordinance No. 5847-B attached to 1/23/17 Placer 10 County Letter to California Building 11 Standards Commission (attached as Exhibit 12 1 to Chin Decl. and as Exhibit D to ne 13 Ses Declaration of Maxwell J. Eichenberger as 14 a3 (“Eichenberger Decl.”). Be ae 15 12. Exhibit A to the 2016 Placer County 16 Ordinance No. 5847-B is Article 15.04 of 17 the Placer County Code. 18 19 See Exhibit A to Placer County Ordinancé 20 No. 5847-B attached to 1/23/17 Placer 21 County Letter to California Building 22 Standards Commission (attached as Exhibit 23 1 to Chin Decl. and as Exhibit D to 24 Eichenberger Decl.). 25 13 Unlike Article 15.04, the 2016 Placer 26 County Ordinance No. 5847-B did not 27 expressly enact Placer County Building 28 -7- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Code, Article 15.12 et seq. See Placer County Ordinance No. 5847-B attached to 1/23/17 Placer County Letter to California Building Standards Commission (attached as Exhibit 1 to Chin Decl. and as Exhibit D to Eichenberger Decl.). 14. The 2016 Placer County Ordinance No. 5847-B also provided that: “This ordinance 10 shall take effect and be in full force thirty 11 (30) days after the date of its passage, but 12 no sooner than January 1, 2017.” 13 14 See Section 4 of Placer County Ordinance 15 No. 5847-B attached to 1/23/17 Placer 16 County Letter to California Building 17 Standards Commission (attached as Exhibit 18 1 to Chin Decl. and as Exhibit D to 19 Eichenberger Decl.). 20 15 By letter dated January 23, 2017, Placer 21 County sent a copy of the 2016 Placer 22 County Ordinance No. 5847-B to the 23 California Building Standards Commission, 24 pursuant to California Health and Safety 25 Code § 17958 et seq., which included 26 “Placer County’s express findings and code 27 modifications” to the 2016 California 28 -8- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Building Standards Code (Cal. Code Regs., Title 24). See 1/23/17 Placer County Letter to Building Standards Commission (attached as Exhibit 1 to Chin Decl. and as Exhibit D to Eichenberger Decl.). 16 By. letter dated March 27, 2017, the California Building Standards Commission 10 advised Placer County of its determination ll regarding the 2016 Placer County 12 Ordinance No. 5847-B with express 13 findings “received from [Placer County] on 14 January 26, 2017...[which] contain[ed] one 15 ordinance, No. 5847-B, modifying 16 provisions of the 2016 California Building 17 Standards Code in Title 24, California Code 18 of Regulations (code), and express findings 19 complying with Health and Safety Code 20 Sections 17958.7 and 18941.5.” 21 22 See 3/27/17 Building Standards 23 Commission Letter to Placer County 24 (attached as Exhibit 2 to Chin Decl. and as 25 Exhibit E to Eichenberger Decl.). 2 17. In the March 27, 2017 letter, the California 27 Building Standards Commission further 28 -9- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNA’ . SUMMARY ADJUDICATION stated: “The code modifications [in Ordinance No. 5847-B] are accepted for filing and are enforceable.” See 3/27/17 Building Standards Commission Letter to Placer County (attached as Exhibit 2 to Chin Decl. and as Exhibit E to Eichenberger Decl.). 18 The California Department of General 10 Services’ website shows that the California 11 Building Standards Commission only 12 accepted for filing one local amendment to 13 the 2016 Building Standards Code from 14 Placer County, which was Ordinance No. 15 5847-B. 16 17 See 2016 Local Amendments to Building 18 Standards — Ordinances Received for Filing 19 (attached as Exhibit 4 to Chin Decl.). 20 19. AmeriGas, Inc., AmeriGas Propane, Inc., 21 and AmeriGas L.P. are three separate 22 corporate entities affiliated through the 23 AmeriGas trade name, with each corporate 24 entity maintaining its own corporate 25 records, finances, and separate assets and 26 liabilities. 27 28 -10- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION See Declaration of Christopher Wagner (“Wagner Decl.”) {§ 2 - 6 20 Defendant AmeriGas Propane, L.P. was the only AmeriGas corporate entity that delivered propane to the 1509 Christy Lane residence. See Wagner Decl. ¥ 7 21 When asked to produce documents in 10 support of their Third Cause of Action 11 against AmeriGas Propane, Inc. for 12 negligence, Plaintiffs “refer[red] the 13 propounding party to the documents 14 defendant AmeriGas Propane, LP has 15 produced in this litigation to date,” which 16 does not implicate AmeriGas Propane, 17 Inc,—a separate entity. 18 19 See Plaintiff Lopez’s Response to RFP No 20 2 (attached as Exhibit 7 to Chin Decl.); 21 Plaintiff Solis’ Response to RFP No. 2 22 (attached as Exhibit 8 to Chin Decl.) 23 22. When asked to produce documents in 24 support of their Third Cause of Action 25 against AmeriGas, Inc. for negligence, 26 Plaintiffs “refer[red] the propounding party 27 to the documents defendant AmeriGas 28 -ll- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF Anos DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNA’ -Y ADJUDICATION Propane, LP has produced in this litigation to date,” which does not implicate AmeriGas, Inc.—a separate entity. See Plaintiff Lopez’s Response to RFP No. 3 (attached as Exhibit 7 to Chin Decl.); Plaintiff Solis’ Response to RFP No. 3 (attached as Exhibit 8 to Chin Decl.). 23 In the Residential Propane Supply 10 Agreement with the homeowner of the 1509 11 Christy Lane residence, it states: 12 a ne “Customer is solely responsible for the Qs 13 Se maintenance and repair of Customer’s entire as 14 propane system.” we 15 16 See Residential Propane Supply Agreement 17 at { 4 (attached as Exhibit 14 to Chin Decl.) 18 24. Chief Craig Harvey, one of the first 19 responders to the incident, did not 20 definitively determine that the incident was 21 caused by a pre-fire break in the 1509 22 Christy Lane residence’s gas line. 23 24 See 4/30/19 Deposition of Chief Craig 25 Harvey at 82:25-83:10 & 177:21-178:13, 26 178:18-179:1 (attached as Exhibit 5 to Chin 27 Decl.). 28 -12- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, UMMARY ADJUDICATION . CAUSE OF ACTION # 4: NEGLIGENCE PER SE UNDISPUTED MATERIAL FACTS AND PLAINTIFFS’ RESPONSE AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 25. The Judicial Council of California Civil Jury Instruction No. 418 provides that the doctrine of “negligence per se” is an evidentiary presumption under Evidence Code § 669 rather than a separate cause of 10 action from negligence. 1 12 See CACI No. 418 (2019 Ed.) (attached as 13 Exhibit 15 to Chin Decl.). 14 26. Plaintiffs alleged that: “The LPG 15 ORDINANCE imposes duties, 16 responsibilities and obligations on vendors 17 such as the AMERIGAS DEFENDANTS, 18 including, without limitation, the duty to 19 conduct an annual inspection of the LPG 20 INSTALLATION at the RESIDENCE ‘for 21 safe operating conditions and compliance” 22 with the LPG ORDINANCE. (Placer 23 County Building Code Article 15.12.070.).” 24 25 See Second Amended Complaint § 46 26 (attached as Exhibit 6 to Chin Decl.). 27 27. Plaintiffs alleged that: “The LPG 28 -13- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ORDINANCE also prohibits the AMERIGAS DEFENDANTS from refueling any covered LPG installation, including the LPG INSTALLATION [at the residence], that fails to comply with the LPG ORDINANCE. (Placer County Building Code Article 15,12.040.)” See Second Amended Complaint | 46 10 (attached as Exhibit 6 to Chin Decl.). ll 28 Plaintiffs alleged that: “the LPG 12 ORDINANCE makes it unlawful for 13 vendors, such as the AMERIGAS 14 DEFENDANTS, to provide service to a 15 covered LPG installation, including the 16 LPG INSTALLATION [at the residence] 17 that does not conform with the LPG 18 ORDINANCE.” 19 20 See Second Amended Complaint { 46 21 (attached as Exhibit 6 to Chin Decl.). 22 29. Plaintiffs alleged that: “The AMERIGAS 23 DEFENDANTS, and each of them, 24 willfully and negligently failed to conduct 25 annual inspections of the LEG 26 INSTALLATION at the RESIDENCE, or 27 willfully and negligently performed such 28 -14- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION inspections such that the AMERIGAS DEFENDANTS failed to note, record, or act upon violations of the LPG ORDINANCE. The AMERIGAS DEFENDANTS instead refueled and serviced the unsafe and nonconforming LPG INSTALLATION at the RESIDENCE, in violation of the LPG ORDINANCE.” 10 11 See Second Amended Complaint J 47 12 (attached as Exhibit 6 to Chin Decl.). 13 30 Plaintiffs allege that: “During all times a 14 relevant to the allegations made herein, the Be 15 AMERIGAS DEFENDANTS knew or 16 should have known that the LPG 17 INSTALLATION at the RESIDENCE 18 violated the LPG ORDINANCE, and that 19 continuing to fill the LPG storage tank at 20 the RESIDENCE was dangerous. ... The 21 AMERIGAS DEFENDANTS’ negligent, 22 careless and reckless failure to comply with 23 the LPG ORDINANCE in conscious 24 disregard for plaintiffs’ rights and safety 25 directly and legally caused the INCIDENT 26 and caused plaintiffs’ resulting injuries and 27 damages[.]” 28 -15- SEPARATE, STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, -Y ADJUDICATION See Second Amended Complaint {{ 48 & 50 (attached as Exhibit 6 to Chin Decl.). 31 The 2016 California Building Standards Code (Cal. Code Regs., Title 24) was published July 1, 2016, with an effective date of January 1, 2017, which covers the Building Code (Part 2), Mechanical Code (Part 4), Plumbing Code (Part 5) and Fire 10 Code (Part 9). 11 12 See Chin Decl. at ] 2. ne 13 BE Se 32. On November 22, 2016, the Placer County 14 Board of Supervisors passed Ordinance No. 15 5847-B, whereby the Board “codifie[d] its 16 adoption of the 2016 California Building 17 Standards Code as amended by re- 18 enactment of Placer County Code, Chapter 19 15, Article 15.04, as set forth in Exhibit ‘A’, 20 which is attached ... and incorporated 21 herein as if set forth in full.” 22 23 See Section 3 of Placer County Ordinance 24 No. 5847-B attached to 1/23/17 Placer 25 County Letter to California Building 26 Standards Commission (attached as Exhibit 27 1 to Chin Decl. and as Exhibit D to 28 -16- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Eichenberger Decl.). 33 Exhibit A to the 2016 Placer County Ordinance No. 5847-B is Article 15.04 of the Placer County Code. See Exhibit A to Placer County Ordinance No. 5847-B attached to 1/23/17 Placer County Letter to California Building Standards Commission (attached as Exhibit 10 1 to Chin Decl. and as Exhibit D to ° 11 Eichenberger Decl.). 12 34 Unlike Article 15.04, the 2016 Placer 13 County Ordinance No. 5847-B did not 14 expressly enact Placer County Building 15 Code, Article 15.12 et seq. 16 17 See Placer County Ordinance No. 5847-B 18 attached to 1/23/17 Placer County Letter to 19 California Building Standards Commission 20 (attached as Exhibit 1 to Chin Decl. and as 21 Exhibit D to Eichenberger Decl.). 22 35. The 2016 Placer County Ordinance No. 23 5847-B also provided that: “This ordinance 24 shall take effect and be in full force thirty 25 (30) days after the date of its passage, but 26 no sooner than January 1, 2017.” 27 28 -17- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION See Section 4 of Placer County Ordinance No. 5847-B attached to 1/23/17 Placer County Letter to California Building Standards Commission (attached as Exhibit 1 to Chin Decl. and as Exhibit D to Eichenberger Decl.). 36. By letter dated January 23, 2017, Placer County sent a copy of the 2016 Placer County Ordinance No. 5847-B to the 10 California Building Standards Commission, 11 pursuant to California Health and Safety 12 Code § 17958 et seg., which included 13 “Placer County’s express findings and code 14 modifications” to the 2016 California 15 Building Standards Code (Cal. Code Regs., 16 Title 24). 17 18 See 1/23/17 Placer County Letter to 19 Building Standards Commission (attached 20 as Exhibit 1 to Chin Decl. and as Exhibit D 21 to Eichenberger Decl.). 22 37 By letter dated March 27, 2017, the 23 California Building Standards Commission 24 advised Placer County of its determination 25 regarding the 2016 Placer County 26 Ordinance No. 5847-B with express 27 findings received from [Placer County] on 28 -~18- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION January 26, 2017...[which] contain[ed] one ordinance, No. 5847-B, modifying provisions of the 2016 California Building Standards Code in Title 24, California Code of Regulations (code), and express findings complying with Health and Safety Code Sections 17958.7 and 18941.5.” See 3/27/17 Building Standards 10 Commission Letter to Placer County 11 (attached as Exhibit 2 to Chin Decl. and as 12 Exhibit E to Eichenberger Decl.). 13 38 In the March 27, 2017 letter, the California 14 Building Standards Commission further 15 stated: “The code modifications [in 16 Ordinance No. 5847-B] are accepted for 17 filing and are enforceable.” 18 19 See 3/27/17 Building Standards 20 Commission Letter to Placer County 21 (attached as Exhibit 2 to Chin Decl. and as 22 Exhibit E to Eichenberger Decl.). 23 39. The California Department of General 24 Services’ website shows that the California 25 Building Standards Commission only 26 accepted for filing one local amendment to 27 the 2016 Building Standards Code from 28 -19- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Placer County, which was Ordinance No. 5847-B. See 2016 Local Amendments to Building Standards — Ordinances Received for Filing (attached as Exhibit 4 to Chin Decl.). 40 Defendant AmeriGas Propane, L.P. was the only AmeriGas corporate entity that delivered propane to the 1509 Christy Lane 10 residence. 11 12 See Wagner Decl. § 7. 13 41 AmeriGas, Inc., AmeriGas Propane, Inc., at 14 and AmeriGas L.P. are three separate 15 corporate entities affiliated through the 16 AmeriGas trade name, with each corporate 17 entity maintaining its own corporate 18 records, finances, and separate assets and 19 liabilities. 20 21 See Wagner Decl. ff 2 - 6. 22 42 When asked to produce documents in 23 support of their Fourth Cause of Action 24 against AmeriGas Propane, Inc. for 25 negligence per se, Plaintiffs “refer[red] the 26 propounding party to the documents 27 defendant AmeriGas Propane, LP has 28 -20- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION produced in this litigation to date,” which does not implicate AmeriGas Propane, Inc.—a separate entity. See Plaintiff Lopez’s Response to RFP No. 5 (attached as Exhibit 6 to Chin Decl.); Plaintiff Solis’ Response to RFP No. 5 (attached as Exhibit 7 to Chin Decl.). 43 When asked to produce documents in- 10 support of their Fourth Cause of Action 11 against AmeriGas, Inc. for negligence per 12 se, Plaintiffs “refer[red] the propounding =e 13 sé party to the documents defendant AmeriGas ae 14 as as Propane, LP has produced in this litigation BE 15 to date,” which does not implicate 16 AmeriGas, Inc.—a separate entity. 17 18 See Plaintiff Lopez’s Response to RFP No. 19 6 (attached as Exhibit 6 to Chin Decl.); 20 Plaintiff Solis’ Response to RFP No. 6 21 (attached as Exhibit 7 to Chin Decl.). 22 44 In the Residential Propane Supply 23 Agreement with the homeowner of the 1509 24 Christy Lane residence, it states: 25 “Customer is solely responsible for the 26 maintenance and repair of Customer’s entire 27 propane system.” 28 -21- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION See Residential Propane Supply Agreement at | 4 (attached as Exhibit 14 to Chin Decl.) 45 Chief Craig Harvey, one of the first responders to the incident, did not definitively determine that the incident was caused by a pre-fire break.in the 1509 Christy Lane residence’s gas line. 9 10 See 4/30/19 Deposition of Chief Craig 11 Harvey at 82:25-83:10 & 177:21-178:13, 12 178:18-179:1 (attached as Exhibit 5 to Chin 13 Decl.). 14 15 16 RELIEF: PUNITIVE DAMAGES 17 UNDISPUTED MATERIAL FACTS AND PLAINTIFFS’ RESPONSE AND 1 SUPPORTING EVIDENCE SUPPORTING EVIDENCE 19 46. Plaintiffs alleged that the conduct described 20 in their Third Cause of Action for 21 Negligence against the AmeriGas 22 Defendants “evidences despicable conduct, 23 carried out with a willful and conscious 24 disregard for the rights and safety of 25 plaintiffs pursuant to the provisions of 26 California Civil Code Section 3294.” 27 28 -22- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION See Second Amended Complaint { 41 (attached as Exhibit 6 to Chin Decl.). 47 Plaintiffs alleged that: “The AMERIGAS DEFENDANTS negligent, careless and reckless failure to comply with the LPG ORDINANCE in conscious disregard for plaintiffs’ rights and safety directly and legally caused the INCIDENT and caused plaintiffs’ resulting injuries and damages[.]” 10 11 See Second Amended Complaint { 50 12 (attached as Exhibit 6 to Chin Decl.). 13 48 The AmeriGas Defendants’ organizational as 14 a8 me core values include their commitment “to the a& 15 safety of our employees, customers, and 16 general public, as well as compliance with 17 applicable statutes, regulations, and 18 ordinances throughout our operations. 19 20 See Wagner Decl. at § 9; AmeriGas’ Safety 21 Series Safety Policy (attached as Exhibit 9 to 22 Chin Decl.) 23 49. It is the AmeriGas company expectation that 24 each AmeriGas employee conduct 25 themselvés in.accordance with the 26 organization’s core value on safety. 27 28 -23- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTE] > SUMMARY ADJUDICATION See Wagner Decl. at § 8; AmeriGas’ Safety Series Safety Policy (attached as Exhibit 9 to Chin Decl.) 50. AmeriGas employs Field Safety Managers to conduct safety audits of safety standards and behavioral expectations of its district facilities and operations. See Wagner Decl. at J 10 10 Sl The.AmeriGas Defendants do not have a 11 corporate policy that requires the servicing of 12 propane to customer tanks in all instances. 13 14 See Wagner Decl. at J 11 52. It is the AmeriGas organization’s expectation 16 that each AmeriGas employee in the field 17 utilize their judgment on whether to refuel a 18 propane tank based on the safety conditions 19 they observe on the ground. 20 21 See Wagner Decl. at 11 22 53 AmeriGas Propane, L.P. (as the operating 23 entity servicing propane to customers) 24 utilizes in the field safety procedures 25 whereby its employees conduct a pre-fill 26 inspection procedure and a safety tagging 27 system to tag questionable LPG 28 -24- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION configurations for further inspection prior to refueling. See Wagner Decl. ¥ 5; 8/21/19 Deposition of Calvin Svoboda at 29:1-6, 29:19-25 (attached as Exhibit 10 to Chin Decl.); 8/21/19 Deposition of Osvaldo Zarate- Sanchez at 35:9-25 (attached as Exhibit 11 to Chin Decl.). 10 54, Plaintiffs admit that they are “not aware of 11 any writing in which an employee or agent of 12 AmeriGas explicitly stated that it is the 13 company’s policy to deliberately violate the 14 Placer County Propane Safety Ordinance.” 15 16 See Plaintiff Briceida Lopez’s Response to 17 Special Interrogatory No. 12 (attached as 18 Exhibit 12 to Chin Decl.); Plaintiff Jose 19 Solis’ Response to Special Interrogatory No. 20 12 (attached as Exhibit 13 to Chin Decl.). 21 55 Moreover, Plaintiffs admit that they do “not 22 contend that the ‘AMERIGAS 23 DEFENDANTS required their employees to 24 fill LPG INSTALLATIONS in Placer 25 County that were non-compliant’ with the 26 Placer County Propane Safety Code.” 27 28 -25- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION See Plaintiff Briceida Lopez’s Response to Special Interrogatory No. 13 (attached as Exhibit 12 to Chin Decl.); Plaintiff Jose Solis’ Response to Special Interrogatory No. 13 (attached as Exhibit 13 to Chin Decl.). Dated: October 28, 2019 REED S. LLP By’ Hultquist (Pro Hac Vice) 10 Maytak Chin 11 Attorney for Defendant AMERIGAS PROPANE, L.P., AMERIGAS 12 PROPANE, INC., and AMERIGAS, INC 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 26- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, IMMARY ADJUDICATION