Preview
379861658
mfg l LEWIS BRISBOIS BISGAARD & SMITH LLP
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Kw; SHAWN A. TOLIVER, SB# 148349
E E E1 E f
"T" 2 Email: Shawn.Toliver@lewisbrisbois.com
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JULIEM.AZEVED0,
2185 North Califomia B_lvd.,
SB#
Walnut Creek, Callfomla 94596
151618
Email: Julie.Azevedo@lewisbrisbois.com
Suite 300
QC? 3 0
’-
2019
Q“a Telephone:
Facsimile:
925.357.3456
925.478.3260
Attorneys for Defendants PAUL BONIFACIO
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Supem; gggm
and MARGARET HYUN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
BRICEIDA LOPEZ, an individual, JO SE CASE NO. 18—CIV—0 1 696
SOLIS, an individual,
MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF
13 DEFENDANTS PAUL BONIFACIO AND
vs. MARGARET HYUN’S MOTION FOR
14 SUMJVIARY ADJUDICATION
PAUL BONIFACIO, an individual,
15 MARGARET HYUN, an individual, Date: January 17, 2020
AMERIGAS PROPANE, L.P., a business Time: 9:00 a.m.
16 entity, AIVIERIGAS PROPANE, INC, a Dept.: Law & Motion
corporation, AMERIGAS, INC, a corporation,
17 and DOES ONE thorough ONE-HUNDRED, Action Filed: April 6, 2018
inclusive, Trial Date: February 18, 2_OZO____,__. _ . . . - ~-
18 1s—clv—o1696
Defendants‘ msgirandum inSup;
and Authorities
of Points
i
19 2107117
1‘
20 I. m_____ t
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_V v_ _ _ ,___
21 Defendants PAUL BONIFACIO and MARGARET HYUN (“Defend'ahts”) bring this
22 motion for summary adjudication seeking judicial determination that the alleged negligence of
23 Defendant Paul Bonifacio did not cause the explosion and fire that injured plaintiffs BRICEIDA
24 LOPEZ and JOSE SOLIS (“Plaintiffs”), and therefore summary adjudication 0f this issue should
25 be granted.
26 The parties to this action, by and through their respective counsel of record have
27 Stipulated, and the Court has Ordered, that Defendants are allowed to file this Motion for
28 Summary Adjudication of a legal issue that does not completely dispose of a cause 0f action
LEWIS
BRISBOIS 4848—0341495“
1
BlsGAARD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND
gem NBS MARGARET HYUN’S MOTION FOR SUMIVIARY ADJUDICATION
pursuant to California Code of Civil Procedure section 437c(t).
II. STATEMENT OF FACTS < I
ROOM
Defendants Paul Bonifacio and Margaret Hyun purchased a home at 1509 Christy Lane,
Olympic Valley, California (“the Christy Lane property”) on April 7, 2016. (UMF No. 1.) The
home had a gas propane system, and the propane tank and lines were present When Defendants
purchased the Christy Lane property. (UMF No. 2.) Defendants did not make any modifications
\OWQONUI
to the propane installation or system at the Christy Lane property since their purchase of the home
two years before the fire. (UIVIF No. 3.)
In mid—December of 2016, Mr. Bonifacio disconnected the gas dryer at the Christy Lane
10 property. (UMF N0. 4.) Upon removing the gas dryer, Mr. Bonifacio “disconnected the gas line
11 from the gas dryer by using a wrench t0 loosen the nut, then [he] used [his] hands to remove the
12 nut” before “turning the gas valve to the ‘off’ position as tightly as [he] could.” (UNEF No. 5.) He
l3 did not cap the disconnected pipe. (UW No. 6.) Mr. Bonifacio installed a used electric dryer to
14 replace the gas dryer. (Deposition ofPaul Bonifacio [“Bonifacio Depo.”], Exhibit C, 1922-13 and
15 2224-7.) Mr. Bonifacio never smelled gas around the dryer or anywhere in the house. (Bonifacio
16 Depo., Exhibit C, 21 :21-25.)
l7 On March 17, 201 8, an explosion and structure fire occurred at the Christthan§ property.
l8 (UMP No. 7.). Plaintiffs, Who were cleaning the interior of the home, were inside the structure
19 when the explosion occurred. (UIVIF No. 8.) Plaintiffs were injured in the explosion and
20 subsequent fire. (UMP No. 8.)
21 Chief Allen Riley with the Squaw Valley Fire Department investigated the fire and
22 prepared a report following their investigation of the fire, concluding there was “likely a gas leak
23 from a broken LPG pipe on the snow shed side of the structure. The gas collected in the lowest
24 level of the structure until the gas found an ignition source which resulted in an explosion and a
25 subsequent stmcture fire. The probable ignition source of {he gas was the house cleaners using the
26 washer/dryer located in the basemen .”
(UMP No. 9.)
27 Fire Chief Craig Harvey, With the Truckee Fire Protection District, also prepared a report
LEWIS
28 following his investigation of the explosion and fire. (UMP No. 10..) Chief Harvey reported that
BRISBOIS 4848-0341495“
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BiseAARD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND
&SMIHup
AUOMEYS AT LAW MARGARET HYUN’S MOTION FOR SUMIVIARY ADJUDICATION
based on his investigation there was a “probable gas explosion prior to fire.” He noted the
following possible contributing factors: snow bound, lack of immediate access; possible broken
exterior gas line, probable pre—fire; LPG piping located on the snow shed side of the structure;
possible ignition source of the gas was the house cleaners’ use of the washer and dryer located in
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the basement, LPG gas setfling/collecting in the basement; probable gas explosion prior to fire.
(UMP No. 11.)
On July 16, 2019, Plaintiffs filed a Second Amended Complaint alleging that Defendants,
as the owners of the Christy Lane property, were negligent for failing to inspect, manage and
maintain the propane gas installation system, and for violating Article 15.12 of the Placer County
Building Code, which caused plaintiffs’ injuries and damages. (Index of Documentary Evidence
[“Index”], Exhibit I, Second Amended Complaint.)
Defendants’ motion addresses Plaintiffs’ claim of negligence related to the disconnection
and removal 0f the gas dryer.
Defendants hired John White With Fire Cause Analysis to preserve the Christy Lane
structure and remnants following the explosion and fire. (Declaration of John P. White [“White
Decl.”], fl 3.) On March 26, 201 8, nine days after the fire, Mr. White met with local fire officials
and secured the Christy Lane property to preserve the evidence field atthe Christy Lane property.
I
(UMF No. 12.)
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On May 29, 201 8, Mr. White participated in a joint inspection of the Christy Lane property
-which involved reconstructing sections of the gas line from the structure exterior and examination
0f the fittings on that piping. (UMF No. 13.) The inspection involved excavation of the gas
piping around the southeast perimeter of the structure and throughout the structure interior. (U1V[F
No. 13.) Sections of pipes were collected for laboratory inspection. (UMF No. 13.) Due to the
safety hazard created by instability of the structure, some parts 0f the propane system could not be
accessed without additional heavy equipment.
On August 6, 201 8, Mr. White, Plaintiffs, and the AmeriGas defendants’ experts met at the
Christy Lane property. (UMF No. 14.) Heavy equipment was utilized to secure the gas
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appliances and test supply piping. (UMF No. 14.) The propane appliances and pipes were
LEWIS
BRISBOIS 4848—0341495“
3
BISGAARD NEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND
&SMIHI1P
AHORNEYS AI LAW MARGARET HYUN’S MOTION FOR SUMlVIARY ADIUDICATION
removed from the Christy Lane property, attempting to preserve the formation and layout of the
pipes at the property. (UMF No. 14.) The pipes were wrapped in plastic t0 preserve them and
taken by Fire Cause Analysis evidence technicians to the Fire Cause Analysis facility in Berkeley,
California Where they were preserved pending filrther expert review and analysis. (UMF No. 15.)
On April 18, 2019, experts retained by Defendants, Plaintiffs and the AmeriGas defendants
\OWQG\UI£MNH
met at Fire Cause Analysis in Berkeley to inspect and test the propane pipes which were removed
from the Christy Lane property, in the general orientation that they were in at the time of the
subj ect explosion and fire. (UMF N0. 16.) Various pressure tests were performed of various
portions of the pipe. A pressure test was performed on a three—foot long section of pipe With a
valve that was identified as the pipe and valve that at one time, serviced the gas dryer at the
Christy Lane property. (UMP No. 17.) The gas dryer had been removed prior to the fire and
explosion.
Mechanical Engineer Steve Virostek Visually inspected the pipe and valve prior to testing
and observed that the valve was in the “off” position. (UIVIF No. 18.) The pipe and valve had not
been modified or adjusted since they were removed from the Christy Lane property following the
explosion and fire. (UMP No. l9) A leak check solution was applied to the three-foot long
section 0f pipe with a valve to determine if there was a leak. (UNIF No. 20.) If a leak exists, it is
revealed in the creation of bubbles, Which did not occur during the leak check test. (UMP No. 20.)
A “leak down” pressure test was completed on the same three-foot section of the pipe with
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the valve, Which revealed a small leak somewhere
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in the pipe. (UMF No. 21.) Experts concluded
that the small leak could not have been the source 0f propane Which ultimately resulted in the
explosion and fire at the Christy Lane property. (UMF No. 22.) Further, itwould be very unlikely
for a valve, like the one tested on the three-foot long section of pipe, not to leak following the
involvement in an explosion, fire and structure collapse, similar t0 the one that occurred at the
Christy Lane property. (Declaration of Steve Virostek [“Virostek Decl.”, 1} 9.) Based on these test
results, the experts concluded that it ismore likely than not that the pipe and valve that at one time
serviced the gas dryer, were not leaking at the time of the subj ect explosion and fire. (UNIF N0.
23.)
LEWIS
BRISBOIS 4848-0341—4954.1
4
BISGAARD MEMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT OF DEFENDANTS PAUL BONIFACIO AND
asmn-Iup
ATIOIWEYS AI [AW MARGARET HYUN’S MOTION FOR SUMIVIARY ADIUDICATION
III. STANDARD FOR SUMMARY ADJUDICATION
Code of Civil Procedure section 43 7c provides, in pertinent part:
(a)(l) A party may move for summary judgment in an action or
proceeding contended that the action has no merit
if it is . ...
**=’:
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(b)(l) The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of
which judicial notice shall or may be taken .. ..
***
(c) The motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a matter of
law. In determining if the papers show that there is no triable issue as
to any material fact, the court shall consider all of the evidence set forth
in the papers, .. .and all inferences reasonably deducible fiom the
evidence . ...
* i:
2’:
(o) A cause of action has no merit if either of the following exists:
(1) One 0r more of the elements 0f the cause of action
cannot be separately established, even if that element is
separately pleaded.
A party may move for summary adjudication of a leg; iswsue or a claim for damages that
does not completely dispose of a cause of action if all partiessubmit a joint stipulation stating the
issues to be adjudicated, and a declaration that the motion will fithher the interest ofjudicial
mqamthHoeooanI-BUJNr—Ic
economy by decreasing trial time 0r significantly increase the likelihood of settlement. (Code Civ.
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Proc. § 437C, subd. (t).) The parties hereto have stipulated to Defendants filing of this motion
seeking judicial determination that the alleged negligence of Defendant Bonifacio did not cause
the explosion and fire that injured Plaintiffs. (Exhibit J, Stipulation and Order.)
One method by Which a Defendant meets its burden of proof on summary judgment isto
present affirmative evidence (such as declarations, discovery responses and/or deposition
testimony) negating, as a matter of law, an essential element of Plaintiff’s claim. (Guz v. Bechtel
Nat’l, Inc. (2000) 24 Ca1.4th 3 17, 334; Brantley v. Pisaro (1996) 42 Ca1.App.4th 1591, 1598.) A
Defendant may do so by presenting evidence that Plaintiff does not possess, and cannot reasonably
obtain, needed evidence. (Aguilar v.Atlantic Richfield C0. (2001) 25 Ca1.4th 826, 854-855;
Union Bank v. Superior Ct. (1995) 31 Ca1.App.4th 573, 590.)
LEWIS
BRISBOIS 4848-0341495“ 5
BlseAARD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND
ecsmmup MARGARET HYUN’S MOTION FOR SU1\4MARY ADIUDICATION
ATIOMEYS A'l [AW
A second method by Which a moving party defendant meets its burden of proof is by
establishing a complete defense to plaintiff’s cause of action. (Code Civ. Proc. § 437e,
subd.(p)(2)). Once the defendant makes a prima facie showing of each element of such defense,
then the burden shifts to plaintiff to produce sufficient evidence to raise a triable issue of fact as to
the defense asserted.
\OWQONUIKUJNH
(See e.g., Allyson v. Dep ’t
ofTransp. (1997), 53 Ca1.App.4th 1304, 13 18
[“because plaintiff failed t0 raise a triable issue of fact as t0 the availability of the weather
immunity defense .. .the trial court . .. had no alternative but to grant the motion”].)
A party opposing a motion for summary judgment may not rely on conclusory allegations,
improbable inferences and unsupported speculation to defeat the motion. (Nelson v. United
Technologies (1990) 74 Ca1.App.4th 597, 614.) Instead, the opposing party must set forth the
specific facts showing that a triable issue exists as t0 that cause of action. (Union Bank v.
Superior Court (1995) 31 Ca1.App.4th 573, 587.)
IV. LEGAL ARGUMENT
To succeed on their negligence claim, Plaintiffs must demonstrate that Defendants had “a
legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal
cause of the resulting injury.” (Evan F. v.Hughson United Methodist Church (1992) 8 Cal. App.
4th 828.)
The duty 0f care owed to
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Plaintiffs by the homeowner Defendants is not disputed for
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purposes of this motion. It isalso undisputed that Defendant Bonifacio’s disconnection of the
pipe that led to the gas dryer, and his failure to cap the pipe did not contribute to the explosion and
‘
fire that caused Plaintiffs’ injuries.
Although Mr. Bonifacio’s method of removing the gas dryer may not have complied with
building codes, conjecture that this may have caused the accumulation of propane that ultimately
caused the subj ect explosion is insufficient to establish negligence on the part 0f the homeowner
Defendants. While evidence offered to establish negligence as the proximate cause of an incident
may be either direct or circumstantial, the evidence must nevertheless be substantial. (Showalter v.
Western P. R. C0. (1940) 16 Cal. 2d 460, 471.) Here, there is no evidence to support an argument
that Mr. Bonifacio’s disconnection of the gas dryer played any role in the subject explosion. To
BRISBOIS ‘
4848-0341495“
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BISGAARD MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND
&SM|H lLP
ATTOMVS AT [AW MARGARET HYUN’S MOTION FOR SUMMARY ADIUDICATION
the contrary, Engineer Steve Virostek opines, “[I]n my professional opinion, based on my
experience, knowledge, and tfaining, the leak could not have been the source of propane Which
ultimately resulted in an explosion and fire similar to one at the Christy Lane property.” (Virostek
Decl.”, 118.)
Mr. Virostek’s expert opinion
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is supported by the qircumstantial evidence that the dryer
was removed (and itspropane line turned off) in December of 2016, while the subj ect explosion
occurred on March 17, 2018. If Mr. Bonifacio’s failure to cap the dryer’s propane line had been
the true cause of the propane accumulation that led to the explosion, itstands to reason that an
incident like the one that took place on March 17, 201 8 would have occurred much sooner after
the replacement of the dryer, rather than approximately fifteen months later.
Given the opinions provided by forensic engineer Virostek and the timeframe of the
incident relative t0 Mr. Bonifacio’s disconnection of the dryer, there appears to be zero direct
evidence in support of the assertion that the dryer replacement contributed to (letalone caused) the
explosion, fire, and injuries sustained by Plaintiffs, and in fact, substantial evidence that the dryer
did not have any effect on these events.
The experts concluded that the small leak discovered during testing on April 18, 2019,
could not have been the source of propane which ultimately resulted in the explosion and fire at
the Christy Lane
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property. (UMF No. 22.) Further, itwould be very unlikely for a valve, like the
one tested on the three—foot long section of pipe, not to leak following the involvement in an
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explosion, fire and structure collapse, similar to the one that occurred at the Christy Lane profierty.
(Virostek Decl.”, 9.) It ismorer likely than not that the pipe and valve that at one time serviced
{I
the gas dryer, were not leaking at the time of the March 17, 2019 explosion and fire. (UMP No.
23.)
It isundisputed that Defendants’ disconnection of the pipe leading to the gas dryer was not
the proximate or legal cause of the explosion, fire, or the resulting injuries sustained by Plaintiffs.
Therefore, summary adjudication in favor of Defendants is appropriate on this issue.
V. CONCLUSION
Based on the foregoing reasons, Defendants Paul Bonifacio and Margaret Hyun request
LEWIS
BRISBOIS 4848-0341495“
7
BISGAARD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND
astLLP MARGARET HYUN’S MOTION FOR SUMMARY ADJUDICATION
AWORNEVS AI IAW
H that this Motion for Summary Adjudication be granted on the grounds that the alleged negligence
of Defendant Paul Bonifacio in disconnecting and failing to cap the gas pipe that led to the dryer
was not the legal cause of the explosion and fire that injured Plaintiffs.
DATED: October 30, 2019 LEWIS BRISBOIS BISGAARD & SMITH LLP
©W\IO\UIRWN
By:
Ju'WAzevedo
Attorneys for Defendants PAUL BONIFACIO and
MARGARET HYUN
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BRISBOIS 4848-0341 4954.1
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BISGAARD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND
$05M"
Ivsllhlyufi MARGARET HYUN’S MOTION FOR SUNIMARY ADJUDICATION
Preview
379861658 mfg l LEWIS BRISBOIS BISGAARD & SMITH LLP ‘ Kw; SHAWN A. TOLIVER, SB# 148349 E E E1 E f "T" 2 Email: Shawn.Toliver@lewisbrisbois.com SAN MATFU w FOQNW mmm. gm 3 4 JULIEM.AZEVED0, 2185 North Califomia B_lvd., SB# Walnut Creek, Callfomla 94596 151618 Email: Julie.Azevedo@lewisbrisbois.com Suite 300 QC? 3 0 ’- 2019 Q“a Telephone: Facsimile: 925.357.3456 925.478.3260 Attorneys for Defendants PAUL BONIFACIO R “'5’ cgs L/ 0g WW I A Supem; gggm and MARGARET HYUN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO BRICEIDA LOPEZ, an individual, JO SE CASE NO. 18—CIV—0 1 696 SOLIS, an individual, MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF 13 DEFENDANTS PAUL BONIFACIO AND vs. MARGARET HYUN’S MOTION FOR 14 SUMJVIARY ADJUDICATION PAUL BONIFACIO, an individual, 15 MARGARET HYUN, an individual, Date: January 17, 2020 AMERIGAS PROPANE, L.P., a business Time: 9:00 a.m. 16 entity, AIVIERIGAS PROPANE, INC, a Dept.: Law & Motion corporation, AMERIGAS, INC, a corporation, 17 and DOES ONE thorough ONE-HUNDRED, Action Filed: April 6, 2018 inclusive, Trial Date: February 18, 2_OZO____,__. _ . . . - ~- 18 1s—clv—o1696 Defendants‘ msgirandum inSup; and Authorities of Points i 19 2107117 1‘ 20 I. m_____ t \ lllflllll|||||\|l\lllllll\|l\| _V v_ _ _ ,___ 21 Defendants PAUL BONIFACIO and MARGARET HYUN (“Defend'ahts”) bring this 22 motion for summary adjudication seeking judicial determination that the alleged negligence of 23 Defendant Paul Bonifacio did not cause the explosion and fire that injured plaintiffs BRICEIDA 24 LOPEZ and JOSE SOLIS (“Plaintiffs”), and therefore summary adjudication 0f this issue should 25 be granted. 26 The parties to this action, by and through their respective counsel of record have 27 Stipulated, and the Court has Ordered, that Defendants are allowed to file this Motion for 28 Summary Adjudication of a legal issue that does not completely dispose of a cause 0f action LEWIS BRISBOIS 4848—0341495“ 1 BlsGAARD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND gem NBS MARGARET HYUN’S MOTION FOR SUMIVIARY ADJUDICATION pursuant to California Code of Civil Procedure section 437c(t). II. STATEMENT OF FACTS < I ROOM Defendants Paul Bonifacio and Margaret Hyun purchased a home at 1509 Christy Lane, Olympic Valley, California (“the Christy Lane property”) on April 7, 2016. (UMF No. 1.) The home had a gas propane system, and the propane tank and lines were present When Defendants purchased the Christy Lane property. (UMF No. 2.) Defendants did not make any modifications \OWQONUI to the propane installation or system at the Christy Lane property since their purchase of the home two years before the fire. (UIVIF No. 3.) In mid—December of 2016, Mr. Bonifacio disconnected the gas dryer at the Christy Lane 10 property. (UMF N0. 4.) Upon removing the gas dryer, Mr. Bonifacio “disconnected the gas line 11 from the gas dryer by using a wrench t0 loosen the nut, then [he] used [his] hands to remove the 12 nut” before “turning the gas valve to the ‘off’ position as tightly as [he] could.” (UNEF No. 5.) He l3 did not cap the disconnected pipe. (UW No. 6.) Mr. Bonifacio installed a used electric dryer to 14 replace the gas dryer. (Deposition ofPaul Bonifacio [“Bonifacio Depo.”], Exhibit C, 1922-13 and 15 2224-7.) Mr. Bonifacio never smelled gas around the dryer or anywhere in the house. (Bonifacio 16 Depo., Exhibit C, 21 :21-25.) l7 On March 17, 201 8, an explosion and structure fire occurred at the Christthan§ property. l8 (UMP No. 7.). Plaintiffs, Who were cleaning the interior of the home, were inside the structure 19 when the explosion occurred. (UIVIF No. 8.) Plaintiffs were injured in the explosion and 20 subsequent fire. (UMP No. 8.) 21 Chief Allen Riley with the Squaw Valley Fire Department investigated the fire and 22 prepared a report following their investigation of the fire, concluding there was “likely a gas leak 23 from a broken LPG pipe on the snow shed side of the structure. The gas collected in the lowest 24 level of the structure until the gas found an ignition source which resulted in an explosion and a 25 subsequent stmcture fire. The probable ignition source of {he gas was the house cleaners using the 26 washer/dryer located in the basemen .” (UMP No. 9.) 27 Fire Chief Craig Harvey, With the Truckee Fire Protection District, also prepared a report LEWIS 28 following his investigation of the explosion and fire. (UMP No. 10..) Chief Harvey reported that BRISBOIS 4848-0341495“ 2 BiseAARD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND &SMIHup AUOMEYS AT LAW MARGARET HYUN’S MOTION FOR SUMIVIARY ADJUDICATION based on his investigation there was a “probable gas explosion prior to fire.” He noted the following possible contributing factors: snow bound, lack of immediate access; possible broken exterior gas line, probable pre—fire; LPG piping located on the snow shed side of the structure; possible ignition source of the gas was the house cleaners’ use of the washer and dryer located in wmfiQUI£OJNH the basement, LPG gas setfling/collecting in the basement; probable gas explosion prior to fire. (UMP No. 11.) On July 16, 2019, Plaintiffs filed a Second Amended Complaint alleging that Defendants, as the owners of the Christy Lane property, were negligent for failing to inspect, manage and maintain the propane gas installation system, and for violating Article 15.12 of the Placer County Building Code, which caused plaintiffs’ injuries and damages. (Index of Documentary Evidence [“Index”], Exhibit I, Second Amended Complaint.) Defendants’ motion addresses Plaintiffs’ claim of negligence related to the disconnection and removal 0f the gas dryer. Defendants hired John White With Fire Cause Analysis to preserve the Christy Lane structure and remnants following the explosion and fire. (Declaration of John P. White [“White Decl.”], fl 3.) On March 26, 201 8, nine days after the fire, Mr. White met with local fire officials and secured the Christy Lane property to preserve the evidence field atthe Christy Lane property. I (UMF No. 12.) axUIAwNchmanUI-BUJNHO NNNNNNNNNHHHHHHHr—AHH On May 29, 201 8, Mr. White participated in a joint inspection of the Christy Lane property -which involved reconstructing sections of the gas line from the structure exterior and examination 0f the fittings on that piping. (UMF No. 13.) The inspection involved excavation of the gas piping around the southeast perimeter of the structure and throughout the structure interior. (U1V[F No. 13.) Sections of pipes were collected for laboratory inspection. (UMF No. 13.) Due to the safety hazard created by instability of the structure, some parts 0f the propane system could not be accessed without additional heavy equipment. On August 6, 201 8, Mr. White, Plaintiffs, and the AmeriGas defendants’ experts met at the Christy Lane property. (UMF No. 14.) Heavy equipment was utilized to secure the gas oo\l appliances and test supply piping. (UMF No. 14.) The propane appliances and pipes were LEWIS BRISBOIS 4848—0341495“ 3 BISGAARD NEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND &SMIHI1P AHORNEYS AI LAW MARGARET HYUN’S MOTION FOR SUMlVIARY ADIUDICATION removed from the Christy Lane property, attempting to preserve the formation and layout of the pipes at the property. (UMF No. 14.) The pipes were wrapped in plastic t0 preserve them and taken by Fire Cause Analysis evidence technicians to the Fire Cause Analysis facility in Berkeley, California Where they were preserved pending filrther expert review and analysis. (UMF No. 15.) On April 18, 2019, experts retained by Defendants, Plaintiffs and the AmeriGas defendants \OWQG\UI£MNH met at Fire Cause Analysis in Berkeley to inspect and test the propane pipes which were removed from the Christy Lane property, in the general orientation that they were in at the time of the subj ect explosion and fire. (UMF N0. 16.) Various pressure tests were performed of various portions of the pipe. A pressure test was performed on a three—foot long section of pipe With a valve that was identified as the pipe and valve that at one time, serviced the gas dryer at the Christy Lane property. (UMP No. 17.) The gas dryer had been removed prior to the fire and explosion. Mechanical Engineer Steve Virostek Visually inspected the pipe and valve prior to testing and observed that the valve was in the “off” position. (UIVIF No. 18.) The pipe and valve had not been modified or adjusted since they were removed from the Christy Lane property following the explosion and fire. (UMP No. l9) A leak check solution was applied to the three-foot long section 0f pipe with a valve to determine if there was a leak. (UNIF No. 20.) If a leak exists, it is revealed in the creation of bubbles, Which did not occur during the leak check test. (UMP No. 20.) A “leak down” pressure test was completed on the same three-foot section of the pipe with NNNNNNNNNHHHHHHHHHH the valve, Which revealed a small leak somewhere “\IQUIAMNHOWWQQUlthHG in the pipe. (UMF No. 21.) Experts concluded that the small leak could not have been the source 0f propane Which ultimately resulted in the explosion and fire at the Christy Lane property. (UMF No. 22.) Further, itwould be very unlikely for a valve, like the one tested on the three-foot long section of pipe, not to leak following the involvement in an explosion, fire and structure collapse, similar t0 the one that occurred at the Christy Lane property. (Declaration of Steve Virostek [“Virostek Decl.”, 1} 9.) Based on these test results, the experts concluded that it ismore likely than not that the pipe and valve that at one time serviced the gas dryer, were not leaking at the time of the subj ect explosion and fire. (UNIF N0. 23.) LEWIS BRISBOIS 4848-0341—4954.1 4 BISGAARD MEMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT OF DEFENDANTS PAUL BONIFACIO AND asmn-Iup ATIOIWEYS AI [AW MARGARET HYUN’S MOTION FOR SUMIVIARY ADIUDICATION III. STANDARD FOR SUMMARY ADJUDICATION Code of Civil Procedure section 43 7c provides, in pertinent part: (a)(l) A party may move for summary judgment in an action or proceeding contended that the action has no merit if it is . ... **=’: ©WQO\UIAUJNH (b)(l) The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken .. .. *** (c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, .. .and all inferences reasonably deducible fiom the evidence . ... * i: 2’: (o) A cause of action has no merit if either of the following exists: (1) One 0r more of the elements 0f the cause of action cannot be separately established, even if that element is separately pleaded. A party may move for summary adjudication of a leg; iswsue or a claim for damages that does not completely dispose of a cause of action if all partiessubmit a joint stipulation stating the issues to be adjudicated, and a declaration that the motion will fithher the interest ofjudicial mqamthHoeooanI-BUJNr—Ic economy by decreasing trial time 0r significantly increase the likelihood of settlement. (Code Civ. NNNNNNNNNHHHHHHHr—IHH Proc. § 437C, subd. (t).) The parties hereto have stipulated to Defendants filing of this motion seeking judicial determination that the alleged negligence of Defendant Bonifacio did not cause the explosion and fire that injured Plaintiffs. (Exhibit J, Stipulation and Order.) One method by Which a Defendant meets its burden of proof on summary judgment isto present affirmative evidence (such as declarations, discovery responses and/or deposition testimony) negating, as a matter of law, an essential element of Plaintiff’s claim. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Ca1.4th 3 17, 334; Brantley v. Pisaro (1996) 42 Ca1.App.4th 1591, 1598.) A Defendant may do so by presenting evidence that Plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Aguilar v.Atlantic Richfield C0. (2001) 25 Ca1.4th 826, 854-855; Union Bank v. Superior Ct. (1995) 31 Ca1.App.4th 573, 590.) LEWIS BRISBOIS 4848-0341495“ 5 BlseAARD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND ecsmmup MARGARET HYUN’S MOTION FOR SU1\4MARY ADIUDICATION ATIOMEYS A'l [AW A second method by Which a moving party defendant meets its burden of proof is by establishing a complete defense to plaintiff’s cause of action. (Code Civ. Proc. § 437e, subd.(p)(2)). Once the defendant makes a prima facie showing of each element of such defense, then the burden shifts to plaintiff to produce sufficient evidence to raise a triable issue of fact as to the defense asserted. \OWQONUIKUJNH (See e.g., Allyson v. Dep ’t ofTransp. (1997), 53 Ca1.App.4th 1304, 13 18 [“because plaintiff failed t0 raise a triable issue of fact as t0 the availability of the weather immunity defense .. .the trial court . .. had no alternative but to grant the motion”].) A party opposing a motion for summary judgment may not rely on conclusory allegations, improbable inferences and unsupported speculation to defeat the motion. (Nelson v. United Technologies (1990) 74 Ca1.App.4th 597, 614.) Instead, the opposing party must set forth the specific facts showing that a triable issue exists as t0 that cause of action. (Union Bank v. Superior Court (1995) 31 Ca1.App.4th 573, 587.) IV. LEGAL ARGUMENT To succeed on their negligence claim, Plaintiffs must demonstrate that Defendants had “a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Evan F. v.Hughson United Methodist Church (1992) 8 Cal. App. 4th 828.) The duty 0f care owed to NNNNNNNNNHHHHHHHHHt—I Plaintiffs by the homeowner Defendants is not disputed for chxmAMNHewwqcxm-BWNHc purposes of this motion. It isalso undisputed that Defendant Bonifacio’s disconnection of the pipe that led to the gas dryer, and his failure to cap the pipe did not contribute to the explosion and ‘ fire that caused Plaintiffs’ injuries. Although Mr. Bonifacio’s method of removing the gas dryer may not have complied with building codes, conjecture that this may have caused the accumulation of propane that ultimately caused the subj ect explosion is insufficient to establish negligence on the part 0f the homeowner Defendants. While evidence offered to establish negligence as the proximate cause of an incident may be either direct or circumstantial, the evidence must nevertheless be substantial. (Showalter v. Western P. R. C0. (1940) 16 Cal. 2d 460, 471.) Here, there is no evidence to support an argument that Mr. Bonifacio’s disconnection of the gas dryer played any role in the subject explosion. To BRISBOIS ‘ 4848-0341495“ 6 BISGAARD MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND &SM|H lLP ATTOMVS AT [AW MARGARET HYUN’S MOTION FOR SUMMARY ADIUDICATION the contrary, Engineer Steve Virostek opines, “[I]n my professional opinion, based on my experience, knowledge, and tfaining, the leak could not have been the source of propane Which ultimately resulted in an explosion and fire similar to one at the Christy Lane property.” (Virostek Decl.”, 118.) Mr. Virostek’s expert opinion WWQ¢UIBDJNH is supported by the qircumstantial evidence that the dryer was removed (and itspropane line turned off) in December of 2016, while the subj ect explosion occurred on March 17, 2018. If Mr. Bonifacio’s failure to cap the dryer’s propane line had been the true cause of the propane accumulation that led to the explosion, itstands to reason that an incident like the one that took place on March 17, 201 8 would have occurred much sooner after the replacement of the dryer, rather than approximately fifteen months later. Given the opinions provided by forensic engineer Virostek and the timeframe of the incident relative t0 Mr. Bonifacio’s disconnection of the dryer, there appears to be zero direct evidence in support of the assertion that the dryer replacement contributed to (letalone caused) the explosion, fire, and injuries sustained by Plaintiffs, and in fact, substantial evidence that the dryer did not have any effect on these events. The experts concluded that the small leak discovered during testing on April 18, 2019, could not have been the source of propane which ultimately resulted in the explosion and fire at the Christy Lane NNNNNNNNNHHt—IHr—nt—IHHHH property. (UMF No. 22.) Further, itwould be very unlikely for a valve, like the one tested on the three—foot long section of pipe, not to leak following the involvement in an OOQONUI-BWNHOwooanI-thr-tc explosion, fire and structure collapse, similar to the one that occurred at the Christy Lane profierty. (Virostek Decl.”, 9.) It ismorer likely than not that the pipe and valve that at one time serviced {I the gas dryer, were not leaking at the time of the March 17, 2019 explosion and fire. (UMP No. 23.) It isundisputed that Defendants’ disconnection of the pipe leading to the gas dryer was not the proximate or legal cause of the explosion, fire, or the resulting injuries sustained by Plaintiffs. Therefore, summary adjudication in favor of Defendants is appropriate on this issue. V. CONCLUSION Based on the foregoing reasons, Defendants Paul Bonifacio and Margaret Hyun request LEWIS BRISBOIS 4848-0341495“ 7 BISGAARD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND astLLP MARGARET HYUN’S MOTION FOR SUMMARY ADJUDICATION AWORNEVS AI IAW H that this Motion for Summary Adjudication be granted on the grounds that the alleged negligence of Defendant Paul Bonifacio in disconnecting and failing to cap the gas pipe that led to the dryer was not the legal cause of the explosion and fire that injured Plaintiffs. DATED: October 30, 2019 LEWIS BRISBOIS BISGAARD & SMITH LLP ©W\IO\UIRWN By: Ju'WAzevedo Attorneys for Defendants PAUL BONIFACIO and MARGARET HYUN NNNNNNNNNHHHHr—IHHHHr—t MQQUI&DJNH©\OOO\I¢UIAMNHG BRISBOIS 4848-0341 4954.1 8 BISGAARD MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PAUL BONIFACIO AND $05M" Ivsllhlyufi MARGARET HYUN’S MOTION FOR SUNIMARY ADJUDICATION