Preview
pa
James T. Hultquist (Pro hac vice) HEAEB
Email: jhultquist@rcedsmith.com SAN MATEQ QOHNW
‘
Daniel Kirby (Pro hac vice) .
'
JAN V
9 2020
Email: dkirby@reedsmith.com
Maytak Chin (State Bar N0. 288 1 5-5)
Email: mchin@reedsmith.com
REED SMITH LL?
101 Second Street, Suite 1800
San Francisco, CA 94105-3659
Telephone:
\OOOVONUI-bLMN
(415) 543—8700
Facsimile: (415) 391-8269
Attorneys for Defendants
E AMERIGAS PROPANE, L.P., AMERIGAS
PROPANE, INC, and AMERIGAS, INC.
o
p—g
SUPERIOR COURT OF THE STATE OF CALIFORNIA
Ddawaxe
:—-
-—.
of
COUNTY OF SAN MATEO
Stale
N
.—n
the
LLP
in
BRICEIDA LOPEZ,
b.)
u—a
an individual, JOSE ‘
Case No.: 18CIV01696
formcd
SMITH SOLIS, an individual,
v—n
fb
partnership
_ .
AMERIGAS DEFENDANTS’ RESPONSE
REED
p—t
Plamflffs, To PLAINTIFFS’ OBJECTIONS T0
kl!
liability
V'
EVIDENCE IN SUPPORT OF THE
ON
I—i
AMERIGAS DEFENDANTS’ MOTION
limited
A
PAUL BONIFACIO, an individual; FOR SUMMARY JUDGEMENT 0R, IN
fl
--¢
MARGARET HYUN, an individual; THE ALTERNATIVE, SUMMARY
AMERIGAS PROPANE, INCL, a corpOIation; ADJUDICATION
AMERIGAS, INC. a corporation; and DOES
H“
0G
ONE thxough ONE— HUNDRED inclusive, Date; January 14, 2020
>—I
\O
‘
Time: 9:00 a.m.
Defendants- Dept: Law and Motion
NO
[Filed concurrently with Reply Brief;
[\J
*—‘
Supplemental Declaration ofMaytak Chin and
_ -flA—-~ ——~-- -
\
exhibits thereto; Reply to AmeriGas Separate
NN 01596
'13P—Acw—
’
inBepi
Statement; Response t0 Plaintiffs Separate
and Authorities
M1emorandum01 Points
""— Statement]
24
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25
26
27
28
AMERIGAS DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OBJECTIONS TO EVIDENCE ‘IN
SUPPORT OF THE AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT OR, IN
THE ALTERNATIVE, SUMMARY ADJUDICATION
Defendants AmeriGas, Inc., AmeriGas Propane, Inc., and. AmeriGas Propane, L.P. (together
the “AmeriGas Defendants”) hereby submit the following responses to Plaintiffs" Obj ections to
Evidence Submitted by the AmeriGas Defendants in support of their Opposition to the AmeriGas
Defendants’ Motion for Summary Judgm'ent, 0r in the Alternative, Summary Adjudication.
AMERICAS DEFENDANTS’ RESPONSES TO OBJECTIONS TO EVIDENCE
\OOQQONUIAUJNH
PLAINTIFFS’ OBJECTION NO. I
Material Objected T0: Declaration 0f Christopher Wagner in Support of AmeriGas
Defendants’ Motion for Summai'y Judgment or, in the Alternative, Summary Adjudication (“Wagner
Decl.”) at 1:12 (‘J3): “AmeriGas, Inc. is the parent company of AmeriGas Propane, Inc.”
O Grounds for Objection No. 1: Lack of pers‘onal knowledge (Evid. Code, § 702,’ subd. (a));
failure t0 set forth admissible evidence in a supporting declaration (Code Civ. Proc., § 43 7c, subd.
'—‘
ochlawarc
State
N (d))-
me
LLP
in
DJ
Explanation: Although the witness claims that the facts set forth in his declaration—
formed
SMITH
-> includinggthose facts relating to the corporate structure and relationships between the AmeriGas
partnership
REED
U!
Defendants—are based on his “own personal knowledge,” his deposition testimony 0n August 6,
liabiiily
limited
O\
2019, just two and a half months before his declaration was executed, makes clear tha‘the actually
A
fl has no idea how the various AmeriGas entities are related to one another.
00 Specifically, the witness testified that he works for AmeriGas Propane, L.P., and that at the
\O time of his deposition, he was the “Director of Compliance and Regulatory Affairs,” a title he has
O held since July 1,201 9. (08/06/19 Deposition ofChristopher Wagner (“Wagner Depo.”) at 12:12—-
H 22, attached a_sExh. C to Plaintiffs’ Index of Evidence and Evidence in Opposition to the AmeriGas
N Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adj udication.) When
DJ
‘
asked whether he holds any job titlesor positions with AnleriGas, Inc. (a different AtheriGas entity),
A the witness replied:
U1
There are multiple affiliations through the AmeriGas trade name, and I’d have to
O\
have legal counsel specifically identify those different interactions and how those
names relate to one another. Bu’t I believe that all of the AmeriGas companies,
Q there is a portion of the company that’s affiliated with personnel, and then there
00
- 1 _
AMERIGAS DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OBJECTIONS TO EVIDENCE IN
SUPPORT OF THE AMERIGAS DEFENDANTS’ MO'I ION FOR SUMMARY JUDGEMENT OR, IN
THE ALTERNATIVE, SUMMARY ADJUDICATION
are others that are cross—affiliated through business-type relationships and ‘legal
standards. But I’m not directly familiar with what‘all of those are.
(1d. at 15:10—22; see also id. at 16213—1724 [witness again explaining that “there are numerous
different affiliations 0f the AmeriGas name” and that he is “not directly familiar with their
\ooowoxuxgwmr—m
association with the organization”].)
Additionally, when the witness was asked to describe both his current and prior job duties at
AmeriGas Propane, L.P., his responses revealed that he is not currently doing nor has he ever done
any work that would expose him t0 first—hand knowledge of the corporate structure and relationships
between the various AmeriGas entities.(See Wagner Depo. at 14: 13—1 5:9 [explaining that in his
current position, he deals primarily with' federal, state, and local codes and standards, offering
Delaware
of intexpretations thereof and interacting with regulatory agencies to ensure compliance therewith]; see v
Sum:
LLP
lhc
in
also id. at 32:16—35:8 and Exhibit 98 thereto [explaining that previously, his role was to ensure that
formed
SMITH
AmeriGas Propane, L.P., has an “effective safety training programfl” so itsemployees can
partnership
REED “Understand and avoid the risks associated with their jobs”]‘.)
liability
Against this backdrop, it isquite plain that the matter stated in paragraph 3 of'the witness’s
limixcd
A declaration isnot based on-his personal knowledge. The statement is, therefore, inadmissible.
AmeriGas Defendants’ Response:
NNNNNNNNNHHwH—Au—‘p—‘p—Au—AH
A close look at Plaintiffs’ cited evidence in suppon of
‘
their personal knowledge objection reveals that their obj ection 'Ia'cksmerit.
First, P-laintiffs’citation to Mr. Wagner’s deposition testimony at 16,:13—17z4 regards
AmeriGas Partners, L.P., a nonparty t0 t-hislawsuit. (Plaintiffs’ Index of Evidence, Exhibit C.)
Therefore, citation t0 that testimony is irrelevant to the AmeriGas Defendants’ motion before t_he
Court related to Defendants AmeI-iGas, Inc., AmeriGas Propane, 1110.,and AmeriGas Propane, L.P.
See Cal. Evid. Code § 210.
Second, Plaintiffs’ other citatibns t0 Mr. Wagner’s testimony do not specifically address the
relationship between AmeriGas, Ind. and AmeriGas Propane, Inc. and therefore do not undermine
Mr. Wagner’s pers'onal knowledge as t0 the corporate relationship between these two specific
AmeriGas entities, as stated in paragraph3 of his declaration. Indeed, Plaintiffs never asked MI.
. ‘
-2 -
‘ _
AMERIGAS DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OBJECTIONS TO EVIDENCE IN
SUPPORT OF THE AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT OR, IN
THE ALTERNATIVE, SUMMARY ADJUDICATION
Wagner about the relationship between these two entities at his deposition and nowhere in his
deposition does he testify that he does not know how AmeriGas, Inc. and AmeriGas Propane, Inc.
relate to one another. Plaintiffs have not and cannot show otherwise. Therefore, Plaintiffs’ evidence
isinsufficient to undermine Mr. Wagner’s attestation stated in paragraph 3 of his declaration.
Accordingly, this Court should overrule Plaintiffs’ objection.
\OOOflmUI-meH
PLAINTIFFS’ OBJECTION N0. 2
Material Obiected To: Wagner Decl. at 1:13—1 5 (114): “Amen'Gas Propane, Inc. is the
fonner general partner of AmeriGas Propane, L.P. As the result 0f a recent transaction unrelated t0
O this lawsuit, the current general partner 0f AmeriGas Propane, L.P. isnow non-party, AmeriGas
Delaware
F" Propane GP, LLC, also a separate entity.”
of
Slate
N Grounds for Obiection N0. 2: Lack of personal knowledge (Evid. Code, § 702, subd. (a));
‘he
LLP
in
LN failure to set forthvadmissible evidence in a supporting declaration (Code .Civ. Proc., § 437e, subd.
fnnncd
SMITH
-b
Preview
pa James T. Hultquist (Pro hac vice) HEAEB Email: jhultquist@rcedsmith.com SAN MATEQ QOHNW ‘ Daniel Kirby (Pro hac vice) . ' JAN V 9 2020 Email: dkirby@reedsmith.com Maytak Chin (State Bar N0. 288 1 5-5) Email: mchin@reedsmith.com REED SMITH LL? 101 Second Street, Suite 1800 San Francisco, CA 94105-3659 Telephone: \OOOVONUI-bLMN (415) 543—8700 Facsimile: (415) 391-8269 Attorneys for Defendants E AMERIGAS PROPANE, L.P., AMERIGAS PROPANE, INC, and AMERIGAS, INC. o p—g SUPERIOR COURT OF THE STATE OF CALIFORNIA Ddawaxe :—- -—. of COUNTY OF SAN MATEO Stale N .—n the LLP in BRICEIDA LOPEZ, b.) u—a an individual, JOSE ‘ Case No.: 18CIV01696 formcd SMITH SOLIS, an individual, v—n fb partnership _ . AMERIGAS DEFENDANTS’ RESPONSE REED p—t Plamflffs, To PLAINTIFFS’ OBJECTIONS T0 kl! liability V' EVIDENCE IN SUPPORT OF THE ON I—i AMERIGAS DEFENDANTS’ MOTION limited A PAUL BONIFACIO, an individual; FOR SUMMARY JUDGEMENT 0R, IN fl --¢ MARGARET HYUN, an individual; THE ALTERNATIVE, SUMMARY AMERIGAS PROPANE, INCL, a corpOIation; ADJUDICATION AMERIGAS, INC. a corporation; and DOES H“ 0G ONE thxough ONE— HUNDRED inclusive, Date; January 14, 2020 >—I \O ‘ Time: 9:00 a.m. Defendants- Dept: Law and Motion NO [Filed concurrently with Reply Brief; [\J *—‘ Supplemental Declaration ofMaytak Chin and _ -flA—-~ ——~-- - \ exhibits thereto; Reply to AmeriGas Separate NN 01596 '13P—Acw— ’ inBepi Statement; Response t0 Plaintiffs Separate and Authorities M1emorandum01 Points ""— Statement] 24 l\l\_\!\l\\\\i\l\l_\l\\§\\ \\\\%\\_i\\\_ 25 26 27 28 AMERIGAS DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OBJECTIONS TO EVIDENCE ‘IN SUPPORT OF THE AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Defendants AmeriGas, Inc., AmeriGas Propane, Inc., and. AmeriGas Propane, L.P. (together the “AmeriGas Defendants”) hereby submit the following responses to Plaintiffs" Obj ections to Evidence Submitted by the AmeriGas Defendants in support of their Opposition to the AmeriGas Defendants’ Motion for Summary Judgm'ent, 0r in the Alternative, Summary Adjudication. AMERICAS DEFENDANTS’ RESPONSES TO OBJECTIONS TO EVIDENCE \OOQQONUIAUJNH PLAINTIFFS’ OBJECTION NO. I Material Objected T0: Declaration 0f Christopher Wagner in Support of AmeriGas Defendants’ Motion for Summai'y Judgment or, in the Alternative, Summary Adjudication (“Wagner Decl.”) at 1:12 (‘J3): “AmeriGas, Inc. is the parent company of AmeriGas Propane, Inc.” O Grounds for Objection No. 1: Lack of pers‘onal knowledge (Evid. Code, § 702,’ subd. (a)); failure t0 set forth admissible evidence in a supporting declaration (Code Civ. Proc., § 43 7c, subd. '—‘ ochlawarc State N (d))- me LLP in DJ Explanation: Although the witness claims that the facts set forth in his declaration— formed SMITH -> includinggthose facts relating to the corporate structure and relationships between the AmeriGas partnership REED U! Defendants—are based on his “own personal knowledge,” his deposition testimony 0n August 6, liabiiily limited O\ 2019, just two and a half months before his declaration was executed, makes clear tha‘the actually A fl has no idea how the various AmeriGas entities are related to one another. 00 Specifically, the witness testified that he works for AmeriGas Propane, L.P., and that at the \O time of his deposition, he was the “Director of Compliance and Regulatory Affairs,” a title he has O held since July 1,201 9. (08/06/19 Deposition ofChristopher Wagner (“Wagner Depo.”) at 12:12—- H 22, attached a_sExh. C to Plaintiffs’ Index of Evidence and Evidence in Opposition to the AmeriGas N Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adj udication.) When DJ ‘ asked whether he holds any job titlesor positions with AnleriGas, Inc. (a different AtheriGas entity), A the witness replied: U1 There are multiple affiliations through the AmeriGas trade name, and I’d have to O\ have legal counsel specifically identify those different interactions and how those names relate to one another. Bu’t I believe that all of the AmeriGas companies, Q there is a portion of the company that’s affiliated with personnel, and then there 00 - 1 _ AMERIGAS DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OBJECTIONS TO EVIDENCE IN SUPPORT OF THE AMERIGAS DEFENDANTS’ MO'I ION FOR SUMMARY JUDGEMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION are others that are cross—affiliated through business-type relationships and ‘legal standards. But I’m not directly familiar with what‘all of those are. (1d. at 15:10—22; see also id. at 16213—1724 [witness again explaining that “there are numerous different affiliations 0f the AmeriGas name” and that he is “not directly familiar with their \ooowoxuxgwmr—m association with the organization”].) Additionally, when the witness was asked to describe both his current and prior job duties at AmeriGas Propane, L.P., his responses revealed that he is not currently doing nor has he ever done any work that would expose him t0 first—hand knowledge of the corporate structure and relationships between the various AmeriGas entities.(See Wagner Depo. at 14: 13—1 5:9 [explaining that in his current position, he deals primarily with' federal, state, and local codes and standards, offering Delaware of intexpretations thereof and interacting with regulatory agencies to ensure compliance therewith]; see v Sum: LLP lhc in also id. at 32:16—35:8 and Exhibit 98 thereto [explaining that previously, his role was to ensure that formed SMITH AmeriGas Propane, L.P., has an “effective safety training programfl” so itsemployees can partnership REED “Understand and avoid the risks associated with their jobs”]‘.) liability Against this backdrop, it isquite plain that the matter stated in paragraph 3 of'the witness’s limixcd A declaration isnot based on-his personal knowledge. The statement is, therefore, inadmissible. AmeriGas Defendants’ Response: NNNNNNNNNHHwH—Au—‘p—‘p—Au—AH A close look at Plaintiffs’ cited evidence in suppon of ‘ their personal knowledge objection reveals that their obj ection 'Ia'cksmerit. First, P-laintiffs’citation to Mr. Wagner’s deposition testimony at 16,:13—17z4 regards AmeriGas Partners, L.P., a nonparty t0 t-hislawsuit. (Plaintiffs’ Index of Evidence, Exhibit C.) Therefore, citation t0 that testimony is irrelevant to the AmeriGas Defendants’ motion before t_he Court related to Defendants AmeI-iGas, Inc., AmeriGas Propane, 1110.,and AmeriGas Propane, L.P. See Cal. Evid. Code § 210. Second, Plaintiffs’ other citatibns t0 Mr. Wagner’s testimony do not specifically address the relationship between AmeriGas, Ind. and AmeriGas Propane, Inc. and therefore do not undermine Mr. Wagner’s pers'onal knowledge as t0 the corporate relationship between these two specific AmeriGas entities, as stated in paragraph3 of his declaration. Indeed, Plaintiffs never asked MI. . ‘ -2 - ‘ _ AMERIGAS DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OBJECTIONS TO EVIDENCE IN SUPPORT OF THE AMERIGAS DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Wagner about the relationship between these two entities at his deposition and nowhere in his deposition does he testify that he does not know how AmeriGas, Inc. and AmeriGas Propane, Inc. relate to one another. Plaintiffs have not and cannot show otherwise. Therefore, Plaintiffs’ evidence isinsufficient to undermine Mr. Wagner’s attestation stated in paragraph 3 of his declaration. Accordingly, this Court should overrule Plaintiffs’ objection. \OOOflmUI-meH PLAINTIFFS’ OBJECTION N0. 2 Material Obiected To: Wagner Decl. at 1:13—1 5 (114): “Amen'Gas Propane, Inc. is the fonner general partner of AmeriGas Propane, L.P. As the result 0f a recent transaction unrelated t0 O this lawsuit, the current general partner 0f AmeriGas Propane, L.P. isnow non-party, AmeriGas Delaware F" Propane GP, LLC, also a separate entity.” of Slate N Grounds for Obiection N0. 2: Lack of personal knowledge (Evid. Code, § 702, subd. (a)); ‘he LLP in LN failure to set forthvadmissible evidence in a supporting declaration (Code .Civ. Proc., § 437e, subd. fnnncd SMITH -b