Preview
nM
ED
COUNTY
ALAMEDA
AUG 0 2 2017
CE COURT
*Y BY
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
10
11 LI ZHU LIU, Case No. RG14712640
12 Plaintiffs, PROPOSED STATEMENT OF
DECISION
13 VS.
14 ALFRED BIANCHI AND LOIS
BIANCHI, and DOES 1 through 10,
15 inclusive,
16 Defendants.
17
PREFACE
18
This is the court’s tentative ruling and Proposed Statement of Decision. (Cal.
19
Rule of Ct. (“CRC”) 3.1590(c)(1).) Parties intending to object under CRC
20
3.1590(g) should become familiar with the authorities that describe the limited
21
purposes of objections. (E.g., Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993)
22
20 Cal. App.4" 1372, 1380; Yield Dynamics, Inc. v. TEA Sys. Corp. (2007) 154
23
Cal.App.4" 547, 560; Heaps v. Heaps (2004) 124 Cal.App.4" 286, 292 [‘the main
24
purpose of an objection to a proposed statement of decision is not to reargue the
25
merits, but to bring to the court’s attention inconsistencies between the court’s
ruling and the document that is supposed to embody and explain that ruling.”’].)
PROPOSED STATEMENT OF DECISION
This matter came on regularly for a trial to the court commencing on April
19, 2017. Plaintiff Li Zhu Liu was represented by Aaron Yu, Esq. of Wong &
Associates. Defendant Lois Bianchi appeared in pro per, as Trustees of the
Bianchi Trust dated November 13, 2016. The parties presented evidence to the
court for two days. Later each side filed closing trial briefs according to a schedule
10 agreed to by the parties, and the court took the matter under submission on June
11 22, 2017.
12 The court has considered all of the testimony and exhibits admitted into
13 evidence during the trial, together with all of the papers filed on behalf of the
14 parties, including all written closing arguments filed by counsel, and good cause
15 appearing, HEREBY rules in favor of defendants for the reasons that follow.
16 FACTS PROVEN AT TRIAL AND VIA PRE-TRIAL ORDER
17 DEEMING MATTERS ADMITTED
18 The Court finds the following facts were proven at trial by a preponderance
19 of the evidence, or were already proven by virtue of the matters having been
20 deemed admitted pursuant to this Court’s pre-trial order, filed April 5, 2017.
21 The evidence established that a fire broke out at approximately, 8:00 a.m. on
22 December 29, 2013, originating from defendants’ property located at 4601 Foothill
23 Boulevard in Oakland, and which spread to plaintiff's adjacent property located at
24 1720 and 1722 46" Avenue. (Request for Admission (“RFA”) Nos. 1 & 2.)
25 Defendants further are deemed to have admitted that:
e They were not present at their property on December 29, 2013; (RFA
4)
e They had a duty to maintain the property they owned at 4601 Foothill
Boulevard; (RFA Nos. | & 3)
e They failed to make regular inspections of their property (RFA No. 6);
e They knew that transients were entering into and using their property,
including on December 29, 2013; (RFA Nos. 5 & 9)
e They knew neighbors had complained about transient activities on
their property prior to the December 29, 2013 fire; (RFA 12)
10
e They knew of unspecified dangerous conditions on their property;
1] (RFA No. 9)
12
e They failed to take steps to safeguard and prevent unauthorized access
13 to their property; (RFA No. 10) and
14 e They failed to exercise ordinary care in the management of their
15 property to avoid exposing other persons to an unreasonable risk of
16 harm emanating from defendants’ property; (RFA No. 7)
17
18 Special Accommodation Inspector for the City of Oakland, Gregory Clarke
19 testified that he received a complaint on December 30, 2013, that there had been a
20 fire at defendants’ property. After going to the location, he observed the fire
21 damage from outside the structure, red tagged the property, and mailed out a
22 violation letter to defendants. Inspector Clarke never inspected the inside of the
23 building because itwas too unsafe to enter. He never determined the origin of the
24 fire and never determined what caused the fire. Later on, he re-inspected the
25 location to see if the property had been repaired, and determined that ithad not
been repaired. As of his last inspection, the property remained boarded up, but was
in the same general condition as it had been when he first inspected iton
September 30, 2013.
Ms. Lisa Harder testified that prior to the fire she had managed multiple
properties owned by her grandparents, Helen and Leonard Gallagher, located at
4607, 4609, 4619, 4621, and 4647 Foothill Boulevard. She would visit these
properties to collect rents, to show the properties to prospective renters, and in the
event that problems arose at the rentals.
She first became aware of transient activity at defendants’ property in 2007
10 when she began managing her grandparents’ properties. Transients would occupy
11 defendants’ property and occasionally were believed to have stolen things from her
12 tenants. Ms. Harder never addressed these issues with defendants because she
13 didn’t know who they were. |
14 Shortly before the December 29" fire, tenants complained to her about fires
15 on defendants’ property. Ms. Harder tried to file a complaint online with Oakland
16 authorities about the fires, but she could not find a record of having made a
17 complaint, so she doesn’t know whether she submitted the complaint correctly.
18 She believes the transients were gaining access to defendants’ property by
19 squeezing through an opening made by loosening plywood sheets covering a door
20 on that side, although she never personally witnessed transients gaining access to
21 defendants’ property.
22 On the morning of the fire, one of her tenants called to tell her the place was
23 on fire and that the fire department had been called. When she arrived at the scene,
24 the fire had been put out and water was being sprayed on the buildings. Ms.
25 Harder did not investigate the cause of the fire. Plaintiff's counsel sought to elicit
from the witness multiple-level hearsay statements purportedly made to her by an
unidentified fire captain at the scene relating what other persons, in turn,
supposedly told the fire captain about the cause of the fire. (The Court did not
admit into evidence or consider in reaching this decision any of the multiple-level
hearsay statements contained within plaintiffs exhibits admitted at trial because
insufficient, operative exceptions to the hearsay rule exist to allow consideration of
the hearsay statements for the truth of the matters being asserted.)
Assistant Fire Marshall for the Oakland Fire Department, Maria Sabatini
testified that she had been a fire investigator in December 2013, and responded to
10 the scene of the subject fire on December 29, 2013, after receiving a request from
il the firefighters who put out the fire. She interviewed witnesses at the scene and
12 occupants of the nearby buildings. She filled out some, but not all, portions of the
13 Oakland Fire Department “Incident Report” for this fire, which was admitted into
14 evidence as Exhibit |. She filled out the “Narrative” portion shown on page 8 of
15 the report. When she made these entries in the Narrative, the cause of the fire
16 remained “under investigation.” Even after reviewing her entries in the Narrative
17 on the witness stand, she could not remember speaking with the neighbor identified
18 as “Eric Bogy” in the report. (Mr. Bogy was not called as a witness at trial.)
19 Meanwhile, the unnamed “transient” referred to in the paragraph mentioning her
20 discussion with Eric Bogy has never been identified.
21 Ms. Sabatini couldn’t recall whether she entered the data on page | of the
22 report under the subheading “Fire” which stated, among other things, that the cause
23 of the ignition was “under investigation” and that the heat source was
24 “Undetermined.” Ms. Sabatini testified that she was not able to make a conclusive
25 determination of the heat source that started the fire. She was “not comfortable”
5.
giving an opinion as to where the fire started, and she couldn’t say conclusively
that the fire originated in defendants’ property at 4601 Foothill Boulevard. (Again,
the Court did not admit into evidence or consider in reaching this decision any of
the multiple-level hearsay statements contained within the Narrative entries made
by Ms. Sabatini within the Incident Report because insufficient, operative
exceptions to the hearsay rule exist to allow consideration of these hearsay
statements for the truth of the matters being asserted.)
No further analysis was conducted of the cause of the fire and no expert
testimony was presented at trial on this issue. No admissible (non-multiple
10 hearsay) evidence was presented to establish the ignition source or the actual cause
11 of the fire. Likewise, no admissible (non-hearsay) evidence was presented at trial
12 establishing a nexus between the potential transient trespass onto defendants’
13 property and the actual start or cause of this fire.
14
15 ANALYSIS
16 Plaintiff argues that the fire originated on defendants’ property “when
17 transients started a warming fire that burned out of control.” (Plaintiff's Closing
18 Brief at p. 2.) Plaintiff asserts that her position is “supported by the Fire Incident
19 Report and witness testimony.” (Ibid.) Plaintiff presented ample evidence
20 supporting the conclusion that transients were accessing defendants’ property
21 (despite the structure having previously being boarded up by the City of Oakland)
22 and that the fire originated on defendants’ property. However, plaintiff presented
23 no admissible evidence to establish either the ignition source or the actual cause of
24 the fire, or that transients were involved in its creation or spread. Instead, plaintiff
25 has invited the court, as the trier of fact, to speculate that the fire resulted from
transients having started “a warming fire that burned out of control.” The trial
record lacking any admissible evidence to support such a determination, the court
declines to so speculate.
Speculative evidence and conjecture are not relevant to prove any disputed
fact. “Evidence that is speculative or conjecture is not relevant evidence because
neither has any tendency to prove or disprove any fact in dispute.” (Simons,
California Evidence Manual (2017 Ed.) § 1:4, p. 7, citing California Public
Employees Retirement System v. Moody's Investors Service, Inc. (2014) 226
Cal.App.4" 643, 684, and Evidence Code §210.) Furthermore, our Supreme Court
10 has recognized a trial court’s “gatekeeping function” to exclude evidence if it is
11 based on speculation. (See Sargon Enterprises Inc. v. University of Southern
12 California (2012) 55 Cal.4" 747, 771-772.) Here, plaintiff asks the court to
13 assume that the blaze occurred as a result of a “warming fire” started by transients
14 trespassing on defendants’ premises that somehow “burned out of control,”
15 notwithstanding plaintiff's failure to present any admissible evidence whatsoever
16 at trial establishing such events took place. It is plaintiff's burden of proof to
17 present evidence at trial establishing each element of her claims against
18 defendants. Where, as here, plaintiff has failed to present evidence to support a
19 crucial element like a causative link between transient access to the property and
20 the start of this fire, the court has no choice but to point out the break in the chain
21 of evidence and determine that plaintiff has not met her burden of proof.
22 M1
23
24
25
None of the California authorities cited by plaintiff in her Closing Brief
compel a contrary conclusion.'
Plaintiff cites Reid & Sidell v. Gilmore & Edwards Co., (1955) 134
Cal.App.2d 60, 66 (“Reid & Sidell’) for the general proposition that “If the owner
of the premises allows them to remain in such a condition as to constitute a danger
to other property in case of fire, this negligence will make him liable for damages
done to such other property by accidental fire starting on his premises, although he
has no connection with its origin.” There, the complaint contained two causes of
action for each plaintiff. One was based on general negligence arising from the
10 defendant having stored large quantities of paint thinner in the basement of its
il commercial premises. The other was based upon a section of the Fire Code of the
12 City and County of San Francisco which prohibited storing, without first obtaining
13 a City permit, “in excess of five (5) gallons” . . .“of petroleum or any hydrocarbon
14 liquid that will flash or emit an inflammable vapor below a temperature of one
15 hundred and ten (110) degrees Fahrenheit.” (Id. at p. 63.) Both counts alleged that
16 because of the presence of the paint thinner, a fire spread from the portion of the
17 building occupied by Gilmore to that occupied by Reid, causing the property losses
18 of Reid and its insurer.
19 A jury later rendered a verdict for the plaintiffs, and the defendant Gilmore
20 appealed from judgment upon that verdict. The appellate court affirmed the jury’s
21 verdict after determining that substantial evidence had been presented to support
22
23 'The court has considered the out-of-state authority cited by plaintiff,Chicago, Milwaukee, St. Paul &
Pacific Railroad Company v. Poarch (“Chicago”) (1961) 292 F.2d 449, but finds itdistinguishable on its
24 facts and finds itsreasoning unpersuasive. Neither the Chicago case, nor the case on which itrelies --
Prince v. Chehalis Sav. & Loan Ass’n (1936) 186 Wash. 372 has ever been cited in a California appellate
25
decision and thiscourt declines to follow it. In the present case, plaintiff Liu has the obligation to present
evidence establishing that allowing transient access todefendants’ building was a substantial factor in
causing the fire that occurred on December 29, 2013. For the reasons stated infra,the court finds that
plaintiff failed todo so.
the verdict. Ud. at p. 63-64.) The court noted that evidence presented at trial
permitted the conclusion that “750 to 1,000 gallons of highly inflammable paint
thinner was stored in the basement on the day of the fire.” (/d. at p. 64.) Firemen
saw a number of 50-gallon drums ruptured and leaking liquid. Six to eight of the
large drums, all broken, were removed by the fire department. Evidence had also
been presented showing “[t]he fire was brought under control and was nearly
extinguished at least three times, but on each occasion was reignited by vapors of
liquid on the floor. Each time the fire again ignited, “just in split seconds the entire
floor of the basement was a mass of flame.” (/bid.) There was much testimony of
10 firemen that the burning of this volatile liquid contributed strongly to the spread of
11 the fire. In addition, the presence of this inflammable substance, and the danger of
12 explosion of the liquid confined in the drums, made the basement too hazardous
13 for the continued presence of firemen, thus minimizing the possibility of
14 extinguishing the fire. (/bid.) Thus, the appellate court determined the evidence of
15 the causation element had been ample to warrant the jury’s conclusion that the
16 large quantity of paint thinner kept in the basement by Gilmore “substantially
17 increased the difficulty of fighting the fire; caused it to flare up again and again
18 after being under control; and caused it to spread. Clearly there was evidence to
19 warrant the inference that the presence of the thinner directly and proximately
20 contributed to the destruction of Reid’s goods on the second floor.” (/d. at pp. 64-
21 65.)
22 In contrast, in the present case, plaintiff Liu presented no non-hearsay
23 evidence of how the fire started or that transients were responsible for starting it.
24 After listening carefully to the non-hearsay testimony that was presented and after
25 observing the witnesses give their testimony, the court finds plaintiff presented no
substantial or persuasive evidence to establish a causal link between potential
transient access to the building and the actual start or cause of this fire.
Plaintiff also cites Levy-Zentner Co. v. Southern Pac. Transportation Co.
(1977) 74 Cal.App.3d 762, 781, for the proposition that a defendant may be held
liable “if his negligence is a substantial factor in causing an injury, and he is not
relieved of liability of the intervening act of a third person if such act was
reasonably foreseeable at the time of his negligent conduct.” In Levy-Zeniner, the
Southern Pacific railroad company appealed from adverse judgments entered
following jury verdicts finding the defendant responsible for allowing itinerants to
10 start a fire underneath one of its warehouses. There the plaintiff had presented
11 testimony from multiple experts establishing that the fire had started from a single
12 ignition point underneath the warehouse, probably by itinerant activity, by process
13 of elimination. (/d. at p. 775.) The experts presented testimony eliminating other
14 potential causes such as spontaneous combustion and arson. (/bid.) In addition,
15 plaintiff presented evidence of (and Southern Pacific acknowledged) prior transient
16 activity on its premises that had led to other serious problems including a 1969 fire
17 that destroyed another of its warehouses. (/d. at p. 776.) Having heard all the
18 evidence, the jury concluded defendant was responsible under a theory of res ipsa
19 loquitur based on plaintiff having presented affirmative evidence that the fire
20 started from a single source, after having ruled out the likelihood of other potential
21 causes of the fire other than transients on the premises. (/bid.) The Court of
22 Appeal affirmed, concluding that substantial evidence existed in the record to
23 sustain the jury’s verdicts against Southern Pacific. ([bid.)
24 In contrast, here no evidence (expert or otherwise) was presented
25 establishing the condition of the interior of defendants’ building, or how the fire
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started, or ruling out other potential causes of the fire. Plaintiff's case regarding
the nexus between transient access to the structure and the starting of this fire is
based entirely on conjecture and speculation and is unsupported by any credible,
admissible evidence. Having failed to present such evidence, the court concludes
that plaintiff has not met her burden of proof to establish that transient access to
defendants’ premises constituted a substantial factor in the cause of this fire.
The Court hereby determines that plaintiff has not met her burden of proof
and therefore shall take nothing from her complaint.
10 Date: fa [ac LZ Faw. 2B L Anh
Paul D. Herbert
11
Judge of the Superior Court
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Superior Court of California, County of Alameda
Department 20, Administration Building
Case Number: RG14712640
Case Name: Li Zhu Liu vs. Alfred Bianchi and Lois Bianchi
RE: PROPOSED STATEMENT OF DECISION
DECLARATION OF SERVICE BY MAIL
| certify that |am not a party to this cause and that a true and correct copy of the
foregoing document was mailed first class, postage prepaid, in a sealed
envelope, addressed as shown at the bottom of this document, and that the
mailing of the foregoing and execution of this certificate occurred at 1221 Oak
Street, Oakland, California.
Executed on August 2, 2017
Executive Officer/Clerk of the Superior Court
By Reshma Mishra
Deputy Clerk
Aaron Wu
Wong & Associates
413 Third Street
Oakland, CA 94607
Alfred Bianchi
Lois Bianchi as Trustee of the
Bianchi Trust
2403 Bridle Path Drive,
Gilroy, CA 95020
Preview
nM ED COUNTY ALAMEDA AUG 0 2 2017 CE COURT *Y BY SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 10 11 LI ZHU LIU, Case No. RG14712640 12 Plaintiffs, PROPOSED STATEMENT OF DECISION 13 VS. 14 ALFRED BIANCHI AND LOIS BIANCHI, and DOES 1 through 10, 15 inclusive, 16 Defendants. 17 PREFACE 18 This is the court’s tentative ruling and Proposed Statement of Decision. (Cal. 19 Rule of Ct. (“CRC”) 3.1590(c)(1).) Parties intending to object under CRC 20 3.1590(g) should become familiar with the authorities that describe the limited 21 purposes of objections. (E.g., Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 22 20 Cal. App.4" 1372, 1380; Yield Dynamics, Inc. v. TEA Sys. Corp. (2007) 154 23 Cal.App.4" 547, 560; Heaps v. Heaps (2004) 124 Cal.App.4" 286, 292 [‘the main 24 purpose of an objection to a proposed statement of decision is not to reargue the 25 merits, but to bring to the court’s attention inconsistencies between the court’s ruling and the document that is supposed to embody and explain that ruling.”’].) PROPOSED STATEMENT OF DECISION This matter came on regularly for a trial to the court commencing on April 19, 2017. Plaintiff Li Zhu Liu was represented by Aaron Yu, Esq. of Wong & Associates. Defendant Lois Bianchi appeared in pro per, as Trustees of the Bianchi Trust dated November 13, 2016. The parties presented evidence to the court for two days. Later each side filed closing trial briefs according to a schedule 10 agreed to by the parties, and the court took the matter under submission on June 11 22, 2017. 12 The court has considered all of the testimony and exhibits admitted into 13 evidence during the trial, together with all of the papers filed on behalf of the 14 parties, including all written closing arguments filed by counsel, and good cause 15 appearing, HEREBY rules in favor of defendants for the reasons that follow. 16 FACTS PROVEN AT TRIAL AND VIA PRE-TRIAL ORDER 17 DEEMING MATTERS ADMITTED 18 The Court finds the following facts were proven at trial by a preponderance 19 of the evidence, or were already proven by virtue of the matters having been 20 deemed admitted pursuant to this Court’s pre-trial order, filed April 5, 2017. 21 The evidence established that a fire broke out at approximately, 8:00 a.m. on 22 December 29, 2013, originating from defendants’ property located at 4601 Foothill 23 Boulevard in Oakland, and which spread to plaintiff's adjacent property located at 24 1720 and 1722 46" Avenue. (Request for Admission (“RFA”) Nos. 1 & 2.) 25 Defendants further are deemed to have admitted that: e They were not present at their property on December 29, 2013; (RFA 4) e They had a duty to maintain the property they owned at 4601 Foothill Boulevard; (RFA Nos. | & 3) e They failed to make regular inspections of their property (RFA No. 6); e They knew that transients were entering into and using their property, including on December 29, 2013; (RFA Nos. 5 & 9) e They knew neighbors had complained about transient activities on their property prior to the December 29, 2013 fire; (RFA 12) 10 e They knew of unspecified dangerous conditions on their property; 1] (RFA No. 9) 12 e They failed to take steps to safeguard and prevent unauthorized access 13 to their property; (RFA No. 10) and 14 e They failed to exercise ordinary care in the management of their 15 property to avoid exposing other persons to an unreasonable risk of 16 harm emanating from defendants’ property; (RFA No. 7) 17 18 Special Accommodation Inspector for the City of Oakland, Gregory Clarke 19 testified that he received a complaint on December 30, 2013, that there had been a 20 fire at defendants’ property. After going to the location, he observed the fire 21 damage from outside the structure, red tagged the property, and mailed out a 22 violation letter to defendants. Inspector Clarke never inspected the inside of the 23 building because itwas too unsafe to enter. He never determined the origin of the 24 fire and never determined what caused the fire. Later on, he re-inspected the 25 location to see if the property had been repaired, and determined that ithad not been repaired. As of his last inspection, the property remained boarded up, but was in the same general condition as it had been when he first inspected iton September 30, 2013. Ms. Lisa Harder testified that prior to the fire she had managed multiple properties owned by her grandparents, Helen and Leonard Gallagher, located at 4607, 4609, 4619, 4621, and 4647 Foothill Boulevard. She would visit these properties to collect rents, to show the properties to prospective renters, and in the event that problems arose at the rentals. She first became aware of transient activity at defendants’ property in 2007 10 when she began managing her grandparents’ properties. Transients would occupy 11 defendants’ property and occasionally were believed to have stolen things from her 12 tenants. Ms. Harder never addressed these issues with defendants because she 13 didn’t know who they were. | 14 Shortly before the December 29" fire, tenants complained to her about fires 15 on defendants’ property. Ms. Harder tried to file a complaint online with Oakland 16 authorities about the fires, but she could not find a record of having made a 17 complaint, so she doesn’t know whether she submitted the complaint correctly. 18 She believes the transients were gaining access to defendants’ property by 19 squeezing through an opening made by loosening plywood sheets covering a door 20 on that side, although she never personally witnessed transients gaining access to 21 defendants’ property. 22 On the morning of the fire, one of her tenants called to tell her the place was 23 on fire and that the fire department had been called. When she arrived at the scene, 24 the fire had been put out and water was being sprayed on the buildings. Ms. 25 Harder did not investigate the cause of the fire. Plaintiff's counsel sought to elicit from the witness multiple-level hearsay statements purportedly made to her by an unidentified fire captain at the scene relating what other persons, in turn, supposedly told the fire captain about the cause of the fire. (The Court did not admit into evidence or consider in reaching this decision any of the multiple-level hearsay statements contained within plaintiffs exhibits admitted at trial because insufficient, operative exceptions to the hearsay rule exist to allow consideration of the hearsay statements for the truth of the matters being asserted.) Assistant Fire Marshall for the Oakland Fire Department, Maria Sabatini testified that she had been a fire investigator in December 2013, and responded to 10 the scene of the subject fire on December 29, 2013, after receiving a request from il the firefighters who put out the fire. She interviewed witnesses at the scene and 12 occupants of the nearby buildings. She filled out some, but not all, portions of the 13 Oakland Fire Department “Incident Report” for this fire, which was admitted into 14 evidence as Exhibit |. She filled out the “Narrative” portion shown on page 8 of 15 the report. When she made these entries in the Narrative, the cause of the fire 16 remained “under investigation.” Even after reviewing her entries in the Narrative 17 on the witness stand, she could not remember speaking with the neighbor identified 18 as “Eric Bogy” in the report. (Mr. Bogy was not called as a witness at trial.) 19 Meanwhile, the unnamed “transient” referred to in the paragraph mentioning her 20 discussion with Eric Bogy has never been identified. 21 Ms. Sabatini couldn’t recall whether she entered the data on page | of the 22 report under the subheading “Fire” which stated, among other things, that the cause 23 of the ignition was “under investigation” and that the heat source was 24 “Undetermined.” Ms. Sabatini testified that she was not able to make a conclusive 25 determination of the heat source that started the fire. She was “not comfortable” 5. giving an opinion as to where the fire started, and she couldn’t say conclusively that the fire originated in defendants’ property at 4601 Foothill Boulevard. (Again, the Court did not admit into evidence or consider in reaching this decision any of the multiple-level hearsay statements contained within the Narrative entries made by Ms. Sabatini within the Incident Report because insufficient, operative exceptions to the hearsay rule exist to allow consideration of these hearsay statements for the truth of the matters being asserted.) No further analysis was conducted of the cause of the fire and no expert testimony was presented at trial on this issue. No admissible (non-multiple 10 hearsay) evidence was presented to establish the ignition source or the actual cause 11 of the fire. Likewise, no admissible (non-hearsay) evidence was presented at trial 12 establishing a nexus between the potential transient trespass onto defendants’ 13 property and the actual start or cause of this fire. 14 15 ANALYSIS 16 Plaintiff argues that the fire originated on defendants’ property “when 17 transients started a warming fire that burned out of control.” (Plaintiff's Closing 18 Brief at p. 2.) Plaintiff asserts that her position is “supported by the Fire Incident 19 Report and witness testimony.” (Ibid.) Plaintiff presented ample evidence 20 supporting the conclusion that transients were accessing defendants’ property 21 (despite the structure having previously being boarded up by the City of Oakland) 22 and that the fire originated on defendants’ property. However, plaintiff presented 23 no admissible evidence to establish either the ignition source or the actual cause of 24 the fire, or that transients were involved in its creation or spread. Instead, plaintiff 25 has invited the court, as the trier of fact, to speculate that the fire resulted from transients having started “a warming fire that burned out of control.” The trial record lacking any admissible evidence to support such a determination, the court declines to so speculate. Speculative evidence and conjecture are not relevant to prove any disputed fact. “Evidence that is speculative or conjecture is not relevant evidence because neither has any tendency to prove or disprove any fact in dispute.” (Simons, California Evidence Manual (2017 Ed.) § 1:4, p. 7, citing California Public Employees Retirement System v. Moody's Investors Service, Inc. (2014) 226 Cal.App.4" 643, 684, and Evidence Code §210.) Furthermore, our Supreme Court 10 has recognized a trial court’s “gatekeeping function” to exclude evidence if it is 11 based on speculation. (See Sargon Enterprises Inc. v. University of Southern 12 California (2012) 55 Cal.4" 747, 771-772.) Here, plaintiff asks the court to 13 assume that the blaze occurred as a result of a “warming fire” started by transients 14 trespassing on defendants’ premises that somehow “burned out of control,” 15 notwithstanding plaintiff's failure to present any admissible evidence whatsoever 16 at trial establishing such events took place. It is plaintiff's burden of proof to 17 present evidence at trial establishing each element of her claims against 18 defendants. Where, as here, plaintiff has failed to present evidence to support a 19 crucial element like a causative link between transient access to the property and 20 the start of this fire, the court has no choice but to point out the break in the chain 21 of evidence and determine that plaintiff has not met her burden of proof. 22 M1 23 24 25 None of the California authorities cited by plaintiff in her Closing Brief compel a contrary conclusion.' Plaintiff cites Reid & Sidell v. Gilmore & Edwards Co., (1955) 134 Cal.App.2d 60, 66 (“Reid & Sidell’) for the general proposition that “If the owner of the premises allows them to remain in such a condition as to constitute a danger to other property in case of fire, this negligence will make him liable for damages done to such other property by accidental fire starting on his premises, although he has no connection with its origin.” There, the complaint contained two causes of action for each plaintiff. One was based on general negligence arising from the 10 defendant having stored large quantities of paint thinner in the basement of its il commercial premises. The other was based upon a section of the Fire Code of the 12 City and County of San Francisco which prohibited storing, without first obtaining 13 a City permit, “in excess of five (5) gallons” . . .“of petroleum or any hydrocarbon 14 liquid that will flash or emit an inflammable vapor below a temperature of one 15 hundred and ten (110) degrees Fahrenheit.” (Id. at p. 63.) Both counts alleged that 16 because of the presence of the paint thinner, a fire spread from the portion of the 17 building occupied by Gilmore to that occupied by Reid, causing the property losses 18 of Reid and its insurer. 19 A jury later rendered a verdict for the plaintiffs, and the defendant Gilmore 20 appealed from judgment upon that verdict. The appellate court affirmed the jury’s 21 verdict after determining that substantial evidence had been presented to support 22 23 'The court has considered the out-of-state authority cited by plaintiff,Chicago, Milwaukee, St. Paul & Pacific Railroad Company v. Poarch (“Chicago”) (1961) 292 F.2d 449, but finds itdistinguishable on its 24 facts and finds itsreasoning unpersuasive. Neither the Chicago case, nor the case on which itrelies -- Prince v. Chehalis Sav. & Loan Ass’n (1936) 186 Wash. 372 has ever been cited in a California appellate 25 decision and thiscourt declines to follow it. In the present case, plaintiff Liu has the obligation to present evidence establishing that allowing transient access todefendants’ building was a substantial factor in causing the fire that occurred on December 29, 2013. For the reasons stated infra,the court finds that plaintiff failed todo so. the verdict. Ud. at p. 63-64.) The court noted that evidence presented at trial permitted the conclusion that “750 to 1,000 gallons of highly inflammable paint thinner was stored in the basement on the day of the fire.” (/d. at p. 64.) Firemen saw a number of 50-gallon drums ruptured and leaking liquid. Six to eight of the large drums, all broken, were removed by the fire department. Evidence had also been presented showing “[t]he fire was brought under control and was nearly extinguished at least three times, but on each occasion was reignited by vapors of liquid on the floor. Each time the fire again ignited, “just in split seconds the entire floor of the basement was a mass of flame.” (/bid.) There was much testimony of 10 firemen that the burning of this volatile liquid contributed strongly to the spread of 11 the fire. In addition, the presence of this inflammable substance, and the danger of 12 explosion of the liquid confined in the drums, made the basement too hazardous 13 for the continued presence of firemen, thus minimizing the possibility of 14 extinguishing the fire. (/bid.) Thus, the appellate court determined the evidence of 15 the causation element had been ample to warrant the jury’s conclusion that the 16 large quantity of paint thinner kept in the basement by Gilmore “substantially 17 increased the difficulty of fighting the fire; caused it to flare up again and again 18 after being under control; and caused it to spread. Clearly there was evidence to 19 warrant the inference that the presence of the thinner directly and proximately 20 contributed to the destruction of Reid’s goods on the second floor.” (/d. at pp. 64- 21 65.) 22 In contrast, in the present case, plaintiff Liu presented no non-hearsay 23 evidence of how the fire started or that transients were responsible for starting it. 24 After listening carefully to the non-hearsay testimony that was presented and after 25 observing the witnesses give their testimony, the court finds plaintiff presented no substantial or persuasive evidence to establish a causal link between potential transient access to the building and the actual start or cause of this fire. Plaintiff also cites Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 781, for the proposition that a defendant may be held liable “if his negligence is a substantial factor in causing an injury, and he is not relieved of liability of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct.” In Levy-Zeniner, the Southern Pacific railroad company appealed from adverse judgments entered following jury verdicts finding the defendant responsible for allowing itinerants to 10 start a fire underneath one of its warehouses. There the plaintiff had presented 11 testimony from multiple experts establishing that the fire had started from a single 12 ignition point underneath the warehouse, probably by itinerant activity, by process 13 of elimination. (/d. at p. 775.) The experts presented testimony eliminating other 14 potential causes such as spontaneous combustion and arson. (/bid.) In addition, 15 plaintiff presented evidence of (and Southern Pacific acknowledged) prior transient 16 activity on its premises that had led to other serious problems including a 1969 fire 17 that destroyed another of its warehouses. (/d. at p. 776.) Having heard all the 18 evidence, the jury concluded defendant was responsible under a theory of res ipsa 19 loquitur based on plaintiff having presented affirmative evidence that the fire 20 started from a single source, after having ruled out the likelihood of other potential 21 causes of the fire other than transients on the premises. (/bid.) The Court of 22 Appeal affirmed, concluding that substantial evidence existed in the record to 23 sustain the jury’s verdicts against Southern Pacific. ([bid.) 24 In contrast, here no evidence (expert or otherwise) was presented 25 establishing the condition of the interior of defendants’ building, or how the fire -10- started, or ruling out other potential causes of the fire. Plaintiff's case regarding the nexus between transient access to the structure and the starting of this fire is based entirely on conjecture and speculation and is unsupported by any credible, admissible evidence. Having failed to present such evidence, the court concludes that plaintiff has not met her burden of proof to establish that transient access to defendants’ premises constituted a substantial factor in the cause of this fire. The Court hereby determines that plaintiff has not met her burden of proof and therefore shall take nothing from her complaint. 10 Date: fa [ac LZ Faw. 2B L Anh Paul D. Herbert 11 Judge of the Superior Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -11- Superior Court of California, County of Alameda Department 20, Administration Building Case Number: RG14712640 Case Name: Li Zhu Liu vs. Alfred Bianchi and Lois Bianchi RE: PROPOSED STATEMENT OF DECISION DECLARATION OF SERVICE BY MAIL | certify that |am not a party to this cause and that a true and correct copy of the foregoing document was mailed first class, postage prepaid, in a sealed envelope, addressed as shown at the bottom of this document, and that the mailing of the foregoing and execution of this certificate occurred at 1221 Oak Street, Oakland, California. Executed on August 2, 2017 Executive Officer/Clerk of the Superior Court By Reshma Mishra Deputy Clerk Aaron Wu Wong & Associates 413 Third Street Oakland, CA 94607 Alfred Bianchi Lois Bianchi as Trustee of the Bianchi Trust 2403 Bridle Path Drive, Gilroy, CA 95020