1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 MONTEZUMA HARBOR, LLC, No. 2:19-cv-00831-JAM-KJN 9 Plaintiff, 10 v. ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANT’S

11 UNITED STATES OF AMERICA, MOTION FOR PARTIAL SUMMARY

JUDGMENT

12 Defendant. 13 14 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND1 15 This case involves property damage resulting from the 16 October 2018, Branscombe fire. Compl. ¶ 2, ECF No. 1. The fire 17 originated on the Department of United States Air Force’s (“USAF” 18 or “Defendant”) Travis Air Force Base, on October 7, 2018. Id. 19 ¶ 3. The fire moved off base, burning Montezuma Harbor LCC’s 20 (“Plaintiff”) property at 3150 Grizzly Island Road in Suisan 21 City, California. Id. ¶¶ 1-3; Def.’s Mot. for Summ. J. (“Mot.”) 22 at 2, ECF No. 27. 23 Plaintiff filed this action against the United States 24 pursuant to the Federal Torts Claim Act for: (1) prima facie 25 negligence under California Public Resource Code § 4435; 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for April 6, 2021. 1 (2) common law negligence; (3) negligence under California Health 2 and Safety Code § 13007; (4) negligence under California Health 3 and Safety Code § 13002; and (5) trespass. See generally Compl. 4 Defendant now moves for partial summary judgment on Plaintiff’s 5 negligence claims.2 See Mot. Plaintiff opposed this motion. 6 Opp’n, ECF No. 32. Defendant replied. Reply, ECF No. 35. For 7 the reasons set forth below the Court GRANTS IN PART and DENIES 8 IN PART Defendant’s Motion for Partial Summary Judgment. 9 II. OPINION 10 A. Evidentiary Objections 11 In opposition to Defendant’s Motion, Plaintiff objected to 12 Defendant’s Statement of Undisputed Facts, No. 8 which reads: 13 “[t]hough Perimeter Road’s shoulders were designated BASH, they 14 were maintained by Pride Industries in accordance with the semi- 15 improved grounds standard (4 to 10 inches).” Plaintiff objects 16 on the basis that this is based on speculation, lacks personal 17 knowledge, lacks foundation, and is not supported by the 18 evidence. Pl.’s Objs., ECF No. 32-3. Specifically, Plaintiff 19 contends that the evidence presented only indicates how the BASH 20 areas were supposed to be maintained but there is no evidence to 21 support the conclusion that the grounds were maintained in 22 accordance with those standards. Id. This objection is 23 OVERRULED. Defendant’s evidence of the maintenance standards 24 and schedules supports their claim that area was maintained in 25

26 2 As Plaintiff points out, Defendant does not address the trespass claim in their Motion at all. See Mot. They cannot 27 remedy this by doing so in reply. Accordingly, the Court considers Defendant’s Motion to be one for Partial Summary 28 Judgment. 1 accordance with those standards. 2 B. Legal Standard 3 A court must grant a party’s motion for summary judgment 4 “if the movant shows that there is no genuine dispute as to any 5 material fact and the movant is entitled to a judgment as a 6 matter of law.” Fed. R. Civ. P. 56(a). The movant bears the 7 initial burden of “informing the district court of the basis for 8 its motion, and identifying [the documents] which it believes 9 demonstrate the absence of a genuine issue of material fact.” 10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is 11 material if it “might affect the outcome of the suit under the 12 governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 13 248 (1986). Once the movant makes this initial showing, the 14 burden rests upon the nonmoving party to “set forth specific 15 facts showing that there is a genuine issue for trial.” Id. at 16 250. An issue of fact is genuine if “the evidence is such that 17 a reasonable jury could return a verdict for the nonmoving 18 party.” Id. at 248. 19 C. Analysis 20 As a sovereign, the United States “is immune from suits 21 save as it consents to be sued.” Lehman v. Nakshian, 453 U.S. 22 156, 160 (1981) (internal quotation marks and citation omitted). 23 “The Federal Torts Claims Act is a limited waiver of sovereign 24 immunity, making the Federal Government liable to the same 25 extent as a private party for certain torts of federal employees 26 acting within the scope of their employment.” United States v. 27 Orleans, 425 U.S. 807, 813 (1976). The law of the state where 28 the negligence occurred governs the scope of the United States’ 1 liability. 28 U.S.C. § 1346(b)(1). Because the alleged 2 negligence occurred in California, California law governs. 3 1. Prima Facie Negligence 4 Under California law the elements of a cause of action for 5 negligence are: (1) a legal duty to use care; (2) a breach of 6 such legal duty; and (3) that the breach proximately caused 7 plaintiff’s injury. Ladd v. Cty. of San Mateo, 12 Cal.4th 913, 8 917 (1996). Under California Public Resource Code § 4435 “[i]f 9 any fire originates from the operation or use of any engine, 10 machine, barbecue, incinerator, railroad rolling stock, chimney, 11 or any other device which may kindle a fire, the occurrence of 12 the fire is prima facie evidence of negligence in the 13 maintenance, operation, or use of such engine, machine, 14 barbecue, incinerator, railroad rolling stock, chimney, or other 15 device.” Cal. Pub. Res. Code § 4435. 16 Plaintiff’s first theory of negligence is one for prima 17 facie negligence under California Public Resource Code § 4435. 18 Both parties agree that the most probable cause of the fire was 19 hot metal fragments of a catalytic converter from a vehicle 20 exhaust system. Pl.’s Resp. to Def.’s Statement of Undisputed 21 Facts (“Def.’s SUF”) No. 1, ECF No. 32. The parties dispute, 22 however, whether it was an Air Force or privately owned vehicle 23 that caused the fire. Def.’s SUF No. 2. The government argues 24 that Plaintiff has not put forth sufficient evidence to create a 25 genuine issue as to whether the vehicle was owned and operated 26 by the government. See Mot. at 5; Reply at 2-3. 27 The Court disagrees. Plaintiff points to a deposition by 28 John Miller in which he states that video surveillance of an 1 area near the fire shows a government vehicle passing through. 2 Def.’s SUF No. 2. He identified it was a government vehicle by 3 comparing the images in the video with that of photographs taken 4 of Air Force police vehicles. Id. While Plaintiff’s expert may 5 not be able to testify on the issue, Defendant doesn’t address 6 why the jury could not ascertain for themselves if the vehicle 7 in the video matched the photographs of the government vehicles. 8 Viewed in the light most favorable to Plaintiff, a reasonable 9 jury could find that it was more likely than not a government 10 vehicle that caused the fire, especially given it occurred on a 11 government base. See Anderson v. Liberty Lobby, Inc., 477 U.S. 12 242, 248 (1986); Scarborough v. Urgo, 216 P. 584, 352 (Cal. 13 1923) (level of proof in negligence action is preponderance of 14 evidence). 15 Defendant also argues that even if Plaintiff could show the 16 vehicle was owned and operated by the government, Plaintiff has 17 introduced no evidence demonstrating that the emitted fragments 18 were the result of the Air Force’s negligence. Mot. at 5. But 19 under California Public Resource Code § 4435, Plaintiff does not 20 have to show negligence. Rather “where a fire originates from 21 the use of a covered device, negligence is assumed from the very 22 fact that the fire started. It is not plaintiff’s 23 responsibility to [prove] negligence led to the origination of 24 the fire.” United States v. Sierra Pac. Indus., 879 F.Supp.2d 25 1096, 1110 (E.D. Cal. 2012). Rather if Plaintiff is able to 26 demonstrate it was a government vehicle “[i]t will be 27 defendants’ burden at trial to present sufficient evidence that 28 the [vehicle] was not negligently maintained, operated, or 1 used.” Id. at 1111. Accordingly, Defendant’s Motion for 2 Summary Judgment on Plaintiff’s prima facie negligence claim, 3 count one, is DENIED. Because Plaintiff may be able to prove 4 negligence under this theory Defendant’s Motion for Summary 5 Judgment on claims three and four is also DENIED. 6 But Plaintiff also asserts a second cause of action for 7 negligence under a common law duty to maintain the vehicles on 8 the Base. Compl. ¶¶ 19-22. As Defendant points out, Plaintiff 9 offers no evidence to suggest that any government employee was 10 negligent in their maintenance of the car. Mot. at 4-5 (citing 11 Boesch Decl. Ex O (Miller Depo, at 12:4-19) (“Q. So here you are 12 offering the opinion that the Air Force negligently caused the 13 Branscombe Fire by inadequately maintaining a vehicle? A. I 14 don’t have information whether they maintained them or not, so I 15 couldn’t say.”). Unlike the prima facie claim, Plaintiff must 16 prove Defendant breached the duty of care. Plaintiff fails to 17 address this in its opposition. See Opp’n at 5-6. Thus, 18 Defendant’s Motion for Summary Judgment on the common law 19 negligence claim, count two, is GRANTED. 20 2. Other Theories of Negligence 21 Defendant also argues summary judgment is warranted 22 notwithstanding Plaintiff’s two other theories of negligence: 23 (1) negligence in maintaining the weeds and grass and 24 (2) negligent firefighting tactics and use of equipment. Mot. 25 at 5-10. Defendant argues that Plaintiff has presented 26 insufficient evidence to support these theories as Plaintiff’s 27 expert opinion, the only supporting evidence, is unreliable and 28 therefore inadmissible. Id. The Court agrees. 1 Rule 702 of the Federal Rules of Evidence states that “[a] 2 witness who is qualified as an expert by knowledge, skill, 3 experience, training, or education may testify in the form of an 4 opinion or otherwise if”: (a) the expert’s scientific, 5 technical, or other specialized knowledge will help the trier of 6 fact to understand the evidence or to determine a fact in issue; 7 (b) the testimony is based on sufficient facts or data; (c) the 8 testimony is the product of reliable principles and methods; and 9 (d) the expert has reliably applied the principles and methods 10 to the facts of the case. Fed. R. Evid. 702. For expert 11 testimony to be admissible it must be both relevant and 12 reliable. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 13 (1999). Thus, “the trial judge must determine whether the 14 testimony has ‘a reliable basis in the knowledge and experience 15 of [the relevant] discipline.’” Id. at 149 (quoting Daubert v. 16 Merrell Dow Pharm., Inc., 509 U.S. 597, 592 (1993)). 17 The only evidence supporting Plaintiff’s claim that 18 Defendant was negligent in maintaining the areas containing 19 weeds and grass is the opinion of their expert, John Miller. 20 See Pl’s. Statement of Undisputed Facts (“Pl.’s SUF”) No. 2, ECF 21 No. 32. In his deposition, Miller, claimed that the vegetation 22 along the roadway was required to be mowed down to two inches. 23 This opinion was purportedly based on a set of 2020 weed 24 abatement guidelines by the Vallejo Fire Department and the 25 National Fire Protection Association Code Section 17.3.5.3. 26 Boesch Decl., ECF No. 27, Ex. B (Miller Report); Ex. O (Miller 27 Depo. at 16:3-18:24). But neither supports his claim. The 28 Vallejo guidelines recommend a defensible space mowed to two 1 inches from the ground around structures, but, by contrast, its 2 recommendation for roadway shoulders is only to clear vegetation 3 for ten feet on each side of the road. Boesch Decl. Ex. P. 4 Similarly, NFPA only says that areas within ten feet of roadways 5 should be cleared of combustible vegetation, without specifying 6 the height to which it must be mowed. Boesch Decl. Ex. Q. 7 Further, Miller failed to consider the environmental 8 restrictions that applied to biologically sensitive areas on the 9 base. Boesch Decl. Ex O (Miller Depo. at 61:20-62:20). 10 Plaintiff does not address this in its opposition merely 11 stating that “a genuine dispute of material fact exists as to 12 whether the NFPA standards were violated.” Opp. at 4. But as 13 mentioned there is no genuine dispute because the NFPA standards 14 do not say anything about the required height of the vegetation. 15 Plaintiff makes no attempt to further justify the basis for 16 Miller’s opinion. Accordingly, it is nothing more than a “mere 17 subjective belief[] or unsupported speculation.” Claar v. 18 Burlington N. R. Co., 29 F.3d 499, 501 (9th Cir. 1994). 19 Plaintiff’s theories of negligence based on improper 20 firefighter tactics and equipment are also only supported by 21 Miller’s opinions. Pl.’s SUF No. 4. Miller formed his opinion 22 after watching a video of the response to the fire provided by 23 Travis Air Force Base, which he admitted was difficult to make 24 out. Boesch Decl. Exh. O (Miller Depo. at 28:22-25). As 25 Defendant points out, Miller failed to consider all the relevant 26 information, such as the report specifying the equipment used or 27 the firefighters’ depositions detailing their tactics. Id. 28 (Miller Depo. at 45:15-17; 49:24-51:19; 52:13-53:3). Thus, his 1 opinion was not based on sufficient facts as required by 702(b). 2 Without knowledge of the actual tactics and equipment used, 3 | Miller cannot form a reliable opinion about them. 4 For these reasons the Court GRANTS Defendant’s Motion for 5 Summary Judgment on these remaining theories of negligence. 6 IIl. ORDER 7 For the reasons set forth above, the Court GRANTS IN PART 8 AND DENIES IN PART Defendant’s Motion for Partial Summary 9 Judgment. 10 IT IS SO ORDERED. 11 Dated: May 27, 2021 12 Me 13 HN A. MENDEZ,

UNITED STATES DISTRICT

14 15 3 Although not argued in their briefs, even if Plaintiff did offer sufficient evidence for these theories of negligence, 16 | Plaintiff still would not be able to defeat summary judgment as none of these theories were sufficiently alleged in the 17 Complaint. See generally Compl. (alleging negligence under: (1) California Public Resource Code § 4435 based on negligent 18 | maintenance of the vehicle; (2) common law duty to “assure and maintain the machines used on the Base [. . .] such that they are 19 in a condition that they would not combust, sparking a fire on its property”; (3) under California Health and Safety Code 20 §$ 13007 by “[causing] the fire on the Base from the engine exhaust of a vehicle or machine that spread from the Base to 21 other privately-owned property”; and (4) under California Health and Safety Code § 13002 by “discharging onto the Base along its 22 roadway hot metal from an engine exhaust onto the property which [caused] a fire”); see also Pena v. Taylor Farms Pac., Inc., 23 | 2:13-CV-01282-KIM-AC, 2014 WL 1330754 at *5 (E.D. Cal. Mar. 28, 2014) (“where the complaint does not include the necessary 24 factual allegations, raising such a claim in a summary judgment motion is insufficient to present the claim to the district 25 | court.”); Adobe Lumber Inc. v. Hellman, No. CIV 2:05-1510 WBS EFB, 2010 WL 760826 at *5 (E.D. Cal. Mar. 4, 2010) (“A plaintiff 26 | may not [. . .] add facts as discovery goes along without amending the complaint because to do so would read the fair 27 notice requirement out of Rule 8(a) and would seriously undermine the rule’s goal of encouraging expeditious resolution of 28 disputes.”)