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LOMBARDINI,State Bar No. 191464 BOXER&GERSON, LLP 10-14-05 300 Frank H.Ogawa Plaza Rotunda Building, Suite 500 Oakland,California 94612 ' Telephone: (510)835-8870 UMCOURT"Am Facsimile: 510 835-0415 Conx Of � ANTONIO RUIZ,State Bar No. 155659BY: S 1101I1HT,DEPM aEPX CONCEPCION E. LOZANO-BATISTA,State Bar No.22722; W EINBERG,ROGER&ROSENFELD,P.C. A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, CA 94501-1091 Telephone:(510)337-1001 Facsimile:(510)337-1023 Attorneys for Marilu Angeles, Metzi Yarel Hernandez, Emilin Hernandez, Juana Lilian Arias, Adriana Cristina Rodriguez Arias, Alegandra Stephanie Rodriguez-Arias and Alicia Rodriguez SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF CONTRA COSTA GAS PIPELINE EXPLOSION CASES JCCP COUNCIL COORDINATION ) PROCEEDING No.4433 Coordinated Actions: ) KNOX,et al,Y.MOUNTAIN CASCADE;at al. ) FIRST AMENDED COMPLAINT FOR (Contra Costa Sup.Ct.Case No.C 05-00281) ) PERSONAL INJURIES AND WRONGFUL FARLEY v.MOUNTAIN CASCADE,at al. ) DEATH (Contra Costa Sup.Ct.Case No.C 05-01573) ) REYES,at al.v.EAST BAY MUNICIPAL ) ANGELES,at al.v.KINDER MORGAN,at al. UTILITY DISTRICT,et al. ) (Alameda Sup.CL Case No.RG-05-195680) (Alameda Sup.Ct.Case No.RG-05-207720) ) ARIAS,at al.v.KINDER MORGAN,et al. ) (Alameda Sup.Ct Case No.RG05-195567) ) ANGELES,at al.v.KINDER MORGAN,at al. ) (Alameda Sup.Ct Case No.RG-05-195680) ,fie t✓"t1s'QS 2 MARILU ANGELES, individually and as FIRST AMENDED COMPLAINT FOR .guardian ad litem for METZI YAREL PERSONAL INJURIES AND HERNANDEZ and EMILIN WRONGFUL DEATH HERNANDEZ,minors, Plaintiffs, Vs. KINDER MORGAN, INCORPORATED; KINDER MORGAN ENERGY PARTNERS LP; MOUNTAIN CASCADE, INC.;SFPP,L.P., COMFORCE TECHNICAL SERVICES, INC,EAST BAY MUNICIPAL UTILITY DISTRICT(EBMUD),CAROLLO . } ENGINEERS P.C.,DOES 3-19,DOES } 21-30 and MARIEL HERNANDEZ, ) Defendants. 3 Plaintiffs,by and through their attorneys Boxer&Gerson,LLP,and Weinberg, Roger&Rosenfeld, P.C., allege as follows: GENERAL ALLEGATIONS 1. Defendant Mountain Cascade, Inc.is a corporation-organized under and by virtue of the laws of the State of California with its principal place of business in the County of Alameda. , 2. The events in issue occurred during the performance of a contract entered into in the County of Alameda. 3. East Bay Municipal Utility District(EBMUD;formerly DOE 20)is a publicly-owned utility formed under the Municipal Utility District laws of the State of California with its headquarters in the City of Oakland, County of Alameda. A timely claim was filed with EBMUD on April 29,2005. A true and correct copy of that claim is attached as Exhibit A. Said claim was denied by EBMUD by letter of May 2,2005. A true and correct copy of that letter is attached as Exhibit B. 4. The events in issue occurred on or about Tuesday, November 9,2004, in and adjacent to a 14-foot deep trench within the South Broadway Easement in a residential neighborhood between Newell Avenue and Rudgear Road,in the City of Walnut Creek,County of.Contra Costa,State of California. 5. In and adjacent to the 14-foot trench, construction workers were building a 69-inch water pipeline, known as the Northern Pipeline,to transport water from Walnut Creek to San Ramon. 6. East Bay Municipal Utility District's general contract was initially awarded on or about September 24,2002,to Modem Continental Construction of Cambridge, Massachusetts. On or about May 28,2004, East Bay Municipal Utility District issued a "Notice of Default Termination"to Modem Continental Construction. 7. On or about August 10,2004, East Bay Municipal Utility District awarded its general contract to Mountain Cascade, Inc. 1 8. Mountain Cascade, Inc.,in compliance with the provisions of the 4 Subletting and Subcontracting Fair Practices Act of the Public Contract Code of the State of California, listed and employed Matamoros Pipeline, Inc.to perform welding on the 69-inch Northern pipeline. 9. The route of the 69-inch Northern pipeline was to be generally parallel to, east of and above a 104nch petroleum products pipeline. 10. On or about Tuesday, November 9,2004 Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP and SFPP, LP(formerly Doe 1)owned and operated the 104nch petroleum products pipeline for purposes of transporting gasoline approximately 60 miles from Concord to San Jose. 11. Kinder Morgan, Incorporated is the general partner of Kinder Morgan Energy Partners LP. Kinder Morgan Energy Partners LP owns all assets of and controls SFPP, LP. SFPP, LP in turn does business as the"Pacific Operations"of Kinder Morgan Energy Partners, LP. 12. Comforce Technical Services, Inc.(formerly DOE 2)is and at all relevant times was a corporation organized pursuant to the laws of the State of Delaware,doing business with the State of California,and provided temporary employees and staffing to take direction from Kinder Morgan, Incorporated,Kinder Morgan Energy Partners, LP,and SFPP, LP. 13. Caroilo Engineers P.C.is and at all relevant times was organized pursuant to the laws of the State of Arizona,doing business within the State of California, and providing consulting,design and related engineering services for water and wasterwater treatment facilities,including the Northem Pipeline project in issue. Plaintiffs have as to Carollo Engineers P.C.filed pursuant to Section 411.35 the required Certificate of Merit. 14. The true names and.capacities of Defendants.Does 3 through 19 and 21 through 30 are unknown to Plaintiffs and joined herein by said fictitious names. Plaintiffs are informed and believe and thereon allege that each said Doe Defendant is negligently or otherwise legally responsible in some manner for the events and happening herein described,and negligently or otherwise legally caused the injuries i and damages claimed,such that plaintiff will amend this complaint to show their true ' names and capacities when ascertained. 15. . Plaintiffs are informed and believe,and thereon allege,that each of the Defendants was,at all times relevant to this action,an agent,servant,employee, l partner,joint venturer,and/or alter-ego of the remaining Defendants and/or that i 5 Defendants'advice or encouragement to act operated as moral support and, in doing the things herein alleged,was acting within the course and scope of that relationship. Plaintiffs are further informed and believe,and thereon allege,that each of the Defendants herein gave consent to,ratified,and/or authorized the acts alleged herein, of each of the remaining Defendants,except as may be hereinafter otherwise specifically alleged. 16. On or about Tuesday,November 9,2004, at about 1:30 p.m.,gasoline escaped from the 104rich petroleum products pipeline. When it ignited and exploded, several construction workers were injured and five eventually died. 17. Among those who were injured and died was Israel Hernandez ("Decedent"),an employee of Matamoros Pipeline, Inc. 18. On or about November 9,2004, plaintiff Marilu Angeles was the domestic partner of and was dependent upon Israel.Hernandez. 19. Plainfiffs Metzi Yarel Hernandez,born January 16,2001,the daughter of Decedent and Emilin Hernandez,born January 12,2003,the daughter of Decedent, and Defendant Mariel Hernandez, born on or about 1987,the daughter of Decedent, are the heirs and successors in interest of Decedent. 20. Plaintiff Madlu Angeles,mother of Metzi Yarel Hernandez and Emilin Hernandez,is the duly appointed guardian ad!item of Metzi Yarel Hemandez and Emilin Hernandez, minors. 21. Prior to'the death of Decedent, Plaintiffs Metzi Yarel Hernandez and Emilin Hernandez had the right to receive and were dependent on'their father for support and maintenance. 22. As a legal result of the negligence and/or other conduct of Defendants, and each of them,legally and/or proximately causing death to Decedent, Plaintiffs have sustained injuries,damages,and/or losses including, but not limited to, loss of love, companionship,comfort, affection,society,solace,moral support, physical assistance, financial support, contributions,and services of Decedent, in a sum to be ascertained at the time of trial. 23. As a further and legal result of the negligence and/or other conduct of Defendants,and each of them,legally and/or proximately causing death to.Decedent, Plaintiffs have Incurred funeral and burial expenses in a sum to be proved at the time of trial,which is the reasonable value of such services. 24. The above General Allegations are incorporated by reference into each of the following causes of action. FIRST CAUSE OF ACTION (Negligence) (By Plaintiffs Against Defendants(Cinder Morgan, Incorporated; Kinder Morgan Energy Partners LP;SFPP,LP;Comforce Technical Services, Inc.; and Does 3-19) Y 7 6 25. Defendants Kinder Morgan.Incorporated, Kinder Morgan Energy Partners LP, SFPP, LP, Comforce Technical Services, Inc.and Does 3-19 were engaged in activities including owning,operating,locating,field marking,and monitoring excavation near petroleum products pipelines transporting gasoline,jet fuel,diesel fuel and natural gas liquids. 26. Defendants Kinder Morgan, Incorporated,Kinder Morgan Energy Partners LP,SFPP, LP and Does 3-19 were operators of a subsurface installation within the meaning of Government Code§4216. 27. On or about February 2,2003 defendants EBMUD and SFPP,.LP entered into a"pipeline inspection agreement"by which upon receiving notice, SFPP, LP agreed to provide pipeline inspection services during EBMUD's construction activities near the Petroleum Products Pipeline,and EBMUD agreed to pay the actual cost of pipeline inspection. 28. Said Defendants,and each of them,received notification of proposed excavation work in accordance with Government Code§4216.2. 29. Said Defendants,and each of them, undertook but failed to locate and field mark a strip of land not more than 24 Inches on either side of the exterior surface of the subsurface installation which may be affected by the excavation,to the extent and degree of accuracy that the information is available either in the records of said defendants, and as determined through standard locating techniques other than excavation, and undertook to advise of the location of the operator's subsurface installations which may be affected by the excavation,in accordance with Government Code§4216 and 4216.3. 30. Said defendants knew such activities create the existence of a high degree of risk of harm to persons,land,and chattels of others,and create the likelihood that such harm that results will be great. 31. At all times herein mentioned,defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners,LP,SFPP,LP,Comforce Technical Services, Inc.and each of them,breached their duty of care to decedent,and were negligent as owners, operators,and entities having retained control of the petroleum products pipeline by, among other things: -improperly hiring,training,retaining,and supervising their employees, agents,representatives,and independent contractors,including (among others)a contractor.known as Comforce Technical Services, Inc.,for the performance of work on the Petroleum Products Pipeline and other work in relation to the Northern Pipeline Project,including but not limited to work involving the determination of the location of the Petroleum Products Pipeline,data which needed to be ascertained before workers could safely excavate and work in the area of the EBMUD Northern Pipeline and Petroleum Products Pipeline; -improperly failing to create,obtain,and/or analyze the proper utility maps,plans and drawings showing the accurate location of the Petroleum Products Pipeline,or otherwise failing to property ascertain the i� actual location of the Petroleum Products Pipeline with reference to the excavation path,prior to allowing workers to excavate and work in the area of the EBMUD Northern Pipeline and Petroleum Products Pipeline; -Improperly failing to secure accurate information concerning the location of the Petroleum Products Pipeline in the area where the fire and explosion occurred so that proper marking of the Petroleum Products Pipeline could be made at or near its intersection with the EBMUD Northern Pipeline; -improperly failing to obtain the proper permits and other authority to allow for work to be completed in the vicinity of the Petroleum products Pipeline and EBMUD Northern Pipeline; -Improperly failing to locate and field mark the location of the Petroleum Products Pipeline prior to the excavation by workers in the area of the EBMUD Northern Pipeline and Petroleum Products Pipeline in violation of,among other things,Government Code Sections 4216 and 4216.3; •improperly failing to relocate the Petroleum Products Pipeline to a location away from the immediate vicinity of the.Northern Pipeline Project and the EBMUD Pipeline,-prior to permitting workers on the Project to conduct their duties; Improperly failing to address the expressed concerns of entities working on the Norther Pipeline Project,or who had worked on the Northern Pipeline Project(including,among others, Modem Continental Construction Co., EBMUD,and DOES 1 to 100,and each of them), regarding the need for properly ascertaining the location of the Petroleum Products Pipeline as.related to the location of the EBMUD'Northem Pipeline;and failing to properly and appropriately inform and communicate to workers on the Northam Pipeline Project appropriate knowledge and warnings concerning the location of the Petroleum Products Pipeline,and the dangers related thereto which they might encounter, -Improperly failing to provide necessary safeguards to EBMUD Northern E Pipeline workers so as to prevent breach of the petroleum line during the • a 8 progress of the work; -improperly allowing the use of power-operated or power-driven excavating or boring equipment within the vicinity of the Petroleum Products connection with the Northern Pipeline Project,without proper safeguards; -Improperly failing to inspect,or to do so as frequently as necessary,the Petroleum Products Pipeline,and the proximity of workers thereto,during the work on the Northern Pipeline Project under circumstances where, through contact with all involved the said defendants knew or should have known that the Petroleum Products Pipeline could be breached or damaged by excavation work for the Northern Pipeline Project; ( -Improperly failing,through employees including Mike Biggs who was or were on site both the day before this incident and the day it occurred,to inform Mountain Cascade,and others excavating in the immediate area, of the known deviation in the Petroleum Products Pipeline,which brought it in dose proximity to the excavation path of the EBMUD Northern Pipeline,and therefore put workers in immediate danger; -improperly failing to do all of the above,despite having been informed by entities which previously had performed work at the Northern Pipeline Project site that workers were having difficulty ascertaining the location of the Petroleum Products Pipeline,so that it could be avoided during their excavation;and -Improperly failing to do all of the above,despite knowledge that this same Petroleum Products Pipeline had been damaged previously during excavation work,at two different locations thereof. SECOND CAUSE OF ACTION (Unfair Competition) (By Plaintiffs Against Defendants Kinder Morgan, Incorporated; { i 9 Kinder Morgan Energy Partners LP;SFPP, LP and Does 3-19) 32. Kinder Morgan, Incorporated is one of the largest midstream energy companies in the country,operating more than 35,000 miles of natural gas and products pipeline. 33. Kinder Morgan Energy Partners LP is the largest independent owner/operator of products pipelines in the country,transporting more than two million barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day of natural gas liquids,through more than ten thousand miles of pipelines,of which some 3,850 miles are in its Pacific Operations pipeline system. 34. Kinder Morgan Energy Partners LP is the nation's largest publicly traded pipeline limited partnership in the United States in terms of market capitalization. 35. Kinder Morgan Energy Partners LP owns a 45%interest in the Cochin Pipeline System, a 1900-mile natural gas liquids pipeline operating between Alberta and Ontario in Canada that-transverses through seven states in the United States. 36. On July 16,2003,at approximately 5:30 a.m.,the USA portion of the Cochin Pipeline System experienced a rupture and fire at a rural location approximately 75 miles east of Fargo, North Dakota. 37. On July 30,2003,a Kinder Morgan Energy Partners pipeline broke in a Tucson subdivision. Gasoline sprayed more than fifty feet into the air,saturated five homes being built,and contaminated soil and groundwater. 38. On April 29,2004,at approximately 7:00 p.m., a Kinder Morgan Energy Partners pipeline which transports gasoline,jet fuel, and diesel to Chico and Sacramento,California and to Reno, Nevada,experienced a rupture not discovered until April 30,2004,as a result of which approximately 1,000 barrels or 42,000.gallons of diesel spilled into about 250 acres of Suisun Marsh,among the most important wetlands in Northern California. Criticized for the delayed response,a managing agent of Defendants Kinder Morgan, Incorporated and Kinder Morgan Energy Partners LP replied"You can't cry wolf every time you see an anomaly.n .............. . 10 39. On November 22,2004,for the second time in as many months,a pipeline that transports gasoline from Colton and Barstow, California into Las Vegas, Nevada experienced a rupture in a rural area near Baker, California. California Highway Patrol officers on nearby Interstate 15 noticed a strong odor and closed the freeway,which led to discovery of a 50-to-60 foot gasoline vapor geyser. 40. The"Pacific Operations"unit of Kinder Morgan, Incorporated,Kinder Morgan Energy Partners LP and SFPP, LP and Does 3-19 has experienced at least 44 accidents since January 1,2003,for which said defendants were required to file a written report under 49 C.F.R.§195.54. At least eight known accidents resulting in .releases into the surrounding environment since April 27, 1944 occurred in or near high consequence areas(as defined in 49 C.F.R.§195.450)and/or major transportation corridors. These eight accidents include"a failure on line LS-16 resulting in the release of gasoline that killed five workers in Walnut Creek, California,around November 9,2004." Of these eight accidents,five are attributed to outside force damage(e.g.third party damage caused by an excavator or other source,caused during construction of the pipeline,etc.) (� 41. According to the U.S. Department of Transportation's"Pipeline and Hazardous Materials Safety Administration,""the recent accidents"indicate a widespread failure to adequately detect and address the effects of outside force damage and corrosion. This failure.has systemically affected the integrity of the Pacific Operations Unit" 42. According to the U.S. Department of Transportation's"Pipeline and Hazardous Materials Safety Administration," due to the"number and frequency of recent accidents through the Pacific Operations Unit,the repeated environmental- consequences of the accidents,the trend of outside force damage and corrosion,the repeated failure through the use of internal inspection tools to identify potential threats that have resulted in accidents,and the proximity of the majority of the Pacific Operations Unit to high consequence areas and/or major transportation corridors;the continued operation of said Defendant's Pacific Operations Unit"without corrective measures will be'hazardous to life,property and the environment" 43. Defendants Kinder Morgan Incorporated,finder Morgan Energy Partners LP,and Does 1-20 were operators of a subsurface installation within the meaning of Government Code§4216. 44. Said Defendants,and each of them, received notification of proposed excavation work in accordance with Government Code§4216.2. 45. In 2003,Modern Continental Construction determined that another segment of the petroleum products pipeline was approximately 13 feet from where it was marked by Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP,and Does 1-20. 46. Prior to November 9,2004, Kinder Morgan, Incorporated,Kinder Morgan Energy Partners LP,and Does 1-20 received notification of proposed excavation work between pipe stations 100+00 and 101+00. �� 47. Said Defendants,and each of them,failed to locate and field mark the - 11 approximate location which may be affected by the excavation,to the extent and degree of accuracy that the information is available either in the records of the operator as determined through standard locating techniques other than excavation,failed to advise of the location of the operator's subsurface installations which may be affected by the excavation,in accordance with Government Code§4216.3, and/or failed to monitor the progress of the excavation. 48. Defendants Kinder Morgan,Incorporated and Kinder Morgan Energy Partners LP customarily failed to monitor their facilities. 49. On account of inaccuracy in the work of marking and locating pipelines, Defendants in advising excavators of the location of the pipelines which may be affected by the excavation made statements and engaged in conduct which was f� unlawfully deceptive and misleading to members of the public. 50. Such activities were a substantial factor in directly causing harm to Decedent and Plaintiffs. 51. Such harm to Decedent and Plaintiffs was of the kind that would be anticipated as a result of inaccuracy in the work of, locating,field marking, and advising excavators of the location of petroleum products pipelines transporting gasoline,aviation fuels,and diesel through a residential neighborhood and community. 52. Kinder Morgan,Incorporated,Kinder Morgan Energy Partners LP,and Does 1-20 possessed knowledge and experience in such field of work,and knew or should have known that the work was likely to involve this risk. 53. Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners LP,and Does 1-20 thereby engaged in unfair competition,i.e.,in an unlawful,unfair or fraudulent business act or practice within the meaning of Section 17200 of the Business and Professions Code. ff s i 12 11/Il THIRD CAUSE OF ACTION (Strict Liability for Ultrahazardous Activities;CACI 460) (By Plaintiffs Against Defendants Kinder Morgan Incorporated; Kinder Morgan Energy Partners LP;SFPP, LP and Does 3-19) 54. Kinder Morgan, Incorporated is one of the largest midstream energy companies in the country,operating more than 35,000 miles of natural gas and products pipeline. 55. Kinder Morgan Energy Partners LP is the largest independent owner/operator of products pipelines in the country,transporting more than two million barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day of natural gas liquids,through more than ten thousand miles of pipelines,of which some 3,850 miles are in its Pacific pipeline system. 56. Kinder Morgan Energy Partners LP is the nation's largest publicly traded pipeline limited partnership in the United States in terms of market capitalization. 57.- Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners LP, SFPP, LP and Does 3-49 were engaged in activities including owning,operating, locating,field marking,and monitoring excavation near petroleum products pipelines transporting gasoline,jet fuel,diesel fuel and natural gas liquids. 58. - Such activities create the existence of a high degree of risk of harm to persons, land and chattels of others,create the likelihood that harm that results from it will be great,and are inappropriate to the surrounding residential neighborhoods, schools,and communities where it was carried on,such that their value to such communities is outweighed by their dangerous attributes. 59. Such activities were a substantial factor in causing harm to Decedent and Plaintiffs. t ....................... .. - ._..... ti 13 60. Such harm to Decedent and Plaintiffs was of the kind that would be anticipated as a result of the risk created by operating,locating,field marking,and monitoring petroleum products pipelines transporting gasoline,jet fuel,diesel fuel,and natural gas liquids through a residential neighborhood and community. FOURTH CAUSE OF ACTION (Peculiar Risk Doctrine;CAC 3708) (By Plaintiffs Against Defendants Kinder Morgan Incorporated; Kinder Morgan Energy.Partners LP;SFPP;LP,Comforce Technical Services, Inc.and Does 3-19) 61. The work of locating,marking,and monitoring excavation near petroleum product pipelines in residential neighborhoods,and of advising excavators of the location of such pipelines which may be affected by the excavation, is likely to involve a special risk of harm to others. 62. Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP,SFPP, LP and Does 3-19 possessed knowledge and experience in such field of work,and knew or should have known that the work was likely to involve this risk. 63. Comforce Technical Services, Inc.,an independent contractor to which Kinder Morgan Incorporated, Kinder Morgan Energy Partners LP,and Does 3-19 delegated such work,failed to use reasonable care to take specific safety measures appropriate to the danger to avoid this risk. 64. Said Defendants,and each of them, received notification of proposed excavation work in accordance with Government Code§4216.2. 65. Said Defendants,and each of them,failed to locate and field mark the approximate location which may be affected by the excavation,to the extent and degree of accuracy that the information is available either in the records of the operator as determined through standard locating techniques other than excavation,and failed to advise of the location of the operator's subsurface installations which may be affected by the excavation,in accordance with Government Code§4216.3. i f 14 66. Such failure of such independent contractor was a cause of harm to Decedent and Plaintiffs. FIFTH CAUSE OF ACTION (Willful Misconduct Causing Physical Harm by Plaintiff Marilu Angeles as Guardian ad Litem for the Successors in Interest of Israel Hernandez,Deceased;Against Defendants Kinder Morgan, Incorporated,Kinder Morgan Energy Partners, LP,SFPP, LP and Does 3-19) 67. Defendants,and each of them, knew that construction workers were excavating a trench and building a 694nch pipeline to transport water from Walnut Creek to San Ramon,in accordance with a written general contract between East Bay Municipal Utility District and Mountain Cascade, Inc. 68. Defendants,and each of them,knew that the route of the 69-inch water pipeline was to be generally parallel to,east of and above a 10-inch petroleum products pipeline owned and operated by Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP and/or SFPP,LP for transporting gasoline under high pressure approximately 60 miles from Concord to San Jose. 69. Defendants and each of them were operators of a subsurface installation within the meaning of Government Code§4216. 70. Kinder Morgan, Incorporated is the general partner of Kinder Morgan Energy Partners,LP. 71. Kinder Morgan Energy Partners LP is the largest independent owner/operator of products pipelines in the country,transporting more than two million barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day of natural gas liquids,through more than ten thousand miles of pipelines,of which some 3,850 miles are in Its Pacific Operations pipeline system. 72. Kinder Morgan Energy Partners LP is the nation's largest publicly traded pipeline limited partnership in the United States in terms of market capitalization. . 73. Kinder Morgan Energy Partners LP owns a 45%interest in the Cochin Pipeline System,a 1900-mile natural gas liquids pipeline operating between Alberta and Ontario in Canada that transverses through seven states in the United States. 74. On July 16,2003,at approximately 5:30 a.m.,the USA portion of the Cochin Pipeline System experienced a rupture and fire at a rural location approximately 75 miles east of Fargo,North Dakota. 75. On July 30,2003,a Kinder Morgan Energy Partners pipeline broke in a Tucson subdivision. Gasoline sprayed more than fifty feet into the air,saturated five homes being buil,and contaminated soil and groundwater. 76. Defendant Kinder Morgan Energy Partner LP's"Pacific Operations Unit" which includes defendant SFPP, LP has experienced at least 44 accidents since January 1,2003 for which said defendants were required to file a written report under C.F.R.§195.54. Of these 44 accidents,at least 14 resulted in releases of more than five barrels of refined petroleum products into the surrounding environment. At least l eight known accidents resulting in releases into the surrounding.environment have occurred since April 27,2004. All eight of these accidents occurred in or near high 1 15 consequence areas(as defined in 49 C.F.R. §195.450)and/or major transportation corridors and include: 1. A failure on line LS-25 resulting in the release of diesel fuel into the Suisun Marsh near Fairfield,California around April 27,2004. 2. A failure on a line between breakout tanks resulting in the release of gasoline into surrounding soil in a high-population area in Carson,California around August 3,2004. 3. A failure on line LS-47 resulting in the release of jet fuel into a' highly-populated environmentally sensitive area in Martinez, California around November 7,2004. 4. A failure on line LS-16 resulting in the release of gasoline that killed five workers in Walnut Creek, California around November 9, 2004,and is the subject of this action. 5. A failure on the CALNEV line resulting in the release of gasoline close to an environmentally sensitive area near San Bernardino, f California around November 22,2004. 6. A failure on line LS-42 resulting in the release of jet fuel into the waters of the Oakland Estuary in Oakland,California around February 7,2005. 7. A failure on line LS-12 resulting in the release of gasoline and diesel fuel into Summit Creek,which is connected to Donner Lake, near a ski resort around Truckee,California that was reported by a skier on April 1,2005. 8. A failure on line LS-17 resulting in the release of gasoline near highways in Fort Bliss Military Reservation In El Paso,Texas on May 28,2005. 77. Of these eight accidents,five are attributed to outside force damage(e.g. third party damage caused by an excavator or other source,caused during construction of the pipeline,etc.). At least three instances of latent outside force damage went unaddressed by said defendants for an indeterminate period despite internal inspection tool runs conducted by said defendants on the pipelines previous to the accidents. These accidents attributed to outside force.damage include the failures on lines LS47, (� LS-16,LS-42, LS-12*and the.CALNEV line. Approximately 50%of Kinder Morgan ............. ................ .... .. ......................... . . ........................._......... _...._. _. . .... .. .. t� 16 Energy Partners, LP's reported hazardous liquid pipeline accidents between 1998 and 2003 were caused by outside force damage. 78. According to the U.S. Department of Transportation's"Pipeline and Hazardous Materials Safety Administration,"said defendants'recent accidents indicate a "widespread failure to adequately detect and address the effects of outside force damage and corrosion. This failure has systemically affected the integrity of the Pacific Operations Unit." 79. The April 2004 rupture was not discovered until April 30,2004, as a result of which approximately 1,000 barrels or 42,000 gallons of diesel spilled into about 250 acres of Suisun Marsh,among the most important wetlands in Northem California. Criticized for the delayed response,a managing agent of Defendants Kinder Morgan, Incorporated and Kinder Morgan Energy Partners LP replied"You can't cry wolf every time you see an anomaly-" 80. The November 22,2004 rupture,the second in as many months in a pipeline that transports gasoline from Colton and Barstow, Califomia into Las Vegas. California,was discovered by Highway Patrol officers on nearby Interstate 15 who noticed a strong odor and dosed the freeway,which in tum led to discovery of a 50-to-60 foot gasoline vapor geyser. Defendants'spokesman Larry Pierce stated "it's not a significant financial impact to the company at all. it's more of an operational issue." 81. Said defendants'"widespread failure to adequately address the effects of outside force damage and corrosion," recent accidents and responses are in accordance with said defendants' business practices and policies established at the level of officers,directors and employees who possess substantial discretionary authority including Richard Kinder and Michael Morgan,that expenses be minimized and profits be maximized with conscious disregard for the consequences. 82. Defendants,and each of them, knew that East Bay Municipal Utility District's contract with them required compliance with all applicable statutes and occupational and health standards, rules, regulations,and orders. 83. Defendants,and each of them, knew that to guard against extreme risk of injury to persons and property, East Bay Municipal Utility District's contract with its general contractor specified that work along South Broadway is adjacent to a high pressure petroleum pipeline owned by Defendants;that construction activities should be coordinated with Lary Hosler, Manager Pipeline Maintenance,Kinder Morgan, Incorporated;and that the contractor shall notify said defendants and all owners of utilities when his work is in progress. 84. Said Defendants,and each of them,were aware of their responsibility upon notification of proposed excavation work in accordance with Government Code §4216.2,to locate and field mark not more than 24 inches on either side of the exterior surface of subsurface installations which may be affected in accordance with Government Code Sections 4216 and 4216.3. ( 85. Defendants, and each of them,knew that operating,locating,field A 17 marking and excavating near petroleum products pipelines transporting gasoline,jet and diesel fuels created the existence of a special,high degree of risk of harm to persons, land and chattels of others,knew the likelihood that harm that results from it will be great,and knew the petroleum products pipeline was inappropriate to the surrounding residential neighborhood,school,and community where it was located. 86. Defendants,and each of them,knew that Matamoros Pipeline, inc.,their welding subcontractor,and its employees would rely for their safety upon defendant's compliance with statutory,regulatory,and contract terms including but not limited to locating,field marking,and monitoring excavation near the petroleum products pipeline. 87. Defendants,and each of them,knew that East Bay Municipal Utility ( District's general contract was initially awarded to Modem Continental Construction of Cambridge,Massachusetts. 88. Defendants,and each of them,knew that in 2003 Modem Continental Construction determined that a segment of the petroleum products pipeline was approximately 13 feet from where it was marked by defendants. .89. Defendants,and each of them,knew that in May 2004 East Bay Municipal Utility District terminated its general contact with Modem Continental in part for working too slowly. 90. Defendants,and each of them,knew that prior to November 9,2004, Modem Continental Construction objected to termination of its general contract with East Bay Municipal Utility District,expressed concern about the petroleum products pipeline along South Broadway,filed suit for breach of contract,and alleged its delays were due In part to problems with how well the 10-Inch petroleum products pipeline was located on general contract documents and plans. 91. Defendants,and each of them,knew that prior to November 9,2004, East Bay Municipal Utility District awarded its general contract to Mountain Cascade, Inc. 92. Defendants,and each of them,knew that Mountain Cascade, Inc. advertised that"we routinely take on rough projects that our competitors shy away from 18 and tum them into profit." 93. Defendants and each of them,knew that Mountain Cascade, Inc. has had two deaths in the last five years,the most recant being In March 2004 when a worker was crushed while unloading pipe. 94. Defendants,and each of them,made to East Bay Municipal Utility District, Decedent's employer Matamoros Pipeline, Inc., Decedent's coworkers,and Decedent, representations of material fact as follows: a. Defendants Kinder Morgan-, Incorporated,Kinder Morgan Energy Partners LP,SFPP, LP and Does 3-19 placed field marking devices_so as to represent the location of their petroleum products pipeline; b. Defendants Kinder Morgan, Incorporated,Kinder Morgan Energy Partners, LP,SFPP, LP and Does 3-19 through employees including Mike Biggs and temporary employees including Peter Brooks and Mark Pressley stated to EBMUD,Carlos Rodriguez and Mark Miller and to Mountain Cascade,Shawn Ross and Gene Im and others that field marking devices accurately represented the location of their petroleum products pipeline,that excavators need only follow the field marking devices to avoid conflict with their petroleum products pipeline,and that additional locating or monitoring by said defendants was unnecessary. 95. These representations were in fact false, and the truth was as follows: E a. The petroleum products pipeline was not where Kinder Morgan, Incorporated, Kinder Morgan Energy partners, LP,SFPP,LP and Does 3-19 represented it to be; b. Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP,SFPP, LP, and Does 3-19,and each of them, had failed to locate and field mark the approximate location which may be affected by the excavation,to the extent and degree of accuracy that the information is available either in their own records or through standard locating techniques other that excavation; c. Defendants,and each of them,for their financial benefit had knowingly failed to employ sufficient trained personnel and knowing employed unfit personnel including Mike Biggs and temporary employees Peter Brooks and Mark Pressley of Comforce Technical Services, Inc.to locate and mark the petroleum products pipeline. d.The exact location of the petroleum products pipeline,not where field marking indicated it to be,was determinable from records,drawings,and contract documents in the possession of Defendants Kinder Morgan, Incorporated,Kinder Morgan Energy Partners LP, Mountain Cascade, Inc.,SFPP,LP'and Does 3-19. e. The records,drawings,and contract documents in the possession of Defendants depicted a bend in the 10"petroleum pipeline between pipe stations 100+00 and 101+00. 96. Defendants,and each of them, authorized and made the representations 19 with the intent that the representations be communicated to Decedent's employer, Decedent's coworkers,and Decedent,that the representations induce Decedent's employer, Decedent`s coworkers,and Decedent to work and act in justifiable reliance upon the representations,which actions Defendants knew involved an unreasonable risk of physical harm to Decedent's coworkers and Decedent. 97. Decedent's employer,Decedent's coworkers and Decedent received Defendants'misrepresentations,and justifiably relied upon them. 98. Defendants,and each of them,in failing to notify,failing to mark even the approximate location,and failing to determine the exact location of the petroleum products pipeline,before excavating with power-operated or power-driven excavating or boring equipment, acted intentionally and despicably and with willful and conscious disregard of the safety of workers in the vicinity. 99. Defendants Kinder Morgan, Incorporated,Kinder Morgan Energy Partners LP,SFPP, LP and Does 3-19 had advance knowledge of the unfitness of agents and employees, including but not limited to those who placed field marking devices,those who represented that excavators need only follow field marking devices to avoid conflict with the petroleum products pipeline,and those who failed to determine its exact location from records,drawings, contract documents in their possession,or excavation with hand tools,and employed them with conscious disregard for the rights and safety of others. 100. Jansen,defendants'Vice-President of Operations and Engineering, falsely stated following the events in questions"the workers had been provided maps and should have been aware of the fuel pipeline's location." 101. Defendant's press release dated November 10,2004 stated defendants "do not expect this incident will have a significant adverse financial impact,"nor does it appear the incident"will require a major environmental clean-up." 102. Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP,SFPP, LP,and Does 3-19,and each of them,through officers,directors and/or managing agents thereby authorized said acts of employees and temporary employees,and thereafter ratified said acts by continuing to employ them,by failure to criticize,censure,terminate,suspend or take other remedial action against them, by press releases, by interfering with attempts by regulatory authorities including but not limited to Cal-OSHA to interview them,and by providing them with legal counsel so as to defend their conduct. 103. The above-described conduct of Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners, LP,SFPP, LP,and Does 3-19,and each of them,which includes intentional disregard of safety standards and acting in a manner calculated to interfere with or deceive regulatory authorities,for Defendants' financial benefit,was despicable and carried on with a willful and conscious disregard for the rights and safety of others. 104. The above-described conduct of Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners,LP,SFPP,LP,and Does 3-19,and each of them,which includes intentional disregard of safety standards and acting in a manner calculated to stonewall or deceive regulatory authorities,for Defendants' financial benefit,subjected persons to cruel and unjust hardship in conscious disregard for such persons'rights. j 20 SIXTH CAUSE OF ACTION (Negligence) (By Plaintiffs Against Defendants EBMUD and Does 21-30) 105. At all times herein mentioned EBMUD was engaged in the business of planning,designing,owning,supervising, controlling and constructing a water supply line called the Northern Pipeline,thereby creating the need for the construction project described herein. 106. At all times herein mentioned EBMUD owed a duty of care to others, including decedent,with regard to the planning,design,ownership,supervision, control,surveying,and construction of the water line and the Project in a safe manner, so as to insure the safety of the public and those working on the Project, including decedent. 107. In planning,designing,owning,supervising,controlling and constructing the Project, EBMUD(among other things)remained in control,concealed hidden dangers, and actively,directly, negligently,and wrongfully acted and/or failed to act as follows: • hired Mountain Cascade, Inc.,and others,to perform the work on the Project; f • supervised Mountain Cascade, Inc.,and others including Kinder Morgan Energy Partners,in the performance of the work on the Project; • failed to correctly determine the location"of the Kinder Pipeline before allowing Mountain Cascade, Inc.,and others,to excavate in the area; • pressured Mountain Cascade, Inc.,and others,to complete the work on the Project in a time frame that was not feasible without endangering the safety of the public and those working on the Project, including Israel Hernandez, deceased; • failed to create,obtain and/or analyze the proper utility maps showing the location of the Kinder Pipeline before allowing Mountain Cascade, and others,to excavate near the Kinder Pipeline and EBMUD Pipeline; • failed to obtain the proper permits and other authority to allow for work to be completed in the vicinity of the Kinder Pipeline by Mountain Cascade,and others; • created a dangerous condition of public property by performing work, or allowing work to be performed on its behalf,on the Project in the immediate vicinity of the Kinder Pipeline as opposed to another location in the City of Walnut Creek where the Kinder Pipeline was not located; • failed to require Kinder Morgan Energy Partners to relocate the Kinder Pipeline to a location away from the immediate vicinity of the Project; 3 21 • failed to notify Mountain Cascade,and others,of concerns by other entities working on the Project or who worked on the Project(including among others Modem Continental Construction Co.and Kinder Morgan Energy Partners)regarding the location of the Kinder Pipeline to the vicinity of the Project; • failed to proceed,and require Mountain Cascade and others including Kinder Morgan Energy Partners, L.P.,to proceed,with the work around the Finder Pipeline through safe and acceptable means; • failed to conduct, and require Mountain Cascade and others including Kinder Morgan Energy Partners to conduct,daily inspections by a competent individual prior to the start of work and as needed throughout the shift for evidence of a situation that could result in a hazardous condition,such as that which resulted in the death of Israel Hernandez,deceased;and • failed to remove,and require Mountain Cascade and others including Kinder Morgan Energy Partners to remove, Individuals working on the Project, including Israel Hernandez,deceased,from the hazardous area until necessary precautions had been.take to ensure the safety of those individuals,including i. Israel Hernandez,deceased. SEVENTH CAUSE OF ACTION (Negligence) (By Plaintiffs Against Defendant Mountain Cascade, Inc.and Does 21-30) Defendants Mountain Cascade, Inc.and Does 21-30 occupied and controlled property in which a 14-foot deep trench was being excavated. 108. The property contained a hidden condition or conditions which created an unreasonable risk of harm. 109. As the occupier who controlled the property said defendants knew or should have known about such condition or conditions. 110. As the occupier who controlled the property said defendants failed to make reasonable inspections to discover such condition or conditions. 111. As to the occupier who controlled the property said defendants failed to take reasonable precautions to protect against the harm,or to give adequate warning to those likely to be injured by the harm. 112. Defendant Mountain Cascade, Inc.and Does 21-30 and each of them was an"excavator"engaged in an "excavation"within the meaning of Government Code§4216. 113. Defendant Mountain Cascade, Inc.and Does 21-30 and each of them failed to contact the appropriate regional notification center at least two working days 22 but not more than fourteen calendar days prior to conducting an excavation in an area which is known or reasonably should be known to contain subsurface installations, in violation of Government Code§4216.2. 114. Defendants Mountain Cascade, Inc.and Does 21-30 and each of them undertook but failed to determine the exact location of subsurface installations in conflict with the excavation by excavating with hand tools within the area of the approximate location of subsurface installations as determined by field marking before using power-operated or power-driven excavating or boring equipment in violation of Government Code§4216.4. 115. Defendants Mountain Cascade, Inc.and Does 21-30 and each of them failed to verify location of 10"petroleum lines prior to any construction between pipe stations 100+00 and 101+00. 116. An unsafe condition was created by or known to Mountain Cascade, Inc. and Does 20-30 and was not a known condition that Plaintiffs'Decedent's employer Matamoros Welding was hired to correct or repair. 147. Mountain Cascade, Inc.and Does 21-30 retained control over safety conditions at the worksite and through their actions or failure to take actions they contributed to death of Decedent and Plaintiffs'injuries. 118. At all times herein mentioned said Defendants,and each of them, undertook for consideration to render services, perform acts,and/or labor and%or safety inspections in the course of which said Defendants knew or reasonably should have known precautions were necessary for the protection of others including Decedent working at said premises. 119. Said Defendants,and each of them,negligently rendered services, performed acts,failed to furnish labor and reasonable safety inspections,and . otherwise failed to exercise reasonable care in said undertaking. 420. Defendants,and each of them,thereby increased the risk of harm to others, including Decedent,who were foreseeably upon said premises. 121. The resulting fire and explosion is the kind of event which ordinarily does not happen unless someone is negligent. 122. The resulting fire and explosion was caused by an agency or instrumentality in the exclusive control of said Defendants and over which said Defendants had the exclusive.right of control. 123. The resulting fin:and explosion was not due to any voluntary action or contribution on the part of the Plaintiffs'Decedent which was the cause of Plaintiffs' Decedent's injury and death. EIGHTH CAUSE OF ACTION (Willful Misconduct Causing Physical Harm by Plaintiff Marilu Angeles as Guardian ad Litem for the Successors in Interest of Israel Hernandez, Deceased; Against Defendants Mountain Cascade, Inc.and Does 21-30) 124. Defendants,and each of them,knew that construction workers were excavating a trench and building a 69-inch pipeline to transport water from Walnut Creek to San Ramon, in accordance with a written general contract between East Bay Municipal Utility District and Mountain Cascade,Inc. 125. Defendants,and each of them,knew that the route of the 69-inch water pipeline was to be generally parallel to,east of and above a 104nch petroleum products pipeline owned and operated by Kinder Morgan, Incorporated, Kinder Morgan s Energy Partners LP and/or SFPP,LP for transporting gasoline under high pressure i 23 approximately 60 miles from Concord to San Jose. 126. Defendants,and each of them,knew that East Bay Municipal Utility District's contract with them required compliance with all applicable statutes and occupational and health standards,rules,regulations,and orders. 127. Defendants,and each of them,knew that to guard against extreme risk of injury to persons and property, East.Bay Municipal Utility Districts contract with them specified that work along South Broadway is adjacent to a high pressure petroleum pipeline owned by Defendants;that construction activities should be coordinated with Larry Hosler, Manager Pipeline Maintenance, Kinder Morgan, Incorporated;that they shall notify all owners of utilities when his work is in progress;that they are responsible for having all underground utilities and structures located in advance of excavation;that they shall notify all known owners of underground utilities in the area of proposed work and Underground Service Alert,800-642-2444 at least two working days before the i start of actual excavation;that they shall determine the exact location of existing utilities whose approximate locations are shown on drawings;that contract drawings depicted a bend in the 10"petroleum pipeline between pipe stations 100+00 and 101+00;that they shall probe carefully to determine that exact location of utility,and hand excavate.when necessary to avoid damages;that they shall verify location of 10" petroleum lines prior to any construction between pipe stations 100+00 and 101+00; and that hand excavation is required within 24"on either side of the exterior surface of any underground utility. 128. Said defendants,and each of them,were aware of the responsibility to provide notification of proposed excavation work in accordance with Government Code Section 4216.2 and to determine the exact location of subsurface installations by hand . excavating in accordance with Government Code Section 4216.4. 129. Defendants,and each of them,knew that operating,locating,field marking and excavating near petroleum products pipelines transporting gasoline,jet and diesel fuels created the existence of a special,high degree of risk of harm to persons, land and chattels of others,knew the likelihood that harm that results from it will be great,and knew the petroleum products pipeline was inappropriate to the surrounding residential neighborhood,school,and community where it was located. 130. Defendants,and each of them,knew that Matamoros Pipeline,Inc.,their welding subcontractor,and its employees would rely for their safety upon defendants compliance with statutory,regulatory,and contract terms including but not limited to locating,field marking,and monitoring excavation near the petroleum products pipeline. S 2 24 131. Defendants,and each of them,knew that East Bay Municipal Utility District's general contract was initially awarded to Modem Continental Construction of Cambridge,Massachusetts. 132. Defendants,and each of them, knew that in 2003 Modem Continental Construction determined that a segment of the petroleum products pipeline was approximately 13 feet from where it was marked by Kinder Morgan, Incorporated, Kinder Morgan Energy Partners, LP and SFPP, LP. 133. Defendants,and each of them, knew that in May 2004 East Bay Municipal Utility District terminated its general contact with Modern Continental in part for working too slowly. 134. Defendants,and each of them, knew that prior to November 9,2004, Modem Continental Construction objected to termination of its general contract with East Bay Municipal Utility District,expressed concern about the petroleum products pipeline along South Broadway,filed suit for breach of contract, and alleged its delays were due in part to problems with how well the 10-inch petroleum products pipeline was located on general contract documents and pians. 135. Defendants,and each of them, knew that prior to November 9,2004, East Bay Municipal Utility District awarded its general contract to them. 136. Defendant Mountain Cascade,Inc.was an"excavator"engaged in "excavation"within the meaning of Government Code Section 4216. (> 137. Defendant Mountain Cascade, Inc.advertised a policy established at the level of officers,directors and supervisory employees who exercise substantial discretionary authority that"we routinely take on rough projects that our competitors shy away from and tum them into profit." 138. Defendant Mountain Cascade, Inc. has experienced two deaths in the last five years,the most recent being in March 2004 when a worker was crushed while unloading pipe,yet knowingly employed upon East Bay Municipal Utility District's's Northern Pipeline project a supervisory employee whose crew was responsible for one such death. 139. Defendants,and each of them,made to East Bay Municipal Utility District, decedent's employer Matamoros Pipeline, Inc.,decedent's coworkers,and decedent, representations of material fact as follows: a. Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP,SFPP,LP and Comforce Technical Services, Inc.placed field marking devices-so as to represent the location of their petroleum products pipeline; b. Defendant-Mountain Cascade, Inc.and Does 20-30 by the act of using power-operated or power-driven excavating or boring equipment and otherwise,. Impliedly represented and stated they had by excavating with hand tools determined the exact location of the petroleum products pipeline. 140. Defendant Mountain Cascade, Inc.and its officers,directors and employees including Superintendent Shawn Ross,who exercised substantial discretionary authority,represented on or about September 28,2004 and November 2, 2004,to EBMUD and to a representative of the owner of the petroleum products pipeline who pursuant to agreement with EBMUD was monitoring Mountain Cascade, Inc.'s excavation for the protection of workers including decedent,and others,that it and the persons in charge of the power-operated or power-driven excavating or boring i 25 equipment were aware of the exact location of the petroleum products pipeline. 141. These representations were in fact false,and the truth was as follows: a. Mountain Cascade, Inc. had knowledge from contract drawings that the petroleum products pipeline was not where Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP,SFPP,LP and Comforce Technical Services, Inc. represented it to be; b. Mountain Cascade, Inc.had.knowledge from contract drawings that Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP,SFPP, LP and Comforce Technical Services, Inc.,and each of them, had failed to locate and field mark within 24 inches of the exterior of the petroleum products pipeline,or to the extent and degree of accuracy that the information is available in their own records; C. The exact location of the petroleum products pipeline had not been determined by excavating with hand tools; d. The records,drawings,and contract documents in the possession of defendants depicted a bend in the 10"petroleum products pipeline between pipe. stations 100+00 and 101+00; e. Mountain Cascade, Inc.and its Superintendent Shawn Ross who exercised substantial discretionary authority considered plans to be"guidelines"and "95%of the time not accurate"and considered it"not a good idea to ask for a re-mark" of a petroleum products pipeline because.Mountain Cascade, Inc,would have to stop work for 48 hours at the expense of profit; f. Mountain Cascade, Inc.had not through safety meetings or otherwise advised the person in charge of the power-operated or power-driven excavating or boring equipment of the presence or location of the or products pipeline. 142. When defendants and defendants'Superintendent Shawn Ross,and each of them,made the above representations,said defendants knew them to be false, had no reasonable ground for believing the representations were true,and knew they had not the knowledge which they professed. 143. Defendants,and each of them,made the representations with the intent that the representations be communicated directly and through third persons to decedent's employer, decedent's co-workers,and decedent to work and act in justifiable reliance upon the representations,which actions defendants knew involved an unreasonable risk of physical harm to decedent's co-workers and decedent. 144. Decedent's employer,decedent's co-workers and decedent received defendants'misrepresentations including defendants'implied representation by using power-operated or power-driven excavating or boring equipment that they were aware of-the exact location of the petroleum products pipeline,and justifiably relied upon them. 145. Defendant,in failing to determine the exact location of the petroleum products pipeline, before excavating with power-operated or power-driven excavating or boring equipment,acted intentionally and despicably and with willful and conscious disregard of the safety of workers in the vicinity. 146. Defendant Mountain Cascade, Inc.had advance knowledge of the unfitness of agents and employees,including those whose crews had experienced prior deaths,those who represented that excavators were aware of the location of the petroleum products pipeline,and those who failed to determine its exact location from records,drawings,contract documents in their possession, or.excavation with hand E 26 tools,and employed them with conscious disregard for the rights and safety of others. 147. Defendant Mountain Cascade, Inc.through its officers,directors and/or managing agents possessing discretionary authority thereby authorized said acts of employees and thereafter rated said acts by continuing to employ them,by failure to criticize, censure,terminate,suspend or take other remedial action against them, by . interfering with attempts by regulatory authorities including but not limited to Cal-OSHA to interview them,and by providing them with legal counsel so as to defend their conduct. 148. The above-described conduct of defendant Mountain Cascade, Inc. includes intentional disregard of safety standards and acting in a manner calculated to interfere with or deceive regulatory authorities,for defendants'financial benefit,was despicable and carried on with willful and conscious disregard for the rights and safety of others. 149. The above-described conduct of defendant Mountain Cascade, Inc., which includes intentional disregard of safety standards enacted for the benefit of employees or subcontractors and acting in a manner calculated to resist efforts of regulatory authorities,for defendants'financial benefit.subjected persons to cruel and unjust hardship in conscious disregard for such persons'rights. 150. Asa proximate result of said conduct,aid reliance thereon,and of the injuries sustained, plaintiffs are entitled to the protection of Civil Code Section 3294 t� and to an award of exemplary and punitive damages in excess of the jurisdictional minimum of this court. NINTH-CAUSE OF ACTION (Plaintiffs, Individually,as against Carollo Engineers,P.C.and DOES 29-30) 151. At all times herein mentioned,defendant Camilo Engineers, P.C. and Does 29-30,and.each of them,were engaged in the business of planning and designing the construction Project herein described,and in the course thereof, provided drawings and plans to EBMUD,and others. Because of the proximity of the Petroleum Products Pipeline to the EBMUD Northern Pipeline and the work to be done with regard to the Project,Carollo Engineers,P.C.and Does 29-30 had a duty and undertook plan and design the Project in a safe manner to insure the safety of the public and those working on the Project,including decedent,and to follow.applicable rules, regulations and statutes. 152. At all times herein mentioned,Carollo Engineers,P.C.and Does 29-30, and each of them, breached that duty of care and were negligent by,among other things: -Improperly preparing and designing the plans,drawings,and maps for the Project under circumstances where they were each aware of the . incursion of the IGnder Pipeline into the Project's path, but stili failed to conduct a thorough survey of the conditions of the site so as to incorporate adequate safeguards for Project workers into their plans to deal with predictable hazards; -Improperly failing to evaluate the need for re-design and modifications of the Project at the time they,and each of them, became aware of and discovered the proximity and incursion of the Petroleum Products Pipeline into the EBMUD Northern Pipeline Project; -Improperly interpreting available field data(including"pot-holing"and ( related data)and improperly failing to request additional or missing data, I 27 after reviewing the field data as to the proximity of the Petroleum Products Pipeline to the proposed EBMUD Northern Pipeline in the vicinity of the explosion site,putting workers at risk thereby of the fire and explosion which in fact occurred; -Despite knowledge of the extreme hazards posed by the incursion of the Petroleum Products Pipeline into the path of the proposed EBMUD Northern Pipeline,improperly failing to prepare drawings,maps, and plans which effectively warned and communicated to all persons reasonably relying thereon(including those responsible for excavation in the area)the specific location of the incursion of the Petroleum Products Pipeline into the path of the EBMUD Northern Pipeline. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against Defendants,and each of ( them, as follows: 1. For general damages in excess of the jurisdictional minimum of this Court; 2. For funeral, burial and incidental expenses according to proof; 3. For loss of support and related economic losses according to proof; 4. For the Second Cause of Action only,for injunctive relief from unlawful business acts and practices; 5. For the Fifth and Eighth Causes of Action only,for damages for the sake of example and by way of punishing the Defendants named therein,pursuant to Civil Code§3294; 6. For prejudgment interest according to law, . 7. For costs of this suit;and 8. For such other and further relief as is proper. DATED:October 14,2005 BOXER&GERSON,LLP By. JOHN M.ANTON Attorneys for Plaintiffs f ... ........................... _.... ...... _...... .. .. .. _.._....._.... ......... ... ..._........ ... �����b�k 10:Cost Say MurMpatl UIMY Distrkt Rhk Management SeaNan P.O.Box 24065, US 11604 Oakland CA 94623-1055 LcBMUD CLAIM AGAINST y NAM aF AANt MARILU ANG21 individually and_ as guardim,A6� for METZI 19 N=ADC SSS OIY,SFAIE&ZP HOWPHONSM 517 Fleming #4 Vallejo, CA 94591 None MALM ADD1 M(VOW B) COY.SWE&ZP WORK PHONE NO. same same None PLACE OF OCA DA13 OF D=RENM 2 On south Broadway $etwelpr7e Bell Ave. and Rudgear Road C FCMCMiM OF OOCUW-=Wn back offocal,Itneoe wi) See Attached Exhibit A D MAY 2 2005 �"KILO. DESG'R RON OF DAWGRNyNRY/M See Attached Exhibit A � AMOUMf OF CLAM Noce $ 10,000,000.00 �oLo3E A A bML Gdkngft ° °f° POLICE D&AHIA W Of appftcM VIA owNwDrava OF vEw=Qr app ) 7 NIA tesla Von=. MAKE COLOR Mom t NuI�ER NAME9 OF EBMUD EMPLOYEES WOLVED Qt known) gan gill OR iQY0IA@IiI CaLbR !K�NUNEIER II 1Jnknown Unknown nknown -JOAN M. ANTON, Boxer & Gerson, 300 Frank S. Ogawa Plaza, Suite 540, 9 Onklandtt- CA 94612, at aeys for Marilu Angeles 510-8368 ?0 StONAt11RE Ole CL muff 1E NOTIck Ptd5Wd to gdvwwAmf amb s oft 9114 you bare 6 n oo is to No a okft lar dealN,persWWD#WY,p'pWWW pwpWfK AM l;totf)�sl�►�CorNprovl��rwppc�aon wtlt►kdbnNeded+�nr�l,Pn�+dsAeroEowaRwwlbrpayrnenttoanpdoRsbomd arab are-Ao ary eouW%c ly ardftfel board w omow,oug odd to aVW urpff Me som Ygavdmk my bbv or Anrdi feat dabs,bg aeeeend,voudW.or WM96&pd NW*~by loptton 0d b Sw comfy)*Air a perfed afoot W)v{lir one }war,byaffiaafnotercaaed8fgorM (�1,000�arbyboibsdebbdprlreidneMteldO�:erbpb»prtsoneMo/�rhastafaph.9on. by a n"afoot ommmmg ten Sousadd(S14004 orby 6oRr web hip bordn.nt and it " '.�°, EXHIBIT EXHIBIT A ATTACHMENT TO CLAIM AGAINST EBMUD MARILU ANGELES, at al. S. CIRCUMSTANCES OF OCCURRENCE Fast Bay Municipal Utility District(EBMUD)planned,designed,owned, supervised, controlled,and constrWed a public works project known as the Walnut Creek-San Raman.Valley Improvement Project("Project'). The Project involved installation of a water pipeline(`EBMUD Pipeline")and is more particularly described at http;//ww w.ebmudtcomtwatei_.&.ervvironmenftatec supply/currenL.projecWnlnuf creek san jarnon In or about May of 2004, EBMUD contracted with,among others, Mountain Cascade, Inc.,to complete construction of the Project Mountain Cascade, Inc, thereafter subcontracted with Matamoros Welding to,among other things,weld together segments of the E13MUD Pipeline, Matamoros Welding employed Israel Hernandez,born 911/1969,as a welder. On November 9,2004, Israel Hernandez was working within the course and scope of his employment at the Project,welding in the vicinity of the EBMUD Pipeline, which lay in a trench being excavated for the EBMUD Pipeline and following South Broadway between Newell Avenue and Rudgear Road In Walnut Creek, California. Near to where Israel Hernandez was working,a backhoe operator acting within the course and scope of his duties,under the direct supervision and control of EBMUD and Mountain Cascade, Ina,continued to excavate the trench In which the EBMUD Pipeline was being instafled. .A buried underground pipeline owned by,among others, Kinder Morgan Energy Partners{°Kinder Plper'me")lay Immediately adjacent to the EBMUD Pipeline trench. The Kinder Pipeline was at all times an underground utility transporting flammable material,consisting of gwIlne,diesel fuel,or jet fuel. On November 9,2004,at approximately 1;24 p.m.,the backhoe operator so . operated his equipment as to penetrate the Kinder Pipeline,causing the tlammeble material within to escape. The flammable material ignited,killing Israel Hernandez. The events are further described at; http:l/wwwr ebmud.comwater_&environmenlftater supply/current_projects/walnut creel„san r2mort valley/default/htm#November 9 1 _ t 4. DESCRIPTION OF DAMAGES/INJURIES/LOSS At the time of his death on November 9,2004, Israel Hernandez was the domestic partner of claimont Marilu Angeles, born 4/10/1876. Israel Hernandez was the father of claimants Metzl Yarel Hemandez� born 3116/2001, and Emilin Hemandez, born 9/12/2003. _ Claimants assert that in planning,designing,owning,supervising,controlling and constructing the Project, EBMUD(among other things)actively,directly, negligently, and wrongfully: ♦ hired Mountain Cascade,Inc.,and others,to perforin the work on the Project ♦ supervised Mountain Cascade, inc.,and others Including 10nder Morgan Energy Partners,in the performance of the work on the Project; # failed to correctly determine the location of the 10nder Pipeline before allowing Mountain Cascade, Inc., and others,to excavate in the area; ♦ pressured Mountaln Cascade, frit,, and others, to complete the work on the Project In a time frame that was not feasible without endangering the safety of the public and those working on the Project, including Israel Hernandez,deceased; 1 failed to create, obtain and/or analyze the proper utility mape showing the location of the IGnder Pipeline before*allowing Mountain Cascade,and others, to excavate near the Kinder Pipeline and EBMUD Pipeline; ♦ failed to obtain the proper permits and other authority to allow for work to be completed In the vicinity of the lender Pipeline by Mountain Cascade, and others, ♦ created a dangerous condition of public property by performing work,or allowing work to be performed on its behalf,on the Prolod In the Immediate vicinity of the IGnder Pipeline as opposed to another location in the City of Walnut Creek where the Kinder Pipeline was not located; failed to require lender Morgan Energy Partners to relocate the Kinder Pipeline to a location away from the Immediate vicinity of the Project ♦ failed to notify Mountain Cascade,and others,of concerns by other entities working on the Project or who worked on the Project(including 2 { • among others Modern Continental Construction Co.and 10nder Morgan Energy Partners)regarding the location of the 10nder pipeline to the vicinity of the Project; 4 failed to proceed,and require Mountain Cascade and others including lander Morgan Energy Partners,L.P.,to proceed,with the work around the(Cinder Pipeline through safe and acceptable means; failed to conduct,and require Mountain Cascade and others including Iflnder Morgan Energy Partners to conduct,.dairy inspections by a competent individual prior to the start of-work and as needed throughtxA the shift for evidence of a situation that codld result In a hazardous condition,such as that which resulted In the death of israal Hernandez, deceased;and ♦ failed to remove,and require Mountain Cascade and others including Kinder Morgan Energy partners to remove,individuals working on the Project including Israel Hernandez,deceased,from the hazardous area until necessary precautions had been take to ensurethe safety of those Individuals, Including Israel Hernandez,deceased. Claimants assert that EBMUD's negligent wrongful conduct was a substantial factor in bring about personal Injuries to and the death of Israel Hernandez. Israel Hernandees claims for compensatory damages for personal Injury survive his death, and are asserted by claimant Marilu Angeles. Additlonally, dalmants Metz!Yam] Hernandez and Emliin Hernandez have a-cialm for'compermtory damages for the wrongful death of Israel Hernandez Claimants assert all such claims against,among others,EBMUD. DATED: April 2005 BOXER&GERSON, LLP JOHN M.ANION ` Attorneys for Claimants 3 i 13 y J FAST BAY MUNICIPAL Ur]LrtY DIBTAICT April 28,2005 Jobe M.Anton Boxer&Gerson 300 Frank K Ogawa plana,Suite 500 Oakland,CA 94612 RE: EBMM Claim No.041270 NOTICE OF RFJEL71ON OF CLAIM O£ 14larllu Angel,iad#vldually wtd as guardian ad Meru for Metz!°Yaml Hernandmt and Twiiim Hernandez Dated:April 29,200S Recvindt May 2,2005 Notice is hereby given that the claim that you presented to the Board of Directors of East Bay Municipal Utility District has been rejected in Its entirety on ibis daw— In compliance,vuith Government Cale Section 913,the following is quoted for YOM ur "WWAP.MG" .`• "Subject to certain exceptions,you have only six(6)mtortths from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code Section 945.6" "You may seek the advice of an attorney of ygur choice in connection with this matter. If you desire to consult as atter cye you should do so imutediattly." 7f you have additional questions,you may reach me at(510)287-0167. Rick Majors Risk Management Assistant Ex1191T f� DEGZ.ARATION OF SERVICE BYM State of California Comity of Alameda I am employed in the County ofAlameda,State of Califon ia. I am over the age of 18 and not a party to the above-n itled cause. My business address is: P.O.Box 24055 Oakland,CA 94623-1055 I atn familiar with the practice of Bast Bay Municipal Utility District for collection,the application of appropriate postage and processing of eorrvWndence ft mailing with the United States Postal Service• Under that practice,correspondence is deposited with the United States Postal Service the same day it is submitted for ming. I served the foregoing document,Notice of.Refecdon of Chdo,by placing a true copy thereof for collection and mailing,in the course of ordinary business practice,with other correspondence of East Bay Mtmicipal Utility District,located at 37511"Street, Oakland,CA 94807.on May 2,2005,enclosed in a sealed envelope,with the postage thereafter properly applied and fully prepaid,addressed as follows: John M.Anton Boxer&Gerson 300 Pf"k a 09WO Plaza Sade S00 Oakland,CA 94612 I declare m dler penalty of perjury that the foregoing is true and Correct. Executed this."day of May,2009,at Oaklat4 Calittbmia. `. Rick Majors Print or Type Name Signatm . 1 JOHN M.ANTON, State Bar No.54888 WILLIAM E.LOMBARDINI,State Bar No. 191464 BOXER&GERSON,LLP 300 Frank H.Ogawa Plaza Rotunda Building,Suite 500 Oakland, California 94612 Telephone: 510)835-8870 Facsimile: (510)835-0415 ANTONIO RUIZ,State Bar No. 155659 10-14-05 CONCEPa6N E. LOZANO-BATISTA,State Bar No.2272: W EINBERG, ROGER&ROSENFELD,P.C. A Professional Corporation .Tpl(RE,€I. 'tHE:GQURT 1001 Marina Village Parkway,Suite 200 OF Alameda,CA 94501-1091 #Gt1t1 RACOST4k- Ta+ Z Telephone:(510)337-1001 Facsimile:(510)337-1023 :-Br &HARBREM,DEPUTYMM Attorneys for Madlu Angeles, Metzi Yarel Hernandez, Emilin Hernandez, Juana Llilan Arias, Adrian Cristina nuul lyuGL ry imp, n t;Vot ui a Stephanie Rodriguez-Arias and Alicia Rodriguez SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF CONTRA COSTA GAS PIPELINE EXPLOSION CASES JCCP COUNCIL COORDINATION PROCEEDING No.4433 Coordinated Actions: ) KNOX,et al.v.MOUNTAIN CASCADE,at al. ) FIRST AMENDED COMPLAINT FOR (Contra Costa Sup.CL Case No.C 05-00281) ) PERSONAL INJURIES AND WRONGFUL FARLEY v.MOUNTAIN CASCADE,et al. ) DEATH (Contra Costa Sup.CL Case No.C 05-01573) REYES,et al.v.EAST BAY MUNICIPAL ) ARIAS,et al.v.KINDER MORGAN,at al. UTILITY DISTRICT,at al. ) (Alameda Sup.Ct.Case No.RG-05-195567) (Alameda Sup.Ct.Case No.RG-05-207720) ) ARIAS,at al.v.KINDER MORGAN,et al. ) (Alameda Sup.CL Case No.RG-05-195567) ) ANGELES,at al.v.KINDER MORGAN,et al. ) (Alameda Sup.CL Case No.RG-05-195680) 'j6 kv 000/0'1? 2 JUANA LILIAN ARIAS,individually and FIRST AMENDED COMPLAINT FOR as guardian ad!item for ADRIANA PERSONAL INJURIES AND CRISTINA RODRIGUEZ ARIAS and WRONGFUL DEATH ALEGANDRA STEPHANIE RODRIGUEZ-ARIAS,minors,and ALICIA RODRIGUEZ, ) Plaintiffs, vs. KINDER MORGAN, INCORPORATED; KINDER MORGAN ENERGY PARTNERS LP; MOUNTAIN CASCADE, INC.;SFPP,L.P., COMFORCE TECHNICAL SERVICES, INC,EAST BAY MUNICIPAL UTILITY DISTRICT(EBMUD),CAROLLO ENGINEERS P.C.,DOES 3-19, DOES 21-30 and MARIEL HERNANDEZ, Defendants. . 3 Plaintiffs, by and through their attomeys Boxer&Gerson, LLP,and Weinberg, Roger&Rosenfeld,P.C.,allege as follows: GENERAL ALLEGATIONS 1. Defendant Mountain Cascade, Inc.is a corporation organized under and by virtue of the laws of the State of California with its principal place of business in the County of Alameda. 2. The events in issue occurred during the performance of a contract entered into in the County of Alameda. 3. East Bay Municipal Utility District(EBMUD;formerly DOE 20)is a publicly-owned utility formed under the Municipal Utility District laws of the State of California with its headquarters in the City of Oakland, County of Alameda. A timely claim was filed with EBMUD on April 29,2005. A true and correct copy of that claim is attached as Exhibit A. Said claim was denied by EBMUD by letter of May 2,2005. A true and correct copy of that letter is attached as Exhibit B. 4. The events in issue occurred on or about Tuesday, November 9,2004, in and adjacent to a 14 foot deep trench within the South Broadway Easement in a residential neighborhood between Newell Avenue and Rudgear Road,in the City of Walnut Creek,County of Contra Costa,State of California. 5. In and adjacent to the 14-foot trench,construction workers were building a 69-inch water pipeline, known as the Northern Pipeline,to transport water from Walnut Creek to San Ramon. 6. East Bay Municipal Utility Districts general contract was initially awarded on or about September 24,2002,to Modem Continental Construction of Cambridge; Massachusetts. On or about May 28,2004, East Bay Municipal Utility District issued a "Notice of Default Termination"to Modern Continental Construction. 7. On or about August 10,2004, East Bay Municipal Utility District awarded its general contract to Mountain Cascade, Inc. ( 8. Mountain Cascade, Inc.,in compliance with the provisions of the F 4 Subletting and Subcontracting Fair Practices Act of the Public Contract Code of the State of California;listed and employed Matamoros Pipeline,Inc.to perform welding on the 69-inch Northern pipeline. 9. The route of the 694nch Northern pipeline was to be generally parallel to, east of and above a 104nch petroleum products pipeline. 10. On or about Tuesday,November 9,2004 Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP and SFPP, LP(formerly Doe 1)owned and operated the 104nch petroleum products pipeline for purposes of transporting gasoline approximately 60 miles from Concord to San Jose. 11. Kinder Morgan, Incorporated is the general partner of Kinder Morgan Energy Partners LP. Kinder Morgan Energy Partners LP owns all assets of and controls SFPP,LP. SFPP,LP in tum does business as the"Pacific Operations"of Kinder Morgan Energy Partners, LP. 12. Comforce Technical Services, Inc. (formerly DOE 2)is and at all relevant times was a corporation organized pursuant to the laws of the State of Delaware, doing business with the State of California,and provided temporary employees and staffing to take direction from Kinder Morgan, Incorporated, Kinder Morgan Energy Partners, LP,and SFPP,LP. 13. Carolio Engineers P.C.is and at all relevant times was organized pursuant to the laws of the State of Arizona,doing business within the State of California,and providing consulting,design and related engineering services for water and wasterwater treatment facilities, including the Northern Pipeline project in issue. Plaintiffs have as to Carollo Engineers P.C.filed pursuant to Section 411.35 the required Certificate of Merit. 14. The true names and capacities of Defendants Does 3 through 19 and 21 through 30 are unknown to Plaintiffs and joined herein by said fictitious names. Plaintiffs are informed and believe and thereon allege that each said Doe Defendant is . negligently or otherwise legally responsible in some manner for the events and happening herein described,and negligently or otherwise legally caused the injuries and damages claimed,such that piainfiff will amend this complaint to show their true names and capacities when ascertained. 15. Plaintiffs are informed and believe,and thereon allege,that each of the Defendants was,at all times relevant to this action,an agent,servant,employee, 1 partner,joint venturer,and/or alter-ego of the remaining Defendants and/or that �f 5 Defendants'advice or encouragement to act operated as moral support and,in doing the things herein alleged,was acting within the course and scope of that relationship. Plaintiffs are further informed and believe,and thereon allege,that each of the Defendants herein gave consent to, ratified,and/or authorized the acts alleged herein, of each of the remaining Defendants,except as may be hereinafter otherwise specifically alleged. 16. On or about Tuesday, November 9,2004,at about 1:30 p.m.,gasoline escaped from the 10-inch petroleum products pipeline. When it ignited and exploded, several construction workers were injured and five eventually died. 17. Among those who were injured and died was Victor Javier Rodriguez ("Decedent"),an employee of Matamoros Pipeline,Inc. 18. On or about November 9,2004, plaintiff Juana Lilian Arias was the domestic partner of and was dependent upon Victor Javier Rodriguez. 19. Plaintiffs Adriana Cristina Rodriguez Arias,bom September 26,2001,the daughter of Decedent,and Alegadra Stephanie Rodriguez-Arias,bom August 22, 2003,the daughter of Decedent,are the heirs and successors in interest of Decedent. 20. Plaintiff Juana Lilian Arias,mother of Adrian Cristina Rodriguez and Alegadra Stephanie Rodriguez-Arias, is the duly appointed guardian ad litem of Adriana Cristina Rodriguez and Alegadra Stephanie Rodriguez-Arias,minors. 21. Prior to the death of Decedent,Plaintiffs Adrian Cristina Rodriguez and f Alegadra Stephanie Rodriguez-Arias had the right to receive and were dependent on their father for support and maintenance. 22. As a legal result of the negligence and/or other conduct of Defendants, and each of them,legally and/or proximately causing death to Decedent, Plaintiffs have sustained Injuries,damages,and/or losses Including, but not limited to, loss of love, companionship, comfort,affection,society,solace,moral support,physical assistance, financial support,contributions,and services of Decedent, in a sum to be ascertained at the time of trial. 23. As a further and legal result of the negligence and/or other conduct of Defendants,and each of them,legally and/or proximately causing death to Decedent, Plaintiffs have incurred funeral and burial expenses in a sum to be proved at the time of trial,which is the reasonable value of such services. 24. The above General Allegations are incorporated by reference into each of the following causes of action. FIRST CAUSE OF ACTION (Negligence) (By Plaintiffs Against Defendants Kinder Morgan. Incorporated; Kinder Morgan Energy Partners LP;SFPP,LP;Comforce Technical Services, Inc.; and Does 3-19) ( 25. Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners 6 LP, SFPP,LP,..Comforce Technical Services, Inc.and Does 3-19 were engaged in activities including owning,operating,locating,field marking,and monitoring excavation near petroleum products pipelines transporting gasoline,jet fuel,diesel fuel and natural gas liquids. 26. Defendants Kinder Morgan, incorporated,Kinder Morgan Energy Partners LP, SFPP, LP and Does 3-19 were operators of a subsurface installation within the meaning of Government Code§4216. 27. On or about February 2,2003 defendants EBMUD and SFPP,LP entered into a"pipeline inspection agreement"by which upon receiving notice, SFPP, LP agreed to provide pipeline inspection services during EBMUD's construction activities near the Petroleum Products Pipeline,and EBMUD agreed to pay the actual cost of pipeline inspection. 28. Said Defendants,and each.of them,received notification of proposed excavation work in accordance with Government Code§4216.2. 29. Said Defendants,and each of them,undertook but failed to locate and field mark a strip of land not more than 24 inches on either side of the exterior surface of the subsurface installation which may be affected by the excavation,to the extent ( and degree of accuracy that the information is available either in the records of said defendants,and as determined through standard locating techniques other than excavation,and undertook to advise of the location of the operator's subsurface Installations which may be affected by the excavation,in accordance with Government Code§4216 and 4216.3. 30. Said defendants knew such activities create the existence of a high degree of risk of harm to persons,land,and chattels of others,and create the likelihood that such harm that results will be great. 31. At all times herein mentioned,defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners, LP,SFPP, LP, Comforce Technical Services, Inc.and each of them,breached their duty of care to decedent,and were negligent as owners, operators,and entities having retained control of the petroleum products pipeline by, among other things: -Improperly hiring,training,retaining,and supervising their employees, agents, representatives,and independent contractors,including(among others)a contractor known as Comforce Technical Services,Inc.,for the performance of work on the Petroleum Products Pipeline and other work in relation to the Northern Pipeline Project,including but not limited to work.involving the determination of the location of the Petroleum Products Pipeline,data which needed to be ascertained before workers could safely excavate and work in the area of the EBMUD Northern Pipeline and Petroleum Products Pipeline; -Improperly failing to create,obtain,and/or analyze the proper utility maps,plans and drawings showing the accurate location of the Petroleum Products Pipeline,or otherwise failing to properly ascertain the actual location of the Petroleum Products Pipeline with reference to the excavation path,prior to allowing workers to excavate and work in the area of the EBMUD Northern Pipeline and.Petroleum Products Pipeline; i i t l � 7 -Improperly failing to secure accurate information concerning the location of the Petroleum Products Pipeline in the area where.the fire and explosion occurred so that proper marking of the Petroleum Products Pipeline could be made at or near its intersection with the EBMUD .Northern Pipeline; -Improperly failing to obtain the proper permits and other authority to allow for work to be completed in the vicinity of the Petroleum products Pipeline and EBMUD Northern Pipeline; -Improperly failing to locate and field mark the location of the Petroleum Products Pipeline prior to the excavation by workers in the area of the EBMUD Northern Pipeline and Petroleum Products Pipeline in violation of,among other things,Government Code Sections 4216 and 4216.3; -improperly failing to relocate the Petroleum Products Pipeline to a location away from the immediate vicinity of the Northern Pipeline Project and the EBMUD Pipeline,prior to permitting workers on the Project to conduct their duties; *Improperly failing to address the expressed concerns of entities working on the Norther Pipeline Project,or who had worked on the Northern Pipeline Project(including,among others, Modem Continental Construction Co., EBMUD,and DOES 1 to 100,and each of them), regarding the need for properly ascertaining the location of the Petroleum Products Pipeline as related to the location of the EBMUD Northern Pipeline;and failing to properly and appropriately inform and communicate to workers on the Northern Pipeline Project appropriate knowledge and warnings concerning the location of the Petroleum Products Pipeline,and the dangers related thereto which they might encounter, -improperly failing to provide necessary safeguards to EBMUD Northern Pipeline workers so as to prevent breach of the petroleum line during the progress of the work; . i 8 -Improperly allowing the use of power-operated or power-driven excavating or boring equipment within the vicinity of the Petroleum Products connection with the Northern Pipeline Project,without proper safeguards; -Improperly failing to inspect,or to do so as frequently as necessary, the Petroleum Products Pipeline,and the proximity of workers thereto,during the work on the Northam Pipeline Project under circumstances where, through contact with all involved the said defendants knew or should have known that the Petroleum Products Pipeline could be breached or damaged by excavation work for the Northern Pipeline Project; -Improperly failing,through employees including Mike Biggs who was or were on site both the day before this incident and the day it occurred,to inform Mountain Cascade,and others excavating in the immediate area, of the known deviation in the Petroleum Products Pipeline,which brought it in close proximity to the excavation path of the EBMUD Northern Pipeline,and.therefore put workers in immediate danger; -Improperly failing to do all of the above,despite having been informed by entities which previously had perfotmed work at the Northern Pipeline Project site that workers were having difficulty ascertaining the location of the Petroleum Products Pipeline,so that it could be avoided during their excavation;and -improperly failing to do all of the above,despite knowledge that this same Petroleum Products Pipeline had been damaged previously during excavation work,at two different locations thereof. SECOND CAUSE OF ACTION (Unfair Competition) (By Plaintiffs Against Defendants Kinder Morgan, Incorporated; l Kinder Morgan Energy Partners LP;SFPP, LP and Does 3-19) 9 32. Kinder Morgan, Incorporated is one of the largest midstream energy companies in the country,operating more than 35,000 miles of natural gas and products pipeline. 33. Kinder Morgan Energy Partners LP is the largest independent owner/operator of products pipelines in the country,transporting more than two million barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day of natural gas liquids,through more than ten thousand miles of pipelines,of which some 3,850 miles are in its Pacific Operations pipeline system. 34. Kinder Morgan Energy Partners LP is the nation's largest publicly traded pipeline limited partnership in the United States in terms.of market capitalization. 35. Kinder Morgan Energy Partners LP owns a 45%interest in the Cochin `r Pipeline System,a 1900-mile natural gas liquids pipeline operating between Alberta and Ontario in Canada that transverses through seven states in the United States. 36. On July 16,2003,at approximately 5:30 a.m.,the USA portion of the Cochin Pipeline System experienced a rupture and fire at a rural location approximately 75 miles east of Fargo, North Dakota. 37. On July 30,2003,a Kinder Morgan Energy Partners pipeline broke in a Tucson subdivision. Gasoline sprayed more than fifty feet into the air,saturated five homes being built,and contaminated soil and groundwater. 38. On April 29,2004,at approximately 7:00 p.m.,a Kinder Morgan Energy Partners pipeline which transports gasoline,jet fuel,and diesel to Chico and Sacramento,California and to Reno, Nevada,experienced a rupture not discovered until April 30,2004,as a result of which approximately 1,000 barrels or 42,000 gallons of diesel spilled into about 250 acres of Suisun Marsh,among the most important wetlands in Northem California. Criticized for the delayed response,a managing agent of Defendants Kinder Morgan, Incorporated and Kinder Morgan Energy Partners LP replied"You can't cry wolf every time you see an anomaly." 39. On November 22,2004,for the second time in as many months,a 10 pipeline that transports gasoline from Colton and Barstow,California into Las Vegas, Nevada experienced a rupture in a rural area near Baker, California. California Highway Patrol officers on nearby Interstate 15 noticed a strong odor and closed the freeway,which led to discovery of a 50-to-60 foot gasoline vapor geyser. 40. The"Pacific Operations"unit of Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP and SFPP, LP and Does 3-19 has experienced at least 44 accidents since January 1,2003,for which said defendants were required to file a written report under 49 C.F.R.§195.54. At least eight known accidents resulting in releases into the surrounding environment since April 27, 1944 occurred in or near high consequence areas(as defined in 49 C.F.R.§195.450)and/or major transportation corridors. These eight accidents include"a failure on line LS-16 resulting in the release of gasoline that killed five workers in Walnut Creek,California,around November 9,2004." Of these eight accidents,five are attributed to outside force damage (e.g.third parry damage caused by an excavator or other source,caused during construction of the pipeline,etc.) 41. According to the U.S.Department of Transportation's"Pipeline and Hazardous Materials Safety Administration,""the recent accidents indicate a I; widespread failure to adequately detect and address the effects of outside force damage and corrosion. This failure has systemically affected the integrity of the Pacific Operations Unit." 42. According to the U.S.Department of Transportation's"Pipeline and Hazardous Materials Safety Administration," due to the"number and frequency of recent accidents through the Pacific Operations Unit,the repeated environmental consequences of the accidents,the trend of outside fore damage and corrosion,the repeated failure through the use of internal inspection tools to identify potential threats that have resulted in accidents,and the proximity of the majority of the Pacific Operations Unit to high consequence areas and/or major transportation corridors,"the continued operation of said Defendant's Pacific Operations Unit"without corrective measures will be hazardous to life,property and the environment." 43. Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners LP,and Does 1-20 were operators of a subsurface installation within the meaning of Government Code§4216. 44. Said Defendants,and each of them, received notification of proposed excavation work In accordance with Government Code§4216.2. 45. In 2003,Modem Continental Construction determined that another segment of the petroleum products pipeline was approximately 13 feet from where it was marked by Kinder Morgan, incorporated, Kinder Morgan Energy Partners LP,and Does 1-20. 46. Prior to November 9,2004,Kinder Morgan,Incorporated,Kinder Morgan Energy Partners LP,and Does 1-20 received notification of proposed excavation work between pipe stations 100+00 and 101+00. 47. Said Defendants,and each of them,failed to locate and field mark the F, approximate locatidh which may be affected by the excavation,to the extent and f 17 degree of accuracy that the information is available either in the records of the operator as determined through standard locating techniques other than excavation,failed to advise of the location of the operator's subsurface installations which may be affected by the excavation,in accordance with Government Code§4216.3,and/or failed to monitor the progress of the excavation. 48. Defendants Kinder Morgan, Incorporated and Kinder Morgan Energy Partners LP customarily failed to monitor their facilities. 49. On account of inaccuracy in the work of marking and locating pipelines, Defendants in advising excavators of the location of the pipelines which may be affected by the excavation made statements and engaged in conduct which was unlawfully deceptive and misleading to members of the public. 50. Such activities were a substantial factor in directly causing harm to Decedent and Plaintiffs. 51. Such harm to Decedent and Plaintiffs was of the kind that would be anticipated as a result of inaccuracy in the work of,locating,field marking,and advising excavators of the location of petroleum products pipelines transporting gasoline,aviation fuels,and diesel through a residential neighborhood and community. 52. Kinder Morgan,Incorporated,Kinder Morgan Energy Partners LP,and Does 1-20 possessed knowledge and experience in such field of work, and knew or should have known that the work was likely to involve this risk. 53. Defendants Kinder Morgan Incorporated,Kinder Morgan Energy Partners LP, and Does 1-20 thereby engaged in unfair competition,i.e.,in an unlawful, unfair or fraudulent business act or practice within the meaning of Section 17200 of the Business and Professions Code. 111 12 lllll THIRD CAUSE OF ACTION (Strict Liability for Ultrahazardous Activities;CACI 460) (By Plaintiffs Against Defendants Kinder Morgan Incorporated; Kinder Morgan Energy Partners LP; SFPP,LP and Does 3-19) 54. Kinder Morgan, Incorporated is one of the largest midstream energy companies in the country,operating more than 35,000 miles of natural gas and products pipeline. 55. Kinder Morgan Energy Partners LP is the largest independent owner/operator of products pipelines in the country,transporting more than two million barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day of natural gas liquids,through more than ten thousand miles of pipelines,of which some 3,850 miles are in its Pacific pipeline system. 56. Kinder Morgan Energy Partners LP is the nation's largest publicly traded pipeline limited partnership in the United States in terms of market capitalization. 57. Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners LP,SFPP, LP and Does 3-19 were engaged in activities including owning,operating, locating,field marking,and monitoring excavation near petroleum products pipelines transporting gasoline,jet fuel,diesel fuel and natural gas liquids. 58. Such activities create the existence of a high degree of risk of harm to persons, land and chattels of others,create the likelihood that harm that results from it will be great,and are inappropriate to the surrounding residential neighborhoods, schools,and communities where it was carried on;such that their value to such communities is outweighed by their dangerous attributes. 59. Such activities were a substantial factor in causing harm to Decedent and Plaintiffs. 60. Such harm to Decedent and Plaintiffs was of the kind that would be 13 anticipated as a result of the risk created by operating,locating,field marking,and monitoring petroleum products pipelines transporting gasoline,jet fuel,diesel fuel,and natural gas liquids through a residential neighborhood and community. FOURTH CAUSE OF ACTION (Peculiar Risk Doctrine;CAC 3708) (By Plaintiffs Against Defendants Kinder Morgan Incorporated; Kinder Morgan Energy Partners LP;SFPP, LP,Comforce Technical Services,Inc..and Does 3-19) 61. The work of locating, marking,and monitoring excavation near petroleum product pipelines in residential neighborhoods,and of advising excavators of the location of such pipelines which may be affected by the excavation,is likely to involve a special risk of harm to others. 62. Kinder Morgan,Incorporated, Kinder Morgan Energy Partners LP, SFPP, LP and Does 3-19 possessed knowledge and experience in such field of work,and knew or should have known that the work was likely to involve this risk. 63. Comforce Technical Services, Inc.,an independent contractor to which Kinder Morgan Incorporated,Kinder Morgan Energy Partners LP,and Does 3-19 delegated such work,failed to use reasonable care to take specific safety measures appropriate to the danger to avoid this risk. 64. Said Defendants,and each of them,.received notification of proposed excavation work in accordance with Government Code§4216.2. 65. Said Defendants,and each of them,failed to locate and field mark the approximate location which may be affected by the excavation,to the extent and degree of accuracy that the information is available either in the records of the operator as determined through standard locating techniques other than excavation,and failed to advise of the location of the operator's subsurface installations which may be affected by the excavation, in accordance with Government Code§4216.3. 66. Such failure of such independent contractor was a cause of harm to 5 14 Decedent and Plaintiffs. FIFTH CAUSE OF ACTION (Willful Misconduct Causing Physical Harm by Plaintiff Juana Lilian Arias as Guardian ad Litem for the Successors in Interest of Victor Javier Rodriguez, Deceased;Against Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners, LP,SFPP, LP and Does 3-19) 67. Defendants, and each of them,knew that construction workers were excavating a trench and building a 69-inch pipeline to transport water from Walnut Creek to San Ramon, in accordance with a written general contract between East Bay Municipal Utility District and Mountain Cascade,Inc. 68: . Defendants,and each of them,knew that the route of the 69-inch water pipeline was to be generally parallel to,east of and above a 10-inch petroleum products pipeline owned and operated by Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP and/or SFPP, LP for transporting gasoline under high pressure approximately 60 miles from Concord to San Jose. 69. Defendants and each of them were operators of a subsurface installation within the meaning of Government Code§4216. 70. Kinder Morgan, Incorporated is the general partner of Kinder Morgan. Energy Partners,LP. 71. Kinder Morgan Energy Partners LP is the largest independent owner/operator of products pipelines in the country,transporting more than two million barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day of natural gas liquids,through more than ten thousand miles of pipelines,of which some 3,850 miles are in its Pacific Operations pipeline system. 72. Kinder Morgan Energy Partners LP is the nation's largest publicly traded pipeline limited partnership in the United States in terms of market capitalization. 73. Kinder Morgan Energy Partners LP owns a 45%interest in the Cochin Pipeline System,a 1900-mile natural gas liquids pipeline operating between Alberta and Ontario in Canada that transverses through seven states in the United States. 74. On July 16,2003,at approximately 5:30 a.m.,the USA portion of the Cochin Pipeline System experienced a rupture and fire at a rural location approximately 75 miles east of Fargo, North Dakota. 75. On July 30,2003,a Kinder Morgan Energy Partners pipeline broke in a Tucson subdivision. Gasoline sprayed more than fifty feet into the air,saturated five homes being built,and contaminated soil and groundwater. 76. Defendant Kinder Morgan Energy Partner LP's"Pacific Operations Unit" which includes defendant SFPP, LP has experienced at least 44 accidents since January 1,2003 for which said defendants were required to file a written report under C.F.R.§195.54. Of these 44 accidents,at least 14 resulted in releases of more than five barrels of refined petroleum products into the surrounding environment. At least eight known accidents resulting in releases into the surrounding environment have occurred since April 27,2004. All eight of these accidents occurred in or near high consequence areas(as defined in 49 C.F.R.§195.450)and/or major transportation 15 corridors and include: 1. A.failure on line LS-25 resulting in the release of diesel fuel into the Suisun Marsh near Fairfield,California around April 27,2004. 2. A failure on a line between breakout tanks resulting in the release of gasoline into surrounding soil in a high population area in Carson,California around August 3,2004. 3. A failure on line LS-47 resulting in the release of jet fuel into a highly-populated environmentally sensitive area in Martinez, California around November 7,2004. 4. A failure on line LS-16 resulting in the release of gasoline that killed five workers in Walnut Creek,California around November 9, 2004,and is the subject of this action. 5. A failure on the CALNEV line resulting in the release of gasoline close to an environmentally sensitive area near San Bernardino, California around November 22,2004. 6. A failure on line LS42 resulting in the release of jet fuel into the waters of the Oakland Estuary in Oakland, California around February 7,2005. 7. A failure on line LS-12 resulting in the release of gasoline and diesel fuel into Summit Creek,which is connected.to Donner Lake, near a ski resort around Truckee, California that was reported by a skier on April 1,2005. 8. A failure on line LS-17 resulting in the release of gasoline near highways in Fort Bliss Military Reservation in EI Paso,Texas on May 28,2005. 77. Of these eight accidents,five are attributed to outside force damage(e.g. third party damage caused by an excavator or other source,caused during construction of the pipeline,etc.). At least three instances of latent outside force damage went unaddressed by said defendants for an indeterminate period despite internal inspection tool runs conducted by said defendants on the pipelines previous to the accidents. These accidents attributed to outside force damage include the failures on lines LS-47, LS-16,LS-02, LS-12 and the CALNEV line. Approximately 50%of Kinder Morgan Z Energy Partners;LP's reported hazardous liquid pipeline accidents between 1998 and 16 2003 were caused by outside force damage. 78. According to the U.S.Department of Transportation's"Pipeline and Hazardous Materials Safety Administration,"said defendants'recent accidents indicate a"widespread failure to adequately detect and address the effects of outside force damage and corrosion. This failure has systemically affected the integrity of the Pacific Operations Unit." 79. The April 2004 rupture was not discovered until April 30, 2004,as a result of which approximately 1,000 barrels or 42,000 gallons of diesel spilled into about 250 acres of Suisun Marsh,among the most important wetlands in Northern California. Criticized for the delayed response,a managing agent of Defendants Kinder Morgan, Incorporated and Kinder Morgan Energy Partners LP replied"You can't cry wolf every time you see an anomaly." 80. The November 22, 2004 rupture,the second in as many months in a pipeline that transports gasoline from Calton and Barstow, California into Las Vegas. California,was discovered by Highway Patrol officers on nearby interstate 15 who noticed a strong odor and closed the freeway,which in turn led to discovery of a 50-to-60 foot gasoline vapor geyser. Defendants'spokesman Larry Pierce stated"it's not a significant financial impact to the company at all. It's more of an operational issue." 81. Said defendants'"widespread failure to adequately address the effects of outside force damage and corrosion; recent accidents and responses are in accordance with said defendants'business practices and policies established at the level of officers,directors and employees who possess substantial discretionary authority including Richard Kinder and Michael Morgan,that expenses be minimized and profits be maximized with conscious disregard.for the consequences. 82. Defendants,and each of them,knew that East Bay Municipal Utility District's contract with them required compliance with all applicable statutes and occupational and health standards,rules,regulations,and orders. 83. Defendants,and each of them,knew that to guard against extreme risk of injury to persons and property, East Bay Municipal Utility District's contract with its general contractor specified that work along South Broadway is adjacent to a high pressure petroleum pipeline owned by Defendants;that construction activities should be coordinated with Larry Hosler,Manager Pipeline Maintenance, Kinder Morgan, Incorporated;and that the contractor shall notify said defendants and all owners of utilities when his work is in progress. 84. Said Defendants,and each of them,were aware of their responsibility upon notification of proposed excavation work in accordance with Government Code §4216.2,to locate and field mark not more than 24 inches on either side of the exterior surface of subsurface installations which may be affected in accordance with Government Code Sections 4216 and 4216.3. 85. Defendants,and each of them, knew that operating,locating,field marking and excavating near petroleum products pipelines transporting gasoline,jet - t 17 and diesel fuels created the existence of a special, high degree of risk of harm to persons, land and chattels of others, knew the likelihood that harm that results from it will be great,and knew the petroleum products pipeline was inappropriate to the surrounding residential neighborhood,school,and community where it was located. 86. Defendants,and each of them, knew that Matamoros Pipeline, Inc.,their welding subcontractor,and its employees would rely for their safety upon defendant's compliance with statutory,regulatory,and contract terms including but not limited to locating,field marking,and monitoring excavation near the petroleum products pipeline. 87. Defendants,and each of them,knew that East Bay Municipal Utility District's general contract was initially awarded to Modem Continental Construction of f Cambridge,Massachusetts. 88. Defendants,and each of them,knew that in 2003 Modern Continental Construction determined that a segment of the petroleum products pipeline was approximately 13 feet from where it was marked by defendants. 89. Defendants,and each of them,knew that in May 2004 East Bay Municipal Utility District terminated its general contact with Modem Continental in part for working too slowly. 90. Defendants,and each of theca,knew that prior to November 9,2004, Modern Continental Construction objected to termination of its general contract with East Bay Municipal Utility District,expressed concern about the petroleum products pipeline along South Broadway,filed suit for breach of contract,and alleged its delays were due in part to problems with how well the 10-inch petroleum products pipeline was located on general contract documents and plans. 91. Defendants, and each of them,knew that prior to November 9,2004, East Bay Municipal Utility District awarded its general contract to Mountain Cascade, Inc. 92. Defendants,and each of them,knew that Mountain Cascade, Inc. advertised that"we routinely take on rough projects that our competitors shy away from and tum them into profit." ` i t 18 93. Defendants and each of them,knew that Mountain Cascade, Inc. has had two deaths In the last five years,the most recent being in March 2004 when a worker was crushed while unloading pipe. 94. Defendants,and each of them, made to East Bay Municipal Utility District, Decedent's employer Matamoros Pipeline, Inc., Decedent's coworkers, and Decedent, representations of material fact as follows: a. Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP,SFPP, LP and Does 3-19 placed field marking devices so as to represent the location of their petroleum products pipeline; b. Defendants Kinder Morgan,Incorporated, Kinder Morgan Energy Partners, LP,SFPP, LP and Does 3-19 through employees including Mike Biggs and temporary employees including Peter Brooks and Mark Pressley stated to EBMUD,Carlos Rodriguez and Mark Miller and to Mountain Cascade,Shawn Ross and Gene Im and others that field marking devices accurately represented the location of their petroleum products pipeline,that excavators need only follow the field marking devices to avoid conflict with their petroleum products pipeline,and that additional locating or monitoring by said defendants was unnecessary. 95. These representations were in fact false,and the truth was as follows: a. The petroleum products pipeline was not where Kinder Morgan, Incorporated,Kinder.Morgan Energy.partners, LP,SFPP, LP and Does 3-19 represented it to be; b. Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP,SFPP, LP,and Does 3-19,and each of them, had failed to locate and field mark the approximate location which may be affected by the excavation,to the extent and degree of accuracy that the information is available either in their own records or through standard locating techniques other that excavation; c. Defendants,and each of them,for their financial benefit had knowingly failed to employ sufficient trained personnel and knowing employed unfit personnel including Mike Biggs and temporary employees Peter Brooks and Mark Pressley of Comforce Technical Services, Inc.to locate and mark the petroleum products pipeline. d.The exact location of the petroleum products pipeline,not where field marking Indicated it to be,was determinable from records,drawings,and contract documents in the possession of Defendants Kinder Morgan, Incorporated,Kinder Morgan Energy Partners LP,Mountain Cascade, Inc.,SFPP, LP and Does 3-19. e. The records,drawings,and contract documents in the possession of Defendants depicted a bend in the 10"petroleum pipeline between pipe stations 100+00 and 101+00. 96. Defendants, and each of them,authorized and made the representations with the intent t� 19 that the representations be communicated to Decedent's employer,Decedent's coworkers,and Decedent,that the representations induce Decedent's employer, Decedent's coworkers,and Decedent to work and act in justifiable reliance upon the representations,which actions Defendants knew involved an unreasonable risk of physical harm to Decedent's coworkers and Decedent. 97. Decedent's employer,Decedent's coworkers and Decedent received Defendants'misrepresentations,and justifiably relied upon them. 98. Defendants,and each of them, in failing to notify,failing to mark even the approximate location,and failing to determine the exact location of the petroleum products pipeline, before excavating with power-operated or power-driven excavating or boring equipment,acted intentionally.and despicably and with willful and conscious disregard of the safety of workers in the vicinity. 99. Defendants Kinder Morgan,incorporated,Kinder Morgan Energy Partners LP, SFPP, LP and Does 3-19 had advance knowledge of the unfitness of agents and employees, including but not limited to those who placed field marking devices,those who represented that excavators need only follow field marking devices to avoid conflict with the petroleum products pipeline,and those who failed to determine its exact location from records,drawings,contract documents in their possession,or excavation with hand tools,and employed them with conscious disregard for the rights and safety of others. 100. Jensen,defendants'Vice-President of Operations and Engineering, falsely stated following the events in questions"the workers had been provided maps and should have been aware of the fuel pipeline's location." 101. Defendant's press release dated November 10,2004 stated defendants "do not expect this incident will have a significant adverse financial impact,"nor does it appear the incident"will require a major environmental clean-up." 102. Defendants Kinder Morgan, Incorporated,Kinder Morgan Energy Partners LP, SFPP, LP,and Does 3-19,and each of them,through officers,directors and/or managing agents thereby authorized said acts of employees and temporary employees,and thereafter ratified said acts by continuing to employ them,by failure to criticize,censure,terminate,suspend or take other remedial action against them, by press releases, by interfering with attempts by regulatory authorities including but not limited to Cal-OSHA to interview them,and by providing them with legal counsel so as to defend their conduct. 103. The above-described conduct of Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners, LP,SFPP, LP,and Does 3-19,and each of them,which includes intentional disregard of safety standards and acting In a manner calculated to interfere with or deceive regulatory authorities,for Defendants' financial benefit,was despicable and carried on with a willful and conscious disregard for the rights and safety of others. 104. The above-described conduct of Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners, LP,SFPP,LP,and Does 3-19,and each of them,which includes intentional disregard of safety standards and acting in a - manner calculated to stonewall or deceive regulatory authorities,for Defendants' financial benefit,subjected persons to cruel and unjust hardship in conscious disregard for such persons'rights. �� F 20 SIXTH CAUSE OF ACTION (Negligence) (By Plaintiffs Against Defendants EBMUD and Does 21-30) 105. At all times herein mentioned EBMUD was engaged in the business of planning,designing,owning,supervising, controlling and constructing a water supply line called the Northern Pipeline,thereby creating the need for the construction project described herein. 106. At all times herein mentioned EBMUD owed a duty of care to others, including decedent,with regard to the planning,design,ownership,supervision, control, surveying, and construction of the water line and the Project in a safe manner, so as to insure the safety of the public and those working on the Project,including decedent. 107. In planning,designing,owning,supervising,controlling and constructing the Project, EBMUD(among other things)remained in control,concealed hidden dangers, and actively,directly,negligently,and wrongfully acted and/or failed to act as follows: • hired Mountain Cascade, Inc.,and others, to perform the work on the Project; • supervised Mountain Cascade, Inc.,and others including Kinder Morgan Energy Partners,in the performance of the work on the Project; failed to correctly determine the location of the Kinder Pipeline before allowing Mountain Cascade,Inc.,and others,to excavate in the area; • pressured Mountain Cascade, Inc.,and others,to complete the work on the Project in a time frame that was not feasible without endangering the safety of the public and those working on the Project, including Israel Hernandez, deceased; • failed to create,obtain and/or analyze the proper utility maps showing the location of the Kinder Pipeline before allowing Mountain Cascade,and others,to excavate near the Kinder Pipeline and EBMUD Pipeline; • failed to obtain the proper permits and other authority to allow for work to be completed in the vicinity of the Kinder Pipeline by Mountain Cascade,and others; • created a dangerous condition of public property by performing work,or allowing work to be performed on its behalf,on the Project in the immediate vicinity of the Kinder Pipeline as opposed to another location in the City of Walnut Creek where the Kinder Pipeline was not located; 7 • failed to require Kinder Morgan Energy Partners to relocate the Kinder Pipeline to a location away from the immediate vicinity of the Project; 21 • failed to notify Mountain Cascade,and others,of concerns by other entities working on the Project or who worked on the Project(including among others Modem Continental Construction Co.and Kinder Morgan Energy Partners)regarding the location of the Kinder Pipeline to the vicinity of the Project; • .failed to proceed,and require Mountain Cascade and others including Kinder Morgan Energy Partners, L.P.,to proceed,with the work around the Kinder Pipeline through safe and acceptable means; • failed to conduct,and require Mountain Cascade and others including Kinder Morgan Energy Partners to conduct,daily inspections by a competent individual prior to the start of work and as needed throughout the shift for evidence of a situation that could result in a hazardous condition, such as that which resulted in the death of Israel Hernandez,deceased;and • failed to remove,and require Mountain Cascade and others including Kinder Morgan Energy Partners to remove,individuals working on the Project, including Israel Hernandez, deceased,from the hazardous area until necessary precautions had been take to ensure the safety of those individuals,including Israel Hernandez,deceased. SEVENTH CAUSE OF ACTION (Negligence) (By Plaintiffs Against Defendant Mountain Cascade, Inc.and Does 21-30) Defendants Mountain Cascade, Inc.and Does 21-30 occupied and controlled property in which a 14-foot deep trench was being excavated. 108. The property contained a hidden condition or conditions which created an unreasonable risk of harm. 109. As the occupier who controlled the property said defendants knew or should have known about such condition or conditions. 110. As the occupier who controlled the property said defendants failed to make reasonable inspections to discover such condition or conditions. 111. As to the occupier who controlled the property said defendants failed to take reasonable precautions to protect against the harm,or to give adequate warning. to those likely to be injured by the harm. 112. Defendant Mountain Cascade, Inc.and Does 21-30 and each of them was an"excavator"engaged in an "excavation"within the meaning of Government Code§4216. 113. Defendant Mountain Cascade, Inc.and Does 21-30 and each of them failed to contact the appropriate regional notification center at least two working days 22 but not more than fourteen calendar days prior to conducting an excavation in an area which is known or reasonably should be known to contain subsurface installations, in violation of Government Code§4216.2. .114. Defendants Mountain Cascade, Inc.and Does 21-30 and each of them undertook but failed to determine the exact location of subsurface installations in conflict with the excavation by excavating with hand tools within the area of the approximate location of subsurface installations as determined by field marking before using power-operated or power-driven excavating or boring equipment'in violation of Government Code§4216.4. 115. Defendants Mountain Cascade, Inc.and Does 21-30 and each of them failed to verify location of 10"petroleum lines prior to any construction between pipe stations 100+00 and 101+00. 116. An unsafe condition was created by or known to Mountain Cascade, inc. and Does 20-30 and was not a known condition that Plaintiffs' Decedent's employer Matamoros Welding was hired to correct or repair. 117. Mountain Cascade, Inc.and Does 21-30 retained control over safety conditions at the worksite and through their actions or failure to take actions they contributed to death of Decedent and Plaintiffs'injuries. 118. At all times herein mentioned said Defendants,and each of them, undertook for consideration to render services,perform acts,and/or labor and/or safety inspections in the course of which said Defendants knew or reasonably should have known precautions were necessary for the protection of others including Decedent working at said premises. 119.. Said Defendants,and each of them,negligently rendered services, performed acts,failed to furnish labor and reasonable safety inspections, and otherwise failed to exercise reasonable care in said undertaking. 120. Defendants,and each of them,thereby increased the risk of harm to others,including Decedent,who were foreseeably upon said premises. 121. The resulting fire and explosion is the kind of event which ordinarily does not happen unless someone is negligent. 122. The resulting fire and explosion was caused by an agency or instrumentality in the exclusive control of said Defendants and over which said Defendants had the exclusive right of control. 123. The resulting fire and explosion was not due to any voluntary action or contribution on the part of the Plaintiffs'Decedent which was the cause of Plaintiffs' Decedent's injury and death. EIGHTH CAUSE OF ACTION (Willful Misconduct Causing Physical Harm by Plaintiff Juana Lilian Arias as Guardian ad Litem for the Successors In Interest of Victor Javier Rodriguez, Deceased; Against Defendants Mountain Cascade, Inc.and Does 21-30) 124. Defendants,and each of them, knew that construction workers were excavating a trench and building a 694nch pipeline to transport water from.Walnut Creek to San Ramon,in accordance with a written general contract between East Bay Municipal Utility District and Mountain Cascade, Inc. 125. Defendants,and each of them,knew that the route of the 69-inch water pipeline was to be generally parallel to,east of and above a 10-inch petroleum products pipeline owned and operated by Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP and/or SFPP, LP for transporting gasoline under high pressure i l� 23 approximately 60 miles from Concord to San Jose. 126. Defendants,and each of them,knew that East Bay Municipal Utility Districts contract with them required compliance with all applicable statutes and occupational and health standards, rules,regulations,and orders. 127. Defendants,and each of them, knew that to guard against extreme risk of injury to persons and property,East Bay Municipal Utility Districts contract with them specified that work along South Broadway is adjacent to a high pressure petroleum pipeline owned by Defendants;that construction activities should be coordinated with Larry Hosler, Manager Pipeline Maintenance, Kinder Morgan, Incorporated;that they shall notify all owners of utilities when his work is in progress;that they are responsible for having all underground utilities and structures located in advance of excavation;that they shall notify all known owners of underground utilities in the area of proposed work and Underground Service Alert,800-642-2444 at least two working days before the C start of actual excavation;that they shall determine the exact location of existing . utilities whose approximate locations are shown on drawings;that contract drawings depicted a bend in the 10"petroleum pipeline between pipe stations 100+00 and 101+00;that they shall probe carefully to determine that exact location of utility,and hand excavate when necessary to avoid damages;that they shall verify location of 10" petroleum lines prior to any construction between pipe stations 100+00 and 101+00; and that hand excavation is required within 24"on either side of the exterior surface of any underground utility. 128. Said defendants,and each of them,were aware of the responsibility to provide notification of proposed excavation work in accordance with Government Code Section 4216.2 and to determine the exact location of subsurface installations by hand excavating in accordance with Government Code Section.4216.4. 129. Defendants,and each of them,.knew that operating, locating,field marking and excavating near petroleum products pipelines transporting gasoline,jet and diesel fuels created the existence of a special,high degree of risk of harm to persons,land and chattels of others,knew the likelihood that harm that results from it will be great,and knew the petroleum products pipeline was inappropriate to the surrounding residential neighborhood,school,and community where it.was located. 130. Defendants,and each of them,knew that Matamoros Pipeline, Inc.,their welding subcontractor,and its employees would rely for their safety upon defendants compliance with statutory, regulatory,and contract terms including but not limited to locating,field marking,and monitoring excavation near the petroleum products pipeline. 24 131. Defendants,and each of them,knew that East Bay Municipal Utility District's general contract was initially awarded to Modem Continental Construction of Cambridge, Massachusetts. 132. Defendants,and each of them, knew that in 2003 Modem Continental Construction determined that a segment of the petroleum products pipeline was approximately 13 feet from where it was marked by Kinder Morgan, incorporated, Kinder Morgan Energy Partners, LP and SFPP, LP. 133. Defendants,and each of them,.knew that in May 2004 East Bay Municipal Utility District terminated its general contact with Modem Continental in part for working too slowly. 134. Defendants, and each of them,knew that prior to November 9,2004, Modern Continental Construction objected to termination of its general contract with East Bay Municipal Utility District,expressed concern about the petroleum products pipeline along South Broadway,filed suit for breach of contract,and alleged its delays were due in part to problems with how well the 10-inch petroleum products pipeline was located on general contract documents and plans. 135. Defendants,and each of them,knew that prior to November 9,2004,East Bay Municipal Utility District awarded its general contract to them. 136. Defendant Mountain Cascade, Inc.was an"excavator"engaged in "excavation"within the meaning of Government Code Section 4216. 137. Defendant Mountain Cascade, Inc.advertised a policy established at the level of officers,directors and supervisory employees who exercise substantial discretionary authority that"we routinely take on rough projects that our competitors shy away from and turn them into profit.* 138. Defendant Mountain Cascade, Inc. has experienced two deaths in the last five years,the most recent being in March 2004 when a worker was crushed while unloading pipe,yet knowingly employed upon East Bay Municipal Utility District's's Northern Pipeline project a supervisory employee whose crew was responsible for one such death. 139. Defendants,and each of them,made to East Bay Municipal Utility District, decedent's employer Matamoros Pipeline, Inc.,decedents coworkers, and decedent, representations of material fact as follows: a. Defendants Kinder Morgan,incorporated, Kinder Morgan Energy Partners LP,SFPP, LP and Comforce Technical Services, Inc.placed field marking devices so as to represent the location of their petroleum products pipeline; b. Defendant Mountain Cascade,Inc.and Does 20-30 by the act of using power-operated or power-driven excavating or boring equipment and otherwise, impliedly represented and stated they had by excavating with hand tools determined the exact location of the petroleum products pipeline. 140. Defendant Mountain Cascade, Inc.and its officers,directors and employees including Superintendent Shawn Ross,who exercised substantial discretionary authority, represented or about September 28,2004 and November 2, 2004,to EBMUD and to a representative of the owner of the petroleum products pipeline who pursuant to agreement with EBMUD was monitoring Mountain Cascade, Inc.'s excavation for the protection of workers including decedent,and others,that it i and the person in charge of the power-operated or power-driven excavating or boring 25 equipment were aware of the exact location of the petroleum products pipeline. 141. These representations were in fact false,and the truth was as follows: a. Mountain Cascade, Inc.had knowledge from contract drawings that the petroleum products pipeline was not where Kinder Morgan, Incorporated,Kinder Morgan Energy Partners LP,SFPP, LP and Comforce Technical Services, Inc. represented it to be; b. Mountain Cascade, Inc.had knowledge from contract drawings that Kinder Morgan, Incorporated,Kinder Morgan Energy Partners LP,SFPP, LP and Comforce Technical Services, Inc.,and each of them,had failed to locate and field mark within 24 inches of the exterior of the petroleum products pipeline,or to the extent ` and degree of accuracy that the information is available in their own records; C. The exact location of the petroleum products pipeline had not been determined by excavating with hand tools; d. The records,drawings,and contract documents in the possession of defendants depicted a bend in the 10"petroleum products pipeline between pipe stations 100+00 and 101+00; e_ Mountain Cascade, Inc.and its Superintendent Shawn Ross who exercised substantial discretionary authority considered plans to be"guidelines"and "95%of the time not accurate"and considered it"not a good idea to ask for a re-mark" of a petroleum products pipeline because Mountain Cascade, Inc,would have to stop work for 48 hours at the expense of profit; f. Mountain Cascade, Inc.had not through safety meetings or otherwise advised the person in charge of the power-operated or power-driven excavating or boring equipment of the presence or location of the petroleum products pipeline. 142. When defendants and defendants'Superintendent Shawn Ross,and each of them, made the above representations,said defendants knew them to be false,had no reasonable ground for belleving the representations were true, and knew they had not the knowledge which they professed. 143. Defendants,and each of them,made the representations with the intent that the representations be communicated directly and through third persons to decedent's employer,decedent's co-workers,and decedent to work and act in justifiable reliance upon the representations,which actions defendants knew involved an unreasonable risk of physical harm to decedent's co-workers and decedent. 144. Decedent's employer,decedent's co-workers and decedent received defendants'misrepresentations including defendants' implied representation by using power-operated or power-driven excavating or boring equipment that they were aware of the exact location of the petroleum products pipeline,and justifiably relied upon them. 145. Defendant, in failing to determine the exact location of the petroleum products pipeline,before excavating with power-operated or power-driven excavating or boring equipment,acted intentionally and despicably and with willful and conscious disregard of the safety of workers in the vicinity. 148. Defendant Mountain Cascade, Inc.had advance knowledge of the unfitness of agents and employees,including those whose crews had experienced prior deaths,those who represented that excavators were aware of the location of the petroleum products pipeline,and those who failed to determine its exact location from records,drawings,contract documents in their possession,or excavation with hand i E 26 tools, and employed them with conscious disregard for the rights and safety of others. 147. Defendant Mountain Cascade, Inc.through its officers,directors and/or managing agents'possessing discretionary authority,thereby authorized said acts of employees and thereafter ratified said acts by continuing to employ them,by failure to criticize,censure,terminate,suspend or take other remedial action.against them,by interfering with attempts by regulatory authorities including but not limited to Cal-OSHA to interview them,and by providing them with legal counsel so as to defend their conduct. 148. The above-described conduct of defendant Mountain Cascade, inc. includes intentional disregard of safety standards and acting in-a manner calculated to- interfere with or deceive regulatory authorities,for defendants'financial benefit,was despicable and carried on with willful and conscious disregard for the rights and safety of others. 149. The above-described conduct of defendant Mountain Cascade, Inc., which includes intentional disregard of safety standards enacted for the benefit of employees or subcontractors and acting in a manner calculated to resist efforts of regulatory authorities,for defendants'financial benefit,subjected persons to cruel and unjust hardship in conscious disregard for such persons'rights. 150. Asa proximate result of said conduct, aid reliance thereon,and of the injuries sustained, plaintiffs are entitled to the protection of Civil Code Section 3294 and to an award of exemplary and punitive damages in excess of the jurisdictional minimum of this court. NINTH CAUSE OF ACTION (Plaintiffs, Individually,as against Carollo Engineers, P.C.and DOES 29-30) 151. At all times herein mentioned,defendant Carollo Engineers, P:C.and Does 29-30,and each of them,were engaged in the business of planning and designing the construction Project herein described,and in the course thereof, provided drawings and plans to EBMUD,and others. Because of the proximity of the Petroleum Products Pipeline to the EBMUD Northern Pipeline and the work to be done with regard to the Project,Carollo Engineers, P.C.and Does 29-30 had a duty and undertook plan and design the Project in a safe manner to insure the safety of the public and those working on the Project, including decedent,and to follow applicable rules,regulations and statutes. 152. At all times herein mentioned,Carollo Engineers, P.C.and Does 29-30, and each of them, breached that duty of care and were negligent by,among other things: -improperly preparing and designing the plans,drawings,and maps for the Project under circumstances where they-were each aware of the incursion of the Kinder Pipeline into the Project's path,but still failed to conduct a thorough survey of the conditions of the site so as to incorporate adequate safeguards for Project workers into their plans to deal with predictable hazards; -improperly failing to evaluate the need for re-design and modifications of the Project at the time they,and each of them,became aware of and discovered the proximity and incursion of the Petroleum Products Pipeline into the EBMUD Northern Pipeline Project; -improperly interpreting available field data(including"pot-holing"and related data)and improperly failing to request additional or missing data, S 27 after reviewing the field data as to the proximity of the Petroleum Products Pipeline to the proposed EBMUD Northern Pipeline in the vicinity of the explosion site,putting workers at risk thereby of the fire and explosion which in fact occurred; -Despite knowledge of the extreme hazards posed by the incursion of the Petroleum Products Pipeline into the path of the proposed EBMUD Northern Pipeline, improperly failing to prepare drawings, maps,and plans which effectively warned arid communicated to all persons reasonably retying thereon(including those responsible for excavation in the area)the specific location of the incursion of the Petroleum Products Pipeline into the path of the EBMUD Northern Pipeline. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against Defendants,and each of them, as follows: 1. for general damages in excess of the jurisdictional minimum of this Court; 2. For funeral,burial and incidental expenses according to proof; 3. For loss of support and related economic losses according to proof; 4. For the Second Cause of Action only,for injunctive relief from unlawful business acts and practices; For the Fifth and Eighth Causes of Action only,for damages for the sake of example and by way of punishing the Defendants named therein, pursuant to Civil Code§3294; 6. For prejudgment interest according to law; 7. For costs of this suit;and 8. For such other and further relief as is proper. DATED: ,2005 BOXER&GERSON, LLP By: JOHN M.ANTON Attorneys for Plaintiffs } � X� �d �+ TO.Ead BUYMunlalpcd UYNYMWot JUANA LILIAN ARIAS, indididually and as RbkManagamentSection guardian ad litem for ADRZANA C1iISTINA � P.O.Box 2454 MS 9604 RODRIGUEZ ARIAS and ALEGMRA STEPHANIE dadand,CA 9460-fa39 RWRI-GUEZ..ARIAS,',minors, and ALICIA ROA,EBMUG CLAIM AGAINST j MWOP•CIaMW AWE JUANA LILIAN ARIAS, at al. (See above) 25 HOW ADOM CITY.=1210 NQ 28365 Pacific Street 8a rd, CA 94544 BID-538-7419 MAU49 ADDRESS Of appftabb) CRY.SWI a aP WORK PFtM ML acme samd none PSACE OFOC ENCS VAR OF of a1 On South $roadway (between Newell Ave. and Rudgear Road 11-0-04 1 in Walnut Creek, CA A -rox. 1.2h pa cRcLAISTANCB CF OOCIIRRENCE Nse book aiAo m v nwmmy) �- rr- jLq G ur e• 3 See Attached Exhibit A Up • ��s�rta►a. ...� oeKMnoN OF DAMA6WURYAOM ' e $ At4MWCFCLNM NOM S 0 000.00 0=00 SWPORTW POOLUM ao bML e*na 1%kwokm eh. 6 P0UCeDEPARk4pli(jioppacoUte) OWNER/DR WR OF MMKUM(d applcable) NIA YOUR YOUR MA1� GOLQR h10DEl UC�3d6E NUt t N A A N A NAMES OF ERMUD EMPLOMES WOLVED Of blOwA) 8 Unknown r EBNND UWw--OR E601PN1W MAIC 00LOR Unknown Unknown' Unknown Unknown JOHN N. ANTON, Boxer & Gerson, 300 Fra gawa Plaza, SUIte DOU 9 Oakland, CA 94612, attorneys for Juana ilian Arias 510-885-8870 Don: NOTICE. Faa==#tQ gewnunent Bode shaft 411.1,roe bM 6 ntordhs to no a Qktbtt for deal!;p bd"a or petsonal�►operll. AND sso&bnT,Zef�ePedalCadeprovfde�'E�rrP�lwUAt►drntbdeaaodpntis�dsfordlewar�eeorlotAQY �rstaf+board • 1Gr9W*W&0t1banY6*u*,Wr*tdbWbc=st or offiw awtadrsd 19 v*worpaytbe trans Sgatesne,any Wse or ftuudtdent Cl!l�1.b�.aQOaat�,YQaahel.a' 1f ptNlL�pte e�lor br btEjprl�rppsal la the ooutrlr JaS for a psrtod et sat more Phan oas rte,bra floe vino!sxo..dP�Oreo thepa�d�S1,raDa),orbybol(t snd„brpr&arnnaa and�orby brtpxlsaartetdnt Ste stale prlmeL �� ay a floe otnet elpceedfng tat thoasaod{S1Q,000),orby bash wart�egtd&ta.' i ,smt•aroo i EXHIBIT A ATTACHMENT TO CLAIM AGAINST EBMUD JUANA LIUAN ARIAS, et al. 3. CIRCUMSTANCES OF OCCURRENCE East Bay Municipal Utility District(EBMUD)planned, designed,owned, supervised,controlled,and constructed a public works project known as the Walnut Creek,,San Ramon Valley Improvement Projetl:("project'). The Project involved Installation of a water pipeline("EBMUD Pipeline')•and is mora particularly described at http:/hvww,ebmud/comNvatec s environment!water_supplylcurrentprojedw walnut cree"an ramon _ In or about May or 2004, EBMUD contracted WI h.among others, Mountain- Cascade, Inc.,to complete construction of the Project, Mountain Cascade, ina thereafter subcontracted with Matamoros Welding to,among other things,weld together segments of the EBMUD Pipeline. Matamoros Welding employed Victor Javier Rodriguez,born 8/1311978,as a welder. On November 9,2004.Victor Javier Rodriguez was working within the course and scope of We employment at the Project,welding In the vicinity of the EBMUD Pipeline,which lay In a trench being excavated for the EBMUD Pipeline and following South Broadway between Newell Avenue and Rudgear Road In Walnut Creek, California. Near to w here Victor Javier.Rodriguez was working,a backhoe operator acting within the course and scope of his duties,under the direct supervision and control of EBMUD and Mountain Cascade, inc.,continued to excavate the trench in which the EBMUD Pipeline was being Installed. A buried underground pipeline owned by,among others,Kinder Morgan Energy Partners("Kinder Pipeline")lay immediately adjacent to the EBMUD Pipeline trend. The Kinder Pipeline was at all times an underground utluty transporting flammable material,consisting of gasoline,diesel fuel, or jet fuel. On November 9,2004,at approximatey 1:24 p.m.,the backhoe operator so operated his equipment as to penetrate the Kinder Pipeline,causing to flammable material within to escape. The flammable material Ignited,killing Victor Javier RodddUez. The events are further described at: h#tp_/Avww.ebmud.comwater&ehvh menUwater supply/current pmjectsAvalnuL creep san,�ramon�valieytdefautt(tc#m#�tovember9 1 i i 4. DESCRIPTION OF DAMAGES/iNJURiES/LOSS At tha time of his death on November 9,2004,Vidor Javier Rodriguez was the domestic partner of claimant Juana Lilian Arias,bom 9/6A 079. Victor Javier Rodriguez was the father of claimants Adrian Cristina Rodriguez Arias, born 9/213/2001,and Alegandra Stephanie Rodriguez Arias,born 812112003. He also financially supported his dependent mother,Alicia Rodriguez Claimants assert that In planning,designing,owning,supervising,conilrOiling and constructing the Project,EBMUD(among other things)actively,directly, negligehtly,and wrongfully: ♦ hired Mountain Cascade, Inc.,and others,to perform the work on the Project ♦ supervised Mountain Cascade,Inc.,and others including IGnder Morgan Energy Partners,in the perfomlance of the woik on the Project; t failed to correctly determine the location of the 10nder Pipeline before allowing Mountain Cascade,Inc.,and others,to excavate in the area; 10 ♦ pressured Mountain Cascade,Inc.,and others,to complete the work on the Project in a time frame that was not feasible without endangering the safety of the public and those working on the Project,Including Victor Javier Rodriguez,:deceased; ♦ failed to create,obtain andlor analyze the proper utility maps showing the location of the Kinder Pipeline before allowing Mountain Cascade, and others,to excavate near the Kinder Pipeline and EB14MUD Pipeline; ♦ failed to obtain the proper permits and other authority to allow for work to be completed in the vicinity of the Kinder Pipeline by Mountain Cascade, and others; ♦ created a dangerous condition of public property by performing work,or allowing work to be performed on its behalf,on the Project In the Immediate vicinity of the Kinder Pipeline as opposed to another location in the City of Walnut Creek where the Kinder Pipeline was not located; y failed to require Kinder Morgan Energy Partners to relocate the IQhder Pipeline to a location away from the immediate vicinity of the Project; 2 f i ♦ failed to notify Mountain Cascade,and others,of concerns by other entities working on the Project or who worked on the Project(Including among others Modem Continental Construction Co. and I(inder Morgan Energy Partners)regarding the location of the Kinder Pipeline to the vicinity of the Project; ♦ failed to proceed, and require Mountain Cascade and others inciuding Kinder Morgan Energy Partners, LR,to proceed,with the work around the Knder Pipeline through safe and acceptable means; ♦ failed to.conduct,and require Mountain Cascade and others Including )Crider Morgan Energy Partners to conduct,daily Inspections by a competent individual prior to the start of work and as needed throughout . the shift for evidence of a situation that could result in a hazardous condition, such as that which resulted in the death of Vidor Javier Rodriguez.deceased;and ♦ failed to remove,and require Mountain Cascade and others Including Finder Morgan Energy Partners to remove,Individuals working on the Project,including Victor Javier Rodriguez,deceased,from the hazardous area until necessary precautions had been take to ensure the safety of those Individuals,including Victor Javier Rodriguez,deceased. Claimants assert that EBMUD's negligent wrongful conduct was a substantial factor in bring about personal IrWas to and the death of Victor Javier Rodriguez. Victor Javier Rodriguez's claims for compensatory damages for personal injury survive his death,and are asserted by claimant Juana Lilian Arias. Additionally,claimants Adrian Cristina Rodriguez Arias and Alegandra Stephanie Rodriguez-Arias have a claim for compensatory damages for the wrongful death of Victor Javier RodrfgueL His dependent mother,Alicia Rodriguez,has a claim for compensatory damages as well. Claimants assert all such claims against among others,ESMUO. DATED: April 9 2005 BOXER&OF_RSON,LLP BY. JOHN M.ANTON k Attorneys for Claimants i 3 X��b L+ �. EAST 8AY AWNICIPAL UTILITY DISTRICT April 28,2405 John M.Anton Boxer&Gerson 340 Prank FL Ogawa Plaza,Suite 500 Oakland,CA 94612 � 1 RE: EMM Clah n No.0070 N=CB OF REJECTION OF CLAIM Of: dnana Man Arias,et al. Dated: April 29,2005 Received: May 2,2005 Notice is hereby given that the claim that you presented to the Board of Directors of Bast Bray Municipal Utility MsWct has been=ejected in its eatkety on this date. compliance mwith Govvemment Code Section 913,to following is quoted for your "WARNING" 0 "Subject to certain exceptioM you have only six(6)months from the date this notice was personally delivered©r deposited in dw mail to file a court action on this claim See Gove=ew Code Section 945.6" "You may seek the advice of an attomey of your cbatw in wmection with this matter. If you desire to consult an attorney,you should do so If you have additional questions,you may reach me at(510)287-0167. Sincerely, Rick A adm Risk Management Assistant 1 " 7►l s7wr..avaAAw..G 91807 as.TLL ma w&aaa lA r ir { DECLARATION l?SERVICER BX MAIL State of Calilbmia County of Alameda I am employed in the Cotmty of Alameda,State of Caiifomia. I am over the age of 18 and not a party to the above-entitled hose. My business address is: ; P.O.33ox 24055 Oakland,CA 94623-1055 I Mn fanoiliar with the practice of East Bay Municipal-OWIty District for collection,the application of appropriate postage and processing of correspondence far mailing with tho United States Postal Service. Under that practice,Correspondence is deposited with..the United States Postal Service the same day it is submitted for mailing. I served the foregoing document,Notice of ite-J won ofClaw,.by placing a ttue copy thereof for collection and mailing,in the course of ordinary business practic%with other comspondence of East Bay Mmlicipal Utility District,located at 37511' Street, Oakland,CA 94607,on Afay 2,2603,enclosed in a sealed envelope,with the postage thereafter properly applied and felly prepaid,addressed as follows: Tohn M.Anion Boxer die Gerson 300 Frank,.Ogawa plaza,Suite 500 Oahl=4 C.4 94612 I declare IMft p.Ralty ofperjury that the foregoing is tragi and coated. Executed this 2"d day ofMay,2005,at Oakland,ONotma. Rick Majors Punt or Type Name Signature `s { u 1`AST DAY MUNlC/PAL UTILITY DISTRICT May2,2005 Ross Goldstein,Excess Claims AIGTS bmaace 175 Water Street,2P Floor New York,NY 10038 RE: EMBUD Claim No.04/270 Walnut Creek,CA 11/9/04 Dear Mr.Goldstein: Enclosed is a claim filed by additional claimants,Juana Lilian Arias,et A and Marlin Aageles, in the above refereced file. The claims are for toss sustained in Walnut Creek as a result of your insured's work under contract to East Bay Municipal UtiWDistrict(FBMUD). As previously acImowledged by you and under the terms and conditions of the contract between EBMUD and Mountain Cascade,Mountain Cascade agreed to indemnify,def®nd,and hold harmless EBMUD from claims of this nalm. Therefore.ibis claim is being forwarded to AxGTS,for Mountain Cascade,to handle on behalf of EBMUD. If you have any questions,you may reach me at(510)287-0167. Sincerely. Rick Majors Risk Management Assistant c John M.Anton Boxer&,Gerson 300 Frok H.Ogawa Plaza,Suite 500 Oakland,CA 94612 Bowles&Verna Make Churcbich,AIMS Mountain Cascade 37sFtFVFryrNsr+7EEr.OAn Wo.CA OW aro.MLAM UVX-*E8MW . 2 i 4 982.1 1 TTORNEY OR PARTY WITHOUT ATTORNEY(Name,stale barnumber,aidaddress). FOR COURT USE ONLY { REGORY W. MORENO, SBN 57844 MORENO, BECERRA, GUERRERO & CASILLAS A Professional Law Corporation 3500 West Beverly Boulevard Montebello, California 90640 (�d� TEJ.EPHONENO: (323)725-0917 FAX No.(Optlonalr 11-10-05 . EMAIL ADDRESS(OpdonaQ. ATTORNEY FOR(Nam).PLAINTIFF IGNACIO BECERRA K.TORRE,CLERK OF THE COURT CALIFORNIA NAMEOFCOURT:CONTRA COSTA SUPERIOR COURT SUPERIORCOURTOF TA- COUNTY OF CONTRA COSTA- MARTINEZ STREET ADORESs:7 2 5 COURT STREET BY: C.BRADY.DEPUTY CLERK MAILING ADDRESs:725 COURT STREET cm AND ZIP CODE.MARTINEZ, CA 94553 BRANCH NAMEMARTINEZ COURTHOUSE PLAINTIFF:IGNACIO BECERRA DEFENDANT:KINDER MORGAN ENERGY PARTNERS, L.P.; KINDER MORGAN G.P., INC.; SANTA FE PACIFIC PIPELINE, LP; KINDER MORGAN, INC.; EAST BAY MUNICIPAL UTILITY DISTRICT; CAROLLO ENGINEERS; CAMP, DRESSER AND McKEE, INC. AND COMFORCE ®DOES TO 200 TECHNICAL SERVICES, INC. COMPLAINT—Personal Injury,Property Damage,Wrongful Death AMENDED(Number). Type(check all that apply): 0 (p h,);.MOTOR VEHICLE Q OTHER s eci GT'ATF'Tinr. NEGLIGENCE AND PER LOCAL RULE 5 THIS FX Property Damage = Wrongful Death INTENTIONAL TORT CASE IS ASSIGNED TO 0 Personal Injury. 0 Other.Damages(specify):EXEMPLARY; DEPT 5 STRICT LIABILITY Jurisdiction(check all that apply): ACTION 1S A LIMITED CIVIL CASE CASE NUMBER:rltd C05-02077 Amount demanded 0 does not exceed$10,000 C05-02451 0 exceeds$10,000,but does not exceed$25,000 0 ACTION IS AN UNLIMITED CIViL CASE(exceeds$25,000) JCCP NO. 4433 ACTION IS RECLASSIFIED bythis amended complaint from limited to unlimited {� from unlimited to limited 1. PLAINTIFF(name): IGNACIO BECERRA alleges causes of action against DEFENDANT(name):KINDER MORGAN ENERGY PAR91VYRS, L.P. ; ET AL. 2.This pleading,including attachments and exhibits,consists of the following number of pages: -11 3. Each plaintiff named above is a competent adult a. except plaintiff(name): (i) 0 a corporation qualified to do business in California (2) an unincorporated entity(describe): (3) � a public entity(describe): (4) 0 a minor = an adult (a) Q for whom a guardian or conservator of the estate or a guardian ad Mom has been appointed (b) other(specify): (5) = other(specify): b. = except plaintiff(name). (1) Q a corporation qualified to do business in California (2) [=J an unincorporated entity(describe): (3) E=1 a public anti describe): (4) = a minor an adult (a) for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b) other(specify): (5) = other(specify): [� Information about additional plaintiffs who are not competent adults Is shown In Complaint—Attachment 3. Page t of 3 Form Approved for Optional UseCOMPLAINT --Personal Injury,Property Code of Civil Noced^§425,12 Juddal CouncB of Calllomla Sou 5- sH2.1s11IRev.July 1.2o021 Damage,Wrongful Death SHORT TM-E:BECERRA v. KINDER MORGAN CASE NUMBER: 4. Q Plaintiff(name): Is doing business under the fictitious name(specify): and has complied with the fictitious business name laws. 5. Each defendant named above is a natural person a. = except defendant(name): c. Q except defendant(name): (1) =a business organization,form unknown (1) Q a business organization,form unknown (2) Q a corporation (2) Q a,corporation (3) Q an unincorporated entity(describe): (3) Q an unincorporated entity(describe): (4) Q a public entity(describe): (4) Q a public entity(describe): (5) Q other(specify): (5) Q other(specify): b. Q] except defendant(name): d. Q except defendant(name). (1) Q a business organization,form unknown (1) Q a business organization,fort unknown (2) Q a corporation (2) Q a corporation (3) Q an unincorporated entity(describe): (3) Q an unincorporated entity(describe): (4) Q a public entity(describe): (4) Q a public entity(describe): (5) Q other(spec*). (5) Q other(specify): QX Information about additional defendants who are not natural persons is contained in Complaint—Attachment 5. 6. The true names and capacities of defendants sued as Does are unknown to plaintiff. 7.Q Defendants who are joined pursuant to Code of Civil Procedure section 382 are(names): .8. This court is the proper court because a. Q]at least one defendant now resides in its Jurisdictional area. b. Q]the principal place of business of a defendant corporation or unincorporated association is In its jurisdictional area. c. E�j injury to person or damage to personal property occurred in its jurisdictional area. d. Q]other(specify). 9.[3n-Plaintiff is required to comply with a claims statute,and a. QX]plaintiff has.complied with applicable claims statutes,or b. plaintiff is excused from complying because(specify). 982.1(1)IRev.JWy1.2W21 COMPLAINT Personal Injury, Property Page 2of3 Damage,Wrongful Death SHORT TITLE:BECERRA v. KINDER MORGAN CASE NUMBER: l C 05-02077 10.The following causes of action are attached and the statements above apply to each(each complaint must have one or more causes of action attached): a. Q Motor Vehicle b. QX General Negligence c. XQ intentional Tort 'd.Q Products Liability e.QX Premises Liability . I. XQ Other(specify): STRICT LIABILITY FOR ULTRAHAZARDOUS ACTIVITIES 11. Plaintiff has suffered a. XQ wage loss b. Q loss of use of property c. ® hospital and medical expenses d. ® general damage e.© property damage f. FX I loss of earning capacity g.® other damage(specify): EXEMPLARY DAMAGES, PREJUDGMENT INTEREST AT 10% PER ANNUM ACCORDING TO PROOF 12, Q The damages claimed for wrongful death and the relationships of plaintiff to the deceased are a. Q listed in Complaint—Attachment 12. b. Q as follows: 13.The relief sought in this complaint is within the jurisdiction of this court. 14. PLAINTIFF PRAYS for judgment for costs of suit;for such relief as Is fair,just,and equitable;and for a. (1) ® compensatory damages (2) 0 punitive damages b. The amount of damages Is(you must check(1)In cases for personal Injury or wrongful death): (1) ® according to proof (2) Q in the amount of:$ 0.0 0 15. Q The paragraphs of this complaint alleged on information and belief are as follows(speclfyparagraph numbers): Date: NOVEMBER 9, 2 0 0 5 GREGORY W. MORENO ' /S! (TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY) 9111(,)1RSW July 1.20021 COMPLAINT—Personal Injury,Property Page a°t 3 Damage,Wrongful Death MC-025 SHORT TITLE:BECERRA v. KINDER MORGAN CASE NUMBER: 1 ATTACHMENT(Number):5 Page of 7 1 (chis Attachment may be used with any Judicial Council form.) (Add pages as required 2 THE DEFENDANTS HEREIN NAMED CONSIST OF ENTITIES DESCRIBED AS FOLLOWS: 3 a) Defendant EAST BAY MUNICIPAL UTILITY DISTRICT (hereinafter "EBMUD") is, 4 and at all times mentioned herein was, a publicly owned utility formed under the Municipal District Act passed by the California Legislature in 1921. 5 EBMUD maintains its administrative and headquarters' offices and is situated in. the City of Oakland, County of Alameda, State of California. At all times 6 mentioned herein, EBMUD planned, designed, owned, supervised, controlled, ' and constructed a.public works construction project known as the Walnut 7 Creek-San Ramon Valley Improvement Project ("Project, ") which involved the installation of a water pipeline. ("EBMUD Pipeline. ") The route of the EBMUD 8 Pipeline was to be generally parallel to, east of, and above a high-pressure fuel pipeline system (referred to herein as the "Kinder Pipeline") located g in, among other places, the City of Walnut Creek, County of Contra Costa, State of California. The section of the Project and Kinder Pipeline at 10 issue in this complaint was located within downtown Walnut Creek, California in the direct vicinity of business entities, a school, and residences. 11 b) Defendant KINDER MORGAN ENERGY PARTNERS, L.P. (hereinafter "KMEP") is, 12 and at all times mentioned herein was, a limited partnership duly organized and existing under the laws of the State of Delaware, and qualified and (, 13 doing business in the State of California. KMEP is, and at all times relevant herein was, the designer, manufacturer, owner, operator, manager, 14 locator, field marker, monitor, and inspector of a high-pressure fuel pipeline system located in, among other places, the City of Walnut Creek, 15 County of Contra Costa, State of California ("Kinder Pipeline") . KMEP is the largest independent owner/operator of products pipeline in the United 16 States, transporting more than two million barrels a day of gasoline, jet fuel and diesel fuel and up to 7.8 billion cubic feet a day of natural' gas 17 liquids through more than 10,000 miles of pipelines, of which some 3,850 are in its Pacific pipeline system. It is the largest publicly traded pipeline 18 limited partnership in the United States in terms of market capitalization. 19 c) Defendant SANTA FE PACIFIC PIPELINE, LP (hereinafter "SFPP") is, and at all times mentioned herein was,. a limited partnership duly organized and 20 existing under the laws of the State of Delaware, and qualified and doing 21 business in the State of California. SFPP is, and at all times relevant herein was, the designer, manufacturer, owner, .operator, manager, locator, 22 field marker, monitor, and inspector of the Kinder Pipeline. SFPP is an operating partnership and subsidiary limited partnership of KMEP. 23 d) Defendant KINDER MORGAN G.P. , INC. (hereinafter "KMGP") is, and at all 24 times mentioned herein was, a corporation duly organized and existing under the laws of the State of Delaware, and qualified and doing business in the 25 26 *27 (if the Item that this Attachment concems is made under penalty of perjury,all statements In this Attachment are made under penalty of perjury.) Form AApppmvea�"r opd"nal use ATTACHMENT cal.Rules or cam,mle sex Judkiel CamcA of Celllomle MC-M[New July 1,20021 to Judicial Council Form MC-025 SHORT TITLE:BECERRA v. KINDER MORGAN CASE Nuraeen 1 ATTACHMENT(Number).5 Page of (Tuts Attachment may be used with any Judicial Council form.) (Add pages as required) 2 State of California as, among other things, the general partner of KMEP. 3 KMGP, is, among other things, the wholly owned subsidiary of Defendant . KINDER MORGAN, INC. KMGP is, and at all times relevant herein was, the 4 designer; manufacturer, owner, operator, manager, locator, field marker, monitor, and inspector of the Kinder Pipeline. 5 e) Defendant KINDER MORGAN, INC. (hereinafter "KMI") is, and at all times 6 mentioned herein was, a corporation duly organized and existing under the laws of the State of Texas, and qualified and doing business in the State of 7 California. KMGP is the wholly-owned subsidiary of KMI. KMI is, and at all times relevant herein was, the designer, manufacturer, owner, operator, 8 manager, locator, field marker, monitor, .and inspector of the Kinder Pipeline. KMI is one of the largest mid-stream energy companies in the 9 United States, owning and/or operating more than 35,000 miles of natural gas and products pipeline. State of California. KMGP is the wholly-owned 10 subsidiary of KMI. KMI is, and at all times relevant herein was, the designer, manufacturer, owner, operator, manager, locator, field marker, 11 monitor, and inspector of the Kinder Pipeline. KMI is one of the largest mid- stream energy companies in the United States, owning and/or operating more 12 than 35,000 miles of natural gas and products pipeline. 13 f) Defendant COMFORCE TECHNICAL SERVICES, INC. (hereinafter "COMFORCEr') is, and at all times herein mentioned was, a corporation duly organized and 14 existing under the laws of the State of Delaware, and qualified to do business in the State of California. COMFORCE is a provider of contingent 15 staffing, information technology, consulting and human resource outsourcing solutions. COMFORCE provided temporary staffing of pipeline construction 16 inspectors to and was hired by, among others, KMEP,_ SFPP, KMGP, and KMI, with respect to the Project and Kinder Pipeline. 17 18 g) Defendant CAMP, DRESSER and McKEE, INC. (hereinafter "CDM") is, and at all times herein mentioned was, a corporation organized and existing under 19 the laws .of the State of Massachusetts, and qualified to do business in the State of California. CDM entered into a contract with, among others, EBMUD to, among other things, provide consulting, design and related engineering 20 services for the Project. CDM then entered into a subcontract with CAROLLO 21 ENGINEERS to, among other things, provide consulting, design, and related engineering services for the portion of the project at issue in this 22 lawsuit. Plaintiffs have filed the required certificate of merit pursuant to Code of Civil Procedure section 411.35. 23 h) Defendant CAROLLO ENGINEERS (hereinafter "CAROLLO") is, and at all times 24 herein mentioned was, a professional corporation organized and existing under the laws of the State of Arizona, and qualified to do business in the 25 State of California. CAROLLO entered into a subcontract agreement with CDM 26 27 (if the-item that this Attachment concerns is made under penalty of perjury,all statements In this Attachment are made under penalty of perjury.) F—A p—dforOptional Use ATTACHMENT Cal.Woo ofCour4ale9&2 J.MGG wc"�l of 1,2Ma to Judicial Council Form AAC-0?5 New July t,20021 MC-025 SHORT TITLE:$ECERRA V. KINDER MORGAN case NUMBER 1 ATTACHMENT(Number):5 Page of (This Attachment may be used with any Judicial Council form.) (Add pages as required) 2 to, among other things, provide consulting, design and related engineering 3 services for the Project, the portion of which is at issue in this lawsuit. Plaintiffs have filed the required certificate of merit pursuant to Code of 4 Civil Procedure section 411.35. 5 The true names or capacities, whether individual, corporate, associate or otherwise of Defendant DOES 1-200, inclusive, are unknown to Plaintiff who 6 therefore sue said Defendants by such fictitious names. Plaintiff is informed and believes and thereon alleges that each of the Defendants 7 designated herein as DOE is negligently and legally responsible in some manner for the events and happenings herein referred to, and negligently 8 caused injuries and damges thereby proximately to Plaintiff as herein alleged. 9 Plaintiff is informed and believes and on that basis alleges that at all 10 times mentioned herein, each of the defendants was the agent and employee of each of the remaining defendants, and in doing the things alleged in this 11 Complaint, was acting within the course and scope of this agency and employment, with the knowledge, approval, consent.and ratification of each 12 of the remaining defendants, and therefore each of the defendants is responsible, under the doctrine of respondeat superior, for the acts and (*13 omissions alleged herein, including but not limited to, the failure to properly identify, locate, mark and otherwise protect the subject gas 14 pipeline from inadvertent breach. 15 Plaintiff is informed and believes, and thereon alleges, that at all times relevant, there exists, and has existed, a unity of interest and ownership 16 between KMEP, SFPP, KMGP and KMI (hereinafter, collectively referred to as "the KM Defendants") , and DOES 1 to 200, and each of them, such that any 17 individuality and separateness between the entities has ceased to exist. Upon information and belief, KMEP is the alter ego of KMGP, SFPP, KMI, and 18 DOES 1 to 200, and each of them. Upon information and belief., SFPP is the 19 alter ego of KMEP, KMGP, KMI, and DOES 1 to 200, and each of them. Upon information and belief, KMGP is the alter ego of KMI, and DOES 1 to 200. Among other things, (a) KMEP was and is completely controlled, dominated, 20 managed and operated by KMGP and KMI, and DOES 1 to 200, and each of them, 21 (b) SFPP was. and is completely controlled, dominated, managed and operated by KMEP, KMGP, KMI and DOES 1 to 200, and each of them, (c) KMGP was and is 22 completely controlled, dominated, managed and operated by KMI, and DOES 1 to 200, and each of them, (d) KMEP, SFPP, KMGP, KMI and DOES 1 to 200, and each of them, have permitted assets to be transferred between themselves without 23 adequate consideration, (e) KMEP, SFPP, KMGP, KMI and DOES .1 to 200, and 24 each of them, have disguised corporate profits in order to evade liability and the payment of judgments, and (f) KMEP, SFPP, KMGP, KMI, and DOES 1 to 25 200, and each of them, was and is inadequately capitalized. Adherence to the 26 7 (if the item that this Attachment concerns is made under penalty of perjury,all statements in this Attachment are made under penalty of perjury.) Fon,Appmvea for Optional use ATTACHMENT cel.Rules or coun,nos ser Judicial council of California MC-M[New July 1,2021 to Judicial Council Form MC-025 SHORT TITLE:BECERRA v. KINDER MORGAN CASE NUMBER: 1 ATTACHMENT(Number):5 Page 7 a t (This Attachment may be used with any Judicial Council form.) (Add pages as required) 2 fiction of the separate existence of KMEP, SFPP, KMGP, KMI and-DOES 1 to 3 300, and each of them, would permit an abuse of the corporate privilege and would, sanction fraud or promote injustice because the entities, and each of 4 them, used in bad faith for the purpose of evading liability and as a means of allowing the other entities, and each of them, to profit from their 5 control and manipulation free from the claims of Plaintiff. 6 7 8 9 10 11 12 !�13 14 15 16 17 18 19 20 21 22 23 24 25 26 1027 (if the item that this Attachment concerns is made under penalty of penury,all statements in this Attachment are made under penalty of perjury.) Form Approved for Opdone!use ATTACHMENT Cal.Rules of cow,nAe 982 Judfclel COLMIC11INewJ July lom1 to Judicial Council Form MC-025 INeW July 1.2002) 7SHORT TITLE: ME NUMBM BECERRA v. KINDER MORGAN FIRST CAUSE OF ACTION-General Negligence Page (numter) ATTACHMENT TO ®Complaint Cross-Complaint (Use a separate cause of action form for each cause of action.) GN-1. Plaintiff(name): IGNACIO BECERRA alleges that defendant(name): KINDER MORGAN ENERGY PARTNERS, L.P. ; KINDER MORGAN G.P. , INC. ; SANTA FE PACIFIC PIPELINE, LP; KINDER MORGAN, INC. (HEREINAFTER COLLECTIVELY REFERRED TO AS THE KM DEENDANTS) [XI Does I to ?.on _ was the legal(proximate)cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to plaintiff on(date): NOVEMBER 9, 2004 AT 1:30 P.M. et(place): WALNUT CREEK, CALIFORNIA (descrlpdon of reasons for flabli/40- SEE ATTACHMENT ENTITLED "FIRST CAUSE OF ACTION" f� i Form Approved by the Jumdel Cwmdl of callfomla CAUSE OF ACTION-General Negligence cCP425.12 Effecdve January 1.1982 Soil P Rule 902.1(3) [� Optional Farm 1 FIRST CAUSE OF ACTION 2 (As against the KM Defendants and DOES 1 to 200) 3 Description of Reasons for Liability: 4 First incorporating the allegations set forth in the pre-printed portion of this Complaint, 5 including,but not limited to,any and all attachments thereof,Plaintiff IGNACIO 13ECERRA 6 further alleges: 7 8 1. At all times herein mentioned,various entities,including the defendants herein and 9 others,were engaged in construction of a water supply line(hereafter the"EBMUD 10 Pipeline"). 11 2• At all times herein mentioned,Plaintiff IGNACIO BECERRA was an employee of 12 Mountain Cascade,Inc.(MCI),and was engaged in activities on MCI's behalf that 13 involved excavation for the construction of the EBMUD Pipeline. 14 3. On November 9,2004, an excavator being used in the EBMUD Pipeline construction 15 activities punctured a high pressure petroleum line owned by KM Defendants, 16 (hereafter,the"Kinder Pipeline");this caused petroleum to be released into the pipe 17 trench in and around which various persons,including Plaintiff,were working. 18 4. The released petroleum was ignited by welding activities of workers for Matamoros 19 Pipelines,Inc. (Matamoros),a welding subcontractor,which resulted in an explosion 20 and fire, seriously injuring Plaintiff IGNACIO BECERRA,among others. 21 5. At all times herein mentioned,the KM Defendants,and DOES 1 to 200,and each of 22 them,breached their duty of due care to Plaintiff IGNACIO BECERRA,and were 23 negligent as owners,operators,supervisors,surveyors and entities having retained 24 control of the Kinder pipeline by,among other things: 25 a. Improperly hiring,training,retaining,and supervising their employees, 26 agents,representatives,and independent contractors,including(among others) 27 a contractor known as Comforce Technical Services,Inc. (COMFORCE),for 28 the performance of work on the Kinder Pipeline and other work in relation to Complaint Ignacio Becerra v Kinder Morgan Energy Parmers,L.P.,et al. I the Project,including but not limited to work involving the determination of 2 the location of the Kinder Pipeline,data which needed to be ascertained 3 before workers could safely excavate and work in the area of the EBMUD 4 Pipeline and Kinder Pipeline; 5 b. Improperly failing to.create,obtain,and/or analyze the proper utility maps, 6 plans and drawings showing the accurate location of the Kinder Pipeline,or 7 otherwise failing to properly ascertain the actual location of the Kinder 8 Pipeline with reference to the excavation path,prior to allowing workers to 9 excavate and work in the area of the EBMUD Pipeline and Kinder Pipeline; 10 c. Improperly failing to secure accurate information concerning the location of 11 the Kinder Pipeline in the area where the fire and explosion occurred so that 12 proper marking of the Kinder Pipeline could be made at or near its 13 intersection with the EBMUD Pipeline. 14 d. Improperly failing to obtain the proper permits and other authority to allow fo 15 work to be completed in the vicinity of the Kinder Pipeline and EBMUD 16 Pipeline; 17 e. Improperly failing to locate and field mark the location of the Kinder Pipeline 18 prior,to the excavation by workers in the area of the EBMUD Pipeline and 19 Kinder-Pipeline,in violation of,among other things,Government Code 20 Section 4216.3; 21 f. Improperly failing to relocate the Kinder Pipeline to a location away from the 22 immediate vicinity of the Project and the EBMUD Pipeline,prior to 23 permitting workers on the Project to conduct their duties; 24 g. Improperly failing to address the expressed concerns of entities working on 25 the Project,or who had worked on the Project(including,among others, 26 Modem Continental Construction Co.,EBMUD,and DOES 1 to 200,and each 27 of them),regarding the need for properly ascertaining the location of the 28 Kinder Pipeline as related to the location of the EBMUD Pipeline;and failing i Complaint .. Ignacio Becerra v Binder Morgan Eneigy Partners,L.P.,et al. E� I to properly and appropriately inform and communicate to workers on the 2 Project appropriate knowledge and warnings concerning the location of the 3 Kinder Pipeline,and the dangers related thereto which they might encounter, 4 h. Improperly failing to provide necessary safeguards to EBMUD Pipeline 5 workers so as to prevent breach of the petroleum line during the progress of 6 the work; 7 i. Improperly entering into a mutual agreement with MCI,EBMUD and DOES 8 1 to 200,and each of them,allowing the use of power-operated or power- 9 driven excavating or boring equipment within the vicinity of the Kinder 10 Pipeline in connection with the Project,without proper safeguards; I 1 j. Improperly failing to inspect,or to do so as frequently as necessary,the 12 Kinder Pipeline,and the proximity of workers thereto,during work on the 13 Project under circumstances where,through contact with all involved in the 14 Project,the KM defendants knew or should have known that the Kinder 15 Pipeline could be breached or damaged by excavation work for the Project; 16 k. Improperly failing,through employee Mike Briggs who was on site both the 17 day before this incident and the day it occurred,to inform MCI,and others 18 excavating in the immediate.area,of the known deviation in the Kinder 19 Pipeline,which brought it in close proximity to the excavation path of the 20 EBMUD Pipeline,and therefore put workers in immediate danger; 21 1. Improperly failing to do all of the above,despite having been informed by 22 entities which previously had performed work at the Project site that workers 23 were having difficulty ascertaining the location of the Kinder Pipeline,so that 24 it could be avoided during their excavation;and 25 m. Improperly failing to do all of the above,despite knowledge that this same 26 Kinder Pipeline had been damaged previously during excavation work,at two 27 different locations thereof. 28 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al. 1 6. The tortious conduct of the KM Defendants,and DOES 1 to 200;inclusive,and each 2 of them,alleged above,was,among other things,negligent,careless,reckless,grossly 3 negligent and/or despicable conduct being carried on by the KM Defendants, and 4 DOES I to 200,inclusive and each of them,with a willful and conscious disregard of 5 the rights and/or safety of others,including but not limited to Plaintiff IGNACIO 6 BECERRA. Among other things;the KM Defendants,and DOES 1 to 200,inclusive, 7 and each of them,knew of the probable dangerous consequences of its conduct and 8 willfully and deliberately failed to avoid those consequences,which resulted in 9 serious personal injury to Plaintiff. 10 7. The ICM Defendants,and DOES I to 200,inclusive, and each of them,knew,or in 11 the exercise of reasonable care should have known,that the conditions constituted an 12 extremely dangerous condition and unreasonable risk of serious injury or death to 13 those who would foreseeably be in the vicinity of or working on the Project,the 14 Kinder Pipeline or EBMUD Pipeline,and that the danger would not be apparent to 15 those persons,such as Plaintiff IGNACIO BECERRA. The KM Defendants,and 16 DOES 1 to 200,inclusive,and each of them,willfully and deliberately failed to avoid 17 these consequences or protect others,such as Plaintiff,from these consequences. 18 Under the circumstances of this case involving excavation next to the high pressure 19 Kinder Pipeline,the conduct of the KM Defendants, and DOES I to 200,inclusive, 20 and each of them,was an extreme departure from the ordinary standard of conduct, 21 and constitutes gross negligence,malice and oppression. 22 8. The above-alleged acts of the KM Defendants, and DOES 1 to 200,inclusive,and 23 each of them,were willful,wanton,malicious,oppressive,despicable and/or 24 fraudulent,and justify an award of punitive damages. At all times mentioned herein, 25 the KM Defendants,their employees,agents,representatives,independent 26 contractors,and DOES 1 to 200,inclusive,and each of them,were guilty of malice, 27 oppression,fraud and/or willful and conscious disregard for the rights of Plaintiff 28 IGNACIO BECERRA. The KM Defendants,their employees,agents, Complaint Ignacio Becerra v.Binder Morgan Energy Partners,L.P.,et at. I representatives,independent contractors,and DOES 1 to 200,inclusive,and each of 2 them,performed work on the Project with a reckless indifference and willful and 3 conscious disregard for the rights of Plaintiff. 4 9. Plaintiff IGNACIO BECERRA is entitled to punitive damages against the KM 5 Defendants,and DOES T to 200,inclusive, and each of them,as corporate defendants 6 because an officer,director or managing agent thereof had advance knowledge of the 7 unfitness of its employees and employed or retained them with a conscious disregard 8 of the rights or safety of others,authorized or ratified the wrongful conduct of its 9 agents,employees,representatives,and independent contractors,who were acting as 10 an officer,director or managing agent of the KM Defendants,and DOES 1 to 200, 11 inclusive,and each of them,and which officer,director or managing agent was 12 personally guilty of oppression,fraud and/or malice. 13 10. The acts herein alleged were consistent with and in conformity with the corporate or ( 14 company policy of the KM Defendants,and DOES I to 200,inclusive,and each of 15 them;and,in the interest of maximizing their business interests,these defendants 16 chose to authorize or ratify the conduct alleged herein. 17 11.As a proximate result of these acts and omissions,certain defendants were also issued 18 OSHA citations including KMEP,EBMUD and Carollo. A copy of the original 19 citations are attached hereto as`Exhibit A".The citations are as 20 follows: 21 A. Company Name:East Bay Municipal Utility District 22 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 23 94596 24 Citation 1 Item 1 Type of Violation: SERIOUS 25 T8CCR 1511(b)SAFETY PRECAUTIONS 26 Date by which violation must be abated: 11/09/2004 27 Proposed penalty: $b750.00 28 l� Complaint . Ignacio Becerra v Binder Morgan Energy Partners,L.P.,el at. l t� 1 Prior to the presence of its employees,the employer shall make a thorough survey of the conditions of the site to determine,so far as practicable,the predictable hazards to 2 employees and the kind and extent of safeguards necessary to prosecute the work in a 3 safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix. 4 5 East Bay Municipal District was aware of the incursion of Kinder Morgan Energy 6 Partners LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility 7 District's Water Line Project as evidenced by maps created by Caroho.Engineers PC and 8 reviewed by East Bay Municipal Utility District.East Bay Municipal Utility District reviewed the pot-holing data derived from the field and failed to address the missing data 9 in the vicinity of the offset of the Kinder Morgan Energy Partners LP's 10-inch High 10 Pressure Petroleum Line in the area of Station 100+15,which resulted in the death of five 11 employees and the serious injury of four other employees.Based upon the pot-holing data 12 review,East Bay Municipal Utility District failed to request additional data regarding the 13 location of the 10-inch High Pressure petroleum Line and its close proximity to the water 14 line project excavation.East Bay Municipal Utility District maintained an oversight 15 presence throughout the Project,providing Surveying Control(Line and Grade)and 16 Quality Assurance(Construction Inspectors). 17 B. Company Name: Carollo Engineers PC 18 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 19 94596 20 Citation 1 Item 1 Type of Violation: SERIOUS 21 TSCCR 151 l(b)SAFETY PRECAUTIONS 22 Date by which violation must be abated: 11/09/2004 23 Proposed penalty:$22500.00 24 Prior to the presence of its employees,the employer shall make a thorough survey of the 25 conditions of the site to determine,so far as practicable,the predictable hazards to 26 employees and the kind and extent of safeguards necessary to prosecute the work in a 27 safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix. 28 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,.et al. l Carollo Engineers PC was aware of the incursion of Kinder Morgan Energy Partners 2 LP's 10-incb High Pressure Petroleum Line into East Bay Municipal Utility District's Walnut Creek project as evidenced by drawings created by Carollo Engineers PC. 3 Carollo Engineers PC failed to evaluate the need for re-design at the time of discovery of 4 the proximity of the two lines. Carollo Engineers PC reviewed the pot-holing data 5 derived from the field data and failed to address the missing data in the vicinity of the 6 offset at Station 100+15 of the Kinder Morgan Energy Partners LP's 10-incb High 7 Pressure Petroleum Line which resulted in the death of g five employees and the serious injury of four other employees. The pot-holing data. 9 review should have generated a request for additional data at the point of the closest 10 conflict. 11 C. Company Name:Kinder Morgan Energy Partners LP 12 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 13 94596 14 Citation 1 Item 1 Type of Violation: SERIOUS WILLFUL 15 TSCCR 1541(b)(1)UNDERGROUND INSTALLATIONS 16 Date by which violation must be abated 11/09/2004 17 Proposed penalty: $70000.00 13 The estimated location of utility installations,such as sewer,telephone, fuel, 19 electric,water lines,or any other underground installations that reasonably may 20 be expected to be encountered during excavation work,shall be determined prior to 21 opening the excavation. 22 Kinder Morgan Energy Partners LP's employees failed to determine by any marking 23 method the estimated location of the 10-inch High Pressure Petroleum Line in the 24 area of Station 100+15 prior to the opening of an excavation to install a waterline 75 which was in close proximity to Kinder Morgan Energy Partners LP's 10-inch High 26 Pressure Petroleum Line. As a result,the 10-inch High Pressure Petroleum Line was 27 beached on November 9,2004 which resulted in the death of five employees and the 28 serious injury of four other employees.Kinder Morgan Energy Partners LP's Complaint Ignacio Becerra v Binder Morgan Energy Partners,L.P.,et at. 1 employees were aware that an unsafe condition existed and failed to assure that the utility was clearly marked which would have resulted in its relocation or other appropriate measures to safeguard employees. 3 4 D. Company Name:Kinder Morgan Energy Partners LP 5 Inspection Site 0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,CA 6 94596 7 Citation 2 Item 1 Type of Violation: SERIOUS WILLFUL 3 TBCCR 1511(b)SAFETY PRECAUTIONS " Date by which violation must be abated: 11/09/2004 9 Proposed penalty;$70000.00 10 11 Prior to the presence of its employees,the employer shall make a thorough 12 survey of the conditions of the site to determine,so far as practicable,the 13 predictable hazards to employees and the kind and extent of safeguards necessary to 14 Prosecute the work in a safe manner in accordance with the relevant parts of Elate A-2-a and b of the-Appendix. 15 16 Kinder Morgan Energy Partners'LP's employees failed to communicate the proximity 17 of their 10-inch High Pressure Petroleum Line in the area of Station 100+15 of the 18 East Bay Municipal Utility District's Walnut Creek Project.Failure to notify and 19 provide safeguards to those involved resulted in the breach of the 10-inch High 20 Pressure Petroleum Line on November 9,2004 which resulted in the death of five 1 employees and the serious injury of four other employees.Kinder Morgan Energy Partners LP's employees were aware that an unsafe condition existed and failed to 22 assure that the utility was clearly marked which would have resulted in its 23 relocation or other appropriate measures to safeguard employees. 24 1)5 WHEREFORE,Plaintiff IGNACIO BECERRA seeks damages for his injuries,including 26 punitive and exemplary damages,as described on page 3 of the Judicial Council form portion of 27 this Complaint,at paragraph 11. 78 Complaint Ignacio Becerra v Kinder Adongan Energy Partners,LP.,et al. I 1 SECOND CAUSE OF ACTION (As against the KM Defendants and DOES 1 to 200) Strict Liability for Ultrahazardous Activities 3 4 Description of Reasons for Liability: 5 First incorporating the allegations set forth in the pre-printed portion of this Complaint, 6 including,but not limited to,any and all attachments thereof,and the allegations set forth in the 7 First Cause of Action thereof,PlaintiffIGNACIO BECERRA further alleges: 8 9 12.At all times herein mentioned,the KM defendants,and DOES I to 200,were engaged 10 in activities including owning,operating,locating, field marking, and monitoring 11 excavation near the Kinder Pipeline located in Walnut Creek,California,as herein 12 described. Said defendants,and each of them,also designed,manufactured,sold, 13 owned,controlled,operated,maintained,inspected,distributed,transported,located, 14 15 field marked,monitored and managed the Kinder Pipeline and ultrahazardous and 16 flammable material contained therein. 17 13.Such activities create the existence of a high degree of risk of harm to persons and 18 property,creating the likelihood that harm resulting from such activities would be 19 20 great;and such activities have dangerous attributes to residential environments which 71 outweigh their value to such communities. 22 14.Such activities were substantial factors in causing harm,particularly serious and 73 permanent personal injury to Plaintiff IGNACIO BECERRA,as herein described. 24 15. Such harm,including serious and permanent personal injury to Plaintiff IGNACIO 25 26 BECERRA,was of the kind that would be anticipated as a result of the risk created 27 by owning,supervising,controlling,operating,managing,locating,field marking,. 28 inspecting and monitoring petroleum products pipelines including the Kinder 10 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et at. 1 Pipeline,and transporting fuels through a residential neighborhood and community, 2 thereby creating such a serious risk of danger that it is justifiable to impose upon the 3 KM Defendants liability without fault. 4 16. The above alleges acts of the KM defendants,and DOES 1 to 200,inclusive,and 5 6 each of them,were willful,wanton,malicious,despicable,oppressive and/or 7 fraudulent, and justify an award of punitive damages. At all times mentioned herein, 8 the KM Defendants,their employees,agents,representatives,independent 9 contractors,and DOES 1 to 200,inclusive,and each of them,were guilty of malice, 10 oppression,fraud,and/or a willful and conscious disregard for the rights of Plaintiff 11 12 IGNCIO BECERRA. Given the dangerous and ultrahazardous nature of the work 13 performed on the Project,the Kinder Pipeline,and the close proximity of the Kinder 14 Pipeline to the EBMUD Pipeline,the KM Defendants,their agents,employees, 15 independent contractors,representatives and DOES 1 to 200, inclusive, and each of 16 them,performed work on the Project with a reckless indifference and willful and 17 1$ conscious disregard for the riff. Tights of Plaintiff. 19 17. Plaintiff IGNCIO BECERRA is entitled to punitive damages against the KM 20 defendants,and DOES 1 to 200,inclusive,and each of them, as corporate defendants 21 because an officer,director or managing agent thereof had advance knowledge of the 22 .unfitness of its employees and employed or retained them with a conscious disregard 23 24 of the rights or safety of others,authorized or ratified the wrongful conduct of its 25 agents,employees,representatives-and independent contractors who were acting as an 26 officer,director or managing agent of the KM defendants,and DOES 1 to 200, 27 28 Complaint Ignacio Becerra x Kinder Morgan Energy Partners,LA,et al. I I inclusive,and each of them,and which officer,director or managing agent was 2 personally guilty of oppression,fraud and/or malice. 3 18.As a proximate result of these acts and omissions,certain defendants were also issued 4 OSHA citations including KMEP,EBMUD and Carollo. A copy of the original 5 citations are attached hereto as"Exhibit A".The citations are as 6 7 follows: 8 A. Company Name:East Bay Municipal Utility District 9 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 10 94596 1 I Citation 1 Item 1 Type of Violation: SERIOUS 12 TBCCR 1511(b)SAFETY PRECAUTIONS 13 Date by which violation must be abated: 11/09/2004 Proposed penalty:$6750.00 14 15 Prior to the presence of its employees,the employer shall make a thorough survey of the 16 conditions of the site to determine,so far as practicable,the predictable hazards to 17 employees and the kind and extent of safeguards necessary to prosecute the work in a 18 safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix. 19 East Bay Municipal District was aware of the incursion of Kinder Morgan Energy 20 Partners LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility 21 District's Water Line Project as evidenced by maps created by Carollo Engineers PC and 22 reviewed by East Bay Municipal Utility District.East Bay Municipal Utility District 23 reviewed the pot-holing data derived from the field and failed to address the missing data 24 in the vicinity of the offset of the Kinder Morgan Energy Partners LP's 10-inch High 75 Pressure Petroleum Line in the area of Station 100+15,which resulted in the death of five 26 employees and the serious injury of four other employees.Based upon the pot-holing data 27 review,East Bay Municipal Utility District failed to request additional data regarding the 28 location of the 10-inch High Pressure petroleum Line and its close proximity to the water line project excavation.East Bay Municipal Utility District maintained an oversight L'OIl1IllRlllt - Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et at: I 1 presence throughout the Project,providing Surveying Control(Line and Grade)and 2 Quality Assurance(Construction Inspectors). 3 B. Company Name:Carollo Engineers PC 4 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 5 94596 6 Citation 1 Item I Type of Violation: SERIOUS 7 TSCCR 1511(b) SAFETY PRECAUTIONS Date by which violation must be abated: 11/09/2004 8 Proposed penalty:$22500.00 9 10 Prior to the presence of its employees,the employer shall make a thorough survey of the 11 conditions of the site to determine,so far as practicable,the predictable hazards to 12 employees and the kind and extent of safeguards necessary to prosecute the work in a 13 safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix. ? 14 Carollo Engineers PC was aware of the incursion of Kinder Morgan Energy Partners 15 LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility District's 16 Walnut Creek project as evidenced by drawings created by Carollo Engineers PC. 17 Carollo Engineers PC failed to evaluate the need for re-design at the time of discovery of 18 the proximity of the two lines.Carollo Engineers PC reviewed the pot-holing data 19 derived from the fielddata and failed to address the missing data in the vicinity of the 20 offset at Station 100+15 of the Kinder Morgan Energy Partners LP's 10-inch High 21 Pressure Petroleum Line which resulted in the death of 22 five employees and the serious injury of four other employees.The pot=holing data review should have generated a request for additional data at the point of the closest 23 conflict. 24 25 C. Company Name:Kinder Morgan Energy Partners LP 26 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 27 94596 Citation I Item I Type of Violation: SERIOUS WILLFUL 28 TSCCR 1541(b)(1)UNDERGROUND INSTALLATIONS i Complaint - Ignaci�Becerra v Kinder Morgan Energy Partners,L.P.,et al. I Date by which violation must be abated 11/09/2004 2 Proposed penalty: $70000.00 . 3 The estimated location of utility installations,such as sewer,telephone,fuel, 4 electric,water lines,or any other underground installations that reasonably may 5 be expected to be encountered during excavation work,shall be determined prior to 6 opening the.excavation. 7 Kinder Morgan Energy Partners LP's employees failed to determine by any marking S method the estimated location of the 10-inch High Pressure Petroleum Line in the 9 area of Station 100+15 prior to the opening of an excavation to install a waterline 10 which was in close proximity to Kinder Morgan Energy Partners LP's 10-inch High 11 Pressure Petroleum Line.As a result,the 10-inch High Pressure Petroleum Line was 12 beached on November 9,2004 which resulted in the death of five employees and the 13 serious injury of four other employees.Kinder Morgan Energy Partners LP's 14 employees were aware that an unsafe condition existed and failed to assure that the 15 utility was clearly marked which would have resulted in its relocation or other 16 appropriate measures to safeguard employees. 17 D. Company Name:Kinder Morgan Energy Partners LP is Inspection Site 0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,CA 19 94596 20 Citation 2 Item 1 Type of Violation:SERIOUS WILLFUL I TB CCR 1511(b)SAFETY PRECAUTIONS 22 Date by which violation must be abated: 11/09/2004 _ .Proposed penalty;$70000.00 23 24 Prior to the presence of its employees,the employer shall make a thorough 25 survey of the conditions of the site to determine,so far as practicable,the 26 predictable hazards to employees and the kind and extent of safeguards necessary to 27 prosecute the work in a safe manner in accordance with the relevant parts of Elate 28 A-2-a and b of the Appendix. Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al. 1 Kinder Morgan Energy Partners LP's employees failed to communicate the proximity of their 10-inch High Pressure Petroleum Line in the area of Station 100+15 of the 2 East Bay Municipal Utility District's Walnut Creek Project.Failure to notify and 3 provide safeguards to those involved resulted in the breach of the 10-inch High 4 Pressure Petroleum Line on November 9,2004 which resulted in the death of five 5 employees and the serious injury of four other employees.Kinder Morgan Energy 6 Partners LP's employees were aware that an unsafe condition existed and failed to 7 assure that the utility was clearly marked which would have resulted in its 8 relocation or other appropriate measures to safeguard employees. 9 10 WHEREFORE,Plaintiff IGNACIO BECERRA seeks damages for his injuries,including 11 punitive and exemplary damages,as described on page 3 of the Judicial Council form portion of 12 this Complaint, at paragraph 11. 13 � 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint Ignacio Becerra v.Binder Nlorgan Energy Partners,L.P.,et A SHORT TITLE: CASE NUMBER BECERRA v. KINDER MORGAN THIRD CAUSE OF ACTION-General Negligence Page a3 (nunt-) ATTACHMENT TO DO Complaint F-lCross-Complaint (Use a separate cause of action form for each cause of action.) GN-1. Plaintiff(name): IGNACIO BECERRA. alleges that defendant(name): COMFORCE TECHNICAL SERVICES, INC. IM Does �_to 2 n n was the legal(proximate)cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to plaintiff on(date): NOVEMBER 9, 2 0 0 4 AT 1:3 0 P.M. at(place): WALNUT CREEK, CALIFORNIA (description of reasons for liability): SEE ATTACHMENT ENTITLED "THIRD CAUSE OF ACTION" i� Form Approved by the Juddalcounciiofcaiilomie CAUSE OF ACTION-General Negligence CCP 46.12 EHedlve January 1,1482 SOUtorn 'Awa 482,1(3) Optlonal Form THIRD CAUSE OF ACTION 1 (As against COMFORCE and DOES 1 to 200) 2 Description of Reasons for Liability- 3 First incorporating the allegations set forth in the pre-printed portion of this Complaint, 4 including,but not limited to,any and all attachments thereof,and the allegations set forth in the 5 First Cause of Action thereof and the Second Cause of Action thereof,Plaintiff IGNACIO 6 BECERRA further alleges: 7 8 19.At all times herein mentioned,in the performance of certain duties at the above- 9 described work site,defendants COMFORCE,and DOES l to 200,had a duty of due 10 care with regard to ownership,supervision,control,surveying,and operating the 11 Kinder Pipeline in a safe and proper manner to insure the safety of the public and 12 those working on the project,including Plaintiff IGNACIO BECERRA,among 13 others, and to follow applicable rules,regulations,and statutes in connection ( 14 therewith. 15 20.At all times herein mentioned,COMFORCE, and DOES 1 to 200, and each of them, 16 were negligent and did breach their duty of due care by,among other things: 17 a. Negligently and carelessly hiring,training,retaining, and supervising their 18 employees,agents,representatives, and independent contractors in the 19 performance of the work on the Kinder Pipeline in relation to the Project, 20 including but not limited to failing to determine the Iocation of the Kinder 21 Pipeline,before allowing workers to excavate and work in the area of the 22 EBMUD Pipeline and Kinder Pipeline; 23 b. Negligently and carelessly failing to create,obtain and/or analyze the proper 24 utility maps,plans and drawings showing the accurate location of the Kinder 25 Pipeline,or otherwise to properly ascertain its location,prior to allowing 26 workers to excavate and work in the area of the EBMUD Pipeline and Kinder 27 Pipeline; 28 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al. J l� I c. Negligently and carelessly failing to obtain the proper permits and other 2 authority to allow for work to be completed in the vicinity of the Kinder 3 Pipeline and EBMUD Pipeline; 4 d. Negligently and carelessly failing to locate and field mark the location of the 5 Kinder Pipeline prior to the excavation by workers in violation of,among 6 other things,Government Code Section 4216.3; 7 e. Negligently and carelessly failing to inspect,or to do so as frequently as 8 necessary,the Kinder Pipeline during work on the Project where,through 9 contact with all involved in the Project,COMFORCE and DOES 1 to 200, 10 and each of them,knew or should have known,that the Kinder Pipeline could 11 be damaged by excavation work for the Project; 12 f. Negligently and carelessly failing to properly use locating equipment in order 13 to locate accurately and mark the Kinder Pipeline; i 14 g. Negligently and carelessly failing to adequately or accurately mark the 15 location of the Kinder Pipeline in a way that identified the location of that 16 portion of it which intersected with the proposed excavation path for the 17 EBMUD pipeline;-and 18 h. Negligently and carelessly failing to secure from the KM Defendants,and 19 their employees,accurate information concerning the location of the Kinder 20 Pipeline in the area where the fire and explosion occurred so that proper 21 marking of the Kinder Pipeline could be made at or near its intersection with 22 the EBMUD Pipeline. 23 21.As a proximate result of these acts and omissions,certain defendants were also issued 74 OSHA citations including KMEP,EBMUD and Carollo. A copy of the original 25 citations is attached hereto as"Exhibit A".The citations are as 26 follows; 27 A. Company Name:East Bay Municipal Utility District 28 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 1 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al. t.� 1 94596 Citation I Item 1 Type of Violation: SERIOUS TSCCR'1511(b) SAFETY PRECAUTIONS 3 Date by which violation must be abated: 11/09/2004 4 Proposed penalty:$6750.00 5 6 Prior to the presence of its employees,the employer shall make a thorough survey of the 7 conditions of the site to determine;so far as practicable,the predictable hazards to 8 employees and the kind and extent of safeguards necessary to prosecute the work in a safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix. 9 10 East Bay Municipal District was aware of the incursion of Kinder Morgan Energy 11 Partners LP's I0-inch High Pressure Petroleum Line into East Bay Municipal Utility 12 District's Water Line Project as evidenced by maps created by Carollo Engineers PC and 13 reviewed by East Bay Municipal Utility District.East Bay Municipal Utility District l 14 reviewed the pot-holing data derived from the field and failed to address the missing data 15 in the vicinity of the offset of the Kinder Morgan Energy Partners LP's 10-inch High 16 Pressure Petroleum Line in the area of Station 100+15,which resulted in the death of five employees and the serious injury of four other employees.Based upon the pot-holing data' 17 review,East Bay Municipal Utility District failed to request additional data regarding the 18 location of the 10-inch High Pressure petroleum Line and its close proximity to the water 19 line project excavation.East Bay Municipal Utility District maintained an oversight 20 presence throughout the Project,providing Surveying.Control(Line and Grade)and 21 Quality Assurance(Construction Inspectors). 22 B. Company Name: Carollo Engineers PC' 23 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 24 94596 25 Citation 1 Item 1 Type of Violation:SERIOUS 26 TSCCR 1511(b)SAFETY PRECAUTIONS 27 Date by which violation must be abated: 11/09/2004 28 Proposed penalty: $22500.00 t Complaint Ignacio Becerra x Kinder Morgan Energy Parhiers,L.P.,et al. I f 1 Prior to the presence of its employees,the employer shall make a thorough survey of the conditions of the site to determine,so far as practicable,the predictable hazards to employees and the kind and extent of safeguards necessary to prosecute the work in a 3 safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix. 4 5 Carollo Engineers PC was aware of the incursion of Kinder Morgan Energy Partners 6 LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility District's 7 Walnut Creek project as evidenced by drawings created by Carollo Engineers PC. 8 Carollo Engineers PC failed to evaluate the need for re-design at the time of discovery of the proximity of the two lines. Carollo Engineers PC reviewed the pot-holing data 9 derived from the field data and failed to address the missing data in the vicinity of the 10 offset at Station 100+15 of the Kinder Morgan Energy Partners LP's 10-inch High 11 Pressure Petroleum Line which resulted in the death of 12 five employees and the serious injury of four other employees.The pot-holing data 13 review should have generated a request for additional data at the point of the closest 14 conflict. 15 C. Company Name:Kinder Morgan Energy Partners LP 16 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 17 94596 18 Citation 1 Item 1 Type of Violation: SERIOUS WILLFUL 19 TSCCR 1541(b)(1)UNDERGROUND INSTALLATIONS 20 Date by which violation must be abated 11/09/2004 21 Proposed penalty:$70000.00 ?2 The estimated location of utility installations,such as sewer,telephone,fuel, 23 electric,water lines,or any other underground installations that reasonably may 24 be expected to be encountered during excavation work,shall be determined prior to �5 opening the excavation. 26 27 Kinder Morgan Energy Partners LP's employees failed to determine by any marking 8 method the estimated location of the 10-inch High Pressure Petroleum Line in the area of Station 100+15 prior to the opening of an excavation to install a waterline Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al. 1 which was in close proximity to Kinder Morgan Energy Partners LP's 10-inch High Pressure Petroleum Line. As a result,the 10-inch High Pressure Petroleum Line was beached on November 9;2004 which resulted in the death of five employees and the 3 serious injury of four other employees.Kinder Morgan Energy Partners LP's 4 employees were aware that an unsafe condition existed and failed to assure that the 5 utility was clearly marked which would have resulted in its relocation or other 6 appropriate measures to safeguard employees. 7 D. Company Name:Kinder Morgan Energy Partners LP 8 Inspection Site 0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,CA 9 94596 10 Citation 2 Item l Type of Violation: SERIOUS WILLFUL 11 TBCCR 1511(b)SAFETY PRECAUTIONS 12 Date by which violation must be abated: 11/09/2004 13 Proposed penalty,$70000.00 14 Prior to the presence of its employees,the employer shall make a thorough 15 survey of the conditions of the site to determine,so far as practicable,the 16 predictable hazards to employees and the kind and extent of safeguards necessary to 17 prosecute the work in a safe manner in accordance with the relevant parts of Elate 18 A-2-a and b of the Appendix. 19 20 Kinder Morgan Energy Partners LP's employees failed to communicate the proximity 71 of their 10-inch High Pressure Petroleum Line in the area of Station 100+15 of the East Bay Municipal Utility District's Walnut Creek Project.Failure to notify and 22 provide safeguards to those involved resulted.in the breach of the 10-inch High 23 Pressure Petroleum Line on November 9,2004 which resulted in the death of five 24 employees and the serious injury of four other employees.Kinder Morgan Energy 2$ Partners LP's employees were aware that an unsafe condition existed and failed to 26 assure that the utility was clearly marked which would have resulted in its 27 relocation or other appropriate measures to safeguard employees. 28 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et at 1 WHEREFORE Plaintiff IGNACIO BECERRA seeks damages for his injuries,as 2 described on page 3 of the Judicial Council form portion of this Complaint,at paragraph 11. 3 4 5 6 7 8 9 la 1I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Complaint Ignacio Becerra a Kinder Morgan Energy Partners,L.P.,et aG l SHORT TITLE: CASE NUMBM* BECERRA v. KINDER MORGAN FOURTHCAUSE OF ACTION-General Negligence Pase (nWt�e� ATTACHMENT TO ®Complaint E]Cross-Complaint (Use a separate cause of action form for each cause of action.) GN-1. Plaintiff(name): IGNACIO BECERRA alleges that defendant(name): EAST BAY MUNICIPAL UTILITY DISTRICT ®Does 1 to 2 n n was the legal(pro)dmate}cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to plaintiff on(date): NOVEMBER 9, 2004 AT 1:30 P.M. at(place): WALNUT CREEK, CALIFORNIA (description of reasons for IiabNiry): SEE ATTACHMENT ENTITLED "FOURTH CAUSE OF ACTION" t� t Form Approved by the JudlelalCMWIofCe6temle CAUSE OF ACTION-General NegligenceCCP425.12 Elleolve January 1.19a2 soh T Ru1e982.1(3) Optional Fong SHORT TITLE: BECERRA v. KINDER MORGAN CASE NUMBER: FOURTH (nixrber) CAUSE OF ACTION-Premises Liability Page 3 t ATTACHMENTTO ®Complaint Cross-Complaint (Use a separate cause of action form for each cause of action.) Prem.L-1. Plaintiff(name): IGNACIO BECERR.A alleges the acts of defendants were the legal(proximate)cause of damages to plaintiff. On(date): NOVEMBER 9, 2005 plaintiff was injured on the following premises in the following fashion(description of premises and circumstances of Injuryr SEE ATTACHMENT ENTITLED "FOURTH CAUSE OF ACTION" Prem.L-2. M Count One-Negligence The defendants who negligently owned, maintained, managed and operated the described premises were(names). 1 ED Does to Prem.L-3. iD Count Two-Willful Failure to Warn [Civil Code section 846] The defendant owners who willfully or maliciously failed to guard or wam against a dangerous condition, use, structure, or activity were (names M Does to Plaintiff, a recreational user, was E]an Invited guest E:] a paying guest. Prem.L-4. ® Count Three-Dangerous Condition of Public Property The defendants who owned public property on which a dangerous condition existed were (names):EAST BAY MUNICIPAL UTILITY DISTRICT ® Does 1 to 200 a. ®The defendant public entity had ® actual En constructive notice of the existence of the dangerous condition in sufficient time prior to the Injury to have corrected it. b. ®The condition was created by employees of the defendant public entity. Prem1--5. a. ®Allegations about Other Defendants The defendants who were the agents and employees of the s other defendants and acted within the scope of the agency were(names). ®Does 1 to 200 b. 171I The defendants who are liable to plaintiffs for other reasons and the reasons for their liability are M described In attachment Prem.L-5.b ED as follows(names): 'Approved by ft CAUSE OF ACTION-Premises Liability CCPQ&12 JutGdal Coundt of Cetiromta O,. E wave Jamrary 1.1992 a7V 1 u� Rde992.1(s) L( P Optional Paan 1 FOURTH.CAUSE OF ACTION (As against EBMUD and DOES 1 to 200) General Negligence/Dangerous Condition of Public Property 3 Description of Reasons for Liability: 4 First incorporating the allegations set forth in the pre-printed portion of this Complaint, S including,but not limited to, any and all attachments thereof,and the allegations set forth in the 6 First Cause of Action thereof,the Second Cause of Action thereof and the Third Cause of Action 7 thereof,Plaintiff IGNACIO BECERRA further alleges: 8 9 22.As heretofore alleged,at all times herein mentioned EBMUD, and DOES 1 to 200, 10 and each of them,were engaged in the business of planning,designing,owning, I1 supervising,maintaining,controlling and constructing a water supply line, called 12 herein the EBMUD Pipeline, thereby creating the need for the construction Project 13 herein described. 14 23.At all times herein mentioned,defendants EBMUD,and DOES 1 to 200,and each of 15 them,owed a duty of due care to others,including Plaintiff,with regard to the 16 planning,design, ownership,supervision,control,surveying, and construction of the 17 water line and the Project in a safe manner,so as to insure the safety of the public and 18 those working on the Project,including Plaintiff IGNACIO BECERRA. 19 24.At all times herein mentioned,EBMUD,though its officers, agents,employees and 20 representatives, and DOES 1 to 200,and each of them,breached said duty of due care 21 by,among other things: 22 a. Negligently and carelessly hiring numerous agents,servants,employees, 23 employers,independent contractors, contractors and/or joint venturers,and 24 each of them,to perform the work on the Project given,among other things, 25 . their poor safety records; 26 .b. Negligently and carelessly supervising and exercising retained control over 27 the various entities performing work at and during the Project; 28 10 Complaint Ignacio Becerra i.Kinder Morgan Energy Partners,L.P.,et aL I I c. Negligently and carelessly failing to correctly determine the location of the 2 Kinder Pipeline before allowing workers for the various entities to excavate in 3 the area of the EBMUD pipeline and the Kinder Pipeline. EBMUD,through 4 its officers, agents,employees and representatives,and DOES 1 to 200,and 5 each of them,so acted or failed to act,even though it was aware of the 6 incursion of the Kinder Pipeline into the project,as evidenced by various 7 maps which had been reviewed by these defendants,along with various data 8 collected in the field which likewise revealed said incursion,and despite 9 having been informed by previous contractors on the Project,who had 10 extreme difficulty locating the Kinder Pipeline in this area,of the dangers of 11 this incursion. Said defendants reviewed the pot-holing data derived from the 17 field and failed to address the missing data in the vicinity of the offset and 13 failed to request additional data; 14 d. Negligently,carelessly and recklessly pressuring and requiring MCI to 15 complete the Project without taking adequate steps to insure the safety-of the 16 public and those working on the Project,including Plaintiff IGNACIO 17 BECERRA. 18 e. Negligently and carelessly failing to create,obtain and/or analyze the proper 19 design maps and field marking data,prior to allowing MCI to excavate near 20 the EBMUD Pipeline and Kinder Pipeline; 21 f Negligently and carelessly failing to obtain the proper permits and other 22 authority to allow for work to be completed by MCI and others,in the vicinity 23 of the Kinder Pipeline and EBMUD Pipeline; 24 g. Creating a dangerous condition of public property by performing work,or 25 allowing work to be performed on its behalf,on the Project in the immediate 26 vicinity of the Kinder Pipeline,as opposed to either insisting upon its -27 relocation or performing the work in another location in the City of Walnut 28 Creek, County of Contra Costa where the Kinder Pipeline was not located; C011:plaint Ignacio Becerra v.Kinder Morgan Energy Partners,LP.,et.at. I h. Having both actual and constructive notice,in sufficient time to cure-the 2 problem but taking no steps to do so,of a dangerous condition of public 3 property arising from allowing work to be performed on the Project in the 4 immediate vicinity of the.Kinder Pipeline; 5 i. Negligently and carelessly failing to require various entities to relocate the 6 Kinder Pipeline to a location away from the immediate vicinity of the 7 EBMUD Pipeline and Project; S j. Negligently and carelessly failing to notify, and communicate to,MCI and 9 others(including those engineering.consultants responsible for designing 10 plans)of concerns by other entities working on the Project,and those who had 11 worked on the project,regarding the location of the Kinder Pipeline as related 12 to proximity to the EBMUD Pipeline and Project; 13 k. Negligently and carelessly failing to halt work unless and until it could assure 14 all work around the Kinder Pipeline and EMBUD Pipeline was being 15 conducted with adequate safeguards and through safe and acceptable means; 16 1. Negligently and carelessly failing to conduct,or requiring entities working on 17 the Project to conduct,daily inspections by a competent individual prior to the 13 start of work, and as needed throughout the shift so as to reasonably ascertain 19 information that could result in finding a dangerous condition,such as that 20 which resulted in the fire and explosion causing serious personal injury to 21 Plaintiff IGNACIO BECERRA; 22 m. Negligently and carelessly failing to remove,or requiring entities working on 23 the Project to remove,individuals working on the Project,including Plaintiff 24 IGNACIO BECERRA,from the dangerous area of the Kinder Pipeline until 25 necessary precautions had been taken to ensure the safety of those individuals; 26 n. Knowing that a prior subcontractor had been extremely concerned that the 27 planned route of piping installation for the water upgrade was dangerously 28 close to a known high pressure fuel line,causing risks of explosion to workers Complaint Ignacia Becerra i.Kinder Morgan Energy Partners,L.P.,et al. t� 1 (including Plaintiff)using equipment to install water pipe,yet still failing to 2 notify MCI employees and others of hazards and dangers related thereto,all o 3 which were well known by EBMUD employees,officers, agents and 4 representatives, and DOES 1.to 200, and each of them,and failing to correct 5 such hazards and dangers before permitting persons including Plaintiff 6 IGNACIO BECERRA to work; and 7 o. Focusing instead on its supposed need for rapid completion of the 8 underground pipe installation project,failing to take the necessary precautions 9 to own,manage,maintain and control the Project and the property(including 10 public utility easements)throughout the area of this explosion so as to permit 11 workers thereupon to engage safely in their work.activities,thereby acting 12 negligently and creating a dangerous condition of public property which it 13 controlled. ( 14 25. As a proximate result of these acts and omissions,certain defendants were also 15 issued OSHA citations including KMEP,EBMUD and Carollo. A copy of the 16 original citations are attached hereto as"Exhibit A".The citations are as 17 follows: 18 A. Company Name:East Bay Municipal Utility District 19 Inspection*Site: 0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 20 94596 21 Citation 1 Item 1 Type of Violation:SERIOUS 22 TBCCR 1511(b)SAFETY PRECAUTIONS 23 Date by which violation must be abated: 11/09/2004 24 Proposed penalty:$6750.00 25 Prior to the presence of its employees,the employer shall make a thorough survey of the 26 conditions of the site to determine,so far as practicable,the predictable hazards to 27 employees and the kind and extent of safeguards necessary to prosecute the work in a 28 safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix. t Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et at. 1 East Bay Municipal District was aware of the incursion of Kinder Morgan Energy Partners LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility 2 District's Water Line Project as evidenced by maps created by Carollo Engineers PC and 3 reviewed by East Bay Municipal Utility District.East Bay Municipal Utility District 4 reviewed the pot-holing data derived from the field and failed to address the missing data 5 in the vicinity of the offset of the Kinder Morgan Energy Partners LP's 10-inch High 6 Pressure Petroleum Line in the area of Station 100+15,which resulted in the death of five 7 employees and the serious injury of four other employees.Based upon the pot-holing date 8 review,East Bay Municipal Utility District failed to request additional data regarding the 9 location of the 10-inch High Pressure petroleum Line and its close proximity to the water 10 line project excavation.East Bay Municipal Utility District maintained an oversight 11 presence throughout the Project,providing Surveying Control(Line and Grade)and Quality Assurance(Construction Inspectors). 12 13 B. Company Name:Carollo Engineers PC ( 14 Inspection Site:0.5 NII S of S.Broadway and Newell Ave.,Walnut Creek,C 15 94596 16 Citation 1 Item 1 Type of Violation: SERIOUS 17 TS CCR 1511(b)SAFETY PRECAUTIONS Date by which violation must be abated: 11/09/2004 18 Proposed penalty:$22500.00 19 20 Prior to the presence of its employees,the employer shall make a thorough survey of the 21 conditions of the site to determine,so far as practicable,the predictable hazards to 22 employees and the kind and extent of safeguards necessary to prosecute the work in a 23 safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix. 24 Carollo Engineers PC was aware of the incursion of Kinder Morgan Energy Partners 25 LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility District's 26 Walnut Creek project as evidenced by drawings created by Carollo Engineers PC. 27 Carollo Engineers PC failed to evaluate the need for re-design at the time of discovery of 29 the proximity of the two lines.Carollo Engineers PC reviewed the pot-holing data l Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al. 1 derived from the field data.and failed to address the missing data in the vicinity of the 2 offset at Station 100+15 of the Kinder Morgan Energy Partners LP's I 0-inch High Pressure Petroleum Line which resulted in the death of 3 five employees and the serious injury of four other employees.The pot-holing data 4 review should have generated a request for additional data at the point of the closest 5 conflict. 6 7 C. Company Name:Kinder Morgan Energy Partners LP Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 8 94596 9 Citation 1 Item 1 Type of Violation:SERIOUS WILLFUL 10 TSCCR 1541(b)(1)UNDERGROUND INSTALLATIONS 11 Date by which violation must be abated 11/09/2004 12 Proposed penalty:$70000.00 13 14 The estimated location of utility installations,such as sewer,telephone,fuel, E� electric,water lines,or any other underground installations that reasonably may 15 be expected to be encountered during excavation work,shall be determined prior to 16 opening the excavation. . 17 18 Kinder Morgan Energy Partners LP's employees failed to determine by any marking 19 method the estimated location of the 10-inch High Pressure Petroleum Line in the 20 area of Station 100+15 prior to the opening of an excavation to install a waterline 21 which was in close proximity to Kinder Morgan Energy Partners LP's 10-inch High Pressure Petroleum Line.As a result,the 10-inch High Pressure Petroleum Line was 22 beached on November 9,2004 which resulted in the death of five employees and the .23 serious injury of four other employees.Kinder Morgan Energy Partners LP's 74 employees were aware that an unsafe condition existed and failed to assure that the 25 utility was clearly marked which would have resulted in its relocation or other 26 appropriate measures to safeguard employees. 27 D. Company Name:Kinder Morgan Energy Partners LP 28 Inspection Site 0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,CA t Complaint Ignacio Becerra v.Kinder Morgan Energy Partners,L.P.,et al. t 1 94596 2 Citation 2 Item 1 Type of Violation:SERIOUS WILLFUL TBCCR 1511(b)SAFETY PRECAUTIONS 3 Date by which violation must be abated: 11/09/2004 4 Proposed penalty; $70000.00 5 6 Prior to the presence of its employees,the employer shall make a thorough 7 survey of the conditions of the site to determine,so far as practicable,the 8 predictable hazards to employees and the kind and extent of safeguards necessary to prosecute the work in a safe manner in accordance with the relevant parts of Elate 9 A-2-a and b of the Appendix. 10 11 Kinder Morgan Energy Partners LP's employees failed to communicate the proximity 12 of their 10-inch High Pressure Petroleum Line in the area of Station 100+15 of the 13 East Bay Municipal Utility District's Walnut Creek Project.Failure to notify and ( 14 provide safeguards to those involved resulted in the breach of the 10-inch High 15 Pressure Petroleum Line on November 9,2004 which resulted in the death of five employees and the serious injury of four other employees.Kinder Morgan Energy 16 Partners LP's employees were aware that an unsafe condition existed and failed to 17 assure that the utility was clearly marked which would have resulted in its 18 relocation or other appropriate measures to safeguard employees. 19 20 WHEREFORE,Plaintiff IGNACIO BECERRA seeks damages for his injuries,as 21 described on page 3 of the Judicial Council form portion of this Complaint,at paragraph 11. 22 23 24 25 26 27 28 Complaint Ignacio Becerra v KinderMorgarr Energy Partners,LA,et aL I ,7SHORT TITLE: Cass NUMBED: BECERRA v. KINDER MORGAN FIFTH CAUSE OF ACTION-General Negligence Page 39 t�,tt>bert ATTACHMENT TO ®Complaint EDCross-Complaint (Use a separate cause of action fort for each cause of action.) GN-1. Plaintiff(name): IGNACIO BECERRA alleges that defendant(name): CAROLLO ENGINEERS; CAMP, DRESSER AND MCKEE, INC. ®Does I to 2pn was the legal(pro)dmate)cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to plaintiff on(date.: NOVEMBER 9, 2004 AT 1:30 P.M. at(placer WALNUT CREEK, CALIFORNIA (descrlptlon of reasons for liability): SEE ATTACHMENT ENTITLED "FIFTH CAUSE OF ACTION" 1� Form Approved by the Juddalcwrtc8otcellmmra CAUSE OF ACTION-General Negligence c�� CCP 425.12 DlacBva January 1,1902 nJu ue P $ Flule 982.1(3) op8nnw Fort r FIFTH CAUSE OF ACTION I (As against CAROLLO,CDM and DOES 1 to 200) 2 Description of Reasons for Liability: 3 First incorporating the allegations set forth in the pre-printed portion of this Complaint, 4 including,but not limited to,any and all attachments thereof,and the allegations set forth in the 5 First Cause of Action thereof,the Second Cause of Action thereof,the Third Cause of Action 6 thereof and the Fourth Cause of Action thereof,Plaintiff IGNACIO BECERRA further alleges: 7 8 26.At all times herein mentioned,defendants CAROLLO,CDM and DOES 1 to 200, an 9 each of them,were engaged in the business of planning and designing the 10 construction Project herein described,and providing consulting and engineering 11 related services for the Project,and in the course thereof,provided drawings and 12 plans to EBMUD,and others. Because of the close location of the Kinder Pipeline to 13 the EBMUD Pipeline and the work to be done with regard to the Project,and because 14 of the dangerous and ultrahazardous nature of the Project and the Kinder Pipeline and 15 contents thereof,CAROLLO,CDM and DOES 1 to 200,had a duty of due care to, 16 among other things,plan and design the Project in a safe manner to insure the safety 17 of the public and those working on the Project,including Plaintiff IGNACIO 18 BECERRA,and to follow applicable rules,regulations,and statutes. 19 27.At all times herein mentioned,CAROLLO,CDM and DOES I to 200,and each of 20 them,breached that duty of due care and were negligent by,among other things: 2I a. Improperly preparing and designing the plans,drawings,and maps for the 22 Project under circumstances where they were each aware of the incursion of 23 the Kinder Pipeline into the Project's path,but still failed to conduct a 24 thorough survey of the conditions of the site so as to incorporate adequate 25 safeguards for Project workers into their.plans to deal with predictable 26 hazards; 27 b. Improperly failing to evaluate the need for re-design and modifications of the 28 Project at the time they,and each of them,became aware of and discovered l� Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et aL f I the proximity of the Kinder Pipeline to the proposed EBMUD pipeline,and 2 the incursion of the Kinder Pipeline into the Project; 3 c. Improperly interpreting available field data(including"pot-holing"and 4 related data)and improperly failing to request additional or missing data,after 5 reviewing the field data as to the proximity of the Kinder Pipeline to the 6 proposed EBMUD Pipeline in the vicinity of the explosion site,putting 7 workers at risk thereby of the fire and explosion which in fact occurred; 8 d. Despite knowledge of the extreme hazards posed by the incursion of the 9 Kinder Pipeline into the path of the proposed EBMUD Pipeline,improperly 10 . failing to prepare drawings,maps, and plans which effectively warned and 11 communicated to all persons reasonably relying thereon(including those 12 responsible for excavation in the area)the specific location of those areas 13 where the Kinder Pipeline came into close proximity to the path of the 14 EBMUD Pipeline; 15 e. With respect to CDM,and DOES 1 to 200,and each of them,negligently and 16 carelessly entering into a subcontract with CAROLLO regarding the portion 17 of the Project at issue in this lawsuit,under circumstances where it knew or 1.8 should have known that CAROLLO was a contractor of insufficient capability 19 to safely conduct this work;and 20 f. With respect to CDM and DOES 1 to 200, and each of them,negligently and 21 carelessly supervising and exercising retained control over CAROLLO 22 regarding its work on the portion of the Project at issue in this lawsuit. 23 28. As a proximate result of these acts and omissions,certain defendants were also 24 issued OSHA citations including KMEP,EBMUD and Carollo. A copy of the . 75 original citations is attached hereto as"Exhibit A".The citations are as 26 follows: 27 A. Company Name:East Bay Municipal Utility District 28 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C Complaint Ignacio Becerra v Kinder Morgan Enemy Partners,L.P.,et at. I E� 1 94596 Citation 1 Item 1 Type of Violation:SERIOUS TSCCR 1511(b) SAFETY PRECAUTIONS 3 Date by which violation must be abated: 11/09/27004 4 Proposed penalty: $6750.00 5 6 Prior to the presence of its employees,the employer shall make a thorough survey of the 7 conditions of the site to determine,so far as practicable,the predictable hazards to $ employees and the kind and extent of safeguards necessary to prosecute the work in a safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix. 9 10 East Bay Municipal District was aware of the incursion of Kinder Morgan Energy I 1 Partners LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility 12 District's Water Line Project as evidenced by maps created by CarolIo Engineers PC and 13 reviewed by East Bay Municipal Utility District.East Bay Municipal Utility District 14 reviewed the pot-holing data derived from the field and failed to address the missing data 15 in the vicinity of the offset of the Kinder Morgan Energy Partners LP's 10-inch High Pressure Petroleum Line in the area of Station 100+15,which resulted in the death of five 16 employees and the serious injury of four other employees.Based upon the pot-holing data 17 review,East Bay Municipal Utility District failed to request additional data regarding the is location of the 10-inch High Pressure petroleum Line and its close proximity to the water 19 line project excavation.East Bay Municipal Utility District maintained an oversight 20 presence throughout the Project,providing Surveying Control(Line and Grade) and 21 Quality Assurance(Construction Inspectors). 22 B. Company Name:Carollo Engineers PC 23 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 24 94596 25 Citation 1 Item 1 Type of Violation: SERIOUS 26 TSCCR 1511(b)SAFETY PRECAUTIONS 27 Date by which violation must be abated: 11/09/2004 28 Proposed penalty:$22500.00 Complaint Ignacio Becerra a 8inderMorgan Energy Parmers,LP.,et al. I I Prior to the presence of its employees,the employer shall make a thorough survey of the conditions of the site to determine,so far as practicable,the predictable hazards to 2 employees and the kind and extent of safeguards necessary to prosecute the work in a 3 safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix. 4 5 CarolIo Engineers PC was aware of the incursion of Kinder Morgan Energy Partners 6 LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility District's 7 Walnut Creek project as evidenced by drawings created by Carollo Engineers PC. 8 Carollo Engineers PC failed to evaluate the need for re-design at the time of discovery of the proximity of the two lines. Carollo Engineers PC reviewed the pot-holing data 9 derived from the field data and failed to address the missing data in the vicinity of the 10 offset at Station 100+15 of the Kinder Morgan Energy Partners LP's 10-inch High I I Pressure Petroleum Line which resulted in the death of 12 five einployees and the serious injury of four other employees.The pot-holing data 13 review should have generated a request for additional data at the point of the closest 14 conflict. 15 C. Company Name:Kinder Morgan Energy Partners LP 16 Inspection Site:0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek,C 17 94596 18 Citation I Item 1 Type of Violation: SERIOUS WILLFUL 19 TSCCR 1541(b)(1)UNDERGROUND INSTALLATIONS 20 Date by which violation must be abated 11/09/2004 21 Proposed penalty:$70000.00 22 The estimated location of utility installations,such as sewer,telephone,fuel, 23 electric,water lines, or any other underground installations that reasonably may 24 be expected to be encountered during excavation work,shall be determined prior to 25 opening the excavation. 26 27 Kinder Morgan Energy Partners LP's employees failed to determine by any marking 28 method the estimated location of the I0-inch High Pressure Petroleum Line in the area of Station 100+15 prior to the opening of an excavation to install a waterline l cp„,prai,a - Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et at I which was in close proximity to Kinder Morgan Energy Partners LP's 10-inch High Pressure Petroleum Line.As a result,the 10-inch High Pressure Petroleum Line was beached on November 9,2004 which resulted in the death.of five employees and the 3 serious injury of four other employees.Kinder Morgan Energy Partners LP's 4 employees were aware that an unsafe condition existed and failed to assure that the 5 utility was clearly marked which would have resulted in its relocation or other 6 appropriate measures to safeguard employees. 7 8 D. Company Name:Kinder Morgan Energy Partners LP Inspection Site 0.5 MI S.of S.Broadway and Newell Ave.,Walnut Creek,CA 9 94596 10 Citation'2 Item 1 Type of Violation:SERIOUS WILLFUL 11 TBCCR 151 l(b)SAFETY PRECAUTIONS 12 Date by which violation must be abated: 11/09/2004 13 Proposed penalty;$70000.00 14 Prior to the presence of its employees,the employer shall make a thorough 15 survey of the conditions of the site to determine,so far as practicable,the 16 predictable hazards to employees and the kind and extent of safeguards necessary to 17 prosecute the work in a safe manner in accordance with the relevant parts of Elate 18 A-2-a and b of the Appendix. 19 20 Kinder Morgan Energy Partners LP's employees failed to communicate the proximity 21 of their 10-inch High Pressure Petroleum Line in the area of Station 100+15 of the East Bay Municipal Utility District's Walnut Creek Project.Failure to notify and 22 provide safeguards to those involved resulted in the breach of the 10-inch High 23 Pressure Petroleum Line on November 9,2004 which resulted in the death of five 24 employees and the serious injury of four other employees.Kinder Morgan Energy 25 Partners LP's employees were aware that an unsafe condition existed and failed to 26 assure-that the utility was clearly marked which would have resulted in its 27 relocation or other appropriate measures to safeguard employees. 28 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al. I WHEREFORE,Plaintiff IGNACIO BECERRA seeks damages for his injuries,as described on page 3 of the Judicial Council form portion of this Complaint,at paragraph 11. 2 3 4 5 6 7' 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2.7 28 Complaint Ignacio Becerra v.Kinder Morgan Energy Partners,L.P.,et al. SHORT TITLE: BECERRA v. KINDER MORGAN CASE NUMBER: SIXTH CAUSE OF ACTION-Intentional Tort Page (nunte i ATTACHMENT TO M Complaint ID Cross-Complalnt (Use a separate cause of action form for each cause of action.) IT-1. Plaintiff(name): IGNACIO BECERRA alleges that defendant(name): KINDER MORGAN ENERGY PARTNERS, L.P. ; KINDER MORGAN G.P. , INC.; SANTA FE PACIFIC PIPELINE, LP; KINDER MORGAN, INC. (HEREINAFTER REFERRED TO AS KM DEFENDANTS) ®Does I to 2nn was the legal (pro)imate) cause of damages to plaintiff. By the following acts or omissions to act, defendant Intentionally caused the damage to plaintiff on(date): NOVEMBER 9, 2004 AT 1:30 P.M. at(place): WALNUT CREEK, CALIFORNIA (description of reasons-for liability): SEE ATTACHMENT ENTITLED "SIXTH CAUSE OF ACTION" Form alCounApproved ilofrafor CAUSE OF ACTION-intentional TortccP4Mt2 Judicial Council W Calftomfe c+ EfledWa January 1,1982 S45(do Rule992.1(4) OpUanW Form t� 1 SIXTH CAUSE OF ACTION (As against the KM Defendants and Does 1 to 200) 2 Willful Misconduct 3 4 Description of Reasons for Liability: 5 6 First incorporating the allegations set forth in the pre-printed portion of this Complaint, 7 including,but not limited to,any and all attachments thereof, and the allegations set forth in the 8 First Cause of Action thereof,the Second Cause of Action thereof,the Third Cause of Action 9 thereof,the Fourth Cause of Action thereof and the Fifth Cause of Action thereof,Plaintiff 10 IGNACIO BECERRA further alleges: 11 12 13 29. On November 9,2004,there was a gasoline spill and subsequent explosion and fire 14 that occurred on the Concord to San Jose Pipeline(referred to in this Complaint as the 15 Kinder.Pipeline")which is owned and operated by Defendants KMEP,SFPP,KMGP 16 KM Inc.,and DOES 1-200. At 1322 hours,excavation equipment operated by 17 18- Mountain Cascade struck the Kinder Pipeline.The excavator was working on a.large 19 diameter water supply expansion project in Walnut Creek,California for EBMUD. 20 Upon puncture of the Kinder Pipeline,gasoline under high pressure was immediately 21 released into the surrounding area. Several seconds after the pipeline was hit,the 22 gasoline streaming from the rent was ignited.That avoidable explosion and fire 23 24 caused the PLAINTIFF and others to sustain horrific significant personal injuries. 25 Altogether this explosion and fire resulted in five fatalities and serious injuries to four 26 persons(including PLAINTIFF). The direct cause of this incident was the 27 excavator's bucket striking the pipeline and puncturing through the wall of the pipe. 28 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al. I l� I However,there were several factors that significantly contributed to the incident as 2 described below.This needless explosion and fire was proximately caused by the 3 intentional and willful acts of the KM Defendants and DOES 1-200,which included, 4 but are not limited to,the following: 5 6 a. The KM Defendants and DOES 1-200,did not properly locate the Kinder 7 Pipeline as required by its own damage prevention program and as 8 required by California Government Code§4216.These Defendants did 9 10 not mark the approximate location of their pipeline to within 24 inches of 1 I either side of the exterior surface or subsurface location at EBMUD 12 Station 100+15.This is a violation of CFR 49,Part 195.442(a)which 13' requires"each operator of a,buried pipeline must carry out,in accordance 14 15 with this section,a written program to prevent damage to that pipeline 16 from excavation activities."This violation occurred from September 28, 17 2004 through November 9,2004,a period of 42 days. 18 19 b. These Defendants also did not follow their own line locating procedures. 20 In Section 4.2 of chapter 4 Maintenance Manual(Line Locating)it states: 21 "Prior to beginning any maintenance work or excavation work,the 22 location of the pipeline shall be reviewed by the local Line Rider or other 23 24 Company representative and verified by drawings and a pipeline locating 25 device."Although a KMEP representative was present from November 2, 26 through November 9,2004(a period of eight days),to observe benching 27 28 Complaint Ignacio Becerra v.Kinder Morgan Energy Parbrers,L.P.,et aL I 1 operations,he did not review and verify by use of drawings and pipeline. 2 Iocating devices that the location of the pipeline was correctly marked. 3 30.These events described above were the product of a willful and serious violation of 4 law according to the Department of Forestry and Fire Protection,Office of the State 5 Fire Marshall and according to the United States Department of Labor,Occupational 6 7 Safety and Health Administration.These agencies found the violations to be serious 8 and willful.Significant civil penalties were imposed.Based on the facts of the 9 incident described herein and the surrounding facts alleged below,it is hereby alleged 10 that the acts of the KM Defendants,and DOES 1-200,were wanton,willful,and done 11 12 with a reckless disregard for human safety concerns. 13 31.After the fire and explosion herein described and alleged,plaintiff Ignacio Becerra 14 did sustain serious personal injury and damage,loss of certain of his property, 15. including clothing and personal effects. 16 32.The KM Defendants and DOES 1-200,and each of them,knew that to guard against 17 18 extreme risk of injury to persons and property,including those working on the Project 19 such as PLAINTIFF;the contract between EBMUD and Mountain Cascade,Inc., 20 specified,among other things,that work along South Broadway in Walnut Creek, 21 California was adjacent to the Kinder Pipeline,that construction activities should be 22 coordinated with,among others,Larry Hosler,manager of pipeline maintenance and 23 24 Roy Bridge,manager of pipeline safety,for KMEP and Mountain Cascade,Inc.. 25 33.The KM Defendants and DOES 1-200,and each of them,knew that the Kinder 26 Pipeline bad to be properly located in advance of excavation to avoid any physical 27 contact with the Kinder Pipeline as a result of any construction activities. 28 Complaint Ignacio Becerra a%finder Morgan Energy Partners,L.P.,et at. I 1 34.The KM Defendants and DOES 1-200,and each of them,were aware of their 2 respective responsibilities under,among other things,the Government Code and Cod 3 of Regulations to properly plan and design the Project and determine the location of 4 and properly field mark the Kinder Pipeline to allow for safe excavation in the 5 6 vicinity thereof. 7 35.The KM Defendants,and DOES 1-200,and each of them,knew that operating, 8 locating,field marking,and excavating in the vicinity of the Kinder Pipeline created 9 the existence of a special,high degree of risk of harm to persons and property, 10 including those working on the Project,such as PLAINTIFF. The KM Defendants 11 12 and DOES 1-200,and each of them,knew that Matamoros Pipeline Inc.,and its 13 employees,were using welding instructions to weld the EBMUD Pipeline,which 14 considerably increased the extreme risk of harm due to the highly flammable nature 15 of the contents of the Kinder Pipeline,should the subject pipeline be ruptured or 16 breached. 17 18 36,The KM Defendants and DOES 1-200,and each of them,knew that those 19 working on the Project,including PLAINTIFF,would rely on,among others,the KM 20 Defendants and DOES 1-200, and each of them,for their safety to properly design, 21 plan,locate,field mark,warn and excavate in the vicinity of the Kinder Pipeline in 22 compliance with state laws, statues,orders, and regulations. 23 24 37.The KM Defendants and DOES 1-200,and each of them,have experienced multiple 25 avoidable accidents relating to its pipelines,including but not limited to the incident 26 referred to above.The KM Defendants and DOES 1-200,and each of them,have 27 experienced at least 44 accidents relating to its pipelines since January 1,2003.Of 021 Con:plaint Ignacia Becerra v Kinder Morgan Energy Partners,L.P.,et at. 1 these 44 incidents,at least 14 resulted in releases of more than five barrels of refined 2 petroleum products into the surrounding environment. At least 8 known accidents 3 resulting in releases into the surrounding environment have occurred since April 27, 4 2004. A118 of these accidents occurred in or near high consequence areas(as defined 5 in 49 C.F.R. section 195.450)and/or major transportation corridors.Of these 8 6 7 accidents,5 are attributed to outside force damage(e.g.third party damage caused by 8 an excavator or other source,damage caused during construction,etc.)At least 3 of 9 these 5 instances went unaddressed by the KM Defendants and DOES 1-200,and 10 each of them,for an indeterminate period despite internal inspection tool runs 11 conducted on the pipelines prior to the accidents.Approximately 50%of reported 12 13 hazardous liquid pipeline accidents suffered by the KM Defendants and DOES 1-200, 14 and each of them,between 1995 and 2003 were caused by outside forces. 15 38. According to the United States Department of Transportation's"Pipeline and 16 Hazardous Materials Safety Administration,"the recent accidents of the KM 17 18 Defendants and DOES 1-200,and each of them,indicate a"widespread failure to 19 adequately detect and address the effects of outside force damage and corrosion.This 20 failure has systematically affected the integrity of the Pacific Operations Unit."This 21 pattern and practice of these defendants,and each of them,is one to put profits over 22 people,in that these defendants,and each of them,believe that few adverse 23 24 consequences will result from its failures to avoid accidents involving the pipelines. 25 This systematic failure flows from the top on down through the corporate levels of 26 these defendants, and each of them,and includes those decision malting individuals 27 28 Canplaint Ignacio Becerra v Kinder Morgan Energy Partners,LA,et at. 1 including the officers,directors and managing agents of the KM Defendants and 2 DOES 1-200, and each of them. 3 39.The KM Defendants and DOES 1-200,and each of them,knew that the 4 initial contract with EBMUD was awarded to Modem Continental Co.,which 5 contract was later terminated by EBMUD.The KM Defendants and DOES 1-200,an 6 7 each of them,knew that in or about 2003 or 2004,Moder Continental Co.was g excavating for EBMUD Pipeline and determined that a segment of the Kinder 9 Pipeline was approximately 13 feet from where it had been field marked by the KM 10 Defendants and DOES 1-200, and each of them.Moder Continental Co.expressed 11 12 this concern to, among others,the KM Defendants and DOES 1-200,and each of 13 them. In addition,in or about August of 2003,EBMUD requested that the KM 14 Defendants and DOES 1-200,and each of them,relocate a section of the Kinder 15 Pipeline because it was,among other things,hard to locate and a hindrance to 16 completion of the Project. In or about early 2004,Modem Continental,and EBMUD 17 18 were extremely concerned about the location of the Kinder Pipeline because it was 19 still in the way of the excavation for the EBMUD Pipeline and Project. Among 20 others,the KM Defendants and DOES 1-200,and each of them,discussed in early 21 2003 the location of the Kinder Pipeline and how to continue working on the Project 22 despite the location of the Kinder Pipeline. 23 24 40.Because of the construction work in the direct vicinity of the high pressure Kinder 25 Pipeline,the KM Defendants and DOES 1-200,and each of them,knew that it had to 26 guard against the extreme risk of injury and/or death to persons and/or property in the 27 area,including those persons working on the Project along with the general public. 28 Complaint Ignacio Becerra v Kinder Morgan:Energy Partners,,L.P.,et at 1 The KM Defendants and DOES 1-200,and each of them,knew that construction 2 activities were to be coordinated with all parties participating in the Project. 3 41,The KM Defendants and DOES 1-200,and each of them,knew of the peril of an 4 explosion if the flammable liquids or gasses inside the Kinder Pipeline escaped in the 5 vicinity of the construction of the EBMUD Pipeline where workers,including 6 7 PLAINTIFF,worked. The KM Defendants and DOES 1-200,and each of them, 8 knew that the injury of PLAINTIFF was a probable as opposed to possible,result of 9 that danger,as PLAINTIFF had no means of making an easy or fast escape in the 10 event of an explosion and thus would be burned or otherwise seriously injured. 11 12 42.At all times herein mentioned,the KM Defendants,and DOES 1 to 200,and each of 13 them,as owners,operators,and entities having retained control of the petroleum 14 pipeline described herein as the Kinder Pipeline,intentionally,knowingly, 15 deliberately and/or consciously failed to avoid the above described dangers, and 16 engaged in willful misconduct which caused serious personal injury to Plaintiff by, 17 18 among other things: 19 a. Improperly hiring,training,retaining,and supervising their employees, 20 agents,representatives,and independent contractors,including(among 21 others)COMFORCE,_for the performance of work on the Kinder Pipeline 22 and work in relation to the Project,including but not limited to work 23 24 involving the determination of the location of the Kinder Pipeline,i.e.data 25 which needed to be ascertained before workers could safely excavate and 26 work in the area of the EBMUD Pipeline and Kinder Pipeline,and so 27 doing with the knowledge that any failure on the part of those persons to 28 Complaint Ignacio Becerra v.-Kinder Morgan Energy Pailners,.GP.,et aL 1 properly and accurately mark the specific area where the Kinder Pipeline 2 intersected with the area of excavation for the EBMUD Pipeline would . 3 likely and probably result in death or serious injury to those persons 4 working in that area; 5 6 b. Knowingly providing maps,drawings,and plans to entities performing 7 work on the Project which did not accurately depict the location of the 8 Kinder Pipeline; 9 C. Knowingly and deliberately failing to create,obtain,and/or analyze the 10 proper utility maps,plans and drawings accurately showing the location o 11 12 the Kinder Pipeline; 13 d. Knowingly failing to take the necessary steps and precautions to make !� 14 sure that those persons excavating in the area where the Kinder Pipeline 15 intersected with the EBMUD Pipeline path were aware of that incursion o 16 intersection before they excavated in that area; 17 18 e. Improperly failing to obtain the proper permits and other authority to 19 allow for work to be completed in the vicinity of the Kinder Pipeline and 20 EBMUD Pipeline; 21 f. Improperly failing to locate and field mark the location of the Kinder 22 Pipeline prior to the excavation by workers in the area of the EBMUD 23 24 Pipeline and Kinder Pipeline,in violation of, among other things, 25 Government Code Section 4216.3,and so acting while knowing that the 26 failure to do so in that area of intersection and incursion would likely and 27 28 Complaint Ignacio Becerra v.MuderMorgan Energy Partners,L.P.,et al. F� 1 probably result in death or serious injury to persons working in that area o 2 the excavation; 3 g. Intentionally and falsely stating to those persons excavating in the area 4 where the Kinder Pipeline intersected with the EBMUD Pipeline path that 5 it had properly and correctly placed-field markings so as to represent the 6 7 location of the Kinder Pipeline; 8 h. Intentionally and falsely stating to.those persons excavating in the area 9 where the Kinder Pipeline intersected with the EBMUD Pipeline path that 10 the field markings accurately represented the location of the Kinder 11 Pipeline,that said persons excavating need only follow the field marking 12 13 devices to avoid hitting the Kinder Pipeline during excavation,and that 14 additional locating and monitoring by said persons excavating was not 15 necessary; 16 i. Maintaining a company-wide practice,through a corporate policy of 17 18 recklessness and deliberate inaction,of consistently failing to provide 19 accurate information regarding the location of the Kinder Pipeline to 20 entities providing workers who engaged in excavation in close proximity 21 to it,despite knowing that such practices had previously resulted in 22 damage to the Kinder Pipeline from excavation work done near to it; 23 24 j. Improperly failing to relocate the Kinder Pipeline to a location away from 25 the immediate vicinity of the Project and the EBMUD Pipeline prior to 26 permitting workers on the Project to conduct their duties; 27 28 Complaint - + Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et a[. � 1 k. Improperly failing to address the concerns of entities working on the 2 Project,or who had worked on the project(including among others 3 Modern Continental Construction Co.,EBMUD,and DOES I to 200,and 4 each of them),regarding properly ascertaining the location of the Kinder 5 6 Pipeline,as related to the location of the EBMUD Pipeline;and failing to perly and appropriately inform and communicate to workers on the 7 pro 8 Project appropriate knowledge and warnings concerning the location of 9 the Kander Pipeline, and the dangers related thereto which they might 10 encounter; 11 1. Improperly failing to provide necessary safeguards to those workers so as 12 13 to prevent breach of the petroleum line during the progress of the work; 14 In. Improperly entering into a mutual agreement with EBMUD and Mountain 15 Cascade,Inc., allowing the use of power-operated or power-driven 16 excavating or boring equipment within the vicinity of the Kinder Pipeline 17 18 in connection with the Project,without proper safeguards;and 19 D. Improperly failing to inspect,or to do so as frequently as necessary,the 20 Kinder Pipeline,and the proximity of workers thereto,during work on the 21 Project where;through contact with all involved in the Project,the KM 22 defendants knew or should have known that the Kinder Pipeline could be 23 24 breached or damaged by excavation work for the-Project; 25 0. Improperly failing to do all of the above,despite having been informed by 26 entities which previously had performed work at the Project site that 27 28 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al. I workers were having difficulty ascertaining the location of the Kinder 2 Pipeline,so that it could be avoided during their excavation; and 3 p. Improperly failing to do all of the above,despite knowledge that this same 4 Kinder Pipeline bad been damaged previously during excavation work,at 5 a different location thereof. 6 7 43.Further allegations incorporated herein by reference and repetition,are found in 8 the Cal-OSHA report.Cal OSHA made the following findings,each of which also 9 10 tends to prove that the KM Defendants and DOES 1-200, engaged in the willful 11 misconduct alleged here: 12 13 a. OSHA's facts and findings No. 3:"The KMEP Line Rider(Mike Biggs) f 14 marked the entire line at one time by himself.Biggs stated he marked the 15 line on two occasions for Modem Continental Construction(MCC)(the 16 former contractor of the project later replaced by Mountain Cascade Inc.), 17 18 once for potholes on 100-foot centers,and again for 50-foot centers.Biggs 19 did not recall marking the line for anyone except MCC.Biggs did not 20 recall if or how the offset at Station 100+15 was marked." 21 b. OSHA's facts and findings No. 4:"When KMEP Line Rider has a heavy 22 23 work load,KMEP hires contract Iabor from Comforce Technical Services 24 (Comforce). On the early portion of the South Broadway project 25 Comforce's employee assigned to KMEP was Pete Brook." 26 27 C. OSHA's facts and findings No. 5: "Comforce(Brooks)assisted KMEP 28 (Biggs)with marking the full line in late 2002 in preparation for the Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al, I I upcoming fiber optic relocation work of Golden State Utility company 2 (GSUC).Brooks assistance involved following behind Biggs and placing 3 yellow pin flags in yellow paint marks placed by Biggs.Brooks stated that 4 conductive locating was used,that there were no problems with the pipe 5 signal and that the petroleum line was basically straight." 6 7 d. OSHA's facts and findings No. 6:"Brooks recalls that he marked the full 8 9 line by himself in preparation for the upcoming fiber optic relocation work 10 of GSUC.Biggs had marked it earlier,but those marks had disappeared. 11 Brooks_marked it with yellow pin flags on 50 foot centers,but does not 12 recall specifically marking the offset at Station 100+15,and does not 13 recall working with a GSUC crew.All.marldng was completed prior to 14 15 any pot-holing work." 16 e. OSHA's facts and findings No.7:"Prior to beginning field work along 17 18 South Broadway,a field meeting was held on February 3,2003 in the lg Kaiser Parking Lot.At the conclusion of this field meeting the South 20 Broadway portion of the line was walked by Carlos Rodriguez(EBMUD), 21 Mike Biggs(KME )P ,Ed Brennan(Horicultural Science)and Joe Magee. 22 No fresh KMEP markings were observed;no offsets were marked or 23 24 pointed out by KMEP,with the single exception of the known conflict at 25 Station 115+00." 26 27 f. OSHA's facts and findings No. 8:"Prior to beginning field work along 28. South Broadway,a fiber optic communications cable belonging to Time Coinpiaint Ignacia Becerra v.Kinder Morgan Energy Partners,L.P.,et al. 1 Wainer had to be relocated.Time Warner contracted the relocation work 2 to GSUC. GSUC completed their field mapping in December of 2002. 3 The mapping showed some offsets in the KMPE line,but none at Station 4 100+15.The reason that the offset was'not shown is that there was no 5 6 indication of the offset on the ground at the time of the survey." g. OSHA's facts and findings No.10"Videotape taken on January 30,2003 8 9 shows that there were no markings of the offset at Station 100+15." 10 h. OSHA's facts and findings No. 11:"GSUC did their pot-holing of the 11 12 I{MEP line in February 2003.This pot-holing was done on 100-foot 13 centers in preparation for the Time Warner relocation.The KMEP .14 representative was Brooks and he spent the entire day with the GSUC 15 crew.Brooks inspected every pothole.The KMEP line was marked with 16 17 prominent yellow paint marks on approximately 20-foot centers.Brooks 18 did not mark the line,but would occasionally verify the line marking at a 19 pothole location by using an electronic pipe locater.Brooks made it very 20 clear to GSUC that he was not the line locater.The pipeline was marked 21 straight from pothole to pothole." 22 23 i. OSHA's facts and findings No. 12:"MCC awarded an excavation 24 subcontract to Colich and Sons,L.P.(C&S)-One of C&S's first tasks wa 25 26 the pot-holing of the KMEP line along South Broadway on 50-foot centers 27 so the water transmission line could be designed and fabricated.The pot- 28 holing work was done in March 2003.C&S found no paint marks(the Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et aG 1 weather had been very rainy)or yellow flags.The markings C&S followe 2 were KMEP Line Markers placed in the GSUC potholes.KMEP was 3 represented by Brooks on the first day and by Biggs on an intermittent 4 basis thereafter.EBMUD was represented by Carlos Rodriguez,Senior 5 6 Construction Inspector,on a daily basis.KMEP did not mark the line, 7 mark pothole locations or verify each individual pothole." 8 j. 9 OSHA's facts and findings No. 13:"the fiber optic line was successfully 10 relocated by GSUC in March 2003 using horizontal drilling techniques. 11 Brooks was the representative for the petroleum pipeline owners." 12 13 k. OSHA's facts and findings No. 14:"Although C&S potholed the entire 14 line,the MCC contract was terminated by EBMUD on May 28,2004.At 15 this time the water line was installed(but not fully lined)to Station 82+99. 16 The contract was re-awarded to Mountain Cascade,Inc.,on August 10, 17 18 2004,with field work commencing in late September 2004." 19 1. OSHA's facts and findings No. 15:"Friar to starting excavation,the 20 21 contract required that a field meeting be held.The required meeting was 22 held on September 28,2004 at approximately Station 83.The meeting was 2.3 attended by EBMUD(Mark Miller,Construction Inspector) (Shawn Ross, 24 Superintendent and Gene Im,Foreman)and KMEP(Biggs).Biggs stated 25 that the Line Markers were directly over the petroleum line and that the 26 27 line ran straight between the Line Markers.Ross did not specifically ask 28 about the offset at Station 100+15.At the conclusion of the field meeting Complaint. Ignacio Becerra v Binder Mogan Energy Partners,L.P.,et A I Ross and I walked the entire length of the line using a 100-foot tape to 2 show Biggs the location of EBMUD line and determine if there would be 3 any interference with the KMEP line.At first Biggs stated that the meeting 4 occurred on September 27,2004,that Miller was not there and that the 5 wallc down the line with Mountain Cascade,Inc.,did not occur,but later 6 7 said that the meeting occurred on September 22,the meeting originated at 8 the Kaiser parking lot,and that he(Biggs)walked approximately one- 9 quarter mile down the line with Mountain Cascade Inc.." 10 11 m. OSHA's facts and findings No. 16:`Biggs was the KMEP representative 12 from September 28 to October 1,2004.On October 1 Biggs introduced 13 Mark Presley(Comforce)as the new KMEP inspector." 14 15 n. OSHA's facts and findings No. 17:"Benching for the trenching excavator 16 in the area of the offset at Station 100+15 took place approximately 10 17 18 days prior to the puncture of the line. The benching was performed by 19 Dave Bower(Operator for Mountain Cascade,Inc.)and was monitored by 20 Presley.Presley monitored the benching for one and one-half to two days. 21 Presley believed he was not present when Bower benched over marking 22 the offset at Station 100+15,but others said that he was.In any case, 23 24 Presley did not point out the offset during the benching work because he 25 did not know it was there.' 26 27 0. OSHA's facts and findings No. 18:"Carollo indicated the offset at Station 28 100+15 based upon KMEP drawings and prepared Note 2,which requires l� Con:plaint _ Ignacio Becerra v.Kinder Morgan Energy Partners,L.P.,et al. I verification of the petroleum line location from Station 100 to station 101 2 and from Station 103 to station 129.The location of the puncture was 3 100+12.5." 4 5 p. OSHA's facts and findings No. 19:"Photographs taken in the area of 6 Station 100+15 on November 3 and 4,2004 show that there were no 7 markings of the offset prior to or after the benching activity." g 9 q. OSHA's facts and findings No.20:"Ross spoke to Biggs on November 5, 10 2004 and requested a site meeting on November 8,2004.Ross knew 11 12 Mountain Cascade,Inc.,was approaching IT Station 100." 1.3 r. OSHA's facts and findings No.21: `"The requested meeting was held 14 15 along South Broadway on the morning of November 8,2004.Ross states 16 the meeting had three subjects,with the major one being that Biggs should 17 meet with him as was approaching Station 100 and Ross wanted to make 18 sure Mountain Cascade,Inc.,was excavating properly.Ross did not 19 specifically ask about the offset at Station 100+15.The two other subjects 20 21 Ross brought up related to future work on bore pits.Biggs states the only 22 subject was the shoring of one of the future bore pits,that he was not 23 asked to see him,and that he did not stop by the excavation site.Biggs 24 states that he came to the meeting and left the meeting via Rudgear Road." 25 26 S. OSHA's facts and findings No.22: `Biggs was observed meeting with 27 him near Station 99+50 during mid afternoon on November 8,2004 by an 28 Complaint Ignacio Becerra Y.Kcnder Morgan Energy Partners,LP.,et aL I 1 Operator.The meeting was noticeable because Biggs truck was blocking 2 the path of the excavation dump truck." 3 t. OSHA's facts and findings No.23: `Biggs' KMEP truck was observed 4 driving by the excavation site on November 8,2004 by another Mountain 5 Cascade,Inc.,Operator.The driver of the truck was not observed." 6 7 U. OSHA's facts and findings No.24: "the KMEP petroleum line was 8 punctured on November 9,2004,at 13:22 by an excavator operated by 9 10 Mountain Cascade,Inc.,Operator Greg Berry.Berry is positive that the 11 offset in the petroleum line was not marked any time after the area was 12 benched for his excavator." 13 10 14 V. OSHA's facts and findings No.25: "The gasoline released by the puncture 15 of the excavator tooth was ignited by the welding activity performed by 16 Matamoros.The resulting explosion and fire resulted in five deaths and 17 18 four serious injuries.Extensive property damage was also sustained as a 19 result of the explosion and fire." 20 44.Although the KM Defendants knew that applicable law required that the location of 21 underground installations,such as petroleum pipelines that reasonably may be 22 expected to be encountered during excavation work,shall be determined prior to 23 24 opening an excavation,but they nonetheless willfully failed to determine by a 25 marking method the accurate location of the Kinder Pipeline,in the area of its 26 intersection with the excavation path of the EBMUD Pipeline,prior to the opening of 27 an excavation to install that water line.The KM Defendants knew that workers would 28 Complaint Ignacio Becerra P.Kinder Morgan Energy Partners,L.P.,et at. I 1 have to operate excavation equipment in the same area where the Kinder Pipeline 2 intersected the path of the EBMUD Pipeline, yet they willfully failed to ensure that 3 the Kinder Pipeline was clearly marked,which would have resulted either in its 4 relocation,or in other appropriate measures to safeguard workers.As a result of the 5 willful action or inaction of the KM Defendants as herein described,the Kinder 6 7 Pipeline was breached, as herein alleged,causing Plaintiff IGNACIO BECERRA 8 serious personal injury. 9 45.In engaging in the actions and inactions described above,the KM Defendants;and 10 DOES 1 to 200,did have knowledge of the potential peril that ultimately resulted in 1I 12 Plaintiff IGNACIO BECERRA's personal injury(i.e., the possibility of a breach of 13 the Kinder Pipeline unless great care was exercised in ascertaining its location,duly 14 notifying and informing workers of its location, and assuring that adequate safeguards 15 were undertaken in work at the site); and they consciously failed to act to avoid that 16 peril(i.e.,by failing to engage in the preventive actions,measures,and 17 18 communications herein described); and they did so,even though they knew,for 19 reasons above described, that injury or death of workers at the Project site was a 20 probable,not merely a possible,result of that danger. 21 46.The acts herein alleged were consistent with and in conformity with an ongoing 22 23 corporate or company policy of each such defendant,in the interest of cost-saving an 24 company profits,to purposefully and intentionally ignore a multitude of accidents 25 involving its pipelines nationwide,including 44 accidents in the KM Defendants' 26 Pacific Operations Unit of hazardous pipelines alone of sufficient severity to trigger 27 federal reporting pursuant to 49 C.F.R.§ 195.54 since January 1,2003 which resulted 28 Complaint Ignacio Becerra Y.Kinder Morgan Energy Partners,LP.,et aL. I 1 in a federal Corrective Action Order from the Department of Transportation("DOT") 2 and a determination by the DOT that continued operation of the Pacific Operations 3 unit would be hazardous to life,property and the environment. The Order required 4 the KM Defendants to address safety policy deficiencies including inadequacies with 5 6 respect to line-marking and on-call procedures. Despite full knowledge of the 7 consistent pattern of conduct by its employees which led to these regularly occurring 8 pipeline accidents, and despite knowing of all dangers to human life associated with 9 such accidents,the KM Defendants did intentionally and consciously fail to improve, 10 update or change those ineffective safety policies and practices which led directly to 11 such accidents and failed to meaningfully discipline the employees whose conduct le 12 13 to such accidents. Instead,the KM Defendants authorized or ratified such conduct. 14 47.The acts herein alleged were either the acts of an officer,director or managing agent 15 of the KM Defendants and DOES 1 to 200;or the acts were consistent with and in 16 conformity with the corporate or company policy of each such defendant;or said acts 17 18 were those of an employee of said defendants under circumstances where said 19 defendants had advance knowledge of the unfitness of the employee so acting,and 20 still employed him or her;or,alternatively,said defendants,in the interest of 21 maximizing their business interests,chose to authorize or ratify said conduct. 22 48.All of the conduct herein alleged, taken together,constituted conduct that was 23 24 malicious and oppressive as to PlaintiffIGNACIO BECERRA,in that it was 25 despicable conduct carried on by the KM Defendants with a willful and conscious 26 disregard of the rights or safety of others,and it constituted cruel and unjust hardship 27 to Plaintiff accordingly. That is so demonstrated by the allegations above,which 28 Complaint Ignacio Becerra v.Kinder Morgan Energy Partners,LP.,et al. 1 demonstrate that the KM Defendants knew of the peril,consciously failed to act to 2 avoid the peril,and knew that injury or death was a probable result if they acted in 3 that manner. 4 49.All of the conduct described herein constituted numerous serious violations of the 5 California Code of Regulations. Section 8 CCR §334 defines a"serious violation" 6 7 as follows: 8 "(C) Serious Violation. 9 (1) A"serious violation"shall be deemed to exist in a place of 10 employment if there is a substantial probability that death or serious 11 physical harm could result from a violation,including,but not limited to, 12 13 circumstances where there is a substantial probability that either of the 14 following could result in death or great bodily injury: 15 (A) A serious exposure exceeding an established permissible exposure 16 limit or, 17 18 (B) A condition which exists,or from one or more practices,means, 19 methods,operations,or processes which have been adopted or are 20 in use,in the place of employment." 21 50.All of the conduct described herein constituted"willful'violations of the California 22 Code of Regulations.Section 8 CCR§334 defines a"willful violation"as follows: 23 24 "(e) Willful Violation 25 (2) Willful Violation--is a violation where evidence shows that the employer 26 committed an intentional and knowing,as contrasted with inadvertent, 27 violation, and the employer is conscious of the fact that what he is doing 28 Con:plaint Ignacio Becerra P.Kinder Morgan Energy Partners,LP.,et al. 1 constitutes a violation of a safety law;or,even though the employer was 2 not consciously violating a safety law,he was aware that an unsafe or 3 hazardous condition existed and made no reasonable effort to eliminate the 4 condition." 5 6 51.All of the conduct alleged in this cause of action constitute serious and willful 7 violations of laws specifically found in 8 CCR §334.Based on these independent 8 investigative findings and the facts as known,it is hereby alleged that the conduct .9 herein constitutes willful misconduct on the part of these defendants. 10 11 12 WHEREFORE,Plaintiff IGNACIO BECERRA seeks punitive and exemplary damages 13 against the KM Defendants,and Does 1 to 200,in an amount to be ascertained at trial. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint Ignacio Becerra v.Kinder Morgan Energy Partners,LP.,et al. SHORTTITLE: BECERRA v. KINDER MORGAN CASE NUMBER Exemplary Damages Attachment page !� ATTACHMENT TO XO Complaint Q Cross-Complaint EX-1. As additional damages against defendant (name}: KINDER MORGAN ENERGY PARTNERS, L.P. ; KINDER MORGAN G.P. , INC. ; SANTA FE PACIFIC PIPELINE, LP; KINDER MORGAN, INC. , (HEREINAFTER REFERRED TO AS KM DEFENDANTS) Plaintiff alleges defendant was guilty of EU malice fraud r X-1 oppression as defined in Civil Code section 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and to punish defendant. EX-2. The facts supporting plaintiffs claim are as follows: 1. PLAINTIFF•repeats and realleges as set forth in full in the First Cause of Action, the Second Cause of Action and the Sixth Cause of Action. (Please see attachment) EX-3. The amount of exemplary damages sought Is a. [] not shown,pursuant to Code of Civil Procedure section 425.10. b. Q $ 0.00 � dffi �c the e EXEMPLARY DAMAGES ATTACHMENT {T `1� CCP 425.12 elective Jane"1.low .�O1i1L OnS- Rule OMI(113) 1t Phis opltaiel Fmm 1 (Exemplary Damages Attachment) 2 .3 4 2. Although the KM Defendants and DOES 1-200,were well aware that applicable law 5 required that the location of underground installations such as petroleum pipelines 6 that reasonably may be expected to be encountered during excavation work shall be 7 . determined prior to opening an excavation,they nonetheless willfully failed to 8 9 determine by a marking method the accurate location of the Kinder Pipeline,in the 10 area of its intersection with the excavation path of the EBNM Pipeline,prior to the 11 opening of an excavation to install that water line. The KM Defendants and DOES 1- 12 200, were aware that workers would have to operate excavation equipment in the 13 same area where the Kinder Pipeline intersected the'path of the EBMUD Pipeline,yet (� 14 IS they willfully failed to ensure that the Kinder Pipeline was clearly marked,which 16 would have resulted either in its relocation,or in other appropriate measures to 17 safeguard workers.As a result of the willful action or inaction of the KMEP 18 Defendants as herein described,the Kinder Pipeline was breached,as herein alleged, 19 causing PLAINTIFF'S personal injury. 20 21 3. In engaging in the actions and inactions described above,the KM Defendants,and 22 DOES 1-200, did have knowledge of the potential peril that ultimately resulted in 23 24 PLAINTIFF'S personal injury(i.e.,the possibility of a breach of the Kinder Pipeline 25 unless great care was exercised in ascertaining its location,duly notifying and 26 informing workers of its location,and assuring that adequate safeguards were 27 undertaken in work at the site);and they consciously failed to act to avoid that peril 28 (i.e.,by failing to engage in the preventive actions,measures,and communications complaint Ignacio Becerra Y.Kinder Morgan Energy Partners,LP.,et at. i 1 herein described);and they did so,even though they knew,for reasons above- 2 described, that injury or death of workers at the Project site was a probable,not 3 merely possible,result of that danger. 4. 5 4. The acts herein alleged were consistent with and in conformity with an ongoing 6 corporate or company policy of each such defendant,in the interest of cost-saving 7 and company profits,to purposefully and intentionally ignore a multitude of S accidents involving its pipelines nationwide,including 44 accidents in the KM 9 10 Defendants',and DOES 1-200,Pacific Operations Unit of hazardous pipelines alone 11 of sufficient severity to trigger Federal reporting pursuant to 49 C.F.R. § 195.54 since 12 January 1,2003 which resulted in a federal Corrective Action Order from the 13 Department of Transportation("DOT')and a determination by the DOT that 14 IS continued operation of the Pacific Operations unit would be hazardous to life, 16 property and the environment.The Order required the KMEP Defendants to address 17 safety policy deficiencies including inadequacies with respect to line-marking and on 18 call procedures.Despite full knowledge of the consistent pattern of conduct by its 19 employees which led to these regularly occurring pipeline accidents, and despite fall 20 21 awareness of all dangers to human life associated with such accidents,the KMEP 22 Defendants did intentionally and consciously fail to improve,update or change those 23 ineffective safety policies and practices which led directly to such accidents and 24 failed to meaningfully discipline the employees whose conduct led to such accidents. 2$ Instead,the KM Defendants and DOES 1-200,authorized or ratified such.conduct. 26 �7 5. The acts herein alleged were either the acts of an officer,director or managing 2$ agent of the KM Defendants and DOES 1-200;or the acts were consistent with and in Complaint Ignacio Becerra v.Kinder Morgan Energy.Partners,LP.,et aL . 1 conformity with the corporate or company policy of each such defendant;or said acts 2 were those of an employee of said defendants under circumstances where said 3 defendants had advance knowledge of the unfitness of the employee so acting,and 4 still employed him or her;or,alternatively,said defendants,in the interest of 5 6 maximizing their business interests,chose to authorize or ratify said conduct. 7 6. All of the conduct herein alleged,taken together,constituted conduct that was 8 malicious and oppressive as to plaintiff,in that it was despicable conduct carried 9 10 on by the KM Defendants and DOES 1-200,with a willful and conscious disregard of 11 the rights or safety of others.That is so demonstrated by the allegations above,which 12 demonstrated that the KM Defendants and DOES 1-200,were aware of the peril, 13 consciously failed to act to avoid the peril,and knew that injury or death was a ( 14 probable result if they acted in that manner. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint Ignacio Becerra v.Kinder Morgan Energy Partners,GP.,et at. I I Michael D.Michel,Esq. (SBN 06213 1) Jeff M.Fackler,Esq. (SBN 142101) 2 MICHEL&FACKLER A Professional Corporation 3 2000 Powell Street,Suite 1000 Emeryville,California 94608 12-22-05 4 Tel.: (510)547-7319 Fax: (510)547-7320 K.TORRE CLERIC OFTHE COURT 5 SUPMOR COURT OF CAi.IFORNIA Attorneys for Plaintiffs COUNTY OF CONTRA COSTA-'MARTINEZ 6 ENOS and LETO CHABOT,THE BY: S.HARBRECK,DEPUTY CLERK CHABOT LIVING TRUST OF ENOS N. 7 CHABOT AND LETO N.CHABOT 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF CONTRA COSTA 10 11 GAS PIPELINE EXPLOSION CASES Judicial Council Coordination Proceeding No. 4433 12 Coordinated Actions: KNOX'et al.vs.MOUNTAIN CASCADE, FIRST AMENDED COMPLAINT FOR 13 et al.(Contra Costa Sup.Ct.Case No.C05- DAMAGES FOR NEGLIGENCE,STRICT 00281);FARLEY v.MOUNTAIN LIABILITY,NEGLIGENT OPERATION 14 CASCADE,et al.(Contra Costa Sup.Ct.. OF MOTOR VEHICLE,VICARIOUS Case No.C05-01573);REYES,et al.v. LIABILITY FOR OWNERSHIP OF 15 KINDER MORGAN,et al.(Alameda Sup. MOTOR VEHICLE, Ct.Case No.RG05-207720);ARIAS,et al.v. BREACH OF MANDATORY DUTIES 16 KINDER MORGAN(Alameda Sup. Ct. Case IMPOSED BY HEALTH AND SAFETY No.RG05-195567);ANGELES,et al.v. CODE,NEGLIGENT VIOLATION OF 17 KINDER MORGAN,et al.(AIameda Sup. HEALTH AND SAFETY CODE, Ct Case No.RG05-195680);IM,et al.v. VICARIOUS LIABILITY FOR TORTS 18 KINDER MORGAN,et al.(Contra Costa OF INDEPENDENT CONTRACTORS, Sup.Ct.Case No.05-02077);PAASCH v. DANGEROUS CONDITIONS OF PUBLIC 19 EAST BAY MUNICIPAL UTILITY PROPERTY,PREMISES LIABILITY, DISTRICT,et al.(Contra Costa Sup.Ct.Case UNFAIR BUSINESS PRACTICES, 20 No.05-02144);FUENTES v.KINDER INVERSE CONDEMNATION, MORGAN,et al.(Contra Costa Sup.Ct Case TRESPASS AND NUISANCE 21 No.05-02286);USAA v.EAST BAY MUNICIPAL UTILITY DISTRICT,et al. JURY TRIAL DEMANDED 22 (Contra Costa Sup.Ct.Case No.05-2128); TAYLOR,et al.v.EAST BAY MUNICIPAL (CHABOT,et al.v.EAST BAY MUNICIPAL 23 UTILITY DISTRICT,et al.(Contra Costa UTILITY DISTRICT,et al.Contra Costa Sup. Sup.Ct.Case No.C05-2306);CHABOT,et Ct.Case No. C05-02312) 24 al.v.EAST BAY MUNICIPAL UTILITY DISTRICT,et al.(Contra Costa Sup.Ct.Case 25 No. C05-02312);MATAMOROS,et al.v. KINDER MORGAN ENERGY PARTNERS, 26 et al.(Contra Costa County Sup.Ct.Case No. C05-02349);BECERRA v.KINDER 27 MORGAN ENERGY PARTNERS,et al. (Contra Costa Sup.Ct.Case No.C05-2451) 28 / First Amended Com laint or Dama es or Negligence,et al.-JURY TRIAL DEMANDED Pa P f g .f %e I I Plaintiffs allege as follows: 2 1. At all times relevant herein,plaintiffs ENOS and LETO CHABOT owned and own 3 the real property located at 2053 Doris Avenue in the City of Walnut Creek,Contra Costa County, 4 California. 5 2. Plaintiff THE CHABOT LIVING TRUST OF ENOS N.CHABOT AND LETO N. 6 CHABOT also was and is an owner of the residence at 2053 Doris Avenue. Mr.and Mrs. 7 CHABOT are the trustees of THE CHABOT LIVING TRUST OF ENOS N.CHABOT AND 8 LETO N.CHABOT. All plaintiffs shall be referred to collectively herein as"plaintiffs." 9 3. At all relevant times on and prior to November 9,2004,plaintiffs were the owners 10 and occupants of a single-family dwelling located on the premises at 2053 Doris Avenue. 11 4. ENOS CHABOT is presently 71 years of age. His wife,LETO CHABOT,is 12 presently 65 years of age. 13 5. Defendant EAST BAY MUNICIPAL UTILITY DISTRICT("EBMUD")is,and at 14 all times relevant herein was,a publicly-owned utility formed and operated under the Municipal E 15 Utility District laws of the State of California EBMUD conducts many of its operations,including 16 those giving rise to the present action,in Contra Costa County. 17 6. EBMUD planned,designed,owned,supervised,controlled and undertook the 18 construction of a public works project known as the Walnut Creek-San Ramon Valley 19 Improvement Project(hereafter,"the Project').In pertinent part,the Project involved the 20 fabrication,construction and installation of a 72-inch diameter pipeline designed to transport water 21 from Walnut Creek to San Ramon("the Northern Pipeline").in general,the planned route of the 22 Northern Pipeline was parallel to and above a 10-inch diameter high-pressure petroleum products 23 pipeline located in Walnut Creek("the Kinder Pipeline"). 24 7. On or about May 6,2005,plaintiffs ENOS and LETO CHABOT presented their 25 claims herein to EBMUD in writing,in accordance with the requirements of California 26 Government Code section 910 et seg.On or about May 16,2005,EBMUD rejected plaintiffs' 27 claims in their entirety. 28 S. On November 8,2005,plaintiff THE CHABOT LIVING TRUST OF ENOS N. First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 2 l� 1 CHABOT AND LETO N.CHABOT("THE TRUST")applied to EBMUD for leave to file a late 2 claim. On or about November 22,2005,EBMUD granted THE TRUST's application for leave to 3 file a late claim. 4 9. On November 29,2005,THE TRUST presented the claims herein to EBMUD in 5 writing,in accordance with the requirements of California Government Code section 910 et seq. 6 On or about November 30,2005,EBMUD rejected THE TRUST's claims in their entirety. 7 10. Defendant MOUNTAIN CASCADE,INC.("MCI")is,and at all times relevant 8 herein was,a corporation duly organized and existing under the laws of the State of Delaware,and 9 authorized to do business in the State of California. EBMUD awarded MCI the general contract for 10 construction of the Northern Pipeline. I 1 11. Defendant KINDER MORGAN,INC.("KMI")is,and at all times relevant herein 12 was,a corporation duly organized and existing under the laws of the State of Kansas,and 13 authorized to do business in the State of California. KMI owns and/or operates more than 35,000 e 14 miles of pipeline for the transmission of natural gas,fuel and similar products.KMI was and is the 15 designer,manufacturer,owner,operator,manager,locator,field marker,monitor and inspector of 16 the Kinder Pipeline. 17 12. Defendant KINDER MORGAN ENERGY PARTNERS,L.P.C KMEP")is,and at 18 all times relevant herein was,a limited partnership duly organized and existing under the laws of 19 the State of Delaware,and authorized to do business in the State of California KMEP was and is 20 the designer,manufacturer,owner,operator,manager,locator,field marker,monitor and inspector 21 the Kinder Pipeline.KMEP is the largest independent owner and operator of fuel products pipeline 22 in the United States,and is a wholly-owned subsidiary of KMI. 23 13. Defendant SFPP,L.P.("SFPP")is,and at all times relevant herein was,a limited 24 partnership duly organized and existing under the laws of the State of Delaware,and authorized to 25 do business in the State of California. SFPP was and is the designer,manufacturer,owner, 26 operator,manager,locator,field marker,monitor and inspector of the Kinder Pipeline. SFPP is an 27 operating partnership and subsidiary limited partnership of KMEP. 28 14. Defendant KINDER MORGAN G.P.,INC.C KMGP")is,and at all times relevant First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 3 I herein was,a corporation duly organized and existing under the laws of the State of Delaware,and 2 authorized to do business in the State of California. KMGP is the general partner of KMEP. 3 KMGP was and is the designer,manufacturer,owner,operator,manager,locator,field marker, 4 monitor and inspector of the Kinder Pipeline. 5 15. Defendant MATAMOROS PIPELINES,INC.,also known as and doing business as 6 MATAMOROS PIPELINE("MATAMOROS")is,and at all times relevant herein was,a 7 corporation duly organized and existing under the laws of the State of California with its principal 8 place of business in the City of Oakley,Contra Costa County,California. MCI contracted with 9 MATAMOROS for MATAMOROS to perform welding work on the Project. 10 16. Defendant CAMP,DRESSER&McKEE,INC.("CDM")is,and at all times 11 relevant herein was,a corporation duly organized and existing under the laws of the State of 12 Massachusetts,and authorized to do business in the State of California. EBMUD entered into a 13 contract with CDM for CDM to design the Northern Pipeline.Prior to serving this complaint on 14 CDM,plaintiffs will file the necessary certificate of merit regarding CDM pursuant to California 15 Code of Civil Procedure section 411.35. 16 17. Defendant CAROLLO ENGINEERS,P.C.,("CAROLLO")is,and at all times 17 relevant herein was,a professional corporation duly organized and existing under the laws of the 18 State of Arizona,and authorized to do business in the State of California.CAROLLO designed the 19 portion of the Northern Pipeline at issue in this lawsuit pursuant to.a subcontract with CDM. Prior 20 to serving this complaint on CAROLLO,plaintiffs will file the necessary certificate of merit 21 regarding CAROLLO pursuant to California Code of Civil Procedure section 411.35. 22 18. Defendant COMFORCE TECHNICAL SERVICES,INC.("COMFORCE)is,and 23 at all times relevant herein was,a corporation duly organized and existing under the laws of the 24 State of Delaware,and authorized to do business in the State of California.COMFORCE was hired 25 by KMi,KMEP,SFPP,KMGP and others to provide pipeline construction inspectors for the 26 Kinder Pipeline and the Project. 27 19. DOES 1-50,inclusive,and each of them,are,and at all times mentioned herein 28 were,individuals,entities and/or business organizations,form unknown,that were engaged in the First Amended Complaint for Damages for Negligence,et at.-JURY TRIAL DEMANDED Page 4 I business of planning,designing,owning,supervising,controlling,and constructing the Project. 2 20. DOES 5I-100,inclusive,and each of them,are,and at all times mentioned herein 3 were,individuals,entities and/or business organizations,form unknown,that were engaged in the 4 construction,supervision,operation,and control of the Project as contractors or subcontractors 5 hired by EBMUD,MCI,MATAMOROS,DOES 1-50,DOES 151-250 and/or any or each of them. 6 21. DOES 101-150,inclusive,and each of them,are,and at all times mentioned herein 7 were,individuals,entities and/or business organizations,form unknown,that designed, 8 manufactured,sold,owned,controlled,operated,maintained,inspected,distributed,transported, 9 located,field marked,monitored and/or managed the Kinder Pipeline and/or the contents thereof. 10 22. DOES 151-200,inclusive,and each of them,are,and at all times mentioned herein 11 were,individuals,entities and/or business organizations,form unknown,that operated the 12 excavation vehicle which struck the Kinder Pipeline. 13 23. DOES 201-250,inclusive,and each of them,are,and at all times mentioned herein 14 were,individuals,entities and/or business organizations,form unknown,that were the owner(s), 4 15 lessor(s)and/or bailee(s)of the excavation vehicle which struck the Kinder Pipeline. 16 24. DOES 251-300,inclusive,and each of them,are,and at all times mentioned herein 17 were,individuals,entities and/or business organizations,form unknown,that owned or controlled 18 the real property where the Project,Northern Pipeline,and Kinder Pipeline was located. 19 25. DOES 301400,inclusive,and each of them,were and are in some manner 20 responsible for the acts,omissions,decisions and/or events giving rise to this action and the injuries 21 and damages suffered by plaintiffs as alleged herein. 22 26. Plaintiffs are ignorant of the true names and/or capacities of defendants sued herein . 23 as DOES 1-400,inclusive,and therefore sue these defendants by such fictitious names.Plaintiffs 24 will amend this complaint to allege defendants'true names and entities when ascertained.' 25 27. Plaintiffs are informed and believe,and on that basis allege,that each of the 26 fictitiously-named defendants is responsible in some manner for the occurrences herein alleged,and 27 that plaintiffs' damages and injuries herein alleged were proximately caused by said defendants' 28 conduct. First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 5 1 28. Plaintiffs are informed and believe,and on that basis allege,that at all times 2 mentioned herein,each of the defendants was the agent and employee of each of the remaining 3 defendants,and in doing the things alleged herein,was acting within the course and scope of said 4 agency and employment,with the knowledge,approval,consent,and/or ratification of each of the 5 remaining defendants. 6 29. Plaintiffs are informed and believe,and thereupon allege,that at all times relevant 7 herein,there exists,and has existed,a unity of interest and ownership between KMI,KMEP,SFPP, 8 KMGP and DOES 101-150,and each of them,such that any individuality and separateness 9 between the entities has ceased to exist. Upon information and belief,KMEP is the alter ego of 10 KMI,SFPP,KMGP and DOES 101-150,and each of them. Upon information and belief,SFPP is 1 I the alter ego of KMI,KMEP,KMGP and DOES 101-150,and each of them. Upon information 12 and belief,KMGP is the alter ego of KMI and DOES 101-150. 13 30. Plaintiffs are informed and believe and thereon allege that,among other things,(a) 14 KMEP was and is completely controlled,dominated,managed and operated by KMI,KMGP and I5 DOES 101-150,and each of them;(b)SFPP was and is completely controlled,dominated, 16 managed,and operated by KMI,KMEP,KMGP and DOES 101-150,and each of them;(c)KMGP 17 was and is completely controlled,dominated,managed,and operated by KMI and DOES 101-150, 18 and each of them; (d)KMI,KMEP,SFPP,KMGP and DOES 10 1-150 have permitted assets to be 19 transferred among themselves without adequate consideration;(e)KMI,KNIEP,SFPP,KMGP and 20 DOES 101-150,and each of them,have disguised corporate profits,in order to evade liability and 21 the payment of judgments;and(f)KMI,KMEP,SFPP,KMGP and DOES 101-150,and each of 22 them,was and is inadequately capitalized. Adherence to the fiction of the separate existences of 23 KMI,KMEP,SFPP,KMGP and DOES 101-150 would permit an abuse of the corporate privilege 24 and would sanction fraud or promote injustice because the entities,and each of them,used in bad 25 faith the corporate form for the purpose of avoiding liability and as a means of allowing the other 26 entities to profit from their control,to the detriment of plaintiffs and other injured parties. 27 GENERAL ALLEGATIONS 28 31. EBMUD and DOES 1-50,and each of them,planned,designed,owned,supervised, Firs!Amended Complain(for Damages for Negligence,et at.-JURY TRIAL DGMAND.ED Page 6 I controlled,and constructed the Project,which involved the excavation of the project site and the 2 construction,fabrication and installation of the Northern Pipeline in and through Walnut Creek. 3 32. In or about 2000,EBMUD entered into a contract with CDM for CDM to provide 4 professional engineering and design of the Project on EBMUD's behalf. With EBMUD's 5 knowledge and consent,CDM subsequently entered into a subcontract with CAROLLO,whereby 6 CAROLLO would design the portion of the Project which is at issue in this action. 7 33. In or about October 2002,EBMUD awarded the general contract for construction of 8 the Northern Pipeline to Modern Continental Construction Company("Modern Continental"). 9 34. The Project called for the Northern Pipeline to be constructed and installed 10 immediately adjacent to the existing Kinder Pipeline. The Kinder Pipeline was and is an 11 underground utility transporting highly flammable and dangerous material,consisting of gasoline, 12 diesel fuel and/or jet fuel. 13 35. Defendants,and each of them,were aware of the existence of the Kinder Pipeline E 14 and its proximity to the Project and the operations to be performed at the Project. Defendants,and 15 each of them,were aware that the Kinder Pipeline,the proposed Northern Pipeline and the Project 16 ran through and immediately adjacent to a residential neighborhood occupied by persons such as 17 plaintiffs. Defendants were aware of the great danger to life and property,including the danger to 18 the property of plaintiffs,posed by the Kinder Pipeline,its contents,and the performance of 19 excavation and construction activities for the Project in the immediate vicinity of the Kinder 20 Pipeline. Defendants,and each of them,were aware of the ultrahazardous nature of the activities 21 performed on the Project which arose from the proximity of the Project to the Kinder Pipeline. 22 36. In late 2002,a line rider employed by KMI,KMEP,SFPP,KMGP,COMFORCE 23 and DOES 101-150,and each of them marked the full Kinder Pipeline. This individual marked the 24 Kinder Pipeline by placing paint marks and flags on the ground to indicate the route of the Kinder 25 Pipeline. However,this individual failed to indicate a bend in the line where an oak tree once 26 stood,at a location known as station 100+15. 27 37. On or about February 3,2003,prior to beginning field work on the Project,a field 28 meeting was held between,among others,EBMUD,Modern Continental,EBMUD,KMI,KMEP, First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 7 I SFPP,KMGP,COMFORCE and DOES 1-150,and each of them. At the conclusion of the 2 meeting,representatives of EBMUD,KMI,KMEP,SFPP,KMGP,COMFORCE,and DOES 1- 3 150,and each of them,walked the South Broadway portion of the Kinder Pipeline.No fresh field 4 markings were observed and no offsets were marked or painted out around station 100+15 by 5 EBMUD,KMI,KMEP,SFPP,KMGP,COMFORCE or DOES 1-150. As of March 2003,no field 6 markings were visible. 7 38. In or about February 13,2003,a meeting was held between representatives of MCI, 8 KMI,KMEP,SFPP,KMGP and DOES 1-150 in which the attendees specifically addressed the 9 great risk of deadly explosions presented by the operation of excavating equipment in and around 10 high-pressure gasoline pipelines,including the Kinder Pipeline. 11 39. In 2003 or 2004,Modem Continental was performing excavation for the Project 12 when it determined that a segment of the Kinder Pipeline was approximately 13 feet from where it 13 had been field marked by KMI,KMEP,SFPP,KMGP,COMFORCE and DOES 101-150. Modem 14 Continental provided notice of,and expressed concern about this discrepancy to,EBMUD,KMI, 15 KMEP, SFPP,KMGP,COMFORCE and DOES 1-50 and 101-150,among others. 16 .40. In or about August of 2003,EBMUD asked KMI,KMEP,SFPP,KMGP and DOES 17 101-150,and each of them,to relocate a section of the Kinder Pipeline because the pipeline was 18 difficult to locate and a hinderance to the completion of the Project. 19 41. In early 2004,Modem Continental,EBMUD and DOES 1-50,and each of them, 20 were extremely concerned about the location of the Kinder Pipeline because it was in the line of 21 excavation for the Northern Pipeline. At this time,Modern Continental,EBMUD,KMI,KMEP, 22 SFPP,KMGP and DOES 1-50 and 101-150,discussed the location of the Kinder Pipeline and how 23 to continue construction of the Project despite the location of the Kinder Pipeline. 24 42. On or about May 28,2004,EBMUD issued a"Notice of Default Termination"to 25 Modern Continental,terminating its contract with Modem Continental for construction of the 26 Project. 27 43. In August 2004,after terminating its contract with Modern Continental,EBMUD 28 and DOES 1-50 contracted with,among others,MCI and DOES 51-100 to complete construction t ' First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 8 I of the Project. In compliance with the provisions of the Subletting.and Subcontract Fair Practices 2 Act of the California Public Contracts Code,MCI and DOES 51-100,and each of them,thereafter 3 subcontracted with and employed,among others,MATAMOROS. MATAMOROS was employed 4 to weld together segments of the Northern Pipeline,among other things. 5 44. EBMUD's contract with MCI required a field meeting between EBMUD and MCI 6 prior to the start of excavation. This meeting occurred on or about September 28,2004 and was 7 attended by representatives of EBMUD,MCI,KMI,KMEP,SFPP,KMGP,COMFORCE and 8 DOES 1-150,among others. At the meeting,aline rider employed by KMEP,SFPP,KMGP, 9 KMI,COMFORCE,and DOES 1-150,and each of them,represented that line markers were 10 directly over the Kinder Pipeline and that the pipeline ran straight between the markers. Attendees 11 of the meeting walked the entire length of the Kinder Pipeline using a 100-foot tape to indicate the 12 location of the proposed Northern Pipeline and to determine if there would be any conflict or 13 contact with the Kinder Pipeline. i 14 45. Fieldwork on the Project commenced in late September 2004. 15 46. In or about October 2004,benching for the trenching excavator in the area of the 16 offset took place.MCI and DOES 1-150,and each of them,benched over the offset at station 17 100+15.As of November 3 and 4,2004,there were no markings indicating the offset. 18 47. On or about November 5,2004,MCI requested a site meeting with KMI,KMEP, 19 SFPP,KMGP and DOES 1-150.The meeting was held on November 8,2004,and was attended by 20 representatives of,among others,EBMUD,MCI,KMI,KMEP,SFPP,KMGP,COMFORCE and 21 DOES 1-150,and each of them.One purpose of the meeting was to ensure that MCI was 22 excavating properly. At the meeting,MCI did not specifically inquire about the offset at station 23 100+15. No representative of EBMUD,KMI,KMEP,SFPP,KMGP,COMFORCE,and/or DOES 24 1-150 represented anything about the offset. 25 48. On or about November 9,2004,an individual operating an excavation vehicle under 26 the direct supervision and control of EBMUD,MCI,KMI,KMEP,SFPP,KMGP,COMFORCE, 27 and DOES 1-150,and each of them,excavated the trench for the Northern Pipeline on South 28 Broadway,between Newell Avenue and Rudgear Road,in Walnut Creek.This work was Rrst Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 9 I performed was immediately adjacent to plaintiffs'residence at 2053 Doris Avenue. 2 49. At the same time as this excavation was taking place,MATAMOROS WELDING 3 and its employees were performing welding work in the immediate vicinity of the excavation work. 4 50. On or about November 9,2004,MCI and DOES 51-1.00 and 201-250,and each of 5 them,operated an excavation vehicle to excavate the trench for the Northern Pipeline. The 6 excavation vehicle punctured the Kinder Pipeline,tearing a hole in the pipeline and causing 7 flammable gasoline within the pipeline to escape and shoot through the trench. 8 51. The performance of welding operations by MATAMOROS in the immediate 9 vicinity of the penetration of the pipeline and release of gasoline products caused the ignition of the 10 gasoline from the Kinder Pipeline. This ignition triggered an explosion which created a fireball 1 I over 90 feet in height. 12 52. The explosion and fire immediately spread to plaintiffs'residence,causing the 13 immediate catastrophic destruction of plaintiffs'home and real and personal property. The 14 explosion and resulting damage rendered plaintiffs'property uninhabitable and rendered plaintiffs 15 homeless. 16 53. The explosion and fire also caused the deaths of several workers on the Project and 17 serious injuries to a number of other workers. Hazardous chemicals and debris from the explosion 18 were spread onto plaintiffs'property by the force of the explosion. 19 54. On and prior to November 9,2004,defendants KMI,KMEP,SFPP,KMGP and 20 DOES 101-150 were directly involved in numerous instances of misconduct related to the 21 operation,maintenance and use of their pipelines. The events and occurrences resulted in the 22 substantial destruction of property and/or contamination of property,among other harms. 23 55. KMI,KMEP,SFPP,KMGP and DOES 101-150,and each of them,own a 45 24 percent interest in the Cochin Pipeline System,a 1900 mile natural gas pipeline operating n the 25 United States and Canada. On or about July 16,2003,the pipeline ruptured,igniting a fire at a 26 location approximately 75 miles east of Fargo,North Dakota. 27 56. On or about July 30,2003,a pipeline owned and/or operated by KMI,KIVIEP, 28 SFPP,KMGP and DOES 101-150,and each of them,ruptured in a residential subdivision in First Amended Complaint for Damages for Negligence,et at.-JURY TRIAL DEMANDED Page 10 f� 1 Tuscon,Arizona. Gasoline was sprayed more than 50 feet into the air,saturating five homes and 2 contaminating the soil and groundwater. 3 57. On or about April 29,2004,a pipeline owned and/or operated by KMI,KMEP, 4 SFPP,KMGP and DOES 101-150,and each of them,which transported gasoline,jet fuel and 5 diesel fuel to Chico,Sacramento and Reno experienced a rupture. The rupture caused 6 approximately 42,000 gallons of diesel fuel to spill onto and damage approximately 250 acres of 7 the Suisun Marsh,a Northern California wetland.A managing agent of defendants responded to 8 criticism of defendants'delayed response by stating:"You can't cry wolf every time you see an 9 anomaly." 10 58. In addition,on or about November 22,2004,a pipeline owned/operated by KMI, 11 KMMP,SFPP,KMGP and DOES 101-150 which transports gasoline from Colton and Barstow, 12 California to Las Vegas,Nevada experienced a rupture near Baker,California. California Highway 13 Patrol officers on nearby Interstate 15 noticed a strong odor and closed the freeway,which led to 14 discovery of a 50 to 60 foot tall gasoline vapor geyser. 15 59. In the six years immediately preceding November 9,2004,MCI and DOES 51-100, 16 and each of them,committed numerous safety violations and were issued several citations from the 17 California Department of Occupational Safety and Health for workplace accidents which resulted 18 in death.or injury. These events included,without limitation,the death of a worker crushed by a 19 pipe,the death of a worker when a crane he tried to operate without training collapsed and smashed 20 against a pipe,severe lung damage suffered by three workers when overcome by poisonous gases, 21 and injury to a worker whose leg was crushed between two trucks. 22 60. On or about May 5,2005,after investigating the events of November 9,2004,the 23 California Department of Occupational Safety and Health issued two Serious Willful Citations to 24 KMEP for violation of California Code of Regulations sections 1541(b)(1)and 1511(b). KMEP 25 was fined$140,000,based on the Department's determination that KMEP committed an intentional 26 and knowing violation of such regulations and/or was aware that a hazardous condition existed and 27 made no reasonable effort to eliminate the hazard. 28 61. The California Department of Occupational Safety and Health also issued one First Amended Cot» lain or Dama es or Negligence,et al-JURY MAL DEMANDED Pae 11 p l g t g I Serious Citation to CAROLLO for violation of California Code of Regulations section 1511(b), 2 and fined CAROLLO$22,500. 3 62. The Department issued one Serious Citation to MCI for violation of California Code 4 of Regulations section 1511(b)and fined MCI$22,500. 5 63. The Department issued one Serious Citation to EBMUD for violation of California 6 Code of Regulations section 1511(b)and fined EBMUD$6,750. 7 64. With respect to CAROLLO,MCI,and EBMUD,the Department determined that,as 8 of November 9,2004, there was a substantial probability that death or serious physical harm could 9 result from the conditions which existed at Project and/or from the practices,operations or 10 processes of said defendants at the workplace. 11 65. The November 9,2004 explosion and fire destroyed plaintiffs'home,rendering 12 plaintiffs homeless. 13 66. Plaintiffs were percipient witnesses of the explosion and smoke created by the 14 explosion and the burning of their home. They personally witnessed their home being destroyed by 15 the fire which resulted from the explosion. 16 67. Plaintiffs'residence was their retirement home and a source of great pride,comfort 17 and financial security to plaintiffs. Since November 9,2004,plaintiffs have been without their 18 residence and have not been able to rebuild or return to their home. 19 68. In addition to the destruction of their home,plaintiffs suffered the loss of and ; 20 destruction of their personal property,including the loss of a lifetime's worth of unique and 21 irreplaceable property having great personal and sentimental value to plaintiffs. 22 69. Plaintiffs are informed and believe and thereon allege that their lot,trees and other 23 real property have been damaged by the fire,smoke,gasoline and other toxic chemical agents 24 released and/or created by the rupture of the pipeline and the ensuing explosion. Accordingly, 25 plaintiffs will have to incur expenses to investigate,respond to,remediate and clean up such 26 damage and return the property to its prior undamaged condition. 27 70. The catastrophic loss of plaintiffs'home and personal property has caused,and 28 continues to cause,plaintiffs severe and lasting emotional,physical and bodily injury,distress and first Amended Complaint for Damages far Negligence,et al.-JURY TRIAL DEMANDED Pae 12 r 8 8 I pain and suffering. Plaintiffs have lost their sanctuary,the retirement home and their most 2 significant personal investment. They have lost forever property having great personal and 3 sentimental value to them. As a result of defendants'conduct,plaintiffs,and each of them,have 4 suffered and continue to suffer great stress,anxiety,uncertainty,fear and depression. 5 FIRST CAUSE OF ACTION 6 NEGLIGENCE 7 (As Against EBMUD and DOES 1-50,Inclusive) 8 71. Plaintiffs hereby incorporate by reference each and every allegation contained in 9 paragraphs 1 through 70,as though fully set forth herein. 10 72. At all times relevant herein,EBMUD and DOES 1-50,inclusive,and each of them, 11 were engaged in the business of planning,designing,owning,supervising,controlling and 12 constructing the Project and the Northern Pipeline. EBMUD had an employee(s)or 13 representative(s)at the Project site to exercise control and supervision of the Project,including 14 surveying control and quality assurance. f 15 73. Because of the dangerous and ultrahazardous nature of the Project,the Kinder 16 Pipeline and contents thereof,and the location of the Kinder Pipeline in the immediate vicinity of 17 the Project,the Northern Pipeline and residential neighborhoods,EBMUD and DOES 1-50, 18 inclusive,had a nondelegable duty under,among other things,OSHA regulations and California 19 statutes and common law,to plan,design,own,supervise,control,survey,and construct the Project 20 in a safe manner so as to ensure the safety of the public and private property in the immediate 21 vicinity of the Project 22 74. At all relevant times herein EBMUD,and DOES 1-50,inclusive,and each of them, 23 breached said nondelegable duty and created a dangerous condition of public property by,among 24 other things: 25 (a) Negligently,carelessly and recklessly hiring MCI,,a contractor known to be 26 negligent and/or incompetent,by EBMUD,DOES 1-50,and others,including without limitation, 27 KMI,KMEP SFPP,KMGP,COMFORCE,and DOES 51-200. Defendants knew or,in the 28 exercise of reasonable care,should have known that MCI was not competent to perform work on First Amended Complaint for Damages for Negligence,et aL-JURY TRIAL DEMANDED Page 13 I the Project,given,among other things,MCI's poor safety record; 2 (b) . Negligently,carelessly and recklessly supervising and exercising control 3 over MCI,KMI,KMEP,SFPP,KMGP,CDM,CAROLLO,COWORCE,MATAMOROS and 4 DOES 51-200,and each of them,in the performance of their work on the Project; 5 (c) Negligently,carelessly and recklessly failing to correctly determine the 6 location of the Kinder Pipeline before allowing MCI,and DOES 51-100 and 151-200,and each of 7 them;to excavate in the area of the Kinder Pipeline.EBMUD was aware of the incursion of the 8 Kinder Pipeline into the Project as evidenced by the maps created by CDM and CAROLLO,and 9 reviewed by EBMUD. EBMUD reviewed the potholing data from the field,and failed to address 10 the missing data regarding the area in the immediate vicinity of the offset and/or request additional 11 data; 12 (d) Negligently,carelessly and recklessly pressuring and requiring MCI,and 13 DOES 51-200,and each of them,to complete their work on the Project in a time frame that was not 14 feasible without endangering property located adjacent to the Project and the safety of persons 15 residing immediately adjacent to the Project,including plaintiffs; 16 (e) Negligently,carelessly and recklessly failing to create,obtain and/or analyze 17 the proper design maps and field marking data,prior to allowing MCI and DOES 51-200,and each 18 of them,to excavate near the Kinder Pipeline; 19 (f) Negligently,carelessly and recklessly failing to obtain the proper permits and 20 other authority to allow for work to be completed by MCI,and DOES 51-200,and each of them,in 21 the vicinity of the Kinder Pipeline; 22 (g) Negligently,carelessly and recklessly performing work,or allowing work to 23 be performed on its behalf,on the Project in the immediate vicinity of the Kinder Pipeline as 24 opposed to another location in Walnut Creek; 25 (h) Negligently,carelessly and recklessly failing to require KMI,KMEP,SFPP 26 KMGP and DOES 101-150,and each of them,to relocate the Kinder Pipeline away from the 27 immediate vicinity of the Northern Pipeline; 28 (i) Negligently,carelessly and recklessly failing to notify MCI and DOES 51- First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 14 1 100,and each of them,of the concerns by other entities working on the Projector who worked on 2 the Project(including,without limitation,Modern Continental,KMI,KMEP,SFPP,KMGP and 3 DOES 51-150)regarding the location of the Kinder Pipeline and its proximity to the Northern 4 Pipeline and the Project; 5 (j) Negligently,carelessly and recklessly failing to require MCI,KMI,KMEP, 6 SFPP,KMGP and DOES 51-200 to proceed with the work around the Kinder Pipeline and 7 Northern Pipeline through safe and acceptable means; 8 (k) Negligently,carelessly and recklessly failing to conduct,or requiring MCI, 9 KMI,KMEP,SFPP,KMGP and DOES 51-150 to conduct daily inspections by competent 10 individual(s)prior to the start of work and as needed throughout the performance of the work for 11 evidence of a situation that could result in dangerous and ultrahazardous conditions,such as that 12 which resulted in the destruction of plaintiffs'residence and other injuries to plaintiffs;and . 13 (1) Negligently,carelessly and recklessly failing to require MCI,KMI,KMGP, 14 KMEP,SFPP and DOES 51-150 to take all reasonable and necessary precautions in the conduct of 15 ultrahazardous activities,so as to ensure the safety of private property and individuals in the 16 immediate vicinity of such activities. 17 75. EBMUD and DOES 1-50,inclusive,acted so as to cause the damage and injuries to 18 plaintiffs and to legally cause the damages described herein. 19 76. EBMUD and DOES 1-50,inclusive,and each of them,knew,or in the exercise or 20 reasonable care should have known,that the conditions at the Project constituted an extremely 21 dangerous condition and presented an unreasonable risk of serious injury to properly and persons in 22 the vicinity of the Project,and that the danger would not be apparent to such persons.There was a 23 substantial probability that serious property damage and injury to persons could result from the 24 conditions. Under the circumstances of this case involving excavation next to a high-pressure fuel 25 pipeline,the conduct of EBMUD and DOES 1-50,inclusive,was an extreme departure from the 26 ordinary standard of conduct and constitutes gross negligence. 27 77. As a direct and legal result of the negligence and/or gross negligence of EBMUD, 28 and DOES 1-50,inclusive,plaintiffs suffered the destruction of their residence and their real and First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page IS I personal property,loss of the use and enjoyment of their home,additional housing expenses and 2 additional economic losses resulting from the destruction of and damage to their property. 3 78. As a further direct and legal result of the negligence and/or gross negligence of 4 EBMUD and DOES 1-50,inclusive,plaintiffs were injured in their health,strength,and activity 5 and suffered substantial,severe and unjustifiable emotional distress and physical and mental pain 6 and suffering. 7 79. The acts of DOES 1-50,inclusive,were despicable,willful,wanton,malicious, 8 oppressive,and/or fraudulent,and justify an award of punitive damages. At all times mentioned 9 herein,DOES 1-50 were guilty of malice,oppression,fraud,and/or a willful and conscious 10 disregard for the rights and safety of plaintiffs. Given the dangerous and ultrahazardous nature of I 1 the work performed on the Project,Kinder Pipeline,and the close proximity of the Kinder Pipeline 12 to the Project,the Northern Pipeline and residential neighborhoods,DOES 1-50,inclusive,and 13 each of them,performed work on the Project with a reckless indifference to and a willful and 14 conscious disregard for the rights and safety of plaintiffs. 15 80. Plaintiffs are entitled to punitive damages against DOES 1-50,inclusive,as 16 corporate,partnership and/or entity defendants because officers,directors,partners and/or 17 managing agents thereof had advance knowledge of the unfitness of its employees and employed or 18 retained them with a conscious disregard of the rights or safety of others,and/or authorized or 19 ratified the wrongful conduct of its agents,employees,representatives,independent contractors, 20 who were acting as officers,directors,partners or managing agents of DOES 51-100,and which 21 officers,directors,partners and/or managing agents were personally guilty of oppression,fraud 22 and/or malice. 23 WHEREFORE,plaintiffs pray for judgment against EBMUD and DOES 1-50,inclusive,as 24 hereinafter set forth. 25 SECOND CAUSE OF ACTION 26 NEGLIGENCE 27 (As Against MCI and DOES 51-100,Inclusive) 28 81. Plaintiffs hereby incorporate by reference each and every allegation contained.in First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 16 1 paragraphs 1 through 80,as though fully set forth herein. 2 82. At all times relevant herein,MCI and DOES 51-100,inclusive,and each of them, 3 were the general contractor(s)and/or subcontractor(s)hired by EBMUD for the Project and were 4 engaged in the construction,supervision,operation and control of the Project. 5 83. Because of the dangerous and ultrahazardous nature of the Project and the Kinder 6 Pipeline,and the location of Kinder Pipeline in close proximity to the Northern Pipeline,the 7 Project and residential neighborhoods,MCI and DOES 51-100,inclusive,had a duty under,among 8 other things,California Department of Safety and Health regulations,California statutes,common 9 law,and contract to supervise,control,operate,survey,and construct the Project in a safe manner 10 to ensure the safety of property in the immediate vicinity of the Project and to ensure the safety of 11 the public,including plaintiffs. 12 84. At all relevant times herein,MCI and DOES 51-100,inclusive,breached said duty 13 by,among other things: t 14 (a) Negligently,carelessly and recklessly hiring,training,retaining and 15 supervising its employees,representatives,agents and independent contractors in the performance 16 of defendants'work on the Project; 17 (b) Negligently,carelessly and recklessly failing to correctly determine the 18 location of the Kinder Pipeline before excavating in the area,and/or allowing DOES 201-250 to 19 excavate in the area of the Northern Pipeline and Kinder Pipeline,pursuant to,among other things, 20 Government Code section 4216.4. MCI was aware of the incursion of the Kinder Pipeline into the 21 Project,by way of the drawings and plans provided to MCI by EBMUD. MCI also was aware of 22 the great risk of death and destruction of property presented by the act of performing excavation 23 work immediately adjacent to a high-pressure fuel pipeline located in a residential neighborhood; 24 (c) Negligently,carelessly and recklessly failing to create,obtain,and/or analyze 25 the proper utility maps showing the location of the Kinder Pipeline prior to excavating and/or 26 allowing DOES 51-200 to excavate in an area immediately adjacent to the Kinder Pipeline; 27 (d) Negligently,carelessly and recklessly failing to obtain the proper permits and i28 other authority to allow for work to be completed in the vicinity of the Kinder Pipeline and First Amended Complaint for Damages for Negligence,et at.-JURY TRIAL DEMANDED Page 17 1 Northern Pipeline; 2 (e) Negligently,carelessly and recklessly failing to require KMI KMGP,KMEP, 3 SFPP and DOES 101-150,to relocate the Kander Pipeline to a location away from the immediate 4 vicinity of the Project; 5 (f) Negligently,carelessly and recklessly failing to inquire as to concerns of 6 other entities working on the Project or who worked on the Project(including among others 7 Modern Continental,EBMUD,KMI,KMGP,KMEP,SFPP and DOES 1-50 and 101-150,and 8 each of them)regarding the location of the Kinder Pipeline to the vicinity of the Project and 9 Northern Pipeline; 10 (g) Negligently,carelessly and recklessly failing to proceed with work around 11 the Kinder Pipeline through safe and acceptable means,pursuant to,among other things, 12 compliance with California Government Code section 4216.4; 13 (h) Negligently,carelessly and recklessly using inappropriate types of 14 excavation equipment in the immediate vicinity of the Kinder Pipeline; 15 (i) Negligently,carelessly and recklessly entering into a mutual agreement with . 16 KMI,KMEP,SFPP,KMGP and DOES 101-150,and each of them,allowing for the use of power- 17 operated or power-driven excavating equipment within the immediate vicinity of the Kinder 18 Pipeline and Northern Pipeline; 19 (j) Negligently,carelessly and recklessly failing to conduct,or requiring others 20 to conduct,competent daily inspections prior to the start of work and as needed throughout the 21 course of the excavation work for evidence of a situation that could result in a dangerous and ' 22 ultrahazardous conditions,such as the conditions which resulted in the explosion and fire which 23 destroyed plaintiffs'home; 24 (k) Negligently,carelessly and recklessly failing to timely contact Underground 25 Service Alert prior to excavating,or allowing excavation,new the Kinder Pipeline and Northern 26 Pipeline,pursuant to,among other things,California Government Code section 4216.2; 27 (1) Negligently,carelessly and recklessly failing to timely notify Underground 28 Service Alert when the field markings for the Kinder Pipeline were no longer visible or useable; l� Frrst Amended Complaint for Damages for Negligence,et at.-JURY TRIAL DEMANDED Page 18 I (m) Negligently,carelessly and recklessly failing to notify Underground Service 2 Alert of the failure of KMI,KMEP,SFPP,KMGP and DOES 101-150 to locate the Kinder 3 Pipeline prior to excavation; 4 (n) Negligently,carelessly and recklessly failing to obtain an inquiry 5 identification number from Underground Services Alert prior to commencing or allowing 6 excavation near the Kinder Pipeline;and 7 (o) Negligently,carelessly and recklessly failing to obtain a revalidation of the 8 inquiry identification number from Underground Service Alert after said number expired. 9 85. The tortious conduct of MCI and DOES 51-100,inclusive,was,among other things, 10 negligent,careless,reckless,grossly negligent and/or despicable. Said despicable conduct was 11 carried on by MCI and DOES 51-100 with a willful and conscious disregard of the rights and/or 12 safety of others,including plaintiffs.Among other things,MCI,and DOES 51-100 were aware of 13 the probable dangerous consequences of their conduct and willfully and deliberately failed to avoid 14 those consequences,which resulted in the injuries to plaintiffs'property and to plaintiffs. 15 86. MCI,and DOES 51-100,inclusive,acted so as to cause the damage and injuries to 16 plaintiffs and to legally cause the damages described herein. 17 87. MCI and DOES 51-100 knew,or in the exercise of reasonable care should have 18 known,that the conditions at the Project and the conditions created by their work presented an. 19 extremely dangerous condition and unreasonable risk of serious injury to those foreseeably in the 20 vicinity of the Project,and that the danger would not be apparent to such persons,including 21 plaintiffs. MCI and DOES 51-100,inclusive,willfully and deliberately failed to avoid these 22 consequences and to protect others,including plaintiffs,from these consequences.Under the 23 circumstances of this case,involving excavation immediately adjacent to the high-pressure Kinder 24 Pipeline,the conduct of MCI and DOES 51-100,inclusive,was an extreme departure from the 25 ordinary standard of care and constitutes gross negligence,malice,and oppression. 26 88. As a direct and legal result of the negligence and/or gross negligence of MCI and 27 DOES 51-100,inclusive,plaintiffs suffered the destruction of their residence and their real and 28 personal property,loss of the use and enjoyment of their home and additional economic losses t First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 19 I resulting from the destruction of and damage to their property. 2' 89. As a further direct and legal result of the negligence and/or gross negligence of MCI 3 and DOES 51-100,inclusive,plaintiffs were injured in their health,strength,and activity and 4 suffered substantial,severe and unjustifiable emotional distress and physical and mental pain and 5 suffering. 6 90. The acts of MCI and DOES 51-100,inclusive,were despicable,willful,wanton, 7 malicious,oppressive,and/or fraudulent,and justify an award of punitive damages. At all times 8 mentioned herein,MCI,its employees,agents,representatives,independent contractors,and DOES 9 51-100 were guilty of malice,oppression,fraud,and/or a willful and conscious disregard for the 10 rights and safety of plaintiffs. Given the dangerous and ultrahazardous nature of the work 11 performed on the Project,Kinder Pipeline,and the close proximity of the Kinder Pipeline to the 12 Project,the Northern Pipeline and residential neighborhoods,MCI,its agents,employees, 13 independent contractors,representatives,and DOES 51-100,inclusive,and each of them, 14 performed work on the Project with a reckless indifference to and a willful and conscious disregard 15 for the rights and safety of plaintiffs. 16 91. Plaintiffs are entitled to punitive damages against MCI and DOES 51-100,inclusive, 17 as corporate defendants because officers,directors and/or managing agents thereof had advance 18 knowledge of the unfitness of its employees and employed or retained them with a conscious 19 disregard of the rights or safety of others,and/or authorized or ratified the wrongful conduct of its 20 agents,employees,representatives,independent contractors,who were acting as officers,directors 21 or managing agents of MCI and DOES 51-100,and which officers,directors and/or managing 22 agents were personally guilty of oppression,fraud and/or malice. 23 WHEREFORE,plaintiffs pray for judgment against MCI and DOES 51-100,inclusive,as 24 hereinafter set forth. 25 THIRD CAUSE OF ACTION 26 NEGLIGENCE 27 (As Against KMI,KMEP,SFPP,KMGP and DOES 101-150,Inclusive) 28 92. Plaintiffs hereby incorporate by reference each and every allegation contained in l First Amended Complaint far Damages for Negligence,et at..-JURY TRIAL DEMANDED Page 20 F� I paragraphs 1 through 90,as though fully set forth herein.' 2 93. At all times relevant herein,KMEP,as a limited partnership,SFPP,as a limited 3 partnership and operating partnership of KMEP,KMGP as a general partner of KMEP,KMI as the 4 parent corporation and owner of KMGP,and DOES 101-150,inclusive,and each of them,were the 5 owners and operators of the Kinder Pipeline. 6 94. Because of the dangerous and ultrahazardous nature of the Project and the Kinder 7 Pipeline,and the location of the Kinder Pipeline immediately adjacent to the Project,the Norther 8 Pipeline and residential neighborhoods,KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive, 9 had a nondelegable duty under,among other things,OSHA regulations and California statutes and 10 common law,to own,supervise,control,survey,and operate the Kinder Pipeline in a safe manner 11 to ensure the safety of the public and property at and immediately adjacent to the Project. 12 95. At all relevant times herein,KMI,KMEP,SFPP,KMGP and DOES 101-150, 13 inclusive,breached their nondelegable duties by,among other things: 14 (a) Negligently,carelessly and recklessly hiring,training,and supervising their 15 employees,agents,representatives,and independent contractors,including,without limitation, 16 COMFORCE,in the performance of the work on the Kinder Pipeline in relation to the Project 17 before allowing EBMUD,MCI,and DOES 1-100 and 201-250,and each of them,to excavate and 18 work in the area of the Kinder Pipeline; 19 (b) Negligently,carelessly and recklessly failing to create,obtain and/or analyze 20 the proper utility maps,plans,and drawings showing the location of the Kinder Pipeline,prior to 21 allowing EBMUD,MCI,and DOES 1-100 and 201-250,and each of them,to excavate and work in 22 the area of the Kinder Pipeline; 23 (c) Negligently,carelessly and recklessly failing to obtain the proper permits and 24 other authority to allow for work to be completed in the vicinity of the Kinder Pipeline and the 25 Norther Pipeline; 26 (d) Negligently,carelessly and recklessly failing to locate and field mark the 27 location of the Kinder Pipeline prior to the excavation and performance of other work by,among 28 others,EBMUD,MCI,MATAMOROS and DOES 1-100 and 201-250,inclusive,in violation of, First Amended ComPlaintfor DamsSesfor Negligence,etat.-JURY TRAL DEMANDED Page 21 l� I among other things,California Government Code section 4216.3; 2 (e) Negligently,carelessly and recklessly failing to relocate the Kinder Pipeline 3 to a location away from the immediate vicinity of the Project and Northern Pipeline; 4 (f) Negligently,carelessly and recklessly failing to address the concerns of 5 entities working on the Project(including among others Modern Continental,EBMUD and DOES 6 1=50,and each of them)regarding the close proximity of the Kinder Pipeline to the Northern 7 Pipeline,and failing to inform MCI and DOES 51-100 and 201-250 of these concerns; 8 (g) Negligently,carelessly and recklessly entering into a mutual agreement with 9 MCI,EBMUD,and DOES 1-100 and 150-200,and each of them,allowing the use of power- 10 operated or power-driven excavating equipment within the vicinity of the Kinder Pipeline and the 11 Project;and 12 (h) Negligently,carelessly and recklessly failing to inspect,or failing to inspect 13 as frequently as necessary,the Kinder Pipeline during work on the Project where,through contact 14 with EBMUD and others,including Modern Continental and DOES 1-100,defendants either knew 15 or should have known that the Kinder Pipeline could be ruptured in the course of excavation work 16 on the Project. 17 96. The conduct of KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,was, 18 among other things,negligent,careless,reckless,grossly negligent and/or despicable. Said 19 despicable conduct was carried on by defendants with willful and conscious disregard of the rights 20 and/or safety of others,including plaintiffs. Among other things,KMI,KMEP,SFPP,KMGP and 21 DOES 101-150,inclusive,were aware of the probable dangerous consequences of their conduct 22 and willfully and deliberately failed to avoid those consequences,which resulted in the injuries and 23 damage to plaintiffs and their property alleged herein. 24 97. KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,acted so as to cause the 25 injuries to plaintiffs and to legally cause the injuries and damages alleged herein. 26 98. KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,knew,or in the exercise 27 of reasonable care should have known,that the conditions at the Project constituted an extremely 28 dangerous and ultrahazardous condition and unreasonable risk of serious injury to persons and First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 22 1 property in the immediate vicinity of the Project and the Kinder Pipeline,and that the danger was 2 not,and would not be,apparent to persons such as plaintiffs. Defendants willfully and deliberately 3 failed to avoid these consequences or protect others,including plaintiffs,from these consequences. 4 Defendants also failed to wam plaintiffs of the great risks of harm presented by their operation of 5 the Kinder Pipeline immediately adjacent to plaintiffs'residence at all times,including,without 6 limitation,during construction operations. Under the circumstances,the conduct of KMI,KMEP, 7 SFPP,KMGP and DOES 101-150,inclusive,and each of them,was an extreme departure from the 8 ordinary standard of conduct,and constitutes gross negligence,willful and deliberate indifference 9 to the rights and safety of others,malice,and oppression. 10 99. As a direct and legal result of the negligence,gross negligence and/or recklessness 11 of KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,plaintiffs suffered the destruction of 12 their residence and their real and personal property,loss of the use and enjoyment of their home 13 and additional economic losses resulting from the destruction of and damage to their property. 14 100. As a further direct and legal result of the negligence,gross negligence and/or l 15 recklessness of KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,plaintiffs were injured 16 in their health,strength,and activity and suffered substantial,severe and unjustifiable emotional 17 distress and physical and mental pain and suffering. 18 101. The acts and omissions of KMI,KMEP,SFPP,KMGP and DOES 101-150, 19 inclusive,were willful,wanton,malicious,oppressive,despicable,and/or fraudulent,and justify an 20 award of punitive damages.At all times herein,KMI,KN EP,SFPP,KMGP and.their employees, 21 agents,representatives and independent contractors,and DOES 101-150,inclusive,were guilty of 22 malice,oppression,fraud,and/or acted with a willful and conscious disregard for the rights and 23 safety of plaintiffs. Given the dangerous and ultrahazardous nature of the work performed on the 24 Project,and the close proximity of the Kinder Pipeline to the Project,the Northern Pipeline and 25 residential neighborhoods,defendants acted in connection with the Project with a reckless 26 indifference and willful and conscious disregard for the rights and safety of plaintiffs and others. 27 102. Plaintiffs are entitled to punitive damages against KMI,KMEP,SFPP,KMGP and 28 DOES 101-150,inclusive,and each of them.Plaintiffs are informed and believe and thereon allege First Amended Complain!for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 23 I that one or more officers,directors and/or managing agents of defendants had advance knowledge 2 of the unfitness of its employees and employed or retained them with a conscious disregard of the 3 rights and/or safety of others,including plaintiffs. Defendants authorized or ratified the wrongful 4 conduct of their agents,employees,representatives,independent contractors,who were acting as 5 officers,directors and/or managing agent of defendants,and which officers,directors and/or 6 managing agents were personally guilty of oppression,fraud and/or malice. 7 WHEREFORE,plaintiffs pray for judgment against KMI,KMEP,SFPP,KMGP and DOES 8 101-150,inclusive,as hereinafter set forth. 9 FOURTH CAUSE OF ACTION 10 NEGLIGENCE I 1 (As Against COMFORCE and DOES 101-150,Inclusive) 12 103. Plaintiffs hereby incorporate by reference each and every allegation contained in 13 paragraphs 1 through 102,as though fully set forth herein. 14 104. At all times relevant herein,COMFORCE and DOES 101-150,inclusive,were 15 engaged in performing pipeline location and protection and/or other construction service work 16 pursuant to a contract,subcontract and/or other agreement or relationship with KMI,KMEP,SFPP 17 and/or KMGP and DOES 101-150,and each of them. 18 105. Because of the dangerous and ultrahazardous nature of the Project and the Kinder 1.9 Pipeline,and the location of the Kinder.Pipeline immediately adjacent to the Project,the Northern 20 Pipeline and residential neighborhoods,COMFORCE and DOES 101-150,inclusive,had a 21 nondelegable duty under,among other things,OSHA regulations and California statutes and 22 common law,to own,supervise,control,survey,and operate the Kinder Pipeline in a safe manner 23 to ensure the safety of the public and property at and immediately adjacent to the Project. 24 106. At all relevant times herein,COMFORCE and DOES 101-150,inclusive,breached 25 their nondelegable duties by,among other things: 26 (a) Negligently,carelessly and recklessly performing their work,including, 27 without limitation,the location and/or protection of the Kinder Pipeline in relation to the Project 28 before allowing EBMUD,MCI,and DOES 1-100 and 201-250,and each of them,to excavate and Fist Amended Complaint for Damages for Negligence,et al.-JURY TIDAL DEMANDED Page 24 I work in the area of the Kinder Pipeline; 2 (b) Negligently,carelessly and recklessly failing to create,obtain and/or analyze 3 the proper utility maps,plans,and drawings showing the location of the Kinder Pipeline,prior to 4 allowing EBMUD,MCI,and DOES 1-100 and 201-250,and each of them,to excavate and work in 5 the area of the Kinder Pipeline; 6 (c) Negligently,carelessly and recklessly failing to obtain the proper permits and 7 other authority to allow for work to be completed in the vicinity of the Kinder Pipeline and the 8 Northern Pipeline; 9 (d) Negligently,carelessly and recklessly failing to locate and field mark the 10 location of the Kinder Pipeline prior to the excavation and performance of other work by,among 11 ;others,EBMUD,MCI,MATAMOROS and DOES 1-100 and 201-250,inclusive,in violation of, 12 among other things, California Government Code section 4216.3; 13 (e) Negligently,carelessly and recklessly failing to address the concerns of 14 entities working on the Project(including among others Modem Continental,EBMUD and DOES 15 1-50,and each of them)regarding the close proximity of the Kinder Pipeline to the Northern 16 Pipeline,and failing to inform MCI and DOES 51-I00 and 201-250 of these concerns; 17 (f) Negligently,carelessly and recklessly entering into a mutual agreement with 18 MCI,EBMUD,and DOES 1-100 and 150-200,and each of them,allowing the use of power- 19 operated or power-driven excavating equipment within the vicinity of the Kinder Pipeline and the 20 Project;and 21 (g) Negligently,carelessly and recklessly failing to inspect,or failing to inspect 22 as frequently as necessary,the Kinder Pipeline during work on.the Project where,through contact 23 with EBMUD and others,including Modem Continental and DOES 1-100,defendants either knew 24 or should have known that the Kinder Pipeline could be ruptured in the course of excavation work 25 on the Project. 26 107. The conduct of COMFORCE and DOES 101-150,inclusive,was,among other 27 things,negligent,careless,reckless,grossly negligent and/or despicable. Said despicable conduct 28 was carried on by defendants with willful and conscious disregard of the rights and/or safety of �" first Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 25 I others,including plaintiffs. Among other things,COMFORCE and DOES 101-150,inclusive, 2 were aware of the probable dangerous consequences of their conduct and willfully and deliberately 3 failed to avoid those consequences,which resulted in the injuries and damage to plaintiffs and their 4 property alleged herein. 5 108. COMFORCE and DOES 101-150,inclusive,acted so as to cause the injuries to 6 plaintiffs and to legally cause the injuries and damages alleged herein. 7 109. COMFORCE and DOES 101-150,inclusive,knew,or in the exercise of reasonable 8 care should have known,that the conditions at the Project constituted an extremely dangerous and 9 ultrahazardous condition and unreasonable risk of serious injury to persons and property in the 10 immediate vicinity of the Project and the Kinder Pipeline,and that the danger was not,and would 11 not be,apparent to persons such as plaintiffs. Defendants willfully and deliberately failed to avoid 12 these consequences or protect others,including plaintiffs,from these consequences. Under the 13 circumstances,the conduct of COMFORCE and DOES 101-150,inclusive,and each of them,was 14 an extreme departure from the ordinary standard of conduct,and constitutes gross negligence, 15 willful and deliberate indifference to the rights and safety of others,malice,and oppression. 16 110. Asa direct and legal result of the negligence,gross negligence and/or recklessness 17 COMFORCE and DOES 101-150,inclusive,plaintiffs suffered the destruction of their residence 18 and their real and personal property,Ioss of the use and enjoyment of their home and additional 19 economic losses resulting from the destruction of and damage to their property. 20 111. As a further direct and legal result of the negligence,gross negligence and/or 21 recklessness of COMFORCE and DOES 101-150,inclusive,plaintiffs were injured in their health, 22 strength,and activity and suffered substantial,severe and unjustifiable emotional distress and 23 physical and mental pain and suffering. 24 112. The acts and omissions of COMFORCE and DOES 101-150,inclusive,were 25 willful,wanton,malicious,oppressive,despicable,and/or fraudulent,and justify an award of 26 punitive damages.At all times herein,COMFORCE and their employees,agents,representatives 27 and independent contractors,and DOES 101-150,inclusive,were guilty of malice,oppression, 28 fraud,and/or acted with a willful and conscious disregard for the rights and safety of plaintiffs. 1 First Amended Complaint for Damages for Negligence,et at.-JURY TRIAL DEMANDED Page 26 t� I Given the dangerous and ultrahazardous nature of the work performed on the Project,and the close 2 proximity of the Kinder Pipeline to the Project,the Northern Pipeline and residential 3 neighborhoods,defendants acted in connection with the Project with a reckless indifference and 4 willful and conscious disregard for the rights and safety of plaintiffs and others. 5 113. Plaintiffs are entitled to punitive damages against COMFORCE and DOES 101-1.50, 6 inclusive,and each of them.Plaintiffs are informed and believe and thereon allege that one or more 7 officers,directors and/or managing agents of defendants had advance knowledge of the unfitness of 8 its employees and employed or retained them with a conscious disregard of the rights and/or safety 9 of others,including plaintiffs. Defendants authorized or ratified the wrongful conduct of their 10 agents,employees,representatives,independent contractors,who were acting as officers,directors 1 I and/or managing agent of defendants,and which officers,directors and/or managing agents were 12 personally guilty of oppression,fraud and/or malice. 13 WHEREFORE,plaintiffs pray for judgment against COMFORCE and DOES 101-150, 14 inclusive,as hereinafter set forth. 15 FIFTH CAUSE OF ACTION 16 NEGLIGENCE 17 (As Against MATAMOROS and DOES 51-100,Inclusive) 18 114. Plaintiffs hereby incorporate by reference each and every allegation contained in 19 paragraphs 1 through 113,as though fully set forth herein. -20 115. At all times relevant herein,MATAMOROS and DOES 51-100,inclusive,were 21 engaged in performing welding work and services on the Project pursuant to a contract and/or 22, subcontract with MCI,EBMUD and DOES 1-100,and each of them. MATAMOROS was and is 23 at all relevant times a licensed contractor specializing in pipeline welding and/or other pipeline 24 construction and/or fabrication work. 25 116. Because of the dangerous and ulhahazardous nature of the Project,and the location 26 of the Kinder Pipeline immediately adjacent to the Project,the Northern Pipeline and residential 27 neighborhoods,the Northern Pipeline and residential neighborhoods,MATAMOROS and DOES 28 51-100,inclusive,and each of them,had a nondelegable duty under,among other things,California t� Fist Amended Complaint for Damages for Negligence,el at.-JURY TRIAL DEMANDED Page 27 I Department of Safety and Health regulations,California statutes,common law and contract,to 2 construct,fabricate and perform work on the Project in a safe manner in order to ensure the safety 3 of private property and of the public,including plaintiffs. 4 117. At all relevant times herein,MATAMOROS and DOES.51-100,inclusive,and each 5 of them,breached said duty by,among other things: 6 (a) Negligently,carelessly and recklessly performing pipeline welding and other 7 fabrication work which included the use of flames and intense heat,in the immediate vicinity of the 8 Kinder Pipeline,a high-pressure gasoline and jet fuel pipeline; 9 (b) Negligently,carelessly and recklessly hiring,training,and supervising their 10 employees,agents,representatives,and independent contractors to perform work on the Project 11 without providing the requisite training and supervision for the dangerous and ultrahazardous 12 activities being performed by defendants at the time of the incident; 13 (c) Negligently,carelessly and recklessly failing to perform their work away + 14 from and outside the presence of known hazards,including,but not limited to,a high-pressure fuel 15 pipeline and excavation activities performed with heavy machinery,or otherwise securing the work 16 area from such hazards prior to commencing work on the Project;and 17 (d) Negligently,carelessly and recklessly failing to advise others on the Project, 18 including,without limitation,EBMUD,MCI,KMI,KMEP,SFPP,KMEP,COMFORCE and 19 DOES 1-50 and 101-200 of the dangerous and ultrahazardous nature of their welding and 20 fabrication activities in close proximity to the Kinder Pipeline and other ultrahazardous activities 21 being performed at the Project.site. 22 118. The tortious conduct of MATAMOROS and DOES 51-100,inclusive,and each of 23 them,was,among other things,negligent,careless,reckless and/or grossly negligent. The conduct 24 of MATAMOROS and DOES 51-100,inclusive,was carried on negligently and/or recklessly,and 25 resulted in the destruction of plaintiffs'property and injury to plaintiffs. 26 119. MATAMOROS and DOES 51-100,inclusive,acted so as to cause the injuries to 27 plaintiffs and to legally cause the injuries and damages alleged herein. 28 120. MATAMOROS and DOES 51-100,inclusive,knew,or in the exercise of reasonable l First Amended Complaint for Damages for Negligence,et at-JURY TRIAL DEMANDED Page 28 l� I care should have known,that,given the conditions of the Project,their work on the Project created 2 extremely dangerous and ultrahazardous conditions and an unreasonable risk of serious injury to 3 persons and property in the immediate vicinity of the Project and the Kinder Pipeline,and that the 4 danger was not,and would not be,apparent to persons such as plaintiffs. Defendants willfully and 5 deliberately failed to avoid these consequences and failed to protect others,including plaintiffs, 6 from these consequences. Defendants also failed to warn plaintiffs of the great risks of harm 7 presented by the performance of their work immediately adjacent to the Kinder Pipeline and to 8 plaintiffs'residence. 9 121. Asa direct and legal result of the negligence,gross negligence and/or recklessness 10 of MATAMOROS and DOES 51-100,inclusive,plaintiffs suffered the destruction of their 11 residence and their real and personal property,loss of the use and enjoyment of theii home and. 12 additional economic losses resulting from the destruction of and damage to their property. 13 122. As a further direct and legal result of the negligence,gross negligence and/or 14 recklessness of MATAMOROS and DOES 51-100,inclusive,plaintiffs were injured in their 15 health,strength,and activity and suffered substantial,severe and unjustifiable emotional distress 16 and physical and mental pain and suffering. 17 WHEREFORE,plaintiffs pray for judgment against MATAMOROS and DOES 51-100, 18 inclusive,as hereinafter set forth. 19 SIXTH CAUSE OF ACTION 20 NEGLIGENCE 21 ( s Against CDM,CAROLLO and DOES 1-50,Inclusive) 22 123. Plaintiffs hereby incorporate by reference each and every allegation contained in 23 paragraphs 1 through 122,as though fully set forth herein. 24 I24. At all times relevant herein,CDM,CAROLLO and DOES 1-50,inclusive,and each 25 of them,were engaged in the business of planing and designing the Project.CDM,CAROLLO 26 and DOES 1-50,inclusive,and each of them,provided their drawings and plans for the Project to 27 EBMUD,among others. 28 125. Because of the dangerous and ultrahazardous nature of the Project,and the location First Amended Complaint for Damages for Negligence,et at.-JURY TRIAL DEMANDED Page 29 I of the Kinder Pipeline immediately adjacent to the Project,the Northern Pipeline and residential 2 neighborhoods,CDM,CAROLLO and DOES 1-50,inclusive,had a nondelegable duty under, 3 among other things,California Department of Safety and Health regulations,California statutes, 4 common law and contract,to plan and design the Project in a safe manner so as to ensure the safety 5 of private property and of the public,including plaintiffs,during the construction and fabrication of 6 the Project. 7 126. At all relevant times herein,CDM,CAROLLO and DOES 1-50,inclusive,and each 8 of them,breached said nondelegable duty by,among other things: 9 (a) Negligently,carelessly and recklessly preparing and designing the plans and 10 maps for the Project.CDM,CAROLLO,and DOES 1-50,inclusive,were aware of the incursion of 11 the Kinder Pipeline into the path of the Project,as evidenced by their drawings; 12 (b) Negligently,carelessly and recklessly failing to evaluate the need for 13 redesign of the Project at the time they became aware of and discovered the proximity of the Kinder 14 Pipeline to the proposed Northern Pipeline,and the incursion of the Kinder Pipeline into the 15 Project; 16 (c) Negligently,carelessly and recklessly failing to address the missing data,or, 17 alternative,request additional data after reviewing the potholing data derived from field data in the 18 vicinity of station 100+15;and 19 (d) With respect to CDM and DOES 1-50,negligently,carelessly and recklessly 20 entering into a subcontract with CAROLLO regarding the portion of the Project at issue in this 21 lawsuit. 22 127. The tortious conduct of CDM,CAROLLO and DOES 1-50,inclusive,was,among 23 other things,negligent,careless,reckless,grossly negligent and/or despicable. The despicable 24 conduct of defendants was carried on with a willful and conscious disregard of the rights and/or 25 safety of property and the public,including,but not limited to,plaintiffs. Among other things, 26 CDM,CAROLLO and DOES 1-50,inclusive,were aware of the probable dangerous consequences 27 of their conduct and willfully and deliberately failed to avoid those consequences,which resulted in 28 the destruction of plaintiffs'property and injuries to plaintiffs. l First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 30 1 128. CDM,CAROLLO and DOES 1-50,inclusive,and each of them,acted so as to cause 2 the injuries to plaintiffs and to legally cause the injuries and damages herein described. 3 129. CDM,CAROLLO and DOES 1-50,inclusive,knew,or in the exercise of reasonable 4 care should have known,that the conditions at the Project site,including the Kinder Pipeline,and 5 the conditions to be created in construction performed according to their plans and drawings, 6 constituted an extremely dangerous condition and presented an unreasonable risk of serious injury 7 to all persons and property in the immediate vicinity,and that the danger would not be apparent to 8 persons such as plaintiffs.CDM,CAROLLO and DOES 1-50,inclusive,willfully and deliberately 9 failed to avoid these consequences and/or protect persons or property from those consequences. 10 Under these circumstances of performing excavation immediately adjacent to the high-pressure I 1 Kinder Pipeline,the conduct of CDM,CAROLLO,and DOES 1-50,inclusive,and each of them, 12 constituted an extreme departure from the ordinary standard of conduct,and constitutes gross 13 negligence,malice,and oppression. 14 130. As a direct and legal result of the negligence,gross negligence and/or recklessness 1 15 of CDM,CAROLLO and DOES 101-150,inclusive,plaintiffs suffered the destruction of their 16 residence and their real and personal property,loss of the use and enjoyment of their home and 17 additional economic losses resulting from the destruction of and damage to their property. 18 131. Asa further direct and legal result of the negligence,gross negligence and/or 19 recklessness of CDM,CAROLLO and DOES 101-150,inclusive,plaintiffs were injured in their 20 health,strength,and activity and suffered substantial,severe and unjustifiable emotional distress 21 and physical and mental pain and suffering. 22 132. The above-alleged acts of CDM,CAROLLO,and DOES 1-50,inclusive,were 23 willful,wanton,malicious,oppressive,despicable,and/or fraudulent,and justify an award of 24 punitive damages. At all times mentioned herein,CDM,CAROLLO and DOES 1-50,their 25 employees,agents,representatives,independent contractors,inclusive,and each of them,were 26 guilty of malice,oppression,fraud,and/or a willful and conscious disregard of the rights and safety 27 of plaintiffs.Given the dangerous and ultrahazardous nature of the work to be performed on the 28 Project,the Kinder Pipeline,and the close proximity of the Kinder Pipeline to the Project,the First Amended Complaint for Damages for Negligence,et al,-JURY TRIAL DEMANDED Page 31 I Northern Pipeline and residential neighborhoods,CDM,CAROLLO and DOES 1-50,their agents, 2 employees,independent contractors,representatives,performed work on the Project with a reckless 3 indifference and willful and conscious disregard for the rights and safety of plaintiffs. 4 133. Plaintiffs are entitled to punitive damages against CDM,CAROLLO,and DOES 1- 5 50,inclusive,as corporate defendants because an officer,director or managing agent thereof,had 6 advance knowledge of the unfitness of its employees and employed or retained them with a 7 conscious disregard of the rights or safety of others,authorized or ratified the wrongful conduct of 8 its agents,employees,representatives,independent contractors,who were acting as an officers, 9 directors and/or managing agents of defendants,and which officers,directors or managing agents 10 were personally guilty of oppression,fraud,and/or malice. I 1 WHEREFORE,plaintiffs pray for judgment against CDM,CAROLLO and DOES 1-50, 12 inclusive,-as hereinafter set forth. 13 SEVENTH CAUSE OF ACTION 14 STRICT LIABILITY 15 (As Against KMI,KMEP,SFPP,KMGP and DOES 101-150,Inclusive) 16 134. Plaintiffs hereby incorporate by reference each and every allegation contained in 17 paragraphs 1 through 134,as though fully set forth herein. 18 135. KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,and each of them, 19 designed,manufactured,sold,owned,controlled,operated,maintained,inspected,distributed, 20 transported,located,field marked,monitored,and managed the Kinder Pipeline and the 21 ultrahazardous flammable materials contained therein. 22 136. Such activities create the existence of a high degree of risk of harm to the real and 23 personal property of others and the safety of the public. Such activities create the likelihood that 24 harm that results from such activities will be great. The activities of defendants were and are 25 highly inappropriate to the surrounding residential neighborhoods and highly populated 26 communities wherein they were carried on,such that their value to such communities is 27 outweighed by their dangerous attributes. 28 137. Because of the dangerous and ultrahazardous nature and condition of the Kinder First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 32 I Pipeline and contents contained therein,and the location of the Kinder Pipeline in the immediate 2 vicinity of the Project,Northern Pipeline and residential neighborhoods,defendants KMI,KMEP, 3 SFPP,KMGP and DOES 101-150,inclusive,had a nondelegable duty to own,supervise,control, 4 operate,manage,locate,field marked,monitor,and inspect the Kinder Pipeline accurately and in a 5 safe manner to ensure the safety of the public and privately-owned property located immediately 6 adjacent to the Kinder Pipeline. 7 138. Thereat and personal property of plaintiffs was destroyed by the acts and omissions 8 of defendants,as herein alleged. Plaintiffs also suffered,and continue to suffer,severe and lasting 9 emotional and physical distress and pain and suffering as a result of defendants'acts and omissions. 10 139. The acts and omissions of Klvff KMEP,SFPP,KMGP and DOES 101-I50,and 11 each of them,were a substantial factor in causing the damages and injuries alleged.The harm to 12 plaintiffs was of the kind that would be anticipated as a result of the risk created by owning, 13 supervising,controlling,operating,managing,locating,field marking,monitoring,and inspecting a 14 high-pressure hazardous materials pipeline through a residential neighborhood and through a 15 densely populated community. 16 140. KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,caused the property 17 damage and personal injury to plaintiffs and legally caused the injuries and damages alleged herein. 18 141. As a direct legal result of the dangerous and ultrahazardous conditions designed, 19 manufactured,sold,owned,controlled,operated,maintained,inspected,distributed,transported, 20 located,field marked,monitored,and managed by KMi,KMEP,SFPP,KMGP and DOES 101- 21 150,inclusive,plaintiffs incurred damage to their real and personal property and consequential 22 economic damages in an amount according to proof at trial. 23 142. The above-alleged acts of KMI,KMEP,SFPP,KMGP and DOES 101-150, 24 inclusive,were willful,wanton,malicious,despicable,oppressive,and/or fraudulent and thereby 25 justify an award of punitive damages.At all times mentioned herein,KMI,KMEP,SFPP,KMGP, 26 their employees,agents,representatives,independent contractors,and DOES 101-150,inclusive, 27 and each of them,were guilty of malice,oppression,fraud,and/or a willful and conscious disregard 28 for the rights and safety of plaintiffs. Given the dangerous and ultrahazardous nature of the Kinder First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 33 I Pipeline,and the close proximity of the Kinder Pipeline to the Project,the Northern Pipeline and 2 residential neighborhoods,KMI,KMEP,SFPP,KMGP,their employees,agents,representatives, 3 independent contractors,and DOES 101-150,inclusive,operated and maintained the Kinder 4 Pipeline with a reckless indifference and willful and conscious disregard for the rights and safety of 5 plaintiffs. 6 143. Plaintiffs are entitled to punitive damages against KMEP,SFPP,KMGP,and KMI, 7 and DOES 101-150,inclusive,as corporate defendants because one or more officers,directors 8 and/or managing agents thereof had advance knowledge of the unfitness of their employees and 9 employed or retained them with a conscious disregard of the rights or safety of others,and 10 authorized or ratified the wrongful conduct of their agents,employees,representatives,independent 11 contractors,who were acting as officers,directors or managing agents of defendants,and which 12 officers,directors and/or managing agents were personally guilty of oppression,fraud,and/or 13 malice. 14 WHEREFORE,plaintiffs pray for judgment against KMI,KMEP,SFPP,KMGP and DOES 15 101-150,inclusive,and each of them,as hereinafter set forth. 16 EIGHTH CAUSE OF ACTION 17 NEGLIGENT OPERATION OF MOTOR VEHICLE 18 (As Against MCI and DOES 201-250,Inclusive) 19 144. Plaintiffs hereby incorporate by reference each and every allegation contained in 20 paragraphs I through 142,as though fully set forth herein. 21 145. On November 9,2004,defendant MCI,through its employee,was operating an 22 excavation vehicle at the Project in close proximity the Kinder Pipeline. Said vehicle struck and 23 ruptured the Kinder Pipeline,causing the release of pressurized fuel and an ensuing fire and 24 explosion. 25 146. Plaintiffs,and each of them,are ignorant of the true:name and capacity of the drivers 26 or operators of the excavation vehicle which struck the Kinder Pipeline,and therefore sues such 27 defendants as DOES 151-200.Plaintiffs will amend this complaint to allege the operators'true 28 names and capacities when such information is ascertained.Plaintiffs are informed and believe,and first Amended Complaint for Damages for Negligence.et al.-JURY TRIAL DEMANDED Page 34 I on that basis allege,that each of said fictitiously named defendants are responsible in some manner 2 for the occurrences herein alleged,and that the injuries herein alleged were proximately caused by 3 such persons'conduct. 4 147. MCI and DOES 151-200 were the drivers and/or operators of the backhoe vehicle 5 which struck the Kinder Pipeline,causing the flammable material within to escape.At all times 6 relevant times herein,MCI and DOES 201-250 negligently and carelessly drove,operated or 7 controlled the excavation vehicle so as to cause it to strike the Kinder Pipeline. 8 148. MCI and DOES 151-200,and each of them,were permissive users of the excavation 9 backhoe vehicle which struck the Kinder Pipeline. 10 149. MCI and DOES 151-200,inclusive,acted negligently,carelessly,and recklessly so 11 as to cause the damage to plaintiffs'real and personal property and the severe emotional and 12 physical distress to plaintiffs herein alleged. 13 150. MCI and DOES 151-200,inclusive,knew,or in the exercise of reasonable care 14 should have known,that the conditions constituted an extremely dangerous condition and 15 unreasonable risk of catastrophic property damage and serious injury or death to those who would 16 foreseeably be in the vicinity of the Project,the Kinder Pipeline and the activities performed by 17 defendants on the Project. Defendants also knew or should have known that the danger would not 18 be apparent to persons such as plaintiffs. Under these circumstances,the conduct of MCI and 19 DOES 151-200,inclusive,was an extreme departure from the ordinary standard of conduct,and 20 constitutes gross negligence. 21 151. The tortious conduct of MCI and DOES 151-200,inclusive,was,among other 22 things,negligent,careless,reckless,grossly negligent,and/or despicable.The despicable conduct 23 was carried on by MCI and DOES 151-200 with a willful and conscious disregard of the rights 24 and/or safety of others,including but not limited to plaintiffs. MCI and DOES 151-200 were aware 25 of the probable dangerous consequences of their conduct and willfully and deliberately failed to 26 avoid those consequences,which resulted in property damage and emotional and physical injuries 27 to plaintiffs. 28 152. As a direct and legal result of the negligence,gross negligence and/or recklessness First Amended Complaintfor Damages for Negligence,et at.-JURY TRIAL DEMANDED Page 35 I of MCI and 151-200,inclusive,plaintiffs suffered the destruction of their residence and their real 2 and personal property,loss of the use and enjoyment of their home and additional economic losses 3 resulting from the destruction of and damage to their property. . 4 153. As a further direct and legal result of the negligence,gross negligence and/or 5 recklessness of MCI and DOES 151-200,inclusive,plaintiffs were injured in their health,strength, 6 and activity and suffered substantial,severe and unjustifiable emotional distress and physical and 7 mental pain and suffering. 8 154. The acts of MCI and DOES 151-200,inclusive were willful,wanton,malicious, 9 oppressive,despicable,and/or fraudulent,and justify an award of punitive damages.At all times 10 mentioned herein,MCI,DOES 151-200 and their employees,agents,representatives,independent 11 contractors were guilty of malice,oppression,fraud,and/or a willful and conscious disregard for 12 the rights and safety of plaintiffs.Given the dangerous and ultrahazardous nature of the work 13 defendants performed on the Project,and the close proximity of the operations performed by 14 defendants to the Kinder Pipeline and plaintiffs'residence,MCI and DOES 151-200,performed 15 their excavation work on the Project with a reckless indifference and willful and conscious 16 disregard of the rights and safety of plaintiffs. 17 155. Plaintiffs are entitled to punitive damages against MCI and DOES 151-200, 18 inclusive,as corporate defendants because one or more officers,directors or managing agents 19 thereof had advance knowledge of the unfitness of their employees and employed or retained them 20 with a conscious disregard of the rights or safety of others,authorized or ratified the wrongful 21 conduct of their agents,employees,representatives,independent contractors,and which officers, 22 directors and/or managing agents were personally guilty of oppression,fraud,and/or malice. 23 156. Plaintiffs are entitled to punitive damages against DOES 151-200,and each of them, 24 as individuals as such individuals are personally guilty of malice,oppression,and fraud. 25 WHEREFORE,plaintiffs pray for judgment against MCI and DOES 151-200,inclusive,as 26 hereinafter set forth. 27 / / / 28 / / / F'trsl Amended Complaint for Damages for Negligence,el al.-JURY TRIAL DEMANDED Page 36 I NINTH CAUSE OF ACTION 2 VICARIOUS LIABILITY FOR OWNERSHIP OF MOTOR VEHICLE 3 (As Against DOES 201-250,Inclusive) 4 157. Plaintiffs hereby incorporate by reference each and every allegation contained in 5 paragraphs 1 through 156,as though fully set forth herein. 6 158. Plaintiffs are ignorant of the true names and capacities of the owners(s),lessor(s) 7 and/or bailee(s)of the excavation vehicle which struck the Kinder Pipeline,and therefore sue those 8 defendants as DOES 201-250,by such fictitious names. Plaintiffs,and each of them,will amend 9 this complaint to allege the true names and capacities of these defendants when the same have been 10 ascertained. 11 159. Plaintiffs are informed and believe,and on that basis allege,that each of said 12 fictitiously named defendants is responsible and/or liable in some manner for the occurrences 13 herein alleged,and that the damages and injuries sustained by plaintiffs which were proximately 14 caused by defendants' conduct. 15 160. DOES 151,200,and each of them,were the owner(s),lessors(s)or bailee(s)of the 16 excavation vehicle which struck the Kinder Pipeline,causing the flammable material within:the 17 pipeline to escape and ignite,resulting in the fire and explosion which destroyed plaintiffs' 18 residence and real and personal property. 19 161. Plaintiffs axe informed and believed and thereon allege that,at all times relevant 20 herein,the operators of the excavation vehicle,including,without limitation,MCI and DOES 151- 21 200,were using,operating,and/or driving the vehicle with the express and/or implied permission, 22 consent,and knowledge of DOES 201-250,and each of them. 23 162. MCI and DOES 151-200,inclusive,acted negligently,carelessly and recklessly in 24 the operation of the excavation vehicle,so as to cause the property damage and personal injury to 25 plaintiffs herein alleged. By virtue of their ownership,possession and/or control of the excavation 26 vehicle,DOES 201-250 are vicariously liable for the negligent conduct of the operators and 27 permissive users of the subject vehicle. 28 163. As a direct and legal result of DOES 201-250 permitting others to possess,operate First Amended Complaint for Damages for Negligence,et at.-JURY TRIAL DEMANDED Page 37 I and use the excavation vehicle,plaintiffs suffered property damage,including,without limitation, 2 the destruction of their residence and their personal property. As a further direct and legal result of 3 the acts and omissions of DOES 201-205,plaintiffs,and each of them,suffered severe and lasting 4 emotional,mental and physical distress and pain and suffering. 5 WHEREFORE,plaintiffs pray for judgment against DOES 151-200,inclusive,and each of 6 them,as hereinafter set forth. 7 TENTH CAUSE OF ACTION 8 BREACH OF MANDATORY DUTIES IMPOSED BY HEALTH AND SAFETY CODE 9 SECTIONS 13001,13007 AND 13008 10 (Against EBMUD) 11 164. Plaintiffs hereby incorporate by reference each and every allegation contained in 12 paragraphs 1 through 163,as though fully set forth herein. 13 165. At all times relevant herein,plaintiffs owned and possessed the real property, 14 building and fixtures thereon,and personal property located at 2053 Doris Avenue in Walnut 15 Creek. 16 166. The aforementioned real property,building fixtures,and personal property were 17 valued in excess of one million dollars. 18 167. On November 9,2004,defendant EBMUD,directly and by and through its 19 employees,servants,agents,and independent contractors,had exclusive control,possession,and 20 ownership of the Project and the Northern Pipeline and specifically that portion of the Northern 21 Pipeline in a trench within the South Broadway Easement in a residential neighborhood between 22 Newell Avenue and Rudgear Road in Walnut Creek,and in close proximity to plaintiffs'real 23 property. 24 168. At all times relevant herein,defendant EBMUD occupied a special relationship in 25 relation to plaintiffs. Said special relationship was created by,among other things,the undertaking 26 by EBMUD of an ultrahazardous construction project in an area adjacent to plaintiffs'residence 27 and property. EBMUD through its contracts,literature,and statements publicly represented that the 28 Northern Pipeline would be constructed in a manner so as to reduce impacts on and protect the First Amended Complaint for Damagesfor Negligence,et at -JURY MAL DEAMMED Page 38 1 safety of residents and property in the areas surrounding the Northern Pipeline route. 2 169. EBMUD's creation and undertaking of a special relationship with plaintiffs imposed 3 a duty on EBMUD to,among other things,safely construct the Northern Pipeline so as to protect 4 the public,including plaintiffs,from the extreme risk of harm posed by,among other things,the 5 performance of excavation and construction activity in close proximity to the Kinder Pipeline. 6 Pursuant to California Health and Safety Code section 13007,EBMUD,among other things,had a 7 duty to ensure that no substance or thing capable of causing an explosion or fire would be used 8 carelessly or negligently where it might directly or indirectly start a fire. Pursuant to California 9 Health and Safety Code section 13008,EBMUD had a duty to ensure that any fire occurring on or 10 near the Project and/or the Northern Pipeline would not escape to the property of others,including, 11 without limitation,to plaintiffs'property. 12 170. On November 9,2004,EBMUD breached its duty to plaintiffs and their property by 13 so carelessly,recklessly,and negligently controlling,possessing,and owning the Project that the i 14 Kinder Pipeline was breached and a fire occurred in the Northern Pipeline trench. Said fire escaped 15 to the property of plaintiffs,destroying plaintiffs'residence and property. 16 171. As a direct and proximate result of EBMUD's breach of its duty,the explosion and 17 escaping fire burned plaintiffs'property,severely damaging plaintiffs'dwelling,destroying their 18 personal property and damaging their real property and fixtures. 19 172. As a further direct and legal result of the breach of duty,plaintiffs have sustained 20 property damage,including the destruction of and/or damage to plaintiffs' dwelling,fixtures, 21 personal property,and real property in an amount according to proof at trial. 22 WHEREFORE,plaintiffs pray for judgment against EBMUD as hereinafter set forth. 23 ELEVENTH CAUSE OF ACTION 24 NEGLIGENT VIOLATION OF HEALTH AND SAFETY CODE SECTIONS 25 13007,AND 13008 26 (As Against MCI,KMEP,SFPP,KMGP,KMI,MATAMOROS,COMFORCE, 27 CDM,CAROLLO,and DOES 1-200) 28 173. Plaintiffs hereby incorporate by reference each and every allegation contained in First Amended Complaint for Damages for Negligence,et at..-JURY TRIAL DEMANDED Page 39 I paragraphs 1 through 172,as though fully set forth herein. 2 174. At all times relevant herein,plaintiffs owned and possessed the real property, 3 building and fixtures thereon,and personal property located at 2053 Doris Avenue in Walnut 4 Creek. 5 175. The aforementioned real property,building,fixtures,and personal property were 6 valued in excess of one million dollars. 7 176. On November 9,2004,defendants,and each of them,so carelessly,recklessly and 8 negligently controlled,possessed and/or owned the Project that,in the performance of their work,a 9 fire occurred which spread to plaintiffs'property,severely damaging plaintiffs'dwelling, 10 destroying personal property and fixtures,and damaging real property. 11 177. As a direct and proximate result of defendants'acts,the fire spread to and burned 12 plaintiffs'property. Plaintiffs' dwelling,fixtures,real and personal property were destroyed and 13 damaged in an amount to be proved at trial. I4 WHEREFORE,plaintiffs pray for judgment against MCI,KMI,KMEP,SFPP,KMGP, 15 MATAMOROS,COMFORCE,CDM,CAROLLO and DOES 1-150 and 201-250 as hereinafter set 16 forth. 17 TWELFTH CAUSE OF ACTION 18 VICARIOUS LIABILITY FOR TORTIOUS ACTS OF INDEPENDENT CONTRACTORS 19 (As Against EBMUD) 20 178. Plaintiffs hereby incorporate by reference each and every allegation contained in 21 paragraphs 1 through 177,as though fully set forth herein. 22 179. Defendant EBMUD entered into a written contract with defendant MCI and DOES 23 51-100 as independent contractors to construct,supervise,operate,and control the Northern 24 Pipeline Project.At all times relevant herein,MCI and DOES 51-100,inclusive,were the general. 25 contractors or subcontractors hired by EBMUD for the construction,supervision,operation,and 26 control of the Project. 27 180. Because of the dangerous and ultrahazardous nature of the Project and peculiar risk 28 of harm to others posed by the Kinder Pipeline,and the location of Kinder Pipeline in the Firs!Amended Complain!for Damages for Negligence,el al.-JURY TRIAL DEMANDED Page 40 I immediate vicinity of the Project,the Northern Pipeline and residential neighborhoods,MCI and 2 DOES 51-100,had a duty under,among other things,California Department of Safety and Health 3 regulations,California statutes,common law,and contract to supervise,control,operate,survey, 4 and construct the Project in a safe manner to ensure the safety of plaintiffs'property and the safety 5 of the public. 6 181. At all relevant times herein,MCI and DOES 51-100,breached said duty by,among 7 other things: 8 (a) Negligently,carelessly and recklessly hiring,training,retaining and 9 supervising its employees,representatives,agents and independent contractors in the performance 10 of its work on the Project; 11 (b) Negligently,carelessly and recklessly failing to correctly determine the 12 location of the Kinder Pipeline before excavating,and/or allowing DOES 201-250 to excavate in, 13 the area of the Northern Pipeline and Kinder Pipeline,pursuant to,among other things, 14 Government Code section 4216.4. MCI was aware of the incursion of the Kinder Pipeline into the 15 Project,by way of the drawings and plans provided to MCI by EBMUD. MCI also was aware of 16 the great risk of death and destruction of property presented by the act of performing excavation 17 work immediately adjacent to a high-pressure fuel pipeline located.in a residential neighborhood; 18 (c) Negligently,carelessly and recklessly failing to create,obtain,and/or analyze 19 the proper utility maps showing the location of the Kinder Pipeline prior to excavating and/or 20 allowing DOES 51-200 to excavate in an area immediately adjacent to the Kinder Pipeline; 21 (d) Negligently,carelessly and recklessly failing to obtain the proper permits and 22 other authority to allow for work to be completed in the vicinity of the Kinder Pipeline and 23 Northern Pipeline; 24 (e) Negligently,carelessly and recklessly failing to require KMI KMGP,KMEP, 25 SFPP and DOES 101-150,to relocate the Kinder Pipeline to a location away from the immediate 26 vicinity of the Project; 27 (f) Negligently,carelessly and recklessly failing to inquire as to concerns of 28 other entities working on the Project or who worked on the Project(including among others First Amended Complaint for Damages for Negligence,el al.-JURY TRIAL DEMANDED Page 41 l� I Modem Continental,EBMUD,KMI,KMGP,KIV EP,SFPP and DOES 1-50 and 101-150,and 2 each of them)regarding the location of the Kinder Pipeline to the vicinity of the Project and 3 Northern Pipeline; 4 (g) Negligently,carelessly and recklessly failing to proceed with work around 5 the Kinder Pipeline through safe and acceptable means,pursuant to,among other things, 6 compliance with California Government Code section 4216.4; 7 (h) Negligently,carelessly and recklessly using inappropriate types of 8 excavation equipment in the immediate vicinity of the Kinder Pipeline; 9 (i) Negligently,carelessly and recklessly entering into a mutual agreement with 10 KMI,KMEP,SFPP,KMGP and DOES 101-150,and each of them,allowing for the use of power- 1 I operated or power-driven excavating equipment within the.immediate vicinity of the Kinder 12 Pipeline and Northern Pipeline; 13 (j) Negligently,carelessly and recklessly failing to conduct,or requiring others 14 to conduct,competent daily inspections prior to the start of work and as needed throughout the 15 course of the excavation work for evidence of a situation that could result in a dangerous and 16 ultrahazardous conditions,such as the conditions which resulted in the explosion and fire which 17 destroyed plaintiffs'home; 18 (k) Negligently,carelessly and recklessly failing to timely contact Underground 19 Service Alert prior to excavating,or allowing excavation,near the Kinder Pipeline and Northern 20 Pipeline,pursuant to,among other things,California Government Code section 4216.2; 21 (1) Negligently,carelessly and recklessly failing to timely notify Underground 22 Service Alert when the field markings for the Kinder Pipeline were no longer visible or useable; 23 (m) Negligently,carelessly and recklessly failing to notify Underground Service 24 Alert of the failure of KW KMEP,SFPP,KMGP and DOES 101-150 to locate the Kinder 25 Pipeline prior to excavation; 26 (n) Negligently,carelessly and recklessly failing to obtain an inquiry 27 identification number from Underground Services Alert prior.to commencing or allowing 28 excavation near the Kinder Pipeline; First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 42 I (o) Negligently,carelessly and recklessly failing to obtain a revalidation of the 2 inquiry identification number from Underground Service Alert after said number expired; 3 (p) Negligently,carelessly and recklessly allowing use of a welding device 4 which could cause a fire without reasonable precautions necessary to insure against the starting and 5 spreading of a fire,in violation of California Health and Safety Code section 13001; 6 (q) Negligently,carelessly and recklessly allowing a fire to be set and to escape 7 to the property of another in violation of California Health and Safety Code section 13006;and 8 (r) Negligently,carelessly and recklessly allowing a fire to bum on property 9 under its control and to escape to the property of another without exercising due diligence to 10 control such fire in violation of California Health and Safety Code section 13008. 11 182. Defendant EBMUD entered into a written contract with defendant CDM as an 12 independent contractor to plan and design the Pipeline Project.Defendant CDM entered into a 13 contract with defendant CAROLLO to plan and design the portion of the Northern Pipeline at issue 14 in this action. 15 183. Because of the dangerous and ultrahazardous nature of the Project the peculiar risk 16 of harm to others posed by the Kinder Pipeline and contents thereof,and the location of the Kinder 17 Pipeline in the vicinity of the Project,the Northern Pipeline,and residential neighborhoods, 18 CAROLLO and CDM,and each of them,had a duty under,among other things,California 19 Department of Safety and Health regulations,California statutes,common law and contract,to plan 20 and design the Project in a safe manner to ensure the safety of private property and of the public, 21 including plaintiffs. 22 184. At all relevant times herein,CAROLLO and CDM,and each of them,breached said 23 duty by,among other things: 24 (a) Negligently,carelessly and recklessly preparing and designing the plans and 25 maps for the Project.CDM,CAROLLO,and DOES 1-50,inclusive,were aware of the incursion of 26 the Kinder Pipeline into the path of the Project,as evidenced by their drawings; 27 (b) Negligently,carelessly and recklessly failing to evaluate the need for 28 redesign of the Project at the time they became aware of and discovered the proximity of the Kinder First Amended Complaint for Damages for Negltgence,et al.-JURY TRIAL DEMANDED Page 43 I Pipeline to the proposed Northern Pipeline,and the incursion of the Kinder Pipeline into the 2 Project; 3 (c) Negligently,carelessly and recklessly failing to address the missing data,or, 4 alternative,request additional data after reviewing the potholing data derived from field data in the 5 vicinity of station 100+15;and 6 (d) With respect to CDM and DOES 1-50,negligently,carelessly and recklessly 7 entering into a subcontract with CAROLLO regarding the portion of the Project at issue in this 8 lawsuit. 9 185. The tortious conduct of MCI,CDM and CAROLLO,and each of them,was,among 10 other things,negligent,careless,reckless,grossly negligent and/or despicable. 11 186. MCI,CDM,and CAROLLO,and each of them,acted so as to cause the injuries to 12 Plaintiffs and to legally cause the injuries and damages as alleged herein. 13 187. As a direct and legal result of the negligence,gross negligence and/or recklessness 14 of MCI,CDM and CAROLLO,plaintiffs suffered the destruction of their residence and their real 15 and personal property,loss of the use and enjoyment of their home and additional economic losses 16 resulting from the destruction of and damage to their property. 17 188. As a further direct and legal result of the negligence,gross negligence and/or 18 recl lessness of MCI,CDM and CAROLLO,inclusive,plaintiffs were injured in their health, 19 strength,and activity and suffered substantial,severe and unjustifiable emotional distress and 20 physical and mental pain and suffering. 21 189. In employing MCI,CAM and CAROLLO,EBMUD recognized,or,in the exercise 22 of reasonable care,should have recognized that the Project would be.likely to create,during its 23 progress,a peculiar unreasonable risk of harm. EBMUD knew that the Project involved the 24 excavation of trenches immediately adjacent to the Kinder Pipeline„a high-pressure pipeline used 25 for the transportation of hazardous and flammable gasoline products,as well as the use of heavy 26 machinery and welding equipment. EBMUD knew or should have known that the use of such 27 machinery and equipment and in close proximity to volatile gasoline products was an 28 ultrahazardous activity which created a peculiar risk of harm to adjacent property and injury to First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 44 I persons in the immediately surrounding neighborhood. 2 190. EBMUD failed to take reasonable precautions to protect against the peculiar and 3 unreasonable risks of the Project,and failed to ensure that MCI,CDM and/or CAROLLO took 4 sufficient precautions to protect against the peculiar risk of harm created by the performance of 5 their contractual obligations. 6 191. EBMUD is therefore liable for the acts and omissions of MCI,CDM.CAROLLO 7 and DOES 51400,as herein alleged. 8 WHEREFORE,plaintiffs pray for judgment against EBMUD,as hereinafter set forth- 9 orth9 THIRTEENTH CAUSE OF ACTION 10 DANGEROUS CONDITION OF PUBLIC PROPERTY 11 (As Against EBMUD and DOES 1-10) 12 192. Plaintiffs hereby incorporate by reference each and every allegation contained in 13 paragraphs 1 through 191,as though fully set forth herein. 14 193. EBMUD and DOES 1-10,and each of them,owned,occupied,controlled and were 15 otherwise legally responsible for the premises on which the Project and the Northern Pipeline were 16 being constructed. 17 194. On or about November 9,2004,the Project was in a dangerous condition in that it 18 contained a high-pressure gasoline pipeline,the Kinder Pipeline,which created a substantial risk of 19 property damage to property immediately adjacent to the Project and of personal injury and death to 20 persons on and adjacent to the Project site. 21 195. By virtue of the existence of the Kinder Pipeline on the Project site,the property was 22 in a dangerous condition if used with due care. 23 196. EBMUD and DOES 1-10,inclusive,created the dangerous condition of the Project, 24 by among other things,planning and designing the construction of the Northern Pipeline at the 25 Project site,maintaining and operating the Project site in.accordance with such plans and designs, 26 and constructing the Northern Pipeline in accordance with such plans and designs. 27 197. The aforementioned acts and omissions of EBMUD and DOES 1-10,inclusive, 28 created a dangerous condition of property that created a substantial and unreasonable risk of e First Amended Complaint for Damages for Negligence,et al.-JURY TRML DEMANDED Page 45 I property damage,personal injury and death when the property was used with due care and in a 2 manner which was reasonably foreseeable. 3 198. On November 9,2004,the Kinder Pipeline on the Project site was ruptured,causing 4 gasoline to escape from pipeline on and into the Project site. The gasoline was ignited,creating an 5 explosion and fireball which escaped onto plaintiffs'property immediately adjacent to the project 6 site. 7 199. As a direct and legal result of the dangerous condition described above,plaintiffs' 8 dwelling and personal property therein were destroyed and/or damaged,and their real property was 9 damaged in that the value of said real property has been diminished by the notoriety of the 10 explosion and publicity regarding the catastrophic occurrence and the property's proximity to the I 1 Kinder Pipeline.As a result of such injuries,plaintiffs have suffered damages in an amount to be 12 proved at trial. 13 200. As a fiuther direct and legal result of the dangerous condition described above, 14 plaintiffs were injured in their health,strength,and activity and suffered substantial,severe and .15 unjustifiable emotional distress and physical and mental pain and suffering. 16 WHEREFORE,plaintiffs pray for judgment against EBMUD and DOES 1-10,inclusive,as 17 hereinafter set forth. 18 FOURTEENTH CAUSE OF ACTION 19 PREMISES LIABILITY 20 (As Against MCI and DOES 51-100,Inclusive) .21 201. Plaintiffs hereby incorporate by reference each and every allegation contained in 22 paragraphs 1 through 200,as though fully set forth herein. 23 202. MCI and DOES 51-100,and each of them,occupied and/or controlled the premises 24 on which the Project and the Northern Pipeline were being constructed. 25 203. The real property contained a hidden condition or conditions which created an 26 unreasonable risk of harm to the public and those residing adjacent to the Project,including 27 plaintiffs. 28 204. MCI and DOES 51-100 knew or should have known about such dangerous Prost Amended Complaint far Damages for Negligence,e!a1.-JURY TRIAL DEMANDED Page 46 I condition or conditions. Defendants failed to make reasonable inspections to discover such 2 condition or conditions. 3 205. MCI and DOES 51-100 failed to take reasonable precautions to protect against the 4 condition and the harm likely to result therefrom.. Defendants further failed to give adequate 5 warning to those likely to be injured by the condition. 6 206. In addition,MCI and DOES 51-100,by their activities of excavation,construction 7 and modification of the Project site,created additional dangerous conditions at the site which 8 would not have existed but for their work at the site. 9 207. Asa direct and legal result of the negligence,gross negligence and/or recklessness 10 of MCI and DOES 51-100,plaintiffs suffered the destruction of their residence and their zeal and 11 personal property,loss of the use and enjoyment of their home and additional economic losses 12 resulting from the destruction of and damage to their property. 13 208. As a further direct and legal result of the negligence,gross negligence and/or 14 recklessness of MCI and DOES 51-100,plaintiffs were injured in their health,strength,and activity 15 and suffered substantial,severe and unjustifiable emotional distress and physical and mental pain 16 and suffering. 17 209. The acts of MCI and DOES 51-100 were willful,wanton,malicious,oppressive, 18 despicable,and/or fraudulent,and justify an award of punitive damages.At all times mentioned 19 herein,MCI,its employees,agents,representatives,independent contractors,and DOES 51-100, 20 inclusive,and each of them,were guilty of malice,oppression,fraud,and/or willful,and conscious 21 disregard for the rights of plaintiffs.Given the dangerous and ultrahazardous nature of the work 22 performed on the Project,and the close proximity of the Kinder Pipeline to the Project,the 23 Northern Pipeline and residential neighborhoods,MCI,its employees,agents,representatives, 24 independent contractors,and DOES 51-100,inclusive,and each of them,owned,operated and 25 controlled their premises with a reckless indifference and willful and conscious disregard for the 26 rights of plaintiffs. 27 210. Plaintiffs are entitled to punitive damages against MCI,and DOES 51-100, 28 inclusive,and each of them,as corporate defendants because one or more officers,directors or First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 47 I managing agents thereof acted with a conscious disregard of the rights or safety of others, 2 including plaintiffs,and said officers,directors and/or managing agents were personally guilty of 3 oppression,fraud,and/or malice. 4 WHEREFORE,plaintiffs pray for judgment against MCI and DOES 51-100,inclusive,as 5 hereinafter set forth. 6 FIFTEENTH CAUSE OF ACTION 7 PREMISES LIABILITY 8 (As Against KMI,KMEP,SFPP,KMGP and DOES 101-150,Inclusive) 9 211. PIaintiffs hereby incorporate by reference each and every allegation contained in 10 paragraphs i through 210,as though fully set forth herein. 11 212. KMI,KMEP,SFPP,KMGP and DOES 101-150,and each of them,owned, 12 occupied and/or controlled the Kinder Pipeline and the premises in and around the pipeline. 13 213. The Kinder Pipeline contained a hidden condition or conditions which created an 14 unreasonable risk of harm to the public and those residing adjacent to the Project,including 15 plaintiffs. 16 214. KMI,KMEP,SFPP,KMGP and DOES 101-150 knew or should have known about 17 such dangerous condition or conditions of its property. Defendants,and each of them,failed to 18 make reasonable inspections to discover such condition or conditions. 19 215. KMI,KMEP,SFPP,KMGP and DOES 101-150 failed to take reasonable 20 precautions to protect against the conditions and the harm likely to result therefrom. Defendants 21 further failed to give adequate warning to those likely to be injured by those conditions. 22 216. KMI,KMEP,SFPP,KMGP and DOES 101-150,by their acts and omissions in 23 connection with the work performed by EBMUD,MCI,MATAMOROS and others on the Project 24 site,created additional dangerous conditions of the property which would not have existed but for 25 defendants'acts and omissions. 26 217. As a direct and legal result of the negligence,gross negligence and/or recklessness 27 of KMI,KMEP,SFPP,KMGP and DOES 101-150,plaintiffs suffered the destruction of their 28 residence and their real and personal property,loss of the use and enjoyment of their home and First Amended Complaint for Damages for Negligence,et al.=JURY TRIAL DEMANDED Page 48 t, I additional economic losses resulting from the destruction of and damage to their property. 2 218. As a further direct and legal result of the negligence,gross negligence and/or 3 recklessness of KMI,KMEP,SFPP,KMGP and DOES 101-150,plaintiffs were injured in their 4 health,strength,and activity and suffered substantial,severe and unjustifiable emotional distress 5 and physical and mental pain and'suffering. 6 219. The acts of KMI,KMEP,SFPP and DOES 101-150 were willful,wanton, 7 malicious,oppressive,despicable,and/or fraudulent,and justify an award of punitive damages.At 8 all times mentioned herein,MCI,its employees,agents,representatives,independent contractors, 9 and DOES 51-100,inclusive,and each of them,were guilty of malice,oppression,fraud,and/or 10 willful,and conscious disregard for the rights of plaintiffs.Given the dangerous and ultrahazardous 11 nature of the Kinder Pipeline and the,close proximity of the Kinder Pipeline to the Project;the 12 Northern Pipeline and residential neighborhoods, defendants,their employees,agents, 13 representatives,independent contractors,and DOES 101-150,inclusive,and each of them,owned, (� 14 operated and controlled their premises with a reckless indifference and willful and conscious 15 disregard for the rights of plaintiffs. 16 220. Plaintiffs are entitled to punitive damages against KMI,KMEP,SFPP,KMGP and 17 DOES 51-100,inclusive,and each of them,as corporate defendants because one or more officers, 18 directors or managing agents thereof acted with a conscious disregard of the rights or safety of 19 others,including plaintiffs,and said officers,directors and/or managing agents were personally 20 guilty of oppression,fraud,and/or malice. 21 WHEREFORE,plaintiffs pray for judgment against KMI,KMEP,SFPP,KMGP and DOES 22 51-100,inclusive,as hereinafter set forth. 23 SIXTEENTH CAUSE OF ACTION 24 UNFAIR BUSINESS PRACTICES 25 (As Against KMI,KMEP,SFPP,KMGP and DOES 101-150,Inclusive) 26 221. Plaintiffs hereby incorporate by reference each and-every allegation contained in 27 paragraphs I through 219,as though fully set forth herein. 28 222. KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,are in the business of F-Irst Amended Complaint for Damages for Negligence,et at.-JURY TRIAL DEMANDED Page 49 I owning,operating and maintaining gasoline and fuel pipelines in various locations,including 2 several locations in Northern California. 3 223. At all times relevant herein,KMI,KMEP,SFPP,KMGP and DOES 101-150, 4 inclusive,and each of them,were the owners/operators of the Kinder Pipeline,which is a 5 subsurface installation within the meaning of Government Code section 4216.3.KMEP,SFPP, 6 KMGP,KMI and DOES 101-150,inclusive,and each of them,were aware of and received 7 notification of the proposed installation work to be performed in the vicinity of the Kinder Pipeline 8 by,among others,EBMUD,Modern Continental.,MCI,and DOES 14 00. 9 224. On and prior to November 9,2004,KMI,KMEP,SFPP,KMGP and DOES 101- 10 150,inclusive,were aware of concerns about the location of the Kinder Pipeline and the inaccurate 11 field markings and location of the Kinder Pipeline at the project site. 12 225. Prior to November 9,2004,KMI,KMEP,SFPP,KMGP and DOES 101-150, 13 inclusive,and each of them,knew and were notified of the proposed work and excavation to be 14 performed by MCI,and DOES 51-100,and each of them,on the Project and the Northern Pipeline. 15 226. Despite their knowledge of the dangerous nature of the Kinder Pipeline and its 16 contents,and expressed concerns about the location of the Kinder Pipeline to the vicinity of the 17 Northern Pipeline and Project and the failure by KMI,KMEP,SFPP,KMGP and DOES 101-150, 18 inclusive,and each of them,to properly field mark and locate a portion of the Kinder Pipeline, 19 KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,and each of them,breached their 20 statutory duties by,among other things,failing to properly locate and field mark the location of the 21 Kinder Pipeline pursuant to California Government Code section 4216.3;failing to advise MCI, 22 and DOES 51-100,and each of them,of the location of the Kinder Pipeline in relation to the 23 Northern Pipeline in accordance with Government Code section 42I6.3;and/or failing to monitor 24 and inspect the excavation work on the Project at the site of the Kinder Pipeline. 25 227. Plaintiffs are informed and believe and thereon allege that it was the pattern, 26 practice,custom and policy of KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,to 27 disregard safety standards and laws and regulations relating to the operation/ownership of its 28 pipeline system.The breach of the above-referenced duties was consistent with the pattern and First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 50 t� I practice,custom and policy of KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,and each 2 of them,to put profits over the safety of the public and the rights and safety of landowners 3 possessing property immediately adjacent to defendants'pipelines,including the Kinder Pipeline. 4 228. ILMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,and each of them,in 5 advising excavators of the location of the pipeline and allowing work to go forward on the Project 6 made statements and engaged in conduct which was unlawfully deceptive and misleading the 7 members ofthe general public,MCI,EBMUD,Modern Continental,DOES 1-100 and plaintiffs. 8 229. Such activities and violations of the Government Code and California regulations 9 specified above were a substantial factor in directly causing harm to plaintiffs.Such harm to 10 plaintiffs was of the kind that would be or should have been anticipated as a result of the violations 11 of law by KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive. 12 230. KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,. possessed knowledge 13 and experience with respect to locating,marking,and inspecting of its pipeline,including,without 14 limitation,the Kinder Pipeline. Defendants knew or should have known that the failure to 15 adequately conduct the work of surveying and locating the Kinder Pipeline would result in an 16 extremely high risk of harm to the property of immediately adjacent landowners,including 17 plaintiffs,and a great risk of physical harm and injury to persons residing in the immediate area. 18 231. By their actions,KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive, 19 engaged in an unlawful,unfair or fraudulent business practice or act within the meaning of 20 California Business and Professions Code section 17200 et seg. 21 WHEREFORE,plaintiffs pray for judgment against KMI,KMEP,SFPP,KMGP and DOES 22 101-150,inclusive,as hereinafter set forth. 23 SEVENTEENTH CAUSE OF ACTION 24 UNFAIR BUSINESS PRACTICES 25 (As Against MCI and DOES 51-100,Inclusive) 26 232. Plaintiffs hereby incorporate by reference each and every allegation contained in 27 paragraphs 1 through 230,as though fully set forth herein. 28 233. MCI and DOES 51-100,inclusive,are in the business of construction. MCI was First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 51 I hired by EBMUD to complete the construction of the Northern Pipeline after EBMUD terminated 2 Modern Continental's contract with EBMUD for construction of the pipeline. 3 234. In the six years prior to November 9,2004,MCI and DOES 51-100,inclusive,had 4 extremely poor safety records,as set forth and reflected in numerous citations from California 5 OSHA investigations,civil lawsuits and criminal prosecutions. 6 235. At all times relevant herein,MCI and DOES 51-100,inclusive,had statutory duties, 7 among other things,to properly and correctly determine the location of the Kinder Pipeline before 8 excavating in the immediate vicinity of the Kinder Pipeline,pursuant to Government Code section 9 4216.4;to proceed with work around the Kinder Pipeline through safe and acceptable means, 10 pursuant to Government Code section 4216.4;to contact Underground Service Alert prior to 11 excavating,or allowing excavation,near the Kinder Pipeline and Northern Pipeline,pursuant to 12 Government Code section 4216.2,inter alfa;to obtain an inquiry identification number from 13 Underground Service Alert prior to commencing or allowing excavation near the Kinder Pipeline 14 and Northern Pipeline pursuant to Government Code section 4216.2,inter alfa. 15 236. Despite the knowledge by MCI and DOES 51-100,of the extreme risk of harm to 16 the public,including plaintiffs,that would result from the failure to comply with these statutory 17 duties,MCI and DOES 51-100 breached said statutory duties. In doing the things herein alleged, 18 MCI and DOES 51-100 acted with a wrongful intent and conscious disregard for the safety of the 19 public,including plaintiffs. 20 237. The breach of said duties was consistent with the pattern and practice,custom,and 21 policy of MCI and DOES 51-100 to put profits over the safety of the public and property located in 22 the immediate vicinity of their projects. 23. 238. MCI and DOES 5 1-100 failed to properly inspect,locate,mark and protect the 24 Kinder Pipeline while performing excavation immediately adjacent to the Kinder Pipeline. MCI 25 and DOES 51-100 also failed to wam others working on the Project of the dangers created by the 26 Kinder Pipeline so that work on the Project could safely proceed. In addition,MCI and DOES 51- 27 100 made statements concerning the Project and engaged in similar conduct which was unlawfully 28 deceptive and misleading to members of the general public and plaintiffs. First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 52 1 239. Such activities and violations of the Government Code as specified above were a 2 substantial factor in directly causing harm to plaintiffs.Such harm to plaintiffs was of the kind that 3 would be or should have been anticipated as a result of the violations by MCI and DOES 51-100, 4 and each of them. 5 240. MCI and DOES 51-100 possessed knowledge and experience in such work with 6 respect to locating,marking,excavating,and inspecting the Project and Kinder Pipeline,and knew 7 or should have known that the failure to adequately conduct the work would result in an extremely 8 high risk of harm to property located immediately adjacent to the Project- 9 241. MCI and DOES 51-100,and each of them,thereby engaged in an unlawful,unfair or 10 fraudulent business practices or acts within the meaning of California Business and Professions 11 Code section 17200 et seq. 12 WHEREFORE,plaintiffs pray for judgment against MCI and DOES 51-100,inclusive,as 13 hereinafter set forth. 14 EIGHTEENTH CAUSE OF ACTION 15, INVERSE CONDEMNATION 16 ArticIe I Section 19,California Constitution; 17 Fifth Amendment,United States Constitution 18 (As Against EBMUD) 19 242. Plaintiffs hereby incorporate by reference each and every allegation contained in 20 paragraphs 1 through 239,as though fully set forth herein. 21 243. Plaintiffs are informed and believe and thereon allege that at all times relevant 22 herein,defendants EBMUD and DOES 1 through 400 were the agents,servants,and employees of 23 their co-defendants and were acting within the course and scope of their authority as such agents, 24 servants,and employees with the permission and consent of their co-defendants. 25 244. At all times relevant herein,EBMUD was a public entity engaged in the business of 26 planning,designing,owning,supervising,controlling and constructing the Project and the Northern 27 Pipeline. 28 245. The Project and the Northern Pipeline were public improvements undertaken by l� First Amended Complaint for Damages for Negligence,et at.-JURY TRIAL DEMANDED Page 53 I EBMUD for a public purpose,use or benefit,namely,the transportation of potable water for public 2 use. 3 246. At all times relevant herein,plaintiffs were the owners in fee simple of the real 4 property and dwelling located at 2053 Doris Avenue in Walnut Creek. 5 247. On November 9,2004,EBMUD,individually,and by and through its contractors, 6 employees,servants-and agents,was engaged in construction activity in a trench within the South 7 Broadway Easement in a residential neighborhood between Newell Avenue and Rudgear Road, 8 immediately adjacent to plaintiffs'property. During construction activity near the Kinder Pipeline, 9 the Kinder Pipeline was damaged and fuel escaped from it.The fuel ignited and an explosion and 10 fire ensued.Fire,debris,heat,and petroleum product invaded plaintiffs'property,destroying 11 plaintiffs'residence and inflicting serious damage to plaintiffs'personal property and real property. 12 248. The acts and omissions of EBMUD,as alleged herein,constitute a taking of 13 plaintiffs'property and property rights as well as tangible and physical damage to plaintiffs' 14 property. 15 249. Commencing on November 9,2004 and continuing to the present time,plaintiffs 16 were and are displaced from their property and have been compelled to relocate to alternative 17 housing. Plaintiffs'dwelling was substantially destroyed and rendered unfit for habitation by 18 forces invading their property,including but not limited to,fire,debris,heat,and petroleum 19 products disgorged by the Kinder Pipeline. 20 250. Plaintiffs' residence,land and personal property have been and are contaminated and 21 damaged by smoke,fumes and chemicals caused and/or released by the November 9,2004 22 explosion and fire. 23 251. The damage to plaintiffs'property was proximately caused by defendant EBMUD, 24 its contractors,agents,servants,and employees' breach of duties under California statutes,common 25 law,California Department of Safety and Health regulations,and contract by,among other things: 26 (a) Negligently,carelessly and recklessly preparing,designing and approving the 27 plans and maps for the Project,notwithstanding its knowledge of the Kinder Pipeline in the area of 28 the proposed Project; First Amended Complaint for Damagesfor Negligence,et al.-JURY TRIAL DEMANDED Page 54 I (b) Negligently,carelessly and recklessly failing to evaluate the need for 2 redesign of the Project at the time defendants became aware of and discovered the proximity of the 3 Kinder Pipeline to the proposed Northern Pipeline,and the incursion of the Kinder Pipeline into the 4 Project; 5 (c) Negligently,carelessly and recklessly failing to address missing data and/or 6 failing to request additional data after reviewing the pot-holing data derived from field data in the 7 vicinity of station 100+15; 8 (d) With respect to CDM and DOES 1-50,and each of them,negligently and 9 carelessly and recklessly entering into a subcontract with CAROLLO regarding the portion of the 10 Project at issue in this lawsuit; 11 (e) Negligently,carelessly and recklessly hiring MCI,a contractor known by 12 EBMUD and others,including KMI,KMEP,SFPP.KMGP,COMFORCE and DOES 5I-200, 13 to be negligent and/or incompetent to perform the work on the Project,given,among other things, 14 MCI's poor safety records; 15 (f) Negligently,carelessly and recklessly supervising and exercising control 16 over MCI and others,including MATAMOROS,COMFORCE,CDM,CAROLLO and DOES 51- 17 200 in the performance of their work on the Project; 18 (g) Negligently,carelessly and recklessly failing to correctly determine the 19 location of the Kinder Pipeline before allowing MCI and DOES 51-150 to excavate in the area of 20 the Kinder Pipeline.EBMUD was aware of the incursion of the Kinder Pipeline into the Project as .21 evidenced by the maps created by CAROLLO and CDM and reviewed by EBMUD. 22 (h) Negligently,carelessly and recklessly pressuring and requiring MCI and 23 DOES 51-200 to complete their work on the Project in a time frame that was not feasible without 24 endangering the safety of property and persons immediately adjacent to the Project site; 25 (i) Negligently,carelessly and recklessly failing to create,obtain and/or analyze 26 the proper design maps and field marking data,prior to allowing MCI and DOES 51-200 to 27 excavate near the Pipeline; 28 0) Negligently,carelessly and recklessly failing to obtain the proper permits and First Amended Complaint for Damages for Negligence,et at.-JURY TRIAL DEMANDED Page SS I other authority to allow for work to be completed by MCI and DOES 51-200 in the vicinity of the 2 Kinder Pipeline and Northern Pipeline; 3 (k) Negligently,carelessly and recklessly creating a dangerous condition of 4 public property by performing work,or allowing work to be performed on its behalf,on the Project 5 in the immediate vicinity of the Kinder Pipeline as opposed to another location in Walnut Creek; 6 (1) Negligently,carelessly and recklessly failing to require KMI,KMEP,SFPP, 7 KMGP and DOES 101-150 to relocate the Kinder Pipeline to a location away from the immediate 8 vicinity of the Northern Pipeline and the Project; 9 (m) Negligently,carelessly and recklessly failing to notify MCI and DOES 51- 10 100 of concerns by other entities working on the Project or who worked on the Project(including 11 among others Modern Continental.,KMI,KMEP,SFPP,KMGP and DOES 51-150)regarding the 12 close proximity of the Kinder Pipeline to the proposed Northern Pipeline and the Project; 13 (n) Negligently,carelessly and recklessly failing to require MCI,KMI,KN EP, 14 SFPP,KMGP and DOES 51-200 to proceed with the work around the Kinder Pipeline through safe 15 and acceptable means;and 16 (o) Negligently,carelessly and recklessly failing to require MCI,KMI,KMEP, 17 SFPP,KMGP and DOES 51-150,to conduct,daily inspections by a competent individual prior to 18 the start of work and as needed throughout the project for evidence of dangerous and 19 ultrahazardous conditions,such as those which resulted in damage to plaintiffs'residence. 20 252. Plaintiffs have not received compensation from EBMUD for the damage to their 21 property. 22 253. Plaintiffs have incurred and will incur attorneys fees,engineering and consultant 23 fees and other expenses because of this proceeding,in amounts that cannot yet be determined, 24 which are recoverable in this action pursuant to California Code of Civil Procedure section 1036. 25 254. Plaintiffs have incurred moving,temporary housing and other costs of relocating as 26 a proximate cause of their displacement from their property,in an amount that cannot yet be 27 determined,which are recoverable in this action under the provisions of the Relocation Assistance 28 Act,California Government Code section 7260 et seq. E First Amended Complaint for Damages for Negligence,et al.-JURY TRUL DEMANDED Page 56 I WHEREFORE,plaintiffs pray for judgment against defendant EBMUD as hereinafter set 2 forth. 3 NINETEENTH CAUSE OF ACTION 4 TRESPASS 5 (Against All Defendants) 6 255. Plaintiffs hereby incorporate by reference each and every allegation contained in 7 paragraphs 1 through 254,as though-fully set forth herein. 8 256. Plaintiffs are,and at all times relevant herein were,the owners and in exclusive 9 possession of certain real property consisting of land and a single family dwelling at 2053 Doris 10 Avenue in Walnut Creek. 11 257. Defendants engaged in activities including owning,operating,designing,' 12 constructing,locating,field marking,supervising,,and monitoring excavation near petroleum 13 products pipelines transporting gasoline,jet fuel and other flammable and hazardous compounds. 14 258. Such activities create the existence of a high degree of risk and harm to the real and 15 personal property of others,create the likelihood that the harm which results from it will be great, 16 and are inappropriate to the residential neighborhoods where they was carried on,such that their 17 value to such communities is outweighed by their dangerous attributes. 18 259. As a proximate result of the fire and explosion caused by defendants' conduct, 19 foreign matter including heat,fire,and debris wrongfully and without plaintiffs'consent invaded 20 plaintiff's premises,destroying plaintiffs'dwelling and personal property and damaging their real 21 property. 22 260_ As a further proximate result of the unauthorized entry onto plaintiffs' land, 23 plaintiffs suffered and continue to suffer discomfort and annoyance.and mental suffering,and have 24 sustained injuries to their nervous systems,all which injuries have cause plaintiffs great mental, 25 physical and nervous pain,and suffering. 26 261. As a further proximate result of the unauthorized entry onto plaintiffs' land, 27 plaintiffs have incurred and will continue to incur medical and related expenses according to proof. 28 262. The aforementioned acts of the defendants were willful and malicious and were First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 57 I undertaken in conscious disregard of plaintiffs'property,personal safety,and mental well-being. 2 WHEREFORE,plaintiffs pray for judgment against all defendants and DOES 1-400, 3 inclusive,as hereinafter set forth. 4 TWENTIETH CAUSE OF ACTION 5 NUISANCE 6 Civil Code Sections 3479,3480 and 3481 7 (Against All Defendants) 8 263. Plaintiffs hereby incorporate by reference each and every allegation contained in 9 paragraphs 1 through 262,as though fully set forth herein. 10 264. Plaintiffs are,and at all times relevant herein were,the owners and in possession and 11 control of certain real property consisting of land and a single family dwelling at 2053 Doris 12 Avenue in Walnut Creek. 13 265. At all times relevant herein,defendants.and DOES 1-300 owned,planned designed, 14 supervised,controlled,constructed,and otherwise participated in the Project,and more particularly 15 that portion of the Project located at the trench on South Broadway,between Newell Avenue and 16 Rudgear Road,and adjacent to the real property owned by plaintiffs in Walnut Creek. 17 266. Defendants and DOES 1-151 planned,controlled,designed,maintained,managed, 18 inspected,constructed,located,field marked,monitored,supervised,and/or operated said Project in 19 such a manner as to constitute an explosion hazard and fire hazard. 20 267. Said hazards constitute a nuisance within the meaning of section 3479 of the Civil 21 Code in that on November 9,2004,an explosion and fire occurred which caused foreign matter, 22 including heat,fire,and debris to enter plaintiffs'property and destroy plaintiffs'dwelling and 23 personal property and damaged their real property. 24 268. By their acts and omissions as herein alleged,defendants have injured plaintiffs' 25 health and obstructed plaintiffs'free use of their property so as to interfere with their comfortable 26 enjoyment of their lives and property. 27 269. As a proximate result of the nuisance created by defendants,plaintiffs have been and 28 will be,damaged in excess of one million dollars. l� Fist Amended Complain!for Damages for Negligence,e[al.-JURY TRIAL DEMANDED Page 58 1 270. As a further proximate result of the nuisance and the public notoriety of the 2 nuisance,the value of the plaintiffs'property has been diminished in an amount to be proved at 3 trial. 4 271. As a further proximate result of the nuisance created by defendants,plaintiffs have 5 been hurt in their health strength and activity,sustaining injuries to their nervous systems and 6 persons,all of which injuries have caused,and continue to cause,plaintiffs great mental,physical, 7 and nervous pain and suffering. 8 272. As a further proximate result of the nuisance created by defendants,plaintiff's have 9 incurred and will continue to incur medical and related expenses. 10 WHEREFORE,plaintiffs pray for judgment against all defendants as hereinafter set forth. 11 PRAYER FOR RELIEF 12 WHEREFORE,plaintiffs pray for judgement against all defendants and each of them as 13 follows: t 14 1. For general damages in an amount to be proven at trial; 15 2. For special damages in an amount to be proven at trial; 16 3. For punitive damages and exemplary damages in an amount to be proven at trial,as 17 requested in this complaint,under the First(as to DOES 1-50),Second,Third,Fourth,Sixth, 18 Seventh,Fourteenth and Fifteenth causes of action; 19 4. For reasonable attorney fees according to law under the Tenth.Eleventh.Twelfth. 20 Sixteenth and Eighteenth causes of action; 21 5. For disgorgement of profits under the Fifteen and Sixteenth causes of action; 22 6. For consequential damages in an amount to be proven at trial under the Ei htg eenth, 23 Nineteenth and Twentieth causes of action; 24 7. For all costs incurred from the time of damage,including but not limited to 25 engineering fees and consulting fees,prejudgment interest accruing from the time of damage at a 26 rate to be determined by the court,all benefits under the Relocation Assistance Act(California 27 Government Code Sec.7260 et seq.)including but not limited to moving expenses,direct losses, 28 and dislocation allowance in an amount to be proven at trial,and attorney fees under the Sixteenth First Amended Complaint for Damages for Negligence,et aL-JURY TRIAL DEMANDED Page 59 1 cause of action. 2 8. For costs of suit;and 3 9. For such other and further relief as the Court deems proper. 4 Dated:December_%j 2005 MICHEL&FACKLER A Professional Corporation 5 By 7 M6)M ff.PdicW61,Esq. Je M.Fackler,Esq. 8 Attorneys for Plaintiffs ENOS and LETO CHABOT and THE 9 CHABOT LIVING TRUST OF ENOS N. CHABOT AND LETO N_CHABOT 10 11 DEMAND FOR JURY TRIAL 12 Plaintiffs ENOS and LETO CHABOT and THE CHABOT LIVING TRUST OF ENOS N. 13 CHABOT AND LETO N.CHABOT hereby demand a jury trial on all claims and causes of action 14 asserted herein. 15 Dated:December 2j,2005 MICHEL&FACKLER 16 A Professional Corporation 17 18 By Mica chef,Esq. 19 Jeff .Fadkler,Esq. Attorneys for Plaintiffs 20 ENOS and LETO CHABOT and THE CHABOT LIVING TRUST OF ENOS N. 21 CHABOT AND LETO N.CHABOT 22 23 24 25 26 I 27 28 t First An►ended Complaint for Damages for Negligence,et al.-JURY TIDAL DEMANDED Page 60 ro r: 982.1(11 ATTORNEY OR PARTY WITHOUT ATTORNEY(Name,state bar number,and address): FOR COURT USE ONLY Peter J. McNulty, Esq. (SBN 89660) McNulty Law Firm 827 Moraga Drive Los Angeles, CA 90049 TELEPHONE NO: (3 10) 471-2707 FAX NO.(Opt&et): (310) 472-7014 E-MAIL ADDRESS(opbana!):Peter@mcnultylaw.com ATTORNEY FOR(Na,,):Plaintiffs 11-10-05 NAMEOFCOURT-.Superior Court of California, Contra Costa sTREETADmEss: 725 Court Street MAILING ADDRESS: K,TORRE,CLERK OF THE COURT CITY AND ZIPCODE:Martinez, CA 94553 SUPERIOR COURT OF CALIFORNIA BRANCH NAME:Martinez Courthouse COUNTY OF CONTRA COSTA-'MARTINEZ PLAINTIFF:Patrick Farley, Victoria Farley BY: S.HARBRECHT, DEPUTY CLERK DEFENDANT:Mountain Cascade Inc.; KMEP L.P; SFPP, L-P; MOP, Inc.; Kinder Morgan Inc.; East Bay Municipal Utility District; Carollo Engineers; Camp, Dresser and McKee, Inc.; Comforce Technical Services, Inc. t' ® DOES 1TO 50 COMPLAINT—Personal Injury,Property Damage,Wrongful Death AMENDED(Number): First Type(check ail that apply): U MOTOR VEHICLE [X]OTHER(specify): General Negligence and Property Damage = Wrongful Death Intentional Tort [� Personal Injury (X] Other Damages(specify):Exemplary Jurisdiction(check all that apply): ACTION IS A LIMITED CIVIL CASE CASE NUMBER: Amount demanded ��_ does not exceed$150,000 exceeds$10,000,but does not exceed$25,000 C -?S-b'1-5 73 CXJ ACTION IS AN UNLIMITED CIVIL CASE(exceeds$25,000) j ACTION IS RECLASSIFIED by this amended complaint 4433 [� from limited to unlimited { [� from unlimited to limited 1. PLAINTIFF(name): Patrick Farley, Victoria Farley I alleges causes of action against DEFENDANT(name):Kinder Morgan, Inc. , et al. l 2. This pleading,Including attachments and exhibits,consists of the following number of pages: 38 3. Each plaintiff named above Is a competent adult a. = except plaintiff(name): (1) F 1 a corporation qualified to do business in California (2) an unincorporated entity(describe): (3) 0 a public entity(describe): (4) a minor an adult (a) for whom a guardian or conservator of the estate or a guardian ad[item has been appointed (b) other(specify): (5) (� other(specify): b. n except plaintiff(name): ) (1) C] a corporation qualified to do business in California i (2) an unincorporated entity(describe): (3) a public entity describe): (4) a minor an adult (a)[] for whom a guardian or conservator of the estate or a guardian ad litem has been appointed i (b) other(specify): ' (5) = other(specify): I: Lj Information about additional plaintiffs who are not competent adults is shown in Complaint—Attachment 3. Page 1 of 1 Fom1 Approved for Optional UseCode of C.1 Procedure.§425.12 I: UE tV .n,dlaalcamalorcaoroma COMPLAINT—Personal Injury,Propertyjje ss2.lcnlRev.=1.2oo21 Damage,Wrongful Death s us !I: ( c)S-I� � 7 � G9 CSHORT TITLE: Farley, et al. v. Kinder Morgan, Inc. , et al. cnser+unnaeR: C 05-01573 4. [J Plaintiff(name): Is doing business under the fictitious name(specify): and has complied with the fictitious business name laws. :f 5. Each defendant named above is a natural person a. [y] except defendant(name):Mountain c. [X] except defendant(name):East Bay Cascade, Inc. (hereinafter "MCI") Municipal Utility District (hereinafter "EBMUD") (1) =a business organization,form unknown (1) a business organization,form unknown (2) ® a corporation (2) []a corporation (3) Q an unincorporated entity(describe): (3) []an unincorporated entity(describe): (4) a public entity(describe): (4) =a public entity(describe): A public utility district (5) C}other(specify): (5) 0 other(specify): 1: r b. CX] except defendant(name): Kinder Mountain d. [X]-except defendant(name): Carollo Energy Partners,L.P (hereinafter Engineers, PC (hereinafter "Carollo") "KMEP") (1) [X]a business organization,form unknown (1) =a business organization,form unknown (2) = a corporation (2) X 1 a corporation (3) [-1 an unincorporated entity(describe): (3) =an unincorporated entity(describe): � I (4) a public entity(describe): (4) []a public entity(describe): i s (5) other(specify): ,(5) []other(specify): [X�Information about additional defendants who are not natural persons is contained in Complaint—Attachment 5. 6. The true names and capacities of defendants sued as Does are unknown to plaintiff. 7. Defendants who are joined pursuant to Code of Civil Procedure section 382 are(names): 8. This court is the proper court because a. C]at least one defendant now resides in Its jurisdictional area. b. []the principal place of business of a defendant corporation or unincorporated association Is in its jurisdictional area. c. [, injury to person or damage to personal property occurred in its jurisdictional area. . d. C]other(specify): I (I 9. Plaintiff is required to comply with a claims statute,and a. DU plaintiff has complied with applicable claims statutes,or b. ED plaintiff is excused from complying because(specify): j 982.1(1)(Rev.July 1.20021Pape 2 W 1 COMPLAINT--Personal Injury,Property Damage,Wrongful Death a MC-025 SHORT TITLE:Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER: al. C 05-01573 1 ATTACHMENT(Number):5 Page 2a of 37 (This Attachment may be used with any Judicial Council form.) (Add pages as required) 2 The defendants herein named consist of entities described as follows: 3 Defendant SFPP, L.P. is and at all times herein mentioned was, a limited 4 partnership organized and existing under the laws of the State of Delaware, and qualified to do business in the State of California. 5 Defendant CAMP, DRESSER and McKEE, INC. (CDM) is, and at all times herein 6 mentioned was, a corporation organized and existing under the laws of the State of Massachusetts, and qualified to do business in the State of 7 California. 8 Defendant COMFORCE TECHNICAL SERVICES, INC. (COMFORCE) is, and at all times herein mentioned was, a corporation organized and existing under the laws of 9 the State of Delaware, and qualified to do business in the State of California. 10 Defendant KINDER MORGAN G.P. , Inc. (KMGP) is, and at all times herein 11 mentioned was, a corporation organized and existing under the laws of the state of Texas, and qualified to do business in the state of California. 12 Defendant KINDER MORGAN, Inc. (KM, Inc.) is, and at all times herein 3 mentioned was, a corporation organized and.existing under the laws of the state of Texas, and qualified to do business in the state of California. 14 15 The true names of capacities, whether individual, corporate, associate or 16 otherwise of Defendant, DOES 1-50, inclusive, are unknown to Plaintiffs who therefore sue said Defendants by such fictitious names. Plaintiffs are 17 informed and believe and thereon allege that each of the Defendants designated herein referred to, and negligently caused injuries and damages 18 thereby proximately to Plaintiffs as herein alleged. 19 20 21 22 23 24 25 26 (if the item that this Attachment concerns is made under penalty of perjury,ail statements in this Attachment are.made under penalty of perjury.) Form Apprwed for Optional use- ATTACHMENT cad.Rules or court nate W2 JudioMC42lC uncd New CalifOrnl1.20021 to Judicial Council Foran MC-025�Ne.+v hdy 1,2002 SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc., et al. CASE NUMBER C 05-01573 10.The following causes of action.are attached and the statements above apply to each(each complaint must have one or more causes of action attached): a.= Motor Vehicle b.QX General Negligence c. OX Intentional Tort d. [� Products Liability 3 e. Premises Liability f. [� Other(specify): 11. Plaintiff has suffered a. EE wage loss b. 0 loss of use of property i c. } hospital and medical expenses 1 d. M general damage e. = property damage f. [XI toss of earning capacity g. nother damage(speeify): Loss of Consortium, Victoria Farley 12. (� The damages claimed for wrongful death and the relationships of plaintiff to the deceased are a. C] listed in Complaint—Attachment 12. b. j as follows: 13. The relief sought in this complaint is within the jurisdiction of this court. 14. PLAINTIFF PRAYS for judgment for costs of suit;for such relief as is fair,just,and equitable;and for a. (1) ® compensatory damages (2) punitive damages b. The amount of damages is(you must check(1)in cases for personal injury or wrongful death): (1) [X according to proof (2) = in the amount of:$ 15. = The paragraphs of this complaint alleged on information and belief are as follows(specify paragraph numbers): Date: - i Wtter J. McNulty. Esq. (TYPE OR PRINT NAME) f SI TU OF"NTIFF OR ATTORNEY) t SWA(I)IRer.July 1.20021 COMPLAINT—Personal Injury,Pro brty Page 7 of s Damage,Wrongful Death j AOL SHORT TITLE: CASE NUMBER Farley, et al. v. Kinder Morgan, Inc. , et al. C 05-01573 First CAUSE OF ACTION -General Negligence Page 4 (numb-) ATTACHMENT TO M Complaint EDCross-Complaint (Use a separate cause of action form for each cause of action.) GN-1. Plaintiff(name): Patrick Farley alleges that defendant(name): Mountain Cascade Inc. ; KMEP L.P; SFPP, L.P; KMGP, Inc. ; Kinder Morgan Inc. ; East Bay Municipal Utility District; Carollo Engineers; Camp, Dresser and McKee, Inc. ; Comforce Technical Services, Inc. IM Does 1to C;n t was the legal(proximate)cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to plaintiff on(date): Tuesday November 9, 2004 at 1:30 p.m. at(place): Walnut Creek, California (description of reasons for liability): 1. Patrick Farley, a welder, employed by Matamoros Welding, was working on part of the { East Bay Municipal Utilities District water pipeline project when an MCI employee operating a backhoe breached the gas pipeline owned by KMEP,SFPP, KMGP and KM Inc., causing an explosion to occur. ,,* 2. Does 31-50 inclusive, are responsible, in ways yet unknown, for this avoidable tragedy. Leave will be sought to amend this Complaint to set forth their roles and responsibility once ascertained. 3. Defendants, Mountain Cascade Inc.; Kinder Morgan Energy Partners of Houston; East Bay Municipal Utility District; Carollo Engineers; SFPP, L.P; Camp, Dresser and McKee, Inc.; Comforce Technical Services, Inc., and DOES 1-30, and each of them are responsible for the negligent acts and omissions of the agents and/or employees which directly caused and/or contributed to the subject. explosion and fire in which Plaintiff Patrick Farley was injured. At the time of the puncture, the petroleum line was carrying gasoline at 974 PSI. The petroleum line was not parallel to the utility corridor, as the line had a sizable offset designed to preserve a large oak tree, which was previously at the location. The oak tree had its above-ground portion removed at some unknown time after construction of the petroleum line and a two or'three year period prior to the puncture. This offset in the petroleum line was indicated and noted on the construction drawings for the water supply line, but was.not indicated by KM field markings or KM field personnel. Mark Presley, an employee of Comforce Technical Services (a company who provided contract labor to KM on this project) indicated they utilized the presence of large trees to help identify offsets in the petroleum line. The Stream of gasoline shot down the trench, drenching the Matamoros welders, including Plaintiff. The resulting explosion and fire fatally injured five employees and seriously injured four other employees. All of the victims worked for Matamoros and MCI, and all fatalities and injuries were due to the fire. There was also extensive property damage. CONTINUED ON THE NEXT PAGE 0 Fam npproveo by the Judcw councd of catffomia CAUSE OF ACTION -General NegligenceccP 425.12 EffecBve January t.1982 U S' We 982.1(3) [� Optional Form SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASENUMBER: al. C 05=01573 1 4. As a proximate result of these acts and omissions, certain defendants were also 2 issued OSHA citations including KMEP, EBMUD, MCI and Carollo. A copy of the 3 original citations are attached hereto as "Exhibit All. The citations are as 4 follows: 5 A.Company Name: East Bay Municipal Utility District 6 Inspection Site: 0.5 MI S of S. Broadway and Newell Ave. , Walnut Creek, 7 CA 94596 8 Citation 1 Item 1 Type of Violation: SERIOUS 9 T8CCR 1511(b) SAFETY PRECAUTIONS 10 Date by which violation must be abated: 11/09/2004 11 Proposed penalty: $6750.00 12 Prior to the presence of its employees, the employer shall make a thorough r014 survey of the conditions of the site to determine, so far as practicable, the t predictable hazards to employees and the kind and extent of safeguards necessary to I� 1 15 prosecute the work in a safe manner in accordance with the relevant parts of Plate 16 A-2-a and b of the Appendix. 17 East Bay Municipal District was aware of the incursion of Kinder Morgan Energy 18 Partners LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility 19 District's Water Line Project as evidenced by maps created by Carollo Engineers PC 20 and reviewed by East Bay Municipal Utility District. East Bay Municipal Utility 21 District reviewed the pot-holing data derived from the field and failed to address 22 the missing data in the vicinity of the offset of the Kinder Morgan Energy Partners 23 LP's 10-inch High Pressure Petroleum Line in the area of Station 100+15, which 24 25 CONTINUED ON THE NEXT PAGE 26 (Required for verifred pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): This page may be used with any Judicial Council form or any other paper filed with=thisourt. Page 5 E _ _ I Form Approved by the ADDITIONAL PAGE �E ' �11a1 Coindl of CaBfomia Attach to Judicial Council Form or Other Court Paper $J,.dUJS- CRC 201.501 r./Go201New January 1.19871 Optional Form 8 SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER al. C 05-01573 1 which resulted in the death of five employees and the serious injury of four other 2 employees. Based upon the pot-holing data review, East Bay Municipal Utility 3 District failed to request additional data regarding the location of the 10-inch 4 High Pressure Petroleum Line and its close proximity to the water line project 5 excavation. East Bay Municipal Utility District maintained an oversight presence 6 throughout the Project, providing Surveying Control (Line and Grade) and Quality 7 Assurance (Construction Inspectors) . 8 B. Company Name: Mountain Cascade Inc. 9 Inspection Site: 0.5 MI S of S. Broadway and Newell Ave., Walnut Creek, CA 10 94596 11 Citation 1 Item 1 Type of Violation: SERIOUS 12 TSCCR 1511(b) SAFETY PRECAUTIONS Date by which violation must be abated: 11/09/2004 74 Proposed penalty_ $22500.00 15 Prior to the presence of its employees, the employer shall make a thorough 16 survey of the conditions of the site to determine, so far as practicable, the I 17 predictable hazards to employees and the kind and extent of safeguards necessary to 18 prosecute the work in a safe manner in accordance with the relevant parts of Plate i 19 A-2-a and b of the Appendix. 20 Mountain Cascade Inc. was aware of the incursion of Kinder Morgan Energy 21 Partners LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility 22 District's Walnut Creek Project. East Bay Municipal Utility District provided 23 CONTINUED ON THE NEXT PAGE 24 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): This page may be used with any Judicial Council form or any other paper filed with th=Court. Page_§- 1 Form Approved by Die ADDITIONAL PAGE Jumdel CQWK9 or CWilb"a Attach to Judicial Council Form or Other Court Paper so,AUS CRC M.501 MC-020(New Januar 1.19871 OpOoml Fom - ORTTITLE:. Farley, et al. v. Kinder Mor an, Inc. , et CASENUMBER: T � C 05-01573 1 drawings to Mountain Cascade Inc. which indicated the proximity of the two lines. 2 Mountain Cascade Inc. did not make a thorough survey or provide necessary 3 safeguards to prevent the breach of the 10-inch High Pressure Petroleum Line on 4 November 9, 2004 which resulted in the death of five employees and the serious 5 injury of four other employees. 6 C. Company Name: Carollo Engineers PC 7 Inspection Site: 0.5 MI S of S. Broadway and Newell Ave., Walnut Creek, CA 8 94596 9 Citation 1 Item 1 Type of Violation: SERIOUS 10 TBCCR 1511(b) SAFETY PRECAUTIONS 11 Date by which violation must be abated: 11/09/2004 12 Proposed penalty: $22500.00 j i Prior to the presence of its employees, the employer shall make a thorough I 14 survey of the conditions of the site to determine, so far as practicable, the 15 predictable hazards to employees and the kind and extent of safeguards necessary to 16 prosecute the work in a safe manner in accordance with the relevant parts of Plate 17 A-2-a and b of the Appendix. 18 Carollo Engineers PC was aware of the incursion of Kinder Morgan Energy Partners. 19 LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility 20 District's Walnut Creek project as evidenced by drawings created by Carollo 21 Engineers PC. Carollo Engineers PC failed to evaluate the need for re-design at the 22 time of discovery of the proximity of the two lines. Carollo Enginers PC reviewed 23 CONTINUED ON THE NEXT PAGE 24 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): 16 This page may be used with any Judicial Council form or any other paper filed with this court-] page \ Form Approved by the ADDITIONAL PAGE Jidi°al c0°"rn of California Attach to Judicial Council Foran or Other Court Paper SO S' CRC 201,501 MC-020[New January 1,19e17 Optional Form QL *F . HORT TITLE: Farley, et. al. v. Kinder Morgan, Inc.. , et casEauMBM, lC 05-01573 1 the pot-holing data derived from the field data and failed to address the missing 2 data in the vicinity of the offset at Station 100+15 of the Kinder Morgan Energy 3 Partners LP's 10-inch High Pressure Petroleum Line which resulted in the death of 4 five employees and the serious injury of four other employees. The pot-holing data 5 review should have gnerated a request for additional data at the point of the 6 closest conflict. 7 D. Company Name: Kinder Morgan Energy Partners LP 8 Inspection Site: 0.5 MI S of S. Broadway and Newell Ave., Walnut Creek, CA 9 94596 10 Citation 1 Item 1 Type of Violation: SERIOUS WILLFUL 11 T8CCR 1541(b) (1) UNDERGROUND INSTALLATIONS 12 Date by which violation must be abated: 11/09/2004 Proposed penalty: $70000.00 14 The estimated location of utility installations, such as sewer, telephone, fuel, 15 electric, water lines, or any other underground installations that reasonably may 16 be expected to be encountered during excavation work, shall be determined prior to 17 opening the excavation. 18 Kinder Morgan Energy Partners LP's employees failed to determine by any marking 19 method the estimated location of the 10-inch High Pressure Petroleum Line in the 20 area of station 100+15 prior to the opening of an excavation to install a waterline 21 which was in close proximity to Kinder Morgan Energy Partners LP's 10-inch High 22 Pressure Petroleum Line. As a result, the 10-inch High Pressure Petroleum Line was 23 beached on November 9, 2004 which resulted in the death of five employees and the 24 CONTINUED ON THE NEXT PAGE 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers). This page may be used with any Judicial Council form or any other paper filed with this court. page g Fam AppvvW by the, ADDITIONAL.PAGE JucicW cauodl of CalitornW Attach to Judicial Council Form or Other Court Paper $p�%r s, CRC 201. 501 iuc-0m[New January 1.19871 lg Optional Form 'RIII SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER: al. IC 05-01573 1 serious injury of four other employees. Kinder Morgan Energy Partners LP's 2 employees were aware that an unsafe condition existed and failed to assure that the 3 utility was clearly marked which would have resulted in its relocation or other 4 appropriate measures to safeguard employees. 5 E. Company Name: Kinder Morgan Energy Partners LP 6 Inspection Site: 0.5 MI S of S. Broadway and Newell Ave., Walnut Creek, CA 7 94596 8 Citation 2 Item 1 Type of Violation: SERIOUS WILLFUL 9 TSCCR 1511(b) SAFETY PRECAUTIONSs 10 Date by which violation must be abated: 11/09/2004 11 Proposed penalty: $70000.00 12 Prior to the presence of its employees, the employer shall make a thorough survey of the conditions of the site to determine, so .far as practicable, the c i4 predictable hazards to employees and the kind and extent of safeguards necessary to 15 prosecute the work in a safe manner in accordance with the relevant parts of Plate 16 A-2-a and b of the Appendix. 17 Kinder Morgan Energy Partners LP's employees failed to communicate the proximity 18 of their 10-inch High Pressure Petroleum Line in the area of Station 100+15 of the 19 East Bay Municipal Utility District's Walnut Creek Project. Failure to notify and 20 provide safeguards to those involved resulted in the breach of the 10-inch High 21 Pressure Petroleum Line on November. 9, 2004 which resulted in the death of five 22 employees and the serious injury of four other employees. Kinder Morgan Energy 23 Partners LP's employees were aware that an unsafe condition existed and failed to J 24 assure that the utility was clearly marked which would have resulted in its 25 relocation or other appropriate measures to safeguard employees. 26 (Required for veered pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): This page may be used with any Judicial Council form or any other paper filed with this court. Page-2__ Form Approved by the ADDITIONAL PAGE Sof J"da0'0oia0'�'t� Attach to Judicial Council Form or Other Court Paper SC�IU S'Al CRC 201,so, AHS020 JNewJarn,ary,,19871 ��77,, Optional Form tea{ 8 I I F ��� b ��+ � 05/04/2085 16527 9161. 42 SAC M 9 T PAGE 03 sidle of bgpKG a Naaba 12%7W4 Dw dim of owgodovl sa*ty and Hmith hmpoom D aim 11lOpom- UMM Wimirg A Tito wbn OlYioe M990651:4QM bowaet Daft 0SM5/2M 2211 rat Town cads,Snits Y M. stili 3acMUM,CA 93313 Opdoeaibqmdm Nbn 03Zt1S EWE-ad Mficift cm9m No== KiHM bedROAN @1MW PARTNERS LP b par m On 0.3 td1 S OF S MWADWAY AND NBWUL AVE.WALNW CREEX,CA 9096 golm2 limy i Type of Viahttoa salous wiffi l Y'8c)CJt 1311(b) SAPUY PRt1CAi/P10MS Poor to the ptetnrs of its earloyea,do a mployW tttail nWm a dxcagh maty of die of the cite to 4etatmiee.so fir in praweaisla.me ptiF",- t le hams w evoiorea and dw-und asd mat of nkpxr& oe coq to pcoeeaate the wQtic is a rs#a attamr in s000:dnroe ariA dts rdevsat parts of FMe A U nfd b of the Appeadbc. t33aidrr Uarpo Fiaap Pactoaa LA's=V o m pdbd I*ooa 3eaoa lbs pcmJmky of dadr 104ml Rio ttmaue Pbm kom Liao in the sma of swm.100+15 Otte Bast ow maidpai Way Oietcws Wsbu Cm*Puim FWbw m mostly dad provbda ra5Sutt 4 to diose bmdwd mmbed in ffie bt"&of die lO4nA Bqh thsmar Pettoteaos Liao am Nkwrmbtr 9.2004 witicti tenikd is the deaf!►of ft"rgibyefa ad the �� se�ioae iyrcP of Aw adrac amplo,�oa- hinder A[oe�o BnaiEy Provers LP'p ampioyeee'�aanne tlnt sn uasafrs awWort ex)W tad t)MA to aawao dodo uOiy wa dcwty marked which would Dears ceoibW m bs rtioaaioa or oder.ppoirdaoe ame"rm to,aaampteyses. ADAM Dace By Whicb V Mast be Abated: 1110909 Propmd Pmft: $ 70000.00 LZ �o INFMMAL CONFERENCE AVAG.ABM ! CONTACT WNNG ATUNNEIMG OFF�GE USTS ON MAWN aw I g t a onp<aro*cuom am noo&aom d r vm ky ft ja% w ow a•P"—..+.-Y+.,...;oft.»+mvwoaam 05nm sad mwrm m of ltd wily Pye 6 of 6 OSHA-2 TW.9J98) 100489 45/04/2885 16:22 915'1 42 I SAC M A T PAGE e2 &af of cmmonk i4sepeoeea Numebw 125678M Dn►i Of Ucoap mfimri aft ad Health Lupadlon Diiom l uffif 004- CaVOSHA Wift k ttiouft Offim(093+0651:4072)loom a Dadw± 05!(1 M 2211 Pat1t Towae Cines SdW 2 M. S4544. Sacxaaxate,CA 45813 Oplioad Isepecdm w r:M-05 ow"od Uftaft of Co mprq PLare; SDOM WKW4 N S ERGY PARTNERS LP baepecdea 9ta OS M S OF S MOADWAY MID NBWBLL AVE,WALMTT MOM CA "SIM Cil hem I Type orvlobtwm .Seri" Wum TO=1541(bxl) UNDERGFDU tD.WrALtA'b`aaNS The a dnaeed loudioa ofvb*bwmD doud6 mCli ae sewer.WWWW tbd,deacie. WNW Rom a.n7 adwt nmdesamaad ketntlidm tint trasrrs ft mq be expeatsd tD be aoosetetnd dmft axnation aocfy dtabt be dela mined prior to opatiop the escar-dog. I ltiatler blaepa Baerpr Pwem�eee LZ''t mopiolrees titled m i6ee�ee by s�qr mardnt aootiod ere adiraated j ioaufoa d drs IWoch KiBh Pneeare P�vioam Uac is tie�of 9tatien 100+15 pemr m!ba opadop�an i eocaradoa m I WWe a wen Uw wbkt wu h dose pgw&niq w binder Wgra EbWV Pseioeace LP's 10-iocb lao Poomme PWtok4m Lice. An a uoom.the loo&;rio Ptme n Pwalema Lias tree beeebd ca $mania 9.20%wbkb to 4*d id the daft of frwe gaployoer sad dr eerlesr Wm7 of LbeC o16er atglvyceL KSedot motym Emu Pbtboett LP's empioym vera awm dwi au vow&oondiooa ezbeod aad t'bMA to ague tit tic udW war deattp metbd wbki wand IIm rmbwd is its mkca kw a ad= Dalt By Which Ybtiotl Most be Abated: I MOM PrWosod Pmalty_ $ 710000.00 See pnes f dro nfi 4 d lbk Cibdoa and Nodrwtim of Fmq 10►Maaptbn w CMPbYR and CM$u gee nVas ano n9MMItaa. c action and Nodrkmioa d+bmk► nkr S of 6 W--m 100490 t (� 85/84/2085 16:24 916t X42 SAC M Z T PAGE 02 Stab of to9i+muk lsapadiat Nttalbsa: t2367X342 Divwm of Oomptioaal 9s4W►Md boom I>tepsgilssr Dates:12101/2004-MIt6 JXS 4d OM Wwbg At Tmidit Ofte 05MIAM van Ol7W/h005 2211 MTom MCK Seat 2 11h 54344 Saaameeto.G 95M Opdnd Wpedb P&I 04M Cmpm N:a.e: CARD=bHt3IIl ms Pc bwr dim 91kc 0.3 M[9 OF BWADWAY AND NEWELL AVE,WALMn CRBM CA 943% � t LIMMI 1 TM of Viotatioec Sedow 1511(b) SAP1=rir PRECAtPMNS ti w eDthe pteta�ti d ib employlet.(�etsplOpet the trwke a thorough 80tY0y ot?the coot rlorn of 15C lits oo detttts>m as 1w as pr cdcabte.die p1etRWbte innards a emptoym lmd tht ttttld ad cxkW of sa&Vatds s=comylairesecaoe the wart 3a a sats lnsoaat to aeoordastx wide die mk s t path of Phu ArZ*laid b of the Appstdta;. Cwoito t3arteeett PC was 4wst of ma bmsku of xmdat M*W EWW Poctaem LP's 1040*EDS% Pieew F+e do m Line ism tett Bey Kwti*d VQky pWtrWs Wataat Out Peau wAeteomd by driwaeafed by cudw B S, PC. c'udb t?,vsfinests Pc tib m t vaioate ave hood qtr toadealpt at flee dose of dileovery of do proxy&V of etc tvm dost. C1Soib 13t&as PC tavic,Med lir paEbo data dwived f w the till daa tmd fafied a addmo des lttit dab la me t' ?'of the otbet at 9aaba 100+15 of die ttidw bougm EwW Pwum lr s 104och High Pressara Pwroloa Lim tebaR I Into des& of five anptoyoce and do sedws 6doq of tw olhr,emr kp,s_ The pot-house data toviim-*oatd 6a e geaaated a regoert for addWbW dm at the pout of the domm coolct. Dice By Which V'iohdm Meat be Aba wd: 1IM9004 Ptepoted Penalty: 22M.00 A tinoerr/Sesdot Padtsoer INFORMAL CONFERENCE AVAILABLE CONiACY MINING ATUNNELING OFFICE UQ ON CITATION See pya r credo 4 ora 6 ChAes end ltaWfe.Ne.*f Pcm W hwlebaoe ipk7--rVft til aaOomdb1Wr. c9bOm aro mWkwu W Yeo.b s ois CRIA-2 tt-.fuss) 100491 05/04/2005 16.26 916; .142 SAC M 9 T PACE 02 Shtbe of hmpwdm imer IM7826a DIvW=ot Owgmtimd 3*�and Aaatdl ImupecBM Dam 1Umm04-MAVM CaU m mm"a Tumlft O1Tim pma6l'am tseamm Dda - 05mvmoa 2211 Pavt Tmte C1rdG Balm 2 C81l0 Wo. 54344 ...CA 9S8is Opdmd bsp ectim Nbn 02M cuft.And Not,of c coup"trTaot» bi'OUNCAtN CASCADE INC taspoetiaa SSW 0.5 hK S OF&BROADWAY AND NEWELL AYE,WALNUT CREEX CA 44595 C eti jjg�-1 1�pe of vwiwm. Sefilous TSCCR 1511(b) SAFETY PRWAtTiiONS Pttor to dW psecum or 1m avgloyoes,Poe anptorm aba8 ro dw a&"a*=rvey of die ocodltlm of ft site >*dtteaa w.so far as pcatdokik die pm&ctabie barn*eo employene and eke kind and cam of mfe m* a prosooale dna w m*15 a sae mamoer is ac,,r,fmwblt dw tde+mmt parts of Plde A.2-a and e 0f dna Apps aft Mame Ow*b .was awm of&m pion of Moder Maagaa Ev aV Paameas LPs 1044*150 Pttamre Melasma Lim ido Eget Da Mmidpd U01y DiabWs Wdmaa coat Perrjacx- Pad aq JdCmiapai tlbft Da dCt provided dnwlatpt to 499ovodo Carcade TW-.vkicfi bdiaaiod dW prOdvntty efft taro tiaras. Mount&Cam&fw-did wA and x a dw ough mYL9 or PMON nNegany to pwvmt dke bnwcl� of to Win*Ntgb Plenute Pfteieoa Line an Notanbw 9,2004 svitkb teuteed in no one of fire an kym and dm redoes buns of Pour oaks emptvyees_ ABA1FD Date By Which Violation Mast be Abewd: 1U09ON Proposed P =lty: $ 225MOD Amwc� F�teerr INFORMAL CONFERENCE AVAILABLE CONTACT ARNING A TUNNELING OFFICE LISTEN)ON CITATION sec o*es t l St 4 of mis(stow and Kadrdeadan of A*rb lb►iof crstioo.o! of 1 badb P•ae s of s OWA.2 Otm"3) 100492 85/84/2888 16:26 9165, 42 SAC M t T PAGE 82 Stolt of ColEfords bspadw Nmobes: 1256?8Z43 Mvidodof Oo "dmd Sdoy and Be" laspedbe D86w- 1.1/09/2001- Ctidf'061{A Km"&hmaetiot Office(045Ml 4M boat m Datta Q.SA03MW 2211 Pork Towne Chdla,Sebe 2 Cl1330 JA S45" Sae raaenm,CA 95815 Opd d Impaction Nbtt 031.0 Compaq Nessa UST BAY MUMQPAL UTUATY Di51'B1CT impeeefm Sib= 0.5 Mi S OF S BROADWAY AND NEWFU AVE,WALNUT CRE M CA 94396 I tfeal 1 Type of Vlotatioa: $E'FIM TWM 151l(b) SAFETY PRW-AtMONS Print to So prmwe of ks cuploym s,dw emokler dol nab a tbM040 wrat7 of the c000km of Ike:a* b Vie,so tar as practicable,bo pa to b cu b oo employees atd the i3sd and a ftd of . a6mmary a prcoeoatte dte wedr in a sde atsnoat in.amaaimce wi&do rokvatrt pacts a(Pim A-2.a sad b of . tba AppmdbL I Earl BW bhmi*d Udl ty Dkmica was anus of do iaaastoa of 16ader Matgm Eaetipf Putnra LP'b 104nch ! foo Pecoraro>?wok m Lfae bloat Bart Bay Maclidpd Utility Di:t:ir t's'tvow Lino Project as ailmtod by i maps crested by Cacotio Fagbom PC and tevkwM by Sart Bq Ifitaklpd Udit DlbmkL Frau Bay MvBtcipd Ut tity Dit kim revierl+ed do pot-boi6lp doh ded ftm the field imd&Med to aMm"to miuige data in da vkb ity of So offed of the Kttxkr MOM B=V Finat m LP's 104n&Rigk Am me PWtmk= Lion is die area of Statloe 100+13,w bkb tt:tolted in Ow drsth of fim amploraea and the nes' inlay of four other employcm Bleed Spon the pot-boiiag dsn review.&u Day MumkA*Dgky Dbab haled to regoost addd9oad dAft regitat So looaaian of rho 1041krdt High Ptesante PWdetraa lima and ft dM prw*mky as the mat line pt jx eooa+di-- pare DO Nwaidpd Vdlky Dltaict malataiaed ton eyrsr*k ptte om dra%k ut dw Project,pmvi ft Sarvr yiug CooW(Lm and donde),ad Qw ft Awwmm ' Dale By WMA tV"iolatioa Mnst be Abated: 11/09/20W Plopo ld PmaRy: S 675D.00 . Mr-IRAIAL CONFERENCE AVARAR1S CUNTACT INNING&TUNNELING OFFICE m6Z USTEO ON MATION sw p a.t a..*,d d"cud" w N.erRe&..r pe wv%,hiff aien m aepleya and ire"ow aye'MPM.a MIM Ctutla o ud tlodfimfto of Po:ww Pip S of 6 09BA3 wr-m C� 1004.93 i t a a a o w cu ca as u � a Z Z• u 2 Z Z Z CO to co C CC �- C c ix v -- a 0 a f au :3cu v = a •4) U d Q •L- a U? a Q Z CO) (1) Z Z CO) U) a a ��(/D� cU U too- c -a w � ,.J UN U1 .0 Q) Q) V) V) O � � "C L a � 4 N — W a � N tCU a E C -50 CI- O a U ca co E c w U 10049+6 i SNORT TITLE: case NUMBER: Farley, et al, v. Kinder Morgan, Inc. , et al. C 05-01573 1 Second CAUSE OF ACTION -General Negligence Page 10 ATTACHMENT TO - CE Complaint ED Cross-Complaint i (Use a separate cause of action form for each cause of action.) t GN-1. Plaintiff(name): Victoria Farley alleges that defendant(name): Mountain Cascade Inc.; KMEP L.P; SFPP, L.P; KMGP, .Inc. ; Kinder Morgan Inc. ; East Bay Municipal Utility District; Carollo i Engineers; Camp, Dresser and McKee, Inc. ; Comforce Technical Services, j Inc. ®Does I to S n I was the legal(proximate)cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to plaintiff on(date): Tuesday November 9, 2004, 1:30 p.m. i at(place): Walnut Creek, California. i (description of reasons for liability): 1. Plaintiff, Victoria Farley, repeats and realleges as if set forth in full herein, the First Cause of Action. f (102. Plaintiff, Victoria Farley, was lawfully married to Patrick. Farley at the time of the subject incident and as a result of defendants negligent acts and omissions suffered loss of his consortium due to the injuries sustained by him. Tone Approved by the J�comworcarfomla CAUSE OF ACTION -General NegligenceCCP 425.12 cti Effeve Jawum y 1.1982 U S' Rule 982.1(3) Optimal Form i SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et al. CASE NUMBER: C 05-01573 Third CAUSE OF ACTION-Intentional Tort Page �1 (number) ATTACHMENT TO XJ Complaint Imo. Cross-Complaint (Use a separate cause of action form for each cause of action_) IT-1. Plaintiff(name): Patrick Farley alleges that defendant(name): KMEP, SFPP, KMGP, KM Inc. , and ®Does 11 to 20 ' was the legal {pro)dmate) cause of damages to plaintiff. By the following acts or omissions to act, defendant i intentionaffy caused the damage to plaintiff on(date): Tuesday, November 9, 2004 at 1:30 p.m. at(place): Walnut Creek, California. (description of reasons for liability): (See Attachments for Third Cause of Action) 1 i Form Approved bglhe judicial council of CaGfomia CAUSE OF ACTION-Intentional Tort CCP 425.12 Effective January 1.1982 u S' Rule 982.1(4) [� 1 Optional Form - - c• 8HORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et cASENUMBER: al. C 05-01573 1 THIRD CAUSE OF ACTION 2 (Brought by Plaintiffs, Patrick Farley 3 Againts KMEP, SFPP, KMGP, KM, Inc. & DOES 11-20) 4 WILLFUL MISCONDUCT 5 6 1. PLAINTIFF, Patrick Farley, repeats and realleges if set forth in full the 7 First Cause of Action. 8 9 2. On November 9, 2004, there was a gasoline spill and subsequent explosion 10 and fire that occurred on the Concord to San Jose Pipeline (referred to in 11 this Complaint as the "Kinder Morgan Pipeline") which is owned and operated 12 by Defendants KMEP, SFPP, KMGP, KM Inc. , and DOES 11-20. At 1322 hours, f excavation equipment operated by Mountain Cascade struck the Kinder Morgan 14 Pipeline. The excavator was working on a large diameter water supply 15 expansion project in Walnut Creek, California for EBMUD. Upon puncture of 16 the Kinder Morgan Pipeline, gasoline under high pressure was immediately 17 released into the surrounding area. Several seconds after the pipeline was 18 hit, the gasoline streaming from the rent was ignited. That avoidable 19 explosion and fire caused the PLAINTIFF and others to sustain horrific 20 significant personal injuries. Altogether. this explosion and fire resulted 21 22 23 CONTINUED ON THE NEXT PAGE 24 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not fine numbers): This page may be used with any Judicial Council form or any other paper filed with this court. Page 12 Form Apprmwl by the ADDITIONAL PAGE Judicial council o1 caetamia Attach to Judicial Council Form or Other Court Paper SJU&- CRC 201,501 MC-020 New January 1,19871 Optimal Form E SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER: al. C 05-01573 1 2 in five fatalities and serious injuries to four persons (including 3 PLAINTIFF). The direct cause of this incident was the excavator's bucket 4 striking the pipeline and puncturing through the wall of the pipe. However, 5 there were several factors that significantly contributed to the incident as 6 described below. This needless explosion and fire was proximately caused by 7 the intentional and willful acts of KMEP, SFPP, KMGP, KM Inc. , and DOES 11- 8 20, which included but are not limited to the following: 9 10 A. KMEP, SFPP, KMGP, KM Inc. and DOES 11-20, did not properly locate the 11 Kinder Morgan Pipeline as required by its own damage prevention program and 12 as required by California Government Code § 4216. These Defendants, did not mark the approximate location of their pipeline to within 24 inches of 14 either side of the exterior surface or subsurface location at EBMUD Station 15 100+15. This is a violation of CFR 49, Part 195.442(a) which requires "each ' 16 operator of a buried pipeline must carry out, in accordance with this 17 section, a written program to prevent damage to that pipeline from i 18 excavation activities." This violation occurred from September 28, 2004 19 through November 9, 2004, a period of 42 days. 20 21 CONTINUED ON THE NEXT PAGE 22 23 24 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): f [This page may be used with any Judicial Council form or any other paper filed with this court. page 13 (al Form Approved by the ADDITIONAL PAGE Juddat c0uW1 Of ca;Momia Attach to Judicial Council Form or Other Court Papers CRC 201.901 MC-M(New January 1.1987) X1]1 Opdonal Form SOU I SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER al. C 05-01573 1 B. These Defendants also did not follow their own line locating procedures. 2 In Section 4.2 of Chapter 4 Maintenance Manual (Line Locating) it states: "Prior to 3 beginning any maintenance work or excavation work, the location of the pipeline 4 shall be reviewed by the local Line Rider or other Company representative and 5 verified by drawings and a pipeline locating device." Although a KMEP, 6 representative was present from November 2, through November 4, 2004 (a period of 7 eight days) , to observe benching operations, he did not review and verify by use of 8 drawings and pipeline locating devices that the location of the pipeline was 9 correctly marked. 10 11 3. These events described above were the product of a willful and serious violation 12 of law according to the Department of Forestry and Fire Protection, Office of the State Fire Marshall and according to the United States Department of Labor, 14 Occupational Safety and Health Administration. Theses agencies found the 15 violations to be serious and willful. Significant civil penalties were imposed. 16 Based on the facts of the incident described here and the surrounding facts alleged 4 17 below, it is hereby alleged that the acts of KMEP, SFPP, KMGP, KM Inc., and DOES 11- ,! i 1.8 20, were wanton, willful, and done with a reckless disregard for human safety 19 concerns. 20 21 4. After the fire and explosion herein described and alleged, plaintiff Patrick 22 Farley did sustain serious personal injury and damage, loss of certain of his 23 property, including clothing and personal effects. 24 25 CONTINUED ON THE NEXT PAGE , 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): j This page may be used with any Judicial Council form or any other paper filed with this courtJ page 14 Form Approved by the ADDITIONAL PAGE � Jid20 council of January Attach to Judicial Council Form or Other Court Paper Sp1L1LiQns- cRcmi,soy MC-020(New danuery+.+aa7i Optional Form CAL FWS SHORTTITLE: Farley, et a1. v. Kinder Morgan, Inc. , eTC SE NUMBER: al. 05-01573 1 5. KMEP, SFPP, KMGP, KM Inc. ,and DOES 11-20, and each of them, knew that to guard 2 against extreme risk of injury to persons and property, including those working on 3 the Project such as PLAINTIFF, the contract between EBMUD and MCI, specified, among 4 other things, that work along South Broadway in Walnut Creek, California was 5 adjacent to the Kinder Pipeline, that construction activities should be coordinated 6 with, among others, Larry Hosler, manager pipeline maintenance and Roy Bridge, 7 manager pipeline safety, for KMEP and MCI. 8 9 6. KMEP, SFPP, KMGP, KM Inc.,and DOES 11-20, and each of them, knew that the Kinder 10 Pipeline had to be properly located in advance of excavation to avoid any physical 11 contact with the Kinder Pipeline as a result of any construction activities. 12 7.. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and each of them, were aware of their 14 respective responsibilities under, among other things, the Government Code and Code 15 of Regulations to properly plan and design the Project and determine the location 16 of and properly field mark the Kinder Pipeline to allow for safe excavation in the 17 vicinity thereof. 18 19 8. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and each of them, knew that 20 operating, locating, field marking, and excavating in the vicinity of the Kinder 21 Pipeline created the existence of a special, high degree of risk of harm to persons 22 23 CONTINUED ON THE NEXT PAGE 24 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): 4190 1 This page may be used with any Judicial Council form or any other paper filed with this court. Page 15 Forth Approved by Me ADDITIONAL PAGEjj�'j Jud1CW CouW1 of caurorroa Attach to Judicial Council Form or Other Court Paper $OJutyQnS CRC 201.50t ki"20(New January 1.19871 leu opna+at Fam s t yr SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc., et CASENUMBM al. C 05-01573 1 and property, including those working on the Project with welding tools, such as 2 PLAINTIFF. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and each of them, knew that 3 Matamoros Pipeline, Inc., and its employees including PLAINTIFF, were using welding 4 intructions to weld the EBMUD Pipeline, which considerably increased the extreme 5 risk of harm due to highly flammable nature of the contents of the Kinder Pipeline, 6 should the subject pipeline be ruptured or breached. 7 8 9. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and each of them, knew that those 9 working on the Project, including PLAINTIFF, would rely on, among others, KMEP, 10 SFPP, KMGP, KM Inc., and DOES 11-20, and each of them, for their safety to properly 11 design, plan, locate, field mark warn and excavate in the vicinity of the Kinder 12 Pipeline in compliance with state laws, statues, orders, and regulations. 14 10. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20,and each of them, have experienced 15 multiple avoidable accidents relating to its pipelines, including but not limited 16 to the incident referred to above. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and 17 each of them, have experienced at least 44 accidents relating to its pipelines 18 since January 1, 2003. Of these 44 incidents, at least 14 resulted in releases of 19 more than five barrels of refined petroleum products into the surrounding 20 environment. At least 8 known accidents resulting in releases into the surrounding 21 environment have occurred since April 27, 2004. 22 23 CONTINUED ON THE NEXT PAGE 24 .25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): This page may be used with any Judicial Council form or any other paper filed with this court, page 16 Form App""d by ft ADDITIONAL PAGE Jid Ooincr O1 Attach to Judicial Council Form or Other Court Paper SpForm ��j� CRC 201.sot MC-020o� '.W-Wy 1.19671 S SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASENUMOER al. C 05-01573 1 All 8 of these accidents occurred in or near high consequence areas (as defined in 2 49 C.F.R. section 195.450) and/or major transportation corridors. Of these 8 3 accidents, 5 are attributed to outside force damage (e.g. third party damage caused 4 by an excavator or other source, damage caused during construction, etc.) At least 5 3 of these 5 instances went unaddressed by KMEP, SFPP, KMGP, KM Inc., and DOES 11- 6 20, and each of them, for an indeterminate period despite internal inspection tool 7 runs conducted on the pipelines prior to the accidents. Approximately 50% of 8 reported hazardous liquid pipeline accidents suffered by KMEP, SFPP, KMGP, KM Inc. , 9 and DOES 11-20, and each of them, between 1998 and 2003 were caused by outside 10 forces. 11 12 11. According to the United States Department of Transportation's "Pipeline and i. Hazardous Materials Safety Administration, " the recent accidents of KMEP, SFPP, j t 14 KMGP, KM Inc. , and DOES 11-20, and each of them, indicate a "widespread failure to 15 adequately detect and address the effects of outside force damage and corrosion. 16 This failure has systematically affected the integrity of the Pacific Operations 17 Unit." This pattern and practice of these defendants, and each of them, is one to 18 put profits over people, in that these defendants, and each of them, believe that 19 few adverse consequences will result from its failures to avoid accidents involving 20 the pipelines. This systematic failure flows from the top on down through the 21 corporate levels of these defendants, and each of them, and includes those decision 22 l 23 CONTINUED ON THE NEXT PAGE 24 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): r =Thispamay be used with any Judicial Council form or any other paper filed with this court-] page 17 1. Form Approwd by the ADDITIONAL PAGE JudidalCoundlofCarrromiaAttach to Judicial Council Form or Other Court Paper SMU ' .CRC 201. 501 Mc-020(New January 1.19871 Optional Form I SHORTTITLE: Farley, et al, v. Kinder Morgan, Inc. , et CASENUMBER: al. C 05-01573 1 making individuals including the officers, directors and managing agents of KMEP, 2 SFPP, KMGP, KM Inc. , and DOES 11-20, and each of them. 3 4 12. PLAINTIFF is informed and believes and thereon alleges that these defendants, 5 and each of them, additionally knew that in the six years prior to November 9, 6 2004, MCI had accumulated several safety violations, and was issued several 7 citations from California OSHA for workplace accidents, including but not limited 8 to, the death of a worker when a pipe fell on him in March of 2004, the death of a 9 worker when a crane he tried to operate without training collapsed and smashed him 10 against a pipe, severe lung damage suffered by three workers when poisonous gases 11 overcame them in a sewer in which they were working, and the personal injury of a 1 12 worker when his leg was crushed between two water trucks. These defendants, and each of them, additionally knew that MCI were also the subject to several civil 14 lawsuits involving wrongful death, as well as criminal prosecutions. 15 16 13. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and each of them, knew that the i 17 initial contract with EBMUD was awarded to Modern Continental Co., which contract 18 was later terminated by EBMUD. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and each 19 of them, knew that in or about 2003 or 2004, Modern Continental Co: was excavating j 20 for EBMUD Pipeline and determined that a segment of the Kinder Pipeline was 21 approximately 13 feet from where it had been field marked by MEP, SFPP, KMGP, KM 22 Inc., and DOES 11-20, and each of them. Modern Continental Co. expressed this 23 concern to, among others, KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and each 1 24 CONTINUED ON THE NEXT PAGE i i 25 f 26 (Required for verified pleading) The items on this page stated on Information and belief(specify item numbers, not fine numbers): CThis page may be used with any Judicial Council form or any other paper filed with this court Page-18_, Form npPV-dbyme ADDITIONAL PAGE JulficW Catmd'wcawo"a Attach to Judicial Council Form or Other Court Paper Sp U g CRC zot,sol Mom iNW January 1.198)) . Optio-W Fam S 4 SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc., et CA8E7 NUMBER: al. C 05-01573 1 Modern Continental Co. expressed this concern to, among others, KMEP, SFPP, KMGP, 2 KM Inc. , and DOES 11-20, and each of them. In addition, in or about August of 2003, 3 EBMUD requested that KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and each of them, 4 relocate a section of the Kinder Pipeline because it was, among other things, hard 5 to locate and a hindrance to completion of the Project. In or about early 2004, 6 Modern Continental, and EBMUD were extremely concerned about the location of the 7 Kinder Pipeline because it was still in the way of the excavation for the EBMUD 8 Pipeline and Project. Among others, KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and 9 each of them, discussed in early 2003 the location of the Kinder Pipeline and how 10 to continue working on the Project despite the location of the Kinder Pipeline. 11 12 14. KMEP, SFPP, KMGP, KM Inc. , and DOES 11-20, and each of them, knew that prior to ( November 9, 2004, EBMUD awarded its contract to MCI, who advertises that it t 14 "routinely takes) on tough projects that our competitors shy away from and turn 15 them into profit, " and that the foundation of its success is built on its r 16 dedication to "knowledge, integrity, quality and superior service." KMEP, 1 i 17 SFPP,KMGP, KM Inc., and DOES 11-20, and each of them, knew that KMEP, SFPP, KMGP, 1 18 KM Inc., and DOES 11-20, and each of them, had numerous recent accidents :involving 19 its .pipelines, and that MCI had numerous recent workplace injuries. 20 21 15. Because of the construction work in the direct vicinity of the high pressure 22 Kinder Pipeline, KMEP, SFPP, KMGP, KM Inc. , and DOES 11-20, and each of them, knew 23 24 CONTINUED ON NEXT PAGE 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers,not line numbers): ( 7 This page may be used with any Judicial Council form or any other paper filed with this court. page 19 t F«mnvwoMdbY 6 ADDITIONAL PAGE iLdc l Couro orcarlomia Attach to Judicial Council Form or Other Court Paper sou S" CRC 201.501 Mc-02o[New January 1.19871 OpOwN Form , SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et caseNuIABER al. C 05-01573 1 that it had to guard against the extreme risk of injury and/or death to persons 2 and/or property in the area, including those persons working on the Project along 3 with the general public. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and each of 4 them, knew that construction activities were to be coordinated with all parties 5 participating in the Project. 6 7 16. KMEP, SFPP, KMGP, KM Inc. , and DOES 11-20, and each of them, knew of the peril 8 of an explosion if the flammable liquids or gasses .,inside the Kinder Pipeline 9 escaped in the vicinity of the construction of the EBMUD Pipeline where workers, 10 including PLAINTIFF, worked with welding tools. KMEP, SFPP, KMGP, KM Inc., DOES 11- 11 20, and each of them, knew that the injury of PLAINTIFF, was a probable as opposed 12 possible, result of that. danger, as PLAINTIFF, was working inside the EBMUD Pipeline using welding tools, and had no means of making an easy or fast escape in 14 the event of an explosion and thus would be trapped to burn inside the EBMUD i 15 Pipeline. 16 17 17. At all times herein mentioned, KMEP, SFPP,KMGP, KM Inc., and DOES 11-20, and 18 each of them, as owners, operators, and entities having retained control of the. 19 petroleum.pipeline described herein as the Kinder Pipeline intentionally, 20 knowingly, deliberately and/or consciously failed to avoid the above described 21 engaging in willful misconduct which caused the injury of plaintiff by, among other 22 things: 23 A. Improperly hiring, training, retaining, and supervising their employees, 24 CONTINUED ON THE NEXT PAGE 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not rine numbers): This page may be used with any Judicial Council form or.any other paper filed with this court_ page 20 FmmApprovWbrthe ADDITIONAL PAGE M"d'[NewJa'a ry 1.1987 Attach to Judicial Council Form or Other Court Paper SOS, CRC 201,501 Mco2o(New rawary i.i9e>) optional Foffn SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , etCASE NUMBER: al. C 05-01573 1 agents; representatives, and independent contractors, including (among others) 2 COMFORCE, for the performance of work on the Kinder Pipeline and work in relation 3 and so acting while knowing that the failure to do so in that area of intersection 4 to the Project, including but not limited to work involving the determination of 5 the location of the Kinder Pipeline, data which needed to be ascertained before 6 workers could safely excavate and work in the area of the EBMUD pipeline and Kinder 7 Pipeline, and so doing with the knowledge that any failure on the part of those 8 persons to properly and accurately mark the specific area where the Kinder Pipeline 9 intersected with the area of excavation for the EBMUD Pipeline would likely and 10 probably result in death or serious injury to those persons working in that area; 11 B. Knowingly providing maps, drawings, and plans to entities performing work on 12 the Project which did not accurately depict the location of Kinder Pipeline; t* C. Knowingly and deliberately failing to create, obtain, and/or analyze the { 1 14 proper utility maps, plans and drawings accurately showing the location of ..Kinder 15 Pipeline; 16 D. Knowingly failing to take the necessary steps and precautions to make sure 17 that those persons excavating in the area where the Kinder Pipeline intersected 18 with the EBMUD Pipeline path were aware of that incursion or intersection before 19 they excavated in that area; 20 E. Improperly failing to obtain the proper permits and other authority to allow 21 for work to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline; 22 F. Improperly failing to locate the field mark the location of the Kinder 23 Pipeline prior to the excavation by workers in the area of the EBMUD Pipeline and 24 Kinder Pipeline, in violation of, among other things, Government Code Section 25 CONTINUED ON THE NEXT PAGE 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): This page may be used with any Judicial Council form or any other paper filed with this court page 21 Form Approved try IN ADDITIONAL PAGE Judiclal Corm it or Caldbma CRC 201,501 MC-0201New January 1,19871 Attach to Judicial Council Form or Other Court Paper solfuP.vIS Optional Form �+*4 i 1 1 SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER: al. C 05-01573 1 4216.3, and so acting while knowing that the failure to do so in that area of 2 intersection and incursion would likely and probably result in death or serious 3 injury to persons working in that area of the excavation; 4 G.. Intentionally and falsely stating to those persons excavating in the area 5 where the Kinder Pipeline intersected with the EBMUD Pipeline path that it had 6 properly and correctly placed field markings so as to represent the location of 7 Kinder Pipeline; i 8 H. Intentionally and falsely stating to those persons excavating in the area f 9 where the Kinder Pipeline intersected with EBMUD Pipeline path that the field 1 10 markings accurately represented the location of the Kinder Pipeline, that MCI need r 11 only follow the field marking devices to avoid hitting the Kinder Pipeline during 12 excavation, and that additional locating and monitoring by MCI was not necessary; w I. Maintaining a company-wide practice, through a corporate policy of j 14 recklessness and deliberate inaction, of consistently failing to provide accurate 15 information regarding the location of the Kinder Pipeline to entities providing 16 workers who engage in excavation in close proximity to it, despite knowing that 17 such practices had previously resulted in damage to the Kinder Pipeline from 18 excavation work done near to it; 19 T. Improperly failing to relocate the Kinder Pipeline to a location away from 20 the immediate vicinity of the Project and the EBMUD Pipeline prior to permitting 21 workers on the Project to conduct their duties; 22 K. Improperly failing to address the concerns of entities working on the project 23 24 CONTINUED ON THE NEXT PAGE 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers,not line numbers): This page may be used with any Judicial Council form or any other paper fited with this court. Page 22 Forth Approved by the ADDITIONAL PAGE �. Judicial Cm xl of California Attach to Judicial Council Form or Other Court Paper $p � CRC 201.sw MC-020[New January 1.19871 optional Form SHORT TITLE: Farley, et aI, v. Kinder Morgan, Inc. , et cast NUMaeR al. C 05-01573 1 (including among others Modern Continental Construction Co., EBMUD, ect.) , 2 regarding properly ascertaining the location of the Kinder Pipeline, as related to 3 the location of the EBMUD Pipeline; and failing to properly and appropriately 4 inform and communicate to workers on the Project appropriate knowledge and warnings 5 concerning the location of the Kinder Pipeline, and the dangers related thereto 6 which they might encounter; 7 L. Improperly failing to provide necessary safeguards to those workers so as to 8 prevent breach of the petroleum line during the progress of the work; 9 M. Improperly entering into a mutual agreement with MCI and EBMUD allowing the 10 use of power-'operated or power-driven excavating or boring equipment within the 11 vicinity of the Kinder Pipeline in connection with the Project, without proper 12 safeguards; and; N. Improperly failing to inspect, or to do so as frequently as necessary, the 1 14 Kinder Pipeline, and the proximity of workers thereto, during work on the Project l 15 where, through contact with all involved in the Project, KMEP, SFPP, KMGP, KM Inc., 16 and DOES 11-20, and each of them, knew or should have known that the Kinder 17 Pipeline could be breached or damaged by excavation work for the Project; 18 O. Improperly failing to do all of the above, despite having been informed by 19 entities which previously had performed work at the Project site that workers were 20 having difficulty ascertaining the location of the Kinder Pipeline, so that it 21 could be avoided during their excavation; and 22 23 CONTINUED ON THE NEXT PAGE 24 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers):, This page may be used with any Judicial Council form or any other paper filed with this court. Page 23 For,Approved br ute ADDITIONAL PAGE Judicial Co ncii of California Attach to Judicial Council Form or Other Court Paper CRC 201.501 MC-020(New January 1.198�I Optional Folin i t SHORTTITtE: Farley, et al. v. Kinder Morgan, Inc., et CASE NUMBER: al. C 05-01573 1 P. Improperly failing to do all of the above, despite knowledge that this same 2 Kinder Pipeline had been damaged previously during excavation work, at a different 3 location thereof. 4 5 18. Further allegations incorporated here in by reference and repetition, are found 6 in the Cal-OSHA report. Cal OSHA made the following findings, each of which also 7 tends to prove that KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, engaged in the 8 willful misconduct alleged here: 9 A. OSHA's facts and findings No. 3: "The KMEP Line Rider (Mike Biggs) marked 10 the entire line at one time by himself. Biggs stated he marked the line on two 11 occasions for Modern Continental Construction (MCC) (the former contractor of the 12 project later replaced by MCI) , once for potholes on 100-foot centers, and again for 50-foot centers. Biggs did not recall marking the line for anyone except MCC. 14 Biggs did not recall if or how the offset at Station 100+15 was marked." 15 B. OSHA's facts and findings No. 4: "When KMEP Line Rider has a heavy work 16 load, KMEP hires contract labor from Comforce Technical Services (Comforce) . On 17 the early portion of the South Broadway project Comforce's employee assigned to 18 KMEP was Pete Brook." 19 C. OSHA's facts and findings No. 5: "Comforce (Brooks) assisted KMEP (Biggs) 20 with marking the full line in late 2002 in preparation for the upcoming fiber optic 21 relocation work of Golden State Utility Company (GSUC) . Brooks assistance involved 22 following behind Biggs and placing yellow pin flags in yellow paint marks placed by 23 Biggs. Brooks stated that conductive locating was used, that there were no 24 25 CONTINUED ON THE NEXT PAGE 26 (Required for verified pleading) The Items on this page stated on information and belief(specify item numbers, not line numbers): This page may be used with any Judicial Council form or any other paper filed with this court. page 24 Form Approved by ft ADDITIONAL PAGE I em Judldal Couna of camorrdaCRC 201.501 MC-020 P�i�n 1987) Attach to Judicial Council Form or Other Court Paper g' Opb*W Form MUS . Ial HORTTITLE: Farley, et al. V. Kinder Morgan, Inc. , et CASENUMBER:. I C OS-01573 1 problems with the pipe signal and that the petroleum line was basically straight." 2 D. OSHA's facts and findings No. 6: "Brooks recalls that he marked the full line 3 by himself in preparation for the upcoming fiber optic relocation work of GSUC. 4 Biggs had marked it earlier, but those marks had disappeared. Brooks marked it 5 with yellow pin flags on 50 foot centers, but does not recall specifically marking 6 the offset at Station 100+15, and does not recall working with a GSUC crew. All 7 marking was completed prior to any pot-holing work." 8 E. OSHA's facts and findings No. 7: "Prior to beginning field work along South 9 Broadway, a field meeting was held on February 3, 2003 in the Kaiser Parking Lot. 10 At the conclusion of this field meeting the South Broadway portion of the line was 11 walked by Carlos Rodriguez (EBMUD) , Mike Biggs (KMEP) , Ed Brennan (Horicultural 12 Science) and Joe Magee. No fresh KMEP markings were observed; no offsets were i f marked or pointed out by KMEP; with the single exception of the known conflict at 14 Station 115+00." 15 F. OSHA's facts and findings No. 8; "Prior to beginning field work along South 16 Broadway, a fiber optic communications cable belonging to Time Warner had to be 17 relocated. Time Warner contracted the relocation work to GSUC. GSUC completed 18 their field mapping in December of 2002. The mapping showed some offsets in the 19 KMPE line, but none at Station 100 +15. The reason that the offset was not shown 20 is that there was no indication of the offset on the ground at the time of the 21 survey." 22 G. OSHA's facts and findings No. 10: "Videotape taken on January 30, 2003 shows 23 that there were no markings of the offset at Station 100+15." 24 CONTINUED ON THE NEXT PAGE 25 26 (Required for verified pleading) .The items on this page stated on information and belief(specify item numbers, not line 9numbers): T This page may be used with any Judicial Council form or any other paper filed with.this court. page 25 Fom Approved by the ADDMONAL PAGE MC-020 CowJal d y 1.19ia CRC 201. 501 r lac oto INaw Jammy 1 t987J Attach to Judtcfat Counctl Form or Other Court Paper P S OpbmW Forth s rSHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER al. C 05-01573 1 H. OSHA's facts and findings No. 11: "GSUC did their pot-holing of the KMEP line 2 in February 2003. This pot-holing was done on 100- foot centers in preparation for 3 the Time Warner relocation. -The KMEP representative was Brooks and he spent the 4 entire day with the GSUC crew. Brooks inspected every pothole. The KMEP line was 5 marked, with prominent yellow paint marks on approximately 20-foot centers. Brooks 6 did not mark the line, but would occasionally verify the line marking at a pothole 7 location by using an electronic pipe locater. Brooks made it very clear to GSUC 8 that he was not the line locater. The pipeline was marked straight from pothole to 9 pothole.." 10 I. OSHA's facts and findings No. 12: "MCC awarded an excavation subcontract to 11 Colich and Sons, L.P. (C&S) . One of C&S's first tasks was the pot-holing of the 12 KMEP line along South Broadway on 50-foot centers so the water transmission line A* could be designed and fabricated. The pot-holing work was done in March 2003. C&S 14 found no paint marks (the weather had been very rainy) or yellow flags. The 15 markings C&S followed were KMEP Line Markers placed in the GSUC potholes. KMEP was 16 represented by Brooks on the first day and by Biggs on an intermittent basis 17 thereafter. EBMUD was represented by Carlos Rodriguez, Senior Construction 18 Inspector, on a daily basis. KMEP did not mark the line, mark pothole locations or 19 verify each individual pothole." 20 J. OSHA's facts and findings No. 13: " the fiber optic line was successfully 21 relocated by GSUC in March 2003 using horizontal drilling techniques. Brooks was 22 the representative for the petroleum pipeline owner's." 23 24 CONTINUED ON THE NEXT PAGE 25 26 (Required for vedried pfeading) The items on this page stated on information and belief(specify item numbers, not line numbers): This page may be used with any Judicial Council form or any other paper tiled with this court. page 26 FomAppmvedbythe ADDITIONAL PAGE �� JudlcW cam°7 d�° plut`fO""a Attach to Judicial Council Form or Other Court Paper Ss- CRC20%sol mc.02o IN"January 1.19871 OptlonW Form rat mis SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASENUMSM. al. C 05-01573 1 K. OSHA's facts and findings No. 14: "Although C&S potholed the entire line, the 2 MCC contract was terminated by EBMUD on May 28, 2004. At this time the water line 3 was installed (but not fully lined) to Station 82+99. The contract was re-awarded 4 to MCI on August 10, 2004, with field work commencing in late September 2004. " 5 L. OSHA's facts and findings No. 15: "Prior to MCI starting excavation, the t! 1 6 contract required that a field meeting be held. The required meeting was held on 7 September 28, 2004 at approximately Station 83. The meeting was attended by EBMUD 8 (Mark Miller, Construction Inspector) MCI (Shawn Ross, Superintendent and Gene Im, .9 Foreman) and KMEP (Biggs) . Biggs stated that the Line Markers were directly over 10 the petroleum line and that the line ran straight between the Line Markers. Ross 11 did not specifically ask about the offset at Station 100+15. At the conclusion of 12 the field meeting Ross and I walked the entire length of the line using a 100-foot tape to show Biggs the location of EBMUD line and determine if there would be any 14 interference with the. KMEP line. At first Biggs stated that the meeting occurred 15 on September 27, 2004, that Miller was not there and that the walk down the line 16 with MCI did not occur, but later said that the meeting occurred on September 22, 17 the meeting originated at the Kaiser parking lot, and that he (Biggs) walked 18 approximately one-quarter mile down the line with MCI." 19 M. OSHA's facts and findings No. 16: "Biggs was the KMEP representative from 20 September 28 to October 1, 2004. On October 1 Biggs introduced Mark Presley 21 (Comforce) as the new KMEP inspector." 22 N. OSHA's facts and findings No. 17: "Benching for the trenching excavator 23 24 CONTINUED ON THE NEXT PAGE 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): Thls page may be used with any Judicial Council form or any other paper filed with this court. page 27 Form Approved by the ADDITIONAL PAGE Judicial connc®orcaaMmia. CRC 201,Sot MC-02o(Naw Jamiary,� 1987) Attach to Judtctal Counctt Form or Other Court Paper SOU , S opeoForm PUNS '®r SHORTTtTI.r=: Farley, et a1. v. Kinder Morgan, Inc. , et CASE NUMBER: al. IC 05-01573 1 in the area of the offset at Station 100+15 took place approximately 10 days prior 2 to the puncture of the line. The benching was performed by Dave Bower (Operator 3 for MCI) and was monitored by Presley. Presley monitored the benching for one and 4 one-half to two days. Presley believed he was not present when Bower benched over 5 marking the offset at Station 100+15, but others said that he was. In any case, 6 Presley did not point out the offset during the benching work because he did not 7 know it was there." 8 O. OSHA's facts and findings No. 18: "Carollo indicated the offset at Station 9 100+15 based upon KMEP drawings and prepared Note 2, which requires verification of 10 the petroleum line location from Station 100 to Station 101 and from Station 103 to 11 Station 129. The location of the puncture was 100+12.5." 12 P. OSHA's facts and findings No. 19: "Photographs taken in the area of Station 100+.15 on November 3 and 4, 2004 show that there were no markings of the offset 14 prior to or after the benching activity." 15 Q. OSHA's facts and findings No. 20: "Ross spoke to Biggs on November 5, 2004 j 16 and requested a site meeting on November 8, 2004. Ross knew MCI was approaching i 17 Station 100. " 18 R. OSHA's facts and findings No. 21: "The requested meeting was held along South 19 Broadway on the morning of November 8, 2004. Ross states the meeting had three 20 subjects, with the major one being that Biggs should meet with him as MCI was 21 approaching Station 100 and Ross wanted to make sure MCI was excavating properly. 22 Ross did not specifically ask about the offset at Station 100+15. The two other 23 24 CONTINUED ON THE NEXT PAGE 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): 7 ( This page may be used with any Judicial Council form or any other paper filed with =court- Page28 \F F«mavaoftdbr+t ADDITIONAL.PAGE Judicial Canal of CardanW � CRC 207,501 W-M(January SO Lit 19871 Attach to Judicial Council Foran or Other Court Paper optionsiFom j. [t F SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , etcASENUMBER: al. C 05-01573 1 subjects Ross brought up related to future work on bore pits. Biggs states the 2 only subject was the shoring of one of the future bore pits, that he was not asked 3 to see him, and that he did not stop by the excavation site. Biggs states that he 4 came to the meeting and left the meeting via Rudgear Road." 5 S. OSHA's facts and findings No. 22: "Biggs was observed meeting with him near 6 Station 99+50 during mid afternoon on November 8, 2004 by an MCI Operator. The 7 meeting was noticeable because Biggs truck was blocking the path of the excavation 8 dump truck." 9 T. OSHA's facts and findings No. 23: "Biggs' KMEP truck was observed driving by 10 the excavation site on November 8, 2004 by another MCI Operator. The driver of the EE 11 truck was not observed." I I 12 U. OSHA's facts and findings No. 24: "the KMEP petroleum line was punctured on j ( November 9, 2004, at 13:22 by an excavator operated by MCI Operator Greg Berry. I t 14 Berry is positive that the offset in the petroleum line was not marked any time Ij I 15 after the area was benched for his excavator." ? t 16 V. OSHA's facts and findings No. 25: "The gasoline released by the puncture of i 17 the excavator tooth was ignited by the welding activity performed by Matamoros. i 18 The resulting explosion and fire resulted in five deaths and four serious injuries, 19 Extensive property damage was also sustained as a result of the explosion and 20 fire." ' { 21 22 CONTINUED ON THE NEXT PAGE t 23 i 24 I� I 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): This page may be used with any Judicial Council form or any other paper filed with this court. 0,1 Page_Z9 9 . Form Approved by the ADDITIONAL PAGE .Who w counon d caYriomla MG020INewJeMadY t,1Wn Attach to Judicial Council Form or Other Court Paper SUMUS7 CRC 201. 501 Opgonal Form SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc. , et C.SF.UMBER: al. I C 05-01573 1 19. Although KMEP, SFPP, KMGP, KM Inc., and. DOES 11-20 were well aware that 2 applicable law required that the location of underground installations such as 3 petroleum pipelines that reasonably may be expected to be encountered during 4 excavation work shall be determined prior to opening an excavation, they 5 nonetheless willfully failed to determine by a marking method the accurate location 6 of the Kinder Pipeline, in the area of its intersection with the excavation path of 7 the EBMUD Pipeline, prior to the opening of an excavation to install that water 8 line. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20 were aware that workers would have 9 to operate excavation equipment in the same area where the Kinder Pipeline 10 intersected the path of the EBMUD Pipeline, yet they willfully failed to ensure 11 that the Kinder Pipeline was clearly marked, which would have resulted either in 12 its relocation, or in other appropriate measures to safeguard workers. As a result of the willful action or inaction of the KMEP Defendants as herein described. the 14 Kinder Pipeline was breached, as herein alleged, causing PLAINTIFF'S personal 15 injury. 16 17 20. In engaging in the actions and inactions described above, KMEP, SFPP, KMGP, KM 18 Inc., and DOES 11-20, did have knowledge of the potential peril that ultimately 19 resulted in PLAINTIFF'S personal injury (i.e., the possibility of a breach of the 20 Kinder Pipeline unless great care was exercised in ascertaining its location, duly 21 notifying and informing workers of its location, and assuring that adequate 22 safeguards were undertaken in work at the site); and they consciously failed to act 23 to avoid that peril (i.e., by failing to engage in the preventive actions, 24 CONTINUED ON THE NEXT PAGE 25 26 (Required for verified pleading) The Items on this page stated on information and belief(specify item numbers, not line numbers): �7 This page may be used with any Judicial Council form or any other paper filed with this court. Page-1_0 0 Form Apprond by the ADDITIONAL PAGE A dcw County of Calftoma CRC 201.501 MC-020INewisoLmy 1 19071 Attach to Judicial Council Form or Other Court Paper $O�7u, S- opllonal Form ra. S 1 SHORT7ITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBEFL al. C 05-01573 1 measures, and communications herein described) ; and they did so; even though they 2 knew, for reasons above described, that injury or death of workers at the Project i 3 site was a probable, not merely possible, result of that danger. # 4 4 i 5 21. The acts herein alleged were consistent with and in conformity with an ongoing j 6 corporate or company policy of each defendant herein, in the interest of cost- . � 7 saving and company profits, to purposefully and intentionally ignore a multitude of 8 accidents involving its pipelines nationwide, including 44 accidents in the KMEP, 9 SFPP, KMGP, KM Inc., and DOES 11-20, Pacific Operations Unit of sufficient severity f 10 to trigger Federal reporting pursuant to 49 C.F.R. 5 195.54 since January 1, 2003 i 11 which resulted in a federal Corrective Action Order from the Department of 12 Transportation ("DOT") and a determination by the DOT that continued operation of } the Pacific Operations unit would be hazardous to life, property and the i 14 environment. The order required these Defendants to address safety policy I 15 deficiencies including inadequacies with respect to line-marking and on-call 16 procedures. Despite full knowledge of the consistent pattern of conduct by its 17 employees which led to these regularly occurring pipeline accidents, and despite 18 19 CONTINUED ON THE NEXT PAGE 20 21 22 4 23 24 25 26 (Required for venrred pleading) The items on this page stated on information and belief(specify item numbers, not fine 07, numbers): This page may be used with any Judicial Council form or any other paper filed with this court. page 31 Form ApPM"d By fie ADDITIONAL PAGE iwie 80 c0unw of Canfomia CRC 201,501 MC-020[Nm Janu-y 19971 Attach to Judicial Council Form or Other Court Paper S Mks s'Optima(Form SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASENUMBER: al. C 05-01573 1 full awareness of all dangers to human life associated with such accidents, these 2 Defendants did intentionally and consciously fail to improve, update or change 3 those ineffective safety policies and practices which led directly to such 4 accidents and failed to meaningfully discipline the employees whose conduct led to 5 such accidents.. Instead, KMEP, SFPP, KMGP, KM Inc. , and DOES 11-20, specifically 6 authorized or ratified such conduct so as to place motives ahead of human safety. 7 8 22. The acts herein alleged were either the acts of an officer, director or 9 managing agent of KMEP, SFPP, KMGP, KM Ind., and DOES 11-20; or the acts were 10 consistent with and in conformity with the corporate or company policy of each such 11 defendant; or said acts were those of an employee of said defendants under 12 circumstances. where said defendants had advance knowledge of the unfitness of the employee so acting, and still employed him or her; or, alternatively, said 14 defendants, in the interest of maximizing their business interests and motives, 15 chose to authorize or ratify said conduct. 16 17 23., All of the conduct herein alleged, taken together, constituted conduct that was 18 malicious and oppressive as to plaintiff, in that it was despicable conduct carried 19 on by KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, with a willful and conscious 20 disregard of the rights or safety of others. That is so demonstrated by the 21 allegations above, which demonstrated that the KMEP, SFPP, KMGP, KM Inc., and DOES 22 11-20, were aware of the peril, consciously failed to act to avoid the peril, and 23 knew that injury or death was a probable result if they acted in that manner. 24 CONTINUED ON THE NEXT PAGE 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): z This page may be used with any Judicial Council form or any other paper filed with this court. page 3 2 Form Approved by the ADDITIONAL_PAGE Ju*W cowa7 of cardomia CRC 201.601 MC-020(New January 1 19871 � Attach to Judicial Council Form or Other Court Paper �7u S Optional Form - - `+Tt f l i SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER al. C 05-01573 1 24. All of the conduct described herein constituted numerous serious violations of 2 the California Code of Regulations. 8 CCR § 334 defines a "serious violation" as 3 follows: 4 " (c) Serious Violation. 5 (1) A "serious violation" shall be deemed to exist in a place of employment if 6 there is a substantial probability that death or serious physical harm could result 7 from a violation, including, but not limited to, circumstances where there is a 8 substantial probability that either of the following could result in death or great 9 bodily injury: 10 (A) A serious exposure exceeding an established permissible exposure limit or, 11 (B) A condition which exists, or from one or more practices, means, methods, 12 operlations, or processes which have been adopted or are in use, in the place of employment. " 14 15 25. All of the conduct described herein constituted "willful" violations of the 16 California Code of Regulations. 8 CCR § 334 defines a "willful violation" as I . 17 follows: i 18 "(e) Willful Violation j 19 (2) Willful Violation--is a violation where evidence shows that the employer 20 committed an intentional and knowing, as contrasted with inadvertent, violation, 21 and the employer is conscious of the fact that what he is doing constitutes a 22 violation of a safety law; or, even though the employer was not consciously 23 violating a safety law, he was aware that an unsafe or hazardous condition existed 24 and made no reasonable effort to eliminate the condition." 25 CONTINUED ON THE NEXT PAGE 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): i O7 I This page may be used with any Judicial Council form or any other paper filed with this court. page 33 Form Approved by Ow ADDITIONAL PAGE dudk+el CamW orcalffm" CRC tot, 501 McazoiNew.�,an 1 1987 Attach to Judicial Council Form or Other Court Paper a g 0p0onM Fara+ f� t SHORTWLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER- al. C 05-01573 1 26. All of the conduct alleged in this cause of action constitute serious and 2 willful violations of laws specifically found in the 8 CCR § 334. Based on these 3 independent investigative findings, and the facts as known, it is hereby alleged 4 that the conduct herein constitutes willful misconduct on the part of these 5 defendants. f i 6 7 8 ' i i 9 ' 1 10 11 i 12 14 15 16 17 18 19 20 21 22 23 24 25 26 (Required for ver fred pleading) The items on this page stated on information and belief(specify item numbers, not line r numbers): i7s This page may be used with any Judicial Council form or any other paper filed with this court. page 34 i Form Approved by ft - ADDITIONAL PAGE of caforrAa Mcozo(New January r.19871 �Attach to Judicial Council Form or Other Court Paper U S' CRC201.501 1 Optional Form I i SHORTTITLE: Farley, et al. v_ Kinder Morgan, Inc. , et al. CASE NUMBER C 05-01573 Exemplary Damages Attachment Page 35 ^ ATTACHMENT TO 0 Complaint 0 Cross-Complaint EX-1. As additional damages against defendant(name): KMEP L.P; SFPP, L.P; KMGP, Inc.; Kinder Morgan Inc., ; and DOES 31-50 Plaintiff alleges defendant was guilty of d malice Q fraud d oppression as defined in Civil Code section 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and to punish defendant. EX-2. The facts supporting plaintiffs claim are as follows: 1. PLAINTIFF repeats and realleges if set forth in full the First Cause of Action and Third Cause of Action. (Please see attachment) I i I 1 . i j EX-3. The amount of exemplary damages sought is a. CX] not shown,pursuant to Code of Civd Procedure section 425.10. b. C.i $ i FormApproved nythe EXEMPLARY DAMAGES ATTACHMENT CCP 425-12 Ju"al Counei€of Ca€€fania 1 t� Eftdve January f.1982 SOU Qr15 We 982.1(13) `{Tt jig Op9orW Form }f SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASENUMBER al. C 05-01573 1 2. Although KMEP, SFPP, KMGP, KM Inc., and DOES 11-20 were well aware that s 3 2 applicable law required that the location of underground installations such as 3 petroleum pipelines that reasonably may be expected to be encountered during i 4 excavation work shall be determined prior to opening an excavation, they 5 nonetheless willfully failed to determine by a marking method the accurate location i i 6of the Kinder Pipeline, in the area of its intersection with the excavation path of 7 the EBMUD Pipeline, prior to the opening of an excavation to install that water 8 line. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20 were aware that workers would have i 1 9 to operate excavation equipment in the same area where the Kinder Pipeline I 10 intersected the path of the EBMUD Pipeline, yet they willfully failed to ensure 11 that the Kinder Pipeline was clearly marked, which would have resulted either in 12 its relocation, or in other appropriate measures to safeguard workers. As a result i AN Kinder Pipeline was breachedof the willful action or inaction of the KMEP Defendants as herein described. the I , as herein alleged, causing PLAINTIFF'S personal { 15 injury. 16 i 17 3. in engaging in the actions and inactions described above, KMEP, SFPP, KMGP, KM a 18 Inc., and DOES 11-20, did have knowledge of the potential peril that ultimately 19 resulted in PLAINTIFF'S personal injury (i.e., the possibility of a breach of the 20 Kinder Pipeline unless great care was exercised in ascertaining its location, duly 21 notifying and informing workers of its location, and assuring that adequate 22 safeguards were undertaken in work at the site); and they consciously failed to act 23 to avoid that peril (i.e., by failing to engage in the preventive actions, 24 CONTINUED ON THE NEXT PAGE 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): s 41 I ( This page may be used with any Judicial Council form or any other paper filed with this court. page 36 7 FormAaxavedbyQte ADDITIONAL PAGE azo���98 Attach to Judicial Council Form or Other Court Paper S- CRC 201,soy Optional Form SHORTTITLE. Farley, et al. v. Kinder Morgan, Inc., et CASE NUMBER: al. C 05-01573 1 measures, and communications herein described) ; and they did so; even though they 2 knew, for reasons above described, that injury or death of workers at the Project 3 site was a probable, not merely possible, result of that danger. 4 5 4. The acts herein alleged were consistent with and in conformity with an ongoing 6 corporate or company policy of each such defendant, in the interest of cost-saving 7 and company profits, to purposefully and intentionally ignore a multitude of 8 accidents involving its pipelines nationwide, including 44 accidents in the KMEP, 9 SFPP, KMGP, KM Inc. , and DOES 11-20, Pacific Operations Unit of hazardous pipelines 10 alone of sufficient severity to trigger Federal reporting pursuant to 49 C.F.R. 5 11 195.54 since January 1, 2003 which resulted in a federal Corrective Action Order 12 from the Department of Transportation ("DOT") and a determination by the DOT that E' continued operation of the Pacific Operations unit would be hazardous to life, 14 property and the environment. The Order required the KMEP Defendants to address 1 15 safety policy deficiencies including inadequacies with respect to line-marking and 16 on-call procedures. Despite full knowledge of the consistent pattern of conduct by 't 17 its employees which led to these regularly occurring pipeline accidents, and 18 despite full awareness of all dangers to human life associated with such accidents, i 19 the KMEP Defendants did intentionally and consciously fail to improve, update or I 20 change those ineffective safety policies and practices which led directly to such 21 accidents and failed to meaningfully discipline the employees whose conduct led to ! i 22 such accidents. Instead, KMEP, SFPP, KMGP, KM Inc., and DOES 11-20,authorized or ; 23 ratified such conduct. ; 24 CONTINUED ON THE NEXT PAGE 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers,not line numbers): l �7 This page may be used with any Judicial Council form or any other paper filed with this courtj page 37 Fom AWovW by Ow ADDITIONAL PAGEI Jud1CW cam;of comm+a Attach to Judicial Council Form or Other Court Paper SOh1�� CRC 201.sol MU20 INm January 1.19871 CES bononal Form C SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUM SER: [al. C 05-01573 1 S. The acts herein alleged were either the acts of an officer, director or managing 2 agent of the KMEP, SFPP, KMGP, KM Inc., and DOES 11-20; or the acts were consistent 3 with and inconformity with the corporate or company policy of each such defendant; 4 or said acts were those of an employee of said defendants under circumstances where 5 said defendants had advance knowledge of the unfitness of the employee so acting, 6 and still employed him or her; or, alternatively, said defendants, in the interest 7 of maximizing their business interests, chose to authorize or ratify said conduct. 8 9 6. All of the conduct herein alleged, taken together, constituted conduct that was 10 malicious and oppressive as to plaintiff, in that it was despicable conduct carried 11 on by the KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, with a willful and conscious 12 disregard of the rights or safety of others. That is so demonstrated by the allegations above, which demonstrated that the KMEP, SFPP, KMGP, KM Inc., and DOES i 14 11-20, were aware of the peril, consciously failed to act to avoid the peril, and 4 15 knew that injury or death was a probable result if they acted in that manner. 16 l 17 i i 18 f 19 20 21 j� 22 23 24 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): ( 4r-, This page may be used with any Judicial Council form or any other paper filed with this court. Page 3 8 Form Approved by the ADDITIONAL PAGE ,WCW coondl of Cae/o r" Attach to Judicial Council Form or Other Court Paper SO S' CRC 201.$01 mc.=►New January 1.19871 s Optional Form 7 11/29/2005 .03:28 916924. 0 HAEBASAMENDOLAS�:,ri.o PAGE 02/26 SUf1i,,,.JONS SUM-100 (CITACION JUDICIAL) Fox counruseony rSOLo PAM uSa DE LA CaxrW NOTICE TO DEFENDANT. T VISO AL DEMANDADO): INDER MORGAN ENERGY PARTNERS, L.P. , KINDER MORGAN, INC. , SFPP, L.P., (unified as ECM) ; COMFORCE TECMICAL SERVXCBS, INC. ; EAST BAY MUNICIPAL UTILITY DISTRICT; CAROLLO ENGINEERS, P.C; CAMP, DRESSER & MCKEB; YOVA RE BEING SSUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTEp MIGUEL FUENTES You have 30 CALRNDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call Will not protect you.Your written response must be In proper legal form if you want the court to hear your case There may a court form that you can use for your response.You can find Lhasa coma forms and more Information at the California Courts Online SaWHelp Center(www.courtinfo.cagovlselfhelp),your county law library,or the courthowe nearest you. If you cannot pay the filing fee,ask the covet clerk for a fee waiver form. If you do.not file your response on time,you may lose the ease by default,and your wages,money.and property maybe taken without further warning from the court There are other legal requirements.You may want to call an attorney right away.if you do not know an attorney,you may want to call an attamey referral service.If you cannot afford an attorney,you may be eligible for free legal services from a nonprofit legal services program.You can locate these nonprofit groups at the California I.sgal Services Web site(www lawhalpealifornia.org),the California Courts Online SeB-Holp Center(www.courtinfo.ea.gavisalfheip),or by contacting your local court or county bar association. Time 30 DL49 DE CALENDAR10 despu6s ds quo to anireguen alta cuacl&y spates iegales para presenter uns respuests par eseffto an asta corto y baser quo se entregm arra copla at demandants'Una calix o uns Pemeda teleffinics no to protogen. Su respuesta par eacdto Hene qua ester an Formats legal comacto di dosea qua procesen su rase an la Corte. Es poslbie quo hays an formularfo quo rsted punda usarpara su rospuesta. Puedo oncontrar estos farmulados dots carie y mils infonnaci an el Centro de Ayuda dates Cortes do Callibmia(wivw.courdnfo ce.gov/seffhaiplospenoLg,en la bibiloteca de layes do su candado o an la carts quo to quede m3s cerca. W no puede pagar In cuota do prosented6n,plda at secrefarfo de In aorto qua le dd WI fommularfo'de awneida de pago de cuotm Sl no presenta su raspuests a Vempo,puede parder e1 caso parincwmpPaiento y fe carts le podrA quifarsu sueldo,dlnem y blones s"nt rods advar ertcle Hay otros requisites legates• Es recomendable que Name a un abogado lnmedlawments St no Conde a un abogado.puade flamer a un seMelo de remis tdo a abogades. St no puede pager a un abogsdo,as paMble qua cumpla con los requisites para obtener SwWdos legales gratultas de un programa de serWalos Jegales sin lutes de lues Punds encontrar Was grupos sin tunes de lucre on el sitto.web do California Legal SerWoes,(wwwtawhelpoallfamiaorg),an of Centro do Ayuda do las Cortas do Callffornk I(Www .court/nfo.ca. ov/selAre/ ok7 o poddodose on contacto con to conte o of cola o de ab adds locales, The name and address of the court is: ease ' e 02286 (EI nambre y direcd6n de Is Corte es): iivAnemdmcaeol: Contra Costa Superior Court 725 Court Street Metrtiaez, CA 94553-1233 The name,address,and telephone number of plaintiff's attorney,or plaintiff without an attorney W (E7 nombre,Is direvof6n y el ndmem de felbfono del aboaado del demandants,o del de and que no bens abogado,as).- Steven s):SSteven J. Brewer, Esq. (SBN 94889) 0 8 2-5411 5 -832-1918 GWILLIAM IVARY CHIOSSO CAVALLI & BREWER 1999 Harrison Street, Suite 1600 Oakland, CA 94604-2079 DATE: rn/ +� Clerk,by , eputy Fechs NOV `� Seaetado Ad unto (Forproo of sere o is summons,use Proof of Sery ce of Summons(torn POS-l?!0 f�tmga de este dtatldn use et formulado Proof of Service of Summon (PO 0)). �..... NOTICE TO THE PERSON SERVED:You are served Q,• •.;�1 �i 1. r] as an individual defendant. . :: 11 2. J-'] as the parson sued under the fictitious n of(spe01 cify): • :a� g, [_] on behalf of(specify): C70 .Z C i i/rtj P �� �tsf,' under. i 7j CCP 418.10(corporation) CCP 418.60(minor) 1,1C�S-.•....••,. CCP 416.20(defunct corporation) j CCP 416.70(conservatee) !� TA CQUN•�,-�"' t_..J CCP 416.40(association or partnership) (^)CCP 4.16.90(authorized person) ,tt»•.•� Ll other(speoify): 4, ~alb personaldelive on date: Form Adopted rw Mo WW"vee Coed arCNt Proee,Bee 11!412=465aaladca,pldcouadn SUMMONS S stsR-too Or.�..�arowyt.zoary 11/29/2005 03:28 916921 M HABBASAMENDOLASSo4.0 PAGE 03/26 C 410 ATTORNEY OR PAARTYWVDVT ATrORMY(Name erere bar gam0er,Ane edlrearl: fCR CaVRTNSa oAu t Steven J. Brewer, Eeq. (SBN 948$9) WILLIAM IVARY CHIOSSO CAVALLI & BREWER 1,999 Harrison Street, Suite 1600 Oakland, CA 94604-2079 ip�No,: 510-832-5411 Faxno.: 51.0- B32-],918 -AMMYORIN"kif rutMUORCOURT OFCALFQRKUl COUHWOFContra Costa STRWAoDnu: 725 Court Street 1 � cxyA0zurc0Ds Martinez, CA 94553-1233 Br+ANOH NAME CASE NAME: Fuentes v. Kinder Morgan, et al. CIVIL.CASE COVER SHERT Complex Case Designation °'� � 02286 CE �nll nbed � ;� � Counter [M Joinder ouFiled w(th first appearance by defendant & mended emanded Is Cal.Rules of Court rule 181!) p�T„ exceeds 000 325 ea ( rt, All rrve 5 lh9ms below must be completed sea instnreNons on page2. 1, Check one box below for the case type that bast describes this ease: Auto TortContract Provislonally Complex Civil utlgatlon =Auto(22) []Breach of contrawwarranty(06) (Cal.Rules of Court,rules 4800-18121 M Uninsured motorist(48) Collections(09) Q Antltrust/ti rade regulation(03) Other PUPDIWD(Personal Injury/Property Q insurance coverage(18) Q Construotlon de/ect f1o) Qamagetwrongfut Death{fort Q Other cantract(37) Maas tort(40) =Asbestos(134) Real Property 4cunVes litigation(28) . Q Product liability(24) Q Eminent domaiMnverse Q Envlronmentavroxlo to(30) Q Medical malpraottce(45) condemnation(14) 0 Insurance coverage dalms arising hm the ®Other PUPDIWD(23) yVrortgful eviction(33) above listed provlslonaly complex case [� Nott-PUPDMD(Other)Tort Q typo(41)Other real property(26)Q Enforcement of Jud 8ueinErae toNuMalr business practice(O7) gment Q CIA rights(08) Unlawful Wainer 0 Enforcement of judgment(20) Q Defamation(13) Commercial(31) Miscellaneous Chit Complaint [�Freud(16) Residential(32) Q RICO(27) [�Intellectual property(19) Drugs(38) 0 Other compielnt(not specU/ed above)(42) Judicial Review[]Professional negligence(25) Q Other non-PI(PDAND tort(35) Q Asset forfesure(05) Mlsceltanaaua Chdl Petition Employment d PeL'tion re:arbitration award(11) 0 Partnership and corporate govdmance(21) =Wrongful termination(36) [�Writ of manda(a(02) (�Other petition(not specified above)(43) Q Other employment(18) 0 Other judlclal review(39) 2, Thie case ED Is [] Is not complex under rule 1800 of the CaGfomia Rules of Court.if case is complex,mamthe factors requiting exceptiorial judldal management Large number of separately represented parties d. Q large number of witnesses b. Q Extensive motion pradtceralsingdi imiltor:novel e. Co Coordlnat)onwlthrelated actions pending inone ormomcourts issues that will be time-consuming to resolve in other counties,states or countries,or In a federal court m Q Substantial amount of documentary evidence f. Cj Substantial porn judgment judicial supervislon 3. Type of remedies sought(check all that apply): a. ® monetary b. [] nonmonetary;declaratory or Injunctive re of. c. ® punitive 4. Number of causes of action(spedly): S. This case [ ) is M Is not a class ecfion suit. Dele:November 3, 2005 , Steven J. Brewer,, Eula. ISBN 918891 NOTICE • Plaintiff must Ale this cover sheet with the trot paper filed in the action or proceeding(except smog claims cases or casae filed under the Probate,Family,or Welfare and Institutions Code),(Cal.Rules of Court,rule 201.8.) Failure to file may result in sanctions. •Fla this cover sheet In addition to any cover sheet required by local court rule, •If this case is complex under rule 1800 at soq.of the California Rules of Court,you must serve a copy of thls cover sheet on all athef parties to the action or proceeding.e •Unless this Is a co lex case this cove she all be use far statistics Pu!poses Only. Page I efs . JudolatcbweQorCrlr<anieM CIVIL GAUF;COVER 3HEE6undardadk>�ar masts ch>•o+o plea.coy r,�ooal sown— ' E 11/29/2005 03:28 916925 40 HABBASAMEHDOLASt,-uC.O PAGE 04/26 �- 1 Steven J.Brewer,Esq.{State Bar No. 94859} GWELLIAM,IVARY,CHIOSSO,CAVALLI&BREWER 1999 Harrison Street,Suite 1600 INS Nov Oaldand,CA 94612-3528 P 1. S9 Telephone: 510 832-5411 K rum 3 Facsunile: 510}832.1918elA A.tri Cxf- e 4 Robert A.Amendola,Esq.(State Bar No. 122688) 5 HABBAS,AINENDOLA&ASSOCIATES 1451 River Park Drive,Ste.298 6 Sacramento,CA 95815 Telephoue: 916)924-8787 . 7 Facsimile: - (916) 924-8440 oc 9 Attorneys for Plaintiff 3: Miguel Fuentes PER LOCAL w Q Cr-MR* m 9 D IS A°- V, 10 SUMMONS 1S:SUEA it a d 12 . IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA U S 13 IN AND FOR THE COUNTY OF CONTRA COSTA 6 14 C05. 0228 _ 15 MIGUEL FUENTES, COMPLAINT FOR DAMAGES a^ v < 16.. Plaintiff, 1. Negligence as against the KM Defendants and DOES 1-25 c 17 2. Strict Liability for Ultrahazardous y vs. Activity as against the KM Defendants `- 18 and Does 1-25 3. Willful'Misconduct as against the KM Q 19 KINDER MORGAN ENERGY PARTNERS, Defendants and Does 1-25 LYKINDER MORGAN,INC.,SFPP,L.P., 4. Negligence as Against COMFORCE and — 20 (unified as ,COMFORCE TECEMCAL Does 26-50. . SERVICES,INC.;EAST BAY MUNICIPAL S. General Negligence/Dangerous v 21 UTILITY DISTRICT;CAROLLO Condition ofPublic Property as against ENGINEERS,P.C;CAMP,DRESSER& EBMUD and Does 51-75 22 MCKEE;DOES 1-100;inclusive, 6. Negligence as against CAROLLO and CDM and Does 76-100 23 Defendants. 24 25 26 728 27- 28 -t• COMPLAW FOR DAMAGES Fuen[es v.Fonder Morgan et a/. 11/29/2005 03:28 91692: d@ _ HABBASAMEND0LASauC.0 PAGE 05/26 1 PLAINTOTS 2 1. Plaintiff MIGUEL FUENTES was severely injured on November 9,2004 while 3 working for MOUNTAIN.CASCADE,INC.(MCI)on a water supply pipeline installation it 4 Walnut Creek,California commonly known as the Walnut Creek-San Ramon Valley 5 6 Improvement Project(PROJECT). The route of the pipeline was generally to be above, 7 parallel to,and east of a high pressure fuel pipeline system,hereafter referred to as the W g WMER PIPELINE. w m 9 DE+ E NDANTS 10 2. Defendant KINDER MORGAN ENERGY PARTNERS,L.P.is a limited I 1 partnership under the laws of the state of Delaware and is authorized to do business in the > 12 d State of California. . syr 13 j H 14 3• Defendant SFPP,L.P.' is a limited partnership under the laws of the state of a 15 Delaware and is authorized to do business in the State of California. U $ 16 4. Defendant KINDER MORGAN,INC.is a corporation organized and existing ¢. d i7 under the laws of the State of Delaware and authorized to do business in the State of 18 California. KINDER MORGAN ENERGY PARTNERS,L.P.,SFPP,L.P.,and KINDER � 19 a MORGAN,,INC.are hereafter referred to as the KM defendants. Plaintiff MKfUEL 20 -FUENTES is informed and believes that at all tithes relevant hereto,a unity of interest and t� 21 22 ownership exists amongst the ICM Defendants such that any individuality or separateness 23 between the entities has ceased to exist. 24 5. Defendant COMFORCE TECHNICAL SERVICES,INC.,(COMFORCE),is a 25 corporation organized and existing under the laws of the state of Delaware and authorized to 26 do business in the state of California. 27 28 2- COMPLAINr FOR DAMAGES Fuentes K Kinder Mmxm at aL 11/29/2005 03:28 916924 f'0 HABBASAMENDOLAS5uC.0 PAGE 06/26 1 6. Defendant EAST BAY MUNICIPAL UTILITY DISTRICT,(EBMUD),is a 2 public entity maintaining its headquarters in the County of Alameda, State of California. 3 Plaintiff MIGUEL FUENTES presented a claim to EBMUD pursuant to Government Code §910 on or about May 2,2005. On or about May 11,2005 EBMUD served its Notice of 5 G Rejection of Claim. 7. Defendant CAROLLO ENGINEERS,P.C.,(CAROLLO),is a corporation L" gorganized and existing under the laws of the state of Arizona and authorized to do business in sQJ , .m 9 the State of California. 10 8. Defendant CAMP,DRESSER and MCKEE,(CDM),is a corporation organized < 11 and existing under the laws of the state of Massachusetts and is authorized to do business in > 12 `f the state of California. ` 9. The true names or capacities,whether individual,corporate,associate or O N � 14 - - z . 15 otherwise,of DOES 1 through 100,inclusive,and the factual basis of liability against said v e 16 defendants,and'eacb of them,are unknown to plaintiff at this time,who,therefore,sues said Q a 17 defendants by such fictitious names,and when the true names and capacities of said 18 defendants,or facts rendering said defendants liable,have been ascertained,plaintiffs will 19 amend this Complaint accordingly. Plaintiff is informed and believes and thereupon alleges 20 that each defendant designated herein as a DOE is responsible,negligently or in some other U 21 actionable manner,for the events and happenings hereinafter referred to and caused injuries 22 23 and damages proximately thereby to plaintiff,as hereinafter alleged,either through said 24 defendants own conduct or through the conduct of their agents,servants or employees,or due 25 to the ownership,lease or sale of the instrumentality causing the injury,or in some other 26 manner. 27 1 28 -3- COMPLAINT FOR DAMAGES j; 11/29/2005 03:28 91692` _;40 . HABBASAWNXX_A9b0C.0 PAGE 07/26 1 10. Plaintiffs are informed and believe and thereupon allege that all times 2 mentioned herein,Defendants,and each of them,were the agents,servants,employees,or join 3 venturers of their co-defendants,and that in doing the acts herein alleged were acting within 4 the scope,course and authority of said agency,employment or joint venture. 5 GENERAL ALLEGATIONS 6 11. On and before November 9,2004,plaintiff MIGUEL FUENTES,was an UJ g employee of MOUNTAIN CASCADE,INC.,and was working in and adjacent to a trench LU 3 - W_ 9 constructing the EBMUD pipeline when the high pressure fuel pipeline owned,operated and m C 10 controlled by the KM Defendants was punctured releasing petroleum into the atmosphere a 11 where it was ignited by the welding activities of employees of MATAMOROS PIPELINES, > g 12 U INC.(MATAMOROS)causing an explosion. . '19 13 `*'"^ 14 12. At all times relevant hereto,the KM Defendants were the owners,operators an o ,� 15 controlling entities of the high pressure fuel pipeline system referred to as the KINDER v U g 16 PIPELINE. } CA Q a 17 13. At all times relevant hereto,COMFORCE performed work on the KINDER 113 PIPELINE.and other work in relation to the PROJECT,including but not limited to 19 `t ascertaining and marking the location of the buried KINDER PIPELINE to allow Plaintiff and _J 20 others to safely work in the area of the PROJECT. u 21 22 14. At all times relevant hereto,EBMUD was engaged in the business of planning, 23 designing,owning,supervising,controlling and constructing a water.supply pipeline herein 24 known as the PROJECT. 25 15. At all times relevant hereto,CAROLLO and CDM were engaged in the 26 business of planning and designing the PROJECT and in the course of their work provided 27 drawings and plans to EBMUD and other's. A* 28 • .q. i COMPLAWT FOR DAMAGES Fuentes v 9bu&r Morgan et dl. i 11/29/2005 03:28 91692,. "40 HABBASAMEMDOLASsUC.Q PAGE 08/26 1 16. Prior to and on November 9,2004,Defendant"UD had contracted with 2 MOUNTAIN CASCADE,INC.,as well as others,to install the water supply pipeline in 3 Walnut Creek. 4 17. On November 9,2004,plaintiff MIGUEL FUENTES was severely injured, 5 6 including but not limited to,suffering severe and disabling burns over his body,permanent disfigurement and disability as a result of the explosion. oLUe � g FIRST CAUSE OF ACTION a 9 (NEGLIGENCE as against the KM Defendants and DOES 1-255) m as 10 18_ Plaintiff realleges paragraphs 1 through 17 hereof and Incorporates them by < 11 reference as though fully set forth"herein. > 12 u g 19. The KM Defendants,DOES 1-25,and each of thein;owed'plaintiffMIGUEL 13 FUENTES a duty.of due care. The KM Defendants,and DOES 125,and each of them u� 14 O 0 15 breached their duty of due care to Plaintiff MIGUEL FUENTES•by negligently,carelessly and X ° e e 16 recklessly owning,operating,supervising and controlling the KINDER PIPELINE on and 17 prior to November 9,2005. 18 20. The KM Defendants,DOES 1-25,and each of them,breached their duty of due 4 19 care to Plaintiff WGUEL FUENTES and others similarly situated in the following respects, 20 inter a11Q by negligently,carelessly and recklessly: V 21 22 hiring,retaining,training and supervising their employees,agents,representatives and 23 contractors,including amongst others COMFORCE,in the performance of the work on the 24 KINDER PIPELINE and the PROJECT involving the determination of the location of the 25 KINDER PIPELINE prior to workers attempting to safely excavate the EBMUD water 26 supply pipeline and work in the area of the KINDER PIPELINE; 27 28 COMPLAINT FOR DAMAGES 11/29/2005 03:26 916921. 40 HABBASAMENDOLASoLIC.O PAGE 09/26 1 . failing to create,obtain and/or analyze appropriate utility maps,plans or drawings 2 depicting the accurate location of the KINDER PIPELINE or in the alternative,precisely 3 and accurately ascertain the location of the KINDER PIPELINE within the confines of the 4 PROJECT prior to permitting workers to excavate and install the EBMUD water supply • 5 . 6 pipeline; 7 failing to secure accurate and precise information concerning the location of the KINDER tZ Ui 8 PIPELINE in the area of the explosion so that accurate and proper marking of the location 9 of the KINDER PIPELWE at or near its intersection with the EBMUD water supply 10 pipeline was accomplished prior to commencement of construction in the area; � 11 ¢ * failiog to obtain permits and other authorization to allow work to be performed in the > 12 d U S g 13 vicinity of the KINDER PIPELINE and EBMUD water supply pipeline; (Oa 14 • failing to locate and field mark the location of the KINDER PIPELINE prior to LnO = a 15 commencement of excavation by workers on the PROJECT in violation of, inter alfa, �. 16 Government Code section 4216.3; 17 • failing to relocate the KINDER PIPELINE to a location away from the immediate vicinity 19 of the PROJECY and EBMUD water supply pipeline prior to construction commencing on Q 19 J 20 the PROJECT; V 21 • failing and refusing to address and remedy concerns of EBMUD,Modern Continental Z2 Construction and others regarding the need to accurately and precisely locate the KINDER 23 PIPELINE as related to construction of the EBMUD water supply pipeline; 24 • failing to communicate to and inform workers on the PROJECT of necessary and .25 26 appropriate knowledge and warnings concerning the location of the KINDER PIPELINE, and dangers related thereto which might be encountered in the course of construction; 27 28 -6- COMPLAINT FOR DAMAGES 1 11/29/2005 03:29 91692 40 HABBASAMENDOLASDuC.O PAGE 10/26 1 • failing to provide necessary and adequate safeguards to workers on the PROJECT so as to 2 prevent inadvertent breach of the KINDER PIPELINE during construction of the .3 PROJECT; 4 • permitting and agreeing with EBMUD,MCI and others to allow use of power operated or 5 6 power driven excavating or boring equipment in close proximity of the KINDER 7 PIPELINE without proper safeguards; oe ' 3 8 • failing to inspect as necessary the proximityy of workers to the KINDER PIPELINE under W W. 9 such circumstances that these defendants knew or should have known that the KINDER oa 10 PIPELINE could be breached or damaged by excavation work on the PROJECT; 11 • failing,by and through Mike.Briggs,to inform MCI and others working in the excavation � 12 v 3 ' 13 area of the known deviation of the KINDER PIPELINE into the path of the EBMUD watur 14 supply pipeline,therefore putting workers in immediate and substantial danger of injury or yj c 15 death; a 16 • failing to do any or all of the above despite knowing that contractors which had previously a 17 performed work at the PROJECT site had difficuhy ascertaining the location of the _ 18 KINDER PIPELINE so it could be avoided during excavation;and a 19 20 • failing to do any or all of the above despite knowledge that the KINDER PIPELINE had 21 been inadvertently damaged previously during excavation at two different locations within u 22 the PROJECT. 23 21. As a direct and proximate result,of the aforesaid conduct of the defendants,and 24 each of them,plaintiff MIGUEL FUENI'ES was serious! y irtjuted and has incurred and 25 continues to incur damages,including but not limited to,damages to his person,medical 26 expenses,loss of earnings and earning capacity,and general damages-in sums according to 27 ( 28 proof at the time of trial. .7. COMPLAINT FOR DAMAGES Fuentes v Ktnder Morgan et aG s 11/29/2005 03:26 91692 40 HABBASAMENWLASzuC.O PAGE 11/26 i SEC ND CAUSE OF ACTION 2_ (STWCT LIABILITY for'ULT OVS ACTIVITY as against the KM 3 Defendants and DOES 1-25) 4 22. Plaintiff realleges paragraphs 1 through 21 hereof and incorporates them by 5 reference as though fully set forth herein. 6 7 23. At all times relevant hereto,the KM Defendants and DOES 1-25,and each of a UJ g them,designed,manufactured,sold,-owned,controlled,operated,maintained;inspected, a 9 distributed,transported,located,field marked,monitored and managed the KINDER 10 PIPELINE and the ultrahazardous and flammable material therein. 11 . 4 24. Such activities create the existence of a high degree of danger and risk to > 12 v persons and property,creating the likelihood that harm resulting from such activities would be 13 ( OO great. Such activities have dangerous consequences to residential environments in which they 14 a . 2 a 15 are conducted which outweigh the benefits and value to the community. v 16 25. , Such activities were a substantial factor in causing harm to Plaintiff MIGUEL d 017 FUENTES and others similarly situated,as-herein alleged, 18 26. The Wuries and damage to Plaintiff MIGUEL FUENTES are of the kind that �Q� 19 would be anticipated as a result of designing,manufacturing,selling,owning,controlling, ..+ 20 3 21 operating,maintaining,inspecting,distributing,transporting,locating,field marking, u monitoring and managing petroleum pipelines including the KINDER PIPELINE in residential 2-2 23 neighborhoods and communities,thereby creating such a significant and serious danger that it 24 is justifiable to impose strict liability upon these defendants, 25 27. As a direct and proximate result of the aforesaid conduct of the defendants,and 26 each of the plaintiff FUENTES was seriously m,p y injured and has incurred and 27 continues to incur damages,including but not limited to,damages to his person,medical 28 COMPLAW FOR DAMAGES Fuentes v.XWer Morgan et at F 11/29/2005 03:28 91692, ,40 HABBASAMENDOLAS�auC.O PAGE 12/26 1 expenses,loss of earnings and earning capacity,and general damages in sums according to 2 proof at the time of trial. 3 THIRD CAUSE OF ACTION 4 (WI' LM MISCONDUCT as against the KM Defendants and DOES 1-25) 5 28. Plaintiff realleges paragraphs 1 through 27 hereof and incorporates them by 6 reference as though fully set forth herein. oc g 29. At all times relevant hereto,the KM Defendants and DOES 1-25,and each of 3 w m 9 them,as owners,operators and entities retaining control of the KINDER PIPELINE engaged 10 in conduct,willfully and with conscious disregard of the rights and safety of others which 4 11 resulted in serious and grievous injuries to Plaintiff MIGUEL FUENTES and others similarly > N12 u $ situated in the following respects,Inter alfa,by: 5 13 stn tt a 14 • Improperly hiring,retaining,training and supervising their employees,agents, T0 15 representatives and contractors,including amongst others COMFORCE,in the 0 a < 16 performance of the.work on the KINDER PIPELINE and the PROJECT involvirig the 17 e deteanination of the location of the KINDER PIPELINE prior to workers attempting to 18 safely excavate the E$MUD water supply pipeline and work in the area of the KINDER 19 PIPELINE with the knowledge that any failure on the part of those persons in the 20 V 21 performance of their duties would likely result in serious injury or death to persons 22 working in the area; 23 • Knowingly providing maps,plans and drawings to entities performing work on the 24 PROJECT which did not accurately depict the location of the KINDER PIPELINE; 25 • Knowingly and deliberately failing to create,obtain and/or analyze appropriate utility 26 maps,plans or drawings depicting the accurate location of the KINDER PIPELINE; 27 28 .9. COMPLAIN?PGI.DAMAGES { Fuentes v.Kinder AforPmt et oL 11/29/2005 03:28 91692. 40 NABBAS*ENDOL.ASaJC.0 PAGE 13/26 1 Knowingly failing to take necessary precautions to inform persons excavating in the area 2 where the KINDER PIPELINE intersected with the path of the EBMUD water supply 3 pipeline of that intersection or incursion prior to commencement of construction in the 4 area; 5 6 • Wrongfully failing to obtain permits and other authorization to allow woik to be performed 7 in the vicinity of the FINDER PIPELINE and EBMUD water supply pipeline; oc "' 8 • WrongfUlly failing to locate and field mark the location of the KINDER PIPELINE prior Ui3 m 9 to commencement of excavation by workers on the PROJECT in violation of,inter alta, 10 Government Code section 4216.3,and so acting with the knowledge that the failure to do t 11 so in the area of the intersection of the EBMUD water supply pipeline and the KINDER > 12 u 13 PIPELINE would likely result in death or serious injury to persons working in the area of A* t - 14 the excavation; Ii� z15 • Intentionally and falsely stating to those persons excavating in the area where the EBMUD u g 16 water supply pipeline intersected with the KINDER PIPELINE that it had properly and r > 17 correctly placed field markings to represent the location of the KINDER PIPELINE; 18 • Intentionally and falsely stating to those persons excavating in the area where the EBMUD 19 J 20 water supply pipeline intersected with the KINDER PIPELINE that the field markings V21 accurately represented the location of the KINDER PIPELINE and that MCI and DOES 22 26-100 need only follow the field markings to avoid contact with the KINDER PIPELINE, 23 and that additional loc4ting and monitoring of the KINDER PIPELINE location was not 24 necessary; 25 • Maintaining a company wide practice,by virtue of a corporate policy of reckless and 26 deliberate inaction and indifference,of failing to provide accurate information regarding 27 28 the precise location of the KINDER PIPELINE to entities involved in the PROJECT, E -io- COMPLAINT FOR DAMAOES Flseniea 7.Kinder Moreau d d. i 11/29/2005 03:28 91692,, 40 HABBASAMENDaAStod.0 PAGE 14/26 l . l despite knowing that such practices had previously resulted in damage to the KINDER 2 PIPELINE from excavation work done near it; 3 • Wrongfully failing to relocate the KINDER PIPELINE to a location away from the 4 immediate vicinity of the PROJECT and B13MUD water supply pipeline prior to 5 6 construction commencing on the PROJECT; 7 • Knowingly and intentionally failing and refusing to address and remedy concerns of ed "' g EBMUD,Modern Continental Construction and others regarding the need to accurately Ui e; 9 and precisely locate the KINDER PIPELINE as related to construction of the EBMUD CR 10 water supply pipeline; J > l 1 . Knowingly and intentionally failing to communicate to and inform workers on the 12 ( , v � . � 13 PROJECT of necessary and appropriate knowledge and warnings concerning the location 14 of the KINDER PIPELINE,and dangers relaxed thereto which might be encountered in the 15 course of construction; o� U d a 16 . Wrongfully failing to provide necessary and adequate safeguards to workers on the " 17 PROJECT so as to prevent inadvertent breach of the KINDER PIPELINE during _ 18 construction of the PROJECT; Q 19 • Wrongfully permitting and agreeing with EBMUD,MCI and others to allow use of power 20 V21 operated or power driven excavating or boring equipment In close proximity of the 22 KINDER PIPELINE without proper safeguards; 23 . Wrongfully failing to inspect as necessary the proximity of workers to the KINDER 24 PIPELINE under such-circumstances that these defendants knew or should have known 25 that the KINDER PIPELINE could be breached or damaged by excavation work on the 26 PROJECT; 27 28 -t t- COMPLAIM'POR DAMAGES 11/29/2005 03:28 91692; .10 HABBASAMENDOLASaX.0 PAGE 15/26 1 Wrongfully failing to do any or all of the above despite knowing that contractors which 2 had previously performed work at the PROJECT site had difficulty ascertaining the 3 location of the FINDER PIPELINE so it could be avoided during 'excavation;and 4 • Wrongfully wiling to do any or all of the above despite knowledge that the KINDER 5 6 PIPELINE had been inadvertently damaged previously during excavation at two different 7 locations within the PROJECT. Uj g 30. The ICM Defendants,DOES 1-25,and each of them,knew that applicable law UJ W- 9 mandated that the location of underground installations such as the KINDER PIPELINE that m 10 may be reasonably anticipated to be encountered during excavation work be determined prior Q11 to opening an excavation. Nonetheless,these defendants willfully,intentionally and with > 12 U conscious disregard of the probable consequences failed to determine and mark the accurate 13 t' ", tcL 14 location of the KINDER PIPELINE in the area of intersection with the EBMiJD water supply • 0 15 pipeline before the commencement of the excavation,which would have resulted in the v 6 e 16 relocation of the KINDER PIPELINE or in other appropriate measures to safeguard workers. >= Q R 17 As a result of the conduct of these defendants,the KINDER PIPELINE was breached and "' 18 Plaintiff MIGUEL FUENTES was seriously injured. Q 19 31. The KM Defendants and DOES 1-25 and each of them,had knowledge of the .� 20 V21 perils alleged above,which resulted in Plaintiff MIGUEL FUENTES' injuries,consciously 22 and with disregard failed to act to avoid.the perils alleged,and did so despite knowing that 23 injury or death of workers on the PROJECT was a probable result. 24 32. The acts herein alleged are consistent with and in confvrntity with an ongoing 25 corporate or company policy of each of these defendants in the interest of cost-saving and 26 company profit These defendants purposely and intentionally ignored a multitude of incident 27 involving its pipeline operations nationwide,including 44 incidents in the KM Defendants' 28 COMPLANT FOR DAMAaEs Fuentes v.Kinder Moroan ee at 11/29/2005 03:28 91692, 0 HABBASAMEMXLAS—jC.0 PAGE 16/26 1 Pacific Operations Unit alone,sufficiently serious to warrant federal reporting pursuant to 49 2 C.F.R.§195.54 since January 1,2003. Said incidents resulted in a federal Corrective Action 3 Order from the Department of Transportation(DOT)and a determination by DOT that 4 continued operation of the Pacific Operations Unit would be hazardous to life,property and 5 the environment. The Order required the KM Defendants to address safety policy deficiencies 6 7 including but not limited to line marking and on-call procedures. Despite knowledge of the U" g consistent pattern of eoaduct by its employees leading to these regularly occurring incidents, UJ m 9 the KM Defendants did intentionally and with conscious disregard fail to improve,update or 10 modify the deficient safety policies and practices which caused such incidents and failed to 11 meaningfully discipline the employees whose conduct led to such incidents,but rather the TCM 12 d Defendants authorized or ratified such conduct. J: 13 `^ ti 14 33. The acts herein alleged were either the acts of an officer,director or managing _ H zagent 15 of the KM Defendants and DOES 1-25,or the acts were consistent with and in FC Po U a 16 conformity with the corporate or company policy of each of these defendants;or said acts were >- m Ce B 17 those of an employee of these defendants under eircurnstances where these defendants had 18 advance knowledge of the unfitness of the employee,retained said employee,and/or otiose to < 19 Q authorize or ratify said conduct. . ri 20 y 34. The conduct herein alleged was despicable,malicious and oppressive as to v 21 Plaintiff MIGUEL FUENTES,and was carried on by these defendants with a willful and 22 23 conscious disregard of the rights and safety of Plaintiff MIGUEL FUENTES and others 24 similarly situated. 25 35. As a direct'and proximate result of the aforesaid conduct of these defendants, 26 and each of them,plaintiff MK}UEL FUENTES was seriously injured and has incurred and 27- continues to incur damages,including but not liralted to,damages to his person,medical 28 -13- COMPLAW FOR DAMAGES Fuentes v Kinder Morgan el at: 11/29/2005 03:28 91692•- 4e HABBASAMEMDOLASbuC.0 PAGE 17/26 i expenses,loss of earnings and earning capacity,general damage,and punitive and.exemplary 2 damages in sums according to proof at the time of trial. 3 FOUTfI CAUSE OF ACTION 4 (NEGLIGENCE as against COMFORCE and DOES 26-50) S 36. Plaintiff realleges paragraphs 1 through 17 hereof and incorporates them by 6 7 reference as though fully set forth herein. W g 37. At all times relevant hereto,in the performance of their duties and obligations, Ui W 9 defendants COMFORCE and DOES 26-50,had a duty of due care with regard to the CM °e 10 ownership,supervision,control,surveying,marking and operation of the KINDER PIPELINE d 11 in a safe and proper manner to insure the safety of the public and those working on the > 12 PROJECT,including PlaintiffMIGUEL FUENTES and others similarly situated,and to 5 ' 13 +� follow rules'regulations and statutes in connection with their duties and obligations. _ 14 38. At all times relevant hereto,COMFORCE and DOES 26-50,and each of them, - - v < 0 16 breached their duty of due care by negligently,carelessly and recklessly,inter alfa: C5 17 • Hiring,training,retraining and supervising their employees,agents,representatives and 18 independent contractors in the performance of the work on the KINDER PIPELINE in 19 Q - � relation to the PROJECT,including but not limited to failing to determine the location of r 20 ? the KMER PIPELINE before allowing workers to excavate and work in the area of the -v 21 22 EBMUD water supply pipeline and the KINDER PIPELINE; 23 • Failing to create,obtain and/or analyze the proper utility maps,plans and drawings .24 depicting the accurate location of the KINDER PIPELINE,or otherwise determining its 25 :precise location prior to allowing workers to excavate and work in the area of the EBMUD 26 water supply pp y pipeline and the KINDER PIPELINE; 27 28 .t4- COMPLAINT Fol.DAMAGES F'utne��v IC1ndsM 1,lnranw o/..I 11/29/2005 83:28 916924. le HABBASAMENDOIAS-LxjC.O PAGE 18/26 I • Failing to obtain the proper permits and other authority to allow for work to be completed 2 in the vicinity of the KINDER PIPELINE and the EBMUD water supply pipeline; 3 • Failing to locate and field mark the precise location of the KINDER PIPELINE prior to 4 excavation in violation of,inter alfa,Government Code§4216.3; 5 6 • Failing to inspect as necessary the KINDER PIPELINE during the work on the PROJECT 7 when these defendants_knew or should have known through contact with others Involved' at the PROJECT that the KINDER PIPELINE could be damaged by the excavation work Ui m 9 done on the PROJECT; 10 Failing to properly use locating equipment to locate and accurately mark the KINDER 11 PIPELINE; < 12 Y13 . Failing to adequately or accurately mark the KINDER PIPELINE by a means that ` f . W'n < a V identified the precise location of the KINDER PIPELINE where it intersected with the 15 proposed excavation path of the EBMUD water supply pipeline;and aA V < 16 . Failing to secure from the KM Defendants,their employees and agents,accurate °� 17 Q information concerning the precise location of the KINDER PIPELINE in the area where 18 the fire and explosion occurred so that proper marking of the KINDER PIPELINE could Q 19 20 be made at or near.its intersection with the EBMUD water supply pipeline. u21 39. As a direct and proximate result of the aforesaid conduct o£the defendants,aid 22 each of them,plaintiff MIGUEL FUkMS was seriously injured and has incurred and 23 continues to incur damages,including but not limited to,damages to his person,medical 24 expenses,loss of earnings and earning capacity,and general damages in sums according to 25 proof at the time of trial. 26 27 t� 28 i -i 5- COMPLAINT FOR DAMAGES Fzwwr.R v.Kbider Marnmt et at i 11/29/2005 03:25 91692• 40 HABBASAME OOLASad6.0 PAGE 19/26 1 FLM CAUSE OF ACTION 2 (GENERAL NEGLIGENCE/DANGEROUS CONDITION OF PUBLIC PROPERT 'as 3 against EBMUD and DOES 51-75) 4 40. Plaintiff realleges paragraphs 1 through 17 hereof and incorporates them by 5 reference as though fully set forth herein. 6 7 41. At all tunes relevant hereto,EBMUD was engaged inthe business of planning, oe LU g designing,owning,supervising,controlling and constructing a water supply-pipeline creating, W c= 9 the need for the construction PROJECT herein described. w 10 42. At all times relevant hereto,defendants EBMUD and DOES 51-75,and each of Q 1 them,owed a duty of due care to others,including Plaintiff MIGUEL FUENTES and others > 12 U3 13 similarly situated,with regard to the planning,design,ownership,supervision,control, r` S 14 surveying and construction of the water supply pipeline and the PROJECT in a safe manner so Oz z a 15 as to insure the safety of the public and those working on the PROJECT,including Plaintiff V a 16 NUGUEL FUENTES. Q ° 17 43. At all times relevant hereto,defendants EBMUD and DOES 51-75,and each o 18 them,breached their duty of due we by negligently and carelessly,inter glia: < 19 Hiring numerous contractors to perform work on the PROJECT despite their poor safety 20 21 records; v 22 • Supervising and retaining control over the various contractor entities in the perfainnance o 23 their work; 24 • Despite knowledge of the incursion of the KINDER PIPELINE into the path of the 25 EBMUD water supply pipeline as evidenced by various maps and drawings reviewed by 26 these defendants,field data likewise revealing the presence of the incursion and reports 27 28 from contractors on the PROJECT that they had extreme difficulty locating the KINDER COMPLAINT FOR DAMAGES j Fuentes v Kinder Um van jet at. 11/29/2005 03:28 916921 . 0 HASBASAMENDMAS5uG.0 PAGE 20/26 1 PIPELINE in this area,these defendants Failed to determine the precise location of the 2 KINDER PIPELINE before allowing excavation work to commence in the area of the 3 EBMUD water supply pipeline and the KINDER PIPELINE; 4 • Pressuring and requiring MCI to complete the PROJECT without taking adequate steps to 5 6 insure the safety of the public and those working on the PROJECT,including Plaintiff, 7 MIGUEL FUENTES,and others similarly situated. 8 • Failing to create,obtain or analyze appropriate design maps and field marking data prior to 9 allowing-the excavation work near'the intersection of the KINDER PIPELINE and the m 10 PROJECT; 4 a 1! • Failing to obtain the proper permits and other authority to allow work to be completed by 12 v 13 MCT and others in the vicinity of the KINDER PIPELINE and EBMUD water supply 10� pipeline; to 14 a 15 • Failing to require relocation of the KINDER PIPELINE to a location out of the pathway U <1 16 of the EBMUD PROJECT; Q 17 . Failing to notify and communicate with MCI and others,including but not limited to _ 18 CAROLLO and CDM,of concerns of other entities which had worked or were working on Q 19 _ 20 the PROJECT of the proximity of the KINDER PIPELINE to the EBMUD water supply �S 21 pipeline path; U 22 • Failing to halt work unless and until these defendants could assure all work around the 23 KINDER PIPELINE and EBMUD water supply pipeline was conducted with adequate an 24 proper safeguards and safe and acceptable means; 25 • Failing to conduct or require of its contractors and others,competent,daily inspections 26 prior to commencement of work and as needed throughout the shift,to reasonably ascertair 27 28 cots mAtNT FOR DAMAGFS Flaw!..w Ir;-d—AA— w..of 11/29/2005 03:28 . 916924 0 HABBASAMENDOLASSLo .0 PAGE 21/26 1 the presence of a dangerous condition such as that which resulted in the Mire and explosion 2 causing the injuries to Plaintiff,MIGUEL KMNTES; 3 Failing to remove,or require others working on the PROJECT to remove workers, 4 including Plaintiff MIGUEL FUENTES,and others similarly situated,from the area of the S 6 KINDER PIPELINE until all necessary precautions had been taken to assure the safety of those individuals; LU 8 • Failing to notify MCI and others of hazards and dangers related to the proximity of the LU Cd 9 KINDER PIPELINE to the EBMUD water supply pipeline path and the attendant danger m `a 10 of using equipment to excavate and install the EBNM water supply pipeline of the Q11 hazards and dangers related thereto,despite knowing that a prior contractor had informed 12 v 13 these defendants that the PROJECT path was dangerously close to the existing high v, pressure fuel line;and � 14 's 15 • Maintaining a need for rapid completion of the PROJECT and failing to own,manage and Z 8 u 16 control the PROJECT and the property,including the public easement;in such a way as to °' 17 so as to permit workers to engage safely in their work. 18 44. EBMUD and DOES 51-76,and each of them,created a dangerous condition of Q 19 public property by performing work,or allowing work to be performed on its behalf and with 20 3 21 its consent,on the PROJECT in the immediate vicinity of the KINDER PIPELINE rather tan v 22 insisting and requiring relocation of the KINDER PIPELINE or the PROJECT pathway to a 23 location not in close proximity to the KINDER PIPELINE. 24 45. These defendants,and each of them,had both actual and constructive notice of a 25 dangerous condition of public property arising from the location of the KINDER PIPELINE 26 within the confines of the PROJECT and allowing work to be performed In close proximity to 27 28 COMPLAtNT FOR DAW[AOES Fiawroi Xf�e►Afnrrorw e!n! 11/29/2005 03:28 91692, HABBASAWMOI.AS—'%.0 PAGE 22/26 1 the KINDER PIPELINE,in sufficient time to cure the dangerous condition but took no steps 2 to do so. 3 46: As a direct and proximate result of the aforesaid conduct of the defendants,and 4 each of them,plaintiff MIGUEL FUENTES was seriously injured and has incurred and 5 . continues to incur damages,including but not limited to,damages to his person,medical 6 7 expenses,loss of earnings and earring capacity,and general damages iisums according to W g proof at the time of trial. w 9 SIX'T'H CAUSE OF ACTIQN co • 10 (NEGLIGENCE as against Carolio and CDM and DOES 76-100) Qa I 1 47. Plaintiffrealleges paragraphs 1 through 17 hereof and incorporates them.by > s 12 u. a reference as though fully set forth herein. 13 14 48. At all times relevant hereto,defendants CAROLLO and CDM and DOES 76- z _ 15 100,and each of thean,were engaged in the business of planning and designing the e V a$ 16 construction PROJECT,and in the course of that employment,provided drawings and plans to r 17 EBMUD and others. Due to the close proximity of the existing KINDER PIPELINE to the '- 18 EBMUD water supply pipeline and the scope of work involved in the PROJECT,these Q 19 defendants,and each of them,had a duty of due care to,inter alfa;plan and design the 20 3 PROJECT in a safe manner to insure the safety of the public and those working on the V 23 PROJECT,including Plaintiff MIGUEL FUENTES,and to follow applicable rules, 22 23 regulations and statutes. 24 49. At all times relevant hereto;CAROLLO,CDM and DOES 76-100,and each of 25 them,negligently and carelessly breached that duty of due care by,inter alio; 26 • Preparing and designing plans,drawings and maps for the PROJECT under circumstances 27 where they knew or should have known of the incursion of the KINDER PIPELINE into 28 .19- COMPLAINT FOR DAMAGES Ao-ftso.n jrhw4w mews i o s1 n/ i i 11/29/2005 03:28 91692. 10 HABBASAMENDOLA&-,o,.0 PAGE 23/26 ,M J 1 the path of the PROJECT,yet failed to conduct a thorough and adequate survey of the 2 conditions of the site so as to-incorporate in to the plans adequate and necessary safeguards 3 for PROJECT workers exposed to inherent hazards; 4 • Failing to evaluate the need for re-design and modification of the PROJECT at the time 5 6 these defendants became aware of and discovered the proximity of the KINDER 7 PIPELINE and its incursion into the PROJECT path; 8 • Intetpreting available field data,including pot-holing and related information,and failing w °C 9 to request additional or missing data as to the proximity ofthe'KINDER PIPELINE to the m 14 proposed path of the EBMUD water supply pipeline in the vicinity of the explosion, a 1 > "l placing workers at grave risk of fire and explosion,which in fact occurred;and Q � 12 U 13 -i Failing to prepare drawings,maps and plans which effectively warned and communicated 06- 9 11 14 to allpersons reasonably relying thereon,including those persons excavating in the area,v 0 _ 15 the specific location of those areas where the KINDER.PIPELINE came in close proximity U 16 to the path of the EBMUD water supply pipeline,despite knowledge of the extreme. Q 17 hazards posed by the incursion of the KINDER PIPELINE into the path of the PROJECT. 18 50. CDM and DOES 76-100,and each of them,negligently and carelessly entered Q 19 ., into a subcontract with CAROLLO regarding the portion of the PROJECT at.issue in this j 20 u21. lawsuit,under circumstances where it knew or should have known that CAROLLO was a 22 contractor of insufficient capability to safely conduct this work. 23 51. CDM and DOES 76-100,and each of thew,negligently and carelessly 24 supervised and retained control over CAROLLO regarding its work on the portion of the 25 PROJECT at issue in this lawsuit. 26 52. As a direct and proximate result of the aforesaid conduct of the defendants,and 27 each of them,plaintiff MIGUEL FUENTES was seriously lrjured and has incurred and 28 -20- COMPLAMr FOR DAMAGBS. FIIPMIPlV XiwdPi�Aroni/d n► � . 11/29/2005 03:28 916924 HABBASAMENDOL .;:D PAGE 24/26 1 continues to incur damages,including but not limited to,damages to his person,medical 2 expenses,loss of earnings and earning capacity,and general damages in sums according to .3 proof at the time of trial. 4 PRAYEA F4R RELIEF 5 WHEREFORE,Plaintiff MIGUEL FUEN' ES prays for judgment against all defendants, 7 and each of them,as follows: "' g 1. For general damages acoording to proof; 3 w a 9 2. For special damages according to proof; m °a 10 3. For punitive and exemplary damages according to proof and as requested in this < 11 complaint; U d 4. For all applicable interest as provided by law; 13 S 5. For costs of suit;and 14 a t 15 6. For such other and further relief as the Court deems just and proper. a 16 } a 0. 17 > DATED: November 2,2005 18 eWILLIAM,NARY,CHIOSSO, 19 C,A.VALLI&BREWER 14 20 u 21 By: Steven f.1prewer 22 AtforadLysifor Plaintiff 23 Miguel entes 24 25 26 27 - 28 a�. COMPLAINT FOR DAMAGES Fuentes v.Kinder Morgan v at. ... .. ................_...._._.....___... .... .... _....._..__.__....._...__....._...._.. f 11/2912005 03:28 916924 HABSASAMENDOLAa:'. .O PAGE 25126 1 Steven J.Brewer,Esqq,2MOSso, tate Bar No.94889) owILLTAM,IVARY, CAVALLI&BREWER 2 1999 Hwison Street,Suite 1600 Oakland,CA 94612-3528 3 Telephone: (510)832-5411 Facsimile: (510)832-1918 4 Robert A.Amendola,Esq.(State Bar No. 122688) 5 HABBAS,AMENDOLA&ASSOCIATES 1451 River Park Drive, Ste,298 6 Sacramento,CA 95815 . Telephone: (916)924-8787 7 Facsimile: (916)924-8440 LU 8 Attorney for Plaintiff 3 Miguel Fuentes W 9 to 10 - d a Q h 12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA u { 13 IN AND FOR THE COUNTY OF CONTRA COSTA l4 O z a - _ 15 MIGUEL Fum rr rS, Case No.: 16 - Plaintiff, CERTIFICATE OF NWRIT 5- Cd 17 18 vs. > CCP section 411.35 KINDER MORGAN ENERGY PARTNERS, � 19 L.P.KINDER MORGAN,INC.,SFPP,L.PJ (unified as KM);COMFORCE TECINICAL -+ SERVICES,INC.;EAST BAY MUNICIPAL 20 UTILITY DISTRICT;CAROLLO 3 ENGINEERS,P-C;CAMP,DRESSER& u 21 MCKEE;DOES 1-100,inclusive, 22 Defendants. 23 24 1,Steven J.Brewer,declare, 25 1 have reviewed the facts of the case and have consulted with and received an opinion fico 26 an architect,professional engineer or land surveyor who is licomed to practice and practices in thi 27 state or another state,or who teaches ai an accredited college or university and is licensed to r 28 practice in this state or another state,in the same discipline as the defendants,and who is 4- CERTOCATE OF WW Fuentes v.Kinder Morgan e1 a1. 11!29/2005 03:28 916924, HABBASAME3JDOL AS�_; .0 ` PAGE 26/26 1 reasonably knowledgeable in the relevant issues involved in the present action.I have concluded 2 on the basis of this review that there is reasonable and meritorious cause for the filing of this action. 4 1 declare under the penalty of perjury under the laws of the State of California that the 5 foregoing is true and correct and that this declaration was executed on November 2 2405,at b Oakland,California. 7 LU 8 OWILLC VALL&;BREWER HIQSSO, ed g as 10 11 By: Steven�. c > 12 Attomeys for 1 ' tiff a U a 13 73274 H 14 O 1 , v � 15 <1 16 �i 17 18 i 19 20 V 21 22 23 24 25 26 27 3 -2- CERTIFICATE 2CERTIFICATE Of MERIT i JA...wfw1.N �"JwaerIIIM/flf 0/RI ' 8 10!28/2006 15:19 FAX 925 253 5858 G J E & L X1002 OCT-@3--2085(101) 16:25 one legal P.005/021 +.v one .,Vvv ti J n s L � lAJ�1 LlS CDN1RA IA 0 0� 9BZ1 1 72FTAbeatx-- FAR CO ruseoe+.r �=, CSt3ft •i277"/2MXZTM =Cmr, GEA 9r1841S3 �, FST. s tic LAMS m Square Shite 230 oriuda:, Cal f= a 94563 Tmaicmxm (925) 2S3-5600 tAswo.rvpmam (925) 253-5859 . 6�rt.Avoa�s rat P if ;usm-ol:MUZ&COI mA Comm COONTY supz ICR C T 0 j� wPMTAoonnss 779 Cm= Scxeet (� n r;�earcf u etru�a�cooerLu-ti�sez, California'. 94S53 MAM4aSSEPZaa5 �Theft PUwaR-TcCHC1M A. XM, MMM C. IM and JACXM A. im laa;vi t Daly and as Ssceessozs is Yaterest to TAE C_ IM, rrruTi "" '�•�rniw� o Deceased 08 fP '-.=M=M=M, IlrG; .MC= NOR=MW 2MOMS, L.P.. EZS@ tlAT?t L tiT>ZC[S SCP; w2r. .L_i.; tom, raw=and mt=, .tate.; f o wee vro 9•n0 COMPL AM- Petschal lajury,Property Damage,Wrongful Death Q AMENDED(Rabe,,: Type(dwdeamwappw [�m=RVEHt= ®OTHER fspeelfy): work-Related PER LOCAL RULE 5 THIS Q rmpeftDm=gc p Wrongful Veath Tnda=t CASE IS ASS! TM TO I=Pa=nt bgwy Q other Damn=(VedW DEPT ( imbft Top(d ack am mt app)0: j Q AC7i0ir is a GeffTEo cvu.CASE r t�uunt9En Amo mt dman" dux notmxeed$10,000 xattooas$,$1G,0M but dons sat 8=mtF 528,000 ACTON tS AN INm CA3E(exaadx=.Me) JCCP No. 4433 AVMN S Rmmamw by this amended cwnptairrt Q from IltM c un ttftad DBY LZIftnost tlNiosibetl to i�d . - I -FFA)( I.PLA MBT(aameqp CS= A. 7M, EM77N C. IM and JACRIE A. IN Indivi.dua22y and as S=cesso= s0, Iatarest to M C. SM, Deceased OReges causes of action against CL-FH+1L�J+KT(namerKlaTIIR PSQRGAN, INC., at 0,1. 2.TAT-psbacft Utetrrdi►44o0octnnt sus tzht'�i6c.consists of the fopowing number of psgew z E 3"f�ctt prwrsled abvSre;Ls a eompeteAtachllt • a. Q except Ptattt�Gtarntk (T) a mpam4on*xwxw to do business in cambr to CZ) Q an Morpatated on*(dem): ao>tbka dm=dbe): (4 ©a DrumC7 an adun - (a)ED iarwlmin a 9wwdkTn urcolwervsteroftba wmfi,ora guartfan od Rt rn has been appnfitod (b)Gj Omer(tae� (� Q a$ta(bgealy}: b- []vxccVtpt*ff(*am* Ct) [73 a cmpuraon quaGbed to do buainess in CaRrom-. - W Q t�trdnootporaded en6tY(des�j; • Ca) EZI a pubrow0y desarmo): (4) C)na*wr L_J anWwt (a)Q forwham a pmrxftn or coseluoter of the estate ora guardan ad Morn hag been appoimod to)Q joer(ayed W, t� Q� k © Mxmdon aboulsddEmml pWvtU k"o am note velem eduft isshoum in Ccmph-*4—Atmrhment 3 �d psp 1 of l J�ufNtomoa� .o°' COMPLAINT—PeesottalhouryrPro perty S�dt� camatawrmoiaw,6.�s+s °CD4 �11Q9J99�863 4$PN rxurwge,wrougmi Death S' .1C ijtvo��±�� 10/28/2045 15:19 FAX 925 253 5858 G 3 E & L Q003 SHORTT[ a IM, et al. V. SIND81z MORGAN, INC., et al. r1SENUMeEt 4.[-I Plaintiff(name): is doing business Under the fcftUs name(specify): and has complied wilts the fictitious business name laws. 5. Each defendant named above is a natural person a Q,except defendant(name): c. except defendant(name): (1) Q a business organiza5on,form unknown (1) a business organization,form unknown (2) Q a corporatan M Q a corporation (3) Q an unincorporated entlty(descnbe): (3)Q an unincorporated entity(describe): (4) []a public entity(describe): (4) a public entity(desoibe): (5) Q other(specify). (5) Q other(specify): b. Q except defendant(name): d. Q except defendant(name): (1) Q a business organtzation.form unknown (1) a business organization,form unknown (2) a corporation (2) a corporation (3) an unincorporated entity(describe); (8)Q an unincorporated entity(describe): (4) Q a public entity(descAO .(4) a public entity(describe): (5) Q other(ape*): ($) Q other(specify)_ Q Information about additional defendants who are not natural persons Is contained in Complaint--Attachment 5. 6. The true names and capcities of defendants sued as Does are unknown to plaintiff. i.Q Defendards who are jo'e,ed pursuant to Code of Civil Procedure section 382 are(names): B. This court is the proper court because a. Q at least one defendant now resides In Its jurisdictional area. b. [3 the prhdpaf place of business of a defendant corporation or unincorporated association Is in its jurisdldlonal area. m ®injury to person or damage to personal property occurred in cgs jurisdictional area. d. D other(sped" 9.[x]Plaintiff is required to comply with a claims statute,and axQ plaintiff has complied with applicable claims statutes.or b. (I plaitttlff Is excused from eomp)y'mg because(spedft COMPLAINT--Pemonii Injury,Property Paga I of 3 Damage,Wrongful Death 10/28/2005 15:19 FAX 925 253 5858 G J E & L 121004 MC-026 sHORTTM.E.IM v. KUMM MORGAN. INC. et al. CASENUMBM ATTACHMENT(Number)._Jj_ Page Zd_ of 2 (This Affachment may be used with anyJudicki Council form.) (Add pages as required) 2 The defendants herein named consist of entities described as follows: a. Defendant FAST BAY MUNICIPAL UTILITY DISTRICT (EBMUD) is a publicly owned utility 4 maintaining its headquarters, offices in the City of Oakland, County of Alameda, State of California. At all times herein mentioned EMUD planned, designed, owned, supervised, 5 controlled and constructed a public works construction project known as the walnut Creek-san Ramon Valley Improvement Project (Project) which involved the installation of a water 6 pipeline (EBMaD Pipeline)- The route of the F3KUD Pipeline was generally to be parallel to, and east of, and above, a high pressure fuel pipeline system located within the City of 7 Walnut Creek; and elsewhere, referred to herein as the Ninder Pipeline. b. Defendant KINDER MORGAN ENERGY PARTNERS, L.P. is, and at all times herein mentioned was, a limited partnership organized and existing under the laws of the State of Delaware, 9 and qualified to do business in the State of California. 10 a. Defendant SPPP, L.P. is, and at all time hezein mentioned was, a limited partnership organized and existing under the laws of the State of Delaware, and qualified to do business 11 in the State of California. 12 d. Defendant KMER MORGAN, INC. is, and at all times hbrein mentioned was, a corporation organized and existing under the laws of the State of Delaware, qualified to do 13 business in the State of California. RIDER MORGAN ZMERSY PARTNERS, L.P., SFPP, L.P., and 14 BINDER MORGAN, INC. are hereafter collectively referred to as the RK defendants. e. Defendant CAMP, DRESSER and Hcmm, INC.. (CDM} is, and at all times herein mentioned 15 was, a corporation organized and existing under the laws of the state of Massachusetts, and qualified to do business in the-State of California. 16 f. Defendant CAROLLO ENGINEERS (CAIMLLO) is, and at all times herein mentioned was, a 17 professional corporation organized and existing under the laws of the State of Arizona, and qualified to do business in the State of California. 16 19 g.' Defendant COMORCR TECENICAL SERVICES, INC. (CONFORM is, and at all times herein mentioned was, a corporation organized and,existing under the laws of the State of Delaware, 20 and qualified to do #usiness in the state of California. 21 h- The true names or capacities, whether individual, corporate, associate or otherwise Of Defendant DOES 1-100, inclusive, are unknown to Plaintiffs who therefore sue said 22 Defendants by such fictitious names. Plaintiffs are Informed and believe and thereon allege that tach of the Defendants designated herein as D= in negligently and legally responsible 23 in SOMO manner for the --V=tR and happenings herein referred to, and negligently caused injuries and damages thereby proximately to Plaintiffs an herein alleged. 24 25 26 27 (Yffie fieni ftf this Aftdwmt concerns 1s made dnderpemWotperjury,all statements in this Attachment are made under penany ofpa*y.) rue counts ao u6° ATTACHMENT CaL Mies of CMK rik M to Judicle!CouncN Form 10/28/2005 15:20 FAX 925 253 5858 G J E & L CJ005 swftTTME:IM, et al. v. RDWM MORGAN, INC„ et al. cAsewu►, M 10.The following causes of action are attached and the statements above apply to each(each complaint must have one or more causes of action attached): a. Motor Vehicle b.O General Negligence c Q Intentional Tort d.Q Products UabaiV e.Q Premises Liability f Qx Otber(speafy). Strict Liability; 14122ful Misconduct 11_Plafritiffhas suffered a.M wage loss b.Cl loss of use of property c�Q hospital and medical expenses d.F-1 general damage e.GO property damage f. [] loss of earning capaddy g.® Outer damage(apeoW. Bork economic sad —cc-54c damages, including funeral and burial expenses, ase c].aioed for wrongful death by plaintiffs individually: and coupensation for de.'troyed and damaged Wrsomal property, and punitire damages are Claimed F"'- to Pu"" injury leu=vival) Cl"Me presented by plaintiffs as succesaors in Interest to Decedeat. Pre-judgment Interest at 10t per annum (putsuast to Civil Code Section 32911 1a Sought ns ANLU abls. 12® The damages claimed for wrongful death and the relationships of plaintiff to the deceased are a C] fisted In Complaint--Attachment 12 b. xQ as follows: The relationships of plaintiffs to Decedent are: Chong A. Im, spouse; Nevin C. Im, son; and Jackie A. Im, daughter; each seeks economic and scion-economic damages, to the extent provided by law. 13.The relief sought in this complaint is wilhin the jurisdiction of Ih+s court. 14.PLARMFF PRAYS for Judgment for costs of sA for such relief as is fair,just,and equitable;and for a.(1) ® compensatory damages (2) d prinifte damages b. The,. check(1)in cases forpersonal rVury or wrongful death): (1) Q according to proof (2) Q m the amount of.s 15. 0 The paragraphs of this complaint alleged on information and belief are as follows(specify paragraph numbers): Date: September 29, 2005. JIM LARm (rYM OR P'RW NAM OF 1_5A'1FF 0RATTORN1M 7 sazr(')pu°..wr r•zoo� COMPLAINT--Personal Injury,Property Damage,Wrongful death 10/28/2005 15:20 FAX 925 259 5858 G J E & L 16006 SHORT Tn l-F- CAWMJMBM TM V. KINDER MORGAN, INC., et al. FIRST CAUSE OF ACTION-General Negligence Pace 4 ATTACHMENT TO MComplaint EDGmss-Complaint (Use a separate cause ofacgon form for each cause of adkn.) GN-1. Plaintiff(name): CHONG A_ IM, MIN C. IM and JACKIS A. IM, Individually alleges that defendant(hamar KINDER MORGAN, INC,t KINDER MORGAN ENERGY PARTNERS, L.L.P.; and SFPP, L.P. (hereafter collectively referred to as The KM Defendants) . M Does I to 1 ack was the legal(proximate)cause of damages to pWoUft. By the following acts or omissions to act, defendant negfigendy caused the damage to pbtntiff on(date): November 9, 2004 at(pface): In and adjacent to a trench in a residential neighborhood located in the City of Walnut Creek, county of contra costa, state of California. (descilpVon of reasons forrwbrTdA: ( see Attacbment entitled "First Cause of Action" • i (. FomAwoM by me CAUSE OF ACTION-General Negligence SCIZie CCP 425.12 rare osa� CAL 10/28/2005 15:20 FAX 925 253 5858 G J E & L 0 007 1 MST CAUgE _OF ACTION 2 (Plaintiffs,IndiwidwHy,as against the KM Defendants and DOES I to 100) 3 Description of.Reasons for Liability: 4 1. At all times herein mentioned,various entities,including the defendants herein and 5 others,were engaged in construction of a water supply line(hereafter the"BBMUD 6 Pipeline"). 7 Z. At all times herein mentioned,decedent Tae C.Im was an employee of Mountain 8 Cascade,Ina(MCI),and was engaged in activities on MCI's behalf that involved 9 excavation for the construction of the EBMUD Pipeline. 10 3. On November 9,2004,an excavator being used in the EBMUD Pipeline construction 11 activities punctured a high pressure petroleum line owned by the KM Defendants, 12 (hereafter,the"Kinder Pipeline");this ceased petroleum to be released into rhepipe 13 trench in and around which various persons,including decedent,were working. 14 4. The released petroleum was ignited by welding activities of workers for Matamoros 15 Pipelines,Inc.(Matamoros),a welding subcontractor,which resulted in an explosion 16 and fine,killing decedent,among others. 17 5. At all times herein mentioned,the RM Defendants,and DOES I to 100,and each of 18 than,breached their duty of due care to decedent,and were negligent as owners, 19 operators,and entities having retained control of the Kinder pipeline by,among other 20 things: 21 Improperly hiring,training,retaining,and supervising their employees,agents, 22 representatives,and independent contraetars,including(among others)a 23 contractor known as Comforoe Technical Services,Inc.(CONTORCE),for 24 the performance of work on the Kinder Pipeline and other work in relation to 25 the Project,including but not limited to work involving the determination of 26 the location of the Kinder Pipeline,data which needed to be ascertained before 27 workers could safely excavate and work in the area of the EBMUD Pipeline 28 and Kinder Pipeline; Complaint hn Y.render YOM Inc.,et A 10./28/2005 15:20 FAX 925 253 5858 G J E & L 0 008 1. ♦ Improperly failing to create,obtain,and/or analyze the proper utility maps, 2 plans and drawings showing the accurate location of the Kinder Pipeline,or 3 otherwise failing to properly ascertain the actual location of the Kinder 4 Pipeline with reference to the excavation path,prior to allowing workers to 5 excavate and work in the area of the EBMUD Pipeline and Kinder pipeline; 6 • improperly failing to secure accurate information concerning the location of 7 the Kinder Pipeline in the area where the fire and explosion occurred so that g proper marking of the Kinder Pipeline could be made at or near its intersection 9 with the EBMUD Pipeline. 10 ♦ Improperly failing to obtain the proper permits and other authority to allow for 11 work to be completed in the vicinity of the Kinder pipeline and EBMUD 12 Pipeline; 13 • Improperly failing to Joe=and field mark the location of the Kinder Pipeline 14 pxiar to the excavation by workers in the area of the EBMUD Pipeline and 15 :Kinder Pipeline,in violation of,among other things,Government Code 16 Section 4216.3; 17 • Improperly failing to relocate the Kinder Pipeline to a location away from the i8 immediate vicinity of the Project and the EBMUD Pipeline,prior to permitting 19 workers on the Project to conduct their duties; 20 • Improperly failing to address the expressed concems of entities working on the 21 Project,or who had worked on the Project('including,among others,Modem 22 Continental Construction Co-,BBMUD,and DOES 1 to 100,and each of 23 them),regarding the need for properly ascertaining the location of the Kinder 24 Pipeline as related to the location of the EBMUD Pipeline;and failing to 25 properly and appropriately inform and communicate to workers on the Project 26 appropriate knowledge and warnings concerning the location of the Kinder 27 Pipeline,and the dangers related thereto which they might encounter; 28 ♦ Improperly failing to provide necessary safeguards to EBMUD Pipeline Compkbe in v.MaiderMorgmy Inc.,eteL 10/28/2005 15:20 FAX 925 253 5858 G J E & L 16009 f� 1 waakers so as to prevent breach of the petroleum line daring the progress of 2 the work; 3 ♦ Improperly entezing into a mutual agreement with MCI,EBMUD and DABS 1 4 to 100,and each of them,allowing the use of power-operated or power-driven 5 excavating or boring equipment within the vicinity of the Kinder Pipeline in 6 connection with the Project,without proper safeguards; 7 ♦ Improperly failing to inspect,or to do so as frequently as necessary,the Kinde 8 Pipeline,and the proximity of workers thereto,during work on the Project 9 under circumstances where,through contact with all involved in the Project, 10 the RM defendants knew or should have known that the Kinder Pipeline could 11 be breached or damaged by excavation work for the Project; 12 Improperly failing,through employee M',tke Briggs who was on site both the f 13 day before this incident and the day it occurred,to inform MCI,and others 14 excavating in the immediate area,of the known deviation in the Kinsler 15 Pipeline,which brought it in close proximity to the excavation path of the 16 BBMUD Pipeline,and therefore put workers in immediate danger, 17 Improperly failing to do all of the above,despite having been informed by 18 entities which previously had performed work at the Project site that workers 19 were having difficulty ascertaining the location of the Kinder Pipeline,so that 20 it could be avoided during their excavation;and 21 ♦ Improperly tailing to do all of the above,despite knowledge that this same 22 Kinder Pipeline had been damaged previously during excavation work,at two 23 diff=at locations thereof. 24 25 WAEREFOM Plaintiffs,individually,seek damages for decedent's wrongful death,as 26 described on page 3 of the Judicial Council form portion of this Complaint,at paragraph 12. 27 28 t� CompXawrt lot P.Kinder Morgam Inas,etaL 10/28/2005 15:20 FAX 925 253 5858 G J E & t X1010 1 SECOND CAUSE OF ACTION— (Plaintiffs, CTION(Plaintiffs,Individually,as against 2 the EM Defendauts and DOES 1-100) 3 Strict Liability for Ultrahazardous Activities 4 6. Plaintiffs hereby incorporate by reference the allegations set forth in the pre-printed S 6 portion of this Complaint,and the Fust Cause of Action thereof: 7 7. At all times herein mentioned,the KM defendants,and DOES 1 to 100,were engaged 8 in activities including owning,operating,locating,field marking,and monitoring 9 excavation near the Kinder Pipeline located in Walnut Creek,California,as herein 10 described. 11 12 8. Such activities create the existence of a highh degree of risk of harm to persons and 13 property,creating the likelihood that harm resulting from such activities would be 14 great;and such activities have dangerous attributes to residential environments which 15 outweigh their value to such communities. 16 9. Such activities were substantial factors in causing harm,particularly the death of 17 18 decedent,as herein described. 19 10.Such harm,including the death of decedent,was of the kind that would be anticipated 20 as a result of the risk created by owning,operating,locating,field marling,and 21 monitoring petroleum products pipelines Including the Kinder Pipeline,and 22 transporting fuels through a residential neighborhood and community,thereby 23 24 creating such a serious risk of danger that it is justifiable to impose upon the KM 25 Defendants liability without fault. 26 VPFIhRF.]:ORA Plaintiffs,individually,seek damages for decedent's wrongful death,as 27 described on page 3 of the Judicial Council form portion of this Complaint,at paragraph 12, 28 Complmnt bn K Epodes Morgan,rac.,er aL 10/28/2005 15:20 FAX 925 253 5858 G J E & L Roil SHORT TITLE c�sE nur.reEx IM V. RZNDER MORGAN, INC., et al. THIRD CAUSE OF ACTION-General Negligence Pags�_ cnane�n ATTACHMENT TO ®Complaht MCross-Complaint (Use a separate cause ofadlon form for each cause ofadion.) GN-'l. Plaindff(name): CHONG A. IM, KEVIN C. IM and JACKIE A. IM, Individually alleges that defendant(name): COMFORCE and ®Does I to i nn was the legal(pro)imate)cause of damages to plahititf. By the following acts or omisslons to act defendant negggentfy caused the damage to plaintiff on(date): November 9, 2004 at(ptace): in and adjacent to a trench in a residential'neighborhood located in the City of walnut Creek, County of Contra Costa, state'of California. (description of reasons for►lablliy): f� see Attachment entitled "Third Cause of Action" ruMAEowwea by Mo OPOO- an CAUSE OF ACTION-General Negligence S0&cCP M12 sn+ es e asi+m WOW Fam 10/28/2005 15:20 FAX 925 259 5858 G J E & L Q 012 THIRD CAUSE OF ACTION 1 (Plaintiffs Individuallyj as against NIFORCE) 2 Description of Reasons for Liability: 3 l=ust incorporating the pre-printed portions of this Compliant and Paragraphs 1 through 4 4 of the First Cause of Action thereof,Plaintiffs,suing individually,further allege: 5 6 11. At all times herein mentioned,in the performance of certain duties at the above- 7 described work site,defendants COMFORCE,and DORS 1 to 100,had a duty of due 8 care with regard to ownership,supervision,control,surveying,and operating the 9 Kinder Pipeline in a safe and proper manner to insure the safety of the public and 10 those working on the project,including decedent,among others,and to follow 11 applicable roles,regulations,and statutes iri connection therewith. 12 12. At all times herein mentioned,COMFORCF.,and DOES 1 to 100,and each of them, 13 were negligent and did breach their duty of due care by,among other things: f 14 Negligently and carelessly hiring,training,retraining,and supervising their 15 employees,agents,representatives,and independent contractors in the 16 performance of the work on the Kinder Pipeline in relation to the Project, 17 including but not limited to failing to determine the location of the Kinder 1s Pipeline,before allowing workers to excavate and work in the area of the 19 EBMUD Pipeline and Kinder Pipeline; 20 ♦ Negligently and carelessly failing to create,obtain and/or analyze the proper 21 utility maps,plans and drawings showing the accurate location of the Kinder 22 Pipeline,or otherwise to properly ascertain its location,prior to allowing 23 workaers to excavate and work in the area of the EBM[JD Pipeline and Kinder 24 Pipeline, 25 • Negligently and carelessly failing to obtain the proper permits and other 26 authority to allow for work to be completed in the vicinity of the Kinder 27 Pipeline and EBMUD Pipeline; 28 bn v.Kinder Morgmy I=,et oL l 10/28/2005 15:21 FAX 825 253 5858 G J E & L 0 013 k� 1 • Negligently and carelessly failing to locate and field marls the location of the 2 Kinder Pipeline prior to the excavation by workers in violation of,among 3 other things,Government Code Section 4216.3; 4 • Negligently and carelessly failing to inspect,or to do so as frequently as 5 necessary,the Kinder Pipeline during work on the Project where,through 6 contact with all involved in the Project,COWORCE and DOES 1 to 100, 7 and each of them,knew or should have known,that the Kinder Pipeline could 8 be damaged by excavation work for the Project; 9 + Negligently and carelessly failing to properly use locating equipment in order 10 to locate accurately and mark the Kinder Pipeline; 11 + Negligently and carelessly failing to adequately or accurately mark the 12 location of the Kinder Pipeline in a way that identified the location of that 13 portion of it which intersected with the proposed excavation path for the 14 EBMUD pipeline;and 15 ♦ Negligently and carelessly failing to secure from the KM Defendants,and 16 their employees,accurate information concerning the location of the Kinder 17 Pipeline in the area where the fire and explosion occurred so that proper 18 marking of the Kinder Pipeline could be made at or near its intersection with 19 the EBMUD Pipeline. 20 21 WHERF1rORE,Plaintiffs,individually,seek damages for decedent's wrongful death,as 22 described on page 3 of the Judicial Council form portion of this Complaint,at paragraph 12. 23 24 25 26 27 28 Complaurt 11 ht y MaderMoyRan,laa,elaL 10/28/2005 15.:21 FAX 925 259 5858 G J E & L 014 SHOKT TITLE: rASE rruNe6+ IM v. KINDER MORGAN, INC-, et al. FOURTH CAUSE OF ACTION-General Negligence Page 12 a.rpem ATTACHMENT TO M Complaint OCross-Complaint (Use a separate cause of action form for each cause of*06n) GN-1. Pleadiif(name): CHONG A. IM, KEVIN C. IM and JACKIE A. IM, Individually alleges that defendant(name): EAST BAY Municipal Utility District (EBMUD) ®Does 1- to 1 nn was the legal(pro)dmate)cause of damages to plaintiff. By the following acts or omissions to ack defendant negligently caused the damage to pleinllff on(date)- November 9, 2004 at(p/ace): In and adjacent to a trench in a residential neighborhood located in the City of Walnut Creek, County of Contra Costa, state of California. (descdptlon ofressons forriabdlty): see.Attachment entitled "Fourth Cause of Action" f,* FWM Paprwmaf o* CAUSE OF ACTION General Negligence5CM cop q25.12 �oes9az�A) Op6aW Fam 10/28/2005 15.:21 FAX 825 253 5858 G J E & L [�jQI5 l� 1 FOUR CAUSE 019 ACTION (Plaintiffs,Individually,as against EBMUD) 2 General Negligence/Dangerous Condition of Public Property 3 Description of Reasons for Liability: 4 First incorporating the proTrinted portions ofthis Complaint and Paragraphs 1 through 4 5 of the First Cause of Action there4 Plaintiffs,suing individually,further allege: 6 7 13. As heretofore alleged,at all times herein mentioned EBMUD was engaged in the 8 business of planning,designing,owning,supervising,controlling and constructing a 9 water supply lime,called herein the EBMUD Pipeline,thereby creating the need for IO the construction Project herein describe& 11 14. At all times herein mentioned,defendants EBMUD and DOES 1 to 100,and each of 12 them owed a duty of due care to others,including decedent,with regard to the 13 planning,design,ownership,supervision,control,surveying,and construction of the 14 water line and the Project in a safe manner,so as to insure the safety of the public IS and those working on the Project,including decedent. 16 15. At all times herein mentioned,EBMUD and DOES 1 to 100,and each of them, 17 breached said duty of due care by,among other things: 18 • Negligently and carelessly hiring numerous contractors,and each of them,to 19 perform the work on the Project given,among other things,their poor safety 20 records; 21 • Negligently and carelessly supervising and exercising retained control over 22 the various entities performing work at and during the project; 23 • Negligently and carelessly failing to correctly determine the location of the 24 Kinder Pipeline before allowing wofl=for the various entities to excavate in 25 the area of the EBMUD pipeline and the Kinder pipeline. EBMUD so acted 26 or failed to act even though it was aware of the incursion of the Kinder 27 Pipeline into the project,as evidenced by various maps which had been 28 reviewed by EBMLJD,along with various data collected in the field which Comptafi>< 1 Iia v.Hinder Morganti Inc,a aL 10/28/2005 15:21 FAX 925 253 5858 G J E & L IM 016 1 likewise revealed said incursion,and despite having been informed by 2 previous contractors on the Project,who had extreme difficulty locating the 3 Kinder Pipeline in this area,of the dangers of this incursion; 4 • Negligently,carelessly and recklessly pressuring and requiring MCI to 5 complete the Project without taking adequate steps to insure the safety of the 6 public and those working on the Project,including decedent. 7 + Negligently and carelessly failing to create,obtain and/or analyze the proper 8 design maps and field marlrng data,prior to allowing MCI to excavate near 9 the EBMUD Pipeline and.Kinder Pipeline; 10 4, Negligently and carelessly failing to obtain the proper permits and other 11 authority to allow for work to be completed by MCI and others,in the vicinity 12 of the Kinder Pipeline and EBMUD Pipeline; 13 ♦ Creating a dangerous condition of public property by performing work,or �f 14 allowing work to be performed on its behalf,on the Project in the immediate 15 vicinity of the Kinder Pipeline,asopposed to either insisting upon its 16 relocation or performing the work in another location in the City of Walnut 17 Creek,County of Contra Costa where the Kinder Pipeline was not located; 18 • Having both actual and constructive notice,in sufficient time to cure the 19 problem but taking no steps to do so,of a dangerous condition of public 20 property arising from allowing work to be performed on the Project in the 21 immediate vicinity of the Kinder Pipeline; 22 ♦ Negligently and carelessly failing to require various entities to relocate the 23 Kinder Pipeline to a location away from the immediate vicinity of the 24 EBMUD Pipeline and Project; 25 ♦ Negligently and carelessly failing to notify,and communicate to,MCI and 26 others(including those engineering consultants responsible for designing 27 plans)of concerns by other entities working on the Project,and those who had 28 Complabd 1 Im v JmderNarganr lncs,d ad 10/28/2005 15:21 FAX 825 253 5858 G J E & L 0 017 1 workers on the project,regarding the location of the Kinder Pipeline as related 2 to proximity to the MMM Pipeline and Project; 3 • Negligently and carelessly failing to halt work unless and until it could assure 4 all work around the Kinder Pipeline and EMBUD Pipeline was being 5 conducted with adequate safeguards and through safe and acceptable means; 6 ♦ Negligently and carelessly failing to conduct,or requiring entities working on 7 the Project to conduct,daily inspections by a competent individual prior to the 8 start of work,.and as needed throughout the shift so as to reasonably ascertain 9 information that could result in funding a dangerous condition,such as that 10 which resulted in the fire and explosion causing death of decedent; 11 • Negligently and carelessly failing to remove,or requiring entities working on 12 the Project to remove,individuals working on the Project,including decedent, 13 from the dangerous area of the Kinder Pipeline until necessary precautions 14 had been taken to ensure the safety of Chase individuals, 15 ♦ Knowing that a prior subcontractor had been extremely concerned that the 16 planned route ofpiping installation for the water upgrade was dangerously 17 close to a known high pressure fuel line,causing risks of explosion to workers 18 (including decedent)using equipment to install water pipe,yet still failing to 19 notify MCI employees and others of ha=*and dangers related thereto,all o 20 which were well known by BBMUD employees,and failing to correct such 21 hazards and dangers before.petmitting persons including decedent to work; 22 and 23 • Focusing instead on its supposed need for rapid completion of the 24 underground pipe installation project,failing to take the necessary precautions 25 to own,manage,maintain and control the Project and the property(including 26 public utility easements)throughout the area of this explosion so as to permit 27 workers thereupon to engage safely in their work activities,thereby acting 28 t Cowptaint 1}x u Mader Motivn,Luc.,et ax 1 10/28/2095 15:21 FAX 925 259 5858 G J E & L 0 018 1 negligently and creating a dangerous condition of public property which if 2 controlled. 3 4 VIFMU FORE,Plaintiffs,individually,seek damages for decedent's wrongful death,as 5 descnbed on page 3 of the Judicial Council form portion of this Complaint,at paragraph 11 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint i An v%'oder Morgan,Ina,et aL 10/28/20.05 15:21 FAX 925 253 5858 G J E & L f�019 SHORTTrrt.E: CME MMB IM v. KINDER MORGAN, INC., et al. FIFTH CAUSE OF ACTION-General Negligence Page 17 ATTACHMENT TO ®Complaint []Cross-Compiamt (Ike a separefe cause of action form for each cause of action.) GN-1. Plahtff(name): CHONG A. IM,KEVIN C. IM and JACKIE A. IM, Individually alleges Ihat defendant(name): CAROLLO ENGINEERS (CAROLLO) and CAMP, DRESSER & MCKHR, INC. (hereafter CDM) N1 Does Ito 1 nn was the legal(proximate)rause of damages to plalrAM By the following acts or omissions to act. defendant negriget*caused the damage to plalnfiff on(date), November 9, 2004 at(pface): In and adjacent to a trench in a residential neighborhood located in the City of Walnut Creek, County of contra coats, state of California. (description orressons tbrnebA%h'): see Attachment entitled "Fifth Cause of Action!) FnmAPPwdW Wft AldkW oa,A of a.ATnia CAUSE OF ACTION-General Negligence CCP 725.12 Fbda NZIPt OpdarW Fbrm 10/28/2005 15:21 PAX 925 259 5858 G J E & L 020 FIFTH CAUSE OF ACM 1 (Plaintiffs,IndividuaUy,as against CA H 0 and CDAO 2 Description of Remus for Liability: 3 First incorporating the pre-printed portions of this Complaint and Paragraphs 1 through 4 4 of the First Cause ofAction thereof;Plaintiffs,suing individually,further allege: 5 6 17. At all times herein mentioned,defendants CAROLLO,CDM and AGES 1 to 100, 7 and each of them,were engaged in the business of planning and designing the 8 construction Project herein described,and in the course thereof;provided drawings 9 and plans to EBMM,and others. Because of the close location of the Kinder 10 Pipeline to the EBMUD Pipeline and the work to be done with regard to the project, 11 CAROLLO,CDM and DOES 1 to 100,had a duty of due care to,among other 12 things,plan and design the Project in a safe manner to insure the safety of the public 13 and those worldng on the Project,including decedent,and to follow applicable rules, 14 regulations,and statutes. 15 18. At all tunes herein mentioned,CAROLLO,CDM and DOES 1 to 100,and each of 16 them,breached that ditty of due care and were negligent by,among other things: 17 ♦ Improperly preparing and designing the plans,drawings,and maps for the 18 Project under circumstances where they were each aware of the incursion of 19 the Kinder Pipeline into the Project's path,but still failed to conduct a 20 thorough survey of the conditions of the site so as to incorporate adequate 21 safeguards for Project workerg into their plans to deal with.predictable 22 hazards; 23 ♦ Improperly failing to evaluate the meed for re-design and modifications of the 24 Project at the time they,and each of them,became aware of and discovered 25 the proximity of the Kinder Pipeline to the proposed EBMUD pipeline,and 26 the incursion of the Kinder Pipeline into the Project; 27 ♦ Improperly interpreting available field data(including"pot-holing"and 28 related data)and improperly failing to request additional or missing data,after Complgfnt l Inc v MmderMargan,Inc.,et aL 10/28/20,05 15:21 FAX 925 259 5858 G J E & L 0021 f� 1 reviewing the field data as to the proximity of the Kinder Pipeline to the 2 proposed EBMUD Pipeline in the vicinity of the explosion site,putting 3 workers at risk thereby of the fire and explosion which in fact occurred; 4 + Despite knowledge of the extreme hazards posed by the incursion of the 5 Kinder Pipeline into the path of the proposed EBMUD Pipeline,improperly 6 failing to prepare drawings,maps,and plans which effectively warned and 7 comaaunicated to all persons reasonably relying thereon(including those 8 responsible for excavation in the area)the specific location of those areas 9 where the Kinder Pipeline came into close proximity to the path of the 10 EBMUD Pipeline; 11 • With respect to CDK and DOES I to 100,and each of there,negligently and 12 carelessly entering into a subcontract with CAROLLO regarding the portion 13 of the.Project at issue in this lawsuit,under circumstances where it knew or 14 should have known that CAROLLO was a contractor of insufficient capability 15 to safely conduct this work;and 16 • With respect to CDM and DOES 1 to 100,and each of them,negligently and 17 carelessly supervising and exercising retained control over CAROLLO • 18 regarding its work on the portion of the Project at issue in this lawsuit. 19 20 ME Est EFORE,Plaintiffs,individually,seek damages for decedent's wrongful death,as 21 described on page 3 of the Judicial Council form portion ofthis Complaint,at paragraph 12. 22 23 24 25 26 27 28 Complaint 1 Int u Xinder Morgan,Ina,et aE 10/28/2.0105 15:22 FAX 925 253 5858 G J E & L 0 022 1 pXTH CAUSE OF ACTION (Plaintiffs,as Successors in Interest, 2 as against the KM Defendants) 3 1VPmnduet 4 5 First incorporating the pre-printed portions of this Complaint and Paragraphs 1 through 4 6 of the Fust Cam-of Action thereof,Plaintiffs,suing individually,further allege: 7 19. After the fire and explosion herein described and alleged,and prior to his death, 8 decedent Tae C.Im did sustain damage and loss of certain of his personal property, 9 including clothing and personal effects_ 10 20. At all times herein mentioned,the KMDefendants,and DOES 1 to 100,and each of 11 them,as owners,operators,and entities having retained control of the petroleum 12 pipeline described herein as the Kinder Pipeline,engaged in willful misconduct whir caused the death of decedent by,among other things: 13 ♦ 14 Improperly hiring,training;retaining,and supervising their employees, 15 agents,representatives,and independent contractors,including(among others 16 COMFORCE,for the performance of work on the Kinder Pipeline and work 17 in relation to the Project,including but not limited to work involving the 18 determination of the location of the Kinder pipeline,data which needed to be 19 ascertained before workers could safely to excavate and work in the area of 20 the EBMUD Pipeline and Kinder pipeline,and so doing with the knowledge 21 that any failure on the part of those persons to properly and accurately mark the specific area where the Kinder Pipeline intersectcd with the area of 22 excavation for the EBMUD Pipeline would likely and probably result in death 23 or serious injury to those persons working in that area; 24 ♦ Knowingly providing maps,drawings,and plans to entities performing work 26 on the Project which did not accurately depict the location of the Kinder 27 Pipeline, 28 ♦ Knowingly and deliberately failing to create,obtain,and/or analyze the proper CvmplaW 2 bit v.,lrwder Morgan,Inc,et aL 10/28/ZQ05 15:22 FAX 925 253 5858 G J E & L 023 SR� 1 Utility maps,plans and drawings accurately showing the location of the Kindw 2 Pipeline; 3 ♦ Knowingly failing to take the necessary steps and precautions to make sure 4 that those persons excavating in the area where the Kinder Pipeline intersected 5 with theEBMUD Pipeline path were aware of that incursion or intersection 6 before they excavated in that area; 7 i Improperly failing to obtain the proper permits and other authority to allow for 9 work to be completed in the vicinity of the Kinder Pipeline and LBMUD 9 Pipeline; 10 ♦ Improperly failing to locate and field mark:the location of the Kinder Pipeline 11 prior to the excavation by workers in the area of the EBM[7D Pipeline and 12 Kinder Pipeline,in violation of,among other things,Government Code 13 Section 4216.3,and so acting while knowing that the failure to do so in that 14 area of intersection and incursion would likely and probably result in death or 15 serious injury to persons working in that area of the excavation; 16 ♦ Intentionally and falsely stating to those persons excavating in the area where 17 the Kinder Pipeline intersected with the EBMUD Pipeline path that it had 18 properly and correctly placed field markings so as to represent the location of 19 the Kinder Pipeline;. 20 ♦ Intentionally and falsely stating to those persons excavating in the arca where 21 the Kinder Pipeline intersected with the EBMUD Pipeline path that the field 22 markings accurately represented the location of the Kinder Pipeline,that MCI 23 and DOES 1-100,and each of them,need only follow the field marking 24 devices to avoid hitting the Kinder Pipeline during excavation,and that 25 additional locating and monitoring by MCI and DOES 1-100,and each of 26 them,was not necessary; 27 ♦ Maintaining a company wide practice,through a corporate policy of 28 recklessness and deliberate inaction,of consistently failing to provide accurate Complaint 2 In v leder Morgan,Ina,et a1 10/28/2.005 15:22 PAX 925 253 5858 G J E & L 0 024 1 information regarding the location of the Kinder Pipeline to entities providing 2 workers who engaged in excavation in close proximity to it,despite knowing 3 that such practices had previously resulted in damage to the Kinder Pipeline 4 from excavation work done new to it; 5 + Improperly failing to relocate the Kinder Pipeline to a location away from the 6 immediate vicinity of the Project and the EBMUD Pipeline prior to permitting 7 workers on the Project to conduct their duties; 8 ♦ Improperly failing to address the concerns of entities working on the Project, 9 or who had worked on the project(including among others Modem 10 Continental Construction Co.,EBMUD,and DOES 1 to 100,and each of 11 them),regarding properly ascertaining the location of the Kinder pipeline,as 12 related to the location of the EBMUD Pipeline;and failing to property and 13 appropriately inform and communicate to workers on the Project appropriate 14 knowledge and warnings concerning the location of the Kinder Pipeline,and IS the dangers related thereto which they might encounter, 16 ♦ Improperly failing to provide necessary safeguards to those workers so as to 17 prevent breach of the petroleum line during the progress of the work; 18 ♦ Improperly entering into a mutual agreement with MCI,BBMUD and DOES 1 19 to 100,and each of them,allowing the use of power-operated or power-driven 20 excavating or boring equipment within the vicinity of the Kinder Pipeline in 21 connection with the Project,without proper safeguards;and 22 ♦ Improperly failing to inspect,or to do so as frequently as necessary,the Kinde 23 Pipeline,and the proximity of workers thereto,during work on the Project 24 where,through contact with all involved in the Project,the KM defendants 25 knew or should have known that the Kinder Pipeline could be breached or 26 damaged by excavation work for the Project; 27 ♦ Improperly failing to do all of the above,despite having been informed by 28 entities which previously had performed work at the Project sine that workers CornpYa�t bn Y.Kinder Morgan,Inc,d at 10/28/2005 15:22 FAX 925 253 5858 G J E & L 0025 I were having difficulty ascertaining the location of the Kinder Pipeline,so that 2 it could be avoided during their excavation;and 3 ♦ improperly failing to do all of the above,despite knowledge that this same 4 Kinder Pipeline had been damaged previously during excavation work,at a 5 different location thereof. 6 21.Although the KM Defendants were well aware that applicable law required that the 7 location of underground installations such as petroleum pipelines that reasonably ma 8 be expected to be encountered during excavation work shall be determined prior to 9 opening an excavation,they nonetheless willfully failed to determine by a marking 10 method the accurate location of the Finder Pipeline,in the area of its intersection .11 with the excavation path of the EBMtID Pipeline,prior to the opening of an. 12 excavation to install that water line.The KM Defendants were aware that workers 13 would have to operate excavation equipment in.the same area where the Kinder 14 Pipeline intersected the path of the EBNUD Pipeline,yet they willfully failed to 15 ensure that the Kinder Pipeline was clearly marked,which would have resulted either 16 in its relocation,or in other appropriate measures to safeguard workers.As a result of 17 the willful action or inaction of the KM Defendants as berein described,the]Cinder 18 Pipeline was breached,as herein alleged,causing decedent's death. 19 22. to engaging in the actions and inactions described above,the KM Defendants,and 20 DOFS 1-100,did have knowledge of the potential peril that ultimately resulted in 21 decedent's death(Le.,the possibility of a breach of the Kinder Pipeline unless great 22 care was exercised in ascertaining its location,duly notifying and informing workers 23 of its location,and assuring that adequate safeguards were undertaken in work at the Z4. site);and they consciously failed to act to avoid that peril(i e..by failing to engage in 25 the preventive actions,measures,and communications herein described);and they di 26 so,even though they knew,for reasons above described,that injury or death of 27 workers at the Project site was a probable,not merely a possible,result of that danger. 28 ComPh*d ho y Kk&AmrM&-gmr,Ina,era] Z 10/28/2005 15:22 FAX 925 258 5858 G J E & L 0 026 1 23. The acts herein alleged were consistent with and in confarmity with an ongoing 2 corporate or company policy of each such defendant,in the interest of cost-saving an 3 company profits,to purposefully and intentionally ignore a multitude of accidents 4 involving its pipelines nationwide,including 44 accidents in thb KM Defendants' 5 Pacific Operations Unit of hazardous pipelines alone of sufficient severity to trigger 6 federal reporting pnmuant to 49 CFl-§ 19554 since January 1,2003 which resulted •7 in a federal Corrective Action Order from the Department of Transportation("DOT") 8 and a determination by the DOT that continued operation of the Pacific Operations 9 unit would be hazardous to life,property and the environment. The Order required 10 the KM Defendants to address safety policy deficiencies including inadequacies with 11 respect to line-marking and on-call procedures. Despite full knowledge of the 12 consistent pattern of conduct by its employees which led to these regularly occurring 13 pipeline accidents,and despite full awareness of all dangers to human life associated 14 with such accidents,the KM Defendants did intentionally and consciously fail to 15 improve,update or change those ineffective safety policies and practices which led 16 directly to such accidents and failed to meaningfully discipline the employees whose 17 conduct led to such accidents_ Instead,the KM Defendants authorized or ratified 18 such conduct 19 24. The acts herein alleged were either the acts of an officer,director or managing agent 20 of the KRB!Defendants and DOES 1-100;or the acts were consistent with and in 21 conformity with the corporate or company policy of each such dofendant,or said acts 22 were those of an employee of said defendants under circumstances where said 23 defendants had advance knowledge of the unfitness of the employee so acting,and 24 still employed him or her,or,alternatively,said defendants,in the interest of 25 maximizing their business interests,chose to authorize or ratify said conduct. 26 25. All of the conduct herein alleged,taken together,constituted conduct that was 21 nialidous and oppressive as to decedent,in that it was despicable conduct carried on 28 by the KM Defendants with a willful and conscious disregard of the rights or safety Com &*d Irn v I[inderMarp%Ine-,et aZ 14/28/2005 15:22 PAZ 925 253 5858 G J E & L 1@027 1 of others,and it constituted cruel and unjust hardship to decedent accordingly. That 2 is so demonstrated by the allegations above,which demonstrate that the KM 3 Defendants were aware of the peril,consciously failed to act to avoid the peril,and )anew that injury or death was a probable result if they acted in that manner. 5 6 WIUl p FoRB,Plaintiffs Chong A.Imp,Kevin C.Im and Jackie A.Im as decedent's 7 successors in interest,here seek reimbursement for the loss of decedent's clothing and personal . 8 effects damaged or lost in this incident and punitive and exemplary damages against the KM 9 Defendants in an amount to be ascertained at trial. 10 11 12 C� 13 14 15 16 17 18 19 20 21 22 23 24 25 26 : 27 28 Complaairt 2 In P.Smder Morgmy Inc-,et aL 9 xo-08-2005(Tl1E) 15:36 on mai P.004/018 1 W1i..LJAM B SMITH 0"M Bu#583381 ROBERT J.WALD8NffM t9bm Bark 161M) 2 ABRAMSON SMITH WALDSMIT-L LLP 44 MorApmery Street,Suite 3340 3 San.Francisco,California 94104 1a 1��tir _g p 2. 52 Telephone: (415)421-7995 4 Facsimile:(415)421-0912 5 Attorneys for Plaintiffs rr —:r:=�►��}: MICkMEL MATAMOROS and 6 MATAMOROS PIPELINES,INC. 7 8 SUPERIOR COURT OF THE STATE OF CAL70RNIA 9 IN AND FOR THE COUNTY OF CONTRA COSTA 10 `� 11 MICHAEL MATAMOROS,individually Case No. BY I-, 12 and MATAMOROS PIPELINES,INC.,at Corporation 13 I?laiz�lif�fs, COMPLAINT)FOR DAMAGES !� 14 V. 15 ER XIMER MORGAN ENERGY -CASE ISAASS,GE S THIS PARTNERS,L.P-KINDER MORGAN 16 G.P. INC.;KINDER MORGAN,INC.; DEPT Sk,LP;CAMP DRESSER&McKEE, 17 INC_;CAROLLO ENGINEERS; COWORCE TECHNICAL SERVICES, 18 INC.,MOUNTAIN CASCADE,INC; EAST BAY MUNICIPAL UTILITY 19 DISTRICT;ROBS 1-200,inclusive 20 Defendants. , 21 22 FIRST CAUSE OF ACTION FOR N&GLTGENCE BROUGHT 23 AX ELA,IIV Iff S AGAINST ALL DNMNDANTS AND DOES 1-200 24 1. Defendants Dors 1-200,inclnsiva,are:sued herein by fictitious names because 25 PWnaffs are ignorant of the true names or capacities of said defendants,but will insert the 26 same hcrein'when ascertained. 27 2- . At all times mentioned herein,each defendant was aefing as the agent,partner, 28 �� - CMnplaint fot Usinagcs )04202129-i1189DOE 11:1022 M 1 employer, employee,independent contractor,successor in interest, alter ego,subsidiary,parent 2 or joint venturer of each other and was acting within the course and scope of such relationship. 3 3. At all times mentioned herein,defendants KINDER MORGAN ENERGY 4 PARTNERS,L.P.(hereinafter"KMEP"),KINDER MORGAN G.P.,INC. (hereinafter 5 "KMGP")KINDER MORGAN,INC. (hereinafter"KW), SFPP,LP(hereinafter"SFPP"), 6 CAMP DRESSER&McKEE,INC. (hereinafter"CDM"),CAROLLO ENGINEERS, 7 COMFORCE TECHNICAL SERVICES,INC. (hereinafter`COMFORCE") and DOES 1 8 through 50 planned,designed,manufactured,constructed,installed,engineered, excavated, 9 trenched, owned,operated, controlled,supervised,managed,located,field marked, flagged, 10 mapped, identified, surveyed, charted,monitored and inspected a high pressure fuel pipeline 11 system located,in part,in the City of Walnut Creek,County of Contra Costa, State of 12 California(hereinafter"Kinder Pipeline"). 13 4. At all times mentioned herein,defendants MOUNTAIN CASCADE INC. 14 (hereinafter"MOUNTAIN CASCADE")and DOES 51 through 100 planned, designed, 15 manufactured,constructed,installed, engineered, excavated,trenched,owned,operated, 16 controlled, supervised,managed,located,relocated,field marked,flagged,mapped,identified, 17 surveyed,charted,monitored and inspected a public works construction project for defendant 18 EAST BAY MUNICIPAL UTILITY DISTRICT(hereinafter"EBMUD')known as the 19 Walnut Creek-San Ramon Valley Improvement Project(hereinafter"the Project")which 20 involved the installation of a water pipeline(hereinafter"the EBMUD Pipeline")in the vicinity 21 of a high pressure fuel pipeline system located,in part,in the City of Walnut Creek,County of 22 Contra Costa, State of California. 23 5. On or about November 9,2004,and prior thereto,defendants KMEP,KMGP, 24 KMI SFPP,CDM,CAROLLO ENGINEERS,COMFORCE and DOES 1-50 so negligently, 25 carelessly,willfully and recklessly planned,designed,manufactured, constructed,installed, 26 engineered,excavated,trenched,owned,operated,controlled,supervised,managed,located, 27 field marked,marked, flagged,mapped,identified, surveyed,charted,monitored and inspected 28 2 Complaint for Damages 1 the Kinder Pipeline so as to cause its location to be unknown,uncertain and misidentified,and 2 thus dangerous. 3 6. On or about November 9,2004,and prior thereto, defendants KMEP,KMGP, 4 KMI SFPP, CDM, CAROLLO ENGINEERS,COMFORCE and DOES 1-50 so negligently, 5 carelessly,willfully and recklessly failed to properly Iocate and mark the location of the Kinder 6 Pipeline under Government Code §4216.3,California Code of Regulations §1541(b)(1),and 7 CFR 49,Part 195.442(a);failed to properly advise MOUNTAIN CASCADE and DOES 51- 8 100 of the location of the Kinder Pipeline in relation to the EBMUD Pipeline in accordance 9 with Government Code §4216.3,California Code of Regulations §1541(b)(1), and CFR 49, 10 Part 195.442(a);and failed to properly monitor and inspect the excavation work on the Project, i l survey the conditions, and determine safeguards necessary to conduct the work in a safe 121 manner pursuant to California Code of Regulations §1511(b)so as to cause the location of the 13 Kinder Pipeline to be unknown,uncertain and misidentified,and thus dangerous.. 14 7. On or about November 9,2004, and prior thereto, defendants MOUNTAIN 15 CASCADE MOUNTAIN CASCADE and DOES 51 through 100 so negligently,carelessly, 16 willfully and recklessly planned,designed,manufactured,constructed,installed,engineered, 17 excavated,trenched,owned, operated,controlled,supervised,managed, located,relocated, 18 field marked,marked,flagged,mapped,identified, surveyed,charted,monitored and inspected 19 the EBMUD Pipeline Project as it followed South Broadway between Newell Avenue and 20 Rudgear Road in the City of Walnut Creek,County of Contra Costa, State of California,as to 21 penetrate the Kinder Pipeline and to cause flammable material within it to escape,causing a 22 major explosion and large fire. 23 8. On or about November 9,2004, and prior thereto, defendants MOUNTAIN 24 CASCADE MOUNTAIN CASCADE and DOES 51 through 100 so negligently, carelessly, 25 willfully and recklessly failed to verify or determine the exact location of the Kinder Pipeline 26 that was in conflict with the its excavation in violation of Government Code Section 4216.4(a) 27 so as to cause flammable material within it to escape,causing a major explosion and large fire. M 28 3 i Complaint for Damages 1 9. By reason of the conduct of defendants herein alleged,the resulting explosion 2 and fire caused the death of three and injuries to two experienced employees of plaintiffs 3 MICHAEL MATAMOROS and MATAMOROS PIPELINES,INC.,significant damage to 4 personal property,loss of profits,and loss of business. 5 10. By reason of the conduct of defendants herein alleged,plaintiffs MICHAEL 6 MATAMOROS and MATAMOROS PIPELINES,INC.seek interest according to the law. 7 8 SECOND CAUSE OF ACTION FOR PREMISES LIABILITY BROUGHT_ BY PLAINTIFFS AGAINST KMEP SFPP KMGP EMI 9 CDM CAROLLO ENGINEERS COMFORCE MOUNTAIN CASCADE AND DOES 1 THROUGH 100 .10 11. Plaintiffs hereby incorporate by reference each and every allegation contained in 11 paragraphs 1 through 10 of the First Cause of Action and make it a part of this Second Cause 12 of Action as though fully set forth herein. 13 t 12. At all times mentioned herein,defendants KMEP,KMGP,KMI SFPP,CDM, 14 CAROLLO ENGINEERS,COMFORCE,MOUNTAIN CASCADE, and DOES 1-100 owned, 15 controlled and/or occupied the land,property and/or premises in which the EBMUD Pipeline 16 171 was being excavated. 13. At all times mentioned herein,said real property contained a hidden condition or 18 conditions which created an unreasonable risk of harm to the public and those working on the 19 Project,including plaintiff MICHAEL MATAMOROS and the employees of plaintiff 20 MATAMOROS PIPELINES,INC. 21 14. At all times mentioned herein,defendants KMEP,KMGP,KMI SFPP,CDM, 22 CAROLLO ENGINEERS,COMFORCE,MOUNTAIN CASCADE, and DOES 1-100 knew 23 or should have known about such condition or conditions,and failed to make reasonable 24 inspections to discover such condition or conditions. 25 15. At all times mentioned herein,defendants KMEP,KMGP,KMI SFPP,CDM, 26 CAROLLO ENGINEERS, COMFORCE,MOUNTAIN CASCADE, and DOES 1-100 27 28 negligently,carelessly and recklessly failed to take reasonable precautions to protect against 4 Complaint for Damages I such condition or conditions and the harm likely to result therefrom,and/or give adequate 2 warning to those likely to be injured therefrom,and negligently,carelessly and recklessly 3 owned,controlled and/or occupied the land,property and/or premises in which the EBMUD 4 Pipeline was being excavated. 5 6 THIRD CAUSE OF ACTION BROUGHT BY PLAINTIFFS FOR STRICT LIABILITY FOR ULTRAHAZ RDOUS ACTIVITIES AGAINST DEFENDANTS KMEP. 7 KMGP KD'II SFPP CDM COMFORCE CAROLLO ENGINEERS AND DOES 1 THROUGH 50 8 16. Plaintiffs hereby incorporate by reference each and every allegation contained in 9 paragraphs 1 through 10 of the First Cause of Action and paragraphs 12 through 15 of the 10 Second Cause of Action,and make it a part of this Third Cause of Action as though fully set I1 forth herein. 12 17. - At all times mentioned herein, defendants KMEP,KMGP,KMI SFPP, CDM, 13 COMFORCE, CAROLLO ENGINEERS and DOES 1-50 planned, designed,manufactured, 14 constructed,installed,engineered,excavated,trenched, owned,operated,controlled, 15 supervised,managed,located, field marked,marked,flagged,mapped,identified, surveyed, .16 charted,monitored and inspected the high pressure fuel pipeline system known as the Kinder 17 Pipeline,which constituted ultrahazardous activities that created a high degree of risk of 18 significant harm to persons and property due to the extremely flammable and volatile nature of 19 the petroleum and fuel transported by the Kinder Pipeline through a residential neighborhood 20 and the community. 21 18. As a result of defendants KMEP,KMGP,KMI SFPP,CDM,COMFORCE, 22 CAROLLO ENGINEERS and DOES 1-50 engaging in the aforesaid ultrahazardous activities, 23 plaintiffs MICHAEL MATAMOROS and MATAMOROS PIPELINES,INC.sustained 24 significant damage to personal property,loss of profits,and loss of business,the kind of harm 25 that would be anticipated as a result of the risk created by the aforesaid ultrahazardous 26 activities. 27 19. The aforesaid ultrahazardous activities were a substantial factor in causing said ( 28 5 Complaint for Damages 1.� 1 harm to plaintiffs. 2 FOURTH CAUSE OF ACTION FOR NEGLIGENT INTERFERENCE 3 WITH PROSPECTIVE ECONOMIC RELATIONS BROUGHT BY PLAINTIFFS AGAINST DEFENDANTS KMEP,KMGP,KMI,SFPP, 4 CDM. COMFORCE,CAROLLO ENGINEERS,MOUNTAIN CASCADE AND DOES 1 THROUGH 100 5 ' 20. Plaintiffs hereby incorporate by reference each and every allegation contained in 6 paragraphs 1 through 10 of the First Cause of Action and paragraphs 12 through 15 of the 7 Second Cause of Action,and paragraphs 17 through 19 of the Third Cause of Action,and 8 make it a part of this Fourth Cause of Action as though fully set forth herein. 9 21. Prior to November 9,2004,plaintiffs contracted with MOUNTAIN CASCADE 10 to perform welding on the Project that would have resulted in economic benefits to plaintiffs. 11 22. Defendants KMEP,KMGP,KMI SFPP,CDM,COMFORCE, CAROLLO 12 ENGINEERS,MOUNTAIN CASCADE,and DOES 1-100 knew or should have known of the 13 economic relationship between plaintiffs and MOUNTAIN CASCADE. 14 23. Defendants KMEP,KMGP,KMI SFPP,CDM,COMFORCE,CAROLLO 15 ENGINEERS,MOUNTAIN CASCADE,and DOES 1-100 knew or should have known that their acts 16 17 and/or omissions were substantially certain to disrupt the economic relationship between plaintiffs and MOUNTAIN CASCADE. 18 24. Defendants KMEP,KMGP,K U SFPP, CDM,COMFORCE, CAROLLO 19 ENGINEERS,MOUNTAIN CASCADE,and DOES 1-100 acted negligently,carelessly,willfully 20 and recklessly,as outlined above. 21 25. The failure of Defendants KMEP,KMGP,KMI SFPP,CDM,COMFORCE, 22 CAROLLO ENGINEERS,MOUNTAIN CASCADE,and DOES 1-100 to act with reasonable care 23 was a substantial factor in causing a disruption of plaintiffs economic relationship with MOUNTAIN 24 CASCADE. 25 26 27 21 6 Complaint for Damages r 1 FIFTH CAUSE OF ACTION FOR MALICE AND OPPRESSION BROUGHT BY PLAINTIFFS AGAINST DEFENDANTS KMEP,KMGP,KMI, 2 SFPP CDM COMFORCE CAROLLO ENGINEERS MOUNTAIN CASCADE AND DOES 1 THROUGH 100 3 26. Plaintiffs hereby incorporate by reference each and every allegation contained in 4 paragraphs 1 through 10 of the First Cause of Action and paragraphs 12 through 15 of the Second 5 Cause of Action,and paragraphs 17 through 19 of the Third Cause of Action,and paragraphs 21 . 6 through 25 of the Fourth Cause of Action,and make it a part of this Fifth Cause of Action as though 7 fully set forth herein. 8 27. At all times mentioned herein,defendants KMEP,KMGP,KINII SFPP,CDM, 9 COMFORCE,CAROLLO ENGINEERS,MOUNTAIN CASCADE,and DOES 1-100 intended to 10 cause injury or engaged in willful,wanton,malicious,oppressive,grossly negligent,reckless,and 11 despicable conduct carried on with a conscious disregard for the rights or safety of others,including 12 plaintiff's and their employees,given the dangerous and ultrahazardous nature of the work performed 13 on the Project,the Kinder Pipeline,the close proximity of the Kinder Pipeline to the EBMUD Pipeline, 14 the failure to properly locate and field mark the location of the Kinder Pipeline under Government 15 16Code§4216.3 and California Code of Regulations§1541(b)(1),the failure to adequately identify the location of the Kinder Pipeline in relation to the EBMUD Pipeline in accordance with Government 17 Code§4216.3,the failure to monitor and inspect the excavation work on the Project,survey the 18 conditions,and determine safeguards necessary to conduct the work in a safe manner under California 19 Code of Regulations§1511(b). 20 28. At all times mentioned herein,the acts and omissions of defendants KMEP,KMGP, 21 KMI SFPP,CDM, COMFORCE,CAROLLO ENGINEERS,MOUNTAIN CASCADE,and DOES 22 1-100 subjected plaintiffs and their employees to cruel and unjust hardship,justifying an award of 23 punitive or exemplary damages. 24 29. At all times mentioned herein,officers,directors and/or managing agents of defendants .25 KMEP,KMGP,RMI SFPP,CDM,COMFORCE,CAROLLO ENGINEERS,MOUNTAIN 26 CASCADE,and DOES.1-100 had advance knowledge of the unfitness of its employees and 27 contractors,and employed or retained them with a conscious disregard of the rights or safety of others, 28 Complaim for Damages I authorized or ratified the wrongful conduct of its agents,employees,representatives,independent 2 contractors,justifying an award of punitive or exemplary damages. 3 4 SIXTH CAUSE OF ACTION FOR DANGEROUS CONDITION OF PUBLIC PROPERTY BROUGHT BY PLAINTIFFS AGAINST EBMUD AND DOES 101-130 5 30. Plaintiffs hereby incorporate by reference each and every allegation contained in 6 paragraphs 1 through 10 of the First Cause of Action and paragraphs 12 through IS of the Second 7 Cause of Action,and paragraphs 17 through 19 of the Third Cause of Action,and paragraphs 21 8 through 25 of the Fourth Cause of Action,and make it a part of this Sixth Cause of Action as though 9 fully set forth herein. 10 31. At all times mentioned herein,EBMUD,and DOES 101-110,inclusive, and each of 11 them,owned and or controlled the property where the Project was performed. 12 32: Due to the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline and '.� 13 the location of the Kinder Pipeline;the property was in a dangerous condition at the time of the 14 incident. 15 33. Due to the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline and 16 the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline,the dangerous condition on 17 the property created a reasonably foreseeable risk of harm to plaintiffs and the employees of plaintiffs 18 which ultimately occurred. 19 34. At all times mentioned herein,EBMUD and DOES 101-110 had actual and constructive 20 notice of the dangerous condition for a sufficient period of time to plan,design,own,supervise, 21 control,survey,construct,and or otherwise manage the Project in a safe manner to ensure the safety of 22 the public and those working on the Project,including plaintiffs and their employees. 23 35. At all times mentioned herein,EBMUD and DOES 101-110 acted so as to cause harm 24 to plaintiffs and their employees. 25 36. The dangerous condition on the property was a substantial factor in causing harm to 26 plaintiffs and their employees. 27 37. On or about May 9,2005,plaintiffs,and each of them,presented their claims to 28 8 Complaint for Damages I EBMUD pursuant to Government Code§910. On or about May 10,2005,EBMUD rejected the 2 claims in their entirety. 3 4 PRAYER FOR RELIEF 5 WHEREFORE,plaintiffs MICHAEL MATAMOROS as an individual, and MATAMOROS 6 PIPELINES as a corporation,prays for judgment against all defendants,and each of them as follows: 7 1. For non-economic damages in an amount to be proven at trial; 8 2. For economic damages in an amount to be proven at trial; 9 3. For punitive and exemplary damages in an amount to be proven at trial and as requested 10 in this Complaint; 11 4. For costs of suit;and 12 5. For such other and further relief as the Court deems proper. 13 DATED: November 7,2005 ABRAMSON SMITH WALDSMTITI,LLP 14 15 WILLIAM B.S 16 Attorneys for Plaintiffs MICHAEL MATAMOROS and MATAMOROS 17 PIPELINES,INC. 18 19 20 21 22 23 24 25 26 27 28 1 9 F f Complaint for Damages ' ABRAMSON SMITH WALDSMITH, LLP ALBERT R.ABRAMSON PHONE: OM 421-7995 WILLIAM B.SMITH ATTORNEYS AT LAW FAX (415)421-0912 ERIC M.ABRAMSON 44 FRANCISCO, MONTGOMERY C STREET SUITE 3340 EMAIL- jusdoe@abmmon-smid mm ROBERT J.WALDSMTCH SAN FRANCISCO.CALIFORNIA 94104 4712 WEBSITE: www.ebnmson-smid"m November 21, 2005 Jason Zhao Lewis-Brisbois Bisgaaard & Smith One Sansome St. #1400 San Francisco, CA 94104 Re: Matamoros v. Kinder Morgan, et al. Case No. MSC05-02349 Dear Mr. Zhao: Pursuant to your telephone request, enclosed is a copy of the above-entitled complaint for damages. Very. truly yours, KayB iter for WILLIAM B. SMITH • 1(1/99/2865 11'68_-. .9253. 11E L".=?- 27 _ PAGE 83/19 . a �I ` '"' 1 88 1 PAfflYWm►Donna►p 01=4,,an.armmwj;�n.+k "' Enoron wwr uoeo,ar tater J. McNulty, Esq./BBN: 89660 MtYNtil.ty Law rimt [� 821 Mora gga Drive Loa Angeles, California 90049 1i3fim nmNoc (310) 471-2707 PIatNO.tgor v&- (310) 472-7014 4 ATMMW-FOR Oft*Pl t y w aofrcou .SUPERIOR COURT OF CALIFORNIA strrerrAcone&725 Court Street K ' • '1 rrwurrsrmoax M Same . omAnowcom Martinez, CA 94553 a a..htn w0NC Oft Martinez PLAINTff JUEMY AND JOHANNA KNOX DVENDANT;MOUNTAIN CASCADE, INC.; HINDER MORGM ENERGY \` PARTNERS O8 HOUSTON, INC., and . DOER f To L_ OM �w•y,Property Wronghtl Death AMEN' Ww&hftr&I►rf*gk*): Assigned to Department f.3 U=OitVM=X (1]OTHER(specW: General Negligence All purpose ssstgnment,pe rj PmPertyDamage rj ftw W Oaath Intentional. Tort COdQ Of CMI Prom 170.6(2)" J� PersoDaf Mjury [X]Oder Da►nc�as(spades:Exemplary • Owts"on kherAN chef aRpM., l.= ACTION IS ALIFTED CASE CABS MASM Arnawm demearded does not exre.d 110.+ SUMMONS ISSUED exceeds$10,A00„but does not exceed$MOOD WVON IS AN t1NLIMfM CIVIL.CASE{exceeds 125,W p A LJ ACTON IS RECLASSRWO byiNs amended camplaW M *=MMW to until ditd Aw unOmfmd to UnlRed 1. PLAwwF(mama): JEREMY AND JOHANNA KNOX aAige9 eaves of adon agablatDEPMANT fl7amek,Potnmin o w_=, tare.; lKnim rmtatrtr s MGM AARTMM or mu"M 2 Tfds plead!M Wud bV Afted menta and WARP,consist of the foltowbig nwbw of pages: 7___._ 3. Eachnamed above is a competent aduk rcpt except ptatna 0"Mo. (1) a owpor"on gWWWd to do business In C.aNt mla 0 an tmhrcorporaW w tier(dew2eJ: (d) f_J a pubNc wft(alesanba): (4) Cl a mMor [� an adult W(-I for whom a guanilert or corieermW of the estate or a guardian ad&tem has been appotnted (b)F j other wew. - (6) CI otter know). b. pt plaintiff(r►a w). - l1) a corporation gtmRW to do busteew In CaMomia 121 C-I an wMowpomtod m0ty(dsscr►1ie): 0 a pubgo en*y./(!AW - v w �fp (4) C3 a minor• 1 . (a)0 for whom a 9'mTd%n or conservaWr of the estate or a guardian ad Ittem has been appointed 1 0 C-1 other(sped&): (6) L-1 other(spsW 10 =1 Information about add'itlonal plabTift who are not competent adults Is shmm h Complalm—Attachment 3. - 1a3 Fol" dFMft COMPLAINT--PeraonalI*ryr,Property „ 14W 00ft0f dProeavne.142L1: aw•me..�..•.+.., 92637 lPS AGE 64/10 02/09/2005 i .87 .._..A,..�,�...sow: »,r, .......�, �. ;:.•. ;:�;:i:a' "^'. 8H0R'TTMr=RN0X V. MOUNTAIN CABCADE, et al. CAN NUMM 4r �Pfalndif(nAme): to doing business under the flotitious name(ape*). and has complied with the flotillcov business name laws. 6. Each defendant named above Is a natural person a.M wept detenda nt(now).MOUNTAIN a [] axon,!debowlant(name): CASCADE, INC. ' (hereinafter "MCI") (1) []a buslnsss organization,form unknown (1) []a business o►ganlxadon,form unknown (2) rv- J a eap (Ll p mom 0) [_]tin unincorporated erni<y(describer (3) n an u nhoorponsted an*(de=W: (4) Ej a pone oft(dela w.- (4) 1-1 a pubic entity(des0e). (b7 L 7 other(**W): t5? n other opeay. b. M except deiendant(name): KINDBR MORGAN d. �—} except defendant(name): ZMGT PARTNERS Or HOUSTON, INC. (hereinafter "KWEP") (1) r3 a business organization,form u*mn p) (;,a business organization,forth urdmarm j� 0 W a corporation 0 n a corporation C3) []an unincorporated entlty(dew0m): (3) C_j an uninoorporated w6V(desalt): (4) c.l a public m*(des<a rWr (4) 0 a public entity(desaft): (6) u oilier(spscifyr (6) [_(other(spmw: [�Information about additional defendants who are not natural persona 19 containpd to Oanplamt--Attachmem S. &Thr true names and capacities of defendants sued as Doss are w*ncwn to plabn(tf. 7.[ {Defendants who are joined pursuant to Code of CM Procedure section 382 ars(mmes): e. We court to the proper court because. a. rj at least one dstsndattt now resides 10a jurisdiodonal area. . h. L73 ft p itnelpai place of business of a defendant oorpOnatlon or unlncWp0MfXd association Is in its Ws"onai areal, a ir>jury to person or damage to personal property occurred in its jurWc6onai area. - d. F—J other(spedW. 9.M Plaintiff is required to empty WM a claims statin,and a. pkdndff has complied with applicable halms statutes,or b. pleiMltf is excused from complying because(specify): as;trn ttt+v u+r t.2oo•4 COMPLAINT--Personal ln&arv.Prowuw ?Mgt*; 82/89/2906M._�, Qj,7 .••? B5/ie 11.68 'J253i STS :� » •,•• ,•• 4aw i+w -t +»7'::.Vf'f•:t::l: •�'-.�.. �� .i �.:.�. :.\.L«a'•/•%�-+•�•r.�r3w�+•�1.'•l.r.7�Jr,•• ..•+:wat::�..• rte•-�� .Y '6 N SHORTTMMKNOX V. MOUNTAIN CASCADE, at al. CW$Lqgmm 10.The fbilow(ng causes of action are aeteohed and the obmenis above appy to eaoh(each conpieW mwt have one or rnorw aeu�s ofraodon.itt�d►reaD; a L� Motor vehme h ( ) evneral wopenoe C6 Intengonsl Tort d. Products liability a[2 Pmnlum Liability L other*e*j: 11.Plair111fl has suffered a r13 wage loan b.C j Ives of use of property a hospital std Me"expenses d genas)damage e.L tC._1.ion of earning city g.aj otherdamape(seedy): Los's of Consortium by plaintiff, Johanna Knox i2 L The damages dalmed for wmngU death and Ups retaflonslups of plalnMt to the deceesetf are LEI fisted in Complaint--Attachment 12 b.C_l as toilmm 13,The relief sought in this corn pWrit is widen the jeulactlon of Ibis court 14.PUWff PRAYS for judgment for boats of surd for such mW as is fad•just,and vg<it O;and for L (1) M 00mpowatwydamapea t2? W partitive d ages b. The wmrn of dai wVs is daumust dreok(1)M oases Or persona►#*Wor wrongM deeft (1) 18.1 socoOV 10 proof 0 Ln in vie orwuM of S 16. W The paragraphs of this complaint aftedt n tnformetion and belief are as follows(speclly paragraph numbers): IT-1 (1), (2), (3) and (9) Om January 2005 Retez ,il. MCRgIty ' 1� iTYPEORP�R6NMD ORATrOPT stl'Y) oezattrtrmKe,e t.Aoore COMPLAIRiI•--PaWnal k*0,Property_ veo.sre 02/09/2005 11:59 92=2, T T ? 5TH �: _ _ ••�' 05/lA N w.+r,N++rwyw•-..+.. •..Y•:tJ+ �`�..aL•.:✓.� �.:ivi. ^:... .:a4.J�..-:...siwJ.�.._.: ., • IIS• ••t. Y� Tnm nox-v_ MOUNTAIN CASCADE, et al. PrRST CAUSE OF ACTION-General Negreent a tuns..„¢- ATTACHMENT TO - ®Complaint t1c miss-Complaint Rise a sepeuate cause of aoifon Mrm for each cause of acfto ON-1. ftredff(Hamer J1r tMff KNOX alleges tw defendant(nsmoJ: RCI, MaP and M Does I mSC Bras the ked(p=knaW aauae of damages to plalnK By the MMft acts or W das M to ea4 de�ant negoget*caused tie damage to pl" on~ Tuesday, November 9, 2004; 1 :30 p._m. }; walnut Creek, California (desc*lon Of re wm for A~. 7. Jeremy 7Knox, a welder, employed. by Matamoros-Welding, was working on part of the East Say Miaieipai Utilities District water pipeline project when an mci employee operating a backhoe breached the gas pipeline owned by MW causing an explosion to occur. 2. MCI, by and through its agents and employees, Doss 1-10 inclusive, is responsible, under the doctrine of respondeat superior, for said acts and omissions, Which include but are not limited to failure to properly notify amp and identify the gas pipeline prior to digging and failing to protect the integrity of the subject gas pipeline. 3. IOW, by. and through its agents and employees, Does 11-20 inclusive, is responsible for plaintiff Jeremy xnox's injuries due to thein failure to properly identify, demark and otherwise-protect the subject. gas pipeline from inadvertent breach. 4. Does 21-50 inclusive, are responsible, in ways yet -unknown, for this avoidable -tragedy.. Leave will be sought to amend this Complaint to set forth ttieir.roles and responsibility once ascertained. RA Mom %"aCAUSE OF AMON-general Negligence eAGE 02/89/2005 11^,58 9 „3721 ► - TFE,IP$ •+`",, 27, _ ... yV. -I f .•....w.... �. .:rk MR�.'t.' •Y+.'s• . ,,r`�:Ati...rl:irt:��v.w::.a•: ..r.- •.r.. SHORTTM,e OA8H6NJk MX V. YDMAIN CASCADE, et al. sEME CAUSE OF ACTION•General Negligence page.5 ATTACHMENT TO M Cot t*nt LlQws-Complahu (Use a aeparats cause of 0abn fc m for eedt cause ofaaftj GN-1. Pl*ffl(namal.: 10HWA KNOX alleges that defendant(Hamer MCI, KW and CXi Does I _.t5.0 was the Isgal(pto*ntaty)oattev of d4ntapes to ptaira By the folkWrq acts or oWsslons to ack defendant n ftv *oa teed the damage to ft" on(dater Tuesday, november 9,. 2004; 1 .30 p.m. at(ptecvk Walnut Creek, California (dW=Vlonof mamw krtlaN4yr- 1_ plaintiff, Johanna Knox, repeats and realleges as if set forth in full herein, the First Causal of Action. 2. plaintiff, Johanna Knox, was lawfully married to Jeremy Knox at the time 'of the subject incident and as a result of defendants negligent acts and omissions suffered loss of. his consortium due to the injuries sustained by hint. Faaasi+re �°'d Jbm J CAUSE OF ACTION-Qeneral NegligenceCCP42LIR OV09/2005 11:58 925372 In STORE.7 ... ...� ' . .. .. :' P�1 ''•�{18. MOST ME- KNOX V. MOUNTAIN CASM3, at al. ce�slas+eem 3ZIPM CAUSE OF ACTION-Intentional Tort Pips 6 ATTACHMENT TO (X7 Complaint 0 Cmas-Compal (Use a separate cause of action Ibrm for each cause of scthn) MI. ftntfff(AaMe): �RSMr KNOX alleges that defendant(nameh MCI and MJ Does 1to 9; vm Ste No **nm) cause of damages fo pWtffL By the following acts or omfsslons to act. defendant intentaottalfy caused the damage to pWntlff cn(data): Tuesday, November 9, 2004; 1:30 p.m- at(place): Walnut: Creek, California tdese dptbn ofreasom kr HMN(y},. 1 . Plaintiff repeats and realleges as if.set forth in full the first cause of Action. 2. MCI and Does 1 through S were aware, prior to commencing digging in .the area, that XHRP's gasoline pipeline was in the immediate area and posed a significant risk of-danger should it be breached; especially if people in the area were operating machinery or tools that could provide a source of ignition. 3. MCI and Doeg 1 through• 5 were also aware that backhoe digging operations were ongoi.ncl and that welders would be working in the same area. Due to a desire to maximize corporate profits and avoid delay penatieffi at the expense of human life, despite the kxtown damages, MCi and .Does 1 through 5 chose to proceed with digging and welding operations -despite knowing the exact location ofKMEP's gas pipeline and taking all necessary steps to locate. it, isolate it and prevent it frond being inadvertently breached, 4. As a.proximate result of these defendants willful, wanton and Malicious misconduct, the subject avoidable explosion occurred and plaintiff was severely injured. '� . reaaAso�vaabs0» � duAeldoe�oga grata CAUSE OF ACTION-Intendonat Tort law CCP42LI2 AGE 02/09/2006, 11Y60 � � ,__sm,.�-w�-:-�G" ... :.�':: STORE„27:.r.. . . �P ^09/18 SHORT 7M.F: KNOX 'v. MOUNTAIN CASCADE, st al. NUMOM Exanpiary Damages Atbwhm d Pop 2__ ATTACHMENT TO DO OMPialnt [.j Cross-Complalnt BX-1. As addidonal damages against defendant(name): MCI and DOES 1-5 Plaintlff alleges dWmdant was gutty of Cil maliee l_rl fraud (7C� oppression as defined in ON Cods secdon 32K and pMhdtf should recover, in addlon to actual daTages, damages b make an example of and to punish dein DC-1 The fads suppodng plalMiff'e dadm are as Uovvs: 1. Plaintiff repeats- and realleges as if set forth in full herein, Plaintiff's rirst and Third Causes of Action. EX-& The amount of exam*ry damsought is a.M not shown,pursuant In ages Code of CMI Pmosdure section 425.10. b. Gls . wo r D1;MMPWiY DAMAGES ATTACHMENT CCPAMt: +82/89/2006 11:58,,92537 l ? �: _. PA It/19 7..y.w •J•i;••.y' -•, ..rr`a r•r•♦.r��.a..A�•::�itl..L�.J..�'I:Y'J..w.-�...� • t > 0 ��ro�aronr�mrwm+ourKnwa�erav��.a: ,�a.aa�r '; �oncouwuue�eoe.r . -Peter J. McNulty, 89cl./BStV: 89660 McNulty Lave Firm 827 M*ragga Drive Los Angeles,- California 90049 rttroNeno, (310) 471-2707 rwtna (310) 472-7014 sur ort Daunt o� taati oo,n�mr oK CDW= COSTA I005 —2 A 2b trAWeoCMR 725 Court, Street tteuwmxmw arrtvtozp000m Martinez, CA 94553. ' on Martinez CASE NANL: XNOX v. MOUNTAIN CASCADE, et al. • n lArAirl CML CASE COV0 SHE!? Omplex Cessviv �jr " w WW E3 - L] atttaner C� Jolrttl.r MA Man►tiraa aPpeetor►oe b/dstemfatnADM I (oat.fuss of COWLtuM 1$11) o6•rs Af Nve.ls ftww AebwwAid be ownphad bmtnretM m on EW z). 1.Check one baoc below for the owe type that best describes thh case: AubTet course C�t ai 0 d�►(oa d m $048 s1 ) J Uninau�d motottst f48) U ColMabor�s N9I U mww*'n&ro0uttrtion(031 opar PUPww4 M+ptrl►�PtoNar4► Q h�eewum txiwraos(10 Q Goran uWan deW(10) osarsgdwreaand uerdd Tort L30dwwwwon El Mas tat cam CD Atter 04 treat mares► L sea.+u.e tm U Pmd=HohW 00 �]Einktead datl**w w O EnutaxnstMslRorda"an LA[ueftd watrwwa m oondmmaftn(ta). u b+sctnoioe t�verape� n3 amm tam the 1,87 Dam PbP1m(m Q yr s evtoeort above 6stad t N a t� 110-POW"(00"d Tat Q Oder real property(2$} "a(41) L,l<almm tmrBta*air buetrress rxactw tA71 .1adkownent otiudmnerd r:i CNN vft mm urtr wnd DeWner Q Entoresmerd of Ju%'rot(0) [_]Cefamatbn(1m U CgnmacW(91) miamftwous clvo complaint C]R,d(lo � l m * L,wmieew ptwwv(19) JadloMl NevMo Q OYWor No+l d ttbov�l N2) U MO=W*ne*-m U Asse!torfeMrp wmowhmotrs cava POO" Q other con-PUPaw�rat(351 Q P. on ray arworedon award n1) Q Wd WWM ) C1 W a�erna t ps► �I WrtolmarmW A ro¢1 (D De er cet�rt t�t�t�d tit Q oew nm C�other prd i tt vbw csei 2- 7hh eaw LZI to EXI knot eanpletc mfw rult►1800 d tlw C W to*Rules of db A lferose Is Comptmc,mark the laotole reaPrw end l manegsmerru "a•.L'':J!.saps number of separatey,spans ted pwfts d. [:]Love number of wanessw b." L7 MNWft muff praetloe raising efltfbt*or novel e- (J Coord twilbmkodadonspand'moinoneormorewm- ksues that wS be 14t7scon8tartp g!o resolve In other counties,states or ooz*ies,or in a federal ooutt a (D&bsmnw amountd documvrdwy wklwtoe f: r-]SubdmtW poo*dpment*Wal supeMakm 3. Type eat mme"eotgp(dW*ad Mems: a- LM monetary b- [-,-norpnonewy,*damwry or inJuncthre relef a [T punaive 4. ldct rbW d causes d codon 6ped4* One 6. 71tb case Q is [U Is not a dans notbn su[L Date:January 13, 2005 , Peter J. McNulty NOTICE e Phdn1 tf must SS this cover sheet W8b thebnst algid In the soft or (erica emd datms.oases or oam died Pmbat%may,or Webb and sCoft(Cat.Rales of Cowt rule 201.8,) FaR ne to file may mach in e R8 d $Dauer sheet In addfflw to ww cover sheet retluli d by Wel nowt Ms. •0 this case Is wmplex under rule 1800 at seq.of the Cel kala Rules of Cetrrrt,you must sere a copy of ttds Dauer sheet on d other parga�n the adios or proofing: • 1his In a amraem 19m um i OWL CAM 004M GFWU mad" N WFeteOttm•a'h� 'Y• 1 JOHN M.ANTON State Bar No.54888 WILLIAM E.LOMMRDINI, State Bar No. 191464 2 BOXER&GERSON, LLP 300 Frank H. Ogawa Plaza 3 Rotunda Building, Suite 500 ` . Oakland, California 94612 IF LED 4 Telephone: (510)835-8870 ALAMEDA COUNTY Facsimile: (510)835-0415SAN 6 2005 5 ANTONIO R IZ,State Bar No. 155659 E gup R of 6 CONCEPCION E. LOZANO-BATISTA, State Bar No.227 8 WEINBERG, ROGER&ROSENFELD, P.C. 7 A Professional Corporation 180 Grand Avenue,Suite 1400 8 Oakland, California 94612.3752 Telephone: (510)839-6600 9 Facsimile: (510)891-0400 10 Attorneys for Plaintiffs 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 13 COUNTY OF ALAMEDA g G p 519 5 5 6 7 JUANA LILLAN ARIAS, individually and CASE NO. - 14 as guardian ad litem for ADRIANA CRISTINA RODRIGUEZ ARIAS and COMPLAINT FOR PERSONAL. 15 ALEGANDRA STEPHANIE INJURIES AND WRONGFUL DEATH RODRIGUEZ-ARIAS minors, and 16 ALICIA RODRIGUE2 17 Plaintiffs, 18 vs. 19 KINDER MORGAN, INCORPORATED; IONDER MORGAN ENERGY 20 PARTNERS LP;MOUNTAIN CASCADE, INC.; and DOES 130, ' . 21 ; Defendants. 2223 i Plaintiffs,by and through their attorneys Boxer&Gerson, LLP, and Weinberg, • E 24 Roger&Rosenfeld, P.C.,allege as follows: 25 GENERAL ALLEGATIONS 26 1. Defendant Mountain Cascade, Inc. is a corporation organized under and j 27 by virtue of the laws of the State of California with its principal place of business in the i 28 County of Alameda. ti ' COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 1 i • 1 2. The events 1n issue occurred during the performance of a contract 2 entered into in the County of Alameda. 3 3. East Bay Municipal Utility District is a publicly-owned utility formed under 4 the Municipal Utility District laws of the State of California with its headquarters in the 5 City of Oakland, County of Alameda .6 4. The events in issue occurred on or about.Tuesday, November 9, 2004, in 7 and adjacent to a 14 foot deep trench within the South Broadway Easement in a 8 residential neighborhood between Newell Avenue and Rudgear Road, in the City of 9 Walnut Creek, County of Contra Costa,State of California. 10 6. In and adjacent to the 14-foot trench,construction workers were building 11 a 694nch water pipeline,known as the Northern Pipeline,to transport water from 12 Walnut Creek to San Ramon. 13 6. East Bay Municipal Utility District's general contract was initially awarded 14 on or about September 24,2002,to Modem Continental Construction of Cambridge, 15 Massachusetts. On or about May 28,2004, East Bay Municipal Utility District issued a 16 `Notice of Default Termination"to Modem Continental Construction. 17 7. On or about August 10,2004,East Bay Municipal Utility District awarded 18 its general contract to Mountain Cascade, Inc-, a corporation organized and existing 19 under and by virtue of the laws of the State of California,with its principal place of. 20 business in the City of Livermore,County of Alameda,State of California 21 B. Mountain Cascade, Inc.,in compliance with the provisions of the 22 Subletting and Subcontracting Fair Practices Act of the Public Contract Code of the j 23 State of California, listed and employed Matamoros Pipeline, Inc.to perform welding on i 24 the 69-inch Northern pipeline. , 25 9. The route of the 694nch Northam pipeline was to be generally parallel to, 26 east of and above a 104nch petroleum products pipeline. 27 10. On or about Tuesday, November 9,2004 IGnder Morgan, Incorporated 28 and 1Gnder Morgan Energy Partners LP owned and operated the 104nch petroleum i COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 2 i 1 products pipeline for purposes of transporting gasoline approximately 60 miles from 2 Concord to San Jose. 3 11. Kinder Morgan, Incorporated is the general partner of Kinder Morgan 4 Energy Partners LP. 5 12. The true names and capacities of Defendants Does 1 through 30 are 6 unknown to Plaintiffs and joined herein by said fictitious names. Plaintiffs are informed 7 and believe and thereon allege that each said Doe Defendant is negligently or 8 otherwise legally responsible in some manner for the events and happening herein 9 described,and negligently or otherwise legally caused the injuries and damages 10 claimed,such that Plaintiffs will amend this complaint to show their true names and it capacities when ascertained. 12 13. Plaintiffs are informed and believe,and thereon allege,that each of the 13 Defendants was,at all times relevant to this action, an agent,servant, employee, 14 partner,joint venturer,and/or alter-ego of the remaining Defendants, and/or that 15 Defendants'advice or encouragement to act operated as moral support and, in doing 16 the things herein alleged,was acting within the course and scope of that relationship. 17 Plaintiffs are further informed and believe,and thereon allege, that each of the 18 Defendants herein gave consent to, ratified,and/or authorized the acts alleged herein, 19 of each of the remaining Defendants,except as may be hereinafter otherwise 20 specifically alleged. 21 14. On or about Tuesday, November 9,2004, at about 1:30 p.m.,gasoline i 22 escaped from the 10-inch petroleum products pipeline. When it ignited and exploded, 23 several construction workers were injured and five eventually died. t i 24 15. Among those who were injured and died was Vctor Javier Rodriguez 25 ("Decedent'),an employee of Matamoros Pipeline, Inc. i 26 16. On or about November 9,2004,plaintiff Juana Lilian Arias was the ' 27 domestic partner of and was dependent upon Victor Javier Rodriguez 28 1 j COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 3 ; 1 17. Plaintiffs Addana Cristina Rodriguez Arias, born September 26,2001, the 2 daughter of Decedent,and Alegadra Stephanie Rodriguez-Arias, born August 22, 3 2003,the daughter of Decedent,are the heirs and successors In Interest of Decedent- 4 18. Plaintiff Juana Lilian Arias, mother of Adriana Cristina Rodriguez Arias 5 and Alegadra Stephanie Rodriguez-Arias, is the duly appointed guardian ad litem of 6 Adrian Crlstina Rodriguez Arias and Alegadra Stephanie Rodriguez-Arias, minors. 7 19. Prior to the death of Decedent, Plaintiffs Adriana Cristina Rodriguez Arias. 8 and Alegadra Stephanie Rodriguez-Arias had the right to receive and were dependent 9 on their father for support and maintenance. 10 20. Prior to the death of Decedent, Plaintiff Alicia Rodriguez,mother of Vidor 11 Javier Rodriguez,was dependent upon him for necessities of life. 12 21. As a legal result of the negligence and/or other conduct of Defendants, 13 and each of them, legally and/or proximately causing death to Decedent, Piainfrffs have 14 sustained injuries,damages, and/or losses includng, but not limited to, loss of love, 15 companionship,comfort, affection,society,solace, moral support, physical assistance, 16 financial support,contributions, and services of Decedent, In a sum to be ascertained 17 at the time of trial. 18 22. As a further and legal result of the negligence and/or other conduct of 19 Defendants,and each of them, legally and/or proximately causing death to Decedent, 20 Plaintiffs have incurred funeral and burial expenses in a sum to be proved at the time of .21 trial,which is the reasonable value of such services. 22 23. The above General Allegations are incorporated by reference into each of. 23 the following causes of action. 24 25 26 27 j 28 I COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 4 1 FIRST,QAUSE OF ACTION 2 (Negligence Per Se) 3 (By Plaintiffs Against Defendants 19nder Morgan, Incorporated; 4 Kinder Morgan Energy Partners LP;and Does 1-20) 5 24. Defendants lender Morgan, Incorporated, l0nder Morgan Energy Partners 6 LP, and Does 1-20 were operators of a subsurface installation within the meaning of 7 Government Code§4216. 8 25. Said Defendants,and each of them,received notification of proposed 9 excavation work in accordance with Government Code§4216.2. 10 26. Said Defendants, and each of them,failed to locate and field mark the 1.1 approximate location which may be affected by the excavation, to the extent and 12 degree of accuracy.that'the information is available either in the records of the operator 13 as determined through standard locating techniques other than excavation, and failed ,ie 14 to advise of the location of the operator's subsurface installations which may be 15 affected by the excavation, in accordance with Government Code§4216.3. 16 SECOND CAUSE OF ACTION 17 (Unfair Competition) 18 (By Plaintiffs Against Defendants Kinder Morgan, incorporated; 19 IGnder Morgan Energy Partners LP; and Does 1 20) 20 27. iQnder Morgan, incorporated is one of the largest midstream energy 21 companies In the country,operating more than 35,000 miles.of natural gas and 22 products pipeline. 23 28. lender Morgan Energy Partners LP is the largest independent 24 owner/operator of products pipelines in the country,transporting more than two million 25 barrels a day of gasoline,jet fuel, and diesel fuel and up to 7.8 billion cubic feet a day 26 of natural gas liquids, through more than ten thousand miles of pipelines, of which- 27 some 3,850 miles are in its Pacific pipeline system. 28 } COMPLAINT FOR PERSONAL IWtJRIES AND WRONGFUL DEATH 5 I 1 29. IQnder Morgan Energy Partners LP Is the nation's largest publicly traded. 2 pipeline limited partnership in the United States in terms of market capitalization. 3 30. 14nder Mongan Energy Partners LP owns a 45°x6 interest in the Cochin 4 Pipeline System,a 1900-mile natural gas liquids pipeline operating between Alberta 5 and Ontario in Canada that transverses through seven states in the United States. 6 31. On July 16,2003, at approximately 5:30 a.m.,the USA portion of the 7 Cochin Pipeline System experienced a rupture and fire at a rural location approximately 8 75 miles east of Fargo, North Dakota. 9 32. On July 30,2003, a IGnder Morgan Energy Partners pipeline broke in a 10 Tucson subdivision. Gasoline sprayed more than fifty feet into the air,saturated five 11 homes being built and contaminated soil and groundwater. 12 33. On April 29,2004, at approximately 7:00 p.m.,a Kinder Morgan Energy 13 Partners pipeline which transports gasoline,jet fuel,and diesel to Chico and 14 Sacramento, California and to Reno, Nevada, experienced a rupture not discovered .15 until April 30,2004,as a result of which approximately 1,000 barrels or 42,000 gallons 16 of diesel spilled into about 250 acres of Suisun Marsh,among the most important 17 wetlands in Northern California. Criticized for the delayed response, a managing agent 18 of Defendants}ender Morgan, Incorporated and lender Morgan Energy Partners LP 19 replied`You can't cry wolf every time.you see an anomaly." 20 34. On November 22,2004,for the second time in as many months,a 21 pipeline that transports gasoline from Colton and Barstow,California into Las Vegas, 22 Nevada experienced a rupture in a rural area near Baker, California. California 23 Highway Patrol officert on nearby Interstate 15 noticed a strong odor and closed the 24 freeway,which led to discovery of a 50-to-60 foot gasoline vapor geyser. 25 35. Defendants IGnder Morgan Incorporated, IGnder Morgan Energy Partners 26 LP, and Does 1-20 were operators of a subsurface installation within the meaning of '27 Government Code 44216. i 28 COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DFJ17H 6 � 1 36. Said Defendants,and each of them, received notification of proposed 2 excavation work in accordance with Government Code§4216.2. 3 37. In 2003,Modem Continental Construction determined that another 4 segment of the petroleum products pipeline was approximately 13 feet from where it 5 was marked by Kinder Morgan,Incorporated, iGnder Morgan Energy Partners LP, and 6 Does 1-20. 7 38. Prior to November 9,2004, Kinder Morgan, Incorporated, Kinder Morgan 8 Energy Partners LP, and Does 120 received notification of proposed excavation work 9 between pipe stations 100+00 and 101+00. 10 39. Said Defendants, and each of them,failed to locate and field mark the 11 approximate location which may be affected by the excavation, to the extent and 12 degree of accuracy that the information is available either in the records of the operator 13 as determined through standard locating techniques other than excavation,failed to 14 advise of the location of the operator's subsurface installations which may be affected 15 by the excavation, in avca-dance with Government Cade§4216.3, and/or failed to 16 monitor the progress of the excavation. 17 40. Defendants IGnder Morgan,Incorporated and Kinder Morgan Energy 18 Partners LP customarily failed to monitor their facilities. 19 41. On account of inaccuracy in the work of marking and locating pipelines, 20 Defendants in advising excavators of the location of the pipelines which may be 21 affected by the excavation made statements and engaged in conduct which was 22 unlawfully deceptive and misleading to members of the public. 23 42. Such activities were a substantial factor in directly causing harm to 24 Decedent and Plaintiffs. 25 43. Such harm to Decedent and Plaintiffs was of the kind that would be F 1 26 anticipated as a result of inaccuracy In the work of, locating,field marking, and advising f . i 27 excavators of the location of petroleum products pipelines transporting gasoline, 28 aviation fuels, and diesel through a residential neighborhood and community. I '• COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 7 1 • 1 44. Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP, and 2' Does 1-20 possessed knowledge and experience in such field of work, and knew or 3 should have known that the work was Ilk*to Involve this risk. 4 45. Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners 5 LP, and Does 1-20 thereby engaged in unfair competition, i.e., in an unlawful, unfair or 6 fraudulent business act or practice within the meaning of Section 17200 of the 7 Business and Professions Coda.. 8 MILD CAUSE OF ACTION 9 (Strict Liability for Ultrahazardous Activities; CACI 460) 10 (By Plaintiffs Against Defendants IGnder Morgan Incorporated; it Kinder Morgan Energy Partners LP; and Does 1-20) 12 46. Wrider Morgan, Incorporated is one of the largest midstream energy 13 companies in the country,operating more than 35,000 miles of natural gas and 14 products pipeline.. i5 47. Kinder Morgan Energy Partners LP is the largest independent 16 owner/operator of products pipelines in the country,transporting more than two million i7 barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day 18 of natural gas liquids,through more than ten thousand miles of pipelines, of which 19 some 3,850 miles are in its Pack pipeline system.. 20 48. Kinder Morgan Energy Partners LP is the nation's largest publicly traded .21 pipeline limited partnership in the United States in terms of market capitalization. 22 49. Defendants Kinder Morgan Incorporated, IGnder Morgan Energy Partners 23 LP, and Does 1-20 were engaged In activities Including owning, operating, locating, '? 24 field marking, and monitoring excavation near petroleum products pipelines 25 transporting gasoline,jet fuel,diesel fuel and natural gas liquids. f 26 50. Such activities create the existence of a high degree of risk of harm to 27 persons, land and chattels of others, create the likelihood that harm that results from it 28 will be great, and are inappropriate to the surrounding residential neighborhoods, 1 i COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH g f • I i I schools, and communities where it was carried on, such that their value to such 2 communities is outweighed by their dangerous attributes. 3 51. Such activities were a substantial factor in causing harm to Decedent and 4 Plaintiffs. 5 52. Such harm to Decedent and Plaintiffs was of the kind that would be 6 anticipated as a result of the risk created by operating, locating,field marking, and 7 monitoring petroleum products pipelines transporting gasoline,jet fuel, diesel fuel, and 8 natural gas liquids through a residential neighborhood and community. 9 FOURTH CAUSE OF ACTION 10 (Peculiar Risk Doctrine; CAC 3708) 11 (By Plaintiffs Against Defendants IGnder Morgan Incorporated; 12 I(lnder Morgan Energy Partners LP; and Does 1-20) 13 53. The work of locating, marking, and monitoring excavation near petroleum 14 product pipelines in residential neighborhoods,and of advising excavators of the 15 location of such pipelines which may be affected by the excavation, Is likely to involve a 16 special risk of hann'to others. 17 54. lender Morgan, Incorporated, lender Morgan Energy Partners LP, and 18 Does 1-20 possessed knowledge and experience in such field of work,and knew or 19 should have known that the work was likely to involve this risk. 20 55. An Independent contractor to'which Kinder Morgan Incorporated, lender 21 Morgan Energy Partners-LP,and Does 1-20 delegated such work failed to use 22 reasonable care to take spec safety measures appropriate to the danger to avoid 23 this risk. 24 56. Said Defendants, and each of them, received notification of proposed i 25 excavation work in accordance with Government Code§4216.2. 26 57; Said Defendants,and each of them, failed to locate and field mark the 27 approximate location which may be affected by the excavation, to the extent and 28 degree of accuracy that the Information is available either in the records of the operator 1 E COMPLAINT FOR PERSONAL.INJURIES AND WRONGFUL DEATH 9 i I as determined through standard locating techniques other than excavation, and failed 2 to advise of the location of the operator's subsurface installations which may be 3 affected by the excavation, in accordance with Government Code§4216.3. 4 58. Such failure of such independent contractor was a cause of harm to 5 Decedent and Plaintiffs. 6 FIFTH CAUSE OF ACTION 7 (Negligence Per Se) 8 (By Plaintiffs Against Defendant Mountain Cascade, Inc. and Does 20-30) 9 59. Defendant Mountain Cascade,Inc.and Does 20-30 and each of them was 10 an"excavator"engaged in an`excavation'within the meaning of Government.Code 11 §4216. 12 60. Defendant Mountain Cascade, Inc,and Does 20-30 and each of them 13 failed to contact the appropriate regional notification center at least two working days 14 but not more than fourteen calendar days prior to conducting an excavation in an area 15 which is known or reasonably should be known to contain subsurface installations,in 16 violation of Government Code§4216.2. 17 SIXTH CAUSE OF ACTION 18 (Negligence Per Se) 19 (By Plaintiffs Against Defendants Mountain Cascade, Inc. and Does 20-30) 20 61. Defendant Mountain Cascade, Inc.and Does 20-30 and each of them was -21 an'excavator"engaged in an'excavation'within the meaning of Government Code 22- §4216.. 23 62. Defendant Mountain Cascade, Ina and Does 20-30 and each of them 24 failed to detennine the exact location of subsurface installations in conflict with the 25 excavation by excavating with hand tools within the area of the approximate location of ! s 26 subsurface installations as determined by field marking before using power-operated or 27. power-driven excavating or boring equipment in violation of Government Code 28 §4216.4. t COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 10 i i t I SEVENTH CAUSE OF ACTION 2 (Premises Liability; CACI 1003) 3 (By Plaintiffs Against Defendants Mountain Cascade, Inc. and Does 20-30) 4 63. Defendants Mountain Cascade, Inc.and Does 20-30 occupied and 5 controlled premises in which a 14-foot deep trench was being excavated. 6 64. The property contained a hidden condition or conditions which created an 7 unreasonable risk of harm. 8 65. The occupier who controlled the property knew or should have known 9 about such condition or conditions. 10 66. The occupier who controlled the property failed to make reasonable 11 inspections to discover such condition or conditions. 12 67. The occupier who controlled the property failed to take reasonable 13 precautions to protect against the harm, or to give adequate warning to those likely to 14 be injured by the harm. 15 68. Defendants Mountain Cascade, Ina and Does 20-30 and each of them 16 failed to verify location of 10'•petroleum lines prior to any construction between pipe 17 stations 100+00 and 101+00. 18 EIGHTH CAUSE OF ACTION 19 (Premises Liability;CACI 1009) 20 (By Plaintiffs Against Defendants Mountain Cascade, Inc. and Does 20-30) 21 69. Defendants Mountain Cascade, Inc, and Does 20-30 occupied and 22 controlled premises in which a 14-foot deep trench was being excavated. .. 23 70. An unsafe condition was created by or known to Mountain Cascade, Inc. 24 and Does 2030 and was not a known condition that Plaintiffs' Decedent's employer 25 Matamoros Welding was hired to correct or repair. 26 71. Mountain Cascade, Ina and Does 20-30 retained control over safety 27 conditions at the worksite and through their actions'or failure to take actions they 28 contributed to death of flecedent and Plaintiffs'Injuries. "le ' COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 11 2 r I NINTH-CAUSE OF ACTION 2 (Presumption of Negligence) 3 (By Plaintiffs Against Al Defendants) 4 72. Such a fire and explosion Is the kind of event which ordinarily does not 5 happen unless someone is negligent. 6 73. Such fire and explosion was caused-by an agency or instrumentality in 7 the exclusive control of the Defendants and over which the Defendants had the S exclusive right of control. 9 74. Such fire and explosion was not due to any voluntary action or 10 contribution on the part of the Plaintiffs'Decedent which was the cause of Plaintiffs' 11 Decedent's injury and death.. 12 TENTH CAUSE OF ACTION 13 (Negligent Undertaking) 14 (By Plaintiffs Against All Defendants) 15 75. At all times herein mentioned Defendanfs,and each of them,undertook . 16 for consideration to render services, perform acts, and/or labor and/or safety 17 inspections in the course of which said Defendants knew or reasonably should have is knownprecautions were necessary for the protection of others including Decedent 19 working at said premises. 20 76. Defendants,and each of them, negligently rendered services, performed 21 acts,failed to furnish labor and reasonable safety inspections, and otherwise failed to 22. exercise reasonable care in said undertaking. 23 77. Defendants Kinder Morgan Incorporated, Mnder Morgan Energy Partners 24 LP, and Does 1-20 were operators of a subsurface installation within the meaning of 25 Government Code§4216 who received notification of proposed excavation work in 26 accordance with Government Code§4216.2 and thereafter undertook but failed to 27 locate and field mark the approximate location which may be affected by the 28 excavation, to the extent and degree of accuracy that the information Is available either COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 12 i I I in the records of the operator as determined through standard locating techniques 2 other than excavation, and failed to advise of the location of the operator's subsurface 3 Installations which may be affected by the excavation, in accordance with Government 4 Code§4216.3. 5 78. Defendants Mountain Cascade, Inc, and Does 20-30 and each of them 6 was an"excavator'engaged in an'excavation'within the meaning of Government 7 Code§4216,and undertook but failed to determine the exact location of subsurface . 8 Installations in conflict with the excavation by excavating with hand tools within the area . 9 of the approximate location of subsurface installations as determined by field marking 10' before using power-operated or power-driven excavating or boring equipment in . 11 violation of Government Code§4216.4. 12 79. Defendants, and each of them,thereby increased the risk of harm to 13 others, Including Decedent,who were foreseeably upon said premises. 14 ELEVENTH CAUSE OF ACTION 15 (Intentional Misrepresentation Causing Physical Harm by Plaintiff Juana Lilian Arias as .16 Guardian ad Lltem for the Successors in Interest of Victor Rodriguez, Deceased; 17 Against Defendants Kinder Morgan, Incorporated; Kinder Morgan Energy Partners LP; 18 Mountain Cascade, Inc.;and Does 1-30) 19 80. Defendants,and each of them,knew that construction workers were 20 excavating a trench and building a 60-inch pipeline to transport water from Walnut 21 Creek to San Ramon, in accordance with a written general contract between Fast Bay 22 Municipal Utility District and Mountain Cascade, Inc. 23 81. Defendants,and each of them,knew that the route of the 694nch water 24 pipeline was to be generally parallel to, east of and above a 10-inch petroleum 25 products pipeline owned and operated by Kinder Morgan, Incorporated andfor Kinder 26 Morgan Energy Partners LP for transporting gasoline under high pressure 27 approximately 60 miles from Concord to San Jose. 28 COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 13 1 82. Defendants Kinder Morgan, incorpgrated,Kinder Morgan Energy Partners 2 LP,and Does 1-20 were operators of a subsurface Installation within the meaning of 3 Government Code§4216. 4 83. Kinder Morgan, Incorporated is the general partner of Kinder Morgan 5 Energy Partners LP. 6 . 84. Kinder Morgan Energy Partners LP Is the largest independent 7 ownerloperator of products pipelines in the country,transporting more than two million 8 barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day 9 of natural gas liquids,through more than ten thousand miles of pipelines,of which 10 some 3,850 miles are in its Pacific pipeline system. 11 85. lender Morgan Energy Partners LP is the nation's largest publicly traded 12 pipeline limited partnership in the United States in terns of market capitalization. 13 86. Defendants,and each of them,knew that lQnder Morgan Energy Partners 14 LP owns a 45%interest in the Cochin Pipeline System, a 1900-mile natural gas liquids 15 pipeline operating between Alberta and Ontario in Canada that transverses through 16 seven states in the United States. 17 87. Defendants,and each of them,knew that on July 16,2003, at 18 approximately 6:30 a.m.,the USA portion of the Cochin Pipeline System experienced a 19 rupture and fire at a rural location.appro)dmately 75 miles east of Fargo, North Dakota. 20 Sk On July 30,2003,a lander Morgan Energy Partners pipeline broke in a 21 Tucson subdivision. Gasoline sprayed more than fifty feet into the air, saturated five 22 homes being built, and contaminated soil and groundwater. 23 89. On April 29,2004,at approximately 7:00 p.m.,.a Kinder Morgan Energy 24 Partners pipeline which transports gasoline,jet fuel,and diesel to Chico and 25 Sacramento,Callfomia and to Reno, Nevada,experienced a rupture not discovered 26 until April 30,2004, as a result of which approximately 1,000 barrels or 42,000 gallons 27 of diesel spilled into about 250 acres of Suisun Marsh, among the most important 28 wetlands in Northern Califomia. Criticized for the delayed response, a managing agent COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 14 I of Defendants lander Morgan,Incorporated and Kinder Morgan Energy Partners LP 2 replied"You can't cry wolf every time you see an anomaly.' 3 90. On November 22,2004,for the second time in as many months, a 4 pipellne.that transports gasoline from Colton and Barstow, California into Las Vegas, 5 Nevada experienced a rupture in a rural area near Baker,California. Califomia 6 Highway Patrol officers on nearby Interstate 15 noticed a strong odor and closed the 7 freeway,which led to discovery of a 5040-60 foot gasoline vapor geyser. 8 91.. Defendants, and each of them,knew that East Bay Municipal Utility 9 District's contract with its general contractor required compliance with all applicable 10 statutes and occupational and health standards, rules, regulations,and orders. i l 92. Defendants, and each of them,knew that to guard against extreme risk of 12 Injury to persons and property, East Bay Municipal Utility District's contract with its 13 general contractor specified that-work along South Broadway is adjacent to a high 14 pressure petroleum pipeline owned.by Wrider Morgan, Incorporated;that construction 15 activities should be coordinated with Larry Hoster, Manager Pipeline Maintenance, 16 Kinder Morgan, Incorporated;that the contractor shall notify all owners of utilities when 17 his work is in progrdss;that the contractor is responsible for having all underground 18 Willies and structures located in advance of excavation;that the contractor notify all 19 known owners of underground utilities in the area of proposed work and Underground 20 Service Alert, 800-642-2444 at least two working days before the start of actual 21 excavation;that the contractor shall determine the exact iocation•of existing utilities 22. whose approximate locations are shown on drawings;that contract drawings depicted a 23 bend in the 10"petroleum pipeline between pipe stations 100+00 and 101+00;that the 24 contractor shall probe carefully to determine the exact location of utility, and hand 25 excavate when necessary to avoid damages;that the contractor shall verify location of 26 1a'petroleum lines prior to any construction between pipe stations 100+00 and 27- 101+00; and that hand excavation is required within 24"on either side of the exterior 28 surface of any underground utility. coMpk. w FoR PERsomAL Iwt.IRIES AND wRolvcrcn.DEATH 16 1 93. Said Defendants, and each of them,were aware of the responsibility to l 2 provide notification of proposed excavation work In accordance with Government Code I 3 §4216.2, to locate and field mark subsurface installations which may be affected in 4 accordance with Government Code§4216.3,and to determine the exact location of 5 subsurface installations by hand excavating in accordance with Government Code 6 §4216.4. 7 94. Defendants,and each of them,knew that operating, locating,field 8 marking and.excavating new petroleum products pipelines transporting gasoline,jet 9 and diesel fuels created the existence of a special,high degree of risk of harm to 10 persons,land and chattels of others,knew the likelihood that harm that results from it 11 will be great,and knew the petroleum products pipeline was inappropriate to the 12 surrounding residential neighborhood, school,and community where it was located. 13 95. Defendants, and each of them,knew that Matamoros Pipeline, Inc., a 14 welding subcontractor to East Bay Municipal Utility District's general contractor, and its 15 employees would rely for their safety upon defendant's compliance with statutory, 16 regulatory, and contract terms Including but not limited to locating, field marking, and 17 hand excavating near the petroleum products pipeline. I8 96. Defendants,and each of them,knew that East Bay Municipal Utility 19 District's general contract was initially awarded to Modem Continental Construction of 20 Cambridge,Massachusetts. 21 97. Defendants,and each of them,knew that in 2003 Modem Continental 22 Construction determined that a segment of the petroleum products pipeline was 23 approximately 13 feet from where it was marked by lGnder Morgan, Incorporated, 24 Kinder Morgan Energy Partners LP and Does 1-20. 25 98. Defendants,and each of them,knew that in May 2004 East Bay Municipal 26 Utility District terminated its general contact with Modem Continental in part for working 27 too slowly. 28 ` COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEA71i 16 1 99. Defendants,and each of them, knew that prior to November 9,2004, 2 Modem Continental Construction objected to termination of Its general contract with 3 East Bay Municipal utility District,expressed concern about the petroleum products 4 pipeline along South Broadway,filed suit for breach of contract,and alleged its delays 5 were due in part to problems with how well the 10-inch petroleum products pipeline was 6 located on general contract documents and plans. 7 100. Defendants,and each of them,knew that prior to November 9,2004,East 8 Bay Municipal Utility District awarded its general contract to Mountain Cascade, Inc., a 9 corporation or other business entity organized pursuant to the laws of the State of 10 Californba with its principal place of business in the City of Livermore, County of 11 Alameda,State of California. 12 101. Defendants Mountain Cascade, Inc. and Does 20-30, and each of them, 13 was an"excavator"engaged in an"excavation"within the meaning of Govemment 14 Code§4216. 15 102. Defendants, and each of them, knew that Mountain Cascade, Inc. . 16 advertised that"we routinely take on rough projects that our competitors shy away from •17 and tum them Into profit." 18 103. Defendants,and each of them,knew that Mountain Cascade,Inc.has had 19 two deaths in the last five years,the most recent being in March 2004 when a worker 20 was crushed while unloading pipe. 21 104. Defendants,and each of them,made to East Bay Municipal Utility District, 22 Deoedenrs employer Matamoros Pipeline, Ina, Decedent's coworkers, and Decedent, 23 representations of material fact as follows. 24 a. Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners 25 LP,and Does 1-20 placed field marking devices so as to represent the location of their 26 petroleum products pipeline; 27 b. Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners 1 28 LP, and Does 120 stated that field marking devices accurately represented the . s COM PLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 17 i i .l location of their petroleum products pipeline,that excavators need only follow the field 2 marking devices to avoid conflict with their petroleum products pipeline, and that 3 additional locating or monitoring by said Defendants was unnecessary; 4 a Defendants Mountain Cascade, Inc,and Does 20.30 by using 5 power-operated or power-driven excavating or boring equipment and otherwise, stated 6 they had by excavating with hand tools determined the exact location of the petroleum 7 products pipeline. 9 105. These representations were in fact false,and the truth was as follows: 9 a. The petroleum products pipeline was not where Kinder Morgan, _10 Incorporated, tender Morgan Energy Partners LP,and Does 1 20 represented it to be; 11 b. t4nder Morgan, irtcbrporated, tender Morgan Energy Partners LP, and 12 Does 1-20, and each of them,had failed to locate and field mark the approximate 13 location which may be affected by the excavation, to the extent and degree of accuracy 14, that.the information is available either in their own records or through standard locating . 15 techniques other than excavation; 16 a Defendants, and each of them,for their financial benefit had knowingly 17 failed to employ personnel and/or employed unfit personnel to locate and mark the 18 petroleum products pipeline; 19 d. The exact location of the petroleum products pipeline, not where field 20 marking indicated it to be,had not been determined by excavating with hand tools; and 21 e. The exact location of the petroleum products pipeline, not where field 22 marking indicated it to be,was determinable from records,drawings, and contract 23. documents in the possession of Defendants Kinder Morgan, Incorporated, Kinder 24 Morgan Energy Partners LP,Mountain Cascade, Inc.and Does 1-30. 25 f. The records,drawings,and contract documents M the possession of 26 Defendants depicted a bend in the 10"petroleum pipeline between pipe stations 27 100+00 and 101+00. 28. +,� COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 18 I 106. When Defendants, and each of them,made the above representations, 2 said Defendants knew them to be false,had no reasonable ground for believing the 3 representations were true, and knew they had not the knowledge which they professed. 4 107. Defendants, and each of them, made the representations with the intent 5 that the representations be communicated to Decedent's employer, Decedent's 6 coworkers, and Decedent,that the representations induce Decedent's employer, 7 Decedent's coworkers,and Decedent to work and act in justifiable reliance upon the 8 representations,which actions Defendants knew Involved an unreasonable risk of 9 physical hann to Decedent's coworkers and Decedent 10 106. Decedent's employer, Decedents coworkers and Decedent received 11 Defendants'misrepresentations,and justifiably relied upon them. 12 109. Defendants,and each of them, in failing to notify,failing to mark even the 13 approximate location,and failing to determine the exact location of the petroleum 14 products pipeline, before excavating with power-operated or power-driven excavating 15 or boring equipment,acted intentionally and despicably and with willful and conscious 16 disregard of the safety of workers in the vicinity. 17 110. Defendants lander Morgan, Incorporated, Kinder Morgan Energy Partners 18 LP,Mountain Cascade, Ina:,and Does 1.30 had advance knowledge of the unfitness of 19 agents and employees, including but not limited to those who placed field marking 20 devices,those who represented that excavators need only follow field marking devices 21 to avoid conflict with the petroleum products pipeline, and those who failed to 22 determine its exact location from records,drawings,contract documents in their 23 possession,or excavation with hand tools, and employed them with conscious 24 disregard for the rights and safety of others. 25 111. Defendants Kinder Morgan, incorporated, K'mder Morgan Energy Partners 26 LP, Mountain Cascade, Inc.,and Does 1-30,and each of them,through officers, 27 directors and/or managing agents thereby authorized said acts of employees and 28 thereafter ratified said acts by continuing to employ them,by failure to criticize, '.. COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL.DEATH 19 I censure,terminate,suspend or take other remedial action against them,by interfering 2 with attempts by regulatory.authorities including but not limited to Cal-OSHA to 3 interview them, and by providing them with legal counsel so as to defend their conduct. 4 112. The above-deWibed conduct of Defendants ICnder Morgan, 5 incorporated, Kinder Morgan Energy Partners,LP, Mountain Cascade,Inc. and Dies 6 .1.30, and each of them,which includes Intentional disregard of safety standards and 7 acting in a manner calculated to Interfere with or deceive regulatory authorities,for 8 Defendants'financial benefit,was despicable and carried on with a willful and 9 conscious disregard for the rights and safely of others. 10 113. The above-described conduct of Defendants Wnder Morgan, 11 Incorporated,Kinder Morgan Energy Partners,LP,Mountain Cascade, Inc. and Does 12 1-30, and each of them,which includes intentional disregard of safety standards and 13 acting in a manner calculated to stonewall or deceive regulatory authorities,for 14 Defendants'financial benefit, subjected persons to cruet and unjust hardship in 15 conscious disregard for such persons'rights. 16 114. Asa proximate result of said conduct,said reliance thereon, and of the 17 injuries sustained, Plaintiffs are entitled to the protection of Civil Code§3294 and to an 18 award of exemplary and punitive damages in excess of the jurisdictional minimum of 19 this Court. 20 PRAYER FOR RELIEF 21 WHEREFORE, Plaintiffs pray for Judgment against Defendants,and each of 22 them,as follows: 23 1. For general damages in excess of the jurisdictional minimum of this Court; 24 2. For funeral,burial and incidental expenses according to prof; 25 3. For loss of support and related economic losses according to proof, 26 4. For the Second Cause of Action only,to disgorge profits from unlawful 27 business acts or practices; 28 i ! COMPLAIN'FOR PERSONAL.INJURIES AND WRONGFUL.DEATH 20 4 1 5. For the Eleventh Cause of Action'only,for damages for the sake of 2 example and by way of punishing the Defendants named therein, pursuant to Civil 3 Code§3294, 4 6. For prejudgment interest and attorney's fees according to law, 5 7. For costs of this suit;and 6 8. For such other and further relief as is proper. 7 DATED: January,-2005 BOXER&GERSON, LLP 8 By.9 JOHN M.ANT ON Attorneys for Plaintiffs 10 . 11 12 13 14 35 16 17 18 19 28 21 22 23 24 25 26 27 28 i COMPLAIN'FOR PERSONAL INJURIES AND WRONGFUL DEATH 21 • • � ��� vii '3672164' 1 JOHN M.ANTON, State Bar No.5488E WILLIAM E.LOMBARDINI,State Bar No. 191464 • 2 BOXER&GERSON,LLP 3 Frank Ogawa Plaza 3 Rotunda Building, ding, Suite 500 Oakland,California 94612 AI.AMEDA COUNTY 4 Telephone: 510 835-8870 Facsimile: 510 836-0416 5 JAN 2 6 200 ANTONIO R 17,State Bar No. 1&%59 a SUPEA, A couFrr 6 .CONCEPCION E.LOZANO-BATISTA, State Bar No.22722_77 WEINBERG, ROGER&ROSENFELD, P.C. 7 A Professional Corporation 180 Grand Avenue,Suite 1400 . 8 Oakland,California 94612-3752 Telephone; 510 839-6600 9 Facsimile: 510 891-0400 . 10 Attorneys for Plaintiffs. II SUPERIOR COURT OF THE STATE OF CALIFORNIA. - 12 COUNTY OF ALAMEDA 13 ���� � � gg;�. MARILU ANGELES, individually and as CASE NO. 14 guardian ad)item for METM YAREL HERNANDEZ and EMILIN COMPLAINT FOR PERSONAL 15 HERNANDEZ, minors, INJURIES AND WRONGFUL DEATH 16 Plaintiffs, 17 vs. 18 KINDER MORGAN, INCORPORATED; KINDER MORGAN ENERGY 19 PARTNERS LP;MOUNTAIN ELOS 1-30; and 20 CASCADE RRNA[DEZ 21 Defendants. 22 23 24 25 26 27 28 COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 1 t 1 Plaintiffs,by and through their attorneys Boxer&Gerson, LLP,and Weinberg, 2 Roger&Rosenfeld, P.C.,allege as follows: 3 GENERAL ALLEGATIONS 4 1. Defendant Mountain Cascade, Inc. is a corporation organized under and 5 by virtue of the laws of the State of California with its principal place of business in the 6 County of Alameda- 7 .2. The events in issue occurred during the performance of a contract 8 entered into In the County of Alameda. 9 3. East Bay Municipal Utility District is a publicly-owned utility formed under 10 the Municipal Utility District laws of the State of California with its headquarters in the 11 City of Oakland,County of Alameda. 12 4. The events In issue occurred on or about Tuesday, November 9, 2004, in 13 and adjacent to a 1446ot deep trench within the South Broadway Easement in a 14 residential neighborhood between Newell Avenue and Rudgear Road, In the City of 15 Walnut Creek, County of Contra Costa,State of California. 16 5. In and adjacent to the 14-foot trench,construction workers were building 17 a 694nch water pipeline,known as the Northem Pipeline,to transport water from 18 Walnut Creek to San Ramon. 19 6. East Bay Municipal Utility District's general contract was initially awarded .. 20 on or about September 24,2002,to Modem Continental Construction of Cambridge, 21 Massachusetts. On or about May 2%2004, East Bay Municipal Utility District issued a 22 "Notice of Default Termination'to Modem Continental Construction. 23 7. On or about August 10,2004, East Bay Municipal Utility District awarded 24 its general contract to Mountain Cascade, Inc., a corporation organized and existing 25 under and by virtue of the laws of the State of Cai'rfomia,with its principal place of 26 business in the City of Livermore,County of Alameda, State of California. 27 8. Mountain Cascade, Ina, In compliance with the provisions of the 28 Subletting and Subcontracting Fair Practices Act of the Public Contract Code of the COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 2 i - I 1. I State of California, listed and employed Matamoros Pipeline, Ina to perform welding on 2 the 69-inch Northern pipeline. 3 9. The route of the 69-Inch Northern pipeline was to be generally parallel to, 4 east of and above a 104nch petroleum products pipeline. . 5 10. On or about Tuesday, November 9,2004 IQnder Morgan, Incorporated 6 and I(Inder Morgan Energy Partners LP owned and operated the 10-inch petroleum 7 products pipeline for purposes of transporting gasoline approximately 60 miles from 8 .Concord to San Jose. 9 11. Kinder Morgan, Incorporated is the general partner of 10nder Morgan 10 Energy Partners LP. 11 12. The true names and capacities of Defendants Does 1 through 30 are 12 unknown to Plaintiffs and joined herein by said fictitious names. Plaintiffs are informed 13 and believe and thereon allege that each said Doe Defendant is negligently or 14 otherwise legally responsible in some manner for the events and happening herein 15 described, and negligently or otherwise.legally caused the injuries and damages 16 claimed, such that plaintiff will amend this complaint to show their true names and 17 capacities when ascertained. 18 13. Plaintiffs are informed and believe,and thereon allege,that each of the 19 Defendants was,at all times relevant to this action,an agent,servant, employee, 20 partner,joint venturer, andfor alter-ego of the remaining Defendants and/or that 21 Defendants'advice or encouragement to act operated as moral support and,In doing 22 the things herein alleged,was acting within the course and scope of that relationship. 23 Plaintiffs are further informed and believe,and thereon allege, that each of the 24 Defendants herein gave consent to,ratified,andfor authorized the acts alleged herein, 25 of each of the remaining Defendants,except as may be hereinafter otherwise 26 specifically alleged 27 28 COMPLAINT FOR PERSONAL INJURIES AIM WRONGFUL DEATH 3 1 14. On or about Tuesday,November 9,2004,at about 1:30 p.m.,gasoline 2 escaped from the 10-inch petroleum products pipeline. When it ignited and exploded 3 several construction workers were IrJured and five eventually,died. 4 15. Among those who were injured and died was Israel Hernandez 5 (°Decedent"),an employee of Matamoros Pipeline, Inc. 6 16. On or about November 9,2004, plaintiff Marilu Angeles was the domestic 7 partner of and was dependent upon Israel Hernandez 8 17. Plaintiffs Metz!Yarel Hernandez, born January 16,2001,the daughter'of 9 'Decedent and Emilin Hernandez,born January 12,2003,the daughter of Decedent, .10 and Defendant Mariel Harnandez,born on or about 1987,the daughter of Decedent, 11 are the heirs and successors In Interest of Decedent. 12 18. Plaintiff Marilu Angeles,mother of Metz!Yarel Hernandez and Emilin 13 Hernandez, is the duly appointed guardian ad IiEem of Metzi Yarel Hernandez and 14 Emilin HemandeA minors. 15 19. Prior to the death of Decedent,Plaintiffs Metz!Yaret Hernandez and 16 Emilin Hernandez had the right to receive and were dependent on their father for . 17 support and maintenance. 18 20. As a legal result of the negligence and/or other conduct.of Defendants, 19 .and each of them, legally andfor proximately causing death to Decedent,Plaintiff's have 20 sustained injuries, damages,and/or losses including,but not limited to,loss of love, 21 companionship,comfort,affection,society, solace,moral support,physical assistance, 22 financial support,contributions,and services of Decedent, In a sum to be ascertained 23 at the time of trial. 24 21. As a further and legal result of the negligence andfor other conduct of 25 Defendants, and each of them, legally and/or proximately causing death to Decedent, 26 Plaintiffs have incurred funeral and burial expenses in a sum to be proved at the time of 27 trial,which is the reasonable value of such services. 28 COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL.DEATH 4 1 22. The above General Allegations are incorporated by reference Into each of 2 the following causes of giction. 3 FIRST CAUSE OF A010N 4 (Negligence Per Se) 5 (By Plaintiffs Against Defendants Kinder Morgan, Incorporated; 6 Kinder Morgan Energy Partners LP; and Does 1-20) 7 23. Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners 9 LP,and Does 1-20 were operators of a subsurface Installation within the meaning of 9 Government Code§4216. 10 24. Said Defendants,and each of them,received notification of proposed 11 excavation work in accordance with Government Code§42162. 12. 25.- Said Defendants,and.each of them,failed to locate and field mark the 13 approximate location which may be affected by the excavation,to the extent and 14 degree of accuracy that the information is available either In the records of the operator 15 as determined through standard locating techniques other than excavation,and failed 16 to advise of the location of the operator's subsurface installations which may be 17 affected by the excavation, in accordance with Government Code§4216.3. 18 SECOND CAUSE OF ACTION 19 (Unfair Competition) 20 (By Plaintiffs Against Defendants Kinder Morgan, Incorporated; 21 Kinder Morgan Energy Partners LP;and Does 1-20) 22 26. Kinder Morgan, Incorporated Is one of the largest midstream energy 23 companies In the country, operating more than 35,000 miles of natural gas and 24 products pipeline. 25 27. Kinder Morgan Energy Partners LP Is the largest independent 26 ownerloperator of products pipelines In the country,transporting more than two million 27 barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day 28 COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 5 I of natural gas liquids,through more than.ten thousand miles of pipelines,of which I 2 some 3,850 miles are In its Pacific pipeline system. 3 28. Kinder Morgan Energy Partners LP Is the nation's largest publicly traded 4 pipeline limited partnership in the United States in temps of market capitalization. 5 29. Kinder Morgan Energy Partners LP owns a 45%interest in the Cochin 6 Pipeline System,a 1900-mile natural gas liquids pipeline operating between Alberta 7 and Ontario in Canada that (transverses through seven states in the United States. 8 30. On July.16,2003,at approximately 5:30 a.m.,the USA portion of the 9 Cochin Pipeline System experienced a rupture and fire at a rural-location approximately i 10 75 miles east of Fargo, North Dakota i 11 .31. On July 30,2003,a Kinder Morgan Energy Partners pipeline broke in a 12 Tucson subdivision. Gasoline sprayed more than fdty feet into the air, saturated five 13 homes being built,and contaminated soil and groundwater. 14 32. On April 29,20,04, at apprcodmateiy 7:00 p.m.,a Kinder Morgan Energy 15 Partners pipeline which transports gasoline,Jet fuel,and diesel to Chico and .16 Sacramento,California and to Reno, Nevada,experienced a rupture not discovered 17 until April 30,2004, as a result of which approximately 1,000 barrels or.42,000 gallons i 18 of diesel spilled into about 250 acres of Suisun Marsh,among the most lmp xtard 19 wetlands In Northern California. Criticized for the delayed response, a managing agent 20 of Defendants Kinder Wigan, Incorporated and Kinder Morgan Energy Partners LP' 21 replied"You can't cry wolf every time you see an anomaly.' 22 33. On November 22,2004;for the second time in as many months,a i - 23 pipeline that transports gasoline from Colton and Barstow,California into Las Vegas, 24 Nevada experienced a rupture in a Waal area near Baker,California. California i 25 Highway Patrol officers on nearby interstate 15 noticed a strong odor and closed the 26 freeway,which led to discovery of a 504o-80 foot gasoline vapor geyser. 27 28 COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH e 1 34. Defendants Kinder Morgan Incorporated, Kinder Morgan Energy Partners 2 LP,and Does 120 were operators of a subsurface installation within the meaning of 3 Government Code§4216. 4 35. Said Defendants, and each of them,received notification of proposed S excavation work in accordance with Government Code§4216.2. 6 36. . In 2003,Modem Continental Construction determined that another 7 segment of the petroleum products pipeline was approximately 13 feet from where it 8 was marked by Kinder Morgan, I rated,'K4nder Morgan Energy Partners LP,and 9 Does 120. 10 37. Prior to November 9,2004, Kinder Mogan, Incorporated, Kinder Morgan 11 Energy Partners LP, and Does 120 received notification of proposed excavation work 12 between pipe stations 100+00 and 101+00. 13 38. Said Defendants,and each of them,failed to locate and field mark the 14 approximate location which may be affected by the excavation,to the extent and 15 degree of accuracy that the information is available either in the records of the operator 16 as determined through standard locating techniques other than excavation,failed to 17 advise of the location of the operator's subsurface installations which may be affected 18 by the excavation,in accordance with Government Code§4216.3,and/or failed to 19 monitor the progress of the excavation. 20 39. Defendants Kinder Morgan, Incorporated and Kinder Morgan Energy 21 Partners LP customarily failed to monitor their Wlities. 22 40. On account of Inaccuracy in the work of marking and locating pipelines, 23 Defendants in advising excavators of the location of the pipelines which may be. 24 affected by the excavation made statements and engaged in conduct which was 25 unlawfully deceptive and misleading to members of the public. 26 41. Such activities were a substantial factor In directly causing harm to 27 Decedent and Plaintiffs. 28 COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 7 1 42. Such harm to Decedent and Plaintiffs was of the kind that would be 2 anticipated as a result of inaccuracy In the work of, locating,field marking, and advising 3 excavators of the location of petroleum products pipelines transporting gasoline, 4 aviation fuels, and diesel through a residential neighborhood and community. 5 43. Iander Morgan, Incorporated, Kinder Morgan Energy Partners LP, and 6 Does 1-20 possessed knowledge and experience in such field of work, and knew or 7 should have known that the work was likely to Involve this risk. 8 44. Defendants lander Morgan Incorporated, Kinder Morgan Energy Partners 9 LP, and Does 1-20 thereby engaged In unfair competition, i.e., in an unlawful,unfair or 10 fraudulent business act or practice within the meaning of Section 17200 of the 11 Business and Professions Code. 12 THIRD CAUSE OF ACTION 13 (Strict Liability for Ultrahazardous Activities;CACI 460). " 14 (By Plaintiffs Against Defendants lander Morgan Incorporated; 15 I(inder Morgan Energy Partners LP;and Does 1-20) 16 45. lander Morgan, Incorporated is one of the largest midstream energy. 17 companies in the country,operating more than 35,000 miles of natural gas and 18 products pipeline. 19 46. !Cinder Morgan Energy Partners LP is the largest independent 20 owner/operator of products pipelines in the country,transporting more than two million 21 barrels a day of gasoline,jet fuel, and diesel fuel and up to 7.8 billion cubic feet a day 22 of natural gas liquids,through more than ten thousand miles of pipelines, of which 23 some 3,850 miles are in Its Pacific pipeline system. 24 47. Iander Morgan Energy Partners LP is the nation's largest publicly traded 25. pipeline limited partnership in the United States in terms of market capitalization. 26 48. Defendants Kinder Morgan Incorporated;lander Morgan Energy Partners 27 LP, and Does 120 were engaged In activities including owning, operating, locating, 28 COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL bFJATH 8 I field marking,and monitoring excavation near petroleum products pipelines 2 transporting.gasoline;jet fuel,diesel fuel and natural gas liquids. 3 49. Such activities create the existence of a high degree of risk of harm to 4 persons, land and chattels of others,create the likelihood that harm that results from it S will be great, and are inappropriate to the surrounding residential neighbortwods, 6 schools,and communities where it was carried on, such that their value to such 7 communities is outweighed by their dangerous attributes. 8 50. Such activities were a substantial factor in causing harm to Decedent and 9 Plaintiffs. 10 51. Such harm to Decedent and Plaintiffs was of the kind that would be 11 anticipated as a result of the risk created by operating, locating,field marking, and 12 monitoring petroleum products pipelines transporting gasoline,jet fuel,diesel fuel,and 13 natural gas liquids through a residential neighborhood and community. 14 FOURTH CAUSE OF ACTION 15 (Peculiar Risk Doctrine;CAC 3708) 16 (By Plaintiffs Against Defendants Kinder Morgan Incorporated; 17 Kinder Morgan Energy Partners LP;and Does 120) is 52 The work of locating, marking,and monitoring excavation near petroleum 19 product pipelines in residential neighborhoods,and of advising excavators of the 20 location of such pipelines which may be affected by the excavation,is likely to involve a 21 special risk of harm to others. 22 53. Kinder Morgan, Incorporated, I(Inder Morgan Energy Partners LP, and 23 Does 120 possessed knowledge and experience in such field of work, and knew or 24 should have known that the work was likely to involve this risk. 25 54. An independent contractor to which 10nder Morgan Incorporated, Kinder 26 Morgan Energy Partners LP,and Does 1-20 delegated such work failed to use . 27 reasonable care to take specific safety measures appropriate to the danger to avoid 2S this risk COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 9 1. 55. Said Defendants, and each of them,received notification of proposed 2 excavation work in accordance with Government Code§4216.2. 3 56., Said Defendants,and each of them,failed to locate and field mark the 4 approximate location which may be affected by the excavation,to the extent and 5 degree of accuracy that the information Is available either In the records of the operator 6 as determined through standard locating techniques other than excavation,and failed 7 to advise of the location of the operator's subsurface installations which may be 8 affected by the excavation,In accordance with Government Code§4216.3. . 9 57. Such failure of such independent contractor was a cause of harm to 10 Decedent and Plaintiffs. 11 FIFTH CAUSE OF ACTION 12 (Negligence Per Se) 13 (By Plaintiffs Against Defendant Mountain Cascade, Inc,and Does 2030) 14 58. Defendant Mountain Cascade, Inc, and Does 20-30 and each of them was 15 an`excavator'engaged in an`excavation'within the meaning of Government Code 16 §4216. I7 59. Defendant Mountain Cascade, Inc,and Does 20-30 and each of them 18 failed to contact the appropriate regional notification center at least two working days 19 but not more than fourteen cglendar days prior to conducting an excavation In an area 20 which is known or reasonably should be known to contain subsurface Installations, In 21 vloWon of Government Code§4216.2. 22 SDaH CAUSE OF ACTION 23 (Negligence Per Se) 24 (By Plaintiffs Against Defendants Mountain Cascade, Inc.and Does.20.30) 25 60. Defendant Mountain Cascade,Inc.and Does 20-30 and each of them was 26 an'excavator engaged in an°excavation'within the meaning of Government Code 27 §4216. 28 COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 10 1 61. Defendant Mountain Cascade, Ina and Does 20=30 and each of them 2 failed to determine the exact location of subsurface installations in conflict with the 3 excavation by excavating with hand tools within the area of the approximate location of 4 subsurface installations as determined by field marking before using power-operated or S power-driven excavating or boring equipment in violation of Government Code 6 §4216.4. 7 SEVENTH CAUSE OF AC11ON 8 (Premises Liability,CACI 1003) 9 (By Plaintiffs Against Defendants Mountain Cascade, Inc. and Does 20-30) 10 62. Defendants Mountain Cascade, Inc. and Does 20.30 occupied and 11 controlled premises in which a 14-W deep trench was being excavated. 12 63. The property contained a hidden condition or conditions which created an 13 unreasonable risk of harm. 14 64. The occupier who controlled the property knew or should have known 15 about such condition or conditions. 16 65. The occupier who controlled the property failed to make reasonable 17 inspections to discover such condition or conditions. is 66. The occupier who controlled the property failed to take reasonable 19 precautions to protect against the harm,or to give adequate warning to those likely to 20 be injured by the hart. 21 67. Defendants Mountain Cascade, Ina and Does 20-30 and each of them 22 failed to verify location of 10"petroleum Ones prior to any construction between pipe 23 stations 100+00 and 101+00. 24 EIGHTH CAUSE OF ACTION 25 (Premises UabilW,CACI 1009) 26 (By Plaintiffs Against Defendants Mountain Cascade, Inc,and Does 20.30) 27 68. Defendants Mountain Cascade, Ina and Does 20-30 occupied and 28 controlled premises in which a 14-foot deep trench was being excavated. COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 11 1 69. An unsafe condition was created by or known to Mountain Cascade, inc, 2 and Does 20-30 and was not a known condition that Pial tiffs'Decedents employer 3 Matamoros Welding was hired to correct or repair. 4 70. Mountain Cascade, Inc.and Does 20-30 retained control over safety 5 conditions at the worksite and through their actions or failure to take actions they 6 contributed to death of Decedent and Plaintiffs'injuries. 7 NINTH CAUSE OF ACTION 8 (Presumption of Negligence) 9 (By Plaintiffs Against All Defendants) 10 71. Such a fire and explosion is the kind of event which ordinarily does not 11 happen unless someone is negligent. 12 72. Such fire and explosion was caused by an agency or instrumentality in 13 the exclusive control of the Defendants and over which the Defendants had the 14 exclusive right of control. 15 73. Such fire and explosion was not due.to any voluntary action or 16 contributionon tie part of the Plaintiffs'Decedent which was the cause of Plaintiffs' 17 Decedent's Injury and death. 18 TENTH CAUSE OF ACTION 19 (Negligent Undertaking) 20 (By Plaintiff Against All Defendants) 21 74. At all times herein mentioned Defendants, and each of thM undertook 22 for consideration to render services,perform ads,and/or labor and/or safety 23 inspections in the course of which said Defendants knew or reasonably should have 24 known precautions were necessary for the protecOon of others including Decedent 25 working at said premises. 26 75. Defendants,and each of them, negligently rendered services,performed 27 acts,failed to furnish labor and reasonable safety Inspections,and otherwise failed to 28 exercise reasonable care in said undertaking. COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 12 1 76. Defendants Kinder Morgan Incorporated,lander Morgan Energy Partners 2 LP,and Does 1-20 were operators of a subsurface Installation within the meaning'of 3 Government Code§4216 who received notification of proposed excavation work in 4 accordance with Government Code§4216.2 and thereafter undertook but failed to 5 locate and field marls the approximate location which may be affected by the 6 excavation,to the extent and degree of accuracy that the Information is available either 7 In the records of the operator as determined through standard locating techniques 8 -other than excavation, and failed to advise of the location of the operator's subsurface 9 installations which may be affected by the excavation, in accordance with Government 10 Code§4216.3. 11 77. Defendants Mountain Cascade, Inc.and Does 2"0 and each of diem 12 was an"excavatce engaged In an'excavallon'within the meaning of Government 13 Code§4216, and undertook but failed to determine the exact location of subsurface 14 installations In conflict with the excavation by excavating with hand tools within the area. 15 of the approximate location of subsurface installations as determined by field marldng 16 before using power-operated or power-driven excavating or boring equipment in 17 violation of Government Code§4216.4. is 78. Defendants,and each of them, thereby increased the risk of harm to 19 others,including Decedent,who were foreseeably upon said premises. 20 EWMNTH CAUSE OF ACTION 21 (intentional Misrepresentation Causing Physical Harm by Plaintiff Marilu Angeles as 22 Guardian ad Lftem for the Successors in Interest of Israel Hernandez, Deceased; 23 Against Defendants Kinder Morgan, Incorporated, vender Morgan Energy Partners LP; 24 Mountain Cascade, Inc.;and Does 1-30) .25 79. Defendants,and each of them,knew that construction workers were 26 excavating a trench and building a 694nch pipeline to transport water from Walnut 27 Creek to San Ramon, In accordance with a written general contract between East Bay 28 Municipal Utility District and Mountain Cascade; Inc. COMPLAjffr FOR PERSOMAL IMMES AND WRONGFUL DEATH 13 1 80. Defendants,and each of them,knew that the route of the 69-Inch water 2 pipeline was to be generally parallel to,east of and above a 10-inch petroleum 3 products pipeline owned and operated by lander Morgan, Incorporated and/or Kinder 4 Morgan Energy Partners LP for transporting gasoline under high pressure 5 approximately 60 miles from Concord to San Jose. 6 81. Defendants lander Morgan, Incorporated, Kinder Morgan Energy Partners 7 LP,and Does 1-20 were operators of a subsurface installation within the meaning of 8 Government Code§4216. 9 82. IGnder Morgan, Incorporated Is the general partner of lander Morgan 10 Energy Partners LP. it 83. Kinder Morgan Energy Partners LP is the largest Independent 12 owner/operator of products pipelines in the country,transporting more than two milron 13 barrels a day of gasoline,jet fuel,and diesel fuel and up to 7.8 billion cubic feet a day 14 of natural gas liquids,through more than ten thousand miles of pipelines,of which 15 some 3,850 miles are in its Pacific pipeline system. 16 84. IGnder Morgan Energy Partners LP is the nation's largest publicly traded 17 pipeline limited partnership in the United States in tents of market capitalization. 18 85. DefwWants,and each of them,knew that Kinder Morgan Energy Partners 19 LP owns a 45%interest in the Cochin Pipeline System,a 1900-mile natural gas liquids 20 pipeline operating between Alberta and Ontario In Canada that transverses through 21 seven states In the United States. 22 86. Defendants,and each of them, knew that on July 16,2003,at 23 approximately 6.30 am.,the USA portion or the Cochin Pipeline System experienced a 24 rupture and fire at a rural location approximately 75 miles east of Fargo, North Dakota. 25 87. On July 3D,2003,a Kinder Morgan Energy Partners pipeline broke in a 26 Tucson subdnnsion. Gasoline sprayed more than fifty feet into the air,saturated five 27 homes being built and contaminated soil and groundwater. 28 COmPIAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH 0 l� . • i 1 88. On April 28,2004,at approximately 7:00 p.m.,a Kinder Morgan Energy 2 Partners pipeline which transports gasoline,jet fuel,and diesel to Chico and 3 Sacramento, California and to Reno,Nevada,experienced a rupture not discovered 4 until April 30, 2004,as a result of which approximately 1,000 liarreis or 42,000 gallons 5 of diesel spilled into about 250 acres of Suisun Marsh,among the most important 6 wetlands in Northern California. Criticized for the delayed response,a managing agent 7 of Defendants KlnderMorgan, Incorporated and Kinder Morgan Energy Partners LP 8 replied'You can't cry wolf every time you see an anomaly.' 9 89. On November 22,2004,for the second time in as many months,a 14 pipeline that transports gasoline from Colton and Barstow, California Into Las Vegas, I Nevada experienced a rupture in a rural area near Baker,California. California 12 Highway Patrol officers on nearby Interstate 15 noticed a strong odor and dosed the 13 freeway,which led to discovery of a 50-to-60 foot gasoline vapor geyser 14 90. Defendants,and each of them,knew that East Bay Municipal Utility 15 District's contract with its general contractor required compliance with all applicable 16 statutes and occupational and health standards,rules, regulations,and orders. 17 91. Defendants, and each of them,knew that to guard against extreme risk of 18 Injury to persons and property,East Bay Municipal Utility District's contract with its 19 general contractor specified that work a"South Broadway is adjacent to a high 20 .pressure petroleum pipeline owned by Kinder Morgan, Incorporated;that construction 21 activities should be coordinated with Lary Hosier,Manager Pipeline Maintenance, 22 Kinder Morgan,Incorporated;that the contractor shall notify all owners of utilities when 23 his work is in progress;that the contractor is responsible for having all underground 24 utilities and structures located in advance of excavation;that the contractor notify all 25 known owners of underground utilities in the area of proposed work and Underground 26 Service Alert,8OM2-2444 at least two worldng days before the start of actual 27 excavation;that the contractor shall determine the exact location of existing utilities 28 whose approximate locations are shown on drawings;that contract drawings depicted a COMPLAW FOR PERSONAL INMIES AND WRONGFUL DEATH 15 I bend in the 10"petroleum pipeline between pipe stations 100+00 and.101+00;that the 2 contractor shall probe carefully to determine the exact Wation of utility, and hand 3 excavate when necessary to avoid damages;that the contractor shall verify location of 4 10"petroleum tines prior to any construction between pipe stations 100+00 and 5 101+00;and that hand excavation Is required within 24"on either side of the exterior 6 surface of any underground utility. 7 92. Said Defendants, and each of them,-were aware of the responsibility to 8 provide notification of proposed excavation work In accordance with GQvemment Code 9 §4216.2,to locate and field mark subsurface installations which may be affected in 10 accordance with Government Code§4216.3,and to determine the exact location of . 11 subsurface installations by hand excavating in accordance with Government Code 12 §4216.4. 13 93. Defendants,and each of them,knew that operating, locating,field 14 marldng and excavating now petroleum products pipelines transporting gasoline,jet 15 and diesel fuels created the existence of a special,high degree of risk of harm to 16 persons, land and chattels of others, knew the likelihood that harm that remits from it 17 will be great,and knew the petroleum products pipeline was inappropriate to the 18 surrounding residential neighborhood,sdwol,and community where it was located. 19 94. Defendants,and each or them,knew that Matamoros Pipeline, inc.,a. 20 welding subcontractor to East Bay Municipal Utility District's general contractor,and its 21 employees would rely for their safety upon defendant's compliance with statutory, 22 regulatory,and contract terms induding but not limited to locating,field marking,and 23 hand excavating near the petroleum products pipeline. 24 98. Defendants,and each of them,knew that East Bay Municipal Utility 25 District's general contract was Initially awarded to Modem Continental Construction of 26 Cambridge,Massachusetts. 27 98. Defendants, and each of them, knew that in 2003 Modem Continental 28 Construction determined that a segment of the petroleum products pipeline was COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL.DEATH to I approximately 13 feet from where it was marked by I(Inder Morgan,Incorporated, 2 IClnder Morgan Energy Partners LP and Does 120, 3 97. Defendants,and each of them,knew that In May 2004 East Bay Municipal 4 Utility District terminated its general contact with Modem Continental in part for working 5 too slowly. 6 98. Defendants,and each of them,knew that prior to November 9,2004, 7 Modem Continental Construction objected to termination of its general contract with 8 East Bay Municlpal Utility District,expressed concern-about the petroleum products 9 pipeline along South Broadway,filed suit for breach of contract,and alleged its delays 10 were due.In part to problems with how well the 104nch petroleum products pipeline was 11 located on general contract documents and pians. 12 99. Defendants,and each of them,knew that prior to November 9,2004, East 13 Bay Municipal Utility District awarded its general contract to Mountain Cascade, Inc.,a 14 corporation or other business entity organized pursuant to the laws of the State of 15 California with its principal place of business in the City of Livermore, County of 16 Alameda,State of California. 17 100. Defendants Mountain Cascade,Ina and Does 2D-30,and each of them, 18 was an"excavator engaged in an"excavation"within the meaning of Government 19 Code§4216. 200 101. Defendants,and each of them,knew that Mountain Cascade, ina 21 advertised that"we routinely take on rough projects that our competitors shy away from 22 and tum them into profit." 23. 102. Defendants,and each of them,knew that Mountain Cascade, Inc.has had 24 two deaths in the last five years,the most recent being in March 2004 when a worker 25 was crushed while unloading.pipe. 26 103. Defendants,and each of them, made to East Bay Municipal Utility District, 27 Decedent's employer Matamoros Pipeline, Ina, Decedent's coworkers, and Decedent, 28 representations of material fad as follows: COMPLAINT FOR PERSONAL.INJURIES AND WRONGFUL DEATH 117 1 a. Defendants Kinder Morgan, Incorporated,Kinder Morgan Energy partners 2 LP,and Does 1-20 placed field marking devices so as to represent the location of their 3 petroleum products pipeline; 4 b. Defendants Kinder Morgan, Incorporated,Kinder Morgan Energy partners 5 LP,and Does 1-20 stated that field marking devices accurately represented the 6 location of their petroleum products pipeline,that excavators need only follow the field 7 marking devices to avoid conflict with their petroleum products pipeline,and that 8 additional locating or monitoring by said Defendants was ur vxmsary; 9 a Defendants Mountain Cascade, Ina and Does 20-30 by using 10 power-operated or power-driven excavating or boring equipment and otherwise,stated 11 .they had by excavating with hand tools determined the exact location of the petroleum .12 products pipeline. 13 104. These representations were in fact false,and the truth was as follows: 14 a. The petroleum products pipeline was not where Kinder Morgan, 15 Incorporated, Kinder Morgan Energy Partners LP, and Does 1-20 represented it to be, 16 b. Kinder Morgan, Incorporated, Kinder Morgan Energy Partners LP,and 17 Does 1-20,and each of therm,had failed to locate and field murk the approximate 18 location which may be affected by the excavation,to the extent and degree of accuracy 19 that the Information Is available either in their own records or through standard locating 20 techniques o0w than excavation; 21 a Defendants,and each of them,for their financial benefit had knowingly 22 failed to employ personriel and/or employed unfit personnel to locate and mark the 23 petroleum products pipeline; 24 d. The exact location of the petroleum products pipeline,not where field 25 marking indicated it to be,had not been determined by excavating with hand tools;and 26 e. Theexact location of the petroleum products pipeline,not where field 27 marling indicated it to be,was determinable from records,drawings,and contract 28 COMPLAINT FOR PERSONAL INJURIES AND WRONGFUL DEATH Is 1 documents In the possession of Defendants Kinder Morgan, Incorporated, Kinder 2 Morgan Energy Partners LP,Mountain Cascade, Inc.anct Does 1-30.. . 3 f. The reoords,drawings,and contract documents In the possession of 4 Defendants depicted a bend in the 10"petroleum pipeline between pipe stations 5 100+00 and 101+00. 6 106. When Defendants,and each of them,made the above representations, 7 said Defendants knew them to be false,had no reasonable ground for believing the 8 representations were true,and knew they had not the knowledge which they professed 9 106. Defendants,and each of them,made the representations with the intent 10 -that the representatlons be communicated to Decedent's employer, Decedent's 11 coworkers,and Decedent,that the representations induce Decedents employer, 12 Decedent's coworkers,and Decedent to work and act in justifiable reliance upon the 13 representations,which actions Defendants knew involved an unreasonable risk of 14 physical harm to Decedent's coworkers and Decedent. 15 107. Decederfs employer,Decedent's coworkers and Decedent received 16 Defendants'misrepresentations, and justifiably relied upon them. 17 108. Defendants,and each of them,in failing to notify,failing to mark even the 18 approximate location,and failing to determine the'exact location of the petroleum 19 products pipeline,before excavating with power-operated or power-driven excavating 20 or boring equipment,acted intentionally and despicably and with willful and conscious 21 disregard of the safety of workers In the vicinity. 22 109. Defendants Kinder Morgan, Incorporated, Kinder Morgan Energy Partners 23 LP,Mountain.Cascade, Inc.,and Does 1-30 had advance knowledge of the unfitness of 24 agents and employees, including but not limited to those who placed field marking 25 devices,those who represented that excavators need only follow field marking devices 26 to avoid conflict with the petroleum products pipeline,and those who failed to 27 determine its exact location from records,drawings,contract documents in their 28 COMPLAINT FOR PERSONAL faIRIEs AND WRONGFUL DEATH 19 I. possession, or excavation with hand tools,and employed them with conscious 2 disregard for the rights and safety of others. 3 110. Defendants Kinder Morgan, Incorporated,Kinder Morgan Energy Partners 4 LP, Mountain Cascade, Inc., and Does 1.30,and each of them,through officers, 5 directors and/or.managing agents thereby authorized said acts of employees and 6 thereafter ratified said acts by continuing to employ them,by failure to criticize, 7 censure,terminate,suspend or take other remedial action against them,by interfering 8 with attempts by regulatory authorities W. uding but not limited to Cal-OSHA to 9 Interview them;and by providing them with legal counsel so as to defend their conducL 10 111. The above-described conduct of Defendants Kinder Morgan, 11 Incorporated, Kinder Morgan Energy Partners, LP,Mountain Cascade, inc.and Does 12 130,and each of them,which includes intentional disregard of safety standards and 13 acting in a manner calculated to Interfere with or deceive regulatory authorities,for 14 Defendants'financial benefit,was despicable and carried on with a willful.and 15 conscious disregard for the rights and safety of others. 16 . 11Z The above-described conduct of Defendants IGnder Morgan, 17 Incorporated, Kinder Morgan Energy Partners, LP,Mountain Cascade, Inc.and Does 18 1-30,and each of them,which indWes intentional disregard of safety standards and 19 aging in a manner caiailated to stonewall or deceive regulatory authorities,for 20 Defendants'financial benefit,subjected persons to cruel and urdust hardship in 21 conscious disregard for such persons'rights. 22 113. Asa.proximate result of said conduct,said reliance thereon, and of the 23 lNudes sustained, Plaintiffs are entitled to the protection of Civil Code§3294 and to an 24 award of exemplary and punitive damages in excess of the jurisdictional minimum of 25 this Court 26 PRAYER FOR RELIEF 27 WHEREFORE,Plaintiffs pray for Judgment against Defendants,and each of 28 them,as follows. COMPLAINT FOR PERSONAL IWUMES AND WRONGFLII.DEATH ZO 1 1. For general damages in excess of the jurisdictional minimum of this Court; 2 2. For funeral,burial and incidental expenses according to proof; 3 3. For loss of support and related economic losses according to proof, 4 4. For the Second Cause of Action only,to disgorge profits from unlawful S business acts and practices; 6 5. For the Eleventh Cause of Action only,for damages for the sake of 7 example and by way of punishing the Defendants named therein,pursuant to Civil 8 Code§3294; 9 6. For prejudgment interest and attorney's fees according to law; - 10 7. For costs of this suit; and .11 & For such other and further relief as Is proper. 12 DATED: January 2005 BOXER&GERSON, LLP _ 13 P-3-7. sy: ( '14 JOHN M.ANTON Attorneys for Plaintiffs IS 16 17 19 20 21 22 23 24 25 26 27 28 I ES AND WRONGFUL DEATH 21 COMPLAINT FOR PERSONAL NJURI n i John H.Gomez(171485) I Maria F.Palmieri(234560) The Gomez Law Firm. 2 625 Broadway,Suite 1104 San Diego,California 92101 3 Telephone: (619)237-3490/Fax:(619)237-3496 4 Attorneys for Plaintiff ROGER PAASCH 5 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF CONTRA COSTA 9 GAS PIPELINE EXPLOSION CASES Judicial Council Coordination Proceedings . 10 ) No.:4433 Coordinated Actions. ) I 1 ) (Unlimited Civil) Knox,et al.v.MOUNTAIN CASCADE,et ) 12 al.(Contra Costa Sup.Ct.Case.No.C 05- ) SECOND AMENDED COMPLAINT FOR 00281);FARLEY v.MOUNTAIN ) DAMAGES;DEMAND FOR JURY 13 CASCADE,et al. (Contra Costa Sup.Ct. ) TRIAL Case No.C 05-01573);REYES,et al.v. ) l 14 EAST BAY MUNICIPAL UTILITY ) ROGER PAASCH v. EAST BAY DISTRICT,et al.(Alameda Sup.Ct.Case ) MUNICIPAL UTILITY DISTRICT,et al. 15 No.RG-05-207720);ARIAS,et al.v. ) (Contra Costa Sup. Ct.Case No. C 05-01844) KINDER MORGAN,et al.(Alameda Sup. ) 16 Ct.Case No.RG-05-195567);ANGELES,et ) al.v.KINDER MORGAN,et al.(Alameda ) 17 Sup. Ct. Case No.:RG-05-195680);IM,et al. ) v. KINDER MORGAN,et al.(Contra Costa ) 18 Sup.Ct. Case No.C05-02077);PAASCH v. EAST BAY MUNICIPAL UTILITY ) 19 DISTRICT,et al.(Contra Costa Sup.Ct. ) Case No.C05-08144);FUENTES v. ) 20 KINDER MORGAN,et al.(Contra Costa ) 21 Sup.Ct.Case No.:C05-02286) 22 PARTIES AND VENUE 23 Plaintiff alleges: 24 I. Plaintiff ROGER PAASCH is an individual and,at all times mentioned herein was,a resident 25 of the State of California. 26 2. Defendant EAST BAY MUNICIPAL UTILITY DISTRICT(hereinafter"EBMUD")is, and at �L-F.- 27 �M` all times mentioned herein was, a publicly owned utility formed under the Municipal District Act 28 t. -1- SECOND AMENDED COMPLAINT FOR DAMAGES I passed by the California Legislature in 1921. EBMUD maintains its administrative and headquarters' 2 offices and is situated in the City of Oakland, County of Alameda, State of California. EBMUD 3 planned, designed, owned, supervised, controlled,and constructed a public works construction project 4 known as the Walnut Creek-San Ramon Valley Improvement Project ("Project,") which involved the 5 installation of a water pipeline ("EBMUD Pipeline.") The route of the EBMUD Pipeline was to be 6 generally parallel to, east of, and above a high-pressure fuel pipeline system located in, among other 7 places, the City of Walnut Creek, County of Contra Costa, State of California("Kinder Pipeline.")The 8 section of the Project and Kinder Pipeline at issue in this complaint was located within downtown 9 Walnut Creek, California in the direct vicinity of business entities, a school, and residences. On or 10 about May 9, 2005, Plaintiff presented his claims to EBMUD pursuant to Government Code section 11 910. On or about May 16,2005,EBMUD rejected the claims in their entirety. 12 3.Defendant MOUNTAIN CASCADE INC. (hereinafter"MOUNTAIN CASCADE")is,and at 13 all times mentioned herein was,a corporation duly organized and existing under the laws of the State of 14 California. MOUNTAIN CASCADE is a pipeline contractor and maintains its headquarters' offices in 15 the City of Livermore, County of Alameda, State of California. EBMUD hired, among others, 16 MOUNTAIN CASCADE as the general contractor on the Project, and the events in issue occurred 17 during the performance of a contract entered into in the County of Alameda, State of California. 18 MOUNTAIN CASCADE is the largest pipeline contractor in the region, and prides itself that it 19 "routinely take[s] on tough projects that our competitors shy away from and turn[s] them into profit." 20 MOUNTAIN CASCADE represents that the foundation of its success is built on its dedication to 21 "knowledge,integrity,quality and superior service." 22 4.Defendant KINDER MORGAN ENERGY PARTNERS,L.P.(hereinafter"KMEP")is,and at 23 all times mentioned herein was,a limited partnership duly organized and existing under the laws of the 24 State of Delaware, and qualified and doing business in the State of California. KMEP is, and at all 25 times relevant herein was,the designer,manufacturer, owner, operator,manager, locator, field marker, 26 monitor, and inspector of a high-pressure fuel pipeline system located in, among other places, the City S�Fl� 27 of Walnut Creek, County of Contra Costa, State of California ("Kinder Pipeline.") KMEP is the 28 largest independent owner/operator of products pipeline in the United States, transporting more than -2- SECOND AMENDED COMPLATNr FOR DAMAGES I two million barrels a day of gasoline,jet fuel and diesel fuel and up-to 7.8 billion cubic feet a day of 2 natural gas liquids through more than 10,000 miles of pipelines,of which some 3,850 are in its Pacific 3 pipeline system. It is the largest publicly traded pipeline limited partnership in the United States in 4 terms of market capitalization. 5 5.Defendant SFPP,LP(hereinafter"SFPP")is,and at all times mentioned herein was,a limited 6 partnership duly organized and existing under the laws of the State of Delaware, and qualified and 7 doing business in the State of California. SFPP is, and at all times relevant herein was, the designer, 8 manufacturer, owner, operator, manager, locator, field marker, monitor, and inspector of the Kinder 9 Pipeline. SFPP is an operating partnership and subsidiary limited partnership of KMEP. 10 6. Defendant KINDER MORGAN G.P., INC. (hereinafter "KMGP") is, and at all times II mentioned herein was, a corporation duly organized and existing under the laws of the State of 12 Delaware, and qualified and doing business in the State of California as, among other things, the 13 general partner of KMEP. KMGP, is, among other things, the wholly owned subsidiary of Defendant 14 KINDER MORGAN,INC. KMGP is,and at all times relevant herein was,the designer,manufacturer, 15 owner,operator,manager,locator,field marker,monitor,and inspector of the Kinder Pipeline. 16 7. Defendant KINDER MORGAN,INC. (hereinafter"KMI") is, and at all times mentioned 17 herein was, a corporation duly organized and existing under the laws of the State of Kansas, and. 18 qualified and doing business in the State of California. KMGP is the wholly-owned subsidiary of KMI. 19 KMI is, and at all times relevant herein was, the designer, manufacturer, owner, operator, manager, 20 locator, field marker, monitor, and inspector of the Kinder Pipeline. KMI is one of the largest mid- 21 stream energy companies in the United States, owning and/or operating more than 35,000 miles of 22 natural gas and products pipeline. 23 8.Defendant CAMP DRESSER&.McKEE INC. ("hereinafter"CDM") is, and at all times 24 mentioned herein was, a corporation duly organized and existing under the laws of the State of 25 Massachusetts, and qualified and doing business in the State of California. CDM entered into a 26 contract with,among others,EBMUD to design the Project. CDM then entered into a subcontract with 27 CAROLLO ENGINEERS to design the portion of the Project at issue in this lawsuit. Prior to serving 28 the First Amended Complaint on CDM, Plaintiff has filed the required certificate of merit pursuant to -3- SECOND AMENDED COMPLAINT FOR DAMAGES I Code of Civil Procedure section 411.35. 2 9. Defendant CAROLLO ENGINEERS (hereinafter "CAROLLO") is, and at all times 3 mentioned herein was, a professional corporation duly organized and existing under the laws of the 4 State of Arizona,and qualified and doing business in the State of California. CAROLLO entered into a 5 subcontract agreement with CDM to design the Project, the portion of which is at issue in this lawsuit. 6 Prior to serving the First Amended Complaint on CAROLLO,Plaintiff has filed the required certificate 7 of merit pursuant.to Code of Civil Procedure section 411.35. 8 10. Defendant COMFORCE TECHNICAL SERVICES, INC. (hereinafter "COMFORCE') is, 9 and at all times mentioned herein was,a corporation duly organized and existing under the laws of the 10 State of Delaware, and qualified and doing business in the State of California. COMFORCE is a 11 provider of contingent staffing, information technology, consulting and human resource outsourcing 12 solutions, including. COMFORCE provided temporary staffing of pipeline construction inspectors to 13 and was hired by, among others, KMEP, SFPP, KMGP, and KMI, with respect to the Project and 14 Kinder Pipeline. 15 11. DOES 1-50, inclusive, and each of them, are, and at all times mentioned herein were, 16 individuals and/or business organizations form unknown that were engaged in the business of planning, 17 designing,owning,supervising,controlling and constructing the Project. 18 12. DOES 51-100, inclusive, and each of them, are, and at all times mentioned herein were, 19 individuals and/or business organizations form unknown were engaged in the construction, 20 supervision, operation, and control of the Project as contractors or subcontractors hired by EBMUD, 21 and DOES 1-50,and each of them,and/or MOUNTAIN CASCADE. 22 13. DOES 101-150, inclusive, and each of them, are, and at all times mentioned herein were, 23 individuals and/or business organizations form unknown that designed, manufactured, sold, owned, 24 controlled, operated, maintained, inspected, distributed, transported, located, field marked,monitored, 25 and managed the Kinder Pipeline and/or contents therein. 26 14. DOES 151-200, inclusive, and each of them, are, and at all times mentioned herein were, �L—Fi- 27 individuals and/or business organizations form unknown that were the owner(s) and/or bailee(s)of the n d taw 28 backhoe vehicle which struck the Kinder Pipeline. -4- SECOND AMENDED COMPLAINT FOR DAMAGES 1 15. DOES 201-250, inclusive, and each of them, are, and at all times mentioned herein were, 2 individuals and/or business organizations form unknown that drove and/or operated the backhoe 3 vehicle which struck the Kinder Pipeline. 4 16. DOES 251-300, inclusive, and each of them, are, and at all times mentioned herein were, 5 individuals and/or business organizations form unknown that owned or controlled the real property 6 where the Project,EBMUD Pipeline,and Kinder Pipeline was located. 7 17.Plaintiff is ignorant of the true names and/or capacities of defendants sued herein as DOES 1- 8 300, inclusive, and therefore sue these defendants by such fictitious names. Plaintiff will amend this 9 complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes, 10 and on that basis alleges,that each of said fictitiously named defendants is responsible in some manner 11 for the occurrences hereinalleged,and that the injuries herein alleged were proximately caused by said 12 their conduct. 13 18.Plaintiff is informed and believes and on that basis alleges that at all times mentioned herein, 14 each of the defendants was the agent and employee of each of the remaining defendants, and in doing 15 the things alleged in this Complaint, was acting within the course and scope of this agency and 16 employment, with the knowledge, approval, consent and ratification of each of the remaining 17 defendants. 18 19.Plaintiff is informed and believes, and thereon alleges,that at all times relevant, there exists, 19 and has existed,a unity of interest and ownership between KMEP, SFPP,KMGP and KMI,and DOES 20 101-150,and each of them,such that any individuality and separateness between the entities has ceased 21 to exist. Upon information and belief, KMEP is the alter ego of KMGP, SFPP, KMI, and DOES 101- 22 150, and each of them. Upon information and belief, SFPP is the alter ego of KMEP, KMGP, KMI, 23 and DOES 101-150, and each of them. Upon information and belief, KMGP is the alter ego of KMI, 24 and DOES 101-150. Among other things, (a) KMEP was and is completely controlled, dominated, 25 managed and operated by KMGP and KMI,and DOES 101-150,and each of them, (b)SFPP was and 26 is completely controlled, dominated, managed and operated by KMEP, KMGP, KMI and DOES 101- L—R- 27 150,and each of them,(c)KMGP was and is completely controlled, dominated,managed and operated n s1 len 28 by KMI, and DOES 101-150,and each of them, (d) KMEP, SFPP, KMGP, KMI and DOES 101-150, -5- SECOND AMENDED COMPLAINT FOR DAMAGES I and each of them, have permitted assets to be transferred between themselves without adequate 2 consideration, (e) KMEP, SFPP, KMGP, KMI and DOES 101-150, and each of them, have disguised 3 corporate profits in order to evade liability and the payment of judgments, and (f) KMEP, SFPP, 4 KMGP, KMI, and DOES 101-150, and each of them,was and is inadequately capitalized. Adherence 5 to the fiction of the separate existence of KMEP,SFPP, KMGP,KMI and DOES 101-150,and each of 6 them, would permit an abuse of the corporate privilege and would sanction fraud or promote injustice 7 because the entities, and each of them,used in bad faith for the purpose of evading liability and as a 8 means of allowing the other entities, and each of them, to profit from their control and manipulation 9 free from the claims of Plaintiffs. 10 20.Venue is proper in the Superior Court of the State of California,County of Contra Costa. I 1 GENERAL ALLEGATIONS 12 21.Plaintiff,incorporates each and every allegation contained in paragraphs 1 through 20 above, 13 as though fully set forth herein. 14 22. EBMUD, and DOES 1-50, and each of them, planned, designed, owned, supervised, 15 controlled, and constructed the Project, which involved the installation of the EBMUD Pipeline. 16 EBMUD began the design of the Project in 2000. EBMUD entered into a contract with CDM for CDM 17 to provide professional engineering design the Project. CDM later entered into a subcontract with 18 CAROLLO, whereby CAROLLO would design the portion of the Project which is at issue in the 19 present lawsuit. 20 23. EBMUD's general contract was initially awarded on or about October of 2002 to Modern 21 Continental Construction Co. In late 2002, the full Kinder Pipeline was marked by a line rider 22 employed by KMEP, SFPP,KMGP, KMI, COMFORCE,and DOES 101-150, and each of them. The 23 individual was supposed to be using conductive locating equipment. The individual marked the Kinder 24 Pipeline by placing paint.marks and flags along the Kinder Pipeline, but failed to indicate the bend in 25 the line at station 100+15 where an oak tree once stood. 26 24. Prior to beginning field work on the Project, a field meeting was held on or about February _.--Fl.. 27 3, 2003 between, among others, Modern Continental Co., EBMUD, KMEP, SFPP, KMI, KMGP, 28 COMFORCE, and DOES 1-150, and each of them. At the conclusion of the field meeting, -6- SECOND AMENDED COMPLAINT FOR DAMAGES I representatives of EBMUD,KMEP, SFPP, KMGP, KMI,COMFORCE,and DOES 1-150, and each of 2 them, walked the South Broadway portion of the Kinder Pipeline. No fresh field markings were 3 observed and no offsets were marked or pointed out by EBMUD, KMEP, SFPP, KMGP, KMI, 4 COMFORCE, and DOES 1-150, and each of them, around station 100+15. As of March of 2003,no 5 field markings were visible. 6 25. In addition, in or about 2003 or 2004, Modern Continental Co. was excavating for the 7 EBMUD Pipeline and Project,and determined that a segment of the Kinder Pipeline was approximately 8 13 feet from where it had been field marked by KMEP,SFPP,KMGP,KMI,COMFORCE,and DOES 9 101-150, and each of them. Modern Continental Co. expressed this concern to, among others, 10 EBMUD,KMEP,SFPP,KMGP,KMI,and DOES 1-50,and 101-150,and each of them. In addition,in I 1 or about August of 2003, EBMUD requested KMEP, SFPP, KMGP, KMI, and DOES 101-150, and 12 each of them,to relocate a section of the Kinder Pipeline because it was, among other things, hard to 13 locate and a hindrance to completion of the Project. In or about early 2004, Modern Continental, 14 EBMUD, and DOES 1-50, and each of them, were extremely concerned about the location of the 15 Kinder Pipeline because it was still in the way of the excavation for the EBMUD Pipeline and Project. 16 Among others,Modern Continental Co., EBMUD, KMEP, SFPP, KMGP, KMI, and DOES 1-50, and 17 101-150, and each of them, discussed in early 2003 the location of the Kinder Pipeline and how to 18 continue working on the Project despite the location of the Kinder Pipeline. 19 26. On or about May 28, 2004, EBMUD issued a "Notice of Default Termination" to Modern 20 Continental Construction Co. 21 27. After EBMUD terminated its general contract with Modern Continental Construction Co., 22 EBMUD, and DOES 1-50, and each of them, contracted in August of 2004 with, among others, 23 MOUNTAIN CASCADE and DOES 51-100, and each of them, to complete construction of the 24 Project. In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act of 25 the Public Contract Code of the State of California, MOUNTAIN CASCADE and DOES 51-100, and 26 each of them, thereafter subcontracted with, listed and employed, among others, Matamoros Pipeline, �.- 27 Inc.to,among other things,weld together segments of the EBMUD Pipeline. Matamoros Pipeline,Inc. 28 employed ROGER PAASCH,as a welder. -7- SECOND AMENDED COMPLAINT FOR DAMAGES f� 1 28.Prior to starting excavation,the EBMUD contract required a field meeting between EBMUD 2 and MOUNTAIN CASCADE. The meeting occurred on September 28, 2004 and was attended by 3 representatives of EBMUD, MOUTAIN CASCADE, KMEP, SFPP, KMGP, KMI, COMFORCE, and 4 DOES 1-150, and each of them. At that meeting, the line rider employed by KMEP, SFPP, KMGP, 5 KMI, COMFORCE, and DOES 1-150, and each of them, represented that the line markers were 6 directly over the Kinder Pipeline and that the Kinder Pipeline ran straight between the line markers. 7 The attendees of the meeting walked the entire length of the Kinder Pipeline using a 100-foot tape to 8 show the location of the proposed EBMUD Pipeline and determine if there would be any interference 9 with the Kinder Pipeline. Fieldwork commenced in late September,2004. 10 29. In or about October of 2004, benching for the trenching excavator in the area of the offset 11 took place. MOUNTAIN CASCADE, and DOES 1-150, and each of them,benched over the offset at 12 station 100+15. As of November 3 and 4,2004,there were no markings indicating the offset. 13 30. On or about November 8, 2004, a site meeting occurred which was required by 14 MOUNTAIN CASCADE three days earlier,and attended by,among others,MOUNTAIN CASCADE, 15 KMEP, SFPP,KMGP,KMI, COMFORCE,EBMUD,and DOES 1-150,and each of them. One of the 16 purposes of the meeting was to provide assurance that MOUNTAIN CASCADE was excavating 17 properly; MOUNTAIN CASCADE did not specifically inquire about the offset at station 100+15, and 18 neither KMEP, SFPP, KMGP, KMI, COMFORCE, EBMUD, and DOES 1-150, and each of them, 19 represented anything about the offset. 20 31. On or about November 9, 2004, ROGER PAASCH was working within the course and 21 scope of his employment at the Project, welding inside the EBMUD Pipeline, which lay in a trench 22 being excavated for the EBMUD Pipeline and following South Broadway between Newell Avenue and 23 Rudgear Road in the City of Walnut Creek,County of Contra Costa,State of California. 24 32. Near to where ROGER PAASCH was working,a backhoe operator(Greg Berry)under the 25 direct supervision and control of EBMUD,MOUNTAIN CASCADE, KMEP, SFPP,KMGP, KMI and 26 DOES 1-150, and each of them, excavated the trench in which the EBMUD Pipeline was being =LmF— 27 installed. rs r taw 28 33. A buried underground pipeline owned and operated by, among others, KMEP, SFPP, -8- SECOND AMENDED COMPLAINT FOR DAMAGES 1� I KMGP,and KMI, and DOES 101-150,and each of them ("Kinder Pipeline')lay immediately adjacent 2 to the EBMUD Pipeline trench. The Kinder Pipeline was at all times an underground utility 3 transporting flammable material,consisting of gasoline,diesel fuel and/or jet fuel. 4 34. The Kinder Pipeline lay immediately adjacent to the EMBUD Pipeline trench. In fact, there 5 was a bend in the Kinder Pipeline at station 100+15,where the Kinder Pipeline veered around the roots 6 of an oak tree that once stood at the location. 7 35.As a result of the conduct.of defendants,and each of them,herein,on or about November 9, 8 2004, a backhoe operator(Greg Berry) as an employee of MOUNTAIN CASCADE and/or DOES 51- 9 100, 151-250,and each of them, se operated the backhoes as to penetrate the Kinder Pipeline, causing 10 the flammable material within to escape.Plaintiff is informed and believes,and thereon alleges,that the 11 flammable material and byproducts thereof from the explosion entered the EMBUD Pipeline in which 12 Plaintiff ROGER PAASCH,was working,resulting in personal injuries to Plaintiff ROGER PAASCH, 13 in a manner presently unknown to Plaintiff,and each of them.Plaintiff ROGER PAASCH,has suffered 14 and continues to suffer, among other things, damage to his personal property, personal injury, and 15 unjustifiable and substantial physical pain and mental suffering. Plaintiff ROGER PAASCH also 16 suffered horrendous injury, and physical and mental suffering trapped for a period in the EMBUD 17 Pipeline. 18 36.On or about November 9,2004,MOUNTAIN CASCADE,and DOES 51-100, and 201-250, 19 and each of them, so operated the backhoe as to penetrate the Kinder Pipeline, causing the flammable 20 material within to escape. Plaintiff is informed and believes, and thereon alleges, that the flammable 21 material and byproducts thereof from the explosion entered the EBMUD Pipeline in which ROGER 22 PAASCH was working,resulting in catastrophic personal injuries to ROGER PAASCH. Not only did 23 ROGER PAASCH suffer catastrophic and permanent physical injuries when he was burned,he suffers 24 and will continue to suffer devastating emotional injuries and mental distress as the result of witnessing 25 co-workers burn alive under horrific circumstance. 26 37. Prior to November 9, 2004, KMEP, SFPP, KMGP, KMI and DOES 101-150, and each of u lar F— 27 them, owns a 45% interest in the Cochin Pipeline System, a 1900-mile natural gas liquids pipeline 28 operating between Alberta and Ontario Canada, traversing through seven states in the United States. -9- SECOND AMENDED COMPLAINT FOR DAMAGES I On or about July 16, 2003, the United States portions of the Cochin Pipeline System experienced a 2 rupture and fire at a rural location about 75 miles from Fargo,North Dakota. 3 38. Approximately two weeks later on or about July 30, 2003, a pipeline owned/operated by 4 KMEP, SFPP, KMGP, and KMI, and DOES 101-150, and each of them, broke in a subdivision in 5 Tucson, Arizona, spraying gasoline more than fifty feet into the air, saturating five homes, and 6 contaminating soil and groundwater. 7 39. On or about April 29,2004,a pipeline owned/operating by KMEP,SFPP,KMGP,KMI and 8 DOES 101-150, and each of them, which transported gasoline, jet fuel and diesel to Chico and 9 Sacramento, California and Reno, Nevada experienced a rupture not discovered until April 30, 2004. 10 As a result, approximately 1,000 barrels or 42,000 gallons of fuel spilled into about 250 acres of Suisin I1 Marsh, a wetland in Northern California. Criticized for the delayed response, a managing agent of 12 KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each of them,replied"You can't cry wolf every 13 time you see an anomaly." 14 40.On or about November 22,2004,a pipeline owned/operated by KMEP,SFPP,KMGP,KMI, 15 and DOES 101-150, and each of them, transporting gasoline from Colton to Barstow, California into 16 Las Vegas, Nevada experienced a rupture in a rural area near Baker, California. California Highway 17 Patrol officers on nearby Interstate 15 noticed a strong odor and closed the freeway, which led to the 18 discovery of a fifty to sixty foot gasoline vapor geyser. 19 41. In the six years prior to November 9, 2004, MOUNTAIN CASCADE, and DOES 51-100, 20 and each of them, accumulated several safety violations, and were issued several citations from 21 California OSHA for workplace accidents,including but not limited to,the death a worker when a pipe 22 fell on him, the death of a worker when a crane he tried to operate without training collapsed and 23 smashed him against a pipe,.severe lung damage suffered by three workers when poisonous gases 24 overcame them in a sewer in which they were working, the personal injury of a worker when his leg 25 was crushed between two water trucks. MOUNTAIN CASCADE, and DOES 51-100, were also the 26 subject of several civil lawsuits involving wrongful death,as well as criminal prosecutions. pwFl� 27 42. On or about May 5,2005, California OSHA issued two Serious Willful Citations to KMEP ry et Lew 28 for violation of California Code of Regulations ("CCR") sections 1541(b)(1) and 1511(b) totaling i -10- SECOND AMENDED COMPLAINT FOR DAMAGES I $140,000;the evidence showed that KMEP committed an intentional and knowing violation and KMEP 2 was conscious of the fact that what it was doing constituted a violation,or was aware that a hazardous 3 condition existed and made no reasonable effort to eliminate the hazard. OSHA also issued one 4 Serious Citation to CAROLLO for violation of CCR section 1511(b) totaling $22,500, one Serious 5 Citation to MOUNTAIN CASCADE for violation of CCR section 1511(b) totaling $22,500, and one 6 Serious Citation to EBMUD for violation of CCR section 1511(b)totaling $6,750;.OSHA determined 7 with respect to CAROLLO,MOUNTAIN CASCADE,and EBMUD,there was a substantial probability 8 that death or serious physical harm could result from the condition which existed or from the practices, 9 operations or processes at the workplace. FIRST CAUSE OF ACTION 10 NEGLIGENCE AS AGAINST EBMUD AND DOES 1-50,INCLUSIVE 11 (By Plaintiff ROGER PAASCH) 12 43.Plaintiff incorporates each and every allegation contained in paragraphs 1 through 42 above, 13 as though fully set forth herein. 14 44. At all times relevant herein, EBMUD, and DOES 1-50, inclusive, and each of them, were 15 engaged in the business of planning, designing, owning, supervising, controlling and constructing the 16 Project. EBMUD had an employee(s) or representative(s) at the Project site to exercise exclusive 17 control and supervision of the Project,providing surveying control and quality assurance. 18 45.Because of the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline and 19 contents thereof,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline and the 20 Project,EBMUD and DOES 1-50,inclusive,and each of them,had a nondelegable duty under,among 21 other things,.OSHA regulations and California statutes and common law, to plan, design, own, 22 supervise,control,survey,and construct the Project in a safe manner to ensure the safety of the public 23 and those working on the Project,including ROGER PAASCH. 24 46.At all relevant times herein,EBMUD and DOES 1-50,inclusive,and each of them,breached 25 said nondelegable duty by,among other things: 26 • negligently and carelessly and recklessly hiring MOUNTAIN CASCADE and others _L-� 27 including KMEP, SFPP, KMGP, KMI, COMFORCE and DOES 51-150 and 201-250, and each of 28 '. -11- SECOND AMENDED COMPLAINT FOR DAMAGES I them,to perform the work on the Project,given,among other things,their poor safety records; 2 • negligently and carelessly and recklessly supervising and exercising retained control over 3 MOUNTAIN CASCADE and others including KMEP, SFPP, KMGP, KMI, COMFORCE, 4 CAROLLO,CDM,and DOES 51-150 and 201-250,and each of them,in the performance of their work 5 on the Project; 6 • negligently and carelessly and recklessly failing to correctly determine the location of the 7 Kinder Pipeline before allowing MOUNTAIN CASCADE and DOES 51-100 and 201-250,and each of 8 them,to excavate in the area of the EBMUD Pipeline and Kinder Pipeline. EBMUD was aware of the 9 incursion of the Kinder Pipeline into the Project as evidenced by the maps created by CAROLLO and 10 CDM, and reviewed by EBMUD. EBMUD reviewed the pot-holing data derived from the field and 11 failed to address the missing data in the vicinity of the offset and failed to request additional data. 12 • negligently and carelessly and recklessly pressuring and requiring MOUNTAIN CASCADE 13 and DOES 51-100 and 201-250, and each of them, to complete their work on the Project in a time 14 frame that was not feasible without endangering the safety of the public and those working on the 15 Project,including ROGER PAASCH; 16 • negligently and carelessly and recklessly failing to create, obtain and/or analyze the proper 17 design maps and field marking data,prior to allowing MOUNTAIN CASCADE and DOES 51-100 and 18 201-250,and each of them,to excavate near the EBMUD Pipeline and Kinder Pipeline; 19 • negligently and carelessly and recklessly failing to obtain the proper permits and other 20 authority to allow for work to be completed by MOUNTAIN CASCADE and DOES 51-150 and 201- 21 250,and each of them,in the vicinity of the Kinder Pipeline and EBMUD Pipeline; 22 • negligently and carelessly and recklessly creating a dangerous condition of public property 23 by performing work, or allowing work to be performed on its behalf, on the Project in the immediate 24 vicinity of the Kinder Pipeline as opposed to another location in the City of Walnut Creek, County of 25 Contra Costa where the Kinder Pipeline was not located; 26 • negligently and carelessly and recklessly failing to require KMEP, SFPP,KMGP,KMI, and �L � 27 DOES 101-150, and each of them, to relocate the Kinder Pipeline to a location away from the rsYLn+ 28 immediate vicinity of the EBMUD Pipeline and Project; 0 -12- SECOND AMENDED COMPLAINT FOR DAMAGES f� 1 • negligently and carelessly and recklessly failing to notify MOUNTAIN CASCADE and 2 DOES 51-100, and each of them, of concerns by other entities working on the Project or who worked 3 on the project(including among others Modern Continental Construction Co., KMEP, SFPP, KMGP, 4 KMI, and DOES 51-150)regarding the location of the Kinder Pipeline to the vicinity of the EBMUD 5 Pipeline and Project; 6 • negligently and carelessly and recklessly failing to proceed, or requiring MOUNTAIN 7 CASCADE,KMEP,SFPP,KMGP,KMI and DOES 51-150 and 201-250,and each of them, to proceed 8 with the work around the Kinder Pipeline and EBMUD Pipeline through safe and acceptable means; 9 • negligently and carelessly and recklessly.failing to conduct, or requiring MOUNTAIN 10 CASCADE, KMEP, SFPP, KMGP, KMI and DOES 51-150, and each of them, to conduct, daily 11 inspections by a competent individual prior to the start of work and as needed throughout the shift for 12 evidence of a situation that could result in dangerous and ultrahazardous condition, such as that which 13 resulted in the injuries to ROGER PAASCH;and 14 • negligently and carelessly and recklessly failing to remove, or requiring MOUNTAIN 15 CASCADE, KMEP, SFPP,KMGP, KMI and DOES 51-150,and each of them,to remove, individuals 16 working on the Project,including ROGER PAASCH,from the dangerous and ultrahazardous area until 17 necessary precautions had been taken to ensure the safety of those individuals, including ROGER 18 PAASCH. 19 47. EBMUD, and DOES 1-50, inclusive, and each of them, acted negligently, carelessly, and 20 recklessly so as to cause the personal injury to ROGER PAASCH, and to legally cause the injuries and 21 damages described below. 22 48. EBMUD, and DOES 1-50, inclusive, and each of them, knew, or in the exercise of 23 reasonable care should have.known, that the conditions constituted a extremely dangerous condition 24 and unreasonable risk of serious injury or death to those who would foreseeably be in the vicinity of 25 the Project or working on the Project, and that the danger would not be apparent to persons such as 26 ROGER PAASCH. There was a substantial probability that death or serious physical harm could result c Ma Flim 27 from the conditions. Under the circumstances of this case involving excavation next to the high- m A taw 28 pressure Kinder Pipeline,the conduct of EBMUD,and DOES 1-50,inclusive,and each of them,was an -13- SECOND AMENDED COMPLAINT FOR DAMAGES I extreme departure from the ordinary standard of conduct and constitutes gross negligence. 2 49.As a direct and legal result of the negligence and/or gross negligence of EBMUD,and DOES 3 1-50, inclusive, and each of them, ROGER PAASCH,was hurt and injured in his health, strength, and 4 activity.He suffered unjustifiable and substantial physical pain and mental suffering. 5 WHEREFORE,Plaintiff ROGER PAASCH,prays judgment against EBMUD, and DOES 1-50, 6 inclusive,and each of them,as hereinafter set forth. SECOND CAUSE OF ACTION 7 NEGLIGENCE AS AGAINST MOUNTAIN CASCADE AND DOES 51-100,INCLUSIVE 8 (By Plaintiff ROGER PAASCH) 9 50.Plaintiff incorporates each and every allegation contained in paragraphs I through 49 above, 10 as though fully set forth herein. 11 51. At all times relevant herein, MOUNTAIN CASCADE, and DOES 51-100, inclusive, and 12 each of them, was the general contractor or subcontractor hired by EBMUD for the Project and was 13 r engaged in the construction,supervision,operation,and control of the Project. 14 52.Because of the dangerous and ultrahazardous nature of the Project and Kinder Pipeline, and 15 the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, MOUNTAIN CASCADE 16 and DOES 51-100, inclusive, and each of them, had a nondelegable duty under, among other things, 17 OSHA regulations and California statutes and common law,to supervise,control,operate, survey, and 18 construct the Project in a safe manner to ensure the safety of the public and those working on the 19 Project,including ROGER PAASCH. 20 53.At all relevant times herein,MOUNTAIN CASCADE and DOES 51-100,inclusive,and each 21 of them,breached said nondelegable duty by,among other things: 22 • negligently and carelessly and recklessly hiring, training, retaining, and supervising its 23 employees,representatives, agents and independent contractors in the performance of the work on the 24 Project; 25 • negligently and carelessly and recklessly failing to correctly determine the location of the 26 Kinder Pipeline before excavating in the area,or allowing DOES 201-250 to excavate in the area,of the �w F� 27 EBMUD Pipeline and Kinder Pipeline, pursuant to, among other things, Government Code section 28 -14- SECOND 14SECOND AMENDED COMPLAINT FOR DAMAGES 1 4216.4. MOUNTAIN CASCADE was aware of the incursion of the Kinder Pipeline into the Project,by 2 way of the drawings and plans provided to MOUNTAIN CASCADE by EBMUD; 3 0 negligently and carelessly and recklessly attempting, through pressure by and requirements 4 of EBMUD and DOES 1-50,and each of them,to complete the work on the Project in a time frame that 5 was not feasible without endangering the safety of the public and those working on the Project, 6 including ROGER PAASCH; 7 negligently and carelessly and recklessly failing to create, obtain and/or analyze the proper 8 utility maps showing the location of the Kinder Pipeline, prior to excavating, or allowing DOES 201- 9 250,and each of them,to excavate,near the EBMUD Pipeline and Kinder Pipeline; 10 • negligently and carelessly and recklessly failing to obtain the proper permits and other 11 authority to allow for work to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline; 12 negligently and carelessly and recklessly failing to require KMEP, SFPP, KMGP and KMI, 13 and DOES 101-150, and each of them, to relocate the Kinder Pipeline to a location away from the 14 immediate vicinity of the Project; 15 • negligently and carelessly and recklessly failing to inquire as to concerns of other entities 16 working on the Project or who worked on the project (including among others Modern Continental 17 Construction Co., EBMUD, KMEP, SFPP, KMGP, KMI and DOES 1-50 and 101-150,and each of 18 them)regarding the location of the Kinder Pipeline to the vicinity of the Project and EBMUD Pipeline; 19 • negligently and carelessly and recklessly failing to proceed with the work around the Kinder 20 Pipeline and EBMUD Pipeline through safe and acceptable means, pursuant to, among other things, 21 Government Code section 4216.4; 22 • negligently and carelessly and recklessly entering into a mutual agreement with KMEP, 23 SFPP,KMGP,and KMI and DOES 101-150,and each of them,allowing for the use of power-operated 24 or power-driven excavating or boring equipment within the vicinity of the Kinder Pipeline and EBMUD 25 Pipeline; 26 • negligently and carelessly and recklessly failing to enter into a mutual agreement with aL-H- 27 KMEP, SFPP,KMGP, and KMI and DOES 101-150, and each of them, allowing for the use of power- n 28 operated or power-driven excavating or boring equipment within the vicinity of the Kinder Pipeline and -15- SECOND AMENDED COMPLAINT FOR DAMAGES f� I EBMUD Pipeline; 2 • negligently and carelessly and recklessly failing to conduct daily inspections, or requiring 3 others to conduct, by a competent individual prior to the start of work and as needed throughout the 4 shift for evidence of a situation that could result in a dangerous and ultrahazardous condition, such as 5 the condition resulting in injury to ROGER PAASCH; 6 • negligently and carelessly and recklessly failing to remove, or requiring others to remove, 7 individuals working on the Project, including ROGER PAASCH, from the dangerous and 8 ultrahazardous area until necessary precautions had been taken to ensure the safety of those 9 individuals,including ROGER PAASCH; 10 • negligently and carelessly and recklessly failing to timely contact Underground Service Alert 11 prior to excavating,or allowing excavation,near the Kinder Pipeline and EBMUD Pipeline,pursuant to, 12 among other things,Government Code section 4216.2; 13 • negligently and carelessly and recklessly failing to timely notify Underground Service Alert 14 when the field markings,if any,for the Kinder Pipeline were no longer reasonably visible; 15 • negligently and carelessly and recklessly failing to notify Underground Service Alert of 16 KMEP, SFPP, KMGP, and KMI's, and DOES 101-150, and each of them, failure to locate and field 17 mark the Kinder Pipeline prior to excavation; 18 • negligently and carelessly and recklessly failing to obtain an inquiry identification number 19 from Underground Service Alert prior to commencing or allowing excavation near the Kinder Pipeline 20 and EBMUD Pipeline pursuant to,among other things,Government Code section 4216.2;and 21 • negligently and carelessly and recklessly failing to obtain a revalidation of the inquiry 22 identification number from Underground Service Alert after said number expired pursuant to, among 23 other things,Government Code section 4216.2. 24 54. The tortuous conduct alleged above by MOUNTAIN CASCADE, and DOES 101-150, 25 inclusive and each of them, was, among other things, negligent, careless, reckless, grossly negligent 26 and/or despicable, with the despicable conduct being carried on by MOUNTAIN CASCADE, and aL—F— 27 DOES 51-150, inclusive and each of them, with a willful and conscious disregard of the rights and/or n m haw 28 safety of others, including but not limited to ROGER PAASCH. Among other things, MOUNTAIN -16- SECOND AMENDED COMPLAINT FOR DAMAGES I CASCADE, and DOES 51-150, inclusive, and each of them, was aware of the probable dangerous 2 consequences of its conduct and willfully and deliberately failed to avoid those consequences, which 3 resulted in the personal injuries to ROGER PAASCH. 4 55. MOUNTAIN CASCADE, and DOES 51-150, inclusive, and each of them, acted so as to 5 cause the personal injury of ROGER PAASCH, and to legally cause the injuries and damages 6 described below. 7 56. MOUNTAIN CASCADE,and DOES 51-150, inclusive, and each of them, knew, or in the 8 exercise of reasonable care should have known,that the conditions constituted a extremely dangerous 9 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the 10 vicinity of the Project or working on the Project, and that the danger would not be apparent to persons 11 such as ROGER PAASCH. MOUNTAIN CASCADE,and DOES 51-150,inclusive,and each of them, 12 willfully and deliberately failed to avoid these consequences or protect others, including ROGER 13 PAASCH, from these consequences. Under the circumstances of this case involving excavation next -� 14 to the high-pressure Kinder Pipeline, the conduct of MOUNTAIN CASCADE, and DOES 51-150, 15 inclusive, and each of them, was an extreme departure from the ordinary standard of conduct and 16 constitutes gross negligence,malice,and oppression. 17 57. As a direct and legal result of the conduct of MOUNTAIN CASCADE, and DOES 51-150, 18 inclusive, and each of them, ROGER PAASCH, was hurt and injured in his health, strength, and 19 activity.He suffered unjustifiable and substantial physical pain and mental suffering. 20 58.The above-alleged acts of MOUNTAIN CASCADE,and DOES 51-150,inclusive,and each 21 of them, were despicable, willful, wanton, malicious, oppressive, and/or fraudulent, and justify an 22 award of punitive damages. At all times mentioned herein, MOUNTAINCASCADE, its employees, 23 agents,representatives, independent contractors, and DOES 51-150,inclusive, and each of them were 24 guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the rights of ROGER 25 PAASCH. Given the dangerous and ultrahazardous nature of the work performed on the Project, the 26 Kinder Pipeline, and the close proximity of the Kinder Pipeline to the EBMUD Pipeline,MOUNTAIN 27 CASCADE, its agents, employees, independent contractors, representatives, and DOES 51-150, 28 inclusive,and each of them,performed work on the Project with a reckless indifference and willful and -17- SECOND AMENDED COMPLAINT FOR DAMAGES I conscious disregard for the rights of ROGER PAASCH. 2 59. Plaintiff is entitled to punitive damages against MOUNTAIN CASCADE, and DOES 51- . 3 150,.inclusive, and each of them, as corporate defendants because an officer, director or managing 4 agent thereof had advance knowledge of the unfitness of its employees and employed or retained them 5 with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful conduct 6 of its agents,employees, representatives,independent contractors and DOES 51-150 and 201-250,and 7 each of them,who were acting as an officer, director or managing agent of MOUNTAIN CASCADE, 8 and DOES 51-100 and 201-250, and each of them, and which officer, director or managing agent was 9 personally guilty of oppression,fraud and/or malice. 10 WHEREFORE,Plaintiff,ROGER PAASCH,prays judgment against MOUNTAIN CASCADE, 11 and DOES 51-150,inclusive,and each of them,as hereinafter set forth. 12 THIRD CAUSE OF ACTION NEGLIGENCE AS AGAINST KMEP,SFPP,KMGP,KMI AND DOES 101-150,INCLUSIVE 13 (By Plaintiff ROGER PAASCH) (� 14 60.Plaintiff incorporates each and every allegation contained in paragraphs 1 through 59 above, 15 as though fully set forth herein. 16 61.At all times relevant herein,KMEP,as a limited partnership,SFPP,a limited partnership and 17 operating partnership of KMEP, KMGP as the general partner of KMEP, and KMI as the parent 18 corporation and owner of KMGP, and DOES 101-150, inclusive, and each of them, were the owners 19 and operators of the Kinder Pipeline. 20 62.Because of the dangerous and ultrahazardous nature of the Project and the Kinder Pipeline, 21 and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, KMEP, SFPP, KMGP 22 and KMI, and DOES 101-150, inclusive, and each of them, had a nondelegable duty under, among 23 other things, OSHA regulations and California statutes and common law, to own, supervise, control, 24 25 survey, and operate the Kinder Pipeline in a safe manner to ensure the safety of the public and those working on the Project,including ROGER PAASCH. 26 63.At all relevant times herein,KMEP,SFPP,KMGP,and KMI, and DOES 101-150,inclusive, sem. 27 and each of them,breached said nondelegable duty by,among other things: 28 f -18- SECOND AMENDED COMPLAINT FOR DAMAGES I • negligently and carelessly and recklessly hiring, training, retaining, and supervising its 2 employees, agents, representatives, and independent contractors, including COMFORCE, in the 3 performance of the work on the Kinder Pipeline in relation to the Project, including but not limited to 4 the determination of the location of the Kinder Pipeline before allowing EBMUD, MOUNTAIN 5 CASCADE,and DOES 1-100 and 201-250,and each of them,to excavate and work in the area of the 6 EBMUD Pipeline and Kinder Pipeline; 7 • negligently and carelessly and recklessly failing to create, obtain and/or analyze the proper 8 utility maps, plans and drawings showing the location of the Kinder Pipeline, prior to allowing . 9 EBMUD,MOUNTAIN CASCADE,and DOES 1-100 and 201-250,and each of them,to excavate and 10 work in the area of the EBMUD Pipeline and Kinder Pipeline; 11 • negligently and carelessly and recklessly failing to obtain the proper permits and other 12 authority to allow for work to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline; 13 • negligently and carelessly and recklessly failing to locate and field.mark the location of the 14 Kinder Pipeline prior to the excavation by EBMUD, MOUNTAIN CASCADE and DOES 1-100 and 15 201-250, inclusive, and each of them, in violation of, among other things, Government Code section 16 4216.3; 17 • negligently and carelessly and recklessly failing to relocate the Kinder Pipeline to a location 18 away from the immediate vicinity of the Project and EBMUD Pipeline; 19 • negligently and carelessly and recklessly failing to address the concerns of entities working 20 on the Project or who worked on the project (including among others Modern Continental 21 Construction Co., EBMUD, and DOES 1-50, and each of them)regarding the location of the Kinder 22 Pipeline to the vicinity of the EBMUD Pipeline, and failing to inform MOUNTAIN CASCADE and 23 DOES 51-100 and 201-250,and each of them,of these concerns; 24 • negligently and carelessly and recklessly entering into a mutual agreement with 25 MOUNTAIN CASCADE,EBMUD and DOES 1-100 and 201-250,and each of them,allowing the use 26 of power-operated or power-driven excavating or boring equipment within the vicinity of the Kinder 27 Pipeline and Project;and 28 • negligently and carelessly and recklessly failing to inspect,or failing to inspect as frequently -19- SECOND AMENDED COMPLAINT FOR DAMAGES l� I as necessary,the Kinder Pipeline during work on the Project where,through contact with EBMUD and 2 others (including Modern Continental Construction, EBMUD, and DOES 1-100, and each of them,) 3 KMEP, SFPP,KMGP and KMI, and DOES 101-150, and each of them,knew or should have known, 4 that the Kinder Pipeline could be damaged by excavation work for the Project. 5 64. The ortuous conduct alleged above by KMEP, SFPP, KMGP, KMI, and DOES 101-150, 6 inclusive and each of them, was, among other things, negligent, careless, reckless, grossly negligent 7 and/or despicable, with the despicable conduct being carried on by KMEP, SFPP, KMGP, KMI, and 8 DOES 101-150,inclusive and each of them,with a willful and conscious disregard of the rights and/or 9 safety of others, including but not limited to ROGER PAASCH. Among other things, KMEP, SFPP, 10 KMGP,KMI, and DOES 101-150, inclusive, and each of them, was aware of the probable dangerous 11 consequences of its conduct and willfully and deliberately failed to avoid those consequences, which 12 resulted in the personal injuries of ROGER PAASCH. 13 65.KMEP, SFPP,KMGP,and KMI,and DOES 101-150, inclusive,and each of them, acted so `. 14 as to cause the personal injury of ROGER PAASCH, and to legally cause the injuries and damages 15 described below. 16 66.KMEP, SFPP,KMGP,and KMI,and DOES 101-150,inclusive,and each of them,knew,or 17 in the exercise of reasonable care should have known, that the conditions constituted an extremely 18 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably 19 be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,and that the danger 20 would not be apparent to those persons,such as ROGER PAASCH. KMEP, SFPP,KMGP,KMI,and 21 DOES 101-150, inclusive, and each of them, willfully and deliberately failed to avoid these 22 consequences or protect others, including ROGER PAASCH, from these consequences. Under the 23 circumstances of this case involving excavation next to the high-pressure Kinder Pipeline,the conduct 24 of KMEP, SFPP, KMGP, and KMI, and DOES 101-150,inclusive, and each of them, was an extreme 25 departure from the ordinary standard of conduct, and constitutes gross negligence, malice, and 26 oppression. z lar Firm 27 67.As a direct and legal result of the alleged conduct of KMEP, SFPP, KMGP, and KMI, and nWL- 28 DOES 101-150, inclusive, and each of them, ROGER PAASCH, was hurt and injured in his health, -20- SECOND 2aSECOND AMENDED COMPLAINT FOR DAMAGES I strength,and activity.He suffered unjustifiable and substantial physical pain and mental suffering. 2 68. As a further direct and legal result of the alleged conduct of KMEP, SFPP, KMGP, and 3 KMI,and DOES 101-150,inclusive, and each of them, ROGER PAASCH was hurt and injured in his 4 health, strength, and activity. He suffered unjustifiable and substantial physical pain and mental 5 suffering. The above-alleged acts of KMEP, SFPP, KMGP, and KMI, and DOES 101-150, inclusive, 6 and each of them, were willful, wanton, malicious, oppressive, despicable, and/or fraudulent, and 7 justify an award of punitive damages. At all times mentioned herein,KMEP, SFPP,KMGP, and KMI, .8 its employees, agents, representatives, independent contractors, and DOES 101-150, inclusive, and 9 each of them were guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the 10 rights of ROGER PAASCH. Given the dangerous and ultrahazardous nature of the work performed on 11 the Project,the Kinder Pipeline,and the close proximity of the Kinder Pipeline to the EBMUD Pipeline, 12 KMEP, SFPP, KMGP, and KMI, its agents, employees, independent contractors, representatives, and 13 DOES 101-150,inclusive,and each of them,performed work on the Project with a reckless indifference I 14 and willful and conscious disregard for the rights of ROGER PAASCH. 15 69. Plaintiff is entitled to punitive damages against KMEP, SFPP,KMGP,and KMI,and DOES 16 101-150, inclusive,and each of them,as corporate defendants because an officer,director or managing 17 agent thereof had advance knowledge of the unfitness of its employees and employed or retained them 18 with a conscious disregard of the rights or'safety of others,authorized or ratified the wrongful conduct 19 of its agents, employees, representatives, independent contractors, who were acting as an officer, 20 director or managing agent of KMEP, SFPP,KMGP,and KMI,and DOES 101-150, and each of them, 21 and which officer,director or managing agent was personally guilty of oppression,fraud and/or malice. 22 WHEREFORE, Plaintiff ROGER;PAASCH, prays judgment against KMEP, SFPP, KMGP, 23 and KMI,and DOES 101-150,inclusive,and each of them,as hereinafter set forth. 24 /// 25 FOURTH CAUSE OF ACTION NEGLIGENCE 26 AS AGAINST COMFORCE AND DOES 101-150,INCLUSIVE 27 (By Plaintiff ROGER PAASCH) ' /6 at lar 28 70.Plaintiff incorporates each and every allegation contained in paragraphs 1 through 69 above, -21- SECOND AMENDED COMPLAINT FOR DAMAGES I as though fully set forth herein. 2 71.Because of the dangerous and ultrahazardous nature of the Project and the Kinder Pipeline, 3 and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, COMFORCE, and 4 DOES 101-150, inclusive, and each of them, had a nondelegable duty under, among other things, 5 OSHA regulations and California statutes and common law, to own, supervise, control, survey, and 6 operate the Kinder Pipeline in a safe manner to ensure the safety of the public and those working on the 7 Project,including ROGER PAASCH. 8 72.At all relevant times herein,COMFORCE,and DOES 141-150, inclusive,and each of them, 9 breached said nondelegable duty by,among other things: 10 • negligently and carelessly and recklessly hiring, training, retaining, and supervising its 11 employees,agents,representatives,and independent contractors in the performance of the work on the 12 Kinder Pipeline in relation to the Project, including but not limited to the determination of the location 13 of the Kinder Pipeline before allowing EBMUD, MOUNTAIN CASCADE, and DOES 1-100 and 201- 14 250,and each of them,to excavate and work in the area of the EBMUD Pipeline and Kinder Pipeline; 15 • negligently and carelessly and recklessly failing to create, obtain and/or analyze the proper 16 utility maps, plans and drawings showing the location of the Kinder Pipeline, prior to allowing 17 EBMUD,MOUNTAIN CASCADE,and DOES 1-100 and 201-250, and each of them, to excavate and 18 work in the area of the EBMUD Pipeline and Kinder Pipeline; 19 • negligently and carelessly and recklessly failing to obtain the proper permits and other 20 authority to allow for work to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline; 21 • negligently and carelessly and recklessly failing to locate and field mark the location of the 22 Kinder Pipeline prior to the excavation by EBMUD, MOUNTAIN CASCADE and DOES 1-100 and 23 201-250, inclusive, and each of them, in violation of, among other things, Government Code section 24 4216.3;and 25 • negligently and carelessly and recklessly failing to inspect,or failing to inspect as frequently 26 as necessary,the Kinder Pipeline during work on the Project where,through contact with EBMUD and awe 27 others (including Modern Continental Construction, EBMUD, and DOES 1-100, and each of them,) nat uw 28 COMFORCE and DOES 101-150, and each of them, knew or should have known, that the Kinder -22- SECOND AMENDED COMPLAINT FOR DAMAGES I Pipeline could be damaged by excavation work for the Project. 2 73. The tortious conduct alleged above by COMFORCE, and DOES 101-150, inclusive and 3 each of them, was, among other things, negligent, careless, reckless, grossly negligent and/or 4 despicable, with the despicable conduct being carried on by COMFORCE, and DOES 101-150, 5 inclusive and each of them,with a willful and conscious disregard of the rights and/or safety of others, 6 including but not limited to ROGER PAASCH. Among other things, COMFORCE, and DOES 101- 7 150, inclusive, and each of them, was aware of the probable dangerous consequences of its conduct 8 and willfully and deliberately failed to avoid those consequences,which resulted in the personal injuries 9 of ROGER PAASCH. 10 74. COMFORCE, and DOES 101-150, inclusive, and each of them, acted so as to cause the 11 personal injury of ROGER PAASCH,and to legally cause the injuries and damages described below. 12 75. COMFORCE,and DOES 101-150, inclusive, and each of them,knew, or in the exercise of 13 reasonable Care should have known, that the conditions constituted an extremely dangerous condition 14 and unreasonable risk of serious injury or death to those who would foreseeably be in the vicinity of or 15 working on the Project, Kinder Pipeline or EBMUD Pipeline, and that the danger would not be 16 apparent to those persons, such as ROGER PAASCH. COMFORCE, and DOES 101-150, inclusive, 17 and each of them, willfully and deliberately failed to avoid these consequences or protect others, 18 including ROGER PAASCH, from these consequences. Under the circumstances of this case 19 involving excavation next to the high-pressure Kinder Pipeline, the conduct of COMFORCE, and 20 DOES 101-150, inclusive, and each of them,was an extreme departure from the ordinary standard of 21 conduct,and constitutes gross negligence,malice,and oppression. 22 76. As a direct and legal result of the alleged conduct of COMFORCE, and DOES 101-150, 23 inclusive, and each of them, ROGER PAASCH was hurt and injured in his health, strength, and 24 activity.He suffered unjustifiable and substantial physical pain and mental suffering. 25 77. The above-alleged acts of COMFORCE, and DOES 101-150, inclusive, and each of them, 26 were willful, wanton, malicious, oppressive, despicable, and/or fraudulent, and justify an award of 27 punitive damages. At all times mentioned herein,COMFORCE,its employees,agents,representatives, nb+u 28 independent contractors, and DOES 101-150, inclusive, and each of them were guilty of malice, -23- SECOND AMENDED COMPLAINT FOR DAMAGES I oppression, fraud,and/or a willful and conscious disregard for the rights of ROGER PAASCH. Given 2 the dangerous and ultrahazardous nature of the work performed on the Project, the Kinder Pipeline, 3 and the close proximity of the Kinder Pipeline to the EBMUD Pipeline, COMFORCE, its agents, 4 employees, independent contractors, representatives, and DOES 101-150, inclusive, and each of them, 5 performed work on the Project with a reckless indifference and willful and conscious disregard for the 6 rights of ROGER PAASCH. 7 78.Plaintiff is entitled to punitive damages against COMFORCE,and DOES 101-150,inclusive, 8 and each of them, as corporate defendants because an officer, director or managing agent thereof had 9 advance knowledge of the unfitness of its employees and employed or retained them with a conscious 10 disregard of the rights or safety of others, authorized or rarified the wrongful conduct of its agents, 11 employees, representatives, independent contractors, who were acting as an officer, director or 12 managing agent of COMFORCE,and DOES 101-150,and each of them, and which officer,director or 13 managing agent was personally guilty of oppression,fraud and/or malice. 14 WHEREFORE, Plaintiff ROGER PAASCH prays judgment against COMFORCE, and 15 DOES 101-150,inclusive,and each of them,as hereinafter set forth. FIFTH CAUSE OF ACTION 16 NEGLIGENCE AS AGAINST CAROLLO AND CDM AND DOES 1-50,INCLUSIVE 17 (By Plaintiff ROGER PAASCH) 18 79.Plaintiff incorporate each and every allegation contained in paragraphs 1 through 78 above, 19 as though fully set forth herein. 20 80.At all times relevant herein, CAROLLO and CDM, and DOES 1-50, inclusive, and each of 21 them,were engaged in the business of planning and designing the Project. CAROLLO and CDM, and 22 DOES 1-50,inclusive,and each of them,provided their drawings and plans to,among others,EBMUD. 23 81.Because of the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline and 24 contents thereof,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline and the 25 Project,CAROLLO and CDM,and DOES 1-50,inclusive,and each of them,had a nondelegable duty 26 . under, among other things, OSHA regulations and California statutes and common law, to plan and a� 27 design the Project in a safe manner to ensure the$afety of the public and those working on the Project, 28 -24- SECOND 24SECOND AMENDED COMPLAINT FOR DAMAGES I including ROGER PAASCH. 2 82. At all relevant times herein,CAROLLO and CDM,and DOES 1-50,inclusive, and each of 3 them breached said nondelegable duty by,among other things: 4 0 negligently and carelessly preparing and designing the plans and maps for the Project. 5 CAROLLO and CDM, and DOES 51-50, inclusive, and each of them, were aware of the incursion of 6 the Kinder Pipeline into the Project's path,as evidenced by their drawings; 7 negligently and carelessly failing to evaluate the need for re-design of the Project at the time 8 they, and each of them, became aware of and discovered the proximity of the Kinder Pipeline to the 9 proposed EBMUD pipeline,and the incursion of the Kinder Pipeline into the Project; 10 & negligently and carelessly failing to address missing data or request additional data after 11 reviewing the pot-holing data derived from field data in the vicinity of station 100+15; 12 0 with respect to CDM,and DOES 1-50,and each of them,negligently and carelessly entering 13 into a subcontract with CAROLLO regarding the portion of the Project at issue in this lawsuit; 14 with respect to CDM and DOES 1-50, and each of them, negligently and carelessly 15 supervising CAROLLO regarding its work on the portion of the Project at issue in this lawsuit. 16 83. The tortuous conduct alleged above by CAROLLO and CDM, and DOES 1-50, inclusive 17 and each of them,was,among other things,negligent,careless conduct being carried on by CAROLLO 18 and CDM, and DOES 1-50, inclusive. Among other things, CAROLLO and CDM, and DOES 1-50, 19 inclusive, and each of them, was aware of the probable dangerous consequences of its conduct and 20 negligently failed to avoid those consequences, which resulted in the personal injuries of ROGER 21 PAASCH. 22 84. CAROLLO and CDM, and DOES 1-50, inclusive, and each of them, acted so as to cause 23 the personal injury of ROGER PAASCH, and to legally cause the injuries and damages described 24 below. 25 85. CAROLLO and CDM, and DOES 1-50, inclusive, and each of them, knew, or in the 26 exercise of reasonable care should have known,that the conditions constituted an extremely dangerous aL"FYm 27 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the 28 vicinity of or working on the Project, Kinder Pipeline or EBMUD Pipeline, and that the danger would -25- SECOND AMENDED COMPLAINT FOR DAMAGES I not be apparent to those persons, such as ROGER PAASCH. CAROLLO and CDM, and DOES 1-50, 2 inclusive,and each of them,negligently failed to avoid these consequences or protect others, including 3 ROGER PAASCH,from these consequences. 4 86.As a direct and legal result of the alleged conduct of CAROLLO and CDM,and DOES 1-50, 5 inclusive, and each of them, ROGER PAASCH, was hurt and injured in his health, strength, and 6 activity. He suffered unjustifiable and substantial physical pain and mental suffering. 7 WHEREFORE,Plaintiff ROGER PAASCH prays judgment against CAROLLO and CDM, and 8 DOES 1-50,inclusive,and each of them,as hereinafter set forth. SIXTH CAUSE OF ACTION 9 STRICT LIABILITY AS AGAINST KMEP,SFPP,KMGP,KMI AND DOES 101-150,INCLUSIVE 10 (By Plaintiff ROGER PAASCH) 11 87. Plaintiff,incorporates each and every allegation contained in paragraphs I through 86 above, 12 as though fully set forth herein. 13 14 88.KMEP,SFPP,KMGP,and KMI,and DOES 101-150,inclusive,and each of them,designed, manufactured, sold, owned, controlled, operated, maintained, inspected, distributed, transported, 15 located, field marked, monitored, and managed the Kinder Pipeline and ultrahazardous and flammable 16 material contained therein. 17 89. Such activities create the existence of a high degree of risk of harm to persons, Iand and 18 personal property of others, create the likelihood that harm that results from it will be great, and are 19 inappropriate to the surrounding of residential neighborhoods, schools and highly-populated 20 communities where it was carried on,such that their value to such communities is outweighed by their 21 dangerous attributes. 22 90. Because of the dangerous and ultrahazardous nature and condition of the Kinder Pipeline 23 and contents contained therein, and the location of the Kinder Pipeline in the vicinity of the EBMUD 24 Pipeline and Project,KMEP, SFPP,KMGP and KMI,and DOES 101-150,inclusive,and each of them, 25 had a nondelegable duty to own, supervise, control, operate, manage, locate, field mark, monitor, and 26 inspect the Kinder Pipeline accurately and in a safe manner to ensure the safety of the public and those ¢L-w Firm 27 working on the Project,including ROGER PAASCH. 28 -26- SECOND AMENDED COMPLAINT FOR DAMAGES r� 1 91. As set forth above, ROGER PAASCH was injured while working on the Project and 2 EBMUD Pipeline. The activities of KMEP, SFPP, KMGP and KMI, and DOES 101-150, and each of 3 them, were a substantial factor in causing the injury of ROGER PAASCH. The harm to ROGER 4 PAASCH was of the kind that would be anticipated as a result of the risk created by owning, 5 supervising, controlling, operating, managing, locating, field marking, monitoring, and inspecting the 6 Kinder Pipeline through a residential neighborhood, near a school and through a highly-populated 7 community. 8 92.KMEP, SFPP, KMGP, and KMI, and DOES 101-150, inclusive, and each of them, caused 9 the personal injury of ROGER PAASCH,and legally caused the injuries and damages described below. 10 93. As a direct and legal result of the dangerous and ultrahazardous conditions designed, 11 manufactured, sold, owned, controlled, operated, maintained, inspected, distributed, transported , 12 located, field marked, monitored, and managed by KMEP, SFPP, KMGP, and KMI, and DOES 101- 13 150, inclusive, and each of them, ROGER PAASCH,was hurt and injured in his health, strength,and i� 14 activity. He suffered unjustifiable and substantial physical pain and mental suffering. 15 94. The above-alleged acts of KMEP, SFPP, KMGP, and KMI, and DOES 101-150, inclusive, 16 and each of them, were willful, wanton, malicious, despicable, oppressive, and/or fraudulent, and 17 justify an award of punitive damages. At all times mentioned herein,KMEP, SFPP,KMGP,and KMI, 18 its employees, agents, representatives, independent contractors, and DOES 101-150, inclusive, and 19 each of them were guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the 20 rights'of ROGER PAASCH. Given the dangerous and ultrahazardous nature of the work performed on 21 the Project,the Kinder Pipeline,and the close proximity of the Kinder Pipeline to the EBMUD Pipeline, 22 KMEP, SFPP, KMGP, and KMI, its agents, employees, independent contractors, representatives, and .23 DOES 101-150,inclusive,and each of them,performed work on the Project with a reckless indifference 24 and willful and conscious disregard for the rights of ROGER PAASCH. 25 95..Plaintiff is entitled to punitive damages against KMEP,SFPP,KMGP,and KMI,and DOES 26 101-150, inclusive, and each of them,as corporate defendants because an officer,director or managing =�--F 27 agent thereof had advance knowledge of the unfitness of its employees and employed or retained them 28 with a conscious disregard of the rights or safety of others,authorized or ratified the wrongful conduct -27- SECOND AMENDED COMPLAINT FOR DAMAGES I of its agents, employees, representatives, independent contractors who were acting as an officer, 2 director or managing agent of KMEP, SFPP,KMGP, and KMI,and DOES 101-150,and each of them, 3 and which officer,director or managing agent was personally guilty of oppression,fraud and/or malice. 4 WHEREFORE,Plaintiff ROGER PAASCH prays judgment against KMEP, SFPP,KMGP,and 5 KMI,and DOES 101-150,inclusive,and each of them,as hereinafter set forth. SEVENTH CAUSE OF ACTION 6 PREMISES LIABILITY AS AGAINST MOUNTAIN CASCADE,AND DOES 51-100,INCLUSIVE 7 (By Plaintiff ROGER PAASCH) 8 96.Plaintiff incorporates each and every allegation contained in paragraphs 1 through 95 above, 9 as though fully set forth herein. 10 97.MOUNTAIN CASCADE,and DOES 51-100,and each of them, occupied and/or controlled 11 the premises in which the EBMUD Pipeline was being excavated. 12 98.The real property contained a hidden condition or conditions which created an unreasonable 13 risk of harm to the public and those working on the Project,including ROGER PAASCH. ' 14 99. MOUNTAIN CASCADE, and DOES 51-100, and each of them, knew or should have 15 known about such condition or conditions, and failed to make reasonable inspections to discover such 16 condition or conditions. 17 100.MOUNTAIN CASCADE, and DOES 51-100, and each of them, failed to take reasonable 18 precautions to protect against the condition and the harm likely to result therefrom, and/or give 19 adequate warning to those likely to be injured by the condition. 20 101.As a direct and legal result of the conduct of MOUNTAIN CASCADE,and DOES 51-100, 21 inclusive, and each of them, ROGER PAASCH was hurt and injured in his health, strength, and 22 activity. He suffered unjustifiable and substantial physical pain and mental suffering. 23 102.As a further direct and legal result of the conduct of MOUNTAIN CASCADE, and DOES 24 51-100, inclusive, and each of them, ROGER PAASCH was hurt and injured in his health, strength, 25 and activity. He suffered unjustifiable and substantial physical pain and mental suffering. The above- 26 alleged acts of MOUNTAIN CASCADE,and DOES 51-100, inclusive,and each of them, were willful, �L-Fl- 27 wanton,malicious oppressive,despicable,and/or fraudulent and justify an award of punitive damages. ,0 28 � -28- SECOND AMENDED COMPLAINT FOR DAMAGES I At all times mentioned herein, MOUNTAIN CASCADE, its employees, agents, representatives, 2 independent contractors, and DOES 51-100, inclusive, and each of.them were guilty of malice, 3 oppression, fraud, and/or a willful and conscious disregard for the rights of ROGER PAASCH. Given 4 the dangerous and ultrahazardous nature of the work performed on the Project, the Kinder Pipeline, 5 and the close proximity of the Kinder Pipeline to the EBMUD Pipeline, MOUNTAIN CASCADE, its 6 agents, employees, independent contractors,representatives, and DOES 51-100, inclusive, and each of 7 them, performed work on the Project with a reckless indifference and willful and conscious disregard 8 for the rights of ROGER PAASCH. 9 103. Plaintiff is entitled to punitive damages against MOUNTAIN CASCADE, and DOES 51- 10 100, inclusive, and each of them, as corporate defendants because an officer, director or managing 1 I agent thereof had advance knowledge of the unfitness of its employees and employed or retained them 12 with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful conduct 13 of its agents, employees, representatives, independent contractors and DOES 51-100, and each of 14 them, who were acting as an officer, director or managing agent of MOUNTAIN CASCADE and 15 DOES 51-100, and each of them, and which officer, director or managing agent was personally guilty 16 of oppression,fraud and/or malice. 17 WHEREFORE, Plaintiff ROGER PAASCH prays judgment against MOUNTAIN CASCADE, 18 and DOES 51-100,inclusive,and each of them,as hereinafter set forth. 19 20 EIGHTH CAUSE OF ACTION 21 WILLFUL MISCONDUCT AGAINST KMEP, SFPP, KMGP, KMI,AND DOES 51-150, INCLUSIVE 22 (By Plaintiff ROGER PAASCH) 23 104.Plaintiffs,and each of them,incorporate each and every allegation contained in 24 paragraphs 1 through 103 above,as though fully set forth herein. 25 105.KMEP,SFPP,KMGP,KMI,and DOES 51-150, and each of them,knew that construction 26 workers were excavating a trench in connection with the Project, in accordance with the written _L-Fim. 27 contract between EBMUD and MOUNTAIN CASCADE,and DOES I A 00,and each of them. KMEP, 28 ` -29- SECOND AMENDED COMPLAINT FOR DAMAGES I SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that the route of the EBMUD Pipeline 2 was to be parallel to,east of and above the Kinder Pipeline,which was owned and operated by KMEP, 3 SFPP,KMGP,KMI and DOES 51-150,and each of them. 4 106. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, were the operators or 5 owners of a subsurface installation within the meaning of Government Code section 4216. 6 107. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that EBMUD's 7 contract with MOUNTAIN CASCADE, and DOES 51-100, and each of them, required compliance 8 with all applicable statutes,laws,regulations,orders and standards. 9 108. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that to guard 10 against extreme risk of injury to persons and property, including those working on the Project such as 11 Plaintiff ROGER PAASCH,the contract between EBMUD and MOUNTAIN CASCADE, and DOES 12 51-100, specified, among other things, that work along South Broadway in Walnut Creek, California 13 was adjacent to the Kinder Pipeline, that construction activities should be coordinated with, among ( 14 others, Larry Hosler, manager pipeline maintenance and Roy Bridge, manager pipeline safety, for 15 KMEP,SFPP,KMGP,KMI,and DOES 51-150,and MOUNTAIN CASCADE. 16 109. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that the Kinder 17 Pipeline to be properly located in advance of excavation to avoid any physical contact with the Kinder 18 Pipeline as a result of any construction activities. 19 110. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, were aware of their 20 respective responsibilities under, among other things, the Government Code and Code of Regulations 21 to properly plan and design the Project and determine the location of and properly field mark the 22 Kinder Pipeline to allow for safe excavation in the vicinity thereof. 23 111. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that operating, 24 locating, field marking, and excavating in the vicinity of the Kinder Pipeline created the existence of a 25 special, high degree of risk of harm to persons and property, including those working on the Project 26 with welding tools, such as Plaintiff ROGER PAASCH. KMEP, SFPP, KMGP, KMI, and DOES 51- rt law Fhm 27 150, and each of them, knew that Matamoros Pipeline, Inc., and its employees including Plaintiff AWL- 28 ROGER PAASCH,were using welding instruments to weld the EBMUD Pipeline,which considerably -30- SECOND AMENDED COMPLAINT FOR DAMAGES I increased the extreme risk of harm due to highly flammable nature of the contents of the Kinder 2 Pipeline. 3 112. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that those 4 working on the Project, including plaintiff ROGER PAASCH, would rely on, among others, KMEP, 5 SFPP, KMGP, KMI, and DOES 51-150, and each of them, for their safety to properly design, plan, 6 locate, field mark, and excavate in the vicinity of the Kinder Pipeline in compliance with state laws, 7 statutes,orders,and regulations. 8 113.KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,has experienced several 9 accidents relating to its pipelines,including but not Iimited to those incidents referenced in the General 10 Allegations set forth above. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, have 11 experienced at least 44 accidents relating to its pipelines since January 1,2003. Of these 44 accidents, at 12 least 14 resulted in releases of more than five barrels of refined petroleum products into the surrounding 13 environment. At least 8 known accidents resulting in releases into the surrounding environment have 14 occurred since April 27, 2004. All 8 of these accidents occurred in or near high consequence areas (as 15 defined in 49 C.F.R. section 195.450)and/or major transportation corridors. Of these 8 accidents, 5 are 16 attributed to outside force damage (e.g. third party damage caused by an excavator or other source, 17 damage caused during construction, etc.) At least 3 of these 5 instances went unaddressed by KMEP, 18 SFPP,KMGP,KMI,and DOES 51-150, and each of them,for an indeterminate period despite internal 19 inspection tool runs conducted on the pipelines prior to the accidents.Approximately 50%of reported 20 hazardous liquid pipeline accidents suffered by KMEP, SFPP, KMGP, KMI, and DOES 51-150, and 21 each of them,between 1998 and 2003 were caused by outside forces. 22 114. According to the United States Department of Transportation's "Pipeline and Hazardous 23 Materials Safety Administration,"the recent accidents of KMEP, SFPP, KMGP, KMI, and DOES 51- 24 150, and each of them, indicate a "widespread failure to adequately detect and address the effects of 25 outside force damage and corrosion.This failure has systematically affected the integrity of the Pacific 26 Operations Unit." This pattern and practice of KMEP, SFPP, KMGP, KMI, and DOES 51-150, and �L.Fi- 27 each of them,is one to put profits over people, in that KMEP, SFPP,KMGP,KMI,and DOES 51-150, nML— 28 and each of them,believe that few adverse consequences will result from its failures to avoid accidents -31- SECOND AMENDED COMPLAINT FOR DAMAGES I involving the pipelines.This systematic failure flows from the top on down through the corporate levels 2 of KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, and includes those decision 3 making individuals including the officers, directors and managing agents of KMEP, SFPP, KMGP, 4 KMI,and DOES 51-150,and each of them. 5 115. KMEP, SFPP,KMGP,KMI, and DOES 51-150, and each of them, additionally knew that 6 in the six years prior to November 9, 2004,MOUNTAIN CASCADE, and DOES 51-100, and each of 7 them,accumulated several safety violations,and was issued several citations from California OSHA for 8 workplace accidents, including but not limited to,the death a worker when a pipe fell on him in March 9 of 2004,the death of a worker when a crane he tried to operate without training collapsed and smashed 10 him against a pipe, severe lung damage suffered by three workers when poisonous gases overcame 11 them in a sewer in which they were working, and the personal injury of a worker when his leg was 12 crushed between two water trucks. KMEP, SFPP, KMGP,KMI, and DOES 51-150,and each of them, 13 additionally knew that MOUNTAIN CASCADE, and DOES 51-100, were also the subject of several :.� 14 civil lawsuits involving wrongful death,as well as criminal prosecutions. 15 116. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that the initial 16 contract with EBMUD was awarded to Modern Continental Co., which contract was terminated by 17 EBMUD. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that in or about 18 2003 or 2004,Modern Continental Co. was excavating for the EBMUD Pipeline and determined that a 19 segment of the Kinder Pipeline was approximately 13 feet from where it had been field marked by 20 KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each of them.Modern Continental Co.expressed 21 this concern to, among others, EBMUD, KMEP, SFPP, KMGP, KMI, COMFORCE, and DOES 1-50 22 and 101-150, and each of them. In addition, in or about August of 2003, EBMUD requested that 23 KMEP, SFPP, KMGP, KMI, and DOES 101-150, and each of them, relocate a section of the Kinder 24 Pipeline because it was, among other things, hard to locate and a hindrance to completion of the 25 Project.In or about early 2004,Modern Continental,EBMUD,and DOES 1-50,and each of them,were 26 extremely concerned about the location of the Kinder Pipeline because it was still in the way of the a .. 27 excavation for the EBMUD Pipeline and Project. Among others, Modern Continental, EBMUD, p al lsr 28 KMEP, SFPP,KMGP,KMI,and DOES 1-150,and each of them,discussed in early 2003 the location -32- SECOND AMENDED COMPLAINT FOR DAMAGES I of the Kinder Pipeline and how to continue working on the Project despite the location of the Kinder 2 Pipeline. 3 117. KMEP, SFPP, KMGP, KM1, and DOES 51-150, and each of them, knew that prior to 4 November 9, 2004, EBMUD awarded its contract to MOUNTAIN CASCADE, who advertises that it 5 "routinely take[s] on tough projects that our competitors shy away from and turn them into profit,"and 6 that the foundation of its success is built on its dedication to"knowledge,integrity,quality and superior 7 service."KMEP, SFPP, KMGP, KMI,and DOES 51-150, and each of them,knew that KMEP, SFPP, 8 KMGP, KMI and DOES 101-150, and each of them, had numerous recent accidents involving its 9 pipelines, and that MOUNTAIN CASCADE and DOES 51-100, and each of them, had numerous . 10 recent workplace injuries. 11 118.Because of the construction work in the direct vicinity of the high pressure Kinder Pipeline, 12 KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that it had to guard against the 13 extreme risk of injury to persons and/or property in the area, including those persons working on the 14 Project along with the general public. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of 15 them, knew that construction activities were to be coordinated with all parties participating in the 16 Project. 17 119. KMEP, SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew of the peril of an 18 explosion if the flammable liquids or gasses inside the Kinder.Pipeline escaped in the vicinity of the 19 construction of the EBMUD Pipeline where workers, including MIGUEL REYES, deceased, worked 20 with welding tools. KMEP, SFPP, KMGP,KMI, COMFORCE, and DOES 51-150, and each of them, 21 knew that the injuries of RAGER PAASCH, was a probable, as opposed to possible, result of that 22 danger, as plaintiff ROGER PAASCH,was working inside the EBMUD Pipeline using welding tools, 23 and had no means of making an easy or fast escape in the event of an explosion and thus would be 24 trapped inside the EBMUD Pipeline for a period of time. 25 120. At all relevant times herein, KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of 26 them, intentionally, knowingly, deliberately, and/or consciously failed to avoid the above referenced n�� 27 peril by,among other things: pKL- 28 • failing to hire, train, retain and supervise its employees, representatives, agents and -33- SECOND AMENDED COMPLAINT FOR DAMAGES I independent contractors with respect to the performance of the work on the Project. For example, 2 employees lacked the experience and knowledge to read the maps and drawings showing the location 3 of the Kinder Pipeline, and in fact, failed to even review such maps and drawings. KMEP, SFPP, 4 KMGP, KMI, and DOES 51-150, and each of them, failed to train its employees with respect to the 5 importance of reviewing and analyzing the necessary maps and drawings to determine the accurate 6 location of the Kinder Pipeline,and how to review and analyze such drawings and maps; 7 • failing to correctly determine the location of the Kinder Pipeline before allowing excavation 8 in the area of the EBMUD Pipeline and Kinder Pipeline,pursuant to,among other things,Government 9 Code section 4216.4.Among others,Mike Biggs,Peter Brooks, and Mark Presley failed to review and 10 analyze the maps and drawings, and instead relied on their visual observation that there was no tree in 11 the area of the Kinder Pipeline. In fact,the tree had been removed years prior but the roots still existed 12 and the offset of the Kinder Pipeline was present; 13 • failing to create, obtain and/or analyze the proper utility maps,plans and drawings showing 14 the location of the Kinder Pipeline,prior to allowing EBMUD, 15 • MOUNTAIN CASCADE,and DOES 1-100 and 201-250,and each of them, to excavate and 16 work in the area of the EBMUD Pipeline and Kinder Pipeline; 17 • failing to relocate the Kinder Pipeline to a location away from the immediate vicinity of the 18 Project and EBMUD Pipeline after concerns were previously brought forth by,among others, EBMUD 19 and Modern Continental regarding the location of the Kinder Pipeline to the EBMUD Pipeline and 20 Project. 21 • failing to address the concerns of entities working on the Project or who worked on the 22 project(including among others Modem Continental Construction Co., EBMUD,and DOES 1-50, and 23 each of them)regarding the location of the Kinder Pipeline to the vicinity of the EBMUD Pipeline, and 24 failing to inform MOUNTAIN CASCADE and DOES 51-100 and 201-250, and each of them, of these 25 concerns; 26 • falsely representing to MOUNTAIN CASCADE, EBMUD and others the location of the �L.F� 27 Kinder Pipeline,such that Mike Biggs,Mark Presley and Peter Brooks stated to EBMUD,MOUNTAIN 28 CASCADE,and others that the field marking was accurate,that excavators need only follow the field -34- SECOND 34SECOND AMENDED COMPLAINT FOR DAMAGES I marking devices to avoid conflict with the Kinder Pipeline and that additional locating and monitoring 2 was unnecessary. The Kinder Pipeline was not located where KMEP, SFPP, KMGP, KMI, and DOES 3 51-150,and each of them,represented it to be.Further,KMEP,SFPP,KMGP,KMI,and DOES 51-150, 4 and each of them, failed to locate and field mark the location which may be affected by the excavation 5 to the extent and degree of accuracy that the information was available either in their own records or 6 through standard locating techniques other than excavation. In fact, Mark Presley admitted that he 7 often did not even use drawings or maps,as he found them to be inaccurate.Mr.Presley stated that the 8 Kinder Pipeline only bent around tree roots, and since he saw no tree, the Kinder Pipeline did not 9 deviate from a straight path;and 10 falsely representing to MOUNTAIN CASCADE,EBMUD and others that they employed 11 properly trained and supervised personnel to locate and field mark the Kinder Pipeline. Among others, 12 both Mike Biggs, Mark Presley and Peter Brooks lacked the skills and experience necessary to 13 accurately read and interpret drawings and maps,and to actually know that the reading of drawings and !� 14 maps was crucial to locating the Kinder Pipeline. 15 121.The conduct alleged above by KMEP,SFPP,KMGP,KMI,and DOES 51-150,inclusive and 16 each of them was, among other things, despicable conduct being carried on with a willful and 17 conscious disregard of the rights and/or safety of others, including but not limited to Plaintiff ROGER 18 PAASCH. Among other things, KMEP, SFPP, KMGP, KMI, and DOES 101-150, inclusive, and each 19 of them, was aware of the probable dangerous consequences of its conduct and willfully and 20 deliberately failed to avoid those consequences, which resulted in the personal injuries and property 21 damage,and subsequent death of MIGUEL REYES,deceased. 22 122. When KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, made the 23 representations as set forth above,they knew them to be false,had no reasonable ground for believing 24 them to be true,and knew that they did not have the knowledge which they professed. 25 123.Although the representations were not.made directly to MIGUEL REYES,deceased,KMEP, 26 SFPP, KMGP, KMI, and DOES 51-150, and each of them, made the representations to MOUNTAIN ��- 27 CASCADE and others with the intent that such representations be relied upon in excavating the nauw 28 EBMUD Pipeline,plaintiff ROGER PAASCH is entitled to protection as he suffered property damage . -35- SECOND AMENDED COMPLAINT FOR DAMAGES r� I and physical injuries resulting from MOUNTAIN CASCADE'S and others justifiable reliance on the 2 representations that the Kinder Pipeline was properly marked. 3 124. Matamoras Pipeline, Inc., and its employees, including Plaintiff ROGER PAASCH, 4 justifiably relied on said representations that the workplace was safe from extreme risk of harm. As a 5 result, Plaintiff ROGER PAASCH was injured in his person and also sustained personal property 6 damage. 7 125.KMEP,SFPP,KMGP,and KMI,and DOES 51-150,inclusive,and each of them,knew,or in 8 the exercise of reasonable care should have known, that the conditions constituted an extremely 9 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably 10 be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,and that the danger 11 would not be apparent to those persons, such as Plaintiff ROGER PAASCH. KMEP, SFPP, KMGP, 12 KMI, and DOES 51-150, inclusive, and each of them, willfully and deliberately failed to avoid these 13 consequences or protect others, including MIGUEL REYES, deceased, from these consequences. 14 Under the circumstances of this case involving excavation next to the high-pressure Kinder Pipeline, 15 the conduct of KMEP, SFPP, KMGP, KMI, and DOES 51- 150, inclusive, and each of them, 16 constitutes malice,oppression and/or fraud. 17 126. As a direct and legal result of the alleged conduct of KMEP, SFPP, KMGP, and KMI, and 18 DOES 51-150, inclusive, and each of them, Plaintiff ROGER PAASCH, was hurt and injured in his 19 health, strength, and activity. He suffered unjustifiable and substantial physical pain and mental 20 suffering. 21 127. The above-alleged acts of KMEP, SFPP, KMGP, KMI, and DOES 51-150, inclusive, and 22 each of them,were willful,wanton,malicious,oppressive,despicable,and/or fraudulent,and justify an 23 award of punitive damages.At all times mentioned herein,KMEP, SFPP,KMGP, KMI,its employees, 24 agents,representatives, independent contractors, and DOES 51-150, inclusive, and each of them were 25 guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the rights of those 26 working on the EBMUD Pipeline, including MIGUEL REYES, deceased. Given the dangerous and �L-R- 27 ultra hazardous nature of the work performed on the Project, the Kinder Pipeline, and the close rsa� 28 proximity of the Kinder Pipeline to the EBMUD Pipeline, the false representations and conduct .of -36- SECOND AMENDED COMPLAINT FOR DAMAGES I KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, was despicable, malicious, 2 fraudulent, oppressive, and made with a conscious disregard for the safety of, among others, Plaintiff 3 ROGER PAASCH. 4 128. Plaintiff is entitled to punitive damages against KMEP, SFPP, KMGP, KMI, and DOES 51- 5 150, inclusive, and each of them, as corporate defendants because an officer, director or managing 6 agent thereof had advance knowledge of the unfitness of its employees, agents, representatives, or 7 independent contractors(including but not limited to Mike Biggs,Mark Presley and Peter Brooks)and 8 employed or retained them with a conscious disregard of the rights or safety of others, authorized or 9 ratified the wrongful conduct of its agents, employees, representatives, independent contractors and 10 DOES 51-150,and each of them,who were acting as an officer, director or managing agent of KMEP, 11 SFPP, KMGP, KMI, and DOES 51-150, and each of them, and which officer, director or managing 12 agent was personally guilty of oppression,fraud and/or malice.Among other things,an officer, director 13 or managing agent of KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, ratified the 14 conduct of its employees, agents, representatives or independent contractors by continuing to employ 15 them, failing to criticize, censure, reprimand, terminate, suspend or take other remedial action against 16 them, issuing press releases, interfering with attempts of the regulatory agencies including Cal-OSHA 17 to interview them,and providing them with legal counsel so as to defend their conduct. Furthermore, a 18 vice-president of operations and engineering of KMEP, SFPP, KMGP, KMI, and DOES 51-150, 19 inclusive, falsely stated in questions following the incident that"the workers had been provided maps 20 and should have been aware of the fuel pipeline's location."The press release issues by KMEP,SFPP, 21 KMGP, KMI, and DOES 51-150, inclusive, dated November 10, 2004 stated that defendants "do not 22 expect this incident will have significant adverse financial impact,"nor did it appear the incident "will 23 require major environmental clean-up." 24 129. Despite full knowledge of the consistent pattern and practice of conduct by its employees, 25 agents, representatives or independent contractors which led to regularly occurring pipeline accidents, 26 and despite full awareness of all dangers to human life and property associated with pipeline incidents, =L—F 27 KMEP, SFPP, KMGP, KMI, and DOES 51-150, inclusive, intentionally, deliberately and/or RNLsr 28 consciously failed to improve, update, revise, or change its ineffective safety policies and practices, ` -37- SECOND AMENDED COMPLAINT FOR DAMAGES I training of employees,and communication within the ranks of the corporation,which led directly to its 2 prior incidents and the incident Plaintiff ROGER PAASCH. 3 130. The above-described conduct of KMEP, SFPP, KMGP, KMI, and DOES 51-150, inclusive, 4 which includes intentional and conscious disregard of safety standards and acting in a manner 5 calculated to stonewall and/or deceive regulatory authorities for their own financial benefit was 6 despicable and carried on with a willful and conscious disregard for the rights and safety of others, 7 including Plaintiff ROGER PAASCH. 8 WHEREFORE, Plaintiff ROGER PAASCH, prays judgment against KMEP, SFPP, KMGP, 9 KMI,and DOES 51-150,inclusive,and each of them,as hereinafter set forth. NINTH CAUSE OF ACTION 10 WILLFUL MISCONDUCT AGAINST MOUNTAIN CASCADE,AND DOES 51-100,and 151-250,INCLUSIVE I I (By Plaintiff ROGER PAASCH) 12 131.Plaintiff,and each of them,incorporate each and every allegation contained in paragraphs I 13 through 130 above,as though fully set forth herein. 14 132.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that its workers 15 were excavating a trench for the EBMUD Pipeline,with the route of the EBMUD Pipeline being 16 generally parallel to the high-pressure Kinder Pipeline.MOUNTAIN CASCADE,and DOES 51-100, 17 and 151-250,inclusive,further knew that workers were working inside the EBMUD Pipeline while 18 using welding tools,which work was in close proximity to the excavation work. 19 133.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that it had to 20 guard against extreme risk of injury to persons and property,while digging near or in the vicinity of the 21 Kinder Pipeline.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that its 22 construction activities were to be coordinated with others working on the Project to ensure the safety of 23 all of those working on the Project.MOUNTAIN CASCADE,and DOES 51-100,and 151-250, 24 inclusive,knew of the requirements for notification of excavation,locating of,and excavation when 25 working near or in the vicinity of existing utilities,including but not limited to those requirements under 26 Government Code sections 4216.2 and 4216.4,and knew of the importance of reviewing and analyzing .LmF- 27 drawings and maps to determine the location of the Kinder Pipeline. 28 -38- SECOND AMENDED COMPLAINT FOR DAMAGES 1 134.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that EBMUD 2 terminated its prior contract with the initial general contractor(Modern Continental Construction Co.) 3 on the Project and that Modern Continental Construction Co.had previous expressed concerns to 4 EBMUD,KMEP, SFPP,KMGP,KMI,COMFORCE,and DOES 51-150,regarding the location of the 5 Kinder Pipeline with respect to the EBMUD Pipeline. 6 135.At all times relevant hereto,MOUNTAIN CASCADE,and DOES 51-100,and 151-250, 7 inclusive,represented and advertised that the foundation of its success is its"dedication to knowledge, 8 integrity,quality and superior service"and that it"routinely take(s)on tough projects that our 9 competitors shy away fr6m and turn them into profit." 10 136.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that it had 11 experienced several work related incidents in the past relating to a failure to abide by safety standards, 12 including at least two deaths in the last five years,with the most recent occurring in March of 2004 13 when a worker was crushed while unloading a pipe.Despite this knowledge,MOUNTAIN CASCADE, 14 and DOES 51-100,and 151-250,inclusive,knowingly employed the same supervisory employee whose 15 crew was responsible for that incident for the EBMUD Project.MOUNTAIN CASCADE,and DOES 16 51-100,and 151-250,were also the subject of several civil lawsuits involving wrongful death,as well as 17 criminal prosecutions. 18 137.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew of the peril of 19 an explosion if the flammable liquids or gasses inside the Kinder Pipeline escaped in the vicinity of the 20 construction of the EBMUD Pipeline where workers,including Plaintiff ROGER PAASCH,worked 21 with welding tools.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that the 22 injuries of Plaintiff ROGER PAASCH,was a probable,as opposed to possible,result of that danger,as 23 Plaintiff ROGER PAASCH,was working inside the EBMUD Pipeline using welding tools,and had no 24 means of making an easy or fast escape in the event of an explosion and thus would be trapped inside 25 the EBMUD Pipeline for a period of time. 26 138.MOUNTAIN CASCADE,and DOES 51400,and 151-250,inclusive,intentionally, 27 knowingly,deliberately,and/or consciously failed to avoid the above-referenced peril by,among other nMlaw 28 things: -39- SECOND AMENDED COMPLAINT FOR DAMAGES l� I • failing to hire, train, retain and supervise its employees, representatives, agents and 2 independent contractors with respect to the performance of the work on the Project. 3 • MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,failed to advise or train 4 its employees who operated power operated or power driven backhoes and other equipment on the 5 Project that the Kinder Pipeline was a high-pressure pipeline carrying flammable liquids.For instance,a 6 backhoe operator (David Bauer) who had dug across or within three feet of the Kinder Pipeline 7 approximately 10 days before the incident represented that he thought the placards warning of a Kinder 8 Pipeline in the right of way marked an abandoned petroleum line that was being removed. 9 MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, failed to train, instruct and 10 communicate with its employees of the meaning of the placards or field markings; 11 • failing to determine the location of the Kinder Pipeline through a review of maps and 12 drawings.For instance,Superintendent Sean Ross considered plans to be"guidelines"and "95%of the 13 time not accurate." Additionally, neither Sean Ross and Gene Im, foreman, reviewed any plans or 14 drawings prior to allowing excavation, rather they told the operators to dig in a straight line, even 15 though they knew that there was a bend in the Kinder Pipeline. Furthermore, the backhoe operator 16 (Greg Berry) who struck the Kinder Pipeline was never shown and never reviewed any maps or 17 drawings prior to the incident with respect to the location of the Kinder Pipeline; 18 • failing to determine the location of the Kinder Pipeline by excavating with hand tools. For 19 instance, a backhoe operator(David Bauer)had dug across or within three feet of the Kinder Pipeline 20 approximately 10 days before the incident.Furthermore,the backhoe operator(Greg Berry)who struck 21 the Kinder Pipeline never used any hand tools to determine the location of the Kinder Pipeline prior to 22 using his backhoe and striking the Kinder Pipeline; 23 • representing to,among others, EBMUD and KMEP, SFPP, KMGP, KMI, and DOES 51-150, 24 inclusive,on or about September 28,2004 and November 2,2004 that it was aware of the exact location 25 of the Kinder .Pipeline. The representations were made by, among others, Sean Ross, which 26 representations were in fact false as MOUNTAIN CASCADE,and DOES 51-100,and 151-250,had not ��. 27 determined the exact location of the Kinder Pipeline through either the review and analysis of drawings 28 and maps,or by excavating with hand tools; -4(?- SECOND AMENDED COMPLAINT FOR DAMAGES I • attempting,through pressure by and requirements of EBMUD and DOES.1-50, and each of 2 them, to complete the work on the Project in a time frame that was not feasible without endangering 3 the safety of the public and those working on the Project, including Plaintiff ROGER PAASCH. For 4 instance, superintendent Sean Ross considered it"not a good idea to ask for a re-mark" of the Kinder 5 Pipeline because it would have to stop work for 48 hours at the expense of profit; 6 • failing to require KMEP, SFPP, KMGP and KMI,and DOES 101-150,and each of them, to 7 relocate the Kinder Pipeline to a location away from.the immediate vicinity of the Project. Although 8 MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, knew that Modern Continental 9 Construction Co. had concerns about the location of the Kinder Pipeline to the EBMUD Pipeline, and 10 knew that there was a bend in the Kinder Pipeline,MOUNTAIN CASCADE, and DOES 51-100, and 11 151-250,inclusive,did not stop work on the Project and require the relocation of the Kinder Pipeline or 12 relocation of the Project away from the Kinder Pipeline; 13 • failing to inquire as to concerns of other entities working on the Project or who worked on �! 14 the project (including among others Modern Continental Construction Co., EBMUD, KMEP, SFPP, 15 KMGP, KMI and DOES 1-50 and 101-150,and each of them) regarding the location of the Kinder 16 Pipeline to the vicinity of the Project and EBMUD Pipeline. MOUNTAIN CASCADE, and DOES 51- 17 100, and 151-250, inclusive, took the contract with EBMUD for financial profit, consistent with its 18 motto that it"routinely take(s) on tough projects that our competitors shy away from and turn them 19 into profit;' 20 • failing to conduct daily inspections, or requiring others to conduct,by a competent individual 21 prior to the start of work and as needed throughout the shift for evidence of a situation that could result 22 in a dangerous and ultrahazardous condition, such as the condition resulting in the injuries of Plaintiff 23 ROGER PAASCH; 24 • failing to remove, or requiring others to remove, individuals working on the Project, 25 including Plaintiff ROGER PAASCH, from the dangerous and ultrahazardous area until necessary 26 precautions had been taken to ensure the safety of those individuals,including ROGER PAASCH;and pL—R— 27 • failing to timely contact or notify Underground Service Alert prior to excavating,or allowing nylvr 28 excavation, near the Kinder Pipeline and EBMUD Pipeline. For instance, the operator of the backhoe 10 -41- SECOND AMENDED COMPLAINT FOR DAMAGES I (Greg Berry) did not observe any field markings on the ground near or in the vicinity of the Kinder 2 Pipeline, yet MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, failed to contact 3 Underground Service Alert or any other entity, about the lack of field markings, because such contact 4 would have resulted in delay of the project and loss of profits. 5 139.The conduct alleged above by MOUNTAIN CASCADE, and DOES 51-100, and 151-250, 6 inclusive, was, among other things, despicable conduct being carried on with a willful and conscious 7 disregard of the rights and/or safety of others, including but not limited Plaintiff ROGER PAASCH. 8 Among other things,MOUNTAIN CASCADE,and DOES 51-100, and 151-250, inclusive,was aware 9 of the probable dangerous consequences of its conduct and willfully and deliberately failed to avoid 10 those consequences,which resulted in the personal injuries and property damage, of Plaintiff ROGER 11 PAASCH. 12 140. When MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, made the 13 representations as set forth above,they knew them to be false,had no reasonable ground for believing i* 14 them to be true,and knew that they did not have the knowledge which they professed. 15 141. Although the representations were not made directly to Plaintiff ROGER PAASCH, 16 MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, made the representations to, 17 among others, EBMUD with the intent that such representations be relied upon in excavating the 18 EBMUD Pipeline. Plaintiff ROGER PAASCH is entitled to protection as he suffered property damage 19 and physical injuries resulting from justifiable reliance on the representations that the Kinder Pipeline 20 was properly marked. 21 142. Matamoros Pipeline, Inc., and its employees, including Plaintiff ROGER PAASCH, 22 justifiably relied on said representations that the workplace was safe from extreme risk of harm. As a 23 result, Plaintiff ROGER PAASCH was injured in his person and also sustained personal property 24 damage. 25 143.MOUNTAIN CASCADE, and DOES 51-100,and 151-250, inclusive, acted so as to cause 26 the personal injuries and property damages of Plaintiff ROGER PAASCH and to legally cause the e L—Fl— 27 injuries and damages described below. Bx� 28 144. MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, knew, or in the -42- SECOND AMINDED COMPLAINT FOR DAMAGES I exercise of reasonable care should have known,that the conditions constituted an extremely dangerous 2 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the 3 vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline, and that the danger would 4 not be apparent to those persons, such as Plaintiff ROGER PAASCH. MOUNTAIN CASCADE, and 5 DOES 51-100,and 151-250, inclusive,willfully and deliberately failed to avoid these consequences or 6 protect others, including Plaintiff ROGER PAASCH, from these consequences. Under the 7 circumstances of this case involving excavation next to the high-pressure Kinder Pipeline, the conduct 8 of MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,constitutes malice, oppression 9 and/or fraud. 10 145.As a direct and legal result of the alleged conduct of MOUNTAIN CASCADE,and DOES 11 51-100,and 151-250,inclusive,Plaintiff ROGER PAASCH,was hurt and injured in his health,strength, 12 and activity.He suffered unjustifiable and substantial physical pain and mental suffering. 13 146. The above-alleged acts of MOUNTAIN CASCADE, and DOES 51-100, and 151-250, 14 inclusive, were willful, wanton, malicious, oppressive, despicable, and/or fraudulent, and justify an 15 award of punitive damages. At all times mentioned herein, MOUNTAIN CASCADE, and DOES51- 16 100, and 151-250, inclusive, were guilty of malice, oppression, fraud, and/or a willful and conscious 17 disregard for the rights of those working on the EBMUD Pipeline, including Plaintiff ROGER 18 PAASCH. Given the dangerous and ultrahazardous nature of the work performed on the Project, the 19 Kinder Pipeline, and the close proximity of the Kinder Pipeline to the EBMUD Pipeline, the false 20 representations and conduct of MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, 21 was despicable, malicious, fraudulent,oppressive, and made with.a conscious disregard for the safety 22 of,among others,Plaintiff ROGER PAASCH. 23 147. Plaintiffs are entitled to punitive damages against MOUNTAIN CASCADE,and DOES 51- 24 100, and 151-250, inclusive, as corporate defendants because an officer, director or managing agent 25 thereof had advance knowledge of the unfitness of its employees (including but not limited to Sean 26 Ross,Gene Im,Greg Berry,David Bauer)and employed or retained them with a conscious disregard of aLaFL- 27 the rights or safety of others, authorized or ratified the wrongful conduct of its agents, employees, n at Ler 28 representatives,independent contractors and DOES 51-100,and 151-250,and each of them,who were 10 -43- SECOND AMENDED COMPLAINT FOR DAMAGES f I acting as an officer, director or managing agent of MOUNTAIN CASCADE, and DOES 51-100, and 2 151-250, inclusive, and which officer, director or managing agent was personally guilty of oppression, 3 fraud and/or malice. Among other things, an officer, director or managing agent of MOUNTAIN 4 CASCADE, and DOES 51-100, and 151-250, inclusive, ratified the conduct of its employees by 5 continuing to employ them, failing to criticize, censure, reprimand, terminate, suspend or take other 6 remedial action against them,issuing press releases,interfering with attempts of the regulatory agencies 7 including Cal-OSHA to interview them, and providing them with legal counsel so as to defend their 8 conduct. 9 148. Despite full knowledge of the consistent pattern and practice of conduct by its employees 10 which led to numerous incidents involving workers safety and despite full awareness of all dangers to 11 human life and property associated with pipeline incidents, MOUNTAIN CASCADE, and DOES 51- 12 100, and 151-250, inclusive, intentionally, deliberately and/or consciously failed to improve, update, 13 revise, or change its ineffective safety policies and practices, training of employees, or employment of 14 effective communication procedures,which led directly to its prior incidents and the incident involving 15 Plaintiff ROGER PAASCH. 16 149. The above-described conduct of MOUNTAIN CASCADE, and DOES 51-100, and 151- 17 250, inclusive, which includes intentional and conscious disregard of safety standards and acting in a 18 manner calculated to stonewall and/or deceive regulatory authorities, for their own financial benefit, 19 was despicable and carried on with a willful and conscious disregard for the rights and safety of others, 20 including Plaintiff ROGER PAASCH. 21 WHEREFORE, Plaintiff ROGER PAASCH prays judgment against MOUNTAIN CASCADE, 22 and DOES 51-100,and 151-250,inclusive,as hereinafter set forth. .23 JURY DEMAND 24 Plaintiff ROGER PAASCH demands a jury trial for all claims so triable. 25 PRAYER FOR RELIEF 26 WHEREFORE,Plaintiff ROGER PAASCH prays for judgment against all Defendants, and =u-R- 27 each of them,as follows: n at Law - 28 AS TO THE FIRST AND FIFTH CAUSES OF ACTION: -44- SECOND AMENDED COMPLAINT FOR DAMAGES 1 1. For general damages in an amount to be proven at trial; 2 2. For special damages in an amount to be proven at trial; 3 3. For costs of suit;and 4 4. For such other and further relief as the Court deems proper. 5 AS TO THE SECOND,THIRD,FOURTH,SIXTH,SEVENTH,EIGHTH,AND NINTH 6 CAUSES OF ACTION: 7 1. For general damages in an amount to be proven at trial; 8 2. For special damages in an amount to be proven at trial; 9 3. For punitive and exemplary damages in an amount to be proven at trial and as requested 10 in this Second Amended Complaint; 11 4. For costs of suit;and 12 5. For such other and further relief as the Court deems proper. 13 Dated: December ,2005 THE GOMEZ LAW FIRM !..� 14 15 By: JOHN H.GOMEZ 16 17 Attorneys for Plaintiff ROGER PAASCH 18 19 20 21 22 23 24 25 26 �L"� 27 28 -45- SECOND AMENDED COMPLAINT FOR DAMAGES STEINBRECHER AND ASSOCIATES 1 16830 Ventura Boulevard,Suite B Encino,California 91436 2 Tel.(818)528-7600/Fax(818)528-7620 3 edward steinbrecher,esq.,sbn 58390 4 mark lieber,esq.,sbn 144399 Attorneys for Plaintiffs,Maria Ramos, 5 Erica Ramos,Ramona Ramos,Gricelda Ramos, 6 Jasmin Ramos,and Gerardo Ramos 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA,CONTRA COSTA 8 STEINBI AND 9GAS PIPELINE EXPLOSION CASES ASSOCI Judicial Council Coordination Proceedings No. 10 :4433 Coordinated Actions: 11 (Unlimited Civil) Knox,et al.v.MOUNTAIN CASCADE,et al. 12 (Contra Costa Sup.Ct.Case No.C 05-00281); FIRST AMENDED COMPLAINT FARLEY vs.MOUNTAIN CASCADE,et al(Contra For WRONGFUL DEATHAND SURVIVAL 13 Costa Sup.Ct.Case No.C 05-01573);REYES,et al. v.EAST BAY MUNICIPAL UTILITY DISTRICT, damages 10 14 et al.(Alameda Sup.Ct.Case No.RG-05-207720); ARIAS,et al.v.KINDER MORGAN,et al. Maria Ramos, et al. vs. East Bay Municipal 15 (Alameda Sup.Ct.Case No.RG-05-195567); Utility District, et al. (Contra Costa Sup. Ct. Case ANGELES,et al.v.KINDER MORGAN,et al. No. C 05-01840) 16 (Alameda Sup.Ct.Case No.RG-05-195680) 17 18 Plaintiffs,Maria Ramos,Erica Ramos, Ramona Ramos,Gricelda Ramos,Jasmin Ramos and 19 20 Gerardo Ramos,allege against defendants East Bay Municipal Utility District; Kinder Morgan,.Inc.; Kinder Morgan Energy Partners, LP; Kinder Morgan G.P.,Inc.; SFPP,LP; Camp Dresser&McKee 21 22 Inc.; City of Walnut Creek; Contra Costa County; Comforce Technical Services, Inc; Carollo Engineers,P.C.;and Does 1 through 300,inclusive,and each of them,as follows: 23 GENERAL ALLEGATIONS 24 1. Plaintiff Maria Ramos is, at all. times mentioned herein was, a resident of the County 25 26 of Contra Costa, State of California,and a successor in interest of JAVIER RAMOS, deceased, and 27 succeeds to this cause of action because there is no personal representative of the estate of JAVIER i RAMOS, deceased. Maria Ramos brings this complaint in her individual capacity and her capacity i� 28 1 FIRST AMENDED COMPLAINT FOR DAMAGES ro 0�VI060113D I as successor in interest as the sole surviving spouse of JAVIER RAMOS, deceased. Maria Ramos is 2 also the mother and guardian ad litem for the remaining plaintiffs. On the same date as this 3 Complaint was filed, Maria Ramos filed the required declaration under Code of Civil Procedure 4 section 377.32. 5 2. Plaintiff Erica Ramos, a minor, by and through her guardian ad litem, Maria Ramos, 6 is, and at all times mentioned herein was, a resident of the County of Contra Costa, State of 7 California, and brings this complaint in her individual capacity as the minor child of JAVIER 8 RAMOS,deceased. For purposes of this action,Maria Ramos has concurrently submitted with this STEINBI AND 9 complaint her application to be appointed by the above-entitled court as the guardian ad litem of ASSOCI 10 plaintiff Erica Ramos,a minor. 11 3. Plaintiff Ramona Ramos, a minor, by and through her guardian ad litem, Maria 12 Ramos,is, and at all times mentioned herein was,a resident of the County of Contra Costa, State of 13 California, and brings this complaint in her individual capacity as the minor child of JAVIER 14 RAMOS, deceased. For purposes of this action, Maria Ramos has concurrently submitted with this 15 complaint her application to be appointed by the above-entitled court as the guardian ad litem of 16 plaintiff Ramona Ramos,a minor. 17 4. Plaintiff Gricelda Ramos, a minor, by and through her guardian ad litem, Maria 18 Ramos, is,and at all times mentioned herein was, a resident of the County of Contra Costa, State of 19 California, and brings this complaint in her individual capacity as the minor child of JAVIER 20 RAMOS, deceased. For purposes of this action,Maria Ramos has concurrently submitted with this 21 complaint her application to be appointed by the above-entitled court as the guardian ad litem of 22 plaintiff Gricelda Ramos,a minor. 23 5. Plaintiff Jasmin Ramos,a minor,by and through her guardian ad litem,Maria Ramos, 24 is, and at all times mentioned herein was, a resident of the County of Contra Costa, State of 25 California, and brings this complaint in her individual capacity as the minor child of JAVIER 26 RAMOS, deceased. For purposes of this action,Maria Ramos has concurrently submitted with this 27 complaint her application to be appointed by the above-entitled court as the guardian ad litem of 28 2 FIRST AMENDED COMPLAINT FOR DAMAGES I plaintiff Jasmin Ramos,a minor. 2 6. Plaintiff Gerardo Ramos, a minor, by and through his guardian ad ]item, Maria 3 Ramos, is, and at all times mentioned herein was, a resident of the County of Contra Costa, State of 4 California, and brings this complaint in her individual capacity as the minor child of JAVIER 5 RAMOS,deceased. For purposes of this action,Maria Ramos has concurrently submitted with this 6 complaint her application to be appointed by the above-entitled court as the guardian ad litem of 7 plaintiff Gerardo Ramos,a minor. STEINBI 8 7. Defendant East Bay Municipal Utility District(EBMUD) is,and at all times mentioned AND 9 herein was,a publicly owned utility formed under the Municipal District Act passed by the California ASSOCI 10 Legislature in 1921. EBMUD maintains its administrative and headquarters' offices and is situated in 11 the City of Oakland, County of Alameda, State of California. EBMUD planned, designed, owned, 12 supervised, controlled, and constructed a public works construction project known as the Walnut 13 Creek-San Ramon Valley Improvement Project (Project) which involved the installation of a water 14 pipeline(EBMUD Pipeline). The route of the EBMUD Pipeline was to be generally parallel to, east 15 of,and above a high-pressure fuel pipeline system located in,among other plades,the City of Walnut 16 Creek,County of Contra Costa,State of California(Kinder Pipeline). The section of the Project and 17 Kinder Pipeline at issue in this complaint was located within downtown Walnut Creek, California in 18 the direct vicinity of business entities,a school,and residences. 19 8. Defendant Kinder Morgan Energy Partners, L.P. (KMEP) is, and at all times 20 mentioned herein was, a limited partnership duly organized and existing under the laws of the State 21 of Delaware, and qualified and doing business in the State of California. KMEP is, and at all times 22 relevant herein was, the designer, manufacturer, owner, operator, manager, locator, field marker, 23 monitor, and inspector of a high-pressure fuel pipeline system located in, among other places, the 24 City of Walnut Creek,County of Contra Costa, State of California (Kinder Pipeline). KMEP is the 25 largest independent owner/operator of products pipeline in the United States,transporting more than 26 two million barrels a day of gasoline,jet fuel and diesel fuel and up to 7.8 billion cubic feet a day of 27 natural gas liquids through more than 10,000 miles of pipelines,of which some 3,850 are in its Pacific 28 3 FIRST AMENDED COMPLAINT FOR DAMAGES I pipeline system. It is the largest publicly traded pipeline limited partnership in the United States in 2 terms of market capitalization. 3 9. Defendant SFPP, LP (SFPP) is, and at all times mentioned herein was, a limited 4 partnership duly organized and existing under the laws of the State of Delaware, and qualified and 5 doing business in the State of California. SFPP is, and at all times relevant herein was,the designer, 6 manufacturer, owner, operator, manager, locator, field marker, monitor, and inspector of the Kinder 7 Pipeline. SFPP is an operating partnership and subsidiary limited partnership of KMEP. 8 10. Defendant Kinder Morgan G.P., Inc. (KMGP) is, and at all times mentioned herein STEINBI AND 9 was,a corporation duly organized and existing under the laws of the State of Delaware,and qualified ASSOCI 10 and doing business in the State of California as, among other things, the general partner of KMEP. 11 KMGP, is, among other things, the.wholly owned subsidiary of defendant Kinder Morgan, Inc. 12 KMGP is,and at all times relevant herein was,the designer,manufacturer,owner,operator,manager, 13 locator,field marker,monitor,and inspector of the Kinder Pipeline. 14 11. Defendant Kinder Morgan, Inc. (KMI) is, and at all times mentioned herein was, a 15 corporation duly organized and existing under the laws of the State of Kansas, and qualified and 16 doing business in the State of California. KMGP is the wholly-owned subsidiary of KMI. KMI is, 17 and at all times relevant herein was, the designer, manufacturer, owner, operator, manager, locator, 18 field marker, monitor, and inspector of the Kinder Pipeline. KMI is one of the largest mid-stream 19 energy companies in the United States, owning and/or operating more than 35,000 miles of natural 20 gas and products pipeline. 21 12. Camp Dresser & McKee, Inc. (.CDM) is, and at all times mentioned herein was, a 22 corporation duly organized and existing under the laws of the State of Massachusetts, and qualified 23 and doing business in the State of California. CDM entered into.a contract with, among others, 24 EBMUD to, among other things, provide consulting, design and related engineering services for the 25 Project. CDM then entered into a subcontract with Carrollo Engineers, P.C.,to, among other things, 26 provide consulting, design and related engineering services for the portion of the Project at issue in 27 this lawsuit. Plaintiffs have filed the required certificate of merit pursuant to Code of Civil Procedure 28 4 FIRST AMENDED COMPLAINT FOR DAMAGES I section 411.35 2 13. Defendant City of Walnut Creek (Walnut Creek) was and is a governmental entity, 3 duly existing and organized by virtue of the laws of the State of California. Walnut Creek oversaw, 4 planned,designed,owned,supervised,controlled,and constructed the Project involving the EBMUD 5 Pipeline in the City of Walnut Creek. 6 14. Defendant County of Contra Costa(Contra Costa)was and is a governmental entity, 7 duly existing and organized by virtue of the laws of the State of California. Contra Costa oversaw, 8 planned,designed,owned,supervised,controlled,and constructed the Project involving the EBMUD STEINBI AND 9 Pipeline in the County of Contra Costa and the City of Walnut Creek. ASSOCI 10 15. Defendant Comforce Technical Services, Inc. (Comforce) was and is a corporation 11 organized pursuant to the laws of the State of Delaware, doing business with the State of California, 12 and provided temporary employees and staffing to take direction from defendants KMI, KMEP, and 13 SFPP. 14 16. Defendant Carollo Engineers, P.C. (Carollo) was and is a business entity organized 15 pursuant to the laws of the State of Arizona, doing business within the State of California, and 16 providing consulting, design and related engineering services for water and wastewater treatment 17 facilities,including the Project and Kinder Pipeline at issue. 18 17. At all times herein mentioned Does 1 through 300, inclusive, and each of them, were 19 as follows: 20 (a) Individuals and/or business organizations form unknown that were engaged in the 21 business of planning, designing, owning, supervising, controlling and constructing the 22 Project. 23 (b) Individuals and/or business organizations form unknown were engaged in the 24 construction, supervision, operation, and control of the Project as contractors or 25 subcontractors hired by EBMUD, and Does 1 through 300, and each of them, and/or 26 Mountain Cascade. 27 (c) Individuals and/or business organizations form unknown that designed, 28 5 FIRST AMENDED COMPLAINT FOR DAMAGES I manufactured, sold, owned, controlled, operated, maintained, inspected, distributed, 2 transported, located, field marked, monitored, and managed the Kinder Pipeline and/or 3 contents therein. 4 (d) Individuals and/or business organizations form unknown that were the owner(s) 5 and/or bailee(s)of the backhoe vehicle which struck the Kinder Pipeline. 6 (e) Individuals and/or business organizations form unknown that drove and/or operated 7 the backhoe vehicle which struck the Kinder Pipeline. STEINBI 8 (f) Individuals and/or business organizations form unknown that owned or controlled the AND 9 real property where the Project,EBMUD Pipeline,and Kinder Pipeline was located. ASSOCI 10 18. Plaintiffs are ignorant of the true names and/or capacities of defendants sued herein as 11 .Does I through 300,inclusive,and therefore sue these defendants by such fictitious names. Plaintiffs 12 will amend this complaint to allege their true names and capacities when ascertained. Plaintiffs are 13 informed and believe, and on that basis allege, that each of said fictitiously named defendants is 14 responsible in some manner for the occurrences herein alleged, and that the injuries herein alleged 15 were proximately caused by their conduct. 16 19. Plaintiffs are informed and believe and on that basis allege that at all times mentioned 17 herein,each of the defendants was the agent and employee of each of the remaining defendants,and 18 in doing the things alleged in this Complaint,was acting within the course and scope of this agency 19 and employment, with the knowledge, approval, consent and ratification of each of the remaining 20 defendants. 21 20. Plaintiffs are informed and believe,and thereon allege, that at all times relevant,there 22 exists, and has existed, a unity of interest and ownership between KMEP, SFPP, KMGP, KMI, and 23 Does I through 300, and each of them, such that any individuality and separateness between the 24 entities has ceased to exist. Upon information and belief, KMEP is the alter ego of KMGP, SFPP, 25 KMI,and Does I through 300,and each of them. Upon information and belief, SFPP is the alter ego 26 of KMEP,KMGP,KMI,and Does 1 through 300, and each of them. Upon information and belief, 27 KMGP is the alter ego of KMI,and Does 1 through 300. Among other things, 28 6 FIRST AMENDED COMPLAINT FOR DAMAGES I (a) KMEP was and is completely controlled, dominated, managed and operated by 2 KMGP,KMI,and Does 1 through 300,and each of them; 3 (b) SFPP was and is completely controlled,dominated,managed and operated by KMEP, 4 KMGP,KMI and Does 1 through 300; 5 (c) KMGP was and is completely controlled,dominated,managed and operated by KMI, 6 and Does 1 through 300; 7 (d) KMEP, SFPP, KMGP, KMI and Does 1 through 300, have permitted assets to be 8 transferred between themselves without adequate consideration; STEINBI AND 9 (e) KMEP,SFPP,KMGP,KMI and Does 1 through 300,have disguised corporate profits ASSOCI 10 in order to evade liability and the payment of judgments;and 11 (f) KMEP, SFPP, KMGP, KMI, and Does 1 through 300, was and is inadequately 12 capitalized. Adherence to the fiction of the separate existence of KMEP, SFPP, KMGP,KMI 13 and Does 1 through 300,would permit an abuse of the corporate privilege and would sanction 14 fraud or promote injustice because the entities, and each of them, used in bad faith for the 15 purpose of evading liability and as a means of allowing the other entities,and each of them,to 16 profit from their control and manipulation free from the claims of plaintiffs. 17 21. On or about March 14, 2005, plaintiffs, and each of them, presented their claims to 18 EBMUD pursuant to Government Code section 910. On or about March 21,2005,EBMUD rejected 19 the claims in their entirety. Attached as Exhibit A is a true and correct copy of the governmental 20 claim and rejection concerning defendant EBMUD. 21 22. On or about May 5, 2005, plaintiffs, and each of them, presented their claims to 22 Walnut Creek pursuant to Government Code section 910. On or about July 8, 2005, Walnut Creek 23 rejected the claims in their entirety. Attached as Exhibit B is a true and correct copy of the 24 governmental claim and rejection concerning defendant Walnut Creek. 25 23. On or about May 5, 2005, plaintiffs, and each of them, presented their claims to 26 Contra Costa pursuant to Government Code section 910. To date, Contra Costa has not rejected the 27 governmental claims and therefore it is rejected by operation of law. Attached as Exhibit C is a true 28 7 FIRST AMENDED COMPLAINT FOR DAMAGES I and correct copy of the governmental claim concerning defendant Contra Costa. 2 24. The events in issue occurred on or about Tuesday November 9,2004, in and adjacent 3 to a 14-foot deep trench within the South Broadway Easement in a residential neighborhood between 4 Newell Avenue and Rudgear Road, in the City of Walnut Creek, County of Contra Costa, State of 5 California. In and adjacent to the 14-foot trench,construction workers were building a 69-inch water 6 pipeline,the subject Pipeline,to transport water from Walnut Creek to San Ramon. 7 25. Defendants EBMUD,and Does I through 300, and each of them, planned, designed, 8 owned, supervised, controlled, and constructed the Project, which involved the installation of the STEINBI AND 9 EBMUD Pipeline. EBMUD's general contract was initially awarded on or about September 24,2002, ASSOCI 10 to Modern Continental Construction Co., (Modern Continental). In or about 2003 or 2004, Modern 11 Continental was excavating for the EBMUD Pipeline and Project,and determined that a segment of 12 the Kinder Pipeline was approximately 13 feet from where it had been field marked by KMEP; SFPP, 13 KMGP, KMI, and Does 1 through 300. Modern Continental expressed this concern to, among i14 others, EBMUD, KMEP, SFPP, KMGP, KMI, and Does 1 through 300, and each of them. In 15 addition, in or about August of 2003, EBMUD requested KMEP, SFPP, KMGP, KMI, and Does 1 16 through 300,to relocate a section of the Kinder Pipeline because it was,among other things,hard to 17 locate and a hindrance to the completion of the Project. In or about early 2004,Modern Continental, 18 EBMUD,and Does 1 through 300, and each of them, were extremely concerned about the location 19 of the Kinder Pipeline because it was still in the way of the excavation for the EBMUD Pipeline and 20 Project. Among others, Modern Continental, EBMUD, KMEP, SFPP, KMGP, KMI, and Does 1 21 through 300,and each of them, discussed in early 2003 the location of the Kinder Pipeline and how 22 to continue working on the Project despite the location of the Kinder Pipeline. On or about May 28, 23 2004,EBMUD issued a"Notice of Default Termination"to Modern Continental. 24 26. After EBMUD terminated its general contract with Modern Continental Construction 25 Co., EBMUD, and Does 1 through 300, and each of them, contracted in 2004 with, among others, 26 Mountain Cascade and Does 1 through 300, and each of them, to complete construction of the 27 Project. In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act of 28 8 FIRST AMENDED COMPLAINT FOR DAMAGES I the Public Contract Code of the State of California, Mountain Cascade and Does 1 through 300, 2 thereafter subcontracted with, listed and employed, among others, Matamoros Pipeline, Inc. to, 3 among other things, weld together segments of the EBMUD Pipeline. Mountain Cascade employed 4 Javier Ramos,deceased. 5 27. Prior to starting excavation, the EBMUD contract required a field meeting between 6 EBMUD and Mountain Cascade. The meeting occurred on September 28,2004, and was attended 7 by representatives of EBMUD, Mountain Cascade, KMEP, SFPP, KMGP, KMI, Comforce, and STEINBI 8 Does I through 300, inclusive. At that meeting, the line rider employed by KMEP, SFPP, KMGP, AND 9 KMI, Comforce, and Does 1 through 300, inclusive, represented that the line markers were directly ASSOCI 10 over the Kinder Pipeline and that the Kinder Pipeline ran straight between the line markers. The 11 attendees of the meeting walked the entire length of the Kinder Pipeline using a 100-foot tape to 12 show the location of the proposed EBMUD Pipeline and determine if there would be any interference 13 with the Kinder Pipeline. Fieldwork commenced in late September 2004, 14 28. In or about October of 2004, benching for the trenching excavator in the area of the 15 offset took place. Mountain Cascade and Does 1 through 300, inclusive, benched over the offset at 16 station 100+15. As of November 3 and 4,2004,there were no markings indicating the offset. 17 29. On or about November 8, 2004, a site meeting occurred which was required by 18 Mountain Cascade three days earlier, and attended by, among others, Mountain Cascade, KMEP, 19 SFPP,KMGP,KMI,Comforce,EBMUD,and Does 1 through 300, inclusive. Neither KMEP, SFPP, 20 KMGP, KMI, Comforce, EBMUD, and Does 1 through 300, inclusive, represented anything about 21 the offset at this meeting. 22 30. On or about November 9, 2004, Javier Ramos, deceased, was working within the 23 course and scope of his employment at the Project, working inside the EBMUD Pipeline,which lay 24 in a trench being excavated for the EBMUD Pipeline and following South Broadway between Newell 25 Avenue and Rudgear Road in the City of Walnut Creek,County of Contra Costa,State of California. 26 31. Near to where Javier Ramos, deceased, was working, a backhoe operator identified 27 herein as a Doe, under the direct supervision and control of EBMUD, KMEP, SFPP, KMGP, KMI 28 9 FIRST AMENDED COMPLAINT FOR DAMAGES I and Does 1 through 300,and each of them,excavated the trench in which the EBMUD Pipeline was 2 being installed. 3 32. An underground pipeline owned and operated by, among others, KMEP, SFPP, .4 KMGP,KMI,and Does 1 through 300,and each of them(Kinder Pipeline) lay immediately adjacent 5 to the EBMUD Pipeline trench. The Kinder Pipeline was at all times an underground utility 6 transporting flammable material,consisting of gasoline,diesel fuel and/or jet fuel. 7 33. On or about November 9, 2004, Does I through 300, and each of them, so operated 8 'the backhoe as to penetrate the Kinder Pipeline, causing the flammable material within to escape. STEINBI AND 9 Plaintiffs,and each of them,are informed and believe,and thereon allege,that the flammable material ASSOCI 10 and byproducts thereof from the explosion entered the EBMUD Pipeline in which Javier Ramos, I 1 deceased, was working, resulting in personal injuries to Javier Ramos, and subsequently his death. 12 Before his death, Javier Ramos, deceased, suffered, among other things, damage to his personal 13 property,personal injury,and unjustifiable and substantial physical pain and mental suffering. Javier 14 Ramos, deceased, was not killed instantly but suffered a horrendous death some 28 hours after the 15 Kinder Pipeline was ruptured and exploded. 16 34. KMEP, SFPP, KMGP, KMI and Does 1 through 300, and each of them, owns a 45% 17 interest in the Cochin Pipeline System, a 1900-mile natural gas liquids pipeline operating between 18 Alberta and Ontario,Canada,traversing through seven states in the United States. On or about July 19 16,2003,the United States portions of the Cochin Pipeline System experienced a rupture and fire at a 20 rural location about 75 miles from Fargo,North Dakota. 21 35. Approximately two weeks later on or about July 30, 2003, a pipeline owned and 22 operated by KMEP,SFPP,KMGP,KMI,and Does 1 through 300,broke in a subdivision in Tucson, 23 Arizona, spraying gasoline more than fifty feet into the air,saturating five homes,and contaminating 24 soil and groundwater. 25 36. On or about April 29,2004,a pipeline owned and operated by KMEP, SFPP,KMGP, 26 KMI and Does 1 through 300, which transported gasoline, jet fuel and diesel to Chico and 27 Sacramento, California and Reno,Nevada experienced a rupture not discovered until April 30,2004. 28 10 FIRST AMENDED COMPLAINT FOR DAMAGES I As a result, approximately 1,000 barrels or 42,000 gallons of fuel spilled into about 250 acres of 2 Suisin Marsh, a wetland in Northern California. Criticized for the delayed response, a managing 3 agent of KMEP, SFPP, KMGP, KMI, and Does 1 through 300, replied "You can't cry wolf every 4 time you see an anomaly." 5 37. On or about November 22, 2004, a pipeline owned and operated by KMEP, SFPP, 6 KMGP,KMI,and Does 1 through 300,transporting gasoline from Colton to Barstow,California into 7 Las Vegas, Nevada experienced a rupture in a rural area near Baker, California. California Highway STEINBI 8 Patrol officers on nearby Interstate 15 noticed a strong odor and closed the freeway,which led to the AND 9 discovery of a fifty to sixty foot gasoline vapor geyser. ASSOCI 10 38. On or about May 5, 2005, California OSHA issued two Serious Willful Citations to 11 KMEP for violation of California Code of Regulations (CCR) sections 1541(b)(1) and 1511(b) 12 totaling$140,000; the evidence showed that KMEP committed an intentional and knowing violation 13 and KMEP was conscious of the fact that what it was doing constituted a violation,or was aware that 14 a hazardous condition existed and made no reasonable effort to eliminate the hazard. OSHA also 15 issued one Serious Citation to Carrollo for violation of CCR section 1511(b) totaling $22,500, and 16 one Serious Citation to EBMUD for violation of CCR section 1511(b) totaling $6,750; OSHA 17 determined with respect to Carollo and EBMUD, there was a substantial probability that death or 18 serious physical harm could result from the condition which existed or from the practices,operations 19 or processes at the workplace. 20 39. As a direct and legal result of the negligent, malicious, and tortious conduct of 21 defendants, and each of them, decedent Javier Ramos died on November 10, 2005, 28 hours 22 following the subject accident. 23 40. As a direct and legal result of the death of Javier Ramos, plaintiff Maria Ramos has 24 been deprived of the decedent's future support, love, care, comfort, affection, society, presence, 25 companionship and protection. Plaintiffs Erica Ramos, Ramona Ramos, Gricelda Ramos, Jasmin 26 Ramos and Gerardo Ramos have sustained a loss of intangible qualities of the parent-child 27 relationship, including decedent's services, society, financial support, companionship, comfort, love, 28 11 FIRST AMENDED COMPLAINT FOR DAMAGES I affection, and solace. The foregoing has caused plaintiffs to suffer economic and non-economic 2 damages. 3 41. As a further direct and legal result of the death of Javier Ramos, plaintiff Maria 4 Ramos, as the successor in interest to the decedent, has and is responsible for the payment of 5 medical expenses, funeral and burial expenses and other related expenses incurred while the 6 decedent survived, and following his death. The foregoing has caused plaintiff Maria Ramos to 7 suffer additional economic and non-economic damages. 8 STEINBI AND 9 FIRST CAUSE OF ACTION ASSOCI 10 NEGLIGENCE 11 AS AGAINST EBMUD AND DOES 1 THROUGH 300,INCLUSIVE 12 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica 13 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors) 14 42. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through 41 15 above,as though fully set forth herein. 16 43. At all times relevant herein,EBMUD,and Does 1 through 300, inclusive, and each of 17 them, was engaged in the business of planning, designing, owning, supervising, controlling and 18 constructing the Project. 19 44. Because of the dangerous and ultrahazardous nature of the Project, the Kinder 20 Pipeline and contents thereof, and the location of the Kinder Pipeline in the vicinity of the EBMUD 21 Pipeline and the Project, EBMUD and Does 1 through 300, inclusive, and each of them, had a 22 nondelegable duty to plan,design,own,supervise,control and construct the Project in a safe manner 23 to ensure the safety of the public and those working on the Project, including Javier Ramos, 24 deceased. 25 45. At all relevant times herein,EBMUD and Does 1 through 300, inclusive, and each of 26 them,breached said nondelegable duty by,among other things: 27 (a) Negligently,carelessly and recklessly hiring KMEP, SFPP,KMGP,KMI, and Does 1 + 28 12 FIRST AMENDED COMPLAINT FOR DAMAGES I through 300, and each of them, to perform the work on the Project, given, among other 2 things,their poor safety records; 3 (b) Negligently, carelessly and recklessly supervising KMEP, SFPP, KMGP, KMI and 4 Does 1 through 300,and each of them,in the performance of their work on the Project; 5 (c) Negligently,carelessly and recklessly failing to correctly determine the location of the 6 Kinder Pipeline before allowing defendants to excavate in the area of the EBMUD Pipeline 7 . and Kinder Pipeline; 8 (d) Negligently,carelessly and recklessly pressuring and requiring Mountain Cascade and STEINBI AND 9 Does 1 through 300,and each of them, to complete their work on the Project in a time frame ASSOCI 10 that was not feasible without endangering the safety of the public and those working on the 11 Project,including Javier Ramos,deceased; 12 (e) Negligently, carelessly and recklessly failing to create, obtain and/or analyze the 13 proper utility maps showing the location of the Kinder Pipeline,prior to allowing Mountain 14 Cascade and Does I through 300,and each of them, to excavate near the EBMUD Pipeline 15 and Kinder Pipeline; 16 (f) Negligently, carelessly and recklessly failing to obtain the proper permits and other 17 authority to allow for work to be completed by Mountain Cascade and Does 1 through 300, 18 and each of them,in the vicinity of the Kinder Pipeline and EBMUD Pipeline; 19 (g) Negligently, carelessly and recklessly creating a dangerous condition of public 20 property by performing work, or allowing work to be performed on its behalf, on the Project 21 in the immediate vicinity of the Kinder Pipeline as opposed to another location in the City of 22 Walnut Creek,County of Contra Costa where the Kinder Pipeline was not located; 23 (h) Negligently, carelessly and recklessly failing to require KMEP, SFPP, KMGP, KMI, 24 and Does 1 through 300,and each of them,to relocate the Kinder Pipeline to a location away 25 from the immediate vicinity of the EBMUD Pipeline and Project; 26 (i) Negligently,carelessly and recklessly failing to notify Mountain Cascade and Does 1 27 through 300,and each of them, of concerns by other entities working on the Project or who 28 13 FIRST AMENDED COMPLAINT FOR DAMAGES I worked on the project (including among others Modern Continental, KMEP, SFPP, KMGP, 2 KMI,and Does 1 through 300)regarding the location of the Kinder Pipeline to the vicinity of 3 the EBMUD Pipeline and Project; 4 (j) Negligently, carelessly and recklessly failing to proceed, or requiring KMEP, SFPP, 5 KMGP, KMI and Does 1 through 300, and each of them, to proceed with the work around 6 the Kinder Pipeline and EBMUD Pipeline through safe and acceptable means; 7 (k) Negligently, carelessly and recklessly failing to conduct, or requiring KMEP, SFPP, STEINBI 8 KMGP,KMI and Does I through 300, and each of them, to conduct, daily inspections by a AND 9 competent individual prior to the start of work and as needed throughout the shift for ASSOCI 10 evidence of a situation that could result in dangerous and ultrahazardous condition, such as 11 that which resulted in the death of Javier Ramos,deceased;and 12 (1) Negligently, carelessly and recklessly failing to remove, or requiring KMEP, SFPP, 13 KMGP,KMI and Does 1 through 300,and each of them, to remove, individuals working on 14 the Project, including Javier Ramos, deceased, from the dangerous and ultrahazardous area 15 until necessary precautions had been taken to ensure the safety of those individuals,including 16 Javier Ramos,deceased. 17 46. EBMUD, and Does 1 through 300, inclusive, and each of them, acted negligently, 18 carelessly, and recklessly so as to cause the personal injury and ultimate death of Javier Ramos, 19 deceased,and to legally cause the injuries and damages described below. 20 47. EBMUD, and Does 1 through 300, inclusive, and each of them, knew, or in the 21 exercise of reasonable care should have known, that the conditions constituted an extremely 22 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably 23 be in the vicinity of the Project or working on the Project,and that the danger would not be apparent 24 to persons such as Javier Ramos, deceased. Under the circumstances of this case involving 25 excavation next to the high-pressure Kinder Pipeline, the conduct of EBMUD, and Does 1 through 26 300, inclusive, and each of them, was an extreme departure from the ordinary standard of conduct 27 and constitutes gross negligence. 28 14 FIRST AMENDED COMPLAINT.FOR DAMAGES 1 48. As a direct and legal result of the negligence and/or gross negligence of EBMUD,and 2 Does I through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his 3 health, strength,and activity, and ultimately died 28 hours after hours after the Kinder Pipeline was 4 ruptured and exploded. He suffered unjustifiable and substantial physical pain and mental suffering 5 before his death. 6 49. As a direct and legal result of the negligence and/or gross negligence of EBMUD,and 7 Does I through 300, inclusive, and each of them, Javier Ramos incurred personal injuries and STEINBI 8 damages prior to his death in an amount according to proof at trial. AND 9 50. As a further direct and legal result of the negligence and/or gross negligence of ASSOC[ 10 EBMUD, and Does 1 through 300, decedent Javier Ramos was killed and plaintiffs sustained the 11 damages as hereinabove alleged. 12 SECOND CAUSE OF ACTION 13 NEGLIGENCE AS AGAINST KMEP,SFPP,KMGP,KMI, 14 AND DOES 1 THROUGH 300,INCLUSIVE 15 (By Maria Ramos, individually and as successor in interest to Javier Ramos,deceased;By Erica 16 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors) 17 51. Plaintiffs, and each of them, incorporate each and every allegation contained in 18 paragraphs I through 50 above,as though fully set forth.herein. 19 52. At all times relevant herein, KMEP, as a limited partnership, SFPP, a limited 20 partnership and operating partnership of KMEP,KMGP as the general partner of KMEP,and KMI as 21 the parent corporation and owner of KMGP, and Does 1 through 300, inclusive, and each of them, 22 were the owners and operators of the Kinder Pipeline. 23 53. Because of the dangerous and ultrahazardous nature of the Project and the Kinder 24 Pipeline, and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, KMEP, . 25 SFPP,KMGP,KMI,and Does 1 through 300,inclusive, and each of them,had a nondelegable duty 26 to own, supervise, control, and operate the Kinder Pipeline in a safe manner to ensure the safety of 27 the public and those working on the Project,including Javier Ramos,deceased. 28 15 FIRST AMENDED COMPLAINT FOR DAMAGES 1 54. At all relevant times herein, KMEP, SFPP, KMGP, KMI, and Does 1 through 300, 2 inclusive,and each of them,breached said nondelegable duty by,among other things: 3 (a) Negligently, carelessly and recklessly hiring, training, retaining, and supervising its 4 employees, agents, representatives, and independent contractors, including Comforce in the 5 performance of the work on the Kinder Pipeline in relation to the Project, including but not 6 limited to the determination of the location of the Kinder Pipeline before allowing EBMUD, 7 Mountain Cascade,and Does 1 through 300, and each of them, to excavate and work in the STEINBI 8 area of the EBMUD Pipeline and Kinder Pipeline; AND 9 (b) Negligently, carelessly and recklessly failing to create, obtain and/or analyze the ASSOCI 10 proper utility maps showing the location of the Kinder Pipeline, prior to allowing EBMUD, 11 Mountain Cascade,and Does 1 through 300, and each of them, to excavate and work in the 12 area of the EBMUD Pipeline and Kinder Pipeline; 13 (c) . Negligently, carelessly and recklessly failing to obtain the proper permits and other 14 authority to allow for work to be completed in the vicinity of the Kinder Pipeline and 15 EBMUD Pipeline; 16 (d) Negligently, carelessly and recklessly failing to locate and field mark the location of 17 the Kinder Pipeline prior to the excavation by EBMUD, Mountain Cascade and Does 1 18 through 300, inclusive, and each of them, in violation of, among other things, Government 19 Code section 4216.3; 20 (e) Negligently, carelessly and recklessly failing to relocate the Kinder Pipeline to a 21 location away from the immediate vicinity of the Project and EBMUD Pipeline; 22 (f) Negligently, carelessly and recklessly failing to. address the concerns of entities 23 working on the Project or who worked on the project (including.among others Modern 24 Continental,EBMUD,and Does 1 through 300, and each of them)regarding the location of 25 the Kinder Pipeline to the vicinity of the EBMUD Pipeline, and failing to inform Mountain 26 Cascade and Does 1 through 300,of these concerns; 27 (g) Negligently,carelessly and recklessly entering into a mutual agreement with EBMUD, 28 16 FIRST AMENDED COMPLAINT FOR DAMAGES I Mountain Cascade, and Does 1 through 300, and each of them, allowing the use of power- 2 operated or power-driven excavating or boring equipment within the vicinity of the Kinder 3 Pipeline and Project; 4 (h) Negligently, carelessly and recklessly failing to inspect, or failing to inspect as 5 frequently as necessary, the Kinder Pipeline during work on the Project where, through 6 contact with EBMUD and others (including Modem Continental, EBMUD, and Does 1 7 through 300,and each of them,)KMEP,SFPP,KMGP,KMI,Comforce,and Does 1 through 8 300, and each of them, knew or should have known, that the Kinder Pipeline could be STEINBI AND 9 damaged by excavation work for the Project; ASSOCI 10 (i) Negligently, carelessly and recklessly failing, through employees, including Mike I 1 Biggs,who was or were on site both the day before the accident and the day it occurred, to 12 inform Mountain Cascade and others excavating in the immediate area, of the known 13 deviation.in the Kinder Pipeline,which brought it in close proximity to the excavation of the 14 EBMUD Pipeline,and therefore put workers in immediate danger;and 15 (j) Negligently failing to do all the above, despite knowledge that this same petroleum 16 pipeline had been damaged previously during excavation work,at different locations thereof. 17 55. The tortious conduct alleged above by KMEP, SFPP, KMGP, KMI, and Does 1 18 through 300, inclusive and each of them, was, among other things, negligent, careless, reckless, 19 grossly negligent and/or.despicable,with the despicable conduct being carried on by KMEP, SFPP, 20 KMGP, KMI, and Does 1 through 300, inclusive and each of them, with a willful and conscious 21 disregard of the rights and/or safety of others, including but not limited to Javier Ramos, deceased. 22 Among other things, KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of 23 them, was aware of the probable dangerous consequences of its conduct and willfully and 24 deliberately failed to avoid those consequences,which resulted in the personal injuries and property 25 damage,and subsequent death of Javier Ramos,deceased. 26 56. Defendants KMEP,SFPP,KMGP,KMI,and Does I through 300,inclusive,and each 27 of them, acted so as to cause the personal injury and property damage, and ultimate death of Javier 28 17 FIRST AMENDED COMPLAINT FOR DAMAGES I Ramos,deceased,and to legally cause the injuries and damages described below. 2 57. Defendants KMEP,SFPP,KMGP;KMI,and Does 1 through 300, inclusive, and each 3 of them, knew, or in the exercise of reasonable care should have known, that the conditions 4 constituted an extremely dangerous condition and unreasonable risk of serious injury or death to 5 those who would foreseeably be in the vicinity of or working on the Project, Kinder Pipeline or 6 EBMUD-Pipeline,and that the danger would not be apparent to those persons,such as Javier Ramos, 7 deceased. 8 58. Defendants KMEP,SFPP,KMGP,KMI,and Does 1 through 300, inclusive,and each STEINBI AND 9 of them, willfully and deliberately failed to avoid these consequences or protect others, including ASSOCI 10 Javier Ramos, deceased, from these consequences. Under the circumstances of this case involving 11 excavation next to the high-pressure Kinder Pipeline, the conduct of KMEP, SFPP, KMGP, KMI, 12 and Does 1 through 300, inclusive, and each of them, was an extreme departure from the ordinary 13 standard of conduct,and constitutes gross negligence,malice,and oppression. 14 59. As a direct and legal result of the alleged conduct of KMEP, SFPP,KMGP,KMI,and 15 Does 1 through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his 16 health, strength,and activity,and ultimately died. He suffered unjustifiable and substantial physical 17 pain and mental suffering before his death. 18 60. As a direct and legal result of the negligence and/or gross negligence of KMEP, SFPP, 19 KMGP,KMI,and Does 1 through 306,decedent Javier Ramos was killed and plaintiffs sustained the 20 damages as hereinabove alleged. 21 61. As a further direct and legal result of the alleged conduct of KMEP, SFPP, KMGP, 22 KMI, and Does 1 through 300, inclusive, and each of them, Javier Ramos incurred damage to his 23 person and personal property, before his death, in an amount according to proof at trial. The above- 24 alleged acts of KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, 25 were willful, wanton, malicious, oppressive, despicable, and/or fraudulent, and justify an award of 26 punitive damages. At all times mentioned herein, KMEP, SFPP, KMGP, and KMI, its employees, 27 agents, representatives, independent contractors, and Does 1 through 300, inclusive, and each of 28 18 FIRST AMENDED COMPLAINT FOR DAMAGES I them were guilty of malice, oppression,fraud,and/or a willful and conscious disregard for the rights 2 of Javier Ramos,deceased. Given the dangerous and ultrahazardous nature of the work performed 3 on the Project, the Kinder Pipeline, and the close proximity of the Kinder Pipeline to the EBMUD 4 Pipeline, KMEP, SFPP, KMGP, and KMI, its agents, employees, independent contractors, 5 representatives,and Does 1 through 300,inclusive,and each of them,performed work on the Project 6 with a reckless indifference and willful and conscious disregard for the rights of Javier Ramos, 7 deceased. 8 62. Plaintiffs are entitled to punitive damages against KMEP, SFPP, KMGP, KMI, and STEINBI AND 9 Does 1 through 300,inclusive,and each of them,as corporate defendants because an officer,director ASSOC[ 10 or managing agent thereof had advance knowledge of the unfitness of its employees and employed 11 or retained them with a conscious disregard of the rights or safety of others,authorized or ratified the 12 wrongful conduct of its agents, employees, representatives, independent contractors, who were 13 acting as an officer, director or managing agent of KMEP, SFPP,KMGP,KMI,and Does I through 14 300, and each of them, and which officer, director or managing agent was personally guilty of 15 oppression,fraud and/or malice. 16 THIRD CAUSE OF ACTION 17 NEGLIGENCE 18 AS AGAINST COMFORCE AND DOES 1 THROUGH 300,INCLUSIVE 19 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica 20 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors) 21 63. Plaintiffs, andeach of them, incorporate each and every allegation contained in 22 paragraphs 1 through 62 above,as though fully set forth herein. 23 64. Because of the dangerous and ultrahazardous nature of the Project and the Kinder 24 Pipeline, and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, Comforce, 25 and Does 1 through 300, inclusive, and each of them, had a nondelegable duty under, among other 26 things, OSHA regulations and California statutes and common law, to own, supervise, control, 27 survey,and operate the Kinder Pipeline in a safe manner to ensure the safety of the public and those . 28 19 FIRST AMENDED COMPLAINT FOR DAMAGES 1 working on the Project,including Javier Ramos,deceased. 2 65. At all relevant times herein,Comforce,and Does 1 through 300,inclusive, and each of 3 them,breached said nondelegable duty by,among other things: 4 (a) Negligently and carelessly and recklessly hiring,training,retaining,and supervising its 5 employees, agents, representatives, and independent contractors in the performance of the 6 work on the Kinder Pipeline in relation to the Project, including but not limited to the 7 determination of the location of the Kinder Pipeline before allowing EBMUD, Mountain 8 Cascade, and Does 1 through 300, inclusive, and each of them, to excavate and work in the STEINBI AND 9 area of the EBMUD Pipeline and Kinder Pipeline; ASSOCI 10 (b) Negligently and carelessly and recklessly failing to create, obtain and/or analyze the 11 proper utility maps, plans and drawings.showing the location of the Kinder Pipeline,prior to 12 allowing EBMUD,Mountain Cascade, and Does 1 through 300,inclusive, and each of them, 13 to excavate and work in the area of the EBMUD Pipeline and Kinder Pipeline; 14 (c) Negligently and carelessly and recklessly failing to obtain the proper permits and other 15 authority to allow for work to be completed in the vicinity of the Kinder Pipeline and 16 EBMUD Pipeline; 17 (d) Negligently and carelessly and recklessly failing to locate and field mark the location 18 of the Kinder Pipeline prior to the excavation by EBMUD, Mountain Cascade and Does 1 19 through 300, inclusive, inclusive, and each of them, in violation of, among other things, 20 Government Code section 4216.3;and 21 (e) Negligently and carelessly and recklessly failing to inspect, or failing to inspect as 22 frequently as necessary, the Kinder Pipeline during work on the Project where, through 23 contact with EBMUD and others (including Modern Continental, and Does 1 through 300, 24 inclusive,and each of them)Comforce and Does I through 300,inclusive, and each of them, 25 knew or should have known, that the Kinder Pipeline could be damaged by excavation work 26 for the Project. 27 66. The tortious conduct alleged above by Comforce, and Does 1 through 300, inclusive 28 20 FIRST AMENDED COMPLAINT FOR DAMAGES I and each of them, was, among other things, negligent, careless, reckless, grossly negligent and/or 2 despicable, with the despicable conduct being carried on by Comforce, and Does 1 through 300, 3 inclusive and each of them, with a willful and conscious disregard of the rights and/or safety of 4 others, including but not limited to Javier Ramos, deceased. Among other things, Comforce, and 5 Does 1 through 300,inclusive,and each of them,was aware of the probable dangerous consequences 6 of its conduct and willfully and deliberately failed to avoid those consequences,which resulted in the 7 personal injuries and property damage,and subsequent death of Javier Ramos,deceased. 8 67. Comforce, and Does.l through 300,inclusive,and each of them, acted so as to cause STEINBI AND 9 the personal injury and property damage, and ultimate death of Javier Ramos, deceased, and to ASSOCI 10 legally cause the injuries and damages described below. 11 68. Comforce, and Does 1 through 300, inclusive, and each of them, knew, or in the 12 exercise of reasonable care should have known, that the conditions constituted an extremely 13 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably 14 be in the vicinity of or working on the Project, Kinder Pipeline or EBMUD Pipeline, and that the 15 danger would not be apparent to those persons, such as Javier Ramos, deceased. Defendants 16 Comforce, and Does 1 through 300, inclusive, and each of them, willfully and deliberately failed to 17 avoid these consequences or protect others, including Javier Ramos, deceased, from these 18 consequences. Under the circumstances of this case involving excavation next to the high-pressure 19 Kinder Pipeline,the conduct of Comforce;and Does 1 through 300,inclusive,and each of them,was 20 an extreme departure from the ordinary standard of conduct, and constitutes gross negligence; 21 malice,and oppression. 22 69. As a direct and legal result of the alleged conduct of defendants Comforce, and Does .23 1 through 300, inclusive, and each of them, Javier Ramos, deceased, was hurt and injured in his 24 health,strength,and activity,and ultimately died. He suffered unjustifiable and substantial physical 25 pain and mental suffering before his death. 26 70. As a direct and legal result of the negligence and/or gross negligence of Comforce, 27 and Does 1 through 300, decedent Javier Ramos was killed and plaintiffs sustained the damages as 28 21 FIRST AMENDED COMPLAINT FOR DAMAGES I hereinabove alleged. 2 71. The above-alleged acts of Comforce, and Does 1 through 300, inclusive, and each of 3 them,were willful,wanton,malicious,oppressive,despicable,and/or fraudulent,and justify an award 4 of punitive damages. At all times mentioned herein, Comforce, its employees, agents, 5 representatives, independent contractors, and Does 1 through 300, inclusive, inclusive, and each of 6 them were guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the rights 7 of Javier Ramos,deceased. Given the dangerous and ultrahazardous nature of the work performed STEINBI 8 on the Project, the Kinder Pipeline, and the close proximity of the Kinder Pipeline to the EBMUD AND 9 Pipeline, Comforce, its agents, employees, independent contractors, representatives, and Does 1 ASSOC[ 10 through 300,inclusive,and each of them,performed work on the Project with a reckless indifference I I and willful and conscious disregard for the rights of Javier Ramos,deceased. 12 72. Plaintiffs are entitled to punitive damages against Comforce, and Does I through 300, 13 inclusive, and each of them, as corporate defendants because an officer, director or managing agent 14 thereof had advance knowledge of the unfitness of its employees and employed or retained them 15 with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful 16 conduct of its agents, employees, representatives, independent contractors, who were acting as an 17 officer, director or managing agent of Comforce, and Does 1 through 300, inclusive, and each of 18 them, and which officer, director or managing agent was personally guilty of oppression, fraud 19 and/or malice. 20 21 FOURTH CAUSE OF ACTION 22 NEGLIGENCE 23 AS AGAINST CAROLLO,CDM AND DOES I THROUGH 300,INCLUSIVE 24 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica 25 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors) 26 73. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through 72 27 above,as though fully set forth herein. 28 22 FIRST AMENDED COMPLAINT FOR DAMAGES 1 74. At all times relevant herein, Carollo, CDM, and Does 1 through 300, inclusive, and 2 each of them, were engaged in the business of providing consulting, design and related engineering 3 services for the Project. Carollo, CDM, and Does l through 300, inclusive, and each of them, 4 provided their drawings and plans to,among others,EBMUD. 5 75. Because of the dangerous and ultrahazardous nature of the Project, the Kinder 6 Pipeline and contents thereof, and the location of the Kinder Pipeline in the vicinity of the EBMUD 7 Pipeline and the Project, Carollo, CDM, and Does I through 300, inclusive, and each of them,had a STEINBI 8 nondelegable duty under, among other things, OSHA regulations and California statutes and AND 9 common law,to plan and design the Project in a safe manner to ensure the safety of the public and ASSOCI 10 those working on the Project,including Javier Ramos,deceased. 11 76. At all relevant times herein, Carollo, CDM, and Does 1 through 300, inclusive, and 12 each of them,breached said nondelegable duty by,among other things: 13 (a) Improperly preparing and designing the plans and maps for the Project. Carollo, 14 CDM, and Does 1 through 300, inclusive, and each of them, were aware of the incursion of 15 the Kinder Pipeline into the Project's path,as evidenced by their drawings; 16 (b) Improperly failing to evaluate the need for re-design of the Project at the time they, 17 and each of them, became aware of and discovered the proximity of the Kinder Pipeline to 18 the proposed EBMUD pipeline,and the incursion of the Kinder Pipeline into the Project; 19 (c) Improperly failing to address missing data or request additional data after reviewing 20 the pot-holing data derived from field data in the vicinity of station 100+15; 21 (d) With respect to CDM, and Does 1 through 300, inclusive, and each of them, 22 . improperly entering into a subcontract with Carollo regarding the portion of the Project at 23 issue in this lawsuit;and 24 (e) With respect to CDM and Does 1 through 300, inclusive, and each of them, 25 improperly supervising Carollo regarding its work on the portion of the Project at issue in this 26 lawsuit. 27 77. Carollo,CDM,and DOES I through 300,inclusive,inclusive,and each of them,acted 28 23 FIRST AMENDED COMPLAINT FOR DAMAGES I so as to cause the personal injury and property damage, and ultimate death of Javier Ramos, 2 deceased,and to legally cause the injuries and damages described below. 3 78. Carollo,CDM,and Does I through 300, inclusive, and each of them, knew, or in the 4 exercise of reasonable care should have known, that the conditions constituted an extremely 5 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably 6 be in the vicinity of or working on the Project, Kinder Pipeline or EBMUD Pipeline, and that the 7 danger would not be apparent to those persons,such as JAVIER RAMOS,deceased. Carollo, CDM, STEINBI 8 and Does 1 through 300, inclusive, and each of them, failed.to avoid these consequences or protect AND 9 others,including Javier Ramos,deceased,from these consequences. Under the circumstances of this ASSOCI 10 case involving excavation next to the high-pressure Kinder Pipeline, the conduct of Carollo, CDM, 11 and Does 1 through 300, inclusive, and each of them, was an extreme departure from the ordinary 12 standard of conduct. 13 79. As a direct and legal result of the alleged conduct of defendants Carollo, CDM, and 14 Does 1 through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his 15 health, strength,and activity,and ultimately died. He suffered unjustifiable and substantial physical 16 pain and mental suffering before his death. 17 80. As a direct and legal result of the negligence and/or gross negligence of Carollo,CDM, 18 and Does 1 through 300, decedent Javier Ramos was killed and plaintiffs sustained the damages as 19 hereinabove alleged. 20 8.1. The above-alleged acts of Carollo,CDM,and Does 1 through 300,inclusive,and each 21 of them, were willful, wanton, malicious, oppressive, despicable, and/or fraudulent, and justify an 22 award of punitive damages. At all times mentioned herein, Carollo, CDM, and their employees, 23 agents, representatives, independent contractors, and Does 1 through 300, inclusive, inclusive, and 24 each of them were guilty of malice, oppression, fraud, and/or a willful and conscious disregard for 25 the rights of Javier Ramos, deceased. Given the dangerous and ultrahazardous nature of the work 26 performed on the Project, the Kinder Pipeline, and the close proximity of the Kinder.Pipeline to the 27 EBMUD Pipeline, Carollo, CDM, their agents, employees, independent contractors, representatives, 28 24 FIRST AMENDED COMPLAINT FOR DAMAGES I and Does 1 through 300, inclusive, and each of them,performed work on the Project with a reckless 2 indifference and willful and conscious disregard for the rights of Javier Ramos,deceased. 3 82. Plaintiffs are entitled to punitive damages against Carollo, CDM, and Does 1 through 4 300, inclusive, and each of them, as corporate defendants because an officer, director or managing 5 agent thereof had advance knowledge of the unfitness of its employees and employed or retained 6 them with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful 7 conduct of its agents, employees, representatives, independent contractors, who were acting as an STEINBI 8 officer,director or managing agent of Carollo,CDM,and Does 1 through 300,inclusive, and each of AND 9 them, and which officer, director or managing agent was personally guilty of oppression, fraud ASSOCI 10 and/or malice. 11 FIFTH CAUSE OF ACTION 12 NEGLIGENCE FOR VIOLATION OF VEHICLE CODE SECTION 17151 AS AGAINST 13 DOES 1 THROUGH 300,INCLUSIVE 14 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica 15 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors) 16 83. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through 82 17 above,as though fully set forth herein. 18 84. Plaintiffs are ignorant of the true names and capacities of the owner(s)and/or bailee(s) 19 of the backhoe vehicle which struck the Kinder Pipeline,and therefore sue these defendants as Does 20 1 through 300,by such fictitious names. Plaintiffs will amend this complaint to allege the true names 21 and capacities when ascertained. Plaintiffs are informed and believe, and on that basis allege, that 22 each of said fictitiously named defendants is responsible in some manner for the occurrences herein 23 alleged,and that the injuries herein alleged were proximately caused by said conduct. 24 85. Defendants Does 1 through 300, and each of them, were the owner(s) or bailee(s) of 25 the backhoe vehicle which struck the Kinder Pipeline, causing the flammable material within to 26 escape. At all times relevant herein, the operator of the backhoe vehicle (Does I through 300, and 27 each of them)was using, operating and/or driving the backhoe vehicle with the permission,consent 28 25 FIRST AMENDED COMPLAINT FOR DAMAGES I and knowledge of the owner(s)or bailee(s)of the backhoe vehicle. 2 86. The backhoe operator(Does 1 through 300,and each of them) was a permissive user 3 of the backhoe vehicle which struck the Kinder Pipeline. 4 87. Defendants Does 1 through 300, inclusive, and each of them, acted negligently, 5 carelessly, and recklessly so as to cause the personal injury and ultimate death of Javier Ramos, 6 deceased,and to legally cause the injuries and damages described below. 7 88. Defendants Does I through 300,inclusive,and each of them,knew, or in the exercise 8 of reasonable care should have known, that the conditions constituted an extremely dangerous STEINBI AND 9 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the ASSOCI 10 vicinity of or working on the Project,EBMUD Pipeline,and that the danger would not be apparent to 11 persons such as Javier Ramos,deceased. Under the circumstances of this case involving excavation 12 next to the high-pressure Kinder Pipeline, the conduct of Does 1 through 300, inclusive, and each of 13 them, was an extreme departure from the ordinary standard of conduct, and constitutes gross 14 negligence. 15 89. As a direct and legal result of the negligence and/or gross negligence of defendants 16 Does 1 through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his 17 health, strength, and activity, and ultimately died. Prior to his death, he suffered unjustifiable and 18 substantial physical pain and mental suffering. 19 90. As a further direct and legal result of the negligence and/or gross negligence,of 20 Defendants Does I through 300, inclusive, and each of them, Javier Ramos incurred personal and 2I property damage in an amount according to proof at trial. 22 91. As a further direct and legal result of the negligence and/or gross negligence of 23 defendants Does 1 through 300, inclusive, and each of them, Javier Ramos, deceased, incurred 24 injuries leading to his death,and plaintiffs sustained the damages as hereinabove alleged. 25 SIXTH CAUSE OF ACTION 26 NEGLIGENT OPERATION OF MOTOR VEHICLE AS AGAINST 27 DOES 1.THROUGH 300,INCLUSIVE 28 26 FIRST AMENDED COMPLAINT FOR DAMAGES I (By Maria Ramos,individually and as.successor in interest to Javier Ramos,deceased;By Erica 2 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors) 3 92. Plaintiffs, and each of. them, incorporate each and every allegation contained in 4 paragraphs 1 through 91 above,as though fully set forth herein. 5 93. Plaintiffs,and each of them,are ignorant of the true name and capacity of the driver or 6 operator of the backhoe vehicle which struck the Kinder Pipeline, and therefore sues this defendant 7 as Does 1 through 300, by such fictitious name. Plaintiffs will amend this complaint to allege the 8 operator's true name and capacity when ascertained. Plaintiffs are informed and believe, and on that STEINBI AND 9 basis allege,that the fictitiously named defendant is responsible in some manner for the occurrences ASSOCI 10 herein alleged,and that the injuries herein alleged were proximately caused by his conduct. 11 94. Defendants Does 1 through 300,was the driver/operator of the backhoe which struck 12 the Kinder Pipeline, causing the flammable material within to escape. At all times relevant herein, 13 Does 1 through 300,negligently and carelessly drove,operated or controlled the backhoe vehicle so 14 as to cause it to strike the Kinder Pipeline. 15 95. Defendants Does 1 through 300, and each of them, was a permissive user of the 16 backhoe vehicle which struck the Kinder Pipeline. 17 96. Defendants Does 1 through 300, inclusive, and each of them, acted negligently, 18. carelessly, and recklessly so as to cause the per injury and ultimate death of Javier Ramos, 19 deceased,and to legally cause the injuries and damages described below. 20 97. Defendants Does 1 through 300,inclusive,and each of them,knew,or in the exercise 21 of reasonable care should have known, that the conditions constituted an extremely dangerous 22 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the 23 vicinity of or working on the Project, EBMUD Pipeline, or Kinder Pipeline, and that the danger 24 would not be apparent to persons such as Javier Ramos,deceased. Under the circumstances of this 25 case involving excavation next to the high-pressure Kinder Pipeline,the conduct of defendants Does 26 1 through 300,inclusive,and each of them,was an extreme departure from the ordinary standard of 27 conduct,and constitutes gross negligence. 28 27 FIRST AMENDED COMPLAINT FOR DAMAGES 1 98. The tortious conduct alleged above by defendants Does 1 through 300, inclusive and 2 each of them, was, among other things, negligent, careless, reckless, grossly negligent and/or 3 despicable, with the despicable conduct being carried on by defendants Does 1 through 300, and 4 each of them, with a willful and conscious disregard of the rights and/or safety of others, including 5 but not limited to Javier Ramos,deceased. Among other things,defendants Does 1 through 300,and 6 each of them, was aware of the probable dangerous consequences of its conduct and willfully and .7 deliberately failed to avoid those consequences, which resulted in the personal injuries and property STEINBI 8 damage,and subsequent death of Javier Ramos,deceased. AND 9 99. As a direct and legal result of the negligence and/or gross negligence of defendants ASSOCI 10 Does 1 through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his 11 health, strength, and activity, and ultimately died. Prior to his death, he suffered unjustifiable and 12 substantial physical pain and mental suffering. 13 100. As a further direct and legal result of the negligence and/or gross negligence of 14 defendants Does 1 through 300,inclusive, and each of them,Javier Ramos,deceased, incurred,prior 15 to his death, damage to his person and personal property in an amount according to proof at trial. 16 The above-alleged acts of defendants Does 1 through 300,inclusive, and each of them, were willful, 17 wanton, malicious, oppressive, despicable, and/or fraudulent, and justify an award of punitive 18 damages. At all times mentioned herein, defendants Does 1 through 300, its employees, agents, 19 representatives,independent contractors were guilty of malice,oppression,fraud,and/or a willful and 20 conscious disregard for the rights of Javier Ramos, deceased. Given the dangerous and 21 ultrahazardous nature of the work performed on the Project, the Kinder Pipeline, and the close 22 proximity of the Kinder Pipeline to the EBMUD Pipeline, Does 1 through 300, and each of them, 23 performed work on the Project with a reckless indifference and willful and conscious disregard for 24 the rights of Javier Ramos,deceased. 25 101. Plaintiffs are entitled to punitive damages against defendants Does 1 through 300, 26 inclusive, and each of them, as corporate defendants because an officer, director or managing agent 27 thereof had advance knowledge of the unfitness of its employees and employed or retained them 28 28 FIRST AMENDED COMPLAINT FOR DAMAGES I with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful 2 conduct of its agents, employees, representatives, independent contractors, who were acting as an 3 officer, director or managing agent of Does 1 through 300, and each of them, and which officer, 4 director or managing agent was personally guilty of oppression, fraud and/or malice. Plaintiffs are 5 entitled to punitive damages against defendants Does 1 through 300, and each of them, as they are 6 personally guilty of malice,oppression or fraud. 7 8 STEINBI AND 9 ASSOC[ 10 11 SEVENTH CAUSE OF ACTION 12 STRICT LIABILITY AS AGAINST KMEP,SFPP,KMGP,KMI,COMFORCE,AND 13 DOES 1 THROUGH 300,INCLUSIVE 14 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica 15 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors) 16 102. Plaintiffs, and each of them, incorporate each and every allegation contained in 17 paragraphs 1 through 101 above,as though fully set forth herein. 18 103. Defendants KMEP, SFPP, KMGP, KMI, Comforce, and Does 1 through 300, 19 inclusive, and each of them,designed,manufactured, sold,owned, controlled, operated,maintained, 20 inspected, distributed, transported, located, field marked, monitored, and managed the Kinder 21 Pipeline and ultrahazardous and flammable material contained therein. 22 104. Such activities create the existence of a high degree of risk of harm to persons, land 23 and personal property of others,create the likelihood that harm that results from it will be great, and 24 are inappropriate to the surrounding of residential neighborhoods, schools and highly-populated 25 communities where it was carried on, such that their value to such communities is outweighed by 26 their dangerous attributes. 27 105. Because of the dangerous and ultrahazardous nature and condition of the Kinder 28 29 FIRST AMENDED COMPLAINT FOR DAMAGES I Pipeline and contents contained therein, and the location of the Kinder Pipeline in the vicinity of the 2 EBMUD Pipeline and Project, KMEP, SFPP, KMGP, KMI, Comforce, and Does 1 through 300, 3 inclusive, and each of them, had a nondelegable duty to own, supervise, control, operate, manage, 4 locate,field mark,monitor,and inspect the Kinder Pipeline accurately and in a safe manner to ensure 5 the safety of the public and those working on the Project,including Javier Ramos,deceased. 6 106. As set forth above, Javier Ramos, deceased, was killed while working on the Project 7 and EBMUD Pipeline. The activities of KMEP, SFPP,KMGP,KMI,Comforce,and Does 1 through 8 300,and each of them,were a substantial factor in causing injury and the subsequent death of Javier STEINBI AND 9 Ramos,deceased. The harm to Javier Ramos,deceased,was of the kind that would be anticipated as ASSOCI 10 a result of the risk created by owning, supervising, controlling, operating, managing, locating, field 11 marking, monitoring, and inspecting the Kinder Pipeline through a residential neighborhood, near a 12 school and through a highly-populated community. 13 107. Defendants KMEP, SFPP, KMGP, KMI, Comforce, and Does I through 300, 14 inclusive, and each of them, caused the personal injury and ultimate death of Javier Ramos, 15 deceased,and legally caused the injuries and damages described below. 16 108. As a direct and legal result of the dangerous and ultrahazardous conditions designed, 17 manufactured, sold, owned, controlled, operated, maintained, inspected, distributed, transported, 18 located, field marked, monitored, and managed by defendants KMEP, SFPP, KMGP, KMI, 19 Comforce,and Does 1 through 300, inclusive, and each of them, Javier Ramos, deceased, was hurt 20 and injured in his health, strength, and activity, and ultimately died. He suffered unjustifiable and 21 substantial physical pain and mental suffering before his death. 22 109. As a further direct and legal result of the dangerous and ultrahazardous conditions 23 designed, manufactured, sold, owned, controlled, operated, maintained, inspected, distributed, 24 transported, located, field marked, monitored, and managed by defendants KMEP, SFPP, KMGP, 25 KMI, Comforce, and Does 1 through 300, inclusive, and each of them, Javier Ramos, incurred 26 damage to his personal property, before his death, in an amount according to proof at trial. The 27 above-alleged acts of defendants KMEP, SFPP, KMGP, KMI, Comforce, and Does 1 through 300, 28 30 FIRST AMENDED COMPLAINT FOR DAMAGES I inclusive, and each of them, were willful, wanton, malicious, despicable, oppressive, and/or 2 fraudulent, and justify an award of punitive damages. At all times mentioned herein, defendants 3 KMEP, SFPP, KMGP, KMI, Comforce, its employees, agents, representatives, independent 4 contractors, and Does 1 through 300,inclusive, and each of them were guilty of malice, oppression, 5 fraud, and/or a willful and conscious disregard for the rights of Javier Ramos, deceased. Given the 6 dangerous and ultrahazardous nature of the work performed on the Project,the Kinder Pipeline, and 7 the close proximity of the Kinder Pipeline to the EBMUD Pipeline, KMEP, SFPP, KMGP, KMI, 8 Comforce,its agents, employees, independent contractors,representatives,and Does 1 through 300, STEINBI AND 9 inclusive, and each of them, performed work on the Project with a reckless indifference and willful ASSOCI 10 and conscious disregard for the rights of Javier Ramos,deceased. I 1 110. Plaintiffs are entitled to punitive damages against defendants KMEP, SFPP, KMGP, 12 KMI, Comforce, and Does I through 300, inclusive, and each of them, as corporate defendants 13 because an officer,director or managing agent thereof had advance knowledge of the unfitness of its 14 employees and employed or retained them with a conscious disregard of the rights or safety of 15 others, authorized or ratified the wrongful conduct of its agents, employees,- representatives, 16 independent contractors who were acting as an officer, director or managing agent of KMEP, SFPP, 17 KMGP,KMI, Comforce, and Does 1 through 300, and each of them, and which officer, director or 18 managing agent was personally guilty of oppression,fraud and/or malice. 19 EIGHTH CAUSE OF ACTION 20 WILLFUL MISCONDUCT 21 AGAINST KMEP,SFPP,KMGP,KMI,AND DOES 1 THROUGH 300,INCLUSIVE 22 (By Maria Ramos,individually and as successor in interest to Javier Ramos,deceased;By Erica 23 Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors) 24 111. Plaintiffs, and each of them, incorporate each and every allegation contained in 25 paragraphs 1 through 110 above,as though fully set forth herein. 26 112. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, 27 knew that construction workers were excavating a trench in connection with the Project, in 28 31 FIRST AMENDED COMPLAINT FOR DAMAGES I accordance with the written contract between EBMUD and Mountain Cascade, and Does 1 through 2 300, inclusive, and each of them. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, 3 and each of them, knew that the route of the EBMUD Pipeline was to be parallel to, east of and 4 above the Kinder Pipeline,which was owned and operated by KMEP,SFPP,KMGP,KMI and Does 5 1 through 300,inclusive,and each of them. 6 113. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, 7 were the operators or owners of a subsurface installation within the meaning of Government Code 8 section 4216. STEINBI AND 9 114. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, ASSOCI 10 knew that EBMUD's contract with Mountain Cascade, and Does 1 through 300, inclusive, and each 11 of them,required compliance with all applicable statutes,laws,regulations,orders and standards. 12 115. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, 13 knew that to guard against extreme risk of injury to persons and property, including those working 14 on the Project such as Javier Ramos, deceased, the contract between EBMUD and Mountain 15 Cascade, and Does 1 through 300, inclusive, specified, among other things, that work along South 16 Broadway in Walnut Creek, California was adjacent to. the Kinder Pipeline, that construction 17 activities should be coordinated with,among others,Larry Hosler,manager pipeline maintenance and 18 Roy Bridge, manager pipeline safety, for KMEP, SFPP, KMGP, KMI, and Does I through 300, 19 inclusive,and Mountain Cascade. 20 116. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, 21 knew that the Kinder Pipeline had to be properly located in advance of excavation to avoid any 22 physical contact with the Kinder Pipeline as a result of any construction activities. 23 117. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, 24 were aware of their respective responsibilities under,among other things,the Government Code and 25 Code of Regulations to properly plan and design the Project and determine the.location of and 26 properly field mark the Kinder Pipeline to allow for safe excavation in the vicinity thereof. 27 118. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, 28 32 FIRST AMENDED COMPLAINT FOR DAMAGES I knew that operating, locating, field marking, and excavating in the vicinity of the Kinder Pipeline 2 created the existence of a special, high degree of risk of harm to persons and property, including 3 those working on the Project with welding tools, such as Javier Ramos, deceased. KMEP, SFPP, 4 KMGP, KMI, and Does 1 through 300, inclusive, and each of them, knew that Mountain Cascade 5 and its employees including Javier Ramos,deceased, were working on the EBMUD Pipeline, which 6 considerably increased the extreme risk of harm due to highly flammable nature of the contents of 7 the Kinder Pipeline. 8 119. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, STEINBI AND 9 knew that those working on the Project, including Javier Ramos, deceased, would rely on, among ASSOCI 10 others, KMEP, SFPP, KMGP,KMI, and Does 1 through 300, inclusive, and each of them, for their 11 safety to properly design,plan, locate, field mark,and excavate in the vicinity of the Kinder Pipeline 12 in compliance with state laws,statutes,orders,and regulations. 13 120. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, 14 has experienced several accidents relating to its pipelines,including but not limited to those incidents 15 referenced in the General Allegations set forth above. KMEP, SFPP, KMGP, KMI, and Does 1 16 through 300, inclusive, and each of them, have experienced at least 44 accidents relating to its 17 pipelines since January 1,2003. Of these 44 accidents, at least 14 resulted in releases of more than 18 five barrels of refined petroleum products into the surrounding environment. At least 8 known 19 accidents resulting in releases into the surrounding environment have occurred since April 27,2004. 20 All 8 of these accidents occurred in or near high consequence areas(as defined in 49 C.F.R. section 21 195.450)and/or major transportation corridors. Of these 8 accidents, 5 are attributed to outside force 22 damage (e.g. third party damage caused by an excavator or other source, damage caused during 23 construction,etc.) At least 3 of these 5 instances went unaddressed by KMEP, SFPP,KMGP, KMI, 24 and Does 1 through 300, inclusive, and each of them, for an indeterminate period despite internal 25 inspection tool runs conducted on the pipelines prior to the accidents. Approximately 50% of 26 reported hazardous liquid pipeline accidents suffered by KMEP, SFPP, KMGP, KMI, and Does 1 27 through 300,inclusive,.and each of them,between 1998 and 2003 were caused by outside forces. 28 33 FIRST AMENDED COMPLAINT FOR DAMAGES 1 121. According to the United States Department of Transportation's "Pipeline and 2 Hazardous Materials Safety Administration," the recent accidents of KMEP, SFPP, KMGP, KMI, 3 and Does I through 300, inclusive, and each of them, indicate a "widespread failure to adequately 4 detect and address the effects of outside force damage and corrosion. This failure has systematically 5 affected the integrity of the Pacific Operations Unit." This pattern and practice of KMEP, SFPP, 6 KMGP,KMI,and Does 1 through 300,inclusive,and each of them, is one to put profits over people, 7 in that KMEP,SFPP,KMGP,KMI,and Does 1 through 300,inclusive,and each of them,believe that 8 few adverse consequences will result from its failures to avoid accidents involving the pipelines.This STEINBI AND 9 systematic failure flows from the top on down through the corporate levels of KMEP,SFPP,KMGP, ASSOCI 10 KMI, and Does 1 through 300, inclusive, and each of them, and includes those decision making 11 individuals including the officers,directors and managing agents of KMEP, SFPP,KMGP,KMI,and 12 Does 1 through 300,inclusive,and each of them. I3 122. KMEP, SFPP, KMGP, KMI, and Does l through 300, inclusive, and each of them, 14 knew that the initial contract with EBMUD was awarded to Modern Continental,which contract was 15 terminated by EBMUD. KMEP,SFPP,KMGP,KMI,and Does 1 through 300,inclusive,and each of 16 them, knew that in or about 2003 or 2004, Modern Continental was excavating for the EBMUD 17 Pipeline and determined that a segment of the Kinder Pipeline was approximately 13 feet from where 18 it had been field marked by KMEP,SFPP,KMGP,KMI,and Does 1 through 300,inclusive,and each 19 of them. Modern Continental expressed this concern to, among others, EBMUD, KMEP, SFPP, 20 KMGP, KMI, Comforce, and Does 1 through 300, inclusive, and each of them. In addition, in or 21 about August of 2003,EBMUD requested that KMEP,SFPP,KMGP,KMI,and Does 1 through 300, 22 inclusive, and each of them, relocate a section of the Kinder Pipeline because it was, among other 23 things,hard to locate and a hindrance to completion of the Project. In or about early 2004, Modern 24 Continental, EBMUD, and Does 1 through 300, inclusive, and each of them, were extremely 25 concerned about the location of the Kinder Pipeline because it was still in the way of the excavation 26 for the EBMUD Pipeline and Project. Among others,Modern Continental, EBMUD,KMEP, SFPP, 27 KMGP, KMI, and Does 1 through 300, inclusive, and each of them, discussed in early 2003 the 28 34 FIRST AMENDED COMPLAINT FOR DAMAGES I location of the Kinder Pipeline and how to continue working on the Project despite the location of 2 the Kinder Pipeline. 3 123. KMEP, SFPP, KMGP, KMI, and DOES 1 through 300, inclusive, and each of them, 4 knew that prior to November 9,2004,KMEP,SFPP,KMGP,KMI and Does 1 through 300,inclusive, 5 and each of them, had numerous recent accidents involving its pipelines, and also had numerous 6 recent workplace injuries. 7 124. Because of the construction work in the direct vicinity of the high pressure Kinder STEINBI 8 Pipeline, KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, knew AND 9 that it had to guard against the extreme risk of injury to persons and/or property in the area,including ASSOCI 10 those persons working on the Project along with the general public. KMEP, SFPP, KMGP, KMI, 11 and Does 1 through 300, inclusive, and each of them, knew that construction activities were to be 12 coordinated with all parties participating in the Project. 13 125. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, 14 knew of the peril of an explosion if the flammable liquids or gasses inside the Kinder Pipeline 15 escaped in the vicinity of the construction of the EBMUD Pipeline where workers, including Javier 16 Ramos, deceased,worked with welding tools. KMEP, SFPP, KMGP, KMI, Comforce, and Does 1 17 through 300, inclusive, and each of them, knew that the injury and subsequent death of Javier 18 Ramos, deceased, was a probable, as opposed to possible, result of that danger, as Javier Ramos, 19 deceased, was working inside the EBMUD Pipeline using welding tools, and had no means of 20 making an easy or fast escape in the event of an explosion and thus would be trapped inside the 21 EBMUD Pipeline. 22 126. At all relevant times herein, KMEP, SFPP, KMGP, KMI, and Does 1 through 300, 23 inclusive,and each of them,intentionally,knowingly,deliberately,and/or consciously failed to avoid 24 the above referenced peril by,among other things: 25 (a) Failing to hire, train, retain and supervise its employees, representatives, agents and 26 independent contractors with respect to the performance of the work on the Project. For 27 example, employees lacked the experience and knowledge to read the maps and drawings 28 35 FIRST AMENDED COMPLAINT FOR DAMAGES I showing the location of the Kinder Pipeline,and in fact, failed to even review such maps and 2 drawings. KMEP,SFPP,KMGP,KMI,and Does 1 through 300,inclusive, and each of them, 3 failed to train its employees with respect to the importance of reviewing and analyzing the 4 necessary maps and drawings to determine the accurate location of the Kinder Pipeline, and 5 how to review and analyze such drawings and maps; 6 (b) Failing to correctly determine the location of the Kinder Pipeline before allowing 7 excavation in the area of the EBMUD Pipeline and Kinder Pipeline,pursuant to,among other STEINBI 8 things,Government Code section 4216.4.Among others,Mike Biggs,Peter Brooks,and Mark AND 9 Presley failed to review and analyze the maps and drawings,and instead relied on their visual ASSOCI 10 observation that there was no tree in the area of the Kinder Pipeline. In fact,the tree had been I 1 removed years prior but the roots still existed and the offset of the Kinder Pipeline was 12 present; 13 (c) Failing to create, obtain and/or analyze the proper utility maps, plans and drawings 14 showing the location of the Kinder Pipeline,prior to allowing EBMUD, Mountain Cascade, 15 and Does 1 through 300,inclusive,and each of them,to excavate and work in the area of the 16 EBMUD Pipeline and Kinder Pipeline; 17 (d) Failing to relocate the Kinder Pipeline to a location away from the immediate vicinity 18 of the Project and EBMUD Pipeline after concerns were previously brought forth by,among 19 others, EBMUD and Modem Continental regarding the location of the Kinder Pipeline to the 20 EBMUD Pipeline and Project. 21 (e) Failing to address the concerns of entities working on the Project or who worked on 22 the project(including among others Modern Continental,EBMUD,and Does 1 through 300, 23 inclusive,and each of them)regarding the location of the Kinder Pipeline to the vicinity of the .24 EBMUD Pipeline,and failing to inform Mountain Cascade and Does 1 through 300,inclusive, 25 and each of them,of these concerns; 26 (f) Falsely representing to Mountain Cascade, EBMUD and others the location of the 27 . Kinder Pipeline, such that Mike Biggs, Mark Presley and Peter Brooks stated to EBMUD, 28 36 FIRST AMENDED COMPLAINT FOR DAMAGES I Mountain Cascade,and others that the field marking was accurate,that excavators need only 2 follow the field marking devices to avoid conflict with the Kinder Pipeline and that additional 3 locating and monitoring was unnecessary. The Kinder Pipeline was not located where 4 KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, 5 represented it to be.Further,KMEP, SFPP,KMGP,KMI,and Does 1 through 300, inclusive, 6 and each of them, failed to locate and field mark the location which may be affected by the 7 excavation to the extent and degree of accuracy that the information was available either in 8 their own records or through standard locating techniques other than excavation. In fact, STEINBI AND 9 Mark Presley admitted that he often did not even use drawings or maps,as he found them to ASSOCI 10 be inaccurate. Mr. Presley stated that the Kinder Pipeline only bent around tree roots, and 11 since he saw no tree,the Kinder Pipeline did not deviate from a straight path;and 12 (g) Falsely representing to Mountain Cascade, EBMUD and others that they employed 13 properly trained and supervised personnel to locate and field mark the Kinder Pipeline. 14 Among others, both Mike Biggs, Mark Presley and Peter Brooks lacked the skills and 15 experience necessary to accurately read and interpret drawings and maps, and to actually 16 know that the reading of drawings and maps was crucial to locating the Kinder Pipeline. 17 127. The conduct alleged above by KMEP, SFPP, KMGP, KMI, and Does 1 through 300, 18 inclusive,inclusive and each of them, was, among other things,despicable conduct being carried on 19 with a willful and conscious disregard of the rights and/or safety of others, including but not limited 20 to.Javier Ramos,deceased. Among other things, KMEP, SFPP, KMGP, KMI, and Does 1 through 21 300, inclusive, and each of them,was aware of the probable dangerous consequences of its conduct . 22 and willfully and deliberately failed to avoid those consequences, which resulted in the personal 23 injuries and property damage,and subsequent death of Javier Ramos,deceased. 24 128. When KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of 25 them, made the representations as set forth above, they knew them to be false, had no reasonable 26 ground for believing them to be true, and knew that they did not have the knowledge which they 27 professed. 28 37 FIRST AMENDED COMPLAINT FOR DAMAGES 1 129. Although the representations were not made directly to Javier Ramos, deceased, 2 KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, made the 3 representations to Mountain Cascade and others with the intent that such representations be relied 4 upon in excavating the EBMUD Pipeline. Javier Ramos, deceased, is entitled to protection as he 5 suffered property damage and physical injury and subsequent death resulting from Mountain 6 Cascade's and others justifiable reliance on the representations that the Kinder Pipeline was properly 7 marked. 8 130. Mountain Cascade and its employees, including Javier Ramos, deceased, justifiably STEINBI AND 19 relied on said representations that the workplace was safe from extreme risk of harm. As a result, ASSOCI 10 Javier Ramos,deceased,was injured in his person and also sustained personal property damage, and 11 subsequently died. 12 131. KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, 13 knew, or in the exercise of reasonable care should have known, that the conditions constituted an 14 extremely dangerous condition and unreasonable risk of serious injury or death to those who would 15 foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline, and 16 that the danger would not be apparent to those persons, such as Javier Ramos, deceased. KMEP, 17 SFPP,KMGP, KMI,and Does I through 300, inclusive, and each of them,willfully and deliberately 18 failed to avoid these consequences or protect others, including Javier Ramos, deceased, from these 19 consequences. Under the circumstances of this case involving excavation next to the high-pressure 20 Kinder Pipeline,the conduct of KMEP, SFPP,KMGP,KMI,and Does I through 300,inclusive,and 21 each of them,constitutes malice,oppression and/or fraud. 22 132. As a direct and legal result of the alleged conduct of KMEP, SFPP,KMGP,KMI,and 23 Does I through 300,inclusive,and each of them,Javier Ramos,deceased,was hurt and injured in his 24 health, strength,and activity,and ultimately died. He suffered unjustifiable and substantial physical 25 pain and mental suffering before his death. 26 133. The above-alleged acts of KMEP, SFPP, KMGP, KMI, and Does 1 through 300, 27 inclusive, and each of them, were willful, wanton, malicious, oppressive, despicable, and/or 28 38 FIRST AMENDED COMPLAINT FOR DAMAGES I fraudulent, and justify an award of punitive damages. At all times mentioned herein, KMEP, SFPP, 2 KMGP, KMI, its employees, agents, representatives, independent contractors, and Does l through 3 300, inclusive, and each of them were guilty of malice, oppression, fraud, and/or a willful and 4 conscious disregard for the rights of those working on the EBMUD Pipeline,including Javier Ramos, 5 deceased. Given the dangerous and ultrahazardous nature of the work performed on the Project, the 6 Kinder Pipeline, and the close proximity of the Kinder Pipeline to the EBMUD Pipeline, the false 7 representations and conduct of KMEP, SFPP, KMGP,KMI,and Does I through 300, inclusive, and STEINBI 8 each of them, was despicable, malicious, fraudulent, oppressive, and made with a conscious ' AND 9 disregard for the safety of among others,Javier Ramos,deceased. ASSOCI 10 134. Plaintiff is entitled to punitive damages against KMEP,SFPP,KMGP,KMI,and Does I I 1 through 300, inclusive, and each of them, as corporate defendants because an officer, director or 12 managing agent thereof had advance knowledge of the unfitness of its employees, agents, 13 representatives, or independent contractors (including but not limited to Mike Biggs, Mark Presley 14 and Peter Brooks) and employed or retained them with a conscious disregard of the rights or safety 15 of others, authorized or ratified the wrongful conduct of its agents, employees, representatives, 16 independent contractors and Does 1 through 300,inclusive,and each of them,who were acting as an 17 officer, director or managing agent of KMEP, SFPP, KMGP, KMI, and Does I through 300, 18 inclusive,and each of them, and which officer, director or managing agent was personally guilty of 19 oppression, fraud and/or malice. Among other things, an officer, director or managing agent of 20 KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, and each of them, ratified the 21 conduct of its employees, agents, representatives or independent contractors by continuing to 22 employ them,failing to criticize,censure,reprimand,terminate,suspend or take other remedial action 23 against them,issuing press releases,interfering with attempts of the regulatory agencies including Cal- 24 OSHA to interview them, and providing them with legal counsel so as to defend their conduct. 25 Furthermore, a vice-president of operations and engineering of KMEP, SFPP, KMGP, KMI, and 26 Does 1 through 300, inclusive, inclusive, falsely stated in questions following the incident that "the 27 workers had been provided maps and should have been aware of the fuel pipeline's location." The 28 39 FIRST AMENDED COMPLAINT FOR DAMAGES I press release issues by KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, inclusive, 2 dated November 10, 2004, stated that defendants "do not expect this incident will have significant 3 adverse financial impact,"nor did it appear the incident"will require major environmental clean-up." 4 135. Despite full knowledge of the consistent pattern and practice of conduct by its 5 employees, agents, representatives or independent contractors which led to regularly occurring 6 pipeline accidents, and despite full awareness of all dangers to human life and property associated 7 with pipeline incidents, KMEP, SFPP, KMGP, KMI, and Does 1 through 300, inclusive, inclusive, STEINBI 8 intentionally, deliberately and/or consciously failed to improve, update, revise, or change its AND 9 ineffective safety policies and practices,training of employees, and communication within the ranks ASSOCI 10 of the corporation, which led directly to its prior incidents and the incident involving Javier Ramos, 11 deceased. 12 136. The above-described conduct of KMEP, SFPP, KMGP, KMI, and Does 1 through 13 300,inclusive,which includes intentional and conscious disregard of safety standards and acting in a 14 manner calculated to stonewall and/or deceive regulatory authorities for their own financial benefit 15 was despicable and carried on with a willful and conscious disregard for the rights and safety of 16 others,including Javier Ramos,deceased. 17 18 19 20 21 22 23 NINTH CAUSE OF ACTION 24 WRONGFUL DEATH AND SURVIVAL ACTION 25 AGAINST EBMUD,KMEP,SFPP,KMGP,KMI,CDM,WALNUT CREEK,CONTRA 26 COSTA,COMFORCE,and DOES I THROUGH 300 INCLUSIVE 27 (By Maria Ramos,individually and as successor in interest to JAVIER RAMOS,deceased;By Erica 28 40 FIRST AMENDED COMPLAINT FOR DAMAGES I Ramos,Ramona Ramos,Gricelda Ramos,Jasmin Ramos and Gerardo Ramos,minors) 2 137. Plaintiffs, and each of them, incorporate each and every allegation contained in 3 paragraphs 1 through 136 above,as though fully set forth herein. 4 138. Plaintiff Maria Ramos is the sole surviving spouse of Javier Ramos, deceased. 5 Plaintiffs Erica Ramos, Ramona Ramos, Gricelda Ramos, Jasmin Ramos, and Gerardo Ramos, by 6 and through their guardian ad litem,were the sole surviving children of Javier Ramos,deceased. 7 139. As a direct result of the carelessness,recklessness,negligence and gross negligence.of 8 EBMUD, KMEP, SFPP,KMGP, KMI, CDM, Walnut Creek, Contra Costa, Comforce, and Does 1 STEINBI AND 9 through 300,inclusive,and each of them,Javier Ramos died on November 10,2004. ASSOCI 10 140. Prior to the death of Javier Ramos, deceased, EBMUD, KMEP, SFPP, KMGP, KMI, 11 CDM,Walnut Creek,Contra Costa,Comforce,and Does.1 through 300,inclusive,and each of them, 12 engaged in the conduct as alleged herein above. 13 141. Prior to the death of Javier Ramos, deceased,plaintiffs, and each of them, lived with 14 Javier Ramos,deceased,and were dependent on him for their support and maintenance. 15 142. At all times prior to his death, Javier Ramos, deceased, was a faithful and dutiful 16 husband to Maria Ramos, and a dutiful father to Erica Ramos, Ramona Ramos, Gricelda Ramos, 17 Jasmin Ramos and Gerardo Ramos. Plaintiffs, and each of them,enjoyed the love,society,comfort, 18 and attention of Javier Ramos,deceased. 19 143. As a direct and proximate result of the conduct as alleged above by defendants 20 EBMUD, KMEP, SFPP, KMGP, KMI, CDM, Walnut Creek, Contra Costa, Comforce, and Does 1 21 through 300,inclusive, and each of them,which proximately and directly caused the death of Javier 22 Ramos, deceased, plaintiffs, and each of them, have sustained pecuniary loss and loss of society, 23 comfort,attention,services,love and support of Javier Ramos,deceased, in an amount according to 24 proof at trial. 25 144. As a further direct and proximate result of the conduct as alleged above by defendants 26 EBMUD, KMEP, SFPP, KMGP, KMI, CDM, Walnut Creek, Contra Costa, Comforce, and Does 1 27 through 300,inclusive, and each of them,which proximately and directly caused the death of Javier ! 28 41 FIRST AMENDED COMPLAINT FOR DAMAGES I Ramos, deceased, plaintiffs, and each of them, have incurred funeral and burial expenses, in an 2 amount according to proof at trial. 3 PRAYER FOR RELIEF 4 WHEREFORE, plaintiffs Maria Ramos, individually and as successor in interest to Javier 5 Ramos, deceased•, Erica Ramos, Ramona Ramos, Gricelda Ramos, Jasmin Ramos and Gerardo 6 Ramos pray for judgment against defendants,and each of them,as follows: 7 AS TO ALL CAUSES OF ACTION: STEINBI 8 1. For general damages in an amount to be proven at trial; AND 9 2. For special damages in an amount to be proven at trial; ASSOCI 10 3. For punitive and exemplary damages in an amount to be proven at trial and as 11 requested 12 in this Complaint; 13 4. For wrongful death and survival damages according to proof; 14 5. For costs of suit;and 15 6. For such other and further relief as the Court deems just and proper. 16 17 DATED: December 6,2005 STEINBRECHER AND ASSOCIATES 18 Mark C. Lieber By: 19 EDWARD STEINBRECHER,ESQ. 20 MARK LIEBER,ESQ. 21 Attomeys for Plaintiffs,Maria Ramos, Erica Ramos,Ramona Ramos,Gricelda Ramos,Jasmin 22 Ramos and Gerardo Ramos 23 24 25 26 27 28 42 .FIRST AMENDED COMPLAINT FOR DAMAGES 13 Q6QaflC� �l G�il6QD 10-31-05 1 DAVID F.BEACH,ESQ.,(SBN: 127135) K,TORRE,CLERK OF THE COURT .,(SBN: 76232 SMEMPA COLRTOFCALiF.ORNIA GARY G.DEVINE,ESQ., ) COUNTY OF CONTRA COSTA-MARTINEZ 2 ANNETTE HOLLAND,ESQ.,(SBN: 151707) BY: C.BRADY,DEPUTY CLERK LAW OFFICES OF DAVID F.BEACH,P.C. 3 100 Stony Point Road,Suite 185 Santa Rosa,California 95401 4 Telephone(707)547-1690. Facsimile(707)547-1694 5 Attorneys for Plaintiffs 6 LAURA REYES,individually and as successor in interest to MIGUEL REYES,ADRIAN REYES and 7 JAZMIN REYES,by and through their guardian ad litem,and MIGUEL REYES,JR. 8 9 SUPERIOR COURT OF CALIFORNIA,COUNTY OF CONTRA COSTA 10 11 Judicial Council Coordination Proceedings 12 GAS PIPELINE EXPLOSION No.:4433 CASES 13 (Unlimited Civil) 14 THIRD AMENDED COMPLAINT FOR Coordinated Actions: DAMAGES 15 Knox,et al.v.MOUNTAIN CASCADE,et REYES,et al v.EAST BAY MUNICIPAL 16 al. (Contra Costa Sup.Ct.Case No.C 05- UTILITY DISTRICT,et al. (Alameda Sup. 00281);FARLEY v.MOUNTAIN Ct.Case No.RG-05-207720) 17 CASCADE,et al(Contra Costa Sup.Ct. Case No.C 05-01573);REYES,et al v. 18 EAST BAY MUNICIPAL UTILITY DISTRICT,et al.(Alameda Sup.Ct.Case 19 No.RG-05-207720);ARIAS,et al.V. KINDER MORGAN,et al.(Alameda Sup. .20 Ct.Case No.RG-05-195567);ANGELES, et al v.KINDER MORGAN,et al. 21 (Alameda Sup.Ct.Case No.RG-05- 195680) 22 23 24 PARTIES AND VENUE 25 Plaintiffs,and each of them,allege: 26 1. Plaintiff LAURA REYES is,at all times mentioned herein was,a resident of the County 27 of Sutter, State of California, and a successor in interest of MIGUEL REYES, deceased, and 28 succeeds to this cause of action because there.is no personal representative of the estate of MIGUEL THIRD AMENDED COMPLAINT Page 1 .ic wt-vo 17 kl I REYES, deceased. LAURA REYES brings this complaint in her individual capacity and her 2 capacity as successor in interest as the sole surviving spouse of MIGUEL REYES,deceased. On 3 or about April 6,2005,LAURA REYES filed the declaration under penalty of perjury required by 4 Code of Civil Procedure section 377.32. 5 2. Plaintiff MIGUEL REYES,JR.is,and at all times mentioned herein was,a resident of 6 the County of Sutter,State of California,and brings this complaint in his individual capacity as the 7 adult son of MIGUEL REYES,deceased. 811 3. Plaintiff ADRIAN REYES,a minor by and through his guardian ad litem,is,and at all 9 times mentioned herein was,a resident of the County of Sutter,State of California,and brings this 10 complaint in his individual capacity as the minor son of MIGUEL REYES,deceased. Plaintiffs 11 have obtained an order from the court for the appointment of a guardian ad litem for ADRIAN 12 REYES. 13 4,Plaintiff JAZMIN REYES,a minor by and through her guardian ad litem,is, and at all 14 times mentioned herein was,a resident of the County of Sutter,State of California,and brings this 15 complaint in her individual capacity as the minor daughter of MIGUEL REYES,deceased.Plaintiffs 16 have obtained an order from the court for the appointment of a guardian ad litem for JAZMIN 17 REYES. 18 5. Defendant EAST BAY MUNICIPAL UTILITY DISTRICT(hereinafter"EBMUD")is, 19 and at all times mentioned herein was,a publicly owned utility formed under the Municipal District 20 Act passed by the California Legislature in 1921. EBMUD maintains its administrative and 21 headquarters'offices and is situated in the City of Oakland,County of Alameda,State of California. 22 EBMUD planned, designed, owned, supervised, controlled, and constructed a public works 23 construction project known as the Walnut Creek-San Ramon Valley Improvement Project 24 ("Project,")which involved the installation of a waterpipeline("EBMUD Pipeline.") The route of 25 the EBMUD Pipeline was to be generally parallel to,east of,and above a high-pressure fuel pipeline 26 system located in,among other places,the City of Walnut Creek,County of Contra Costa,State of 27 California ("Kinder Pipeline.") The section of the Project and Kinder Pipeline at issue in this 28 complaint was located within downtown Walnut Creek,California in the direct vicinity of business THIRD AMENDED COMPLAINT Page 2 I entities, a school, and residences. On or about March 2, 2005, Plaintiffs, and each of them, 2 presented their claims to EBMUD pursuant to Government Code section 910. On or about March 3 3,2005,EBMUD rejected the claims in their entirety. 4 6. Defendant MOUNTAIN CASCADE INC.(hereinafter"MOUNTAIN CASCADE")is, 5 and at all times mentioned herein was,a corporation duly organized and existing under the laws of 6 the State of California. MOUNTAIN CASCADE is a pipeline contractor and maintains its 7 headquarters' offices in the City of Livermore,County of Alameda,State of California. EBMUD 8 hired, among others,MOUNTAIN CASCADE as the general contractor on the Project, and the 9 events in issue occurred during the performance of a contract entered into in the County ofAlameda, 10 State of California. MOUNTAIN CASCADE is the largest pipeline contractor in the region,and 11 prides itself that it`routinely takes] on tough projects that our competitors shy away from an 12 turn[s]them into profit." MOUNTAIN CASCADE represents that the foundation of its success is 13 built on its dedication to"knowledge,integrity,quality and superior service." 14 7. Defendant KINDER MORGAN ENERGY PARTNERS,L.P.(hereinafter"KMEP")is, 15 and at all times mentioned herein was,a limited partnership duly organized and existing under the 16 laws of the State of Delaware,and qualified and doing business in the State of California. KMEP 17 is, and at all times relevant herein was, the designer, manufacturer, owner, operator, manager, 18 locator, field marker, monitor, and inspector of a high-pressure fuel pipeline system located in, 19 among other places,the City of Walnut Creek,County of Contra Costa,State of California("Kinder 20 Pipeline.") KMEP is the largest independent owner/operator of products pipeline in the United 21 States,transporting more than two million barrels a day of gasoline,jet fuel and diesel fuel and up 22 to 7.8 billion cubic feet a day of natural gas liquids through more than 10,000 miles of pipelines, 23 of which some 3,850 are in its Pacific pipeline system. It is the largest publicly traded pipeline 24 limited partnership in the United States in terms of market capitalization. 25 8. Defendant SFPP,LP(hereinafter"SFPP")is,and at all times mentioned herein was,a 26 limited partnership duly organized and existing under the laws of the State of Delaware, and 27 qualified and doing business in the State of California. SFPP is,and at all times relevant herein was, 28 the designer,manufacturer,owner,operator,manager,locator,field marker,monitor,and inspector THIRD AMENDED COMPLAINT Page 3 I of the Kinder Pipeline. SFPP is an operating partnership and subsidiary limited partnership of 2 KMEP. 3 9. Defendant KINDER MORGAN G.P., INC. (hereinafter"KMGP")is, and at all times 4 mentioned herein was, a corporation duly organized and existing under the laws of the State of 5 Delaware,and qualified and doing business in the State of California as,among other things, the 6 general partner of KMEP. KMGP, is, among other things, the wholly owned subsidiary of 7 Defendant KINDER MORGAN,INC. KMGP is,and at all times relevant herein was,the designer, 8 manufacturer,owner,operator,manager,locator,field marker,monitor,and inspector of the Kinder 9 Pipeline. 10 10. Defendant KINDER MORGAN, INC. (hereinafter "Kmn is, and at all times 11 mentioned herein was, a corporation duly organized and existing under the laws of the State of 12 Kansas,and qualified and doing business in the State of California. KMGP is the wholly-owned 13 subsidiary of KMI.KMI is,and at all times relevant herein was,the designer,manufacturer,owner, 14 operator,manager,locator,field marker,monitor,and inspector of the Kinder Pipeline. KMI is one 15 of the largest mid-stream energy companies in the United States,owning and/or operating more than 16 35,000 miles of natural gas and products pipeline. 17 11. CAMP DRESSER&McKEE INC.("hereinafter"CDM")is,and at all times mentioned 18 herein was,a corporation duly organized and existing under the laws of the State of Massachusetts, 19 and qualified and doing business in the State of California. CDM entered into a contract with, 20 among others,EBMUD to,among other things,provide consulting,design and related engineering 21 services for the Project. CDM then entered into a subcontract with CAROLLO ENGINEERS to, 22 among other things,provide consulting,design and related engineering services for the portion of 23 the Project at issue in this lawsuit. Plaintiffs have filed the required certificate of merit pursuant to 24 Code of Civil Procedure section 411.35. .25 12. Defendant CAROLLO ENGINEERS.(hereinafter"CAROLLO")is, and at all times 26 mentioned herein was,a professional corporation duly organized and existing under the laws of the 27 State of Arizona,and qualified and doing business in the State of California. CAROLLO entered 28 into a subcontract agreement with CDM to, among other things,provide consulting, design and THIRD AMENDED COMPLAINT Page 4 I related engineering services for the Project,the portion of which is at issue in this lawsuit. Plaintiffs 2 have filed the required certificate of merit pursuant to Code of Civil Procedure section 411.35. 3 13. Defendant COMFORCE TECHNICAL SERVICES,INC.(hereinafter"COMFORCE") 4 is,and at all times mentioned herein was,a corporation duly organized and existing under the laws 5 of the State of Delaware,and qualified and doing business in the State of California. COMFORCE 6 is a provider of contingent staffing, information technology, consulting and human resource 7 outsourcing solutions,including. COMFORCE provided temporary staffing of pipeline construction 8 inspectors to and was hired by,among others,KMEP,SFPP,KMGP,and KMI,with respect to the 9 Project and Kinder Pipeline. 10 14. DOES 1-50,inclusive,and each of them,are,and at all times mentioned herein were, 11 individuals and/or business organizations form unknown that were engaged in the business of 12 planning,designing,owning,supervising,controlling and constructing the Project. 13 15. DOES 51-100,inclusive,and each of them,are,and at all times mentioned herein were, 14 individuals and/or business organizations form unknown were engaged in the construction, 15 supervision,operation,and control of the Project as contractors or subcontractors hired by EBMUD, 16 and DOES 1-50,and each of them,and/or MOUNTAIN CASCADE. 17 16. DOES 101-150,inclusive, and each of them, are, and at all times mentioned herein 18 were,individuals and/or business organizations form unknown that designed,manufactured,sold, 19 owned,controlled,operated,maintained,inspected,distributed,transported,located,field marked, 20 monitored,and managed the Kinder Pipeline and/or contents therein. 21 17. DOES 151-200,inclusive, and each of them, are, and at all times mentioned herein 22 were, individuals and/or business organizations form unknown that were the owner(s) and/or 23 bailee(s)of the backhoe vehicle which struck the Kinder Pipeline. 24 18. DOES 201-250,inclusive, and each of them, are, and at all times mentioned herein 25 were, individuals and/or business organizations form unknown that drove and/or operated the 26 backhoe vehicle which struck the Kinder Pipeline. 27 19. DOES 251-300,inclusive, and each of them, are, and at all times mentioned herein 28 were,individuals and/or business organizations form unknown that owned or controlled the real THIRD AMENDED COMPLAINT Page 5 I property where the Project,EBMUD Pipeline,and Kinder Pipeline was located. 2 20. Plaintiffs,and all of them,are ignorant of the true names and/or capacities of defendants 3 sued herein as DOES 1-300,inclusive,and therefore sue these defendants by such fictitious names. 4 Plaintiffs will amend this complaint to allege their true names and capacities when ascertained. 5 Plaintiffs are informed and believe, and on that basis allege,that each of said fictitiously named 6 defendants is responsible in some manner for the occurrences herein alleged,and that the injuries 7 herein alleged were proximately caused by said their conduct. 8 21. Plaintiffs are informed and believe and on that basis allege that at all times mentioned 9 herein,each of the defendants was the agent and employee of each of the remaining defendants,and 10 in doing the things alleged in this complaint,was acting within the course and scope of this agency 11 and employment,with the knowledge,approval,consent and ratification of each of the remaining 12 defendants. 13 22. Plaintiffs are informed and believe,and thereon allege,that at all.times relevant,there 14 exists,and has existed,a unity of interest and ownership between KMEP,SFPP,KMGP and KMI, 15 and DOES 101-150,and each of them, such that any individuality and separateness between the 16 entities has ceased to exist. Upon information and belief,KMEP is the alter ego of KMGP,SFPP, 17 KMI,and DOES 101-150,and each of them. Upon information and belief,SFPP is the alter ego 18 of KMEP, KMGP, KMI, and DOES 101-150, and each of them. Upon information and belief, 19 KMGP is the alter ego of KMI,and DOES 101-150. Among other things,(a)KMEP was and is 20 completely controlled,dominated,managed and operated by KMGP and KMI,and DOES 101-150, 21 and each of them,(b)SFPP was and is completely controlled,dominated,managed and operated 22 by KMEP,KMGP,KMI and DOES 101-150,and each of them,(c)KMGP was and is completely 23 controlled,dominated,managed and operated by KMI,and DOES 101-150,and each of them,(d) 24 KMEP, SFPP, KMGP,KMI and DOES 101-150, and each of them,have permitted assets to be 25 transferred between themselves without adequate consideration,(e)KMEP,SFPP,KMGP,KMI and 26 DOES 101-150,and each of them,have disguised corporate profits in order to evade liability and 27 the payment of judgments,and(f)KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each of 28 them, was and is inadequately capitalized. Adherence to the fiction of the separate existence of THIRD AMENDED COMPLAINT Page 6 I KMEP,SFPP, KMGP,KMI and DOES 101-150,and each of them,would permit an abuse of the 2 corporate privilege and would sanction fraud or promote injustice because the entities,and each of 3 them,used in bad faith for the purpose of evading liability and as a means of allowing the other 4 entities, and each of them,to profit from their control and manipulation free from the claims of 5 Plaintiffs. 6 23. Venue is proper in the Superior Court of the State of California,County of Contra Costa. 7 GENERAL ALLEGATIONS 8 24. Plaintiffs, and each of them, incorporate each and every allegation contained in 9 paragraphs I through 23 above,as though fully set forth herein. 10 25. EBMUD,and DOES 1-50,and each of them,planned,designed,owned, supervised, 11 controlled, and constructed the Project,which involved the installation of the EBMUD Pipeline. 12 EBMUD began the design of the Project in 2000. EBMUD entered into a contract with CDM for 13 CDM to,among other things, provide consulting,design and related engineering services for the 14 Project. CDM later entered into a subcontract with CAROLLO,whereby CAROL.LO would,among 15 other things, provide consulting, design and related engineering services for the portion of the 16 Project which is at issue in the present lawsuit. 17 26. E$MUD's general contract was initially awarded on or about October of 2002 to 18 Modem Continental Construction Co. In late 2002,the full Kinder Pipeline was marked by a line 19 rider employed by KMEP, SFPP,KMGP, KML COMFORCE,and DOES 101-150,and each of 20 them. The individual was supposed to be using conductive locating equipment. The individual 21 marked the Kinder Pipeline by placing paint marks and flags along the Kinder Pipeline,but failed 22 to indicate a bend in the line at station 100+15 where an oak tree once stood. 23 27. Prior to beginning field work on the Project, a field meeting was held on or about 24 February 3,2003 between,among others,Modern Continental Co.,EBMUD,KMEP,SFPP,KMI, 25 KMGP,COMFORCE,and DOES 1-150,and each of them. At the conclusion of the field meeting, 26 representatives of EBMUD,KMEP,SFPP,KMGP,KMI,COMFORCE,and DOES 1-150,and each 27 of them,walked the South Broadway portion of the Kinder Pipeline. No fresh field markings were 28 observed and no offsets were marked or pointed out by EBMUD, KMEP, SFPP, KMGP, KMI, THIRD AMENDED COMPLAINT Page 7 1 COMFORCE,and DOES 1-150,and each of them,around station 100+15. As of March of 2003, 2 no field markings were visible. 3 28. In addition,in or about 2003 or 2004,Modern Continental Co.was excavating for the 4 EBMUD Pipeline and Project, and determined that a segment of the Kinder Pipeline was 5 approximately 13 feet from where it had been field marked by KMEP, SFPP, KMGP, KMI, 6 COMFORCE, and DOES 101-150, and each of them. Modern Continental Co. expressed this 7 concern to,among others,EBMUD,KMEP,SFPP;KMGP,KMI,and DOES 1-50,and 101-150, 8 and each of them. In addition, in or about August of 2003,EBMUD requested KMEP, SFPP, 9 KMGP,KMI,and DOES 101-150,and each of them,to relocate a section of the Kinder Pipeline 10 because it was,among other things,hard to locate and a hindrance to completion of the Project. In 11 or about early 2004, Modern Continental, EBMUD, and DOES 1-50, and each of them, were 12 extremely concerned about the location of the Kinder Pipeline because it was still in the way of the 13 excavation for the EBMUD Pipeline and Project. Among others, Modern Continental Co., 14 EBMUD,KMEP,SFPP,KMGP,KMI,and DOES 1-50,and 101-150,and each of them,discussed 15 in early 2003 the location of the Kinder Pipeline and how to continue working on the Project despite 16 the location of the Kinder Pipeline. 17 29. On or about May 28, 2004, EBMUD issued a "Notice of Default Termination' to 18 Modern Continental Construction Co. 19 30. After EBMUD terminated its general contract with Modern Continental Construction 20 Co.,EBMUD,and DOES 1-50,and each of them,contracted in August of 2004 with,among others, 21 MOUNTAIN CASCADE and DOES 51-100, and each of them,to complete construction of the 22 Project. In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act 23 of the Public Contract Code of the State of California,MOUNTAIN CASCADE and DOES 51-100, 24 and each of them,thereafter subcontracted with,listed and employed,among others,Matamoros 25 Pipeline,Inc.to,among other things,weld together segments of the EBMUD Pipeline. Matamoros 26 Pipeline,Inc.employed MIGUEL REYES,deceased,as a welder. 27 31. Prior to starting excavation, the EBMUD contract required a field meeting between 28 EBMUD and MOUNTAIN CASCADE. The meeting occurred on September 28,2004 and was THIRD AMENDED COMPLAINT Page 8 1 attended by representatives of EBMUD,MOUNTAIN CASCADE,KMEP,SFPP,KMGP,KMI, 2 COMFORCE, and DOES 1-150,and each of them. At that meeting,the line rider employed by 3 KMEP,SFPP,KMGP, KMI,COMFORCE,and DOES 1-150,and each of them,represented that 4 the line markers were directly over the Kinder Pipeline and that the Kinder Pipeline ran straight 5 between the line markers. The attendees of the meeting walked the entire length of the Kinder 6 Pipeline using a 100-foot tape to show the location of the proposed EBMUD Pipeline and determine 7 if there would be any interference with the Kinder Pipeline. Fieldwork commenced in late 8 September,2004. 9 32. In or about October of 2004,benching for the trenching excavator in the area of the 10 offset took place. MOUNTAIN CASCADE,and DOES 1-150,and each of them,benched over the 11 offset at station 100+15. As of November 3 and 4, 2004, there were no markings indicating the 12 offset. 13 33. On or about November 8, 2004, a site meeting occurred which was required by 14. MOUNTAIN CASCADE three days earlier, and attended by, among others, MOUNTAIN 15 CASCADE,KMEP,SFPP,KMGP,KMI,COMFORCE,EBMUD,and DOES 1-150,and each of 16 them. One of the purposes of the meeting was to provide assurance that MOUNTAIN CASCADE 17 was excavating properly;MOUNTAIN CASCADE did not specifically inquire about the offset at 18 station 100+15,and neither KMEP,SFPP,KMGP,KMI,COMFORCE,EBMUD,and DOES 1-150, 19 and each of them,represented anything about the offset. 20 34. On or about November 9,2004,MIGUEL REYES,deceased,was working within the 21 course and scope of his employment at the Project,welding inside the EBMUD Pipeline,which lay 22 in a trench being excavated for the EBMUD Pipeline and following South Broadway between 23 Newell Avenue.and Rudgear Road in the City of Walnut Creek,County of Contra Costa,State of 24 California. 25 35. Near to where MIGUEL REYES,deceased,was working, a backhoe operator(Greg 26 Berry)under the direct supervision and control of EBMUD, MOUNTAIN CASCADE, KMEP, 27 SFPP,KMGP,KMI and DOES 1-250,and each of them,excavated-the trench in which the EBMUD 28 Pipeline was being installed. THIRD AMENDED COMPLAINT Page 9 1 36. The Kinder Pipeline lay immediately adjacent to the EBMUD Pipeline trench. In fact, 2 there was a bend in the Kinder Pipeline at station 100+15,where the Kinder Pipeline veered around 3 the roots of an oak tree that once stood at that location. 4 37. As a result of the conduct of defendants, and each of them, herein, on or about 5 November 9,2004,a backhoe operator(Greg Berry)as an employee of MOUNTAIN CASCADE 6 and/or DOES 51-100,151-250,and each of them,so operated the backhoe as to penetrate the Kinder 7 Pipeline, causing the flammable material within to escape. Plaintiffs, and each of them, are 8 informed and believe,and thereon allege,that the flammable material and byproducts thereof from 9 the explosion entered the EBMUD Pipeline in which MIGUEL REYES,deceased,was working, 10 resulting in personal injuries to MIGUEL REYES,deceased,and resulting in his death,in a manner 11 presently unknown to Plaintiffs,and each.of them. Before his death,MIGUEL REYES,deceased, 12 suffered,among other things, damage to his personal property,personal injury, and unjustifiable 13 and substantial physical pain and mental suffering. MIGUEL REYES, deceased, was not killed 14 instantly but suffered a horrendous death trapped in the EBMUD Pipeline after the Kinder Pipeline 15 was ruptured. 16 38. Prior to November 9,2004,KMEP,SFPP,KMGP,KMI and DOES 101-150,and each 17 of them,experienced numerous incidents involving its pipelines, which resulted in,among other 18 things,personal injury or property damage. KMEP,SFPP,KMGP,KMI and DOES 101-150,and 19 each of them,own a 45%interest in the Cochin Pipeline System,a 1900-mile natural gas liquids 20 pipeline operating between Alberta and Ontario Canada, traversing through seven states in the 21 United States. On or about July 16,2003,the United States portions of the Cochin Pipeline System 22 . experienced a rupture and fire at a rural location about 75 miles from Fargo,North Dakota. 23 39. Approximately two weeks later on or about July 30,2003,a pipeline owned/operated 24 by KMEP,SFPP,KMGP,and KMI,and DOES 101-150,and each of them,broke in a subdivision 25 in Tucson,Arizona,spraying gasoline more than fifty feet into the air,saturating five homes,and 26 contaminating soil and groundwater. 27 40. On or about April 29,2004,a pipeline owned/operating by KMEP,SFPP,KMGP,KMI 28 and DOES 101-150,and each of them,which transported gasoline,jet fuel and diesel to Chico and THIRD AMENDED COMPLAINT Page 10 1 Sacramento, California and Reno, Nevada experienced a rupture not discovered until April 30, 2 2004. As a result,approximately 1,000 barrels or 42,000 gallons of fuel spilled into about 250 acres 3 of Suisin Marsh,a wetland in Northern California. Criticized for the delayed response,a managing 4 agent of KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each of them,replied"You can't cry 5 wolf every time you see an anomaly." 6 41. On or about November 22,2004,a pipeline owned/operated by KMEP,SFPP,KMGP, 7 KMI, and DOES 101-150, and each of them, transporting gasoline from Colton to Barstow, 8 California into Las Vegas,Nevada experienced a rupture in a rural area near Baker, California. . 9 California Highway Patrol officers on nearby Interstate 15 noticed a strong odor and closed the 10 freeway, which led to the discovery of a fifty to sixty foot gasoline vapor geyser. The spokesman 11 for KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,(Larry Pierce)stated"it's 12 not a significant financial impact to the company at all. It's more of an operational issue." 13 42. In the six years prior to November 9,2004,MOUNTAIN CASCADE,and DOES 51- 14 100,and each of them,accumulated several safety violations,and was issued several citations from 15 California OSHA for workplace accidents,including but not limited to,the death a worker when 16 a pipe fell on him,the death of a worker when a crane he tried to operate without training collapsed 17 and smashed him against a pipe,severe lung damage suffered by three workers when poisonous 18 gases overcame them in a sewer in which they were working,and the personal injury of a worker 19 when his leg was crushed between two water trucks. MOUNTAIN CASCADE,and DOES 51-100, 20 were also the subject of several civil lawsuits involving wrongful death, as well as criminal 21 prosecutions. 22 43. On or about May 5, 2005,California OSHA issued two Serious Willful Citations to 23 KMEP for violation of California Code of Regulations("CCR")sections 1541(b)(1)and 1511(b) 24 totaling$140,000;the evidence showed that KMEP committed an intentional and knowing violation 25 and KMEP was conscious of the fact that what it was doing constituted a violation,or was aware 26 that a hazardous condition existed and made no reasonable effort to eliminate the hazard. OSHA 27 also issued one Serious Citation to CAROLLO for violation of CCR section 1511(b) totaling 28 $22,500,one Serious Citation to MOUNTAIN CASCADE for violation of CCR section 1511(b) THIRD AMENDED COMPLAINT Page I I I totaling $22,500, and one Serious Citation to EBMUD for violation of CCR section 1511(b) 2 totaling $6,750; OSHA determined with respect to CAROLLO,MOUNTAIN CASCADE, and 3 EBMUD,there was a substantial probability that death or serious physical harm could result from 4 the condition which existed or from the practices,operations or processes at the workplace. 5 FIRST CAUSE OF ACTION 6 NEGLIGENCE 7 AS AGAINST EBMUD AND DOES 1-50,INCLUSIVE 8 (By LAURA REYES,successor in interest to MIGUEL REYES,deceased) 9 44. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through 43 10 above,as though fully set forth herein. 11 45. At all times relevant herein,EBMUD,and DOES 1-50,inclusive,and each of them,was 12 engaged in the business of planning,designing,owning,supervising,controlling and constructing 13 the Project. EBMUD had an employee(s) or representative(s) at the Project site to exercise 14 exclusive control and supervision of the Project,providing surveying control and quality assurance. 15 46. Because of the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline 16 and contents thereof,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline 17 and the Project, EBMUD and DOES 1-50,inclusive,and each of them,had a nondelegable duty 18 under, among other things,OSHA regulations and California statutes and common law, to plan, 19 design, own, supervise, control, survey, and construct the Project in a safe manner to ensure the 20 safety of the public and those working on the Project,including MIGUEL REYES,deceased. 21 47. At all relevant times herein,EBMUD and DOES 1-50, inclusive, and each of them, .22 breached said nondelegable duty by,among other things: 23 ♦ negligently and carelessly and recklessly hiring MOUNTAIN CASCADE and others 24 including KMEP,SFPP,KMGP,KMI,COMFORCE and DOES 51-150 and 201- 25 250, and each of them, to perform the work on the Project, given, among other 26 things,their poor safety records; 27 ♦ negligently and carelessly and recklessly supervising and exercising retained control 28 over MOUNTAIN CASCADE and others including KMEP,SFPP,KMGP,KMI, THIRD AMENDED COMPLAINT Page 12 I COMFORCE, CAROLLO, CDM, and DOES 51-150 and 201-250, and each of 2 them,in the performance of their work on the Project; 3 ♦ negligently and carelessly and recklessly failing to correctly determine the location 4 of the Kinder Pipeline before allowing MOUNTAIN CASCADE and DOES 51-100 5 and 201-250,and each of them,to excavate in the area of the EBMUD Pipeline and 6 Kinder Pipeline. EBMUD was aware of the incursion of the Kinder Pipeline into the 7 Project as evidenced by the maps created by CAROLLO and CDM,and reviewed 8 by EBMUD. EBMUD reviewed the pot-holing data derived from the field and 9 failed to address the missing data in the vicinity of the offset and failed to request 10 additional data. 11 ♦ negligently and carelessly and recklessly pressuring and requiring MOUNTAIN 12 CASCADE and DOES 51-100 and 201-250, and each of them, to complete their 13 work on the Project in a time frame that was not feasible without endangering the 14 safety of the public and those working on the Project,including MIGUEL REYES, 15 deceased; 16 ♦ negligently and carelessly and recklessly failing to create,obtain and/or analyze the 17 proper design maps and field marking data, prior to allowing MOUNTAIN 18 CASCADE and DOES 51-100 and 201-250,and each of them,to excavate near the 19 EBMUD Pipeline and Kinder Pipeline; 20 ♦ negligently and carelessly and recklessly failing to obtain the proper permits and 21 other authority to allow for work to be completed by MOUNTAIN CASCADE and 22 DOES 51-150 and 201-250,and each of them,in the vicinity of the Kinder Pipeline 23 and EBMUD Pipeline; 24 ♦ negligently and carelessly and recklessly creating a dangerous condition of public 25 property by performing work,or allowing work to be performed on its behalf,on the 26 Project in the immediate vicinity of the Kinder Pipeline as opposed to another 27 location in the City of Walnut Creek, County of Contra Costa where the Kinder 28 Pipeline was not located; TWRD AMENDED COMPLAINT Page 13 I ♦ negligently and carelessly and recklessly failing to require KMEP,SFPP,KMGP, 2 KMI,and DOES 101-150, and each of them, to relocate the Kinder Pipeline to a 3 location away from the immediate vicinity of the EBMUD Pipeline and Project; 4 ♦ negligently and carelessly and recklessly failing to notify MOUNTAIN CASCADE 5 and DOES 51-100,and each of them,of concerns by other entities working on the 6 Project or who worked on the project(including among others Modern Continental 7 Construction Co.,KMEP, SFPP,KMGP,KMI, and DOES 51-150) regarding the 8 location of the Kinder Pipeline to the vicinity of the EBMUD Pipeline and Project; 9 ♦ negligently and carelessly and recklessly failing to proceed, or requiring 10 MOUNTAIN CASCADE,KMEP,SFPP,KMGP,KMI and DOES 51-150 and 201- 11 250, and each of them, to proceed with the work around the Kinder Pipeline and 12 EBMUD Pipeline through safe and acceptable means; 13 ♦ negligently and carelessly and recklessly failing to conduct, or requiring 14 MOUNTAIN CASCADE,KMEP,SFPP,KMGP,KMI and DOES 51-150,and each 15 of them, to conduct, daily inspections by a competent individual prior to the start 16 of work and as needed throughout the shift for evidence of a situation that could 17 result in dangerous and ultrahazardous condition,such as that which resulted in the 18 death of MIGUEL REYES,deceased;and 19 ♦ negligently and carelessly and recklessly failing to remove, or requiring 20 MOUNTAIN CASCADE,KMEP,SFPP,KMGP,KMI and DOES 51-150,and each 21 of them,to remove,individuals working on the Project,including MIGUEL REYES, 22 deceased,from the dangerous and ultrahazardous area until necessary precautions 23 had been taken to ensure the safety of those individuals, including MIGUEL 24 REYES,deceased. 25 48. EBMUD,and DOES 1-50,inclusive,and each of them,acted negligently,carelessly, 26 and recklessly so as to cause the personal injury and ultimate death of MIGUEL REYES,deceased, 27 and to legally cause the injuries and damages described below. 28 111 THIRD AMENDED COMPLAINT Page 14 1 49. EBMUD, and DOES 1-50, inclusive, and each of them,knew, or in the exercise of 2 reasonable care should have known,that the conditions constituted a extremely dangerous condition . 3 and unreasonable risk of serious injury or death to those who would foreseeably be in the vicinity 4 of the Project or working on the Project,and that the danger would not be apparent to persons such 5 as MIGUEL REYES,deceased. There was a substantial probability that death or serious physical 6 harm could result from the conditions. Under the circumstances of this case involving excavation 7 next to the high-pressure Kinder Pipeline,the conduct of EBMUD,and DOES 1-50,inclusive,and 8 each of them,was an extreme departure from the ordinary standard of conduct and constitutes gross 9 negligence. 10 50. As a direct and legal result of the negligence and/or gross negligence of EBMUD,and 11 DOES 1-50,inclusive,and each of them,MIGUEL REYES,deceased,was hurt and injured in his 12 health,strength,and activity,and ultimately died.He suffered unjustifiable and substantial physical 13 pain and mental suffering before his death. 14 51. As a further direct and legal result of the negligence and/or gross negligence of 15 EBMUD,and DOES 1-50,inclusive,and each of them,MIGUEL REYES incurred damage to his 16 personal property prior to his death in an amount according to proof at trial. 17 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES, 18 deceased, prays judgment against EBMUD, and DOES 1-50, inclusive, and each of them, as 19 hereinafter set forth. . 20 SECOND CAUSE OF ACTION 21 NEGLIGENCE 22 AS AGAINST MOUNTAIN CASCADE AND DOES 51-100 and 151-250,INCLUSIVE 23 (By Plaintiff LAURA REYES,successor in interest to MIGUEL REYES) 24 52. Plaintiffs, and each of them, incorporate each and every allegation contained in 25 paragraphs 1 through 51 above,as though fully set forth herein. 26 53. At all times relevant herein,MOUNTAIN CASCADE,and DOES 51-100 and 151-250, 27 inclusive,and each of them,was the general contractor or subcontractor hired by EBMUD for the 28 Project and was engaged in the construction,supervision,operation,and control of the Project. THIRD AMENDED COMPLAINT Page 15 1 54. Because of the dangerous and ultrahazardous nature of the Project and Kinder Pipeline, 2 and the location of the Kinder Pipeline in the vicinity of the.EBMUD Pipeline, MOUNTAIN 3 CASCADE and DOES 51-100,and 151-250,inclusive,and each of them,had a nondelegable duty 4 under, among other things, OSHA regulations and California statutes and common law, to 5 supervise,control,operate,survey,and construct the Project in a safe manner to ensure the safety 6 of the public and those working on the Project,including MIGUEL REYES,deceased. 7 55.At all relevant times herein,MOUNTAIN CASCADE and DOES 51-100,and 151-250, 8 inclusive,and each of them,breached said nondelegable duty by,among other things: 9 ♦ improperly hiring,training,retaining,and supervising its employees,representatives, 10 agents and independent contractors in the performance of the work on the Project; 11 ♦ improperly failing to correctly determine the location of the Kinder Pipeline before 12. excavating in the area,or allowing its employees,agents,or representatives and/or 13 DOES 51-100 and 252-250 to excavate in the area, of the EBMUD Pipeline and 14 Kinder Pipeline,pursuant to,among other things,Government Code section 4216.4. 15 MOUNTAIN CASCADE was aware of the incursion of the Kinder Pipeline into the 16 Project, by way of, among other things, the drawings and plans provided to 17 MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,by EBMUD 18 and others; 19 ♦ improperly attempting,through pressure by and requirements of EBMUD and DOES 20 1-50,and each of them,to complete the work on the Project in a time frame that was 21 not feasible without endangering the safety of the public and those working on the 22 Project,including MIGUEL REYES,deceased; 23 ♦ improperly failing to create,obtain and/or analyze the proper utility maps showing 24 the location of the Kinder Pipeline,prior to excavating,or allowing DOES 51-100, 25 and 151-250,and each of them,to excavate,near the EBMUD Pipeline and Kinder 26 Pipeline; 27 ♦ improperly failing to obtain the proper permits and other authority to allow for work 28 to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline; TIURD AMENDED COMPLAINT Page 16 I ♦ improperly failing to require KMEP,SFPP,KMGP and KMI,and DOES 101-150, 2 and each of them, to relocate the Kinder Pipeline to a location away from the 3 immediate vicinity of the Project; 4 ♦ improperly failing to inquire as to concerns of other entities working on the Project 5 or who worked on the project (including among others Modern .Continental 6 Construction Co.,EBMUD,KMEP,SFPP,KMGP,KMI and DOES 1-50 and 101- 7 150,and each of them)regarding the location of the Kinder Pipeline to the vicinity 8 of the Project and EBMUD Pipeline; 9 ♦ improperly failing to proceed with the work around the Kinder Pipeline and 10 EBMUD Pipeline through safe and acceptable means, pursuant to, among other 11 things,Government Code section 4216.4; 12 ♦ improperly entering into a mutual agreement with KMEP,SFPP,KMGP,and KMI 13 and DOES 101-150, and each of them, allowing for the use of power-operated or 14 power-driven excavating or boring equipment within the vicinity of the Kinder 15 Pipeline and EBMUD Pipeline; 16 ♦ improperly failing to enter into a mutual agreement with KMEP,SFPP,KMGP,and 17 KMI and DOES 101-150,and each of them,allowing for.the use of power-operated .18 or power-driven excavating or boring equipment within the vicinity of the Kinder 19 Pipeline and EBMUD Pipeline; 20 ♦ improperly failing to conduct daily inspections,or requiring others to conduct,by a 21 competent individual prior to the start of work and as needed throughout the shift for 22 evidence of a situation that could result in a dangerous and ultrahazardous condition, 23 such as the condition resulting in the death of MIGUEL REM,deceased; 24 ♦ improperly failing to remove,or requiring others to remove, individuals working on 25 the Project, including MIGUEL REYES, deceased, from the dangerous and 26 ultrahazardous area until necessary precautions had been taken to ensure the safety 27 of those individuals,including MIGUEL REYES; 28 THIRD AMENDED COMPLAINT Page 17 I ♦ improperly failing to timely contact Underground Service Alert prior to excavating, 2 or allowing excavation,near the Kinder Pipeline and EBMUD Pipeline,pursuant to, 3 among other things,Government Code section 4216.2; 4 ♦ improperly failing to timely notify Underground Service Alert when the field 5 markings,if any,for the Kinder Pipeline were no longer reasonably visible; 6 ♦ improperly failing to notify Underground Service Alert of KMEP,SFPP,KM GP, 7 and KMI's,and DOES 101-150,and each of them,failure to locate and field mark 8 the Kinder Pipeline prior to excavation; 9 ♦ improperly failing to obtain an inquiry identification number from Underground 10 Service Alert prior to commencing or allowing excavation near the Kinder Pipeline I 1 and EBMUD Pipeline pursuant to, among other things,Government Code section 12 4216.2;and 13 ♦ improperly failing to obtain a revalidation of the inquiry identification number from 14 Underground Service Alert after said number expired pursuant to, among other 15 things,Government Code section 4216.2. 16 56. The tortious conduct alleged above by MOUNTAIN CASCADE,and DOES 51-100, 17 and 151-250,inclusive and each of them,was,among other things,negligent,careless,reckless,and 18 grossly negligent. Among other things,MOUNTAIN CASCADE,and DOES 51-150,and 151-250, 19 inclusive,and each of them,was aware of the probable dangerous consequences of its conduct and 20 failed to avoid those consequences,which resulted in the personal injuries and property damage,and 21 subsequent death of MIGUEL REM,deceased. 22 57.MOUNTAIN CASCADE,and DOES 51-150,and 151-250,inclusive,and each of them, 23 acted so as to cause the personal injury and ultimate death of MIGUEL REYES,deceased,and to 24 legally cause the injuries and damages described below. 25 58. MOUNTAIN CASCADE, and DOES 51-150, and 151-250, inclusive, and each of 26 them,knew,or in the exercise of reasonable care should have known,that the conditions constituted 27 a extremely dangerous condition and unreasonable risk of serious injury or death to those who 28 would foreseeably be in the vicinity of the Project or working on the Project,and that the danger THIRD AMENDED COMPLAINT Page 18 I would not be apparent to persons such as MIGUEL REYES,deceased. MOUNTAIN CASCADE, 2 and DOES 51-100,and 151-250,inclusive,and each of them,failed to avoid these.consequences 3 or protect others, including MIGUEL REYES, deceased, from these consequences. Under the 4 circumstances of this case involving excavation next to the high-pressure Kinder Pipeline, the 5 conduct of MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,and each of them, 6 was an extreme departure from the ordinary standard of conduct. 7 59. As a direct and legal result of the conduct of MOUNTAIN CASCADE,and DOES 51- 8 100,and 151-250,inclusive,and each of them,MIGUEL REYES,deceased,was hurt and injured 9 in his health,strength,and activity,and ultimately died.He suffered unjustifiable and substantial 10 physical pain and mental suffering before his death. 11 60. As a further direct and legal result of the conduct of MOUNTAIN CASCADE, and 12 DOES 51-100, and 151-250,inclusive,and each of them,MIGUEL REYES,deceased,incurred 13 damage to his personal property,prior to his death,in an amount according to proof at trial. 14 WHEREFORE,Plaintiff LAURA REYES,as successor in interest to MIGUEL REYES, 15 deceased, prays judgment against MOUNTAIN CASCADE, and DOES 51-100, and 151-250, 16 inclusive,and each of them,as hereinafter set forth. 17 THIRD CAUSE OF ACTION 18 NEGLIGENCE 19 AS AGAINST KMEP,SFPP,KMGP,KMI AND DOES 101-150,INCLUSIVE 20 (By LAURA REYES,Successor in Interest to MIGUEL REYES) 21 61. Plaintiffs, and each of them, incorporate each and every allegation contained in 22 paragraphs 1 through 60 above,as though fully set forth herein. 23 62. At all times relevant herein,KMEP,as a limited partnership,SFPP,a limited partnership 24 and operating partnership of KMEP,KMGP as the general partner of KMEP,and KMI as the parent 25 corporation and owner of KMGP,and DOES 101-150,inclusive,and each of them,were the owners 26 and operators of the Kinder Pipeline. 27 63. Because of the dangerous and ultrahazardous nature of the Project and the Kinder 28 Pipeline,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline,KMEP, THIRD AMENDED COMPLAINT Page 19 I SFPP,KMGP and KMI,and DOES 101-150,inclusive,and each of them,had a nondelegable duty 2 under, among other things, OSHA regulations and California statutes and common law,.to own, 3 supervise,control,survey,and operate the Kinder Pipeline in a safe manner to ensure the safety of 4 the public and those working on the Project,including MIGUEL REYES,deceased. 5 64. At all relevant times herein, KMEP, SFPP, KMGP, and KMI, and DOES 101-150, 6 inclusive,and each of them,breached said nondelegable duty by,among other things: 7 ♦ improperly hiring, training, retaining, and supervising its employees, agents, 8 representatives, and independent contractors, including COMFORCE, in the 9 performance of the work on the Kinder Pipeline in relation to the Project,including 10 but not limited to the determination of the location of the Kinder Pipeline before I 1 allowing EBMUD,MOUNTAIN CASCADE,and DOES 1-100 and 201-250,and 12 each of them,to excavate and work in the area of the EBMUD Pipeline and Kinder 13 Pipeline; 14 ♦ improperly failing to create,obtain and/or analyze the proper utility maps,plans and 15 drawings showing the location of the Kinder Pipeline,prior to allowing EBMUD, 16 MOUNTAIN CASCADE, and DOES 1-100 and 201-250, and each of them, to 17 excavate and work in the area of the EBMUD Pipeline and Kinder Pipeline; 18 ♦ improperly failing to obtain the proper permits and other authority to allow for work 19 to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline; 20 ♦ improperly failing to locate and field mark the location of the Kinder Pipeline prior 21 to the excavation by EBMUD,MOUNTAIN CASCADE and DOES 1-100 and 201- 22 250,inclusive,and each of them,in violation of,among other things,Government 23 Code section 4216.3; 24 ♦ improperly failing to relocate the Kinder Pipeline to a location away from the 25 immediate vicinity of the Project and EBMUD Pipeline; 26 ♦ improperly failing to address the concerns of entities working on the Project or who 27 worked on the project(including among others Modern Continental Construction 28 Co., EBMUD, and DOES 1-50, and each of them) regarding the location of the THIRD AMENDED COMPLAINT Page 20 I Kinder Pipeline to the vicinity of the EBMUD Pipeline, and failing to inform 2 MOUNTAIN CASCADE and DOES 51-100 and 201-250, and each of them, of 3 these concerns; 4 ♦ improperly entering into a mutual agreement with MOUNTAIN CASCADE, 5 EBMUD and DOES 1-100 and 201-250, and each of them, allowing the use of 6 power-operated or power-driven excavating or boring equipment within the vicinity 7 of the Kinder Pipeline and Project;and 8 ♦ improperly failing to inspect,or failing to inspect as frequently as necessary, the 9 Kinder Pipeline during work on the Project where,through contact with EBMUD 10 and others(including Modem Continental Construction,EBMUD,and DOES 1-100, 11 and each of them,)KMEP,SFPP,KMGP and KMI,and DOES 101-150,and each 12 of them,knew or should have known,that the Kinder Pipeline could be damaged by 13 excavation work for the Project. 14 65. The tortious conduct alleged above by KMEP,SFPP,KMGP,KMI,and DOES 101-150, 15 inclusive and each of them, was, among other things, negligent, careless, reckless, and grossly 16 negligent. Among other things,KMEP,SFPP,KMGP,KMI,and DOES 101-150,inclusive,and 17 each of them,was aware of the probable dangerous consequences of its conduct and failed to avoid 18 those consequences,which resulted in the personal injuries and property damage,and subsequent 19 death of MIGUEL REYES,deceased. 20 66. KMEP,SFPP,KMGP,and KMI,and DOES 101-150,inclusive,and each of them,acted 21 so as to cause the personal injury and property damage,and ultimate death of MIGUEL REYES, 22 deceased,and to legally cause the injuries and damages described below. 23 67. KMEP, SFPP, KMGP, and KMI, and DOES 101-150, inclusive, and each of them, 24 knew,or in the exercise of reasonable care should have known,that the conditions constituted an 25 extremely dangerous condition and unreasonable risk of serious injury or death to those who would 26 foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline, . 27 and that the danger would not be apparent to those persons,.such as MIGUEL REYES,deceased. 28 KMEP,SFPP,KMGP,KMI,and DOES 101-150,inclusive,and each of them,failed to avoid these THIRD AMENDED COMPLAINT Page 21 i I consequences or protect others,including MIGUEL REYES,deceased,from these consequences. i 2 Underthe circumstances of this case involving excavation next to the high-pressure KinderPipeline, 3 the conduct of KMEP,SFPP,KMGP,and KMI,and DOES 101-150,inclusive,and each of them, 4 was an extreme departure from the ordinary standard of conduct. 5 68. As a direct and legal result of the alleged conduct of KMEP,SFPP,KMGP,and KMI, 6 and DOES 101-150,inclusive,and each of them,MIGUEL REYES,deceased,was hurt and injured 7 in his health,strength,and activity,and ultimately died.He suffered unjustifiable and substantial 8 physical pain and mental suffering before his death. 9 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES, 10 deceased,prays judgment against KMEP,SFPP,KMGP,and KMI,and DOES 101-150,inclusive, 11 and each of them,as hereinafter set forth. 12 FOURTH CAUSE OF ACTION 13 NEGLIGENCE 14 AS AGAINST COMFORCE AND DOES 101-150,INCLUSIVE 15 (By LAURA REYES,Successor in Interest to MIGUEL REYES) 16 69. Plaintiffs, and each of them, incorporate each and every allegation contained in 17 paragraphs 1 through 68 above,as though fully set forth herein. 18 70. Because of the dangerous and ultrahazardous nature of the Project and the Kinder 19 Pipeline, and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, 20 COMFORCE,and DOES 101-150,inclusive,and each of them,had a nondelegable duty under, 2.1 among other things,OSHA regulations and California statutes and common law,to own,supervise, 22 control,survey,and operate the Kinder Pipeline in a safe manner to ensure the safety of the public 23 and those working on the Project,including MIGUEL REYES,deceased. 24 71.At all relevant times herein,COMFORCE,and DOES 101-150,inclusive,and each of 25 them,breached said nondelegable duty by,among other things: 26 ♦ negligently and carelessly and recklessly hiring,training,retaining,and supervising 27 its employees, agents, representatives, and independent contractors in the 28 performance of the work on the Kinder Pipeline in relation to the Project,including THIRD AMENDED COMPLAINT Page 22 I but not limited to the determination of the location of the Kinder Pipeline before 2 allowing EBMUD,MOUNTAIN CASCADE,and DOES 1-100 and 201-250,and 3 each of them,to excavate and work in the area of the EBMUD Pipeline and Kinder 4 Pipeline; 5 ♦ negligently and carelessly and recklessly failing to create,obtain and/or analyze the 6 proper utility maps,plans and drawings showing the location of the Kinder Pipeline, 7 prior to allowing EBMUD,MOUNTAIN CASCADE,and DOES 1-100 and 201- 8 250,and each of them,to excavate and work in the area of the EBMUD Pipeline and 9 Kinder Pipeline; 10 ♦ negligently and carelessly and recklessly failing to obtain the proper permits and 11 other authority to allow for work to be completed in the vicinity of the Kinder 12 Pipeline and EBMUD Pipeline; 13 ♦ negligently and carelessly and recklessly failing to locate and field mark the location 14 of the Kinder Pipeline prior to the excavation by EBMUD,MOUNTAIN CASCADE 15 and DOES 1-100 and 201-250,inclusive,and each of them,in violation of,among 16 other things,Government Code section 4216.3;and 17 ♦ negligently and carelessly and recklessly failing to inspect,or failing to inspect as 18 frequently as necessary, the Kinder Pipeline during work on the Project where, 19 through contact with EBMUD and others (including Modem Continental 20 Construction, EBMUD, and DOES 1-100, and each of them,)COMFORCE and 21 DOES 101-150, and each of them, knew or should have known, that the Kinder 22 Pipeline could be damaged by excavation work for the Project. 23 72. The tortious conduct alleged above by COMFORCE,and DOES 101-150,inclusive and 24 each of them, was, among other things, negligent, careless, reckless, grossly negligent and/or 25 despicable,with the despicable conduct being carried on by COMFORCE, and DOES 101-150, 26 inclusive and each of them,with a willful and conscious disregard of the rights and/or safety of 27 others, including but not limited to MIGUEL REYES, deceased. Among other things, 28 COMFORCE, and DOES 101-150, inclusive, and each of them, was aware of the probable TMRD AMENDED COMPLAINT Page 23 I dangerous consequences of its conduct and willfully and deliberately failed to avoid those 2 consequences,which resulted in the personal injuries and property damage,and subsequent death 3 of MIGUEL REYES,deceased. 4 73. COMFORCE,and DOES 101-150,inclusive,and each of them,acted so as to cause the 5 personal injury and property damage, and ultimate death of MIGUEL REYES,deceased, and to 6 legally cause the injuries and damages described below. 7 74. COMFORCE,and DOES 101-150,inclusive,and each of them,knew,or in the exercise 8 of reasonable care should have known, that the conditions constituted an extremely dangerous 9 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the 10 vicinity of or working on the Project, Kinder Pipeline or EBMUD Pipeline, and that the danger 11 would not be apparent to those persons,such as MIGUEL REYES,deceased. COMFORCE,and 12 DOES 101-150, inclusive, and each of them, willfully and deliberately failed to avoid these 13 consequences or protect others,including MIGUEL REYES,deceased,from these consequences. 14 Under the circumstances of this case involving excavation next to the high-pressure Kinder Pipeline, 15 the conduct of COMFORCE, and DOES 101-150, inclusive, and each of them, was an extreme 16 departure from the ordinary standard of conduct, and constitutes gross negligence, malice, and 17 oppression. 18 75. As a direct and legal result of the alleged conduct of COMFORCE,and DOES 101-150, 19 inclusive, and each of them, MIGUEL REYES, deceased, was hurt and injured in his health, 20 strength,and activity,and ultimately died.He suffered unjustifiable and substantial physical pain 21 and mental suffering before his death. 22 76. As a further direct and legal result of the alleged conduct of COMFORCE,and DOES 23 101-150,inclusive,and each of them,MIGUEL REYES incurred damage to his personal property, 24 before his death,in an amount according to proof at trial. The above-alleged acts of COMFORCE, 25 and DOES 101-150, inclusive, and each of them, were willful, wanton, malicious, oppressive, 26 despicable,and/or fraudulent,and justify an award of punitive damages. At all times mentioned 27 herein,COMFORCE,its employees,agents,representatives,independent contractors, and DOES 28 101-150,inclusive,and each of them were guilty of malice,oppression,fraud,and/or a willful and THIRD AMENDED COMPLAINT Page 24 I conscious disregard for the rights of MIGUEL REYES, deceased. Given the dangerous and 2 ultrahazardous nature of the work performed on the Project, the Kinder Pipeline, and the close 3 proximity of the Kinder Pipeline to the EBMUD Pipeline,COMFORCE, its agents,employees, 4 independent contractors, representatives, and DOES 101-150, inclusive, and each of them, 5 performed work on the Project with a reckless indifference and willful and conscious disregard for 6 the rights of MIGUEL REYES,deceased. 7 77. Plaintiff is entitled to punitive damages against COMFORCE, and DOES 101-150, 8 inclusive,and each of them,as corporate defendants because an officer,director or managing agent 9 thereof had advance knowledge of the unfitness of its employees and employed or retained them 10 with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful 11 conduct of its agents,employees, representatives,independent contractors,who were acting as an 12 officer, director or managing agent of COMFORCE, and DOES 101-150,and each of them,and 13 which officer,director or managing agent was personally guilty of oppression,fraud and/or malice. 14 WHEREFORE,Plaintiff LAURA REYES,as successor in interest to MIGUEL REYES, 15 deceased,prays judgment against COMFORCE,and DOES 101-150,inclusive,and each of them, 16 as hereinafter set forth. 17 FIFTH CAUSE OF ACTION 18 NEGLIGENCE 19 AS AGAINST CAROLLO AND CDM AND DOES 1-50,INCLUSIVE . 20 (By LAURA REYES,successor in interest to MIGUEL REYES,deceased) 21 78. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through 77 22 above,as.though fully set forth herein. 23 79. At all times relevant herein,CAROLLO and CDM,and DOES 1-50,inclusive,and each 24 of them, were engaged in the business of providing consulting, design and related engineering 25 services for the Project. CAROLLO and CDM, and DOES 1-50, inclusive, and each of them, 26 provided their drawings and plans to,among others,EBMUD. 27 80. Because of the dangerous and ultrahazardous nature of the Project,the Kinder Pipeline 28 and contents thereof,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline THIRD AMENDED COMPLAINT Page 25 I and the Project, CAROLLO and CDM, and DOES 1-50, inclusive, and each of them, had a 2 nondelegable duty under, among other things, OSHA regulations and California statutes and 3 common law,to plan and design the Project in a safe manner to ensure the safety of the public and 4 those working on the Project,including MIGUEL REYES,deceased. 5 81.At all relevant times herein,CAROLLO and CDM,and DOES 1-50,inclusive,and each 6 of them,breached said nondelegable duty by,among other things: 7 ♦ improperly preparing and designing the plans and maps for the Project. CAROLLO 8 and CDM, and DOES 51-50, inclusive, and each of them, were aware of the 9 incursion of the Kinder Pipeline into the Project's path, as evidenced by their 10 drawings; 11 ♦ improperly failing to evaluate the need for re-design of the Project at the time they, 12 and each of them, became aware of and discovered the proximity of the Kinder 13 Pipeline to the proposed EBMUD pipeline,and the incursion of the Kinder Pipeline 14 into the Project; 15 ♦ improperly failing to address missing data or request additional data after reviewing 16 the pot-holing data derived from field data in the vicinity of station 100+15; 17 ♦ with respect to CDM,and DOES 1-50,and each of them,improperly entering into 18 a subcontract with CAROLLO regarding the portion of the Project at issue in this. 19 lawsuit;and 20 ♦ with respect to CDM and DOES 1-50, and each of them,improperly supervising 21 CAROLLO regarding its work on the portion.of the Project at issue in this lawsuit. 22 82. The tortious conduct alleged above by CAROLLO and CDM,and DOES 1-50,inclusive 23 and each of them, was, among other things, negligent, careless, reckless, and grossly negligent. 24 Among other things, CAROLLO and CDM, and DOES 1-50, inclusive, and each of them, was 25 aware of the probable dangerous consequences of its conduct and failed to avoid those 26 consequences,which resulted in the personal injuries and property damage,and subsequent death 27 of MIGUEL REYES,deceased. 28 /// THIRD AMENDED COMPLAINT Page 26 1 83.CAROLLO and CDM,and DOES 1-50,inclusive,and each of them,acted so as to cause 2 the personal injury and property damage,and ultimate death of MIGUEL REYES,deceased,and 3 to legally cause the injuries and damages described below. 4 84. CAROLLO and CDM,and DOES 1-50, inclusive,and each of them,knew, or in the 5 exercise of reasonable care should have known, that the conditions constituted an extremely 6 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably 7 be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,and that the 8 danger would not be apparent to those persons,such as MIGUEL REYES,deceased.CAROLLO 9 and CDM, and DOES 1-50, inclusive, and each of them, failed to avoid these consequences or 10 protect others, including MIGUEL REYES, deceased, from these consequences. Under the 11 circumstances of this case involving excavation next to the high-pressure Kinder Pipeline, the 12 conduct of CAROLLO and CDM,and DOES 1-50,inclusive, and each of them, was an extreme 13 departure from the ordinary standard of conduct. 14, 85. As a direct and legal result of the alleged conduct of CAROLLO and CDM,and DOES 15 17-50,inclusive,and each of them,MIGUEL REYES,deceased,was hurt and injured in his health, 16 strength,and activity,and ultimately died.He suffered unjustifiable and substantial physical pain 17 and mental suffering before his death. 18 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES, 19 deceased,prays judgment against CAROLLO and CDM, and DOES 1-50,inclusive,and each of 20 them,as hereinafter set forth. 21 SIXTH CAUSE OF ACTION 22 STRICT LIABILITY 23 AS AGAINST KMEP,SFPP,KMGP,KMI AND DOES 101-150,INCLUSIVE 24 (By LAURA REYES,Successor in Interest to MIGUEL REYES) 25 86. Plaintiffs, and each of them, incorporate each and every allegation contained in 26 paragraphs 1 through 85 above,as though fully set forth herein. 27 87. KMEP, SFPP, KMGP, and KMI, and DOES 101-150,inclusive, and each of them, 28 designed, manufactured, sold, owned, controlled, operated, maintained, inspected, distributed, THIRD AMENDED COMPLAINT Page 27 I transported,located,field marked,monitored,and managed the Kinder Pipeline and ultrahazardous 2 and flammable material contained therein. 3 88. Such activities create the existence of a high degree of risk of harm to persons,land and 4 personal property of others,create the likelihood that harm that results from it will be great,and are 5 inappropriate to the surrounding of residential neighborhoods, schools and highly-populated 6 communities where it was carried on,such that their value to such communities is outweighed by 7 their dangerous attributes. 8 89. Because of the dangerous and ultrahazardous nature and condition of the Kinder 9 Pipeline and contents contained therein,and the location of the Kinder Pipeline in the vicinity of 10 the EBMUD Pipeline and Project,KMEP,SFPP,KMGP and KMI,and DOES 101-150,inclusive, 11 and each of them,had a nondelegable duty to own,supervise,control,operate,manage,locate,field 12 mark,monitor,and inspect the Kinder Pipeline accurately and in a safe manner to ensure the safety 13 of the public and those working on the Project,including MIGUEL REYES,deceased. 14 90. As set forth above, MIGUEL REYES, deceased, was killed while working on the 15 Project and EBMUD Pipeline. The activities of KMEP,SFPP,KMGP and KMI,and DOES 101- 16 150, and each of them, were a substantial factor in causing injury and the subsequent death of 17 MIGUEL REYES,deceased. The harm to MIGUEL REYES,deceased, was of the kind that would 18 be anticipated as a result of the risk created by owning, supervising, controlling, operating, 19 managing, locating, field marking, monitoring, and inspecting the Kinder Pipeline through a 20 residential neighborhood,near a school and through a highly-populated community. 21 91. KMEP, SFPP, KMGP, and KMI, and DOES 101-150, inclusive, and each of them, 22 caused the personal injury and ultimate death of MIGUEL REYES,deceased,and legally caused 23 the injuries and damages described below. 24 92. As a direct and legal result of the dangerous and ultrahazardous conditions designed, 25 manufactured,sold,owned,controlled,operated,maintained,inspected,distributed,transported, 26- located,field marked,monitored,and managed by KMEP,SFPP,KMGP,and KMI,and DOES 101- 27 150,inclusive,and each of them,MIGUEL REYES,deceased,was hurt and injured in his health, 28 strength,and activity,and ultimately died.He suffered unjustifiable and substantial physical pain TH[RD AMENDED COMPLAINT Page 28 I and mental suffering before his death. 2 93. As a further direct and legal result of the dangerous and ultrahazardous conditions 3 designed, manufactured, sold, owned, controlled, operated, maintained, inspected, distributed, 4 transported,located,field marked,monitored,and managed by KMEP,SFPP,KMGP,and KMI, 5 and DOES 101-150,inclusive,and each of them,MIGUEL REYES incurred damage to his personal 6 property, before his death, in an amount according to proof at trial. The above-alleged acts of. 7 KMEP,SFPP, KMGP,and KMI,and DOES 101-150,inclusive,and each of them,were willful, 8 wanton, malicious, despicable, oppressive, and/or fraudulent, and justify an award of punitive 9 damages. At all times.mentioned herein,KMEP,SFPP,KMGP,and KMI,its employees,agents, 10 representatives,independent contractors, and DOES 101-150,inclusive,and each of them were 11 guilty of malice, oppression, fraud, and/or a willful and conscious disregard for the rights of 12 MIGUEL REYES,deceased. Given the dangerous and ultrahazardous nature of the work performed 13 on the Project,the Kinder Pipeline,and the close proximity of the Kinder Pipeline to the EBMUD 14 Pipeline, KMEP, SFPP, KMGP, and KMI, its agents, employees, independent contractors, 15 representatives,and DOES 101-150,inclusive,and each of them,performed work on the Project 16 with a reckless indifference and willful and conscious disregard for the rights of MIGUEL REYES, 17 deceased. 18 94. Plaintiff is entitled to punitive damages against KMEP,SFPP,KMGP,and KMI, and 19 DOES 101-150,inclusive,and each of them,as corporate defendants because an officer,director 20 or managing agent thereof had advance knowledge of the unfitness of its employees and employed 21 or retained them with a conscious disregard of the rights or safety of others,authorized or ratified 22 the wrongful conduct of its agents,employees, representatives,independent contractors who were 23 acting as an officer,director or managing agent of KMEP,SFPP,KMGP,and KMI,and DOES 101- 24 150, and each of them, and which officer, director or managing agent was personally guilty of 25 oppression,fraud and/or malice. 26 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES, 27 deceased,prays judgment against KMEP,SFPP,KMGP,and KMI,and DOES 101-15.0,inclusive, 28 and each of them,as hereinafter set forth. TfURD AMENDED COMPLAINT Page 29 I SEVENTH CAUSE OF ACTION 2 WILLFUL MISCONDUCT 3 AGAINST KMEP,SFPP,KMGP,KMI,AND DOES 51-150,INCLUSIVE 4 (By LAURA REYES,as successor in interest to MIGUEL REYES,deceased) 5 95. Plaintiffs, and each of them, incorporate each and every allegation contained in 6 paragraphs 1 through 94 above,as though fully set forth herein. 7 96. KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, knew that 8 construction workers were excavating a trench in connection with the Project,in accordance with 9 the written contract between EBMUD and MOUNTAIN CASCADE,and DOES 1-100,and each 10 of them. KMEP, SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that the route 11 of the EBMUD Pipeline was to be parallel to,east of and above the Kinder Pipeline, which was 12 owned and operated by KMEP,SFPP,KMGP,KMI and DOES 51-150,and each of them. 13 97. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,were the operators 14 or owners of a subsurface installation within the meaning of Government Code section 4216. 15 1 98. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that EBMUD's 16 contract with MOUNTAIN CASCADE,and DOES 51-100,and each of them,required compliance 17 with all applicable statutes,laws,regulations,orders and standards. 18 99. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that to guard 19 against extreme risk of injury to persons and property,including those working on the Project such 20 as MIGUEL REYES,deceased,the contract between EBMUD and MOUNTAIN CASCADE,and 21 DOES 51-100,specified,among other things,that work along South Broadway in Walnut Creek, 22 California was adjacent to the Kinder Pipeline,that construction activities should be coordinated 23 with,among others,Lary Hosler,manager pipeline maintenance and Roy Bridge,manager pipeline 24 safety,for KMEP,SFPP,KMGP,KMI,and DOES 51-150,and MOUNTAIN CASCADE. 25 100. KMEP,SFPP, KMGP, KMI,and DOES 51-150, and each of them,knew that the 26 Kinder Pipeline had to be properly located in advance of excavation to avoid any physical contact 27 with the Kinder Pipeline as a result of any construction activities. 28 111 THIRD AMENDED COMPLAINT Page 30 I 101. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,were aware of their 2 respective responsibilities under, among other things, the Government Code and Code of 3 Regulations to properly plan and design the Project and determine the location of and properly field 4 mark the Kinder Pipeline to allow for safe excavation in the vicinity thereof. 5 102.KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that operating, 6 locating,field marking,and excavating in the vicinity of the Kinder Pipeline created the existence 7 of a special,high degree of risk of harm to persons and property,including those working on the 8 Project with welding tools,such as MIGUEL REYES,deceased. KMEP,SFPP,KMGP,KMI,and 9 DOES 51-150,and each of them,knew that Matamoros Pipeline,Inc.,and its employees including 10 MIGUEL REYES,deceased,were using welding instruments to weld the EBMUD Pipeline,which 11 considerably increased the extreme risk of harm due to highly flammable nature of the contents of 12 the Kinder Pipeline. 13 103. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that those 14 working on the Project, including MIGUEL REYES, deceased, would rely on, among others, 15 KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, for their safety to properly 16 design,plan,locate,field mark,and excavate in the vicinity of the Kinder Pipeline in compliance 17 with state laws,statutes,orders,and regulations. 18 104. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,has experienced 19 several accidents relating to its pipelines,including but not limited to those incidents referenced in 20 the General Allegations set forth above. KMEP,SFPP,KMGP,KMI,and DOES 51-.150,and each 21 of them,have experienced at least 44 accidents relating to its pipelines since January 1,2003. Of 22 these 44 accidents,at least 14 resulted in releases of more than five barrels of refined petroleum 23 products into the surrounding environment. At least 8 known accidents resulting in releases into 24 the surrounding environment have occurred since April 27,2004. All 8 of these accidents occurred 25 in or near high consequence areas (as defined in 49 C.F.R. section 195.450) and/or major 26 transportation corridors. Of these 8 accidents,5 are attributed to outside force damage(e.g.third 27 party damage caused by an excavator or other source,damage caused during construction,etc.) At 28 least 3 of these 5 instances went unaddressed by KMEP,SFPP,KMGP,KMI,and DOES 51-150, THIRD AMENDED COMPLAINT Page 31 I and each of them,for an indeterminate period despite internal inspection tool runs conducted on the 2 pipelines prior to the accidents. Approximately 50%of reported hazardous liquid pipeline accidents 3 suffered by KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,between 1998 and 4 2003 were caused by outside forces. 5 105. According to the United States Department of Transportation's "Pipeline and 6 Hazardous Materials Safety Administration,"the recent accidents of KMEP,SFPP,KMGP,KMI, 7 and DOES 51-150, and each of them, indicate a "widespread failure to adequately detect and 8 address the effects of outside force damage and corrosion. This failure has systematically affected 9 the integrity of the Pacific Operations Unit." This pattern and practice of KMEP,SFPP,KMGP, 10 KMI,and DOES 51-150,and each of them,is one to put profits over people,in that KMEP,SFPP, 11 KMGP,KMI, and DOES 51-150, and each of them, believe that few adverse consequences will 12 result from its failures to avoid accidents involving the pipelines. This systematic failure flows from 13 the top on down through the corporate levels of KMEP,SFPP,KMGP,KMI,and DOES 51-150, 14 and each of them,and includes those decision making individuals including the officers,directors 15 and managing agents of KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them. 16 106. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,additionally knew 17 that in the six years prior to November 9,2004,MOUNTAIN CASCADE,and DOES 51-100,and 18 each of them,accumulated several safety violations,and was issued several citations from California 19 OSHA for workplace accidents,including but not limited to,the death a worker when a pipe fell on 20 him in March of 2004, the death of a worker when a crane he tried to operate without training 21 collapsed and smashed him against a pipe, severe lung damage suffered by three workers when 22 poisonous gases overcame them in a sewer in which they were working,and the personal injury of 23 a worker when his leg was crushed between two water trucks.KMEP,SFPP,KMGP,KMI,and 24 DOES 51-150,and each of them,additionally knew that MOUNTAIN CASCADE,and DOES 51- 25 100,were also the subject of several civil lawsuits involving wrongful death,as well as criminal 26 prosecutions. 27 107. KMEP,SFPP,KMGP,KMI,and DOES.51-150,and each of them,knew that the initial 28 contract with EBMUD was awarded to Modern Continental Co.,which contract was terminated by THIRD AMENDED COMPLAINT Page 32 I EBMUD. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that in or about 2 2003 or 2004,Modern Continental Co.was excavating for the EBMUD Pipeline and determined 3 that a segment of the Kinder Pipeline was approximately 13 feet from where it had been field 4 marked by KMEP, SFPP, KMGP, KMI, and DOES 101-150, and each of them. Modern 5 Continental Co.expressed this concern to,among others,EBMUD,KMEP,SFPP,KMGP,KMI, 6 COMFORCE,and DOES 1-50 and 101-150,and each of them. In addition,in or about August of 7 2003,EBMUD requested that KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each of them, 8 relocate a section of the Kinder Pipeline because it was,among other things,hard to locate and a 9 hindrance to completion of the Project. In or about early 2004,Modem Continental,EBMUD,and 10 DOES 1-50,and each of them,were extremely concerned about the location of the Kinder Pipeline 11 because it was still in the way of the excavation for the EBMUD Pipeline and Project. Among 12 others,Modern Continental,EBMUD,KMEP,SFPP,KMGP,KMI,and DOES 1-150,and each of 13 them,discussed in early 2003 the location of the Kinder Pipeline and how to continue working on 14 the Project despite the location of the Kinder Pipeline. 15 108. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that prior to 16 November 9,2004,EBMUD awarded its contract to MOUNTAIN CASCADE,who advertises that 17 it"routinely take[s]on tough projects that our competitors shy away from and turn them into profit," 18 and that the foundation of its success is built on its dedication to"knowledge,integrity,quality and 19 superior service." KMEP,SFPP,KMGP,KMI,and DOES 51-150, and each of them,knew that 20 KMEP,SFPP,KMGP,KMI and DOES 101-150,and each of them,had numerous recent accidents 21 involving its pipelines,and that MOUNTAIN CASCADE and DOES 51-100,and each of them,had 22 numerous recent workplace injuries. 23 109. Because of the construction work in the direct vicinity of the high pressure Kinder 24 Pipeline,KMEP, SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew that it had to 25 guard against the extreme risk of injury to persons and/or property in the area, including those 26 persons working on the Project along with the general public. KMEP,SFPP,KMGP,KMI, and 27 DOES 51-150,and each of them,knew that construction activities were to be coordinated with all 28 parties participating in the Project. TMRD AMENDED COMPLAINT Page 33 1 110. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,knew of the peril 2 of an explosion if the flammable liquids or gasses inside the Kinder Pipeline escaped in the vicinity 3 of the construction of the EBMUD Pipeline where workers,including MIGUEL REYES,deceased, 4 worked with welding tools. KMEP,SFPP,KMGP,KMI,COMFORCE,and DOES 51-150,and 5 each of them, knew that the injury and subsequent death of MIGUEL REYES, deceased, was a 6 probable,as opposed to possible,result of that danger,as MIGUEL REYES,deceased,was working 7 inside the EBMUD Pipeline using welding tools,and had no means of making an easy or fast escape 8 in the event of an explosion and thus would be trapped inside the EBMUD Pipeline. 9 111. At all relevant times herein,KMEP,SFPP,KMGP,KMI, and DOES 51-150,and each 10 of them, intentionally, knowingly, deliberately, and/or consciously failed to avoid the above- 11 referenced peril by,among other things: 12 1 failing to hire,train,retain and supervise its employees,representatives,agents and 13 independent contractors with respect to the performance of the work on the Project. 14 For example,employees lacked the experience and knowledge to read the maps and 15 drawings showing the location of the Kinder Pipeline, and in fact, failed to even 16 review such maps and drawings. KMEP,SFPP,KMGP,KMI,and DOES 51-150, 17 and each of them, failed to train its employees with respect to the importance of 18 reviewing and analyzing the necessary maps and drawings to determine the accurate 19 location of the Kinder Pipeline,and how to review and analyze such drawings and 20 maps; 21 ♦ failing to correctly determine the location of the Kinder Pipeline before allowing 22 excavation in the area of the EBMUD Pipeline and Kinder Pipeline,pursuant to, 23 among other things,Government.Code section 4216.4. Among others,Mike Biggs, 24 Peter Brooks,and Mark Presley failed to review and analyze the maps and drawings, 25 and instead relied on their visual observation that there was no tree in the area of the 26 Kinder.Pipeline. In fact,the tree had been removed years prior but the roots still 27 existed and the offset of the Kinder Pipeline was present; 28 THIRD AMENDED COMPLAINT Page 34 I ♦ failing to create,obtain and/or analyze the proper utility maps,plans and drawings 2 showing the location of the Kinder Pipeline, prior to allowing EBMUD, 3 MOUNTAIN CASCADE, and DOES 1-100 and 201-250, and each of them, to 4 excavate and work in the area of the EBMUD Pipeline and Kinder Pipeline; 5 ♦ failing to relocate the KinderPipeline to a location away from the immediate vicinity 6 of the Project and EBMUD Pipeline after concerns were previously brought forth by, 7 among others, EBMUD and Modern Continental regarding the location of the 8 Kinder Pipeline to the EBMUD Pipeline and Project. 9 ♦ failing to address the concerns of entities working on the Project or who worked on 10 the project(including among others Modern Continental Construction Co.,EBMUD, 11 and DOES 1-50,and each of them)regarding the location of the Kinder Pipeline to 12 the vicinity ofthe EBMUD Pipeline,and failing to inform MOUNTAIN CASCADE 13 and DOES 51-100 and 201-250,and each of them,of these concerns; 14 ♦ falsely representing to MOUNTAIN CASCADE,EBMUD and others the location 15 of the Kinder Pipeline,such that Mike Biggs,Mark Presley and Peter Brooks stated 16 to EBMUD, MOUNTAIN CASCADE, and others that the field marking was 17 accurate,that excavators need only follow the field marking devices to avoid conflict 18 with the Kinder Pipeline and that additional locating and monitoring was 19 unnecessary. The Kinder Pipeline was not located where KMEP, SFPP, KMGP, 20 KMI,and DOES 51-150,and each of them,represented it to be.Further, KMEP, 21 SFPP,KMGP,KMI,and DOES 51-150,and each of them,failed to locate and field 22 mark the location which may be affected by the excavation to the extent and degree 23 of accuracy that the information was available either in their own records or through 24 standard locating techniques other than excavation. In fact,Mark Presley admitted 25 that he often did not even use drawings or maps,as he found them to be inaccurate. 26 Mr.Presley stated that the Kinder Pipeline only bent around tree roots,and since he 27 saw no tree,the Kinder Pipeline did not deviate from a straight path;and 28 THIRD AMENDED COMPLAINT Page 35 I ♦ falsely representing to MOUNTAIN CASCADE, EBMUD and others that they 2 employed properly trained and supervised personnel to locate and field mark the 3 Kinder Pipeline. Among others,both Mike Biggs,Mark Presley and Peter Brooks 4 lacked the skills and experience necessary to accurately read and interpret drawings 5 and maps,and to actually know that the reading of drawings and maps was crucial 6 to locating the Kinder Pipeline. 7 112. The conduct alleged above by KMEP, SFPP, KMGP, KMI, and DOES 51-150, 8 inclusive and each of them,was,among other things,despicable conduct being carried on with a 9 willful and conscious disregard of the rights and/or safety of others,including but not limited to 10 MIGUEL REYES,deceased. Among other things,KMEP,SFPP,KMGP,KMI,and DOES 101- 11 150,inclusive,and each of them,was aware of the probable dangerous consequences of its conduct 12 and willfully and deliberately failed to avoid those consequences, which resulted in the personal 13 injuries and property damage,and subsequent death of MIGUEL REYES,deceased. 14 113. When KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,made the 15 representations as set forth above, they knew them to be false, had no reasonable ground for 16 believing them to be true,and knew that they did not have the knowledge which they professed. 17 114. Although the representations were not made directly to MIGUEL REYES,deceased, 18 KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, made the representations to 19 MOUNTAIN CASCADE and others with the intent that such representations be relied upon in 20 excavating the EBMUD Pipeline. MIGUEL REYES, deceased, is entitled to protection as he 21 suffered property damage and physical injury and subsequent death resulting from MOUNTAIN 22 CASCADE's and others justifiable reliance on the representations that the Kinder Pipeline was 23 properly marked. 24 115. Matamoros Pipeline,Inc.,and its employees,including MIGUEL REYES,deceased, 25 justifiably relied on said representations that the workplace was safe from extreme risk of harm. As 26 a result,MIGUEL REM,deceased,was injured in his person and also sustained personal property - . 27 damage,and subsequently died. 28 THIRD AMENDED COMPLAINT Page 36 1 116. KMEP, SFPP, KMGP, and KMI, and DOES 51-150, inclusive, and each of them, 2 knew,or in the exercise of reasonable care should have known,that the conditions constituted an 3 extremely dangerous condition and unreasonable risk of serious injury or death to those who would 4 foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline, 5 and that the danger would not be apparent to those persons,such as MIGUEL REYES,deceased. 6 KMEP, SFPP, KMGP, KMI, and DOES 51-150, inclusive, and each of them, willfully and 7 deliberately failed to avoid these consequences or protect others, including MIGUEL REYES, 8 deceased,from these consequences.Under the circumstances of this case involving excavation next 9 to the high-pressure Kinder Pipeline,the conduct of KMEP,SFPP,KMGP,KMI,and DOES 51- 10 150,inclusive,and each of them,constitutes malice,oppression and/or fraud. 11 117. As a direct and legal result of the alleged conduct of KMEP,SFPP,KMGP,and KMI, 12 and DOES 51-150,inclusive,and each of them,MIGUEL REYES,deceased,was hurt and injured 13 in his health,strength,and activity,and ultimately died. He suffered unjustifiable and substantial 14 physical pain and mental suffering before his death. 15 118. The above-alleged acts of KMEP,SFPP,KMGP,KMI,and DOES 51-150,inclusive, 16 and each of them,were willful,wanton,malicious,oppressive,despicable,and/or fraudulent,and 17 justify an award of punitive damages. At all times mentioned herein,KMEP,SFPP,KMGP,KMI, 18 its employees,agents,representatives,independent contractors, and DOES 51-150,inclusive,and 19 each of them were guilty of malice,oppression,fraud,and/or a willful and conscious disregard for 20 the rights of those working on the EBMUD Pipeline,including MIGUEL REYES,deceased. Given 21 the dangerous and ultrahazardous nature of the work performed on the Project,the Kinder Pipeline, 22 and the close proximity of the Kinder Pipeline to the EBMUD Pipeline,the false representations and 23 conduct of KMEP, SFPP, KMGP, KMI, and DOES 51-150, and each of them, was despicable, 24 malicious,fraudulent,oppressive, and made with a conscious disregard for the safety of, among 25 others,MIGUEL REYES,deceased. 26 119. Plaintiff is entitled to punitive damages against KMEP, SFPP, KMGP, KMI, and 27 DOES 51-150,inclusive,and each of them,as corporate defendants because an officer,director or 28 managing agent thereof had advance knowledge of the unfitness of its employees, agents, THIRD AMENDED COMPLAINT Page 37 I representatives,or independent contractors(including but not limited to Mike Biggs,Mark Presley 2 and Peter Brooks)and employed or retained them with a conscious disregard of the rights or safety 3 of others, authorized or ratified the wrongful conduct of its agents, employees, representatives, 4 independent contractors and DOES 51-150, and each of them, who were acting as an officer, 5 director or managing agent of KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them, 6 and which officer, director or managing agent was personally guilty of oppression,fraud and/or 7 malice. Among other things,an officer,director or managing agent of KMEP,SFPP,KMGP,KMI, 8 and DOES 51-150,and each of them,ratified the conduct of its employees,agents,representatives 9 or independent contractors by continuing to employ them,failing to criticize,censure,reprimand, 10 terminate, suspend or take other remedial action against them,issuing press releases,interfering 11 with attempts of the regulatory agencies including Cal-OSHA to interview them, and providing 12 them with legal counsel so as to defend their conduct. Furthermore,a vice-president of operations 13 and engineering of KMEP, SFPP, KMGP, KMI, and DOES 51-150, inclusive, falsely stated in 14 questions following the incident that"the workers had been provided maps and should have been 15 aware of the fuel pipeline's location." The press release issues by KMEP,SFPP,KMGP,KMI,and 16 DOES 51-150, inclusive, dated November 10, 2004 stated that defendants "do not expect this 17 incident will have significant adverse financial impact,"nor did it appear the incident"will require 18 major environmental clean-up." 19 120. Despite full knowledge of the consistent pattern and practice of conduct by its 20 employees, agents, representatives or independent contractors which led to regularly occurring 21 pipeline accidents,and despite full awareness of all dangers to human life and property associated 22 with pipeline incidents,KMEP,SFPP,KMGP,KMI,and DOES 51-150,inclusive,intentionally, 23 deliberately and/or consciously failed to improve,update,revise, or change its ineffective safety 24 policies and practices, training of employees, and communication within the ranks of the 25 corporation,which led directly to its prior incidents and the incident involving MIGUEL REYES, 26 deceased. 27 121. The above-described conduct of KMEP, SFPP, KMGP, KMI, and DOES 51-150, 28 inclusive,which includes intentional and conscious disregard of safety standards and acting in a THIRD AMENDED COMPLAINT Page 38 I manner calculated to stonewall and/or deceive regulatory authorities for their own financial benefit 2 was despicable and carried on with a willful and conscious disregard for the rights and safety of 3 others,including MIGUEL REYES,deceased. 4 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES, 5 deceased,prays judgment against KMEP,SFPP,KMGP,KMI,and DOES 51-150,inclusive,and 6 each of them,as hereinafter set forth. 7 EIGHTH CAUSE OF ACTION 8 WILLFUL MISCONDUCT 9 AGAINST MOUNTAIN CASCADE,AND DOES 51-100,and 151-250,INCLUSIVE 10 (By LAURA REYES,as successor in interest to MIGUEL REYES,deceased) 11 122. Plaintiffs, and each of them, incorporate each and every allegation contained in 12 paragraphs 1 through 121 above,as though fully set forth herein. 13 123. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that its 14 workers were excavating a trench for the EBMUD Pipeline,with the route of the EBMUD Pipeline 15 being generally parallel to the high-pressure Kinder Pipeline. MOUNTAIN CASCADE,and DOES 16 51-100, and 151-250, inclusive, further knew that workers were working inside the EBMUD 17 Pipeline while using welding tools,which work was in close proximity to the excavation work. 18 124. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that it had 19 to guard against extreme risk of injury to persons and property,while digging near or in the vicinity 20 of the Kinder Pipeline. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew 21 that its construction activities were to be coordinated with others working on the Project to ensure 22 the safety of all of those working on the Project. MOUNTAIN CASCADE,and DOES 51-100,and 23 151-250, inclusive, knew of the requirements for notification of excavation, locating of, and 24 excavation when working near or in the vicinity of existing utilities,including but not limited to 25 those requirements under Government Code sections 4216.2 and 4216.4, and knew of the 26 importance of reviewing and analyzing drawings and maps to determine the location of the Kinder . 27 Pipeline. 28 /// THIRD AMENDED COMPLAINT Page 39 S 1 125. MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, knew that 2 EBMUD terminated its prior contract with the initial general contractor (Modern Continental 3 Construction Co.) on the Project and that Modern Continental Construction Co. had previous 4 expressed concerns to EBMUD,KMEP,SFPP,KMGP,KMI,COMFORCE,and DOES 51-150, 5 regarding the location of the Kinder Pipeline with respect to the EBMUD Pipeline. 6 126. At all times relevant hereto,MOUNTAIN CASCADE,and DOES 51-100,and 151- 7 250, inclusive,represented and advertised that the foundation of its success is its "dedication to 8 knowledge,integrity,quality and superior service"and that it"routinely take(s)on tough projects 9 that our competitors shy away from and tum them into profit." 10 127. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew that it had 11 experienced several work related incidents in the past relating to a failure to abide by safety 12 standards, including at least two deaths in the last five years, with the most recent occurring in 13 March of 2004 when a worker was crushed while unloading a pipe. Despite this knowledge, 14 MOUNTAIN CASCADE, and DOES 51-100, and 151-250,inclusive, knowingly employed the 15 same supervisory employee whose crew was responsible for that incident for the EBMUD Project. 16 MOUNTAIN CASCADE,and DOES 51-100,and 151-250,were also the subject of several civil 17 lawsuits involving wrongful death,as well as criminal prosecutions. 18 128.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew of the peril 19 of an explosion if the flammable liquids or gasses inside the Kinder Pipeline escaped in the vicinity 20 of the construction of the EBMUD Pipeline where workers,including MIGUEL REYES,deceased, 21 worked with welding tools.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive, 22 knew that the injury and subsequent death of MIGUEL REM, deceased, was a probable, as 23 opposed to possible,result of that danger,as MIGUEL REYES,deceased,was working inside the 24 EBMUD Pipeline using welding tools,and had no means of making an easy or fast escape in the 25 event of an explosion and thus would be trapped inside the EBMUD Pipeline. 26 129. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,intentionally, 27 knowingly,deliberately,and/or consciously failed to avoid the above-referenced peril by,among 28 other things: - THIRD AMENDED COMPLAINT Page 40 1 ♦ failing to hire,train,retain and supervise its employees,representatives,agents and 2 independent contractors with respect to the performance of the work on the Project. 3 MOUNTAIN CASCADE, and DOES 51-100, and 151-250, inclusive, failed to 4 advise or train its employees who operated power operated or power driven 5 backhoes and other equipment on the Project that the Kinder Pipeline was a high- 6 pressure pipeline carrying flammable liquids. For instance, a backhoe operator 7 (David Bauer) who had dug across or within three feet of the Kinder Pipeline 8 approximately 10 days before the incident represented that he thought the placards 9. warning of a Kinder Pipeline in the right of way marked an abandoned petroleum 10 line that was being removed. MOUNTAIN CASCADE, and DOES 51-100, and 11 151-250,inclusive,failed to train,instruct and communicate with its employees of 12 the meaning of the placards or field markings; 13 ♦ failing.to determine the location of the Kinder Pipeline through a review of maps 14 and drawings. For instance, superintendent Sean Ross considered plans to be 15 "guidelines"and"95%of the time not accurate." Additionally,neither Sean Ross 16 and Gene Im,foreman,reviewed any plans or drawings prior to allowing excavation, 17 rather they told the operators to dig in a straight line,even though they knew that 18 there was a bend in the Kinder Pipeline. Furthermore,the backhoe operator(Greg 19 Berry) who struck the Kinder Pipeline was never shown and never reviewed any 20 maps or drawings prior to the incident with respect to the location of the Kinder 21 Pipeline; 22 ♦ failing to determine the location of the Kinder Pipeline by excavating with hand 23 tools. For instance,a backhoe operator(David Bauer)had dug across or within three 24 feet of the Kinder Pipeline approximately 10 days before the incident. Furthermore, 25 the backhoe operator(Greg Berry)who struck the Kinder Pipeline never used any 26 hand tools to determine the location of the Kinder Pipeline prior to using his 27 backhoe and striking the Kinder Pipeline; 28 /// THIRD AMENDED COMPLAINT Page 41 ] ♦ representing to,among others,EBMUD and KMEP,SFPP,KMGP,KMI,and DOES 2 51-150,inclusive,on or about September 28,2004 and November 2,2004 that it was 3 aware of the exact location of the Kinder Pipeline. The representations were made 4 by, among others, Sean Ross, which representations were in fact false as 5 MOUNTAIN CASCADE,and DOES 51-100,and 151-250,had not determined the 6 exact location of the Kinder Pipeline through either the review and analysis of 7 drawings and maps,or by excavating with hand tools; 8 ♦ attempting,through pressure by and requirements of EBMUD and DOES 1-50,and 9 each of them, to complete the work on the Project in a time frame that was not 10 feasible without endangering the safety of the public and those working on the ]l Project,including MIGUEL REYES,deceased. For instance,superintendent Sean 12 Ross considered it"not a good idea to ask for a re-mark" of the Kinder Pipeline 13 because it would have to stop work for 48 hours at the expense of profit; 14 ♦ failing to require KMEP,SFPP,KMGP and KMI,and DOES 101-150,and each of 15 them,to relocate the Kinder Pipeline to a location away from the immediate vicinity 16 of the Project. Although MOUNTAIN CASCADE, and DOES 51-100,and 151- 17 250,inclusive,knew that Modern Continental Construction Co.had concerns about 18 the location of the Kinder Pipeline to the EBMUD Pipeline,and knew that there was 19 a bend in the Kinder Pipeline,MOUNTAIN CASCADE, and DOES 51-100, and 20 151-250,inclusive,did not stop work on the Project and require the relocation of the 21 Kinder Pipeline or relocation of the Project away from the Kinder Pipeline; 22 ♦ failing to inquire as to concerns of other entities working on the Project or who 23 worked on the project(including among others Modem Continental Construction 24 Co.,EBMUD;KMEP,SFPP,KMGP,KMI and DOES 1-50 and 101-150,and each 25 of them)regarding the location of the Kinder Pipeline to the vicinity of the Project 26 and EBMUD Pipeline, MOUNTAIN CASCADE,and DOES 51-100,and 151-250, t� 27 inclusive, took the contract with EBMUD for financial profit, consistent with its ` 28 motto that it"routinely take(s)on tough projects that our competitors shy away from --y THIRD AMENDED COMPLAINT Page 42 `LG 7 1`l 9`3 I and turn them into.profit;" 2 ♦ failing to conduct daily inspections,or requiring others to conduct,by a competent 3 individual prior to the start of work and as needed throughout the shift for evidence 4 of a situation that could result in a dangerous and ultrahazardous condition,such as 5 the condition resulting in the death.of MIGUEL REYES,deceased; 6 ♦ failing to remove,or requiring others to remove, individuals working on the Project, 7 including MIGUEL REYES,deceased,from the dangerous and ultrahazardous area 8 until necessary precautions had been taken to ensure the safety of those individuals, 9 including MIGUEL REYES;and 10 ♦ failing to timely contact or notify Underground Service Alert prior to excavating,or 1.1 allowing excavation,near the Kinder Pipeline and EBMUD Pipeline. For instance, 12 the operator of the backhoe(Greg Berry)did not observe any field markings on the 13 ground near or in the vicinity of the Kinder Pipeline,yet MOUNTAIN CASCADE, . 14 and DOES 51-100,and 151-250,inclusive,failed to contact Underground Service 15 Alert or any other entity, about the lack of field markings, because such contact 16 would have resulted in delay of the project and loss of profits. 17 130. The conduct alleged above by MOUNTAIN CASCADE,and DOES 51-100,and 151- 1.8 250, inclusive,was,among other things,despicable conduct being carried on with a willful and 19 conscious disregard of the rights and/or safety of others, including but not limited to MIGUEL 20 REYES,deceased. Among other things,MOUNTAIN CASCADE,and DOES 51-100,and 151- 21 250,inclusive,was aware of the probable dangerous consequences of its conduct and willfully and 22 deliberately failed to avoid those consequences,which resulted in the personal injuries and propert 23 damage,and subsequent death of MIGUEL REYES,deceased. 24 131. When MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,made the 25 representations as set forth above, they knew them to be false, had no reasonable ground for 26 believing them to be true,and knew that they did not have the knowledge which they professed. 27 132. Although the representations were not made directly to MIGUEL REYES,deceased, 28 MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,made the representations to, THIRD AMENDED COMPLAINT Page 43 I among others,EBMUD with the intent that such representations be relied upon in excavating the 2 EBMUD Pipeline. MIGUEL REYES,deceased,is entitled to protection as he suffered property . 3 damage and physical injury and subsequent death resulting from justifiable reliance on the 4 representations that the Kinder Pipeline was properly marked. 5 133. Matamoros Pipeline,Inc.,and its employees,including MIGUEL REYES,deceased, 6 justifiably relied on said representations that the workplace was safe from extreme risk of harm. As 7 a result,MIGUEL REYES,deceased,was injured in his person and also sustained personal property 8 damage,and subsequently died. 9 134. MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,acted so as to 10 cause the personal.injury and property damage,and ultimate death of MIGUEL REYES,deceased, 11 and to legally cause the injuries and damages described below. 12 135.MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive,knew,or in the 13 exercise of reasonable care should have known, that the conditions constituted an extremely 14 dangerous condition and unreasonable risk of serious injury or death to those who would foreseeably 15 be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline,and that the 16 danger would not be apparent to those persons,such as MIGUEL REYES,deceased.MOUNTAIN 17 CASCADE,and DOES 51-100,and 151-250,inclusive,willfully and deliberately failed to avoid 18 these consequences or protect others, including MIGUEL REYES, deceased, from these 19 consequences. Under the circumstances of this case involving excavation next to the high-pressure 20 Kinder Pipeline, the conduct of MOUNTAIN CASCADE, and DOES 51-100, and 151-250 21 inclusive,constitutes malice,oppression and/or fraud. 22 136. As a direct and legal result of the alleged conduct of MOUNTAIN CASCADE,and 23 DOES 51-100, and 151-250,inclusive,MIGUEL REYES,deceased,was hurt and injured in his 24 health,strength,and activity,and ultimately died.He suffered unjustifiable and substantial physical 25 pain and mental suffering before his death. 26 137. The above-alleged acts of MOUNTAIN CASCADE,and DOES 51-100,and 151-250, 27 inclusive,were willful,wanton,malicious,oppressive,despicable,and/or fraudulent,and justify an 28 award of punitive damages.. At all times mentioned herein,MOUNTAIN CASCADE,and DOES TH RD AMENDED COMPLAINT Page 44 1 51-100, and 151-250, inclusive, were guilty of malice, oppression, fraud, and/or a willful and 2 conscious disregard for the rights of those working on the EBMUD Pipeline,including MIGUEL 3 REYES,deceased. Given the dangerous and ultrahazardous nature of the work performed on the 4 Project,the Kinder Pipeline,and the close proximity of the KinderPipeline to theEBMUD Pipeline, 5 the false representations and conduct of MOUNTAIN CASCADE,and DOES 51-100,and 151-250, 6 inclusive,was despicable,malicious,fraudulent,oppressive,and made with a conscious disregard 7 for the safety of,among others,MIGUEL REYES,deceased. 8 138. Plaintiffs are entitled to punitive damages against MOUNTAIN CASCADE, and 9 DOES 51-100, and 151-250, inclusive, as corporate defendants because an officer, director or 10 managing agent thereof had advance knowledge of the unfitness of its employees(including but not 11 limited to Sean Ross,Gene Im,Greg Berry,David Bauer)and employed or retained them with a 12 conscious disregard of the rights or safety of others,authorized or ratified the wrongful conduct of 13 its agents,employees, representatives,independent contractors and DOES 51-100,and 151-250, 14 and each of them, who were acting as an officer, director or managing agent of MOUNTAIN 15 CASCADE,and DOES 51-100, and 151-250,inclusive,and which officer,director or managing 16 agent was personally guilty of oppression, fraud and/or malice. Among other things, an officer, 17 director or managing agent of MOUNTAIN CASCADE,and DOES 51-100,and 151-250,inclusive, 18 ratified the conduct of its employees by continuing to employ them,failing to criticize,censure, 19 reprimand,terminate, suspend or take other remedial action against them,issuing press releases, 20 interfering with attempts of the regulatory agencies including Cal-OSHA to interview them, and 21 providing them with legal counsel so as to defend their conduct. 22 139. Despite full knowledge of the consistent pattern and practice of conduct by its 23 employees which led to numerous incidents involving workers safety and despite full awareness of 24 all dangers to human life and property associated with pipeline incidents,MOUNTAIN CASCADE, 25 and DOES 51-100,and 151-250,inclusive,intentionally,deliberately and/or consciously failed to 26 improve, update, revise, or change its ineffective safety policies and practices, training of u'� 27 employees,or employment of effective communication procedures,which led directly to its prior 28 incidents and the incident involving MIGUEL REYES,deceased. THIRD AMENDED COMPLAINT Page 45 l 140. The above-described conduct of MOUNTAIN CASCADE,and DOES 51-100,and 2 151-250, inclusive, which includes intentional and conscious disregard of safety standards and 3 acting in a manner calculated to stonewall and/or deceive regulatory authorities, for their own 4 financial benefit,was despicable and carried on with a willful and conscious disregard for the rights 5 and safety of others,including MIGUEL REYES,deceased. 6 WHEREFORE,Plaintiff LAURA REYES, as successor in interest to MIGUEL REYES, 7 deceased, prays judgment against MOUNTAIN CASCADE, and DOES 51-100, and 151-250, 8 inclusive;as hereinafter set forth. 9 NINTH CAUSE OF ACTION 10 WRONGFUL DEATH 11 AS AGAINST EBMUD,MOUNTAIN CASCADE,KMEP,SFPP,KMGP,KMI, 12 COMFORCE,CAROLLO,CDM,AND DOES 1-300 INCLUSIVE 13 (By Plaintiffs LAURA REYES,individually,MIGUEL REYES,JR.,ADRIAN REYES 14 and JAZMIN REYES,by and through their Guardian Ad Litem) 15 141. Plaintiffs, and each of them, incorporate each and every allegation contained in 16 paragraphs 1 through 140,above,as though fully set forth herein. 17 142. Plaintiff LAURA REYES, individually, is the sole surviving spouse of MIGUEL 18 REYES, deceased. Plaintiffs MIGUEL REYES, JR., individually, and ADRIAN REYES and 19 JAZMIN REYES, by and through their guardian ad litem, were the sole surviving children of 20 MIGUEL REYES,deceased. 21 143. As a direct and legal result of the carelessness,recklessness,negligence and gross 22 negligence of EBMUD, MOUNTAIN CASCADE, KMEP, SFPP, KMGP, KMI, COMFORCE, 23 CAROLLO, CDM, and DOES 1-300 inclusive, and each of them, MIGUEL REM died on 24 November 9,2004. 25 144. Prior to the death of MIGUEL REYES,deceased,EBMUD,MOUNTAIN CASCADE, 26 KMEP,SFPP,KMGP,KMI,COMFORCE,CAROLLO,CDM,and DOES 1-300 inclusive,and 27 each of them,engaged in the conduct as alleged herein above. 28 THIRD AMENDED COMPLAINT Page 46 1 145. Prior to the death of MIGUEL REYES,deceased,Plaintiffs,and each of them,lived 2 with MIGUEL REYES,deceased,and were dependent on him for their support and maintenance. 3 At all times prior to his death,MIGUEL REYES,deceased,was a faithful and dutiful husband to 4 LAURA REYES,and a dutiful father to MIGUEL REYES,JR.,ADRIAN REYES,and JAZMIN 5 REYES. Plaintiffs,and each of them,enjoyed the love,society,comfort,and attention of MIGUEL 6 REYES,deceased. 7 146. As a direct and proximate result of the conduct as alleged above by EBMUD, 8 MOUNTAIN CASCADE, KMEP, SFPP,KMGP, KMI, COMFORCE, CAROLLO, CDM, and 9 DOES 1-300 inclusive, and each of them, which proximately and directly caused the death of 10 MIGUEL REYES,deceased,Plaintiffs,and each of them,have sustained pecuniary loss and loss 11 of society, comfort, attention, services, love and support of MIGUEL REYES, deceased, in an 12 amount according to proof at trial. 13 147. As a further direct and proximate result of the conduct as alleged above by EBMUD, 14 MOUNTAIN CASCADE, KMEP, SFPP,KMGP, KMI, COMFORCE, CAROLLO,CDM, and 15 DOES 1-300 inclusive, and each of them, which proximately and directly caused the death of 16 MIGUEL REYES,deceased,Plaintiffs,and each of them,have incurred funeral and burial expenses, 17 in an amount according to proof at trial. 18 WHEREFORE, Plaintiffs LAURA REYES, individually, MIGUEL REYES, JR., 19 individually,and ADRIAN REYES and JAZMIN REYES,by and through their guardian ad litem, 20 individually, and each of them, pray for judgment against EBMUD, MOUNTAIN CASCADE, 21 KMEP, SFPP,KMGP,KMI,COMFORCE,CAROLLO,CDM,and DOES 1-300 inclusive, and 22 each of them,as hereinafter set forth. 23 PRAYER FOR RELIEF 24 WHEREFORE, Plaintiffs LAURA REYES, individually and as successor in interest to 25 MIGUEL REYES, deceased, MIGUEL REYES JR., individually, and ADRIAN REYES and 26 JAZMIN REYES,by and through their guardian ad]item,pray for judgment against all Defendants, _ 271 and each of them,as follows: 28 THIRD AMENDED COMPLAINT Page 47 1 l. For general damages in an amount to be proven at trial; 2 2. For special damages in an amount to be proven at trial; 3 3. For punitive and exemplary damages in an amount to be proven at trial and as requested 4 in this Third Amended Complaint; 5 4. For wrongful death damages in an amount to be proven at trial; 6 5. For costs of suit;and 7 6. For such other and further relief as the Court deems proper. 8 Dated: October 31,2005 LAW OFFICES OF DAVID F.BEACH,P.C. 9 10 11 By DAVID F.BEACH 12 Attorneys for Plaintiffs LAURA REYES, individually and as successor in interest to 13 MIGUEL REYES;ADRIAN REYES and JAZMIN REYES,by and through their guardian ad litem, 14 MIGUEL REYES,JR. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD AMENDED COMPLAINT Page 48 1 2 PROOF OF SERVICE 3 4.11I,the undersigned declare: 4. I am a citizen of the United States of America,am over the age of eighteen(18)years and 5 not a party to the within action. I am an employee of the Law Offices of David F.Beach and my address is 100 Stony Point Road,Suite 185,Santa Rosa,California 95401,which is located in the 6 County of Sonoma. 7 On the date stated below, I caused to be served in the manner indicated the following document(s): AMENDED CASE MANAGEMENT STATEMENT on the parties involved 8 addressed as follows: 9 10 SEE ATTACHED SERVICE LIST 11 12 XXX BY ELECTRONIC DELIVERY:On the date specified below,by or before 5:00 p.m.,I transmitted from electronic notification address mschiipbaclt@dfbeaclelalv.com,a true copy of the above-referenced 13 documents(s)to OneLegal for electronic service.. 14 BY PERSONAL DELIVERY:1 caused each such envelope to be delivered by hand to the offices of each addressee above. 15 BY MAIL:I caused each envelope,with postage thereon fully prepaid,to be placed in the United States 16 mail at Santa Rosa,California. 1 am readily familiar with the business practice for collection and processing of mail in this office,ice,that in the ordinary course of business said document would be deposited with the US 17 Postal Service in Santa Rosa on that same day. I understand that service shall be presumed invalid upon motion of a party served if the postal cancellation date or postage meter date on the envelope is more than 18 one day after the date of deposit for mailing contained on this declaration. 19 BY FA CSIMILE:By use of facsimile machine telephone number(707)547-1694,I served a copy of the within document on the interested parties at the facsimile numbers listed. The transmission was reported as 20 complete and without error. 21 BY OVERNIGHT DELIVERY: I caused each envelope, with delivery fees provided for, to be deposited in a box regularly maintained by UPS or Federal Express. I am readily familiar with the Law 22 Offices of David F.Beach's practice for collection and processing of correspondence for overnight delivery. and know that in the ordinary course of the Law Offices of David F.Beach's business practice the documents) 23 described above will be deposited in a box or otherfacility regularly maintained by UPS or Federal Express or delivered to an authorized courier or driver authorized by UPS or Federal Express to receive documents 24 on the same date that it is placed at the Law Offices of David F.Beach for collection. 25 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 31,2005,at Santa Rosa,California. 26 27 Monica Schupbach 28 THIRD AMENDED COMPLAINT Page 49 1 GAS PIPELINE EXPLOSION CASES JUDICIAL COUNCIL COORDINATION PROCEEDING NO.:4433 2 SERVICE LIST (Updated September 27,2005) 3 Attorneys for Victor Rodrigues(deceased) Attorneys for Victor Rodrigues(deceased) 4 and Israel Hernandez(deceased) and Israel Hernandez(deceased) John M.Anton,Esq. Antonio Ruiz,Esq. 5 William E.Lombardini,Esq. Concepcion E.Lozano-Batista,Esq. Boxer&Gerson Weinberg,Roger&Rosenfeld 6 300 Frank H.Ogawa Plaza.Ste 500 1001 Marina Village Pkwy,Ste 200 Oakland,CA 94612 Alameda,CA 94501-1091 7 Tele: 510-835-8870 Tele: 510-337-1001 Fax: 510-835-0415 Fax: 510-337-1023 . g Attorneys for Jeremy Knox Attorneys for Javier Ramos(deceased) 9 Peter J.McNulty,Esq. Mark C.Lieber,Esq. McNulty Law Firm Steinbrecher&Associates 10 827 Moraga Drive 16830 Ventura Blvd.,Ste.B Los Angeles,CA 90049 Encino,CA 91436 11 Tele: 310-471-2707 Tele: 818-528-7600 Fax: 310-472-7014 Fax: 818-528-7620 12 Attorneys for Tae Chin"Gene"Im(deceased) Attorneys for Miguel Fuentes 13 James Larsen,Esq. Steven J.Brewer,Esq. Gillin,Jacobson,Ellis&Larsen Gwilliam,Ivary,Chiosso,Cavalli&Brewer 14 2 Theatre Square,Ste.230 1999 Harrison Street,Ste. 1600 Orinda,CA 94563 Oakland,CA 94612 15 Tele: 925-253-5800 Tele: 510-832-5411 Fax: 925-253-5858 Fax: 510-832-1918 16 Attorneys for Martin Topete Attorneys for Lien Claimant SCIF 17 Gregory W. Moreno,Esq. Karen L.Roberts,Esq. Moreno,Becerra,Guerrero&Casillas State Compensation Insurance Fund 18 3500 W.Beverly Blvd. P.O.Box 12971 Montebello,CA 90640 Oakland,CA 94604-2971 19 Tele: 323-725-0917 2955 Peralta Oaks Court Fax: 323-725-0350 Oakland,CA 94605-5398 20 Tele: 510-729-7830 Fax: 510-729-7874 21 Attorneys jor EBMUD Attorneys for Mountain Cascade 22 Craig Spencer,Esq. Ralph A.Zappala,Esq. General Counsel,EBMUD Shawn A.Tolliver,Esq. 23 373 Eleventh St.(MS 904) Lewis,Brisbois,Bisgaard&Smith Oakland,CA 94623 One Sansome Street,14's Fl. 24 Tele: 510-287-0174 San Francisco,CA 94111 Fax: 510-287-0162 Tele: 415-362-2580 25 Fax: 415-434-0882 Michael P.Verna,Esq. 26 Bowels&Verna- Attorneys for Mountain Cascade 2121 N.California Blvd.,Suite 875 John W.Busby,II,Esq. 27 P.O.Box 8180 Attorney at Law Walnut Creek,CA 94596-8180 1212 Broadway,10'Floor 28 Tele: 925-935-3300 Oakland,CA 94612 THIRD AMENDED COMPLAINT Page 50 I Fax: 925-935-0371 Tele: 510-465-2800 Fax: 510-451-3002 2 Donald W.Carlson,Esq. Attorneys for Defendant Camp Dresser Carlson,Calladine&Peterson LLP Michael J.Higginbothum,Esq. 3 353 Sacramento Street,16th Floor Long&Levit LLP San Francisco,California 94111 465 California Street,5th Floor 4 Tele:415-391-3911 San Francisco,California 94104 Fax:415-391-3898 Tele:415-397-2222 5 Fax:415-397-6392 6 Attorneys for Kinder Morgan Attorneys for Modern Continental 7 William H.G.Norman,Esq. Bradford A.Nilsson,Esq. Jill Rowe,Esq: John A.Foust,Esq. 8 Cooper,White&Cooper Thelen,Reid&Priest 11 201 California St.,17'Fl. 101 Second Street,Ste.1800 9 San Francisco,CA 94111 San Francisco,CA 94105 Tele: 415-433-1900 Tele: 415-371-1200 10 Fax: 415-433-5530 Fax: 415-371-1211 11 Attorneys for Comforce Corp Attorneys for Roger Paasch 12 Peter J.Linn,Esq. John Gomez MURPHY PEARSON,BRADLEY&FEENEY McCLENNAN&GOMEZ 13 88 Kearny Street,10'Floor 1144 State Street San Francisco,CA 94108 San Diego,Ca 92101 14 Tele: 415-788-1900 Tele: 619-231-0505 Fax: 415-393-8087 Fax: 619-544-0540 15 16 Attorneys for Comforce Corp Attorneys for Roger Paasch. Dennis B.Kass,Esq. Philip M.Cohn 17 MANNING&MARDER,et at. LAW OFFICES OF PHILIP M.COHN 23'd Floor at Figueroa Tower 1550 Hotel Circle N.,Suite 170 18 660 South Figueroa St. San Diego,CA 92108 Los Angeles,CA 90017 Tele: 619-297-5100 19 Tele: 213-624-6900 Fax: 619-297-0028 Fax: 213-624-6999 20 21 Attorneys for Carrollo Engineers Attorneys for City of Walnut Creek Robert C.Hendrickson,Esq Thomas G.Beatty,Esq. 22 HANCOCK,ROTHERT&BUNSHOFT McNamara,Dodge,Ney,Beatty 4 Embarcadero Center,3rd Floor Pfalzer&Borges,LLP 23 San Francisco,CA 94111 1211Newell Avenue,POB 5288 Tele: 415-981-5550 Walnut Creek,CA 94596-1288 24 Fax: 415-955-2599 Tele: 925-939-0203 Fax: 925-939-5330 25 Chair,Judicial Council of California Presiding Judge of the Superior Court of California, 26 Administrative Office of the Courts .County of Contra Costa Attn:Appellate&Trial Court 825 Court Street 27 Judicial Services(Civil Case Coordination) Martinez,CA 94553 455 Golden Gate Ave. 28 San Francisco,CA 94102 THIRD AMENDED COMPLAINT Page 51 I Hon.Cecilia Castellanos,Dept 18 Alameda County Superior Court 2 County Administration Building 1221 Oak Street 3 Oakland,CA 94612 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD AMENDED COMPLAINT Page 52 is SUIV ONS SUM-100 (CITACION JUDICIAL) FORCOURTUSEONCY NOTICE TO DEFENDANT: fsot.o rARAuso DE LA CORTE) (A VISO AL DEMANDADO): EAST BAY. MUNICIPAL UTILITY DISTRICT; KINDER. MORGAN ENERGY PARTNERS, L.P.; SF.PP, L.L.P.; KINDER MORGAN, INC:. ; KINDER MORGAN G.P., INC.; CAMP DRESSER & MCKEE INC. ; CAROLLO ENGINEERS; COMFORCE TECHNICAL SERVICES, INC. and DOES 1 through 300, inclusive, YOU ARE BEING SUED BY PLAINTIFF: (LO ES.TiA DEMANDANDO EL DEMANDANTS): TORRY TAYLOR and YVETTE GASCA—TAYLOR You have.30 CALENDAR DAYS.after this summons and legal papers are served on youto his a written response at this.court and have a copy served on.the plaintiff. A letter or phone call will not protect you.Your written.response must be in proper legal form-if you want the court to hear your case. There may be it court form that you can use for youx response.You.can rind these court forms and more information at the California Courts Online SeWlielp Center(WW'04courtinfo.ca.gov/selfhelp),your county taw likrary;:or the courthouse. nearest you. Ifyou cannot pay the filing fee,ask the court clerk fora fee Waiver form. If you do notfilb your re$ponse..on time„you may lose the case by default,and your wages,money,and property may be taken Without further warning from the.court There.are other legal requirements.You may.Want to.call anattoiMy right away:If you do not know an attorney,you may want to.call an attorney referral service.if you cannot afford an attorney,you may be:eiigible for free legal services froma nonprofit legal services Program.You can locate.these nonprofit groups at the California.Legal Services Web.site(www.lawhelpcalifomia.org),the California. Courts.Online Self-Help•Center(www.courtinfo.ca.govlselfheip),or bycontacting yourfocal court or county bar association. Tiene 30 D(AS 13E CALENDARIO despues da que Is entreguerr'ests Wlaitbrr y poppies legales para.presentar.una respuesla por escrfto en esta code y hacer que se entregue una copia'ai deman.dante: Una Carta o una.11amada telefonica no 10 protegen. Su mspuesta por escrito tiene que estaren formato legal correcto si desea que procesen su caso en:la code. Es posfbfe que hays un formvladD que usted pueda usar para su respuesta. Puede encontiar estos formuiarios de M code y miss fnformeci6a en el:centro.de Ayuda de las Cortes de California(www courtinfo.ca.gov/se/fhelp✓espanoU),en la Aiblioteca dei!eyes de su condadn o en/a c6hi?que le quede Inas cerca..Sino puede pagar is cuota de presentacion,Aida al secretbr)o de la corte'que le d8 un formulario de.exenci6n tie pago de evotas. Sino presenfa su respuesta a tiempo,puede perder el caso por incumplimfento..y la.cdrte le pods qu..itarsu suefdo,:dinery y bienes sin mos advertencia. Hay otros requishos lega/es. Es recomendable que llarne:a un abogado inmedlefamerite. Sino conoce a un abogado,•puede itamar a un servicfo de remisfdn a abogados. Si no puede pagar a un abogado,es poslble.que cumpla can los:requfsitos pardr obterter servfcios legales gratuitos de un programa de seivicios legates sin fines de lucro.Puede encontrar estos grupos,sin fines de lucro en a/sitio web de California.Legal Services,(www.lawhelpcafif0rn1s:orqjI,en el Centro de Ayuda de:las Cortes de California; (www.courtinfo.ca.ggylselfhelplespanob)o.ponlendose en contaoto con to Corte o el colegio de:abogados locales. The name and address of the court is; ci`sgMCEr:(1.5 02 Q (El nombre.y direcci6n de.la Corte es): (nm�.,d.rcr.5 SUPERIOR COURT OF CALIFORNIA 125. Court Street P.O. Box 9.11 Martinez, California 94553 The name,address, and telephone number of plaintiffs attorney;or plaintiff without an attorney,is: (El nombre;la dlrecci6n y el nt mero de lelefono del abogado del demandanfe,:o del dem me 406 no tiene abogado,:es): PETER J. :H'IN.TON (9 •5 9:32'6006 (.925) 932-3412 HINTON, ALPERT & SUMNER 1646 N. California Boulevard, Suite 660 Walnut Creek, California 94596 DATE; :Nov t� 2005 Clerk,by Deputy Fecha ty aSecretario Ad•unto (For proof ofservice of fhls.summons,use Proof of Servige of'Summons(form PC 10 (Para prueba de entrega.de alta eitafic5n u..se el folmulario Proof of Service of Summo ,(POS-010)). NOTICE TO THE.PERSON SERVED:You are:se d ISEALi .... 1. as an individual defendant:. 2. f as the person sued under the fictitious name of(specify): ... A t 3 .........< on.behalf of(specify); : under: (� CCP 416.1.0.(corporation) ;CGP 416,60.(minor) • ` i. . (_= CCP 416.20(defunct corporation) I GOP 416.70(conservatee) t �% •' —' CCP 416.40.association orpartnership) .l'f_., . ;;� ( P. p) I........I CCP 416,90('authorized person) .........._., 1�j}p•;: ?!` �” other(specify): 4. i by personal delivery on(date): Page 1611 a.. Form Adopted fornd Caom MaRUse: . Judicial Council of ndatry U • Code of CMI Procedure§§472.20,4fi5 Sura-100 iRev.January 1,20041. SUMMONS soft w S .ic tv�~DCr(�3g r CM-010 1ATTORNEY OR PARTY WITHOUT ATTORNEY(Name.stare bar number,and address): FOR COURT USE ONLY PETER W. ALFERT, ESQ. (SBN 83139) HINTON, ALFERT & SUMNER 1646 N. California Boulevard, Suite 600 j l� �j Walnut Creek, California 94596 1 rf TELEPHONE NO: (925) 932-6006 FAXNO.: (925) 932-3412 ATTORNEY FOR Name: Plaintiffs TORRY TAYLOR and YVETTE AS A-TAYLOR SUPERIOR COURT OF CALIFORNIA,COUNTY OFCONTRA COSTA o 5 STREETADDRESS: 725 Court Street (� MAILINGADDRESS: P.O. BOX 911 tS CfTYANDZIPCODE: Martinez, California 94553 ' BRANCH NAME: ��i:i CASE NAME: Torry Taylor, et al. vs. East Bay Municipal ry Utility District et al. CIVIL CASE COVER SHEET _Complex Case Designation LTSE NV.5- '_.25..-1 Unlimited ; . Limited Counter [ ] Joinder �/ V (Amount (Amount Filed with first appearance by defendant JUDGE Terence Bruniers demanded demanded is exceeds$25,000) $26,000 or less) (Cal.Rules of Court,rule 1811) DEPT.: 5 All five 5 items below must be completed see instructions on page 2). 1. Check one box below for the case type that best describes this case: Auto Tort Contract Provisionally Complex Civil Litigation ___�Aulo(22) (�Breach of contract/warranty(06) (Cal.Rules of Court,rules 180P-1812) Uninsured motorist(46) _]Collections(09) �]Antitrust/Trade regulation(03) Other PUPD/WD(Personal Injury/Propertyt Damage/Wrongful Death)Tort insurance coverage(18) -.. ,Construction defect(10) Other contract(37) i_.X J Mass tort(40) Asbestos(04) Real Property 1__. .� Securities litigation(28) Product liability(24) L-_.�Eminent domain/Inverse �_._..t EnvironmenlaVToxic tort(30) �._-.-•.�Medical malpractice(45) condemnation(14) {.__] Insurance coverage claims arising from the LXJ Other PI/PDIWD(23) r Wrongful eviction(33) above listed provisionally complex case Non-PUPDNVD(Other)Tort LJ (41) _�Other real property(28) Enforcement of Judgment i Business tortfunfair business practice(07) 9 Civil rights(08) Unlawful Detainer ( -. j Enforcement of judgment(20) Commercial(31) Defamation(13) Miscellaneous Civil Complaint i Fraud(16) �__._�Residential(32) f--I RICO(27) i Intellectual property(19) ��Drugs(38) 1 Other complaint((rot specified above)(42) -� Judicial Review Professional negligence(25) I ]Other non-PI/PD/WD tart(35) �._�Asset forfeiture(05) Miscellaneous Civil Petition L-._�Petition re:arbitration award(11) �—I Partnership and corporate governance(21) Employment ' j Wrongful termination(36) [ Writ of mandate(02) Other petition(not specified above)(43) _j Other employment(15) L._ Other judicial review(39) 2. This case Lx J is F.-.] is not complex under rule 1800 of the California Rules of Court.If case is complex,mark the factors requiring exceptional judicial management: a. X : Large number of separately represented parties d. i.- ) Large number of witnesses b. ;' .. Extensive motion practice raising difficult or novel e. 1_20 Coordination with related actions pending in one or more courts _ issues that will be time-consuming to resolve in other counties,states or countries,or in a federal court FTI_' Substantial amount of documentary evidence f. Substantial post-judgment judicial supervision 3. Type of remedies sought(check all that apply): a. I_x, j monetary b. = nonmonetary;declaratory or injunctive relief c. x 1 punitive 4. Number of causes of action(specify): Neglig.; Strict Liab.-Ultra-Hazardou ctivity; Willfull Hi cond.; Li0 Cons. 5. This case �_-...� is 3( 1 is not a Class action suit. y Date: NOVEMBER 9, 2005 ' PETER W. ALFERT (TYPE OR PRINT NAME) fSIGNATURE OF PARTY N NOTICE Plaintiff must file this cover sheet with the first paper filed in the action or proceeding(except small claic ses or cases filed under the Probate,Family,or Welfare and Institutions Code).(Cal.Rules of Court,rule 201.8.) Failure to I e may result in sanctions. -. e File this cover sheet in addition to any cover sheet required by local court rule. e If this case is complex under rule 1800 et seq.of the California Rules of Court,you must.serve a copy of this cover sheet on all other parties to the action or proceeding. Unless this is a complex case this cover sheet shall be use for statistical purposes only. Page 1 of 2 Form Adoopted for Mmdalory UseCIVIL CASE COVER SHEET a. ides of Court,rules 2o1.B-1 -18-12. Jwictal Council or Caldwma - _ Stand.,ft or Judicial Adminisuatiion.1;19 CM-010[Rev.July 1,20031 SOU all$ 11KNUS INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET To Plaintiffs and Others Filing First Papers If you are filing a first paper(for example,a complaint)in a civil case,you must complete and file,along with your first paper,the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must check all five items on the sheet. In item 1,you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1,check the more specific one. If the case has multiple causes of action,check the box that best indicates the primary cause of action. To assist you in completing the sheet,examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. You do not need to submit a cover sheet with amended papers. Failure to file a cover sheet with the first paper filed in a civil case may subject a party,its counsel,or both to sanctions under rules 201.8(c)and 227 of the California Rules of Court. To Parties in Complex Cases In complex cases only,parties must also use the Civil Case Cover Sheet to designate whether the case is complex. It a plaintiff believes the case is complex under rule 1800 of the California Rules of Court,this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex,the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation,a counter-designation that the case is not complex,or,if the plaintiff has made no designation,a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Tort Contract Provisionally Complex Civil Auto(22)—Personal Injury/Property Breach of Contract/Warranty(06) Litigation(Cal.Rules of Court Rule Damage/Wrongful Death Breach of Rental/Lease 1800-1812) Uninsured Motorist(46)(if the Contract(not unlawful detainer Antitrust/Trade Regulation(03) or wrongful i eviction) Construction Defect case involves an uninsured (10) ll h—S a Br rrant t/W Contracay Breach—Seller mo/orist claim subject to Claims Involving Mass Tort(40) Plaintiff(not fraud or negligence) arbitration,check this item Negligent Breach of ContracU Securities Litigation(28) instead of Auto) Warranty Toxic Tort/Environmental(30) Other Breach of Contract/Warranty Insurance Coverage Claims Other PIIPD/WD(Personal Injuryl Collections(e.g..money owed,open (arising from provisionally Property Damage/Wrongful Death) book accounts)(09) complex case type listed above) Tort Collection Case--Seller Plaintiff (41) Asbestos(04) Other Promissory Note/Collections Asbestos Property Damage Case Enforcement of Judgment Asbestos Personal Injury/ Insurance Coverage(not provisionally Enforcement of Judgment(20) Wrongful Death complex)(18) Abstract of Judgment(Out of Product Liability(not asbestos or Auto Subrogation County) toxic%nvimnmental)(24) Other Coverage Confession of Judgment(non- Medical Malpractice(45) Other Contract(37) domestic relations) Medical Malpractice— Contractual Fraud Sister State Judgment Other Contract Dispute Administrative Agency Award Physicians Surgeons Other Professional Health Care Real Property (not unpaid taxes) Malpractice P � PetitionlCertification of Entry of P Eminent Domain/Inverse Judgment on Unpaid Tax Other PI/PD/WD(23) Condemnation(14) Other Enforcement of Judgment Premises Liability(e.g.,slip Wrongful Eviction(33) Case and fall) Other Real Property(e.g quiet title)(26) Intentional Bodily Injury/PD/WD Writ of Possession of Real Property Miscellaneous Civil Complaint (e.g.,assault,vandalism) Mortgage Foreclosure RICO(27) Intentional Infliction of Quiet Title Other Complaint(not specirred Emotional Distress Other Real Property(not eminent above)(42) Negligent Infliction of domain,landlord4enant,or Declaratory Relief Only Emotional Distress foreclosure) Injunctive Relief Only(non- Other PIlPD/WD Unlawful Detainer harassment) Commercial(31) Mechanics Lien Non-PI/PD/WD(Other Tort Other Commercial Complaint Residential(if Case non-tort/non-complex) lex Business Tort/Unfair Business Drugs(38)(rf the case involves illegal ( p ) Practice(07) Other Civil Complaint drugs,check this item;otherwise, non-torVnon-complex) lex Civil Rights(e.g.,discrimination, ( P ) false arrest){not civil report as Commercial or harassment)not Residential.) Miscellaneous Civil Petition Partnership and Corporate Defamation(e.g..slander,libel) Judicial Review Governance(21) (13) Asset Forfeiture(05) Other Petition(not specified above) Fraud(16) Petition Re:Arbitration Award(11) (43) Intellectual Property(19) Writ of Mandate(02) Civil Harassment Professional Negligence(25) Writ--Administrative Mandamus Workplace Violence Legal Malpractice Writ—Mandamus on Limited Court Elder/Dependent Adult Other Professional Malpractice Case Matter Abuse (not medical or legal) Writ—Other Limited Court Case Election Contest Other Non-PI/PD/WD Tort(35) Review Petition for Name Change Employment Other Judicial Review(39) Petition for Relief from Late Review of Health Officer Order Claim Wrongful Termination(36) Notice of Appeal—Labor Other Civil Petition Other Employment(15) Commissioner Appeals CM-010 IRm July+.20031 CIVIL CASE COVER SHEET Page 2 of 2 I PETER J.HINTON,State Bar No. 36400 PETER W. ALFERT,State Bar No. 83139 2 ELISE R. SANGUINETTI State Bar No. 191389 HINTON,ALFERT&SUMNER 3 1646 N. California Blvd.,Suite#J600 Walnut Creek,California 94596 S . 4 Telephone:(925)932-6006 5 Facsimile: (925)932-3412 MICHAEL J. APPEL,State Bar No. 56461 `y 6 JOSEPH J.APPEL,State Bar No. 87778 LAW OFFICES OF APPEL&APPEL 7 One Walnut Creek Center 100 Pringle Avenue,Suite 730 8 Walnut Creek,CA 94596 Telephone: (925)938-2000 9 Facsimile: (925)938-2728 10 Attorneys for Plaintiffs 11 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 FOR THE COUNTY OF CONTRA COSTA 13 14 TORRY TAYLOR and YVETTE GASCA- Case Nce 05 - 02306 TAYLOR, 15 Plaintiffs, 16 V. COMPLAINT FOR DAMAGES 17 EAST BAY MUNICIPAL UTILITY 18 DISTRICT;KINDER MORGAN ENERGY PARTNERS,L.P.; SFPP,L.L.P.;KINDER 19 MORGAN,INC.; KINDER MORGAN G.P., Jury trial demanded INC.;CAMP DRESSER&McKEE INC.; 20 CAROLLO ENGINEERS;COMFORCE TECHNICAL SERVICES,INC. and DOES I 21 through 300,inclusive, PER LOCAL RULE 5 THIS 22 Defendants. CASE IS ASSIGNED TO �S DEPT 23 24 25 26 27 28 COMPLAINT FOR DAMAGES I PARTIES AND VENUE 2 Plaintiffs,and each of them,allege: 3 1. Plaintiff TORRY TAYLOR is,at all times mentioned herein was,a resident of the 4 County of Contra Costa,State of California. 5 2. Plaintiff YVETTE GASCA-TAYLOR is,and at all times mentioned herein was,a 6 resident of the County of Contra Costa,State of California. 7 3. Defendant EAST BAY MUNICIPAL UTILITY DISTRICT(hereinafter 8 "EBMUD")is,and at all times mentioned herein was,a publicly owned utility formed under the 9 Municipal District Act passed by the California Legislature in 1921. EBMUD maintains its 10 administrative and headquarters' offices and is situated in the City of Oakland,County of Alameda, 1 I State of California. EBMUD planned,designed,owned,supervised,controlled,and constructed a 12 public works construction project known as the Walnut Creek-San Ramon-Valley Improvement 13 Project("Project,")which involved the installation of a water pipeline("EBMUD Pipeline.") The 14 route of the EBMUD Pipeline was to be generally parallel to,east of,and above a high-pressure 15 fuel pipeline system located in,among other places,the City of Walnut Creek,County of Contra 16 Costa, State of California("Kinder Pipeline.")The section of the Project and Kinder Pipeline at 17 issue in this complaint was located within downtown Walnut Creek,California in the direct 18 vicinity of business entities,a school,and residences. On or about May 6,2005,Plaintiffs,and 19 each of them,presented their claims to EBMUD pursuant to Government Code section 910. On or 20 about May 10,2005,EBMUD rejected the claims in their entirety. 21 4. Defendant KINDER MORGAN ENERGY PARTNERS,L.P.(hereinafter"KMEP") 22 is,and at all times mentioned herein was,a limited partnership duly organized and existing under 23 the laws of the State of Delaware,and qualified and doing business in the State of California. 24 KMEP is,and at all times relevant herein was,the designer,manufacturer,owner,operator, 25 manager,locator,field marker,monitor,and inspector of the Kinder Pipeline. KMEP is the largest .26 independent owner/operator of products pipeline in the United States,transporting more than two 27 million barrels a day of gasoline,jet fuel and diesel fuel and up to 7.8 billion cubic feet a day of 28 natural gas liquids through more than 10,000 miles of pipelines,of which some 3,850 are in its COMPLAINT FOR DAMAGES I Pacific pipeline system. It is the largest publicly traded pipeline limited partnership in the United 2 States in terms of market capitalization. 3 5. Defendant SFPP,L.L.P.(hereinafter"SFPP")is,and at all times mentioned herein 4 was,a limited partnership duly organized and existing under the laws of the State of Delaware,and 5 qualified and doing business in the State of California. SFPP is,and at all times relevant hereto 6 was,the designer,manufacturer,owner,operator, manager,locator, field marker,monitor,and 7 inspector of the Kinder Pipeline. SFPP is an operating partnership and subsidiary limited 8 partnership of KMEP. 9 6. Defendant KINDER MORGAN,INC. (hereinafter"KMI")is,and at all times 10 mentioned herein was,a corporation duly organized and existing under the laws of the State of 11 Kansas, and qualified and doing business in the State of California. KMI is,and at all times 12 relevant herein was,the designer,manufacturer,owner,operator,manager,locator, field marker, 13 monitor,and inspector of the Kinder Pipeline. KMI is one of the largest mid-stream energy 14 companies in the United States,owning and/or operating more than 35,000 miles of natural gas and 15 products pipeline. 16 7. Defendant KINDER MORGAN G.P.,INC. (hereinafter"KMGP")is,and at all 17 times mentioned herein was,a corporation duly organized and existing under the laws of the State 18 of Delaware,and qualified and doing business in the State of California as,among other things,the 19 general partner of KMEP. KMGP,is,among other things,the wholly owned subsidiary of KMI. 20 KMGP is,and at all times relevant herein was,the designer,manufacturer, owner,operator, 21 manager,locator, field marker,monitor,and inspector of the Kinder Pipeline. 22 8. Defendant CAMP DRESSER&McKEE INC.("hereinafter"CDM")is,and at all 23 times mentioned herein was,a corporation duly organized and existing under the laws of the State 24 of Massachusetts, and qualified and doing business in the State of California. CDM entered into a 25 contract with,among others,EBMUD to,among other things,provide consulting,design and 26 related engineering services for the Project. CDM then entered into a subcontract with Defendant 27 CAROLLO ENGINEERS to,among other things,provide consulting,design and related 28 engineering services for the portion of the Project at issue in this lawsuit. (Plaintiffs will file the COMPLAINT FOR DAMAGES s I required certificate of merit pursuant to Code of Civil Procedure section 411.35.) 2 9. Defendant CAROLLO ENGINEERS(hereinafter"CAROLLO")is, and at all times 3 mentioned herein was,a professional corporation duly organized and existing under the laws of the 4 State of Arizona,and qualified and doing business in the State of California. CAROLLO entered 5 into a subcontract agreement with CDM to,among other things,provide consulting,design and 6 related engineering services for the Project,the portion of which is at issue in this lawsuit. 7 (Plaintiffs will file the required certificate of merit pursuant to Code of Civil Procedure section 8 411.35.) 9 10. Defendant COMFORCE TECHNICAL SERVICES;IN.C.(hereinafter 10 "COMFORCE")is,and at all times mentioned herein was,a corporation duly organized and 11 . existing under the laws of the State of Delaware,and qualified and doing business in the State of 12 California. COMFORCE is a provider of contingent staffing,information technology,consulting 13 and human resource outsourcing solutions. COMFORCE provided temporary staffing of pipeline 14 construction inspectors to and was hired by,among others,KMEP,SFPP,KMGP,and KMI,with 15 respect to the Project and Kinder Pipeline. 16 11. DOES 1-50,inclusive,and each of them,are,and at all times mentioned herein 17 were, individuals and/or business organizations form unknown that were engaged in the business of 18 planning,designing,owning,supervising,controlling and constructing the Project. 19 12. DOES 51-100,inclusive,and each of them,are,and at all times mentioned herein 20 were,individuals and/or business organizations form unknown that were engaged in the 21 construction,supervision,operation,and control of the Project as contractors or subcontractors 22 hired by EBMUD,and DOES 1-50. 23 13. DOES 101-150, inclusive,and each of them,are,and at all times mentioned herein 24 were, individuals and/or business organizations form unknown that designed,manufactured,sold, 25 owned,controlled,operated,maintained, inspected,distributed,transported, located, field marked, 26 monitored,and managed the Kinder Pipeline and/or contents therein. 27 14. DOES 151-200,inclusive,and each of them,are,and at all times mentioned herein 28 were, individuals and/or business organizations form unknown that were the owner(s)and/or - 3 - COMPLAINT FOR DAMAGES I bailee(s)of the backhoe vehicle which struck the Kinder Pipeline. 2 15. DOES 201-250,inclusive,and each of them,are,and at all times mentioned herein 3 were,individuals and/or business organizations form unknown that drove and/or operated the 4 backhoe vehicle which struck the Kinder Pipeline. 5 16. DOES 251-300, inclusive,and each of them,are,and at all times mentioned herein 6 were,individuals and/or business organizations form unknown that owned or controlled the real 7 property where the Project,EBMUD Pipeline,and Kinder Pipeline was located. 8 17. Plaintiffs,and all of them,are ignorant of the true names and/or capacities of 9 defendants sued herein as DOES 1-300;inclusive,and therefore sue these defendants by such 10 fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities 11 when ascertained. Plaintiffs are informed and believe,and on that basis allege,that each of said 12 fictitiously named defendants is responsible in some manner for the occurrences herein alleged, 13 and that the injuries herein alleged were proximately caused by said their conduct. 14 18. Plaintiffs are informed and believe and on that basis allege that at all times 15 mentioned herein,each of the defendants was.the agent and employee of each of the remaining 16 defendants,and in doing the things"alleged in this complaint,was acting within the course and 17 scope of this agency and employment,with the knowledge,approval,consent and ratification of 18 each of the remaining defendants. 19 19. Plaintiffs are informed and believe,and thereon allege,that at all times relevant, 20 there exists,and has existed,a unity of interest and ownership between KMEP,SFPP,KMGP and 21 KMI,and DOES 101-150,and each of them.,such that.any individuality and separateness between 22 the entities has ceased to exist. Upon information and belief,KMEP is the alter ego of KMGP, 23 SFPP,KMI, and DOES 101-150, and each of them. Upon information and belief,SFPP is the alter 24 ego of KMEP,KMGP,KMI,and DOES 101-150,and each of them.Upon information and belief, 25 KMGP is the alter ego of KMI,and DOES 101-150. Among other things,(a)KMEP was and is 26 completely controlled,dominated,managed and operated by KMGP and KMI,and DOES 101-150, 27 and each of them,(b)SFPP was and is completely controlled,dominated,managed and operated by 28 KMEP,KMGP,KMI and DOES 101-150,and each of them,(c)KMGP was and is completely -4- COMPLAINT FOR DAMAGES I controlled,dominated, managed and operated by KMI, and DOES 101-150,and each of them,(d) 2 KMEP, SFPP,KMGP, KMI and DOES 101-150,and each of them,have permitted assets to be 3 transferred between themselves without adequate consideration,(e)KMEP,SFPP,KMGP,KMI 4 and DOES 101-150,and each of them,have disguised corporate profits in order to evade liability 5 and the payment of judgments,and(f)KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each 6 of them,was and is inadequately capitalized. Adherence to the fiction of the separate existence of 7 KMEP,SFPP, KMGP,KMI and DOES 101-150,and each of them,would permit an abuse of the 8 corporate privilege and would sanction fraud or promote injustice because the entities,and each of 9 them,used in bad faith for the purpose of evading liability and as a means of allowing the other 10 entities,and each of them,to profit from their control and manipulation free from the claims of II Plaintiffs. 12 20. Because the incident causing injury to plaintiffs occurred in Walnut Creek, 13 California,venue is proper in the Superior Court of the State of California,County of Contra 14 Costa. 15 GENERAL ALLEGATIONS 16 21. Plaintiffs,and each of them,incorporate each and every allegation contained in 17 paragraphs 1 through 20 above,as though fully set forth herein. 18 22. EBMUD,and DOES 1-50,and each of them,planned,designed,owned,supervised, 19 controlled,and constructed the Project,which involved the installation of the EBMUD Pipeline. 20 EBMUD began the design of the Project in 2000. EBMUD entered into a contract with CDM for 21 CDM to,among other things,provide consulting,design and related engineering services for the 22 Project. CDM later entered into a subcontract with CAROLLO,whereby CAROLLO would, 23 among other things,provide consulting,design and related engineering services for the portion of 24 the Project which is at issue in the present lawsuit. 25 23. EBMUD's general contract was initially awarded on or about October of 2002 to 26 Modern Continental Construction Co.(hereinafter"Modern Continental"). In late 2002,the full 27 Kinder Pipeline was marked by a line rider employed by KMEP,SFPP,KMGP,KMI, 28 COMFORCE,and DOES 101-150,and each of them. The line rider was supposed to be using -5- COMPLAINT FOR DAMAGES I conductive locating equipment. The line rider marked the Kinder Pipeline by placing paint marks 2 and flags along the Kinder Pipeline,but failed to indicate a bend in the line at station 100+15 3 where an oak tree once stood. 4 24. Prior to beginning field work on the Project,a field meeting was held on or about 5 February 3,2003 between,among others,Modern Continental,EBMUD,KMEP,SFPP,KMI, 6 KMGP,COMFORCE,and DOES l-150,and each of them. At the conclusion of the field meeting, 7 representatives of EBMUD,KMEP,SFPP,KMGP,KMI,COMFORCE,and DOES 1-150,and 8 each of them,walked the South Broadway portion of the Kinder Pipeline. No fresh field markings 9 were observed and no offsets were marked or pointed out by EBMUD,KMEP,SFPP,KMGP, 10 KMI,COMFORCE, and DOES 1-150,and each of them,around station 100+15. As of March of 11 2003,no field markings were visible around station 100+15. 12 25. In addition,in or about 2003 or 2004, Modern Continental was excavating for the 13 EBMUD Pipeline and Project,and determined that a segment of the Kinder Pipeline was 14 approximately 13 feet from where it had been field marked by KMEP,SFPP,KMGP,KMI, 15 COMFORCE, and DOES 101-150,and each of them. Modern Continental expressed this concern 16 to,among others,EBMUD,KMEP,SFPP,KMGP,KMI,and DOES I-50,and 101-150,and each 17 of them. In addition,in or about August of 2003,EBMUD requested KMEP,SFPP,KMGP,KMI, 18 and DOES 101-150,and each of them,to relocate a section of the Kinder Pipeline because it was, 19 among other things,hard to locate and a hindrance to completion of the Project. In or about early .20 2004,Modern Continental,EBMUD,and DOES 1-50,and each of them,were extremely 21 concerned about the location of the Kinder Pipeline because it was still in the way of the 22 excavation for the EBMUD Pipeline and Project. Among others,Modern Continental, EBMUD, 23 KMEP,SFPP,KMGP,KMI,and DOES 1-50,and 101-150,and each of them,discussed in early 24 2003 the location of the Kinder Pipeline and how to continue working on the Project despite the 25 location of the Kinder Pipeline. 26 26. On or about May 28,2004,EBMUD issued a"Notice of Default Termination"to 27 Modern Continental. 28 27. After EBMUD terminated its general contract with Modern Continental,EBMUD, -6- COMPLAINT TOR DAMAGES I and DOES 1-50,and each of them,contracted in August of 2004 with,among others,Mountain 2 Cascade Inc.(hereinafter"Mountain Cascade"),and each of them,to complete construction of the 3 Project. In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act 4 of the Public Contract Code of the State of California,Mountain Cascade thereafter subcontracted 5 with,enlisted and employed,among others, Matamoros Pipeline,Inc. to,among other things,weld 6 together segments of the EBMUD Pipeline. 7 28. Prior to starting excavation,the EBMUD/Mountain Cascade contract required a 8 field meeting between EBMUD and Mountain Cascade. The meeting occurred on September 28, 9 2004 and was attended by representatives of EBMUD,Mountain Cascade,KMEP, SFPP,KMGP, 10 KMI, COMFORCE,and DOES 1-150,and each of them. At that meeting,the line rider employed 11 by KMEP,SFPP,KMGP, KMI,COMFORCE,and DOES 1-150,and each of them,represented 12 that the line markers were directly over the Kinder Pipeline and that the Kinder Pipeline ran 13 straight between the line markers. The attendees of the meeting walked the entire length of the 14 Kinder Pipeline using a 100-foot tape to show the location of the proposed EBMUD Pipeline and 15 determine if there would be any interference with the Kinder Pipeline. Fieldwork commenced in 16 late September,2004 by which time Mountain Cascade had employed TORRY TAYLOR as an 17 underground laborer. 18 29. In or about October of 2004,benching for the trenching excavator in the area where 19 the offset took place. Mountain Cascade,and DOES 1-150,and each of them, benched over the 20 offset at station 100+15. As of November 3 and 4,2004,there were no markings indicating the 21 offset. 22 30. On or about November 8,2004,a site meeting occurred which was required by 23 Mountain Cascade three days earlier,and attended by, among others, Mountain Cascade,KMEP, 24 SFPP,KMGP,KMI,COMFORCE,EBMUD,and DOES 1-150,and each of them. One of the 25 purposes of the meeting was to provide assurance that Mountain Cascade was excavating properly. 26 At the meeting,neither KMEP, SFPP,KMGP,KMI,COMFORCE,EBMUD,nor DOES 1-150, 27 and each of them,represented anything about the offset. 28 31. On or about November 9,2004,TORRY TAYLOR, was working within the course COMPLAINT FOR DAMAGES I and scope of his employment at the Project located at South Broadway between Newell Avenue 2 and Rudgear Road in the City of Walnut Creek,County of Contra Costa,State of California, 3 performing underground labor work for his employer Mountain Cascade. 4 32. Near to where TORRY TAYLOR was working,a backhoe operator(Greg Berry) 5 excavated the trench in which the EBMUD Pipeline was being installed. 6 33. The Kinder Pipeline lay immediately adjacent to the EBMUD Pipeline trench. In 7 fact,there was a bend in the Kinder Pipeline at station 100+15,where the Kinder Pipeline veered 8 around the roots of an oak tree that once stood at that location. 9 34. As a result of the conduct of defendants,and each of them,herein,on or about 10 November 9,2004,a backhoe operator(Greg Berry),an employee of Mountain Cascade operated 1 I the backhoe as to penetrate the Kinder Pipeline,causing the flammable material within to escape 12 and combine with welding sparks to cause an explosion. At the time of the explosion,TORRY 13 TAYLOR was working within a few yards from the source of the explosion. As a result of the 14 explosion,TORRY TAYLOR suffered,among other things,personal injury,unjustifiable and 15 substantial physical pain and mental suffering,and severe emotional distress. 16 35. Prior to November 9,2004,KMEP,SFPP,KMGP,KMI and DOES 101-150,and 17 each of them,experienced numerous incidents involving its pipelines,which resulted in,among 18 other things,personal injury or property damage. KMEP, SFPP, KMGP,KMI and DOES 101-150, 19 and each of them,own a 45%interest in the Cochin Pipeline System,a 1900-mile natural gas 20 liquids pipeline operating between Alberta and Ontario Canada,traversing through seven states in 21 the United States. On or about July 16,2003,the United States portions of the Cochin Pipeline 22 System experienced a rupture and fire at a rural location about 75 miles from Fargo,North Dakota. 23 36. Approximately two weeks later on or about July 30,2003,a pipeline 24 owned/operated by KMEP, SFPP,KMGP,and KMI,and DOES 101-150,and each of them,broke 25 in a subdivision in Tucson,Arizona,spraying gasoline more than fifty feet into the air,saturating 26 five homes,and contaminating soil and groundwater. 27 37. On or about April 29,2004,a pipeline owned/operating by KMEP,SFPP,KMGP, 28 KMI and DOES 101-150,and each of them,which transported gasoline,jet fuel and diesel to -8- COMPLAINT FOR DAMAGES I Chico and Sacramento,California and Reno,Nevada experienced a rupture not discovered until 2 April 30,2004. As a result,approximately 1,000 barrels or 42,000 gallons of fuel spilled into 3 about 250 acres of Suisin Marsh,a wetland in Northern California. Criticized for the delayed 4 response,a managing agent of KMEP,SFPP,KMGP,KMI,and DOES 101-150,and each of them, 5 replied"You can't cry wolf every time you see an anomaly." 6 38. On or about November 22,2004,a pipeline owned/operated by KMEP,SFPP, 7 KMGP,KMI,and DOES 101-150,and each of them,transporting gasoline from Colton to 8 Barstow,California into Las Vegas,Nevada experienced a rupture in a rural area near Baker, 9 California. California Highway Patrol officers on nearby Interstate 15 noticed a strong odor and 10 closed the freeway,which led to the discovery of a fifty.to sixty foot gasoline vapor geyser. The I 1 spokesman for KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them, (Larry Pierce) 12 stated"it's not a significant financial impact to the company at all. It's more of an operational 13 issue." 14 39. On or about May 5,2005,California OSHA issued two Serious Willful Citations to 15 KMEP for violation of California Code of Regulations("CCR")sections 1541(b)(1)and 151l(b) 16 totaling$140,000;the evidence showed that KMEP committed an intentional and knowing 17 violation and KMEP was conscious of the fact that what it was doing constituted a violation,or 18 was aware that a hazardous condition existed and made no reasonable effort to eliminate the 19 hazard. OSHA also issued one Serious Citation to CAROLLO for violation of CCR section 20 1511(b)totaling $22,500 and one Serious Citation to EBMUD for violation of CCR section 21 151 l(b)totaling $6,750;OSHA determined with respect to CAROLLO,Mountain Cascade,and 22 EBMUD,there was a substantial probability that death or serious physical harm could result from 23 the condition which existed or from the practices,operations or processes at the workplace. 24 FIRST CAUSE OF ACTION 25 (NEGLIGENCE) 26 AS AGAINST EBMUD AND DOES 1-50,INCLUSIVE 27 40. Plaintiffs incorporate each and every allegation contained in paragraphs 1 through 28 39 above,as though fully set forth herein. - 9- COMPLAINT FOR DAMAGES 1 41. At all times relevant herein,EBMUD, and DOES 1-50, inclusive,and each of them, 2 was engaged in the business of planning,designing,owning,supervising, controlling and 3 constructing the Project and the real property where the project was located. EBMUD had an 4 employee(s)or representative(s)at the Project site to exercise exclusive control and supervision of 5 the Project and the real property where the project was located,providing surveying control and 6 quality assurance. Because of the dangerous and ultra-hazardous nature of the Project,the Kinder 7 Pipeline and contents thereof,and the location of the Kinder Pipeline in the vicinity of the EBMUD 8 Pipeline and the Project,EBMUD and DOES 1-50,inclusive,and each of them,had a 9 nondelegable duty under,among other things,OSHA regulations and California statutes and 10 common law,to plan,design,own,supervise,control,survey,and construct the Project in a safe I 1 manner to ensure the safety of the public and those working on the Project,including TORRY 12 TAYLOR. 13 42. At all relevant times herein,EBMUD and DOES 1-50,inclusive,and each of them, 14 breached said nondelegable duty by,among other things: 15 negligently and carelessly and recklessly hiring KMEP, SFPP,KMGP,KMI,. 16 COMFORCE and DOES 51-150 and 201-250,and each of them,to perform the work on the 17 Project;given, among other things,their poor safety records; 18 . negligently and carelessly and recklessly supervising and exercising retained control 19 over KMEP,SFPP,KMGP,KMI,COMFORCE,CAROLLO,CDM,and DOES 51-150 and 201- 20 250,and each of them, in the performance of their work on the Project; 21 • negligently and carelessly and recklessly failing to correctly determine the location 22 of the Kinder Pipeline before allowing excavation in the area of the EBMUD Pipeline and Kinder 23 Pipeline. EBMUD was aware of the incursion of the Kinder Pipeline into the Project as evidenced 24 by the maps created by CAROLLO and CDM,and reviewed by EBMUD. EBMUD reviewed the 25 pot-holing data derived from the field and failed to address the missing data in the vicinity of the 26 offset and failed to request additional data. 27 . negligently and carelessly and recklessly pressuring and requiring Mountain 28 Cascade and DOES 5 1-100 and 201-250,and each of them,to complete their work on the Project - 10- COMPLAINT FOR DAMAGES I in a time frame that was not feasible without endangering the safety of the public and those 2 working on the Project, including TORRY TAYLOR; 3 0 negligently and carelessly and recklessly failing to create,obtain and/or analyze the 4 proper design maps and field marking data,prior to allowing excavation near the EBMUD Pipeline 5 and Kinder Pipeline; 6 negligently and carelessly and recklessly failing to obtain the proper permits and 7 other authority for allow for work to be completed in the vicinity of the Kinder Pipeline and 8 EBMUD Pipeline; 9 negligently and carelessly and recklessly creating a dangerous condition of public 10 property by performing work,or allowing work to be performed on its behalf,on the Project in the 1 I immediate vicinity of the Kinder Pipeline as opposed to another location in the City of Walnut 12. Creek,County of Contra Costa where the Kinder Pipeline was not located; 13 . negligently and carelessly and recklessly failing to require KMEP,SFPP,KMGP, 14 KM1,and DOES 101-150,and each of them, to relocate the Kinder Pipeline to a location away 15 from the immediate vicinity of the EBMUD Pipeline and Project; 16 • negligently and carelessly and recklessly failing to notify Mountain Cascade and 17 DOES 51-100,and each of them, of concerns by other entities working on the Project or who 18 worked on the project(including among others Modern Continental,KMEP,SFPP, KMGP,KMI, 19 and DOES 51-150)regarding the location of the Kinder Pipeline to the vicinity of the EBMUD 20 Pipeline and Project; 21 . negligently and carelessly and recklessly failing to proceed,or requiring Mountain 22 Cascade,KMEP,SFPP,KMGP,KMI and DOES 51-150 and 201-250,and each of them,to 23 proceed with the work around the Kinder Pipeline and EBMUD Pipeline through safe and 24 acceptable means; 25 negligently and carelessly and recklessly failing to conduct,or requiring KMEP, 26 SFPP, KMGP,KMI and DOES 51-150,and each of them,to conduct,daily inspections by a 27 competent individual prior to the start of work and as needed throughout the shift for evidence of a 28 situation that could result in dangerous and ultra-hazardous condition,such as that which resulted . - 11 - COMPLAINT FOR DAMAGES I in the injuries of TORRY TAYLOR; and 2 . negligently and carelessly and recklessly failing to remove,or requiring KMEP, 3 SFPP,KMGP,KMI and DOES 51-150,and each of them,to remove,individuals working on the 4 Project, including TORRY TAYLOR, from the dangerous and ultra-hazardous area until necessary 5 precautions had been taken to ensure the safety of those individuals,including TORRY TAYLOR. 6 43. EBMUD,and DOES 1-50, inclusive,and each of them,acted negligently, 7 carelessly,and recklessly so as to cause the personal injury of TORRY TAYLOR,and to legally 8 cause the injuries and damages described below. 9 44. EBMUD,and DOES 1-50,inclusive,and each of them,knew,or in the exercise of 10 reasonable care should have known,that the conditions constituted a extremely dangerous 11 condition and unreasonable risk of serious injury or death to those who would foreseeably be in the 12 vicinity of the Project or working on the Project,and that the danger would not be apparent to 13 persons such as TORRY TAYLOR. There was a substantial probability that death or serious 14 physical harm could result from the conditions. Under the circumstances of this case involving 15 excavation next to the high-pressure Kinder Pipeline,the conduct of EBMUD,and DOES 1-50, 16 inclusive,and each of them,was an extreme departure from the ordinary standard of conduct and 17 constitutes gross negligence. 18 45. As a direct and legal result of the negligence and/or gross negligence of EBMUD, 19 and DOES 1-50,inclusive, and each of them,TORRY TAYLOR suffered,among other things, 20 personal injury,unjustifiable and substantial physical pain and mental suffering,and severe 21 emotional distress. 22 WHEREFORE,Plaintiffs pray judgment against EBMUD,and DOES 1-50, inclusive,and 23 each of them,as hereinafter set forth. 24 SECOND CAUSE OF ACTION 25 (NEGLIGENCE) 26 AS AGAINST KMEP,SFPP,KMGP,KMI AND DOES 101-150,INCLUSIVE 27 46. Plaintiffs,and each of them,incorporate each and every allegation contained in 28 paragraphs 1 through 45 above,as though fully set forth herein. - 12- COMPLAINT FOR DAMAGES 1 47. At all times relevant herein,KMEP,as a limited partnership,SFPP,a limited 2 partnership and operating partnership of KMEP,KMGP as the general partner of KMEP, and KMI 3 as the parent corporation and owner of KMGP,and DOES 101-150, inclusive,and each of them, 4 were the owners and operators of the Kinder Pipeline. 5 48. Because of the dangerous and ultra-hazardous nature of the Project and the Kinder 6 Pipeline,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline,KMEP, 7 SFPP,KMGP and KMI,and DOES 101-150, inclusive,and each of them,had a nondelegable duty 8 under,among other things,OSHA regulations and California statutes and common law,to own, 9 supervise,control,survey,and operate the Kinder Pipeline in a safe manner to ensure the safety of 10 the public and those working on the Project,including TORRY TAYLOR. 11 49. At all relevant times herein,KMEP,SFPP,KMGP,and KMI, and DOES 101-150, 12 inclusive,and each of them,breached said nondelegable duty by,among other things: 13 improperly hiring,training,retaining,and supervising its employees,agents, 14 representatives,and independent contractors, including COMFORCE,in the performance of the 15 work on the Kinder Pipeline in relation to the Project,including but not limited to the 16 determination of the location of the Kinder Pipeline before allowing the excavation and work in the 17 area of the EBMUD Pipeline and Kinder Pipeline; 18 • improperly failing to create,obtain and/or analyze the proper utility maps,plans and 19 drawings showing the location of the Kinder Pipeline,prior to allowing the excavation and work in 20 the area of the EBMUD Pipeline and Kinder Pipeline; 21 improperly failing to obtain the proper permits and other authority to allow for work 22 to be completed in the vicinity of the Kinder Pipeline and EBMUD Pipeline; 23 • improperly failing to locate and field mark the location of the Kinder Pipeline prior 24 to the excavation in violation of,among other things,Government Code section 4216.3; 25 • improperly failing to relocate the Kinder Pipeline to a location away from the 26 immediate vicinity of the Project and EBMUD Pipeline; 27 • improperly failing to address the concerns of entities working on the Project or who 28 worked on the project(including among others Modern Continental, EBMUD,and DOES 1-50, - 1 - _ COMPLAINT FOR DAMAGES I and each of-them)regarding.the location of the Kinder Pipeline to the vicinity of the EBMUD 2 Pipeline,and failing to inform Mountain Cascade of these concerns; 3 . improperly entering into a mutual agreement with EBMUD and DOES 1-100 and 4 201-250,and each of them,allowing the use of power-operated or power-driven excavating or 5 boring equipment within the vicinity of the Kinder Pipeline and Project;and 6 • improperly failing to inspect,or failing to inspect as frequently as necessary,the 7 Kinder Pipeline during work on the Project where,through contact with EBMUD and others 8 (including Modern Continental,EBMUD,and DOES I-100,and each of them,)KMEP,SFPP, 9 KMGP and KMI,and DOES 101-150,and each of them,knew or should have known,that the 10 Kinder Pipeline could be damaged by excavation work for the Project. 11 50. The tortious conduct alleged above by KMEP, SFPP, KMGP,KMI,and DOES 101- 12 150,inclusive and each of them,was,among other things,negligent,careless,reckless,and grossly 13 negligent. Among other things, KMEP,SFPP,KMGP,KMI,and DOES 101-150, inclusive,and 14 each of them,was aware of the probable dangerous consequences of its conduct and failed to avoid 15 those consequences,which resulted in the personal injuries of TORRY TAYLOR. 16 51. KMEP,SFPP,KMGP,and KMI,and DOES 101-150,inclusive,and each of them, 17 acted so as to cause the personal injury of TORRY TAYLOR,and to legally cause the injuries and 18 damages described below. 19 52. KMEP,SFPP,KMGP,and KMI,and DOES 101-150, inclusive,and each of them, 20 knew,or in the exercise of reasonable care should have known,that the conditions constituted an 21 extremely dangerous condition and unreasonable risk of serious injury or death to those who would 22 foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline, 23 and that the danger would not be apparent to those persons,such as TORRY TAYLOR. KMEP, 24 SFPP,KMGP,KMI,and DOES 101-150,inclusive,and each of them,failed to avoid these 25 consequences or protect others,including TORRY TAYLOR, from these consequences. Under the 26 circumstances of this case involving excavation next to the high-pressure Kinder Pipeline,the 27 conduct of KMEP,SFPP,KMGP,and KMI,and DOES 101-150,inclusive,and each of them,was 28 an extreme departure from the ordinary standard of conduct. - 14- _ COMPLAINT FOR DAMAGES 1 53. As a direct and legal result of the alleged conduct of KMEP, SFPP, KMGP,and 2 KMI,and DOES 101-150, inclusive,and each of them,TORRY TAYLOR suffered,among other 3 things,personal injury,unjustifiable and substantial physical pain and mental suffering,and severe 4 emotional distress. 5 WHEREFORE,PIaintiffs pray judgment against KMEP,SFPP,KMGP,and KMI,and 6 DOES 101-150,inclusive,and each of them,as hereinafter set forth. 7 THIRD CAUSE OF ACTION 8 (NEGLIGENCE) 9 AS AGAINST COMFORCE AND DOES 101-150,INCLUSIVE 10 54. Plaintiffs,and each of them, incorporate each and every allegation contained in 11 paragraphs 1 through 53 above,as though fully set forth herein. 12 55. Because of the dangerous and ultrahazardous nature of the Project and the Kinder 13 Pipeline,and the location of the Kinder Pipeline in the vicinity of the EBMUD Pipeline, 14 COMFORCE,and DOES 101-150,inclusive,and each of them,had a nondelegable duty under, 15 among other things,OSHA regulations and California statutes and common law,to own,supervise, 16 control,survey,and operate the Kinder Pipeline in a safe manner to ensure the safety of the public 17 and those working on the Project,including TORRY TAYLOR. 18 56. As a direct and legal result of the alleged conduct of COMFORCE,and DOES 101- 19 150, inclusive,and each of them,TORRY TAYLOR suffered,among other things,personal injury, 20 unjustifiable and substantial physical pain and mental suffering,and severe emotional distress. 21. 57. At all relevant times herein,COMFORCE,and DOES 101-150,inclusive,and each 22 of them,breached said nondelegable duty by,among other things: 23 • negligently and carelessly and recklessly hiring,training,retaining,and supervising 24 its employees,agents,representatives,and independent contractors in the performance of the work 25 on the Kinder Pipeline in relation to the Project,including but not limited to the determination of 26 the location of the Kinder Pipeline before allowing the excavation and work in the area of the 27 EBMUD Pipeline and Kinder Pipeline; 28 . negligently and carelessly and recklessly failing to create,obtain and/or analyze the is- COMPLAINT FOR DAMAGES I proper utility maps,plans and drawings showing the location of the Kinder Pipeline,prior to 2 allowing the excavation and work in the area of the EBMUD Pipeline and Kinder Pipeline; 3 • negligently and carelessly and recklessly failing to obtain the proper permits and 4 other authority to allow for work to be completed in the vicinity of the Kinder Pipeline and 5 EBMUD Pipeline; 6 • negligently and carelessly and recklessly failing to locate and field mark the location 7 of the Kinder Pipeline prior to the excavation in violation of,among other things,Government 8 Code section 4216.3;and 9 • negligently and carelessly and recklessly failing to inspect,or failing to inspect as 10 frequently as necessary,the Kinder Pipeline during work on the Project where,through contact 1 l with EBMUD and others(including Modern Continental Construction,EBMUD,and DOES 1-100, 12 and each of them,)COMFORCE and DOES 101-150,and each of them,knew or should have 13 known,that the Kinder Pipeline could be damaged by excavation work for the Project. 14 58. As a direct and legal result of the alleged conduct of COMFORCE,and DOES 101- 15 150,inclusive,and each of them,TORRY TAYLOR,suffered unjustifiable and substantial 16 physical pain and mental suffering. 17 WHEREFORE,Plaintiffs pray judgment against COMFORCE,and DOES 101-150, 18 inclusive,and each of them,as hereinafter set forth. 19 FOURTH CAUSE OF ACTION 20 (NEGLIGENCE) 21 AS AGAINST CAROLLO AND CDM AND DOES 1-50,INCLUSIVE 22 59. Plaintiffs incorporate each and every allegation contained in paragraphs l through 23 58 above,as though fully set forth herein. 24 60. At all times relevant herein,CAROLLO and CDM,and DOES 1-50, inclusive,and 25 each of them,were engaged in the business of providing consulting,design and related engineering 26 services for the Project.CAROLLO and CDM,and DOES 1-50,inclusive,and each of them, 27 provided their drawings and plans to,among others,EBMUD. 28 61. Because of the dangerous and ultrahazardous nature of the Project,the Kinder - 16- COMPLAINT FOR DAMAGES I Pipeline and contents thereof,and the location of the Kinder Pipeline in the vicinity of the EBMUD 2 Pipeline and the Project,CAROLLO and CDM, and DOES 1-50,inclusive,and each of them,had 3 a nondelegable duty under,among other things, OSHA regulations and California statutes and 4 common law,to plan and design the Project in a safe manner to ensure the safety of the public and 5 those working on the Project,including TORRY TAYLOR. . 6 62. At all relevant times herein,CAROLLO and CDM,and DOES 1-50, inclusive,and 7 each of them,breached said nondelegable duty by,among other things: 8 • improperly preparing and designing the plans and maps for the Project. CAROLLO 9 and CDM,and DOES 51-50,inclusive,and each of them,were aware of the incursion of the 10 Kinder Pipeline into the Project's path,as evidenced by their drawings; 11 • improperly failing to evaluate the need for re-design of the Project at the time they, 12 and each of them,became aware of and discovered the proximity of the Kinder Pipeline to the 13 proposed EBMUD pipeline,and the incursion of the Kinder Pipeline into the Project; 14 improperly failing to address missing data or request additional data after reviewing 15 the pot-holing data derived from field data in the vicinity of station 100+15; 16 • with respect to CDM,and DOES 1-50,and each of them,improperly entering into a 17 subcontract with CAROLLO regarding the portion of the Project at issue in this lawsuit;and 18 • with respect to CDM and DOES 1-50,and each of them, improperly supervising 19 CAROLLO regarding its work on the portion of the Project at issue in this lawsuit. 20 63. The tortious conduct alleged above by CAROLLO and CDM,and DOES 1-50, 21 inclusive and each of them,was,among other things,negligent,careless,reckless,and grossly 22 negligent. Among other things,CAROLLO and CDM,and DOES 1-50,inclusive,and each of 23 them,was aware of the probable dangerous consequences of its conduct and failed to avoid those 24 consequences,which resulted the personal injury,unjustifiable and substantial physical pain and 25 mental suffering,and severe emotional distress of TORRY TAYLOR. 26 64. CAROLLO and CDM,and DOES 1-50, inclusive,and each of them,acted so as to 27 cause the personal injury of TORRY TAYLOR,and to legally cause the injuries and damages 28 described below. 17- COMPLAINT FOR DAMAGES 1 65. CAROLLO and CDM, and DOES 1-50,inclusive, and each of them,knew,or in the 2 exercise of reasonable care should have known,that the conditions constituted an extremely 3 dangerous condition and unreasonable risk of serious injury or death to those who would 4 foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or EBMUD Pipeline, 0 5 and that the danger would not be apparent to those persons,such as TORRY TAYLOR. 6 CAROLLO and CDM,and DOES 1-50,inclusive,and each of them,failed to avoid these 7 consequences or protect others,including TORRY TAYLOR,from these consequences. Under the 8 circumstances of this case involving excavation next to the high-pressure Kinder.Pipeline,the 9 conduct of CAROLLO and CDM,and DOES 1-50,inclusive,and each of them,was an extreme 10 departure from the ordinary standard of conduct. 11 66. As a direct and legal result of the alleged conduct of CAROLLO and CDM,and 12 DOES 1-50, inclusive, and each of them,TORRY TAYLOR suffered,among other things, 13 personal injury,unjustifiable and substantial physical pain and mental suffering,and severe 14 emotional distress. 15 WHEREFORE,Plaintiffs pray judgment against CAROLLO and CDM,and DOES 1-50, 16 inclusive,and each of them,as hereinafter set forth. 17 FIFTH CAUSE OF ACTION 18 (STRICT LIABILITY FOR ULTRA-HAZARDOUS ACTIVITY) 19 AS AGAINST KMEP,SFPP,KMGP,KMI,COMFORCE AND DOES 101-150, 20 INCLUSIVE 21 67. Plaintiffs,and each of them,incorporate each and every allegation contained in 22 paragraphs 1 through 66 above,as though fully set forth herein. 23 68. KMEP, SFPP,KMGP,KMI,and COMFORCE and DOES 101-150,inclusive,and 24 each of them,designed,manufactured,sold,owned,controlled,operated,maintained,inspected, 23 distributed,transported,located, field marked,monitored,and managed the Kinder Pipeline and 26 ultra-hazardous and flammable material contained therein. 27 69. Such activities create the existence of a high degree of risk of harm to persons, land 28 and personal property of others,create the likelihood that harm that results from it will be great, - 18- COMPLAINT FOR DAMAGES I and are inappropriate to the surrounding of residential neighborhoods,schools and highly- 2 populated communities where it was carried on,such that their value to such communities is 3 outweighed by their dangerous attributes. 4 70. Because of the dangerous and ultrahazardous nature and condition of the Kinder 5 Pipeline and contents contained therein,and the location of the Kinder Pipeline in the vicinity of 6 the EBMUD Pipeline and Project, KMEP,SFPP,KMGP,KMI,and COMFORCE and DOES 101- 7 150, inclusive, and each of them,had a nondelegable duty to own,supervise,control,operate, 8 manage, locate,field mark,monitor,and inspect the Kinder Pipeline accurately and in a safe 9 manner to ensure the safety of the public and those working on the Project,including TORRY 10 TAYLOR. I l 71. As set forth above,TORRY TAYLOR sustained injuries while working on the 12" Project and EBMUD Pipeline. The activities of KMEP,SFPP,KMGP,KMI,and COMFORCE, 13 and DOES 101-150,and each of them,were a substantial factor in causing injury to TORRY 14 TAYLOR. The harm to TORRY TAYLOR, was of the kind that would be anticipated as a result 15 of the risk created by owning,supervising,controlling,operating,managing, locating,field 16 marking, monitoring,and inspecting the Kinder Pipeline through a residential neighborhood,near a 17 school and through a highly-populated community.. 18 72. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 10I-150, inclusive,and 19 each of them,caused the personal injury of TORRY TAYLOR,and legally caused the injuries and 20 damages described below. 21 73. As a direct and legal result of the dangerous and ultra-hazardous conditions 22 designed,manufactured,sold,owned,controlled,operated,maintained, inspected,distributed, 23 transported ,located,field marked,monitored,and managed by KMEP,SFPP,KMGP,KMI,and 24 COMFORCE,and DOES 101-150,inclusive,and each of them,TORRY TAYLOR suffered, 25 among other things,personal injury,unjustifiable and substantial physical pain and mental 26 suffering,and severe emotional distress. 27 74. The above-alleged acts of KMEP,SFPP,KMGP,KMI,and COMFORCE,and 28 DOES 101-150,inclusive,and each of them,were willful,wanton,malicious,despicable, _ - 19- COMPLAINT FOR DAMAGES I oppressive,and/or fraudulent,and justify an award of punitive damages. At all times mentioned 2 herein,KMEP, SFPP,KMGP,KMI,and COMFORCE,its employees, agents,representatives, 3 independent contractors, and DOES 101-150, inclusive,and each of them were guilty of malice, 4 oppression,fraud, and/or a willful and conscious disregard for the rights of TORRY TAYLOR. 5 Given the dangerous and ultrahazardous nature of the work performed on the Project,the Kinder 6 Pipeline,and the close proximity of the Kinder Pipeline to the EBMUD Pipeline,KMEP,SFPP, 7 KMGP, KMI,and COMFORCE,their agents,employees,independent contractors,representatives, 8 and DOES 101-150,inclusive,and each of them,performed work on the Project with a reckless 9 indifference and willful and conscious disregard for the rights of TORRY TAYLOR. 10 75. Plaintiff is entitled to punitive damages against KMEP,SFPP,KMGP,KMI;and 1 I COMFORCE,and DOES 101-150,inclusive,and each of them,as corporate defendants because 12 an officer,director or managing agent thereof had advance knowledge of the unfitness of its 13 employees and employed or retained them with a conscious disregard of the rights or safety of 14 others,authorized or ratified the wrongful conduct of its agents,employees, representatives, 15 independent contractors who were acting as an officer,director or managing agent of KMEP, 16 SFPP,KMGP,KMI,and COMFORCE,and DOES 101-150,and each of them,and which officer, 17 director or managing agent was personally guilty of oppression,fraud and/or malice. 18 WHEREFORE,Plaintiffs pray judgment against KMEP; SFPP,KMGP,KMT,and 19 COMFORCE,and DOES 101-150,inclusive, and each of them,as hereinafter set forth.. 20 SIXTH CAUSE OF ACTION 21 (WILLFUL MISCONDUCT) 22 AGAINST KMEP,SFPP,KMGP,KMI,COMFORCE AND DOES 51-150, INCLUSIVE 23 76. Plaintiffs,and each of them,incorporate each and every allegation contained in 24 paragraphs 1 through 75 above,as though fully set forth herein. 25 77. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150, and each of 26 them,knew that construction workers were excavating a trench in connection with the Project, in 27 accordance with the written contract between EBMUD and Mountain Cascade. KMEP,SFPP, 28 . KMGP,KMI,and COMFORCE,and DOES 51-150,and each of them,knew that the route of the -20- COMPLAINT FOR DAMAGES I EBMUD Pipeline was to be parallel to,east of and above the Kinder Pipeline, which was owned 2 and operated by KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of 3 them. 4 78. KMEP,SFPP,KMGP,KMI,and COMFORCE, and DOES 51-150, and each of 5 them,were the operators or owners of a subsurface installation within the meaning of Government 6 Code section 4216. 7 79. KMEP,SFPP,KMGP,K.MI,.and COMFORCE,and DOES 51-150,and each of 8 them,knew that EBMUD's contract with Mountain Cascade,and each of them,required 9 compliance with all applicable statutes,laws,regulations,orders and standards. 10 80. KMEP, SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150, and each of 11 them,knew that to guard against extreme risk of injury to persons and property,including those 12 working on the Project such as TORRY TAYLOR,the contract between EBMUD and Mountain 13 Cascade,specified,among other things,that work along South Broadway in Walnut Creek, 14 California was adjacent to the Kinder Pipeline,that construction activities should be coordinated 15 with,among others,Larry Hosler,manager pipeline maintenance and Roy Bridge,manager 16 pipeline safety,for KMEP, SFPP,KMGP,KMI,and DOES 51-150. 17 81. KMEP,SFPP,KMGP,KMI, and COMFORCE,and DOES 51-150,and each of 18 them,knew that the Kinder Pipeline had to be properly located in advance of excavation to avoid 19 any physical contact with the Kinder Pipeline as a result of any construction activities. 20 82. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of 21 them,were aware of their respective responsibilities under,among other things,the Government 22 Code and Code of Regulations to properly plan and design the Project and determine the location 23 of and properly field mark the Kinder Pipeline to allow for safe excavation in the vicinity thereof. 24 83. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of 25 them,knew that operating, locating,field marking,and excavating in the vicinity of the Kinder 26 Pipeline created the existence of a special,high degree of risk of harm to persons and property. 27 KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of them,knew that 28 Matamoros Pipeline, Inc.,and its employees,were using welding instruments to weld the EBMUD -21 - COMPLAINT FOR DAMAGES I Pipeline,which considerably increased the extreme risk of harm due to highly flammable nature of 2 the contents of the Kinder Pipeline. 3 84. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of 4 them,knew that those working on the Project,including TORRY TAYLOR,would rely on,among 5 others, KMEP, SFPP,KMGP,KMI,and COMFORCE, and DOES 51-150,and each of them, for 6 their safety to properly design,plan,locate, field mark,and excavate in the vicinity of the Kinder 7 Pipeline in compliance with state laws,statutes,orders,and regulations. 8 85. KMEP, SFPP,KMGP,KMI,and DOES 51-150,and each.of them,has experienced 9 several accidents relating to its pipelines, including but not limited to those incidents referenced in 10 the General Allegations set forth above. KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each I 1 of them,have experienced at least 44 accidents relating to its pipelines since January 1,2003. Of 12 these 44 accidents,at least 14 resulted in releases of more than five barrels of refined petroleum 13 products into the surrounding environment. At least 8 known accidents resulting in releases into 14 the surrounding environment have occurred since April 27,2004. All 8 of these accidents occurred 15 in or near high consequence areas(as defined in 49 C.F.R. section 195.450)and/or major. 16 transportation corridors. Of these 8 accidents,5 are attributed to outside force damage(e.g. third 17 party damage caused by an excavator or other source,damage caused during construction, etc.) At 18 least 3 of these 5 instances went unaddressed by KMEP,SFPP,KMGP,KMI,and DOES 51-150, 19 and each of them, for an indeterminate period despite internal inspection tool runs conducted on the 20 pipelines prior to the accidents. Approximately 50%of reported hazardous liquid pipeline 21 accidents suffered by KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of them,between 22 1998 and 2003 were caused by outside forces. 23 86. According to the United States Department of Transportation's"Pipeline and 24 Hazardous Materials Safety Administration,"the recent accidents of KMEP,SFPP,KMGP,KMI, 25 and DOES 51-150,and each of them,indicate a"widespread failure to adequately detect and 26 address the effects of outside force damage and corrosion. This failure has systematically affected 27 the integrity of the Pacific Operations Unit." This pattern and practice of KMEP;SFPP,KMGP, 28 KMI,and DOES 51-150,and each of them,is one to put profits over people, in that KMEP,SFPP, -22- COMPLAINT FOR DAMAGES I KMGP,KMI,and DOES 51-150,and each of them,believe that few adverse consequences will 2 result from its failures to avoid accidents involving the pipelines. This systematic failure flows 3 from the top on down through the corporate levels of KMEP,SFPP,KMGP,KMI,and DOES 51- 4 150,and each of them,and includes those decision making individuals including the officers, 5 directors and managing agents of KMEP,SFPP,KMGP,KMI,and DOES 51-150,and each of 6 them. 7 87. KMEP,SFPP, KMGP,KMI,and COMFORCE,and DOES 51-150,and each of 8 them,knew that the initial contract with EBMUD was awarded to Modern Continental, which 9 contract was terminated by EBMUD. KMEP,SFPP,KMGP,KMI, and COMFORCE,and DOES 10 51-150,and each of them,knew that in or about 2003 or 2004,Modern Continental was excavating 11 for the EBMUD Pipeline and determined that a segment of the Kinder Pipeline was approximately 12 13 feet from where it had been field marked by KMEP,SFPP,KMGP,KMI,and DOES 101-150, 13 and each of them. Modern Continental expressed this concern to,among others,EBMUD,KMEP, 14 SFPP,KMGP,KMI,COMFORCE,and DOES 1-50 and 101-150,and each of them. In addition, 15 in or about August of 2003,EBMUD requested that KMEP,SFPP,KMGP,KMI,and DOES 101- 16 150,and each of them,relocate a section of the Kinder Pipeline because it was,among other 17 things,hard to locate and a hindrance to completion of the Project. In or about early 2004,Modern . 18 Continental,EBMUD,and DOES 1-50,and each of them,were extremely concerned about the 19 location of the Kinder Pipeline because it was still in the way of the excavation for the EBMUD 20 Pipeline and Project. Among others,Modem Continental,EBMUD, KMEP,SFPP,KMGP,KMI, 21 and DOES I-I50,and each of them,discussed in early 2003 the location of the Kinder Pipeline and 22 how to continue working on the Project despite the location of the Kinder Pipeline. 23 88. Because of the construction work in the direct vicinity of the high pressure Kinder 24 Pipeline,KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-I50,and each of them, 25 knew that they had to guard against the extreme risk of injury to persons and/or property in the 26 area,including those persons working on the Project along with the general public. KMEP,SFPP, 27 KMGP,KMI,and COMFORCE,and DOES 51-150,and each of them,knew that construction 28 activities were to be coordinated with all parties participating in the Project. -23- COMPLAINT FOR DAMAGES 1 89. KMEP,SFPP,KMGP,KMT,and COMFORCE,and DOES 51-150, and each of 2 them,knew of the peril of an explosion if the flammable liquids or gasses inside the Kinder 3 Pipeline escaped in the vicinity of the construction of the EBMUD Pipeline where workers worked 4 with welding tools. KMEP, SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each 5 of them,knew that injury to workers,such as TORRY TAYLOR,was a probable,as opposed to 6 possible,result of that danger. 7 90. At all relevant times herein,KMEP,SFPP,KMGP,KMI,and COMFORCE, and 8 DOES 51-150,and each of them,intentionally,knowingly,deliberately,and/or consciously failed 9 to avoid the above-referenced peril by,among other things: 10 • failing to train and supervise its employees,representatives, agents and independent I 1 contractors with respect to the performance of the work on the Project. For example,employees 12 lacked the experience and knowledge to read the maps and drawings showing the location of the 13 Kinder Pipeline,and in fact,failed to even review such maps and drawings. KMEP,SFPP,KMGP, 14 KMI,and COMFORCE,and DOES 51-150,andeach of them,failed to train and supervise its 1.5 employees,representatives,agents and independent contractors with respect to the importance of 16 reviewing and analyzing the necessary maps and drawings to determine the accurate location of the 17 Kinder Pipeline,and how to review and analyze such drawings and maps; 18 . failing to correctly determine the location of the Kinder Pipeline before allowing 19 excavation in the area of the EBMUD Pipeline and Kinder Pipeline,pursuant to,among other 20 things,Government Code section 4216.4. Among others,Mike Biggs,Peter Brooks,and Mark 21 Presley failed to review and analyze the maps and drawings,and instead relied on their visual 22 observation that there was no tree in the area of the Kinder Pipeline. In fact,the tree had been 23 removed years prior but the roots still existed and the offset of the Kinder Pipeline was present; 24 • failing to create,obtain and/or analyze the proper utility maps,plans and drawings 25 showing the location of the Kinder Pipeline,prior to allowing the excavation and work in the area 26 of the EBMUD Pipeline and Kinder Pipeline; 27 • failing to relocate the Kinder Pipeline to a location away from the immediate 28 vicinity of the Project and EBMUD Pipeline after concerns were previously brought forth by, -24- COMPLAINT FOR DAMAGES I among others,EBMUD and Modern Continental regarding the location of the Kinder Pipeline to 2 the EBMUD Pipeline and Project. 3 0 failing to address the concerns of entities working on the Project or who worked on 4 the project(including,among others,Modern Continental,EBMUD,and DOES 1-50,and each of 5 them)regarding the location of the Kinder Pipeline to the vicinity of the EBMUD Pipeline,and 6 failing to inform Mountain Cascade of these concerns; 7 . falsely representing to Mountain Cascade,EBMUD and others the location of the 8 Kinder Pipeline,such that Mike Biggs,Mark Presley and Peter Brooks stated to EBMUD, 9 Mountain Cascade,and others that the field marking was accurate,that excavators need only 10 follow the field marking devices to avoid conflict with the Kinder Pipeline and that additional I 1 locating and monitoring was unnecessary. The Kinder Pipeline was not located where KMEP, 12 SFPP,KMGP,KMI,and DOES 51-150,and each of them,represented it to be. Further,KMEP, 13 SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each of them, failed to locate and 14 field mark the location which may be affected by the excavation to the extent and degree of 15 accuracy that the information was available either in their own records or through standard locating 16 techniques other than excavation. In fact,Mark Presley admitted that he often did not even use 17 drawings or maps,as he found them to be inaccurate. Mr.Presley stated that the Kinder Pipeline 18 only bent around tree roots,and since he saw no tree,the Kinder Pipeline did not deviate from a 19 straight path;and 20 falsely representing to Mountain Cascade,EBMUD and others that they employed 21 properly trained and supervised personnel to locate and field mark the Kinder Pipeline. Among 22 others,both Mike Biggs,Mark Presley and Peter Brooks lacked the skills and experience necessary 23 to accurately read and interpret drawings and maps,and to actually know that the reading of 24 drawings and maps was crucial to locating the Kinder Pipeline. 25 91. The conduct alleged above by KMEP,SFPP,KMGP,KMI,and COMFORCE,and 26 DOES 51-150,inclusive and each of them,was,among other things,despicable conduct being 27 carried on with a willful and conscious disregard of the rights and/or safety of others, including but 28 not limited to TORRY TAYLOR. Among other things,KMEP,SFPP,KMGP,KMI,and -25- COMPLAINT FOR DAMAGES I COMFORCE,and DOES 10 1-150, inclusive,and each of them,was aware of the probable 2 dangerous consequences of its conduct and willfully and deliberately failed to avoid those 3 consequences,which resulted in the personal injuries of TORRY TAYLOR. 4 92. When KMEP, SFPP,KMGP,KMI,and DOES 51-150,and each of them,made the 5 representations as set forth above,they knew them to be false,had no reasonable ground for 6 believing them to be true,and knew that they did not have the knowledge which they professed. 7 93. Although the representations were not made directly to TORRY TAYLOR,KMEP, 8 SFPP,KMGP,KMI,and DOES 51-150,and each of them,made the representations to Mountain 9 Cascade and others with the intent that such representations be relied upon in excavating the 10 EBMUD Pipeline.TORRY TAYLOR,is entitled to protection as he suffered physical injury 11 resulting from Mountain Cascade's and others justifiable reliance on the representations that the 12 Kinder Pipeline was properly marked. As a result,TORRY TAYLOR suffered,among other 13 things,personal injury,unjustifiable and substantial physical pain and mental suffering,and severe I 14 emotional distress. 15 94. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150, inclusive,and 16 each of them,knew,or in the exercise of reasonable care should have known,that the conditions 17 constituted an extremely dangerous condition and unreasonable risk of serious injury or death to 18 those who would foreseeably be in the vicinity of or working on the Project,Kinder Pipeline or 19 EBMUD Pipeline,and that the danger would not be apparent to those persons,such as TORRY 20 TAYLOR. KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,inclusive,and each 21 of them,willfully and deliberately failed to avoid these consequences or protect others, including 22 TORRY TAYLOR, from these consequences. Under the circumstances of this case involving 23 excavation next to the high-pressure Kinder Pipeline,the conduct of KMEP,SFPP, KMGP,KMI, 24 and COMFORCE,and DOES 51-150, inclusive,and each of them,constitutes malice,oppression 25 and/or fraud. 26 95. As a direct and legal result of the alleged conduct of KMEP,SFPP,KMGP,KMI, 27 and COMFORCE,and-DOES 51-150,inclusive,and each of them,TORRY TAYLOR suffered, 28 among other things,personal injury,unjustifiable and substantial physical pain and mental -26- COMPLAINT FOR DAMAGES I suffering,and severe emotional distress. 2 96. The above-alleged acts of KMEP,SFPP,KMGP, KMI,and COMFORCE,and 3 DOES 51-150, inclusive,and each of them,were willful,wanton,malicious, oppressive, 4 despicable,and/or fraudulent,and justify an award of punitive damages. At all times mentioned 5 herein,KMEP,SFPP, KMGP,KMI,and COMFORCE,their employees,agents,representatives, 6 independent contractors, and DOES 51-150,inclusive,and each of them were guilty of malice, 7 oppression,fraud,and/or a willful and conscious disregard for the rights of those working on the 8 EBMUD Pipeline,including TORRY TAYLOR. Given the dangerous and ultra-hazardous nature 9 of the work performed on the Project,the Kinder Pipeline,and the close proximity of the Kinder 10 Pipeline to the EBMUD Pipeline,the false representations and conduct of KMEP,SFPP,KMGP, 1 I KMI,and COMFORCE,and DOES 51-150,and each of them,was despicable,malicious, 12 fraudulent,oppressive,and made with a conscious disregard for the safety of,among others, 13 TORRY TAYLOR, 14 97. PIaintiff is entitled to punitive damages against KMEP,SFPP,KMGP,KMI,and 15 COMFORCE,and DOES 51-150, inclusive,and each of them,as corporate defendants because an 16 officer,director or managing agent thereof had advance knowledge of the unfitness of its 17 employees, agents,representatives,or independent contractors(including but not limited to Mike 18 Biggs,Mark Presley and Peter Brooks)and employed or retained them with a conscious disregard 19 of the rights or safety of others,authorized or ratified the wrongful conduct of its agents, 20 employees, representatives,independent contractors and DOES 51-150,and each of them,who 21 were acting as an officer,director or managing agent of KMEP,SFPP,KMGP,KMI,and .22 COMFORCE,and DOES 5.1-150,and each of them,and which officer,director or managing agent 23 was personally guilty of oppression,fraud and/or malice. Among other things,an officer,director 24 or managing agent of KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-150,and each 25 of them,ratified the conduct of its employees,agents,representatives or independent contractors by 26 continuing to employ them,failing to criticize,censure,reprimand,terminate,suspend or take other 27 remedial action against them,issuing press releases,interfering with attempts of the regulatory 28 agencies including Cal-OSHA to interview them,and providing them with legal counsel so as to -27- COMPLAINT FOR DAMAGES I defend their conduct. Furthermore,a vice-president of operations and engineering of KMEP, 2 SFPP,KMGP,KMI,and DOES 51-150, inclusive,falsely stated in questions following the 3 incident that"the workers had been provided maps and should have been aware of the fuel 4 pipeline's location." The press release issued by KMEP, SFPP,KMGP,KMI,and DOES 51-150, 5 inclusive,dated November 10,2004 stated that defendants"do not expect this incident will have 6 significant adverse financial impact,"nor did it appear the incident"will require major 7 environmental clean-up." 8 98. Despite full knowledge of the consistent pattern and practice of conduct by its 9 employees,agents,representatives or independent contractors which led to regularly occurring 10 pipeline accidents,and despite full awareness of all dangers to human life and property associated 11 with pipeline incidents,KMEP,SFPP,KMGP,KMI,and COMFORCE,and DOES 51-I50, 12 inclusive, intentionally,deliberately and/or consciously failed to improve,update,revise,or change 13 its ineffective safety policies and practices,training of employees,and communication within the. 14 ranks of the corporation,which led directly to its prior incidents and the incident involving 15 TORRY TAYLOR. 16 99. The above-described conduct of KMEP,SFPP,KMGP,KMI, and COMFORCE, 17 and DOES 51-150,inclusive,which includes intentional and conscious disregard of safety 18 standards and acting in a manner calculated to stonewall and/or deceive regulatory authorities for 19 their own financial benefit was despicable and carried on with a willful and conscious disregard for 20 the rights and safety of others,including TORRY TAYLOR. 21 WHEREFORE,Plaintiffs pray judgment against KMEP,SFPP,KMGP,KMI,and 22 COMFORCE,and DOES 51-150,inclusive,and each of them,as hereinafter set forth. 23 SEVENTH CAUSE OF ACTION 24 (LOSS OF CONSORTIUM) 25 Plaintiff YVETTE GASCA-TAYLOR,complains of defendants,and each of them,and for 26 a Eighth Cause of Action,alleges: 27 100. Plaintiff YVETTE GASCA-TAYLOR realleges and incorporates herein by 28 reference each and every allegation contained in paragraphs one through 122 as though fully set -28- COMPLAINT 28COMPLAINT FOR DAMAGES I forth. 2 101. Plaintiff YVETTE GASCA-TAYLOR is,and at all times herein mentioned was,the 3 lawful wife of plaintiff TORRY TAYLOR. 4 102. As a direct and proximate of the aforesaid conduct of the defendants,and each of 5 them,plaintiff YVETTE GASCA-TAYLOR has suffered loss of support,services, love, 6 companionship,affection,society and other elements of consortium,all to her general damage in 7 an amount in excess of the jurisdictional minimum of this Court. 8 WHEREFORE plaintiffs pray judgment against defendants,and each of them,as 9 hereinafter set forth: 10 1. For general damages according to proof, in excess of the jurisdictional minimum of I 1 this Court; 12 2. For damages for medical and related expenses,according to proof; 13 3. For damages for loss of earnings and earning capacity,according to proof; 14 4. For punitive damages against defendants KMEP, SFPP,KMGP,KMI,and 15 COMFORCE,and DOES 101-150,inclusive,and each of them; 16 4. For interest on all damages,as permitted by law; 17 5. For plaintiffs'costs of suit incurred herein;and 18 6. For such other and further relief as this Court deems just and proper. 19 20 DATED: November 9,2005 HINTO ERT&SUMNER 21 ': 1 1 By: ( ;� 22 - PETE W.ALFERT 23 Attorneys for Plainti s 24 25 26 27 28 . -29- COMPLAINT FOR DAMAGES i � OCT-24-2005(MON) 14:30 KARPEL LAW FIRM (FAX)818 461 1909 P.003/016 1 1'MV OFFICES OF JEPTREY E.KARPEL Jeffr )r.Karpel Lasqq. (SBN:42286) Ir 2 4515 Shmmzn Oaks Avemue 5 Sherman Oaks CA 91403 5 •i<D s Telephone: �8%461-1919 .U;,��•`cl"' OCTFamiimile: 9461-1909 �", 6. 005 4 � . 5 Attorney for Plaintiff United Sei ccs Automobile As MR File Number:241105 5 7 SUPERIOR,COURT OF TSE STATE OF CALIFORNIA, 8 COUNTY OF CONTRA COSTA,MARTINEZ DISTRICT 9 30��A'JON3 J��s 10 11 NITED SERVICES AUTOMOBILE CASE NO `c�; Q 5 - 0212 8 , ASSOCIATION, 12 Plaintiff, 13 vs. SUBROGATION COMPLAINT to FOR PROPERTY DAMAGE EAST BAY MUNICIPAL UTILITIES 1S TRF a c�ovemment entity; (1)Negligence MO,UNAIN CASCADE 1NC. a 16 California co oration - i'C!N DSR (2)Strict Liability MORGAN EI��RGY P'ARIERS, LIQ,a w California Limited Llabil" 444401x�pp11 P)ROS 1psa Loquitur SFPP, LP, a California meted tiabljity 1s Compaqyy,, KiNDE� ORGAN G.P., (4)Negligence Per So INC. - NDER MOR�AV. INC.' . 19 MAT' MOROS P PELT In A Unlimited Civil Jurisdiction Califam a corporation; 0 LO 20 ENGINEERS a professional corporation Arnount of Damages Exceed which will do baseness in California s $25,000.00 21 CAROLLO ENGINEERS and DOE 1 through 100, Inclusive, Claimed Amount-$1,750,000.00 2 Defendant(s). 23 24 JURISDICTION.VENUE AND_PARTIES 25 1. The claims herein are asserted pursuant to CCP 410.10 and the jurisdiction of this 26 Court Is invoked pursuant to California Code of Civil Procedure,sections 894 and 395. The 27 acts that give rise to this suit occurred In Contra Costa County,State of California. 28 2. Plaintiff, UNITED SERVICES AUTOMOBILE ASSOCIATION, is an Insurance COMPLAIN' 3530SCAN-05X1 000.max OCT-24-2005(MON) 14430 KARPEL LAW FIRM (FAX)818 461 1909 P.004/016 1 company qualified to do business In the State of California. 2 3. PlalntiTs insured, ENOS CHABOT,is an Individual and a resident of the County 3 of Contra Costa,State of Caiifomia. He owns the home insured by plaintiff United Services 4 Automobile Association,the damage done to which is the subject of this IawsulL 5 4. Defendant FAST BAY MUNICIPAL UTILITIES DISTRICT(hereinafter"E13MUl]")Is. 6 and at all times'herein mentioned was,a publicly owned utility formed under the Municipal 7 District Ad passed by the California Legislature in 1921. EBMUD maintains-its administrative 8 and headquarters offices and is situated in the City of Oaldand,County of Alameda,State of 9 California. On or about April 7, 2005, plaintiff presented its claims to EBMUD pursuant to 10 Government Code section 910. On or about April 14,2005 EBMUD rejected the claim in its 11 entlrety. 12 5. Defendant.MOUNTAIN CASCADE.INC.,is,and atalltimes herein mentionedwas, 13 a corporation organized and wdstirng under the laws of the State of California and qualified to 14 conduct business in California with its registered principal place of business in the City of 15 1 Livermore in Alameda Cbunty. 16 S. Defendant, MATAMOROS PIPELINE,INC.,is,and at all times herein mentioned 17 was, a corporation organized and existing under the laws of the State of California and 18 qualified to conduct business In California with its registered principal place of business in the 19 City of Oakley in Contra Costa County. Defendant Mountain Cascade,Inc.subcontracted with 20 Matamoros Pipeline, Ina to, among other things,weld together segments of the EBMUD 21 Pipeline. 22 7. Defendant.CAROLLO ENGINEERS PROFESSIONAL CORPORATION WHICH 23 WiLL DO BUSINESS IN CALIFORNIA AS CAROLLO ENGINEERS (hereinafter"Carollo 24 Engineers°), is,and at all times herein mentioned was,a corporation organized and existing 25 under the laws of the State of California qualified to conduct business In California with Its 26 registered principal place of business in the City of Walnut Creek in Contra Costa County. 27 S. Defendant,KINDER MORGAN ENERGY PARTNERS, is,and at all times herein 28 mentioned was,a corporation organized and existing underthe laws of the State of Delaware 2 COMPLAINT i 3530SCAN-0521_OOO.maz ' i OCT-24-2005(MON) 14:30 KARPFI LAW FIRM (FAX)818 461 190,9 P.005/016 I and qualified to conduct business in California with its registered principal place of buslness 2 in the City of Lancaster in KernCounty. 3 9. Defendant, SFPP, L.P., is,and at all times herein mentioned was, a corporation 4 organized and existing under the laws of-the State of Delaware and qualified to conduct 5 business in California with Its registered principal place of business In the City and County of 6 Sacramento. Defendant. SFPP,L.P. Is an operating partnership and subsidiary llmhed 7 partnership of defendant Kinder,Morgan Energy Partners. 8 10. Defendant KINDER MORGAN G.P.,INC.(hereinafter"KMGP°) Is,and atafl times 9 hcrcin mentioned was,a corporation organized and existing under the laws of the State of 10 Delaware and qualified to conduct business In California as,among other things,the general I1 partner of KMEP. KMGP is,among other things,the wholly owned subsidiary of defendant 12 i43NDER MORGAN,INC. 13. 11. Defendant KINDER MORGAN,INC.(hereinafter°KMP7 is,and at all tunes herein 14 mentioned was,a corporation organized and exlsting under the laws of the State of Kansas 15 and qualified to conduct business in California, KMGP is the wholly-owned subsidiaryof KMI. 16 12. Plaintiff Is informed and believes,and thereon alleges,that at all times relevant, 17 there exists,and has existed,a unity of interest and ownership between KMEP,SFPP,KMGP 18 an DKIVIJ,and each of them,such that any individuality and separateness between the entities 19 has ceased to•exist Upon information and bolief,KMEP Isthb alterego of KIv1GP.SFPP and 20 KMI,and each of them. Upon information and beflef.SFPP is the atter ego of KMGP,KMEP 21 and KMI,and each of them. Upon information and belief,KMGP is the alter ego of KMI. 22 13. The true names and capacities,whether Individual,plural,corporate,associate or 23 otherwise of Defendants sued herein as Does i through 100, inclusive, are unknown to 24 Plaintiff whotherefore sues said Defendants by such fictitious names,and Plaintiff will amend 25 this complaint to show the true names and capacities when the same has been ascertained. 26 14. Plaintiff is informed and believes and thereon alleges that at all times herein 27 mentioned, each of the Defendants was the agent, employee, bailee, lessee, licensee, 28 assignee and successor In interest of each of their co-defendants,and was acting within the 3 COMPLAINT 3530SCAN-0521_D00.mex OCT-24-2005(WN) 14:30 KARPEL. LACI FIRM (FAX)818 461 1909 P.006!016 1 scopeand purpose of said agency,service,employment,bailment,lease,license,assignment, 2 and interest and with the consent,permission and knowledge of their co-defendants. 3 4 G xRAL ALLEG TQ IONS 5 15. Plaintiff hereby repeats and realleges paragraphs 1 through 14 of this complaint 6 and makes them a part of the instant cause of action as if fully set forth herein. 7 16. Under the provisions of Section 11580.2 eLseq. of the insurance Code of a Califomle,Plaintiff insurance company has been subrogated to all rights of.the designated 9 insureds against Defendants herein arising out of the subject incident to the full extent of the ].0 payment made under the said policy, that said payments were made upon determination 11 within the meaning of'the policy and Section 11580.2 etseq. of the insurance Code of 12 Caltfomla,further, payments were made after determination that the insureds were legally 13 entitled to recover for property damage from the herein named Defendants on the basis of 14 their negligence. 15 17. Plaintiff's insured policy numbervms 408191.Enos N.Chabot the insured person 16 who claimed under the policy for property damage and Plaintiff Insurance company made 17 payments on said claim in the amount of$1,750,004.00 and herein sues for said amount 1 B 18.EBMUD planned,designed,owned,supervised,controlled and constructed a public 19 works construction project known as the Walnut Creek-San Ramon Valley Improvement 20 Project rprojecrj,which involved the Installation of a water pipeline(OEBMUD Pipeline.'?The 21 routs of the EBMUD Pipeline was to be generally parallel to. east of, and above a high 22 pressure fuel pipeline system located In, among other places, the City of Walnut Creek, 23 County of Contra Costa,State of California('Kinder Pipeline.')The section of the Protect and 24 Kinder Pipelines at issue in 'the complaint were located within downtown Walnut Creek, 25 .Cafornia in the direct vicinity of business entities, a school and residences. 26 19. EBMUD hired, among othem, MOUNTAIN CASCADE, INC..as the general 27 contractor on the Project. and the events in issue occurred during the performance of a 28 contract entered into in the County of Alameda, State of Califomis. Defendant Mountain 4 COMPLAINT 3530SCAN-0521 000_ma t OCT-24-2005(MON) 14:30 KARPEL LAW FIRM (FAX)818 461 1909 P.007/016 I Cascade, Inc. subcontracted with Matamoros Pipeline; inm to, among other things,weld 2 together segments of the EBMUD Plpellnm 3 20. KMEP Is,and at all times relevant herein was,the designer,manufacturer,owner, 4 operator,manager,locator,field marker,monitorand inspectorofa high-pressurefuelpipeltne 5 system located in, among other places,the City of Walnut Creek, County of Contra Costa, 6 state of Califomia("lander Pipeline.*) . 7 21. SFPP, L.C.is,and at all times relevant herein,was,the designer,manufacti/rer,. 8 owner,operator,manager,locator,field marker,monitor and inspector of the ICrnder Pipeline. 9 22. On November 4,2004 defendant Mountain Cascade,Inc.was excavating a trench 10 to install a water supply line for defendant East Bay In the city of Walnut Creek In Contra 11 Costa County. The project was designed by defendant Carollo Engineers. At that time,an 12 backhoe operator under the direct supervision and control of ESMUD, Mountain Cascade, 13 Inc.,KMGP,KMi, and each of them,excavaied the trench in which the EBMUD Pipeline was 14 being installed. 15 23. A buried underground pipeline owned and operated by, among others,KMEP. 16 SFPP,KMGP and KMI,and each of them("Kinder Pipeline")lay immedlately adjacent to the 17 EBMUD pipeline trench. The IGndor Pipeline was at all times an underground utility. 18 transporting flammable material,consisting of gasoline,diesel fuel and/or jet fuel. 19 24. On or about November 9.2004,Mountain Cascade,Inc.so operated the backhoe 20 as to penetrate the Kinder Pipeline,causing the flammable material withlh to escape.Plaintiff 21 Is informed and believes and thereon alleges,thatthe flammable material and byproducts that 22 escapod entered the EBMUD Pipeline where employees of defendant Matamoros Pipelines, 23 inc., which was hired by defendant Mountain Cascade, Inc., were welding. "their welding 24 activities ignited the leaking petroleum which resulted in an explosion and fire which killed fire 25 workers and ultimately set plaintiffs insured's residence on fire. 26 25. Plaintiff is informed and believes and thereon alleges that at the time of the 27 accident the lgcation of the petroleum line was not known to the employees working on the 28 water supply pipeline. Plaintiff is informed and believes and thereon alleges that at the time 5 COMPLAINT 35305CAN-0521 OOO.max i t OCT-24-2005(MON) 14:31 KARPEL. LAIC FIRM (FAX)818 461 190.9 P.008/016 1 of the accident, the location of the high pressure petroleum supply pipeline was known or 2 should have been known to defendants and each of them and that defendants and each of 3 them negligently failed to take action and did commit errors which resulted in the explosion 4 and firm which burned and damaged the insured's residence located at 2053 Doris Avenue, 5 Walnut Creek,Contra Costa'County. ti 7 FIRST CAUSE OP ACTION 8 (Negligence Against All-De -ndanW 9 26. Plaintiff hereby repeats and realleges paragraphs I through 25 of this complaint 10 and makes them apart of the instant cause of action as if fully set forth heroin. 11 27. At all times relevant herein, ESMUD was engaged in the business of p)anning, 12 designing.owning.supervising.controlling and constructing the project 13 28. At all times relevant herein,Mountain Cascade,Inc.was the general contractor or 14 subcontractor hired by EBMUD for the Project and was engaged in the construction. 15 supervision,operation and control of the Project. 16 A. At all times relevant herein,KMEP,as a limited partnership,SFPP,L.C.,a limited 17 partnership and operating partnership of KMEP,KMGP as the general partner of KMEP,and I8 KMI as the parent corporation and owner of KMGP,and each of them,were the owners and 19 operators of the Kinder Pipeline. 20 30. At all times relevant herein, Carollo Engineers.was engaged in the business of 21 planning and designing the project 22. 1 31. Because of tha dangerous and ultra hazardous nature of the Project,the Kinder 23 Pipeline and contents thereof, and the location of the Kinder Pipeline in the vicinity of the 24 EBMUD Pipeline and the project,all defendants and each of them,hada non delegable duty 25 under,among other things,OSHAregulations and California statutes and common lowto plan. 26 design,own,supervise,control,survey and construct the Project in a safe manner to ensure 27. the safety of the public and those working on the Project 29 32. Defendants,and each of them,knew,or in the exercise of reasonable care should s COMPLAINT 3530SCAN•0521 000_max OCT-247-2005(MON) 14:31 KARPEL LAW FIRM (FAX)818 481 1909 P.009/018 I have known, that the conditions constituted an extremely dangerous condition and 2 unreasonable risk of serious injury or death to those who would foreseeably be in the vicinity 3 of the Project or working on the Project,and that the danger would not be apparerntto persons 4 working at the scene. There was a substantial probability that death,serious physical harm 5 and/or extensive property damage could result from the conditions. Under the circumstances G of this case Involving excavation nest to the high-pressure lender Pipeline,the conduct of T defendants, and each of them, was an extreme departure from the ordinary standard of .8 conduct and constitutes gross negligence: 9 33. Plaintiff is informed and believes that as a direct and praidmate result of the . 10 negligence of the Defendants,and each ofthem,as aforesaid.the Insured's residencelorated Il at 2053 Doris Avenue,Walnut Creek, Contra Cosh County,was burned and damaged in 12 value. 13 34. Prior to the filing of the action, Plaintiff's insured herein assigned its property 14 damage deductibleto Plaintiff to include in its propertydamage claim the insured's deductible. 15 35. By reason of the foregoing aftations,Plaintiff Is entitled to and hereby prays for 16 Judgment for any and all prejudgment interest allowed pursuant to section 3287 and 3330 of 17 the Civil Code of Callfomia,and any and ail other interest allowed by law. 28 • 19 SECOND CAUSE OF-A-ETON 20 {Strict Liabilib(in Tort Against All Defendants] 21 36. Plaintiff hereby repeats and realleges paragraphs 1 through 35 of this complaint 22 and makes theme a part of the instant cause of action as If fully set forth herein. 23 37. Defendants, and each of them, were engaged in the business of planning, 24 designing,awning,supervising,controlling.constructing,supervision.operation,control of the 25 Project and the Kinder Pipeline. 261 38. Such activities create the existence of a high degree of risk of harm to persons. 27 land and personal property of others,create the likelihood that harm that results form itwill be 28 great,and are in appropriate to the surrounding residential neighborhoodswhere itwas carried 7 COMPLAINT 3530SCAN-0521 000-MU ; 3 t OCT-24-2005(MON) 14:31 KARPEL LAW FIRM (FAX)818 461 1909 P.010/016 1 on,such that the value to such neighborhoods is outweighed by their dangerous attributes. 2 39. Because of the dangerous and ultra hazardous nature and condition of the Kinder 3 Pipeline and contents contained therein,and the location of the Kinder Pipeline in the vicinity 4 of the MMUD Pipeline and Project,defendants,and each of them,had a non delegable duty 5 to own,supervise,control,operate,manage,locate,field mark.monitor and inspectthe Kinder 6 Pipeline and EBMUD Pipeline and Project accurately and in a safe manner to Ensure the 7 safety of the public. 9 40. As set forth above;plaintiff's Insured's residence located at 2053 Doris Avenue. 9 Walnut geek. Contra Costa County,was burned and damaged In value. The actNities of 10 defendants, and each of them, were a substantial factor In causing the damage to the 11 insured's residence located at 2053 Doris Avenue,Walnut Creek,Contra Costa County. He 12 harm to plaintiffs insured was of the kind that urauld be anticipated as a result of the risk 13 created by owning, supeMsing, controlling, operating, managing, locating, field marking. 14 monitoring and inspecting the Kinder Pipeline and E.3MUD Pipeline and Project through a iS residential neighborhood. 16 41. Defendants,and each ofthem,caused the property damage to plaintiffs insured's 17 residence,and legally caused the property damage. 18 42 As a direct and legal result of the dangerous and ultra hazardous conditions 19 designed,manufactured,sold,owned,controlled,operated,maintained.Inspected,distributed, 24 transported,located,field marked,monitored and managed by defendants,and each ofthem, 21 -plaintiff's insured's residence located at 2453 Doris Avenue, Walnut Creek, Contra Cosla 22 County,was burned and damaged In value. 23 43. WHEREFORE.plaintiff prays judgment against defendants,and each of them,as 24 hereinafter set forth. 25 26 IMIRD CAUSE OF ACTION (Bps IRsa L,oquila Against All Defendantsl 28 44. Plaintiff hereby repeats and realleges paragraphs 1 through 43 of this complaint e COMPLAiN17 35303CAN-0521-000.max ............. OCT-24-2005(MON) 14:31 KARPEL LAW FIRM (FAX)818 461 1909 P.011/016 1 and makes them a part of the instant cause of action as if fully set forth herein. 2 45. Defendants,and each of them,so carelessly,recklessly and negligently owned, 3 controlled,designed, planned, maintained, managed, inspected, constructed,localad,field 4 marked, monitored and/or operated the Project, the EBMUD Pipeline and/or the Kinder 5 Pipellne as to case the property damage of plaintiffs insured. 0 46. Defendants,and each of them,had exciuslve control,ownership,design,planning, 7 maintenance,management,inspacdon,construction or operation ofthe Project,the EBMUD 8 Pipeline and/or the Kinder Pipeline,and In the ordinary course of things plaintiffs insured's 9 residence located at2063 Doris Avenue,Walnut Creek,Contra Costa County,would nothave 10 been burned and damaged In value if defendants,and each ofthem,had exercised ordinary ll care in the maintenance, operation,ownership, design, planning. inspection, contmi,field 12 marking,constructing,monitoring or management of the Project,thg 1=0MUD Ptpeline and/or 13 the Kinder Pipeline as to case the property damage of plaintiffs insured, 14 47. Because defendants,and each of them, exercised exclusive control,ownership, 15 design, planning, maintenance,.management, Inspection, construction or operation of the 16 Project„the EBMUD Pipeline and/orthe Kinder Pipeline,defendant's and each of them,were 17 in possession of superior.if not exclusive,access to information concerning the location of the 18 Kinder Pipeline and the offset Into the project, The precise cause of the accident and 19 subsequent property damage to plaintiffs insured was not due to any voluntary action or 20 contribution on his part. 21 48. As a direct and legal result of the negligence and/or gross negligence of 22 defendants,and each of them.plaintiff`s insured's residence was burned and damaged. 23 49. WHEREFORE,plaintiff prays judgment against defendants,and each of them,as 24 hereinafter set forth. 25 111 26 N 27 2s Al 9 COMPLAINT ' 3530SCAN•0521 W-max COT-24-2005(MON) 14:31 KARPEL LAW FIRM (FAX)818 481 1909 R 012/016 1 FOURTH CAUSE OF ACTION 2 fNenliaence Pvr Se Against KMEP. EBMUD. Mountain Cascade. Inc., and Corollo 3 Engineers 4 50. Plolnttff hereby repeats and realleges paragraphs 1 through 49 of this complaint 5 and makes them a part of the instant cause of action as if fully set forth herein. 5 51, Plaintiff is informed and believes, and thereon alleges, that defendants KMEP, 7 EBMUD,Mountain Cascade,Inc.and Carolto violated of Cal-OSHA regulations as follows. .9 52 Plaintiff is informed and believes,and thereon alleges,that defendant KMEP was 9 cited for falling to thoroughly survey the work site and assure that the Kinder Pipeline was 10 dearly marked. ji 53. Plaintiff Is Informed and believes, and thereon alleges,that Defendant EBMUD 12 was cited for failing to assure that the work ft was fully surveyed. 13 54. Plaintiff is Informed and believes,and thereon alleges,that defendant Mountain 14 Cascade was cited for allegedly not taking safeguards to prevent the breach of the Kinder i15 Pipeline. 16 55. Plaintiff is informed and believes, and thereon alleges.that:defendant Carollo 17 Engineers was died for failing to note the deviation In the Kinder Pipeline. 18 56. Plaintiff is informed and believes, and thereon alleges,that the above named 19 violation proximately caused plaintiffs insured's residence located at 2053 Doris Avenue, 20 Walnut Creek,Contra Costa County,was burned and damaged In value. 21 57. Plaintiff Is informed and believes,and thereon alleges,that the violations alleged 22 above resulted from an oxplosion and fire that the relevant CaWSHA regulations were. 23 designed to prevent 24 53. Plaintiff is inforrned and believes,and thereon alleges,that piaindffs insured was 25 one of the class of persons for whose protection the relevant Cal-OSHA regulations were 26 adopted, 27 WHEREFORE, Plaintiff prays for judgment against the Defendants and each of them 26 as follows: 10 r COMPLAINT 1 3530SCAN-0521 000.max OCT-24-2005(MON) 14:31 KARPEL LAW FIRM (FAX)818 461 1909 P.013/016 1 1. For property damage in the sum of$1,750,000.00. 2 2. For prejudgment interest allowed pursuant to section 3287 and 3330 of the Civil 3 1 Code of Califomia,and any and all other interest allowed by taw; 4 3. For costs of suit incurred herein;and 5 4..For such other and further relief as this court may deem just and proper. 6 DATED:September 26,2005 7 LAW OFFICES.OF•JEFFREY E.KARPEL 8 9 10 BY: JeM,ey rpe, q., homey r do , 11. United Services Automobile Association 12. 13 14 ' 16 17 18 19 20 21 22 23 24 25 26 27 (�:11VPSAUSAA124t(OSbCaa�laintPraart�pdj . 28 11 COMPLAINT 3530SCAN-0521 DDO.m= Ib r�a��aoaoc�aaa� 1 COOPER, OLIAM WHITE COOPER H. NORMAN N(BN 49942) 2 BARRY R. OGILBY(SBN 118133) 11-03-05 JILL B.ROWE(SBN 197713) 3 VIJAY K.TOKE(SBN 215079) 201 California Street, 17th Floor K.TORRE,CLERK OF THE COURT 4 San Francisco,California 94111 SUPERIOR COURT OF CALIFORNIA Telephone: (415)433-1900 COUNTY OF CONTRA COSTA-MARTINEZ 5 Facsimile: (415)433-5530 BY: S.HARBRECHT,DEPUTY CLERK 6 Attorneys for Defendants Kinder Morgan Energy Partners,L.P.;Kinder Morgan G.P.,Inc.;Kinder 7 Morgan,Inc.; SFPP,LP 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF CONTRA COSTA 11 12 GAS PIPELINE EXPLOSION CASES CASE NO.Judicial Council Coordinated Proceedings No.4433 13 Coordinated Actions: KNOX,et al.v.MOUNTAIN CASCADE,et CROSS-COMPLAINT OF SFPP,L.P., 14 al.(Contra Costa Sup.Ct.Case No.C OS- KINDER MORGAN,INC.,KINDER . 00281);FARLEY v.MOUNTAIN MORGAN G.P.,INC.,and KINDER 15 CASCADE,et al.(Contra Costa Sup. Ct.Case MORGAN ENERGY PARTNERS L.P. No.C 05-01573);REYES,et al.v.EAST AGAINST EAST BAY MUNICIPAL 16 BAY MUNICIPAL UTILITY DISTRICT,et UTILITY DISTRICT,MOUNTAIN al.(Alameda Sup.Ct. Case No.RG-05- CASCADE,INC.,CAROLLO ENGINEERS, 17 207720);ARIAS,et al.v.KINDER CAMP DRESSER&McKEE,INC.,AND MORGAN,et al.(Alameda Sup.Ct. Case No. ROES 1-250 18 RG-05-195567);ANGELES,et al. v. KINDER MORGAN,et al.(Alameda Sup. Ct. Assigned to Hon.Terence L. Bruiniers 19 Case No.RG-05-195680) Dept.: 5 20 SFPP,L.P.,KINDER MORGAN,INC., 21 KINDER MORGAN G.P.,INC.,and KINDER MORGAN ENERGY PARTNERS 22 L.P., 23 Cross-Complainants, 24 V. 25 EAST BAY MUNICIPAL UTILITY DISTRICT,MOUNTAIN CASCADE,INC., 26 CAROLLO ENGINEERS,CAMP DRESSER &McKEE,INC.,AND ROES 1-250, 27 Cross-Defendants. COOPER,WHITE 28 &COOPER LLP ATTORNEYS AT LAW 530371.1 1 20t CALIFORNIA STREET $""FRA C..CA 94111 CROSS-COMPLAINT I Cross-complainants SFPP,L.P.,KINDER MORGAN,INC.,KINDER MORGAN G.P., 2 INC.,and KINDER MORGAN ENERGY PARTNERS L.P.(collectively"SFPP"or"Cross- 3 Complainants")allege as follows: 4 PARTIES AND VENUE 5 1. Cross-complainants are,and at all times mentioned herein were,business entities of 6 various different types,qualified and doing business in the State of California. 7 2. Cross-Complainant SFPP,L.P. is a named defendant in some or all of the actions 8 listed on Exhibit A. (The actions listed on Exhibit A are hereafter identified as the"Explosion 9 Lawsuits.") 10 3. Cross-Complainant Kinder Morgan,Inc. is a named defendant in some or all of the 11 actions listed on Exhibit A. 12 4. Cross-Complainant Kinder Morgan G.P.,Inc. is a named defendant in some or all 13 of the actions listed on Exhibit A. 14 5. Cross-Complainant Kinder Morgan Energy Partners L.P. is a named defendant in 15 some or all of the actions listed on Exhibit A. 16 6. Cross-Defendant EAST BAY MUNICIPAL UTILITY DISTRICT("EBMUD")is 17 and at all times herein was,a publicly owned utility formed under the Municipal District Act 18 passed by the California Legislature in 1921. EBMUD maintains its administrative and head 19 offices and is situated in the City of Oakland,California. EBMUD planned,designed,owned, 20 supervised,controlled,and constructed a public works construction project known as the Walnut 21 Creek-San Ramon Valley Improvement Project("Project")which involved the installation of a 22 water pipe line("EBMUD Pipeline.") The EBMUD Pipeline was to be generally parallel to,east 23 of and above a high-pressure fuel pipeline system located in,among other places,the City of 24 Walnut Creek,County of Contra Costa,California("SFPP Pipeline"). The section of the Project 25 and SFPP Pipeline at issue in this cross-complaint was located in Walnut Creek,California. 26 7. Cross-Defendant MOUNTAIN CASCADE INCORPORATED("MOUNTAIN 27 CASCADE")is,and at all times mentioned herein was,a corporation duly organized and existing 28 under the laws of the State of California. MOUNTAIN CASCADE is a pipeline contractor and COOPER,WHITE 530371.1 &COOPER LLP 2 AC"ORF ASTRE CROSS-COMPLAINT 20I RAWJSW.CA 4 SW FgA"[J$Cp,G91111 I maintains its headquarters in the City of Livermore,County of Alameda,California. EBMUD 2 hired,among others,MOUNTAIN CASCADE as the general contractor on the Project,and the 3 events in issue occurred during the performance of the contract entered into in the County of 4 Alameda,California. 5 8. Cross-Defendant CAMP DRESSER&MCKEE,INC.("CDM")is, and at all times 6 mentioned herein was,a corporation duly organized and existing under the laws of the State of 7 Massachusetts,and qualified and doing business in the State of California. CDM entered into a 8 contract with,among others,EBMUD to design the Project. CDM then entered into a subcontract 9 with Cross-Defendant CAROLLO ENGINEERS to design a portion of the Project at issue in this 10 lawsuit. Plaintiffs in the Arias,Angeles, and Im actions identified on Exhibit A have filed a 11 certificate of merit pursuant California Code of Civil Procedure section 411.35(b)(1). In addition, 12 Cross-Complainants are filing contemporaneously herewith a certificate pursuant to California 13 Code of Civil Procedure section 411.35(b)(2). Cross-Complainants will file a certificate pursuant 14 to California Code of Civil Procedure section 411.35(b)(1)within sixty days after filing this 15 complaint. 16 9. Cross-Defendant CAROLLO ENGINEERS ("CAROLLO")is,and.at all times 17 mentioned herein was,a professional corporation duly organized and existing under the laws of 18 the State of Arizona,and qualified and doing business in the State of California. CAROLLO 19 entered into a subcontract agreement with CDM to design the Project,the portion of which is at 20 issue in this lawsuit. Plaintiffs in the Arias,Angeles, and Im actions identified on Exhibit A have 21 filed a certificate of merit pursuant California Code of Civil Procedure section 411.35(b)(1). In 22 addition,Cross-Complainants are filing contemporaneously herewith a certificate pursuant to 23 California Code of Civil Procedure section 411.35(b)(2). Cross-Complainants will file a 24 certificate pursuant to California Code of Civil Procedure section 411.35(b)(1)within sixty days 25 after filing this complaint. 26 10. Cross-Complainants,and all of them,are ignorant of the true names and/or - . 27 capacities of the Cross-Defendants sued herein as ROES 1-250, inclusive,and therefore sue these 28 Cross-Defendants by such fictitious names. Cross-Complainants will amend this Cross-Complaint COOPER,WHRE 530371.1 &COOPER LLP 3 ATTORNEYSATLAW CROSS-COMPLAINT I01 OILWORMA STREET SAN F RANCISCO.CA 9/111 1 to allege their true names and capacities when ascertained. Cross-complainants are informed and 2 believe,and on that basis allege,that each of said fictitiously named Cross-Defendants is 3 responsible in some manner for the occurrences and/or breaches herein alleged and/or otherwise 4 expressly contractually or equitably obligated to indemnify Cross-Complainants for the 5 occurrences herein alleged,in that Cross-Complainants'damages as herein alleged were 6 proximately caused by those Cross-Defendants. Each reference in this Cross-Complaint to 7 "Cross-Defendant,"Cross-Defendants,"or a specifically named Cross-Defendant refers also to all 8 Cross-Defendants sued under fictitious names. 9 FACTUAL ALLEGATIONS 10 11. SFPP is informed and believes,and thereon alleges,that MOUNTAIN CASCADE 11 was retained by EBMUD to work on the Project. SFPP is further informed and believes,and 12 thereon alleges,that the Project was to run in close proximity to and conflict with the SFPP 13 Pipeline at certain locations,and in some locations was to cross the SFPP Pipeline. 14 12. EBMUD entered into a"Pipeline Inspection Agreement"with SFPP on or about 15 February 6,2003. Under the Pipeline Inspection Agreement,EBMUD agreed to pay SFPP for any 16 pipeline inspection costs associated with the Project. EBMUD further agreed to indemnify SFPP, 17 "its affiliates,and all of their employees,partners,agents, and representatives harmless [sic] from 18 and against any and all liability,claims,demands,damages,losses,or costs(including reasonable 19 attorneys'fees)of all kinds and character arising in any way out of EBMUD's construction in the 20 Project Area,except to the extent caused by SFPP's negligence or willful misconduct." A true and 21 correct copy of the Pipeline Inspection Agreement is attached as Exhibit B. 22 13. SFPP is informed and believes,and thereon alleges,that Cross-Defendants 23 knew and/or should have known the location of the SFPP Pipeline. Indeed,ground maps 24 indicating the precise location of the SFPP Pipeline were provided to Cross-Defendants. 25 Cross-Defendants knew and/or should have known of the warnings,maps,potholes and 26 other markings that defined the SFPP Pipeline's path. 27 . 14. In addition, SFPP is informed and believes, and thereon alleges, that MOUNTAIN 28 CASCADE was required to maintain a distance of at least five feet from the SFPP Pipeline. If COOPER,WHRE 530371.1 &COOPER LLP 4 "^°IFORWS`""' CROSS-COMPLAINT ANS :�� SAN FitANGI5CO3 G W tf t 1 MOUNTAIN CASCADE's construction, excavation, and/or installation activities were to occur 2 within five feet of the SFPP Pipeline, it was obligated to inform SFPP of the location in which 3 construction, excavation, and/or installation activities were taking place. If MOUNTAIN 4 CASCADE's construction,excavation,and/or installation activities were to conflict with the SFPP 5 Pipeline,it was obligated under state law to determine the exact location of the SFPP Pipeline by hand 6 digging. 7 15. MOUNTAIN CASCADE did not determine the exact location of the SFPP Pipeline or 8 hand dig,as it was obligated to do. 9 16. As a result,on November 9,2004,MOUNTAIN CASCADE initiated construction, 10 excavation,and/or installation activities which conflicted with the SFPP Pipeline,without notifying 11 SFPP or locating the SFPP Pipeline or hand digging, and struck the SFPP Pipeline with heavy 12 machinery and/or equipment, which caused the SFPP Pipeline to rupture and trigger an explosion 13 ("Explosion"). . 14 17. Five individuals were killed, at least four individuals were injured, and at least one 15 home and its contents were damaged.and/or destroyed as a result of the Explosion. 16 18. In addition,as a result of the Explosion, SFPP lost thousands of gallons of gasoline 17 and incurred significant monetary expense to,among other things,shut off the SFPP Pipeline in 18 various locations,drain residual gasoline from the SFPP Pipeline,and secure and repair the 19 ruptured SFPP Pipeline. SFPP also suffered revenue losses and labor costs caused when the SFPP 20 Pipeline was temporarily shut down to investigate and implement repairs. SFPP has further 21 suffered damages, or may potentially suffer damages,for liability,claims,demands,damages, 22 losses,and costs(including reasonable attorneys'fees),incurred as a result of any judgment or 23 damages award in the Explosion Lawsuits,as well as for any liability,fines,or other civil and 24 criminal penalties imposed by any governmental agency,whether federal or state,relating to any 25 investigation of the Explosion. 26 19. On or about March 21,2005,May 2,2005,August 2,2005,October 4,2005, 27 October 10,2005 and October 26,2005,Cross-Complainants served their timely claims to 28 EBMUD pursuant to Government Code §910. These claims are attached as Exhibit C. On or COOPER,WHrtE 530371.1 &COOPER LLP 5 ATTORNEYS"TLAW CROSS-COMPLAINT POI CALIFORNIA STREET SW FRANCISCO,U9f111 1 about May 4,2005,EBMUD rejected the claims served on March 21,2005 and May 2,2005. 2 These notices of rejection are attached as Exhibit D. No notice of rejection of the claim served on 3 August 2,2005 was delivered to SFPP,and accordingly that claim was deemed rejected by 4 operation of law on September 16,2005. No notice of rejection of the claim served on October 4, 5 2005 has been received,and if no such rejection is received by November 18,2005,the claim will 6 be deemed rejected by operation of law on that latter date. No notice of rejection of the claim 7 served on October 10,2005 has been received,and if no such rejection is received by November 8 24,2005,the claim will be deemed rejected by operation of law on that latter date. No notice of 9 rejection of the claim served on October 26,2005,has been received,and if no such rejection is 10 received by December 10,2005,the claim will be deemed rejected by operation of law on that 11 latter date. 12 FIRST CAUSE OF ACTION 13 (Express Contractual Indemnity) 14 (By Cross-Complainants against East Bay Municipal Utility District) 15 20. SFPP reincorporates and references paragraphs 1 to 19 as if fully set forth herein. 16 21. EBMUD entered into a"Pipeline Inspection Agreement"with SFPP on or about 17 February 6,2003. Under the Pipeline Inspection Agreement,EBMUD agreed to pay SFPP for any 18 pipeline inspection costs associated with the Project. EBMUD further agreed to indemnify SFPP, 19 "its affiliates,and all of their employees,partners,agents,and representatives harmless[sic]from 20 and against any and all liability,claims,demands,damages,losses,or costs(including reasonable 21 attomeys'fees)of all kinds and character arising in any way out of EBMUD's construction in the 22 Project Area,except to the extent caused by SFPP's negligence or willful misconduct." The 23 plaintiffs in the Explosion Cases allege that SFPP is liable for damages arising out of EBMUD's 24 construction in the Project Area. EBMUD is therefore expressly contractually obligated to fully 25 indemnify SFPP and hold it harmless for any liability or other losses incurred as a result of the 26 Explosion,except to the extent caused by SFPP's negligence or willful misconduct. 27 22. SFPP has performed all its obligations under its contract with EBMUD. 28 23. SFPP was not negligent,nor did it engage in willful misconduct,with respect to the COOPER,WHRE 530371.1 &COOPER LLP 6 zo;ORN Wig„ CROSS-COMPLAINT SANFRAMSCA,G04111 1 Project. 2 24. Cross-Complainants have incurred,and continue to incur,necessary and reasonable 3 attorneys'fees and other legal costs in prosecuting this action and in defending the Explosion 4. Lawsuits as well as responding and cooperating in investigations by federal and state agencies 5 relating to the Explosion. By the terms of the agreements between SFPP and EBMUD, SFPP is 6 entitled to recover these fees and costs from EBMUD. SFPP does not know the full amount 7 thereof at this time and will move to amend this Cross-Complaint to state the amount when it 8 becomes known to it,or on proof at trial thereof. 9 WHEREFORE,Cross-Complainants pray for judgment as hereinafter set forth. 10 SECOND CAUSE OF ACTION 11 (Equitable Indemnity) 12 (By Cross-Complainants against All Cross-Defendants) 13 25. SFPP reincorporates and references paragraphs 1 to 24 as if fully set forth herein. 14 26. Various individuals injured and heirs and spouses of individuals injured or killed in 15 the Explosion have filed actions seeking damages from SFPP in the Explosion Lawsuits. 16 27. Various federal and state agencies have investigated or are in the process of 17 investigating the Explosion and have the authority to issue censures,fines,or other civil and 18 criminal penalties to SFPP as a result of the investigations. 19 28. If the Explosion Lawsuit plaintiffs sustained damages as alleged in their 20 complaints,these damages were caused,entirely or in part,by Cross-Defendants as set forth 21 herein. Further,if the governmental agencies determine that violations of federal and state law 22 occurred,those violations were caused,entirely or in part,by Cross-Defendants as set forth herein. 23 29. SFPP is informed and believes,and thereon alleges,that MOUNTAIN CASCADE was 24 required to maintain a distance of at least five feet from the Pipeline. If MOUNTAIN CASCADE's 25. construction, excavation, and/or installation activities were to occur within five feet of the SFPP 26 Pipeline, it was obligated to inform SFPP of the location in which construction,excavation,and/or 27 installation activities were taking place. If MOUNTAIN CASCADE's construction, excavation, 28 and/or installation activities were to conflict with the SFPP Pipeline,it was obligated to determine the COOPER,WHfrE $30371.1 I. COOPER LLP 7 p"�AAS,�EF CROSS-COMPLAINT SAN FRANCISCO.CA 94111 1 exact location of the SFPP Pipeline by hand digging. 2 30. SFPP is informed and believes,and thereon alleges,that MOUNTAIN CASCADE did 3 not determine the exact location of the SFPP Pipeline by hand digging as it was obligated to do. 4 31. As a result, on November 9, 2004,MOUNTAIN CASCADE initiated construction, 5 excavation,and/or installation activities which conflicted with the SFPP Pipeline,without notifying 6 SFPP or locating the SFPP Pipeline or hand digging, and struck the SFPP Pipeline with heavy 7 machinery and/or equipment,all of which Cross-Defendants knew or should have known and which 8 caused the SFPP Pipeline to rupture and triggered the Explosion. 9 32. In addition,MOUNTAIN CASCADE(1)failed to comply with California Government 10 Code section 4216.2 by failing to properly mark excavation areas with white paint; (2) failed to 11 comply with California Government Code section 4216.2 and 4216.3 by failing to make remarking 12 requests within two months prior to the accident,and indeed specifically requested no remarking;(3) 13 failed to comply with California Government Code section 4216.4 by digging in the area of the 14 rupture site with a backhoe,without having first exposed the pipeline by hand digging;(4)failed to 15 comply with California Government Code section 4216.3 by failing to notify Underground Service 16 Alert if there were no visible markings in the area;(5)failed to comply with California Government 17 Code section 4216.3 by failing to notify Underground Service Alert that SFPP,L.P.(allegedly)failed 18 to comply with the Call Before You Dig statute; (6) failed to read the maps in its own possession, 19 which clearly showed the precise location of the bend in the SFPP Pipeline where the rupture 20 occurred; (7) ignored its contractual obligations to verify the location of SFPP's pipeline before 21 excavating in the area of the rupture site; (8) failed to take proper safety precautions; and(8)was 22 otherwise actively and affirmatively careless and negligent in and about the Project. 23 33. EBMUD (1) fired MOUNTAIN CASCADE'S predecessor on the Project, Modem 24 Continental for delays,apparently in large part caused by Modem Continental's compliance with the 25 Call Before You Dig statute;(2)pressured Mountain Cascade to proceed quickly with the project;(3) 26 chose not to request remarking because it feared this would delay the Project;(4)had an inspector on - . 27 site at all times,who failed to read the maps in his possession,which showed the exact location of 28 SFPP's pipeline at the rupture site;(5)failed to ensure that MOUNTAIN CASCADE complied with COOPER.WHITE 530371.1 &COOPER LLP 8 ATTORNEYS ATuw CALIFORNIATREET CROSS-COMPLAINT A SAN FRANCISCO.CA 94111 I its contract, including the requirement that MOUNTAIN CASCADE verify the location of SFPP's 2 pipeline before itapproached the eventual rupture site; (6) failed to ensure that MOUNTAIN 3 CASCADE performed its contract in compliance with the Call Before You Dig statute;(7)failed to 4 deliver maps provided by SFPP showing the precise location of SFPP's pipeline to Mountain Cascade; 5 (8)negligently hired,retained and supervised MOUNTAIN CASCADE,CARROLLO and CDM;(9) 6 failed to take proper safety precautions;and(10)was otherwise actively and affirmatively careless and 7 negligent in and about the Project. 8 34. Cross-Defendants CDM and CAROLLO prepared plans for the Project. CDM and 9 CAROLLO also possessed detailed maps provided by SFPP that provided the exact location of the 10 SFPP Pipeline. CDM's and CAROLLO's plans did not adequately identify or take into account the 11 close proximity of the SFPP Pipeline to the EBMUD Pipeline. Further,CDM and CAROLLO 12 knew or should have known the location of the SFPP Pipeline and failed to deliver those maps and 13 failed to adequately wam MOUNTAIN CASCADE and others working on the Project about the 14 location of the SFPP Pipeline. 15 35. As a result of the Explosion, SFPP has suffered losses in the form of thousands of 16 gallons of gasoline and incurred significant monetary expense to,among other things,shut off the 17 SFPP Pipeline in various locations,drain residual gasoline from the SFPP Pipeline,and secure and 18 repair the ruptured SFPP Pipeline. SFPP also suffered revenue losses and labor costs caused when 19 the SFPP Pipeline was temporarily shut down to investigate and implement repairs. SFPP has 20 further suffered damages,or may potentially suffer damages,for liability,claims,demands, 21 damages,losses,and costs(including reasonable attorneys'fees),incurred as a result of any 22 judgment or damages award in the Explosion Lawsuits as well as for any liability,fines,or other 23 civil and criminal penalties imposed by any governmental agency,whether federal or state, 24 relating to any investigation of the Explosion. 25 36. Cross-Complainants did not commit any breach of contract,violate any statutes, 26 commit fraud or make misrepresentations,or cause or contribute to any other wrongful acts as 27 alleged in the pleadings in the Explosion Lawsuits and therefore deny any and all liability to the 28 Explosion Lawsuits plaintiffs. However,if liability is established,this liability will be due to the COOPER.WHRE 530371.1 &COOPER LLP 9 ATTORNEYS AT UW CROSS-COMPLAINT I01CALIFORNIA STREET SAN FRANCISCO.CA 94111 1 breach of an express or implied contractual duty owed by Cross-Defendants to Cross- 2 Complainants or a breach of a duty owed by Cross-Defendants directly to the Explosion Lawsuits 3 plaintiffs,and not because of any activities or fault on the part of Cross-Complainants. 4 37. Further,as between Cross-Complainants and Cross-Defendants,responsibility,if 5 any, for the damages claimed by the Explosion Lawsuits plaintiffs and any censure,fines,or other 6 civil and criminal penalties assessed by federal or state agencies,rests entirely or partially on 7 Cross-Defendants,and each of them. As a result,Cross-Defendants are obligated to partially or 8 fully indemnify Cross-Complainants for any sums that Cross-Complainants may be compelled to 9 pay as a result of any damages,judgment,fines,or other awards or penalties recovered by the 10 Explosion Lawsuits plaintiffs or assessed by governmental agencies against Cross-Complainants. 11 38. Moreover,if the Explosion Lawsuits plaintiffs'damages are as alleged in their 12 complaints or any subsequent amended pleadings,the damages were primarily and actively caused 13 by Cross-Defendants breach of contractual or other duty to Cross-Complainants or breach of 14 contractual or other duty to the Explosion Lawsuits. Cross-Complainants are therefore entitled to 15 full or partial implied equitable indemnity from Cross-Defendants,and each of them. 16 39. Cross-Complainants have incurred,and continue to incur;necessary and reasonable 17 attorneys'fees and other legal costs in prosecuting this action and in defending the Explosion 18 Lawsuits as well as responding to and cooperating in investigations by federal and state agencies 19 into the Explosion. SFPP does not know the full amount thereof at this time and will move to 20 amend this Cross-Complaint to state the amount when it becomes known to it,or on proof at trial 21 thereof. 22 WHEREFORE,Cross-Complainants pray for judgment as hereinafter set forth. 23 THIRD CAUSE OF ACTION 24 (Negligence) 25 (By Cross-Complainants against All Cross-Defendants) 26 40. SFPP reincorporates and references paragraphs I to 39 as if fully set forth herein. 27 41. Cross-Defendants,and each of them,and their agents,representatives and 28 employees owe,and at all relevant times herein owed, SFPP a duty of reasonable care with respect COOPER,WHITE 530371.1 &COOPER LLP 10 ,l1 C�NOMMTREE, CROSS-COMPLAINT SAN F RANCISCO.CA 94111 I to the construction, excavation and/or installation of the Water Pipeline. These duties include,but 2 are not limited to: 3 (a) MOUNTAIN CASCADE's duties to (1) comply with California Government Code 4 section 4216.2 by properly marking excavation areas with white paint; (2)comply with California 5 Government Code section 4216.2 and 4216.3 by making timely remarking requests;(3)comply with 6 California Government Code section 4216.4 by determining the exact location of the pipeline by hand 7 digging, and refraining from using any power-driven equipment; (4) comply with California 8 Government Code section 4216.3 by notifying Underground Service Alert if there were no visible 9 markings in the area; (5) comply with California Government Code section 4216.3 by notifying 10 Underground Service Alert if it believed that SFPP,L.P. failed to comply with the Call Before You 11 Dig statute;(6)read the maps in its own possession,which clearly showed the precise location of the 12 bend in the SFPP Pipeline where the rupture occurred;(7)comply with its contractual obligations to 13 verify the location of SFPP's pipeline before excavating in the area of the rupture site; and(8)take 14 proper safety precautions. 15 (b) EBMUD's duties to(1)refrain from firing MOUNTAIN CASCADE'S predecessor on 16 the Project,Modern Continental,for delays apparently in large part caused by Modem Continental's 17 compliance with the Call Before You Dig statute;(2)refrain from pressuring Mountain Cascade to 18 proceed quickly with the Project; (3) request that SFPP remark its pipeline; (4) have its on-site 19 inspector apply the standard of care,including reading the maps in his possession,which showed the 20 exact location of SFPP's pipeline at the rupture site; (5) ensure that MOUNTAIN CASCADE 21 complied with its contract, including the requirement that MOUNTAIN CASCADE verify the 22 location of SFPP's pipeline before it approached the eventual rupture site; (6) ensure that 23 MOUNTAIN CASCADE performed its contract in compliance with the Call Before You Dig statute; 24 (7) deliver maps provided by SFPP showing the precise location of SFPP's pipeline to Mountain 25 Cascade;(8)hire,retain and supervise qualified contractors,engineers,and architects;and(9)take 26 proper safety precautions. 27 (c) CDM and CAROLLO's duties to(1)prepare plans for the Project that adequately 28 identify and take into account the close proximity of the SFPP Pipeline to the EBMUD Pipeline; COOPER,YYHITE $30371.1 S COOPER LLP 11 201 H S REI CROSS-COMPLAINT SAHFNANCISCO,CA9,111 1 (2)deliver the maps in their possession that showed the precise location of SFPP's pipeline to 2 MOUNTAIN CASCADE and others working on the Project;(3)adequately warn MOUNTAIN 3 CASCADE and others working on the Project about the location of the SFPP Pipeline. 4 42. As a direct and proximate result of Cross-Defendants'breaches, SFPP's Pipeline 5 was ruptured,which caused SFPP to suffer,and continue to suffer,damages in excess of the 6 jurisdictional amount,including,but not limited to,lost revenue,lost product,loss of use of the 7 Pipeline,and costs to secure and repair the ruptured Pipeline. 8 FOURTH CAUSE OF ACTION 9 (Government Code§4216.7) 10 (By Cross-Complainants against MOUNTAIN CASCADE) 11 43. SFPP reincorporates and references paragraphs 1 to 42 as if fully set forth herein. 12 44. Pursuant to California Government Code section 4216.7,"where an excavator has 13 failed to comply with the notification requirements of Section 4216.2 and the requirements of 14 Section 4216.4, the excavator shall be liable for any claim for damages to the subsurface 15 installation arising from the excavation,by an owner or operator who has complied with the 16 requirements of Section 4216.1 and Section 4216.3,to the extent that the damage was proximately 17 caused by the excavator's failure to comply." 18 45. MOUNTAIN CASCADE failed to comply with the notification requirements of 19 Section 4216.2 and the requirements of Section 4216.4. 20 46. SFPP complied with the requirements of Section 4216.1 and 4216.3. 21 47. MOUNTAIN CASCADE's failure to comply with the notification requirements of 22 Section 4216.2 and the requirements of Section 4216.4 proximately caused damage to SFPP's 23 subsurface installation. Such damages are in excess of the jurisdictional amount,and include 24 without limitation lost revenue,lost product,loss of use of the Pipeline,and costs to secure and 25 repair the ruptured Pipeline. 26 PRAYER FOR RELIEF 27 WHEREFORE,Cross-Complainants pray for judgment against MOUNTAIN CASCADE, 28 CAROLLO,CDM,AND ROES 1-250 as follows: COOPER,WHITE 530371.1 &COOPER LLP 12 TORNEYS 301 LAW CROSS-COMPLAINT "ASTREET SAN i RAW_1SAN(.ISCO.CA 91111 1 1. For indemnity,in an amount to be proven at trial,for: 2 a. any liability incurred in the Explosion Lawsuits. Cross-Complainants will 3 seek leave to amend this complaint to seek indemnity for additional lawsuits 4 if and when such lawsuits are filed; 5 b. any liability,fines,or other civil and criminal penalties imposed by any 6 governmental agency,whether federal or state,relating to any investigation 7 of the Explosion; 8 C. the loss of thousands of gallons of gasoline; 9 d. expenses to,among other things,shut off the SFPP Pipeline in various 10 locations,drain residual gasoline from the SFPP Pipeline,and secure and 11 repair the ruptured SFPP Pipeline; 12 e. revenue losses and labor costs caused when the SFPP Pipeline was 13 temporarily shut down to investigate and implement repairs. 14 2. For attorneys'fees and costs incurred in defending and resolving the Explosion 15 Lawsuits and any investigation for federal or state agencies relating to the Explosion in an amount 16 to be proved at trial; 17 3. For interest on all amounts owed subject to Cross-Defendants'express contractual 18 obligations to indemnify Cross-Complainants; 19 4. For attorneys'fees and costs of suit herein incurred; 20 5. For pre judgment interest; 21 6. For such other and further relief as the Court may deem proper. 22 23 WHEREFORE,Cross-Complainants pray for judgment against EBMUD as follows: 24 1. For indemnity,in an amount to be proven at trial,for: 25 a. any liability incurred in the Knox,Arias,Angeles and Reyes lawsuits 26 identified on Exhibit A. Cross-Complainants will seek leave to amend this 27 complaint to seek indemnity for additional lawsuits after EBMUD has 28 rejected Cross-Complainants'claims for those lawsuits or after such claims COOPER,WHfrE 530371.1 d COOPER LLP 13 ATTORNEYS STREET CROSS-COMPLAINT 701 C ORNEYS ASTREET SAN FRANCISCO.CA 94111 1 have been deemed rejected by operation of law; 2 b. any liability,fines,or other civil and criminal penalties imposed by any 3 governmental agency,whether federal or state,relating to any investigation 4. of the Explosion; 5 C. the loss of thousands of gallons of gasoline; 6 d. expenses to,among other things,shut off the SFPP Pipeline in various 7 locations,drain residual gasoline from the SFPP Pipeline,and secure and 8 repair the ruptured SFPP Pipeline; 9 e. revenue losses and labor costs caused when the SFPP Pipeline was 10 temporarily shut down to investigate and implement repairs. 11 2. For attorneys'fees and costs incurred in defending and resolving the Explosion 12 Lawsuits and any investigation for federal or state agencies relating to the Explosion in an amount 13 to be proved at trial; 14 3. For interest on all amounts owed subject to Cross-Defendants'express contractual 15 obligations to indemnify Cross-Complainants; 16 4. For attorneys'fees and costs of suit herein incurred; 17 5. For pre judgment interest; 18 6. For such other and further relief as the Court may deem proper. 19 20 DATED:November 3,2005 COOPER,WHITE&COOPER LLP 21 22 By: /s/William H.G.Norman William H.G,Norman(SBN 49942) 23 Attorneys for Defendants Kinder Morgan Energy Partners,L.P.;Kinder Morgan G.P., 24 Inc.;Kinder Morgan,Inc.; SFPP,LP 25 26 27 28 COOPER,WHITE 530371.1 &COOPER LLP 14 "' �""""NIASTREET 201 CROSS-COMPLAINT SANFRANUSCO,CA94117 r� �`�O.�'� r 1 �� xh ib W Exhibit A Lawsuits Filed in Connection With the Explosion 1. Knox v.Mountain Cascade, et al.,Contra Costa County Superior Court Case No.C-05- 00281,coordinated into the Gas Pipeline Explosion Cases,Judicial Council Coordinated Proceedings'No.4433. 2. Arias v. Kinder Morgan, Incorporated, et al.,Alameda County Superior Court Case No. RG-05-195567, coordinated into the Gas Pipeline Explosion Cases,Judicial Council Coordinated Proceedings No.4433. 3. Angeles v. Kinder Morgan,Incorporated, et al., Alameda County Superior Court Case ' No.RG-05-195680, coordinated into the Gas Pipeline Explosion Cases,Judicial Council Coordinated Proceedings No.4433. 4. Reyes v.East Bay Municipal Utility District, et al.,Alameda County Superior Court Case No.RG-05-207720, coordinated into the Gas Pipeline Explosion Cases,Judicial Council Coordinated Proceedings No, 4433. 5. Farley v.Mountain Cascade, Inc., et al.,Contra Costa County Superior Court Case No. C-05-01573, coordinated into the Gas Pipeline Explosion Cases,Judicial Council Coordinated Proceedings No.4433. 6. Ramos v.East Bay Municipal Utility District, et al.,Contra Costa County Superior Court Case No.C-05-01840. 7. Im a Kinder Morgan, Inc., et al.,coordinated into the Gas Pipeline Explosion Cases, Judicial Council Coordinated Proceedings No.4433. 8. United Services Automobile Association,Contra Costa County Superior Court Case No. C-05702128. 9. Paasch v. East Bay Municipal Utility District,Contra Costa County Superior Court Case No.C-05-01844. 530361.1 0 ����b�� . PIPELINE INSPECTION AGREEMENT This AGREEMENT is made and entered into this day of rgj ,200-,by and between East Bay Municipal Utility District("EBMUD")and SFPP,L.P.,("SFPP")with reference to the following facts: A. EBMUD is planning to construct water transmission facilities referred to as the Walnut Creek-San Ramon Valley Transmission Improvements Project that will impact SFPP's pipeline easement(the"Project Area"). B. SFPP owns,operates and maintains a 10-inch petroleum product pipeline and appurtenances within the Project Area. NOW,THEREFORE,in consideration of the tents and conditions contained herein, . along with other good and valuable consideration,the sufficiency of which is hereby acknowledged,SFPP and EBMUD hergby agree as follows: 1. EBMUD shall notify SFPP at least 10 days prior to any construction activities in the Project Area. Upon receiving proper notice,SFPP shall provide inspection services during EBMUD's construction activities near the pipeline easement in the Project Area. 2. EBMUD shall pay SFPP the actual cost of pipeline inspection,estimated at$350 per day,plus a 19.4%markup for associated general and administrative overhead. SFPP estimates that the total cost of the inspection services to be provided under this Agreement will be,$37600. 3. EBMUD shall pay a deposit of$20,000 within 5 days after executing this Agreement. SFPP will submit a monthly statement of the inspection services documenting,the name of the inspector,date of inspection,hours worked,and salary rate.If the$20,000 deposit is depleted,EBMUD will deposit the additional estimated amount of$17,600.When the final accounting of the actual cost of the pipeline inspection services is completed,SFPP will submit anitemized billing to EBMUD for review,together with an invoice for additional cost or SFPP's check to reconcile any difference between the actual and the estimated cost_ If the actual cost was greater than the estimated cost,EBMUD shall pay SFPP any invoiced amount within 30. days after receiving such invoice from SFPP. SFPP shall maintain records for 3 years of the actual costs incurred and charged or allocated to the work in accordance with generally accepted accounting principles. 4. EBMUD shall indemnify,defend,and save SFPP,its affiliates,and all of their. employees,partners,agents,and representatives harmless from and againstany and all liability, claims,demands,damages,losses or cots(including reasonable attorneys'fees)of all kinds and character:arising in any way out of EBMUD's construction in the Project Area,except to the extent caused by SFPP's negligence or willful misconduct.SFPP shall indemnify,defend,and save EBMUD and all of its employees,partners,agents,directors,and representatives harmless from and against any and all liability,claims,demands,damages,losses or costs(including reasonable attorneys'fees)of all hinds and character arising in any way out of SFPP's negligence,or willful misconduct and relating in any way to the Project Area,except to the j extent caused by EBMUD's negligence or willful misconduct. a i f 5. This Agreement contains the entire agreement between EBMUD and SFPP with respect to payment to SFPP for pipeline inspection services within the Project Area. 6. This Agreement may be modified only in writing signed by both parties. 7. This agreement is not assignable without the written consent of both parties,and shall be binding upon and inure to the benefit of the heirs and successors of the parties. IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed as of the day first hereinabove written. East Bay Municipal Utility District By: Name: l U Ib L, A7"T— Title•' aeiLq SFPP,L.P. By. Kinder Morgan Operating L.P."D," its General Partner By. Kinder Morgan G.P.,Inc., its General Partner By: C Name' SE 6�e Title: a ec FEDRQ/AGMTSrmspeniod99-341 AEBMUD.doe ' I. ���1� l�C TO.East Bay Municipal Utility District ��� l005 Risk Management Section P.O.Box.74055, MS#604 E.B.t1.6.0. Oakland,CA 94623-1055 CLAIM AGAINST NAME OF CLAIMANT AGE SFPP, L.P. NIA HOME ADDRESS CITY,STATE&ZIP HOME PHONE NO. 1100 Town&Country Road Orange,CA 92868 MAILING ADDRESS (It appticable) CITY.STATE&ZIP WORK PHONE NO. c/o William H.G.Norman,Esq. 201 California Street, 17th Floor 433-i 900 White&Cooper LLP Francisco CA 94111 (415 PLACE OF OCCURRENCE DATE OF OCCURENCE 2 Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek,CA 1119104 TIME approx.1:30 p.m. CIRCUMSTANCES OF OCCURRENCE(Use back of toren,if necessary) See nt. 3 DESCRIPTION OF DAMAGE/INJURY/L05S See attachment. AMOUNT OF CLAIM =1EOS See attachment SE SUPPORIINO DOCUMENTS;e.g.bllls,estimates,invoices,etc. POLICE DEPARTMENT(if applicoble) Walnut Creek Police Department OWNER/DRIVER OF VEHICLE(S)(f opplicoble) 7 YOUR VEHICLE YEAR I MAKE I COLOR MODEL I LICENSE NUMBER NAMES OF EBMUD EMPLOYEES INVOLVED(rt known) 8 See attachment EBMUD VEHICLE OR EQUIPMENT MAKE COLOR VEHICLE NUMBER LICENSE NUMBER (If opplooble) COOP I E OPER LLP 199 SIGNATURE OF CLAIMANT rWilli K H. art,aitorne s for SFPP,L.P. DATE NOTICE: Pursuant to g6vemment code section 911.2,you hove 6 months to h7e a claim for death,personal injury,or personal property. AND 'ecilon 72 ofthe Penal Code provides:"Everyperson with intent to defraud,presents loraflowance orfor payment fo onysta;M board x officer,or to any ,counly,cfiy or district board or officer,authorized to allow or pay the some rf genuine,anylatse"fraudulent claim,bifl,account,voucher,or.writing,is punishable either by imprisonment In the.county Jall for a period of not more than one year,byaOne otnotexeeedingonethousand(Sf,Of>O),orbybothsuch lmpdsonmenfandfine,orbyimpdsonmentinthestateprison, by a fine of not exceeding ten thousand($10,000),or by both such imprisonment and fine.` Na:r•eroe Attachment to Claim Against EBMUD 3. Circumstances of Occurrence EBMUD hired Mountain Cascade,Inc.("Mountain Cascade")to construct,excavate and/or install a water pipeline through the City of Walnut Creek(the"Water Pipeline Project"): While working on the Water Pipeline Project_,Mountain Cascade struck and ruptured a fuel transportation pipeline owned by SFPP,L.P.("SFPP"),resulting in a fatal incendiary explosion. EBMUD was negligent and/or grossly negligent in its hiring,retention,supervision and direction of Mountain Cascade. EBMUD was additionally negligent and/or grossly negligent in preparing,modifying and enforcing its contract documents with Mountain Cascade. EBMUD was additionally negligent and/or grossly negligent with respect to.its own actions and inactions on the Water Pipeline Project,including without limitation EBMUD's inspection activities. EBMUD is liable in tort for SFPP's losses. In addition,EBMUD is contractually liable for SFPP's losses pursuant to the February 6,2003 Pipeline Inspection Agreement between EBMUD and SFPP. The Pipeline Inspection Agreement provides that "EBMUD shall indemnify,defend and save SFPP,its affiliates,and all of their employees,partners,agents,and representatives harmless from and against any and all liability,claims,demands,damages,losses or costs(including reasonable attomeys'fees) of all kinds and character arising in any way out of EBMUD's construction in the Project Area,except to the extent caused by SFPP's negligence'or willful misconduct." In addition,EBMUD must indemnify SFPP for all liability,claims,demands,damages, losses and costs(including reasonable attorneys'fees)arising in connection with Contra Costa Superior Court Case No. C-05-00281,Knox v.Mountain Cascade,Inc,Kinder Morgan:Energy Partners of Houston, Inc.and East Bay Municipal Oility District. A copy of the First Amended Complaint in that case is attached hereto. EBMUD's indemnification obligations arise under the February 6,2003 Pipeline Inspection Agreement and under principles of equitable indemnity. - 4. Description of Damages Damages to SFPP,L.P.include:1 a. labor,material and incidental costs of repairing SFPP's fuel pipeline; b. fuel product released and lost as a result of the rupture; C. revenue losses caused when the pipeline was temporarily shut down to investigate and implement repairs;and 1 SFPP believes there will be-additional claims arising from the incident,and intends to file additional claims with EBMUD when they arise. 517509.1 d. liability,claims,demands,damages,losses and costs(including reasonable attorneys'fees),incurred as a result of Contra Costa Superior Court Case No.C- 05-00281,Knox v.Mountain Cascade,Inc.,Kinder Morgan Energy Partners of Houston.Inc. and East Bay Municipal Utility District. 5. Amount of Claim The amount of damages exceeds$10,000. The claim would not be a limited civil case. S. Names of EBMUD Employees Involved Mountain Cascade,Inc.;Mark Miller,and various other employees of EBMUD whose identities are not yet known. Attachment: Copy of First Amended Complaint in Knox v.Mountain Cascade,Inc. et al. 517509.1 0 TO:East Bay Municipal Utility District Risk Management Section 46/3P.O.Box 24055, MS#604 Oakland,CA 94623-1055 EBMUD CLAIM AGAINST EBMUD NAME OF CLAIMANT AGE SFPP, L.P.; Kinder Morgan, Inc.; Kinder Morgan Energy Partners L.P. N/A HOME ADDRESS CIN.STATE&ZIP HOME PHONE NO. 1100 Town&Country Road Orange,CA 92868 MAILING ADDRESS(U opptcoble) CITY.STATE&ZIP WORK PHONE NO. c/o William H_G.Norman,Esq. 201 California Street,17th Floor White&Cooper LLP $an Francisco CA 94111 (415)433-1900 PLACE OF OCCURRENCE DATE OF OCCURENCE ;Z Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek,CA 1119/04 TIME approx.1:30 p.m. CIRCUMSTANCES OF OCCURRENCE(Use bock of form,if necessary) attachment. q � 58 , �, M � DESCRIPTION OF DAMAG INJURYAOSS ee attachment. 4 5 AMOUNT OF CLAIM NOTE: $ See attachment ENCLOSE SUPPORTING DOCUMENTS:e.g.bOL%estimates,invoice&etc. 6 POLICE DEPARTMENT of opplcoble) Walnut Creek Police Department OWNER/DRIVER OF VEHICLEM(if apprcable) 7. YOUR VEHICLE YEAR MAKE COLOR MODEL SE NUMBER NAMES OF EBMUD.EMPLOYEES INVOLVED(tl known) 8See attachment EBMUD VEHICLE OR EQUIPMENT MAKE COLOR VEHICLE NUMBER LICENSE NUMBER (if applicable) COOP IT PER LLP 9 SIGNATURE OF CLlUMANT ^2F e Illiam H. . orman,attorneys ToEiairriants DATE NOTICE. Pursuant to g6vemment code section 911.X you have 6 months to file a claim for death,personal Injury,or personal property. AND Section 72.of the Penal Code provides:"Everyperson with intentio defraud.presents forallowance offorpayment to anystate board or officer,of to any county,city or district board or officer,authorized to*now or pay the some fl genuine,any false or houdulent claim.b74 account ,.uchw,or writing,is punishable either by imprisonment In the county Jap fora period of not more than one year,byafine ofnol exceedingone thousand($1,000).orbyboih such knpdsonment and line,orbyfmprisonmentinthe stateprison, by a One of not exceeding fen thousand($10,000),or by both such Imprisonment and fuse.' nms•ava , Attachment to Claim Against EBMUD 3. -Circumstances of Occurrence EBMUD hired Mountain Cascade,Inc.("Mountain Cascade")to construct,excavate and/or install a water pipeline through the City of Walnut Creek(the"Water Pipeline Project"). While working on the Water Pipeline Project,Mountain Cascade struck and ruptured a fuel transportation pipeline owned by SFPP,L.P.,resulting in a fatal incendiary explosion(the"Incident"). -One lawsuit that has arisen out of the Incident is Alameda County Superior Court Case No.RG05195680,Marilu Angeles et al. v Kinder Morgan,Incorporated,et al. EBMUD must indemnify SFPP,L.P.,Kinder Morgan,Inc.,and Kinder Morgan Energy Partners L-P.for all liability,claims,demands,damages,losses and costs(including reasonable attorneys'fees)arising in connection with this lawsuit. Another lawsuit that has arisen out of the Incident is Alameda County Superior Court Case No.RG05195567,Juana Lilian Arias,et al.v. Kinder Morgan,hicorporated, et al. EBMUD must indemnify SFPP,L.P.,Kinder Morgan,Inc.,and Kinder Morgan Energy Partners L.P.for all liability,claims,demands,damages,losses and costs(including reasonable attorneys'fees)arising in connection with this lawsuit. Copies of the Complaints in the Angeles and Arias cases are attached hereto. EBMUD's indemnification obligations arise under the February 6,2003 Pipeline Inspection Agreement and under principles of equitable indemnity. 4. Description of Damages Damages to SFPII, L.P.include all liability,claims,demands,damages,losses and costs (including reasonable attorneys'fees),incurred as a result of the two actions identified in paragraph 3. Equitable and contractual indemnity for all such alleged liability,claims, demands,damages,losses and costs is sought against EBMUD. 5: Amount of Claim The amount of damages exceeds$10,000. The claim would not be a limited civil case. 8. Names of EBMUD Employees Involved Mountain Cascade,Inc.;Mark Miller,and various other employees of EBMUD whose identities are not yet known. Attachments: Copies of two Complaints 517509.1 TO:East Bay Municipal Utility District � Risk Management Section P.O.Box 74055, MS tf604 Oakland,CA 94623-1055 EBMUD CLAIM 1 NAME.OF CLAIMANT Kin er organInc.; AGE SFPP, L.P.,Kinder Morgan, Mc.; Kinder Morgan Energy Partners L.P. NIA 140ME ADDRESS CITY,STATE&ZIP HOME PHONE NO. 1100 Town&Country Road Orange,CA 92868 MAILING ADDRESS (U appllcoble) CITY.STATE&ZIP WORK PHONE NO. c/o William H.G.Norman,Esq. 201 California Street, 17th Floor White&Cooper LLP Francisco CA 9411.1 (415)433-1900 PLACE OF OCCURRENCE DATE OF OCCURENCE 2 Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek,CA 11/9/04 TIME approx.1:30 p.m. CIRCUMSTANCES OF OCCURRENCE(Use bock of form it necemo) See attachment. 3IlDn Afth- p _ n DESCRIPTION OF DAMAGE/IhUURV/LOSSJUJ Q(J See attachment. nj 4 AUG �. .. e.s.MU.a RISK MA14ACEMENT 5 AMOUNT OF CLAM NOTE: $ See attachment ENCLOSE SUPPORTING DOCUMENTS.e.g.b0s,estimates.invoices etc. 6 POUCE DEPARTMENT of oppricable) Walnut Creek Police Department OWNER/DRIVER OF VEHICLE(S)(if applicable) 7 YOUR VEHICLE YEAR MAKE COLOR MODEL LICENSE NUMBER NAMES OF EBMLID EMPLOYEES INVOLVED(it known) 8 See attachment EBMUD VENICLI OR EQUIPMENT MAKE COLOR VEHICLE NUMBER LICENSE NUMBER Of apppcable) COOP ,WH DOPER LLP 9 SIGNATURE Of CLAIMANT William H. an,att e s for Claimants DATE NOTICE: Pursuant to government code section 911.4,you have 6 months 10 file a claim for death,personal Injury,or personal properly. AND Section 72of the Penal Code provides:"Everyperson with intent►o defraud,presents forailowance orlorpaymenf fo anystate board orofcer,or to any county,city or district board or officer,authorized to allow or pay the some if genuine,on y false orfraudulent claim,big,account,voucher,or writing,is punishable either by imprisonment in the county/all for a period of not more than one year,byarineolnot exceedingonethousand(51,000),orbybothsuchknprisonment and fine,orbyimprisonment in thestoleprfson, _ by o fine of not exceeding ten thousand($70,000).or by both such imprisonment and fine.` e-on•eras Attachment to Claim Against EBMUD 3. Circumstances of Occurrence EBMUD hired Mountain Cascade,Inc.("Mountain Cascade")to construct,excavate and/or install a water pipeline through the-City of Walnut Creek(the"Water Pipeline Project'-'). While working on the Water Pipeline Project,Mountain Cascade struck and ruptured a fuel transportation pipeline owned by SFPP,L.P.,resulting in a fatal incendiary explosion(the"Incident"). One lawsuit.that has arisen out of the Incident is Alameda County.Superior Court Case No.RG05207720,Laura Reyes,et al.v.East Bay Municipal Utility District, et al. EBMUD must indemnify SFPP,L.P.,Kinder Morgan,Inc.;and Kinder Morgan Energy. Partners L.P.and Kinder Morgan G.P.,Inc.for all liability,claims,demands,damages, losses and costs(including reasonable attorneys'fee§)arising in connection with this lawsuit. A copy of the Second Amended Complaint in the Reyes case is attached hereto- EBMUD's indemnification obligations arise under the February 6,2003 Pipeline Inspection Agreement and under principles of equitable indemnity. 4. Description of Damages -. Damages include all liability,claims,demands,damages,losses and costs(including reasonable attorneys'fees),incurred as a result of the action identified in paragraph 3. Equitable and contractual indemnity for all such alleged liability,claims,demands, damages,losses and costs is sought against EBMUD. 5. Amount of Claim The amount of damages exceeds$10,000. The claim would not be a limited civil case.. 8. Names of EBMUD Employees Involved Mark Miller,Carlos Rodriquez,Doug Poulsen,Mark Warzyniak,Vince Chang,William Kirkpatrick,Dave McIntire,Michael Ambrose,and various other employees of EBMUD whose identities are not yet known. Attachments: Copy of the Second Amended Complaint 517509.2 FAVE® O:East Bay Munlolpal Utility District OCT U 4 2005 Risk Management Section � P.O.Box 24055, MS#604 �� �{�� �S��� Oakland,CA 94623-1055 C� C �v���l/. EBMUD CLAIM AGAINST i 1 NAW OF CLAIMANT AGE SFPP, L.P.;...... . ......... N/A HOME ADDRESS CITY,STATE&ZIP HOME PHONE NO. 1100 Town&Country Road Orange,CA 92868 MAILING ADDRESS(Ifpli able CITY,STATE&ZIP WORK PHONE NO. No c/o William H.G. rman,isq. 201 California Street,17th Floor 415 433-1900 Whit e&Cooper LLP Francisco CA 94111 PLACE OF OCCURRENCE DATE OF OCCURENCE 2 Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek,CA 11 /9104 TIME approx. 1:30 p.m. CIRCUMSTANCES OF OCCURRENCE(Use hack of form,if necessary) . See aflachment, 3 DESCRIPTION OF DAMAGE/INJURY/LOSS - See attachment. J AMOUNT OF CLAM NOTE: $ See attachment ENCLOSE SUPPORTING DOCUMENTS,e.g.full,estimates,(nook es,etc. 6 POLICE DEPARTMENT Of oppiicable) Walnut Creek Police Department OWNER/DRIVER OF VEHICLE($)of applicable) 7 YOUR VEHICLE YEAR MAKE COLOR MODEL .LICENSE NUMBER NAMES OF EBMUD EMPLOYEES INVOLVED(if known) 8 See attachment E EBMUD VEHICLE OR EQUIPMENT MAKE • OR VEHICLE NUMBER LICENSE NUMBER (It applicable) 77 COOP W IT &C PER LLP 9 SIGNATURE OF CLAIMANT --vY William i N an aftme s for Claimants BATE NOVICE: O Pursuant to gdvemmeat code seetlon 911.21 you have 6 months to file a cialm for dea&k person at lnfwy,or personal property. AND 0 Yon72.oftheP..enal Code provider"Sveryperson withinfent to defraud,presents fora0awance orforpaymenito anyslate board w officer,or to any county,city or didil board or officer,authorhed to allow or pay the some if genulne,any false or fraudulent claim,bill,account,voucher,-or wdffnq,Is punishable either by imprisonment In the county Jall for a period of not mora than one JW year,byafine ofnof exceeding one thousand($7,009),orbyboth such imprisonment andbne,orbyimprhonment In theslatepdsoMN< by a One of not exceeding ten thousand($10,000),or by both such Imprisonment and One." lair•6M Attachment to Claim Against EBMUD 3. Circumstances of Occurrence EBMUD hired Mountain Cascade,Inc.("Mountain Cascade")to construct,excavate. and/or install a water pipeline through the City of Walnut Creek(the"Water Pipeline Project"). While working on the Water Pipeline Project,Mountain Cascade struck and ruptured a fuel transportation pipeline owned by SFPP,L.P.,_resulting in a fatal incendiary explosion(the"Incident"). One lawsuit that has arisen out of the Incident is Contra Costa County Superior Court Case No.C-05-01573,Patrick T.Farley, et al. v.Mountain Cascade,Inc., et al. EBMUD must indemnify SFPP,L.P.for all liability,claims,demands,damages,losses and costs(including reasonable attorneys'fees)arising in connection with this lawsuit. A copy of the Complaint in the Farley case is attached hereto. EBMUD's indemnification obligations arise under the February 6,2003 Pipeline Inspection Agreement and under principles of equitable indemnity. 4. Description of Damages Damages.include all liability,claims,demands,damages,losses and costs(including reasonable attorneys'fees),incurred as a result of the action identified in paragraph 3. Equitable and contractual indemnity for all such alleged liability,claims,demands, damages,losses and costs is sought against EBMUD. 5. Amount of Claim The amount of damages exceeds$10,000. The claim would not be a limited civil case. 8. Names of EBMUD Employees Involved Mark Miller,Carlos Rodriquez;Doug PouIsen,Mark Warzyniak,Vince Chang,William Kirkpatrick,Dave McIntire,Michael Ambrose,and various other employees of EBMUD whose identities are not yet known. Attachments: Copy of the Farley Complaint 529502.1 RECEIVE® OCT 1 0 2005 , 40TO: East Bay Municipal Utility District Risk Management Sectlon P.O.Box 74055, MS#604 SECRETARY S OFFICE Oakland,CA 94623-1055 EBMUD CLAIM AGAINST-EBMUD NAME OF CLAIMANT in er organ: ::• mer ..organ,. nc., AGE SFPP, L.P..Kir')der Morgarr energy;.-aq ers,lF:.: : : ;: N/A HOME ADDRESS CRY,STATE&ZIP HOME PHONE NO. 1100 Town&Country Road Orange,CA 92868 MAILING ADDRESS Qf pllcable) CITY,STATE&ZIP WORK PHONE NO. c/o William H.G.Norman,Esq. 201 California Street, 17th Floor White&Cooper LLP San Francisco CA 94111 415 3 433-1900 PLACE OF OCCURRENCE DATE OF OCCURENCE 2 Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek, CA 11 /9104 TIME approx. 1:30 p.m. CIRCUMSTANCES OF OCCURRENCE(Use back of form if necessary) aee attachment. 3 ■ DESCRIPTION OF DAMAGE/INJURY/LOSS See attachment. Q 5 AMOUNT OF CLAIM NOTE: S See attachment ENCLOSE SUPPORTING DOCUMENTS;e.g.bills,estimates,invoices.etc. POLICE DEPARTMENT of appricoble) 6- Walnut Creek Police Department OWNER/DRIVER OF VEHICLE(S)(if applicable) 7 YOUR VEHICLE YEAR MAKE COLOR MODEL LICENSE NUMBER NAMES OF EBMUD EMPLOYEES INVOLVED(if known) See attachment $ EBMUD VEHICLE OR EQUIPMENT MAKECOLOR VEHICLE NUMBER LICENSE NUMBER (it applk:able) 17 CO { -1-OPER LLP SIGNATURE OF CLAIMANT 7 ` am an, tome s for Claimants DATE NOTICE: Pursuant to government code section 911.2,you have 6 months to file a claim for death,personal Injury,or personal property. ARID Section 72 of the P..enal Cade provides:"Everyperson with intent to defraud,presents lor allowance orlorpayment to an y st ate board or officer,or to any county,city or district board or officer,authorized to agow or pay the some if genuine,any false or fraudulent claim,big,account,voucher,or writing,Is punishable either by imprisonment in the county jolt for a period of not more than one year,by a fine ofnot exceeding one thousand($1,000),orbyboth such Imprisonment and tine,orbyimprisonment in the state prison, by a fine of not exceeding len thousand($10,000),or by both such Imprisonment and fin e." Attachment to Claim Against EBMUD 3. Circumstances of Occurrence EBMUD hired Mountain Cascade,Inc.("Mountain Cascade")to construct,excavate -and/or-install a water pipeline through the City of Walnut Creek(the"Water Pipeline Project")_ While working on the Water Pipeline Project,Mountain Cascade struck and. ruptured a fuel transportation pipeline owned by SFPP,L.P.,resulting in a fatal -incendiary explosion(the"Incident"). One lawsuit that has arisen out of the Incident is Contra Costa County Superior Court Case No.C-05-01840,Ramos v.East Bay Municipal Utility District et al. EBMUD must indemnify claimants for all liability,clairris,'demands,damages,losses and costs (including reasonable attorneys'fees)arising in connection with this lawsuit. A copy of the Complaint in the Ramos case is attached hereto. EBMUD's. indemnification obligations arise under the February 6,2003 Pipeline Inspection Agreement and under principles of equitable indemnity. 4. Description of Damages Damages include all liability,claims,demands,damages,losses and costs(including reasonable attorneys'fees),incurred as a result of the action identified in paragraph 3. Equitable and contractual indemnity for all such alleged liability,claims,demands, damages,losses and costs is sought against EBMUD. 5. Amount of Claim The amount of damages exceeds$10,000. The claim would not be a limited civil case. 8. Names of EBMUD Employees Involved Mark Miller,Carlos Rodriquez,Doug Poulsen,Mark Warzyniak,Vince Chang,William Kirkpatrick,Dave McIntire,Michael Ambrose,and various other employees of EBMUD whose identities are not yet known. Attachments: Copy of the Ramos Complaint 528502.1 1:Fa9l Bay Municipal utility Dishict Risk Management Section' Y.O.Box 24055, MS 8604 Oakland,CA 946234055 �BMUD CLAIM AGAINST NAWOFCLAIMANT AGE SFPP, L.P., Kinder Morgan, Inc.,Kinder Morgan Energy Partners, L.P. N/A ' NOME ADDRESS CITY.STATE&ZIP HOME PHONE NO. 1100 Town&Country Road Orange,CA 92868 , MATING ADDRESS•(ifapplicable) CITY,STATE&ZIP WORK PHONE NO. do William H.G.Norman,Esq. 201 Califomia Street,171h Floor 415 433-1900 White&Cooper LLP San Francisco CA 94111 ? PUkCE OF OCCURRENCE DATE OF OCCURENCE 2 Near Broadway between Newell Avenue and Rudgear Avenue in Walnut Creek,CA 11 /9/04 TIME approx.1:30 p.m. CRCUMSTANCES OF OCCURRENCE(Use bock of form if necessary) See c ent: 3 DESCRIPTION OF DAMAGE/INJURY/LOSS see attachment. pJ AMOUNT OF CLAIM NOTE: $ See attachment ENCLOSE SUPPORTING DOCUMENTS,e.g.blit estimates,invoices,etc. 6 POLICE DEPARTMENT Of applicable) Walnut Creek Police Department OWNER/DRIVER OF VEHICLE(S)Of oppricable) 7 YON VEHICLE YEAR MAKE COLOR MODEL IICEteSE NUMBER NAMES OF EBMUD EMPLOYEES INVOLVED(If known) 8 See attachment I I EAMOD VEHICLE OR EQUIPMENT MAKE COLOR VEHICLE NUMBERtlCENSE NUMBER (If gVlcable) COOPER,WHITE&COOPER LLP 9 SMWURE OF CLAIMANT 4r/' (CII a 6/0 5- Jill Jill B.Rowe attorneys for Claimants DATE NOTICE Pursuoniiogdvernmenf code section 911.2,you have 6 months to We a claim for death,personal Injury,or personal property. AND :iloa?Lo/the P..enal Code provides:"Eyeryperson with Intent to defraud,presents lorailowance or fo►payment to anystate board or ofdcd%or to any county.city or district board or officer,authorized to allow or pay the same flgenufne,any false or fraudulent chin,lam,account,voucher,or writing,is punishable either by Imprisonment!n the county jail for a period of not more than one year,byafiee otnot exceeding one thousand($1,000),orbybolh suehlmprlsonment and tine,orbyimprlsonment in t_he state prison, by a Bet alnot exceeding ten thousand($10,000),or by both such Imprisonment and fine.' Attachment to Claim Against EBIVIUD 3. Circumstances of Occurrence EBMUD hired Mountain Cascade,Inc.("Mountain Cascade")to construct,excavate and/or install a water pipeline through the City of Walnut Creek(the"Water Pipeline Project"). While working.on the Water Pipeline Project,Mountain Cascade struck and ruptured a fuel transportation pipeline owned by SFPP,L.P.,resulting in a fatal incendiary explosion(the"Incident'). One lawsuit that has arisen out of the Incident is Contra Costa County Superior Court Case No.3CCP 4433,Im v.Kinder Morgan Inc., et a[. EBMUD must indemnify claimants for all liability,claims,demands,damages,losses and costs(including reasonable attorneys'fees)arising in connection with this lawsuit. A copy of the Complaint in the Im case is attached hereto. EBMUD's indemnification obligations arise under the February 6,2003 Pipeline Inspection Agreement and under principles of equitable indemnity. 4. Description of Damages Damages include all liability,claims,demands,damages,losses and costs(including reasonable attorneys'fees),incurred as a result of the action identified in paragraph 3. . Equitable and contractual indemnity for:all such alleged liability,claims,demands, damages,losses and costs is sought against EBMUD. 5. Amount of Claim The amount of damages exceeds$10,000. The claim would not be a limited civil case. 8. Names of EBMUD Employees Involved Mark Miller,Carlos Rodriquez,Doug Poulsen,Mark Warzyniak,Vince Chang,William Kirkpatrick,Dave McIntire,Michael Ambrose,and various other employees of EBMUD whose identitiesare not yet known. Attachments: Copy of the Im Complaint 529946.1 WAC 63COOPER,BAY M MUNICIPAL UTILITY DISTRICT `R, is May 4,2005 t'tix. Willian H.G.Norman,Esq. Cooper White 8&Cooper,LLP 201 California Street, 17a'Floor Rge*m„ San Francisco,CA 94111 �JyAY yy�,Tf4 RE: " EBMUD Claim No.04/270 �Q�PFq NOTICE OF REJECTION OF CLAIM .Of: SFPP,L.P.; Kinder Morgan,Inc.; Kander Morgan Energy Partners L.P. Dated:April 28,2005 Received: May 2,2005 Notice is hereby given that the claim that you presented to the Board of Directors of East Bay Municipal Utility District has been rejected in its entirety on this date. In compliance with Government Code Section 913,the following is quoted for your information: "WARNING" "Subject to certain exceptions,you have only six(6)months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code Section 945.6" "You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney,you should do so immediately." If you have additional questions,you may reach me at(5 10)287-0167. Sincerely, ck Majors Risk Management Assistant 375 ELEVENTH STREET-.OAKLAND.CA 94607-4240.TOLL TREE f-M40"ESMUD ... DECLARATION OF SERVICE BY MAIL Cp9r c Ops ai State of California County of Alameda I am employed in the County of Alameda,State of California. I am over the age of 18 and not a party to the above-entitled cause. My business address is: P.O.Box 24055 Oakland,-CA 94623=1055 I am familiar with the practice of East Bay Municipal Utility District for collection,the application of appropriate postage and processing of correspondence for mailing with the United States Postal Service. Under that practice,correspondence is deposited with the United States Postal Service the same day it is submitted for mailing. I served the foregoing document,Notice of Rejection of Claim,by placing a true copy thereof for collection and mailing,in the course of ordinary business practice,with other correspondence of East Bay Municipal Utility District,located at 375 11`h Street, Oakland,CA 94607,on May 4,2005,enclosed in a sealed envelope,with the postage thereafter properly applied and fully prepaid,addressed as follows: Willian H.G.Norman,Esq. Cooper White& Cooper,LLP 201 California Street,17'A Floor San Francisco, CA 94111 I declare under penalty of perjury that the foregoing is true and correct. Executed this 4`*day of May,2005,at Oakland,California. Rick Majors Print or Type Name Signatur �13EAST BAY M ED MUNICIPAL UTILITY DISTRICT HAY -52005 May 4,2005 OOpER,WWE&C00pER LLP Willian H.G.Norman,Esq. Cooper White&Cooper,LLP 201 California Street, 17"'Floor San Francisco,CA 94111 RE: EBMUD Claim No.04/270 NOTICE OF REJECTION OF CLAIM Of: SFPP,L.P. Dated:March-18,2005 Received: March 21,2005 Notice is hereby given that the claim that you presented to the Board of Directors of East Bay Municipal Utility District has been rejected.in its entirety on this date. In compliance with Government Code Section 913,the following is quoted for your information: "WARNING" "Subject to certain exceptions,you have only six(6)months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code Section 945.6" "You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney,you should do so im+ne liately." If you have additional questions,you may reach me at(510)287-0167. Sincerely, Rick Majors Risk Management Assistant 375 ELEVENTH STREET.OAKLAND.CA 94607-4240.TOLL FREE i-86640-E&MLM YW. 'W4`94- DECLARATION 3`94DECLARATION OF SERVICE BY MAIL 0y 94 025 00p�R1lp State of California County of Alameda I am employed in the County of Alameda,State of California. I am over the age of 18 and'not a party to the above-entitled cause. My business address is: P.O.Box 24055 Oakland,CA 94623-1055 I am familiar with the practice of East Bay Municipal Utility District for collection,the application of appropriate postage and processing of correspondence for mailing with the United States Postal Service. Under that practice;correspondence is deposited with the United States Postal Service the same day it is submitted for mailing. I served the foregoing document,Notice of Rejection of Claim,by placing a true copy -thereof for collection and mailing,in the course of ordinary business practice,with other " correspondence of East Bay Municipal Utility District,located at 375 11`h Street, Oakland,CA 94607,on May 4,2005,enclosed in a sealed envelope,with the postage thereafter properly applied and fully prepaid,addressed as follows: Willian H.G.Norman,Esq. Cooper White& Cooper,LLP 201 California Street, I?rh Floor San Francisco, CA 94111 I declare under penalty of perjury that the foregoing is true and correct. Executed this 4rh day of May,.2005,at Oakland,California_ Rick Majors Print or Type Name Signature I COOPER,WHITE&COOPER LLP WILLIAM H. G.NORMAN(SBN 49942) 2 BARRY R.OGILBY(SBN 118133) 11-3-05 JILL B.ROWE(SBN 197713) 3 VIJAY K.TOKE(SBN 215079) K.TORRE, CLERK OF THE COURT 201 California Street, 17`h Floor SUPERIOR COURT OF CALIFORNIA 4 San Francisco,California 94111 COUNTY OF CONTRA COSTA-MARTINEZ Telephone: (415)433-1900 BY: S.HARBRECHT, DEPUTY CLERK 5 Facsimile: (415)433-5530 6 Attorneys for Defendants Kinder Morgan Energy Partners,L.P.;Kinder Morgan G.P.,Inc.;Kinder 7 Morgan,Inc.;SFPP,LP 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF CONTRA COSTA 11 12 GAS PIPELINE EXPLOSION CASES CASE NO.Judicial Council Coordinated Proceedings No. 4433 13 Coordinated Actions: KNOX, et al.v.MOUNTAIN CASCADE,et DECLARATION OF WILLIAM NORMAN 14 al.(Contra Costa Sup.Ct.Case No.C 05- RE:ATTORNEY'S CERTIFICATE OF 00281);FARLEY v.MOUNTAIN MERIT 15 CASCADE,et al.(Contra Costa Sup.Ct.Case No.C 05-01573);REYES,et al.v.EAST Assigned to Hon.Terence L.Bruiniers 16 BAY MUNICIPAL UTILITY DISTRICT,et Dept.: 5 al. (Alameda Sup. Ct.Case No.RG-05- 17 207720);ARIAS,et al.v.KINDER MORGAN,et al.(Alameda Sup. Ct. Case No. 18 RG-05-195567);ANGELES,et al.v. KINDER MORGAN,et al.(Alameda Sup.Ct. 19 Case No:RG-05-195680) 20 21 1,William H.G.Norman,declare as follows: 22 1. I am an attorney duly admitted to practice before this Court. I am a partner with 23 Cooper,White&Cooper LLP,attorneys of record for Defendants Kinder Morgan Energy 24 Partners,L.P.,Kinder Morgan G.P.,Inc.,Kinder Morgan,Inc.,and SFPP,L.P.. If called as a 25 witness,I could and would competently testify to all facts within my personal knowledge except 26 -, where stated upon information and belief. 27 28 COOPER,WHITE &COOPER LLP AnoRNEYSATLAW 530367.1 1 201 CAUFORW STREET SANFRANUSCO.CA94111 DECL.OF WILLIAM NORMAN RE:ATTORNEY'S CERTIFICATE OF MERIT 1 2. To the extent that any consultation is required by California Code of Civil 2 Procedure section 411.35(b)(1),I have been unable to obtain such consultation because a statute of 3 limitations would impair the action and the certificate contemplated in section 411.35(b)(1)could 4 not be obtained before the impairment of the action. 5 1 declare under penalty of perjury under the laws of the State of California that the 6 foregoing is true and correct. 7 Executed November 3,2005,at San Francisco,California. 8 9 /s/William H.G.Norman William H. G.Norman 10 11 12 13 14 15 16 ,17 18 19 20 21 22 23 24 25 26 27 28 530367.1 2 COOPER,WHRE &COOPER LLP DFCL OF WJJ.I JAM NORMAN RF•CFRTJFJ .ATF.OF MERIT ATTORNETSATIAw 2 01 CAUFORNIASTREET SANFRANCISCO.G04111 - 1 .COOPER,WHITE&COOPER LLP WILLIAM H.G.NORMAN(SBN 49942) 2 BARRY R.OGILBY(SBN 118133) JILL B.ROWE(SBN 197713) 3 201 California Street, 17dt Floor San Francisco,California 94111 ��dQ 4 Telephone: (415)433-1900 12-23-05 . Facsimile: (415)433-5530 5 K.TORRE,CLERK OF THE COURT Attorneys for KINDER MORGAN ENERGY SUPERIOR COURT OF CALIFORNIA 6 PARTNERS,L.P.,KINDER MORGAN,G.P., COUNTY OF CONTRA COSTA.-MARTINEZ INC.,KINDER MORGAN,INC.and S.F.P.P., BY: S.HARBRECHT. DEPUTY CLERK 7 L.P. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF CONTRA COSTA 11 12 GAS PIPELINE EXPLOSION CASES JUDICIAL COUNCIL COORDINATION PROCEEDING NO.4433 13 Coordinated Actions: KNOX,et al.v.MOUNTAIN CASCADE,et al.(Contra (Lead Coordinated Case Knox,:et al.v. 14 Costa Sup.CL Case No.C 05-00281);FARLEY v. Mountain.Cascade,et al.,Contra Costa County MOUNTAIN CASCADE,et al.(Contra Costa Sup.CL Case Superior Court Case No. C-05-00281] 15 No.C 05-01573);REYES,et al.v.EAST BAY MUNICIPAL UTILITY DISTRICT,et al.(Alameda Sup.Ct.Case No.RG- AMENDMENT TO CROSS-COMPLAINT 16 05-207720);ARIAS,et al.v.KINDER MORGAN,et al. (Alameda Sup.Ct.Case No.RG-05-195567);ANGELES,et Dept.: 5 17 al.v.KINDER MORGAN,et al.(Alameda Sup.Ct.Case No. Judge: Hon.Terence.L.Bruiniers RG-05-195680);RAMOS,et al.v.EAST BAY MUNICIPAL 18 UTILITY DISTRICT,et al.(Contra Costa County Superior Lead Action Filed: February 2,2005 Court Case No.C05-01840);USAA v.EAST BAY Trial Date: TBD 19 MUNICIPAL UTILITY DISTRICT, et al.,(Contra Costa County Superior Court Case No.C05-02128);CHABOT v. 20 EAST BAY MUNICIPAL UTILITIES DISTRICT,et al., (Contra Costa Superior Court Case No.C05-02312); 21 MATAMOROS v.KINDER MORGAN ENERGY PARTNERS,L.P.,et al.,(Contra Costa County Superior 22 Court Case No.COS-02349);TAYLOR,et al.v.EAST BAY MUNICIPAL UTILITY DISTRICT,et al.(Contra Costa 23 County Superior Court Case No.C05-02306);BECERRA v. KINDER MORGAN ENERGY PARTNERS,L.P.,et al., 24 (Contra Costa County Superior Court Case No.C05-02451); IM,et al.v.KINDER MORGAN,INC.,et al.(Contra Costa 25 County Superior Court Case No.C05-02077); PAASCH,et al.v.EAST BAY MUNICIPAL UTILITY DISTRICT, et al.. 26 (Contra Costa County Superior Court Case No.C05-01844); FUENTES,et al.v.KINDER MORGAN, et al..(Contra 27 Costa County Superior Court Case No.C05-02286) 28 COOPEWHITE R, &COOPER LLP ATTORPEYSATlAW 532994.1 1 101 CA FORNA STREET 8" .CA941" AMENDMENT TO CROSS-COMPLAINT 1 Pursuant to the Court's oral order of December 8,2005,Defendants SFPP,L.P.,Kinder 2 Morgan Energy Partners,L.P.,Kinder Morgan G.P.,Inc.,and Kinder Morgan,Inc.,(collectively, 3 "SFPP")file the following amendment to their cross-complaint in a coordinated actions: 4 1. The caption for the cross-complaint should be the captio a ched as Exhibit A hereto. 5 DATED:December_2005 COOPER & O PER LLP 6 7 By: i li orman 8 Attorneys or KINDER ORGAN ENERGY PARTNERS,L.P.,KWMR MORGAN,G.P., 9 INC.,KINDER MORGAN,INC.and S.F.P.P., L.P. 10 11 12 13 S 14 15 16 17 18 19 20 21 22 23 24 25 . 26 27 28 COOPER WHITE 532994.1 6 COOPER LLP .2 ,;; ;�T AMENDMENT TO CROSS-COMPLAINT �. x��b �� �. I COOPER,WHITE&COOPER LLP WILLIAM H.G.NORMAN(SBN 49942) 2 BARRY R.OGILBY(SBN 118133) JILL B.ROWE(SBN 197713) 3 201 California Street, 17'4 Floor San Francisco,California 94111 4 Telephone: (415)433-1900 Facsimile: (415)433-5530 .5 Attorneys for KINDER MORGAN ENERGY 6 PARTNERS,L.P.,KINDER MORGAN,G.P., INC.,KINDER MORGAN,INC.and S.F.P.P., 7 L.P. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF CONTRA COSTA .11 12 JEREMY AND JOHANNA KNOX, JUDICIAL COUNCIL COORDINATION individually, PROCEEDING NO.4433 13 Plaintiffs, [Lead Coordinated Case Knox,et al.v. 14 Mountain Cascade,et al.,Contra Costa County Superior Court Case No. C-05-00281] 15 vs. CROSS-COMPLAINT OF SFPP,L.P., 16 MOUNTAIN CASCADE,INC.,ET AL.;and KINDER MORGAN,INC.,KINDER . DOES 1-50, MORGAN G.P.,INC.,and KINDER 17 MORGAN ENERGY PARTNERS L.P. Defendants. AGAINST EAST BAY MUNICIPAL 18 UTILITY DISTRICT,MOUNTAIN CASCADE,INC.,AND ROES 1-250 19 Lead Action Filed: February 2;2005 20 Trial Date: TBD 21 SFPP,L.P.,KINDER MORGAN,INC., KINDER MORGAN G.P.,INC.,and 22 KINDER MORGAN ENERGY PARTNERS L.P., 23 Cross-Complainants, 24 V. 25 EAST BAY MUNICIPAL UTILITY 26 DISTRICT,MOUNTAIN CASCADE,INC., _ AND ROES 1-250, 27 Cross-Defendants. COOPER WHITE 28 &COOPER LLP 532995.1 l 2M ST� . CROSS-COMPLAINT OF SFPP,L.P.,KINDER MORGAN INC.,KINDER MORGAN G.P.,INC.and KINDER 5""FltANtlS.CAB"" MORGAN ENERGY PARTNERS L.P.AGX&ST EBMUD,INC.AND ROES 1-250 i � I DONALD W.CARLSON[SB No.: 79258] RANDY W. GIMPLE[SB No.: 1297051 2 SAMUEL P.TRUMBULL[SB No.:236046] CARLSON,CALLADINE&PETERSON LLP 3 353 Sacramento Street, 10h Floor San Francisco,California 94111 4 Telephone: (415)391-3911 Facsimile: (415)391-3898 5 MICHAEL P.VERNA[SB No.84070] 6 LAWRENCE D.GOLDBERG[SB No. 1681421 BOWLES &VERNA 7 2121 N.California Blvd., Suite 875 Walnut Creek,CA 94596 8 Telephone: (925)935-3300 Facsimile: (925)935-0371 9 Attorneys for Defendant 10 EAST BAY MUNICIPAL UTILITY DISTRICT �, 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA ; 12 COUNTY OF CONTRA COSTA 13 wy 14 GAS PIPELINE EXPLOSION CASES ) JUDICIAL COUNCIL COORDINATION z ) PROCEEDING NO.4433 15 Knox v.Mountain Cascade,Inc.,et al. ) (Contra Costa Sup.Ct.Case No.C05-00281) } DEFENDANT EAST BAY MUNICIPAL 16 Arias v.Kinder Morgan,Inc.,et al. ) UTILITY DISTRICT'S CROSS— (Alameda Sup.Ct.Case No.RG-05-195567) ) COMPLAINT AGAINST KINDER 17 Angeles v.Kinder Morgan,Inc.,et al. ) MORGAN,INC.,KINDER MORGAN (Alameda Sup.Ct.Case No.RG-05-195680) ) G.P.,INC.,KINDER MORGAN ENERGY 18 Reyes v.East Bay Mun.Utility Dist.,et al. ) PARTNERS L.P.,SFPP,L.P., (Alameda Sup.Ct.Case No.RG-05-207720) ) MOUNTAIN CASCADE,INC., 19 Farley v.Mountain Cascade,Inc.,et al. ) COMFORCE TECHNICAL SERVICES, (Contra Costa Sup.Ct.Case No.C05-01573) ) INC.,CAROLLO ENGINEERS,CAMP 20 Jm v.Kinder Morgan,et al. } DRESSER&MCKEE,INC.,AND ROES (Contra Costa Sup.Ct.Case No.C05-02077) ) 1-200 21 Paasch v.East Bay Mun.Utility Dist.,et al. ) (Contra Costa Sup.Ct.Case No.C05-08144) ) Judge:Hon.Terence L.Buiniers 22 Fuentes v.Kinder Morgan,et al. ) Department: Five (Contra Costa Sup.Ct.Case No:C05-02286) ) 23 USAA v.East Bay Mun. Utility Dist.,et-al. ) (Contra Costa Sup.Ct.Case No: C05-02128) ) 24 ) 25 Defendant and Cross-Complainant East Bay Municipal Utility District (hereinafter 26 "EBMUD") by way of a Cross-Complaint (hereinafter "Cross-Complaint") hereby brings the 27 following cross-claims against Cross-Defendants Kinder Morgan, Inc.,Kinder Morgan G.P., Inc., 28 DEFENDANT EAST BAY MUNICIPAL UTILITY DIsTRICT's CROSS-COMPLAINT r.m.rn•r Mr..r.n AA/,r,TIU•v'tA11 TTA/+TRTTIT/•1tA s.+�. 1 Kinder Morgan Energy Partners L.P., SFPP, L.P., Mountain Cascade, Inc., Comforce Technical 2 Services, Inc., Carollo Engineers, Camp Dresser & McKee, Inc., and Roes 1 through 200, 3 inclusive(collectively hereinafter"Cross-Defendants!),and complains and alleges as follows: 4 GENERAL ALLEGATIONS 5 1. EBMUD is, and at all times relevant herein was, a publicly owned utility formed 6 under the Municipal District Act passed by the California Legislature in 1921. EBMUD maintains 7 its administrative and head offices in the City of Oakland,California. 8 2. EBMUD is informed and believes, and based thereon alleges,that Defendant and 9 Cross-Defendant Kinder Morgan Energy Partners L.P. C KMEP") is, and at all times relevant 10 herein was,a limited partnership doing business in the State of California. a 11 3. EBMUD is informed: and believes, and based thereon alleges, that Defendant and 12 Cross-Defendant Kinder Morgan,Inc. ("KM") is,and at all times relevant herein was,a Delaware e 13 corporation doing business in the State of California. gs 14 4. EBMUD is informed and believes, and based thereon alleges, that Defendant and y " 15 ' Cross-Defendant SFPP,L.P. (SFPP") is, and at all times relevant herein was, a Delaware limited 0 16 partnership doing business in the State of California. � 17 5. EBMUD is informed and believes, and based thereon alleges, that Defendant and 18 Cross-Defendant Kinder Morgan, G.P. Inc. ("KMGP") is, and at all times relevant herein was, a 19 Delaware corporation doing business in the State of California. 20 6. Defendants KMEP, KM, SFPP, and KMGP will be referred to collectively as 21 KINDER MORGAN. . 22 7. EBMUD is informed and believes, and based thereon alleges, that Defendant and 23 Cross-Defendant Comforce Technical Services,Inc.("COMFORCE')is, and at all times relevant 24 herein was,a Delaware corporation doing business in the State of California. 25 8. EBMUD is informed and believes, and based thereon alleges, that Defendant and 26 Cross-Defendant Mountain Cascade Incorporated("MCI')is,and at all times relevant herein was, 27 a California corporation. 28 2 DEFENDANT EAST B.4Y MUNICIPAL UTILITY DIsTrucT's CROSS--CoMPIAiNT rr MTnF A r nom+faun !f%^"TTIli a-nr%v y nIfMRCnTfl.MA ••» 1 9. EBMUD is informed and believes, and based thereon alleges, that Defendant and 2 Cross-Defendant Camp Dresser&McKee,Inc. ("CDM")is,and at all times relevant herein was,a 3 Massachusetts corporation qualified to do business and doing business in the State of California. 4 10. EBMUD is informed and believes, and based thereon alleges that Defendant and 5 Cross-Defendant Carollo Engineers, P.C. ("CAROLLO") is, and at all times relevant herein was, 6 an Arizona corporation qualified to do business and doing business in the State of California. 7 11. The true names and capacities of Cross-Defendants sued herein as Roes I through 8 200, inclusive, are unknown and therefore EBMUD sues these Cross-Defendants by fictitious 9 names. EBMUD is informed and believes, and on that basis alleges, that each.Cross-Defendant 10 designated Roe is responsible under law in some manner,negligently,contractually or otherwise, 11 a for the events and happenings referred to in this Cross-Complaint,and thereby proximately caused C 12 the damages and injuries to EBMUD as alleged. EBMUD will amend this Cross-Complaint to = 13 y d a allege the true names and capacities of these fictitiously named Cross-Defendants when the same 14 ` - has been ascertained. . N 15 12. EBMUD is informed and believes, and on that basis alleges, that at all times 16 relevant herein, each of theCross-Defendants was the agent, employee and/or servant of each of 17 the remaining Cross-Defendants and in doing the things mentioned herein, was acting within the 18 scope of such agency and employment with the permission and consent of each:of the remaining 19 Cross-Defendants. 20 13. Plaintiffs have filed complaints for wrongful death, personal.injury, property 21 damage, and/or other loss or damage as a result of the incident set forth in the complaints on or 22 about November 9, 2004 ("Plaintiffs"). Most of these actions have been coordinated in Contra 23 Costa County Superior Court as the "Gas Pipeline Explosion Cases." Any future complaints 24 alleging wrongful death, personal injury, property damage, and/or other loss or damage arising 25 from the subject incident on or about November 9, 2004, will also be considered to be by 26 "Plaintiffs"herein and subject to this master cross-complaint pursuant to court order of December 27 8,2005,in this coordinated proceeding. The coordinated cases are: 28 3 DEFENDANT EAST BAY MUNICIPAL UTfUTY DISTRICT'S CROSS-COMPLAINT •TTIMI TAT d-f%mv-n !`MDnT%TATInU DDf.''CCnTI.Il:lin AA72 1 a. Angeles v. Kinder Morgan, et al., Alameda County Superior Court Case No.RG- 2 05-195680; 3 b. Arias, et al., v. Kinder Morgan, et al., Alameda County Superior Court Case No. 4 RG-05-195567; 5 c. Chabot v.East Bay Municipal Utility District,et al.,Contra Costa County Superior 6 Court,Case No.C05-02312; 7 d. Farley v.Mountain Cascade,Inc., et a1., Contra Costa County Superior Court Case 8 No.C05-01573; 9 e. Fuentes v. Kinder Morgan Energy Partners, L.P., et al., Contra Costa County 10 Superior Court Case No.C05-02286; 11 f. Im v. Kinder Morgan, Inc.,'Contra Costa County Superior Court Case No. COS- 12 02077; = 13 a g. Knox v. Mountain Cascade, Inc., Contra Costa County Superior:Court Case No. g 14 C05-00281; a s 15 c�^ h. Matamoros v.Kinder Morgan Energy Partners,L.P.,Contra Costa County Superior 16 Court Case No.JCCP No.443; 17 i. Paasch v. East Bay Municipal Utility District,Contra Costa County Superior Court 18 Case No.C05-01844; 19 j. Ramos v.East Bay Municipal Utility District,Contra Costa County Superior Court 20 Case No.C05-01840; 21 k. Reyes v.East Bay Municipal Utility District,Alameda County Superior Court Case. 22 No.RG-05-20770; 23 I. Taylor v.East Bay Municipal Utility District,Contra Costa County Superior Court 24 Case No.C05-02306; 25 m. United Services Automobile Association v. East Bay Municipal Utility District, 26 Contra Costa County Superior Court Case No.C05702128; 27 28 4 DEFENDANT EAST BAY MUNICIPAL LYMITY DisTRICT'S CROSS—COMPLAINT TI T1m IT .+i+ i+.l+f1 I.MT.+.+..mA♦1 An/\/I!nl+.+.l1fA AA'.'f 1 14. These Plaintiffs' complaints will be. referred to as "Plaintiffs' Complaints." 2 EBMUD disputes and denies liability for the events and damages alleged in said Plaintiffs' 3. Complaints. 4 FIRST CAUSE OF ACTION 5 (Declaratory Relief Against All Cross-Defendants) 6 15. EBMUD incorporates herein each and every allegation contained:in Paragraphs 1 7 through 14,inclusive. 8 16. On or about November 3, 2005, Cross-Defendant KINDER MORGAN filed a 9 cross-complaint for Negligence and Indemnity against EBMUD, MCI, CAROLLO, CDM, and 10 Roes 1-250 in the Superior Court of California,Contra Costa County. EBMUD denies any and all a 11 liability for the facts and damages alleged in said cross-complaint. c 12 17. On or about December 12, 2005, Cross-Defendant MCI filed a complaint for 1y > 13 q 14 Negligence, Breach of Contract, Indemnity and other claims against EBMUD and various other Q defendants 57 efendan s ul the Superior Court of California,CahfonuaContra Costa County, Case o. COS-02 6. y 15 EBMUD denies any and all liability for the facts and damages alleged in said complaint. 16 U 17 18. As a result of the filing of the Plaintiffs'Complaints,KINDER MORGAN's Cross- Complaint and MCI's Complaint, EBMUD has been required to retain, and has retained, legal 18 counsel to defend against Plaintiffs', KINDER MORGAN's and MCI's claims and EBMUD has 19 20 incurred, and will continue to incur, costs and expenses for investigation, expert witnesses, legal 21 fees and other costs and expenses necessary to properly defend the actions, the full amount of 22 which has not yet been ascertained. 19. EBMUD contends that Cross-Defendants, not EBMUD, are solely responsible for 23 the events, occurrences, conduct and/or resulting damages, if any, described in Plaintiffs' 24 Complaints, KINDER MORGAN's Cross-Complaint and MCI's Complaint. If Plaintiffs, 25 26 KINDER MORGAN and/or MCI were, in fact, injured and damaged as alleged in the Plaintiffs' 27 Compaints, KINDER MORGAN's Cross-Complaint or MCI's Complaint, then said injuries and damages were solely and entirely the result of acts and/or omissions of Cross-Defendants. 28 5 DEFENDANT EAST BAY MUNICIPAL UTILM DIsmi T's CRo&-COMPLAm 1 . 20. An actual controversy now exists between EBMUD and Cross-Defendants in that 2 EBMUD contends that (1) as between EBMUD and Cross-Defendants, responsibility, if any, for 3 the damages claimed by Plaintiffs, KINDER MORGAN, and MCI herein, rests entirely or 4 partially on Cross Defendants; and (2) Cross Defendants are obligated to defend and partially or 5 fully indemnify EBMUD for any sums EBMUD may be compelled to pay as :a result of any 6 damages,judgment or other awards recovered by PIaintiffs,KINDER MORGAN or MCI against 7 EBMUD. 21. EBMUD desires judicial determination,of the respective rights and duties of 9 EBMUD. and Cross-Defendants with respect to Plaintiffs', KINDER MORGAN's and MCI's 10 claims for damages. In particular, EBMUD desires a declaration of comparative liability of 11 aEBMUD and Cross-Defendants for these damages, and a declaration of Cross-Defendants' 0 12 2 responsibility to EBMUD for any sums that EBMUD may be compelled to pay and for which 94 13 Cross-Defendants are determined responsible,entirely or in part. d 14 22. Such a declaration is necessary and appropriate at this time in order that EBMUD 15 may ascertain its legal rights and duties with respect to Plaintiff's', KINDER MORGAN's and 16 MCI's claims for damages. c� 17 WHEREFORE,EBMUD prays for judgment against Cross-Defendants, and each-of them, 18 as set forth below. 19 SECOND CAUSE OF ACTION 20 (Express Indemnity Against Kinder Morgan,MCI and CDM) 21 23. EBMUD incorporates herein each and every allegation contained in Paragraphs 1 22 through 22,inclusive. 23 24. KINDER MORGAN is contractually obligated to defend, indemnify, and hold 24 EBMUD harmless for any claims, losses, or damages arising out of, or resulting from KINDER 25 MORGAN's conduct. 26 25. MCI is contractually obligated to defend, indemnify, and hold EBMUD harmless - . 27 for any claims,losses,or damages arising out of,or resulting from MCI's conduct. 2$ ' 6 DEFENDANT EAST BAY MUNICIPAL UTILITY DISTRICT'S CROSS-COMPLAINT 1 26. CDM is contractually obligated to defend, indemnify, and hold EBMUD harmless 2 for any claims,losses,or damages arising out of,or resulting from CDM's conduct. 3 27. Although EBMUD has denied and continues to deny that Plaintiffs, KINDER 4 MORGAN or MCI have in any way been damaged by any act or failure to act on the part of 5 EBMUD,in the event that Plaintiffs,KINDER MORGAN and/or MCI prevail against EBMUD on 6 the purported causes of action asserted against EBMUD in Plaintiffs' Complaint, KINDER 7 MORGAN's Cross-Complaint, and MCI's Complaint, EBMUD will be damaged in an amount 8 equal to any judgment rendered against it in favor of the Plaintiffs,KINDER MORGAN and/or 9 MCI and will be entitled to be indemnified and reimbursed by KINDER MORGAN,MCI,and/or 10 CDM in the same amount. The full amount of said damages is not presently ascertainable and will 11 not be ascertainable until the conclusion of this action, at which time EBMUD will seek leave to a 12 amend this Cross-Complaint by inserting such amount. E 13 28. EMBUD is also entitled to full reimbursement from KINDER MORGAN, MCI, 14 and CDM for any and all attorneys' fees and costs incurred in the defense of Plaintiffs' action, 15 Z y KINDER MORGAN's cross-action, MCI's action, and the prosecution of this Cross-Complaint. O 16 The full amount of said damages is not presently ascertainable and will not be ascertainable until 17 the conclusion of this action,at which time EBMUD will seek leave of Court to amend this Cross- Complaint by asserting such amount. 19 WHEREFORE,EBMUD prays for judgment against MORGAN,MCI,and CDM and each 20 of them,as set forth below. 21 THIRD CAUSF,OF ACTION 22 (Equitable Indemnity Against All Cross-Defendants) 23 29. EBMUD incorporates herein each and every allegation contained in.Paragraphs I 24 through 28,inclusive. 25 30. EBMUD is informed and believes and thereon alleges that Cross-Defendants are 26 either partially or wholly responsible and liable for any damages allegedly sustained by Plaintiffs, 27 KINDER MORGAN or MCI. In the event Plaintiffs, KINDER MORGAN and/or MCI recover 28 damages through settlement or judgment from EBMUD,the damages will be the proximate result 7 DEFENDANT EAST BAY MUNICIPAL.UTILITY DISTRICT'S CROSS-COMPLAINT 1 of the primary and active negligence or other fault of Cross-Defendants. The conduct of EBMUD 2 did not proximately contribute to Plaintiffs',KINDER MORGAN's or MCI's injuries and was at 3 most secondary and passive in nature. 4 31. Therefore, EBMUD is entitled to-full or partial indemnity from Cross-Defendants 5 according to the principles of comparative fault and equitable allocation of loss for any 6 contribution made by EBMUD to Plaintiffs',KINDER MORGAN's and/or MCI's recovery or for 7 any amount or amounts for which EBMUD is found liable to the Plaintiffs, KINDER MORGAN 8 and/or MCI in excess of the percentage of the.verdict of judgment which is proportionate to the 9 comparative fault,if any,of EBMUD. 10 32. In view of the fact that Plaintiffs', KINDER MORGAN's and MCI's damages, if a 11 any, were caused in whole or in part by the actions or inactions of Crass-Defendants, it is 0 12 y equitable and appropriate for Cross-Defendants to indemnify EBMUD for any damages that may ? 13 w a be assessed against EBMUD, and,furthermore, for any legal expenses, including but not limited 14 a to,attorneys' fees,that EBMUD may incur in defending the action. S� 3 15 WHEREFORE, EBMUD prays for judgment against Cross-Defendants, and each of them, 16 as set forth below. 17 FOURTH CAUSE OF ACTION 18 (Breach of Contract Against Kinder Morgan and Roes 1-50) 19 33. EBMUD incorporates herein each and every allegation contained in Paragraphs 1 20 through 32,inclusive. 21 34. EBMUD is informed and believes and thereon alleges that KINDER MORGAN 22 and ROES 1-50 owned, operated or otherwise retained control of the subject Kinder Morgan 23 Pipeline that ruptured during the incident set forth in the complaints on or about November 9, 24 2004. 25 35. EBMUD is informed and believes and thereon alleges that on or about February 6, 26 2003 KINDER MORGAN and ROES 1-50 entered into a written agreement with EBMUD 27 entitled "Pipeline Inspection Agreement," whereby KINDER MORGAN and ROES 1-50 28 expressly and impliedly agreed to perform certain obligations, including providing inspection 8 DEFENDANT EAST BAY MUNICIPAL UTILITY DISTRICT's CROSS—COMPLAINT smrrn. n�i n.nir nMr.nnf.T.-.1T nnnnrr.nein.fn i.00 i 1 . services during EBMUD's construction activities near the pipeline easement. A true and correct 2 copy of the Pipeline Inspection Agreement is attached as Exhibit A. 3 36. EBMUD is informed and believes and thereon alleges that KINDER MORGAN 4 and ROES 1-50 undertook and assumed, for valuable consideration, the expressed and implied 5 contractual obligations of the aforesaid contract. 6 37. EBMUD is informed and believes and thereon alleges that KINDER MORGAN 7 and ROES 1-50 failed to perform its obligations under the aforesaid contract. 8 38. As an actual and proximate result of said breach of contract by KINDER 9 MORGAN and ROES 1-50,EBMUD has been damaged. 10 PRAYER FOR RELIEF 11 j WHEREFORE,EBMUD prays this Court to enter judgment as follows: 0 12 ti On the First Cause of Action: p 13 1. For a judicial determination that Cross-Defendants are obligated to fully indemnify C U a 14 EBMUD for all past and future fees incurred to defend those portions of Plaintiffs' Complaint, gN-� 15 c`v KINDER MORGAN's Cross-Complaint and MCI's Complaint relating to Cross-Defendants' � 16 conduct and all damages claimed by Plaintiffs,KINDER MORGAN and MCI,if any are found to 17 exist,that arise from Cross-Defendants'conduct; 18 2. For a declaration that Cross-Defendants are obligated to fully indemnify EBMUD 19 if this Court adjudges that EBMUD is compelled to pay any sum as the result of any damages, 20 judgment, or other award recovered by Plaintiffs, KINDER MORGAN and/or MCI in this 21 litigation; 22 On the Second Cause of Action: 23 1. That KINDER MORGAN,MCI and CDM,inclusive,be held liable by this court to 24 indemnify and reimburse EBMUD,in whole or in part,in the amount of any judgment that may be 25 rendered against it and in favor of Plaintiffs, KINDER MORGAN and/or MCI, and proportioned 26 to the responsibility of Cross-Defendants; 27 28 9 DEFENDANT EASTBAY MUNICIPAL UTILITY DISTRICr's CROS"ONIPLAINT . 1 On the Third Cause of Action: 2 1. That Cross-Defendants, inclusive, be held liable by this court to indemnify and 3 reimburse EBMUD, in whole or in part, in the amount of any judgment that may be rendered 4 against it and in favor of Plaintiffs, KINDER MORGAN and/or MCI, and proportioned to the 5 responsibility of Cross-Defendants; 6 On the Fourth Cause of Action: 7 1. That KINDER MORGAN and ROES 1-50 be held liable by this court for breach of 8 - contract,and be obligated to pay EBMUD in accordance therewith; 9 On all Causes of Action: 10 A. For costs of suit incurred herein; ll aB. For attorneys'fees and expenses; 0 12 C. For interest as allowed by law;and 13 D. For such other relief as this Court deems appropriate. La 14 15 U^ Dated: December q 2005 CARLSON,CALLADINE&PETERSON 16 17 By 18 S EL P.TRUMBULL Attorneys for Defendant East Bay Municipal 19 Utility District 20 21 22 23 24 25 26 27 28 10 DEFENDANT EAST BAY MUNICIPAL UTILITY DIsTRICT's CROSS-COMPLAINT ...s�.I...t nn�w r...• M/�nrKT.TtI�1f f.�A/1TfT`nT�l/.llf� •I71 PIPELINE INSPECTION AGREEI MNT This AGREEMENT is made and entered into this / day...of ,200 by and between East HayMunicipal U61ityDistrict("BIN=D)and SPPP,LP.,{" P'�with reference to the following facts: -A. ]-BMUD is planning to construct water transmission facilities referred to as the Walnut Creek-San Ramon Valley Transmission improvemenrs Project that will impact SFPP's pipeline easement(the"Project Area'. B. SFPP owns,operates and maintains a 10-inch_petroleum product pipeline and appurtenances­witltin the Project Area. NOW,TBEREFORE,in consideration of the reams and conditions contained herein, along with other good and valuable considesufficiency ration,the suciency of which is hereby acknowledged,SFPP and EBMUD hereby agree as follows: 1. EBMUD shall notify SFPP at least 10 days prior to any construction activities in the Project Area. Upon receiving proper notice,SFPP shall provide inspection services during EBNM's construction activities near the pipeline easement in the Project Area. I EBMUD shall pay SFPP the actual cost of pipeline inspection,estimated.at$350 per day,plus a 19.4%markup for associated general and administrative overhead- SFPP estimates that the total cost of the inspection services to be provided under this Agreement will be$3600. 3. EBMUD shall pay a deposit of$2(3,000 within 5 days after executing this Agreement. SFPP will submit a monthly statement of the inspection services documenting,the name of the inspector,date of inspection,hours worked,and salary tate.If the$20,000 deposit is depleted,EBMUD will deposit the additional estimated amount of$17,600.When the final accounting of the actual cost of the pipeline inspection services is completed.SFPP will submit an itemized billing to EBMUD for review,together with an invoice for additional cost or SFPP's check to reconcile any difference between the actual and the estimated cost: If the actual cost was greater than the estimated cost,EBMUD shall pay SFPP any invoiced amount within 30 days after receiving such invoice from SFPP. SFPP shall maintain records for 3 years of the . actual costs incurred and charged or allocated to the work in accordance with generally accepted accounting principles. 4. EBMUD shall indemnify,defend,and save SFPP`,its affiliates,and all of their employees,partners,agents,and representatives harmless from and against any and all liability, claims,'demands,damages,Iosses or costs(including reasonable attorneys'fees)of all kinds and character arising in any way out of IEBMUD's construction in the Project Area,except to the extent caused by SFPP's negligence or willful misconduct.SFPP shall indemnify,defend,and save BBMUD and all of its employees,partners,agents,directors.and representatives harmless from and against any and all liability,claims,demands,damages,'lWses or costs(including reasonable attorneys' fees)of all kinds and character arising in anyway out of SFPP's negligence,or willful misconduct and relating in any way to the Project Area,except to the extent caused by EBMM's negligence or willful misconduct, 5. This Agreement contains the entire agreement between EBM[ID and SPPP with respect to payment to 5F1PP"for pipeline inspection services within the Project Area. fi. This Agreement may be rnodifed only in writing signed by both patties. 7 This agreement is not assignable%vMout the written consent of troth pnrtics,and shall be binding upon and inure to the benefit of the heirs and successors of the patties. IN WITNESS WI-MPEOP,the patties hereto have caused this Agreement to be executed as of the day first hereinabove written. Last Bay Municipal Utility District fti'atiic A-u t�.�• rte _ SFPP,L.P. l By: Kinder.Morgan Operating LP."D,' its General Partner By: Kinder Morgan G.P.,Inc., its General Partner By: Title: Sen eve- H:>7RQAt3Mt5lnspccuoa/99.74tAEBAdUD•doc i I PROOF OF SERVICE Gas Pipeline Explosion Cases(Consolidated Cases) 2 Judicial Council Coordination Proceeding No.4433 3 I,the undersigned,declare that I am employed in.the County of San Francisco,State of 4 California. I am over the age of eighteen years and not a party to the within action;my business 5 address is CARLSON, CALLADINE & PETERSON, 353 Sacramento Street, Suite 1600,'San 6 Francisco,California 94111. 7 8 On December 20,2005,I served a true copy of the following document(s): 9 DEFENDANT EAST BAY MUNICIPAL UTILITY DISTRICT'S CROSS—COMPLAINT AGAINST HINDER MORGAN,INC.,HINDER MORGAN G.P.,INC.,HINDER 10 MORGAN ENERGY PARTNERS L.P.,SFPP,L.P.,MOUNTAIN CASCADE,INC., COMFORCE TECHNICAL SERVICES,INC.,CAROLLO ENGINEERS,CAMP a 11 DRESSER&MCKEE,INC.,AND ROES 1-200 12 electronically on the attached list of designated recipients through One Legal at N V13 http://www_onelegal.com. Upon completion of electronic transmission of said document(s), a o14 receipt is issued to serving party acknowledging receipt by One Legal's system.; Once One Legal a„ 15 has served all designated recipients,proof of electronic service is returned to the fling party which U'^ w 16 will be maintained with the original document(s)in our office. This service complies with CCP 17 § 1010.6. 18 I declare under penalty of perjury under the laws of the State of California that the 19 foregoing is true and correct and that this declaration was executed at San Francisco,California, 20 on December 20,2005. 21 / 22 : Beverley Ling 23 24 25 26 27 28 t I �i 1 SILVANO B. MARCHESI (SBN 42965) County Counsel 2 GREGORY C. HARVEY(SBN 47974) Assistant County Counsel 3 COUNTY OF CONTRA COSTA 651 Pine Street, 9th Floor 4 Martinez, California 94553 Telephone: 925 335-1800 5 Facsimile: (925) 335-1866 gharv@cc.cccounty.us 6 Attorneys for Defendants 7 CONTRA COSTA COUNTY and COUNTY OF CONTRA COSTA FLOOD CONTROL AND 8 WATER CONSERVATION DISTRICT 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF CONTRA COSTA 11 12 GAS PIPELINE EXPLOSION CASES Judicial Council Coordination Proceedings No. 4433 13 Coordinated Actions: KNOX, et al. v. MOUNTAIN CASCADE, et al. (Unlimited Civil) 14 (Contra Costa Sup.Ct. Case No.005-00281); FARLEY v.MOUNTAIN CASCADE, et al. (Contra CONTRA COSTA COUNTY AND 15 Costa Sup. Ct. Case No. C05-01573); REYES, et al. CONTRA COSTA FLOOD CONTROL v. EAST BAY MUNICIPAL UTILITY DISTRICT, AND WATER CONSERVATION 16 et al. (Alameda Sup.Ct.Case No. RG-05-207720); DISTRICT'S CROSS COMPLAINT ARIAS, et al.v.KINDER MORGAN,et al. (Alameda AGAINST EAST BAY MUNICIPAL 17 Sup.Ct.Case No. RG-05-195567); ANGELES,et al. UTILITY DISTRICT, MOUNTAIN v. KINDER MORGAN, et al.(Alameda Sup. Ct. CASCADE INC., KINDER MORGAN, 18 Case No. RG-05-915680);RAMOS, et al.v. EAST INC., KINDER MORGAN ENERGY BAY MUNICIPAL UTILITY DISTRICT,et al. PARTNERS L.P. SFPP, L.P., KINDER 19 (Contra Costa Sup.Ct. Case No. C05-01840); USAA MORGAN GROUP; G.P. INC., v. EAST BAY MUNICIPAL UTILITY DISTRICT COMFORCE TECHNICAL SERVICES, 20 et al. (Contra Costa Sup.Ct Case No. C05-02128); CAMP DRESSER&MCKEE, CHABOT v. EAST BAY MUNICIPAL UTILITIES COROLLO ENGINEERS, P.C., AND 21 DISTRICT et al.(Contra Costa Sup.Ct.Case No. ROES 1-10. C05-02312);MATAMOROS v.KINDER MORGAN 22 ENERGY PARTNERS,L.P., et al(Contra Costa Sup.Ct.Case No. C05-02349);TAYLOR,et al. v. 23 EAST BAY MUNICIPAL UTILITY DISTRICT, et KNOX, et al. v. MOUNTAIN al.(Contra Costa Sup.Ct. Case No. C05-02306); CASCADE, et al. (Contra Costa Superior 24 BECERRA v. KINDER MORGAN ENERGY Court Case No. C05-00281)[Designated PARTNERS,L.P., et al(Contra Costa Sup.Ct.Case case for Cross Complaint filings) 25 No.005-02451); IM, et al. v. KINDER MORGAN, INC.,et al.(Contra Costa Sup.Ct.Case No.005- 26 02077); PAASCH,et a1.v.EAST BAY MUNICIPAL UTILITY DISTRICT,et al.(Contra 27 Costa Sup.Ct. Case No.005-01844); FUENTES,et al.v. KINDER MORGAN, et al.(Contra Costa 28 Sup.Ct.Case No.005-02286) CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT Judicial Council Coordination Proceedings No. 4433 1 I Defendants and Cross-Complainant Contra Costa County and Contra Costa County 2 Flood Control and Water Conservation District (herein after"CONTRA.COSTA")by way of 3 a Cross-Complaint(hereinafter"Cross-Complaint") hereby brings the following cross-claims 4 against Cross-Defendants East Bay Municipal Utility District(hereinafter"EBMUD"), Kinder 5 Morgan, Inc., Kinder Morgan G.P., Inc., Kinder Morgan Energy Partners L.P., SFPP, L.P., 6 Mountain Cascade, Inc., Comforce Technical Services, Inc., Carollo Engineers, Camp dresser 7 & McKee, Inc., and Roes I through2 00, inclusive (collectively hereinafter"Cross- 8 Defendants"), and complains and alleges as follows: 9 GENERAL ALLEGATIONS 10 1. The County of Contra Costa is, and at all times relevant herein was, a public entity I 1 created under the Constitution and laws of the California. The Board of Supervisors 12 maintains its offices at 651 Pine Street,Martinez, California. 13 2. The Contra Costa Flood Control and Water Conservation District is, and all time 14 relevant herein, a public entity and a special district under the supervision and control 15 of the Contra Costa County Board of Supervisors. 16 3. Cross Defendant EBMUD is, and at all times relevant herein was, a publicly owned 17 utility formed under the Municipal District act passed by the California Legislature in 18 1921. EBMUD maintains its administrative and head offices in the City of Oakland, 19 California. 20 4. Contra Costa filed a timely government tort claim with EBMUD, and is currently in 21 negotiations with EBMUD concerning indemnification and defense of Contra Costa in 22 the matters coordinated in the Gas Pipeline Explosion Cases, Contra Costa Superior 23 Court Action number JCCP 4433 and in the as yet uncoordinated matter of Mountain 24 Cascade, Inc., v. Kinder Morgan, more fully described below. The EBMUD governing 25 board has not yet authorized the indemnification and defense of CONTRA COSTA. 26 5. CONTRA COSTA is informed and believes, and based thereon alleges,that Defendant 27 and Cross-Defendant Kinder Morgan Energy Partners L.P. ("KMEP") is, and at all 28 times relevant herein was, a limited partnership doing business in the State of CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA.COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT Judicial Council Coordination Proceedings No. 4433 2 I California. 2 6. CONTRA COSTA is informed and believes, and based thereon alleges,that Defendant 3 and Cross-Defendant Kinder Morgan, Inc. ("KM")is, and at all times relevant herein 4 was, a Delaware corporation doing business in the State of California. 5 7. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant 6 and Cross-Defendant SFPP, L.P. ("SFPP") is, and at all times relevant herein was, a 7 Delaware limited partnership doing business in the State of California. 8 8. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant 9 and Cross-Defendant Kinder Morgan, G.P. Inc. ("KMGP") is, and at all times relevant 10 herein was, a Delaware corporation doing business in the State of California. 11 9. Defendants KMEP, KM, SFPP, and KMGP will be referred to collectively as KINDER 12 MORGAN. 13 10. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant 14 and Cross-Defendant Comforce Technical Services, In. ("COMFORCE") is, and at all 15 times relevant herein was, a Delaware corporation doing business in the State of 16 California. 17 11. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant 18 and Cross-Defendant Mountain Cascade Incorporated("MC") is, and at all times 19 relevant herein, was, a California corporation. 20 12. CONTRA COSTA is informed and believes, and based thereon alleges, that Defendant 21 and Cross-Defendant Camp Dresser&McKee, Inc., ("CDM") is, and at all times 22 relevant herein was, a Massachusetts corporation qualified to do business and doing 23 business in the State of California. 24 13. CONTRA COSTA is informed and believes, and based thereon alleges that Defendant 25 and Cross-Defendant Carollo Engineers, P.C. ("CAROLLO") is, and at all times 26 relevant herein was, an Arizona corporation qualified to do business and doing business 27 in the State of California. 28 14. The true names and capacities of Cross-Defendants sued herein as Roes 1 through 200, CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA,COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT Judicial Council Coordination Proceedings No. 4433 3 I inclusive, are unknown and therefore CONTRA COSTA sues these Cross-Defendants 2 by fictitious names. CONTRA COSTA is informed and believes, and on that basis 3 alleges, that each Cross-Defendant designated Roe is responsible under law in some 4 manner, negligently, contractually or otherwise, for the events and happenings referred 5 to in this Cross-Complaint, and thereby proximately caused the damages and injuries to 6 CONTRA COSTA as alleged. CONTRA COSTA will amend this Cross-Complaint to 7 allege the true names and capacities of these fictitiously named Cross-Defendants when 8 the same has been ascertained. 9 15. CONTRA COSTA is informed and believes, and on that basis alleges, that at all times 10 relevant herein, each of the Cross-Defendants was the agent, employee and/or servant 11 of each of the remaining Cross-Defendants and in doing the things mentioned herein, 12 was acting within the scope of such agency and employment with the permission and 13 consent of each of the remaining Cross-Defendants. 14 16. Plaintiffs have filed complaints for wrongful death, personal injury, property damage, 15 and/or other loss or damage as a result of the incident set forth in the complaints on or 16 about November 9, 2004 ("Plaintiffs"). Most of these actions have been coordinated 17 in Contra Costa County Superior Court as the "Gas Pipeline Explosion Cases." Any 18 future complaints alleging wrongful death,personal injury, property damage, and/or 19 other loss or damage arising from the subject incident on or about November 9, 2004, 20 will also be considered to be by "Plaintiffs"herein and subject to this master cross- 21 complaint pursuant to court order of December 8, 2005, in this coordinated proceeding. 22 The coordinated cases are: 23 a. Angeles v. Kinder Morgan, et al., Alameda County Superior Court Case No. RG- 24 05-195680; 25 b. Arias, et al. v. Kinder Morgan, et al., Alameda County Superior Court Case No. 26 RG-05-195567; 27 C. Chabot v. East Bay Municipal Utility District, et al., Contra Costa County 28 Superior Court, Case No. C05-02312; CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT Judicial Council Coordination Proceedings No. 4433 4 I d. Farley v. Mountain Cascade, Inc., et al., Contra Costa County Superior Court, 2 Case No. C05-01573; 3 e. Fuentes v. Kinder Morgan Energy Partners, L.P., et al., Contra Costa County 4 Superior Court, Case No. C05-02286; 5 f. Iin v. Kinder Morgan, Inc., Contra Costa County Superior Court, Case No. C05- 6 02077; 7 g. Knox v. Mountain Cascade, Inc., Contra Costa County Superior Court, Case No. 8 C05-00281; 9 h. Matamoros v. Kinder Morgan Energy Partners, L.P., Contra Costa County 10 Superior Court, Case No. JCCP No. 4433; 11 i. Paasch v. East Bay Municipal Utility District, Contra Costa County Superior 12 Court, Case No. C05-01844; 13 j. Ramos v. East Bay Municipal Utility District, Contra Costa County Superior 14 Court, Case No. C05-01840; 15 k. Reyes v. East Bay Municipal Utility District, Alameda County Superior Court 16 Case No. RG-05-20770; 17 1. Taylor v. East Bay Municipal Utility District, Contra Costa County Superior 18 Court, Case No. C05-02306; 19 . in. United Services Automobile Association v. East Bay Municipal Utility District, 20 Contra Costa County Superior Court, Case No. C05-02128; 21 17. These Plaintiffs' complaints will be referred to as "Plaintiffs' Complaints." Thus far 22 CONTRA COSTA has been named in only one of the above complaints, i.e.Ramos v. 23 East Bay Municipal Utility District, Contra Costa County Superior Court, Case No. 24 C05-01840. CONTRA COSTA disputes and denies liability for the events and 25 damages alleged in said Plaintiffs' complaints 26 18. CONTRA COSTA has also been sued by MOUNTAIN CASCADE,INC., in a cross 27 complaint filed in the JCCP 4433 coordinated action and in a complaint filed in 28 Mountain Cascade, Inc. v. Kinder Morgan Energy Partners L.P. (Contra Costa CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT Judicial Council Coordination Proceedings No. 4433 5 I Superior Court Case No. C05-92576. CONTRA COSTA disputes and denies liability 2 for the events and damages alleged in the MCI Cross Complaint and Complaint. 3 FIRST CAUSE OF ACTION 4 (Declaratory Relief Against All Cross-Defendants) 5 19. CONTRA COSTA incorporates herein each and every allegation contained in 6 Paragraphs 1 through 18, inclusive. 7 20. As a result of the filing of the Plaintiffs' Complaints, MCI's Cross-Complaint and 8 MCI's Complaint, CONTRA COSTA has been required to retain, and has retained, 9 legal counsel to defend against Plaintiffs' and MCI's claims and CONTRA COSTA has 10 incurred, and will continue to incur, costs and expenses for investigation, expert 11 witnesses, legal fees and other costs and expenses necessary to properly defend the 12 actions, the full amount of which ash not yet been ascertained. 13 21. CONTRA COSTA contends that Cross-Defendants, not CONTRA COSTA, are solely 14 responsible for the events, occurrences, conduct and/or resulting damages, if any, 15 described in Plaintiffs' Complaints, and MCI's Complain and Cross Complaintt. If 16 Plaintiffs and MCI were, in fact, injured and damaged as alleged in the Plaintiffs' 17 Complaints,MCI's Cross-Complaint or MCI's Complaint, then said injuries and 18 damages were solely and entirely the result of acts and/or omissions of Cross- 19 Defendants. 20 22. An actual controversy now exists between CONTRA COSTA and Cross-Defendants in 21 that CONTRA COSTA contends that(1) as between CONTRA COSTA and Cross- 22 Defendants, responsibility if any, for the damages claimed by Plaintiffs and MCI 23 herein,rests entirely or partially on Cross-Defendants; and(2) Cross-Defendants are 24 obligated to defend and partially or fully indemnify CONTRA COSTA for any sums 25 CONTRA COSTA may be compelled to pay as a result of any damages,judgment or 26 other awards recovered by Plaintiffs or MCI against CONTRA COSTA. 27 23. CONTRA COSTA desires judicial determination of the respective rights and duties of 28 CONTRA COSTA and Cross-Defendants with respect to Plaintiffs' and MCI's claims CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA.COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT Judicial Council Coordination Proceedings No. 4433 6 I for damages. In particular, CONTRA COSTA desires a declaration of sole liability of 2 Cross-Defendants for these damages, and a declaration of Cross-Defendants' 3 responsibility to CONTRA COSTA for any sums that CONTRA COSTA may be 4 compelled to pay and for which Cross-Defendants are determined:responsible, entirely 5 or in part. 6 24. Such a declaration is necessary and appropriate at this time in order that CONTRA 7 COSTA may ascertain its legal rights and duties with respect to Plaintiffs' and MCI's 8 claims for damages. 9 WHEREFORE, CONTRA COSTA prays for judgment against Cross-Defendants, and 10 each of them as set forth below. 11 SECOND CAUSE OF ACTION 12 (Express Indemnity Against EBMUD) 13 25. CONTRA COSTA incorporates herein each and every allegation contained in 14 Paragraphs 1 through 24, inclusive. 15 26. EBMUD is contractually obligated to defend, indemnify, and hold CONTRA COSTA 16 harmless for any claims, losses or damages arising out of, or resulting from the 17 performance of the Work on the pipeline extension project described in the complaints 18 and cross complaints except for damages arising from CONTRA COSTA's sole 19 negligence or wilful misconduct as more fully described in the government tort claim 20 filed with EBMUD on January 13, 2006 and the documents attached thereto which are 21 hereby incorporated by this reference. 22 27. Although CONTRA COSTA has denied and continues to deny that Plaintiffs or MCI 23 have in any way been damaged by any act or failure to act on the part of CONTRA 24 COSTA, in the event that Plaintiffs and/or MCI prevail against CONTRA COSTA on 25 the purported causes of action asserted against CONTRA COSTA in Plaintiffs' 26 Complaint, MCI's Cross-Complaint, and MCI's Complaint, CONTRA COSTA will be 27 damaged in an amount equal to any judgment rendered against it in favor of the 28 Plaintiffs and/or MCI and will be entitled to be indemnified and reimbursed by CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT Judicial Council Coordination Proceedings No. 4433 7 1 EBMUD in the same amount. The full amount of said damages is not presently 2 ascertainable and will be not be ascertainable until the conclusion of this action, at 3 which time CONTRA COSTA will seek leave to amend this Cross-complaint by 4 inserting such amount. 5 28. CONTRA COSTA is also entitled to full reimbursement from EBMUD for any and all 6 attorneys' fees and costs incurred in this defense of Plaintiffs' action, MCI's cross- 7 action, MCI's action, and the prosecution of this Cross-Complaint. The full amount of 8 said damages is not presently ascertainable and will not be ascertainable until the 9 conclusion of this action, at which time CONTRA COSTA will seek leave of Court to 10 amend this Cross-Complaint by asserting such amount. I 1 WHEREFORE, CONTRA COSTA prays for judgment against EBMUD as set forth 12 below. 13 THIRD CAUSE OF ACTION 14 (Equitable Indemnity Against All Cross-Defendants) 15 29. CONTRA COSTA incorporates herein each and every allegation contained in 16 Paragraphs 1 through 28, inclusive. 17 30. CONTRA COSTA is informed and believes and thereon alleges that Cross- 18 Defendants are either partially or wholly responsible and liable for any damages allegedly 19 sustained by Plaintiffs or MCI. In the event Plaintiffs and/or MCI recover damages through 20 settlement or judgment from CONTRA COSTA, the damages will be the proximate result of 21 the primary and active negligence or other fault of Cross-Defendants. The conduct of 22 CONTRA COSTA did not proximately contribute to Plaintiffs' or MCI's injuries and was at 23 most secondary and passive in nature. 24 31. Therefore, CONTRA COSTA is entitled to full or partial indemnity from Cross- 25 Defendants according to the principles of comparative fault and equitable allocation of loss for 26 any contribution made by CONTRA COSTA to Plaintiffs' and/or MCI's`recovery or for any 27 amount or amounts for which CONTRA COSTA is found liable to the Plaintiffs and/or MCI in 28 excess of the percentage of the verdict of judgment which is proportionate to the comparative CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT Judicial Council Coordination Proceedings No. 4433 8 1 fault, if any of CONTRA COSTA. 2 32. In view of the fact that Plaintiffs' and MCI's damages, if any, were caused in 3 whole or in part by the actions or inactions of Cross-Defendants, it is equitable and appropriate 4 for Cross-Defendants to indemnify CONTRA COSTA for any damages that may be assessed 5 against CONTRA COSTA, and, furthermore, for any legal expenses, including but not limited 6 to, attorneys' fees, that CONTRA COSTA may incur in defending the action. 7 WHEREFORE, CONTRA COSTA prays for judgment against Cross-Defendants, and 8 each of them, as set forth below. 9 PRAYER FOR RELIEF 10 WHEREFORE, EBMUD prays this Court to enter judgment as follows: 11 On the First Cause of Action: 12 1. For a judicial determination that Cross-Defendants are obligated to fully indemnify 13 CONTRA COSTA for all past and future fees incurred to defend those portions of Plaintiffs' 14 Complaint, MCI's Cross-Complaint and MCI's Complaint relating to Cross-Defendants' 15 conduct and all damages claims by Plaintiffs and MCI, if any are found to exist, that arise from 16 Cross-Defendants' conduct. 17 2. For a declaration that Cross-Defendants are obligated to fully indemnify CONTRA 18 COSTA if this Court adjudges that CONTRA COSTA is compelled to pay any sum as the 19 result of any damages,judgment, or other award recovered by Plaintiffs and/or MCI in this 20 litigation; 21 On the Second Cause of Action: 22 1. That EBMUD be held liable by this court to indemnify and reimburse CONTRA 23 COSTA, in whole or in part, in the amount of any judgment that may be rendered against 24 CONTRA COSTA and in favor of Plaintiffs and/or MCI, and proportioned to the 25 responsibility of Cross-Defendants. 26 On the Third Cause of Action: 27 1. That Cross-Defendants, inclusive, be held liable by this court to indemnify and 28 reimburse CONTRA COSTA, in whole or in part, in the amount of any judgment that may be CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT Judicial Council Coordination Proceedings No. 4433 9 I rendered against CONTRA COSTA and in favor of Plaintiffs and/or MCI, and proportioned to 2 the responsibility of Cross-Defendants; 3 On all Causes of Action: 4 A. For costs of suit incurred herein; 5 B. For attorneys' fees and expenses; 6 C. For interest as allowed by law; and 7 D. For such other relief as this Court deems appropriate. 8 9 DATED: January 20, 2006 SILVANO B. MARCHESI, County Counsel 10 11 12 By: GREGORY C. HARVEY- 13 Assistant County Counsel Attorneys for Cross Complainants 14 CONTRA COSTA COUNTY & 15 COUNTY OF CONTRA COSTA FLOOD CONTROL AND WATER 16 CONSERVATION DISTRICT 17 18 19 20 21 22 23 24 25 26 27 28 CROSS COMPLAINT BY COUNTY OF CONTRA COSTA AND CONTRA COSTA FLOOD CONTROL AND WATER CONSERVATION DISTRICT Judicial Council Coordination Proceedings No. 4433 10