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O t� � . . .. rn i CD • (� ' � Tpa o C x� l o �o m ID o �w Z ( I O ' C� +N W N � ra \ O "�(_T m </� K\Vrnrn a . lV C�. .. . 3100 A�^ x CD O.� BOO N (n —• p C D -. m w< x U Qo CO -+, � � o CD 0 Oa -j ycr cn 3 -- N O 0 cn O 3 r 0 - o �•„ � OGOQG T 2 JOHN M.ANTON, State Bar No.54888 WILLIAM E. LOMBARDINI, State Bar No. 191464 BOXER& GERSON, LLP 10-14-05 300 Frank H.Ogawa Plaza Rotunda Building, Suite 500 Oakland, California 94612WOCOURT Telephone: (510)835-8870 Facsimile: WOFGOMOSTA:PINNdE ANTONIO RUIZ,State Bar No. 155659Br S HARBREA,DEPMCLERK CONCEPCON E. LOZANO-BATISTA, State Bar No.22722; WEINBERG,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, Metz!Yarel Hernandez, Emilin Hernandez, Juana Llilan Arias, Adrian 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.v.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,et al. ) DEATH (Contra Costa Sup.Ct.Case No.C 05-01573) ) REYES,at al.v.EAST BAY MUNICIPAL ) ANGELES,et al,v.KINDER MORGAN,et al. UTILITY DISTRICT,et al. ) (Alameda Sup.CL Case No.RG-05-195680) (Alameda Sup.CL 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,at al. ) E (Alameda Sup.CL Case No.RG-05-195680) _ ,/c U'tTt?/50S" 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. 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 10-inch 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. Carollo 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 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, partner,joint venturer,and/or alter-ego of the remaining Defendants and/or that t 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 104nch 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. Plaintiffs 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 Marilu Angeles, mother of Metzi Yarel Hernandez and Emilin Hernandez,is the duly appointed guardian ad litem of Metzi Yarel Hernandez and Emilin Hernandez, minors. 21. Prior to the death of Decedent, Plaintiffs Metzi Yarel Hernandez and Emilin Hernandez had the right to redeive 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) 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 acoordance 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 Mongan 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 Northam 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; -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 f� 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 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 Pipeline workers so as to prevent breach of the petroleum line during the 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 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 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; 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" 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.) S 41. According to the U.S.Department of Transportation'$"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, 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,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 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§4218.3,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 i 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 worts,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. 11 i 12 Illl - 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. i 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. 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 Hamm 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 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 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, 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 L847, �� LS-16, LS-42, LS-12 and the.CALNEV line. Approximately 50%of Kinder Morgan 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 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 Colton 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 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 Munfcipal 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, 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 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 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 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. 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. 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; • failed to require Kinder Morgan Energy Partners to relocate the Kinder Pipeline to a location away from the immediate vicinity of the Project; r� 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 hams. 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 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 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 j� 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 District's 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 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. r/ l� 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 Modern 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 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 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 pians 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 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 f 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, 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; S. 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 1 k W.East Bay opemlpal idrkt D Risk Management Section P.O.Box=65, MS#604 Oakland CA 94628-IDBS LCBMUD CLAIM AGAINST EBOUD ~W MARILU AN $ indivi.duallY and_ asgnardi A6E for METZI 10 HOME ADDRESS CITY,UFAIE UP HO P Ofd NO. 517 Fleming #4 Vallejo, CA 94591 None MAILM ADDRESS Qf applk d- lb) CITY.arm do ZP VIM PHONE NO. same same None PLACE OF OCCLIWaCE eDAn of DOClfe>: S '2 On South Broadwaal BetwCSS i-k ltewell Ave. and &udgear Road: IIJO/04 CE LVi=OF OCCURRENCE Nee back of form.Uaeca=Y) See Attached Exhibit A d Q1 MAY 2 2005 Now P DE9CRIPn0N OF DAMASE/QyftRfYA= r•� 4 See Attached Exhibit A S AMOUNT OF CLAIM J DWL0=GVMRFM aoMWOm184 bnt Beres k=kML Bra. S 10 000 000.00 6 POLICE DEPAmmaQf q*ftc " owWwWWR OF VEfi CWM Of opOOOW) 7 NA YOUR V.EHICU• NnA1� COLAR Mom luc:m rtu1� E9 Of EBMUD EMPLOYEES*MLVED Of knmm) B OR 10"P AM COLOR vEflic LICEMNUNEIHi orqxAObb) - Unknown I Unknown 1 -Unknown nknown JOHN M. ANTON, Boxer & Gerson, 300 Frank S. Ogawa Plaza, Sulte 500, 9 Oakland1"' CA 94612, attorneys for Marilu Angeles 510-836 8 70 �5 SIONAiYR!Ole CLA1 mff, ' ' TE NOTICE. Pr ,md to gdvmnmmf cocks sealm Y114 you bane d mw.gp fa Me a dulb Aar o l,ftp k*vy.or pasonalPNPWIy- AND S.eNeA�;totflrt+PeardaodBprovhfex'Evayrpeuonallf► dsdawd,P►!�nfslaaBowrneawlbrpannsnlfumWalafsbowd erbEcer■crib=wcowdy,aNyerdMbfboard arol6ea,amlm tsdfoaRworpayAire*ameMgonm,anrrkh000rflaodWat ckj%big areauef,vorrdW,or fv M96 h paR AabN Wmby►nprtlonm d Ib ft oowdy)W hp a paled of not WAM fbwe era Year,byafiruolnofexoaad8�orrslhanrarrd jS1.�D�;wbyboaraah�enfarrdfii+A,erbpfi»prisoneNnflh fhasfafUui.9orr. by Q Bn.ornot.�oessdrn{g fen Ntoutoad(Sf0,o00�,orby beth sdeA tr�ps�sonrnerd and�- "�'.°", EXHIBIT i� EXHIBIT A ATTACHMENT TO CLAIM AGAINST EBMUD MARILU ANGELES,et al. a. CIRCUMSTANCES OF OCCURRENCE East Bay Municipal Utility District(EBMUD)planned,designed,owned, supervised, controlled,and constructed a public works project known as the Walnut Cnvc-San Ramort Valley Improvement Project("Project°). The Project involved installation of a water pipeline("EBMUD Pipeline')and is more particularly described at http,,//www ebmud/Com/water 8�environmanftater supply/curren#,,,,projecbl Inut creek san�rartton 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 EBMUD 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 diirect 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 trench. The IGnder Pipeline was at all times an underground utility transporting flammable material, consisting of gasoline,diesel fuel,or jet fuel. On November 9,2004,at approximately 1:2A p.m.,the backhoe operator so operated his equipment as to penetrate the Kinder Pipeline,causing the flammable material within to escape. The flammable material ignited,killing Israel Hernandez. The everuts are further described at http://www ebmud.comwater&envimrtmenftMec-supply/current pro]eGteAvalnut creek sar>_ramot valleyldefaultlhtm#November 9 1 ... .......... 4. DESCRIPTION OF DAMAGEVINJURIES/LOSS At the time of his death on November 9,2004, Israel Hamdndez was the domestic partner of claimant Marilu Angeles, born 411011876. Israel Hernandez was the father of claimants Metal Yarel Hernandez,born 311612001, and Emilin Hernandez, born 1/12/2003. . Claimants assert that in planning,designing,owning,supervising, controlling and constructing the Project, ESMUD(among other things)actively,directly, negligently,and wrongfully., ♦ hired Mountain Cascade, Inc.,and others,to perform 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 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 mops showing the location of the IGnder Pipeline before'aliowing Mountain Cascade,and others, to excavate near the Kinder Pipeline and ESMUD 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 condifion of public property by performing work,or allowing work to be performed on its behalf,on the Project in the Immediate vicinity of the IGnder Pipeline as opposed to mother location In the City of Walnut Creek where the lender 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 Kinder Morgan Energy Partners)regarding the location of the Kinder Pipeline to the vicinity of the Project; 4 failed to proceed,and require Mountain Cascade and others including fonder Morgan Energy Partners,LP.,to proceed,with the work around the fender Pipeline through safe and acceptable means; failed to conduct,and require Mountain Cascade and others including Kinder Morgan Energy Partner's to conduct,daily inspections by a Competent individual prior to ft 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 Hemandez,deceased,from the hazardous area until necessary precautions had been take to ensure the 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 Hermndaes claiins for compensatory damages for personal Injury survive his death, and are asserted by claimant Marilu Angeles. Additionally,claimants Metzi Yarel Hernandez and Emllin Hernandez have a eielm for'compensetory damages for the wrongful death of Israel Hemandez. Claimants assert all such claims against, among others,EBMUD. DATED: April 2005 BOXER&GERSON, LLP By: : JOHN M.ANTON Attorneys for Claimants 3 f � EAST BAY MUNICIPAL U71LIrY DISTRICT April 28,2005 John.M.Anm Boxer&Gerson 300 Frank H.Ogawa Plaza,Suite 500 Oakland,CA 94612 RE: EBMUD Claiax No.041270 NOTICE OF REtELMON OF CLAIM of. 1Viarllu Angeles,indivkkally aml as guardism ad lit em for Metzi"Yarel Hernandez and Emilia Hernandez Dated:April 29,205 Received: May Z,2045 Notice is hereby given that the claim that you presented to the Bound of Directors of Bast Bay Municipal Utility Dzstnct has been rejected in its entirety on this date. In compliance with Government Cade Section 913,the following is quoted for your Wo on;: "WARMG" "Subject to certain exceptions,you have only six(6)months from the �\ date this notice was pe tssonally delivered or deposited in the mail to fat a ` court action,on this claim. See Govemmeant Code Section 945.6" "You may seek the advice of an attorney of yqur choice in connections with this matter. if you dem to consult an attamey,you should do so immediately." If you have additional questions,you may reach me at(510)287-0161. Sinn- e3}; Rick M160 Risk Management Assistant f MEEtMMSTRW OAKLAND.Q41401-40 T=FAW14OF+04MWW EXNIBIT 13 { i DECLARATION OF SERVICE Bx MAIL State of CaMmia CountyofAlameda I am employed in the County of Almeda,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 awn familiar with the practice of But Bay Municipal Utility District for collection,the application of appropriate postage and processing of correspondence for mai'liag with the United States Postal Service. Under that practice,covespondeace is deposited with the United States Poatal Service the same day it is submitted for mailing. I served the foregoing document,Notice of,Refectlon of Claim,by placiO8 a tra copy thereof for collection and mailing,in the coarse of ordinary business practice,with other correspondence of East Bay Municipal Utility District,located.at 37511 Street, Oakland,CA 94607.on May 2,ZOOS,enclosed in a sealed envelope,with the postage thereaft properly applied and fully prepaid,addressed as follows: John M.Anton Boxer do Oarson 300 Fi=ka Ogawa Plaza State 500 Oakland,CA 94612 I declare under penalty of perjury that the foregoing is true and correct. Executed this 2"day ofM,ay,2005,at Oakland,California. Rick Majors Print or ape Name Signature . i 2:1 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 p Oakland, California 94612 Telephone: (510)835-8870 Facsimile: (510)835-0415 ANTONIO RUIZ,State Bar No. 155659 10-14-05 CONCEPC16N E. LOZANO-BATISTA,State Bar No.2272: W EINBERG, ROGER&ROSENFELD,P.C. - A Professional Corporation :T4RRE: 1 :Of3}IEGQtiRT 1001 Marina Village Parkway,Suite 200 SUPE'RIQRC4l1R'faFC 10RNA Alameda;CA 94501-1091 EIAfY OF CONTRA CST�i-fltTINEZ Telephone: (510)337-1001 Facsimile:(510)337-1023 :-Br &HARBRECHt,DEPUTY CLERK Attorneys for Marilu Angeles, Metzi Yarel Hernandez, Emilin Hernandez, Juana Llilan Arias, Adrian Cristina 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. j 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,at al.v.KINDER MORGAN,et 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,at 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) i 2 JUANA LILIAN ARIAS,individually and FIRST AMENDED COMPLAINT FOR as guardian ad iitem 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 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 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 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 10-inch 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. Carollo 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 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, partner,joint venturer,and/or alter-ego of the remaining Defendants and/or that 10 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. 1.9. Plaintiffs Adriana Cristina Rodriguez Arias,born September 26,2001, the daughter of Decedent,and Alegadra Stephanie Rodriguez-Arias, born August 22, 2003,the daughter of Decedent,are the heirs and successors in interest of Decedent. 20. Plaintiff Juana Lilian Arias,mother of Adriana 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 Adriana Cristina Rodriguez and 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 Northam 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 safety 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� 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 i Pipeline workers so as to prevent breach of the petroleum line during the ', progress of the work; . 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 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 close proximity to the excavation path of the EBMUD Northam 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; 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 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." 39. On November 22,2004,for the second time in as many months,a r� 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 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, 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 approximate locatiob which may be affected by the excavation,to the extent and 11 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. 11 f� 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 dangee to avoid this risk. 64. Said Defendants,and each of them jecelved 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 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 LS-42 resulting in the release of let 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,LS42, LS-12 and the CALNEV line. Approximately 50%of Kinder Morgan 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 Colton 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"its 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 Mchard 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 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 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 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. 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." 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 5-19,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 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. 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; j • failed to require Kinder Morgan Energy Partners to relocate the Kinder Pipeline to a location away from the immediate vicinity of the Project; i } 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 104nch 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 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 District's 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 start of actual excavation;that they shall determine the exact location of existing utilities whose approximate locations are shown on drawings;that contract drawings depleted 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 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. 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, L.P. 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.,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 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 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 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 i 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. As a 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 2930,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 Plpeline to the EBMUD Northern Pipeline and the work to be done with regard to the Project,Carollo Engineers,P.C.and Does 2930 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 n3-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, 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 acid 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; �. 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 I� fl- FO:East Day MenticlpalUiNltytNsMct JUANA LILIAN ARIAS, indididually and as NO Managtement$90on guardian ad litem for ADAIANA CBISTINA P.O.Bax 7405$ M3 9M RODRIGUEZ ARIAS and ALEGANDRA STEPHANIE Oakland,CA 94623-1058 RODRI•GUEZ..ARIAS, minors, and ALICIA RODS ESMIlG CLAIM AGAINST EBOUD NAIL OFCLAW AGE JUANA LILIAN ARIAS, at al. (See above) 25 HOME ADOM cay1 STALE ulp OME PHONE NO. 2 365 Pacific Street Hayward, CA 94544 SID-538-7419 MAKA+IC3 ADDRESS of apploabls) Citi:S1A1$a ap WORK PHONE NO. some same none P1ACE0F0C=eZE DATE OF OCCNRENCB On South Broadway (between Newell Ave. and Rudgear Road11-9-04 hrox. in Walnut Creek, CA 1.24 p CGICIdNSiAtiCES OF OCdJRRENC�(Uss back of Ibom.�necessay) s:D .a� C• i•a 3 See Attaohed Exhibit A G 610 . �f60T.S�G7tati DeXUPDON OF DAMAOFJPLJIJW ROSS AMOLW OF CUUM NM S 0 000.00 DIM=suPvMM POCIIME M&0 bst eorchn bvolm ata 6 POLICE DEPAMURff(if OPOIC t4) N OWM RIDRNER OF V6H=LE0 Of applicable) 7 NSA YOUR VEH= YEAR nWE MODEL uce�sE PT A N/A N/A NAMES OF ESMUD EMPLOYEES INVOLVED Of known) Unknown r 68m VVRIW OR IMMPUM MAIC COLOR Otte) Unknown Unknown Unknown u=Own JOHN N. ANTON, Boxer & Gerson, 300 Fra gawa Plaza, uite 9 Oland, CA 94612, attorneys for Juana ilian Arias 510-835-8870 SIGN/WRE OF CLA"T DAZE N017C�: .Posum f to gdve mneef cods swAan 41 14 you Awa A tawtfhs to the a ebhn for ded$ptrSMW 100%or psrsoear pmpwfy. AND ftolott72oftheA"at Code pmWdas;'EvayPMM*0h jwt*d*004pnssrrbfWOBOWMWortorpWMM tfoctysloi.bona! or cNesr,at lo any eouift d*ae dis dd bowd or offer,and mimd too"wpay the saeta#90nahte,any 1*9 or ?e,bip,adeesed:roruhsr.or is pwftsAebh o9Asr by 8gprbtarunsaf fp the oowtty Jct!fw d period et not more Phan ons yedrbyafltrs Ohlotexcesd>�otteth�.d(41,00D),orbybothwehdttprlsaatterttondtteo,o►byb>�attnsrdin Brsshdepruor by a(Ins of t►df snesdiv ton thotrsaod(S 1gx1%wby both soft bnprtsomwnt and ffne.' Mm-6M i EXHIBIT A ATTACHMENT TO CLAiM AGAINST EBMUD JUANA LILIAN 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 Projet:t CProject"). The Project involved installation of a water pipeline('EBMUD PipellrW).and is more particularly described http:/Avww.ebmud/comhvater SLenvfrgnmenftater supplyieurrent Xojectw0wainut creek san ramon _ 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 EBMUD Pipeline. Matamoros Welding employed Victor Javier Rodriguez,born 8/13/1978, as a welder. On November D.2004,Victor Javier Rodriguez 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 Creep California. Near td where Victor Javier.Rodriguez was working,a backhoe operawr 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(RKinder Pipeline')lay immediately adjacent to the EBMUD Pipeline trench. The Kinder Pipeline was at all tunes an underground utility transporting flammable material.consisting of gasoline,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 flammable material within to escape. The flammable material ignited, killing Victor Javier RodridLez. The events are further described at http_/www.ebmud.comwater_&environment ater suppiyicurrent—pmojectsMralnuL creek sar_reman__valley/default/h#rn#Navember_9 1 4. DESCRIPTION OF DAMAGES/INJURIES/LOSS _ At the time of his death on November 9,2004,Vidor Javier Rodriguez was the domestic partner of claimant Juana Lilian Arias,bom 915/•1979. Victor Javier Rodriguez was the father of claimants Adrian Crlstine Rodriguez Arias, born 9126/2001,and Alegandra Stephanie Rodriguez-Ades, born 812112003. He also financially supported his dependent mother,Alicia Rodriguez Claimants assert that i6 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 perform the work on tha 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 IQnder 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 endange ft the safety of the public and triose 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 EBMUD Pipeline; ♦ fatted to obtain the proper pennits 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 IQhder Pipeline to a location away from the immediate vicinity of the Project; 2 - x ♦ 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 i0nder Pipeline to the vicinity of the Project; ♦ failed to proceed, and require Mountain Cascade and others including Kinder Mongan Energy partners, L.P.,to proceed,with the work around the iGnder Pipeline through safe and acceptable means; ♦ failed to conduct,and require Mountain Cascade and others Including Kinder Morgan Energy Partners to conduct,dairy inspections by a competent individual prior to the start of work and as needed throughout the shift for evidence of a s€tuation 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 Kinder Morgan Energy Partners to remove,Individuals working on the Project, including Victor Javier Rodriguez,deceased,from the hazardous area until necessary precautions had Ibsen take to ensure the safety of those Individuals,including Victor Javier Rodriguez,deceased. Claimants assert that EBMUi7's negligent wrongful conduct was a substariffal factor in bring about personal Injuries to and the death of Victor Javier Rodriguez. Victor Javier Rodriguees 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 danth of Victor Javier Rodriguez His dependent mother,A cla Rodriguez,has a claim for compensatory damages as well. Claimants assert all such claims against,among others, EBMUD. DATED: April 9 2005 BOXER&GERSOK LLP By. JOHN M.ANTON Attorneys for Claimants 3 3 - EAST nay MUNICIPAL i rwry DISTRICT April 28,2005 John M.Anton Boxer&Gerson 300 Frank R.Ogawa Plaza,Suite 500 Oakland,CA 94612 RE: EBIVXM Claim Na 04/270 NOTICE OF REIEC77ON OF CLAIM Of. Juana Ulan 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 Bay Municipal Utility Distdct bas been rejected in its entirety on this date. In comRliauce with Government Code Section 913,the following is quoted for your information: "'WARNING" 0 +� "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 L/ court action on this claim. See Govewment Code Section 945.6" `Tou 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(510)287-0167. sincmely, Rick Majora Risk Management Assistant EXHIBIT � DECLARATfONOF SERVIdE BX MAII. State of California County of.Alameda I am ernployed in the County of Alameda,State of California. I am over the age of 18 and not a party to the abov"utitled cause. My business address is: P.O.33ox 24455 Oakland,CA 94623-1055 I am familiar with the practice of East Bay Municipal T7tility District for collection,the application of appropriate postage and processing of cmespondance for maili gg with the United States Postal Service. Under that practice,correspondence is deposited with the United States Postal Semcc the mm e,day it is submitted for mailing. I saved tate foregoing document,ll'oticc of McWon of Culm,by planing a true copy thereof for collection and mailing,in the course of ordinary business practice,with other conupondence of Bast Bay Mlmicipal Utility District,located at 37511°i Street, Oakland,CA 94607,on May.,2005,=closed in a sealed envelope,with the postage thereafter properly applied and"prepaid,addressed as fbllows: John M.Anton Boxes do Oeraoit 300 Frank XE Ogawa Plage,Suite 500 Oaidand,G4 94612 I declare under penalty of perjury that the foregoing is true and correct. Executed this 2m'day ofMay,1005,at Oakland,Califoiaia. Rick Majora Punt or Type Name Signature ' r ��BAST BAY Mumciw urntTY DISTRICT May 2,2005 Ross Goldstein,Excess Claims AIGTS hmance 175 Water Strect,23ie Floor New York,NY 10038 RE., EN BUD Claim N%04/270 Walnut Creek,CA 11/9/04 Dear Mr.Goldstein: Enclosed is a claim filed by additional claimants,Juana Lilian Arias,et AL and Marilu.Angeles, is the above referenced file. The claim are for loss sustained in Walnut Creek as a result of your inmed's work under contract to But Bay Municipal Utility District(EBMUD� As previously acknowledged by you and under the terms and conditions of the contract between EBMUD and Mountain Cascade,Mountain Cascade agreed to indemnify,defend,and hold harmless BBMUD from claims of this nature. Therefore,this claim is being forwarded to AXOTS,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 Jobn M.Anton Boxer&Gerson 300 Frank H.Ogawa Plaza,Suite 500 Oakland,CA 94612 Bowles&Verna Mike Churobicb,AIMS Mountain Cascade na Ec WWNSMr.OAnAW.CA seeU4M.ran ME 400.1.ESMUb 982.1 1 /AWATTORNEY OR PARTY wITHOUT ATTORNEY(Name,state bar number,and address): FDR COURT USE ONLY k"FPREGORY W. MORENO, SBN 57844 MORENO, BECERRA, GUERRERO & CASILLAS A Professional Law Corporation 3500 West Beverly Boulevard Montebello, California 90640 �d�D TELEPHONENO: (323)725-09.7 FAX NO.(Optionaq: 11-10-05 E-LWL ADDRESS(OpdonaQ. ATTORNEY FOR Name:PLAINTIFF IGNACIO BECERRA K.TORRE,CLERK OF THE COURT NAME OF COURT:CONTRA COSTA SUPERIOR COURT SUPERIOR COURT OF CALIFORNIA COUNTY OF CONTRA COSTA-MARTINEZ STREET ADDRESS:725 COURT STREET BY: C.BRADY,DEPUTY CLERK MAILING ADDRFSs:725 COURT STREET cm AND ZIP cone MARTINEZ, CA 94553 BRANCHNAME MARTINEZ 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 Q AMENDED(Number): Type(check all that apply): Q MOTOR VEHICLExQ OTHER(specify): GENERAL NEGLIGENCE AND PER LOCAL RULE 5 THIS QX Property Damage Q Wrongful Death INTENTIONAL .TORT CASE IS ASSIGNED TO Personal Injury_ Other.Damages(specify):ExEMPLARY; DEPT 5 STRICT LIABILITY Jurisdiction(check all that apply): Q ACTION IS A LIMITED CIVIL CASE CASENUMBER:rltd C05-02077 Amount demanded 0 does not exceed$10,000 COS-02451 Q exceeds$10,000,but does not exceed$25,000 FX I ACTION IS AN UNLIMITED CIVIL CASE(exceeds$25,000) JCCP NO. .4433 ACTION IS RECLASSIFIED by this amended complaint Q from limited to unlimited Q from unlimited to limited 1. PLAINTIFF(name): IGNACIO BECERRA alleges causes of action against DEFENDANT(name):KINDER MORGAN ENERGY PARTRS, L.P. ; ET AL. 2. This pleading,including attachments and exhibits,consists of the following number of pages: r/l 3. Each plaintiff named above Is a competent adult a. Q except plalNlff(name): (1) Q a corporation qualified to do business in California (2) an unincorporated entity(describe): (3) L--J a public entity(describe): (4) M a minor Q an adult (a) Q for whom a guardian or conservator of the estate or a guardian ad[item has been appointed (b) Q other(specify): (5) [Q other(specify): b. Q except plaintiff(name): (1) [Q a corporation qualified to do business In California (2) [=) an unincorporated entity(describe): (3) 0 a public entity describe): (4) Q a minor an adult (a) Q for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b) Q other(specify): (5) [=] other(specify): Q Information about additional plaintiffs who are not competent adults is shown in Complaint—Attachment 3. Page t of� Form Approved(or Optional Use COMPLAINT—Personal Injury,Property Coda of Civil Pmcc*m,§42912 Judicial council of California S ulFor 7 saz.lilt[Rev.July 1,zoozl Damage,Wrongful Death P3 SHORT TITLE: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. 0 except defendant(name): c. Q except defendant(name): (1) Q 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. = except defendant(name). (1) Q 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): QXQ 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. ®Injury to person or damage to personal property occurred in its jurisdictional area. d. Q other(specify): 9.® Plaintiff is required to comply with a claims statute,and a. XQ plaintiff has complied with applicable claims statutes,or b. 0 plaintiff is excused from complying because(specify): 962.ftftiaev.Jmyr.NMI COMPLAINT—Personal Injury,Property Page 2of3 Damage,Wrongful Death SHORT TITLE:BECERRA v. KINDER MORGAN CASE NUMBER 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. = Motor Vehicle b. FR� General Negligence c. FI Intentional Tort d. = Products Liability e. Q Premises Liability . f. 0 Other(specify): STRICT LIABILITY FOR ULTRAHAZARDOUS ACTIVITIES 11. Plaintiff has suffered a. 0 wage loss b. loss of use of property c. ® hospital and medical expenses d. © general damage e. © property damage f. © loss of earning capacity g. FTJ other damage(specify): EXEMPLARY DAMAGES; PREJUDGMENT INTEREST AT 10% PER ANNUM ACCORDING TO PROOF 12. = The damages claimed for wrongful death and the relationships of plaintiff to the deceased are a. 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 Injuryor wrongful death): (1) 0 according to proof (2) 0 in the amount of:$ 0.0 0 15. = The paragraphs of this complaint alleged on Information and belief are as follows(specify paragraph numbers): Date: NOVEMBER 9, 2 0 0 5 GREGORY W. MORENO (TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY) 91111(1)1Rev.July 1.20021 COMPLAINT—Personal Injury,Property Pa9e3af3 Damage,Wrongful Death MC-025 SHORT TITLE:BECERRA V. KINDER MORGAN CASE NUMBER 1 ATTACHMENT(Number):5 Page of 7 (Phis 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 9 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. IMP 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") . IMP 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 2t) 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 concerns is made under penalty of perjury,all statements in this Attachment are made under penalty of perjury.) Form Appmved for COdanel Use ATTACHMENT Cal.Rules of Cour,rule gaz Judklal Calrmll of Calgomla MC-025(New July 1.20021 to Judicial Council Form MC-025 0. SHORT TITLE:BECERRA v. KINDER MORGAN CASENUMBER' 1 ATTACHMENT(Number):5 Page 15 of?) (This 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 g 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 KM=. 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 "COMFORCE") 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 1027 (If the-item that this Attachment concems Is made under penalty of perjury,all statements In this Attachment are made under penalty of perjury.) Farm Approved for opllonal use ATTACHMENTcal.Was of Cou4 Fula 9e2 Judldaf Counclf of CalUomfa - MC-M INewJuly 1.2002) to Judicial Council Form MC-025 Jill=SHORTITLE:BECERRA 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 11013 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 23 of them, have permitted assets to be transferred between themselves without 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 27 (If the Item that this Attachment concems Is made underpenalty of perjury,all statements In this Attachment are made under penalty of perjury.) Form Approved for Optional Use ATTACHMENT Cal.Rules of Courl,nits 982 JWW41 Council of California MGOM[New July 1,28021 to Judicial Council Form MC-025 (.� SHORT TITLE:BECERRA v. KINDER MORGAN CASE NUMBER: 1 ATTACHMENT(Number):5 Page 7 01 (This Attachment may be used with any Judicial Council form.) (Add pages as required) 2 fiction of the separate existence of IMP, 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 16 19 20 21 22 23 24 25 26 7 (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 Approved for optional Use ATTACHMENT Cal.Rules of Cm4 rule 962 Judicial Council of CalifoMa MG-M INew July 1.20021 to Judicial Council Form Adbk SHORT TITLE: case NUMBER: BECERRA v. KINDER MORGAN FIRST CAUSE OF ACTION-General Negligence Page $ (number) . 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 1to 2 n 0__ 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 (descmlption of reasons for liability}: SEE ATTACHMENT ENTITLED "FIRST CAUSE OF ACTION" ` Fonn Appmved by the T��1 JudldelcooncilofCOB 0Mla CAUSE OF ACTION-General Negligence 11� CM 425.12 t]ledlve Jammy 1.11982 Soil Ph-is I15' RUIe OM1(3) C{� Opllonel Form 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 BECERRA 6 further alleges: 7 3 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 T3 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 Partners,L.P.,et al. I 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 fol 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 Modern 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 Complaint Ignacio Becerra►.Kinder Morgan Energy Partners,L.P.,et al. I r� 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 EBMLID 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; 11 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 I 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 1 to 200,inclusive, and each of them,knew,or in I 1 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 15those 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 1 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 I 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 Kinder Morgan Energy Partners,Z.P.,et al. I 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 1 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, 1 I 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 1 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 TBCCR 1511(b)SAFETY PRECAUTIONS 26 Date by which violation must be abated: 11/09/2004 27 Proposed penalty: $6750.00 28 Complaint. Ignacio Becerra v Kinder Morgan Eirergy Partners,L.P.,et al. 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 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 Carollo Engineers PC and 3 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 1 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: CaroIlo 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 1511(b)SAFETY PRECAUTIONS 22 Date by which violation must be abated: 11/09122004 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. 1 Carollo Engineers PC was aware of the incursion of Kinder Morgan Energy Partners LP's 10-inch 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-inch High 7 Pressure Petroleum Line which resulted in the death of 8 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 I 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 18 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 25 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 29 serious injury of four other employees.Kinder Morgan Energy Partners LP's Complaint Ignacio Becerra v Binder Morgan Energy Partners,L.P.,et al. 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 TBCCR 151 1(6)SAFETY PRECAUTIONS 8 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 15 A-2-a and b of the.Appendix. 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 21 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 25 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. ,)g Complaint - Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,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,Plaintiff IGNACIO 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 14 owned,controlled,operated,maintained,inspected,distributed,transported,located, 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 21 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 Complaint Ignacio Becerra v.Kinder Alorgan Energy Partners,L.P.,et at. I r 1 I 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 each of them, were willful,wanton,malicious,despicable,oppressive and/or 6 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 I to 200, inclusive, and each of 16 them,performed work on the Project with a reckless indifference and willful and 17 18 conscious disregard for the rights of Plaintiff. 19 17. PlaintiffIGNCIO BECERR A is entitled topunitive 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 rr 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%.Kinder Morgan Energy Partners,L.P.,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 14 Proposed.penalty:$6750.00 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 27 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 Kinsler Morgan Energy Partners LP's I O-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 Complaint Ignacio Becerra v Kinder Morgan:Energy Partners,L.P.,et A 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 1 Type of Violation: SERIOUS 7 TSCCR 1511(b) SAFETY PRECAUTIONS 8 Date by which violation must be abated: 11/09/2004 Proposed penalty: $22500.00 9 10 Prior to the presence of its employees, the employer shall make a thorough survey of the I 1 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 is the proximity of the two lines. Carollo Engineers PC reviewed the pot-holing data 19 derived from the field data 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 94596 27 28 Citation 1 Item 1 Type of Violation: SERIOUS WILLFUL TSCCR 1541(b) (1)UNDERGROUND INSTALLATIONS Complaint - Ignacio Becerra P.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 8 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 1.1 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 18 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 1 TBCCR 1511(b)SAFETY PRECAUTIONS Date by which violation must be abated: 11/09/2004 27 .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 Parti:ers,L.P.,eta[. I I 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 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 an 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 I? this Complaint,at paragraph 11. 13 14 15 16 17 18 19 20 21 22 ?3 24 25 26 27 28 Complaint Ignacio Becerra v Binder Morgan Energy Partners,L.P.,et A SHORT TITLE: CASE NUMBER: BECERRA v. KINDER MORGAN THIRD CAUSE OF ACTION-General Negligence Page a3 (number) 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): COMFORCE TECHNICAL SERVICES, INC. ®Does �_to ;nn 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. at(place): WALNUT CREEK, CALIFORNIA (description of reasons for liability): SEE ATTACHMENT ENTITLED "THIRD CAUSE OF ACTION" Form Approved by the Juddwcotouncttofcatlfomte CAUSE OF ACTION-General NegligenceC+ ccaazs.12 Effecllve January 1,1982 S U A5' Rule 98-1(3) Q.Z Pus CpHanW Form THIRD CAUSE OF ACTION I (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 cane with regard to ownership,supervision,control,surveying, and operating the 11 hinder 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 I 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 location 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. I I� 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 i 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; 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 Coneplaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et at. I 1 94596 Citation I Item 1 Type of Violation: SERIOUS TBCCR-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 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 18 location of the l 0-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 74 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 v Kinder Morgan Energy Partners,L.P.,et al. 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 9 the proximity of the two lines.Carollo Engineers PC reviewed the pot-holing data 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 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 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 Partneri 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 3 beached on November 9;2004 which resulted in the death of five employees and the 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 1 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 1 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 11lorgan Energy Pardiers,L.P.,et at. I r 1 WHEREFORE PlaintifflGNACIO 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 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint Ignacio Becerra v Kinder Morgan EnerVParbiers,L.P.,et al. I SHORT TITLE: CASE NUMBER: BECERRA v. KINDER MORGAN FOURTH CAUSE OF ACTION-General Negligence Page_ tnun"I ATTACHMENT TO ®Complaint I]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 7 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 Ilabfli4j: SEE ATTACHMENT ENTITLED "FOURTH CAUSE OF ACTION" For,Approved DY the Q�IVCeouJ��C'.alllfeozle CAUSE OF ACTION-General Negligence S��� CCP425.12 pule 982113) Optional Fern SHORTTITLE: BECERRA v. KINDER MORGAN CASE NUMBER: FOURTH CAUSE OF ACTION-Premises Liability Page 3 (number) ATTACHMENTTO ®Complaint Cross-Complaint (Use a separate cause of action form for each cause of action.) Prem.L-1. Plaintiff(name): IGNACIO BECERRA 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. 0 Count One-Negligence The defendants who negligently owned, maintained, managed and operated the described premises were(names): p Does to Prem.L-3. 0 Count Two-Willful Failure to Warn [Civil Code section 846] The defendant owners who willfully or maliciously failed to guard or warn,against a dangerous condition, use, structure, or activity were (namesr M Does to Plaintiff, a recreational user, was p an invited guest p 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 ®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. Prem.L--5. a. ® Allegations about Other Defendants The defendants who were the agents and employees of the other defendants and acted within the scope of the agency were(names): ®Does 1 to 200 h. p The defendants who are liable to plaintiffs for other reasons and the reasons for their liability are O described in attachment Prem.L-5.b C] as follows(names): Form alcounDV�bY�e CAUSE OF ACTION- Premises Liability CCP42FLIZ Judicial council W Cellromie C�++ . Effective January t,1992 sou S- Rule 982.1(5) I�P Optional Form 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, 5 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, 11 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 I 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 Connplaint Ignacio Becerra+.Kinder Morgan EnerV Partners,L.P.,et al. 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 12 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; Complaint Ignacio Becerra P.Kinder Morgan Energy Partners,LP.,et.at. I I b. 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; 8 . 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 18 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 Ignacio Becerra v-Kinder Morgan Energy Partners,L.P.,et at. I I (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 Inspect-ion'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 T8CCR 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. Complaint Ignacio Becerra v Kinder Morgan Energy Partners,Z.P.,et al. I 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 data 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 1014 Inspection Site: 0.5 MI S of S.Broadway and Newell Ave.,Walnut Creek, C 15 94596 16 Citation 1 Item 1 Type of Violation: SERIOUS 17 TSCCR 1511(b)SAFETY PRECAUTIONS Date by which violation must be abated: 11/09/2004 18 Proposed penalty: $22500.00 19 20 Prior to the presence of its employees,the employer shall make a thorough survey of the 21 conditions of the site to determine,so far as practicable,the predictable hazards to 22 employees and the kind and extent of safeguards necessary to prosecute the work in a 23 safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix. 24 Carollo Engineers PC was aware of the incursion of Kinder Morgan Energy Partners 25 LP's 10-inch High Pressure Petroleum Line into East Bay Municipal Utility District's 26 Walnut Creek project as evidenced by drawings created by Carollo Engineers PC. 27 Carollo Engineers PC failed to evaluate the need for re-design at the time of discovery of 2$ the proximity of the two lines. Carollo Engineers PC reviewed the pot-holing data Complaint Ignacio Becerra v.Kinder Morgan Energy Partners,L.P.,et al. I 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 10-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)(])UNDERGROUND INSTALLATIONS 11 Date by which violation must be abated 11/09/2004 12 Proposed penalty:$70000.00 13 0 14 The estimated location of utility installations,such as sewer,telephone,fuel, IS electric,water lines,or any other underground installations that reasonably may 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 Z0 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 24 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 Complaint Ignacio Becerra a Kinder Morgan Energy Partners,L.P.,et al. I r� 1 94596 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 9 prosecute the work in a safe manner in accordance with the relevant parts of Elate A-2-a and b of the Appendix. 10 11 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 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. 29 23 24 25 26 27 28 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,LP.,et aL I SHORTTITLE: CASr=NUMBIM BECERRA v. KINDER MORGAN FIFTH CAUSE OF ACTION-General Negligence Page 39 (nurnber) ATTACHMENT TO ®Complaint OCross-Complaint (Use a separate cause of action form for each cause of action.) GN-1. Plaintiff(name): IGNACIO BECERRA alleges that defendant(name): CAROLLO ENGINEERS; CAMP, DRESSER AND McKEE, .INC. ®Does 1 to 2D0 was the legal(pro)imate}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 liability): SEE ATTACHMENT ENTITLED "FIFTH CAUSE OF ACTION" Farm pprov Aed by the cdd JualCouncilofCalllomla CAUSE OF ACTION-General NegligenceCCP 425.12 afad .Sive January 1,1882 u rns, Flula sB2.1(3) Qt Pus Optional Form 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 I to 200, ari 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 l 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 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al. I 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 25 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 Ml S of S.Broadway and Newell Ave.,Walnut Creek, C Complaint Ignacio Becerra v.Kinder Morgan Energy Partners,L.P.,et al. 1 94596 Citation 1 Item 1 Type of Violation:SERIOUS TBCCR 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 10-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 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 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 Complaint Ignacio Becerra i.Kinder Morgan Energy Partners,L.P.,et al. 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 Carollo Engineers PC was aware of the incursion of Kinder Morgan Energy Partners 6 LP's I0-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 con-flict. 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 22 rr 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 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.,of al. I 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 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 1511(b)SAFETY PRECAUTIONS 12 Date by which violation must be abated: 11/09/2004 13 Proposed penalty;$70000.00 14 15 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 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 l 0-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 a Kinder Morgan Energy Partners,LA,et a! 1 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. 3 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 Complaint Ignacio Becerra v.Kinder Morgan:Energy Partners,L.P.,et al. l SHORT TITLE: BECERRA v. KINDER MORGAN CASE NUMBER: SIXTH CAUSE OF ACTION-Intentional Tort Page Inurnber) ATTACHMENT TO ®Complaint 0 Cross-Complaint (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 2 n n 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(placer WALNUT CREEK, CALIFORNIA (description of reasons-for liability): .SEE ATTACHMENT ENTITLED "SIXTH CAUSE OF ACTION" FoalCoundlofhe CAUSE OF ACTION-Intentional Tort ccP425.12 Jur9dd ApprovedCouncil of CaliforniaCe Ellaalve January 1,1982 S U S' Rule 9921(4) (?,k P Optional Form 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. f 1 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 11 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 Partners,L.P.,et ab I 1 operations,he did not review and verify by use of drawings and pipeline. 2 locating 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,willfiil, 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 v Kinder Morgan Energy Partners,L.P.,et at. 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 28 Complaint Ignacio Becerra v Kinder Morgan Energy Partners,L.P.,et al. I 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. A-11 8 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 1 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 making individuals 27 28 Conrplairrt Ignacio Becerra v Kinder Morgan Energy Parh:ers,LA,et al. I 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 Modern Continental Co.,which 5 6 contract was later terminated by EBMUD. The KM Defendants and DOES 1-200,an 7 each of them,knew that in or about 2003 or 2004,Modem Continental Co.was 8 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.Modem 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,Modern 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 Entergy 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 PLAIN=,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 42.At all times herein mentioned,the KM Defendants,and DOES 1 to 200,and each of 12 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.guider Morgan Energy Partners,L.P.,et at. I properly and accurately mark the specific area where the Kinder Pipeline 2 intersected with the area of excavation for the EBNM 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 lg 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 EBN= 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 Kinder Mot-gait Energy Partners,L.P.,et al. I 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 EBMM Pipeline path that 5 6 it had properly and correctly placed-field markings so as to represent the 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 12 Pipeline,that said persons excavating need only follow the field marking 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 at. � 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 1 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 BBMUD Pipeline; and failing to 7 properly and appropriately inform and communicate to workers on the 8 Project appropriate knowledge and warnings concerning the location of 9 the Kinder Pipeline, and the dangers related thereto which they might 10 encounter; 11 12 1. Improperly failing to provide necessary safeguards to those workers so as 13 to prevent breach of the petroleum line during the progress of the work; 14 M. 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 lg n. 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,LP.,et aL I� 1 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 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) 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 labor 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 line by himself in preparation for the upcoming fiber optic relocation work 9 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,marking 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 19 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(KMEP),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 Complaint Ignacio Becerra Y.Kinder Morgan Energy Partners,L.P.,et al. 1 Warner 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 KMEP 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 was 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 aL I weather had been very rainy)or yellow flags.The markings C&S followed 2 were KMEP Line Markers placed in the GSUC potholes.KiVIEP 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:"Prior 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 26 that the Line Markers were directly over the petroleum line and that the 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 Kinder Morgan Energy Partners,L.P.,et al. l� 1 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 walls 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 g 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 Marls 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 Complaint - Ignacio Becerra v Kinder Morgan.Energy Partners,L.P.,et al. 1 verification of the petroleum Iine 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 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." 13 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 v.Kutder 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 6 Cascade,Inc.,Operator.The driver of the truck was not observed." 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 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 i9 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 v.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 11 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 Consplaint Ignacio Becerra v.Kinder Morgan Energy Partners,LP.,et al. 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 Plaintiff IGNACIO 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. I f� 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 Complaint Ignacio Becerra v.Kinder Morgan Energy Partners,LP.,et al. I f 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 ' 51.All of the conduct alleged in this cause of action constitute serious and willful 6 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. I SHORT TITLE: BECERRA v. KINDER MORGAN CASE NUMBER Exemplary Damages Attachment Page !o ATTACHMENT TOX[]Complaint C]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 malice Q fraud M oppresslon 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 areas 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. F-1 $ 0.00 Form Appmed by the EXEMPLARY DAMAGES ATTACHMENTaCP425.12 Judicial Coundl of CalifamOn Enactive January 1.1982 JOU IlS� RomgMI(13) rkP as Optional Form 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 EBMUD 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 15 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 �4 PLAIN='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 v.Kinder Morgan Energy Partners,LP.,et al. i I 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 8 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 continued operation of the Pacific Operations unit would be hazardous to life, 15 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 full 20 awareness of all dangers to human life associated.with such accidents,the KMEP 21 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. 25 Instead,the KM Defendants and DOES 1-200,authorized or ratified such.conduct. 26 77 5. The acts herein alleged were either the acts of an officer,director or managing 28 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 I . 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 maximizing.their business interests,chose to authorize or ratify said conduct. 6 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,LP.,et at. I I Michael D.Michel,Esq. (SBN 06213 1) Jeff M.Fackler,Esq. (SBN 142101) 2 MICHEL&FACKLERCENMMM17 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;.CLERI(OF THE COURT 5 SUPERIOR COURT OF CALIFORNIA Attorneys for Plaintiffs COMM OF.CONTRA COSTA•MARTWEZ 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 1 l 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.(Alameda 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. COS-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 lain! or Dama es or Negligence,et al.-JURY TRIAL DEMANDED Page 1 P f 8 .f a8 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 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 seq.On or about May 16,2005,EBMUD rejected plaintiffs' 27 claims in their entirety. 28 8. On November 8,2005,plaintiff THE CHABOT LIVING TRUST OF ENOS N. First Amended Complaint for Damages for Negligence,et at-JURY TRIAL DEMANDED Page 2 I 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. 11 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 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.("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.("KMGP")is,and at all times relevant l� First Amended Complain[for Damages for Negligence,e[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 I 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 al.-JURY TRIAL DEMANDED Pae 4 8 g I business of planning,designing,owning,supervising,controlling,and constructing the Project. 2 20. DOES 51-100,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), 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 301-400,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 TRML DEMANDED Page 5 i 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 11 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 15 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 101-150 have permitted assets to be 19 transferred among themselves without adequate consideration;(e)KMI,KIvIEP, 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, First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED 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 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,Modem Continental,EBMUD,KMI,KMEP, First Amended Complain!for Damages for Negligence,el al.-JURY TRIAL DEMANDED Page 7 1 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 I- 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,Modern 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 Modem Continental,EBMUD 28 and DOES 1-50 contracted with,among others,MCI and DOES 5I-100 to complete construction 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,K1vII,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. 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 Norther Pipeline on South 28 Broadway,between Newell Avenue and Rudgear Road,in Walnut Creek.This work was first 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 51-100 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 11 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,KMEP, 28 SFPP,KMGP and DOES 101-150,and each of them,ruptured in a residential subdivision in First Amended Com loin! or Dama or Negligence,et at-JURY TRIAL DEMANDED o r �s lir gg Page 10 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,KMGF 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 KMEP,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 10 First Amended Complaint for Damages for Negligence,et al-JURY TRIAL DEMANDED Page 11 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 fie 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 fo 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 for Negligence,et al.-JURY TRIAL DEMANDED Page 12 • 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. 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 d-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,COMFORCE,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 (6 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,Modem 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 property 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 Com lain! or Dama es or Negligence,el aL-JURY TRIAL DEMANDED Pa D f g fSe 15 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 .11 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. Plaintiff's hereby incorporate by reference each and every allegation contained in First Amended Complaint for Damages far Negligence,eJ of -JURY TRIAL DEMANDED Page 16 s I 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 I I 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: 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 28 other authority to allow for work to be completed in the vicinity of the Kinder Pipeline and Firs!Amended Complaint for Damages for Negligence.et al.-JURY TRIAL DEMANDED Page 17 I Northern Pipeline; 2 (e) Negligently,carelessly and recklessly failing to require KMI KMGP,KMEP, 3 SFPP and DOES 101-150,to relocate the Kinder 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,andt 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 I I 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 6) 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,near 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; first Amended Complain!for Damages for Negligence,er al.-JURY TRIAL DEMANDED Page 18 i� 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 i First Amended Complaint for Damages for Negligence,et al,-JURY TRIAL DEMANDED Page 19 f� 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 First Amended Complaint for Damages for Negligence,et at..-JURY TRIAL DEMANDED Page 20 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 Northern 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 Northern 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, l! First Amended Complaint for Damages for Negligence,er at.-JURY TRIAL DEMANDED Page 21 a 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 I 1 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 s I 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 warn 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 1I 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 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,KMEP,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,etal.-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. t 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 i.� First Amended Complaint for Damages for Negligence,et at-JURY TRIAL 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 Iocation 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 F7►-s1 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. As a 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,loss 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 finther 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. Pirst Amended Complain!for Damages for Negligence,e!al.-JURY TRIAL DEMANDED Page 26 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 11 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 ultrahazardous 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 First Amended Complaint for Damages for Negligence,et 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 i 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 517100,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 Complain!for Damages for Negligence,el a/-JURY TRIAL DEMANDED Page 28 i� 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 their 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 (As 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. 24 124. At all times relevant herein,CDM,CAROLLO and DOES 1-50,inclusive,and each 25 of them,were engaged in the business of planning 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. 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 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. As a 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 Com lainl or Dama s or Negligence,e!al.-JURY TRIAL DEMANDED Pa P f Se ,fa 31 S 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. 11 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 KNIT,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. The real 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 KMI,KMEP,SFPP,KMGP and DOES 101-150,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-I50,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 1 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 20I-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 I I 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 Complaint for 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 fiirther 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 1 l 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 / / / First Amended Com laini for Dama es for Negligence,et al.-JURY TRIAL DEMANDED Pae 36 P 8g 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 hire and explosion which destroyed plaintiffs' 18 residence and real and personal property. 19 161. Plaintiffs are 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 al.-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 Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 38 I 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 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,IOU,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 al.-JURY TRIAL DEMANDED Page 39 i 1 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. 14 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 Iocation of Kinder Pipeline in the First Amended ComPlainffor Damagefor Negligence,et al.-JURY TRIAL DEMANDED Page 40 t� 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,et al.-JURY TRIAL DEMANDED Page 41 I Modem Continental,EBMUD,KMI,KMGP,KMEP,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- 11 operated or power-driven excavating equipment within the immediate vicinity of the Kinder 12 Pipeline and Northern Pipeline; 13 6) 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 KNfl,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; i Firs)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 Negligence,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 rec%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,CDM 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 51-100,as herein alleged. 8 WHEREFORE,plaintiffs pray for judgment against EBMUD,as hereinafter set forth. 9 THIRTEENTH CAUSE OF ACTION 10 DANGEROUS CONDITION OF PUBLIC PROPERTY 1 I (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 I-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 First Amended Complainr for Damages for Negligence.et at-JURY TRIAL DEMANDED Page 45 1 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 11 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 further 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 First Amended Complain(for Damages for Negligence,e{al.-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. As a 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 real 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 10 t-first Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 47 l� 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 1 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 tie 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 i� First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 48 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 1 I 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 1 through 219,as though fully set forth herein. 28 222. KMI,KMEP,SFPP,KMGP and DOES 101-150,inclusive,are in the business.of First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 49 1.� 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-I50, 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 1-100. 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 I I 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 4216.3;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 at-JURY TRIAL DEMANDED Page 50 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. KMI,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 of the general public,MCI,EBMUD,Modem 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 seq. 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 51-100 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 warn 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 l� 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 Article 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 First Amended Complaint for Damages for Negligence,ei al.-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 Iimited 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 Damages for Negligence,ei 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; I 1 (e) Negligently,carelessly and recklessly hiring MCI,a contractor known by 12 EBMUD and others,including KMI,KMEP, SFPP.KMGP,COMFORCE and DOES 51-200, 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 (j) Negligently,carelessly and recklessly failing to obtain the proper permits and First Amended Complaint for Damages for Negligence,et al.-JURY TRIAL DEMANDED Page 55 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,KMEP, i 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. First Amended Complaint for Damages for Negligence,et al.-JURY TRUL DEMANDED Page S6 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 I 1 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. First Amended Complaint for Damagesfor Negligence,et 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. Asa 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,plaintiffs 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: 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 I 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 14,2005 MICHEL&FACKLER A Professional Corporation 5 6 By 7 Mic e 2r.PAicWbl,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 ?. ,2005 MICHEL&FACKLER 16 A Professional Corporation 17 18 By Micac el,Esq. 19 Jeff V.Fa Mr,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 First Amended Complaint for Damages for Negligence,et at.-JURY TRIAL DEMANDED Page 60 I 9$2.1 M l(lIIIIIIIIIIIIIIIIIIlATTORNEY OR PARTY WITHOUT ATTORNEY(Name,state bar number,and ad"ss): FOR COURT USE ONLY l _Peter J. McNulty, Esq. (SBN 89660) McNulty Law Firm 827 Moraga Drive Los Angeles, CA 90049 TELEPHONE NO: (3 10) 471-2707 FAX NO.(Opfionet): (3 10) 472-7014 E-MAIL ADDRESS(OWional):Peter@mcnultylaw.com I� ATTORNEY FOR Name: PlalntlffS NAOF COURT:Superior Court of California, Contra Costa 11-10-OS ME STREETADDREss: 725 Court Street MAILING ADDRESS: K.TORRE,CLERK OF THE COURT CITYAND ZIP CODE: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; KMGP, Inc.; Kinder Morgan Inc.; East Say Municipal Utility District; Carollo Engineers; Camp, Dresser and McKee, Inc.; Comforce Technical Services, Inc. `) ®DOES 1 To 5 0 COMPLAINT—Personal injury,Property Damage,Wrongful Death n AMENDED(Number)-' First Type(check all that apply): U MOTOR VEHICLE MOTHER 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 CIVLL CASE CASE NUMBER: Amount demanded 1_— does not exceed$10,000 exceeds$10,000,but does not exceed$25,000 C-bS=b15?3 CX_J ACTION IS AN UNLIMITED CIVIL CASE(exceeds$25,000) ACTION IS RECLASSIFIED by this amended complaint 4433 (� from limited to unlimited �] from unlimited to limited 1. PLAINTIFF(name): Patrick Farley, Victoria Farley I i •:i alleges causes of action against DEFENDANT(name):Kinder Morgan, Inc. , et al. 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) a corporation qualified to do business in California (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 (b){_} other(specify): (5) [ other(specify): ' E b. = except plaintiff(name): (1) C;I a corporation qualified to do business in California (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[item has been appointed i (b)Cl other(specify): I (5) (_-] other(specify): { is (J Information about additional plaintiffs who are not competent adults Is shown in Complaint—Attachment 3. Pape 1 of 1 Foam Approved for Optional Use Code of Gvil Procedure.§425.12 I ,wdttlal Coundl olCaltlomie COMPLAINT—Personal Injury,Property eel-+(+)[Rev.July 1.20021 Damage,Wrongful Death s , us `hacjs- V O�A 1J*0d&5-7G9 r ORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et al. SE NUMBER: 7 C 05-01573 4. [-- 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. C) except defendant(name):Mountain c. Q except defendant(name):East Bay Cascade, Inc. (hereinafter "MCI") Municipal Utility District (hereinafter "EBMUD") (1) a business organization,form unknown (1) 0 a business organization,form unknown (2) a corporation (2) a corporation (3) an unincorporated entity(describe): (3) an unincorporated entity(describe): (4) �7 a public entity(describe): (4) [X a public entity(describe): A public utility district (5) [_]other(specify): (5) 0 other(specify): ff I;. 1: b. FYJ except defendant(name): Kinder Mountain d. n except defendant(name): Carollo Energy Partners,L.P (hereinafter Engineers, PC (hereinafter "Carollo") "KMEP") (1) [%J a business organization,form unknown (1) =a business organization,foram unknown (2) a corporation (2) FT a corporation (3) an unincorporated entity(describe): (3) 0 an unincorporated entity(describe): (4) C'j a public entity(describe): (4) a public entity(describe): (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. 7.0 Defendants who are joined pursuant to Code of Civil Procedure section 382 are(names): 8. This court is the proper court because a. 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. [JE] injury to person or damage to personal property occurred in its jurisdictional area. d. other(specify): I t E 9.F2] Plaintiff is required to comply with a claims statute,and F a. [X] plaintiff has complied with applicable claims statutes,or b. [--1 plaintiff is excused from complying because(specify): I 982.1(1)(Rev.July 1,20021 COMPLAINT-Personal Injury,Property Page 2 of s Damage,Wrongful Death MC-025 SHORTTITLE: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 g 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 j 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 f 26 (!f the item that this Attachment concerns is made under penalty of penury,all statements in this Attachment are.made under penalty of perjury.) Form Apprmed for OpfiorW Use ATTACHMENT cal.Rues of coat rule W2 Judicial council of caldo"a MCO25[New July 1.2W21 to Judicial Council Form E 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.0 Motor Vehicle b. ® General Negligence c. FX Intentional Tort d. Products Liability e. Premises Liability f. Other(specify): 11. Plaintiff has suffered a. wage loss b. loss of use of property i c. hospital and medical expenses d. general damage e. Q property damage I. K j loss of earning capacity g. n otherdamage(specify): Loss of Consortium, Victoria Farley 12. Q The damages claimed for wrongful death and the relationships of plaintiff to the deceased are a. [] listed in Complaint—Attachment 12. b. as follows: I 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) CE compensatory damages (2) CX 1 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) in the amount of:$ 15. �J The paragraphs of this complaint alleged on information and belief are as follows(specify paragraph numbers): (i Date: �`.. c) t �r ,,& eter J. McNu yt , sq.E , J (TYPE OR PRINT NAME) I TU OF "NTIFF OR ATTORNEY) i 9W.1(1)[Rev.J*1.2W21 COMPLAINT—Personallnjury,Py P'0°'°r' ro ert Damage,Wrongful Death ! r HORT TITLE: use NUMBER TFarley, et al. v. Kinder Morgan, Inc., et al. C 05-01573 First CAUSE OF ACTION -General Negligence Page 4 mull ATTACHMENT TO M Complaint OCross-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. [)Does 1 to 5 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 �((. f 1 Form Approved W he "Iciai cowl of California CAUSE OF ACTION-General NegligencecCp 425.12 II Effective January 1.1982 U S' Rude 982.1(3) [ S Oplionat Form "qWP[SHORT TITLE: 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 survey of the conditions of the site to determine, so far as practicable, the 414 predictable hazards to employees and the kind and extent of safeguards necessary to i 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 verified pleading) The items on this page stated on information and belief(specify item numbers, not line i numbers): This page may be used with any Judicial Council form or any other paper filed with this court. Page_5_ Form Approved by the ADDITIONAL PAGE ' Judicial Council of California Attach 1 19871 Attach to Judicial Council Form or Other Court Paper $pfu� CRC 201, 501 g- Optlanel Form S F 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 T8CCR 1511(b) SAFETY PRECAUTIONS Date by which violation must be abated: 11/09/2004 14 Proposed penalty: $22500.00 i 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 i 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 this court. page 6 Form Approved by 9.0 ADDITIONAL PAGE Judicial Council of California Attach to Judicial Council Form or Other Court Pa S0 PaperCRC 201.501 MC-020(New January 1.19871 �mus,Optial Forth i( 1 SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER: al. 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 Prior to the presence of its employees, the employer shall make a thorough 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): This page may be used with any Judicial Council form or any other paper filed with this court. page Form Appro"d by the ADDITIONAL PAGE Judicial council 01 California Attach to Judicial Council Form or Other Court Paper SU u ' ns, CRC 201.501 MCA=New Januaryt 19871 . Optional Form S t SHORTTITLE: Farley, et. al. v. Kinder Morgan, Inc. , et CASENUMBER: al. C 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 TSCCR 1541(b) (1) UNDERGROUND INSTALLATIONS 12 Date by which violation must be abated: 11/09/2004 Proposed penalty: $70000.00 i j 14 The estimated location of utility installations, such as sewer, telephone, fuel, i 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 i 17 opening the excavation. j I 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 thiscourt.J PageA_ Fpm Approved by the ADDITIONAL PAGE dtedal Camdl of CalftMaCRC 201.501 MC-M[NewJanuwy 1 1987] Attach to Judicial Council Form or Other Court Paper SO� n.T Oodwal Fpm SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASENUMBER: '1110al'. C 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 T8CCR 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 44 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 i 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 24 assure that the utility was clearly marked which would have resulted in its 25 relocation or other appropriate measures to safeguard employees. r 26 (Required for verified pleading) The items on this page stated on Information and.belief(specify item numbers, not line numbers): *Fo=AWmedbytM ` Kis[ :pag:emay be used with any Judicial Council form or any other paper filed with this court. page g ADDITIONAL PAGE J aaal coiancil of Calirort isAttach to Judicial Council Form or Other Court Paper �S CRC 201,sol MC-020(New January 1,19871 OpOoml Forth $. f fr 05/04/2085 16:22 9161 42 SAC M s T PAGE 03 9tafe of Caubtuif Ies mdm Nasbet: 12S67Yi284 DWaim of Ooeopetioat Soft and OW& Pnpeet m Dalm I llWr20W- asVY303 Cd/0W+,Via*A 7lmmoft Of&x ro95Wl:4 7Z►Ismmatoe DWW OS1oSrM 2211 N&Towns task,fthe 2 M. So" 8actama�to,CA 93Ets Opdoeet Inipeetiaa Nbn 037.4)5 Catidot_ d Nva of Prnslty iJf�Nuc XDWM UDROAN ENERGY PARTHM LP Ia pKAm Mu 0.3 tdl S OF S WMADWAY AND NOWELL AVE.WAUW MEET,CA 94346 cbdm%Iem 1 I*of vmtdioot SC ous W'Nul TM 1511(b) SAFETY PRECAUTIONS Phot b the pReaeaoe of its amplvyecs,the a mpwyet AM xWz a&icaa6h au my of dtt Commcm of the rile to defettolm,so fit a p mcdc b.dire pter11- t' bxcw a to ampbyoa aid dot kk d mad eaf a of neoeasaty ti pcoeeans tie wo* a ea5te maaoer m aocot+droce.vi6 tba reietraat parts of Plate A-U wd 6 d the Appmdit. t;;iader warps Fmew Paftnas IF$W44ay m fidbd to ooea>tomierae d»pecdmPy if ddt 1044th FrlSb Ptesame Pet xk m We ii&*area of Suft.IW+1s of dm Eget IMF bivaicipd Uti iti Dhkwt Walmt Cmdt Pmject. t ubm so soft and pmvbdt to thost:hmobc d reralfed m do bceseb of the 1040nh NO Ptetease Pemdfmm Line of November 9,2004 wtiici ma*d in the defth of ft"mploym ad the a Wom WW of ttant odw=Wbyoes. Moder gwvm 8ne V Parmess L o eenpfoyeet:Brae-owe&at m vasafe can on termed ad Med to amum dot tlit utMiy teas cleartp uvIIEod which.vmM bras ceedeed to im fdoadoa or ober rppegadsoe mom mes to s10 ampi"- I Date By Which VWaam Mast be Abated: 21Ib9r�004 PMP=d P032hY= $ 710000.00 JU16L-2- INFORMALCO ERENCE AVA�tAM i CONTACT OIG&TUNREIMG OFFICE LISTED ON CITAMH 3cc pen t Ura o 4 are*C2=m aid lownfiaWmvt rwAkr lar ink 4119 a 0 P192M 7`•e*%ft m'O1&AftiR C"dW and MaNkxdm orpgmky Pqc 6 di OSRA-2 pbe.. 100489 OWB0/2M 16:22 9165, 42 SAC M 3 T PAGE 02 koft Of Norsk bsspcaflssi Nw.be:= 125678M Diwio.of OwWfiood S ft ad 1femM Lspmdm Didw I I/GVM- C MSHA bfi ft a Ttmftg Offim M95W1:40T2f b mmm Dmk-- aaMM 2.211 Yids T"im Ck*,Saite 2 M. S43#• Sw meati,CA 95213 Optbad bvudm Nbr:M-05 CloWn ad NgdlcWm of CM*wv Ps KBOA t WK)RAMN>GMGY PARTMM LP baspediaa Sites U ISH S OF S MOADWAY AMID NXWRM AVB.WALNUT CRF50>:,C11 94596 Q=IMlrem i TM of vlalsi m -Sedom wil N Tl=1541(bx1) UNDERGROUMD.MrALi.AMNS MW adrwsea bem&n of vb-ft bMB* M md<as acme-,WWbooe,fod,electric,Wates Hws�or my abe: nmdeS, buaMmkm 4M ressua ft mq be expec d to be aroo.rr Md dWbg aaa.Mion wad;,dwR be deamdoed prior to opetthz;the Pile -Itos. B'mdet Morph Energy Pesmees Ll"s aaplo)eea bibd to defesmtse by nq m. 14 mtibod Ibis atisabe d btatloa of t6a 10-fadr E1i�Psa�v Peftakm Iht is de was of Maim 100+15 pans to to Opmit of en axavatloa to handl a wnuRm whidr was b dose pgmdmbj a l oder Marra Pherp Poftm LP's 10-W& H%b Prue Pettobx ma 13oe. An a msdt,do 104wh Fffo Pmdare PWdeam Lias was hacbcd on Novm*u 9,2004 whkb mmdkd is the deal of fife mpk7m mi Me aedm W)MY of Barr a6er wwby=L Kiadar Motpn BmKV PwMm LP's mapioyms was-wase dud su vmaa6e 000&dm cdomd and Mato assure da t ft�war d oft madmd whlci would IIrn tesvl0ad®ifs rclontlom at ad= msdatm - D=By WhWh Vbbdon hfwA be Abated: 1 U09V M Propowd Penalty_ $ 70000.00 See pale,f ercvath I of 4M CiMw and Nodficaim of Penny ar of.uctoe co Gaya and mooym nes xM erapwm&Hld=. C mom=4 mook+tiw d rmakiI Far S d 6 OMA-Z Ater.M k t 100490 i (� 2W0412085 16:24 4161 AT SAC M A T PAGE 02 Sate of caffavia xmar: t23678342 DbWom of Oowptiooal SF*W and HaM Mom 12101r.M-t4fQW3= CAMSHA W.&t a Tmh>;OMm PSOGS1ADM hmmm Ds1e: 03106fM 2211 RettToww Ordq Salve Z C&io IDs 543" Seaameafo�G 95at3 Ordottd Lsped m MM:W45 Casapea Nina GAROLLO bIi(i>t1 MS PC taa�tfl.s ars; 0.3 bra 9 OF BROADWAY AND NEWELL AVE.WALNW CRBM CA 943% C 1 Item 1 'type of vlotatioa Serious TS=151l(b) SAFETY PRECAUTIONS Poor q 60 peestnoe at in em playres,ebe employs*so nuke s ouroup mrvep of the coodirim Of da An w dsttm as far as Practicable,die profflzabte bawds a en Upw sed the kbd ad edeas o[=AWW s W=NKy to proascass ow wort in a ph ansaaer is a000rdanot wh>;the lelevadt paras of then A-2-4 ad b of �Appsmdix. . cuvno 6arideess PC waft swam of tie hcml im of rmda mogpa£mstsy P4ittwo Lrd 1043*Plies Pomo Peavlatot Use into flat Bay HVd* t UMy Vbbia's Wdmd Creek PrDpm a evidenced by dtiweated by Cassino 0 tlaeent PC. Caraifo Eedimeen PC Shed to eIfte OW lot«tdaija at CS the time of discovery of the ptaadmhy d the two Nara. m %Bn�Oeers PC ie.iewed Sr PO"aft data I� doiivt+d frost the iM3d data tsd Sited to adidreaa the utit�data its�ridai4Y of die offset sR 9astloa 100+is of Poe Kiadr tdatsao SmeW Pwmm LP's 104=&Higi Prcum Pcholmn Leo zeaiteod in the dcab of fns cufkwm and the sedm b*q or foss other employees. The po 4w ft data toviow dhaald Gave geoe:abed a tetpest for addidood dds at the pout of the closest aocf So: Date By Which V nolnd=Must be Ab=d: 111o9tm Pmpo"Penalty: S 22500.00 C-7 0A"6z RWOGMwr--Wm NORMAL CONFERENCE AVAP ABLE CONTACT MINING A TUNNELING OFFICE U00 ON CITATION S.r pyer t dream t at�'r Csrie.«.d IiodAallo.et Ploy k.-kA�..idp.as wopte��nd..�vet...ytr.st nppo�.+wrw. CWeion.no NatiRneioq of 14a� Ase i of s O�iA t ple..st9!) 100491 jf f / 06/64/2083 16:26 926; 342 SAC M 2 T PAGE 02 slate of caftevia 4epedfm Noabet: 12$673M Davar w of Ocmpdimd Soft sed Babb Itorm aw lemma 11"w"-e75+OC4!m CtdIOM Mbit t IUNWtg Office(09JMI 4071)1'aomm DatC 05J05 M 7211 Pett Towne Cbck,3*&2 M. 54344 Sacram M.CA 95813 Opdcad Lsperr1 Nbn QZM auft Bad Nolf&3dm of Pmalhr C1 mvago Moo= MOUNTAIN CASCADE INC bspKdm ffiw 0.5 Ml S OF&BROADWAY Aim NEWELL.AVE,WALNUT CUM CA 94595 cWoII i Item 1 Type of Vioinum. Serious TtCCA 1511(b) SAF16 Y MUCAUtTONS Prior to tie iR of hs emtQtofvM ebe employ=don mdm a&xwg�tmrvey of the amdldoas at to sae to deaoawbte,so for a pracdcd ls,eye praddsbae Itmrds n emplvyam and the kind arta cam of taftd=Rb !to proeea+a tae wodr a estt aoronrr is art�rtfmtx wkit dw rde.aat partes of!fate A-2-a and b of dta AppaWbL Afotmt;ia CtsAda Io-wa swan of the 6eandn of Hiwdri Mom=Emmy Puwm LP's 104wh K Pnaaare hack=Um info Esat Bay Mmg*d U01y District's Wahw Gant htf am Saga Bay Ubft Ditaact pmvided d mw by eo b%awft cacvdv loc. bdacaod is pcnooatt� aftats tufo K=& Motmtaio Cascade Tor.did wt tube a drama&mm7 or pmvW aeoumy>afcpwde a prevent the bract of the l0-ioch ifth 1ham Ptah w Line cc Novembet 9.2W4 whft nod in fire dweb of fiat ( =vloyoea and dtt micas iw my of Pony odser emptoym. � �1F� • Dale Ely Which Violation Moat be Abated: 11/09/ 004 Pmposed Pe=lty: S 225MOD Amwc II ORIVAL CMERENCE AVAILABLE CONTACT MINING A TUNNELING OFFICE LWH ON CITATI! get pits t 4aavte d ttds lShrtow a0 xm7ic.ebs d l+srq for iefamrtaa m e.g%"Md, rt�o wd K�ombat4a, Cfttkm end NetiReae(ew d 1kdV ftv S of 5 OMA2 Orr►.A'!3) 1.� 100492 95/84/2085 16:48 9165. 42 SAC M i T PAGE 92 Stale Of Ca f01'di Lnp Kdm Na bet: 12-78243 DivWm'of Moopodmal SaW rod Aa10t Ieapactba Deter. 11/091M- cW/mm Ca foo Wbag&'[lt m ft Office(t1950dM 1:4072)bm aw Dude= aS105=W 2211 Pett Towne Circle.Sdt 2 cow ah s45" Saaamenco.CA 95813 Opdmd Iapoe&a Nbtx 031.03 Campoq Namm EAST BAY MUNW PAL Utfi=DIST T lmpee6a SWe: 0.5 Mi S OF S BROAVWAY AND NEWELL AVE.WALNUT CKM.CA M% Cid] 11ea11 Type of Violaatlat: swim TSCCR 151l(b) SAFETY MCAMONS Prior to as peeemoe of ba ea layms,the a gftyat"mdoa a ftruteptt tm m of lbe mooloos of 0te mile iD deta�e.ao for u pcmd bio,me ptt dkt*le b moz&16 a> WI=and the kbW and v&W of nkpm& . amesuS a peaeatsm the wode fn a sde aaaaaar is aameelagcs rvi>ti the tdevamt parts of Pbae A,7ra and b of . . tbs Appeadis. . I Eau Brit hamipd Udtky Dktria wet ttwara of tba 6+ears+boa of Kbit Mo%m E= Y Puma.LP's 104nck 1figh Ptest- Pooroiatm Ltre btto Eat Boy Mink">ROity DirbWa WSW Lia?mjWA a e.idmmed by mope cmmd by Caroib Pgowers PC mad reviewed by Bat Bq l hmk4 d VtMq Dim. Batt Bay Masic"UbUy Dbbia taviewad do pot-botisf dela dxivod b m the field and{Wiled to Wom to umissinE dila in&c vkivky of to affia of do KWft McgM ZmW Palm=LP's 14hzb High 14errare R�etoieoaa Lim in the area of Statloa 100+11.4rlrich teaAtlted In the draft of five ampinyaea OW the aerierus inja:T of foot o ar empioyccs. Booed vpm due pot-aft data ra►iew.East fry M mkkW Ud ft Dbwb Mad to eequo t sdddood data negisding tbt:loeadn of the 104ach E50 Picame Pcftdam LJM aid its dose Ptadadtj to tie wanes One pu Ica racavabao. Bae Bq Mid Udlh9 Dtateict malataiad on era Sk p=mm do f'�.Pte[ CaaW(Lots and(had*)and Qatltq Atsarame ( ). Dow By WbdcA V'rolaum Must be Abated: 11109tm Proposed Pea dtjr S 675DM . M R)RMAL CONFERENCE AVAILABLE CUNTACT I9N1t1G&TUNNELING OFFICE UMD ON ORATION Ss py..I mrerylb 4 d"0CbM% ..N Id une.6ow of rt viV fir.kciiorrw lm m mrplvya.nos-F""rvm arrd.e�pmwLlarks. CkWm end Nadfloo a of Party PW S of 6 0s"2¢oe►.Wm 100493 C G C C C C _O O "" O O O O c tJ C3 :3 U C3 U U n Z Z •U Z Z Z Z tl) N � ca a) to ) N C C O '''' " 0 : �, Q cu N � ca 4) 2 N Z Z CO) U) :3 Q O Q) Q) 0 W a sCL .4) U CCl. J N •Uj N o C L (D v W ma o 1 u o. � O E -a o m o- o CU :3 r0 0 co � U W U 1 i� 100496 SHORT TITLE: case NUMBER: Farley, et al. v. Kinder Morgan, Inc. , et al. C 05-01573'7 i i Second CAUSE OF ACTION -General Negligence Page 10 (tuff.ben ATTACHMENT TO - ®Complaint 0Cross-Complaint (Use a separate cause of action form for each cause of action.) i 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 Engineers; Camp, Dresser and McKee, Inc. ; Comforce Technical Services, j Inc. M Does 1 to S n I was the legal(pro)imate)cause of damages to plaintiff. By the following acts or omissions to act, defendant 4 negligently caused the damage to plaintiff I on(date): Tuesday November 9, 2004, 1:30 p.m. at(place): Walnut Creek, California. (description of reasons for liability): 1. Plaintiff, Victoria Farley, repeats and .realleges as if set forth in full herein, the First Cause of Action. 1 i 11102. 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. Form Approved by the j"cial cwt ot California CAUSE OF ACTION -General NegligenceceP425.12 Effective Jam"1.1191MUU S' Rule 982.1(3) optional Form i SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc. , et al. CASE NUMBER: C 05-01573 Third CAUSE OF ACTION -Intentional Tort Page �1 (numbed ATTACHMENT TO ®Complaint El 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 i ®Does II_to 20 was the legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act, defendant intentionally 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) i I Form alCounwedbyn>o CAUSE OF ACTION-Intentional Tort -47k S. CCP 425.12 Judidal Caunpl of CaGfoma Eflective January 1,1982 t..t Rule 982.1(4) a $ Optional Form SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc. , et rc SE NUMBER: al. 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, 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 line numbers): j/161 [This page may be used with any Judicial Council form or any other paper filed with =court. page 12 Form Approval by the ADDITIONAL PAGE '"i 20(New January of Cat.198 Attach to Judicial Council Form or Other Court Paper Sp u g CRC20i.soy MC-0ZO(New January t,1987) Optimal Farm 1. SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASENUMBER: 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 f 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): 7 This page may be used with any Judicial Council form or any other paper filed with this court. page 13 Fan Approved by the ADDITIONAL PAGE Ju-dalNewJan a CafforriJanuary 1.198 Attach to Judicial Council Form or Other Court Paper $p png- c�201• S°' MCA20 thew January t,19871 �Plus Opuonai Fam SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et cASE NUMBER al. C 05-01573 1 D. 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 9, 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 i 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 i I 17 below, it is hereby alleged that the acts of KMEP, SFPP, KMGP, KM Inc., and DOES 11- 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): t This page may be used with any Judicial Council form or any other paper filed with this court. Page 14 i ttt FamApprovedbythe ADDITIONAL PAGE MUS, Jididai c01""of ca4fornia Attach to Judicial Council Form or Uther Court Paper SpCRC 201.501 MC-020(New.,an—y 1.1987 Optional Form QL SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASENUMBER: al. C 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 i I 1 7. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and each of them, were aware of their i 14 respective responsibilities under, among other things, the Government Code and Code j 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): This page may be used with any Judicial Council form or any other paper filed with this court. page 15 Form Approved by ft ADDITIONAL PAGEj, 1 jad1OMCoL°'"to`CSWOWa Attach to Judicial Council Form or Other Court Paper Sp u] 21 CRC 201.501 MC 020(New January 1.1987) 3 Opdorw Form l E SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASENUABFR 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 I 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 f .25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): f�7 This page may be used with any Judicial Council form or any other paper flied with this court. page 16 FormAWomdbythe ADDITIONAL PAGE JudtdM Oo nd 01 Ui10ri1a Attach to Judicial Council Form or Other Court Paper Sp u E' CRC20i.50+ MC.020INe.Jarwrary 1,19971 'f Opdonal Form r1 S SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER: Fal- 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 Hazardous Materials Safety Administration, " the recent accidents of KMEP, SFPP, 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 € 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): 1i--:P:-;;e:May be used with any Judicial Council form or any other paper filed with this .court. I page 17 Form Aaw&md by mite ADDITIONAL PAGE J"d'�C 1"a Of carfomia Attach to Judicial Council Form or Other Court Paper SO S- CRC201. so, MC-020[New kmlary 1,19871 Optional Form $ t E SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , etCASENUMBER. 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 I I . 12 worker when his leg was crushed between two water trucks. These defendants, and f 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 17 initial contract with EBMUD was awarded to Modern Continental Co., which contract i i 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 I 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 KMEP, SFPP, KMGP, KM f - 22 Inc., and DOES 11-20, and each of them. Modern Continental Co. expressed this i 23 concern to, among others, KMEP, SFPP, KMGP, KM Inc., and DOES 11-20, and each j 24 CONTINUED ON THE NEXT PAGE I 25 I 26 (Required for verified pleading) The items on this page stated on Information and belief(specify item numbers, not line 11� numbers): I This page may be used with any Judicial Council form or any other paper filed with this court. Page 18 FamAppvvWbyft ADDITIONAL PAGE al JU&O l coumdl of Cowomia CRC 201, 501 f C-M IN"iw+wn 1 79871 Attach to Judfctal Couneit Form or Other Court Paper $O u s Opional Fam S i SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE 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 1I* November 9, 2004, EBMUD awarded its contract to MCI, who advertises that it 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 16 dedication to "knowledge, integrity, quality and superior service." KMEP, i 17 SFPP,KMGP, KM Inc., and DOES 11-20, and each of them, knew that KMEP, SFPP, KMGP, 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 I. 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 Fa mApproved by the ADDITIONAL PAGE AdcW c m%cm or cafifamiaCRC 201.501 MG020[New January 1 19871 Attach to Judicial Council Form or Other Court Papermus, Opoonal Form fati 8HORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASENUMKR: 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 I 14 the event of an explosion and thus would be trapped to burn inside the EBMUD 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, r 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): [ j This page may be used with any Judicial Council form or.any other paper filed with this court. page 20 I " Fo„ApPMYW by ma ADDITIONAL PAGE Jlwicw caindl a cadtorr" Attach to Judicial Council Form or Other Court Paper so cac zo,, sol MC-020IN"January 1.19871 Optimal Fo m ft4 F 1 i SHORTTITtE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NLwark- al. IC 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; i 11 B. Knowingly providing maps, drawings, and plans to entities performing work on i 12 the Project which did not accurately depict the location of Kinder Pipeline; r C. Knowingly and deliberately failing to create, obtain, and/or analyze the 14 proper utility maps, plans and drawings accurately showing the location of .Kinder i 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): (4W . This page may be used with any Judicial Council form or any other paper filed with this court. page 21 Fom,Approved by8,e ADDITIONAL PAGE j,�j JuEldal council a California Attach to Judicial Council Form or Other Court Paper SJ'dU (f CRC 201.501 MC-M(New January 1.19871 p]tlS Optional Form i SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , eTc,E NUMBER: aZ. 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 I 9 where the Kinder Pipeline intersected with EBMUD Pipeline path that the field I I 10 markings accurately represented the location of the Kinder Pipeline, that MCI need i 11 only follow the field marking devices to avoid hitting the Kinder Pipeline during i 12 excavation, and that additional locating and monitoring by MCI was not necessary; i I. Maintaining a company-wide practice, through a corporate policy of i 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 filed with thi=court. page 22 Form APwowdbylne ADDITIONAL PAGE Judicial Council a1 California Attach to Judicial Council Form or Other Court Paper $p CRC 201.$ol MC-020[New January 1,19871 Optional Form SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASENUMBER: 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; (0 N. Improperly failing to inspect, or to do so as frequently as necessary, the ' 14 Kinder Pipeline, and the proximity of workers thereto, during work on the Project I 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; I 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 Form Approved by the ADDITIONAL PAGE Mus,J.dfCouncil of Canfomia Attach to Judicial Council Form or Other Court Paper $pCRC 201.501 ua MC-020(New Janry 1,19971 Optional Form f I SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc., et CA8ENUMBER. 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 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 24 Form Appro"dby 0,e ADDITIONAL PAGE Jud cW Courwl of Califorrda CRC 201.501 MC-020(Newimuary1 teed Attach to Judicial Council Form or Other Court Paper S' OpfiwW Form QL us SHORTTiTtE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER al. C 05-01573 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 I10 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 vented pleading) Theit ms on this page stated on information and belief(specify item numbers, not line f numbers): E r 7 This page may be used with any Judicial Council form or any other paper riled with.this court. page 25 Form Approved by the ADDITIONAL PAGE JudWal council of Cartfomie CRC 201.501 facozo January 1 lyse Attach to Judicial Council Form or Other Court Paper $OF�u�� Optional Form QL 3 SHORTTITLE: Farley, et al . v. Kinder Morgan, Inc. , et CASE NUMBER al. IC 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 ( 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 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 fled with this court. Page-16_. 6 Form Approved by the ADDITIONAL PAGE JudldatNmJamiar 1.19a Attach to Judicial Council Form or Other Court Paper Sju opg- CRC 201.501 MC-020(New January�.1987) Optional form IalSH:ORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER:IC 05-01573 i! 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 J I 6 contract required that a field meeting be held. The required meeting was held on i 7 September 28, 2004 at approximately Station 83. The meeting was attended by EBMUD { i 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): (10 Thls page may be used with any Judicial Council form or any other paper filed with this court. page 27 FomT Approved by ft ADDITIONAL PAGE Jud0.020 Cou Ja i ry 1.19ia CRC 201.501 �d(Now�ry 1 ise71 Attach to Judicial Council Form or Other Court Paper Sp�UU 5- OpriwA Form `moi i SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER: al. C 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 q* 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 16 and requested a site meeting on November 8, 2004. Ross knew MCI was approaching 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 t numbers): ia.. This page may be used with any Judicial Council form or any other paper Bled with th iss court. Page 28 Fam AWoved by 9K ADDITIONAL PAGE JWkaal Cauicii of CareamWAttach to Judicial Council Form or Other Court Paper Spg S- CRC 201,sol VC-M[New January 1.19871 . Opba+ai Form r. I I r I SHORT TITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER: 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 11 truck was not observed." i 12 U. OSHA's facts and findings No. 24: "the KMEP petroleum line was punctured on I i i November 9, 2004, at 13:22 by an excavator operated by MCI Operator Greg Berry. 14 Berry is positive that the offset in the petroleum line was not marked any time j j 15 after the area was benched for his excavator." 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. j j I 18 The resulting explosion and fire resulted in five deaths and four serious injuries. i 19 Extensive property damage was also sustained as.a result of the explosion and f 20 fire." i 21 ' 22 CONTINUED ON THE NEXT PAGE I 23 f 24 25 26 (Required for verifted 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 9 Form AppmedbytM ADDITIONAL PAGE J"toW CourcO of Caafomia CRC 201. 501 ! MC•020[New January 1 tsars Attach to Judicial Council Form or Other Court Paper $Ortl SS 11 Opfional Farm S i SHORTTITLE. Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER: al. 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 verrfed 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 withthis court. page 3 0 Form Approved by the ADDITIONAL PAGE Judcu Couna dcoldomia CRC 201. 501 Mco2oiNewJanuafy 1 19071 Attach to Judicial Council Form or Other Court Paper Spg Optional Folin '-� $ l I i 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 i 2 knew, for reasons above described, that injury or death of workers at the Project j i 3 site was a probable, not merely.possible, result of that danger. 4 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, j i 9 SFPP, KMGP, KM Inc., and DOES 11-20, Pacific Operations Unit of sufficient severity i 10 to trigger Federal reporting pursuant to 49 C.F.R. § 195.54 since January 1, 2003 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 i (�3 the Pacific Operations unit would be hazardous to life, property and the I 14 environment. The Order required these Defendants to address safety policy 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 23 24 25 26 (Required for verified pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): &7 If This pagemay be used with any Judicial Council formor anyother paper filed withthis court. page 31 Fond Approved by V* ADDITIONAL PAGE JudicW Council of California CRC 201.501 MCO20I�Jmlumy1 19971 Attach to Judicial Council Form or Other Court Paper $ mun soptlonaf Form `S SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER: 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 Inc., 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 I 14 defendants, in the interest of maximizing their business interests and motives, 15 chose to authorize or ratify said conduct. i 16 I 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 veered pleading) The items on this page stated on information and belief(specify item numbers, not line numbers): , TVhispage may be used with any Judicial Council form or any other paper filed with this court. Page-L2- l Farm Approved by the . ADDITIONAL PAGE Juddal COLMdl Of CardOmMa CRC 201, 501 Mc-=[New January> 19871 Attach to Judicial Council Form or Other Court Paper u S- Opb"Farm $ i i i 07 SHORTTiTLE: Farley, et al. v. Kinder Morgan, Inc. , 7tCASE NUMBER: al. 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 r 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 i 17 follows: 18 "(e) Willful Violation 19 (2) Willful Violation--is a violation where evidence shows that the employer I 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): s 7 This page may be used with any Judicial Council form or any other paper filed with this court. page 33 F�Approndbyft ADDITIONAL PAGE ,��� JidicW C&ffa of fa�OaNa Attach to Judicial Council Form or Other Court Paper JQIUS' CRC 201. 501 MC-0201New lam-ry 1,18871 Op11a1a1 Farm SHORTnTLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER al. I 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. i I 6 i I 7 i 8 i 9 10 11 i 12 14 15 16 17 18 19 20 21 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): 0 This page may be used with any Judicial Council form or any other paper tiled with this court. Page 34 i Form Apprmed by ft ADDITIONAL PAGE A4"al 0ourc4of Uifoma Attach to Judicial Council Form or Other Court Paperu' ns' CRC 201.sol MC-020[New January A.19871 Optional Form i i SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et al. CASE NUMBER C 05-01573 Exemplary Damages Attachment Page — ATTACHMENT TO [X]Complaint =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 Plainfiff alleges defendant was guilty of FRI malice Q fraud XCQ 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 I 1 I j i I EX-3. The amount of exemplary damages sought is a. XCJ not shown,pursuant to Code of Civil Procedure section 425.10. t 110 Form O the Judidal Ca rni of C91 tt fftia EXEMPLARY DAMAGES ATTACHMENTC� e l cca 426.12 Effective January 1.1982 s0hu' TQIIS Ride 982.1(13) Optlonal Form f l SHORTTITLE: Farley, et al. v. Kinder Morgan, Inc. , et CASE NUMBER al. C 05-01573 i 1 2. Although KMEP, SFPP, KMGP, KM Inc. , and DOES 11-20 were well aware that i 2 applicable law required that the location of underground installations such as a I 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 i i 5 nonetheless willfully failed to determine by a marking method the accurate location j i 6 of the Kinder Pipeline, in the area of its intersection with the excavation path of i 7 the EBMUD Pipeline, prior to the opening of an excavation to install that water I 8 line. KMEP, SFPP, KMGP, KM Inc., and DOES 11-20 were aware that workers would have i i 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 I I 11 that the Kinder Pipeline was clearly marked, which.would have resulted either in i 12 its relocation, or in other. appropriate measures to safeguard workers. As a result i i 3 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 i 15 injury. 16 17 3. In engaging in the actions and inactions described above, KMEP, SFPP, KMGP, KM 18 Inc., and DOES I1-20, did have knowledge of the potential peril that ultimately i i 19 resulted in PLAINTIFF'S personal injury (i.e., the possibility of a breach of the i 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): i 7 t This page may be used with any Judicial Council form or any other paper filed with this court. page 3 6 Form Approved by the ADDITIONAL PAGE Judddal Cound of California Attach to Judicial Council Foran or Other Court PaperU S, CRC 201.Sot MC-0201New January t.19871 Optional Forth 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. § 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 continued operation of the Pacific Operations unit would be hazardous to life, I 14 property and the environment. The Order required the KMEP Defendants to address j I 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 17 its employees which led to these regularly occurring pipeline accidents, and I 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 i 20 change those ineffective safety policies and practices which led directly to such I 21 accidents and failed to meaningfully discipline the employees whose conduct led to 22 such accidents. Instead, KMEP, SFPP, KMGP, KM Inc., and DOES 11-20,authorized or I 23 ratified such conduct. ; I 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): l4 This page may be used with any Judicial Council farm or any other paper filed with 7 this court page 37 Form Approved by Ow ADDITIONAL PAGE Li 'kid�clmmdl of callromia Attach to Judicial Council Form or Other Court Paper $o]u�Qns- 01C 201.501 MC-020 iNm January 1.19071 1'W Optional Forth `r{ s ` k l_ Farley, et al. v. Kinder Morgan, Inc. , et GISENUMBER: 7SHORTTITLE: . C 05-01573 1 5. 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 14 11-20, were aware of the peril, consciously failed to act to avoid the peril, and 15 knew that injury or death was a probable result if they acted in that manner. 16 17 + 1 18 i 19 i 20 21 ; 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): 7 j, This page may be used with any Judicial Council form or any other paper filed with this court. Page-18- 8 Form appmvedbyMe ADDITIONAL PAGE i Judtlal ca,rw;airy 1.t98 Attach to Judicial Council Form or Other Court Paper Sp�S' CRC zo,.sol MG020[New January 1.1987) . opeonai Farm S _ 1 �7 11/29/2005 03:28 916924. .0 HABBASAMEiDOOLA% .0 PAGE 02/26 (� SUi4JONS SUM-100 (CITACION JUDICIAL) Fon counruseONLY (SOLO PARD USO DE LA Connq NOTICE TO DEFENDANT: AV(SO AL DEMANDA DO): INDER MORGAN ENERGY PARTNERS, L.P. , KINDER MORGAN, INC. , SFPP, L.P., (unified as KM) ; COMFORCE TECIMICAL SERVICES, INC. ; EAST BAY MUNICIPAL T,TILITY DISTRICT; CAROLLO ENGINEERS, P.C; CAMP, DRESSER & MCKEB; DOES BMAGTUED Y PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): MIGUEL FUENTES You have 30 CALENDAR 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 pteintiff. 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. Theta may a court form tot you can use for your response.You can find these court forma and more Information at the California Coutts Online SoM•Help Center(www.courttMo.ca.goviselfhelp),your county law library,or the courthouse noarest you. If you cannot pay the filing fee,ask the court clerk for a be waiver form. if you do.not file your response on time,you may lose the case by default,and your wages,money.and property may be taken without further warning from the court Thera are other legal requirements.You may want to cell an attorney 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 eligible for free legal services from a nonprofit legal services program.You can locate these nonprofit groups at the Cardarnla Lagal Services Web alta(www lawhelpcalifornio.org),the California Courts Online Se"olp Center(www.courtlnfo.ca.govlsolfhetp),or by contacting your local court or county bar association. Tkne 30 DMS DE CALEWDAR10 despuds de quo is entreguen este cltacldn y apales legales para presentar una respussta par esGfto an osta torte y hater quo se enueguo uns copla al demandant}e. 'Una catfa o une Ilemada telefanlca no to protagem Su respuesta par escvfto Bene quo astar an formato legal comacto sl dasea qua procesen su trio on la cortex Es poslble quo heya an formulaic quo usted puede usarpare su respuesta. Puede eneonfror estos farmubd os de le collo y mds lnformecidn on ai Centro ds Ayude doles Cortes da California(www.courdnfap.gov/seltboip✓aspanob),en la blbllateca de loM do su condadc o an!a coria qua le quede m3s cercs. M no puede pagans cuofa do prosentad6n,plda of socrelado de In aorto quo le db un formularfo'de a wneldn de pago de cuota& Sl no presenta su respuesfa a Bempo,puede perder at vaso par lncumpHmiento y In torte le poded qultarsu sueldo,dnero y blenes s'nt mss advertenda. Hay otrvs requisites logales. Es recomendable quo!lame a un obogadv lnmedlaramante Sl no conooa s un abegado,puada gamer a un sevNclo de remislbn a abogadvs. Sl no puede pagar a un abogado.as posible quo cumpla can los MquisUos para obtener seWdos legales gratultvs de un programa de serwafos legales sin lines de tue% Puede enconbw estios grupos sin fines de lucroen el s,Bo.wab de California Legal Services,(wwwiawhelpcallibmia erg),an el Centro de Ayuda da las Cortes do Caglhrnla, I(WWW .eourf/nfo. v1se11he1pj4Wsno14 o ponismmdose on eontacto torr ld aorto o alcoleglu eabogsdas locales. The name and address of the court is: CAM A;BiU 5 02286 (El nombre y direcddn de to carte es): (^1&mm del case). Contra COSta Superior Court 725 Court Street Martinez, CA 94553-1.233 The name,address,and telephone number of plaintiffs attomey,or plalntiff without an attorneadeen is, (E7 nombre,In direoof6r y el ndmem do feldfono del abogado del demandants,o d !e que no bene abogado,es): Steven J. Brewer, Esq. (SBN 94889) -5411 5 -832-1918 GWILLIAM IVARY CHIOSSO CAVALLI & BREWER 1999 Harrison Street, Suite 1600 Oakland, CA 94604-2079 DATE: NOV 3 Clerk,by eputy Pecha Seaetarlo Ad unto (Forproo ofservice of ms summons,use Proof of ery ce of Summons(form POS-0 0 (Para pr'rt�$al�i+k,f�Wgia de este cltaddn use el formulado Proof of Service of Summon (PO D)). NOTICE TO THE PERSON SERVED:You are served t Q R � •,• •.NUN l 1! 1, n as an individual defendant. : tf 2. n as the person sued under the fictitious n of(specify): J � 14� 3. �] on behalf of(specift n� •Z �r under. CCP 418.10(corporation) (� CCP 416.60(minor) �p19�,0'��.••••..,.•C,�r �) CCP 416.20(defunct corporation) L. j CCP 418.70(conservatee) �� 1tARA �tt�a��~~ CCP other4e�(association or partnership) _)CCP 416.90(auttwrs rized peon) i� L1 (sp ally): 4. �1 bpersonal delivery on (dote): rape 1 of FOlill Adopted mor Mwdute,y Use Cello er CNI P16W&a g§41LM 1165 eiloid wane;of C rescuffm8 Suu.loo ptni..brn�y,1,e�tl SUMMONS 11/29/2005 03:28 91692k 10 I-IABBASAMENDOLASbuC.O PAGE 03/26 C •010 ' (� ATPOMW OR PARTYWWDW ATTORNEY(Neste,atate berow ,6w,and eddresa): FOR COURTUSIff ONLY Steven J. Brewer, Esq. (SBN 94899) WILLIAM IVARY CHIOSSO CAVALLI & B"KER 1999 Harrison Street, Suite 1600 Oakland, CA 94604-2079 11:16PHotENo.: 510-832-5411 FAXNO.; 510- 832-].918 —ATTORMUFORName), iff aates Y RO — 9UPMOR COURT OF CAL FORMA,COUNW OR Contra Costa "+ +lU Y 3 ,p aTRWA0014E29: 725 Court Street rrAp rNo ADCRs as clTYAnzipcom Martinez, CA 94553-1233 ! MWI 6RANON NAME: CASE NAME: Fuentes v. Kinder Morgan, et al. `no CIVII.CASE COVER SHE>;T Complex Case Designation °A8 � 02286 ® io nodi ;� Counter [ ] Joinder mended emended Is Filed with first appearance by defendant Juoore oeods X less) (Cal.Rules of Court,nits 1 all) DEPT.; All true 5 Meme below must be comfated sea insitue fora onpage2. 1. Check one box below for the case type that hest describes this case: Auto TortContract Provisionally Complex Civil Litigation =Auto(22) Q Breach of contraefterranty(06) (Cal.Rules of Court,rules 180048121 =Uninsured motorist(46) C]Collections(09) ©Antitruavrrade reAuletlon(03) Other PUPD/WD(Personal Injury/Property Insurance coverage(18) Construction defect(10) DamageNrongful Death)Tort Q Other contract(37) Mass tort(40) Asbestos(04) Real property �Secunlles frtlgation(28) []Product 8ebllity(24) [�ErrInent domaln/Inverse Q Envlronmentalfroxla tort(30) [�Medical malpractice(46) eondemnaWn(14) 0 Insurance coverage daft arising from the [ Other PI/PDM(D(23) above listed provisionally complex case Non�UPDnn/D(Other)Tort [�yvrongful eviction(33) types(41) Business tort/unfair business pmcdce(07] Other reel property(26) Enforcement of Judgment =Civil rights(08) Unlawful Detalner = Enforcement of judgment(20) �]Defamation(13) Commercial(31) [� Miscellaneous Civil Complaint Fraud(16) Residential(32) [�]Intanerdual property(19) 0 Drugs(38) 0 RICO(21) Professional negligence(25) Judicial Review 0 Other complaint(not specX d above)(42) = []Other non-PI/PD/WD tort(35) [�Asset forfeiture(05) Miscellaneous Civil Petition Employment L]Peblion re:arbitration awaid(11) Partnership and corporate govemance(21) =Wrongtul termination(36) Q Writ of mandato(02) Other petition(not specH/ed above)(49) Q Other employment(13) 0 Other judidal review(39) 2. This case ® Is = Is not complex corder rote 1800 of the California Rotes of Court.if case Is complex, mark.the faders requiring exceptional judicial management: a. (�. Large number of separately represented parties d. = large number of wltnesses b. EAsnatve motion pracgce raising diflicult or.novel e. CE Coordlnatfonwlth 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 a Q Substantial amount of documentary evidence f. �= Substantial post-judgment judicial supamWon 3. Type of remedies sought(check all that apply): a. [XU monetary b: = nonmonetary;declaratory or Injunctive relief. C. ® punitive 4. Number of causda of action(apedly): 5. This case [] Is M Isnot a class action suit. Date.-November 3, 2005 . , Steven J. BrgXer, 99a. (SH 98889) gal =2RWYFQRPArff-16 NOTICE • Plaintiff must file this cover sheet with the trot paper filed in the action or proceeding(except smog claims cases or cases filed under the Probate,Pamlly,or Welfare and institutior)s Code).(Cal.Rules of Court,rule 201.8.) Failure to file may result In sanctions. • File this cover sheet In addition to any cover sheet required by local court rule. •H this case is complex under rule 1600 at seq.of the California Rules of Court,you must serve a copy of thla cover sheet on all other parties to the action or proceeding. • U09 this Is a complex case thILc_pyeE shLel lball be used for stallaflost purposas only. Pope 4 eta 1. ,ludlWlrkurteQatcelumruaw CIVIL UAUF,UQVFr.KSHEE go luim-AIA 1000-1014 arendsrdedAMMOMMMMIMIis cnrolev .ua+,sooai S 11/29/2005 03:28 91692 40 HABBASAMENDOLASauC.O PAGE 04/26 1 Steven J.Brewer,Esq.(State Bar No. 94889) GWILLIAM,NARY,CHIOSSO,CAVALLI&BREWER 2• 1999 Harrison Street,Suite 1600 Oakland,CA 94612-3528 J: S9 . 3 Telephone: (510)832-5411 Facsimile: (510)832-19186 41—U Cw r•4'4\\ .. Robert A.Amendola,Esq.(State Bar No. 122688) M�x•�t� 5 HABBAS,AMENDOLA&ASSOCIATES 1451 River Park Drive,Ste.298 6 Sacramento,CA 95815 Telephone: 916)924-8787 . 7 Facsimile: (916)924-8440 x . Attorneys for Plaintiff Miguel Puentes PER LOCAL w"r v 9 CASE ISA°- tr °a 10 SUMMONS'-=f. DEFT � 11 4 a > s 12 IN THE SUPERIOR COURT Of THE STATE OF CALIFORNIA 4 U S 13 IN AND FOR THE COUNTY OF CON1'R.A.COSTA 6 14 C05 0228 _ s 15 MIGUEL FUENTES, COMPLAINT FOR DAMAGES e^ u < 16 Plaintiff, I. Negligence as against the KM >= Defendants and DOES 1-25 17 2. Strict Liability for Ultrahazardous > vs. Activity as against the KM Defendants 18 and Does 125 3. Willful'Misconduct as against the KM Q 19 KINDER MORGAN ENERGY PARTNERS, Defendants and Does 1-25 L.Pi KINDER MORGAN,INC.,SFPP,L.P., 4. Negligence as Against COMFORCE and 20 (unified asICM),COMFORCE TEC> LAICAL Does 26-50. SERVICES,INC.;EAST BAY MUNICIPAL 5, General Negligence/Dangerous v 21 UTILITY DISTRICT;CAROLLO Condition of Public 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 27 i� 28 COMPLAINT FOR DAMAOFS Fuentes v.Kinder MorQcn of al. 11/29/2005 63:28 91692; 40 HABBASAMENDOLASavC.O PAGE 05/26 1 PLAINTIFFS 2 1. Plaintiff MIGUEL FUEN TES was severely injured on November 9,2004 whit 3 working for MOUNTAIN CASCADE,INC.(MCI)on a water supply pipeline installation iri 4 Walnut Creek,California commonly known as the Walnut Creek-San Ramon Valley 5 Improvement Project(PROJECT). The route o£the pipeline was generally to be above, 6 7 parallel to,and east of a high pressure fuel pipeline system,hereafter referred to as the W g ICIMER PIPELINE. 3 W m 9 DEFENDANTS ON 10 2. Defendant KINDER MORGAN ENERGY PARTNERS,L.P.is a limited Q 11 partnership under the laws of the state of Delaware and is authorized to do business in the > 12 State of California. U S s� 13 i. H U 14 3. Defendant SFPP,L.P.is a limited partnership under the laws of the state of :v c 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 17 under the laws of the State of Delaware and authorized to do business in the State of 18 California. KINDER MORGAN ENERGY PAR'T'NERS,L.P.,SFPP,L.P.,and KINDER 19 MORGAN,-INC.are hereafter referred to as the KM defendants. Plainiff MIGUEL 20 FUENTES is informed and believes that at all times relevant hereto,a unity of interest and V 21 22 ownership exists amongst the 1 M 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. COMPLAWr FOR DAMAGES Fuentes v.Kinder Morgan at aL 11/29/2005 03:28 916924 i0 HABBASAMENDlLAS5ud.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 4 §910 on or about May 2,2005. On or about May 11,2005 EBMUD served its Notice of 5 6 Rejection of Claim. 7 7. Defendant CAROLLO ENGINEERS,P.C.,(CAROLLO),is a corporation UJ g organized and existing under the laws of the state of Arizona and authorized to do business in UJ cd 9 the State of California. m �+ 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 > it < N 12 the state of California. v3 ' 13 �� 9. The true names or capacities,whether individual,corporate,associate or � 14 _ 0 . 15 otherwise,of DOES 1 through 100,inclusive,and the factual basis of liability against said F- W .0.9 16 defendants,and*each of them,are unknown to plaintiff at this time,who,therefore,sues said Cd 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 Q amend this Complaint accordingly. Plaintiff is informed and believes and thereupon alleges 20 3 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 28 -3- COMPLAW FOR DAMAGES F.....I.... Yr..a..Ad. ..1 11/29/2005 03:28 91692: .40 HABBASAMENDOLASbUC.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. S GENERAL ALLEGATIONS 6 11. On and before November 9,2004,plaintiff MIGUEL FUENTES,was an US g employee of MOUNTAIN CASCADE,INC.,and was working in and adjacent to a trench 3 m 9 constructing the EBMUD pipeline when the high pressure fuel pipeline owned,operated and as 10 controlled by the KM Defendants was punctured releasing petroleum into the atmosphere Q11 where it was ignited by the welding activities of employees of MATAMOROS PIPELINES, > 12 INC.(MATAMOROS)causing an explosion. ". '19 13 . ` 12. At all tunes relevant hereto,the KM Defendants were the owners,operators an o i4 - = o 15 controlling entities of the high pressure fuel pipeline system referred to as the KINDER P U g 16 PIPELINE. } C Ce a 17 13. At all times relevant hereto,COMFORCE performed work on the KINDER 18 PIPELINE.and other work in relation to the PROJECT,inoluding but.not limited to Q19ascertaining and marldng 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 dcsigning,owning,supervising,controlling and constructing a water.supply pipeline herein 24 known as the PROJECT. 211 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. �* 28 COMK AMT FOR DAMAGES Fuentes v Kinder Morgan er al. 11/29/2005 03:28 91692,. .40 HABBASAMENDCLAS50C.0 PAGE 08/26 1 16. Prior to and on November 9,2004,Defendant EMBUD 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 including but not limited to,suffering severe and disabling burns over his body,permanent 6 7 disfigurement and disability as a result of the explosion. oe LU g FIRST CAUSE OF ACTION 3 w a 9 (NEGLIGENCE as against the KM Defendants and DOES 1255 m 10 18. Plaintiff realleges paragraphs 1 through 17 hereof and incorporates them by Qa 11 reference as though fully set forlh"herein. > 12 0cU.� g 19. The KM Defendants,DOES 1-25,and each of thein;owed'pldintiffMJGUEL O 13 l4 . FUENTES a duty-of due care. The KM Defendants,and DOES 125,and each of therm N z15 breached their duty of due care to Plaintiff MIGUEL FUENTES-by negligently,carelessly and e� U a 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 tfiem,breached their duty of duo 4 19 care to Plaintiff MIGUEL FUENTES and others similarly situated in the following respects, 20 3 inter alio 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 -s- COMFt.AnVT FOR DAMAGES 11/29/2005 03:28 91697•. 40 HABBASAMENDOLAS5Ljb.0 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 3 8 PIPELINE in the area of the explosion so that accurate and proper marking of the location w °C 9 of the KINDER PIPELINE at or near its intersection with the EBMUD water supply m 'a 1 pipeline was accomplished prior to commencement of construction in the area; � 11 a • failing to obtain permits and other authorization to allow work to be performed in the s 12 U g 13 vicinity of the KINDER PIPELINE and EBMUD water supply pipeline; r g t 14 1A . failing to locate and field mark the location of the KINDER PIPELINE prior to 15 commencement of excavation by workers on the?ROJECT in violation of, inter alio, s 16 Government Code section 4216.3; > 17 • failing to relocate the KINDER PIPELINE to a location away from the immediate vicinity 18 of the PROJECT and EBMUD water supply pipeline prior to construction commencing on Q 19 20 the PROJECT; 3 21 • failing and refusing to address and remedy concerns of BBMUD,Modem.Continental V 22 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 appropriate knowledge and warnings concerning the location of the KINDER PIPELINE, 26 and dangers related thereto which might be encountered in the course of construction; 27 28 -6- COMPLAINT FOR DAMAGES i 11/29/2005 03:26 91692• 40 HAB X.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 dtu Ing 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; UJ 8 • failing to inspect as necessary the proximity of workers to the KINDER PIPELINE under W °C 9 such cimumstaneds that these defendants knew or should have known that the KINDER 00 10 PIPELINE could be breached or damaged by excavation work on the PROJECT; J 11 <t • failing,by and through Mike.Briggs,to inform MCI and others working in the excavation > N 12 u 13 area of the known deviation of the FINDER PIPELINE into the path of the EBMUD wa 14 supply pipeline,therefore putting workers in immediate and substantial danger of injury or O c 15 death; v 16 failing to do.any or all.of the above despite knowing that contractors which had previously } Q " 17 performed work at the PROJECT site had difficulty 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 u 21 been inadvertently damaged previously during excavation at two different locations within 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 FUENTES.was seriously Wured 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. COMPLATNr FOR DAMAGES Fusnter a Ktnder Morgan et aG 11/29/2005 03:28 91690 HABBASAMENDOLAS.uC.O PAGE 11/26 1 SECOND CAUSE OF ACTION 2 (STRICT LIABILITY for ULTRAHAZARDOUS ACTIVITY as against the XM 3 Defendants and DOES 1.26) 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 g thein,designed,manufactured,sold,owned,controlled,operated,maintained;inspected, 3 x 9 distributed,transported,located,field marked,monitored and managed the KINDER m 10 PIPELINE and the ultrahazardous and flammable material therein. 11 Q 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 *0 a 0 great. Such activities have dangerous consequences to residential environments in which they 15 x .151 .14 a 9 15 - are conducted which outweigh the benefits and value to the community. > 16 25. Such activities were a substantial factor in causing harm to Plaintiff MIGUEL d a 17 FUENTES and others similarly situated,as.herein alleged, 18 26. The injuries 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 22 monitoring and managing petroleum pipelines including the KINDER PIPELINE in residential. 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 them,plaintiff MIGUEL FUENTBS was seriously injured and has incurred and 27 continues to incur damages,including but not limited to,damages to his person,medical 28 COMPLAW FOR DAMAGES Fuente:v.Kinder Morgan et al. I 11/29/2005 03:28 91692, 40 HABBASAMENDOLASz3uC.0 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 (WILFUL MISCONDUCT as against the ICM Defendants and DOES 125) 5 28. PIaintiff realleges paragraphs 1 through 27 hereof and incorporates them by 6 7 reference as though fully set forth herein g 29. At all times relevant hereto,the KM Defendants and DOES 1-25,and each of W .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 Q 11 resulted in serious and grievous injuries to Plaintiff NIIGUEL FUENTES and others similarly n 12 V situated in the following respects,Inter alfa,by: 3 13 r, t: 14 • Improperly hiring,retaining,training and supervising their employees,agents, vs Z15 representatives and contractors,including amongst others CMEORCE,in the 0 u a a 16 performance of the work on the KINDER PIPELINE and the PROJECT involvirig the r C; Q 17 determination of the location of the KINDER PIPELINE prior to workers attempting to 18 safely excavate the EBMUD water supply pipeline and work in the area of the KINDER � 19 J 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 !0 28 COMPLAIN?FOR DAMAGES Feentri i Kinder Morean et al. 11/29/2005 03:28 9169 40 HABBAW ENDOLAS.JC.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 performe 7 in the vicinity of the KINDER PIPELINE and EBMUD water supply pipeline; a 3 8 • Wrongfully failing to locate and field mark the location of the KINDER PIPELINE prior 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 C 11 so in the area of the intersection of the EBMUD water supply pipeline and the KINDER > 12 U 13 PIP13LINE would likely result in death or serious injury to persons working in the area of i 0 U v 14 the excavation; �� z15 • Intentioinally and falsely stating to those persons excavating in the area where the EBMUD U Q H . a g 16 water supply pipeline intersected with the KINDER PIPELINE that it had properly and " 17 correctly placed field markings to represent the location of the KINDER PIPELINE; -, 18 • Intentionally and falsely stating to those persons excavatingin the area where the EBMUD 19 20 water supply pipeline intersected with the KINDER PIPELINE that the field markings V 21 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 locating 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 i 28 the precise location of the KINDER PIPELINE to entities involved in the PROJECT, C OMPLAW FOR DAMAGES Fuentes y Ktrxler Moreau et at, 11/29/2005 03:28 91692, l0 WABBASAMEND0LAStxjC.0 PAGE 14/26 1 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 EBMUD 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 "' 8 EBMUD,Modem Continental Construction and others regarding the need to accurately W e; 9 and precisely locate the KINDER PIPELINE as related to construction of the EBMUD m 10 water supply pipeline; -.., l l • Knowingly and intentionally failing to communicate to and inform workers on the > 12 U q 13 PROJECT of necessary and appropriate knowledge and warnings concerning the location 'ec; a of the KINDER PIPELINE,and dangers related thereto which might be encountered in the 14 0 19. 15 course of eorlstruetion; U < 16 • Wrongfully failing to provide necessary and adequate safeguards to workers on the a a 17 PROTECT 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 K DER 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- COMPI.AIM FOR DAMAGES . ......... .. 11/29/2005 03:28 91692, 10 HABBASAMENNDOLAS�IjC.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 KINDER PIPELINE so it could be avoided during excavation;and 4 • Wrongfully Mailing 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. a "' 8 30. The ICM Defendants,DOES 1-25,and each of them,knew that applicable law LW m 9 mandated that the location of underground installations such as the KINDER PIPELINE that 10 may be reasonably anticipated to be encountered during excavation work be determined prior Qa 11 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 tz 2�� 14 location of the KINDER PIPELINE in the area of intersection with the EBMUD water supply y zy o 15 pipeline before the commencement of the excavation,which would have resulted in the va 16 relocation of the KINDER PIPELINE or in other appropriate measures to safeguard workers. r $ 4 " 17 As a result of the conduct of these defendants,the KINDER PIPELINE was breached and 18 Plaintiff MIGUEL FLIENTES 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 conformity 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 -tom COMPLAINT POR DAMAGES Fuentes v.Ktnder Morgan a at. • 4 11/29/2005 03;28 91692 40 HABBASAMENDOLAS:Jc.O PAGE 16/26 1 Paoifie 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 6 the environment. The Order required the KM Defendants to address safety policy deficiencies 7 including but not limited to line marking and oo-call procedures. Despite knowledge of the "' g consistent pattern of conduct by its employees leading to these regularly occurring incidents, UJ W 9 the KM Defendants did intentionally and with conscious disregard fail to improve,update or ca 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. u 13 P y 14 33. The acts herein alleged were either the acts of an officer,director or managing Oo 15 agent of the KM Defendants and DOES 1-25,of the acts were consistent with and in i 2:U ¢ e 16 conformity with the corporate or company policy of each of these defendants;or said acts were Q d 17 those of an employee of these.defendants under circumstances where these defendants had 18 advance knowledge of the unfitness of the employee,retained said employee,and/or chose to � 19 Q authorize or ratify said conduct. . 20 y 34. The conduct herein alleged was despicable,malicious and oppressive as to v 21 Plaintiff WGUEL FUENNI;ES,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 theme,plaintiff MIGUEL FUENIES was seriously injured and has incurred and 27- continues to incur damages,including but not limited to,damages to his person,medical E 28 -13- COMPLAINT FOR DAMAGES Fuentet v Kinder Morvan et d 11/29/2005 03:28 91692+. 4e HABBASAMENDotC.q PAGE 17/26 1 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 FOU 'I' CAUSE OF ACTION 4 (NEGLIGENCE as against COMFORCE and DOES 26-50) 5 36. Plaintiff realleges paragraphs 1 through 17 hereof and incorporates them by 6 7 reference as though fully set forth herein. oe - LU g 37. At all times relevant hereto,in the performance of their duties and obligations, U, Cd 9 defendants COWORCE and DOES 26-50,had a duty of due care with regard to the m 10 ownership,supervision,control,surveying,sharking and operation of-the KINDER PIPELINE Q11 in a safe and proper spanner to insure the safety of the public and those working on the > 12 U PROJECT,including Plaintiff MIGUEL FUENTES and others similarly situated,and to 13 ' a � 14 follow rules,regulations and statutes in connection with their duties and obligations. Q 38. At all times relevant hereto,COMFORCE and DOES 26-50,and each of them, z 15 16 breached their duty of due care by negligently,carelessly and recklessly, inter alfa: d a 17 a 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 relation to the PROJECT,including but not limited to failing to determine the location of 20 the KINDER PIPELINE before allowing worker's to excavate and work in the.area of the v 21 EBMUD water supply pipeline and the KINDER PIPELINE; 22 . 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 pipeline and the KINDER PIPELINE; 27 28 -14- COMPI.AINT FOR DAMAGES FuP►n'e v 0"m Altman*s►nl t 11/29/2005 03:28 916925. ,B HABBASAMENDOLAS5uC.0 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 alio,Government Code§4216.3; 5 6 • Failing to inspect as necessary the KINDER PIPELINE during the work on the PROJECT when these defendants.knew or should have known through contact with others involved it Ce. "' 8 the PROJECT that the KINDER PIPELINE could be damaged by the excavation work 3 W a 9 done on the PROJECT; m as 14 Failing to properly use locating equipment to locate and accurately mark the KINDER 11 PIPELINE; 12 _ u S 13 . Failing to adequately or accurately mark the KINDER PIPELINE by a means that if a " 14 identified the precise location of the KINDER PIPELINE where it intersected with the O rLi 15 proposed excavation path of the EBMUD water supply pipeline;and E U < 16 • Failing to secure from the KM Defendants,their employees and agents,accurate 19 Q 17 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 d 19 20be made at or near its intersection with the EBMUD water supply pipeline. : 3 21 39. As a direct and proximate result of the aforesaid conduct o£the defendants,and u 22 each of them,plaintiff NUGUEL FUiRMS was seriously ir&ed 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 i.� 28 -15- COMPLAINT FOR DAMAGES Fur da v.Kinder Morvan et at. 11/29/2005 03:28 91692• A0 HABBASAMUMM ASaid.0 PAGE 19/26 I FWrH CAUSE OF ACTION 2 (GENERAL NEGLIGENCE/DANGEROUS CONDITION OF PUBLIC PROPERTY'as 3. against EDMUD and DOES 51.75) 4 40. Plaintiff realleges paragraphs 1 through 17 hereof and incorporates them by S reference as though fully set forth herein. 6 7 41. At all times relevant hereto,EBMUD was engaged in the business of planning, oe Uj g designing,owning,supervising,controlling and constructing a water supply pipeline creating. w 9 the need for the construction PROJECT herein described. cc 0 10 42. At all times relevant hereto,defendants EBMUD and DOES 51-75,and each of Q l l them,owed a duty of due care to others,including Plaintiff WGUEL FUENTES and others > n 12 U3 13 similarly situated,with regard to the planning,design,ownership,supervision,control, r 5 „ � u 6 14 surveying and construction of the water supply pipeline and the PROJECT in a safe manner so O 15 as to insure the safety of the public and those working on the PROJECT,including Plaintiff V a 16 WGUEL FUENTES. Q a 17 43. At all times relevant hereto,defendants EBMUD and DOES 51-75,and each o 18 them,breached their duty of due care by negligently and carelessly,inter alfa: 2 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 performance 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 r� from contractors on the PROJECT that they had extreme difficulty locating the KINDER 28 -16- COMPLAINT FOR DAMAGES Fuentes v Kinder Alovan et at. 11/29/2005 03:28 91692 ;0 HABBASAMENDOLAS3uC.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 PROTECT,including Plaintiff, MIGUEL FUENTES,and others similarly situated. LU 8 • Failing to create,obtain or analyze appropriate design maps and field marking data prior to m 9 allowing-the excavation work near the intersection of the KINDER PIPELINE and the 10 PROTECT; �' 11 • Failing to obtain the proper permits and other authority to allow work to be completed by > 12 U a 13 MCT and others in the vicinity of the KINDER PIPELINE and EBMUD water supply Ad Elk14 Pipeline; N a 15 • Failing to require relocation of the KINDER PIPELINE to a location out of the pathway `<4 16 of the EBMUD PROTECT; Q a 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 the PROJECT of the proximity of the KINDER PIPELINE to the EBMUD water supply ..� 20 V 21 pipeline path; 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 ascertai 27 28 -17- COMPLAn rr FOR DAMAGES Fu.nli♦w Md— uw...... w1 i 11/29/2005 03:28 . 916924 ;0 HABEASAMENDOLASSLIC.0 PAGE 21/26 1 the presence of a dangerous condition such as that which resulted in the fire and explosion 2 causing the injuries to Plaintiff,MIGUEL FUENTES; 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 5 6 KINDER PIPELINE until all necessary precautions had been taken to assure the safety of 7 those individuals; "'' 8 • Failing to notify MCI and others of hazards and dangers related to the proximity of the LU °G 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 EBMUD water supply pipeline of the Q l l hazards and dangers related thereto,despite knowing that a prior contractor had informed > 12 tai _ 13 these defendants that the PROJECT path was dangerously close to the existing high �. 14 pressure fuel line;and V1 .g z8 a 15 • Maintaining a need for rapid completion of the PROJECT and failing to own,manage and U 16 control the PROJECT and the property,including the public easement;in such a way as to a ? a 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 v 21 its consent,on the PROJECT in the immediate vicinity of the KINDER.PIPELINE rather tan 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 eacb of therm,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 -ts- COMPLAW FOR DOES Brawls•a �?n.�er Afnrnnw e►n/ S 11/29/2005 03:28 91692, HABBASAMENDOLAS_'-.;.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 . 6 continues to incur damages,including but not limited to,damages to his person,medical 7 expenses,loss of earnings and earning capacity,and general damages in sums according to a "' g proof at the time of trial. W m 9 SIXTH CAUSE OF ACTION Ca 10 ME,GLIGENCE as against Carollo and CDM and DOES 76-100) QI 1 47. Plaintiff realleges paragraphs 1 through 17 hereof and incorporates them.by a s 12 U. o reference as though fully set forth herein. 13 . a 48. At all tames relevant hereto,defendants CAROLLO and CDM and DOES 76. 14 15 100,and each of them,were engaged in the business of planning and designing the z e u a be 16 construction PROJECT,and in the course of that employment,provided drawings and plans to 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 � 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 21 PROJECT,including Plaintiff MIGUEL FUENTES,and to follow applicable rules, 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 alfa: 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 .nt.wr.... rA.ds Mewanworal i 11/29/2005 03:28 91692. ;0 HABBASAMENDOLASz;,vC.0 PAGE 23/26 + A 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; W8 • 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 of the KINDER PIPELINE to the m 14 proposed path of the EBMUD water supply pipeline in the vicinity of the explosion, a ll > placing workers at grave risk of fire and explosion,which in fact occurred;and 12 ( u 13 : Failing to prepare drawings,maps and plans which effectively warned and communicated er ns reasonably relying thereon includin those persons excavating in the areo a � 14 to all p so Y r g 8 P �cc g _ 15 the specific location of those areas where the KINDER PIPELINE came in close proximity 16 to the path of the EBMUD water supply pipeline,despite knowledge of the extreme. 17 hazards posed by the incursion of the KINDER PIPELINE into the path of tho 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 20 v 21 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 there,plaintiff MIGUEL FUENfES was seriously itljured and has incurred and 28 20- COMPLAINf POR DAMAGES 1 FurMlnc v Xiwi/wr 3/nronw it nl � . 11!29/2805 03:28 916924 h HABBASAMENDOLAS:_,;.0 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 PRAYER FOR RELIEF 5 WHEREFORE,Plaintiff MIGUEL FUENTES prays for judgment against all defendants, 6 7 and each of them,as follows: 3 g 1. For general damages according to proof; UJ a 9 2. For special damages according to proof; m 'a 10 3. For punitive and exemplary damages according to proof acid as requested in this � 11 - > complaint; Q 12 4. For all applicable interest as provided by law; 3 13 „ 14 S. For costs of suit;and N '9 . 15 6. For such other and further relief as the Court deems just and proper. e u 16 a ° 17 > is DATED: November 2,2005 GWILLIAM,NARY,CHIOSSO, 19 CAVALLI&BREWER -+ 20 u 21 By: Steven FWe r 22 Attorrt s laintiff23Miel s 24 25 26 27 28 COWLAW FOR DAMAOM Fuentes x Kfn&r Moreau it al. .. ..............._. ._ . . . _.._._._..... ... . _.... _...__..........._.. i 11/29/2005 03:28 91692e, a HABBASAMEND0LA&,,,;;.0 PAGE 25/26 1 Steven J.Brewer, S tate Bar No,94889) GWILLIAM,IMP, CAVALLI&BREWER 2 1999 Harrison Street,Suite 1600 Oakland,CA 94612-3528 3 Telephone: (510)832-5411 Facsimile: (510)832-1918 4 Robert A.Amendola,Esq.(State Bar No.122689) 5 HABEAS,AMENDOLA&ASSOCIATES 1451 River Park Drive,.Ste.298 6 Sacramento,CA 95815 Telephone: (916)924-8787 7 Facsimile: (916)924-8440 o: 8 Attorney for Plaintiff 3 Miguel Fuentes oe 9 m A 10 � 11 a a Q 12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA u 13 IN AND FOR THE COUNTY OF CONTRA COSTA �' a oall V 14 N U MIGUEL FUENTES, Case No.: } d d 16 Plair►tit£, CERTIFICATE OF AWA TT � a 17 � vs. CCP section 411.35 18 KINDER MORGAN ENERGY PARTNERS, 4 19 L.P,KINDER MORGAN,INC.,SFPP,L.P.J (unified as KM);COMFORCE TECHNICAL 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 I,Steven J.Brewer,declare, 25 I have reviewed the facts of the case and have consulted with and received an opinion from 26 an architect,professional engineer or land surveyor who is.licensed to practice and practices in thi 27 state or another state,or who teaches ai an accredited college or university and is licensed to 28 practice in this state or another state,in the same discipline as the defendants,and who is -t- CERT0CATE OF MEWT Fuentes v.Kinder Morgan d al.. i 11/29/2005 09:2B 916924. D HABBASAMEND0LA9-_.;.G 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 3 action. 4 I 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 Z 2005,at G Oakland,California. 7 oe "' 8 GWILLUK NARY,CHIOSSO, CAVALLI &BREWER � 9 co 10 l I Steven J.B o > Iz 12 Attorneys for 1 ' tiff > � Q � v N a 13 73274 14 o . a <� 16 Q 4 17 18 a 19 20 U 21 22 23 24 25 26 27 ( 28 -7� CERTIFICATE OF MERIT F..+..... XM./�ILfnw•nK of nJ i 10:!28/200.5 11:19 FAX 925 253 5858 G J E & L 0002 2005twv) 18=25 rx�e leyaE P.005/021 -. rnu�►i>� corrtRn ►.9004 vsvvVVy �T `� D d' �' 9621 1 oR?l lt>�VlXrtDq�9ff+ satBA+rm tard�ta mCwWri68ch r Ja4 LAB.�'B�IQ.. CSSft 'i2�r7�7444jMt%M'M WCEY, CM 9164153 �T�, tG�. 'l�, �rasr-ate. Sc TAAs'= 2 Theatre SgaaM . Suite 230 Or=la, Ca i fa= x .94563 fro: (925? 2S3-5601? Fut+o topeoowc (925) 253-5858 Elaigtiffs waeoFoavttt CC>Z7':QiA SUPERIOR COURT s�arvetwmmsx 725 CM= Street m�coocMaxt:3s:�`zr Calfoxnia', 94559 SEP 3 Q 2005 �T.tme e PLitR3rm CSt A. ;tM, EMT. C. 1K asud a%r-.C21r A. Im, Rr -tcaimianany =d asSuacesso= = Lat:erest to TAB C_ im, � 1°I "t��� o Decd Ot�RNi: 11o1h�t�, .�-i S,DID�7t?lug f348X�ir L.V.: 'PAST 21AT +O'S�QCT; 3Efp, b.R: C9�, Z aasi 1'�6E, DCC.; cmtmzb ZZOMIMRS, opwmom Ymcmumat°lMIMI, j14C.; and E�DOES t7b z�� COMFLAW--PBrsohat)pjary,Property Damage,Wrongful Death Type'MAC**atfratagpW PER LOCAL RULE 5 THIS • 1--Z] tnarot2v�tcr.� L�orHha(syecAW work-gelated CASE!S AS5! 7t} [j ptoportrpa w9c Q Wtormful veatll racid=t (�PmMonalb*XT C1 otherDamsgssfad DEPT .W=gCftm(check all zat appW I Q AMON 6 A L>a0C W CW-V-CASE rpsE nn,Hsrrt AuwvnL eScn�ttdes3 � deet:not euled Sf0.two szcaetl ,"iff QM but dom mtmesd 515,000 x ACT"lS JW itlNi CML W5(,ex"vft s25x0) 3CCP No. 4433 ACLiDN Z ROMAMMED by thI:arcaded s•ompWat =1 from amtlod to tponitad S3rm g6mit9d to ftftd 7.PtAINUT0,mmp CSCbt3 A. M4, XZVM C. 7M and JACM A. im individually and as s►zccess*= 2a ImZemest: to nZ C. xM, Deceased aQegt�wv of ifC�St►A agsasst DPFB�EnKC(narsterR»R WORGM, LNC., at al. 2.'Tl►7r p1e9t�.indt+flul4 atfkd►ments Rnd vch96ibc,aonsi's1s of the folbning nUtnber o!'pages: ?,,6 . 3:Eska ptasnff rwnW above is a aompMem4adutt a Q earapt ptaf m lila cogvxWgn ffi do business In Carfatnta (2) an nqu6r,compwated on*(desccb-,J: o pubic 11: Q a nurmr an adult {a)j-j Uwbmn a guv;dlm ortonseh atnr oftbe am, ora guar gad utarp has been appolnmod Q wxmVtpranfiff(fiam)' [(� Q e ootptxa'Gon quel?�d io do boniness in t�lltomm . . Rt [��td�lnoompocalsd eati�r{d�k C� rj a pubbc (4I Q a van" k L-j gut adutt (a)M torwhom a g rard4n or CWsen+ator of the estate or x guerd"mn ad Otetn has been appointed m Q tamer tom?: M h*a=gon aboutsdgWmtaiplalntiffswho are notcompetamt edu►ts is shown in Complaint—Anarhment 3- COMPLAINT—Pemral WUrY,ProperfY - COMPLAINT--PemralWuty,Ptoperty lags]$, kao°�awr+�e.o6.7sn °�I{1 1�i°9I98 6 3 243 PH mmage,Wrongf f Death s 10!28/2005 15.19 FAX 925 253 5858 G J E & L 0003 SHORTTM.e IM, et: al. v. KINDER MORGAN, INC., et al. CASENUMM 4.Q Ptauatiff(name): is doing bushtess under the fictitious name(specify): and has complied with the fictitious business name laws. S. Each defendant named above is a natural person a.Q.except defendant(mama): C. except defendant(name): a business organization,form unknown (1) ED-a business organization,form unknown [Tj Q a corporation (z)Q a corporation (3) Q an unincorporated entity(descnl e). (3) an unincotpotated envy(describe): (4) []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,form unknown f (2) []a corporation (2) Q a corporation (3) Q an unincorporated entity(dasc6be): (3)Q an unincorporated entity(describe): (4) 0 a public entity(desca ej (4) C]a public entity(describe): (5) Q other(speofy): (5) Q other(specify): FREI 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): fi. This court is the proper court because a, Q al least one detarrdant now resides in Its Jurisdictional area. b. Q The prindpal itlaaa of business of a defendant corporation or unincorporated association Is in its jurisdictional area. r~ ®inJury to person or damrage to personal property occurred in Its jurisdictional area. d. Q otter(specify): 9.Ex—j P&*W is required to con*with a claims statuta,and a. Plaintiff has complied with applicable dawns statutes,or l__J b. Lplai nUff Is excused from comply'q because(speaW. se2inri> h+rr.a i COMPLAINT--Personal Injury,Property a :era Damage,Wrongful Death 10/28/2005 15:19 FAX 925 253 5858 G J E & L 1@004 MC-025 SHORTT(TLE:IM v. KIMER MORGAN, INC., et al. cAsfNunm°i ATTACHMENT(Number): 5 page 2g__ of 2 99 (This Attachment may be used with anYdbd/dal Council form.) (Add pages as raqulred) 2 The defendants herein named consist of entities described as follows: 3 a. Defendant EAST HAY MUNICIPAL UTILITY DISTRICT (E8MUD) 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 RBMUD 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 (RBNDD Pipeline)- The route of the RBMUD 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 Kinder Pipeline. 8 b. Defendant KINDER MORGAN ENERGY PARTNMI 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 c_ Defendant SFPP, L.P. is, and at all time herein mentioned was, a limited partnership organized and existing under the laws of the state of Delaware, and qualified to do busiaeas 11 in the State of California. 12 d. Defendant KINDEP NORGAN, INC. is, and at all times ht-rein mentioned was, a corporation organized and existing under the laws of the State of Delaware, qualified to do 13 businesa in the State of California. KINDER MORGAN SNffiiQY PARTNERS, L.P., SFPP, L.P., and BINDER MORGAN, INC. are hereafter collectively referred to as the M4 defendants. 14 e. Defendant CAMP, DRESSER and Mc=, INC.. (CvM) is, and at all times herein mentioned 15 was, a corporation organized and existing under the laws of the State of Massachusetts, and oualified to do business in the State of California. 16 f. Defendant CAROLLO ENGINEERS (CAROLLO) is, and at all times herein mentioned was, a 17 professional corporation organized and existing under the laws of the State of Arizona, and 1s qualified to do business in the State of California. 19 9 Defendant COMFORCR 18CBSICAL SERVICES, INC. (CONFORCE) is, and at all times herein mentioned was, a cozporation organized and existing under the lawn of the State of Delaware, 20 and qualified to do business in the State of California. 21 h. The true names or capacities, whether individual, corporate, associate or otherwise of Defendant DOES 1-1000 inclusive, are unknown to Plaintiffe who therefore sue said Defendants by such fictitious names. Plaintiffs are informed and believe and thereon allege 22 that each of the Defendants designated herein as Doff is negligently and legally responsible in some manner for the events and happenings herein referred to, and negligently caused 23 injuries and damages thereby proximately to Plaintiffs an herein alleged. 24 25 26 27 (iffhe&em thst this ACaclunent conoems Is made under penally of pulwy,all statements In this Attachment are made under �. peMHYapeoury) PoInAypm e d kroo:aw:Me ATTACHMENT a►.iA&Z of CMK KA M uy W to Judicial CouncU Form 10:/28/2005 15:20 FAX 925 253 5858 G J E & L 0 005 l� SHORTTTTLE:IM, et al. v. KINDER MORGAN, INC., et al. LANNUMUM. 10.The fo0owing causes of action are attached and the statements above apply to each(each complaint must have ane of MOM causes ofadlon attached): a.Q Motor vetirde b.Qx General Negligence c. Q Inter Tonal Tort d. o Products UabTrty e.Q Premises Uablltiy t. Q Odter(spedfy). Strict Liability; Willful Misconduct 11_Pla fi iff has suffered a.[] wage lass b, loss of use of property c.Q hospital and medical expenses d.Q general darrmge e.® property damage C Q loss of earning capacity g.® other damage(apeaTy).Bork economic and non-economic damages, including funeral and burial expeascs, are Claimed for vrongful death by plaintiffs individually; and compensation for destroyed and damaged personal property, and punitive damages are claimed pursuant to Personal injury (survival) claims pzeseated by plaintiffs as successors in zutereat to Decedent. Pre-Judgment rnterest at 10i per antrum (pursuant to Civil Code sectiou 3291) is Bought as applicable. 12.[Z The damages claimed for wrongful death and the relationships of plaintiff to the deceased are a.Q listed in Complaint—Attachment 12. b. xx as follows: The relationships of plaintiffs to Decedent are; gong A. Im, spouse; Kevin C. Im, son; and Jackie A. Im, daughter; each seeks economic and non-economic damages, to the extent provided by law. 13.The relief sought in this complaint is within the)rufsdk*n of this court 14_PLAIPfI'iFF PRAYS for Judgment for costs of suit for such relief as is fair,just,and equitable;and for a. (1) ® compensatory damages (2) Q pdnitive damages b. The amount of damages is(you must check(1)fn cases forpersonal Injury or wrongful death): (1) Qx acciordmg to proof W Q in the amount at� 15. 0 The paragraphs of this complaint alleged on information and belief are as follows(specify paragraph numbers): Date: September 29, 2.005 Jim LARM ' (TYM OR PRINT NAW Wd OF KAaJfVF 0RATrORNa "LIM PI•- w Tamm COMPLAINT--Personal Injury,Property Pupa°r' Damage,Wrongful death 10/28/2005 15:20 FAX 925 259 5858 G J E & L 0 006 SHORTTfTLE: CASE WOM IM V. KINDER MORGAN, INC., et al. FIRST CAUSE OF ACTION-General Negligence Page 4 t� ATTACHMENT T TO ®Complaint O Cross-Complalnt (Use a separate cause of action farm for each cause of action.) GN-t. plaintiff(name): CHONG A- IM, J=N C. IM and JACKIE A. IM. Individually alleges that defendant(names KINDER MORGAN, INC., KINDER MORGAN ENERGY PARTNERS, L.L.P.; and SFPP, L.P. (hereafter collectively referred to as The KM Defendants) . ®Does I to I 0 Q was the legal(pro)dmate)cause of damages to piaintlft. By the iolkrMng acts or omissions to act, defendant negfigendy caused the damage to plaintiff on(date): November 9, 2004 at(p/ace)_ Ila 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 rbhi ty): see Attachment entitled "First Cause of Action° (.� FartAADDnaeO oy 91B CAUSE OF ACTION-General Negligence5 ctr425.12 effecso 19arare aet,� owe�, 10/28/2005 15:20 FAX 925 253 5858 G J E & L 0 007 1 FIRST CAUSE OF ACTION 2 (Plaintiffs,IndlMdually,as against the SM Defendants and DOES 1 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"EBMUD 6 Pipeline'). 7 2. At all times herein mentioned,decedent Tae C_Im was an employee of Mountain 8 Cascade,Inc.(MCn,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 RM Defendants, 12 (hereafter,the"Kinder Pipeline");this caused petroleum to be released into the pipe ' 13 trench in and around which various persons,including decedent,were working. 14 4. The releasedpetroIeum was ignited b welding activities of workers for Matamoros � Y g 15 Pipelines,Inc.(Matamoros),a welding subcontractor,which resulted in an explosion 16 and fire,killing decedent,among others. 11 5_ At all times herein mentioned,the KM Defendants,and DOES 1 to 100,and each of 18 them,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 Imply hiring,training,retaining,and supervising their employees,agents, 22 representatives,and independent contractors,including(among others)a 23 contractor known as Comforce 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 Kinsler Pipeline,data which needed to be ascertained before workers could safely excavate and work in the area of the EBMUD Pipeline 28 and Kinder Pipeline; Im v Kinder Aforgas,Inc.,et al. 10/28/2005 15:20 FAX 925 259 5858 G J E & L 1@008 1. ♦ Improperly failing to create,obtain,and/or analyze the proper utility snaps, 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 8 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 show for 11 work to be completed in the vicinity of the Kinder Pipeline and EBMUD 12 Pipeline; 13 • Improperly failing to locate and field mark the location of the Kinder Pipeline 14 prior to the excavation by workers in the area of the EBMiJD Pipeline and 15 Kinder Pipeline,in violation of,among other things,Government Code 16 Section 42163; 17 ♦ Improperly failing to relocate the Kinder Pipeline to a location away from the 18 immediate vicinity of the Project and the EBMUD Pipeline,prior to permitting 19 workers on the Project to conduct their duties; 20 • Impropeaiy failing to address the expressed concerns of entities working on the 21 Project,or who had worked on the Project(including,among others,Modern 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 cawkfnt Int v.JMzder Morgan,Inc.,et al. 10/28/2005 15:20 FAX 925 253 5858 G J E & L X1009 1 workers so as to prevent breach of the petroleum line during the progress of 2 the work; 3 ♦ Intptoperly entering into a mutual agreement with MCI,BBM JD and DOES 1 4 to 100,and each of thein,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 KM defendants knew or should have]mown that the Kinder pipeline could 11 be breached or damaged by excavation work for the Project; 12 ♦ Improperly failing,through employee Mike Briggs who was on site both the 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 Kinder 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 failing to do all of the above,despite knowledge that this same 22 Kinder Pipeline had been damaged previously during excavation work,at two 23 different locations thereof. 24 25 WHEREFORE,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 ComplrtW !'►n Y.Kinder Morgan,bm,et aL 10/28/2005 1x:20 FAX 925 253 5858 G J E & L IM 010 1 _=ON]D USE OF ACTION (Plaintiffs,Individually,as against 2 the KM Defendants 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 portion of this Complaint,and the First Cause of Action thereof 6 7 7. At all times herein mentioned,the KM defendants,and DOES Ito 100,were engaged g in activities including owning,operating,locating,field marling,and monitoring 9 excavation near the Kinder Pipeline located in Walnut Creek,California,as herein 10 described. it 8. Such activities create the existence of a high degree of risk of harm to persons and 12 13 property,creating the likelihood that harm resulting from such activities would be '0 14 great;and such activities have dangerous attributes to residential environments which 1$ 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 1CM 25 Defendants liability without fault. 26 WHEKEFOM 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 Complaird Inr%grader Morgan, rm,d aL 10/28/2005 15:20 FAX 925 253 5858 G J E & L ft1Oil SH0({'r't'l1•F— CASE NUMBER IM v. KINDER MORGAN, INC-, et al. THIRD CAUSE OF ACTION-General Negligence Page 9 t�e�n ATTActimw' TO ®Comptent OCross-Complaint (Use a separate cause of action form for each cause of action_) GN-1. Plaintiff(name)- CHONG A. IM, KEVIN c. IM and TACKIE A. IM, Individually alleges that defendant(name): COMFORCE and ®Does I to Inn was the legal(pro)dmate)cause of damages to Plaintiff. By the following acts or omissions to acl, defendant neohpntiy caused the damage to plaintiff on(date)- No'v'ember 9, 2004 at(place): In and adjacent to a trench in a residential neighborhood located in the City of Walnut Creek, County of Contra costa, state,of California. (dew*(Fon of reasons for 119bift): r see Attachment entitled "Third Cause of Action" wmnooiovea ey oio AV4wcMwffl0(c8ff0M18 CAUSE OF ACTION-General Negligence CCPaS.12 WWWAM a1.1eez R*eez/m opYow Fay+ 10/28/2005 15:20 FAX 925 253 5858 G J E & L 0 012 TEM CAM OF AMON 1 (Plaintiffs di ' ,as against WORCE) 2 Description of Reasons for Liability: 3 Fust incorporating the pre-printed portions of this Compliant and Paragraphs i 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 COMFORCB,and DOES 1 to 100,had a duty of due g 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 rules,regulations,and statutes in connection therewith. 12 I2. 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; 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 18 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 workers to excavate and work in the area of the MMUD 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 COMPUW lm Y.Kkukr Morgan,Inc.,et aL 1 10/28/2005 15.:21 FAX 925 259 5858 G J E & L IND 1 • Negligently and carelessly failing to locate and field mark 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,COMFORCE 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 EBMYJD 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 WHEREFORE,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 ComplaW 11 Lir Y.ImderMorpm,Ina,et aL 10/28/2005 15.:21 FAX 925 259 5858 G J E & 014 SHORT TM E: rasE n►u�ueQ+ IM V. KINDER MORGAN, INC_, et al. FOURTH CAUSE OF AC11ON-General Negligence Page 12 MAW ATTACHMENT TO M CorrVafnt OCross-Complaint (Use a separate cause ofacffon form for each cause ofaction.) GN-1. PlakM(name): CHONG A. IM, KEVIN C. IM and JACKIE A. IM, Individually alleges that defendant(name): EAST HAY Municipal Utility District (EBMUD) CZ)Does L_ to 1 n n was the legal(proximate)cause of damages to plaintiff_ By the following acts or omissions to acl, defendant negligently caused the damage to plalnUB 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. (descdpaon of reasons forfrabft): see.Attachment entitled "Fourth Cause of Action" %. FWP ADpwad lq eye -PAW CWJM,2dcacrwan CAUSE OF AC71ON-General Negligence COP 425.12 ROD 5=10)r� 10/28/2005 15.:21 FAX 925 259 5858 G 3 E & L lih 015 1 FOURTH CAU5E OF ACTION Maluffl ,Individually,as against EBMUD) 2 General Negligeace/Dangerous Condition of Pablic Property 3 Description of Reasons forLiabdity: 4 First incorporating the pre-printed portions of this Complaint and Paragraphs 1 through 4 5 of the First Cause of Action thereof Plainti$s,suing individually,further allege: 6 13. As heretofore alleged,at all times herein mentioned BBMUD was engaged in the 8 business of planning,designing,owning,supervising,controlling and constructing a 9 water supply line,called herein the EBMUD Pipeline,thereby creating the need for 10 the construction Project herein described. 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 15 and those wonting on the Project,including decedent. 16 15. At all times herein meoctioned,BBMUD 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 workers for the various entities to excavate in 25 the area of the EBMUD pipeline and the Kinder Pipeline. BBMUD so acted 26 or failed to act,even though it was awam of the incursion of the Kinder 27 Pipeline into the project,as evidenced by various maps which had been 28 reviewed by SBMLID,along with various data collected in the field which Coetplaimt 1 let v Kinder Morgan,Inc.,a A 10/28/2005 15:21 FAI 925 253 5858 G J E & L Q016 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 marking data,prior to allowing MCI to excavate near 9 the EBMUD Pipeline and Kinder Pipeline; 10 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 r lel allowing work to be performed on its behalf,on the Project in the immediate 15 vicinity of the Kinder Pipeline,wopposed 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 Complab d 1 Yin q J-mderMorgan,hm,et aL 10/28/2005 15:21 FAX 925 253 5858 G J E & L Ca 017 . 1 worked on the project,regarding the location of the Kinder Pipeline as related 2 to proximity to the EBMUD 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 EN BUD 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 is finding 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 those individuals; 15 ♦ Knowing that a prior subcontractor had been extremely concerned that the 16 planned route of piping installation for the water upgrade was dangerously 17 close to a known high pressure fuel lime,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 hazards and dangers related thereto,all o 20 which were well known by BBMUD employees,and failing to correct such 21 bazards and dangers before permitting 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 complaint 1 In u ander Margins,Inc,d aL 10/28/2005 15:21 FAX 925 253 5858 G J E & L 018 1 negligently and creating a dangerous condition ofpubhc property which if 2 controlled. 3 4 VMEREFORF,Plaintiffs,individually,seek damages for decedent's wrongful death,as 5 described on page 3 of the Judicial Council form portion of this Complaint,at paragraph 12. 6 7 8 9 10 11 12 13 14 15 16 17 18 I9 20 21 22 23 24 25 26 27 28 CampluLw 1 Int v.Aw' der Morgan,Ina,e1 aL 10/28/2.005 15:21 FAX 925 259 5858 G J E & L 019 SHORT T171E CAM NUM89t IM V. KINDER MORGAN, INC., et al. FIFTH CAUSE OF ACTION-General Negligence Page 17 ATTACHMENT TO ®Complaint C]Crow-Complaw (Use a separefe cause of action form for each cause of ecffon.) GN-1. PlahW(name): CHONG A. IM,KEVIN C. IM and JACKIE A. IM, Individually alleges that defendant(name): CAROLLO 79NGINEERS (CAROLLO) and CAMP, DRESSER & MCRER, INC. (hereafter CDM) [!)Does I to i p n was the legal(pro4mate)cause of damages to plalrnllf. By the following acts or omissions to act, defendant nagrige*caused the damage to plaintiff on(date): November 9, 2004 at(pface): In and adjacent to a trench in a residential neighborhood located in the City of ualant Creek, County of Contra Costa, State of California. (dewdpfion ofreasons forfibbi#W: f� see Attachment entitled "Fifth Cause of Action" �. FamAPXMW Wthe � CAUSEOF ACTION-General Negligence CCF 925.12 JarANNYMM ;UBMIR IR 000aw rwm 10/28/2005 15:21 FAX 925 259 5858 G J E & L 0 020 FIFTH CAUSE OF ACTION 1 (Plaintiffs,In ' 'du y,as against CAROLLO and CDA 2 Description of Reasons for Inability: 3 First incorporating the pre-printed portions of this Complaint and Paragraphs 1 through 4 4 of the First Cause of Action thereof;Plaintiffs,suing individually,further allege; 5 6 17. At all times herein mentioned,defendants CAROLLO,CDM and DOES 1 to 100, 7 and each of there,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 EBMUD,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 I 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, (r 14 regulations,and statutes. 15 18. At all times herein mentioned,CAROLLO,CDM and DOES 1 to 100,and each of 16 them,breached that duty 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 workers 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 ofthem,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 Complaint Ln v JM deeMo►gan,Ina,et aL 1 10/28%2005 15:21 FAX 925 259 5858 G J E & L X1021 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 communicated 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 CDM,and DOES 1 to 100,and each of them,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 worlq 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 WIT I EFORE,Plaintiffs,individually,seek damages for decedent's wrongful death,as 21 dosanW on page 3 of the Judicial Council form portion of this Complaint,at paragraph 12. 22 2.3 24 25 26 27 28 i� Complaint � I Im P.%tides Morgan,Inc,et al. 10/28/20.05 15:22 FAX 925 253 5858 G J E & L 1@022 (0 1 SIXTH CAUSE OF ACTION (Plaintiffs,as Successors in Interest, 2 as against the KM Defendants) 3 Willful Misconduct 4 5 First incorporating the pre-printed portions of this Complaint and Paragraphs 1 through 4 6 of the Fust Cause.of Action thereof,Plaintiffs,suing individually,further allege: ? 19. After the fire and explosion herein described and alleged,and prior to his death, $ decedent Tae C.Tm 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 KM Defendants,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 whic 13 caused the death of decedent by,among other things: �! 14 ♦ Improperly hiring,training;retaining,and supervising their employees, 15 agents,representatives,and independent contractors,including(among others 16 COMFORCB,for the performance of work on the Kinder Pipeline and work 17in 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 that any failure an the part of those persons to properly and accurately mark 21 the specific area where the Binder Pipeline intersected 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 25 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 Complaint Dn v.,l w- der MorgW4 Inc,d al; 2 1012812005 15:22 FAX 925 253 5858 G 3 E & L 023 E 1 utility maps,plans and drawings accurately showing the location of the Kindei 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 the EBMUD Pipeline path were aware of that incursion or intersection 6 before they excavated in that area; 7 ♦ Improperly failing to obtain the proper permits and other authority to allow for 8 work to be completed in the vicinity of the Kinder Pipeline and EBMUD 9 Pipeline; 10 + Improperly failing to locate and field mwk the location of the Kinder pipeline 11 prior to the excavation by workers in the area of the EBMUD 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 ' 1 and krlie y 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$inlet 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 area 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 theist,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 therm,was not necessary; 27 + Maintairring a company-wide practice,through a corporate policy of 28 recklessness and deliberate inaction,of consistently failing to provide accurate CokrpTavtt Im V.Xard'er Marga",Inc.,dA 2 10/28/2005 15:22 FAX 925 253 5858 G J E & L 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 near 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 Modern 10 Continental Construction Co.,RBMUD,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 properly and 13 appropriately inform and communicate to workers on the Project appropriate i 14 knowledge and warnings concerning the location of the Kinder Pipeline,and 15 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,EBMUD 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 site that workers f,s Coaplafta Im v.Kmider Morgan,Inc.,el aL 10/28/2.005 15:22 FAX 925 258 5858 G J E & L X1025 1 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 Kinder Pipeline,in the area of its intersection .11 with the excavation path of the EBMUD 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 EBMUD 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 RM Defendants as herein described,the Kinder 18 Pipeline was breached,as herein alleged,causing decedent's death. 19 22. in engaging in the actions and inactions described above,the KM Defendants,and 20 DOES 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 24 sites 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 did 26 so,even though they knew,for reasons above described,that injury or death of 27 works at the Project site was a probable,not merely a possible,result of that danger. 28 1� - ComPA*d 2 hm is KkukrMargarr,Ian,eieA 10/28/2005 15:22 FAX 925 253 5858 G J E & L (►026 1 23. The acts herein alleged were consistent with and in conforrnity 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 the KM Defendants' 5 Pacific Operations Unit of hazardous pipelines alone of sufficient severity to trigger 6 federal reporting pursuant to 49 C.F.R.§ 195 54 since January 1,2003 wldcfi res gted •7 in a federal Corrective Action Order from the Department of Transportation(TOT") 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 KM Defendants and DOES 1-100;or the acts were consistent with and in 21 conformity with the corporate or company policy of each such defendant;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 str71 employed him or hes;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 27 malicious and oppressive as to decedent,in that it was despicable conduct carded on 28 by the KM Defendants with a willful and conscious disregard of the rights or safety ComP'Tiabrt Ln v J wrder Morgan,Inc,et aL 10/28/2005 15:22 FAX 825 253 5858 G J E & L Z 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 !1 knew that injury or death was a probable result if they acted in that manner., 5 6 WHMtEFORE,Plaintiffs Chong A.Im.,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. to 11 12 (� 13 . 14 15 - 16 17 18 19 20 21 22 23 24 25 26 ' 27 , 28 tl bn v rwderMWVMu IM,etaL