Filed 9/11/18 Axis Ins. Co. v. Omni Hotels Management Corp. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| AXIS INSURANCE COMPANY,
Plaintiff and Appellant,
v.
OMNI HOTELS MANAGEMENT CORP.,
Defendant and Respondent.
| D071572
(Super. Ct. No. 37-2014-00035106- CU-PO-CTL)
|
APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed.
Butler Weihmuller Katz Craig and Carol M. Rooney for Plaintiff and Appellant.
Tyson & Mendes, Robert F. Tyson, Jr., Susan L. Oliver, Dana H. Furman; Murchison & Cumming, Gina E. Och and Richard C. Moreno for Defendant and Respondent.
I
INTRODUCTION
Axis Insurance Company (Axis) appeals a summary judgment in favor of Omni Hotels Management Corporation (Omni) on Axis's complaint for damages caused by a fire that originated on a golf course on Omni's property and spread to properties insured by Axis. Axis contends we must reverse the judgment because there are triable issues of material fact as to whether Omni caused the fire and as to whether Omni owed other property owners a duty to minimize fire hazards by restricting smoking and maintaining the native vegetation on the golf course.
We need not decide the duty question as we conclude Omni met its burden on summary judgment of showing Axis could not establish the causation element of its claims, and Axis failed to meet its corresponding burden of establishing there was a triable issue of material fact as to causation. We, therefore, affirm the judgment.
II
BACKGROUND
A
Mid-morning, during hot, dry, and windy weather, a fire broke out in an area of native vegetation (native area) alongside a concrete cart path near the seventh fairway of a golf course on Omni's property (area of origin). The area of origin consisted of wood chips or duff, low level wild grasses, shrubs, pine trees, golf balls, and an irrigation system. Despite Omni's efforts to suppress the fire, the fire spread to and damaged property insured by Axis.
B
Omni created native areas on the golf course a few years before the fire. Omni regularly weeded the native areas, but did not water, mow, or trim the native vegetation. Omni wanted the native areas to be free growing like a jungle.
C
Omni's beverage and maintenance carts had gas-powered, combustion engines. The carts had mufflers, but did not have spark arresters.
Omni instructed its beverage cart employees to always keep the beverage cart on the concrete cart path because the beverage cart was too heavy to go on the grass. The employee driving the beverage cart on the day of the fire followed this instruction and stayed on the concrete path.
Omni instructed its maintenance employees not to enter the native areas while driving the maintenance cart. On the morning of the fire, a maintenance employee checked the seventh hole and parked the maintenance cart on the grass between the fairway and the cart path. He had not on that day or on any prior day operated the maintenance cart in the native areas and he had never seen anyone else operate a cart in the native areas.
D
Omni allowed smoking on the golf course. A group of four golfers were golfing on the golf course before the fire broke out. Two of the golfers were smokers. The first golfer smoked a cigar, which he began on the first hole and finished by the fifth hole. He did not smoke near the seventh hole. Although he did not specifically recall how he extinguished his cigar that morning, he usually extinguished his cigars by letting them burn out in the bottom on his golf cart or in the cart's golf ball holder. He never entered the area of origin and he did not see any beverage or maintenance carts near the area.
The second golfer smoked cigarettes. He takes about seven minutes to smoke a cigarette and he smokes about 10 cigarettes a day. While golfing on the seventh hole, the second golfer inadvertently hit his golf ball into the native area. He hit a provisional shot and then walked over to the native area to retrieve his golf ball. When he could not readily locate it, he abandoned the effort.[1]
The second golfer did not smoke on the seventh hole, but he more than likely smoked before then. Although he did not specifically recall how he extinguished his cigarettes that day, he typically extinguished them in cups filled with water or sand or, more commonly, on the ground by twisting and stamping them out. He never had and never would extinguish a cigarette in a native area. He did not see anything unusual in the native area. He also did not see any Omni workers or a beverage cart in the area.
About 45 minutes after the first and second golfer left the seventh hole, another golfer playing on the seventh hole noticed smoke coming from the area of origin.[2] The golfer did not see a maintenance cart, a beverage cart, or any other person, vehicle, or equipment nearby. The smoke quickly burst into flames and spread in the direction of the wind.
E
The first fire department crew to respond to the fire arrived about eight minutes after being dispatched. By then, the fire had spread to and was spotting ahead of itself in the brush across the street from and to the north of Omni's property, threatening about 40 homes. The crew set up a defensive line between the fire and the homes and began fighting the fire from there. According to the captain of the crew, the crew knew the fire would at least burn out brush across the street from Omni's property. The crew did not have any chance of putting out the fire on Omni's property because they could not see through the smoke to fight it there. In addition, the fire was not the type of fire firefighters fought from the ground. Instead, the fire required a lot of air support to fight.
According to one of the firefighters on the crew, the crew quickly decided not to start fighting the fire on the golf course because the fire department's priorities are life, property, and then the environment. There was no life and very minimal property threatened on the golf course. The fire was a wind-driven fire, meaning the wind was pushing the fire quickly, and the fire was headed toward a highly populated apartment building, a pet hospital, and a dentist's office. The people in those buildings, who had not been evacuated, were the fire department's number one priority, which determined the location where the crew began fighting the fire.
F
A fire department investigator ruled out deliberate acts and natural ignition sources as possible causes of the fire.[3] The investigator also ruled out all ignition sources within the area of origin, except for a smoldering ignition source directly contacting combustible material. Specifically, the investigator could not rule out, or rule in, the possibility the fire was caused by (1) a lit cigarette or cigar, or (2) a spark from a titanium golf club.
Regarding the first possibility, the investigator found burnt cigarette butts along the cart path east of and outside the area of origin. However, the butts seemed weathered, as if they had been there for a while, and nothing pointed to them as an ignition source. The investigator did not find any cigarette butts, cigar butts, or matches within the area of origin or anywhere else in the burn area. Because smoking materials are lightweight, any that may have been present in the area of origin could have blown away or been incinerated by the fire. Even if the investigator had found the remains of a cigarette butt in the area of origin, its presence would not necessarily have indicated it was the cause the fire.
Regarding the second possibility, the investigator did not find any evidence any golfer had used a titanium golf club in the area of origin on the day of the fire. The investigator also did not find any tire marks in the area of origin.
When there is no evidence of a cause, or there is conflicting evidence of a cause, the investigator's training and the handbook he follows in conducting investigations requires him to find the cause of a fire to be undetermined. Consistent with his training and the handbook, the investigator found the cause of the fire in this case to be undetermined.
G
1
Axis's fire causation expert could not rule out the possible cause of the fire being either (1) an ember from a cigarette or cigar, or (2) an exhaust particle from a golf cart. The expert did not have enough information to state either possibility was the cause of the fire.[4]
The handbooks the expert follows in conducting fire causation investigations requires him to find the cause of a fire to be undetermined if he cannot rule out competing causes. Consequently, like the fire department investigator, Axis's fire causation expert concluded the cause of the fire in this case was undetermined.
Nonetheless, the fire causation expert believed Omni was responsible for the fire because Omni's beverage and maintenance carts did not have spark arresters and Omni did not restrict smoking on the golf course during hazardous fire conditions. The expert acknowledged that, even if Omni had implemented all recommended smoking restrictions, the restrictions would not prevent a smoker from discarding a cigarette and starting a fire, but he believed the restrictions would "very greatly" reduce the chance of such an occurrence. He did not, however, have any studies supporting his belief.[5]
2
Axis's fire fuels management expert also believed Omni was responsible for the fire because Omni did not properly maintain the native areas to reduce the biomass available to carry the fire. Nevertheless, the expert acknowledged in his deposition that, even if Omni had maintained the native areas in the manner the expert recommended, there would still have been a high likelihood of fire starting and spreading if a person dropped a lit cigarette or cigar into a native area under the same conditions.[6]
III
DISCUSSION
A
"We review de novo the trial court's orders granting defendants' motions for summary judgment. [Citation.] 'A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. [Citation.] The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff "does not possess and cannot reasonably obtain, needed evidence." ' [Citation.]
" 'If the defendant "carries his burden of production, [the defendant] causes a shift, and the opposing party is then subjected to a burden of production of [its] own to make a prima facie showing of the existence of a triable issue of material fact." [Citation.] "The plaintiff ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action ...." ' [Citation.]
" '[T]o determine whether there is a triable issue, we review the evidence submitted in connection with summary judgment, with the exception of evidence to which objections have been appropriately sustained.' [Citation.] 'We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' [Citation.] 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' " (Light v. California Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 89–90.)
B
1
Each of Axis's alleged causes of action (negligence, trespass, and nuisance) requires Axis to establish Omni caused Axis's damages. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1145 [negligence]; Ralphs Grocery Company v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262 [trespass]; Melton v. Boustred (2010) 183 Cal.App.4th 521, 542 [public nuisance]; Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th 786, 802 [private nuisance].) "A tort is a legal cause of injury only when it is a substantial factor in producing the injury." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) " 'A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.' " (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1025, quoting CACI No. 430; accord, In re Ethan C. (2012) 54 Cal.4th 610, 640.)
2
Axis asserts Omni caused Axis's damages by allowing smoking on its golf course or by using combustion-engine maintenance and beverage carts not equipped with spark arrestors. Once Omni produced evidence showing the cause of the fire was undetermined, Axis had the burden of producing evidence showing there was a triable issue of material fact on this point. (See Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482 (Leslie G.).) Axis's fire causation expert's testimony did not meet this burden because the expert characterized embers and exhaust particles as possible causes, not probable causes, meaning neither was more likely than not the cause of the fire. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403 ["A possible cause only becomes 'probable' when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury."]; accord, Petitpas v. Ford Motor Co. (2017) 13 Cal.App.5th 261, 288.)
Axis nonetheless argues it is immaterial whether the probable cause of the fire was embers or exhaust particles because either cause was Omni's responsibility to prevent. This argument assumes Axis's fire causation expert opined it was probable the fire was caused by one or the other possibility. This is not an accurate characterization of the expert's testimony (see fn. 4, ante). It is also not a reasonable inference from the expert's testimony given the standards the expert employed (see fn. 3, ante) and the expert's ultimate finding that the cause of the fire was undetermined.
Moreover, this argument ignores the reason why Axis's fire causation expert could only categorize embers and exhaust particles as possible causes of the fire—there was no evidence to support either of them as probable causes. While there was evidence two smokers played golf on the golf course on the day of the fire and one of them looked for an errant golf ball in or near the area of origin, there was no evidence either smoker smoked near the area of origin or anywhere else on the seventh hole. Similarly, while beverage and maintenance carts passed through the seventh hole on the day of the fire, there was no evidence the carts went into the area of origin or were at or near the seventh hole when the fire started. Axis has not supplied any authority indicating the substantial factor test can be satisfied by the combination of two possible fire causes when both lack evidentiary support and no expert has opined one or the other is more likely than not the probable fire cause.
Axis suggests for the first time on appeal that the doctrine of res ipsa loquitur applies in this circumstance. Axis is mistaken. "Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts. [Citations.] It is based on a theory of 'probability' where there is no direct evidence of defendant's conduct [citations], permitting a common sense inference of negligence from the happening of the accident. [Citations.] ... [¶] The applicability of the doctrine depends on whether it can be said the accident was probably the result of negligence by someone and defendant was probably the person who was responsible. [Citations.] In the absence of such probabilities, there is no basis for an inference of negligence serving to take the place of evidence of some specific negligent act or omission." (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75.) Thus, the doctrine "cannot be applied to infer negligence where the cause of an accident is merely speculative [citation], that is, where there are several possible causes and no cause can be excluded or included by the evidence [citations]." (Id. at p. 77.)
Pappas v. Carson (1975) 50 Cal.App.3d 261 (Pappas) is distinguishable because the fire official in that case found two probable (versus possible) causes of the fire and both were within the defendant's control. (Id. at pp. 267–268.) " '[P]roffering an expert opinion that there is some theoretical possibility the negligent act could have been a cause-in-fact of a particular injury is insufficient to establish causation. [Citations.] Instead, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff's injury.' " (Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 578.) When, as here, the matter of causation is speculative or conjectural, or the probabilities are at best evenly balanced, the court has a duty to find in favor of the defendant as a matter of law. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775–776; Leslie G., supra, 43 Cal.App.4th at p. 484.)
3
Axis alternatively asserts Omni caused Axis's damages by failing to adequately irrigate and maintain the native areas to reduce the likelihood of the fire spreading from the golf course to adjacent properties. However, Axis's fire fuels management expert testified there was a high likelihood a lit cigarette dropped in the same area under the same conditions would have caused a fire to start and spread even if Omni had done everything the expert recommended to maintain the native areas. This testimony is consistent with the observations of the golfer who first reported the fire and the fire captain and crew who first responded to the fire. As previously stated, if the same result would have occurred regardless of Omni's conduct, then Omni's conduct was not a substantial factor in causing Axis's harm. (Raven H. v. Gamette, supra, 157 Cal.App.4th at p. 1025.)
Axis attempted to avert this conclusion by proffering a declaration from the fire fuels management expert opining the recommended maintenance would have slowed the fire enough to allow firefighters to contain the fire to Omni's property.[7] However, the court sustained Omni's objection to the expert's opinion on multiple grounds, including that the opinion was conclusory, speculative, conjectural, and lacking foundation. Axis asserts the court erred in its ruling, which we review for abuse of discretion. (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226 (Alexander).) " '[T]he appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.' " (Ibid.)
Notably absent from the fire fuels management expert's opinion is any discussion of the effect of the wind, which the fire investigator, the golfer who first reported the fire, and the fire captain and crew who first responded to the fire all testified caused the fire's rapid spread. Also absent from expert's opinion is a discussion of the factors firefighters consider in deciding how and where to begin fighting a fire. Without at least some minimal explanation of how the expert's recommended maintenance of the native areas would have countered the effect of the wind on the fire's spread and created conditions that would have prompted firefighters to tactically choose to fight the fire on or closer to Omni's property, the expert's opinion had no evidentiary value. (Alexander, supra, 23 Cal.App.5th at p. 229; Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.) Accordingly, we conclude the court did not exceed the bounds of reason when it sustained Omni's evidentiary objection to the expert's opinion.
4
Because Omni met its burden of showing Axis could not establish Omni's actions or inactions were a substantial factor in causing Axis's injuries and Axis did not meet its countervailing burden of showing the existence of a triable issue of material fact, we must affirm the summary judgment in favor of Omni. (Leslie G., supra, 43 Cal.App.4th at p. 481.) Given this conclusion, we need not decide whether Omni owed Axis a duty of care to restrict smoking on its property or to maintain its areas of native vegetation in a different manner.
IV
DISPOSITION
The judgment is affirmed. Omni is awarded its appeal costs.
McCONNELL, P. J.
I CONCUR:
BENKE, J.
Dato, J., Dissenting.
Wildfires have become a frightening-if-common fact of life in twenty-first century California. Often fanned by strong arid winds, the size and destructive capacity of these fires only continues to increase. According to the California Department of Forestry and Fire Protection (CAL FIRE), 16 of the 20 largest fires in modern California history—and 9 of the 10 most destructive—have occurred in the last 20 years.[8] This new reality imposes on Californians from all walks of life the obligation to take reasonable and necessary precautions to reduce the risk of fire, particularly during dangerous "Red Flag" conditions.[9]
The facts of this case involve the May 2014 Poinsettia Fire in San Diego County, a fire of moderate size by statewide standards but still one of the larger fires in San Diego history.[10] The parties agree that the Poinsettia Fire began on a golf course owned by defendant Omni Hotels Management Corporation (Omni) in an area of "native" vegetation near the green on the seventh hole. There is likewise no dispute that the fire was preceded by weather conditions—high temperatures, low humidity, Santa Ana winds—conducive to the rapid spread of wildfires. Indeed, prior to the start of the Poinsettia Fire at approximately 10:35 a.m. on May 14, there were already two significant fires burning elsewhere in San Diego County.
While big-picture considerations provide relevant context, the legal question presented by this appeal is relatively narrow: Where a defendant's negligence is alleged to have caused or exacerbated the spread of a fire, how much evidence is necessary to create a question of fact and entitle the plaintiff to a jury trial on the issue of causation so as to preclude summary judgment?
Plaintiff Axis Insurance Company (Axis) offers three theories as to why Omni was negligent with respect to the start and spread of the Poinsettia Fire. The first two allege that Omni was negligent as to the initial cause of the fire; the third suggests that whatever the cause, Omni's negligence contributed to the rapid spread of the fire, exacerbating the damage. Axis contends: (1) Omni should have banned smoking on its golf course during high risk "Red Flag" conditions; (2) Omni was required to equip its beverage and maintenance carts with spark arresters to reduce the possibility that an exhaust spark would ignite dry brush on the golf course (see Pub. Res. Code, § 4442); and (3) Omni should have trimmed, irrigated, and maintained native vegetation on the golf course so as to limit damage in the event a fire started.
For purposes of the motion, Omni did not contest the sufficiency of the evidence to sustain a finding of negligence. Instead it claimed that any negligence on its part did not cause any damage to Axis's insureds. The dispute hinges on two categories of causation that track the two theories of negligence Axis alleges. The first deals with the actual cause of the fire, i.e., the ignition source. The second concerns whether the defendant's conduct contributed to the rapid spread of the fire. In both instances, the majority opinion applies an exceedingly exacting standard of causation that is not appropriate on a motion for summary judgment, where all inferences and intendments are supposed to favor the party opposing the motion. The crucial issue is whether Omni's alleged negligent acts—singly or in combination—were likely or probably the cause of the damage suffered by Axis's insureds. The ultimate effect of the majority opinion is to deny plaintiff its right to have a jury make that quintessential factual determination.
A
Plaintiff's fire causation expert James Garrett, a Certified Fire Investigator and retired Battalion Chief with CAL FIRE, testified that although he was unable to say exactly what caused the native vegetation to ignite, he could reasonably eliminate all but two potential ignition sources—a discarded cigar or cigarette, or an exhaust spark from a beverage or maintenance cart. He termed both of these alternatives "possible" causes of the fire. Applicable principles governing fire investigation indicate that a potential cause is "possible" if it "can be demonstrated to be feasible but cannot be declared probable." These same principles preclude investigators from characterizing a cause as "probable" unless they conclude it is "more likely than not" the reason for the fire. If two "possible" causes are equally likely, the expert must label the cause of the fire as "undetermined." (Maj. opn. ante, at pp. 6, fn. 3 & 5.)
In this case, plaintiff's expert Garrett believed that smoking material or a cart exhaust spark were the only reasonable potential causes of the fire. Although Omni was arguably negligent with respect to both, Garrett was unable to say that one of the potential causes was more likely than the other. Accordingly, he described the precise cause of the fire as "undetermined." Relying on this characterization, the majority opinion concludes that Axis failed to meet its burden in opposing Omni's motion for summary judgment because it could not establish the probable cause of the fire. (Maj. opn. ante, at p. 12.)
The applicable standard to determine causation in a case such as this was set forth in Pappas v. Carson (1975) 50 Cal.App.3d 261 (Pappas). In that case the plaintiff’s expert was able to eliminate all but two possible causes for a fire. The court explained, "To establish . . . [causation], the accident 'must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonably probable causes to which the accident could be attributed. . . . Where such other causes are in the first instance equally probable, there must be evidence that will permit the jury to eliminate them.' (Prosser, Torts (4th ed. 1971) pp. 218–219.)"[11] (Pappas, supra, 50 Cal.App.3d at pp. 267–268, italics added.) If there is substantial evidence that a defendant was responsible for all reasonable potential causes—i.e., the likely or probable causes of the fire—a jury is entitled to find causation.
Referring to the two alleged negligent causes of the fire—smoking material or an exhaust spark—the opinion criticizes Axis for inaccurately assuming that Garrett "opined it was probable the fire was caused by one or the other possibility." (Maj. opn. ante, at p. 12.) But that is the fair import of his deposition testimony. After Garrett had explained he could not eliminate either smoking material or an exhaust spark as the cause of the fire, defense counsel attempted to confirm his understanding of the expert's opinion: "[S]o you have two - - you have two competing causes on the table, correct?" Garrett responded, "Yes, based on the circumstantial evidence, there's two - - two possible ignition sources that started the fire . . . ." If you have only two reasonable possibilities as to the cause of the fire, and there is substantial evidence that the defendant's negligence was responsible for both, it necessarily follows that defendant's negligence, more likely than not, was the cause of the fire.
While Garrett may not have used the word "probable" to describe the combined effect of the two possible causes, it is only because he was not asked the question by defense counsel in precisely that way. Counsel insisted on inquiring whether Garrett could say that either smoking material or an exhaust spark individually was the probable cause of the fire.[12] He conceded he could not. He was never asked whether the combined probability of these two possible causes was more likely than not the cause of the fire.
I think Garrett's testimony is clear on its face. Axis consistently advances this interpretation in its papers.[13] But even allowing for the fact that reasonable people can read things differently, we are obliged to adopt the interpretation that favors Axis. As the Supreme Court has repeatedly explained, "Evidence presented in opposition to summary judgment is liberally construed, with any doubts about the evidence resolved in favor of the party opposing the motion." (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) While the majority opinion cites this principle in discussing the applicable standard of review (maj. opn. ante, at p. 11), it fails to apply its substance in analyzing the evidence (maj. opn. ante, at p. 12).
Apart from its reading of Garrett's declaration, the majority opinion points to certain evidence that did not support smoking material or an exhaust spark as the cause of the fire. (Maj. opn. ante, at p. 13.) Much of this consists of self-serving denials by the allegedly negligent actors, the smoking golfers or Omni's employees. In any event, the existence of conflicting evidence simply creates a question of fact to be resolved by a jury. Garrett provided the critical expert testimony by stating he was able to eliminate all but two possible causes. It should be for the jury to determine (1) whether Omni was negligent with respect to one or both of the possible causes, and (2) whether Omni's negligence caused the fire.
B
Even if it could not show that the fire was initially caused by Omni's negligence, Axis alleged that Omni made the damage worse by negligently maintaining the native vegetation on the golf course. If adequately supported, this theory provided an independent basis to deny Omni's motion for summary judgment.
Dr. Philip Omi, Axis's fuels management expert, testified in opposition to the motion for summary judgment. Omi's deposition testimony and accompanying expert report included each of the following opinions:
- "In creating the drought-tolerant native area near the 7th hole on the La Costa North Golf Course, managers failed to consider potential fire management issues, including potential ignitions and fire spread. The vegetative fuels in the native area contributed directly to the Poinsettia fire blow up on the morning of May 14, 2014."
- "[Absent active management], such a fuels complex constitutes a wildfire hazard in southern California’s regional fire environment."
- "Hazard mitigation to reduce fuel availability in the native area would have reduced substantially the potential flammability in the native area."
- "Mitigation would have improved fire control options for restricting fire growth, i.e., increasing probabilities for fire containment in the native area [south] of Poinsettia Lane."
- The overgrowth acted as a "ladder fuel to get up into the pines or other vegetation."
- If the area had been irrigated during the drought, that would have helped "rais[e] the fuel moisture so that fires might not spread so readily."
For purposes of the motion, Axis supplemented Omi's deposition testimony with his declaration that summarized and restated his conclusion: "Had Omni maintained the wildland fuels in which the fire originated by raking the duff and litter to reduce the volume of flammable plant material on the ground; and trimmed its bushes and pine trees to create horizontal and vertical spacing to separate available fuels, it is more likely than not that the rate of the fire's intensification and spread would have been slowed such that fire control agencies . . . would have been able to contain the fire to the golf course . . . ." As a result, damage to the properties owned by Axis's insureds would have been avoided or substantially reduced.
The trial court indicated it "was unable to locate any evidence in the form of expert deposition testimony that this [allegedly negligent vegetation maintenance] increased Plaintiffs' risk of harm." To the contrary, however, Omi's opinions repeatedly tie the lack of proper vegetation management to an increased risk of a fire and, more specifically, its rapid spread. Again, a plaintiff opposing a motion for summary judgment is entitled to every reasonable inference that can be drawn from the evidence and the benefit of every reasonable doubt or ambiguity. (See, e.g., Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 277.) And "[i]n light of the rule of liberal construction, a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial." (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189.)
Moreover, if there were any doubt, Omi's supplemental declaration interprets and amplifies the conclusions that were at least implicit in his report and testimony. The trial court sustained Omni's objections to the declaration primarily on the ground that it constituted "new opinion[]," ignoring settled law that exclusion of a supplemental expert declaration is not appropriate where the expert merely provides "an expanded description and interpretation of the conclusions stated in his deposition testimony." (DePalma v. Rodriguez (2007) 151 Cal.App.4th 159, 165.) That is precisely what Omi did here.
Noting that the trial court also termed Omi's declaration "conclusory, speculative and conjecture and lacking in foundation," the majority opinion nonetheless approves the exclusion of the declaration and faults Omi for failing to discuss, among other things, the effect of the wind on the fire's spread. (Maj. opn. ante, at pp. 15–16.) The wind, as well as other high-risk weather conditions (high temperature and low humidity) were undisputed. Omi acknowledged the effect of the wind, terming it a "predominant influence on the spread of wildfires." But notwithstanding the wind and other factors, Omi testified to his expert opinion that but for the negligent maintenance practices, "more likely than not . . . the rate of the fire's intensification and spread would have been slowed such that fire control agencies . . . would have been able to contain the fire to the golf course," i.e., before it reached the properties of Axis's insureds. Under established principles applicable to the review of summary judgment motions, it was for a jury—not the trial court—to determine whether Omi was correct.
C
Tort principles imposing liability for negligence exist to encourage safe practices and reduce the risk of accidents and injuries. They are no less important when it comes to preventing wildfires than they are in other contexts. Because there was a triable issue of fact as to whether Omni's negligence caused the initiation and rapid spread of the Poinsettia Fire, which concededly erupted on its property, I believe Omni's motion for summary judgment should have been denied. Accordingly, I would reverse.
DATO, J.
[1] According to one of the foursome, it was not necessary to find the second golfer's golf ball because the group was playing "partners." As he described this manner of play, "[I]t's you and me against these two guys. You hit a 10, I have a 4, you don't matter; so we're not going to chase after your ball if you are out of the hole."
[2] The foursome with the first and second golfer were on the 11th hole about a half mile away from the seventh hole when they noticed the smoke from the fire.
[3] "Probable" and "Possible" are terms of art in the fire investigations field for the level of certainty of an expert's opinions. "Probable" indicates the level of certainty a hypothesis is true is more likely than not, or greater than 50 percent. "Possible" indicates a hypothesis is demonstrably feasible but cannot be declared "probable." If two or more hypotheses are equally likely, their level of certainty must be "possible." (NFPA 921: Guide for Fire & Explosion Investigations (2014 ed.) Level of Certainty, § 4.5.1, p. 921-21.)
[4] The expert testified in his deposition:
"Q For the Cause Determination, you have 'Human Caused—Undetermined.' Did I read that correctly?
"A Yes.
"Q And you've considered a cigarette or cigar, correct—or cigarette and cigar; correct?
"A Well, they're one in the same under smoking, yes but—
"Q Thank you. That's right. You've considered that; correct?
"A Considered smoking as a possible cause, yes.
"Q And you haven't been able to knock that off the table and eliminate it, have you?
"A No, smoking is a possible cause.
"Q And the other—I think you described it as a competent ignition source, is something coming from the golf carts; correct?
"A Yes, an exhaust particle from a golf cart.
"Q And ... [t]hat cannot be eliminated. It's still on the table, so you have two—you have two competing causes on the table; correct?
"A Yes, based on the circumstantial evidence, there's two—two possible ignition sources that started the fire and then, you know, the conditions that existed caused it to spread and how it spread.
"Q But—and then we talked about this earlier, because you can't eliminate one and pursuant to what you've been taught and what you do teach, your cause determination is human caused—undetermined; correct?
"A Yes."
[5] Omni's fire causation expert likewise classified the cause of the fire as undetermined. Omni's fire causation expert considered but ruled out exhaust particles from the maintenance and beverage carts as a possible ignition source because he did not believe there was sufficient supporting evidence for this possibility. However, like the other fire causation experts, Omni's fire causation expert could not rule out smoking as a cause of the fire. The expert believed there was a higher probability that smoking, more than anything else, was the cause of the fire, but the higher probability was no more than a possibility, meaning a 50 percent chance or less, because there was no affirmative evidence of smoking being the cause.
[6] The fire department investigator considered the native area surrounding the area of origin to be manicured and well-kept. The investigator did not consider the native area to be a fire hazard. In his view, the weather and wind were the largest factors in causing the fire to spread.
[7] The expert's written summary opinions appended to his deposition testimony similarly stated: "Mitigation [to reduce fuel availability in the native area] would have improved fire control options for restricting fire growth, i.e., increasing probabilities for fire containment in native area."
[8] See CAL FIRE Top 20 Largest California Wildfires (<http://www.fire.ca.gov/communications/downloads/fact_sheets/Top20_Acres.pdf> [as of September 11, 2018], archived at <https://perma.cc/6YW6-C7EW>); CAL FIRE Top 20 Most Destructive California Wildfires (<http://www.fire.ca.gov/communications/downloads/fact_sheets/Top20_Destruction.pdf> [as of September 11, 2018], archived at <https://perma.cc/D732-JMFJ>).
[9] According to CAL FIRE, "The National Weather Service issues Red Flag Warnings & Fire Weather Watches to alert fire departments of the onset, or possible onset, of critical weather and dry conditions that could lead to rapid or dramatic increases in wildfire activity." A Red Flag Warning is the highest fire alert that can be issued. "During these times extreme caution is urged by all residents, because a simple spark can cause a major wildfire." (<http://www.fire.ca.gov/communications/communications_firesafety_redflagwarning> [as of September 11, 2018], archived at <https://perma.cc/MJ76-GTRN>.)
[10] See San Diego County Office of Emergency Services May 2014 San Diego County Wildfires After Action Report (June 2014; <http://www.readysandiego.org/aar/may-2014-san-diego-county-wildfires/May-2014-San-Diego-County-Wildfires.pdf> [as of September 11, 2018], archived at <https://perma.cc/84DD-TD22>).
[11] The majority opinion attempts to distinguish Pappas by suggesting that the expert in that case "found two probable (versus possible) causes of the fire . . . ." (Maj. opn. ante, at p. 14.) But when the Pappas court employed the term "all reasonably probable causes," it was not using "probable" to mean "more likely than not." (Pappas, supra, 50 Cal.App.3d at p. 268.) You can't have multiple probable independent causes for a single incident or injury because the sum of all probabilities can only equal 100 percent. It goes without saying that if one probability is greater than 50 percent (i.e., more likely than not), the sum of the remaining probabilities must be less than 50 percent.
[12] The majority opinion makes the same misstep when it suggests "there was no evidence to support either of them as probable causes." (Maj. opn. ante, at p. 13, italics added.)
[13] Even Omni acknowledged that Garrett testified "he could not 'eliminate' two 'possible' causes of the Fire." It went on to catalog evidence that contradicted the "exhaust spark" hypothesis, asserting there was insufficient evidence to support that alternative as the probable cause of the fire. It further argued that it had no control over golfers or others who chose to discard smoking materials on the course.
