FRANK M. PITRE (SBN 100077) ALISON E. CORDOVA (SBN …...plaintiffs’ memorandum of points and...

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT

UNITED STATES OF AMERICA’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT;

CASE NO: 3:16-CV-02859-JCS

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FRANK M. PITRE (SBN 100077)

[email protected]

ALISON E. CORDOVA (SBN 284942)

[email protected]

COTCHETT, PITRE & McCARTHY, LLP

San Francisco Airport Office Center

840 Malcolm Road, Suite 200

Burlingame, CA 94010

Telephone: (650) 697-6000

Facsimile: (650) 697-0577

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JAMES STEINLE, individually and as

heir to KATHRYN STEINLE, deceased;

ELIZABETH SULLIVAN, individually,

and as heir to KATHRYN STEINLE,

deceased; and JAMES STEINLE and

ELIZABETH SULLIVAN, as co-

representatives of the Estate of KATHRYN

STEINLE,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA, a governmental entity,

Defendant.

CASE NO. 3:16-cv-02859-JCS

PLAINTIFFS’ MEMORANDUM OF

POINTS AND AUTHORITIES IN

OPPOSITION TO DEFENDANT

UNITED STATES OF AMERICA’S

MOTION FOR SUMMARY

JUDGMENT

Date: December 20, 2019

Time: 9:30 a.m.

Location: Courtroom G, 15th Floor

United States District

Courthouse

450 Golden Gate Avenue

San Francisco, California

Hon. Joseph C. Spero

Case 3:16-cv-02859-JCS Document 118 Filed 11/01/19 of 29

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANT UNITED STATES OF AMERICA’S NOTICE OF MOTION AND MOTION

FOR SUMMARY JUDGMENT; CASE NO: 3:16-CV-02859-JCS

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TABLE OF CONTENTS

PAGE NO.

I. INTRODUCTION .............................................................................................................. 1

II. MATERIAL FACTS IN SUPPORT OF DENIAL ............................................................. 2

A. Ranger Woychowski’s Personal Vehicle Did Not Have Adequate Safety

Measures for a Long Distance Roadtrip Across the United States and Back

With His Entire Family ........................................................................................... 2

B. While Traveling With His Entire Family, Ranger Woychowski

Transported Two Loaded Firearms in the Cabin of the Vehicle, Not in

Locked Compartments, and Keeping One Accessible to Him At All Times ......... 3

C. Despite Being Issued by BLM, Neither of the Firearms Were Equipped

With Trigger Safety Locks Because Ranger Woychowski Wanted

Easier Access To His Firearm................................................................................. 5

D. Ranger Woychowski Parked on a Public Street in Front of a Tarped

Fence, Planning on Going to Dinner for Over an Hour and Did Not

Secure His Valuables .............................................................................................. 5

E. Ranger Woychowski’s Hearsay Testimony Regarding What an Apparent

Security Guard Told him About Parking on a Public Street Would Not

Have Led a Reasonable Person to Rely on the Guard for Security of

Property ................................................................................................................... 6

F. Ranger Woychowski’s Admits That He May Have Only Partially Hid the

Backpack With The Loaded, Unlocked Firearm Inside While Leaving the

Vehicle Unattended ................................................................................................. 7

G. There is Significant Evidence to Undermine Ranger Woychowski’s

Testimony That He Hid the Backpack Under the Driver’s Seat ............................. 8

H. Mr. Lopez-Sanchez Did Not Know Kate Steinle and Was Not Looking

for a Gun Until He Found One a Half Mile Down the Street From

Where It Had Been Stolen, and Unfortunately Upon Discovering It, He

Unintentionally Shot and Killed Kate ................................................................... 11

III. LEGAL ARGUMENT ON DUTY ................................................................................... 12

A. Special Circumstances Are Those That Create a Greater Potentiality of

Foreseeable Risk or Impose a Greater Potentiality of More Serious

Injury--Both Occurred Here .................................................................................. 12





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1. The Manner and Circumstances in Which Ranger Woychowski

Left His Loaded Firearm in an Unattended Vehicle Created a

Heightened Degree of Foreseeable Risk of Theft ......................................14

2. Ranger Woychowski Also Increased the Risk of More Serious

Injury By Failing to Secure his Firearm in the Lockable Glove

Compartment or With a Trigger Safety Device, All While

Leaving it Loaded ......................................................................................15

3. Special Circumstances Have Often Been Held to Support Third Party

Liability Against Owners Who Negligently Leave Large Commercial

Vehicles Unattended ..................................................................................15

4. Operating a Firearm is Analogous to Operating a Large Commercial

Vehicle--Not a Matter of Common Experience, Both Require Training,

Testing and Licensing, and Both Can Be Lethal When Operated

Improperly..................................................................................................16

B. The Special Relationship Test Does Not Apply to This Case .............................. 17

1. In Cases Where Misfeasance is Alleged, The Question Of Duty Is

Governed By The Standards Of Ordinary Care 17

2. Ranger Woychowski’s Conduct Was Misfeasance--It Fell Far

Below Any Standard of Care Related to Storage and Transport of

Firearms .....................................................................................................18

IV. LEGAL ARGUMENT ON CAUSATION ....................................................................... 20

A. Substantial Factor--not Proximate Cause--is The Operative Standard

In California When There Is An Allegation Of Concurrent Or Independent

Causation............................................................................................................... 20

B. The Evidence, When Considered In a Light Most Favorable To Plaintiffs,

Supports A Finder Of Fact Being Able to Determine That Ranger

Woychowski’s Negligence Contributed To Kate’s Death .................................... 21

C. Four Days Between Time of Theft and Time of Injury Cannot, In

and Of Itself, Bar A Finding Of Causation Here .................................................. 21

D. Criminal Conduct Does Not Break Casual Chain If That Conduct Itself

Foreseeably Flows From Original Negligent Act ................................................. 22

V. CONCLUSION ................................................................................................................. 23





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TABLE OF AUTHORITIES

PAGE NO.

Cases

Ambrosio v. Carter’s Shooting Ctr., Inc.

(Tex.Ct.App. 2000) 20 S.W.3d 262 ...................................................................................23, 24

Avis Rent a Car System, Inc. v. Superior Court

(1993) 12 Cal.App.4th 221 ......................................................................................................22

Bockrath v. Aldrich Chemical Co.

(1999) 21 Cal.4th 71 ................................................................................................................21

Carrera v. Maurice J. Sopp & Son

(2009) 177 Cal. App. 4th 366 ......................................................................................15, 16, 22

Enders v. Apcoa, Inc.,

55 Cal.App.3d 897 ...................................................................................................................13

Hergenrether v. East,

61 Cal.2d 440 ...............................................................................................................13, 15, 16

Hosking v. Robles

(1979) 98 Cal.App.3d 98 .............................................................................................12, 13, 14

Murray v. Wright,

166 Cal.App.2d 589 ...........................................................................................................13, 16

Palma v. U.S. Indus. Fasteners

(1984) 26 Cal. 3d 171 ........................................................................................................15, 16

Porter v. California Jockey Club, Inc.

(1955) 134 Cal.App.2d 158 .....................................................................................................23

Premo v. Grigg

(1965) 237 Cal.App.2d 192 .....................................................................................................23

Richardson v. Ham,

44 Cal.2d 772 ................................................................................................................... passim

State Dep’t of State Hops. v. Superior Court,

61 Cal.4th 339 ..........................................................................................................................20

Steinle, et al. v. U.S.A.

(Docket No. 48) .......................................................................................................................15





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Weirum v. RKO General, Inc.

(1975) 15 Cal.3d 40 ...............................................................................................14, 17, 18, 23

Statutes

Cal. Code Regs. tit. 11 § 4256 .......................................................................................................21

California Penal Code

§§ 23625...................................................................................................................................17

§§ 25140.............................................................................................................................18, 19

§§ 25452...................................................................................................................................18

§§ 25610...................................................................................................................................18

§§ 26850...................................................................................................................................21

§§ 26853...................................................................................................................................17

§§ 28220...................................................................................................................................21

§§ 29800(a) .............................................................................................................................21

§§ 29805...................................................................................................................................21

§§ 29900-29905 .................................................................................................................17, 21

§§ 31610...................................................................................................................................17

§§ 31615...................................................................................................................................16

§§ 31640.............................................................................................................................17, 21

California Vehicle Code

§§ 12804.9................................................................................................................................17

§§ 12808...................................................................................................................................17

§§ 14607.4................................................................................................................................17

§§ 15200...................................................................................................................................17

§§ 15250...................................................................................................................................17

San Francisco Police Code

§ 3600(B) (2016)......................................................................................................................18

Other Authorities

Firearms Owners’ Protection Act ..................................................................................................20

Sen. Comm. Rep., Analysis of Sen. Bill No. 869 ..........................................................................18





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I. INTRODUCTION

This case is about foreseeability. Ranger Woychowski chose to take his entire family

with him on a two week detail across the United States. He chose to travel by way of personal

vehicle, which did not have a gun safe or lockable, concealed rear trunk. Ranger Woychowski

chose to park that vehicle, filled to the brim with luggage, on a public street in downtown San

Francisco at nearly 10 p.m. at night. He did not even look for a parking garage. And the family

also left an iPad, Nintendo DS, two DVD players, and several backpacks inside the vehicle in

open sight.

Within that same vehicle, off-duty Ranger Woychowski was transporting two firearms

not equipped with trigger safety locks and both fully loaded. This means Ranger Woychowski

was transporting his firearms in the most foreseeable way possible to result in harm: leaving a

firearm loaded and without a safety lock allows for both intentional and unintentional use of the

firearm.

According to Ranger Woychowski, one of the firearms was being transported in a

concealed hatch located at the bottom of the trunk and there was room for the second firearm

there, but he chose not to put it there. There was also a lockable glove compartment in the

vehicle, which Ranger Woychowski admits would have fit the second firearm, but he chose not

to put the second firearm there either.

All of these are choices that foreseeably increased the risk of a “smash and grab” auto

break-in that in turn, foreseeably increased the risk of theft of the loaded, unlocked firearm,

which significantly increased the risk of harm that could result from a simple “smash and grab”.

The firearm could wind up in an inexperienced user’s hands who could, without any obstacle,

immediately fire the weapon and inflict lethal harm unintentionally.

And that is what happened. Mr. Lopez-Sanchez did not know Kate before he killed her,

and he was not looking for a gun before he just so happened to find one. And before he knew it,

it accidentally went off. Because it was loaded and did not have a safety trigger lock on it.





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While Ranger Woychowski claims to have at least “partially” hidden the backpack with

the second firearm under the front driver’s seat, there is significant evidence to undermine the

credibility of that claim. Only the rear and trunk passenger-side windows were broken into. None

on the driver’s side where the backpack was allegedly stored. Further, the vehicle’s alarm system

was set to go off if any door on the vehicle was opened without the electric key fob transmitter.

If the thief opened the rear passenger door to get into the vehicle, he would have been met with a

40 second blaring alarm, seriously deterring the thief from continuing to open the door and reach

across the entire inside of the vehicle. But apparently the thief did so, all to grab a backpack that

was apparently hidden. And yet, if the thief did that, he also irrationally bypassed several other

items that were clearly valuable and in plain sight within the vehicle.

At the end of the day, there were three simple measures Woychowski could have taken,

each of which alone would have prevented the death of Kate, but he failed to do any of them. He

could have: (1) transported both firearms in the hidden trunk compartment; (2) transported one

firearm in the hidden trunk compartment and put the other in the lockable glove compartment

when leaving the vehicle unattended; or (3) used the trigger locking device on his firearm that

was issued to him by BLM while transporting it and not on detail. All of these measures were in

fact prescribed by state and federal law for ordinary citizens at the time and were also required

by the then-operative BLM Manual.

Based upon this evidence, a finder of fact could reasonably find that Ranger Woychowski

was negligent, and that his negligence foreseeably and unreasonably increased the risk of harm

to others and ultimately, was a substantial factor in the death of Kate Steinle. Therefore,

summary judgment must be denied.

II. MATERIAL FACTS IN SUPPORT OF DENIAL

A. Ranger Woychowski’s Personal Vehicle Did Not Have Adequate Safety

Measures for a Long Distance Roadtrip Across the United States and Back

With His Entire Family

Ranger Woychowski chose to put in for a two week detail that required traveling 2,400

miles in total, from basically the Mexican border to within 200 miles of the Canadian border,





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crossing several state lines. (USA MPA, pg. 3, lns. 16-27 [“rangers stationed at the El Centro

Field Office were technically exempt from this requirement”, i.e. “provid[ing] two weeks of

assistance to other offices by working national details.”]).

Despite knowing that he needed to transport two firearms, Ranger Woychowski chose to

take his entire family (wife and three children) on this two week trip, and because of that, needed

to travel by way of personal vehicle, a 2015 Buick Enclave (hereinafter “Buick”), that was not

equipped with a gun safe or trunk where the firearms and his family’s luggage could be

concealed and locked away. (See also Cordova Decl., Exhibit 1 at USA000089 [“The BLM LEO

chose to drive his POV, a 2015 Buick Enclave, a mid-size sport utility vehicle (SUV) with no

isolated, lockable trunk compartment, so his family could accompany him.”]; see also USA

MPA at pg. 3, lns. 25-27, pg. 4, lns. 3-7 and 11-12, and pg. 5, lns. 5-8; see also Cordova Decl.,

Exhibit 2 (Woychowski Depo) at 111:13-112:2).1 The vehicle only had one lockable

compartment other than the main cabin: the glove compartment. (Cordova Decl., Exhibit 2

(Woychowski Depo) at 111:13-112:2).

B. While Traveling With His Entire Family, Ranger Woychowski Transported

Two Loaded Firearms in the Cabin of the Vehicle, Not in Locked

Compartments, and Keeping One Accessible to Him At All Times

While Ranger Woychowski may have needed “to bring his primary and secondary

handguns with him to the detail”, and carry his firearm “[w]hen on detail”, he was not on detail

when traveling to his detail in Helena, Montana. (USA MPA, pg. 4, lns. 3-11 [emphasis added]

[“Ranger Woychowski was traveling to the Montana detail, he was on ‘official travel status;’ but

June 27 was his day off, so he was not on a ‘pay’ or ‘duty’ status.”]). By his own words, he was

off duty. (Cordova Decl., Exhibit 2 (Woychowski Depo) at 198:20-199:3 [“Q. And as you said

you were off duty; correct? A. Yes. Q. Why did you want your firearms to be easily

1 He had just purchased the Buick and had used an official vehicle or his prior personal vehicle -- a Kia with

a lockable, concealed rear trunk-- for all prior work trips. (Woychowski Depo 48:22-51:23, and 56:20-57:17). Every

official BLM vehicle has a gun lock box, a.k.a. “truck vault” secured by a combination lock that was large enough to

fit all BLM-issued weapons. (Woychowski Depo 37:01-39:05).





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accessible? A. Because I always have it easily accessible. Q. Okay. A. That's my standard

practice. I always have a gun with me.”]).

Ranger Woychowski had packed his Sig Sauer P226 in a closed compartment

underneath the family’s luggage in the rear cargo area. His smaller, secondary

handgun, the Sig Sauer P239, was packed inside a black backpack, which was

zipped shut and stored in the car’s passenger cabin.

(USA MPA, pg. 5, lns. 5-9 [citations omitted]).

As the footnote to the prior admission states: “both guns were loaded at the time.” (Id. at pg. 5,

FN. 3). The Sig Sauer P239 is the firearm that was stolen (“The Firearm”). (Cordova Decl.,

Exhibit 1 at USA000089).

Ranger Woychowski testified that there was room in both the lockable glove

compartment and the closed compartment underneath the family’s luggage in the rear

cargo area to store his smaller, secondary firearm, the Sig Sauer P239, but Ranger

Woychowski chose not to store the firearm in either of these secured locations. (Cordova

Decl., Exhibit 2 (Woychowski Depo) at 114:9-21 [“Q. Would that size of a firearm have fit in

your glove compartment? A. Possibly, yes.”]; see also Id. at 191:3-21).

Ranger Woychowski’s only justification for not storing his loaded Sig Sauer P239 in one

of two secure locations in his Buick is because he “always likes to have one gun accessible to

[him].” (Id. at 191:3-21 [“Q. Was there room in that space for your secondary weapon? A. Yes.

Q. Why did you not leave your secondary weapon in there? A. Because I would have had to

unpack the entire contents of the trunk to access that. And like I said, for accessibility. Q Why

didn't you pack your duty gear, or secondary weapon in there when you left the house in El

Cerrito? A. El Centro. Q. El Centro. My apologies. A. Because - MR. WALL: Object -- object

to form. You can answer the question. A. Because, I always like to have one gun accessible to

me. And if both guns were in there, I would have none accessible.”]).

However, based on this logic, Ranger Woychowski should also have taken the firearm

with him to the restaurant in San Francisco, but he chose to not follow his “standard practice”





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and what he “always” does. (Id. at 198:20-199:6 [“Q. Why did you want your firearms to be

easily accessible? A. Because I always have it easily accessible. Q. Okay. A. That's my

standard practice. I always have a gun with me. Q. And was it with you when you went to

dinner that night? A. No.”).

C. Despite Being Issued by BLM, Neither of the Firearms Were Equipped With

Trigger Safety Locks Because Ranger Woychowski Wanted Easier Access To

His Firearm

Ranger Woychowski also chose not to utilize the trigger locking safety devices that

had been issued to him by BLM for use with the Sig Sauer P239. (Cordova Decl., Exhibit 2

(Woychowski Depo) at 118:11-119:23). According to the California Attorney General: “[t]wo of

the most common locking mechanisms are trigger locks and cable locks. Trigger locks are

typically two-piece devices that fit around the trigger and trigger guard to prevent access to the

trigger. One side has a post that fits into a hole in the other side. They are locked by a key

or combination locking mechanism.” (Cordova Decl. Ex. 3 ¶ 3).

Ranger Woychowski failed to employ this security measure while transporting his

firearm for the exact same reason he did not store the firearm in the locked glove compartment or

hidden trunk compartment, i.e. to have easier access to his firearm, all despite being off-duty.

(Cordova Decl., Exhibit 2 (Woychowski Depo) at 118:11-119:23 [“Q. Are you familiar with a

trigger locking device? A. Yes. Q. Do you know whether either one of the firearms that you left

in the vehicle on June 27th of 2015 had a trigger locking device on it? A. At the time they were

left in the vehicle? Q. Yes. Thank you. A. Yes, they did not. Q. They did not. Okay. Is that

something that -- was it standard practice for BLM to issue a trigger locking device with the

firearm, as far as you're aware or not? A. Yes. … Q. Is there a reason that you didn't like using a

trigger locking device on your firearm? MR. WALL: Object to form. A. Yes, because for me it

was a decreased time for accessibility, in the event I needed it.”]).

D. Ranger Woychowski Parked on a Public Street in Front of a Tarped Fence,

Planning on Going to Dinner for Over an Hour and Did Not Secure His

Valuables





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Ranger Woychowski arrived with his family in San Francisco around 9:30 p.m. (USA

MPA, pg. 5, lns. 10-11). It was dark, he didn’t look for a parking garage, and he parked on a

public street in front of a tarped fence. (Cordova Decl., Exhibit 2 (Woychowski Depo) at 162:12-

14 [“Q. Now, did you try and find a parking garage that night? A. No.”]; see also Id. at 66:14-24;

69:14-24, 157:16-22, 164:17-19). He planned to go for dinner with the family and leave the

vehicle for approximately one and a half hours. (USA MPA, pg. 6, lns.29-33; see also Cordova

Decl., Exhibit 2 (Woychowski Depo) at 189:22-191:1 and 170:12-171:12).

Ranger Woychowski and his family admitted to leaving the Buick packed to the brim

with five luggage bags, five backpacks, a Nintendo DS, at least one iPad, and two DVD screens

attached to the back of each headrest. (Cordova Decl., Exhibit 2 (Woychowski Depo) at 81:07-

83:23, 97:09-99:16). These valuables were left in open sight in the vehicle. (Id. at 99:2-16; see

also Cordova Decl., Exhibit 4 (Rascon Depo) at 36:6-21).

There was so much luggage in the vehicle that when asked if he “[c]ould [] see out the

back rear window with how much baggage was in there when you were driving to San

Francisco?”, Ranger Woychowski answered: “I think very little at the top, maybe, if any… . I

don't remember, but I think if anything, it was just a little maybe top portion.” (Cordova Decl.,

Exhibit 2 (Woychowski Depo) at 170:4-11).

E. Ranger Woychowski’s Hearsay Testimony Regarding What an Apparent

Security Guard Told him About Parking on a Public Street Would Not Have

Led a Reasonable Person to Rely on the Guard for Security of Property

Once parked, Ranger Woychowski claims to have encountered some type of security

guard that told him he would be patrolling until 11 p.m. (USA MPA, pg. 5, lns. 21-23). This is

testimonial hearsay and should not be admitted as evidence in considering this motion.2 There is

no evidence to corroborate this conversation occurred. No one else heard Ranger Woychowski’s

2 Ranger Woychowski’s representation of who this person was has changed over time as well. When he first

drafted his narrative of the event for his supervisors on June 30, 2015, he described the person as a “meter-maid

security guard.” (Depo Woychowski Ex. 10). However, his Supervisor Stephanie Clark advised him to, “change

meter-maid security to parking security officer.” (Depo Woychowski Ex. 10).





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conversation with this supposed private security guard, including Ranger Woychowski’s partner.

(Cordova Decl., Exhibit 4 (Rascon Depo) at 30:14-35:25).

Lastly, Plaintiff’s dispute that Ranger Woychowski’s reliance on his supposed

conversation with this “security guard” was reasonable. He parked on a public street. Private

security forces do not exist for protecting public streets. And Ranger Woychowski did not pay

this person for the parking or for security. (Cordova Decl., Exhibit 2 (Woychowski Depo) at 182-

183). Ranger Woychowski admits this guard did not assure him of his property’s safety, nor did

Woychowski ask the guard whether it was safe to park there. (Id.).

Q. Okay. And what -- can you please tell me what you guys discussed, to the best

of your recollection?

A. Yeah. I believe when he -- when I turned around, he had stopped completely,

and I just -- and I don't know what order, but I know I had asked him if I was

okay to park there and if I had to pay -confirming what I saw on the sign.

Q. Mm-hmm.

A. He had told me that it was metered parking until 11:00 o'clock, and he

said that he was going to be driving up and down, you know, I -- he didn't

specify, but I assumed it was checking the meters, and that he was going to be

out of service at 11:00 p.m., and to be back in my vehicle by then if -- you know.

And that was the extent of the conversation, I believe.

(Id. at 182:20-183:12).

F. Ranger Woychowski’s Admits That He May Have Only Partially Hid the

Backpack With The Loaded, Unlocked Firearm Inside While Leaving the

Vehicle Unattended

Ranger Woychowski claims to have put the backpack with his loaded and unlocked

firearm behind and under the driver’s front seat. There is significant evidence to undermine the

credibility of his testimony on this point, which is discussed below, but notably, even Ranger

Woychowski admitted at his deposition that he “may not” have put the backpack “the entire way

under the seat” and that the “drag handle” of the backpack may have been showing: “so I was





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able to put the backpack, you know, if not the entire way under the seat -- you know, maybe just

that drag handle visible showing.” (Cordova Decl., Exhibit 2 (Woychowski Depo) 174:3-175:9).

G. There is Significant Evidence to Undermine Ranger Woychowski’s

Testimony That He Hid the Backpack Under the Driver’s Seat

First, the Buick has three rows of seats and three side windows on each side. Only the

two rear passenger windows were broken--none on the driver’s side and none in the front.

(Cordova Decl., Exhibit 2 (Woychowski Depo) at 204:1-205:4; see also Cordova Decl., Exhibit

5 (Olcomendy Depo Exh. 3)).

There is no way that any thief could have reached under the driver seat from outside the

vehicle by reaching in through those two broken rear passenger windows--the vehicle is 79

inches wide in total body width and the middle row has 57 inches of hip room. (Cordova Decl.,

Exhibit 6 (2015 Buick Enclave Catalogue) at pg. 33).

Second, there was an anti-theft alarm system on the Buick that Ranger Woychowski

activated when he left the Buick on the night of June 27, 2015 to have dinner in San Francisco.

(Cordova Decl., Exhibit 2 (Depo of Woychowski) at 84:20-85:2). According to the Buick’s

owner’s manual, this alarm would have gone off for approximately 40 seconds if someone had

attempted to open any vehicle door without using the transmitter:

If a locked door is opened without using the RKE transmitter, a 10-second

pre-alarm occurs. The horn chirps and the lights flash. If the key is not placed

in the ignition and turned to START or the door is not unlocked by pressing

during the 10-second pre-alarm, the alarm goes off. The headlamps flash and

the horn sounds for about 30 seconds, then turns off to save the battery

power. ... To avoid setting off the alarm by accident:

● Lock the vehicle with the door key after the doors are closed.

● Unlock the door with the RKE transmitter. Unlocking a door

any other way sets off the alarm if the system has been armed.

(Cordova Decl., Exhibit 10 (Woychowski Depo Exh. 4) at pg. 2-12).

Third, even if the thief had opened the rear passenger door and stuck around to continue

looting the Buick after the alarm went off, the thief would have had to open the door outward

into the sidewalk and then get in the car or reach his entire body across approximately 57 inches,





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from one side of the vehicle to the other, to get to the backpack. (Cordova Decl., Exhibit 6 (2015

Buick Enclave Catalogue) at pg. 33; see also Cordova Decl., Exhibit 2 (Woychowski Depo) at

172:13-15).

However, for some reason, despite doing all of that to go after a backpack that was

apparently hidden out of view, the thief ignored grabbing two DVD players, an iPad and

Nintendo DS that would have been accessible with the door open. (Cordova Decl., Exhibit 2

(Woychowski Depo) at 99:2-16). Here is a drawing by Woychowski, Exhibit 5 to his deposition,

of where the electronics in the vehicle were located upon his return:





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Legend (Woychowski Depo, Ex 5):

Orange/yellow asterisks = two broken windows

Heart = iPad

Blue Asterisk = Nintendo DS

Black X’s on Seats = DVD Players

Oddly, however, the thief did take the Nintendo DS case that is intended to hold the game

console and two to three games within it. (Cordova Decl., Exhibit 2 (Woychowski Depo)

212:14-214:8). The console was not inside, but the games were, indicating that the thief would

not have ignored electronics if easy to grab. (Id.). The other evidence that was taken was located

in and around where the windows were smashed, i.e. “a duffel bag belonging to Ranger

Woychowski that was on top of the luggage in the rear storage area.” (USA MPA pg. 6, lns. 24-

26).

Ranger Woychowski’s partner also cannot corroborate where he left the backpack:

Q. Okay. Did you, before leaving the vehicle, rearrange anything inside the

vehicle to hide things under seats or put it in the trunk?

A. I don't recall.

Q. Okay. Do you recall whether or not John did that?

A. I was not paying attention to John.

(Cordova Decl., Exhibit 4 (Rascon Depo) at 36:18-23).

Lastly, there is no evidence that supports Ranger Woychowski’s vehicle or bags were

targeted for law enforcement association. He was not traveling in an official vehicle, not in

uniform and not on duty. (Cordova Decl., Exhibit 2 (Woychowski Depo) at 198:10-22). He was





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traveling with his whole family and there were several bags of luggage in the Buick. His luggage

was not marked differently, nor did the bags have law enforcement insignia on the outside. (Id. at

231:20-232:2). And both Ranger Woychowski’s car and the car behind him were broken into.

(Id. at 202:1-4).

H. Mr. Lopez-Sanchez Did Not Know Kate Steinle and Was Not Looking for a

Gun Until He Found One a Half Mile Down the Street From Where It Had

Been Stolen, and Unfortunately Upon Discovering It, He Unintentionally

Shot and Killed Kate

As claimed by Defendant, Mr. Lopez Sanchez “had a gun in his hands, which he claimed

to have found on the pier wrapped in a ‘rag’ or ‘shirt.’” (USA MPA pg. 7, lns. 17-19). He found

it “on the pier”, the same place it had been stolen. (USA MPA pg. 7, lns. 17-18; see also Decl. of

Wall, Ex. I, 126:15-20). In fact, where the theft and shooting occurred is less than half a mile

apart on the same street. (See Cordova Decl., Exhibit 1 at USA00089-91 [admitting shooting

happened at Pier 14 with Ranger Woychowski’s firearm, which was stolen somewhere by Pier

5]).

Mr. Lopez-Sanchez had just discovered The Firearm when it accidentally fired. (Decl. of

Wall, Ex. I, 124:6-15, 125:3-126:3, and 144:3-8). After it fired, he threw the gun into the water

“[b]ecause if not it was going to keep firing by itself.” (Decl. of Wall, Ex. I, 126:22-127:4).

There is no evidence that Mr. Lopez-Sanchez had been seeking a weapon prior to discovering it.

Mr. Lopez-Sanchez was not convicted of the murder or involuntary manslaughter of Kate

Steinle. (USA MPA pg. 7, lns. 20-22).

There is no discernible connection between Mr. Lopez-Sanchez and Kate, or evidence of

any motive why he would want to kill Kate. In fact, Mr. Lopez-Sanchez claims he “didn’t

realize” he had even shot Kate. (Decl. of Wall, Ex. I, 136:20-28).

Mr. Lopez-Sanchez was born in Colombia and had been living in Arizona. (Decl. of

Wall, Ex. H, 6:7-12). He has been convicted of multiple felonies, including illegal re-entry into

the United States several times.

Kate was born to Jim Steinle and Elizabeth Sullivan, who have been married for 32 years.

(Cordova Decl., Exhibit 7 (Steinle Depo) at 11:22-12:9). Kate did not have a spouse or children.





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(Id. at 15:16-18). She was raised in California, and went to college at California Polytechnic

Institute in San Luis Obispo where she got a degree in Business Administration. (Id. at 26:23-

27:20 and 29:2-8). After living in San Luis Obispo for five years, Kate got a job in San Francisco

and moved to the city. (Id. at 27:21-28:7). She worked as a salesperson for Medtronic, which is a

medical device manufacturer, where she sold spinal chips to physicians and medical facilities to

use on patients with spine fractures. (Id. at 28:16-20 and 30:12-17).

III. LEGAL ARGUMENT ON DUTY

A. Special Circumstances Are Those That Create a Greater Potentiality of

Foreseeable Risk or Impose a Greater Potentiality of More Serious Injury--

Both Occurred Here

Defendant cites to Hosking v. Robles (1979) 98 Cal.App.3d 98, 102, for the proposition

that “no liability absent special circumstances effecting the foreseeability of a theft and the

thief’s negligence in the commission of the crime”, and that “this is not a case where the thief

injured someone while he was stealing the firearm or otherwise in connection with the theft.”

(Defendant’s MPA pg. 11, lines 20-24).

However, Defendant confuses the special circumstances test with the negligence per se

test applied in Hosking. The plaintiff in Hosking alleged negligence per se under Cal. Vehicle

Code section 22515, which provides that “no person driving, or in control of, or in charge of, a

motor vehicle shall permit it to stand on any highway unattended without first effectively setting

the brake thereon and stopping the motor thereof,” but the injury suffered by the plaintiff was

actually caused by a thief who had stolen the vehicle--not by an idle vehicle “running away”. (Id.

at 101). This is why the court instructed that while it had found the defendant violated section

22515, “[t]he problem for plaintiff is that this particular violation did not proximately cause Ms.

Hosking's injury, was not the kind of harm that the statute was designed to prevent, and she was

not in the class of persons for whose protection this law was enacted. The harm which Vehicle

Code section 22515 is designed to prevent is that resulting from runaway vehicles, and not

the harm resulting from thefts.” (Id. at 102).





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The Hosking court’s examination of the relationship between the defendant and the

plaintiff and proximate cause is limited to this negligence per se analysis, which is why the court

noted in making its ruling: “No California case has construed this section [22515] to apply to an

injury caused by automobile theft. Plaintiff here was not the victim of a runaway vehicle, but of

an irresponsible automobile thief seeking to avoid capture by the authorities.” (Id. at 102).

Here, the Steinle’s case does not include an allegation of negligence per se, and therefore,

plaintiffs are not charged with the burden of showing that Kate was injured while the firearm was

being stolen or otherwise in connection with the theft (i.e. making her injury the type of harm the

statute meant to protect). Plaintiffs have not alleged that a criminal “theft” statute creates the

basis for negligence per se liability here. Plaintiffs have alleged common law negligence.

The court in Hosking does perform an analysis of whether the “special circumstances”

test should apply to the facts at issue in the case, but held it should not because the vehicle was

just an ordinary vehicle--a “1973 GMC pickup truck”, and the circumstances surrounding how,

where, and in what condition the owner left the vehicle did not increase the foreseeability of risk

of it being stolen compared to any other ordinary auto theft (Id. at 100, 102-104).

According to the Hosking court, “[s]pecial circumstances which impose a greater

potentiality of foreseeable risk or more serious injury, or require a lesser burden of

preventative action, may be deemed to impose an unreasonable risk on, and a legal duty to,

third persons . . . .”(Hosking, supra, 98 Cal.App.3d at 102 [citing to Hergenrether v. East, 61

Cal.2d 440, 444]).

California courts have found "special circumstances" in these cases: Richardson

v. Ham, 44 Cal.2d 772 (unattended and unlocked 26-ton bulldozer); Murray v.

Wright, 166 Cal.App.2d 589 (car dealer commonly left keys in cars on the lot);

Hergenrether v. East, 61 Cal.2d 440 (partly loaded 2-ton truck in area where

persons disrespect law and populated by drunks, defendant intended to leave it for

a long period of time); and Enders v. Apcoa, Inc., 55 Cal.App.3d 897 (known that

parking lot attendant left keys in cars in lot and there were past thefts).

(Id. at 102-103.)

“In the [Hosking] case, viewing the evidence in a light most favorable to plaintiff, there

were no ‘special circumstances’ creating a greater potential of foreseeable harm than would exist





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in any case where a driver leaves keys in a car.” (Id. at 104) “The events took place in an

alleyway under circumstances where the driver expected to return immediately.” (Id.). There was

a high school nearby, but “[t]he potential of foreseeable juvenile crime was not increased by the

manager's conduct here.” (Id.). The driver had left “the lights on, door open and engine running,”

but the court reasoned that “[a]lthough these circumstances could conceivably be attractive to a

thief, they do not increase the foreseeable risk.” (Id.) “Under these circumstances (the door open,

lights on and motor running) what was reasonably foreseeable was that the driver would return

momentarily.” (Id.).

2. The Manner and Circumstances in Which Ranger Woychowski Left

His Loaded Firearm in an Unattended Vehicle Created a Heightened

Degree of Foreseeable Risk of Theft

In the California Supreme Court case Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40,

a mother and children brought a wrongful death action against a radio station because decedent's

car was negligently forced off the highway by minors who were attempting to follow defendant

disc jockey's automobile as part of a contest. (Id. at 43-45). The trial court and California

Supreme Court held in favor of the plaintiffs:

We conclude that the record amply supports the finding of foreseeability. These

tragic events unfolded in the middle of a Los Angeles summer, a time when

young people were free from the constraints of school and responsive to relief

from vacation tedium. Seeking to attract new listeners, KHJ devised an "exciting"

promotion. Money and a small measure of momentary notoriety awaited the

swiftest response. It was foreseeable that defendant's youthful listeners, finding

the prize had eluded them at one location, would race to arrive first at the next site

and in their haste would disregard the demands of highway safety.

(Id. at 46-47).

The same is true here: Ranger Woychowski’s conduct increased the risk of theft of his

vehicle, and in turn, his unsecured firearm. He chose to travel with his family and all of their

luggage, across several state lines, in a vehicle with an exposed trunk and no gun safe. Instead of

finding a parking garage to store their valuables while eating late at night in an unknown city,

Ranger Woychowski chose to park curbside on a public street. There were no open restaurants or

storefronts where he parked, eliminating the opportunity for on-lookers to provide deterrence to





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criminals. After choosing such a poor location to park, Ranger Woychowski left numerous

valuables in open sight in the vehicle. And did not put the firearm in the lockable glove

compartment. Taken together, this conduct certainly increased the risk of a potential “smash and

grab” auto break-in that would result in his firearm being stolen.

3. Ranger Woychowski Also Increased the Risk of More Serious Injury

By Failing to Secure his Firearm in the Lockable Glove Compartment

or With a Trigger Safety Device, All While Leaving it Loaded

On top of that, Ranger Woychowski failed to equip the firearm with the trigger locking

safety device that had been provided to him by BLM, and he left it loaded. Making it accessible

and lethal for everyone, easily, without obstacle or requiring intent. Certainly, this supports

finding that Woychowki’s conduct “imposed a greater potentiality of more serious injury.”

(Steinle, et al. v. U.S.A. (Docket No. 48) Order re USA’s Motion to Dismiss, pg. 45 [“A handgun

is indisputably capable of inflicting serious injury and damage—as a deadly weapon, that is its

very purpose. See Reida, 18 Cal. App. 3d at 704 (“A Swedish Mauser military rifle is a lethal

weapon whose sole function is to kill human beings and animals of comparable size.”)]).

4. Special Circumstances Have Often Been Held to Support Third Party

Liability Against Owners Who Negligently Leave Large Commercial

Vehicles Unattended

A number of California cases have held owners of “particularly dangerous vehicles”

liable if they leave the keys in the ignition, leave the vehicle unattended, the vehicle is stolen,

and it inflicts harm on an innocent third party. (See, e.g., Richardson v. Ham, 44 Cal. 2d 772

(1955); Hergenrether v. East (1964) 61 Cal.2d 440; Carrera v. Maurice J. Sopp & Son (2009)

177 Cal. App. 4th 366; Palma v. U.S. Indus. Fasteners (1984) 26 Cal. 3d 171). These are often

referred to as “special circumstances” cases, but as several California courts have instructed: the

special circumstances test is “nothing more than a test of foreseeability of harm.” (Palma, supra,

36 Cal. 3d at 186). Among the factors that courts have considered are “the enormity of the

potential harm, and . . . the facility with which a potential wrongdoer could learn of and take

advantage of the virtual invitation to theft.” (Id. at 185 [citing Richardson v. Ham, 44 Cal. 2d 772

(1955); Murray v. Wright, 166 Cal. App. 2d 589 (1958]).





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However, “[t]hose circumstances are merely illustrative [...] of conduct which may create

foreseeable risk of harm and impose liability if that risk becomes a reality.” (Palma, supra, 36

Cal. 3d at 185; See e.g., Richardson v. Ham, 44 Cal. 2d 772 [failed to equip a 26-ton bulldozer

with an effective ignition lock; it was stolen by drunk men who could not drive it and hurt people

and property while attempting to do so]; Hergenrether v. East, 61 Cal.2d 440, [Supreme Court

reversed trial court finding for defendants who left a two-ton truck parked on the street unlocked

with the keys in the ignition, the truck was stolen, and late that night it collided with another car,

causing serious injuries]; Palma v. U.S. Indus. Fasteners, 26 Cal. 3d 171 [California Supreme

Court reversed entry of summary judgment for defendants where they had left large commercial

truck unlocked with keys inside in an uncovered lot in a high crime neighborhood; former

employee stole the truck and ran over the plaintiff]; Carrera v. Maurice J. Sopp & Son, 177 Cal.

App. 4th 366, 370-71 and 377 [California appellate court reversed a grant of summary judgment

in favor of a defendant who left a tow truck unattended with the keys in the ignition in a high

crime area because “(1) the tow truck . . . was a powerful vehicle capable of inflicting more

serious injury and damage than an ordinary vehicle when not properly controlled and the safe

operation of the tow truck was not a matter of common experience; and (2) the tow truck was

unattended and accessible to thieves within the meaning of the special circumstances

doctrine.”]).

5. Operating a Firearm is Analogous to Operating a Large Commercial

Vehicle--Not a Matter of Common Experience, Both Require

Training, Testing and Licensing, and Both Can Be Lethal When

Operated Improperly

As the California Firearm Safety Certificate Study Guide explains: “[b]ecoming a safe

firearm owner is similar to becoming a safe driver – you combine a good working knowledge of

the equipment, the basic skill of operation, and a mindset dedicated to safe and responsible

[practices].” (Cal. Dept. Justice, Firearm Safety Certificate Study Guide (Jan. 2019), p. 3,

(hereafter “study guide”)). Under Cal. Penal Code § 31615, a person may not purchase, receive,

sell, or transfer possession of a firearm unless the recipient has a valid FSC. The California

legislature enacted the Firearm Safety Certificate (“FSC”) “to require that persons who obtain





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firearms have a basic familiarity with those firearms, including, but not limited to, the safe

handling and storage of those firearms.” (Cal. Pen. Code § 31610).

To obtain either a commercial driver’s license or a Firearm Safety Certificate, a person

must: (1) submit to a background check for relevant past offenses and medical conditions; (2)

achieve a passing score on a written exam; and (3) achieve a passing score on an in-person

demonstration administered by a state-certified instructor. (See generally Cal Pen. Code §§

26853, 29905, 31640; Cal. Veh. Code §§ 12804.9, 12808, 15250). In enacting the FSC and

commercial driver’s license requirements, the California legislature determined that the public

safety benefit gained by screening those permitted to possess firearms or operate commercial

vehicles outweighs the burden that those requirements may impose on those wishing to engage in

either activity. (See generally Cal. Pen. Code §§ 23625, 31610; Cal. Veh. Code §§ 14607.4,

15200).

B. The Special Relationship Test Does Not Apply to This Case

1. In Cases Where Misfeasance is Alleged, The Question Of Duty Is

Governed By The Standards Of Ordinary Care

In Weirum, the defendant also raised the defense that they are not compelled to protect

another person from harm when there was no special relationship, but the California Supreme

Court explained that allegations of action and inaction are different in negligence cases.

According to the Court, the “good samaritan rule”, which provides that one is not responsible to

protect another unless a special relationship exists, is only applicable in nonfeasance cases:

The rule stated in section 315 is merely a refinement of the general principle

embodied in section 314 that one is not obligated to act as a “good samaritan.”

This doctrine is rooted in the common law distinction between action and

inaction, or misfeasance and nonfeasance. Misfeasance exists when the

defendant is responsible for making the plaintiff's position worse, i.e.,

defendant has created a risk. Conversely, nonfeasance is found when the

defendant has failed to aid plaintiff through beneficial intervention. As

section 315 illustrates, liability for nonfeasance is largely limited to those

circumstances in which some special relationship can be established. If, on

the other hand, the act complained of is one of misfeasance, the question of

duty is governed by the standards of ordinary care discussed above.

(Id. at 49)





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The Weirum Court held that there was “little doubt” that liability was predicated here on the

defendants “creation of an unreasonable risk of harm to [decedent].” (Id.). And this is despite the

radio station not knowing the decedent in any way shape or form, or having any direct contact

with the youth who negligently caused the accident either. (Id. at 43-45).

2. Ranger Woychowski’s Conduct Was Misfeasance--It Fell Far Below

Any Standard of Care Related to Storage and Transport of Firearms

Every law, guide, and manual that Plaintiffs are aware of related to transporting a firearm

advises that the firearm should be unloaded and in a locked compartment. Ranger Woychowski

did none of these things, while also negligently increasing the risk of theft of that firearm by

foreseeably heightening the risk of his vehicle being the subject of a “smash and grab” break-in.

California Penal Code section 25610, which was passed in 2010, limits transport of

firearms to when either: “[t]he firearm is within a motor vehicle and it is locked in the vehicle’s

trunk or in a locked container in the vehicle”; or “[t]he firearm is carried by the person directly to

or from any motor vehicle for any lawful purpose and, while carrying the firearm, the firearm is

contained within a locked container.”3 A “locked container” is defined as, “a secure container

that is fully enclosed and locked by a padlock, keylock, combination lock, or similar locking

device . . . [it] does not include the utility or glove compartment of a motor vehicle.” (Cal. Pen.

Code § 25140).

The 2006 BLM Manual Handbook states: “[a]ll firearms, when not in active use, shall be

stored in a secure place, out of sight, under lock and key. Firearms will be unloaded prior to

storage.” (Cordova Decl., Exhibit 8 (BLM Manual, Rel. 1-1703) at pg. 139). “Bureau policy

requires that all firearms be equipped with a child safety lock (trigger lock). This lock must

3 In 2016 (after the death of Kate Steinle) the California legislature clarified that the rules of transporting a firearm

applied the same as when a person leaves a firearm in an unattended vehicle during transport. It enacted Penal Code

section 25140, which states that: “[A] person shall, when leaving a handgun in an unattended vehicle, lock the

handgun in the vehicle's trunk, lock the handgun in a locked container and place the container out of plain view, lock

the handgun in a locked container that is permanently affixed to the vehicle's interior and not in plain view, or lock

the handgun in a locked toolbox or utility box.” (Cal. Pen. Code, § 25140; See Sen. Comm. Rep., Analysis of Sen.

Bill No. 869 [2015-2016 Reg. Sess.] Mar. 30, 2016). To make clear that this requirement also applied to law

enforcement personnel, the California legislature also passed Penal Code section 25452, which explicitly states so.

The City of San Francisco – noting an “absolute explosion of auto burglaries” in the city – enacted an equivalent

local law to promote its “strong local interest in preventing the theft of firearms from unattended vehicles.” (See S.F.

Police Code § 3600(B) (2016)).





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remain in place until such time as the firearm is ready to load and put into service.” (Id. at pg.

136-37).

The 2014 BLM Manual Handbook outlines the following requirements for “Transport,

Storage, and Maintenance” of firearms:

a. All firearms must be completely unloaded except when it is necessary that

they be readily available for their intended use. An employee returning a

loaded firearm to its place of issue must immediately lose their certificate of

firearms authorization and must be subject to disciplinary action.

b. When not under the direct control of an authorized employee, all firearms

stored for issue must be secured; unloaded with the action open; and in a

locked safe, vault, or other approved firearms storage container. Access to

firearms storage containers must be limited to those employees designated and

authorized to possess, carry, or use firearms.

c. All firearms in transport or temporary storage must have a functioning

trigger locking device in place and locked. The placement of the firearm in a

locking gun safe or carrying case does not negate this requirement. The key to

the trigger locking device must, at all times, be in the secure possession of the

employee that is responsible for the firearm.

d. Firearms and ammunition must not be left unattended in motor vehicles or

watercraft unless they are physically secured from theft and out of public

view.

g. Ammunition must be stored in a locked safe, vault, or other BLM- or

office- approved storage container.

(Cordova Decl., Exhibit 9 (BLM HANDBOOK, Rel. 1-1761) at pg. 37-38).

Even the National Rifle Association (NRA) “Guide To The Interstate Transportation Of

Firearms”, which was notably published in January of 2015 before Ranger Woychowski’s trip,

advises:

Many states and localities have laws governing the transportation of firearms.

Travelers must be aware of these laws and comply with legal requirements in

each jurisdiction. There is no uniform state transportation procedure for firearms.

If in doubt, a traveler should carry firearms unloaded, locked in a case, and

stored in an area (such as a trunk or attached toolbox) where they are

inaccessible from a vehicle’s passenger compartment and not visible from

outside the vehicle. Any ammunition should be stored in a separate locked

container. Title 18 Part 1 Chapter 44 s926A.4

4 “Guide To The Interstate Transportation Of Firearms” (Jan. 2015) available at:

https://www.nraila.org/articles/20150101/guide-to-the-interstate-transportation (last accessed Nov. 1, 2019).





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“Under [the Firearms Owners’ Protection Act], notwithstanding any state or local law, a

person is entitled to transport a firearm from any place where he or she may lawfully possess and

carry such firearm to any other place where he or she may lawfully possess and carry it, if the

firearm is unloaded and locked out of reach.”5 Further, under the header “Transportation by

Motor Vehicle”, the NRA advises: “In most states, firearms may be transported legally if

they are unloaded, cased, and locked in the automobile trunk or otherwise inaccessible to

the driver or any passenger.”6

IV. LEGAL ARGUMENT ON CAUSATION

A. Substantial Factor--not Proximate Cause--is The Operative Standard In

California When There Is An Allegation Of Concurrent Or Independent

Causation

Defendant misstates the standard on causation that applies in this case by citing to State

Dep’t of State Hops. v. Superior Court, 61 Cal.4th 339, 352-53. In footnote 12 the Court

explicitly pointed out: “[i]n cases where concurrent independent causes contribute to an injury,

we apply the ‘substantial factor’ test … . This case does not involve concurrent independent

causes, so the ‘but for’ test governs questions of factual causation. (Id. at 352, fn. 12).

“The substantial factor standard is a relatively broad one, requiring only that the

contribution of the individual cause be more than negligible or theoretical. Thus, ‘a force which

plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or loss is not a

substantial factor’, but a very minor force that does cause harm is a substantial factor. This rule

honors the principle of comparative fault.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th

71, 79). California Civil Jury Instruction No. 430 states: “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.].”

5 Id.

6 Id.





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B. The Evidence, When Considered In a Light Most Favorable To Plaintiffs,

Supports A Finder Of Fact Being Able to Determine That Ranger

Woychowski’s Negligence Contributed To Kate’s Death

Here, Ranger Woychowski contributed to Kate’s death in four substantial ways: (1) he

made his vehicle an attractive subject for smash and grab thieves; (2) he left an unsecured

firearm in the attractive subject for smash and grab thieves; (3) he left the unsecured firearm

loaded; and (4) he did not equip the unsecured firearm with the trigger safety lock provided to

him by BLM and required to be used.

The theft and injury occurred less than half a mile apart on the same road. The event

causing harm was wholly related to the negligent act -- but for the negligent act, Mr. Lopez-

Sanchez would not have come into possession of a firearm. He was a convicted felon, and he

was not looking for the firearm when he found it.7 After immediately finding it, the gun

“accidentally” went off because there was no trigger safety lock on it and it was fully loaded. Mr.

Lopez-Sanchez had no motive to kill Kate.

C. Four Days Between Time of Theft and Time of Injury Cannot, In and Of

Itself, Bar A Finding Of Causation Here

Defendant cites to Carrera v. Maurice J. Sopp. & Son, 177 Cal.App.4th 366, 371, 385

(2009) for its distinguishment between injury occurring one week after theft and injury occurring

two days after the theft. The Carrera court cited to Avis Rent a Car System, Inc. v. Superior

Court (1993) 12 Cal.App.4th 221, as standing for the proposition that a week in time breaks the

causal chain. However, the Avis court never reached causation and only discussed whether a duty

should be applied in the case. After determining there was no duty, the Avis court stated in dicta:

“[e]ven if we were somehow to find the circumstances "special," we would not extend the duty

7 In order to legally possess a firearm in California, a person must submit to and pass a background check

conducted by the California DOJ. See Cal. Pen. Code §§ 26850, 28220, 31640; Cal. Code Regs. tit. 11 § 4256.

Persons prohibited from purchasing or possessing a firearm in California include those who: (1) have been convicted

of a felony. See Cal. Pen. Code §§ 29800(a), 29805, 29900-29905; see also § 29905(a)(27).





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to this accident. The duty, if it existed, would not be perpetual and unlimited in scope. We

conclude, as a matter of law, that it would not extend to this accident: (1) in another county (2)

one week later (3) during a police chase not caused by a report of the vehicle theft.” (Avis Rent a

Car System, Inc. v. Superior Court (1993) 12 Cal.App.4th 221, 233.) Importantly, even in these

circumstances, the Avis court did not find that the gap in time between the theft and injury

dispositive, but rather considered the entirety of the circumstances, including the geographic

difference between theft and harm and whether the event causing harm flowed from the

negligent act.

D. Criminal Conduct Does Not Break Casual Chain If That Conduct Itself

Foreseeably Flows From Original Negligent Act

The California Supreme Court case Richardson v. Ham (1955) 44 Cal.2d 772 is

particularly instructive on how intervening negligent or criminal acts do not break the causal

chain. In that case, the Court held a defendant liable for failing to secure a bulldozer that was

stolen by youth and recklessly driven, causing injuries:

It is contended, however, that even if defendants were under a duty to protect

plaintiffs from injuries from operation of the bulldozer caused by ordinary

intermeddlers, they were not under a duty to protect plaintiffs from intermeddlers

who deliberately undertook to operate the bulldozer, or, in other words, that the

intentional misconduct of the young men constituted a superseding cause of

plaintiffs' injuries. It is settled, however, that ‘If the realizable likelihood that a

third person may act in a particular manner is the hazard or one of the hazards

which makes the actor negligent, such an act whether innocent, negligent,

intentionally tortious or criminal does not prevent the actor from being liable for

harm caused thereby.’”

(Id. at 777 [citations omitted]).

And again in Weirum (the radio contest, disc jockey driving accident, wrongful death

case), the California Supreme Court instructed:

It is of no consequence that the harm to decedent was inflicted by third parties

acting negligently. Defendant invokes the maxim that an actor is entitled to

assume that others will not act negligently. (Porter v. California Jockey Club, Inc.

(1955) 134 Cal.App.2d 158, 160.) This concept is valid, however, only to the

extent the intervening conduct was not to be anticipated. (Premo v. Grigg

(1965) 237 Cal.App.2d 192, 195.) If the likelihood that a third person may

react in a particular manner is a hazard which makes the actor negligent,

such reaction whether innocent or negligent does not prevent the actor from





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being liable for the harm caused thereby. (Richardson v. Ham (1955) 44 Cal.2d

772, 777.)

(Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 47.)

Plaintiff does not contest Defendant’s representation of facts in the Texas case Ambrosio

v. Carter's Shooting Ctr., Inc. (Tex.Ct.App. 2000) 20 S.W.3d 262. The crime in which the gun

was used occurred at least two weeks after the gun was stolen, occurred in a different county,

and was committed by someone other than the original thief.” (Id. at 268-269). However, the

Ambrosio’s court reasoning as to why these facts matter is especially important for

understanding the distinction between Ambrosio and this case:

In the case before us, appellee's conduct (failing to exercise care in the storage and

display of its firearms) did nothing more than create the condition that enabled Monsivaiz

to steal the gun. The forces generated by appellee's failure to safely maintain its guns

had come to rest long before Guerrero murdered Alek Ambrosio.

...

From the time the gun was stolen, the gun changed hands at least four times. To suggest

that if Monsivaiz had not been able to steal the gun, Guerrero would not have ended

up with it and would not have murdered Alek Ambrosio is nothing more than

causation in the "philosophic sense," which has been rejected as insufficient to

establish legal cause. Indeed, appellants failed to provide summary judgment proof

raising a fact issue as to how appellee's failure to safely maintain its guns was a

substantial factor in bringing about the injury which would not otherwise have occurred.

(Ambrosio v. Carter's Shooting Ctr., Inc. (Tex.Ct.App. 2000) 20 S.W.3d 262, 268-269.)

In essence, the facts in Ambrosio suggested that the murder would have occurred

regardless of the particular gun the murdered used. Regardless of whether or not the original

theft had occurred. The same is not true here.

V. CONCLUSION

For the aforementioned reasons, this Court should deny the USA’s Motion for Summary

Judgment.

Dated: November 1, 2019 COTCHETT, PITRE & McCARTHY, LLP

By: /S/ Alison E. Cordova

ALISON E. CORDOVA

Attorneys for Plaintiffs





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CERTIFICATE OF SERVICE

I am employed in the County of San Mateo; I am over the age of 18 years and not a party

to the within cause. My business address is the Law Offices of Cotchett, Pitre & McCarthy,

LLP, San Francisco Airport Office Center, 840 Malcolm Road, Suite 200, Burlingame,

California, 94010. On this day, I served the following document(s) in the manner described

below:

Pursuant to L. R. Rule 135(c), I certify that the foregoing document is being served upon

all counsel of record for Defendant United States of America. at their e-mail addresses on record

with CM/ECF.

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION

TO DEFENDANT UNITED STATES OF AMERICA’S NOTICE OF MOTION AND

MOTION FOR SUMMARY JUDGMENT

Margaret W. Baumgartner

Deputy City Attorney

Office of the City Attorney

1390 Market Street, 6th Floor

San Francisco, California 94102

Tele: (415) 554-3859

Fax: (415) 554-3837

E-Mail: [email protected]

COUNSEL FOR DEFENDANTS:

CITY AND COUNTY OF SAN FRANCISCO

& ROSS MIRKARIMI

Brian J. Stretch

US Attorney

Sara Winslow

Chief, Civil Division

Robin M. Wall

Assistant US Attorney

450 Golden Gate Ave., Box 36055

San Francisco, CA 94102-3495

Tel: (415) 436-7071

Fax: (415) 436-6748

Email: [email protected]

COUNSEL FOR DEFENDANT:

UNITED STATES OF AMERICA

I declare under penalty of perjury, under the laws of the State of California, that the

foregoing is true and correct. Executed at Burlingame, California, on November 1, 2019.

/s/ Alejandra Prado


FRANK M. PITRE (SBN 100077) ALISON E. CORDOVA (SBN …...plaintiffs’ memorandum of points and...

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