HomeMy WebLinkAboutDEPOSITION 2003 SYLVIA
MENDEZ
& ASSOCIATES
Certified Shorthand Reporters
1675 Chester Avenue, Suite 360
Bakersfield, CA 93301
(661) 631-2904 - Fax (661) 631-2969
July 14, 2003
Howard Hunter Wines, III
c/o Bahersfield Fire Department
1715 Chester Avenue
Bakersfield, California 93301
RE: Chang Bob Klm, et al. vs. Bong Un Kang, et al.
Superior Court Case No. 247753 JES, County of Kern
Dear Mr. Wines:
Enclosed is the original of your deposition, which was taken in the above-captioned action by
Robert E. Murphy, Attorney at Law, on Friday, June 27, 2003, reported by the undersigned.
Wh~le reading your transcript, you may make additions, deletions, or changes by drawing a line
through your testimony and printing the change above it. Please also initial the same. If more
room is required for changes, you may use the Errata Sheet enclosed at the end of the transcript.
Also subscribe to the same under the penalty of perjury by signing "Howard Hunter Wines, III"
on Line 23 of Page 70 and by filling in the date on Line 14 of Page 70.
Once you have read and signed your transcript, please forward in the enclosed envelope to
Robert E. Murphy, Attorney at Law.
Your prompt attention to this matter will be appreciated.
Sincerely yours,
Ruthanne Esparza, CSR No. 7125
ench transcript and envelope
cc to: Lori Wade, Attorney at Law
N. Thomas McCartney, Attorney at Law
Robert E. Murphy, Attorney at Law
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF KERN
CHANG BOK KIM, an )
individual, and JUNG YE )
KIM, an individual, ) Case No.
)
Plaintiffs, ) 247753 JES
)
VS. )
)
BONG UN KANG, an. )
individual; SOUK JA KANG, )
an individual; ANN M. )
CHOUNG, an individual; L. )
STROOPE, INC., dba STROO?E )
REALTORS GMAC REAL ESTATE, )
a California corporation, )
and ,DOES 1 to 50, )
inclusive, )
)
Defendants. )
)
DEPOSITION OF:
HOWARD HUNTER WINES, III
FRIDAY, JUNE 27, 2003
1:15 P.M.
Reported By: Ruthanne Esparza, CSR No. 7125
SYLVIA
MENDEZ
& ASSOCIATES
Ccrtificd Shorthand Reporters
675 Chesler Avenue. Suite 360
ORIGINAL
(661) 631-2904 · Fax (661) 631-2969
1 Deposition of HOWARD HUNTER WINES, III, a Witness,
2 taken on behalf'of the Defendants Ann M. Choung and
3 L. Stroope, Inc., on Friday, June 27, 2003, 1:15 p.m.,
4 at the Law Offices of N. Thomas McCartney,
5 1920 20th Street, Bakersfield, California, before
6 Ruthanne Esparza, CSR No. 7125, pursuant to Notice of
7 Taking Deposition.
8
9 APPEARANCES OF COUNSEL
10
For the Plaintiffs: Law Office of Ron S. Galperin
11 By: RON S. GALPERIN,
LORI WADE and
12 PETER NIEMIEC
Attorneys at Law
13 9460 Wilshire Boulevard
Suite 500
14 Beverly Hills, California 90212
(310) 278-6831
15
16 For the Defendants Law Office of N. Thomas McCartney
Bong Un Kang and By: N. THOMAS McCARTNEY
17 Souk Ja Kang: Attorney at Law
1920 20th Street
18 Bakersfield, California 93301
(661) 334-8011
19
For the Defendants Manning & Marder
20 Ann M. Choung and Kass, Ellrod, Ramirez, LL?
L. Stroope, Inc.: By: ROBERT E. MURPHY
21 Attorney at Law
660 South Figueroa Street
22 23rd Floor
Los Angeles, California 90017
23 (213) 624-6900
24
25
2
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 APPEARANCES (CONTINUED)
2 Also Present: Plaintiff Chang Bok Kim
Sung Kim
3 Defendant Souk Ja Kang
Defendant Bong Un Kang
4 K. C. Bang
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 INDEX
2
3 THE WITNESS
4 HOWARD HUNTER WINES, III
5
6 EXAMINATION BY Page
7 Mr. Murphy 9
8 Mr. McCartney 46
9 Mr. Galperin 51
10
11 EXHIBIT INDEX
12 Plaintiffs' Exhibits Marked
13 8 - Correction Notice dated 03/05/99 65
14 9 - City of Bakersfield Office of
15 Environmental Services Inspection
16 Record 65
17
18
19
20
21
22
23
24
25
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 BAKERSFIELD, CALIFORNIA;
2 FRIDAY, JUNE 27, 2003; 1:15 P.M.;
3 LAW OFFICES OF N. THOMAS McCARTNEY
4
5 HOWARD HUNTER WINES, III,
6 called as a witness by counsel for the Defendants Ann
7 M. Choung and L. Stroope, Inc., having been first duly
8 sworn, testified as follows:
9
10 MR. McCARTNEY: We're here for the deposition
11 of Mr. Wines, and also present is an individual by the
12 name of Peter, and I don't know how to pronounce his
13 name.
14 MR. GALPERIN: Niemiec.
15 MR. McCARTNEY: Niemiec, spelled
16 N-i-e-m-i-e-c. And I, for one, question whether
17 Mr. Niemiec has the right to be here in this
18 deposition. The basis for this concern is that I do
19 not believe that we have been provided with any reason
20 to believe that Mr. Niemiec is a member of
21 Mr. Galperin's firm. And it's my view that he is not
22 a member of Mr. Galperin's firm and he's not
23 associated as an attorney of record in the proceeding,
24 that he is a stranger to these proceedings, has no
25 right to participate or even attend the deposition.
5
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Counsel, on the record, has requested that I
2 provide authority for my position. But obviously,
3 we've just been presented with this situation; so I
4 don't have any authority. But I doubt he does,
5 either.
6 But, anyway, Mr. Galperin, help yourself.
7 MR. GALPERIN: I'm Ron Galperine. Let me
8 state for the record that I vehemently disagree
9 respectfully with counsel, that he has provided
10 absolutely no authority whatsoever for his thought
11 that Mr. Niemiec is a stranger to this proceeding,
12 .that Mr. Niemiec has been working on this case for
13 several months now. He works on a contract basis for
14 my office. He is paid through my office. He is
15 covered through my malpractice insurance coverage.
16 The clients have long known about him and have, in
17 fact, talked with him and dealt with him through my
18 office, as well. Again, no authority has been
19 provided.
20 Let me also add that the purpose of discovery
21 is fact finding, not game playing. And if counsel is
22 really interested in discovering the facts of this
23 case, he has nothing to worry about.
24 And finally, let me state for the record that
25 both counsel have due to my office and to my clients
6
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 today sanctions for their failure to provide
2 discovery, sanctions that were ordered by the court;
3 and I, indeed, look forward to receiving those
4 sanctions by end of day.
5 MR. McCARTNEY: For the record, then, I
6 looked forward to being reimbursed for about the
7 $1,500 that I spent on the court interpreter yesterday
8 requested by your office for depositions which I did
9 not notice. So if you want to change the subject
10 that's something that is irrelevant to the issue
11 before us, we can, Counsel. But I suggest that we're
12 better off arguing about the merits of this particular
13 position, which is what I'd like to get to.
14 Now we're faced with a dilemma. I, of
15 course, do have research capabilities here at my beck
16 and call; you~don't. I don't want to keep Mr. Wines
17 here unduly, but what I'm going to do, if I can find
18 out in a minute or two, is I'm going to excuse myself
19 from the deposition, ask Mr. Murphy to start the
20 deposition in the usual ways with the admonitions, and
21 I'll see if I' can find something in 5 or 10 minutes.
22 If I can't do it in 5 or 10 minutes, I am still going
23 to take the same position unless I find contrary
24 authority, which is: Mr. Niemiec is a stranger to
25 these proceedings, has no right to be here, has no
7
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 right to ask any questions; and if he does ask
2 questions, I'm going to take the position that those
3 questions be stricken from the record, as well as the
4 answers.
5 MR. GALPERIN: Let me state that I vehemently
6 disagree with any such answers being stricken from the
7 record and that he has every single right to ask
8 questions.
9 MR. MURPHY: I am going to join in everything
10 that Mr. McCartney said. I'm not going to repeat it.
11 Anyway, why don't we get going.
12 MR. GALPERIN: One final thing for the
13 record, which is, it's very clear as we start this
14 that defense counsel is interested in gamesmanship and
15 playing of games rather than in finding out the facts,
16 which is unfortunate, indeed.
17 MR. NIEMIEC: I'd like to add just one
18 comment, and that is that in my experience, it is
19 quite common for contract counsel not only to appear
20 at depositions but to make appearances in court
21 through the office for which that counsel is acting as
22 a contract counsel.
23 MR. MURPHY: Well, that may or may not be
24 true. It depends upon the situation. And the problem
25 I have here is that, you know, I don't know who you
8
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 are. You come in with a card where you've crossed off
2 Ron Galperin's name and you've written in your own
3 name. You tell me that your, quote, "other office" is
4 in -- you said South Bay -- I think you clarified a
5 little more to say Manhattan Beach. So, you know, I
6 dare say that if I was to call there right now and ask
7 for you, you would probably don't have office space
8 there. And if your -- if this is a contract
9 situation -- I don't know if it is or it isn't -- the
10 problem is I'm being presented with the situation at
11 the last minute. I don't know -- you know, if there
12 is an association of attorneys or something else that
13 clarified it to me a little beforehand, that would
14 have been nice. And to get up on your pompous altar
15 and start saying what you are saying today is also
16 very nice, you know. I just think it's ridiculous.
17 Let's go.
18 (Attorney McCartney exits the deposition
19 room.)
20
21 EXAMINATION
22 BY MR. MURPHY:
23 Q. All right. What is your name, sir?
24 A. Howard Hunter Wines, III.
25 Q. Mr. Wines, are you presently employed?
9
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. Yes.
2 Q. Where do you work?
3 A. At the Bakersfield Fire Department.
4 Q. And have you ever had your deposition taken
5 before, sir?
6 A. Yes.
7 Q. Approximately how many times?
8 A. Once.
9 Q. Was that in a civil litigation case?
10 A. Yes.
11 Q. Ail right. Approximately how long ago was
12 that?
13 A. Approximately 11 years ago.
14 Q. Well, since it wasn't in recent times, I will
15 just give you a little refresher.
16 The young lady to your right is a court
17 reporter. She's going to take down everything that is
18 said in about, hopefully, two weeks' time. It's going.
19 to be typed up and made available to you to read and
20 review and make corrections if you believe it to be
21 necessary.
22 If you make a change that an attorney
23 involved in the case believes to an important or
24 material change, that can be commented upon to the
25 effect that you said one thing here today and later
10
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 changed your testimony to state something different.
2 And if you were to appear as a witness at a trial,
3 that could be mentioned.
4 Do you understand?
5 A. Yes.
6 Q. It could affect your credibility.
7 Do you understand?
8 A. Yes.
9 Q. All right. Now, when you receive the
10 transcript, you're going to have the opportunity to
11 sign it pursuant to the penalties of perjury, which
12 gives your testimony here the same force and effect as
13 if it were in a court of law.
14 Is that clear?
15 A. Yes.
16 Q. If there is any question that is put to you
17 that you do not understand for any reason, I want you
18 to let us know. We will be more than happy to repeat
19 or rephrase it. The problem is we don't read minds;
20 so we have to rely on you to tell us if you are having
21 a problem.
22 All right?
23 A. Yes.
24 Q. We probably are going to ask you some
25 questions about time frames. That's going to be
11
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 asking you to give us an estimate. And frequently
2 that could be, "Well, when did this occur?" "When did
3 that occur?" "How long were you at the place?" "How
4 long did that take?" No one expects that you were
5 there with a stopwatch. Or someone may say, "How long
6 was the piece of pipe?" You know, nobody expects that
7 you necessarily had a tape measure. So if you can
8 give us an approximation, we're entitled to know what
9 that is.
10 On the other hand, if you don't know an
11 answer to something and you go ahead and give an
12 answer, that's guessing. We really don't want you to
13 do that.
14 Do you understand the differences?
15 A. Yes.
16 Q. Is there anything that I've told you so far
17 that you have not understood?
18 A. No.
19 (Attorney McCartney enters the deposition
20 room.)
21 MR. MURPHY: Perfect timing.
22 MR. McCARTNEY: Well, keep going. I'm still
23 looking.
24 MR. MURPHY: All right.
25 III
12
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 BY MR. MURPHY:
2 Q. How far did you go in school, sir?
3 A. I have a master's degree.
4 Q. In what subject?
5 A. Public administration.
6 Q. When did you obtain that?
7 A. 1996.
8 Q. And you have been with the Bakersfield Fire
9 Department for 11 years. Did I understand that
10 correctly?
11 A. I've been with the Bakersfield Fire
12 Department for 10 years.
13 Q. All right. And when you joined the
14 Bakersfield Fire Department, what was your job title
15 when you first joined?
16 A. Hazardous materials technician.
17 Q. And what did a hazardous materials technician
18 do at that time?
19 A. I reviewed cases of leaking underground fuel
20 tanks and also risk management and prevention plans
21 for businesses which handled acutely hazardous
22 materials.
23 Q. Now, when you say "acutely hazardous
24 materials," what do you mean by that?
25 A. Those are chemicals that have been identified
13
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 as being more hazardous than most other hazardous
2 materials.
3 Q. Now, where did you do your training to become
4 a member of the Bakersfield Fire Department, in other
5 words, before you joined?
6 A. I had previously been the hazardous materials
7 supervisor for the Kern County Fire Department.
8 Q. When did you join the Kern County Fire
9 Department?
10 A. 1987.
11 Q. And was.the Kern County Fire Department the
12 first fire department you worked for?
13 A. Yes.
14 Q. And did you have some form of training before
15 joining the Kern County Fire Department?
16 A. I had a bachelor of science degree in
17 geology.
18 Q. Where did you obtain that?
19 A. Cal state University, Bakersfield.
20 Q. What year did you obtain that?
21 A. 1984.
22 Q. Now, after you graduated from Cal State
23 Bakersfield in 1984, what did you do between then and
24 19877
25 A. I continued with my college studies, pursuing
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 a second baccalaureate degree in petroleum land
2 studies and also worked many part-time jobs.
3 Q. When you say "petroleum land studies," what
4 does that mean?
5 A. The curriculum is intended to prepare the
6 student for a career representing oil companies who
7 desire to obtain a lease for the purpose of drilling
8 for oil.
9 Q. Did you, in fact, get a bachelor's degree in
10 that subject area?
11 A. Yes.
12 Q. And when did you obtain that, approximately?
13 A. 1989.
14 Q. Now, when you first joined the Kern County
15 Fire Department in 1987, did you go directly into the
16 Hazardous Materials Unit?
17 A. Yes.
18 Q. Have you ever been a firefighter, per se?
19 A. No.
20 Q. And what were your job duties in the
21 Kern County Fire Department Hazardous Materials Unit?
22 A. Initially as a hazardous materials inspector;
23 subsequently, as a hazardous materials specialist; and
24 later, as a hazardous materials supervisor for other
25 hazardous material inspectors.
15
SYLVIA MENDEZ & ASSOCIATES - 661) 631-2904
1 Q. Now, at the time you joined the Kern County
2 Fire Department in 1987, what were the duties of a
3 hazardous materials inspector?
4 A. Could you repeat the question.
5 Q. Certainly.
6 You indicated that your first position with
7 the Kern County Fire Department was as a hazardous
8 materials inspector.
9 Did I understand that correctly?
10 A. Yes.
11 Q. What were your job duties?
12 A. I would inspect businesses for their use,
13 storage, and handling of hazardous materials pursuant
14 to the Uniform Fire Code and state laws which governed
15 the use and handling of hazardous materials.
16 Q. And basically did you cover all of Kern
17 County at that time?
18 A. Yes. With the exception of the city of
19 Bakersfield, within the city limits.
20 Q. And when did you become a hazardous materials
21 specialist with the Kern County Fire Department,
22 approximately?
23 A. 1989.
24 Q. What were your job duties as hazardous
25 materials specialist?
16
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. They were essentially the same. It was a
2 reclassification based upon having obtained a
3 four-year college degree.
4 Q. So it was a reclassification with
5 essentially the same job duties?
6 A. 'Yes.
7 Q. And when did you become a supervisor for the
8 Hazardous Materials Unit for County of Kern?
9 A. 1990.
10 Q. Now, if you joined the Bakersfield Fire
11 Department about 10 years ago, are we talking about
12 approximately 19937
13 A. February of 1994.
14 Q. And when you joined the Bakersfield Fire
15 Department, were you immediately put into the
16 Hazardous Materials Unit?
17 A. Yes.
18 Q. What was your position at that time?
19 A. Hazardous materials technician.
20 Q. Now, you've already told me what you did as a
21 hazardous materials technician.
22 How long did you hold that job title,
23 approximately?
24 A. Until approximately 1998.
25 Q. And what was your job position at that time
17
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 when it changed?
2 A. I was reclassified to hazardous materials
3 specialist.
4 Q. Was there any difference in the job duties at
5 that time?
6 A. Yes.
7 Q. What did you do as a hazardous material
8 specialist?
9 A. My job duties expanded to include the
10 regulation of hazardous wastes in addition to my
11 former duties.
12 Q. Would you perform inspections of gas stations
13 as part of your job duties with the City of
14 Bakersfield at that time?
15 A. I am not the primary inspector of gas
16 stations. My job duties involve the investigation of
17 leaking underground fuel tanks.
18 Q. So if a condition is determined to relate to
19 a leaking underground gas s%orage tank, then you would
20 be called in?
21 A. Yes.
22 Q. Who is the primary inspector -- or inspectors
23 if it's more than one person -- for the City of
24 Bakersfield for gas stations?
25 A. St-eve Underwood.
18
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. And what is his present job title?
2 A. I don't know his exact job title.
3 Q. Ail right. What do you understand his job
4 duties to be?
5 A. He is a fire prevention inspector and code
6 enforcement officer.
7 Q. Does he work with the Hazardous Materials
8 Unit?
9 A. Yes.
10 Q. Do you know how long Steve Underwood has been
11 in that unit?
12 A. Not exactly, but I believe he started
13 approximately 1997.
14 Q. Who is your supervisor within the unit?
15 A. Ralph Huey, H-u-e-y.
16 Q. And what is his job title, if you know?
17 A. Director of prevention services.
18 Q. Do you know approximately how long Mr. Huey
19 has had that position, approximately?
20 A. His title was reclassified approximately
21 two years ago.
22 Q. Do you know what title he had before that?
23 A. Director of environmental services.
24 Q. Was it just a name change, essentially, to
25 your knowledge or understanding?
19
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. No. It involved additional duties.
2 Q. Do you report directly to Ralph Huey as part
3 of your job?
4 A. Yes.
5 Q. Now, we have asked you to appear here today
6 as a witness in a awsuit, and the subject matter of
7 the lawsuit is an ARCO station at 1102 34th Street in
8 Bakersfield.
9 Have you ever been to that gas station?
10 A. Yes.
11 Q. Have you ever inspected or done any work on
12 behalf of the City of Bakersfield or the County of
13 Kern relating to that gas station?
14 MS. WADE: Objection. Compound.
15 Can you break it down to two different parts?
16 MR. MURPHY: Sure.
17 BY MR. MURPHY:
18 Q. Have you ever done any work for the City of
19 Bakersfield relating to that gas station?
20 A. Yes.
21 Q. In what capacity?
22 A. Both inspecting a component modification as
23 well as investigating the report of a leaking
24 underground fuel tank.
25 Q. Now, was that two separate occasions or two
2O
SYLVIA MENDEZ & ASSOCIA-ES (661) 631 2904
1 duties on one occasion?
2 A. Two separate occasions, at least.
3 Q. Which occurred first in time?
4 A. Modification to the underground fuel tanks
5 system.
6 Q. Do you recall approximately when you first
7 became involved in inspection relating to a component
8 modification of the underground storage system?
9 A. I do not recall exactly but, to the best of
10 my recollection, approximately 1995 or 1996.
11 Q. Do you recall the circumstances of how you
12 became involved at that time?
13 A. I believe a section of piping required a
14 repair to one of the dispensers, and I performed an
15 inspection on that piping installation.
16 Q. Now, was anyone else involved with you at
17 that time from the City of Bakersfield Fire Department
18 Hazmat Unit?
19 A. At that time there was another inspector who
20 was the primary underground storage tank inspector.
21 His name is Mark Turk, T-u-r-k.
22 Q. Is Mark Turk still with the department?
23 A. No.
24 Q. When approximately did he leave?
25 A. Approximately 1997 or perhaps just prior to
21
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 1997. Prior to Steve Underwood's initial hiring.
2 Q. Did Steve Underwood come in to replace
3 Mark Turk, essentially?
4 A. Yes.
5 Q. Now, when was your next involvement with this
6 particular gas station? And we don't want you to
7 guess. If you're not sure, that's fine.
8 A. It would have to be at the time that Mr. Kim
9 and Ms. Ann Choung requested a file review for this
10 station.
11 Q. Did you have an understanding that Mr. Kim
12 was a potential buyer of this gas station at that
13 time?
14 A. Yes.
15 Q. Did you have an understanding that Ms. Choung
16 was a real estate agent?
17 A. Yes.
18 Q. Now, when you talk about a "file review,"
19 what do you mean by that?
20 A. Mr. Kim and Ms. Choung had asked to review
21 the regulatory file to ascertain the compliance status
22 and if there were records which indicated that the
23 underground fuel tanks had leaked.
24 Q. Do you recall which of the two persons made
25 that request to set up the meeting?
22
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. The meeting was requested by Ms. Ann Choung.
2 Q. Did Mr. Kim and Ms. Choung attend the meeting
3 with you for that purpose?
4 A. Yes.
5 Q. And where was that meeting conducted, if you
6 recall?
7 A. In our office.
8 Q. Where is that office?
9 A. 1715 Chester Avenue, on the third floor.
10 Q. Now, had you ever conducted a meeting of this
11 nature before with a potential buyer?
12 A. Yes.
13 Q. Is there a typical way that you would handle
14 those meetings at that time -- things you would do?
15 A. I would be available to answer any questions
16 they might have regarding the contents of the file.
17 Q. Would you also obtain the file and bring it
18 to the meeting?
19 A. Yes. Or our recePtionist would do the same.
20 Q. One way or the other, the file would get to
21 the meeting?
22 A. Yes.
23 Q. When you say "file review," what do you mean
24 by that?
25 A. This would be a review of the regulatory
23
SYLVIA MENDEZ & ASSOCIATES - (661 631-2904
1 correspondence and records which are kept in the file.
2 Q. Now, if the City of Bakersfield performed an
3 inspection of a gas station, would records regarding
4 that inspection go in a particular file?
5 A. Yes.
6 Q. How would that be labeled?
7 A. The individual record would be placed in the
8 file.
9 Q. What would the file be called? Would it be
10 the address of the business? the business name'?
11 A. The tab of the file would have both the
12 business name and the address.
13 Q. How far back would those records go at that
14 time?
15 A. State law was enacted in approximately 1984
16 requiring the regulation of underground storage tanks.
17 Typically, records would originate at about that time
18 period. The Bakersfield Fire Department had also
19 historically issued installation permits for
20 underground tanks going back as far as 1930.
21 Q. Now, did Mr. Kim and Ms. Choung meet you at
22 one of your offices in that building?
23 A. Yes.
24 Q. Was it just the three of you, or was anyone
25 else there?
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. To the best of my recollection, at the
2 init±al file review, it was 'the three of us.
3 Q. Do you recall what was discussed at the
4 initial file review?
5 A. There was a general desire to find out if the
6 station was currently in compliance with underground
7 storage tank regulations and if there were records
8 indicating any leaks from the underground storage
9 tanks.
10 Q. Now, did you understand that to be the
11 general desire, to use your words, before the meeting
12 took place?
13 A. Yes.
14 Q. Did you review the file materials to
15 familiarize yourself with those records before the
16 meeting was commenced, if you recall?
17 A. No. I can review the file with the client in
18 realtime during the meeting.
19 Q. Now, do you recall approximately when this
20 meeting took place?
21 A. I can't recall exactly.
22 Q. All right. Again, don't guess. "I don't
23 know" is an acceptable answer.
24 Do you recall what was discussed during this
25 meeting when you did the file review? This is the
25
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 initial file review.
2 A. I know I showed Mr. Kim and Ms. Choung that a
3 prior leak investigation had occurred and that the
4 records showed that the investigation case had been
5 completed.
6 Q. Do you recall what the record showed? When
7 you say "completed," I'm not sure what you mean by
8 that.
9 A. Prior to 1991, Kern County Environmental
10 Health Department was the investigating agency for~/
11 underground storage tank leaks. %~-efe were records in
12 that file from the Kern County Environmental Health
13 Department showing that they had investigated a leak,
14 that remedial actions were taken, and that the
15 Kern County Environmental Health Department was
16 satisfied with the results of the investigation and
17 required no further action at that time.
18 Q. Do you recall approximately what time period
19 those records indicated an investigation to have taken
20 place?
21 A. I don't recall exactly, but I think the time
22 frame was in the early 1990s.
23 Q. Do you recall any other or further discussion
24 regarding any investigation or other actions taken
25 with regard to the 34th Street ARCO gas station during
26
SYLVIA MENDEZ & ASSOCIA-ES (661) 631 2904
1 the initial file review that you had with Mr. Kim and
2 Ms. Choung?
3 A. Ms. Choung had specifically asked me to write
4 down for her benefit any upcoming testing or upgrade
5 procedures which were to occur at that site in the
6 foreseeable future.
7 Q. And do you recall doing so?
8 A. Yes.
9 MR. MURPHY: Okay. We don't we go off the
10 record for a second.
11 (Discussion held off the record from
12 1:51 to 1:52.)
13 BY MR. MURPHY:
14 Q. Mr. Wines, I'm going to show you what's been
15 marked as Exhibit 7 to a prior deposition, ask you to
16 take a look at that if you would be so kind.
17 A. Yes.
18 Q. All right. Do you recognize that document?
19 A. Yes.
20 Q. Is any of that handwriting on that document
21 your handwriting?
22 A. Yes.
23 Q. Is any of the handwriting on that document
24 not your handwriting?
25 A. No, with the exception of the number "7" in
27
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 the bottom corner.
2 Q. That I just wrote?
3 A. Yes.
4 Q. A quick test, but you passed it very well.
5 Sorry.
6 Did you prepare this document in response to
7 the request from Ms. Choung?
8 A. Yes.
9 Q. And is this the information that Ms. Choung
10 requested that you write down for her relating to
11 upcoming testing or upgrade that would be necessary in
12 the foreseeable near future?
13 A. Yes.
14 Q. And the top line is an indication of the
15 property that you were referencing in this four-item
16 list; is that correct?
17 A. Yes.
18 Q. Item 1 relates to what, sir?
19 A. Item 1 relates to the annual maintenance
20 check on the leak monitoring system.
21 Q. And what is your understanding of what a leak
22 monitoring system is?
23 A. It is an electronic device which measures the
24 fluid level in the tank to indicate whether the fluid
25 level is dropping, possibly indicating a leak in the
28
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 fuel tank.
2 Q. And this annual check is performed by what
3 agency or what company? Is it private, or is it a
4 public entity inspection?
5 A. The annual leak monitoring checks are
6 performed by qualified, licensed contractors.
7 Q. And do they have to certify that the check
8 was performed?
9 A. Yes.
10 Q. And does that have to be submitted to the
11 City of Bakersfield Fire Department Hazmat Unit or
12 some other agency?
13 A. It is either submitted or it is verified
14 through inspection.
15 Q. Okay. What is Item No. 2?
16 A. Item No, 2 relates to a tank lining
17 inspection by a coatings expert.
18 Q. And was there a date by which that had to be
19 performed?
20 A. Yes. Prior to October of 2001.
21 Q. And again, the coatings expert would be an
22 outside individual that was qualified to perform those
23 inspections?
24 A. Yes.
25 Q. And what is Item No. 3 on your list on
29
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Exhibit 7?
2 A. Item No. 3 relates to a cathodic protection
3 system inspection by a corrosion engineer.
4 Q. And was there a time by which that was to be
5 completed?
6 A. It was required to be completed by September
7 of 2002.
8 Q. And what was No. 4 on the list?
9 A. No. 4 relates to dispenser pans and turbine
10 sump containment installed by December of 2002.
11 Q. And what does dispenser pans and turbine sump
12 containment refer to?
13 A. It refers to structures installed either
14 beneath the turbine -- or I'm sorry -- structures
15 around the turbine or beneath the dispenser which are
16 intended to collect any leaking fuel from those
17 components of the underground storage tank system.
18 Q. And what was the due date on that item?
19 A. December of 2002.
20 Q. Now, initially, did you just write on this
21 particular document the caption title we discussed
22 before and then Items 1 through 4?
23 A. Yes.
24 Q. Did Ms. Choung come back to you at a later
25 time and ask that you identify on this document and
3O
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 the fact that you had prepared it?
2 A. Yes.
3 Q. And did you do that, sir?
4 A. I did.
5 Q. All right. And below it says, "Written by
6 Howard Wines, Hazmat Specialist, Bakersfield Fire
7 Department during office file review by Mr. Klm and
8 Ms. Choung prior to purchase of property on or around
9 fall of --" I can't tell if that is "2000" or
10 "2001," kind of chopped off on the copy "-- attested
11 to 10/15/02," and there's a signature.
12 Is that your signature?
13 A. Yes.
14 Q. All right. And you wrote that?
15 A. I did.
16 Q. Okay. Do you recall anything else that was
17 discussed during this initial office file review?
18 A. No.
19 Q. Now, did you have any further or other
20 additional meetings with Ms. Choung or Mr. Klm
21 regarding this property?
22 A. Yes.
23 Q. When did that occur the next time?
24 A. I don't know exactly, but it was subsequent
25 to the required tank lining inspection.
31
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. Where did the meeting take place?
2 A. In ~ur off±ce.
3 Q. Who was present?
4 A. I don't recall exactly who all was present.
5 Q. Do you recall if Mr. Kim was there?
6 A. Yes.
7 Q. Do. you recall if Ann Choung was there?
8 A. Yes.
9 Q. Do you know Mr. Kang?
10 A. I believe Mr. Kang was also present at that
11 subsequent meeting.
12 Q. What was the purpose of that meeting, as you
13 understood it?
14 A. During the course of that tank lining
15 inspection, it was determined that a leak had occurred
16 from the underground storage tank system, presumably
17 from the turbine area of at least one of those
18 underground fuel tanks.
19 Q. Now, when you say "presumably," why are you
20 using that word?
21 A. Because the soil which was uncovered from the
22 tops of those tanks during that investigation was
23 widely impacted with gasoline, and two of the tanks
24 were situated in close proximity to each other;
25 therefore, it was difficult to determine at that time
32
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 which of the two tanks was primarily responsible for
2 that release.
3 Q. Do you recall which of the two -- which two
4 tanks those were? Don't guess. If you don't recall,
5 that's fine. Just if you recall.
6 A. The two tanks which are oriented east and
7 west, closest to the market building.
8 Q. So if I understand you correctly, the area
9 which appeared to have gasoline in the soil was in the
10 area of the two tanks, and it was difficult to tell
11 which one of the two tanks had been the primary
12 source?
13 A. Yes.
14 Q. And I take it, to make this observation, you
15 were out at the site, yourself?
16 A. Yes.
17 Q. Do you recall why you were at the site?
18 A. Specifically to obtain a soil sample to
19 analyze the relative amount of gasoline which had
20 leaked in the soil.
21 Q. Did you obtain the sample?
22 A. Yes.
23 Q. Was there anything else you did other than
24 make the visual observation and obtain the soil sample
25 at that time?
33
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. ~ Look thc so~ ~ramp!e to a l=bozato~"~for-~
2 the analysis.
3 Q. Anything else you did at the site?
4 A. No.
5 Q. Was there anyone else from the City of
6 Bakersfield with you when you went to the gas station
7 on that occasion?
8 A. I don't recall exactly, but it is possible
9 that Steve Underwood was also present when we obtained
10 the soil sample.
11 Q. Anything else you did at the site on that
12 occasion?
13 A. No.
14 Q. Do you recall talking to anybody on that
15 occasion while you were at the gas station?
16 A. A representative from the laboratory was
17 present, I believe, to obtain the sample, itself.
18 Q. Was it your understanding that Mr. Kim was
19 the owner of the property at that time?
20 A. Yes.
21 Q. Did you have any conversations with Mr. Klm
22 at that time?
23 A. Not that I recall exactly.
24 Q. Do you recall if he was there while you were
25 there?
34
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. I don't recall.
2 Q. Have you ever met his wife, Mrs. Kim?
3 A. I may have, but I'm not sure.
4 Q. All right. Now, as I understand, you had the
5 sample tested?
6 A. Yes.
7 Q. All right. What was the name of the lab?
8 A. I don't recall.
9 Q. All right. And did you obtain the results?
10 A. Yes.
11 Q. Was that a written or oral report?
12 A. They were written results, a copy of which, I
13 believe, is in the file.
14 Q. Do you recall, in essence, what the results
15 were?
16 A. The results indicated that the soil was
17 impacted with gasoline and gasoline constituents.
18 Q. Now, did you have occasion to go back out to
19 the gas station after your visit to obtain the soil
20 sample?
21 A. I may have revisited the site.
22 Q. Do you recall what you did when you returned,
23 if you did?
24 A. If nothing, just to review the status of the
25 excavation or the status of the site.
35
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. Now, did you have any further meetings with
2 Mr. Kim or anyone else relating to the gas station
3 after you took and obtained the soil sample?
4 A. Yes.
5 Q. What was the next meeting that you attended?
6 A. I believe it was an office hearing subsequent
7 to our order to investigate the release from the
8 underground storage tank.
9 Q. Now, when you say "order to investigate the
10 release from underground storage tank," what order was
11 that?
12 A. Copy of that letter should be in the file.
13 Q. So there was a letter that was issued --
14 A. Yes.
15 Q. -- by the Bakersfield Fire Department --
16 A. Yes.
17 Q. -- to Mr. Kim?
18 A. I believe it was to Mr. Kim.
19 Q. And what, in essence, was in the letter?
20 A. The requirement to investigate the release
21 from the underground storage tank pursuant to the
22 referenced State law.
23 Q. Now, when you say that there was an office
24 hearing, what do you mean by that?
25 A. When there wasn't a timely response to the
36
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 order, a subsequent office hearing was requested to
2 find out why the request to investigate had not been
3 initiated.
4 Q. Did you get a response from Mr. Kim, or
5 anyone on his behalf, before the office hearing took
6 place following the issuance of the letter order?
7 A. I don't recall specifically.
8 Q. Did Mr. Kim attend the office hearing?
9 A. I believe he did.
10 Q. Do you recall who was present at that time?
11 A. Not exactly.
12 Q. Was Ann Choung present?
13 A. She may have been.
14 Q. What took place at that office hearing?
15 A. We described what we thought was the cause of
16 the release -- the leak in a turbine sump -- again
17 requested an investigation occur to delineate the
18 extent of that release, as well as to suggest that
19 turbine sumps be installed at that time to prevent any
20 further releases.
21 Q. And were these suggestions and statements
22 made to Mr. Kim as the owner?
23 A. Yes.
24 Q. Do you recall what response, if any, Mr. Kim
25 made to you during that meeting?
37
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. Not exactly.
2 Q. Do you recall, in essence, what was said?
3 MS. WADE: Objection. Calls for speculation.
4 BY MR. MURPHY:
5 Q. I am just asking if you can recall in essence
6 what was said. I know you don't remember.
7 MS. WADE: He said he doesn't remember.
8 MR. MURPHY: He said he doesn't remember
9 exactly. If he can remember anything, that's fine.
10 If not, that's fine, too.
11 THE WITNESS: No.
12 BY MR. MURPHY:
13 Q. Okay. Was the purpose of that office hearing
14 tO meet with Mr. Kim in person, to address the issue
15 and make sure he understood?
16 A. Yes.
17 Q. And did you feel that you had accomplished
18 that by the end of that meeting?
19 A. I wasn't sure.
20 Q. Why weren't you sure?
21 A. Because I do not recall at this time exactly
22 what his response at that meeting was.
23 Q. Was there a particular response you were
24 looking forward to obtaining at that meeting?
25 A. Yes. Pursuant to my order, I was looking for
38
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 a work plan from an environmental consulting firm on
2 how they intended to address investigating the extent
3 of the release.
4 Q. And did Mr. Kim give you such a work plan at
5 that time during that meeting?
6 A. No.
7 Q. Did you discuss with Mr. Kim the need to
8 obtain a work plan from a qualified environmental
9 firm?
10 A. Yes.
11 Q. And did you explain to him what you were
12 looking for?
13 A. Yes.
14 Q. Do you recall what response, if any, you got
15 after you explained it to Mr. Kim?
16 A. No.
17 Q. If you get an affirmative response from
18 someone at one of these meetings -- I am not talking
19 about Mr. Kim, just in general -- do you make note of
20 that somehow that the person you had the meeting with
21 indicated they would do what you're asking them to do?
22 Do you record that in any way?
23 A. No.
24 Q. Do you have a follow-up after the meeting to
25 determine if things are done or not done?
39
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. The follow-up would be if the work plan was
2 not then submitted in a timely fashion.
3 Q. Did you indicate any time frame for the work
4 plan to be submitted by or on behalf of Mr. Klm?
5 A. Time frames are specified in our orders.
6 Q. So the time frame would have been in the
7 order that was provided to Mr. Kim?
8 A. Yes.
9 Q. Now, after -- strike that.
10 Do you recall anything else occurring at this
11 office hearing?
12 A. No.
13 Q. Do you recall if any other Bakersfield Fire
14 Department personneI were present at that meeting?
15 A. I believe both Ralph Huey and Steve Underwood
16 were also present.
17 Q. Do you recall who primarily did the talking
18 for the Bakersfield Fire Department?
19 A. Ralph Huey would represent the Bakersfield
20 Fire Department. Both Steve Underwood and I would
21 speak to our respective issues.
22 Q. Now, did you have any further meetings with
23 Mr. Klm, that you recall, after this office hearing?
24 A. I believe there was at least one subsequent
25 meeting with Mr. Kim.
40
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. Was that at your office or at his place of
2 business or somewhere else?
3 A. Also at our office.
4 Q. Do you recall approximately when that
5 occurred?
6 A. No.
7 Q. I don't know if I asked you this.
$ Do you recall when the office hearing
9 occurred?
10 A. Not exactly.
11 Q. Do you have an estimate? If you don't,
12 that's fine.
13 A. No.
14 Q. All right. This subsequent meeting at your
15 office following the office hearing, do you recall the
16 purpose of that meeting?
17 A. Again, to ascertain when a work plan would be
18 forthcoming.
19 Q. Do you recall who was present other than
20 Mr. Kim and yourself at the meeting?
21 A. I believe at a subsequent meeting Mr. Kim's
22 daughter was also present.
23 Q. At this subsequent meeting following the
24 office hearing, as I understand it, your purpose was
25 to find out the status of obtaining a work plan.
41
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. Yes.
2 Q. What information, if any, did you receive in
3 that regard from Mr. Kim or his daughter or whoever
4 else was with him at that time?
5 A. I don't recall.
6 Q. Do you recall receiving a work plan?
7 A. No.
8 Q. Was there any action you took as a result of
9 that meeting?
10 A. I may have issued a subsequent request for a
11 work plan. Again, a record of which should be in the
12 file.
13 Q. To your knowledge, have you or your
14 department received a work plan relating to this gas
15 station to date?
16 A. No.
17 Q. Have you received any information from
18 Mr. Kim or on his behalf as to what he intends to do
19 with regard to the gas station?
20 A. I will say Mr. Kim's son had also come into
21 our office inquiring what was needed to be done.
22 Q. The gentleman at the end of the table? Is
23 that the gentleman at the end of the table?
24 A. Yes.
25 Q. And what was said during that discussion?
42
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. I can't recall exactly, but I do believe that
2 I photocopied from the Yellow Pages a page listing
3 environmental consulting firms in the Bakersfield area
4 and provided that to Mr. Kim's son.
5 Q. I'm going to show you what's been previously
6 marked as Exhibit 2 at another deposition and just ask
7 you to look at this, sir, if you would be so kind.
8 Is any of the handwriting on that document
9 yours, sir?
10 A. Yes.
11 Q. Okay. It says "Environmental Services
12 Contact," and it has your last name.
13 What is that document, sir, as you understand
14 it?
15 A. It is a record of a spill report that
16 describes the incident and actions taken to address
17 that incident.
18 Q. Are you familiar with the initials "RLW''~
19 A. Yes.
20 Q. What do they represent? What company do they
21 reference?'
22 A. RLW was a service station repair company.
23 Q. Do you know someone named John affiliated
24 with that company at that time? I believe we're
25 talking about the January of 1999.
43
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. Yes. I recall a John associated with RLW.
2 Q. Are they still a going concern, if you know?
3 A. No. They're no longer in business.
4 Q. Do you know John's last name?
5 A. No, I can't recall that.
6 Q. Do you recall the incident referenced in
7 Exhibit 2?
8 A. Yes.
9 Q. And what does that reference?
10 A. I believe this references what I had earlier
11 indicated as my initial inspection at the facility
12 regarding a line segment near the dispenser.
13 Q. Now, is this the same area as was involved in
14 the turbine situation or something different?
15 A. This was something different.
16 Q. So it's not the same area?
17 A. No.
18 Q. Not the same problem?
19 A. No.
20 Q. Not the same suspected cause?
21 A. No.
22 MR. McCARTNEY: The way you phrased that,
23 it's unclear.
24 MR. MURPHY: Are you accusing me of using a
25 double negative? I usually use a triple negative.
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 MR. McCARTNEY: Well, it seemed -- it
2 seemed --
3 MR. MURPHY: You're probably right.
4 BY MR. MURPHY:
5 Q. Let me turn it around, sir.
6 Was the incident referenced in Exhibit 2 the
7 same problem that you were dealing with relating to
8 your subsequent inspection and meetings with Mr. Kim?
9 A. No.
10 Q. What is the difference between the two?
11 A. This was a line leak test that indicated
12 something was wrong with the line itself and required
13 further investigation.
14 Q. Now, do you recall what occurred after that?
15 A. The line was repaired, and I inspected that
16 repair, as I had earlier indicated.
17 Q. And you approved the repair?
18 A. Subsequent to a modification which I had
19 pointed out on my inspection.
20 Q. Was that modification completed at some point
21 in time?
22 A. Yes.
23 Q. And after that modification was completed,
24 did you then give approval to use the line?
25 A. Yes. This report indicates that the facility
45
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 was under a modification permit, and that permit
2 should have been approved at the time of that
3 inspection.
4 Q. Do you recall what the modification was?
5 A. Repairing that line.
6 Q. And if that line was repaired, would the
7 modification permit change to something else?
8 A. No, it would --
9 Q. Just stay in effect?fu%o~,~ .. ~
10 A. Until the re~W~was completed.
11 Q. Okay. And then after the repair was
12 completed, what status would it have at that point?
13 A. Operational.
14 MR. MURPHY: I'm going to pass the
15 questioning for a moment while I regroup.
16
17 EXAMINATION
18 BY MR. McCARTNEY:
19 Q. My name is Tom McCartney. I represent
20 Mr. and Mrs. Kang in this case.
21 You indicated that there was an initial
22 meeting between you, Mr. Kim, and Ann Choung that had
23 been initiated by Ann Choung.
24 Do you recall that meeting?
25 A. Yes.
46
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. And during that meeting, you said it was
2 their general desire to find out if the station was
3 currently in compliance with underground storage tank
4 regulations; is that right?
5 A. Yes.
6 Q. And did you respond to that inquiry? Did you
7 tell them whether the station was in compliance at
8 that time with underground storage tank regulations?
9 A. Yes.
10 Q. Was the gas station in compliance with
11 underground storage tank regulations then?
12 A. To the best of my recollection, yes.
13 Q. yOu had also indicated that Ann Choung had
14 requested that you provide information with respect to
15 upcoming testing or upgrading procedures which would
16 be required in the future.
17 Do you recall that?
18 A. Yes.
19 Q. And did you explain to her in your
20 conversation what those upcoming testing or upgrade
21 procedures would be?
22 A. Yes, as I wrote them down.
23 Q. While you were writing them down on the
24 document which we have marked as Exhibit 7, I believe,
25 you were, at the same time, explaining each of these
47
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 items to Ann Choung?
2 A. Yes.
3 Q. Did you do each -- did you explain each of
4 these items one at a time? Silly question, but I
5 presume you did.
6 A. Yes.
7 Q. Did Ann Choung then discuss these -- did
8 Ann Choung then, after you had finished your
9 explanation of each of these items on Exhibit 7, have
10 conversation with Mr. Kim in what I would presume
11 would be Korean?
12 A. Yes. I recall them speaking in Korean.
13 Q. And in particular, did you indicate to them
14 that there would be an annual maintenance check on the
15 leak monitoring system?
16 A. Yes.
17 Q. Did you indicate to them that would be sort
18 of a routine inspection?
19 A. On an ongoing annual basis.
20 Q. Did you discuss with them the tank lining
21 inspection that was going to be required by
22 October 20017
23 A. Yes.
24 Q. And that is that something which is less
25 routine, for example, than item No. 1, the annual
48
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 maintenance check on the leak monitoring system?
2 A. Yes.
3 Q. Did you explain to them that this was a more
4 extensive inspection?
5 A. Yes.
6 Q. Did you tell them that this would be
7 something which could take some time to complete?
8 A. I did not discuss any time frames.~~t~c(~'~3'
9 Q. Did they ask you any questions about how
10 extensive this tank lining inspection would be?
11 A. Not that I recall.
12 Q. Is it possible that they did and you don't
13 recall, or is it your best recollection that they
14 didn't ask you any questions about it?
15 A. I don't recall what was asked about it.
16 Q. Okay. Do you recall attempting to -- by the
17 way, this tank lining inspection was something with
18 which you're familiar, are you not?
19 A. Yes.
20 Q. And I take it you have occasion in your
21 profession to explain what this tank lining inspection
22 consists of on a fairly regular basis?
23 A. Could you repeat the question.
24 Q. Sure.
25 This is -- the tank lining inspection is
49
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 something you've had to discuss with people other than
2 Mr. Kim and Ann Choung, I take it?' Maybe I shouldn't
3 take it.
4 A. I'm not the primary underground tank
5 inspector; so I don't have as many opportunities to
6 discuss routine operational compliance .issues.
7 Q. Did you tell them any of the details that
8 would be involved in the tank lining inspection?
9 A. Not that I recall.
10 Q. Did you tell them that the tank lining
11 inspection was something that was required every
12 10 years?
13 A. Initially. After the first 10 years from
14 initial lining, it's required every 5 years
15 thereafter.
16 Q. Did you explain that to Ann Choung and
17 Mr. Klm?
18 A. Yes. And I believe I wrote it down as such.
19 Q. Did you ask them if they had any questions
20 about anything that you said, just in general, during
21 the meeting?
22 A. No. I believe I was answering their
23 questions.
24 Q. So they did ask you questions from time to
25 time during .this meeting?
50
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. Yes.
2 Q. But as you s±t here today, you can't recall
3 what they were; is that right?
4 A. I know for a fact they asked me to write down
5 what the ongoing testing requirements were.
6 Q. Can you recall anything else that they asked
7 of you -- either to do or to explain?
8 A. No.
9 MR. McCARTNEY: I don't have anything
10 further.
11 MR. GAL?ERIN: I guess that means I'll go
12 next.
13 MR. MURPHY: Okay.
14
15 EXAMINATION
16 BY MR. GALPERIN:
17 Q. Good afternoon. Thanks for taking the time
18 to be here today and to answer our questions.
19 And by the way, if you need a break at any
20 time for water or what have you, then feel free to ask
21 for it.
22 Did you review any documents in anticipation
23 of coming here today and of your testimony today?
24 A. No.
25 Q. And did you speak with Mr. Murphy in advance
51
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 of this hearing, or have you spoken with him prior to
2 this hearing?
3 A. I met him outside this office as we arrived
4 here together.
5 Q. Okay. And what about Mr. McCartney? Had you
6 had an opportunity to speak to or meet Mr. McCartney
7 prior to today?
8 A. No.
9 Q. Okay. And have we had a chance to speak or
10 meet prior to today?
11 A. No.
12 Q. Okay. In the beginning of your testimony,
13 you talked about recalling at least two times where
14 you had visited the site of the ARCO station; is that
15 correct?
16 A. Yes.
17 Q. Okay. Do you have any recollection of how
18 many more than two times, if more than two times, you
19 have been to that site?
20 A. It was at least two times and maybe one or
21 two times more than that. I just don't recall.
22 Q. Is there anywhere a record that would
23 establish conclusively the number of times that you
24 may have visited the property?
25 A. Yes.
52
SYLVIA MENDEZ & AS$OCIA-ES (661) 631 2904
1 Q. And what would that record be, and where
2 would that record be found?
3 A. In the file.
4 Q. Is that file available to all of the public?
5 A. Yes.
6 Q. Is there a file or are there files separate
7 from that file which is available to the public?
8 A. Yes.
9 Q. And what is the difference between the file
10 that is available to the public and the file that is
11 not available to the public?
12 A. State law prohibits the disclosure of the
13 locations of hazardous materials; therefore, maps
14 related to hazardous materials disclosure are not
15 available for public review.
16 Q. Anything else that would, not be found in the
17 public file that would be found in the nonpublic file?
18 A. No.
19 Q. Now, you had mentioned that the first time
20 that you were at the property -- the first time that
21 you recall being at the property was for inspecting a
22 component modification to the underground system, a
23 section of piping that needed repair and one
24 dispenser; is that correct?
25 A. Yes.
53
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 ~ Q. Is that~ the same inspection that was referred
2 ~ as having occurred in January of 19997
3 . ieve '
4 Q. Okay. Now, I want to go back for a moment to
5 the time period that Mr. Klm and Ms. Choung came into
6 your offices before Mr. Kim purchased the property.
7 When they came, who -- did anybody state the
8 purpose of the visit?
9 A. My recollection is that Ann Choung introduced
10 Mr. Klm to me as a prospective buyer of the property.
11 Q. And what else did she say to you regarding
12 what the intention was regarding the meeting?
13 A. That there was a general intent to review the
14 file to ascertain the status of the regulatory
15 compliance and if any records indicated that there
16 were releases from the underground storage tanks.
17 Q. So the purpose of the meeting was articulated
18 to you by Ms. Choung; is that correct?
19 A. Yes.
20 Q. Was the purpose or a purpose to the meeting
21 also articulated to you by Mr. Kim?
22 A. Not directly.
23 Q. Now, Ms. Choung, how did she introduce
24 herself? In what capacity was she coming to your
25 office?
54
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. As a realtor.
2 Q. Did she explain whether she was a realtor
3 representing the seller or a realtor representing the
4 buyer?
5 A. She introduced Mr. Kim as a potential buyer
6 of the property.
7 Q. I understand that.
8 My question was: Did she identify herself as
9 being an agent or broker for either the buyer or the
10 seller, or did she say thgt she was representing both?
11 A. My recollection is that she was representing
12 Mr. Klm.
13 Q. Okay. So did s'he state to you specifically
14 that she was also representing the seller of the
15 property?
16 A. Not that I recall.
17 Q. Okay. Were you aware of the fact that she
18 was representing both the buyer and the seller in the
19 transaction?
20 A. Not that I recall.
21 Q. Now, you described that meeting as an initial
22 file review; is that correct?
23 A. Yes.
24 Q. And how many other file reviews were there
25 similar to this one?
55
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. I don't know the exact number. File reviews
2 occur on a relatively routine basis -- perhaps one or
3 two a week.
4 Q. Now, you had mentioned something a few
5 moments ago about being prohibited to disclose
6 information about hazardous substances on certain
7 properties and that, thus, that is not available in
8 the public file; is that correct?
9 A. Yes.
10 Q. Okay. Was all the information regarding
11 possible releases of hazardous substances, then, in
12 that file that was available for the review of
13 Mr. Kim?
14 A. Yes.
15 Q. It was -- how is it that it came to be there
16 for Mr. Kim when it's not available as a public file?
17 A. There is only a specific prohibition against
18 the disclosure of the locations of hazardous materials
19 pursuant to the Community Right to Know Act, and those
20 maps are kept in a separate file from the underground
21 storage tank regulatory file.
22 Q. So was there any file or any information in
23 another file that Mr. Kim would not have been privy to
24 in his review of the file at your offices?
25 A. Would you repeat the question.
56
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. Yes.
2 Was there anything in any file that Mr. Kim,
3 as a member of the public, would not have been privy
4 to in his review of the file?
5 A. Yes.
6 Q. And what specifically would he not have been
7 privy to?
8 A. The specific site map showing the locations
9 of where the hazardous materials are stored on the
10 property.
11 Q. And what kind of information would that
12 provide, had he been privy to it?
13 A. The location of the underground storage
14 tanks.
15 Q. So the file that he had for his review did
16 not have information regarding the location of
17 underground storage tanks; is that correct?
18 A. The file available for his review did have
19 information on the location of the underground storage
20 tanks, because under the underground storage tank law,
21 in particular, those maps are not prohibited from
22 public view.
23 Q. Okay. So, again, just to clarify, because I
24 am trying to understand here, what type of documents
25 or information or maps would there have been in the
57
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 nonpublic file that Mr. Kim would not have been privy
2 to when he reviewed that public file?
3 A. A site map of the location which showed where
4 the underground storage tanks were located. I think
5 this is a situation where one set of laws prohibits
6 the locations of hazardous materials from being
7 subject to public review, but the underground storage
8 tank laws do not have such a prohibition; therefore,
9 maps are in both files. One file is available for
10 public review; the maps in another file are not.
11 Q. I understand.
12 Do you recall whether either Mr. Kim or
13 Ms. Choung had copies made or made copies of any of
14 the file that they reviewed?
15 A. I don't recall. But it is common to have
16 copies made during file reviews.
17 Q. Did Mr. Kim ask for your advice in any way
18 regarding what was described as his contemplated
19 purchase of the property?
20 A. He asked for my determination on whether the
21 site was in regulatory compliance.
22 Q. To which you responded?
23 A. In the affirmative.
24 Q. And how did you determine that it was in
25 regulatory compliance?
58
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. Through the file review.
2 Q. And did you do a file review prior to the
3 meet±rig or pr±or to th±s f±ie rev±ew by Mr. K±m and
4 Ms. Choung, or was that review of the file that you
5 did just done while they were there?
6 A. I believe the file review was done while they
7 were there.
8 Q. Okay. Did you, at any time, suggest to
9 Mr. Kim that he do a Phase I in terms of testing of
10 this property?
11 A. No.
12 Q. Would a Phase I have -- well, what would a
13 Phase I have informed him of?
14 A. A Phase I would have informed him of any
15 environmental conditions which may indicate whether a
16 release had occurred on the site.
17 Q. Now, I want to turn back to Exhibit 7 for a
18 moment.
19 MR. GALPERIN: Thank you very much. I
20 appreciate that.
21 BY MR. GALPERIN:
22 Q. Now, this was prepared in connection with
23 that meeting that occurred on or about the fall of
24 2000; correct?
25 A. Yes.
59
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. Okay. Now, Item No. 1 says that "A
2 maintenance check on leak mon±tor±n~ system is
3 required by 09/18/2000 and each year thereafter."
4 Do you recall whether this meeting happened
5 before or after 09/187
6 A. My recollection is it would be prior to 09/18
7 if I was writing down things that were going to occur
8 in the immediate future.
9 Q. But you don't recall whether this meeting
10 occurred before or after 09/187
11 A. If the meeting occurred after 09/18, then the
12 site would have not been in compliance. They would
13 have been overdue for their annual maintenance check.
14 Therefore, it is my conclusion that this occurred
15 prior to September 18th of 2000.
16 Q. But you don't recall that for a fact?
17 A. I don't recall exactly when this meeting
18 occurred.
19 Q. Is it possible that this meeting occurred in
20 October?
21 A. Not on the basis of what I've written.
22 Q. And if it had occurred in October, then this
23 station would not have been in compliance; is that
24 correct?
25 MR. McCARTNEY: Assumes facts not in evidence
6O
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 that -- it's incomplete.
2 MR. ~UR?HY: Incomplete hypothetical.
3 MR. GALPERIN: It's a very complete
4 hypothetical.
5 MR. McCARTNEY: Join.
6 MR. GALPERIN: I will rephrase it.
7 BY MR. GALPERIN:
8 Q. If the meeting occurred in October and the
9 work had not have been done, then the station would,
10 in fact, not been in compliance; is that correct?
11 A. Yes.
12 Q. Okay. Now, at the very bottom, it says
13 "attested to." How did this particular language make
14 its way onto this page -- the words "attested to"?
15 A. Those were my words.
16 Q. Were you requested to attest to this?
17 A. I was requested to sign and date this
18 document.
19 Q. Okay. And as a consequence thereof, you
20 decided to write "attested to''o
21 A. Yes.
22 Q. Just wanted to check how that came about.
23 Do you recall whether it was Ann Choung or
24 Mr. Kim who specifically asked for the upcoming
25 procedures and testing that needed to be done on the
61
SYLVIA MENDEZ & ASSOCIATES .- (661) 631-2904
1 property?
2 A. It was Ms. Choung who made that request to
3 me.
4 Q. And you recall questions being asked by
5 Mr. Kim; is that correct? I believe you testified to
6 that.
7 A. Yes. Through Ms. Choung, as the -- as an
8 interpreter. I .recall discussions occurring between
9 Mr. Kim and Ms. Choung in Korean and questions being
10 posed to me by Ms. Choung.
11 Q. So your recollection of the questions that
12 Mr. Kim asked was those questions were asked by him in
13 Korean to Ms. Choung and then she translated or
14 interpreted into English to you; correct?
15 A. That's my general recollection.
16 Q. And what about the answers that you provided
17 to the questions? Did you provide them directly to
18 Mr. Kim in English, or were those then translated back
19 to Korean by Ms. Choung?
'20 A. I addressed them collectively, as I'm
21 addressing all of you here collectively. Subsequent
22 to my response, Ms. Choung would translate into Korean
23 to Mr. Kim.
24 Q. Do you know if her interpretation or
25 translation was a complete interpretation and
62
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 translation?
2 A. No.
3 Q. I could have predicted the answer to the
4 question, but I had to ask it anyway.
5 Let's turn to January of 1999 and what is
6 referred to in this Exhibit 2 as the hazmat incident.
7 Did the fire department require an
8 investigation as to how much fuel was spilled?
9 A. I don't have a recollection that any fuel was
10 spilled. This was a line leak test failure. My
11 recollection is that a soil sample was obtained, but I
12 don't recall that the soil had been impacted by this
13 particular line test failure indication.
14 Q. Was there any indication of how it had been
15 affected -- of how the soil had been affected?
16 MR. McCARTNEY: Assumes facts not in
17 evidence.
18 MR. MURPHY: Join.
19 MR. GALPERIN: Well, he just said that there
20 was an impact on the soil.
21 MR. McCARTNEY: No, he didn't.
22 MR. MURPHY: No, he didn't.
23 MR. McCARTNEY: That's exactly the opposite
24 of what he said. He said there was a line leak test
25 failure and that he does not recall that the soil had
63
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 been impacted; that a.soil sample was taken, he
2 doesn't recall any contamination.
3 MR. GALPERIN: Let's clarify.
4 BY MR. GALPERIN:
5 Q. Was there a soil sample?
6 A. I believe there was a soil sample taken at
7
8 Q. And did that soil sample show any
9 contamination?
10 A. I do not recall that that soil sample showed
11 contamination at that time.
12 Q. Okay. Where are the results of that soil
13 sample?
14 A. They should be in the file.
15 Q. In the public file?
16 A. Yes.
17 Q. Okay. And this would definitely be in that
18 public file?
19 A. They should be.
20 Q. Okay. Now, do you know if there are any
21 other soil samples that are in that file?
22 A. There should be the soil sample that was
23 taken subsequent to the tank lining inspection.
24 Q. I'd like to show you a document entitled
25 "Correction Notice" from the Bakersfield Fire
64
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Department, and then there is also attached a City of
2 Bakersfield Office of Environmental Services form. I
3 don't believe this was part of any of the previous
4 documents.
5 MR. MURPHY: How do you want to mark them?
6 Both together or separate.
7 MR. GALPERIN: Separately. Let's do one 8
8 and one 9.
9 (Whereupon, Plaintiffs' Exhibit Nos. 8 and 9
10 were marked for identification.)
11 BY MR. GALPERIN:
12 Q. Could you be so kind as to read to us what
13 needed to be done pursuant to this correction notice?
14 A. I'm sorry. Could you repeat the question.
15 Q. Sure. I'd be happy to.
16 Could you read for us what was required
17 pursuant to this inspection notice?
18 A. Item No. 1 says "Please place visible street
19 numbers at least six inches in height on building."
20 Item No. 2, "Please replumb No. 6 dispenser
21 so that shear valve is rigidly mounted flush with the
22 top of the island."
23 Item No. 3, "Please provide fully operational
24 cathodic protection system".
25 Q. Okay. Let's go one by one, although the
65
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 first of those is not that terribly important for our
2 purpose. I think we can skip that, relating to the
3 numbers being put on the building.
4 The second of those, do you have a
5 recollection of whether that was done and when that
6 was done and by whom it was done?
7 A. To the best of my recollection?
8 Q. To the best of your knowledge, sure.
9 A. This was what I had previously indicated as
10 the modification that I alluded to when that piping
11 was repaired under the modification permit, that
12 before I could sign off on my approval, this
13 modification had to occur.
14 Q. And do you recall whether the modification
15 did occur?
16 A. To the best of my recollection, yeah.
17 Q. 'And would there have had to have been a
18 permit for that modification?
19 A. Yes.
20 Q. And do you recall whether there was a permit
21 for this modification?
22 A. Yes. It's noted here, on your Exhibit No. 2.
23 Q. Okay. So there was.
24 Now, about the third of the items that are
25 listed there on that Exhibit No. 8? Do you have a
66
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 recollection of whether that corrective work was done?
2 A. Not -- I don't recall directly.
3 Q. Okay. Now, if there was no record of a soil
4 sample analysis taken in 1999 in the file, would that
5 suggest that no sample was taken?
6 MR. McCARTNEY: Calls for speculation.
7 MR. MURPHY: Join.
8 MR. GALPERIN: It's a fair question.
9 MR. McCARTNEY: It might suggest that it was
10 lost, stolen.
11 MR. GALPERIN: Well, then he can respond
12 that.
13 THE WITNESS: Could you repeat'the question.
14 BY MR. GALPERIN:
15 Q. Yes.
16 If there is no record of a soil sample
17 analysis from January of '99 on file, would that
18 suggest that no sample was taken?
19 MR. McCARTNEY: Same objection. Plus, it's
20 argumentative.
21 MR. MURPHY: Join.
22 THE WITNESS: My recollection is that a soil
23 // sample was obtained from that piping repair.
/
;
24 ~ MR. GALPERIN: Bear with me just one moment
25l here.
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 I think that I'm done; so perhaps if you have
2 some follow up questions?
3 MR. McCAR-NEY: I don't.
4 MR. MURPHY: I don't.
5 MR. GAL?ERIN: -hen you'll be set free.
6 MR. McCAR-NEY: I think we've got to go by
7 Code, don't we?
8 MR. MURPHY: Let's go off the record.
9 (Discussion held off the record from
10 2:58 to 3:02.)
11 MR. MURPHY: Propose the stipulation that the
12 court reporter be relieved of her applicable duties
13 under the Code of Civil Procedure; that she send the
14 original transcript directly to Mr. Wines at his
15 business office address with a prepaid Fed Ex
16 envelope, which will be good for the weight of the
17 transcript plus the weight of the signature,
18 hopefully; and that the witness will review the
19 transcript and indicate any changes made and sign the
20 original pursuant to the penalties of perjury and then
21 forward the original to my office in the previously
22 mentioned envelope; we will maintain custody of the
23 original and produce it at trial, and if for any
24 reason, however, the original is lost, destroyed, or
25 otherwise unavailable for any reason, that a certified
68
SYLVIA MENDEZ & ASSOCIA-ES (661) 631 2904
1 copy of the original may be signed and dated and used
2 as if the original; and we will notify counsel of any
3 changes made by the witness, assuming we get
4 everything on time, no longer than three days
5 before -- or what do you want?
6 MR. GALPERIN: How about within two business
7 days of your getting it back or within three business
8 days prior to trial, whichever is sooner.
9 MR. MURPHY: That's fine.
10 MR. McCARTNEY: So stipulated.
11 MR. GALPERIN: So stipulated.
12
13 (Whereupon, at 3:04 p.m., the deposition of
14 HOWARD HUNTER WINES, III was concluded.)
15
16
17
18
19
20
21
22
23
24
69
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 STATE OF CALIFORNIA )
) ss.
2 COUNTY OF KERN )
3
4 I, HOWARD HUNTER WINES, III, do hereby
5 certify:
6 That I have read the foregoing deposition;
7 That I have made such changes in form and/or
8 substance to the within deposition as might be
9 necessary to render the same true and correct;
10 That having made such changes thereon, I
11 hereby subscribe my name to the deposition.
12 I declare, under penalty of perjury, that the
13 foregoing is true and correct.
14 Executed this'"'/~ Yt~
day of
I5 , 2oo , at ,
16 California.
17
18
19
2O
21
HOWARD HUNTER WINES, III
24
25
7O
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 STATE OF CALIFORNIA )
) ss.
2 COUNTY OF KERN )
3
4 I, Ruthanne Esparza, a Certified Shorthand
5 Reporter in the State of California, holding
6 Certificate No. 7125, do hereby certify that
7 HOWARD HUNTER WINES, III, the witness named in the
8 foregoing deposition, was by me duly sworn; that said
9 deposition was taken Friday, June 27, 2003, at the
10 time and place set forth on the second page hereof.
11 That upon the taking of the deposition, the
12 words of the witness were written down by me in
13 stenotype and thereafter transcribed by computer under
14 my supervision; that the foregoing is a true and
15 correct transcript of the testimony given by the
16 witness.
17 I further certify that I am neither counsel
18 for, nor in any way related to any party to said
19 action, nor in any way interested in the result or
20 outcome thereof.
21 Dated this llth day of July, 2003, at
22 Bakersfield, California.
24
Ruthanne Espa 7125
25
71
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
Location II
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Inspector
Deft(s) PIf(s) ~__EXHIBiT '3979
Ruthanne Esparza, CSR # 7125
, 0ate: d.br/e,,
CITY OF BAKEI~EIELD
OFFICE OF ENVIRONMENTAL SERVICES
171~ Chester Ave., Bakersfield, C ~ 3 97
Ruthanne..,._ Esparza, CSR # 7125
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city. z~ City. zip
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF KERN
CHANG BOK KlM, an )
individual, and JUNG YE )
KlM, an individual, ) Case No.
)
Plaintiffs, ) 247753 JES
)
VS. )
)
BONG UN KANG, an )
individual; SOUK JA KANG, )
an individual; ANN M. )
CHOUNG, an individual; L. )
STROOPE, INC., dba STROO?E )
REALTORS GMAC REAL ESTATE, )
a California corporation, )
and DOES 1 to 50, )
inclusive, )
)
Defendants. )
)
DEPOSITION OF:
STEVE UNDERWOOD
FRIDAY, JUNE 27, 2003
3:26 P.M.
Reported By: Ruthanne Esparza, CSR No. 7125
SYLVIA
MENDEZ
& ASSOCIATES
Ccrtificd Shorthund Rcportcr.~
1675 Chesler Avenue. Suile 360
Bakersfield, CA 93301 ORIGINAL
(661) 631-2904 · Fax (661) 631-2969
1 Deposition of STEVE UNDERWOOD, a Witness, taken on
2 behalf of the Defendants Ann M. Choung and L. Stroope,
3 Inc., on Friday, June 27, 2003, 3:26 p.m., at the Law
4 Offices of N. Thomas McCartney, 1920 20th Street,
5 Bakersfield, California, before Ruthanne Esparza,
6 CSR No. 7125, pursuant to Notice of Taking Deposition.
7
8 APPEARANCES OF COUNSEL
9
For the Plaintiffs: Law Office of Ron S. Galperin
10 By: RON S. GALPERIN,
LORI WADE and
11 PETER NIEMIEC
Attorneys at Law
12 9460 Wilshire Boulevard
Suite 500
13 Beverly Hills, California 90212
(310) 278-6831
14
15 For the Defendants Manning & Marder
Ann M. Choung; Kass, Ellrod, Ramirez, LLP
16 L. Stroope, Inc.: By: ROBERT E. MURPHY
Attorney at Law
17 660 South Figueroa Street
23rd Floor
18 Los Angeles, California 90017
(213) 624-6900
19
20 Also Present: Plaintiff Chang Bok Kim
Sung Kim
21
22
23
24
25
2
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 I N D E X
2
3 THE WITNESS
4 STEVE UNDERWOOD
5
6 EXAMINATION BY Page
7 Mr. Murphy 4, 56
8 Mr. Galperin 45
9
10 EXHIBIT INDEX
11 (None offered.
12
13
14
~5
17
~8
~9
2O
21
22
23
24
25
3
SYLVIA MENDEZ & ASSOCIATES - 661) 631-2904
1 BAKERSFIELD, CALIFORNIA;
2 FRIDAY, JUNE 27, 2003; 3:26 P.M.;
3 LAW OFFICES OF N. THOMAS McCARTNEY
4
5 STEVE UNDERWOOD,
6 called as a witness by counsel for the Defendants
7 Ann M. Choung and L. Stroope, Inc., having been first
8 duly sworn, testified as follows:
9
10 EXAMINATION
11 BY MR. MURPHY:
12 Q. Would you please state your name.
13 A. Steve Underwood.
14 Q. By whom are you employed, Mr. Underwood?
15 A. City of Bakersfield.
16 Q. And do you work for a particular part or
17 department of the City of Bakersfield?
18 A. I work for the Bakersfield Fire Department
19 Prevention Services Division.
20 Q. Have you ever had your deposition taken
21 before?
22 A. Yes.
23 Q. Approximately how many times?
24 A. Once.
25 Q. How long ago?
4
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. Six years ago.
2 Q. Just to give abbreviated version of what a --
3 reminder and refresher course about this, the young
4 lady to your right is a court reporter. She's taking
5 down everything that is being said. And in about two
6 weeks' time, it's going to be put together in the form
7 of a booklet, which will be made available to you.
8 And we're going to ask that you review it, sign it,
9 and date it and advise us of any changes that you may
10 wish to make to your deposition testimony if you
11 believe that to be necessary. If you make a change,
12 however, that an attorney involved in the case
13 believes to be an important or material change, that
14 can be commented upon to the effect you said one thing
15 here today and later changed your testimony to state
16 something else different, which could affect your
17 credibility.
18 Do you understand?
19 A. I understand.
20 Q. All right. If there is any question any
21 attorney puts to you that you do not understand, let
22 us know. We will more than happy to repeat or
23 rephrase it.
24 A. Okay.
25 Q. But we cannot read minds; so we have to rely
5
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 upon you to tell us if you have a problem. If you go
2 ahead and answer the question, we're going to assume
3 that you fully understood it unless you tell us
4 otherwise.
5 Is that fair?
6 A. I understand.
7 Q. There may be some questions that ask you for
8 your best estimate. We may ask you, "Approximately
9 when did you do this?" "Approximately when did you do
10 that?" You may not recall the exact date. You might
11 not even remember the month, but you could, perhaps,
12 say it was the fall of 2000 or something of that
13 nature. That's an estimate based upon a factual
14 recollection that you have.
15 If you don't remember something, 'just say "I
16 don't remember." That is a perfectly acceptable
17 answer. We don't want you to guess.
18 'A. Okay.
19 Q. Do you understand the difference?
20 A. Yes, I do.
21 Q. Is there any reason why we cannot proceed
22 with your deposition at this time?
23 A. No.
24 Q. How long have you been employed by the City
25 of Bakersfield?
6
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. Since October 3rd, 1997 -- excuse me --
2 February 3rd, 1997.
3 Q. And before that where did you work?
4 A. I worked for Campbell's Soup Company.
5 Q. And what did you do there?
6 A. I was a territory manager.
7 Q. And for how long did you have that job?
8 A. Approximately two years.
9 Q. And before that what did you do?
10 A. I worked for Ralston Purina Company.
11 Q. And what did you do for that company?
12 A. A territory manager.
13 Q. For approximately how long?
14 A. About two-and-a-half years.
15 Q. I'll go back one more job.
16 What did you do before that?
17 A. Pitney Bowes.
18 Q. And what did you do for that company?
19 A. I was an associate sales manager.
20 Q. For approximately how long did you work for
21 that company?
22 A. Four years.
23 Q. How far did yqu go in school?
24 A. I have an AA degree in environmental
25 technology.
7
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. And approximately when did you obtain that?
2 A. December of 1996.
3 Q. From where?
4 A. Bakersfield College.
5 Q. Do you have any other degrees past high
6 school?
7 A. No.
8 Q. Now, when you joined the City of Bakersfield
9 Fire Department, did you go directly into prevention
10 services?
11 A. Yes, I did. At that particular time, it was
12 called Environmental Services.
13 Q. And when you first were employed by
14 Environmental Services, what was your position --
15 title?
16 A. I was an underground storage tank
17 inspector/fire inspector petroleum.
18 Q. Had you ever done that type of work before
19 taking the job with the City of Bakersfield?
20 A. No, sir.
21 Q. Where did you receive your training for that
22 type of work?
23 A. The degree which I sought dealt with
24 environmental issues dealing with both Community Right
25 to Know, underground storage tanks, pipelines --
8
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 anything to do with environmental/petroleum.
2 Q. Now, after you joined the Bakersfield Fire
3 Department, did you have any further or additional
4 training in that particular area?
5 A. Absolutely.
6 Q. What was that?
7 A. I -- starting in early 1997, I went to
8 several state u~r -- clean water program
9 seminars on underground tank inspection, sampling
10 analysis, cathodic protection, drug labs,
11 methamphetamine labs, pipeline orientation. At the
12 moment I can't recall any more, but this was over a
13 period of -- well, it's still ongoing. This has been
14 since 1997.
15 Q. Who is your immediate supervisor at the
16 present time?
17 A. Ralph Huey.
18 Q. What his title?
19 A. He's the director of Prevention Services.
20 Q. And what are your duties presently with the
21 Fire Department?
22 A. I currently manage the underground tank
23 program for the City of Bakersfield.
24 Q. When you say you manage the underground
25 storage tank program for the City of Bakersfield, what
9
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 specifically do you do?
2 A. I do on-site visits. Law requires an annual
3 inspection be performed at each UST facility in our
4 jurisdiction. I'm also maintaining the data base and
5 the requirements that are set aside. Under the Water
6 Board and the Title 23 regs., there are specific
7 certifications that need to be done each year, and
8 some every three years, with regard to different types
9 of UST systems.
10 Q. Now, is there anyone else doing that
11 particular work for the City of Bakersfield?
12 A. That is my primary duty; however, if I'm on
13 vacation or not available, a gentleman named
14 Howard Wines will sometimes fill in for me. That is
15 not his primary area of responsibility, but he does
16 fill in when I'm not available.
17 Q. Do you know what Mr. Wines' primary area of
18 responsibility is?
19 A. His primary responsibility is to do site
20 assessments and off-site consequences where it deals
21 with hazardous waste or hazardous contamination.
22 Q. Is Mr. Huey Mr. Wines' immediate supervisor,
23 as well, sir?
24 A. Yes, he is.
25 Q. Now, you indicated reference to a data base.
10
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 What are you referring to?
2 A. Each one of our sites has both a working file
3 and a computer data base. We're constantly entering
4 in data both for the file, itself, which is an
5 evolving and growing file as different things come in.
6 Specifically, each year they're required to have an
7 annual maintenance on their fuel monitoring
8 certification. We're checking to make sure that's
9 done. And then that has to be updated in the file and
10 then updated in the computer. We generally want to
11 make sure that everything in the computer matches what
12 is in the file. It's easier to use a computer than go
13 do a file search every time.
14 Q. When you talk about the working file, is this
15 a physical file that is stored somewhere in your
16 office or office facility?
17 A. Yes, sir, that's correct.
18 Q. Is that working file open to the public?
19 A. Absolutely. All our underground storage tank
20 records are available to public access.
21 Q. What kind of materials would go -- or
22 documents would go into a typical file that you
23 maintain?
24 A. The initial permit to construct or modify,
25 the job card showing what work was done, and the
11
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 final. Anything associated with periodic tank
2 tightness testing, anything to do with fuel monitoring
3 certification. If the system is a line system, every
4 three years they have to have a cathodic protection
5 certification. All of these over the years makes the
6 file, of course, grow bigger and bigger. But we tend
7 to have a working case history since the inception of
8 that facility.
9 Q. When you perform the inspections that you've
10 referenced, do you keep some written record of that?
11 A. Yes. Every inspection has an inspection
12 form, both for the business plan portion and the
13 underground tank portion. When that inspection is
14 completed, the representative of the facility will
15 sign that, and they will get a copy of that, and then
16 the hard copy goes in the file.
17 Q. When you say the representative of the
18 facility, you're talking about the facility being
19 inspected?
20 A. Yes, sir.
21 Q. Now, would gasoline storage tanks for gas
22 stations fall within the purview of the inspections
23 that you perform?
24 A. Absolutely.
25 Q. And to your knowledge or recollection, have
12
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 you ever inspected the ARCO station on 34th Street?
2 A. Yes, sir.
3 Q. Now, as I recall, you said you started in
4 1997 in February.
5 A. That is correct.
6 Q. Do you have an estimate of how many times
7 you've inspected that particular gas station from then
8 to now?
9 A. I believe approximately four times, maybe
10 five.
11 MR. NIEMIEC: Mr. Underwood, could I ask you
12 to speak up a little bit when the fan comes on?
13 THE WITNESS: Absolutely.
14 BY MR. MURPHY:
15 Q. Would all of these inspections be of the same
16 type and nature, or would they differ?
17 A. They would differ.
18 Q. Do you recall the type or nature of the first
19 inspection you performed?
20 A. First inspection, I believe, was an annual
21 inspection based -- just to basically do an -- it's an
22 annual inspection to make sure that all components are
23 working and up-to-date on their certifications.
24 Q. And did you perform that inspection?
25 A. Yes, I did.
13
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. Do you recall when?
2 A. I know it was in '97. Without having the
3 record here, I couldn't say specifically. I know it
4 was done within that calendar year.
5 Q. Do you recall what the results of that
6 inspection was?
7 A. I believe there was some minor violations. I
8 believe it had to do with paperwork being in order --
9 proof of insurance, having a written response and an
10 authorized release plan. To the best of my
11 recollection, I don't believe it was a component
12 problem; simply, a paper problem.
13 Q. Do you know whether that paper problem was
14 resolved?
15 A. Yes, I believe it was.
16 Q. Now, do you recall when your next -- strike
17 that.
18 Do you recall the nature of your second or
19 next inspection?
20 A. I believe that was in 1999. And the gap --
21 if I may add to that, the law changed in late December
22 or early January of 1999 from the State Water Board.
23 Our policy was to do, at least every three years,
24 inspections on each facility. However, in 1999 -- I
25 believe it was 1999 -- the law changed, requiring
14
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 annual inspections at each underground storage tank
2 facility.
3 Q. So it was reduced from every three years to
4 every one year?
5 A. That is correct.
6 Q. And, again, what was the nature of the
7 inspection you performed in 19997
8 A. The one in the early part of the year, I
9 believe, was based just on an annual inspection at
10 that particular time.
11 Q. The same or similar nature as the one in
12 19977
13 A. That is correct.
14 Q. Do you recall the results of the annual
15 inspection that you performed in the early part of
16 19997
17 A. No, I do not.
18 Q. Do you recall performing a second inspection
19 for any reason or purpose in 19997
20 A. Yes. In the latter part of 1998, in order
21 for them to meet the '98 upgrade requirement, they
22 were required to have cathodic protection on their
23 tanks. Their tanks were lined in 1991, and why at
24 that time they weren't cathodically protected is a
25 mystery, but I believe the tanks in the first part of
15
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 1999 had to be cathodically protected to meet the '98
2 upgrade code. I don't believe that was done by the
3 deadline. I believe, to the best of my recollection,
4 that was done in early 1999. And my role and capacity
5 there was to inspect the installation of the cathodic
6 protection system.
7 Q. And did you do that?
8 A. Yes, I did.
9 Q. And was the cathodic system installed?
10 A. Yes, it was.
11 Q. And did you approve the installation?
12 A. Yes, I did.
13 Q. Was there anything else you would have done
14 at that time period other than what you've told us?
15 A. No, sir.
16 Q. Now, do you recall what the next inspection
17 was of that premises?
18 A. I believe it was sometime in 2000. Without
19 the file here, I could not tell you the date. I don't
20 recall.
21 Q. Do you recall the nature of that inspection?
22 A. It was a routine or annual inspection.
23 Q. Do you recall the results of that inspection?
24 A. No, I don't.
25 Q. Do you recall the next inspection that you
16
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 performed, if you did?
2 A. I believe -- to the best of my recollection,
3 I believe it was one done in 2001.
4 Q. And what was the nature of that inspection?
5 A. That was an annual inspection.
6 Q. Do you recall the results of that inspection?
7 A. I believe there was some problems on that
8 inspection. I believe that the station had been sold,
9 and although I don't believe there was a component
10 problem, but there was no transfer of ownership, nor
11 was there any documentation as far as -- again, we
12 have what we call a "transfer of ownership." We have
13 the Forms A and B that gives owner/operator
14 information, business plan information, and then a
15 response and an authorized release plan.
16 Q. So this was a paperwork problem?
17 A. Yes, sir.
18 Q. Do you recall if that paperwork problem was
19 resolved?
20 A. To the best of my recollection, I believe
21 that Mr. Kim came in, and I helped him get the
22 paperwork filled out; and, yes, I believe it was
23 resolved.
24 Q. Was it your understanding Mr. Kim was the
25 owner of the gas station at that time?
17
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. That's what, I believe, the paperwork stated,
2 yes, sir.
3 Q. Do you recall having any difficulty speaking
4 or talking to Mr. Kim?
5 A. It was a real serious problem.
6 Q. In what respect?
7 A. I could not understand what he was saying.
8 Q. Do you believe you got across at some
9 point --
10 A. I believe --
11 Q. -- what you wanted to get across?
12 A. I believe he had his daughter. Again, to the
13 best of my recollection, somebody was there. I'm
14 thinking it's his daughter. I'm not 100 percent sure
15 on that. But there was someone there that was
16 translating, and I believe I got my point across.
17 Q. And what was your point at the time?
18 A. Well, I needed to get the information to fill
19 out on the documentation, for example, his mailing
20 address, emergency contact information, if he
21 understood what to do in an emergency -- those types
22 of things.
23 Q. All right. Do you recall anything else about
24 that particular meeting?
25 A. Not at this particular meeting, no.
18
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. As I understand it, that was a meeting
2 following the annual inspection?
3 A. Yes. Very shortly after that.
4 Q. And that -- strike that.
5 The purpose of the meeting was to explain
6 what needed to be done?
7 A. Not only to explain but make sure I provided
8 him and we made the necessary change in paperwork to
9 keep his permit valid.
10 Q. Again, as far as you recall, that was
11 accomplished?
12 A. Yes, sir.
13 Q. Do you recall any other inspections or
14 meetings in 20017
15 A. Yes. Shortly thereafter, I had been sending
16 him reminders. Under Title 23, Section 2663(g), I
17 believe, requires that a tank that has been lined has
18 to be inspected within 10 years and every 5 years
19 thereafter. In fact, I believe these notifications
20 started in January of 2001 advising Mr. Kim that --
21 well, I'll -- let me back up.
22 They were first, for the first six or seven
23 months, going to the only owner we had on record.
24 They were going to the facility address, but they were
25 to Mr. Kang because, again, he had failed to come in
19
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 at the proper time to change the documentation.
2 Once he came in and did that and we were
3 advised of the new owner, then those reminders started
4 going to Mr. Klm.
5 Q. So the address was the same, but the name
6 changed?
7 A. That is correct.
8 Q. When you say he failed to come in initially,
9 you're referring to Mr. Klm?
10 A. Mr. Klm. Health and Safety Code requires
11 that within 30 days of an operational change in
12 ownership or name, they're required to come into our
13 office and fill out change of ownership, provide proof
14 of insurance, and fill out the necessary State
15 documents.
16 Q. Now, as I understand it, you said for the
17 initial six months following January 2001 -- was that
18 the time period you were talking about?
19 A. Yes, sir.
20 Q. -- that the notices went to the gas station
21 but had the Kangs' name on it?
22 A. That is correct.
23 Q. And then after that, the name was changed to
24 Klm.
25 A. Yes.
20
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. Now, you started to talk about the fact that
2 lined tanks had to be inspected initially after the
3 first 10 years?
4 A. Yes. That is the Code.
5 Q. And every 5 years thereafter?
6 A. That is correct.
7 Q. And was this facility coming up on the
8 10-year period?
9 A. October 13, 2001, I believe, was their
10 10-year anniversary, to the best of my recollection.
11 Q. Now, what do you do as part of the lined tank
12 inspection? What does that encompass?
13 A. That encompasses opening -- basically opening
14 the tanks, digging out to the actual top Of the tank,
15 and exposing a two-by-two man way that are cut in each
16 end of the tank.
17 Q. Two-feet-by-two-feet, you're saying?
18 A. Yes, sir.
19 Q. And what is the purpose of those cuts?
20 A. The purpose of those cuts -- that was done in
21 initially when the tanks were lined. They are access
22 points where they can remove the cover -- it's bolted
23 in -- so they can gain access and inspect the interior
24 of the tank.
25 Q. Now, are these inspections of the lined tanks
21
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 to be performed by the City representatives or an
2 outside consulting firm?
3 A. Certainly not by the City. We're there in a
4 supervisory role. That is done by a contractor who is
5 licensed to do that. In this particular instance,
6 that was Sessions Tank Lining.
7 Q. S-e-s-s-i-o-n-s?
8 A. Yes, sir. Incidentally, he is the one that
9 performed the original lining to begin with.
10 Q. He installed.the lining approximately
11 10 years before?
12 A. That's what the records reflect, yes, sir.
13 Q. It's your understanding that Mr. Sessions'
14 company performed the subsequent 10-year anniversary
15 inspection?
16 A. I witnessed them being there and signed off
17 on the inspection report.
18 Q. So you witnessed all or part of the
19 inspections?
20 A. I would not say "all." I did not actually go
21 down into the tanks. That requires basically an SCBA
22 with an attendant because it's a confined space entry.
23 Q. Now, is there a particular person at Sessions
24 Tank Lining that was in charge of this?
25 A. Ross Sessions.
22
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. R-o-s-s?
2 A. Yes, sir.
3 Q. Is he the owner?
4 A. Yes, he is.
5 Q. And where is this company located, if you
6 know?
7 A. It is in Bakersfield. Couldn't tell you the
8 address.
9 Q. Now, were the man way cuts made?
10 A. The man way cuts were made in the very
11 beginning when they dug it down and exposed that.
12 Then the bolts were taken off, and then access was
13 gained.
14 Q. And as far as you understand, was the
15 interior of the tanks inspected at that time?
16 A. Yes, sir.
17 Q. And as part of that inspection service, does
18 the contractor prepare some type of report for you?
19 A. He basically opens up the tank, does what
20 they refer to as "mucking out" the tanks. Just
21 through the nature of fuel, you pick up sand,
22 sediment, dirt -- anything really that you could think
23 of will accumulate after a period of time in the
24 bottom of that tank. What they basically do is open
25 it up, expose it, clean the tank, and make it ready
23
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 for a special coatings expert that checks both the
2 structural integrity and the thickness of the lining,
3 making sure that it is -- it is as thick as the law
4 requires and that there is no sloughing off of lining
5 material.
6 Q. Do you know whether or not a special coatings
7 person inspected the tanks at this property?
8 A. Yes, there was.
9 Q. Do you know who that was?
10 A. I believe -- again, without looking at the
11 file, I believe it was a gentleman by the last name of
12 Penney. I'm not certain of that. I think that is --
13 with6ut being 100 percent sure. I'd have to look at
14 the file.
15 Q. Were you advised of the results of the tank
16 lining inspection and the inspection by the special
17 coatings person?
18 A. Yes, I was.
19 Q. What were you informed?
20 A. That the tanks were in extremely good shape.
21 Q. What do you mean by "extremely good shape"?
22 A. Meaning the lining thickness, that there were
23 no rips and tears in the structural integrity of the
24 tank, that there was no sloughing of the lining
25 material.
24
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. And, to your knowledge, did you receive any
2 written reports to that effect?
3 A. Yes, sir.
4 Q. Would they be in your file materials?
5 A. I believe so.
6 Q. Now, after you receive -- would it be two
7 reports then?
8 A. They can be -- sometimes they're lumped into
9 one. To the best of my recollection, I believe this
10 gentleman did both the structural integrity and the
11 lining certification.
12 Q. Now, do you prepare your own report based
13 upon the reports that you receive?
14 A. No, I do not. I simply enter in the
15 inspections into the computer data base at a
16 particular time and date and what was done.
17 Q. Do you need to sign off on anything to
18 certify that this took place?
19 A. On this particular inspection, no. The
20 reports sufficed for that.
21 Q. Now, can you tell me, were you there one day?
22 More than one day, if you remember?
23 A. I believe I was there several days. When I
24 first arrived there and they had exposed the tanks,
25 that's when I discovered that there was an immediate
25
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 problem. There was such a strong gas odor near the
2 turbine area that it was literally almost
3 overwhelming.
4 Q. Were you there when the asphalt was removed?
5 A. I was not. I was only there once it had been
'6 excavated to the top of the tanks.
7 Q. Was it at that point in time you smelled the
8 odor?
9 A. Yes, sir. When I arrived on scene, to the
10 best of my recollection, I recall walking up and
11 smelling a very, very strong odor emanating from the
12 tanks --
13 Q. And could you --
14 A. Excuse me. -- subsurface of the tanks.
15 Q. What do you mean by "subsurface"~
16 A. Well, I mean all the surrounding dirt. If
17 you can imagine, these were probably trenches dug
18 probably four-feet wide by the length of the tanks,
19 and the sides of the dirt had a strong odor emanating
20 from them.
21 Q.. The sides closest to the tanks, is that what
22 you're talking about, or in the trench or on top?
23 A. In the trench.
24 Q. Did you actually get into the trench,
25 yourself, walk around?
26
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. No, I did not.
2 Q. Were you standing on the surface?
3 A. Yes, sir.
4 Q. Did you examine the turbines?
5 A. At that time I noticed that the O-ring
6 packing on two of them showed some signs that there
7 was something leaking from them.
8 Q. And what signs did you observe?
9 A. Just a film. Looked like it had been
10 rusting. Obviously, there was some moisture, and you
11 could, again, smell the gas and see the discoloration
12 on the top of it.
13 Q. What color were the O-rings?
14 A. The O-rings? Generally, I didn't see the
15' O-rings. The packing on the O-rings.
16 Q. You are talking about the packing on top of
17 it?
18 A. Yes, sir.
19 Q. Okay. I'm sorry. What color was that?
20 A. I believe they were old redjackets. I
21 believe they were a red color, to the best of my
22 recollection.
23 Q. And did you actually see moisture or what
24 appeared to be liquid of some nature?
25 A. I did.
27
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. And can you describe that for us?
2 A. It just looked like raw liquid on the top of
3 the turbine head. I only observed that on two of
4 them, not the third.
5 Q. And excuse me. When you say "raw liquid,"
6 what do you mean by "raw liquid"?
7 A. I mean free product.
8 Q. Did it appear to you to be gasoline?
9 A. Yes.
10 Q. And the odor you smelled was gasoline?
11 A. It appeared to be gasoline.
12 Q. And did you discuss that with anyone after
13 you made that observation?
14 A. I believe I made a comment to Ross if this
15 was a condition that they had noticed during the
16 excavation, and they indicated that they did. I
17 believe, also, there was a stockpile of the dirt that
18 they removed, and I went up to that and also smelled
19 the heavy odor coming from that concentration.
20 Q. Did you talk to anyone else at the scene
21 about your observation at that point in time?
22 A. I don't recall.
23 Q. After you made these observations, what did
24 you do with regard to this site, if anything?
25 A. I went back to the office and reported these
28
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 findings to our supervisor, and at that point it was
2 decided that Mr. Wines would contract with a lab to go
3 out and take some samples.
4 Q. Soil samples?
5 A. Yes, sir.
6 Q. Were you ever informed of the results of the
7 soil sample testing?
8 A. To the best of my recollection, it was -- the
9 samples, they were quite high in concentration. I
10 don't recall seeing the report.
11 Q. Do you recall which lab performed those
12 tests?
13 A. No, I don't.
14 Q. Would the test results be in the file?
15 A. Yes, they would.
16 Q. Now, after you went back, you talked to your
17 supervisor, Mr. Huey, and you understood that
18 Mr. Wines was going to go out and get the soil samples
19 with a lab to do the testing?
20 A. Yes, sir.
21 Q. Did you have any further involvement at this
22 time with that site?
23 A. Yes, I did. I went back to observe the final
24 mucking out of the tanks. That was the cleaning of
25 the tanks. And then I was there when the special
29
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 coating inspector was finishing up his testing of each
2 of the tanks.
3 Q. So you completed your work as part of the
4 tank lining test?
5 A. That is correct, sir.
6 Q. Now, other than completing your work as part
7 of the tank lining test inspection, did you do
8 anything else at this time?
9 A. No, sir, not at that time.
10 Q. When was the next time that you had occasion
11 to go to the gas station?
12 A. I believe a couple of weeks after that.
13 Again, this is just by recollection. We were
14 concerned that this hole was still open and subject to
15 people walking in that area. At that time, because of
16 the problems in the turbine area, no work was being
17 done until they could resolve what the next step would
18 be. Mr. Sessions had talked to Mr. Kim about putting
19 some turbine sumps glassed onto the tanks, which would
20 secondarily contain any more leakage and keep any more
21 environmental damage from happening.
22 To the best of my knowledge, this dialogue
23 went on for several weeks. And I believe I went there
24 in late October, again, to the best of my
25 recollection, and informed Mr. Klm and Mr. Sessions
30
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 until this got resolved that they would have to put
2 some sort of fencing around this to make sure -- to
3 protect anybody walking by or driving into it. It was
4 a concern that someone might get hurt.
5 Q. Was the fencing put up at some point in time?
6 A. Yes, it was.
7 Q. Getting back to your discussion with
8 Mr. Sessions, you indicated that either he or Mr. Kim
9 or both informed you that they had been talking about
10 doing something?
11 A. To the best of my recollection, they were
12 talking about what they could do to mitigate this in
13 the short term and get the station up and in
14 operation.
15 Q. And what did they tell you they were
16 discussing in terms of mitigating the problem?
17 A. The placement of turbine sumps on the tanks
18 surrounding the turbines to secondarily contain any
19 leakage that might happen from the turbines.
20 Incidentally, that is required for all new systems.
21 Q. Was it your understanding that a turbine sump
22 containment had to be installed by a certain time with
23 regard to this property?
24 A. I informed Mr. Kim and Mr. Kang via letter
25 that -- just as reminder notices that I send out to
31
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 everybody -- that dispenser pans were required by
2 December 31st, 2003.
3 Q. And what are dispenser pans?
4 A. Dispenser pans are catch basins underneath
5 the dispenser that catch any liquid leaking from the
6 associated piping. Or the old-style of dispensers
7 have filters that have to be periodically changed; and
8 when they change those, they leak. And rather than
9 having that going into the environment, they have a
10 catch basin underneath them. And that's a State
11 mandated requirement that sunsets in December of this
12 year.
13 Q. Now, if I understand you correctly, you also
14 said that you had a discussion with someone about the
15 turbine sumps?
16 A. Yes. After -- I believe, to the best of my
17 knowledge, it was probably five or six weeks,
18 Mr. Sessions called me and said, "I'm not getting
19 anywhere. I haven't been paid. I'm going to take my
20 sign down; but from the liability standpoint, I'm
21 going to put the dirt back in the hole so I can take
22 my fence. I've offered Mr. Kim a good price to put
23 these turbines on. He's not willing to do that."
24 So at this point in time, with no action on
25 Mr. Kim's part, I believe we had an office hearing
32
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 sometime in, I believe, December -- maybe the middle
2 part, I'm not sure exactly when in December -- to
3 discuss what Mr. Kim needed to do to get the station
4 opened and then part of ~his cleanup efforts.
5 Q. Did Mr. Sessions, at any time, indicate to
6 you the amount of the quote or estimate that had been
7 given to Mr. Kim that he had referenced as a good
8 price?
9 A. He mentioned something about $2,500 to put
10 the turbine sumps on. I do recall that.
11 Q. Was it your understanding that, .for that
12 price, turbine sumps could be installed and this would
13 get the station back up and running?
14 A. Yes.
15 Q. And did Mr. Sessions tell you the nature of
16 the discussions he had had with Mr. Kim about getting
17 this work done?
18 A. Only that he had made several efforts to
19 discuss it with him, and they had, to the best of my
20 recollection, something about an impasse; and, of
21 course, he decided to move on. Meaning they weren't
22 getting anywhere, and he had other jobs and other
23 projects.
24 Q. And when you say "he decided to move on," you
25 are talking about Mr. Sessions?
33
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. Yes, sir.
2 Q. And --
3 MR. GALPERIN: I just want to object. Calls
4 for some speculation about what was going on inside
5 the mind of Mr. Sessions. I think, certainly, .that
6 the deponent can testify to what was said to him.
7 MR. MURPHY: That's what I was just trying to
8 get at, actually. It wasn't clear. I wasn't clear
9 because he said "he." There are two "hes" involved.
10 We have two males involved in the conversation.
11 THE WITNESS: Okay.
12 BY MR. MURPHY:
13 Q. And we also don't want you to speculate as to
14 what you think someone was thinking, just what they
15 tell you.
16 A. Mr. Sessions --
17 Q. What did Mr. Sessions tell you about that?
18 A. He had reached an impasse. He thought he had
19 given him the best price he could, and he was going to
20 put the dirt in the hole. And that's the last I had
21 any communication with Mr. Sessions regarding this
22 project.
23 Q. Did you have any discussions with Mr. Kim
24 about putting in the turbine sumps?
25 A. At our office hearing in December, he was
34
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 informed that that is what he needed to do to get back
2 up and running. And then we also issued a letter
3 discussing what was discussed at that office hearing
4 and gave him, I believe, an action date to get it
5 resolved.
6 Q. Was it resolved by the action date?
7 A. No, sir.
8 Q. Has any action been taken, to your knowledge,
9 in response to the letter you sent or the office
10 hearing?
11 A. No, sir.
12 Q. And how do know that?
13 A. Nothing's been done; nothing's been
14 permitted. There's -- I believe in the earlier part
15 of November, I'm guessing --
16 Q. We don't want you to guess. Just your best
17 estimate, if you have one.
18 A. My best recollection is sometime in the
19 latter part of last year, a gentleman called me,
20 Brandon, who represented himself as Mr. Kim's son,
21 asked what he needed to do to get the station viable.
22 I referred him to the letter. In fact, I believe I
23 made a copy and faxed it to him. And that has been
24 the only communication that we have had with Mr. Kim
25 in regard to this.
35
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. Did you ever meet Mr. Kim's son in person?
2 A. Not till I walked in just a few minutes ago.
3 Q. The young gentleman that was here?
4 A. Yes, sir. I've talked to him on the phone a
5 couple of times. That is my first meeting.
6 Q. How did you know that was who he was here?
7 A. I took a pretty good guess. Looked like
8 Mr. Kim. I presumed, and I was right.
9 Q. All right. You saw Mr. Kim when you walked
10 in here today?
11 A. Yes, sir.
12 Q. And they have been walking in and out,
13 carrying out boxes during the depo?
14 A. I haven't paid any attention.
15 Q. Okay. That means you're listening to me.
16 A. Every word.
17 Q. Okay. That's rare, by the way.
18 Okay. Did Brandon indicate what they were
19 going to do or what was being considered when he
20 talked to you?
21 A. I recall him telling me that he was looking
22 into some companies to do some Phase II site
23 assessments. .He was not specific on any one. He
24 asked me to fax him a list of some local environmental
25 assessment companies. I did that for him.
36
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. So you faxed over the information?
2 A. Uh-huh. Yes, sir.
3 Q. Now, just getting back to the office hearing,
4 who was present at that hearing?
5 A. To the best of my recollection, I believe
6 Ms. Choung --
7 Q. That would be Ann Choung?
8 A. -- Ann Choung, Mr. Kang, Mr. Kim, myself,
9 Mr. Wines, and the director of our program, Mr. Huey.
10 Q. And what was your understanding of the
11 purpose of that meeting?
12 A. The purpose of that meeting was to find out
13 what Mr. Kim's intentions were to do on getting the
14 tank system operational, one, and what he was going to
15 do to mitigate the contamination problem.
16 Q. Did Mr. Kim provide any information to you
17 during that meeting?
18 A. No, sir, none that I recall.
19 Q. Did he say anything during the meeting?
20 A. I believe through Ann there was some talking
21 going on back and forth as we were explaining to
22 Mr. Kim what we found, what he needed to do to get the
23 tanks operational, and what he needed to do as far as
24. assessment company. To the best of my memory, that
25 was conveyed through Ms. Choung to him. And he
37
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 appeared to be nodding like he understood.
2 Q. Did you get the impression -- strike that.
3 What impression did you get to whether this
4 was being interpreted or not?
5 A. I thought he had an understanding based on
6 what Ann -- my understanding was that he was
7 understanding through the interpreter what we were
8 asking and what we wanted.
9 Q. That was your impression?
10 A. Yes, it was.
11 MR. GALPERIN: Calls for speculation, but I
12 just want to make that official objection.
13 MR. MURPHY: So noted.
14 MR. GALPERIN: Thank you.
15 BY MR. MURPHY:
16 Q. Did Mr. Kang say anything during the meeting
17 that you recall?
18 A. I recall some dialogue between him and his
19 wife and whispering; but, no, nothing of any
20 significance, no.
21 Q. Do you recall anything that Ann Choung said
22 other than interpreting back and forth?
23 A. I don't recall.
24 Q. Do you recall what Mr. Huey said during the
25 meeting?
38
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. I think Mr. Huey, again, just reverbalized
2 that we would try to work with him to help him, we
3 will provide him information on contractors. Again,
4 we reiterated that what he needed to do to get
5 op.erational was mainly put the turbine sumps on, and
6 then he needed to contact an assessment company and
7 start remediation.
8 Q. Now, if I understand this correctly, what was
9 told to Mr. Klm -- and when I say that, I mean just
10 someone who was going to interpret for him -- by
11 Mr. Huey was that the City would try to work with him?
12 A. Uh-huh.
13 Q. "Yes"O
14 A. Yes.
15 Q. The City would try to help him, if possible?
16 A. Yes.
17 Q. That information was given to Mr.. Kim as to
18 what he needed to do to get the station up and
19 running?
20 A. Yes.
21 Q. And that, you said, primarily related to
22 installation of the turbine sumps?
23 A. Yes.
24 Q. Do you recall if the price quoted by
25 Mr. Sessions.was used at all during that. meeting, the
39
SYLVIA MENDEZ & ASSOCIATES - {661) 631-2904
1 $2,500?
2 A. I don't recall.
3 Q. And I'm sorry. You said that a plan was --
4 or assessment --
5 A. Assessment work plan.
6 Q. -- was necessary to show what remediation was
7 going to be done?
8 A. Yes.
9 Q. Are you familiar with any State fund that has
10 money set aside for gas stations that have problems
11 with contamination of the soil?
12 A. Very familiar.
13 Q. What fund is that? Do you know the name of
14 that?
15 A. It's the State Cleanup Fund.
16 Q. And what is your understanding of the purpose
17 of the State Cleanup Fund?
18 A. The State Cleanup Fund is designed to -- so
19 instead of a catastrophic loss for an underground tank
20 owner, that if they belong to the Cleanup Fund and are
21 paying into the Cleanup Fund, that they would have
22 a -- basically they would have to pay a deductible,
23 and then the State would pay for the remainder of the
24 cleanup to a certain amount.
25 Q. Is that certain amount $1 million?
40
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. It is $1.5 million.
2 Q. So that's the upper limit --
3 A. Yes, sir.
4 Q. -- as you understand it?
5 A. Uh-huh.
6 Q. The deductible is how much, as you
7 understand?
8 A. It's $5,000. If I may interject, somewhere
9 between '98, '99 -- I don't recall exactly -- the
10 Cleanup Fund went from a million to a million five,
11 and the deductible dropped from 10,000 to 5,000.
12 Q. Effective as of?
13 A. I believe sometime in '99. I am guessing. I
14 don't have the Code reg. book here.
15 Q. I don't want you to guess, just your best
16 estimate.
17 A. Best estimate then.
18 Q. Was it your understanding that as of the time
19 of this meeting, those changes had gone into effect?
20 A. I believe so.
21 Q. Do you recall whether or not the possibility
22 that Mr. Klm could apply for funds through the State
23 Cleanup Fund -- d0 you recall if that was mentioned at
24 all during the hearing?
25 A. Not only was it mentioned, but I was asked to
41
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 do the research to see if he at all would qualify.
2 Q. Who asked you to do the research?
3 A. Mr. Huey.
4 Q. Did you do the research?
5 A. To the extent that I called and found out
6 that Mr. Kim had applied for and obtained a BOE number
7 for the Cleanup Fund.
8 Q. I just want to make sure I understand. He
9 had applied for and obtained a BOE number?
10 A. That is correct.
11 Q. And what effect would that have?
12 A. It would make him eligible as long as the
13 tank was temporarily closed, which we granted him at
14 the end of that meeting and in December of 2001. When
15 I made the statement the City was trying to help
16 him -- if the tank was illegally abandoned, he would
17 not qualify under the Cleanup Fund. However, if the
18 tank was temporarily closed and he made application,
19 he would be z-
20 MR. GALPERIN: Objection. Calls for a legal
21 conclusion here.
22 MR. MURPHY: I am just asking what he said.
23 BY MR. MURPHY:
24 Q. Is that what you said?
25 A. Yes.
42
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. So you, as I understand it, informed Mr. Kim
2 at the meeting that part of what the City was willing
3 to do to assist him or to help him was to certify or
4 do whatever he needed to do to make the storage tank
5 temporarily closed?
6 A. Correct.
7 Q. So he would have that threshold --
8 A. Correct.
9 Q. -- crossed and qualify on that basis?
10 A. Correct.
11 Q. Did the station need to be up and running
12 with the pumps in operation to qualify, as to your
13 understanding?
14 A. No. No. Temporary closure means it's a
15 temporary closure -- doesn't have to be running.
16 MR. GALPERIN: I think, again --
17 MR. MURPHY: Let's go off the record.
18 MR. GALPERIN: -- calls for a legal
19 conclusion.
20 (Discussion held off the record from
21 4:19 to 4:21.)
22 BY MR. MURPHY:
23 Q. I just, again, sir, want to stick with what
24 was said at the meeting. If I asked a question other
25 than that, I apologize.
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Getting back to what was said to Mr. Kim, as
2 I understand it, again, that the City would work with
3 him, that it would grant him status indicating that
4 the storage tanks were temporarily closed so that he
5 could cross that threshold to apply for the monies
6 available through the State Cleanup Fund; correct?
7 A. And to give him an opportunity to find a
8 contractor, yes.
9 Q. When you say "give him an opportunity to find
10 a contractor," what do you mean, give him time?
11 A. Yes. He had asked, at that point in time,
12 who is available other than Mr. Sessions. He made a
13 comment that he was thinking about trying to upgrade
14 all of the station. So we gave him a list of several
15 contractors that could do that type of work, and that
16 was part of his temporary closure. It would give him
17 the necessary time to find someone to do the work.
18 Q. Did you form any impression -- strike that.
19 Was Mr. Klm talking to Ann Choung during this
20 information that you were giving him?
21 A. To the best of my recollection, yes.
22 Q. Do you recall any questions coming your
23 direction via Ms. Choung after apparently speaking
24 with Mr. Klm?
25 A. No recollection, no.
44
SYLVIA MENDEZ & ASSOCIATES - (661) 63t-2904
1 Q. Other than the granting of temporary closure
2 status for the storage tanks and giving Mr. Kim some
3 time to find a contractor to do the work, what else,
4 if anything, was discussed or information provided to
5 Mr. Kim at that meeting?
6 A. I don't recall anything else.
7 Q. Do you recall whether there was mention made
8 of the deductible amount of $5,000 at that meeting?
9 A. I don't recall.
10 MR. MURPHY: That's all I have for the time
11 being. I'll pass the questioning.
12
13 EXAMINATION
14 BY MR. GAL?ERIN:
15 Q. Okay. First of all, I want to thank you
16 again for coming and for giving of your time to answer
17 these questions.
18 A. Beats the heat. Best place to be.
19 Q. Well, I'm glad that there is an enjoyable
20 aspect to this then. Does that mean you want me to
21 keep you here for hours?
22 A. No. I'm already on overtime.
23 Q. You don't have to answer that question.
24 Strike that.
25 A. I'm on overtime.
45
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Q. Let's talk for a moment about this hearing
2 that was just discussed within the last couple of
3 moments at which Mr. Kim was present and Ms. Choung
4 was present.
5 Do you recall in what capacity Ms. Choung was
6 there?
7 A. It was my recollection -- I think she was
8 mainly there to be an interpreter. Nobody could
9 understand Mr. Kim. That is -- to the best of my
10 recollection, that was my impression.
11 Q. Nobody, including Ms. Choung or, nobody,
12 excluding Ms. Choung?
13 A. Even Ms. Choung, in my opinion, is difficult
14 to understand.
15 Q. So Ms. Choung is difficult to understand?
16 A. On a scale of 1 to 10, 10 being best,
17 Ms. Choung would maybe be a 6; Mr. Kim and Mr. Kang
18 were a 1. We could not understand them at all.
19 Q. Now, was it your understanding that
20 Ms. Choung was there as a representative of either
21 Mr. Klm, Mr. Kang, or both of them?
22 A. It was my impression that she was there for
23 both of them.
24 Q. For both of them as an interpreter or both of
25 them as a real estate agent and broker?
46
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 A. Given the limits of your question, I would
2 say, perhaps, both capacities.
3 Q. Did Ms. Choung ask any questions, independent
4 of the ones that she was asking on behalf of Mr. Kim
5 or Mr. Kang?
6 A. I don't recall, sir.
7 Q. Okay. Did Ms. Choung identify her
8 profession?
9 A. Yes.
10 Q. And what did she state?
11 A. She was a real estate agent.
12 Q. And did she state specifically who she was an
13 agent for?
14 A. I believe it was Stroope.
15 Q. And did she state in what capacity she was
16 acting as an agent?
17 A. I don't recall.
18 Q. Okay. Let's go back to the October 15, 2001,
19 inspection.
20 You had mentioned seeing some rust; correct?
21 A. Yes, sir.
22 Q. Could you be a little bit more specific about
23 where you saw that rust and whatever else you can tell
24 us about that rust.
25 A. I will try conceptually to describe what I
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 saw and where it was. On an underground storage tank,
2 you have a turbine that sits on top of the tank. And
3 that turbine is -- they vary in size probably,
4 perhaps, a foot, foot and a half in diameter. And
5 it's designed to pump fuel. And on the top of that,
6 there are several devices that are line leak
7 detectors. And to the best of my recollection, I
8 believe on the top of that, there was a little pool of
9 what I thought was to be rust and appeared to me to be
10 fuel.
11 Q. Any idea how long that rust was collecting?
12 MR. MURPHY: Calls for speculation; lack of
13 foundation; calls for an expert opinion for a
14 nondesignated expert person.
15 MR. GALPERIN: Well --
16 MR. MURPHY: I'm just putting my objections
17 in.
18 MR. GALPERIN: I understand the objection,
19 but I think that he is, in fact, capable of answering
20 the question.
21 BY MR. GALPERIN:
22 Q. If you are not, please tell us that you're
23 not.
24 A. It's difficult for me to answer, simply
25 because in this general area, porosity of soil and
48
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 moisture content -- I have seen tanks rusted in
2 2 years, and I have seen some that have been in the
3 ground for 30 years and look pristine. It's difficult
4 to say how long.
5 Q. Did you form an opinion of how long the
6 turbines may have been leaking?
7 MR. MURPHY: Objection. Is it just a "yes"
8 or "no" question, because I won't object if it's "yes"
9 or "no''°
10 MR. GALPERIN: It's not a "yes" or "no," but
11 the question is whether he formed an opinion.
12 MR. MURPHY: Right.
13 MR. GALPERIN: The question is not yet what
14 opinion he formed.
15 MR. MURPHY: Then I'm not going to object to
16 it if it's "yes" or "no."
17 THE WITNESS: Yes.
18 MR. GALPERIN: Okay.
19 MR. MURPHY: Now, with your next question --
20 BY MR. GALPERIN:
21 Q. Now, what do you consider the basis for
22 forming an opinion about how long turbines generally
23 have been leaking? And then the next question will be
24 in the specific instance, but --
25 MR. MURPHY: I'll object before you respond,
49
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 sir. I am just going to note for the record that I
2 object on the basis that it calls for a nondesignated
3 expert opinion, that it lacks foundation, calls for
4 speculation, and lacks foundation, again.
5 MR. GALPERIN: False to all of the above. It
6 seems very obvious to me that this gentleman has
7 looked at a number of different turbines and might
8 have something to say about this one.
9 THE WITNESS: You're asking for my opinion?
10 BY MR. GAL?ERIN:
11 Q. Yes.
12 A. Is that correct?
13 Q. That is correct.
14 A. My opinion is it must have been leaking;
15 although, in my opinion, slow. It had to have been
16 considerable, given the fact that the contamination
17 was so concentrated.
18 Q. Can you explain that to us further, please?
19 MR. MURPHY: Same objections.
20 THE WITNESS: Okay. The reason why I don't
21 think it was leaking at a high volume is because the
22 line leak detectors are designed to go off at .02
23 gallons per hour. If it had been a real big loss out
24 of the turbines, it certainly would have kicked those
25 line leak detectors. That, in fact, didn't happen.
5O
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 So I have seen O-ring packing leak before. They can
2 be very minute. My opinion is just on what I have
3 seen, that it looks like it had been leaking for a
4 while. How long? I couldn't say.
5 BY MR. GAL?ERIN:
6 Q. And so, in summary, this opinion is based on
7 the fact that if there is a leakage of a certain
8 amount that is -- or any amount beyond .02 per hour
9 that the detectors will kick in; is that correct?
10 A. That's correct.
11 MR. MURPHY: Same objections.
12 MR. GAL?ERIN: But --
13 MR. MURPHY: No, I'm just saying "same
14 objection."
15 MR. GALPERIN: What is there to object to in
16 terms of a question about when the detector kicks in?
17 MR. MURPHY: Oh, is that all you're asking?
18 MR. GALPERIN: That's the question, yes.
19 MR. MURPHY: Well, then I withdraw it.
20 MR. GALPERIN: Thank you.
21 BY MR. GAL?ERIN:
22 Q. Did you want to answer?
23 MR. MURPHY: He said "yes."
24 THE WITNESS: I thought I did, yes.
25 III
51
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 BY MR. GALPERIN:
2 Q. Now, what else -- well, you talked about
3 observing the smell in the dirt; correct?
4 A. Yes. It was very, very strong. I would say
5 I got back to the office, and it was so strong I was
6 lightheaded.
7 Q. Was there one part of the dirt that it seemed
8 more concentrated or more obvious than any other part
9 of the dirt?
10 A. Two turbines -- to the best of my memory,
11 they were split up. There were two closer to the
12 station and one further out toward the east end. I
13 didn't notice any odor toward the one turbine on the
14 east end. The two that were closest to .the station,
15 both areas around the facing of the tanks were
16 extremely strong. I didn't notice one end of it any
17 stronger than the other. It was just strong, period.
18 Q. Do you have any idea how much gasoline it
19 would take to create such a smell?
20 MR. MURPHY: Objection --
21 THE WITNESS: No.
22 MR. GALPERIN: I asked if he has any idea.
23 MR. MURPHY: You have to let me say my
24 objection before you cut me off.
25 MR. GALPERIN: Go ahead.
52
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 MR. MURPHY: I am going to object that it
2 lacks foundation; calls for speculation.
3 MR. GALPERIN: Well, I am trying to get
4 foundation here, because I am trying to find out if he
5 has any idea. Then I'll find out how he would form
6 such an idea.
7 THE WITNESS: I have no idea.
8 MR. GALPERIN: Okay. There you have it.
9 BY MR. GALPERIN:
10 Q. Were you aware that the Kangs had certain
11 additional leak monitoring equipment installed in the
12 year 2000?
13 MR. MURPHY: Additional to what?
14 MR. GALPERIN: Well, there Was some leak
15 monitoring equipment that was installed in 2000; so
16 additional to what had been there previously.
17 MR. MURPHY: All right.
18 THE WITNESS: I don't recall, sitting here,
19 without consulting the record.
20 BY MR. GALPERIN:
21 Q. Okay. Were you ever informed of any fuel
22 spills during the course of your serving with the Fire
23 Department at that site?
24 A. Not.that I recall.
25 Q. Now, could you tell us a little bit about
53
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 what the procedure is in terms of taking, analyzing
2 soil samples, then getting the results, and then
3 interpreting those results. How is that process --
4 how does it go?
5 A. Generally, the samples -- there are sampling
6 protocols; as far as sample~, can be taken with an
7 excavator or a hand ~%. There is several
8 methodologies. All of them provide cleanliness, what
9 we call "chain of custody."
10 Once the samples -- they are generally put in
11 a glass jar with a lid. They're assigned a tracking
12 number and a chain of custody. They're all supposed
13 to wear gloves while doing that Then they're packed
14 in ice, and they are taken to a lab where they, again,
15 are checked for -- depending on what you are
16 running -- it would be total petroleum hydrocarbons,
17 it would be MtBE, it could be lead. Depending on what
18 methodology they want or what spectrum they want to
19 use, they can test those. And then analytical reports
20 come to our office, and that goes to Howard Wines.
21 And then he will basically check against what the
22 State levels are as far as what we call "action
23 levels," and we will make a determination if further
24 assessment is needed at that time.
25 Q. And who within the Fire Department here in
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SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 Bakersfield is generally charged with taking those
2 dirt samples?
3 A. I am not sure I understand the question.
4 Q. Well, is there someone in the Fire Department
5 that is generally charged with taking those dirt
6 samples when the Fire Department does take some
7 samples?
8 A. Both Howard and myself are qualified to
9 obtain samples.
10 Q. Okay.
11 A. We're not a certified lab, but we have the
12 equipment. We also have the chain of custody reports,
13 and we can take samples and have them analyzed by a
14 lab.
15 Q. Did you ever personally take samples from the
16 subject property?
17 A. 'No.
18 Q. Do you know if Mr. Wines did?
19 A. I was told he did. Yes.
20 Q. Okay. What happens to those jars after they
21 go to the lab? Do they stay in the lab? Are they
22 stored? Do they go to some central location for
23 storage? Do you know?
24 A. I don't. I don't know what is finally
25 disseminated with the jars. I believe they take
55
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 the -- whatever material to do the test. If no
2 additional test is required, I believe that they're
3 properly disposed of.
4 Q. Do you know if they ever come back to the
5 Fire Department?
6 A. I've never received a sample back, no, sir.
7 Q. So they never make their way back to the file
8 in any way, to the best of your knowledge?
9 A. No, sir. Again, are you referring to the
10 report or the actual --
11 Q. No. I am talking about the actual sample.
12 A. No way. No.
13 Q. The report is, however, supposed to make it
14 back into the file?
15 A. Absolutely.
16 Q. And who is in charge of making sure that the
17 report finds its way back into the file?
18 A. If you're dealing with strictly analytical
19 reports, that would be Mr. Wines. If you're referring
20 to any other documentation, whether it be written or
21 testing, that would be me.
22 MR. GALPERIN: Okay. I don't have any
23 further questions at this time.
24 MR. MURPHY: Let me just ask a couple more.
25 I think we will be done.
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SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 FURTHER EXAMINATION
2 BY MR. MURPHY:
3 Q. Mr. Underwood, have you had any further
4 contact with Mr. Kim regarding the gas station since
5 the hearing at the office?
6 A. To the best of my recollection, no.
7 MR. MURPHY: That's all I have.
8 MR. MURPHY: Same stipulation as the other
9 witness?
10 MR. GALPERIN: So stipulated.
11 (Whereupon, the following was stipulated by
12 and between counsel for the respective parties in
13 the deposition of HOWARD HUNTER WINES, III:
14 "MR. MURPHY: Propose the stipulation
15 that the court reporter be relieved of her
16 applicable duties under the Code of Civil
17 Procedure; that she send the original
18 transcript directly to Mr. Wines at his
19 business office address with a prepaid Fed Ex
20 envelope, which will be good for the weight
21 of the transcript plus the weight of the
22 signature, hopefully; and that the witness
23 will review the transcript and indicate any
24 changes made and sign the original pursuant
25 to the penalties of perjury and then forward
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SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 the original to my office in the previously
2 mentioned envelope; we will maintain custody
3 of the original and produce it at trial, and
4 if for any reason, however, the original is
5 lost, destroyed, or otherwise unavailable for
6 any reason, that a certified copy of the
7 original may be signed and dated and used as
8 if the original; and we will notify counsel
9 of any changes made by the witness, assuming
10 we get everything on time, no longer than
11 three days before -- or what do you want?
12 "MR. GALPERIN: How about within two
13 business days of your getting it back or within
14 three business days prior to trial, whichever is
15 sooner.
16 "MR. MURPHY: That's fine.
17 "MR. McCARTNEY: So stipulated.
18 "MR. GALPERIN: So stipulated.")
19
20 (Whereupon, at 4:39 p.m., the deposition of
21 STEVE UNDERWOOD was concluded.)
22
23
24
25
58
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 STATE OF CALIFORNIA )
) ss.
2 COUNTY OF KERN )
3
4 I, STEVE UNDERWOOD, do hereby certify:
5 That I have read the foregoing deposition;
6 That I have made such changes in form and/or
7 substance to the within deposition as might be
8 necessary to render the same true and correct;
9 That having made such changes thereon, I
10 hereby subscribe my name to the deposition.
11 I declare, under penalty of perjury, that the
12 foregoing is true and correct.
13 Executed this /~ day of
14 ~[~ , 2003, at ~(C~ ,
15 California.
16
17
18
19
2O
STEVE UNDERWOOD
23
24
25
59
SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904
1 STATE OF CALIFORNIA )
) ss.
2 COUNTY OF KERN )
3
4 I, Ruthanne Esparza, a Certified Shorthand
5 Reporter in the State of California, holding
6 Certificate No. 7125, do hereby certify that
7 STEVE UNDERWOOD, the witness named in the foregoing
8 deposition, was by me duly sworn; 'that said deposition
9 was taken Friday, June 27, 2003, at the time and place
10 set forth on the second page hereof.
11 That upon the taking of the deposition, the
12 words of the witness were written down by me in
13 stenotype and thereafter transcribed by computer under
14 my supervision; that the foregoing is a true and
15 correct transcript of the testimony given by the
16 witness.
17 I further certify that I am neither counsel
18 for, nor in any way related to any party to said
19 action, nor in any way interested in the result or
20 outcome thereof.
21 Dated this llth day of July, 2003, at
22 Bakersfield, California.
23
Ruthanne Espa 125
25
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SYLVIA MENDEZ & ASSOCIATES - (661) 631-2904