Filed 11/30/23 Borel v. City of Murrieta CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ANTHONY BOREL,

 Plaintiff and Appellant,

v.

CITY OF MURRIETA,

 Defendant and Respondent.

 G062732

 (Super. Ct. No. RIC2002687)

 O P I N I O N

Appeal from a judgment of the Superior Court of Riverside County, 

Sunshine S. Sykes and Craig Riemer, Judges. Reversed and remanded with instructions.

Roberts Jeandron Law, Jeffrey Travis Roberts; Law Offices of Alan S. 

Yockelson and Alan S. Yockelson for Plaintiff and Appellant.

Horvitz & Levy, David M. Axelrad and Robert H. Wright; Bremer Whyte 

Brown & O’Meara, Tyler D. Offenhauser and Kevin B. Wheeler for Defendant and 

Respondent.
2

INTRODUCTION

Anthony Borel was on a residential worksite in Murrieta (the City) the 

summer of 2019 when the home exploded due to a natural gas leak. Borel alleged the fire 

crew that responded to the report of a leak failed to establish a perimeter or evacuation 

zone around the leak area and allowed people to go in and near the home. He was 

amongst the people allowed to go near the home to retrieve his tools. While he was 

doing this, the homeowner asked the captain on the scene if she could enter the house to 

retrieve some personal items. Shortly after she entered, the home exploded and Borel 

was seriously injured. He seeks to recover damages for his injuries from, among others, 

the City of Murrieta.

In response to Borel’s public entity negligence claim, the City successfully 

moved for summary judgment, on the ground its firefighters’ conduct at the scene was 

subject to emergency services immunity under Health and Safety Code section 1799.107.1 

Section 1799.107 creates immunity for public entities and emergency rescue personnel 

for injuries caused when they take action to provide emergency services, so long as the 

actions are not performed in bad faith or with gross negligence. 

We reverse. While we agree the City can invoke section 1799.107, we 

conclude there is sufficient evidence to create triable issues of material fact as to whether 

the firefighters acted with gross negligence.

FACTS

On July 15, 2019, Borel was working as a solar panel installer for Horizon 

Solar. That morning, he was working on the roof of a residence located at 23562 

Wooden Horse Trail in Murrieta when a coworker advised an underground gas line was 

1

All statutory references are to the Health and Safety Code unless otherwise indicated.
3

leaking along the side of the home.2 Borel got down from the roof and waited for further 

instructions. His coworkers called 911 emergency services to report the leak. 

The City’s fire protection district responded to the call with personnel 

Captain Shad Chanley, Engineer Andy Stang, and Paramedic Randy Lopez arriving on 

scene at approximately 10:57 a.m. They confirmed there was indeed gas leaking 

alongside the house and they waited for personnel from Southern California Gas 

company (the Gas Company) to come and remediate the problem. The Gas Company 

arrived at around 11:23 a.m. and began working on the leak. To remediate it, they had to 

shovel and jackhammer around the area of the leak. 

Shortly thereafter, the Gas Company employees informed Captain Chanley 

that he and his crew could leave the scene, indicating the risk from the gas leak was low. 

Nonetheless, he decided to keep his crew at the scene “in order to continue to render aid 

as needed.” However, his team did not set up a perimeter around the home or evacuate 

the vicinity to keep the public away. Instead, they stayed in the vicinity and watched the 

Gas Company attend to the leak. 

A few minutes after noon, the owner of the house, a Mrs. Haaland, asked 

Captain Chanley if she could enter her residence in order to retrieve some personal items 

she needed. Captain Chanley told her she could enter. Five minutes later, the gas inside 

the house ignited, causing an explosion. Unbeknownst to anyone at the scene, the gas 

had migrated from the exterior to the interior of the home. Borel was standing within feet 

of the garage door when the house exploded, and was blown across the street. He was 

knocked unconscious and suffered a serious head injury as well as burns to his body. 

Borel filed a lawsuit against the City and the Gas Company for negligence. 

The City filed for summary judgment, citing section 1799.107 and arguing its firefighters 

were providing emergency services at the site of the gas leak. The City further argued

2

There is some dispute as to how the gas leak occurred. But for purposes of this motion, Borel was 

willing to concede the gas line was ruptured. 
4

Borel could not show they acted in a grossly negligent or bad faith manner. The trial 

court agreed and granted summary judgment, from which Borel now appeals.

DISCUSSION

Section 1799.107 became effective in 1984, and through it, the Legislature 

sought to provide a qualified immunity to public entities and emergency rescue personnel 

providing emergency services. (Id., subd. (a).) The Legislature made explicit that the 

immunity was intended to encourage provision of emergency services by these entities in 

order to protect the public health and safety. (Ibid.) The statute defines “‘emergency 

services’” in an expansive way – the term “includes, but is not limited to, first aid and 

medical services, rescue procedures and transportation, or other related activities 

necessary to insure the health or safety of a person in imminent peril.” (Id., subd. (e).) 

As such, the term “‘emergency rescue personnel’” includes any member of a firefighting 

or fire protection entity, whether publicly or privately operated, so long as he or she is 

“actually engaged in providing emergency services[.]” (Id., subd. (d).) Section 

1799.107, subdivision (b) states in pertinent part that “neither a public entity nor 

emergency rescue personnel shall be liable for any injury caused by an action taken by 

the emergency rescue personnel acting within the scope of their employment to provide 

emergency services, unless the action taken was performed in bad faith or in a grossly 

negligent manner.”

Borel takes aim at the two main determinations made by the trial court. 

First, its determination that immunity under section 1799.107 attached at all. Second, its 

conclusion that there was no triable issue concerning gross negligence of the firefighters. 

We conclude the trial court answered the first question correctly but erred as to the 

second. Even if the City met its burden to show section 1799.107 was applicable, Borel 

adequately raised a triable issue of material fact concerning gross negligence. The 

summary judgment motion should have been denied. 
5

I. Summary Judgment and Section 1799.107

We independently review a grant or denial of summary judgment. (See 

Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67-68). The nature of, and 

requirements for, summary judgment have been discussed so many times in the case law 

as to become somewhat cliched. Nevertheless, the principles bear not only repeating, but 

thoughtful reflection in each case. 

Summary judgment is appropriate if—and only if—the papers submitted to 

the court show there is no triable issue of material fact, and the moving party is entitled to 

judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Essentially, the 

summary judgment procedure helps save time if “there is no issue requiring a trial as to 

any fact” germane to the pleadings or necessary pursuant to the applicable law. (See 

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) If the facts 

germane to the action are undisputed, the court must decide the case as a matter of law. 

(See Antonopoulos v. Mid-Century Ins. Co. (2021) 63 Cal.App.5th 580, 593.) But if the 

court finds any issue of material fact to be tried, it can go no further; the motion must be 

denied. (See D.E. Sanford Co. v. Cory Glass Etc. Co. (1948) 85 Cal.App.2d 724, 726.) 

“An issue of fact becomes one of law and loses its ‘triable’ character only if the 

undisputed facts leave no room for a reasonable difference of opinion.” (Atlantic Mutual 

Ins. Co. v. J. Lamb, Inc. (2002) 100 Cal.App.4th 1017, 1031, italics added.)

“[F]rom commencement to conclusion, the party moving for summary 

judgment bears the burden of persuasion that there is no triable issue of material fact and 

that he is entitled to judgment as a matter of law.[fn] That is because of the general 

principle that a party who seeks a court’s action in his favor bears the burden of 

persuasion thereon. (See Evid. Code, § 500.)” (Aguilar, supra, 25 Cal.4th at p. 850.) 

Where the defendant is the moving party, it may meet this burden by either showing 

plaintiff cannot establish a necessary element of his case, or by establishing a complete 

defense thereto. (Code Civ. Proc., § 437c, subd. (o)(2).) In this case, the City attempted 
6

to meet its burden by doing the latter; it sought to establish it is exempt from liability due 

to statutory immunity.

Unlike the burden of persuasion, the burden of production can shift on a 

summary judgment motion. The moving party generally bears the initial burden of 

production to show an absence of triable issues of material fact, and if successful, the 

burden of production shifts to the opposing party to make a prima facie showing of the 

existence of triable issues. (See Aguilar, supra, 25 Cal.4th at p. 850.) “A burden of

production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of 

persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite 

degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting 

of a burden of persuasion. For if the moving party carries a burden of persuasion, the 

opposing party can do nothing other than concede.” (Aguilar, supra, 25 Cal.4th at p. 

850.) 

But the burden of production can also shift where the applicable law 

provides for a rebuttable presumption, as noted earlier this year by the First District Court 

of Appeal in Degala v. John Stewart Co. (2023) 88 Cal.App.5th 158, 166-167 (Degala).) 

Degala involved application of the Privette doctrine of workplace injury liability. In our 

case, the burden shift takes place by operation of statute. Section 1799.107 explicitly 

states: “For purposes of this section, it shall be presumed that the action taken when 

providing emergency services was performed in good faith and without gross negligence. 

This presumption shall be one affecting the burden of proof.” (Id., subd. (c).) Thus, the 

City’s moving burden of production was to show section 1799.107 applies; that the 

firefighters were “emergency rescue personnel acting within the scope of their 

employment to provide emergency services” at the time of the explosion. (Id., subd. (b).) 

If they met that burden, Borel would bear the burden to produce evidence of bad faith or 

gross negligence. 
7

Importantly though, the burden of persuasion remained with the City. And 

this burden impacted how the court was to view the evidence produced in making its 

determination. The court was required to consider all of the evidence, unless it sustained

objections to any particular piece of evidence, and it also had to consider all inferences 

reasonably drawn from such evidence. (Aguilar, supra, 25 Cal.4th at p. 843.) 

Additionally, the evidence must be viewed “in the light most favorable to . . . the 

nonmoving party.” (Degala, supra, 88 Cal.App.5th at p. 167.) The nonmoving party’s 

evidentiary submissions and declarations are to be given liberal construction, while the 

moving party’s submissions are strictly construed. And all “evidentiary doubts or

ambiguities” must be resolved in favor of the nonmoving party. (Ibid.) Here the trial 

court erred because it strictly construed the opposing evidence in granting summary 

judgment.

II. Applicability of Section 1799.107

As noted above, section 1799.107 protects firefighting personnel when they 

are actually engaged in providing “‘emergency services,’” a term expressly defined in the 

statute to include “first aid and medical services, rescue procedures and transportation, 

and other related activities necessary to insure the health or safety of a person in 

imminent peril.” (Id., subd. (e).) Borel does not concede the firefighters at the scene 

were providing emergency services because there was no one “in imminent peril” when 

they arrived and they themselves did not believe there was any danger. Borel points to 

the firefighters’ own deposition testimony, in which they admitted that, prior to the blast, 

they did not believe anyone was in imminent peril. They all believed the gas from the 

ruptured line was dissipating into the atmosphere rather than going inside the home. 

Indeed, Lopez admitted they were not engaged in any activities to ensure the safety of 

persons in imminent peril when the blast occurred. 

We see it differently. While “[t]he general rule of statutory construction is 

that a legislative grant of privilege or immunity is strictly construed against the 
8

grantee[,]” (Katsaris v. Cook (1986) 180 Cal.App.3d 256, 265), the Legislature’s 

language here supports application of the immunity statute. Pursuant to section 1797.70, 

an “emergency” for purposes of the immunity statute3“means a condition or situation in 

which an individual has a need for immediate medical attention, or where the potential 

for such need is perceived by emergency medical personnel or a public safety agency.” 

(§ 1797.70, italics added.) Captain Chanley testified the Gas Company gave his crew 

clearance to exit the scene before the explosion. Yet they decided to stick around in case 

they were needed. Captain Chanley said it was his department’s practice to remain on 

scene until the gas operator had shut down the gas leak. This was “in case something 

happen[ed],” though he did not make clear what those “somethings” might be. This 

testimony demonstrates the fire crew’s perception that their services might be required so 

long as the leak remained active. 

We also question whether the firefighters’ subjective belief regarding

imminent peril is determinative of whether imminent peril actually exists. Peril is a state 

of being, not necessarily a state of mind. To be exact, it is “the situation or state of being 

in imminent or fearful danger” or “a position of jeopardy.” (Webster’s 3d New Internat. 

Dict. (1981) p. 1680.) And the term “imminent” means “ready to take place,” “near at 

hand,” or “impending.” (Id. at p. 1130.) It is possible for someone to be completely 

oblivious to an imminent peril. And so it was here. Just because the firefighters sensed 

no danger close at hand doesn’t mean it wasn’t lurking. Based on subsequent events, 

everyone in the vicinity of the home was in imminent peril that afternoon, though they 

may not have known it at the time. 

Additionally, the immunity applies to those providing services “necessary 

to insure the health or safety of a person in imminent peril.” (§ 1799.107, subd. (e), italics 

added.) “Insure” is another form of the word “ensure,” which means, among other 

3

This definition is found within Chapter 2 of Division 2.5 of the code and “govern[s] the 

provisions” of said division – including section 1799.107 – “[u]nless the context otherwise requires.” (§ 1797.50.)
9

things, “to make sure, certain, or safe” or to “guarantee.” (Webster’s 3d New Internat. 

Dict. (1981) pp. 756.) The point in time at which the public’s health or safety is 

“insured” at the scene of a gas leak is one we are ill-equipped to measure as a matter of 

law. We would be loath to encourage emergency personnel to leave the scene because 

they think people are probably out of harm’s way. The Legislature wisely endorsed them 

staying on scene to insure safety. They must decide when it is safe for them to go.

4

But perhaps most glaringly, Borel’s response to the City’s requests for 

admission all but establish the point he now contests. The City asked him to:

“Admit that CITY OF MURRIETA’s role at the scene of the INCIDENT was to 

act to insure the health or safety of the persons in the area.” Without qualification or 

objection, Borel admitted the request. “Any matter admitted in response to a request for 

admission is conclusively established against the party making the admission in the 

pending action, unless the court has permitted withdrawal or amendment of that 

admission . . . .” (Code Civ. Proc., § 2033.410, subd. (a).)

Borel attempts to negate the evidentiary effect of his response by arguing 

the statement involved a “mixed question of fact and law” inappropriate for resolution on 

summary judgment. We disagree. His admission resolved any mixed question of fact, if 

any ever existed on this issue. 

“Code of Civil Procedure section 2033.010 allows any party to a civil 

action to obtain discovery ‘by a written request that any other party to the action admit

. . . the truth of specified matters of fact, opinion relating to fact, or application of law to 

fact.’ (Italics added.) Thus, ‘when a party is served with a request for admission 

4

This is not to say we endorse blanket application of the immunity statute to every situation 

involving emergency rescue personnel. We can envision clear scenarios in which emergency services are no longer 

being provided, and thus, immunity would no longer attach. For instance, had the firefighters gone to eat their lunch 

at a park nearby, or had they stopped into a neighbor’s house for a social call, they would no longer be providing 

emergency rescue services. We do not have such a scenario here, however. Whether they were physically active

before the blast is less relevant in light of the dangers which later became tragically clear. So long as the clear 

objective of the firefighters’ presence at the scene was insuring the health and safety of those in the area, they are 

covered.
10

concerning a legal question properly raised in the pleadings he cannot object simply by 

asserting that the request calls for a conclusion of law. He should make the admission if 

he is able to do so and does not in good faith intend to contest the issue at trial, thereby 

“setting at rest a triable issue.” [Citation.] Otherwise he should set forth in detail the 

reasons why he cannot truthfully admit or deny the request. [Citation.]’ (Burke v. 

Superior Court (1969) 71 Cal.2d 276, 282; see Cembrook v. Superior Court (1961) 56 

Cal.2d 423, 429.)” (Joyce v. Ford Motor Co. (2011) 198 Cal.App.4th 1478, 1488-1489.) 

If Borel had any concern about the nature of the question or how an 

admission could be interpreted, he should have said as much in his response. Or, he 

should have moved to withdraw the admission. But once established, facts admitted in 

response to requests for admission may not be negated by contradictory evidence. (See 

Stover v. Bruntz (2017) 12 Cal.App.5th 19, 30.)

Here, Borel admitted the fire crew’s “role” at the scene was to insure the 

health and safety of persons in the area. Though often issues of duty come into play 

when dealing with the “role” of public entities, the City’s question, at its heart, was 

factual in nature. It goes to the purpose for the crew’s presence there; why did they come 

and why would they have stayed after being told they could go? We surmise both the 

City and Borel would give the same answers to those questions. Indeed, we surmise most

people would – why else would a fire crew show up at the scene of a gas leak and stick 

around while work was being done if not to ensure the health and safety of residents?

Borel also argues the City, in its separate statement, misrepresented his 

response by claiming he had admitted the City’s “response to the incident was to insure 

the health and safety of persons imperiled by the dangers presented by the gas leak.” 

(Italics added.) But this was not a misrepresentation. If the crew’s role at the scene was 

to insure the health and safety of persons in the area, surely its response to the incident

was calculated to fulfill this role. 

We conclude the City met its burden to bring section 1799.107 into play.
11

III. Gross Negligence

Once the City met its moving burden to show section 1799.107 immunity 

attached, the burden of production shifted to Borel to rebut the presumption of good faith 

and lack of gross negligence bestowed by subdivision (c) of the statute. We conclude he 

successfully did so by raising triable issues of material fact regarding gross negligence.

We start by attempting to define the scope of “gross negligence” as the 

Legislature likely meant it under section 1799.107, subdivision (c). We must try to “give 

effect to the usual, ordinary import of” the phrase and construe it “in context in light of 

the nature and obvious purpose of the statute” itself. (See Decker v. City of Imperial 

Beach (1989) 209 Cal.App.3d 349, 354 (Decker).) As the California Supreme Court 

stated when construing this very statute twenty years ago, the phrase “gross negligence” 

has been defined in the case law as “‘“ the want of even scant care or an extreme 

departure from the ordinary standard of conduct.”’” (Eastburn v. Regional Fire 

Protection Authority (2003) 31 Cal.4th 1175, 1185-1186, quoting Franz v. Board of 

Medical Quality Assurance (1982) 31 Cal.3d 124, 138 and Decker, supra, 209 

Cal.App.3d at p. 358.) 

Gross negligence is to be distinguished from ordinary negligence, which 

“consists of a failure to exercise the degree of care in a given situation that a reasonable 

person under similar circumstances would employ to protect others from harm.” (See 

City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (City of Santa 

Barbara).) When resolving motions for summary judgment, trial courts must “maintain[] 

a distinction” between the two. (Id. at p. 767.)

“Generally it is a triable issue of fact whether there has been such a lack of 

care as to constitute gross negligence . . . but not always.” (Decker, supra, 209 

Cal.App.3d at p. 358.) Because of the statutory presumption in section 1799.107, 

subdivision (c), it is Borel who must produce evidence showing gross, not ordinary,

negligence by a preponderance of the evidence. (See Evid. Code, § 115.) 
12

The cases discussing gross negligence in the context of summary judgment 

tend to appear more often than not in the sphere of primary assumption of risk, especially 

following the California Supreme Court’s ruling in City of Santa Barbara, in which our

high court held a contractual release of liability for all negligence, including gross 

negligence, was unenforceable. (City of Santa Barbara, supra, 41 Cal.4th at pp. 779-

780.) In order to overcome a primary assumption of risk defense, the plaintiff must show

the defendant’s negligence transcends the ordinary and drifts into the territory of gross. 

In these cases, courts have most often affirmed grants of summary judgment where the 

plaintiff had no evidence showing an extreme departure from the standard of care (see 

Joshi v. Fitness Internat., LLC (2022) 80 Cal.App.5th 814, 828-829 [plaintiff could not 

recover against health club even though it knew sauna needed light bulb replaced prior to 

her trip and fall accident]; Brown v. El Dorado Union High School Dist. (2022) 76 

Cal.App.5th 1003, 1029 [high school football player could not recover against school 

district for traumatic brain injury suffered during game because he was warned about 

injury and coaches were taking steps to monitor players during game]; Honeycutt v. 

Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251, 259-260 [kickboxing student 

could not recover against health club when her kickboxing instructor held her leg to guide

her on proper execution of roundhouse kick]; Anderson v. Fitness Internat., LLC (2016) 4 

Cal.App.5th 867, 884-885) [health club patron could not recover for injuries suffered 

when he slipped on a shower floor which could be expected to be covered with soap 

residue], or where the plaintiff merely showed the defendant might have done better. 

(See Decker, supra, 209 Cal. App.3d at p. 361 [surfer drowned after rescue personnel 

allegedly used an ineffective rescue technique]; Willhide-Michiulis v. Mammoth 

Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 364-365 [skier was injured when 

snowcat operator allegedly drove too fast down ski run and collided with her].)

In contrast, grants of summary judgment are often reversed where there is

evidence that could show a want of even scant care or extreme departure from the 
13

standard of care. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 857 [equestrian 

student could recover against instructor who knowingly allowed her to ride a horse the 

instructor knew to be unfit].) The court’s task in such cases is to determine whether, 

viewing the evidence in the light most favorable to the plaintiff, the defendants’ conduct 

could reasonably be seen by a jury as an extreme departure. If so, summary judgment 

cannot be granted. At that point, whether or not the defendants were indeed grossly 

negligent becomes a question for the jury. (See Jimenez v. 24 Hour Fitness USA, Inc.

(2015) 237 Cal.App.4th 546, 555.) We find Borel’s evidence falls into this latter 

category.

There are, of course, some different considerations in the public entity 

immunity context, as compared to the primary assumption of risk context. In County of 

San Diego v. Superior Court (2015) 242 Cal.App.4th 460, a case involving hazardous 

recreational activity immunity under Government Code section 831.7, the court refused 

to apply the gross negligence exception because it found the county did not act 

negligently when plaintiff was injured while using a rope swing over a ravine filled with 

tree debris. The court noted the immunity existed to encourage public entities to open 

their land for recreational use without fear of liability from those engaging in inherently 

dangerous activities on the land. (Id. at p. 468.) By this reasoning, the county should not 

be liable if parkgoers did not use due care while using the land.

In Mubanda v. City of Santa Barbara (2022) 74 Cal.App.5th 256, the court 

affirmed summary judgment in favor of the city based on Government Code section 

831.7 after plaintiff’s son died while paddleboarding in the harbor. (Id. at p. 259.) It 

found the gross negligence exception did not apply because drowning is an inherent risk 

of paddleboarding and the city had taken numerous steps to make the activity safer. They 

had posted signs, maps, and tips to paddleboarders, provided training, required 

paddleboarders to have certain safety equipment with them, and regularly patrolled the 

harbor. (Id. at pp. 264-265.)
14

Our review here is informed by our conclusion section 1799.107 was 

clearly designed to encourage emergency personnel to engage in life-saving activities 

without fear of being held liable for injuries they cause – a point ably made by Borel’s 

counsel in the trial court. But we cannot find anything in our record to support a finding 

they were engaged in such active rescue activity. We therefore conclude the presumption

has been sufficiently rebutted to allow the question of whether there has been gross 

negligence to go to the jury. 

A. The Miller Declaration

We feel compelled first to address the centerpiece of Borel’s evidence in 

opposition to summary judgment: a declaration submitted by his firefighting expert John 

Miller. The parties seem to disagree on whether we should consider it in our analysis. 

Miller opined that Captain Chanley, Lopez, and Stang’s conduct prior to 

the explosion represented an extreme departure from the standard of care. The City 

objected strenuously to the declaration on numerous grounds, including foundation, 

relevance, and speculation. The trial court overruled the foundation and relevance 

objections, but sustained the speculation objection because it determined Miller had not 

connected the factual predicates he discussed to his proposed conclusion.

5

 As a result, it 

granted summary judgment.

Borel did not appeal the court’s evidentiary ruling, and didn’t argue in his 

opening brief it was incorrect. The City, in its responsive brief, pounced on this, and 

argued any quibble with the court’s evidentiary ruling has thus been waived. The City is 

correct on this. “Issues do not have a life of their own: if they are not raised or supported 

by argument or citation to authority, we consider the issues waived.” (See Jones v. 

Superior Court (1994) 26 Cal.App.4th 92, 99.) 

5 We find this a strained reading of the declaration, contrary to the liberal construction we are 

required to give opposing declarations.
15

Borel contends he waived nothing because the trial court sustained only one 

of the City’s objections to the Miller declaration, as opposed to all of them. But one 

sustained objection was all the City needed to get the declaration excluded. In fact, the 

minute order indicates all six of the City’s objections to the Miller declaration were 

sustained. We must consider the Miller declaration a nullity for purposes of our review.

B. The Undisputed Facts

However, the other evidence Borel marshaled in support of summary 

judgment was enough.6 The City does not dispute that natural gas is a hazardous 

material, and concedes its firefighters knew it was flammable. And even if they had not 

admitted as much, this fact is so widely known as to be potentially judicially noticeable. 

The evidence indicates the firefighters were not aware the gas had migrated 

inside the home and believed it was dissipating into the atmosphere. As such, they did 

not think bystanders or any in the vicinity required protection. They were also clearly

relying on the Gas Company to remediate the leak. But we are still left to wrestle with 

the question of why they stayed on the scene. Captain Chanley indicated it was policy to 

do so “in case something happen[ed].” The necessary follow-up question then is: what 

did they think might “happen”? The evidence suggests the fire crew knew there was an 

ongoing risk from the gas leak and knew what consequences might result. Yet they admit 

they took no steps to keep people away from the danger. If you were there in case 

something happened, it is hard to explain why you allowed people inside and next to the 

house. 

6

In addition to the record evidence, Borel has submitted deposition testimony from Sergio Flores, 

an employee of the Gas Company, which was taken on June 6, 2022, seven days before this appeal was filed. 

Obviously, the trial court never had occasion to review this document in connection with its ruling. Borel requests 

judicial notice of the deposition as a “‘self-authenticating’” document under Rialto Citizens for Responsible Growth 

v. City of Rialto (2012) 208 Cal.App.4th 899, 915, fn. 5 (Rialto). Unlike in Rialto, however, the City opposes 

judicial notice, arguing the transcript contains hearsay. The Rialto court never explained why judicial notice of the 

deposition transcript therein was appropriate. We deny the request for judicial notice. 
16

Since most people use or own natural gas-powered grills or stoves, and are 

aware that natural gas ignites easily, we do not think expert testimony is necessary for a

reasonable juror to conclude no one should have been permitted within a certain radius of 

the gas leak. Even more egregious, in the eyes of a reasonable juror, could be the 

decision to allow Mrs. Haaland to go back into the house to retrieve items. Captain 

Chanley did not know whether the gas leak had been stopped. At the same time, he knew 

Mrs. Haaland could introduce another potential ignition source through static electricity

or through misadventure. It is difficult to reconcile.

The City may argue the firefighters’ action and lack thereof represents a 

mere departure from the ordinary standard of care, rather than an extreme one. That may 

be a successful argument. But a reasonable jury might also conclude this was not a mere 

departure from the standard of care but a complete abandonment of the standard of care –

in other words, gross negligence. We conclude the decision ought to be left to them.

DISPOSITION

The judgment is reversed and the trial court is directed to enter an order 

denying the City’s motion for summary judgment, or alternatively, summary 

adjudication. Appellant to recover his costs on appeal.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

SANCHEZ, J.