City of West Sacramento v. R & L Business Management ( 2020 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 ----oo0oo---- 12 13 CITY OF WEST SACRAMENTO, No. 2:18-cv-00900 WBS EFB CALIFORNIA; and PEOPLE OF THE 14 STATE OF CALIFORNIA, 15 Plaintiffs, MEMORANDUM AND ORDER RE: PLAINTIFFS’ MOTION FOR 16 v. PARTIAL SUMMARY JUDGMENT ON ITS PUBLIC NUISANCE AND 17 R AND L BUSINESS MANAGEMENT, a PORTER-COLOGNE ACT CLAIMS California corporation, f/k/a 18 STOCKTON PLATING, INC., d/b/a CAPITOL PLATING INC., a/k/a 19 CAPITOL PLATING, a/k/a CAPITAL PLATING; CAPITOL PLATING, INC., 20 a dissolved California corporation; et al., 21 Defendants. 22 23 ----oo0oo---- 24 Plaintiffs City of West Sacramento, California and the 25 People of the State of California (collectively, “plaintiffs”) 26 brought this action to address toxic levels of soil and 27 groundwater contamination resulting from the release of hazardous 28 1 substances from a metal plating facility formerly located at 319 2 3rd Street, West Sacramento, California (the “Site”). 3 The court previously granted in part plaintiffs’ motion 4 for partial summary judgment, holding defendants R and L Business 5 Management (“R&L”), John Clark, and the Estate of Nick E. Smith 6 (collectively, “defendants”) liable under the Comprehensive 7 Environmental Response, Compensation, and Liability Act 8 (“CERCLA”), 42 U.S.C. § 9607(a). (Order at 10 (Docket No. 125).) 9 The court found that triable issues of material fact remained as 10 to plaintiffs’ claim under the Resource Conservation and Recovery 11 Act (“RCRA”), 43 U.S.C. § 6972. (Id. at 14-16.) 12 After holding an evidentiary hearing, the court further 13 determined that defendants’ contribution to the pollution at the 14 Site was not divisible from the total contamination present at 15 the Site under CERCLA. (See Mem. and Order re: Defendants’ 16 Divisibility Defense (“Divisibility Order”) (Docket No. 203).) 17 The court described the factual and procedural background of this 18 lawsuit in great detail in these prior orders. (See Docket Nos. 19 125, 203.) 20 Plaintiffs now move for partial summary judgment 21 against defendants as to their claims under California public 22 nuisance law and the Porter-Cologne Water Quality Control Act, 23 Cal. Wat. Code § 13304(c).1 24 I. Legal Standard 25 1 Plaintiffs’ contemporaneous motion for summary judgment on their claims under the Gatto Act, Cal. Health & Safety Code §§ 26 25403.1, 25403.5; the Carpenter-Presley-Tanner Hazardous 27 Substance Account Act (“HSAA”), Cal Health & Safety Code § 25363(d); and for Injunctive Relief will be decided in a separate 28 Order. 1 A. Summary Judgment 2 Summary judgment is proper “if the movant shows that 3 there is no genuine dispute as to any material fact and the 4 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 5 P. 56(a). A material fact is one that could affect the outcome 6 of the suit, and a genuine issue is one that could permit a 7 reasonable jury to enter a verdict in the non-moving party’s 8 favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 9 (1986). 10 The party moving for summary judgment bears the initial 11 burden of establishing the absence of a genuine issue of material 12 fact and can satisfy this burden by presenting evidence that 13 negates an essential element of the non-moving party’s case. 14 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 15 Alternatively, the movant can demonstrate that the non-moving 16 party cannot provide evidence to support an essential element 17 upon which it will bear the burden of proof at trial. Id. Any 18 inferences drawn from the underlying facts must, however, be 19 viewed in the light most favorable to the party opposing the 20 motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 21 U.S. 574, 587 (1986). 22 II. Discussion 23 Plaintiffs first argue that they are entitled to 24 summary judgment on their claim that defendants’ contributions to 25 pollution at the Site have caused a public nuisance. (See Pls.’ 26 Mem. P. & A. at 23-32 (Docket No. 204).) Under California law, a 27 nuisance is “[a]nything which is injurious to health . . . or is 28 indecent or offensive to the senses, or an obstruction to the 1 free use of property, so as to interfere with the comfortable 2 enjoyment of life or property . . . .” Cal. Civ. Code § 3479. A 3 public nuisance is “one which affects at the same time an entire 4 community or neighborhood, or any considerable number of persons, 5 although the extent of the annoyance or damage inflicted upon 6 individuals may be unequal.” Cal. Civ. Code § 3480. A plaintiff 7 must show “substantial and unreasonable interference, either with 8 a public right or with the enjoyment of a plaintiff's property.” 9 Coppola v. Smith, 935 F. Supp. 2d 993, 1017–19 (E.D. Cal. 2013) 10 (Ishii, J.) (citing City of Los Angeles v. San Pedro Boat Works, 11 635 F.3d 440, 452 (9th Cir. 2011); People ex rel. Gallo v. Acuna, 12 14 Cal. 4th 1090 (Cal. 1997)). 13 To prevail on a claim of public nuisance, “[a] 14 plaintiff must establish a ‘connecting element’ or a ‘causative 15 link’ between the defendant’s conduct and the threatened harm.” 16 Citizens for Odor Nuisance Abatement v. City of San Diego, 8 Cal. 17 App. 5th 350, 359 (2017) (quoting In re Firearm Cases, 126 Cal. 18 App. 4th 959, 988 (2005)). “[T]he causation element of a public 19 nuisance cause of action is satisfied if the conduct of a 20 defendant is a substantial factor in bringing about the result.” 21 People v. ConAgra Grocery Products Co., 17 Cal. App. 5th 51, 101 22 (2017). 23 “‘The substantial factor standard is a relatively broad 24 one, requiring only that the contribution of the individual cause 25 be more than negligible or theoretical.’ Thus, ‘a force which 26 plays only an infinitesimal or theoretical part in bringing about 27 injury, damage, or loss is not a substantial factor,’ but a very 28 minor force that does cause harm is a substantial factor.” Id. 1 (quoting Bockrath v. Aldrich Chem. Co., 21 Cal. 4th 71, 79 (Cal. 2 1999)). 3 Plaintiffs also argue that they are entitled to summary 4 judgment on their claim that defendants violated the Porter 5 Cologne Water Quality Control Act. The Porter-Cologne Act permits 6 a governmental cost recovery claim to be brought against “any 7 person who has discharged or discharges waste . . . or who has 8 caused or permitted . . . waste to be discharged or deposited . . 9 . into the waters of the state and creates, or threatens to 10 create, a condition of pollution or nuisance.” Cal. Wat. Code § 11 13304(a). 12 To prevail on a claim under the Porter-Cologne Act, a 13 plaintiff must satisfy the same common-law causation requirements 14 as for a claim under California public nuisance law. See City of 15 Modesto Redev. Agency v. Superior Court, 119 Cal. App. 4th 28, 38 16 (2004) (“[I]t appears that the Legislature not only did not 17 intend to depart from the law of nuisance, but also explicitly 18 relied on it in the Porter-Cologne Act . . . .”). 19 Here, a disputed issue of fact remains as to whether 20 defendants’ acts or omissions were a substantial factor in 21 causing the nuisance or condition of pollution at issue. 22 Defendants’ expert, Dr. Love, and plaintiffs’ expert, Dr. Farr, 23 disagree as to the extent of defendants’ contribution to the 24 pollution at the Site. While Dr. Farr concludes that defendants’ 25 contribution was significant enough to require remediation on its 26 own, independent of any contributions made by prior operators of 27 the Site (see Salazar Decl. Ex. C, Rebuttal Exp. Report of Dr. 28 Farr at 5-13 (“Farr Rebuttal”) (Docket No. 206-1)), Dr. Love ene ene en nnn nn nnn nnn nn on I EE ON IO EEE 1 concludes that defendants’ contributions “would have been trivial 2 compared to the numerous years of hazardous materials release 3 from previous Site operations” and “would reasonably be expected 4 to not have, on their own, caused the need for site clean-up” 5 (see Salazar Decl. Ex. B, Exp. Report of Dr. Love at 15 (“Love 6 | Report”) (Docket no. 206-1)). Though the court previously 7 assessed the experts’ credibility the evidentiary hearing on 8 defendants’ divisibility defense under CERCLA, the court made no 9 finding of credibility in the context of issue of causation now 10 before the court. (See generally Divisibility Order.) 11 Plaintiff’s motion for summary judgment on its nuisance 12 | and Porter Cologne Act claims must therefore be denied. See 13 Celotex, 477 U.S. at 322-23. The court will resolve the 14 credibility of Dr. Love and Dr. Farr as to causation with respect 15 to plaintiffs’ claims for nuisance Porter Cologne Water Quality 16 | Control Act violation at the time of trial. 17 IT IS THEREFORE ORDERED that plaintiffs’ motion for 18 summary judgment (Docket No. 204) be, and the same hereby is, 19 | DENIED as to plaintiffs’ claims under California public nuisance 20 law and the Porter Cologne Water Quality Control Act. 21 | Dated: October 28, 2020 dete, . 4h. 22 WILLIAM B. SHUBB 33 UNITED STATES DISTRICT JUDGE 24 25 26 27 28