Alexander v. Exxon Mobil , 162 Cal. Rptr. 3d 617 ( 2013 )

Filed 9/24/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DORIS ALEXANDER, et al., B242458
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC435640)
v.
EXXON MOBIL, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Anthony
Mohr, Judge. Reversed in part and affirmed in part.
David P. Bender, Jr., Caroline R. Hurtado and Michael J. Stoner, for Plaintiffs and
Appellants.
Kaye Scholer, Larry Feldman, Peter Haviland and Robert Estrin, for Defendant
and Respondent Exxon Mobil Corporation.
Parker, Milliken, Clark, O‟Hara & Samuelian, Gary A. Meyer, Pedram F. Mazgani
and Isaac B. Simon, for Defendants and Respondents the County of Los Angeles,
Housing Authority of the County of Los Angeles and the Community Development
Commission of the County of Los Angeles.
_________________________
INTRODUCTION
In April of 2010, over 700 plaintiffs filed a toxic tort action alleging injury from
exposure to environmental contamination at a low-income housing complex constructed
on a former oil storage facility. Defendants filed a demurrer arguing that the action was
time-barred because the allegations in the complaint demonstrated plaintiffs knew, or
should have known, of the environmental contamination several years before filing suit.
The trial court sustained the demurrer without leave to amend against a subset of
approximately 100 plaintiffs who admitted receiving notice of the contamination in 2007.
The court concluded that although the notices suggested the contamination was not
harmful, they were nonetheless sufficient to cause a reasonably prudent person to suspect
that it might be so.
Fifty-eight of the dismissed plaintiffs join in this appeal, arguing that whether their
causes of action accrued at the time they received notice of the environmental
contamination raises a question of fact that is not amendable to resolution on demurrer.
We agree and reverse the trial court‟s order of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background Facts1
Between 1924-1962, Exxon Mobil and its predecessors in interest (collectively
Exxon) owned and operated the “Athens Tank Farm” (ATF), which was used to store
gasoline and petroleum products. The ATF site contained “twenty-two 80,000 barrel
steel above-ground storage tanks, two crude oil reservoir/sumps with a capacity of 1.8
million barrels, a pipeline pumping station and an absorption plant.” During the course
of operations, Exxon allowed millions of pounds of crude oil, gasoline and other
1 These background facts are based on the allegations in plaintiffs‟ fourth amended
complaint, which we accept as true for the purposes of this appeal. (See Carter v. Prime
Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 401 [“Because this case
comes to us after entry of a judgment based on the sustaining of a demurrer, we accept as
true the material allegations of plaintiffs‟ pleadings”].)
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petroleum products to contaminate the soil and the groundwater in and around the ATF
site. In 1962, Exxon ceased its operations at ATF and began to “decommission the
facility to prepare it for sale.”
Exxon eventually sold the ATF, which was then subdivided for residential use. In
1972, the Ujima Housing Corporation (Ujima Corporation) and several related entities
constructed a low-income housing complex known as “Ujima Village Apartments”
(Ujima) on a 16-acre parcel of the former ATF site. During construction, Ujima
Corporation and its entities discovered two crude oil reservoir/sumps, oil saturated soils
and petroleum-related debris, which they buried on the site.
The Ujima Corporation and its successors in interest owned and operated Ujima
until the United States Department of Housing and Urban Development (HUD)
foreclosed on the property in 1990. Before the foreclosure became final, HUD developed
a plan to rehabilitate the property and sell it to a private entity. However, the purchaser
withdrew from the sale negotiations after its environmental consultant reported that
methane gas and hydrocarbons in the subsurface presented “„high potential for significant
environmental impairment.‟”
Between 1990 and 1995, HUD and its agents conducted several environmental
investigations at the Ujima site. In 1991, HUD hired an environmental consultant to
prepare a study “estimat[ing the] liability” associated with the “presence, past use or
release of environmentally regulated materials.” The study reported that the site was
contaminated with “volatile organic compounds” (VOCS) in concentrations that
“significantly exceeded the highest suggested action levels . . .” and recommended that
additional investigations be performed to determine the extent of the contamination.
After initially rejecting those recommendations, HUD retained Earth Technology
in 1993 to test the site for contaminants. Although the resulting report identified elevated
concentrations of lead, mercury and other potentially harmful chemicals, it concluded
that the contamination did not present a significant threat to the health or safety of Ujima
residents. The Community Development Commission of the County of Los Angeles
(CDC), however, hired a consultant to review Earth Technology‟s study. In December of
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1993, the consultant issued a report that was highly critical of Earth Technology‟s
methodologies and conclusions.
In or around 1994, the CDC and the Los Angeles County Housing Authority
(collectively the County authorities) entered into negotiations with HUD to purchase
Ujima. After reviewing the prior environmental investigations, the County authorities
expressed concerns about potential “third party civil actions” and demanded that HUD
provide indemnification coverage. HUD agreed to the proposal and sold Ujima to the
Housing Authority for $1.00. The Housing Authority owned and operated Ujima from
1995 until its closure in 2009.
In May of 2005, the County authorities hired Rincon Consultants to conduct
sampling of soil contamination, which revealed high concentrations of hydrocarbon
vapors and VOCs that were consistent with a gasoline release. Rincon‟s report also
revealed that “residents were at significant risk of exposure and cancer.” Shortly
thereafter, a private developer prepared a “Phase I Environmental Site Assessment
Report” that confirmed contamination related to the release of petroleum hydrocarbons.
Based on this report, two different developers decided not to purchase Ujima.
In October of 2006, the County authorities retained Rincon to conduct an overall
evaluation of the site, which concluded that “„the possibility of a chronic health risk
concern at th[e] site warrant[ed] additional study‟” and that “„remediation [wa]s likely
warranted . . . as a preventative measure to reduce possible exposure of VOC to residents
[and] mitigate existing groundwater contamination underlying th[e] property.‟” After the
report was issued, the County authorities requested that the California Regional Water
Quality Control Board (the Water Board) oversee all further investigations at Ujima.
On May 1, 2007, the Housing Authority sent a letter advising all Ujima residents
that it was “considering the possibility” of closing the complex “due to the age and
obsolescence of the property, the substantial economic cost of rehabilitation, and the
significant disruption to the daily lives of residents to remediate environmental
concerns.” The letter stated that if the complex was closed, displaced residents might be
eligible to receive federal relocation assistance payments. The letter emphasized,
4
however, that residents should not move out of the complex and urged them to “continue
to pay [their] monthly rent.” The letter further explained that residents would forfeit their
right relocation assistance if they moved or were evicted before “receiving formal notice
of . . . eligibility . . . .” The letter did not provide any further information about the
“environmental concerns” at the property.
In June of 2007, the Housing Authority sent Exxon a letter requesting
compensation for all costs associated with contamination at the site, including “third-
party claims related thereto.” The letter explained that testing had “identified gasoline
and crude oil contamination in the soil and groundwater,” which was “the direct result of
the past use of the Premises as an oil storage tank farm.” The Housing Authority
informed Exxon that it would be “amenable to . . . having [Exxon] . . . undertake all
appropriate assessment, monitoring, removal and remediation work” under the “purview
and . . . approval of the [Water Board].” The letter also stated that it had received
correspondence from a current Ujima resident that referenced “possible impacts of
„conditions of soil and water‟” and requested that her family “be relocated as soon as
possible for „medical reasons . . . .‟” The Housing Authority advised Exxon that
“[b]ased, in part, on mitigating [this resident‟s] and other prospective third party claims,
[it was] planning for the permanent relocation of all residents of [Ujima].”
In October of 2007, the Water Board met with the Ujima property manager and
Rincon to discuss environmental remediation at Ujima. During the meeting, the Water
Board emphasized the “urgent” need for an investigation that was sufficient to properly
“evaluate the extent of contamination and potential risk to human health.” The property
manager encouraged the Water Board to “establish contact with [Exxon]” and indicated
that it had “conducted a meeting with the tenants and informed them of the current status
and the potential for near future evacuation.”
On November 14, 2007, the Water Board issued a letter ordering Exxon to
“complete environmental investigation, assessment, monitoring and cleanup at [Ujima.]”
The letter explained that, since 1992, only “limited soil, soil vapor, indoor air and
groundwater sampling ha[d] been conducted at the . . . site.” Although the results of this
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“limited sampling” had confirmed contamination “from the historical operations that
occurred at ATF,” the Water Board believed a more “complete environmental assessment
of the contaminants . . . [wa]s required on an expedited basis.” The letter ordered Exxon
to conduct a “thorough investigation of the industrial operations conducted . . . at
[Ujima]” and to prepare a “site-specific human health risk assessment . . . .” After
receiving the order, Exxon retained one of its “prime [environmental] consultant[s],”
Kleinfelder West, to conduct an investigation.
In April of 2008, the County authorities held community meetings for Ujima
residents regarding the future closure of the site, relocation and the pending
environmental remediation. During these meetings, which were attended by
representatives of the County authorities, Exxon and the Water Board, fliers were
distributed reporting that although contamination had been found at the site, the
environmental conditions did not “pose adverse health and safety risks to the occupants.”
On June 9, 2008, the Water Board sent an email to the County authorities and
Exxon indicating that “review of preliminary shallow soil data” suggested that “„there
does not appear to be immediate health concern . . . .‟” Several days later, the County
authorities and Exxon held another “relocation informational meeting” with Ujima
residents and reported that “environmental investigation confirmed that there was no
adverse risk to the health of the tenants.”
In August of 2008, Kleinfelder issued a report concluding that “there was no
adverse risk to human health from the contaminated subsurface soils and groundwater at
or around [Ujima].” The report failed, however, to “properly evaluate, test address, raise
and/or consider the actual health risk posed to [residents and neighbors of Ujima
residents] as a result of the exposure to chemicals . . . .”
In December of 2008, the County Supervisors approved a motion to close Ujima
as soon as possible; on April 14, 2009, the Supervisors issued a “declaration of blight”
regarding the complex and directed the Housing Authority to evict remaining tenants.
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B. Prior Versions of Plaintiffs’ Complaints and Trial Court’s “Cottle” Order
In April of 2010, hundreds of former Ujima residents filed Alexander v. Exxon
Mobil (Superior Court Case No. BC435640), which alleged numerous claims predicated
on exposure to contamination at the housing complex. In April of 2011, a second set of
plaintiffs, which was comprised of other former Ujima residents and individuals residing
in nearby residential neighborhoods, filed a similar suit captioned Davis v. Exxon Mobil
(Case No. BC460123). The trial court consolidated the matters and, on August 8, 2011,
plaintiffs filed a “Consolidated Third Amended Complaint” (TAC). Over 700 plaintiffs
joined in the TAC, which named 15 defendants including, Exxon, the County of Los
Angeles, the CDC, the Housing Authority, Earth Technology, Ujima Corporation and
numerous other private entities (we refer collectively to the government defendants as
“County defendants” and the private defendants as “non-government defendants”). The
TAC asserted a wide range of claims seeking compensation for injuries to both person
and property.
The TAC included a subsection describing when plaintiffs allegedly discovered
their claims. According to the complaint, plaintiffs had no reason to suspect the
contamination at Ujima was harmful to their health until the Housing Authority issued its
declaration of blight in May of 2009. Plaintiffs alleged that, prior to that time,
respondents had repeatedly told Ujima residents that the contamination was not harmful.
After seeing the declaration of blight, however, several individuals retained attorney
Thomas Wire to investigate the matter further. Wire conducted an analysis of the “true
condition of the contamination” and discovered that the “soil and groundwater . . . ha[d]
continually posed a significant risk to human health and safety.” The complaint further
asserted that other groups of plaintiffs did not learn of the declaration of blight or the true
dangers of the environmental contamination until October of 2009 and April of 2011.
Defendants filed a demurrer to the TAC arguing, in part, that plaintiffs‟ claims
were untimely because the allegations in the complaint demonstrated, as a matter of law,
that Ujima residents should have suspected that the contamination was capable of
harming them many years before they filed suit. The County defendants separately
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argued that a demurrer should be sustained in their favor because plaintiffs had failed to
file a government claim letter within the time periods set forth in Government Code
section 911.2.
At the demurrer hearing, the trial court informed the parties that although some of
the plaintiffs might be time-barred, it needed more information to assess the issue:
“There is a real question mark with respect to who should be a plaintiff and who should
not be a plaintiff. Is there a statute of limitation problem? If so, as to whom. That‟s a
very factual-driven question. And I appreciate that there are a lot of plaintiffs, but for
each of these plaintiffs, we‟re going to have to . . . figure out how each person
learned or should have learned as to what‟s going on. I appreciate that there was a letter
or a notice that went out around [May of] 2007 . . . . I think it said there is no need to
leave . . . it reasonably could be interpreted of saying there is no danger, if you will. But
in 2009 when the area was declared [blight] at least, in my mind, that to me would be
notice; that puts a person of inquiry. So there are some real statute of limitations
questions here . . . .”
The court elected to “sustain all the demurrers with leave to amend,” explaining
2
that plaintiffs needed to provide “a much better drawn complaint.” The court further
explained that “with respect to the statute of limitations arguments[,]” it might enter an
order “pursuant to . . . Cottle versus Superior Court [(1992) 3 Cal.App.4th 1367(Cottle)]” requiring each plaintiff to provide “an offer of proof as to . . . [w]hat the person
learned and when. Who they learned it from. Did they read something? Were they told
something in detail? What did they hear? You known and then what did they do after
that [¶] . . . [¶] that‟s what a Cottle order is all about.”
After further discussion, the court ordered plaintiffs‟ counsel to “submit offers of
proof [with the next amended complaint] regarding each and every plaintiff . . .”
showing, among other things: “where they lived during the relevant time period, . . . the
exact factual circumstances in which each person learned about the contamination,
2 The trial court sustained the demurrer without leave to amend as to various causes
of action and categories of plaintiffs that are not relevant to this appeal.
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whether that person has experienced any physical or psychological injury. If they
haven‟t, what medical evidence corroborates their fear [of developing cancer].” The
court then entered a minute order sustaining the demurrers to the TAC with leave to
amend and ordering each plaintiff to submit a “Cottle declaration” containing each of the
categories of information the court had referenced during the hearing.3
C. Fourth Amended Complaint
1. Summary of the Fourth Amended Complaint
On January 31, 2012, plaintiffs filed the operative fourth amended complaint,
which incorporated over 800 Cottle declarations that were submitted as appendices. The
3 In Cottle, supra, 3 Cal.App.4th 1367, a trial court presiding over a complex toxic
tort action entered a case management order requiring each plaintiff to submit a statement
providing prima facie evidence of the nature of plaintiff‟s injuries and the identity of each
medical expert who would support the personal injury claim. (Id. at p. 1381.) Although
the court gave plaintiffs multiple opportunities to comply with the order, none of them
were able to provide any medical evidence that their personal injuries had been caused by
the contamination. Immediately before trial, the court entered an order excluding any
evidence of plaintiffs‟ physical injuries. The appellate court upheld the use of these
procedures, explaining that “in a complex litigation case . . . a court may order the
exclusion of evidence if the plaintiffs are unable to establish a prima facie claim prior to
the start of trial.” (Id. at p. 1381.) The court further stated, however, that “the timing of
the order [wa]s crucial to its legitimacy,” emphasizing that if “the order [had] been made
earlier in the proceedings, we would be more inclined to hold that the order was an abuse
of the court's discretion.” (Id. at p. 1380.)
Although other courts have approved Cottle’s holding that “a trial court may use
its inherent powers to manage complex litigation by ordering the exclusion of evidence if
the plaintiff is unable to establish a prima facie case prior to the start of trial” (Lockheed
Martin Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 211-212 [disapproved
on other grounds in State v. Allstate (2009) 45 Cal.4th 1008, 1036 fn. 11]), we are not
aware of any authority that has approved the use of a Cottle-type procedure at the
demurrer stage. (See e.g., Hernandez v. Superior Court (2003) 112 Cal.App.4th 285,
300-301 [explaining that “the Cottle court [did not] have before it an order requiring the
plaintiffs to establish a prima facie case of causation before discovery was complete and
before a trial date had been set”].) While we have significant concerns about a procedure
requiring detailed sworn affidavits at the pleading stage, plaintiffs have not raised any
issue regarding the trial court‟s “Cottle” order. We will therefore proceed as if the order
were valid.
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complaint included an amended section explaining when the plaintiffs had discovered
their claims. Plaintiffs alleged that, in or around September or October of 2008, plaintiff
Eric Smith informed his former attorney, Tom Wire, that “individuals residing at [Ujima]
were suffering from sickness and disease, and dying. [Smith] did not know, or suspect,
the cause of these injuries.” Based on his conversations with Smith, Wire began
researching the “site history,” but was “unable to discover evidence which suggested that
[Ujima] posed a risk to human health and safety. Nevertheless, based on his research,
[Wire] began to investigate whether the injuries at [Ujima] were caused by contamination
resulting from the historic operations of the ATF, or from other causes.”
In October of 2008, Wire allegedly met with a group of former Ujima residents
and “related his suspicions that [Ujima] may be contaminated, and that such
contamination may pose a serious risk to human health and safety. This was the first
point at which these residents had been informed that [Ujima] may pose a serious risk to
human health and safety.” The complaint further asserted that, following the meeting,
“suspicions regarding the potential threat to human health and safety at [Ujima] . . . began
to spread, beginning in or around October, 2008 and continuing until the present, by word
of mouth. As word of mouth spread, plaintiffs were told to contact Mr. Wire about their
rights regarding [Ujima].” Wire allegedly held several meetings between October 2008
through 2011 informing more and more residents of his suspicions.
The complaint also alleged that each plaintiff‟s incorporated Cottle declaration
“identif[ied] the time and manner in which each Plaintiff began to actually suspect that
the contamination posed a serious risk to human health and safety at [Ujima Village] or
the [surrounding community].” Most of the plaintiffs‟ declarations asserted they had
discovered the contamination might be harmful to their health either through speaking
with Tom Wire in late 2008, or by speaking to a friend or family member who had
learned of the harmful contamination at some point between 2009 and 2011.
Although the complaint did not describe what information had caused Wire to
suspect the contamination might be harmful (or when, specifically, he obtained the
information), paragraph 24 of the complaint alleged, “[e]xpert scientific opinion indicates
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that contamination at [Ujima] has posed, and continues to pose, a risk to human health
and safety.” It further alleged that many plaintiffs had experienced “adverse effects”
“consistent with the toxicities, of the chemicals present at[Ujima]” and that, “to a
reasonable scientific certainty, it is more likely than not that some people who lived at
[Ujima] will contract cancer and experience other non-cancer adverse effects as a direct
result of their exposure to toxic substances . . .”
As with the prior versions of the complaint, the fourth amended complaint asserted
a wide range of personal injury and property claims against the County defendants,
Exxon and numerous other non-government defendants. The claims included, in part,
negligence, trespass, nuisance, public nuisance, breach of the warranty of habitability,
statutory violations and wrongful death. In addition, several plaintiffs who lived in an
adjacent residential neighborhood asserted claims for exposure to contamination in their
community that had allegedly migrated from Ujima.
2. Exxon and County defendants’ demurrers to the fourth amended complaint
The County defendants and Exxon filed demurrers to the fourth amended
complaint arguing, among other things, that plaintiffs‟ allegations demonstrated that
every claim set forth in the complaint was precluded by the two-year statute of limitations
set forth in Code of Civil Procedure section 340.8, which applies to civil actions “based
upon exposure to a hazardous material or toxic substances.” (Code of Civil Proc.,
§ 340.8.)
County defendants contended that the following statements in the complaint
showed, as a matter of law, that every plaintiff knew or should have known of their
claims more than two years before the first suit was first filed in April of 2010: (1) it was
well-known that Ujima was located a on a former oil tank farm; (2) the property was
subjected to repeated environmental testing between 1992 and its closure in 2009; (3)
defendants held several meetings in 2007 to discuss the reasons for the proposed closure
of Ujima; (4) on May 1, 2007, the Housing Authority sent a letter to Ujima residents that
referenced “environmental concerns”; (5) in May of 2007, an Ujima resident expressed
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health concerns to the Housing Authority regarding the contamination. According to
defendants, these facts, “taken alone or in concert, unequivocally demonstrate[d] that
Plaintiffs had been apprised of the environmental conditions at the site, and were on
inquiry notice of any potential claims . . . years prior to the . . . claims bar date.” The
County defendants further argued that these same allegations demonstrated plaintiffs had
failed to file their government claims letter within the time periods set forth in
Government Code section 911.2.4
Exxon‟s demurrer presented similar arguments, asserting that plaintiffs‟ allegation
that they “had no idea about any of the environmental concerns at [Ujima] until . . .
[attorney] Wire began to tell them in October of 2008 is contradicted by the [complaint‟s]
allegations and exhibits.” Exxon contended that, based on the numerous environmental
studies that had been conducted at the site between 1992 and 2007, it was “inconceivable
that Plaintiffs could have lived at [Ujima] and not realized that the testing . . . occurred.”
Exxon also argued that any resident who had received a copy of the May 1, 2007 letter or
attended any meeting referencing environmental remediation was, at that point,
necessarily on notice of their claims.
In support of their demurrer, the County defendants prepared several exhibits
listing plaintiffs whose Cottle declarations admitted they had either received the Housing
Authority letter dated May 1, 2007 or attended community meetings regarding the
proposed closure of Ujima. Exxon provided a similar exhibit listing plaintiffs whose
Cottle declarations demonstrated one or more of the following: (1) the plaintiff had
received the May 1, 2007 Housing Authority letter; (2) the plaintiff admitted being aware
of the contamination in 2008, but failed to file a claim until 2011; (3) the plaintiff had
admitted attending meetings regarding the relocation in 2007 or 2008.
4 Government Code sections 911, et seq., require that, before suing a public entity, a
plaintiff must present a government claim letter to the appropriate public entity within the
time limits set forth in section 911.2.
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3. Hearing on the demurrers to the fourth amended complaint
At the demurrer hearing, the County defendants argued that “the plethora of
concessions and admissions [in the complaint] and [the incorporated exhibits] makes it
such that there‟s no way that any plaintiff wouldn‟t know that there was contamination,”
which was sufficient to trigger the statute of limitations. The trial court asked counsel to
clarify whether he was arguing that, regardless of whether a plaintiff was told “there‟s no
risk [from the contamination], the fact that . . . [contamination] is being discussed suffices
to put them on notice.” Counsel confirmed that was the County defendants‟ position.
Plaintiffs‟ counsel, however, argued that any notices plaintiffs had received
regarding the contamination were not sufficient to trigger the statute of limitations for
their personal injury claims because each notice had been accompanied by information
indicating that the pollutants posed no risk to human health or safety health. Counsel
contended that “When you‟re told there‟s nothing wrong and you reasonably believe it,
you‟re not on notice.” The court, however, rejected the argument, explaining: “When
you read investigation and cleanup on the [letter or meeting] agenda and the goal is to
provide an opportunity for community members to learn about the investigation of soil
and ground water, to talk with agencies and people involved of the environmental
investigation . . . I think it‟s putting them on notice.”
The court thereafter sustained the demurrers without leave to amend as to
approximately 100 plaintiffs whose Cottle declarations admitted they had received some
form of notice of the contamination more than two years before filing their claims. The
court sustained the remainder of the demurrers, which challenged the claims of hundreds
of other plaintiffs on alternative grounds, with leave to file a fifth amended complaint.
On May 8, 2012, the court issued a written order of dismissal stating, in part: “The
Plaintiffs identified in Exhibit E[5] hereto are hereby dismissed with prejudice as to all
Defendants because their declarations submitted as Appendices to the Consolidated
5 The names of the plaintiffs listed in Exhibit E of the order match the names listed
in the exhibits that Exxon and the County defendants had provided to the court in support
of their demurrers.
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Fourth Amended Complaint show that their Claims are barred by applicable statute of
limitations.” Fifty-eight plaintiffs listed in Exhibit E to the trial court‟s written order
filed a timely appeal. (See Safeco Insurance Co. v. Tholen (1981) 117 Cal.App.3d 685,
691, fn. 2 [order of dismissal predicated on prior order sustaining demurrer without leave
to amend as to three of six defendants constituted appealable order]; Sisemore v. Master
Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396 [although “[a]n order sustaining a
demurrer without leave to amend is not appealable . . . , an appeal is proper . . . after entry
of a dismissal on such an order”]; Code Civ. Proc., §§ 581d, 904.1, subd. (a)(1).)
DISCUSSION
The 58 appellants argue that the trial court erred in concluding that their personal
injury claims against Exxon and the other non-government defendants are precluded by
the applicable statute of limitations based on their admission that they received notice of
the environmental contamination more than two years before filing suit. A subset of 15
appellants additionally contend that the trial court erred in dismissing their claims against
the County defendants for failing to file a government claim letter within the time periods
set forth in Government Code section 911.2.
A. The Trial Court Erred in Dismissing Appellants’ Personal Injury Claims
Asserted Against Exxon and the Other Non-Government Defendants
With the exception of three appellants (whose claims we discuss in a separate
section), each appellant submitted a Cottle declaration admitting that they either received
a letter from the Housing Authority dated May 1, 2007 referencing “environmental
concerns” at Ujima, or attended a community meeting in 2007 regarding the possible
closure of Ujima. The trial court concluded these admissions showed appellants knew (or
should have known) of the environmental contamination in 2007, and that, as a matter of
law, such knowledge was sufficient to trigger their statute of limitations period under
California‟s “discovery rule.” Appellants argue, however, that whether the notices they
14
received in 2007 were sufficient to put them on inquiry notice of their personal injury
claims is a question of fact that may not be resolved on demurrer.6
1. Standard of review
“ We review de novo a trial court‟s sustaining of a demurrer, exercising our
independent judgment as to whether the complaint alleges sufficient facts to state a cause
of action. [Citation.] We assume the truth of properly pleaded allegations in the
complaint and give the complaint a reasonable interpretation, reading it as a whole and
with all its parts in their context.” (Van De Kamps Coalition v. Board of Trustees of Los
Angeles Community College Dist. (2012) 206 Cal.App.4th 1036, 1043.) Our
consideration of the facts alleged includes “those evidentiary facts found in recitals of
exhibits attached to [the] complaint.” (Satten v. Webb (2002) 99 Cal.App.4th 365, 375.)
“We also consider matters which may be judicially noticed.” (Serrano v. Priest (1971) 5
Cal.3d 584, 591; see Code Civ. Proc., § 430.30, subd. (a) [use of judicial notice with
demurrer].)
2. Summary of applicable legal principles
“A complaint disclosing on its face that the limitations period has expired in
connection with one or more counts is subject to demurrer. [Citation.]” (Fuller v. First
Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 962, as modified June 24, 2013 at
217 Cal.App.4th 336b (Fuller).) “The limitations period . . . runs from the moment a
claim accrues. [Citations.] Traditionally at common law, a „cause of action accrues
“when [it] is complete with all of its elements” – those elements being wrongdoing, harm,
and causation.‟ [Citation.] This is the „last element‟ accrual rule: ordinarily, the statute
of limitations runs from „the occurrence of the last element essential to the cause of
action.‟ [Citations.]” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185,
1192.)
6 Although the fourth amended complaint asserts a wide range of claims against the
government defendants for injuries to both person and property, appellants‟ brief focuses
exclusively on their “bodily injury claims.” Accordingly, our analysis is limited to
appellants‟ personal injury claims and we deem all other types of claims to be abandoned.
15
“An important exception to the general rule of accrual is the „discovery rule[.]‟”
(Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (Fox).) “„A cause of
action under this discovery rule accrues when “„plaintiff either (1) actually discovered his
injury and its negligent cause or (2) could have discovered injury and cause through the
exercise of reasonable diligence [italics added].‟” [Citation.] The limitations period
begins once the plaintiff has notice or information of circumstances to put a reasonable
person on inquiry. [Citation.] Subjective suspicion is not required. If a person becomes
aware of facts which would make a reasonably prudent person suspicious, he or she has a
duty to investigate further and is charged with knowledge of matters which would have
been revealed by such an investigation. [Citation.]‟” (McCoy v. Gustafson (2009) 180
Cal.App.4th 56, 108.)
Thus, a two-part analysis is used to assess when a claim has accrued under the
discovery rule. The initial step focuses on whether the plaintiff possessed information
that would cause a reasonable person to inquire into the cause of his injuries. Under
California law, this inquiry duty arises when the plaintiff becomes aware of facts that
would cause a reasonably prudent person to suspect his injuries were the result of
wrongdoing. (Fox, supra, 35 Cal.4th at p. 808 [“to employ the discovery rule to delay
accrual of a cause of action, a potential plaintiff who suspects that an injury has been
wrongfully caused must conduct a reasonable investigation of all potential causes”].) If
the plaintiff was in possession of such facts, thereby triggering his duty to investigate, it
must next be determined whether “such an investigation would have disclosed a factual
basis for a cause of action[.] [T]he statute of limitations begins to run on that cause of
action when the investigation would have brought such information to light.” (Fox,
supra, 35 Cal.4th at pp. 808-809.)
“In order to rely on the discovery rule for delayed accrual of a cause of action, „[a]
plaintiff whose complaint shows on its face that his claim would be barred without the
benefit of the discovery rule must specifically plead facts to show (1) the time and
manner of discovery and (2) the inability to have made earlier discovery despite
reasonable diligence.‟ [Citation.]” (Fox, supra, 35 Cal.4th at p. 808.)
16
“When a plaintiff reasonably should have discovered facts for purposes of the
accrual of a case of action or application of the delayed discovery rule is generally a
question of fact, properly decided as a matter of law only if the evidence (or, in this case,
the allegations in the complaint and facts properly subject to judicial notice) can support
only one reasonable conclusion.” (Broberg v. Guardian Life Ins. Co. of America
(2009) 171 Cal.App.4th 912, 921 (Broberg); see also Czajkowski v. Haskell & White
(2012) 208 Cal.App.4th 166, 175-176 [“[T]he question of when „a plaintiff reasonably
should have discovered facts for purposes of the accrual of a case of action or application
of the delayed discovery rule‟ [may] be decided as a matter of law‟” only “if the
undisputed facts do not leave any room for reasonable differences of opinion”].)
3. The trial court erred in ruling that, as a matter of law, appellants’ duty to
investigate their personal injury claims arose when they received notice of
the environmental contamination in 2007
The parties do not dispute several aspects of the statute of limitation question
presented here. First, the parties agree that appellants‟ personal injury claims are
governed by Code of Civil Procedure section 340.8, which states in relevant part: “in any
civil action for injury or illness based upon exposure to a hazardous material or toxic
substance, the time for commencement of the action shall be no later than either two
years from the date of injury, or two years after the plaintiff becomes aware of, or
reasonably should have become aware of, (1) an injury, (2) the physical cause of the
injury, and (3) sufficient facts to put a reasonable person on inquiry notice that the injury
was caused or contributed to by the wrongful act of another, whichever occurs later.”
(Code Civ. Proc., § 340.8.) The parties further agree that the language of section 340.8 is
not intended to create a special discovery rule of accrual for claims predicated on
exposure to hazardous substances, but rather to clarify that California‟s traditional
discovery rule applies to such claims.7 (See Historical and Statutory Notes, 13C West‟s
7 Neither party has addressed the applicability of section 309 of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. §
9601 et seq.), which states: “In the case of any action brought under State law for
17
Ann. Code of Civ. Proc. (2006 ed.) § 340.8, p. 248 [Legislature‟s intent in passing
§ 340.8 was to “codify . . . [prior] rulings” that had applied California‟s traditional
discovery rule in hazardous exposure cases].)
The parties also do not dispute that: (1) without the benefit of the discovery rule,
appellants‟ personal injury claims would be time barred; and (2) the operative complaint
(which incorporates all the Cottle declarations) pleads sufficient facts showing the time
and manner of each appellants‟ alleged discovery date. They disagree, however, as to
whether the pleaded facts demonstrate appellants could have reasonably discovered their
claims in 2007, which was more than two years before the first suit was filed.
personal injury, or property damages, which are caused or contributed to by exposure to
any hazardous substance, or pollutant or contaminant, released into the environment from
a facility, if the applicable limitations period for such action (as specified in the State
statute of limitations or under common law) provides a commencement date which is
earlier than the federally required commencement date, such period shall commence at
the federally required commencement date in lieu of the date specified in such State
statute.” (42 U.S.C. § 9658, subd. (a)(1).) Section 309, which appears at 42 U.S.C.
§ 9658, defines the term “federally required commencement date” as the “date the
plaintiff knew (or reasonably should have known) that the personal injury or property
damages . . . were caused or contributed to by the hazardous substance or pollutant or
contaminant concerned.” (Id. at § 9658, subd. (b)(4)(A).) “The effect of this provision is
to ensure that if a state statute of limitations provides a commencement date for claims of
personal injury resulting from release of contaminants that is earlier than the
commencement date defined in [section] 9658, then plaintiffs benefit from the more
generous commencement date.” (O’Connor v. Boeing North American, Inc. (9th Cir.
2002) 311 F.3d 1139, 1146 (O’Connor); see also Angeles Chemical Co. v. Spencer &
Jones (1996) 44 Cal.App.4th 112, 123.) The Ninth Circuit has previously held that
section 9658‟s federal commencement date applies to California state law claims
predicated on exposure to toxic substances. (O’Connor, supra, 311 F.3d at p. 1149.)
For the purposes of this appeal, however, it is unnecessary to determine whether
plaintiffs‟ claims are subject to the federal commencement rule. The text of section 9658
makes clear that the federal rule applies only if it would provide the plaintiff a more
generous accrual date than he or she would otherwise enjoy under state law. Because we
conclude appellants‟ claims for personal injuries are not, as a matter of law, precluded
under the discovery rule set forth in section 340.8, it is immaterial whether section 9658
would have provided them a more generous commencement date.
18
Respondents argue that, as a matter of law, each appellant had a duty to begin
investigating his or her claims after receiving notice of the environmental contamination
in 2007, and that such an investigation would have disclosed a factual basis for the claims
outside the applicable limitations period. Appellants, on the other hand, concede that if
they had begun an investigation in 2007, they would have discovered their claims more
than two years before they filed suit.8 They contend, however, that there is a question of
fact as to whether the information they possessed regarding the contamination in 2007
would have caused a reasonably prudent person to suspect that the contamination posed a
risk to their health, thereby triggering their duty to investigate.
a. Summary of notices appellants received regarding contamination
at Ujima
Before assessing whether the notices appellants received in 2007 were sufficient to
trigger their duty to investigate, we first summarize the nature of the information that was
provided in those notices. A significant majority of appellants (48) provided Cottle
declarations admitting that, on or around May 1, 2007, they received a letter from the
Housing Authority referencing “environmental concerns” at Ujima. The first sentence of
the letter notified residents that “the [Housing Authority] [wa]s considering the
possibility [of closing Ujima] . . . due to the age and obsolescence of the property, the
substantial economic cost of rehabilitation, and the significant disruption to the daily
lives of residents to remediate environmental concerns at . . . the housing complex.” No
other information was provided regarding the unspecified “environmental concerns” or
the reasons for Ujima‟s possible closure.
8 The allegations in the fourth amended complaint impliedly admit that appellants‟
discovered a factual basis for their claims shortly after beginning an investigation. The
complaint states that, in October of 2008, plaintiffs‟ attorney, Thomas Wire, was notified
of the injuries at Ujima in October of 2008 and, within the same month, conducted an
investigation that resulted in producing a factual basis for appellants‟ claims. Although
the complaint does not identify what information Wire discovered during his
investigation, the allegations nonetheless demonstrate that, once started, the investigation,
quickly provided a basis for the claims.
19
The remainder of the letter discussed federal “relocation assistance” that might be
made available to each resident in the event of closure. The letter, which included a
pamphlet about relocation assistance, repeatedly warned residents that they should not
move from the premises until they received an actual notice indicating that they were
eligible for relocation assistance. In multiple parts of the letter, residents were told that if
they moved or signed a new lease before receiving such a notice, they would risk
forfeiting their right to federal assistance.
Seven other appellants submitted Cottle declarations stating that although they did
not receive the May 2007 letter, they had attended a “community meeting” more than two
years before filing suit, in April of 2007. They also admitted having attended one or
more community meetings held on April 10, April 14 or June 13, 2008, each of which
occurred within the two-year limitations period. Neither the Cottle declarations nor the
fourth amended complaint contain any information explaining what was discussed at the
April 2007 community meeting. The pleadings do, however, allege that, during the April
2008 meetings, respondents distributed flyers to residents informing them that “HUD
found remaining gasoline and crude oil in [the] soil” and that “recent study with new
technology confirms soil and ground water contamination.” The flyer, which is included
as an exhibit to the complaint, also stated that the contamination did “not pose adverse
health and safety risks to the occupants” and that “air samples collected inside and
outside of apartments cause no violation of state or federal standards.” The Cottle
declarations indicate that similar representations were made during the June 13, 2008
community meeting, at which time residents were told the contamination “was not
harmful [to residents] and it was not the reason for the relocation.”
At the demurrer hearing, the trial court ruled that although none of the pleadings
or declarations described what occurred at the “unspecified [April] 2007 meetings,” it
could be fairly inferred that residents received the same information that had been
provided at the subsequent meetings in 2008. The court explained that because its Cottle
order had instructed plaintiffs to provide information about when they learned of
environmental concerns at Ujima, plaintiffs would have had no reason to include
20
statements about the April 2007 community meeting unless they believed the topic of
contamination was discussed at that time. We assume, for the purposes of this appeal,
that the court‟s inference was proper.9
The respondents do not dispute that, to the extent contamination was discussed in
April of 2007, residents were specifically informed that the contaminants posed no risk to
their health. Indeed, respondents maintain that Ujima residents have always been told
that the contamination poses no risk to human health because, in their view, it has never
posed any such risk.
In sum, based on the parties‟ admissions and the trial court‟s findings, the
appellants‟ complaint and their incorporated Cottle declarations allege that they received
one of two forms of notice regarding the contamination more than two years before filing
their claims: (1) a letter informing residents that although Ujima might be closed due to
economic and environmental concerns, they should remain in their homes until they
received a notice regarding eligibility for federal relocation assistance; or (2) statements
at a community meeting indicating that although contamination had been found on the
premises, it presented no risk to human health.
b. The notices of environmental contamination were not sufficient
to place appellants on notice of their personal injury claims
The trial court concluded that, as a matter of law, any plaintiff who received either
form of notice should have suspected that the contamination posed a risk to his or her
health, thereby triggering a duty to investigate. The appellants, however, contend that,
given the limited information that was provided in the notices, a reasonable trier of fact
might conclude they had no reason to suspect the contamination was capable of causing
them personal injury.
We agree with appellants that the allegations set forth in the complaint and the
Cottle declarations do not lead to a single, “reasonable conclusion” as to whether the
9 The appellants argue that, for the purposes of demurrer, it was improper for the
court to infer that contamination was discussed at the 2007 community meeting. We
need not address that contention because it has no bearing on the outcome of this appeal.
21
2007 notices should have caused them to suspect the contamination posed a risk to their
health. (Broberg, supra, 171 Cal.App.4th at p. 922.) The May 1, 2007 letter merely
references a forthcoming environmental remediation as one of several factors underlying
the Housing Authority‟s decision to consider closing Ujima. It does not explain the
nature of these unspecified “environmental concerns” or provide any additional facts
about the issue. Other portions of the letter warned residents that they might lose their
rights to federal relocation assistance if they moved from Ujima before receiving a formal
notice of eligibility. Indeed, the letter states in bold, underlined print that residents
should not move from the premises until receiving such a notice. A trier of fact might
legitimately infer that a letter from a government entity telling residents to stay in their
homes until further notice was not, standing alone, sufficient to raise a suspicion that
unspecified “environmental concerns” posed a risk to their health or safety. (See Call v.
Kezirian (1982) 135 Cal.App.3d 189, 199 [“The reasonableness of a delayed discovery
may be a question of law [only if the] . . . allegations of the complaint . . . are susceptible
to only one legitimate inference”].)
Similarly, more than one legitimate inference can be drawn from the fact that
appellants‟ attended a community meeting in 2007 at which they were notified of the
contamination. Respondents do not dispute that the speakers at these meetings, which
included representatives from state housing authorities, told residents the contamination
posed no risk to their health. We cannot say, as a matter of law, that individuals who
received such information should have nonetheless suspected that the contaminants were
capable of causing personal injuries.
Respondents, however, contend that two prior decisions support their contention
that appellants had a duty to investigate their personal injury claims the moment they
received information suggesting that Ujima might be contaminated. Both cases address
the timeliness of toxic contamination claims alleging damage to real property. In the first
case, CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525 (CAMSI), the
plaintiff filed claims alleging that Hunter, a former lessee, had contaminated a portion of
plaintiff‟s property with toxic volatile organic chemicals (VOCs), and trichloroethene
22
(TCE). The complaint alleged that, several months after plaintiff acquired the property in
1984, a regional water board issued an order requiring the former owners to clean a non-
toxic agent from the site and “„mandated investigation of the groundwater and soil of the
Subject Property, partly because TCE . . . and other VOCs had been found thereon and
thereunder.‟” (Id. at pp. 1531-1532.) The order did not, however, indicate that the TCE
or VOCs posed a health risk or require any entity to conduct a cleanup of those
substances. In June of 1987, the water board issued a second notice informing plaintiff
that subsequent testing had revealed that a cleanup of TCE and VOCs was also required
at the site. In March of 1988, the water board issued a final order requiring TCE and
VOCs cleanup that named Hunter as a primarily responsible party. Shortly thereafter,
plaintiffs filed its complaint against Hunter.
Defendants demurred to the complaint, arguing that the pleaded facts
demonstrated the action was barred under “the three-year [statute of] limitation period for
claims for injury to real property.” (CAMSI, supra, 230 Cal.App.3d at p. 1533.)
Defendants contended that plaintiffs‟ claims had accrued in July of 1985, when the water
board issued its initial notice announcing that further investigation was necessary due to
the presence of TCE and VOCs. Plaintiff, however, argued that that its claims had
accrued no earlier than June of 1987, when the water board issued its tentative order
finding that the property was in fact contaminated with VOCs and TCE at levels that
required environmental remediation. Alternatively, the plaintiff argued that it could
amend its complaint to allege that the 1985 order had merely “„mentioned the presence of
unspecified amounts of TCE and other VOCs . . . and [that the water board] had no
evidence that the levels of TCE and other VOCs . . . threatened the property or the public
health, or that these contaminants existed at levels which required the [board] to act.‟”
(Id. at p. 1539.)
The appellate court ruled that the action was barred under the discovery rule
because the plaintiffs‟ allegations demonstrated, as a matter of law, that they had inquiry
notice of their property claims no later than 1985: “Given [the water board‟s] notice of
the presence of TCE or other VOCs . . . on the property, the owner could properly be
23
expected, in the exercise of reasonable diligence, to conduct an adequate investigation of
. . . of its property. . . . [¶] . . . [A]s of July 1985 [plaintiff] possessed information
sufficient at least to place it on notice of serious contamination problems on the parcel it
owned, and from which, by exercise of reasonable diligence it could have learned the full
extent of the problems and the nature of their source.” (CAMSI, supra, 230 Cal.App.3d at
pp. 1537-1538.) The court also ruled that, even if it were to accept plaintiff‟s proposed
amendments to the complaint, the amended “allegations . . . would not . . . suffice to
invoke the discovery rule. . . . [T]hat the [water] board so much as „mentioned the
presence of unspecified amounts‟ of VOCs precluded any possible assertion that
[plaintiff] . . . would have been unable, by reasonable diligence, to have discovered the
necessary facts at that time.” (Id. at p. 1541.)
The second case respondents cite, Mangini v. Aerojet-General Corp. (1991) 230
Cal.App.3d 1125 (Mangini), involved similar facts. Plaintiffs filed a lawsuit alleging the
defendant had contaminated their property with hazardous waste. The complaint asserted
that, between 1960 and 1970, defendant had leased the property from the former owner
pursuant to a recorded lease containing the following language: “„Lessors acknowledge
that they are aware that certain activities of Lessee on the leased premises may be of a
hazardous nature . . . .‟” (Id. at p. 1140.) Four years after plaintiffs acquired the property
in 1975, the Department of Justice informed them that it was investigating defendant‟s
hazardous waste disposal practices in nearby areas. In April of 1984, plaintiffs received a
letter from defendant asking permission to inspect their property. For the next two years,
the defendant discussed with plaintiffs its plans to inspect and test the property, but
refused to disclose why the testing was necessary or what activities it had conducted
while leasing the property. In April 1987, an air pollution control district informed
plaintiffs their property was contaminated with hazardous substances. In mid-1987,
plaintiffs retained an attorney who obtained federal records “disclos[ing] for the first time
to [plaintiffs] the nature of [defendant‟s] activities while it had leased the property,”
which included the “dispos[al] of . . . rocket fuel and other chemical contaminants . . . ”
(Id. at p. 1152.) Shortly thereafter, plaintiffs filed an action seeking compensation for
24
damages to their real property. Defendant demurred, arguing that plaintiffs‟ claims were
barred by the applicable statute of limitations. The trial court sustained the demurrer.
The appellate court affirmed, explaining that the allegations in the complaint
showed that, as of 1984, plaintiffs “knew the following facts: (1) the recorded lease gave
notice that defendant had engaged in activities of a potentially hazardous nature on their
land [citations]; (2) the Department of Justice investigated defendant‟s practices
regarding disposal of hazardous waste in the area; and (3) defendant asked plaintiffs for
permission to inspect their property.” (Mangini, supra, 230 Cal.App.3d at p. 1152.) The
court concluded that, considered together, this information was sufficient to cause
plaintiffs to suspect defendant may have contaminated the property: “Whether any of
these three facts in isolation would be sufficient to impart notice is open to dispute.
However, the combination of these facts together establish as a matter of law that, when
defendant contacted plaintiffs in 1984, plaintiffs had sufficient information to put them
on notice of the possibility that defendant had dumped hazardous waste on their land.”
(Id. at pp. 1152-1153.)
Respondents contend that CAMSI and Mangini demonstrate that, as a matter of
law, appellants‟ claims accrued when they first received notified of contamination at
Ujima. Respondents, however, overlook a critical distinction between the nature of the
claims at issue in those cases and the claims at issue here. In CAMSI and Mangini, the
plaintiffs alleged damage to real property based on the presence of environmental
contamination. The “injury” in both cases was the existence of the pollutants, which
devalued their property. The courts, in turn, ruled that plaintiffs‟ claims necessarily
accrued when they were provided information indicating that that their property might be
contaminated with toxic materials.
In contrast, appellants in this case do not seek redress for damage to real property
caused by the presence of contamination at Ujima; rather, they seek compensation for
personal injuries that were allegedly caused by exposure to that contamination.
Respondents have identified no portion of the complaint suggesting that, as of 2007,
appellants possessed information that should have caused them to suspect that exposure
25
to the type of contamination present at Ujima was capable of causing them physical
injury. Thus, while CAMSI and Mangini suggest appellants had reason to suspect the
presence of contamination based on the notices they received in 2007, the cases provide
no basis for concluding that, as a matter of law, the 2007 notices should have also caused
them to suspect the contaminants posed a risk to their health.
Moreover, the nature of the information the plaintiffs possessed in CAMSI or
Mangini is qualitatively different than the information appellants received here. In both
of those cases, plaintiffs were told that their property might be contaminated with toxic
substances, which was the very same injury for which they later sought redress. In this
case, however, the 2007 notices did not inform appellants that exposure to the
contamination might be harmful to their health; indeed, the notices contained additional
information suggesting just the opposite. Had appellants been notified in 2007 that the
contamination could potentially pose a risk to their health, or that authorities were still
investigating that possibility, this case would present a closer question.
The only case respondents discuss in their briefs that addresses a toxic tort claim
involving personal injuries is Slovensky v. Friedman (2006) 142 Cal.App.4th 1518(Slovensky).) However, the plaintiff in Slovensky specifically admitted that, several years
before filing her claim, she was notified that the toxic substance (mold) was capable of
causing the very sort of physical injuries she was suffering. Under the laws then in
effect, plaintiff‟s toxic mold claims were subject to a one year statute of limitations.
Plaintiff alleged she had no reason to suspect her physical injuries were caused by mold
until March of 2000. She did not, however, dispute the following facts: (1) in 1997, she
experienced an unresolved water intrusion into her apartment that left black and brown
stains on her wall; (2) shortly thereafter, she developed a violent and persistent cough; (3)
in 1998, she received multiple notices from the property manager “that apartments could
have a mold problem related to water intrusion, that it could cause „flu-like‟ effects, and
that tenants should notify management immediately of „any evidence of damage, of any
kind, from a prior [water] event‟” (id. at p. 1532); and (4) in response to the notices,
plaintiff told the property manager she did not have a mold problem and “refused to
26
permit inspection, even as she experienced a battery of physical symptoms . . . .
reasonably describable as „flu-like‟―along with the continuing water intrusion.” (Ibid.)
The appellate court concluded that, as a matter of law, the only reasonable inference that
could be drawn from these uncontested facts was that plaintiff should have discovered the
cause of her injury more than one year before March of 2000.
In their appellate brief, respondents assert that “Slovensky . . . found that plaintiff
should have suspected the cause of injury . . . when she knew that water intrusion into her
apartment left black and brown stains on the walls and that at the same time she
developed a violent and persistent cough.” Defendants omit, however, that the property
manager also repeatedly notified plaintiff her apartment might be contaminated by a
substance that was capable of producing the same physical symptoms she was
experiencing. In this case, however, appellants‟ pleadings allege that the notices they
received in 2007 suggested that exposure to the contamination at Ujima posed no risk to
their health. Thus, to the extent Slovensky is relative to the current dispute, it serves only
to highlight the absence of the type of undisputed facts that would be necessary to
dismiss appellants‟ claims at this stage in the proceedings.
In sum, we conclude that the trial court erred in rejecting appellants‟ claim of
delayed discovery based solely on the fact that they received notice of the contamination
in 2007. During the discovery process, respondents may well uncover evidence
demonstrating that, as of 2007, some or all of the appellants actually suspected the
contamination was capable of causing them personal harm, or otherwise possessed
additional information that put them on inquiry notice of such facts. At this early stage in
the proceedings, however, it would be improper to presume that any reasonably prudent
person who received the information provided in the May 2007 letter or at the April 2007
community meeting would, as a matter of law, suspect that the contamination posed a
risk to human health.10
10 In a footnote, respondents argue that the claims of two appellants who received the
May 1, 2007 letter–Diana Tate and Janice Tolliver–are alternatively time barred because
27
B. The Trial Court Erred in Dismissing the Johnson Appellants
Unlike the other 55 appellants whose claims are discussed above, appellants Tiara
Johnson, Tyweinisha Johnson and Wayne Johnson submitted Cottle declarations denying
that they had ever received the May 1, 2007 letter or attended any community meeting
regarding Ujima. Their declarations do state, however, that they were notified the
contamination at Ujima might be harmful to their health at some point in 2008, but did
not file their claims until the Davis v. Exxon action was initiated in April of 2011.
Although the trial court did not explain why it dismissed the Johnsons‟ claims, the parties
agree that, based on the hearing transcript, the court likely concluded the Johnsons‟
claims were barred because the date of discovery set forth in their Cottle declarations was
more than two years prior to the date on which they filed their claims.
The Johnson appellants concede that the statements in their Cottle declarations
preclude them from pursuing any personal injury claims predicated on exposure to
environmental contamination that occurred while they lived at Ujima. They contend,
however that “their claims . . . are not based on their residency at Ujima Village during
the late 80s, but rather their residence in the adjacent residential community from 1995 to
present.” Each of their Cottle declarations state that: (1) they have lived in a residential
community near Ujima from 1995 to present; (2) they have experienced various physical
their Cottle declarations admit they learned that the contamination was harmful to their
health in late 2008, but did not join as plaintiffs in this case until April of 2011. Tate and
Tolliver, however, contend that, unlike most of the appellants, the only claims they have
pleaded are for continuing trespass, continuing nuisance and continuing public nuisance,
which (they allege) are subject to a three year statute of limitations that accrued only after
they moved from Ujima in 2009. We decline to consider respondents‟ alternative
argument regarding these two appellants, which was raised in a footnote that contains no
analysis or discussion explaining why Tate and Tolliver‟s continuing tort claims accrued
when they were first notified of the contamination. (See Evans v. CenterStone
Development Co. (2005) 134 Cal.App.4th 151, 160 [“We do not have to consider issues
discussed only in a footnote”]; Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1562
[assertions raised only in a footnote may be properly “disregarded”]; Cal. Rules of Court,
rule 8.204, subd. (a)(1)(B).)
28
ailments while living “near Ujima”; and (3) they did not learn that contamination from
Ujima had migrated to their current residential community until April of 2011.
Although the fourth amended complaint indicates the Johnsons may have initially
sought recovery for injuries caused by exposure to contamination both at Ujima and their
current residence, their appellate brief makes clear that they have since abandoned any
claim related to contamination at Ujima.11 Thus, the only issue we must decide is
whether the face of the complaint demonstrates their claims for personal injuries from
contamination at their current residential neighborhood are time barred.
Generally, a demurrer may only be sustained on statute of limitations grounds if
the “complaint disclos[es] on its face that the limitations period has expired.” (Fuller,
supra, 216 Cal.App.4th at p. 962.) Although the allegations in the complaint demonstrate
the contamination at Ujima occurred many decades before this action was filed, there are
no allegations indicating when the contamination migrated to the adjacent residential
neighborhood. The complaint states only that the surrounding neighborhoods were first
tested for environmental contamination in March of 2011, at which point it was
discovered that the contamination had in fact migrated from Ujima. The Johnsons‟ Cottle
declarations similarly allege that they first learned the contamination had migrated from
Ujima to their current community in April of 2011. Thus, based on the operative
pleadings, it is impossible to determine when the Johnsons‟ causes of action for off-site
exposure accrued because it is not clear when the contamination initially migrated from
11 To the extent the allegations in the fourth amended complaint suggest that the
Johnson appellants‟ claims were based solely on exposure to contamination at Ujima,
rather than on exposure at their current residence, we treat their statements in their
appellant briefs as proposed amendments to the fourth amended complaint. (Mercury
Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1072 [plaintiff is permitted to “„“show
in what manner he can amend his complaint and how that amendment will change the
legal effect of his pleading” . . . “for the first time to the reviewing court.” [Citation.]‟”].)
29
Ujima to their current neighborhood. Accordingly, it was improper to dismiss their
12
claims on statute of limitations grounds at this stage in the proceedings.
Respondents, however, argue that the Johnsons‟ claims are untimely because any
injuries they may have developed while living in their current neighborhood were
originally caused by the contamination at Ujima. In support, respondents note that each
of the Johnsons‟ Cottle declarations admit that they suffered physical ailments while
living both “at” and “near Ujima.” At this stage, it would be improper to speculate
whether the Johnson appellants will be able to prove the injuries for which they seek
redress were caused or contributed to by exposure to contamination at their current
residence, rather than by exposure that occurred while living at Ujima. Because
appellants allege they suffered injury from exposure to contamination that migrated from
Ujima to their current neighborhood, and because the complaint does not indicate when
that migration occurred, the trial court erred in dismissing the claims on timeliness
grounds at the demurrer stage.
C. The Trial Court Erred in Dismissing Appellants’ Property Claims against
Government Entities
A subset of fifteen appellants identified in “Exhibit 3” to their brief argue that the
trial court erred in dismissing their claims against the County defendants for injury to real
property. Under Government Code sections 911, et seq., a plaintiff must present a
government claim letter before suing a public entity. Government Code section 911.2
12 At a subsequent demurrer hearing involving the fifth amended complaint, the trial
court reached a similar conclusion regarding a different plaintiff whose injuries were
allegedly caused by exposure to contamination in an adjacent neighborhood.
Respondents argued that the plaintiff‟s claims had accrued when he first learned that the
contamination at Ujima was harmful to human health, which had occurred outside the
applicable limitations period. The court rejected the argument, explaining that
knowledge of contamination at an Ujima was not, as a matter of law, sufficient to trigger
the statute of limitations for claims predicated on exposure to contamination at an
“adjacent site.” In regards to the Johnson appellants, it is unclear from the record
whether the trial court was ever informed that a portion of their claims were predicated
on exposure to contamination at a site adjacent to Ujima, rather than at Ujima itself.
30
states that the claim letter must be submitted not later than six months after accrual for
causes of action “relating to . . . injury to person or to personal property,” and not later
than twelve months after accrual for claims “relating to any other cause of action.”
43 of the 58 appellants have raised no argument as to the trial court‟s dismissal of
their claims against the County defendants. Those 43 appellants have therefore
abandoned those claims. With the exception of the three Johnson appellants, the
remaining 15 appellants have abandoned their personal injury claims against the County
defendants, apparently conceding that they failed to file their claims letters within six
months after those claims accrued. They argue, however, that they did file their claim
letters within one year of accrual, thereby preserving their claims for injuries to real
property. The County defendants do not address this argument in their briefing. Instead,
they argue only that “none of these . . . appellants presented a claim within 6 months of
the accrual date of their claims as required by the Government Claims Act.” We
therefore presume that County defendants do not dispute that each of these 15 appellants
filed their claims letters within twelve months of accrual of their property claims, and
may therefore continue to pursue such claims.
Finally, the three Johnson appellants contend that they filed their government
claim letters within six months of discovering that contamination had migrated to their
residential neighborhood in April of 2011, thereby preserving their right to pursue claims
against the County defendants for injury to both their person and their real property. As
explained above, the pleadings allege that plaintiffs initially discovered that
contamination had migrated from Ujima to the adjacent residential neighborhood in
2011; there are no other allegations indicating when this migration may have initially
occurred. The Johnsons‟ Cottle declarations also assert they filed their government
claims letters within six months of the date they discovered contamination at their current
neighborhood. Accordingly, for the reasons set forth above regarding the Johnsons‟
claims against the private defendants, they may proceed with all of their claims against
the County defendants that are predicated on exposure to contamination at their current
residence.
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In sum, based on the briefing and the record before us, we conclude that: (1) 43 of
the 58 appellants have abandoned all of their claims against the County defendants; (2)
the Johnson appellants have preserved their right to pursue all of their claims against the
County defendants for injuries arising from exposure to contamination at their current site
of residence; and (3) the remaining 13 appellants identified in exhibit three to the
appellants‟ opening appellate brief may only pursue claims against the County defendants
for damage to real property.
DISPOSITION
The trial court‟s order sustaining the demurrer to appellants‟ personal injuries
claims against the non-government defendants is reversed. The trial court‟s order is also
reversed with respect to: (1) all claims asserted by the Johnson appellants regarding
exposure to contamination at their current residential neighborhood; and (2) claims for
damage to real property asserted against the County defendants by the other 12 appellants
identified in Exhibit Three to appellants‟ opening claims. The order is affirmed as to any
other claims alleged by any of the other appellants. Appellants shall recover their costs
on appeal.
ZELON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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