Victor Suarez et al v. Pacific Gas and Company PG and E et al
MINUTES (IN CHAMBERS) Granting Plaintiffs' Motion for Leave to File Third Amended Complaint [Dkt. 71] and Denying Defendant's Motion to Dismiss as Moot [Dkt. 52] by Magistrate Judge Kenly Kiya Kato. (dts)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Date: February 13, 2017
Title: Victor Suarez, et al. v. Pacific Gas and Company PG and E, et al.
Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
Attorney(s) Present for Plaintiff(s):
Attorney(s) Present for Defendant(s):
(In Chambers) Granting Plaintiffs’ Motion for Leave to File Third
Amended Complaint [Dkt. 71] and Denying Defendant’s Motion to
Dismiss as Moot [Dkt. 52]
Plaintiffs Victor Suarez and Saray Ordaz (“Plaintiffs”), proceeding pro se, filed a Second
Amended Complaint (“SAC”) alleging defendants Pacific Gas and Electric Company and Does 1
through 10 violated 42 U.S.C. §§ 1983 and 1985(3). Defendant Pacific Gas and Electric
Company (“Defendant”) filed a Motion to Dismiss the SAC (“Motion to Dismiss”). Plaintiffs
then filed a Motion for Leave to File a Third Amended Complaint (“Motion to Amend”). The
Court finds both motions suitable for decision without a hearing. For the reasons set forth below,
(1) Defendant’s Motion to Dismiss is DENIED as moot, and (2) Plaintiffs’ Motion to Amend is
On April 4, 2016, Plaintiffs filed a civil rights complaint (“Complaint”) alleging
Defendant violated (1) the Safe Drinking Water Act (“SDWA”); and (2) Plaintiffs’ civil rights
under 42 U.S.C. §§ 1983, 1985(3), and 1986. See ECF Docket No. (“Dkt.”) 1, Compl. Plaintiffs
alleged Defendant poisoned “not only . . . the aquifer beneath the Plaintiffs’ real property located
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in Hinkley, CA 92347, but virtually . . . all aquifers beneath said town” with “byproducts Arsenic
and Uranium . . . in the ground drinking water.” Id. at 4.
On June 10, 2016, Plaintiffs filed a First Amended Complaint (“FAC”) alleging
Defendant violated Plaintiffs’ civil rights under 42 U.S.C. §§ 1983 and 1985(3). Dkt. 34, FAC.
Plaintiffs alleged Defendant’s remedial operations to remove hexavalent chromium from
Hinkley’s Aquifer, to which Plaintiffs and “similarly situated Plaintiff(s)” are connected “via
private individual water well[s],” “has further caused poisoning of Plaintiff(s) private well with
ARSENIC or URANIUM, way over the Federal and State EPA’s limits, by injecting chemicals.”
Id. at 7, 12. Plaintiffs claimed to have suffered “irreparable harm health injuries as a direct result
of being poisoned with toxic chemicals by Defendant’s operations.” Id. at 6.
On June 28, 2016, Defendant filed a Motion to Dismiss the FAC. Dkt. 35. On August 2,
2016, the Court granted Defendant’s Motion to Dismiss the FAC finding the SDWA preempts
Plaintiffs’ civil rights claims under 42 U.S.C. §§ 1983 and 1985(3), but granting Plaintiffs leave to
amend. Dkt. 48.
On August 18, 2016, Plaintiffs filed the SAC once again alleging Defendant violated
Plaintiffs’ civil rights under 42 U.S.C. §§ 1983 and 1985(3). Dkt. 49, SAC; Dkt. 50,
Memorandum of Points and Authorities; Dkt. 51, Decl. in support of SAC. Plaintiffs alleged
Defendant’s “failed remedial operations,” i.e., Defendant’s “purported” removal of hexavalent
chromium “from the poisoned ground drinking water,” caused “substantial poisoning of ground
drinking and potable water, with the by-products Arsenic and Uranium” and that Defendant
“conced[ed] (confess[ed]) of poisoned ground drinking water with URANIUM, way over the
legal limits.” SAC at 12, 15. Plaintiffs further alleged Defendant poisoned Plaintiffs’ drinking
water by “injecting ‘denature ethanol’ [‘E85 GASOLINE’].” Id. at 13 (brackets in original).
Plaintiffs also alleged the State of California Water Board and the Lahontan Regional Water
Quality Control Board have never checked Plaintiffs’ well or aquifer and have refused to
acknowledge that Plaintiffs’ wells are contaminated with Arsenic and/or with Uranium. Id. at 5.
On September 1, 2016, Defendant filed the instant Motion to Dismiss the SAC. Dkt. 52,
MTD. Defendant argues: (1) the SDWA preempts Plaintiffs’ claims under 42 U.S.C. §§ 1983
and 1985(3); (2) Plaintiffs fail to allege discrimination in their 42 U.S.C. § 1985(3) claim; (3)
Plaintiffs’ claims are untimely; and (4) Plaintiffs fail to allege “they suffered injury as a result of
[Defendant]’s concerted action with government actors” in their 42 U.S.C. § 1983 (“Section
1983”) claim. Id. at 2-10. On September 15, 2016, Plaintiffs filed an Opposition. Dkt. 60, MTD
Opp.; Dkt. 62, Memorandum of Points and Authorities; Dkt. 64, Supplemental Memorandum of
Points and Authorities. On September 22, 2016, Defendant filed a Reply. Dkt. 66, MTD Reply.
On November 8, 2016, Plaintiffs filed the instant Motion to Amend with a proposed
Third Amended Complaint (“Proposed TAC”). Dkt. 71, Mot. to Amend; Dkt. 71-1, Proposed
TAC; Dkt. 74, Memorandum of Points and Authorities in support of Motion to Amend and TAC
(“TAC Mem.”). Plaintiffs incorporate the Memorandum filed in support of their Motion to
Amend into the Proposed TAC. See Proposed TAC at 3; TAC Mem. at 11. The Proposed TAC
again seeks relief pursuant to Section 1983 alleging Defendant’s “Agricultural Operations,” i.e.,
“failed remedial operations,” caused Plaintiffs’ ground drinking water to be poisoned with the
by-products Arsenic and Uranium. Proposed TAC at 6. Plaintiffs explain Defendant’s irrigation
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of their alfalfa fields using the “ground drinking water” caused Uranium and Arsenic to “seep
back down to the aquifer, and did poison the rest of the drinking water in such aquifer.” Id. at
10. While Plaintiffs allege the various regulatory agencies do not regulate private wells, they
attach a letter from the Executive Officer of the State of California Lahontan Regional Water
Quality Control Board (“State Board”) stating the State Board has continuing authority to
require Defendant to clean up the discharges from the compressor station site and expressing
hope that the “citizens of Hinkley can dispel health concerns about their community” because
the “levels of chrom-6 in current residential wells are much lower (better) than the state’s
drinking water standard.” TAC Mem., Ex. E. Plaintiffs allege the State Board “is protecting the
Defendant from prosecution, by avoiding to order the Defendant to clean and abate their
byproducts Arsenic and Uranium from ground drinking water . . . because Defendant has paid
said State of California Board millions of dollar, money talks and everyone else walks.” TAC
Mem. at 13. On November 28, 2016, Defendant filed an Opposition to the Motion to Amend.
Dkt. 80, Opp. On December 2, 2016, Plaintiffs filed a Reply. Dkt. 84, Reply.
This matter is thus submitted for decision.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 15(a)(2) provides: “The court should freely give leave [to
amend a pleading] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “In the absence of . . .
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, or futility of amendment” leave to amend should be “freely
given.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962).
THE COURT FINDS THE MEET AND CONFER EFFORTS BY BOTH
PARTIES WAS DEFICIENT
As a preliminary matter, the Court finds the parties’ meet and confer efforts regarding
both motions woefully inadequate. The parties are both cautioned they must strictly comply with
the meet and confer requirements set forth in the Local Rules. Local Rule 7-3 requires counsel
contemplating filing a motion shall first contact opposing parties “to discuss thoroughly,
preferably in person, the substance of the contemplated motion and any potential resolution. The
conference shall take place at least seven (7) days prior to the filing of the motion.” L.R. 7-3
(emphasis added). Additionally, sanctions are available when the parties fail to adequately
comply with the applicable Local Rules (e.g., Local Rules 7-3 and 37-1’s requirement of an
adequate pre-filing conference of counsel). L.R. 37-4, 83-7.
The Court does not expect the parties to be able to resolve the entire case during a meet
and confer session. Contrary to Plaintiffs’ apparent belief, the purpose of the meet and confer
requirement is to discuss a potential motion. Accordingly, Plaintiffs shall not condition meet and
confer conferences on Defendant’s willingness to discuss settlement of the entire action. The
Court does, however, expect the parties to discuss the substance of any proposed motion before
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it is filed in order to determine whether there is truly a need for court intervention. On
September 2, 2016, Plaintiffs filed a “Notice” complaining about and attaching Defendant’s
meet and confer correspondence. Dkt. 54. On January 11, 2017, Plaintiffs filed a “Declaration
and Meet and Confer Status” again appearing to complain about Defendant’s meet and confer
efforts. Dkt. 93. There is no need for such separate filings. Because the meet and confer should
occur before the filing of the motion or opposition, the party filing the motion should make any
appropriate representations at the time of filing. The Court is unimpressed by the parties’
apparent intransigence. Future violations of the meet and confer requirements will result in
THE COURT FINDS NO UNDUE DELAY, PREJUDICE, OR BAD FAITH
“[D]elay alone is not sufficient to justify the denial of a motion requesting leave to
amend.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987) (citing Hurn v. Ret.
Fund Trust of Plumbing, Heating & Piping Indus. of S. California, 648 F.2d 1252, 1254 (9th Cir.
1981)). Moreover, “[t]he party opposing amendment bears the burden of showing prejudice.”
Id. A common indicator of prejudice is when amendment creates “[a] need to reopen discovery
and therefore delay the proceedings.” Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d
980, 986 (9th Cir. 1999) (noting amendments seeking to add complaints and parties would
require substantial additional discovery after discovery had closed and several months after the
deadline to amend had passed).
Defendant argues Plaintiffs’ “contradiction of the allegations in the Complaint shows bad
faith” and cites Union Pac. R.R. Co. v. Coast Packing Co., 236 F. Supp. 2d 1130, 1139 (C.D. Cal.
2002) in support of its position. Dkt. 80, Opp. at 8-11. In Union Pacific, the court denied
plaintiff’s request for leave to amend finding plaintiff’s delay was unreasonable because plaintiff
waited until after discovery had closed and defendant had filed its motion for summary judgment
before seeking leave to file an amended complaint that contradicted prior allegations. Union Pac.
R.R. Co., 236 F. Supp. 2d at 1139. The court found the delay was both prejudicial and indicative
of bad faith. Id.
Here, Plaintiffs waited until after the Motion to Dismiss was fully briefed before filing the
Motion to Amend rather than simply requesting leave to amend as part of their opposition to the
Motion to Dismiss. Nevertheless, at this time, Plaintiffs’ delay does not rise to the level of the
delay in Union Pacific and rather than directly contradict prior allegations, Plaintiffs generally
omit or abandon allegations. Moreover, in PAE Gov’t Servs., Inc. v. MPRI, Inc., 514 F.3d 856
(9th Cir. 2007), the Ninth Circuit explained: “Parties usually abandon claims because, over the
passage of time and through diligent work, they have learned more about the available evidence
and viable legal theories, and wish to shape their allegations to conform to these newly discovered
realities. We do not call this process sham pleading; we call it litigation.” Id. at 859. Therefore,
Defendant has not satisfied its burden of establishing prejudice and the Court declines to find
Plaintiffs have engaged in bad faith litigation tactics at this time.
The Court cautions Plaintiffs, however, that such a delay without explanation could
appear to be motivated by a desire to unnecessarily prolong the litigation. Moreover, the Court
advises Plaintiffs it will not be well disposed to future requests for leave to amend. Ismail v.
County of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (“[A] district court’s discretion
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over amendments is especially broad ‘where the court has already given a plaintiff one or more
opportunities to amend his complaint.’” (citations omitted)); see also Ferdik v. Bonzelet, 963
F.2d 1258, 1262 (9th Cir. 1992).
THE COURT FINDS LEAVE TO AMEND IS NOT FUTILE
Defendant argues leave to amend would be futile because (a) Plaintiffs’ Section 1983
claim is preempted by the SDWA; (b) the Proposed TAC is time-barred; and (c) Plaintiffs have
failed to allege “joint action” sufficient to sue a private actor for acting “under color” of state
law. Dkt. 80, Opp. at 3-8.
“Futility of amendment can, by itself, justify the denial of a motion for leave to amend.”
Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). “A court may deny leave to amend due to
futility or legal insufficiency if the amendment would fail a motion to dismiss under Rule
12(b)(6).” Ewert v. eBay, Inc., 602 F. App’x 357, 359-60 (9th Cir. 2015)1 (citing Miller v.
Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)).
A complaint may be dismissed for failure to state a claim “where there is no cognizable
legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.”
Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007) (citation omitted). In considering whether a
complaint states a claim, a court must accept as true all of the material factual allegations in it.
Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). However, the court need not accept as
true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted).
Although a complaint need not include detailed factual allegations, it “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Cook v.
Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it “allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“A court may take judicial notice of ‘matters of public record’ without converting a
motion to dismiss into a motion for summary judgment. But a court may not take judicial notice
of a fact that is ‘subject to reasonable dispute.’” Lee v. City of Los Angeles, 250 F.3d 668, 689
(9th Cir. 2001) (internal citations omitted); see also In re Korean Air Lines Co., 642 F.3d 685,
689 n.1 (9th Cir. 2011) (taking judicial notice of prior proceedings in federal and state courts);
Fed. R. Evid. 201(b).
Defendant filed a Request for Judicial Notice in support of the Motion to Dismiss
requesting the Court take judicial notice of the complaint in Victor Suarez, et al. v. Pacific Gas
and Electric Company, et al., California Superior Court, County of San Bernardino, Case No.
CIVDS1414078. Dkt. 52-2. Defendant argues the complaint is relevant to its statute of
The Court may cite to unpublished Ninth Circuit opinions issued on or after January 1,
2007. U.S. Ct. App. 9th Cir. R. 36-3(b); Fed. R. App. P. 32.1(a).
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limitations argument because it shows when Plaintiffs had learned of their injury. Dkt. 80, Opp.
at 6-7. The Court may take judicial notice of Plaintiffs’ prior complaint in determining when a
cause of action accrues to the extent it may show when Plaintiffs had knowledge of relevant facts.
Sangster v. Hall, No. EDCV 15-0873-JAK (AGR), 2016 WL 519543, at *4 (C.D. Cal. Jan. 7,
2016), report and recommendation adopted, 2016 WL 540748 (C.D. Cal. Feb. 8, 2016).
On September 12, 2016, Plaintiffs filed a Request for Judicial Notice in support of their
Opposition to the Motion to Dismiss, requesting the Court take judicial notice of various
documents filed in Riddle, et al. v. Pacific Gas & Electric Company, et al., San Bernardino
County Superior Court, Case No. CIVDS1308429 (A1-A3); Suarez, et al. v. Pacific Gas and
Electric Company, et al., San Bernardino County Superior Court, Case No. CIVDS1414078
(A4); and Panchev, et al. v. Pacific Gas and Electric Company, et al., San Bernardino County
Superior Court, Case No. CIVDS1416980 (A5-A7). Dkt. 56. Plaintiffs argue documents A1
through A4 are offered for purposes of showing when the statute of limitations began running.
Dkt. 58. Plaintiffs argue documents A5 through A7 are offered for the purpose of showing
Defendant’s “discriminatory animus.” Id. The Court will take judicial notice of documents A1
thought A4 filed in Riddle and Suarez as it appears they may relate to Plaintiffs’ knowledge of
their injuries. However, Defendant’s alleged “discriminatory animus” is not relevant to the
determination of any motion before the Court. Hence, the Court denies Plaintiffs’ Request for
Judicial Notice of documents A5 through A7.
Plaintiffs filed four additional Requests for Judicial Notice. Dkts. 67, 76, 82, 90. As an
initial matter, Plaintiffs fail to explain how the documents are relevant to any pending motion or
even to the instant action and what the documents would prove if the Court granted Plaintiffs’
Requests for Judicial Notice. Further, to the extent Plaintiffs seek to prove the facts asserted in
the documents, such facts are subject to reasonable dispute. See Lee, 250 F.3d at 689.
Accordingly, the Court denies Plaintiffs’ second, third, fourth, and fifth Requests for Judicial
Notice without prejudice.
The Court hereby cautions Plaintiffs that future filings that include exhibits
containing irrelevant matter will be stricken. See Fed. R. Civ. P. 12(f), 41(b); Saenz v.
Chavez, No. 1:11-CV-01872-SKO PC, 2013 WL 1832680, at *8 (E.D. Cal. May 1, 2013) (“If
Plaintiff again submits an unnecessarily voluminous pile of paper which is not properly organized
and labeled and which contains a multitude of irrelevant exhibits, the exhibits will be stricken in
their entirety.”); Dihz v. Mansanares, No. CV 06-1851 PHX MHM, 2007 WL 735557, at *1 (D.
Ariz. Mar. 7, 2007) (striking irrelevant, unwarranted documents from the docket).
Additionally, the Court advises Plaintiffs it has access to true and correct copies of all
relevant statutes, case law, and dockets of related cases. Therefore, in future filings, Plaintiffs
only needs to properly cite such statutes, case law, and dockets and briefly explain their relevance
to a pending motion or pleading. Hence, future filings including superfluous copies of such
documents will be stricken.
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In determining whether a statute preempts a Section 1983 claim, “[t]he crucial
consideration is what Congress intended.” City of Rancho Palos Verdes, Cal. v. Abrams, 544
U.S. 113, 120, 125 S. Ct. 1453, 161 L. Ed. 2d 316 (2005). “When the remedial devices provided in
a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional
intent to preclude the remedy of suits under § 1983.” Middlesex Cty. Sewerage Auth. v. Nat’l
Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981). Additionally, the
provision of “an express, private means of redress in the statute itself is ordinarily an indication
that Congress did not intend to leave open a more expansive remedy under § 1983.” Abrams,
544 U.S. at 121 (noting “[t]he express provision of one method of enforcing a substantive rule
suggests that Congress intended to preclude others”); see Sea Clammers, 453 U.S. at 20 (“It is
hard to believe that Congress intended to preserve the § 1983 right of action when it created so
many specific statutory remedies, including the two citizen-suit provisions.”).
The SDWA establishes “an elaborate enforcement scheme,” including that the
Administrator may bring a civil action to compel SDWA compliance orders against violators of
the SDWA. See Mattoon v. City of Pittsfield, 980 F.2d 1, 5 (1st Cir. 1992) (citing 42 U.S.C. §
300g-3(b), (g)(1)). In addition, “any person may commence a civil action on his own behalf – (1)
against any person . . . who is alleged to be in violation of any requirement prescribed by or under
[the SDWA]; [or] (2) against the Administrator where there is alleged a failure of the
Administrator to perform any act or duty under [the SDWA] which is not discretionary with the
Administrator.” 42 U.S.C. § 300j-8(a).
The SDWA’s establishment of an “express, private means of redress” demonstrates
“Congress did not intend to leave open a more expansive remedy” under Section 1983. See
Abrams, 544 U.S. at 121; see also Sea Clammers, 453 U.S. at 7 n.10, 20-21 n.31 (holding the
“savings clause” does not preserve a Section 1983 action, finding the “savings clause” did not
“refer . . . to a suit for redress of a violation of th[e] statutes [at issue]”). Hence, the SDWA
preempts all other forms of federal relief for SDWA violations – including claims under Section
1983. Mattoon, 980 F.2d at 4 (“We have little hesitation in concluding that Congress occupied
the field of public drinking water regulation with its enactment of the SDWA.”).
As an initial matter, Defendant urges the Court to find amendment would be futile
because “Plaintiffs cannot amend their complaint to avoid preemption without contradicting
their earlier allegation that PG&E’s alleged injection activities caused the purposed
contamination of their drinking well.” Dkt. 80, Opp. at 5. However, the cases Defendant cites
all involve denying leave to amend without the benefit of a proposed new pleading. In analyzing
whether the Proposed TAC would be futile, the Court can only disregard allegations that are
“patently inconsistent” with prior pleadings. Shirley v. Univ. of Idaho, Coll. of Law, 800 F.3d
1193, 1194 (9th Cir. 2015) (reversing denial of leave to amend “because the allegations in the
proposed second amended complaint cited by the district court were not so patently inconsistent
with appellant’s previous allegations as to warrant a screening dismissal”). Moreover, “[t]he
district court has no free-standing authority to strike pleadings simply because it believes that a
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party has taken inconsistent positions in the litigation.” PAE, 514 F.3d at 859. “[T]here is
nothing in the Federal Rules of Civil Procedure to prevent a party from filing successive
pleadings that make inconsistent or even contradictory allegations. Unless there is a showing
that the party acted in bad faith—a showing that can only be made after the party is given an
opportunity to respond under the procedures of Rule 11—inconsistent allegations are simply not
a basis for striking the pleading.” Id. at 860. Hence, the Court will consider the allegations in the
Proposed TAC on their own terms without reference to the allegedly inconsistent allegations in
Therefore, the Court must determine whether Plaintiffs are alleging a violation of the
SDWA. Part B of the SDWA applies to “public water systems,” while Part C of the SDWA
requires the EPA to establish regulations to “prevent underground injection which endangers
drinking water sources.” 42 U.S.C. §§ 300g, 300h(b)(1). A “public water system” is “a system
for the provision to the public of water for human consumption through pipes or other
constructed conveyances, if such system has at least fifteen service connections or regularly
serves at least twenty-five individuals.” Id. § 300f(4)(A). “Underground injection endangers
drinking water sources if such injection may result in the presence in underground water which
supplies or can reasonably be expected to supply any public water system of any contaminant,
and if the presence of such contaminant may result in such system’s not complying with any
national primary drinking water regulation or may otherwise adversely affect the health of
persons.” Id. § 300h(d)(2).
First, it is undisputed Plaintiffs’ well from which they draw their drinking water is not
part of a “public water system.” Therefore, Part B of the SDWA is not applicable to Plaintiffs’
claims. Second, Defendant concedes the Proposed TAC “carefully omits any mention of
injection, and claims for the first time that the purported arsenic contamination was caused by
crop irrigation.” Dkt. 80, Opp. at 8. Therefore, because the operative pleading for purposes of
Plaintiffs’ Motion to Amend is the Proposed TAC, Part C of the SDWA is not applicable to
Plaintiffs’ claims. Hence, the Court finds Plaintiffs’ Proposed TAC is not preemepted by the
SDWA, because the Proposed TAC does not allege a violation of the SDWA.
Statute of Limitations
The applicable statute of limitations for Plaintiffs’ Section 1983 claim is two years. See
Wallace v. Kato, 549 U.S. 384, 387, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007) (holding state
personal injury limitation statute governs Section 1983 claims); Cal. Code Civ. Proc. § 335.1
(two-year personal injury statute of limitation). A Section 1983 “cause of action accrues when
the plaintiff knows or has reason to know of the injury that is the basis of the action.” Belanus v.
Clark, 796 F.3d 1021, 1025 (9th Cir. 2015), cert. denied, 137 S. Ct. 109, 196 L. Ed. 2d 89 (2016),
reh’g denied, 137 S. Ct. 489 (2016) (citing Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996));
see also Wallace, 549 U.S. at 388 (holding federal law determines when a cause of action accrues
and when the statute of limitations begins to run for a Section 1983 claim). However,
California’s “discovery rule” of tolling, “postpones accrual of a cause of action until the plaintiff
discovers, or has reason to discover, the cause of action.” Bone v. City of Los Angeles, 471 F.
App’x 620, 622 (9th Cir. 2012) (citing Fox v. Ethicon Endo–Surgery, Inc., 35 Cal.4th 797, 807,
27 Cal. Rptr. 3d 661, 110 P.3d 914 (2005)); see also TwoRivers v. Lewis, 174 F.3d 987, 991 (9th
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Cir. 1999) (when federal courts borrow a state limitations period, the court also borrows the
forum state’s tolling rules).
Defendant argues Plaintiffs’ claims are time-barred because Plaintiffs allege in their 2014
state court complaint that “they stopped using their land due to alleged ‘poisoning’ with
substances including arsenic, two years before filing their state court lawsuit in 2014.” Dkt. 80,
Opp. at 6-7 (emphasis in original). Plaintiffs’ state court complaint, filed on September 17, 2014,
alleges “Plaintiffs ceased two years ago utilizing their Realty for any agricultural for profit
purposes, other agricultural products, whether on open land or within sheds to grow by various
technology due to poisoned ground waters with toxic substances, not limited to Arsenic.” RJN,
Ex. A at 4:19-21. However, this allegation is not inconsistent with Plaintiffs’ later allegation that
the discovery of the “poisoning of ground waters with Arsenic and Uranium” was “recent . . .
less than a year ago,” i.e., between September 17, 2013 and September 17, 2014. Id. at 15:19-23.
Plaintiffs further allege Defendant has consistently concealed the contamination. Proposed TAC
The state court complaint was filed on September 17, 2014. RJN, Ex. A. The Complaint
in this action was filed on April 4, 2016. Dkt. 1. Assuming the truth of Plaintiffs’ allegations, it is
possible they discovered the existence of Arsenic and Uranium in their groundwater after April 4,
2014, i.e., within two years of the filing of the Complaint in this action. Therefore, there appears
to remain a question of fact regarding when Plaintiffs discovered or had reason to discover their
injury was caused by Arsenic and Uranium poisoning. See Burdick v. Union Sec. Ins. Co., No.
CV 07-4028 ABC (JCx), 2009 WL 4798873, at *10 (C.D. Cal. Dec. 9, 2009) (“When a plaintiff
reasonably should have discovered facts for purposes of the accrual of a cause of action or
application is generally a question of fact, properly decided as a matter of law only if the evidence
. . . can support only one reasonable conclusion.” (quoting Broberg v. Guardian Life Ins. Co. of
Am., 171 Cal. App. 4th 912, 920-21, 90 Cal. Rptr. 3d 225 (2009))). Hence, construing the
Proposed TAC in the light most favorable to Plaintiffs, there is insufficient evidence to prove at
this time that Plaintiffs’ claims are necessarily time-barred.
“To act ‘under color of’ state law for § 1983 purposes does not require that the defendant
be an officer of the State. It is enough that he is a willful participant in joint action with the State
or its agents. Private persons, jointly engaged with state officials in the challenged action, are
acting see ‘under color’ of law for purposes of § 1983 actions.” See Dennis v. Sparks, 449 U.S.
24, 27-28, 32, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980) (citing Adickes v. S. H. Kress & Co., 398
U.S. 144, 152, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); United States v. Price, 383 U.S. 787, 794,
86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966)). In Dennis, after a judge enjoined the production of
minerals from certain oil leases owned by plaintiffs, plaintiffs sued the judge, the corporation
which had obtained the injunction, the sole owner of the corporation, and the two individual
sureties on the injunction bond under Section 1983 alleging “the injunction had been corruptly
issued as a result of a conspiracy between the judge and the other defendants, thus causing a
deprivation of property, i.e., two years of oil production, without due process of law.” Id. at 26.
The U.S. Supreme Court found “the allegations were that an official act of the defendant judge
was the product of a corrupt conspiracy involving bribery of the judge.” Id. at 28. Hence, the
Court held, “[u]nder these allegations, the private parties conspiring with the judge were acting
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under color of state law; and it is of no consequence in this respect that the judge himself is
immune from damages liability.” Id.
Here, Defendant argues there is no allegation “of a connection between acts by the state
actors and acts by PG&E.” Dkt. 80, Opp. at 7. Defendant argues Plaintiffs allege “the state
actors did nothing wrong.” Id. However, Plaintiffs incorporate a letter into the Proposed TAC
wherein the State Board acknowledges its ability to continue to require Defendant to clean up the
contaminated aquifer. Moreover, Plaintiffs allege the State Board “is protecting the Defendant
from prosecution” and has “concealed the facts” and “not informed Plaintiffs that drinking
poisoned water with Arsenic, will cause severe damage to Plaintiffs’ health,” because Defendant
paid the State Board millions of dollars. TAC Mem. at 13; Proposed TAC at 9. Construing the
allegations in the Proposed TAC in the light most favorable to Plaintiffs, Plaintiffs have alleged
the State Board was bribed by Defendant to protect Defendant from prosecution for
contaminating Plaintiffs’ water. As in Dennis, the allegations are that (a) an official act, i.e.,
“protecting the Defendant from prosecution,” including through drafting reports and writing
letters to Plaintiffs, (b) by a state actor, i.e., the State Board, (c) was the result of a conspiracy
between the state actor and Defendant. While the Court acknowledges it will be difficult for
Plaintiffs to prove such wrongful conduct occurred, at this stage, Plaintiffs have alleged “joint
action” sufficient to sue Defendant for acting “under color” of state law.
Therefore, the Court finds the Proposed TAC is not futile because it would not be subject
to dismissal under Federal Rule of Civil Procedure 12(b)(6). See Ewert, 602 F. App’x at 359-60.
The Court advises the parties it will be amenable to requests for staged discovery in the Joint
Report pursuant to Federal Rule of Civil Procedure 26 in order to streamline resolution of this
IT IS THEREFORE ORDERED:
Defendant’s Motion to Dismiss the SAC [Dkt. 52] is DENIED as MOOT.
Plaintiffs’ Motion to Amend [Dkt. 71] is GRANTED.
The Clerk of Court shall file Plaintiffs’ Third Amended Complaint [Dkt. 71-1].
Page 10 of 10
Initials of Deputy Clerk __
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