Ecological Rights Foundation et al v. Hot Line Construction, Inc.
MINUTES (IN CHAMBERS) Order DENYING Plaintiffs' Motion to Compel Site Inspections Without Prejudice and DIRECTING Defendant SCE to Respond to Plaintiffs' Request for Site Inspections Within Seven (7) Days of This Order [Dkt. 28] by Magistrate Judge Kenly Kiya Kato. (dts)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EDCV 20-1108-AB (KKx)
Date: November 19, 2020
Title: Ecological Rights Foundation, et al. v. Hot Line Construction, Inc., et al.
Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
Attorney(s) Present for Plaintiff(s):
Attorney(s) Present for Defendant(s):
Order DENYING Plaintiffs’ Motion to Compel Site Inspections Without
Prejudice and DIRECTING Defendant SCE to Respond to Plaintiffs’
Request for Site Inspections Within Seven (7) Days of This Order [Dkt. 28]
On October 21, 2020, Plaintiffs Ecological Rights Foundation and Santa Barbara
Channelkeeper (“Plaintiffs”) filed a Motion to Compel (“Motion”) defendant Southern California
Edison Company (“SCE”) to permit site inspections upon six SCE facilities. ECF Docket. No.
(“Dkt.”) 28 at 2. Plaintiffs seek an order permitting three site inspections to conduct storm water
and sediment sampling and make visual observations at each of the six facilities. Id. The parties
filed a Joint Stipulation pursuant to Local Rule 37-2. Dkt. 28-1. On October 29, 2020, Plaintiffs
and defendant SCE filed supplemental briefs. Dkts. 30, 29, 31. For the reasons stated below, the
Court DENIES Plaintiffs’ Motion without prejudice.
SITE INSPECTIONS PRIOR TO LITIGATION
On February 20, 2020, prior to Plaintiffs filing a complaint, Plaintiffs and defendant SCE
executed a written agreement setting forth certain confidentiality obligations and the terms and
conditions under which defendant SCE would voluntarily permit Plaintiffs to conduct four site
inspections. Dkt. 28-2, Declaration of Brian Orion (“Orion Decl.”), ¶ 21; Dkt. 30-1, Suppl.
Declaration of Brian Orion (“Suppl. Orion Decl.”), ¶ 3.
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On March 8, 2020, in advance of any site inspections, defendant SCE voluntarily gave
Plaintiffs facility storm water management plans to assist them in conducting the anticipated
inspections. Dkt 28-10, Declaration of J. Tom Boer (“Boer Decl.”), ¶ 5.
On March 10, 2020, Plaintiffs conducted site inspections of three SCE facilities and obtained
storm water and sediment samples at each of these facilities. Orion Decl., ¶ 22. Plaintiffs could not
proceed with inspecting the fourth facility due to a lack of rain. Id., ¶ 23.
EFFORTS TO MEET AND CONFER
On May 29, 2020, Plaintiffs initiated this action by filing a Complaint against defendant Hot
Line Construction, Inc. for violations of the Clean Water Act (“CWA”), 33 U.S.C. § 1365(a)(1) and
Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B). Dkt. 1.
On June 8, 2020, Plaintiffs filed a First Amended Complaint against defendants Hot Line
Construction, Inc. and SCE (collectively, “Defendants”) for violations of the CWA and RCRA.
On August 28, 2020, Plaintiffs’ counsel requested via email that defendant SCE “agree to
accept service of site inspection requests and meet and confer on appropriate site inspection
protocols.” Orion Decl., ¶ 3; Boer Decl., ¶ 7. Plaintiffs sought defendant SCE’s agreement to early
site inspections in exchange for a fifteen-day extension for defendant SCE to respond to Plaintiffs’
proposed second amended complaint in connection with a proposed stipulation to permit Plaintiffs
to file a second amended complaint. Orion Decl., ¶¶ 2, 3; Boer Decl., ¶ 7.
On August 31, 2020, defendant SCE’s counsel responded defendant SCE was not “willing to
agree to any discovery related issues in connection with negotiation of the terms for a stipulation on
the second amended complaint.” Boer Decl., ¶ 7.
On September 8, 2020, Plaintiffs’ counsel sent an email to defendant SCE’s counsel with
Plaintiffs’ request for site inspections. Orion Decl., ¶ 7; Boer Decl., ¶ 8. This email included the
names of three SCE facilities Plaintiffs sought to inspect and raised the possibility of inspecting two
additional facilities. Boer Decl., ¶ 8, Ex. B.
On September 9, 2020, Plaintiffs filed the operative Second Amended Complaint (“SAC”)
seeking declaratory judgment, injunctive relief, imposition of civil penalties, and award of costs for
Defendants’ violations of the CWA and RCRA. Dkt. 19. Plaintiffs contend Defendants own and
operate numerous corporation yards and service centers, including twenty-seven SCE facilities, that
are unlawfully discharging toxic pollutants into California waterways. Id. at 2, 3, Ex. 1.
On September 11, 2020, Plaintiffs’ counsel and defendant SCE’s counsel engaged in a meetand-confer call to discuss Plaintiffs’ request for site inspections. Orion Decl., ¶ 8. During this call,
defendant SCE’s counsel agreed to take under consideration Plaintiffs’ “need for the site
inspections,” “the possibility of scheduling the Rule 26(f) conference now,” and “whether limiting
the number of Facilities” that would be litigated at once “would enable the parties to schedule the
Rule 26(f) conference now.” Orion Decl., ¶¶ 9, 10. Later that day, Plaintiffs’ counsel sent a followup email to defendant SCE’s counsel indicating Plaintiffs would agree to bifurcate the case such that
Plaintiffs would seek to limit discovery to up to six facilities, two of which Plaintiffs had yet to
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determine, during the initial phase of discovery. Orion Decl., ¶ 11; Boer Decl., ¶ 9, Ex. C.
Plaintiffs’ counsel asked whether defendant SCE would agree to schedule the Rule 26(f) conference
in light of the proposed limitation. Orion Decl., ¶ 11.
On September 18, 2020, defendant SCE’s counsel conveyed in a letter that it would not
agree to Plaintiffs’ requests for early discovery in the form of site inspections. Orion Decl., Ex. 1;
Boer Decl., ¶ 10. Defendant SCE’s counsel stated, Plaintiffs’ “attempts to pursue [site] inspections
now, prior to the filing of any response to the pleadings and only days after the filing of extensive
amendments to the Complaint, disregard multiple procedures established by the Federal Rules of
Civil Procedure[.]” Orion Decl., Ex. 1 at 2. Defendant SCE’s counsel further stated, “Plaintiffs
have not met their burden to establish there is ‘good ca[u]se” for such site inspections given the ‘real
and necessary’ needs of the case.” Id. at 7. Defendant SCE’s counsel maintained Plaintiffs’ requests
in September were premature, as December, January, February, and March tend to be the months of
highest rainfall in Southern California. Id.; Dkt. 28-1 at 13.
On September 24, 2020, the Court issued an Order Setting Scheduling Conference
(“Scheduling Conference Order”) setting a scheduling conference hearing for January 22, 2021.
Dkt. 22. The Court encouraged “counsel to agree to begin to conduct discovery actively before the
Scheduling Conference.” Id. at 2 (emphasis in original).
On October 5, 2020, Plaintiffs’ counsel sent defendant SCE a letter demanding defendant
SCE immediately agree to three site inspections for six of the twenty-seven facilities identified in
Plaintiffs’ SAC. Orion Decl., Ex. 2. Plaintiffs’ counsel stated, “Absent a prompt and unequivocal
change of position from defendant SCE, Plaintiffs will proceed with filing a motion to compel
On October 9, 2020, defendant SCE’s counsel responded in a letter that a motion to compel
was “unwarranted.” Orion Decl., Ex. 5 at 1. Defendant SCE’s counsel suggested that if Plaintiffs
were unwilling to accommodate defendant SCE’s request to wait until it filed a response to the SAC,
defendant SCE could: 1) schedule a Rule 26(f) conference the week of November 16, 2020, 2)
provide its Rule 26(a) disclosures no later than December 18, 2020, and 3) respond to Plaintiffs’
First Set of Requests for Production of Documents no later than January 15, 2021. Id. at 7.
Defendant SCE noted Plaintiffs had not yet served a copy of any Request for Entry Upon
Designated Property on defendant SCE. Id. at 6.
Later that day, Plaintiffs and defendant SCE attended a meet-and-confer call regarding the
issues raised in defendant SCE’s October 9, 2020 response. Orion Decl., ¶ 18. After discussing
these issues, the parties reached an impasse. Id.
On October 10, 2020, Plaintiffs’ counsel prepared and served Plaintiffs’ First Request for
Entry Upon Designated Property (“Request”) on defendant SCE seeking to gain entry upon six SCE
facilities. 1 Orion Decl. ¶ 19, Ex. 6.
Plaintiffs list six SCE facilities in their Request: “(1) SCE Pardee Substation Helistop, Santa
Clarita, CA 91355; (2) 10060 Telegraph Road, Ventura, CA 93004; (3) 1325 & 1241 S Grand Ave,
Santa Ana, CA 92705; (4) 103 David Love Place, Goleta, CA 93117; (5) 14155 Bake Parkway, Irvine,
CA 92618; and (6) 1721 22nd Street, Santa Monica, CA 90404.” Orion Decl. ¶ 19, Ex. 6 at 3–4.
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On October 12, 2020, defendant SCE’s counsel replied that defendant SCE would respond
“within 30 days after the parties’ Rule 26(f) conference” during the week of November 16, 2020.
Boer Decl., ¶ 14, Ex. D. Counsel for defendant Hot Line Construction, Inc. indicated November
17, 2020 was an acceptable date for Hot Line Construction, Inc.’s participation in the Rule 26(f)
conference. Boer Decl., ¶¶ 16, 17. Plaintiffs’ counsel also indicated November 17, 2020 was an
acceptable date for the Rule 26(f) conference. Boer Decl., Ex. G; See Dkt. 28-1 at 31 (“The parties
subsequently agreed on November 17 for the [Rule 26(f)] conference[.]”
On October 21, 2020, Plaintiffs filed the instant Motion along with a Joint Stipulation
pursuant to Local Rule 37-2 seeking an order compelling defendant SCE to permit Plaintiffs 1) entry
upon six SCE facilities and 2) three site inspections at each of these facilities to conduct storm water
and sediment sampling and make visual observations. Dkt. 28, Mot., Dkt. 28-1, JS. On October 29,
2020, the parties submitted supplemental briefs. Dkts. 29, 30, 31.
The matter thus stands submitted.
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense[.]” FED. R. CIV. P. 26(b)(1). A party, however, “may not seek discovery
from any source” prior to the conference required by Rule 26(f), “except . . . when authorized by
these rules, by stipulation, or by court order.” FED. R. CIV. P. 26(d); Am. LegalNet, Inc. v. Davis,
673 F. Supp. 2d 1063, 1066 (C.D. Cal. 2009) (noting Rule 26(d) of the Federal Rules of Civil
Procedure “generally provides that formal discovery will not commence until after the parties have
conferred as required by Rule 26(f)” (internal citations and quotation marks omitted)). The Rule
26(f) conference of counsel must occur “at least 21 days before a scheduling conference is to be
held[.]” FED. R. CIV. P. 26(f)(1).
To request an inspection of property, a party may seek an order compelling such inspection
when the requested party “fails to respond that inspection will be permitted—or fails to permit
inspection—as requested under Rule 34.” FED. R. CIV. P. 37(a)(3)(B)(iv). Under Rule 34, a party
may serve a request “to permit entry onto designated land or other property possessed or controlled
by the responding party, so that the requesting party may inspect, measure, survey, photograph, test,
or sample the property or any designated object or operation on it.” FED. R. CIV. P. 34(a)(2). In
turn, “[t]he party to whom the request is directed must respond in writing within 30 days after being
served[.]” FED. R. CIV. P. 34(b)(2).
As an initial matter, the Court notes site inspections at six SCE facilities would satisfy the
relevance requirement under Federal Rule of Civil Procedure 26(b)(1). See FED. R. CIV. P. 26(b)(1).
The SAC asserts defendant SCE is in violation of 1) the CWA by discharging pollutants from its
facilities to United States waters in the absence of a NPDES permit and 2) RCRA by discharging
dioxins and other solids from waste from SCE’s facilities. Dkt. 19. Sampling of storm water
discharges from SCE facilities and visual observations of site conditions could indicate storm water
discharges contain elevated levels of dioxins and support Plaintiffs’ claims. Dkt. 28-1 at 5. Thus,
the site inspections of the six SCE facilities would be highly relevant to Plaintiffs’ claims. See FED.
R. CIV. P. 26(b)(1).
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The Court, however, finds Plaintiffs’ Motion premature. Plaintiffs’ counsel prepared and
served Plaintiffs’ Request to gain entry upon six SCE facilities on defendant SCE on October 10,
2020. Orion Decl. ¶ 19, Ex. 6. The date of service was prior to the Rule 26(f) conference, and
Plaintiffs had not obtained permission from the Court or a stipulation from defendant SCE
permitting such early discovery. Therefore, Plaintiffs did not have the authority to serve the
discovery request on defendant SCE. See FED. R. CIV. P. 26(d), (f). The Court will deem the
Request served as of the November 17, 2020 Rule 26(f) conference. FED. R. CIV. P. 26(d)(2)(B)
(“The [early Rule 34 request] is considered to have been served at the first Rule 26(f) conference.”).
Thus, because the thirty-day deadline for defendant SCE to respond to Plaintiffs’ Request has not
passed, FED. R. CIV. P. 34(b)(2), the Motion is DENIED without prejudice.
Despite the Court’s conclusion that Plaintiffs’ Request is premature, the Court finds the
information sought by Plaintiffs’ Motion is clearly relevant information. The Court’s Scheduling
Conference Order specifically encourages “counsel to agree to begin to conduct discovery actively
before the Scheduling Conference” in its Scheduling Conference Order. Dkt. 22 (emphasis in
original). It is undisputed that site inspections can only occur during a rainy season, and the next
rainy season is quickly approaching. Orion Decl., Ex. 1 at 7; Dkt. 28-1 at 13. Moreover, in light of
the parties’ multiple meet-and-confer calls and defendant SCE’s willingness as late as September
2020 to consider Plaintiffs’ need for site inspections, defendant SCE appears to have led Plaintiffs to
believe the parties would be able to conduct some number of site inspections during the
approaching rainy season. Orion Decl., ¶¶ 9, 10, 18. Accordingly, the Court will order an expedited
response by defendant SCE.
IT IS THEREFORE ORDERED that (1) Plaintiffs’ Motion to Compel is DENIED
without prejudice (dkt. 28); and (2) within seven (7) days of this Order, defendant SCE shall serve
its response to Plaintiffs’ Request, which is deemed served as of November 17, 2020.
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