County of Stanislaus v. Travelers Indemnity Company

Filing 35

ORDER signed by Senior Judge William B. Shubb on 9/15/2015 ORDERING that plaintiff shall resubmit any evidence no later than 10/9/2015 and defendant may submit any objections to that evidence no later than 10/16/2015. The hearing on the 28 , 29 cross-motions for summary judgment set for 9/21/2015 is hereby RESET for 11/2/2015. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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COUNTY OF STANISLAUS,
Plaintiff,

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CIV. NO. 1:14-00666 WBS SMS
ORDER

v.
TRAVELERS INDEMNITY COMPANY;
and DOES 1 through 50,
inclusive,

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Defendant.

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----oo0oo----

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This action seeks to resolve disputes regarding a

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comprehensive general liability policy issued to plaintiff County

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of Stanislaus by the Insurance Company of the Pacific Coast,

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which was a former entity of defendant Travelers Indemnity

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Company.

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parties moved for summary judgment to establish defendant’s

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obligations under the policy.

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Pursuant to Federal Rule of Civil Procedure 56, both

An insurer’s duty to defend “arises as soon as tender
is made” and is “discharged when the action is concluded” unless
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it is “extinguished earlier” because the insurer shows “that no

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claim can in fact be covered.”

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Indem. Co., 17 Cal. 4th 38, 58 (1997).

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here, a policy includes a pollution exclusion and reinstates

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coverage for “sudden and accidental” pollution, the insured

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“establishes that [the insurer] is obligated to defend . . . if

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there is any potential that the release or escape of at least

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some of the pollutants was ‘sudden and accidental.’”

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Travelers Cos., 39 Cal. App. 4th 1610, 1616 (1st Dist. 1995); see

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generally Montrose Chem. Corp. v. Superior Court, 6 Cal. 4th 287,

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300 (1993).

Aerojet-Gen. Corp. v. Transp.
When, as is the case

Vann v.

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To show the potential of a “sudden and accidental”

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release of pollutants at the Greer Landfill, plaintiff first

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relies on the May 23, 2007 “South Area Groundwater Investigation

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Report,” which states:

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An employee from Stanislaus County, who was present at
the
landfill
in
1985
and
1986,
reported
that
excavations in the landfill area north of Jantzen Road
were dug to depths of approximately 80 feet below
grade, which would have potentially immersed landfill
waste in the groundwater table when groundwater
elevations were high.
In the southern area, waste
cells
were
also
dug
in
the
summer
close
to
groundwater.
Again,
county
staff
provided
an
anecdotal account of a time when rising groundwater
was “floating” waste in a cell and additional soil had
to be added to ballast the waste.

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(Syz Decl. Ex. A at STATRAV7233 (Docket No. 32-3).)

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objects to the court’s consideration of this evidence because it

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contains hearsay that plaintiff would be unable to offer in an

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admissible form at trial and plaintiff has not authenticated the

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report.

(See Docket No. 33-1 at 2:2-3:11.)
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Defendant

It is also unclear

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from the report whether the employee was referring to excavations

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and immersion of waste that occurred during the coverage period.

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As this court has previously discussed, the “current

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law in the Ninth Circuit is arguably that the rule against

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hearsay, Fed. R. Evid. 802, applies to evidence submitted in

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support of and in opposition to a motion for summary judgment.”

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Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110,

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1122 (E.D. Cal. 2006).

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applies to evidence a non-moving party submits, plaintiff must

Moreover, even if a more lenient standard

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overcome the pollution exclusion to prevail on its separate

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motion for summary judgment, and the hearsay rule unequivocally

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applies to evidence the moving party submits.

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The Ninth Circuit has also “repeatedly held that ‘documents which

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have not had a proper foundation laid to authenticate them cannot

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support [or defend against] a motion for summary judgment.’”

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at 1120 (alteration in oringial).

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See id. at 1121.

Id.

Defendant also objects to Exhibits E and F attached to

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Benjamin Syz’s Declaration on several grounds, including that

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Exhibit E is not authenticated and Exhibit F is an incomplete

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copy of the report.

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restates these objections, along with raising other more

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formulaic objections, in its response to plaintiff’s statement of

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undisputed facts.

(See Docket No. 33-1 at 3:46-24.)

Defendant

(See Docket No. 33-2.)

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The court will provide plaintiff with the opportunity

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to resubmit any evidence to which defendant objects and to show

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that the evidence “may be presented in an admissible form at

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trial.”

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After plaintiff has resubmitted any evidence, the court will give

See Burch, 433 F. Supp. at 1120 (emphasis omitted).

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defendant the opportunity to raise any necessary objections to

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that evidence.

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IT IS THEREFORE ORDERED that plaintiff shall resubmit

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any evidence no later than October 9, 2015 and defendant may

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submit any objections to that evidence no later than October 16,

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2015.

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for September 21, 2015 is hereby reset for November 2, 2015.

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Dated:

The hearing on the cross-motions for summary judgment set

September 15, 2015

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