Brooks et al v. Darling International, Inc.

Filing 37

MEMORANDUM AND ORDER signed by Chief Judge Morrison C. England, Jr. on 10/29/2014 ORDERING 29 Defendant's Motion to Dismiss First Amended Complaint is DENIED. (Reader, L) Modified on 10/30/2014 (Reader, L).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LINDA BROOKS, Individually and on
behalf of all others similarly situated, et
al.,

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Plaintiffs,

MEMORANDUM AND ORDER

v.
DARLING INGREDIENTS, INC., F/K/A
DARLING INTERNATIONAL, INC.,
Defendant.

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No. 1:14-cv-01128-MCE-SMS

Plaintiffs Linda Brooks, Donald Brooks, Donna Conroe, Allen Conroe, and

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Kimberly Tapscott-Munson (collectively “Plaintiffs”) initiated this action individually and

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on behalf of all persons similarly situated against Darling Ingredients, Inc. (“Defendant”).

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Plaintiffs filed their First Amended Complaint (“FAC”) on August 13, 2014, stating three

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causes of action for public nuisance, private nuisance, and negligence/gross negligence.

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ECF No. 20. Presently before the Court is Defendant’s Motion to Dismiss Plaintiffs’ FAC

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for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).1 For the

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following reasons, Defendant’s Motion is DENIED.2

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All further references to “Rule” or “Rules are to the Federal Rules of Civil Procedure unless
otherwise noted.
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Because oral argument would not be of material assistance, the Court ordered this matter
submitted on the briefs. E.D. Cal. Local Rule 230(g). See ECF No. 35.

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BACKGROUND3

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Defendant Darling Ingredients, Inc. constructed and currently operates and/or

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maintains a rendering plant (“the rendering plant”) at 795 W. Belgravia Ave. in Fresno,

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California. Plaintiffs all reside in Fresno, California, as owners/occupants and renters of

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residential property within a three-mile radius of the rendering plant. Plaintiffs claim that

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over the last several years, Plaintiffs’ property, including their neighborhoods,

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residences, and yards, have been and continue to be physically invaded by noxious

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odors, pollutants, and air contaminants emitted from the rendering plant. Plaintiffs claim

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that as a result, they have suffered injuries and damages, including exposure to

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pollutants and horrific odors, interference with the use and enjoyment of their property,

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and decreased property values. Plaintiffs allege that Defendant has received at least

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one violation from the San Joaquin Valley Air Pollution Control District due to its

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emission of odors.

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STANDARD

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On a motion to dismiss for failure to state a claim under Federal Rule of Civil

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Procedure 12(b)(6), all allegations of material fact must be accepted as true and

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construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only “a short and plain

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statement of the claim showing that the pleader is entitled to relief” in order to “give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

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47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require

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detailed factual allegations. However, “a plaintiff’s obligation to provide the grounds of

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The following recitation of facts is taken, sometimes verbatim, from Plaintiffs’ First Amended
Complaint. ECF No. 20.

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his entitlement to relief requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Id. (internal citations and

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quotations omitted). A court is not required to accept as true a “legal conclusion

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couched as a factual allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009)

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(quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right

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to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan

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Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating

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that the pleading must contain something more than “a statement of facts that merely

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creates a suspicion [of] a legally cognizable right of action.”)).

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Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket

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assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (internal citations and

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quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard

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to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of

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the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 5 Charles

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Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain “only enough

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facts to state a claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . .

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have not nudged their claims across the line from conceivable to plausible, their

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complaint must be dismissed.” Id. However, “[a] well-pleaded complaint may proceed

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even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a

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recovery is very remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S.

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232, 236 (1974)).

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A court granting a motion to dismiss a complaint must then decide whether to

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grant leave to amend. Leave to amend should be “freely given” where there is no

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“undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice

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to the opposing party by virtue of allowance of the amendment, [or] futility of the

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amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v.

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Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to

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be considered when deciding whether to grant leave to amend). Not all of these factors
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merit equal weight. Rather, “the consideration of prejudice to the opposing party . . .

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carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183,

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185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that

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“the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group,

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Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006,

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1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.

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1989) (“Leave need not be granted where the amendment of the complaint . . .

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constitutes an exercise in futility . . . .”)).

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ANALYSIS

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Defendant’s Motion seeks to dismiss Plaintiffs’ FAC in its entirety. Defendant

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claims that Plaintiffs fail to state a claim for public and private nuisance because there

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are no factual allegations to show that Plaintiffs suffered harm different in kind from other

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members of the Fresno community or that an ordinary person would be reasonably

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annoyed by the rendering activities. ECF No. 29-1 at 5. Defendant claims that Plaintiffs

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fail to state a claim for negligence and gross negligence both because they merely recite

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the legal elements of those claims without any factual support and because those claims

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are barred by the three-year statute of limitations. Id. As set forth below, Defendants’

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arguments are not well taken.

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A.

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Under California Civil Code section 3493, a “private person may maintain an

Public/Private Nuisance Claims

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action for a public nuisance, if it is specially injurious to himself, but not otherwise.” A

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public nuisance is “one which affects at the same time an entire community or

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neighborhood, or any considerable number of persons, although the extent of the

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annoyance or damage inflicted upon individuals may be unequal.” Cal. Civ. Code

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§ 3480. A private nuisance, on the other hand, is “a non-trespassory interference with

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the private use and enjoyment of land.” San Diego Gas & Elec. Co. v. Superior Court,
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13 Cal. 4th 893, 9371996); see also Monks v. City of Rancho Palos Verdes,

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167 Cal. App. 4th 263, 302 (2008). Additionally, “[a] nuisance may be both public and

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private, but to proceed on a private nuisance theory, the plaintiff must prove an injury

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specifically referable to the use and enjoyment of his or her land. The injury, however,

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need not be different in kind from that suffered by the general public.” Monks,

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167 Cal. App. 4th at 302; Koll–Irvine Center Prop. Owners Ass’n v. County of Orange,

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24 Cal. App. 4th 1036, 1041 (1994).

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Defendant argues that Plaintiffs have failed to sufficiently plead a cause of action

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for public nuisance because Plaintiffs have failed to establish that they “suffered harm

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that was different in kind from other members” of the public, and because they failed to

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allege that “an ordinary person would be reasonably annoyed” by the activities. ECF

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No. 29-1 at 7. Plaintiffs argue they have alleged harm different in kind to that suffered by

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the general public because they have suffered property damage whereas other

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members of the public have merely suffered from annoyance. ECF No. 31 at 5.

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Additionally, Plaintiffs claim that they have pleaded facts sufficient to establish that an

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ordinary person would be reasonably annoyed by Defendant’s conduct, even though not

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explicitly identified as such in the FAC. Id. at 3-4.

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With respect to Defendant’s first contention, a private individual is not required to

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plead a special injury when that individual brings a claim for both public and private

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nuisance based on the same activity. See Wagner v. Bike, E046447, 2009 WL 4882603

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(Cal. Ct. App. Dec. 17, 2009) (“When, however, the nuisance is both public and private,

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the plaintiff is not required to show he suffered damages different in kind from those

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suffered by other members of general public.”) (citing Venuto v. Owens-Corning

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Fiberglas Corp., 22 Cal. App. 3d 116, 124); Birke v. Oakwood Worldwide, 169 Cal. App.

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4th 1540, 1551 (2009) (“when the nuisance is a private as well as a public one, there is

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no requirement the plaintiff suffer damage different in kind from that suffered by the

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general public”).  Instead, a plaintiff claiming that the nuisance is both public and private

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must only show he suffered damages “specifically referable to the use and enjoyment of

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his or her land.” Koll-Irvine, 24 Cal. App. 4th at 1041.

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Plaintiffs have alleged they have suffered and continue to suffer property damage

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such that they are forced to forego the use of their yards and stay inside their homes

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because of the noxious odors emitted from Defendant’s rendering plant, and that they

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have faced decreased property values. See ECF No. 20 at 6-7. These allegations are

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sufficient to show interference with the use and enjoyment of land, and thus are

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sufficient for pleading claims of private and public nuisance based on the same action.

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See Koll-Irvine, 24 Cal. App. 4th at 1041.

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With respect to Defendant’s second ground for dismissal of Plaintiffs’ claims, it is

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true that Plaintiffs must prove that an ordinary person would be reasonably annoyed or

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disturbed by the condition in order to successfully assert both public and private

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nuisance claims. See Birke, 169 Cal. App. 4th at 1548. However, the Court finds that

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Plaintiffs have alleged sufficient facts to support the claim that an ordinary person would

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be reasonably annoyed by the activity. For example, Plaintiffs allege that “[t]he noxious

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odors, pollutants, and air contaminants” are so severe as to “unreasonably” interfere with

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the “comfortable enjoyment of life and/or property.” See ECF No. 20 at 18, 20, 31.

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Finding that Plaintiffs have sufficiently pleaded facts to support causes of action
for public and private nuisance, Defendant’s Motion as to these claims is DENIED.

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B.

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Defendant argues that, “[o]ther than applying the conclusory labels of ‘negligently’

Negligence/Gross Negligence Claim

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and ‘improperly,’ . . . Plaintiffs have failed to plead any facts describing how Darling was

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supposedly negligent or grossly negligent . . . .” ECF No. 29-1 at 12. Defendant also

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argues that even if Plaintiffs sufficiently pled a claim for negligence and/or gross

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negligence, the three-year statute of limitations bars the claim. Id.

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“Actionable negligence involves a legal duty to use due care, a breach of such

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legal duty, and the breach as the proximate or legal cause of the resulting injury.” United

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States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal. 3d 586, 594, (1970). After careful
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review of Plaintiffs’ FAC, the Court finds that Plaintiffs have alleged enough to support a

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claim of negligence/gross negligence against Defendant. Specifically, Plaintiffs have

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alleged that “[a] properly constructed, operated, and maintained rendering facility will not

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emit odors and/or air pollutants into neighboring residential areas,” and that by

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“knowingly allowing conditions to exist which caused noxious odors [and] pollutants . . .

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to physically invade Plaintiffs’ property,” Defendant was negligent and/or grossly

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negligent. ECF No. 20 at 8-9. Plaintiffs’ allegations are sufficient at this early pleading

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stage.

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Under California Civil Procedure Code section 338, a three-year statute of

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limitations applies to Plaintiffs’ negligence claim for injury to real property. Defendant

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argues that because Plaintiffs alleged that residents have complained of the odors for

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“several years,” they have “pleaded themselves out of court.” ECF No. 29-1 at 14.

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Specifically, Defendants cite to various cases that have held the word “several” to mean

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“more than two or three but not many.” See ECF No. 29-1 at 15 n.2. This argument is

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unpersuasive, given this early pleading stage and the fact that nothing else on the face

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of the FAC suggests any specific injury outside the three-year period.

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Additionally, even if the Court found the word “several” to necessarily mean more

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than three, Plaintiffs’ claim would be preserved under continuing-wrong accrual

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principles. “Where an injury results from a negligent act and injury continues by reason

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of continued negligence, a recovery may be had for damages caused by the continuing

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negligence even if the claim for the original injury might be time barred.” People of

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California v. Kinder Morgan Energy Partners, L.P., 569 F. Supp. 2d 1073, 1086 (S.D.

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Cal. 2008). Because Plaintiffs allege that Defendant’s negligent acts are ongoing,

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Plaintiffs’ claim is not time barred. Thus, Plaintiffs have sufficiently pleaded a claim for

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negligence/gross negligence, and that claim is not barred by the applicable statute of

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limitations.

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CONCLUSION

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As set forth above, Defendant’s Motion to Dismiss Plaintiffs’ First Amended
Complaint (ECF No. 29) is DENIED.
IT IS SO ORDERED.
Dated: October 29, 2014

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