CA Dept Toxic Sub v. Brighton Oil Co, et al

Filing 1167

ORDER signed by Judge Garland E. Burrell, Jr on 10/5/10 GRANTING Pltf's 1166 Request to dismiss Causes of Action. Pltf's Second and Third Causes of Action in the 1145 Fourth Amended Complaint are DISMISSED. (Owen, K)

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CA Dept Toxic Sub v. Brighton Oil Co, et al Doc. 1167 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EDMUND G. BROWN JR., State Bar No. 37100 Attorney General of California MARGARITA PADILLA, State Bar No. 99966 Supervising Deputy Attorney General SANDRA GOLDBERG, State Bar No. 138632 Deputy Attorney General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 622-2145 E-mail: Sandra.Goldberg@doj.ca.gov Attorneys for Plaintiff California Department of Toxics Substance Control IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, CIV-S-02-0018 GEB-GGH v. CHARLES V. KESTER, ET AL., PLAINTIFF'S REQUEST FOR Plaintiff, DISMISSAL OF SECOND AND THIRD CAUSES OF ACTION AND [PROPOSED] ORDER Judge The Honorable Garland E. Burrell, Jr. Defendants, ______________________________________ AND RELATED CROSS-CLAIMS, COUNTERCLAIMS AND/OR THIRDPARTY ACTIONS. Trial Date: None Action Filed: January 4, 2002 Plaintiff, California Department of Toxic Substances Control ("DTSC") hereby requests dismissal of the Second Cause of Action (for Injunctive Relief under California Health and Safety Code Section 25358.3) and the Third Cause of Action (Abatement of a Public Nuisance) in DTSC's Fourth Amended Complaint (Document 1145, filed 7/22/2010) ("Fourth Amended Complaint"). Pursuant to the April 2010 Consent Decree (see, Exhibit A to Declaration of Sandra Goldberg in Support of Plaintiff's Motion for Approval and Entry of Consent Decree, Document 1 REQUEST FOR DISMISSAL AND [PROPOSED] ORDER (CIV-S-02-0018 GEB-GGH) Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 # 1100, filed April 1, 2010), approved by the Court on April 28, 2010 (Document # 1120), DTSC has recovered funds that it will use to remediate the Brighton Oil Site (as defined in the Fourth Amended Complaint at paragraphs 4 and 5). Accordingly, DTSC will not seek relief from the remaining defendants under the Second and Third Causes of Action, which seek injunctive relief under state laws. This dismissal has no affect on DTSC's First Cause of Action in the Fourth Amended Complaint which seeks recovery of past response costs and declaratory judgment on liability for future response costs under Sections 107 and 113(g)(2) of CERCLA, 42. U.S.C. 9607 and 9613(g)(2). Further, this dismissal also has no effect on the Counterclaims filed by defendants John L. Sullivan Chevrolet, Inc. and Gordon Turner Motors seeking contribution and apportionment under Section 113 of CERLCA. (Answer and Counterclaim to Fourth Amended Complaint By Defendants John L. Sullivan Chevrolet, Inc. and Gordon Turner Motors, Documents ## 1163 and 1164, filed September 22, 2010). Dated: October 5, 2010 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California MARGARITA PADILLA Supervising Deputy Attorney General /s/ Sandra Goldberg, Esq. SANDRA GOLDBERG Deputy Attorney General Attorneys for Plaintiff California Department of Toxics Substance Control Plaintiff's Second and Third Causes of Action in the Fourth Amended Complaint are hereby dismissed. IT IS SO ORDERED. 10/5/10 GARLAND E. BURRELL, JR. United States District Judge 2 REQUEST FOR DISMISSAL AND [PROPOSED] ORDER (CIV-S-02-0018 GEB-GGH)

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