Lewis, et al v. Russell, et al

Filing 539

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 2/6/2018 GRANTING 533 Motion for Summary Judgment. (Washington, S) Modified on 2/6/2018 (Washington, S).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES H. LEWIS and JANE W.
LEWIS,
Plaintiffs,

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v.

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Defendants.

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MEMORANDUM AND ORDER RE: MOTION
FOR SUMMARY JUDGMENT

ROBERT D. RUSSELL, et. al.,

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Civ. No. 03-2646 WBS AC

This action arises out of soil and groundwater
contamination allegedly resulting from the release of a dry
cleaning solvent.

Presently before the court is defendant City

of Davis’s Motion for summary judgment against cross-claimants
Jung Hang Suh and Soo Jung Suh (collectively, the “Suhs”).
(Docket No. 533.)
I.

Factual and Procedural Background
On December 9, 2003, Charles H. Lewis and Jane H. Lewis

(“plaintiffs”) brought suit under, inter alia, the Comprehensive
Environmental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. Sections 9601 et seq., against the City of

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Davis (“the City”) and other defendants, including the Suhs,

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seeking to recover costs allegedly incurred in response to

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hazardous substance contamination at and around the real property

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located at 670 G Street, Davis, California (the “property”).

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(Decl. of Jennifer Hartman King (“King Decl.”) ¶ 2 (Docket No.

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533-2); Second Am. Compl. (“SAC”) at 1 (Docket No. 197).)

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cleaning business has been located at the property since at least

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1964.

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the dry cleaning business at the property for approximately nine

(SAC ¶ 29.)

A dry

Starting in 1996, the Suhs owned and operated

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years.

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Jung Suh to First Am. Compl. (“Suhs Answer”) (Docket No. 13).)

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(King Decl. ¶ 4; Answer of Defs. Jung Hang Suh and Soo

On October 2, 2002, the Central Valley Regional Water

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Quality Control Board issued Cleanup and Abatement Order R5-2002-

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0721 (“Cleanup Order”) requiring the investigation and cleanup of

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the hazardous substance contamination at and around the property.

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(King Decl. ¶ 3; SAC ¶ 42.)

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the Suhs, and other current or former dry cleaner operators at

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the property, in addition to the landowners, as parties

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responsible for the cleanup and remediation.

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The Cleanup Order stated that perchloroethylene (“PCE”) and its

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breakdown product, trichloroethylene, were detected in the soil

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and groundwater at and around the property.

The Cleanup Order named the Lewises,

(King Decl. ¶ 4.)

(Id. ¶ 10.)

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On May 14, 2004, the Suhs filed cross-claims against

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the City, among others, seeking cost recovery and contribution

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under CERCLA, and asserting claims of negligence, nuisance, and

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indemnity, and seeking attorneys’ fees under Code of Civil

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Procedure section 1021.6 and declaratory relief.

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(Docket No. 13).)

(Cross-Cl.

The Suhs alleged that the release or
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threatened release of any hazardous substance and damages at the

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property was caused solely by the acts or omissions of prior

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owners, operators, and property managers of the property.

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Answer at 13.)

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(Suhs

On October 15, 2005, the Suhs filed for bankruptcy, and

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as a result of the Suhs’ bankruptcy case, the court stayed the

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action as to all parties.

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Bankruptcy Stay (Docket No. 301).)

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following the Suhs’ bankruptcy discharge on September 16, 2010,

(See Mem. and Order re: Automatic
On January 19, 2011,

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the court ordered the bankruptcy stay dissolved.

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re: Motion to Stay and to Lift Stay (Docket No. 333).)

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(Mem. and Order

The City alleges that since the Suhs first appeared in

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the action and filed cross-claims against the City, the Suhs have

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completely failed to litigate their claims, and have failed to

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put forward any evidence in support of their allegations.

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Decl. ¶ 14.)

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to do so, the Suhs have not designated any expert witnesses.

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(Id. ¶¶ 20-21.)

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City’s Requests for Admissions, Requests for Production, or

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Interrogatories served on August 22 and 23, 2016 and April 27,

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2017. (Id. ¶¶ 24-25, 28, Exs. A, B, C, E, F.)1

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2017 the City moved for summary judgment.

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an opposition to the City’s Motion.

(King

For instance, despite the March 14, 2016 deadline

In addition, the Suhs have not responded to the

On December 17,

The Suhs did not file

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On April 27, 2017, the City mailed a certified letter
to the Suhs serving copies of the previously served Requests for
Admissions and extending the time for the Suhs to respond. (Id.
¶¶ 31-33; Exs. G and H.) The City informed the Suhs that failure
to respond to the City’s Request for Admissions would cause the
facts that are the subject of the Requests for Admissions, to be
deemed admitted. (Id.)
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II.

Legal Standard

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Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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of the action, and a genuine issue is one for which a reasonable

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jury could find in favor of the non-moving party.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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bears the initial burden of establishing the absence of a genuine

Fed. R. Civ.

A material fact is one that could affect the outcome

Anderson v.

The moving party

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issue of material fact.

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322-23 (1986).

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that negates an essential element of the non-moving party’s case

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or demonstrating that the non-moving party cannot produce

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evidence to support an essential element for which it will bear

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the burden of proof at trial.

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its burden, the burden shifts to the non-moving party to

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“designate specific facts showing that there is a genuine issue

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[of material fact] for trial.”

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Celotex Corp. v. Catrett, 477 U.S. 317,

It can satisfy that burden by presenting evidence

Id.

Once the moving party meets

Id. at 324.

“Even when a summary judgment motion is unopposed, a

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district court must determine whether summary judgment is

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appropriate--that is, whether the moving party has shown itself

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to be entitled to judgment as a matter of law.”

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Colosimo, Civ. No. 2:13-264 TLN DB, 2017 WL 1198653, at *1 (E.D.

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Cal. Mar. 31, 2017) (citations and internal quotations omitted.)

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“A court ‘need not sua sponte review all of the evidentiary

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materials on file at the time the motion is granted, but must

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ensure that the motion itself is supported by evidentiary

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materials.’”

McClintock v.

Leramo v. Premier Anesthesia Med. Grp., No., Civ.
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No. 09-2083 LJO JTL, 2011 WL 2680837, at *8 (E.D. Cal. July 8,

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2011) (quoting United States v. One Piece of Real Prop., etc.,

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363 F.3d 1099, 1101 (11th Cir. 2004)).

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Under Federal Rule of Civil Procedure 36, “A matter is

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admitted unless, within 30 days after being served, the party to

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whom the request is directed serves on the requesting party a

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written answer or objection addressed to the matter and signed by

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the party or its attorney.”

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admitted, the matter “is conclusively established unless the

Fed. R. Civ. P. 36(a)(3).

Once

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court, on motion, permits the admission to be withdrawn or

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amended.”

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for admission may be relied upon in granting summary judgment.

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See, e.g., O'Campo v. Hardisty, 262 F.2d 621, 623–24 (9th Cir.

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1958) (affirming summary judgment based on unanswered requests

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for admissions); Conlon v. United States, 474 F.3d 616, 621 (9th

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Cir. 2007) (“Unanswered requests for admissions may be relied on

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as the basis for granting summary judgment.”).

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III. Discussion

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Fed. R. Civ. P. 36(b).

A party’s unanswered requests

The City relies on the Suhs’ failure to respond to

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their requests for admission to establish that it is not liable

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on the cross claims asserted against it by the Suhs.

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Mem. at 11.)

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A.

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(Def.’s

CERCLA
The Suhs allege a cross-claim against the City for

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violating CERCLA.

(Cross-cl. ¶¶ 10-14 (Docket No. 13).)

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establish a prima facie case under CERCLA, the Suhs must

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demonstrate:

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To

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(1) the site on which the hazardous substances are contained
is a “facility” as defined by 42 U.S.C. § 9601(9); (2) a
“release” or “threatened release” of any “hazardous
substance” from the facility has occurred; (3) such
“release” or “threatened release” has caused the plaintiff
to incur response costs that were “necessary” and
“consistent with the national contingency plan”; and (4) the
defendant is within one of four classes of “potentially
responsible parties” subject to the liability provisions of
§ 9607(a).
Coppola v. Smith, 19 F. Supp. 3d 960, 969 (E.D. Cal. 2014).

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Here, the Suhs’ failure to deny the City’s requests for
admission means that they are deemed to have admitted that they

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have no evidence that the City released PCE from the City’s sewer

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mains or at the real property.

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Nos. 1-8.)

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the court must grant summary judgment to the City on the CERCLA

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claim.

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B.

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(King Decl., Exs. A, H Request

Thus, there is no triable issue of material fact, and

Negligence
The Suhs allege a negligence cross-claim against the

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city.

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for negligence, the Suhs must establish: “(a) a legal duty to use

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due care; (b) a breach of such legal duty; (c) the breach as the

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proximate or legal cause of the resulting injury.”

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AEG Live, LLC, 233 Cal. App. 4th 1156, 1173 (2d Dist. 2015).

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(Cross-Cl. ¶¶ 15-18).

To establish a prima facie claim

Jackson v.

Here, the Suhs are deemed to have admitted that they

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have no evidence that the City negligently controlled, managed,

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owned, or monitored the property and that the City has not

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negligently managed, controlled, owned, or monitored the

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property. (See King Decl., Exs. A, H Request Nos. 9-24.)

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the Suhs have failed to present any evidence to support the

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Thus,

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elements of negligence.

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of material fact and the court will grant summary judgment to the

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City on the Suhs’ negligence claim.

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C.

Accordingly, there is no triable issue

Nuisance

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The Suhs allege a nuisance cross-claim against the

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city.

(Cross-Cl. ¶¶ 19-23.)

“A nuisance is: anything that is

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injurious to health, . . . or is indecent or offensive to the

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senses, or an obstruction to the free use of property, [that]

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interfere[s] with the comfortable enjoyment of life or property,

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or unlawfully obstructs the free passage or use, in the customary

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manner.”

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Dist. 2005) (citation omitted).

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In re Firearm Cases, 126 Cal. App. 4th 959, 987 (1st

The Suhs are deemed to have admitted the City has not

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caused conditions at the real property that were, at any time,

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injurious to health.

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addition, the Suhs are deemed to have admitted that the City has

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not caused conditions at the real property that were, at any

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time, offensive to the senses, or interfered with the comfortable

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enjoyment of life or property.

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the Suhs are deemed to have admitted the City has not caused a

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nuisance at the real property.

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32.)

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the court must grant summary judgment to the City on the Suhs’

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nuisance claim.

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(King Decl., Exs. A, H Request No. 25)

(Id. Request Nos. 27-29.)

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Thus,

(Id. Request Nos. 25, 27, 29, 31-

Accordingly, there is no triable issue of material fact and

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Indemnity
The Suhs also demand indemnification from the City

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should any other party in the litigation be entitled to recover

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any amount from the Suhs, claiming that any liability is the
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direct result of acts and omissions of cross-defendants. (Cross-

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Cl. ¶¶ 24-26.)

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of a claim for indemnity and admit that they are not entitled to

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indemnification from the City.

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Nos. 36, 40)

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fail.

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the Suhs’ demand for indemnification.

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The Suhs have put forward no evidence in support

(King Decl., Exs. A, H Request

Thus, the Suhs request for indemnification must

Accordingly, the City is entitled to summary judgment on

E.

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Attorneys’ Fees
The Suhs demand attorneys’ fees pursuant to California

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Code of Civil Procedure 1021.6. (Cross-Cl. ¶¶ 27-29.)

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are deemed to have admitted that they are not entitled to an

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award of attorneys’ fees from the City, and have put forward no

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evidence supporting this claim.

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No. 41.)

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and the court must grant summary judgment for the City as to this

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request.

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F.

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The Suhs

(King Decl., Exs. A, H Request

Therefore, the Suhs are not entitled to attorneys’ fees

Declaratory Relief
The Suhs also request declaratory relief--in the form

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of a declaration that cross-defendants are obligated to

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indemnify, hold harmless, and release the Suhs from and against

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any and all claims arising out of or relating to the presence of

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the property of hazardous substances and other substances.

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(Cross-Cl. ¶¶ 30-31, Prayer for Relief).

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presented no evidence in support of their claims and are deemed

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to have admitted that the City is not liable to the Suhs on any

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of their claims, the Suhs are not entitled to declaratory relief

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and the court must grant summary judgment to the City as to this

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request.
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Because the Suhs have

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Based on the Suhs’ deemed admissions and the failure to

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present any evidence in support of their cross-claims, there are

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no triable issues of fact as to any of the Suhs’ cross-claims.

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Therefore, the court grants summary judgment in favor of the City

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on all cross-claims asserted by the Suhs against the City.

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IT IS THEREFORE ORDERED, that the motion of the City of

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Davis for summary judgment on all cross-claims asserted by the

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Suhs against the City (Docket No. 533) be, and hereby is,

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GRANTED.

Nothing in this Order shall be deemed to constitute a

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finding with regard to the City’s liability on any claim or

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cross-claim of any other party.

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Dated:

February 6, 2018

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