California Department of Toxic Substances Control et al v. Jim Dobbas, Inc. et al

Filing 170

ORDER signed by Senior Judge William B. Shubb on 7/6/17, ORDERING that 156 Motion for Partial Summary Judgment is GRANTED as follows: (1) Defendant Van Over is jointly and severally liable for costs plaintiffs incurred and may incur in the future in responding to the release and threatened release of hazardous chemicals at the Elmira site, to the extent recovery of such costs is authorized under CERCLA. (2) The amount of past response costs plaintiffs are authorized to recover under CERCLA is yet to be determined. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
----oo0oo----

11
12
13
14

CALIFORNIA DEPARTMENT OF
TOXIC SUBSTANCES CONTROL and
TOXIC SUBSTANCES CONTROL
ACCOUNT,

CIV. NO. 2:14-0595 WBS EFB
ORDER RE: MOTION FOR PARTIAL
SUMMARY JUDGMENT

Plaintiffs,

15
16
17

v.
DAVID VAN OVER,
Defendant.

18
19

----oo0oo----

20

Plaintiffs California Department of Toxic Substances

21
22

Control and Toxic Substances Control Account brought this action

23

against defendant David Van Over,1 seeking recovery of costs they

24
25
26
27
28

1

Five other defendants--Jim Dobbas, Inc.; Continental
Rail, Inc.; Pacific Wood Preserving; West Coast Wood Preserving,
LLC; and Collins & Aikman Products, LLC--were named in this
action. (First Am. Compl. ¶¶ 9-10, 12-14 (Docket No. 77).) Jim
Dobbas and West Coast Wood Preserving have settled their
liability with plaintiffs. (Docket Nos. 141 and 150.) Default
judgments have been entered against Continental Rail, Pacific
Wood Preserving, and Collins & Aikman Products. (Docket Nos. 18,
1

1

incurred and declaratory relief for costs they may incur in the

2

future in responding to the release and threatened release of

3

hazardous chemicals on property owned by defendant Van Over.

4

(Compl. (Docket No. 1).)

5

The property in question is located at 147 A Street,

6

Elmira, California (“the Elmira property”).

7

MacNicholl ¶ 2 (Docket No. 144).)

8

the Elmira property since February 2011.

9

Stanley ¶ 10 (Docket No. 161).)

(See Decl. of Peter

Defendant Van Over has owned
(See Decl. of Deena

He has not, to date, taken

10

actions requested by plaintiffs to address or reimbursed the

11

costs plaintiffs have expended in addressing release and

12

threatened release of hazardous chemicals on the property.

13

id. ¶¶ 10, 15.)

14

(See

Plaintiffs now move for partial summary judgment

15

against defendant Van Over, seeking a declaration that he is

16

jointly and severally liable for costs they incurred and may

17

incur in the future in responding to the release and threatened

18

release of hazardous chemicals at the Elmira property (“response

19

costs”), to the extent recovery of such costs is authorized under

20

CERCLA.

21

determination, at this time, of the amount of past response costs

22

they are authorized to recover under CERCLA.

23

Mem. at 6, 16 (Docket No. 163).)

24

costs they are authorized to recover under CERCLA, plaintiffs

25

state, is to “be determined either by further motion or at trial

26

of this matter.”

27
28

(Pls.’ Mot. (Docket No. 156).)

19, and 129.)
action.

Plaintiffs do not seek a

(See Pls.’ Mot.,

The amount of past response

(See id.; Pls.’ Proposed Order at 3 (Docket No.

Van Over is the only defendant remaining in this
2

1

162).)

2

Defendant has filed a statement representing that he

3

does not oppose the granting of plaintiffs’ Motion, except that

4

he requests the court note, in this Order, that “Plaintiff[s]

5

still must prove that the particular alleged response costs for

6

which [they] claim[] reimbursement come within CERCLA’s

7

definition of a recoverable response cost.”

8
9
10
11

(Docket No. 168.)

IT IS THEREFORE ORDERED that plaintiffs’ Motion for
partial summary judgment (Docket No. 156) be, and the same hereby
is, GRANTED as follows:
(1)

Defendant Van Over is jointly and severally liable for

12

costs plaintiffs incurred and may incur in the future

13

in responding to the release and threatened release of

14

hazardous chemicals at the Elmira site, to the extent

15

recovery of such costs is authorized under CERCLA.

16

(2)

The amount of past response costs plaintiffs are

17

authorized to recover under CERCLA is yet to be

18

determined.

19

Dated:

July 6, 2017

20
21
22
23
24
25
26
27
28
3