City of West Sacramento, et al., v. R and L Business Management et al

Filing 18

MEMORANDUM AND ORDER RE: 10 MOTION TO DISMISS signed by Senior Judge William B. Shubb on 6/27/2018: IT IS ORDERED that 10 defendants Richard Leland and Sharon Lelands' Motion to Dismiss Plaintiffs' Complaint be, and hereby is, GRANTED. Plaintiffs have twenty days from the date this Order is signed to file a First Amended Complaint, if they can do so consistent with this Order. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CITY OF WEST SACRAMENTO,
CALIFORNIA; and PEOPLE OF THE
STATE OF CALIFORNIA,
Plaintiffs,

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No. 2:18-cv-900 WBS EFB

MEMORANDUM AND ORDER RE:
MOTION TO DISMISS

v.
R AND L BUSINESS MANAGEMENT, a
California corporation, f/k/a
STOCKTON PLATING, INC., d/b/a
CAPITOL PLATING, INC., a/k/a
CAPITOL PLATING, a/k/a CAPITAL
PLATING; CAPITOL PLATING INC., a
dissolved California
corporation; ESTATE OF GUS
MADSACK, DECEASED; ESTATE OF
CHARLES A. SCHOTZ a/k/a SHOTTS,
DECEASED; ESTATE of E. BIRNEY
LELAND, DECEASED; ESTATE OF
FRANK E. ROSEN, DECEASED; ESTATE
OF UNDINE F. ROSEN, DECEASED;
ESTATE of NICK E. SMITH,
DECEASED; RICHARD LELAND, an
individual; SHARON LELAND, an
individual; ESTATE OF LINDA
SCHNEIDER, DECEASED; JUDY GUESS,
an individual; JEFFREY A. LYON,
an individual; GRACE E. LYON, an
individual; THE URBAN FARMBOX
LLC, a suspended California
limited liability company; and
DOES 1-50, inclusive,
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Defendants.

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This action arises out of soil and groundwater

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contamination allegedly resulting from the release of hazardous

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substances at a property once occupied by a metal plating

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facility.

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Leland and Sharon Leland’s Motion to Dismiss the Complaint for

Presently before the court is defendants Richard

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failure to state a claim upon which relief may be granted

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pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule

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12(b)(6)”).

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I.

Factual and Procedural History
Beginning in the 1950s until September 1985, a metal

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plating business operated continuously on the real property

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located at 319 3RD Street, West Sacramento, California (the

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“property”).

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Sharon and Richard Leland (“the Lelands”) are individuals, former

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owners, operators, officers, directors, and/or shareholders of

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Capitol Plating, a metal plating business that operated at the

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property from 1961 to at least 1985, and current owners,

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officers, directors, and/or shareholders of R and L Business

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Management. (Id. ¶ 18.)

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California corporation and former owner and operator of Capitol

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Plating and is the successor in interest and the successor in

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title to Stockton Plating, Inc. which owned and operated Capitol

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Plating.1

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(Compl. ¶¶ 4, 32 (Docket No. 1).)

Defendants

R and L Business Management is a

(Id. ¶ 14.)
Plaintiffs allege that Gus Madack owned and operated
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On May 2, 1986, the Yolo County Department of Health

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Services inspected the property and issued a Notice of

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Noncompliance regarding elevated levels of heavy metals at the

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site.

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been tested several times and these tests have confirmed the

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presence of elevated levels of numerous contaminants in the soil

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and groundwater at the site.

(Id. ¶ 37.)

Since the initial inspection, the site has

(Id. ¶ 38.)

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Plaintiffs allege that Capitol Plating is the source of

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the contaminants and that each defendant caused or contributed to

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the contamination.

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that the contamination occurred at the property as the result of

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numerous spills, leaks, discharges, and disposal of hazardous

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substances, and during the subsequent removal of the plating

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equipment and chemical solutions from the property.

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41.)

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continues to cause harm to the public health and the environment.

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(Id. ¶ 44.)

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decades about the contamination and have failed and refused to

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perform or fund an investigation and cleanup of the property.

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(See id. ¶¶ 46-47.)

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(Id. ¶¶ 39, 43.)

Plaintiffs further allege

(Id. ¶¶ 40-

Plaintiffs claim that the contamination caused and

Defendants have allegedly known for over three

On April 12, 2018, plaintiffs the City of West
Sacramento, California (“the City”) and the People of the State

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Capitol Plating from 1950 to the mid-1950s. (Compl. ¶ 11.)
Charles Schotz owned and operated the business from the mid1950’s to 1961. (Id. ¶ 12.) Capitol Plating, Inc. owned and
operated the business from 1960 to at least 1985. (Id. ¶ 13.)
Stockton Plating owned and operated Capitol Plating Inc. from
1961 to at least 1985. (See id. ¶ 12.) R & L Business
Management is the successor-in-interest and successor-in title to
Stockton Plating. (See id.)
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of California (collectively “plaintiffs”) filed a Complaint

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against defendants, including the Lelands, alleging the

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following: (1) violation of the Resource Conservation and

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Recovery Act (“RCRA”) § 7002(a), 42 U.S.C. § 6972(a)(1)(B); (2)

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violation of the Comprehensive Environmental Response,

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Compensation and Liability Act (“CERCLA”) § 107(a), 42 U.S.C. §

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9607(a); (3) violation of The Gatto Act, California Health &

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Safety Code §§ 25403-25403.8; (4) violation of The Porter-Cologne

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Water Quality Control Act, Cal. Water Code § 1304(c); (5) public

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nuisance; (6) trespass; (7) negligence; (8) ultrahazardous

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activity; (9) statutory indemnity; and (10) declaratory relief.

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Plaintiffs seek declaratory relief and costs allegedly incurred

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in response to soil and ground water contamination at and around

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the property.

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II.

Legal Standard

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On a Rule 12(b)(6) motion, the inquiry before the court

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is whether, accepting the allegations in the complaint as true

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and drawing all reasonable inferences in the plaintiff’s favor,

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the plaintiff has stated a claim to relief that is plausible on

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its face.

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plausibility standard is not akin to a ‘probability requirement,’

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but it asks for more than a sheer possibility that a defendant

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has acted unlawfully.”

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when the plaintiff pleads factual content that allows the court

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to draw the reasonable inference that the defendant is liable for

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the misconduct alleged.”

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pleaded complaint may proceed even if it strikes a savvy judge

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that actual proof of those facts is improbable.”

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Id.

“The

“A claim has facial plausibility

Id.

Under this standard, “a well-

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Bell Atl. Corp.

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v. Twombly, 550 U.S. 544, 556 (2007).

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III. Discussion

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A.

Federal Claims

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1. CERCLA

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CERCLA is a “comprehensive statute that grants the

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President broad power to command government agencies and private

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parties to clean up hazardous waste sites,” and permits “a

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private party [to] recover expenses associated with cleaning up

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contaminated sites.”

City of Colton v. Am. Promotional Events,

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Inc.-W., 614 F.3d 998, 1002 (9th Cir. 2010) (citations omitted).

11

To establish a prima facie case under CERCLA, plaintiffs must

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demonstrate: (1) the site on which the hazardous substances are

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contained is a “facility”; (2) a “release” or “threatened

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release” of any “hazardous substance” from the facility has

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occurred; (3) such “release” or “threatened release” caused the

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plaintiffs to incur response costs that were “necessary” and

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“consistent with the national contingency plan”; and (4) the

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defendants are within one of four classes of “potentially

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responsible parties” subject to the liability provisions of §

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9607(a).

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Cal. 2014) (Ishii, J.) (citing City of Colton, 614 F.3d at 1002).

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See Coppola v. Smith, 19 F. Supp. 3d 960, 969 (E.D.

One of the four classes of responsible parties is “any

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person who at the time of disposal of any hazardous substance

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owned or operated any facility at which such hazardous substances

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were disposed of.”

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defines “person” to include “an individual.”

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Craighead, 552 F. Supp. 2d 1056, 1072 (E.D. Cal. 2008) (Shubb,

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J.) (citing 42 U.S.C. § 9601(20)(A), (21)). “Because ‘Congress

42 U.S.C. § 9607(a)(2).

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CERCLA further
See Schwarm v.

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could have limited the statutory definition of ‘person’ [to

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exclude corporate shareholders and officers,] but chose not to,’

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every circuit court that has addressed the issue has held that

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CERCLA imposes personal liability on shareholders, officers, and

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directors without requiring a plaintiff to pierce the corporate

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veil.”

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Id.

(citations omitted).

Here, the parties do not dispute whether plaintiff has

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adequacy pled the first three requirements; however, defendants

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argue that plaintiffs have not alleged sufficient facts to

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establish direct or personal “owner or operator” liability based

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on the Lelands own actions.

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a.

Owner Liability

Defendants move to dismiss plaintiffs’ CERCLA claim

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because plaintiffs have not shown that defendants were “owners”

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of the facility.

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CERCLA defines “owner or operator” as “any person

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owning or operating such facility” but excludes any “person, who,

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without participating in the management of a vessel or facility,

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holds indicia of ownership primarily to protect his security

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interest in the vessel or facility.”

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“The property of the corporation is its property, and not that of

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the stockholders, as owners.”

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Bldg. Prod., Inc., 931 F.2d 327, 330 (5th Cir. 1991) (quoting 1

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C. Keating & G. O’Gradney, Fletcher Cyclopedia of the Law of

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Private Corporations § 31 at 555 (1990)).

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42 U.S.C. § 9601 20(A)(ii).

Riverside Mkt. Dev. Corp. v. Int’l

Here, plaintiffs assert that the Lelands are liable as

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owners under CERCLA.

Plaintiffs appear to rely on the Lelands’

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status as shareholders to impose liability on them as owners.
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(See Compl. ¶ 18.)

However, the Lelands’ “shareholder status

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alone is not enough to make them owners for liability purposes

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under CERCLA.”

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Co., 807 F. Supp. 144, 150 (D. Me. 1992); see also Riverside, 931

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931 F.2d at 330 (stating that individual defendant’s position as

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majority shareholder of the corporate entity did not make him an

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owner, under CERCLA, of the asbestos manufacturing plant, because

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the plant was purchased by the corporate entity and not by the

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individual defendant).

See Robertshaw Controls Co. v. Watts Regulator

Thus, to the extent that plaintiffs rely

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on the defendants’ status as shareholders, the court will grant

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defendants’ Motion to Dismiss plaintiffs’ CERCLA claim based on

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“owner” liability.

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b.

Operator Liability

Defendants move to dismiss plaintiffs’ CERCLA claim

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because plaintiffs have not shown that defendants were

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“operators” of the facility.

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Given the circular definition of “operator” in the

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statute, the Supreme Court clarified that “under CERCLA, an

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operator is simply someone who directs the workings of, manages,

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or conducts the affairs of a facility.”

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Bestfoods, 524 U.S. 51, 66 (1998).

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in the CERCLA context “must manage, direct, or conduct operations

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specifically related to pollution, that is, operations having to

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do with the leakage or disposal of hazardous waste, or decisions

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about compliance with environmental regulations.”

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Furthermore, the Supreme Court has held that “a corporate parent

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that actively participated in, and exercised control over the

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operations of the facility itself may be held directly liable in
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United States v.

In other words, an operator

Id. at 66-67.

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its own right as an operator of the facility.”

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Alternatively stated, a parent corporation or individual may be

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held directly liable as an operator for their own actions.

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id. at 65.

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Id. at 55.

See

In determining whether an individual is an “operator”

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under CERCLA, “[c]ourts have struggled with the level of control

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necessary to support operator liability, some settling on a

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narrower ‘actual control’ standard, see United States v. Township

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of Brighton, 153 F.3d 307, 313-14 (6th Cir. 1996) (requiring

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affirmative acts from a purported operator), while others have

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adopted a broader ‘authority to control’ standard, see Nurad Inc.

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v. William E. Hooper & Sons Co., 966 F.2d 837, 842 (4th Cir.

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1992) (requiring only the existence of authority to act).”

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Dep’t of Toxic Substances Control v. Jim Dobbas, Inc., No. 2:14-

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595 WBS EFB, 2014 WL 4627248, at *3 (E.D. Cal. Sept. 16, 2014)

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(alteration in original).

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Cal.

Here, plaintiffs allege that the Lelands are

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individuals, former owners, operators, and/or shareholders of

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Capitol Plating, and current owners, officers, directors, and/or

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shareholders of R & L Business Management. (Compl. ¶ 18.)

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Plaintiffs further allege that:

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[t]he remaining defendants [including the Lelands] are
liable . . . because they each used, handled, stored,
treated, transported, and/or disposed of, or arranged
for others to do so, or exercised substantial
influence and control over the use, handling, storage,
transport, and/or disposal of the Contaminants at the
Property, and because they each owned and/or operated
the metal plating business . . . at a time when the
Contaminants were disposed of at the Property.

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(Id. ¶ 74.)

Thus, plaintiffs allege that each defendant is

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liable under CERCLA.

(Id. ¶ 75.)
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However, plaintiffs allege no specific facts to

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demonstrate that the Lelands’ “direct[ed] the workings of,

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manage[d], or conduct[ed] the affairs of a facility,” to

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establish that the Lelands were “operators” of the facility under

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CERCLA.

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defendant is liable as operators under CERLA is not entitled to a

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presumption of truth.

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Chevron U.S.A., Inc., 805 F. Supp. 2d 888, 897 (N.D. Cal. 2011)

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(allegation that Chevron was responsible for the releases as a

Furthermore, plaintiffs’ conclusory allegation that each

See Gregory Vill. Partners, L.P. v.

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former owner/operator of the facility at the time of the releases

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pursuant to 42 U.S.C. § 9607(a)(2) was a legal conclusion that

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was not entitled to a presumption of truth).

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of which standard of operator liability applies, plaintiffs have

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not alleged sufficient facts to hold the Lelands directly liable

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as operators under CERCLA.

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Thus, regardless

Accordingly, the court will grant defendants’ Motion to

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Dismiss plaintiffs’ CERCLA claim based on a theory of direct

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“owner or operator” liability.

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2.

RCRA

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Defendants also move to dismiss plaintiffs’ RCRA claim.

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“RCRA is a comprehensive environmental statute that governs the

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treatment, storage, and disposal of solid and hazardous waste.”

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Meghrig v. KFC W., Inc., 516 U.S. 479, 483, (1996).

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6972(a)(1)(B) of the RCRA permits a private party to sue certain

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responsible persons, including past or present owners or

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operators, “who ha[ve] contributed or who [are] contributing to

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the past or present handling, storage, treatment, transportation,

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or disposal of any solid or hazardous waste which may present an
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Section

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imminent and substantial endangerment to health or the

2

environment.”

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“RCRA does not itself define what acts of contribution are

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sufficient to trigger liability.”

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654 F.3d 846, 850 (9th Cir. 2011).

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has held “that to state a claim predicated on RCRA liability for

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‘contributing to’ the disposal of hazardous waste, a plaintiff

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must allege that the defendant had a measure of control over the

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waste at the time of its disposal or was otherwise actively

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See id. (quoting 42 U.S.C. § 6972(a)(1)(B)).

The

Hinds Invs., L.P. v. Angioli,
However, the Ninth Circuit

involved in the waste disposal process.”

Id. at 852.

Here, plaintiffs allege that defendants are liable
under RCRA, 42 U.S.C. § 6972 (a)(1)(B), because:
each defendant caused or contributed to the past or
present handling, treatment, transportation, or
disposal of the Contaminants . . . and because each
defendant either released or otherwise discarded, or
caused or contributed to the release or discarding of,
the Contaminants in the environment. . . or owned and
controlled the Property when, and at which, those
Contaminants were released or otherwise discarded, but
failed to prevent or abate such contamination.

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(Compl. ¶ 61).

Plaintiffs further allege that the contaminants

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at the site “present or may present imminent and substantial

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endangerment to human health or the environment.”

(Id. ¶ 57.)

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Plaintiffs’ allegations are conclusory recitations of

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the elements “devoid of further factual enhancement” and do not

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sufficiently allege an RCRA claim.

24

& Envtl. Servs., No. 17-cv-2013 AJB MDD, 2018 WL 2086155, at *3

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(S.D. Cal. May 4, 2018) (dismissing plaintiffs’ RCRA claim where

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plaintiff simply pleads: (1) that all of the defendants

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contributed to the generation, handling, storage, treatment,

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transportation and disposal of solid waste; (2) that defendants
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See Ingalls v. AMG Demolition

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are past and present generators and transporters; (3) that they

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contributed to the disposal; and (4) that the past and ongoing

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generation and disposal of the solid waste by defendants may

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present an imminent and substantial endangerment to the

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environment).

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“[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.”

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556 U.S. at 678.

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facts to hold defendants liable under RCRA, the court will grant

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Again, to survive a motion to dismiss,

Iqbal,

Because plaintiffs’ Complaint lacks sufficient

defendants’ Motion to Dismiss plaintiffs’ RCRA claim.
B.

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Indirect Liability: Piercing the Corporate Veil
Defendants assert that plaintiffs’ Complaint contains

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only a conclusory recitation of the elements required in order to

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pierce the corporate veil, and thus claims that rely on this

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theory should be dismissed.

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It is a general principle of corporate law that a

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parent corporation is not liable for the acts of its

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subsidiaries.

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corporate veil may be pierced and the shareholder held liable for

20

the corporation’s conduct when, inter alia, the corporate form

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would otherwise be misused to accomplish certain wrongful

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purposes . . . .”2

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See Bestfoods, 524 U.S. at 61.

However, “the

See id. at 62.

To pierce the corporate veil, a plaintiff must show:

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“(1) that there be such unity of interest and ownership that the

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separate personalities of the corporation and the individual no

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27
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Under CERCLA, “when (but only when) the corporate veil
may be pierced, may a parent corporation be charged with
derivative CERCLA liability for its subsidiary’s actions.” See
id. at 63-64.
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2

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longer exist, and (2) that, if the acts are treated as those of

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the corporation alone, an inequitable result will follow.”

3

Associated Vendors, Inc. v. Oakland Meat Co., 210 Cal. App. 2d

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825, 837 (1st Dist. 1962).

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different factors to show “unity of interest,” including the

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“commingling of funds and other assets . . . the holding out by

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one entity that it is liable for the debts of the other,

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identical equitable ownership . . . use of the same offices and

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employees, and use of one as a mere shell or conduit for the

A court may consider a number of

10

affairs of the other.”

11

Court, 15 Cal. App. 3d 405, 411 (1st Dist. 1971) (citing

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Associated Vendors, 210 Cal. App. 2d at 838—39).

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non-exclusive, and California courts have relied on a host of

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other factors in finding alter ego liability as well.”

15

v. Warner Bros. Entm’t Inc., 116 F. Supp. 3d 1104, 1137 (C.D.

16

Cal. 2015).

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20
21
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23

Roman Catholic Archbishop v. Superior

“This list is

Gerritsen

Here, plaintiff alleges that:
each operator defendant . . . was the alter ego of the
corporate entity . . . because, inter alia, of their
controlling interests in the corporation, their
complete dominance and control over the corporation
that no separateness or individuality between them and
the corporation existed and their failure to follow
and adhere to the formalities required for the
corporation’s existence. Therefore, failure to
“pierce the corporate veil” and hold these individual
defendants liable . . . would result in injustice and
prejudice to the Plaintiffs.

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(Compl. ¶ 35.)

Again, plaintiffs’ allegations are no more than a

25

recitation of the elements, and “[c]onclusory allegations of

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‘alter ego’ status are insufficient to state a claim.

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plaintiff must allege specific facts supporting both of the

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necessary elements.”

Rather, a

See Gerritsen, 116 F. Supp. 3d at 1136.
12

1

Here, plaintiffs do not allege any specific facts supporting

2

their allegation that there was no separateness between the

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Lelands and the Corporation.

4

defendants’ Motion to Dismiss plaintiffs’ claims that are

5

premised on the application of the corporate veil piercing

6

doctrine.

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9

C.

Accordingly, the court will grant

State Causes of Action
1.

The Gatto Act

Plaintiffs allege that defendants violated The Gatto

10

Act, California Health & Safety Code §§ 25403-25403.8.

The Gatto

11

Act is “the policy successor to the now-repealed Polanco

12

Redevelopment Act . . . and [is] interpreted and implemented

13

consistent with that act.”

14

The Gatto Act permits a local agency to “take any action that the

15

local agency determines is necessary and that is consistent with

16

other state and federal laws to investigate or clean up a release

17

on, under, or from blighted property . . . within the local

18

agency’s boundaries due to the presence of hazardous materials”

19

following an environmental assessment.

20

further provides that “if a local agency undertakes action to

21

investigate property or clean up . . . a release of hazardous

22

material, the responsible party shall be liable to the local

23

agency for the costs incurred in the action.”

24

responsible party includes “those described in Section 107(a) of

25

CERCLA,” and thus includes “any person who at the time of

26

disposal of any hazardous substance owned or operated any

27

facility at which such hazardous substances were disposed of.”

28

See 42 U.S.C. § 9607(a)(2); Cal. Health & Safety Code §§ 25323.5,

Cal. Health & Safety Code § 25403.8.

13

Id. § 25403.1.

It

Id. § 25403.5.

A

1

25403(s).

Because the complaint must plausibly plead that

2

defendants owned or operated the facility, for the same reasons

3

that plaintiffs’ Complaint does not state a claim for “owner or

4

operator” liability under CERCLA, it fails to state a Gatto Act

5

claim.

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2.

7

Porter-Cologne Water Quality Control Act

California implements the Clean Water Act through the

8

Porter–Cologne [Water Quality Control] Act.

San Joaquin River

9

Exch. Contractors Water Auth. v. State Water Res. Control Bd.,

10

183 Cal. App. 4th 1110, 1115 (3d Dist. 2010).

11

Act permits a contribution claim to be brought against “[a]ny

12

person who has discharged or discharges waste . . . or who has

13

caused or permitted, causes or permits, or threatens to cause or

14

permit any waste to be discharged or deposited where it is, or

15

probably will be, discharged into the waters of the state and

16

creates, or threatens to create, a condition of pollution or

17

nuisance.”

18

common law of nuisance.”

19

Supp. 2d 898, 918 (N.D. Cal. 2011) (citing City of Modesto

20

Redevelopment Agency v. Superior Court, 119 Cal. App. 4th 28, 37

21

(2004)).

22

is whether the defendant created or assisted in the creation of

23

the nuisance.”

24

The Porter–Cologne

Cal. Water Code § 13304(a). “The Act derives from the
Wells Fargo Bank, N.A. v. Renz, 795 F.

“Thus, the relevant question for purposes of liability

Id. (internal quotations and citation omitted).

Again, plaintiffs allege no supporting facts to

25

establish how the Lelands “created or assisted in the creation

26

of” the “pollution” or “nuisance.”

27

allege that “each defendant is liable under Water Code §

28

13304(c),” (Compl. ¶ 102), without any underlying facts regarding
14

See id.

Instead, plaintiffs

1

each defendants’ actions that led to the alleged pollution or

2

nuisance.

3

to Dismiss plaintiffs’ Porter-Cologne Act claim.

4

Accordingly, the court will grant defendants’ Motion

3.

5

Public Nuisance

Plaintiffs allege that all defendants are liable for

6

public nuisance.

7

“[a]nything which is injurious to health, including, but not

8

limited to, the illegal sale of controlled substances, or is

9

indecent or offensive to the senses, or an obstruction to the

10

free use of property, so as to interfere with the comfortable

11

enjoyment of life or property.”

12

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

13

community or neighborhood, or any considerable number of

14

persons.”

15

under several theories: (1) that the defendant creates or assists

16

in the creation of the nuisance; (2) the defendant unreasonably

17

fails to abate a nuisance when he is in possession of land; or

18

(3) the defendant has a right of possession of land and consents

19

or unreasonably permits a third party to create a nuisance on the

20

land.

21

The California Civil Code defines a nuisance as

Id. § 3480.

Cal. Civ. Code § 3479.

A public

A defendant may be liable for a nuisance

See Coppola, 935 F. Supp. 2d at 1018-19.
Here, plaintiffs allege: (1) that all defendants

22

exercised influence and substantial control over the operations

23

of the metal plating business; (2) that through such influence

24

and control defendants caused the release of the Contaminants

25

into the environment and failed to prevent or abate such

26

contamination; (3) that the contamination was injurious to

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health, indecent, offensive to the senses, and an obstruction to

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the free use of the various properties within the site; and (4)
15

1

that the contamination interfered with the comfortable enjoyment

2

of life and property and unlawfully obstructs the free use of the

3

surface water and groundwater at the site.

4

108.)

5

“adequately describe culpable conduct by [the Lelands].”

6

Coppola, 935 F. Supp. at 1033 (dismissing public nuisance claim

7

where plaintiff alleges that defendant operated a site of

8

contamination and the operation led to the spread of hazardous

9

substances but does not allege facts to indicate the active or

(See Compl. ¶¶ 107-

As previously discussed, plaintiffs’ Complaint does not
See

10

knowing generation of the contamination nuisance or any facts to

11

establish that defendant acted unreasonably when it failed to

12

discover and abate the spread of the contamination).

13

plaintiffs have not alleged any facts regarding how the Lelands

14

were involved in creating the nuisance, the court will grant

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defendants’ Motion to Dismiss plaintiffs’ public nuisance claim.

16
17

4.

Because

Trespass

“A trespass is an invasion of the interest in the

18

exclusive possession of land, as by entry upon it.”

Wilson v.

19

Interlake Steel Co., 32 Cal. 3d 229, 233 (1982).

20

asserting a claim for trespass must have a possessory interest in

21

the land at issue; mere ownership is not sufficient.”

22

Vill. Partners, L.P., 805 F. Supp. 2d at 902 (citing Dieterich

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Int’l Truck Sales, Inc. v. J.S. & J. Servs., Inc., 3 Cal. App.

24

4th 1601, 1608–10 (4th Dist. 1992)).

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include wrongful entry or invasion by pollutants.

26

Marietta Corp. v. Ins. Co. of N. Am., 40 Cal. App. 4th 1113, 1132

27

(2d Dist. 1995).

28

how the Lelands interfered with their right to possess their

“A plaintiff

Gregory

A trespass claim may
See Martin

Here, plaintiffs allege no facts to establish

16

1

property nor any facts describing how the Lelands’ actions led to

2

the contaminants entering and remaining on the property.

3

Accordingly, the court will grant defendants’ Motion to Dismiss

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plaintiffs’ trespass claim.

5

5.

6

Negligence

Plaintiffs allege a negligence cause of action against

7

defendants.

“Negligence is the failure to use reasonable care to

8

prevent harm to oneself or to others.”

9

Cal. App. 4th 1017, 1025 (2d Dist. 2007).

Raven H. v. Gamette, 157
“A person is negligent

10

if he or she does something that a reasonably careful person

11

would not do in the same situation or fails to do something that

12

a reasonably careful person would do in the same situation.”

13

To state a claim for negligence, a plaintiff must allege: “(1)

14

the defendant owed the plaintiff a duty of care, (2) the

15

defendant breached that duty, and (3) the breach proximately

16

caused the plaintiff’s damages or injuries.”

17

Loans Servicing, L.P., 228 Cal. App. 4th 941, 944 (1st Dist.

18

2014).

Id.

Alvarez v. BAC Home

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Here, plaintiffs allege that all defendants breached

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various duties by, among other things, failing to exercise due

21

care in handling the contaminants, using the equipment at the

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property, failing to investigate, and failing to contain the

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contaminants.

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alleged no supporting facts to establish why the Lelands owed

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plaintiffs a duty, how the Lelands breached that duty, or how the

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Lelands’ actions contributed to the contamination.

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the court will grant defendants’ Motion to Dismiss plaintiffs’

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negligence claim.

(See Compl. ¶¶ 134-156.)

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However, plaintiffs have

Accordingly,

1

6.

2

Ultrahazardous Activity

Plaintiffs allege a cause of action for strict

3

liability for ultrahazardous activity against the operator

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defendants only.3

5

“One who carries on an ultrahazardous activity is

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liable to another whose person, land or chattels the actor should

7

recognize as likely to be harmed by the unpreventable miscarriage

8

of the activity for harm resulting thereto from that which makes

9

the activity ultra-hazardous.”

Luthringer v. Moore, 31 Cal. 2d

10

489, 498 (1948).

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necessarily involves a risk of serious harm to the person, land

12

or chattels of others which cannot be eliminated by the exercise

13

of the utmost care and (b) is not a matter of common usage.”

14

“An activity is ultra-hazardous if it (a)

Id.

Here, plaintiffs allege that the operator defendants

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engaged in the ultrahazardous activity of metal plating.

16

¶ 161.)

17

allows the court to draw the reasonable inference that the

18

defendant[s] [are] liable for the misconduct alleged.”

19

556 U.S. at 678.

20

role in the metal plating business, and what actions they took

21

that led to the contamination, is unclear.

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supporting facts to establish that the Lelands were engaged in an

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“ultrahazardous activity.”

24

defendants’ Motion to Dismiss plaintiffs’ ultrahazardous activity

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claim.

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27
28

However, plaintiffs have not pled “factual content that

8.
3

(Compl.

Iqbal,

Based on plaintiffs’ Complaint, the Lelands’

Plaintiffs plead no

Accordingly, the court will grant

Statutory Indemnity

It is not clear which defendants are “operator
defendants only.”
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1

Plaintiffs seek statutory indemnity pursuant to the

2

Carpenter-Presley-Tanner Hazardous Substance Account Act, Health

3

& Safety Code 25300 et seq. (“HSAA”).

4

“The HSAA is ‘California’s version of [CERCLA].’”

5

Coppola, 935 F. Supp. 2d at 1011 (quoting Ameron Inter’l Corp. v.

6

Insurance Co. of Pa., 50 Cal. 4th 1370, 1379 (2010)).

7

includes a private right of action, and provides, in relevant

8

part, that “[a] person who has incurred response or corrective

9

action costs . . . may seek . . .

The HSAA

indemnity from any person who

10

is liable pursuant to this chapter.”

11

v. Alcoa Glob. Fasteners, Inc., 12 Cal. App. 5th 252, 297 (4th

12

Dist. 2017) (quoting Cal. Health & Safety Code § 25363).

13

HSAA expressly incorporates the same liability standards,

14

defenses, and classes of responsible persons as those set forth

15

in CERCLA,” and “is generally interpreted consistent with

16

CERCLA.”

17

omitted).

18

plaintiffs’ CERCLA claim, the court will dismiss plaintiffs’

19

request for statutory indemnity pursuant to the HSAA.

20

1012 (dismissing HSAA cause of action because court dismissed

21

CERCLA cause of action).

22
23

See Orange Cty. Water Dist.

“The

See Coppola, 935 F. Supp. 2d at 1011 (citations
Accordingly, for the same reasons the court dismissed

9.

See id. at

Declaratory Relief

Plaintiffs seek a judicial determination of the

24

parties’ rights and duties regarding defendants’ liability to the

25

City for the harm suffered and costs incurred by the City because

26

of the alleged contamination.

27

causes of action appear to be derivative of the prior causes of

28

action against defendants.

(See Compl. ¶ 186.)

Plaintiffs

Because the court has dismissed all
19

1

other causes of action, the court will grant defendants’ Motion

2

to Dismiss plaintiffs’ claim for declaratory relief.

3

Coppola, 935 F. Supp. 2d at 1035 (dismissing claim for

4

declaratory relief where declaratory relief was derivative of the

5

prior causes of action and each of the other causes of action

6

against the defendant were dismissed).

7

See

For the forgoing reasons, defendants’ Motion to Dismiss

8

the Complaint will be granted.

Plaintiffs, seemingly aware that

9

this motion would be granted, have requested leave to amend, and

10

defendants do not argue that granting leave to amend will be

11

futile, will prejudice them, or will cause undue delay.

12

court will according grant plaintiffs’ request for leave to amend

13

the Complaint.

14

The

IT IS THEREFORE ORDERED that defendants Richard Leland

15

and Sharon Lelands’ Motion to Dismiss Plaintiffs’ Complaint

16

(Docket No. 10) be, and hereby is, GRANTED.

17

Plaintiffs have twenty days from the date this Order is

18

signed to file a First Amended Complaint, if they can do so

19

consistent with this Order.

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Dated:

June 27, 2018

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