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

Filing 217

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 11/17/2020 DENYING 207 Third-Party Defendant County of Yolo's Motion for Summary Judgment. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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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-00900 WBS EFB

MEMORANDUM AND ORDER RE:
THIRD-PARTY DEFENDANT YOLO
COUNTY’S MOTION FOR SUMMARY
JUDGMENT

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; et al.,
Defendants.

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----oo0oo---Plaintiffs City of West Sacramento, California and the
People of the State of California (collectively, “the City”)
brought this action to address toxic levels of soil and
groundwater resulting from the release of hazardous substances at

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a property once occupied by a metal plating facility at 319 3rd

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Street, West Sacramento, California.

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(“TAC”) (Docket No. 45).)

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under the Comprehensive Environmental Response, Compensation, and

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Liability Act (“CERCLA”) section 107(a), 42 U.S.C. § 9607(a), as

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well as other state and federal statutes, to recover the response

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costs associated with cleaning up the hazardous substances.

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generally id.)

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(See Third Am. Compl.

The City sued a number of defendants

(See

Two of the defendants, R and L Business Management and

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John Clark (collectively, “R&L”), have brought a single third-

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party claim against the County of Yolo (“Yolo County”) for

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contribution under CERCLA § 113(f)(1).

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Compl. (“Am. Third-Party Compl.”) (Docket No. 116).)

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has filed a motion for summary judgment on that third-party

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claim.

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No. 207-1).)

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(See Am. Third-Party
Yolo County

(See Cty. of Yolo’s Mem. P. & A. (“County’s MPA”) (Docket

The parties’ dispute centers around the presence and

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source of lead contamination at 319 3rd Street.

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Defs.’ Opp’n to Cty. of Yolo’s Mot. Summ. J. (“Defs.’ Opp’n”)

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(Docket No. 213).) Yolo County argues that no genuine issue of

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material fact exists because R&L cannot produce evidence showing

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that Yolo County ever disposed of any lead and, even if it could,

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lead is not a contaminant for which the City is seeking recovery

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under CERCLA in its underlying action against R&L.

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MPA; Cty. of Yolo’s Reply at 5-8.)

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the record could allow a reasonable trier of fact to conclude

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that lead that was released by Yolo County was deposited or

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migrated onto 319 3rd Street and that this lead will cause R&L to
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(See id.; see

(See County’s

R&L argues that evidence in

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incur response costs in its underlying action with the City.

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(See Defs.’ Opp’n.)

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I.

Factual and Procedural Background

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The parcel that forms the basis of the City’s lawsuit

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against R&L is located at 319 3rd Street in West Sacramento,

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California.

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the property at 319 3rd Street and formerly operated the

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electroplating business that operated there between 1973 and

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1985.

(See TAC ¶ 4.)

(TAC ¶¶ 14, 18.)

The City’s TAC alleges that R&L owns

The TAC alleges that contaminants

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including nickel, copper, zinc, chromium, and volatile organic

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compounds including 1,2 DCA that originated from the

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electroplating business on the parcel have migrated and are

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migrating in the soil and groundwater to areas beyond the

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property line, creating “an ever-growing plume of contamination”

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(the “319 Site”).

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hold the third-party plaintiffs liable for necessary response

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costs and cleanup of this contamination.

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(See TAC ¶¶ 14, 18, 57-58.)

The TAC seeks to

(See id.)

Yolo County has never owned 319 3rd Street or been

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involved in operations there.

(See Decl. of J. Hartman King

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(“Hartman King Decl.”), Ex. A, B, C, (Docket No. 207-5).))

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at least 1914 until 1987, Yolo County owned two parcels North of

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319 3rd Street: 305 3rd Street, which sits at the corner of 3rd

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Street and C Street, and a single parcel spanning two street

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addresses on C Street, 221/225 C Street (collectively, the

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“Former County Properties”).

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conveyed the Former County Properties to the Redevelopment Agency

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of the City of West Sacramento via quitclaim deed.

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Decl., Ex. B.)

(Id.)

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From

In 1987, Yolo County

(Hartman King

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Yolo County constructed three buildings on the Former

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County Properties during its period of ownership: a town hall in

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1915, an office building in 1956, and a jail in 1957.

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of Ryan Matthews (“Matthews Decl.”), Exs. A, B, C (Docket No.

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213-3, 213-4, 213-5, 213-6).)

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for the construction of all three of these buildings called for

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the use of lead paint.

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been demolished, and the Former County Properties are currently

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used by the City of West Sacramento as a public parking lot.

(See Decl.

Contracts signed by Yolo County

(See id.)

These three buildings have all

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(See Hartman King Decl., Ex. C, Expert Rebuttal Report of Joseph

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Turner at 9 (“Turner Report”) (Docket No. 207-5).)

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Another parcel, 317 3rd Street (“the Firehouse

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Property”), lies between the Former County Properties and 319 3rd

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Street. (See Turner Report at Ex. 2.)

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houses the “Washington Firehouse” building and was owned by local

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fire districts until 1987.

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Third-Party Compl. ¶ 12.)

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on the property, which is currently owned by ECO Green, LLC.

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(Id.)

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The Firehouse Property

(See Hartman King Decl. ¶6; Am.
The Washington Firehouse still stands

Over the past several decades, a number of

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environmental consultants and the California Department of Toxic

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Substances Control (“DTSC”) have conducted investigations of the

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319 Site and surrounding properties.

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Expert Report of Dr. Adam Love at 12-13 (“Love Report”) (Docket

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No. 213-8).)

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Kuhl Associates (“WKA”) in 2007.

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Wallace & Kuhl Assocs. Report (2007) (“WKA Report”) (Docket No.

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207-5).)

(See Matthews Decl., Ex. D,

One such investigation was conducted by Wallace and
(See Hartman King Decl., Ex. D,

WKA collected 75 soil samples at 25 locations at the
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Former County Properties and the Firehouse Property, and found

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that 23 of the samples exceeded regulatory criteria for lead.

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(Id.)

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by URS Corporation in 2004, had also detected a high

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concentration of lead in a composite sample taken “on the

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northeast portion” of the properties.

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found ceramic shards, brick, nails, and bone material beneath the

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asphalt paving on portions of the properties, “possibly

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suggesting that fill material is present onsite.”

WKA’s report notes that a prior investigation, conducted

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(See id. at 14.)

WKA also

(See id.)

Based largely on information in the WKA Report, on July

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22, 2019, the third-party plaintiffs filed a third-party

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complaint against Yolo County and ECO Green, LLC, for

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contribution pursuant to 42 U.S.C. § 9613(f)(1), equitable

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indemnify, equitable contribution, and declaratory relief.

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Third-Party Complaint (“Third-Party Compl.”) (Docket No. 90).)

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The Third-Party Complaint alleged that “lead and other toxic

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chemicals were discharged” from 305 3rd Street and 317 3rd Street

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“onto and into the soil” beneath those parcels.

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¶ 23.)

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R&L’s claims without prejudice because R&L did not seek to hold

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Yolo County liable for the contamination at issue in the City’s

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TAC.1

(See

(See id. at

On October 28, 2019, the court dismissed all four of

(See Docket No. 115.)

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Specifically, the court dismissed R&L’s claim for
contribution under CERCLA section 113(f)(1) because R&L’s claim
stemmed only from alleged lead contamination at 305 3rd Street,
whereas the City’s underlying TAC sought damages for the release
of nickel, copper, zinc, chromium, and 1,2 DCA at 319 3rd Street.
(See Docket No. 115.) Because R&L did not seek to hold Yolo
County liable for the contamination at issue in the City’s TAC,
the court held that the third-party plaintiffs could not maintain
their contribution claim against Yolo County. (See id.)
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The third-party plaintiffs proceeded to file an amended

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third-party complaint seeking only contribution under CERCLA

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section 113(f) against Yolo County and ECO Green, LLC.2

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Third-Party Compl.)

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allegations that Yolo County owned the property “generally

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located” at 305 3rd Street, that other toxic chemicals, including

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zinc, cadmium, and chromium, “were discharged onto and into the

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soil” at the County property and the Firehouse Property, and that

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“historic fill material” containing “heavy metals . . . including

(See Am.

The Amended Third-Party Complaint added

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. . . zinc, cadmium, chromium, and lead” was imported, dumped,

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released, and/or spread from the County property and the

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Firehouse Property onto other properties, including 319 3rd

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Street.

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Third-Party Complaint also alleges that releases of fill material

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from the County property and the Firehouse Property contained

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contaminants that had commingled with contaminants at 319 3rd

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Street.

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Motion to Dismiss, holding that R&L’s additional allegations had

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remedied the issues that led the court to dismiss their third-

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party complaint.

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(See Am. Third-Party Compl. ¶¶ 38, 44.)

(See id.)

The Amended

Subsequently, the court denied Yolo County’s

(See Docket No. 136.)

After the third-party plaintiffs filed their Amended

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Shortly thereafter, ECO Green, LLC and the City reached
an agreement for the settlement of all claims and disputes
between them in this matter on or about June 22, 2020. (Order re
Mot. for Determination of Good Faith Settlement at 2 (Docket No.
174).) The court approved the parties’ settlement, finding it to
be “procedurally and substantively fair, reasonable, and
consistent with CERCLA’s objectives,” and dismissed R&L’s Amended
Third-Party Complaint as to ECO Green, LLC with prejudice. (See
id.)
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Third-Party Complaint, the court granted the City’s Motion for

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Summary Judgment against R&L, holding that R&L is liable for the

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contamination at the 319 Site under CERCLA section 107(a).

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Docket No. 125.)

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divisibility, holding that it is jointly and severally liability

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for the CERCLA violations that have occurred at the 319 Site.

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(See Mem. & Order re Defs.’ Divisibility Defense at 28

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(“Divisibility Order”) (Docket No. 203).)

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II.

(See

The court then denied R&L’s request for

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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mere existence of some alleged factual dispute between the

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parties will not defeat an otherwise properly supported motion

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for summary judgment; the requirement is that there be no genuine

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issue of material fact.

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U.S. 242, 248 (1986) (emphasis in original).

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is “one that might affect the outcome of the suit under the

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governing law,” while a “genuine” issue is one where the

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“evidence is such that a reasonable jury could return a verdict

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for the nonmoving party.”

Fed. R. Civ.

“By its very terms, this standard provides that the

Anderson v. Liberty Lobby, Inc., 477
A “material” fact

Id.

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The party moving for summary judgment bears the initial

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burden of establishing the absence of a genuine issue of material

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fact.

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moving party can satisfy this burden by (1) presenting evidence

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

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or (2) demonstrating that the non-moving party cannot provide

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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The

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evidence to support an essential element upon which it will bear

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the burden of proof at trial.

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satisfy this initial burden, the burden then shifts to the non-

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moving party to produce specific facts beyond the pleadings to

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show the existence of genuine disputes of material fact.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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586-87 (1986).

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must be viewed in the light most favorable to the party opposing

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the motion.

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III.

Id. at 322-23.

If the movant can

Any inferences drawn from the underlying facts

Id. at 587.

Discussion

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CERCLA Section 113(f)(1) allows a party to “seek

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contribution from any other person who is liable or potentially

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liable under Section 107(a), during or following any civil action

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under section 106 of this title or under section 107(a) of this

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title.”

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contribution claim only “during or following” a civil action

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under CERCLA section 106 or 107(a) to which they are a party.

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Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 168

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(2004).

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obtain contribution under section 113(f)(1).

42 U.S.C. § 9613(f)(1).

A party may assert a

If a private party has not been sued, the party cannot
Id.

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Here, the third-party plaintiffs are parties to an

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action brought against them by the City under CERCLA section

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107(a).

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(Docket No. 48); Def. R&L’s Answer to TAC (Docket No. 49).)

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are therefore authorized under CERCLA section 113(f)(1) to seek

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contribution from “any other person who is liable or potentially

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liable under section 107(a).”

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(See generally TAC; Def. John Clark’s Answer to TAC

42 U.S.C. § 9613(f)(1).

To establish Yolo County’s liability or potential
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They

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liability under CERCLA section 107(a), the third-party plaintiffs

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must satisfy four elements: “(1) the site on which the hazardous

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substances are contained is a ‘facility’ under CERCLA's

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definition of that term; (2) a ‘release’ or ‘threatened release’

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of any ‘hazardous substance’ from the facility has occurred; (3)

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such ‘release’ or ‘threatened release’ has caused the plaintiff

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to incur response costs that were ‘necessary’ and ‘consistent

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with the national contingency plan,’; and (4) the defendant is

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within one of four classes of persons subject to the liability

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provisions of Section 107(a).”

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Unocal Corp., 270 F.3d 863, 870–71 (9th Cir. 2001) (internal

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citations omitted) (quoting 3550 Sevens Creek Assocs. v. Barclays

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Bank of Cal., 915 F.2d 1355, 1358 (9th Cir. 1990)).

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third-party plaintiffs seek to hold Yolo County liable as the

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second “class[] of person” set out in section 107(a): “any person

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who owned or operated a facility at the time the hazardous

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substances were disposed of.”

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Carson Harbor Vill., Ltd. v.

Here, the

42 U.S.C. § 9607(a).

The Supreme Court has made clear that a contribution

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action under section 113(f)(1) may only follow from an action

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under section 107(a).

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element set out in Carson Harbor therefore requires the third-

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party plaintiffs to show that the release or threatened release

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of hazardous materials by Yolo County for which they seek

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contribution must be one that will “cause[] [them] to incur

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response costs” in the underlying section 107(a) action brought

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against the them by the City.

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at 870–71.

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See Aviall, 543 U.S. at 168.

The third

See id.; Carson Harbor, 270 F.3d

Yolo County does not appear to dispute that the Former
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County Properties or the buildings formerly on them fall under

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CERCLA’s broad definition of “facility.”

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(defining facility as “any building, structure, installation . .

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. or any site or area where a hazardous substance has been

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deposited, stored, disposed of, or placed . . . .”).

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only the second, third, and fourth Carson Harbor elements are at

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issue.

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See 42 U.S.C. § 9601(9)

Therefore,

See Carson Harbor, 270 F.3d at 870-71.
Yolo County first argues that the third-party

plaintiffs cannot carry their burden of showing that a genuine

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issue of material fact exists under the second and fourth

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elements set out in Carson Harbor: whether a “release” or

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“threatened release” of any “hazardous substance” occurred from

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the Former County Properties during Yolo County’s ownership.

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(See County’s MPA at 9-11.)

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even assuming the existence of such releases, the third-party

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plaintiffs cannot establish a genuine issue of material fact as

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to the third element set out in Carson Harbor: whether those

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releases of hazardous substances will cause the third-party

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plaintiffs to incur response costs in the underlying section

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107(a) action brought against them by the City.

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MPA at 11-14.)

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Second, Yolo County argues that,

(See County’s

For the reasons that follow, the court rejects Yolo

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County’s arguments and finds that R&L has met its burden of

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establishing genuine issues of material fact as to each element

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of CERCLA section 107(a) liability and thus for its claim for

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contribution under CERCLA section 113(f)(1).

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U.S. at 168.

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A.

See Aviall, 543

Whether a Genuine Issue of Fact Exists as to the Second
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and Fourth Elements of Section 107(a) Liability

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To establish the second and fourth elements of section
107(a) liability, R&L must show that a “release” or “threatened
release” of a “hazardous substance” occurred from the Former
County Properties or buildings on those properties during the
period of Yolo County’s ownership.
at 870-71.

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CERCLA defines the term “release” broadly, as any

“spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing
into the environment.”

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See Carson Harbor, 270 F.3d

42 U.S.C. § 9601(22).

The only “hazardous substance” that R&L argues has been
released onto or from the Former County Properties is lead.
Defs.’ Opp’n at 4-5.)

(See

See 40 C.F.R. § 302.4 (listing lead as a

“hazardous substance” under CERCLA).

Record evidence reveals

that lead has been detected in soil at the Former County
Properties during prior investigations by environmental
consultants.

(See Matthews Decl., Ex. D, Expert Report of Dr.

Adam Love at 10-11 (“Love Report”) (Docket No. 213-8).)

In 2007,

WKA detected lead in concentrations that exceeded regulatory
criteria in 23 soil samples taken at the Firehouse Property and
the Former County Properties.

(See WKA Report at 14.)

WKA noted

in its report that previous investigations had revealed high
concentrations of lead in a composite sample taken “on the
northeast portion” of the sampling area, which would be on or
near 221/225 C Street, the northeastern-most Former County
Property.

(See id.)
Yolo County does not dispute that prior investigations

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have revealed the presence of lead “on the eastern edge of

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221/225 C Street,” one of the Former County Properties.

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County’s Statement of Uncontroverted Facts ¶ 15 (“SUF”) (Docket

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No. 207-2).)

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evidence in the record that shows that any of this lead was

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released onto or from the Former County Properties during the

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period of Yolo County’s ownership.

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Yolo County cites the report of its rebuttal expert, Joseph

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Turner, which concludes that the record “does not contain any

(See

Rather, Yolo County argues that there is no

(See County’s MPA at 9.)

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evidence that Yolo County placed any lead-impacted soil on any of

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the [F]ormer County [P]roperties or that any other disposal of

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hazardous substances occurred on these properties” while Yolo

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County was the owner.

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also points to deposition testimony of the City’s expert, Dr.

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Anne Farr, R&L’s expert, Dr. Adam Love, and R&L’s Rule 30(b)(6)

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witnesses, Richard Leland and John Clark, all of whom testified

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that they were not aware of any instances in which Yolo County

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had placed hazardous substances or fill material containing lead

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on any of the Former County Properties.

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Ex. G, Farr Dep. 174:17-176:9; Ex. H, Love Dep. 237:1-17, 247:1-

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21 (Docket No. 207-5); Decl. of Alanna C. Lungren (“Lungren

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Decl.”), Ex. A, Clark Dep. 62:4-19; Ex. B, Leland Dep. 33:12-16

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(Docket No. 207-6).)

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(See Turner Report at 10-11.)

Yolo County

(See Hartman King Decl.,

However, Yolo County’s evidence merely shows that there

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is no direct evidence in the record of specific or discreet

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releases of hazardous substances onto or from the Former County

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Properties during the period of Yolo County’s ownership.

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liability may be inferred from the totality of the circumstances;
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“CERCLA

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it need not be proven by direct evidence.”

Tosco Co. v. Koch

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Indus., Inc., 216 F.3d 886, 892 (10th Cir. 2000) (citing United

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States v. Cello-Foil Prods., Inc., 100 F.3d 1227, 1231-32 (6th

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Cir. 1996)).

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sufficient circumstantial evidence, discussed below, to create a

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genuine issue of material fact as to whether releases of lead

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occurred from the Former County Properties during Yolo County’s

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ownership.

Here, the third-party plaintiffs have produced

See Anderson, 477 U.S. at 248.

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Specifically, documentary evidence shows that lead

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paint was used in the construction of three buildings on the

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Former County Properties during the period of Yolo County’s

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ownership.

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hall shall be painted with two coats of white lead mixed with

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boiled linseed oil.”); Ex. B (“Primer coat [for the office

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building] . . . shall be mixed in the proportions of 60% pigment

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to 40% vehicle . . . . The pigment shall be composed of 80% white

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lead and 20% zinc oxide . . . . The finish coat . . . shall be

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mixed in the proportions of 66% pigment and 34% vehicle . . . .

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Pigment shall be composed of 35% titanium oxide, 45% white lead,

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and 20% zin oxide.”); Ex. C (“Interior work [for jail building]:

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Wood and Metal: Apply one coat of lead and oil based primer

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followed by two coats of 100% pure prepared, highest grade

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exterior paint as manufactured by W.P Fuller, Pittsburg, National

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Lead . . . .”).)

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See Matthews Decl., Ex. A (“The exterior of said town

Based on these records, R&L’s expert, Dr. Love, states

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that “lead-based paint from the County-owned building [sic]

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represents the only documented source of lead to soil in the

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vicinity to [319 3rd Street] that could have resulted in the
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observed soil concentrations above the commercial/industrial soil

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screening levels for lead of 320 milligram per kilogram soil.”

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(See Decl. of Dr. Adam Love ¶ 7 (“Love Decl.”) (Docket No. 213-

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7).)

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impacts “are typically greater in the spatial extent near to the

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source of contamination.”

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impacts to soil from prior investigations “have greater spatial

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extent on the County owned-properties [sic] compared to” 319 3rd

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Street, Dr. Love concludes that the three County buildings

As Dr. Love explains in his declaration, environmental

Id. ¶ 8.

Because the observed lead

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constructed during Yolo County’s ownership represent the only

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known source that could explain the levels of lead observed at

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the 319 Site.

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(See id. ¶¶ 7-10.)

Based on this evidence--that Yolo County used lead-

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based paint in three separate construction projects at the Former

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County Properties while it owned them, and that lead-based paint

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is the only documented source of lead in the vicinity of the

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Former County Properties that could have resulted in the observed

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concentrations of lead on or near the properties--a jury could

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reasonably infer that lead was “discharged,” “escaped,”

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“leached,” was “dumped,” or was “disposed” from the Former County

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Properties or the buildings on them during construction or during

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the several decades that Yolo County owned the properties.

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Carson Harbor, 270 F.3d at 870–71; Matsushita, 475 U.S. at 586-87

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(“on summary judgment the inferences to be drawn from the

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underlying facts . . . must be viewed in the light most favorable

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to the party opposing the motion”).

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that a genuine issue of material fact exists as to the second and

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fourth elements of section 107(a) liability.
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See

The court therefore finds

See Matsushita, 475

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U.S. at 586-87.

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B.

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Whether a Genuine Issue of Fact Exists as to the Third
Element of Section 107(a) Liability
To establish the third element of section 107(a)

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liability, R&L must show that the release of hazardous materials

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by Yolo County for which R&L seeks contribution must be one that

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will “cause[] [it] to incur response costs” in the underlying

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section 107(a) action brought against R&L by the City.

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Aviall, 543 U.S. at 168; Carson Harbor, 270 F.3d at 870–71.

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See

Yolo County argues that, because R&L only offers

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evidence related to releases of lead, and no other hazardous

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substance, its claim for contribution must fail as a matter of

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law.

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that the court dismissed R&L’s original third-party complaint

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because it concerned only lead.

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Third-Party Complaint survived Yolo County’s Motion to Dismiss,

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Yolo County argues it was only because the Amended Third-Party

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Complaint added allegations that other metals contained in the

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City’s TAC were released from the Former County Properties.

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Under Yolo County’s theory, summary judgment is now appropriate

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because the third-party plaintiffs do not offer any evidence of

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such releases.

(See Cty. of Yolo’s Reply at 5-8.)

(See id.)

Yolo County contends

Though the Amended

(See id.)

23

The inquiry under the third element of section 107(a)

24

liability in a contribution action, however, is not whether the

25

third-party plaintiffs seek contribution strictly for releases of

26

the same contaminants as the City’s TAC--it is whether the third-

27

party plaintiffs seek contribution for releases that will cause

28

them to incur response costs in the City’s section 107 action.
15

1

See Aviall, 543 U.S. at 168.

As the court observed when it

2

denied Yolo County’s Motion to Dismiss the Amended Third-Party

3

Complaint, because the Amended Third-Party Complaint alleges that

4

contaminants originating from the Former County Properties are

5

commingled at the 319 Site, “on a purely practical level, the

6

court cannot infer that the City will clean only the

7

contamination that originated at 319 Third Street.”

8

re Mot. to Dismiss Am. Third-Party Compl. (Docket No. 136).)

9

That observation applies with even more force now,

(See Order

10

given that the court has subsequently found that R&L’s

11

contributions to the pollution present at the 319 Site are not

12

divisible from the total harm present at the Site, including harm

13

caused by elevated levels of lead.

14

18-19, 27.)

15

provide evidence--that the Former County Properties are a source

16

of the lead currently found at the 319 Site, “if the City is

17

successful, R&L will undoubtedly have to reimburse the City for

18

the cost of cleaning whatever hazardous contamination is

19

currently at the 319 property, not just that which originated

20

there.”

21

Complaint at 6.)

22

(See Divisibility Order at

Because the third-party plaintiffs allege--and

(See Order re Mot. to Dismiss Amended Third-Party

Based on the evidence the parties have presented, the

23

court finds that a genuine issue of material fact exists as to

24

whether Yolo County’s releases of lead will cause the third-party

25

plaintiffs to incur response costs.

26

586-87.

27

conclude that lead is present at the 319 Site at concentrations

28

that will require remediation, and that it is commingled with

See Matsushita, 475 U.S. at

In their expert reports, both Dr. Love and Dr. Farr

16

1

other contaminants in the soil.

2

King Decl., Ex. E, Rebuttal Expert Report of Dr. Anne Farr at 3-4

3

(“Farr Rebuttal Report”) (Docket No. 207-5).)

4

Love further concludes that source of lead at the 319 Site is a

5

layer of historic fill material upon which the Site was

6

developed.

7

been documented in prior investigations of the Former County

8

Properties and the Firehouse Property.

9

WKA Report at 14.)

10

(See Love Report at 23; Hartman-

(See Love Report at 20.)

In his report, Dr.

Similar fill material has

(Love Report at 10-11;

Dr. Love explains that historic fill, which is

11

generally imported to a site to raise topographic elevation, may

12

include construction debris.

13

Consistent with his explanation, prior investigations of the

14

Former County Properties and the Firehouse Property discovered

15

ceramic shards, brick, and nails in the shallow soil.

16

Report at 14.)

17

(See Love Report at 10.)

(See WKA

Citing records associated with Yolo County’s

18

construction of the town hall, jail, and office building on the

19

Former County Properties, as well as soil samples that show lead

20

impacts with greater “spatial extent” closer to the Former County

21

Properties, Dr. Love concludes in his declaration that “lead-

22

based paint from the County-owned building [sic] represents the

23

only documented source of lead to soil in the vicinity to [319

24

3rd Street] that could have resulted in the observed soil

25

concentrations above the commercial/industrial soil screening

26

levels for lead of 320 milligram per kilogram soil.”

27
28

Yolo County’s rebuttal expert, Joseph Turner, disputes
this conclusion, asserting in his report that the highest
17

1

reported lead concentrations in soil are located at the 319 Site

2

and that the use of lead anodes in chromium plating solution by

3

the third-party plaintiffs represents the most likely source of

4

lead contamination at the 319 Site.

5

Dr. Farr also concludes that the highest concentration of lead

6

was detected in the southern portion of the 319 Site, but she

7

acknowledges that elevated lead concentrations detected by WKA

8

represent another “primary” source area of lead at the 319 Site.

9

(See Farr Report at 3-4.)

(See Turner Report at 6.)

At the summary judgment stage, it is

10

not the court’s task to weigh the credibility of each party’s

11

expert in order to resolve conflicting testimony or evidence.

12

See Celotex, 477 U.S. at 323-24.

13

conflicting expert testimony as to the source of lead observed at

14

the 319 Site suggests there is a disputed issue of material fact.

15

See id.

16

Rather, the presence of

Yolo County also argues that the court previously

17

rejected Dr. Love’s conclusion in its order denying R&L’s

18

divisibility defense.

19

where the court states “Dr. Love’s assumption that all lead at

20

the [319 Site] must originate with fill material is not based on

21

site-specific data.”

22

However, Yolo County’s reliance on the court’s divisibility order

23

is misplaced for two reasons.

24

Love’s declaration appear to be based in part on evidence that he

25

did not consider in his expert report and that were not before

26

the court in the divisibility hearing, namely the records

27

associated with past construction at the Former County

28

Properties.

Yolo County quotes a portion of the order

(See County of Yolo’s Reply at 8.)

First, the conclusions in Dr.

(See Love Decl. ¶¶ 3-4.)
18

1

Second, in the divisibility order, the court’s finding

2

that Dr. Love fell short of proving that all lead at the 319 Site

3

must have originated from fill material was made in the context

4

of determining whether R&L’s contributions to the pollution at

5

the 319 Site could be divided from the total harm done to the 319

6

Site.

7

divisibility defense is much higher than the bar to establish a

8

triable issue of material fact.

9

(describing the burden of proof in a divisibility claim as

(See Divisibility Order at 8.)

The bar to establish a

See Pakootas, 905 F.3d at 598

10

“‘substantial’ because the divisibility analysis is ‘intensely

11

factual’”).

12

prevent it from concluding that Dr. Love’s conclusions are based

13

on adequate data to establish a genuine dispute of material fact

14

at the summary judgment stage.

15

The court’s divisibility order therefore does not

See Celotex, 477 U.S. at 323-24.3

Because Dr. Love concludes that fill material was the

16

source of the elevated lead concentrations observed at the 319

17

Site, that similar fill material is present at the Former County

18

properties and the Firehouse Property, that the spatial extent of

19

lead impacts increase as sampling gets closer to the Former

20

County Properties, and that the lead-based paint used on the

21

Yolo County also cites to testimony from Dr. Love’s
deposition where he testified that he was not aware of when fill
material was placed on the 319 Site or who did it, and that there
was no other basis for concluding that lead was released onto the
319 Site other than fill material. (See County’s Reply at 4.)
However, in that testimony, Dr. Love stated he was not aware of
how fill material got there because he had not been asked to look
into that at the time. (Id.) Dr. Love’s declaration now states
that the documents associated with construction at the Former
County Properties indicate that the lead paint used on the
buildings is the only documented source of lead near the 319 Site
that could account for the levels observed there. (See Love
Decl. ¶ 7.)
19

22
23
24
25
26
27
28

3

1

three County buildings is the only documented source of lead that

2

could have resulted in the elevated lead concentrations observed

3

at the 319 Site, a reasonable trier of fact could conclude that

4

releases of lead from the Former County Properties during or

5

after construction contaminated fill material at the Former

6

County Properties, and later migrated to or was moved to the 319

7

Site.

8

the inferences to be drawn from the underlying facts . . . must

9

be viewed in the light most favorable to the party opposing the

See Matsushita, 475 U.S. at 586-87 (“on summary judgment

10

motion”).

11

buildings was built before the 319 Site was developed for use as

12

an electroplating facility in 1949, a reasonable trier of fact

13

could conclude that the fill material containing lead was

14

deposited at the 319 Site during Yolo County’s ownership.

15

id.

16

Additionally, because at least one of the three County

See

Accordingly, a genuine issue of material fact exists as

17

to whether Yolo County’s releases of lead will cause the third-

18

party plaintiffs to incur response costs under CERCLA section

19

107(a).

20

has failed to meet its burden of proving no genuine dispute of

21

material fact exists as to any of the elements of CERCLA section

22

107(a) liability, summary judgment is not warranted.

23

Aviall, 543 U.S. at 168.

24

See Celotex, 477 U.S. at 323-24.

Because Yolo County

See id.;

IT IS THEREFORE ORDERED that Yolo County’s Motion for

25

Summary Judgment (Docket No. 207) be, and the same hereby is,

26

DENIED.

27

Dated:

November 17, 2020

28
20