Walnut Creek Manor, LLC v. Mayhew Center, LLC et al

Filing 287

ORDER by Judge Claudia Wilken DENYING 279 MOTION FOR EXTENSION OF TIME FOR CLEANUP & ABATEMENT. (ndr, COURT STAFF) (Filed on 2/1/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WALNUT CREEK MANOR,

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No. C 07-5664 CW

Plaintiff,

ORDER DENYING
MOTION FOR
EXTENSION OF TIME
FOR CLEANUP &
ABATEMENT (Docket
No. 279)

v.

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MAYHEW CENTER, LLC, et al.

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Defendants.
________________________________/

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United States District Court
For the Northern District of California

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Defendants Mayhew Center, LLC and Dean Dunivan request

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additional time to cleanup and abate the soil and groundwater

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contamination they caused on Plaintiff Walnut Creek Manor’s

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property.

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process under the terms of this Court’s November 23, 2010

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injunction was November 23, 2012.

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established the requisite “good cause” for an extension of the

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deadline, as outlined in the injunction order, their request is

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denied.

Defendants’ original deadline for completing this

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Because Defendants have not

DISCUSSION
The parties executed a settlement agreement in October 2010

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in which they stipulated that Defendants would promptly remedy the

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PCE contamination they caused on Plaintiff’s property.

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272, Defs.’ Ex. B.

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stipulation and issued an injunction ordering Defendants to

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commence cleanup on Plaintiff’s property.

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Ex. C.

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Docket No.

On November 23, 2010, this Court approved the

Docket No. 273, Defs.’

In particular, the injunction required Defendants to reduce
the levels of PCE concentration on that property to “the most

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stringent standards or levels for residential properties

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articulated by the Regional Water Quality Control Board, San

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Francisco Bay Region.”

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complete this process within two years of the injunction date.

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Id. at 4.

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permitted to recover any funds remaining in an escrow account that

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Defendants created to fund their cleanup and abatement efforts.

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Id. at 8.

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abatement before the two-year deadline, they would be permitted to

Id. at 2.

Defendants were required to

If they failed to do so, then Plaintiff would be

If Defendants successfully completed cleanup and

United States District Court
For the Northern District of California

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keep any remaining funds in the escrow account for themselves.

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Id.

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The injunction allowed for an extension of this deadline

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under certain, limited circumstances.

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that an extension would be granted only

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Specifically, it provided

upon a finding of good cause by the Court that
[Defendants] have diligently pursued reasonable and
appropriate measures to comply with the terms of this
INJUNCTION ORDER in an effort to achieve RESIDENTIAL
STANDARDS, but through no fault of [Defendants] or their
consultants, additional time will be needed to CLEANUP
AND ABATE [Plaintiff’s contaminated property].
Id. at 6-7 (capital letters in original).
Defendants have not met this standard here.

Plaintiff has

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submitted evidence documenting multiple instances where

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Defendants’ own conduct led to delays in the remediation process.

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They note, for instance, that Defendants failed to provide

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mandatory insurance forms for their contractors, which delayed

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work on Plaintiff’s property for several months.

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Brian Kelly ¶¶ 17-18, Exs. B & C.

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this delay on Plaintiff, who restricted the contractors’ access to

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its property, but neglect to mention that they expressly agreed to

Declaration of

Defendants attempt to blame

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provide these forms to Plaintiff as a precondition to accessing

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its property.

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also ignore the fact that they failed to commence work on their

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own property -- to which they had full and unrestricted access --

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for more than a year after the injunction issued, despite pleas

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from the Regional Water Board to begin much sooner.

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Ex. C.

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fault” of Defendants.

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injunction order, Defendants have not established “good cause” for

See Defs.’ Ex. E, Access Agreement.

Defendants

Kelly Decl.,

These delays cannot be said to have occurred through “no
Accordingly, under the terms of the

United States District Court
For the Northern District of California

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an extension of the deadline.

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represented that it does not wish to recover the funds in the

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escrow account but rather wishes to leave them available for

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prompt cleanup and abatement of its property.

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Nonetheless, Plaintiff has

CONCLUSION
For the reasons set forth above, Defendants’ motion for an

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extension of the cleanup and abatement deadline (Docket No. 279)

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is DENIED.

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under submission.

The Court takes Plaintiff’s request for attorney fees

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By July 31, 2013, Defendants must perform all of the

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obligations they were to have performed by November 23, 2012.

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Defs.’ Ex. C, at 3-4.

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intend to seek to recover the funds in the escrow account.

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on that representation, Plaintiff is ordered not to do so, absent

See

Plaintiff has represented that it does not

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Based

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permission from the Court.

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their remaining obligations under the injunction.

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Defendants must comply with all of

IT IS SO ORDERED.

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Dated: 2/1/2013

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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