Californians for Alternatives to Toxics v. Kernen Construction Co. et al

Filing 100

ORDER by Judge Yvonne Gonzalez Rogers denying 73 Plaintiff's Motion for Partial Summary Judgment Case Management Statement due by 8/7/2017. Case Management Conference set for 8/14/2017 at specially set time of 11:00 AM in Courtroom 1, 4th Floor, Oakland. (fs, COURT STAFF) (Filed on 7/21/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7
8

CALIFORNIANS FOR ALTERNATIVES TO
TOXICS,
Plaintiff,

9
vs.
10
11

CASE NO. 16-cv-04007-YGR
ORDER DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. Nos. 73

KERNEN CONSTRUCTION CO., ET AL.,

United States District Court
Northern District of California

Defendants.
12
13

Plaintiff Californians for Alternatives to Toxics brings this action against defendants

14

Kernen Construction Company, Bedrock Investments LLC, Scott Farley, and Kurt Kernen for

15

alleged violations of the Federal Water Pollution Control Act and California Health & Safety

16

Code section 25249.5 (“Prop. 65 Claim”), in connection with the operation of their facility in

17

McKinleyville, California.1

18

The parties filed cross-motions for summary judgment, and a hearing was held on such

19

motions on May 16, 2017. (Dkt. No. 94.) Because of the nature of the claims and the parties’

20

arguments, the Court referred this action to the California Attorney General for his position on

21

certain issues. (Dkt. No. 95.) The California Attorney General responded on June 19, 2017, and

22

confirmed that “compliance with a Water Board permit does not automatically satisfy the

23

requirements of Proposition 65,” but rather that defendants must demonstrate compliance on a

24

case-by-case basis. (Dkt. No. 97 at 1–2.) In light of such response, defendants withdrew their

25

cross-motion for summary judgment. (Dkt. No. 98.) Remaining before the Court is plaintiff’s

26

motion for summary judgment. Defendants continue to oppose the same.

27
1

28

On April 10, 2017, the Court granted the parties’ stipulation to dismiss plaintiff’s Prop.
65 Claim against defendant Bedrock Investments, LLC only.

Having carefully reviewed the pleadings, the papers and exhibits submitted on such

1
2

motion, and the parties’ arguments on May 16, 2017, and for the reasons set forth more fully

3

below, the Court DENIES plaintiff’s motion for summary judgment.2

4

I.

5

LEGAL FRAMEWORK
Summary judgment is appropriate when no genuine dispute as to any material fact exists

6

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A party

7

seeking summary judgment bears the initial burden of informing the court of the basis for its

8

motion, and of identifying those portions of the pleadings, depositions, discovery responses, and

9

affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Material facts are those that might affect the outcome of the

11
United States District Court
Northern District of California

10

case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The “mere existence of some

12

alleged factual dispute between the parties will not defeat an otherwise properly supported motion

13

for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at

14

247–48 (dispute as to a material fact is “genuine” if sufficient evidence exists for a reasonable jury

15

to return a verdict for the non-moving party) (emphases in original).

16

Where the moving party will have the burden of proof at trial, it must affirmatively

17

demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun

18
19
20
21
22
23
24
25
26
27
28

2

In connection with their briefs, each party has submitted requests for judicial notice
(“RJN”): Plaintiff has sought notice of the following (Dkt. No. 79, “PRJN”; Dkt. No. 89, Second
PRJN): (i) Exhibit A, excerpts from the California Interagency Watershed Map of 1999; (ii)
Exhibit B, excerpts from Water Control Plan for the North Coast Region; and (iii) Exhibit C,
Environmental Protection Agency Fact Sheet for the Multi-Sector General Permit. Defendants
seek judicial notice of the following (Dkt. No. 67, “DRJN”; Dkt. No. 87, Supplemental DRJN):
(a) Exhibit A, Public Health Goals of the California Office of Environmental Health Hazard
Assessment; (b) Exhibit B, Compilation of Water Quality Goals, Office of Information
Management and Analysis; (c) Exhibit C, Judgment, Mateel Envt’l Justice Found. v. Office of
Envt’l Health Hazard Assess., No. RG15754547 (Cal. Sup. Ct. May 2, 2016); and (d) Exhibit D,
Docket Report, Mateel Envt’l Justice Found. v. Office of Envt’l Health Hazard Assess., No. A148711 (Cal. App. Div.). “Generally, a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co.,
Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989). However, a court may take judicial notice of
matters of public records and documents whose authenticity is not contested, including
government documents. Lee v. Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001), overruled on
other grounds by Galbraith v. Santa Clara, 307 F.2d 1119, 1125 (9th Cir. 2002); see also Fed. R.
Evid. 201(b)(2). The Court finds that such documents are appropriate for judicial notice, and
GRANTS the parties requests at Docket Numbers 67, 79, 87, and 89.
2

1

v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the opposing party

2

will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the

3

district court that the opposing party lacks evidence to support its case. Id. If the moving party

4

meets its initial burden, the opposing party must then set out “specific facts” showing a genuine

5

issue for trial in order to defeat the motion. Id. (quoting Anderson, 477 U.S. at 250). The

6

opposing party’s evidence must be more than “merely colorable” and must be “significantly

7

probative.” Anderson, 477 U.S. at 249–50. Further, that party may not rest upon mere allegations

8

or denials of the adverse party’s evidence, but instead must produce admissible evidence that

9

shows a genuine issue of material fact exists for trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz
Cos., Inc., 210 F.3d 1099, 1102–03 (9th Cir. 2000); Nelson v. Pima Cmty. College Dist., 83 F.3d

11
United States District Court
Northern District of California

10

1075, 1081–82 (9th Cir. 1996) (“mere allegation and speculation do not create a factual dispute”);

12

Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (“conclusory

13

allegations unsupported by factual data are insufficient to defeat [defendants’] summary judgment

14

motion”).

15

When deciding a summary judgment motion, a court must view the evidence in the light

16

most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson,

17

477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). However, in

18

determining whether to grant or deny summary judgment, a court need not “scour the record in

19

search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)

20

(internal quotations omitted). Rather, a court is entitled to “rely on the nonmoving party to

21

identify with reasonable particularity the evidence that precludes summary judgment.” See id.;

22

Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (“The district

23

court need not examine the entire file for evidence establishing a genuine issue of fact, where the

24

evidence is not set forth in the opposing papers with adequate references so that it could

25

conveniently be found.”). Ultimately, “[w]here the record taken as a whole could not lead a

26

rational trier of fact to find for the nonmoving-party, there is no genuine issue for trial.”

27

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation

28

omitted).
3

1
2

II.

DISCUSSION
“The Safe Drinking Water and Toxic Enforcement Act of 1986, more frequently referred

3

to as Proposition 65, prohibits persons, in the course of business, from knowingly [discharging or]

4

releasing certain chemicals ‘known to the state to cause cancer or reproductive toxicity into water

5

or onto or into land where such chemical passes or probably will pass into any source of drinking

6

water.’” California v. Kinder Morgan Energy Partners, No. 07-CV-1883-MMA, 2010 WL

7

11463973, at *3 (S.D. Cal. June 8, 2010) (quoting Cal. Health & Safety Code § 25249.5). Put

8

simply, plaintiff must demonstrate that: (1) defendants are “persons, in the course of business,”

9

(2) who knowingly discharge or release (3) certain prohibited chemicals (4) into water or land that
does or may pass into any source of drinking water. Here, plaintiff claims that defendants are

11
United States District Court
Northern District of California

10

discharging a prohibited chemical, namely, lead, which eventually flows into a source of drinking

12

water. The Court discusses each of the four elements outlined above.

13

With respect to the first and third elements, defendants concede that they are persons as

14

defined by the statute and that lead is a prohibited chemical. The Court thus focuses on the

15

remaining two elements of plaintiff’s claim. With respect to whether a “discharge” or “release”

16

occurred under California law, the California Code of Regulations provides:

17
18
19
20
21

Stormwater runoff from a place of doing business containing a listed chemical,
the presence of which is not the direct and immediate result of the business
activities conducted at the place from which the runoff flows, is not a “discharge”
or “release” within the meaning of the Act. For purposes of this subsection,
“business activities” does not include parking lots.
27 Cal. Code Reg. § 25401(c).
Here, defendants aver that the lead detected in samples of stormwater runoff from their

22

facility is “not the direct and immediate result of their business activities,” and thus not a

23

“discharge or release” as defined by Prop. 65. Rather, they claim the presence is due to naturally-

24

occurring amounts of lead in the soil and from uses of the land by previous owners. (Dkt. No. 86

25

at 3–4.) Plaintiff challenges defendants’ evidentiary showing as self-serving and inadmissible.

26
27
28
4

1

Plaintiff does not persuade.3 First, the declarant, Ms. Yolynn St. John, describes herself as

2

the safety and environmental supervisor for defendants. (Dkt. No. 86 at 1.) In such capacity, St.

3

John avers that she is responsible for the following: facilitating safety in the field, inspections,

4

and taking care of water sampling and reporting for defendants. (Id.) As such, she is aware that

5

none of the activities defendants conduct on the facility in question deal with lead. (Id. at 2–3.)

6

She asserts that the lead produced in the sampling data does not come from defendants’ industrial

7

processes, but rather from the soils in Northern California as a naturally occurring substance. (Id.

8

at 3–4.) Such can constitute appropriate evidence to create a triable issue of material fact here.

9

Furthermore, plaintiff’s evidence in this regard is insufficient to demonstrate that
detectable levels of lead in defendants’ stormwater runoff results from defendants’ business

11
United States District Court
Northern District of California

10

activities. For instance, plaintiff cites the permit issued to defendants which describes defendants’

12

operations at the facility thus: “Operations at the Glendale Yard facility consist of all activities

13

required to store and manufacture rock aggregate products, temporarily store non-toxic materials

14

(scrap roofing shingles), scrap metal and storage for soil and organic debris. [Specifically:] [1]

15

5093 Scrap and Waste Materials [and 2] 142—Crushed & Broken Stone Including Rip Rap.”

16

(Dkt. No. 81-1 at 23.)4 On such bases, plaintiff argues that one could infer that defendants’

17

discharge of lead is the direct and immediate result of their business activities. However, plaintiff

18

does not demonstrate that any of the above activities has actually caused the discharge of any lead

19

onto or outside of the facility at issue. The record before the Court lacks any evidence from which

20

the Court could conclude that defendants’ business activities cause discharges or releases of lead

21

into a source of drinking water. Thus, plaintiff fails to meet its initial burden of production to

22
23
3

24
25
26
27
28

Plaintiff has also offered evidence demonstrating that the waters into which defendants
discharge may be sources of drinking water. Defendants assert that this is not so, yet offer no
evidence to the contrary. As the Court finds that triable issues exist, it declines to make findings
in this regard. Further factual development as to exactly what waterways defendants’ stormwater
runoffs affect and whether the same flow into a source of drinking water would be beneficial for
any such findings.
4

Defendants assert that they do not conduct any activities regarding organic debris, and
are attempting to modify the permit to reflect such correction. It is listed only as a permitted use,
not an actual use.
5

1

demonstrate affirmatively that no reasonable trier of fact could find for defendants. See Celotex,

2

477 U.S. at 323; Soremekun, 509 F.3d at 984.
Accordingly, the Court DENIES plaintiff’s motion for summary judgment.

3
4

III.

CONCLUSION

5

For the foregoing reasons, the Court DENIES plaintiff’s motion for summary judgment.

6

The Court SETS a case management conference for Monday, August 14, 2017 at 11:00

7

a.m. in the Federal Building, 1301 Clay Street, Oakland, California, Courtroom 1. No later than

8

August 7, 2017, the parties must file a joint case management conference statement, in accordance

9

with the Civil Local Rules of the Northern District of California and this Court’s Standing Order.
Such statement should inform the Court of the status of plaintiff’s Clean Water Act claims, and

11
United States District Court
Northern District of California

10

should focus on the next steps for this litigation, including a proposed schedule. Failure to comply

12

may result in sanctions.

13

This Order terminates Docket Number 73.

14

IT IS SO ORDERED.

15

Dated: July 21, 2017
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
6