Estate of Robert Renzel, Deceased et al v. Ventura et al

Filing 65

Order by Hon. Ronald M. Whyte granting in part and denying in part 43 Motion to Dismiss. Plaintiffs shall file an amended complaint addressing the deficiencies discussed in this order within 14 days. (rmwlc2, COURT STAFF) (Filed on 12/11/2015)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

United States District Court
Northern District of California

11
12

ESTATE OF ROBERT RENZEL,
DECEASED, et al.,
Plaintiffs,

13

ORDER REGARDING MOTION TO
DISMISS

v.

14
15

Case No. 5:15-cv-01648-RMW

Re: Dkt. No. 43

LUPE VENTURA, et al.,
Defendants.

16

On October 16, 2015, plaintiffs Estate of Robert Renzel, Deceased; Susan Carter; Ann

17
18

Renzel Sebastian; Robert E. Renzel Trust; and Bascom Avenue Development LLC (“plaintiffs”)

19

filed a First Amended Complaint against 28 defendants pursuant to the Comprehensive

20

Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9607, and

21

related state law provisions. Dkt. No. 38 (“FAC”). Before the court is the motion to dismiss filed

22

by defendants Hyang Bae Whang, Seon Guen Whang, and Kyu Chuk Whang, Dkt. No. 43. For the

23

reasons set forth below, the court GRANTS-IN-PART and DENIES-IN-PART the motion to

24

dismiss.

25

I.

26
27

BACKGROUND
This case arises out of alleged environmental contamination that occurred at a dry cleaning

business known as Ritz Cleaners located at 520-526 S. Bascom Avenue (formerly known as 5201

28
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

1

526 San Jose-Los Gatos Road) in San Jose, California (“the property”). FAC ¶¶ 2, 6. Ritz Cleaners

2

operated at the site starting in the 1940s. Id. ¶ 6.
According to the FAC, plaintiffs Robert Renzel, Susan Carter, Ann Renzel Sebastian, and

3
4

the Robert E. Renzel Trust are prior owners of the property. Id. ¶¶ 3-6. Bascom Avenue

5

Development LLC is the current owner of the property. Id. ¶ 7. The FAC does not describe how or

6

when each plaintiff acquired or lost ownership of the property. The FAC names 28 defendants

7

who allegedly operated Ritz Cleaners from 1947 to 2012. Id. ¶¶ 9-36. Defendants Hyang Bae

8
9

Whang, Seon Guen Whang, and Kyu Chuk Whang, who bring the instant motion, allegedly
operated Ritz Cleaners from approximately 1986 to 1988.1 Id. ¶¶ 23-25.
The FAC alleges that the property has been impacted by the presence of

10

United States District Court
Northern District of California

11
12
13
14

tetrachloroethylene (“PCE”) and “other solid and hazardous wastes.” Id. ¶ 41. According to
plaintiffs, PCE is a manmade, industrial solvent that has been used in significant quantities in the
dry cleaning industry since the 1940s.2 Id. ¶ 42-43. Plaintiffs describe PCE as a toxic, long-lived,
volatile, chlorinated hydrocarbon and likely carcinogen. Id. ¶ 46. Plaintiffs allege that PCE and
many of its degradation products are closely regulated by the state of California and the federal

15
government. Id. ¶ 46. The FAC explains that PCE degrades to TCE, which in turn degrades to
16
DCE, which in turn degrades to vinyl chloride, which in turn degrades to ethene, and finally to
17
18
19
20
21
22

carbon dioxide, water, and free chlorine. Id. ¶ 45. Plaintiffs allege that PCE, TCE, DCE, and vinyl
chloride constitute “hazardous substances” under federal and state law and constitute “hazardous
waste and solid waste” under federal law. Id. ¶ 46. Plaintiffs generally allege that each defendant
“caused or contributed to the past or present handling, storage, treatment, transportation,
generation, release, or disposal of hazardous substances, hazardous waste, and/or solid waste in
the environment in, at, and around” the property. Id. ¶ 48.

23

The FAC asserts the following claims against all defendants: (1) cost recovery under

24
25
26
27
28

1

For brevity, unless otherwise specified, this order simply refers to the moving Whang defendants
as “defendants.”
2
According to the FAC, “[c]ommon synonyms for PCE include perc, perchlor, carbon bichloride,
carbon dichloride, ethylene tetrachloride, petrochlorothylene, perclene, perk, perchloroethene,
1,1,2,2- tetrachloroethylene, and tetrachloroethene.” Id. ¶ 44.
2
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

1

CERCLA, 42 U.S.C. § 9607(a); (2) abatement of a public nuisance; (3) abatement of a private

2

nuisance; (4) negligence; (5) continuing trespass; (6) breach of contract; (7) express indemnity; (8)

3

equitable indemnity; (9) contribution; (10) waste; (11) ultrahazardous activity; (12) cost recovery

4

under California’s Carpenter-Presley-Tanner Hazardous Substance Account Act (“HSAA”); and

5

(13) declaratory relief. Dkt. No. 38 at 1.
Plaintiffs filed this action on April 10, 2015 “in defense of claims against them” to “avoid

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14

or minimize their alleged liability associated with responding” to the environmental contamination
described above. Dkt. No. 1 ¶ 1. The original complaint contained only a claim for cost recovery
under CERCLA. Plaintiffs filed a First Amended Complaint on October 16, 2015, naming
additional defendants and adding twelve additional causes of action. Dkt. No. 38. The moving
defendants3 filed the instant motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) on November 2, 2015. Dkt. No. 43. Plaintiffs filed an opposition on November 16, 2015,
Dkt. No. 50, and defendants filed a reply on November 23, 2015, Dkt. No. 58.
II.

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint

15
16
17
18
19
20
21
22
23
24
25
26
27
28

ANALYSIS

for failure to state a claim upon which relief can be granted. Such a motion tests the legal
sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering
whether the complaint is sufficient, the court must accept as true all of the factual allegations
contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, the court need
not accept as true “allegations that contradict matters properly subject to judicial notice or by
exhibit” or “allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008)
(citation omitted). While a complaint need not contain detailed factual allegations, it “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

3

Other defendants filed answers, and others have not made an appearance in this case.
3

5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

1

reasonable inference that the defendant is liable for the misconduct alleged. The plausibility

2

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that

3

a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal citation omitted).

4

In ruling on a Rule 12(b)(6) motion, a court generally may not consider materials beyond

5

the pleadings. Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012). An

6

“exception to this general rule,” however, is that “a court may take judicial notice of matters of

7

public record without converting a motion to dismiss into a motion for summary judgment, as long

8

as the facts noticed are not subject to reasonable dispute.” Id. (citation omitted).

9
10

A.

Standing (All Claims)

Defendants argue that plaintiffs have failed to allege sufficient facts to show that they have

United States District Court
Northern District of California

11

standing. To establish standing under Article III of the Constitution, “a plaintiff must show (1) an

12

‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained

13

of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’” Susan B.

14

Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Lujan v. Defenders of Wildlife,

15

504 U.S. 555, 560-61 (1992)).

16
17
18
19
20
21
22
23

Specifically, defendants note that the five named plaintiffs have failed to allege who owned
the property in what year, whether they owned the property together at the same time or separately
at different times, or how the conveyance(s) of the property were made. Dkt. No. 43-1 at 6.
Without such information, defendants argue, plaintiffs have not shown which plaintiffs were
allegedly injured or how defendants’ actions in the late 1980s allegedly caused those injuries.
Plaintiffs respond by noting that the FAC indicates that each defendant is alleged to have caused
harm to the property and that each Renzel party is a current or prior owner of the property. Dkt.
No. 50 at 4.
Plaintiffs’ argument misses the mark. As defendants point out in reply, for example, the

24
Whangs could not have caused any injury (or owed a duty of care) to a plaintiff that owned and
25
sold the property before the Whangs operated a dry cleaning business on the property. Dkt. No. 58
26

at 2. Without alleging which plaintiffs owned the property, when they owned it, and which

27
4

28
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

1

plaintiffs entered into contracts with defendants, plaintiffs have failed to show that they have

2

standing. Accordingly, the court dismisses plaintiffs’ claims against the moving defendants in

3

their entirety with leave to amend.
The court will now address defendants’ other arguments for dismissing plaintiffs’ claims

4
5

so that plaintiffs can amend those claims, if appropriate, in their amended complaint.

6

B.

7

Defendants assert that the following claims in the FAC are barred by the statute of

8
9
10

United States District Court
Northern District of California

11
12
13
14

Statute of Limitations (Claims 2-4, 6-7, 10)

limitations: Abatement of a Public Nuisance; Abatement of a Private Nuisance; Negligence;
Breach of Contract; Express Indemnity; Waste; and Ultrahazardous Activity. Dkt. No. 43-1 at 1.
According to defendants, inspection reports by the Santa Clara County Environmental Resources
Agency Department of Environmental Health put plaintiffs on notice of PCE spills and the alleged
contamination on March 27, 2006 and again on April 29, 2009.4 Dkt. No. 43-1 at 3-4. According
to defendants, the maximum statute of limitations period for the state law claims listed above is
four years,5 and thus, defendants argue, plaintiffs’ complaint, filed in 2015, is untimely.
Plaintiffs’ opposition brief does not dispute the substance of the reports. Rather, Plaintiffs

15

respond by arguing that the inspection reports are not properly authenticated and not subject to
16
judicial notice and that even if the court were to admit the reports, they mention only Ritz Cleaners
17
personnel, not the names of the landlord-plaintiffs. See Dkt. No. 50 at 2-3. Plaintiffs also argue
18
19

that every repetition of a continuing nuisance gives rise to successive actions for damages until the
nuisance is abated. Id. at 3.

20
21
22
23

The court need not resolve these issues because plaintiffs overlook a more fundamental
issue: the FAC alleges that the Whang defendants ceased operating Ritz Cleaners in 1988, FAC
¶¶ 23-25, decades before plaintiffs filed their complaint. Because the FAC does not specify
particular instances in which each defendant allegedly caused the contamination, the only

24
25
26
27
28

4

Defendants request that the court take judicial notice of these reports. Dkt. Nos. 43-2, 43-3.
Defendants assert that plaintiffs served the reports on defendants prior to filing the FAC. Dkt. No.
43-1 at 3.
5
See Dkt. No. 43 at 4-5 (citing Cal. Civ. Proc. Code §§ 337.2 (four year statute of limitations for
contract claims); 338(b) (three year statute of limitations for property damage claims)).
5
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

1

plausible reading of the complaint is that the Whang defendants’ tortious conduct or breach of

2

contract, if any, occurred no later than 1988, starting the time for the statute of limitations.

3

Moreover, even if releasing PCE may constitute a continuing nuisance—a point the court need not

4

decide at this time—the FAC alleges that “[a]ctive use of PCE at the dry cleaning business was

5

discontinued in 2009,” FAC ¶ 58, which supports defendants’ position that the statute of

6

limitations began to run at that time.
If plaintiffs wish to argue that they did not discover defendants’ violations until years later,

7
8
9
10

United States District Court
Northern District of California

11
12
13
14

thus tolling the statute of limitations,6 plaintiffs “must specifically plead facts to show (1) the time
and manner of discovery and (2) the inability to have made earlier discovery despite reasonable
diligence.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 808 (2005) (applying delayed
discovery rule to products liability claim); see also Gregory Vill. Partners, L.P. v. Chevron U.S.A.,
Inc., 805 F. Supp. 2d 888, 902-03 (N.D. Cal. 2011) (dismissing contamination-related claims with
leave to amend to allege facts that would toll statutes of limitations). Not only have plaintiffs
failed to allege when they discovered the alleged contamination or why they were unable to
discover such contamination earlier, as noted above, plaintiffs have not even alleged when they

15
owned the subject property. Plaintiffs may have an explanation that would invoke the delayed
16
discovery rule, but that explanation is not evident from the face of the FAC. Accordingly, the
17
18

court grants the motion to dismiss Claims 2-4, 6-7, and 10 of the FAC against the moving
defendants with leave to amend.

19
C.
20

Timeframe for Release and Specification of Hazardous Substances Under
CERCLA / HSAA (Claims 1 and 12)

21

Defendants assert that the FAC fails state a claim under CERCLA or the HSAA because it

22

does not allege a general timeframe for when the alleged release of hazardous substances occurred

23

or which specific hazardous substances were released. See Dkt. No. 43-1 at 6-8. To establish a

24

prima facie case for recovery of response costs under 42 U.S.C. § 9607(a), a plaintiff must

25
26
27
28

demonstrate:
6

The delayed discovery rule may be invoked to toll the statute of limitations until “the plaintiff
knows both the existence and cause of his injury.” Garcia v. Brockway, 526 F.3d 456, 465 (9th
Cir. 2008) (quoting United States v. Kubrick, 444 U.S. 111, 113 (1979)).
6
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

(1) the site on which the hazardous substances are contained is a
“facility” under CERCLA’s definition of that term; (2) a “release”
or “threatened release” of any “hazardous substance” from the
facility has occurred (3) such “release” or “threatened release” has
caused the plaintiff to incur response costs that were “necessary”
and “consistent with the national contingency plan”; and (4) the
defendant is within one of four classes of persons subject to the
liability provisions of [Section 9607(a).]

1
2
3
4
5

City of Colton v. Am. Promotional Events, Inc.-W., 614 F.3d 998, 1002-03 (9th Cir. 2010). “A

6

claim under the HSAA has the same elements as a claim under CERCLA.” Gregory Vill.

7

Partners, 805 F. Supp. 2d at 897.

8

As to the timeframe argument, defendants cite Coppola v. Smith for the proposition that

9

“[a]t the pleading stage, a time frame need not be alleged with pinpoint precision, but a general
time frame, to the best of [plaintiff]’s ability, should be included.” Coppola v. Smith, 935 F. Supp.

11
United States District Court
Northern District of California

10

2d 993, 1009 (E.D. Cal. 2013). The complaint at issue in Coppola did not allege any timeframe for

12

release, so the court found the pleadings inadequate. See id.
Here, while it is true that the timeframe covered by the FAC spans nearly 70 years,

13
14

plaintiffs point out that Paragraphs 23-25 of the FAC allege that the Whangs operated a dry

15

cleaning business at the property from approximately 1986 to 1988. The FAC similarly alleges the

16

general timeframe that the other named defendants operated a dry cleaning business on the

17

property. See FAC ¶¶ 9-36. The court finds that these allegations, combined with the allegation

18

that PCE, one of the hazardous substances at issue, is used in the dry cleaning industry,7 provide

19

adequate notice regarding when the alleged releases of hazardous substances occurred.
Defendants also complain that plaintiffs use the plural term hazardous “substances” in the

20
21

sections of their complaint dedicated to CERCLA and the HSAA, but plaintiffs do not specify

22

what hazardous substances, other than PCE, were released. Dkt. No. 43-1 at 7. Defendants rely

23

heavily on Coppola in support of their argument. The Coppola court dismissed the plaintiff’s

24

complaint because it referred to PCE but alleged the release of other, unspecified, hazardous

25

substances. 935 F. Supp. 2d at 1009. Plaintiffs here respond that the FAC refers not only to PCE

26
27

7

See FAC ¶¶ 41-46.
7

28
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

1

but also to TCE, DCE, and vinyl chloride as hazardous substances. See FAC ¶¶ 43-46. Plaintiffs

2

also note that another decision in this district denied a motion to dismiss on facts similar to those

3

here. See Tarob M & C Inv'rs, LLC v. Herbert, No. 5:14-CV-04291-PSG, 2015 WL 5728426, at

4

*3 (N.D. Cal. Sept. 30, 2015) (declining to follow Coppola where plaintiff alleged the release of

5

PCE). Here, the court finds that plaintiffs have alleged sufficient facts regarding the release of a

6

hazardous substance.
In sum, the court finds that plaintiffs’ CERCLA and HSAA claims should not be dismissed

7
8

for failure to plead a general timeframe for the release of a hazardous substance.

9

D.

Knowledge of Nuisance (Claims 2 and 3)

Defendants argue that plaintiffs’ nuisance claims fail because the FAC does not allege

10

United States District Court
Northern District of California

11

defendants’ knowledge of a nuisance or plaintiffs’ lack of consent to the nuisance. Dkt. No. 43-1

12

at 8. The parties agree8 that there are three possible theories of nuisance liability: (1) creating or

13

assisting in the creation of the nuisance; (2) possessor liability for unreasonably failing to abate the

14

nuisance (which requires, among other elements, a defendant’s knowledge of the nuisance and the

15

plaintiff’s lack of consent); and (3) permitting a third party to create the nuisance. See Coppola,

16

935 F. Supp. 2d at 1018-19.
Defendants argue that plaintiffs here have asserted only the second nuisance theory,

17
18
19
20
21
22
23

possessor liability, and not the first or third theories. Dkt. No. 58 at 3. Plaintiffs, however, contend
that the defendants misconstrue their allegations and that plaintiffs have “clearly alleged that
[defendants] created or assisted in creating the nuisance” under the first theory. Dkt. No. 50 at 7.
Moreover, plaintiffs argue, defendants’ motion does not challenge the first theory of nuisance
liability. Id.
Despite the arguably unclear headings for plaintiffs’ second and third claims (“Abatement
of a [Public/Private] Nuisance”), the court agrees with plaintiffs that the FAC adequately alleges

24
that defendants have created or assisted in the creation of a nuisance. See, e.g., FAC ¶ 76
25

(“Defendants’ acts and omissions in causing and contributing to releases of hazardous substances,

26
27

8

See Dkt. No. 50 at 6; Dkt. No. 58 at 3.
8

28
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

1

hazardous wastes, and/or solid wastes in, at, and around the Site create a condition that is injurious

2

to health.”) Accordingly, defendants’ arguments about failure to plead knowledge or lack of

3

consent do not apply.

4

E.

Elements of Public Nuisance (Claim 2)

5

Defendants next argue that plaintiffs’ public nuisance claim fails because plaintiffs have

6

not alleged that plaintiffs suffered injuries different in kind from the injuries suffered by the

7

general public. Dkt. No. 43-1 at 9 (citing Cal. Civ. Code § 3493). Plaintiffs respond that it is

8

reasonable to infer that the Renzel plaintiffs, as owners of the property, would suffer greater harm

9
10

United States District Court
Northern District of California

11
12
13
14
15

than the general public would suffer from contamination on plaintiffs’ property. See Dkt. No. 50 at
8-9. Plaintiffs point to paragraph 62 of the FAC, which states that “[a]s a result of Defendants’
releases of hazardous substances, hazardous waste, and/or solid waste at the Site, Plaintiffs have
incurred and will continue to incur response costs in order to investigate and remediate the
contamination.” The court agrees that plaintiffs have adequately alleged that the harm plaintiffs
have suffered from the alleged nuisance is greater than the harm suffered by the general public.
See Schaeffer v. Gregory Vill. Partners, L.P., No. 13-CV-04358-JST, 2015 WL 2267813, at *1112 (N.D. Cal. May 14, 2015) (finding that plaintiffs had shown special injury to their property

16
from plume of contamination that affected entire neighborhood).
17
18
19
20
21
22
23

F.

Negligence (Claim 4)

Defendants argue that plaintiffs’ negligence claim fails because plaintiffs have not alleged
that the Whangs owed them a duty of care or that plaintiffs suffered anything more than economic
loss. Dkt. No. 43-1 at 10 (citing Cty. of Santa Clara v. Atl. Richfield Co., 137 Cal. App. 4th 292,
318, (2006) (“[E]conomic loss alone, without physical injury, does not amount to the type of
damage that will cause a negligence or strict liability cause of action to accrue.”)).
Defendants’ second argument is easily dispatched. Courts have held that “[t]he chemical

24

contamination of a person’s land is sufficient to show a physical injury to the land.” Coppola, 935

25

F. Supp. 2d at 1015 (rejecting argument that plaintiff had alleged only economic injury). Here,

26

plaintiffs have alleged that defendants caused contamination in the soil and the water table

27

underneath the property. See FAC ¶¶ 95-96.
9

28
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

1

Defendants’ argument that plaintiffs have inadequately alleged a duty of care, however, is

2

well taken. As noted above, plaintiffs have failed to allege when they owned the property. Even if

3

it is reasonable to infer that the Whang defendants owed a duty of care to their landlords at the

4

time the Whang defendants operated Ritz Cleaners, plaintiffs have not alleged whether they owned

5

the property during the time of the Whang defendants’ operations. Plaintiffs’ formulaic allegations

6

that “defendants” had a duty of care, without specifying which defendants had the duty or to

7

whom the duty was owed, see FAC ¶ 94, are insufficient.

8
9
10

United States District Court
Northern District of California

11
12
13
14
15

Accordingly, defendants’ motion to dismiss plaintiffs’ negligence claim is GRANTED.
G.

Equitable Indemnity and Contribution (Claims 8 and 9)

Defendants argue that plaintiffs’ claims for equitable indemnity and contribution are
premature because the FAC does not allege that any judgment has yet been rendered against
plaintiffs related to the alleged contamination at the property. Dkt. No. 43-1 at 11-12. “The cause
of action for equitable indemnity accrues when the indemnitee suffers a loss through payment of
an adverse judgment or settlement.” Sullins v. Exxon/Mobil Corp., 729 F. Supp. 2d 1129, 1139
(N.D. Cal. 2010). “California law permits a concurrent tortfeasor to obtain equitable indemnity
only from another concurrent tortfeasor.” Gen. Motors Corp. v. Doupnik, 1 F.3d 862, 866 (9th Cir.

16
1993). Plaintiffs bring their equitable contribution claim under Cal. Civ. Code § 1432, which
17
18
19
20
21
22
23

provides that “a party to a joint, or joint and several obligation, who satisfies more than his share
of the claim against all, may require a proportionate contribution from all the parties joined with
him.” Defendants contend that because plaintiffs have not alleged that they are liable for any
adverse judgment or settlement, there can be no indemnification or contribution.
Plaintiffs first respond by arguing that defendants’ arguments should be stricken for failure
to specifically indicate in defendants’ notice of motion to dismiss, Dkt. No. 43, that defendants
would be attacking claims 8 and 9 of the complaint. Dkt. No. 50 at 11-12. This argument is not

24

persuasive because defendants’ memorandum in support of its motion, Dkt. No. 43-1, was served

25

concurrently with defendants’ notice, and plaintiffs clearly had sufficient time to respond.

26
27

Addressing the substance of defendants’ arguments, plaintiffs note that defendants Alfredo
and Carmen Torres have filed counterclaims against plaintiffs alleging that the plaintiffs are joint
10

28
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

1

tortfeasors. Dkt. No. 50 at 12 (citing Dkt. No. 44 ¶¶ 51-55). Thus, plaintiffs argue, plaintiffs’

2

claims are not premature. Aside from the counterclaims, plaintiffs argue, the FAC alleges that

3

Renzel has incurred and will incur response costs for contamination cleanup. Id.; FAC ¶ 142.

4

Plaintiffs cite Sullins as an example of a case in which the court denied summary judgment on a

5

claim for equitable contribution even in the absence of an adverse judgment or settlement. See 729

6

F. Supp. 2d at 1139.
The Sullins court granted summary judgment for the defendant on a claim for contribution

7
8
9
10

United States District Court
Northern District of California

11
12
13
14

under Cal. Civ. Proc. Code § 875 because the plaintiff had not paid to discharge a judgment,9 but
the court denied summary judgement on a claim for equitable contribution under Cal. Civ. Code
§ 1432. 729 F. Supp. 2d at 1138-39. Sullins is distinguishable from the case at bar, however,
because while there was no judgment against the plaintiffs in that case, there was a preexisting
order by an administrative agency “addressed to both Plaintiffs and Defendant as parties who
[were] jointly responsible for the remediation of the property” at issue. 729 F. Supp. 2d at 1139.
The court found that the administrative “clean-up order constitute[d] the joint obligation required
under § 1432.” Id. At the hearing on this motion, plaintiffs’ counsel represented that plaintiffs

15
recently received a letter from county regulators that may support the existence of a joint cleanup
16
obligation. Because the letter is not presently before the court, however, the court takes no position
17
18

on whether the letter is analogous to the administrative cleanup order in Sullins. On the present
record, there is no joint obligation shared by the Renzel plaintiffs and the Whang defendants.

19
20
21
22

Notably, the Sullins court also granted summary judgement for the defendant against a
claim of equitable indemnity because there had not yet been an adverse judgment or settlement. Id.
at 1139-40. Defendants’ motion also cites Team Enterprises v. Western Investment Real Estate
Trust, which granted judgment on the pleadings for a dry cleaning equipment manufacturer on an

23

equitable indemnity claim because “[i]n the absence of predicate liability, the comparative

24

equitable indemnity claim fails.” Team Enterprises, LLC v. W. Inv. Real Estate Trust, 721 F. Supp.

25
26
27
28

9

That section provides, in relevant part, that “[s]uch right of contribution may be enforced only
after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro
rata share thereof.” Cal. Civ. Proc. Code § 875(c) (emphasis added).
11
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

1

2d 898, 911 (E.D. Cal. 2010), aff’d, 446 F. App’x 23 (9th Cir. 2011). Plaintiffs’ opposition brief

2

does not attempt to distinguish Team Enterprises.

3

The court finds that because plaintiffs have not alleged the existence of a judgment,

4

settlement, or other joint obligation between plaintiffs and defendants, the FAC fails to state a

5

claim for equitable indemnity or contribution.

6

H.

7

Defendants contend that plaintiffs’ ultrahazardous activity claim should be dismissed

8
9
10

United States District Court
Northern District of California

11
12
13
14
15

Ultrahazardous Activity (Claim 11)

because courts have held as a matter of law that the use of PCE in dry cleaning is a widely
accepted activity, the risks of which can be eliminated through the exercise of reasonable care.
Dkt. No. 43-1 at 12. Plaintiffs respond by challenging defendants’ factual assertions and by
arguing that defendants inappropriately attempt to convert their motion into a motion for summary
judgment without submitting any supporting evidence. Dkt. No. 50 at 13-14.
In support of their argument, defendants claim that three cases have disposed of strict
liability claims involving PCE at the pleading stage. See Dkt. No. 43-1 at 12-13 (citing In re
Burbank Environmental Litig., 42 F. Supp. 2d 976, 983 (C.D. Cal. 1998); Schwartzman, Inc. v.
General Elec. Co., 848 F. Supp. 942, 945 (D.N.M. 1993); and Greene v. Product Mfg. Corp., 842

16

F. Supp. 1321, 1326-27 (D. Kan. 1993)). Contrary to defendants’ characterization, Burbank and

17
Greene were decisions made on summary judgment, not at the pleading stage. Moreover, in
18
19
20
21
22
23
24
25
26
27

Schwartzman, the court applied New Mexico law, not California law, and noted: “The New
Mexico Supreme court has not determined whether the use, storage, or transportation of petroleum
products, hazardous substances or hazardous wastes fall within the claim of common law strict
liability.” 848 F. Supp. at 945. These cases hardly support defendants’ argument that courts
commonly dispose of ultrahazardous activity claims involving PCE on motions to dismiss
Given the factual disputes in this case, the court finds that it would be inappropriate to
dispose of plaintiffs’ ultrahazardous claims without further factual development.
I.

Declaratory Relief (Claim 13)

Finally, defendants contend that plaintiffs’ claim for “a declaration that Defendants are
liable to Plaintiffs for all responses [sic] costs incurred or to be incurred by Plaintiffs at the Site as
12

28
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS

1

a result of releases of” hazardous materials, FAC ¶ 170, is not yet ripe. Dkt. No. 43-1 at 14.

2

Defendants cite City of Colton for the proposition that no declaratory relief under CERCLA is

3

available against potentially responsible parties until the moving party first establishes both “the

4

expenditure of recoverable costs and that section 107 liability has been entered by a court as a

5

matter of law.” Dkt. No. 43-1 at 14 (citing City of Colton, 614 F.3d at 1008).
While it is true that in City of Colton, the Ninth Circuit ultimately affirmed summary

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15

judgment in favor of a defendant on a declaratory relief claim, the court explained that “so long as
there has been a release of hazardous substances, and the plaintiff spends some money responding
to it, a claim for declaratory relief is ripe for review.” 614 F.3d at 1005. Here, plaintiffs have
alleged that they “have incurred and will continue to incur response costs.” FAC ¶ 62 (emphasis
added). Accordingly, the court declines to dismiss plaintiffs’ declaratory relief claim on ripeness
grounds.
III.

ORDER
For the reasons set forth above, the Whang defendants’ motion to dismiss the claims

against them is GRANTED-IN-PART and DENIED-IN-PART as follows:
The motion to dismiss all claims for lack of standing is GRANTED.

16
Claims 2-4, 6-7, and 10 are DISMISSED for failure to plead facts that would toll the
17
applicable statutes of limitations.
18
19
20
21
22
23
24
25

Claim 4 is DISMISSED for failure to adequately allege a duty of care.
Claims 8 and 9 are DISMISSED for failure to plead facts supporting an adverse judgment,
settlement, or other joint obligation.
Defendants’ motion to dismiss is DENIED in all other respects.
Plaintiffs shall file an amended complaint addressing the deficiencies above within 14 days
from the date of this order.
IT IS SO ORDERED.
Dated: December 11, 2015
______________________________________
Ronald M. Whyte
United States District Judge

26
27

13

28
5:15-cv-01648-RMW
ORDER REGARDING MOTION TO DISMISS
RS