San Diego Unified Port District v. Monsanto Company et al

Filing 487

ORDER: The Port District's Motion for Summary Judgment of Affirmative Defenses (ECF No. 426 ) is granted as to affirmative defenses 6, 31-35, 37-45, and 64 and is otherwise denied. Signed by Judge William Q. Hayes on 3/26/2020. (ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SAN DIEGO UNIFIED PORT
DISTRICT, a public corporation; and
CITY OF SAN DIEGO, a municipal
corporation,

Case No.: 15-cv-578-WQH-AGS
ORDER

Plaintiffs,

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v.

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MONSANTO COMPANY; SOLUTIA
INC.; and PHARMACIA
CORPORATION,

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Defendants.

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HAYES, Judge:
The matter before the Court is the Motion for Summary Judgment of Affirmative

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Defenses filed by Plaintiff San Diego Unified Port District. (ECF No. 426).
I.

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PROCEDURAL BACKGROUND1

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On March 13, 2015, Plaintiffs San Diego Unified Port District (the “Port District”)

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and the City of San Diego (the “City”) initiated this action by filing a Complaint. (ECF No.

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The relevant factual background is set forth in the Court’s Order on Monsanto’s Motions for Summary
Judgment against the Port District.
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1). On August 3, 2015, the Port District and the City filed separate First Amended

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Complaints against Defendants Monsanto Company, Solutia Inc., and Pharmacia

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Corporation (collectively, “Monsanto”). (ECF Nos. 24, 25). In its First Amended

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Complaint (“FAC”), the Port District brings claims against Monsanto for public nuisance,

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equitable indemnity, and purpresture relating to the alleged contamination of San Diego

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Bay (the “Bay”) from polychlorinated biphenyls (“PCBs”) manufactured by Monsanto.

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(ECF No. 25).

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On September 28, 2016, the Court issued an Order granting in part and denying in

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part Monsanto’s Motion to Dismiss the Port District’s FAC. (ECF No. 81). The Court

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granted the Motion to Dismiss the Port District’s equitable indemnity claim and denied the

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Motion to Dismiss the Port District’s purpresture and public nuisance claims.

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On April 14, 2017, Monsanto filed a First Amended Answer and Counterclaims.

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(ECF No. 110). On May 12, 2017, the Port District filed a Motion to Strike Monsanto’s

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Affirmative Defenses (ECF No. 112) and a Motion to Dismiss Monsanto’s Counterclaims

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(ECF No. 113). On January 30, 2018, the Court issued an Order granting the Port District’s

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Motion to Dismiss Monsanto’s Counterclaims and denying the Port District’s Motion to

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Strike Monsanto’s Affirmative Defenses. (ECF No. 192). On April 19, 2018, the Port

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District filed a Motion for Judgment on the Pleadings on Monsanto’s affirmative defenses.

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(ECF No. 213). On September 6, 2018, the Court issued an Order denying the Port

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District’s Motion for Judgment on the Pleadings. (ECF No. 253).

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On August 2, 2019, Monsanto filed Motions for Summary Judgment against the Port

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District on the Port District’s request for an abatement remedy (ECF No. 422), the Port

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District’s purpresture claim (ECF No. 423), and the Port District’s public nuisance claim

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(ECF No. 424). On August 2, 2019, the Port District filed a Motion for Summary Judgment

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of Affirmative Defenses. (ECF No. 426). The Port District moves for partial summary

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judgment against Monsanto on several of the affirmative defenses asserted by Monsanto

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in its First Amended Answer. On October 1, 2019, Monsanto filed an Opposition to the

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Port District’s Motion for Summary Judgment. (ECF No. 449). On October 18, 2019, the

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Port District filed a Reply. (ECF No. 455).

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On December 6, 2019, the Court heard oral argument on the Motions for Summary

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Judgment.

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II.

CONTENTIONS

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The Port District moves for summary judgment in its favor on several of Monsanto’s

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affirmative defenses. The Port District contends that Monsanto’s affirmative defenses

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under the Comprehensive Environmental Response, Compensation, and Liability Act of

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1980 (“CERCLA”), as amended by the Superfund Amendments and Reauthorization Act

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of 1986, 42 U.S.C. §§ 9601 et seq., and the California Hazardous Substance Account Act

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(“HSAA”), Cal. Health & Safety Code §§ 25300 et seq., fail because there are no pending

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CERCLA or HSAA claims. The Port District contends that Monsanto’s equitable

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affirmative defenses are not appropriate in this public nuisance action. The Port District

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contends that Monsanto asserts several defenses that negate an element the Port District

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must prove. The Port District contends that Monsanto’s affirmative defenses based on the

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Port District’s negligence and comparative fault “fail because comparative fault cannot be

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used to circumvent the governmental immunity afforded under the California Tort Claims

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Act . . . .” (ECF No. 426-1 at 11). The Port District further contends that “Monsanto has

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failed to produce admissible evidence to support its affirmative defenses based on

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negligence and comparative fault.” (Id.).

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Monsanto contends that it properly asserts as an affirmative defense that the Port

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District’s public nuisance claim is a disguised products liability claim. Monsanto contends

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that its equitable defenses are appropriate because the Port District’s witnesses testified to

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facts that show “justice and right” require the equitable defenses to remain. (ECF No. 449

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at 8). Monsanto contends that summary judgment is not the proper vehicle to dispose of

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non-affirmative defenses. Monsanto contends that the California Tort Claims Act does not

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preclude Monsanto’s negligence or comparative fault affirmative defenses, and the Port

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District’s witnesses “testified at length regarding the Port’s own negligence in causing or

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contributing to the alleged PCB discharges into the Bay . . . .” (Id. at 7-8).

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RULING OF THE COURT

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Monsanto alleges in its sixty-fourth affirmative defense that the Port District’s

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“alleged nuisance claim is barred, in whole or in part, as a disguised product liability

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claim.” (ECF No. 110 at 42 ¶ 64). This affirmative defense does not apply in a

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representative public nuisance action for abatement. See Cty. of Santa Clara v. Atl.

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Richfield Co., 137 Cal. App. 4th 292, 309-310 (2006) (“A representative public nuisance

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cause of action seeking abatement of a hazard created by affirmative and knowing

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promotion of a product for a hazardous use is not ‘essentially’ a products liability action

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‘in the guise of a nuisance action’ . . . .” (quoting City of San Diego v. U.S. Gypsum Co.,

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30 Cal. App. 4th 575, 586-87 (1994)). The Port District is proceeding on a representative

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public nuisance claim in which the Port District’s remedy is limited to abatement. The Port

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District’s Motion for Summary Judgment on Monsanto’s sixty-fourth affirmative defense

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is granted.

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Monsanto alleges in its sixth affirmative defense that the Port District’s “alleged

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claims are barred, in whole or in part, by the doctrine of laches.” (ECF No. 110 at 29 ¶ 6).

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“[N]o lapse of time can legalize a public nuisance, amounting to an actual obstruction of

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public right.” Cal. Civ. Code § 3490; See People v. Gold Run Ditch & Mining Co., 66 Cal.

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138, 152 (1884) (“Against [a public nuisance], however long continued, the State is bound

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to protect the people.”); People v. ConAgra Grocery Prods. Co., 17 Cal. App. 5th 51, 136

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(2017) (explaining that, “[s]ince laches is an equitable defense, it could not be asserted

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against the government, even if it were not barred by Civil Code section 3490, because

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such an application would defeat a public policy aimed at protecting the public” from

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public nuisances). Laches is not available as an affirmative defense in this representative

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public nuisance action. The Port District’s Motion for Summary Judgment on Monsanto’s

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sixth affirmative defense is granted.

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Monsanto further alleges defenses that are based on the Port District’s alleged lack

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of standing to bring its representative public nuisance claim and seek an abatement remedy,

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that are based on the Port District’s alleged inequitable actions, and that are based on the

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Port District’s alleged negligence and comparative fault. “A defense which demonstrates

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that plaintiff has not met its burden of proof is not an affirmative defense.” Zivkovic v. S.

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Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). “An affirmative defense is one that

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precludes liability even if all of the elements of the plaintiff’s claim are proven.” Gomez v.

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J. Jacobo Farm Labor Contractor, Inc., 188 F. Supp. 3d 986, 991 (E.D. Cal. 2016) (citation

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omitted); see Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 471 (S.D. Cal.

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2013) (“Affirmative defenses are allegations unrelated to the plaintiff’s prima facie case

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that deny the plaintiff’s right to relief, even if all allegations in the complaint are true.”

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(citing Fed. Deposit Ins. Corp. v. Main Hurdman, 655 F. Supp. 259, 262 (E.D. Cal. 1987)).

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However, identifying a defense as “affirmative” when it negates an element of the

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plaintiff’s case not does not make that defense legally insufficient such that a motion for

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summary judgment should be granted on that defense. See Kohler v. Islands Rests., LP,

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280 F.R.D. 560, 567 (S.D. Cal. 2012) (denying partial summary judgment on defenses of

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lack of standing and failure to state a claim, explaining that “simple mislabeling . . . is not

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grounds for striking or granting partial summary judgment on [the mislabeled] defenses”).

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In order to succeed on a motion for summary judgment, the moving party must still “show[

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] that there is no genuine dispute as to any material fact and [that] the movant is entitled to

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judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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The sufficiency of the legal and factual basis of Monsanto’s remaining defenses, as

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well as the applicability of the defenses to a representative action for abatement of a public

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nuisance, will be addressed and determined at trial. The Port District’s Motion for

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Summary Judgment on Monsanto’s 3-5, 8, 14-16, 26-27, 46-48, 53, 55, 74-76, 80, and 84

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affirmative defenses is denied.2

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CONCLUSION

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The Port District’s Motion for Summary Judgment of Affirmative Defenses (ECF

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No. 426) is granted as to affirmative defenses 6, 31-35, 37-45, and 64 and is otherwise

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denied.

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Dated: March 26, 2020

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The Port District moves for summary judgment on Monsanto’s 31-35 and 37-45 affirmative defenses in
which Monsanto alleges affirmative defenses applicable to CERCLA and HSAA actions. Monsanto has
withdrawn its 31-35 and 37-45 affirmative defenses.
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