In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 3795

DECLARATION of Brent H. Allen in Support re: (235 in 1:04-cv-04973-SAS) MOTION for Settlement Defendant Coastal Chem, Inc.'s Notice of Motion and Motion for Good Faith Settlement.. Document filed by Coastal Chem, Inc.. (Attachments: #1 Exhibit 01, #2 Exhibit 02, #3 Exhibit 03, #4 Exhibit 04, #5 Exhibit 05, #6 Exhibit 06, #7 Exhibit 07, #8 Exhibit 08, #9 Exhibit 09, #10 Exhibit 10)Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:04-cv-04973-SAS(Allen, Brent)

Exhibit 9

Case 1:00-cv-01898-SAS-DCF Document 3611

Filed 02/04/13 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In Re: Methyl Tertiary Butyl Ether ("MTBE")
Products Liability Litigation

This document relates to:

City of Fresno v. Chevron US.A. Inc., et al

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STIPULATION AND ORDER RE
SUMMARY JUDGMENT ON
PLAINTIFF'S CLAIM FOR
TRESPASS
Master File No. 00 Civ. 1898
MDL 1358 (SAS)
M21-88

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STIPULATION AND ORDER RE SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM
FOR TRESPASS

The undersigned parties hereby stipulate as follows:
WHEREAS, on October 22, 2003, Plaintiff City of Fresno ("Plaintiff' or the "City") filed
its Complaint against Defendants Chevron U.S.A. Inc., eta!, in the Superior Court for the State
of California, San Francisco County, alleging that Defendants were liable for contaminating the
City of Fresno's public drinking water supplies with MTBE and TBA. The Complaint included
a claim for relief for Trespass.
WHEREAS, the case was removed to federal court and transferred to this Court.
WHEREAS, on October 28, 2004, Plaintiff filed a First Amended Complaint, which
included a claim for relief for Trespass.
WHEREAS, on June 20, 2011, this Court issued an order disposing of Plaintiff Orange
County Water District's claim for Trespass on summary judgment in the matter Orange County

Water District v. Unocal, et al. 04 Civ. 4968 (the "OCWD" matter).
WHEREAS, on December 12,2012, a group of Defendants submitted a letter brief to the
Court requesting permission to a file a Motion for Summary Judgment regarding the City's
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Trespass claim. The let!er brief was joined by Defendant Nella Oil Company. Defendants' letter
brief explained that their Motion for Summary Judgment regarding Trespass would argue that
the ruling in the OCWD matter should be applied consistently to the City of Fresno case.
Specifically, Defendants argued that:
•

This Court has already found in the OCWD matter that, under California law, ''A
trespass is an invasion of the interest in the exclusive possession of land, as by
entry upon it ... " In re Methyl Tertimy Butyl Ether ("MTBE") Prods. Liab. Litig.,
824 F. Supp. 2d 524, 545 (S.D.N.Y. 2011) (quoting Wilson v. Interlake Steel Co.,
185 Cal. Rptr. 280,283 (1982) (emphasis added by Court).)

•

The Court further noted that a usufructuary right is appropriative, and that ·'[t]he
right of an appropriator ... is ... subordinate to an overlying right-holder." !d. at
546.

•

In disposing of the Orange County Water District's claim Cor trespass because the

District lacked exclusive poss(;ssion, this Court furlhcr noted that ''exdusive
possession is a necessary prerequisite to bringing a trespass claim." In re Methyl
Tertiary Butyl Ether Prods. Uab. Litig., 279 F.R.D. 131, 139 (S.D.N.Y. 2011 ).

•

The City of Fresno's trespass claim is no different. Plaintiff does nol have an
exclusive right such that it can assert a claim for trespass under California law.

WHEREAS, on December 21, 2012, Plaintiff submitted a Jetter brief opposing
Defendants' request, responding to the points raised in the Defendants' December 12 letter, and
arguing that summary judgment of the Trespass claim would be improper. Specifically, Plaintiff
argued the following:

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• The ruling in OCWD should nol be applied to the City of Fresno because the City
was different than the Orange County Water District: use of water for domestic
purposes carries the highest priority under the California Constitution, the City
has a public water system permit issued by the State, has the right to withdraw
water fI'om the aquifer to provide water to the pUbJic, and is exercising both the
State's rights through the pennit and its own water purveyor rights.
• The City is entitled to a full panoply of ton: remedies. County ofSanra Clara v,
Allantic Richjield, Co, 1J 7 Cal. App, 4th 292, 313 (2006).

WHEREAS, on December 31,2012, Defendants submitted a reply letter brief to the
Court responding to Plaintiff's contentions.
WHEREAS, the Court heard argument regarding the potential motion on
January 11,20! 3, inCluding the City'S argument that it was asserting different rights than OCWD
by virtue or its extraction and sale orwater pmstlant to a State permit. In the argument, it was
pointed out that this Court ruled in the OCWD matter, "OCWD's common law claims derived
from its property rights in the groundwater within its territory" and H[eJarlier in this [OCWD]
litigation OCWD argued, and this Court accepted, both that OCVlD has usufructuary rights in
the groundwater lhat it alleges that the defendants have contaminated [citations] and that lhese
rights are not subservient. .. Purthermore, it is on the basis of these property rights that OCWD
is able to pursue its common Jaw claims." (676 F. Supp. 2d 139, 146 & nAO), The Court
indicated that (1) it appeared that the decision in OCWD would apply here, and the basis of the
trespass claims of the City and OCWD were not materially different such that the result would be
different. and (2) the parties should not file summary judgment motions where the claims are not

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materially distinguishable from claims adjudicated by the Court in motions in focus cases

applying the same State's law.
WHEREAS, the parties are mindful of the Court's directive and do not want to
unneccssari Iy burden the Court.
WHEREAS, Plaintiff is willing to forego the summary judgment process on the Trespass
claim so long as Plainti ff does not waive the right to appeal the decision applying the OCWD
ruling to this case or to argue in any such appeal that the OCWD ruling was incorrect. Plaintiff
retains the right to argue all grounds for appeaJ, except that Plaintiff does, however, waive the
right to appeal this order on the grounds that the entry of it is procedurally improper.
Accordingly, the parties agree to and request that the following order be entered by the
COllrt in lieu of briefing and hearing a Motion for Summary Judgment:

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:
1,

Summary Judgment is entered against Plaintiff on the Trespass claim based on the

reasoning and authorities set forth above, in the Court's trespass decision in the OCWD case, in
the parties' letter briefs filed in this case, and in the hearing on January 11, 2013.
2,

The Trespass claim against all Defendants is dismissed with prejudice,

3.

Plaintiff shall :-etain the right to appeal this order as if it were a ruling granting a

defense Motion for Summary Judgment. Signing this stipulation and entry of this order shall in
no way be construed as any waiver of the right to appeaL
4,

Plaintiff retains the right to argue all grounds for appeal, except that Plaintiff

does, however, waive the right to appeal this order on the grounds that the entry of it is
procedurally improper. Plaintiff may not challenge the entry of summary judgment on the
grounds that the parties did not fully brief the issue or submit sufficient evidence to the Court
because the parties are all voluntarily submitting to this abbreviated process.

so STIPULATED:
Dated:

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2013

By
MICHAEL AXLINE
EVAN EICKMEYER
Miller, Axline, & Sawyer
1050 Fulton Avenue Suite 100
Sacramento, California 95825-4225
[phone]
Telephone:
Facsimile:
[phone]
Attorneys for Plaintiff
CITY OF FRESNO

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,2013

By

,2013

By

Sedgwick LLP
2900 K Street, NW
llarbourside Suite 500
Washington, D.C. 20007
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants
SHELL OfL COMPANY, TEXACO REFlNING AND
MARKETfNG INC., EQUILON ENTERPRISES LLC,
AND F.QUrVA SERVICES LLC
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Dated:

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,2013

By

([e-mail])
LISA S. MEYER ([e-mail])
Eimer Stahl LLP
224 South Michigan Avenue, Suite 1100
Chicago, IL 60604
Telephone
[phone]
Facsimile:
[phone]
Attorneys for Defendant
ClTGO PETROLEUM CORPORA nON

SMRIi 40797H891 2

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[e-mail]
101 W. Broadway, Suite 1600
San Diego, CA 92101
Telephone: [phone]
Facsimile: (619) 696·7124
Attorney for Defendant
KERN OIL & REFIN 'G CO.
,/'

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Dated:\-<V(_"".J,.<.~rJ.J......l__' 2013
By
LECLAIRRYAN, LLP
[e-mail]
44 Montgomery Street, 18th Floor
San Francisco, California 94104·4705
Telephone: (415) 391·7111
Facsimile: [phone]
A[torneys fOr Defendant
NELLA OIL CaMP NY

1'\
JON D. ANDER a
Latham & W ms L
650 Town Center Dr., 20th Floor
Costa Mesa, CA 92626
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant CONOCOPHTLLIPS
COMPANY, individually and as successor· in-interest
to Defendant TOSCO CORPORATfON and Phillips
Petroleum Company

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,2013

13y

1100 Louisiana, Suite 4000

Houston, Texas 77002

Tel: [phone]

Fax: [phone]

CHARLES C. CORRELL JR.

101 Second Street, Sui te 2300

San Francisco, California 94105

Tel: [phone]

Fax: [phone]

Attorneys for Defendants
CHEVRON U.S.A. INC. AND UNION OIL
COMPANY OF . LIFORNIA
Dated:

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,2013

By

Blank Rome LLP

One Logan Square, 130 N. 18th Street

Philadelphia, Pennsylvania 19103-6998

Telephone:

[phone]

Facsimile:
[phone]

Attorneys for Derendant

LYONDELL CHEMICAL COMPANY, formerly

known as "ARCO CHEMICAL COMPANY"

Grecnber

uri

210] L Street, N.W., Suite 1000

Washington, DC 20037

Telephone:
[phone]

Facsimile:
[phone]

Attorneys for Defendant

COASTA L CHEM, INC.

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Case 1:00-cv-01898-SAS-DCF Document 3611

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\.2013

By
COLLEEN p~
DIANA PFEFFER MARTIN
Hunton & Williams LLP
550 So, Hope Street, Suite 2000
Los Angeles, California 90071
Telephone:
(213) 532·2000
Facsimile:
[phone]
Attorneys for Defendants
TESORO CORPORATION (FIKIA TESORO
PETROLEUM CORPORA TION) AND TESORO
REFrNING and MARKETING COMPANY
(ERRONEOUSLY NAMED AS TESORO REFTNING
AND MARKETING COMPANY, INC.)

,2013

By
Bracewell & Giuliani LLP
711 Louisiana St., Suite 2300
Houston, Texas 77002
Telephone:
(713) 22 J. J335
Facsimile:
(713)221·2159
Attorneys Jor Defendants
ULTRAMAR INC" VALERO MARKETING AND
SUPPLY COMPANY and VALERO REFINING
COMPANY ·CALIFORNIA

SO ORDERED:

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