144 Cal.App.4th 689, C052420, Nelson v. Superior Court
| Citation | __ Cal.Rptr.3d __,144 Cal.App.4th 689 |
| Docket Number | C052420 |
| Date | 06 November 2006 |
| Parties | Nelson v. Superior Court |
| Court | California Court of Appeals Court of Appeals |
Page 689
ORIGINAL PROCEEDING; application for a writ of mandate. Super. Ct. No. 02AS00535, Writ issued.
Page 690
[Copyrighted Material Omitted]
Page 691
COUNSEL
Baron & Budd, Scott Summy, Celeste A. Evangelisti, John L. Yates, Stephen Blackburn; Sher & Leff, Victor M. Sher, Todd Eric Robins; Stevens & O'Connell, Charles J. Stevens, David A. Cheit, Bradley A. Benbrook for Petitioner.
Sheppard, Mullin, Richter & Hampton, Jeffrey J. Parker, Lori Osmundsen, Whitney D. Jones; McDermott Will & Emery, Peter J. Sacripanti, Michael R. O'Neill, Rory K. Little, for Real Party in Interest.
OPINION
BLEASE, Acting P. J.
This is a petition for writ of mandate in a civil case. Petitioner and plaintiff D.J. Nelson Trust owns and operates Fruitridge Vista Water Company. Real party in interest and defendant Exxon Mobil Corporation refined gasoline containing the additive methyl tertiary butyl ether (MTBE), which was supplied to gas stations near plaintiff’s water
Page 692
system. Plaintiff claimed MTBE leaked into its water system from the stations and asserted causes of action against defendant for strict liability, negligence, trespass, and nuisance. The trial court granted a defense motion for judgment on the pleadings on the strict liability cause of action.
In this petition, plaintiff claims the court erred and asserts that the case should proceed to trial on all causes of action. We agree. To preclude further litigation that could result in a costly second trial, we shall grant the requested relief. (See Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 319 [7 Cal.Rptr.3d 628] ; Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1183 [272 Cal.Rptr. 304].)
Factual Summary
“‘A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.’” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064 [20 Cal.Rptr.3d 562] , quoting Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [79 Cal.Rptr.2d 544].) Accordingly, “[w]e accept as true the complaint’s factual allegations and give them a liberal construction.” (Burnett v. Chimney Sweep, supra, 123 Cal.App.4th at p. 1065, citing Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516 [101 Cal.Rptr.2d 470].) Here, the defense motion challenged the fifth amended complaint. The following summary (including quotations) is taken from the allegations therein.
Defendant refined gasoline containing MTBE,1 which was supplied to certain gas stations (that defendant did not itself operate) in the area of Fruitridge’s groundwater wells. Gas stored at these stations leaked into the soil and contaminated plaintiff’s water system with MTBE. As a result, plaintiff incurred significant expense, loss, and damage associated with taking steps to remove MTBE from its system and to secure alternative water supplies.
Defendant knew or reasonably should have known that gasoline distribution and retail systems statewide included leaking gasoline delivery systems.
Page 693
More specifically, defendant knew or reasonably should have known that facilities, including those in the vicinity of plaintiff’s water system, commonly lacked adequate storage facilities for gasoline containing MTBE. Further, defendant knew or should have known that operators of these facilities were unaware of either the special hazards of MTBE or the steps necessary to eliminate or mitigate those hazards.
Defendant knew that release of MTBE was inevitable because a substantial percentage of gas stations “would store such gasoline without taking reasonable, appropriate or special precautions, such as by placing the gasoline in inadequate and leaking gasoline delivery systems, and without taking reasonable, appropriate or special measures to monitor, detect, and respond to” the release of MTBE.
Defendant knew or reasonably should have known MTBE “would mix easily with groundwater, move great distances, resist biodegradation or bioremediation, render drinking water unsafe and/or unpotable, cause significant expenses to remove from public drinking water supplies, and otherwise threaten the public health and welfare.” MTBE has “a strong affinity for water.” Once released into the subsurface, MTBE “separate[s] from other gasoline constituents in the presence of moisture.” MTBE spreads “farther and faster than other components of gasoline,” and is resistant to biodegradation. It can “migrate through the soil, the groundwater, penetrate deeper within the acquifer, and cause persistent contamination that can threaten the potability of drinking water wells.” MTBE makes drinking water “putrid, foul, and unfit for purveying to consumers” even if the MTBE is only present at low levels. Further, MTBE is a carcinogen that is a threat to public health.
Defendant “chose not to warn customers, retailers, regulators or public officials, including Fruitridge” of the risks of MTBE contamination. Defendant represented to purchasers of gasoline containing MTBE, the public, and government agencies that it was environmentally sound and appropriate for widespread distribution, sale, and use. In fact, defendant “represented that gasoline containing MTBE could be handled the same as ordinary gasoline, and required no special measures to protect against or respond to suspected releases to the subsurface.”
Motion for Judgment on Pleadings
Plaintiff alleged strict liability based on a defect in the design and manufacture of MTBE (specifically asserting the benefits of MTBE are greatly outweighed by its costs and negative impact) and by defendant’s
Page 694
failure to adequately warn of its dangers. Defendant and other refiners2 moved for judgment on the pleadings on this cause of action, claiming strict liability did not apply because plaintiff was not harmed by a use of the product (the MTBE-laden gasoline) after it had reached an ultimate consumer or user. The defense also argued that applying strict liability in these circumstances was inconsistent with its purpose and that existing law provided ample alternative means for plaintiff to pursue its claims.
The trial court granted the defense motion, citing caselaw emphasizing that the strict liability doctrine was developed mainly to protect consumers, users, and (to some extent) bystanders who are not in a position to protect themselves. The court noted it had “found no case authority supporting the proposition that a bystander who is injured by a product not as a result of the use, consumption or even possession of the product by a user or consumer, may avail itself [of] the additional protections of the law of strict products liability.” The court found it dispositive that there was no allegation that fuel containing MTBE was improperly released into the ground and groundwater “by virtue of the service stations’ use or consumption of the fuel as a product.” The court observed: “While California law permits bystanders injured by a product, in certain circumstances, to recover under strict product liability, it has apparently only been when that injury was attendant to the use or consumption of the product, not while the product was still possessed and stored by a participant in the stream of commerce.”
Writ Proceedings
The trial court granted the motion for judgment on the pleadings on April 14, 2006. On April 19, plaintiff filed the instant petition for writ of mandate and request for an immediate stay of the pending trial. On April 21, this court advised the parties that it was considering issuing a peremptory writ in the first instance and that any opposition was to be filed on or before May 1. This court also stayed the pending trial. This court subsequently granted an extension of time for defendant to file its opposition, which was filed on May 11. Plaintiff filed a reply on May 22. On its own motion, this court heard oral argument on September 22, 2006.
DISCUSSION
Defendant argues that strict liability does not apply under California law unless the plaintiff’s injury was caused by a consumer use of the allegedly defective product. By consumer, defendant means the “ultimate” consumer or user. We disagree. As we shall explain, strict liability broadly extends to
Page 695
products that have left control of the manufacturer and are placed on the market. Thus, foreseeable uses of gasoline reasonably include storing it at a gas station, transferring it through gas pumps into a vehicle, and storing it in a vehicle’s tank before it is actually burned as fuel. Permitting injured third parties or “bystanders” to recover for damages associated with any of these uses is consistent with strict liability doctrine in this state. We begin with a brief review of the strict liability doctrine and its underlying policy rationale, with particular emphasis on bystander liability.
“The elements of a strict products liability cause of action are a defect in the manufacture or design of the product or a failure to warn,...
To continue reading
Request your trial