Pease & Curren Refining, Inc. v. Spectrolab, Inc.

• Decision Date: 13 August 1990
• Docket Number: No. CV 89-4468 DT (BX).,CV 89-4468 DT (BX).
• Citation: 744 F. Supp. 945
• Court: U.S. District Court — Central District of California
• Parties: PEASE & CURREN REFINING, INC., Plaintiff, v. SPECTROLAB, INC., Defendant.

744 F. Supp. 945

PEASE & CURREN REFINING, INC., Plaintiff, v. SPECTROLAB, INC., Defendant.

No. CV 89-4468 DT (BX).

United States District Court, C.D. California.

August 13, 1990.

Arthur P. Greenfield, Steven T. Graham, Deborah Fabricant, Snell & Wilmer, Irvine, Cal., for plaintiff.

William K. Swank, Leslie M. Smario, Brobeck, Phleger & Harrison, Los Angeles, Cal., for defendant.

MEMORANDUM OF DECISION

TEVRIZIAN, District Judge.

BACKGROUND

This case arises from an accident which occurred at the refining plant of Plaintiff Pease & Curren Refining, Inc. ("Pease & Curren") on March 21, 1989. Pease & Curren extracts and refines precious metals from liquid and solid by-products (hereinafter "waste") it receives from various clients. Defendant Spectrolab, Inc. ("Spectrolab") is one such client.

Currently before this court are three motions brought by Spectrolab pursuant to Fed.R.Civ.P. 12(b)(6) and 12(f) to dismiss and strike portions of Pease & Curren's complaint. For the purposes of these motions, this court accepts all of the facts asserted by Pease & Curren, the non-moving party, as true. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 reh'g denied 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969) (Jenkins), In Re Beef Industry Antitrust Litigation, 600 F.2d 1148, 1154 (5th Cir. 1979).

On two occasions in either late January or early February, 1989, Spectrolab requested that Pease & Curren pick-up nine fifty-five gallon drums of waste from Spectrolab's facility in Sylmar, California. The labels on the drums indicated that the drums contained a palladium and silver compound in a nitric acid medium. Pease & Curren dispatched its employee, Jorge Robledo, to pick up the waste. On both occasions, Robledo refused to transport the waste because it was contained in rusty tin drums rather than in steel drums as required by law. Spectrolab ultimately transferred the bulk of the waste to steel drums, but was unable to remove some sludge from the bottom of the tin drums. Robledo then transported both the steel drums and the tin drums to Pease & Curren's facility.

Sometime after receiving the waste, Pease & Curren tested small samples from each drum in order to determine the precious metal content. The tests revealed that some of the steel drums contained an alkaline cyanide solution rather than nitric acid. Samples then were taken to Spectrolab for analysis. Spectrolab did not contact Pease & Curren regarding the samples until March 24, 1989. In the interim, Pease & Curren did not process the waste in the drums containing the alkaline cyanide solution.

Pease & Curren did proceed to salvage silver and palladium from the sludge at the bottom of the tin drums. Following its customary procedure, Pease & Curren removed the sludge from the drums, ran it through filter paper, rinsed it with clear water, spread it onto large trays and placed it outside to dry.

On March 21, 1989 at approximately 10:45 A.M., the material believed to be silver and palladium unexpectedly exploded ("the explosion") and killed Robledo. The Orange County Fire Department and Bomb Squad closed down and took control of Pease & Curren's facility for approximately thirty-six hours. The Orange County Health Care Agency and the fire department ordered Pease & Curren to retain a company to remove from Pease & Curren's facility all of the remaining waste received from Spectrolab. Pease & Curren has incurred expenses exceeding $39,000 for this removal.

Analysis of the Spectrolab waste which had been labeled as silver and palladium in a nitric acid solution revealed that it also contained titanium powder, silver chloride, cyanide and nitrates. At the time it filed its initial complaint, Pease & Curren believed that the combination of these elements caused the explosion.

Pease & Curren filed a complaint in this court against Spectrolab for: (1) Recovery of Response Costs Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) §§ 101, 107, 113, 42 U.S.C. §§ 9601, 9607, 9613(b) (Supp.1989), (2) Negligence, (3) Strict Liability, (4) Negligent Misrepresentation, (5) Declaratory Relief, and (6) Equitable Indemnity. Spectrolab's answer asserted numerous defenses and a cross complaint which are not currently at issue. This court has jurisdiction over this matter pursuant to CERCLA, § 113, 42 U.S.C. § 9613(b) and 28 U.S.C. § 1331.

Subsequent to the filing of its initial complaint, Pease & Curren discovered that the titanium metal flake is explosive when it is dried, and that the drying of the titanium metal flake caused the explosion. Thus, Pease & Curren moved to amend its complaint accordingly. Although Spectrolab opposed this motion, this court granted Pease & Curren's motion for leave to file a first amended complaint.

Contrary to its initial complaint, Pease & Curren now admits that the mislabeling by Spectrolab of the drums as containing nitric acid rather than alkaline cyanide waste ("the mislabeling") was not the cause in fact of the explosion. Pease & Curren nevertheless retained allegations regarding the cyanide related mislabeling in its first amended complaint.

Spectrolab now brings before this court motions to: (1) strike all allegations in Pease & Curren's first amended complaint which refer to the mislabeling of the drums, (2) dismiss Pease & Curren's prayer for punitive damages, and (3) dismiss Pease & Curren's prayer for attorney's fees.

MOTION TO STRIKE THE MISLABELING RELATED ALLEGATIONS

Spectrolab seeks to have this court strike a total of thirty-three lines from Pease & Curren's first amended complaint pursuant to Fed.R.Civ.P. 12(f). The most sanguine of this text reads as follows:

Specifically, Pease & Curren is informed and believes and thereon alleges that the employees responsible for labeling the hazardous waste were improperly trained and that they had previously mislabelled hazardous waste shipped to other refiners and disposal sites and that Spectrolab had notice of the prior incidents of mislabeling.

. . . . .

Spectrolab knew or should have known that it is against the law to transport cyanide and nitric acid on the same vehicle and that if cyanide and nitric acid are mixed, a lethal gas is created.

. . . . .

In conscious disregard for the safety of Pease & Curren and its employees, Spectrolab so negligently and carelessly stored, labelled and manifested its waste so as to cause Pease & Curren to transport a shipment of cyanide and nitric acid waste on a single vehicle.

This court "may order stricken from any pleading any ... redundant, immaterial, impertinent, or scandalous matter." Fed. R.Civ.P. 12(f). Motions to strike, however, are generally viewed with disfavor and are not frequently granted. Clement v. American Greetings Corp., 636 F.Supp. 1326, 1332 (S.D.Cal.1986) (Clement), citing 5 Wright & Miller, Federal Practice & Procedure 2d § 1380, Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200, 201 n. 1 (D.C.Cir. 1981), citing 5 Wright & Miller, Federal Practice & Procedure § 1380 (1969). A motion to strike pursuant to Rule 12(f) should be denied "unless it can be shown that no evidence in support of the allegation would be admissible." Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2nd Cir. 1976) (citations omitted). The question of relevancy and admissibility usually should not be determined solely on the pleadings. Id. (citations omitted).

Spectrolab argues that the mislabeling allegations are immaterial because Pease & Curren admits that the mislabeling did not cause the explosion and does not claim to have suffered any injury as a result of the mislabeling.

Conversely, Pease & Curren argues that the mislabeling allegations are material to its claim for punitive damage because the mislabeling was part of a pattern of carelessness on the part of Spectrolab. Pease & Curren further claims that this pattern of activity was a proximate cause of Pease & Curren's injury.

Spectrolab's motion to strike is premature at best. As Spectrolab itself points out, in order for Pease & Curren to prevail on its claim for punitive damages under its current claim, Pease & Curren must demonstrate that Spectrolab acted with malice. Cal.Civ.Code § 3294(a) (Supp.1989). Malice is defined as "despicable conduct which is carried on by the defendant with a conscious disregard of the rights or safety of others." Cal.Civ.Code § 3294(c)(1) (Supp. 1989). At this preliminary stage, this court cannot determine that the mislabeling is not relevant to the issue of the degree to which Spectrolab's conduct might have been malicious as defined by section 3294. Indeed, construing the facts most favorably to Pease & Curren, Spectrolab's knowledge of mislabeling and illegal transportation of wastes appears to be quite relevant to whether Spectrolab acted with conscious disregard for the safety of others. Spectrolab's motion to strike the mislabeling allegations therefore is denied without prejudice.

MOTION TO DISMISS THE PRAYER FOR PUNITIVE DAMAGES

In its prayer for relief, Pease & Curren has requested punitive damages against Spectrolab. Spectrolab seeks to have this court dismiss this prayer as having been insufficiently pleaded. On the face of Spectrolab's motion to dismiss Pease & Curren's prayer for punitive damages, it is unclear whether Spectrolab intended to bring this motion under Fed.R. Civ.P. 12(b)(6) or Fed.R.Civ.P. 12(f). Spectrolab's motion to dismiss is more properly brought under Fed.R.Civ.P. 12(b)(6) and will be so treated.

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the complaint is construed in the light most favorable to the non-moving party, and all of the allegations contained in the non-moving party's complaint are taken as true. Jenkins, 395 U.S. at 421-22, 89 S.Ct. at 1848-49. This court will grant a motion to dismiss for...