California Toxic Substances v. Payless Cleaners, No. S-02-2389 LKK/DA.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: Karlton
• Citation: 368 F.Supp.2d 1069
• Parties: CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff, v. PAYLESS CLEANERS; College Cleaners; Heidinger Cleaners; Norge Village Cleaners; Cava, Inc., A California Corporation; Lobdell Cleaners; City of Chico; Norville R. Weiss; Janet L. Weiss; Paul A. Tullius; Victoria Tullius; Robert H. Heidinger; Inez N. Heidinger; 5th and Ivy, A General Partnership; Richard C. Peters and Ramona W. Peters, Individually and as Trustees of the Peters Family Trust; Betty M. Rollag; Randall Rollag; and Tami Rollag, Defendants. and Related Counter-Claims.
• Decision Date: 04 March 2005
• Docket Number: No. S-02-2389 LKK/DA.

368 F.Supp.2d 1069 CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff,
v.
PAYLESS CLEANERS; College Cleaners; Heidinger Cleaners; Norge Village Cleaners; Cava, Inc., A California Corporation; Lobdell Cleaners; City of Chico; Norville R. Weiss; Janet L. Weiss; Paul A. Tullius; Victoria Tullius; Robert H. Heidinger; Inez N. Heidinger; 5th and Ivy, A General Partnership; Richard C. Peters and Ramona W. Peters, Individually and as Trustees of the Peters Family Trust; Betty M. Rollag; Randall Rollag; and Tami Rollag, Defendants. and
Related Counter-Claims. No. S-02-2389 LKK/DA. United States District Court, E.D. California. March 4, 2005.

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Rose B. Fua, Deputy Attorney General, Oakland, CA, for Plaintiffs Cal. Dept. of Toxic Substances Control.

David Rabbino, Resolution Law Group, Lafayette, CA, for Defendants Payless Cleaners, Norville & Janet Weiss.

James Underwood, Wilkins, Underwood & Johnson, Redding, CA, for Defendants College Cleaners, Lobdell Cleaners, and Betty, Randall & Tami Rollag.

Francis M. Goldsberry II, Goldsberry, Freeman, Guzman & Ditora, Sacramento, CA, David R. Frank, Office of the City Attorney, Chico, CA, for Defendant City of Chico.

David R. Isola, Isola Bowers, LLP, Lodi, CA, for Defendants Robert & Inez Heidinger.

Patrick Riddle, Paul D. Sheldon, of Counsel, Law Offices of Patrick Riddle, PC, Stockton, CA, for Defendant California Water Service Company.

Gary Vinson, Greve, Clifford, Wengel & Paras, LLP, Sacramento, CA, for Defendant 5th and Ivy.

Curtis Parvin, Richard Crites, Sedgwick, Detert, Moran & Arnold, LLP, Irvine, CA, for third-party Defendant Maytag Corp., as successor-in-interest to Norge Corp.

Celene M.E. Boggs, Stammer, McKnight, Barnum & Bailey, Fresno, CA, for third-party Defendant Martin Franchises, Inc.

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Gordon H. Casmajor, Five Doris Way, Chico, CA, for Norge Village Cleaners & Cava, Inc.

Vartkes Vartabedian, Chico, CA, for Norge Village Cleaners & Cava, Inc.

Jan A. Greben, Joseph B. Adams, Greben & Associates, Santa Barbara, CA, for Romona W. Peters & Richard C. Peters.

ORDER

KARLTON, Senior District Judge.

Ramona W. Peters and Richard A. Peters (the "Peters"), individually and as trustees of the Peters Family Trust, bring claims for indemnity and contribution pursuant to CERCLA, 42 U.S.C. §§ 9601 et seq., as well various state law based claims against third-party defendant Maytag Corporation ("Maytag"). This matter is before the court on Maytag's motion to dismiss the Peters' Second Amended Third-Party Complaint. I decide the motion based on the papers and pleadings filed herein and after oral argument.

I. BACKGROUND

This action arises out of a two-mile wide perchloroethylene ("PCE") "plume" located south of the central business district of Chico, California. On October 31, 2002, the California Department of Toxic Substances Control ("DTSC") filed a cost recovery action against various individuals and companies alleging rights under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq. and state law based claims.¹ The DTSC named several dry cleaning businesses as well as the property owners of the sites where those businesses operated upon its belief that the PCE emanated from those businesses. Among the defendants are the Peters. The DTSC seeks to recover its costs in investigating and remediating the PCE-contaminated groundwater in the Central Plume.

The Peters are the owners of property in the City of Chico from which hazardous substances, including PCE, were allegedly released when a dry cleaner business operated on the property. DTSC FAC at 4-5. As part of their response to the DTSC's suit against them, the Peters filed a Third Party Complaint, and have now filed a Second Amended Third Party Complaint ("SAC"), against various entities. The Peters bring suit against Maytag as Norge Corporation's ("Norge") successor-in-interest, which, according to the Peters, manufactured and provided the dry cleaning equipment and PCE used on their property.²

II. FACTS³

The Peters allege that, prior to their ownership, third party defendant CAVA, Inc. ("CAVA") constructed, owned, and operated Norge Village Cleaner ("Dry Cleaner") on the property at issue. SAC at 4. Pursuant to a franchise agreement, CAVA purchased and used dry cleaning machines and solvents for their dry cleaning operation from Norge, who designed and manufactured the machines and solvents. Id.

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The dry cleaning machines were designed to use, process and discharge solvents containing PCE. Id. Norge also decided and controlled the layout of the Dry Cleaner, including where the machines were installed and the location of floor drains for disposal of waste water. Id. at 6.

According to the Peters, Norge installed the machines to use, process, and dispose of wastewater laden with PCE through a floor piping connected with the City of Chico's sewer system. Id. at 5.

IV. STANDARD FOR DISMISSAL PURSUANT TO FED. R. CIV. P. 12(b)(6)

On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n. 6, 83 S.Ct. 1461, 10 L.Ed.2d 678 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.; see also Wheeldin v. Wheeler, 373 U.S. 647, 648, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (inferring fact from allegations of complaint).

In general, the complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). So construed, the court may not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In spite of the deference the court is bound to pay to the plaintiff's allegations, however, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the ... laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

V. ANALYSIS

A. CERCLA CONTRIBUTION CLAIM

Maytag first contends that the Peters fail to allege sufficient facts to support a claim for liability under CERCLA. I examine that contention below.

CERCLA allocates the rights and responsibilities of those involved in hazardous waste remediation. In creating § 113(f)of CERCLA (42 U.S.C. § 9613(f)), Congress provided a right of recovery for potentially responsible parties ("PRPs") who have incurred hazardous waste cleanup costs by expressly allowing a contribution action against other PRPs.⁴ Thus, a PRP who is found to be jointly and severally liable for response costs can sue to recover those expenses paid in excess of its own liability by spreading the costs to other PRPs. The Peters bring suit against Maytag for contribution in their capacity as a PRP to the DTSC.

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To establish a prima facie case against Maytag, the Peters must show that: (1) PCE is a hazardous substance; (2) there has been a release of PCE at the Peters' facility;⁵ (3) the release or threatened release caused the Plaintiffs to incur response costs; and (4) defendants are within one of four classes of persons subject to CERCLA's liability provisions. United States v. Chapman, 146 F.3d 1166 (9th Cir.1998); Castaic Lake Water Agency v. Whittaker Corp., 272 F.Supp.2d 1053, 1059 (C.D.Cal.2003). Maytag challenges only the last of these elements, asserting that it does not fall within any of the four classes as required to be held liable.

The Peters contend that they properly seek to hold Maytag liable under CERCLA because it arranged for the disposal of the PCE in question. CERCLA provides that potentially liable parties include "persons who arranged for the treatment or disposal of a hazardous substance at the facility."⁶ 42 U.S.C. § 9607(a)(3).

Specifically, an arranger is:

any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances.

42 U.S.C. § 9607(a)(3). The disposal of a hazardous substance includes the discharging, depositing, or placing of any hazardous waste into any waters.⁷ 42 U.S.C. § 9601(29); 42 U.S.C. § 6903(3).

The Peters allege that Maytag "designed, manufactured, and actually installed the dry cleaning machines that produced PCE at the Dry Cleaner and/or CAVA." SAC at 6. According to them, the installation included connecting the water waste discharge piping from each of the 16 machines to the building drain, which in turn were connected to the City of Chico's sewer system. Additionally, they allege

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that Norge "determin[ed] the location [where] the machines were to be installed, which included specific consideration of the location of floor drains for disposal of waste water." Id. According to the Peters, these facts can sustain a claim of CERCLA liability because they establish that Maytag "otherwise arranged" for the disposal of the PCE.

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