Camsi IV v. Hunter Technology Corp.

• Citation: 230 Cal.App.3d 1525,282 Cal.Rptr. 80
• Decision Date: 05 June 1991
• Docket Number: No. H006806,H006806
• Court: California Court of Appeals
• Parties: CAMSI IV, Plaintiff and Appellant, v. HUNTER TECHNOLOGY CORPORATION, Defendant and Respondent.

Page 80

282 Cal.Rptr. 80

230 Cal.App.3d 1525

CAMSI IV, Plaintiff and Appellant, v. HUNTER TECHNOLOGY CORPORATION, Defendant and Respondent.

No. H006806.

Court of Appeal, Sixth District, California.

June 5, 1991.

As Modified on Denial of Rehearing

July 2, 1991.

Review Denied Sept. 18, 1991.

Ralph J. Swanson, Stacy L. Saetta and Berliner, Cohen & Biagini, San Jose, for plaintiff and appellant .

Kurt W. Melchior, Alan D. Miller and Nossaman, Guthner, Knox & Elliott, San Francisco, for defendant and respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

Hunter Technology Corporation manufactured printed circuit boards on a parcel of real property in Santa Clara County for a period of years ending in 1983. Title to the parcel passed to CAMSI IV, a California general partnership, in May 1985. In December 1988 CAMSI IV sued Hunter, and several other defendants, alleging in pertinent part that in its manufacturing operation Hunter had discharged harmful substances referred to by CAMSI IV as "volatile organic chemicals" (VOCs), including trichloroethene (TCE), into the parcel's soil and groundwater, that a government agency had ordered the VOCs be cleaned up, and that as a result of the agency's order CAMSI IV was secondarily liable for the cost of the cleanup and had lost a potential sale of part of the parcel. Hunter's general demurrers to CAMSI IV's second amended complaint were sustained without leave to amend. CAMSI IV appeals from the ensuing judgment for Hunter.

We shall conclude that on the face of the second amended complaint CAMSI IV's claims against Hunter were barred by the applicable statute of limitations, and that neither CAMSI IV nor the record suggests any way in which the complaint could be amended to avoid the bar. Accordingly we shall affirm the judgment.

The appeal presents a pure question of law: Whether on consideration of all well-pleaded facts in CAMSI IV's second amended complaint " 'it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants....' " (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 510 P.2d 1032, fn. omitted; Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94, 234 Cal.Rptr. 178.) Because CAMSI IV was denied leave to amend we construe its allegations liberally "with a view to substantial justice between the parties." (Code Civ.Proc., § 452; cf. Gruenberg v. Aetna Ins. Co., supra, 9 Cal.3d at p. 572, fn. 4, 108 Cal.Rptr. 480, 510 P.2d 1032.)

Reviewed in this light, the second amended complaint states or sufficiently implies the following facts pertinent to our analysis:

Monsanto Company owned the parcel, and conducted its own manufacturing operations there, from 1950 to 1983, and during that time disposed of liquid and solid wastes, including a "non-toxic substance" known as "HMBA," on the parcel. From 1968 to 1983 Monsanto leased a building near the southeastern corner of the parcel to Hunter. In manufacturing printed circuit boards Hunter used TCE and other enumerated VOCs "and operated a subsurface sump where rinse wastewaters were temporarily stored. Releases of TCE [and other VOCs] have been found in the soil and groundwater in the area of HUNTER's former facility."

In or about 1983 Monsanto sold the parcel to third parties, and in October 1984 these or successor owners agreed to sell the parcel to an entity called Kimball Small Properties (KSP).

Before close of escrow for the purchase, "and as part of [KSP's] 'due diligence' investigation," a KSP representative discussed "the nature of contamination of the Subject Property" with an apparently knowledgeable representative of Monsanto. The Monsanto representative represented "that HMBAs were the only type of toxic [sic] material on the Subject Property which required cleanup. This representative of MONSANTO did not inform [KSP] that the presence of other toxic substances had been reported by MONSANTO's consultants, Emcon ..., in its tests of soil and groundwater near the northern corner of the Subject Property."

The sale to KSP was completed in December 1984. CAMSI IV was formed on May 1, 1985; KSP (which was the general partner of a limited partnership which, in turn, was one of the two partners of CAMSI IV) transferred the parcel to CAMSI IV on that date.

In July 1985 the San Francisco Bay Regional Water Quality Control Board "issued a waste discharge requirement order naming MONSANTO and KSP as dischargers.... The July 1985 Order set forth guidelines for cleanup of the HMBA and mandated investigation of the groundwater and soil of the Subject Property, partly because TCE ... and other VOCs had been found thereon and thereunder."

"The July 1985 Order did not state that the TCE and other VOC contamination had reached levels sufficiently high to pose a health risk and did not identify an entity responsible for the presence of those substances. The July 1985 Order was not adopted to impose liability upon CAMSI IV or any other entity for cleanup of the TCE and VOC contamination, and no such liability was imposed. CAMSI IV was thus not harmed by the July 1985 Order."

In November 1985 CAMSI IV sold "an uncontaminated portion of the Subject Property which had been removed from the scope of the July 1985 Order."

In February 1986 CAMSI IV sold "another uncontaminated portion of the Subject Property which had likewise been removed from the scope of the July 1985 Order."

In early June 1987 the Regional Board "issued a letter to MONSANTO and HUNTER stating the Control Board's intent to issue a tentative order for the cleanup of TCE contamination on the Subject Property.... This tentative order was apparently based upon the results of groundwater and soil testing near HUNTER's former location--a new and different area of the Subject Property from that where the July 1985 Order had earlier reported TCE concentrations. These tests revealed for the first time that TCE and other VOCs existed on the Subject Property at levels sufficiently high to warrant action by the [Regional Board] and that the likely source of that contamination was HUNTER and/or MONSANTO. This information and the resulting proposed tentative order constituted the first time CAMSI IV had suffered appreciable harm caused by identifiable culpable parties."

"Shortly thereafter, in early June 1987, a potential purchaser of the Subject Property from CAMSI IV withdrew its offer due to the recent discovery of toxic contamination thereon."

In September 1987 the Regional Board "issued a tentative order naming MONSANTO, HUNTER and KSP as responsible parties for the cleanup and abatement of TCE and other VOC contamination on the Subject Property."

"On March 16, 1988, the Control Board adopted a cleanup order, in substantially the same form as the tentative order, for the remediation of TCE contamination and other contamination on the Subject Property, naming MONSANTO and HUNTER as primarily responsible parties and CAMSI IV as secondarily responsible.... The 1988 Order identifies HUNTER as a discharger because releases of the types of chemicals used in its processes have been found in the soil and groundwater of the Subject Property beneath HUNTER's former facility. MONSANTO is a named discharger because it owned and occupied the Subject Property during the period in which chemicals were released either by MONSANTO or HUNTER. CAMSI IV is a named discharger solely because it is the current owner of the Subject Property."

To these basic allegations CAMSI IV added a number of separate counts designed to support theories of relief against various defendants. The third, fourth, and fifth counts were directed against Hunter.

The third count (for "negligence") alleged in pertinent part that Hunter had "a duty to conduct its operation safely and in accordance with all government regulations, including those regulations governing the disposal of toxic materials, which duty extends to CAMSI IV as the subsequent owner" of the parcel and that "[w]ithin the last three years, CAMSI IV learned that HUNTER breached its duty to CAMSI IV by negligently disposing of TCE and other VOCs in a manner which allowed those substances to enter the soil and groundwater of the Subject Property. Also within the last three years, CAMSI IV suffered appreciable harm from HUNTER's negligence."

The fourth count (for "negligence per se") alleged in pertinent part that "California Water Code sections 13050, 13261 and 13264 make it unlawful for any person to dispose of hazardous materials in a manner that poses a public health risk through contamination of groundwater.... [p] Within the last three years, CAMSI IV learned that HUNTER, through its disposal of TCE and other VOCs in a manner which has contaminated the groundwater of the Subject Property, violated California Water Code sections 13050, 13261, and 13264, thereby acting in a manner that is negligent per se. [p] As a subsequent owner of the Subject Property after HUNTER's tenancy, CAMSI IV was among the persons intended to be protected by the Water Code sections herein cited."

The fifth count (for "strict liability") alleged in pertinent part that "[b]y using TCE and other VOCs in its processing of printed circuit boards, HUNTER was engaged in an ULTRAHAZARDOUS ACTIVITY FOR WHICH IT IS STRICTLY LIABLE for all harm caused by its use and disposal of said chemicals. [p] Within the last three years, CAMSI IV learned that HUNTER had caused appreciable harm to CAMSI IV through HUNTER's ultrahazardous activity. The harm that CAMSI IV has suffered and continues to suffer as a direct and proximate result of HUNTER's ultrahazardous activity is the type of harm which made its activity abnormally dangerous."

Hunter demurred to CAMSI IV's second amended complaint on the grounds that it did not state facts sufficient to support a legally cognizable theory of recovery against Hunter and that each of CAMSI IV's claims against it was in any event barred by the statute of...