Clark v. Optical Coating Laboratory, Inc.

• Decision Date: 24 July 2008
• Docket Number: No. A115474.,No. A116901.,No. A115445.,No. A115399.,No. A116164.,A115399.,A115445.,A115474.,A116164.,A116901.
• Citation: 165 Cal.App.4th 150,80 Cal. Rptr. 3d 812
• Court: California Court of Appeals Court of Appeals
• Parties: CARLA M. CLARK et al., Plaintiffs and Appellants, v. OPTICAL COATING LABORATORY, INC., Defendant and Respondent. CARLA M. CLARK et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al., Defendants and Respondents; CHARLES D. COCHRAN, Objector and Appellant. CARLA M. CLARK et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al., Defendants and Respondents; KEITH A. ROBINSON et al., Objectors and Appellants. CARLA M. CLARK et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Defendant and Respondent.

165 Cal.App.4th 150

80 Cal. Rptr. 3d 812

CARLA M. CLARK et al., Plaintiffs and Appellants, v. OPTICAL COATING LABORATORY, INC., Defendant and Respondent.

CARLA M. CLARK et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al., Defendants and Respondents;

CHARLES D. COCHRAN, Objector and Appellant.

CARLA M. CLARK et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al., Defendants and Respondents;

KEITH A. ROBINSON et al., Objectors and Appellants.

CARLA M. CLARK et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Defendant and Respondent.

No. A115399.

No. A115445.

No. A115474.

No. A116164.

No. A116901.

Court of Appeals of California, First District, Division One.

July 24, 2008.

[165 Cal.App.4th 154]

Dell'Ario & LeBoeuf, Alan Charles Dell'Ario, Jacques LeBoeuf; Gonzalez & Robinson, Joseph D. Gonzalez and Keith A. Robinson for Plaintiffs and Appellants.

Eisenberg and Hancock, Jon B. Eisenberg and William N. Hancock for Objectors and Appellants Keith A. Robinson and Gonzalez & Robinson.

Waxler Carner Weinreb Brodsky, Andrew J. Waxler and Gretchen S. Carner for Objector and Appellant Charles D. Cochran.

Edmund G. Brown, Jr., Attorney General, David Chaney, Chief Assistant Attorney General, James Schiavenza, Assistant Attorney General, Tyler B. Pon and David W. Hamilton, Deputy Attorneys General, for Defendant and Respondent State of California.

Barg Coffin Lewis & Trapp, John F. Bargand and Jonathan Polland for Defendant and Respondent Union Pacific Railroad Company.

Collette Erickson Farmer & O'Neill, John V. Erickson and Robert S. Lawrence for Defendant and Respondent Optical Coating Laboratory, Inc.

[165 Cal.App.4th 155]

OPINION

MARGULIES, J.

This toxic tort lawsuit by 32 plaintiffs went to a jury trial against defendants the State of California (the State), Southern Pacific Transportation Company (Union Pacific), and Optical Coating Laboratory, Inc. (OCLI). The trial was marked by repeated objections, sustained by the court, that plaintiffs' attorneys were violating its in limine orders. Ultimately, after warning the attorneys that they were risking a mistrial and exposing themselves to substantial sanctions, the court declared a mistrial based on their cumulative misconduct.

Following the mistrial, the trial court took the following actions from which these consolidated appeals were taken: (1) awarded all defendants a combined total of $1,151,041.25 in attorney fees and costs as sanctions against plaintiffs' attorneys; (2) reconsidered and granted dispositive motions by OCLI and the State that had been denied before trial commenced; and (3) made a separate award to the State of $672,501.25 in attorney fees and $439,535.31 in expert witness fees jointly and severally against all plaintiffs.

Finding no legal basis for the attorney fees, costs, and expert witness fees awarded as sanctions against plaintiffs and their attorneys, we reverse those awards. We also reverse the judgment in favor of OCLI. We affirm the judgment in favor of the State, and the expert fee award made to the State under Code of Civil Procedure¹ section 998.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Overview of Plaintiffs' Allegations

Plaintiffs are 32 individuals who have all lived or worked in the West College Avenue neighborhood of Santa Rosa. In 2000, plaintiffs learned that the private water wells they used for drinking water had been contaminated with trichlorethylene (TCE) and perchlorethylene (PCE). They eventually retained the law firm of Gonzalez & Robinson to investigate the cause of the contamination and pursue compensation from those responsible. Plaintiffs claimed that the contamination caused them to suffer both economic losses and a wide range of adverse health effects.

In 2001, plaintiffs sued the City of Santa Rosa, the County of Sonoma, the State, Union Pacific, OCLI, and several entities that formerly owned or operated dry cleaning businesses near the West College Avenue neighborhood. The trial was bifurcated into liability and damages phases. Just prior to jury selection in the liability phase, all of the solvent defendants—except the State, Union Pacific, and OCLI—settled with plaintiffs.

The relevant facts and allegations pertaining to these three defendants may be summarized as follows:

Union Pacific owned a nine and one-half acre parcel of land, known as 99 Frances Street, located approximately one-half mile northeast of the West College Avenue neighborhood. Beginning in 1967, the Frances Street property and a smaller adjacent property, 1143 Briggs Avenue, had been leased for use by a succession of scrap metal recyclers and auto wreckers. In 1988, the North Coast Regional Water Quality Control Board (Water Board) discovered that the Frances Street site was contaminated with leaking 55-gallon drums, old batteries, large quantities of shredded metal, and aboveground and underground storage tanks. Ultimately, both sites were found to be highly contaminated with TCE, PCE, and other toxic chemicals. Plaintiffs alleged that those contaminants seeped into the groundwater beneath the sites and ultimately migrated into plaintiffs' wells, contributing to their contamination.

OCLI has maintained a facility in Santa Rosa since the 1950's. OCLI developed thin film coating processes for government and industry, and created products at its Santa Rosa facility that use high performance optical thin films to manage light, such as solar cell covers on satellites, camera lenses, and mirrors used in copiers and scanners. In the process of creating certain of its products, OCLI used various industrial solvents, including acetone, PCE, TCE, trichorethane (TCA), and freon 113. Plaintiffs allege that OCLI disposed of over 300 drums containing toxic wastes, including PCE and TCE, at the Frances Street site. They allege that these contaminants migrated from that site onto their properties and into their well water.

Plaintiffs' allegations linking OCLI to the site were based in part on three internal Water Board memoranda. Two of the memos, written in 1990, purported to summarize conversations with an anonymous tipster who claimed that as an employee of Donald Kessler, the owner of an auto wrecking yard leasing the Briggs Avenue site, he had transported a truckload of 55-gallon drums from OCLI to be dumped at the site in approximately 1973. According to the memo, the tipster reported that, at Kessler's instruction, he had emptied the drums' liquid contents on the ground before dumping them. He had seen a total of approximately 300 drums at OCLI ready for disposal on that occasion. The third memo, written two years later, purported to summarize a 1992 telephone conversation between a Water Board staffer and Kessler.² According to that handwritten memo, Kessler stated that drums were in fact either picked up or delivered to his site from OCLI and that, although the drums were supposed to be empty because they were to be used by him for storage of metal waste, some of the drums probably had liquid in them and employees "weren't always paying attention to the matter."

According to plaintiffs, the State's liability arises vicariously from the failure of certain Water Board employees to immediately notify local officials in July 1988, after the Water Board issued a cleanup and abatement order for the Frances Street site, that the contamination of that site was "likely to cause substantial injury to the public health or safety" within the meaning of Health and Safety Code section 25180.7, subdivision (b).³

B. Pretrial Motions

1. The State's Summary Judgment Motion and Motion for Judgment on the Pleadings

The State moved for summary judgment in January 2004, asserting that (1) Health and Safety Code section 25180.7 imposed a mandatory duty on certain State employees but not on the State itself, (2) section 25180.7 could not create tort liability because the injuries claimed by plaintiffs were not actionable under the California Tort Claims Act,⁴ and (3) the undisputed evidence showed that no Water Board employee violated a mandatory duty to disclose under Health and Safety Code section 25180.7. The trial court denied the State's motion, finding that "[p]laintiffs raise triable material issues of fact, specifically showing that the moving party possessed information requiring it to provide warnings earlier, and to more people, than it did."⁵ This court denied the State's ensuing petition for a writ of mandate overturning the trial court's decision, without issuing a written opinion.

In July 2005, the State reiterated the purely legal arguments raised in its summary judgment motion by means of a motion for judgment on the pleadings. In addition, the State asserted one new legal argument—that it was immune from liability under Health and Safety Code section 25400, subdivision (b).⁶ The court, with a different judge presiding, denied that motion as well.

2. OCLI's Summary Judgment Motion

OCLI also moved for summary judgment, arguing among other things that there was no evidence it had ever sent hazardous wastes to the Frances Street or Briggs Avenue sites. OCLI relied on the declaration of Ken Pietrelli, a company vice-president, acknowledging that OCLI had sold empty scrap drums and drums containing scrap metal to West Coast Metals—one of the scrap metal dealers leasing the sites in the 1960's and 1970's—but denied that OCLI had ever sent or disposed of any drums containing chemicals to West Coast Metals. In opposition, plaintiffs sought judicial notice of the 1990 and 1992 Water Board staff memos recounting information provided by the anonymous tipster and by David Kessler. Over OCLI's hearsay objection, the trial court (1) took judicial notice of the existence of the documents, and (2) denied OCLI's motion for summary judgment.

3. OCLI's In Limine Motions

As the trial date approached, OCLI made a number of in limine motions. OCLI moved to exclude as double hearsay all mention of the 1990 and 1992 ...