Coppola v. Smith

• Decision Date: 13 May 2014
• Docket Number: Case No. 1:11–CV–1257 AWI BAM.
• Citation: Coppola v. Smith, 19 F. Supp. 3d 960 (E.D. Cal. 2014)
• Court: U.S. District Court — Eastern District of California
• Parties: Viola COPPOLA, et al., Plaintiffs v. Gregory SMITH, et al., Defendants. and Related Claims.

19 F.Supp.3d 960

Viola COPPOLA, et al., Plaintiffs

v.Gregory SMITH, et al., Defendants.and Related Claims.

Case No. 1:11–CV–1257 AWI BAM.

United States District Court, E.D. California.

Signed May 13, 2014.

Filed May 14, 2014.

Brett Andrew Boon, Jan A. Greben, Greben and Associates, Santa Barbara, CA, for Plaintiffs.

Lori J. Gualco, Gualco Law, Sacramento, CA, for Cross Claimant/Counter Claimant/Cross Defendant.

Steven Ray Williams, Williams, Brodersen & Pritchett, LLP, Visalia, CA, for Cross Claimant/Counter Claimant.

Leonard Charles Herr, Dooley, Herr and Peltzer & Richardson, Visalia, CA, Emily L. Murray, Tim C. Hsu, Allen, Matkins, Leck, Gamble, Mallory & Natsis, LLP, Noah P. Perch—Ahern, Glaser Weil, et al.LLP, David F. Wood, Wood Smith Henning & Berman LLP, Los Angeles, CA, Patrick S. Schoenburg, Wood, Smith, Henning & Berman LLP, Fresno, CA, for Defendants.

Brett Andrew Boon, Jan A. Greben, Greben and Associates, Santa Barbara, CA, for Cross Defendant/Counter Defendant.

Steven Ray Williams, Williams, Brodersen & Pritchett LLP, Visalia, CA, for Defendants/Cross Defendant.

ORDER ON DEFENDANT CAL WATER'S MOTION TO DISMISS

ANTHONY W. ISHII, Senior District Judge.

This is an environmental law case that arises from the chemical contamination of property surrounding a dry cleaning business in Visalia, California.Plaintiffs(collectively “Coppola”) have brought suit against inter alia the California Water Service Company(“Cal Water”).The Court previously dismissed the Third and Fourth Amended Complaints under Rule 12(b)(6)following motions filed by inter alia Cal Water.The active complaint is the Fifth Amended Complaint (“FAC”).Now before the Court is Cal Water's motion to dismiss the FAC.For the reasons that follow, the motion will be granted in part and denied in part.

GENERAL BACKGROUND

From the FAC, Coppola owns the real property and the dry cleaning business, One Hour Martinizing, located at 717 West Main Street (“717 W. Main”), Visalia, California.

Since 1995, Martin has owned the real property located at 110 North Willis Street (“110 N. Willis”), Visalia, California.110 N. Willis currently houses office space and is located within 0.08 miles of 717 W. Main.Millers Dry Cleaners previously operated at 110N. Willis and was owned by Defendants Harley and Cheryl Miller.Based on judicially noticed documents, Millers Dry Cleaners began operation in 1959.Millers Dry Cleaners is no longer in operation.

At 119 South Willis Street (“119 S. Willis”), Visalia, California is another dry cleaning facility, Paragon Cleaners.119 S. Willis is located 0.1 miles from 717 W. Main.

Cal Water owns and operates public drinking water systems throughout California, including the City.Cal Water owned and operated WellCWS 02–03(“the Well”) until 2005, at which time it was abandoned by Cal Water.In 2000, however, Cal Water stopped operating the Well because of increasing levels of PCE.The Well is located 20 feet east of 717 W. Main.

On October 28, 2009, the California Department of Toxic Substances Control(“DTSC”) informed Coppola that it was investigating the occurrence of tetrachloroethylene, also known as perchloroethylene (“PCE”), in the soil and groundwater at 717 W. Main. PCE is a hazardous substance.Apparently, it was later determined that the soil and groundwater both at and near 717 W. Main was contaminated with PCE.

Coppola alleges that the PCE was released due to the dry cleaning activities at 119S. Willis and 110 N. Willis.Coppola also alleges that Cal Water's operation of the Well led to the release of PCE.Coppola seeks damages from the Defendants, including contribution and indemnification, associated with soil and groundwater contamination.

RULE12(b)(6) FRAMEWORK

Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's “failure to state a claim upon which relief can be granted.”Fed.R.Civ.P. 12(b)(6).A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory.Conservation Force v. Salazar,646 F.3d 1240, 1242(9th Cir.2011);Johnson v. Riverside Healthcare Sys.,534 F.3d 1116, 1121(9th Cir.2008).In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party.Faulkner v. ADT Sec. Servs.,706 F.3d 1017, 1019(9th Cir.2013);Johnson,534 F.3d at 1122.However, complaints that offer no more than “labels and conclusions” or “a formulaic recitation of the elements of action will not do.”Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009);Dichter–Mad Family Partners, LLP v. United States,709 F.3d 749, 761(9th Cir.2013).The Court is not required “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”Wilson v. Hewlett–Packard Co.,668 F.3d 1136, 1145 n. 4(9th Cir.2012);Sprewell v. Golden State Warriors,266 F.3d 979, 988(9th Cir.2001).To avoid a Rule 12(b)(6) dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”Iqbal,556 U.S. at 678, 129 S.Ct. 1937;seeBell Atl. Corp. v. Twombly,550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007).“A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged.”Iqbal,556 U.S. at 678, 129 S.Ct. 1937;Dichter–Mad,709 F.3d at 761.“Plausibility” means “more than a sheer possibility,” but less than a probability, and facts that are “merely consistent” with liability fall short of “plausibility.”Iqbal,556 U.S. at 678, 129 S.Ct. 1937;Li v. Kerry,710 F.3d 995, 999(9th Cir.2013).Complaints that offer no more than “labels and conclusions” or “a formulaic recitation of the elements of action will not do.”Iqbal,556 U.S. at 678, 129 S.Ct. 1937;Dichter–Mad,709 F.3d at 761.The Ninth Circuit has distilled the following principles from Iqbal and Twombly: (1) to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively; (2) the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.Starr v. Baca,652 F.3d 1202, 1216(9th Cir.2011).In assessing a motion to dismiss, courts may consider documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice.Dichter–Mad,709 F.3d at 761.If a motion to dismiss is granted, “[the]district court should grant leave to amend even if no request to amend the pleading was made....”Henry A. v. Willden,678 F.3d 991, 1005(9th Cir.2012).However, leave to amend need not be granted if amendment would be futile or if the plaintiff has failed to cure deficiencies despite repeated opportunities.SeeMueller v. Auker,700 F.3d 1180, 1191(9th Cir.2012);Telesaurus VPC, LLC v. Power,623 F.3d 998, 1003(9th Cir.2010).

CAL WATER'S MOTION TO DISMISS

Defendant's Argument

Cal Water argues that CERCLA claims based on a “transporter” theory should be dismissed.Cal Water argues that, although Coppola's factual allegations almost exclusively focus on a “transporter” theory, in the prior iterations of the Complaint Coppola locked themselves into a “past owner” theory under § 9607(a)(2).Coppola did not defend the “transporter” theory in opposing the first motion to dismiss, and did not make “transporter” allegations in the Third Amended Complaint.However, even if Coppola has not waived its “transporter” theory, the FAC fails to allege the necessary elements.There is no indication that PCE or PCE-contaminated water was “accepted” by Cal Water.Rather, the only manifest intent by Cal Water was to pull groundwater out of the environment.Although the FAC alleges that a disposal occurred while the Well was cycled off, the implication is that contaminants seeped through the Well accidently while the Well was not operating.Such conduct does not represent a volitional and intended acceptance.Finally, the FAC fails to allege that Cal Water actively participated in the selection of where to transport the PCE or that Cal Water had substantial input in that decision.In fact, there are no allegations that Cal Water was involved in any selection process or disposal decision of any kind.At best, the allegations suggest that Cal Water was no more than a mere conduit of the waste, which is insufficient for transporter liability.

Cal Water also argues that CERCLA claims based on a “past owner” theory should be dismissed.Coppola previously admitted that they“are not making a cost recovery claim based on the water in Cal Water's pipes ....“Thus, to the extent that Coppola is now trying to make a claim based on movement of water in the Well, they are foreclosed from doing so based on their prior representations.Further, Coppola has failed to correct the defects identified by the Court in the last dismissal order.There must be allegations of a “disposal” at a “facility.”However, the FAC contains no factual allegations that the show a disposal occurred at the Well.Further, there are no allegations that suggest any type of discarding occurred at the Well.Instead, Coppola is reasserting the general “pumping theory” that was rejected by the Court in the last dismissal order.There are allegations that contaminated water moved into previously uncontaminated areas, but there is no allegation that the disposal was “at the Well” or that Cal Water owned or operated these previously...