Coppola v. Smith

• Decision Date: 12 November 2013
• Docket Number: Case No. 1:11–CV–1257 AWI BAM.
• Parties: Viola COPPOLA, et al., Plaintiffs v. Gregory SMITH, et al., Defendants. and Related Counterclaims and Crossclaims.
• Court: U.S. District Court — Eastern District of California

982 F.Supp.2d 1133

Viola COPPOLA, et al., Plaintiffs

v.Gregory SMITH, et al., Defendants.and Related Counterclaims and Crossclaims.

Case No. 1:11–CV–1257 AWI BAM.

United States District Court,

E.D. California.

Nov. 12, 2013.

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

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

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

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

ORDER ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFFS' MOTION TO STRIKE

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. Plaintiffs (collectively “Coppola”) have brought suit against inter alia the California Water Service Company (“Cal Water”) and Martin and Martin Properties (“Martin”). The Court previously dismissed the third amended complaint under Rule 12(b)(6). The active complaint is the Fourth Amended Complaint (“FAC”). Additionally, Martin has filed a counterclaim against Coppola. Now before the Court is Cal Water's motion to dismiss the FAC and Coppola's motion to strike part of Martin's counterclaim. For the reasons that follow, both motions will be granted with leave to amend.

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 110 N. 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 Well CWS 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 119 S. 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.

RULE 12(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 1121. 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;see Bell 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:

First, 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. Second, 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. See Mueller v. Aulker, 700 F.3d 1180, 1191 (9th Cir.2012); Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir.2010).

I. CAL WATER'S MOTION TO DISMISSDefendant's Argument

With respect to CERCLA liability under 42 U.S.C. § 9607, Cal Water makes several arguments in favor of dismissal. First, the FAC fails to allege that a “disposal” occurred at the Well. Prior complaints show that Coppola is not claiming that a disposal occurred in Cal Water's pipes. Instead, Coppola's pumping theory is that the Well's pumping drew water into the Well, which somehow pulled contaminated groundwater that was drifting in the aquifer to locations away from the Well and onto 717 N. Main. That is, the FAC shows that the disposal of PCE occurred away from the Well, not at the Well. Further, there are no allegations that the PCE that had been drawn into the Well was later discharged out of the Well and somehow made its way to 717 N. Main. Second, the water that was drawn into the Well was delivered to Cal Water's distribution system for eventual supply to consumers. The water was never discarded or disposed of into the groundwater or elsewhere. The groundwater that was pumped by the Well was put to a productive use. Third, and finally, the movement of contamination into a utility's well is passive migration, and the Ninth Circuit has recognized that passive migration cannot constitute a “disposal” under CERCLA.

With respect to the claim for declaratory relief under 42 U.S.C. § 9613(g)(2), this claim rises and falls with the § 9607 claim. Because the FAC fails to state a viable § 9607 claim Coppola's § 9613 claim for declaratory relief must also fail.

Plaintiff's Opposition

Coppola argues that it has properly alleged a prima facie CERCLA case, and followed the Court's analysis from the prior motion. First, the FAC specifically alleges that Cal Water is responsible for a disposal at the Well. Specifically, Paragraph 89 alleges that, at the Well, Cal Water knowingly pumped in groundwater at and around 717 N. Main, and Paragraph 90 alleges that the operation of the Well constitutes a “disposal.” The “disposal” at the Well further exacerbated the contamination, and the associated cleanup costs. Second, Coppola argues that the useful product defense does not apply. The useful product defense applies when the material in question is a useful product, is not waste, and is being used as intended. As the Court held in the previous motion, Cal Water does not use PCE as a component of its water, and PCE is not being used as intended. Third, Coppola argues that the movement of water associated in this case is not merely passive, rather it is caused by pumping activities which are the result of human conduct. Because the movement was a result of human conduct, there is...