Coppola v. Smith, 1:11–cv–1257 AWI DLB.

• Decision Date: 26 March 2013
• Docket Number: No. 1:11–cv–1257 AWI DLB.,1:11–cv–1257 AWI DLB.
• Citation: 935 F.Supp.2d 993
• Parties: Viola COPPOLA, et al., Plaintiffs, v. Gregory SMITH, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

935 F.Supp.2d 993

Viola COPPOLA, et al., Plaintiffs,
v.
Gregory SMITH, et al., Defendants.

No. 1:11–cv–1257 AWI DLB.

United States District Court,
E.D. California.

March 26, 2013.

[935 F.Supp.2d 1003]

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

Lori J. Gualco, Gualco Law, Sacramento, CA, Steven Ray Williams, Williams, Jordan & Brodersen LLP, Leonard Charles Herr, Dooley, Herr and Peltzer & Richardson, Visalia, CA, Emily L. Murray, 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.

ORDER ON DEFENDANTS' MOTIONS TO DISMISS & MOTION TO JOIN NECESSARY PART
ANTHONY W. ISHII, Senior District Judge.

This is an environmental law case that arises from the chemical contamination of

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property associated with a dry cleaning business. Plaintiffs (collectively “Coppola”) have brought suit against the City of Visalia (“the City”), and the California Water Service Company (“Cal Water”), and owners and former owners of nearby properties, including Martin and Martin Properties (“Martin”). The active complaint is the Third Amended Complaint (“TAC”). The TAC alleges 15 causes of action: (1) the federal Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.) (“CERCLA”); (2) the California Carpenter–Presley–Tanner Hazardous Substance Account Act (California Health and Safety Code § 25300 et seq.) (“HSAA”); (3) negligence; (4) negligence per se; (5) private nuisance; (6) nuisance per se; (7) contribution; (8) indemnification; (9) continuing trespass; (10) Water Code § 13350; (11) waste; (12) public nuisance; (13) public nuisance per se; (14) declaratory relief; and (15) dangerous condition of public property. Before the Court are three motions to dismiss and one motion to join a necessary party, which have been brought by three defendants—the City, Cal Water, and Martin. For the reasons stated below, the motions to dismiss will be granted, but the motion to join will be denied.

BACKGROUND

From the TAC, 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. See Martin Request For Judicial Notice (“Martin RJN”) Ex. C § 2.3. Millers Dry Cleaners is no longer in operation at 110 N. Willis.

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.¹

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. The Well is adjacent to 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.² 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 the City owns and operates the sewer system at and around 717

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W. Main. The operation of the sewer system led to the release of PCE. The sewer main and appurtenances from 717 W. Main have breaks, cracks, leaks, sags, and/or defective joints, which permitted the PCE to escape and spread into the environment. Finally, Coppola contends that Cal Water's operation of the Well led to the release of PCE. Prior to Cal Water abandoning the Well, PCE concentrations were above the Method Detection Limit. Cal Water's operation of the Well caused PCE to move to previously uncontaminated areas beneath the water table, which exacerbated the contamination plume.

Coppola seeks damages from the Defendants, including contribution and indemnification, associated with soil and groundwater contamination.

LEGAL 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. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). 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. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir.2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir.1997). However, the Court is not required “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056–57 (9th Cir.2008); 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.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); 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, 129 S.Ct. at 1949. The Ninth Circuit has explained 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 deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally limited to reviewing only the complaint, but it may take judicial notice of public records outside the pleadings, review materials which are properly submitted as part of the complaint, and review documents that are incorporated by reference in the Complaint if no party questions their authenticity. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005); Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir.2001). If a Rule 12(b)(6) motion is granted, “[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not

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possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc). In other words, leave to amend need not be granted where amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.2002).

I. Martin's Motion To Dismiss1. 1st Cause of Action—CERCLA
Defendant's Argument

Martin argues that Coppola has failed to properly allege a CERCLA § 9607(a) claim for several reasons. First, there are no facts alleged that show a release or a threatened release of any hazardous substance from Martin's property.³ Second, Coppola has not alleged that a release or threatened release caused Coppola to incur response costs that were necessary and consistent with the national contingency plan. That is, there is no nexus between any release from the Martin property and the costs incurred by Coppola. Third, the TAC is little more than a bare recitation of legal elements that do not show what, where, or when hazardous substances were released from the Martin property. Fourth, Coppola is barred from asserting a cause of action under § 9607(a), but instead is limited to contribution under § 9613(f), because the costs incurred by Coppola were compelled by a settlement/administrative order. Finally, because the § 9607(a) claim fails, the dependent § 9613(g)(2) claim also fails.

Plaintiff's Opposition

Coppola argues that a prima facie § 9607(a) case has been properly alleged. The TAC alleges that 110 N. Willis is a facility. The TAC alleges that a release of hazardous substances occurred during the operations of Cheryl and Harley Miller. The TAC alleges that DTSC was investigating the presence of hazardous substances at 717 W. Main and that necessary response costs, including investigative and remediation expenses, were incurred pursuant to DTSC oversight. Martin is the current owner of 110 N. Willis. Finally, because the TAC properly alleges a § 9607(a) claim, a claim for declaratory relief under § 9613(g) is proper.

Coppola also argues that they voluntarily entered into the administrative order with DTSC and without resolution of their liability. Because the order was voluntary and no liability was resolved, § 9613(f) does not apply.

Legal Standardsa. CERCLA § 9613(f)(3)(B)

Section 9613(f)(3)(B) permits a “ ‘person who has resolved its liability to the United...