Greenfield MHP Assocs., L.P. v. Ametek, Inc.

Decision Date18 November 2015
Docket NumberCASE NO. 3:15-cv-1525-GPC-BGS
Citation145 F.Supp.3d 1000
CourtU.S. District Court — Southern District of California
Parties Greenfield MHP Associates, L.P., A limited partnership; Starlight MHP, LLC, a California limited liability company; Starlight Exchange, LLC, a Delaware limited liability company; Davis Group Exchange, LLC, a Delaware limited liability company; Villa Cajon MHC, L.P., a Utah limited partnership, Plaintiffs, v. Ametek, Inc., a Delaware corporation; Senior Operations, LLC, a limited liability company; and Does 1 through 100, inclusive, Defendants.

Carla Burke, Celeste A. Evangelisti, Scott Summy, Baron & Budd PC, Dallas, TX, John P. Fiske, Gomez Trial Attorneys, San Diego, CA, for Plaintiffs.

Edward C. Walton, Sean Michael Sullivan, Procopio, Cory, Hargreaves & Savitch LLP, Kimberly Arouh, Robert J. Parks, Buchanan Ingersoll & Rooney LLP, San Diego, CA, David James Porter, Mackenzie A. Baird, Buchanan Ingersoll & Rooney PC, Pittsburgh, PA, for Defendants.

ORDER:

GRANTING IN PART AND DENYING IN PART DEFENDANT AMETEK'S MOTION TO DISMISS

GRANTING IN PART AND DENYING IN PART DEFENDANT SENIOR OPERATION'S MOTION TO DISMISS

[ECF No. 23]

HON. GONZALO P. CURIEL

, United States District Judge

Before the Court are Defendant Ametek, Inc. (Ametek) and Defendant Senior Operations, LLC's (“Senior” or “Senior Operations”) separate Motions to Dismiss. Def. Ametek's Mot. Dismiss (“Am. Mot.”), ECF No. 24; Def. Senior Operations' Mot. Dismiss (“Sen. Mot.”), ECF No. 23. The motions have been fully briefed.1 See Pls.'

Opp'n Def. Ametek's Mot. Dismiss (“Am. Opp.”), ECF No. 28; Reply Pls.' Opp'n Def. Ametek's Mot. Dismiss (“Am. Reply”), ECF No. 32; Pls.' Opp'n Def. Senior Operations' Mot. Dismiss (“Sen. Opp.”), ECF No. 29; Reply Pls.' Opp'n Def. Senior Operations' Mot. Dismiss (“Sen. Reply”), ECF No. 33.

Upon consideration of the moving papers and the applicable law, and for the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Ametek's Motion to Dismiss and GRANTS IN PART and DENIES IN PART Senior Operation's Motion to Dismiss.

FACTUAL BACKGROUND

This case arises out of the dumping of toxic waste by Defendants and their predecessors into a temporary waste storage tank (or “sump”) on their property on Greenfield Drive in El Cajon, California (“Ametek property”). Am. Compl. (“Compl.”) 4, ECF No. 17. Aircraft engine parts were manufactured in the Greenfield facility from 1953 or 1954, when the facility was founded by California Aircraft Products (“CAP”), until 1988. Id. at 4. In 1964, CAP changed its name to Straza Industries. Id. at 4. Defendant Ametek purchased Straza Industries in 1968. Id. Defendant Senior Operations subsequently purchased the Ametek property in or around 1998. Am. Mot. Exs. 2–3.

Plaintiffs allege that from 1963 to 1985, owners of the Ametek property used a sump to temporarily store toxic waste which consisted of a 12 feet in diameter and 10 feet deep hole in the ground. Compl. 5. The hole was lined with redwood planks on the sides and had a poured concrete base. Id. Plaintiffs allege that between 1963 and 1985, Defendants or their predecessors dumped up to 7,000 gallons of waste per month into the sump, including (a) spent acid and alkaline solutions; (b) industrial chlorinated solvents; (c) 1, 1, 1,- tricholorethane (“TCA”); (d) trichloroethylene (“TCE”); (e) tetrachloroethylene (“PCE”); (f) oils; (g) paint thinner; and (h) process sludge. Id. at 5. Perhaps unsurprisingly given the nature of the sump, Plaintiffs allege that the waste stored therein deteriorated and breached the sump, resulting in toxic waste seeping and percolating into the surrounding soil, fractures in the granite rock, and into the groundwater over the subsequent years. Id. at 6.

Plaintiffs allege that Defendants' waste discharge caused a massive waste plume, including the largest TCE plume in the State of California. Id. at 7. Plaintiffs allege that the plume “extend[s] 1.3 miles westward and down-gradient” and includes large amounts of TCE, 1,1-dichloroetyhlene (“DCE”), dioxane, and TCA, as well as smaller amounts of PCE, 1, 1-dichloroethane (“DCA”), benzene, toluene, ethylbenzene, and xylene. Id.

State authorities have been aware of the waste discharge from the Ametek property since at least the 1980's. Id. at 9. In 2008, the California Regional Water Quality Control Board for San Diego County (Water Board), which oversees the identification and monitoring of groundwater contamination, remediation, and ensuring compliance with California Water Code, see, e.g. , 23 C.C.R. § 640

; 23 C.C.R. § 2907 ; Cal. Water C. § 13300, et seq., filed an Administrative Liability Complaint which charged Defendants with failure to install a sufficient monitoring well network to delineate the extent of the waste plume and failure to take “any efforts to cleanup and abate the effects of their discharge” despite “20 years of investigation efforts” and Defendants being “repeatedly advised” that their monitoring and remediation efforts were deficient. Id. at 9. The Complaint stated that Defendants “fail [ure] to act appropriately” had resulted in “a condition of pollution and contamination in the ground water beneath the El Cajon Valley with continuing impacts to the existing beneficial uses of the Santee/El Monte Basin.” Id. The California Department of Toxic Substances Control (“DTSC”), which has oversight of remediation of toxic contamination, has also been monitoring the waste plume. Id. at 10.

Greenfield, Starlight, and Villa Cajon are mobile home parks due west, west-northwest, and west-northwest respectively of the Ametek facility. Id. at 23, 25. Plaintiffs allege that the mobile home parks are down-gradient of the Ametek facility and the waste plume flows directly underneath all three mobile home parks. Id. at 24.

Magnolia Elementary School (“Magnolia”) is immediately adjacent to the Ametek property and directly in-between the mobile home parks and the Ametek facility. Id. at 25. Plaintiffs allege that the waste plumes are also directly beneath Magnolia. Id. On May 7, 2015, DTSC held a Community Update Meeting at Magnolia where the agency presented results from ongoing monitoring of toxic vapor intrusion into the school. Id. at 13. The presentation included information as to how vapors from toxic plumes can enter cracks in the ground of a building and affect the indoor air quality. Id. The presentation explained that PCE is a carcinogen and TCE is a “carcinogen, reproductive and developmental toxin.” Id. at 14. The presentation also showed that the cancer

risk from toxic vapor intrusion inside Magnolia was increasing, from 4.5 parts per million in August 2014 to 5.6 parts per million in March 2015, with a temporary spike in December 2014 to 42 parts per million. Id. at 15. Finally, the DTSC presentation included a slide showing that the cancer risk level was veering from the “Acceptable” (no further action required) to “Unacceptable” (further action required) range during this time, although the cancer risk level had not yet crossed the threshold into the “Unacceptable” zone. Id. In the intermediate zone where the cancer risk levels measured from August 2014 to March 2015 were located, the slide described the situation as one where “the site specific conditions drive the decision.” Id. On June 1, 2015, the Board of Governors of the Cajon Valley Union School District voted unanimously to close Magnolia for the 2015-2016 school year because of the risk of toxic vapor intrusion. Id. at 1.

Plaintiffs allege that the same chemicals that have been found under the Magnolia site have also been found in the sub-surface soil and groundwater under Greenfield, Starlight, and Villa Cajon. See id. at 26–30. Plaintiffs also allege that the various chemicals found in the waste plume and by vapor monitoring have been found by federal agencies, including the Agency for Toxic Substances and Disease Registry (“ATSDR”) and the Environmental Protection Agency (“EPA”), to have toxic health effects. Id. at 20. In particular, Plaintiffs allege that TCE and PCE are listed as having developmental, neurological, and carcinogenic effects on humans; vinyl chloride

, which can be formed when other substances such as TCA, TCE, and PCE break down, has cardiovascular, developmental, hepatic, immunological, and carcinogenic effects; TCA has cardiovascular and neurological effects; DCE can cause liver, kidney, and developmental effects; and dioxane can have hepatic, ocular, renal, and carcinogenic effects. Id. at 20–22.

PROCEDURAL BACKGROUND

Plaintiffs are five limited partnership and limited liability companies that own Greenfield, Starlight, and Villa Cajon. Id. at 1. On July 10, 2015, Plaintiffs filed their initial complaint. ECF No. 1. On August 20, 2015, Plaintiffs filed an amended complaint. ECF No. 17.

Plaintiffs bring four causes of action for (1) negligence; (2) gross negligence; (3) public nuisance; (4) private nuisance; (5) trespass; (6) trespass (extrahazardous activity); and (7) strict liability (ultrahazardous activity). Compl. 31–36. Plaintiffs seek punitive as well as compensatory damages as to each cause of action. Id. at 31–36. Defendants filed separate motions to dismiss on September 8, 2015. ECF Nos. 23, 24. Plaintiffs responded on October 2, 2015. ECF Nos. 28, 29. Defendants replied on October 16, 2015. ECF Nos. 32, 33.

LEGAL STANDARD

A Rule 12(b)(6) dismissal may be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’ Johnson v. Riverside Healthcare System, LP , 534 F.3d 1116, 1121–22 (9th Cir.2008)

(quoting Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir.1990) ).

“To survive a motion to dismiss, 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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

(quoting Bell Atl. Corp. v. Twombly , 550 U.S....

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    ...an ultrahazardous activity. See supra , California Edison Co. , 300 F. Supp. 2d at 991 ; see also Greenfield MHP Assocs., L.P. v. Ametek, Inc. , 145 F. Supp. 3d 1000, 1010 (S.D. Cal. 2015) (dismissing strict liability claims because "[p]laintiffs cite no cases supporting the proposition tha......

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