Gregory Vill. Partners, L.P. v. Chevron U.S.A., Inc.

• Decision Date: 02 August 2011
• Docket Number: No. C 11–1597 PJH.,C 11–1597 PJH.
• Citation: 805 F.Supp.2d 888
• Court: U.S. District Court — Northern District of California
• Parties: GREGORY VILLAGE PARTNERS, L.P., Plaintiff, v. CHEVRON U.S.A., INC., et al., Defendants.

805 F.Supp.2d 888

GREGORY VILLAGE PARTNERS, L.P., Plaintiff,

v.CHEVRON U.S.A., INC., et al., Defendants.

No. C 11–1597 PJH.

United States District Court, N.D. California.

Aug. 2, 2011.

Jeffrey McCormick Curtiss, Jordan S. Stanzler, Stanzler Law Group, Palo Alto, CA, Ruben A. Castellon, Castellon & Funderburk LLP, Alamo, CA, for Plaintiff.

Robert C. Goodman, Rogers Joseph O'Donnell, San Francisco, CA, Jack C. Provine, Tonya Draeger Hubinger, Shapiro Buchman Provine Brothers Smith, LLP, Walnut Creek, CA, Kenton Leigh Alm, Sabrina Sarah Wolfson, Meyers Nave Riback Silver & Wilson, Oakland, CA, for Defendants.

ORDER RE MOTIONS TO DISMISS, MOTIONS FOR A MORE DEFINITE STATEMENT, AND MOTIONS TO STRIKE

PHYLLIS J. HAMILTON, District Judge.

Defendants' motions to dismiss certain claims asserted in the complaint, motions for a more definite statement, and motions to strike, came on for hearing before this court on July 27, 2011. Plaintiff Gregory Village Partners, L.P. (“Gregory Village”) appeared by its counsel Jordan Stanzler; defendant Chevron U.S.A., Inc. (“Chevron”) appeared by its counsel D. Kevin Shipp and Robert Goodman; defendant M B Enterprises appeared by its counsel Jack Provine; and defendant Central Contra Costa Sanitary District (“CCCSD” or “the District”) appeared by its counsel Kenton Alm and Sabrina Wolfson.

Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the motions in part and DENIES them in part, as follows and for the reasons stated at the hearing.

BACKGROUND

Gregory Village owns real property located at 1601–1609 Contra Costa Boulevard in Pleasant Hill, California, known as the Gregory Village Shopping Center (“the Gregory Village property”). Gregory Village purchased the property approximately 10 years ago.

P & K Cleaners operated a dry cleaning plant on what is now the Gregory Village property, from the mid–1960s through approximately 1991. As required by the Regional Water Quality Control Board, Gregory Village has been investigating soil and groundwater contamination that allegedly resulted from P & K Cleaners' use and disposal of solvents.

Gregory Village asserts that chlorinated solvents, including PCE (tetrachlorethene) and TCE (trichloroethylene) and their breakdown products, as well as petroleum hydrocarbons and related materials and their breakdown products, have been detected in groundwater and soil vapor on or near the Gregory Village property.

The Gregory Village property is located downhill from real property located at 1705–1709 Contra Costa Boulevard (“the Chevron property”) which is currently owned by M B Enterprises. The Chevron property was originally two parcels (“the Northern parcel” and “the Southern parcel”).

From approximately 1950 until 1986, Chevron (through Standard Oil) leased the Northern parcel from the owner. There was a service station on the parcel, and in 1971, Chevron removed the existing service station and constructed a new service station with an auto repair facility. Standard Oil/Chevron sub-leased the Northern Parcel to a third party, which operated the service station.

A dry cleaner was allegedly in operation on the Southern Parcel from at least 1981 until 1986. It is not clear from the complaint who the owner of the Southern Parcel was. According to Gregory Village, Chevron states that all dry cleaning equipment was removed from the Southern Parcel by December 1, 1986.

In December 1986, Chevron purchased both the Northern parcel and the Southern parcel. At that point, or shortly thereafter, Chevron combined the two parcels into a single parcel, which it sold to M B Enterprises in March 2003.

There is currently a Chevron service station located on the Chevron property. The service station is operated by M B Enterprises. Gregory Village asserts that chlorinated solvents and hydrocarbons and related products have been detected in groundwater and soil vapor on or near the Chevron property.

Gregory Village also alleges that pollution from the former dry cleaner (chlorinated solvents) has been found in the groundwater on the Chevron property by Chevron's consultants, and that Chevron was aware of this pollution in 1986 when it purchased the two parcels, and that as of 1988, it was aware of chlorinated solvents in the soil vapor in the Chevron property.

Gregory Village asserts that Chevron began groundwater remediation for petroleum-related compounds in 1991, and that the remediation system was shut down in 1996. Nevertheless, according to Gregory Village, chlorinated solvents continued to be detected both on and off the Chevron property.

In December 2009, Gregory Village's consultant conducted an investigation of the groundwater and found high concentrations of chlorinated solvents, and also found petroleum hydrocarbons. On April 1, 2010, representatives from Gregory Village met with representatives from Chevron. At that time Gregory Village allegedly provided Chevron with information demonstrating the extent of the pollution.

The Chevron property connects with a sewer line that runs northward and downstream past the Gregory Village property, and into the residential neighborhood that lies to the north of the Gregory Village property (“the Neighborhood”). This sewer line was allegedly installed, and is owned and/or operated by, CCCSD. Gregory Village asserts that chlorinated solvents have been detected in groundwater and soil vapor in the Neighborhood, located north and west of the Gregory Village property. Gregory Village alleges that based on available data, the above-described sewer line is a source of these various off-site detections of pollution.

Gregory Village alleges that between 2005 and 2008, CCCSD performed a closed circuit television inspection of the sewer line between the Chevron property and the Neighborhood. This inspection showed that the sewer line had sags, root penetration, and at least one separated joint—all of which (according to Gregory Village) are areas in which leaks will continue to occur. Gregory Village also asserts that a key portion of the sewer line (near the Neighborhood) was never inspected. Gregory Village claims that CCCSD knew that dry cleaners and service stations were using the sewers to discharge hazardous substances, and failed to use due care to ensure that hazardous substances were not released into the environment.

Gregory Village also alleges that as the owner and operator of a service station on the Chevron property, M B Enterprises has contributed to the contamination of the Gregory Village property and the Neighborhood by discharging petroleum products into the subsurface of the Chevron property through the normal course of its operation of a service station. Gregory Village claims that M B Enterprises has failed to make any effort to stop the migration of the PCE and TCE from the Chevron property into the Neighborhood.

Gregory Village filed this action on April 1, 2011, alleging 11 causes of action—(1) a claim under CERCLA § 107(a)(1–4)(B), 42 U.S.C. § 9607(a), against all defendants; (2) a claim under the Resources Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B), against all defendants; (3) a claim for declaratory relief under federal law, against all defendants; (4) a claim seeking response costs under the Carpenter–Presley–Tanner Hazardous Substance Account Act (“HSAA”), California Health & Safety Code § 25300, et seq., against M B Enterprises and Chevron; (5) a claim of comparable equitable indemnity under state law, against all defendants; (6) a claim of declaratory relief under state law, against all defendants; (7) a claim for attorneys' fees under California Code of Civil Procedure § 1021.5, against all defendants; and (8)-(11) common law claims of public nuisance; trespass; waste; and negligence, against all defendants.

All three defendants have filed motions to dismiss. Chevron argues that the CERCLA/HSAA, RCRA, nuisance, trespass, waste, and negligence causes of action should be dismissed for failure to state a claim, or, in the alternative, that the court should order Gregory Village to provide a more definite statement. Chevron also contends that the cause of action for attorney's fees should be stricken because Civil Procedure Code § 1021.5 does not create an independent cause of action; and that the prayer for attorney's fees and costs should also be stricken because fees and costs are not recoverable in actions brought under CERCLA and HSAA, and because the common law causes of action do not provide for recovery of attorney's fees.

M B Enterprises filed a joinder in Chevron's motion, and a motion seeking dismissal of all eleven causes of action asserted against M B Enterprises and Chevron (even though Chevron seeks dismissal of only eight of the eleven causes of action), or, in the alternative, a more definite statement, plus an order striking the prayer for attorney's fees and costs.

CCCSD seeks a more definite statement as to the CERCLA cause of action, and argues that the court lacks subject matter jurisdiction over the RCRA cause of action because Gregory Village did not comply with the 90–day notice requirement. CCCSD also contends that the RCRA cause of action fails to state a claim.

In addition, CCCSD argues that the trespass and waste claims are barred because CCCSD is immune under California Government Code § 815; that the nuisance, trespass, waste, and equitable indemnity causes of action fail because they are not pled with particularity as required under the California Tort Claims Act; that the equitable indemnity claim is premature because Gregory Village has not been served with a complaint giving rise to such a claim; that the nuisance and waste claims should be dismissed because they are inadequately pled; and that the nuisance claim also fails because it is untimely and seeks damages beyond the one-year period allowed under the ...