Hari Hara, LLC v. Team Enters.
| Decision Date | 29 September 2021 |
| Docket Number | B306217 |
| Court | California Court of Appeals Court of Appeals |
| Parties | HARI HARA, LLC, Plaintiff and Appellant, v. TEAM ENTERPRISES, LLC, Defendant and Respondent. |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No PC058126 Melvin D. Sandvig, Judge. Reversed and remanded.
Paladin Law Group, Bret A. Stone, Kirk M. Tracy and Brian R Paget for Plaintiff and Appellant Hari Hara.
Horvitz & Levy, Steven S. Fleischman and Scott P. Dixler; Greben & Associates, Greben Monroe, Jan A. Greben and Christine M. Monroe for Defendant and Respondent Team Enterprises.
Plaintiff Hari Hara, LLC owns commercial property on which successive dry cleaning businesses have operated for over 50 years. In 2018, Hari Hara sued one of the prior dry cleaner tenants, Team Enterprises, Inc. (Team), for environmental contamination of the property. Team moved for summary judgment based on a settlement agreement it had executed with the previous landlord, Mark Weinstein, which Team claimed had released Team from liability for contaminating the property. The trial court granted summary judgment, concluding that Hari Hara was bound by the agreement as Weinstein's successor.
Hari Hara appeals, arguing that Team did not meet its burden on summary judgment because its copy of the settlement agreement was missing the operative exhibit that purported to release Team from liability. In response, Team argues that summary judgment was proper on the alternative ground that Hari Hara's claims were time-barred. We agree with Hari Hara that the summary judgment evidence proffered by Team did not suffice to make a prima facie showing that the incomplete settlement agreement released Team from liability to Hari Hara for environmental contamination of the Property. We also conclude that because there is a question of whether the statute of limitations was properly pleaded and a related issue of forfeiture, and because the trial court did not rule on the statute of limitations ground, that issue should be considered by the trial court in the first instance. We accordingly reverse and remand for further proceedings, which may include a renewed summary judgment motion addressing both issues we have identified.
In June 2018, Hari Hara filed the operative first amended complaint alleging that it was the owner of property on which Team had operated a dry cleaning business from 1967 through 1995.[1] Hari Hara alleged Team had released toxic substances into the soil on site. As a result, Hari Hara had incurred costs for investigating the contamination and remediating the “air, soil, soil vapor, and groundwater.” The complaint alleged causes of action for violation of the Hazardous Substance Account Act (HSAA), contribution, abatement of a public nuisance, abatement of a private nuisance, negligence, continuing trespass, and declaratory relief. Team filed an answer denying all material allegations in the complaint and asserting affirmative defenses.
In April 2019, Team moved for summary judgment on the ground that Hari Hara was bound by the 2001 settlement agreement (Settlement Agreement) between Weinstein and Team. Team argued the Settlement Agreement released it from all claims arising from the contamination of the Property. In the alternative, Team argued that all of the causes of action were time-barred except for the HSAA claim. In support of Team's motion for summary judgment, it submitted evidence of Weinstein's prior cleanup of the Property as well as Weinstein's lawsuit against Team which led to the execution of the Settlement Agreement.
According to the evidence submitted by Team, Weinstein originally discovered perchloroethylene (PCE) contamination on the Property in 1998. The Los Angeles County Fire Department and Regional Water Quality Control Board (Control Board) took charge of investigating the contamination in the soil and groundwater below the dry cleaner. In 1999, Weinstein's environmental consultant requested that the Control Board “grant site closure” because soil remediation would only be required if the commercial space were to be remodeled. The Control Board granted the request on the condition that Weinstein record a deed restriction, and noted the “removal of contaminated soil (soil remediation) will be required during any future construction, demolition, or use change” affecting the dry cleaner unit of the Property.
Weinstein would not accept the deed restriction. His consultants thereafter excavated parts of the property, removing soil containing certain levels of PCE. However, they left in place bedrock which was “difficult to remove with conventional excavation equipment.” The Control Board granted site closure, concluding that the residual PCE in the bedrock was “relatively immobile, and d[id] not pose a threat to groundwater quality.” The Control Board did not address the prior deed restriction requirement in its letter granting site closure, and the record does not suggest that any deed restriction was recorded.
In 2000, Weinstein filed a lawsuit in federal court against Team and others to recover costs of the cleanup and diminution in the value of the property. The parties settled in 2001. The Settlement Agreement provided in Paragraph III.A.:
(Italics added.)
In support of its motion for summary judgment in the present action, Team submitted an incomplete copy of the Settlement Agreement. Team provided neither “Exhibit 1” nor evidence that the document had been filed with the court in the Weinstein federal litigation. Instead, Team submitted a copy of a 2002 Order Regarding Dismissal signed by the district court. That order recited that the case had earlier been dismissed without prejudice with the right to vacate under certain conditions. The order continued that the parties had:
Despite the order's statement that the settlement process was not “complete, ” Team cited the order in its Separate Statement as evidence that the Nothing in the record supports Team's claim, although nothing refutes it either.
In its opposition to summary judgment, Hari Hara argued it was not bound by the Settlement Agreement because it “was not a party to the agreement, did not take assignment of it, [] never received notice of it prior to purchase of the subject property, ” and was not in privity with Weinstein.[2] Hari Hara also asserted that Team had waived its statute of limitations defense “by failing to properly plead it in [its] answer to the first amended complaint [as Team] did not specify the appropriate subdivisions it is attempting to now rely upon.”
The trial court granted summary judgment, finding the Settlement Agreement was binding on Hari Hara as Weinstein's successor. The court concluded the Settlement Agreement released Team from “all matters related to any environmental contamination, ” citing to Paragraph III.A. of the agreement, set forth above. In quoting Paragraph III.A., the trial court excerpted only two words-“forever discharge[s]”-concluding that “The agreement states... that it is binding on Weinstein, his agents, affiliates, predecessors, successors and assigns and ‘forever discharge[es]' [sic]” the parties. The court did not reference the balance of that sentence which set forth the parties' agreement to sign Exhibit 1 “dismissing the Complaint... and releasing and forever discharging the parties.” The trial court did not address the parties' arguments about the statute of limitations.
Hari Hara timely appealed.
“ ‘ “ ‘A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. (Code of...
To continue reading
Request your trial