Karen Crane-mcnab LLC v. County Of Merced
| Decision Date | 18 November 2010 |
| Docket Number | CASE NO. CV F 08-1218 LJO SMS |
| Court | U.S. District Court — Eastern District of California |
| Parties | KAREN CRANE-McNAB, LLC, et al., Plaintiffs, v. COUNTY OF MERCED, Defendant. |
Motions in Limine
Filing Deadline: November 24, 2010
Motions in Limine
Response Deadline: December 14, 2010
Hearing: At time of trial due to reassignment to U.S. District Judge William B. Shubb
This Court conducted a November 15, 2010 pretrial conference. Plaintiffs Karen Crane-McNab, LLC, Bert Crane Orchards, L.P., Mary Crane Couchman Trust, and Mary Crane Couchman Family Partnership, L.P. (collectively "Plaintiffs") appeared by counsel Thomas Campagne. Defendant County of Merced ("County" or "Defendant")) appeared by counsel Roger Matzkind. Pursuant to F.R.Civ.P. 16(e), the Court issues this final pretrial order.
The parties agree that this Court has original jurisdiction over the parties' disputes pursuant to 28 U.S.C. § 1331 over Plaintiffs' claims arising under the federal constitution, and pendant and supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiffs' remaining claims.
The parties agree that venue is proper in this Court pursuant to 28 U.S.C. § 1391 based on the fact that all parties reside in this judicial district, as that term is used in § 1391, and a substantial part of the events or omissions giving rise to the claims occurred within this judicial district.
Based on the parties' stipulation at the pretrial conference, this is a court trial.
The parties estimate trial will be seven days.
Due to numerous trial conflicts on the calendar of United States District Judge Lawrence J. O'Neill, trial and all further matters are reassigned to United States District Judge William B. Shubb. Trial will be January 24, 2010 at 8:30 a.m. in Department 6 (WBS) of this Court before United States District Judge William B. Shubb.
Plaintiffs initiated this action on June 26, 2008, in the State of California, County of Merced Superior Court. The County removed the action to this District Court based on this Court's original jurisdiction (28 U.S.C. § 1331) over Plaintiffs' claims arising under the federal constitution, and pendant and supplemental jurisdiction (28 U.S.C. § 1367) over Plaintiffs' remaining claims. Plaintiffs are proceeding on their Third Amended Complaint ("TAC"), as amended by this Court's Order on Defendant's Partial Motion to Dismiss the TAC (Doc. 53), and this Court's Order on Defendant's Summary Judgment Motion (Doc. 153). In response to the County's summary judgment motion, and in light of information revealed in discovery, Plaintiffs voluntarily dismissed their Fourth Cause of Action for "Fraud and Deceit by Concealment and Suppression of Fact," and Ninth Cause of Action for "Violation of Due Process Clause of the California Constitution, Art. 1, sec. 7." This Court's Order on the summary judgment motion accordingly dismissed those two claims. Furthermore, the Court granted the summary judgment for the County on Plaintiff's Eighth Cause of Action for "Strict Liability." Thus, Plaintiffs are now proceeding on the following seven causes of action:
1. Inverse Condemnation under U.S. Constitution, Fifth Amendment and California Constitution, Art. 1, sec. 19;
2. Trespass;
3. Nuisance;
4. Negligence;
5. Negligence-Failure to Warn;
6. Violation of Due Process Clause of the Fourteenth Amendment, U.S. Constitution and 42 U.S.C. § 1983; and,
7. Declaratory Relief.
On April 3, 2009, the County filed its Answer to Plaintiffs' TAC, denying the majority of the allegations contained therein, and setting forth sixteen Affirmative Defenses styled as:
1. Failure to state a sufficient cause of action;
2. County's acts or omissions were the result of exercise of discretion vested in it, or its agents and employees;
3. The acts complained of were the acts or omissions of others, not the County;
4. County acted win accordance with the California and federal constitutions, and its agents and employees acted within the scope of their employment;
5. County acted in good faith and with a reasonable belief that is actions were lawful, and did not directly or indirectly breach a duty owed to Plaintiffs;
6. County is immune pursuant to Government Code §§ 815, 815.2, 815.6, 818, 820.2, 820.4, 820.6, 820.9, 821.6, 830.6, 835, 844.6, and 845.6;
7. Facts alleged in the TAC do not involve any custom, practice, procedure or regulation of County which caused a violation of a constitutional right, pursuant to Monell v. New York Dept. of Social Services (1978) 436 U.S. 658; 8. Plaintiffs' claims barred by the statute of limitations;
9. Plaintiffs' Failure to mitigate damages;
10. Plaintiffs' Failure to comply with Government Torts Act, Gov. Code § 900 et seq.;
11. First, Seventh, and Ninth Causes of Action do not support any constitutional tort;
12. Seventh Cause of Action is barred as occurring more than two years prior to the date of filing this action;
13. Claims are barred to the extent they rely on Merced County Resolutions 2007-57 and 2008-112, pursuant to Case Document 28;
14. "Discretionary act immunity" regarding standards "determined to apply and contain landfill operations regarding solid waste, recycling and odor control and containment";
15. Individual defendants are barred from pursuing any cause of action based on failure to file claim pursuant to the Government Tort Claims Act with respect to the Second, Third, Fourth, Fifth, Sixth, Eighth and Ninth Causes of Action; and
16. "Qualified immunity" in connection with the Seventh Cause of Action for violation of 42 U.S.C. § 1983.
The Plaintiffs own agricultural property located within one-half mile of the County's Highway 59 Landfill. The Landfill consists of approximately 609 acres and is comprised of four (4) unlined waste containment unites of known as Units 1 through 4, one lined area known as Unit 5, a leachate retention pond, and three storm water retention ponds. The facility is approximately six (6) miles north of the City of Merced and receives over 550 tons of solid waste per day. Plaintiffs' property borders the Landfill (separated only by Highway 59).
The properties owned by Plaintiffs in the area relevant to this action are more particularly described as follows:
Highway 59 Landfill Area:
Edendale and Canal Creek Waterway Areas:
Plaintiffs do not own the lots collectively or jointly. Rather, each lot is owned wholly by one Plaintiff. The parties agree to stipulate prior to trial as to the various ownerships among the Plaintiff Entities of these above lots, and to jointly refer to them on a map for the Court's convenience and to ease matters at trial.
Plaintiff alleges that the County operates the Highway 59 Landfill, and asserts claims based on the County's negligent operation of, and efforts to expand, the Landfill. Plaintiffs allege that through operation of the Landfill, the County has discharged pollutants into the soil that have migrated onto and under Plaintiffs' adjacent property, causing damage to the property and rendering it economically worthless and unsalable. Plaintiffs allege that expert testing conducted by Plaintiffs in 2008 and 2010 has demonstrated that toxic and hazardous substances have migrated from Defendant's Landfill through soil gas onto and under Plaintiffs' property. Plaintiffs content that this polluted soil gas has rendered the affected property unsalable, with $0 market value.
Plaintiffs also contend that the wind carries debris, garbage, and rubbish from the Landfill onto Plaintiffs' property, causing a continuous source of odor and windblown refuse. Plaintiffs allege that polluted surface waters drain from the Landfill onto Plaintiffs' property.
The Edendale and Canal Creeks run through Plaintiffs' properties. Plaintiffs claim that through negligent creek maintenance, the County has caused damage to Plaintiffs' adjacent properties, including the accumulation of piles of deadfall, garbage and debris on Plaintiffs' property.
Pursuant to the County's motion for summary judgment, the Court has granted the County summary adjudication as to several legal and factual issues. Plaintiffs' claims, as set forth in the TAC, will be limited as follows:
1. Plaintiffs cannot recover from any alleged damage in the Edendale and Canal Creek area caused by floods;
2. Plaintiffs cannot recover for any alleged current groundwater contamination in Highway 59 Landfill area; as there is no current groundwater contamination;
3. Plaintiffs cannot recover...
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