Mangini v. Aerojet-General Corp.

• Citation: 230 Cal.App.3d 1125,281 Cal.Rptr. 827
• Decision Date: 30 May 1991
• Docket Number: AEROJET-GENERAL,No. C004771,C004771
• Court: California Court of Appeals
• Parties: , 21 Envtl. L. Rep. 21,429 Catherine Holthouse MANGINI, et al., Plaintiffs and Appellants, v.CORPORATION, et al., Defendants and Respondents.

Page 827

281 Cal.Rptr. 827

230 Cal.App.3d 1125, 21 Envtl. L. Rep. 21,429

Catherine Holthouse MANGINI, et al., Plaintiffs and Appellants, v. AEROJET-GENERAL CORPORATION, et al., Defendants and Respondents.

No. C004771.

Court of Appeal, Third District, California.

May 30, 1991.

Rehearing Denied June 19, 1991.

Review Denied Aug. 29, 1991.

McCutchen, Doyle, Brown & Enersen, Christopher Berka, Edward L. Strohbehn, Jr., and Jennifer S. Rosenberg, San Jose, for plaintiffs and appellants.

Lasky, Haas, Cohler & Munter, Moses Lasky, and Janet Morgan, San Francisco, for defendants and respondents.

OPINION ON REHEARING

SIMS, Associate Justice.

In this case, we consider a variety of issues arising out of claims by owners of real property against parties who leased the property from prior owners and who allegedly contaminated the property with hazardous waste during the leasehold. ¹

Plaintiffs Catherine Holthouse Mangini and Mark Vernon Holthouse, owners of 2,400 acres of land in Sacramento County, filed suit against Aerojet-General Corporation and its wholly-owned subsidiary Cordova Chemical Company (hereafter collectively defendant), lessees of the property before plaintiffs acquired it, for allegedly contaminating the property with hazardous waste. Defendant's demurrer to the multi-count complaint was sustained without leave to amend. Because we conclude some of plaintiffs' counts should survive demurrer, we shall reverse the judgment of dismissal.

"In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

The complaint, filed January 14, 1998, alleges the following material facts:

Defendant leased the property in question from its former owners, the Cavitts, from 1960 to 1970. Plaintiffs acquired the property pursuant to an exchange of other real property from the executor and administrator of the Cavitts' estate, codefendant James H. Cavitt, in 1975. ²

Defendant's lease (attached to the complaint as an exhibit) provided, "The term of this lease is for a period of ten (10) years, commencing [in 1960] and ending [in 1970]...." The lease also stated, among other things, "Upon termination of this lease, Lessee shall surrender the premises in as good state and condition as when received by Lessee, reasonable use and wear thereof consistent with the business engaged in by Lessee ... excepted." ³ Despite this provision, defendant failed to remove millions of pounds of waste rocket fuel materials and other hazardous substances which it burned, buried, or otherwise disposed of on the property during the term of its lease, creating hazardous conditions which remain on the property.

Plaintiffs have been compelled by the Sacramento County Air Pollution Control District to undertake testing of the property and may be required under state and federal law to abate the hazardous conditions created by defendant.

Plaintiffs did not learn of the hazardous conditions until "recently."

Based on these alleged facts plaintiffs pled nine "causes of action" against defendant:

Creation of a public nuisance (first count);

Creation of a private nuisance (second count);

Negligence (third count);

Negligence per se, based on the contention that defendant's activities violated Health and Safety Code section 25601 (requiring the safe disposal of radioactive waste), Water Code sections 13304, 13264, and 13265 (requiring the cleanup and abatement of waste discharges into the waters of the state, and prohibiting the discharge of any waste that could affect the quality of the waters of the state, including groundwaters), and Order No. 62-21 of the Regional Water Quality Control Board (requiring defendant to dispose of all waste discharges originating on its leased properties so as to avoid creating harmful concentrations of waste in usable groundwaters) (fourth count);

Trespass, based on the allegation that defendant wrongfully deposited harmful waste on the property and failed to remove the waste after plaintiffs acquired the property (fifth count);

Strict liability for ultrahazardous activities (sixth count);

Violation of Business and Professions Code section 17200 (prohibiting unfair or unlawful business practices) (ninth count);

Equitable indemnity for testing and clean-up costs incurred by plaintiffs at the direction of governmental entities (tenth count); and

Declaratory relief with respect to the parties' obligations for testing and clean-up costs (eleventh count).

Defendant demurred to all the "causes of action" on the grounds they failed to state facts sufficient to constitute a cause of action and were barred by the statute of limitations. The trial court sustained the demurrer without leave to amend on those grounds. This appeal followed.

DISCUSSION

I The Complaint States a Cause of Action for Damages for Creation of a Nuisance

A. Plaintiffs may sue in nuisance for direct injury to their property.

Defendant contends the complaint fails to state a cause of action for nuisance.

Defendant argues: "The critical fact of this case is that the claim of nuisance is being made by a present owner of property for alleged injury to that property resulting from acts of a defendant committed on that very property. This takes it entirely outside the area of nuisance.... In other words, conduct committed on a piece of land cannot be attacked as a nuisance to that land or the owner of it. Nuisances are committed by 'neighbors' to the land claimed to have been damaged. Apart from special statutory definitions of specific situations, to be assailable as a 'nuisance' the acts causing the claimed injury must be committed by someone outside the land. Otherwise, actionability of the conduct must be examined under the law of trespass." (Original emphasis.)

In support of this argument, defendant cites general treatises. Thus, for example, Prosser and Keeton remark as follows: "The distinction which is now accepted is that trespass is an invasion of the plaintiff's interest in the exclusive possession of his land, while nuisance is an interference with his use and enjoyment of it. The difference is that between walking across his lawn and establishing a bawdy house next door; between felling a treeacross his boundary line and keeping him awake at night with the noise of a rolling mill.... [p] As the term 'private nuisance' is used in this edition, the tort is committed only if, and in the absence of an intrusion on land amounting to an intentional entry and a trespass, ..." (Prosser and Keeton on the Law of Torts (5th ed. 1984) p. 622.)

Similarly, Wood on Nuisances (3d ed. 1893) states, "They [nuisances] are always injuries that result as a consequence of an act done outside of the property injured, and are the indirect and remote effects of an act, rather than a direct and immediate consequence. It is a species of invasion of another's property by agencies operating entirely outside of the property itself, ..." (P. 33) ⁴

Defendant also relies upon Philadelphia Elec. Co. v. Hercules, Inc. (3d Cir.1985) 762 F.2d 303, cert. den. 474 U.S. 980, 106 S.Ct. 384, 88 L.Ed.2d 337, where the federal court applied Pennsylvania law to conclude that a successor owner of property could not sue a prior owner for nuisance because, inter alia, the historical role of private nuisance law was limited to a resolution of conflicts between neighboring contemporaneous land uses. ⁵ (Pp. 313-314.)

We cannot accept defendant's argument because, as we shall explain, the authorities on which it is premised do not correctly reflect California law. In particular, defendant fails to recognize that California nuisance law is a creature of statute. The California nuisance statutes have been construed, according to their broad terms, to allow an owner of property to sue for damages caused by a nuisance created on the owner's property. Under California law, it is not necessary that a nuisance have its origin in neighboring property.

The following provisions of the Civil Code are pertinent here (all further statutory references are to the Civil Code unless noted otherwise):

Section 3479: "Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance."

Section 3480: "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal."

Section 3481: "Every nuisance not included in the definition of the last section is private."

Section 3493: "A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise."

Code of Civil Procedure section 731 (hereafter ...