Mangini v. Aerojet-General Corp.

• Decision Date: 21 February 1991
• Docket Number: AEROJET-GENERAL,No. C004771,C004771
• Citation: 227 Cal.App.3d 1248,278 Cal.Rptr. 395
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 227 Cal.App.3d 1248 227 Cal.App.3d 1248 Catherine Holthouse MANGINI, et al., Plaintiffs and Appellants, v.CORPORATION, et al., Defendants and Respondents.

Page 395

278 Cal.Rptr. 395

Previously published at 227 Cal.App.3d 1248

227 Cal.App.3d 1248

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.

Feb. 21, 1991.

Rehearing Granted March 20, 1991.

Property owners brought action against predecessors' lessees in connection with their alleged contamination of property with hazardous wastes. The Superior Court of Sacramento County, No. 500170, William A. White, J., dismissed, and owners appealed. The Court of Appeal, Sims, J., held that: (1) lease did not contain covenants or equitable servitudes running with land beyond term of lease; (2) owners alleged sufficient facts to make out claim for continuing public nuisance; (3) owners sufficiently alleged special injury that would allow them to pursue claim for public nuisance; (4) owners' claims for negligence, negligence per se, and strict liability were time-barred, but claim for equitable indemnity was not; and (5) owners did not have viable claim for unfair business practices.

Reversed and remanded.

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

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

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

The Mangini family, owners of 2400 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 the Manginis 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 Mangini's 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. Plaintiff Catherine Holthouse Mangini and Mark Vernon Holthouse 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, defendant would return the land to the lessor in as good state and condition as when defendant received it. ³ Despite this provision, defendant failed to remove millions of pounds of waste rocket 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.

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

Based on these alleged facts plaintiffs pleaded 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 contention that defendant failed to remove the hazardous wastes 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 Lease Did Not Contain Covenants or Equitable Servitudes Running With the Land Beyond the Term of the Lease.

Defendant contends plaintiffs have failed to state facts sufficient to constitute a cause of action as to any count because defendant's lease with the Cavitts created a covenant running with the land or equitable servitude and binding plaintiffs, as successors in interest to the Cavitts, to acquiesce in any condition created by defendant's activities. We disagree.

"Certain covenants, contained in grants of estates in real property, are appurtenant to such estates, and pass with them, so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them. Such covenants are said to run with the land." (Civ.Code, § 1460.)

Defendant seeks to rely on certain language taken from paragraphs 11 and 15 of the lease. Paragraph 11 provides in part: "Lessors [the Cavitts] hereby covenant that they will acquiesce in any nuisance or hazard caused by Lessee [defendant] on the premises." Paragraph 15 provides in part: "Each and every covenant and agreement herein contained shall inure to the benefit of and shall be binding upon the executors, administrators, successors and assigns of the parties hereto...." Assuming for the sake of argument these terms constitute a valid covenant binding the Cavitts and any successors and assigns under the lease to acquiesce in any and all activities It is settled that covenants in a lease may run with the land to bind the successors or assigns of lessor or lessee during the term of the lease. ⁴ (See, e.g., Standard Oil Co. v. Slye (1913) 164 Cal. 435, 443, 129 P. 589; Coburn v. Goodall (1887) 72 Cal. 498, 503, 14 P. 190; Salisbury v. Shirley (1884) 66 Cal. 223, 227, 5 P. 104; see also Hudson Oil Co. v. Shortstop (1980) 111 Cal.App.3d 488, 497, 168 Cal.Rptr. 801 [covenant in lease enforced as equitable servitude].)

of defendant on the leased property, they can have no power to bind plaintiffs, who took the property after the lease had expired.

However, it is equally clear that "A covenant may be extinguished by a number of methods, including expiration of the specified period, ..." (4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 486, p. 664; see Diederichsen v. Sutch (1941) 47 Cal.App.2d 646, 118 P.2d 863; Rest., Property, § 554; Note, Covenants and Equitable Servitudes in California (1978) 29 Hastings L.J. 545, 586.) Here "the specified period" for which promises made under the lease were intended to operate can reasonably be understood only as the term of the lease. "The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other." (Civ.Code, § 1641.)

The lease fails to include covenants running with the land because it does not envision that either of the parties will do, or refrain from doing, acts after the expiration of the lease. Rather, the lease defines the permissible uses of the land during the lease term. Thus, paragraph 15 of the lease, making it binding upon the successors, assigns, etc. of the parties, is explicable as language necessary to bind any successors, assigns, etc. during the lease term. (See e.g., Hudson Oil Co. v. Shortstop, supra, 111 Cal.App.3d at p. 496, 168 Cal.Rptr. 801.)

Even the lessee's promise to restore the premises is a promise to be undertaken during the term of the lease. In this respect, the instant lease is different from that at issue in Washburn v. A.F. Gilmore Co. (1931) 116...