McCoy v. Gustafson

• Decision Date: 15 December 2009
• Docket Number: No. H030724.,H030724.
• Court: California Court of Appeals Court of Appeals
• Parties: CECELIA McCOY, as Trustee, etc., Plaintiff and Appellant, v. M. DOUGLAS GUSTAFSON et al., Defendants and Appellants.

180 Cal.App.4th 56

CECELIA McCOY, as Trustee, etc., Plaintiff and Appellant, v. M. DOUGLAS GUSTAFSON et al., Defendants and Appellants.

No. H030724.

Court of Appeals of California, Sixth District.

December 15, 2009.

[180 Cal.App.4th 62]

Kathleen M. Clack for Plaintiff and Appellant.

Musick, Peeler & Garrett, Gary L. Wollberg and Timothy J. Daley for Defendants and Appellants.

OPINION

RUSHING, P. J.

I. INTRODUCTION

In 1986, Margaret McCoy wrote a letter to the owners of the Grove Laundry in Pacific Grove, complaining that "black oil is seeping up between the laundry" and the house owned by Margaret and Edward McCoy on property downhill from the laundry (the downhill property). She asserted that it was the laundry's "spill of black oil" and that they should clean it up.

The Blackwells, then owners of the laundry, made some efforts to clean up the oil contamination on the laundry property. After acquiring the laundry property in 1988, in 1993 M. Douglas Gustafson demolished one of the buildings and had almost 560 tons of soil excavated from the laundry property, as monitored and approved by the Monterey County Health Department (the Health Department).

Because the downhill property has remained contaminated, in 2002 the McCoys filed this civil action against the current and former owners of the laundry property.¹ As the jury was instructed in this case, to release fuel oil into a neighbor's soil without consent is a trespass, and to interfere with the free use and enjoyment of the neighbor's property by contaminating it is a nuisance.

California law classifies nuisances and trespasses as either continuing or permanent. "An action for trespass upon or injury to real property" (Code Civ. Proc., § 338, subd. (b))² must be filed within three years of the discovery that the property has been contaminated by a permanent nuisance (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1096, 1103 [51 Cal.Rptr.2d 272, 912 P.2d 1220] (Mangini II)), while a new action can be filed every three years for the damages caused by a continuing nuisance or trespass. A nuisance is regarded as continuing if "the nuisance can be remedied at a reasonable cost by reasonable means." (Id. at p. 1103.)

Based primarily on the 1986 letter complaining about oil seeping from the laundry, the trial court summarily adjudicated that plaintiff's claims for negligence, permanent nuisance, and permanent trespass were time-barred. The trial court later denied plaintiff's motion to amend the complaint a month before trial.

Plaintiff proceeded to trial on theories of continuing nuisance and trespass. The jury concluded by way of a special verdict form that two defendants, M. Douglas Gustafson and his corporation, the Tamarind Group, Inc., had intentionally, recklessly, or negligently caused oil or other petroleum products to be released onto the downhill property, thereby creating a condition that caused harm and interfered with plaintiff's free use and enjoyment of the downhill property.³

The jury was instructed, among other things, that, to establish a nuisance, plaintiff was required to prove "that the condition can be repaired, or abated, by reasonable means and at a reasonable cost." To establish a trespass, plaintiff was required to prove "that the unauthorized entry can be removed, repaired, or abated, by reasonable means and at a reasonable cost." Given the choices "[y]es," "[n]o," or "[u]nknown" in questions Nos. 5 on the special verdict form (pertaining to nuisance and trespass), the jury determined that it was "unknown" whether the condition of plaintiff's property could "have been repaired or abated by reasonable means and at a reasonable cost." As directed by the verdict form, in light of this special verdict, the jury bypassed the remaining questions about damages and signed the verdict form.

We will conclude for the reasons stated below that this special verdict established the statute of limitations defense, so the trial court should have entered judgment in favor of the Gustafson defendants based on this special verdict, as they contended in a motion for judgment notwithstanding the verdict. Based on the lack of evidence at trial that the contamination of the downhill property is reasonably abatable, the jury could not have found otherwise. We will further conclude that this failure of proof did not result from any erroneous ruling by the trial court in connection with granting summary adjudication, denying plaintiff's motion to amend the complaint, or limiting the expert testimony presented by plaintiff.

This action did not end with this special verdict. The trial court directed the jury to deliberate further, after which it determined by special verdict that the Gustafson defendants acted with malice, fraud, or oppression in creating a nuisance, but not by releasing oil. After a bifurcated trial, by a separate special verdict, the jury awarded punitive damages of $250,000 against M. Douglas Gustafson and $250,000 against the Tamarind Group, Inc.

Plaintiff and the Gustafson defendants both challenged this outcome, with defendants moving for a judgment notwithstanding the verdict and an order vacating the punitive damages award, and plaintiff making a motion for a new trial. The trial court deemed defendants' motion also to be seeking a new trial. The court ruled orally, "I think that the verdict form was unfortunately hopelessly mired in confusion and ambiguity, such that I think a motion for new trial has to be granted, both as to the issues of compensatory damages, punitive damages, the corporate and individual standing of Mr. Gustafson." Both sides have appealed from this ruling, and plaintiff has appealed from the original judgment and related prior rulings.

We will conclude, for reasons stated below, that the trial court erred in granting the motion for new trial and denying the motion for judgment notwithstanding the verdict. Accordingly, we will reverse the order granting a new trial and direct entry of a judgment in defendants' favor.

II. PRETRIAL PLEADINGS AND RULINGS

A. The Pleadings

The complaint, filed April 29, 2002, alleged the following. Plaintiffs Edward and Margaret McCoy owned residential property downhill from the Grove Laundry in Pacific Grove. While defendants Galen and Gary Blackwell owned and operated the laundry, bunker oil was discharged into the ground, and the oil has migrated through the groundwater and soil on and under the downhill property. Defendant M. Douglas Gustafson, individually and as a trustee of the M. Douglas Gustafson Trust, and through the corporate defendants Spindletop, Inc., and the Tamarind Group, purchased the uphill property from the Blackwells, sold it, repossessed it, and attempted to clean up the contaminated soil on the uphill property. Gustafson sold part of the property to defendants Thomas and Claude Finklang, doing business through the corporate defendants CTE Properties, Inc., the Grove Homescapes, and the Grove Innerscapes (the Finklang defendants). The Finklang defendants demolished the laundry and replaced it with a retail and residential building. In July 1999, the McCoys discovered groundwater filled with petroleum during excavation of a trench about 18 inches deep on their property. The McCoys alleged causes of action for negligence, nuisance per se, private and public nuisance, and trespass as a result of the contamination of their soil. They requested damages representing the diminution in their property value, interference with their use of their property, their costs of improving their property and testing for toxic wastes, and punitive damages.

M. Douglas Gustafson, individually and as a former trustee of the M. Douglas Gustafson Trust, and the Tamarind Group, formerly doing business as M. Douglas Gustafson & Co., Inc., and Spindletop, Inc., filed an answer alleging a number of affirmative defenses, including that plaintiff's action was barred by the three-year statute of limitations for damages to real property.

B. The Motions for Summary Adjudication

On October 27, 2005, the Gustafson defendants filed a motion for summary adjudication asserting that the statute of limitations barred plaintiff's claims of permanent nuisance, negligence, and trespass. The motion was heard on January 27, 2006, and taken under submission. The motion was based primarily on an exchange of letters between Margaret McCoy, Marc Blackwell, and the Health Department from April 1986 through September 1987.

On April 22, 1986, Margaret McCoy wrote to Marc Blackwell that Mrs. Walker had complained of oil seeping up between the Grove Laundry and the downhill property at 164 12th Street in Pacific Grove that Walker rented from Margaret and Edward McCoy. Marc Blackwell was the son of Galen Blackwell, one of the owners of the Grove Laundry. By letter dated April 29, 1986, Marc Blackwell accepted full responsibility for the situation and offered to clean up the downhill property. He noted that he had been in contact with the Health Department. On September 3, 1987, the Health Department wrote, asking Blackwell to establish a cleanup schedule in coordination with his consultant, Russell Juncal of WaterWork. One of the elements to be scheduled was installation of monitoring wells.

WaterWork performed some work on the laundry property by January 1988, when the Blackwells sold the property to M. Douglas Gustafson.

Plaintiff filed opposition to the motion. Plaintiff acknowledged that the three-year limitations period of section 338, subdivision (b) applied, but argued that the downhill property suffered no "appreciable and actual harm" until "after confirmation of the soil sample showed high levels of petroleum contamination were present in the soil and groundwater underneath the property." The written opposition made no claim that the state statutes of limitations were preempted by the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CE...