Orange Cnty. Water Dist. v. Sabic Innovative Plastics United States, LLC

Decision Date04 August 2017
Docket NumberD070553
Citation222 Cal.Rptr.3d 83,14 Cal.App.5th 343
Parties ORANGE COUNTY WATER DISTRICT, Plaintiff and Appellant, v. SABIC INNOVATIVE PLASTICS US, LLC, et al., Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals

14 Cal.App.5th 343
222 Cal.Rptr.3d 83

ORANGE COUNTY WATER DISTRICT, Plaintiff and Appellant,
v.
SABIC INNOVATIVE PLASTICS US, LLC, et al., Defendants and Respondents.

D070553

Court of Appeal, Fourth District, Division 1, California.

Filed August 4, 2017
As Modified on Denial of Rehearing August 25, 2017


Connor Fletcher & Hedenkamp, Edmond M. Connor, Douglas Aaron Hedenkamp, Irvine; Miller & Axline, Duane C. Miller, Michael Dana Axline and Justin Morgan Massey, Sacramento, for Plaintiff and Appellant.

Squire Patton Boggs, Adam R. Fox, Helene Huang Yang and Marisol Corral Mork, Los Angeles, for Defendants and Respondents Sabic Innovative Plastics US, LLC, and General Electric Company.

Hennelly & Grossfeld and Paul T. Martin, Marina Del Rey, for Defendant and Respondent Emerson Electric Company.

Beveridge & Diamond and Gary J. Smith, San Francisco, for Defendant and Respondent UNISYS Corporation.

Newmeyer & Dillion and John E. Van Vlear, Newport Beach, for Defendant and Respondent GE Aviation Systems, LLC.

WFBM, Sean C. McGah and Sage R. Knauft, Orange, for Defendant and Respondent Marotta Controls, Inc.

Morrison & Foerster and Peter Hsaio, Los Angeles; Call & Jensen and Joshua G. Simon, Newport Beach, for Defendant and Respondent Ricoh Electronics.

Demetriou Del Guercio Springer & Francis, Brian D. Langa and Michael Anthony Francis, Los Angeles, for Defendant and Respondent Universal Circuits, Inc.

Hinson & Gravelle and Douglas Arthur Gravelle, Valencia, for Defendant and Respondent ICI Americas, Inc.

Bassi, Edlin, Huie & Blum and Paul David Rasmussen, Los Angeles, for Defendant and Respondent Bell Industries, Inc.

Kutak Rock and Jad Terrell Davis, Irvine, for Defendant and Respondent Sanmina Corporation.

Dykema Gossett and John Anthony Ferroli, Los Angeles, for Defendant and Respondent Borgwarner Morse TEC Inc.

McGrath North Mullin & Kratz and John A. Andreasen, Omaha; McGuireWoods and Leslie Mark Werlin, Los Angeles, for Defendant and Respondent Beatrice Companies, Inc.

Ring Bender, J.W. Ring, Philip M. Bender and Christine L. Hein, Portland, for Defendant and Respondent Gallade Chemical, Inc.

Ring Bender and Norman A. Dupont, Costa Mesa, for Defendants and Respondents DRSS–1 LLC, and Brenntag Pacific, Inc.

Lewis, Brisbois, Bisgaard & Smith and James Angelo Geocaris, Costa Mesa, for Defendant and Respondent Accurate Circuit Engineering, Inc.

Morris Polich & Purdy and Christopher Geoffrey Foster, Los Angeles, for Defendant and Respondent Dyer Business Associates, LP.

Musick Peeler & Garrett and Steven J. Elie, Costa Mesa, for Defendant and Respondent Steelcase, Inc.

Morgan Lewis & Bockius, David Louis Schrader and

222 Cal.Rptr.3d 96

Yardena R. Zwang–Weissman, Los Angeles, for Defendant and Respondent ITT Corporation.

Wood Smith Henning & Berman, David Ferguson Wood and Jade Tran, Newport Beach, for Defendant and Respondent Embee, Inc.

Morrison & Foerster and Peter Hsaio, Los Angeles, for Defendant and Respondent BASF Corporation.

HALLER, J.

14 Cal.App.5th 354

The Orange County Water District (District) was created by the California Legislature to protect and manage groundwater supplies within its territory, which covers most of Orange County, California. The District and other regulatory agencies have long been aware of localized groundwater contamination caused by hazardous substance releases at various sites in the

14 Cal.App.5th 355

so-called "South Basin" area of Orange County. The hazardous substances in question include various volatile organic compounds (VOC's) and percholorate. A number of these sites have been the subject of government investigations and remediation efforts over the past three decades.

In 1998, two VOC's, tetrachloroethylene (also known as perchloroethylene or PCE) and trichloroethylene (TCE), were detected in groundwater drawn from a drinking water well in the South Basin area operated by the Irvine Ranch Water District (IRWD). Three years later, perchlorate was also detected in the well. The District believed these detections reflected more extensive groundwater contamination than it had previously been aware of. The District undertook efforts to identify the source of groundwater contamination and engaged consultants to recommend further avenues of investigation. The District's goal was to determine the extent of groundwater contamination in the South Basin area and develop a plan to remediate it. Although the District's investigation has continued, it had not yet developed a final treatment plan or remediated any contamination by the time of the underlying litigation.

During its investigation, the District filed suit against various current and former owners and operators of certain sites in the South Basin area that it believed were in some way responsible for groundwater contamination, including the following defendants at issue in this appeal: Accurate Circuit Engineering, Inc. (Accurate Circuit); Beatrice Companies, Inc. (Beatrice); Bell Industries, Inc. (Bell); BorgWarner Morse TEC LLC (BorgWarner); Brenntag Pacific, Inc. (Brenntag); Dyer Business Associates, LP (Dyer); DRSS–1, LLC (DRSS); Embee, Inc. (Embee); Emerson Electric Co. (Emerson); Gallade Chemical, Inc. (Gallade); GE Aviation Systems LLC (GE Aviation); General Electric Company (GE); ICI Americas, Inc. (ICI); ITT Corporation (ITT); Marotta Controls, Inc. (Marotta); Ricoh Electronics, Inc. (Ricoh); SABIC Innovative Plastics US, LLC (SABIC); Sanmina Corporation (Sanmina); Soco West, Inc. (Soco West); Steelcase Inc. (Steelcase); UNISYS Corporation (UNISYS); and Universal Circuits, Inc. (UCI). The District sued a number of other parties that are not the subject of this appeal, either because they were dismissed at some point in the litigation or the District has not appealed the judgments in their favor.1

The District asserted statutory claims for damages under the Carpenter–Presley–Tanner

222 Cal.Rptr.3d 97

Hazardous Substance Account Act (HSAA; Health & Saf. Code, § 25300 et seq. ) and the Orange County Water District Act (OCWD

14 Cal.App.5th 356

Act; Stats. 1933, ch. 924, p. 2400; West's Ann. Wat. Append. (2010 ed.) ch. 40) and for declaratory relief ( Code Civ. Proc., § 1060 ). The District also asserted common law claims for negligence, nuisance, and trespass. Following numerous motions for summary judgment and summary adjudication, and a limited bench trial on the District's ability to bring suit under the HSAA, the trial court entered judgments in favor of the defendants on all of the District's claims.

The District appeals. It challenges the judgments on numerous grounds. In this opinion, we confirm that the HSAA allows the District to bring suit under the circumstances here ( Health & Saf. Code, § 25363, subd. (d) ) and that the District may recover certain remediation-related investigatory costs under the OCWD Act, section 8, subdivision (c). We will also address the HSAA's nonretroactivity provision ( Health & Saf. Code, § 25366, subd. (a) ) and conclude that its requirements were not satisfied here. We further conclude that the theory of continuous accrual applies to the District's negligence cause of action, such that no defendant except GE Aviation has shown the statute of limitations bars that claim.

As to the District's causes of action for trespass and nuisance, we conclude the District has raised a triable issue of fact regarding its potential groundwater rights in the South Basin. In doing so, we address the State of California's potential interests in groundwater (as allegedly delegated to the District), the District's regulatory powers over groundwater, and its rights based on its groundwater replenishment or recharge activities. We conclude the District's potential rights in groundwater are insufficient, on the current record in this case, to maintain a trespass cause of action. However, we determine that triable issues of fact preclude summary adjudication of the District's nuisance claim for all defendants except UCI. Finally, we conclude that most of defendants' site-specific arguments (primarily based on causation) do not entitle them to summary adjudication of any causes of action. The judgments will therefore be affirmed in part and reversed in part, as discussed in detail below.

The litigation underlying this appeal is separate from the litigation involving the District's remediation proposals for the "North Basin" area of Orange County, which we considered in two recently-filed opinions. ( Orange County Water Dist. v. MAG Aerospace Industries, Inc. (2017) 12 Cal.App.5th 229, 218 Cal.Rptr.3d 614 ( MAG ); Orange County Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 219 Cal.Rptr.3d 474 ( Alcoa ).) The North Basin, as its name suggests, is geographically separate from the South Basin, and it is contaminated by different plumes of hazardous substances. As we will explain, however, several legal issues decided in the North Basin appeals ( MAG and Alcoa ) are relevant to our discussion of the

...

To continue reading

Request your trial
89 cases
  • Dix v. Live Nation Entertainment, Inc.
    • United States
    • California Court of Appeals
    • October 26, 2020
    ...attorney's declaration was "sufficient" to authenticate the excerpts]; see generally Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 368, 222 Cal.Rptr.3d 83 ["[c]ourts are split regarding the proper standard of review for the trial court's evidentia......
  • Golden Gate Way, LLC v. Enercon Servs., Inc.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 18, 2021
    ...applies to GGW's claim under the HSAA, the California equivalent of CERCLA. See Orange Cty. Water Dist. v. Sabic Innovative Plastics US, LLC , 14 Cal. App. 5th 343, 371, 222 Cal. Rptr. 3d 83, 109 (2017). "A claim under the HSAA has the same elements as a claim under CERCLA" and "is interpre......
  • Orange Cnty. Water Dist. v. Arnold Eng'g Co., D070763
    • United States
    • California Court of Appeals
    • December 19, 2018
    ...infer that Arnold released 1,1,1-TCA during its operations at the site. (See Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 381-382, 222 Cal.Rptr.3d 83 ; United Alloys, Inc. v. Baker (C.D.Cal. 2011) 797 F.Supp.2d 974, 1000.)However, while the absen......
  • L. A. Unified Sch. Dist. v. S&W Atlas Iron & Metal Co.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • November 16, 2020
    ...on one case that does not necessarily support their position. MTD at 13-14 (citing Orange Cty. Water Dist. v. Sabic Innovative Plastics US, LLC , 14 Cal. App. 5th 343, 413, 222 Cal.Rptr.3d 83 (2017)) ("Contamination of subsurface soil has been held to interfere with a landowner's possessory......
  • Request a trial to view additional results
1 books & journal articles
  • Real property torts
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • March 31, 2022
    ...trespass is an unauthorized entry onto the land of another. Orange Cnty. Water Dist. v. Sabic Innovative Plastics United States, LLC , 14 Cal.App.5th 343 (Cal. Ct. App. 2017). The intent required as a basis for liability as a trespasser is simply an intent to be at the place on the land whe......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT