Perlmutter v. Lehigh Hanson, Inc.
| Decision Date | 03 September 2021 |
| Docket Number | 21-cv-02571-HSG |
| Parties | MICHAEL PERLMUTTER, et al., Plaintiffs, v. LEHIGH HANSON, INC., Defendant. |
| Court | U.S. District Court — Northern District of California |
ORDER DENYING MOTION TO DISMISS RE: DKT. NO 28
Plaintiffs Michael Perlmutter and Rhiannon, on behalf of themselves and a putative class of their residential neighbors, brought this case against Lehigh Hanson, Inc. (“Defendant”). Pending before the Court is Defendant's motion to dismiss the Plaintiffs' Complaint, for which briefing is complete. See Dkt. Nos. 28 (“Mot.”), 35 (“Opp.”), and 36 (“Reply”). Having carefully considered the parties' arguments, the Court DENIES Defendant's motion.[1]
Defendant owns and operates the Berkley Asphalt industrial facility located at 699 Virginia Street in Berkeley, California (the “Facility”), where it produces hot mix asphalt and other construction materials. Dkt. No. 1 (“Compl.”) ¶¶ 2, 13. Plaintiffs are all owners, occupants, or renters of residential property who reside within one mile of the Facility. Id. ¶ 43. Plaintiffs allege that their residential property has been and continues to be “physically invaded by noxious odors” emitted from the Facility. Id. ¶ 16. Plaintiffs concede that “hot mix batch plants like Defendant's facility are not inherently a nuisance ” but claim Defendant has failed to implement “reasonably available” odor mitigation elimination, and control systems to prevent the Facility's emissions from invading the surrounding community. Id. ¶ ¶ 15, 24-26. As a result Plaintiffs claim, they have suffered injuries and damages, including exposure to pollutants and “nauseating” odors, interference with the use and enjoyment of their property, and decreased property value. Id. ¶ ¶ 32-36. Plaintiffs also allege that Defendant has received multiple notices of violation from the Bay Area Air Quality Management District due to these emissions.[2] Id. ¶ 23.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Rule 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate only where the complaint “lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In reviewing the plausibility of a complaint, courts “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).
III. DISCUSSION
Defendant's motion seeks to dismiss Plaintiffs' Complaint in its entirety. Defendant first argues that Plaintiffs' Public Nuisance claim should be dismissed under Rule 12(b)(1) because, as private parties, Plaintiffs have not properly pled standing to pursue a public nuisance claim. Mot. at 2. Defendant next argues that Plaintiffs fail to state claims for Negligence and Gross Negligence under Rule 12(b)(6) because Defendant does not owe Plaintiffs a duty of care as a matter of law. Id. Defendant then argues that Plaintiffs' Nuisance and Negligence claims are redundant and violate California's primary rights doctrine. Id. at 18-20. Defendant also argues that Plaintiffs have not pled facts sufficient to authorize punitive damages or injunctive relief. Id. at 3. Finally, Defendant claims that, if any portion of the complaint survives, the remaining claims should be dismissed (or stayed) pursuant to the doctrine of primary jurisdiction. Id. As the Court explains below, none of these arguments are persuasive.
To establish a cause of action for negligence under California law, the plaintiff must show that the “defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.” Brown v. USA Taekwondo, 11 Cal. 5th 204, 213 (2021) (citing Nally v. Grace Community Church, 47 Cal.3d 278, 292 (1988)); see also Rosencrans v. Dover Images, Ltd., 192 Cal.App.4th 1072, 1082 (2011) (). Whether a duty exists is a question of law to be resolved by the court. Bily v. Arthur Young & Co., 3 Cal.4th 370 (1992). The “general rule” is that “people owe a duty of care to avoid causing harm to others and that they are thus liable for injuries their negligence inflicts.” So. Cal. Gas Leak Cases, 7 Cal. 5th 391, 398 (2019)); see also Cal. Civ. Code § 1714(a). But as the California Supreme Court recently reaffirmed in Southern California Gas Leak Cases, there is generally no duty in tort to guard against “purely economic loss, ” which is a loss that “does not arise from actionable physical, emotional, or reputational injury to persons or physical injury to property.” So. Cal. Gas Leak Cases, 7 Cal. 5th at 398.
Citing the California Supreme Court's ruling in Southern California Gas Leak Cases, Defendant argues that it owes no duty here because Plaintiffs' two categories of damages- diminution of property value and the interference with the right of use and enjoyment of property -are not actionable physical injury to property. Mot. at 16-18. The Court disagrees.
By alleging that their property “has been and continues to be physically invaded by noxious odors” and particles, Plaintiffs have alleged property damage and an actionable injury to their property interests, rather than purely economic loss. Compl. ¶¶ 16-17; see also Id. ¶ 33 (). And “[w]here alleged negligence has caused personal injury or property damage and economic loss, the existence of a duty of care is the rule, not the exception.” So. Cal. Gas Leak Cases, 18 Cal.App. 5th 581, 587-88 (2017), aff'd, 7 Cal. 5th 391 (2019); see also City of Pomona v. SQM N. Am. Corp., No. CV1100167RGKVBKX, 2011 WL 13318239, at *2 (C.D. Cal. Dec. 15, 2011) ( ), aff'd, 750 F.3d 1036 (9th Cir. 2014). Because Plaintiffs have properly alleged that Defendant's negligence caused property damage, the economic loss rule does not bar Plaintiffs' Negligence and Gross Negligence claims. See City of Pomona, 2011 WL 13318239, at *2. Accordingly, Defendant's motion to dismiss as to Plaintiffs' Negligence and Gross Negligence claims is DENIED.
Although California law generally requires governmental entities to bring public nuisance claims, a “private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” Cal. Civ. Code §3493; see also Ogala v. Chevron Corp., No. 14-CV-173-SC, 2014 WL 6682048, at *3 (N.D. Cal. Nov. 25, 2014). However, “when the nuisance is a private as well as a public one, there is no requirement the plaintiff suffer damage different in kind from that suffered by the general public.” Birke v. Oakwood Worldwide, 169 Cal.App.4th 1540, 1551 (2009) (citing Venuto v. Owens-Corning Fiberglas Corp., 22 Cal.App.3d 116 (1971)). Instead, a plaintiff claiming that a nuisance is both public and private must only show that they suffered damages “specifically referable to the use and enjoyment of his or her land.” Brooks v. Darling Ingredients, Inc., No. 1:14-CV-01128-MCE, 2014 WL 5500958, at *3 (E.D. Cal. Oct. 30, 2014) (citing Koll-Irvine Ctr. Prop. Owners Assn. v. Cty. of Orange, 24 Cal.App.4th 1036, 1041 (1994)).
Here, the “special injury” requirement does not apply because Plaintiffs brought claims for both private and public nuisance based on the same activity-specifically, the physical invasion of their property by “noxious odors produced and controlled by Defendant's Facility.” Compl. ¶ 72. Plaintiffs have also alleged that, as result of the Defendant's emissions, they cannot use their yards and have lost property value. Id. Taken together, these allegations are sufficient to show interference with the use and enjoyment of Plaintiffs' land and are thus sufficient for pleading claims of private and public nuisance based on the same activity. Accordingly, Plaintiffs have standing to pursue a public nuisance claim. Defendant's motion to dismiss as to Plaintiffs' Public Nuisance claim is therefore DENIED.
In California, a nuisance is “[a]nything 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.” Cal. Civ. Code § 3479. To properly plead a nuisance claim, a plaintiff must allege that the defendant's act caused a ...
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