The U.S. v. 718 West Wilson Ave.

• Decision Date: 11 April 2011
• Docket Number: Case No. 2:09–cv–06487–JHN–VBKx.
• Citation: 778 F.Supp.2d 1067
• Parties: The UNITED STATES of America, Plaintiff,v.718 WEST WILSON AVENUE, GLENDALE, CALIFORNIA, 91203, LOT 17 OF TRACT NO. 4531, in the county of Los Angeles, California, as per map recored at Book 52, page 18 of Parcel Maps, Office of the County Recorder, and Hovsep Boghossian, Defendants.
• Court: U.S. District Court — Central District of California

778 F.Supp.2d 1067

The UNITED STATES of America, Plaintiff,

v.718 WEST WILSON AVENUE, GLENDALE, CALIFORNIA, 91203, LOT 17 OF TRACT NO. 4531, in the county of Los Angeles, California, as per map recored at Book 52, page 18 of Parcel Maps, Office of the County Recorder, and Hovsep Boghossian, Defendants.

Case No. 2:09–cv–06487–JHN–VBKx.

United States District Court, C.D. California.

April 11, 2011.

Davis H. Forsythe, William A. Weinischke, United States Department of Justice, Washington, DC, for Plaintiff.Jilbert Tahmazian, Jilbert Tahmazian Law Offices, Glendale, CA, for Defendants.

ORDER GRANTING THE UNITED STATES' SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT [91]

JACQUELINE H. NGUYEN, District Judge.

Before the Court is Plaintiff United States of America's (“United States”) Motion for Partial Summary Adjudication of two narrow issues: (1) the amount it may recover under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and (2) the deficiency of Defendant Hovsep Boghossian's (“Boghossian”) response to CERCLA section 104(e) Information Request. (Docket No. 91.) The Court has considered the Motion, Opposition, and Reply briefs, and oral arguments at the hearing on March 28, 2010. For the reasons discussed below, the motion is GRANTED.

I. FACTUAL BACKGROUND

The underlying in rem action stems from the United States' removal of hazardous substances from a property. The following facts are not in dispute. ( See Order re United States' Mot. for Partial Summ. J. at 2–3, dated 11/30/10 (hereinafter, “11/30/10 Order”); Docket No. 70.) The defendants in the underlying Complaint filed by the United States are (1) the subject property (“Property”), 718 West Wilson Avenue, Glendale, California, 91203, and (2) Boghossian, the Property's current owner. (Docket No. 1.) The Property is located within the San Fernando Valley Area 2 Superfund Site. In the past, the Drilube Company operated on the Property, using numerous chemicals in an aerospace-related operation. Soil on the Property and groundwater beneath the Property are now contaminated with chemicals.

The U.S. Environmental Protection Agency (“EPA”) began conducting response activities at the Property in March 2007, and in April 2010 EPA completed a removal action involving contaminated soil. EPA also will likely conduct future removal or treatment actions on the Property. EPA's response costs as of May 31, 2010, are largely unreimbursed.

In 2004, Remy Mazmanian purchased the property. During the time Remy Mazmanian owned the Property, EPA obtained a lien on the Property pursuant to CERCLA section 107( l ), 42 U.S.C. § 9607( l ), recording notice of the lien in the Los Angeles County Recorder's Office on March 7, 2008. Despite the existence of the EPA lien, Boghossian purchased the Property on June 25, 2008. (11/30/10 Order at 7.)

II. PROCEDURAL HISTORY

On September 3, 2009, the United States commenced the underlying action to seek reimbursement for the costs the EPA incurred in connection with the cleanup. (Docket No. 1.) On January 28, 2010, the Court granted a motion to intervene brought by United States Bank, National Association (“U.S. Bank”), allowing U.S. Bank to intervene as Plaintiff–in–Intervention against Defendants–in–Intervention Boghossian ( also known as Hovsep Derboghossian), Remy Mazmanian, Nations Title Company of California, Regency Estate Properties, Inc., and Transunion Title Insurance Company. (Docket No. 12, 14.)

Thereafter, the Court granted the United States' Motion to Trifurcate, trifurcating the case into separate phases for (1) the determination of liability, (2) the determination of costs to be paid by liable parties, and (3) the determination of remaining issues brought by U.S. Bank. (Docket No. 52.)

On November 30, 2010, the Court granted in part and denied in part the United States' Motion for Partial Summary Judgment. (Docket No. 70.) The Court held the Property liable in rem pursuant to CERCLA section 107( l ), 42 U.S.C. § 9607( l ), for response costs not inconsistent with the National Contingency Plan (“NCP”).¹ (11/30/10 Order at 5.) Further, the Court found “Boghossian liable as an ‘owner and operator’ of the Property” pursuant to CERCLA 107(a), 42 U.S.C. § 9607(a), for response costs not inconsistent with the NCP, both costs already incurred and future costs. ( Id. at 7–8.)

The United States is now before the Court on its second motion for partial summary judgment. (Docket No. 91.) This time, the United States seeks summary adjudication of the amount it is entitled to recover relating to costs it incurred in connection with the Property. In particular, the United States seeks to recover response costs of at least $1,392,734.14 as of September 30, 2010.² (Mot. at 1.) Furthermore, it also seeks summary adjudication as to the tardiness and insufficiency of Boghossian's response to the EPA's request for information under section 104(e) of CERCLA, 42 U.S.C. 9604(e) (“Information Request”).

Defendants' opposition briefs were due on February 14, 2011. (Reply at 2; Docket No. 123.) Defendant Boghossian filed an opposition on February 18, 2011 without offering any excuse for his belated response.³ Defendant Property failed to file any response at all. Pursuant to Local Rule 7–12, the Court need not consider Boghossian's opposition. However, even if the Court were to consider it, as it did, the Court finds that the United States is entitled to summary adjudication of the two issues as a matter of law.

III. LEGAL STANDARD

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of “ ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987); see also Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006) (“Material facts are those which may affect the outcome of the case.”) (internal citations omitted).

In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence and draws all reasonable inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630–31; see also Brookside Ass'cs v. Rifkin, 49 F.3d 490, 492–93 (9th Cir.1995). The evidence presented by the parties must be admissible. Fed.R.Civ.P. 56(c)(2).

IV. DISCUSSION

A. The United States Is Entitled to Recover its Response Costs from Defendants.

The costs incurred by the United States and documented in the EPA Cost Summary and the Declaration of William Kime are the types of costs recoverable under CERCLA. Section 9607(a) of CERCLA makes responsible parties liable for “ all costs of removal or remedial action incurred by the United States Government....” 42 U.S.C. § 9607(a)(4) (emphasis added.) “Essentially, Congress has authorized the government to utilize Superfund money to take direct response actions that are consistent with the NCP and to recover all response costs from all persons responsible for the release of a hazardous substance. 42 U.S.C. § 9607(a). The recovered funds are used to replenish the Superfund.” United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1500 (6th Cir.1989). The broad remedial purpose of CERCLA supports a liberal interpretation of the term “all costs.” See United States v. Chapman, 146 F.3d 1166, 1175 (9th Cir.1998) (“CERCLA is remedial legislation that should be construed liberally to carry out its purpose”); Meyer, 889 F.2d at 1503 (finding that the broad remedial purpose of CERCLA supports a liberal interpretation of recoverable costs).

Courts have found that recoverable response costs include:

(1) direct costs such as those incurred assessing, investigating, monitoring, testing and evaluating contamination at a site, as well as costs of designing and implementing a response action ( see 42 U.S.C. § 9601(23); New York v. Shore Realty Corp., 759 F.2d 1032, 1043 (2d Cir.1985) (finding that the state's costs in assessing the conditions of the site and supervising the removal of the drums of hazardous waste squarely fall within CERCLA's definition of response costs); Meyer, 889 F.2d at 1502–04);

(2) indirect costs such as overhead costs in administering the program and litigating Superfund enforcement actions ( see Meyer, 889 F.2d at 1503; United States v. Ottati & Goss, 900 F.2d 429, 444 (1st Cir.1990) (stating that “ordinarily courts should allow recovery of [ ] indirect costs”); California v. Neville Chem. Co., 213 F.Supp.2d 1115, 1124 (C.D.Cal.2002) (stating that recoverable response costs also include indirect costs or overhead));

(3) litigation costs, including reasonable fees, administrative costs and investigative costs related to the response action ( see 42 U.S.C. § 9601(25); Chapman, 146 F.3d at 1175 (concluding that the government, as the prevailing party, may recover attorney fees attributable to the litigation as part of its response costs); United States v. Gurley, 43 F.3d 1188, 1199–1200 (8th Cir.1994) (DOJ attorneys fees and litigation expenses recoverable));

(4) interest on the recoverable costs incurred ( see 42 U.S.C. § 9607(a)(4), Meyer, 889 F.2d at 1505).

The costs the United States seeks to recover fall within the categories of recoverable costs described above. In particular, the costs at issue fit within the following categories: (1) EPA payroll expenses and travel expenses incurred in conducting response actions in connection with the...