Torrance Redevelopment Agency v. Solvent Coating Co.

• Decision Date: 09 May 1991
• Docket Number: No. 90-3774 RSWL (Sx).,90-3774 RSWL (Sx).
• Citation: 763 F. Supp. 1060
• Court: U.S. District Court — Central District of California
• Parties: TORRANCE REDEVELOPMENT AGENCY, a public corporation, Plaintiff, v. SOLVENT COATING COMPANY, a corporation, et al., Defendants.

763 F. Supp. 1060

TORRANCE REDEVELOPMENT AGENCY, a public corporation, Plaintiff, v. SOLVENT COATING COMPANY, a corporation, et al., Defendants.

No. 90-3774 RSWL (Sx).

United States District Court, C.D. California.

May 9, 1991.

COPYRIGHT MATERIAL OMITTED

Kenneth L. Nelson, Agency Counsel, Torrance Redevelopment Agency, and Burke, Williams & Sorensen, Brian A. Pierik, Stephen R. Onstot, Joseph P. Buchman, Los Angeles, Cal., for plaintiff Torrance Redevelopment Agency.

Gary A. Meyer, Melissa M. Allain, James F. Thompson, Parker, Milliken, Clark, O'Hara & Samuelian, Los Angeles, Cal., for defendants, cross-defendants, cross-claimants and counterclaimants, Permalite Repromedia Corp. and Solvent Coating Corp.

Leroy A. Abelson, O'Neil, Huxtable and Abelson, Los Angeles, Cal., for cross-claimants, Thomas G. Woolson, Peter C. Woolson and Ruth A. Woolson aka Ruth A. Catlin.

William P. Driscoll, Driscoll & Peterson, Pasadena, Cal., A. Raymond Hamrick, III, Universal City, Cal., for defendants, Henry A. Roemisch, Jr., Linnea J. Roemisch and Henry A. Roemisch, III.

ORDER

LEW, District Judge.

Defendant Permalite Repromedia Corporation, d.b.a. Solvent Coating Company has moved the Court to dismiss with prejudice the Third, Fifth, Sixth, Seventh, Eighth and Ninth Causes of Action alleged in the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike portions of the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(f). Plaintiff timely opposed the motions. The matter was set for oral argument. After review of the papers filed, the Court determined that all of the issues had adequately been briefed and removed the matter from the Court's law and motion calendar pursuant to Federal Rule of Civil Procedure 78. Now having again reviewed all of the papers filed in support of and in opposition to the motion, the Court hereby issues the following order:

Permalite's motion to dismiss is GRANTED in part and DENIED in part. The Third, Sixth, Seventh, Eighth and Ninth Causes of Action are hereby DISMISSED WITH PREJUDICE. The Fifth Cause of Action is DISMISSED WITH PREJUDICE to the extent that it seeks damages and abatement-related costs.

Permalite's motion to strike portions of the Complaint is GRANTED in part and DENIED in part. Portions of the Complaint seeking punitive damages are hereby stricken. Portions of the Complaint seeking attorney's fees are stricken as to the Fourth and Fifth Cause of Action only.

Background

On August 17, 1985, Plaintiff Torrance Redevelopment Agency acquired property, located at 1031 Engracia Avenue in Torrance ("Property"), through eminent domain proceedings. Plaintiff filed this action on July 18, 1990 to recover costs and damages allegedly caused by Defendants' release of chemical substances on the Property prior to Plaintiff's acquisition of the Property. On December 14, 1990, the Court granted Defendant Permalite Repromedia Corporation's ("Permalite") motion to dismiss the Second through Eighth Causes of Action pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. In the December 14, 1990 Order ("December Order"), the Court also granted Permalite's motion to strike portions of the First Cause of Action in the original complaint which alleged punitive damages and to strike portions of the original complaint which sought recovery of attorney's fees. In the December Order, the Court granted Plaintiff thirty days leave to amend.

On January 9, 1991, Plaintiff filed a First Amended Complaint (the "Complaint") alleging the following causes of action: (1) recovery of response costs, attorney's fees and interest under section 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. section 9607; (2) recovery of response costs, attorney's fees, interest and indemnity under California Health and Safety Code section 25363(e); (3) recovery of response costs, attorney's fees, and interest pursuant to California Health and Safety Code sections 33459 et seq.; (4) indemnity based on California common law; (5) public nuisance pursuant to California Civil Code sections 3493 and 3494; (6) ultra-hazardous activity based on California common law; (7) trespass based on California common law; (8) negligence based on California common law; and (9) declaratory relief.

Now, Permalite has moved to dismiss with prejudice the Third, Fifth, Sixth, Seventh, Eighth and Ninth Causes of Action alleged in the Complaint. Permalite has also moved to strike portions of the Fourth through Ninth Causes of Action which allege claims for punitive damages. Defendants Thomas G. Woolson, Mark T. Woolson, Peter C. Woolson and Ruth A. Woolson (the "Woolson Defendants") have joined in Permalite's motion to dismiss.

Standard: Federal Rule of Civil Procedure 12(b)(6)

In considering a motion under Federal Rule of Civil Procedure 12(b)(6), the trial court is required to accept as true all material factual allegations of the party opposing the motion and to view the facts presented in the pleadings in the light most favorable to the nonmovant. North Star International v. Arizona Corporation Commission, 720 F.2d 578, 580 (9th Cir. 1983).

Third Cause of Action—Relief Under California Health and Safety Code sections 33459-33459.8

The Third Cause of Action, which was not included in the original complaint, seeks recovery of response costs pursuant to California Health and Safety Code sections 33459, et seq., ("AB 3193") which became effective January 1, 1991. California Health and Safety Code section 33459.4 provides that if a redevelopment agency undertakes action to remedy a release of hazardous substance, any responsible party shall be liable to the redevelopment agency for costs of removal. Permalite seeks to dismiss the Third Cause of Action on grounds that Plaintiff commenced the response actions for which it now seeks recovery as early as April 1986, long before AB 3193 went into effect.

AB 3193 lacks any express provision indicating that it applies retroactively to response actions commenced or taken prior to its effective date of January 1, 1991. Absent such an express retroactivity provision, there is a legal presumption that the statute applies only prospectively. See e.g., Evangelatos v. Superior Court, 44 Cal.3d 1188, 1208, 246 Cal.Rptr. 629, 641, 753 P.2d 585, 597 (1988) (citing United States v. Security Industrial Bank, 459 U.S. 70, 79-80, 103 S.Ct. 407, 412-23, 74 L.Ed.2d 235 (1982)).

Plaintiff contends its response costs are recoverable under AB 3193 because the plain language and the underlying policy of AB 3193 indicate that the measure may be applied retroactively. In support of this assertion, Plaintiff relies on a provision in AB 3193 which provides that the "scope and standard of liability for any costs recoverable pursuant to this section shall be the scope and standard of liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980" ("CERCLA"). Cal. Health & Safety Code § 33459.4(b) (West Supp.1991). Plaintiff contends this language allows AB 3193 to be applied retroactively, because courts have consistently held that CERCLA's language and history allows retroactive application of CERCLA.

Permalite contends that Plaintiff's reliance on CERCLA misconstrues and overstates the intended application of AB 3193. The Court agrees that the general reference to CERCLA in AB 3193 is not alone sufficient to overcome the presumption that legislation should not apply retroactively. If the Legislature intended such a reading of the CERCLA language in AB 3193, it could easily have incorporated specific language to that effect.

Plaintiff also argues that, as is true with CERCLA, the entire statutory scheme of AB 3193 is "overwhelmingly remedial and retroactive." Opp. at 5:25-28. In support of this argument, Plaintiff cites language contained in the report on AB 3193 issued by Assembly Committee on Environmental Safety and Toxic Materials (Exhibit 35 to Permalite's Motion). Specifically, Plaintiff cites a provision in the Committee Report which states that the rationale of the bill is "to encourage redevelopment agencies, ... to become involved in the acquisition and/or cleanup of sites, within a redevelopment project where a hazardous substance release or waste discharge has occurred." Opp. at 5:27-28-6:1-3 (quoting Exhibit 35 to Permalite's Motion). Plaintiff contends that the reference to a discharge that has occurred indicates the bill was intended to apply retroactively.

The Court disagrees with Plaintiff's characterization of the Committee Report language. Although the Committee Report indicates that the bill should remedy past discharges, the future-tense language stating a policy of encouraging redevelopment agencies to "become involved" indicates that the bill applies to future efforts to remedy past discharges.

Permalite argues that the reasoning courts have used in finding CERCLA may be applied retroactively is not applicable to AB 3193. Permalite contends that courts were inclined to allow CERCLA to be applied retroactively because CERCLA created a new and comprehensive statutory program for recovering response costs where no such federal remedies had previously existed. Conversely, Permalite argues, AB 3193 merely augmented a redevelopment agency's already existing statutory basis to seek response costs. Thus, Permalite argues, barring Plaintiff from a retroactive right of action under AB 3193 works no inequity on Plaintiff because, by its terms, AB 3193 is an additional remedy.

The Court agrees with Permalite's reasoning. In finding that portions of CERCLA may be applied retroactively, courts have examined the statutory scheme and legislative history of CERCLA, finding specific expressions of congressional intent to remedy past inadequacies in the law in enacting CERCLA. See e.g. United States v. Shell Oil...