Toxic Injuries Corp. v. Safety-Kleen Corp.

• Decision Date: 28 June 1999
• Docket Number: No. CV 99-4930 DT (RZX).,CV 99-4930 DT (RZX).
• Citation: 57 F.Supp.2d 947
• Court: U.S. District Court — Central District of California
• Parties: TOXIC INJURIES CORPORATION, a California public benefit corporation acting as a private attorney general on behalf of the general public, Plaintiff, v. SAFETY-KLEEN CORPORATION, a Wisconsin corporation, Laidlaw Environmental Services, Inc., a Delaware corporation, and Does 1 through 100, inclusive, Defendants.

57 F.Supp.2d 947

TOXIC INJURIES CORPORATION, a California public benefit corporation acting as a private attorney general on behalf of the general public, Plaintiff, v. SAFETY-KLEEN CORPORATION, a Wisconsin corporation, Laidlaw Environmental Services, Inc., a Delaware corporation, and Does 1 through 100, inclusive, Defendants.

No. CV 99-4930 DT (RZX).

United States District Court, C.D. California.

June 28, 1999.

Raphael Metzger, James William Parker, Raphael Metzger Law Offices, Long Beach, CA, for Plaintiff.

Robert L. Dickson, Christina O. Nyhan, Mark Emmanuel Gustafson, Frederick J. Ufkes, Arter & Hadden, Los Angeles, CA, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND ACTION TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES AND REMANDING ACTION TO THE SUPERIOR COURT; DENYING PLAINTIFF'S MOTION FOR AN AWARD OF JUST COSTS AND EXPENSES, INCLUDING ATTORNEY'S FEES, INCURRED DUE TO REMOVAL; GRANTING PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO REMAND; DENYING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED OR IN THE ALTERNATIVE MOTION TO STRIKE AS MOOT; DENYING PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO MOTION TO DISMISS AS MOOT

TEVRIZIAN, District Judge.

I. Background

A. Factual Summary

Plaintiff Toxic Injuries Corporation ("Plaintiff") brings this action against Defendants Safety-Kleen Corporation and Laidlaw Environmental Services, Inc. (collectively, "Defendants") for violations of the Safety Drinking Water and Toxic Enforcement Act (Cal. Health & Safety Code § 25249.6), violations of the Unfair Competition Act (Cal.Bus. & Prof.Code § 17200 et seq.) and declaratory relief.

Plaintiff provides the following summary of Safe Drinking Water and Toxic Enforcement Act in its Complaint:

In November 1986, California voters overwhelmingly approved an initiative to address growing concerns about exposure to toxic chemicals. (Id. at ¶ 10.) That initiative is officially known as the Safe Drinking Water and Toxic Enforcement Act, but is commonly referred to by its original name, "Proposition 65." (Id.) Proposition 65 requires the Governor to publish a list of chemicals that are known to the State of California to cause cancer, birth defects or other reproductive harm. (Id. at ¶ 11.) Any company with ten or more employees that operates within the State or sells products in California must comply with the requirements of Proposition 65. (Id. at ¶ 12.) Under Proposition 65, businesses are prohibited from knowingly discharging listed chemicals into sources of drinking water and are required to provide a clear and reasonable warning before knowingly and intentionally exposing persons to a listed chemical. (Id.) Proposition 65 authorizes the Attorney General, district attorneys, and county and local prosecutors, as well as private citizens, to bring suit against violators to enjoin future violations and to obtain civil penalties for past violations. (Id. at ¶ 13.)

Plaintiff then alleges the following facts in the Complaint:

Plaintiff is a California public benefit corporation whose charitable purposes include the identification, prevention and treatment of toxic injuries. (Complaint, ¶ 1.) Plaintiff brings this action as a private attorney general in the public interest pursuant to Health and Safety Code § 25249.7 and Business and Professions Code § 17203. (Id.) Defendant Laidlaw Environmental Services, Inc. is the successor to Defendant Safety-Kleen Corporation. (Id. at ¶ 3.)

Since as early as January 1, 1997, Defendants have engaged in the business of providing a parts washer service to industrial and automotive customers in the State of California. (Id. at ¶ 20.) As part of this service, Defendants have leased to customers in California various models of Safety-Kleen parts washer machines and periodically delivered parts washer solvent to customers for use in degreasing metal parts with the machines. (Id.) During this same period, Defendants also provided a Customer Owned Machine Service ("COMS"), whereby they delivered Safety-Kleen parts washer solvents to customers who had parts washer machines made by other companies. (Id.)

The solvents which Defendants deliver to its customers in California for use in said machines are either virgin or recycled petroleum hydrocarbon products, which are variously known as mineral spirits, Stoddard solvent, petroleum naphtha, and refined petroleum distillates. (Id. at ¶ 22.) The most common solvent that Defendants delivered to their California customers was a recycled solvent called "Safety-Kleen 105 solvent," because it has a nominal flashpoint of 105 degrees Fahrenheit. (Id.) This solvent is especially hazardous, because it is contaminated with numerous toxic chemicals which are not indigenous to the crude oil from which the virgin petroleum hydrocarbon solvents are refined. (Id.) The petroleum hydrocarbon solvents that Defendants provide to its customers in California contain more than 1,000 different chemicals, many of which are known to California to cause cancer and/or reproductive toxicity and which have been so designated on the list of such chemicals that has been published by the Governor of California. (Id.)

In describing "occupational exposure," Plaintiff claims that exposure to individuals occurred every time they operated the parts washer machines, because the machines generated aerosols from the parts washer solvents, volatile organic compounds evaporated from the parts washer solvents during their ordinary and intended use, and parts washer solvents splashed on the skin of workers scrubbing parts with the solvent to remove grease and particulate matter. (Id. at ¶ 25.) The violations occurred because individuals operating the parts washer machines were exposed to parts washer solvents and the labels that Defendants placed on the parts washer machines neither identified listed chemicals nor provided individuals operating the parts washer machines within the State clear and reasonable warning prior to exposing them to the carcinogens and reproductive toxicants in the solvents. (Id. at ¶ 26.) The violations are numerous and have occurred simultaneously from September 1, 1987 (the date on which Proposition 65 went into effect) to the present. (Id. at ¶ 27.) The timing of the violations is such that they occurred every moment that every individual within California operated a Safety-Kleen parts washer machine containing any one or more of the several Safety-Kleen parts washer solvents. (Id. at ¶ 28.)

All of the parts washer solvents contained petroleum hydrocarbon fractions and most contained chlorinated solvents as well. (Id. at ¶ 29.)

Defendants allegedly concealed from Californians and Plaintiff that their products contained chemicals known to the state to cause cancer and reproductive harm. (Id. at ¶ 30.) Defendants misrepresented the toxic hazards of their products to Plaintiff and Californians by preparing documentation stating that the products were "by definition slightly toxic to relatively non-toxic." (Id. at ¶ 33.) Defendants' concealment of the carcinogenic and reproductive toxic hazards of their products was sufficiently complete that Plaintiff did not know, nor in the exercise of reasonable care could Plaintiff have known, that Defendants were knowingly and intentionally exposing Californians to carcinogens and reproductive toxins in violation of Proposition 65, until Plaintiff discovered such at the end of the summer of 1998. (Id. at ¶ 34.)

B. Procedural Summary

On April 2, 1999, Plaintiff filed the Complaint in the Superior Court of California for the County of Los Angeles. On May 7, 1999, Defendants filed a Notice of Removal of Civil Action Under 28 U.S.C § 1441(b) (Diversity).

On May 17, 1999, Plaintiff filed a Motion to Remand Action to Los Angeles Superior Court and For an Award of Just Costs and Expenses, Including Attorney's Fees Incurred Due to Removal, which is currently before this Court. On this same date, Defendants filed a Motion to Dismiss for Failure to state a Claim Upon Which Relief Can Be Granted (F.R.C.P.12(b)(6)) or In the Alternative Motion to Strike (F.R.C.P.12(f)), which is also currently before this Court.

II. PLAINTIFF'S MOTION TO REMAND ACTION TO LOS ANGELES SUPERIOR COURT

A. Plaintiff's Request for Judicial Notice

Plaintiff requests that this Court take judicial notice of the following orders in the federal cases: (1) Order Remanding Action and Granting Fees and Costs, As You Sow v. The Sherwin-Williams Company, No. C 93-3577 VRW, 1993 WL 560086 (N.D.Cal.1993) 1993 U.S.Dist. Lexis 18310; and (2) Order Granting Plaintiff's Motion to Remand and Denying Request for Fees and Costs, As You Sow v. Shell Oil Company, No C-97-2395 SI (N.D.Cal. 1997).

Federal Rule of Evidence 201(d) provides that "[a] court shall take judicial notice if requested by a party and supplied with the necessary information." A judicially noticed fact "must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable or accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).

This Court finds that these cases are the proper subject of judicial notice. This Court notes, however, that the applicability of the analysis and holdings in those cases to this current action is limited to what this Court discusses below. Accordingly, this Court grants Plaintiff's request for judicial notice.

B. Standard

At any time prior to final judgment, the federal court may remand the case to the state court for a defect in removal procedures or for lack of subject matter jurisdiction. 28 U.S.C. § 1447(c). A plaintiff's motion for remand effectively forces a defendant, the party who invoked the federal court's removal jurisdiction, to prove whatever is necessary to support the...