Morrison & Foerster and Peter Hsaio; Call & Jensen and Joshua G. Simon for
Defendant and Respondent Ricoh Electronics.
Demetriou Del Guercio Springer & Francis, Brian D. Langa and Michael Anthony
Francis for Defendant and Respondent Universal Circuits, Inc.
Hinson & Gravelle and Douglas Arthur Gravelle for Defendant and Respondent
ICI Americas, Inc.
Bassi, Edlin, Huie & Blum and Paul David Rasmussen for Defendant and
Respondent Bell Industries, Inc.
Kutak Rock and Jad Terrell Davis for Defendant and Respondent Sanmina
Corporation.
Dykema Gossett and John Anthony Ferroli for Defendant and Respondent
Borgwarner Morse TEC Inc.
McGrath North Mullin & Kratz and John A. Andreasen; McGuireWoods and
Leslie Mark Werlin for Defendant and Respondent Beatrice Companies, Inc.
2
Ring Bender, J. W. Ring, Philip M. Bender and Christine L. Hein for Defendant
and Respondent Gallade Chemical, Inc.
Ring Bender and Norman A. Dupont for Defendants and Respondents DRSS-1
LLC, and Brenntag Pacific, Inc.
Lewis, Brisbois, Bisgaard & Smith and James Angelo Geocaris for Defendant and
Respondent Accurate Circuit Engineering, Inc.
Morris Polich & Purdy and Christopher Geoffrey Foster for Defendant and
Respondent Dyer Business Associates, LP.
Musick Peeler & Garrett and Steven J. Elie for Defendant and Respondent
Steelcase, Inc.
Morgan Lewis & Bockius, David Louis Schrader and Yardena R. Zwang-
Weissman for Defendant and Respondent ITT Corporation.
Wood Smith Henning & Berman, David Ferguson Wood and Jade Tran for
Defendant and Respondent Embee, Inc.
Morrison & Foerster and Peter Hsaio for Defendant and Respondent BASF
Corporation.
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 so-called "South Basin" area of Orange County. The
3
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-I, LLC (DRSS); Embee, Inc. (Embee); Emerson Electric Co. (Emerson); Gallade
Chemical, Inc. (Gallade); GE Aviation Systems LLC (GE Aviation); General Electric
4
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 Hazardous Substance Account Act (HSAA; Health & Saf. Code, § 25300 et seq.)
and the Orange County Water District Act (OCWD 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
1 Another party, RadioShack Corporation (RadioShack), was sued by the District and was part of this appeal until its appellate proceedings were stayed pending resolution of RadioShack's bankruptcy. (Orange County Water Dist. v. RadioShack Corp. (G048970, app. pending).) 5
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 (MAG); Orange County Water
6
Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252 (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 issues in this appeal. We will therefore reference the North Basin
appeals where appropriate. Moreover, although a number of the legal issues overlap, the
procedural postures of the North Basin and South Basin appeals are quite different. The
North Basin appeals involved judgments following a bench trial or motion for judgment
under Code of Civil Procedure section 631.8, while this South Basin appeal largely
involves judgments following orders granting summary judgment and summary
adjudication. Our standards of review in the North Basin and South Basin appeals are
therefore quite different, and this difference explains in large part the divergence between
our disposition of the North Basin appeals and our disposition in this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The District and Its Powers
The District is a public entity established by the California Legislature and
empowered to manage, replenish, regulate, and protect groundwater supplies within its
boundaries. (OCWD Act, §§ 1, 2.) Despite its name, the District is not a county water
district under the County Water District Law (Wat. Code, § 30000 et seq.) or a state
water district under the California Water District Law (id., § 34000 et seq.). Instead, it
operates under its own governing act, the Orange County Water District Act, with its own
set of powers and responsibilities.
7
Under the OCWD Act, the District has the power to "[t]ransport, reclaim, purify,
treat, inject, extract, or otherwise manage and control water for the beneficial use of
persons or property within the district and protect the quality of groundwater supplies
within the district." (Id., § 2, subd. (6)(j).) To advance the goals of maintaining and
protecting groundwater, the District may construct waterworks, acquire water rights,
purchase and import water, store water in underground basins or surface reservoirs, and
regulate the storage and use of groundwater in the District. (Id., § 2, subds. (5), (6)(b),
(c), (d) & (f).) The District must consent to any storage of groundwater by any other
person within its boundaries (id., § 2.1, subd. (a)), and the OCWD Act requires water
producers, under threat of criminal prosecution, to register and install a device to measure
the amount of water extracted (id., § 35). The District may assess fees on water
producers, such as a "Basin Equity Assessment" to encourage responsible water
extraction (id., §§ 2, subd. (6)(m), 31.5) and a "Replenishment Assessment" based on the
amount of water extracted (id., §§ 23, 27, 29).2
The District has the power of eminent domain (OCWD Act, § 2, subd. (10)) and
broad powers to bring appropriate legal actions to further its goals and effectuate its
powers (id., § 2, subd. (9)). As to the latter, the OCWD Act provides, "To carry out the
purposes of this act, [the District shall have the power] to commence, maintain, intervene
in, defend, and compromise . . . any and all actions and proceedings now or hereafter
begun to prevent interference with water or water rights used or useful to lands within the
2 A water producer is a person who extracts groundwater, thereby "producing" water for domestic consumption or other use. 8
district, or diminution of the quantity or pollution or contamination of the water supply of
the district, or to prevent unlawful exportation of water from the district, or to prevent
any interference with the water or water rights used or useful in the district which may
endanger or damage the inhabitants, lands, or use of water in the district. . . ." (Id., § 2,
subd. (9).) The District, however, is prohibited from intervening in disputes over water
rights within the District that do not involve pollution, contamination, exporting water
outside the District, or some threat thereof. (Ibid.)
The District also has the power to investigate and remediate pollution and
contamination in the surface and groundwater within its boundaries. (OCWD Act, § 8,
subds. (a), (b).) If the District undertakes such work, it may recover its reasonable costs
from the persons who caused the pollution or contamination under certain circumstances.
(Id., § 8, subd. (c).)
To maintain an adequate level of groundwater in its territory and protect
groundwater quality, the District acquires water from various sources at its own expense
and discharges it from District facilities in Orange County. This process replenishes or
"recharges" groundwater in the Orange County groundwater basin, of which the South
Basin is a part. The groundwater basin includes a number of aquifers, which extend up to
2,000 feet underground.
Although the District does not have any recharge facilities near the South Basin,
the District's recharge efforts raise the level of groundwater there. The groundwater level
increases because the entire basin is hydrologically connected, and the pressure response
9
from the District's recharge activities in other parts of the Orange County groundwater
basin is felt in the South Basin area.
The District's recharge activities effectively store water in the groundwater basin,
but the District does not itself use or extract groundwater. Other entities, such as the
IRWD, operate extraction wells and produce water for public drinking water supplies and
for other uses.
The South Basin, Groundwater Contamination, and the District's Response
The South Basin lies along California State Route 55 near the former Tustin
Marine Corps Air Station in southern Orange County. Defendants are current and former
owners and operators of businesses at sites in the South Basin area. At least for purposes
of this appeal, defendants appear to concede that hazardous substances were released at
or near their sites at some point in the past few decades. Further details regarding the
conditions at certain defendants' individual sites will be discussed below in connection
with those defendants' site-specific summary judgment and summary adjudication
motions. The District and other regulatory agencies were aware of hazardous substance
releases at some or all of defendants' sites well before the commencement of this
litigation, and certain sites were the subject of remediation activities under the
supervision of other public authorities.
As noted, the IRWD operates drinking water extraction wells in the South Basin
area. One such well, IRWD-3, began producing drinking water in 1997. A year later,
two VOC's, PCE and TCE, were detected in water extracted by the well. Three years
after that, perchlorate was also detected in IRWD-3.
10
In 2006, the District engaged a consultant, Todd Engineers, to prepare a work plan
for further investigation of groundwater contamination in the South Basin. The
objectives of the work plan included identifying its probable sources and delineating its
extent. The District referred to the effort as the South Basin Groundwater Protection
Project (SBGPP) and allocated approximately $77,000 to Todd Engineers' work.
A year later, Todd Engineers submitted a "Technical Memorandum and Work
Plan" for the SBGPP. The memorandum noted that contaminants had been detected at
IRWD-3 and described the SBGPP as an effort "[t]o assist the IRWD in the assessment of
current and future threats of contamination" and "to identify the source or sources of
contamination in IRWD-3." To produce the memorandum, Todd Engineers reviewed
public agency files relating to 55 sites in the South Basin area "that had potentially
impacted groundwater." Todd Engineers identified sites where onsite and offsite
groundwater contamination had been documented and analyzed groundwater flows and
subsurface geology to determine which sites had the highest risk of contributing to
contamination in water supply wells in the South Basin.
Todd Engineers also reviewed groundwater quality data from 16 wells in the
South Basin. In addition to IRWD-3, PCE and TCE were detected in five wells. One
well, located near a contaminated site, detected PCE and TCE concentrations that far
exceeded California maximum contaminant levels (MCL's), another well detected levels
of PCE and TCE at or near MCL's, and three wells detected low or trace levels.
Todd Engineers concluded, "There is no shortage of candidate sites that could
have caused observed impacts to IRWD-3 based on site-specific monitoring data. More
11
than 30 industrial sites have impacted shallow groundwater with PCE, TCE, and/or
perchlorate at concentrations at least one order of magnitude higher than recorded in
IRWD-3." Todd Engineers identified a number of possible pathways for contamination
to have reached IRWD-3. It concluded that the actual pathway was unknown based on
existing data, but that areas northeast of IRWD-3 represented the area of highest risk to
water supply wells. Todd Engineers identified a number of key data gaps that prevented
full understanding of the nature, extent, and sources of contamination in the South Basin
area. It developed a work plan to address the data gaps. The work plan, as described by
District staff, involved a first phase of six groundwater monitoring wells and a second
phase of nine groundwater monitoring wells, as well as technical analysis of the results.
The estimated cost for the work plan was $6.1 million.
The next year, in 2008, District staff completed their own technical memorandum
and an alternate plan for investigating contamination in the South Basin. The District's
first phase plan involved six monitoring wells and associated technical analysis. The
proposed budget for this plan was $625,000. District staff indicated that a phase two
investigation would also be required, at an estimated cost of $3 to $5 million, to fully
characterize the groundwater contamination and design a remediation program. The
District completed installation of the six monitoring wells in 2009.
The District's monitoring wells confirmed the presence of VOC and perchlorate
contamination. The District authorized additional "cone penetration" testing at various
locations in the South Basin, at a cost of approximately $216,000. The District continued
its investigation, and it began to develop plans for an interim treatment system. By 2012,
12
it had engaged an environmental engineering firm to conduct a remedial investigation,
feasibility study, and remedial action plan for the SBGPP as a whole. The budget for the
firm's effort was approximately $819,000.
The District has estimated that the total cost for construction of a groundwater
treatment system for the South Basin will be in the tens of millions of dollars. By the
time of the underlying litigation, however, the District's had spent approximately $1.5
million on tasks related to the SBGPP. The District continued to develop the SBGPP, but
the interim treatment system had not begun operation and the SBGPP itself had not been
constructed. The District had not yet cleaned up any groundwater in the South Basin.
The District's Allegations Against Defendants
In 2008, the District filed this lawsuit against a number of named defendants and
400 fictitiously named defendants to address current and threatened groundwater
contamination in the South Basin. Each defendant at issue in this appeal was either
named in the District's initial complaint or substituted for a fictitiously named defendant
later during litigation. In its First Amended Complaint (FAC), the District alleged that it
had discovered VOC and perchlorate contamination in the South Basin area of Orange
County. It determined that "prompt action" was required to address threatened and
existing contamination in the South Basin and initiated the SBGPP.3
3 Later in the litigation, the District filed a Second Amended Complaint (SAC). The SAC added allegations regarding the corporate histories of Brenntag and BorgWarner but was otherwise substantively identical to the FAC. 13
The FAC alleged that each defendant owned or operated a business "within the
relevant area" where hazardous wastes (i.e., VOC's or perchlorate) had been released or
that the defendant was otherwise responsible for such a release. As to certain defendants,
the FAC included details regarding groundwater contamination at a defendant's site and
specific VOC's released by that defendant. The FAC alleged, "Defendants' historical,
current, and ongoing releases and disposal of significant quantities of hazardous
substances and wastes, at various sites and facilities within the relevant area, have caused
the contamination alleged in this Complaint. VOC's and perchlorate in the soil and
groundwater, at, under, and emanating from, the sites pose an imminent and substantial
threat to public health, natural resources, and the environment."
To support the District's cause of action under the OCWD Act, the FAC alleged
that defendants "have caused and are causing" the District to incur costs to investigate
groundwater contamination and pollution and that defendants "have caused, are causing,
and will cause" the District to incur costs to remediate such contamination and pollution.
The District sought to recover these costs, as well as the costs of unspecified "increased
expenses," attorney fees, and a declaration regarding defendants' liability for future costs.
Similarly, in its HSAA cause of action, the FAC alleged that defendants' hazardous
substances releases had caused the District to incur necessary response costs, which it
sought to recover from defendants, along with a declaration as to future liability.
The District's negligence cause of action rested on allegations that defendants
failed to exercise due care in the handling, use, and remediation of hazardous substances.
Specifically, the FAC alleged that defendants negligently and recklessly failed to prevent
14
spills and other releases of hazardous substances, to monitor and discover such spills and
releases, to warn those affected, and to clean up or remediate the hazardous substances.
These negligent acts caused groundwater pollution and "[i]mpair[ed] the District's rights
to maintain the quality of groundwater throughout the District." The FAC claimed
investigation, remediation, and treatment costs, as well as other unspecified damages, as a
result of these acts. In connection with this cause of action, the FAC alleged that certain
defendants acted reprehensibly and with conscious disregard of known risks to health and
property. The District sought punitive damages against those defendants.
The FAC also alleged causes of action for trespass and nuisance. As to trespass,
the FAC alleged that the District "is the owner, actual possessor, and represents the
interests of the owners and actual possessors of property rights and interests in the
groundwater within its territory . . . ." The FAC alleged that defendants' release of
hazardous substances, negligent remediation activities, and failure to warn constituted
trespasses on the District's "property and interests" in the South Basin. The District
claimed the same investigatory, remediation, and treatment costs described above, as well
as punitive damages against certain defendants. As to nuisance, the FAC alleged that the
defendants' contamination and pollution of groundwater constituted a nuisance, which
"specially and adversely affected" the District and damaged the District's "property
rights, water rights, and interests." In connection with this cause of action, the District
claimed compensatory damages, punitive damages against certain defendants, and
equitable relief requiring defendants to abate the nuisance.
15
The District's declaratory judgment cause of action alleged that "[a]n actual
controversy exists concerning who is financially responsible for abating actual or
threatened pollution or contamination of groundwater resources within the District by
VOC's and perchlorate." The District sought "an adjudication of the respective rights and
obligations of the parties," which it later specified as (in part) an order "declaring that
defendants are liable for the full cost of all remedial and other actions necessary to abate
and remove VOC's and perchlorate which are contaminating and threatening the district's
property . . . ."
Pretrial Proceedings
In multiple and overlapping motions for summary judgment and summary
adjudication, some (though not all) filed jointly, defendants challenged each of the
District's causes of action. Certain defendants were completely successful and obtained
judgment in their favor as a result of these summary proceedings. Other defendants
obtained summary adjudication of all of the District's causes of action except its HSAA
and declaratory relief claims. Although the individual motions brought by defendants
differed somewhat in substance, the primary grounds are summarized below. Further
detail will be provided in the next section.
As to the District's claim under the OCWD Act, defendants pointed out that the
OCWD Act allows recovery only of remediation costs, i.e., "reasonable costs actually
incurred in cleaning up or containing the contamination or pollution, abating the effects
of the contamination or pollution, or taking other remedial action." (OCWD Act, § 8,
subd. (c).) Defendants claimed that the District had not incurred any remediation costs in
16
connection with the SBGPP. Instead, the District's costs were merely "investigatory" and
therefore not recoverable under the OCWD Act. Defendants asserted that the "District
[had] no project or activity underway [that was] physically removing contamination from
the aquifer in the South Basin." In opposition, the District acknowledged that it had not
completed a final remediation plan for the South Basin or physically removed
contamination from the aquifer in the South Basin. The District contended that its
investigatory costs were encompassed within the scope of the OCWD Act's recoverable
remediation costs. The District argued these costs were part of the District's overall effort
to design, develop, and refine the SBGPP, an "iterative process" that would result in
cleanup of contamination in the South Basin. The trial court agreed with defendants and
granted the motion.
In a similar vein, certain defendants argued that the District could not pursue a
claim under the HSAA because the District was not itself liable for any contamination in
the South Basin and therefore could not seek "contribution or indemnity" as those terms
are used in the HSAA. (Health & Saf. Code, § 25363, subd. (d).) In defendants' view, an
HSAA "contribution" claim required a judgment against the District (see Coca-Cola
Bottling Co. v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1378), and an HSAA
"indemnity" claim required the District to share a common liability with defendants, i.e.,
traditional equitable indemnity (see Jocer Enterprises, Inc. v. Price (2010) 183
Cal.App.4th 559, 573 (Jocer)). The District disagreed, arguing that it could sue for
"indemnity" because it was protecting its interests in groundwater in the South Basin.
The trial court again agreed with defendants and granted several motions on that basis.
17
Defendants challenged the District's trespass claim on the grounds that it did not
"exclusively possess" the affected groundwater and therefore could not bring such a
claim. Defendants pointed out that the District did not own any land in the South Basin
and did not extract any groundwater in the South Basin. Any rights held by the District
to regulate or appropriate groundwater in the South Basin were insufficient, in
defendants' view, to support a claim for trespass. The District opposed, arguing that its
interest in groundwater was substantial and need not be exclusive to support a trespass
claim. The trial court ruled in favor of defendants and granted defendants' motion for
summary adjudication. It explained, "While the [OCWD] Act gives the District certain
powers which may be translated into property interests in the groundwater, those interests
are not exclusive possessory interests and do not constitute ownership. They therefore do
not support a cause of action for trespass."
With respect to nuisance, defendants argued (among other things) that the District
lacked sufficient property interests in the South Basin or its groundwater to maintain an
action for private nuisance, that the District did not suffer a special injury sufficient to
maintain an action for public nuisance, and that any groundwater contamination was not a
"substantial and unreasonable" interference sufficient to support any claim for nuisance at
all. The District pointed primarily to its recharge activities as evidence that it had an
appropriative water right in groundwater in the South Basin, which was a sufficient
property right to support both a public and private nuisance.
The trial court concluded that defendants had "met their burden of establishing
that the District does not operate any groundwater production wells, does not extract or
18
pump groundwater, and[] its recharge operations would not be effective in the South
Basin[.]" The court was not persuaded that the District had any property rights in the
South Basin, including by reason of its recharge activities. The court explained, "the
District has never contemplated using the groundwater nor ever actually used the
groundwater, required elements for appropriation necessary to support nuisance." The
court further found that the District had not suffered a special injury sufficient to support
a private nuisance claim and that the presence of low levels of contaminants was not
substantial and unreasonable harm. The court therefore granted defendants' motions for
summary adjudication of the District's nuisance claim.
Defendants' common challenges to the District's negligence claim rested primarily
on the statute of limitations. Defendants claimed that the District had actual or
constructive knowledge of contamination at their sites at least as early as August 2003,
and in some cases more than 15 years before then. Defendants argued that the District's
knowledge triggered the three-year statute of limitations. (Code Civ. Proc., § 338, subd.
740.) In defendants' view, because the District did not file suit until June 2008, more
than three years later, its negligence claim against defendants was time-barred. The
District opposed defendants' motions primarily on the grounds that its knowledge of
contamination at defendants' sites was insufficient to trigger the statute of limitations. In
the District's view, the statute began to run only when the District became aware of
insufficient remedial efforts or offsite harm. The trial court found in favor of the
defendants. It determined that the District either had actual knowledge or was on inquiry
19
notice of a potential claim for groundwater contamination by defendants more than three
years before the District filed its lawsuit.
In rejecting the District's contrary argument, the court reasoned, "Actual
knowledge of the full extent of the damage to property is not required before a plaintiff is
held to the standard of actual knowledge for purposes of commencing the statute of
limitations. [Citation.] For this reason, the Court does not adopt the District['s] argument
that there is no appreciable harm to the District's property interests until 'the District
confirms that contamination has escaped remedial efforts overseen by state and local
regulators and threatens or contaminates groundwater used as a drinking water
resource.[']" The court granted defendants' motions for summary adjudication of the
District's negligence claim.
A number of defendants challenged the District's claims, primarily under the
HSAA, on the alternative grounds specific to their sites (e.g., causation). The evidence
supporting these motions is varied and voluminous, and the legal theories advanced in the
motions differ among the defendants, in some cases significantly. We will discuss these
motions, and the District's responses, in detail below. It is sufficient to mention here that
the trial court granted summary adjudication in favor of several defendants on site-
specific grounds in addition to other, more general grounds.4
4 The trial court denied a site-specific summary adjudication motion filed by Steelcase. In this appeal, Steelcase contends the court's denial was error. (See Code Civ. Proc., § 906.) We will address Steelcase's contention below. 20
Through these motions, and in some cases additional motions for judgment on the
pleadings challenging the District's claim for declaratory relief, Beatrice, Bell,
Sanmina, UNISYS, and UCI obtained complete adjudication of the District's claims
against them. The trial court entered judgments in their favor accordingly, and the
District appealed.
Bench Trial and Statement of Decision
The remaining defendants at issue in this appeal obtained summary adjudication of
all the District's claims except under the HSAA and for declaratory relief. The court held
a trial on these remaining claims in June and July 2013. The initial phase of trial was
limited to the District's standing or ability to bring suit under the HSAA. Following trial,
which included witness testimony as well as documentary evidence, the court announced
an oral tentative statement of decision finding that the District could not pursue a claim
under the HSAA (Health & Saf. Code, § 25363, subd. (d)) or obtain related declaratory
relief. The court noted, "Although this trial turned out not so much to be about standing,
the time spent here has been very valuable in the court's opinion. This trial has afforded a
certain freedom and stretching of the imagination not otherwise offered in summary
adjudication hearings. The process involving, as it did, the introduction of evidence, has
brought us full [circle] to a close analysis of the very statute that started the inquiry."
The court's written statement of decision comprehensively analyzed the language,
history, and structure of the HSAA. The court believed that the phrase "contribution or
indemnity" should be analyzed together as two various of the same concept, i.e., the
21
allocation of damages among multiple tortfeasors. "Indemnity" in the court's view meant
traditional equitable indemnity, which requires that the parties be responsible for a joint
legal obligation.5
Based on the evidence presented at trial, the court found that the District was not a
responsible party under the HSAA and therefore could not maintain a claim for
indemnity. A District employee testified that the District does not own any real property
(including any overlying land) in the South Basin. Nor does the District pump or extract
any groundwater in the South Basin. Another District employee referenced the District's
diversion rights with respect to the Santa Ana River, but the point of diversion was miles
away from the South Basin.
Given this conclusion, the court found that the District's claim for declaratory
relief must fail. The court had previously determined that the District's declaratory relief
claim was entirely dependent on its other claims. Having determined that the District's
remaining claims had no merit (either by summary adjudication or at trial), the court
found against the District on its declaratory relief claim as well.
The court entered judgment against the District and in favor of Accurate Circuit,
Brenntag, Dyer, Embee, ITT, Soco West, and Steelcase. The District again appealed.
5 Citing Jocer, supra, 183 Cal.App.4th at page 573, the court stated its view that only two forms of indemnity are recognized in California: express indemnity grounded in contract and traditional equitable indemnity. As we explain in part II.B. post, we disagree that indemnity in California is limited to these two forms. 22
DISCUSSION
I. Standards of Review
The District appeals judgments following motions for summary judgment and
summary adjudication, motions for judgment on the pleadings, and a bench trial. The
standards governing our review of summary judgment and summary adjudication
proceedings are substantively identical. (See California Bank & Trust v. Lawlor (2013)
222 Cal.App.4th 625, 630.) Our review in either case is de novo. (Id. at p. 631; see
Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1249 (Conroy).)
"A defendant's motion for summary judgment should be granted if no triable issue
exists as to any material fact and the defendant is entitled to a judgment as a matter of
law. [Citation.] The burden of persuasion remains with the party moving for summary
judgment. [Citation.] When the defendant moves for summary judgment, in those
circumstances in which the plaintiff would have the burden of proof by a preponderance
of the evidence, the defendant must present evidence that would preclude a reasonable
trier of fact from finding that it was more likely than not that the material fact was true
[citation], or the defendant must establish that an element of the claim cannot be
established, by presenting evidence that the plaintiff 'does not possess and cannot
reasonably obtain, needed evidence.' " (Kahn v. East Side Union High School Dist.
(2003) 31 Cal.4th 990, 1002-1003 (Kahn).) "The materiality of a disputed fact is
measured by the pleadings [citations], which 'set the boundaries of the issues to be
resolved at summary judgment.' " (Conroy, supra, 45 Cal.4th at p. 1250.) "If the
defendant fails to meet this initial burden, it is unnecessary to examine the plaintiff's
23
opposing evidence; the motion must be denied." (San Jose Construction, Inc. v.
S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1534 (San Jose Const.).)
"If the defendant 'carries his burden of production, he causes a shift, and the
opposing party is then subjected to a burden of production of his own to make a prima
facie showing of the existence of a triable issue of material fact.' [Citation.] 'The
plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show
that a triable issue of material fact exists but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists as to that cause of action . . . .' "
(Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1497 (Schmidt).)
"[T]o determine whether there is a triable issue, we review the evidence submitted
in connection with summary judgment, with the exception of evidence to which
objections have been appropriately sustained." (Frittelli, Inc. v. 350 North Canon Drive,
LP (2011) 202 Cal.App.4th 35, 41 (Frittelli).) "We liberally construe the evidence in
support of the party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1037.) "There is a triable issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic
["[T]he issue was waived as to this court because it was noted only in appellants' reply
brief, and not in their opening brief."]; Campos v. Anderson (1997) 57 Cal.App.4th 784,
794, fn. 3.)6
6 The District points out that the reviewing court in Pipitone concluded that the appellant did not waive her evidentiary challenges by failing to raise them in her opening brief. (Pipitone, supra, 244 Cal.App.4th at p. 1452 ["We . . . do not accept the argument that because [appellant] failed to expressly challenge the trial court's evidentiary rulings excluding portions of the declarations and the entirety of [her] expert report, we must 25
"We review the granting of a motion for judgment on the pleadings de novo to
determine whether a cause of action has been stated, treating as true all properly pleaded
material facts." (Soco West, Inc. v. California Environmental Protection Agency (2013)
213 Cal.App.4th 1511, 1514.) And, while we review the court's factual findings
following a bench trial for substantial evidence, we are not bound by the trial court's
determination of questions of law. "Under the general rules applicable to a trial court's
statement of decision, an appellate court independently reviews questions of law and
applies the substantial evidence standard to findings of fact." (Central Valley General
Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.)
defer to those rulings without considering whether the trial court's exclusion of potentially material evidence was proper."].) In a footnote, the Pipitone court explained, "There is no question that [appellant's] opening brief on appeal should have denoted which evidence in her moving papers had been excluded based on objections sustained by the trial court. Even so, each respondent has had the opportunity to address his objections raised and sustained below, and we consider the issue of the evidentiary rulings to be properly before this court as part and parcel of the appeals from the summary judgments." (Id. at p. 1451, fn. 12.) The import of Pipitone's holding is somewhat unclear. If Pipitone stands for the proposition that a reviewing court has the authority, in its discretion, to excuse an appellant's failure to raise a claim of error in her opening brief, provided that the respondent has an adequate opportunity to brief the issue, that proposition is uncontroversial. (See, e.g., Jameson v. Desta (2009) 179 Cal.App.4th 672, 674, fn. 1.) If, however, Pipitone is read to excuse an appellant generally from the requirement to raise errors in the trial court's evidentiary rulings or risk a finding of waiver, we respectfully disagree. Here, even though we have the authority to excuse the District's failure to raise issues in its opening brief, it has established no basis for us to exercise our discretion in that regard. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542 ["There is absolutely no sound reason [why] this issue could not have been raised in the [appellants'] opening brief."].) 26
II. HSAA
A. Overview of Disputed Issues
In their motions for summary adjudication and during the bench trial, defendants
challenged the District's HSAA claim on several grounds. Defendants primarily argued
the HSAA did not provide for a private action by the District in the absence of evidence
that it was jointly liable with defendants for costs arising from contamination in the South
Basin, i.e., the HSAA provided only for a private action for traditional equitable
indemnity. We considered this issue in our recent Alcoa opinion and concluded that the
District was able to bring suit for statutory indemnity under the HSAA even without
proof it was jointly liable with the defendants. (See Health & Saf. Code, § 25363, subd.
(d); Alcoa, supra, 12 Cal.App.5th at pp. 298-304.) For reasons we explain, we will
adhere to that interpretation here.
Defendants also raised a number of specific arguments based on the facts and
expert analyses of their sites and activities. These arguments, and the facts and analyses
on which they are based, are complex and unique to each site, but they largely raise
questions of causation and the identification of potentially responsible parties. We will
discuss them in detail below. We conclude that none of the defendants were entitled to
summary adjudication of the District's HSAA claim on these site-specific grounds. One
defendant, Marotta, asserted a defense based on the HSAA's nonretroactivity provision.
(See Health & Saf. Code, § 25366, subd. (a).) For reasons we will explain, we conclude
Marotta did not establish the elements of this defense and was therefore not entitled to
summary adjudication on this basis either.
27
B. The District's Ability to Bring Suit
The District argues that the court erred in finding, on summary adjudication and
following its bench trial, that the District could not bring suit for "contribution or
indemnity" under the HSAA in the absence of evidence that the District itself was jointly
liable for remediation costs stemming from groundwater contamination in the South
Basin. The HSAA reads in relevant part as follows: "A person who has incurred
response or corrective action costs in accordance with this chapter, Chapter 6.5
(commencing with Section 25100), or the federal act may seek contribution or indemnity
from any person who is liable pursuant to this chapter." (Health & Saf. Code, § 25363,
subd. (d).)7
We comprehensively examined the scope of the HSAA's private right of action in
our recent Alcoa opinion. (Alcoa, supra, 12 Cal.App.5th at pp. 298-304.) We concluded
that the term "indemnity," as used Health and Safety Code section 25363, encompasses a
plaintiff's cause of action for reimbursement of costs even where (as here) the plaintiff is
not jointly liable for such costs. We explained, "The HSAA's private right of action
appears to be an instance of 'statutory indemnity,' which Black's Law Dictionary defines
as '[i]ndemnity conferred by legislation' and cites as an example the common statutory
obligation of corporations to indemni[f]y their personnel." (Id. at p. 301.) Other
7 The quoted language became effective on January 1, 2016. (Stats. 2015, ch. 458, § 2.) Prior to that date, among other changes, the beginning of the first sentence read, "Any person who has incurred removal or remedial action costs in accordance with this chapter . . . ." (Former Health & Saf. Code, § 25363, subd. (e).) These changes do not appear to affect the substance of this appeal, so we will refer to the current language in our discussion. 28
instances of statutory indemnity exist outside the HSAA. (See, e.g., Lab. Code, § 2802;
Civ. Code, §§ 1833, 3336; see also Alcoa, at pp. 301-302.) We rejected the argument,
advanced by defendants and adopted by the trial court here, that a private cause of action
for indemnity under the HSAA is limited to plaintiffs who can establish the elements of
traditional equitable indemnity. (Alcoa, at pp. 300-301.) Instead, the HSAA allows any
plaintiff "who has incurred response or corrective action costs" to seek reimbursement of
those costs from a liable person, provided it can establish the other elements of a claim.
(Health & Saf. Code, § 25363, subd. (d); Alcoa, at pp. 300-301.)
Defendants' arguments to the contrary effectively mirror those which we
considered and found unpersuasive in Alcoa. We have assessed the arguments advanced
in this appeal, including based on legislative history, and do not believe reconsideration
of our conclusions in Alcoa is warranted. We therefore conclude that the trial court erred
by rejecting the District's HSAA claim on the basis that the District had no ability to sue
because it had not demonstrated that it was liable for remediation costs caused by
groundwater contamination in the South Basin.
C. HSAA Elements: Causation and Potentially Responsible Parties
As noted, several defendants moved for summary adjudication of the District's
cause of action under the HSAA on alternative grounds. These defendants challenged the
District's ability to prove the elements of its HSAA claim, specifically the elements of
causation and potentially responsible parties.
The HSAA is California's counterpart to the federal Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA; 42 U.S.C.
29
§ 9601 et seq.). (Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th
857, 865, fn. 4.) Although the HSAA and CERCLA are not identical, the HSAA adopts
The third element, causation, focuses on whether a release or threatened release of
hazardous substances from a site caused a plaintiff's necessary response costs.8 The
causation requirement is based on the site at issue. (Alcoa, supra, 12 Cal.App.5th at p.
8 The requirement of consistency with the national contingency plan is not at issue in this appeal and will therefore be omitted from our discussion of this element. (Cf. Alcoa, supra, 12 Cal.App.5th at pp. 297-305.) 30
306 ["[A plaintiff] is only required to show a release or threatened release from a site and
a causal connection between that release or threatened release and its response costs."].)
For purposes of this element, the identity of the person who caused the release or
threatened release is irrelevant. "It is clear from the text, structure, and legislative history
of [42 U.S.C. § 9607] that the provision does not require a plaintiff to show that a
particular defendant caused either the release or the incurrence of response costs in order
to prove liability." (Kalamazoo River Study Group v. Menasha Corp. (6th Cir. 2000) 228
F.3d 648, 655 (Kalamazoo River); see United States v. Alcan Aluminum Corp. (3d Cir.
1992) 964 F.2d 252, 265 (Alcan Aluminum).)
A response cost is " 'necessary' " if "there is a threat to human health or the
environment and . . . the response action is addressed to that threat." (Carson Harbor,
supra, 270 F.3d at p. 872; see Alcoa, supra, 12 Cal.App.5th at pp. 327-328.) The
necessity requirement may be met "if it is shown that any release violates, or any
threatened release is likely to violate, any applicable state or federal standard, including
the most stringent." (Amoco Oil Co. v. Borden, Inc. (5th Cir. 1989) 889 F.2d 664, 670-
671; see Alcoa, at p. 328 ["The presence of VOC contamination at significant levels was
a threat to human health and the environment."].) "Investigatory costs incurred 'in order
to assist with and help plan the eventual remediation and cleanup efforts' are necessary
under CERCLA [citation] and ' "are recoverable even absent any subsequent recoverable
response costs" ' [citation]." (Alcoa, at pp. 327-328.)
The fourth element, potentially responsible parties, defines potential liable
defendants by their relationship to the site at issue. "[T]he version [of CERCLA]
31
ultimately passed by Congress . . . imposed liability upon a class of responsible persons
without regard to whether the person specifically caused or contributed to the release and
the resultant response costs." (Alcan Aluminum, supra, 964 F.2d at p. 265.) "These
categories are based on the defendant's relationship to the site, not the defendant's
relationship to the release or threatened release that caused the incurrence of response
costs." (Alcoa, supra, 12 Cal.App.5th at p. 306.) As relevant here, these categories
include (1) the current "owner and operator" of the site at issue and (2) "any person who
at the time of disposal of any hazardous substance owned or operated any facility at
which such hazardous substances were disposed of." (42 U.S.C. § 9607(a)(1)-(2).)
"Disposal" in this context means "the discharge, deposit, injection, dumping,
spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or
water so that such solid waste or hazardous waste or any constituent thereof may enter
the environment or be emitted into the air or discharged into any waters, including
ground waters." (42 U.S.C. §§ 6903(3), 9601(29).) Because this definition includes
actions that "may" lead to hazardous substances entering the environment, the hazardous
substances need not actually reach the environment for an action to constitute a disposal.
In their motions, several defendants challenged the District's ability to prove one
or both of these elements. We will discuss each defendant or group of related defendants
in turn. In summary, we conclude none of these defendants—BorgWarner and Emerson,
32
GE Aviation, Marotta, Ricoh, Sanmina, Steelcase, and UCI—has demonstrated
entitlement to summary adjudication of the District's HSAA claim.
1. BorgWarner and Emerson
From 1955 to 1973, a predecessor of BorgWarner (according to the District's
allegations) owned and operated a manufacturing plant at a site at 3300 South Standard
Street in Santa Ana. It sold the site to Emerson in 1973. Emerson owned and operated
the site until 1988 and continued to operate the site under lease until 1991. Emerson used
the site for manufacturing electrical equipment.
When Emerson sold the site in 1988, preliminary environmental investigations led
to concerns that "the historical use of halogenated [VOC's] may have resulted in the
discharge of VOCs at the site." Further investigations revealed that "VOCs had
significantly impacted soil and groundwater underlying the site," in decreasing
concentrations down to at least 80 feet below the surface. Emerson developed a
corrective action plan to remediate the site, which the Regional Water Quality Control
Board (RWQCB) approved. The plan involved construction of a 1,190-foot bentonite
slurry wall, over 2 feet thick, around the two primary sources of VOC contamination.
The wall extended down to a clay aquitard, approximately 65 feet below the surface.
Approximately 7.5 million gallons of groundwater and 40,600 tons of soil within the
slurry wall were extracted, removed, and treated. Treated soil was then backfilled at the
site.
Following these remediation efforts, significant contamination remained in
groundwater. One groundwater monitoring well near the contamination sources detected
33
13,145 parts per billion (ppb) of total VOC's. Emerson proposed a further remediation
work plan, consisting of a dual vacuum extracting and air sparging system with injection
of hydrogen peroxide. The RWQCB approved the plan. The system operated for
approximately six months, and it significantly reduced the concentration of VOC's in
groundwater. By April 1998, the average concentration of total VOC's in groundwater
monitoring wells at the site was 256 ppb. An offsite monitoring well detected only TCE,
at a concentration of 2.2 ppb, a decrease from 13 ppb three years earlier.9
In March 1999, the RWQCB issued a "no further action" letter regarding the
Emerson site. The RWQCB wrote, "Emerson has satisfactorily completed groundwater
remediation at this site. Concentrations of VOCs in groundwater have been significantly
reduced from over 100,000 ppb to an average of 256 ppb. The lateral and vertical extent
of groundwater that has been impacted by VOCs is very limited, and is primarily
confined to the area within the boundary of the slurry wall. Based on the mass and
concentrations of VOCs that remain in the groundwater, the VOCs are not considered to
be a threat to the beneficial uses of the Santa Ana Pressure Groundwater Subbasin. On
the condition that the information provided to us was accurate and representative of
existing groundwater conditions at the site, no further investigation or remediation of
groundwater is required." The RWQCB concluded that "no further action at the site is
necessary."
9 The applicable MCL's for the relevant VOC's in drinking water are 5 ppb for TCE and PCE, 6 ppb for 1,1-dichloroethylene (1,1-DCE), and 200 ppb for 1,1,1- trichloroethane (TCA). (See Cal. Code Regs., tit. 22, § 64444.) 34
The RWQCB employee responsible for reviewing the Emerson site testified at
deposition that "the VOCs that were left in the soil and groundwater did not represent a
threat to the beneficial uses of groundwater in the basin because [] the amount remaining
was so much less than what was there originally and . . . what was left was situated in the
perched groundwater zone above the clay layer which exists above the primary
groundwater producing zone. [¶] And that with the concentrations and what limited
mass was left at the site and the lack of transport of VOCs at the site historically, that
what was left there was not going to migrate into the deeper groundwater and impact any
existing or future groundwater production wells for drinking water."
A District expert, Anthony Brown, acknowledged he "could not conclude that it is
more likely than not that releases of contaminants at the Emerson facility pose a threat to
water supply wells." He believed it was reasonable for the RWQCB to conclude, based
on the data available at the time, that the remaining VOC's at the Emerson site did not
constitute a threat to beneficial uses of the groundwater basin. He also believed it was
reasonable for the RWQCB to close its review of the site. Brown could not say whether
additional onsite or offsite remediation would be required.
Based on these facts, BorgWarner and Emerson challenge the District's ability to
prove that its response costs were "necessary" under the HSAA's third element, i.e.,
whether there is evidence that VOC releases from the Emerson site pose a threat to
human health or the environment. (See Carson Harbor, supra, 270 F.3d at pp. 871-872;
see also Alcoa, supra, 12 Cal.App.5th at pp. 327-328.) BorgWarner and Emerson argue
there is no triable issue of fact regarding whether the releases are such a threat because
35
the RWQCB found that VOC's at the Emerson site were not a threat to beneficial uses of
groundwater, and they further argue the District's expert did not rebut that conclusion.
This argument ignores the fact that VOC contamination remains in groundwater
both at the Emerson site and offsite. At the Emerson site, the evidence shows that total
groundwater VOC concentrations remained at 256 ppb after remediation. This
concentration exceeds the applicable MCL's for the relevant VOC's in drinking water, as
noted above: 5 ppb for TCE and PCE, 6 ppb for 1,1-DCE, and 200 ppb for TCA. (See
Cal. Code Regs., tit. 22, § 64444.) A reasonable trier of fact could find that these
concentrations posed a threat to human health or the environment, notwithstanding the
RWQCB's conclusion that no further action was necessary at the site. (Alcoa, supra, 12
Cal.App.5th at p. 328; Amoco Oil Co. v. Borden, Inc., supra, 889 F.2d at p. 671; United
Alloys, Inc. v. Baker (C.D.Cal. 2011) 797 F.Supp.2d 974, 996.) Similarly, while TCE
concentrations offsite had decreased from 13 ppb to 2.2 ppb, because levels of offsite
contamination exceeded applicable MCL's in the past and some offsite contamination
remained, a reasonable trier of fact could conclude that offsite groundwater
contamination posed a threat to human health or the environment as well.
BorgWarner and Emerson point out that hydrogeological conditions at the
Emerson site make it unlikely that groundwater contamination would migrate to a depth
sufficient to impact drinking water production wells. But drinking water production
wells are not the only environmental resource worth protecting. The environment
includes both shallow and deep aquifers, and significant VOC contamination even in
36
shallower groundwater could reasonably pose a sufficient threat to the environment
justifying response costs.
Although the conclusions of the RWQCB and the admissions of the District's
expert are persuasive evidence that further action at the Emerson site would be
unnecessary, in light of the undisputed VOC contamination that remains at the site, we
cannot say as a matter of law that this evidence would require a reasonable trier of fact to
find that such contamination at the site does not pose a threat to human health or the
environment. Defendants' evidence therefore does not "preclude a reasonable trier of fact
from finding" in the District's favor on this element. (Kahn, supra, 31 Cal.4th at p.
1003.) Summary adjudication of the District's HSAA claim on this basis was therefore
error. (See San Jose Const., supra, 155 Cal.App.4th at p. 1534.)
2. GE Aviation
GE Aviation or its predecessors have leased a site at 2036 and 2040 East Dyer
Road in Santa Ana since 1999. GE Aviation is the current operator of the site. It
manufactures aircraft parts and equipment and, as part of its operations, uses various
solvents, including PCE. Although solvents were detected in groundwater at the site, GE
Aviation denied any responsibility for groundwater contamination. Brown, the District's
expert, testified that he would not be able to conclude it was more likely than not that any
37
hazardous substance releases at the site occurred after 1991, i.e., during the tenancy of
GE Aviation or its predecessors.10
Based on these facts, GE Aviation argues that it cannot be a potentially
responsible party under the fourth element of an HSAA and CERCLA claim. It contends
that it can be liable under that element only if the District presents evidence that a
hazardous substance release or disposal occurred during its tenancy. GE Aviation is
incorrect. The current operator of a site is, under most circumstances, a potentially
responsible party under CERCLA and the HSAA. (42 U.S.C. § 9607(a)(1).) "[U]nder
CERCLA, an operator is simply someone who directs the workings of, manages, or
conducts the affairs of a facility. To sharpen the definition for purposes of CERCLA's
concern with environmental contamination, an operator must manage, direct, or conduct
operations specifically related to pollution, that is, operations having to do with the
leakage or disposal of hazardous waste, or decisions about compliance with
environmental regulations." (United States v. Bestfoods (1998) 524 U.S. 51, 66-67
(Bestfoods).)
An operator need not itself have caused contamination or pollution to be liable;
there is no exception to liability for "innocent" operators. (Litgo New Jersey Inc. v.
Commissioner New Jersey Dept. of Environmental Protection (3d Cir. 2013) 725 F.3d
10 We note that GE Aviation's statement of facts in its separate respondent's brief is inadequate. To support its factual assertions, GE Aviation provides citations only to its own memorandum of points and authorities in support of its motion for summary judgment in the trial court. The Rules of Court require citation to the underlying evidence itself. (See Cal. Rules of Court, rule 8.204(a)(1)(C); Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4 (Jackson).) 38
369, 381 (Litgo).) "The statute does not require a showing that the operator was directly
responsible for the release of a hazardous substance for [potentially responsible party]
liability to attach. [Citations.] Indeed, in the case of a current operator, as opposed to a
past operator, the plaintiff is not even required to show that the party was an operator
when an active 'disposal' of hazardous waste occurred." (Id. at p. 381.) "In defining
'operator,' the Supreme Court employed broad, passive language: an operator is one who
is involved in operations 'having to do with the leakage or disposal of hazardous waste,'
[citation], not one who is involved in operations 'causing' or 'leading to' the leakage or
disposal of waste. Moreover, the Court expressly noted that operator liability may be
imposed when a party is responsible for 'decisions about compliance with environmental
regulations . . . .' " (Id. at p. 382.)
GE Aviation presented evidence that, at most, showed that a hazardous substance
release had not occurred during its tenancy. It did not present evidence, for example, that
it is not responsible for decisions about compliance with environmental regulations. GE
Aviation therefore failed to meet its burden on summary judgment to show that the
District could not establish this element of its HSAA claim, i.e., that it was not a
potentially responsible party as a current operator. (See Kahn, supra, 31 Cal.4th at p.
1003.) It was error to grant summary adjudication on this basis. (See San Jose Const.,
supra, 155 Cal.App.4th at p. 1534.)
GE Aviation also argues that the District cannot establish causation. It claims it
satisfied its burden on summary judgment by showing that it did not cause contamination
(i.e., a hazardous substance release) at the site. GE Aviation misinterprets the causation
39
requirement under the HSAA. As noted above, the District need not show that GE
Aviation caused a release at the site. Instead, the HSAA's causation element requires the
District to show that a release at the site—from whatever source—caused the District's
necessary response costs. As a current operator, GE Aviation is strictly liable for any
such releases, regardless when they occurred. (See Litgo, supra, 725 F.3d at p. 381.)
Because GE Aviation has not made an adequate evidentiary showing under the correct
standard, it is not entitled to summary adjudication on this basis either.11
3. Marotta
Marotta owned a site at 2215 South Standard Avenue in Santa Ana from
approximately 1954 until 1972. Its operations at the site included engineering,
manufacturing, and testing pneumatic and hydraulic valve components. In its
manufacturing processes, Marotta used TCE and PCE. TCE and PCE have been detected
in soil and groundwater at the site.
A District employee testified at deposition that VOC contamination of soil and
groundwater at the site occurred sometime before 1992. However, the District did not
have any more specific information regarding when the VOC release or releases occurred
11 At oral argument, GE Aviation argued it was entitled to summary adjudication because it had established a complete defense to the District's HSAA claim based on third party liability. (See Health & Saf. Code, § 25325.5, subd. (b); 42 U.S.C. § 9607(b)(3).) GE Aviation did not include this argument in its briefing. We therefore decline to consider it. (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1027, fn. 2 (Ace American) ["We need not consider an argument not mentioned in the briefs and raised for the first time at oral argument."].) 40
or whether Marotta was the source. Brown, the District's expert witness, could not say
whether it was more likely than not that Marotta released contaminants at the site.
Marotta argues it was entitled to summary adjudication of the District's HSAA
claim because it did not "release[]" chemicals at the site. Although Marotta advanced this
argument in the trial court, the court did not reach this argument because it ruled in
Marotta's favor on a retroactivity defense. (We will discuss this retroactivity defense in
part II.D., post.) We will consider Marotta's argument, however, as a potential alternative
ground on which to affirm. (See Schmidt, supra, 223 Cal.App.4th at p. 1498.)
Marotta's argument does not contain any legal analysis of the standards for
liability under the HSAA or any citation to legal authority on that issue. As such, it is
unpersuasive. And, in any event, Marotta's liability under the HSAA does not depend on
whether the District can prove Marotta caused a "release" of hazardous substances at its
site. Its liability as a former owner requires a showing only that it "disposed of"
hazardous substances there. (42 U.S.C. § 9607(a)(2); Voggenthaler, supra, 724 F.3d at p.
1064.) Because Marotta's evidence does not show that the District cannot prevail on this
element, the trial court properly denied summary adjudication of the District's HSAA
claim on this basis. (See Kahn, supra, 31 Cal.4th at p. 1003; San Jose Const., supra, 155
Cal.App.4th at p. 1534.)
4. Ricoh
Ricoh manufactures various electronic components at several sites in Orange
County. From 1978 through 1988, its manufacturing process for one such component,
copy machine drums, involved the use of PCE. Testing in 1996 revealed PCE
41
contamination in soil and shallow groundwater at two Ricoh sites. Ricoh embarked on a
multistage remediation effort approved by the RWQCB. The effort included a
groundwater treatment and extraction system, a dual-phase extraction system, and
chemical injections.
Ricoh moved for summary adjudication of the District's HSAA claim on the
District's ability to bring suit as well as site-specific grounds. The trial court agreed,
consistent with its prior rulings, that the District could not bring a claim for contribution
or indemnity under the statute. Under the heading "Site-Specific Claim(s)," the court
determined that Ricoh's efforts to remediate onsite contamination had been effective but
that offsite contamination may remain. The court concluded that Ricoh's evidence
regarding onsite contamination "would likewise support summary adjudication on this
independent basis," but the same could not be said of offsite contamination. As to offsite
contamination, the court explained, "the [c]ourt declines to find that Ricoh has met its
evidentiary burden in this area and so[] does not base the aforementioned granting of
summary adjudication on this evidence."
In its opening brief, the District asserted that Ricoh did not obtain summary
adjudication on "causation-related" grounds. Ricoh disputes this assertion, claiming in its
separate respondent's brief that the court's summary judgment ruling was "based on
Ricoh's site-specific evidence in granting summary judgment on all causes of action."
Later in the same brief, Ricoh repeats this claim: "As noted at the outset, the trial court
granted Ricoh's motion for summary judgment on alternative grounds — the grounds
42
applicable to all Group One Defendants and the site-specific grounds applicable only to
Ricoh."
Ricoh's claims are so broad as to be misleading. Ricoh does not distinguish
among its causes of action, and it does not discuss the trial court's mixed ruling on the
District's HSAA claim specifically. Nor does Ricoh explain how the court's conclusion,
that triable issues of fact remained on the District's HSAA claim, could be interpreted as
an alternate ground on which the court based summary judgment. A motion for summary
adjudication may not be granted if it resolves only part of a cause of action (Code Civ.
Proc., § 437c, subd. (f)(1)), absent stipulation by the parties and compliance with other
procedural requirements (id., § 437c, subd. (t)).
Ricoh argues that the District's failure to address site-specific grounds for
summary judgment in its opening brief forfeits any claim of error on appeal. (See
Christoff v. Union Pacific Railroad Co., supra, 134 Cal.App.4th at pp. 125-126.) But, as
we have discussed, the trial court did not grant summary adjudication of the District's
HSAA claim on grounds specific to Ricoh's site. Instead, it found that triable issues of
fact remained as to offsite contamination. Because the trial court did not adopt any site-
specific grounds for summary adjudication, the District was not required to address them
in its opening brief. No forfeiture occurred.12
12 An appellant is required to raise and support claims of error in its opening brief or they will be forfeited. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) But the trial court's failure to adopt grounds for summary judgment or summary adjudication urged by the respondent does not constitute an error from an appellant's point of view. The appellant therefore need not address them in its opening brief (though it may do so). 43
Ricoh further argues, in cursory fashion, "Alternatively, Ricoh's judgment should
be affirmed based on the merits of its site-specific showing. As the trial court found, the
elements of causation and damages are negated for every cause of action because
undisputed evidence established that there is no threat to drinking water due to any
alleged Ricoh contamination." Ricoh again misstates the trial court's findings. For the
HSAA cause of action, the trial court did not find that the elements of causation and
damages were "negated." Moreover, Ricoh does not discuss the merits of the District's
causes of action at all. Instead, it again asserts that the District forfeited any claim of
error because it did not discuss grounds for summary adjudication specific to Ricoh's site.
Ricoh's argument is unpersuasive for the reasons we have already discussed.
Ricoh offers no other argument why its motion for summary adjudication should
have been granted on site-specific grounds. Ricoh has therefore not shown it is entitled
to summary adjudication on this basis.
5. Sanmina
Sanmina (or its predecessor) owned a site at 2215 South Standard Avenue in Santa
Ana from 1987 until 1998. Sanmina manufactured circuit boards there. Sanmina's
manufacturing process involved the use of the VOC solvent 1,1,1-TCA. Sanmina applied
for a permit from the South Coast Air Quality Management District for a cold degreaser
Indeed, "[i]n an appeal from a summary judgment . . . we are statutorily prohibited from affirming the judgment on a ground not relied on by the trial court unless we first afford the parties an opportunity for supplemental briefing on the issue." (Flagship Theatres of Palm Desert, LLC v. Century Theatres, Inc. (2011) 198 Cal.App.4th 1366, 1377, fn. 7, citing Code Civ. Proc., § 437c, subd. (m)(2).) This statute would make little sense if an appellant were required to address those grounds in its opening brief. 44
that would use one 55-gallon drum of 1,1,1-TCA per month. Degreasers are a common
source of VOC contamination.
VOC releases occurred at the site. Testing at the site revealed 1,1,1-TCA
contamination in soil and wastewater ground samples. 1,1-DCE was detected at the site
as well. 1,1,1-TCA can break down into 1,1-DCE.
Sanmina's expert had no knowledge as to whether Marotta, a prior owner of the
site, used 1,1,1-TCA in its operations. He did not believe that 1,1,1-TCA contamination
had migrated from upgradient sources. He "presume[d]" that Standard Logic, another
prior owner, used 1,1,1-TCA. But he did not know whether the 1,1,1-TCA found in soil
at the site came from Standard Logic or Sanmina.
District witnesses admitted they had no information regarding when VOC releases
occurred and no information whether Sanmina itself released VOC's into the soil.
Sanmina's expert agreed there was no evidence that Sanmina released 1,1,1-TCA or other
VOC's at the site.
Sanmina argues, here as in the trial court, that the District could not prove it was a
potentially responsible party under the fourth element of an HSAA and CERCLA claim.
Because Sanmina is a former owner and operator of the site, the fourth element is
satisfied if it "disposed of" hazardous materials there. (42 U.S.C. § 9607(a)(2).)
Evidence of a "release" is not required. (See Voggenthaler, supra, 724 F.3d at p. 1064.)
As noted, "disposal" includes the spilling, leaking, or placing any hazardous waste
"into or on any land or water so that such solid waste or hazardous waste or any
constituent thereof may enter the environment or be emitted into the air or discharged
45
into any waters, including ground waters." (42 U.S.C. §§ 6903(3), 9601(29).) The
hazardous substances need not actually reach the environment for an action to constitute
a disposal. (Voggenthaler, supra, 724 F.3d at p. 1064.) "[U]nder subsection (a)(2), any
owner or operator is liable if he was an owner or operator at the time when hazardous
waste was either placed on the site or leaked into the environment from a source on the
site, whether or not such owner or operator was the cause of the disposal or, indeed, even
had knowledge of it." (Crofton Ventures L.P. v. G&H Partnership (4th Cir. 2001) 258
F.3d 292, 297.)
Viewing the evidence in the light most favorable to the District, we conclude there
is a triable issue of fact regarding whether Sanmina (or someone at the site during
Sanmina's ownership or occupancy) disposed of hazardous substances at the site. The
evidence showed that Sanmina used a VOC solvent, 1,1,1-TCA, in its manufacturing
process and that the same solvent was found in the environment at the site. A trier of fact
could reasonably infer that Sanmina used substantial quantities of 1,1,1-TCA in at least
one degreaser at the site. Based on expert testimony that degreasers are common sources
of contamination, as well as the fact that 1,1,1-TCA contamination actually occurred at
the site, a trier of fact could reasonably conclude that Sanmina (or some other party)
disposed of 1,1,1-TCA during Sanmina's occupancy of the site. Based on the current
46
record, a triable issue of fact exists as to this element, and summary adjudication should
not have been granted. (See Aguilar, supra, 25 Cal.4th at p. 850.)13
In its order granting summary adjudication, the trial court focused on whether the
District raised a triable issue of material fact regarding a release of a hazardous substance
into soil or groundwater. Similarly, in its respondent's brief, Sanmina uses the terms
"disposal" and "release" interchangeably. Sanmina asserts, "[A]s the trial court correctly
noted, evidence of use does not equate to evidence of a release." (Italics added.) The
issue of whether Sanmina released a hazardous substance is irrelevant, for reasons we
have already discussed. The dispositive question here is whether there is a triable issue
of fact regarding whether Sanmina disposed of a hazardous substance. Sanmina does not
effectively address the reasonable inferences that flow from the evidence considered by
the trial court and how they might support the finding that hazardous substances were
disposed of during Sanmina's occupancy. As such, Sanmina's arguments are
unpersuasive. The court erred in granting summary adjudication in favor of Sanmina on
the District's HSAA claim.
6. Steelcase
Steelcase operated a furniture manufacturing facility at 1123 Warner Avenue in
Tustin, California from the early 1970's until 2003. In the trial court and in this appeal,
13 Given our conclusion, we need not address the parties' dispute over the relevance and significance of a wastewater discharge permit allowing Sanmina to dispose of VOC solvents into the Orange County sewer system. We also need not address the District's argument that the trial court erred by excluding wastewater sampling data showing the presence of VOC's in the discharged water. 47
Steelcase focuses on the following allegedly undisputed material facts: (1) the District
does not use water in the shallow aquifer; (2) drinking water wells are screened at depths
significantly below the shallow aquifer; (3) contaminants from the Steelcase site had not
reached or threatened to reach any drinking water well; and (4) contaminants from the
Steelcase site had not reached or threatened to reach a depth from which drinking water is
obtained.
Relying on these facts, Steelcase contends the District cannot establish causation
under the HSAA. Although the trial court denied Steelcase's motion for summary
adjudication on this ground, Steelcase reasserts its arguments on appeal as an alternate
ground on which to affirm the judgment in its favor. (See Code Civ. Proc., § 906.) We
are unpersuaded.14
We note initially that Steelcase has waived its arguments on appeal. " 'Appellate
briefs must provide argument and legal authority for the positions taken. "When an
appellant fails to raise a point, or asserts it but fails to support it with reasoned argument
and citations to authority, we treat the point as waived." ' [Citation.] 'We are not bound
to develop appellants' argument for them. [Citation.] The absence of cogent legal
argument or citation to authority allows this court to treat the contention as waived.' "
(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill); see
Schmidt, supra, 223 Cal.App.4th at p. 1509.) Steelcase's separate respondent's brief does
14 As we have noted, Steelcase later prevailed on this claim following a bench trial in which the court found the District could not bring suit under the HSAA. Because we have concluded the court's interpretation of the statute in this manner was erroneous (see part II.B., ante), we will consider Steelcase's causation argument. 48
not cite the HSAA, its liability provisions, its elements, or any authority interpreting it.
Steelcase simply references "causation" generically, as if no further explanation were
needed. This treatment is inadequate.
Even if Steelcase had not waived its arguments, we would find them unpersuasive.
Under the HSAA, a plaintiff may recover "response or corrective action costs" in an
indemnity action against a liable person. (Health & Saf. Code, § 25363, subd. (d).) To
recover its costs from Steelcase, the District must establish a causal connection between a
release or threatened release at Steelcase's site and the District's recoverable costs.
(Alcoa, supra, 12 Cal.App.5th at p. 306 ; Carson Harbor, supra, 270 F.3d at p. 870.)
Steelcase argues that the District cannot establish causation because a release of
contamination from the Steelcase site has not reached or threatened to reach any drinking
water well or aquifer at a depth where drinking water is obtained. Steelcase's argument
fails because it does not establish, as a matter of fact or law, that the District's recoverable
costs are so limited. For example, the District could potentially pursue recoverable costs
related to groundwater in the shallow aquifer, which is an environmental resource worth
protecting. Given the gap in Steelcase's logic, its evidence does not "preclude a
reasonable trier of fact from finding" in the District's favor on the element of HSAA
causation. (Kahn, supra, 31 Cal.4th at p. 1003.) Even assuming Steelcase had not
waived its argument, it has not shown it was entitled to summary adjudication of the
District's HSAA claim on this record. (See San Jose Const., supra, 155 Cal.App.4th at p.
1534.)
49
7. UCI
From 1981 through 1990, UCI manufactured printed circuit boards at a facility
located at 1800 Newport Circle in Santa Ana, California. UCI used 1,1,1-TCA as a
solvent for screen cleaning and tape residue removal. UCI obtained a permit to store
1,1,1-TCA in a 1,000-gallon aboveground tank. In 1988, UCI reported using
approximately 3,900 gallons of 1,1,1-TCA per year. UCI phased out its use of 1,1,1-
TCA in favor of other chemicals (including methyl ethyl ketone or MEK) from 1987 to
1990.
In 1979, prior to UCI's occupancy, a fire at the site caused a rupture in a 1,100-
gallon aboveground storage tank containing 1,1,1-TCA. This rupture caused a release of
1,1,1-TCA at the site.
Groundwater at the site is contaminated with 1,1-DCE and 1,4-dioxane. 1,1,1-
TCA breaks down into 1,1-DCE over time, and 1,4-dioxane was used to stabilize 1,1,1-
TCA. The presence of 1,1-DCE and 1,4-dioxane in groundwater indicates that 1,1,1-
TCA has been released at the site.
A UCI expert witness, Jeffrey Dagdigian, Ph.D, opined that the 1979 fire was "the
cause of release of VOCs located in the subsurface." Dagdigian observed that
groundwater testing in 1993 did not detect any 1,1,1-TCA, i.e., it had broken down
completely into 1,1-DCE and other constituents. Based on 1,1,1-TCA's half-life of 1.7
years, the release that caused groundwater contamination at the site could not have
occurred after 1979. Otherwise, 1,1,1-TCA would have remained detectable in
groundwater. Dagdigian estimated the mass of the historic 1,1,1-TCA release at 576
50
pounds or 73 gallons. He believed it was reasonable to conclude that the 1979 fire led to
the release of all 73 gallons of 1,1,1-TCA, after accounting for 1,1,1-TCA that dissipated
into the air or was captured by the site's sump and clarifier. Dagdigian also noted that
MEK had not been detected in groundwater. If UCI's procedures resulted in routine
releases of solvents, he would have expected MEK contamination in groundwater as well.
For their part, District witnesses could not identify any other VOC releases at the site
other than the 1979 fire.
In opposition to UCI's motion, the District submitted deposition testimony from a
former employee, Edward Stoll, that "some" drippage of 1,1,1-TCA solvent occurred
during the tape residue removal process. The drippage was rinsed "into the floor." A
UCI expert witness agreed that there is some minor spillage during printed circuit board
manufacturing. The boards from which tape was removed were rinsed with water. The
water carried a small amount of solvent to UCI's clarifier. From the clarifier, waste was
discharged into the public sewer. Another former employee, Jerry Paulk, testified that
the only pretreatment system in the clarifier was a pH adjustment. The District points to
a 1984 spill that occurred at the clarifier at the site, though the extent of the spill and the
chemicals involved is not part of the evidence. The District also provided evidence of
several violations of hazardous substance handling regulations issued to UCI, but none
referenced 1,1,1-TCA. Other evidence offered by the District, including an expert
declaration, was excluded by the trial court.
UCI argues that the court's order summarily adjudicating the District's HSAA
claim should be affirmed because the District cannot establish a causal nexus between
51
UCI's activities and groundwater contamination. But, as noted, the HSAA does not
require proof of a causal connection between UCI's activities and groundwater
contamination or the District's response costs. (Alcoa, supra, 12 Cal.App.5th at p. 306;
Kalamazoo River, supra, 228 F.3d at p. 655; Alcan Aluminum, supra, 964 F.2d at p. 265.)
The absence of such a connection therefore does not foreclose the District's HSAA claim
against UCI.15
UCI's contrary arguments are unpersuasive. We comprehensively examined the
requirement of causation under the HSAA in our recent Alcoa opinion. (Alcoa, supra, 12
Cal.App.5th at pp. 305-311.) We need not repeat that analysis here, but we will briefly
comment on certain authorities cited by UCI. In Boeing Co. v. Cascade Corp. (9th Cir.
2000) 207 F.3d 1177, 1185 (Boeing), the federal appellate court was confronted with a
situation it described as "causal overdetermination," i.e., where two defendants' actions
were each sufficient to bring about the harm. Boeing concluded that under CERCLA
both defendants in such a situation would be held to have caused the harm: "We
therefore conclude that in the special case of causal overdetermination, i.e., where either
polluter's conduct would have caused the same response cost to be incurred in the same
amount, and the conduct was of substantially equal blameworthiness, the proper
15 UCI claims the District may not advance this interpretation of the HSAA's causation requirement in this appeal because it did not make this argument in the trial court. But this appeal, and the District's arguments, raise pure questions of law and this matter has yet to be tried. To the extent the District forfeited its arguments by not advancing them in the trial court, we exercise our discretion to consider them. (See Francies v. Kapla (2005) 127 Cal.App.4th 1381, 1386.) 52
construction of the causation requirement in the statute is that both polluters should be
treated as having caused the response cost." (Ibid.)
In discussing CERCLA generally, Boeing remarked, "CERCLA provides that a
party that releases a hazardous substance is liable for another's response costs, but only if
its release caused the other party to incur those response costs . . . ." (Boeing, supra, 207
F.3d at p. 1182.) UCI's reliance on this comment is misplaced. It was made in passing,
without analysis, and was immediately followed by a quotation from CERCLA's liability
provisions governing current owners and operators. (Ibid.) And, because Boeing
considered only the special situation of causal overdetermination, it had no occasion to
consider whether and under what circumstances former operators who had only disposed
of hazardous materials could be liable. By contrast, "virtually every court that has
considered this question has held that a CERCLA plaintiff need not establish a direct
causal connection between the defendant's hazardous substances and the release or the
plaintiff's incurrence of response costs." (Alcan Aluminum, supra, 964 F.2d at p. 265.)
Carson Harbor, likewise cited by UCI, also does not bear on this issue. It merely
held that the terms "disposal" and "release" are not mutually exclusive, given their
overlapping definitions. (Carson Harbor, supra, 270 F.3d at pp. 881-882.) The fact that
two terms are not mutually exclusive does not mean that no distinction can be made
between them. UCI also cites Kalamazoo River Study Group v. Rockwell Internat. Corp.
(6th Cir. 1999) 171 F.3d 1065, 1068, which stated that "the plaintiff must establish a
causal connection between the defendant's release of hazardous substances and the
plaintiff's response costs incurred in cleaning them up." (Italics added.) The federal
53
appellate court did not undertake any analysis of the issue, so it is unpersuasive. And, in
any event, the same court considered and expressly rejected the position advanced by
UCI the next year. (Kalamazoo River, supra, 228 F.3d at p. 655.)
Taking a different tack, UCI points to the requirement that a person must have
"operated" the facility at issue in order to be liable. (42 U.S.C. § 9607(a)(2).) UCI
claims that a former operator can only be liable if it had the authority to control the cause
of the contamination at the time of a hazardous substance release, not merely a disposal.
In UCI's view, this requirement indirectly forces a plaintiff to show that a former operator
was responsible for a release which caused response costs. We disagree. As noted, the
United States Supreme Court has defined the operator of a facility broadly, without
regard to responsibility for a release: "So, under CERCLA, an operator is simply
someone who directs the workings of, manages, or conducts the affairs of a facility. To
sharpen the definition for purposes of CERCLA's concern with environmental
contamination, an operator must manage, direct, or conduct operations specifically
related to pollution, that is, operations having to do with the leakage or disposal of
hazardous waste, or decisions about compliance with environmental regulations."
(Bestfoods, supra, 524 U.S. at pp. 66-67.) The definition is not limited to operators who
actually caused pollution. (See Litgo, supra, 725 F.3d at p. 382; K.C.1986 L.P. v. Reade
16 Even if UCI had met its initial burden, the District's evidence showing that 1,1,1- TCA was retained in the clarifier and discharged into the public sewer (along with expert testimony stating that minor spillage occurs during printed circuit board manufacturing) would be sufficient to raise a triable issue of material fact regarding disposal under the HSAA. This evidence does not implicate the Stoll and Paulk deposition transcripts, which UCI contends are inadmissible hearsay. We therefore need not address UCI's contention regarding admissibility. (Compare Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142, 149 [testimony admissible] with Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1150 [testimony not admissible] and Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688, 692 [same].) A related issue is currently pending in the Supreme Court. (See Sweetwater Union High School Dist. v. Gilbane Building Co. (2016) 245 Cal.App.4th 19, review granted June 8, 2016, S233526 [Issues presented: "(1) Is testimony given in a criminal case by persons who are not parties in a subsequent civil action admissible in that action to oppose a special motion to strike? (2) Is such testimony subject to the conditions in Evidence Code section 1290 et seq. for receiving former testimony in evidence?"].) 56
Marotta sold the site at issue in 1972. In its motion for summary adjudication,
Marotta relied on discovery responses from the District stating that the District was
"unaware of any Cleanup and Abatement Order or other charge or citation issued to
Marotta concerning the site." Marotta argued this evidence showed that the District
could not establish that Marotta's activities at the site violated then-existing state or
federal laws. In opposition, the District submitted evidence that Marotta used TCE and
PCE in its manufacturing processes, that TCE and PCE contamination has been detected
in soil and groundwater at the site, and the contamination occurred sometime before
1992.17
The parties agree that Health and Safety Code section 25366, subdivision (a)
establishes an affirmative defense to liability under the HSAA. Marotta would bear the
17 The District argues it submitted evidence that the degreasing equipment used by Marotta was a typical source of contamination. In its brief, the District cites only its separate statement of disputed material facts, rather than the underlying evidence itself. This is improper. (Cal. Rules of Court, rule 8.204(a)(1)(C); Jackson, supra, 60 Cal.App.4th at p. 178, fn. 4.) The District also contends Marotta admitted certain facts, citing Marotta's filing in connection with a different summary adjudication motion. Such citation is improper and misleading. As far as we can discern, however, the District appears to be relying on California Code of Regulations, title 22, section 64481, which establishes disclosure requirements for drinking water consumer confidence reports. One of the disclosure requirements concerns the likely sources of contaminants in drinking water. (Cal. Code Regs., tit. 22, § 64481, subd. (d)(2)(I).) If contaminants are detected, and the likely source is not otherwise known, the report should identify the "typical" source identified in the regulations. (Ibid.) For TCE and PCE, the typical sources identified are degreasing activities. (Id., § 64481, app. 64481-A.) While degreasing activities may be typical sources when contamination occurs, we disagree with the District's conclusion that this regulation implies that degreasing activities commonly lead to contamination. We also disagree that evidence of contamination caused by other parties' degreasers, without more, would support a reasonable inference that Marotta's degreaser caused contamination as well. 57
burden of proof at trial on this defense. (See Ramirez v. Yosemite Water Co. (1999) 20
Cal.4th 785, 794-795; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454,
469.) In its motion for summary adjudication, Marotta had the initial burden of showing
that the undisputed facts support each element of the defense. (Dailey v. City of San
Diego (2013) 223 Cal.App.4th 237, 249.) It "must present evidence that would require a
reasonable trier of fact to find any underlying material fact more likely than not—
otherwise, [it] would not be entitled to judgment as a matter of law, but would have to
present his evidence to a trier of fact." (Aguilar, supra, 25 Cal.4th at p. 851.) If a
defendant fails to meet this initial burden, its motion should be denied regardless of the
plaintiff's evidentiary showing in opposition. (Id. at p. 850; see San Jose Const., supra,
155 Cal.App.4th at p. 1534; see also Teselle v. McLoughlin (2009) 173 Cal.App.4th 156,
169-170 (Teselle).)
Marotta and the District dispute the elements of the HSAA's nonretroactivity
defense. Marotta argues it satisfied its initial burden by showing that its ownership of the
property (and therefore any conduct that would violate the HSAA) ceased prior to 1982.
The District argues Marotta was also required to show that its conduct did not violate any
then-existing state and federal laws. We agree with the District.
The HSAA's nonretroactivity provision states that a defendant will not be liable
under the HSAA if (1) the alleged wrongful acts occurred before on or before January 1,
1982 and (2) the alleged wrongful acts did not violate any existing state or federal laws at
the time they occurred. (Health & Saf. Code, § 25366, subd. (a).) Unless both conditions
are satisfied, the defense cannot overcome a prima facie showing of HSAA liability.
58
Given the text of the statute, and the broadly remedial nature of the HSAA, it is
appropriate to place the burden on the otherwise-liable defendant to prove compliance
with then-existing environmental laws, e.g., through compliance records or the testimony
of knowledgeable individuals. Marotta is required to establish both elements to prevail
on this affirmative defense.
We conclude Marotta did not meet its initial burden on summary judgment to
establish that its alleged wrongful acts did not violate any existing state or federal laws.
As noted, Marotta's evidence on this element consisted solely of District admissions in
discovery that it had no evidence of any charges or citations for violations of
environmental laws. But a defendant's motion for summary adjudication based on an
affirmative defense may not be based on plaintiff's lack of evidence disproving the
applicability of the defense. (Consumer Cause, Inc. v. SmileCare, supra, 91 Cal.App.4th
at p. 473.) Instead, the defendant must offer evidence that, if credited, would require a
reasonable trier of fact to find in its favor on each element of the defense. (Aguilar,
supra, 25 Cal.4th at p. 851; Dailey v. City of San Diego, supra, 223 Cal.App.4th at p.
249.) Marotta did not offer such evidence. Its motion for summary adjudication should
have been denied.
III. OCWD Act
A. Recoverable Costs
The District contends the trial court erred by summarily adjudicating its cause of
action under section 8 of the OCWD Act in favor of defendants. That section empowers
the District to "conduct any investigations of the quality of the surface and groundwaters
59
within the district . . . to determine whether those waters are contaminated or polluted"
(OCWD Act, § 8, subd. (a)), to "perform any cleanup, abatement, or remedial
work . . . needed to prevent, abate, or contain any threatened or existing contamination of,
or pollution to, the surface or groundwaters of the district" (id., subd. (b)), and to seek
recovery of its reasonable costs from "the person causing or threatening to cause that
contamination or pollution" in a civil action (id., subd. (c)).
The OCWD Act, section 8, subdivision (c) therefore creates a private right of
action for cost recovery specific to the District: "If, pursuant to subdivision (b), the
contamination or pollution is cleaned up or contained, the effects thereof abated, or in the
case of threatened contamination or pollution, other necessary remedial action is taken,
the person causing or threatening to cause that contamination or pollution shall be liable
to the district to the extent of the reasonable costs actually incurred in cleaning up or
containing the contamination or pollution, abating the effects of the contamination or
pollution, or taking other remedial action. The amount of those costs, together with court
costs and reasonable attorneys' fees, shall be recoverable in a civil action by, and paid to,
the district." (Ibid.)
Defendants argue, here as in the trial court, that summary adjudication is proper
because the District has not incurred any recoverable costs under the OCWD Act, section
8, subdivision (c). Defendants characterize the District's incurred costs as wholly
"investigatory" and contend that investigatory costs are not encompassed within
recoverable remediation costs. Defendants point to the express inclusion of the term
"investigations" in section 8, subdivision (a), and the absence of that term in section 8,
60
subdivisions (b) and (c), which authorize and provide for cost recovery of cleanup,
abatement, and remedial work.
We addressed and rejected this unwarranted distinction in our recent Alcoa
opinion: "On de novo review, we conclude the trial court incorrectly restricted the scope
of recoverable costs under the OCWD Act. The issue is not whether the claimed costs
fall under the District's power under section 8, subdivision (a) and are therefore excluded.
It is whether the claimed costs fall under section 8, subdivisions (b) and (c) and are
therefore included. A given action, for example, might fall under both grants of power."
(Alcoa, supra, 12 Cal.App.5th at p. 346.) We concluded it was error to view the
subdivisions as mutually exclusive. (Ibid.) We have considered defendants' arguments
to the contrary but for the reasons more fully explained in Alcoa will adhere to our
interpretation of the OCWD Act in that appeal.
The "reasonable costs actually incurred in cleaning up or containing the
contamination or pollution, abating the effects of the contamination or pollution, or
taking other remedial action" are recoverable under the OCWD Act, without regard to
whether they could also be characterized as investigatory. (OCWD Act, § 8, subd. (c).)
"[A] remedial action involves much more than simply the physical cleanup or
containment process itself. It involves investigation, planning, design, development, and
documentation. Because these activities are part of remedial action, the costs of such
activities are recoverable." (Alcoa, supra, 12 Cal.App.5th at p. 346.) However, not every
activity that touches on environmental concerns can be characterized as remedial. As we
explained, "if a plaintiff conducts testing as part of its 'regular course of business,' and not
61
in response to contamination or threatened contamination, that could indicate that such
testing is not remedial action. [Citation.] Similarly, if a plaintiff drafts reports that have
'nothing to do with remedying threatened contamination,' that could indicate that the
reports are not part of a remedial action." (Id. at p. 348.)
In their motion for summary adjudication, defendants showed that the District had
not designed or constructed any remediation project in the South Basin; had not done any
cleanup work or treated any groundwater contamination there; and planned to continue
investigating the source and extent of groundwater contamination in the South Basin in
order to develop a remediation plan. In opposition, the District did not directly contest
these points. Instead, it offered, among other things, a declaration from its chief
hydrogeologist explaining that the District's efforts were part of the remediation process
and that those efforts were necessary if the District wanted to clean up contamination in
the South Basin effectively. The hydrogeologist noted that some "investigatory"
elements, such as groundwater monitoring wells installed by the District, would continue
to be used as part of any cleanup and treatment effort. Other claimed costs included
design and feasibility studies of various treatment options themselves.
On this record, defendants have not shown that all of the District's claimed
remediation costs are not recoverable as a matter of law. As we have explained, the fact
that the District's costs can be characterized as "investigatory" is not dispositive, which
was the primary argument advanced in the trial court and on appeal. And, because the
District's activities were undertaken in response to actual and threatened contamination
and pollution and at least some could reasonably be understood as necessary for any
62
future treatment project, a triable issue of fact exists regarding whether the District's costs
are remedial in nature and therefore recoverable. The court therefore erred by granting
defendants' motion for summary adjudication of the District's cause of action under the
OCWD Act. Except as to UCI, which we discuss in the next part, we express no opinion
regarding whether summary adjudication would be proper on a different record or on
different grounds or whether the District should ultimately prevail on this (or any other)
element of this cause of action were it to be tried.18
B. Causation: UCI
The OCWD Act allows the District to recover its reasonable costs from a person
who caused or threatened to cause the contamination or pollution at issue. (OCWD Act,
§ 8, subd. (c).) Unlike the HSAA, the OCWD Act largely incorporates the causal nexus
between a defendant's conduct and the resulting harm: "[T]he OCWD Act requires proof
18 At oral argument, defendants appeared to offer an additional reason why summary adjudication of the District's claim under the OCWD Act was proper. They argued that the District had not shown that "contamination or pollution [was] cleaned up or contained, the effects thereof abated, or in the case of threatened contamination or pollution, other necessary remedial action [was] taken," as required for cost recovery under the OCWD Act. (OCWD Act, § 8, subd. (c).) They attempted to distinguish our discussion of this element in Alcoa by pointing out that, unlike in Alcoa, the District had not offered any evidence that the hazardous substances in the South Basin had naturally attenuated, or "abated," such that this element was not satisfied. (See Alcoa, supra, 12 Cal.App.5th at pp. 349-350.) Defendants did not develop this argument in their briefing. They discussed the results of the District's actions only to support their argument that those actions were merely investigatory. Defendants' argument is therefore waived. (Ace American, supra, 121 Cal.App.4th at p. 1027, fn. 2.) And, even setting aside this waiver, we agree with the District that the defendants have not shown, based on the undisputed facts, that there is no "threatened contamination or pollution" that would support cost recovery for "other necessary remedial action" undertaken by the District, even in the absence of evidence that the effects of existing contamination or pollution have been abated. (See OCWD Act, § 8, subd. (c); Alcoa, supra, 12 Cal.App.5th at pp. 350-351.) 63
that a defendant itself caused or threatened to cause contamination or pollution for which
the District has incurred remediation costs." (Alcoa, supra, 12 Cal.App.5th at p. 342.)
UCI moved for summary adjudication of the District's claim under the OCWD
Act, among others, because the District could not establish causation. The trial court
agreed and granted summary adjudication of the District's OCWD Act claim on this
basis. On appeal, UCI argues this order provides an alternative basis on which to affirm
the judgment in its favor on this claim. The District contends the court's order was
erroneous. For reasons we will explain, we agree with UCI.
We have already summarized the evidence surrounding the UCI site in part II.C.7.,
ante. Based on our review of that evidence, we conclude UCI met its burden on
summary adjudication. UCI's evidence, if credited, would preclude a trier of fact from
concluding that UCI caused groundwater contamination. Dagdigian, UCI's expert,
opined that the 1979 fire was the cause of VOC contamination at the UCI site. Because
the District does not contend UCI was responsible for the 1979 fire, it cannot show UCI
caused the VOC contamination at issue in this litigation. The District criticizes
Dagdigian's expert opinion by pointing out his admission that 1,1,1-TCA's half-life could
be as low as 1.1 years or as high as 2.5 years. But the fact that other possibilities exist
does not call into question Dagdigian's conclusion that 1.7 years was the appropriate half-
life to use in his analysis of the UCI site. Absent some other evidence, it is speculation to
believe that using another half-life figure would have been reasonable under the
circumstances here.
64
We further conclude the District has not established a triable issue of fact whether
UCI caused groundwater contamination based on its evidence of UCI's manufacturing
processes. At most, the District has shown that UCI spilled some amount of 1,1,1-TCA
on the floor of its facility and discharged it into the sewer. The District submitted no
evidence, expert or otherwise, that would allow a trier of fact to infer based on this
evidence that UCI's actions caused or threatened to cause groundwater contamination.
The District argues that a reasonable inference of contamination by UCI can be based on
the (allegedly similar) circumstances of the 1979 fire, but any inferences based on that
fire would be speculative given the state of the evidence. While the 1979 fire
indisputably caused groundwater contamination, the same cannot be said of UCI's minor
spills based on the evidence the District presented. The District has not shown the trial
court erred by summarily adjudicating its claim under the OCWD Act based on
causation.19
IV. Negligence
A. Overview of Disputed Issues
Defendants challenged the District's negligence claim on the ground it was barred
by the applicable statute of limitations. Below, we will first address the legal issues
raised by defendant's challenge. For reasons we will explain, we conclude the theory of
"continuous accrual" applies to the District's negligence claim and provides the
framework for assessing defendants' arguments based on the statute of limitations. We
19 Given our conclusion, we again need not decide whether the deposition transcripts of former employees Stoll and Paulk were admissible. (See fn. 16, ante.) 65
next address defendants' factual showing to determine whether they are entitled to
summary adjudication on this ground, including the additional arguments made in GE
Aviation's separate respondent's brief. We conclude that, except for GE Aviation,
defendants have not shown they are entitled to summary adjudication of the District's
negligence claim on statute of limitations grounds on the current record.
As with the District's claim under the OCWD Act, UCI moved separately for
summary adjudication of the District's negligence claim on the ground the District could
not show causation. We conclude, for the same reasons as under the OCWD Act, that
UCI is entitled to summary adjudication of the District's negligence claim on this ground
as well.
B. Statute of Limitations
1. The Defendants Jointly
The District contends the trial court erred by summarily adjudicating its
negligence claim against all defendants based on the statute of limitations. In a series of
motions, defendants offered evidence that the District knew or should have known about
contamination at each of their sites more than three years before the District filed its
complaint. Defendants argued that the District's actual or constructive knowledge of such
contamination triggered the statute of limitations, which they claim expired before the
District filed suit. In the trial court, the District primarily argued that its knowledge was
insufficient to trigger the statute of limitations. On appeal, the District has abandoned
this argument. Instead, the District relies on the theory of "continuous accrual" to defend
its negligence claim. It contends summary adjudication was erroneous because its
66
complaint alleged a series of negligent acts and, regardless of the District's first
knowledge of contamination, the defendants have not met their burden of showing that
their last negligent act occurred outside the statute of limitations. (See Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192 (Aryeh).) For reasons we will
explain, we agree with the District.
Defendants claim, as an initial matter, that the District has forfeited its appellate
arguments by failing to raise them below. Defendants rely on NBCUniversal Media, LLC
v. Superior Court (2014) 225 Cal.App.4th 1222 (NBCUniversal). In that case, the real
parties in interest in a writ proceeding sought to raise arguments in opposition to
summary judgment that they had not raised in the trial court. (Id. at p. 1236.) The new
argument in NBCUniversal mirrors the new argument here, that the theory of continuous
accrual precluded a defense based on the statute of limitations. (Ibid.) The appellate
court concluded that the real parties had forfeited their continuous accrual argument by
not making it below. (Id. at p. 1237.) The court supported its conclusion by observing
that "resolution of the argument requires application of equitable principles to a factual
record that [real parties] have failed to develop." (Ibid.) The court therefore declined to
exercise its discretion to consider the new continuous accrual argument. (Ibid.)
We do not find NBCUniversal persuasive under the circumstances here. Even
assuming the District forfeited its argument by not making it below (a claim the District
disputes), the District's argument presents a purely legal question (the sufficiency of
defendants' initial evidentiary showing) that does not depend on factual development in
the trial court. As in NBCUniversal, defendants claim the District's argument requires
67
application of equitable principles. But defendants do not identify any such alleged
equitable principles, they do not discuss any equitable principles in their discussion of the
merits of the District's continuous accrual argument, and they do not identify any factual
development in the trial court that they would have pursued had the District made its
argument below. The defendants have not identified any prejudice from considering the
District's continuous accrual argument, and they do not assert that the District's failure to
make the argument in the trial court was for purposes of delay or the result of some other
improper motive. Under these circumstances, even assuming the forfeiture rule
otherwise applies, we will exercise our discretion and consider the District's argument on
its merits. (See Francies v. Kapla, supra, 127 Cal.App.4th at p. 1386.)
In Aryeh, the Supreme Court explained the legal theory of continuous accrual:
"Generally speaking, continuous accrual applies whenever there is a continuing or
recurring obligation: 'When an obligation or liability arises on a recurring basis, a cause
of action accrues each time a wrongful act occurs, triggering a new limitations period.'
[Citation.] Because each new breach of such an obligation provides all the elements of a
claim—wrongdoing, harm, and causation [citation]—each may be treated as an
independently actionable wrong with its own time limit for recovery." (Aryeh, supra, 55
Cal.4th at p. 1199.) A plaintiff may pursue actionable wrongs for which the statute of
limitations has not yet expired, even if earlier wrongs would be barred. (Id. at pp. 1199-
1200.) "[U]nder the theory of continuous accrual, a series of wrongs or injuries may be
viewed as each triggering its own limitations period, such that a suit for relief may be
partially time-barred as to older events but timely as to those within the applicable
68
limitations period." (Id. at p. 1192.) A plaintiff may allege a single cause of action
covering the entire series of actionable wrongs: "[N]othing in the theory of continuous
accrual requires every severable act to be pleaded as a distinct cause of action[.]" (Id. at
p. 1201, fn. 8.)
In its operative complaint, the District alleged that "[d]efendants had a duty to use
due care in the handling, control, disposal, release, remediation, and use of hazardous
substances at their respective sites." Defendants breached these duties because they
"negligently, carelessly, and recklessly failed to: (1) prevent spills, leaks, discharges and
releases of VOC's and perchlorate through the use of appropriate technology; (2) install
and maintain systems to prevent spills, leaks, discharges and releases, and facilitate
prompt detection and containment of any spills, leaks, discharges and releases; (3)
monitor and discover spills, leaks, discharges and releases as soon as possible; (4) warn
those who maybe injured as a result of spills, leaks, discharges and releases; and (5) clean
up, contain and abate spills, leaks, discharges and releases to prevent harm and injury to
plaintiff and others." In addition, "[d]efendants undertook to retain consultants to
conduct environmental investigations and cleanups, thereby affirmatively undertaking the
duty to detect and remediate spills, leaks, discharges and releases of VOC's and
perchlorate. Defendants, however, negligently failed to properly discharge these duties."
The District's allegations in support of its negligence causation of action identify a
series of activities, spanning the initial handling and use of hazardous substances to their
disposal, release, and remediation. Although couched in past tense, the complaint alleges
69
a series of negligent acts.20 Under the doctrine of continuous accrual, if any of these
negligent acts occurred within the statute of limitations, the cause of action is not barred.
(Aryeh, supra, 55 Cal.4th at pp. 1199-1200.)
Defendants point out that Aryeh involved a claim under the Unfair Competition
Law (Bus. & Prof. Code, § 17200 et seq.). (Aryeh, supra, 55 Cal.4th at p. 1189.) They
argue that the theory of continuous accrual does not apply to negligence claims, but they
do not provide any reasoning supporting their argument. We see no reason why the
theory of continuous accrual should not apply to negligence claims. (See Nestle v. City of
Santa Monica (1972) 6 Cal.3d 920, 940 ["Such a rule has a long history in nuisance
actions [citation] and by analogy may apply to certain factual situations causing personal
injury as well as property damage for negligence and zoning violations."].) We will
therefore apply it here.
Defendants bore the burden on summary judgment to show a "complete defense"
to the District's negligence claim based on the statute of limitations. (Code Civ. Proc.,
§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) Because the District's
complaint pled its negligence claim as a series of separate and distinct negligent acts
under the theory of continuous accrual, defendants were required to show that the
20 The parties make much of the tense of the complaint's allegations. The District emphasizes allegations made in the present or present progressive tense ("[d]efendants . . . [are] causing and threatening to cause contamination and pollution"), and defendants emphasize past tense allegations. We need not definitely resolve the scope of the District's allegations in the appeal. Even focusing exclusively on the past tense allegations, they allege a series of negligent acts (albeit in the past). We disagree with defendants' contention that these past tense allegations describe a single negligent act for each defendant. 70
District's claim, including each relevant negligent act, was completely time-barred. " 'If a
plaintiff pleads several theories, the defendant has the burden of demonstrating there are
no material facts requiring trial on any of them. "The moving defendant whose
declarations omit facts as to any such theory . . . permits that portion of the complaint to
be unchallenged." ' " (Teselle, supra, 173 Cal.App.4th at p. 163.) This principle applies
equally to facts pled in a complaint that would refute an affirmative defense or prove an
exception to such a defense. (See, e.g., Anderson v. Fitness Internat., LLC (2016) 4
Cal.App.5th 867, 880; Varshock v. Department of Forestry & Fire Protection (2011) 194
Cal.App.4th 635, 651; Bacon v. Southern California Edison Co. (1997) 53 Cal.App.4th
854, 858.)
Defendants did not meet their initial burden of production. Defendants did not
present evidence, for example, that a negligence claim based on improper remediation
would be time-barred. Because a negligence claim based on such a theory remains viable
notwithstanding defendants' evidence, their motions for summary adjudication of the
District's negligence claims based on the statute of limitations should have been denied.
(Aguilar, supra, 25 Cal.4th at p. 850; Teselle, supra, 173 Cal.App.4th at pp. 169-170.)
Defendants argue that the District has alleged "a single harm occurring solely in
the past," i.e., "contamination of groundwater." But such contamination need not be a
single, indivisible harm. Separate negligent acts could reasonably lead to more or
different contamination, contamination with different effects, or contamination requiring
different remediation efforts. For example, a defendant's negligent release of hazardous
substances could cause some groundwater contamination. A defendant's later negligent
71
remediation effort could cause additional groundwater contamination, in different areas,
with different effects. Even though both negligent acts caused groundwater
contamination, the contamination is not a single harm.21
Defendants also argue that the District's allegations against certain specific
defendants should override more general allegations against all defendants collectively.
It is well-settled that "specific allegations control general pleadings," but this rule applies
only where there is a factual inconsistency between the allegations. (Gentry v. eBay, Inc.
(2002) 99 Cal.App.4th 816, 827.) The past-tense allegations against specific defendants
and the past-tense allegations against all defendants supporting the District's negligence
claim are not inconsistent. There is no basis to disregard the latter allegations. The
District's general allegations provided the applicable framework the defendants must
follow in order to obtain summary adjudication.
In a footnote, defendants claim in passing that they provided evidence showing
that certain defendants (Emerson, Soco West, Brenntag, and UNISYS) "ceased any
operations that could have [led] to any alleged releases long before" that statute of
limitations period. Although the evidence cited by defendants shows that certain
activities ceased outside the limitations period, defendants do not establish that the
21 We further disagree with defendants that the District's negligence claim is based solely on the idea "the persistence of contaminants in groundwater indefinitely tolls the statute of limitations." The District's claim is instead based on the idea that defendants are responsible for negligent acts within the statute of limitations. Defendants' reliance on CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525 is unpersuasive. In that case, the evidence showed that the harm from contamination was "complete[]" and "constant" outside the statute of limitations period. (Id. at p. 1535.) Defendants here make no such showing. 72
District's claim is based solely on those activities. Nor do defendants cite evidence that
they did not engage in other activities alleged by the District in support of its negligence
claim during the statute of limitations period. Emerson cites a 1999 site closure letter in
which the RWQCB states, "On the condition that the information provided to us was
accurate and representative of existing groundwater conditions at the site, no further
investigation or remediation of groundwater is required." This letter does not address any
later activities at the site. Emerson does not cite any evidence (e.g., a declaration from a
responsible employee) that it has not undertaken any activities that could have caused
groundwater contamination within the statute of limitations period. The discrete pieces
of evidence cited by the other defendants at issue suffer from the same deficiencies. The
1991 letter cited by Soco West and Brenntag states that the site at issue "ceased
processing hazardous waste" and "all containment areas have been decontaminated." But
the letter does not address other negligent acts alleged by the District. Indeed, the letter
mentions that hazardous waste remains at the site and soil and groundwater investigations
are ongoing. UNISYS relies on deposition testimony showing that it sold the company
that operated the site at issue in 1986. Again, this evidence does not address the various
negligent acts alleged by the District other than direct operation of the site.
Given the breadth of the District's complaint, it was incumbent upon defendants in
their motions for summary adjudication to address each allegation that could reasonably
form the basis of the District's negligence cause of action, including defendants' potential
negligent remediation activities. Having failed to do so, defendants did not meet their
initial burden to show the District's negligence claim had no merit. On a different factual
73
record, including discovery clarifying the scope of the District's allegations, summary
adjudication might have been warranted. But on the current record the court's order
granting summary adjudication must be reversed. Our discussion of this issue does not
preclude defendants from raising the issue of statute of limitations again, of course, in an
appropriate manner and with additional facts regarding, for example, defendants' lack of
involvement in remediation and other activities forming the basis of the District's
negligence claim.
2. GE Aviation
In its separate respondent's brief, GE Aviation offers a variation of the foregoing
factual argument. It points to the following material fact contained in its motion, which it
contends is undisputed: "There is no record evidence of any chlorinated solvent
contamination, as defined by the solvents placed at issue by the District, to soil or
groundwater at the 2040 Site as a result of any operations at the 2040 Site conducted
from September 1, 1997 to the present." This fact sweeps more broadly than the
evidence cited by Emerson, Soco West, Brenntag, and UNISYS cited above. The fact, if
true, would cover any operations at the site in question throughout the statute of
limitations period. And, because the District's negligence allegations are limited to each
defendant's activities at its respective site, it would cover all of the District's negligence
allegations. We therefore conclude that the fact, if true, would establish a complete
defense to the District's negligence allegation based on the statute of limitations.
In this appeal, the District addresses GE Aviation's evidentiary showing in a single
sentence: "In addition, the District submitted evidence showing that . . . GE Aviation
74
continued releasing contaminants through 2011." This sentence is supported by a citation
solely to the District's separate statement in opposition to GE Aviation's allegedly
undisputed fact. As we have noted, such a citation is improper and insufficient. (Cal.
Rules of Court, rule 8.204(a)(1)(C); Jackson, supra, 60 Cal.App.4th at p. 178, fn. 4.)
Despite GE Aviation's separate respondent's brief addressing this claim, the District
offers no response in its reply brief.
As the appellant, the District bears the burden of showing error in the judgment.
(Reyes v. Kosha, supra, 65 Cal.App.4th at p. 466, fn. 6.) Here, the District's general
assertions do not apply to GE Aviation, and the District makes no attempt to engage in
the facts surrounding GE Aviation's site. Its only acknowledgement that GE Aviation's
factual showing merits attention is accompanied by a citation that violates the Rules of
Court. The District has not made a serious effort to advance its argument on appeal.22
Because the District has failed to support its assertion with reasoning or authority, we
conclude the District has forfeited its claim of error as to GE Aviation. (Schmidt, supra,
223 Cal.App.4th at p. 1509; Cahill, supra, 194 Cal.App.4th at p. 956.) We will therefore
affirm the judgment in favor of GE Aviation as to the District's negligence claim.
C. Causation: UCI
UCI separately moved for summary adjudication of the District's negligence
claim, among others, on the ground that the District could not establish causation. The
22 Although the District addresses the facts surrounding the GE Aviation site in the context of its HSAA claim, that claim was the subject of a different summary adjudication motion and involves different legal standards. It does not apply to the District's negligence claim, and the District does not attempt to incorporate it here. 75
trial court granted UCI's motion and expressly relied on this ground in summarily
adjudicating the District's negligence claim in favor of UCI. The District contends the
court's order was erroneous, whereas UCI relies on this ground as an alternative basis on
which to affirm the judgment in its favor on the District's negligence claim. We agree
with UCI.
We have already discussed the evidence surrounding the UCI site, including
causation, in connection with the District's claims under the HSAA and the OCWD Act.
(See parts II.C.7. and III.B., ante.) With respect to the OCWD Act, we concluded UCI
met its burden on summary adjudication to show no triable issue of fact on the issue of
whether UCI caused groundwater contamination and the District did not raised any
triable issues in opposition. The legal standards of causation under the OCWD Act and
the common law claim of negligence are identical in the context of the parties'
contentions in this appeal. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239-1240;
Alcoa, supra, 12 Cal.App.5th at pp. 342.) That discussion therefore applies equally here.
The District does not offer any additional arguments in opposition. We will therefore
affirm the trial court's judgment in favor of UCI and against the District on its negligence
claim.
V. Trespass and Nuisance
A. The Causes of Action
The District alleged causes of action for common law trespass and nuisance
against all defendants. The trial court granted defendants' motions for summary
adjudication of these causes of action. As discussed above, the court primarily found that
76
the District did not have sufficient property or other interests in the South Basin to
support claims for trespass or nuisance. For reasons we will explain, we conclude the
District has raised a triable issue of fact regarding its property interests in groundwater in
the South Basin, but those interests are insufficient to sustain a trespass cause of action
under the circumstances here. The District's potential property interests are sufficient,
however, to sustain its nuisance cause of action.
Because both causes of action require some form of property interest (at least in
part), we will consider them together in this section. We begin with an overview of each
cause of action and will then discuss the District's potential property interests in
groundwater in the South Basin.
"Trespass is an unlawful interference with possession of property." (Staples v.
Hoefke (1987) 189 Cal.App.3d 1397, 1406; see Wilson v. Interlake Steel Co. (1982) 32
Cal.3d 229, 233 (Wilson).) "California has adhered firmly to the view that '[t]he cause of
action for trespass is designed to protect possessory—not necessarily ownership—
interests in land from unlawful interference. [Citations.]' " (Capogeannis v. Superior
Court (1993) 12 Cal.App.4th 668, 674; see Williams v. Goodwin (1974) 41 Cal.App.3d
496, 507-508 (Williams).) "[I]t is not necessary that the plaintiff own the property. All
plaintiff needed to do was to show a possessory right superior to the right of the
trespassers." (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246 (Posey).)23
23 The District contends that "trespass on the case" is a viable tort in California that does not require a property interest. Although the District did not raise this argument in the trial court, it contends the judgment on its trespass claim should be reversed because 77
Nuisances are defined by statute: "Anything 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 . . . is a nuisance." (Civ.
Code, § 3479.) Nuisances can be either public or private. "A public nuisance is one
which affects at the same time an entire community or neighborhood, or any considerable
number of persons, although the extent of the annoyance or damage inflicted upon
individuals may be unequal." (Id., § 3480.) Any other nuisance is a private nuisance.
(Id., § 3481.)
it can prevail under the standards applicable to a cause of action for trespass on the case. Even assuming the District's complaint can be read to plead a cause of action for trespass on the case, and even exercising our discretion to consider the District's new argument for the first time on appeal, we disagree. To the extent trespass on the case remains a viable tort in California, it does not apply to the circumstances here. Historically, trespass on the case was a common law form of action that encompassed a wide variety of causes of action that we now consider separate. Chief among them was negligence. (See Rest.3d Torts, § 6, com. c, p. 61.) For example, an early Supreme Court opinion on negligence relies on a treatise discussing trespass on the case for the applicable standards. (Gerke v. California Steam Navigation Co. (1858) 9 Cal. 251, 256, citing 1 Cowen & Barbour, A Treatise on the Civil Jurisdiction of Justices of the Peace in the State of New York (3d ed. 1844) p. 384.) California no longer adheres to the common law forms of action. (Code Civ. Proc., § 307; see Rogers v. Duhart (1893) 97 Cal. 500, 504.) And, to the extent trespass on the case survived as a counterpart to the modern cause of action for trespass (one that would allow recovery of additional damages), that distinction has been abolished. All such actions are now known as trespass. (Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301, 1305.) The District relies on a single modern case, Lucky Auto Supply v. Turner (1966) 244 Cal.App.2d 872 (Lucky Auto), to support its argument. In that case, the court held that a plaintiff with a nonexclusive license to a parking lot could bring a cause of action under the theory of trespass on the case for " ' "any invasion or disturbance of the terms of the license whether by the licensor or by third parties." ' " (Id. at p. 881.) To the extent Lucky Auto is correct that a license is sufficient to support a separate cause of action for trespass on the case, the District does not allege that it has a license or any analogous interest here. We disagree with the District that Lucky Auto stands for the broad proposition that any perceived wrong may be remedied in an action for trespass on the case. The District has numerous other remedies, including under the OCWD Act. (See part III., ante.) 78
A private plaintiff may bring a cause of action for public nuisance if the nuisance
is "specially injurious" to the plaintiff. (Civ. Code, § 3493.) Although a plaintiff's
property interests may be relevant to the issue of special injury, property interests are not
required to bring a cause of action for public nuisance. (See, e.g., In re Firearm Cases
(2005) 126 Cal.App.4th 959, 987, fn. 21.) By contrast, a plaintiff bringing a cause of
action for private nuisance must show harm to a property interest. (Institoris v. City of
Los Angeles (1989) 210 Cal.App.3d 10, 20 (Institoris).) The property interest need not
rise to the level of fee simple ownership. (See, e.g., Moylan v. Dykes (1986) 181
Cal.App.3d 561, 574 [interference with the use of an easement]; Stoiber v. Honeychuck
(1980) 101 Cal.App.3d 903, 920 [interference with use of a leasehold].)24
B. The District's Property Interests
Because each cause of action involves some type of property interest, either as a
necessary or potentially sufficient element, we will examine the nature of the District's
alleged property interests relevant to this appeal. We do not by this discussion imply that
24 Although the District is a public agency, the parties agree that a public agency may bring a nuisance cause of action on its own behalf to the same extent as a private plaintiff, and under theories of both private and public nuisance, where the public agency's own property rights are affected by the nuisance. The statutory basis for such an action is found in the first sentence of Code of Civil Procedure section 731: "An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code, and by the judgment in that action the nuisance may be enjoined or abated as well as damages recovered therefor." (See County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 313; Orange County Water Dist. v. The Arnold Engineering Co. (2011) 196 Cal.App.4th 1110, 1125, fn. 4.) 79
the property interests implicated by each cause of action are identical. As we will explain
in the next part, they are not.
The District has alleged that it has property interests in groundwater in the South
Basin. It acknowledges that it does not have property interests in the overlying land. It
instead alleges property interests in or related to the groundwater itself. As we will
discuss in greater detail below, water in its natural state cannot be owned by any private
person. (State of California v. Superior Court (2000) 78 Cal.App.4th 1019, 1025 (State
of California).) Property interests in water instead take the form of a usufruct, i.e., a right
to use. " 'It is laid down by our law writers, that the right of property in water is
usufructuary, and consists not so much in the fluid itself as the advantage of its use.'
[Citation.] Hence, the cases do not speak of the ownership of water, but only of the right
to its use." (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 441
(Audubon Society).)
"Courts typically classify water rights in an underground basin as overlying,
appropriative, or prescriptive. [Citation.] An overlying right, 'analogous to that of the
riparian owner in a surface stream, is the owner's right to take water from the ground
underneath for use on his land within the basin or watershed; it is based on the ownership
of the land and is appurtenant thereto.' " (City of Barstow v. Mojave Water Agency
(2000) 23 Cal.4th 1224, 1240, fn. omitted (City of Barstow).) Appropriative and
prescriptive rights are derived from actual appropriation or use of water. (City of Santa
Maria v. Adam (2012) 211 Cal.App.4th 266, 278-279 (City of Santa Maria).)
Appropriative rights stem from lawful use; prescriptive rights from unlawful use. (Ibid.;
80
City of Barstow, at p. 1241; see generally Audubon Society, supra, 33 Cal.3d at pp. 441-
442.)
The District's alleged property interests in groundwater fall into three categories:
(1) property interests based on a delegation of rights from the State of California, (2)
property interests based on the District's regulatory powers, and (3) property interests
based on its recharge activities in the Orange County groundwater basin. We will
address each in turn below.
For reasons we will explain, we conclude that the District has not raised a triable
issue of material fact that it has any relevant property interests based on any delegation of
rights from the State of California or the District's regulatory powers. We agree with the
District, however, that on the current record defendants have not established, for purposes
of summary adjudication, that the District has no relevant property interests based on its
recharge activities in the Orange County groundwater basin. Specifically, the current
record leaves open the possibility that the District enjoys appropriative water rights to
groundwater in the basin. We will address the consequences of that conclusion for the
District's causes of action for trespass and nuisance in part V.C., post.
1. Property Interests Based on State Delegation of Rights
The District contends the State of California has delegated its rights over
groundwater in the South Basin to the District. It relies on a provision of the OCWD Act,
which states in relevant part as follows: "The right-of-way is hereby given, dedicated and
set apart to locate, construct and maintain any of the works of the district over and
through any of the lands which are now, or may become the property of this state and
81
also there is given, dedicated and set apart, for the uses and purposes aforesaid, all waters
and water rights belonging to this state within the district." (OCWD Act, § 39.)
Defendants disagree with the District's broad interpretation. They argue that this
sentence, read in context, relates only to flood control. For purposes of this appeal, we
will assume without deciding that the District enjoys whatever water rights the State may
have in groundwater in the Orange County groundwater basin under section 39 of the
OCWD Act. But we conclude, for reasons we will explain, that these rights are
insufficient to maintain causes of action for trespass or private nuisance.
"All water within the State is the property of the people of the State, but the right
to the use of water may be acquired by appropriation in the manner provided by law."
(Wat. Code, § 102.) On its face, this statute would appear to confirm the State's property
interest in groundwater in the South Basin. But it has not been read so broadly. As the
Supreme Court has explained, "The state's interest in the public groundwater and surface
waters is to make water policy that preserves and regulates it. The state does not have the
right to possess and use the water to the exclusion of others and has only such
riparian[25], overlying, or appropriative rights as it may obtain by law; its interest is
therefore not an ownership interest, but rather a nonproprietary, regulatory one." (City of
Barstow, supra, 23 Cal.4th at p. 1237, fn. 7.) The statute's reference to "the people of the
25 Riparian rights are water rights enjoyed by landowners whose property abuts surface water. (People v. Shirokow (1980) 26 Cal.3d 301, 307 (Shirokow); see generally Pleasant Valley Canal Co. v. Borror (1998) 61 Cal.App.4th 742, 751-754.) Because this appeal involves groundwater, and not surface water, riparian rights are not at issue.
82
State," rather than the State itself, confirms the State's interest is an abstract one, not a
proprietary one. (Wat. Code, § 102; see State of California, supra, 78 Cal.App.4th at p.
1026.)26
In State of California, our colleagues in Division Two of this court undertook a
comprehensive examination of the State's interests in groundwater. They concluded that
the State "does not 'own' the water of the state in its natural conditions . . . . [T]he state
does not have the right to 'possess and use [the water] to the exclusion of others' and has
only such riparian or appropriative rights as it may otherwise obtain by law." (State of
California, supra, 78 Cal.App.4th at p. 1027, fn. omitted.) "[T]he State's 'ownership'
under Water Code section 102 confers no powers of possession or use upon it." (Id. at p.
1028.) Instead, "Water Code section 102 is an example of what the United States
Supreme Court has called a ' " 'fiction expressive in legal shorthand of the importance to
its people that a State have power to preserve and regulate the exploitation of an
important resource.' ". . .' [Citation.] . . . [Citation.] Water Code section 102 thus
26 Water Code section 102 therefore differs from the statute confirming the State's interest in land underlying the State's navigable waters and tidal areas. The latter statute provides as follows: "The State is the owner of all land below tide water, and below ordinary high-water mark, bordering upon tide water within the State; of all land below the water of a navigable lake or stream; of all property lawfully appropriated by it to its own use; of all property dedicated to the State; and of all property of which there is no other owner." (Civ. Code, § 670, italics added.) "The State is considered to hold 'title as trustee to such lands and waterways . . . .' (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 434 [italics added].) Thus, the use of the term 'The State' in section 670 appropriately conveys the sense that the State, as a governmental entity, owns the tidelands and waterways." (State of California, supra, 78 Cal.App.4th at p. 1025.) Authorities considering the State's property interests in tidelands and navigable waterways therefore do not directly apply to the State's interests in surface and ground waters. 83
expresses the preeminent right of the people of the State to make water policy and control
water usage; it may perhaps also have been intended as a preemptive strike against any
private effort to claim 'ownership' in a proprietary sense. But the State's power under the
Water Code is the power to control and regulate use; such a power is distinct from the
concept of 'ownership' as used in the Civil Code and in common usage." (Id. at p. 1030,
fn. omitted.) In sum, "[t]he State 'owns' the groundwater in a regulatory, supervisory
sense, but it does not own it in a possessory, proprietary sense." (Id. at p. 1033.)
The conclusions of State of California were adopted by the Supreme Court in City
of Barstow, with citation, in the passage quoted above. (City of Barstow, supra, 23
Cal.4th at p. 1237, fn. 7, citing State of California, supra, 78 Cal.App.4th at p. 1027.)
The District's critiques of State of California are therefore foreclosed, and we find State
of California's reasoning persuasive in any event.27
A recent opinion relied on State of California to reverse a defendant's conviction
for petty theft of water from a flowing stream, reasoning that neither the State nor any
private person had a possessory interest in such water. (People v. Davis (2016) 3
Cal.App.5th 708, 710-711, 714 (Davis).) Davis explained, "State of California makes
clear that the state in its role as public trustee does not have any proprietary ownership of
public waters, beyond any riparian or appropriative rights it might acquire as a property
owner." (Id. at p. 714.) "A characterization of a state as a 'trustee' is merely a legal
27 We similarly concur with State of California's interpretation of the Supreme Court's opinion in AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, and we reject the District's reliance on that opinion for the same reasons. (See State of California, supra, 78 Cal.App.4th at pp. 1028-1029.) 84
fiction of the 19th century expressing the state's police power over its resources." (Ibid.)
It concluded, "While the People may prosecute defendant for transgressing the state's
regulatory police power [citation], they do not provide any authority to counter the above
stated principle that their ability to regulate his behavior does not create any possessory
interest in the water that constitutes larceny." (Id. at p. 715.)
While City of Barstow, State of California, and Davis do not consider causes of
action for trespass or private nuisance, their conclusions regarding the State's interests in
groundwater establish that those causes of action are untenable here. Like larceny,
trespass requires the invasion of a superior possessory interest in property. (Compare
Davis, supra, 3 Cal.App.5th at p. 713 with Posey, supra, 229 Cal.App.3d at p. 1246.)
Because the State does not have a general possessory interest in groundwater, the District
cannot support a cause of action for trespass based on the State's interest. Similarly, a
cause of action for private nuisance requires harm to a property interest. (Institoris,
supra, 210 Cal.App.3d at p. 20.) The State, however, has no general propriety (i.e.,
property) interest in groundwater; its interest is regulatory and supervisory. (City of
Barstow, supra, 23 Cal.4th at p. 1237, fn. 7; State of California, supra, 78 Cal.App.4th at
p. 1034.) Such a regulatory and supervisory interest is not a property interest that can
support a cause of action for private nuisance either.
The District points out that an earlier opinion, Selma Pressure Treating Co. v.
Osmose Wood Preserving Co. (1990) 221 Cal.App.3d 1601, 1618 (Selma), held that the
State's interest in groundwater may be a sufficient property interest to support damages in
a public nuisance cause of action. Selma was an appeal at the pleading stage, following
85
the sustaining of several demurrers. (Id. at p. 1606.) The reviewing court considered
whether a cause of action for equitable indemnity could rest on a potential claim for
damages by the State in an action for public nuisance. (Id. at pp. 1611, 1619.) After
reviewing Water Code section 102 and subsequent case law, Selma observed, "[B]oth
statute and case law suggest the state has a legally cognizable property interest in the
waters of the state." (Id. at p. 1616.) And, as alternate theories, Selma identified
conventional water rights (e.g., riparian or appropriative) and the State's parens patriae
role in protecting public resources. (Id. at p. 1618.) Selma concluded that the complaint
sufficiently stated a cause of action for equitable indemnity based on a damages claim by
the State. (Id. at p. 1619.)
The reasoning in Selma has been undermined by the more recent opinions
discussed above, most importantly the Supreme Court's statement—contrary to Selma—
that the State's interest in groundwater is "a nonproprietary, regulatory one." (City of
Barstow, supra, 23 Cal.4th at p. 1237, fn. 7.) State of California criticized the reasoning
of Selma and the authorities on which it relies, and for the same reasons we agree Selma
is unpersuasive. (See State of California, supra, 78 Cal.App.4th at p. 1029, fn. 15.)
Selma's conclusion that the State's parens patriae role confers a "legally cognizable
interest" is inapplicable here. Whatever the meaning of the OCWD Act, its delegation
was limited at most to "waters and water rights belonging to this state within the district."
(OCWD Act, § 39.) The State's parens patriae role, and its powers and duties flowing
from that role, are not "waters and water rights" within the meaning of section 39 of the
OCWD Act. The District cannot assert parens patriae rights to support its nuisance
86
claim. And, as for conventional water rights, the District has made no allegation that the
State has such rights within its territory that the District now enjoys. The State's
delegation of such rights is therefore inapplicable here as well. (We will consider the
District's own conventional water rights in part V.B.3. post.)28
The District also relies on Niles Sand & Gravel Co. v. Alameda County Water
Dist. (1974) 37 Cal.App.3d 924 (Niles), an opinion involving a county water district that
sought damages and an injunction to stop a landowner from wasting water. Niles does
not aid the District. Although the exact nature of the claims asserted is unclear, the water
district sought to enforce the correlative rights doctrine, which limits the ability of
landowners to use water for nonbeneficial purposes. (Id. at p. 933.) The doctrine
imposes an obligation, or servitude, on all overlying landowners in a groundwater basin
"to refrain from discharging more than their reasonable share of the underground water
28 The District claims its property interests in groundwater were recognized in Orange County Water Dist. v. The Arnold Engineering Co., supra, 196 Cal.App.4th 1110, an opinion in a similar though unrelated action by the District against alleged groundwater polluters. That opinion considered whether the District was asserting claims on behalf of the public, which could have called into question the legitimacy of its contingency fee arrangement with its attorneys. (Id. at p. 1123.) The reviewing court, viewing the complaint as a whole, concluded that the District was suing to protect its own interests in groundwater and not those of the general public: "Indeed, regardless whether the Water District's interest in the groundwater is classified as regulatory, proprietary, or usufructuary, the Water District is entitled to recover monetary damages for the investigation and remediation costs it incurred and will incur in the future." (Id. at pp. 1125-1126, fn. omitted.) The court relied primarily on the District's claims under the OCWD Act and the HSAA. (196 Cal.App.4th, at p. 1126.) It mentioned negligence and trespass only in passing, and it called any argument based on public nuisance a "red herring." (Id. at pp. 1125-1126.) It did not engage in a thorough analysis of the District's property interests in groundwater. We therefore find the District's reliance on this authority unpersuasive. 87
therein." (Id. at p. 934.) Niles held that this servitude was public "because the right to
enforce it is held by a public agency [i.e., the water district] as trustee for all surface
owners and suppliers of water (i.e., the 'public') in the Niles Basin." (Id. at p. 935.) The
water district's ability to enforce this public servitude derived not from its property
interests but from its police powers as a public agency. (Id. at pp. 936-937.) Here, by
contrast, the District does not seek to exercise any police power. Instead, it asserts
common law claims available to public and private plaintiffs alike. Niles is inapposite.29
For the foregoing reasons, we conclude that the State's delegation of rights in
section 39 of the OCWD Act does not confer any property interests in groundwater in the
South Basin to the District. The District therefore cannot support a claim for trespass or
private nuisance on this basis.
2. Property Interests Based on the District's Regulatory Powers
The District contends its regulatory powers over the groundwater in the South
Basin confer a property interest in the groundwater sufficient to support its trespass and
nuisance claims. It points to its power to require registration of water producers (OCWD
Act, §§ 24, 35), its power to require installation of a water meter to track the amount of
water extracted (id., § 35), its power to impose fees based on that amount (id., §§ 23, 27,
29 In a footnote, Niles states it was "undisputed that the district owns the ground water in the Niles Basin as trustee for all the overlying surface owners located within its boundaries." (Niles, supra, 37 Cal.App.3d at p. 929, fn. 5.) Niles did not examine that proposition, and, as noted, the water district did not rely on a property interest to bring its claims against the landowner. (Id. at pp. 936-937.) To the extent this footnote articulates a general legal principle regarding ownership of groundwater, we disagree for the reasons we have already stated. 88
29), its power to enjoin unauthorized water producers from extracting water (id., § 32),
and its power to regulate the amount of water extracted through fees to encourage
responsible water extraction (id., § 31.5). No person other than the District may store
water in the Orange County groundwater basin absent agreement by the District, and the
District may regulate this storage even when authorized. (Id., § 2.1, subd. (a).) In the
District's view, these powers taken together confer on the District the right to control
access to groundwater in the Orange County groundwater basin, including both inflows
and outflows. The District views the result of these powers as akin to a property interest.
We disagree that the District's regulatory powers over groundwater confer a
property interest. As we have discussed above with respect to the State, the power to
regulate and supervise is not the same as ownership or other interest in property. (See
City of Barstow, supra, 23 Cal.4th at p. 1237, fn. 7; State of California, supra, 78
Cal.App.4th at p. 1034.) The fact that the District may regulate access to groundwater,
for example, does not mean that the District owns the groundwater. The District has
cited no authority for the proposition that its regulatory powers confer a property interest,
and we are aware of none. The District's argument is unpersuasive.30
30 The District also references the OCWD Act, sections 2 and 8. Section 2, subdivision (9), gives the District the power to bring actions "to prevent interference with water or water rights used or useful to lands within the district, or diminution of the quantity or pollution or contamination of the water supply of the district, . . . or to prevent any interference with the water or water rights used or useful to the district which may engager or damage the inhabitants, lands, or use of water in the district . . . ." This section confers the power to bring litigation; it does not confer any property interests in groundwater. The District has not asserted a stand-alone claim based on section 2 of the OCWD Act, so we need not decide whether it confers any right of action on the District 89
3. Property Interests Based on the District's Recharge Activities
The District contends that its efforts to recharge the groundwater in the Orange
County groundwater basin confer property interests in the groundwater itself, in the form
of water rights. As explained above, the District acquires water from various sources and
discharges it (or "spreads" it) at District facilities in Orange County. The process
replenishes groundwater in the Orange County groundwater basin. It causes groundwater
levels to rise throughout the basin, including in the South Basin, because the entire basin
is hydrologically connected. The recharged groundwater is effectively stored in the basin
until water producers extract it. The District itself does not use or extract groundwater
from the basin.31
In this appeal, the District claims it enjoys usufructuary rights to groundwater in
the South Basin, but it does not specify with any particularity the type of usufructuary
rights (overlying, appropriative, or prescriptive) at issue. Instead, the District argues that
its recharge activities store water in the Orange County groundwater basin, that its
storage of water is a beneficial use (and allows for additional beneficial uses by others),
and that the District thereby has usufructuary rights to groundwater in the basin,
separate from generally applicable laws. The District has asserted a claim under section 8, which we discuss separately. (See part III., ante.) But Section 8 also does not confer any property interests in groundwater on the District.
31 In its opening brief, the District relied on evidence concerning its recharge activities that the trial court excluded. We have already explained that the District forfeited any claims of error as to such exclusion by not raising them until its reply brief. (See fn. 6, ante.) The essential facts regarding the District's recharge activities were admitted, however, so the District's broader contention remains viable on appeal. 90
including in the South Basin. Based on the District's argument, we can conclude the
District does not assert overlying or prescriptive rights to groundwater. We will therefore
examine the District's potential appropriative rights.
"The appropriation doctrine confers upon one who actually diverts and uses water
the right to do so provided that the water is used for reasonable and beneficial uses and is
surplus to that used by riparians or earlier appropriators." (United States v. State Water
Resources Control Bd. (1986) 182 Cal.App.3d 82, 101.) "To constitute an appropriation,
three elements must coexist, 'the intent to take, accompanied by some open, physical
demonstration of the intent, and for some valuable use' [citation]." (Fullerton v. State
Water Resources Control Bd. (1979) 90 Cal.App.3d 590, 598, italics omitted (Fullerton);
see California Trout, Inc. v. State Water Resources Control Bd. (1979) 90 Cal.App.3d
816, 820.)
It is undisputed that the District does not itself extract or "actual[ly] divert"
groundwater from the Orange County groundwater basin. By definition, therefore, the
District does not appropriate groundwater in the South Basin. Absent evidence of
appropriation, the District generally cannot claim appropriative rights. (See City of
Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 925 ["The right of an appropriator
depends upon an actual taking of water."]; Crane v. Stevinson (1936) 5 Cal.2d 387, 398;
City of Santa Maria, supra, 211 Cal.App.4th at p. 278.)32
32 Because the District does not appropriate water from the South Basin, the parties' dispute over whether storage of groundwater is a beneficial use is irrelevant. The 91
The District argues that it enjoys an exception to this general rule based on its
importation or recharge activities, which deposit water from various sources into the
Orange County groundwater basin. The District's argument is based on an appropriator's
right to reclaim or re-appropriate water it has imported into a river or groundwater basin
(See City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199, 260 (City of Los
Angeles II); City of Los Angeles v. City of Glendale (1943) 23 Cal.2d 68, 76 (City of Los
Angeles I).) For reasons we will explain, and based on the current record, we conclude
defendants have not offered undisputed facts sufficient to rebut the District's claim.
By importing water and recharging the Orange County groundwater basin, the
District loses its property interest in the imported water itself. (Stevens v. Oakdale
Irrigation Dist. (1939) 13 Cal.2d 343, 350.) But the District may retain an equivalent
right to reclaim or reappropriate water from the basin. "Water which has been
appropriated may be turned into the channel of another stream, mingled with its water,
and then reclaimed . . . ." (Wat. Code, § 7075.) "The rule codified by this statute applies
as well to the addition and withdrawal of water in an underground basin." (City of Los
Angeles II, supra, 14 Cal.3d at p. 260; see City of Los Angeles I, supra, 23 Cal.2d at pp.
76-77.) The rule "allow[s] an appropriator to retain an interest in appropriated water that
the appropriator brings from one stream or basin and adds to another." (City of Santa
Maria, supra, 211 Cal.App.4th at p. 302.)
District's appropriative rights to the water sources from which it obtains water for recharge—which it then uses, beneficially or not, for storage—are not at issue. 92
This rule is intended to encourage the use of natural watercourses and basins for
efficient transportation and storage of water. (City of Los Angeles I, supra, 23 Cal.2d at
pp. 76-77.) As such, the rule applies most often where the addition and withdrawal occur
as part of a plan to use the natural watercourse or basin for transportation and storage,
i.e., "where the recapture of the water by the person bringing it from [water source] is a
part of his original project, and the foreign water was from the beginning turned by him
into [the watercourse or underground basin] not simply to get rid of a discharge, but for
the express purpose of taking it out again below." (Wiel, Mingling of Waters (1915) 29
Harv. L.Rev. 137, 147, cited by City of Los Angeles I, supra, 23 Cal.2d at p. 78; see 62
Cal.Jur.3d (2013) Water, § 258, pp. 323-324.)
Crucially, the rule applies only where the water importer intends to reappropriate
the imported water: "Such water is not abandoned where there is an intent to recapture
it." (Barton Land & Water Co. v. Crafton Water Co. (1915) 171 Cal. 89, 94, italics
added; see 62 Cal.Jur.3d, supra, Water, § 593, pp. 729-730.) In explaining its landmark
holdings on this subject, the Supreme Court emphasized this intent requirement: "One
basis for the holding was the trial court's finding that before commencing the importation
of Owens water, plaintiff had formed an intention to recapture the return waters used for
irrigation in the San Fernando Valley whenever such return waters were needed for its
municipal purposes and the use of its inhabitants, and that the Los Angeles Aqueduct had
been planned and located to facilitate the availability and recapture of such return waters.
Under these circumstances, plaintiff retained its prior right to the return waters wherever
they might appear." (City of Los Angeles II, supra, 14 Cal.3d at p. 257; see id. at pp. 259-
93
260.) Under certain circumstances, abandonment may also be avoided where the water
importer sells or transfers its right to re-appropriate to another person. (See Stevinson
Water Dist. v. Roduner (1950) 36 Cal.2d 264, 267-268 [enforcing agreement to transfer
right to reappropriate imported water]; see also Richardson v. McNulty (1864) 24 Cal.
339, 344-346 [distinguishing the concepts of transfer and abandonment in the context of a
mining claim].)
This issue, the District's intent to reappropriate, was not a focus of the summary
adjudication proceedings in the trial court. We requested supplemental briefing from the
parties regarding whether we could conclude, on the current record, that the undisputed
facts showed the District did not have sufficient intent to recapture to invoke the rule
discussed above and therefore did not enjoy any appropriative water rights in the South
Basin. (See Blackwell v. Vasilas (2016) 244 Cal.App.4th 160, 167 ["We must affirm the
trial court's ruling on any correct legal theory, so long as the parties had an opportunity to
address it in either the trial or appellate court."]; Schmidt, supra, 223 Cal.App.4th at
p. 1498.)
Here, as discussed above, the District does not extract (or reappropriate) any water
from the Orange County groundwater basin. Nor does it appear based on the current
record that it intends to extract any such water. Instead, replenishment of the
groundwater basin is, in and of itself, the purpose for which the District engages in
groundwater recharge. Other water producers, not the District, extract and appropriate
basin water for their own purposes. The District points out that water producers pay fees
to the District based on the amount of water they extract from the basin, but based on the
94
current record these fees appear to be regulatory, not transactional, in nature. It does not
appear that the producers are purchasing water or water rights from the District.
However, as the District persuasively argues in its supplemental briefing,
defendants did not raise the issue of intent in their motions for summary adjudication or
separate statements in support thereof. The District contends it would have offered
additional evidence of its intent in the form of testimony from District employees and
evidence of transactions, contracts, or other arrangements between the District and water
producers relating to the disposition of water or water rights.
Because defendants did not raise the issue of intent in their motions, we conclude
the District was not required, nor did it have an adequate opportunity, to develop the
factual record and raise triable issues of fact relating to the issue of intent to reappropriate
groundwater following its recharge activities. Due process and fundamental fairness
require us to refrain from deciding this issue against the District in the absence of such an
opportunity. (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142,
152, fn. 9 ["Accordingly, although we have serious doubts whether such triable issues
exist in this case, we leave the issue for another case and another day."]; Folberg v. Clara
We therefore conclude, in this appeal and on the current record only, that
defendants have not shown the District does not enjoy appropriative water rights in the
South Basin based on its recharge activities. We will next consider whether these
appropriative rights are a sufficient basis on which to allege claims for trespass or
nuisance under the circumstances here.
95
C. Appropriative Water Rights and the District's Claims
1. Trespass
Trespass, as we have discussed, protects against the unlawful interference with
possession of property. (Wilson, supra, 32 Cal.3d at p. 233; Staples, supra, 189
Cal.App.3d at p. 1406.) Although appropriative water rights have been described as
"possessory property right[s]" (Fullerton, supra, 90 Cal.App.3d at p. 599), the trespass
cause of action in the real property context has generally been applied to protect
possessory property rights in land (Wilson, at p. 233; McLeod v. Fox West Coast Theatres
Corp. (1937) 10 Cal.2d 383, 387; Donahue Schriber Realty Group, Inc. v. Nu Creation
Outreach (2014) 232 Cal.App.4th 1171, 1178; 5 Witkin, Summary of Cal. Law (10th ed.
2005) Torts, §§ 693-694). The possession required to maintain a trespass cause of action
is most clearly seen in the context of land: "Actual possession is usually evidenced by
occupation, by substantial enclosure, by cultivation or by appropriate use according to the
particular locality and quality of the property." (Williams, supra, 41 Cal.App.3d at p.
508.)
Contamination of subsurface soil has been held to interfere with a landowner's
possessory interest in its land. (See, e.g., Starrh & Starrh Cotton Growers v. Aera
Energy LLC (2007) 153 Cal.App.4th 583, 592; Cassinos v. Union Oil Co. (1993) 14
Cal.App.4th 1770, 1778 (Cassinos).) " 'The essence of the cause of action for trespass is
an "unauthorized entry" onto the land of another.' " (Cassinos, at p. 1778.) Thus,
"causing subsurface migration of fluids into a mineral estate without consent constitutes a
trespass." (Ibid.)
96
Here, property interests in land are not at issue. As noted, the District does not
own any property in the South Basin. The District's trespass claim must be based, if at
all, on the appropriative water rights discussed above. The District has not cited any
authority where contamination of water was held to be a trespass against a water right,
and we are aware of none. It therefore appears to be an issue of first impression in
California.
The Restatement Second of Torts emphasizes that a trespass claim based on water
contamination must have a relationship to land: "The pollution of water may be the result
of an act constituting a trespass, as in the case of a foreign substance deposited in the
water while it is on the land of the plaintiff or deposited upstream and then brought to the
land by the stream." (Rest.2d Torts, § 849, com. c.) It classifies harm caused by
contamination or pollution of the water itself as a form of nuisance. (Id., § 849, com. e.)
The parties have cited only one case in which interference with a water right was
held to be a common law trespass. (See Fall River Valley Irr. Dist. v. Mt. Shasta Power
Corp. (1927) 202 Cal. 56 (Fall River).) In Fall River, our Supreme Court considered
competing claims to the water flows of the Fall River. (Id. at p. 58.) The plaintiff
contended it had the right, under permits issued by the State of California, to appropriate
a certain amount of Fall River water flows. (Ibid.) The defendant denied the validity of
the permits and contended it held a riparian right, based on its ownership of abutting
lands, to all water naturally flowing in the Fall River. (Ibid.) In rejecting the plaintiff's
contention, the Supreme Court held that "a mere appropriator, until he obtains title by
prescription, is, as against the right of a riparian owner, a trespasser." (Id. at p. 70.) " 'As
97
to a nonriparian owner the riparian owner is under no duty to share the waters of the
creek and the slightest use by such nonriparian owner diminishes to some extent the flow
of the stream.' " (Id. at p. 71.)
Although the rights of riparian owners have subsequently been limited by an
amendment to our State Constitution, Fall River's characterization of unauthorized water
users as trespassers remains valid. (Orange Cnty. Water Dist. v. City of Riverside (1959)
173 Cal.App.2d 137, 166.) And the principle that the unauthorized diversion or use of
water may be a trespass is codified by statute and has been applied in a number of
authorities. (Wat. Code, § 1052, subd. (a); see, e.g., People v. Shirokow, supra, 26 Cal.3d
at p. 304; Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229
Cal.App.4th 879, 895-896.) But neither Fall River nor that statute support a cause of
action for trespass under the circumstances here. The District has not been deprived, or
dispossessed, of any quantity of water to which it is entitled. Its water rights also do not
depend on land ownership, as did the riparian rights claimed in Fall River. As such,
these authorities have little relevance to the District's claim.33
33 The District's reliance on Niles, supra, 37 Cal.App.3d 924, is unpersuasive for the reasons we have already discussed above. Niles did not involve a trespass claim; the lawsuit was instead a product of the plaintiff's police power as a public agency. (Id. at pp. 936-937.) The District also cites an opinion from New York's highest court for the proposition that an unreasonable use of water may constitute a trespass. (See Forbell v. New York (1900) 164 N.Y. 522.) But the District misreads Forbell. In that case, the plaintiff was a landowner who was deprived of his natural supply of underground water by the large wells and waterworks constructed by the defendant, a neighboring landowner. (Id. at p. 524.) The court held that the defendant's activities were unreasonable: "But to fit [the neighboring land] up with wells and pumps of such pervasive and potential reach that from their base the defendant can tap the water stored 98
The alleged trespass here consists of contamination of groundwater in the South
Basin, some of which has been extracted by a well operated by the water producer
IRWD. Water in its natural state, before it is appropriated or otherwise captured, cannot
be owned or possessed by any private person. (State of California, supra, 78 Cal.App.4th
at p. 1025; see Davis, supra, 3 Cal.App.5th at p. 714.) As such, its contamination,
without additional facts, cannot constitute a trespass. The additional facts here consist of
the District's potential appropriative water rights throughout the Orange County
groundwater basin based on its recharge activities. These appropriative rights are merely
usufructuary, i.e., they confer the right to use water. They do not confer a right to possess
any specific corpus of water. (Audubon Society, supra, 33 Cal.3d at p. 441.) The
District's appropriative rights, based on its recharge activities, do not have a sufficient
nexus with the alleged contaminated water in the South Basin to establish a possessory
property interest that can support a cause of action for trespass.34 Even accepting that
in the plaintiff's land, and in all the region thereabout, and lead it to his own land, and by merchandising it prevent its return, is, however reasonable it may appear to the defendant and its customers, unreasonable as to the plaintiff and the others whose lands are thus clandestinely sapped, and their value impaired." (Id. at p. 526.) Analogizing the defendant's activities to an uncontrolled explosion, the court affirmed the trial court's finding that defendant had committed a trespass by applying force to plaintiff's land and thereby impairing its value. (Ibid.) Like Fall River, Forbell has no application here. The District does not assert any impairment of its interest in land, nor does the District allege it has been dispossessed of any water to which it was entitled. Forbell does not support a cause of action for trespass under the circumstances here.
34 The District also alleges that its recharge activities prevent saltwater intrusion from the Pacific Ocean into groundwater. We disagree that this additional benefit has any significance for the District's trespass and nuisance claims. In particular, we disagree that this benefit can be analogized to a physical fence around a plot of land that would be 99
appropriative water rights are possessory in some sense, it is clear that the District's rights
do not confer any meaningful right of possession on the any corpus of contaminated
water in the South Basin. Nor do the District's activities show that it possesses any water
in the South Basin. (See Williams, supra, 41 Cal.App.3d at p. 508.) The District's
trespass claim, based on some future exercise of appropriative rights that could result in
the extraction of contaminated water, is wholly speculative and cannot be supported on
the undisputed facts here.35
For the foregoing reasons, even accepting that the District has appropriative water
rights in groundwater in the Orange County basin, the District does not have a possessory
property right sufficient to support a claim for trespass on the facts here. Summary
adjudication of that claim against the District was therefore appropriate.
2. Nuisance
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 . . . ." (Civ. Code, § 3479.) "The
basic concept underlying the law of nuisances is articulated in the ancient maxim sic
utere tuo ut alienum non laedas, that is, so use your own as not to injure another's
evidence of possession. (Cf. Williams, supra, 41 Cal.App.3d at p. 508 [evidence of an enclosure of land is "evidence tending to show possession" in a trespass cause of action].) We also disagree that the District's regulatory powers confer any right of possession for reasons we have discussed in part V.B.2., ante.
35 We need not consider whether a trespass claim would be viable if the District were extracting or capturing water in the South Basin that was contaminated. 100
property." (Lussier v. San Fernando Valley Water Dist. (1988) 206 Cal.App.3d 92, 100.)
"More specifically an action for a private nuisance is designed to redress a substantial and
unreasonable invasion of one's interest in the free use and enjoyment of one's property."
(Ibid., fn. omitted.)
As noted, a cause of action for nuisance under a theory of private nuisance
requires a plaintiff to show inference with the use or enjoyment of a property interest.
Unlike for trespass, however, interference with a possessory property interest is not
required: " '[A]ny interest sufficient to be dignified as a property right' will support an
action based on a private nuisance . . . ." (Venuto v. Owens-Corning Fiberglas Corp.
(1971) 22 Cal.App.3d 116, 125 (Venuto).) Nor is a connection to land a generally
necessary element. (See Institoris, supra, 210 Cal.App.3d at p. 20 ["[A] private nuisance
will support recovery not simply for a disturbance of land, but also for interference with
any interest sufficient to be dignified as a property right."].)
Defendants argue the District did not have any relevant property interests in the
South Basin because it did not use any groundwater there. We disagree. As we have
explained above, the District may have appropriative water rights based on its recharge
activities. Appropriative water rights are property rights, and they are therefore sufficient
to support a claim of private nuisance. Moreover, although the undisputed facts show
that the District does not use its appropriative water rights to extract or produce water, we
conclude defendants have not shown there are no triable issues of material fact regarding
other uses of those rights or the District's enjoyment of them. Defendants are not entitled
101
to summary adjudication of the District's nuisance claim based on a theory of private
nuisance.
A property interest sufficient to support a cause of action for private nuisance is
generally sufficient to support a cause of action for public nuisance as well. (Venuto,
supra, 22 Cal.App.3d at pp. 124-125.) Given our conclusion that the District has a
property interest sufficient to support a nuisance cause of action, we need not consider
whether the District could assert a cause of action even in the absence of that property
interest, i.e., based solely on its special injury. (Birke v. Oakwood Worldwide (2009) 169
Cal.App.4th 1540, 1551 ["[W]hen 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."]; Venuto, at pp. 124-125.) We therefore need not consider whether the
District could maintain a cause of action for nuisance based solely on a special injury
unrelated to property. (See In re Firearm Cases, supra, 126 Cal.App.4th at p. 987, fn.
21.)
The trial court identified several additional grounds supporting its order grounding
summary adjudication of this cause of action, including the District's inability to show a
substantial and unreasonable harm sufficient to support a nuisance and Gallade's showing
of overlying water rights in the South Basin. The District claims error in each of these
grounds; defendants do not respond. We agree with the District that these grounds
cannot support summary adjudication. The evidence of widespread VOC contamination
in groundwater raises a triable issue of material fact regarding the issue of substantial and
unreasonable harm. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105; Monks
102
v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 303.) And Gallade's
overlying water rights do not excuse its alleged creation of a nuisance.
For the foregoing reasons, the trial court erred by granting defendants' motions for
summary adjudication of the District's cause of action for nuisance. With the exception
of UCI, we will reverse the judgments as to the District's nuisance claim.36
VI. Declaratory Relief
The trial court rejected the District's declaratory relief cause of action, either
through summary adjudication, judgment on the pleadings, or following trial, based on
the District's inability to maintain any other, coercive causes of action. The District
contends that the judgment as to its cause of action for declaratory relief should be
reversed if the judgments as to any of its other causes of action is reversed. Defendants
do not address this contention, except to argue that the judgments as to the other causes
of action should be affirmed.
36 UCI obtained summary adjudication of the District's nuisance claim on the alternate ground of causation. The District does not offer any additional claims of error with respect to this cause of action that we have not already discussed with respect to its causes of action against UCI under the OCWD Act and for negligence. (See parts III.B. and IV.B., ante.) The District's contentions remain unpersuasive, so we will affirm the judgment against the District on its nuisance cause of action as to UCI on the alternate ground of causation. Ricoh's contention that the judgment as to it should be affirmed on the alternate ground of causation is unpersuasive as well. The court did not summarily adjudicate the District's nuisance cause of action against Ricoh on site-specific causation grounds, and Ricoh has offered no argument why it should have. (See part II.B.4., ante.) Steelcase's contention that the trial court should have granted summary adjudication of its nuisance claim is unpersuasive for the same reasons we have already discussed. (See part II.B.6., ante.) 103
We agree with the District. The District's cause of action for declaratory relief
incorporates the allegations of its other causes of action and requests a declaration of the
parties' respective financial obligations stemming from the same facts. Because the
District may maintain at least one other cause of action against each defendant, it may
also maintain its declaratory relief cause of action. (See Southern Counties Gas Co. v.
Ventura Pipeline Constr. Co. (1971) 19 Cal.App.3d 372, 381.) Declaratory relief may be
sought in addition to other, coercive remedies. (Code Civ. Proc., § 1062.) In light of our
conclusion, we need not address the parties' other, subsidiary arguments regarding
declaratory relief.
DISPOSITION
The judgments involving Beatrice, Bell, BorgWarner, DRSS, Emerson, Gallade,
GE, ICI, Marotta, Ricoh, SABIC, Sanmina, and UNISYS are affirmed in part as to the
District's cause of action for trespass and reversed in part as to the District's causes of
action under the OCWD Act, the HSAA, and for negligence, nuisance, and declaratory
relief.
The judgment involving GE Aviation is affirmed in part as to the District's causes
of action for negligence and trespass and reversed in part as to the District's causes of
action under the OCWD Act, the HSAA, and for nuisance and declaratory relief.
The judgment involving UCI is affirmed in part as to the District's causes of action
under the OCWD Act and for negligence, trespass, and nuisance and reversed in part as
to the District's causes of action under the HSAA and for declaratory relief.
104
The joint judgment involving Accurate Circuit, Brenntag, Dyer, Embee, ITT, Soco
West, and Steelcase is affirmed in part as to the District's cause of action for trespass and
reversed in part as to the District's causes of action under the OCWD Act, the HSAA, and
for negligence, nuisance and declaratory relief.
In the interests of justice, the parties shall bear their own costs on appeal.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
105
AI Brief
AI-generated · verify before citing
Holding. The court held that the District may bring suit under the HSAA and recover certain investigatory costs under the OCWD Act, but that its potential groundwater rights are insufficient to maintain a trespass claim. Additionally, the court ruled that the theory of continuous accrual applies to the negligence claim and that triable issues of fact exist regarding the nuisance claim for most defendants.
Issues
Does the HSAA allow the District to bring suit for contribution or indemnity?
Are the District's investigatory costs recoverable under the OCWD Act?
Does the theory of continuous accrual apply to the District's negligence cause of action?
Does the District have sufficient property rights in groundwater to maintain a trespass claim?
Disposition. Affirmed in part; reversed in part and remanded.
Quotations verified verbatim against the opinion
“we confirm that the HSAA allows the District to bring suit under the circumstances here”
“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.”