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PRICE v. USN

December 3, 1992

GLORIA PRICE, et al., Plaintiffs,
v.
UNITED STATES NAVY, et al., Defendants. AND RELATED COUNTER-ACTIONS



The opinion of the court was delivered by: IRMA E. GONZALEZ

 The above-entitled matter came before the court for trial without a jury on October 8, 9, 14, 15, 16, 20, 21, 22 and 23, 1992. John H. Reaves, Esq. appeared on behalf of plaintiffs. David M. Thompson, Esq. and Beth L. Levine, Esq. appeared on behalf of defendant, United States Navy. *fn1" Shawn F. Kelly, Esq. appeared on behalf of defendant, Michael Moses, and defendant, Harry Moses, appeared in propria persona. Having considered the testimony and evidence, the Court makes the following findings of fact and conclusions of law.

 This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 9613(b) and 28 U.S.C. § 1331. Venue is proper in that the incident that gave rise to this action occurred within the Southern District of California.

 Plaintiffs Gloria Price and Elizabeth Jean Bolton ("Jean Bolton") seek relief in count one of the first amended complaint under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675. *fn2"

 This Court dismissed count two which sought relief under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992(k) on October 22, 1992. *fn3" On that same date the Court dismissed the third, fourth and tenth claims against the Moses wherein plaintiffs sought damages for nuisance, negligence and medical monitoring under CERCLA, respectively.

 In the mid-1930s, the United States Navy took paints (containing lead, copper and zinc), used asbestos gaskets and insulation to a junkyard in Paradise Hills in San Diego, California. The junkyard included what is now 6021, 6025, 6035 and 6045 Edgewater Street, San Diego, California, four contiguous properties. At some point, the property was converted into a plant nursery and in July, 1958, the property was purchased by Harry and Marguerite Moses.

 At the time that Harry Moses purchased the property, he observed old potted plants and pieces of pottery which led him to believe that a nursery had previously been located there. He also discovered some other foreign objects in the soil such as burnt material and pieces of debris. From this, Mr. Moses assumed that garbage had been burned on the site.

 In 1960, Harry Moses built the homes located at 6021 and 6025 Edgewater. *fn4" The only preparation of the lots which Harry Moses performed before actual construction of the homes began, was to remove a tree and potted plants. Mr. Moses hired a contractor to actually build the homes although Mr. Moses personally obtained the building permits. The gas and plumbing permits, however, were obtained by a plumber.

 The plumbing permits for 6021 and 6025 Edgewater indicate that "Mike" or "Michael" Moses was the owner of these properties. (Exhibits 41 and 42). However, the Court finds this evidence wholly unreliable. The plumber completed the information contained on the gas and plumbing permits and the information was never verified by county officials. No other admissible evidence was presented at trial to show that Michael Moses had any ownership rights in the 6025 and 6021 Edgewater properties. Moreover, there is no evidence that Michael Moses was a partner with his father in the construction of the two homes. Therefore, plaintiffs have failed to meet their burden of proof as to Michael Moses under CERCLA.

 On occasion, Harry Moses observed construction in progress at 6025 Edgewater. A trench was dug so that concrete footings could be placed in the soil around the perimeter of the slab at 6025 Edgewater. The soil excavated for the trench was placed out onto the lot and later put back into the trench. The footings had to extend farther down than one foot so as to meet solid ground. Harry Moses understood that there was fill material down to approximately three feet from the surface of the lot at 6025 Edgewater, but as stated before, did not know the fill may have been a junkyard at one time.

 Although Mr. Moses' testimony about the persons he hired as the contractor and subcontractors to build the homes contradicts some of what he may have said in his deposition, the Court finds that these inconsistencies go to matters that are not material. In addition, it is not surprising that an 86-year old man cannot remember some details about the construction of the homes and his observations of the site that occurred more than 30 years ago.

 In June, 1962, Mr. and Mrs. Pablo Gonzalez and Mr. and Mrs. Moses entered into an agreement for sale of the property located at 6025 Edgewater. Soon, thereafter, the Gonzalez family moved into the home. When Mr. Gonzalez died in 1977, his daughter, Jean Bolton's name was added to the 6025 Edgewater deed. After Mrs. Gonzalez died in August, 1988, plaintiff Bolton became the sole owner of the home. Plaintiff Bolton intended to keep the home among the Gonzalez siblings. However, in September, 1988, the Gonzalez siblings agreed that their sister, Gloria Price, should be able to purchase the home for a total of $ 80,000.00. Plaintiff Price obtained a loan for that amount and paid her siblings (plaintiff Bolton and two brothers) $ 20,000.00 each. Title, however, has always remained in the name of plaintiff Bolton.

 At the time that plaintiff Price purchased the home at 6025 Edgewater, her daughter, Bethany, and granddaughter, Melissa, her brother, Stephen Gonzalez and another brother, William Gonzalez, his wife and three children were living in the home. Plaintiff Price never lived full time at 6025 Edgewater before January, 1990. She would spend nights at plaintiff Bolton's home and baby-sit during the days for her granddaughter, Melissa at the 6025 Edgewater residence.

 In October, 1988, plaintiff Price hired KDI Sylvan Pools, Inc. ("Sylvan") to construct a pool in the back yard of 6025 Edgewater. Excavation for the pool resulted in piles of dirt being placed by Sylvan in the back, side and front yards of that residence and in the neighbors' yard. During the pool excavation Sylvan discovered what it believed to be asbestos in the soil. The Court finds that Sylvan did not know any toxic waste materials were in the soil before excavation of the pool actually began.

 On October 26, 1988, Sylvan contacted the San Diego County Department of Health Services. Nick Vent, a County employee, responded and went to the residence. Mr. Vent observed torn gaskets and lagging from pipes in the soil which Sylvan dumped in the back and front yards of 6025 Edgewater and in the back yard of the house next door. He took samples from the layer of debris back to the laboratory for testing. Tests confirmed the presence of asbestos. The County ordered that Sylvan discontinue its work and issued an official notice dated October 27, 1988, ordering that plaintiff Price contain and control the friable asbestos on and off her property (Exhibit 7).

 The San Diego County Hazardous Materials Management District (HMMD) collected and analyzed 92 samples in and around the four subject properties (6021, 6025, 6035 and 6045 Edgewater). The results revealed asbestos in the front and back yards at 6025 Edgewater. Concentrations of lead above the State TTLC levels *fn5" were found in two samples taken from borings on the 6025 Edgewater property. (Exhibits 34 and 35). According to Larry Bodenhamer of the San Diego County ...


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