into a written contract with the gas station operator requiring the gas station operator to monitor the tank system, and (3) notify the gas station operator in writing of the civil and criminal penalties for noncompliance. Health and Safety Code § 25284.2 (amended 1984 and 1989; current version at § 25293). The legislation also imposed civil penalties of not less than five hundred dollars ($ 500) or more than five thousand dollars ($ 5,000) per day upon owners who failed to comply with all statutory requirements for owning and operating underground storage tanks. Health and Safety Code § 25287 (amended 1984, 1986, 1988, 1991; current version at § 25299).
Thus, by 1985, Plaintiffs were subject to a statutorily defined duty of inquiry imposed by the Health and Safety Code, which was similar in nature to the duty of inquiry imposed upon the plaintiffs in Mangini by the Department of Justice. See also CAMSI IV, supra (Regional Board ordered plaintiff to investigate the groundwater and soil of the property). Plaintiffs could properly be expected to have exercised reasonable diligence by conducting an investigation of their property to determine the extent of any contamination on the property and the source of the contamination as required by law.
A plaintiff who fails to comply with an explicit statutory mandate enacted to discover precisely the type of harm which the plaintiff alleges is not "blamelessly ignorant" of his cause of action, and cannot claim the benefit of an equitable rule designed to ameliorate the harshness of the traditional application of the statute of limitations.
Furthermore, when Texaco vacated the property and sold the underground tanks to Plaintiffs, Plaintiffs were aware that the property had been utilized as a gasoline station continuously for twenty-seven years, and that some of the original underground tanks and piping, installed in 1956, were still being utilized. The knowledge that the property had been utilized as a gasoline station for over twenty-seven years with some of the original tanks and piping should have put Plaintiffs on inquiry about possible soil contamination notwithstanding the duty of inquiry imposed upon them by law.
The combination of plaintiffs' knowledge of the age of the underground tank system along with the statutory duty of inquiry imposed upon all owners and operators of underground tanks establishes as a matter of law that Plaintiffs should have been on notice of the possibility that their property may have been contaminated and that Texaco may have caused some or all of the contamination. See e.g. Mangini, supra. Therefore, the statute of limitations on Plaintiffs' claims for negligence, permanent nuisance, permanent trespass, and strict liability began to run no later than July 1985, and expired in July 1988, nearly two years before Plaintiffs filed suit in April 1990.
2. Continuing Nuisance & Continuing Trespass
While Plaintiffs' claims for permanent nuisance and permanent trespass are time barred, Plaintiffs' claims for continuing public and private nuisance and continuing trespass are not time barred. Mangini, supra; CAMSI IV, supra; Wilshire Westwood Assoc., supra.
However, Texaco asserts that there is no evidence to support Plaintiffs' claims for continuing nuisance, public nuisance, and continuing trespass. The crux of Defendant's argument is that Plaintiffs have no evidence that Texaco installed the leaking pipeline. In support of its position, Texaco has submitted a copy of a building permit from the Santa Clara County Building Inspection Department dated May 28, 1956 which indicates that a contractor named Oscar Liebert built the service station.
Texaco also denies installing any replacement tanks and piping as part of the modernization of the gasoline station in 1967. Texaco has submitted a letter from Oscar Liebert to Texaco dated May 1, 1965 which sets forth the total cost of the service station construction and equipment. Texaco has also submitted a letter from Texaco to the Canaveros dated May 14, 1968 indicating that Texaco accepts the "work of rehabilitation of the service station facilities" as complete. However, neither of the documents conclusively establishes that the Canaveros were responsible for the installation of tanks and piping. Furthermore, Texaco admits that it has been unable to locate any documents indicating who installed the new tanks and pipes.
Plaintiffs assert several arguments in rebuttal, and in particular, point to the declaration of former property owner Grace Canavero which states:
During all of the time that Mario A. Canavero and/or I leased the aforesaid premises to Texaco, it exercised sole and exclusive control over the furnishing, installation, replacement, maintenance and repair of the several underground fuel tanks located on the premises. At all times, Texaco exercised sole control in removing and/or replacing such fuel tanks as were removed or replaced during the time that Mario A. Canavero and/or I leased the aforesaid premises to Texaco.