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August 4, 2005.

NANCY FERGUSON, individually and as trustee of the FERGUSON FAMILY TRUST, and on behalf of her subrogee, Plaintiff,
ARCATA REDWOOD COMPANY, LLC., et al., Defendants.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


On July 29, 2005, the Court heard argument on defendants' motions for summary judgment. Having carefully considered the arguments of counsel and the papers submitted, the Court GRANTS Simonson's motion for summary judgment; DENIES Quebecor's motion for summary judgment; GRANTS ARC-LLC's motion for summary judgment against plaintiff's claims; DENIES ARC-LLC's motion for summary judgment on its cross-claims against Quebecor; and DISMISSES plaintiff's Second and Third Causes of Action with respect to all defendants.


  Plaintiff Nancy Ferguson filed suit on December 15, 2003, against twenty-one defendants, under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6930, and related state laws, seeking contribution for costs of investigation and clean up of the soil and groundwater contamination at and emanating from a property located at 100 Timbers Boulevard, Smith River, California ("the Property").*fn1

  The Property was purchased by Simonson Lumber Company on May 11, 1973. See Brown Decl., Ex. 1. The Property was a small portion of the company's holdings in the area, which included timberland, lumber mills and other facilities. In June 1979, Arcata Corporation*fn2 purchased all shares of stock for Simonson Lumber Company and took possession of the Property. On April 15, 1988, Arcata Corporation entered into a Lease/Option Agreement for the Property with XL Enterprises, which provided XL Enterprises with the option to purchase the property within six months. See Brown Decl., Ex. 2.

  On June 29, 1988, Arcata Corporation sold certain assets, including the Property, to Simpson Acquiring Company.*fn3 See Brown Decl., Ex. 3. Approximately two weeks later, XL Enterprises informed Simpson Acquiring Company that it was exercising its option to purchase the property. Title passed to XL Enterprises on August 3, 1988. See Brown Decl., Ex. 1.

  Plaintiff purchased the Property from XL Enterprises in 1993. In 1998, plaintiff attempted to sell the Property to the Del Norte Housing Development Corporation. As a result, an environmental site assessment was conducted on the Property, which uncovered a disposal pit. The pit contained waste disposal that included scrap metal and pipes, as well as contamination from hydrocarbons, wood treatment products, PCB and PCP.

  Plaintiff contends that she was not responsible for the contamination and seeks compensation from previous owners and operators of the Property. Specifically, plaintiff claims that she is entitled to a judgment against all defendants for, among other things, contribution and indemnity for all response costs incurred by plaintiff, compensatory and general damages resulting from the presence of soil and groundwater contamination at and emanating from the Property, and for injunctive and declaratory relief. On August 27, 2004, plaintiff filed her Second Amended Complaint. Defendant Arcata Redwood Company, LLC (ARC-LLC) moved to dismiss the second amended complaint, and on November 12, 2004, the Court dismissed plaintiff's CERCLA, RCRA and California Health & Safety Code claims against ARC-LLC. However, the Court upheld plaintiff's public nuisance, private nuisance, equitable indemnity and declaratory relief claims against that defendant.

  Currently before the Court are various motions for summary judgment: 1) Leland Simonson's motion on plaintiff's claims; 2) Quebecor's motion on plaintiff's claims; 3) ARC-LLC's motion on plaintiff's remaining state law claims; and 4) ARC-LLC's motion on its cross-claims against Quebecor. Plaintiff has not opposed Quebecor's motion to dismiss the RCRA claims. Additionally, plaintiff has submitted a "request for dismissal of RCRA claims" dated July 8, 2005. Therefore, the Court will DISMISS plaintiff's Second and Third Causes of Action, which consist of RCRA claims brought against all defendants.


  Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party, however, has no burden to negate or disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only point out to the Court that there is an absence of evidence to support the non-moving party's case. See id. at 325.

  The burden then shifts to the non-moving party to "designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

  In deciding a motion for summary judgment, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when she] is ruling on a motion for summary judgment." Id.


  1. Leland Simonson's motion for summary judgment

  Leland Simonson, along with his father, became the sole shareholders of Simonson Lumber Company in the 1950's. Weinstein-Hamilton Decl., Ex. 1 at 11.*fn4 Simonson was the president and manager of the company, and his wife was the secretary. Id.; Supp. Valinoti Decl., Ex. 2 at 51. The holdings of Simonson Lumber Company included the Property at issue in this litigation. In June 1979, Arcata Corporation purchased all of the shares of stock of Simonson Lumber Company. Plaintiff has filed a claim against Leland Simonson as an individual. SAC at ¶ 17. Although plaintiff also filed suit against Simonson Lumber Company, those claims were voluntarily dismissed on March 8, 2005. [Docket #67]

  Simonson argues that summary judgment is appropriate because plaintiff has failed to present any evidence that he was the owner or operator of the Property at the time of disposal of any hazardous substance. He argues that the activities that led to the contamination found in the disposal pit occurred after he sold his interest in the Property in June 1979.

  Under 42 U.S.C. § 9607(a)(2), liability under CERCLA can be attached to "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." Plaintiff argues that Simonson was an operator at the time hazardous substances were disposed and that he is liable as a "generator" of hazardous waste. The Court finds that Simonson cannot be held liable as an "owner or operator" under CERCLA because plaintiff has failed to present any evidence that hazardous substances were disposed of on the Property at issue during Simonson Lumber Company's ownership of the Property. The basis for plaintiff's complaint is the contamination found in the disposal pit, which contained various hazardous materials including parts from the dismantled power plants. Plaintiff presents no evidence that these materials were disposed of before ...

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