The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT
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
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 ...