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Hinds Investments, L.P. v. Ryan

April 6, 2009

HINDS INVESTMENTS, L.P. AND THOMAS F. HINDS, PLAINTIFFS,
v.
DENNIS RYAN, PHYLLIS RYAN, DONALD STROM, KESKA STROM, FRANK W. ROYSDON, LEITHA O. ROYSDON, FRANK SHREVE, MARILYN SHREVE, TAJICO SUPERMARKETS, INC., TAJICO VISTA, INC., KYOUNG H. LEE, IN SUK LEE, PONG SIK MUN, SONG JA MUN, DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Guilford United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION

Tetrachlorethylene ("PCE") is a solvent used by dry cleaners. PCE is hazardous when it leaks into subsurface soil or groundwater. PCE can leak into the subsurface in several ways, including releases from sewer lines, equipment failure, and transfer operations.

In this case, plaintiffs Hinds Investments, L.P. and Thomas F. Hinds (collectively "Plaintiffs") own a piece of property (the "Site"). (Memorandum of Points and Authorities in Support of Motion for Summary Adjudication ("Mot.") 1:23-2:2.) Plaintiffs sued Kyoung H. Lee, Pong Sik Mun, and Song Ja Mun (the "Tenant Defendants"), among others, claiming that they are responsible for PCE contamination of the Site. Plaintiffs filed this motion for summary adjudication (the "Motion") against the Tenant Defendants. Defendant Kyoung H. Lee filed an Opposition. After considering the parties' arguments, the Court GRANTS in part and DENIES in part the Motion.

The Court grants the Motion as to Plaintiffs' first claim for violation of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), second claim for violation of the Resources Conservation and Recovery Act ("RCRA"), fourth claim for violation of the Carpenter-Presley-Tanner Hazardous Substance Account Act ("HSAA"), eleventh claim for breach of contract, and twelfth claim for express indemnity. The Court DENIES the Motion as to Plaintiffs' eighth claim for nuisance, ninth claim for trespass, and tenth claim for waste.

BACKGROUND

Plaintiffs leased the Site to a third party, who assigned the lease to Kyoung H. Lee and In Suk Lee (the "Lees") in March 1981. (Mot.5:3-13.) The Lees used the Site for a dry cleaning operation called "Top Hat Cleaners." (Id. 6:3-5.) In 1982, the Lees sold Top Hat Cleaners to Pong Sik Mun and Song Ja Mun (the "Muns") and assigned their lease to the Muns. (Id. 6:1-10.) The Muns have operated Top Hat Cleaners from 1982 to the present. (Id. 7:21-22.)

The Lees used PCE on the Site from 1981 to 1982. (Mot. 7:25-8:4.) The Muns have used PCE on the Site from 1982 to the present. (Id. 8:6-18.)

In 2007, PCE was detected at the Site in soil, gas, and groundwater. (Mot. 8:20-21.) Plaintiffs hired environmental consultants to investigate and assess the Site. (Id. 8:21-23.)

Plaintiffs sued the Tenant Defendants, among others. (Although In Suk Lee seems to be a relative of Kyoung H. Lee, Plaintiffs do not include In Suk Lee in this Motion. See Mot. 2:11.) Plaintiffs allege claims for relief, numbered as follows: (1) recovery of response costs under CERCLA, 42 U.S.C. §§ 107(a)(1-4)(B), against the Tenant Defendants; (2) violation of the RCRA, 42 U.S.C. §§ 6901 et seq., against the Tenant Defendants; (3) declaratory relief under CERCLA, against all Defendants; (4) violation of the HSAA, Health & Safety Code §§ 25300 et seq., against the Tenant Defendants; (5) equitable indemnification under state law, against all Defendants; (6) declaratory relief under state law, against all Defendants; (7) attorney's fees under Cal. Code. Civ. P. § 1021.5, against all Defendants; (8) nuisance, against the Tenant Defendants; (9) trespass, against the Tenant Defendants; (10) waste, against the Tenant Defendants; (11) breach of contract, against the Tenant Defendants; (12) express indemnity, against the Tenant Defendants; and (13) breach of contract, against one of the other defendants.

In the Motion, Plaintiffs move for summary adjudication against the Tenant Defendants on their first claim for violation of CERCLA, second claim for violation of the RCRA, fourth claim for violation of the HSAA, eighth claim for nuisance, ninth claim for trespass, tenth claim for waste, eleventh claim for breach of contract, and twelfth claim for express indemnity.

ANALYSIS

Plaintiffs have provided sufficient evidence to satisfy their burden of showing the absence of a genuine issue as to the Tenant Defendants' liability for violations of CERCLA, HSAA, RCRA, breach of contract, and express indemnity. Plaintiffs have not provided sufficient evidence to satisfy their burden of showing the absence of a genuine issue as to the Tenant Defendants' liability for nuisance, trespass, or waste.

1. KYUONG H. LEE'S EVIDENTIARY OBJECTIONS

Before reviewing Plaintiffs' claims, the Court addresses Kyuong H. Lee's evidentiary objections. Lee argues that none of Plaintiffs' evidence is admissible. (Opp'n 4:18-5:20.) Lee objects to Plaintiffs' evidence on the grounds that it is hearsay and that the declarant has not ...


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