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Borge Development, Inc. v. City of Chico

April 20, 2009

BORGE DEVELOPMENT, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
v.
CITY OF CHICO, CALIFORNIA; BUTTE COUNTY, CALIFORNIA; AND BALDWIN CONTRACTING COMPANY, INC., A CALIFORNIA CORPORATION, DEFENDANTS.



ORDER GRANTING BALDWIN CONTRACTING COMPANY'S MOTION FOR SUMMARY JUDGMENT

Borge Development, Inc. ("Borge") brought this action against the City of Chico, California ("Chico"), Butte County, California ("Butte County"), and Baldwin Contracting Company ("Baldwin") for cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607, contribution under CERCLA, 42 U.S.C. § 9613, and other state law violations. Baldwin filed a Motion for Summary Judgment or, in the Alternative, Summary Adjudication. Borge opposed the Motion. Both Chico and Butte County partially joined in the Motion. For the reasons stated below, Baldwin's Motion for Summary Judgment is GRANTED.*fn1

BACKGROUND

Borge owns two parcels of land, Butte County Assessor parcel numbers 002-180-084 and 002-180-086 ("Borge Property"). Borge alleges that the Borge Property was contaminated by the operation of the Chico Burn Dump by Chico and Butte County over 70 years.

Borge was ordered by a state regulatory agency to clean up the contamination. The cost to remediate the Borge Property was more than $490,000.00.

Borge further alleges that in 1987, as part of a project to extend Bruce Road ("Bruce Road Project"), Chico hired Baldwin to assist in the removal and disposal of excavated waste material. Borge alleges that as part of the Bruce Road Project, Baldwin transported hazardous waste to the Borge Property, which is located directly to the east of Bruce Road. Baldwin denies that it ever transported or disposed of any hazardous waste on the Borge Property.

OPINION

Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to 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). Where the nonmoving party will have the burden of proof on an issue at trial, the movant's burden may be discharged by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. See id. at 325. Summary judgment for a defendant is appropriate when the plaintiff fails to make a showing sufficient to establish the existence of an element essential to its case, and on which [he] will bear the burden of proof at trial. Id. at 322.

If the moving party sustains its burden, the burden then shifts to the nonmoving party to go beyond the pleadings and by his or her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324 (citing Fed.R.Civ.P. 56(e)). "If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). Summary judgment is appropriate if, viewing the evidence and the inferences therefrom in the light most favorable to the nonmoving party, there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989).

Baldwin argues that it is entitled to summary judgment for the following reasons:

1. Baldwin has never been an owner or operator of the facility that is the subject of the litigation;

2. Baldwin never arranged, transported, or was otherwise responsible for the disposal of hazardous waste on the Borge Property; and

3. Borge is a suspended corporation and therefore does not have standing to bring this suit.*fn2

Baldwin's first contention is irrelevant as Borge does not allege that Baldwin ever owned the property in question. Borge claims that Baldwin is liable in this case because Baldwin was an "arranger and transporter of hazardous waste within the meaning of CERCLA section 107(3)." Borge Opposition to Motion for Summary Judgment, p.9 (Docket at #57). This contention and consequently Baldwin's liability, if any, is dependent on Borge being able to prove that Baldwin arranged, transported and disposed of unsuitable material onto Borge's property. As further discussed below, Borge has failed to produce sufficient evidence to create a genuine issue of material fact on this issue.

The principle question before the Court is whether a genuine issue of material fact exists as to whether Baldwin arranged, transported, or was otherwise responsible for the ...


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