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People of the State of California and the City of San Diego v. Kinder Morgan Energy Partners

June 24, 2011

PEOPLE OF THE STATE OF CALIFORNIA AND THE CITY OF SAN DIEGO,
PLAINTIFFS,
v.
KINDER MORGAN ENERGY PARTNERS, L.P. ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE CITY OF SAN DIEGO'S FIFTH CAUSE OF ACTION (NEGLIGENCE)

[Doc. No. 119]

Plaintiffs the People of the State of California and the City of San Diego (the "City") filed this action against Defendants Kinder Morgan Energy Partners, L.P. and several related entities ("Kinder Morgan"), and one named individual, Scott Martin. Plaintiffs allege several causes of action for environmental damage to the soil and groundwater on a 166-acre section of property owned by the City. Currently before the Court is Kinder Morgan's Motion for Partial Summary Judgment as to the City's Fifth Cause of Action for Negligence. [Doc. No. 119.] For the reasons stated herein, the Court DENIES Kinder Morgan's motion for partial summary judgment. BACKGROUND

This action arises from events surrounding the contamination and remediation of soil and groundwater on approximately 166 acres of City-owned land surrounding and underlying Qualcomm Stadium in San Diego, California (the "Property"), and groundwater subject to the City's Pueblo water rights ("Groundwater"). [First Amended Complaint ("FAC") Doc. No. 32 ¶ 26.] Kinder Morgan owns land adjacent to the Property, on which it operates the Mission Valley Terminal ("MVT"). [Id at ¶ 27.] The MVT is an industrial facility engaged in the business of transporting, storing, and distributing petroleum products. [Id.]

The following facts are not reasonably in dispute. The City was on notice, as early as 1992, that Kinder Morgan and its predecessors released petroleum products into the groundwater and soil, resulting in contamination and pollution of the City's Property and Groundwater. [Id. at ¶ 30; Defs.' Stmt. Of Uncontroverted Facts ("SUF") ¶ 1.] In 1992, the California Regional Water Quality and Control Board ordered the investigation and remediation of contamination at the MVT. Since 1992, the City has received copies of Kinder Morgan's reports to the Regional Board, and provided input in the Regional Board's oversight of remediation efforts. [Id. at ¶ 2.]

From 2001 through 2004, the City considered suing Kinder Morgan for damages allegedly caused by the petroleum releases. [Id. at ¶ 3.] Plaintiffs filed this lawsuit on August 14, 2007. [Doc. No. 1.] Plaintiffs allege a myriad of claims, including claims for public nuisance, private nuisance, trespass, negligence, violation of California Health and Safety Code section 25249.5,*fn1 violation of California Business and Professions Code section 17200, and a request for declaratory relief. [See FAC.] However, only the viability of the City's Fifth Cause of Action for Negligence is currently before the Court.

Since 2004, dozens of releases have been reported at the MVT. [Pls.' Separate Stmt. of Facts ("SSF") ¶ 2.] A monitoring well, at which data is gathered to gauge the free product (the thickness of petroleum products), shows an increase of free product from .06 feet on July 9, 2010 to .15 feet of free product on September 14, 2010. [Id. at ¶ 3, citing Exh. B "Remedial Progress Evaluation Report".]

The parties do dispute whether Defendants' remediation system has been effective at preventing the migration of pollution from the releases at the MVT to the City's Property, and the extent to which pollutants from releases since 2004 have migrated to the Property. They also contest whether Defendants' agent discovered new contamination on the City's Property, or whether the area of contamination was merely "newly delineated" at that time. [Id. ¶ 5, Exh. I, "Groundwater Monitoring and Remedial Progress Report".]

LEGAL STANDARD

A party may move for summary judgment on all or part of its claims. FED. R. CIV. P. 56(a).

A party is entitled to summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id.*fn2 "The moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (citation omitted). "Once the moving party meets its initial burden, . . . the burden shifts to the nonmoving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Id.

"[T]o defeat a properly supported motion for summary judgment . . . the nonmoving party must introduce some 'significant probative evidence tending to support the complaint.'" Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997), quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249, 252 (1986). When assessing the record to determine whether there is a "genuine issue for trial," the court must "view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in [its] favor." Horphag, 475 F.3d at 1035 (citation omitted). The court may not make credibility determinations; nor may it weigh conflicting evidence. See Anderson, 477 U.S. at 255. The ultimate question on a summary judgment motion is whether the evidence "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.

DISCUSSION

Kinder Morgan makes two primary arguments for summary judgment on the City's fifth cause of action. First, Kinder Morgan asserts the City knew the property at issue was contaminated well before the statute of limitation cut-off date, and therefore the City's negligence claim is barred. Second, Kinder Morgan asserts any claim for releases within the statutory period must also fail because the City has no evidence of damages, nor could the ...


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