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Enns Pontiac, Buick & Gmc Truck, A California Corporation v. Orelia Flores

August 29, 2011

ENNS PONTIAC, BUICK & GMC TRUCK, A CALIFORNIA CORPORATION; EARL L. ENNS AND ESTHER J. ENNS AS TRUSTEES OF THE 2004 ENNS FAMILY TRUST; AND HAROLD J. ENNS AND PATRICIA L. ENNS AS TRUSTEES FOR THE FAMILY TRUST,
PLAINTIFFS,
v.
ORELIA FLORES, AN INDIVIDUAL; SACHIKO YAMAGUCHI, AS ADMINISTRATOR TO THE ESTATE OF SIETO YAMAGUCHI; THE ESTATE OF SIETO YAMAGUCHI, DECEASED; PATRICIA CLOTHIER AND CAROLYN WHITESIDES, AS ADMINISTRATORS TO THE ESTATE OF HERBERT LEE; PATRICIA CLOTHIER AND CAROLYN WHITESIDES, AS ADMINISTRATORS TO THE ESTATE OF MABEL LEE; THE ESTATE OF MABEL LEE, DECEASED; THE ESTATE OF HERBERT LEE, DECEASED; REEDLEY STEAM LAUNDRY; REEDLEY DRY CLEANING WORKS; JOHN PEARCE, AN INDIVIDUAL; PATSY MARTINEZ, AN INDIVIDUAL; LOUIE MARTINEZ, AN INDIVIDUAL,OWW DLB DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER RE DEFENDANTS‟ MOTIONS TO DISMISS SECOND AMENDED COMPLAINT (DOCS. 160, 163)

I. INTRODUCTION

Before the court are (1) Defendant Sachiko Yamaguchi as administrator to the Estate of Sieto Yamaguchi‟s motion to dismiss Plaintiff‟s second amended complaint ("SAC") (Doc. 160); and (2) Defendants Patricia Clothier and Carolyn Whitesides as administrators for the Estate of Herbert Lee and the Estate of Mabel Lee (together, the "Lee Administrators"), the Estate of Herbert Lee, the Estate of Mabel Lee, Reedley Steam Laundry, and Reedley Dry Cleaning Works‟ (collectively, "Lee Defendants") motion to dismiss the SAC (Doc. 163). Plaintiffs filed oppositions to both motions (Docs. 177, 190), to which the Lee Defendants and Sachiko Yamaguchi replied (Docs. 192, 199). The motions were heard June 20, 2011. Plaintiffs filed a supplemental opposition on June 30, 2011 (Doc. 232), to which the Lee Defendants and Sachiko Yamaguchi replied (Docs. 237, 240).

II. BACKGROUND

This case concerns the alleged release of hazardous solvents used in the dry cleaning industry which created a groundwater plume in Reedley, California. The Second Amended Complaint ("SAC") asserts claims for: (1) recovery of "response" costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") §§ 107(a)(1-4)(B); (2) declaratory relief under federal law; (3) negligence per se; (4) negligence; (5) public and private nuisance; (6) trespass; (7) equitable indemnity; and (8) declaratory relief under state law.

Plaintiffs own real property located at 1319 G. Street, Reedley, California ("Property"). Before Plaintiffs gained ownership of the Property, Mabel and Herbert Lee owned and/or operated a dry cleaning business on the Property from approximately the 1940s through the 1970s. Herbert Lee died on September 12, 1993. Mabel Lee died on June 27, 2008.

Orelia Florez and Sieto Yamaguchi owned and/or operated a dry cleaning business at 1340 G. Street, Reedley, California, across the street from the Property. Sieto Yamaguchi died in March 2007.

On July 19, 2007, Plaintiffs filed a Complaint against Defendants Orelia Flores, Mabel Lee, Michelle Lua, and Sieto Yamaguchi. Doc. 2. On November 7, 2007, Plaintiffs filed a First Amended Complaint ("FAC") (1) substituting Defendant Sieto Yamaghuchi with Defendant The Estate of Sieto Yamaguchi; (2) deleting Defendant Michelle Lua; and (3) adding Defendants the Estate of Herbert Lee, Reedley Steam Laundry, Reedley Dry Cleaning Works, John Pierce, Patty Martinez, and Louie Martinez. Doc. 13. A memorandum decision dated April 20, 2011 granted Plaintiffs‟ motion to amend the FAC to name the administrators of the estates of three Defendants: Sachiko Yamaguchi for the Estate of Sieto Yamaguchi and the Lee Administrators for the Estate of Mabel Lee and Estate of Herbert Lee. Doc. 146. The SAC was filed April 25, 2011. Doc. 154.

III. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a "complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face.‟" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007)). A complaint does not need detailed factual allegations, but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.

In deciding a motion to dismiss, the court should assume the veracity of "well-pleaded factual allegations," but is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 127 S.Ct. at 1950. "Labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "‟Naked assertion[s]‟ devoid of "further factual enhancement‟" are also insufficient. Iqbal, 127 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Instead, the complaint must contain enough facts to state a claim to relief that is "plausible on its face." Twombly, 550 U.S. at 570.

A claim has facial plausibility when the complaint‟s factual content allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct. Iqbal, 127 S.Ct. at 1949. "The plausibility standard is not akin to a "probability requirement,‟ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and "that a recovery is very remote and unlikely.‟" Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974)).

The Ninth Circuit summarizes the governing standard as follows: "In sum, for a complaint to survive a motion to dismiss, the non-conclusory "factual content‟ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)(quotations omitted).

If a district court considers evidence outside the pleadings, a Rule 12(b)(6) motion to dismiss must be converted to a Rule 56 motion for summary judgment, and the nonmoving party must be given an opportunity to respond. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). "A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment." Id. at 908.

"When the motion to dismiss is based on the running of the statute of limitations, it can be granted only if the assertions in the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980).

IV. DISCUSSION

A.SACHIKO YAMAGUCHI‟S MOTION TO DISMISS

1.Statute of Limitations

Sachiko Yamaguchi moves to dismiss the SAC as untimely under California Code of Civil Procedure § 366.2(a):

If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.

Cal. Code Civ. P. § 366.2(a).

Sieto Yamaguchi died in March 2007. The Complaint was filed against Sieto Yamaguchi on July 19, 2007. The FAC was filed against the Estate of Sieto Yamaguchi on November 7, 2007. Both the Complaint and FAC were filed within ...


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