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Remington v. Mathson

United States District Court, N.D. California, Eureka Division

March 27, 2012

BRUCE REMINGTON, Plaintiff,
v.
JOHN MATHSON, JOY MATHSON, et al., Defendants

Page 1257

Bruce Remington, Plaintiff, Pro se, Eureka, CA.

For John Mathson, Joy Mathson Defendants: John Michael Vrieze, Paul A. Brisso, Russell Scott Gans, Mitchell Brisso Delaney & Vrieze, Eureka, CA.

Page 1258

ORDER RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT (Docket No. 63)

NANDOR J. VADAS, UNITED STATES MAGISTRATE JUDGE.

Pending before the Court is the Motion for Summary Judgment/Partial Summary Judgment filed by Defendants John and Joy Mathson. (Docket No. 63.) The Court has taken this motion under submission on the papers pursuant to Local Civil Rule 7-1(b). (Docket No. 76.) As set forth below, the Court grants Defendants' Motion for Summary Judgment as to the federal claims and declines to retain jurisdiction over the state law claims.

BACKGROUND

This is a case between neighbors based in part on alleged violations of various federal environmental laws including the Resource Conservation and Recovery Act (" RCRA" ), the Clean Water Act (" CWA" ), the Comprehensive Environmental Response, Compensation and Liability Act (" CERCLA" ), and Emergency Planning and Community Right to Know Act (" EPCRA" ). Plaintiff raises the following eight claims in his Complaint: 1) CWA violation for discharges from five water point sources; 2) RCRA violation for discharge of hazardous wastes under 42 U.S.C. § 6972(a)(1)(A); 3) RCRA violation for handling, storage, treatment, transportation or disposal of solid or hazardous waste presenting an imminent and substantial danger to health or the environment under 42 U.S.C. § 6972(a)(1)(B); 4) CERCLA violation for discharging hazardous materials; 5) EPCRA violation for failing to report the release of hazardous substances; 6) trespass for dumping substances onto Plaintiff's property and the resulting discharge into Plaintiff's surface and groundwater; 7) nuisance resulting from Defendants' contamination of Plaintiff's property and construction of a fence partially on Plaintiff's property; and 8) negligence and negligence per se from Defendants' contamination of Plaintiff's property in violation of state and county codes and the CWA, failure to remove leaning trees near Plaintiff's property, and from Defendants' drainage pipes. (Docket No. 1) Plaintiff requests a declaration that Defendants violated the CWA, RCRA, CERCLA, and EPCRA. Plaintiff also requests that the Court order Defendants to clean up their property and Plaintiff's property; enjoin Defendants from storing, disposing, or discharging hazardous substances; order Defendants to comply with CERCLA and EPCRA reporting requirements; impose civil penalties for CWA and RCRA violations; and enjoin other conduct by Defendants.

Page 1259

PROCEDURAL HISTORY

This action was filed on September 25, 2009. (Docket No. 1.) On November 30, 2009, Defendants filed a Motion to Dismiss or Stay Further Proceedings. (Docket No. 12.) Plaintiff opposed the motion. (Docket No. 20.) On March 26, 2010, the Court entered an order resolving the motion and providing in part as follows:

The Court DENIES IN PART and GRANTS IN PART Defendants' motion to dismiss, and STAYS the state law claims of trespass, nuisance, negligence, and negligence per se raised in this federal action pending resolution of the quiet title, trespass, nuisance, nuisance per se, negligence, and negligence per se claims in the state court action, Remington v. Mathson (No. DR080678, Humboldt County Superior Court). The Court directs the parties to provide periodic updates to the Court, at least every 60 days, regarding the progress of the state court action and whether resolution has been reached on the quiet title, trespass, nuisance, nuisance per se, negligence, and/or negligence per se claims in the state court action. As noted above, Defendants referred to Rule 12(b)(6) grounds for dismissal, but did not present any argument on this basis. Defendants must file their answer to the complaint, or a Rule 12(b)(6) motion to dismiss on the federal environmental claims, within twenty (20) days of the filing of this order.

( Docket No. 36, p. 17-18.) Defendants filed an Answer to the Complaint on April 15, 2010.

On August 15, 2011, Defendants filed a Motion for a Protective Order and Exclusion Sanctions. (Docket No. 56.) Plaintiff opposed the motion. (Docket No. 59.) On September 13, 2011, Defendants filed the Motion for Summary Judgment/Partial Judgment now pending before the Court. (Docket No. 63.) The Court took the Motion for a Protective Order and Exclusion Sanctions under submission on the papers and on September 27, 2012, entered an order granting the Motion. (Docket No. 72.) In that order, the Court found that Plaintiff had failed to comply with the expert witness disclosures required under Rule 26(a)(2), Federal Rules of Civil Procedure. Id. at 3:2-11. Accordingly, the Court ordered that Plaintiff would be " precluded from relying on retained expert witnesses to supply evidence on a motion, at a hearing, or at a trial in this case." Id. at 5:17. The Court ordered Plaintiff to produce " the March 2011 testing results" by close of business on September 30, 2011, and sanctioned Plaintiff in the amount of Defendants' costs and expenses in bringing the motion. Id. at 5:18-22. Defendants filed their bill of costs on October 6, 2011. (Docket No. 74.) The Court entered an order taxing costs and expenses in the amount of $2,525.00 on October 14, 2011. (Docket No. 75.) On October 28, 2011, Plaintiff filed a Motion for Leave to File a Motion for Reconsideration, which the Court denied on December 6, 2011. (Docket Nos. 83, 89.)

On October 17, 2011, the Court entered an order taking Defendants' Motion for Summary Judgment/Partial Judgment under submission on the papers pursuant to Civil Local Rule 7-1(b). (Docket No. 76.) Also on October 17, 2011, Plaintiff filed his opposition to Defendants' motion. (Docket No. 78.) Defendants filed objections to the Opposition the same day. (Docket No. 77.) Defendants filed their Reply to Plaintiff's Opposition on October 24, 2011. (Docket No. 81.) Plaintiff filed objections to Defendants' Reply on November 1, 2011. (Docket No. 88.)

Pursuant to the Court's order, Plaintiff filed a status report on March 16, 2012. (Docket No. 92.) In his status report,

Page 1260

Plaintiff states that Humboldt County conducted an investigation on Plaintiff's property in December of 2011. Id. at 1 - 2. Plaintiff attaches a copy of a report of testing done on his own property dated January 6, 2012. Id. at 6. He states that the state court trial has been continued to September 2012. Id. at 4.

Defendants filed a supplemental report on March 14, 2012. (Docket No. 91.) The supplemental report filed by Defendants provides in part as follows;

In response to a new complaint lodged by Mr. Remington with the County of Humboldt Department of Public Health that the fill placed on the Mathsons' property constituted hazardous sold waste(s) in violation of hazardous waste laws and regulations, the Department of Public Health conducted an investigation. Trial in the State Court case was continued, by stipulation, pending completion of the investigation by the Department of Public Health.
That investigation was recently completed on February 21, 2012, resulting in a finding that the fill placed on the Mathsons' property does not constitute solid waste, and the County found no violation of hazardous waste statutes or regulations. A copy of the relevant correspondence from the County of Humboldt, Department of Public Health, is attached as Exhibit A.
As is self-evident from plaintiff's recent status report, the alleged " new" testing results he attached to his report are in no way tied to or in any way related to the Mathsons' property, and relate entirely to a reported investigation on plaintiff's property. Mr. Remington's speculative assertions that contamination allegedly found on his property originates from the Mathsons' property is not competent evidence and is not admissible evidence in either the state or federal proceedings. The " investigation" on the Mathsons' property to which Mr. Remington refers in his report has been completed, and no further action was deemed warranted as the County of Humboldt notes. With the County investigation complete, trial has been reset in the state court case for September 10, 2012, regarding the parties' respective nuisance and trespass claims against each other.

Id. at 1:19 - 2:14.

LEGAL STANDARDS

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962); Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.2003). Under summary judgment practice, the moving party " always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir.2006). A fact is material if it could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Miller, 454 F.3d at 987.

Page 1261

" [W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.' " Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553; Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir.2004). Indeed, summary judgment should be entered " after adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552; Miller, 454 F.3d at 987. " [A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552. In such a circumstance, summary judgment should be granted, " so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. at 2552.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to a material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir.2000). The opposing party cannot " 'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.' " Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.2008) (quoting Fed. R Civ. Pro. 56(e)); Miller, 454 F.3d at 987. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Cline v. Industrial Maintenance Engineering & Contracting Co., 200 F.3d 1223, 1229 (9th Cir.2000), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2510; Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1144 (9th Cir.2006). A " mere scintilla of evidence" supporting the non-moving party's position is insufficient to defeat a motion for summary judgment. Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007); Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that " the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 289-90, 88 S.Ct. at 1592-93; Giles v. General Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir.2007). Thus, the " purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.' " Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e) Advisory Committee Note to 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468, 82 S.Ct. at 488; Price v. Sery, 513 F.3d 962, 965 n. 1 (9th Cir.2008); Lockett v. Catalina Channel Exp., Inc., 496 F.3d 1061, 1064

Page 1262

(9th Cir.2007). " [I]n ruling on a motion for summary judgment, the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.' " Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. at 1551-52, 143 L.Ed.2d 731 (1999) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505); Miller, 454 F.3d at 987; Stegall v. Citadel Broad., Co., 350 F.3d 1061, 1065 (9th Cir.2003). Finally, to demonstrate a genuine issue the opposing party " must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (citations omitted).

PLAINTIFF'S DECLARATION

Accompanying Plaintiff's Opposition to Defendants' Motion for Summary Judgment/Partial Summary Judgment is a two-volume Declaration of Bruce Remington (" Remington Declaration" ). (Docket Nos. 79, 80.) The Remington Declaration is comprised of text, photographs and what appear to be copies of other documents. The photographs and apparent copies of documents are dispersed between the text pages. The text portion of the Remington Declaration is numbered through page 157 and the Court estimates that the non-text portion comprises approximately 100 pages.

Defendants object to the Remington Declaration on the grounds that it does not comply with either Rule 56 of the Federal Rules of Civil Procedure or Civil Local Rule 7-5. Defendants therefore ask the Court to strike the Remington Declaration.

Rule 56(c)(4) requires that " [a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Civil Local Rule 7-5(b) provides as follows:

(b) Form. An affidavit or declaration may contain only facts, must conform as much as possible to the requirements of Fed.R.Civ.P. 56(e), and must avoid conclusions and argument. Any statement made upon information or belief must specify the basis therefor. An affidavit or declaration not in compliance with this rule may be stricken in whole or in part.

The Court finds that, as Defendants argue, the Remington Declaration is replete with inadmissible hearsay which cannot be considered by this Court. This includes Plaintiff's descriptions conversations he had with various County and State officials and findings allegedly made by them. The Court also finds that the Remington Declaration contains many speculative opinions and factual assertions that lack foundation. Further, the Court finds that Defendants are correct in arguing that there is no foundation to support Plaintiff's assertion that he constitutes an " expert" in the matters he proclaims. Plaintiff's statement that he is " an expert on, without limitation, the pollution, contamination, and wastes disposed by Mathson on my property, the hydrology and topography of these sites, the volume and location of the various solid and hazardous wastes on this site (especially asbestos pipe), proper scientific sampling and testing procedures, the composition of many of Mathson's wastes dumped on my land discovered to date, the general biology of the sites, the statistically estimated weight of asbestos pipe and friable matting deposited here, and many of the state and federal laws violated thereby," does not make him such. The Court finds

Page 1263

no foundational basis to consider Plaintiff an expert on any matter.

Defendants contend that none of the material cited to in the Remington Declaration is presented in a form that would be admissible evidence, and thus object to it pursuant to Rule 56 (c)(2). Defendants note in particular Plaintiff's citation to environmental tests, arguing that these are inadmissible and that Plaintiff lacks qualification to render an opinion regarding them. Defendants also cite Plaintiff's attachment of multiple copies of pages from " Wikipedia" and other websites in support of his assertions, arguing that all of this material is inadmissible and should be stricken. Finally, Defendants argue that the Declaration should be stricken under Civil Local Rule 7-5 (b) as it is replete with argument and irrelevant statements and factual assertions made are not supported by admissible evidence.

The Court finds all of Defendants' arguments to be well-taken, and finds that it would be within its discretion to strike the entire Remington Declaration. However, in the interests of judicial economy and in light of the strong public interest in the speedy resolution of this case on the merits, the Court declines to do so. The Court will, however, consider the admissibility of the evidence cited by Plaintiff as it considers each of his arguments in opposition to the pending motion.

UNDISPUTED FACTS

1. John and Joy Mathson own the real property located at 778 Westgate Drive and have resided at the property since 1971.

2. Bruce and Suzanne Remington own the real property adjacent to the Mathsons' property and located at 832 Westgate Drive. The Remingtons have owned the real property since 1979.

3. At the outset of this dispute between neighboring real property owners, Remington alleged and asserted that he had the right to maintain certain encroaching structures (i.e., a " fence" and other miscellaneous items) on a portion of the real property the Mathsons' assert belongs to them.

Defendants cite as evidence in support of this fact Request for Judicial Notice (" RJN" ) Exhibit E, which they describe the " Remington Verified Complaint filed in Humboldt Superior Court, DR080678 on July 21, 2008." Plaintiff disputes only the assertion that this complaint was verified, claiming that it was not. The Court finds the stated fact undisputed for the purposes of the motion.

4. During the course of simultaneously filed litigation in the Humboldt County Superior Court, Michael Pulley of Points West Surveying has been retained by the Mathsons to locate the true boundary line between the Mathson and Remington parcels.

Although Plaintiff responded to this fact offered by Defendants by stating that it is partially disputed, the Court finds that none of Plaintiff's comments dispute the stated fact. The Court finds the stated fact undisputed for the purposes of the motion.

5. As a result of Mr. Pulley's survey work on or about December 15, 2010, he has located the true boundary between the Mathson and Remington parcels and has prepared a formal survey documenting said property line.

Although Plaintiff responds to this fact offered by Defendants by stating that it is partially disputed, Plaintiff states that he now recognizes the Pulley line as the " legal boundary." The Court finds the fact as stated is undisputed for the purposes of the motion.

Page 1264

6. During calendar year 1998, John and Joy Mathson built a detached garage and placed fill in their backyard for purposes of landscaping improvements.

Defendants cite RJN Exhibit F, Mathson Declaration at paragraph 3, in support of this fact. This Declaration by John Mathson is made under penalty of perjury. Id. at 5. At paragraph 3, Mr. Mathson states, " [d]uring calendar year 1998, my wife and I sought to construct a detached garage and add fill to our backyard for the purpose of landscaping improvements." Defendants also cite the RJN Exhibit F, Declaration of Kyle Skillings (" Skillings Dec." ) at paragraph 2. This Declaration is also made under penalty of perjury. Id. at 2. At paragraph 2, Mr. Skillings states in part, " [d]uring the calendar year 1998, I operated a large, rubber tired loader on the Mathsons' property, and spread the fill materials used for their garage construction project and backyard landscaping."

Plaintiff responds to this fact asserted by Defendants by stating that the fact is probably undisputed, " unless at trial it develops that the Mathsons were paid by the truckers to dump their hazardous wastes locally and then have Mathson and Skillings conceal the solid wastes from the authorities." Plaintiff cites no evidence to support the possibility of such a showing at trial, and the Court finds the fact as asserted by Defendants to be undisputed for the purposes of the motion.

7. All fill was placed in the Mathsons' backyard in calendar year 1998. The majority of the fill, as conclusively determined by December 2010 survey evidence, is located on the Mathson parcel.

Defendants cite RJN Exhibit F, the Mathson Declaration at ¶ 4, in support of this asserted fact. In paragraph 4, John Mathson states in part, " [a]ll fill was placed in our backyard in calendar year 1998." Defendants also cite RJN Exhibit E, Skillings Dec., at ¶ 2.[1] This paragraph is quoted directly above in reference to undisputed fact number 6.

Although Plaintiff states that he disputes this fact, he states that the majority of the fill is located on the Mathsons' land, according to his own estimates. He states specifically that " about 80%" of the fill is on the Mathsons' land. Further, Plaintiff does not dispute that " the December 2010 survey evidence" shows anything other than what Defendants assert it does. Plaintiff merely asserts that the survey evidence is incorrect. The Court therefore finds the fact as asserted by Defendants is undisputed for the purposes of the motion.

8. The Court finds that this asserted fact is disputed.

9. On or about June 16, 2010, Scott Ferriman of Blue Rock Environmental drilled five (5) solid borings on portions of the Mathson property, all within the subject " fill" in close proximity to the portions of the fill on the side of the " fence" Mr. Remington constructed. The purpose of the borings was to obtain analytical testing of the soil components, and specifically to assess whether any " pollutants" or " contaminants" exist in the fill which pose any threat to human health or safety, or to the environment.

In support of this asserted fact, Defendants cite the Declaration of Scott Ferriman (" Ferriman Declaration." ) at ¶ 2, in which Ferriman asserts precisely what is stated in this undisputed fact. Although Plaintiff indicates that this fact is partially disputed, Plaintiff simply criticizes the location of Ferriman's testing and assumptions which he claims Ferriman made.

Page 1265

The Court finds that this does not establish a dispute as to the fact asserted by Defendants, and that this fact is undisputed for the purposes of the motion.

10. Mr. Ferriman and Mr. Gwinn of Blue Rock Environmental were aware that the fill contained chunks of hardened asphalt and concrete.

11. Since hardened asphalt can show up as a " false positive" during analytical testing, leachability testing was performed on all five soil borings taken by Blue Rock Environmental to determine if any pollutants " leached" or migrated from the soil samples collected from the borings into surface water or ground water.

In support of this asserted fact, Defendants cite the Ferriman Declaration at ¶ 4, which provides as follows:

4. Knowing the hardened asphalt and concrete chunks existed in the fill on the Mathson's property, Brian Gwinn of Blue Rock Environmental and I sought to subject the soil samples on three of the five soil borings to " leachability testing" to determine if any pollutants " leached" or migrated from the hardened asphalt into adjacent ground or surface water. Leachability testing is a typical study method in connection with site evaluations by the Northern California Regional Water Quality Control Board. Basically, hardened asphalt can show up as a " false positive" during analytical testing, due to the presence of oil based products in the asphalt for cohesion. In circumstances where hardened asphalt is known to exist, leachability testing is conducted to determine if any hydrocarbons " leach" or " migrate" into surface or groundwater.

Defendants also cite the Gwinn Declaration at ¶ 14, wherein he states:

14. Additionally, the fill samples with the highest TPHmo and TPHd concentrations were selected for leachability testing to evaluate the potential for those compounds to leach into groundwater. Fill samples SB-2-Fill and SB-4-Fill were subjected to a Waste Extraction Test (WET) in which deionized water was used as the extractant. Calscience Environmental Labs performed the WET extraction on the soil samples and Kiff analyzed the extracts for:
o TPHmo (w/silica-gel clean-up) by EPA ...

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