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Sisters of Notre Dame De Namur v. Mrs. Owen J. Garnett-Murray; et al


June 6, 2012


The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

E-filed June 6, 2012




This is an action for Resource Conservation and Recovery Act ("RCRA") violations, 42 U.S.C. § 6972, and for state law nuisance and trespass. The Sisters of Notre Dame de Namur ("the 19 Sisters" or "plaintiffs") brought this action to remediate contamination of real property. The Sisters 20 received a plot of land located in Sunnyvale, CA in 2007 through a charitable bequest in the will of 21

Annette Mardesich (the "subject property" or "Mardesich property"). The subject property borders a 22 shopping center called Fremont Corners. Fremont Corners is owned by defendants Mrs. Garnet 23

Murray and Fremont Corners, Inc. Murray, her late husband, and several other individuals not 24 parties to this action developed Fremont Corners in 1959 as shareholders of Fremont Corners, Inc. 25

At present, Garnet Murray owns 30% of Fremont Corners as an individual, and owns the remaining 26 70% as the sole shareholder of Fremont Corners, Inc. Garnet Murray's son, Jay Murray, currently 27 the Vice President of Fremont Corners, Inc., manages and oversees Fremont Corners' day to day 28 operations.

Angela's Cleaners, owned by defendant Manlei Chiao. Chiao has operated Angela's Cleaners since 3

One of the Fremont Corners shops that borders the subject property is a dry cleaners called 2003, but a dry cleaners has operated in the same retail space since approximately 1960. A dry 4 cleaning fluid called tetrachloroethylene (also known as perchloroethylene, or "PCE") was used at 5 the cleaners until 2009. It is undisputed that PCE has contaminated the soil beneath the shopping 6 center and has migrated (in the form of PCE vapor) into the soil of the adjacent Mardesich property. 7

Chiao and several of the previous owners have admitted to using PCE in their dry cleaning 8 operations. Chiao replaced the PCE equipment in 2009 with dry cleaning equipment that does not 9 use PCE. 10

approximately October 2007, shortly after they inherited the land. They intended to sell the property

to a residential developer, but have been unable to do so because building permits cannot issue until

hazardous materials on the site are reduced to non-dangerous levels.*fn1 Plaintiffs contend that the 14 defendants knew about the PCE contamination in 2006, if not earlier, but made no efforts to 15 remediate until 2010, nearly five years later. It is undisputed that Murray obtained two separate 16 environmental analyses of the soil beneath Fremont Corners in 2006 and 2007 while negotiating 17 with potential buyers of Fremont Corners. In both cases, a PCE "plume" was detected beneath the 18 dry cleaners, which exhibited PCE levels many times the permissible levels.*fn2 No efforts were made 19 to begin remediation as a result of these analyses. 20

In July 2008, plaintiffs sent a letter to Fremont Corners, Inc. notifying it of the 21 contamination on the Mardesich property and requesting that it begin remediation. In March 2009, 22 defendants hired the company Geologica to conduct a comprehensive environmental analysis. 23

The San Francisco Bay Regional Water Quality Control Board ("Regional Board") sets 26 Environmental Screening Levels ("ESLs") for hazardous materials. These levels mark the limit below which exposure to a chemical will not cause an unacceptable risk. See Dkt. No. 80 27

("Plaintiff's Motion") at 4-5. For commercial sites, the ECL for PCE is 1,400 micrograms per cubic meter of air. For residential sites, the ESL for PCE is 410 micrograms per cubic meter of air. See 28 Jensen Decl. Exh. 10; Gilhuly Decl. Exh. 1. PCE concentrations on the Mardesich property are as much as 15 times the residential ESL, and concentrations on the Fremont Corners property are as much as 70 times the commercial ESL.

Geologica contacted the Santa Clara County Department of Environmental Health ("DEH") and in 2

May 2010 defendants submitted to DEH a remediation plan, which DEH approved. In July 2010, 3 plaintiffs filed this lawsuit (after the plan had been approved but before remediation began). 4

Plaintiffs move for partial summary judgment on the issue of liability for all three of their claims. Dkt. No. 80. The Fremont Corners defendants oppose the motion and have filed a cross-7 motion for summary judgment in which they argue that (1) plaintiffs lack standing on their RCRA 8 claim, and (2) in any event, defendants are entitled to judgment on all three of plaintiff's claims. 9

Remediation actually began in October 2011 and is now ongoing.*fn3

Dkt. Nos. 81, 87. Both motions have been fully briefed by plaintiff and the Fremont Corners 10 defendants. Chiao, who did not oppose plaintiff's motion, has now reached a settlement with the plaintiff, and the plaintiff states that its motion is MOOT as to Chiao. Dkt. No. 96. All parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). Based on the moving papers, arguments presented at hearing, and all applicable authority, the court rules as follows. 14

Summary judgment is proper where there is "no genuine issue as to any material fact and [] 16 the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary 17 judgment serves to "isolate and dispose of factually unsupported claims or defenses." Celotex v. 18 Catrett, 477 U.S. 317, 323-24 (1986). A party "may move for summary judgment identifying . . . the 19 part of each claim or defense . . . on which summary judgment is sought." Fed. R. Civ. P. 56(a). 20

This includes the ability to seek summary judgment on the issue of liability, leaving the issue of 21 damages for trial." Id.; see also 11-56 Moore's Federal Practice - Civil § 56.122. 22 of a genuine issue of material fact. Id. at 323. If this burden is met, then the burden shifts to the 24 party opposing summary judgment to "designate 'specific facts showing that there is a genuine issue 25 for trial.'" Id. at 324. To defeat a motion for summary judgment, the non-moving party must show a


The party seeking summary judgment bears the initial burden of demonstrating the absence dispute of material facts, those "that might affect the outcome of the suit under the governing law." 2

Anderson v. Liberty Lobby, Inc., 477 U.S 242, 247-48 (1986). The "mere existence of a scintilla of 3 evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for 4 the [non-moving party]." Id. at 252. "When the nonmoving party has the burden of proof at trial, 5 the moving party need only point out 'that there is an absence of evidence to support the nonmoving 6 party's case.'" Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (quoting Celotex Corp., 7 477 U.S. at 325). Once the moving party meets this burden, the nonmoving party may not rest upon 8 mere allegations or denials, but must present evidence sufficient to demonstrate that there is a 9 genuine issue for trial. Id. 10

most favorable to the non-moving party, and draw all reasonable inferences in its favor. Id. at 255.

It is the court's responsibility to determine whether the facts set forth by the non-moving party "are such that a rational or reasonable jury might return a verdict in its favor based on that evidence." 14


In deciding a motion for summary judgment, the court must view the evidence in the light T.W. Elec. Serv. v. Pac. Elec. Contractors, 809 F.2d 626, 631 (9th Cir. 1997). 15 "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or 20 hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is 21 likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 22

Defendants challenge the third element of standing-the redressability of plaintiff's alleged harm. 24

They argue that this court cannot redress plaintiffs' harms by issuing an injunction because an 25 injunction would only order defendants to comply with the DEH's remediation plan, which 26 defendants are already doing. Although the defendants' motion is not a model of clarity, their 27 argument appears to be as follows: (1) plaintiff's claims are not redressable because they are moot; 28 and (2) plaintiff's claims are not redressable because (a) no further contamination can occur due to

A. Plaintiff's RCRA Claim

1. Standing

To satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). 23 new California regulations phasing out the use of PCE in dry cleaning equipment; and (b) DEH has 2 already approved and is overseeing a remediation plan. Dkt; No. 87, pp. 6-7. Defendant's first 3 argument is improper, as mootness is considered separately from standing after standing has been 4 established. See Part A.2, supra. 5

California regulations (for which defendants have not provided any citation) and DEH oversight of 7 their cleanup efforts renders further contamination impossible. If that were the case, then plaintiff's 8 sought-after order would be wholly superfluous. However, defendants' assumption is invalid. While 9 current cleanup efforts and the existence of a California regulation phasing out the use of PCE 10 injunction that requires the defendants to completely remediate the existing contamination, plaintiff 14 will receive a benefit that the current voluntary cleanup efforts do not provide. 15 order directing an independent, non-party actor to undertake some course of action. This is an 17 inaccurate statement of the facts, and the authority defendants cite for this proposition is not 18 applicable to the instant matter. See Glanton v. AdvancePCS, Inc., 465 F.3d 1123, 1125 (9th Cir. 19 2006). In Glanton, an ERISA case, plaintiffs sought an order that would have had the indirect effect 20 of influencing plaintiffs' employers' insurance companies to change their drug plan policies. The 21 court found that plaintiffs lacked redressability because the sought-after effect (a change in drug 22 plan policy) was quite remote from the order sought. Here, plaintiffs seek an order compelling 23 defendants to complete remediation of the contaminated soil. There is no indirect conduct that 24 plaintiffs seek to induce, and so Glaxton is inapposite. 25

Accordingly, because the issuance of an injunction would provide plaintiff with a remedy

26 beyond what the current cleanup process offers, defendants have failed to show that plaintiff's claim 27 is non-redressable and defendants' motion is DENIED with respect to redressability. 28

2. Mootness

Defendants' second argument relies on an assumption that the combination of new (which defendants never actually cite in their moving papers) make further contamination improbable, they do not guarantee that the current contamination will be remediated, nor do they guarantee that no future contamination will occur. If this court grants plaintiff's request for an Finally, defendants also argue that plaintiff's claim is non-redressable because it seeks an "plaintiff's claims are now moot and were moot at the time the complaint was filed." Dkt. No. 94, p. 4

The court shall "address the question of standing before turning to mootness." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). Defendants argue that 3

2. Plaintiffs filed their complaint on April 27, 2010, almost two months before defendants got DEH 5 approval of their mediation plan. In other words, at the time the complaint was filed, there was no 6 remediation plan at all, and no remediation had yet begun. Defendants attempt to argue that because 7 no one was actually living on the Mardesich property when the complaint was filed, "the risk to 8 human health or the environment . . . did not exist. . . . There was and is no potential population at 9 risk." Dkt. No. 94, p. 3. This argument clearly fails. RCRA permits a plaintiff to bring a citizen suit 10 to enjoin the threat of endangerment due to exposure to hazardous wastes. 42 U.S.C. § 6972(a).

Therefore, it is undisputed that plaintiff's claims were not moot at the time the complaint was filed.

Defendants also argue that because they took steps to eliminate the use of PCE at Angela's

Cleaners and voluntarily submitted to DEH oversight, plaintiff's claims are now moot. "[T]he 14 standard for determining whether a case has been mooted by the defendant's voluntary conduct is 15 stringent: A case might become moot if subsequent events make it absolutely clear that the allegedly 16 wrongful behavior could not reasonably be expected to recur." Friends of the Earth, 528 U.S. at 167 17 344, 89 S. Ct. 361 (1968)). Defendants argue that several factors show that their voluntary conduct 19 has mooted plaintiff's claims. First, Chiao has replaced the PCE dry cleaning equipment with other 20 machinery that does not use PCE. Dkt. No. 87, p. 6. Next, the California Air Resources Board 21

("CARB") passed regulations in 2006 phasing out the use of PCE by 2023. Id. While these two facts 22 do significantly decrease the possibility that further PCE contamination could occur, they do not 23

Angela's Cleaners has operated under three separate owners since 2000. For all the current record 25 before the court shows, in the next eleven years (before PCE must be entirely phased out), it is 26 possible that another owner could appear who would resume use of PCE at Angela's Cleaners. 27

now underway. Should this occur, plaintiff would continue to suffer harm despite there having been

(citing United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203, 21 L. Ed. 2d 18 "make it absolutely clear" that further contamination "could not reasonably be expected to occur." 24

Furthermore, it is possible that defendants could fail to complete the remediation process no additional PCE leakage by defendants. Indeed, the declaration of Daniel Matthews, senior 2 hydrogeologist for Geologica, the company overseeing the remediation process, establishes that the 3

DEH has not established "specific requirements for case closure." Dkt. No. 84 ¶ 4. Accordingly, the 4 fact that defendants probably will not allow any new PCE to leak into the soil does not meet the 5

Finally, defendants argue that the "primary jurisdiction doctrine" prevents this court from 7 asserting jurisdiction over the cleanup process. Dkt. No. 87, p. 9 (citing GTE.NET, L.L.C. v. Cox 8 "stringent" standard for establishing mootness based on a defendant's voluntary conduct. 6

Communs., Inc., 185 F. Supp. 2d 1141, 1144 (S.D. Cal. 2002) (holding that a court may "route the 9 threshold decision as to certain issues to the agency charged with . . . supervision or control of the 10 particular industry or activity involved")). In fact, although defendants first argue that plaintiff's claim is "barred" by this jurisdiction, they admit in their reply that the doctrine is both disfavored and discretionary. Dkt. No. 94, p. 8. In fact, a private citizen suit under 42 U.S.C. § 6972(a)(1)(B) is 13 not barred unless the State (1) "has commenced and is diligently prosecuting an action under 42 14

U.S.C.A. § 6972(a)(1)(B)," (2) "is actually engaging in a removal action under CERCLA'" (2) "or 15 has incurred costs to initiate a [Remedial Investigation and Feasibility Study] under section 104 of 16

CERCLA and is diligently proceeding with a remedial action under that act." Gilroy Canning Co. v. 17

California Canners & Growers, 15 F. Supp. 2d 943, 946 (N.D. Cal. 1998). None of these factors are 18 present in this case, and therefore, the court finds no basis for applying the primary jurisdiction 19 doctrine. 20

Accordingly, defendants' having made no viable argument that plaintiff's claims are now moot or were moot when the complaint was filed, defendants' motion is DENIED with respect to 22 mootness. The court now proceeds to the merits of plaintiff's RCRA claim. 23

Under RCRA, "any person may commence a civil action on his own behalf . . . against any

25 person . . . including any past or present generator, past or present transporter, or past or present 26 owner or operator of a treatment, storage, or disposal facility, who has contributed or who is 27 contributing to the past or present handling, storage, treatment, transportation, or disposal of any 28

3. Defendants' Liability under Sec. 6972(a)(1)(B) solid or hazardous waste which may present an imminent and substantial endangerment to health or 2 the environment." 42 U.S.C. § 6972(a)(1)(B). 3

"the conditions at the site may present an imminent and substantial endangerment;" (2) "the 5 endangerment stems from the handling, storage, treatment, transportation or disposal of any solid or 6 hazardous waste;" and (3) "the defendant has contributed or is contributing to such handling, 7 storage, treatment, transportation or disposal." Lincoln Properties v. Higgins, 1993 U.S. Dist. 8 F. Supp. 162, 199-200 n.22 (W.D. Mo. 1985)). 10

Section 6972(a)(1)(B) authorizes injunctive relief where the site conditions "may present an imminent and substantial endangerment to health or the environment." Courts conclude that this standard embraces a broad expanse of potentially threatening activity. Lincoln collects and analyzes 14 the relevant authority comprehensively. "May" is "'expansive language, which is intended to confer 15 upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate 16 any risk posed by toxic wastes.'" Lincoln, 1993 U.S. Dist. LEXIS 1251, *42 (quoting Dague v. City 17 of Burlington, 935 F.2d 1343, 1355 (2nd Cir. 1991) (internal quotations omitted)). Similarly, the 18 term "endangerment" includes potential, rather than merely actual, harm. "[E]ndanger means 19 something less than actual harm. When one is endangered, harm is threatened; no actual injury need 20 ever occur." Id. at *43 (quoting Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 13 21 (D.C. Cir. 1976), cert. denied, 96 S. Ct. 2662 (1976)). "A finding of 'imminence' does not require a 22 showing that actual harm will occur immediately so long as the risk of threatened harm is present." 23 1985)). Finally, the term "substantial" does not require quantification of the endangerment . . . .

[E]ndangerment is substantial if there is some reasonable cause for concern that someone or 26 something may be exposed to a risk of harm by a release or a threatened release of a hazardous 27 substance if remedial action is not taken. Id. (citing Conservation Chemical, 619 F. Supp. at 194). 28

To establish acclaim for injunctive relief under this section, the plaintiff must show that: (1)

LEXIS 1251, *31 (E.D. Cal. Jan. 21, 1993) (citing United States v. Conservation Chemical Co., 619 9 a. Site Conditions May Present an Imminent and Substantial Endangerment

Id. at 44 (citing United States v. Conservation Chemical Co., 619 F. Supp. 162, 199-200 (W.D. Mo. 24 Corners may present an imminent and substantial threat of harm ("endangerment") to human health. 3

Here, plaintiffs have established by undisputed evidence that the contamination at Fremont

The soil under Angela's Cleaners contains PCE soil vapor levels up to 70 times the commercial ESP 4 levels. The PCE has migrated onto the Mardesich property, where it exceeds the residential ESL 5 levels by a factor of 15. Although defendants argue that no one lives on the Mardesich property, this 6 does not eliminate the potential harm to human health, nor does it address the incredibly high PCE 7 levels under the Fremont Corners property, which pose an actual risk to the employees and 8 customers who work at or visit Fremont Corners shops. Plaintiffs need not prove that actual harm 9 exists on their land alone. Rather, the levels of PCE soil vapor on both properties far exceed 10 substantial endangerment under RCRA.

California's established limits for non-hazardous exposure to humans and do pose an imminent and 15 under RCRA. See 40 C.F.R. § 261.31 and Appendix VII to 42 C.F.R. Part 261; see also Lincoln, 16 1993 U.S. Dist. LEXIS 1251, *50. The PCE plume under Angela's Cleaners resulted from the 17 improper storage and/or disposal of PCE by the owners and operators of the dry cleaners. Chiao 18 admitted in her deposition that the PCE in her dry cleaning equipment would periodically run low, 19 requiring her to purchase new PCE to refill the dry cleaning equipment, and that she did not know 20 where the PCE went. All those who have evaluated the site for PCE contamination conclude that 21

Angela's Cleaner's is the source of the PCE plume under the store and on the Mardesich property. 22

Therefore, there is no dispute that the endangerment described above stems in part from the 23 handling, storage, and/or disposal of PCE, a hazardous waste. 24

Transportation, or Disposal of Hazardous Waste

Plaintiffs argue that Garnet Murray and Fremont Corners, Inc. are liable for the PCE 27 contamination because they contributed to the handling, storage, treatment, or disposal of PCE at 28

b. Endangerment Stems from Handling, Storage, Treatment, Transportation, or Disposal of a Solid or Hazardous Waste

The Environmental Protection Agency has determined that PCE is a "hazardous waste"

c. Defendant Contributed to the Handling, Storage, Treatment,

Fremont Corners. Defendants argue that they not should be held liable because neither of them 2 actually "contributed" to the handling, etc. of PCE at Angela's Cleaners. 3

4 remainder of the property as the sole shareholder of Fremont Corners, Inc. Defendants contend that 5

Garnet has not been on the premises for over 35 years and that she had no actual knowledge of any 6 relevant facts at any point throughout the history of PCE contamination at Fremont Corners. 7

Garnet Murray owns a 30% interest in Fremont Corners as an individual, and she owns the

Plaintiffs argue that both Garnet Murray and Fremont Corners, Inc. committed "passive inaction" by 8 failing to take any steps to correct the contamination for over three years following the first 9 environmental assessment in November 2006. "[P]assive inaction or studied indifference can create 10 liability under RCRA." Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 204 F. Supp. 2d 804, 810

(D.N.J. 2002) (citing U.S. v. Price, 523 F. Supp. 1055, 1071 (D.N.J. 1981), aff'ed, 688 F.2d 204 (3d

Cir. 1982)). "RCRA is not primarily targeted at punishing environmentally unsound acts, but rather

at reducing 'the generation of hazardous waste and . . . ensuring the proper treatment, storage and 14 disposal of that waste which is nonetheless generated.'" Id. at 810 (quotting Meghrig v. KFC 15 "potential culpability [is] irrelevant." Id. 17

Corners, Inc. knew of PCE contamination in 2006; and (2) the PCE vapor "in some form or 19 fashion," may have caused or may still be causing "further damage to the land and surrounding 20 environment." Id. at 811. Plaintiffs present evidence that the environmental analysis done in 2006 21 was directed to Mrs. Murray at "Fremont Center, Inc." See Jensen Decl., Exh. 7, p. 1. Defendants 22 have admitted that they took no steps to remediate the contamination until 2009. The court is not 23 prepared to hold as a matter of law that plaintiff's evidence establishes liability through passive 24 inaction or studied indifference, although it might well persuade a jury. 25

Murray and Fremont Corners, Inc. "contributed to" the contamination of Fremont Corners and the 27

Western, Inc., 516 U.S. 479, 483, 134 L. Ed. 2d 121, 116 S. Ct. 1251 (1996)). Therefore, an owner's 16 Here, as in Interfaith Community Org., it is undisputed that (1) Murray and Fremont

Accordingly, this court finds that a genuine issue of material fact exists as to whether Garnet

Mardesich property through passive inaction. Plaintiff's motion for summary judgment on liability 28 under RCRA is therefore DENIED.

3 not limited to . . . an obstruction to the free use of property, so as to interfere with the comfortable 4 enjoyment of life or property . . . ." Cal. Civ. Code § 3479. "Failure to clean up contamination 5 causing ongoing damage to property has been held to constitute such a nuisance." Resolution Trust 6 Corp. v. Rossmoor Corp., 34 Cal. App. 4th 93, 99 (Cal. App. 4th Dist. 1995). A landlord "cannot be 7 permitted to knowingly stand aside where it is shown that he has the power to remove the [nuisance] 8 from the premises." Uccello v. Laudenslayer, 44 Cal. App. 3d 504, 514 (Cal. App. 5th Dist. 1975). 9

Defendants first argue that because plaintiffs have not proven damages, they cannot seek

summary judgment on their nuisance claim. This argument fails because the Federal Rule 12 specifically provide that a party may move for partial summary judgment on one element of a claim.

B. Plaintiff's Nuisance Claim

A nuisance under California law is "[a]nything which is injurious to health, including, but

But, a duty of care may only be imposed upon a landlord if he knew of the nuisance. Id. 10 See Fed. R. Civ. P. 56(a). 14

Defendants next argue that because plaintiffs have not shown any conduct by Garnet Murray 15 and Fremont Corners, Inc. in furtherance of the nuisance, they cannot prevail on their claim. They 16 argue that plaintiff must show they were "active participants" in the activities that gave rise to the 17 nuisance. Dkt. 81, p. 14. Rather, on a claim for nuisance, a plaintiff must at least show (1) that the 18 landlord had actual knowledge of the nuisance-creating conduct; and (2) the landlord was negligent. 19

Plaintiff argues that defendants knew of the contamination but "willfully" ignored it. 21 22 plaintiff must show: "(1) the defendant owed the plaintiff a duty of due care; (2) the defendant 23 breached that duty; (3) the plaintiff suffered injury; and (4) the breach proximately caused the 24 injury." Id. at 101. "[A] commercial landowner cannot totally abrogate its landowner responsibilities 25 merely by signing a lease." Id. (quoting Mora v. Baker Commodities, Inc. 210 Cal. App. 3d 771, 781 26

(1989)). "[I]f a landlord has such a degree of control over the premises that it may fairly be 27 concluded that he [or she] can obviate the presence of the dangerous [condition] and he has 28 knowledge thereof, an enlightened public policy requires . . . imposition of a duty of ordinary care.

Resolution Trust Corp. v. Rossmoor Corp., 34 Cal. App. 4th 93, 100 (Cal. App. 4th Dist. 1995). 20

Neither party has squarely addressed the issue of negligence. To prove negligence, the To permit a landlord in such a . . . situation to sit idly by in the face of [a] known danger to others 2 must be deemed to be socially and legally unacceptable." Uccello v. Laudenslayer, 44 Cal. App. 3d 3 at p. 512 n. 7. 4 analyses generated in 2006 and 2007 warned of potential groundwater contamination. See Jensen 6 Jensen Decl., Exh. 7. While groundwater contamination has not actually occurred in this case, the 8 court concludes that repeated warnings of the risk of such contamination put defendants on notice 9 that the PCE contamination could spread and cause harm beyond the bounds of their property. 10 combined with their "control over the premises" and the ability to "obviate the presence of the dangerous [condition]" does give rise to a duty of ordinary care. Defendants' decision not to take any steps toward remediation constitutes a breach of that duty. Plaintiff has, in fact, suffered 14 contamination on the Mardesich property, which constitutes an injury.*fn4 Had defendants acted 15 promptly to begin remediation of the contamination on their own property, the contamination of 16 plaintiff's adjoining property would have been lessened or prevented, so defendants' breach 17 proximately caused plaintiff's injury.

is GRANTED. 20

a trespass. . . ." Martin Marietta Corp. v. Insurance Co. of North America, 40 Cal. App. 4th 1113, 23

1132 (Cal. App. 2d Dist. 1995) (citing Triscony v. Brandenstein 66 Cal. 514, 515 (1885). Failure to 24 clean up contamination causing ongoing damage to property "gives rise to an action for continuing 25 trespass." Resolution Trust Corp. v. Rossmoor Corp., 34 Cal. App. 4th 93, 99 (Cal. App. 4th Dist. 26

1995) (citing Mangini v. Aerojet-General Corp. 230 Cal. App. 3d 1125, 1133-1137 (1991)). The 27 negligence analysis as applied in claims for nuisance shall apply to claims for trespass as well. See 28

Accordingly, plaintiff's motion for summary judgment on the issue of liability for nuisance

C. Plaintiff's Trespass Claim

"[E]very wrongful entry upon lands in the occupation or possession of the owner constitutes Rancho Viejo v. Tres Amigos Viejos, 100 Cal. App. 4th 550, 562, n. 6 (Cal. App. 4th Dist. 2002) 2 (citing Rest.2d Torts, § 821D, com. e, p. 102). 3

Applying the same negligence analysis to this claim as it applied to plaintiff's nuisance 4 claim, above, the court concludes that plaintiff has established liability for trespass by the 5 defendants. The defendants' only argument in opposition is that there are other hazardous materials 6 on the Mardesich property that did not migrate from Fremont Corners. Dkt. No, 81, p. 15. The 7 presence of other hazardous materials on the Mardesich property is not the subject of this action and 8 has no bearing on the pending motions. 9

Accordingly, the plaintiff's motion for summary judgment on the issue of liability for trespass is GRANTED.


Based on the foregoing, IT IS ORDERED THAT:

1. Plaintiff's motion for summary judgment is GRANTED IN PART AND DENIED IN PART. 14

As plaintiff has settled with defendant Manlei Chiao, the motion is DENIED as MOOT as to all claims against Chiao. Plaintiff's motion is granted as to the issue of liability for plaintiff's claims for nuisance and trespass against Garnet Murray and Fremont Corners, Inc. Plaintiff's motion is denied as to the issue of liability for plaintiff's RCRA claim against Murray and Fremont Corners, Inc.

2. Defendants' motion for summary judgment is DENIED in its entirety. 20 21

C10-01807 HRL Notice will be electronically mailed to: W. Stephen Wilson Christopher Jensen 3 Nicole Martin R. Morgan Gilhuly 4 Douglas Barry Thomas Clarke, Jr. 5 Timothy Dolan Kwi Yee 6 Eleanor Knight Ralph Robsinson 7 Randall Lee Noel Edlin 8 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

United States Distric For the Northern District of California

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