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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 ...

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