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People of the State of California, et al v. Kinder Morgan Energy Partners

January 25, 2013


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

OMNIBUS ORDER ON MOTIONS EVIDENCE FOR SUMMARY JUDGMENT AND TO EXCLUDE EXPERT [Doc. Nos. 202, 203, 204, 205, 206, 207, 208, 210, 211, 212, 213, 214, 215 & 216]

This matter is before the Court following a hearing on the parties' pending dispositive motions. After further consideration of the moving papers, exhibits, and oral arguments, the Court affirms its tentative rulings as explained in further detail below and enters judgment in favor of Defendants Kinder Morgan Energy Partners, L.P., Kinder Morgan Management, L.L.C., Kinder Morgan Operating, L.P. "D," SFPP, L.P., Kinder Morgan G.P., Inc., and Santa Fe Pacific Pipelines, Inc. (collectively, "Kinder Morgan").


This action arises from events surrounding the contamination and prolonged remediation of soil and groundwater on approximately 166 acres of City-owned land surrounding and underlying Qualcomm Stadium in San Diego, California (the "Property"). [First Amended Complaint ("FAC"), Doc. No. 32 ¶ 26.] Kinder Morgan owns land adjacent to the Property, on which it operates the Mission Valley Terminal. [Id. ¶ 27.] The Mission Valley Terminal is an industrial facility engaged in the business of transporting, storing, and distributing petroleum products. [Id.] Since the 1960s, the Mission Valley Terminal has been the central hub of the gasoline distribution system in San Diego County.

The following facts are not reasonably in dispute. As early as 1992, the City was on notice that Kinder Morgan and its predecessors released petroleum products into the soil, contaminating the Property and groundwater. [Id. ¶ 30; Defs.' Stmt. of Uncontroverted Facts ("SUF") ¶ 1.] In 1992, the California Regional Water Quality and Control Board ("Water Board") ordered the investigation and remediation of contamination at the Mission Valley Terminal. Pursuant to this order, Kinder Morgan and its predecessors have spent approximately $60 million addressing the petroleum beneath the Property. Since 1992, the City has received copies of Kinder Morgan's reports to the Water Board, and has provided input in the Water Board's oversight of remediation efforts. [Id. ¶ 2.] Despite the contamination, the City has never cancelled a sporting event at the Property, lost use of the Property, or lost any revenue from operating the Property. [Id. ¶ 17.]

From 2001 through 2004, the City considered suing Kinder Morgan for damages allegedly caused by the contamination. [Id. ¶ 3.] In 2005, the Water Board issued Addendum No. 5 to its order, requiring Kinder Morgan to complete the soil remediation by December 31, 2010, and the groundwater remediation by December 31, 2013. [Add. No. 5 to CAO 92-01, Doc No. 206-4.] On August 14, 2007, the City sued Kinder Morgan, alleging that petroleum releases from the Mission Valley Terminal contaminated the Property and damaged the City. [Doc. No. 1.] The following claims remain: public nuisance, continuing private nuisance, continuing trespass, negligence, California Business and Professions Code section 17200, and declaratory relief. [Doc. Nos. 32, 97, 98.]


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 pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). "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); see also Robinson v. G.D. Searle & Co., 286 F. Supp. 2d 1216, 1221 (N.D. Cal. 2003) ("As the moving party not bearing the burden of proof at trial, Defendant may carry its burden of production on summary judgment by showing that there is an absence of admissible evidence that [its product] caused Plaintiff's injuries."). "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks and citations omitted).

"[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 & Cnty. of S.F., 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 249, 252). However, 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 Research Ltd., 475 F.3d at 1035 (citation omitted). The Court may not make credibility determinations or 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.


A. Kinder Morgan's Motion to Exclude the Expert Testimony of Mr. Ray Forrester

As a threshold matter, Kinder Morgan moves to exclude the testimony of the City's expert, Ray Forrester, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court finds that Forrester's opinion fails to satisfy the requirements of Daubert, and therefore GRANTS Kinder Morgan's motion.

1. Mr. Forrester's Opinion

The City retained Forrester as an expert to provide his opinion regarding the remediation efforts at the Mission Valley Terminal. Forrester is a chemical engineer with over 30 years of experience remediating contaminated sites. [See generally Forrester Rep., Doc. No. 206-4.]

Generally, Forrester opines that Kinder Morgan has not adequately remediated the Property, and that alternative technologies are better equipped to quickly and effectively remediate the site. Forrester's opinion rests, in large part, on the presupposition that both the groundwater and soil on the Property should be remediated to "background condition."*fn1 He is aware of the Water Board's remediation requirements, yet asserts that the goals of the Water Board and those of the City as a landowner are not the same. Forrester states:

The goals of the [Water Board] and those of a landowner who has been impacted by contamination from an off-site source may be similar but not the same. The Water Board has goals designed to address the interest of the state and community as a whole. The impacted landowner has concerns about the safety of those accessing their property, their property value, and its usability. Each of these three factors is heavily impacted by the time required to remedy the contamination that has migrated onto their property. . . . Just because [Kinder Morgan's] actions may have been approved by the [Water Board] doesn't mean that the [Water Board] would not have approved more responsive and timely attempts to address the contamination. . . . The distinction between the [Water Board's] goals and those of the City of San Diego is integral to understanding the points made in my opinions provided below. [Forrester Rep., Doc. No. 221-7 at 11.]

Forrester's report contains the following eleven opinions: 1. The Mission Valley Basin is an identified resource to meet the City of San Diego's long-term water supply and storage needs.

2. Petroleum impacts resulting from releases from the Mission Valley Terminal have impacted the City of San Diego's property and the Mission Valley Basin, which represents a long-term water supply and storage source for the City of San Diego.

3. Petroleum releases have occurred at the Mission Valley Terminal prior to, during, and since 2005, and will likely continue to occur into the future. These ongoing releases have affected the groundwater and soils on the City of San Diego's property and will likely impact groundwater in the future.

4. Releases from the Mission Valley Terminal have occurred since the initial 1987 response plan to address petroleum impacts. These releases have contributed further to the contamination and resulted in larger quantities of petroleum requiring remediation, and have extended the duration of remediation.

5. The remediation technologies selected at the site were not implemented in a timely manner. The remediation plan described in the October 1999 CAP was not sufficiently responsive to address then-known contamination by the completion date(s) required in the Order and subsequent addenda.

6. The Defendant's current remediation approach has not met their December 31, 2010, deadline to achieve specified target levels in the CAP, and will not meet their December 31, 2013, scheduled deadline.

7. Contingency plans identified by the Defendant's consultants as feasible to reduce the scheduled remediation times and achieve remediation deadlines have not been implemented.

8. If the contingency plans recommended by the Defendant's consultants were implemented in a reasonable time after being proposed, the actions would have reduced the time required for remediation.

9. If the contingency plans recommended by the Defendant's consultants are implemented, they would reduce contaminant mass at the site, reduce the time required to achieve remediation endpoints, and increase the likelihood of reaching background.

10. The approximate cost to implement the (Steam Enhanced Extraction) SEE in the source area of the Qualcomm site, which will assist in returning the remediation to its planned schedule of December 31, 2013, is $19.2 million.

11. The approximate cost to remediate the downgradient dissolved (Methy tertiary butyl ether) MTBE and (tertiary butyl alcohol) TBA plume could range from current approach being taken by Kinder Morgan (cost unknown) to $107 million, depending upon the type of technology chosen, time required to reach background groundwater concentrations, and the certainty of the treatment technology's ability to treat those concentrations.

[Id. at 3-4 (original formatting omitted).]

2. Legal Standard

Federal Rule of Evidence 702 governs the admissibility of expert testimony. Pursuant to Rule 702, a witness qualified as an expert in "scientific . . . knowledge" may testify thereto if "(1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods to the facts of the case." Fed. R. Evid. 702.

The trial court acts as a gatekeeper to the admission of expert scientific testimony under Rule 702. Daubert, 509 U.S. at 579-80. The Court must conduct a preliminary assessment to "ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable." Id. at 589. This two-step assessment requires consideration of whether (1) the reasoning or methodology underlying the testimony is scientifically valid (the reliability prong); and (2) whether the reasoning or methodology properly can be applied to the facts in issue (the relevancy prong). Id. at 592-93; Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998).

The Daubert analysis focuses on the principles and methodology underlying an expert's testimony, not on the expert's conclusions. Daubert, 509 U.S. at 595. However, the Supreme Court has cautioned that "conclusions and methodology are not entirely distinct from one another." Gen. Elec. v. Joiner, 522 U.S. 136, 146 (1997). As such, "[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Id. Nothing in either Daubert or the Federal Rules of Evidence requires the admission of opinion evidence connected to existing data "only by the ipse dixit of the expert." Id.

3. Analysis

First, Kinder Morgan asserts that Forrester is not sufficiently qualified as an expert to provide an opinion on certain aspects of the remediation efforts and technologies. The Court disagrees. Forrester received his Bachelor of Science degree in chemical engineering from the Missouri University of Science and Technology in May 1972. He has been actively involved in remediation of contaminated sites since 1980. During this time period, he has investigated and evaluated potential remedies, designed remediation programs, and implemented remediations at numerous sites throughout the United States. The Court is satisfied that Forrester's experience with petroleum releases and remediation practices, together with his general knowledge of chemical engineering, adequately qualifies Forrester opine on the remediation efforts at the Property.

Kinder Morgan next challenges the admissibility of Forrester's report and testimony on the ground that his proffered opinions fail to meet the standard set forth by the Supreme Court in Daubert-that expert testimony must be "not only relevant, but reliable." Daubert, 509 U.S. at 589 (emphasis added).

a. Daubert Standard

i. Reliability

Under the first prong of the Daubert analysis, the Court must determine whether the proffered testimony is reliable. Reliable testimony must be grounded in the methods and procedures of science and signify something beyond "subjective belief or unsupported speculation." Daubert, 509 U.S. at 590. The inferences or assertions drawn by the expert must be derived by the scientific method. Id. In essence, the Court must determine whether the expert's work product amounts to "good science." Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) ("Daubert II") (quoting Daubert, 509 U.S. at 593). In Daubert, the Supreme Court outlined a flexible list of factors relevant to the reliability prong, including: (1) whether the theory can be and has been tested; (2) whether it has been subjected to peer review; (3) the known or potential rate of error; and (4) whether the theory or methodology employed is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94.

A methodology may not be reliable if an expert "fail[s] to address and exclude alternative explanations for the data on which he bases his findings" or "reject[s] studies reporting contrary empirical findings." Carnegie Mellon Univ. v. Hoffman--LaRoche, Inc., 55 F. Supp. 2d 1024, 1034-35 (N.D. Cal. 1999). In addition, a court may exclude expert testimony on the ground that an expert's purported methodology fails to explain his final conclusion. See Joiner, 522 U.S. at 146 ("[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.").

The essence of Forrester's opinion is that Kinder Morgan's remediation efforts at the Property have been insufficient. This opinion presupposes that "background conditions" is the proper cleanup standard. If not, however, then Forrester's opinion is based on an erroneous presupposition, rendering it irrelevant and unreliable. Thus, before proceeding further, the Court must consider why Forrester believes background is the proper cleanup standard.

The City's argument in favor of cleanup to background is straightforward: under California Civil Code section 3334(a), in cases of trespass, the wrongful possessor of property must pay the reasonable cost of repairing or restoring the property to its original condition. Cal. Civ. Code § 3334(a). The City believes the Property enjoyed background conditions prior to petroleum releases; thus, it follows that Kinder Morgan should remediate the Property to that condition.

There are several fundamental flaws with this argument. First, Forrester does not provide adequate scientific analysis demonstrate condition of the Property prior to the releases. Forrester has not undertaken any tests, or considered any data, to ensure that the Property actually enjoyed background conditions prior to the releases. Forrester admits he did not know the condition of the groundwater prior to any release from the Mission Valley Terminal, and he did not investigate that factor when determining that the remediation goal should be to background. [Forrester Dep., Doc. No. 208-3 at 74.]

In an attempt to overcome this shortcoming, Forrester stated at his April 12, 2012, deposition that "there are samples results from the data that indicate that [] there are areas where petroleum constituents, even today, are not detected. So that would give me the indication that historically, apart from the Mission Valley Terminal releases, that the general groundwater quality at the site would be non-detect for petroleum hydrocarbons." [Id. at74:20-75:5.] On further examination, however, Forrester admitted he had no data supporting his opinion that the Property's groundwater would not have some level of petroleum contamination prior to Kinder Morgan's releases. [Id. at 75:6-16.] But in a declaration filed concurrently with the City's Opposition on July 23, 2012, Forrester stated that "data [has] been collected by the Defendant's consultants since December 1986 that have consistently shown areas in . . . the [Mission Valley Terminal] property and in the Off-Terminal area . . . where background conditions exist." [Forrester Decl., Doc. No. 225-1 at 7.] Regardless of its veracity, this statement does not rehabilitate Forrester's deposition testimony. Forrester had no factual basis to support his opinion at the time he created his expert report. Indeed, the expert report, completed July 29, 2011, included no data to support Forrester's opinion of the prior condition of the Property, which Forrester admitted during his April 12, 2012 deposition. As the Court must determine whether Forrester's expert report is admissible, it must consider the facts relied on by Forrester in reaching the conclusions found therein. As the above timeline suggests, Forrester had none. This post hoc style of analysis casts serious doubt on Forrester's opinion.

Next, Forrester does not cite any applicable law which entitles the City to have the land remediated to background, or even state that it is common practice in the remediation industry to remediate to that extent. Instead, when asked at his deposition why remediation to background is appropriate, Forrester responded: "[In] [m]y opinion, a landowner has a right to expect that their property, when it's contaminated, would be returned to an acceptable condition. In this case, [the City's] qualification is that it be returned to background . . . ." [Forrester Dep. at 78 (emphasis added).] Forrester continues, "in most cases, parties will clean to the level that they can resolve the matter with the agency." [Id. (emphasis added).] In the end, Forrester "believes [] landowners that are impacted should have their day in court and be [] able to have expectations." [Id. (emphasis added).]

Based on the above, the Court finds that Forrester's opinions are based on his personal, subjective opinion that the City should have its expectations met, rather than any authority or scientific principles. Under Daubert, the inferences or assertions drawn by the expert must be derived by the scientific method. Daubert, 509 U.S. at 590. This did not occur here. Accordingly, Forrester's adherence to the City's "expectations" as the basis for his opinion cannot reasonably be considered a methodology generally accepted in the relevant scientific community. On the contrary, all signs--even from Forrester himself--point to a directly opposite finding. For instance: (1) never before has Forrester opined that background conditions is the required cleanup standard; (2) the Water Board does not require remediation to background conditions; and (3) Forrester is not aware of any petroleum site in California--or the country for that matter--where the stated goal has been to remediate to background. [Forrester Dep. at 61:24-62:5.]

The final issue with the reliability of Forrester's opinion is the internal inconsistency found within his testimony. For instance, his report outlines the Steam Enhanced Extraction ("SEE") technology as the preferred technology to remediate the site. [See Forrester Rep. at 22-23.] Forrester went so far as to say "a technology such as SEE is the only type of technology capable of reducing concentrations of both MTBE and TBA to background with a high degree of certainty and in a relatively short period of time." [Id. at 25-26 (emphasis added).] Yet, as the City acknowledges, Forrester later withdrew his opinion that SEE would be appropriate at the site. [Pl.'s Opp. at 14.] Certainly, experts may withdraw opinions; however, an expert's written report must contain "a complete statement of all opinions the witness will express and the basis and reasons for them." Fed. R. Civ. P. 26(a)(2)(B)(i). Forrester currently opines that Electric Resistance Heating ("ERH") technology should be used to clean the Property. However, through Forrester briefly mentioned ERH in his report, he did not analyze it or give an overall opinion as to its helpfulness at the Mission Valley Terminal. What remains, then, is an expert report which claims that Kinder Morgan has improperly remediated the site, without laying out any specific alternative.*fn2 Though not singularly fatal, this flaw provides further indicia of the unreliability of Forrester's opinion.

In sum, the Court's task is to ensure that an "expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). In this case, the lack of support for Forrester's opinion indicates that he is not employing the same level of intellectual rigor of someone in his field, as his conclusions are predetermined by unsupported presuppositions. Therefore, the Court finds that Forrester's report, insofar as it relies on his presupposition that remediation must be to background, is unreliable under Daubert.

ii. Relevance

The second prong of the Daubert analysis requires the Court to consider the relevancy, or "fit" of the expert's proffered testimony. Daubert II, 43 F.3d at 1315 (quoting Daubert, 509 U.S. at 597). In other words, the Court must determine whether the testimony "logically advances a material aspect of the proposing party's case." Id. Relevancy requires the opinions to assist the trier of fact in reaching a conclusion necessary to the case. See Kennedy, 161 F.3d at 1230; Daubert, 509 U.S. at 591-92; Daubert II, 43 F.3d at 1231 n.17 (relevancy for purposes of Daubert is distinct from general relevancy principles under Federal Rule of Evidence 402).

Kinder Morgan argues that Forrester's opinion is entirely irrelevant as it is "based on the inapplicable criteria that the remediation technologies employed need to meet background for petroleum hydrocarbons." [Defs.' Reply at 1.] The City counters that Forrester's opinion is relevant because the City is entitled to full compensation for the damages that have occurred. Specifically, the City argues that, "[Kinder Morgan] ignores the fact that the City is statutorily entitled to 'the reasonable cost of repair or restoration of the property to its original condition.'" [Pl.'s Opp. at 9 (citing Cal. Civ. Code § 3334(a)).]

Because Forrester's opinion has been deemed unreliable, the relevancy of his opinion is minimal. Further, as discussed above, Forrester has not provided sufficient analysis demonstrating that the Property enjoyed background conditions prior to Kinder Morgan's releases. Therefore, the City's claim that Forrester's opinion is relevant to damages puts the cart before the horse: if there is no evidence showing causation, damages need not be considered. In sum, Forrester's testimony is both unreliable and irrelevant.

b. Reliability of Opinion 3

Opinion 3 of Forrester's report provides that releases occurred prior to, during, and after 2005 that subsequently reached City property. This claim is significant, as several of the City's substantive claims are time-barred absent such evidence. Kinder Morgan argues that this opinion should be excluded as unreliable, based on Forrester's contradictory statements on this issue at different stages of the litigation.

For instance, in his July 2011 Expert Report, Forrester states that, "[p]etroleum releases have occurred at the Mission Valley Terminal prior to, during, and since 2005, and will likely continue to occur into the future. These ongoing releases have affected the groundwater and soils on the City of San Diego's property and will likely impact groundwater in the future." [Forrester Rep., Doc. No. 221-7 at 13.]

Next, in his Expert Rebuttal Report, dated December 2, 2011, Forrester backs down somewhat from his earlier statement, saying: "It is my opinion that [a contrary expert's opinion that releases did not reach the property] . . . cannot be stated with absolute certainty." [Forrester Rebuttal Rep., Doc. No. 208-3 at 182.]

Finally, in Forrester's deposition on April 26, 2012, the following exchange occurred:

Q. Okay. Do you hold any opinions regarding releases that occurred from the Mission Valley Terminal that reached the City property from 1994 -- I'm sorry -- 1995 to August of 2004?

A. There were releases described in some of the documents that I read. As to whether I have an opinion about whether they reached the facility, I don't have direct connection to the fact that they reached the facility.

Q. [D]o you hold opinions regarding releases that occurred on the Mission Valley Terminal that reached the City's property between 2004 and the present -- I'm sorry -- between August of 2004 and the present?

A. No. . . . .

Q. When you say "release," you're talking about some new incident; correct?

A. That's correct.

[Forrester Dep., Doc. No. 213-3 at 197-99 (emphasis added).] Perhaps providing the reason for the inconsistencies, Forrester finally states that he views "any releases from the MVT facility as a release to the Qualcomm property." He believes so without any supporting evidence that releases actually reached the Property, and despite admitting that many of the releases identified were negligible and occurred some 200 feet away from the Property. [Forrester Rebuttal Rep. at 13; Forrester Dep. at 195:10-13.]

At the motion hearing, the City argued that Forrester's statements are not internally inconsistent, but turn on the nuance that although Forrester did not know when the releases occurred on Kinder Morgan's property, he was still certain that releases reached the Property within the applicable time period. The City's strained interpretation of Forrester's opinion is not convincing. Forrester explicitly stated that he had no opinion whether releases occurring prior to, during, and after 2005 reached the City's property.

To be admitted, expert testimony must reflect "more than subjective belief or unsupported speculation," Daubert, 509 U.S. at 590, and must be "based on sufficient facts or data." Fed. R. Evid. 702(b). "When an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot support a jury's verdict." Abarca v. Franklin Cnty. Water Dist., 813 F. Supp. 2d 1199, 1204 (E.D. Cal. 2011). Based on Forrester's ever-evolving opinion, the Court determines that Opinion 3 is not reliable. Forrester provides no evidence to support his opinion that releases prior to, during, and after 2005 reached the City's property.

4. Conclusion

For the foregoing reasons, the Court GRANTS Kinder Morgan's motion and excludes the testimony Ray Forrester under Federal Rule of Evidence 702 and Daubert.

B. Kinder Morgan's Motion for Partial Summary Judgment on the City's Negligence

Claim and Prayer for Punitive Damages

Kinder Morgan also moves for partial summary judgment on the City's negligence claim and prayer for punitive damages. The City did not file an opposition and did not provide an explanation for not doing so. Because Kinder Morgan adequately contends that it is entitled to summary judgment on the negligence claim and prayer for punitive damages, the Court GRANTS Kinder Morgan's motion.

1. Negligence Claim

Kinder Morgan argues the City is unable to prove the "causation" element of its negligence claim because the City lacks expert evidence that releases on the Mission Valley Terminal reached the Property. Thus, Kinder Morgan argues it is entitled to summary judgment because the City cannot establish an essential element of its negligence claim at trial. The Court agrees.

a. Legal Standard

i. Unopposed Summary Judgment Motions

Federal Rule of Civil Procedure 56(e) permits a district court to consider unopposed facts admitted for purposes of the motion and further allows a court to "grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(2)-(3).*fn3 Summary judgment should not be entered merely because a party fails to file an opposition, and the Court still must analyze whether the moving party adequately contends the absence of triable issues of fact. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993); see also Scarff v. Intuit, Inc., 318 Fed. App'x 483, 486 (9th Cir. 2008).

ii. Proof of Causation

Under California law, "[t]he elements of an action for negligence are the existence of duty . . . ; breach of duty . . . ; causation (between the defendant's act or omission and the plaintiff's injuries); and damages." Merrill v. Navegar, Inc., 28 P.3d 116, 139 (Cal. 2001) (emphasis added). "[T]he burden falls on the plaintiff to establish causation" in tort cases. Rutherford v. Owens-Illinois, 941 P.2d 1203, 1214 (Cal. 1997).

iii. When Expert Evidence is Required

"Where the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation." Garbell v. Conejo Hardwoods, Inc., 122 Cal. Rptr. 3d 856, 861-62 (Cal. Ct. App. 2011). "This rule, however, applies only to such facts as are peculiarly within the knowledge of such professional experts and not to facts which may be ascertained by the ordinary use of the senses of a non-expert." Easton v. Strassburger, 199 Cal. Rptr. 383, 393 (Cal. Ct. App. 1984) (citation omitted).

In environmental cases, such as this one, laypersons can supply "substantial evidence" if their statements are based on non-technical observations. McCoy v. Gustafson, 103 Cal. Rptr. 3d 37, 71 (Cal. Ct. App. 2009) ("Statements of area residents who are not environmental experts may qualify as substantial evidence if they are based on relevant personal observations or involve 'non-technical' issues.") (citations omitted). However, if the matter ...

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