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Coppola v. Smith

United States District Court, E.D. California

March 26, 2013

VIOLA COPPOLA, et al., Plaintiffs,
v.
GREGORY SMITH, et. al., Defendants

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For Viola Coppola, Gary Coppola, The Trust of Anthony M. Coppola, Plaintiffs, Cross Defendants, Counter Defendants: Brett Andrew Boon, LEAD ATTORNEY, Greben and Associates, Santa Barbara, CA; Jan A. Greben, Greben & Associates, Santa Barbara, CA.

For Gregory Smith, Richard Laster, Defendants, Cross Defendants, Counter Claimants, Cross Defendants: Lori J. Gualco, Gualco Law, Sacramento, CA.

For Jane Nash, as Trustee of the Jane Higgins Nash Trust, Jane Nash, as Executor of the Estate of Decatur Higgins also known as The Estate of Mabel Elaine Higgins, Defendants: Steven Ray Williams, Williams, Jordan & Brodersen LLP, Visalia, CA.

For Martin and Martin Properties, Defendant: Emily L. Murray, LEAD ATTORNEY, Allen Matkins Leck Gamble Mallory & Natsis LLP, Los Angeleas, CA.

For Cal Water Service Company, Defendant: Noah P. Perch-Ahern, LEAD ATTORNEY, Glaser Weil, et. al. LLP, Los Angeles, CA; Patrick S Schoenburg, LEAD ATTORNEY, Wood, Smith, Henning & Berman LLP, Fresno, CA; David F Wood, Wood, Smith, Henning & Berman LLP, Los Angeles, CA.

For City of Visalia, Defendant: Leonard Charles Herr, LEAD ATTORNEY, Dooley, Herr and Peltzer & Richardson, Attorneys at Law, LLP, Visalia, CA.

For Richard Laster, individually, and formerly doing business as Paragon Cleaners, Gregory Smith, Individually Doing business as Paragon Cleaners, Gregory Smith, Cross Claimants: Lori J. Gualco, Gualco Law, Sacramento, CA.

For The Jane Higgins Nash Trust, Cross Claimant: Steven Ray Williams, Williams, Jordan & Brodersen LLP, Visalia, CA.

For Jane Higgins Nash, as Trustee of the Trust in the Estate of Mabel Elaine Higgins, deceased, The Trust in the Estate of Mabel Elaine Higgins, deceased, Cross Defendants: Steven Ray Williams, LEAD ATTORNEY, Williams, Jordan & Brodersen LLP, Visalia, CA.

For Richard Laster, Richard Laster, individually, and formerly doing business as Paragon Cleaners, Cross Claimants: Lori J. Gualco, Gualco Law, Sacramento, CA.

For Jane Nash, as Executor of the Estate of Decatur Higgins, The Jane Higgins Nash Trust, Richard P. Nash, Successor Co-Trustee of The William P. Nash Jr. and Jane H. Nash Revocable Trust, Cross Defendants: Steven Ray Williams, LEAD ATTORNEY, Williams, Jordan & Brodersen LLP, Visalia, CA.

For Jane Nash, as Executor of the Estate of Decatur Higgins, Cross Claimant, Counter Claimant: Steven Ray Williams, Williams, Jordan & Brodersen LLP, Visalia, CA.

For Viola Coppola, Cross Defendant: Brett Andrew Boon, LEAD ATTORNEY, Greben and Associates, Santa Barbara, CA; Jan A. Greben, Greben & Associates, Santa Barbara, CA.

For Gregory Smith, Richard Laster, individually, and formerly doing business as Paragon Cleaners, Counter Claimants: Lori J. Gualco, Gualco Law, Sacramento, CA.

For Richard Laster, individually, and formerly doing business as Paragon Cleaners, Cross Claimant: Lori J. Gualco, Gualco Law, Sacramento, CA.

For Gregory Smith, Gregory Smith, Individually, Cross Claimants, Counter Claimant: Lori J. Gualco, Gualco Law, Sacramento, CA.

OPINION

Anthony W. Ishii, SENIOR UNITED STATES DISTRICT JUDGE.

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ORDER ON DEFENDANTS' MOTIONS TO DISMISS & MOTION TO JOIN NECESSARY PART (Doc. Nos. 53, 54, 71, 78)

This is an environmental law case that arises from the chemical contamination of

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property associated with a dry cleaning business. Plaintiffs (collectively " Coppola" ) have brought suit against the City of Visalia (" the City" ), and the California Water Service Company (" Cal Water" ), and owners and former owners of nearby properties, including Martin and Martin Properties (" Martin" ). The active complaint is the Third Amended Complaint (" TAC" ). The TAC alleges 15 causes of action: (1) the federal Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.) (" CERCLA" ); (2) the California Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health and Safety Code § 25300 et seq.) (" HSAA" ); (3) negligence; (4) negligence per se; (5) private nuisance; (6) nuisance per se; (7) contribution; (8) indemnification; (9) continuing trespass; (10) Water Code § 13350; (11) waste; (12) public nuisance; (13) public nuisance per se; (14) declaratory relief; and (15) dangerous condition of public property. Before the Court are three motions to dismiss and one motion to join a necessary party, which have been brought by three defendants -- the City, Cal Water, and Martin. For the reasons stated below, the motions to dismiss will be granted, but the motion to join will be denied.

BACKGROUND

From the TAC, Coppola owns the real property and the dry cleaning business, One Hour Martinizing, located at 717 West Main Street (" 717 W. Main" ), Visalia, California.

Since 1995, Martin has owned the real property located at 110 North Willis Street (" 110 N. Willis" ), Visalia, California. 110 N. Willis currently houses office space and is located within 0.08 miles of 717 W. Main. Millers Dry Cleaners previously operated at 110 N. Willis and was owned by Defendants Harley and Cheryl Miller. Based on judicially noticed documents, Millers Dry Cleaners began operation in 1959. See Martin Request For Judicial Notice (" Martin RJN" ) Ex. C § 2.3. Millers Dry Cleaners is no longer in operation at 110 N. Willis.

At 119 South Willis Street (" 119 S. Willis" ), Visalia, California is another dry cleaning facility, Paragon Cleaners. 119 S. Willis is located 0.1 miles from 717 W. Main. [1]

Cal Water owns and operates public drinking water systems throughout California, including the City. Cal Water owned and operated Well CWS 02-03 (" the Well" ) until 2005, at which time it was abandoned by Cal Water. The Well is adjacent to 717 W. Main.

On October 28, 2009, the California Department of Toxic Substances Control (" DTSC" ) informed Coppola that it was investigating the occurrence of tetrachloroethylene, also known as perchloroethylene (" PCE" ), in the soil and groundwater at 717 W. Main. PCE is a hazardous substance. [2] Apparently, it was later determined that the soil and groundwater both at and near 717 W. Main was contaminated with PCE.

Coppola alleges that the PCE was released due to the dry cleaning activities at 119 S. Willis and 110 N. Willis. Coppola also alleges that the City owns and operates the sewer system at and around 717

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W. Main. The operation of the sewer system led to the release of PCE. The sewer main and appurtenances from 717 W. Main have breaks, cracks, leaks, sags, and/or defective joints, which permitted the PCE to escape and spread into the environment. Finally, Coppola contends that Cal Water's operation of the Well led to the release of PCE. Prior to Cal Water abandoning the Well, PCE concentrations were above the Method Detection Limit. Cal Water's operation of the Well caused PCE to move to previously uncontaminated areas beneath the water table, which exacerbated the contamination plume.

Coppola seeks damages from the Defendants, including contribution and indemnification, associated with soil and groundwater contamination.

LEGAL FRAMEWORK

Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's " failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). However, the Court is not required " to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). To " avoid a Rule 12(b)(6) dismissal, " a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. The Ninth Circuit has explained Iqbal and Twombly :

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally limited to reviewing only the complaint, but it may take judicial notice of public records outside the pleadings, review materials which are properly submitted as part of the complaint, and review documents that are incorporated by reference in the Complaint if no party questions their authenticity. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a Rule 12(b)(6) motion is granted, " [the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not

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possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). In other words, leave to amend need not be granted where amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).

I. Martin's Motion To Dismiss

1. 1st Cause of Action -- CERCLA

Defendant's Argument

Martin argues that Coppola has failed to properly allege a CERCLA § 9607(a) claim for several reasons. First, there are no facts alleged that show a release or a threatened release of any hazardous substance from Martin's property. [3] Second, Coppola has not alleged that a release or threatened release caused Coppola to incur response costs that were necessary and consistent with the national contingency plan. That is, there is no nexus between any release from the Martin property and the costs incurred by Coppola. Third, the TAC is little more than a bare recitation of legal elements that do not show what, where, or when hazardous substances were released from the Martin property. Fourth, Coppola is barred from asserting a cause of action under § 9607(a), but instead is limited to contribution under § 9613(f), because the costs incurred by Coppola were compelled by a settlement/administrative order. Finally, because the § 9607(a) claim fails, the dependent § 9613(g)(2) claim also fails.

Plaintiff's Opposition

Coppola argues that a prima facie § 9607(a) case has been properly alleged. The TAC alleges that 110 N. Willis is a facility. The TAC alleges that a release of hazardous substances occurred during the operations of Cheryl and Harley Miller. The TAC alleges that DTSC was investigating the presence of hazardous substances at 717 W. Main and that necessary response costs, including investigative and remediation expenses, were incurred pursuant to DTSC oversight. Martin is the current owner of 110 N. Willis. Finally, because the TAC properly alleges a § 9607(a) claim, a claim for declaratory relief under § 9613(g) is proper.

Coppola also argues that they voluntarily entered into the administrative order with DTSC and without resolution of their liability. Because the order was voluntary and no liability was resolved, § 9613(f) does not apply.

Legal Standards

a. CERCLA § 9613(f)(3)(B)

Section 9613(f)(3)(B) permits a " 'person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement' to seek contribution from any person who has not so resolved their liability." Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011). Although the Ninth Circuit does not appear to have addressed the issue, most courts hold that persons who have resolved their CERCLA liability to the United States or a State in an administrative or judicially approved settlement may only bring a contribution claim under § 9613(f), and may not bring a claim under § 9607(a). E.g. Bernstein v. Bankert, 702 F.3d 964, 978-79 (7th Cir. 2012). However, in order for § 9613(f)(3)(B) to apply, the purported settlement

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must resolve CERCLA liability, resolution of only state law liability is insufficient. See W.R. Grace & Co. -- Conn. v. Zotos Int'l, Inc., 559 F.3d 85, 91 (2d Cir. 2009); Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90, 95-96 (2d Cir. 2005); Trinity Indus. v. Chi. Bridge & Iron Co., 867 F.Supp.2d 754, 761 (W.D. Pa. 2012); Differential Development-1994, Ltd. v. Harkrider Distrib. Co., 470 F.Supp.2d 727, 739 & n.13 (S.D. Tex. 2007).

b. CERCLA § 9607(a)

To establish a prima facie claim for recovery of response costs under § 9607(a), a private-party plaintiff must demonstrate: (1) the site on which the hazardous substances are contained is a " facility," as defined by CERCLA § 9601(9); (2) a " release" or " threatened release" of any " hazardous substance" from the facility has occurred; (3) such " release" or " threatened release" has caused the plaintiff to incur response costs that were " necessary" and " consistent with the national contingency plan" ; and (4) the defendant is within one of four classes of persons subject to the liability provisions of § 9607(a). City of Colton v. Am. Promotional Events, Inc.-West, 614 F.3d 998, 1002-03 (9th Cir. 2010); Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 870-71 (9th Cir. 2001). A " release" means " any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment . . . ." 42 U.S.C. § 9601(22). CERCLA imposes strict liability for environmental contamination upon four broad classes of " potentially responsible parties" :

(1) the owner and operator of a vessel or a facility;
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of;
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances; and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance . . . .

42 U.S.C. § 9607(a)(1)-(4); Burlington Northern & Santa Fe Ry. v. United States, 556 U.S. 599, 608-09, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009). CERCLA's provisions are to be given a liberal construction and interpretation. See Hanford Downwinders Coalition v. Dowdle, 71 F.3d 1469, 1481 (9th Cir. 1995); 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1363 (9th Cir. 1990).

A plaintiff need not allege the particular manner in which a " release" or " threatened release" has occurred, but a plaintiff must describe the specific response costs that have been incurred. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1153-54 (9th Cir. 1989). A private plaintiff (i.e. not the United States, a State, or an Indian Tribe) must prove that the response costs are consistent with the national contingency plan. Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 950 (9th Cir. 2002); Washington Dept. of Transp. v. Washington Natural Gas Co., 59 F.3d 793, 799-800 (9th Cir. 1995). " Response costs are considered 'necessary'

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when 'an actual and real threat to human health or the environment exists,'" and are considered " 'consistent with the [national contingency plan] if the action, when evaluated as a whole, is in substantial compliance with it." City of Colton, 614 F.3d at 1003. Further, a complaint should include a description of the " facility" (including the location and activity of the " facility" ), the kind(s) of hazardous substances that were " released" or are " threatened to be released" from the " facility," the time frame of any releases, arrangements, or disposals, and, if known, whether a site has been declared a hazardous waste site. See 42 U.S.C. § 9607(a); Ascon Properties, 866 F.2d at 1156; Arkema, Inc. v. Anderson Roofing Co., 719 F.Supp.2d 1318, 1332 (D. Or. 2010). Finally, the complaint should allege sufficient facts to show that a defendant is one of the four classes of " potentially responsible parties." See Long Beach Unified Sch. Dist. v. Dorothy B. Godwin Living Trust, 32 F.3d 1364, 1366-70 (9th Cir. 1994) (upholding Rule 12(b)(6) dismissal where the owner of an easement was not one of the four types of potentially responsible parties).

Discussion

a. Application of § 9613(g)(2)

Coppola entered into an Imminent and Substantial Endangerment Order (" Consent Order" ) with DTSC in June 2011. See Martin RJN Ex. A. The Consent Order explains the DTSC's statutory authority, identifies PCE as a hazardous substance that is endangering the area, requires studies and clean up efforts by Coppola, and provides for penalties for non-compliance. Nevertheless, the Consent Order does not appear to resolve or even address CERCLA liability. See id. It appears that the Consent Order mentions CERCLA twice. See id. at ¶ ¶ 5.2, 7.0. [4] Those paragraphs deal with either required studies (¶ 5.2) or the contents of defenses to be included as part of a notice of intent to comply (¶ 7.0). Neither paragraph addresses CERCLA liability. See id. Further, the Consent Order states that it does not constitute " a satisfaction or release from liability," and that DTSC expressly does not waive the right to take " any further actions authorized by law." See id. at ¶ ¶ 6.9, 6.15. Without language that actually deals with CERCLA liability, the Consent Order at best appears to address only state law issues. [5] Because Martin has not shown that the Consent Order settles any CERCLA liability to the state of California, § 9613(f)(3)(B) does not apply and dismissal is inappropriate. See W.R. Grace, 559 F.3d at 91; Trinity Indus., 867 F.Supp.2d at 761.

b. Sufficiency of Allegations for § 9607(a) Liability

With respect to the first element, the TAC alleges that 110 N. Willis was once an operational dry cleaning business, and is a " facility" as defined by § 9601(14). See TAC ¶ ¶ 24, 25, 42. The term " facility" is broadly defined and includes " any building, structure, installation, equipment, pipe,

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pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, etc." 42 U.S.C. § 9601(9). Martin does not challenge the adequacy of these allegations, nor does Martin argue that 110 N. Willis is not a " facility." Accordingly, the first element has been adequately pled. [6] See Ascon Properties, 866 F.2d at 1156.

As to the second element, the TAC alleges that hazardous substances were released at 110 N. Willis and that those hazardous substances spread to 717 N. Main. See TAC ¶ ¶ 50, 51. Coppola need not allege the precise manner of the release. See Ascon Properties, 866 F.2d at 1153. However, there is no time frame alleged for when the releases occurred. At the pleading stage, a time frame need not be alleged with pinpoint precision, but a general time frame, to the best of Coppola's ability, should be included. Cf. id. at 1156. Additionally, the TAC alleges that Coppola received a letter about PCE contamination, that PCE is located at 110 N. Willis, and that PCE is a hazardous substance. See TAC ¶ ¶ 19, 42. The only hazardous substance identified in the Consent Order is PCE. See Martin RJN Ex. A at § § 2.4, 2.5. Despite this, the first cause of action contains numerous allegations about releases and disposal of " hazardous substances." The use of the plural " substances," without any identification of what other hazardous substance(s) may be at issue, is insufficient. It is entirely unclear what other hazardous substances could be at issue. Although the Court has no difficulty in determining that PCE is a hazardous substance that is at issue, that is all that can be said. In other words, PCE is the only hazardous substance in the TAC for which there is fair notice. If Coppola has reason to believe that hazardous substances other than PCE are it issue, then they should expressly identify those substances. Without further identification, the plural term " hazardous substances" is ambiguous and an insufficient legal conclusion. For these reasons, the second element is inadequately pled.

With respect to the third element, the TAC alleges that hazardous substances spread from 110 N. Willis to 717 N. Main, and that Coppola has incurred and will incur response costs. See TAC ¶ ¶ 50, 51, 56. The TAC identifies the response costs as including fees for removal, clean up, and investigation, see TAC ¶ 56, each of which are among the costs that are recoverable under CERCLA. See 42 U.S.C. § 9601(23); Ascon Properties, 866 F.2d at 1154; Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892 (9th Cir. 1986). The TAC also alleges that the response costs are a result of contamination to Coppola's property by the defendants, and that the response costs are necessary and consistent with the national contingency plan. See id. at ¶ ¶ 56, 57. Finally, the TAC alleges that Coppola was informed of the PCE contamination by the DTSC in October 2009, and the Consent Order shows that Coppola agreed to remediation efforts at what appears to be 717 W. Main. [7] See

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id. at ¶ 19; Martin RJN Ex. A § § 1.2, 5.1.1. These allegations, combined with the Consent Order, are sufficient to allege that Coppola has incurred response costs that are necessary and consistent with the national contingency plan, and that those response costs were undertaken due to releases that occurred at 110 N. Willis. The third element has been adequately pled.

As to the fourth element, the First Cause of Action generally states that each defendant owns or operates a facility, arranged for the disposal or treatment of hazardous substances, and/or accepted hazardous substances for transport. See TAC ¶ 45. Specifically as to Martin, the First Cause of Action alleges that Martin owned 110 N. Willis at the time hazardous substances were released, arranged for the disposal and release of hazardous substances, and was in a position to prevent tenants from releasing hazardous substances. See id. at ¶ 53. These allegations seem to indicate that Coppola is alleging that Martin is a potentially responsible party under § 9607(a)(2) and § 9607(a)(3). However, as part of the general allegations, the TAC also alleges that Martin owned 110 N. Willis from 1995 to the present. See id. at ¶ 13. That allegation could support liability under § 9607(a)(1). See California Dep't of Toxic Substances Control v. Hearthside Residential Corp., 613 F.3d 910, 912-13 (9th Cir. 2010) (holding that § 9607(a)(1) applies only to current owners or operators). The TAC's allegations are somewhat ambiguous as to which category or categories of potentially responsible persons Martin may be. In its motion to dismiss, Martin argued that Coppola had not alleged a prima facie CERCLA case and, of particular relevance, that there were no facts alleged to show that Martin arranged for or consented to the disposal of any hazardous substance. In opposition, Coppola only argued that Martin was a potentially responsible person under § 9607(a)(1) as an owner of a facility. See Doc. No. 100 at 5:26-6:12. Coppola did not attempt to classify Martin as any other type of potentially responsible person, or to defend any other allegations regarding disposal or arrangement by Martin. The Court takes Coppola's opposition to mean that they are only attempting to utilize § 9607(a)(1) against Martin. Cf. Cortez v. New Century Mortg. Corp., *12 n.3 (N.D. Cal. Feb. 3, 2012) (holding that the plaintiff's failure to respond to an argument that characterized the nature of a claim was a concession of the defendant's argument); In re Fresh & Process Potatoes Antitrust Litig., 834 F.Supp.2d 1141, 1169 (D. Idaho 2011) (same). With this understanding of the TAC, the allegation that Martin has owned 110 N. Willis from 1995 to the present is sufficient to allege liability under § 9607(a)(1). See Hearthside, 613 F.3d at 912-13. Nevertheless, there remains the problem of the allegations in ¶ 53. Because this cause of action has not been adequately pled irrespective of ¶ 53, the Court will require Coppola to eliminate the allegations that do not actually reflect the potentially responsible person theories that are being pursued against Martin (and all other defendants). In particular, ¶ 53 should be changed to allege liability under § 9607(a)(1), and not liability under § § 9607(a)(2) or (a)(3). [8]

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In sum, the TAC does not sufficiently allege the second element of a prima facie case, and there are extraneous allegations pertaining to the fourth element. Martin's motion to dismiss this first cause of action will be granted. Because it is not apparent that amendment would be futile, dismissal will be with leave to amend. [9] See Gompper, 298 F.3d at 898.

c. Declaratory Relief Under § 9613(g)

Coppola defends the request for declaratory relief by contending that it has adequately alleged a CERCLA claim under § 9607(a). However, as discussed above, Coppola has not adequately alleged a § 9607(a) claim. In the absence of a valid § 9607(a) claim, declaratory relief under § 9613(g)(2) is unavailable. Union Station Assocs. LLC v. Puget Sound Energy, Inc., 238 F.Supp.2d 1226, 1230 (W.D. Wash. 2002); see also Chevron Envtl. Mgmt. Co. v. BKK Corp., 880 F.Supp.2d 1083, 1091 (E.D. Cal. 2012). Dismissal of the request for declaratory relief is appropriate. See id.

2. 2nd Cause of Action -- HSAA

Defendant's Argument

Martin argues that each of its CERCLA arguments also applies to the HSAA cause of action. Further, CERCLA precludes a double recovery. Because Coppola's HSAA claims do not have a separate and independent basis from the CERCLA claims, no recovery is permitted under ...


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