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Coppola v. Smith

United States District Court, E.D. California

May 14, 2014

VIOLA COPPOLA, et al., Plaintiffs
v.
GREGORY SMITH, et al., Defendants. AND RELATED CLAIMS

Decided May 13, 2014

Page 961

[Copyrighted Material Omitted]

Page 962

[Copyrighted Material Omitted]

Page 963

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

For Gary Coppola, Successor Trustee of the Viola M. Coppola Irrevocable Trust, Plaintiff: Brett Andrew Boon, Jan A. Greben, LEAD ATTORNEYS, Greben and Associates, Santa Barbara, CA.

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

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

For Martin and Martin Properties, Defendant: Emily L. Murray, Tim C. Hsu, LEAD ATTORNEYS, 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 The Jane Higgins Nash Trust, Jane Nash as Executor of the Estate of Decatur Higgins A/K/A the Estate of Mabel Elaine Higgins, David H. Nash, as the successor co-trustee of the William P. Nash and Jane H. Nash Revocable Trust, Richard P. Nash, as the successor co-trustee of the William P. Nash and Jane H. Nash Revocable Trust, Nash Properties LLC, Defendant: Steven Ray Williams, LEAD ATTORNEY, Williams, Brodersen & Pritchett LLP, Visalia, CA.

For Gregory Smith, Individually Doing business as Paragon Cleaners, Cross Claimant: Lori J. Gualco, Gualco Law, Sacramento, CA.

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

For The Trust of Anthony M. Coppola, Cross Defendant, Counter Defendant: Brett Andrew Boon, LEAD ATTORNEY, Jan A. Greben, Greben and Associates, Santa Barbara, CA.

For Jane Nash, as Executor of the Estate of Decatur Higgins, Cross Defendant: Steven Ray Williams, LEAD ATTORNEY, Williams, Brodersen & Pritchett LLP, Visalia, CA.

For Richard Laster, Counter Claimant, Cross Defendant: Lori J. Gualco, Gualco Law, Sacramento, CA.

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

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

For Jane Nash, as Trustee of the Jane Higgins Nash Trust, Counter Claimant: Steven Ray Williams, Williams, Brodersen & Pritchett LLP, Visalia, CA.

For The Estate of Jane Higgins Nash as Former Executrix Under the Will of Mabel Elaine Higgins, Deceased, Richard P. Nash, Successor Co-Trustee of The William P. Nash Jr. and Jane H. Nash Revocable Trust, Nash Properties, LLC, a California Limited Liability Company, David H. Nash, Successor Co-Trustee of The William P. Nash Jr. and Jane H. Nash Revocable Trust, Cross Defendants: Steven Ray Williams, LEAD ATTORNEY, Williams, Brodersen & Pritchett LLP, Visalia, CA.

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

Page 964

ORDER ON DEFENDANT CAL WATER'S MOTION TO DISMISS (Doc. No. 174)

ANTHONY W. ISHII, SENIOR UNITED STATES DISTRICT JUDGE.

This is an environmental law case that arises from the chemical contamination of property surrounding a dry cleaning business in Visalia, California. Plaintiffs (collectively " Coppola" ) have brought suit against inter alia the California Water Service Company (" Cal Water" ). The Court previously dismissed the Third and Fourth Amended Complaints under Rule 12(b)(6) following motions filed by inter alia Cal Water. The active complaint is the Fifth Amended Complaint (" FAC" ). Now before the Court is Cal Water's motion to dismiss the FAC. For the reasons that follow, the motion will be granted in part and denied in part.

GENERAL BACKGROUND

From the FAC, 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. Millers Dry Cleaners is no longer in operation.

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.

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. In 2000, however, Cal Water stopped operating the Well because of increasing levels of PCE. The Well is located 20 feet east of 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. Apparently, it was later determined that the soil and ...


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