United States District Court, N.D. California
ORDER ON DEFENDANTS' MOTIONS TO DISMISS RE: DKT.
NOS. 41, 42
M. Ryu, United States Magistrate Judge
case relates to property damage caused by the Northern
California wildfires of October 2017 and subsequent
remediation efforts. Defendants AshBritt, Inc.
(“AshBritt”) and Tetra Tech, Inc. (“Tetra
Tech”) contracted with the United States government to
provide disaster relief services following the fires.
Plaintiff Craig Mason, a property owner in Sonoma County,
filed this putative class action on February 26, 2019,
alleging that Defendants caused property damage and engaged
in fraudulent conduct during their remediation efforts.
[Docket No. 1.] Mason brings claims for relief under the
Racketeering Influenced and Corrupt Organizations Act
(“RICO”), as well as state law claims for
trespass, conversion, trespass to chattels, and violations of
California's Unfair Competition Law (“UCL”),
California Business and Professions Code §§ 17200
et seq. [Docket No. 35 (“SAC”).]
now move to dismiss Mason's RICO claims pursuant to
Federal Rules of Civil Procedure 9(b) and 12(b)(6). [Docket
Nos. 41 (“Tetra Mot.”), 42 (“AshBritt
Mot.”), 53 (“Tetra Reply”), 54
(“AshBritt Reply”).] Plaintiffs timely opposed.
[Docket Nos. 47 (“Opp. to Tetra”), 48
(“Opp. to AshBritt”).] Having taken oral argument
and after considering the parties' submissions, the
motions are granted for the reasons stated below.
following facts are alleged in the operative complaint.
October 2017 Wildfires
a California resident, owned real property in Sonoma County
during the class period, which is defined as October 2017 to
the present. SAC ¶¶ 8, 11. In October 2017, a
series of wildfires caused extensive damage throughout the
Northern California counties of Sonoma, Napa, Mendocino, and
Lake, among others. Id. ¶ 19. The fires burned
over 245, 000 acres of land and destroyed over 14, 700 homes.
Id. On October 10, 2017, President Trump ordered
federal aid to assist the recovery efforts in areas affected
by the fires. Id. ¶ 20. The Federal Emergency
Management Agency (“FEMA”) coordinated those
efforts. Id. The Army Corps of Engineers
(“ACE”), working under FEMA, “oversaw and
coordinated contractors' clean up and debris removal work
as part of the recovery efforts” (the
“Project”). Id. ¶ 21. ACE
contracted with AshBritt, a Florida corporation, to manage
the Project. Id. ¶ 22.
Scope of the Project
AshBritt's contract with ACE, AshBritt was required to
perform various services, including:
Obtain, analyze and evaluate background soil samples to
establish cleanup goals for the project, including asbestos
testing. Asbestos testing will not be required if the
Contractor is assuming that all ash is toxic and disposing of
it at the proper landfill location. If this assumption is not
made, tests will be required at a rate of one test per 5000
[cubic yards] of ash.
Collect, consolidate, and remove ash and debris for disposal.
This material typically requires special handling and
disposal as “designated” or “special”
waste at a lined landfill.
Remove three to six inches of soil for reuse or disposal
pending waste characterization. If soil is clean, a landfill
may accept it as daily cover.
Upon removing all the debris and three to six inches of soil,
sample and analyze the remaining soil surface for the same
constituents identified as clean-up goals.
If results are higher than the threshold for clean-up goals .
. ., the Contractor will remove another layer of soil (from
1/2 inch to 3 inches) for disposal and conduct re-sampling
of the soil. The removal and re-sampling shall be repeated
until the remaining soil meets objectives.
If results are less than the threshold clean-up goals,
observe and verify the site preparation for final erosion
control and certification.
SAC ¶ 23. In October 2017, AshBritt subcontracted with
Tetra Tech to collect and test soil, among other services, on
all properties where AshBritt and its debris removal
subcontractors performed work. Id. ¶ 24; Tetra
Mot. at 3. As the Project progressed, Defendants were awarded
additional contracts to continue performing work, and each
additional contract “included the same terms and
requirements” as those listed above. SAC ¶ 25.
Allegations of Excessive Excavation and Removal
claims that the ACE contract required Defendants to perform
incremental soil removal by removing small layers of soil and
re-sampling the soil for additional contamination before
removing more. SAC ¶ 26. He alleges that Defendants
“routinely removed excessive amounts of soil, up to six
feet in depth at a time far more than was necessary to
dispose of contaminants without performing sampling to
determine whether the soil was contaminated.”
Id. ¶ 27. He contends that Defendants
“instructed or knowingly permitted”
subcontractors to perform excessive excavation, and that
Tetra Tech on-site supervisors “monitored the workers
and approved the removal of excessive amounts of soil without
performing sampling to determine whether the soil was
contaminated.” Id. ¶ 28.
lists several examples of the conduct described above:
In one instance, workers for Ashbritt and its subcontractors
took topsoil from surrounding properties and used it to
loosely fill an excavated hole to create the appearance that
the land had not been overexcavated. The property owner was
forced to pay for the cost to compact and backfill the land.
In another instance, a property owner working to rebuild his
house in Santa Rosa discovered that workers for a
subcontractor contracted and supervised by Ashbritt had
overexcavated the land, removed pieces of the foundation, and
loosely poured soil to cover it up. As a result, the owner
was forced to pay $55, 000 for remediation.
In another instance, where 30 truckloads of overexcavated
soil were removed from a single individual's land, a
supervisor on-site admitted to the property owner that the
Army Corps of Engineers had made ...