220 W Gutierrez, LLC vs Goss-Jewett & Co
Case No: 17CV05689
Hearing Date: Wed Sep 26, 2018 9:30

Nature of Proceedings: Motion for Summary Judgment

Tentative Ruling: If plaintiff 220 W. Gutierrez, LLC, does not dismiss the third cause of action in plaintiff’s complaint on or before September 26, 2018, the court will deny plaintiff’s motion for summary judgment.

If plaintiff 220 W. Gutierrez, LLC, does dismiss the third cause of action on or before September 26, 2018, the court continues plaintiff 220 W. Gutierrez, LLC’s motion for summary judgment to January 16, 2019. Parties may stand on their oppositions presently filed or file and serve new oppositions on or before January 2, 2019. Replies to new oppositions shall be filed and served on or before January 9, 2019.

Background: This action arises out of environmental contamination of real property located at 220 W. Gutierrez Street, Santa Barbara, California. The contaminant is perchlorethylene (“PCE”), a solvent that has been used in the dry cleaning business and is identified as a hazardous substance under both federal and state law. Plaintiff 220 W. Gutierrez, LLC, is the current owner of the property, having taken title to the property in 2016 pursuant to a Prospective Purchaser Agreement (“PPA”) with the California Department of Toxic Substance Control (“DTSC”). The PPA protects plaintiff from claims related to the contamination, but obligates it to perform certain remediation work at the property. To date, plaintiff has incurred more than $300,000 in response costs and will continue to incur response costs in order to clean up the PCE contamination. In an attempt to recoup these costs and to pay for any additional cleanup that may be required, plaintiff filed its complaint against various former owners and occupiers of the property for (1) public nuisance, (2) private nuisance, (3) trespass, (4) negligence, (5) ultrahazardous activity, (6) statutory indemnity, and (7) declaratory relief.

On April 18, 2018, the court sustained defendants’ demurrer to the fourth (negligence) and fifth (ultrahazardous activity) causes of action of the complaint, with leave to amend. Plaintiff chose not to amend its complaint and dismissed those causes of action.

There is no MSC or trial date scheduled.

Motion for Summary Judgment: Plaintiff moves for summary judgment on its nuisance, statutory indemnity, and declaratory relief claims against Goss-Jewett and on its third party defense and contribution bar affirmative defenses to the cross-complaints of Intervenors, Donald George, and Darold Merritt. Plaintiff also moves for a permanent injunction compelling Goss-Jewett to abate the nuisance and obtain regulatory closure of the site.

Defendants Estate of Robert Schack and Estate of Benjamin Fohrman, and intervenors Vigilant Insurance Company, The Standard Fire Insurance Company, Great American Insurance Company of New York, and Century Indemnity Company (“defendants/intervenors”) oppose the motion. Among other arguments, defendants and intervenors ask the court to deny the motion pursuant to CCP § 437c(h) or make such further orders as may be just.

Cross-defendant L&R Dry Cleaning, Inc., purports to join in defendants/intervenors’ opposition. Defendant and cross-complainant Donald George opposes the motion and purports to join in defendants/intervenors’ opposition. Defendant and cross-complainant Darold Merrit opposes the motion.

1. Summary Judgment or Adjudication?: Plaintiff noticed the motion as a motion for summary judgment. However, the motion does not address the third cause of action for trespass. A motion to adjudicate less than all causes of action is a motion for summary adjudication. Because plaintiff has not noticed a motion for summary adjudication, the motion can only go forward if plaintiff dismisses the trespass cause of action. The court is not attempting to compel plaintiff to abandon a cause of action. The court is merely observing that, as the complaint now stands, the motion is improperly noticed as a motion for summary judgment.

Absent dismissal of the third cause of action in plaintiff’s complaint on or before September 26, 2018, the court will deny the motion for summary judgment.

2. CCP § 437c(h): Defendants/intervenors ask the court to deny the motion pursuant to CCP § 437c(h).

The court shall deny a motion or continue it if it appears from affidavits “that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented.” (CCP § 473c(h).) The declarations must state““(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.” (Cooksey v. Alexakis, 123 Cal.App.4th 246, 254 (2004).) The party seeking a continuance must show diligence in discovery and a request for continuance will be denied where the party fails to explain why the discovery sought could not have been completed sooner. (Id. at 255.)

Christopher Johnson, an attorney representing defendants/intervenors, submitted a declaration stating: On May 21, 2018, intervenors served form interrogatories, special interrogatories, requests for admission, and requests for production on plaintiff. [Johnson Dec. ¶3] On June 21, plaintiff responded to the discovery and produced 1,391 pages of documents. [¶¶4, 5] Counsel believed the responses were deficient and conferred with counsel for plaintiffs. On August 15, intervenors filed four motions to compel further responses and production, which were set for hearing on September 26. The court determined that the hearing date was not available and intervenors resubmitted the motions with a hearing date of October 31. [¶¶6, 7]

The motions to compel may result in discovery of communications among plaintiff, the prior owners, and others, which may defeat plaintiff’s “innocent purchaser” defense and show that injunctive relief is inequitable; communications with DTSC, which may establish that plaintiff has not met its 2014 Agreement obligations, the “contribution bar” was improper, and certain costs may be unrecoverable; operations at the property since 1991, which may establish that much of the liability for investigation and cleanup lies with plaintiff and its predecessors, who negligently ignored problems with the property while benefitting economically from its use; and the factual bases for the assertions in plaintiff’s complaint, which may establish that those allegations are unsupported. [¶8]

Intervenors served a subpoena for business records on DTSC and, on August 30, received documents from DTSC. Counsel has not had time to complete its review of DTSC documents. [¶¶9, 11] Counsel has identified documents responsive to intervenors’ discovery requests that plaintiff did not produce. [¶11] Intervenors need time to review DTSC’s document production in depth and compare it with plaintiff’s document production. [¶12]

Continuances under CCP § 437c(h) are to be liberally granted. (Hamilton v. Orange Cty. Sheriff’s Dep’t, 8 Cal.App.5th 759, 765 (2017), citing Bahl v. Bank of America, 89 Cal.App.4th 389, 395 (2001).) Defendants/intervenors have demonstrated that there may be relevant facts in documents and further responses to discovery. They have diligently sought the information. There are four motions to compel set for hearing on October 31. The court will not prejudge the merits of those motions. (The court does note there is no separate statement filed with respect to the motion regarding requests for production and the motion itself refers to special interrogatories, not a request for production of documents.) There is no trial date scheduled and, therefore, no urgency that the summary judgment motion be heard now. The court is not inclined to risk prejudice to any party by hearing the motion while there are unresolved discovery disputes.

Not all parties have requested a continuance. However, since there is a single motion directed at all defendants and cross-complainants, judicial economy will be served by having a single hearing on the motion.

In the event plaintiff dismisses the trespass cause of action, the court continues plaintiff 220 W. Gutierrez, LLC’s motion for summary judgment to January 16, 2019. Parties may stand on their oppositions presently filed or file and serve new oppositions on or before January 2, 2019. Replies to new oppositions shall be filed and served on or before January 9, 2019.