CIV526752 FUENTEBELLA ENTERPRISES VS. MARY GIORGI

FUENTEBELLA ENTERPRISES LLC THE ESTATE OF LLOYD J. DEMARTINI
JORDAN S. STANZLER IRENE Y. FUJII

THE MOTION OF DEFENDANT/CROSS-DEFENDANT/CROSS-COMPLAINANT ESTATE OF LLOYD J. DEMARTINI (“DEMARTINI”) FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION, ON THE FIRST AMENDED COMPLAINT (“FAC”) OF PLAINTIFF FUENTEBELLA ENTERPRISES, LLC TENTATIVE RULING:

The Motion of Defendant/Cross-Defendant/Cross-Complainant Estate of Lloyd J. DeMartini (“DeMartini”) for Summary Judgment, or in the Alternative, Summary Adjudication, on the First Amended Complaint (“FAC”) of Plaintiff Fuentebella Enterprises, LLC (“Fuentebella”) is ruled on as follows:

(1) DeMartini’s and Fuentebella’s Requests for Judicial Notice are GRANTED.

(2) For purposes of a motion for summary judgment/summary adjudication, a defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of that cause of action cannot be established, or there is a complete defense to that cause of action. (C.C.P. § 437c(p(2).) Once the defendant has met his or her burden, the burden shifts to plaintiff to show that a triable issue of material fact exists as to the cause of action or a defense thereto. (Ibid.)

(3) DeMartini asks that the court exercise its discretion under C.C.P. section 437c(b)(3) to grant this Motion on the ground that Fuentebella’s Responsive Separate Statement to DeMartini’s Facts is defective. First, as to DeMartini’s argument that Fuentebella “disputed” certain facts but failed to cite to any evidence to dispute such facts, the court instead disregards such facts as “disputed” and instead treats them as “undisputed.” Second, to the extent that Fuentebella cites only to pages of deposition transcripts without line numbers or exhibits without citing to page numbers, the court declines to exercise its discretion to grant the Motion on this ground, and instead ADMONISHES Fuentebella to comply with the requirements set forth in CRC Rule 3.1350 in the future. The court therefore declines to grant the Motion on this ground, and proceeds to analyze the merits of the Motion below. (4) The Motion to the 19th Cause of Action for Cost Recovery under HSAA is DENIED.

A claim under the Carpenter-Presley-Tanner Hazardous Substance Account Act (“HSAA”) has the same elements as a claim under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). (Gregory Village Partners, L.P. v. Chevron U.S.A., Inc. (N.D. Cal. 2011) 805 F.Supp.2d 888, 897.) “A plaintiff seeking to recover costs under CERCLA § 107 must establish four elements—(1) the site is a “facility;” (2) a “release” or “threatened release” of a hazardous substance from the facility has occurred; (3) the “release” or “threatened release” 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 liability. (Ibid.)

The FAC alleges that DeMartini is strictly liable as the operator when Norge Village Cleaners or others discharged PCE into the groundwater. (FAC ¶ 83.) The FAC further alleges that a liable person includes any person who operated a facility at the time of disposal of a hazardous substance pursuant to 42 U.S.C. section 9607(a)(2).) (FAC ¶ 85.)

For purposes of CERCLA, an operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations. (Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 376.) In defining “operator,” the Supreme Court has employed broad, passive language: “an operator is one who is involved in operations ‘having to do with the leakage or disposal of hazardous waste,’ [citation], not one who is involved in operations ‘causing’ or ‘leading to’ the leakage or disposal of waste.” (Id. at 377 [citations omitted].)

Here, Fuentebella presents evidence to raise a triable issue of material fact as to whether DeMartini “operated” the dry cleaning business at which hazardous substances were disposed of on the property. (See Fuentebella’s Response to DeMartini’s Facts nos. 21, 37, 41; see also Fuentebella’s Separate Statement of Material Facts nos. 6-19; see also Griffin Depo. pp. 44-49, 51-52, 58-61, 67, 94-100.) While Fuentebella also argues that a triable issue of material fact exists as to whether DeMartini was an “owner” of the dry cleaning facility, the court does not reach this argument since it is not alleged in the FAC that DeMartini “owned” the dry cleaning facility. (See Hutton v. Fidelity Natl. Title Co. (2013) 213 Cal.App.4th 486, 493 [opposing party’s opposition papers cannot create issues outside the pleadings and are not a substitute for amendment].)

(5) The Motion to the 20th Cause of Action for Abatement of a Public Nuisance is DENIED.

The FAC alleges that the release of Tetrahloroethene (“PCE”) at the dry cleaning facility operated by Defendant actively caused or permitted a public nuisance. (FAC ¶¶ 91-92.)

“[L]iability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 306, citing City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38.) The evidence presented by Fuentebella is sufficient to raise a triable issue of material fact as to whether DeMartini created or assisted in creating a public nuisance. (See e.g., Fuentebella’s Response to DeMartini’s Facts nos. 80, 96, 100; see also Fuentebella’s Separate Statement of Material Facts nos. 6-19; see also Griffin Depo. pp. 44-49, 51-52, 58-61, 67, 94-100.)

(6) The Motion to the 21st Cause of Action for Abatement of a Private Nuisance is DENIED.

A triable issue of fact also exists as to whether DeMartini caused a private nuisance. (See Fuentebella’s Response to DeMartini’s Facts nos. 145, 161, 165; see also Fuentebella’s Separate Statement of Material Facts nos. 6-19; see also Griffin Depo. pp. 44-49, 51-52, 5861, 67, 94-100.)

(7) The Motion to the 22nd Cause of Action for Waste is GRANTED.

It is undisputed that Fuentebella did not own the property at the time DeMartini is alleged to have committed waste. (See DeMartini’s Separate Statement of Undisputed Material Facts no. 185; see also Fuentebella’s Response to Fact no. 185.) As such, this claim fails. (See California Dept. of Toxic Substances Control v. Payless Cleaners (E.D. Cal. 2005) 368 F.Supp.2d 1069, 1082 [subsequent owner of property failed to state a claim for waste because it did not own property interest in the land at the time when waste was allegedly committed].) Fuentebella correctly asserts that this federal decision is not binding on this court; however, it nevertheless is still persuasive authority, and Fuentebella offers no argument as to why this court should not follow the federal court’s reasoning.

(8) The Motion to the 23rd Cause of Action for Business and Professions Code Section 17200 is DENIED.

Business and Professions Code section 17200 defines unfair competition as including any unlawful, unfair or fraudulent business act or practice. (Bus. & Prof. Code § 17200.) The “unlawful” practices prohibited by section 17200 are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. (South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 880.)
The FAC alleges that DeMartini engaged in unlawful business practices by permitting the dry cleaning business to discharge PCE into the environment. (FAC ¶ 101.) The discharge of PCE is unlawful under HSAA. (FAC ¶ 102.)
For DeMartini to be held individually liable for the unlawful business practice, it must be predicated on his personal participation in the unlawful practice. (See People v. Toomey (1984) 157 Cal.App.3d 1, 14-15.) The evidence must prove active and knowing involvement in the offending conduct by the defendant. (Id. at 15, citing People v. E.W.A.P., Inc. (1980) 106 Cal.App.3d 315, 322.) Here, Fuentebella presents sufficient evidence to raise a triable issue of material fact as to whether DeMartini participated in the alleged unlawful business practice. (See Fuentebella’s Response to DeMartini’s Facts nos. 263, 283; see also Fuentebella’s Separate Statement of Material Facts no. 17.)

(9) The Motion to the 24th Cause of Action for Declaratory Relief is DENIED.

DeMartini argues that this claim lacks merit because it is duplicative of and based on the preceding five causes of action that lack merit. For the reasons discussed above though, this argument fails as Fuentebella raises triable issues of material fact as to the 19th, 20th, 21st and 23rd Causes of Action.

(10) DeMartini filed Evidentiary Objections to Fuentebella’s Evidence offered in Opposition to this Motion. The court declines to rule on DeMartini’s Evidentiary Objections based on failure to comply with CRC Rule 3.1354. (See CRC Rule 3.1354(b) [“Each written objection must be numbered consecutively…” and must follow one of two formats set forth in the rule.].) Despite filing over 50 pages of evidentiary objections, DeMartini failed to number a single objection. Similarly, DeMartini’s proposed order for ruling on these evidentiary objections also fails to number any of the objections. Failure to comply with CRC Rule 3.1354 is grounds for refusing to rule on evidentiary objections. (See Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 7–9 [trial court did not abuse its discretion in refusing to rule on evidentiary objections for failure to comply with CRC Rule 3.1354 and was not required to give party a second chance at filing properly formatted papers].)

(11)Based on the above, the Motion for Summary Judgment is DENIED. However, Summary Adjudication is GRANTED to the 22nd Cause of Action, and is DENIED as to the 19th, 20th, 21st, 23rd and 24th Causes of Action.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.