Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Hugh Greenup et al vs the Estate of Quentin L Richard, Deceased
Case No: 19CV04248
Hearing Date: Fri Feb 28, 2020 9:30

Nature of Proceedings: Case Management Conference; Demurrer to Complaint

TENTATIVE RULING: Defendants’ demurrer to plaintiffs’ first cause of action under the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) is sustained. There is another action pending between the same parties on the same cause of action in federal court. Defendants’ demurrer to plaintiffs’ second, third, fourth, fifth, and sixth causes of action for abatement of public nuisance, cost recovery under the Hazardous Substance Account Act (Health & Safety Code §25300 et seq.), equitable indemnity, contribution, and declaratory relief is sustained for uncertainty. The relief sought in these five causes of action potentially overlaps the relief sought in a currently pending administrative/judicial proceeding. All claims are ordered abated without prejudice pending completion of these other matters.

BACKGROUND:

This is an environmental contamination case. Plaintiff Hugh Greenup is administrator of the San Roque Clean Up Fund, a qualified settlement fund under IRS Code Section 468B established to remove environmental contamination from a former dry cleaning business known as the Dutch Maid Cleaners, located at 3323 State Street, Santa Barbara, California (the “DMC Site”). Plaintiffs James M. DeLoreto, Jr. and Edward S. DeLoreto, Trustees under the Will of Emil DeLoreto, are the owners of the DMC Site. Defendants James Richard, Inc., San Roque Plaza, LLC, and James Quentin Richard, Trustee of the Richard Investment Trust, are the owners or former owners of property where two dry cleaning businesses previously operated in San Roque Plaza, located at 3347-3463 State Street, Santa Barbara, California (the “San Roque Plaza Site”). Both the DMC Site and the San Roque Plaza Site have been impacted by the presence of PCE, an industrial solvent used in the dry cleaning industry.

Since 1997, the DMC Site and the San Roque Plaza Site have been the subject of cleanup and abatement orders issued by the California Regional Water Quality Control Board (“RWQCB”). On August 2, 2019, the RWQCB issued a new directive to plaintiffs requiring additional investigation and remediation of contamination found at the DMC Site. Plaintiffs allege that the bulk of the remaining contamination at the DMC Site originated at the San Roque Plaza Site and migrated to the DMC Site. On August 9. 2019, plaintiffs filed their complaint for (1) abatement of imminent and substantial endangerment under the Federal Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. Section 6901 et seq., (2) abatement of public nuisance, (3) cost of recovery under the California Hazardous Substance Account Act (“HSAA”), Health & Safety Code Section 25300 et seq., (4) equitable indemnity, (5) contribution, and (6) declaratory relief. Plaintiffs seek damages for costs incurred in responding to the contamination and an injunction requiring defendants to perform the environmental investigation and remediation required in the August 2, 2019 directive.

Defendants now specially and generally demur to the complaint. Plaintiffs oppose the demurrer.

ANALYSIS:

Requests for Judicial Notice

Defendants request that the court take judicial notice of various documents exchanged between plaintiffs, defendants, and/or the RWQCB relating to or concerning the contamination in this case (Exhibits A, B, C, D, F, G, H, and P), plaintiffs’ petition for review and rescission of the RWQCB action filed on September 27, 2019 with the State Water Resources Control Board (Exhibit E), plaintiffs’ petition for writ of mandate filed in the Santa Barbara Superior Court, San Roque Clean Up Fund, a qualified settlement fund, by and through its administrator, Hugh Greenup, et al. v. California Regional Water Quality Control Board, Case No. 20CV00022 (Exhibit I), and various records of the proceedings in the United States District Court, Central District of California, Western Division, Case No. 2:19-cv-07936-SVW-AGR, Hugh Greenup, as administrator of the San Roque Clean Up Fund, a qualified settlement fund, et al. v. Estate of Quentin L. Richard, et al. (Exhibits J, K, L, M, N, O).

Exhibits B, C, D, F, G, H, and P are official acts of an executive department of this state for which judicial notice may and will be taken. Evid. Code §452, subd. (c). Exhibits I, J, K, L, M, N, O are court records for which judicial notice may and will be taken. Evid. Code §452, subd. (d). Exhibit E is a record of a public agency of this state not reasonably subject to dispute for which judicial notice may and will be taken. Evid. Code §452, subd. (h). Judicial notice of these documents and records, however, does not extend to the truth of any factual assertions appearing therein. Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483. Exhibits A does not fall within any of the categories subject to judicial notice under Section 452 and the court declines to take judicial notice of this item.

Plaintiffs request that the court take judicial notice of City of Santa Barbara Municipal Code Section 14.44.160 (Exhibit 1), City of Santa Barbara document entitled “Santa Barbara Sewer Lateral Inspection Program” (Exhibit 2), and City of Santa Barbara document providing a diagram of a typical residential sewer connection in Santa Barbara (Exhibit 3). Exhibit 1 is a legislative enactment issued by a public entity in this state for which judicial notice may and will be taken. Evid. Code §452, subd. (b). Exhibits 2 and 3 are official acts of a legislative department of this state for which judicial notice may and will be taken. Evid. Code §452, subd. (c).

Demurrer to Complaint

The legal authority for a demurrer is found in Code of Civil Procedure Section 430.10, which provides, in relevant part:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one of the following grounds:

“(c) There is another action pending between the same parties on the same cause of action.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.”

The function of a demurrer is to test the legal sufficiency of the pleading by raising questions of law, not fact. Buford v. State of California (1980) 104 Cal.App.3d 811, 827. In ruling on a demurrer, the court assumes the truth of all allegations in the complaint that have been properly pleaded, but not contentions, deductions, or conclusions of fact or law. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 827. The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts in the complaint. Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.

Plaintiffs’ first cause of action under RCRA (42 U.S.C. §6901 et seq.) seeks an injunction requiring defendants to undertake at their sole cost all actions necessary to investigate and abate the environmental contamination at the DMC Site. However, there is another action pending between these same parties on the same cause of action in federal court. On September 16, 2019, defendants caused this action to be removed to the United States District Court for the Central District of California pursuant to 28 U.S.C. Section 1441, subdivision (a). (Notice of Removal of Action, filed 9-16-19.) On December 13, 2019, the District Court granted defendants’ motion to dismiss plaintiffs’ RCRA cause of action (the sole federal claim) and ordered the remaining state claims remanded to this court. (Defendants’ RJN, Ex. J.) The District Court granted plaintiffs leave to amend and on December 31, 2019, they filed a first amended complaint, asserting a single cause of action under RCRA, Hugh Greenup, et al. v. Estate of Quentin L. Richard, et al., Case No. 2:19-cv-07936-SVW-AGR. (Defendants’ RJN, Ex. K.)

Plaintiffs’ RCRA cause of action in the Central District Court is based on the same facts as alleged in their state RCRA claim, except plaintiffs added allegations that defendants knew of the spills, releases, and discharges of contaminants as early as 1992, but failed to abate the contamination. (Defendants’ RJN, Ex. K, ¶¶ 33-42, 47, 49, 64-66.) Like the current action, plaintiffs’ federal RCRA claim seeks an order under 42 U.S.C. Section 6901 et seq. requiring defendants to undertake at their sole cost and expense all actions necessary to investigate and remediate the contamination at the DMC Site. While plaintiffs filed their RCRA claim in this court first, the entire action was removed to the Central District Court and that court continues to exercise jurisdiction over the RCRA claim. On December 13, 2019, the federal court granted defendants’ motion to dismiss the RCRA claim, but plaintiffs were granted leave to amend, which they exercised by filing a first amended complaint on December 31, 2019. That was before this court filed its receipt of the federal remand order on January 7, 2020, and reopened the state court proceedings. (Order of Remand, filed 1-7-20.)

Because “[t]here is another action pending between the same parties on the same cause of action” (Code Civ. Proc. §430.10, subd. (c)), the court will sustain defendants’ special demurrer to plaintiffs’ first cause of action. The action is ordered abated without prejudice pending resolution of the District Court proceedings.

Defendants next demur to plaintiffs’ second, third, fourth, fifth, and sixth causes of action for abatement of public nuisance, cost recovery under HSAA, equitable indemnity, contribution, and declaratory relief. In these claims, plaintiffs seek an injunction requiring defendants to assume responsibility for the environmental contamination at the DMC Site. (Complaint, ¶3.) Plaintiffs also seek to recover costs incurred in responding to the contamination. (Complaint, ¶4.) These claims, however, are already the subject of administrative actions being pursued by, and against, plaintiffs. The RWQCB’s August 2, 2019 directive required plaintiffs to immediately undertake remedial work at the DMC Site. (Complaint, ¶3.) Since then, the RWQCB has issued additional cleanup orders to plaintiffs. (Defendants’ RJN, Exs. C, D, F, G, H.) On September 27, 2019, plaintiffs filed an administrative petition with the RWQCB, challenging the directives and seeking to add defendants as responsible parties for the cleanup. (Defendants’ RJN, Ex. E.) After the RWQCB dismissed the petition, plaintiffs filed a petition for writ of mandate on January 2, 2020, in the Santa Barbara Superior Court, seeking both to overturn the dismissal and to require RWQCB to add defendants as responsible parties. That action is still pending, San Roque Clean Up Fund, et al. v. California Regional Water Quality Control Board, et al., Case No. 20CV00022. (Defendants’ RFJ, Ex. I.)

Under the doctrine of primary jurisdiction, where a claim requires resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body, the judicial process will generally be suspended pending referral of the issues to the administrative body for review. Farmers Insurance Exchange v. Superior Court (1992) 2 Cal.4th 377, 390. As stated in Farmers, the primary jurisdiction doctrine “enhances court decision making and efficiency by allowing courts to take advantage of administrative expertise [while helping] assure uniform application of regulatory laws.” Id., at 391. Here, plaintiffs have sought, and continue to seek, administrative relief against defendants. In their petition before the State Water Resources Control Board, plaintiffs endeavored to add defendants as responsible parties under the RWQCB’s August 2, 2019 clean up order. While the petition was denied, plaintiffs have sought review of that decision by petitioning the Santa Barbara Superior Court for a writ of mandate against the RWQCB.

There are now three actions pending over essentially the same claims – this state court action, the Central District Court action that was removed, and plaintiffs’ writ petition against RWQCB. Plaintiffs argue that there is no risk that this court’s orders would conflict with the orders of the other tribunals, but should this court impose liability on defendants, that decision could potentially be inconsistent with the existing orders of the RWQCB and/or the rulings made by the judges in the federal court action and the state court writ petition.

To avoid concurrent litigation on the same basic claims, the court will sustain defendants’ demurrer to plaintiffs’ second, third, fourth, fifth, and sixth causes of action for uncertainty. Code Civ. Proc. §430.10, subd. (f). The claims are uncertain because it is unknown at this point whether the relief sought in this action overlaps the relief sought in the other actions. Until the administrative proceedings (including plaintiffs’ petition for writ of mandate) are concluded, the five state law causes of action for termination of public nuisance, cost recovery under HSAA, equitable indemnity, contribution, and declaratory relief are ordered abated without prejudice.