Case Name: Peter Ng, et al. v. International Disposal Corp. of California, et al.
Case No.: 1-12-CV-228591

This is a putative class action brought by plaintiffs Peter Ng (“Ng”) and Dolly Wu (“Wu”) (“Plaintiffs”) against defendants International Disposal Corp. of California and Browning-Ferris Industries of California, Inc. (“Defendants”). Plaintiffs allege that Defendants operate and/or maintain the Newby Island Resource Recovery Park and/or landfill (“NIRRP”) in Milpitas, California, which includes facilities for the processing of solid waste, compost, construction and demolition material, gas-to-energy, as well a recyclery. Plaintiffs further allege that on recurrent and intermittent occasions, their property, neighborhoods, residences and yards have been physically invaded by dust, debris, noxious odors, pollutants, and air contaminants originating from NIRRP. Plaintiffs allege that the release of dust, debris, pollutants, noxious odors and air contaminants is abatable by certain measures, such as the reduction of the “working face” area at the composting facility; the use of flexible synthetic cover systems or compost blankets at the recyclery; more effective air/gas capture and treatment systems; the adoption of an enclosed composing system; the use of anaerobic digestion technology; and more effective removal and handling of leachate generated by composting operations. Plaintiffs allege that the invasion of their property by dust, debris, pollutants, noxious odors, and air contaminants has caused them to suffer injuries and interfered with their use and enjoyment of their property.

The Complaint, filed July 17, 2012, defines a proposed class of “[a]ll persons residing within a two mile radius of the Newby Island Resource Recovery Park whose homes or residences have been exposed to dust, debris, pollutants, air contaminants, and/or noxious odors as a result of Defendant’s construction, maintenance, and operation of the Newby Island Resource Recovery Park.”

The Complaint asserts four causes of action for: (1) public nuisance; (2) private nuisance; (3) trespass; and (4) negligence/gross negligence.

Plaintiffs now move for class certification.

I. Discussion

a. Plaintiffs’ Arguments and Evidence

The proposed class definition differs from the Complaint. In the moving papers, Plaintiffs define the class as “all persons who have been owner/occupants and/or tenants of residential property at any time from July 17, 2009 to present within the following geographic area: Eastern boundary of I-680, Southern Boundary of Calaveras Boulevard, Western Boundary of I-880 from Calaveras to Dixon Landing Road, moving North along the Railroad to Kato Road, moving east along Kato Road to Warm Springs Boulevard, north to Warren Avenue, East until reconnecting with I-680.”

Plaintiffs argue that the proposed class members are ascertainable because the class definition based on geographic boundaries is sufficiently clear and unambiguous to allow the Court to determine who is a member of the class. Plaintiffs argue the proposed class is sufficiently numerous, as it is comprised of thousands of residents.

Plaintiffs argue there are myriad common questions of fact and law in this case, including the area of dispersion of NIRRP’s emissions; meteorological conditions in the area; the sources of odorous emissions within NIRRP; steps taken by Defendants to reduce or eliminate the emission of odors; whether Defendants created or were actively involved in creating a condition that was harmful to health or interfered with the comfortable enjoyment of life or property; whether the condition affected a substantial number of people at the same time; whether an ordinary person would be reasonably annoyed or disturbed by the condition created by Defendants; whether the seriousness of the harm outweighs the social utility of the conduct; whether the putative class suffered harm that was different from the type of harm suffered by the general public; whether Defendants’ conduct was a substantial factor in causing the harm suffered by the putative class; the correct measure of damages for the common injuries; whether Defendants owed the putative class a duty; the industry standards of care for landfills, composting facilities, and recycleries; whether Defendants breached this duty; and the correct measure of damages. Plaintiffs argue these common questions will be answered with common evidence, including Defendants’ operational records, Air Dispersion Modeling, standard of care testimony, testimony regarding Defendants’ operational practices, testimony of members of the putative class, and records and staff testimony of governmental entities.

Plaintiffs argue their claims are typical of the proposed class because they have suffered the same type of injury from the same course of conduct. Plaintiffs argue they will adequately represent the class, as their interests align with the class, they have no conflicts that would render their interests inconsistent or antagonistic with those of the class, and they have demonstrated their dedication to representing the class by sitting through depositions, allowing Defendants’ experts to visit their homes, and retaining counsel experienced in environmental class actions.

Plaintiffs argue a class is a superior method of resolving this dispute because it avoids multiplicity of actions that could lead to conflicting results and repetitious litigation, and it can vindicate the rights of parties who lack the financial ability to independently file litigation.

In support of the motion, Plaintiffs submit 288 data sheets by area residents describing the odors they have experienced and the impacts of those odors on the use of their properties. Plaintiffs also submit logs of odor complaints made to the City of Milpitas and the Bay Area Air Quality Management Division (“BAAQMD”), the City of Milpitas’ Draft Report on Odor to the Mayor and City Counsel, Milpitas’ Odor Action Plan, Milpitas’ appeal to the City of San Jose regarding odor from the NIRRP, and Milpitas’ request for qualifications from law firms in anticipation of litigation against the NIRRP.

Plaintiffs also submit the declaration of engineer and air dispersion modeling expert David Weeks of Risk Management & Engineering Ltd. (“RME”), who provides a preliminary report entitled “Air Model Analysis of Impacts from the Newby Island Landfill.” Mr. Weeks explains that he used the American Meteorological Society/EPA Regulatory Model or “AERMOD” along with meteorological data from the Moffett federal Airfield and Oakland Airport, and Lakes Environmental’s AERMET View version 7.6.1 program (with embedded terrain data) to perform preliminary modeling of the odor emissions from NIRRP. Plaintiffs argue that modeling is the best method because there were no odor measurement devices on the homes. Based on his model, Mr. Weeks concludes that many residential locations surrounding the NIRRP are subjected to odor concentrations at levels that are known to at least cause slight discomfort to some individuals (7 dilutions to threshold [“D/T”] or greater for an average of 15 minutes at least 104 times in a two-year period; 5 D/T or greater for an average of 15 minutes at least 416 times in a two year period for all locations). Mr. Weeks concludes that based on Plaintiffs’ data sheets, the most frequent descriptions of the odors given by individuals at the residential locations are consistent with landfill and compost operations. Mr. Weeks further concludes that based on the AERMOD modeling, the odor impacts associated with NIRRP’s landfill and compost operations are more significant than the impacts associated with operation of the nearby San Jose/Santa Clara Water Pollution Control Plant (“SJ/SC WPCP”) and other known area odor sources. Mr. Weeks further concludes based on the AERMOD modeling results that particulate matter and acid gases emitted by the NIRRP have been deposited over a large area around the facility, including many residential locations, and these particulate emissions include semi-volatile organic products of incomplete combustion such as those found in soot, and certain medals.

Plaintiffs also submit the declaration of chemistry expert and atmospheric and environmental scientist Henry Cole, Ph.D. Dr. Cole opines that based upon the seasonal distribution of odor complaints in Milpitas, it appears odors are experienced most frequently during the time of year in which landfill odor emissions would be expected to be strongest. Dr. Cole opines that the SJ/SC WCPC contributes far less to the frequency and intensity of odors in the area because given the location of the sewage plant and the prevalence of northwesterly winds, the impact of odorous emissions from the sewage plant is likely to occur principally to the south of the proposed class.

Plaintiffs also submit the declaration of meteorologist Bryan Rappolt, who states that prevailing winds in the Milpitas area over the NIRRP are pushed squarely into the proposed class area, while prevailing winds over the SJ/SC WCPC move to the south of the class area.

b. Defendants’ Arguments and Evidence

In opposition, Defendants argue that Plaintiffs fail to submit substantial evidence to show that the certification requirements are met as to the predominance of common issues of law or fact, typicality, adequacy of representation, numerosity, ascertainability, and superiority of class treatment.

Defendants challenge Plaintiffs’ reliance on the data sheets submitted by residents. Defendants argue these are inadmissible hearsay documents that cannot show that NIRRP was actually the source of the resident complaints, particularly because there are numerous odor sources in the immediate area including marshlands, mud flats, and the SJ/SC WCPC (which has 750 acres of sewage sludge drying beds located immediately adjacent to NIRRP). Defendants argue the data sheets were not obtained through a neutral survey or random sampling, but through mass mailings to 3,868 unique local addresses that already implied the odors were emitted from NIRRP. Defendants argue the data sheets do not contain the necessary language to constitute declarations under California Code of Civil Procedure section 2015.5.

Defendants also challenge Plaintiffs’ reliance on various documents related to the City of Milpitas and its complaints regarding NIRRP. Defendants argue these documents are irrelevant, hearsay, and lack foundation or authentication.

Defendants argue that class certification is inappropriate for a number of reasons. Regarding the requirement that common issues of law and fact predominate, Defendants contend that the data sheets themselves demonstrate a wide variability among residents within the proposed class area as to the experience, description, frequency, intensity and degree of odors, with many attributing the odors to the sewage plant, not the landfill. Defendants also point out that since Plaintiffs’ counsel received only 288 responses, which comprise only 7% of the 3,868 communications, the complaints of odors are in the minority.

Defendants challenge the reliability of Plaintiffs’ expert declarations. Defendants argue that Mr. Weeks’ use of AERMOD is inappropriate because AERMOD is a regulatory tool that is designed to show maximum concentrations of airborne particulates and cannot be used to prove what the actual conditions were. Defendants further argue that Mr. Weeks’ report fails to demonstrate an “impact” of odor, as an odor intensity of 5 D/T is only slightly noticeable above background odors. Defendants contend that Dr. Cole’s opinions are unsupported and unreliable, especially since he did not even consider the odor effects of the sewage sludge-drying beds that are closer to many class members than Newby Island is.

To counter Plaintiffs’ expert showing, Defendants submit the declarations of several expert witnesses:

 Psychology expert Pamela Dalton, Ph.D. opines that the perception of odor is highly subjective, that variation in sensitivity and response across the population is significant, and that misattribution of an odor source is a common occurrence.
 Engineer and regulatory expert Thomas A. Bilgri challenges Mr. Weeks’ assumptions that gas leaks in process piping are common at NIRRP and points to flaws in Mr. Weeks’ use of data taken from a 2009 air quality impact analysis that reflected maximum permitted waste intake rates, rather than actual waste intake, which was substantially lower. Mr. Bilgri also challenges Mr. Weeks’ assumption that all landfill gas (“LFG”) not collected by Gas Collection and Control Systems (“GCCS”) is emitted into the atmosphere, ignoring the process of oxidation of LFG as it moves through cover soils. Mr. Bilgri challenges Mr. Weeks’ reliance on LFG odor emissions and flux rates through cover materials taken from technical literature, particularly a study of Italian landfills by Sironi/Capelli. Mr. Bilgri also criticizes Dr. Cole as lacking knowledge in areas of LFG production, control, and emissions, and for blindingly following the Weeks RME report.
 According to engineer and consultant Patrick S. Sullivan, Mr. Weeks improperly calculates fugitive LFG emissions from Newby Island by using a collection efficiency of 85% from regulatory documents, but collection efficiency often exceeds 85%. Mr. Sullivan criticizes the fact that Mr. Weeks conducted no site-specific analysis of collection efficiency or a flux analysis of actual emissions. Mr. Sullivan says that using the Solid Waste Industry for Climate Solutions (“SWICS”) analysis for collection efficiency for the period between 2010 and 2012 shows that NIRRP’s collection efficiency was between 90.75 and 94.65%. Regarding flux rate, Mr. Sullivan states that Mr. Weeks’ report improperly calculates odor emission flux using an estimated LFG generation rate, which uses the 85% collection efficiency and assumes that emitted LFG has an odor concentration equal to Italian landfills in the Sironi and Capelli study. Mr. Sullivan states that Mr. Weeks’ LFG generation estimate is based on data entered into the highly conservative California Air Resources Board (“CARB”) methane generation model, which was developed for permitting and regulatory compliance purposes. Also, Mr. Sullivan states that Mr. Weeks improperly uses input data derived from a 2009 air quality impact analysis for purposes of evaluating the potential impact of a landfill expansion in conformance with CEQA. According to Mr. Sullivan, in that study (which was by Sullivan’s company), for the periods 2008 through 2016, only projections could be made for waste acceptance, and the maximum permitted waste acceptance rate was assumed to be a worst-case condition for CEQA permitting purposes. This projected waste acceptance rate was more than two times the actual waste acceptance by the facility for the period that is relevant to this lawsuit. Mr. Sullivan further criticizes Mr. Weeks’ use of an odor unit concentration of 900,000 odor units per cubic meters for LFG, derived from Sironi and Capelli, without determining if landfills in the Italian study are comparable to Newby Island. Mr. Sullivan states that Sironi and Capelli have, in fact, provided declarations stating that Italian landfills are not representative of a California landfill like Newby Island, and they have also acknowledged problems in their sampling methodology that resulted in likely over-stated odor fluxes, even for Italian landfills. Mr. Sullivan further states that the Sironi and Capelli odor values are further inaccurate because they collected them from the GCCS (raw LFG from deep inside the waste mass) rather than near the surface at the point where gas is released through the cover, during which fugitive LFG will be oxidized by landfill cover material. Mr. Sullivan states that he reviewed a report by Card and Schmidt determining actual LFG odor flux rate from Newby Island, and “[t]he odor flux value measured by Card and Schmidt at NIRRP is approximately six times lower than that approximated by Weeks.” Mr. Sullivan contends that Mr. Weeks wrongly assumes that active areas of the landfill have “uncontrolled” surface emission of LFG because even areas that are considered active are still influenced by the GCCS in adjacent or underlying portions of the landfill. Mr. Sullivan argues that the use of site-specific data is essential. Regarding composting, Mr. Sullivan contends that Mr. Weeks improperly assumes that 25% of the waste is not green, and he makes no effort to determine the methods used for composting or the management practices employed, or whether feedstock or compositing methods used at NIRRP are comparable to the sites studied by Sironi and California Integrated Waste Management Board studies. Regarding particulate matter and acid gas, Mr. Sullivan states that Mr. Weeks’ PM10 and HCl emissions and acid gas concentrations have the same flaw of relying on permitting levels or emission factors which are default values rather than actual PM10 or HCl emissions or acid gas concentrations from site-specific testing data. Mr. Sullivan argues that levels of contaminants vary significantly, so Mr. Weeks’ suggestion that there are significant levels of semi-volatile compounds or toxic materials in the PM10 is pure speculation. Finally, Mr. Sullivan states that Mr. Weeks discounts other odor sources like the WPCP and conducts no analysis of the possible impact from the Milpitas Pump Station, Zanker Road Landfill and Materials Processing Facility, or the SF Bay salt marsh areas. According to Mr. Sullivan, Card and Schmidt found that natural sources of odor, mostly related to the San Francisco Bay, showed the highest odor emissions, but Mr. Weeks ignores this.
 Real estate appraiser Richard J. Roddewig states that actual market research must be conducted to determine impacts of offsite contamination and other environmental conditions upon the use and enjoyment of property and upon real estate prices and values because proximity to a landfill does not always adversely impact prices and values of nearby properties. Mr. Roddewig states that there are significant demographic differences within the proposed class area and the properties within it with regard to median home values, age, and income, and variations in ownership might affect the response of market participants to particular environmental issues, as a homeowner population might have different concerns related to environmental issues and conditions than would a passive investor, more concerned about the ratio of net rental income to purchase price. Mr. Roddewig further states that some properties are more affected than others by prevailing wind patterns depending on wind direction, wind strength, and distance from sources.
 Engineer and consultant Weiping Dai, Ph.D., challenges Mr. Weeks’ use of AERMOD on the grounds that it is for regulatory applications and has inherent limitations and uncertainties, particularly when used to pinpoint “where” and “when” concentrations of odor, particular, and/or acid gas deposition will occur in the vicinity of the alleged source. Dr. Dai further contends that AERMOD’s inherent limitations and uncertainties are magnified by Weeks’ failure to use site-specific data as input to his model. Dr. Dai points to various improper inputs in Mr. Weeks’ report, e.g., use of elevation values for the landfill sources using the AERMAP program based on NASA data, even though terrain elevation at the landfill site changes over time; assigning an arbitrary elevation value to the tipping area (the area without gas collection) and all sources for compost operations, which is significantly different from the typical terrain elevation at the site; use of 17 area sources in his study which do not coincide with the actual landfill and composting areas; assigning only one elevation value to each of the 17 modeled area sources, even though elevations at different locations can vary significantly; using an 85% LFG collection efficiency, without determining actual efficiency; modeling particulate (fugitive dust) emissions from paved and unpaved roads at NIRRP as a single source area with a size of 106 acres, which misrepresents the characteristics of the roadway dust emissions; not using odor modeling data from the period modeled (2010-2011); failing to include or model odor emissions from certain sources, including the WCPC collection system and ignoring odors from the Milpitas pump station or the Zanker materials processing facility; using literature-reported values, not site-specific data, for odor concentration values used to derive odor emissions and odor flux from various landfill areas/operations; and overstating the size of the landfill area with gas collection. Dr. Dai argues that the Weeks study for NIRRP includes meteorological and modeling input data that results in unreliable conclusions because he makes no attempt to justify the representativeness and data quality of either data set from Moffett Federal Airfield or San Jose Airport for their use to simulate conditions at NIRRP. Dr. Dai also criticizes Mr. Weeks’ setting of his vertical initial dispersion for the NIRRP area sources at zero, but this underestimates the initial dispersion of modeled emissions and affects the ambient impact at nearby receptors. According to Dr. Dai, Mr. Weeks attempts to base his flare source parameters for particulate and acid gas deposition on several calculation techniques that are inconsistent with the EPA and recommended flare source calculation method, and he makes no effort to use representative particle size distribution for the emission source, but rather used a generic number based on his professional judgment. Dr. Dai concludes that Mr. Weeks’ failure to use site-specific information and a proper methodology has resulted in significant errors in his modeling results and conclusions, and his odor flux value of 0.26 OU/m2-sec was incorrectly based on projected (not actual) waste values which yielded an inflated LFG generation, an assumption that all uncollected LFG is emitted through the landfill cover, and use of a value for LFG odor concentration that has nothing to do with the NIRRP, but is lifted from an article that studied Italian landfills. Dr. Dai ran a comparison of AERMOD runs using identical electronic versions of the AERMOD input files, except for the singular replacement of the odor flux emission rate for the non-active landfill areas. Using the Moffett Airport Weather data, Dr. Dai’s re-running of the AERMOD model showed that the footprint of the modeled odor impact was substantially smaller for the measured flux from the landfill than for the one Weeks-approximated impacts. Using the San Jose Airport NWS data, a similar reduction in the frequency of times plaintiffs’ residences are modeled to exceed 5 DTs for a period of 15 minutes when comparing model outputs using the measured odor flux values from Card and Schmidt. Dr. Dai also re-ran the modeling for landfill and compost facility combined, changing only the odor flux value, and again, modeled odor of impact is substantially smaller when the Card and Schmidt measure odor flux value is used.
 Professional geologist Jean E. Bogner, Ph.D. criticizes Mr. Weeks for not visiting the NIRRP the facility or completing field measurements. Dr. Bogner states that this is especially important for the NIRRP site, which is surrounded by numerous other potential odor sources, including a large wastewater treatment plant with extensive sludge drying beds, coastal marine wetlands, sea salt recovery operations, estuarine streams, and former composting operations adjacent to the landfill. Dr. Bogner states that the CARB model used by Mr. Weeks to derive a value for the volume of landfill gas generated each year between 2007 and 2011 has never been field-validated for prediction of site-specific methane emissions, and his assumption that the CARB model can be relied upon for reasonable and reliable estimates of LFG generation and recovery at a specific site is wrong. According to Dr. Bogner, that CARB is a “conservative” model for California Greenhouse Gas Inventory Reporting does not mean it is applicable to site-specific prediction of LFG generation, recovery and emissions. Dr. Bogner further states that the magnitude of emissions at a particular site is dependent on the thickness and properties of various cover materials, site operational issues, and the site location on the surface of the earth, which determines daily climate-and soil microclimate-related methane transport and oxidation rates in cover soils. Dr. Bogner used the California Landfill Methane Inventory Model (“CALMIM”) to model methane emissions from NIRRP in 2011 and found that Mr. Weeks’ CARB estimate is more than 100 times higher than the CALMIM-based emissions estimate.

Defendants further point out that Mr. Weeks’ model uses a proposed class boundary that extends two miles in all directions from Newby Island, while Plaintiffs’ new proposed class definition is based on the data sheets submitted by residents, which further demonstrates the unreliability of Mr. Weeks’ model and the variation of odor impacts in the proposed class region.

Regarding the public nuisance claim, Defendants argue such claims are by their nature unsuitable for class treatment because a private plaintiff suing for public nuisance must demonstrate a special, individual injury that is different in kind, not just degree, from that suffered by members of the public.

Regarding the negligence claim, Defendants argue that individualized inquiries will predominate as to whether and the extent to which class members were impacted by odors from the NIRRP facility because the presence or absence of odors can depend on a number of variables such as different sensitivity to odor from person to person, and different uses by class members of their homes.

Defendants argue that Plaintiffs do not dispute that damages would have to be proven on an individualized basis. Defendants point out that Wu seeks damages for home renovations and school fees, while Ng seeks different damages for a cough and rust on his car.

Defendants cite Lockheed Martin v. Superior Court (2003) 29 Cal.4th 1096, City of San Jose v. Superior Court (1974) 12 Cal.3d 447 and Freiman v. San Rafael Rock Quarry Inc. (2004) 116 Cal.App.4th 29 for the position that the community of interest requirement is not satisfied where nuisance claims are predicated on facts peculiar to each prospective plaintiff.

Defendants argue that Plaintiffs’ claims are not typical of the class because their residences are closer to the sludge processes at the sewage plant than to Newby Island, and they seek atypical damages. Defendants further point out that Ng lacks a property interest, and is thus subject to unique defenses.

Defendants argue that Plaintiffs are not adequate representatives because they have deliberately split the claims of class members by not asserting claims for personal injury.

Defendants argue the proposed class definition is not ascertainable because the geographical area they have selected is overbroad in that it includes a number of individual who have affirmatively denied that odors are an issue for them.

Defendants argue the proposed class is not sufficiently numerous because Mr. Weeks’ modeling efforts suggests that for all but a handful of homes, there was no odor detectable above background odors 99% of the time, and the data sheets cannot be used to establish the number of class members based on their inadmissibility.

Finally, Defendants argue that a class action will not provide substantial benefits to the litigants and the court due to the predominance of individualized issues.

c. Evidentiary Objections and Motions to Strike

Defendants object to and move to strike all 7 Coulson exhibits on the grounds of hearsay and lack of foundation and authentication. Defendants object to and move to strike the Weeks and Cole declarations as unreliable and irrelevant expert testimony and on the grounds that they lack sufficient qualifications for the subjects of their testimony.

Plaintiffs move to strike the Dai declaration on the grounds of lack of lack of reliability and opinions based on improper matters.

Defendants’ objections to Coulson Exhibits 1-7 are SUSTAINED and the motion to strike is GRANTED on the ground of hearsay. These documents are out-of-court statements attempting to establish the truth of the matters asserted regarding odor impacts and causes. The 288 data sheets do not contain the required language under California Code of Civil Procedure section 2015.5 to constitute code-compliant declarations.

The objections to/motions to strike the expert declarations are OVERRULED. Although the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative, “[t]he court must not weigh an opinion’s probative value or substitute its own opinion for the expert’s opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies. Rather, it conducts a ‘circumscribed inquiry’ to ‘determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert’s general theory or technique is valid.’ [Citation.] The goal of trial court gatekeeping is simply to exclude ‘clearly invalid and unreliable’ expert opinion. [Citation.]” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772.)

Here, the Court finds that Mr. Weeks, Dr. Cole, and Dr. Dai are eminently qualified in their fields and they provide opinions that are related to subjects sufficiently beyond common experience so as to assist the trier of fact, and are based on proper matters for experts in forming their opinions. (See Cal. Evid. Code, § 801.) For the most part, the opinions provide fully reasoned explanations for the conclusions. The Court does not feel that these experts’ opinions are “clearly invalid and unreliable” for purposes of striking them completely. The Court will however consider both the parties’ arguments attacking the expert declarations in weighing the probative value of the evidence.

d. Analysis

California Code of Civil Procedure section 382 authorizes class actions “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.”

“The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. [Citations.] The ‘community of interest’ requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. [Citation.] [¶] The certification question is ‘essentially a procedural one that does not ask whether an action is legally or factually meritorious.’ [Citation.] A trial court ruling on a certification motion determines ‘whether … the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.’ [Citations.]” (Sav-On, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.)

“In determining whether sufficient community of interest exists to justify the maintenance of a class action, we start from the settled premises: Before the imposition of a judgment binding on absent parties can be justified, it must be shown that substantial benefits both to the litigants and to the court will result. [Citations.] The burden of such a showing falls on plaintiff [citation], and the ultimate determination of whether the class action is appropriate turns on the existence and extent of common questions of law and fact.” (City of San Jose, supra, 12 Cal.3d at p. 460.)

“The ‘ultimate question’ the element of predominance presents is whether ‘the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.’ [Citations.] The answer hinges on ‘whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment.’ [Citation.] A court must examine the allegations of the complaint and supporting declarations [citation] and consider whether the legal and factual issues they present are such that their resolution in a single class proceeding would be both desirable and feasible. ‘As a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.’ [Citations.]” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021-1022; see Sav-On, supra, 34 Cal.4th at p. 333 [“[A] class action is not inappropriate simply because each member of the class may at some point be required to make an individual showing as to his or her eligibility for recovery or as to the amount of his or her damages.”].)

“ ‘When the trial court determines the propriety of class action treatment, “the issue of community of interest is determined on the merits and the plaintiff must establish the community as a matter of fact.” [Citation.]’” (Dept. of Fish and Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1350-1351.) “In assessing the plaintiff’s expert evidence, the court should consider all the evidence, including that of the defendant’s experts, in order to determine if the plaintiff’s evidence establishes the predominance of common issues on the merits of the case. Were it otherwise, a ‘plaintiff could pick and choose among the facts to present to the court, providing an incomplete picture of the litigable issues, in order to ensure a certification.’ [Citation.]” (Id. at p. 1351, citing Quacchia v. DaimlerChrysler Corp. (2004) 122 Cal.App.4th 1442, 1448.)

To assess whether the theory of recovery advanced by Plaintiffs is likely to prove amenable to class treatment, the Court first looks to the legal theories set forth in the operative Complaint: public nuisance, private nuisance, trespass, and negligence.

“Civil Code section 3479 insofar as pertinent here, defines a nuisance as ‘Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, . . .’ This section has been liberally construed. [Citations.]” (Farmy v. College Housing, Inc. (1975) 48 Cal.App.3d 166, 173.)

A private nuisance is “a nontrespassory interference with the private use and enjoyment of land. [Citation.] In distinction to trespass, liability for nuisance does not require proof of damage to the plaintiff’s property; proof of interference with the plaintiff’s use and enjoyment of that property is sufficient. [Citation.] In further distinction to trespass, however, liability for private nuisance requires proof of two additional elements. This requirement flows from the law’s recognition that ‘Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together. The very existence of organized society depends upon the principle of “give and take, live and let live,” and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person’s conduct has some detrimental effect on another. Liability for damages is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation.’ [Citation.]” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937-938.)

“The first additional requirement for recovery of damages on a nuisance theory is proof that the invasion of the plaintiff’s interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial actual damage.’ [Citations.] The Restatement recognizes the same requirement as the need for proof of ‘significant harm’ [citation], which it variously defines as ‘harm of importance’ and a ‘real and appreciable invasion of the plaintiff’s interests’ [citation] and an invasion that is ‘definitely offensive, seriously annoying or intolerable’ [citation]. The degree of harm is to be judged by an objective standard, i.e., what effect would the invasion have on persons of normal health and sensibilities living in the same community? [Citation.] ‘If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncracies of the particular plaintiff may make it unendurable to him.’ [Citation.] This is, of course, a question of fact that turns on the circumstances of each case.” (Id. at p. 938.)

“The second additional requirement for nuisance is superficially similar but analytically distinct: ‘The interference with the protected interest must not only be substantial, but it must also be unreasonable’ [citation], i.e., it must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’ [Citations.] The primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant’s conduct, taking a number of factors into account. [Citation.] Again the standard is objective: the question is not whether the particular plaintiff found the invasion unreasonable, but ‘whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.’ [Citation.] And again this is a question of fact: ‘Fundamentally, the unreasonableness of intentional invasions is a problem of relative values to be determined by the trier of fact in each case in the light of all the circumstances of that case.’ [Citation.]” (Id. at pp. 938-939.)

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Cal. Civ. Code § 3480.) “A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as defined in Section 3480 of the Civil Code, by the district attorney or county counsel of any county in which the nuisance exists, or by the city attorney of any town or city in which the nuisance exists. Each of those officers shall have concurrent right to bring an action for a public nuisance existing within a town or city. The district attorney, county counsel, or city attorney of any county or city in which the nuisance exists shall bring an action whenever directed by the board of supervisors of the county, or whenever directed by the legislative authority of the town or city.” (Cal. Code Civ. Proc., § 731.) “Ordinarily the abatement of [a public nuisance] is the business of the sovereign, acting through its law officers. [Citations.] ‘A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.’” (Diamond v. General Motors Corporation (1971) 20 Cal.App.3d 374, 378; Cal Civ Code, § 3493.) “Whether an individual has been specially injured in his person will depend largely upon such proof relating to him alone – going to such matters as his general health, his occupation, place of residence, and activities. Whether a parcel of real property has been damaged will depend upon its unique characteristics, such as its location, physical features and use.” (Diamond, supra, 20 Cal.App.3d at p. 379, footnote omitted.)

“[T]respass involves interference with the right of another to sole possession of his land and may be committed by an act which is intentional, reckless or negligent, or the result of ultrahazardous activity. [Citation.]” (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 107.)

“Negligence is either the omission of a person to do something which an ordinarily prudent person would have done under given circumstances or the doing of something which an ordinarily prudent person would not have done under such circumstances.” (Fouch v. Werner (1929) 99 Cal.App. 557, 564.) “The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’ [Citation.]” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834.)

Defendants rely on a number of cases such as Lockheed Martin, supra, 29 Cal.4th 1096, City of San Jose, supra, 12 Cal.3d 447, Department of Fish and Game v. Superior Court (2011) 197 Cal.App.4th 1323, and Frieman, supra, 116 Cal.App.4th 29, where certification of private nuisance actions was denied due to the predominance of individualized inquiries. In City of San Jose, the California Supreme Court held that an action for nuisance alleging diminution in market value for homes affected by aircraft noise, vapor, dust and vibration was “predicated on facts peculiar to each prospective plaintiff” including “[d]evelopment, use, topography, zoning, physical condition, and relative location[.] . . . No one factor, not even noise level, will be determinative as to all parcels.” (City of San Jose, supra, 12 Cal.3d at p. 461, footnote omitted.) In Department of Fish and Game, the appellate court followed the City of San Jose case to find that common issues of law and fact would not predominate in a nuisance action based on the poisoning of Lake Davis by the Department of Fish and Game to eradicate an invasive species of fish. “[T]he impact of the 2007 poisoning, like the impact of a physical invasion in City of San Jose, may be different depending on the particular characteristics and location of each individual parcel. And in light of the claims asserted by plaintiffs, these differences are more than just a matter of damages, but go to the fundamental issues of liability.” (Dept. of Fish and Game, supra, 197 Cal.App.4th at p. 1337.) In Frieman, the appellate court affirmed the denial of certification in a nuisance case by individuals residing near a quarry, finding that “multiple factors…would affect how each location would receive noise, including the presence of acoustically absorptive landscaping, type of nearby ground, location of ridgelines, man-made obstacles, atmospheric conditions, construction design and other factors.” (Frieman, supra, 116 Cal.App.4th at p. 39.) Finally, in Lockheed Martin, the Supreme Court affirmed the denial of certification in a nuisance action alleging contamination of drinking water by 12 different toxic substances due to the predominance of individualized issues regarding dosages and duration of exposure to polluted water and the genetic makeup of the target individual for purposes of determining whether the dosages exceeded maximum contaminant levels. (See Lockheed Martin, supra, 29 Cal.4th at pp. 1109-1110.)

None of these cases involved a proposed form of modeling such as AERMOD that could (theoretically) measure the dispersion, intensity, and frequency of impacts of the alleged nuisance. While Defendants have gone to great lengths to challenge Mr. Weeks’ use of AERMOD as a means of proving nuisance liability, most of their opposing experts criticize the data inputs and assumptions used by Mr. Weeks in performing his air dispersion modeling; they do not all challenge the viability of air dispersion modeling as a means of demonstrating odor impacts in a nuisance case involving odor. While Dr. Dai argues that AERMOD is inherently unreliable for the purpose of tracing odor, his statement is conclusory and disputed by Mr. Weeks. Most of Dr. Dai’s detailed criticisms, like the criticisms of the other defense experts, pertain to the data used and assumptions made by Mr. Weeks, which begs the question: if accurate, site-specific information like collection efficiency, odor emission flux and odor unit concentrations are obtained and used in the model, would it be a viable means of proving the impact of odor emissions from NIRRP for a given geographical region? Whether the measured level (5 D/T or 7 D/T or something altogether different) satisfies the standards for nuisance is a merits question rather than an issue for certification. This method of proving (or disproving) liability could potentially provide a substantial benefit to the Court and the parties when compared to multiple individual nuisance suits arising out of the same circumstances.

The Court is not persuaded by the Dalton testimony or Defendants’ arguments regarding the subjectivity of odor perception. As discussed above, the degree of harm to be judged in a nuisance action is based on an objective standard. Thus, Plaintiffs’ proposed model poses the question of whether a certain measurable odor impact would cause a normal, reasonable person living near the NIRRP to be substantially annoyed or disturbed. The subjective idiosyncrasies of particular class members – whether it is a unique sensitivity or tolerance to the measurable odor impact – would be irrelevant to the liability question of whether the NIRRP odor emissions, as traced and measured through AERMOD, impacted class members.

The law of nuisance also requires that the invasion be both substantial and unreasonable (gravity of harm outweighs social utility). (San Diego Gas & Electric, supra, 13 Cal.4th at pp. 938-939.) However, on a motion for class certification, the Court is not called upon to consider whether a proposed trial plan will succeed on the merits. (See Sav-On, supra, 34 Cal.4th at p. 326.) So long as Plaintiffs’ proposed method of proving liability remains predominantly based on common issues of law or fact, whether the results of AERMOD satisfy the substantial and unreasonable standards remains an issue for another day.

Out of Plaintiffs’ claims, the trespass claim seems most easily suited to class treatment, assuming that air dispersion modeling can prove the deposition of particulates on class members’ properties. “[E]very trespass is an invasion of a legal right of another and carries with it the right to nominal damages. [Citations.]” (Costerisan v. Melendy (1967) 255 Cal.App.2d 57, 60.) Although Defendants criticize Weeks’ model as showing “literally unnoticeable deposits of dust[,]” this goes to the merits of the trespass claim, not the ability to prove the movement and presence of particulates on class members’ properties for purposes of establishing their right to recover at least nominal damages.

Nevertheless, the Court is not fully persuaded of AERMOD’s viability as a method of common proof. It is not clear whether AERMOD can be used to provide different results for different homes or clusters of homes (for purposes of creating subclasses), depending on unique variables such as proximity, location, terrain and any other relevant environmental or topological factors. Mr. Weeks’ report seems to suggest that AERMOD would only be used to provide one general odor impact result for everyone in the proposed class (7 D/T or greater 104 times in a two year period, 5 D/T or greater 208 times in a two year period). However, it seems that in order to prove that odor impacts were substantial, a proper model should have the precision to factor in such variables. It is also not clear to the Court whether and how Mr. Weeks’ proposed modeling can differentiate between odors that emanate from the NIRRP versus the SJ/SC WCPC. Mr. Weeks attempts to differentiate the odors by citing to the descriptions of the odors in the data sheets, but aside from the inadmissibility of these documents, the subjective descriptions of individual class members are too unreliable in the Court’s opinion to objectively trace the experienced odors to the landfill. Mr. Weeks also did a comparison of odor emissions between NIRRP and SJ/SC WCPC in order to conclude that “landfill odor emissions…are much more significant than the odor emissions from the WCPC.” However, this is merely a quantitative comparison. Plaintiffs’ model must still be able to provide some rational way to distinguish the odors in order to attribute liability to Defendants. These questions prevent the Court from granting certification on the nuisance and negligence claims.

There are further questions. If Ng is not a property owner, he lacks the property rights to bring a private nuisance action. (See Trinkle v. California State Lottery (1999) 71 Cal.App.4th 1198, 1205 [“A private nuisance action can be brought only by those who have property rights in respect to the use and enjoyment of land”; see also Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 456, 458 [“California cases upholding an award of annoyance and discomfort damages have involved a plaintiff who was in immediate possession of the property as a resident or commercial tenant”].) Thus, Ng would be subject to a defense that is atypical from the rest of the putative class. The public nuisance claim seems unsuitable to class treatment given the requirement of a special injury that is different from the general public. (See Diamond, supra, 20 Cal.App.3d at p. 379, footnote omitted.) Regarding the negligence claim, Plaintiffs do not adequately explain how the elements of causation and resulting injury will involve predominantly common questions of fact or law among the putative class. While AERMOD provides a potentially viable way of demonstrating odor impacts on the proposed class, annoyance and discomfort in the nuisance context are distinct from general damages in tort. (See Kelly, supra, 179 Cal.App.4th at p. 456; see also Lussier, supra, 206 Cal.App.3d at p. 104: “[O]ne may be liable for a nuisance even in the absence of negligence.”) For damages such as renovation costs, Plaintiffs would have to demonstrate that such damages are causally related to the alleged odor nuisance, which threatens to be a predominantly individualized inquiry.

Finally, Defendants raise a valid point that the proposed class definition appears to be overly broad, and therefore lacks ascertainability. “[C]lass certification can be denied for lack of ascertainability when the proposed definition is overbroad and the plaintiff offers no means by which only those class members who have claims can be identified from those who should not be included in the class. [Citation.] However, class certification should not be denied on overbreadth grounds when the class definition is only slightly overinclusive. [Citations.]” (Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1533, fn. 8.) Here, the geographic boundaries for the proposed class definition (which are different from the Complaint’s simple two-mile radius) appear to have been chosen based on the data sheets submitted by residents. However, if Plaintiffs’ only way to distinguish those who have claims from those who do not is through individualized evidence, then this runs counter to the notion that common questions will predominate. Defendants’ experts persuasively suggest that the current class definition is more than slightly overinclusive.

Because of these lingering questions, and based on the current evidence on record, including Defendants’ challenges to Plaintiffs’ evidence, the Court finds that Plaintiffs have not sufficiently carried their burden of establishing the existence of an ascertainable class and a well-defined community of interest among the proposed class members. For these reasons, Plaintiffs’ motion for class certification is DENIED WITHOUT PREJUDICE.