Pursuant to Section 437c(c) of the California Code of Civil Procedure, a motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A defendant can satisfy its burden on summary judgment by showing that the plaintiff cannot establish its claim because of the absence of evidence on some critical element of the claim. Union Bank V. Superior Court, 31 Cal. App. 4th 573, 590, 37 Cal. Rptr. 2d 653, 663 (1995). A plaintiff's factually devoid responses to discovery requesting that plaintiff provide supporting evidence for its claims are sufficient to show that the plaintiff cannot establish one or more necessary elements. Jd. See also, Hunter V. Pacific Mechanical Corp., 37 Cal. App. 4th 1282, 1288, 44 Cal. Rptr. 2d 335, 338, (1995). Such a showing shifts the burden of proof to the plaintiff to show that a triable issue of fact exists. Union Bank at 590, 37 Cal. Rptr. 2d at 663; C.C.P. § 437c(o)(2).
In Union Bank, supra, the plaintiffs sued the defendant for fraud and conspiracy to defraud. In the course of its discovery, the defendant propounded two requests for admission ("RFAs"), requesting that the plaintiff admit (1) "that [defendant] committed no fraud or deceit upon [plaintiffs]"; and (2) "that [defendant] did not participate in any conspiracy to defraud [plaintiffs]." Union Bank at 578, 37 Cal. Rptr. 2d at 655. Jd. The plaintiffs refused to admit the facts set forth in the RFAs. Accordingly, they were required to respond to form interrogatory number 17.1, served in conjunctionwith the RFAs, which requested supporting facts for the responses to the RFAs.1 However, the plaintiffs' responses to form interrogatory 17.1 contained none of the required facts, stating only that the plaintiffs believed the defendant knowingly and fraudulently took an assignment. Id. The defendant subsequently moved for summary judgment, citing the absence of facts in plaintiffs' discovery responses as evidence. The court held that the plaintiffs' factually devoid responses were sufficient to satisfy the defendant's burden of proof on summary judgment. Id. at 581, 37 Cal. Rptr. 657.
The facts of the present action even more compelling than those of Union Bank. In the present action, in order to prevail on any of the six causes of action asserted against Defendant, the plaintiffs must show, at a minimum, that the contamination occurred during Defendant's tenancy on the property. Years of discovery have showed plaintiffs' have no such facts.
In its initial round of discovery, served more than six years ago, Defendant propounded an interrogatory asking plaintiffs to state all facts supporting their contention that Defendant contributed to the soil contamination as alleged in the Amended Complaint. Sep. Stmt. at ¶ 1. On June 8, 1992, plaintiffs responded as follows:
"Plaintiffs are informed and believe that the underground storage tanks which caused the contamination of the property were present on the property and in use during Defendant's possession of the property. Plaintiffs lack sufficient information to further respond to this interrogatory at this time. Discovery is continuing, however, and Plaintiffs reserve the right, without assuming the obligation, to amend this response when further information becomes available."
Sep. Stmt. at ¶ 2. (emphasis added). Although they had six years to do so, Plaintiffs never amended their answer to this interrogatory, as permitted by C.C.P. § 2030(m). [Sep. Stmt. at ¶ 3.] Moreover, despite their representation that their case has been ready for trial since January 1993 [Sep. Stmt. at ¶ 4], plaintiffs have refused Defendant's recent request that they supplement the answer to this interrogatory. Sep. Stmt. at ¶ 5.
Accordingly, on June 30, 1998, Defendant propounded RFAs, requesting that plaintiffs admit they had no evidence to support their claims, along with Form Interrogatory 17.1, requesting evidence supporting any RFA responses that were not unequivocal admissions. [Sep. Stmt. at ¶¶ 6-7.] Specifically, Defendant's RFAs requested that plaintiffs admit that they could identify no facts to support the following allegations of the Amended Complaint:
that Defendant contributed to the contamination of the property (RFA No.1);
that diesel fuel, petroleum, petroleum byproducts, chemicals, and/or other toxic byproducts leaked into the soil on the property from any of the underground storage tanks on the property during the time that Defendant held a leasehold interest in the property (RFA No.2);
that diesel fuel, petroleum, petroleum byproducts, chemicals, and/or other toxic byproducts were present in the soil on the property prior to or during the time that Defendant held a leasehold interest in the property (RFA No.3); and
that Defendant knew that underground storage tanks had been and were leaking petroleum based substances, chemicals and other toxic byproducts, into the soil on the property during the time that Defendant held a leasehold interest in the property (RFA No.4).
Sep. Stmt. at¶6.
Plaintiffs not only completely refused to admit or deny the facts set forth in the RFAs, but also refused to even answer form interrogatory 17.1. [Sep. Stmt. at ¶¶ 8-9.] Instead, plaintiffs purported to object to each of the RFAs, as well as interrogatory 17.1, on the grounds of attorney-client privilege and work product and claimed that "[t]he proper time for discovery of this information is after expert designation.'t [Sep. Stmt. at ¶ 10.] Thus, like the plaintiffs in Union Bank, plaintiffs' discovery responses here clearly demonstrate that, even on the eve of trial, after having more than seven years to investigate their claims and obtain discovery, plaintiffs can make no showing that Defendant has any liability whatsoever for the contamination.
Nor can plaintiffs shift the burden of proof to Defendant on this critical issue of proof. Plaintiffs have argued that Zands V. Nelson, 797 F. Supp. 805 (S.D. Cal. 1992), somehow shifts the burden to Defendant. In Zands, the court held that under RCRA's strict liability standard, the plaintiff need only prove as part of its prima facie case that the defendants were engaged in strict liability activity. Once the plaintiff establishes the tortious conduct, the burden then shifts to the defendants to prove that their activity did not cause the contamination or to establish the extent of their liability. In the present case, plaintiffs have not established that Defendant was involved in any ultrahazardous activity. Moreover, the court in Zands expressly held that its burden shifting analysis applies only to contamination cases under the Resource Conservation and Recovery Act ("RCRA"). 797 F. Supp. at 815 n.4 ("The Court notes that this ruling only addresses RCRA contamination cases involving consecutive owners and consecutive operators"). Here, plaintiffs are not asserting a cause of action under RCRA, nor could plaintiffs assert a cause of action under RCRA.
Since plaintiffs have not presented any facts establishing Defendant's liability, Defendant is entitled to judgment in its favor.
Even if Plaintiffs could present evidence of Defendant's liability, which they cannot, their tort claims for negligence and strict liability are barred by the three-year statute of limitations for claims for injury to property. C.C.P. § 338(b); see also, Wilshire Westwood Associates V. Atlantic Richfield, 20 Cal. App. 4th 732, 739, 24 Cal. Rptr. 2nd. 562, 565 (1993). This case was filed on June 6, 1991; therefore, if the statute began to run before June 6, 1988, the action is barred.
Under California law, the statute of limitations begins to run with inquiry notice. As the Supreme Court stated in Jolly V. Eli Lilly & Co., 44 Cal. 3d 1103, 1110-11,245 Cal. Rptr. 658, 661-62 (1988), the limitations period begins to run once plaintiff "has notice or information of circumstances to put a person on inquiry." Id.; see also Wilshire Westwood at 740, 24 Cal. Rptr. 2d at 566. Information that would trigger an investigation or prompt a party to conduct an inquiry is all that is necessary to start the running of the statute. See, e.g., Mortkowitz V. Texaco, 842 F. Supp. 1232 C.D. Cal. 1994) (statutory requirements governing underground storage tanks sufficient to put property owner on inquiry notice of gasoline contamination).
Mortkowitz is directly on point. In Mortkowitz, property owners filed an action against a former tenant who allegedly caused file contamination on the property while operating a gasoline station. In finding that the property owners' tort claims were barred by the three year statute of limitations, the court held that "the exercise of reasonable diligence by the Plaintiffs would have led to the discovery of contamination on the property" before the statutory bar date. 842 F. Supp. at 1239. The court noted that the California legislature enacted strict requirements for underground storage tanks and that by July 1985, "Plaintiffs were subject to a statutorily defined duty of inquiry imposed by the Health and Safety Code." Id. at 1240. Further, the court held that plaintiffs' "knowledge that the property had been utilized as a gasoline station for twenty-seven years with some of the original tanks and piping should have put Plaintiffs on inquiry about possible soil contamination notwithstanding the duty of inquiry imposed upon them by law." Id. Thus, "[t]he combination of Plaintiffs' knowledge of the age of the underground tank system along with the statutory duty of inquiry imposed upon all owners and operators of underground tanks establishes as a matter of law that Plaintiffs should have been on notice of the possibility that their property may have been contaminated and that [a former tenant] may have caused some or all of the contamination." Id.
Similarly, in this case, plaintiffs should have discovered the contamination at least by the time they purchased the property in September 1987. At that time, plaintiffs knew there were underground storage tanks on the property. Moreover, plaintiffs admit in the Amended Complaint that the prior owners, "knew in or about January of 1987 that petroleum based substances, chemicals, and other toxic by-products had leaked from the underground storage tanks into the soil on the Property."2 [Sep. Stmt. at ¶ 15.] The prior owners' knowledge and statutory duty td take corrective action is imputed to plaintiffs as a matter of law. See Bradler V. Craig, 274 Cal. App. 2d 466, 472, 79 Cal. Rptr. 401, 405 (1969) plaintiffs are charged with the prior owners' knowledge or notice of defects on the property). Thus, the statute of limitations on plaintiffs' tort claims began to run no later than September 1987 and expired in September 1990, almost a year before plaintiffs filed this action in June 1991. As a result, plaintiffs' tort claims are barred.
Indemnity is designed to provide a mechanism for apportioning liability among joint tortfeasors who are responsible for another's injuries. An essential element of indemnity is that the person seeking indemnity is or will be legally obligated to pay damages to an injured third party. Where there is no injured third party, no cause of action for indemnity exists. See City of San Diego V. US. Gypsum, 30 Cal. App. 4th 575, 587-88, 35 Cal. Rptr. 2d 876, 884 (1994) (indemnity claim properly dismissed where plaintiff had not made any payments to a third party in settlement of a claim or satisfaction of a judgment).
City of San Diego is directly on point. In City of San Diego, the City brought an action for indemnity against several asbestos manufacturers for expenses the City had incurred abating asbestos-containing materials in its buildings. The City, however, admitted that it had not been sued nor had any claim been made by a third party for damages relating to the asbestos-containing materials. In affirming summary judgment for the defendants on the City's cause of action for indemnity, the court held that (1) where the City had "not incurred damages for payment to any third patty in settlement of a claim or in satisfaction of a judgment" and (2) where there was "no statute or regulation" that imposed 'joint liability on City and defendants for cost of managing or removing asbestos-containing building materials," the City and the defendants were not jointly and severally liable to a third party, and therefore the City could not sue for indemnity. 30 Cal. App. 4th at 587-88, 35 Cal. Rptr. 2d at 884.
Similarly, in this case, plaintiffs have not made any payments to an injured third party in settlement of a claim or satisfaction of a judgment. [Sep. Stmt. at ¶ 17.] In addition, as mentioned above, there is no statutory or regulatory authority that imposes joint and several liability on plaintiffs and Defendant for the costs of remediating gasoline contamination. See KFC Western, Jnc. V. Meghrig, 23 Cal. App. 4th 1167, 28 Cal. Rptr. 2d 676 (1994). Thus, plaintiffs have no basis for bringing an indemnity action to recover expenses incurred remediating petroleum contamination.
Plaintiffs' claim for statutory contribution for the costs to clean up hazardous substances under the California Hazardous Substance Act (California Health & Safety Code § 25363(e)) must fail for the additional reason that petroleum is expressly excluded from the definition of a "hazardous substance" under this Act. Thus Section 25363 does not apply in this case. See KFC Western, Inc. V. Meghrig, 23 Cal. App. 4th 1167, 1178, 28 Cal. Rptr. 2d 676, 683 (1994) (cost-recovery action under Health & Safety Code § 25363(e) for cleanup of gasoline-contaminated soil barred by the petroleum exclusion in section 25317); see also Ulvestad v. Chevron USA., Inc., 818 F. Supp. 292 (C.D. Cal. 1993). Accordingly, plaintiffs cannot assert a cause of action under the California Hazardous Substance Act.
For the foregoing reasons, Defendant respectfully requests that the Court grant summary judgment for it and against plaintiffs. Alternatively, if for any reason summary judgment cannot be granted, Defendant requests that the Court issue an order adjudicating that there is no merit to plaintiffs' causes of action for trespass, nuisance, negligence, strict liability for ultrahazardous activity, indemnity, or statutory contribution.
Footnotes:
1Judicial Council form interrogatory number 17.1 states:
"Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: ¶ (a) state the number of the request; ¶ (b) state all facts upon which you base your response; ¶ (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; ¶ (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing."
2 Plaintiffs also allege in Paragraph 8 of the Amended Complaint that defendants became aware of the contamination to the soil on or about January 6, 1987. [Sep. Stmt. at ¶ 16.]