OPINION AND ORDER
I. INTRODUCTION
In this consolidated multi-district litigation (“MDL”), plaintiffs seek relief from contamination, or threatened contamination, of groundwater from various defendants’ use of the gasoline additive methyl tertiary butyl ether (“MTBE”) and/or tertiary butyl alcohol (“TBA”), which is a product formed by the natural degradation of MTBE in water. The parties have already engaged in extensive motion practice, and familiarity with the Court’s previous opinions is assumed. 1 The facts underlying this case are comprehensively set out in those opinions. 2
Defendants now move for summary judgment on plaintiff Orange County Water District’s (“OCWD”) claims based on its “lack of a cognizable interest.”
3
Specifically, defendants argue that because any alleged groundwater contamination has not injured OCWD’s property, any damages it sustained are purely economic and cannot be recovered under either product liability or negligence theories.
4
Similarly, defendants argue that OCWD’s trespass claim fails because it has not identified any “possessory interest in land” that has been invaded.
5
Further, defendants argue that OCWD’s public nuisance claim should be dismissed because it is
II. APPLICABLE LAW
A. Summary Judgement
Summary judgment is only appropriate where the record “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” 8 An issue of fact is genuine if “ ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party,’ ” 9 while a fact will be deemed material where it “ ‘might affect the outcome of the suit under the governing law.’ ” 10 Further, even though plaintiffs allegations are taken as true, the claim may still fail as a matter of law if it appears beyond doubt that plaintiff can prove no set of facts in support of its claim which would entitle it to relief, or if the claim is not legally feasible. 11
The moving party bears this burden of demonstrating that there exists no genuine issue of material fact. 12 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact that does “not rely on conclu-sory allegations or unsubstantiated speculation.” 13 To do so, it must do more than show that there is “ ‘some metaphysical doubt as to the material facts.’” 14 In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party’s favor. 15
III. DISCUSSION
A. Negligence and Products Liability
Defendants argue that OCWD seeks damages solely for economic losses which, in the absence of property damage, cannot be recovered under theories of either negligence or products liability.
16
Essentially, defendants argue that because OCWD does not complain of any MTBE contamination of its own wells, and because OCWD does not own the groundwater which it alleges has been or is threatened with MTBE contamination, it has no viable property interest capable of being damaged.
17
OCWD, in turn, contends that it
1. Property Interest
Whether OCWD has a valid property interest in the groundwater is a threshold question. In California, the groundwater is not owned by any individual or governmental entity but rather by “the people of the State” for whom the “State as an entity is the holder of the legal title as trustee for the benefit of the people of the state.” 20 However, a usu-fructuary interest may be acquired and this interest will be deemed to be a “pos-sessory property right.” 21
Unlike a water provider, OCWD does not own or operate a network of wells used to provide water to the public.
22
Rather, OCWD’s functions are, among other things, “managing, replenishing, regulating, and protecting” the groundwater within its geographic area of responsibility.
23
Accordingly, unlike other plaintiffs in this MDL, the thrust of OCWD’s allegations is not linked to contamination of its own wells or other real property, but rather to its legal interests in the groundwater arising from its statutory authority and usu-fructuary rights.
24
Thus, while OCWD does not specifically allege that MTBE contamination of the groundwater is a con
Usufructuary rights generally arise from “some physical act with respect to the water by the appropriator to manifest the possessory right.” 27 The appropriative right, however, may also “be based on conservation of groundwater through substitution of, or replenishment from, an alternative supply.” 28 OCWD argues that through its replenishment of the groundwater basin it has acquired a corollary “legal right to withdraw an equivalent amount of water from the basin.” 29 Thus OCWD asserts that it has usufructuary rights arising from its replenishment activities. Defendants suggest that such rights arise only when a well is drilled, not through recharge activities. 30 Defendants are simply wrong.
OCWD’s enabling Act specifically charges it with the power to “[a]ppropriate and acquire water and water rights within or outside of the district.” 31 In accordance with this mandate, OCWD has acquired a usufructuary right through its replenishment activities under California law. 32 Because OCWD has a “possessory property right” that it alleges has been damaged by defendants’ conduct, neither its negligence nor products liability claims are barred for lack of a cognizable interest. 33
2. The Economic Loss Doctrine
Defendants cite a line of California cases beginning with
Seely v. White Motor Co.
34
for the proposition that until a defec
Defendants correctly state the economic loss doctrine: In the absence of physical injury to property, a plaintiffs economic losses cannot support a claim for negligence or products liability. However, where the defective product causes physical damage to property courts have also allowed recovery for economic loss. 37
Here, OCWD has alleged present, physical MTBE contamination of the groundwater, in which it asserts a possessory right. To the extent that such contamination is actually present in the groundwater and has caused OCWD to expend resources in testing and remediating groundwater, or otherwise injured OCWD, such claims are not barred as mere economic loss.
B. Trespass
Defendants next argue that OCWD’s claims for trespass must fail because it has no “possessory interest in real property” with which the alleged MTBE contamination has interfered. 38 However, usufructuary interests are possessory property rights and the interference with those rights may give rise to liability for trespass. Groundwater contamination can constitute a trespass, where there is a “physical invasion” that results in the “presence of contamination on [the] property.” 39 Although OCWD’s “possessory interest” in the groundwater is not the equivalent of owning land, its property right has nevertheless suffered an invasion from the alleged MTBE contamination. As noted earlier, the OCWD Act gives OCWD the authority to acquire usufructuary rights, and it has done so through its recharge activities. 40 As a result, OCWD has stated a valid claim for trespass.
C. Public Nuisance
This Court has previously held that OCWD is statutorily authorized to pursue a claim of public nuisance.
41
Defendants
1. Creating or Assisting in the Nuisance
While it is true that “the law of nuisance is not intended to serve as a surrogate for ordinary products liability,” California courts have allowed nuisance claims to proceed where the manufacturer’s or distributor’s actions have “created or assisted in the creation of the nuisance.”
43
Such actions, however, must amount to more than simply the manufacture or distribution of the defective product — rather, a defendant must take other “affirmative acts” that contribute “directly” to the nuisance.
44
Importantly, a failure to warn regarding the dangers of a product, without more “activity directly connected” to the creation of the nuisance, is an insufficient basis for nuisance liability.
45
But where a defendant engages in
The question here is whether the evidence presented at this stage shows that “defendants assisted in the creation of a nuisance, or only that they produced or supplied the defective products.” 47 Defendants contend that there is no evidence that they assisted in the creation of the nuisance because they took no “affirmative steps” which contributed to the nuisance nor “specifically instructed” improper use. 48
OCWD argues that defendants did more than merely manufacture or distribute gasoline containing MTBE without warning of the danger posed. OCWD contends that defendants “represented, asserted, claimed and warranted” that gasoline containing MTBE “could be used in the same manner as gasoline [without MTBE]” and that it “did not require any different or special handling instructions.” 49 Further, OCWD states that defendants “marketed and promoted MTBE knowing that underground storage tanks ... could not safely contain MTBE.” 50 At the same time, according to OCWD, defendants knew that such claims were false and that MTBE posed “unique dangers” to groundwater. 51
These allegations are remarkably similar to those in Santa Clara, and a key sentence from that decision bears repeating: “[Liability is premised on defendants’ promotion of lead paint for interior use with knowledge of the hazard that such use would create.” 52 If the allegations made by OCWD are true, such allegations would be sufficient to sustain a nuisance claim against the defendants. 53
But neither side offers sufficient evidence to support their competing arguments regarding summary judgment. Defendants concede that California law permits nuisance claims against manufacturers of defective products in some circumstances, but do no more than assert
2. Distinct Injury
[12, IB] While a nuisance action may be brought against the manufacturer of a defective product, the remedy for a public nuisance will generally be limited to abatement. Damages cannot be recovered unless a plaintiff can show it has been injured in a manner distinct from that suffered by the general public. 57
In Santa Clara, for example, the plaintiffs brought two public nuisance actions: the first was brought as a representative of the people, and sought abatement; the second was brought on behalf of a class of plaintiffs whose property had been injured, and sought damages. The court allowed plaintiffs’ first nuisance claim, finding that representative actions seeking abatement did not present the same concerns articulated in Modesto over holding manufacturers of defective products liable for damages in nuisance:
A representative public nuisance cause of action seeking abatement of a hazard created by affirmative and knowing promotion of a product for hazardous use is not “essentially” a products liability action “in the guise of a nuisance action” and does not threaten to permit public nuisance to “become a monster that would devour in one gulp the entire law of tort.” 58
On the other hand, the
Santa Clara
court held that the plaintiffs could not bring damages claims
on their own behalf
under a theory of public nuisance: “Plaintiffs’ [second] public nuisance cause of action is much more like a products liability cause
As in Santa Clara, OCWD may seek abatement in its representative capacity. But the remaining question is whether OCWD can recover for damages on its public nuisance claim. In New Mexico v. General Electric, for example, the court noted that in order to recover for property damage, the State would have to show that it “suffered some discrete physical harm or pecuniary loss apart from the more generalized injury to the public’s interest” resulting from the groundwater contamination. 60 The court stated that “pecuniary losses arising from existing and future response and remediation costs ... may be recoverable as damages reflecting a ‘special injury’ to the State’s property interests,” but that because the State had not established its usufructuary interests, it was barred from recovering damages. 61
Here, OCWD alleges that it “is specially and adversely affected by the nuisance” and that its “injury is separate and distinct from that of the public.” 62 OCWD has established a valid usufructuary interest which is independent of the State or the People’s general interest in groundwater. 63 Accordingly, OCWD may seek damages on its public nuisance claim to the extent that the alleged nuisance has interfered with that right.
D. Declaratory Relief
Finally, OCWD seeks an order declaring defendants liable for the “costs of all remedial and other actions necessary to abate or remove MTBE ... which is contaminating and threatening OCWD’s property,” declaring that certain defendants’ “gasoline delivery systems constitute a nuisance,” and compelling defendants “to abate the public nuisance proximately caused by their conduct.” 64
Defendants argue that OCWD’s claim for declaratory relief should be denied because it is duplicative of the other relief sought in this action.
65
Defendants’ point is well taken. Such relief is identical to that sought under OCWD’s common law claims for products liability, negligence, trespass, and nuisance. Declaratory relief is generally inappropriate where duplicative of other claims in the action as the “object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.”
66
Accordingly, defendants’ mo
IY. CONCLUSION
For the reasons set forth above, defendants’ motion for summary judgement is denied in part, and granted in part. The Clerk of the Court is directed to close this motion (docket # 1015).
SO ORDERED.
Notes
.See In re Methyl Tertiary Butyl Ether ("MTBE”) Prods. Liab. Litig.,
. For a thorough recitation of plaintiffs' fact allegations see, for example,
In re MTBE Prods. Liab. Litig.,
. See Defendants’ Memorandum of Law in Support of Motion for Summary Judgment of Plaintiff’s Claims Based on Plaintiff’s Lack of Cognizable Interest ("Def.Mem.”) at 1. In addition to its common law and equitable claims, OCWD asserts a statutory claim for violation of the OCWD Act. See Plaintiff’s Second Amended Complaint ("Compl.”) ¶¶ 102-108. Defendants do not challenge that claim in this motion. See Def. Mem. at 1 n. 1.
. See Def. Mem. at 1.
. Id. at 7.
. See id. at 12.
. See id. at 14.
. Fed.R.Civ.P. 56(c).
.
Williams v. Utica Coll. of Syracuse Univ.,
.
Bouboulis
v.
Transport Workers Union of Am.,
.
See Allaire Corp. v. Okumus,
.
See, e.g., Jeffreys v. City of New York,
.
Id.
at 554 (quoting
Fujitsu Ltd. v. Federal Express Corp.,
.
McClellan v. Smith,
.
See id.
(citing
Anderson, 477
U.S. at 255,
. See Def. Mem. at 8.
.
See id.
at 9 (citing
Seely v. White Motor Co.,
. See Plaintiff's Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment ("Pl.Mem.'') at 1.
. See id.
.
Selma Pressure Treating Co. v. Osmose Wood Preserving Co.,
.
In re MTBE Liab. Litig.,
. The undisputed facts show that OCWD does not own or operate any water production wells used "to extract or produce water for consumption.” Defendants' Response to Plaintiff's Local Rule 56.1 Statement Regarding Defendants’ Motion for Summary Judgment Based on Lack of Cognizable Interest ("Def.Resp.56.1.”) at 4.
. OCWD Act, California Water Code § 40-2(6)(a).
. OCWD does allege that it owns some wells and other real property. Specifically, OCWD owns and operates "wells that produce groundwater for injection and replenishment purposes.” Plaintiff's Local Rule 56.1 Statement in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Pl.56.1") at 2. Defendants urge that OCWD should be precluded from making claims regarding such wells because it previously admitted in its Rule 36 admissions that it did not own or operate any water production wells "used to extract or produce water for consumption by humans, animals, agriculture, or business.” Def. Resp. 56.1 at 6. Defendants' argument that plaintiff’s admission, which focuses on wells used for consumption, must "by any logical interpretation” also encompass wells used for other purposes is not convincing. Wells used for replenishment and injection activities are not the same as wells used for consumption. Nevertheless, plaintiff’s argument here focuses on its property interests arising from its usufructuary and statutory rights, and that is the subject of this Opinion. To the extent that wells owned by plaintiff have been contaminated by MTBE, plaintiff may well have a valid claim.
. See PL Mem. at 3 (“Defendants assert that the District 'does not own any water production wells or the groundwater aquifer and, accordingly, cannot claim that there have been detections of MTBE, TBA or any other petroleum substances in any of its property.' The District, however, has both statutory and usufructuary interests in the groundwater aquifer ....”) (citation omitted).
. Id. at 5.
.
Fullerton, 90
Cal.App.3d at 598,
. 12 Witkin’s Summary of California Law, ch. 17 § 958 (10th ed.2005) (citing California Water Code § 1005.1).
. Pl. Mem. at 5. See also Pl. 56.1 at 3 ("[T]he District has the right to appropriate groundwater within the District's boundaries to the extent that it has supplemented the aquifer through its recharge activities.”).
. See 8/22/06 Transcript of Oral Argument ("Tr.") at 101-102 (“You can obtain a usu-fructuary property interest in that groundwater, but in order to do so, you must divert it and put it to some beneficial use. And in non-lawyer terms, that is drilled wells ... they have never drilled a well, they [have] never diverted the groundwaters of the state to a beneficial use, [they have] no property interest.”) (John Lyons, counsel for defendant Conoco Phillips Co.).
. OCWD Act, California Water Code § 40-2(6)(d).
. The decision in
New Mexico v. General Elec. Co.,
.
Fullerton, 90
Cal.App.3d at 598,
.
.
See, e.g., Aas v. Superior Court,
. Def. Mem. at 9.
.
See, e.g., Transwestern Pipeline Co. v. Monsanto Co.,
. Def. Mem. at 13.
.
In re Burbank Envtl. Litig.,
.
See supra
notes 27-32 and accompanying text. The decision in
New Mexico v. General Electric
is again instructive. Although the court held that the State could not bring a claim for trespass in the absence of "property within the State's
exclusive possession, ”
it noted that the result would have been different if the State claimed "injury to the State’s pos-sessory interest as a water rights holder.”
New Mexico,
.
See In re MTBE Prods. Liab. Litig.,
.See
Def. Mem. at 11 ("California law does not permit nuisance claims to be brought against the manufacturers and suppliers of allegedly defective products.").
See also City of San Diego v. United States Gypsum Co.,
.
City of Modesto Redevelopment Agency v. Superior Court,
.
Id.
at 41-42,
.
Id.
at 42,
. In County of Santa Clara the court distinguished a passive failure to warn from the more active conduct necessary to sustain a nuisance action:
Liability [for nuisance] is not based merely on production of a product or failure to warn. Instead, liability is premised on defendants' promotion of lead paint for interior use with knowledge of the hazard that such use would create. This conduct is distinct from and far more egregious than simply producing a defective product or failing to warn of a defective product; indeed, it is quite similar to instructing the purchaser to use the product in a hazardous manner....
Santa Clara,
.
Modesto,
.
See
Def. Mem. at 13 (quoting
Modesto,
. PI. Mem. at 16 (citing Compl. ¶ 68).
. Id. (citing Compl. ¶ 61).
. Id. (citing Compl. ¶¶ 48, 50, 56, 61).
.
Santa Clara,
. As OCWD notes, this Court has previously ruled that a nuisance claim may be maintained against the manufacturer or distributor of gasoline containing MTBE where the manufacture or distribution is coupled with other actions that "demonstrate defendants' participation and assistance in the creation of a nuisance.”
In re MTBE Liab. Litig.,
. Fed-R.Civ.P. 56(e).
. PL Mem. at 15.
.
See id.
In reviewing the trial court’s grant of summary judgment in favor of the defendants and remanding that decision to the trial court for further consideration, the
Modesto
court found it significant that some defendants manufactured disposal systems "designed to dispose of wastes improperly,” while others “instructed users ... to dispose of wastes improperly.”
. See California Civ.Code § 3493. There is no such limitation for private nuisance actions. See id. § 3501.
.
Santa Clara,
. Id. at 313. Because Santa Clara was decided during the briefing period on this motion, neither party discussed the impact of this decision on OCWD’s request for damages.
.
New Mexico,
.
Id.
at 1240-41 (citing
Selma,
. Compl. ¶¶ 96-98.
.
See
12 Witkin’s Summary of California Law, ch. 17 § 958 (citing California Water Code § 1005.1).
See also New Mexico,
. Def. Mem. at 15 (citing Compl., Prayer for Relief ¶¶ 3-5).
. Id. at 13-14.
.
General of Am. Ins. Co. v. Lilly,