In 1998, two VOC's, tetrachloroethylene (also known as perchloroethylene or PCE) and trichloroethylene (TCE), were detected in groundwater drawn from a drinking water well in the South Basin area operated by the Irvine Ranch Water District (IRWD). Three years later, perchlorate was also detected in the well. The District believed these detections reflected more extensive groundwater contamination than it had previously been aware of. The District undertook efforts to identify the source of groundwater contamination and engaged consultants to recommend further avenues of investigation. The District's goal was to determine the extent of groundwater contamination in the South Basin area and develop a plan to remediate it. Although the District's investigation has continued, it had not yet developed a final treatment plan or remediated any contamination by the time of the underlying litigation.
During its investigation, the District filed suit against various current and former owners and operators of certain sites in the South Basin area that it believed were in some way responsible for groundwater contamination, including the following defendants at issue in this appeal: Accurate Circuit Engineering, Inc. (Accurate Circuit); Beatrice Companies, Inc. (Beatrice); Bell Industries, Inc. (Bell); BorgWarner Morse TEC LLC (BorgWarner); Brenntag Pacific, Inc. (Brenntag); Dyer Business Associates, LP (Dyer); DRSS-1, LLC (DRSS); Embee, Inc. (Embee); Emerson Electric Co. (Emerson); Gallade Chemical, Inc. (Gallade); GE Aviation Systems LLC (GE Aviation); General Electric Company (GE); ICI Americas, Inc. (ICI); ITT Corporation (ITT); Marotta Controls, Inc. (Marotta); Ricoh Electronics, Inc. (Ricoh); SABIC Innovative Plastics US, LLC (SABIC); Sanmina Corporation (Sanmina); Soco West, Inc. (Soco West); Steelcase Inc. (Steelcase); UNISYS Corporation (UNISYS); and Universal Circuits, Inc. (UCI). The District sued a number of other parties that are not the subject of this appeal, either because they were dismissed at some point in the litigation or the District has not appealed the judgments in their favor.
The District asserted statutory claims for damages under the Carpenter-Presley-Tanner
The District appeals. It challenges the judgments on numerous grounds. In this opinion, we confirm that the HSAA allows the District to bring suit under the circumstances here ( Health & Saf. Code, § 25363, subd. (d) ) and that the District may recover certain remediation-related investigatory costs under the OCWD Act, section 8, subdivision (c). We will also address the HSAA's nonretroactivity provision ( Health & Saf. Code, § 25366, subd. (a) ) and conclude that its requirements were not satisfied here. We further conclude that the theory of continuous accrual applies to the District's negligence cause of action, such that no defendant except GE Aviation has shown the statute of limitations bars that claim.
As to the District's causes of action for trespass and nuisance, we conclude the District has raised a triable issue of fact regarding its potential groundwater rights in the South Basin. In doing so, we address the State of California's potential interests in groundwater (as allegedly delegated to the District), the District's regulatory powers over groundwater, and its rights based on its groundwater replenishment or recharge activities. We conclude the District's potential rights in groundwater are insufficient, on the current record in this case, to maintain a trespass cause of action. However, we determine that triable issues of fact preclude summary adjudication of the District's nuisance claim for all defendants except UCI. Finally, we conclude that most of defendants' site-specific arguments (primarily based on causation) do not entitle them to summary adjudication of any causes of action. The judgments will therefore be affirmed in part and reversed in part, as discussed in detail below.
The litigation underlying this appeal is separate from the litigation involving the District's remediation proposals for the "North Basin" area of Orange County, which we considered in two recently-filed opinions. ( Orange County Water Dist. v. MAG Aerospace Industries, Inc. (2017)
FACTUAL AND PROCEDURAL BACKGROUND
The District and Its Powers
The District is a public entity established by the California Legislature and empowered to manage, replenish, regulate, and protect groundwater supplies within its boundaries. (OCWD Act, §§ 1, 2.) Despite its name, the District is not a county water district under the County Water District Law ( Wat. Code, § 30000 et seq. ) or a state water district under the California Water District Law (id ., § 34000 et seq.). Instead, it operates under its own governing act, the Orange County Water District Act, with its own set of powers and responsibilities.
Under the OCWD Act, the District has the power to "[t]ransport, reclaim, purify, treat, inject, extract, or otherwise manage and control water for the beneficial use of persons or property within the district and protect the quality of groundwater supplies within the district." (Id. , § 2, subd. (6)(j).) To advance the goals of maintaining and protecting groundwater, the District may construct waterworks, acquire water rights, purchase and import water, store water in underground basins or surface reservoirs, and regulate the storage and use of groundwater in the District. (Id. , § 2, subds. (5), (6)(b), (c), (d) & (f).) The District must consent to any storage of groundwater by any other person within its boundaries (id. , § 2.1, subd. (a)), and the OCWD Act requires water producers, under threat of criminal prosecution, to
The District has the power of eminent domain (OCWD Act, § 2, subd. (10)) and broad powers to bring appropriate legal actions to further its goals and effectuate its powers (id. , § 2, subd. (9)). As to the latter, the OCWD Act provides, "To carry out the purposes of this act, [the District shall have the power] to commence, maintain, intervene in, defend, and compromise ... any and all actions and proceedings now or hereafter begun to prevent interference with water or water rights used or useful to lands within the district, or diminution of the quantity or pollution or contamination of the water supply of the district, or to prevent unlawful exportation of water from the district, or to prevent any
The District also has the power to investigate and remediate pollution and contamination in the surface and groundwater within its boundaries. (OCWD Act, § 8, subds. (a), (b).) If the District undertakes such work, it may recover its reasonable costs from the persons who caused the pollution or contamination under certain circumstances. (Id. , § 8, subd. (c).)
To maintain an adequate level of groundwater in its territory and protect groundwater quality, the District acquires water from various sources at its own expense and discharges it from District facilities in Orange County. This process replenishes or "recharges" groundwater in the Orange County groundwater basin, of which the South Basin is a part. The groundwater basin includes a number of aquifers, which extend up to 2,000 feet underground.
Although the District does not have any recharge facilities near the South Basin, the District's recharge efforts raise the level of groundwater there. The groundwater level increases because the entire basin is hydrologically connected, and the pressure response from the District's recharge activities in other parts of the Orange County groundwater basin is felt in the South Basin area.
The South Basin, Groundwater Contamination, and the District's Response
The South Basin lies along California State Route 55 near the former Tustin Marine Corps Air Station in southern Orange County. Defendants are current and former owners and operators of businesses at sites in the South Basin area. At least for purposes of this appeal, defendants appear to concede that hazardous substances were released at or near their sites at some point in the past few decades. Further details regarding the conditions at certain defendants' individual sites will be discussed below in connection with those defendants' site-specific summary judgment and summary adjudication motions. The District and other regulatory agencies were aware of hazardous substance releases at some or all of defendants' sites well before the commencement of this litigation, and certain sites were the subject of remediation activities under the supervision of other public authorities.
As noted, the IRWD operates drinking water extraction wells in the South Basin area. One such well, IRWD-3, began producing drinking water in 1997. A year later, two VOC's, PCE and TCE, were detected in water extracted by the well. Three years after that, perchlorate was also detected in IRWD-3.
In 2006, the District engaged a consultant, Todd Engineers, to prepare a work plan for further investigation of groundwater contamination in the South Basin. The objectives of the work plan included identifying its probable sources and delineating its extent. The District referred to the effort as the South Basin Groundwater Protection Project (SBGPP) and allocated
A year later, Todd Engineers submitted a "Technical Memorandum and Work Plan" for the SBGPP. The memorandum noted that contaminants had been detected at IRWD-3 and described the SBGPP as an effort "[t]o assist the IRWD in the assessment of current and future threats of contamination" and "to identify the source or sources of contamination in IRWD-3." To produce the memorandum, Todd Engineers reviewed public agency files relating to 55 sites in the South Basin area "that had potentially impacted groundwater." Todd Engineers identified sites where onsite and offsite groundwater contamination had been documented and analyzed groundwater flows and subsurface geology to determine which sites had the highest risk of contributing to contamination in water supply wells in the South Basin.
Todd Engineers concluded, "There is no shortage of candidate sites that could have caused observed impacts to IRWD-3 based on site-specific monitoring data. More than 30 industrial sites have impacted shallow groundwater with PCE, TCE, and/or perchlorate at concentrations at least one order of magnitude higher than recorded in IRWD-3." Todd Engineers identified a number of possible pathways for contamination to have reached IRWD-3. It concluded that the actual pathway was unknown based on existing data, but that areas northeast of IRWD-3 represented the area of highest risk to water supply wells. Todd Engineers identified a number of key data gaps that prevented full understanding of the nature, extent, and sources of contamination in the South Basin area. It developed a work plan to address the data gaps. The work plan, as described by District staff, involved a first phase of six groundwater monitoring wells and a second phase of nine groundwater monitoring wells, as well as technical analysis of the results. The estimated cost for the work plan was $6.1 million.
The next year, in 2008, District staff completed their own technical memorandum and an alternate plan for investigating contamination in the South Basin. The District's first phase plan involved six monitoring wells and associated technical analysis. The proposed budget for this plan was $625,000. District staff indicated that a phase two investigation would also be required, at an estimated cost of $3 to $5 million, to fully characterize the groundwater contamination and design a remediation program. The District completed installation of the six monitoring wells in 2009.
The District's monitoring wells confirmed the presence of VOC and perchlorate contamination. The District authorized additional "cone penetration" testing at various locations in the South Basin, at a cost of approximately $216,000. The District continued its investigation, and it began to develop plans for an interim treatment system. By 2012, it had engaged an environmental engineering firm to conduct a remedial investigation, feasibility study, and remedial action plan for the SBGPP as a whole. The budget for the firm's effort was approximately $819,000.
The District has estimated that the total cost for construction of a groundwater
The District's Allegations Against Defendants
In 2008, the District filed this lawsuit against a number of named defendants and 400 fictitiously named defendants to address current and threatened groundwater contamination in the South Basin. Each defendant at issue in this appeal was either named in the District's initial complaint or substituted for a fictitiously named defendant later during litigation. In its First Amended Complaint (FAC), the District alleged that it had discovered VOC and perchlorate contamination in the South Basin area of Orange County. It determined that "prompt action" was required to address threatened and existing contamination in the South Basin and initiated the SBGPP.
The FAC alleged that each defendant owned or operated a business "within the relevant area" where hazardous wastes (i.e., VOC's or perchlorate) had been released or that the defendant was otherwise responsible for such a release. As to certain defendants, the FAC included details regarding groundwater contamination at a defendant's site and specific VOC's released by that defendant. The FAC alleged, "Defendants' historical, current, and ongoing releases and disposal of significant quantities of hazardous substances and wastes, at various sites and facilities within the relevant area, have caused the contamination alleged in this Complaint. VOC's and perchlorate in the soil and groundwater, at, under, and emanating from, the sites pose an imminent and substantial threat to public health, natural resources, and the environment."
To support the District's cause of action under the OCWD Act, the FAC alleged that defendants "have caused and are causing" the District to incur costs to investigate groundwater contamination and pollution and that defendants "have caused, are causing, and will cause" the District to incur costs to remediate such contamination and pollution. The District sought to recover these costs, as well as the costs of unspecified "increased expenses," attorney fees, and a declaration regarding defendants' liability for future costs. Similarly, in its HSAA cause of action, the FAC alleged that defendants' hazardous substances releases had caused the District to incur necessary response costs, which it sought to recover from defendants, along with a declaration as to future liability.
The FAC also alleged causes of action for trespass and nuisance. As to trespass, the FAC alleged that the District "is the owner, actual possessor, and represents the interests of the owners and actual possessors of property rights and interests in the groundwater within its territory ...." The FAC alleged that defendants' release of hazardous substances, negligent remediation activities, and failure to warn constituted trespasses on the District's "property and interests" in the South Basin. The District claimed the same investigatory, remediation, and treatment costs described above, as well as punitive damages against certain defendants. As to nuisance, the FAC alleged that the defendants' contamination and pollution of groundwater constituted a nuisance, which "specially and adversely affected" the District and damaged the District's "property rights, water rights, and interests." In connection with this cause of action, the District claimed compensatory damages, punitive damages against certain defendants, and equitable relief requiring defendants to abate the nuisance.
The District's declaratory judgment cause of action alleged that "[a]n actual controversy exists concerning who is financially responsible for abating actual or threatened pollution or contamination of groundwater resources within the District by VOC's and perchlorate." The District sought "an adjudication of the respective rights and obligations of the parties," which it later specified as (in part) an order "declaring that defendants are liable for the full cost of all remedial and other actions necessary to abate and remove VOC's and perchlorate which are contaminating and threatening the district's property ...."
Pretrial Proceedings
In multiple and overlapping motions for summary judgment and summary adjudication, some (though not all) filed jointly, defendants challenged each
As to the District's claim under the OCWD Act, defendants pointed out that the OCWD Act allows recovery only of remediation costs, i.e., "reasonable costs actually incurred in cleaning up or containing the contamination or pollution, abating the effects of the contamination or pollution, or taking other remedial action." (OCWD Act, § 8, subd. (c).) Defendants claimed that the District had not incurred any remediation costs in connection with the SBGPP. Instead, the District's costs were merely "investigatory" and therefore not recoverable under the OCWD Act. Defendants asserted that the "District [had] no project or activity underway [that was] physically removing contamination from the aquifer in the South Basin." In opposition, the District acknowledged that it had not completed a final remediation plan for
In a similar vein, certain defendants argued that the District could not pursue a claim under the HSAA because the District was not itself liable for any contamination in the South Basin and therefore could not seek "contribution or indemnity" as those terms are used in the HSAA. ( Health & Saf. Code, § 25363, subd. (d).) In defendants' view, an HSAA "contribution" claim required a judgment against the District (see Coca-Cola Bottling Co. v. Lucky Stores, Inc. (1992)
Defendants challenged the District's trespass claim on the grounds that it did not "exclusively possess" the affected groundwater and therefore could not bring such a claim. Defendants pointed out that the District did not own
With respect to nuisance, defendants argued (among other things) that the District lacked sufficient property interests in the South Basin or its groundwater to maintain an action for private nuisance, that the District did not suffer a special injury sufficient to maintain an action for public nuisance, and that any groundwater contamination was not a "substantial and unreasonable" interference sufficient to support any claim for nuisance at all. The District pointed primarily to its recharge activities as evidence that it had an appropriative water right in groundwater in the South Basin, which was a sufficient property right to support both a public and private nuisance.
The trial court concluded that defendants had "met their burden of establishing that the District does not operate any groundwater production wells, does not extract or pump groundwater, and[ ] its recharge operations would not be effective in the South Basin[.]" The court was not persuaded that the District had any property rights in the South Basin, including by reason of its recharge activities. The court explained, "the District has never contemplated using the groundwater nor ever actually used the groundwater,
Defendants' common challenges to the District's negligence claim rested primarily on the statute of limitations. Defendants claimed that the District had actual or constructive knowledge of contamination at their sites at least as early as August 2003, and in some cases more than 15 years before then. Defendants argued that the District's knowledge triggered the three-year statute of limitations. ( Code Civ. Proc., § 338, subd. (b) ; Wilshire Westwood Assoc. v. Atlantic Richfield Co. (1993)
In rejecting the District's contrary argument, the court reasoned, "Actual knowledge of the full extent of the damage to property is not required before a plaintiff is held to the standard of actual knowledge for purposes of commencing the statute of limitations. [Citation.] For this reason, the Court does not adopt the District['s] argument that there is no appreciable harm to the District's property interests until 'the District confirms that contamination has escaped remedial efforts overseen by state and local regulators and threatens or contaminates groundwater used as a drinking water resource.[']" The court granted defendants' motions for summary adjudication of the District's negligence claim.
A number of defendants challenged the District's claims, primarily under the HSAA, on the alternative grounds specific to their sites (e.g., causation). The evidence supporting these motions is varied and voluminous, and the legal theories advanced in the motions differ among the defendants, in some cases significantly. We will discuss these motions, and the District's responses, in detail below. It is sufficient to mention here that the trial court granted summary adjudication in favor of several defendants on site-specific grounds in addition to other, more general grounds.
Through these motions, and in some cases additional motions for judgment on the pleadings challenging the District's claim for declaratory relief, Beatrice, Bell, BorgWarner, DRSS, Emerson, Gallade, GE, GE Aviation, ICI, Marotta, Ricoh, SABIC, Sanmina, UNISYS, and UCI obtained complete adjudication of the District's claims against them. The trial court entered judgments in their favor accordingly, and the District appealed.
The remaining defendants at issue in this appeal obtained summary adjudication of all the District's claims except under the HSAA and for
The court's written statement of decision comprehensively analyzed the language, history, and structure of the HSAA. The court believed that the phrase "contribution or indemnity" should be analyzed together as two various of the same concept, i.e., the allocation of damages among multiple tortfeasors. "Indemnity" in the court's view meant traditional equitable indemnity, which requires that the parties be responsible for a joint legal obligation.
Based on the evidence presented at trial, the court found that the District was not a responsible party under the HSAA and therefore could not maintain a claim for indemnity. A District employee testified that the District does not own any real property (including any overlying land) in the South Basin. Nor does the District pump or extract any groundwater in the South Basin. Another District employee referenced the District's diversion rights with respect to the Santa Ana River, but the point of diversion was miles away from the South Basin.
Given this conclusion, the court found that the District's claim for declaratory relief must fail. The court had previously determined that the District's declaratory relief claim was entirely dependent on its other claims. Having determined that the District's remaining claims had no merit (either by summary adjudication or at trial), the court found against the District on its declaratory relief claim as well.
The court entered judgment against the District and in favor of Accurate Circuit, Brenntag, Dyer, Embee, ITT, Soco West, and Steelcase. The District again appealed.
I. Standards of Review
The District appeals judgments following motions for summary judgment and summary adjudication, motions for judgment on the pleadings, and a bench trial. The standards governing our review of summary judgment and summary adjudication proceedings are substantively identical. (See California Bank & Trust v. Lawlor (2013)
"A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. [Citation.] The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence.' " ( Kahn v. East Side Union High School Dist. (2003)
"If the defendant 'carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.' [Citation.] 'The plaintiff ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action ....' " ( Schmidt v. Bank of America, N.A. (2014)
"[T]o determine whether there is a triable issue, we review the evidence submitted in connection with summary judgment, with the exception of
Courts are split regarding the proper standard of review for the trial court's evidentiary rulings in connection with motions for summary judgment and summary adjudication. (Compare Miranda v. Bomel Construction Co. (2010)
"Though summary judgment review is de novo, review is limited to issues adequately raised and supported in the appellant's brief." ( Christoff v. Union Pacific Railroad Co. (2005)
II. HSAA
A. Overview of Disputed Issues
In their motions for summary adjudication and during the bench trial, defendants
Defendants also raised a number of specific arguments based on the facts and expert analyses of their sites and activities. These arguments, and
B. The District's Ability to Bring Suit
The District argues that the court erred in finding, on summary adjudication and following its bench trial, that the District could not bring suit for "contribution or indemnity" under the HSAA in the absence of evidence that the District itself was jointly liable for remediation costs stemming from groundwater contamination in the South Basin. The HSAA reads in relevant part as follows: "A person who has incurred response or corrective action costs in accordance with this chapter, Chapter 6.5 (commencing with Section 25100), or the federal act may seek contribution or indemnity from any person who is liable pursuant to this chapter." ( Health & Saf. Code, § 25363, subd. (d).)
We comprehensively examined the scope of the HSAA's private right of action in our recent Alcoa opinion. ( Alcoa,
Defendants' arguments to the contrary effectively mirror those which we considered and found unpersuasive in Alcoa . We have assessed the arguments advanced in this appeal, including based on legislative history, and do not believe reconsideration of our conclusions in Alcoa is warranted. We therefore conclude that the trial court erred by rejecting the District's HSAA claim on the basis that the District had no ability to sue because it had not demonstrated that it was liable for remediation costs caused by groundwater contamination in the South Basin.
C. HSAA Elements: Causation and Potentially Responsible Parties
As noted, several defendants moved for summary adjudication of the District's cause of action under the HSAA on alternative grounds. These defendants challenged the District's ability to prove the elements of its HSAA claim, specifically the elements of causation and potentially responsible parties.
The HSAA is California's counterpart to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA;
Under CERCLA and the HSAA, " '[t]o prevail in a private cost recovery action, a plaintiff must establish that (1) the site on which the hazardous substances are contained is a "facility" under CERCLA's definition of the term, Section 101(9),
A response cost is " 'necessary' " if "there is a threat to human health or the environment and ... the response action is addressed to that threat." ( Carson Harbor, supra ,
The fourth element, potentially responsible parties, defines potential liable defendants by their relationship to the site at issue. "[T]he version [of CERCLA] ultimately passed by Congress ... imposed liability upon a class of responsible persons without regard to whether the person specifically caused or contributed to the release and the resultant response costs." ( Alcan Aluminum,
In their motions, several defendants challenged the District's ability to prove one or both of these elements. We will discuss each defendant or group of related defendants in turn. In summary, we conclude none of these defendants-BorgWarner and Emerson, GE Aviation, Marotta,
1. BorgWarner and Emerson
From 1955 to 1973, a predecessor of BorgWarner (according to the District's allegations) owned and operated a manufacturing plant at a site at 3300 South Standard Street in Santa Ana. It sold the site to Emerson in 1973. Emerson owned and operated the site until 1988 and continued to operate the site under lease until 1991. Emerson used the site for manufacturing electrical equipment.
When Emerson sold the site in 1988, preliminary environmental investigations led to concerns that "the historical use of halogenated [VOC's] may have resulted in the discharge of VOCs at the site." Further investigations revealed that "VOCs had significantly impacted soil and groundwater underlying the site," in decreasing concentrations down to at least 80 feet below the surface. Emerson developed a corrective action plan to remediate the site, which the Regional Water Quality Control Board (RWQCB) approved. The plan involved construction of a 1,190-foot bentonite slurry wall, over 2 feet thick, around the two primary sources of VOC contamination. The wall extended down to a clay aquitard, approximately 65 feet below the surface. Approximately 7.5 million gallons of groundwater and 40,600 tons of soil within the slurry wall were extracted, removed, and treated. Treated soil was then backfilled at the site.
Following these remediation efforts, significant contamination remained in groundwater. One groundwater monitoring well near the contamination sources detected 13,145 parts per billion (ppb) of total VOC's. Emerson
In March 1999, the RWQCB issued a "no further action" letter regarding the Emerson site. The RWQCB wrote, "Emerson has satisfactorily completed groundwater remediation at this site. Concentrations of VOCs in groundwater have been significantly reduced from over 100,000 ppb to an average of 256 ppb. The lateral and vertical extent of groundwater that has been impacted by VOCs is very limited, and is primarily confined to the area within the boundary of the slurry wall. Based on the mass and concentrations of VOCs that remain in the groundwater, the VOCs are not considered to be a threat to the beneficial uses of the Santa Ana Pressure Groundwater Subbasin. On the condition that the information provided to us was accurate and representative of existing groundwater conditions at the site, no further investigation or remediation of groundwater is required." The RWQCB concluded that "no further action at the site is necessary."
The RWQCB employee responsible for reviewing the Emerson site testified at deposition that "the VOCs that were left in the soil and groundwater did not represent
A District expert, Anthony Brown, acknowledged he "could not conclude that it is more likely than not that releases of contaminants at the Emerson facility pose a threat to water supply wells." He believed it was reasonable for the RWQCB to conclude, based on the data available at the time, that the remaining VOC's at the Emerson site did not constitute a threat to beneficial uses of the groundwater basin. He also believed it was reasonable for the
Based on these facts, BorgWarner and Emerson challenge the District's ability to prove that its response costs were "necessary" under the HSAA's third element, i.e., whether there is evidence that VOC releases from the Emerson site pose a threat to human health or the environment. (See Carson Harbor, supra , 270 F.3d at pp. 871-872 ; see also Alcoa,
This argument ignores the fact that VOC contamination remains in groundwater both at the Emerson site and offsite. At the Emerson site, the evidence shows that total groundwater VOC concentrations remained at 256 ppb after remediation. This concentration exceeds the applicable MCL's for the relevant VOC's in drinking water, as noted above: 5 ppb for TCE and PCE, 6 ppb for 1,1-DCE, and 200 ppb for TCA. (See Cal. Code Regs., tit. 22, § 64444.) A reasonable trier of fact could find that these concentrations posed a threat to human health or the environment, notwithstanding the RWQCB's conclusion that no further action was necessary at the site. ( Alcoa,
BorgWarner and Emerson point out that hydrogeological conditions at the Emerson site make it unlikely that groundwater contamination would migrate to a depth sufficient to impact drinking water production wells. But drinking water production wells are not the only environmental resource worth protecting. The environment includes both shallow and deep aquifers, and significant VOC contamination even in shallower groundwater could reasonably pose a sufficient threat to the environment justifying response costs.
2. GE Aviation
GE Aviation or its predecessors have leased a site at 2036 and 2040 East Dyer Road in Santa Ana since 1999. GE Aviation is the current operator of the site. It manufactures aircraft parts and equipment and, as part of its operations, uses various solvents, including PCE. Although solvents were detected in groundwater at the site, GE Aviation denied any responsibility for groundwater contamination. Brown, the District's expert, testified that he would not be able to conclude it was more likely than not that any hazardous substance releases at the site occurred after 1991, i.e., during the tenancy of GE Aviation or its predecessors.
Based on these facts, GE Aviation argues that it cannot be a potentially responsible party under the fourth element of an HSAA and CERCLA claim. It contends that it can be liable under that element only if the District presents evidence that a hazardous substance release or disposal occurred during its tenancy. GE Aviation is incorrect. The current operator of a site is, under most circumstances, a potentially responsible party under CERCLA and the HSAA. (
An operator need not itself have caused contamination or pollution to be liable; there is no exception to liability for "innocent" operators. ( Litgo New Jersey Inc. v. Commissioner New Jersey Dept. of Environmental Protection (3d Cir. 2013)
GE Aviation presented evidence that, at most, showed that a hazardous substance release had not occurred during its tenancy. It did not present evidence, for example, that it is not responsible for decisions about compliance with environmental regulations. GE Aviation therefore failed to meet its burden on summary judgment to show that the District could not establish this element of its HSAA claim, i.e., that it was not a potentially responsible party as a current operator. (See Kahn, supra ,
GE Aviation also argues that the District cannot establish causation. It claims it satisfied its burden on summary judgment by showing that it did not cause contamination (i.e., a hazardous substance release) at the site. GE Aviation misinterprets the causation requirement under the HSAA. As noted above, the District need not show that GE Aviation caused a release at the site. Instead, the HSAA's causation element requires the District to show that a release at the site-from whatever source-caused the District's necessary response costs. As a current operator, GE Aviation is strictly liable for any such releases, regardless when they occurred. (See Litgo, supra ,
Marotta owned a site at 2215 South Standard Avenue in Santa Ana from approximately 1954 until 1972. Its operations at the site included engineering, manufacturing, and testing pneumatic and hydraulic valve components. In its manufacturing processes, Marotta used TCE and PCE. TCE and PCE have been detected in soil and groundwater at the site.
A District employee testified at deposition that VOC contamination of soil and groundwater at the site occurred sometime before 1992. However, the District did not have any more specific information regarding when the VOC release or releases occurred or whether Marotta was the source. Brown, the District's expert witness, could not say whether it was more likely than not that Marotta released contaminants at the site.
Marotta argues it was entitled to summary adjudication of the District's HSAA claim because it did not "release[ ]" chemicals at the site. Although Marotta advanced this argument in the trial court, the court did not reach this argument because it ruled in Marotta's favor on a retroactivity defense. (We will discuss this retroactivity
Marotta's argument does not contain any legal analysis of the standards for liability under the HSAA or any citation to legal authority on that issue. As such, it is unpersuasive. And, in any event, Marotta's liability under the HSAA does not depend on whether the District can prove Marotta caused a "release" of hazardous substances at its site. Its liability as a former owner requires a showing only that it "disposed of" hazardous substances there. (
4. Ricoh
Ricoh manufactures various electronic components at several sites in Orange County. From 1978 through 1988, its manufacturing process for one such component, copy machine drums, involved the use of PCE. Testing in 1996 revealed PCE contamination in soil and shallow groundwater at two Ricoh sites. Ricoh embarked on a multistage remediation effort approved by the RWQCB. The effort included a groundwater treatment and extraction system, a dual-phase extraction system, and chemical injections.
In its opening brief, the District asserted that Ricoh did not obtain summary adjudication on "causation-related" grounds. Ricoh disputes this assertion, claiming in its separate respondent's brief that the court's summary judgment ruling was "based on Ricoh's site-specific evidence in granting summary judgment on all causes of action." Later in the same brief, Ricoh repeats this claim: "As noted at the outset, the trial court granted Ricoh's motion for summary judgment on alternative grounds-the grounds applicable to all Group One Defendants and the site-specific grounds applicable only to Ricoh."
Ricoh's claims are so broad as to be misleading. Ricoh does not distinguish among its causes of action, and it does not discuss the trial court's mixed ruling on the District's HSAA claim specifically. Nor does Ricoh explain how the court's conclusion, that triable issues of fact remained on the District's HSAA claim, could be interpreted as an alternate ground on which the court based summary judgment. A motion for summary adjudication may not be granted if it resolves only part of a cause of action (
Ricoh argues that the District's failure to address site-specific grounds for summary judgment in its opening brief forfeits any claim of error on appeal. (See Christoff v. Union Pacific Railroad Co., supra , 134 Cal.App.4th at pp. 125-126,
Ricoh further argues, in cursory fashion, "Alternatively, Ricoh's judgment should be affirmed based on the merits of its site-specific showing. As the trial court found, the elements of causation and damages are negated for every cause of action because undisputed evidence established that there is no threat to drinking water due to any alleged Ricoh contamination." Ricoh again misstates the trial court's findings. For the HSAA cause of action, the trial court did not find that the elements of causation and damages were "negated." Moreover, Ricoh does not discuss the merits of the District's causes of action at all. Instead, it again asserts that the District forfeited any claim of error because it did not discuss grounds for summary adjudication specific to Ricoh's site. Ricoh's argument is unpersuasive for the reasons we have already discussed.
Ricoh offers no other argument why its motion for summary adjudication should have been granted on site-specific grounds. Ricoh has therefore not shown it is entitled to summary adjudication on this basis.
5. Sanmina
Sanmina (or its predecessor) owned a site at 2215 South Standard Avenue in Santa Ana from 1987 until 1998. Sanmina manufactured circuit boards there. Sanmina's manufacturing process involved the use of the VOC solvent 1,1,1-TCA. Sanmina applied for a permit from the South Coast Air Quality Management District for a cold degreaser that would use one 55-gallon drum of 1,1, 1-TCA per month. Degreasers are a common source of VOC contamination.
VOC releases occurred at the site. Testing at the site revealed 1,1,1-TCA contamination in soil and wastewater ground samples. 1,1-DCE was detected at the site as well. 1,1,1-TCA can break down into 1,1-DCE.
District witnesses admitted they had no information regarding when VOC releases occurred and no information whether Sanmina itself released VOC's into the soil. Sanmina's expert agreed there was no evidence that Sanmina released 1,1,1-TCA or other VOC's at the site.
Sanmina argues, here as in the trial court, that the District could not prove it was a potentially responsible party under the fourth element of an HSAA and CERCLA claim. Because Sanmina is a former owner and operator of the site, the fourth element is satisfied if it "disposed of" hazardous materials there. (
As noted, "disposal" includes the spilling, leaking, or placing any hazardous waste "into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters." (
Viewing the evidence in the light most favorable to the District, we conclude there is a triable issue of fact regarding whether Sanmina (or someone at the site during Sanmina's ownership or occupancy) disposed of hazardous substances at the site. The evidence showed that Sanmina used a VOC solvent, 1,1,1-TCA, in its manufacturing process and that the same solvent was found in the environment at the site. A trier of fact could reasonably infer that Sanmina used substantial quantities of 1,1,1-TCA in at least one degreaser at the site. Based on expert testimony that degreasers are common sources of contamination, as well as the fact that 1,1,1-TCA contamination actually occurred at the site, a trier of fact could reasonably conclude that Sanmina (or some other party) disposed of 1,1,1-TCA during Sanmina's occupancy of the site. Based on the current record, a triable issue
In its order granting summary adjudication, the trial court focused on whether the District raised a triable issue of material fact regarding a release of a hazardous substance into soil or groundwater. Similarly, in its respondent's brief, Sanmina uses the terms "disposal" and "release" interchangeably. Sanmina asserts, "[A]s the trial court correctly noted, evidence of
6. Steelcase
Steelcase operated a furniture manufacturing facility at 1123 Warner Avenue in Tustin, California from the early 1970's until 2003. In the trial court and in this appeal, Steelcase focuses on the following allegedly undisputed material facts: (1) the District does not use water in the shallow aquifer; (2) drinking water wells are screened at depths significantly below the shallow aquifer; (3) contaminants from the Steelcase site had not reached or threatened to reach any drinking water well; and (4) contaminants from the Steelcase site had not reached or threatened to reach a depth from which drinking water is obtained.
Relying on these facts, Steelcase contends the District cannot establish causation under the HSAA. Although the trial court denied Steelcase's motion for summary adjudication on this ground, Steelcase reasserts its arguments on appeal as an alternate ground on which to affirm the judgment in its favor. (See Code Civ. Proc., § 906.) We are unpersuaded.
Even if Steelcase had not waived its arguments, we would find them unpersuasive. Under the HSAA, a plaintiff may recover "response or corrective action costs" in an indemnity action against a liable person. ( Health & Saf. Code, § 25363, subd. (d).) To recover its costs from Steelcase, the District must establish a causal connection between a release or threatened release at Steelcase's site and the District's recoverable costs. ( Alcoa,
7. UCI
From 1981 through 1990, UCI manufactured printed circuit boards at a facility located at 1800 Newport Circle in Santa Ana, California. UCI used 1,1,1-TCA as a solvent for screen cleaning and tape residue removal. UCI obtained a permit to store 1,1,1-TCA in a 1,000-gallon aboveground tank. In 1988, UCI reported using approximately 3,900 gallons of 1,1,1-TCA per year.
In 1979, prior to UCI's occupancy, a fire at the site caused a rupture in a 1,100-gallon aboveground storage tank containing 1,1,1-TCA. This rupture caused a release of 1,1,1-TCA at the site.
Groundwater at the site is contaminated with 1,1-DCE and 1,4-dioxane. 1, 1,1-TCA breaks down into 1,1-DCE over time, and 1,4-dioxane was used to stabilize 1,1,1-TCA. The presence of 1,1-DCE and 1,4-dioxane in groundwater indicates that 1,1,1-TCA has been released at the site.
A UCI expert witness, Jeffrey Dagdigian, Ph.D, opined that the 1979 fire was "the cause of release of VOCs located in the subsurface." Dagdigian observed that groundwater testing in 1993 did not detect any 1,1,1-TCA, i.e., it had broken down completely into 1,1-DCE and other constituents. Based on 1,1,1-TCA's half-life of 1.7 years, the release that caused groundwater contamination at the site could not have occurred after 1979. Otherwise, 1,1,1-TCA would have remained detectable in groundwater. Dagdigian estimated the mass of the historic 1,1,1-TCA release at 576 pounds or 73 gallons. He believed it was reasonable to conclude that the 1979 fire led to the release of all 73 gallons of 1,1,1-TCA, after accounting for 1,1,1-TCA that dissipated into the air or was captured by the site's sump and clarifier. Dagdigian also noted that MEK had not been detected in groundwater. If UCI's procedures resulted in routine releases of solvents, he would have expected MEK contamination in groundwater as well. For their part, District witnesses could not identify any other VOC releases at the site other than the 1979 fire.
In opposition to UCI's motion, the District submitted deposition testimony from a former employee, Edward Stoll, that "some" drippage of 1,1,1-TCA solvent occurred during the tape residue removal process. The drippage was rinsed "into the floor." A UCI expert witness agreed that there is some minor spillage during printed circuit board manufacturing. The boards from which tape was removed were rinsed with water. The water carried a small amount of solvent to UCI's clarifier. From the clarifier, waste was discharged into the public sewer. Another former employee, Jerry Paulk, testified that the only
UCI's contrary arguments are unpersuasive. We comprehensively examined the requirement of causation under the HSAA in our recent Alcoa opinion. ( Alcoa,
In discussing CERCLA generally, Boeing remarked, "CERCLA provides that a party that releases a hazardous substance is liable for another's response costs, but only if its release caused the other party to incur those response costs ...." ( Boeing, supra ,
Taking a different tack, UCI points to the requirement that a person must have "operated" the facility at issue in order to be liable. (
The question in this appeal is therefore whether UCI showed there was no triable issue of fact regarding whether a person "disposed of" hazardous substances during UCI's operation of the site. (
The District contends the trial court erred by summarily adjudicating its HSAA claim against Marotta on the ground that Marotta was not liable under the HSAA's nonretroactivity provision. That provision states, "This chapter shall not be construed as imposing any new liability associated with acts that occurred on or before January 1, 1982, if the acts were not in violation of existing state or federal laws at the time they occurred." ( Health & Saf. Code, § 25366, subd. (a).)
Marotta sold the site at issue in 1972. In its motion for summary adjudication, Marotta relied on discovery responses from the District stating that the District was "unaware of any Cleanup and Abatement Order or other charge or citation issued to Marotta concerning the site." Marotta argued this evidence showed that the District could not establish that Marotta's activities at the site violated then-existing state or federal laws. In opposition, the District submitted evidence that Marotta used TCE and PCE in its manufacturing processes, that TCE and PCE contamination has been detected in soil and groundwater at the site, and the contamination
The parties agree that Health and Safety Code section 25366, subdivision (a) establishes an affirmative defense to liability under the HSAA. Marotta would bear the burden of proof at trial on this defense. (See Ramirez v. Yosemite Water Co. (1999)
Marotta and the District dispute the elements of the HSAA's nonretroactivity defense. Marotta argues it satisfied its initial burden by showing that its ownership of the property (and therefore any conduct that would violate the HSAA) ceased prior to 1982. The District argues Marotta was also required to show that its conduct did not violate any then-existing state and federal laws. We agree with the District.
The HSAA's nonretroactivity provision states that a defendant will not be liable under the HSAA if (1) the alleged wrongful acts occurred before on or before January 1, 1982 and (2) the alleged wrongful acts did not violate any existing state or federal laws at the time they occurred. ( Health & Saf. Code, § 25366, subd. (a).) Unless both conditions are satisfied, the defense cannot overcome a prima facie showing of HSAA liability. Given the text of the statute, and the broadly remedial nature of the HSAA, it is appropriate to place the burden on the otherwise-liable defendant to prove compliance with then-existing environmental laws, e.g., through compliance records or the testimony of
We conclude Marotta did not meet its initial burden on summary judgment to establish that its alleged wrongful acts did not violate any existing state or federal laws. As noted, Marotta's evidence on this element consisted solely of District admissions in discovery that it had no evidence of any charges or citations for violations of environmental laws. But a defendant's motion for summary adjudication based on an affirmative defense may not be based on plaintiff's lack of evidence disproving the applicability of the defense. ( Consumer Cause, Inc. v. SmileCare, supra ,
A. Recoverable Costs
The District contends the trial court erred by summarily adjudicating its cause of action under section 8 of the OCWD Act in favor of defendants. That section empowers the District to "conduct any investigations of the quality of the surface and groundwaters within the district ... to determine whether those waters are contaminated or polluted" (OCWD Act, § 8, subd. (a)), to "perform any cleanup, abatement, or remedial work ... needed to prevent, abate, or contain any threatened or existing contamination of, or pollution to, the surface or groundwaters of the district" (id. , subd. (b)), and to seek recovery of its reasonable costs from "the person causing or threatening to cause that contamination or pollution" in a civil action (id. , subd. (c)).
The OCWD Act, section 8, subdivision (c) therefore creates a private right of action for cost recovery specific to the District: "If, pursuant to subdivision (b), the contamination or pollution is cleaned up or contained, the effects thereof abated, or in the case of threatened contamination or pollution, other necessary remedial action is taken, the person causing or threatening to cause that contamination or pollution shall be liable to the district to the extent of the reasonable costs actually incurred in cleaning up or containing the contamination or pollution, abating the effects of the contamination or pollution, or taking other remedial action. The amount of those costs, together with court costs and reasonable attorneys' fees, shall be recoverable in a civil action by, and paid to, the district." (Ibid. )
Defendants argue, here as in the trial court, that summary adjudication is proper because the District has not incurred any recoverable costs under the OCWD Act, section 8, subdivision (c). Defendants characterize the District's incurred costs as wholly "investigatory" and contend that investigatory costs are not encompassed within recoverable remediation costs. Defendants point to the express inclusion of the term "investigations" in section 8, subdivision (a), and the absence of that term in section 8, subdivisions (b) and (c), which authorize and provide for cost recovery of cleanup, abatement, and remedial work.
We addressed and rejected this unwarranted distinction in our recent Alcoa opinion: "On de novo review, we conclude the trial court incorrectly restricted the scope of recoverable costs under the OCWD Act. The issue is not whether the claimed costs
The "reasonable costs actually incurred in cleaning up or containing the contamination or pollution, abating the effects of the contamination or pollution, or taking other remedial action" are recoverable under the OCWD Act, without regard to whether they could also be characterized as investigatory. (OCWD Act, § 8, subd. (c).) "[A] remedial action involves much more than simply the physical cleanup or containment process itself. It involves investigation, planning, design, development, and documentation. Because these activities are part of remedial action, the costs of such activities are recoverable." ( Alcoa, supra ,
In their motion for summary adjudication, defendants showed that the District had not designed or constructed any remediation project in the South Basin; had not done any cleanup work or treated any groundwater contamination there; and planned to continue investigating the source and extent of groundwater contamination in the South Basin in order to develop a remediation plan. In opposition, the District did not directly contest these points. Instead, it offered, among other things, a declaration from its chief hydrogeologist explaining that the District's efforts were part of the remediation process and that those efforts were necessary if the District wanted to clean up contamination in the South Basin effectively. The hydrogeologist noted that some "investigatory" elements, such as groundwater monitoring wells installed by the District, would continue to be used as part of any cleanup and treatment effort. Other claimed costs included design and feasibility studies of various treatment options themselves.
On this record, defendants have not shown that all of the District's claimed remediation costs are not recoverable as a matter of law. As we have explained, the fact that the District's costs can be characterized as "investigatory" is not dispositive, which was the primary argument advanced in the trial court and on appeal. And, because the District's activities were undertaken in response to actual and threatened contamination and pollution and at least some could reasonably be understood as necessary for any future treatment
B. Causation: UCI
The OCWD Act allows the District to recover its reasonable costs from a person who caused or threatened to cause the contamination or pollution at issue. (OCWD Act, § 8, subd. (c).) Unlike the HSAA, the OCWD Act largely incorporates the causal nexus between a defendant's conduct and the resulting harm: "[T]he OCWD Act requires proof that a defendant itself caused or threatened to cause contamination or pollution for which the District has incurred remediation costs." ( Alcoa,
UCI moved for summary adjudication of the District's claim under the OCWD Act, among others, because the District could not establish causation. The trial court agreed and granted summary adjudication of the District's OCWD Act claim on this basis. On appeal, UCI argues this order provides an alternative basis on which to affirm the judgment in its favor on this claim. The District contends the court's order was erroneous. For reasons we will explain, we agree with UCI.
We have already summarized the evidence surrounding the UCI site in part II.C.7., ante . Based on our review of that evidence, we conclude UCI met its
IV. Negligence
A. Overview of Disputed Issues
Defendants challenged the District's negligence claim on the ground it was barred by the applicable statute of limitations. Below, we will first address the legal issues raised by defendant's challenge. For reasons we will explain, we conclude the theory of "continuous accrual" applies to the District's negligence claim and provides the framework for assessing defendants' arguments based on the statute of limitations. We next address defendants' factual showing to determine whether they are entitled to summary adjudication on this ground, including the additional arguments made in GE Aviation's separate respondent's brief. We conclude that, except for GE Aviation,
As with the District's claim under the OCWD Act, UCI moved separately for summary adjudication of the District's negligence claim on the ground the District could not show causation. We conclude, for the same reasons as under the OCWD Act, that UCI is entitled to summary adjudication of the District's negligence claim on this ground as well.
B. Statute of Limitations
1. The Defendants Jointly
The District contends the trial court erred by summarily adjudicating its negligence claim against all defendants based on the statute of limitations. In a series of motions, defendants offered evidence that the District knew or should have known about contamination at each of their sites more than three years before the District filed its complaint. Defendants argued that the District's actual or constructive knowledge of such contamination triggered the statute of limitations, which they claim expired before the District filed suit. In the trial court, the District primarily argued that its knowledge was insufficient to trigger the statute of limitations. On appeal, the District has abandoned this argument. Instead, the District relies on the theory of "continuous accrual" to defend its negligence claim. It contends summary adjudication was erroneous because its complaint alleged a series of negligent acts and, regardless of the District's first knowledge of contamination, the defendants
Defendants claim, as an initial matter, that the District has forfeited its appellate arguments by failing to raise them below. Defendants rely on NBCUniversal Media, LLC v. Superior Court (2014)
We do not find NBCUniversal persuasive under the circumstances here. Even assuming the District forfeited its argument by not making it below (a claim the District disputes), the District's argument presents a purely legal question (the sufficiency of defendants' initial evidentiary showing) that does not depend on factual development in the trial court. As in NBCUniversal , defendants claim the District's argument requires application of equitable principles. But defendants do not identify any such alleged equitable principles, they do not discuss any equitable principles in their discussion of the merits of the District's continuous accrual argument, and they do not identify any factual development in the trial court that they would have pursued had the District made its argument below. The defendants have not identified any prejudice from considering the District's continuous accrual argument, and they do not assert that the District's failure to make the argument in the trial court was for purposes of delay or the result of some other improper motive. Under these circumstances, even assuming the forfeiture rule otherwise applies, we will exercise our discretion and consider the District's argument on its merits. (See Francies v. Kapla, supra ,
In Aryeh , the Supreme Court explained the legal theory of continuous accrual: "Generally speaking, continuous accrual applies whenever there is a continuing or recurring obligation: 'When an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period.' [Citation.] Because each new breach of such an obligation provides all the elements of a claim-wrongdoing, harm, and causation [citation]-each may be treated as an independently actionable wrong with its own time limit for recovery." ( Aryeh, supra ,
In its operative complaint, the District alleged that "[d]efendants had a duty to use due care in the handling, control, disposal, release, remediation, and use of hazardous substances at their respective sites." Defendants breached
The District's allegations in support of its negligence causation of action identify a series of activities, spanning the initial handling and use of hazardous substances to their disposal, release, and remediation. Although couched in past tense, the complaint alleges a series of negligent acts.
Defendants point out that Aryeh involved a claim under the Unfair Competition Law ( Bus. & Prof. Code, § 17200 et seq. ). ( Aryeh, supra ,
Defendants bore the burden on summary judgment to show a "complete defense" to the District's negligence claim based on the statute of limitations. (
Defendants did not meet their initial burden of production. Defendants did not present evidence, for example, that a negligence claim based on improper remediation would be time-barred. Because a negligence claim based on such a theory remains viable notwithstanding defendants' evidence, their motions for summary adjudication of the District's negligence claims based on the statute of limitations should have been denied. ( Aguilar, supra ,
Defendants argue that the District has alleged "a single harm occurring solely in the past," i.e., "contamination of groundwater." But such contamination need not be a single, indivisible harm. Separate negligent acts could reasonably lead to more or different contamination, contamination with different effects, or contamination requiring different remediation efforts. For example, a defendant's negligent release of hazardous substances could cause some groundwater contamination. A defendant's later negligent remediation effort could cause additional groundwater contamination, in different areas, with different effects. Even though both negligent acts caused groundwater contamination, the contamination is not a single harm.
Defendants also argue that the District's allegations against certain specific defendants should override more general allegations against all defendants collectively. It is well-settled that "specific allegations control general pleadings," but this rule applies only where there is a factual inconsistency between the allegations. (
In a footnote, defendants claim in passing that they provided evidence showing that certain defendants (Emerson, Soco West, Brenntag, and UNISYS) "ceased any operations that could have [led] to any alleged releases long before" that statute of limitations period. Although the evidence cited by defendants shows that certain activities ceased outside the limitations period, defendants do not establish that the District's claim is based solely on those activities. Nor do defendants cite evidence that they did not engage in other activities alleged by the District in support of its negligence claim during the statute of limitations period. Emerson cites a 1999 site closure letter in which the RWQCB states, "On the condition that the information provided to us was accurate and representative of existing groundwater conditions at the site, no further investigation or remediation of groundwater is required." This letter does not address any later activities at the site. Emerson does not cite any evidence (e.g., a declaration from a responsible employee) that it has not undertaken any activities that could have caused groundwater contamination within the statute of limitations period. The discrete pieces of evidence cited by the other defendants at issue suffer from the same deficiencies. The 1991 letter cited by Soco West and Brenntag states that the site at issue "ceased processing hazardous waste" and "all containment areas have been decontaminated." But the letter does not address other negligent acts alleged by the District. Indeed, the letter mentions that hazardous waste remains at the site and soil and groundwater investigations are ongoing. UNISYS relies on deposition testimony showing that it sold the company that operated the site at issue in 1986. Again, this evidence does not address the various negligent acts alleged by the District other than direct operation of the site.
Given the breadth of the District's complaint, it was incumbent upon defendants in their motions for summary adjudication to address each allegation that could reasonably form the basis of the District's negligence cause of action, including defendants' potential negligent remediation activities. Having failed to do so, defendants did not meet their initial burden to show the District's negligence claim had no merit. On a different factual record, including discovery clarifying the scope of the District's allegations, summary adjudication might have been warranted. But on the current record the court's order granting summary adjudication must be reversed. Our discussion of this issue does not preclude defendants from raising the issue of statute of limitations again, of course, in an appropriate manner and with
2. GE Aviation
In its separate respondent's brief, GE Aviation offers a variation of the foregoing factual argument. It points to the following material fact contained in its motion, which it contends is undisputed: "There is no record evidence of any chlorinated solvent contamination, as defined by the solvents placed at issue by the District, to soil or groundwater at the 2040 Site as a result of any operations at the 2040 Site conducted from September 1, 1997 to the present." This fact sweeps more broadly than the evidence cited by Emerson, Soco West, Brenntag, and UNISYS cited above. The fact, if true, would cover any operations at the site in question throughout the statute of limitations period. And, because
In this appeal, the District addresses GE Aviation's evidentiary showing in a single sentence: "In addition, the District submitted evidence showing that ... GE Aviation continued releasing contaminants through 2011." This sentence is supported by a citation solely to the District's separate statement in opposition to GE Aviation's allegedly undisputed fact. As we have noted, such a citation is improper and insufficient. ( Cal. Rules of Court, rule 8.204(a)(1)(C) ; Jackson, supra ,
As the appellant, the District bears the burden of showing error in the judgment. ( Reyes v. Kosha, supra ,
C. Causation: UCI
UCI separately moved for summary adjudication of the District's negligence claim, among others, on the ground that the District could not establish causation. The trial court granted UCI's motion and expressly relied on this ground in summarily adjudicating the District's negligence claim in favor of UCI. The District contends the court's order was erroneous, whereas UCI relies on this ground as an alternative basis on which to affirm the judgment in its favor on the District's negligence claim. We agree with UCI.
We have already discussed the evidence surrounding the UCI site, including causation, in connection with the District's claims under the HSAA and the OCWD Act. (See parts II.C.7. and III.B., ante .) With respect to the OCWD Act, we concluded UCI met its burden on summary adjudication to show no triable issue of fact on the issue of whether UCI caused groundwater contamination and the District did not raised any triable issues in opposition. The legal standards of causation under the OCWD Act and the common law claim of negligence are identical in the context of the parties' contentions in this appeal. (See Viner v. Sweet (2003)
V. Trespass and Nuisance
A. The Causes of Action
The District alleged causes of action for common law trespass and nuisance against all defendants. The trial court granted defendants' motions for summary adjudication of these causes of action. As discussed above, the court primarily found that the District did not have sufficient property or other interests in the South Basin to support claims for trespass or nuisance.
Because both causes of action require some form of property interest (at least in part), we will consider them together in this section. We begin with an overview of each cause of action and will then discuss the District's potential property interests in groundwater in the South Basin.
"Trespass is an unlawful interference with possession of property." ( Staples v. Hoefke (1987)
A private plaintiff may bring a cause of action for public nuisance if the nuisance is "specially injurious" to the plaintiff. ( Civ. Code, § 3493.) Although a plaintiff's property interests may be relevant to the issue of special injury, property interests are not required to bring a cause of action for public nuisance. (See, e.g., In re Firearm Cases (2005)
B. The District's Property Interests
Because each cause of action involves some type of property interest, either as a necessary or potentially sufficient element, we will examine the nature of the District's alleged property interests relevant to this appeal. We
The District has alleged that it has property interests in groundwater in the South Basin. It acknowledges that it does not have property interests in the overlying land. It instead alleges property interests in or related to the groundwater itself. As we will discuss in greater detail below, water in its natural state cannot be owned by any private person. ( State of California v. Superior Court (2000)
"Courts typically classify water rights in an underground basin as overlying, appropriative, or prescriptive. [Citation.] An overlying right, 'analogous to that of the riparian owner in a surface stream, is the owner's right to take water from the ground underneath for use on his land within the basin or watershed; it is based on the ownership of the land and is appurtenant thereto.' " ( City of Barstow v. Mojave Water Agency (2000)
The District's alleged property interests in groundwater fall into three categories: (1) property interests based on a delegation of rights from the State of California, (2) property interests based on the District's regulatory powers, and (3) property interests based on its recharge activities in the Orange County groundwater basin. We will address each in turn below.
For reasons we will explain, we conclude that the District has not raised a triable issue of material fact that it has any relevant property interests based on any delegation of rights from the State of California or the District's regulatory powers. We agree with the District, however, that on the current record defendants have not established, for purposes of summary adjudication, that the District has no relevant property interests based on its recharge activities in the Orange County groundwater basin. Specifically, the current
1. Property Interests Based on State Delegation of Rights
The District contends the State of California has delegated its rights over groundwater in the South Basin to the District. It relies on a provision of the OCWD Act, which states in relevant part as follows: "The right-of-way is hereby given, dedicated and set apart to locate, construct and maintain any of the works of the district over and through any of the lands which are now, or may become the property of this state and also there is given, dedicated and set apart, for the uses
"All water within the State is the property of the people of the State, but the right to the use of water may be acquired by appropriation in the manner provided by law." ( Wat. Code, § 102.) On its face, this statute would appear to confirm the State's property interest in groundwater in the South Basin. But it has not been read so broadly. As the Supreme Court has explained, "The state's interest in the public groundwater and surface waters is to make water policy that preserves and regulates it. The state does not have the right to possess and use the water to the exclusion of others and has only such riparian
In State of California , our colleagues in Division Two of this court undertook a comprehensive examination of the State's interests in groundwater. They concluded that the State "does not 'own' the water of the state in its natural conditions .... [T]he state does not have the right to 'possess and use [the water] to the exclusion of others' and has only such riparian or appropriative rights as it may otherwise obtain by law." ( State of California, supra ,
The conclusions of State of California were adopted by the Supreme Court in City of Barstow , with citation, in the passage quoted above.
A recent opinion relied on State of California to reverse a defendant's conviction for petty theft of water from a flowing stream, reasoning that neither the State nor any private person had a possessory interest in such water. ( People v. Davis (2016)
While City of Barstow , State of California , and Davis do not consider causes of action for trespass or private nuisance, their conclusions regarding the State's interests in groundwater establish that those causes of action are untenable here. Like larceny, trespass requires the invasion of a superior possessory interest in property. (Compare Davis, supra ,
The District points out that an earlier opinion, Selma Pressure Treating Co. v. Osmose Wood Preserving Co. (1990)
The reasoning in Selma has been undermined by the more recent opinions discussed above, most importantly the Supreme Court's statement-contrary to Selma -that the State's interest in groundwater is "a nonproprietary, regulatory one." ( City of Barstow, supra ,
For the foregoing reasons, we conclude that the State's delegation of rights in section 39 of the OCWD Act does not confer any property interests in groundwater in the South Basin to the District. The District therefore cannot support a claim for trespass or private nuisance on this basis.
2. Property Interests Based on the District's Regulatory Powers
The District contends its regulatory powers over the groundwater in the South Basin confer a property interest in the groundwater sufficient to support its trespass and nuisance claims. It points to its power to require registration of water producers (OCWD Act, §§ 24, 35), its power to require installation of a water meter to track the amount of water extracted (id. , § 35), its power to impose fees based on that amount (id. , §§ 23, 27, 29), its power to enjoin unauthorized water producers from extracting water (id. , § 32), and its power to regulate the amount of water extracted through fees to encourage responsible water extraction (id. , § 31.5). No person other than the District may store water in the Orange County groundwater basin absent agreement by the District, and the District may regulate this storage even when authorized. (Id. , § 2.1, subd. (a).) In the District's view, these powers taken together confer on
We disagree that the District's regulatory powers over groundwater confer a property interest. As we have discussed above with respect to the State, the power to regulate and supervise is not the same as ownership or other interest in property. (See City of Barstow, supra ,
3. Property Interests Based on the District's Recharge Activities
The District contends that its efforts to recharge the groundwater in the Orange County groundwater basin confer property interests in the groundwater itself, in the form of water rights. As explained above, the District acquires water from various sources and discharges it (or "spreads" it) at District facilities in Orange County. The process replenishes groundwater in the Orange County groundwater basin. It causes groundwater levels to rise throughout the basin, including in the South Basin, because the entire basin is hydrologically connected. The recharged groundwater is effectively stored in the basin until water producers extract it. The District itself does not use or extract groundwater from the basin.
In this appeal, the District claims it enjoys usufructuary rights to groundwater in the South Basin, but it does not specify with any particularity the type of usufructuary rights (overlying, appropriative, or prescriptive) at issue.
It is undisputed that the District does not itself extract or "actual [ly] divert" groundwater from the Orange County groundwater basin. By definition, therefore, the District does not appropriate groundwater in the South Basin. Absent evidence of appropriation, the District generally cannot claim appropriative rights. (See City of Pasadena v. City of Alhambra (1949)
The District argues that it enjoys an exception to this general rule based on its importation or recharge activities, which deposit water from various sources into the Orange County groundwater basin. The District's argument is based on an appropriator's right to reclaim or re-appropriate water it has imported into a river or groundwater basin (See City of Los Angeles v. City of San Fernando (1975)
This rule is intended to encourage the use of natural watercourses and basins for efficient transportation and storage of water. ( City of Los Angeles I, supra , 23 Cal.2d at pp. 76-77,
Crucially, the rule applies only where the water importer intends to reappropriate the imported water: "Such water is not abandoned where there is an intent to recapture it ." ( Barton Land & Water Co. v. Crafton Water Co. (1915)
This issue, the District's intent to reappropriate, was not a focus of the summary adjudication proceedings in the trial court. We requested supplemental briefing from the parties regarding whether we could conclude, on the current record, that the undisputed facts showed the District did not have sufficient intent to recapture to invoke the rule discussed above and therefore did not enjoy any appropriative water rights in the South Basin. (See Blackwell v. Vasilas (2016)
Here, as discussed above, the District does not extract (or reappropriate) any water from the Orange County groundwater basin. Nor does it appear based on the current record that it intends to extract any such water. Instead, replenishment of the groundwater basin is, in and of itself, the purpose for which the District engages in groundwater recharge. Other water producers, not the District, extract and appropriate basin water for their own purposes. The District points out that water producers pay fees to the District based on the amount of water they extract from the basin, but based on the current record these fees appear to be regulatory, not transactional, in nature. It does not appear that the producers are purchasing water or water rights from the District.
Because defendants did not raise the issue of intent in their motions, we conclude the District was not required, nor did it have an adequate opportunity, to develop the factual record and raise triable issues of fact relating to the issue of intent to reappropriate groundwater following its recharge activities. Due process and fundamental fairness require us to refrain from deciding this issue against the District in the absence of such an opportunity. ( Herberg v. California Institute of the Arts (2002)
We therefore conclude, in this appeal and on the current record only, that defendants have not shown the District does not enjoy appropriative water rights in the South Basin based on its recharge activities. We will next consider whether these appropriative rights are a sufficient basis on which to allege claims for trespass or nuisance under the circumstances here.
C. Appropriative Water Rights and the District's Claims
1. Trespass
Trespass, as we have discussed, protects against the unlawful interference with possession of property. ( Wilson, supra ,
Contamination of subsurface soil has been held to interfere with a landowner's possessory interest in its land. (See, e.g., Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007)
Here, property interests in land are not at issue. As noted, the District
The parties have cited only one case in which interference with a water right was held to be a common law trespass. (See Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp. (1927)
Although the rights of riparian owners have subsequently been limited by an amendment to our State Constitution, Fall River 's characterization of unauthorized water users as trespassers remains valid. ( Orange Cnty. Water Dist. v. City of Riverside (1959)
A nuisance is "[a]nything 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 ...." ( Civ. Code, § 3479.) "The basic concept underlying the law of nuisances is articulated in the ancient maxim sic utere tuo ut alienum non laedas , that is, so use your own as not to injure another's property." ( Lussier v. San Lor en z o Valley Water Dist. (1988)
As noted, a cause of action for nuisance under a theory of private nuisance requires a plaintiff to show inference with the use or enjoyment of a property interest. Unlike for trespass, however, interference with a possessory property interest is not required: " '[A]ny interest sufficient to be dignified as a property right' will support an action based on a private nuisance ...." ( Venuto v. Owens-Corning Fiberglas Corp. (1971)
Defendants argue the District did not have any relevant property interests in the South Basin because it did not use any groundwater there. We disagree. As we have explained above, the District may have appropriative water rights based on its recharge activities. Appropriative water rights are property rights, and they are therefore sufficient to support a claim of private nuisance. Moreover, although the undisputed facts show that the District does not use its appropriative water rights to extract or produce water, we conclude defendants have not shown there are no triable issues of material fact regarding other uses of those rights or the District's enjoyment of them. Defendants are not entitled to summary adjudication of the District's nuisance claim based on a theory of private nuisance.
A property interest sufficient to support a cause of action for private nuisance is generally sufficient to support a cause of action for public
The trial court identified several additional grounds supporting its order grounding summary adjudication of this cause of action, including the District's inability to show a substantial and unreasonable harm sufficient to support a nuisance
For the foregoing reasons, the trial court erred by granting defendants' motions for summary adjudication of the District's cause of action for nuisance. With the exception of UCI, we will reverse the judgments as to the District's nuisance claim.
The trial court rejected the District's declaratory relief cause of action, either through summary adjudication, judgment on the pleadings, or following trial, based on the District's inability to maintain any other, coercive causes of action. The District contends that the judgment as to its cause of action for declaratory relief should be reversed if the judgments as to any of its other causes of action is reversed. Defendants do not address this contention, except to argue that the judgments as to the other causes of action should be affirmed.
We agree with the District. The District's cause of action for declaratory relief incorporates the allegations of its other causes of action and requests a declaration of the parties' respective financial obligations stemming from the same facts. Because the District may maintain at least one other cause of action against each defendant, it may also maintain its declaratory relief cause of action. (See Southern Counties Gas Co. v. Ventura Pipeline Constr. Co. (1971)
DISPOSITION
The judgments involving Beatrice, Bell, BorgWarner, DRSS, Emerson, Gallade, GE, ICI, Marotta, Ricoh, SABIC, Sanmina, and UNISYS are affirmed in part as to the District's cause of action for trespass and reversed in part as to the District's causes of action under the OCWD Act, the HSAA, and for negligence, nuisance, and declaratory relief.
The judgment involving UCI is affirmed in part as to the District's causes of action under the OCWD Act and for negligence, trespass, and nuisance and reversed in part as to the District's causes of action under the HSAA and for declaratory relief.
The joint judgment involving Accurate Circuit, Brenntag, Dyer, Embee, ITT, Soco West, and Steelcase is affirmed in part as to the District's cause of action for trespass and reversed in part as to the District's causes of action under the OCWD Act, the HSAA, and for negligence, nuisance and declaratory relief.
WE CONCUR:
BENKE, Acting P.J.
HUFFMAN, J.
Notes
Another party, RadioShack Corporation (RadioShack), was sued by the District and was part of this appeal until its appellate proceedings were stayed pending resolution of RadioShack's bankruptcy. (Orange County Water Dist. v. RadioShack Corp. (G048970, app. pending).)
In several petitions for rehearing, defendants proffer various arguments, not previously raised in this appeal, why they believe they should ultimately prevail on the District's causes of action. We express no opinion on those arguments. In reversing the trial court's orders granting summary adjudication as to certain causes of action, we have concluded only that the existing record does not support summary adjudication of those causes of action. We express no opinion whether motions for summary adjudication based on different evidence, directed toward different elements of the claims, or asserting different affirmative defenses would be successful. The new arguments raised in defendants' petitions for rehearing must be directed to the trial court in the first instance. We will not consider them for the first time in this appeal after our opinion has been filed. (See Conservatorship of Susan T. (1994)
A water producer is a person who extracts groundwater, thereby "producing" water for domestic consumption or other use.
Later in the litigation, the District filed a Second Amended Complaint (SAC). The SAC added allegations regarding the corporate histories of Brenntag and BorgWarner but was otherwise substantively identical to the FAC.
The trial court denied a site-specific summary adjudication motion filed by Steelcase. In this appeal, Steelcase contends the court's denial was error. (See Code Civ. Proc., § 906.) We will address Steelcase's contention below.
Citing Jocer, supra,
The District points out that the reviewing court in Pipitone concluded that the appellant did not waive her evidentiary challenges by failing to raise them in her opening brief. (Pipitone, supra,
The quoted language became effective on January 1, 2016. (Stats. 2015, ch. 458, § 2.) Prior to that date, among other changes, the beginning of the first sentence read, "Any person who has incurred removal or remedial action costs in accordance with this chapter ...." (Former Health & Saf. Code, § 25363, subd. (e).) These changes do not appear to affect the substance of this appeal, so we will refer to the current language in our discussion.
The requirement of consistency with the national contingency plan is not at issue in this appeal and will therefore be omitted from our discussion of this element. (Cf. Alcoa,
The applicable MCL's for the relevant VOC's in drinking water are 5 ppb for TCE and PCE, 6 ppb for 1,1-dichloroethylene (1,1-DCE), and 200 ppb for 1,1,1-trichloroethane (TCA). (See Cal. Code Regs., tit. 22, § 64444.)
We note that GE Aviation's statement of facts in its separate respondent's brief is inadequate. To support its factual assertions, GE Aviation provides citations only to its own memorandum of points and authorities in support of its motion for summary judgment in the trial court. The Rules of Court require citation to the underlying evidence itself. (See Cal. Rules of Court, rule 8.204(a)(1)(C) ; Jackson v. County of Los Angeles (1997)
At oral argument, GE Aviation argued it was entitled to summary adjudication because it had established a complete defense to the District's HSAA claim based on third party liability. (See Health & Saf. Code, § 25325.5, subd. (b);
An appellant is required to raise and support claims of error in its opening brief or they will be forfeited. (Reyes v. Kosha (1998)
Given our conclusion, we need not address the parties' dispute over the relevance and significance of a wastewater discharge permit allowing Sanmina to dispose of VOC solvents into the Orange County sewer system. We also need not address the District's argument that the trial court erred by excluding wastewater sampling data showing the presence of VOC's in the discharged water.
As we have noted, Steelcase later prevailed on this claim following a bench trial in which the court found the District could not bring suit under the HSAA. Because we have concluded the court's interpretation of the statute in this manner was erroneous (see part II.B., ante ), we will consider Steelcase's causation argument.
UCI claims the District may not advance this interpretation of the HSAA's causation requirement in this appeal because it did not make this argument in the trial court. But this appeal, and the District's arguments, raise pure questions of law and this matter has yet to be tried. To the extent the District forfeited its arguments by not advancing them in the trial court, we exercise our discretion to consider them. (See Francies v. Kapla (2005)
Even if UCI had met its initial burden, the District's evidence showing that 1,1,1-TCA was retained in the clarifier and discharged into the public sewer (along with expert testimony stating that minor spillage occurs during printed circuit board manufacturing) would be sufficient to raise a triable issue of material fact regarding disposal under the HSAA. This evidence does not implicate the Stoll and Paulk deposition transcripts, which UCI contends are inadmissible hearsay. We therefore need not address UCI's contention regarding admissibility. (Compare Williams v. Saga Enterprises, Inc. (1990)
The District argues it submitted evidence that the degreasing equipment used by Marotta was a typical source of contamination. In its brief, the District cites only its separate statement of disputed material facts, rather than the underlying evidence itself. This is improper. (Cal. Rules of Court, rule 8.204(a)(1)(C) ; Jackson, supra,
At oral argument, defendants appeared to offer an additional reason why summary adjudication of the District's claim under the OCWD Act was proper. They argued that the District had not shown that "contamination or pollution [was] cleaned up or contained, the effects thereof abated, or in the case of threatened contamination or pollution, other necessary remedial action [was] taken," as required for cost recovery under the OCWD Act. (OCWD Act, § 8, subd. (c).) They attempted to distinguish our discussion of this element in Alcoa by pointing out that, unlike in Alcoa, the District had not offered any evidence that the hazardous substances in the South Basin had naturally attenuated, or "abated," such that this element was not satisfied. (See Alcoa,
Given our conclusion, we again need not decide whether the deposition transcripts of former employees Stoll and Paulk were admissible. (See fn. 16, ante.)
The parties make much of the tense of the complaint's allegations. The District emphasizes allegations made in the present or present progressive tense ("[d]efendants ... [are] causing and threatening to cause contamination and pollution"), and defendants emphasize past tense allegations. We need not definitely resolve the scope of the District's allegations in the appeal. Even focusing exclusively on the past tense allegations, they allege a series of negligent acts (albeit in the past). We disagree with defendants' contention that these past tense allegations describe a single negligent act for each defendant.
We further disagree with defendants that the District's negligence claim is based solely on the idea "the persistence of contaminants in groundwater indefinitely tolls the statute of limitations." The District's claim is instead based on the idea that defendants are responsible for negligent acts within the statute of limitations. Defendants' reliance on CAMSI IV v. Hunter Technology Corp. (1991)
Although the District addresses the facts surrounding the GE Aviation site in the context of its HSAA claim, that claim was the subject of a different summary adjudication motion and involves different legal standards. It does not apply to the District's negligence claim, and the District does not attempt to incorporate it here.
In a petition for rehearing, GE Aviation argues that this conclusion requires affirmance of the court's orders granting summary adjudication of the District's claims under the OCWD Act and for nuisance because those claims also require a showing that GE Aviation contaminated the soil or groundwater at the site. GE Aviation did not make this argument, or any site-specific argument regarding the District's claims under the OCWD Act and for nuisance, in its briefing in this appeal. We therefore will not consider it for the first time on rehearing. (See Conservatorship of Susan T., supra,
The District contends that "trespass on the case" is a viable tort in California that does not require a property interest. Although the District did not raise this argument in the trial court, it contends the judgment on its trespass claim should be reversed because it can prevail under the standards applicable to a cause of action for trespass on the case. Even assuming the District's complaint can be read to plead a cause of action for trespass on the case, and even exercising our discretion to consider the District's new argument for the first time on appeal, we disagree. To the extent trespass on the case remains a viable tort in California, it does not apply to the circumstances here. Historically, trespass on the case was a common law form of action that encompassed a wide variety of causes of action that we now consider separate. Chief among them was negligence. (See Rest.3d Torts, § 6, com. c, p. 61.) For example, an early Supreme Court opinion on negligence relies on a treatise discussing trespass on the case for the applicable standards. (Gerke v. California Steam Navigation Co. (1858)
Although the District is a public agency, the parties agree that a public agency may bring a nuisance cause of action on its own behalf to the same extent as a private plaintiff, and under theories of both private and public nuisance, where the public agency's own property rights are affected by the nuisance. The statutory basis for such an action is found in the first sentence of Code of Civil Procedure section 731 : "An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code, and by the judgment in that action the nuisance may be enjoined or abated as well as damages recovered therefor." (See County of Santa Clara v. Atlantic Richfield Co. (2006)
Riparian rights are water rights enjoyed by landowners whose property abuts surface water. (People v. Shirokow (1980)
Water Code section 102 therefore differs from the statute confirming the State's interest in land underlying the State's navigable waters and tidal areas. The latter statute provides as follows: "The State is the owner of all land below tide water, and below ordinary high-water mark, bordering upon tide water within the State; of all land below the water of a navigable lake or stream; of all property lawfully appropriated by it to its own use; of all property dedicated to the State; and of all property of which there is no other owner." (Civ. Code, § 670, italics added.) "The State is considered to hold 'title as trustee to such lands and waterways ....' (National Audubon Society v. Superior Court (1983)
We similarly concur with State of California 's interpretation of the Supreme Court's opinion in AIU Ins. Co. v. Superior Court (1990)
The District claims its property interests in groundwater were recognized in Orange County Water Dist. v. The Arnold Engineering Co., supra,
In a footnote, Niles states it was "undisputed that the district owns the ground water in the Niles Basin as trustee for all the overlying surface owners located within its boundaries." (Niles, supra,
The District also references the OCWD Act, sections 2 and 8. Section 2, subdivision (9), gives the District the power to bring actions "to prevent interference with water or water rights used or useful to lands within the district, or diminution of the quantity or pollution or contamination of the water supply of the district, ... or to prevent any interference with the water or water rights used or useful to the district which may engager or damage the inhabitants, lands, or use of water in the district ...." This section confers the power to bring litigation; it does not confer any property interests in groundwater. The District has not asserted a stand-alone claim based on section 2 of the OCWD Act, so we need not decide whether it confers any right of action on the District separate from generally applicable laws. The District has asserted a claim under section 8, which we discuss separately. (See part III., ante.) But Section 8 also does not confer any property interests in groundwater on the District.
In its opening brief, the District relied on evidence concerning its recharge activities that the trial court excluded. We have already explained that the District forfeited any claims of error as to such exclusion by not raising them until its reply brief. (See fn. 6, ante.) The essential facts regarding the District's recharge activities were admitted, however, so the District's broader contention remains viable on appeal.
Because the District does not appropriate water from the South Basin, the parties' dispute over whether storage of groundwater is a beneficial use is irrelevant. The District's appropriative rights to the water sources from which it obtains water for recharge-which it then uses, beneficially or not, for storage-are not at issue.
The District's reliance on Niles, supra,
The District also alleges that its recharge activities prevent saltwater intrusion from the Pacific Ocean into groundwater. We disagree that this additional benefit has any significance for the District's trespass and nuisance claims. In particular, we disagree that this benefit can be analogized to a physical fence around a plot of land that would be evidence of possession. (Cf. Williams, supra,
We need not consider whether a trespass claim would be viable if the District were extracting or capturing water in the South Basin that was contaminated.
UCI obtained summary adjudication of the District's nuisance claim on the alternate ground of causation. The District does not offer any additional claims of error with respect to this cause of action that we have not already discussed with respect to its causes of action against UCI under the OCWD Act and for negligence. (See parts III.B. and IV.B., ante.) The District's contentions remain unpersuasive, so we will affirm the judgment against the District on its nuisance cause of action as to UCI on the alternate ground of causation. Ricoh's contention that the judgment as to it should be affirmed on the alternate ground of causation is unpersuasive as well. The court did not summarily adjudicate the District's nuisance cause of action against Ricoh on site-specific causation grounds, and Ricoh has offered no argument why it should have. (See part II.B.4., ante.) Steelcase's contention that the trial court should have granted summary adjudication of its nuisance claim is unpersuasive for the same reasons we have already discussed. (See part II.B.6., ante.)