Filed 10/22/26 Joseph F. Farivar Investment Group v. HPC Vineburn CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JOSEPH F. FARIVAR INVESTMENT B343432
GROUP, INC., et al.,
(Los Angeles County
Plaintiff and Respondents, Super. Ct. No. 23STCV00319)
v.
HPC VINEBURN, LLC, et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Rolf M. Treu, Judge. Reversed.
Goodkin Law Group, Daniel L. Goodkin and Michael A.
Shakouri for Defendant and Appellant Meruelo Maddux
Properties-1919 Vineburn Street, LLC.
Edgcomb Law Group, Tiffany Hedgpeth, John Edgcomb,
Gabriel J. Padilla and Ferdeza Zekiri for Defendant and
Appellant HPC Vineburn, LLC.
Elkins Kalt Weintraub Reuben Gartside, Kenneth A.
Ehrlich and Sean A. McCormick for Plaintiffs and Respondents.
This case concerns the passive1 migration of contaminated
groundwater from one property to an adjacent downgradient
property. Plaintiffs are the owner and renter of the
downgradient property. The defendants are the current and
prior owners of the upgradient property. Prior to defendants’
ownership, a manufacturing company contaminated the
upgradient property, and the contamination migrated onto the
downgradient property.
The trial court granted summary adjudication in favor of
plaintiffs on their causes of action for declaratory relief,
negligence, continuing nuisance, and continuing trespass. After
plaintiffs dismissed their remaining causes of action, the trial
court entered judgment in favor of plaintiffs in the amount of
$12,245,108.42. The judgment included a declaration that
defendants were responsible for the 1,4-dioxane contamination in
the groundwater on plaintiffs’ property.
We conclude plaintiffs failed to show breach of a common
law or statutory duty of care as a matter of law to support their
negligence claim. We also conclude plaintiffs did not establish, as
a matter of law, all elements of their continuing nuisance and
continuing trespass claims because they used an improper
damages measure for these continuing torts. Additionally, we
conclude that the trial court erroneously partially summarily
adjudicated the declaratory relief cause of action. The trial court
thus erred in summarily adjudicating plaintiffs’ claims and
ultimately entering judgment in plaintiffs’ favor. Accordingly, we
reverse.
1 Plaintiffs do not allege the defendants themselves caused
toxic chemicals to enter the groundwater on the upgradient
property.
2
BACKGROUND
The record is prolix. We summarize below the overall
procedural and factual background, and in our Discussion, post,
we provide additional factual background pertaining to certain
appellate challenges,
1. The parties
Plaintiff Joseph F. Farivar Investment Group, Inc.
(Farivar) owns property located at 4335 Valley Boulevard
(Farivar Property). Plaintiff Bordan Shoe Company, Inc.
(Bordan) leases the Farivar Property. The Los Angeles Regional
Water Quality Control Board (LARWQCB) issued a cleanup and
abatement order for the Former Square D Site, which is located
on the Farivar Property.2 The Square D site began remediation
efforts in 2000, which efforts continued through 2022.
The Farivar Property is located adjacent to property at
1919 Vineburn Avenue (Vineburn Property) and is
“downgradient” from the 1919 Vineburn Property. Defendant
HPC Vineburn LLC (Vineburn) currently owns the
1919 Vineburn Property, which defendant Meruelo Maddux
Properties-1919 Vineburn Street, LLC (Maddux) previously
owned. Prior to Maddux’s ownership, the Nardon Manufacturing
Company owned the Vineburn Property.
2Plaintiffs’ expert, Steven Luis, references this cleanup
and abatement order in his report. The order is not in our record.
3
2. Undisputed facts3
Prior to 1989, the Nardon Manufacturing Company, a
metal fabricator, operated the Nardon Facility at the Vineburn
Property. The Nardon Manufacturing Company discharged
waste onto the property, including 1,4-dioxane, a common
additive to 1,1,1-trichloroethene (1,1,1-TCA). 1,4-dioxane, 1,1-
dichloroethene (1,1-DCE), and tetrachloroethylene (PCE) are
present in the soil and groundwater at the Vineburn Property.
In 2018, the LARWQCB issued a directive to Vineburn to
“complete site assessment activities to further assess possible
source areas that might be present and possibly contributing to
the groundwater issues and contamination of the Farivar
Property.” To comply with this directive, Vineburn retained
Hazard Management Consulting, Inc. (HMC) to conduct a
subsurface investigation and prepare a report. HMC prepared its
report dated May 7, 2020.
HMC’s report, which is central to the issues in this case,
showed that soil and groundwater contamination at the Vineburn
Property had migrated to the subsurface of the Farivar Property.
Vineburn and plaintiffs agree, “The 2020 Subsurface Report
revealed ‘elevated concentrations of 1,4-dioxane, 1,1-DCE, PCE,
and to a lesser extent, TCE . . . in soil samples collected’ from a
boring adjacent to and downgradient from a former wastewater
clarifier at the northeast end of the Nardon Facility.” “The 2020
3 Plaintiffs and Vineburn agreed on many facts in their
separate statements. Maddux did not file a separate statement
or opposing memorandum of points and authorities. The
“undisputed facts” referenced in this Background are facts agreed
to by Vineburn and plaintiffs in their respective separate
statements.
4
Subsurface Report revealed that ‘laboratory results of
groundwater samples indicated elevated concentrations of 1,4-
dioxane, 1,1-DCA, and PCE, and to a lesser extent, 1,1-DCA, 1,2-
DCA, and TCE’ at the Nardon Facility.” “There is a ‘hot-spot’ of
contamination ‘in the vicinity’ of a former wastewater clarifier at
the northeast end of the Nardon Facility.” “A ‘hot-spot’ is ‘an
area with much higher concentrations when compared to
surrounding sample points.’ ” According to the Subsurface
Report, the Vineburn Property “ ‘has contributed to the 1,4-
dioxane groundwater issues at [the Farivar Property], and to a
lesser extent the residual 1,1-DCE and PCE at that property.’ ”
After receiving HMC’s report, Vineburn made a “ ‘proposal
to start cleaning-up the impacted ground water’ identified by the
2020 Subsurface Report.” Vineburn is “ ‘ready to start the clean-
up with all the money set aside to do the clean-up’ of the
contamination revealed by the 2020 Subsurface Report.”
On September 27, 2023, after plaintiffs filed the case before
us, the LARWQCB sent Vineburn an order for additional
investigation of the contamination. The order required Vineburn
to submit by December 25, 2023 a “work plan . . . to complete the
vertical and lateral delineation of soil, soil vapor, and
groundwater impacts.” The LARWQCB noted that HMC’s 2020
report suggested “a release point in the vicinity of the Former
Clarifier” at the Nardon Facility, and that the Nardon Facility
“has contributed to the 1,4-dioxane groundwater plume at the
downgradient Former Square D Facility [located on the Farivar
Property], and to a lesser extent the residual 1,1-DCE and PCE
at that same site.”
5
3. First amended complaint
Plaintiffs alleged causes of action for continuing nuisance,
continuing trespass, negligence (including negligence per se), and
declaratory relief, among other causes of action dismissed after
the trial court granted summary adjudication in their favor.4 As
to each cause of action, plaintiffs allege the migration of toxic
chemicals from Vineburn’s Property to Farivar’s Property.
Plaintiffs alleged Maddux is a dissolved Delaware limited
liability company that owned the Nardon Facility from
approximately 2005 through 2013. Plaintiffs further alleged
Vineburn has owned and occupied the Nardon Facility since
2013. Plaintiffs alleged that between 1951 and 1993, the owners
and occupants of the Nardon Facility manufactured metal
components and fabricated products for the Los Angeles Metro
and Standard Light Rail Vehicles. The Nardon Facility’s
operations included using the solvent, 1,1,1-trichlorethane, which
is commonly used in connection with 1,4-dioxane. Plaintiffs
averred the Nardon facility generated hazardous substances that
were released “into several onsite clarifiers, and subsequently
disposed of through the municipal sewer system.”
Contamination from 1,4-dioxane migrated from the Nardon
Facility to groundwater beneath the Farivar Property. As to the
4 Plaintiffs also alleged permanent nuisance, permanent
trespass, contribution, and equitable indemnity. They did not
seek summary adjudication of these causes of action and later
dismissed them.
Plaintiffs also sued the Nardon Liquidating Corp.,
Benedetta Nardon, Marilyn Knoop, and Patricia Minni. These
defendants are not included in the judgment and are not parties
to the appeal.
6
continuing nuisance claim, plaintiffs alleged pursuant to Civil
Code section 3483 that defendants, as successive owners, are
liable for contamination created by a former owner. They
incorporated this allegation in their continuing trespass,
negligence, negligence per se, and declaratory relief causes of
action.
In their declaratory relief cause of action, as described in
more detail in the Discussion, plaintiffs alleged defendants are
responsible for the contamination and the costs of remediation,
liabilities to third parties, including governmental agencies, and
monetary damages. Plaintiffs alleged defendants denied these
obligations and an actual controversy exists.
4. Motion for summary adjudication
Plaintiffs moved for summary adjudication. They relied
heavily on HMC’s (Vineburn’s consultant) 2020 report, which
concluded the Vineburn Property “contributed” to the
contamination at the Farivar Property.
With respect to damages, plaintiffs relied on declarations of
their experts, Steven Luis and Bradley Lofgren. Luis, a civil
engineer with more than 20 years’ experience in environmental
consulting and engineering services, opined that to clean up the
1,4-dioxane on the Farivar Property without access to the
Vineburn Property would cost $11,779,000 (present value) for
over a 20-year cleanup period. Lofgren, a certified appraiser,
opined it would cost $192,887 (present value) in loss of use of the
property during the 20-year remediation.
In his declaration, Luis stated he was “asked to review
available environmental information and data related to the
Former Square D Site [located on the Farivar Property] and
Former Nardon Site [located on the Vineyard Property] and
7
develop a plan and cost estimate to remediate the contamination
that has migrated onto the Former Square D Site from the
Former Nardon Site.” “The Former Square D Site was used
previously to manufacture electrical components and furniture
(LARWQCB, 12/5/2001).” Luis recounted a study by Schneider
Electric, which “attributed the presence of PCE, TCE, 1,1-DCE,
1,1-DCA, and 1,4-dioxane in groundwater at the Former Square
D Site to historical releases at the Former Nardon Site due to the
location of the Former Nardon Site upgradient from the Former
Square D Site (i.e., the Former Nardon Site is located northeast
and upgradient of the Former Square D Site . . . .).” Luis also
described the HMC report’s conclusion that the former Nardon
Site contributed “ ‘to the 1,4-dioxane groundwater issues’ ” at the
Former Square D Site.
Luis referred to a 2023 order from the LARWQCB (the
order issued after plaintiffs filed suit) indicating the Former
Nardon site contributed to 1,4-dioxane groundwater plume at the
former Square D Facility (which is located on the current Farivar
Property). Luis acknowledged the LARWQCB had indicated
additional assessment was needed to “ ‘complete the vertical and
lateral delineation of soil, soil vapor, and groundwater impacts.’ ”
According to Luis, “It is reasonable to anticipate
LARWQCB will require Vineburn to continue investigating and
to remediate groundwater at the Former Nardon Site, the Former
Square D Site, and in downgradient locations to achieve the
California MCLs [Maximum Contaminant Levels] and SWRCB
NL [State Water Resources Control Board Notifications Level].”
“Based on [his] review of the available data and
information,” Luis agreed with the LARQWQCB that “1,4-
dioxane, 1,1-DCE, PCE, and TCE were released at the . . .
8
Former Nardon site and have migrated via groundwater onto the
Former Square D Site.” To remediate “within the boundaries of
the Former Square D Site,” the cost would be $11,779,000. Luis
explained: “Under the oversight of the LARWQCB, the
California MCLs are being used as cleanup goals for the Former
Square D Site [citation]. Based on my experience at other sites in
California, it is common for California regulatory agencies such
as the LARWQCB to apply the California MCLs as cleanup goals
for sites in California. Therefore, for contaminants with
established California MCLs it is likely the LARWQCB will apply
the California MCLs as cleanup goals at the Former Square D
Site for contaminates originating at the Former Nardon Site.”
Luis rejected remediation approaches he believed “would not be
acceptable” to the LARWQCB.
5. Vineburn opposed summary adjudication
In its opposition, Vineburn argued plaintiffs failed to
consider certain facts. Specifically, plaintiffs did not acknowledge
the former use of (1,1,1-trichloroethane) at the Farivar Property
and its “likely” contribution to the presence of 1,2-dioxane “in soil
and groundwater beneath Plaintiffs’ property.” Additionally,
according to Vineburn, plaintiffs failed to consider LARWQCB’s
ongoing investigation, and that LARWQCB had not yet ordered a
remediation plan.
Vineburn argued there were disputed issues of material
fact precluding summary adjudication. Specifically, plaintiffs did
not show causation as a matter of law because plaintiffs’ property
contributed to the claimed damages. Vineburn argued it did not
breach any duty owed to plaintiffs because it complied with all
directives of the LARWQCB and did not itself contaminate the
groundwater. Vineburn also emphasized its expert had
9
concluded a five-year cleanup would cost $5 million, less than
half the estimate posited by plaintiffs’ expert.
Vineburn contended there was no continuing nuisance or
continuing trespass because any alleged nuisance or trespass was
permanent, not continuing. In addition, declaratory relief was
not appropriate “because the [LA]RWQCB has not selected a
remedy.”
Vineburn supported its opposition with Adam Love’s
declaration. Love has a Ph.D. in environmental engineering with
expertise in identifying sources and timing of chemical releases
and environmental site characterization and remediation. The
portions of Love’s declaration for which the trial court’s minute
order indicates it overruled plaintiffs’ objections indicated the
following:5
“Additional 1,4-Dioxane Contributions to Groundwater
Contamination Originate from 4335 Valley Boulevard.” “An
Equitable Allocation of 1,4-Dioxane Clean[up] Costs Among 1919
Vineburn Avenue and 4335 Valley Boulevard is Appropriate.”
“While there is still significant uncertainty based on incomplete
site investigation and not-yet determined regulatory
requirements, based on the current available data and an
expectation that the LARWQCB will require cleanup to drinking
water standards, the cost to remediate the co-mingled 1,4-
Dioxane Contamination from both 1919 Vineburn Avenue and
5 According to plaintiffs, notwithstanding the court’s
minute order expressly overruling plaintiffs’ objections to the
foregoing evidence, “[T]he court’s actual treatment of this
evidence and ultimate ruling makes clear that this testimony . . .
was excluded” and failed to “create a disputed issue of material
fact.”
10
4335 Valley Boulevard is reasonably expected to be $5 [million]
(with an additional contingency of $.08 [million]) . . . .” (Some
capitalization omitted.)
Dr. Love rejected plaintiffs’ expert’s damage assessment:
“Mr. Luis does not acknowledge the 1,4-dioxane release(s) that
occurred on the 4335 Valley Boulevard property, and he states
that his remedy is targeted only at treatment of 1,4-dioxane
migrating from the 1919 Vineburn property onto the 4335 Valley
Boulevard property.” As to Luis’s estimate of clean-up costs:
“The inflated costs presented by Mr. Luis result from a set of
unreliable assumptions . . . : a) he assumes that no remedial
activities can be performed on the 1919 Vineburn property, which
creates an inefficient remediation configuration that prevents
any 1,4-dioxane removal/treatment at 1919 Vineburn until it
migrates to the 4335 Valley Boulevard property and greatly
exceeds the time needed for remediation; b) he assumes the
targeted ISCO treatment zone to be 20 to 50 feet below ground
surface, even though groundwater monitoring results suggest the
applicable treatment zone of 17 to 40 feet below the ground
surface . . . ; c) he assumes that implementation of the injection
remedy does not work with expected efficiency . . . .”
6. Plaintiffs’ separate statement regarding Maddux;
Maddux filed no opposition to the motion for
summary adjudication
Plaintiffs’ separate statement included the following facts:
“Defendant Meruelo Maddux Properties-1919 Vineburn Street,
LLC . . . owned the Nardon Facility from 2005 through 2013.
“Defendant Meruelo Maddux has failed to take any measures to
prevent the migration of the Contamination onto the Farivar
Property.” “Defendant Meruelo Maddux has failed to take any
11
measures to remediate the Contamination flowing from the
Nardon Facility to [the] subsurface at the Farivar Property.”
Maddox filed no opposition to plaintiffs’ motion.
7. Hearing on motion for summary adjudication
At the hearing on plaintiffs’ summary adjudication motion,
Vineburn’s counsel argued the HMC’s 2020 report shows only
that some contamination migrated from the Vineburn Property to
the Farivar Property but does not show what contamination was
already present on the Farivar Property. Counsel argued
plaintiffs did not demonstrate causation because they “can’t
prove that we caused any damage.” Vineyard’s counsel also
disputed the scope of declaratory relief plaintiffs requested,
particularly, the “broad allegation that defendants are not only
the cause of the contamination, but defendants are solely
responsible for plaintiff’s [sic] damages including loss of use and
enjoyment of the . . . 4335 Valley Boulevard address.” Plaintiffs
argued that within the scope of the requested declaratory relief
are “liabilities that are identified in the complaint that had
nothing [to] do with any of the evidence supported.”
8. The trial court enters summary adjudication in
plaintiffs’ favor
The trial court summarily adjudicated plaintiffs’ causes of
action for continuing nuisance, continuing trespass, negligence,
including negligence per se, and declaratory relief. As to each
claim, the court ruled in conclusory fashion that plaintiffs had
met their initial burden in moving for summary adjudication and
defendants had failed to raise a triable issue of material fact.
The trial court stated the migration of contamination from
the Vineburn Property to the Farivar Property constituted an
12
interference with plaintiffs’ enjoyment and use of their property
and plaintiffs satisfied their initial burden to show the elements
of continuing nuisance and continuing trespass. The court relied
on HMC’s 2020 report showing that contamination from the
Nardon Facility had migrated onto the Farivar Property. The
court ruled defendants did not remediate the contamination thus
causing plaintiffs harm. The court stated, “[Vineburn] does not
present any admissible evidence in support” of its dispute on the
amount of damages. The court further stated Maddux did not
raise a triable issue of material fact because it did not file an
opposition.
With respect to negligence, the court found plaintiffs had
proffered evidence contaminated groundwater had migrated to
the Farivar Property; the contamination can be remediated; and
defendants’ failure to remediate harmed plaintiffs. The court
ruled neither defendant established a triable issue of material
fact as to these findings.
Turning to negligence per se, the court stated defendants or
their predecessors in interest violated California Civil Code
section 3479, California Water Code section 13350, and
California Health and Safety Code sections 5411 and 25249.5.
The court did not identify any specific facts showing violation of
these statutes. The court further stated Vineburn presented no
admissible evidence supporting its contention it did not breach
any statute and failed to raise a triable issue of material fact that
would defeat summary adjudication. Once again, Maddux failed
to raise a triable issue of fact because it did not file an opposition.
The court ruled plaintiffs were entitled to declaratory relief
because of evidence showing contaminated groundwater had
migrated and continues to migrate beneath the Farivar property;
13
the contamination can be remediated; and defendants had failed
to remediate the contamination thus harming plaintiffs. The
court stated neither defendant had raised a triable issue of
material fact that would defeat summarily adjudicating the
declaratory relief cause of action in plaintiffs’ favor. The court
rejected Vineburn’s argument that summary adjudication of
plaintiffs’ claim for declaratory relief was inappropriate because
it was unclear what the Los Angeles Regional Water Control
Board would require for remediation.
On September 24, 2024, the court issued an order granting
summary adjudication of plaintiffs’ causes of action for
negligence, negligence per se, continuing nuisance, continuing
trespass and declaratory relief.
9. Following dismissal of their remaining claims,
plaintiffs move for entry of judgment
Plaintiffs asserted that on October 2, 2024, they had
dismissed their remaining claims against Vineburn and Maddux
for permanent nuisance, permanent trespass, contribution, and
equitable indemnity. Plaintiffs then moved for entry of final
judgment in conformance with the entry of summary
adjudication. Plaintiffs argued nothing remained for the court to
adjudicate and final judgment was therefore appropriate.
Plaintiffs also sought prejudgment interest totaling $273,221.42.
10. Hearing on plaintiffs’ motion for entry of judgment
At the October 24, 2024 hearing on plaintiffs’ motion for
entry of judgment, Vineburn’s counsel argued the trial court
did not make a ruling on the amount of damages and therefore
could not enter judgment. Counsel for Vineburn also argued its
expert provided a declaration that the cost to remediate would be
14
$5 million and not the $11,779,000 estimate plaintiffs’ expert
posited.
11. The trial court ultimately grants plaintiffs’ motion
for entry of final judgment
In an order dated October 14, 2024, the court stated, “The
Court declines to approve the proposed judgment as the Court
did not make [a] ruling regarding damages amount.” In
response, Vineburn filed a written request, arguing entry of that
final judgment should be delayed until the amount of damages is
adjudicated. In contrast, plaintiffs argued they “proved their
damages totaled $11,971,887 and Defendants failed to carry their
burden to show a triable issue of fact, including with respect to
damages.”
In an order dated October 24, 2024, the court granted
plaintiffs’ motion for entry of final judgment and found
defendants jointly and severally liable. In reaching this
conclusion, the court reiterated its prior order in stating, “HPC
[Vineburn] and Maddux failed to present admissible evidence to
raise an issue of material fact as to Plaintiffs’ claimed damages.”
“As the Court stated in its Order, HPC [Vineburn] did not
sufficiently authenticate evidence that it, and its expert, relied
upon.” We observe, however, that this reasoning is inconsistent
with the trial court’s evidentiary ruling admitting significant
portions of Dr. Love’s declaration. (See Background, part 5,
ante.)
The trial court stated that Luis identified damages of
$11,971,887. (Lewis identified damages of $11,779,000.) The
court also determined Vineburn’s affirmative defenses “are
necessarily already adjudicated” because Vineburn had the
burden to show a triable issue of material fact as to those
15
defenses and Vineburn failed to do so. The court found
prejudgment interest was appropriate “[s]ince Plaintiffs included
admissible evidence of their amount of claimed damages” and
Vineburn failed to raise a triable issue of material fact as to the
amount of those damages — “damages were certain and
calculable at the time of filing the motion.”
12. Judgment
On November 7, 2024, the trial court entered judgment in
the amount of $12,245,108.42, which included $273,221.42 in
prejudgment interest. The court declared, “(a) Defendants HPC
Vineburn, LCC and Meruelo Maddux Properties-1919 Vineburn
Street, LLC are the cause of, and are responsible for, the 1,4-
dioxane contamination in the subsurface at 4335 Valley
Boulevard, Los Angeles California; and (b) Plaintiffs are not the
cause of, or responsible for, such contamination.” The court
subsequently awarded plaintiffs $29,265.45 in costs.
DISCUSSION
“[T]he party moving for summary judgment bears an initial
burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact; if he 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850.) A plaintiff moving for summary judgment or summary
adjudication meets the initial burden “if that party has proved
each element of the cause of action entitling the party to
judgment on the cause of action.” (Code Civ. Proc., § 437c,
subd. (p)(1).) The burden then shifts to the defendant “to show
16
that a triable issue of one or more material facts exists as to the
cause of action or a defense thereto.” (Ibid.) “There is a triable
issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof.” (Aguilar v. Atlantic Richfield Co., supra,
25 Cal.4th at p. 850.)
A party moving for summary judgment or summary
adjudication must support the motion with “a separate statement
setting forth plainly and concisely all material facts that the
moving party contends are undisputed. Each of the material
facts stated shall be followed by a reference to the supporting
evidence.” (Code Civ. Proc., § 437c, subd. (b)(1) [motion for
summary judgment]; see id., § 437c, subd. (f)(2) [motion for
summary adjudication “shall proceed in all procedural respects as
a motion for summary judgment”].) The party opposing the
motion must file with the opposition papers “a separate
statement that responds to each of the material facts contended
by the moving party to be undisputed, indicating if the opposing
party agrees or disagrees that those facts are undisputed. The
statement also shall set forth plainly and concisely any other
material facts the opposing party contends are disputed. Each
material fact contended by the opposing party to be disputed
shall be followed by a reference to the supporting evidence.” (Id.,
§ 437c, subd. (b)(3).)
“A motion for summary adjudication shall be granted only
if it completely disposes of a cause of action, an affirmative
defense, a claim for damages, or an issue of duty. (Code Civ.
Proc., § 437c, subd. (f)(1).) We review the granting of summary
judgment or summary adjudication de novo and liberally
17
construe the evidence in support of the party opposing summary
judgment. (Lyle v. Warner Brothers Television Productions (2006)
38 Cal.4th 264, 274.)
A. The Trial Court Erred In Summarily Adjudicating
the Negligence Cause of Action
Plaintiffs rely on the following “facts” to support their
contention the evidence shows, as a matter of law, that
defendants were negligent: (1) Since 2020, Vineburn has known
of contamination migrating onto the Farivar Property; (2) the
migration is ongoing; and (3) Vineburn admitted remediation is
necessary but has failed to remediate or otherwise prevent the
migration onto the Farivar Property. Plaintiffs similarly assert
Maddux breached the duty to prevent their property from
harming others by “permitting the migration of contamination
onto the Farivar Property, and by failing to take affirmative
measures to prevent or remediate it.”
The trial court found plaintiffs met their initial burden in
moving for summary adjudication. The court reasoned the
evidence showed contaminated groundwater migration from the
Vineyard Property to the Farivar Property, defendants failed to
remediate that contamination, and the contamination harmed
plaintiffs. The court then found defendants failed to raise a
triable issue of material fact as to those elements of negligence.
We conclude that the trial court erred in so finding.
As set forth below, although there is a common law duty to
act reasonably as to an adjacent property owner (see Discussion,
subpart 1, post), there are triable issues of fact as to whether
defendants breached that duty. Plaintiffs also cite several
statutes to support their contention defendants breached their
duty of care to plaintiffs as a matter law. None of those
18
authorities dissuades us from reversing the trial court’s ruling on
plaintiffs’ negligence claim. (See id., subpart 2, post).
1. Plaintiffs do not show as a matter of law that
defendants breached a common law duty to act
reasonably as to an adjacent landowner
The elements of negligence are duty, breach, causation, and
damages. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.)
In their first amended complaint, plaintiffs alleged defendants or
their predecessors “owed a duty of care in handling, storing, and
using hazardous and contaminating substan[ces] at the Nardon
Facility. Defendants and/or their predecessors in interest also
owed a duty of care in preventing hazardous and contaminating
substances from migrating onto the Farivar Property.” Plaintiffs
further alleged, “Defendants and/or their predecessors in interest
breached their duty of care by releasing, allowing the release of,
or failing to prevent the release of, the Contamination, and/or by
allowing the Contamination to migrate to the Farivar Property or
failing to prevent the same.” Finally, plaintiffs claim they were
damaged as a proximate result of that breach.
A landowner has a duty to use reasonable care not to harm
adjacent property. For example, in Booska v. Patel (1994)
24 Cal.App.4th 1786, 1791, the court reversed an order granting
summary judgment against the appellant-neighbor’s negligence
claim. Booska rejected respondent’s argument he had an
absolute right to sever encroaching roots from the neighbor’s tree.
The court held the neighbor’s right to manage his land was
“tempered by his duty to act reasonably” and there was a
question of material fact as to whether respondent acted
reasonably when he severed the roots of his neighbor’s tree so
19
badly as to require the tree’s removal. (Id. at pp. 1788, 1791–
1792.)
Plaintiffs cite two federal district court cases to support
their negligence claim. One is Walnut Creek Manor, LLC v.
Mayhew Center, LLC (N.D.Cal. 2009) 622 F.Supp.2d 918, 934,
which applied Booska’s duty to act reasonably in holding the
defendant landowner “had a duty not to act in a way that would
potentially release PCE onto” adjacent property. Evidence that
the defendant landowner had “drilled a slant boring” from the
defendant’s property to the adjacent property raised a triable
issue of material fact to defeat the defendant’s motion for
summary judgment as to the plaintiff’s negligence claim. (Ibid.)
The other district court case is Greenfield MHP Assoc., L.P.
v. Ametek, Inc. (S.D.Cal. 2015) 145 F.Supp.3d 1000 (Greenfield
MHP). In that case, the plaintiff adjacent and downgradient
property owners brought negligence, among other, claims against
the current and predecessor owners of property containing a tank
that stored toxic chemicals. (Id. at pp. 1004–1005.) The
plaintiffs alleged that over time, the tank failed causing toxic
chemicals to seep into the soil and groundwater on the plaintiffs’
respective properties. (Ibid.) Plaintiffs further alleged the
California Regional Water Quality Control Board for San Diego
County had filed a complaint charging the defendants with,
among other things, the “failure to take ‘any efforts to cleanup
and abate the effects of their discharge’ despite ‘20 years of
investigation efforts’ and Defendants being ‘repeatedly advised’
that their monitoring and remediation efforts were deficient.”
(Id. at p. 1005.)
The trial court denied the current and a predecessor
owners’ motions to dismiss the negligence claim for failure to
20
state a claim: “In a toxic tort case, a duty to exercise reasonable
care may exist where a defendant has subjected a plaintiff to
harm by exposing their [sic] land to toxic chemicals.” (Greenfield
MHP, supra, 145 F.Supp.3d at p. 1015.) The court focused on the
plaintiffs’ allegations that Senior Operations (the current owner)
knew about the presence of toxic chemicals on its property (id. at
p. 1014), had a duty to exercise reasonable care, which it
“breached . . . by ‘consciously ignor[ing]’ the risk of contamination
the toxic waste plume posed to Plaintiffs,” and thus caused
“groundwater and soil contamination on Plaintiffs’ land” (id. at
p. 1015). The court also held, in addition to a viable negligence
claim, the following allegations stated a cause of action for gross
negligence against the original owner: “Ametek ‘dump[ed] 1.848
million gallons of toxic waste next to nearby properties and an
elementary school,’ and then ‘fail[ed] to clean up or abate the
toxic plume it created, knowing it flowed beneath those
properties.’ ”6 (Greenfield MHP, at p. 1009.)
6 Defendants rely on a nonpublished district court case
from Maryland, SPS L.P. LLLP v. Sparrows Point, LLC (2017)
[2017 WL 3917153]. In the context of analyzing a cause of action
for negligence, the federal district court interpreted the plaintiffs
as arguing that defendants had a duty to contain hazardous
substances and prevent the migration of the hazardous
substances to the plaintiffs’ property. (Id. at p. *9.) The court
rejected the argument finding it would “essentially impose a
res ipsa loquitur-like liability on any subsequent owner, provided
some [contamination] remain[e]d in the groundwater.” (Ibid.)
We do not find this unpublished Maryland district court case
instructive on whether under California’s negligence law,
defendants were negligent as a matter of law.
21
As a preliminary matter, we conclude the record does not
support plaintiffs’ premise that Vineburn refused to remediate for
more than five years. Vineburn learned in May 2020 of the
migration, and prior to January 26, 2022, proposed a clean-up
plan. According to plaintiffs’ counsel, that plan is directed to the
Water Board and concerns cleanup of ground water both on
plaintiffs’ and defendants’ property.7 It appears the LARWQCB
did not accept Vineburn’s plan because, according to plaintiffs’
expert, the LARWQCB issued a subsequent investigative order
dated September 27, 2023 (after plaintiffs filed suit) requiring
“additional assessment to ‘complete the vertical and lateral
delineation of soil, soil vapor, and groundwater impacts.’ ”
Even assuming arguendo plaintiffs met their initial burden
to show Vineburn breached the duty to act reasonably to an
adjacent landowner by failing to commence remediation, a
reasonable trier of fact could conclude Vineburn has taken steps
toward remediation by proposing a remediation plan and the
delay in implementing that plan was not unreasonable in light of
LARWQCB’s request for additional investigation. (See Federico
v. Superior Court (1997) 59 Cal.App.4th 1207, 1214 [negligence is
generally a question of fact unless reasonable jurors could draw
only one conclusion].)
Plaintiffs’ expert, Luis, confirmed the importance of
LARWQCB’s approval of a remediation plan when his own
proposed remediation of the Farivar Property factored in
complying with LARWQCB cleanup requirements. Luis too
7 According to plaintiffs’ and Vineburn’s separate
statements, plaintiffs and Vineburn agree that “Vineburn has
made a ‘proposal to start cleaning-up the impacted ground water’
identified by the 2020 Subsurface Report.”
22
acknowledged the LARWQCB would require further
investigation and likely would require Vineburn to “remediate
groundwater at the Former Nardon Site” and at the Farivar
Property. Additionally, Luis applied the cleanup goal he
anticipated the LARWQCB would require and rejected other
possible remediations he opined would not comply with his
predicted LARWQCB remediation order requiring further
investigation.
More specifically, according to Luis, “Under the oversight of
the LARWQCB, the California MCLs are being used as cleanup
goals for the Former Square D Site. [Citation.] Based on my
experience at other sites in California, it is common for California
regulatory agencies such as the LARWQCB to apply the
California MCLs as cleanup goals for sites in California.
Therefore, for contaminants with established California MCLs it
is likely the LARWQCB will apply the California MCLs as
cleanup goals at the Former Square D Site for contaminants
originating at the Former Nardon Site.”
With respect to Maddux, plaintiffs’ undisputed facts show
Maddux owned the Nardon facility from 2005 through 2013 and
did not “take any measures to prevent the migration of the
Contamination onto the Farivar Property” or to remediate the
contamination. Plaintiffs, however, presented no evidence
Maddux was aware of the migrating contamination, and it
appears plaintiffs themselves only learned about that
contamination in 2020 when Vineyard completed its study.
Plaintiffs cite no legal authority supporting its implicit argument
that a landowner, who does not know of a contamination
problem, acts unreasonably when the landowner does not fix it.
The trial court thus erred in ruling plaintiffs met their initial
23
burden to demonstrate Maddux breached a duty owed to
plaintiffs.
2. Plaintiffs’ statutory authority does not show
defendants were negligent as a matter of law
Plaintiffs contend Civil Code sections 1714 and 3483, as
well as Government Code section 66600, support the trial court’s
summary adjudication of their negligence claim. Not so.
a. Civil Code section 1714
Plaintiffs cite Civil Code section 1714, subdivision (a)8 for
the proposition that “property owners such as Vineburn, have a
duty to take affirmative measures to prevent their property from
harming others.” Civil Code section 1714, subdivision (a) codifies
the principle that a landowner must use ordinary care, which
means “exercising reasonably prudent caution under the
circumstances.” (Coyle v. Historic Mission Inn Corp. (2018)
24 Cal.App.5th 627, 639.) Plaintiffs also cite Uccello v.
Laudenslayer (1975) 44 Cal.App.3d 504, 514–515 which applies
section 1714 to hold a trial court erred in granting nonsuit in
favor of a landlord who knew that a tenant had a dog with
dangerous propensities when a tenant’s invitee was injured by
the dog. We fail to discern the relevance of this case to the
environmental contamination case before us. Plaintiffs also fail
8 Civil Code section 1714, subdivision (a) provides in
pertinent part: “Everyone is responsible, not only for the result of
his or her willful acts, but also for an injury occasioned to another
by his or her want of ordinary care or skill in the management of
his or her property or person, except so far as the latter has,
willfully or by want of ordinary care, brought the injury upon
himself or herself.”
24
to explain what section 1714 adds to their assertion that
defendants failed to use reasonable care in allowing a toxic
chemical to seep onto their property. Plaintiffs have the
obligation to provide cogent argument. (Nelson v. Avondale
Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) As set forth
in the preceding subpart, plaintiffs have not satisfied their initial
burden to show defendants breached their duty of care to the
plaintiff-adjacent landowners.
b. Civil Code section 3483
Plaintiffs cite Civil Code section 34839 and nuisance cases
applying that statute to argue, “Lest there be any doubt, the
California Legislature has made clear that successive owners,
like Vineburn, owe a duty of care to abate contamination
emanating from their property ‘in the same manner as the one
who first created it.’ ” Plaintiffs fail to explain how a statute
governing continuing nuisance applies to the duty of care for a
negligence claim despite their burden to provide cogent
argument.
Plaintiffs’ reliance on nuisance case law suffers from the
same absence of cogent argument. For example, they cite City of
Turlock v. Bristow (1930) 103 Cal.App. 750, 755. That case
states, “Every successive owner of property who neglects to abate
a continuing nuisance upon, or in the use of such property,
created by the former owner, is liable therefor in the same
9 Civil Code section 3483 provides, “Every successive
owner of property who neglects to abate a continuing nuisance
upon, or in the use of, such property, created by a former owner,
is liable therefor in the same manner as the one who first created
it.”
25
manner as the one who first created it.” (Ibid.; see also People v.
Southern Pacific Co. (1957) 150 Cal.App.2d Supp. 831, 833.) City
of Turlock involved “an appeal from a decree awarding
mandatory relief from a public nuisance caused by the pollution
of the water of an irrigation ditch . . . .” (Id. at p. 752.) The court
stated, “There can be little doubt the irrigation ditch . . .
constitutes a nuisance subject to abatement” and as noted
indicated that all successive owners were liable. (Id. at p. 753.)
Plaintiffs provide no analysis on how Turlock compels judgment
on their negligence claim.
Plaintiffs also rely on an unpublished federal district court
case, Sisters of Notre Dame de Namur v. Garnett-Murray
(N.D.Cal. 2012) [2012 WL 2050377] (Sisters of Notre Dame
de Namur). That case awarded summary judgment as to liability
regarding nuisance and trespass causes of action involving
groundwater contamination.10 (Sisters of Notre Dame de Namur,
at pp. *1, *8].) More specifically, there, one defendant owned a
shopping center bordering the plaintiff’s property. (Id. at p. *1.)
The other defendant owned a drycleaner in the shopping center
that previously used tetrachlorethylene which contaminated the
soil under the dry cleaner and migrated to the plaintiff’s
property. (Ibid.) The defendants knew of the contamination for
nearly five years before initiating efforts to remediate. (Ibid.)
The federal district court acknowledged, “Neither party has
squarely addressed the issue of negligence,” but observed, in a
negligence cause of action, a landlord has a duty of ordinary care.
10 The court denied summary judgment of plaintiff’s claim
for violation of the Resource Conservation and Recovery Act,
42 United States Code section 6972. (Sisters of Notre Dame
de Namur, supra, [2012 WL 2050377, at p. *7].)
26
(Sisters of Notre Dame de Namur, supra, [2012 WL 2050377 at
p. *7].) The court further stated, “[The d]efendants’ decision not
to take any steps toward remediation constitutes a beach of that
duty [of ordinary care].” (Id. at p. *8.) We fail to discern how a
nonbinding federal district court case addressing different causes
of action and commenting on a claim that was not even in the
case demonstrates plaintiffs here are entitled to summary
adjudication of their negligence claim.
c. Government Code section 66600
Plaintiffs echo Civil Code section 1714 to contend the law
imposes a duty to take affirmative measures to prevent their
property from harming others. Plaintiffs then cite Leslie Salt Co.
v. San Francisco Bay Conservation etc. Com. (1984)
153 Cal.App.3d 605, 622 (Leslie Salt), to argue the law “imposes
this duty on all property owners with knowledge of a harmful
condition on their property; whether the owner caused the
harmful condition is irrelevant.”
Leslie Salt applied Government Code section 6660011 (the
McAteer-Petris Act), to hold a landowner strictly liable for
11 Government Code section 66600 provides: “The
Legislature hereby finds and declares that the public interest in
the San Francisco Bay is in its beneficial use for a variety of
purposes; that the public has an interest in the bay as the most
valuable single natural resource of an entire region, a resource
that gives special character to the bay area; that the bay is a
single body of water that can be used for many purposes, from
conservation to planned development; and that the bay operates
as a delicate physical mechanism in which changes that affect
one part of the bay may also affect all other parts. It is therefore
declared to be in the public interest to create a politically-
27
unauthorized bay fill placed on its property by unknown third
persons. (Leslie Salt, supra, 153 Cal.App.3d at pp. 608, 609, 622.)
Government Code section 66600 describes a public interest in the
San Francisco Bay because “the bay operates as a delicate
physical mechanism in which changes that affect one part of the
bay may also affect all other parts.” (See fn. 11, ante.) Thus, “the
duty to take affirmative action flow[s] not from the landowner’s
active responsibility for a condition of his land that causes
widespread harm to others or his knowledge of or intent to cause
such harm but rather, and quite simply, from his very possession
and control of the land in question.” (Leslie Salt, at p. 622.) The
appellate court then reversed a trial court judgment ordering the
administrative agency to set aside a cease and desist order
requiring the landowner to remove fill placed “on marshy
wetlands on parcels located within the [agency’s] permit
jurisdiction.” (Ibid.)
Again, we fail to see how a landowner’s obligations under
the McAteer-Petris Act support plaintiffs’ cause of action for
negligence and plaintiffs provide no cogent argument to support
their reliance on Leslie Salt or Government Code section 66600.
We thus do not address this challenge further.
B. The Trial Court Erred In Summarily Adjudicating
Plaintiffs’ Assertion of a Presumption of Negligence
Under the Negligence Per Se Doctrine
“ ‘[T]he doctrine of negligence per se is not a separate cause
of action, but creates an evidentiary presumption that affects the
responsible, democratic process by which the San Francisco Bay
and its shoreline can be analyzed, planned, and regulated as a
unit.”
28
standard of care in a cause of action for negligence.’ [Citation.]”
(Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549,
555.) “[A]pplication of the doctrine of negligence per se means
that the court has adopted the conduct prescribed by the statute
as the standard of care for a reasonable person in the
circumstances.” (Casey v. Russell (1982) 138 Cal.App.3d 379,
383.) Under this doctrine the plaintiff “ ‘borrows’ ” the statute to
prove the standard of care. (Johnson, at p. 558.) Negligence
per se requires plaintiffs to show defendant violated a statute,
ordinance, or regulation, the violation proximately caused harm
to the plaintiff, and the law was intended to protect persons like
the plaintiffs from the alleged harm. (Spriesterbach v. Holland
(2013) 215 Cal.App.4th 255, 263–264.)
Plaintiffs allege in their operative complaint that by
creating the contamination or allowing it to migrate to the
subsurface beneath the Farivar Property, defendants violated
“California Civil Code [section] 3479 . . . , California Water Code
[section] 13350 . . . , California Health and Safety Code [section]
5411 . . . and California Health and Safety Code [section]
25249.5 . . . .”
To recap, the trial court found that the following evidence
satisfied plaintiffs’ initial burden in moving for summary
adjudication on their negligence claim: “Plaintiffs have presented
evidence that contaminated groundwater at the Nardon Facility
migrated, and continues to migrate, to the groundwater beneath
the Farivar Property. [Citation.] Defendants’ discharge of the
contamination constitutes a violation of each of the statutes
listed” in the operative complaint. This was error because none
of these statutes supports a presumption of breach of a duty as a
matter of law.
29
1. Civil Code section 3479
Civil Code section 3479 defines nuisance as: “Anything
which is injurious to health, including, but not limited to, the
illegal sale of controlled substances, 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, or
unlawfully obstructs the free passage or use, in the customary
manner, of any navigable lake, or river, bay, stream, canal, or
basin, or any public park, square, street, or highway, is a
nuisance.” The parties’ respective arguments addressing
section 3479 are terse.
Vineburn contends the elements of a nuisance claim are
interference that is intentional and unreasonable, unintentional
“ ‘but caused by negligent or reckless conduct,’ ” or the product of
“ ‘abnormally dangerous activity for which there is strict
liability.’ ” (Quoting Lussier v. San Lorenzo Valley Water Dist.,
(1988) 206 Cal.App.3d 92, 100.) Vineburn recognizes that private
nuisance and negligence claims can be closely related: “ ‘Where
negligence and nuisance causes of action rely on the same facts
about lack of due care, the nuisance claim is a negligence claim,’ ”
(quoting Melton v. Boustred, supra, 183 Cal.App.4th at p. 542.)
Vineburn, however, further asserts, Civil Code section 3479
itself does not “create a duty of care owed by HPC Vineburn to
Farivar beyond that of Farivar’s negligence claim.” To apply
section 3479 to define a duty of care would impose “strict
liability” without a finding of “intent, unreasonableness,
recklessness, or ultra-hazardous activity.”
Plaintiffs respond that Vineburn “does not even attempt to
deny that it violated Civil Code [section] 3479 by creating a
nuisance” and cite Schaeffer v. Gregory Village Partners, L.P.
30
(N.D.Cal. 2015) 105 F.Supp.3d. 951, 965 as granting partial
summary judgment on “select elements of liability for negligence
per se based in part on violations of Civil Code section 3479
arising out of alleged PCE soil and groundwater contamination.”
These arguments are ships passing in the night. Vineburn
recognizes that a negligence per se claim can mirror a negligence
claim if they arise out of the same lack of due care. Application of
the negligence per se doctrine, however, requires adopting a
statute’s prescribed conduct as breach of the standard of care.
(Casey v. Russell, supra, 138 Cal.App.3d at p. 383.) Civil Code
section 3479 does not prescribe any specific conduct. In addition,
“[n]uisance is an entirely separate cause of action from
negligence” and a nuisance cause of action is not dependent on
the existence of a duty between the plaintiff and defendant.
(Lynch v. Peter & Associates etc. (2024) 104 Cal.App.5th 1181,
1198.12
2. Water Code section 13350
Water Code section 13350, subdivision (b) provides: “A
person who, without regard to intent or negligence, causes or
permits a hazardous substance to be discharged in or on any of
the waters of the state, except in accordance with waste
discharge requirements or other provisions of this division, shall
be strictly liable civilly in accordance with subdivision (d) or
12 Schaeffer v. Gregory Village Partners, L.P., supra,
105 F.Supp.3d at page 965 does not analyze whether a nuisance
cause of action may support negligence per se. To the extent the
federal district court assumes that committing a nuisance is also
negligence per se (see id. at p. 968), we are not persuaded
because the court cited no authority for that proposition.
31
(e).”13 (Wat. Code, § 13350, subd. (b)(1).) Subdivision (b)(2) of the
statute defines “discharge” for purposes of subdivision (b)(1) as:
“includ[ing] only those discharges for which Section 13260 directs
that a report of waste discharge shall be filed with the regional
board.”14 Water Code section 13350, subdivision (b)(3) further
limits the meaning of “discharge” for purposes of section 13350
subdivision (b)(1).15
13 Subdivisions (d) and (e) permit imposition of “civil
liability [either] on a daily basis” or “on a per gallon basis,” and
subdivision (k) requires that all funds be deposited into the
“Waste Discharge Permit Fund.” (Wat. Code, § 13350, subds. (d),
(e), & (k).)
14 Water Code section 13260 provides in pertinent part:
“(a) Each of the following persons shall file with the appropriate
regional board a report of the discharge, containing the
information that may be required by the regional board:
“(1) A person discharging waste, or proposing to discharge
waste, within any region that could affect the quality of the
waters of the state, other than into a community sewer system.
“(2) A person who is a citizen, domiciliary, or political
agency or entity of this state discharging waste, or proposing to
discharge waste, outside the boundaries of the state in a manner
that could affect the quality of the waters of the state within any
region.
“(3) A person operating, or proposing to construct, an
injection well.” (Wat. Code, § 13260, subd. (a).)
15 Water Code section 13350, subdivision (b)(3) provides:
“For purposes of this subdivision, the term ‘discharge’ does not
include an emission excluded from the applicability of
Section 311 of the Clean Water Act (33 U.S.C. [§] 1321) pursuant
to Environmental Protection Agency regulations interpreting
32
Plaintiffs ignore Water Code section 13350,
subdivision (b)’s definition of discharge and do not argue or show
that the contamination it alleges against defendants is
“ ‘discharge,’ ” as defined in section 13350, subdivision (b).
Plaintiffs’ separate statement contains no facts that either
Maddux or Vineburn discharged waste within the meaning of
section 13350, subdivision (b). A fortiori, they have not shown
this statute would support their negligence per se claim here.
Section 311(a)(2) of the Clean Water Act (33 U.S.C. [§]
1321(a)(2)).
“(c) A person shall not be liable under subdivision (b) if the
discharge is caused solely by any one or combination of the
following:
“(1) An act of war.
“(2) An unanticipated grave natural disaster or other
natural phenomenon of an exceptional, inevitable, and
irresistible character, the effects of which could not have
been prevented or avoided by the exercise of due care or
foresight.
“(3) Negligence on the part of the state, the United
States, or any department or agency thereof. However, this
paragraph shall not be interpreted to provide the state, the
United States, or any department or agency thereof a
defense to liability for any discharge caused by its own
negligence.
“(4) An intentional act of a third party, the effects of
which could not have been prevented or avoided by the
exercise of due care or foresight.
“(5) Any other circumstance or event that causes the
discharge despite the exercise of every reasonable
precaution to prevent or mitigate the discharge.”
33
We recognize that plaintiffs cite a dictionary definition of
discharge and refer us to a different provision in the Water
Code.16 Because Water Code section 13350, subdivision (b)
specifically defines discharge for purposes of that subdivision,
plaintiffs’ reliance on different definitions is unpersuasive.
(Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063 [“If the
Legislature has provided an express definition of a term, that
definition ordinarily is binding on the courts.”].)
16 Water Code section 13304, cited by plaintiffs, provides
in part: “A person who has discharged or discharges waste into
the waters of this state in violation of any waste discharge
requirement or other order or prohibition issued by a regional
board or the state board, or who has caused or permitted, causes
or permits, or threatens to cause or permit any waste to be
discharged or deposited where it is, or probably will be,
discharged into the waters of the state and creates, or threatens
to create, a condition of pollution or nuisance, shall, upon order of
the regional board, clean up the waste or abate the effects of the
waste, or, in the case of threatened pollution or nuisance, take
other necessary remedial action, including, but not limited to,
overseeing cleanup and abatement efforts. A cleanup and
abatement order issued by the state board or a regional board
may require the provision of, or payment for, uninterrupted
replacement water service, which may include wellhead
treatment, to each affected public water supplier or private well
owner. Upon failure of a person to comply with the cleanup or
abatement order, the Attorney General, at the request of the
board, shall petition the superior court for that county for the
issuance of an injunction requiring the person to comply with the
order. In the suit, the court shall have jurisdiction to grant a
prohibitory or mandatory injunction, either preliminary or
permanent, as the facts may warrant.”
34
3. Health and Safety Code section 5411
Health and Safety Code section 5411 provides: “No person
shall discharge sewage or other waste, or the effluent of treated
sewage or other waste, in any manner which will result in
contamination, pollution or a nuisance.” Section 5410 in turn
defines, contamination, pollution, and nuisance.
“ ‘Contamination’ means an impairment of the quality of the
waters of the state by waste to a degree which creates a hazard to
the public health through poisoning or through the spread of
disease. ‘Contamination’ shall include any equivalent effect
resulting from the disposal of waste, whether or not waters of the
state are affected.” (Health & Saf. Code, § 5410, subd. (d).)
“ ‘Pollution’ means an alteration of the quality of the waters of
the state by waste to a degree which unreasonably affects:
(1) such waters for beneficial uses, or (2) facilities which serve
such beneficial uses. ‘Pollution’ may include ‘contamination.’ ”
(Id., subd. (e).) “(f) ‘Nuisance’ means anything which: (1) 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, and (2) affects at the
same time an entire community or neighborhood, or any
considerable number of persons, although the extent of the
annoyance or damage inflicted upon individuals may be unequal,
and (3) occurs during, or as a result of, the treatment or disposal
of wastes.” (Id., subd. (f).)
Plaintiffs assert defendants discharged a “waste substance”
resulting in “contamination” and “pollution” as defined in Health
and Safety Code section 5411. Plaintiffs further assert the
“waste” is an “ ‘impairment of the quality of the waters of the
state by waste to a degree which creates a hazard to the public
35
health through poisoning or through the spread of disease’ or ‘any
equivalent effect resulting from the disposal of waste.’ ”
According to plaintiffs, “1,4-dioxane is designated ‘toxic’ and
therefore creates a hazard to human health through poisoning, or
at least has the ‘equivalent effect’ resulting from its disposal.”
The party moving for summary adjudication must identify
the purported material undisputed facts in its separate
statement. (Code Civ. Proc., § 437c, subds. (b)(1) & (f)(2).)
Plaintiffs failed to address their assertions under Health and
Safety Code section 5411 in their separate statement.
Accordingly, we do not address this argument further.
4. Health and Safety Code section 25249.5
Health and Safety Code section 25249.5 provides: “No
person in the course of doing business shall knowingly discharge
or release a chemical known to the state to cause cancer or
reproductive toxicity into water or onto or into land where such
chemical passes or probably will pass into any source of drinking
water, notwithstanding any other provision or authorization of
law except as provided in Section 25249.9.”17 (Italics added.)
17 Health and Safety Code section 25249.9 provides in
pertinent part: “(a) Section 25249.5 shall not apply to any
discharge or release that takes place less than twenty months
subsequent to the listing of the chemical in question on the list
required to be published under subdivision (a) of Section 25249.8.
“(b) Section 25249.5 shall not apply to any discharge or
release that meets both of the following criteria:
36
Plaintiffs’ separate statement, however, does not contain
facts that in the course of doing business, defendants knowingly
discharged or released a chemical known to the state to cause
cancer or reproductive toxicity into water or into land. Indeed,
the parties’ statements of undisputed facts indicate it was the
Nardon Facility that discharged waste, not defendants. In sum,
summary adjudication based on a purported presumption of
negligence based on Health and Safety Code section 25249.5 was
error.
5. Los Angeles Municipal Code Ordinance
No. 64.70.0218
On appeal, and for the first time, plaintiffs argue
defendants were negligent based on a violation of Los Angeles
Municipal Code section 64.70.02, subdivision A.1. Los Angeles
Municipal Code Ordinance No. 64.70.02, subdivision A.1.
provides: “No person shall discharge, cause, permit, or contribute
“(1) The discharge or release will not cause any
significant amount of the discharged or released chemical
to enter any source of drinking water.
“(2) The discharge or release is in conformity with all
other laws and with every applicable regulation, permit,
requirement, and order.”
18 We grant Vineburn’s request for judicial notice of article
4.4. of the Los Angeles Municipal Code which is entitled
“Stormwater and Urban Runoff Pollution Control” and includes
Ordinance No. section 64.70.01. (United Neighborhoods for
Los Angeles v. City of Los Angeles (2023) 93 Cal.App.5th 1074,
1082, fn. 4 [court took judicial notice of sections of the
Los Angeles Municipal Code].) This moots plaintiffs’ request for
judicial notice of portions of article 4.4.
37
to the discharge of any of the following to the storm drain system
or receiving waters: [¶] 1. Any liquids, solids or gases which by
reason of their nature or quantity are flammable, reactive,
explosive, corrosive, or radioactive, or by interaction with other
materials could result in fire, explosion or injury.” Ordinance No.
64.70.01 defines discharge as “any release, spill, leak, pump, flow,
escape, dumping, or disposal of any liquid, semi-solid or solid
substance.” (L.A. Mun. Code, Ord. No. 64.70.01, subd. A.15.)
Ordinance No. 64.70.01 defines receiving waters to include
“groundwater formations.” (Id., subd. A.33.)
Plaintiffs did not refer to Ordinance No. 64.70.01 in their
operative pleading, which frames the issues for summary
judgment and summary adjudication. (See Hutton v. Fidelity
National Title Co. (2013) 213 Cal.App.4th 486, 493.) They did not
reference that ordinance in their motion for summary
adjudication. Plaintiffs cannot belatedly support negligence per
se with an ordinance cited for the first time on appeal. Citing
Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967,
975, plaintiffs assert this court may uphold the trial court’s
decision if it is correct on any ground. That case, however, does
not hold that a party may support the trial court’s granting of a
motion for summary adjudication or summary judgment with a
statutory argument raised for the first time on appeal.
C. Summary Adjudication of Plaintiffs’ Continuing
Nuisance Claim Was Error Because They Employed
the Wrong Measure of Damages for a Continuing
Nuisance
Our Supreme Court has identified the following elements of
nuisance: A private nuisance is “a nontrespassory interference
with the private use and enjoyment of land.” “[T]he invasion of
38
the plaintiff’s interest in the use and enjoyment of the land was
substantial, i.e., that it caused the plaintiff to suffer ‘substantial
actual damage.’ [Citations.]” (San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 937–938.) Additionally,
the “ ‘interference with the protected interest must not only be
substantial, but it must also be unreasonable’ [citation], i.e., it
must be ‘of such a nature, duration or amount as to constitute
unreasonable interference with the use and enjoyment of the
land.’ [Citations.]” (Id. at p. 938.) Our high court continued,
“The primary test for determining whether the invasion is
unreasonable is whether the gravity of the harm outweighs the
social utility of the defendant’s conduct, taking a number of
factors into account. [Citation.] Again the standard is objective:
the question is not whether the particular plaintiff found the
invasion unreasonable, but ‘whether reasonable persons
generally, looking at the whole situation impartially and
objectively, would consider it unreasonable.’ [Citation.]” (Ibid.)
The failure to clean up contamination that causes ongoing
damage to property may constitute a continuing nuisance.
(Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th
93, 99; see also Newhall Land & Farming Co. v. Superior Court
(1993) 19 Cal.App.4th 334, 345 [viable claim nuisance based on
contaminated soil and groundwater]; Capogeannis v. Superior
Court (1993) 12 Cal.App.4th 668, 673 [underground storage tanks
that leaked and contaminated groundwater supporting
continuing nuisance cause of action].) “Every successive owner of
property who neglects to abate a continuing nuisance upon . . .
such property, created by a former owner, is liable therefor in the
same manner as the one who first created it.” (Civ. Code,
§ 3483.)
39
1. Plaintiffs did not demonstrate undisputed facts
regarding damages for continuing nuisance
The measure of damages for a nuisance depends on
whether the nuisance is continuing or permanent. “[I]f the
nuisance is one ‘ “which may be discontinued at any time, it is
considered continuing in character and persons harmed by it may
bring successive actions for damages until the nuisance is abated.
[Citation.] Recovery is limited, however, to actual injury suffered
prior to commencement of each action. Prospective damages are
unavailable.” [Citation.]’ [Citation.]” (Gehr v. Baker Hughes Oil
Field Operations, Inc. (2008) 165 Cal.App.4th 660, 666–667.)
In Baker v. Burbank-Glendale-Pasadena Airport Authority
(1985) 39 Cal.3d 862, our Supreme Court explained the
classification of a nuisance as either permanent or continuing
dictates the nature of remedies available to the plaintiff-
landowner. “Two distinct classifications have emerged in
nuisance law which determine the remedies available to injured
parties and the applicable statute of limitations. On the one
hand, permanent nuisances are of a type where ‘ “by one act a
permanent injury is done, [and] damages are assessed once for
all.” ’ [Citation.] . . . In such cases, plaintiffs ordinarily are
required to bring one action for all past, present and future
damage within three years after the permanent nuisance is
erected.” (Id. at pp. 868–869, fns. omitted.)
“On the other hand, if a nuisance is a use which may be
discontinued at any time, it is considered continuing in character
and persons harmed by it may bring successive actions for
damages until the nuisance is abated. [Citation.] Recovery is
limited, however, to actual injury suffered prior to
commencement of each action. Prospective damages are
40
unavailable.” (Baker v. Burbank-Glendale-Pasadena Airport
Authority, supra, 39 Cal.3d at p. 869.) Our Supreme Court
subsequently reaffirmed in a continuing nuisance case, that
“ ‘[r]ecovery is limited . . . to actual injury suffered prior to
commencement of each action. Prospective damages are
unavailable.’ ” (Mangini v. Aerojet-General Corp. (1996)
12 Cal.4th 1087, 1103.)
The damages plaintiffs sought in moving for summary
adjudication and awarded in the judgment are not limited to the
actual injury suffered prior to the commencement of the lawsuit.
Similarly, in their separate statement of facts, plaintiffs do not
assert damages based on injury suffered prior to the
commencement of their lawsuit. Instead, they claim prospective
damages. Specifically, their expert, Luis, valued remediation
costs for the next 20 years and expert, Lofgren, opined on rental
costs during the proposed 20-year remediation period.
Plaintiffs argue, “Where it is ‘improbable’ that a nuisance
or trespass ‘can or will be abated, the plaintiff should not be left
to the troublesome remedy of successive actions.’ ” That principal
has led courts to afford a plaintiff the choice “to treat the
nuisance as either permanent or not.” (Spaulding v. Cameron
(1952) 38 Cal.2d 265, 268.) Here, we are reviewing only a cause
of action for a continuing nuisance because plaintiffs dismissed
their cause of action for permanent nuisance.
Because plaintiffs allege a continuing nuisance, their
damages are limited to those damages incurred prior to filing
their continuing nuisance claim. Their separate statement and
accompanying evidence are not consistent with this limitation.
Because damages are an element of a continuing nuisance claim,
41
the trial court erred in summarily adjudicating that cause of
action.
2. Plaintiffs’ legal authority do not compel a
different result
Citing Starrh & Starrh Cotton Growers v. Aera Energy LLC
(2007) 153 Cal.App.4th 583 (Starrh), plaintiffs argue they are
entitled to damages “for both past harm and harm that ‘can with
certainty be expected to occur.’ ” Starrh involved defendants’
alleged continuing trespass based on migration of wastewater
from oil production activities onto plaintiffs’ land. (Id. at p. 588.)
The jury awarded avoided cost damages (“those damages avoided
as a result of the disposal of produced water”) against one
defendant and restoration costs damages (“those designed to
return the property to its native condition”) against the other.
(Id. at p. 589.) The appellate court reversed the damages awards
because of instructional error and sufficiency of evidence
regarding whether “cleaning up the contamination is possible or
economically practical.” (Id. at pp. 599–600.)
Starrh recognized that damages for a continuing trespass
“are assessed for present and past damages only; prospective
damages are not awarded because the trespass may be
discontinued or abated at some time, ending the harm.” (Starrh,
supra, 153 Cal.App.4th at p. 592.) Borrowing in part from the
measure of damages in Civil Code section 3334, subdivision (a)19
19 Civil Code section 3334, subdivision (a) provides: “The
detriment caused by the wrongful occupation of real property . . .
is deemed to include the value of the use of the property for the
time of that wrongful occupation, . . . the reasonable cost of repair
42
regarding wrongful occupation of land, the court, however, stated,
“In any trespass case, the proper measure of damages is the one
that will fully compensate the plaintiff for damages that have
occurred or can with certainty be expected to occur.” (Id. at p. 599,
italics added.)
Arguably Starrh’s conclusion that a plaintiff is entitled to
damages that can with certainty be expected to occur is
inconsistent with established case law holding prospective
damages are not available for a continuing trespass. In any
event, we need not resolve this apparent inconsistency because
plaintiffs have not shown, as a matter of law, that the facts are
undisputed even under Starrh’s formula. It was undisputed that
Vineburn proposed to remediate the contamination and that it
was likely the LARWQCB would require remediation of the
contamination on the Vineburn Property. This undisputed fact
undermines plaintiffs’ claim that continuing damages can with
certainty be expected to occur.
Plaintiffs cite an unpublished case, Orange County Water
District v. Unocal Corp. (C.D.Cal. 2016) [2016 WL 11201024], for
the proposition that courts may award plaintiffs the cost of
abatement even when abatement has not yet occurred. That case
cited De Costa v. Massachusetts Flat Water & Mining Co. (1861)
17 Cal. 613, 617 (De Costa) for the principle that “[s]ometimes,
courts award plaintiffs the cost of abatement, rather than issue
an injunction ordering defendants’ abatement of a nuisance. This
occurs even when abatement has not yet occurred and therefore
the damages accrued by bearing future remediation costs are
or restoration of the property to its original condition, and the
costs, if any, of recovering the possession.” (Italics added.)
43
necessarily prospective.” (Orange County Water District, at
p. *6.) De Costa, however, does not stand for that principle.
De Costa involved a nuisance caused by digging a ditch on
plaintiff’s land. (De Costa, supra, 17 Cal. at p. 617.) The trial
court ordered the nuisance abated and awarded damages to pay
the expense of filling up the ditch and restoring the land to its
original condition. (Ibid.) The high court held this award of
damages was erroneous because “[t]he plaintiff could not recover
beyond the injury sustained, and it was improper to award
compensation for an expense which might never be incurred.”
(Ibid.) Our high court subsequently described De Costa as
explaining that “the damages for creating an unwanted ditch on
another’s property were confined to the injury sustained, the
diminution in the value of the property in its present condition,
rather than the full cost of remediation (filling in the ditch).”
(Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 773.) We find
Orange County Water District unpersuasive because it
misconstrues our high court’s holding.
D. Plaintiffs Have Not Demonstrated as a Matter of Law
All Elements of a Continuing Trespass Cause of
Action Because They Did Not Demonstrate Damages
for that Continuing Tort
“The elements of trespass are: (1) the plaintiff’s ownership
or control of the property; (2) the defendant’s intentional,
reckless, or negligent entry onto the property; (3) lack of
permission for the entry or acts in excess of permission; (4) harm;
and (5) the defendant’s conduct was a substantial factor in
causing the harm.” (Ralphs Grocery Co. v. Victory Consultants,
Inc. (2017) 17 Cal.App.5th 245, 262.) Like a nuisance, a trespass
may be continuing or permanent. (Magini v. Aerojet-General
44
Corp., supra, 12 Cal.4th at p. 1097.) Prospective damages are not
available for a continuing trespass. (Kornoff v. Kingsburg Cotton
Oil Co. (1955) 45 Cal.2d 265, 269.)
As set forth above regarding a continuing nuisance,
plaintiffs’ damages are based on an improper measure, and
therefore, plaintiffs have not demonstrated, as a matter of law,
this essential element of a continuing trespass claim. The trial
court thus erred in summarily adjudicating that claim. (Code
Civ. Proc., § 437c, subd. (f)(1).) We do not address the parties’
arguments as to other elements of plaintiffs’ continuing trespass
claim.
E. The Trial Court Erred in Summarily Adjudicating
the Declaratory Relief Cause of Action
In their first amended complaint, plaintiffs sought the
following declaration: “(a) Defendants are the cause of the
Contamination; [¶] (b) Defendants are solely responsible for
Plaintiffs’ damages incurred as a result of the Contamination,
including but not limited to damages for the loss of use and
enjoyment of 4335 Valley Boulevard; the expenses of
investigating and remediating the Contamination, diminution of
4335 Valley Boulevard’s value; liabilities to third parties,
including the applicable governmental agencies arising from
Contamination; and all other monetary damages; [¶] (c) Plaintiffs
are not liable for any such damages; and [¶] (d) Defendants must
remediate the Contamination on 4335 Valley Boulevard within a
timeframe as ordered by the Court.” The first amended
complaint alleges that “contamination from the Nardon Facility
(‘the Contamination’) has migrated, and is continuing to migrate
today, to the groundwater beneath 4335 Valley Boulevard.” The
first amended complaint further alleges that “[t]he
45
Contamination consists of hazardous substances including,
among other things, 1,4-dioxane, 1,1-DCE, and PCE.”
As previously noted, the judgment provides the following
declaratory relief: “Defendants HPC Vineburn, LLC and Meruelo
Maddox Properties-1919 Vineburn Street, LLC are the cause of,
and are responsible for, the 1,4-dioxane contamination in the
subsurface at 4335 Valley Boulevard, Los Angeles, California;
and [¶] (b) Plaintiffs are not the cause of, or responsible for, such
contamination.”
We conclude that the trial court erred in partially
adjudicating the cause of action for declaratory relief.20
20 This court requested supplemental briefing on
(1) whether the declaratory relief was consistent with Code of
Civil Procedure section 437c, subdivision (f)(1); and (2) whether
plaintiffs satisfied their initial burden of showing that no prior
owner of the Farivar Property contributed to the 1,4 dioxane
contamination on that property that was not already remediated
at the time the court ruled. Plaintiffs and Vineburn filed
supplemental briefs; Maddux did not.
In its supplemental brief, plaintiffs cite Osborne v.
Pleasanton Automotive Co., LP (2024) 106 Cal.App.5th 361, 380–
381 for the proposition that defendants waived the argument that
Code of Civil Procedure section 437c, subdivision (f) prohibits
piecemeal litigation. Osborne cites the well-established
proposition that this court may treat as waived an argument on
which the appellant does not present legal authority. (Ibid.)
Plaintiffs, however, do not stand for the proposition that this
court lacks discretion to consider the applicability of section 437c,
subdivision (f). (See Bayside Timber Co. v. Board of Supervisors
(1971) 20 Cal.App.3d 1, 5 [whether forfeiture rule is applied is
within discretion of appellate court].) Here, we sent a focus letter
prior to oral argument identifying the issue, heard argument on
46
Prior to the 1990 amendments to the summary judgment
law, a party could move for “summary adjudication of issues
either by itself or as an alternative to summary judgment.”
(Former § 437c, subd. (f), Stats. 1989, ch. 1416, § 16.) Under the
prior statute, if the evidence supported a finding that there were
no triable issues of fact as to some, but not all the issues involved
in the action, the trial court had to specify that those issues were
“without substantial controversy.” (Ibid.)
The Legislature amended former section 437c, subdivision
(f) and eliminated the reference to “issues without substantial
controversy.” The current statute provides: “A party may move
for summary adjudication as to one or more causes of action
within an action, one or more affirmative defenses, one or more
claims for damages, or one or more issues of duty, if the party
contends that the cause of action has no merit, that there is no
affirmative defense to the cause of action, that there is no merit
to an affirmative defense as to any cause of action, that there is
no merit to a claim for damages, as specified in Section 3294 of
the Civil Code, or that one or more defendants either owed or
did not owe a duty to the plaintiff or plaintiffs. A motion for
summary adjudication shall be granted only if it completely
disposes of a cause of action, an affirmative defense, a claim for
damages, or an issue of duty.” (Code Civ. Proc., § 437, subd. (f).)
In Hood v. Superior Court (1995) 33 Cal.App.4th 319,
Division Four of this court answered the following question:
“May a party select issues (other than duty and punitive
damages) implicated in one or more causes of action in its
complaint or cross-complaint, amend that pleading to add a cause
it, and allowed the parties thereafter to brief the issue. We thus
exercise our discretion to decide the issue.
47
of action for declaratory relief as to those issues, and then obtain
a summary adjudication of the declaratory relief cause of action?”
(Id. at p. 321.) The court answered that a party “cannot” take
such action because it would “subvert the restrictions of Code of
Civil Procedure section 437c, subdivision (f)(1).” (Ibid.) Hood
explained that in amending section 437c, subdivision (f) in 1990,
the Legislature sought “ ‘to stop the practice of adjudication of
facts or adjudication of issues that do not completely dispose of a
cause of action or defense.’ [Citation.]” (Id. at p. 323; see also
California Taxpayers Action Network v. Taber Construction, Inc.
(2017) 12 Cal.App.5th 115, 150 [declaratory relief cause of action
superfluous because other causes of action encompassed same
issues]; Belio v. Panorama Optics, Inc. (1995) 33 Cal.App.4th
1096, 1103 [seeking summary adjudication of only a single issue
within a cause of action was “procedurally infirm and should
have been denied”]; Southern Cal. Edison Co. v. Superior Court
(1995) 37 Cal.App.4th 839, 846 [“[T]he plain lesson of “Hood is
that parties will not be allowed to misuse the declaratory relief
cause of action in an attempt to subvert the requirement a
summary adjudication must completely dispose of a cause of
action].”) The declaratory relief awarded in the judgment before
us circumvents Code of Civil Procedure section 437c, subdivision
(f)’s requirement that summary adjudication completely dispose
of a cause of action. The declaratory relief awarded in the
judgment did not address all elements of plaintiffs’ cause of
action for declaratory relief as alleged in the first amended
complaint. Instead, the court provided a “summary adjudication
of issues,” specifically declaring that defendants were responsible
for 1,4 dioxane contamination on the Farivar Property and
plaintiffs were not responsible for that 1,4 dioxane
48
contamination. The court did not adjudicate any issue regarding
the other chemicals defined as “Contamination” in the first
amended complaint, or whether defendants were required to
remediate the “Contamination” (including 1,4 dioxane) on the
Farivar Property. The trial court thus erred in granting
summary adjudication of the declaratory relief cause of action.
F. The Parties’ Remaining Arguments
We do not address the parties’ remaining arguments either
because we are reversing on other grounds for the reasons set
forth in our Discussion, ante, or because the argument was
forfeited.
1. Luis’s declaration
Vineburn argues plaintiffs’ expert, Luis, based his damage
award on incorrect and unreasonable assumptions. Because we
reverse the judgment, we need not consider this argument
further.
2. Love’s declaration
Vineburn argues Love’s declaration raises a triable issue of
material fact as to the amount of damages. Because we reverse
the judgment based on the summary adjudication of plaintiffs’
causes of action, we need not consider whether there are disputed
issues of material fact regarding the amount of damages.
3. Exclusion of evidence of alleged use of 1,4-
dioxane contamination on the Farivar Property
Vineburn argues the trial court erred in excluding evidence
of the historical use of 1,4-Dioxane on the Farivar Property. We
need not consider this argument because we have concluded for
49
other reasons that the trial court erred in summarily
adjudicating plaintiffs’ causes of action.
4. Double recovery
Vineburn argues the damage award creates a “very real
risk” of a double recovery. Because we reverse the judgment, the
argument is moot.
5. Water Board’s authority
Vineburn argues the damage award usurps the Water
Board’s authority because the Water Board may not approve the
cleanup of contamination only on the Farivar Property. Because
we reverse the judgment, this argument also is moot.
6. Prejudgment interest
Vineburn argues that the award of prejudgment interest
was improper. Our reversal of the judgment requires the
reversal of the prejudgment interest award.
7. Case specific hearsay
In addition to repeating Vineburn’s arguments, Maddux
argues the trial court erred in relying on case-specific hearsay.
Maddux did not file an opposition below and thus has not shown
it preserved this evidentiary issue for appeal. Accordingly, we
decline to consider Maddux’s evidentiary challenge.
Finally, we hold only that the trial court erred in
summarily adjudicating plaintiffs’ causes of action. We express
no opinion on the merits of plaintiffs’ claims upon a trial of those
claims.
50
DISPOSITION
The judgment is reversed. The parties shall bear their own
costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
51