Opinion
No. A134419.
02-06-2018
CITY OF MODESTO et al., Plaintiffs and Appellants, v. THE DOW CHEMICAL COMPANY et al., Defendants and Respondents.
[Modification of opinion (19 Cal.App.5th 130; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT. — IT IS ORDERED that the opinion filed herein on January 8, 2018, be modified as follows:
1. On page nine, the first full paragraph [19 Cal.App.5th 142, advance report, 1st par., lines 1-4] is divided into two paragraphs and modified to read:
The residents of Modesto rely on groundwater wells to produce most of their potable water. The City is served by a network of 90 wells designed to serve specific neighborhoods, and operating interdependently. If a well is taken offline, nearby wells are required to pump at greater capacity and the contamination plume is likely to migrate to those wells.
PCE has been detected in four of the City's wells, and two were removed from service after exceeding the state-mandated MCL. The parties dispute whether and when the third and fourth wells (or additional wells) will exceed the MCL for PCE.
2. On page 20, the first sentence of the first paragraph under section IV.A., subheading "1. The Precise Issue on Appeal" [in nonpub. portion] is modified to read:
The judge in Phase IV concluded, based on his reading of Modesto I, that liability under the Polanco Act could be established only by proof of each link in a very specific chain of causation.
3. On page 32, the final two sentences of footnote 10 [19 Cal.App.5th 152, advance report, fn. 10, lines 13-15] are modified to read:
The language on its face requires no such direct linkage, but only proof that defendants' disposal instructions resulted in obstructing free use of property and that defendants' conduct was a substantial factor in creating that
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harm. We also note, in passing, that it does not appear any such heightened degree of proof was used when the jury applied this instruction in phase I.
4. On page 33, at the end of the first full paragraph [19 Cal.App.5th 153, advance report, 1st par., line 22], add as footnote 11, the following footnote, which will require renumbering of all subsequent
In their petition for rehearing, defendants disclaim that they ever "insisted... that causation could be proven only by direct evidence." But defendants did insist — and argued that the trial court insisted — on proof that drycleaners read, relied upon and followed defendants' instructions. "As Judge Goldsmith made clear, the evidence must show that the reason the drycleaner [disposed of the PCE waste consistent with defendants' instructions] was that she or he read and acted on ... the instruction[s]." (Italics added.) Defendants do not explain how those facts could be proven other than by direct evidence.
5. On page 37, the third sentence of the second full paragraph [19 Cal.App.5th 156, advance report, 2d full par., lines 8-11] is modified to read: Defendants contend, more precisely, it was not proven that during the years their product was provably sold at any Phase IV site, an improper disposal instruction was disseminated.
6. On pages 40-41, the first and second paragraphs following section IV.A., under the subheading "7. Conclusion" [19 Cal.App.5th 158, advance report, last par., 159, 1st and 2d pars.] are integrated and modified as follows:
Defendants argued and the trial court concluded that Modesto I set up a special proof standard under the Polanco Act, viz., that causation can be demonstrated only by proof that a specific disposal instruction was received by a drycleaner who read, relied on and followed the instruction and by that act caused the contamination, to the exclusion of any other evidence that might be relevant to prove defendants assisted in creating the pollution. This is not a fair reading of the opinion. Modesto I did not set limits on how causation was to be proven; it articulated a liability standard that required, as a threshold matter, that the provider of the product be something more than a mute, passive supplier. "[T]hose [manufacturers] who took affirmative steps directed toward the improper discharge of solvent wastes — for instance, ... by instructing users of its products to dispose of wastes improperly — may be liable under [that statute]" but those who merely placed solvents in the stream of commerce without warning about the dangers of improper disposal are not liable. (Modesto I, supra, 119 Cal.App.4th at p. 43.) That formulation does not change the causation analysis, which is, considering the evidence as a
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whole, is it more likely than not that defendants' improper instructions, and any other relevant conduct, were a substantial factor in causing the pollution. Because the trial court imposed a far more stringent proof of causation requirement in the phase IV trial, we shall vacate that portion of the judgment.
7. On page 95, after the fourth paragraph in section "V. DISPOSITION" [19 Cal.App.5th 160, advance report, 2d par.] the following paragraph is added:
The further proceedings ordered herein shall not include R.R. Street and Company.
There is no change in the judgment.
Defendants' petition for rehearing is denied.