Opinion
Civil No. 03 CV 1146-B (POR).
March 15, 2006
I. INTRODUCTION
Before the Court is Plaintiff San Diego Unified Port District's ("Port") Motion for Partial Summary Judgment/Summary Adjudication on Defendant TDY Industries, Inc.'s ("TDY") counterclaim for contribution on the grounds that TDY does not have a right to contribution from Plaintiff Port under CERCLA for TDY's remediation action taken in Convair Lagoon or contemplated for the surrounding area. Also before the Court is Third Party Defendant General Dynamics Corp.'s ("GD") Motion for Partial Summary Judgment/Summary Adjudication against Defendant and Third Party Plaintiff TDY on TDY's Third Party Complaint on the grounds that TDY's claims for Convair Lagoon are time-barred. For the reasons listed below, the Court GRANTS Plaintiff Port's Motion for Summary Adjudication and GRANTS Third Party Defendant GD's Motion for Summary Adjudication.
Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The instant case involves liability for a hazardous waste spill and subsequent remedial measures at Teledyne Ryan Aeronautical Facility ("TRA Facility"), approximately 44 acres located at 2701 N. Harbor Drive, San Diego, CA. Plaintiff Port is a government entity that owns the TRA Facility and holds it in trust for the people of the State of California. Defendants are former tenants and operators of the TRA Facility who allegedly used hazardous materials, such as polychlorinated biphenyls ("PCBs"), in the manufacture and cleaning of aviation parts and equipment. After Defendant TDY left the TRA Facility, Plaintiff hired consultants to investigate the extent of hazardous substance contamination in the soil and groundwater underneath the TRA Facility. FAC, ¶ 31 (Doc. No. 26).
The Port was created by an act of the California Legislature, known as the San Diego Unified Port District Act, 1962 Cal. Stat., ch. 76, Ist Ex. Sess., 362, § 1 (codified as amended at Cal. Harb. Nav. Code App. I). See First Amended Complaint, ¶ 6 (Doc. No. 26).
On June 9, 2003, the Port filed a lawsuit against Defendant TDY and other Defendants who formerly leased and/or operated the TRA Facility. Plaintiff Port brought the instant lawsuit pursuant to CERCLA Sections 107 and 113 and various state laws to recover costs of responding to the hazardous substances at the TRA Facility. On June 10, 2004, Plaintiff Port filed a First Amended Complaint ("FAC") which also alleged violations of CERCLA Sections 107 and 113 for the presence of hazardous waste at the TRA Facility.
Section 107 is codified at 42 U.S.C. § 9607. Section 113 is codified at 42 U.S.C. § 9613.
On June 28, 2004, Defendant TDY filed its answer to the FAC and counterclaims, alleging inter alia a contribution claim against Plaintiff Port under CERCLA Section 113(f), but not a claim under CERCLA Section 107, for the TRA Facility, Convair Lagoon, and surrounding areas. On January 24, 2005, Defendant TDY filed a Third Party Complaint against Third Party Defendants GD and San Diego County Regional Airport Authority ("Authority") also alleging inter alia a contribution claim under CERCLA Section 113(f), but not a claim under CERCLA Section 107, for the TRA Facility, Convair Lagoon, and surrounding areas.
On December 7, 2005, Third Party Defendant GD filed the instant Motion for Partial Summary Judgment/Summary Adjudication. Third Party Defendant Authority and Plaintiff Port join in the GD's Motion for Summary Adjudication. On December 12, 2005, Plaintiff Port filed its Motion for Partial Summary Judgment/Summary Adjudication. Third Party Defendants GD and Authority join in Port's motion. Defendant TDY opposed both motions for partial summary judgment. Both motions for Summary Adjudication came on for hearing on Monday, January 23, 2006, at 10:30 a.m.
III. Summary Judgment and Summary Adjudication
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c) (2005); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is "material" when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See id. at 322-23.
Once the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment by merely demonstrating "that there is some metaphysical doubt as to the material facts."See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 U.S. at 252) ("The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by `the depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" See Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).
However, all inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. Ltd., 475 U.S. at 587. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment." See Anderson, 477 U.S. at 255. The Court must determine whether evidence has been presented that would enable a reasonable jury to find for the nonmoving party. Id. at 249-252.
If the Court is unable to render summary judgment upon an entire case and finds that a trial is necessary, it shall, if practicable, grant summary adjudication for any issues as to which, standing alone, summary judgment would be appropriate.See Fed.R.Civ.P. 56(d) (2005); see also California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Thus, partial summary judgment is a mechanism through which the Court deems certain issues established before trial. Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n. 3 (9th Cir. 1981) (quoting 6Moore's Federal Practice ¶ 56.20 (3.-2) (2d ed. 1976)).
Here, Plaintiff Port argues that because there is no evidence that a CERCLA Section 106 or 107 claim, action, or a judgment has been filed against TDY for Convair Lagoon, the Court by law should enter summary adjudication against Defendant TDY on its contribution claim for the lagoon. Additionally, Third Party Defendant GD argues that because TDY's past costs for Convair Lagoon are time-barred, the Court should by law also enter summary adjudication against Defendant TDY on its lagoon claims based on the statute of limitations.
Joined by GD and Authority.
Joined by Plaintiff Port and Authority.
A. Port's Motion for Summary Adjudication
CERCLA is a federal statute that provides for recovery of costs and contribution for cleanup of hazardous substances or the threatened release of hazardous substances. See 42 U.S.C. § 9607 et seq. (2005). Here, Plaintiff Port has filed a claim pursuant to CERCLA 42 U.S.C. § 9607(a), i.e. Section 107(a), against Defendant TDY for costs Port has incurred in response to hazardous waste at the TRA Facility. In turn, TDY filed a counterclaim against Port pursuant to CERCLA Section 113(f) for contribution for the money TDY has expended and will expend to clean up hazardous waste, but TDY expanded the areas covered by its contribution claim to include Convair Lagoon and surrounding areas, in addition to the TRA Facility.
"To state a prima facie case under CERCLA, 42 U.S.C. § 9607(a), a plaintiff must allege that: (1) the waste disposal site is a `facility' within the meaning of 42 U.S.C. § 9601(9); (2) a `release' or `threatened release' of a "hazardous substance" from the facility has occurred, id. § 9607(a)(4); (3) such release or `threatened release' will require the expenditure of response costs that are `consistent with the national contingency plan,' id. §§ 9607(a)(4) and (a)(4)(B); and, [sic] (4) the defendant falls within one of four classes of persons subject to CERCLA's liability provisions, id. §§ 9607(a)(1)-(4)." Cose v. Getty Oil Co., 4 F.3d 700, 703-704 (9th Cir. 1993) (internal citations omitted).
Plaintiff Port, joined by Third Party Defendants GD and Authority, argues that because there is no evidence of a CERCLA Section 106 or Section 107 civil action or negotiated settlement with the federal government to resolve TDY's liability with respect to Convair Lagoon, TDY has no right to contribution under CERCLA Section 113(f) in view of Aviall. See Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004).
1. Aviall
In Aviall, the Texas Natural Resource Conservation Commission directed Aviall to clean up a site it had purchased from Cooper because the site contained hazardous substances in violation of state environmental laws. Id. at 163-64. Before the Commission or EPA implemented judicial or administrative proceedings to compel cleanup, Aviall voluntarily cleaned up the site and sued Cooper to recover cleanup costs.Id. at 164. In its First Amended Complaint, Aviall alleged a hybrid CERCLA claim for contribution under Section 113(f) from Cooper, who was a potentially responsible person under Section 107(a). Id.
Under CERCLA Section 113(f)(1), "[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title." 42 U.S.C. § 9613(f)(1) (2005);see also Aviall, 543 U.S. at 160. Interpreting Section 113(f)(1), the Supreme Court concluded that contribution could "only be sought subject to the specified conditions, namely, `during or following' a specified civil action" under Section 106 or 107(a). Id. at 166. As the Supreme Court observed, "[t]here is no reason why Congress would bother to specify conditions under which a person may bring a contribution claim, and at the same time allow contribution actions absent those conditions."Id. Because Aviall had never been subject to a civil action under CERCLA Section 106 or 107(a) for the site in question, Aviall could not maintain its Section 113(f)(1) claim for contribution.
2. Application of Aviall to Port's Motion for Summary Adjudication
Plaintiff Port asserted a CERCLA Section 107(a) claim against Defendant TDY for the cleanup of the TRA Facility. See FAC, ¶ 36. In response, TDY asserted a CERCLA counterclaim against Port and a CERCLA third party claim against GD and Authority for contribution, solely under Section 113(f), for the TRA Facility, Convair Lagoon, and surrounding areas.
As the Supreme Court noted in Aviall, there are two ways to get contribution under Section 113(f): under 113(f)(1) (during or following civil actions under Section 106 or 107(a)) and under 113(f)(3)(B) (after an administrative or judicially approved settlement that resolves liability to the United States or to a State). Aviall, 543 U.S. at 167. Like the Plaintiff in Aviall who voluntarily cleaned up a hazardous site, TDY voluntarily responded to hazardous substances at a site by installing a sand-cap at Convair Lagoon in response to a Cleanup and Abatement Order by the Regional Water Quality Control Board, i.e., a state administrative order. Here, as in Aviall, there is no evidence of an administrative or judicially approved settlement against TDY pursuant to CERCLA Section 113(f)(3)(B) for Convair Lagoon or the surrounding areas. Therefore, unless TDY has been subject to civil actions under Sections 106 or 107(a) for Convair Lagoon and the surrounding areas, TDY's claim for contribution under CERCLA Section 113(f) must fail. See Aviall, 543 U.S. at 166.
The sand-cap was installed to isolate PCB contamination in Convair Lagoon and provide a suitable habitat for marine life that might live in the sand-cap.
The order was issued pursuant to state law, not pursuant to CERCLA.
Plaintiff Port argues that its CERCLA Section 107(a) claim against TDY covers solely the TRA Facility and that, like the Plaintiff in Aviall, TDY has not been subject to a CERCLA civil action under Section 106 or 107(a) for cleanup of Convair Lagoon or the surrounding areas. TDY contends that it is in compliance with Aviall because the Port's CERCLA Section 107(a) claim against it covers Convair Lagoon. TDY reaches this conclusion by arguing that the lagoon is part of the same facility that is covered in Port's FAC because the TRA Facility drains hazardous substances into the lagoon via a storm water conveyance system.
TDY further asserts that because Port's Prayer for Relief seeks costs and damages for the "investigation . . . and mitigation of pollutants and contaminants at and from the Site[,]" Port's FAC covers pollution at Convair Lagoon. FAC, 21-22 (Doc. No. 26). However, the proper inquiry is not whether Port's FAC generally covers Convair Lagoon and surrounding areas but whether Port's CERCLA Section 107(a) claim in the FAC covers Convair Lagoon and surrounding areas. A plain reading of Port's CERCLA Section 107(a) claim leads the Court to conclude that the TRA Facility is the sole site covered by the Port's CERCLA Section 107(a) claim, not Convair Lagoon or the surrounding areas.
FAC, First Cause of Action, ¶¶ 36-46.
For example, in its First Cause of Action, Port clearly states that its CERCLA Section 107(a) claim covers "the Site." FAC, ¶ 37 (Doc. No. 26). The "Site" refers to the TRA Facility, approximately 44 acres, located at 2701 North Harbor Drive in San Diego, California. FAC, ¶¶ 2, 20-21. The "Site" does not refer to a body of water, much less the Convair Lagoon.
Port's CERCLA Section 107(a) claim further states that the "Site" is a "facility" within the meaning of CERCLA Section 101(9). Id. at ¶ 37. Although Section 101(9) lists various things that can constitute a "facility" within the meaning of CERCLA, Plaintiff Port chose to limit its CERCLA cause of action to the TRA Facility.
The term `facility' means (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.
42 U.S.C. 9601(9) (2005).
Port's CERCLA Section 107(a) claim further alleges that Defendants are "owner[s] or operator[s]" of the "Site." Id. at ¶ 41. The fact that there is evidence that Defendants owned or operated the TRA Facility but no evidence that they owned or operated Convair Lagoon further demonstrates that the "Site" only refers to the TRA Facility. Moreover, the fact that Port's CERCLA Section 107(a) cause of action seeks contribution for its costs for responding to the hazardous substances at the Site while the Port's Non-CERCLA state law claims seek damages for pollution in the water or from the site supports the conclusion that the Port's CERCLA claim covers solely the TRA Facility. Id. at ¶¶ 44-45.
Most convincingly, TDY also admits that the "Site that is identified in the [Port's] complaint" is solely the TRA Facility. TDY Third Party Complaint, ¶ 8 (stating that the" Site that is identified in the complaint" is "commonly known as 2701 North Harbor Drive, San Diego, California (the `Site')." TDY lists the Convair Lagoon and other surrounding areas as separate and distinct locations from the TRA Site. Id. Therefore, even when viewing the evidence in the light most favorable to non-movant TDY, the Court finds that the Port's CERCLA Section 107(a) claim against TDY covers solely the TRA Facility.
Now that it would serve TDY's interest in view ofAviall, TDY seeks to expand the scope of the Port's CERCLA Claim by redefining the CERCLA Site in the Port's complaint to include Convair Lagoon and the surrounding areas as the same facility as the TRA site. However, the Court is reluctant to defer to a defendant's suggestion as to the scope of a CERCLA facility because a defendant may define a facility to avoid liability. See U.S. v. Atchinson, Topeka Santa Fe Railway Co., 2002 U.S. Dist Lexis 26495, at *127-28 (E.D. Cal. May 24, 2002). Instead, Plaintiff Port is the master of its complaint and will be allowed to formulate its CERCLA claim accordingly to suit its liability or potential liability as long as the claim fits within the guidelines provided by CERCLA. See Louisiana Pac. Corp. v. Beazer Materials Servs., 811 F. Supp. 1421, 1431 (E.D. Cal. 1993) ("As the master of its complaint, Louisiana-Pacific has the discretion to formulate the legal theories on which it will base its claim."). Accordingly, the Court finds that TDY cannot expand Port's CERCLA Section 107(a) claim to cover Convair Lagoon and the surrounding areas.
Aviall was decided after TDY filed its counterclaims but before it filed its Third Party Complaint.
Because TDY is not the subject of a CERCLA Section 106 or 107(a) claim for Convair Lagoon and the surrounding areas, TDY has no right of contribution under Section 113(f)(1) for Convair Lagoon and the surrounding areas against Plaintiff Port and Third Party Defendants GD and Authority under Aviall. Therefore, the Court GRANTS Plaintiff Port and Third Party Defendants GD and Authority's Joint Motion for Summary Adjudication on TDY's CERCLA Section 113(f) contribution claim for Convair Lagoon and the surrounding areas. Thus, the only CERCLA Section 113(f) counterclaim and third party claim that TDY has in the instant action are its claims based on the TRA Facility.
3. Non-CERCLA Federal Claims
TDY filed against Plaintiff Port counterclaims for declaratory relief based on a contribution claim under CERCLA Section 113(g)(2). TDY also filed against Third Party Defendants GD and Authority similar claims for declaratory relief under federal law. Because TDY does not have a right to contribution against Port, GD, and Authority for Convair Lagoon and the surrounding areas, as discussed above, TDY has no right to declaratory relief based on these improper CERCLA contribution claims. Therefore, the Court GRANTS Plaintiff Port and Third Party Defendants GD and Authority's Joint Motion for Summary Adjudication on TDY's declaratory relief claim for Convair Lagoon and the surrounding areas. Thus, the only federal declaratory relief counterclaim and third party claim that TDY has in the instant action are its claims based on the TRA Facility.
B. GD's Motion for Summary Adjudication
GD, joined by Port and Authority, alternatively contends that TDY's third party claims for the cleanup of Convair Lagoon are time-barred. TDY has filed counterclaims against Port and third party claims against GD and Authority for (1) contribution under CERCLA Section 113(f); (2) declaratory relief under CERCLA Section 113(g)(2); (3) contribution and equitable indemnification under state law; (4) continuing public nuisance under state common law; and (5) declaratory relief under California law. The statute of limitations argument for both the federal and state law claims involves a question of law, which is a proper subject for a motion for summary adjudication.
1. CERCLA Section 113(f) Claim
GD, joined by Port and Authority, alternatively contends that TDY's claims under CERCLA Section 113(f) for cleanup of Convair Lagoon are time-barred. GD argues that because TDY's CERCLA Section 113(f) contribution claims are claims for initial recovery, they are governed by the statute of limitations set forth in Section 113(g)(2). Under Section 113(g)(2), the statute of limitations is three years after completion of a removal action or six years after initiation of physical on-site construction of a remedial action for initial action for the recovery of the costs referred to in section 107. 42 U.S.C. 9613(g)(2)(A) and (B) (2005).
TDY counters that the applicable statue of limitations is that set forth in Section 113(g)(3). Under Section 113(g)(3), the statute of limitations is three years from (1) the date of judgment for recovery of costs or damages or (2) the date of an administrative order under Section 122(g)or 122(h). TDY contends that because no judgment has been entered for the instant Port complaint, the statute of limitations has yet to begin to run on TDY's CERCLA claims against Port, GD, and Authority. However, Port's complaint does not cover Convair Lagoon, as discussed above, and as such, TDY cannot demonstrate that it seeks contribution under Section 113(g)(3) for Convair Lagoon pursuant to the Port's civil action. Instead, the Court finds that Section 113(g)(2), not (g)(3), is the applicable statute of limitations.
TDY bases its CERCLA Section 113(f)(1) claim for contribution for Convair Lagoon on Section 107(a), albeit improperly underAviall as discussed above. See Answer to First Amended Complaint, ¶¶ 132, 134 (Doc. No. 28); Third Party Complaint, ¶¶ 13, 15 (Doc. No. 40). Because TDY's claim is for the recovery of costs that are based on liability under Section 107 and because Section 113(g)(2) covers the statute of limitations for costs based on Section 107, the Court finds that TDY's claim is properly characterized as an action for initial cost recovery to which Section 113(g)(2) applies.
The statute of limitations under Section 113(g)(2) depends on whether an action taken by a party is characterized as a removal action or remedial action. To the extent that the action is a removal action, the statute of limitations is three years after completion of the removal action. To the extent that the action is remedial in nature, the statute of limitations is six years after initiation of physical on-site construction of the remedial action.
Here, TDY started the installation of a sand-cap at Convair Lagoon in 1996 and completed the installation in June 1998. Because the installation of the sand-cap did not entail removal of hazardous substances at Convair Lagoon, the Court finds that this action is remedial in nature. As such, the Court finds that the statute of limitations for the sand-cap remediation expires six years after the 1996 commencement of the installation of the sand cap (i.e. expires in 2002). Because TDY filed its counterclaims against Port on June 28, 2004 and its Third Party Complaint against GD and Authority on January 24, 2005, both after the CERCLA six year statute of limitations for remedial actions, the Court finds that TDY's contribution claim for the sand-cap at Convair Lagoon is time-barred.
2. Declaratory Relief Under CERCLA Section 113(g)(2)
Because TDY's action for declaratory relief is based on Section 113(g)(2), the statute of limitations is the same as that for TDY's Section 113(f) claim. As such, TDY's declaratory relief claim for the sand-cap at Convair Lagoon is similarly time-barred, as discussed above.
3. TDY's Claim for Contribution and Equitable Indemnification under State Law
a. Contribution under State Law
Third Party Defendant GD argues that the statute of limitations is three years for statutory contribution claims made under California Health and Safety Code Section 25300 et seq. and accrues upon the issuance of the original Regional Water Quality Control Board Cleanup and Abatement order that issued in 1986.Advanced Micro Devices, Inc. v. Nat'l Semiconductor Corp., 38 F. Supp. 2d 802, 814 (N.D. Cal. 1999). Although the Court agrees that the statute of limitations is three years, the Court concludes that the statute of limitations would not only run from the date of the original cleanup and abatement order but also from the date of each amendment to the cleanup and abatement order.
Applying the statute of limitations to the instant case, the Court finds that TDY's statutory contribution claim for its costs for Convair Lagoon are limited to contribution for the three year period prior to (1) the June 28, 2004 filing date of TDY's counterclaims against Port (i.e. from to June 28, 2001 to June 28, 2004) and (2) the January 24, 2005 filing date of the Third Party Complaint against GD and Authority (i.e. from January 24, 2002 to January 24, 2005). Therefore, the Court finds in favor of GD, Authority, and Port on their motion for summary adjudication that TDY's claims for statutory contribution that are prior to June 28, 2001 for Port and prior to January 24, 2002 for GD and Authority are time-barred.
b. Equitable Indemnification under State Law
GD further argues that the statute of limitations for TDY's equitable indemnification claim is three years as measured from the date of harm to the injured person (i.e. TDY) or inquiry notice to the injured person. Davies v. Krasna, 14 Cal. 3d 502, 514 (1975); Mangini v. Aerojet Gen. Corp., 230 Cal. App. 3d 1125 (1991). However, GD's reliance on Mangini for the proposition that the statute of limitations starts on the date of inquiry notice is misplaced because Mangini only discusses inquiry notice in the context of negligence, negligence per se, and strict liability; none of these claims are applicable here.Id. at 1149. Absent a contrary statutory command, the date of payment triggers the statute of limitations period for equitable indemnity. Advanced Micro Devices, 38 F. Supp. 2d at 814. Therefore, the Court concludes that the three-year statute of limitations for equitable indemnification runs from the date of harm or date of payment.
Applying the statute of limitations to the instant case, the Court finds that TDY's equitable indemnification claim for costs for Convair Lagoon are limited to the three year period prior to (1) the June 28, 2004 filing date of TDY's counterclaims against Port (i.e. from to June 28, 2001 to June 28, 2004) and (2) the January 24, 2005 filing date of the Third Party Complaint against GD and Authority (i.e. from January 24, 2002 to January 24, 2005). Therefore, the Court finds in favor of GD, Authority, and Port on their motion for summary adjudication that TDY's claims for equitable indemnification that are prior to June 28, 2001 for Port and prior to January 24, 2002 for GD and Authority are time-barred.
4. TDY's Continuing nuisance Claim
In a continuing nuisance claim, "the injured party may bring successive actions for damages until the harm is abated but may recover damages only for the temporary injury suffered up to three years prior to the commencement of each action. FDIC v. Jackson-Shaw Partners No. 46, Ltd., 850 F. Supp. 839, 842 (N.D. Cal. 1994) (internal citations omitted). As costs for temporary injury, abatement costs do not include investigations and permanent injury. Id. at 844. Additionally, an injured party can also bring a continuing nuisance claim for loss of use, but loss of use is not at issue in the instant case.Id.
GD, Authority, and Port argue that because TDY's clean-up costs for Convair Lagoon occurred in the 1990s, these costs are time-barred. The Court finds that TDY's continuing nuisance claim for costs for Convair Lagoon are limited to abatement for the three year period prior to (1) the June 28, 2004 filing date of TDY's counterclaims against Port (i.e. from to June 28, 2001 to June 28, 2004) and (2) the January 24, 2005 filing date of the Third Party Complaint against GD and Authority (i.e. from January 24, 2002 to January 24, 2005). As such, any abatement costs for the sand-cap at Convair Lagoon that occurred in the 1990s, i.e. more than three years prior to the filing dates of both the counterclaims and third party complaint, are time-barred. Therefore, the Court finds in favor of GD, Authority, and Port on their motion for summary adjudication that TDY's claims for abatement that are prior to June 28, 2001 for Port and prior to January 24, 2002 for GD and Authority are time-barred.
5. TDY's Claim for Declaratory Relief under California Law
The statute of limitations for declaratory relief under state law is the one that corresponds to the legal or equitable action on which the declaratory relief claim is based Maguire v. Hibernia Sav. Loan Soc., 23 Cal. 2d 719, 733 (1944). Here, TDY's claim for declaratory relief is based on its claims for contribution and equitable indemnification under state law and for continuing nuisance. Therefore, the Court finds that TDY's claim for declaratory relief is subject to the same statute of limitations requirements listed above for TDY's claims for contribution, equitable indemnification, and continuing nuisance.
IV. CONCLUSION
For the reasons listed above, the Court GRANTS Plaintiff Port's Motion, joined in by GD and Authority, for Summary Adjudication of TDY's counterclaims against Port and third party complaint against GD and Authority for Convair Lagoon and surrounding areas. The Court also GRANTS GD's Motion, joined in by Port and Authority, for Summary Adjudication of TDY's counterclaims against Port and third party complaint against GD and Authority for Convair Lagoon on the grounds that (1) the federal claims for remediation work performed at Convair Lagoon by TDY are time-barred and (2) the state law claims incurred prior to June 28, 2001 for Port and prior to January 24, 2002 for GD and Authority are time-barred.
IT IS SO ORDERED.