CA Dept. of Toxic Substances Control v. Jim Dobbas, Inc.

• Court: District Court, E.D. California
• Decided: August 29, 2025
• Docket: 2:14-cv-00595
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 CALIFORNIA DEPARTMENT OF TOXIC No. 2:14-cv-595 WBS JDP SUBSTANCES CONTROL, and the TOXIC 13 SUBSTANCES CONTROL ACCOUNT, 14 Plaintiffs, ORDER RE: PLAINTIFFS’ MOTION FOR SUMMARY 15 v. JUDGMENT 16 JIM DOBBAS, INC., a California corporation; CONTINENTAL RAIL, 17 INC., a Delaware corporation; DAVID VAN OVER, individually, PACIFIC 18 WOOD PRESERVING, a dissolved California corporation; WEST COAST 19 WOOD PRESERVING, LLC; a Nevada limited liability company; and 20 COLLINS & AIKMAN PRODUCTS, LLC, a Delaware limited liability company, 21 Defendants, 22 and 23 THE CONTINENTAL INSURANCE COMPANY, 24 CENTURY INDEMNITY COMPANY, ALLIANZ UNDERWRITERS INSURANCE COMPANY, 25 CHICAGO INSURANCE COMPANY, FIREMAN’S FUND INSURANCE COMPANY, 26 and THE TRAVELERS INDEMNITY COMPANY, 27 Defendant-Intervenors. 28 1 ----oo0oo---- 2 Plaintiffs the California Department of Toxic 3 Substances Control and the Toxic Substances Control Account 4 (collectively, “plaintiffs”) move for partial summary judgment on 5 the liability of defendant Collins & Aikman Products, LLC 6 (“Collins & Aikman Products”), as the insured of defendant- 7 intervenors the Continental Insurance Company, Century Indemnity 8 Company, Allianz Underwriters Insurance Company, Chicago 9 Insurance Company, Fireman’s Fund Insurance Company, and the 10 Travelers Indemnity Company (collectively, “intervenors”). 11 (Docket No. 300.)1 12 Plaintiffs seek to recover costs for responding to an 13 alleged release of hazardous chemicals at a former wood treatment 14 site in Elmira, California (“the Elmira site”), as well as a 15 declaratory judgment that Collins & Aikman Products is liable for 16 such costs, via their first and second claims under the 17 Comprehensive Environmental Response, Compensation, and Liability 18 Act (“CERCLA”). (See Docket No. 77 at ¶¶ 37-45 (citing 42 U.S.C. 19 §§ 9607(a), 9613(g)(2)).) 20 Before selling the Elmira site to former defendant Jim 21 Dobbas, Inc. (“Dobbas”), Wickes Corporation owned and operated 22 it. (See Decl. of McKinley Lewis, Jr. (“Lewis Decl.”) Exs. C-D, 23 F (Docket Nos. 300-4, 300-5).) On January 18, 1985, Wickes 24 Corporation rebranded as Wickes Companies, Inc. (See Declaration

25 1 At the conclusion of the hearing on the motion on July 7, 2025, the court called for additional briefing. Having read 26 and considered the supplemental briefs, the court now decides the 27 motion on the papers, without the need for additional oral argument. See L.R. 230(g). The scheduled September 2, 2025 28 hearing on the motion is hereby VACATED. 1 of James Potter (“Potter Decl.”) Exs. A-B (Docket No. 311-2).)2 2 Wickes Companies, Inc. renamed itself Collins & Aikman Group, 3 Inc., on July 15, 1992. (See id. Ex. C.) On July 13, 1994, 4 Collins & Aikman Group, Inc. merged into Collins & Aikman 5 Products Co. (See id. Exs. E-F.) Collins & Aikman Products Co. 6 became Collins & Aikman Products on December 31, 2007. (See id. 7 Exs. G-H.) 8 Despite its awareness of the alleged contamination, 9 Dobbas purchased the Elmira site from Collins & Aikman Products 10 Co., while Collins & Aikman Products Co. agreed to continue 11 environmental remediation there. (See Lewis Decl. Ex. F (Docket 12 No. 300-5).)3 13 I. Standard 14 Summary judgment is proper “if the movant shows that 15 there is no genuine dispute as to any material fact and the 16 movant is entitled to judgment as a matter of law.” See Fed. R. 17 Civ. P. 56(a). A party may move for summary judgment either for 18 one or more claims or defenses, or for portions thereof. See id. 19 A material fact is one “that might affect the outcome of the suit 20 under the governing law,” and a genuine issue is one that could

21 2 The court GRANTS plaintiffs’ request for judicial 22 notice (Docket No. 311-1) only as it pertains to Exhibits A-C and E-H of the Potter Declaration because the specified exhibits are 23 “public records.” See Cal. Ins. Co. v. Lara, 547 F. Supp. 3d 908, 914-15 & n.3 (E.D. Cal. 2021) (Shubb, J.) (citing Harris v. 24 County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. (2012)), aff’d on other grounds sub nom. Applied Underwriters, Inc. v. Lara, 37 25 F.4th 579, 585, 599-600 (9th Cir. 2023), cert. denied, 143 S. Ct. 748 (2023). 26

27 3 On November 16, 2015, the court dismissed Dobbas from the case after it settled with plaintiffs. (See Docket No. 149 28 at 11-12.) 1 permit a reasonable trier of fact to enter a verdict in the non- 2 moving party’s favor. See Anderson v. Liberty Lobby, Inc., 477 3 U.S. 242, 248 (1986). 4 The moving party bears the initial burden of 5 establishing the absence of a genuine issue of material fact. 6 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 7 However, “the underlying facts must be viewed in the light most 8 favorable to the non-moving party.” Matsushita Elec. Indus. Co. 9 v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citation 10 modified). 11 II. Admissibility 12 Intervenors objected to plaintiffs’ reliance on three 13 cases from other courts which, according to plaintiffs, found 14 that Collins & Aikman Products was a successor in interest to the 15 Wickes Corporation. See Herbolsheimer v. Collins & Aikman 16 Prods., Inc., No. 224679, 2001 WL 1545893, at *1-2 (Mich. Ct. 17 App. Nov. 30, 2001) (per curiam); Arevalo v. Saginaw Machine 18 Sys., Inc., 344 N.J. Super. 490, 492-504 (App. Div. 2001); Ramos 19 v. Collins & Aikman Grp., 977 F. Supp. 537, 537-40 (D. Mass. 20 1997). However, the court need not address the question of 21 whether it may apply either the doctrine of collateral estoppel 22 or res judicata to compel the same conclusion here because it 23 makes its own determination on the liability of Collins & Aikman 24 Products based on the record before the court in this action. 25 Intervenors raised 46 other objections to two 26 declarations and one request for judicial notice submitted by 27 plaintiffs on the grounds of lack of foundation, lack of personal 28 knowledge, lack of authentication, and inadmissible hearsay. 1 (See Docket No. 304-2 at 2-35.) 2 “This court has previously explained the 3 inapplicability of many of these forms of objections at summary 4 judgment. A court can award summary judgment only when there is 5 no genuine dispute of material fact.” Cal. Sportfishing Prot. 6 All. v. Allison, No. 2:20-cv-2482 WBS AC, 2022 WL 3718253, at *2- 7 3 (E.D. Cal. Aug. 29, 2022) (citation modified) (citing Burch v. 8 Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1118-21 (E.D. 9 Cal. 2006) (Shubb, J.)). “Statements based on improper legal 10 conclusions or without personal knowledge are not facts and can 11 only be considered as arguments, not as facts, on a motion for 12 summary judgment. Instead of challenging the admissibility of 13 this evidence, lawyers should challenge its sufficiency.” Id. 14 (citation modified). 15 “Similarly, at the summary judgment stage, the court 16 does not ‘focus on the admissibility of the evidence’s form,’ but 17 rather ‘focuses on the admissibility of its contents.’” Id. 18 (citation modified) (quoting Fraser v. Goodale, 342 F.3d 1032, 19 1036 (9th Cir. 2003)). “Objections on the basis of a failure to 20 comply with the technicalities of authentication requirements 21 are, therefore, inappropriate. On summary judgment, 22 unauthenticated documents may be considered where it is apparent 23 that they are capable of being reduced to admissible evidence at 24 trial.” Id. (citation modified). 25 “The same is true for hearsay.” Id. “If the contents 26 of a document can be presented in a form admissible at trial -- 27 for example, through live testimony by the author of the document 28 -- the fact that the document itself is excludable hearsay 1 provides no basis for refusing to consider it on summary 2 judgment.” Id. (citation modified) (quoting Sandoval v. County 3 of San Diego, 985 F.3d 657, 665-67 (9th Cir. 2021)). 4 Each ground for intervenors’ objections presents only 5 curable issues were the matter to proceed to trial. See Lewis v. 6 Russell, No. 2:03-cv-2646 WBS CKD, 2012 WL 4747172, at *2-3 & n.1 7 (E.D. Cal. Oct. 3, 2012). For instance, plaintiffs may 8 authenticate the challenged evidence which they seek to introduce 9 at trial or lay a foundation for doing so. See Sportfishing, 10 2022 WL 3718253, at *2-3. Similarly, plaintiffs may call 11 witnesses with personal knowledge to avoid introducing hearsay. 12 See id. 13 This principle of disfavoring evidentiary objections at 14 summary judgment holds true in CERCLA suits. See, e.g., City of 15 Lincoln v. County of Placer, 668 F. Supp. 3d 1079, 1086-87 (E.D. 16 Cal. 2023) (Mueller, J.); City of Lincoln v. United States, 17 No. 2:16-cv-1164 KJM AC, 2020 WL 5107613, at *4-5 & nn.4-5 (E.D. 18 Cal. Aug. 31, 2020); Lewis, 2012 WL 4747172, at *2-3 & n.1; 19 United States v. Iron Mountain Mines, 724 F. Supp. 2d 1086, 1093- 20 94 & n.2 (E.D. Cal. 2010) (Mendez, J.) (overruling evidentiary 21 objections in CERCLA suit via footnote). Thus, intervenors’ 22 objections “are superfluous” and are all OVERRULED. See 23 Sportfishing, 2022 WL 3718253, at *2-3. 24 III. Controlling Law 25 “CERCLA imposes ‘strict liability for environmental 26 contamination.’” Cal. Dep’t of Toxic Substances Control v. 27 Hearthside Residential Corp., 613 F.3d 910, 912 (9th Cir. 2010) 28 (quoting Burlington N. & Santa Fe Ry. Co. v. United States, 556 1 U.S. 599, 608 (2009)). “CERCLA liability is joint and several, 2 meaning that a responsible party may be held liable for the 3 entire cost of cleanup even where other parties contributed to 4 the contamination.” Id. 5 By enacting CERCLA, “Congress has allocated the burden 6 of disproving causation to the defendant who profited from the 7 generation and inexpensive disposal of hazardous waste.” 8 Pakootas v. Teck Cominco Metals, Ltd. (Pakootas II), 905 F.3d 9 565, 591 (9th Cir. 2018) (citation modified). “Under CERCLA’s 10 burden-shifting procedures, once plaintiffs establish their prima 11 facie case for response costs, the burden shifts to defendant.” 12 United States v. W.R. Grace & Co., 429 F.3d 1224, 1232 & n.13 13 (9th Cir. 2005) (citation modified). 14 The elements of a government entity’s claim under 15 § 9607(a) are (1) that the site of the contamination is a 16 “facility” under 42 U.S.C. § 9601(9), (2) where a “release” or 17 “threatened release” of a “hazardous substance” occurred, (3) 18 which caused plaintiffs to respond and incur costs which were 19 “necessary” and “consistent with the national contingency plan,” 20 and (4) defendant falls into one of four categories of persons 21 subject to liability under the statute. See United States v. 22 Chapman, 146 F.3d 1166, 1169 (9th Cir. 1998). 23 IV. Discussion 24 First, a “facility” is “any site or area where a 25 hazardous substance has been deposited, stored, disposed of, or 26 placed, or otherwise come to be located” under CERCLA. See 27 Pakootas v. Teck Cominco Metals, Ltd. (Pakootas I), 452 F.3d 28 1066, 1073-74 (9th Cir. 2006) (quoting 42 U.S.C. § 9601(9)(b)). 1 Plaintiffs have shown that several hazardous substances, such as 2 arsenic, chromium, and copper, have contaminated the Elmira site 3 for almost fifty years. (See Lewis Decl. Exs. C-E, G (Docket 4 Nos. 300-5 to 300-6).) Thus, the Elmira site is a CERCLA 5 facility. See 42 U.S.C. § 9601(9)(b). 6 Second, a “release” means “any spilling, leaking, 7 pumping, pouring, emitting, emptying, discharging, injecting, 8 escaping, leaching, dumping, or disposing into the environment” 9 for purposes of CERCLA. See Chapman, 146 F.3d at 1169-70 & n.1 10 (quoting 42 U.S.C. § 9601(22)). The term “‘environment’ includes 11 ground water, drinking water supply, land surface or subsurface 12 strata, or ambient air under the jurisdiction of the United 13 States.” See Pakootas I, 452 F.3d at 1076-77 (citation modified) 14 (quoting 42 U.S.C. § 9601(8)). Plaintiffs have demonstrated that 15 hazardous substances contaminated the Elmira site’s soil. (See, 16 e.g., Decl. of Maxine Cottrell (“Cottrell Decl.”) Exs. A, C 17 (Docket No. 300-4).) Therefore, a release of hazardous 18 substances occurred at the Elmira site. See 42 U.S.C. 19 §§ 9601(8), (22). 20 Third, CERCLA defines “‘respond’ or ‘response’ to mean 21 remove, removal, remedy, and remedial action.” See Chapman, 146 22 F.3d at 1174 & n.9 (citation modified) (quoting 42 U.S.C. 23 § 9601(25)). In addition, the statute clarifies that “‘remove’ 24 or ‘removal’” includes “the cleanup of released hazardous 25 substances from the environment,” as well as “the taking of such 26 other actions as may be necessary to prevent, minimize, or 27 mitigate damage to the public health or welfare or to the 28 environment, which may otherwise result from a release or threat 1 of release” of hazardous substances. See Pakootas II, 905 F.3d 2 at 578-79 & n.10 (citation modified) (quoting 42 U.S.C. 3 § 9601(23)). 4 As for “remedy” or “remedial action,” CERCLA equates 5 them with actions “taken instead of or in addition to removal 6 actions in the event of a release or threatened release of a 7 hazardous substance into the environment, to prevent or minimize 8 the release of hazardous substances so that they do not migrate 9 to cause substantial danger.” See W.R. Grace, 429 F.3d at 1228- 10 29 & n.6 (citation modified) (quoting 42 U.S.C. § 9601(24)). 11 Plaintiffs have established that they responded to the release of 12 hazardous substances at the Elmira site and incurred costs by 13 monitoring the groundwater’s levels of heavy metals and 14 excavating contaminated soil. (See, e.g., Lewis Decl. Exs. G, I- 15 P (Docket Nos. 300-6 to 300-7, 300-9 to 300-12).) 16 Finally, “the owner and operator of a vessel or 17 facility” or “any person who at the time of disposal of any 18 hazardous substance owned or operated any facility at which such 19 hazardous substances were disposed of” is liable under CERCLA as 20 a responsible party. See, e.g., 42 U.S.C. §§ 9607(a)(1)-(2); 21 Hearthside Residential, 613 F.3d at 912-15. In analyzing the 22 “owner and operator” language, the Ninth Circuit stated that 23 “ownership is measured at the time of cleanup.” See Hearthside 24 Residential, 613 F.3d at 914-15. 25 Intervenors’ concede that Collins & Aikman Products 26 “was a current owner of the site.” (See Docket No. 310 at 17- 27 28 1 18.)4 Their admission lines up with the Ninth Circuit’s 2 assertion in this case that Collins & Aikman Products was an 3 “owner of the property during the relevant time.” See Cal. Dep’t 4 of Toxic Substances Control v. Jim Dobbas, Inc., 54 F.4th 1078, 5 1082-83 (9th Cir. 2022).5 This confirms that Collins & Aikman 6 Products qualifies as an “owner and operator” and “a responsible 7 party” under CERCLA. See Hearthside Residential, 613 F.3d at 8 912-15 (quoting 42 U.S.C. § 9607(a)).6 9 Intervenors take the position that “whether Collins & 10 Aikman Products qualifies as a ‘current owner’ under Hearthside 11 is entirely independent of, and has no connection with, whether 12 Collins & Aikman Products is a ‘responsible party’ for purposes 13 of CERCLA liability.” (See Docket No. 310 at 17-18.) However, 14 intervenors misread Hearthside using a distinction without a 15 difference. See 613 F.3d at 912-13 (quoting 42 U.S.C. 16 § 9607(a)). In Hearthside, the Ninth Circuit explained that “at 17 issue here is one type of potentially responsible party: ‘the 18

19 4 “In the instant case, intervenors are not contesting whether Collins & Aikman Products was a current owner of the 20 site, which is all that Hearthside found. However, intervenors instead dispute C&A Products’ liability for response costs 21 despite such status.” (See Docket No. 310 at 17-18 (citation 22 modified).)

23 5 “A former owner of the property during the relevant time but missing from the suit was a defunct Delaware limited 24 liability company, Collins & Aikman Products.” See Jim Dobbas, 54 F.4th at 1082-83. 25

26 6 “At issue here is one type of potentially responsible party: the owner and operator of a vessel or a facility. We 27 interpret this category to refer to current owners or operators.” See Hearthside Residential, 613 F.3d at 912-13 (citation 28 modified). I II IE IEE EEE NO IN OI EERIE IRE IEE eee

1 owner and operator of a vessel or facility.’ We interpret this 2 | category to refer to ‘current’ owners or operators.” See id. 3 Thus, a “current owner,” such as Collins & Aikman Products, 1s 4 but one kind of “responsible party” under CERCLA. See id. 5 Intervenors do not disprove any elements of plaintiffs’ 6 | prima facie showing of Collins & Aikman Products’ CERCLA 7 liability. (See, e.g., Docket Nos. 304, 310.) Nor do 8 intervenors attempt to introduce any new evidence to create a 9 single dispute of material fact. See Fed. R. Civ. P. 56(a). 10 | Accordingly, plaintiffs having established their prima facie case 11 for response costs, Collins & Aikman Products has failed to 12 satisfy its obligation of disproving causation, despite 13 intervenors’ assistance. See, e.g., Pakootas II, 905 F.3d at 14 591; W.R. Grace, 492 F.3d at 1232 €& n.13. 15 IT IS THERFORE ORDERED that plaintiffs’ motion for 16 | partial summary judgment on the issue of Collins & Aikman 17 Products’ liability on their first CERCLA claim under 42 U.S.C. 18 $ 9607(a) (Docket No. 300) be, and the same hereby is, GRANTED; 19 and JUDGMENT SHALL BE ENTERED declaring that Collins & Aikman 20 Products is jointly and severally liable for future response 21 costs which plaintiffs may incur at the Elmira site on their 22 second CERCLA claim under 42 U.S.C. § 9613(g) (2). 23 | Dated: August 28, 2025 Lyd ak. 2 24 WILLIAMB.SHUBB 25 UNITED STATES DISTRICT JUDGE 26 27 28 11