NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ESTATE OF BETTY GOLDBERG, No. 16-56297 DECEASED, by and through their successor in interest, Daniel Rubin; ESTATE OF AL D.C. No. GOLDBERG, DECEASED, by and through 5:14-cv-01872-DSF-AFM their successor in interest, Daniel Rubin,
Plaintiffs-counter- MEMORANDUM* defendants-Appellants,
v.
GOSS-JEWETT COMPANY, INC., AKA Tri-County Sales, Inc.; et al.,
Defendants-cross- defendants-Appellees,
ESTATE OF ROBERT W. SCHACK, Deceased; et al.,
Defendants-cross-claimants- Appellees,
VIGILANT INSURANCE COMPANY; et al.,
Intervenors-Appellees,
DONALD J. GEORGE,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-counter-claimant- Appellee,
PACIFIC ENGINEERING ASSOCIATES, INC.,
Third-party-defendant- counter-claimant-Appellee,
CLAY SCOTT BRADFIELD,
Third-party-defendant- cross-claimant-Appellee,
ST. PAUL CLEANERS & LAUNDRY, INC.; et al.,
Third-party-defendant- Appellees.
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted March 7, 2018 Pasadena, California
Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,** Chief District Judge.
** The Honorable Dana L. Christensen, Chief United States District Judge for the District of Montana, sitting by designation.
2 The Estates of Betty and Al Goldberg, through Daniel Rubin, appeal the
district court’s orders dismissing some of their claims and granting summary
judgment on the remainder. The claims were brought under California and federal
law against Defendants for allegedly contaminating the Goldbergs’ property with
toxic dry-cleaning fluid. We affirm in part, reverse in part, and remand.
1. The district court properly dismissed the claims for waste, negligence,
ultrahazardous activity, unfair competition, and breach of lease as barred by the
statutes of limitations. The complaint recognizes that these claims arose by 1994
and tries to assert eligibility for equitable tolling. But even liberally construed the
complaint does not “adequately allege[] facts showing the potential applicability of
the equitable tolling doctrine.” Cervantes v. City of San Diego, 5 F.3d 1273, 1277
(9th Cir. 1993) (emphasis in original). The 17-year pendency of the Goldbergs’
1994 lawsuit could warrant equitable tolling only if that prior case was erroneously
dismissed. See Wood v. Elling Corp., 572 P.2d 755, 759 (Cal. 1977). But the
complaint merely pleads a “conclusory allegation[] of law” that the action was
erroneously dismissed. Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d
806, 812 (9th Cir. 2010). Nor are there any factual allegations to invoke the
“continuing violation” doctrine. See LaSalvia v. United Dairymen of Arizona, 804
F.2d 1113, 1118 (9th Cir. 1986) (emphasis added). The record shows that
amendment would be futile because the 1994 action was properly dismissed for
3 failure to prosecute.
2. The district court committed a harmless error when it dismissed the
trespass claim as barred by laches. See 28 U.S.C. § 2111. California case law
suggests that laches can bar a trespass claim. See Pac. Hills Homeowners Ass’n v.
Prun, 73 Cal. Rptr. 3d 653, 658 (Cal. Ct. App. 2008). The district court purported
to apply laches here based on “judicially noticeable facts” that it found in
dismissing the 1994 action. That was in error; the court could not take judicial
notice of its prior order “for the truth of the facts recited therein.” See Lee v. City
of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). However, this error was
harmless because the district court effectively treated the motions to dismiss as
motions for summary judgment. See Fed. R. Civ. P. 12(d). Defendants’ motions
relied on their prior submissions of evidence, putting the Goldberg Estates on
notice that the court would look beyond the pleadings. See Olsen v. Idaho State
Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). And the prior proceeding on
dismissing the 1994 action presented a “reasonable opportunity” for the Goldberg
Estates to marshal their best evidence to justify their delay and rebut Defendants’
claims of prejudice. Fed. R. Civ. P. 12(d). Viewing the motions to dismiss as
having been converted to summary judgment motions once Defendants’ evidence
was considered, there was no genuine issue of material fact to preclude dismissal
of the trespass claim because of laches. See Fed. R. Civ. P. 56.
4 3. The district court erred in dismissing the public nuisance claim as barred
by laches. Several California courts have held that when environmental harm to
the public is alleged, as it is here, laches cannot bar a public nuisance claim. See,
e.g., Wade v. Campbell, 19 Cal. Rptr. 173, 177 (Cal. Ct. App. 1962); City of
Turlock v. Bristow, 284 P. 962, 965 (Cal. Ct. App. 1930). But these cases do not
speak to private nuisance claims, so the private nuisance claim was properly
dismissed.
4. The district court abused its discretion in dismissing the RCRA citizen
suit claim as barred by laches. Laches is “strongly disfavored in environmental
cases.” Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025, 1031 (9th Cir.
2012). Three factors support this presumption against the equitable defense of
laches here. First, it makes little sense to say that a private attorney general “sleeps
on his rights” when those rights belong to the public. Id. The pollution at issue
endangers the health of people living next door to the property and threatens to
contaminate a nearby creek, harming “the public at-large, and not just the
plaintiffs.” Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 555 (9th Cir.
2006). Second, it would be unfair to the public and disregard its interests to
dismiss this citizen suit simply because it was filed by the dilatory Goldberg
Estates rather than by another plaintiff, such as the property’s new owner, 220 W.
Gutierrez, LLC, or a new neighbor living near the property. See Jarrow Formulas,
5 Inc. v. Nutrition Now, Inc., 304 F.3d 829, 840 (9th Cir. 2002) (“[T]he public good
is of paramount importance when considering the equitable defense of laches.”
(emphasis in original) (citation omitted)). Anyone presently injured by the toxic
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ESTATE OF BETTY GOLDBERG, No. 16-56297 DECEASED, by and through their successor in interest, Daniel Rubin; ESTATE OF AL D.C. No. GOLDBERG, DECEASED, by and through 5:14-cv-01872-DSF-AFM their successor in interest, Daniel Rubin,
Plaintiffs-counter- MEMORANDUM* defendants-Appellants,
v.
GOSS-JEWETT COMPANY, INC., AKA Tri-County Sales, Inc.; et al.,
Defendants-cross- defendants-Appellees,
ESTATE OF ROBERT W. SCHACK, Deceased; et al.,
Defendants-cross-claimants- Appellees,
VIGILANT INSURANCE COMPANY; et al.,
Intervenors-Appellees,
DONALD J. GEORGE,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-counter-claimant- Appellee,
PACIFIC ENGINEERING ASSOCIATES, INC.,
Third-party-defendant- counter-claimant-Appellee,
CLAY SCOTT BRADFIELD,
Third-party-defendant- cross-claimant-Appellee,
ST. PAUL CLEANERS & LAUNDRY, INC.; et al.,
Third-party-defendant- Appellees.
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted March 7, 2018 Pasadena, California
Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,** Chief District Judge.
** The Honorable Dana L. Christensen, Chief United States District Judge for the District of Montana, sitting by designation.
2 The Estates of Betty and Al Goldberg, through Daniel Rubin, appeal the
district court’s orders dismissing some of their claims and granting summary
judgment on the remainder. The claims were brought under California and federal
law against Defendants for allegedly contaminating the Goldbergs’ property with
toxic dry-cleaning fluid. We affirm in part, reverse in part, and remand.
1. The district court properly dismissed the claims for waste, negligence,
ultrahazardous activity, unfair competition, and breach of lease as barred by the
statutes of limitations. The complaint recognizes that these claims arose by 1994
and tries to assert eligibility for equitable tolling. But even liberally construed the
complaint does not “adequately allege[] facts showing the potential applicability of
the equitable tolling doctrine.” Cervantes v. City of San Diego, 5 F.3d 1273, 1277
(9th Cir. 1993) (emphasis in original). The 17-year pendency of the Goldbergs’
1994 lawsuit could warrant equitable tolling only if that prior case was erroneously
dismissed. See Wood v. Elling Corp., 572 P.2d 755, 759 (Cal. 1977). But the
complaint merely pleads a “conclusory allegation[] of law” that the action was
erroneously dismissed. Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d
806, 812 (9th Cir. 2010). Nor are there any factual allegations to invoke the
“continuing violation” doctrine. See LaSalvia v. United Dairymen of Arizona, 804
F.2d 1113, 1118 (9th Cir. 1986) (emphasis added). The record shows that
amendment would be futile because the 1994 action was properly dismissed for
3 failure to prosecute.
2. The district court committed a harmless error when it dismissed the
trespass claim as barred by laches. See 28 U.S.C. § 2111. California case law
suggests that laches can bar a trespass claim. See Pac. Hills Homeowners Ass’n v.
Prun, 73 Cal. Rptr. 3d 653, 658 (Cal. Ct. App. 2008). The district court purported
to apply laches here based on “judicially noticeable facts” that it found in
dismissing the 1994 action. That was in error; the court could not take judicial
notice of its prior order “for the truth of the facts recited therein.” See Lee v. City
of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). However, this error was
harmless because the district court effectively treated the motions to dismiss as
motions for summary judgment. See Fed. R. Civ. P. 12(d). Defendants’ motions
relied on their prior submissions of evidence, putting the Goldberg Estates on
notice that the court would look beyond the pleadings. See Olsen v. Idaho State
Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). And the prior proceeding on
dismissing the 1994 action presented a “reasonable opportunity” for the Goldberg
Estates to marshal their best evidence to justify their delay and rebut Defendants’
claims of prejudice. Fed. R. Civ. P. 12(d). Viewing the motions to dismiss as
having been converted to summary judgment motions once Defendants’ evidence
was considered, there was no genuine issue of material fact to preclude dismissal
of the trespass claim because of laches. See Fed. R. Civ. P. 56.
4 3. The district court erred in dismissing the public nuisance claim as barred
by laches. Several California courts have held that when environmental harm to
the public is alleged, as it is here, laches cannot bar a public nuisance claim. See,
e.g., Wade v. Campbell, 19 Cal. Rptr. 173, 177 (Cal. Ct. App. 1962); City of
Turlock v. Bristow, 284 P. 962, 965 (Cal. Ct. App. 1930). But these cases do not
speak to private nuisance claims, so the private nuisance claim was properly
dismissed.
4. The district court abused its discretion in dismissing the RCRA citizen
suit claim as barred by laches. Laches is “strongly disfavored in environmental
cases.” Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025, 1031 (9th Cir.
2012). Three factors support this presumption against the equitable defense of
laches here. First, it makes little sense to say that a private attorney general “sleeps
on his rights” when those rights belong to the public. Id. The pollution at issue
endangers the health of people living next door to the property and threatens to
contaminate a nearby creek, harming “the public at-large, and not just the
plaintiffs.” Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 555 (9th Cir.
2006). Second, it would be unfair to the public and disregard its interests to
dismiss this citizen suit simply because it was filed by the dilatory Goldberg
Estates rather than by another plaintiff, such as the property’s new owner, 220 W.
Gutierrez, LLC, or a new neighbor living near the property. See Jarrow Formulas,
5 Inc. v. Nutrition Now, Inc., 304 F.3d 829, 840 (9th Cir. 2002) (“[T]he public good
is of paramount importance when considering the equitable defense of laches.”
(emphasis in original) (citation omitted)). Anyone presently injured by the toxic
chemicals emanating from the property could have brought this exact same claim
against Defendants. See 42 U.S.C. 6972(a). Third, maintaining this RCRA claim
would advance the congressional policy of abating threats to human health and the
environment. See id. § 6902(b). “The use of laches should be restricted to avoid
defeat of Congress’ environmental policy.” Save the Peaks, 669 F.3d at 1031
(citation omitted). So although the Goldberg Estates’ personal trespass claim is
barred by their 17-year delay and the resulting prejudice to Defendants, the
equitable considerations operate differently in the context of the RCRA claim.
These facts are not so extreme as to give rise to one of the “rare cases” in which
the presumption against laches barring a RCRA citizen suit is overcome.
Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1381 (9th Cir.
1998). On remand, the district court should determine whether summary judgment
is appropriate or a trial is required on the merits of this RCRA claim.
5. The district court erred in granting summary judgment on the claims for
response costs and declaratory relief under CERCLA and the HSAA. CERCLA’s
statute of limitations requires suit “within 3 years after completion of the removal
action.” 42 U.S.C. § 9613(g)(2)(A) (emphasis added). When pollution removal is
6 incomplete, courts “have uniformly held that all ‘removal’ activities at a site
constitute a single ‘removal’ for statute of limitations purposes.” California Dep’t
of Toxic Substances Control v. Hyampom Lumber Co., 903 F. Supp. 1389, 1394
(E.D. Cal. 1995). The California Department of Toxic Substances Control’s July
2012 order found that no removal activities had been conducted “since March
1996.” Because this removal action still has not been completed, CERCLA’s
statute of limitations has not yet begun to run.
The district court also erred in concluding that the Goldberg Estates could
not obtain a declaratory judgment that Defendants are liable under CERCLA. That
statute provides that the entry of declaratory judgment as to a defendant’s liability
is mandatory. 42 U.S.C. § 9613(g)(2). “The fact that future costs are somewhat
speculative is no bar to a present declaration of liability.” Kelley v. E.I. DuPont de
Nemours & Co., 17 F.3d 836, 844 (6th Cir. 1994) (internal quotation marks and
citation omitted).
Finally, the district court erred in granting summary judgment on the HSAA
claim on the ground that the HSAA’s definition of “person” does not include
estates. The court correctly observed that the HSAA is generally interpreted the
same way as CERCLA. But even though CERCLA’s definition of “person” does
not enumerate estates, there is no dispute between the parties in this case that a
deceased individual’s estate qualifies as a “person” under CERCLA. See 42
7 U.S.C. § 9601(21). Because the parties agree that an estate is entitled to make a
CERCLA claim, we conclude that the estate qualifies to make a claim under the
HSAA as well.
6. The district court properly granted summary judgment on the claims for
contractual and equitable indemnity as barred by the statute of limitations and
laches. By statute, “the person indemnified is not entitled to recover without
payment thereof.” Cal. Civ. Code § 2778(2). The record shows that the Goldberg
Estates’ only payments were made in the 1990s; more recent payments have been
made by Daniel Rubin as trustee of the Goldberg Trust, who is not a named party
to this dispute. See Greenspan v. LADT, LLC, 121 Cal. Rptr. 3d 118, 146 (Cal. Ct.
App. 2010). Accordingly, recovery of the Goldberg Estates’ payments under a
contractual indemnity theory is barred by the statute of limitations. See Cal. Code
Civ. Proc. § 337. Recovery under a theory of equitable indemnity, like the trespass
claim, is barred by laches. See People v. Koontz, 46 P.3d 335, 366 (Cal. 2002).1
7. Appellees’ Motion to Take Judicial Notice (Dkt. 49) is GRANTED.
Appellees’ Motion to Strike Portions of Reply Brief and Further Excerpts of
Record; Alternatively, for Leave to File Response to Appellants’ Reply Brief (Dkt.
1 On remand, however, Daniel Rubin may move to join this case as a named plaintiff in his capacity as trustee of the Goldberg Trust, and may seek to reassert claims that the Goldberg Estates could not bring here. See Fed. R. Civ. P. 19(a)(1). We express no opinion whether any such motion should be granted.
8 65) is DENIED as to the motion to strike and GRANTED as to the motion for
leave to file a surreply.
Each party shall bear its own costs on appeal. See Fed. R. App. P. 39(a)(4).
AFFIRMED in part; REVERSED in part; REMANDED.