1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SAN DIEGO UNIFIED PORT Case No.: 15-cv-578-WQH-AGS DISTRICT, a public corporation; and 12 CITY OF SAN DIEGO, a municipal ORDER 13 corporation, 14 Plaintiffs, 15 v. 16 MONSANTO COMPANY; SOLUTIA INC.; and PHARMACIA 17 CORPORATION, 18 Defendants. 19 HAYES, Judge: 20 The matter before the Court is the Motion for Summary Judgment of Affirmative 21 Defenses filed by Plaintiff San Diego Unified Port District. (ECF No. 426). 22 I. PROCEDURAL BACKGROUND1 23 On March 13, 2015, Plaintiffs San Diego Unified Port District (the “Port District”) 24 and the City of San Diego (the “City”) initiated this action by filing a Complaint. (ECF No. 25 26
27 1 The relevant factual background is set forth in the Court’s Order on Monsanto’s Motions for Summary 28 1 1). On August 3, 2015, the Port District and the City filed separate First Amended 2 Complaints against Defendants Monsanto Company, Solutia Inc., and Pharmacia 3 Corporation (collectively, “Monsanto”). (ECF Nos. 24, 25). In its First Amended 4 Complaint (“FAC”), the Port District brings claims against Monsanto for public nuisance, 5 equitable indemnity, and purpresture relating to the alleged contamination of San Diego 6 Bay (the “Bay”) from polychlorinated biphenyls (“PCBs”) manufactured by Monsanto. 7 (ECF No. 25). 8 On September 28, 2016, the Court issued an Order granting in part and denying in 9 part Monsanto’s Motion to Dismiss the Port District’s FAC. (ECF No. 81). The Court 10 granted the Motion to Dismiss the Port District’s equitable indemnity claim and denied the 11 Motion to Dismiss the Port District’s purpresture and public nuisance claims. 12 On April 14, 2017, Monsanto filed a First Amended Answer and Counterclaims. 13 (ECF No. 110). On May 12, 2017, the Port District filed a Motion to Strike Monsanto’s 14 Affirmative Defenses (ECF No. 112) and a Motion to Dismiss Monsanto’s Counterclaims 15 (ECF No. 113). On January 30, 2018, the Court issued an Order granting the Port District’s 16 Motion to Dismiss Monsanto’s Counterclaims and denying the Port District’s Motion to 17 Strike Monsanto’s Affirmative Defenses. (ECF No. 192). On April 19, 2018, the Port 18 District filed a Motion for Judgment on the Pleadings on Monsanto’s affirmative defenses. 19 (ECF No. 213). On September 6, 2018, the Court issued an Order denying the Port 20 District’s Motion for Judgment on the Pleadings. (ECF No. 253). 21 On August 2, 2019, Monsanto filed Motions for Summary Judgment against the Port 22 District on the Port District’s request for an abatement remedy (ECF No. 422), the Port 23 District’s purpresture claim (ECF No. 423), and the Port District’s public nuisance claim 24 (ECF No. 424). On August 2, 2019, the Port District filed a Motion for Summary Judgment 25 of Affirmative Defenses. (ECF No. 426). The Port District moves for partial summary 26 judgment against Monsanto on several of the affirmative defenses asserted by Monsanto 27 in its First Amended Answer. On October 1, 2019, Monsanto filed an Opposition to the 28 1 Port District’s Motion for Summary Judgment. (ECF No. 449). On October 18, 2019, the 2 Port District filed a Reply. (ECF No. 455). 3 On December 6, 2019, the Court heard oral argument on the Motions for Summary 4 Judgment. 5 II. CONTENTIONS 6 The Port District moves for summary judgment in its favor on several of Monsanto’s 7 affirmative defenses. The Port District contends that Monsanto’s affirmative defenses 8 under the Comprehensive Environmental Response, Compensation, and Liability Act of 9 1980 (“CERCLA”), as amended by the Superfund Amendments and Reauthorization Act 10 of 1986, 42 U.S.C. §§ 9601 et seq., and the California Hazardous Substance Account Act 11 (“HSAA”), Cal. Health & Safety Code §§ 25300 et seq., fail because there are no pending 12 CERCLA or HSAA claims. The Port District contends that Monsanto’s equitable 13 affirmative defenses are not appropriate in this public nuisance action. The Port District 14 contends that Monsanto asserts several defenses that negate an element the Port District 15 must prove. The Port District contends that Monsanto’s affirmative defenses based on the 16 Port District’s negligence and comparative fault “fail because comparative fault cannot be 17 used to circumvent the governmental immunity afforded under the California Tort Claims 18 Act . . . .” (ECF No. 426-1 at 11). The Port District further contends that “Monsanto has 19 failed to produce admissible evidence to support its affirmative defenses based on 20 negligence and comparative fault.” (Id.). 21 Monsanto contends that it properly asserts as an affirmative defense that the Port 22 District’s public nuisance claim is a disguised products liability claim. Monsanto contends 23 that its equitable defenses are appropriate because the Port District’s witnesses testified to 24 facts that show “justice and right” require the equitable defenses to remain. (ECF No. 449 25 at 8). Monsanto contends that summary judgment is not the proper vehicle to dispose of 26 non-affirmative defenses. Monsanto contends that the California Tort Claims Act does not 27 preclude Monsanto’s negligence or comparative fault affirmative defenses, and the Port 28 1 District’s witnesses “testified at length regarding the Port’s own negligence in causing or 2 contributing to the alleged PCB discharges into the Bay . . . .” (Id. at 7-8). 3 III. RULING OF THE COURT 4 Monsanto alleges in its sixty-fourth affirmative defense that the Port District’s 5 “alleged nuisance claim is barred, in whole or in part, as a disguised product liability 6 claim.” (ECF No. 110 at 42 ¶ 64). This affirmative defense does not apply in a 7 representative public nuisance action for abatement. See Cty. of Santa Clara v. Atl. 8 Richfield Co., 137 Cal. App. 4th 292, 309-310 (2006) (“A representative public nuisance 9 cause of action seeking abatement of a hazard created by affirmative and knowing 10 promotion of a product for a hazardous use is not ‘essentially’ a products liability action 11 ‘in the guise of a nuisance action’ . . . .” (quoting City of San Diego v. U.S. Gypsum Co., 12 30 Cal. App. 4th 575, 586-87 (1994)). The Port District is proceeding on a representative 13 public nuisance claim in which the Port District’s remedy is limited to abatement. The Port 14 District’s Motion for Summary Judgment on Monsanto’s sixty-fourth affirmative defense 15 is granted. 16 Monsanto alleges in its sixth affirmative defense that the Port District’s “alleged 17 claims are barred, in whole or in part, by the doctrine of laches.” (ECF No. 110 at 29 ¶ 6). 18 “[N]o lapse of time can legalize a public nuisance, amounting to an actual obstruction of 19 public right.” Cal. Civ. Code § 3490; See People v. Gold Run Ditch & Mining Co., 66 Cal. 20 138, 152 (1884) (“Against [a public nuisance], however long continued, the State is bound 21 to protect the people.”); People v. ConAgra Grocery Prods. Co., 17 Cal. App. 5th 51, 136 22 (2017) (explaining that, “[s]ince laches is an equitable defense, it could not be asserted 23 against the government, even if it were not barred by Civil Code section 3490, because 24 such an application would defeat a public policy aimed at protecting the public” from 25 public nuisances). Laches is not available as an affirmative defense in this representative 26 public nuisance action. The Port District’s Motion for Summary Judgment on Monsanto’s 27 sixth affirmative defense is granted.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SAN DIEGO UNIFIED PORT Case No.: 15-cv-578-WQH-AGS DISTRICT, a public corporation; and 12 CITY OF SAN DIEGO, a municipal ORDER 13 corporation, 14 Plaintiffs, 15 v. 16 MONSANTO COMPANY; SOLUTIA INC.; and PHARMACIA 17 CORPORATION, 18 Defendants. 19 HAYES, Judge: 20 The matter before the Court is the Motion for Summary Judgment of Affirmative 21 Defenses filed by Plaintiff San Diego Unified Port District. (ECF No. 426). 22 I. PROCEDURAL BACKGROUND1 23 On March 13, 2015, Plaintiffs San Diego Unified Port District (the “Port District”) 24 and the City of San Diego (the “City”) initiated this action by filing a Complaint. (ECF No. 25 26
27 1 The relevant factual background is set forth in the Court’s Order on Monsanto’s Motions for Summary 28 1 1). On August 3, 2015, the Port District and the City filed separate First Amended 2 Complaints against Defendants Monsanto Company, Solutia Inc., and Pharmacia 3 Corporation (collectively, “Monsanto”). (ECF Nos. 24, 25). In its First Amended 4 Complaint (“FAC”), the Port District brings claims against Monsanto for public nuisance, 5 equitable indemnity, and purpresture relating to the alleged contamination of San Diego 6 Bay (the “Bay”) from polychlorinated biphenyls (“PCBs”) manufactured by Monsanto. 7 (ECF No. 25). 8 On September 28, 2016, the Court issued an Order granting in part and denying in 9 part Monsanto’s Motion to Dismiss the Port District’s FAC. (ECF No. 81). The Court 10 granted the Motion to Dismiss the Port District’s equitable indemnity claim and denied the 11 Motion to Dismiss the Port District’s purpresture and public nuisance claims. 12 On April 14, 2017, Monsanto filed a First Amended Answer and Counterclaims. 13 (ECF No. 110). On May 12, 2017, the Port District filed a Motion to Strike Monsanto’s 14 Affirmative Defenses (ECF No. 112) and a Motion to Dismiss Monsanto’s Counterclaims 15 (ECF No. 113). On January 30, 2018, the Court issued an Order granting the Port District’s 16 Motion to Dismiss Monsanto’s Counterclaims and denying the Port District’s Motion to 17 Strike Monsanto’s Affirmative Defenses. (ECF No. 192). On April 19, 2018, the Port 18 District filed a Motion for Judgment on the Pleadings on Monsanto’s affirmative defenses. 19 (ECF No. 213). On September 6, 2018, the Court issued an Order denying the Port 20 District’s Motion for Judgment on the Pleadings. (ECF No. 253). 21 On August 2, 2019, Monsanto filed Motions for Summary Judgment against the Port 22 District on the Port District’s request for an abatement remedy (ECF No. 422), the Port 23 District’s purpresture claim (ECF No. 423), and the Port District’s public nuisance claim 24 (ECF No. 424). On August 2, 2019, the Port District filed a Motion for Summary Judgment 25 of Affirmative Defenses. (ECF No. 426). The Port District moves for partial summary 26 judgment against Monsanto on several of the affirmative defenses asserted by Monsanto 27 in its First Amended Answer. On October 1, 2019, Monsanto filed an Opposition to the 28 1 Port District’s Motion for Summary Judgment. (ECF No. 449). On October 18, 2019, the 2 Port District filed a Reply. (ECF No. 455). 3 On December 6, 2019, the Court heard oral argument on the Motions for Summary 4 Judgment. 5 II. CONTENTIONS 6 The Port District moves for summary judgment in its favor on several of Monsanto’s 7 affirmative defenses. The Port District contends that Monsanto’s affirmative defenses 8 under the Comprehensive Environmental Response, Compensation, and Liability Act of 9 1980 (“CERCLA”), as amended by the Superfund Amendments and Reauthorization Act 10 of 1986, 42 U.S.C. §§ 9601 et seq., and the California Hazardous Substance Account Act 11 (“HSAA”), Cal. Health & Safety Code §§ 25300 et seq., fail because there are no pending 12 CERCLA or HSAA claims. The Port District contends that Monsanto’s equitable 13 affirmative defenses are not appropriate in this public nuisance action. The Port District 14 contends that Monsanto asserts several defenses that negate an element the Port District 15 must prove. The Port District contends that Monsanto’s affirmative defenses based on the 16 Port District’s negligence and comparative fault “fail because comparative fault cannot be 17 used to circumvent the governmental immunity afforded under the California Tort Claims 18 Act . . . .” (ECF No. 426-1 at 11). The Port District further contends that “Monsanto has 19 failed to produce admissible evidence to support its affirmative defenses based on 20 negligence and comparative fault.” (Id.). 21 Monsanto contends that it properly asserts as an affirmative defense that the Port 22 District’s public nuisance claim is a disguised products liability claim. Monsanto contends 23 that its equitable defenses are appropriate because the Port District’s witnesses testified to 24 facts that show “justice and right” require the equitable defenses to remain. (ECF No. 449 25 at 8). Monsanto contends that summary judgment is not the proper vehicle to dispose of 26 non-affirmative defenses. Monsanto contends that the California Tort Claims Act does not 27 preclude Monsanto’s negligence or comparative fault affirmative defenses, and the Port 28 1 District’s witnesses “testified at length regarding the Port’s own negligence in causing or 2 contributing to the alleged PCB discharges into the Bay . . . .” (Id. at 7-8). 3 III. RULING OF THE COURT 4 Monsanto alleges in its sixty-fourth affirmative defense that the Port District’s 5 “alleged nuisance claim is barred, in whole or in part, as a disguised product liability 6 claim.” (ECF No. 110 at 42 ¶ 64). This affirmative defense does not apply in a 7 representative public nuisance action for abatement. See Cty. of Santa Clara v. Atl. 8 Richfield Co., 137 Cal. App. 4th 292, 309-310 (2006) (“A representative public nuisance 9 cause of action seeking abatement of a hazard created by affirmative and knowing 10 promotion of a product for a hazardous use is not ‘essentially’ a products liability action 11 ‘in the guise of a nuisance action’ . . . .” (quoting City of San Diego v. U.S. Gypsum Co., 12 30 Cal. App. 4th 575, 586-87 (1994)). The Port District is proceeding on a representative 13 public nuisance claim in which the Port District’s remedy is limited to abatement. The Port 14 District’s Motion for Summary Judgment on Monsanto’s sixty-fourth affirmative defense 15 is granted. 16 Monsanto alleges in its sixth affirmative defense that the Port District’s “alleged 17 claims are barred, in whole or in part, by the doctrine of laches.” (ECF No. 110 at 29 ¶ 6). 18 “[N]o lapse of time can legalize a public nuisance, amounting to an actual obstruction of 19 public right.” Cal. Civ. Code § 3490; See People v. Gold Run Ditch & Mining Co., 66 Cal. 20 138, 152 (1884) (“Against [a public nuisance], however long continued, the State is bound 21 to protect the people.”); People v. ConAgra Grocery Prods. Co., 17 Cal. App. 5th 51, 136 22 (2017) (explaining that, “[s]ince laches is an equitable defense, it could not be asserted 23 against the government, even if it were not barred by Civil Code section 3490, because 24 such an application would defeat a public policy aimed at protecting the public” from 25 public nuisances). Laches is not available as an affirmative defense in this representative 26 public nuisance action. The Port District’s Motion for Summary Judgment on Monsanto’s 27 sixth affirmative defense is granted. 28 1 Monsanto further alleges defenses that are based on the Port District’s alleged lack 2 of standing to bring its representative public nuisance claim and seek an abatement remedy, 3 that are based on the Port District’s alleged inequitable actions, and that are based on the 4 Port District’s alleged negligence and comparative fault. “A defense which demonstrates 5 that plaintiff has not met its burden of proof is not an affirmative defense.” Zivkovic v. S. 6 Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). “An affirmative defense is one that 7 precludes liability even if all of the elements of the plaintiff’s claim are proven.” Gomez v. 8 J. Jacobo Farm Labor Contractor, Inc., 188 F. Supp. 3d 986, 991 (E.D. Cal. 2016) (citation 9 omitted); see Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 471 (S.D. Cal. 10 2013) (“Affirmative defenses are allegations unrelated to the plaintiff’s prima facie case 11 that deny the plaintiff’s right to relief, even if all allegations in the complaint are true.” 12 (citing Fed. Deposit Ins. Corp. v. Main Hurdman, 655 F. Supp. 259, 262 (E.D. Cal. 1987)). 13 However, identifying a defense as “affirmative” when it negates an element of the 14 plaintiff’s case not does not make that defense legally insufficient such that a motion for 15 summary judgment should be granted on that defense. See Kohler v. Islands Rests., LP, 16 280 F.R.D. 560, 567 (S.D. Cal. 2012) (denying partial summary judgment on defenses of 17 lack of standing and failure to state a claim, explaining that “simple mislabeling . . . is not 18 grounds for striking or granting partial summary judgment on [the mislabeled] defenses”). 19 In order to succeed on a motion for summary judgment, the moving party must still “show[ 20 ] that there is no genuine dispute as to any material fact and [that] the movant is entitled to 21 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 22 The sufficiency of the legal and factual basis of Monsanto’s remaining defenses, as 23 well as the applicability of the defenses to a representative action for abatement of a public 24 nuisance, will be addressed and determined at trial. The Port District’s Motion for 25 26 27 28 1 || Summary Judgment on Monsanto’s 3-5, 8, 14-16, 26-27, 46-48, 53, 55, 74-76, 80, and 84 2 || affirmative defenses is denied.” 3 CONCLUSION 4 The Port District’s Motion for Summary Judgment of Affirmative Defenses (ECF 5 ||No. 426) is granted as to affirmative defenses 6, 31-35, 37-45, and 64 and is otherwise 6 || denied. 7 Dated: March 26, 2020 BME: Me Z. A a 8 Hon. William Q. Hayes 9 United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26}, ©
27 ||? The Port District moves for summary judgment on Monsanto’s 31-35 and 37-45 affirmative defenses in 28 which Monsanto alleges affirmative defenses applicable to CERCLA and HSAA actions. Monsanto has withdrawn its 31-35 and 37-45 affirmative defenses.