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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
The following persons or entities have a financial or other interest in
the outcome of this action:
1. John Larkin, as Defendant, Trustee of the Q-Tip Trust of the
Fred R. Rippy Trust, and Co-Trustee with Sarah Rippy of the Residual
Trust of the Fred R. Rippy Trust—Mr. Larkin is not a respondent in this
appeal but has an interest in the outcome of the proceeding as a former
defendant in the underlying case;
2. Sarah Rippy, as Defendant and Co-Trustee with John Larkin
of the Residual Trust of the Fred R. Rippy Trust—Sarah Rippy is not a
respondent in this appeal but has an interest in the outcome of the
proceeding as a former defendant in the underlying case; and
3. Francine Rippy as Defendant—Mrs. Rippy is not
respondent in this appeal but has an interest in the outcome of the
proceeding as a former defendant in the underlying case.
The undersigned certifies that there are no other interested entities or
persons required to be listed under rule 8.208 of the California Rules of
Court.
Dated: January 20, 2015
Squire Patton Boggs (US) LLP
hris M. Amantea Adam R. Fox Helen H. Yang
TABLE OF CONTENTS
P g )
I. INTRODUCTION 1
II. STATEMENT OF THE CASE 4
III. STATEMENT OF FACTS 5
A. Omega's Illegal Pollution 5
B. Rippy Is Not Responsible For Omega's Pollution And Lacked Knowledge Of Health Risks At The ROP Site 6
IV ARGUMENT 8
A. Standard Of Review 8
B. The Trial Court Exercised Sound Discretion Entertaining And Deciding Rippy's Successive Motion For Summary Judgment 9
C. Rippy, A Landowner Lacking Actual Knowledge Of Any Genuine Danger On Its Land From A Third Party's Covert, Illegal Dumping Remote In Time And Space, Owed No Duty Of Care To The Employees Of Its Tenant 13
D. Rippy Did Not Cause Or Contribute To The Nuisance About Which Appellants Complain 19
E. Neither Rippy's Machining Operations In 1963-1969 Nor Its Purported Use of Omega's Services In The 1980's And 1990's Are Ultrahazardous Activities, And Neither Is Causally Related To Appellants' Claimed Injuries 21
F. All Causes Of Action Against Rippy Pail Because Appellants Cannot Establish Causation Between Their Alleged Injuries And Their Alleged Exposure 24
V. CONCLUSION 29
CERTIFICATE REGARDING WORD COUNT 30
TABLE OF AUTHORITIES
Cases
14859 Moorpark Homeowner's Ass 'n v. VRT Corp.
Page(s)
(1998) 63 Cal.App.4th 1396 8
Abassi v. Welke (2004) 118 Cal.App.4th 1353 13
Artiglio v. Corning Inc. (1998) 18 Ca1.4th 604 8
Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092 10, 12
Bisetti v. United Refrigeration Corp. (1985) 174 Cal.App.3d 643 17
Bockrath v. Aldrich Chem. Co. (1999) 21 Ca1.4th 71 24, 27, 28
Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Ca1.4th 1233 3, 8, 12, 13
In re Burbank Envtl. Litig. (C.D. Cal. 1998) 42 F. Supp. 2d 976 22
Cal. Sch. Emps. Ass'n v. Santee Sch. Dist. (1982) 129 Ca1.App.3d 785 11
Campbell v. Ford Motor Co. (2010) 206 Cal.App.4th 15 15, 19
City of Modesto Redevelopment Agency v. Superior Court (Dow Chemical Co.) (2004) 119 Cal.App.4th 28 19
City of Scotts Valley v. Cnty. of Santa Cruz (2011) 201 Cal.App.4th 1
Cottle v. Superior Court, (1992) 3 Cal.App.4th 1367 12, 24, 2
Edwards v. Post Transp. Co. (1991) 228 Ca1.App.3d 980
Fireman's Fund Ins. Co. v. Maryland Cas. Co.
2, 2
(1994) 21 Cal.App.4th 1586 8
Huntington Beach Police Officers' Ass 'n. v. City of Huntington Beach (1976) 58 Cal.App.3d 492 11
Kelley v. Trunk (1998) 66 Cal.App.4th 519 26
Ladd v. Cnty. of San Mateo (1996) 12 Ca1.4th 913 13
Laico v. Chevron US.A., Inc. (2004) 123 Cal.App.4th 649 13, 15, 1
Le Francois v. Goel (2005) 35 Ca1.4th 1094 3, 8, 12,
Lockheed Martin Corp. v. Superior Court (2003) 29 Ca1.4th 1096 24
Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92 19
Luthringer v. Moore (1948) 31 Cal. 2d 489 21, 22
Mancuso v. Consolidated Edison Co. (S.D.N.Y. 1997) 967 F. Supp. 1437 25
Mata v. Mata (2003) 105 Cal.App.4th 1121 2, 1 , 15, 19
Melton v. Boustred (2010) 183 Cal.App.4th 521 2, 19
Nardizi v. Harbor Chrysler Plymouth Sales (2006) 136 Cal.App.4th 1409 26
Nieto v. Blue Shield of Cal. Life & Health Ins. (2010) 181 Cal.App.4th 60 passim
Patterson v. Sacramento City Unified Sch. Dist. (2007) 155 Ca1.App.4th 821 10
Pender v. Radin (1994) 23 Cal.App.4th 1807 10
Pierce v. Pac. Gas & Elec. Co. (1985) 166 Cal.App.3d 68 2, 22, 2
Potter v. Firestone Tire & Rubber Co. (1993) 6 Ca1.4th 965 24, 2
Redevelopment Agency of City of Stockton v. BNSF Ry. Co. (9th Cir. 2011) 643 F.3d 668 20
Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 93 19
Rowland v. Christian (1968) 69 Cal.2d 108 14
Rutherford v. Owens-Illinois, Inc. (1997) 16 Ca1.4th 953 2, 24
Salazar v. S. Cal. Gas Co. (1997) 54 Cal.App.4th 1370 8
Salinas v. Martin (2008) 166 Cal.App.4th 404 15
Sargon Enters., Inc. v. Univ. of S. Cal. (2012) 55 Ca1.4th 747 26
Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726 10
Toomer v. United States (9th Cir. 2010) 615 F.3d 1233 13
Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504 1
Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Ca1.4th 1138 8
Wright v. Willamette Indus., Inc. (8th Cir. 1996) 91 F.3d 1105 25
Yuzon v. Collins (2004) 116 Cal.App.4th 149 17
Statutes
California Code of Civil Procedure Section 437 passim
Other Authorities
California Civil Jury Instructions, No. 460 21
Restatement Second of Torts, § 519 21
INTRODUCTION
According to Appellants, for decades a former defendant in this
case, Omega Chemical Corporation ("Omega"), illegally dumped a variety
of industrial chemicals onto its property in Whittier, California. (6 AA
1138.) As the years passed, Omega's contaminant plume silently grew, and
traveled down through the soil and into the groundwater below Omega's
adjoined parcels located at 12504 and 12512 Whittier Boulevard.' (Ibid.)
This pollution eventually migrated in groundwater beneath adjacent
properties and a public street to reach below 12519 East Washington
Boulevard (the "ROP Site' 2 where all of the Appellants contend the
chemicals vaporized, became airborne and entered the building there,
causing them injuries. (Id. at 1148-49, 1152-53, 1169-1181.)
Appellants sued Omega and others that had substantially contributed
to the pollution, but also named as a defendant Respondent Fred R. Rippy,
Inc. ("Rippy"), owner of the ROP Site. (6 AA 1137.) Rippy did not cause
Omega to pollute. (8 AA 1852.) Rippy did not even know Omega was
dumping chemicals into the ground. (Ibid.) Rippy also had no means to
stop or in any way control Omega's illegal dumping. (Ibid.) Moreover,
Rippy had relinquished to a tenant possession and control of the ROP Site
' Appellants collectively refer to these neighboring parcels as the "Omega Site." Because Omega acquired and began operations on each parcel at different times, this brief refers to them separately as the 12504 Whittier Parcel and the 12512 Whittier Parcel, and collectively as the "Whittier Parcels."
This abbreviation, which appears throughout the record, comes from the Tri-Cities Regional Occupation Program ("ROP"), which leased the referenced property between 1998 and 2012. (8 AA 1852-1853.)
for more than a decade—the very time during which Appellants contend
their injuries occurred. (Id. at 1852-1853.)
Based on these facts, Rippy is not liable for negligence. (See Mata
v. Mata (2003) 105 Cal.App.4th 1121, 1131-32 (holding that the duty of
care required to trigger liability in negligence for a landlord does not exist
unless "the landlord had actual knowledge of the dangerous condition in
question, plus the right and ability to cure the condition").) Rippy is
likewise not liable for nuisance because that . claim, as asserted by
Appellants, "rel[ies] on the same facts about lack of due care" as their ill-
conceived negligence claim. (See Melton v. Boustred (2010) 183
Ca1.App.4th 521, 542 ("the nuisance claim is a negligence claim").)
Appellants also sought to hold Rippy strictly liable for its ownership
in the 1960's of a machining operation and its purported use in the 1980's
and 1990's of Omega's services. But no claim lies in these activities either.
Neither set of facts describes ultrahazardous conduct or has any connection
to the injuries from which Appellants claim to suffer—either in proof or in
mere allegation. (See Edwards v. Post Transp. Co. (1991) 228 Cal.App.3d
980, 986 (explaining that the "use of chemicals, generally, in modern
manufacturing plants is an activity reasonably to be expected" and therefore
not ultrahazardous); Pierce v. Pac. Gas & Elec. Co. (1985) 166 Cal.App.3d
68, 85 (requiring a "proximate" association before imposing liability).)
Even assuming Rippy owed Appellants a legal duty that could give
rise to a cause of action for negligence or nuisance, or that it had engaged in
any ultrahazardous activity—none of which is supported by the evidence—
Appellants also cannot prove that their alleged injuries were caused by
exposure to Omega's chemicals at the ROP Site. (See Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968 ("[T]he burden falls on the
plaintiff to establish causation.").) The trial court thus properly dismissed
all three causes of action asserted against Rippy. (15 AA 3478-3479.)
On appeal, Appellants argue at some length that this Court should
disregard their failure of proof and summarily reject the trial court's ruling
because it was statutorily barred from reconsidering summary judgment.
The California Supreme Court says otherwise. (See Le Francois v. Goel
(2005) 35 Cal.4th 1094, 1107; see also Brown, Winfield & Canzoneri, Inc.
v. Superior Court (2010) 47 Cal.4th 1233, 1248 (explaining that trial courts
enjoy inherent authority to reconsider their interim rulings).) The trial court
invited and then granted Rippy's renewed motion, for summary judgment
because Rippy's challenge of Appellants' claims was framed by a
significantly amended pleading in an,advanced procedural posture.
Appellants had so altered the challenged pleading that had framed
the earlier motion as to warrant Rippy's new challenge before further
judicial resources were expended. (Compare 1 AA 57-84 (alleging that
Rippy was liable for all causes of action as the owner of the Whittier
Parcels while Omega was polluting them) with 6 AA 1338-1356 (clarifying
that Rippy did not own either of the Whittier Parcels during or after
Omega's operations, and instead anchoring Appellants' claims on new
allegations of agency and details of Rippy's machining operations, to show
that Rippy supposedly had notice of contamination at Omega's facility); see
also Nieto v. Blue Shield of Cal. Life & Health Ins. (2010) 181 Cal.App.4th
60, 74 ("It is well established that the pleadings determine the scope of
relevant issues on a summary judgment motion").) The mature stage of
discovery also allowed the new motion to challenge causation, a dispositive
issue that had not been raised by the earlier motion. (15 AA 3470; see
Nieto, 181 Cal.App.4th at 72 (declining to bar a successive motion because
it "addressed an issue not raised by the prior motion
The trial court appropriately managed its own docket to consider a
motion for summary judgment renewed to address these new developments,
and properly applied the law to grant that motion. This Court should
accordingly affirm these sound rulings.
II. STATEMENT OF THE CASE
Appellants commenced this action by filing a complaint against
Rippy, Omega, and many, many others on November 24, 2010. (1 AA 1.)
Appellants filed a Second Amended Complaint on May 13, 2011, alleging
that Rippy should be held liable for negligence, ultrahazardous activity, and
public nuisance. (Id. at 1-47.) Rippy filed a motion for summary judgment
on June 20, 2012 (id. at 54-84), which the trial court denied. (5 AA 1130.)
Thereafter, a number of changes to the case occurred. Omega and a
large group of parties deemed potentially responsible for its dumping
settled Appellants' claims against them for nearly two million dollars. (1
RA 9-30.) The case was reassigned to a new judge. (1 RA 41.) Numerous
substantive amendments were made to the complaint in a series of
iterations, culminating in a Fifth Amended Complaint, filed on September
23, 2013, that named a number of new parties and asserted a litany of new
and (in some cases) different facts. (6 AA 1137-1337.) Rippy also
associated—and ultimately substituted—in new counsel. (1 RA 42-48.)
Appellants' counsel also changed firms. (Compare 2 AA 427 with 6 AA
1137.)
Responding to the trial court's invitation to streamline and better
focus the case, on October 18, 2013, Rippy filed a new motion for summary
judgment. (6 AA 1338-1356.) This new motion for the first time
challenged the claims as framed by the amended, operative pleading and
presented the trial court with evidence, previously unavailable. that
Appellants could not demonstrate causation. (Ibid.) The trial court
considered Rippy's second motion and granted it in its entirety. (15 AA
3469-3472.) The trial court entered judgment in favor of Rippy on January
15, 2014 (id. at 3478-3479) and on April 4, 2014, Appellants filed a Notice
of Appeal. (Id. at 3484-3486.)
I STATEMENT OF FACTS
Omega's Illegal Pollution
Appellants' claims arise from Omega's illegal dumping of the
industrial chemicals trichloroethylene, perchloroethylene, methylene
chloride and benzene (the "Subject Chemicals") as a result of Omega's
chemical processing operations at the Whittier Parcels from 1976 to 1991.
(6 AA 1138.) Over the years, the Subject Chemicals dumped by Omega
spread through groundwater from one or both of its Whittier Parcels,
crossing beneath Putnam Street to nonadjacent properties. Appellants
contend that they were exposed to the Subject Chemicals when they
volatilized from the groundwater and entered the air within a building on
the ROP Site, where the ROP had facilities. (6 AA 1148-1149, 1153.)
The map on the following page depicts the locations of the two plots
owned by Omega (the Whittier Parcels) in relation to the ROP Site.
Although Rippy owned the ROP Site, it was leased to the ROP from
1998 to 2012. (8 AA 1852-1853.) All Appellants worked for the ROP at
some point between 1999 and 2012 with the exception of Aliyah Islava,
whose mother worked there during part of Aliyah's gestation. (11 AA
2524, 2563, 2598; 12 AA 2636, 2675, 2710, 2761, 2794; 13 AA 3084-
3085.) Appellants contend that the Subject Chemicals at some point
vaporized from the groundwater and entered the ROP building, where the
polluted air substantially caused Appellants' disparate and varied ailments.
(6 AA 1169-1181.)
B. Rippy Is Not Responsible For Omega's Pollution And Lacked Knowledge Of Health Risks At The ROP Site
Rippy has never been affiliated or associated with Omega's
operations. (8 AA 1852.) Nor has Rippy ever owned or conducted any
operations at the 12512 Whittier Parcel. (Id. at 1851.) Half a century ago,
Rippy briefly owned the 12504 Whittier Parcel, but its three-year
ownership of and operations on that parcel terminated about ten years
6
before Omega commenced operations and began its illegal pollution there.
(Id. at 1851-1852; see also id. at 1855-1858)3
To this day, Rippy lacks actual knowledge about any dangerous
health effects of Omega's chemical dumping affecting those within the
ROP building. (8 AA 1853-1854; 9 AA 1873-1875, 1885-1886, 1891,
1894, 1901-1902, 1905-1906, 1909, 1915-1916.) In fact, the first time
Rippy received notice of even the possibility that there might, potentially
be hazardous substances at the ROP Site was January 21, 2010. (Id. at
1853.) Indeed, this "notice," which came in the form of a letter from ROP,
stated that "[v]apor intrusion was . . . at levels not considered injurious to
the public" and that the "water plume flowing below the Omega Site and
possibly under the ROP building present[ed] no immediate risk to
humans." (Id. at 1865-1866 (emphases added)).
A few months later, in March 2010, the United States Environmental
Protection Agency ("EPA") conducted air samples at the ROP Site. (8 AA
1854.) At no time did the EPA ever indicate to Rippy that the results of the
air quality testing at the ROP Site demonstrate a probable risk to human
health. (Ibid.) Moreover, a highly qualified toxicologist specializing in
human health risk assessment has confirmed that no causal link exists
between Appellants' claimed injuries and their potential exposures to the
Subject Chemicals. (9 AA 1957, 1959-1960.)
' During Rippy's brief ownership of the 12504 Whittier Parcel, Rippy never received a notice of contamination that would pose any threat to human health. (8 AA 1852.)
IV. ARGUMENT
Standard Of Review
A trial court's decision to allow a party to file a successive motion
for summary judgment should not be reversed unless it has resulted from an
abuse of discretion. (Nieto, supra, 181 Cal.App.4th at 72, citing Pender v.
Radin (1994) 23 Cal.App.4th 1807, 1812.) "Discretion is abused when a
court exceeds the bounds of reason (14859 Moorpark Homeowner's
Ass 'n v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402.) Such great
deference extends to the trial court because its inherent powers of case
management include the power to reconsider summary judgment rulings;
whether sua sponte or by inviting successive motions. (Le Francois, supra,
35 Cal.4th at 1107; see also Brown, Winfield & Canzoneri, Inc., supra, 47
Cal.4th at 1248; Nieto, supra, 181 Cal.App.4th at 73.)
A trial court's grant of summary judgment is reviewed de novo.
(Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138,
1142.) The appellate court considers all of the evidence set forth in the
supporting and opposing papers, except that to which objections have been
made and properly sustained by the trial court. (Artiglio v. Corning Inc.
(1998) 18 Cal.4th 604, 612.) An appellate court should affirm the trial
court's judgment if it is correct on any theory of law applicable to the case,
whether or not the trial court adopted that theory. (Fireman's Fund Ins. Co.
v. Maryland Cas. Co. (1994) 21 Cal.App.4th 1586, 1595; see also Salazar
v. S. Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376.)
B. The Trial Court Exercised Sound Discretion Entertaining And Deciding Rippv's Successive Motion For Summary Judgment
Appellants complain that "as to issues of liability," the motion
considered and granted by the trial court was statutorily barred by section
437c, subdivision (f)(2).4 (AOB 14-19.) They are mistaken. Section 437c,
subdivision (0(2) prohibits only repetitive motions "based on issues
asserted in a prior motion for summary adjudication and denied by the
court." Rippy's renewed motion was no redundant "do-over" and instead
addressed numerous changed circumstances of the case.
First, Rippy's new motion challenged the allegations in Appellants'
Fifth Amended Complaint, which had added new parties and a host of new
facts that framed the pleadings in a manner quite different from the Second
Amended Complaint that was the subject of Rippy's earlier motion. 5
(Compare 1 AA 57-84 (basing their argument about Rippy's liability on its
purported ownership of the Whittier Parcels during some of the years
Appellants claim they were exposed to the Subject Chemicals) with 6 AA
1338-1356 (adding, among other things, details clarifying Rippy's non-
ownership of the Whittier Parcels and adding both allegations of agency
and details regarding Rippy's machining operations in attempt to show that
Rippy had notice of Omega's contamination); see also, Nieto, supra, 181
Cal.App.4th at 74 ("It is well established that the pleadings determine the
scope of relevant issues on a summary judgment motion") (internal
citations omitted).)
All statutory references are to the California Code of Civil Procedure unless otherwise indicated.
s Appellants filed the Fifth Amended Complaint at the request of the trial court after it noted that Appellants needed to clarify their allegations regarding ownership of and contamination at the Whittier Parcels.
Second, Rippy's renewed motion was brought only after fact
discovery had closed and newly discovered facts addressing or
contextualizing the new pleadings had come to light. (1 RA 34-40;
2040.20(a).) Additionally, new evidence , from Rippy's expert
toxicologist, Dr. Barbara Beck, was before the trial court for the first time.
(See 9 AA 1954-1963.) Among other things, Dr. Beck's report clearly
established that Appellants were not exposed to the Subject Chemicals at
levels that had a causal relationship to Appellants' purported injuries. (See
Pender, supra, 23 Cal.App.4th 1807, 1811-1812 (finding that discovery
uncovered new information that "justified the renewal of the summary
judgment/summary adjudication motion.") The new evidence on causation
was a "principal" basis for the trial court's ruling on the second motion as
Appellants' failure to show causation necessarily disposed of all their
claims against Rippy.6 (See 15 AA 3470-3472.)
Third. and as an outgrowth of these other developments, Rippy's
renewed motion advanced new theories and a level of detailed analysis of
the law absent from the earlier motion. (See Patterson v. Sacramento City
Unified Sch. Dist. (2007) 155 Cal.App.4th 821, 827 (acknowledging that
although "both motions for summary judgment involved 'duty in a general
sense, the District's two motions were not identical and involved different
legal theories").) In this case, the motions differ markedly in their
6 Because Rippy's second motion targets new evidence on causation, among other things, Appellants' reliance on Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092 and Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726 is misplaced. Bagley barred a second motion only because "none of the evidence presented in support of the second motion was 'new." (73 Cal.App.4th at 1096-1097.) Schacter likewise barred a successive motion simply because it was 'based on issues asserted in a prior motion . . . with no 'newly discovered facts or circumstances or change of law supporting the issues reasserted.'" (126 Cal.App.4th at 738.)
-10-
discussions of what triggers a duty of care and why Rippy is not liable for
nuisance.8 The renewed motion also addressed an entirely new issue based
upon previously unavailable expert evidence—Appellants' failure to show
causation.9 (Compare 1 AA 57-84 [Rippy's first motion] with 6 AA 1338-
1356 [Rippy's second motion]; see Nieto, supra, 181 Cal.App.4th at 72
In Rippy's first motion, Rippy argued principally that it did not owe a duty of care because: (1) it did not own or exercise control over the "Omega Site" during the relevant time period, and (2) Rippy did not contaminate the ROP Site. (1 AA 68-74.) In its second motion, Rippy addressed Appellants' new contentions in the Fifth Amended Complaint, which clarified that Rippy did not own Omega's Whittier Parcels and set forth how Rippy had ostensibly received notice of some possibility of danger due to Omega's contamination. Rippy relied on the record evidence that had developed and the application of Mata to that evidence to demonstrate that there was no evidence of actual danger and it therefore owed no duty of care, as explained more fully below. (6 AA 1347-1351.)
8 In Rippy's first motion, Rippy argued that Appellants could not maintain a cause of action against Rippy for nuisance because they lacked standing and because Rippy did not have knowledge of Omega's contamination. (5 AA 1060-1061.) In its second motion, Rippy argued that it could not be held liable for nuisance because the undisputed, record evidence showed it had not actively participated in Omega's contamination, as explained below. (6 AA 1347-1352.)
9 Appellants effectively concede that Rippy's second motion on causation is proper. Although Appellants argue that the two motions address similar issues of "liability," they do not assert that Rippy's second motion was improper as to issues of causation. ' (See AOB 16 (arguing "other than as to issues of causation . . . there is no material fact . . . that was not included in its first separate statement of undisputed fact") (emphasis added).) Appellants do not seriously dispute the propriety of Rippy's second motion. (See generally, Cal. Sch. Emps. Ass'n v. Santee Sch. Dist. (1982) 129 Cal.App.3d 785, 787 (a party "apparently concedes" a point it does not raise in its appellate brief); Huntington Beach Police Officers' Ass'n. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 499 (defendants "virtually concede[d]" the inapplicability of the City's grievance procedure by emphasizing an alternative administrative procedure).)
(section 437c, subdivision (0(2) did not bar summary judgment because the
operative motion addressed the issue of fraud, which was an issue not
raised by the prior motion).)
In short. Rippy's second motion was not simply a "reformatted,
condensed, and cosmetically repackaged" version of the first motion.
(Bagley, supra, 73 Cal.App.4th at 1097.) Regardless, what matters most is
that the trial court, in its sound exercise of discretion, provided the parties
with a meaningful opportunity to brief and argue fully all issues. (Brown
Winfield & Canzoneri, Inc., supra, 47 Cal.4th at 1249-1250; Le Francois,
supra, 35 Cal.4th at 1108.)10
In the instant case, the trial court invited Rippy to file a second
summary judgment motion as an alternative to a planned motion pursuant
to Cottle v. Superior Court (1992) 3 Cal.App.4th 1367. (See 14 AA 3120-
3121.) Indeed, during the hearing on Rippy's• demurrer to the Fifth
Amended Complaint on November 21, 2013, the trial court encouraged
Rippy to seek resolution of the claims against it through a successive
motion for summary judgment. (See 2 RT [11/21/2013 Hrg. Tr.] at 26:28-
27:14, 28:3-7".) In accordance with this invitation, Rippy filed the motion
(6 AA 1338-1356), Appellants opposed (9 AA 1964-1987), and both sides
argued the merits of their motions (2 RT [11/21/2013 Hrg. Tr.]) before the
trial court entered judgment in Rippy's favor (15 AA 3478).
Appellants make a passing reference to instances where a second judge acts to vacate or nullify the earlier ruling of another (AOB 15-16, n.7), but that does not characterize the trial court's conduct in this case.
" Because neither volume of the Reporter's Transcript is paginated, specific citations to the hearing date, page, and line number is included for the Court's convenience.
-12-
Given the trial court's inherent power to entertain a second motion
for summary judgment, its encouragement to do so here, and the fact that
the parties had a meaningful opportunity to fully brief and argue the
motion, this Court should find the trial court soundly exercised its
discretion. (See Brown Winfield & Canzoneri, Inc., supra, 47 Cal.4th at
1249-1250; Le Francois, supra, 35 Cal.4th at 1108; Abassi v. Welke (2004)
118 Cal.App.4th 1353, 1360 (deeming proper exercise of discretion to
entertain and rule upon second summary judgment motion even though it
was not based on new evidence, because the parties nevertheless had an
opportunity to brief the issue, a hearing was held and summary judgment
advanced judicial economy).)
Rippy, A Landowner Lacking Actual Knowledge Of Any Genuine Danger On Its Land From A Third Party's Covert, Illegal Dumping Remote In Time And Space, Owed No Duty Of Care To The Employees Of Its Tenant
To substantiate their negligence claim, Appellants must prove, as a
threshold matter, that Rippy owed them a legal duty of care. (See Ladd v.
Cnty. of San Mateo (1996) 12 Cal.4th 913, 917 (identifying the existence of
a legal duty of care as a required element of the claim); Toomer v. United
States (9th Cir. 2010) 615 F.3d 1233, 1237 (noting that "where there is no
duty, there can be no negligence").) "The existence and scope of such a
duty is an issue of law to be determined on a case-by-case basis, although
the facts giving rise to a duty must still be proved by the plaintiff." (Laico
v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, 659 (citing Alcaraz v.
Vece (1997) 14 Ca1.4th 1149, 1162 n.4.))
As part of this analysis, courts consider "the foreseeability of harm
to the plaintiff, the degree of certainty that the plaintiff suffered injury,
- 13 -
[and] the closeness of the connection between the defendant's conduct and
the injury suffered." (Rowland v. Christian (1968) 69 Cal.2d 108, 113.) In
this context, the trial court examined all of "plaintiffs' evidence" and
deemed it "insufficient to support a finding that [Rippy] owed plaintiffs a
duty of care."I2 (15 AA 3470.) More specifically, the trial court assessed
plaintiffs' "exhibits and documents and the testimony of their expert
geologist (Rob Hesse)," and found that the evidence presented "merely
raise[d] speculation that possibly defendant Rippy could have known about
the alleged condition. Plaintiffs' evidence is inadequate to show either that
defendant Rippy must have known about the condition, or that it should
have been aware of it." (Id. (emphases supplied).)
Instead, the evidence demonstrates Rippy lacked actual knowledge
of any dangerous risk to human health based on the record evidence about
the concentration of the Subject Chemicals at the ROP Site. (8 AA 1853-
1854; 9 AA 1873-1875, 1885-1886, 1891, 1894;1901-1902, 1905-1906,
1909, 1915-1916.) Moreover, because of Rippy's status as a landlord that
had relinquished possession and control of the ROP Site (8 AA 1853),
Appellants were required to demonstrate Rippy's actual knowledge of a
dangerous condition. "[A] 'bright line' rule has developed in California to
moderate the landlord's duty of care owed to a third party injured on the
property as compared with the tenant who enjoys possession and control."
12 This was the trial court's first, and only, occasion in which it examined record evidence to support such a duty, (Compare with 5 AA 1130-1131 (where the trial court stated the legal standard for "questions of duty" but specifically declined to rule on the duty question, noting that "plaintiffs should be allowed to complete discovery.").) When the trial court issued its January 6, 2014 ruling, fact discovery was complete and the undisputed facts made clear in the record, including Appellants' final and operative amended pleading, fully supported summary judgment.
- 14 -
Salinas v. Martin (2008) 166 Cal.App.4th 404, 412; cf. Laico, supra, 123
Cal.App.4th at 661 (noting that California law "place[s] major importance
on the existence of possession and control as a basis of tortious liability for
conditions on the land") (citations omitted).)
A landlord's duty of care "is attenuated as compared with the
tenant."13 (Maki, supra, 105 Cal.App.4th at 1131; see also Uccello v.
Laudenslayer (1975) 44 Cal.App.3d 504, 511). Accordingly, "before
liability may be thrust on a landlord for a third party's injury due to a
dangerous condition on the land, the plaintiff must show that the landlord
had actual knowledge of the dangerous condition in question, plus the right
and ability to cure the condition." (Mata, supra, 105 Cal.App.4th at 1131-
1132 (emphasis added); Salinas, supra, 105 Cal.App.4th at 412; Laico,
supra, 123 Cal.App.4th at 661.)
The record is devoid of evidence demonstrating any nonspeculative
dangerous condition at the ROP building, let alone evidence that Rippy
knew about it. Appellants merely point to a handful of notices regarding
Omega's contamination at the distinct Whittier ParCels (AOB 25, 27-28), as
well as the declaration of their retained geologist, Rob C. Hesse, who
expressly speculates about how Rippy supposedly must have "had access to
information and knowledge of possible hazards at the ROP/Crisis Shelter"
(10 AA 2334 (emphasis added)). The deliberate choice of words by
13 California courts have explained that such attenuated relationships can deprive a party of its claim as "legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor's conduct." (Campbell v. Ford Motor Co. (2010) 206 Cal.App.4th 15, 31, quoting Lugtu v. Cal. Highway Patrol (2001) 26 Cal.4th 703, 716.) "The element of a legal duty of care generally acts to limit 'the otherwise potentially infinite liability' that would otherWise flow from every negligent act." (Id., quoting Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.)
- 15 -
Appellants' own expert doomed their claim because it exposes its
speculative nature.
A thorough read of the notices upon which Appellants purport to
rely reveals the facts summarized below that likewise undercut their claim:
• Omega and other third parties14 at various times may have received
reports detailing aspects relevant to the ongoing investigation of
Omega's contamination, but these reports did 1101 identify or address
and• public health threats to persons at the ROP Site and, at times,
even affirmed that there was no danger to human heafth. 15 (10 AA
2341, 2345-2352; 11 AA 2391- 2422, 2436,.2499-2502, 2505, 2509-
2513.)
• The EPA issued requests to Rippy for information, but these requests
were unaccompanied by any disclosures or pronouncements about
the impact of Omega's contamination on human health. (11 AA
2466-2490.)
• The EPA generated a document, with no identified recipients, noting
that its sampling of one building disclosed indoor air levels for
which "there is not an immediate health threat."(1 1 AA 2492-
2497.)
Given that Mr. Hesse's speculative conclusions regarding what Rippy
"must have known" are entirely based on these disclosures — which do not
14 Rippy has no relationship with or control over Omega or any other party responsible for the dumping. (8 AA 1852; 10.AA 2318-2319.)
'Omega's dumping did not occur at or adjacent to the ROP Site, or any other parcel owned by Rippy at the time (10 AA 2318), and also occurred almost a decade before Appellants claimed that they were exposed to the Subject Chemicals (10 AA 2318; 11 AA 2524, 2563, 2598; 12 AA 2636, 2675, 2710, 2761, 2794; 13 AA 3084-3085).
- 16 -
identify or address any public health dangers — the trial court properly
found that Appellants' evidence was "inadequate to show either that
defendant Rippy must have known about the condition, or that it should
have been aware of it." (15 AA 2470.)
In order to raise a triable issue that Rippy had actual knowledge of a
genuine threat capable of triggering a legal duty that could lead to
liability, I6 Appellants must have provided more than conjecture. (Yuzon v.
Collins (2004) 116 Cal.App.4th 149, 159 & .166 (citing Uccello v.
Laudenslayer, supra, 44 Cal.App.3d at 514 n.4 (affirming summary
judgment and deeming "speculative" an expert's declaration that defendant
landlord "must have" known about the violent propensities of one of his
tenants' dogs, even though it was based in part on the landlord's prior
requests to confine the dogs)).)
But conjecture is all Appellants provide. Indeed, the record
evidence demonstrates that Rippy did not receive notice of even possible
contamination until January 21, 2010. (8 AA 1853, 1865-1866.) Even
then, the notice made Rippy aware only that any such exposure occurred at
"levels not considered injurious to the public" and "present[ed] no
immediate risk to humans." (Id. at 1866 (emphases added); see Bisetti v.
United Refrigeration Corp. (1985) 174 Cal.App.3d 643, 651-52 (affirming
summary judgment based in part on landlord's declaration disclaiming
prior knowledge of the tenant's acid vats on the property, its condition, or
an alleged hole in the fence surrounding the premises).)
16 Any suggestion that constructive knowledge could impose a duty on Rippy (see AOB 26-27), is foreclosed by the law. (See Laico, supra, 123 Cal.App.4th at 661-62 ("Plaintiffs maintain, however, that constructive knowledge is sufficient to impose a duty on CUSA as the property owner. In support of their assertion plaintiffs cite no pertinent authority").)
-17-
Far from showing any actual knowledge of a genuine risk of injury,
the record evidence establishes that Rippy simply had (and still has) no
knowledge of a truly dangerous condition on the ROP Site.
Appellants' insistence that Rippy was "obligated to inspect its
property before the ROP began using and occupying the ROP building in
1998" and that "if [Rippy] had inspected its property using reasonable care,
[it] would have discovered the contamination at the property at that time"
(AOB 26-27; see AOB 22) does not alter the evidentiary record. There are
no facts from which to infer that even if Rippy had conducted an inspection
of the ROP Site in 1998, it would have discovered that Omega's
contaminant plume posed a dangerous risk to human health there. (See 11
AA 2505.) As late as 2010 even the EPA concluded that "the water plume
flowing below the Omega Site and possibly under the ROP building
presented] no immediate risk to humans" (8 AA 1853), and any vapor
intrusion was therefore "not considered injurious to the public" (8 AA
1866) (emphases added).
Supplementing this evidentiary record, competent expert analysis
from Dr. Barbara Beck further concludes that "no . causal association
exists between [Appellants'] potential exposure to the [Subject Chemicals]
and their claimed health effects." (9 AA 1960.)
Taken together, these facts compel the conclusion that an inspection
of the ROP Site before 1998 would not have caused Rippy to discover any
condition on the ROP Site that presented a dangerous risk to human health,
and reinforces the truth that Rippy still lacks actual knowledge of a
dangerous condition on the ROP Site, given the lack of a causal link.
Absent any competent countervailing evidence of actual knowledge
of a genuine danger, and given the extreme attenuation between Rippy and
- 18-
Appellants' claimed injuries, Rippy cannot be held liable for negligence.
(See Mata, supra, 105 Cal.App.4th at 1132 (affirming summary judgment
for a landlord charged with negligence for the death of a bar patron because
the landlord had "at most . . . 'heard of' fights at the bar on a 'couple' of
occasions," because, among other reasons, the landlord was "not a manager
or supervisor" of the premises); Campbell, supra, 206 Cal.App.4th at 31.)
Rippy Did Not Cause Or Contribute To The Nuisance About Which Appellants Complain
Appellants' nuisance claim is based on the same facts as their
negligence claim. (Compare AOB 26-27 with AOB 31.) As such, and
consistent with the trial court's ruling (15 AA 3472), Appellants' nuisance
cause of action fails for the same reasons their negligence claim fails —
because Rippy owed Appellants no duty of care, as explained above. (See
Melton, supra, 183 Cal.App.4th at 542 (holding that "the nuisance claim is
a negligence claim" when it relies on the same facts to allege a lack of due
care and therefore "stands or falls with the determination of the negligence
cause of action") (internal quotations omitted); Lussier v. San Lorenzo
Valley Water Dist. (1988) 206 Cal.App.3d 92, 104-105 (noting that a
nuisance claim based on failure to act requires proof of negligence).)
Moreover, in the specific context of environmental litigation,
liability premised on a nuisance cause of action, requires proof that the
defendant was an "active participant" in causing the contamination that
Appellants characterize as the nuisance. (Resolution Trust Corp. v.
Rossmoor Corp. (1995) 34 Cal.App.4th 93, 99-100 (affirming nonsuit in
favor of defendants on nuisance claim when no evidence showed they
actively caused or contributed to the contamination); City of Modesto
- 19 -
Redevelopment Agency v. Superior Court (Dow Chemical Co.) (2004) 119
Cal.App.4th 28, 42-43 (holding that sellers and manufacturers of solvents
not actively engaged in their disposal cannot be active participants in
causing a nuisance from the contamination from the solvents).)
Appellants produced no evidence rendering this question a triable
issue. Indeed, the record discloses that Rippy owns neither of the parcels
where Omega engaged in the alleged nuisance causing activity. (8 AA
1851-1852.) Although Rippy briefly owned the 12504 Whittier Parcel
approximately 50 years ago, it relinquished all ownership and control over
that site about a decade before the contamination first could have occurred.
(Id. at 1851-1852; 9 AA 1878-1879.) Moreover, Rippy has never had
actual knowledge that contamination from either of the Whittier Parcels
migrated into groundwater below the ROP Site and later volatilized to
reach concentrations in the air on the property sufficient to create a
dangerous risk to human health. (3 AA 456, 484; -8 AA 1852-1854, 1865-
1866; 9 AA 1873-1875, 1878-1879, 1885-1886, 1891, 1894, 1901-1902,
1905-1906, 1909, 1915-1916, 1959-1960.)
Because Rippy was not an active participant in causing the
contamination—Rippy is, itself, a passive victim of the contamination—
Rippy is not liable for nuisance. (See Redevelopment Agency of City of
Stockton v. BNSF Ry. Co. (9th Cir. 2011) 643 F.3d 668, 674 (concluding
that defendants who did not release petroleum, or knowingly permit its
migration, were also not liable for nuisance under California law).)
-20-
Neither Rippy's Machining Operations In 1963-1969 Nor Its Purported Use of Omega's Services In The 1980's And 1990's Are Iltrahazardous Activities, And Neither Is Causally Related To Appellants' Claimed Injuries
Liability for ultrahazardous activity requires that the defendant
engage in ultrahazardous conduct. (See Judicial Council of California Civil
Jury Instructions, No. 460 (Strict Liability for Ultrahazardous Activities —
Essential Factual Elements); cf. Restatement Second of Torts, § 519 ("One
who carries on an abnormally dangerous activity is subject to liability for
harm to the person, land or chattels of another resulting from the
activity.").) "An activity is ultrahazardous if it necessarily involves a risk
of serious harm to the person. land or chattels of others which cannot be
eliminated by the exercise of the utmost care . . . . (Luthringer v. Moore
(1948)31 Cal. 2d 489, 498.)
Recognizing this high standard, the trial court correctly determined
that "Plaintiffs' evidence is insufficient to demonstrate that defendant
Rippy's use of a 'vapor degreaser,' or its possible involvement in the
disposal of PCE on the property, qualifies as an .ultrahazadous activity."
(15 AA 3472.) With respect to Rippy's purported use of a vapor degreaser,
Appellants urge the Court to reach a result different from the trial court, but
on the same deficient evidence.
Appellants seek a jury trial based on Rippy's mere ownership of a
machine shop that they contend may have used solvents on the 12504
Whittier Parcel between 1963-1969, a decade before Omega's dumping and
nearly three decades before Appellants' claimed first exposure to Omega's
contamination. (AOB 29.) As the trial court aptly noted, "[t]hat defendant
Rippy, about 50 years ago, conducted operations at the subject property that
may have involved PCE is irrelevant." (15 AA 3471-3472 (emphasis
-21-
added).) Similarly, the trial court found that Rippy's "possible involvement
in the disposal of PCE" also fails to qualify as ultrahazardous. Appellants'
second accusation has nothing to do with Rippy's actions, and instead
concerns Omega's services to dispose of TCE and other unnamed
chemicals in the 1980's and 1990's. (Ibid.)
Setting aside the speculative nature of the first charge, and the
necessity of Rippy's actual knowledge of Omega's mishandling to the
second (which is equally speculative), Appellants cite no authority to
support their contention that owning a machining company, using solvents,
or using a chemical company for disposal "necessarily involves a risk of
serious harm which cannot be eliminated by the exercise of the utmost
care." (Luthringer, supra, 31 Ca1.2d at 498 (emphasis added); see, e.g.,
Edwards, supra, 228 Cal.App.3d at 986-987 (holding that handling and
transportation of sulfuric acid was not an ultrahazardous activity that
merited the imposition of strict liability); Pierce, supra, 166 Cal.App.3d at
85 (finding that the maintenance of high-voltage power lines and
transformers—which delivered 7,000 volts of electricity into a residential
system designed for 240 volts—was not ultrahazardous); In re Burbank
Envtl. Litig. (C.D. Cal. 1998) 42 F. Supp. 2d 976, 983 ("Courts have held
that risks associated with the use, storage and/or disposal of industrial
solvents such as TCE and PCE can be avoided through the exercise of
reasonable care . [and] relied primarily on this consideration in holding
strict liability did not apply").)
More importantly, as the quotes above reveal, Appellants lack any
evidence to support their speculations. Appellant's' argument also suffers
from an independently dispositive failure to demonstrate causation. Before
the trial court, they never once even argued "that their alleged injuries
- 22 -
resulted from such [purportedly ultrahazardous] activity."17 (See 9 AA
1983-1984.) The failure to raise even this argument below is fatal to
Appellants' appeal. (City of Scotts Valley v. Cnty. of Santa Cruz (2011)
201 Cal.App.4th 1, 28-29 ("As a general rule, theories not raised in the trial
court cannot be raised for the first time on appeal").)
Even if the Court were to consider Appellants' new theory raised for
the first time on appeal, Appellants again provide only speculation, no
proof. They assert that Rippy's use of solvents half a century ago and
Omega's hauling of chemicals away from Rippy's remote operations in the
1980's and 1990's somehow transforms it into a "likely" contributor to
Omega's contamination. (AOB 29-30.) Because "[t]he doctrine of
ultrahazardous activity provides that one who undertakes an ultrahazardous
activity is liable to every person who is injured as a proximate result of
that activity . . (Pierce, supra, 166 Cal.App.3d at 85 (emphasis added)),
such speculative assertions fall far short of the evidence required by law.
Indeed, Appellants have proffered no evidence to show that their injuries
actually resulted from these (purported) activities to justify asking a jury to
consider whether Rippy is strictly liable. (See Pierce, supra, 166
Cal.App.3d at 85.)
" Rather, Appellants asserted that Rippy historically "used a vapor degreaser" and "disposed of spent PCE wastes and other hazardous wastes .
. at the Omega Site" only to "demonstrat[e] the company's knowledge of the environmental and health consequences of these toxic chemicals." (6 AA 1156, 1193; see also 10 AA 2322 (seeking to support this contention by expert declaration).)
- 23 -
All Causes Of Action Against !Zippy Fail Because Appellants Cannot Establish Causation I3etween Their Alleged Injuries And Their Alleged Exposure
The trial court separatel) ruled that Appellants' claims against Rippy
fail for lack of causation. (15 AA 3470 ("plaintiffs' evidence is insufficient
to establish a causal connection").) I8 To establish proximate cause,
Appellants must demonstrate "a reasonable medical probability based upon
competent expert testimony that [Rippy's] conduct contributed to [their]
injury." (Bockrath v. Aldrich Chem. Co. (1999) 21 Ca1.4th 71, 79; see also
Cottle, supra, 3 Cal.App.4th at 1384.) Appellants did not even come close.
Among other things, Appellants needed to identify sufficient record
evidence to generate at least a triable issue about the extent of their
chemical exposure. (See Cottle, supra, 3 Cal.App.4th at 1386 (upholding
an order precluding petitioner from submitting evidence at trial that
personal injuries were caused by exposure to toxic chemicals because
petitioner lacked expert testimony that the injuries were caused by a
specified level of exposure to identified chemicals); see also, e.g., Potter v.
Firestone Tire & Rubber Co. (1993) 6 Ca1.4th 965, 989 ("[T]he fact that
one is aware that he or she has ingested or has been otherwise exposed to a
carcinogen or other toxin, without any regard to the nature, magnitude, or
proportion of the exposure provides no meaningful basis upon which to
evaluate (one's fear of cancer in order to recover under certain tort
theories)."); cf. Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th
18 California embraces the substantial factor test, a standard that generally produces the same results as the "but for" rule of causation. (Rutherford, supra, 16 Cal.4th at 968.) An "infinitesimal" or "theoretical" factor in bringing about an injury is decidedly not a substantial factor. (Ibid.)
- 24 -
1096, 1109 (affirming intermediate appellate court's reversal of a toxic tort
certified as a class action because "each class member's actual toxic dosage
would remain relevant").)
This exacting standard, which is the rule in California and across the
nation, reflects "the most fundamental tenet of toxicology - toxins cause
illnesses only at sufficient dosages." (Mancuso v. Consolidated Edison Co.
(S.D.N.Y. 1997) 967 F. Supp. 1437, 1453; see also, e.g., Wright v.
Willamette Indus., Inc. (8th Cir. 1996) 91 F.3d 1105, 1107-08 (concluding
that while the plaintiffs had "proved that they were exposed to defendant's
emission and that wood fibers from defendant's plant were in their house,
their sputum, and their urine, they failed to produce evidence that they
were exposed to a hazardous level of formaldehyde from the fibers
emanating from [defendant's] plant" and "fwlithout proving hazardous
levels of exposure to [defendant's] formaldehyde, the (plaintiffs) failed to
carry their burden of proof at trial on the issue of causation . . .
(emphases added).)
In this case, Appellants produced no competent evidence that
indicates that the Subject Chemicals actually entered their bodies at levels
sufficient to cause their claimed illnesses. Nor did they present competent
evidence that those chemicals can be a substantial factor in bringing about
their complained-of illnesses at any levels. Instead, Appellants advanced
-expert" declarations that pile unreliable and speculative inferences upon
one another.
Appellants first relied on their soil chemist, Paul Rosenfeld, to
model historical indoor air quality at the ROP Site based on groundwater
data collected away from the ROP Site, (13 AA 3033-3034, 3039), even
though indoor air data collected at the ROP Site was available and utilized
-25-
by another expert. (9 AA 1959-1960.) Even if this methodology were
appropriate and reliable (it isn't) Dr. Rosenfeld failed to assign any degree
of probability to his model. which accordingly provided only "estimates" of
uncertain probability that he further conceded "can vary significantly based
on a variety of building conditions, meteorological conditions, and other
facts" none of which he even assessed. (13 AA 3039 (emphasis added); see
also 2 RT [1/6/14 Hrg. Tr.] at 61:1-9.) This evidence cannot reliably
inform this Court of Appellants' exposure levels to the Subject Chemicals
and "merely provides 'a dwindling stream of probabilities that narrow into
conjecture." (Nardizi v. Harbor Chrysler Plymouth Sales (2006) 136
Cal.App.4th 1409, 1415.)
The failings inherent to the indoor air modeling of Appellants' soil
chemist necessarily doom the opinions of their toxicologist, Vera S. Byers,
because she relies on Dr. Rosenfeld's modeling "to ascertain the doses to
which the [Appellants] were exposed." (13 AA 3084.) Since "an expert
opinion is worth no more than the reasons upon which it rests" (Kelley v.
Trunk (1998) 66 Cal.App.4th 519, 524), the trial court was justified in
sustaining all the objections to Byers' report for "[relying] on assumptions
not supported by the evidence." (15 AA 3470; see also id. at 3471 (Byers'
opinions "are based on speculative SWAPE opinions as to the degree and
duration of the exposure").)
Dr. Byers also explicitly bases her conclusions on the assumption
that "these chemicals to which the plaintiffs were exposed were at the level
which would cause or substantially contribute to their illnesses." (Id. at
3084.) Of course, experts are not allowed to use circular logic and cannot
simply assume the very issues they aim to address. (See Sargon Enters.,
Inc. v. Univ. of S. Cal. (2012) 55 Cal.4th 747, 777.) The trial court further
-26-
noted that Dr. Byers "fail[ed] to render her causation opinion in terms of a
"reasonably medical probability" as required by Bockrath, supra, 21
Ca1.4th at 79, since for many of Appellants she merely concluded that
"there [was] an 'association' between exposure to the [Subject Chemicals]
and [Appellants'] claimed illnesses." (15 AA 3470-3471.) Thus, Dr.
Byers' conclusions are not only unreliable, but also fail to supply an
appropriate basis to infer causation.
In contrast, Dr. Barbara D. Beck, a highly qualified toxicological
expert, considered actual indoor air data from the ROP Site to determine
whether qualitative scientific evidence exists to support a causal
relationship between Appellants' claimed ailments and the Subject
Chemicals at the highest potential exposure concentration in the ROP Site.
(9 AA 1959-1960.) Despite making conservative assumptions favoring
Appellants, Dr. Beck concluded that "there is •no reliable qualitative
and/or quantitative evidence that a causal association exists between
Appellants' potential exposures to the [Subject Chemicals] and their
claimed health effects." (Id. at 1960) (emphasis added.) Dr. Beck found
that even for the claimed health effects for which an association with one or
more of the [Subject Chemicals] could be consideied possible, Appellants'
exposures/doses were insufficient to support causal relationships." (Ibid.)
For instance, even when Dr. Beck evaluated Appellants' potential
exposure in an unrealistic manner which favored Appellants—assuming a
full-time exposure to the highest statistically calculated concentrations for
each Subject Chemical in each building (even though Appellants could not
be in two places at once)—the possible risks did not exceed the EPA's
acceptable cancer risk range or the accepted hazard index for non-cancer
risks. (Ibid.) Accordingly, Dr. Beck concluded "to a reasonable degree of
-27-
scientific certainty, that it is highly unlikely that [Appellants'] potential
exposures to [the Subject Chemicals] in indoor air at the ROP or WCCC
buildings could have caused or actually caused their claimed health effects
or could cause adverse health effects in the future." (Ibid.)
Without reliable evidence of a causal association between the
Subject Chemicals and the health effects about which they complain,
Appellants fail to meet the legal standard of showing with a "reasonable
medical probability" that they were exposed at the ROP Site to any levels
of the Subject Chemicals sufficient to cause any of the adverse health
effects about which they complain. (Bockrath, supra, 21 Ca1.4th at 79; see
also Cottle, supra, 3 Cal.App.4th at 1384.) The law cannot ignore "the
nature, magnitude, or proportion of the exposure" in evaluating the viability
of Appellants' toxic tort claims. (Potter, supra, 6 Ca1.4th at 989.) Because
Appellants cannot prove causation as a matter of law, there are no disputed
facts for the court to consider, and summary judgment as to all of
Appellants' causes of action was proper.
-28-
B
V. CONCLUSION
For the foregoing reasons. Respondent Fred R. Rippy. Inc.
respectfully requests that this Court affirm the judgment of the trial court
granting its motion for summary judgment.
Dated: January 20, 2015 Squire Patton Boggs (US) LLP
Chris M. Amantea Adam R. Fox Helen H. Yang
-29-
B
CERTIFICATE REGARDING WORD COUNT
Pursuant to Rule 8.204, subdivision (c)(1) of the California Rules of
Court, and in reliance on the word count of the computer program used to
prepare this brief, counsel certifies that this brief was produced using 13
point type and contains 6,780 words, exclusive of the certificate of
interested entities or persons, table of contents, table of authorities, the
cover information and this Certificate Regarding Word Count.
Dated: January 20, 2015 Squire Patton Boggs (US) LLP
Chris M. Amantea Adam R. Fox Helen H. Yang
-30-
PROOF OF SERVICE
(Pursuant to California State Law)
The undersigned certifies and declares as follows:
I am a resident of the State of California and over 18 years of age and am not a party to this action. My business address is 555 South Flower Street, 31st Floor, Los Angeles, California 90071, which is located in the county where any non-personal service described below took place.
On January 20, 2015, a copy of the following document(s):
RESPONDENT'S BRIEF
was served on:
See attached Service List
Service was accomplished as follows.
• By personal delivery by USA Network, Inc. Attorney Services of the document(s) listed above to the person(s) at the address(es) set forth above.
• By Federal Express Service Carrier. On the above date, I sealed the above document(s) in an envelope or package designated by Federal Express, an express service carrier, addressed to the above, and I deposited that sealed envelope or package in a box or other facility regularly maintained by the express service carrier, or delivered that envelope to an authorized courier or driver authorized by the express service carrier to receive documents, located in Los Angeles, California with delivery fees paid or otherwise provided for. •
CI By E-mail. by transmitting via e-mail or electronic transmission the document(s) listed above to the person(s) at the e-mail address(es) set forth below.
I certify and declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 20, 2015, at Los Angeles, California.
Phannie Ts
-31 -
SERVICE LIST
VIA PERSONAL DELIVERY
DANIEL E. PARK [email protected] SHAHRAM A. SHAYESTEH [email protected] CHRISTOPHER C. CIANCI [email protected] PARK & SYLVA 3731 Wilshire Blvd., Suite 600 Los Angeles, CA 90010 Telephone: (213) 769-4616 Facsimile: (818) 479-9958
Department 15 Judge Richard L. Fruin, Superior Court Clerk Los Angeles Superior Court 111 N. Hill Street Los Angeles, CA 90012
Counsel for Appellants
VIA FEDERAL EXPRESS
Frank Sandelmann Dinsmore & Sandelmann, LLP 324 Manhattan Beach Blvd., Suite 201 Manhattan Beach, CA 90266 Tel: (310) 318-1220 Fax: (310) 318-1223 E: [email protected]
Cdunsel for Defendant Francine Rippy
VIA ELECTRONIC DELIVERY
California Supreme Court
-32-
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