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Cadillac Fairview/Cal., Inc. v. Dow Chem. Co.

Citation: 19 ELR 20965
No. Nos. CV 83-7996 JMI (Bx), -8034 JMI (Bx), (C.D. Cal., 01/18/1989) Motions to dismiss granted in part

The court holds that a private plaintiff that alleges that it is an innocent landowner under CERCLA §101(35) may pursue recovery of cleanup costs without first being held legally liable, and plaintiff's state causes of action are not time barred by the statute of limitations. The court first holds that CERCLA §101(35) does not prevent an innocent owner from seeking response costs prior to any determination of liability. The court next holds that plaintiff has no private right to injunctive relief against owners and operators. The court holds that plaintiff's state law claims of nuisance, ultrahazardous activity, and negligence, which were filed in 1983, are not barred by California's three-year statute of limitations. CERCLA §309, added by the Superfund Amendments and Reauthorization Act of 1986, requires use of the federally required commencement date when the commencement date required by state law precedes the federal date. In this case, the federal date of 1981 applies and this action was filed in 1983, well within the three-year period. Finally, the court holds that while plaintiff's allegations sufficiently describe a public nuisance claim, plaintiff's damage claims based on the disturbance of rights in land allege a private nuisance. Therefore, plaintiff may not collect for private nuisance damages under a public nuisance theory. Plaintiff was specially harmed only in the exercise of its private property rights and suffered no particular damage in the exercise of a right common to the general public.

[Previous cases in this litigation are published at 14 ELR 20376 and 20716; and 18 ELR 20470.]

Counsel for Plaintiff
Greg Smith, David Shultz
Irell & Manella
1800 Avenue of the Stars, Ste. 900, Los Angeles CA 90067
(213) 203-7619

Counsel for Defendants
Susan L. Jacobs
9150 Flair Dr., Elmonte CA 91731
(818) 572-6406