Case 2:20-cv-06088-DSF-PJW Document 1 Filed 07/08/20 Page 1 of 37 Page ID #:1
`
`
`THOMAS J. BOIS, II (Bar No. 110250)
`JAMES C. MACDONALD (Bar No. 175760)
`BOIS & MACDONALD
`2030 Main Street, Suite 660
`Irvine, CA 92614
`Telephone: (949) 660-0011
`Facsimile: (949) 660-0022
`E-mail: tbois@boismac.com;
`jmacdonald@boismac.com
`
`Attorneys for Plaintiff
`SLOW RIVER, LLC, a California Limited
`Liability Company
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
`
`
` CASE NO.: 2:20-cv-6088
`SLOW RIVER, LLC, a California
`)
`
`Limited Liability Company,
`)
`COMPLAINT FOR:
`
`)
`
`Plaintiff,
`)
`(1) STRICT LIABILITY
`
`)
`
`(RCRA-42 U.S.C. § 6972);
`vs.
`)
`(2)
`(CAL HEALTH AND SAFETY
`
`)
`
`CODE HWCL– §25100 ET
`Estate of JAMES JONES (Deceased)
`)
`
`SEQ.);
`an individual dba JIFFY FOOD
`)
`(3) CONTINUING PUBLIC
`STORE; Estate of DOUGLAS
`)
`
`NUISANCE;
`CARPENTER (Deceased) an
`)
`(4) CONTINUING PRIVATE
`individual dba JIFFY FOOD STORE;
`)
`
`NUISANCE;
`E-Z SERVE PETROLEUM
`)
`(5) NUISANCE PER SE;
`MARKETING COMPANY, a
`)
`(6) BREACH OF
`forfeited Delaware corporation; E-Z
`)
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`CONTRACT/LEASE;
`SERVE PETROLEUM
`)
`(7) NEGLIGENT
`MARKETING COMPANY OF
`)
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`INTERFERENCE WITH
`CALIFORNIA, a suspended
`)
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`PROSPECTIVE BUSINESS
`California corporation;
`)
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`ADVANTAGE;
`RESTRUCTURE PETROLEUM
`)
`(8)
`INTENTIONAL
`MARKETING SERVICES OF
`)
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`INTERFERENCE WITH
`CALIFORNIA, INC., a suspended
`)
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`PROSPECTIVE BUSINESS
`California corporation; ERSIN
`)
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`ADVANTAGE;
`AKSOY an individual; BAY
`)
`(9) UNFAIR COMPETITION
`
`AREA/DIABLO PETROLEUM, CO., )
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`(CAL. BUS. & PROF CODE
`a California corporation doing
`)
`
`§ 17200)
`business as GOLDEN GATE
`)
`(10) STATUTORY FAILURE TO
`PETROLEUM COMPANY; and
`)
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`DISCLOSE (CAL. HEALTH
`DOES 1-10, inclusive,
`)
`
`AND SAFETY CODE
`
`)
`
`§ 25359.7);
`Defendants.
`)
`(11) EQUITABLE INDEMNITY;
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`(12) DECLARATORY RELIEF
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`
`(STATE AND FEDERAL)
`DEMAND FOR JURY TRIAL
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`
`
`
`
` 32718
`
`-1-
`Complaint
`
`

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`Case 2:20-cv-06088-DSF-PJW Document 1 Filed 07/08/20 Page 2 of 37 Page ID #:2
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`Plaintiff SLOW RIVER, LLC, a California Limited Liability Company,
`(hereinafter "Plaintiff”) alleges as follows:
`JURISDICTIONAL ALLEGATIONS
`This court has jurisdiction over this subject matter because federal
`1.
`questions exist pursuant to 42 U.S.C. § 6972(b)(2)(A) (“RCRA”).
`Venue is proper in this district under 28 U.S.C. § 1391(b) because the
`2.
`claims arise at properties located at 995 Los Osos Valley Road, Los Osos, California
`(“Impacted Site”). The Impacted Site is located within the boundaries of this court’s
`jurisdiction.
`This court has jurisdiction to hear the state law and common law claims
`3.
`brought because they arise out of the same common nucleus of facts, acts and
`occurrences as the federal questions presented. Furthermore, considerations of judicial
`economy, convenience and fairness to the parties require the claims be tried together in
`one jurisdictional proceeding.
`FACTUAL ALLEGATIONS
`JAMES JONES is an individual that did business as JIFFY FOOD
`4.
`STORE and is deceased with an estate established after his death whom did business
`and operated in the State of California and owned or operated on the Impacted Site
`from approximately 1971 through 1986.
`DOUGLAS CARPENTER is an individual that did business as JIFFY
`5.
`FOOD STORE and is deceased with an estate established after his death whom did
`business and operated in the State of California and owned or operated on the Impacted
`Site from approximately 1971 through 1986.
`E-Z SERVE PETROLEUM MARKETING COMPANY is a forfeited
`6.
`Delaware corporation that did business and operated in the State of California and
`owned or operated on the Impacted Site from approximately 1986-1992.
`E-Z SERVE PETROLEUM MARKETING COMPANY OF
`7.
`CALIFORNIA is a suspended California corporation that did business and operated in
`
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`32718
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`-2-
`Complaint
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`

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`Case 2:20-cv-06088-DSF-PJW Document 1 Filed 07/08/20 Page 3 of 37 Page ID #:3
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`the State of California and owned or operated on the Impacted Site from approximately
`1986-1992.
`RESTRUCTURE PETROLEUM MARKETING SERVICES OF
`8.
`CALIFORNIA, INC. (“Restructure”) is a suspended California corporation that did
`business and operated in the State of California and owned or operated on the Impacted
`Site from approximately 1986-1992.
`ERSIN AKSOY is an individual that did business and operated in the
`9.
`State of California and owned or operated on the Impacted Site from approximately
`1993-1997.
`10. BAY AREA/DIABLO PETROLEUM, CO. is a California corporation
`doing business as GOLDEN GATE PETROLEUM COMPANY that did business and
`operated in the State of California, and owned the Impacted Site from at least
`approximately 1997 through 2007, and operated on the Impacted Site from 1997
`through the present (hereinafter referred to as “Bay Area/Diablo”).
`11. Plaintiff is unaware of the true names and capacities, whether individual,
`associate, and corporate or otherwise, of Defendants Does 1-10, and therefore sues
`such Defendants by fictitious name. Plaintiff alleges that Does 1-10, and each of them,
`were doing business within the State of California during the relevant time frame.
`Plaintiff will seek leave of this Court to amend the Complaint when the identities of
`these persons or entities are ascertained.
`12. Plaintiff is informed and believes and thereon alleges at all relevant times
`herein mentioned, each of the Defendants were the agent, representative, principal,
`servant, employee, partner, alter ego, joint venturer, successor-in-interest, assistant,
`and/or consultant of each and every remaining Defendant, and as such, was at all times
`acting within the course, scope, purpose and authority of such agency, partnership,
`employment and/or venture, and with the express or implied knowledge, permission,
`authority, approval, ratification and consent of the remaining Defendants, whether said
`authority was actual, ostensible, or apparent; and each Defendant was negligent and
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`32718
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`-3-
`Complaint
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`

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`Case 2:20-cv-06088-DSF-PJW Document 1 Filed 07/08/20 Page 4 of 37 Page ID #:4
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`reckless in the selection, hiring, and supervision of each and every other Defendant as
`an agent, representative, principal, servant, employee, partner, alter ego, joint venturer,
`successor-in-interest, assistant, and/or consultant. Plaintiff at all material times
`beginning in 2007 has been the fee owner of the Impacted Site.
`13. Plaintiff alleges that since at least 1971 the Defendants, and each of them,
`stored and used, allowed the storage and use, or authorized the storage and use of:
`liquid, solid and hazardous wastes, including but not limited to:
`waste oils; motor oils; oil; petroleum hydrocarbons; gasoline; diesel; benzene, toluene,
`ethylbenzene, xylenes (“BTEX”); methyl-tertiary-butyl-ether (“MTBE”); and tertiary
`butyl alcohol (“TBA”) (collectively “Hazardous Substances” and/or “Hazardous
`Wastes”) as liquid and hazardous wastes and other contaminants in numerous places.
`These places included but were not limited to: aboveground drums; barrels and other
`storage containers; aboveground storage tanks; underground storage tanks;
`aboveground pipe lines; underground pipe lines; dispensing systems; sumps; surface
`impoundments; surface gutters; surface troughs; clarifiers; slab drains; sewer laterals;
`and holding basins and other facility receptacles. Plaintiffs further allege these
`Hazardous Substances and Hazardous Wastes releases are now present on the Impacted
`Site in soil, soil vapor and/or groundwater. Plaintiffs further allege the Defendants
`owned and/or operated a treatment, storage and/or disposal facility as defined by
`RCRA in performing these operations.
`14. Plaintiff alleges on occasion, the waste storage containers, devices, and
`other improvements allowed sudden and accidental leaking, discharging and disposing
`of the liquid, solid and hazardous wastes and other contaminants stored in them into
`the soil and groundwater at and beneath the Impacted Site and extending beneath
`surrounding areas. Since the date the waste storage containers, devices and other
`improvements began to suddenly and accidentally leak, discharge and dispose of the
`liquid, solid and hazardous wastes and other contaminants stored in them, said wastes
`have been disposed, discharged, released, spilled, leaked, leached and/or migrated into
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`32718
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`-4-
`Complaint
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`

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`Case 2:20-cv-06088-DSF-PJW Document 1 Filed 07/08/20 Page 5 of 37 Page ID #:5
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`the soil and groundwater at and beneath the Impacted Site. Thereafter, continuing to
`the present, said liquid, solid, Hazardous Substances and Hazardous Wastes from the
`Impacted Site have leached, migrated and caused damage, including the contamination
`of the soil and groundwater at, beneath and adjacent to the Impacted Site.
`15. Plaintiff alleges that the Defendants have handled, stored, treated,
`transported and/or disposed of Hazardous Substances and Hazardous Wastes at the
`Impacted Site in a manner which caused those wastes to suddenly and accidentally
`contaminate the soil and groundwater at, beneath and adjacent to the Impacted Site and
`thus caused an imminent and substantial endangerment to health or the environment.
`In the most recent round of groundwater testing performed by the
`16.
`Defendants, benzene contamination was detected as high as 2300 micrograms per liter
`(“ug/l”) (also referred to as parts per billion (“ppb”)). These concentrations
`substantially exceeding both the federal and California state governments have set
`Maximum Contaminant Levels (“MCL’s”) and/or cleanup goals for benzene (almost
`800 times the Federal MCL, and 2300 times the State MCL and/or cleanup goal).
`These MCL and/or cleanup goal standards establish permissible concentration levels
`for contaminants occurring in drinking water to prevent cancer exposure. The
`California MCL and/or cleanup goal for benzene is 1 ppb, and the Federal MCL is 5
`ppb. Based on these carcinogenic contamination concentrations, Plaintiffs allege on
`information and belief that Benzene and BTEX contamination located on the Impacted
`Site released by the Defendants will be identified by the Regional Board as chemicals
`of concern that it will direct be further investigated and remediated. Plaintiffs further
`allege these Petroleum Wastes may potentially be drawn into the remediation system
`and/or underneath and into Plaintiffs’ buildings when and if soil and/or groundwater
`remediation is performed.
`17. Plaintiff alleges in 2003 Bay Area/Diablo Defendants misrepresented
`facts to the State Water Resources Control Board (“State Board”) concerning the
`source of pollution present at the Impacted Site. This misrepresentation ultimately
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`32718
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`-5-
`Complaint
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`

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`Case 2:20-cv-06088-DSF-PJW Document 1 Filed 07/08/20 Page 6 of 37 Page ID #:6
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`resulted in a denial of the ability to access funds available from the State Board to
`investigate and remediate the Impacted Site in 2004. Plaintiff alleges it had no
`knowledge of these activities at the time of purchase of the Impacted Site and did not
`learn of these facts before at least March 2018.
`18. On June 4, 2004 Defendants Restructure and Bay Area/Diablo were
`designated as Responsible Parties by the Central Coast Regional Water Quality Control
`Board ("Regional Board") for the pollution present on the Impacted Site and directed
`to investigate and remediate pollution present on the Impacted Site. Plaintiff alleges it
`had no knowledge of these activities at the time of purchase of the Impacted Site and
`did not learn of these facts before at least March 2018.
`19. Plaintiff purchased the Impacted Site from Bay Area/Diablo and/or Does
`1-5 (hereinafter referred to as “Bay Area/Diablo Defendants”) in 2007.
`20. Plaintiff alleges Bay Area/Diablo Defendants had owned and operated
`many other polluted properties at the time of purchase. Plaintiff further alleges the Bay
`Area/Diablo Defendants that sold the Impacted Site had also operated at the Impacted
`Site for at least ten (10) years and performed the operations that released Hazardous
`Substances and Hazardous Wastes onto the Impacted Site. Therefore, in addition to
`knowledge gained from other sites where Bay Area/Diablo Defendants’ operations had
`polluted other properties, they possessed at least ten (10) years of operational and
`ownership history concerning the Impacted Site at the time of Plaintiff’s purchase.
`Furthermore, as demonstrated by the application submitted by the Bay Area/Diablo
`Defendants to the State Board in 2003, and the failure to comply with directives from
`the Regional Board to further investigate and remediate the Impacted Site, Bay
`Area/Diablo knew significant pollution existed on the Impacted Site at the time of
`purchase that had not been remediated. However, such defendants purposely refused
`to disclose this information to Plaintiff as part of the sale of the Impacted Site, and in
`fact purposely misrepresented the amount and scope pf contamination present to
`Plaintiff.
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`32718
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`-6-
`Complaint
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`

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`Case 2:20-cv-06088-DSF-PJW Document 1 Filed 07/08/20 Page 7 of 37 Page ID #:7
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`21. As a result, Plaintiff alleges that Bay Area/Diablo Defendants had both
`general and specific prior expertise and experience in operating on, causing pollution
`to and/or selling properties such as the Impacted Site. Such expertise and experience
`should have allowed Bay Area/Diablo Defendants to determine the nature and extent of
`pollution that existed on the Impacted Site at the time of sale to provide notice of the
`same to Plaintiff. Plaintiff alleges it in contrast had no significant prior experience and
`expertise in acquiring polluted properties. Plaintiff further alleges under information
`and belief that no discount in the purchase price of the Impacted Site was factored into
`the sale price for the Impacted Site relating to the then existing environmental pollution
`on the Impacted Site at the time of purchase.
`22. As a result of the facts alleged above in Paragraphs 17 through 21,
`Plaintiff alleges Bay Area/Diablo Defendants were in a superior position of knowledge
`concerning the nature, extent, impacts and legal ramifications of the existing pollution
`at the Impacted Site at the time of the purchase of the Impacted Site was superior to
`Plaintiff. Plaintiff further alleges these defendants were in a superior bargaining
`position compared to Plaintiff when negotiating and drafting any environmental
`allocation provisions as part of the purchase and/or the Lease.
`23. After Plaintiff’s purchase Plaintiff then leased the Impacted Property to
`Bay Area/Diablo Defendants without any interruptions in the operations. Pursuant to
`the Lease provisions remediation of any Hazardous Substances or Hazardous Wastes is
`the sole responsibility of Bay Area/Diablo Defendants. Bay Area/Diablo Defendants
`are also responsible to maintain the Premises in compliance with all laws (Lease,
`Section 4.2), responsible and liable for any Hazardous Substances at the Impacted
`Property (as specifically defined in the Lease, including any “PreExisting
`Environmental Condition” (Lease, Section 4.4(c )). Moreover, the Lease, which was
`drafted by Bay Area/Diablo Defendants, contains a representation by Bay Area/Diablo
`Defendants that "…based on the environmental information in the files of Tenant and
`Original Landlord [i.e. Bay Area/Diablo], there are no known Pre-Existing
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`32718
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`-7-
`Complaint
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`

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`Case 2:20-cv-06088-DSF-PJW Document 1 Filed 07/08/20 Page 8 of 37 Page ID #:8
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`Environmental Conditions on the date of this Lease, and based on such information,
`the possibility of such a Pre-Existing Environmental Condition is remote…". (Lease,
`Section 4.4(d)).
`24. On July 25, 2016 the Bay Area/Diablo Defendants were issued a second
`directive letter by the Regional Board to perform further investigation of the pollution
`present on the Impacted Site. The Bay Area/Diablo Defendants refused to comply with
`this directive letter. Plaintiff alleges it had no knowledge, and no reason to reasonably
`know of, the issuance of this letter, or the impact of the activities described above at
`the time of purchase of the Impacted Site, and did not learn of facts that would have
`put it on notice of its claims until at least March of 2018.
`25. Plaintiff alleges the Bay Area/Diablo Defendants purposefully withheld
`the activities that have given rises to these causes of action, and the prior July 26, 2016
`Regional Board notice from Plaintiff, and refused to disclose to Plaintiff that it had
`received this directive letter from the Regional Board. Plaintiff was not separately sent
`this notice by the Regional Board or any other entity and did not know that the letter
`had been issued.
`26. Plaintiff alleges it did not become aware of the wrongful actions engaged
`in by the Bay Area/Diablo Defendants, or the presence of significant pollution or
`Hazardous Substances or Hazardous Wastes on the Impacted Site, until Plaintiff
`attempted to sell the Impacted Site in 2018. At that time a potential buyer of the
`Impacted Site commissioned a report which identified potential environmental
`concerns for the Site dated March 13, 2018, which was provided to Plaintiff shortly
`thereafter. Plaintiff alleges its receipt of this report was the first date on which Plaintiff
`became aware that any significant issues existed concerning the pollution that had been
`released by Defendants at the Site. Plaintiff also alleges that because of the presence of
`the pollution on the Site as identified in the March 13, 2018 report, the potential buyer
`for the Impacted Site ultimately refused to consummate the purchase of the Impacted
`Site.
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`32718
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`-8-
`Complaint
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`

`

`Case 2:20-cv-06088-DSF-PJW Document 1 Filed 07/08/20 Page 9 of 37 Page ID #:9
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`27. Plaintiff alleges it acted timely after it was put on notice of the potential
`presence of pollution on the Impacted Site. On or about September 27, 2018 Plaintiff
`issued a Notice of Intent to Sue to Defendants under the applicable federal statutes
`relating to the Hazardous Substance and Hazardous Wastes detected on the Impacted
`Site. Defendants have failed to respond to this notice. Plaintiff alleges it also issued a
`second May 7, 2019 30 Day Notice to Bay Area/Diablo relating to its Lease
`obligations. Defendants have also failed to respond to this notice.
`28. Plaintiff alleges on or about February 15, 2019 Bay Area/Diablo was
`again specifically provided notice that it had been named as a Responsible Party by the
`Regional Board and directed to investigate the pollution contamination present on or
`beneath the Impacted Site. As a result, on or before July 20, 2019, Bay Area/Diablo
`was directed by the Regional Board to implement the subsurface investigation Work
`Plan submitted by Plaintiff to the Regional Board on February 26, 2019 (and
`subsequently approved by the Regional Board on March 21, 2019). Plaintiff has
`obtained an extension for the implementation of that Work Plan until on or before
`October 20, 2019.
`29. Plaintiff alleges that the Bay Area/Diablo Defendants actively concealed
`the presence of pollution on the Impacted Site by: (1) misrepresenting that pollution
`was not present on the Impacted Site before the purchase of the Impacted Site and
`instead representing “the possibility of such a Pre-Existing Environmental Condition is
`remote”; (2) failing to disclose in writing before purchase that such defendants had
`been ordered to investigate and remediate the pollution then present, but had simply
`refused to comply with such orders; and (3) refusing to provide notice to Plaintiff of
`ongoing directives by the Regional Board after purchase directing the Bay Area/Diablo
`Defendants to investigate and remediate the pollution present on the Impacted Site.
`Plaintiff further alleges that the Bay Area/ Diablo Defendants engaged in these actions
`for the specific purpose of concealing information from Plaintiff to prevent Plaintiff
`from discovering and acting on the pollution present on the Impacted Site. Plaintiff
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`32718
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`-9-
`Complaint
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`

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`Case 2:20-cv-06088-DSF-PJW Document 1 Filed 07/08/20 Page 10 of 37 Page ID #:10
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`also alleges that each and every improper action engaged in by the Bay Area/Diablo
`Defendants since Plaintiff’s purchase of the Impacted Site results in the continuous
`accrual of any causes of action alleged by Plaintiff herein.
`FIRST CLAIM FOR RELIEF
`(For Relief under 42 U.S.C. § 6972(a)(1)(B) - “RCRA"
`Against All Defendants)
`30. Plaintiff repeats and realleges the allegations contained in paragraphs 1
`through 29, inclusive, and incorporates them by reference as though fully set forth.
`31. Pursuant to the notification requirements set forth in § 7002 of the Solid
`Waste Disposal Act, as amended by the Resource Conservation Recovery Act of 1976
`“RCRA”), 42 U.S.C. § 6972(b)(2)(A), Plaintiff has undertaken to notify all Defendants
`of its intention to file this lawsuit. This notice was issued more than 90 days before
`filing of this Complaint and copies of the United States Postal Service return receipts
`for Defendants that returned their return receipts have been collected and retained to
`demonstrate Defendants have received notice of Plaintiff's intention to file this lawsuit.
`32. As more fully set forth herein above, Defendants were operators and/or
`owners of various equipment, buildings or other improvements which performed
`operations at the time of the release or disposal of the contaminants found at the
`FACILITY which constitute “hazardous waste” as that term is defined by RCRA, 42
`U.S.C. § 6903(5)(A)(B) and the duly promulgated regulations contained in 40 C.F.R.
`261 et seq.
`33. Defendants, and each of them, were the only persons and/or entities that
`performed operations and/or handled Hazardous Substances and/or Hazardous Wastes
`on or near the Impacted Site during the period at least 1971 through present which
`could, or likely would, have caused the type of pollution resulting from Defendants’
`operations. Defendants also had substantial control over the Hazardous Wastes at the
`time of disposal or were otherwise actively involved in the waste disposal process.
`The pollutant releases could not, and would not, have occurred but for Defendants'
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`negligent conduct.
`34. The releases and/or disposal of Hazardous Wastes at the FACILITY have
`caused an imminent and/or substantial endangerment to health or the environment, by
`creating a health risk to: workers on the FACILITY; and/or neighboring properties;
`and/or groundwater in the area. This human health risk shall be increased and/or
`exacerbated in the event workers perform soil excavation at or around the Impacted
`Site. Furthermore, the vertical and horizontal migration of the Hazardous Wastes
`released by Defendants potentially endangers the drinking water supplies of a large
`number of the general public. This endangerment is evidenced by the fact that the
`pollution at the FACILITY may have migrated off-site. Hazardous vapors may also
`seep from the subsurface into the air space within the structures on the Impacted Site or
`into the air space of off-site structures to cause imminent and substantial impacts to the
`ambient air at concentrations in ways potentially harmful to human health.
`Defendants’ failure and/or refusal to take corrective action while the pollution
`continues to spread puts the public at risk.
`35. As a matter of law, Plaintiff is entitled to prosecute and maintain this
`lawsuit, to obtain injunctive relief compelling FACILITY remediation, directing
`Defendants to: take action to address the endangerment which exists; participate in the
`pollution site investigation and clean up; pay the costs and expenses incurred by
`Plaintiff in connection with the Impacted Site to date; obtain payment for
`environmental consulting costs for Site assessment to date; and, obtain payment of
`attorneys’ fees pursuant to 42 U.S.C. § 6972(a)(1)(B).
`36. As a matter of law, Defendants are strictly liable for all costs and
`expenses resulting from the releases or discharges of the Hazardous Wastes at the
`FACILITY. As a matter of law, there is an identifiable period of time during which
`pollution of the FACILITY by Defendants occurred. Plaintiff, when permitted by law,
`has or will join as Defendants all persons who operated the Impacted Site during the
`time which the pollution occurred; Plaintiff is entitled to prosecute this claim as a
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`Private Attorney General. As a result, Defendants are jointly and severally liable for
`conducting all necessary Site assessment and/or remediation of releases or discharges
`of the Hazardous Wastes at the FACILITY relating to the areas of pollution caused by
`one or more Defendants.
`37. Further, as a result of Defendants’ disposal of the Hazardous Wastes on
`the FACILITY, Plaintiff as owner of the FACILITY has incurred environmental
`consulting costs to identify and characterize the nature and extent of the pollution
`caused by Defendants and each of their respective releases or disposals of Hazardous
`Wastes at the FACILITY.
`38. The regulated Hazardous Wastes described above have actually seeped
`into the soils and/or ground water at the FACILITY and polluted the Impacted Site.
`The Hazardous Wastes released by Defendants’ daily cause ongoing direct and actual
`harm to The Impacted Site for which remedial and preventative measures must be
`taken. As a direct and proximate result of Defendants and each of their releases and
`disposals of Hazardous Wastes at the FACILITY, Plaintiff has been damaged and
`caused to incur environmental agency oversight costs in a sum not yet fully
`ascertained, and to be proved at the time of trial. Based on the foregoing, Plaintiff is
`entitled to and hereby demands reimbursement from each Defendant for all of the costs
`necessary to respond to Defendants' pollution and each of their releases or disposals of
`Hazardous Wastes which have injured and continue to injure the Impacted Site; Private
`Attorney General attorneys’ fees; and,
`injunctive relief compelling
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`implementation of remedial action.
`SECOND CLAIM FOR RELIEF
`(Recovery Pursuant to the HWCL
`Against All DEFENDANTS)
`Plaintiff repeats and realleges the allegations contained in Paragraphs 1
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`through 38, inclusive and incorporates them by reference as though fully set forth.
`The Hazardous Substances Accounts Act (“HSAA”) provides
`40.
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`Defendants are “Persons” as defined by California Health and Safety Code §§ 25319.
`The HSAA provides Defendants are “Responsible Parties” as defined
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`by California Health and Safety Code § 25323.5 and CERCLA 42 U.S.C.
`§§ 9607(a)(1), 9607(a)(2) and 9607(a)(4).
`The California Hazardous Waste Control Law (“HWCL”), (Health &
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`Safety Code §§25100 et seq.) provides that Plaintiff may recover from Defendant
`Responsible Persons under the HSAA for its removal and/or remedial action costs
`incurred or to be incurred to remove and/or remedy the alleged releases or threatened
`releases of Hazardous Wastes at the Impacted Site.
`Plaintiff alleges Defendants have released Hazardous Wastes at the
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`Impacted Site, and/or have equitably and/or contractually assumed liability for such
`releases, within the meaning of California Health and Safety Code §§ 25320-25321.
`Plaintiff alleges it has incurred, and will continue to incur, costs to
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`perform “removal” and/or “remedial” actions to respond to the Hazardous Substances
`and Hazardous Wastes released by Defendants, and/or to respond to releases that
`Defendants have equitably and/or contractually assumed liability for, at the Impacted
`Site within the meaning of California Health & Safety Code §§ 25322-25323 and
`comparable sections of the HWCL.
`Plaintiff is informed and believes and thereon alleges Defendants also
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`violated: California Civil Code §§ 3479, 3480 and 3481; RCRA, 42 U.S.C. § 6972, et
`seq.; California Water Code (Dickey Act (Water Code §13010, et seq., repealed 1969);
`Porter-Cologne Act (Water Code § 13020, et seq.), by causing and/or permitting the
`discharge or release of the Hazardous Substances and/or Hazardous Wastes into the
`environment; California Water Code § 13304(a) (which provides that “[a] person who
`has discharged or discharges waste into the waters of this state . . . and creates . . . a
`condition of pollution or nuisance”), § 13050 (m)(1), 13265(c) and (d); and 13350(b);
`and, California Fish & Game Code § 2560. These resulted in violations of law which
`in turn support liability under Plaintiff’s HSAA claim.
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`Complaint
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`Case 2:20-cv-06088-DSF-PJW Document 1 Filed 07/08/20 Page 14 of 37 Page ID #:14
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`Plaintiff alleges Defendants are Responsible Parties and therefore
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`Plaintiff is entitled to recovery from Defendants pursuant to the HWCL, including but
`not limited to all present and future costs of pollution investigation, remediation and
`attorneys’ fees.
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`THIRD CLAIM FOR RELIEF
`(For Continuing Public Nuisance against All Defendants)
`47. Plaintiff repeats and realleges the allegations contained in Paragraphs 1
`through 46, inclusive, and incorporates them by reference as though fully set forth.
`48. Defendants, and each of them, were the only persons and/or entities that
`owned and/or performed operations and/or handled Hazardous Substances and/or
`Hazardous Wastes on or near the FACILITY. Defendants owned and/or operated the
`FACILITY during the period at least 1971 through present. Defendants’ pollutant
`releases could not, and likely would not, have occurred but for Defendants’ negligent
`conduct.
`49. At all material times, Defendants have allowed and permitted Hazardous
`Substance