Case 5:22-cv-01512 Document 1 Filed 08/26/22 Page 1 of 22 Page ID #:1
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`Jad T. Davis (SBN 219947)
`Thomas V. Wynsma (SBN 293713)
`SHOOK, HARDY & BACON L.L.P.
`5 Park Plaza, Suite 1600
`Irvine, California 92614
`Telephone: 949-475-1500
`Facsimile: 949-475-0016
`jtdavis@shb.com
`
`Attorneys for Plaintiff
`ANDORRA APTS, LLC
`
`
`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
`
`
`
`
`ANDORRA APTS, LLC, a California
`limited liability company,
`
`Plaintiff,
`
`v.
`
`FABRICURE COACHELLA VALLEY,
`LLC, a California limited liability
`company, and DOES 1-10, inclusive
`
`Defendants.
`
`
`
` Case No.
`
`COMPLAINT FOR DAMAGES AND
`OTHER RELIEF:
`(1) COST RECOVERY UNDER
`CERCLA, 42 U.S.C. § 9607(a);
`(2) CONTRIBUTION UNDER
`CERCLA, 42 U.S.C. § 9613(f);
`(3) DECLARATORY RELIEF
`UNDER CERCLA, 42 U.S.C. §
`9613(g)(2);
`(4) STRICT LIABILITY UNDER
`RCRA, 42 U.S.C. § 6972;
`(5) RESPONSE COSTS UNDER
`THE HAZARDOUS
`SUBSTANCE ACCOUNT ACT
`(6) EQUITABLE COMPARABLE
`INDEMNITY
`(7) TOTAL EQUITABLE
`INDEMNITY
`(8) PRIVATE NUISANCE
`(9) TRESPASS
`(10) NEGLIGENCE
`(11) DECLARATORY RELIEF
`
`AND DEMAND FOR JURY TRIAL
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`
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`Plaintiff ANDORRA APTS, LLC, by and through its undersigned attorneys,
`
`files this Complaint and alleges as follows:
`PARTIES AND INTRODUCTORY ALLEGATIONS
`Plaintiff ANDORRA APTS, LLC (Andorra) is, and was at all relevant
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`1.
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`4886-9387-2415 v2
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`5:22-cv-1512
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`Case 5:22-cv-01512 Document 1 Filed 08/26/22 Page 2 of 22 Page ID #:2
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`times, a California limited liability company that owns the real property located at
`81720 Avenue 46, Indio, California 92201 (Andorra Property).
`2.
`Andorra
`is
`informed and believes
`that Defendant FABRICURE
`COACHELLA VALLEY, LLC (Defendant Fabricure) is a California limited liability
`company that owns real property located at 81778 Avenue 46, Indio, California 92201
`(Fabricure Property).
`3.
`Allegations made in this Complaint are based upon information and
`belief, except those allegations that pertain to Andorra, which are based on personal
`knowledge. The allegations of this Complaint stated on information and belief are
`likely to have evidentiary support after a reasonable opportunity for further
`investigation and/or discovery.
`4.
`The true names and capacities, whether individual, corporate, associate or
`otherwise, of Defendants DOES 1 through 100, inclusive, are unknown to Andorra
`who therefore sues said DOE Defendants by such fictitious names. Each of the
`Defendants designated herein as a DOE is legally responsible in some manner for the
`events and happenings herein alleged, and Andorra’s damages as alleged herein were
`proximately caused by such DOE Defendants. Andorra will ask leave of Court to
`amend this Complaint and insert the true names and capacities of said DOE
`Defendants when the same have been ascertained.
`5.
`Defendant Fabricure and DOE Defendants are collectively referred to as
`Defendants.
`6.
`At all times material herein, each Defendant was the agent, servant and
`employee of certain remaining Defendants, acting within the purpose, scope and
`course of said agency, service and employment, with the express and/or implied
`knowledge, permission and consent of those remaining Defendants, and each of them,
`and each of said Defendants ratified and approved the acts of the other Defendants.
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`Case 5:22-cv-01512 Document 1 Filed 08/26/22 Page 3 of 22 Page ID #:3
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`JURISDICTION AND VENUE
`7.
`The Court has jurisdiction over this civil action under Title 28 U.S.C.
`section 1331 and Title 42 U.S.C. sections 9607 and 9613(b). The Court has
`supplemental jurisdiction over state law claims under Title 28 U.S.C. section 1367
`because the federal and state claims arise from a common nucleus of operative facts.
`8.
`Venue is proper in this District under Title 28 U.S.C. section 1391(b) and
`Title 42 U.S.C. section 9613(b) because the alleged releases and/or threatened releases
`occurred in this district.
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`GENERAL ALLEGATIONS
`9.
`The property at issue in the lawsuit is a 186 unit residential apartment
`complex located at the Andorra Property, which is owned by Plaintiff Andorra.
`10. Andorra is informed and believes that Defendants are the owner of the
`Fabricure Property. The Fabricure Property is located adjacent and to the south of the
`Andorra Property.
`11. Andorra is informed and believes that the Fabricure Property is, and has
`been, occupied by a dry cleaning and commercial laundry facility, wherein
`tetrachloroethylene (PCE) was used, from about 1975 to the present.
`12. On March 27, 2019, a Phase I Environmental Site Assessment Report for
`the Andorra Property identified a Recognized Environmental Condition (REC) due to
`the various dry cleaning facilities that have operated at the Fabricure Property from
`1975 to present. The Phase I Report states that Marshall’s Cleaners and Laundry
`operated a dry cleaning business at the Fabricure Property from at least 1983 to the
`present. The Phase I Report also states that South Coast Air Quality Management
`District (SCAQMD) records indicate that in 1983 Marshall’s Cleaners and Laundry
`utilized a “synthetic solvent” PERMAC brand dry cleaning system at the Fabricure
`Property. In 1988, the SCAQMD issued permits for two Lindus brand dry cleaning
`machines which, on information and belief, Andorra alleges use PCE. The Phase I
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`Case 5:22-cv-01512 Document 1 Filed 08/26/22 Page 4 of 22 Page ID #:4
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`Report opines that dry cleaning operations typically use chlorinated solvents,
`particularly PCE, during the dry cleaning process. These solvents, even when
`properly stored and handled, can readily migrate into the subsurface as a result of
`small releases associated with on-site operations. The Phase I Report also opines that,
`based on the number of years of operation (from at last 1975 to the present), time
`period of operations (which included operation during a time that pre-dates regulatory
`oversight of hazardous substances and petroleum products), utilization of PCE and the
`cleaner’s proximity to the Andorra Property, the potential exists that, if a release of
`chlorinated solvents occurred at the Fabricure Property, the subsurface of the Andorra
`Property may have also been impacted. The Phase I Report recommends further
`investigation to assess whether a vapor phase migration concern exists at the Andorra
`Property. The Phase I Report does not state or opine that any hazardous substances
`were released or disposed of during any operations at the Andorra Property.
`13. On May 8, 2019, a Phase II Subsurface Investigation Report was
`prepared following a limited subsurface soil and soil vapor investigation that was
`performed at the Andorra Property. All three soil vapor samples detected PCE
`exceeding the laboratory reporting limits and residential soil gas screening levels. PCE
`was detected in soil gas ranging from 1,390 micrograms per cubic meter (ug/m3) to
`2,890 ug/m3. The Phase II report concludes that based on the PCE concentrations in
`soil gas above residential screening levels and the current residential nature of the
`Andorra Property, the PCE released at Defendants’ Fabricure Property has impacted
`the Andorra Property at concentrations which may represent a vapor intrusion concern
`for the on-site residential occupants.
`14. Andorra is informed and believes that PCE was never used, released, or
`disposed of at the Andorra Property.
`15. Yet, PCE was detected in sampling work performed at the Andorra
`Property.
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`Case 5:22-cv-01512 Document 1 Filed 08/26/22 Page 5 of 22 Page ID #:5
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`16. As a proximate result of Defendants’ disposal, releases, and threatened
`releases of hazardous substances, including PCE, Andorra has suffered damages and
`will incur response and corrective action costs that are necessary and consistent with
`the National Oil and Hazardous Substances Pollution Contingency Plan (National
`Contingency Plan or NCP), including attorneys’ fees and expert fees, for which
`Defendants are strictly liable pursuant to California Health and Safety Code section
`25363.
`17. The value of the Andorra Property, and Andorra’s ability to lease units,
`and Andorra’s ability to obtain competitive financing for the Andorra Property have
`diminished as the result of the contamination released on Defendants’ Fabricure
`Property and which have migrated onto the Andorra Property.
`18. Defendants have done nothing to investigate, remediate or abate the PCE
`disposed of at the Fabricure Property and allowed the PCE to migrate and damage the
`Andorra Property. Defendants’ failure to timely investigate and remediate the PCE
`contamination has damaged Andorra.
`19. Andorra continues to incur costs associated with the PCE contamination
`from Defendants’ Fabricure Property. The full extent of these future costs are
`currently unknown.
`
`FIRST CAUSE OF ACTION
`(For Response Costs Pursuant to Section 107(a) of CERCLA, 42 U.S.C. §
`9607(a))
`20. Andorra re-alleges the allegations set forth in paragraphs 1 through 16
`above, and hereby incorporates each of them as though they were set forth in full.
`21. Section 107(a) of CERCLA, Title 42 U.S.C. section 9607(a), provides
`that the owner and/or operator of a facility, any person who arranged for disposal or
`treatment of hazardous substances to a facility, or any person who accepted any
`hazardous substances for transport to disposal or treatment facilities, from which there
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`Case 5:22-cv-01512 Document 1 Filed 08/26/22 Page 6 of 22 Page ID #:6
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`is a release, or a threatened release which causes the incurrence of response costs,
`shall be liable for any necessary costs of response incurred by any person consistent
`with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP),
`40 C.F.C. Part 300.
`22. The Fabricure Property is a “facility” within the meaning of section
`101(9) of CERCLA, Title 42 U.S.C. section 9601(9). The hazardous substances that
`have been released from the Fabricure Property have migrated to and contaminated
`the Andorra Property.
`23. Defendants are a “person” within the meaning of section 101(21) of
`CERCLA, Title 42 U.S.C. section 9601(21).
`24. Fabricure was the owner and/or operator of the Fabricure Property at the
`time of disposal of hazardous substances at and from the Fabricure Property under
`section 107(a)(2) of CERCLA, Title 42 U.S.C. section 9607(a)(2), which migrated to
`and contaminated the Andorra Property.
`25. PCE, and other chemicals that were released and/or threatened to be
`released at the Fabricure Property are “hazardous substances” as defined in section
`101(14) of CERCLA, Title 42 U.S.C. section 9601(14).
`26. There has been a release and/or threatened release of hazardous
`substances from the Fabricure Property into the environment, within the meaning of
`sections 101(8) and 101(22) of CERCLA, Title 42 U.S.C. sections 9601 (8) and
`9601(22).
`27. Plaintiff Andorra is a person for the purposes of recovery of response
`costs under section 107(a) of CERCLA, Title 42 U.S.C. section 9607(a).
`28. Plaintiff Andorra has incurred response costs consistent with the NCP, 40
`C.F.R. Part 300, as the result of the releases and/or threatened releases of hazardous
`substances at the Fabricure Property within the meaning of section 101(25) of
`CERCLA, Title 42 U.S.C. section 9601(25).
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`Case 5:22-cv-01512 Document 1 Filed 08/26/22 Page 7 of 22 Page ID #:7
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`29. Defendants are jointly and severally liable, without regard to fault,
`pursuant to section 107(a) of CERCLA, Title 42 U.S.C. section 9607(a), for Plaintiff’s
`response costs incurred as a result of the releases and/or threatened releases of
`hazardous substances at the Fabricure Property which have migrated to and
`contaminated the Andorra Property.
`30. Pursuant to section 107(a) of CERCLA, Defendants are also liable for
`interest accrued on Plaintiff’s response costs.
`SECOND CAUSE OF ACTION
`(For Contribution Pursuant to Section 113(f) of CERCLA, 42 U.S.C. § 9613(f))
`31. Andorra re-alleges the allegations set forth in paragraphs 1 through 27
`above, and hereby incorporates each of them as though they were set forth in full.
`32. Section 113(f) of CERCLA, Title 42 U.S.C. section 9613(f), provides
`that any person may seek contribution from any other person who is liable or
`potentially liable under section 107(a), during or following any civil action under
`section 106 or under section 107(a). Such claims shall be brought in accordance with
`this section and the Federal Rules of Civil Procedure, and shall be governed by
`Federal law. In resolving contribution claims, the court may allocate response costs
`among liable parties using such equitable factors as the court determines are
`appropriate. Nothing in this subsection shall diminish the right of any person to bring
`an action for contribution in the absence of a civil action under section 106 or section
`107.
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`33. The Andorra Property and Fabricure Property are a “facility” within the
`meaning of section 101(9) of CERCLA, Title 42 U.S.C. section 9601(9).
`34. Defendants are a “person” within the meaning of section 101(21) of
`CERCLA, Title 42 U.S.C. section 9601(21).
`35. Defendants were the owner and/or operator of the Fabricure Property at
`the time of disposal of hazardous substances at and from the Fabricure Property under
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`Case 5:22-cv-01512 Document 1 Filed 08/26/22 Page 8 of 22 Page ID #:8
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`section 107(a)(2) of CERCLA, Title 42 U.S.C. section 9607(a)(2), which migrated to
`and contaminated the Andorra Property.
`36.
`If Andorra is found liable for the release and/or threatened release of
`hazardous substances, which liability Andorra denies, Andorra contends that its
`liability should be limited to Andorra’s equitable share of the response costs. If any
`liability assessed to Andorra is joint and several, pursuant to CERCLA Section
`113(f)(1), Title 42 U.S.C. section 9613(f)(1), Andorra is entitled to contribution from
`Defendants for their equitable shares of the response costs, including Defendants’
`equitable share of any orphan share of the response costs.
`37. While denying liability, in the event Andorra is found liable for response
`costs, Andorra demands contribution against Defendants pursuant to Section 113(f) of
`CERCLA, Title 42 U.S.C. section 9613(f).
`THIRD CAUSE OF ACTION
`(For Declaratory Relief Pursuant to Section 113(g)(2) of CERCLA, 42 U.S.C. §
`9613(g)(2))
`38. Andorra re-alleges the allegations set forth in paragraphs 1 through 34
`above, and hereby incorporates each of them as though they were set forth in full.
`39. Under section 113(g)(2) of CERCLA, Title 42 U.S.C. section 9613(g)(2),
`Andorra is entitled to a declaratory judgment that Defendants are jointly and severally
`liable to Andorra for any response costs Andorra has incurred and for any further
`response costs Andorra incurs in the future as a result of any release and/or threatened
`release of hazardous substances at the Fabricure Property.
`FOURTH CAUSE OF ACTION
`(For Relief Pursuant to 42 U.S.C. § 6972(a)(1)(B))
`40. Andorra re-alleges the allegations set forth in paragraphs 1 through 36
`above, and hereby incorporates each of them as though they were set forth in full.
`41. Pursuant to the notification requirements set forth in section 7002 of the
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`Case 5:22-cv-01512 Document 1 Filed 08/26/22 Page 9 of 22 Page ID #:9
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`Solid Waste Disposal Act, as amended by the Resource Conservation Recovery Act of
`1976 (RCRA), Title 42 U.S.C. section 6972(b)(2)(A), Andorra has undertaken to
`notify Defendants of its intention to file this lawsuit. This notice dated May 22, 2022
`and copies of the United States Postal Service return receipts for Defendants that
`returned their return receipt has been collected and retained to demonstrate
`Defendants have received notice of Andorra’s intention to file this lawsuit.
`42. As more fully set forth herein above, Defendants were an operator and/or
`owner of the Fabricure Property at the time of sudden and accidental releases and/or
`disposals of hazardous substances found at the Andorra Property, which constitute
`hazardous waste as that term is defined by RCRA, Title 42 U.S.C. section
`6903(5)(A)(B) and the duly promulgated regulations contained in 40 C.F.R. 261 et
`seq.
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`43. The releases and/or disposals of hazardous wastes at the Fabricure
`Property have caused an imminent and/or substantial endangerment to health or the
`environment by creating a health risk to tenants at the Andorra Property, persons at
`the Andorra Property, neighboring properties, and/or shallow groundwater in the area.
`Furthermore, the vertical and horizontal migration of the hazardous wastes released at
`the Fabricure Property, and have not been remedied 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 hazardous substances and hazardous
`wastes present at the Fabricure Property have migrated off-site to the Andorra
`Property. Hazardous vapors are also seeping from the subsurface into the air space
`within the structures on the Andorra Property causing 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
`hazardous substances and hazardous wastes continue to spread puts the public at risk.
`44. As a matter of law, Andorra is entitled to prosecute and maintain this
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`Case 5:22-cv-01512 Document 1 Filed 08/26/22 Page 10 of 22 Page ID #:10
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`lawsuit, to obtain injunctive relief compelling Defendants’ remediation, directing
`Defendants to: take action to address the endangerment which exists; participate in the
`hazardous substance and hazardous waste site investigation and clean up; pay the
`costs and expenses incurred by Andorra in connection with the Andorra Property to
`date; obtain payment for environmental consulting costs for site assessment to date;
`and, obtain payment of attorneys’ fees pursuant to Title 42 U.S.C. section
`6972(a)(1)(B).
`45. 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
`Fabricure Property. Andorra is entitled to prosecute this claim as a Private Attorney
`General. As a result, Defendants are jointly and severally liable for conducting all
`necessary site assessment and/or remediation of releases or disposals of the hazardous
`substances and hazardous wastes at the Fabricure Property and the Andorra Property.
`46. The regulated hazardous substances and hazardous wastes described
`above have actually seeped into the soils, soil vapor, and/or ground water at the
`Fabricure Property and caused damage to the Andorra Property. The hazardous
`substances and hazardous wastes released by Defendants’ daily cause ongoing direct
`and actual harm to the Andorra Property for which remedial and preventative
`measures must be taken. As a direct and proximate result of the releases and disposals
`of hazardous substances and hazardous wastes at the Fabricure Property, and
`Defendants’ failure to timely investigate and remediate those disposals, Andorra 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,
`Andorra is entitled to and, hereby demands reimbursement from Defendants for all of
`the costs necessary to respond to the releases or disposals of hazardous substances and
`hazardous wastes at the Fabricure Property, which have injured and continue to injure
`the Andorra Property; Private Attorney General attorneys’ fees; and, injunctive relief
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`compelling their implementation of remedial action.
`FIFTH CAUSE OF ACTION
`(For Response Costs, Reimbursement, Indemnity and Contribution Under
`California Superfund – Health & Safety Code Section 25363 et seq.)
`47. Andorra re-alleges the allegations set forth in paragraphs 1 through 43
`above, and hereby incorporates each of them as though they were set forth in full.
`48. Section 25323.5(a) of the California Health and Safety Code defines a
`person who is liable under the Carpenter-Presley-Tanner Hazardous Substance
`Account Act (California Superfund). Defendants are the current owner of a facility
`which has released/disposed and is releasing hazardous substances as alleged herein
`and are “responsible parties” under California Superfund and are liable to Andorra for
`response costs.
`49. The PCE, and other chemicals that were disposed of in the soil and soil
`vapor at Defendants’ Fabricure Property are specifically listed as a “hazardous
`substances” within the meaning of California Health and Safety Code section 25316.
`50. As a proximate result of the disposals, releases and continuing discharges
`of hazardous substances into the environment on Defendants’ Fabricure Property,
`including into the soil and soil vapor, Andorra has been forced to incur significant
`attorneys’ fees to enforce Andorra’s rights and will incur necessary response costs,
`including costs to investigate and assess such hazardous substance and contamination.
`Defendants as the owner of the Fabricure Property, the source of the PCE
`contamination at issue, pursuant to California Health & Safety Code section 25363, is
`strictly liable for any and all costs to assess and investigate, and abate, including all
`reasonable attorneys’ fees and costs as well as all consulting fees incurred in
`connection with the contamination, which has migrated and continues to migrate from
`Defendants’ Fabricure Property, and including all costs Andorra has incurred and/or
`will incur in the future to assess, investigate, monitor, treat, remove and/or remediate
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`Case 5:22-cv-01512 Document 1 Filed 08/26/22 Page 12 of 22 Page ID #:12
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`this contamination.
`51. Andorra has provided notice of commencement of this action to the
`Director of Toxic Substances Control pursuant to California Health and Safety Code
`section 25363(d).
`52. Andorra has already spent a substantial amount of money in attorneys’
`fees and costs to date to investigate all releases of hazardous substances and
`contamination from the Fabricure Property.
`53. Andorra will incur response costs in accordance with the California
`Health and Safety Code section 25300 et seq., due to the disposal, releases and
`threatened releases of hazardous substances and the contamination released and
`disposed of at Defendants’ Fabricure Property and which as migrated onto the
`Andorra Property.
`54. California Health and Safety Code section 25363 provides that any
`person who has incurred removal or remedial action costs may seek contribution or
`indemnity from any responsible party. Andorra hereby seeks the recovery,
`reimbursement, indemnity and contribution from Defendants, for any and all past,
`present and/or future response costs incurred in connection with the Andorra Property,
`together with interest thereon, with Defendants being strictly liable to Andorra for the
`same pursuant to California Health & Safety Code section 25363, and all provisions
`related thereto, including but not limited to all costs incurred and/or to be incurred to
`assess, investigate, monitor, treat, remove and/or remediate any hazardous substances
`and/or contamination from the Andorra Property. Andorra is entitled to declaratory
`relief with respect to Defendants’ liability for Andorra’s future costs, as described
`below.
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`SIXTH CAUSE OF ACTION
`(Equitable Comparative Indemnity; Apportionment of Fault)
`55. Andorra re-alleges the allegations set forth in paragraphs 1 through 51
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`above, and hereby incorporates each of them as though they were set forth in full.
`56. The Complaint alleges, among other things, conduct by Defendants that
`entitle Andorra to damages against Defendants.
`57. Andorra contends that it is not liable for the events and occurrences
`giving rise to the claims described in the Complaint.
`58. Upon information and belief, Defendants are responsible, in whole or in
`part, for the injuries suffered by Andorra.
`59.
`If Andorra is found to be responsible for any of its damages, then
`Defendants should be required to pay a share of Andorra’s damages that is in
`proportion to the comparative fault of that Defendants in causing Andorra’s damages.
`60. As a direct and proximate result of the above, Andorra has been damaged
`by reason of all response costs and other costs incurred or to be incurred to assess,
`investigate, monitor, remove, treat, remediate and abate such hazardous substances on
`the Andorra Property, including all reasonable attorneys’ fees and costs as well as all
`consulting fees incurred in connection with the contamination which has migrated and
`continues to migrate at/from Defendants’ Fabricure Property, and including all costs
`Andorra has incurred and/or will incur in the future to assess, investigate, monitor,
`treat, remove and/or remediate the contamination, in a sum not currently known.
`When the true amount of damages has been ascertained, Andorra will request leave of
`Court to amend this Complaint to insert the updated amount of damages.
`SEVENTH CAUSE OF ACTION
`(Total Equitable Indemnity)
`61. Andorra re-alleges the allegations set forth in paragraphs 1 through 57
`above, and hereby incorporates each of them as though they were set forth in full.
`62.
`If Andorra is found in some manner responsible as a result of the
`incidents and occurrences described in this Complaint, then any liability would be
`based solely upon a derivative form of liability resulting not from Andorra’s conduct,
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`but only from an obligation imposed upon Andorra by law; therefore, Andorra would
`be entitled to complete indemnity from Defendants.
`EIGHTH CAUSE OF ACTION
`(For Private Nuisance)
`63. Andorra re-alleges the allegations set forth in paragraphs 1 through 59
`above, and hereby incorporates each of them as though they were set forth in full.
`64. The unauthorized disposal and release of hazardous substances and
`contamination and other waste materials at Defendants’ Fabricure Property, which has
`migrated onto the Andorra Property that resulted in a condition which is offensive to
`the senses, and which is an obstruction to the free use of the Andorra Property, and an
`interference with Andorra’s comfortable use and enjoyment of the Andorra Property.
`65. As a result of the actions, inactions and omissions of Defendants, a
`continuing and/or permanent nuisance exists and continues to exist resulting in
`damage to Andorra on a daily basis, with each release and/or threatened release of
`hazardous substances and each migration of the same, from the surface into the soil
`and soil vapor, giving rise to a new cause of action. Alternatively, to the extent the
`injuries and damages cannot be abated, the nuisance is permanent with permanent
`damages and injuries to Andorra.
`66. The nuisance is specifically injurious to Andorra in that the damages and
`injuries resulting therefrom are different in type and effect from any damages or
`injuries that may have resulted to the entire community or neighborhood, in light of
`Andorra’s ownership interest in the Andorra Property and in light of Andorra’s
`desired use of the Andorra Property.
`67. As a result of the action, inactions and omissions of Defendants, Andorra
`has suffered and will continue to suffer general, compensatory and consequential
`damages, inclusive of but not limited to any and all amounts incurred and to be
`incurred for the investigation, assessment, monitoring, treatment, removal and/or
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`remediation of hazardous substances, contamination and wastes on the Andorra
`Property, the diminution in value of the Andorra Property, the current limited use of
`the Andorra Property, and loss of income from the intended use of the Andorra
`Property, all in amounts not yet fully ascertained, but which will be more specifically
`shown in accordance with proof at the time of trial.
`68. Andorra has requested and continues to seek to have Defendants herein
`abate and enjoin the nuisance, but Defendants have failed and refused to do the same
`and the nuisance continues to exist. The failure of Defendants to timely mitigate,
`through assessment, investigation, monitoring, treatment, removal and remediation,
`the hazardous substances, waste and contamination from the Andorra Property, will
`further increase the damages and injuries Andorra has and will continue to incur.
`69. Andorra prays that a mandatory and/or prohibitory injunction be issued
`requiring Defendants to enjoin and abate said nuisance and/or to perform any and all
`actions necessary to assess, investigate, remove, remediate, monitor, treat, or cleanup
`the hazardous substances, wastes and contamination from Defendants’ Fabricure
`Property, specifically the contamination that has migrated onto the Andorra Property.
`NINTH CAUSE OF ACTION
`(Trespass)
`70. Andorra re-alleges the allegations set forth in paragraphs 1 through 66
`above, and hereby incorporates each of them as though they were set forth in full.
`71. Andorra is the owner of the Andorra Property.
`72. Andorra is informed and believes that Defendants are the owners of the
`Fabricure Property.
`73. The hazardous substances, wastes and contamination existing in the soil
`and soil vapor at the Andorra Property and the continued migration of the hazardous
`substances from Defendants’ Fabricure Property constitutes a continuing and/or
`permanent trespass on the Andorra Property caused by the actions, inactions and
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`omissions of Defendants, whereby Defendants have acted negligently, intentionally
`and tortiously in causing such trespass and have acted negligently, intentionally and
`tortiously in failing to abate and enjoin such trespass and in failing to investigate,
`assess, monitor, treat, remove and/or remediate such hazardous substances, wastes and
`contamination.
`74. As a result of the actions and inactions of Defendants, a continuing
`trespass exists and continues to