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1 C.D.Michel—SBN 144258 — W. Lee Smith— SBN 196115
2 Thomas E. Maciejewski — SBN 222736 MICHEL & ASSOCIATES, P.C. 3 180 East Ocean Boulevard, Suite 200 U LongBeach,CA90802 TrQ AT 4 Telephone: (562) 216-4444 rWNGELES Facsimile: (562) 216-4445 SUpERIOR COURT Attorneys for Defendant San 6 Gabriel Valley Gun Club
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 TN AND FOR THE COUNTY OF LOS ANGELES
10 EAST DISTRICT 11 CALMAT CO. dba VULCAN MATERIAL ) CASE NO: KC062582J COMPANY, WESTERN DIVISION, a ) 12 Delaware corporation, ) DEFENDANT SAN GABRIEL VALLEY ) GUN CLUB’S NOTICE OF DEMURRER 13 Plaintiff, ) AND DEMURRER TO PLAINTIFF’S ) COMPLAINT; MEMORANDUM IN 14 vs. ) SUPPORT THEREOF ) 15 SAN GABRIEL VALLEY GUN CLUB, a ) Pursuant to CCP 430.10 non-profit California corporation; and DOES) 16 1-1000, inclusive, ) Hon. Dan T. Oki, presiding ) 17 Defendants. ) Date: March 8, 2012 ) Time: 8:30a.m. 18 ) Dept.: J ) Action Filed: November 22, 2011 19 ) Trial Date: None ) 20
21 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
22 PLEASE TAKE NOTICE that on Thursday, March 8, 2012, at 8:30 a.m. or as soon
23 thereafter as the matter may be heard in Department J, before the Honorable Dan T. Oki, at the
24 Los Angeles Superior Court, 400 Civic Center Plaza, California, Defendant San Gabriel Valley
25 Gun Club (the “Club”), will and hereby does move the Court for an order sustaining a Demurrer
26 to the Complaint of Calmat Co. dba Vulcan Material Company, Western Division (“Vulcan”) on
27 the following grounds.
28
1 NOTTCV. (11’ flFMTT1N1’.T AN11 TWMTT1NVT MFMfl TN STJPPORT THV1FflF ______
1 This Demurrer is brought per Code of Civil Procedure section 430.10 and is based on this
2 Notice of Demurrer and Demurrer, the attached Memorandum of Points and Authorities, the
3 accompanying Request for Judicial Notice, the papers and pleadings on file in this action, and
4 such other papers, pleadings, and arguments as this Court shall admit.
5 The Club hereby demurs to Vulcan’s Complaint on the following grounds:
6 1. The First, Third, Fifth, Sixth, and Eighth Causes of Action fail to allege facts
7 sufficient to constitute a cause of action in that they set forth facts showing that they are time- 8 barred under their respective statutes of limitations. Code Civ. Proc. § 430.10 (e). 9 2. The First Cause of Action fails to allege facts sufficient to constitute a cause of
10 action in that it fails to allege that Vulcan actually spent money that resulted in the property at 11 issue being returned to the contractually specified condition. Code Civ. Proc. § 430.10 (e). 12 3. The First Cause of Action fails to allege facts sufficient to constitute a cause of
13 action in that it fails to allege facts creating a duty on the part of the Club to clean up spent 14 ammunition. Code Civ. Proc. § 430.10 (e). 15 4. The Third, Fifth, Sixth, and Eighth Causes of Action fail to allege facts sufficient
16 to constitute a defense in that it alleges facts showing that Vulcan consented to the conduct 17 resulting in the alleged damage to the property at issue. Code Civ. Proc. § 430.10 (e). 18 5. The Ninth Cause of Action fails to allege facts sufficient to constitute a defense in 19 that it fails to allege that Vulcan and the Club are liable to any third party. Code Civ. Proc. § 20 430.10(e).
21
22 Dated: January 26, 2012 MICHEL & ASSOCIATES, P.C. 23
24 Thomas Maciej ewski Attorneys Defendant San Gabriel Valley Gun Club 26
27
28
2 NflTTC1’. (IF flF.MTTPTFP ANT) TWMITPPVfl• MEMO TN STJPPO1T THEREOF 1 TABLE OF CONTENTS PAGE 2 I. INTRODUCTION 1 3 II. ARGUMENT 1 4 A. Standard for Demurrer 1 5 B. Plaintiff Vulcan’s Breach of Contract, Negligence, Permanent 6 Nuisance, Permanent Trespass, and Waste Claims Are Time-Barred by Statutes of Limitations 2 7 1. Vulcan’s Breach of Contract Cause of Action Has 8 Expired 5
9 2. Vulcan’s Negligence Cause of Action Has Expired 5
10 3. Vulcan’s Permanent Nuisance Cause of Action Has Expired 6 11 4. Vulcan’s Permanent Trespass Cause of Action Has 12 Expired 6
13 5. Vulcan’s Waste Cause of Action Has Expired 7
14 C. The Lease’s Terms Bar Vulcan’s Contract Causes of Action 7
15 1. The Contract Requires Reimbursement Upon Completion of Cleanup, Not Payment of Estimated Cleanup Costs 7 16 2. Vulcan’s Breach Cause of Action Fails because it 17 Improperly Relies on an Unreasonable Interpretation of the Contract 8 18 D. Vulcan’s Consent Bars its Causes of Action for Permanent 19 Nuisance, Permanent Trespass, Negligence, and Waste 8
20 E. Vulcan’s Contractual Indemnity Cause of Action Fails Because a Third-Party Indemnity Provision is at Issue 10 21 F. No Recognized Independent Cause of Action Exists for 22 Negligence Per Se 12
23 III. CONCLUSION 12
24
25
26
27
28
xTrrTrI’ (‘ Th TTDD1D A1\TTh /1TT111’1. 1’1j1C TN QTTPPflTT TT41’1N’flP 1 TABLE OF AUTHORITIES
2 PAGE(S)
3 FEDERAL CASES
4 Indust. Risk Insurers v. Creole Prod. Servs., Inc.,
5 746 F.2d 526 (9th Cir. 1964) 11
6 Gregory Viii. Partners, L.P. v. Chevron USA., Inc.,
7 C 11-1597PJH, 2011 WL3359928 (N.D. Cal. Aug. 2,2011) 7
8 SPPI-Somersvilie, Inc. v. TRC Cos., Inc.,
9 Nos. C 04-2648S1, 07-5 825 SI, 2009
10 WL2390347at*711 (N.D. Cal. Aug. 3, 2009) 12
11
12 STATE CASES
13 Angeles Chern. Co. v. Spencer & Jones,
14 44Ca1.App.4th112(1996)
15 April Enterprises, Incorporated v. KTTV,
16 147 Cal.App.3d 805 (1983) 5
17 Barton v. New United Motor Mfg., Inc.,
18 43 Cal. App. 4th 1200 (1996) 2
19 Beck Dev. Co. v. S. Pac. Trans. Co.,
20 44Ca1. App. 4th 1160 (1996) 8
21 Bonifleldv. County ofNevada,
22 94 Cal. App. 4th 298 (2001) 4
23 Church ofChrist in Hollywood v. Super. Ct.,
24 99 Cal. App. 4th 1244 (2002) 8
25 Churchill v. Baumann,
26 95 Cal. 541 (1892) 8
27 Damonv. Waldteufel,
28 99 Cal. 234 (1893) 8
11 NOTICE OF DEMURRER AND DEMURRER: MEMO IN SUPPORT THEREOF 1 TABLE OF AUTHORITIES (CONT.)
2 PAGE(S)
3 STATE CASES (CONT.)
4 Gem Developers v. Halicraft Homes ofSan Diego, Inc.,
5 213 Cal. App. 3d419 (1989) 11
6 Gentry v. eBay, Inc.,
7 99 Cal. App. 4th 816 (2002,) 1
8 George v. Auto. Club ofS. Cal.,
9 Case No. B229287, 2011 WL 6144927, at *10 (Cal. App. Dec. 12, 2011) 8
10 Home Budget Loans, Inc. v. Jacoby & Meyers Law Offices,
11 207Ca1.App. 3d 1277(1989) 11
12 KFC W, Inc. v. Meghrig,
13 23Ca1.App.4th1167(1994) 6
14 Kolaniv. Gluska,
15 64 Cal. App. 4th 402 (1998) 3,4,5,6,7
16 Mangini v. Aerojet-General Corp,
17 230Ca1.App. 3d 1125 (1991) 1,8,9
18 Qualcomm, Inc. v. Certain Underwriters at Lloyd’s, London,
19 161 Cal. App. 4th 184 (2008) 2
20 Quiroz v. Seventh Ave. Ctr.,
21 140 Cal. App. 4th 1256 (2006) 12
22 Smith v. Cap Concrete, Inc.,
23 133 Cal. App. 3d769 (1982) 8
24 5. Cal. Edison Co. v. Super. Ct.,
25 37 Cal. App. 4th 839 (1995) 2
26 Starrh & Starrh Cotton Growers v. Aera Energy LLC
27 153 Cal. App. 4th 583, 63 Cal. Rptr. 3d (2007) 6
28
111 NOTICE OF DEMURRER AND DEMURRER: MEMO IN SUPPORT THEREOF 1 TABLE OF AUTHORITIES (CONT.)
2 PAGE(S)
3 STATE CASES (CONT.)
4 Trinity Park, L.P. v. City ofSunnyvale,
5 193 Cal. App. 4th 1014 (2011) 2
6
7 STATUTES & RULES 8 28 U.S.C. § 1367 3, 4 9 10 Civ. Code § 1638 7 11 Civ. Code 1644 7
12 Civ.Code2778(1) 11 13 Civ. Code § 2778(2) 11 14 Civ. Code § 3515 8 15 16 Code of Civ. Proc. § 337 (1) 5 17 CodeofCiv.Proc.430.10 1 18 Code of Civ. Proc. § 430.30 2 19 Code of Civ. Proc. § 430.50 (a) 1 20 21 Evid. Code § 430.70 9 22 Evid. Code § 452 9 23
24
25
26
27
28
iv NOTTCF, (IF IWMTIPPFT ANT) DEMURRER: MEMO TN SuPPORT THEREOF 1 MEMORANDUM OF POINTS AND AUTHORITIES
2 IN SUPPORT OF DEMURRER TO PLAINTIFF’S COMPLAINT’
3 I. INTRODUCTION
4 Suppose. . . A leases Blackacre to B for the purpose of operating a quarry. B lawfully uses the land for that purpose and, at the end of the lease term, returns the 5 land to A with a substantial and inevitable hole in the ground. [I]t would be absurd to allow A to sue B for having created the inevitable hole that was the very object 6 of the lease.
7 Manginiv. Aerojet-General Corp., 230 Cal. App. 3d 1125, 1138-39 (1991).
8 Here, plaintiff Calmat Co. dba Vulcan Materials Company, Western Division (“Vulcan”)
9 knowingly and repeatedly leased property to defendant San Gabriel Valley Gun Club (the “Club”)
10 expressly for the purpose of operating a shooting range. In the approximately 60 years the
11 shooting range operated, the parties executed multiple lease agreements, none of which created or
12 mentioned any cleanup duty on the part of the Club regarding firearm discharge material onto the
13 property at issue.
14 Accordingly, the Club requests this Court dismiss plaintiff Vulcan’s Complaint.
15 II. ARGUMENT
16 A. Standard for Demurrer
17 Objection to a complaint via demurrer is sustainable if “[t]he pleading does not state facts 18 sufficient to constitute a cause of action.” Code Civ. Proc. § 430.10(e).2 A demurrer can be made 19 to an entire complaint or individual causes of action therein. (S 430.50 (a).) A cause of action is
20 subject to demurrer for failure to state a claim if the complaint discloses an affirmative defense on
21 its face, and the plaintiff has not “pleaded around” that defense. See Gentry v. eBay, Inc., 99 Cal.
22 App. 4th 816, 824-25 (2002) (citations omitted). “[A] trial court does not err in sustaining a
23 demurrer without leave to amend where the complaint discloses on its face that the action is
24
25 ‘ Some of the bases for this Demurrer rely on this Court striking certain 26 allegations, as requested in the Motion to Strike filed concurrently herewith. The Club therefore respectfully suggests judicial economy will be best served if this Court evaluates the Motion to 27 Strike before it turns its attention to this Demurrer.
28 2 All further section references are to the California Code of Civil Procedure unless otherwise noted.
1 NflTWE OF TWMTTTRFJZ AND DFMIJRTWTh MFMO IN SIJPPORT THEREOF 1 barred by the statute of limitations.” Barton v. New United Motor Mfg., Inc., 43 Cal. App. 4th
2 1200, 1204 (1996) (citation omitted).
3 “Where written documents are the foundation of an action and are attached to the
4 complaint and incorporated therein by reference, they become a part of the complaint and may be
5 considered on demurrer.” Qualcomm, Inc. v. Certain Underwriters at Lloyd’s, London, 161 Cal.
6 App. 4th 184, 191 (2008) (citation omitted) (internal quotation marks omitted). Additionally,
7 “When a dispute arises over the meaning of contract language, the first question to be decided is
8 whether the language is ‘reasonably susceptible’ to the interpretation urged by the party. If it is
9 not, the case is over.” S. Cal. Edison Co. v. Super. Ct., 37 Cal. App. 4th 839, 847-48 (1995)
10 (citation omitted).
11 Under the doctrine of truthful pleading, the courts ‘will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached 12 documents, or allegations contrary to facts that are judicially noticed.’ [Citation.] ‘False allegations of fact, inconsistent with annexed documentary exhibits 13 [citation] or contrary to facts judicially noticed [citation], may be disregarded....’
14 Trinity Park; L.P. v. City ofSunnyvale, 193 Cal. App. 4th 1014, 1027 (2011).
15 B. Plaintiff Vulcan’s Breach of Contract, Negligence, Permanent Nuisance, Permanent Trespass, and Waste Claims Are Time-Barred by Statutes of 16 Limitations
17 As indicated in Vulcan’ s Complaint, Vulcan previously filed a complaint against the Club
18 in the United States District Court for the Central District of California (“Federal Complaint”) on 19 September 4, 2008. (Complaint at ¶ 50; see also Exhibit A to accompanying Request for Judicial 20 Notice.3) Vulcan’s federal Complaint was dismissed on August 22, 2011. (Complaint at ¶ 51.)
21 Vulcan filed its Complaint in this state action on November 22, 2011 — 92 days after the federal
22 action was dismissed.
23 Vulcan’s Complaint is nearly identical to its Federal Complaint, except for removing its
24 claims under CERCLA (First and Second Claims for Relief in the Federal Complaint), its third
25 claim under the California Hazardous Substances Account Act, and its declaratory relief request
26 related to its CERCLA claims (Fifteenth Claim for Relief in the Federal Complaint). Those claims
27 having been removed, Vulcan’s current Complaint otherwise simply restates its same Breach of
28 Section 430.30 allows this Court to judicially notice matters at the demurrer stage.
2 NOTICE OF DEMURRER AND DEMURRER: MEMO IN SUPPORT THEREOF 1 Contract, Negligence, Permanent Nuisance, Permanent Trespass, and Waste claims from the
2 previously dismissed Federal Complaint.
3 By renewing these five claims, the Club presumes Vulcan relies on the federal tolling
4 statute codified at 28 U.S.C. section 1367, subdivision (d) and on California’s common law
5 doctrine of equitable tolling.4 Without applying the federal tolling statute or California’s equitable
6 tolling doctrine, however, the statute of limitations on each of these five claims would have
7 expired before, or during, the nearly three-year period these claims were pending in the federal
8 action.
9 The problem with Vulcan’s presumed reliance on either the federal tolling statute or
10 California’s equitable tolling doctrine is that the Court of Appeal for the Second District has ruled
11 that the federal tolling statute is a federal codification of California’s equitable tolling doctrine,
12 and, read in conjunction, the federal statute and the state doctrine require a plaintiff to refile
13 otherwise-expired claims originally brought in federal court within 30 days after the federal action
14 is dismissed. Kolani v. Gluska, 64 Cal. App. 4th 402, 409 (1998). Here, Vulcan refiled 92 days
15 after the federal Complaint was dismissed.
16 This means that State-law “equitable tolling” is unavailable apart from the federal tolling
17 statute when claims are refiled in state court. Rather, the federal tolling statute codifies the state-
18 law “equitable tolling doctrine” and imposes a strict, 30-day deadline on refiling dismissed federal
19 claims.
20 As noted by the Kolani court, “the requirements for [state-law] equitable tolling are that
21 [1] defendant must receive timely notice of the claims, [2] defendant must suffer no prejudice, and
22 [3] plaintiff must act reasonably and in good faith.” 64 Cal. App. 4th 402, 409. “[S]ubdivision (d)
23 [of 28 U.S.C. section 1367] codifies principles of ‘equitable tolling’ found in state case law.” (Id.
24 at 408.) “28 United States Code section 1367, subdivision (d) codifies the tolling doctrine and
25
26 28 U.S.C. section 1367 (d) provides that “[t]he period of limitations for any claim 27 asserted under subsection (a) [supplemental jurisdiction over state-law claims], and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of 28 the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”
3 NflTW1 OF TWMTTTPFT AND DFMTTTZTZVTZ• MFMO TN STJPPORT THEREOF 1 applies it in all supplemental jurisdiction cases where the pendent state claims are dismissed
2 without prejudice.” Id. at 409. “The third requirement, reasonable conduct by plaintiff, is
3 addressed by subdivision (d)s requirement that the second suit be filed within 30 days after
4 dismissal of the pendent claims.” Id. This “substitutes a bright-line rule in place of the case-by-
5 case analysis of ‘reasonableness’ found in equitable tolling cases.” Id. at 409-410. The strict, 30-
6 day refiling requirement of section 1367 “upholds the policy of the statute of limitations, by
7 limiting the time to refile, and thus assuring that any claims will be promptly pursued in any
8 subsequent action.” Id (emphasis in original).5
9 Like plaintiff here, who has also filed its Complaint well beyond the 30-day deadline,
10 appellants in the Kolani case, refiled their claims in state court seventy-eight days after the
11 dismissal of their federal lawsuit. Kolani, supra, 64 Cal. App. 4th 402, 410. While the appellants
12 there urged the court to “exclude from the limitations computation the entire interval that their
13 federal claims were pending,” the court rejected their request, holding “Section 1367 subdivision
14 (d) does not allow plaintiff to ‘tack’ onto the limitations period the full time during which his
15 federal action was pending[,]” and affirmed that Section 1367 imposes a strict 30-day period for
16 refiling of claims in state court “absent a state statute extending that period, and absent some
17 extraordinary circumstance justifying the delay.” Id. at 411.
18 Here, Vulcan has waited 92 days after the federal action was dismissed to refile its pendent
19 state claims in this Court — two weeks longer than the appellants in Kolani, and over two months
20 after the thirty-day deadline prescribed in 28 U.S.C. section 1367 (d). Under Kolani, therefore,
21 none of Vulcan’s claims are saved by any suggested tolling of statutes of limitations from the
22 federal case. Indeed, any cause of action where the statute of limitations expired before the
23 subject November 22, 2011 Complaint was filed are time-barred. Thus, as discussed below,
24 Vulcan’s claims for Breach of Contract, Permanent Nuisance, Permanent Trespass, Negligence,
25 and Waste are all time barred and are thus insufficient to constitute valid causes of action.
26
27 The reasoning in Kolani, a case decided by the Court of Appeal with jurisdiction over 28 this Court, was rejected in BonUield v. County ofNevada, 94 Cal. App. 4th 298 (2001). Absent Supreme Court authority to the contrary, however, Kolani remains good law.
4 NOTICE OF DEMuRRER AND DEMURRER: MEMO IN SUPPORT THEREOF 1 1. Vulcan’s Breach of Contract Cause of Action Has Expired
2 An action on a written contract must be brought within four years of its accrual. Code of 3 Civ. Proc. § 337 (1). A breach of contract claim” accrues when the plaintiff discovers, or could 4 have discovered through reasonable diligence, the injury and its cause.” Angeles Chem. Co. v.
5 Spencer & Jones, 44 Cal. App. 4th 112, 119 (1996) (citing April Enterprises, Inc. v. KTTV(1983) 6 147 Cal.App.3d 805, 826—833).
7 As noted in the Complaint, the Club’s “leasehold interest in any portion of the Azusa
8 Property terminated on or about November 6, 2006’ and the Club “ceased gun club operations as
9 of November 6, 2006. . . .“ (Complaint at ¶J 34, 39.) After the lease ended, Vulcan could have 10 discovered, through reasonable diligence, any damages to the Site and their causes. Vulcan admits 11 it discovered the alleged Site damages on July 2, 2005 (which was before the lease terminated) 12 (Complaint at ¶ 35). Vulcan’ s breach of contract cause of action, therefore, expired on July 2, 13 2009. Under Kolani’ s reading of the federal tolling statute, this date was extended 30 days after
14 Vulcan’ s federal action was dismissed, and Vulcan waited 92 days after that dismissal to file this
15 Complaint. Consequently, Vulcan’ s Breach of Contract cause of action is time-barred and thus
16 insufficient to constitute a valid cause of action.
17 2. Vulcan’s Negligence Cause of Action Has Expired
18
19 “A negligence claim involving damage to real property is governed by a three-year
20 limitations period ([C.C.P.] 338, subd. (b)), which commences to run when the plaintiff knows,
21 or should have known, of the wrongful conduct at issue.” Angeles Chem. Co. v. Spencer & Jones,
22 44 Cal. App. 4th 112, 119 (1996) (citation omitted).
23 As with Vulcan’ s breach of contract cause of action, Vulcan should have known all
24 alleged wrongful conduct shortly after the termination of the Club’s lease. Indeed, Vulcan admits
25 that it had actually discovered the alleged damages to the Site on July 2, 2005 (which was before 26 the lease terminated) (Complaint at ¶ 35). Assuming Vulcan’s negligence cause of action accrued 27 on the date the lease was terminated, the statute of limitations expired around November 6, 2008.
28 Again, under Kolani, Vulcan’ s negligence cause of action is time-barred as Vulcan waited 92 days
5 NOTTCF oF DFMTTPPFT AND DVMTJRTWR: MF.MO TN SIJPPORT THERFOF 1 after the federal action was dismissed to file the Complaint. It is thereby insufficient to constitute 2 a valid cause of action.
3 3. Vulcan’s Permanent Nuisance Cause of Action Has Expired
4 The statute of limitations for a permanent nuisance is three years after the permanent
5 nuisance is created. KFC W, Inc. v. Meghrig, 23 Cal. App. 4th 1167, 1180 (1994).
6 Vulcan’s Complaint states that the Club’s lease terminated around November 6, 2006, and 7 that the Club ceased operations as of that date. (Complaint at ¶J 34, 39.) Although Vulcan alleges 8 the Club remained in possession of the Site beyond November 6, 2006, Vulcan contends the Club 9 did so “purportedly for the purpose of remediating the contamination caused by [the Club’s] 10 operations.” (Complaint at ¶ 39.) Importantly, Vulcan’s Complaint offers nothing to show the 11 Club permitted any hazardous substances disposal or allowed contaminants to leave the Site after
12 their leasehold interest terminated on November 6, 2006. Accordingly, the statute of limitations
13 for Vulcan’s permanent nuisance cause of action expired three years later on November 6, 2009.
14 Under the federal tolling statute, Vulcan was entitled to revive its permanent nuisance claim
15 following the dismissal of its federal action. But, as Kolani instructs, the time for Vulcan to bring 16 such a claim was limited to thirty days following dismissal of the federal action. Vulcan,
17 however, waited ninety-two days to file this Complaint and, thus, this cause of action is time
18 barred and thus insufficient to constitute a valid cause of action.
19 4. Vulcan’s Permanent Trespass Cause of Action Has Expired
20 The statute of limitations for permanent trespass is three years, and it accrues and begins to
21 run at the time of entry. Starrh & Starrh Cotton Growers v. Aera Energy LLC, 153 Cal. App. 4th
22 583 (2007). Like Vulcan’s permanent nuisance cause of action, because the Club ceased
23 operations on November 6, 2006, and the Complaint fails to show the Club caused any
24 contamination on the Site after that date, the statute of limitations on Vulcan’s permanent trespass
25 claim expired on November 6, 2009. Moreover, under Kolani, the extended time period to re-file
26 in state court expired 30 days after the August 22, 2011 dismissal of the federal action — some two
27 months before the filing of this Complaint. This cause of action is, consequently, time-barred and
28 thus insufficient to constitute a valid cause of action.
6 NOTICE OF DEMIJRRER AND DEMIJRRER: MEMO IN SUPPORT THEREOF 1 5. Vulcan’s Waste Cause of Action Has Expired 2 The statute of limitations for waste is three years. C.C.P § 338 (b); Gregory Viii. Partners, 3 L.P. v. Chevron USA., Inc., C 11-1597 PJH, 2011 WL 3359928 (N.D. Cal. Aug. 2,2011). As
4 argued above, the Club ceased operations at the Site in November 2006, and the Complaint offers
5 no facts and makes no allegations that the Club caused contamination after this date. Therefore,
6 the statute of limitations for Vulcan’ s waste cause of action expired in November 2009. Under
7 Kolani, the claim is not saved by the 30 day federal tolling statute and, thus, its is time barred.
8 C. The Lease’s Terms Bar Vulcan’s Contract Causes of Action
9 1. The Contract Requires Reimbursement Upon Completion of Cleanup, Not Payment of Estimated Cleanup Costs 10
11 Civil Code section 1644 states “[t]he words of a contract are to be understood in their
12 ordinary and popular sense. . . .“ Civil Code section 1638 states “[t]he language of a contract is to
13 govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.”
14 The May 20, 1992 lease plainly states that if Vulcan chooses to “do such work as shall be required
15 to return the Premises to an orderly and safe, sanitary condition the cost thereof to landlord shall 16 be immediately repaid to Landlord.” (Complaint at Exhibit H, ¶ 10). 17 The parties’ intent here was both clear and obvious. If Vulcan chose to clean up the Site,
18 the Club would repay the costs actuaiiy spent to return the Site to “an orderly and safe, sanitary
19 conditionE.]” Id. To read this clause any other way ignores the interpretation rules stated in 20 sections 1638 and 1644 above. Thus, to the extent Vulcan can obtain any breach of contract
21 damages under the May 20, 1992 Lease (or the Lease Amendment), such recovery is only
22 available after Vulcan actually spends the money to return the Site to its contractually
23 specified condition. Vulcan has not done so. In fact, on its face, Vulcan’s Complaint
24 demonstrates that because it seeks a permanent injunction requiring the Club “to abate the
25 nuisance and trespass by implementing all investigation and response activities demanded
26 by federal, state and local authorities” (Complaint at p. 20, ¶ 2), it has demonstrably not performed 27 the cleanup that is a condition precedent for making a clean-up claim under the relevant
28 contractual provision. As a result, Vulcan has not performed the required contractual duties that
7 1%T(VFTC’1’ (1’ ThE’1/ITTDD1’D ATJF ATTD1T’T?. 14V1’4C TN QTTPPflTT TT4P1T’flT’ 1 must occur before attempting to legitimately enforce this particular provision. Vulcan’s attempt to
2 recover contractual damages here is therefore premature and this cause of action should also be 3 dismissed.
4 2. Vulcan’s Breach Cause of Action Fails because it Improperly Relies on an Unreasonable Interpretation of the Contract 5
6 If a “contract is not reasonably susceptible to the meaning alleged in the complaint, it is
7 proper to sustain a demurrer without leave to amend.” See George v. Auto. Club ofS. Cal., Case
8 No. B229287, 2011 WL 6144927, at *10 (Cal. App. Dec. 12, 2011). There is no doubtthat
9 Vulcan intended to lease the Site to the Club in order to operate a shooting range thereon. Further,
10 there is no provision in any of the lease documents attached to the Complaint that defines the
11 Club, or anyone else, to have a specific duty vis-a-vis spent ammunition present at the Site. Thus,
12 Vulcan’s lawsuit is a post-hoc attempt to unreasonably infer specific cleanup clauses into contracts 13 executed up to sixty-three years ago. Because none of the contracts here are reasonably
14 susceptible to the meaning alleged in the Complaint, (i.e., they do not include a spent ammunition
15 cleanup provision), the Court should sustain the Club’s demurrer as to Vulcan’s breach of contract 16 cause of action.
17 D. Vulcan’s Consent Bars its Causes of Action for Permanent Nuisance, Permanent Trespass, Negligence, and Waste 18 19 “He who consents to an act is not wronged by it.” Civ. Code § 3515. This general rule 20 applies to nuisance (Churchill v. Baumann, 95 Cal. 541, 544 (1892) (citing section 3515)),
21 trespass (Church of Christ in Hollywood v. Super. Ct., 99 Cal. App. 4th 1244, 1252 (2002)),
22 negligence (Damon v. Waldteufel, 99 Cal. 234, 235 (1893) (citing section 3515)), and waste
23 (Smith v. Cap Concrete, Inc., 133 Cal. App. 3d 769, 778 (1982)). “Accordingly, when it appears
24 the defendant conducted a lawful activity on a landowners property with the consent of the
25 landowner, the landowner will be precluded from pursuing a cause of action for nuisance [and
26 presumably other real property torts] based upon that consensual activity.” Beck Dev. Co. v. S.
27 Pac. Trans. Co., 44 Cal. App. 4th 1160, 1215 (1996) (citing Mangini, 230 Cal. App. 4th at 1139).
28
8 NOTICE OF DEMuRRER AND DEMuRRER: MEMO IN SUPPORT THEREOF 1 Here, the lease terms (attached to the Complaint) show that Vulcan clearly knew, and
2 consented to, the Site being used as a shooting range6 where it is common knowledge bullets will
3 be fired and land.7 And yet, none of Vulcan’s executed leases make any mention of what is to be
4 done with spent ammunition that lands at the Site. Because it is obvious Vulcan consented to
5 bullets being placed on the Site by knowingly contracting for the operation of a shooting range, 6 that consent bars, under tort law, relief seeking to have those bullets removed.
7 A lessor cannot sue its former lessee for a change in the property leased that was the
8 inevitable result of the lease being carried out: “consent as a defense is necessary to avoid absurd
9 results.” Mangini, 230 Cal. App. 3d at 1138-39. Here, like the hypothetical quarry mentioned in
10 Section I above, Vulcan leased the Site to the Club for the express purpose of having a place to
11 shoot firearms, i.e. A leased the land to B to operate the quarry. The Club lawfully used the Site 12
13 6 See, e.g., 1947 Lease (attached as Exhibit A to Complaint) at p. 1: “The Club has been 14 organized for the purpose of making available to its members and their families a location and facilities for target practice . . .“ and p. 3: “The Club shall exercise every precaution in the 15 operation of the target range.”; 1950 Lease (attached as Exhibit B to Complaint) at p. 1: “The 16 Club has been organized for the purpose of making available to its members and their families a location and facilities for target practice. . .“ and p. 5: “The Club shall exercise every precaution 17 in the operation of the target range.”; 1958 Lease (attached as Exhibit C to Complaint) at p. 1: “The Club has been organized for the purpose of making available to its members and their 18 families, (including junior Gun Club members) a location and facilities for target practice. . and 3: “The Club shall exercise every precaution in the operation the target 19 p. of range.”; 1961 Lease (attached as Exhibit D to Complaint) at p. 1: “Tenant is organized for the purpose of 20 teaching and fostering respect for, and safe operation of fire arms. . .“ and p. 3 “Tenant shall use the Property only and exclusively for carrying on and operating safety training and target practice 21 and closely related activities. In the operation of its target ranges, Tenant shall exercise every possible precaution.”; 1970 Lease (attached as Exhibit E to Complaint) at 2: “Tenant shall use 22 p. the property only as a Pistol, Rifle, Trap and Skeet Range and closely related purposes.”; 1977 23 Lease (attached as Exhibit F to Complaint) at p. 2: “Tenant shall use the property only as a Pistol, Rifle, Trap and Skeet Range and closely related purposes.”; 1988 Lease (attached as Exhibit G to 24 Complaint) at p. 5: “Tenant agrees that the Premises shall not be used for any purpose except as a pistol and rifle trap and skeet range.”; and 1992 Lease (attached as Exhibit H to Complaint) at p. 25 5: “Tenant agrees that the Premises shall not be used for any purpose except as a pistol, rifle and 26 trap and skeet range.”
27 The Club requests this Court judicially notice that operating a firearm shooting range results in bullets being fired and landing. Evid. Code § 430.70, 452(g) (stating that judicial 28 notice may be taken of “[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute”).
9 NOTICE OF DEMuRRER AND DEMIJRRER: MEMO IN SUPPORT THEREOF 1 as expressly contracted for, and returned it to Vulcan in a condition that was the natural result of
2 its intended use, just as B returned the quarry site to A at the end of the lease with a quarry on it.
3 Because the instant action is like the quarry hypothetical, the result should be the same: Vulcan’s 4 consent is a defense to any alleged tort liability.
5 Vulcan’s knowing consent to having spent ammunition placed on the Site bars Vulcan’s
6 tort causes of action regarding damage to the Site (i.e., continuing nuisance, permanent nuisance,
7 continuing trespass, permanent trespass, negligence, including Vulcan’s attempt to plead a 8 negligence per se cause of action, and waste).
9 At the demurrer stage, however, the Club must recognize that the Complaint adds new
10 allegations regarding off-Site contamination that were not included in the previous Federal
11 Complaint. (See Request for Judicial Notice filed herewith at Exhibit A attached thereto). That
12 commingling of allegations has resulted in Vulcan’ s tort causes of action being pleaded to include
13 allegations regarding both off-Site damage and damage to the Site. The Motion to Strike filed
14 concurrently herewith explains why certain allegations related to off-Site damages should be 15 stricken.
16 Presuming the Court strikes Vulcan’ s allegations regarding off-Site damages to the extent
17 that those allegations relate to claims that are time-barred, Vulcan’ s causes of action for permanent
18 nuisance, permanent trespass, and negligence will be limited to allegations based on damages to
19 the Site only. Accordingly, because Vulcan consented to the conduct resulting in the alleged
20 damage to the Site, the Court should sustain this Demurrer regarding the causes of action
21 mentioned in the prior sentence and Vulcan’s waste cause of action.8
22 E. Vulcan’s Contractual Indemnity Cause of Action Fails Because a Third-Party Indemnity Provision is at Issue 23
24 Indemnity is available as a remedy only to one of “two or more persons [who] are or may
25 be liable for the same harm [when] one of them discharges the liability of another in whole or in 26
27 8 If the relief mentioned above is granted, it would not affect Vulcan’ s continuing 28 nuisance and trespass causes of action. The Club is not moving to Strike any statement made in those causes of action.
10 NOTICE OF DEMURRER AND DEMURRER: MEMO IN SUPPORT THEREOF 1 part by settlement or discharge of a judgment.” (Restatement (Third) of Torts § 22.) “There can 2 be no indemnity without joint and several liability by the prospective indemnitor and indemnitee.
3 . .“ Gem Developers v. Halicrafi Homes ofSan Diego, Inc., 213 Cal. App. 3d 419, 430 (1989)
4 (quoting Home Budget Loans, Inc. v. Jacoby & Meyers Law Offices, 207 Cal. App. 3d 1277, 1286
5 (1989)). Here, the Complaint contains no allegation that Vulcan and the Club are jointly liable to
6 any third party. Further, there is no evidence of Vulcan’s liability to another person regarding the
7 Site. This missing element on the face of Vulcan’s Complaint precludes Vulcan’s alleged
8 indemnity claims. A claim for indemnity does not accrue until the potential indemnitee has been
9 sued or has incurred costs. For contractual indemnity against liability, the indemnitee is entitled to 10 recover only upon becoming liable. ( 2778(1).) 11 For contractual indemnity against “claims, demands, damages or costs, expressly or in
12 equivalent terms” the indemnitee is not entitled to recover unless he has paid the claims, demands, 13 damages or costs. Civil Code § 2778(2). In addition, a plaintiff may not claim indemnity for costs 14 he has paid voluntarily. Indust. Risk Insurers v. Creole Prod. Servs., Inc., 746 F.2d 526, 527 (9th 15 Cir. 1964).
16 Here, the Club agreed to “indemnify and defend [Vulcan] and save him harmless from and
17 against any and all claims, actions, damages, liability and expenses in connection with loss of life,
18 bodily injury or damage to property arising from or out of any occurrence in, upon or at the
19 premises or the improvements[.]” (See Complaint at Ex. H, pp. 10-11.) Liability and actions fit 20 within the category of “indemnity against liability” covered by § 2778(1). Vulcan’s contractual
21 indemnity claim with respect to liabilities and actions has not yet accrued because Vulcan has not
22 been sued with respect to the Site.
23 With respect to the other indemnification categories stated in the relevant lease, which are
24 within those covered by § 2778(2), Vulcan’s indemnity claims are predicated in part on the
25 attorney’s fees incurred in this lawsuit, and presumably the federal action. (Complaint at 20.)
26 These expenses, however, were incurred voluntarily, barring an indemnity claim. Vulcan is not,
27 and never has been, under any legal compulsion to take any legal action regarding the conditions
28 at the Site. Thus, no contractual indemnity claim has accrued.
11 NflTTCi’. 1W TWMTTPPVT ANT’ 1WMTIP1?1T• MFMfl TN TIPPflTT TT-WRVfl1? 1 Furthermore, even if the indemnity provision at issue could potentially apply to voluntarily
2 incurred costs, the indemnity provision simply was not intended to apply to “the Premises” (i.e.,
3 the Site itself). Had it been, there would have been a mention about potential damage to the
4 Premises in this provision of the relevant lease. It is not. Recently, Judge Susan Illston evaluated
5 an indemnity provision similar to the one herein from a lease concerning land intended for use as a 6 landfill. SPPI-Somersville, Inc. v. TRC Cos., Inc., Nos. C 04-2648S1, 07-5825 SI, 2009 WL
7 2390347 at *7..1 1 (N.D. Cal. Aug. 3, 2009). The lease in SFPI uses the phrase “other property”
8 much like the term “property” is used in the indemnity provision here Judge Illston ultimately
9 ruled (id. at * 11) that
10 After review of the lease as a whole and the specific language of the indemnity provision, the Court concludes that “or other property” in the indemnity clause does 11 not cover damage to the land. The Court is persuaded that because the lease repeatedly uses the terms “buildings” and “structures” in particular instances and 12 “premises” and “land” in others, and because the leases explicitly stated purpose was that the land be used for landfihled waste, the parties did not intend for Antioch 13 to indemnify Standard Oil against damages to the subject land as alleged in the complaint. 14
15 The analogy is clear: In both situations the indemnity clause did not refer to potential
16 damage to the Premises, and the “lease’s explicitly stated purpose was that the land be used” for
17 depositing material (in one case waste, in the other, spent ammunition). Vulcan’s contractual
18 indemnity claim fails accordingly.
19 F. No Recognized Independent Cause of Action Exists for Negligence Per Se
20 “[Tb apply negligence per se is not to state an independent cause of action[; t]he doctrine
21 does not provide a private right of action.” Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256,
22 1285 (2006). In actuality, negligence per se is an evidentiary doctrine that, if established, raises a
23 presumption of negligence. Id. Accordingly, Vulcan’ s negligence per se claim should be
24 dismissed as legally impermissible and unnecessarily duplicative of its negligence cause of action.
25 III. CONCLUSION
26 The statutes of limitations have expired for Vulcan’ s Breach of Contract, Negligence,
27 Permanent Nuisance, Permanent Trespass, and Waste causes of action. As no tolling doctrine can
28 save these causes of action, this Court should sustain this Demurrer as to them. Apart from the
12 NnTTrv. (11? TWMfT1RF.T ANTI TI1?MTT1P1’T MVMO TN TTPPflPT THVT1’.flF I statute of limitations issue, this Court should also sustain this Demurrer as to Vulcan’s Breach of
2 Contract claim as Vulcan has not yet spent any funds cleaning up the Site and the contracts cannot
3 be reasonably interpreted to create a specific duty on the Club’s part to clean up spent
4 ammunition. This Demurrer should be sustained as to Vulcan’s permanent nuisance, permanent
5 trespass, negligence, and waste causes of action as Vulcan consented to the placement of bullets
6 on the Site. This Demurrer should be sustained as to Vulcan’s Contractual Indemnity Cause of
7 Action as Vulcan does not allege that either Vulcan, or the Club, has any liability to third-parties.
8 Finally, this Court should sustain this Demurrer as to Vulcan’s negligence per se cause of action as 9 it does not exist independent of a negligence cause of action.
10
Dated: January 26, 2012 MICHEL & ASSOCIATES, P.C. 12
13 Thomas E. Maciejewski
14 Attorney’s for Defendant San Gabriel Valley Gun Club 15
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13 (11’ TT1?TT’T ANIf 1WM111NVP. MVMfl TN cTTPPOTT T14ViV(W 1 PROOF OF SERVICE
2 STATE OF CALIFORNIA COUNTY OF LOS ANGELES 3 I, Christina Sanchez, am employed in the City ofLong Beach, Los Angeles County, California. 4 I am over the age eighteen (18) years and am not a party to the within action. My business address is 180 E. Ocean Boulevard, Suite 200, Long Beach, California 90802. 5 On January 26, 2012, I served the foregoing document(s) described as 6 DEFENDANT SAN GABRIEL VALLEY GUN CLUB’S NOTICE OF DEMURRER AND 7 DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM IN SUPPORT THEREOF 8 on the interested parties in this action by placing 9 [ ] the original [Xl a true and correct copy 10 thereof enclosed in sealed envelope(s) addressed as follows: Kenneth A. Ehrlich Paul A. Kroger JEFFER, MANGELS, BUTLER & MITCHEL, LLP 12 7th 1900 Avenue of the Stars, Floor Los Angeles, CA 90067 13
14 X (BY MAIL ) As follows: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the 15 U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party served, 16 service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. 17 Executed on January 26, 2012, at Long Beach, California.
18 (VIA OVERNIGHT MAIL As follows: I am “readily familiar” with the firm’s practice of collection and processing correspondence for overnight delivery by UPS/FED-EX. Under the 19 practice it would be deposited with a facility regularly maintained by UPS/FED-EX for receipt on the same day in the ordinary course of business. Such envelope was sealed and placed for 20 collection and delivery by UPS/FED-EX with delivery fees paid or provided for in accordance with ordinary business practices. 21 Executed on January 26, 2012, at Long Beach, California.
22 — (PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of the addressee. 23 Executed on January 26, 2012, at Long Beach, California.
24 X (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 25 (FEDEL) I declare that I am employed in the office ofthe member of the b r ofthis court 26 at whose direction the service was made.
27 CHRISTNA S CHEZ
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14 MflTTCF. (IF TWMTTTRFP AND JWMTTTTHTh MFMfl TN STJPPORT THETF(IF