Orange Co. Water Dist. v. Sabic Innovative Plastics

Filed 8/25/17 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ORANGE COUNTY WATER DISTRICT, D070553

Plaintiff and Appellant,
(Super. Ct. No. 30-2008-00078246)
v.
ORDER MODIFYING OPINION
SABIC INNOVATIVE PLASTICS US, LLC, AND DENYING PETITIONS FOR
ET AL., REHEARING

Defendants and Respondents. NO CHANGE IN JUDGMENT

THE COURT:

The petitions for rehearing are DENIED.

1. It is ordered that the opinion be modified to add the following as footnote 2

at the end of the first paragraph on page 7 (ending with "our disposition in this appeal"),

which will necessitate renumbering of all subsequent footnotes and footnote references:

2
In several petitions for rehearing, defendants proffer various
arguments, not previously raised in this appeal, why they believe they
should ultimately prevail on the District's causes of action. We express no
opinion on those arguments. In reversing the trial court's orders granting
summary adjudication as to certain causes of action, we have concluded
only that the existing record does not support summary adjudication of
those causes of action. We express no opinion whether motions for
summary adjudication based on different evidence, directed toward
different elements of the claims, or asserting different affirmative defenses
would be successful. The new arguments raised in defendants' petitions for
rehearing must be directed to the trial court in the first instance. We will
 not consider them for the first time in this appeal after our opinion has been
filed. (See Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1013.)

2. It is further ordered that the opinion be modified to delete the last sentence

of the only complete paragraph on page 55 ("UCI has not raised these affirmative

defenses or limitations on liability, and we express no opinion on their applicability") and

replace it with the following: "UCI did not raise these affirmative defenses or limitations

on liability in its motion for summary adjudication in the trial court, and it has not shown

in its briefing in this court that we may affirm based on any of these theories. We express

no opinion on their ultimate applicability or whether UCI could obtain summary

adjudication based on any affirmative defenses or limitations on liability based on a

properly argued and supported motion."

2
 3. It is further ordered that the opinion be modified to add the following as

footnote 24 at the end of the only complete paragraph on page 75 (ending with "as to the

District's negligence claim"), which will necessitate renumbering of all subsequent

footnotes:

24
In a petition for rehearing, GE Aviation argues that this conclusion
requires affirmance of the court's orders granting summary adjudication of
the District's claims under the OCWD Act and for nuisance because those
claims also require a showing that GE Aviation contaminated the soil or
groundwater at the site. GE Aviation did not make this argument, or any
site-specific argument regarding the District's claims under the OCWD Act
and for nuisance, in its briefing in this appeal. We therefore will not
consider it for the first time on rehearing. (See Conservatorship of Susan
T., supra, 8 Cal.4th at p. 1013.)

There is no change in the judgment.

BENKE, Acting P. J.
Copies to: All parties

3
Filed 8/4/17 (unmodified version)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ORANGE COUNTY WATER DISTRICT, D070553

Plaintiff and Appellant,

v. (Super. Ct. No. 30-2008-00078246)

SABIC INNOVATIVE PLASTICS US, LLC,
et al.,

Defendants and Respondents.

CONSOLIDATED APPEALS from judgments of the Superior Court of Orange

County, Nancy Wieben Stock, Judge. Affirmed in part; reversed in part and remanded

with directions.

Connor Fletcher & Hedenkamp, Edmond M. Connor, Douglas Aaron Hedenkamp;

Miller & Axline, Duane C. Miller, Michael Dana Axline and Justin Morgan Massey, for

Plaintiff and Appellant.

Squire Patton Boggs, Adam R. Fox, Helene Huang Yang and Marisol Corral

Mork, for Defendants and Respondents Sabic Innovative Plastics US, LLC, and General

Electric Company.
 Hennelly & Grossfeld and Paul T. Martin for Defendant and Respondent Emerson

Electric Company.

Beveridge & Diamond and Gary J. Smith for Defendant and Respondent UNISYS

Corporation.

Newmeyer & Dillion and John E. Van Vlear for Defendant and Respondent GE

Aviation Systems, LLC.

WFBM, Sean C. McGah and Sage R. Knauft for Defendant and Respondent

Marotta Controls, Inc.

Morrison & Foerster and Peter Hsaio; Call & Jensen and Joshua G. Simon for

Defendant and Respondent Ricoh Electronics.

Demetriou Del Guercio Springer & Francis, Brian D. Langa and Michael Anthony

Francis for Defendant and Respondent Universal Circuits, Inc.

Hinson & Gravelle and Douglas Arthur Gravelle for Defendant and Respondent

ICI Americas, Inc.

Bassi, Edlin, Huie & Blum and Paul David Rasmussen for Defendant and

Respondent Bell Industries, Inc.

Kutak Rock and Jad Terrell Davis for Defendant and Respondent Sanmina

Corporation.

Dykema Gossett and John Anthony Ferroli for Defendant and Respondent

Borgwarner Morse TEC Inc.

McGrath North Mullin & Kratz and John A. Andreasen; McGuireWoods and

Leslie Mark Werlin for Defendant and Respondent Beatrice Companies, Inc.

2
 Ring Bender, J. W. Ring, Philip M. Bender and Christine L. Hein for Defendant

and Respondent Gallade Chemical, Inc.

Ring Bender and Norman A. Dupont for Defendants and Respondents DRSS-1

LLC, and Brenntag Pacific, Inc.

Lewis, Brisbois, Bisgaard & Smith and James Angelo Geocaris for Defendant and

Respondent Accurate Circuit Engineering, Inc.

Morris Polich & Purdy and Christopher Geoffrey Foster for Defendant and

Respondent Dyer Business Associates, LP.

Musick Peeler & Garrett and Steven J. Elie for Defendant and Respondent

Steelcase, Inc.

Morgan Lewis & Bockius, David Louis Schrader and Yardena R. Zwang-

Weissman for Defendant and Respondent ITT Corporation.

Wood Smith Henning & Berman, David Ferguson Wood and Jade Tran for

Defendant and Respondent Embee, Inc.

Morrison & Foerster and Peter Hsaio for Defendant and Respondent BASF

Corporation.

The Orange County Water District (District) was created by the California

Legislature to protect and manage groundwater supplies within its territory, which covers

most of Orange County, California. The District and other regulatory agencies have long

been aware of localized groundwater contamination caused by hazardous substance

releases at various sites in the so-called "South Basin" area of Orange County. The

3
hazardous substances in question include various volatile organic compounds (VOC's)

and percholorate. A number of these sites have been the subject of government

investigations and remediation efforts over the past three decades.

In 1998, two VOC's, tetrachloroethylene (also known as perchloroethylene or

PCE) and trichloroethylene (TCE), were detected in groundwater drawn from a drinking

water well in the South Basin area operated by the Irvine Ranch Water District (IRWD).

Three years later, perchlorate was also detected in the well. The District believed these

detections reflected more extensive groundwater contamination than it had previously

been aware of. The District undertook efforts to identify the source of groundwater

contamination and engaged consultants to recommend further avenues of investigation.

The District's goal was to determine the extent of groundwater contamination in the

South Basin area and develop a plan to remediate it. Although the District's investigation

has continued, it had not yet developed a final treatment plan or remediated any

contamination by the time of the underlying litigation.

During its investigation, the District filed suit against various current and former

owners and operators of certain sites in the South Basin area that it believed were in some

way responsible for groundwater contamination, including the following defendants at

issue in this appeal: Accurate Circuit Engineering, Inc. (Accurate Circuit); Beatrice

Companies, Inc. (Beatrice); Bell Industries, Inc. (Bell); BorgWarner Morse TEC LLC

(BorgWarner); Brenntag Pacific, Inc. (Brenntag); Dyer Business Associates, LP (Dyer);

DRSS-I, LLC (DRSS); Embee, Inc. (Embee); Emerson Electric Co. (Emerson); Gallade

Chemical, Inc. (Gallade); GE Aviation Systems LLC (GE Aviation); General Electric

4
Company (GE); ICI Americas, Inc. (ICI); ITT Corporation (ITT); Marotta Controls, Inc.

(Marotta); Ricoh Electronics, Inc. (Ricoh); SABIC Innovative Plastics US, LLC

(SABIC); Sanmina Corporation (Sanmina); Soco West, Inc. (Soco West); Steelcase Inc.

(Steelcase); UNISYS Corporation (UNISYS); and Universal Circuits, Inc. (UCI). The

District sued a number of other parties that are not the subject of this appeal, either

because they were dismissed at some point in the litigation or the District has not

appealed the judgments in their favor.1

The District asserted statutory claims for damages under the Carpenter-Presley-

Tanner Hazardous Substance Account Act (HSAA; Health & Saf. Code, § 25300 et seq.)

and the Orange County Water District Act (OCWD Act; Stats. 1933, ch. 924, p. 2400;

West's Ann. Wat. Append. (2010 ed.) ch. 40) and for declaratory relief (Code Civ. Proc.,

§ 1060). The District also asserted common law claims for negligence, nuisance, and

trespass. Following numerous motions for summary judgment and summary

adjudication, and a limited bench trial on the District's ability to bring suit under the

HSAA, the trial court entered judgments in favor of the defendants on all of the District's

claims.

The District appeals. It challenges the judgments on numerous grounds. In this

opinion, we confirm that the HSAA allows the District to bring suit under the

circumstances here (Health & Saf. Code, § 25363, subd. (d)) and that the District may

1 Another party, RadioShack Corporation (RadioShack), was sued by the District
and was part of this appeal until its appellate proceedings were stayed pending resolution
of RadioShack's bankruptcy. (Orange County Water Dist. v. RadioShack Corp.
(G048970, app. pending).)
5
recover certain remediation-related investigatory costs under the OCWD Act, section 8,

subdivision (c). We will also address the HSAA's nonretroactivity provision (Health &

Saf. Code, § 25366, subd. (a)) and conclude that its requirements were not satisfied here.

We further conclude that the theory of continuous accrual applies to the District's

negligence cause of action, such that no defendant except GE Aviation has shown the

statute of limitations bars that claim.

As to the District's causes of action for trespass and nuisance, we conclude the

District has raised a triable issue of fact regarding its potential groundwater rights in the

South Basin. In doing so, we address the State of California's potential interests in

groundwater (as allegedly delegated to the District), the District's regulatory powers over

groundwater, and its rights based on its groundwater replenishment or recharge activities.

We conclude the District's potential rights in groundwater are insufficient, on the current

record in this case, to maintain a trespass cause of action. However, we determine that

triable issues of fact preclude summary adjudication of the District's nuisance claim for

all defendants except UCI. Finally, we conclude that most of defendants' site-specific

arguments (primarily based on causation) do not entitle them to summary adjudication of

any causes of action. The judgments will therefore be affirmed in part and reversed in

part, as discussed in detail below.

The litigation underlying this appeal is separate from the litigation involving the

District's remediation proposals for the "North Basin" area of Orange County, which we

considered in two recently-filed opinions. (Orange County Water Dist. v. MAG

Aerospace Industries, Inc. (2017) 12 Cal.App.5th 229 (MAG); Orange County Water

6
Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252 (Alcoa).) The North

Basin, as its name suggests, is geographically separate from the South Basin, and it is

contaminated by different plumes of hazardous substances. As we will explain, however,

several legal issues decided in the North Basin appeals (MAG and Alcoa) are relevant to

our discussion of the issues in this appeal. We will therefore reference the North Basin

appeals where appropriate. Moreover, although a number of the legal issues overlap, the

procedural postures of the North Basin and South Basin appeals are quite different. The

North Basin appeals involved judgments following a bench trial or motion for judgment

under Code of Civil Procedure section 631.8, while this South Basin appeal largely

involves judgments following orders granting summary judgment and summary

adjudication. Our standards of review in the North Basin and South Basin appeals are

therefore quite different, and this difference explains in large part the divergence between

our disposition of the North Basin appeals and our disposition in this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The District and Its Powers

The District is a public entity established by the California Legislature and

empowered to manage, replenish, regulate, and protect groundwater supplies within its

boundaries. (OCWD Act, §§ 1, 2.) Despite its name, the District is not a county water

district under the County Water District Law (Wat. Code, § 30000 et seq.) or a state

water district under the California Water District Law (id., § 34000 et seq.). Instead, it

operates under its own governing act, the Orange County Water District Act, with its own

set of powers and responsibilities.

7
 Under the OCWD Act, the District has the power to "[t]ransport, reclaim, purify,

treat, inject, extract, or otherwise manage and control water for the beneficial use of

persons or property within the district and protect the quality of groundwater supplies

within the district." (Id., § 2, subd. (6)(j).) To advance the goals of maintaining and

protecting groundwater, the District may construct waterworks, acquire water rights,

purchase and import water, store water in underground basins or surface reservoirs, and

regulate the storage and use of groundwater in the District. (Id., § 2, subds. (5), (6)(b),

(c), (d) & (f).) The District must consent to any storage of groundwater by any other

person within its boundaries (id., § 2.1, subd. (a)), and the OCWD Act requires water

producers, under threat of criminal prosecution, to register and install a device to measure

the amount of water extracted (id., § 35). The District may assess fees on water

producers, such as a "Basin Equity Assessment" to encourage responsible water

extraction (id., §§ 2, subd. (6)(m), 31.5) and a "Replenishment Assessment" based on the

amount of water extracted (id., §§ 23, 27, 29).2

The District has the power of eminent domain (OCWD Act, § 2, subd. (10)) and

broad powers to bring appropriate legal actions to further its goals and effectuate its

powers (id., § 2, subd. (9)). As to the latter, the OCWD Act provides, "To carry out the

purposes of this act, [the District shall have the power] to commence, maintain, intervene

in, defend, and compromise . . . any and all actions and proceedings now or hereafter

begun to prevent interference with water or water rights used or useful to lands within the

2 A water producer is a person who extracts groundwater, thereby "producing"
water for domestic consumption or other use.
8
district, or diminution of the quantity or pollution or contamination of the water supply of

the district, or to prevent unlawful exportation of water from the district, or to prevent

any interference with the water or water rights used or useful in the district which may

endanger or damage the inhabitants, lands, or use of water in the district. . . ." (Id., § 2,

subd. (9).) The District, however, is prohibited from intervening in disputes over water

rights within the District that do not involve pollution, contamination, exporting water

outside the District, or some threat thereof. (Ibid.)

The District also has the power to investigate and remediate pollution and

contamination in the surface and groundwater within its boundaries. (OCWD Act, § 8,

subds. (a), (b).) If the District undertakes such work, it may recover its reasonable costs

from the persons who caused the pollution or contamination under certain circumstances.

(Id., § 8, subd. (c).)

To maintain an adequate level of groundwater in its territory and protect

groundwater quality, the District acquires water from various sources at its own expense

and discharges it from District facilities in Orange County. This process replenishes or

"recharges" groundwater in the Orange County groundwater basin, of which the South

Basin is a part. The groundwater basin includes a number of aquifers, which extend up to

2,000 feet underground.

Although the District does not have any recharge facilities near the South Basin,

the District's recharge efforts raise the level of groundwater there. The groundwater level

increases because the entire basin is hydrologically connected, and the pressure response

9
from the District's recharge activities in other parts of the Orange County groundwater

basin is felt in the South Basin area.

The District's recharge activities effectively store water in the groundwater basin,

but the District does not itself use or extract groundwater. Other entities, such as the

IRWD, operate extraction wells and produce water for public drinking water supplies and

for other uses.

The South Basin, Groundwater Contamination, and the District's Response

The South Basin lies along California State Route 55 near the former Tustin

Marine Corps Air Station in southern Orange County. Defendants are current and former

owners and operators of businesses at sites in the South Basin area. At least for purposes

of this appeal, defendants appear to concede that hazardous substances were released at

or near their sites at some point in the past few decades. Further details regarding the

conditions at certain defendants' individual sites will be discussed below in connection

with those defendants' site-specific summary judgment and summary adjudication

motions. The District and other regulatory agencies were aware of hazardous substance

releases at some or all of defendants' sites well before the commencement of this

litigation, and certain sites were the subject of remediation activities under the

supervision of other public authorities.

As noted, the IRWD operates drinking water extraction wells in the South Basin

area. One such well, IRWD-3, began producing drinking water in 1997. A year later,

two VOC's, PCE and TCE, were detected in water extracted by the well. Three years

after that, perchlorate was also detected in IRWD-3.

10
 In 2006, the District engaged a consultant, Todd Engineers, to prepare a work plan

for further investigation of groundwater contamination in the South Basin. The

objectives of the work plan included identifying its probable sources and delineating its

extent. The District referred to the effort as the South Basin Groundwater Protection

Project (SBGPP) and allocated approximately $77,000 to Todd Engineers' work.

A year later, Todd Engineers submitted a "Technical Memorandum and Work

Plan" for the SBGPP. The memorandum noted that contaminants had been detected at

IRWD-3 and described the SBGPP as an effort "[t]o assist the IRWD in the assessment of

current and future threats of contamination" and "to identify the source or sources of

contamination in IRWD-3." To produce the memorandum, Todd Engineers reviewed

public agency files relating to 55 sites in the South Basin area "that had potentially

impacted groundwater." Todd Engineers identified sites where onsite and offsite

groundwater contamination had been documented and analyzed groundwater flows and

subsurface geology to determine which sites had the highest risk of contributing to

contamination in water supply wells in the South Basin.

Todd Engineers also reviewed groundwater quality data from 16 wells in the

South Basin. In addition to IRWD-3, PCE and TCE were detected in five wells. One

well, located near a contaminated site, detected PCE and TCE concentrations that far

exceeded California maximum contaminant levels (MCL's), another well detected levels

of PCE and TCE at or near MCL's, and three wells detected low or trace levels.

Todd Engineers concluded, "There is no shortage of candidate sites that could

have caused observed impacts to IRWD-3 based on site-specific monitoring data. More

11
than 30 industrial sites have impacted shallow groundwater with PCE, TCE, and/or

perchlorate at concentrations at least one order of magnitude higher than recorded in

IRWD-3." Todd Engineers identified a number of possible pathways for contamination

to have reached IRWD-3. It concluded that the actual pathway was unknown based on

existing data, but that areas northeast of IRWD-3 represented the area of highest risk to

water supply wells. Todd Engineers identified a number of key data gaps that prevented

full understanding of the nature, extent, and sources of contamination in the South Basin

area. It developed a work plan to address the data gaps. The work plan, as described by

District staff, involved a first phase of six groundwater monitoring wells and a second

phase of nine groundwater monitoring wells, as well as technical analysis of the results.

The estimated cost for the work plan was $6.1 million.

The next year, in 2008, District staff completed their own technical memorandum

and an alternate plan for investigating contamination in the South Basin. The District's

first phase plan involved six monitoring wells and associated technical analysis. The

proposed budget for this plan was $625,000. District staff indicated that a phase two

investigation would also be required, at an estimated cost of $3 to $5 million, to fully

characterize the groundwater contamination and design a remediation program. The

District completed installation of the six monitoring wells in 2009.

The District's monitoring wells confirmed the presence of VOC and perchlorate

contamination. The District authorized additional "cone penetration" testing at various

locations in the South Basin, at a cost of approximately $216,000. The District continued

its investigation, and it began to develop plans for an interim treatment system. By 2012,

12
it had engaged an environmental engineering firm to conduct a remedial investigation,

feasibility study, and remedial action plan for the SBGPP as a whole. The budget for the

firm's effort was approximately $819,000.

The District has estimated that the total cost for construction of a groundwater

treatment system for the South Basin will be in the tens of millions of dollars. By the

time of the underlying litigation, however, the District's had spent approximately $1.5

million on tasks related to the SBGPP. The District continued to develop the SBGPP, but

the interim treatment system had not begun operation and the SBGPP itself had not been

constructed. The District had not yet cleaned up any groundwater in the South Basin.

The District's Allegations Against Defendants

In 2008, the District filed this lawsuit against a number of named defendants and

400 fictitiously named defendants to address current and threatened groundwater

contamination in the South Basin. Each defendant at issue in this appeal was either

named in the District's initial complaint or substituted for a fictitiously named defendant

later during litigation. In its First Amended Complaint (FAC), the District alleged that it

had discovered VOC and perchlorate contamination in the South Basin area of Orange

County. It determined that "prompt action" was required to address threatened and

existing contamination in the South Basin and initiated the SBGPP.3

3 Later in the litigation, the District filed a Second Amended Complaint (SAC). The
SAC added allegations regarding the corporate histories of Brenntag and BorgWarner but
was otherwise substantively identical to the FAC.
13
 The FAC alleged that each defendant owned or operated a business "within the

relevant area" where hazardous wastes (i.e., VOC's or perchlorate) had been released or

that the defendant was otherwise responsible for such a release. As to certain defendants,

the FAC included details regarding groundwater contamination at a defendant's site and

specific VOC's released by that defendant. The FAC alleged, "Defendants' historical,

current, and ongoing releases and disposal of significant quantities of hazardous

substances and wastes, at various sites and facilities within the relevant area, have caused

the contamination alleged in this Complaint. VOC's and perchlorate in the soil and

groundwater, at, under, and emanating from, the sites pose an imminent and substantial

threat to public health, natural resources, and the environment."

To support the District's cause of action under the OCWD Act, the FAC alleged

that defendants "have caused and are causing" the District to incur costs to investigate

groundwater contamination and pollution and that defendants "have caused, are causing,

and will cause" the District to incur costs to remediate such contamination and pollution.

The District sought to recover these costs, as well as the costs of unspecified "increased

expenses," attorney fees, and a declaration regarding defendants' liability for future costs.

Similarly, in its HSAA cause of action, the FAC alleged that defendants' hazardous

substances releases had caused the District to incur necessary response costs, which it

sought to recover from defendants, along with a declaration as to future liability.

The District's negligence cause of action rested on allegations that defendants

failed to exercise due care in the handling, use, and remediation of hazardous substances.

Specifically, the FAC alleged that defendants negligently and recklessly failed to prevent

14
spills and other releases of hazardous substances, to monitor and discover such spills and

releases, to warn those affected, and to clean up or remediate the hazardous substances.

These negligent acts caused groundwater pollution and "[i]mpair[ed] the District's rights

to maintain the quality of groundwater throughout the District." The FAC claimed

investigation, remediation, and treatment costs, as well as other unspecified damages, as a

result of these acts. In connection with this cause of action, the FAC alleged that certain

defendants acted reprehensibly and with conscious disregard of known risks to health and

property. The District sought punitive damages against those defendants.

The FAC also alleged causes of action for trespass and nuisance. As to trespass,

the FAC alleged that the District "is the owner, actual possessor, and represents the

interests of the owners and actual possessors of property rights and interests in the

groundwater within its territory . . . ." The FAC alleged that defendants' release of

hazardous substances, negligent remediation activities, and failure to warn constituted

trespasses on the District's "property and interests" in the South Basin. The District

claimed the same investigatory, remediation, and treatment costs described above, as well

as punitive damages against certain defendants. As to nuisance, the FAC alleged that the

defendants' contamination and pollution of groundwater constituted a nuisance, which

"specially and adversely affected" the District and damaged the District's "property

rights, water rights, and interests." In connection with this cause of action, the District

claimed compensatory damages, punitive damages against certain defendants, and

equitable relief requiring defendants to abate the nuisance.

15
 The District's declaratory judgment cause of action alleged that "[a]n actual

controversy exists concerning who is financially responsible for abating actual or

threatened pollution or contamination of groundwater resources within the District by

VOC's and perchlorate." The District sought "an adjudication of the respective rights and

obligations of the parties," which it later specified as (in part) an order "declaring that

defendants are liable for the full cost of all remedial and other actions necessary to abate

and remove VOC's and perchlorate which are contaminating and threatening the district's

property . . . ."

Pretrial Proceedings

In multiple and overlapping motions for summary judgment and summary

adjudication, some (though not all) filed jointly, defendants challenged each of the

District's causes of action. Certain defendants were completely successful and obtained

judgment in their favor as a result of these summary proceedings. Other defendants

obtained summary adjudication of all of the District's causes of action except its HSAA

and declaratory relief claims. Although the individual motions brought by defendants

differed somewhat in substance, the primary grounds are summarized below. Further

detail will be provided in the next section.

As to the District's claim under the OCWD Act, defendants pointed out that the

OCWD Act allows recovery only of remediation costs, i.e., "reasonable costs actually

incurred in cleaning up or containing the contamination or pollution, abating the effects

of the contamination or pollution, or taking other remedial action." (OCWD Act, § 8,

subd. (c).) Defendants claimed that the District had not incurred any remediation costs in

16
connection with the SBGPP. Instead, the District's costs were merely "investigatory" and

therefore not recoverable under the OCWD Act. Defendants asserted that the "District

[had] no project or activity underway [that was] physically removing contamination from

the aquifer in the South Basin." In opposition, the District acknowledged that it had not

completed a final remediation plan for the South Basin or physically removed

contamination from the aquifer in the South Basin. The District contended that its

investigatory costs were encompassed within the scope of the OCWD Act's recoverable

remediation costs. The District argued these costs were part of the District's overall effort

to design, develop, and refine the SBGPP, an "iterative process" that would result in

cleanup of contamination in the South Basin. The trial court agreed with defendants and

granted the motion.

In a similar vein, certain defendants argued that the District could not pursue a

claim under the HSAA because the District was not itself liable for any contamination in

the South Basin and therefore could not seek "contribution or indemnity" as those terms

are used in the HSAA. (Health & Saf. Code, § 25363, subd. (d).) In defendants' view, an

HSAA "contribution" claim required a judgment against the District (see Coca-Cola

Bottling Co. v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1378), and an HSAA

"indemnity" claim required the District to share a common liability with defendants, i.e.,

traditional equitable indemnity (see Jocer Enterprises, Inc. v. Price (2010) 183

Cal.App.4th 559, 573 (Jocer)). The District disagreed, arguing that it could sue for

"indemnity" because it was protecting its interests in groundwater in the South Basin.

The trial court again agreed with defendants and granted several motions on that basis.

17
 Defendants challenged the District's trespass claim on the grounds that it did not

"exclusively possess" the affected groundwater and therefore could not bring such a

claim. Defendants pointed out that the District did not own any land in the South Basin

and did not extract any groundwater in the South Basin. Any rights held by the District

to regulate or appropriate groundwater in the South Basin were insufficient, in

defendants' view, to support a claim for trespass. The District opposed, arguing that its

interest in groundwater was substantial and need not be exclusive to support a trespass

claim. The trial court ruled in favor of defendants and granted defendants' motion for

summary adjudication. It explained, "While the [OCWD] Act gives the District certain

powers which may be translated into property interests in the groundwater, those interests

are not exclusive possessory interests and do not constitute ownership. They therefore do

not support a cause of action for trespass."

With respect to nuisance, defendants argued (among other things) that the District

lacked sufficient property interests in the South Basin or its groundwater to maintain an

action for private nuisance, that the District did not suffer a special injury sufficient to

maintain an action for public nuisance, and that any groundwater contamination was not a

"substantial and unreasonable" interference sufficient to support any claim for nuisance at

all. The District pointed primarily to its recharge activities as evidence that it had an

appropriative water right in groundwater in the South Basin, which was a sufficient

property right to support both a public and private nuisance.

The trial court concluded that defendants had "met their burden of establishing

that the District does not operate any groundwater production wells, does not extract or

18
pump groundwater, and[] its recharge operations would not be effective in the South

Basin[.]" The court was not persuaded that the District had any property rights in the

South Basin, including by reason of its recharge activities. The court explained, "the

District has never contemplated using the groundwater nor ever actually used the

groundwater, required elements for appropriation necessary to support nuisance." The

court further found that the District had not suffered a special injury sufficient to support

a private nuisance claim and that the presence of low levels of contaminants was not

substantial and unreasonable harm. The court therefore granted defendants' motions for

summary adjudication of the District's nuisance claim.

Defendants' common challenges to the District's negligence claim rested primarily

on the statute of limitations. Defendants claimed that the District had actual or

constructive knowledge of contamination at their sites at least as early as August 2003,

and in some cases more than 15 years before then. Defendants argued that the District's

knowledge triggered the three-year statute of limitations. (Code Civ. Proc., § 338, subd.

(b); Wilshire Westwood Assoc. v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 739-

740.) In defendants' view, because the District did not file suit until June 2008, more

than three years later, its negligence claim against defendants was time-barred. The

District opposed defendants' motions primarily on the grounds that its knowledge of

contamination at defendants' sites was insufficient to trigger the statute of limitations. In

the District's view, the statute began to run only when the District became aware of

insufficient remedial efforts or offsite harm. The trial court found in favor of the

defendants. It determined that the District either had actual knowledge or was on inquiry

19
notice of a potential claim for groundwater contamination by defendants more than three

years before the District filed its lawsuit.

In rejecting the District's contrary argument, the court reasoned, "Actual

knowledge of the full extent of the damage to property is not required before a plaintiff is

held to the standard of actual knowledge for purposes of commencing the statute of

limitations. [Citation.] For this reason, the Court does not adopt the District['s] argument

that there is no appreciable harm to the District's property interests until 'the District

confirms that contamination has escaped remedial efforts overseen by state and local

regulators and threatens or contaminates groundwater used as a drinking water

resource.[']" The court granted defendants' motions for summary adjudication of the

District's negligence claim.

A number of defendants challenged the District's claims, primarily under the

HSAA, on the alternative grounds specific to their sites (e.g., causation). The evidence

supporting these motions is varied and voluminous, and the legal theories advanced in the

motions differ among the defendants, in some cases significantly. We will discuss these

motions, and the District's responses, in detail below. It is sufficient to mention here that

the trial court granted summary adjudication in favor of several defendants on site-

specific grounds in addition to other, more general grounds.4

4 The trial court denied a site-specific summary adjudication motion filed by
Steelcase. In this appeal, Steelcase contends the court's denial was error. (See Code Civ.
Proc., § 906.) We will address Steelcase's contention below.
20
 Through these motions, and in some cases additional motions for judgment on the

pleadings challenging the District's claim for declaratory relief, Beatrice, Bell,

BorgWarner, DRSS, Emerson, Gallade, GE, GE Aviation, ICI, Marotta, Ricoh, SABIC,

Sanmina, UNISYS, and UCI obtained complete adjudication of the District's claims

against them. The trial court entered judgments in their favor accordingly, and the

District appealed.

Bench Trial and Statement of Decision

The remaining defendants at issue in this appeal obtained summary adjudication of

all the District's claims except under the HSAA and for declaratory relief. The court held

a trial on these remaining claims in June and July 2013. The initial phase of trial was

limited to the District's standing or ability to bring suit under the HSAA. Following trial,

which included witness testimony as well as documentary evidence, the court announced

an oral tentative statement of decision finding that the District could not pursue a claim

under the HSAA (Health & Saf. Code, § 25363, subd. (d)) or obtain related declaratory

relief. The court noted, "Although this trial turned out not so much to be about standing,

the time spent here has been very valuable in the court's opinion. This trial has afforded a

certain freedom and stretching of the imagination not otherwise offered in summary

adjudication hearings. The process involving, as it did, the introduction of evidence, has

brought us full [circle] to a close analysis of the very statute that started the inquiry."

The court's written statement of decision comprehensively analyzed the language,

history, and structure of the HSAA. The court believed that the phrase "contribution or

indemnity" should be analyzed together as two various of the same concept, i.e., the

21
allocation of damages among multiple tortfeasors. "Indemnity" in the court's view meant

traditional equitable indemnity, which requires that the parties be responsible for a joint

legal obligation.5

Based on the evidence presented at trial, the court found that the District was not a

responsible party under the HSAA and therefore could not maintain a claim for

indemnity. A District employee testified that the District does not own any real property

(including any overlying land) in the South Basin. Nor does the District pump or extract

any groundwater in the South Basin. Another District employee referenced the District's

diversion rights with respect to the Santa Ana River, but the point of diversion was miles

away from the South Basin.

Given this conclusion, the court found that the District's claim for declaratory

relief must fail. The court had previously determined that the District's declaratory relief

claim was entirely dependent on its other claims. Having determined that the District's

remaining claims had no merit (either by summary adjudication or at trial), the court

found against the District on its declaratory relief claim as well.

The court entered judgment against the District and in favor of Accurate Circuit,

Brenntag, Dyer, Embee, ITT, Soco West, and Steelcase. The District again appealed.

5 Citing Jocer, supra, 183 Cal.App.4th at page 573, the court stated its view that
only two forms of indemnity are recognized in California: express indemnity grounded
in contract and traditional equitable indemnity. As we explain in part II.B. post, we
disagree that indemnity in California is limited to these two forms.
22
 DISCUSSION

I. Standards of Review

The District appeals judgments following motions for summary judgment and

summary adjudication, motions for judgment on the pleadings, and a bench trial. The

standards governing our review of summary judgment and summary adjudication

proceedings are substantively identical. (See California Bank & Trust v. Lawlor (2013)

222 Cal.App.4th 625, 630.) Our review in either case is de novo. (Id. at p. 631; see

Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1249 (Conroy).)

"A defendant's motion for summary judgment should be granted if no triable issue

exists as to any material fact and the defendant is entitled to a judgment as a matter of

law. [Citation.] The burden of persuasion remains with the party moving for summary

judgment. [Citation.] When the defendant moves for summary judgment, in those

circumstances in which the plaintiff would have the burden of proof by a preponderance

of the evidence, the defendant must present evidence that would preclude a reasonable

trier of fact from finding that it was more likely than not that the material fact was true

[citation], or the defendant must establish that an element of the claim cannot be

established, by presenting evidence that the plaintiff 'does not possess and cannot

reasonably obtain, needed evidence.' " (Kahn v. East Side Union High School Dist.

(2003) 31 Cal.4th 990, 1002-1003 (Kahn).) "The materiality of a disputed fact is

measured by the pleadings [citations], which 'set the boundaries of the issues to be

resolved at summary judgment.' " (Conroy, supra, 45 Cal.4th at p. 1250.) "If the

defendant fails to meet this initial burden, it is unnecessary to examine the plaintiff's

23
opposing evidence; the motion must be denied." (San Jose Construction, Inc. v.

S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1534 (San Jose Const.).)

"If the defendant 'carries his burden of production, he causes a shift, and the

opposing party is then subjected to a burden of production of his own to make a prima

facie showing of the existence of a triable issue of material fact.' [Citation.] 'The

plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show

that a triable issue of material fact exists but, instead, shall set forth the specific facts

showing that a triable issue of material fact exists as to that cause of action . . . .' "

(Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1497 (Schmidt).)

"[T]o determine whether there is a triable issue, we review the evidence submitted

in connection with summary judgment, with the exception of evidence to which

objections have been appropriately sustained." (Frittelli, Inc. v. 350 North Canon Drive,

LP (2011) 202 Cal.App.4th 35, 41 (Frittelli).) "We liberally construe the evidence in

support of the party opposing summary judgment and resolve doubts concerning the

evidence in favor of that party." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028,

1037.) "There is a triable issue of material fact if, and only if, the evidence would allow a

reasonable trier of fact to find the underlying fact in favor of the party opposing the

motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)

Courts are split regarding the proper standard of review for the trial court's

evidentiary rulings in connection with motions for summary judgment and summary

adjudication. (Compare Miranda v. Bomel Construction Co. (2010) 187 Cal.App.4th

24
1326, 1335 [abuse of discretion] with Pipitone v. Williams (2016) 244 Cal.App.4th 1437,

1451 (Pipitone) [de novo].) We need not address that split because, as we will explain,

we need not reach any of the evidentiary disputes raised by the parties in their briefing.

This circumstance is due, in part, to the District's failure to challenge certain evidentiary

rulings in its appellant's brief. In many cases, the District simply cited the excluded

evidence without noting the court's ruling. This was doubly improper: It gave the

misleading impression that the evidence had been admitted, and it waived any argument

that that the court's evidentiary rulings were erroneous.

"Though summary judgment review is de novo, review is limited to issues

adequately raised and supported in the appellant's brief." (Christoff v. Union Pacific

Railroad Co. (2005) 134 Cal.App.4th 118, 125.) This principle applies equally to the

trial court's evidentiary rulings. (Roe v. McDonald's Corp. (2005) 129 Cal.App.4th 1107,

1114; Frittelli, supra, 202 Cal.App.4th at p. 41.) Here, with few exceptions, because the

District did not raise its challenges until its reply brief, we treat those challenges as

waived. (Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 864, fn. 12

["[T]he issue was waived as to this court because it was noted only in appellants' reply

brief, and not in their opening brief."]; Campos v. Anderson (1997) 57 Cal.App.4th 784,

794, fn. 3.)6

6 The District points out that the reviewing court in Pipitone concluded that the
appellant did not waive her evidentiary challenges by failing to raise them in her opening
brief. (Pipitone, supra, 244 Cal.App.4th at p. 1452 ["We . . . do not accept the argument
that because [appellant] failed to expressly challenge the trial court's evidentiary rulings
excluding portions of the declarations and the entirety of [her] expert report, we must
25
 "We review the granting of a motion for judgment on the pleadings de novo to

determine whether a cause of action has been stated, treating as true all properly pleaded

material facts." (Soco West, Inc. v. California Environmental Protection Agency (2013)

213 Cal.App.4th 1511, 1514.) And, while we review the court's factual findings

following a bench trial for substantial evidence, we are not bound by the trial court's

determination of questions of law. "Under the general rules applicable to a trial court's

statement of decision, an appellate court independently reviews questions of law and

applies the substantial evidence standard to findings of fact." (Central Valley General

Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.)

defer to those rulings without considering whether the trial court's exclusion of
potentially material evidence was proper."].) In a footnote, the Pipitone court explained,
"There is no question that [appellant's] opening brief on appeal should have denoted
which evidence in her moving papers had been excluded based on objections sustained
by the trial court. Even so, each respondent has had the opportunity to address his
objections raised and sustained below, and we consider the issue of the evidentiary
rulings to be properly before this court as part and parcel of the appeals from the
summary judgments." (Id. at p. 1451, fn. 12.) The import of Pipitone's holding is
somewhat unclear. If Pipitone stands for the proposition that a reviewing court has the
authority, in its discretion, to excuse an appellant's failure to raise a claim of error in her
opening brief, provided that the respondent has an adequate opportunity to brief the issue,
that proposition is uncontroversial. (See, e.g., Jameson v. Desta (2009) 179 Cal.App.4th
672, 674, fn. 1.) If, however, Pipitone is read to excuse an appellant generally from the
requirement to raise errors in the trial court's evidentiary rulings or risk a finding of
waiver, we respectfully disagree. Here, even though we have the authority to excuse the
District's failure to raise issues in its opening brief, it has established no basis for us to
exercise our discretion in that regard. (See Jay v. Mahaffey (2013) 218 Cal.App.4th
1522, 1542 ["There is absolutely no sound reason [why] this issue could not have been
raised in the [appellants'] opening brief."].)
26
 II. HSAA

A. Overview of Disputed Issues

In their motions for summary adjudication and during the bench trial, defendants

challenged the District's HSAA claim on several grounds. Defendants primarily argued

the HSAA did not provide for a private action by the District in the absence of evidence

that it was jointly liable with defendants for costs arising from contamination in the South

Basin, i.e., the HSAA provided only for a private action for traditional equitable

indemnity. We considered this issue in our recent Alcoa opinion and concluded that the

District was able to bring suit for statutory indemnity under the HSAA even without

proof it was jointly liable with the defendants. (See Health & Saf. Code, § 25363, subd.

(d); Alcoa, supra, 12 Cal.App.5th at pp. 298-304.) For reasons we explain, we will

adhere to that interpretation here.

Defendants also raised a number of specific arguments based on the facts and

expert analyses of their sites and activities. These arguments, and the facts and analyses

on which they are based, are complex and unique to each site, but they largely raise

questions of causation and the identification of potentially responsible parties. We will

discuss them in detail below. We conclude that none of the defendants were entitled to

summary adjudication of the District's HSAA claim on these site-specific grounds. One

defendant, Marotta, asserted a defense based on the HSAA's nonretroactivity provision.

(See Health & Saf. Code, § 25366, subd. (a).) For reasons we will explain, we conclude

Marotta did not establish the elements of this defense and was therefore not entitled to

summary adjudication on this basis either.

27
 B. The District's Ability to Bring Suit

The District argues that the court erred in finding, on summary adjudication and

following its bench trial, that the District could not bring suit for "contribution or

indemnity" under the HSAA in the absence of evidence that the District itself was jointly

liable for remediation costs stemming from groundwater contamination in the South

Basin. The HSAA reads in relevant part as follows: "A person who has incurred

response or corrective action costs in accordance with this chapter, Chapter 6.5

(commencing with Section 25100), or the federal act may seek contribution or indemnity

from any person who is liable pursuant to this chapter." (Health & Saf. Code, § 25363,

subd. (d).)7

We comprehensively examined the scope of the HSAA's private right of action in

our recent Alcoa opinion. (Alcoa, supra, 12 Cal.App.5th at pp. 298-304.) We concluded

that the term "indemnity," as used Health and Safety Code section 25363, encompasses a

plaintiff's cause of action for reimbursement of costs even where (as here) the plaintiff is

not jointly liable for such costs. We explained, "The HSAA's private right of action

appears to be an instance of 'statutory indemnity,' which Black's Law Dictionary defines

as '[i]ndemnity conferred by legislation' and cites as an example the common statutory

obligation of corporations to indemni[f]y their personnel." (Id. at p. 301.) Other

7 The quoted language became effective on January 1, 2016. (Stats. 2015, ch. 458,
§ 2.) Prior to that date, among other changes, the beginning of the first sentence read,
"Any person who has incurred removal or remedial action costs in accordance with this
chapter . . . ." (Former Health & Saf. Code, § 25363, subd. (e).) These changes do not
appear to affect the substance of this appeal, so we will refer to the current language in
our discussion.
28
instances of statutory indemnity exist outside the HSAA. (See, e.g., Lab. Code, § 2802;

Civ. Code, §§ 1833, 3336; see also Alcoa, at pp. 301-302.) We rejected the argument,

advanced by defendants and adopted by the trial court here, that a private cause of action

for indemnity under the HSAA is limited to plaintiffs who can establish the elements of

traditional equitable indemnity. (Alcoa, at pp. 300-301.) Instead, the HSAA allows any

plaintiff "who has incurred response or corrective action costs" to seek reimbursement of

those costs from a liable person, provided it can establish the other elements of a claim.

(Health & Saf. Code, § 25363, subd. (d); Alcoa, at pp. 300-301.)

Defendants' arguments to the contrary effectively mirror those which we

considered and found unpersuasive in Alcoa. We have assessed the arguments advanced

in this appeal, including based on legislative history, and do not believe reconsideration

of our conclusions in Alcoa is warranted. We therefore conclude that the trial court erred

by rejecting the District's HSAA claim on the basis that the District had no ability to sue

because it had not demonstrated that it was liable for remediation costs caused by

groundwater contamination in the South Basin.

C. HSAA Elements: Causation and Potentially Responsible Parties

As noted, several defendants moved for summary adjudication of the District's

cause of action under the HSAA on alternative grounds. These defendants challenged the

District's ability to prove the elements of its HSAA claim, specifically the elements of

causation and potentially responsible parties.

The HSAA is California's counterpart to the federal Comprehensive

Environmental Response, Compensation, and Liability Act of 1980 (CERCLA; 42 U.S.C.

29
§ 9601 et seq.). (Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th

857, 865, fn. 4.) Although the HSAA and CERCLA are not identical, the HSAA adopts

CERCLA's standards for determining liability. (Health & Saf. Code, § 25323.5, subd.

(a)(1).) A private cause of action under the HSAA therefore has the same elements as a

cause of action under CERCLA. (Alcoa, supra, 12 Cal.App.5th at p. 298; Gregory

Village Partners, L.P. v. Chevron U.S.A., Inc. (N.D.Cal. 2011) 805 F.Supp.2d 888, 897.)

Under CERCLA and the HSAA, " '[t]o prevail in a private cost recovery action, a

plaintiff must establish that (1) the site on which the hazardous substances are contained

is a "facility" under CERCLA's definition of the term, Section 101(9), 42 U.S.C.

§ 9601(9); (2) a "release" or "threatened release" of any "hazardous substance" from the

facility has occurred, 42 U.S.C. § 9607(a)(4); (3) such "release" or "threatened release"

has caused the plaintiff to incur response costs that were "necessary" and "consistent with

the national contingency plan," 42 U.S.C. §§ 9607(a)(4) and (a)(4)(B); and (4) the

defendant is within one of four classes of persons subject to the liability provisions of

Section 107(a) [42 U.S.C. § 9607(a)].' " (Carson Harbor Village, Ltd. v. Unocal Corp.

(9th Cir. 2001) 270 F.3d 863, 870-871 (Carson Harbor) [en banc].)

The third element, causation, focuses on whether a release or threatened release of

hazardous substances from a site caused a plaintiff's necessary response costs.8 The

causation requirement is based on the site at issue. (Alcoa, supra, 12 Cal.App.5th at p.

8 The requirement of consistency with the national contingency plan is not at issue
in this appeal and will therefore be omitted from our discussion of this element. (Cf.
Alcoa, supra, 12 Cal.App.5th at pp. 297-305.)
30
306 ["[A plaintiff] is only required to show a release or threatened release from a site and

a causal connection between that release or threatened release and its response costs."].)

For purposes of this element, the identity of the person who caused the release or

threatened release is irrelevant. "It is clear from the text, structure, and legislative history

of [42 U.S.C. § 9607] that the provision does not require a plaintiff to show that a

particular defendant caused either the release or the incurrence of response costs in order

to prove liability." (Kalamazoo River Study Group v. Menasha Corp. (6th Cir. 2000) 228

F.3d 648, 655 (Kalamazoo River); see United States v. Alcan Aluminum Corp. (3d Cir.

1992) 964 F.2d 252, 265 (Alcan Aluminum).)

A response cost is " 'necessary' " if "there is a threat to human health or the

environment and . . . the response action is addressed to that threat." (Carson Harbor,

supra, 270 F.3d at p. 872; see Alcoa, supra, 12 Cal.App.5th at pp. 327-328.) The

necessity requirement may be met "if it is shown that any release violates, or any

threatened release is likely to violate, any applicable state or federal standard, including

the most stringent." (Amoco Oil Co. v. Borden, Inc. (5th Cir. 1989) 889 F.2d 664, 670-

671; see Alcoa, at p. 328 ["The presence of VOC contamination at significant levels was

a threat to human health and the environment."].) "Investigatory costs incurred 'in order

to assist with and help plan the eventual remediation and cleanup efforts' are necessary

under CERCLA [citation] and ' "are recoverable even absent any subsequent recoverable

response costs" ' [citation]." (Alcoa, at pp. 327-328.)

The fourth element, potentially responsible parties, defines potential liable

defendants by their relationship to the site at issue. "[T]he version [of CERCLA]

31
ultimately passed by Congress . . . imposed liability upon a class of responsible persons

without regard to whether the person specifically caused or contributed to the release and

the resultant response costs." (Alcan Aluminum, supra, 964 F.2d at p. 265.) "These

categories are based on the defendant's relationship to the site, not the defendant's

relationship to the release or threatened release that caused the incurrence of response

costs." (Alcoa, supra, 12 Cal.App.5th at p. 306.) As relevant here, these categories

include (1) the current "owner and operator" of the site at issue and (2) "any person who

at the time of disposal of any hazardous substance owned or operated any facility at

which such hazardous substances were disposed of." (42 U.S.C. § 9607(a)(1)-(2).)

"Disposal" in this context means "the discharge, deposit, injection, dumping,

spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or

water so that such solid waste or hazardous waste or any constituent thereof may enter

the environment or be emitted into the air or discharged into any waters, including

ground waters." (42 U.S.C. §§ 6903(3), 9601(29).) Because this definition includes

actions that "may" lead to hazardous substances entering the environment, the hazardous

substances need not actually reach the environment for an action to constitute a disposal.

(Voggenthaler v. Maryland Square LLC (9th Cir. 2013) 724 F.3d 1050, 1064

(Voggenthaler).)

In their motions, several defendants challenged the District's ability to prove one

or both of these elements. We will discuss each defendant or group of related defendants

in turn. In summary, we conclude none of these defendants—BorgWarner and Emerson,

32
GE Aviation, Marotta, Ricoh, Sanmina, Steelcase, and UCI—has demonstrated

entitlement to summary adjudication of the District's HSAA claim.

1. BorgWarner and Emerson

From 1955 to 1973, a predecessor of BorgWarner (according to the District's

allegations) owned and operated a manufacturing plant at a site at 3300 South Standard

Street in Santa Ana. It sold the site to Emerson in 1973. Emerson owned and operated

the site until 1988 and continued to operate the site under lease until 1991. Emerson used

the site for manufacturing electrical equipment.

When Emerson sold the site in 1988, preliminary environmental investigations led

to concerns that "the historical use of halogenated [VOC's] may have resulted in the

discharge of VOCs at the site." Further investigations revealed that "VOCs had

significantly impacted soil and groundwater underlying the site," in decreasing

concentrations down to at least 80 feet below the surface. Emerson developed a

corrective action plan to remediate the site, which the Regional Water Quality Control

Board (RWQCB) approved. The plan involved construction of a 1,190-foot bentonite

slurry wall, over 2 feet thick, around the two primary sources of VOC contamination.

The wall extended down to a clay aquitard, approximately 65 feet below the surface.

Approximately 7.5 million gallons of groundwater and 40,600 tons of soil within the

slurry wall were extracted, removed, and treated. Treated soil was then backfilled at the

site.

Following these remediation efforts, significant contamination remained in

groundwater. One groundwater monitoring well near the contamination sources detected

33
13,145 parts per billion (ppb) of total VOC's. Emerson proposed a further remediation

work plan, consisting of a dual vacuum extracting and air sparging system with injection

of hydrogen peroxide. The RWQCB approved the plan. The system operated for

approximately six months, and it significantly reduced the concentration of VOC's in

groundwater. By April 1998, the average concentration of total VOC's in groundwater

monitoring wells at the site was 256 ppb. An offsite monitoring well detected only TCE,

at a concentration of 2.2 ppb, a decrease from 13 ppb three years earlier.9

In March 1999, the RWQCB issued a "no further action" letter regarding the

Emerson site. The RWQCB wrote, "Emerson has satisfactorily completed groundwater

remediation at this site. Concentrations of VOCs in groundwater have been significantly

reduced from over 100,000 ppb to an average of 256 ppb. The lateral and vertical extent

of groundwater that has been impacted by VOCs is very limited, and is primarily

confined to the area within the boundary of the slurry wall. Based on the mass and

concentrations of VOCs that remain in the groundwater, the VOCs are not considered to

be a threat to the beneficial uses of the Santa Ana Pressure Groundwater Subbasin. On

the condition that the information provided to us was accurate and representative of

existing groundwater conditions at the site, no further investigation or remediation of

groundwater is required." The RWQCB concluded that "no further action at the site is

necessary."

9 The applicable MCL's for the relevant VOC's in drinking water are 5 ppb for TCE
and PCE, 6 ppb for 1,1-dichloroethylene (1,1-DCE), and 200 ppb for 1,1,1-
trichloroethane (TCA). (See Cal. Code Regs., tit. 22, § 64444.)
34
 The RWQCB employee responsible for reviewing the Emerson site testified at

deposition that "the VOCs that were left in the soil and groundwater did not represent a

threat to the beneficial uses of groundwater in the basin because [] the amount remaining

was so much less than what was there originally and . . . what was left was situated in the

perched groundwater zone above the clay layer which exists above the primary

groundwater producing zone. [¶] And that with the concentrations and what limited

mass was left at the site and the lack of transport of VOCs at the site historically, that

what was left there was not going to migrate into the deeper groundwater and impact any

existing or future groundwater production wells for drinking water."

A District expert, Anthony Brown, acknowledged he "could not conclude that it is

more likely than not that releases of contaminants at the Emerson facility pose a threat to

water supply wells." He believed it was reasonable for the RWQCB to conclude, based

on the data available at the time, that the remaining VOC's at the Emerson site did not

constitute a threat to beneficial uses of the groundwater basin. He also believed it was

reasonable for the RWQCB to close its review of the site. Brown could not say whether

additional onsite or offsite remediation would be required.

Based on these facts, BorgWarner and Emerson challenge the District's ability to

prove that its response costs were "necessary" under the HSAA's third element, i.e.,

whether there is evidence that VOC releases from the Emerson site pose a threat to

human health or the environment. (See Carson Harbor, supra, 270 F.3d at pp. 871-872;

see also Alcoa, supra, 12 Cal.App.5th at pp. 327-328.) BorgWarner and Emerson argue

there is no triable issue of fact regarding whether the releases are such a threat because

35
the RWQCB found that VOC's at the Emerson site were not a threat to beneficial uses of

groundwater, and they further argue the District's expert did not rebut that conclusion.

This argument ignores the fact that VOC contamination remains in groundwater

both at the Emerson site and offsite. At the Emerson site, the evidence shows that total

groundwater VOC concentrations remained at 256 ppb after remediation. This

concentration exceeds the applicable MCL's for the relevant VOC's in drinking water, as

noted above: 5 ppb for TCE and PCE, 6 ppb for 1,1-DCE, and 200 ppb for TCA. (See

Cal. Code Regs., tit. 22, § 64444.) A reasonable trier of fact could find that these

concentrations posed a threat to human health or the environment, notwithstanding the

RWQCB's conclusion that no further action was necessary at the site. (Alcoa, supra, 12

Cal.App.5th at p. 328; Amoco Oil Co. v. Borden, Inc., supra, 889 F.2d at p. 671; United

Alloys, Inc. v. Baker (C.D.Cal. 2011) 797 F.Supp.2d 974, 996.) Similarly, while TCE

concentrations offsite had decreased from 13 ppb to 2.2 ppb, because levels of offsite

contamination exceeded applicable MCL's in the past and some offsite contamination

remained, a reasonable trier of fact could conclude that offsite groundwater

contamination posed a threat to human health or the environment as well.

BorgWarner and Emerson point out that hydrogeological conditions at the

Emerson site make it unlikely that groundwater contamination would migrate to a depth

sufficient to impact drinking water production wells. But drinking water production

wells are not the only environmental resource worth protecting. The environment

includes both shallow and deep aquifers, and significant VOC contamination even in

36
shallower groundwater could reasonably pose a sufficient threat to the environment

justifying response costs.

Although the conclusions of the RWQCB and the admissions of the District's

expert are persuasive evidence that further action at the Emerson site would be

unnecessary, in light of the undisputed VOC contamination that remains at the site, we

cannot say as a matter of law that this evidence would require a reasonable trier of fact to

find that such contamination at the site does not pose a threat to human health or the

environment. Defendants' evidence therefore does not "preclude a reasonable trier of fact

from finding" in the District's favor on this element. (Kahn, supra, 31 Cal.4th at p.

1003.) Summary adjudication of the District's HSAA claim on this basis was therefore

error. (See San Jose Const., supra, 155 Cal.App.4th at p. 1534.)

2. GE Aviation

GE Aviation or its predecessors have leased a site at 2036 and 2040 East Dyer

Road in Santa Ana since 1999. GE Aviation is the current operator of the site. It

manufactures aircraft parts and equipment and, as part of its operations, uses various

solvents, including PCE. Although solvents were detected in groundwater at the site, GE

Aviation denied any responsibility for groundwater contamination. Brown, the District's

expert, testified that he would not be able to conclude it was more likely than not that any

37
hazardous substance releases at the site occurred after 1991, i.e., during the tenancy of

GE Aviation or its predecessors.10

Based on these facts, GE Aviation argues that it cannot be a potentially

responsible party under the fourth element of an HSAA and CERCLA claim. It contends

that it can be liable under that element only if the District presents evidence that a

hazardous substance release or disposal occurred during its tenancy. GE Aviation is

incorrect. The current operator of a site is, under most circumstances, a potentially

responsible party under CERCLA and the HSAA. (42 U.S.C. § 9607(a)(1).) "[U]nder

CERCLA, an operator is simply someone who directs the workings of, manages, or

conducts the affairs of a facility. To sharpen the definition for purposes of CERCLA's

concern with environmental contamination, an operator must manage, direct, or conduct

operations specifically related to pollution, that is, operations having to do with the

leakage or disposal of hazardous waste, or decisions about compliance with

environmental regulations." (United States v. Bestfoods (1998) 524 U.S. 51, 66-67

(Bestfoods).)

An operator need not itself have caused contamination or pollution to be liable;

there is no exception to liability for "innocent" operators. (Litgo New Jersey Inc. v.

Commissioner New Jersey Dept. of Environmental Protection (3d Cir. 2013) 725 F.3d

10 We note that GE Aviation's statement of facts in its separate respondent's brief is
inadequate. To support its factual assertions, GE Aviation provides citations only to its
own memorandum of points and authorities in support of its motion for summary
judgment in the trial court. The Rules of Court require citation to the underlying
evidence itself. (See Cal. Rules of Court, rule 8.204(a)(1)(C); Jackson v. County of Los
Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4 (Jackson).)
38
369, 381 (Litgo).) "The statute does not require a showing that the operator was directly

responsible for the release of a hazardous substance for [potentially responsible party]

liability to attach. [Citations.] Indeed, in the case of a current operator, as opposed to a

past operator, the plaintiff is not even required to show that the party was an operator

when an active 'disposal' of hazardous waste occurred." (Id. at p. 381.) "In defining

'operator,' the Supreme Court employed broad, passive language: an operator is one who

is involved in operations 'having to do with the leakage or disposal of hazardous waste,'

[citation], not one who is involved in operations 'causing' or 'leading to' the leakage or

disposal of waste. Moreover, the Court expressly noted that operator liability may be

imposed when a party is responsible for 'decisions about compliance with environmental

regulations . . . .' " (Id. at p. 382.)

GE Aviation presented evidence that, at most, showed that a hazardous substance

release had not occurred during its tenancy. It did not present evidence, for example, that

it is not responsible for decisions about compliance with environmental regulations. GE

Aviation therefore failed to meet its burden on summary judgment to show that the

District could not establish this element of its HSAA claim, i.e., that it was not a

potentially responsible party as a current operator. (See Kahn, supra, 31 Cal.4th at p.

1003.) It was error to grant summary adjudication on this basis. (See San Jose Const.,

supra, 155 Cal.App.4th at p. 1534.)

GE Aviation also argues that the District cannot establish causation. It claims it

satisfied its burden on summary judgment by showing that it did not cause contamination

(i.e., a hazardous substance release) at the site. GE Aviation misinterprets the causation

39
requirement under the HSAA. As noted above, the District need not show that GE

Aviation caused a release at the site. Instead, the HSAA's causation element requires the

District to show that a release at the site—from whatever source—caused the District's

necessary response costs. As a current operator, GE Aviation is strictly liable for any

such releases, regardless when they occurred. (See Litgo, supra, 725 F.3d at p. 381.)

Because GE Aviation has not made an adequate evidentiary showing under the correct

standard, it is not entitled to summary adjudication on this basis either.11

3. Marotta

Marotta owned a site at 2215 South Standard Avenue in Santa Ana from

approximately 1954 until 1972. Its operations at the site included engineering,

manufacturing, and testing pneumatic and hydraulic valve components. In its

manufacturing processes, Marotta used TCE and PCE. TCE and PCE have been detected

in soil and groundwater at the site.

A District employee testified at deposition that VOC contamination of soil and

groundwater at the site occurred sometime before 1992. However, the District did not

have any more specific information regarding when the VOC release or releases occurred

11 At oral argument, GE Aviation argued it was entitled to summary adjudication
because it had established a complete defense to the District's HSAA claim based on third
party liability. (See Health & Saf. Code, § 25325.5, subd. (b); 42 U.S.C. § 9607(b)(3).)
GE Aviation did not include this argument in its briefing. We therefore decline to
consider it. (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1027, fn. 2
(Ace American) ["We need not consider an argument not mentioned in the briefs and
raised for the first time at oral argument."].)
40
or whether Marotta was the source. Brown, the District's expert witness, could not say

whether it was more likely than not that Marotta released contaminants at the site.

Marotta argues it was entitled to summary adjudication of the District's HSAA

claim because it did not "release[]" chemicals at the site. Although Marotta advanced this

argument in the trial court, the court did not reach this argument because it ruled in

Marotta's favor on a retroactivity defense. (We will discuss this retroactivity defense in

part II.D., post.) We will consider Marotta's argument, however, as a potential alternative

ground on which to affirm. (See Schmidt, supra, 223 Cal.App.4th at p. 1498.)

Marotta's argument does not contain any legal analysis of the standards for

liability under the HSAA or any citation to legal authority on that issue. As such, it is

unpersuasive. And, in any event, Marotta's liability under the HSAA does not depend on

whether the District can prove Marotta caused a "release" of hazardous substances at its

site. Its liability as a former owner requires a showing only that it "disposed of"

hazardous substances there. (42 U.S.C. § 9607(a)(2); Voggenthaler, supra, 724 F.3d at p.

1064.) Because Marotta's evidence does not show that the District cannot prevail on this

element, the trial court properly denied summary adjudication of the District's HSAA

claim on this basis. (See Kahn, supra, 31 Cal.4th at p. 1003; San Jose Const., supra, 155

Cal.App.4th at p. 1534.)

4. Ricoh

Ricoh manufactures various electronic components at several sites in Orange

County. From 1978 through 1988, its manufacturing process for one such component,

copy machine drums, involved the use of PCE. Testing in 1996 revealed PCE

41
contamination in soil and shallow groundwater at two Ricoh sites. Ricoh embarked on a

multistage remediation effort approved by the RWQCB. The effort included a

groundwater treatment and extraction system, a dual-phase extraction system, and

chemical injections.

Ricoh moved for summary adjudication of the District's HSAA claim on the

District's ability to bring suit as well as site-specific grounds. The trial court agreed,

consistent with its prior rulings, that the District could not bring a claim for contribution

or indemnity under the statute. Under the heading "Site-Specific Claim(s)," the court

determined that Ricoh's efforts to remediate onsite contamination had been effective but

that offsite contamination may remain. The court concluded that Ricoh's evidence

regarding onsite contamination "would likewise support summary adjudication on this

independent basis," but the same could not be said of offsite contamination. As to offsite

contamination, the court explained, "the [c]ourt declines to find that Ricoh has met its

evidentiary burden in this area and so[] does not base the aforementioned granting of

summary adjudication on this evidence."

In its opening brief, the District asserted that Ricoh did not obtain summary

adjudication on "causation-related" grounds. Ricoh disputes this assertion, claiming in its

separate respondent's brief that the court's summary judgment ruling was "based on

Ricoh's site-specific evidence in granting summary judgment on all causes of action."

Later in the same brief, Ricoh repeats this claim: "As noted at the outset, the trial court

granted Ricoh's motion for summary judgment on alternative grounds — the grounds

42
applicable to all Group One Defendants and the site-specific grounds applicable only to

Ricoh."

Ricoh's claims are so broad as to be misleading. Ricoh does not distinguish

among its causes of action, and it does not discuss the trial court's mixed ruling on the

District's HSAA claim specifically. Nor does Ricoh explain how the court's conclusion,

that triable issues of fact remained on the District's HSAA claim, could be interpreted as

an alternate ground on which the court based summary judgment. A motion for summary

adjudication may not be granted if it resolves only part of a cause of action (Code Civ.

Proc., § 437c, subd. (f)(1)), absent stipulation by the parties and compliance with other

procedural requirements (id., § 437c, subd. (t)).

Ricoh argues that the District's failure to address site-specific grounds for

summary judgment in its opening brief forfeits any claim of error on appeal. (See

Christoff v. Union Pacific Railroad Co., supra, 134 Cal.App.4th at pp. 125-126.) But, as

we have discussed, the trial court did not grant summary adjudication of the District's

HSAA claim on grounds specific to Ricoh's site. Instead, it found that triable issues of

fact remained as to offsite contamination. Because the trial court did not adopt any site-

specific grounds for summary adjudication, the District was not required to address them

in its opening brief. No forfeiture occurred.12

12 An appellant is required to raise and support claims of error in its opening brief or
they will be forfeited. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) But the
trial court's failure to adopt grounds for summary judgment or summary adjudication
urged by the respondent does not constitute an error from an appellant's point of view.
The appellant therefore need not address them in its opening brief (though it may do so).
43
 Ricoh further argues, in cursory fashion, "Alternatively, Ricoh's judgment should

be affirmed based on the merits of its site-specific showing. As the trial court found, the

elements of causation and damages are negated for every cause of action because

undisputed evidence established that there is no threat to drinking water due to any

alleged Ricoh contamination." Ricoh again misstates the trial court's findings. For the

HSAA cause of action, the trial court did not find that the elements of causation and

damages were "negated." Moreover, Ricoh does not discuss the merits of the District's

causes of action at all. Instead, it again asserts that the District forfeited any claim of

error because it did not discuss grounds for summary adjudication specific to Ricoh's site.

Ricoh's argument is unpersuasive for the reasons we have already discussed.

Ricoh offers no other argument why its motion for summary adjudication should

have been granted on site-specific grounds. Ricoh has therefore not shown it is entitled

to summary adjudication on this basis.

5. Sanmina

Sanmina (or its predecessor) owned a site at 2215 South Standard Avenue in Santa

Ana from 1987 until 1998. Sanmina manufactured circuit boards there. Sanmina's

manufacturing process involved the use of the VOC solvent 1,1,1-TCA. Sanmina applied

for a permit from the South Coast Air Quality Management District for a cold degreaser

Indeed, "[i]n an appeal from a summary judgment . . . we are statutorily prohibited from
affirming the judgment on a ground not relied on by the trial court unless we first afford
the parties an opportunity for supplemental briefing on the issue." (Flagship Theatres of
Palm Desert, LLC v. Century Theatres, Inc. (2011) 198 Cal.App.4th 1366, 1377, fn. 7,
citing Code Civ. Proc., § 437c, subd. (m)(2).) This statute would make little sense if an
appellant were required to address those grounds in its opening brief.
44
that would use one 55-gallon drum of 1,1,1-TCA per month. Degreasers are a common

source of VOC contamination.

VOC releases occurred at the site. Testing at the site revealed 1,1,1-TCA

contamination in soil and wastewater ground samples. 1,1-DCE was detected at the site

as well. 1,1,1-TCA can break down into 1,1-DCE.

Sanmina's expert had no knowledge as to whether Marotta, a prior owner of the

site, used 1,1,1-TCA in its operations. He did not believe that 1,1,1-TCA contamination

had migrated from upgradient sources. He "presume[d]" that Standard Logic, another

prior owner, used 1,1,1-TCA. But he did not know whether the 1,1,1-TCA found in soil

at the site came from Standard Logic or Sanmina.

District witnesses admitted they had no information regarding when VOC releases

occurred and no information whether Sanmina itself released VOC's into the soil.

Sanmina's expert agreed there was no evidence that Sanmina released 1,1,1-TCA or other

VOC's at the site.

Sanmina argues, here as in the trial court, that the District could not prove it was a

potentially responsible party under the fourth element of an HSAA and CERCLA claim.

Because Sanmina is a former owner and operator of the site, the fourth element is

satisfied if it "disposed of" hazardous materials there. (42 U.S.C. § 9607(a)(2).)

Evidence of a "release" is not required. (See Voggenthaler, supra, 724 F.3d at p. 1064.)

As noted, "disposal" includes the spilling, leaking, or placing any hazardous waste

"into or on any land or water so that such solid waste or hazardous waste or any

constituent thereof may enter the environment or be emitted into the air or discharged

45
into any waters, including ground waters." (42 U.S.C. §§ 6903(3), 9601(29).) The

hazardous substances need not actually reach the environment for an action to constitute

a disposal. (Voggenthaler, supra, 724 F.3d at p. 1064.) "[U]nder subsection (a)(2), any

owner or operator is liable if he was an owner or operator at the time when hazardous

waste was either placed on the site or leaked into the environment from a source on the

site, whether or not such owner or operator was the cause of the disposal or, indeed, even

had knowledge of it." (Crofton Ventures L.P. v. G&H Partnership (4th Cir. 2001) 258

F.3d 292, 297.)

Viewing the evidence in the light most favorable to the District, we conclude there

is a triable issue of fact regarding whether Sanmina (or someone at the site during

Sanmina's ownership or occupancy) disposed of hazardous substances at the site. The

evidence showed that Sanmina used a VOC solvent, 1,1,1-TCA, in its manufacturing

process and that the same solvent was found in the environment at the site. A trier of fact

could reasonably infer that Sanmina used substantial quantities of 1,1,1-TCA in at least

one degreaser at the site. Based on expert testimony that degreasers are common sources

of contamination, as well as the fact that 1,1,1-TCA contamination actually occurred at

the site, a trier of fact could reasonably conclude that Sanmina (or some other party)

disposed of 1,1,1-TCA during Sanmina's occupancy of the site. Based on the current

46
record, a triable issue of fact exists as to this element, and summary adjudication should

not have been granted. (See Aguilar, supra, 25 Cal.4th at p. 850.)13

In its order granting summary adjudication, the trial court focused on whether the

District raised a triable issue of material fact regarding a release of a hazardous substance

into soil or groundwater. Similarly, in its respondent's brief, Sanmina uses the terms

"disposal" and "release" interchangeably. Sanmina asserts, "[A]s the trial court correctly

noted, evidence of use does not equate to evidence of a release." (Italics added.) The

issue of whether Sanmina released a hazardous substance is irrelevant, for reasons we

have already discussed. The dispositive question here is whether there is a triable issue

of fact regarding whether Sanmina disposed of a hazardous substance. Sanmina does not

effectively address the reasonable inferences that flow from the evidence considered by

the trial court and how they might support the finding that hazardous substances were

disposed of during Sanmina's occupancy. As such, Sanmina's arguments are

unpersuasive. The court erred in granting summary adjudication in favor of Sanmina on

the District's HSAA claim.

6. Steelcase

Steelcase operated a furniture manufacturing facility at 1123 Warner Avenue in

Tustin, California from the early 1970's until 2003. In the trial court and in this appeal,

13 Given our conclusion, we need not address the parties' dispute over the relevance
and significance of a wastewater discharge permit allowing Sanmina to dispose of VOC
solvents into the Orange County sewer system. We also need not address the District's
argument that the trial court erred by excluding wastewater sampling data showing the
presence of VOC's in the discharged water.
47
Steelcase focuses on the following allegedly undisputed material facts: (1) the District

does not use water in the shallow aquifer; (2) drinking water wells are screened at depths

significantly below the shallow aquifer; (3) contaminants from the Steelcase site had not

reached or threatened to reach any drinking water well; and (4) contaminants from the

Steelcase site had not reached or threatened to reach a depth from which drinking water is

obtained.

Relying on these facts, Steelcase contends the District cannot establish causation

under the HSAA. Although the trial court denied Steelcase's motion for summary

adjudication on this ground, Steelcase reasserts its arguments on appeal as an alternate

ground on which to affirm the judgment in its favor. (See Code Civ. Proc., § 906.) We

are unpersuaded.14

We note initially that Steelcase has waived its arguments on appeal. " 'Appellate

briefs must provide argument and legal authority for the positions taken. "When an

appellant fails to raise a point, or asserts it but fails to support it with reasoned argument

and citations to authority, we treat the point as waived." ' [Citation.] 'We are not bound

to develop appellants' argument for them. [Citation.] The absence of cogent legal

argument or citation to authority allows this court to treat the contention as waived.' "

(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill); see

Schmidt, supra, 223 Cal.App.4th at p. 1509.) Steelcase's separate respondent's brief does

14 As we have noted, Steelcase later prevailed on this claim following a bench trial in
which the court found the District could not bring suit under the HSAA. Because we
have concluded the court's interpretation of the statute in this manner was erroneous (see
part II.B., ante), we will consider Steelcase's causation argument.
48
not cite the HSAA, its liability provisions, its elements, or any authority interpreting it.

Steelcase simply references "causation" generically, as if no further explanation were

needed. This treatment is inadequate.

Even if Steelcase had not waived its arguments, we would find them unpersuasive.

Under the HSAA, a plaintiff may recover "response or corrective action costs" in an

indemnity action against a liable person. (Health & Saf. Code, § 25363, subd. (d).) To

recover its costs from Steelcase, the District must establish a causal connection between a

release or threatened release at Steelcase's site and the District's recoverable costs.

(Alcoa, supra, 12 Cal.App.5th at p. 306 ; Carson Harbor, supra, 270 F.3d at p. 870.)

Steelcase argues that the District cannot establish causation because a release of

contamination from the Steelcase site has not reached or threatened to reach any drinking

water well or aquifer at a depth where drinking water is obtained. Steelcase's argument

fails because it does not establish, as a matter of fact or law, that the District's recoverable

costs are so limited. For example, the District could potentially pursue recoverable costs

related to groundwater in the shallow aquifer, which is an environmental resource worth

protecting. Given the gap in Steelcase's logic, its evidence does not "preclude a

reasonable trier of fact from finding" in the District's favor on the element of HSAA

causation. (Kahn, supra, 31 Cal.4th at p. 1003.) Even assuming Steelcase had not

waived its argument, it has not shown it was entitled to summary adjudication of the

District's HSAA claim on this record. (See San Jose Const., supra, 155 Cal.App.4th at p.

1534.)

49
 7. UCI

From 1981 through 1990, UCI manufactured printed circuit boards at a facility

located at 1800 Newport Circle in Santa Ana, California. UCI used 1,1,1-TCA as a

solvent for screen cleaning and tape residue removal. UCI obtained a permit to store

1,1,1-TCA in a 1,000-gallon aboveground tank. In 1988, UCI reported using

approximately 3,900 gallons of 1,1,1-TCA per year. UCI phased out its use of 1,1,1-

TCA in favor of other chemicals (including methyl ethyl ketone or MEK) from 1987 to

1990.

In 1979, prior to UCI's occupancy, a fire at the site caused a rupture in a 1,100-

gallon aboveground storage tank containing 1,1,1-TCA. This rupture caused a release of

1,1,1-TCA at the site.

Groundwater at the site is contaminated with 1,1-DCE and 1,4-dioxane. 1,1,1-

TCA breaks down into 1,1-DCE over time, and 1,4-dioxane was used to stabilize 1,1,1-

TCA. The presence of 1,1-DCE and 1,4-dioxane in groundwater indicates that 1,1,1-

TCA has been released at the site.

A UCI expert witness, Jeffrey Dagdigian, Ph.D, opined that the 1979 fire was "the

cause of release of VOCs located in the subsurface." Dagdigian observed that

groundwater testing in 1993 did not detect any 1,1,1-TCA, i.e., it had broken down

completely into 1,1-DCE and other constituents. Based on 1,1,1-TCA's half-life of 1.7

years, the release that caused groundwater contamination at the site could not have

occurred after 1979. Otherwise, 1,1,1-TCA would have remained detectable in

groundwater. Dagdigian estimated the mass of the historic 1,1,1-TCA release at 576

50
pounds or 73 gallons. He believed it was reasonable to conclude that the 1979 fire led to

the release of all 73 gallons of 1,1,1-TCA, after accounting for 1,1,1-TCA that dissipated

into the air or was captured by the site's sump and clarifier. Dagdigian also noted that

MEK had not been detected in groundwater. If UCI's procedures resulted in routine

releases of solvents, he would have expected MEK contamination in groundwater as well.

For their part, District witnesses could not identify any other VOC releases at the site

other than the 1979 fire.

In opposition to UCI's motion, the District submitted deposition testimony from a

former employee, Edward Stoll, that "some" drippage of 1,1,1-TCA solvent occurred

during the tape residue removal process. The drippage was rinsed "into the floor." A

UCI expert witness agreed that there is some minor spillage during printed circuit board

manufacturing. The boards from which tape was removed were rinsed with water. The

water carried a small amount of solvent to UCI's clarifier. From the clarifier, waste was

discharged into the public sewer. Another former employee, Jerry Paulk, testified that

the only pretreatment system in the clarifier was a pH adjustment. The District points to

a 1984 spill that occurred at the clarifier at the site, though the extent of the spill and the

chemicals involved is not part of the evidence. The District also provided evidence of

several violations of hazardous substance handling regulations issued to UCI, but none

referenced 1,1,1-TCA. Other evidence offered by the District, including an expert

declaration, was excluded by the trial court.

UCI argues that the court's order summarily adjudicating the District's HSAA

claim should be affirmed because the District cannot establish a causal nexus between

51
UCI's activities and groundwater contamination. But, as noted, the HSAA does not

require proof of a causal connection between UCI's activities and groundwater

contamination or the District's response costs. (Alcoa, supra, 12 Cal.App.5th at p. 306;

Kalamazoo River, supra, 228 F.3d at p. 655; Alcan Aluminum, supra, 964 F.2d at p. 265.)

The absence of such a connection therefore does not foreclose the District's HSAA claim

against UCI.15

UCI's contrary arguments are unpersuasive. We comprehensively examined the

requirement of causation under the HSAA in our recent Alcoa opinion. (Alcoa, supra, 12

Cal.App.5th at pp. 305-311.) We need not repeat that analysis here, but we will briefly

comment on certain authorities cited by UCI. In Boeing Co. v. Cascade Corp. (9th Cir.

2000) 207 F.3d 1177, 1185 (Boeing), the federal appellate court was confronted with a

situation it described as "causal overdetermination," i.e., where two defendants' actions

were each sufficient to bring about the harm. Boeing concluded that under CERCLA

both defendants in such a situation would be held to have caused the harm: "We

therefore conclude that in the special case of causal overdetermination, i.e., where either

polluter's conduct would have caused the same response cost to be incurred in the same

amount, and the conduct was of substantially equal blameworthiness, the proper

15 UCI claims the District may not advance this interpretation of the HSAA's
causation requirement in this appeal because it did not make this argument in the trial
court. But this appeal, and the District's arguments, raise pure questions of law and this
matter has yet to be tried. To the extent the District forfeited its arguments by not
advancing them in the trial court, we exercise our discretion to consider them. (See
Francies v. Kapla (2005) 127 Cal.App.4th 1381, 1386.)
52
construction of the causation requirement in the statute is that both polluters should be

treated as having caused the response cost." (Ibid.)

In discussing CERCLA generally, Boeing remarked, "CERCLA provides that a

party that releases a hazardous substance is liable for another's response costs, but only if

its release caused the other party to incur those response costs . . . ." (Boeing, supra, 207

F.3d at p. 1182.) UCI's reliance on this comment is misplaced. It was made in passing,

without analysis, and was immediately followed by a quotation from CERCLA's liability

provisions governing current owners and operators. (Ibid.) And, because Boeing

considered only the special situation of causal overdetermination, it had no occasion to

consider whether and under what circumstances former operators who had only disposed

of hazardous materials could be liable. By contrast, "virtually every court that has

considered this question has held that a CERCLA plaintiff need not establish a direct

causal connection between the defendant's hazardous substances and the release or the

plaintiff's incurrence of response costs." (Alcan Aluminum, supra, 964 F.2d at p. 265.)

Carson Harbor, likewise cited by UCI, also does not bear on this issue. It merely

held that the terms "disposal" and "release" are not mutually exclusive, given their

overlapping definitions. (Carson Harbor, supra, 270 F.3d at pp. 881-882.) The fact that

two terms are not mutually exclusive does not mean that no distinction can be made

between them. UCI also cites Kalamazoo River Study Group v. Rockwell Internat. Corp.

(6th Cir. 1999) 171 F.3d 1065, 1068, which stated that "the plaintiff must establish a

causal connection between the defendant's release of hazardous substances and the

plaintiff's response costs incurred in cleaning them up." (Italics added.) The federal

53
appellate court did not undertake any analysis of the issue, so it is unpersuasive. And, in

any event, the same court considered and expressly rejected the position advanced by

UCI the next year. (Kalamazoo River, supra, 228 F.3d at p. 655.)

Taking a different tack, UCI points to the requirement that a person must have

"operated" the facility at issue in order to be liable. (42 U.S.C. § 9607(a)(2).) UCI

claims that a former operator can only be liable if it had the authority to control the cause

of the contamination at the time of a hazardous substance release, not merely a disposal.

In UCI's view, this requirement indirectly forces a plaintiff to show that a former operator

was responsible for a release which caused response costs. We disagree. As noted, the

United States Supreme Court has defined the operator of a facility broadly, without

regard to responsibility for a release: "So, under CERCLA, an operator is simply

someone who directs the workings of, manages, or conducts the affairs of a facility. To

sharpen the definition for purposes of CERCLA's concern with environmental

contamination, an operator must manage, direct, or conduct operations specifically

related to pollution, that is, operations having to do with the leakage or disposal of

hazardous waste, or decisions about compliance with environmental regulations."

(Bestfoods, supra, 524 U.S. at pp. 66-67.) The definition is not limited to operators who

actually caused pollution. (See Litgo, supra, 725 F.3d at p. 382; K.C.1986 L.P. v. Reade

Manufacturing (8th Cir. 2007) 472 F.3d 1009, 1020.) UCI's reliance on apparently

contrary statements in Kaiser Aluminum & Chemical Corp. v. Catellus Development

Corp. (9th Cir. 1992) 976 F.2d 1338, 1341 is unpersuasive because that opinion was

decided before the United States Supreme Court's discussion of operator liability in

54
Bestfoods and because it appears to indirectly reimpose the traditional defendant-based

causation requirement that numerous authorities have rejected. (See, e.g., Kalamazoo

River, supra, 228 F.3d at p. 655; Alcan Aluminum, supra, 964 F.2d at p. 265; Alcoa,

supra, 12 Cal.App.5th at pp. 306-307.) UCI does not attempt to show its activities at the

site do not meet the Bestfoods definition of an operator. Its argument is therefore

unpersuasive.

UCI emphasizes the perceived injustice of holding it liable for contamination

released prior to its occupancy of the site. Such objections are matters of public policy

that must be addressed to the Legislature. We note, however, that the HSAA contains

several affirmative defenses and other limitations on liability (e.g., apportionment) that

may apply here. (Health & Saf. Code, §§ 25323.5, subd. (b), 25363, subd. (a); Alcoa,

supra, 12 Cal.App.5th at pp. 307, 310, fn. 28.) UCI has not raised these affirmative

defenses or limitations on liability, and we express no opinion on their applicability.

The question in this appeal is therefore whether UCI showed there was no triable

issue of fact regarding whether a person "disposed of" hazardous substances during UCI's

operation of the site. (42 U.S.C. § 9607(a)(2).) Our review of the allegedly undisputed

material facts identified in UCI's motion shows that these facts do not bear on the

question of a "disposal" under the HSAA. Instead, they focus on the possibility of a

"release" by UCI and whether UCI caused any groundwater contamination at the site.

But, as we have explained, neither CERCLA's causation requirement nor its definition of

"operator" require the District to show that UCI caused a release. It merely requires a

disposal. (See Voggenthaler, supra, 724 F.3d at p. 1064.) On appeal, UCI does not

55
argue that it did not dispose of hazardous substances. Because the facts offered by UCI,

if credited, would not "preclude a reasonable trier of fact from finding" that UCI is a

potentially responsible party under the HSAA, UCI was not entitled to summary

adjudication of this claim. (Kahn, supra, 31 Cal.4th at p. 1003; San Jose Const., supra,

155 Cal.App.4th at p. 1534.)16

D. Nonretroactivity: Marotta

The District contends the trial court erred by summarily adjudicating its HSAA

claim against Marotta on the ground that Marotta was not liable under the HSAA's

nonretroactivity provision. That provision states, "This chapter shall not be construed as

imposing any new liability associated with acts that occurred on or before January 1,

1982, if the acts were not in violation of existing state or federal laws at the time they

occurred." (Health & Saf. Code, § 25366, subd. (a).)

16 Even if UCI had met its initial burden, the District's evidence showing that 1,1,1-
TCA was retained in the clarifier and discharged into the public sewer (along with expert
testimony stating that minor spillage occurs during printed circuit board manufacturing)
would be sufficient to raise a triable issue of material fact regarding disposal under the
HSAA. This evidence does not implicate the Stoll and Paulk deposition transcripts,
which UCI contends are inadmissible hearsay. We therefore need not address UCI's
contention regarding admissibility. (Compare Williams v. Saga Enterprises, Inc. (1990)
225 Cal.App.3d 142, 149 [testimony admissible] with Byars v. SCME Mortgage Bankers,
Inc. (2003) 109 Cal.App.4th 1134, 1150 [testimony not admissible] and Gatton v. A.P.
Green Services, Inc. (1998) 64 Cal.App.4th 688, 692 [same].) A related issue is currently
pending in the Supreme Court. (See Sweetwater Union High School Dist. v. Gilbane
Building Co. (2016) 245 Cal.App.4th 19, review granted June 8, 2016, S233526 [Issues
presented: "(1) Is testimony given in a criminal case by persons who are not parties in a
subsequent civil action admissible in that action to oppose a special motion to strike? (2)
Is such testimony subject to the conditions in Evidence Code section 1290 et seq. for
receiving former testimony in evidence?"].)
56
 Marotta sold the site at issue in 1972. In its motion for summary adjudication,

Marotta relied on discovery responses from the District stating that the District was

"unaware of any Cleanup and Abatement Order or other charge or citation issued to

Marotta concerning the site." Marotta argued this evidence showed that the District

could not establish that Marotta's activities at the site violated then-existing state or

federal laws. In opposition, the District submitted evidence that Marotta used TCE and

PCE in its manufacturing processes, that TCE and PCE contamination has been detected

in soil and groundwater at the site, and the contamination occurred sometime before

1992.17

The parties agree that Health and Safety Code section 25366, subdivision (a)

establishes an affirmative defense to liability under the HSAA. Marotta would bear the

17 The District argues it submitted evidence that the degreasing equipment used by
Marotta was a typical source of contamination. In its brief, the District cites only its
separate statement of disputed material facts, rather than the underlying evidence itself.
This is improper. (Cal. Rules of Court, rule 8.204(a)(1)(C); Jackson, supra, 60
Cal.App.4th at p. 178, fn. 4.) The District also contends Marotta admitted certain facts,
citing Marotta's filing in connection with a different summary adjudication motion. Such
citation is improper and misleading. As far as we can discern, however, the District
appears to be relying on California Code of Regulations, title 22, section 64481, which
establishes disclosure requirements for drinking water consumer confidence reports. One
of the disclosure requirements concerns the likely sources of contaminants in drinking
water. (Cal. Code Regs., tit. 22, § 64481, subd. (d)(2)(I).) If contaminants are detected,
and the likely source is not otherwise known, the report should identify the "typical"
source identified in the regulations. (Ibid.) For TCE and PCE, the typical sources
identified are degreasing activities. (Id., § 64481, app. 64481-A.) While degreasing
activities may be typical sources when contamination occurs, we disagree with the
District's conclusion that this regulation implies that degreasing activities commonly lead
to contamination. We also disagree that evidence of contamination caused by other
parties' degreasers, without more, would support a reasonable inference that Marotta's
degreaser caused contamination as well.
57
burden of proof at trial on this defense. (See Ramirez v. Yosemite Water Co. (1999) 20

Cal.4th 785, 794-795; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454,

469.) In its motion for summary adjudication, Marotta had the initial burden of showing

that the undisputed facts support each element of the defense. (Dailey v. City of San

Diego (2013) 223 Cal.App.4th 237, 249.) It "must present evidence that would require a

reasonable trier of fact to find any underlying material fact more likely than not—

otherwise, [it] would not be entitled to judgment as a matter of law, but would have to

present his evidence to a trier of fact." (Aguilar, supra, 25 Cal.4th at p. 851.) If a

defendant fails to meet this initial burden, its motion should be denied regardless of the

plaintiff's evidentiary showing in opposition. (Id. at p. 850; see San Jose Const., supra,

155 Cal.App.4th at p. 1534; see also Teselle v. McLoughlin (2009) 173 Cal.App.4th 156,

169-170 (Teselle).)

Marotta and the District dispute the elements of the HSAA's nonretroactivity

defense. Marotta argues it satisfied its initial burden by showing that its ownership of the

property (and therefore any conduct that would violate the HSAA) ceased prior to 1982.

The District argues Marotta was also required to show that its conduct did not violate any

then-existing state and federal laws. We agree with the District.

The HSAA's nonretroactivity provision states that a defendant will not be liable

under the HSAA if (1) the alleged wrongful acts occurred before on or before January 1,

1982 and (2) the alleged wrongful acts did not violate any existing state or federal laws at

the time they occurred. (Health & Saf. Code, § 25366, subd. (a).) Unless both conditions

are satisfied, the defense cannot overcome a prima facie showing of HSAA liability.

58
Given the text of the statute, and the broadly remedial nature of the HSAA, it is

appropriate to place the burden on the otherwise-liable defendant to prove compliance

with then-existing environmental laws, e.g., through compliance records or the testimony

of knowledgeable individuals. Marotta is required to establish both elements to prevail

on this affirmative defense.

We conclude Marotta did not meet its initial burden on summary judgment to

establish that its alleged wrongful acts did not violate any existing state or federal laws.

As noted, Marotta's evidence on this element consisted solely of District admissions in

discovery that it had no evidence of any charges or citations for violations of

environmental laws. But a defendant's motion for summary adjudication based on an

affirmative defense may not be based on plaintiff's lack of evidence disproving the

applicability of the defense. (Consumer Cause, Inc. v. SmileCare, supra, 91 Cal.App.4th

at p. 473.) Instead, the defendant must offer evidence that, if credited, would require a

reasonable trier of fact to find in its favor on each element of the defense. (Aguilar,

supra, 25 Cal.4th at p. 851; Dailey v. City of San Diego, supra, 223 Cal.App.4th at p.

249.) Marotta did not offer such evidence. Its motion for summary adjudication should

have been denied.

III. OCWD Act

A. Recoverable Costs

The District contends the trial court erred by summarily adjudicating its cause of

action under section 8 of the OCWD Act in favor of defendants. That section empowers

the District to "conduct any investigations of the quality of the surface and groundwaters

59
within the district . . . to determine whether those waters are contaminated or polluted"

(OCWD Act, § 8, subd. (a)), to "perform any cleanup, abatement, or remedial

work . . . needed to prevent, abate, or contain any threatened or existing contamination of,

or pollution to, the surface or groundwaters of the district" (id., subd. (b)), and to seek

recovery of its reasonable costs from "the person causing or threatening to cause that

contamination or pollution" in a civil action (id., subd. (c)).

The OCWD Act, section 8, subdivision (c) therefore creates a private right of

action for cost recovery specific to the District: "If, pursuant to subdivision (b), the

contamination or pollution is cleaned up or contained, the effects thereof abated, or in the

case of threatened contamination or pollution, other necessary remedial action is taken,

the person causing or threatening to cause that contamination or pollution shall be liable

to the district to the extent of the reasonable costs actually incurred in cleaning up or

containing the contamination or pollution, abating the effects of the contamination or

pollution, or taking other remedial action. The amount of those costs, together with court

costs and reasonable attorneys' fees, shall be recoverable in a civil action by, and paid to,

the district." (Ibid.)

Defendants argue, here as in the trial court, that summary adjudication is proper

because the District has not incurred any recoverable costs under the OCWD Act, section

8, subdivision (c). Defendants characterize the District's incurred costs as wholly

"investigatory" and contend that investigatory costs are not encompassed within

recoverable remediation costs. Defendants point to the express inclusion of the term

"investigations" in section 8, subdivision (a), and the absence of that term in section 8,

60
subdivisions (b) and (c), which authorize and provide for cost recovery of cleanup,

abatement, and remedial work.

We addressed and rejected this unwarranted distinction in our recent Alcoa

opinion: "On de novo review, we conclude the trial court incorrectly restricted the scope

of recoverable costs under the OCWD Act. The issue is not whether the claimed costs

fall under the District's power under section 8, subdivision (a) and are therefore excluded.

It is whether the claimed costs fall under section 8, subdivisions (b) and (c) and are

therefore included. A given action, for example, might fall under both grants of power."

(Alcoa, supra, 12 Cal.App.5th at p. 346.) We concluded it was error to view the

subdivisions as mutually exclusive. (Ibid.) We have considered defendants' arguments

to the contrary but for the reasons more fully explained in Alcoa will adhere to our

interpretation of the OCWD Act in that appeal.

The "reasonable costs actually incurred in cleaning up or containing the

contamination or pollution, abating the effects of the contamination or pollution, or

taking other remedial action" are recoverable under the OCWD Act, without regard to

whether they could also be characterized as investigatory. (OCWD Act, § 8, subd. (c).)

"[A] remedial action involves much more than simply the physical cleanup or

containment process itself. It involves investigation, planning, design, development, and

documentation. Because these activities are part of remedial action, the costs of such

activities are recoverable." (Alcoa, supra, 12 Cal.App.5th at p. 346.) However, not every

activity that touches on environmental concerns can be characterized as remedial. As we

explained, "if a plaintiff conducts testing as part of its 'regular course of business,' and not

61
in response to contamination or threatened contamination, that could indicate that such

testing is not remedial action. [Citation.] Similarly, if a plaintiff drafts reports that have

'nothing to do with remedying threatened contamination,' that could indicate that the

reports are not part of a remedial action." (Id. at p. 348.)

In their motion for summary adjudication, defendants showed that the District had

not designed or constructed any remediation project in the South Basin; had not done any

cleanup work or treated any groundwater contamination there; and planned to continue

investigating the source and extent of groundwater contamination in the South Basin in

order to develop a remediation plan. In opposition, the District did not directly contest

these points. Instead, it offered, among other things, a declaration from its chief

hydrogeologist explaining that the District's efforts were part of the remediation process

and that those efforts were necessary if the District wanted to clean up contamination in

the South Basin effectively. The hydrogeologist noted that some "investigatory"

elements, such as groundwater monitoring wells installed by the District, would continue

to be used as part of any cleanup and treatment effort. Other claimed costs included

design and feasibility studies of various treatment options themselves.

On this record, defendants have not shown that all of the District's claimed

remediation costs are not recoverable as a matter of law. As we have explained, the fact

that the District's costs can be characterized as "investigatory" is not dispositive, which

was the primary argument advanced in the trial court and on appeal. And, because the

District's activities were undertaken in response to actual and threatened contamination

and pollution and at least some could reasonably be understood as necessary for any

62
future treatment project, a triable issue of fact exists regarding whether the District's costs

are remedial in nature and therefore recoverable. The court therefore erred by granting

defendants' motion for summary adjudication of the District's cause of action under the

OCWD Act. Except as to UCI, which we discuss in the next part, we express no opinion

regarding whether summary adjudication would be proper on a different record or on

different grounds or whether the District should ultimately prevail on this (or any other)

element of this cause of action were it to be tried.18

B. Causation: UCI

The OCWD Act allows the District to recover its reasonable costs from a person

who caused or threatened to cause the contamination or pollution at issue. (OCWD Act,

§ 8, subd. (c).) Unlike the HSAA, the OCWD Act largely incorporates the causal nexus

between a defendant's conduct and the resulting harm: "[T]he OCWD Act requires proof

18 At oral argument, defendants appeared to offer an additional reason why summary
adjudication of the District's claim under the OCWD Act was proper. They argued that
the District had not shown that "contamination or pollution [was] cleaned up or
contained, the effects thereof abated, or in the case of threatened contamination or
pollution, other necessary remedial action [was] taken," as required for cost recovery
under the OCWD Act. (OCWD Act, § 8, subd. (c).) They attempted to distinguish our
discussion of this element in Alcoa by pointing out that, unlike in Alcoa, the District had
not offered any evidence that the hazardous substances in the South Basin had naturally
attenuated, or "abated," such that this element was not satisfied. (See Alcoa, supra, 12
Cal.App.5th at pp. 349-350.) Defendants did not develop this argument in their briefing.
They discussed the results of the District's actions only to support their argument that
those actions were merely investigatory. Defendants' argument is therefore waived. (Ace
American, supra, 121 Cal.App.4th at p. 1027, fn. 2.) And, even setting aside this waiver,
we agree with the District that the defendants have not shown, based on the undisputed
facts, that there is no "threatened contamination or pollution" that would support cost
recovery for "other necessary remedial action" undertaken by the District, even in the
absence of evidence that the effects of existing contamination or pollution have been
abated. (See OCWD Act, § 8, subd. (c); Alcoa, supra, 12 Cal.App.5th at pp. 350-351.)
63
that a defendant itself caused or threatened to cause contamination or pollution for which

the District has incurred remediation costs." (Alcoa, supra, 12 Cal.App.5th at p. 342.)

UCI moved for summary adjudication of the District's claim under the OCWD

Act, among others, because the District could not establish causation. The trial court

agreed and granted summary adjudication of the District's OCWD Act claim on this

basis. On appeal, UCI argues this order provides an alternative basis on which to affirm

the judgment in its favor on this claim. The District contends the court's order was

erroneous. For reasons we will explain, we agree with UCI.

We have already summarized the evidence surrounding the UCI site in part II.C.7.,

ante. Based on our review of that evidence, we conclude UCI met its burden on

summary adjudication. UCI's evidence, if credited, would preclude a trier of fact from

concluding that UCI caused groundwater contamination. Dagdigian, UCI's expert,

opined that the 1979 fire was the cause of VOC contamination at the UCI site. Because

the District does not contend UCI was responsible for the 1979 fire, it cannot show UCI

caused the VOC contamination at issue in this litigation. The District criticizes

Dagdigian's expert opinion by pointing out his admission that 1,1,1-TCA's half-life could

be as low as 1.1 years or as high as 2.5 years. But the fact that other possibilities exist

does not call into question Dagdigian's conclusion that 1.7 years was the appropriate half-

life to use in his analysis of the UCI site. Absent some other evidence, it is speculation to

believe that using another half-life figure would have been reasonable under the

circumstances here.

64
 We further conclude the District has not established a triable issue of fact whether

UCI caused groundwater contamination based on its evidence of UCI's manufacturing

processes. At most, the District has shown that UCI spilled some amount of 1,1,1-TCA

on the floor of its facility and discharged it into the sewer. The District submitted no

evidence, expert or otherwise, that would allow a trier of fact to infer based on this

evidence that UCI's actions caused or threatened to cause groundwater contamination.

The District argues that a reasonable inference of contamination by UCI can be based on

the (allegedly similar) circumstances of the 1979 fire, but any inferences based on that

fire would be speculative given the state of the evidence. While the 1979 fire

indisputably caused groundwater contamination, the same cannot be said of UCI's minor

spills based on the evidence the District presented. The District has not shown the trial

court erred by summarily adjudicating its claim under the OCWD Act based on

causation.19

IV. Negligence

A. Overview of Disputed Issues

Defendants challenged the District's negligence claim on the ground it was barred

by the applicable statute of limitations. Below, we will first address the legal issues

raised by defendant's challenge. For reasons we will explain, we conclude the theory of

"continuous accrual" applies to the District's negligence claim and provides the

framework for assessing defendants' arguments based on the statute of limitations. We

19 Given our conclusion, we again need not decide whether the deposition transcripts
of former employees Stoll and Paulk were admissible. (See fn. 16, ante.)
65
next address defendants' factual showing to determine whether they are entitled to

summary adjudication on this ground, including the additional arguments made in GE

Aviation's separate respondent's brief. We conclude that, except for GE Aviation,

defendants have not shown they are entitled to summary adjudication of the District's

negligence claim on statute of limitations grounds on the current record.

As with the District's claim under the OCWD Act, UCI moved separately for

summary adjudication of the District's negligence claim on the ground the District could

not show causation. We conclude, for the same reasons as under the OCWD Act, that

UCI is entitled to summary adjudication of the District's negligence claim on this ground

as well.

B. Statute of Limitations

1. The Defendants Jointly

The District contends the trial court erred by summarily adjudicating its

negligence claim against all defendants based on the statute of limitations. In a series of

motions, defendants offered evidence that the District knew or should have known about

contamination at each of their sites more than three years before the District filed its

complaint. Defendants argued that the District's actual or constructive knowledge of such

contamination triggered the statute of limitations, which they claim expired before the

District filed suit. In the trial court, the District primarily argued that its knowledge was

insufficient to trigger the statute of limitations. On appeal, the District has abandoned

this argument. Instead, the District relies on the theory of "continuous accrual" to defend

its negligence claim. It contends summary adjudication was erroneous because its

66
complaint alleged a series of negligent acts and, regardless of the District's first

knowledge of contamination, the defendants have not met their burden of showing that

their last negligent act occurred outside the statute of limitations. (See Aryeh v. Canon

Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192 (Aryeh).) For reasons we will

explain, we agree with the District.

Defendants claim, as an initial matter, that the District has forfeited its appellate

arguments by failing to raise them below. Defendants rely on NBCUniversal Media, LLC

v. Superior Court (2014) 225 Cal.App.4th 1222 (NBCUniversal). In that case, the real

parties in interest in a writ proceeding sought to raise arguments in opposition to

summary judgment that they had not raised in the trial court. (Id. at p. 1236.) The new

argument in NBCUniversal mirrors the new argument here, that the theory of continuous

accrual precluded a defense based on the statute of limitations. (Ibid.) The appellate

court concluded that the real parties had forfeited their continuous accrual argument by

not making it below. (Id. at p. 1237.) The court supported its conclusion by observing

that "resolution of the argument requires application of equitable principles to a factual

record that [real parties] have failed to develop." (Ibid.) The court therefore declined to

exercise its discretion to consider the new continuous accrual argument. (Ibid.)

We do not find NBCUniversal persuasive under the circumstances here. Even

assuming the District forfeited its argument by not making it below (a claim the District

disputes), the District's argument presents a purely legal question (the sufficiency of

defendants' initial evidentiary showing) that does not depend on factual development in

the trial court. As in NBCUniversal, defendants claim the District's argument requires

67
application of equitable principles. But defendants do not identify any such alleged

equitable principles, they do not discuss any equitable principles in their discussion of the

merits of the District's continuous accrual argument, and they do not identify any factual

development in the trial court that they would have pursued had the District made its

argument below. The defendants have not identified any prejudice from considering the

District's continuous accrual argument, and they do not assert that the District's failure to

make the argument in the trial court was for purposes of delay or the result of some other

improper motive. Under these circumstances, even assuming the forfeiture rule

otherwise applies, we will exercise our discretion and consider the District's argument on

its merits. (See Francies v. Kapla, supra, 127 Cal.App.4th at p. 1386.)

In Aryeh, the Supreme Court explained the legal theory of continuous accrual:

"Generally speaking, continuous accrual applies whenever there is a continuing or

recurring obligation: 'When an obligation or liability arises on a recurring basis, a cause

of action accrues each time a wrongful act occurs, triggering a new limitations period.'

[Citation.] Because each new breach of such an obligation provides all the elements of a

claim—wrongdoing, harm, and causation [citation]—each may be treated as an

independently actionable wrong with its own time limit for recovery." (Aryeh, supra, 55

Cal.4th at p. 1199.) A plaintiff may pursue actionable wrongs for which the statute of

limitations has not yet expired, even if earlier wrongs would be barred. (Id. at pp. 1199-

1200.) "[U]nder the theory of continuous accrual, a series of wrongs or injuries may be

viewed as each triggering its own limitations period, such that a suit for relief may be

partially time-barred as to older events but timely as to those within the applicable

68
limitations period." (Id. at p. 1192.) A plaintiff may allege a single cause of action

covering the entire series of actionable wrongs: "[N]othing in the theory of continuous

accrual requires every severable act to be pleaded as a distinct cause of action[.]" (Id. at

p. 1201, fn. 8.)

In its operative complaint, the District alleged that "[d]efendants had a duty to use

due care in the handling, control, disposal, release, remediation, and use of hazardous

substances at their respective sites." Defendants breached these duties because they

"negligently, carelessly, and recklessly failed to: (1) prevent spills, leaks, discharges and

releases of VOC's and perchlorate through the use of appropriate technology; (2) install

and maintain systems to prevent spills, leaks, discharges and releases, and facilitate

prompt detection and containment of any spills, leaks, discharges and releases; (3)

monitor and discover spills, leaks, discharges and releases as soon as possible; (4) warn

those who maybe injured as a result of spills, leaks, discharges and releases; and (5) clean

up, contain and abate spills, leaks, discharges and releases to prevent harm and injury to

plaintiff and others." In addition, "[d]efendants undertook to retain consultants to

conduct environmental investigations and cleanups, thereby affirmatively undertaking the

duty to detect and remediate spills, leaks, discharges and releases of VOC's and

perchlorate. Defendants, however, negligently failed to properly discharge these duties."

The District's allegations in support of its negligence causation of action identify a

series of activities, spanning the initial handling and use of hazardous substances to their

disposal, release, and remediation. Although couched in past tense, the complaint alleges

69
a series of negligent acts.20 Under the doctrine of continuous accrual, if any of these

negligent acts occurred within the statute of limitations, the cause of action is not barred.

(Aryeh, supra, 55 Cal.4th at pp. 1199-1200.)

Defendants point out that Aryeh involved a claim under the Unfair Competition

Law (Bus. & Prof. Code, § 17200 et seq.). (Aryeh, supra, 55 Cal.4th at p. 1189.) They

argue that the theory of continuous accrual does not apply to negligence claims, but they

do not provide any reasoning supporting their argument. We see no reason why the

theory of continuous accrual should not apply to negligence claims. (See Nestle v. City of

Santa Monica (1972) 6 Cal.3d 920, 940 ["Such a rule has a long history in nuisance

actions [citation] and by analogy may apply to certain factual situations causing personal

injury as well as property damage for negligence and zoning violations."].) We will

therefore apply it here.

Defendants bore the burden on summary judgment to show a "complete defense"

to the District's negligence claim based on the statute of limitations. (Code Civ. Proc.,

§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) Because the District's

complaint pled its negligence claim as a series of separate and distinct negligent acts

under the theory of continuous accrual, defendants were required to show that the

20 The parties make much of the tense of the complaint's allegations. The District
emphasizes allegations made in the present or present progressive tense
("[d]efendants . . . [are] causing and threatening to cause contamination and pollution"),
and defendants emphasize past tense allegations. We need not definitely resolve the
scope of the District's allegations in the appeal. Even focusing exclusively on the past
tense allegations, they allege a series of negligent acts (albeit in the past). We disagree
with defendants' contention that these past tense allegations describe a single negligent
act for each defendant.
70
District's claim, including each relevant negligent act, was completely time-barred. " 'If a

plaintiff pleads several theories, the defendant has the burden of demonstrating there are

no material facts requiring trial on any of them. "The moving defendant whose

declarations omit facts as to any such theory . . . permits that portion of the complaint to

be unchallenged." ' " (Teselle, supra, 173 Cal.App.4th at p. 163.) This principle applies

equally to facts pled in a complaint that would refute an affirmative defense or prove an

exception to such a defense. (See, e.g., Anderson v. Fitness Internat., LLC (2016) 4

Cal.App.5th 867, 880; Varshock v. Department of Forestry & Fire Protection (2011) 194

Cal.App.4th 635, 651; Bacon v. Southern California Edison Co. (1997) 53 Cal.App.4th

854, 858.)

Defendants did not meet their initial burden of production. Defendants did not

present evidence, for example, that a negligence claim based on improper remediation

would be time-barred. Because a negligence claim based on such a theory remains viable

notwithstanding defendants' evidence, their motions for summary adjudication of the

District's negligence claims based on the statute of limitations should have been denied.

(Aguilar, supra, 25 Cal.4th at p. 850; Teselle, supra, 173 Cal.App.4th at pp. 169-170.)

Defendants argue that the District has alleged "a single harm occurring solely in

the past," i.e., "contamination of groundwater." But such contamination need not be a

single, indivisible harm. Separate negligent acts could reasonably lead to more or

different contamination, contamination with different effects, or contamination requiring

different remediation efforts. For example, a defendant's negligent release of hazardous

substances could cause some groundwater contamination. A defendant's later negligent

71
remediation effort could cause additional groundwater contamination, in different areas,

with different effects. Even though both negligent acts caused groundwater

contamination, the contamination is not a single harm.21

Defendants also argue that the District's allegations against certain specific

defendants should override more general allegations against all defendants collectively.

It is well-settled that "specific allegations control general pleadings," but this rule applies

only where there is a factual inconsistency between the allegations. (Gentry v. eBay, Inc.

(2002) 99 Cal.App.4th 816, 827.) The past-tense allegations against specific defendants

and the past-tense allegations against all defendants supporting the District's negligence

claim are not inconsistent. There is no basis to disregard the latter allegations. The

District's general allegations provided the applicable framework the defendants must

follow in order to obtain summary adjudication.

In a footnote, defendants claim in passing that they provided evidence showing

that certain defendants (Emerson, Soco West, Brenntag, and UNISYS) "ceased any

operations that could have [led] to any alleged releases long before" that statute of

limitations period. Although the evidence cited by defendants shows that certain

activities ceased outside the limitations period, defendants do not establish that the

21 We further disagree with defendants that the District's negligence claim is based
solely on the idea "the persistence of contaminants in groundwater indefinitely tolls the
statute of limitations." The District's claim is instead based on the idea that defendants
are responsible for negligent acts within the statute of limitations. Defendants' reliance
on CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525 is unpersuasive.
In that case, the evidence showed that the harm from contamination was "complete[]" and
"constant" outside the statute of limitations period. (Id. at p. 1535.) Defendants here
make no such showing.
72
District's claim is based solely on those activities. Nor do defendants cite evidence that

they did not engage in other activities alleged by the District in support of its negligence

claim during the statute of limitations period. Emerson cites a 1999 site closure letter in

which the RWQCB states, "On the condition that the information provided to us was

accurate and representative of existing groundwater conditions at the site, no further

investigation or remediation of groundwater is required." This letter does not address any

later activities at the site. Emerson does not cite any evidence (e.g., a declaration from a

responsible employee) that it has not undertaken any activities that could have caused

groundwater contamination within the statute of limitations period. The discrete pieces

of evidence cited by the other defendants at issue suffer from the same deficiencies. The

1991 letter cited by Soco West and Brenntag states that the site at issue "ceased

processing hazardous waste" and "all containment areas have been decontaminated." But

the letter does not address other negligent acts alleged by the District. Indeed, the letter

mentions that hazardous waste remains at the site and soil and groundwater investigations

are ongoing. UNISYS relies on deposition testimony showing that it sold the company

that operated the site at issue in 1986. Again, this evidence does not address the various

negligent acts alleged by the District other than direct operation of the site.

Given the breadth of the District's complaint, it was incumbent upon defendants in

their motions for summary adjudication to address each allegation that could reasonably

form the basis of the District's negligence cause of action, including defendants' potential

negligent remediation activities. Having failed to do so, defendants did not meet their

initial burden to show the District's negligence claim had no merit. On a different factual

73
record, including discovery clarifying the scope of the District's allegations, summary

adjudication might have been warranted. But on the current record the court's order

granting summary adjudication must be reversed. Our discussion of this issue does not

preclude defendants from raising the issue of statute of limitations again, of course, in an

appropriate manner and with additional facts regarding, for example, defendants' lack of

involvement in remediation and other activities forming the basis of the District's

negligence claim.

2. GE Aviation

In its separate respondent's brief, GE Aviation offers a variation of the foregoing

factual argument. It points to the following material fact contained in its motion, which it

contends is undisputed: "There is no record evidence of any chlorinated solvent

contamination, as defined by the solvents placed at issue by the District, to soil or

groundwater at the 2040 Site as a result of any operations at the 2040 Site conducted

from September 1, 1997 to the present." This fact sweeps more broadly than the

evidence cited by Emerson, Soco West, Brenntag, and UNISYS cited above. The fact, if

true, would cover any operations at the site in question throughout the statute of

limitations period. And, because the District's negligence allegations are limited to each

defendant's activities at its respective site, it would cover all of the District's negligence

allegations. We therefore conclude that the fact, if true, would establish a complete

defense to the District's negligence allegation based on the statute of limitations.

In this appeal, the District addresses GE Aviation's evidentiary showing in a single

sentence: "In addition, the District submitted evidence showing that . . . GE Aviation

74
continued releasing contaminants through 2011." This sentence is supported by a citation

solely to the District's separate statement in opposition to GE Aviation's allegedly

undisputed fact. As we have noted, such a citation is improper and insufficient. (Cal.

Rules of Court, rule 8.204(a)(1)(C); Jackson, supra, 60 Cal.App.4th at p. 178, fn. 4.)

Despite GE Aviation's separate respondent's brief addressing this claim, the District

offers no response in its reply brief.

As the appellant, the District bears the burden of showing error in the judgment.

(Reyes v. Kosha, supra, 65 Cal.App.4th at p. 466, fn. 6.) Here, the District's general

assertions do not apply to GE Aviation, and the District makes no attempt to engage in

the facts surrounding GE Aviation's site. Its only acknowledgement that GE Aviation's

factual showing merits attention is accompanied by a citation that violates the Rules of

Court. The District has not made a serious effort to advance its argument on appeal.22

Because the District has failed to support its assertion with reasoning or authority, we

conclude the District has forfeited its claim of error as to GE Aviation. (Schmidt, supra,

223 Cal.App.4th at p. 1509; Cahill, supra, 194 Cal.App.4th at p. 956.) We will therefore

affirm the judgment in favor of GE Aviation as to the District's negligence claim.

C. Causation: UCI

UCI separately moved for summary adjudication of the District's negligence

claim, among others, on the ground that the District could not establish causation. The

22 Although the District addresses the facts surrounding the GE Aviation site in the
context of its HSAA claim, that claim was the subject of a different summary
adjudication motion and involves different legal standards. It does not apply to the
District's negligence claim, and the District does not attempt to incorporate it here.
75
trial court granted UCI's motion and expressly relied on this ground in summarily

adjudicating the District's negligence claim in favor of UCI. The District contends the

court's order was erroneous, whereas UCI relies on this ground as an alternative basis on

which to affirm the judgment in its favor on the District's negligence claim. We agree

with UCI.

We have already discussed the evidence surrounding the UCI site, including

causation, in connection with the District's claims under the HSAA and the OCWD Act.

(See parts II.C.7. and III.B., ante.) With respect to the OCWD Act, we concluded UCI

met its burden on summary adjudication to show no triable issue of fact on the issue of

whether UCI caused groundwater contamination and the District did not raised any

triable issues in opposition. The legal standards of causation under the OCWD Act and

the common law claim of negligence are identical in the context of the parties'

contentions in this appeal. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239-1240;

Alcoa, supra, 12 Cal.App.5th at pp. 342.) That discussion therefore applies equally here.

The District does not offer any additional arguments in opposition. We will therefore

affirm the trial court's judgment in favor of UCI and against the District on its negligence

claim.

V. Trespass and Nuisance

A. The Causes of Action

The District alleged causes of action for common law trespass and nuisance

against all defendants. The trial court granted defendants' motions for summary

adjudication of these causes of action. As discussed above, the court primarily found that

76
the District did not have sufficient property or other interests in the South Basin to

support claims for trespass or nuisance. For reasons we will explain, we conclude the

District has raised a triable issue of fact regarding its property interests in groundwater in

the South Basin, but those interests are insufficient to sustain a trespass cause of action

under the circumstances here. The District's potential property interests are sufficient,

however, to sustain its nuisance cause of action.

Because both causes of action require some form of property interest (at least in

part), we will consider them together in this section. We begin with an overview of each

cause of action and will then discuss the District's potential property interests in

groundwater in the South Basin.

"Trespass is an unlawful interference with possession of property." (Staples v.

Hoefke (1987) 189 Cal.App.3d 1397, 1406; see Wilson v. Interlake Steel Co. (1982) 32

Cal.3d 229, 233 (Wilson).) "California has adhered firmly to the view that '[t]he cause of

action for trespass is designed to protect possessory—not necessarily ownership—

interests in land from unlawful interference. [Citations.]' " (Capogeannis v. Superior

Court (1993) 12 Cal.App.4th 668, 674; see Williams v. Goodwin (1974) 41 Cal.App.3d

496, 507-508 (Williams).) "[I]t is not necessary that the plaintiff own the property. All

plaintiff needed to do was to show a possessory right superior to the right of the

trespassers." (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246 (Posey).)23

23 The District contends that "trespass on the case" is a viable tort in California that
does not require a property interest. Although the District did not raise this argument in
the trial court, it contends the judgment on its trespass claim should be reversed because
77
 Nuisances are defined by statute: "Anything which is injurious to health . . . or is

indecent or offensive to the senses, or an obstruction to the free use of property, so as to

interfere with the comfortable enjoyment of life or property . . . is a nuisance." (Civ.

Code, § 3479.) Nuisances can be either public or private. "A public nuisance is one

which affects at the same time an entire community or neighborhood, or any considerable

number of persons, although the extent of the annoyance or damage inflicted upon

individuals may be unequal." (Id., § 3480.) Any other nuisance is a private nuisance.

(Id., § 3481.)

it can prevail under the standards applicable to a cause of action for trespass on the case.
Even assuming the District's complaint can be read to plead a cause of action for trespass
on the case, and even exercising our discretion to consider the District's new argument for
the first time on appeal, we disagree. To the extent trespass on the case remains a viable
tort in California, it does not apply to the circumstances here. Historically, trespass on
the case was a common law form of action that encompassed a wide variety of causes of
action that we now consider separate. Chief among them was negligence. (See Rest.3d
Torts, § 6, com. c, p. 61.) For example, an early Supreme Court opinion on negligence
relies on a treatise discussing trespass on the case for the applicable standards. (Gerke v.
California Steam Navigation Co. (1858) 9 Cal. 251, 256, citing 1 Cowen & Barbour, A
Treatise on the Civil Jurisdiction of Justices of the Peace in the State of New York (3d ed.
1844) p. 384.) California no longer adheres to the common law forms of action. (Code
Civ. Proc., § 307; see Rogers v. Duhart (1893) 97 Cal. 500, 504.) And, to the extent
trespass on the case survived as a counterpart to the modern cause of action for trespass
(one that would allow recovery of additional damages), that distinction has been
abolished. All such actions are now known as trespass. (Elton v. Anheuser-Busch
Beverage Group, Inc. (1996) 50 Cal.App.4th 1301, 1305.) The District relies on a single
modern case, Lucky Auto Supply v. Turner (1966) 244 Cal.App.2d 872 (Lucky Auto), to
support its argument. In that case, the court held that a plaintiff with a nonexclusive
license to a parking lot could bring a cause of action under the theory of trespass on the
case for " ' "any invasion or disturbance of the terms of the license whether by the
licensor or by third parties." ' " (Id. at p. 881.) To the extent Lucky Auto is correct that a
license is sufficient to support a separate cause of action for trespass on the case, the
District does not allege that it has a license or any analogous interest here. We disagree
with the District that Lucky Auto stands for the broad proposition that any perceived
wrong may be remedied in an action for trespass on the case. The District has numerous
other remedies, including under the OCWD Act. (See part III., ante.)
78
 A private plaintiff may bring a cause of action for public nuisance if the nuisance

is "specially injurious" to the plaintiff. (Civ. Code, § 3493.) Although a plaintiff's

property interests may be relevant to the issue of special injury, property interests are not

required to bring a cause of action for public nuisance. (See, e.g., In re Firearm Cases

(2005) 126 Cal.App.4th 959, 987, fn. 21.) By contrast, a plaintiff bringing a cause of

action for private nuisance must show harm to a property interest. (Institoris v. City of

Los Angeles (1989) 210 Cal.App.3d 10, 20 (Institoris).) The property interest need not

rise to the level of fee simple ownership. (See, e.g., Moylan v. Dykes (1986) 181

Cal.App.3d 561, 574 [interference with the use of an easement]; Stoiber v. Honeychuck

(1980) 101 Cal.App.3d 903, 920 [interference with use of a leasehold].)24

B. The District's Property Interests

Because each cause of action involves some type of property interest, either as a

necessary or potentially sufficient element, we will examine the nature of the District's

alleged property interests relevant to this appeal. We do not by this discussion imply that

24 Although the District is a public agency, the parties agree that a public agency
may bring a nuisance cause of action on its own behalf to the same extent as a private
plaintiff, and under theories of both private and public nuisance, where the public
agency's own property rights are affected by the nuisance. The statutory basis for such an
action is found in the first sentence of Code of Civil Procedure section 731: "An action
may be brought by any person whose property is injuriously affected, or whose personal
enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code, and by
the judgment in that action the nuisance may be enjoined or abated as well as damages
recovered therefor." (See County of Santa Clara v. Atlantic Richfield Co. (2006) 137
Cal.App.4th 292, 313; Orange County Water Dist. v. The Arnold Engineering Co. (2011)
196 Cal.App.4th 1110, 1125, fn. 4.)
79
the property interests implicated by each cause of action are identical. As we will explain

in the next part, they are not.

The District has alleged that it has property interests in groundwater in the South

Basin. It acknowledges that it does not have property interests in the overlying land. It

instead alleges property interests in or related to the groundwater itself. As we will

discuss in greater detail below, water in its natural state cannot be owned by any private

person. (State of California v. Superior Court (2000) 78 Cal.App.4th 1019, 1025 (State

of California).) Property interests in water instead take the form of a usufruct, i.e., a right

to use. " 'It is laid down by our law writers, that the right of property in water is

usufructuary, and consists not so much in the fluid itself as the advantage of its use.'

[Citation.] Hence, the cases do not speak of the ownership of water, but only of the right

to its use." (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 441

(Audubon Society).)

"Courts typically classify water rights in an underground basin as overlying,

appropriative, or prescriptive. [Citation.] An overlying right, 'analogous to that of the

riparian owner in a surface stream, is the owner's right to take water from the ground

underneath for use on his land within the basin or watershed; it is based on the ownership

of the land and is appurtenant thereto.' " (City of Barstow v. Mojave Water Agency

(2000) 23 Cal.4th 1224, 1240, fn. omitted (City of Barstow).) Appropriative and

prescriptive rights are derived from actual appropriation or use of water. (City of Santa

Maria v. Adam (2012) 211 Cal.App.4th 266, 278-279 (City of Santa Maria).)

Appropriative rights stem from lawful use; prescriptive rights from unlawful use. (Ibid.;

80
City of Barstow, at p. 1241; see generally Audubon Society, supra, 33 Cal.3d at pp. 441-

442.)

The District's alleged property interests in groundwater fall into three categories:

(1) property interests based on a delegation of rights from the State of California, (2)

property interests based on the District's regulatory powers, and (3) property interests

based on its recharge activities in the Orange County groundwater basin. We will

address each in turn below.

For reasons we will explain, we conclude that the District has not raised a triable

issue of material fact that it has any relevant property interests based on any delegation of

rights from the State of California or the District's regulatory powers. We agree with the

District, however, that on the current record defendants have not established, for purposes

of summary adjudication, that the District has no relevant property interests based on its

recharge activities in the Orange County groundwater basin. Specifically, the current

record leaves open the possibility that the District enjoys appropriative water rights to

groundwater in the basin. We will address the consequences of that conclusion for the

District's causes of action for trespass and nuisance in part V.C., post.

1. Property Interests Based on State Delegation of Rights

The District contends the State of California has delegated its rights over

groundwater in the South Basin to the District. It relies on a provision of the OCWD Act,

which states in relevant part as follows: "The right-of-way is hereby given, dedicated and

set apart to locate, construct and maintain any of the works of the district over and

through any of the lands which are now, or may become the property of this state and

81
also there is given, dedicated and set apart, for the uses and purposes aforesaid, all waters

and water rights belonging to this state within the district." (OCWD Act, § 39.)

Defendants disagree with the District's broad interpretation. They argue that this

sentence, read in context, relates only to flood control. For purposes of this appeal, we

will assume without deciding that the District enjoys whatever water rights the State may

have in groundwater in the Orange County groundwater basin under section 39 of the

OCWD Act. But we conclude, for reasons we will explain, that these rights are

insufficient to maintain causes of action for trespass or private nuisance.

"All water within the State is the property of the people of the State, but the right

to the use of water may be acquired by appropriation in the manner provided by law."

(Wat. Code, § 102.) On its face, this statute would appear to confirm the State's property

interest in groundwater in the South Basin. But it has not been read so broadly. As the

Supreme Court has explained, "The state's interest in the public groundwater and surface

waters is to make water policy that preserves and regulates it. The state does not have the

right to possess and use the water to the exclusion of others and has only such

riparian[25], overlying, or appropriative rights as it may obtain by law; its interest is

therefore not an ownership interest, but rather a nonproprietary, regulatory one." (City of

Barstow, supra, 23 Cal.4th at p. 1237, fn. 7.) The statute's reference to "the people of the

25 Riparian rights are water rights enjoyed by landowners whose property abuts
surface water. (People v. Shirokow (1980) 26 Cal.3d 301, 307 (Shirokow); see generally
Pleasant Valley Canal Co. v. Borror (1998) 61 Cal.App.4th 742, 751-754.) Because this
appeal involves groundwater, and not surface water, riparian rights are not at issue.

82
State," rather than the State itself, confirms the State's interest is an abstract one, not a

proprietary one. (Wat. Code, § 102; see State of California, supra, 78 Cal.App.4th at p.

1026.)26

In State of California, our colleagues in Division Two of this court undertook a

comprehensive examination of the State's interests in groundwater. They concluded that

the State "does not 'own' the water of the state in its natural conditions . . . . [T]he state

does not have the right to 'possess and use [the water] to the exclusion of others' and has

only such riparian or appropriative rights as it may otherwise obtain by law." (State of

California, supra, 78 Cal.App.4th at p. 1027, fn. omitted.) "[T]he State's 'ownership'

under Water Code section 102 confers no powers of possession or use upon it." (Id. at p.

1028.) Instead, "Water Code section 102 is an example of what the United States

Supreme Court has called a ' " 'fiction expressive in legal shorthand of the importance to

its people that a State have power to preserve and regulate the exploitation of an

important resource.' ". . .' [Citation.] . . . [Citation.] Water Code section 102 thus

26 Water Code section 102 therefore differs from the statute confirming the State's
interest in land underlying the State's navigable waters and tidal areas. The latter statute
provides as follows: "The State is the owner of all land below tide water, and below
ordinary high-water mark, bordering upon tide water within the State; of all land below
the water of a navigable lake or stream; of all property lawfully appropriated by it to its
own use; of all property dedicated to the State; and of all property of which there is no
other owner." (Civ. Code, § 670, italics added.) "The State is considered to hold 'title as
trustee to such lands and waterways . . . .' (National Audubon Society v. Superior Court
(1983) 33 Cal.3d 419, 434 [italics added].) Thus, the use of the term 'The State' in
section 670 appropriately conveys the sense that the State, as a governmental entity, owns
the tidelands and waterways." (State of California, supra, 78 Cal.App.4th at p. 1025.)
Authorities considering the State's property interests in tidelands and navigable
waterways therefore do not directly apply to the State's interests in surface and ground
waters.
83
expresses the preeminent right of the people of the State to make water policy and control

water usage; it may perhaps also have been intended as a preemptive strike against any

private effort to claim 'ownership' in a proprietary sense. But the State's power under the

Water Code is the power to control and regulate use; such a power is distinct from the

concept of 'ownership' as used in the Civil Code and in common usage." (Id. at p. 1030,

fn. omitted.) In sum, "[t]he State 'owns' the groundwater in a regulatory, supervisory

sense, but it does not own it in a possessory, proprietary sense." (Id. at p. 1033.)

The conclusions of State of California were adopted by the Supreme Court in City

of Barstow, with citation, in the passage quoted above. (City of Barstow, supra, 23

Cal.4th at p. 1237, fn. 7, citing State of California, supra, 78 Cal.App.4th at p. 1027.)

The District's critiques of State of California are therefore foreclosed, and we find State

of California's reasoning persuasive in any event.27

A recent opinion relied on State of California to reverse a defendant's conviction

for petty theft of water from a flowing stream, reasoning that neither the State nor any

private person had a possessory interest in such water. (People v. Davis (2016) 3

Cal.App.5th 708, 710-711, 714 (Davis).) Davis explained, "State of California makes

clear that the state in its role as public trustee does not have any proprietary ownership of

public waters, beyond any riparian or appropriative rights it might acquire as a property

owner." (Id. at p. 714.) "A characterization of a state as a 'trustee' is merely a legal

27 We similarly concur with State of California's interpretation of the Supreme
Court's opinion in AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, and we reject the
District's reliance on that opinion for the same reasons. (See State of California, supra,
78 Cal.App.4th at pp. 1028-1029.)
84
fiction of the 19th century expressing the state's police power over its resources." (Ibid.)

It concluded, "While the People may prosecute defendant for transgressing the state's

regulatory police power [citation], they do not provide any authority to counter the above

stated principle that their ability to regulate his behavior does not create any possessory

interest in the water that constitutes larceny." (Id. at p. 715.)

While City of Barstow, State of California, and Davis do not consider causes of

action for trespass or private nuisance, their conclusions regarding the State's interests in

groundwater establish that those causes of action are untenable here. Like larceny,

trespass requires the invasion of a superior possessory interest in property. (Compare

Davis, supra, 3 Cal.App.5th at p. 713 with Posey, supra, 229 Cal.App.3d at p. 1246.)

Because the State does not have a general possessory interest in groundwater, the District

cannot support a cause of action for trespass based on the State's interest. Similarly, a

cause of action for private nuisance requires harm to a property interest. (Institoris,

supra, 210 Cal.App.3d at p. 20.) The State, however, has no general propriety (i.e.,

property) interest in groundwater; its interest is regulatory and supervisory. (City of

Barstow, supra, 23 Cal.4th at p. 1237, fn. 7; State of California, supra, 78 Cal.App.4th at

p. 1034.) Such a regulatory and supervisory interest is not a property interest that can

support a cause of action for private nuisance either.

The District points out that an earlier opinion, Selma Pressure Treating Co. v.

Osmose Wood Preserving Co. (1990) 221 Cal.App.3d 1601, 1618 (Selma), held that the

State's interest in groundwater may be a sufficient property interest to support damages in

a public nuisance cause of action. Selma was an appeal at the pleading stage, following

85
the sustaining of several demurrers. (Id. at p. 1606.) The reviewing court considered

whether a cause of action for equitable indemnity could rest on a potential claim for

damages by the State in an action for public nuisance. (Id. at pp. 1611, 1619.) After

reviewing Water Code section 102 and subsequent case law, Selma observed, "[B]oth

statute and case law suggest the state has a legally cognizable property interest in the

waters of the state." (Id. at p. 1616.) And, as alternate theories, Selma identified

conventional water rights (e.g., riparian or appropriative) and the State's parens patriae

role in protecting public resources. (Id. at p. 1618.) Selma concluded that the complaint

sufficiently stated a cause of action for equitable indemnity based on a damages claim by

the State. (Id. at p. 1619.)

The reasoning in Selma has been undermined by the more recent opinions

discussed above, most importantly the Supreme Court's statement—contrary to Selma—

that the State's interest in groundwater is "a nonproprietary, regulatory one." (City of

Barstow, supra, 23 Cal.4th at p. 1237, fn. 7.) State of California criticized the reasoning

of Selma and the authorities on which it relies, and for the same reasons we agree Selma

is unpersuasive. (See State of California, supra, 78 Cal.App.4th at p. 1029, fn. 15.)

Selma's conclusion that the State's parens patriae role confers a "legally cognizable

interest" is inapplicable here. Whatever the meaning of the OCWD Act, its delegation

was limited at most to "waters and water rights belonging to this state within the district."

(OCWD Act, § 39.) The State's parens patriae role, and its powers and duties flowing

from that role, are not "waters and water rights" within the meaning of section 39 of the

OCWD Act. The District cannot assert parens patriae rights to support its nuisance

86
claim. And, as for conventional water rights, the District has made no allegation that the

State has such rights within its territory that the District now enjoys. The State's

delegation of such rights is therefore inapplicable here as well. (We will consider the

District's own conventional water rights in part V.B.3. post.)28

The District also relies on Niles Sand & Gravel Co. v. Alameda County Water

Dist. (1974) 37 Cal.App.3d 924 (Niles), an opinion involving a county water district that

sought damages and an injunction to stop a landowner from wasting water. Niles does

not aid the District. Although the exact nature of the claims asserted is unclear, the water

district sought to enforce the correlative rights doctrine, which limits the ability of

landowners to use water for nonbeneficial purposes. (Id. at p. 933.) The doctrine

imposes an obligation, or servitude, on all overlying landowners in a groundwater basin

"to refrain from discharging more than their reasonable share of the underground water

28 The District claims its property interests in groundwater were recognized in
Orange County Water Dist. v. The Arnold Engineering Co., supra, 196 Cal.App.4th
1110, an opinion in a similar though unrelated action by the District against alleged
groundwater polluters. That opinion considered whether the District was asserting claims
on behalf of the public, which could have called into question the legitimacy of its
contingency fee arrangement with its attorneys. (Id. at p. 1123.) The reviewing court,
viewing the complaint as a whole, concluded that the District was suing to protect its own
interests in groundwater and not those of the general public: "Indeed, regardless whether
the Water District's interest in the groundwater is classified as regulatory, proprietary, or
usufructuary, the Water District is entitled to recover monetary damages for the
investigation and remediation costs it incurred and will incur in the future." (Id. at pp.
1125-1126, fn. omitted.) The court relied primarily on the District's claims under the
OCWD Act and the HSAA. (196 Cal.App.4th, at p. 1126.) It mentioned negligence and
trespass only in passing, and it called any argument based on public nuisance a "red
herring." (Id. at pp. 1125-1126.) It did not engage in a thorough analysis of the District's
property interests in groundwater. We therefore find the District's reliance on this
authority unpersuasive.
87
therein." (Id. at p. 934.) Niles held that this servitude was public "because the right to

enforce it is held by a public agency [i.e., the water district] as trustee for all surface

owners and suppliers of water (i.e., the 'public') in the Niles Basin." (Id. at p. 935.) The

water district's ability to enforce this public servitude derived not from its property

interests but from its police powers as a public agency. (Id. at pp. 936-937.) Here, by

contrast, the District does not seek to exercise any police power. Instead, it asserts

common law claims available to public and private plaintiffs alike. Niles is inapposite.29

For the foregoing reasons, we conclude that the State's delegation of rights in

section 39 of the OCWD Act does not confer any property interests in groundwater in the

South Basin to the District. The District therefore cannot support a claim for trespass or

private nuisance on this basis.

2. Property Interests Based on the District's Regulatory Powers

The District contends its regulatory powers over the groundwater in the South

Basin confer a property interest in the groundwater sufficient to support its trespass and

nuisance claims. It points to its power to require registration of water producers (OCWD

Act, §§ 24, 35), its power to require installation of a water meter to track the amount of

water extracted (id., § 35), its power to impose fees based on that amount (id., §§ 23, 27,

29 In a footnote, Niles states it was "undisputed that the district owns the ground
water in the Niles Basin as trustee for all the overlying surface owners located within its
boundaries." (Niles, supra, 37 Cal.App.3d at p. 929, fn. 5.) Niles did not examine that
proposition, and, as noted, the water district did not rely on a property interest to bring its
claims against the landowner. (Id. at pp. 936-937.) To the extent this footnote articulates
a general legal principle regarding ownership of groundwater, we disagree for the reasons
we have already stated.
88
29), its power to enjoin unauthorized water producers from extracting water (id., § 32),

and its power to regulate the amount of water extracted through fees to encourage

responsible water extraction (id., § 31.5). No person other than the District may store

water in the Orange County groundwater basin absent agreement by the District, and the

District may regulate this storage even when authorized. (Id., § 2.1, subd. (a).) In the

District's view, these powers taken together confer on the District the right to control

access to groundwater in the Orange County groundwater basin, including both inflows

and outflows. The District views the result of these powers as akin to a property interest.

We disagree that the District's regulatory powers over groundwater confer a

property interest. As we have discussed above with respect to the State, the power to

regulate and supervise is not the same as ownership or other interest in property. (See

City of Barstow, supra, 23 Cal.4th at p. 1237, fn. 7; State of California, supra, 78

Cal.App.4th at p. 1034.) The fact that the District may regulate access to groundwater,

for example, does not mean that the District owns the groundwater. The District has

cited no authority for the proposition that its regulatory powers confer a property interest,

and we are aware of none. The District's argument is unpersuasive.30

30 The District also references the OCWD Act, sections 2 and 8. Section 2,
subdivision (9), gives the District the power to bring actions "to prevent interference with
water or water rights used or useful to lands within the district, or diminution of the
quantity or pollution or contamination of the water supply of the district, . . . or to prevent
any interference with the water or water rights used or useful to the district which may
engager or damage the inhabitants, lands, or use of water in the district . . . ." This
section confers the power to bring litigation; it does not confer any property interests in
groundwater. The District has not asserted a stand-alone claim based on section 2 of the
OCWD Act, so we need not decide whether it confers any right of action on the District
89
 3. Property Interests Based on the District's Recharge Activities

The District contends that its efforts to recharge the groundwater in the Orange

County groundwater basin confer property interests in the groundwater itself, in the form

of water rights. As explained above, the District acquires water from various sources and

discharges it (or "spreads" it) at District facilities in Orange County. The process

replenishes groundwater in the Orange County groundwater basin. It causes groundwater

levels to rise throughout the basin, including in the South Basin, because the entire basin

is hydrologically connected. The recharged groundwater is effectively stored in the basin

until water producers extract it. The District itself does not use or extract groundwater

from the basin.31

In this appeal, the District claims it enjoys usufructuary rights to groundwater in

the South Basin, but it does not specify with any particularity the type of usufructuary

rights (overlying, appropriative, or prescriptive) at issue. Instead, the District argues that

its recharge activities store water in the Orange County groundwater basin, that its

storage of water is a beneficial use (and allows for additional beneficial uses by others),

and that the District thereby has usufructuary rights to groundwater in the basin,

separate from generally applicable laws. The District has asserted a claim under section
8, which we discuss separately. (See part III., ante.) But Section 8 also does not confer
any property interests in groundwater on the District.

31 In its opening brief, the District relied on evidence concerning its recharge
activities that the trial court excluded. We have already explained that the District
forfeited any claims of error as to such exclusion by not raising them until its reply brief.
(See fn. 6, ante.) The essential facts regarding the District's recharge activities were
admitted, however, so the District's broader contention remains viable on appeal.
90
including in the South Basin. Based on the District's argument, we can conclude the

District does not assert overlying or prescriptive rights to groundwater. We will therefore

examine the District's potential appropriative rights.

"The appropriation doctrine confers upon one who actually diverts and uses water

the right to do so provided that the water is used for reasonable and beneficial uses and is

surplus to that used by riparians or earlier appropriators." (United States v. State Water

Resources Control Bd. (1986) 182 Cal.App.3d 82, 101.) "To constitute an appropriation,

three elements must coexist, 'the intent to take, accompanied by some open, physical

demonstration of the intent, and for some valuable use' [citation]." (Fullerton v. State

Water Resources Control Bd. (1979) 90 Cal.App.3d 590, 598, italics omitted (Fullerton);

see California Trout, Inc. v. State Water Resources Control Bd. (1979) 90 Cal.App.3d

816, 820.)

It is undisputed that the District does not itself extract or "actual[ly] divert"

groundwater from the Orange County groundwater basin. By definition, therefore, the

District does not appropriate groundwater in the South Basin. Absent evidence of

appropriation, the District generally cannot claim appropriative rights. (See City of

Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 925 ["The right of an appropriator

depends upon an actual taking of water."]; Crane v. Stevinson (1936) 5 Cal.2d 387, 398;

City of Santa Maria, supra, 211 Cal.App.4th at p. 278.)32

32 Because the District does not appropriate water from the South Basin, the parties'
dispute over whether storage of groundwater is a beneficial use is irrelevant. The
91
 The District argues that it enjoys an exception to this general rule based on its

importation or recharge activities, which deposit water from various sources into the

Orange County groundwater basin. The District's argument is based on an appropriator's

right to reclaim or re-appropriate water it has imported into a river or groundwater basin

(See City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199, 260 (City of Los

Angeles II); City of Los Angeles v. City of Glendale (1943) 23 Cal.2d 68, 76 (City of Los

Angeles I).) For reasons we will explain, and based on the current record, we conclude

defendants have not offered undisputed facts sufficient to rebut the District's claim.

By importing water and recharging the Orange County groundwater basin, the

District loses its property interest in the imported water itself. (Stevens v. Oakdale

Irrigation Dist. (1939) 13 Cal.2d 343, 350.) But the District may retain an equivalent

right to reclaim or reappropriate water from the basin. "Water which has been

appropriated may be turned into the channel of another stream, mingled with its water,

and then reclaimed . . . ." (Wat. Code, § 7075.) "The rule codified by this statute applies

as well to the addition and withdrawal of water in an underground basin." (City of Los

Angeles II, supra, 14 Cal.3d at p. 260; see City of Los Angeles I, supra, 23 Cal.2d at pp.

76-77.) The rule "allow[s] an appropriator to retain an interest in appropriated water that

the appropriator brings from one stream or basin and adds to another." (City of Santa

Maria, supra, 211 Cal.App.4th at p. 302.)

District's appropriative rights to the water sources from which it obtains water for
recharge—which it then uses, beneficially or not, for storage—are not at issue.
92
 This rule is intended to encourage the use of natural watercourses and basins for

efficient transportation and storage of water. (City of Los Angeles I, supra, 23 Cal.2d at

pp. 76-77.) As such, the rule applies most often where the addition and withdrawal occur

as part of a plan to use the natural watercourse or basin for transportation and storage,

i.e., "where the recapture of the water by the person bringing it from [water source] is a

part of his original project, and the foreign water was from the beginning turned by him

into [the watercourse or underground basin] not simply to get rid of a discharge, but for

the express purpose of taking it out again below." (Wiel, Mingling of Waters (1915) 29

Harv. L.Rev. 137, 147, cited by City of Los Angeles I, supra, 23 Cal.2d at p. 78; see 62

Cal.Jur.3d (2013) Water, § 258, pp. 323-324.)

Crucially, the rule applies only where the water importer intends to reappropriate

the imported water: "Such water is not abandoned where there is an intent to recapture

it." (Barton Land & Water Co. v. Crafton Water Co. (1915) 171 Cal. 89, 94, italics

added; see 62 Cal.Jur.3d, supra, Water, § 593, pp. 729-730.) In explaining its landmark

holdings on this subject, the Supreme Court emphasized this intent requirement: "One

basis for the holding was the trial court's finding that before commencing the importation

of Owens water, plaintiff had formed an intention to recapture the return waters used for

irrigation in the San Fernando Valley whenever such return waters were needed for its

municipal purposes and the use of its inhabitants, and that the Los Angeles Aqueduct had

been planned and located to facilitate the availability and recapture of such return waters.

Under these circumstances, plaintiff retained its prior right to the return waters wherever

they might appear." (City of Los Angeles II, supra, 14 Cal.3d at p. 257; see id. at pp. 259-

93
260.) Under certain circumstances, abandonment may also be avoided where the water

importer sells or transfers its right to re-appropriate to another person. (See Stevinson

Water Dist. v. Roduner (1950) 36 Cal.2d 264, 267-268 [enforcing agreement to transfer

right to reappropriate imported water]; see also Richardson v. McNulty (1864) 24 Cal.

339, 344-346 [distinguishing the concepts of transfer and abandonment in the context of a

mining claim].)

This issue, the District's intent to reappropriate, was not a focus of the summary

adjudication proceedings in the trial court. We requested supplemental briefing from the

parties regarding whether we could conclude, on the current record, that the undisputed

facts showed the District did not have sufficient intent to recapture to invoke the rule

discussed above and therefore did not enjoy any appropriative water rights in the South

Basin. (See Blackwell v. Vasilas (2016) 244 Cal.App.4th 160, 167 ["We must affirm the

trial court's ruling on any correct legal theory, so long as the parties had an opportunity to

address it in either the trial or appellate court."]; Schmidt, supra, 223 Cal.App.4th at

p. 1498.)

Here, as discussed above, the District does not extract (or reappropriate) any water

from the Orange County groundwater basin. Nor does it appear based on the current

record that it intends to extract any such water. Instead, replenishment of the

groundwater basin is, in and of itself, the purpose for which the District engages in

groundwater recharge. Other water producers, not the District, extract and appropriate

basin water for their own purposes. The District points out that water producers pay fees

to the District based on the amount of water they extract from the basin, but based on the

94
current record these fees appear to be regulatory, not transactional, in nature. It does not

appear that the producers are purchasing water or water rights from the District.

However, as the District persuasively argues in its supplemental briefing,

defendants did not raise the issue of intent in their motions for summary adjudication or

separate statements in support thereof. The District contends it would have offered

additional evidence of its intent in the form of testimony from District employees and

evidence of transactions, contracts, or other arrangements between the District and water

producers relating to the disposition of water or water rights.

Because defendants did not raise the issue of intent in their motions, we conclude

the District was not required, nor did it have an adequate opportunity, to develop the

factual record and raise triable issues of fact relating to the issue of intent to reappropriate

groundwater following its recharge activities. Due process and fundamental fairness

require us to refrain from deciding this issue against the District in the absence of such an

opportunity. (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142,

152, fn. 9 ["Accordingly, although we have serious doubts whether such triable issues

exist in this case, we leave the issue for another case and another day."]; Folberg v. Clara

G.R. Kinney Co. (1980) 104 Cal.App.3d 136, 140-141.)

We therefore conclude, in this appeal and on the current record only, that

defendants have not shown the District does not enjoy appropriative water rights in the

South Basin based on its recharge activities. We will next consider whether these

appropriative rights are a sufficient basis on which to allege claims for trespass or

nuisance under the circumstances here.

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 C. Appropriative Water Rights and the District's Claims

1. Trespass

Trespass, as we have discussed, protects against the unlawful interference with

possession of property. (Wilson, supra, 32 Cal.3d at p. 233; Staples, supra, 189

Cal.App.3d at p. 1406.) Although appropriative water rights have been described as

"possessory property right[s]" (Fullerton, supra, 90 Cal.App.3d at p. 599), the trespass

cause of action in the real property context has generally been applied to protect

possessory property rights in land (Wilson, at p. 233; McLeod v. Fox West Coast Theatres

Corp. (1937) 10 Cal.2d 383, 387; Donahue Schriber Realty Group, Inc. v. Nu Creation

Outreach (2014) 232 Cal.App.4th 1171, 1178; 5 Witkin, Summary of Cal. Law (10th ed.

2005) Torts, §§ 693-694). The possession required to maintain a trespass cause of action

is most clearly seen in the context of land: "Actual possession is usually evidenced by

occupation, by substantial enclosure, by cultivation or by appropriate use according to the

particular locality and quality of the property." (Williams, supra, 41 Cal.App.3d at p.

508.)

Contamination of subsurface soil has been held to interfere with a landowner's

possessory interest in its land. (See, e.g., Starrh & Starrh Cotton Growers v. Aera

Energy LLC (2007) 153 Cal.App.4th 583, 592; Cassinos v. Union Oil Co. (1993) 14

Cal.App.4th 1770, 1778 (Cassinos).) " 'The essence of the cause of action for trespass is

an "unauthorized entry" onto the land of another.' " (Cassinos, at p. 1778.) Thus,

"causing subsurface migration of fluids into a mineral estate without consent constitutes a

trespass." (Ibid.)

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 Here, property interests in land are not at issue. As noted, the District does not

own any property in the South Basin. The District's trespass claim must be based, if at

all, on the appropriative water rights discussed above. The District has not cited any

authority where contamination of water was held to be a trespass against a water right,

and we are aware of none. It therefore appears to be an issue of first impression in

California.

The Restatement Second of Torts emphasizes that a trespass claim based on water

contamination must have a relationship to land: "The pollution of water may be the result

of an act constituting a trespass, as in the case of a foreign substance deposited in the

water while it is on the land of the plaintiff or deposited upstream and then brought to the

land by the stream." (Rest.2d Torts, § 849, com. c.) It classifies harm caused by

contamination or pollution of the water itself as a form of nuisance. (Id., § 849, com. e.)

The parties have cited only one case in which interference with a water right was

held to be a common law trespass. (See Fall River Valley Irr. Dist. v. Mt. Shasta Power

Corp. (1927) 202 Cal. 56 (Fall River).) In Fall River, our Supreme Court considered

competing claims to the water flows of the Fall River. (Id. at p. 58.) The plaintiff

contended it had the right, under permits issued by the State of California, to appropriate

a certain amount of Fall River water flows. (Ibid.) The defendant denied the validity of

the permits and contended it held a riparian right, based on its ownership of abutting

lands, to all water naturally flowing in the Fall River. (Ibid.) In rejecting the plaintiff's

contention, the Supreme Court held that "a mere appropriator, until he obtains title by

prescription, is, as against the right of a riparian owner, a trespasser." (Id. at p. 70.) " 'As

97
to a nonriparian owner the riparian owner is under no duty to share the waters of the

creek and the slightest use by such nonriparian owner diminishes to some extent the flow

of the stream.' " (Id. at p. 71.)

Although the rights of riparian owners have subsequently been limited by an

amendment to our State Constitution, Fall River's characterization of unauthorized water

users as trespassers remains valid. (Orange Cnty. Water Dist. v. City of Riverside (1959)

173 Cal.App.2d 137, 166.) And the principle that the unauthorized diversion or use of

water may be a trespass is codified by statute and has been applied in a number of

authorities. (Wat. Code, § 1052, subd. (a); see, e.g., People v. Shirokow, supra, 26 Cal.3d

at p. 304; Millview County Water Dist. v. State Water Resources Control Bd. (2014) 229

Cal.App.4th 879, 895-896.) But neither Fall River nor that statute support a cause of

action for trespass under the circumstances here. The District has not been deprived, or

dispossessed, of any quantity of water to which it is entitled. Its water rights also do not

depend on land ownership, as did the riparian rights claimed in Fall River. As such,

these authorities have little relevance to the District's claim.33

33 The District's reliance on Niles, supra, 37 Cal.App.3d 924, is unpersuasive for the
reasons we have already discussed above. Niles did not involve a trespass claim; the
lawsuit was instead a product of the plaintiff's police power as a public agency. (Id. at
pp. 936-937.) The District also cites an opinion from New York's highest court for the
proposition that an unreasonable use of water may constitute a trespass. (See Forbell v.
New York (1900) 164 N.Y. 522.) But the District misreads Forbell. In that case, the
plaintiff was a landowner who was deprived of his natural supply of underground water
by the large wells and waterworks constructed by the defendant, a neighboring
landowner. (Id. at p. 524.) The court held that the defendant's activities were
unreasonable: "But to fit [the neighboring land] up with wells and pumps of such
pervasive and potential reach that from their base the defendant can tap the water stored
98
 The alleged trespass here consists of contamination of groundwater in the South

Basin, some of which has been extracted by a well operated by the water producer

IRWD. Water in its natural state, before it is appropriated or otherwise captured, cannot

be owned or possessed by any private person. (State of California, supra, 78 Cal.App.4th

at p. 1025; see Davis, supra, 3 Cal.App.5th at p. 714.) As such, its contamination,

without additional facts, cannot constitute a trespass. The additional facts here consist of

the District's potential appropriative water rights throughout the Orange County

groundwater basin based on its recharge activities. These appropriative rights are merely

usufructuary, i.e., they confer the right to use water. They do not confer a right to possess

any specific corpus of water. (Audubon Society, supra, 33 Cal.3d at p. 441.) The

District's appropriative rights, based on its recharge activities, do not have a sufficient

nexus with the alleged contaminated water in the South Basin to establish a possessory

property interest that can support a cause of action for trespass.34 Even accepting that

in the plaintiff's land, and in all the region thereabout, and lead it to his own land, and by
merchandising it prevent its return, is, however reasonable it may appear to the defendant
and its customers, unreasonable as to the plaintiff and the others whose lands are thus
clandestinely sapped, and their value impaired." (Id. at p. 526.) Analogizing the
defendant's activities to an uncontrolled explosion, the court affirmed the trial court's
finding that defendant had committed a trespass by applying force to plaintiff's land and
thereby impairing its value. (Ibid.) Like Fall River, Forbell has no application here. The
District does not assert any impairment of its interest in land, nor does the District allege
it has been dispossessed of any water to which it was entitled. Forbell does not support a
cause of action for trespass under the circumstances here.

34 The District also alleges that its recharge activities prevent saltwater intrusion
from the Pacific Ocean into groundwater. We disagree that this additional benefit has
any significance for the District's trespass and nuisance claims. In particular, we disagree
that this benefit can be analogized to a physical fence around a plot of land that would be
99
appropriative water rights are possessory in some sense, it is clear that the District's rights

do not confer any meaningful right of possession on the any corpus of contaminated

water in the South Basin. Nor do the District's activities show that it possesses any water

in the South Basin. (See Williams, supra, 41 Cal.App.3d at p. 508.) The District's

trespass claim, based on some future exercise of appropriative rights that could result in

the extraction of contaminated water, is wholly speculative and cannot be supported on

the undisputed facts here.35

For the foregoing reasons, even accepting that the District has appropriative water

rights in groundwater in the Orange County basin, the District does not have a possessory

property right sufficient to support a claim for trespass on the facts here. Summary

adjudication of that claim against the District was therefore appropriate.

2. Nuisance

A nuisance is "[a]nything which is injurious to health . . . or is indecent or

offensive to the senses, or an obstruction to the free use of property, so as to interfere

with the comfortable enjoyment of life or property . . . ." (Civ. Code, § 3479.) "The

basic concept underlying the law of nuisances is articulated in the ancient maxim sic

utere tuo ut alienum non laedas, that is, so use your own as not to injure another's

evidence of possession. (Cf. Williams, supra, 41 Cal.App.3d at p. 508 [evidence of an
enclosure of land is "evidence tending to show possession" in a trespass cause of action].)
We also disagree that the District's regulatory powers confer any right of possession for
reasons we have discussed in part V.B.2., ante.

35 We need not consider whether a trespass claim would be viable if the District were
extracting or capturing water in the South Basin that was contaminated.
100
property." (Lussier v. San Fernando Valley Water Dist. (1988) 206 Cal.App.3d 92, 100.)

"More specifically an action for a private nuisance is designed to redress a substantial and

unreasonable invasion of one's interest in the free use and enjoyment of one's property."

(Ibid., fn. omitted.)

As noted, a cause of action for nuisance under a theory of private nuisance

requires a plaintiff to show inference with the use or enjoyment of a property interest.

Unlike for trespass, however, interference with a possessory property interest is not

required: " '[A]ny interest sufficient to be dignified as a property right' will support an

action based on a private nuisance . . . ." (Venuto v. Owens-Corning Fiberglas Corp.

(1971) 22 Cal.App.3d 116, 125 (Venuto).) Nor is a connection to land a generally

necessary element. (See Institoris, supra, 210 Cal.App.3d at p. 20 ["[A] private nuisance

will support recovery not simply for a disturbance of land, but also for interference with

any interest sufficient to be dignified as a property right."].)

Defendants argue the District did not have any relevant property interests in the

South Basin because it did not use any groundwater there. We disagree. As we have

explained above, the District may have appropriative water rights based on its recharge

activities. Appropriative water rights are property rights, and they are therefore sufficient

to support a claim of private nuisance. Moreover, although the undisputed facts show

that the District does not use its appropriative water rights to extract or produce water, we

conclude defendants have not shown there are no triable issues of material fact regarding

other uses of those rights or the District's enjoyment of them. Defendants are not entitled

101
to summary adjudication of the District's nuisance claim based on a theory of private

nuisance.

A property interest sufficient to support a cause of action for private nuisance is

generally sufficient to support a cause of action for public nuisance as well. (Venuto,

supra, 22 Cal.App.3d at pp. 124-125.) Given our conclusion that the District has a

property interest sufficient to support a nuisance cause of action, we need not consider

whether the District could assert a cause of action even in the absence of that property

interest, i.e., based solely on its special injury. (Birke v. Oakwood Worldwide (2009) 169

Cal.App.4th 1540, 1551 ["[W]hen the nuisance is a private as well as a public one, there

is no requirement the plaintiff suffer damage different in kind from that suffered by the

general public."]; Venuto, at pp. 124-125.) We therefore need not consider whether the

District could maintain a cause of action for nuisance based solely on a special injury

unrelated to property. (See In re Firearm Cases, supra, 126 Cal.App.4th at p. 987, fn.

21.)

The trial court identified several additional grounds supporting its order grounding

summary adjudication of this cause of action, including the District's inability to show a

substantial and unreasonable harm sufficient to support a nuisance and Gallade's showing

of overlying water rights in the South Basin. The District claims error in each of these

grounds; defendants do not respond. We agree with the District that these grounds

cannot support summary adjudication. The evidence of widespread VOC contamination

in groundwater raises a triable issue of material fact regarding the issue of substantial and

unreasonable harm. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105; Monks

102
v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 303.) And Gallade's

overlying water rights do not excuse its alleged creation of a nuisance.

For the foregoing reasons, the trial court erred by granting defendants' motions for

summary adjudication of the District's cause of action for nuisance. With the exception

of UCI, we will reverse the judgments as to the District's nuisance claim.36

VI. Declaratory Relief

The trial court rejected the District's declaratory relief cause of action, either

through summary adjudication, judgment on the pleadings, or following trial, based on

the District's inability to maintain any other, coercive causes of action. The District

contends that the judgment as to its cause of action for declaratory relief should be

reversed if the judgments as to any of its other causes of action is reversed. Defendants

do not address this contention, except to argue that the judgments as to the other causes

of action should be affirmed.

36 UCI obtained summary adjudication of the District's nuisance claim on the
alternate ground of causation. The District does not offer any additional claims of error
with respect to this cause of action that we have not already discussed with respect to its
causes of action against UCI under the OCWD Act and for negligence. (See parts III.B.
and IV.B., ante.) The District's contentions remain unpersuasive, so we will affirm the
judgment against the District on its nuisance cause of action as to UCI on the alternate
ground of causation. Ricoh's contention that the judgment as to it should be affirmed on
the alternate ground of causation is unpersuasive as well. The court did not summarily
adjudicate the District's nuisance cause of action against Ricoh on site-specific causation
grounds, and Ricoh has offered no argument why it should have. (See part II.B.4., ante.)
Steelcase's contention that the trial court should have granted summary adjudication of its
nuisance claim is unpersuasive for the same reasons we have already discussed. (See part
II.B.6., ante.)
103
 We agree with the District. The District's cause of action for declaratory relief

incorporates the allegations of its other causes of action and requests a declaration of the

parties' respective financial obligations stemming from the same facts. Because the

District may maintain at least one other cause of action against each defendant, it may

also maintain its declaratory relief cause of action. (See Southern Counties Gas Co. v.

Ventura Pipeline Constr. Co. (1971) 19 Cal.App.3d 372, 381.) Declaratory relief may be

sought in addition to other, coercive remedies. (Code Civ. Proc., § 1062.) In light of our

conclusion, we need not address the parties' other, subsidiary arguments regarding

declaratory relief.

DISPOSITION

The judgments involving Beatrice, Bell, BorgWarner, DRSS, Emerson, Gallade,

GE, ICI, Marotta, Ricoh, SABIC, Sanmina, and UNISYS are affirmed in part as to the

District's cause of action for trespass and reversed in part as to the District's causes of

action under the OCWD Act, the HSAA, and for negligence, nuisance, and declaratory

relief.

The judgment involving GE Aviation is affirmed in part as to the District's causes

of action for negligence and trespass and reversed in part as to the District's causes of

action under the OCWD Act, the HSAA, and for nuisance and declaratory relief.

The judgment involving UCI is affirmed in part as to the District's causes of action

under the OCWD Act and for negligence, trespass, and nuisance and reversed in part as

to the District's causes of action under the HSAA and for declaratory relief.

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 The joint judgment involving Accurate Circuit, Brenntag, Dyer, Embee, ITT, Soco

West, and Steelcase is affirmed in part as to the District's cause of action for trespass and

reversed in part as to the District's causes of action under the OCWD Act, the HSAA, and

for negligence, nuisance and declaratory relief.

In the interests of justice, the parties shall bear their own costs on appeal.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

105