Result

Gordon & Rees PCE Litigators Celebrate Third Victory in Two Weeks

August 2011

Partners Kristin Reyna, Matthew Nugent and Gery Zacher, following their recent Ninth Circuit success for their client, Cooper Industries, in the case Hinds Investments, L.P. v. Angioli, et al., No. 10-15605 (August 1, 2011), obtained summary adjudication of numerous claims against Cooper by the same plaintiff in another pending lawsuit in the Southern District of California. 

In Hinds Investments, L.P. v. Gregory, Case No. 3:07-cv-00848 AJB (WVG) (S.D. Cal. August 11, 2011), Cooper brought a motion for summary judgment against plaintiff's claims, which arose from Cooper's predecessor's franchising of a dry cleaning store and sale of dry cleaning equipment. Plaintiff, the property owner, alleged contamination of its property by perchloroethylene ("PCE") used in the dry cleaning store's operation. Citing the Ninth Circuit's recent decisions in both Hinds Investments, v. Angioli (Nos. 10-15605 and 10-15607) and Team Enterprises, LLC v. Western Investment Real Estate Trust, No. 10-16916 (July 26, 2011), a related appeal, the Court granted Cooper's motion as to plaintiff's CERCLA and HSAA claims which alleged Cooper to be an "arranger," as well as adjudicated plaintiff's RCRA claim, nuisance claim and trespass claim in Cooper's favor, based on the Ninth Circuit's recent jurisprudence.

Specifically, the Southern District found that Cooper could avail itself of the "useful product defense" as its sale of equipment did not include any intent to dispose of hazardous substances, and that Cooper's predecessor's franchising of the store did not amount to "controller" arranger liability.  The Court found that Cooper also did not have "contributor" liability under RCRA, as the evidence did not support that it had any active involvement in the waste disposal process. The Court also held that neither Martin's equipment instruction manual, nor anything else Martin did, was sufficient to qualify as "affirmative acts toward the improper discharge of waste" required to support nuisance liability. Finally, the Court found that the trespass claim also failed, as Martin did not cause the unauthorized entry of pollutants onto the property, because the tenants were the ones to consent to the disposal process and were the ones to actually dispose of the PCE on the property.

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