Opinion
[CERTIFIED FOR PARTIAL PUBLICATION. ]
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.B. of the Discussion, entitled, " Who Had the Burden to Prove Abatability."
As Modified on Denial of Rehearing Aug. 1, 1994.
Review Granted Oct. 27, 1994.
Review Granted Previously published at: 26 Cal.App.4th 760, 35 Cal.App.4th 1449, 31 Cal.App.4th 945, 40 Cal.App.4th 303
Opinion on pages 303-325 omitted.
REVIEW GRANTED. [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
[31 Cal.Rptr.2d 697] McCutchen, Doyle, Brown & Enersen, Christopher Berka, Claire T. Cormier and Steven G. Rosen, San Jose, for plaintiffs and appellants.
Lasky, Haas, Cohler & Munter, Lasky, Haas & Cohler, Moses Lasky, Richard Haas, San Francisco, Jose N. Uranga, Fairlawn, Epstein, Becker & Green, and Janet Morgan, San Francisco, for defendant and appellant.
OPINION
SIMS, Associate Justice.
In this action seeking damages for contamination of real property with toxic waste, defendant Aerojet-General Corporation appeals from a judgment upon a jury's verdict awarding damages to the property owners, plaintiffs Catherine Holthouse Mangini, Albert D. Mangini, Michele Lynn Mangini, Michael Keith Mangini, and Melissa Ann Mangini.
This case comes before us for the second time. In the first appeal, which arose upon a demurrer, we held various causes of action were barred by the statute of limitations but that plaintiffs should be allowed to amend their complaint to plead and prove a continuing (as opposed to permanent) nuisance and a continuing trespass so as to avoid the statute of limitations. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 281 Cal.Rptr. 827[ Mangini I ].)
Following a jury verdict in plaintiffs' favor, Aerojet now appeals from the judgment and the order denying Aerojet's motion for judgment notwithstanding the verdict, contending among other things that no substantial evidence supports the jury's finding of continuing nuisance or continuing trespass. Plaintiffs cross-appeal regarding issues of costs, attorney fees, and punitive damages. In an unpublished portion of the opinion, we conclude, based on the doctrine of law of the case, that the trial court correctly assigned plaintiffs the burden of proving a continuing nuisance. In the published portion of the opinion, we conclude plaintiffs failed to present substantial evidence of continuing nuisance or continuing trespass. This conclusion obviates the need to address the cross-appeal. We shall therefore reverse the judgment and direct the trial court to enter judgment in Aerojet's favor.
Another defendant named in the complaint, Cordova Chemical Company, obtained a judgment of dismissal before trial and therefore is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
We confine our recitation of the facts to those matters necessary for our disposition of this appeal.
Plaintiffs are the current owners of 2,400 acres of land in Sacramento County, having acquired their interests between 1975 and 1983.
From 1960 to 1970, Aerojet, which owns adjacent property, leased plaintiffs' property from its prior owners, Samuel H. and Jess G. Cavitt, for use as a waste disposal site. The written lease, which was recorded in the county recorder's office, acknowledged that Aerojet's activities on the property might be hazardous and constitute a nuisance. During the lease term, Aerojet used the property to dispose of hazardous waste, primarily by incineration, on the central portion (550 acres) of the property. Then and now, the owners' use of the property has been limited to grazing cattle.
[31 Cal.Rptr.2d 698] In 1979, in an action unrelated to this lawsuit, the State of California filed a complaint against Aerojet, alleging Aerojet's own land was contaminated with toxic chemicals. An investigator for the California Department of Justice contacted plaintiffs and informed them he was conducting an investigation of Aerojet's hazardous waste disposal practices in the area. In 1984, the government amended its complaint against Aerojet to include allegations of contamination of acreage previously leased by Aerojet, including plaintiffs' property. The federal government also became involved in pursuing action against Aerojet.
In 1984, Aerojet requested and received plaintiffs' permission to go onto plaintiffs' property to conduct tests. These tests showed the presence of hazardous chemicals— the cleaning solvent trichloroethylene (TCE) and heavy metals (arsenic, lead, chromium, zinc, and copper)— at various points within the central 550-acre area where the waste disposal occurred. The levels of TCE and heavy metals exceeded acceptable levels identified by government regulatory standards.
In January 1988, plaintiffs filed a complaint against Aerojet seeking damages for contamination of the property. The complaint alleged nine causes of action: (1) public nuisance, (2) private nuisance, (3) negligence, (4) negligence per se, (5) trespass, (6) strict liability for ultrahazardous activities, (7) unlawful business practices, (8) equitable indemnity for any government-directed testing and cleanup costs, and (9) declaratory relief with respect to the parties' obligations for testing and clean-up costs. (Mangini I, supra, 230 Cal.App.3d at pp. 1132-1133, 281 Cal.Rptr. 827.)
The trial court sustained a demurrer to the original complaint on the grounds it failed to state a cause of action and was barred by the statute of limitations. Plaintiffs appealed, and we reversed. (Mangini I, supra, 230 Cal.App.3d 1125, 281 Cal.Rptr. 827.) We held (1) plaintiffs could sue in nuisance for direct injury to their property (id. at p. 1133, 281 Cal.Rptr. 827); (2) Aerojet could be liable for having created the nuisance (id. at p. 1137, 281 Cal.Rptr. 827); (3) plaintiffs had sufficiently alleged special injury to allow them to sue for damages for public nuisance (ibid. ); (4) contrary to Aerojet's contention, the lease attached to the complaint did not show as a matter of law that Aerojet's acts were undertaken lawfully with the consent of the previous owners/lessors (id. at p. 1138, 281 Cal.Rptr. 827); (5) the complaint stated a cause of action for trespass (id. at p. 1141, 281 Cal.Rptr. 827); (6) although the complaint did not specify whether the nuisance and trespass were continuing or permanent, claims for damages for a permanent nuisance or permanent trespass would be barred by the three-year statute of limitations of Code of Civil Procedure, section 338, subdivision (b), (id. at pp. 1142, 1148, 281 Cal.Rptr. 827); (7) plaintiffs could amend their complaint to plead and prove facts showing a continuing nuisance or continuing trespass, which would not be barred by the statute of limitations (id. at pp. 1145, 1147, fn. 14, 1148, 281 Cal.Rptr. 827); (8) plaintiffs' counts for negligence, negligence per se, and strict liability, were barred by the statute of limitations, (id. at p. 1149, 281 Cal.Rptr. 827); (9) the counts for equitable indemnity and declaratory relief were not barred by the statute of limitations (id. at p. 1153, 281 Cal.Rptr. 827); and (10) the count for unlawful business practices failed to state a cause of action (id. at p. 1155, 281 Cal.Rptr. 827).
Undesignated statutory references are to the Code of Civil Procedure.
As is pertinent to this appeal, Mangini I explained the difference between a permanent and a continuing nuisance, and the critical reason for the distinction in this lawsuit, in that a permanent nuisance claim would be barred by the statute of limitations, whereas a continuing nuisance claim would not. We quoted from [31 Cal.Rptr.2d 699] Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866, as follows: " ‘ Two distinct classifications have emerged in nuisance law which determine the remedies available to injured parties and the applicable statute of limitations. On the one hand, permanent nuisances are of a type where " ‘ by one act a permanent injury is done, [and] damages are assessed once for all.’ " ... In such cases, plaintiffs ordinarily are required to bring one action for all past, present and future damage within three years after the permanent nuisance is erected.... Damages are not dependent upon any subsequent use of the property but are complete when the nuisance comes into existence....
As we noted in Mangini I, the application of the statute of limitations for trespass is the same as for nuisance and similarly depends on whether the trespass is continuing or permanent. (Mangini I, supra, 230 Cal.App.3d at p. 1148, 281 Cal.Rptr. 827.) For the sake of simplicity, our discussion refers to nuisance alone but applies equally to the trespass count.
" ‘ On the other hand, if a nuisance is a use which may be discontinued at any time, it is considered continuing in character and persons harmed by it may bring successive actions for damages until the nuisance is abated.... Recovery is limited, however, to actual injury suffered prior to commencement of each action. Prospective damages are unavailable.’ " (Mangini I, supra, 230 Cal.App.3d at pp. 1143-1144, 281 Cal.Rptr. 827, citing Baker, supra, 39 Cal.3d at pp. 868-869, 218 Cal.Rptr. 293, 705 P.2d 866.)
We stated in Mangini I that plaintiffs' action, construed as a claim for permanent nuisance, would be barred by the statute of limitations. (230 Cal.App.3d at pp. 1145, fn. 13, 1149-1153, 281 Cal.Rptr. 827.) Thus, if characterized as permanent, the nuisance was created no later than 1970, when Aerojet's lease ended and Aerojet stopped disposing of waste on the property. The complaint was filed in 1988, far more than three years after accrual of the cause of action.
In Mangini I, we considered whether plaintiffs could avoid the limitations bar by invoking the " discovery rule," under which accrual of a cause of action may be delayed in certain cases until the plaintiff discovers or could have discovered injury and cause through the exercise of reasonable diligence. (230 Cal.App.3d at pp. 1145, fn. 13, 1150, 281 Cal.Rptr. 827.)
We explained in Mangini I that whether the discovery rule applied at all was a matter of pleading, and that a plaintiff seeking to rely on the discovery rule has the burden to plead facts justifying delayed accrual, including the time and manner of discovery, and the circumstances excusing the delay. (230 Cal.App.3d at p. 1150, 281 Cal.Rptr. 827, citing G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 26, 122 Cal.Rptr. 218.) Plaintiffs had failed to do so. We considered whether plaintiffs could amend the complaint to invoke the discovery rule, based on factual assertions set forth in their appellate briefs (which constituted admissions). (230 Cal.App.3d at pp. 1151-1152, 281 Cal.Rptr. 827.) We concluded those facts would not suffice because they showed that " in 1984, more than three years before filing the complaint, plaintiffs knew the following facts: (1) the recorded lease gave notice that defendant had engaged in activities of a potentially hazardous nature on their land [citations]; (2) the Department of Justice investigated defendant's practices regarding disposal of hazardous waste in the area; and (3) defendant asked plaintiffs for permission to inspect their property. [¶ ] ... [T]he combination of these facts together establish as a matter of law that, when defendant contacted plaintiffs in 1984, plaintiffs had sufficient information to put them on notice of the possibility that defendant had dumped hazardous waste on their land.... [¶ ] ... [H]ad plaintiffs investigated in a timely fashion, they would have discovered the Department of Justice reports [disclosing Aerojet's disposal of hazardous waste and contamination of the property], which they admittedly received shortly after requesting them from the EPA [U.S. Environmental Protection Agency] in 1987. Plaintiffs are charged with knowledge of the information in those reports. ‘ [W]hen knowledge had by or imputed to plaintiff is such as to compel the conclusion that a prudent man would have suspected [the cause of action], the court may determine, as a matter of law, that there had been discovery.’ [Citation.]" (Mangini I, supra, 230 Cal.App.3d at pp. 1152-1153, 281 Cal.Rptr. 827.) Thus, any claim for permanent nuisance in this case would be barred by the statute of limitations. (Mangini I, supra, 230 Cal.App.3d at p. 1145, fn. 13, 281 Cal.Rptr. 827.)
Arguably, the evidence at trial made the discovery rule inapplicable in any event, by showing the prior owner's awareness of Aerojet's activities. We have no need to consider the issue.
[31 Cal.Rptr.2d 700] In Mangini I, plaintiffs sought to amend their complaint to allege a continuing nuisance by adding allegations that the contamination could be abated and that Aerojet has entered into a consent decree in federal court agreeing to clean up the property. (230 Cal.App.3d at p. 1145, 281 Cal.Rptr. 827.) We said: " In the decisions of our Supreme Court, the crucial distinction between a permanent and continuing nuisance is whether the nuisance may be discontinued or abated." (Id. at p. 1146, 281 Cal.Rptr. 827.) " [P]laintiffs' land may be subject to a continuing nuisance even though defendant's offensive conduct ended years ago. That is because the ‘ continuing’ nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur." (Id. at p. 1147, 281 Cal.Rptr. 827.) " Whether contamination by toxic waste is a permanent or continuing injury is ordinarily a question of fact turning on the nature and extent of the contamination. [Citations.] We therefore conclude plaintiffs should be allowed to amend their complaint to state their proposed facts so as to aver a theory of continuing nuisance and to seek damages caused them within three years of the date of filing the complaint. [Citations.]" (Id. at p. 1148, 281 Cal.Rptr. 827, fn. omitted.) We specified: " Needless to say, the continuing or permanent nature of the nuisance remains subject to proof at trial. Our task in reviewing the demurrer is to ascertain whether plaintiffs' proposed pleading should allow them to try to prove a continuing nuisance." (Id. at p. 1147, fn. 14, 281 Cal.Rptr. 827.) We further concluded the same applied to the trespass count. (Id. at p. 1148, 281 Cal.Rptr. 827.) We therefore reversed the judgment of dismissal and remanded the case to the trial court.
Plaintiffs thereafter amended their complaint to allege a continuing nuisance and a continuing trespass on a theory that the condition was abatable. The amended complaint alleged: " The conditions of nuisance that Aerojet created and maintained on the Subject Property are capable of elimination and Aerojet has entered into a federal consent decree regarding its obligation to do so. Nevertheless, Aerojet has failed to abate t[he] conditions of nuisance which are continuing." The trespass count incorporated the same allegation.
Aerojet filed an answer asserting the statute of limitations defense.
Plaintiffs ultimately dismissed without prejudice the claims for equitable indemnity and declaratory relief, and abandoned the public nuisance count. Plaintiffs proceeded to trial on two causes of action only— continuing private nuisance and continuing trespass— seeking damages for a reduction in the value of the use of the property within the limitations period.
In addition to the facts set forth above, the evidence adduced at trial showed as follows:
Testing of the property disclosed the existence of contaminants on the central 550-acre portion of the property, but the extent of contamination is unknown. Thus, Aerojet conducted testing on plaintiff's property twice, in connection with the government's lawsuit. First, in 1985, Aerojet tested various points comprising 125 acres spread throughout the 550-acre area in the center of the 2,400-acre total. These tests took surface soil samples down to a depth of three feet. As indicated, the tests disclosed TCE and various heavy metals in the soil and groundwater exceeding governmental regulatory standards.
No tests were performed beyond the 550-acre area where the waste disposal occurred. The 550-acre area is owned solely by Catherine Mangini. Plaintiffs' counsel admitted in closing argument that plaintiffs had failed to prove any contamination of the surrounding acreage in which the other plaintiffs held interests. The other plaintiffs hoped to rely on a theory that their property was stigmatized by its proximity to the contaminated land because TCE can migrate. We will conclude the evidence is insufficient to support the judgment even as to the 550-acre area. A fortiori, the claims of the other plaintiffs also fail.
In 1992, Aerojet returned and tested soil vapor (air pockets in the soil). The soil vapor probes detected toxic chemicals as deep as 10 feet at some test points but could go no deeper because they hit shale bedrock. [31 Cal.Rptr.2d 701] Depth of contamination matters, because TCE can migrate upward through fissures in bedrock or downward into groundwater. TCE was not detected in 1992 tests of water on the property.
The consent decree filed in the federal court action in 1988 requires Aerojet to complete a Remedial Investigation/Feasibility Study (RI/FS) to identify and evaluate the extent of public health or environment problems on specific property, including plaintiffs' property, and the cost of different remediation methods. Although Aerojet initially performed some technology screening, the evaluation process mandated by the consent decree has not been completed and is scheduled to be completed in 1998.
In connection with the federal court action, the governmental agencies are to prepare a health risk assessment to determine the risk of taking no action or determine acceptable cleanup levels for the site. The general " acceptable level" standards set by the governmental regulatory agencies are not dispositive but rather are benchmarks which may be altered in a particular case depending on the government's assessment of risk to public health and environment, and the cost of remediation. The governmental risk assessment has not yet been done.
Plaintiffs did not conduct their own investigation to determine the extent or abatability of the contamination. The uncertainty regarding the extent and abatability of the contamination was admitted by plaintiffs' witnesses and by plaintiffs' counsel in closing argument.
Thus, plaintiffs' witness, hydrogeologist John Lambie, testified about various methods of decontaminating land and water, such as a soil vapor extraction system to vacuum air from the soil and filter it through a treatment unit. When asked whether there was enough information about this site to determine what a proper cleanup would be, Lambie responded: " No. That's— that's really the— the heart of the situation is there's not enough known about the site yet to assess what remedial measures need to be done or can be done out there effectively. It may be that those alternatives I suggested are— are not going to get the job done and you'll have to dig and haul it off. We just don't know yet."
Lambie also pointed out that TCE was found at certain points in fissures in the bedrock 10 feet below the surface. This presents problems because remediation would require dynamite blasting through the bedrock. Yet it was not known how deep the contamination went. Lambie testified there were many uncertainties with respect to how much contamination was present. More information was needed as to " [h]ow much is there and how far it extends[,] how far it might go," and how vapors might migrate upward. Lambie also mentioned the acceptable level of contaminants had not been fully defined for the site.
Lambie testified remediation could cost far more than $20 million. This statement was based on the fact that it would cost $18 million to excavate 12.5 acres to a depth of three feet. This calculation was based on the witness's " assumption" that only 10 percent of the 125 tested acres would need to be remediated, and only to a depth of three feet. The witness agreed the figure would jump to $72 million if one assumed remediation would be needed on 20 percent of the tested acreage, to a depth of six feet. The witness also agreed the cost of remediation " is not determinable, but it could be an extremely large number."
Plaintiffs' counsel admitted the uncertainty to the jury in closing argument: " [N]obody really knows how much is there, where it is, what the chemicals are, or how much it's going to cost to abate the chemicals." " So I guess bottom line, if you ask yourself the question, how bad really is this site, the answer's got to be you just don't know."
The jury returned a special verdict, specifically finding (1) the chemicals left at the property by Aerojet constitute a nuisance and a trespass, and (2) the nuisance and trespass are abatable. The jury awarded plaintiffs a total of $13,231,880, apportioned to each plaintiff in accordance with his or her respective interest in the total acreage. The jury found Aerojet not liable for punitive damages. Judgment was entered. Aerojet moved for judgment notwithstanding the verdict [31 Cal.Rptr.2d 702] or for a new trial. More than 60 days later, the trial court filed its order purporting to deny the motion for judgment notwithstanding the verdict but grant the motion for new trial in part because the " jury's decision that the trespass and nuisance are abatable is contrary to the clear weight of the evidence."
As we discuss, post, the parties dispute whether the trial court lost jurisdiction to rule on the motions by failing timely to file its order.
In the face of plaintiffs' position that the order granting a new trial is void, Aerojet filed a notice of appeal from the judgment and from the denial of the motion for judgment notwithstanding the verdict. Plaintiffs filed a cross-appeal from the order purporting to grant a new trial, from the judgment insofar as it failed to award punitive damages, and from the trial court's failure to award costs and attorney fees.
DISCUSSION
We begin with Aerojet's motion for judgment notwithstanding the verdict. As will appear, resolution of that issue renders the other issues moot.
I. Standards of Review
The trial court denied Aerojet's motion for judgment notwithstanding the verdict on the merits, stating the motion could be granted only if there is no substantial conflict in the evidence. (§ 629; Shapiro v. Hu (1986) 188 Cal.App.3d 324, 334, 233 Cal.Rptr. 470.) The court concluded " substantial conflict exists in evidence regarding abatement." The court went on to discuss the evidence in its order granting a new trial, which concluded the " jury's decision that the trespass and nuisance are abatable is contrary to the clear weight of the evidence."
Although not raised by the parties, the trial court arguably lost jurisdiction to rule on the motion for judgment notwithstanding the verdict by failing timely to file its order.
The parties do dispute whether the trial court lost jurisdiction to grant the new trial motion because the court failed timely to file its order on the motion. Under section 660, a motion for new trial is deemed denied by operation of law if the trial court's order is not filed with the clerk within the prescribed time. Here, the order was not filed with the clerk within the prescribed time. In an effort to save the belated granting of a new trial in this case, Aerojet asks us to hold that an order by an assigned, retired judge residing outside the county is " filed" when deposited in the mail. Aerojet sees this as an equal protection issue penalizing litigants whose cases are tried by nonresident retired judges. We find it unnecessary to pursue this matter because we will conclude Aerojet's motion for judgment notwithstanding the verdict should have been granted and judgment entered in Aerojet's favor. Therefore, Aerojet does not need a new trial.
Thus, section 629 provides in part: " The power of the court to rule on a motion for judgment notwithstanding the verdict shall not extend beyond the last date upon which it has the power to rule on a motion for a new trial. If a motion for judgment notwithstanding the verdict is not determined before such date, the effect shall be a denial of such motion without further order of the court." The time for determining a motion for new trial is 60 days, under section 660. The motion is " determined" when the court's order is signed by the judge and filed with the clerk. (§ 660.)
Here, the order was filed with the clerk two days late. However, whether the motion is considered to be denied on its merits by the trial court or deemed denied by operation of law due to the untimely filing of the trial court's order, Aerojet having made the motion may obtain the desired result on appeal from the judgment. Thus, the merits of a motion denied by operation of law may be reviewed on appeal in the same manner as if expressly denied by the court. (Estate of Shepard (1963) 221 Cal.App.2d 70, 73, 34 Cal.Rptr. 212 [new trial motion].) Moreover, " when it appears that the motion for judgment notwithstanding the verdict should have been granted, [the appellate court shall] order judgment to be so entered on appeal from the judgment or from the order denying the motion for judgment notwithstanding the verdict." (§ 629.)
Here, Aerojet has appealed from both the judgment and the denial of the motion for judgment notwithstanding the verdict. A motion for judgment notwithstanding the [31 Cal.Rptr.2d 703] verdict should be granted " when, disregarding conflicting evidence, giving to the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines that there is no evidence of sufficient substantiality to support a verdict in favor of the nonmoving party. [Citations.]" (Shapiro v. Hu, supra, 188 Cal.App.3d at p. 334, 233 Cal.Rptr. 470.) Thus, the standard is similar to substantial evidence review of the judgment itself. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183 [appellate court's review begins and ends with determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the verdict].)
II. No Substantial Evidence Of Abatability
Aerojet contends the statute of limitations bars this action unless plaintiffs established a continuing rather than permanent nuisance, and plaintiffs failed to show substantial evidence of a continuing, i.e., abatable, nuisance. We agree that the judgment must be reversed because there is no substantial evidence of continuing nuisance.
We note Aerojet also contends there was no nuisance or trespass at all. We will assume for the sake of argument that the contamination was shown to constitute a nuisance and trespass.
Plaintiffs' theory of the case at trial was that they were pursuing a cause of action for a continuing nuisance based on Aerojet's continuing failure to remove contaminants it left on the property at the end of its lease. This theory of trial was consistent with and indeed necessitated by our decision in Mangini I that plaintiffs' action would be barred by the statute of limitations unless the nuisance was continuing rather than permanent.
The jury was instructed that there are two categories of nuisance— permanent and continuing, that plaintiffs were claiming a continuing nuisance, and that plaintiffs had the burden of proving by a preponderance of the evidence all of the facts necessary to establish a continuing (abatable) nuisance. The jury was also instructed that " abatable" meant that the contamination could be removed without unreasonable hardship and expense.
Thus, at trial, the question of whether any nuisance was a continuing nuisance was presented to the jury as an element of plaintiffs' cause of action for continuing nuisance. The question was not presented to the jury in the context of a " defense" or excuse by plaintiffs to avoid Aerojet's statute of limitations defense.
On appeal, no party complains of the manner in which the matter was submitted to the jury— as an element of plaintiffs' cause of action rather than as an exception to a statute of limitations defense. Thus, we need not consider whether there were any technical defects in the manner of presentation.
We turn now to the question whether there is substantial evidence of a continuing nuisance. " Whether contamination by toxic waste is a permanent or continuing injury ... turn[s] on the nature and extent of the contamination." (Mangini I, supra, 230 Cal.App.3d at p. 1148, 281 Cal.Rptr. 827.) " [T]he crucial test of the permanency of a trespass or nuisance is whether the trespass or nuisance can be discontinued or abated." (Ibid. )
In this case the evidence clearly showed that no one knows how bad the contamination is or how to remedy it— indicating an absence of substantial evidence of abatability. Plaintiffs, however, challenge the jury instructions, raising questions as to who had the burden of proof on this issue and what is the standard for abatability. We will therefore begin with the evidence, then turn to plaintiffs' contentions.
A. What The Evidence Showed
As reflected in our recitation of the facts, the evidence adduced at trial showed that contaminants were found but the extent of contamination and viability of remediation are unknown. In the words of plaintiffs' expert: " [T]he heart of the situation is there's not enough known about the site yet to assess what remedial measures need to be done or can be done out there effectively."
Additionally, both at trial and on appeal plaintiffs conceded the lack of evidence of the extent of contamination and what it would [31 Cal.Rptr.2d 704] take to decontaminate the property. The concessions appear in plaintiffs' closing argument to the jury and in their appellate brief, both of which may be taken as admissions against the party. (Mangini I, supra, 230 Cal.App.3d at p. 1152, 281 Cal.Rptr. 827; DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1019, fn. 3, 242 Cal.Rptr. 368.)
Thus, plaintiffs' counsel told the jury in closing argument:
" [N]obody really knows how much is there, where it is, what the chemicals are, or how much it's going to cost to abate the chemicals.
" .
" So bottom line, we just don't know exactly how much is there and cannot say exactly what it's going to cost to clean up.
" .
" So I guess bottom line, if you ask yourself the question, how bad really is this site, the answer's got to be you just don't know."
On appeal, plaintiffs again concede there was no evidence of the extent of the contamination. Thus, they state in their appellate brief that " the total volume of soil requiring remediation has not yet been determined...." B. Who Had The Burden To Prove Abatability
See footnote *, ante.
C. Meaning of " Abatable"
The next question is: what does " abatable" mean?
The jury was instructed that plaintiffs must prove " that whatever they claim constitutes the nuisance is actually and practically abatable by reasonable means and without unreasonable expense. Theoretically, anything can be removed. But an abatable [ ] nuisance is one which as a practical matter considering hardship and cost can be removed."
On appeal, plaintiffs challenge the jury instructions, contending abatement does not necessarily mean complete elimination of the condition causing the nuisance but can mean a lessening of the condition. Plaintiffs suggest they would be content with a cleanup level that is less than total but satisfactory to the regulatory agencies. (Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 15 Cal.Rptr.2d 796 [reduction to government cleanup standards can constitute abatement].)
We accept the general proposition that something less than total decontamination may suffice to show abatability. However, there is no evidence in this case of what that might be. Thus, plaintiffs did not submit evidence of cleanup levels acceptable to or ordered by the regulatory agencies for this property. The evidence showed government standards of acceptable levels of toxic chemicals are benchmarks subject to fluctuation depending upon the government's assessment of a particular site's risk to the public health and environment and the cost of remediation. On appeal, plaintiffs admit " EPA has not yet determined the cleanup levels for this site...." The governmental investigation has not yet reached the point where a health risk assessment can be performed to determine acceptable cleanup levels for the particular site. Thus, plaintiffs cannot rely on any regulatory agency as setting the standard for abatement in this case.
Plaintiffs failed to show abatability at any level.
Plaintiffs contend they met their burden by showing (1) the property is contaminated and (2) the technology exists to decontaminate property. This ignores Mangini I, which said the extent of contamination was a critical test for finding a continuing nuisance. (230 Cal.App.3d at p. 1148, 281 Cal.Rptr. 827.) Moreover, we do not agree that mere technological feasibility proves abatability.
Plaintiffs argue it is burdensome to require them to prove the exact cost for removing the contamination. Plaintiffs claim that standard was presented in the jury instructions, over their objection. However, the jurors were merely instructed that plaintiffs had to prove the condition could be removed " by reasonable means and without unreasonable expense" and that " hardship and cost" were factors. We see no reason why an estimate would not suffice under the instructions and [31 Cal.Rptr.2d 705] under the law. Thus, plaintiffs have not shown that they were held to an impossible standard. Moreover, since plaintiffs did not come anywhere close to showing even an estimate of the cost of abatement, this is a nonissue.
Plaintiffs complain about having to show that abatement can be done at a reasonable cost. They dispute Aerojet's reliance on the definition of abatability found in section 839 of the Restatement Second of Torts, which addresses liability of a possessor of land who fails to abate an artificial condition constituting a nuisance on the land in his possession. Comment f to that section provides: " By an ‘ abatable physical condition’ is meant one that reasonable persons would regard as being susceptible of abatement by reasonable means. The law does not require the unreasonable or fantastic, and therefore even though it might conceivably be possible to abate a particular condition, it is not ‘ abatable’ within the meaning of this Section unless its abatement can be accomplished without unreasonable hardship or expense." Plaintiffs contend section 839 of the Restatement Second of Torts applies only to a possessor of land who did not cause the condition, unlike the situation in the present case.
We need not address plaintiffs' argument because we find sufficient expression of a similar standard in California case law. Thus, our Supreme Court in explaining continuing nuisance has said: " A more difficult problem is presented [ ] if the defendant is not privileged to continue the nuisance or trespass but its abatement is impractical .... [¶ ] ... If the defendant is not privileged to continue the nuisance and is able to abate it, he cannot complain if the plaintiff elects to bring successive actions as damages accrue until abatement takes place. [Citations.] On the other hand, if it appears improbable as a practical matter that the nuisance can or will be abated, the plaintiff should not be left to the troublesome remedy of successive actions. [Citations.]" (Spaulding v. Cameron (1952) 38 Cal.2d 265, 268, 239 P.2d 625, italics added.) Thus, our Supreme Court has at least implicitly recognized that " abatable" means reasonably abatable. Additionally, in Baker, supra, 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866, the minority opinion noted that the rule followed in this and other states is that the test for continuing nuisance is " whether the nuisance is reasonably abatable." (Id. at p. 874, 218 Cal.Rptr. 293, 705 P.2d 866, conc. and dis. opn. of Mosk, J.)
The nuisance in Spaulding was inundation of the plaintiff's home with mud resulting from landfill created by the defendant's leveling operations on his nearby land. (38 Cal.2d at p. 266, 239 P.2d 625.) Following a bench trial, the trial court improperly awarded relief for both permanent and continuing nuisance. (Ibid.) No statute of limitations problem was raised in Spaulding. It was the plaintiff who argued the nuisance was permanent, in order to recover greater damages for full diminution in market value of the property. (Id. at pp. 269-270, 239 P.2d 625.) The plaintiff cited evidence that there was little or nothing the defendant could do to abate the nuisance. (Ibid.) The defendant argued the condition was abatable, citing evidence that he could take corrective measures that would prevent further mud flows. (Ibid.) Because the plaintiff could not obtain relief for both permanent and continuing nuisance, and because the issue was not determinable as a matter of law, the Supreme Court reversed the judgment. (Id. at p. 270, 239 P.2d 625.)
This principle was discussed in Capogeannis v. Superior Court, supra, 12 Cal.App.4th 668, 15 Cal.Rptr.2d 796, where the court explained Spaulding as follows: " [I]t would be a rare case in which an alleged nuisance could not be abated were countervailing considerations (such as expense, time, and legitimate competing interests) disregarded. Thus, for example, in a strictly literal sense even a nuisance represented by an encroaching building or an underlying public utility pipeline might be discontinued or abated, ‘ at any time,’ by tearing down the building or digging up the pipeline. But as Spaulding makes clear, it was for just such situations that the concept of permanent nuisance, as an exception to the preexisting rule that all nuisances should be treated as abatable and thus continuing, was developed: Regardless of literal abatability, where as a practical matter either abatement or successive lawsuits would be inappropriate or unfair then the nuisance may be regarded as permanent and the plaintiff relegated to a single lawsuit, subject to a single limitation period, for all past and anticipated future harms.... Because a literal answer to the question whether a particular nuisance can be discontinued or abated will not invariably serve the purposes [31 Cal.Rptr.2d 706] of the rules as discussed in Spaulding, the discontinued-or-abated rubric should be regarded as no more than a convenient shorthand for the fundamental considerations Spaulding outlined." (Capogeannis, supra, 12 Cal.App.4th at p. 678, 15 Cal.Rptr.2d 796, original italics.)
Capogeannis noted other courts have implicitly recognized this " practical qualification of a too-literal abatability rule." (Id. 12 Cal.App.4th at p. 678, 15 Cal.Rptr.2d 796.) Thus, the Second District held in Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1 Cal.Rptr.2d 480, that the voluntary removal of a nuisance (underground telephone lines) by a defendant before trial did not in and of itself render erroneous the trial court's judgment that the telephone facilities were a permanent nuisance. (Id. at pp. 1486-1487, 1 Cal.Rptr.2d 480.) The facilities had the characteristics of a permanent nuisance— they were intentionally placed to provide service to the public indefinitely (for at least 100 years); it required considerable effort and heavy equipment to install and remove the facilities, which were 10 feet underground; and the defendant as a public entity might have been able to keep the facilities on the property by paying just compensation. (Id. at p. 1486, 1 Cal.Rptr.2d 480.) Spar accordingly affirmed the trial court's judgment that the nuisance was permanent. (Id. at p. 1488, 1 Cal.Rptr.2d 480.)
Plaintiffs complain that none of the various cited cases refers to the economic cost of cleanup as a litmus test for abatability. However, cost has been placed in issue in this case, and we believe cost is an appropriate factor under the cases we have discussed.
Plaintiffs point out that Baker, supra, 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866, considered airport noise to be abatable without considering the cost of abatement. In Baker, homeowners brought an action against the operator of a nearby airport, alleging nuisance caused by noise, smoke and vibrations. The trial court sustained the defendant's demurrer on statute of limitations grounds, ruling the nuisance was a permanent nuisance as a matter of law because airport operations are subject to federal law and may not be enjoined by state courts. (Id. at p. 868, 218 Cal.Rptr. 293, 705 P.2d 866.) The Supreme Court reversed, concluding federal preemption of local regulation of airport noise is not absolute. (Id. at pp. 872-873, 218 Cal.Rptr. 293, 705 P.2d 866.) Federal law did not preempt local responsibility for airport noise control, and the defendant had a statutory duty under state law to reduce airport noise. (Ibid.) Although federal law precluding interference with flight patterns and schedules added an element of permanency to an otherwise continuing problem, it did not mandate that the overall nuisance was a permanent one. (Ibid.) Thus, Baker concluded the plaintiffs could elect to treat the airport noise as a continuing nuisance. (Ibid. )
It is true Baker referred to the nuisance as a continuing nuisance without regard for the cost of abatement. However, in Mangini I, we said we did not read Baker as deviating from the rule that abatability determines the character of the nuisance, because in Baker the ability to discontinue the nuisance was implied in the court's discussion that the airport was obligated by statute to curb noise pollution. (Mangini I, supra, 230 Cal.App.3d at p. 1146, 281 Cal.Rptr. 827.) We also pointed out the debate in Baker related to the question whether injunctive relief must be available in order for a nuisance to be abatable. (Mangini I, supra, 230 Cal.App.3d at p. 1146, 281 Cal.Rptr. 827.) We said no such issue was present in this case. (Ibid.) Here, the abatability of the contamination presented a question of fact. (Id. at p. 1148, 281 Cal.Rptr. 827.) Where abatability is a question of fact, cost is an appropriate factor to consider. Thus, Baker does not stand for the proposition that the contamination in this case was abatable regardless of the cost of decontamination.
Plaintiffs contend " a condition which is unlawful cannot be considered permanent." Their cited authorities do not support this proposition. Thus, plaintiffs claim Baker, supra, 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866, held that airport noise pollution was a continuing nuisance as a matter of law because the defendant was expressly required by statute to make reasonable efforts to curb noise pollution at the airport. However, the Supreme Court there did not conclude the noise was a continuing nuisance [31 Cal.Rptr.2d 707] because it was unlawful. Rather, the Court used the statute to defeat the defendant's claim that its conduct was absolutely privileged. (Id. at p. 873, 218 Cal.Rptr. 293, 705 P.2d 866.)
Plaintiffs next claim that Capogeannis v. Superior Court, supra, 12 Cal.App.4th 668, 15 Cal.Rptr.2d 796, held that contamination exceeding governmental standards must be deemed a continuing nuisance. Not so. The court there, in rejecting an argument that abatement means 100 percent decontamination, said: " We are satisfied to presume that cleanup standards set by responsible public agencies sufficiently reflect expert appraisal of the best that can be done to abate contamination in particular cases." (Id. at p. 683, 15 Cal.Rptr.2d 796.) The court did not suggest that the existence of contamination at levels above the governmental standards must be classified as a continuing nuisance. To the contrary, the court acknowledged the issue presented a factual question. (Ibid. )
Plaintiffs also cite Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 288 P.2d 507, which said that since the defendant's ginning mill was lawfully operated in a location properly zoned, it was not subject to injunctive relief to abate it, and plaintiffs could treat it as a permanent nuisance. (Id. at p. 271, 288 P.2d 507.) Kornoff does not stand for the proposition that an unlawful condition cannot be considered permanent. Finally, plaintiffs cite Tamalunis v. City of Georgetown (1989) 185 Ill.App.3d 173, 134 Ill.Dec. 223, 542 N.E.2d 402, for the supposed proposition that a nuisance may be permanent only if it is a lawful one. However, what the court there said was that a " permanent nuisance is one characterized as continuing indefinitely and the structure constituting the nuisance is a lawful one.... [¶ ] A temporary nuisance is one which is occasional, intermittent, or recurrent and is remediable, removable, or abatable." (Id., 134 Ill.Dec. at p. 230, 542 N.E.2d at p. 409.) That the court would not require lawfulness as a prerequisite to permanency is apparent from the court's further statement that the Illinois Supreme Court has held illegal dumping of refuse to be an abatable nuisance. (Id., 134 Ill.Dec. at p. 231, 542 N.E.2d at p. 410.) Thus, plaintiffs have failed to persuade us that " unlawfulness," i.e., contamination levels exceeding government standards, automatically establishes a nuisance as a continuing nuisance, particularly where, as here, a plaintiff does not seek abatement but only money damages.
We conclude " abatable" means that the nuisance can be remedied at a reasonable cost by reasonable means.
As we have recounted, plaintiffs freely admit the absence of evidence to show the extent of the contamination.
The result of the uncertainty regarding the extent of contamination is that it is uncertain whether the nuisance is abatable. Thus, we do not know how much land or water has to be decontaminated. We do not know how deep the decontamination would have to go. We have no idea how much it would cost but know only that it would cost unascertainable millions of dollars.
On this record, there is no substantial evidence that the nuisance is abatable.
D. " Varying Impact" Theory Is Not At Issue
Plaintiffs suggest the contamination is a continuing nuisance because its impact varies over time.
In Mangini I, we acknowledged the recent case of Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 234, 251 Cal.Rptr. 49, which stated that the salient feature of a continuing nuisance is that its impact may vary over time. (Mangini I, supra, 230 Cal.App.3d at p. 1147, 281 Cal.Rptr. 827.) We continued: " Assuming this test correctly states the law, plaintiffs suggest they can amend their complaint to satisfy the test. Thus, plaintiffs aver they ‘ are prepared to prove at trial that the contamination has migrated or spread on the property continuously since it was initially dumped, and that therefore, its impact has varied over time.’ Presumably, plaintiffs are prepared to amend their complaint along these lines, thereby satisfying Field-Escandon 's test." (Mangini I, supra, 230 Cal.App.3d at p. 1147, 281 Cal.Rptr. 827.)
However, plaintiffs did not amend their complaint along those lines but instead alleged and proceeded to trial on a theory of [31 Cal.Rptr.2d 708] abatability as the sole basis for finding a continuing nuisance. On appeal, plaintiffs fail to cite to the record to show that the varying impact test was presented to the jury, and our review of the record discloses no jury instruction or argument presenting this test to the jury as a basis for finding a continuing nuisance. We thus conclude plaintiffs have waived any theory of varying impact as a basis for finding a continuing nuisance. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874, 242 Cal.Rptr. 184 [party cannot change his theory of the case on appeal].)
In their petition for rehearing, plaintiffs assert they did amend their complaint to plead a theory of varying impact. They point to the following allegations in their amended complaint:
We note plaintiffs do not contend the varying impact theory presents only a question of law on facts appearing in the record, so as to permit the theory to be urged for the first time on appeal. We are aware that there was evidence at trial regarding migration of the chemicals on the property. However, in their appellate brief plaintiffs refer to this evidence only in connection with their argument on the distinct question of damages, arguing that the plaintiffs other than Catherine Mangini, i.e., the plaintiffs whose property was not tested, should be allowed to recover because contaminants migrate. The question of abatability is distinct from the question of damages. (Mangini I, supra, 230 Cal.App.3d 1125, 281 Cal.Rptr. 827.) Thus, plaintiffs have waived any argument that the varying impact theory could be decided as a matter of law.
CONCLUSION
We conclude that on this record there is no substantial evidence of a continuing nuisance because there is no substantial evidence that the contamination on plaintiffs' property is reasonably abatable.
The same result applies to the trespass count. (See fn. 3, ante. )
Establishment of a continuing nuisance or trespass was a necessary condition of plaintiffs' theory of damages. Thus, here plaintiffs sought and were awarded damages for loss of use of the property during the three years prior to filing of the complaint. This is a specie of damages available only for continuing nuisance. (See Baker, supra, 39 Cal.3d at pp. 868-869, 218 Cal.Rptr. 293, 705 P.2d 866 [" [I]f a nuisance is a use which may be discontinued at any time, it is considered continuing in character and persons harmed by it may bring successive actions for damages until the nuisance is abated.... Recovery is limited, however, to actual injury suffered prior to commencement of each action. Prospective damages are unavailable." ]; see also Mangini I, supra, 230 Cal.App.3d at p. 1144, 281 Cal.Rptr. 827.) Since plaintiffs failed to prove a continuing nuisance, damages awarded on that theory may not stand. Accordingly, the trial court erred in failing to grant Aerojet's motion for judgment notwithstanding the verdict, and Aerojet is entitled to entry of judgment in its favor.
In view of our conclusion, we need not address Aerojet's alternate contentions that (1) plaintiffs' action is barred by consent and/or a release by the prior owner who leased the land to Aerojet; (2) there never was a nuisance or trespass; (3) the damage award is unsupported by substantial evidence and results from erroneously-admitted evidence and erroneous jury instructions; and (4) the trial court erred in denying the jury's request to rehear closing arguments. We also need not decide plaintiffs' contentions on cross-appeal that (1) they are entitled to a new trial limited to punitive damages due to instructional error, and (2) the trial court erred in denying plaintiffs their costs and attorney fees. [31 Cal.Rptr.2d 709] DISPOSITION
The judgment is reversed and the matter remanded with directions to the trial court to enter judgment in favor of Aerojet. Aerojet shall recover its costs on appeal.
PUGLIA, P.J., and BLEASE, J., concur.
James H. Cavitt was named as a defendant in the original complaint but was not a party to the first appeal and was not named as a defendant in the amended complaint which proceeded to trial. He is not a party to this appeal.
Section 338, subdivision (b), sets forth a three-year limitations period for an " action for trespass upon or injury to real property."
" [t]he hazardous substances persist on the Subject Property and are continually being released into the soil, air, and groundwater in, around and under the Subject Property...."
" Aerojet's maintenance of hazardous substances that are continually released at the Subject Property constitutes a continuing nuisance."
" Aerojet ... has allow[ed] such substances to remain continually on the Subject Property and to be continually released into the environment...."
But the fact that hazardous substances are continually released does not mean that their impact has varied appreciably over time. A water fountain may run continuously, but its impact remains constant.