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PILLSBURY WINTHROP SHAW PITTMAN LLP
MICHAEL J. FINNEGAN (S.B. #137409)
michael.finnegan@pillsburylaw.com
MARK E. ELLIOTT (S.B. #157759)
mark.elliott@pillsburylaw.com
725 South Figueroa Street
Los Angeles, California 90017-5406
Telephone: (213) 488-7100
Facsimile: (213) 629-1033
Attorneys for Defendant
TORRANCE REFINING COMPANY LLC
M. RANDALL OPPENHEIMER (S.B. #77649)
roppenheimer@omm.com
DAWN SESTITO (S.B. #214011)
dsestito@omm.com
O’MELVENY & MYERS LLP
400 South Hope Street
Los Angeles, California 90071-2899
Telephone: (213) 430-6000
Facsimile: (213) 430-6407
Attorneys for Defendant
EXXON MOBIL CORPORATION
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
ARNOLD GOLDSTEIN, et al.,
Plaintiffs,
v.
EXXON MOBIL CORPORATION, et
al.,
Defendants.
Case No. 2:17-cv-02477-DSF (SKx)
EXXON MOBIL CORPORATION
AND TORRANCE REFINING
COMPANY LLC’S OPPOSITION
TO PLAINTIFFS’ MOTION TO
CERTIFY CLASS
Judge: Dale S. Fischer
Dept. 7D
Date: February 25, 2019
Time: 1:30 p.m.
Second Amended Complaint Filed:
July 9, 2018
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TABLE OF CONTENTS
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I. INTRODUCTION ........................................................................................... 1
II. FACTUAL BACKGROUND ......................................................................... 2
A. Procedural History ................................................................................ 2
B. The Refinery ......................................................................................... 2
C. 2015 Incident ......................................................................................... 3
D. Soil and Groundwater Contamination .................................................. 3
III. ARGUMENT .................................................................................................. 4
A. Plaintiffs Must Demonstrate Compliance With Rule 23 ...................... 4
B. Plaintiffs Have Not Demonstrated Commonality, Typicality,
Predominance, or Superiority ............................................................... 5
1. Legal Standards .......................................................................... 5
2. Plaintiffs’ Personal Injury Claims Cannot Be Certified ............. 6
a. Causation Requires an Individualized
Determination That Predominates Over Common
Issues ................................................................................ 6
b. Plaintiffs’ Request for Medical Monitoring Raises
Additional Individual Issues ............................................. 9
3. Plaintiffs’ Claims Predicated On Interference With
Property Rights Cannot Be Certified ........................................ 11
a. Nuisance Claims Necessarily Require
Individualized Determinations to Establish
Liability .......................................................................... 11
b. Causation Requires an Individualized
Determination That Predominates Over Common
Issues .............................................................................. 14
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c. No Evidence Supports a Diminution in Property
Value Remedy on a Classwide Basis ............................. 16
4. Individual Statutes of Limitations Issues Predominate ............ 18
5. Plaintiffs Cannot Meet the Superiority Requirement of
Rule 23(b)(3) ............................................................................ 19
C. Plaintiffs’ Counsel Will Not Adequately Represent The Class .......... 20
D. Plaintiffs Have Not Demonstrated Numerosity .................................. 22
E. Rule 23(b)(2) Is Not Applicable ......................................................... 22
F. Rule 23(c)(4) Cannot Be Applied to Correct Class Deficiencies ....... 24
IV. CONCLUSION ............................................................................................. 25
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CASES
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997) ................................................................................ 6, 8, 9, 21
Arcade Water Dist. v. U.S.,
940 F.2d 1265 (9th Cir. 1991) ............................................................................. 16
Avila v. Willits Envtl. Remediation Tr.,
633 F.3d 828 (9th Cir. 2011) ................................................................................. 7
Baker v. Burbank-Glendale-Pasadena Airport Auth.,
39 Cal. 3d 862 (1985) .......................................................................................... 16
Baker v. Chevron, USA, Inc.,
2009 WL 3698419 (S.D. Ohio Nov. 4, 2009) ..................................................... 15
Barraza v. C.R. Bard, Inc.,
322 F.R.D. 369 (D. Ariz. 2017) ..................................................................... 10, 24
Brooks v. Darling Int’l, Inc.,
2017 WL 1198542 (E.D. Cal. 2017) ................................................................... 19
Cholakyan v. Mercedes-Benz, USA, LLC,
281 F.R.D. 534 (C.D. Cal. 2012) ........................................................................ 24
City of San Jose v. Superior Court,
12 Cal. 3d 447 (1974) .................................................................................... 12, 13
Cochran v. Oxy Vinyls LP,
2008 WL 4146383 (W.D. Ky. Sept. 2, 2008) ..................................................... 12
Comcast Corp. v. Behrend,
569 U.S. 27 (2013) .................................................................................... 5, 17, 18
Dep’t of Fish & Game v. Superior Court,
197 Cal. App. 4th 1323 (2011) ............................................................................ 14
Ebert v. General Mills, Inc.,
823 F.3d 472 (8th Cir. 2016) ............................................................................... 16
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Ellis v. Costco Wholesale Corp.,
657 F.3d 970 (9th Cir. 2011) ................................................................................. 4
Erica P. John Fund, Inc. v. Halliburton Co.,
563 U.S. 804 (2011) .............................................................................................. 6
Evans v. IAC/Interactive Corp.,
244 F.R.D. 568 (C.D. Cal. 2007) ........................................................................ 21
Exxon Shipping Co. v. Baker,
554 U.S. 471 (2008) ............................................................................................ 11
Faulk v. Sears Roebuck and Co.,
2013 WL 1703378 (N.D. Cal. Apr. 19, 2013) .................................................... 20
Frieman v. San Rafael Rock Quarry,
116 Cal. App. 4th 29 (2004) ................................................................................ 14
Gates v. Rohm & Haas Co.,
655 F.3d 255 (3d Cir. 2011) ................................................................................ 11
Gehr v. Baker Hughes Oil Field Operations, Inc.,
165 Cal. App. 4th 660 (2008) .............................................................................. 16
Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147 (1982) .............................................................................................. 5
Haley v. Medtronic, Inc.,
169 F.R.D. 643 (C.D. Cal. 1996) ........................................................................ 25
Hanon v. Dataproducts Corp.,
976 F.2d 497 (9th Cir. 1992) ................................................................................. 5
In re Citimortgage, Inc. Home Affordable Modification Program
(“HAMP”) Litig.,
2013 WL 8844095 (C.D. Cal. Oct. 7, 2013) ....................................................... 20
In re Mego Fin. Corp. Sec. Litig.,
213 F.3d 454 (9th Cir. 2000) ............................................................................... 21
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In re N. Dist. of Cal., Dalkon Shield IUD Prod. Liab. Litig.,
693 F.2d 847 (9th Cir. 1982), abrogated on other grounds .......................... 18, 25
In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on
April 20, 2010,
910 F. Supp. 2d 891 (E.D. La. 2012) .................................................................. 11
In re Phenylpropanolamine (PPA) Prods. Liab. Litig.,
208 F.R.D. 625 (W.D. Wash. 2002) ...................................................................... 8
In re SFPP Right-of-Way Claims,
2017 WL 2378363 (C.D. Cal. May 23, 2017) ..................................................... 25
In re St. Jude Med., Inc.,
425 F.3d 1116 (8th Cir. 2008) ............................................................................. 10
Jolly v. Eli Lilly & Co.,
44 Cal. 3d 1103 (1988) ........................................................................................ 18
Kingsbury v. U.S. Greenfiber, LLC,
2013 WL 12114077 (C.D. Cal. Nov. 5, 2013) .................................................... 17
Lewallen v. Medtronic USA, Inc.,
2002 WL 31300899 (N.D. Cal. Aug. 28, 2002) .................................................. 10
Lockheed Martin Corp. v. Super. Court,
29 Cal. 4th 1096 (2003) ....................................................................................... 10
Mangini v. Aerojet-General Corp.,
230 Cal. App. 3d 1125 (1991) ....................................................................... 15, 16
O’Connor v. Boeing N. Am. Inc.,
197 F.R.D. 404 (C.D. Cal. 2000) .............................................................. 6, 11, 19
Orange Cty. Water Dist. v. Sabic Innovative Plastics US, LLC,
14 Cal. App. 5th 343 (2017) ................................................................................ 15
Parko v. Shell Oil Co.,
739 F.3d 1083 (7th Cir. 2014) ............................................................................. 17
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Potter v. Firestone Tire & Rubber Co.,
6 Cal. 4th 965 (1993) ............................................................................................. 9
San Diego Gas & Elec. Co. v. Superior Court,
13 Cal. 4th 893 (1996) ......................................................................................... 12
SeaBright Ins. Co. v. U.S. Airways, Inc.,
52 Cal. 4th 590 (2011) ........................................................................................... 9
Simpson v. Cal. Pizza Kitchen, Inc.,
989 F. Supp. 2d 1015 (S.D. Cal. 2013) ............................................................... 14
Smith v. Lockheed Propulsion Co.,
247 Cal. App. 2d 774 (1967) ................................................................................. 6
Staples v. Hoefke,
189 Cal. App. 3d 1397 (1987) ............................................................................. 14
Tribeca Cos., LLC v. First American Title Ins. Co.,
239 Cal. App. 4th 1088 (2015) .............................................................................. 6
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) .................................................................................... 1, 5, 23
Williamson v. Geisler,
2013 WL 12087188 (C.D. Cal. Sept. 19, 2013) .................................................. 22
Wilson v. Inerlake Steel Co.,
32 Cal. 3d 229 (1982) .......................................................................................... 15
Wolin v. Jaguar Land Rover N. Am., LLC,
617 F.3d 1168 (9th Cir. 2010) ............................................................................. 19
Yamada v. Nobel Biocare Holding AG,
275 F.R.D. 573 (C.D. Cal. 2011) ........................................................................ 23
Zinser v. Accufix Research Inst., Inc.,
253 F.3d 1180 (9th Cir. 2001) ................................................................... 6, 20, 24
STATUTES
Cal. Civ. Code § 3493 ............................................................................................... 14
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Cal. Civ. Proc. Code § 335.1 .................................................................................... 18
Cal. Civ. Proc. Code § 338 ....................................................................................... 18
Cal. Lab. Code § 3600 ................................................................................................ 9
Cal. Lab. Code § 3602 ................................................................................................ 9
OTHER AUTHORITIES
Fed. R. Civ. P. 23(b)(3) Advisory Committee Note (1996) ....................................... 6
Manual for Complex Litigation §10.123 .................................................................. 20
RULES
Fed. R. Civ. P. 23 ........................................................................................................ 4
Fed. R. Civ. P. 23(a) ................................................................................................... 5
Fed. R. Civ. P. 23(a)(1)............................................................................................. 22
Fed. R. Civ. P. 23(b)(2) ............................................................................................ 23
Fed. R. Civ. P. 23(b)(3) ...................................................................................... 19, 20
Fed. R. Civ. P. 23(g)(1)(A) ....................................................................................... 21
Fed. R. Civ. P. 23(g)(1)(B) ....................................................................................... 21
Fed. R. Civ. P. 23(g)(4) ............................................................................................ 20
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I. INTRODUCTION
From the outset, this case has been an ill-conceived attempt to bundle
disparate claims into one overly-broad class action. Ignoring controlling
authority—Wal-Mart v. Dukes, Amchem v. Windsor, and City of San Jose v.
Superior Court—Plaintiffs attempt certification for claims not typically litigated on
a class basis and on behalf of individuals who could not be more different. “Rule 23
does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 350 (2011). Class certification is appropriate only if Plaintiffs have
affirmatively demonstrated a means to adjudicate claims on a classwide basis using
common proof. Plaintiffs have made no such showing. To determine whether an
individual suffered personal injury or is entitled to medical monitoring, the Court
will have to assess (among other things) individual causation, including lengthy
medical histories. To determine if a nuisance exists necessitates assessment of
(among other things) whether a person can hear, see, or smell the Refinery from her
property and how that impacts the use of her property, if at all. These and other
individualized issues, including the liability of Defendants, cannot be determined
on a classwide basis. They require individual assessment and individual proof.
Plaintiffs’ own testimony makes this abundantly clear.
Arnold Goldstein has lived in Torrance for more than 30 years, is located
miles from any groundwater plume, and claims that he developed asthma after a
Refinery incident on February 18, 2015 (even though his medical records
demonstrate otherwise). Gisella La Bella (who works in Torrance but lives
elsewhere) claims not asthma, but damage to her larynx from the same
incident. Hany Youssef lives near the plume (which was disclosed to him by his
realtor in 2012) and claims no personal injury from the incident, plume, or
otherwise. Some putative class members, like Kevin Heard and Kit Clark, assert
that Refinery emissions have made them ill or prevent them from enjoying their
home. Others like Victoria Heard have no such concerns. The only common
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element in these claims is the Torrance Refinery. But that is not enough. Given the
Plaintiffs’ individualized facts, claims, and alleged injuries, class certification is not
appropriate, and the motion should be denied.
II. FACTUAL BACKGROUND
A. Procedural History
This putative class action was filed in February 2017 and later removed to
this Court, asserting claims for negligence, trespass, public nuisance, private
nuisance, and ultrahazardous activity relating to air emissions from the Refinery.
Dkt. 1. Plaintiffs added allegations and a named Plaintiff relating to alleged
groundwater and soil contamination near the Refinery’s southeastern border. Dkt.
115. The putative class is seeking to recover for alleged personal injury and
interference with property rights and seeking, among other things, damages or
abatement in the form of medical monitoring, environmental monitoring, and
diminution in property values. The class was originally defined to include
individuals who live or work within a three-mile radius of the Refinery, but the
certification motion identifies the following four subclasses: (1) soil and
groundwater contamination; (2) operational emissions; (3) explosion debris from
February 18; and (4) physical exposure. Plaintiffs’ request to supplement this
motion was denied. Dkt. 90. As set forth below, class certification is inappropriate.
B. The Refinery
The Torrance Refinery was built in 1929. Declaration of Mark E. Elliott in
Opposition to Plaintiffs’ Motion for Class Certification (“ME Decl.”) ¶3. The
Refinery produces about 1.8 billion gallons of gasoline per year (approximately ten
percent of California’s gasoline demand). Id. Refineries in California are subject to
complex regulatory and permitting requirements under federal, state, and local
law—the strictest regulations in the nation. These multiple levels of regulation are
directed at the prevention and minimization of, and appropriate response to,
unpermitted and/or unregulated releases of pollutants. The Refinery operates under
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permits governing operational air emissions issued by the South Coast Air Quality
Management District (“SCAQMD”), the local air pollution control agency, as well
as additional constraints regarding emissions of certain toxins. Id.
C. 2015 Incident
At approximately 8:50 AM on February 18, 2015, the Refinery experienced
an over-pressurization in the electrostatic precipitator of the Fluid Catalytic
Cracking Unit. The incident caused a release of spent catalyst and hydrocarbons
and visible flaring and smoke. SCAQMD conducted testing on the air and
substances released and concluded that “hydrocarbons, PM, and sulfur compound
levels were consistent with level [sic] that are typically seen in outdoor air” and that
fallout samples in the community contained no dangerous levels of harmful
substances. See ME Decl. ¶5, Ex. 11. SCAQMD later confirmed that no samples
collected outside the Refinery contained asbestos. Id.
D. Soil and Groundwater Contamination1
Since the mid-1980s, the Refinery has been investigating and responding to
soil and groundwater contamination under the direction of the California Regional
Water Quality Control Board (“Regional Board”), the agency responsible for
investigating such matters.2 ME Decl. ¶4, Exs. 1–4. Beginning in 1988, various
Cleanup and Abatement Orders have required the Refinery to monitor and sample
groundwater and to clean up and abate groundwater pollution. Id., Exs. 2–4. The
cleanup and abatement programs continue to this day.3 Id., Ex. 6. Soil vapor
extraction began in 2015 to mitigate the benzene and methane soil vapor plume. Id.
1 The concurrently-filed ME Decl. provides additional background information.
2 Local residents do not consume, use, or access the groundwater below the proposed class
areas as a source of drinking water. ME Decl. ¶4, Ex. 5; see also Dkt. 85-10, ¶10.
3 The Regional Board’s regulatory oversight encompasses the environmental abatement
injunctive relief sought in the SAC, including contaminants alleged (benzene, gasoline,
methane, and petroleum products) (Dkt. 115 ¶¶26–29, 60–61, 120); phases alleged (soil,
groundwater, soil vapor, and indoor air); surface water (id. ¶¶26–30, 36, 50, 57–58, 61,
120–121); and “step out” investigations and monitoring well installations (id. ¶120).
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A work plan approved by the Regional Board in July 2018 includes additional
subsurface investigations south of Del Amo Boulevard and Van Ness Way to
delineate areas of high methane concentration and evaluate the sources of methane
and other hydrocarbons in soil vapor.4 Id., Ex. 7.
Groundwater, indoor air quality, and soil vapor in the area of Del Amo
Boulevard has also been studied by the California Department of Toxic Substances
Control (“DTSC”). Id., Ex. 5. Upon discovery of potential contamination in late
2007, 200 soil gas samples were taken from 116 locations in the area. Id. DTSC
determined “the results associated . . . do not indicate that vapors are accumulating
at levels of concern in indoor air because of subsurface vapor intrusion at this
time,” and “based on the current results, the levels detected in indoor air do not
pose a health risk at this time.”5 Id. DTSC further stated that regulatory agencies
would take “appropriate protective action” if that determination changed and
required periodic monitoring of soil vapors. Id. The current soil vapor monitoring
network consists of 32 soil vapor probes (monitored since 2007). The Refinery and
agencies have kept the public informed of the investigation by way of fact sheets,
meetings, open houses, and public document repositories. See id., Ex. 5.
III. ARGUMENT
A. Plaintiffs Must Demonstrate Compliance With Rule 23
Parties seeking class certification bear the burden of demonstrating, by a
preponderance of the evidence, that they have met each of the four requirements of
Federal Rule of Civil Procedure 23(a)—numerosity, commonality, typicality, and
adequacy—and at least one of the requirements of Rule 23(b). Ellis v. Costco
Wholesale Corp., 657 F.3d 970, 980–81 (9th Cir. 2011); Fed. R. Civ. P. 23.
4 Soil vapor is the gas that forms when certain vapor-forming chemicals evaporate from
soil or groundwater.
5 Plaintiffs’ experts did not compare the 2018 indoor air sample results collected for this
action to those DTSC considered in 2008. DS Decl., Ex. E 126:3–7, Ex. D 145:11–17. But
comparison of the data reveals the 2018 levels are lower. See ME Decl. ¶¶17–20.
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Plaintiffs seek certification under Rule 23(b)(3), requiring them to establish
predominance and superiority, and 23(b)(2), which hinges on injunctive relief for
the class. District courts must conduct “a rigorous analysis” and if Plaintiffs cannot
“affirmatively demonstrate” with “evidentiary proof” that all requisites are met,
certification must be denied. Dukes, 564 U.S. at 350–51; Comcast Corp. v.
Behrend, 569 U.S. 27, 33 (2013).
B. Plaintiffs Have Not Demonstrated Commonality, Typicality,
Predominance, or Superiority
1. Legal Standards
Rule 23(b)(3) requires that common “questions of law or fact . . .
predominate over any questions affecting only individual members” such that “a
class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” See also Fed. R. Civ. P. 23(a). For commonality,
“[w]hat matters to class certification . . . is not the raising of common ‘questions’—
even in droves—but, rather the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at
350 (internal quotation marks omitted) (class claims “must be of such a nature that
[they are] capable of classwide resolution . . . .”); Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 157 (1982) (common questions must be material to the resolution of
claims asserted and demonstrate putative class members “suffered the same
injury”). Here, the uniqueness of Plaintiffs’ claims and purported injuries make it so
they cannot demonstrate either commonality or typicality. See Dukes, 564 U.S. at
350–51; Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal
quotation and citation omitted) (“The test of typicality is whether other members
have the same or similar injury, whether the action is based on conduct which is not
unique to the named plaintiffs, and whether other class members have been injured
by the same course of conduct.”). And, even if they could, Plaintiffs could not
satisfy the “far more demanding” predominance requirement under Rule 23(b)(3),
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which requires consideration of each element of their claims and any defenses and
the evidence necessary to litigate each issue. See Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 624 (1997); Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S.
804, 810 (2011). If resolution of these issues would cause the proceeding to
“splinter into individual trials, common questions do not predominate.” See
O’Connor v. Boeing N. Am. Inc., 197 F.R.D. 404, 414 (C.D. Cal. 2000).
2. Plaintiffs’ Personal Injury Claims Cannot Be Certified
a. Causation Requires an Individualized Determination
That Predominates Over Common Issues
To the extent Plaintiffs seek to recover for personal injury (through the
physical exposure subclass and claims for negligence and strict liability), they must
prove a causal link between a specific Refinery-related event and their alleged
injury. See Tribeca Cos., LLC v. First American Title Ins. Co., 239 Cal. App. 4th
1088, 1102 (2015) (causation is an essential element of a negligence claim); Smith
v. Lockheed Propulsion Co., 247 Cal. App. 2d 774, 780 (1967) (same for strict
liability). This cannot be done on a classwide basis. This is precisely why personal
injury classes are almost never certified and instead typically proceed as
coordinated mass actions.6 The events about which Plaintiffs complain are not a
single event nor even a series of events related in time or location. The complexity
of Plaintiffs’ case—and inherent lack of commonality on the question of liability—
facially dooms its certification.
Specifically, Plaintiffs cannot prove on a classwide basis exposure to any
contaminant, a prerequisite to proving causation. See Avila v. Willits Envtl.
6 The Committee note to Rule 23(b)(3) explains: “A ‘mass accident’ resulting in injuries
to numerous persons is ordinarily not appropriate for a class action because of the
likelihood that significant questions, not only of damages but of liability and defenses of
liability, would be present, affecting the individuals in different ways. In these
circumstances an action conducted nominally as a class action would degenerate in
practice into multiple lawsuits separately tried.” Fed. R. Civ. P. 23(b)(3) Advisory
Committee Note (1996). See also Zinser, 253 F.3d at 1189 (certification denied because
“it is inescapable that many triable individualized issues may be presented”).
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Remediation Tr., 633 F.3d 828, 836 (9th Cir. 2011) (“There can be no causation if
there has been no exposure.”). Even if Plaintiffs’ experts complete their
contemplated air and groundwater modeling,7 it will not demonstrate exposure. At
most, it would show where a contaminant allegedly traveled. To illustrate,
regarding February 18, the factfinder must still ask: Was the individual home at
8:50 AM? If home, was she outdoors? Youssef testified he was home and stayed
indoors on February 18, while V. Heard testified she was home and went outside.
Dawn Sestito Declaration in Opposition to Class Certification (“DS Decl.”), Ex. A
241:22–242:21; 244:24–245:4, Ex. B 243:2–13; 245:9–14. La Bella, in contrast,
was jogging right outside the Refinery and recorded a video of ash falling around
her. Id., Ex. C 39:3–40:25. These types of questions will have to be asked for every
potential class member just to determine exposure, as conceded by Plaintiffs’
toxicology expert. Id., Ex. D 227:20–228:11, 231:14–234:13. Similar inquiries
would have to be made related to operational emissions.8 And the inquiry is even
more complicated for soil or groundwater contamination because contaminant
levels vary throughout the plume and contaminated groundwater does not
necessarily result in vapor intrusion. Id., Ex. E 164:4–165:16. So the presence of
contaminated groundwater alone says nothing about Plaintiffs’ potential exposure.
Even if exposure could be demonstrated on a classwide basis—which it
cannot—individual issues still dominate the analysis of whether or not such
exposure ultimately caused or will cause any injury. Plaintiffs’ toxicologist
conceded that two people in the same house might respond differently to exposure
to the same chemical. Id., Ex. D 192:5–15. The specific personal injuries alleged
here range from asthma and diminished lung capacity (Goldstein) to larynx/throat
7 Contrary to Plaintiffs’ arguments, the parties’ discovery disputes cannot be fairly blamed
for their experts’ inability to complete their modeling projects. See DS Decl. ¶¶ 6–7.
8 Questions might include how long the individual lived in her home, how much time is
spent at home, the proximity of the home to the Refinery, whether the individual works
(and, if so, where), and how often the individual travels.
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damage (La Bella) to a runny nose and itchy eyes (Clark) to nothing at all (V.
Heard). Dkt. 85-20 ¶13, Dkt. 85-22 ¶¶14, 16; Dkt. 85-25 ¶11; see generally Dkt.
85-27. Of course, to demonstrate causation, the parties will have to consider other
potential causes including, for example, exposure to other contaminants (including
Youssef’s prior work at a different refinery and Goldstein’s exposure to solvents
through prior employment)—see DS Decl., Ex. A 38:7–39:11, Ex. F 62:23–63:9—
or the use of VOCs (vapor-forming chemicals common in household cleaning and
beauty products). These factual issues will then get overlaid on an individual’s
medical history and preexisting conditions (like Goldstein’s history of respiratory
issues and La Bella’s diagnosis with reflux, which can cause throat irritation). See
id., Ex F 106:25–108:9, Ex. C 160:11–161:2. And consideration will have to be
given to the various lengths of time different class members have lived in Torrance
(Goldstein and V. Heard more than 30 years, Youssef since 2012, Clark since 2014,
and Karim since 2015). Dkt. 85-20 ¶6, Dkt. 85-26 ¶3; DS Decl., Ex. B 35:4–37:14,
Ex. A 33:14–20, Ex. G 26:12–17.
Plaintiffs have not articulated how they can prove any variety of personal
injury claims by common proof. As the Supreme Court noted in finding class
certification improper in Amchem, “[c]lass members were exposed to different
asbestos-containing products, for different amounts of time, in different ways, and
over different periods. Some class members suffer no physical injury or have only
asymptomatic pleural changes, while others suffer from lung cancer, disabling
asbestosis, or from mesothelioma.” 521 U.S. at 624; see also In re
Phenylpropanolamine (PPA) Prods. Liab. Litig., 208 F.R.D. 625, 631–32 (W.D.
Wash. 2002) (certification denied due to individualized issues like: “an individual’s
family and medical history; age; gender; diet; lifestyle, including the use of alcohol,
tobacco, and other legal or illegal drugs; . . . the timing of ingestion of the product; .
. . whether that individual suffered an injury, when the injury occurred, the type of
injury suffered . . . ”). The same is true here. And, because their alleged injuries are
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unique, none of the class members are typical.9
b. Plaintiffs’ Request for Medical Monitoring Raises
Additional Individual Issues
Plaintiffs’ request for medical monitoring fares no better. The Supreme Court
recognized in Amchem that “[medical] monitoring and treatment will depend on
singular circumstances and individual medical histories.” 521 U.S. at 624. Under
California law, to recover for medical monitoring, “there must be a . . . showing
that the need for monitoring is a reasonably certain consequence of the exposure” to
toxic substances. Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1006
(1993). If established, “a plaintiff may collect damages . . . measured by the
‘reasonable medical and other expenses’ to be incurred for monitoring.” Id.
Plaintiffs have not met any of these elements, nor explained how they can be
established with common proof. As explained above, determining whether a
particular individual has been exposed to a particular contaminant will be highly
individualized. Ignoring operational air emissions and the February 18 incident (and
thus conceding medical monitoring is not appropriate related to those emissions),
Plaintiffs’ toxicologist Dr. Clark instead focuses primarily on VOCs, surmising that
they are intruding into homes from subsurface groundwater contamination. Dkt.
85-4 ¶¶9–28. But even the indoor air testing performed by Plaintiffs shows
variability between homes surrounding the Refinery (though benzene levels
measured in 2018 are lower than levels DTSC deemed safe 10 years ago). ME
Decl. ¶¶17–20. In other words, testing of each home will be required to determine if
there are increased VOC levels above what DTSC deemed safe, and then other
9 Because the physical exposure subclass includes Refinery workers, another
individualized issue is whether workers’ compensation bars tort recovery for those
employees and contractors. See, e.g., Cal. Lab. Code §§ 3600, 3602; SeaBright Ins. Co. v.
U.S. Airways, Inc., 52 Cal. 4th 590, 594 (2011). It was partly for this reason (differing
duties and obligations owed to employees/contractors versus members of the public) that
another judge declined to find this action related to a single-plaintiff case filed by an
independent contractor relating to the February incident. See Dkt. 18.
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potential sources will need investigation.
Nor have Plaintiffs submitted any evidence or even articulated the necessity,
extent, or type of monitoring needed, identified a specific toxin and specific
condition that should be monitored for, or how those elements can be established by
common proof.10 They cannot; these elements are particularly individualized. For
example, in Barraza v. C.R. Bard, Inc., although “[t]he level of exposure [was] not
disputed” since “each class member [was] 100% exposed” to the same medical
device, the court nonetheless held that determining the necessity and extent of
medical monitoring presented “an individualized inquiry into the medical needs and
ongoing course of treatment for each class member,” denying class certification.
322 F.R.D. 369, 381–82 (D. Ariz. 2017). A monitoring program designed for
Youssef, an 47-year old man with no significant medical conditions who lives near
the groundwater plume, see generally Dkt. 85-23, will be significantly different
than a monitoring program designed for Goldstein, a 74-year old man who lives
miles from the groundwater plume but has been admitted to the emergency room 22
times in the last six years and treated for ailments as varied as allergies, asthma,
bronchitis, sepsis, and sleep apnea. See, e.g., DS Decl., Ex. F 74:20–75:3, 76:11–
25, 78:19-25, 103:15–104:24. Shahid Karim’s will be different still given that he
was diagnosed with Chronic Lymphocytic Leukemia before he moved to Torrance
in 2015. Dkt. 85-26 ¶11. Cf. Lockheed Martin Corp. v. Super. Court, 29 Cal. 4th
1096, 1115 (2003) (“[D]etermining the extent of monitoring required by each class
member absent exposure poses a highly individualized inquiry. A class member’s
risk of developing a medical condition depends on numerous [unique] factors . . .
.”); Lewallen v. Medtronic USA, Inc., 2002 WL 31300899, at *4 (N.D. Cal. Aug.
28, 2002) (medical monitoring raises “particularly individualized inquir[ies]”); In
re St. Jude Med., Inc., 425 F.3d 1116, 1122 (8th Cir. 2008) (monitoring analysis
10 In particular, Plaintiffs make no attempt to explain why medical monitoring is necessary
for individuals allegedly exposed to operational emissions or the February 18 incident.
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was “an individualized inquiry depending on that patient’s medical history, . . . the
patient’s risk factors . . ., the patient’s general health, the patient’s personal choice,
and other factors”). There is no basis to certify a class seeking medical monitoring.
3. Plaintiffs’ Claims Predicated On Interference With Property
Rights Cannot Be Certified
The three remaining subclasses—soil and groundwater contamination,
operational emissions, and explosion debris from the February 18 incident—appear
to be predicated on potential interference with property rights on behalf of owners
and lessees of real property. These subclasses are not certifiable.
a. Nuisance Claims Necessarily Require Individualized
Determinations to Establish Liability
Plaintiffs’ motion is swimming against the tide of relevant authorities for
environmental class treatment.11 “Single instances or simple theories of
contamination may be more apt for consolidated proceedings than extensive periods
of contamination with multiple sources and various pathways.” See Gates v. Rohm
& Haas Co., 655 F.3d 255, 271–72 (3d Cir. 2011) (“Here, plaintiffs contend varied
11 Plaintiffs claim that environmental cases can be certified with citations to a series of
pre-Dukes cases largely not derived from California law, and single-incident cases like
Deepwater Horizon, Exxon Valdez, and Turner, which provide little guidance in a case
where the alleged claims arise from a variety of activities. See Mot. 8, 14–16, 18–19.
Deepwater Horizon and Exxon Valdez are particularly unhelpful—Deepwater Horizon
was certified for settlement purposes so there was no consideration of any “intractable
management problems” if certified, In re Oil Spill by Oil Rig Deepwater Horizon in Gulf
of Mexico, on April 20, 2010, 910 F. Supp. 2d 891, 915, 930 (E.D. La. 2012) (noting
importance of spill being a “single-event, single-location disaster”), and Exxon Valdez
involved the certification of a mandatory punitive damages class at Exxon’s request, after
it stipulated to negligence and liability for compensatory damages. Exxon Shipping Co. v.
Baker, 554 U.S. 471, 479 (2008). Plaintiffs’ reliance on O’Connor, perhaps the most
closely analogous California case, is also misplaced as the court ultimately decertified
nuisance and trespass claims after acknowledging California cases “requir[ing] an
evaluation of the individual characteristics of a property” and developing “a more realistic
appreciation of the effect of individualized questions.” See 197 F.R.D. at 418. Also
unpersuasive is Plaintiffs’ citation of the dissent in Lockheed to support their commonality
argument. See Mot. 15–16. As discussed infra, the California Supreme Court’s holding in
that case counsels against certification here.
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levels of vinylidene chloride at various times seeped into a shallow aquifer,
degraded into vinyl chloride, diffused from the aquifer to the ground above, and
evaporated into the air to be carried over the village. Given the potential difference
in contamination on the properties, common issues do not predominate.”). Rather
than a single event, single harm situation, or simple contamination pathway,
Plaintiffs allege a multi-source, multi-party action involving decades of air
emissions, an explosion, groundwater contamination, and noise, light, and odor. Cf.
Cochran v. Oxy Vinyls LP, 2008 WL 4146383, at *9 (W.D. Ky. Sept. 2, 2008)
(“[T]he presence of multiple industrial facilities in the vicinity strongly suggests
that no single proximate cause equally applies to each potential class member and
each defendant.” (internal quotation marks omitted)). These events underlie four
separate nuisance claims, alleging generally that Plaintiffs have been exposed to
“an array of toxic substances on the land, and/or a lingering malicious odor, noise,
soot, ash, and dust in the air.” Dkt. 115 ¶¶85, 93, 99, 106. In addition to identifying
the liable defendant, to succeed, putative class members must prove the Refinery’s
activities are of “such a nature, duration or amount as to constitute unreasonable
interference with the use and enjoyment of [their] land.” See San Diego Gas &
Elec. Co. v. Superior Court, 13 Cal. 4th 893, 938 (1996) (internal quotation marks
omitted). As such, the California Supreme Court has held that nuisance claims
under California law inherently raise individualized issues.
In City of San Jose v. Superior Court, 12 Cal. 3d 447 (1974), property
owners near an airport brought a class action alleging aircraft noise, vapor, dust,
and vibration constituted a nuisance. The California Supreme Court rejected class
certification as a matter of law:
An approaching or departing aircraft may or may not give rise to actionable
nuisance . . . depending on a myriad of individualized evidentiary
factors. While landing or departure may be a fact common to all, liability
can be established only after extensive examination of the circumstances
surrounding each party. Development, use, topography, zoning, physical
condition, and relative location are among the many important criteria . . . .
No one factor, not even noise level, will be determinative as to all parcels.
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Id. at 460–61. City of San Jose is dispositive here. While the presence of the
Refinery is common to the putative class members’ claims, almost every other
factor to determine nuisance liability will vary amongst class members and so class
adjudication “would fail to establish the basic issue of defendant’s liability to the
purported class.” Id. at 462–63. The proposed subclasses include a wide range of
properties, including both residential and industrial uses. Putative class members
vary significantly in how long they have resided in Torrance (ranging from three to
more than 30 years for those who submitted supporting declarations, see supra).
Their distance from the Refinery varies (with Goldstein located more than two
miles away and the Heards, Youssef, Karim, and Clark located on the same street
adjacent to the Refinery). Dkt. 85-20 ¶6, Dkt. 85-27 ¶2, Dkt. 85-23 ¶2, Dkt. 85-26
¶2, Dkt. 85-25 ¶2. Several putative class members concede they could hear or smell
the Refinery from certain locations in Torrance within a three-mile radius but not
others. See, e.g., DS Decl., Ex. A 110:11–22 (Youssef “never [thought] about
refinery” when living two miles away), Ex. G 148:11–150:20 (Clark does not
smell, see, hear, or experience breathing issues at daughter’s school one mile
away). And individuals use their properties differently. Even two people who live
in the same home—K. Heard and V. Heard—are impacted by the Refinery in
totally different ways. K. Heard allegedly no longer enjoys barbeques with his
friends in his backyard because of the air quality and odors. Id., Ex. H 73:4–76:21.
But his mother, V. Heard (who owns the house in which they both live), could
identify no way in which the use of her home was impacted by the Refinery. She
does not smell the Refinery and the occasional noise and light have not changed
how she uses her home. Id., Ex. B 132:7–133:13. And unaddressed by any evidence
is whether groundwater contamination underlying certain properties interferes with
the use of those properties or even physically intrudes. See Dkt. 85-14.
Adjudicating the nuisance claims, then, will require atypical, individualized
questions that will overwhelm the litigation. Even if Plaintiffs could complete the
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modeling described by Drs. Laton and Clark, the following types of individual
questions will still need to be asked for every class member: Is your property
residential or industrial? How do you use and enjoy the property? Where is your
property located in comparison to the Refinery? Do you smell any odors, hear any
noise, or see any lights from the Refinery? How much and how often? Over what
time period? How do those things interfere with the use of your property? Is that
interference substantial and unreasonable? Because each class member’s proof will
require individualized determination, class certification of the nuisance claims
should be denied.12 See, e.g., Frieman v. San Rafael Rock Quarry, 116 Cal. App.
4th 29, 41–42 (2004) (“Whether each resident even heard or felt the impact of
Quarry’s operations is subject to separate and differing . . . proof. Each resident
would have to prove interference with the comfortable enjoyment of life or property
. . . [that] was ‘substantial and unreasonable.’ Plaintiffs produced no evidence that
these issues do not vary significantly as to each individual in the defined area.”);
Dep’t of Fish & Game v. Superior Court, 197 Cal. App. 4th 1323, 1353 (2011)
(“Whether the 2007 poisoning offended plaintiffs’ senses, obstructed the free use of
their property, or unreasonably interfered with the comfortable enjoyment of their
property . . . or exercise of their property rights clearly depends on the
characteristics of the individual plaintiff and his or her property.”).
b. Causation Requires an Individualized Determination
That Predominates Over Common Issues
Causation and injury are essential elements of Plaintiffs’ nuisance, trespass,
negligence, and strict liability claims.13 These elements raise individualized issues
12 Plaintiffs’ public nuisance claims raise further certifiability concerns because they
necessarily require proof of special injury. See Cal. Civ. Code § 3493. Thus, “by
definition a class representative who suffers harm different in kind than other class
members would also not have claims typical of the class’s claim.” See Simpson v. Cal.
Pizza Kitchen, Inc., 989 F. Supp. 2d 1015, 1025 n.6 (S.D. Cal. 2013) (expressing “doubt
as to the compatibility of a public nuisance craim [sic] with the class action vehicle”).
13 Plaintiffs are seeking actual (not nominal) damages for their trespass claims. See Dkt.
115 ¶¶112–17; Staples v. Hoefke, 189 Cal. App. 3d 1397, 1405 (1987).
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that predominate over common issues. Taking the trespass claims as an example,
Plaintiffs must prove “an unlawful interference with possession of property.”
Mangini v. Aerojet-General Corp., 230 Cal. App. 3d 1125, 1141 (1991) (internal
quotation marks omitted); Wilson v. Inerlake Steel Co., 32 Cal. 3d 229, 233 (1982)
(intangible property intrusions like noise, odor, or light that do not cause physical
damage are not trespasses). Following the February 18 incident, V. Heard testified
she saw no debris on her property, but noticed cracks in her exterior walls (which
may have been caused by normal settling of her home—a causation issue that will
have to be individually adjudicated), DS Decl., Ex. B 179:21–180:9, 266:6–13,
whereas K. Clark (who lives just down the block) had to rent a power washer to
clean the debris off of her home but identified no other damage from the incident.
Id. Ex. G 153:22–154:12. These issues cannot be assessed on a classwide basis.14
The same is true for groundwater contamination. Such contamination alone
cannot substantiate a trespass because groundwater is the property of the State of
California. Orange Cty. Water Dist. v. Sabic Innovative Plastics US, LLC, 14 Cal.
App. 5th 343, 415 (2017) (citations omitted). Plaintiffs must therefore prove some
level of chemical exposure so as to restrict use of the property. See, e.g., Baker v.
Chevron, USA, Inc., 2009 WL 3698419, at *4–5 (S.D. Ohio Nov. 4, 2009). But Dr.
Laton’s work merely illustrates the extent of groundwater contamination reported
by the Refinery to the Regional Board. DS Decl., Ex. E 31:4–21, 73:13–21. He has
not quantified vapor intrusion into any property, and he characterized Plaintiffs’
2018 indoor air sampling as “preliminary,” such that he could not causally tie it to
the groundwater contamination. Id. 34:21–35:9, 78:25–79:9, 129:7–21. Dr. Laton
also confirmed that contaminant concentration in groundwater varies throughout the
plume and will vary for class members depending on their location.15 Id. 164:23–
14 The same analysis applies to the nuisance, negligence, and strict liability claims.
15 Plaintiffs’ toxicologist, Dr. Clark, is even less committal. He referred to Plaintiffs’
sampling as a “snapshot,” concurring with DTSC that a single sampling event is
insufficient to evaluate the extent of exposures. DS Decl., Ex. D 58:23–60:5, 143:3–9. He
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165:16. Plaintiffs have thus not demonstrated how they can prove causation, harm,
or entitlement to environmental monitoring on a classwide basis. See, e.g., Ebert v.
General Mills, Inc., 823 F.3d 472, 479 (8th Cir. 2016) (no class certification
because causation analysis for vapor contamination would include a “property-by-
property assessment of additional upgradient (or other) sources of contamination,
whether unique conditions and features of the property create the potential for
vapor intrusion, whether (and to what extent) the groundwater beneath a property is
contaminated, whether mitigation has occurred at the property . . . .”).
c. No Evidence Supports a Diminution in Property Value
Remedy on a Classwide Basis
A diminution in value remedy is not appropriate for class certification either.
As an initial matter, diminution in value is available as a remedy for permanent, not
continuing, nuisance. Gehr v. Baker Hughes Oil Field Operations, Inc., 165 Cal.
App. 4th 660, 668 (2008) (“[A] plaintiff in a continuing nuisance case may not
recover diminution in value damages.”). Many of the claims here appear to reflect a
continuing, not permanent, nuisance for which this remedy is not available. For
example, the few courts that have considered the nature of soil and groundwater
contamination have concluded any related nuisance is abatable even if abatement
may take decades to complete. See Mangini, 230 Cal. App. 3d at 1145–49; see also
Arcade Water Dist. v. U.S., 940 F.2d 1265, 1268–69 (9th Cir. 1991). Accordingly,
soil and groundwater contamination are generally considered a continuing nuisance,
and diminution in property value would not be available as a remedy. The same is
true for noise, odor, light, soot, and the like. See Baker v. Burbank-Glendale-
Pasadena Airport Auth., 39 Cal. 3d 862, 869 (1985). Even if some class members
might opt to pursue permanent rather than continuing nuisance, that itself is an
individualized question that will depend on various factors unique to each class
has not considered preparing geographic maps of exposure areas for either chemicals or
odors, id. 132:3–12, 204:17–205:1, and he failed to describe how he could otherwise
conduct an exposure evaluation. Id. 210:16–211:1.
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member (including whether a claim for permanent nuisance is time-barred—for
many class members, it would be, see infra Section III.B.4).
Diminution in property value cannot be adjudicated on a classwide basis in
any event. Plaintiffs assert “[i]ndividual appraisals of class members’ properties
will not be necessary in order to reach a determination as to the devaluation of the
real property.” Mot. 17. But they have provided no explanation, much less
evidence, of how diminution in value could be determined by common proof.
Plaintiffs have submitted no expert testimony on diminution in property value.
They have proposed no model explaining how it could be calculated here. The class
includes a wide range of properties—residential and commercial and properties
right next to the Refinery versus others up to three miles away. The putative class
members have a plethora of individualized issues bearing on the value of their
homes, including differences in knowledge over time. For example, V. Heard was
provided a disclosure regarding nearby contamination directly from ExxonMobil in
2008, along with an offer to participate in a program through which ExxonMobil
would guarantee the value of her home. DS Decl., Ex. B 25:5–23, Ex. 36.
With no expert, no model, and no evidence to demonstrate how diminution of
property value could be adjudicated on a classwide basis, class certification must be
denied. See Comcast, 569 U.S. at 28. Indeed, this Court has held that class
certification is not appropriate for claims seeking diminution in property value
where “Plaintiff’s damages models clearly fall far short of establishing that
damages are capable of measurement on a classwide basis.” Kingsbury v. U.S.
Greenfiber, LLC, 2013 WL 12114077 at *2 (C.D. Cal. Nov. 5, 2013) (Fischer, J.)
(internal quotation marks omitted); see also Parko v. Shell Oil Co., 739 F.3d 1083,
1086 (7th Cir. 2014) (reversing class certification for claims arising from refinery
groundwater contamination because it could not “be assumed that every class
member has experienced the same diminution in the value of his property even if
every one has experienced the same level of contamination”); Comcast, 569 U.S. at
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34 (class should not be certified where “[q]uestions of individual damage
calculations will inevitably overwhelm questions common to the class”).
4. Individual Statutes of Limitations Issues Predominate
Although Plaintiffs do not address it in their motion, predominance of
common issues must also be established with respect to possible defenses. See In re
N. Dist. of Cal., Dalkon Shield IUD Prod. Liab. Litig., 693 F.2d 847, 853 (9th Cir.
1982), abrogated on other grounds (“[T]he alleged tortfeasor’s affirmative defenses
. . . may depend on facts peculiar to each plaintiff’s case.”). Here, the application of
the relevant statutes of limitations will differ amongst putative class members,
further rendering this litigation unsuitable for certification. See Cal. Civ. Proc. Code
§ 335.1 (two-year statute of limitations for personal injury); id. § 338 (three-year
statute of limitations for real property injury). Because of the length of time many
have owned their property, their claims may be time-barred. See, e.g., DS Decl., Ex.
G 59:1–7 (difficulty breathing since 2014); id., Ex. B 35:4–37:14 (lived on various
addresses on Del Amo Blvd. since 1978); id., Ex. H 28:8–20 (lived in home on and
off from 1997); id., Ex. A 33:14–20 (moved into home in 2012); id., Ex. F 14:15–
16 (moved into home in 1983).
If putative class members seek to avoid this result by arguing that their
claims did not accrue until they were aware of their injuries or the causes thereof,
see Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1109 (1988) (describing discovery
rule), then this would invite a fact-intensive inquiry into each person’s knowledge
and circumstances and whether she could have reasonably concluded, based on
available information (e.g., news stories, government communications,
conversations with friends and neighbors), that Refinery operations were the source
of any injury. For example, evaluating the timeliness of Youssef’s claims would
require further exploration of both what he knew about the 2007–08 vapor intrusion
at the time it occurred, see DS Decl., Ex. A 162:15–24 (read about contamination
issues in Torrance in the paper), and when he purchased his home in 2012, see id.
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178:3–179:4, Ex. 22 at GOLDSTEIND000045 (documents received from realtor
disclosed potential contamination). The necessity of undertaking individualized
statute of limitations disputes for virtually every class member further advises
against certification. Cf. O’Connor, 197 F.R.D. at 414 (“Based on the
individualized, fact-intensive nature of the necessary inquiry in this case, the statute
of limitations issues preclude a finding that common issues predominate.”).16
5. Plaintiffs Cannot Meet the Superiority Requirement of Rule
23(b)(3)
For the same reasons underlying their failure to demonstrate commonality,
typicality, and predominance, Plaintiffs have failed to demonstrate that a class
action is “superior” to other available methods for adjudicating this controversy.
See Fed. R. Civ. P. 23(b)(3). Generally, the relevant factors include:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions; (B) the extent and nature of
any litigation concerning the controversy already begun by or against
class members; (C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and (D) the likely
difficulties in managing a class action.
Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir.
2010) (quoting Fed. R. Civ. P. 23(b)(3)). But, as Plaintiffs themselves
acknowledge, Rule 23(b)(3)’s superiority requirement is largely “influenced by
considerations relevant to the predominance inquiry.” See Mot. 21. Here, the
16 Plaintiffs’ claims also cannot be certified under Rule 23(b)(3) because their proposed
subclasses are insufficiently ascertainable since they lump together putative class
members with differing harm (property damage, personal injury, economic harm,
potentially no injury, etc.) caused by various types of exposures (groundwater, soil, soil
vapor, indoor air, operational emissions, 2015 incident debris), over different time
periods, and over the ownership tenures of two different Defendants. See Brooks v.
Darling Int’l, Inc., 2017 WL 1198542, at *14 (E.D. Cal. 2017) (overbroad class definition
precluded finding predominance under Rule 23(b)(3)). Plaintiffs’ reliance on dicta from
Brooks, see Mot. 14, should be disregarded, particularly since the court acknowledged its
failure to address the defendants’ argument “that proving . . . the nature and extent of any
harm suffered [for nuisance and negligence claims], will require individualized proof.”
Brooks, 2017 WL 1198542 at *14 n.8.
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predominance of extensive individual issues would render Plaintiffs’ putative class
action unmanageable. See, e.g., Zinser v. Accufix Research Inst., Inc., 253 F.3d
1180, 1192 (9th Cir. 2001) (“If each class member has to litigate numerous and
substantial separate issues to establish her or her right to recover individually, a
class action is not ‘superior.’”); In re Citimortgage, Inc. Home Affordable
Modification Program (“HAMP”) Litig., 2013 WL 8844095, at *7 (C.D. Cal. Oct.
7, 2013) (Fischer, J.) (“[I]t is clear that a class action, as currently proposed by
Plaintiffs, is not the superior means of dealing with the incredible variety of
individual issues.”). This alone is sufficient to establish a class action is not the
superior method of adjudicating Plaintiffs’ claims.17 See, e.g., Faulk v. Sears
Roebuck and Co., 2013 WL 1703378, at *10 (N.D. Cal. Apr. 19, 2013) (superiority
lacking because “each member of the putative class may need to litigate myriad
individual issues to establish his or her own right to recovery”).
C. Plaintiffs’ Counsel Will Not Adequately Represent The Class
Class counsel must “fairly and adequately represent the interests of the
class.” Fed. R. Civ. P. 23(g)(4). Although Plaintiffs fail to address these factors in
their motion, see Mot. 13, to ensure this occurs, a court must consider, among other
things, “counsel’s experience in handling class actions, other complex litigation,
and the types of claims asserted in the action” and “counsel’s knowledge of the
17 Even so, other factors weigh in favor of finding a class action not superior here.
Plaintiffs’ argument that individual litigation is preferable because this “litigation would
not be feasible absent the class mechanism,” Mot. 22, is belied by the nature of their
claims. Plaintiffs assert the existence or possibility of permanent debilitating personal
injury, contamination that requires environmental remediation at great expense, and
diminution in property value. And although the class definition contemplates hundreds of
thousands of plaintiffs, see Dkt. 115 ¶40, this case is brought by only a handful of
individuals, and the conduct alleged herein has yielded only eight other lawsuits by local
residents or workers. See DS Decl. ¶2. This suggests that “individual litigation may be
sufficient to satisfy potential claims.” See Zinser, 253 F.3d at 1191 (noting that
“[a]lthough thousands of patients were implanted with the ENCOR lead, only nine
lawsuits are pending”). Even if additional cases were filed, they could be adequately
handled in a coordinated mass action. See Manual for Complex Litigation §10.123.
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applicable law.” See Fed. R. Civ. P. 23(g)(1)(A). This Court has already rightly
questioned whether the Matern Law Group, an employment law firm, can meet this
standard in a case involving complex environmental claims. See July 2, 2018
Hearing Tr. 5:5–13 (“I can’t imagine, frankly, certifying a class with this class
counsel unless you get somebody in who knows about this kind of case”); Dkt. 141
(issuing OSC to Matern re “why the class allegations should not be stricken”). The
addition of Sher Edling LLP to this action does not adequately address the Court’s
concerns. To demonstrate Sher Edling’s qualifications, see Dkt. 144-1 at 2,
Plaintiffs can point only to their representation of “states, cities and other public
agencies” and “technical familiarity with issues involving groundwater
contamination”—begging the question as to whether Sher Edling can sufficiently
litigate a class action (supposedly on behalf of hundreds of thousands of
individuals) in which three of the four proposed subclasses relate to air emissions.
Also relevant to this determination is Matern’s conduct in this litigation thus
far. See Fed. R. Civ. P. 23(g)(1)(B); see also In re Mego Fin. Corp. Sec. Litig., 213
F.3d 454, 462 (9th Cir. 2000). As this Court recognized when denying Plaintiffs the
opportunity to supplement or delay their certification briefing, Matern’s conduct in
this action “causes . . . grave concern about counsel’s adequacy – especially in a
case of this nature.” Dkt. 90 at 3. That conduct has not since improved. See DS
Decl. ¶¶3–5. Simply put, neither Matern nor Sher Edling can properly serve as class
counsel, and certification should be denied. Cf. Evans v. IAC/Interactive Corp., 244
F.R.D. 568, 577 (C.D. Cal. 2007) (Fischer, J.) (denying class certification solely
due to inadequacy of class counsel).18
18 This is not to say that the class representatives are adequate. As Plaintiffs acknowledge,
the “commonality and typicality requirements [sic] . . . serve as guideposts for
determining whether . . . the interests of the class members will be fairly and adequately
protected in their absence.” See Mot. 13 (quoting Amchem, 521 U.S. at 626, n.20).
Because Goldstein, Youssef, and La Bella—with their unique medical issues, property
concerns (or lack thereof), and susceptibility to particular defenses—have failed to meet
these prongs, they too cannot be found adequate class representatives under Rule 23(a)(4).
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D. Plaintiffs Have Not Demonstrated Numerosity
A class representative may sue on behalf of all members only if the class is
“so numerous that joinder of all members is impracticable.” Fed. R. Civ. P.
23(a)(1). “[A] conclusory allegation [of impracticability] is not sufficient to meet
the requirements of Rule 23(a)(1),” and “joinder need not be impossible so long as
potential class members would not suffer hardship or inconvenience if joinder were
required.” Williamson v. Geisler, 2013 WL 12087188, at *3 (C.D. Cal. Sept. 19,
2013) (Fischer, J.) (internal quotation marks omitted). Moreover, evidence that a
class consists of 40 to 50 members, without more, is insufficient to satisfy the
numerosity requirement. Id. Here, Plaintiffs made no showing of impracticability
whatsoever, failing wholly to meet their evidentiary burden. Mot. 7. As to the
number of class members, Plaintiffs rely solely on one exhibit to the Laton
Declaration. See Mot. 7 (citing “Laton Decl., Ex. 2b”). From this exhibit purporting
to show “50 properties” above a benzene plume, Plaintiffs baldy speculate that
“each proposed subclass” “likely” includes over one hundred members. See id.
Plaintiffs offer no evidence connecting the Laton exhibit to any groundwater
exposure mechanism nor explain how it has any applicability to Plaintiffs’
subclasses relating to operational emissions or debris from the 2015 incident. See
id. 6–7. Plaintiffs’ complete failure of proof regarding numerosity compels denial
of the certification motion. Cf. Williamson, 2013 WL 12087188, at *3 (denying
certification when “Plaintiffs provide[d] no support or evidence” for numerosity).
E. Rule 23(b)(2) Is Not Applicable
Plaintiffs also seek certification under Rule 23(b)(2) for purposes of
injunctive relief. Rule 23(b)(2) provides for class certification when “the party
Nor is Covas adequate—he no longer wishes to participate in this case and is awaiting
dismissal of his claims and the striking of his declaration. Dkt. 140; DS Decl. ¶8.
Goldstein’s adequacy is also questionable, as he appears to have testified falsely about the
signature on his supporting declaration (or submitted invalid discovery verifications). See
DS Decl. ¶9, Ex. K–L.
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opposing the class has acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) cannot be
used to certify a class in which the monetary relief sought is not “incidental to the
injunctive or declaratory relief.” Dukes, 564 U.S. at 360. In addition, and as
discussed at length by the Supreme Court in Dukes, a key and necessary feature of a
Rule 23(b)(2) class is that the injunctive or declaratory relief sought must provide
relief to each member of the class. See id. at 360–61 (Rule 23(b)(2) does not apply
when “each individual class member would be entitled to a different injunction or
declaratory judgment against the defendant” or “when each class member would be
entitled to an individualized award”).
Plaintiffs’ Second Amended Complaint (“SAC”) primarily seeks monetary
damages. Dkt. 115 p. 26–27 (seeking inter alia, “compensatory damages,”
“reasonable rental value,” “economic damages,” “past and future damages related
to environmental remediation,” “diminution in property value,” “damages related to
harm to public health,” “pre- and post-judgment interest,” “punitive damages”).
This fact alone makes it ineligible for Rule 23(b)(2) certification. Dukes, 564 U.S.
at 360–61; see also Yamada v. Nobel Biocare Holding AG, 275 F.R.D. 573, 580
(C.D. Cal. 2011) (Rule 23(b)(2) certification inappropriate where injunctive relief
claim was “merely incidental” to the primary claim for monetary damages).
Furthermore, Plaintiffs’ sole claim for injunctive relief does not apply to the class
as a whole but rather seeks “sampling and monitoring of shallow groundwaters, soil
gas and indoor air,” Dkt. 115 p. 27. Even if read most broadly using Plaintiffs’
proposed plume maps, the requested sampling and monitoring would still only
pertain to certain class members in two of the four proposed subclasses (Soil and
Groundwater Contamination Subclass and Physical Exposure Subclass), and even
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then not to every member of those subclasses.19 Cf. Cholakyan v. Mercedes-Benz,
USA, LLC, 281 F.R.D. 534, 559 (C.D. Cal. 2012) (Rule 23(b)(2) certification
inappropriate where none of the remedies sought would result in classwide relief).
The SAC also includes a request for medical monitoring seeking “reasonable
costs for future medical monitoring in amounts as yet unascertained, but subject to
proof at trial,” Dkt. 115 ¶123, and asking for “creation of a medical monitoring
fund,” id. ¶124. As pled, Plaintiffs’ request for medical monitoring is more
appropriately viewed as a request for damages, subject to individualized
determination, rather than injunctive or declaratory relief subject to Rule 23(b)(2)
certification. See, e.g., Zinser, 253 F.3d at 1195–96 (stating that “[a] request for
medical monitoring cannot be categorized as primarily equitable or injunctive per
se” and concluding that request for a reserve fund to pay for things such as future
medical treatment was primarily a request for money damages). Plaintiffs
themselves state that an award of medical monitoring will consist of “reasonable
costs . . . subject to proof at trial,” thereby admitting the need for individualized
determinations as a component of the relief. Dkt. 115 ¶ 123. Cf. Barraza, 322
F.R.D. at 385–87 (declining to certify under Rule 23(b)(2) a request for “a Court-
supervised and Court-administered trust fund . . . to pay for the medical monitoring
protocol for all Class members” (internal quotation marks omitted)).
F. Rule 23(c)(4) Cannot Be Applied to Correct Class Deficiencies
In a last-ditch effort to save their class claims, Plaintiffs propose (but wholly
fail to justify) seven issues for certification20 pursuant to Rule 23(c)(4). But, such
19 Presumably recognizing this problem, Plaintiffs conjure a new claim for injunctive
relief in their Motion. See Mot. 23 (describing “an injunction ordering Defendants to
replace, repair, operate, and maintain the refinery using best available technologies”). No
such injunctive relief is sought in the SAC, so Defendants do not address it here.
20 Although their motion lists eight potential issues, (g) and (h) are identical. Moreover,
Plaintiffs’ request for certification of their entitlement to injunctive relief (i.e. abatement
of any nuisance or trespass associated with groundwater or soil contamination or medical
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certification is “appropriate only if the proposed issue class meets Rule 23’s other
requirements and would materially advance the litigation.” In re SFPP Right-of-
Way Claims, 2017 WL 2378363, at *18 (C.D. Cal. May 23, 2017) (internal
quotation marks omitted). Plaintiffs’ proposed liability classes—on all claims,
trespass for February 18 and soil and groundwater contamination, and nuisance for
soil and groundwater contamination—cannot meet this standard because, as
explained supra, any such liability requires highly individualized inquiries into the
causal link between the Refinery and Plaintiffs’ alleged harms. Cf. Dalkon Shield,
693 F.2d at 856 (reversing certification of issue class “limited to the issue of
liability, [because] Robins’ overall liability” requires proof “that Robins’ breach of
its duty proximately caused her particular injury”); Haley v. Medtronic, Inc., 169
F.R.D. 643, 656 (C.D. Cal. 1996) (denying issue certification as unmanageable
when “the Court [would have] to overcome numerous complexities raised by . . .
the individual issues regarding liability for fraud and misrepresentation”).21
Plaintiffs’ attempt to certify their entitlement to medical monitoring, or the “nature
and extent” of this monitoring, should similarly fail due to a predominance of
individualized issues, including with respect to putative class members’ potential
exposures, appropriate treatments, and medical histories. See supra III.B.2.b.
IV. CONCLUSION
For the foregoing reasons, class certification should be denied.
Dated: October 10, 2018 O’MELVENY & MYERS LLP
By: /s/ Dawn Sestito
Dawn Sestito
Attorney for Defendant
EXXON MOBIL CORPORATION
monitoring) is indistinguishable from their requests for certification of these issues and
should be rejected for the same reasons.
21 Curiously, Haley is the only case Plaintiffs cite to support this argument.
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Dated: October 10, 2018
MICHAEL J. FINNEGAN
MARK E. ELLIOTT
PILLSBURY WINTHROP SHAW
PITTMAN LLP
By: /s/ Mark E. Elliott
Mark E. Elliott
Attorney for Defendant
TORRANCE REFINING COMPANY LLC
ATTESTATION
I hereby attest, pursuant to Central District of California L.R. 5-4.3.4(a)(2)(i),
that the other signatory listed, on whose behalf the filing is submitted, concurs in
the filing’s content and has authorized the filing.
Dated: October 10, 2018
DAWN SESTITO
O’MELVENY & MYERS LLP
By: /s/ Dawn Sestito
Dawn Sestito
Attorney for Defendant
EXXON MOBIL CORPORATION
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