Arnold Goldstein et al v. Exxon Mobil Corporation, et al

REPLY in Support of Corrected NOTICE OF MOTION AND MOTION to Certify Class 85

C.D. Cal.February 7, 2019

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP MATTHEW J. MATERN (SBN 159798) mmatern@maternlawgroup.com JOSHUA D. BOXER (SBN 226712) jboxer@maternlawgroup.com TAGORE O. SUBRAMANIAM (SBN 280126) tagore@maternlawgroup.com DANIEL J. BASS (SBN 287466) dbass@maternlawgroup.com MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, California 90266 Tel: (310) 531-1900 Fax: (310) 531-1901 MATTHEW K. EDLING (SBN 250940) matt@sheredling.com MEREDITH S. WILENSKY (SBN 309268) meredith@sheredling.com SHER EDLING LLP 100 Montgomery St., Suite 1410 San Francisco, CA 94104 Tel: (628) 231-2500 Fax: (628) 231-2929 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARNOLD GOLDSTEIN, et al., Plaintiffs, v. EXXON MOBIL CORPORATION, et al., Defendants. Case No. 2:17-cv-02477-DSF (SKx) PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS Judge Dale S. Fischer DATE: February 25, 2019 TIME: 1:30 p.m. CTRM: 7D Second Amended Complaint filed: July 9, 2018 Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 1 of 17 Page ID #:7854 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP TABLE OF CONTENTS I. INTRODUCTION............................................................................................. 1 II. ARGUMENT ..................................................................................................... 1 A. The proposed property-based subclasses satisfy commonality, predominance, typicality, and superiority. ............................................ 1 1. The most important questions in this case have common answers. ... 1 2. Liability will be proven on a class-wide basis because Plaintiffs’ claims arise from a “single course of conduct.” ................................. 2 3. Causation turns on common proof. .................................................... 4 4. Plaintiffs’ claims are typical of the other class members. .................. 7 5. A class action is superior to individual lawsuits. ............................... 7 B. The Operational Emissions Subclass seeks injunctive relief and may be certified under Rule 23(b)(2). ............................................................. 8 C. The Physical Exposure class should be certified as an issue class. ...... 8 D. The subclasses satisfy Rule 23’s remaining requirements. .................. 9 1. Plaintiffs’ counsel can adequately represent the class. ...................... 9 2. The proposed class is so numerous that joinder is impracticable. ..... 9 3. Plaintiffs’ subclasses are ascertainable. ............................................ 10 E. Additional work conducted by Plaintiffs’ experts support leave to renew Plaintiffs’ Motion should the Court find additional factual basis is required. ..................................................................................... 11 III. CONCLUSION ............................................................................................... 12 Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 2 of 17 Page ID #:7855 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP TABLE OF AUTHORITIES Cases Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952 (9th Cir. 2013) .................................................................................. 1 Andrews v. Plains All Am. Pipeline, L.P., No. CV154113PSGJEMX, 2018 WL 2717833 (C.D. Cal. Apr. 17, 2018) .. 5, 6, 12 Boggs v. Divested Atomic Corp., 141 F.R.D. 58 (S.D. Ohio 1991) ............................................................................. 7 Brooks v. Darling Int’l Inc., 2017 WL 1198542 (E.D. Cal. 2017) ..................................................................... 11 Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir. 1992) .................................................................................. 9 City of San Jose v. Superior Court, 12 Cal. 3d 447 (1974) ............................................................................................. 6 Cochran v. Oxy Vinyls LP, No. CIV. A. 306CV-364-H, 2008 WL 4146383 (W.D. Ky. Sept. 2, 2008) ........... 6 Cook v. Rockwell Int’l Corp., 151 F.R.D. 378 (D. Colo. 1993) ......................................................................... 2, 3 Evon v. Law Offices of Sidney Mickel, 688 F.3d 1015 (9th Cir. 2012) ................................................................................ 9 Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) ............................................................................................ 4, 5 Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011) ................................................................................... 3 In re Cooper Cos Inc. Sec. Litig., 254 F.R.D. 628 (C.D. Cal. 2009) ............................................................................ 9 In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014) .......................................................................... 1, 2, 4 In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 241 F.R.D. 435 (S.D.N.Y. 2007) ................................................................ 3, 4, 6, 9 Jimenez v. Allstate Ins. Co., 765 F. 3d 1161 (9th Cir. 2014) ........................................................................... 4, 5 Mangini v. Aerojet-Gen. Corp., 230 Cal. App. 3d 1125 (1991) ................................................................................ 6 Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 3 of 17 Page ID #:7856 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP McCrary v. Elations Co., LLC, No. 13-00242, 2014 WL 1779243 (C.D. Cal. Jan. 13, 2014) ............................... 10 Mejdrech v. Met–Coil Systems Corp., 319 F.3d 910 (7th Cir. 2003) .......................................................................... 1, 3, 8 O'Connor v. Boeing N. Am., Inc., 197 F.R.D. 404 (C.D. Cal. 2000) ............................................................................ 6 Olden v. LaFarge Corp., 383 F.3d 495 (6th Cir. 2004) .................................................................................. 8 Simpson v. Cal. PizzaKitchen, Inc., 989 F. Supp. 2d 1015 (S.D. Cal. 2013) ................................................................... 6 Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) ............................................................................ 1, 3 Torres v. Mercer Canyons Inc., 835 F.3d 1125 (9th Cir. 2016) ................................................................................ 7 Turner v. Murphy Oil USA, Inc., 234 F.R.D. 597 (E.D. La. 2006) ......................................................................... 4, 5 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ................................................................................................ 8 Williamson v. Geisler, No. CV 12-8056 DSF, 2013 WL 12087188 (C.D. Cal. Sept. 19, 2013) .......... 9, 10 Federal Rules of Civil Procedure Fed. R. Civ. P. 23 ............................................................................................... passim Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 4 of 17 Page ID #:7857 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP I. INTRODUCTION This case concerns environmental contamination and resulting impacts caused by Defendants’ activities at the Torrance Refinery. Courts have repeatedly held that common questions predominate in circumstances like this, where contamination is caused by a “single course of conduct which is identical for each of the plaintiffs.” Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988); see also, Mejdrech v. Met–Coil Systems Corp., 319 F.3d 910, 912 (7th Cir. 2003); In re Deepwater Horizon, 739 F.3d 790, 810–11 (5th Cir. 2014). For the property-based subclasses, Plaintiffs will use modeling and mapping to prove each contamination stream (air emissions and soil vapor, as well as particulates from the 2015 Explosion) has invaded surrounding properties. Because the Physical Exposure Subclass also raises common questions as to Defendants’ conduct and the scope of the contamination, it warrants certification as an issue class under Rule 23(c)(4)(A). Plaintiffs also satisfy Rule 23’s remaining requirements. Because common questions predominate, a class action is superior to successional re-litigation of the same issues. Sher Edling and Matern Law Group are qualified to represent the class. The numerosity requirement is satisfied because more than 40 properties are impacted by the Refinery’s contamination. And the proposed subclasses are ascertainable, as they are defined based on objective criteria related to the health risks posed by the contamination. II. ARGUMENT A. The proposed property-based subclasses satisfy commonality, predominance, typicality, and superiority. 1. The most important questions in this case have common answers. Commonality does not mean that every question of law or fact must be common to the Class; rather, “all that Rule 23(a)(2) requires is ‘a single significant question of law or fact.’” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013). Defendants do not dispute two of the common questions identified in Plaintiffs’ Motion: (1) whether the operation of the refinery constitutes an Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 5 of 17 Page ID #:7858 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP ultrahazardous activity; and (2) whether defendants acted negligently, recklessly, or maliciously with regard to design, inspection, maintenance of the Refinery. Mot. at 8-9. These common questions alone are sufficient to establish the threshold issue of commonality. See Deepwater Horizon, 739 F.3d at 810–11 (“requirement that class members have all ‘suffered the same injury’ can be satisfied by an instance of the defendant’s injurious conduct, even when…damages—are diverse.”). But these are not the only common questions capable of common answers. The most complex and important questions in this case have common answers: What has caused contaminants to be emitted from the Refinery into the air, water, and soil, and where have they gone? Was such contamination reasonably foreseeable? What should Defendants have done to prevent or mitigate it? Was Defendants’ conduct negligent? These issues, along with those discussed above, “represent the core” of Plaintiffs’ action, and “it would serve no purpose to force multiple trials to hear the same evidence and decide the same issues.” Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 388-89 (D. Colo. 1993) (finding predominance based on similar common questions). Therefore, common questions of law and fact predominate. Id. 2. Liability will be proven on a class-wide basis because Plaintiffs’ claims arise from a “single course of conduct.” Defendants’ attempt to recast the present case as a “multi-source, multi-party action” is unpersuasive. See Opp. 11-12. This case arises from a single source of harm: the Refinery. The key liability questions revolve around Defendants’ activities as the owners and operators of the Refinery, which has spewed contaminants into the air, water, and soil, causing Plaintiffs’ injuries. The fact that the Refinery is contributing to multiple contamination streams does not defeat predominance. As discussed infra Part II.D.3, each property-based subclass arises from one contamination stream, and presents a simple contamination theory. Contrary to Defendants’ argument, this case is readily distinguishable from Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011). In Gates, the plaintiffs Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 6 of 17 Page ID #:7859 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP alleged that they suffered lost property value from a contaminant that was dumped at various times, allegedly contaminating air and water via distinct exposure pathways, but lacked any direct evidence of contamination. Instructive here, in finding individual issues predominated, the Third Circuit explicitly distinguished those cases where plaintiffs “presented simpler theories of contamination or discrete incidents of contamination.” Id at 271.1 Here, each of the three property-based subclasses address injuries from a single identifiable and quantifiable contamination stream (i.e. air pollutants, soil vapor, or particulates from the 2015 explosion) resulting from a single course of conduct at the Refinery, and thus do not present the challenges that prevented certification in Gates. Second, that the contamination has continued unabated through the ownership tenures of two different Defendants does not preclude class certification. Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 385 (D. Colo. 1993) (common issues predominated for class arising out of leaked radioactive substances from weapons facility operated by two different entities over decades.) In fact, the Gates court explicitly distinguished In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., (“MTBE”) 241 F.R.D. 435, 442 (S.D.N.Y. 2007), in which property owners sued multiple companies operating a leaking gasoline pipeline that contaminated drinking water. Gates, 655 F.3d at 271–72. In MTBE, the district court found that common issues predominated, emphasizing the issue was a single accident “caused by a single or few actors who released the chemical within a specific geographic location’ 1 Specifically, Gates distinguished Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (certifying class for property damage to residents who lived near chemical waste burial site that leached toxic chemicals), and Mejdrech v. Met–Coil Systems Corp., 319 F.3d 910, 912 (7th Cir. 2003) (certifying an issue class on negligence and extent of contamination where the plaintiffs alleged the improper handling of chemicals contaminated the soil and groundwater beneath their properties and the “geographical scope of the contamination” was “not especially complex.”) Gates, 655 F.3d at 271-72. Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 7 of 17 Page ID #:7860 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP and thus warrants class treatment.” MTBE at 442 (emphasis added). Given that the present action arises out of a “single course of conduct,” Defendants cannot discount Deepwater Horizon, Exxon Valdez, and Turner as instructive examples of certification of classes involving toxic leaks and harm to nearby property interests, see Mot. 15, merely because they are “single-incident cases.” Opp. 11, n.11. Defendants offer no basis to conclude that the individualized issues here are more complex or significantly different from those circumstances.2 3. Causation turns on common proof. Plaintiffs will prove causation and injury on a class-wide basis. The Refinery’s history of groundwater contamination and subsequent contamination of the soil is well-documented. See Laton Decl. ¶¶ 11-15, Appx B, & Exs. 2-5. Defendants’ own consultants identified a Benzene and MTBE groundwater plume that extends beyond the boundaries of the Refinery contaminating the groundwater beneath the neighboring community, including at least the adjacent properties along Del Amo Boulevard.3 See id. ¶¶ 8-12. Plaintiffs’ expert, Dr. Laton, opined that Defendants’ 2 Defendants’ point that Deepwater Horizon and Exxon Valdez were raised in the settlement context, Opp. 11, n.11, is also unpersuasive. In Deepwater Horizon, despite BP having initially supported settlement, predominance was hotly contested on appeal, and the Fifth Circuit conducted a rigorous Rule 23(b)(3) predominance analysis. 739 F.3d 790, 815-818 (5th Cir. 2014). Further, the Ninth Circuit has cited Deepwater Horizon favorably in affirming class certification under Rule 23(b)(3), showing that its reasoning is not limited to settlement classes. Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1168 (9th Cir. 2014), cert. denied, 135 S. Ct. 2835 (2015), citing In re Deepwater Horizon, 739 F. 3d at 810–17 (rejecting argument that oil spill impacts were too disparate for class certification). That the court in Exxon Valdez certified a punitive damages class at Exxon’s behest does not change the fact that a landowner class was also certified for compensatory damages and tried as such. Exxon Shipping Co. v. Baker, 554 U.S. 471, 479 (2008). 3 Plaintiffs object to the Elliott Decl., Dkt. 150-7, to the extent it that purports to describe remediation efforts at the Torrance Refinery as Mr. Elliott lacks personal knowledge to the facts to which he avers. Cal. Evid. Code § 702. Further, the question of the extent of remediation and health hazard posed by current contamination goes to the merits and is not at issue here. Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 8 of 17 Page ID #:7861 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP plume maps were conservatively drawn, and artificially show contamination stopping at the property line. Id. ¶¶ 14-15. The question of the geographic scope of the plume and extent of contamination is “a calculable fact” that can be ascertained from soil and groundwater testing and modeling. Id. ¶ 20. This court has found that expert testimony based on dispersion modeling may be used to establish contamination on a class-wide basis. See e.g. Andrews v. Plains All Am. Pipeline, L.P., (“Andrews”) No. CV154113PSGJEMX, 2018 WL 2717833 at *9 (C.D. Cal. Apr. 17, 2018) (oil contamination capable of common proof via expert modeling). Indeed, Defendants do not question whether Plaintiffs’ experts can demonstrate where the contaminants have gone and to what degree, but argue instead that (1) contamination has not yet been fully mapped, and (2) contamination varies throughout the plume, such that injuries will vary by class member. Opp. 15. Neither argument defeats certification. First, as discussed at length in Plaintiffs’ motion, the mapping of the plume need not be complete at the class certification stage. Mot. 18- 19. The inquiry is whether the claim can be proven on a class-wide basis, not whether the intrusion has been established. This court dismissed similar arguments in Andrews, in which the court certified a property damage subclass arising from the 2015 Santa Barbara oil spill based on expert opinion delineating a reliable method to determine where the oil flowed. 2018 WL 2717833 at *5. Although the expert’s analysis had yet to be completed, this court found it was “acceptable at [that] stage to rely on a study that is subject to future refinement and development.” Id. Second, variations in impact do not defeat certification. See Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1168 (9th Cir. 2014) (“So long as the plaintiffs were harmed by the same conduct, disparities in how or by how much they were harmed [do] not defeat class certification.”); Turner v. Murphy Oil USA, Inc., 234 F.R.D. 597, 606 (E.D. La. 2006) (That “oil did not spread uniformly throughout the affected area” did not prevent certification of class of property owners impacts by the oil spill”). Defendants’ argument cannot be reconciled with the numerous classes Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 9 of 17 Page ID #:7862 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP which have been certified in cases involving toxic leaks harming nearby property interests. See Mot. 15 (collecting cases); Andrews, 2018 WL 2717833, at *10 (“the Ninth Circuit has repeatedly held that variability in injury and damages … need not preclude class certification.”)4 Andrews also upends Defendants’ arguments that the trespass and private and public nuisance claims are unsuitable for class treatment. Opp. 12-15. The Andrews court found that invasion “can be demonstrated with common proof” via the expert’s modeling of the oil spill and that predominance was satisfied as to the trespass claim. 2018 WL 2717833 at *10. The court similarly found common questions predominated as to liability for private nuisance, public nuisance, ultrahazardous liability and negligence. As in Andrews, liability may be established here through testing, modeling, and mapping. Class certification is warranted to avoid the burdensome serial litigation where, as here, “[c]ommon issues of liability, causation, and remedies not only predominate but overwhelm individualized issues.” Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 67 (S.D. Ohio 1991) (certifying class for property damage from air and water contamination from radioactive materials 4 Because the contamination giving rise to the Soil and Groundwater Contamination and Operational Emissions Subclasses is continuing, see Opp. 16, the individualized questions raised by variations in the plume is further mitigated by the fact that the subclasses will seek abatement, thereby mooting Defendants’ concerns about individualized diminution in value remedies and statute of limitations issues. Opp. 16-18; Mangini v. Aerojet-Gen. Corp., 230 Cal. App. 3d 1125, 1143 (1991) (“every continuation of the nuisance gives rise to a separate claim for damages caused by the nuisance.”) The individualized issues associated with determining diminution in value that led to decertification in O'Connor v. Boeing N. Am., Inc., 197 F.R.D. 404 (C.D. Cal. 2000) (cited Opp. 11, n. 11), is likewise inapposite, as the remediation remedy can be determined based on the extent of contamination as determined via mapping and modeling without any individualized assessment of the property. Even in the case of the Explosion Debris Subclass, where damages may require individualized proof, this does not defeat class action treatment. See MTBE 241 F.R.D. at 448 (damages for each individual class-member could be left “to individual follow-on proceedings.”); see also Mot. 19. Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 10 of 17 Page ID #:7863 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP plant).5 4. Plaintiffs’ claims are typical of the other class members. 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.’” Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1141 (9th Cir. 2016). The named class members are typical of the class because they were all harmed by Defendants’ tortious conduct and have suffered the same or similar injuries: lost use and enjoyment of property rights as to the first three subclasses, and personal injuries as to the last. See Mot. 9-12. Defendants, while challenging typicality in name, Opp. at 5, do not address the typicality of the claims themselves, instead pointing out that the class includes different individuals who have lived in Torrance for different periods of time, were in different places at the time of the explosion, or use their property differently. Id. at 13. Rule 23 is not so exacting—typicality is satisfied where, as here, the “gravamen” of the class claim is a common act or omission on the part of the Defendant such that the “nature” of the claims is common, and differences would not “threaten to become the focus of the litigation.” Torres, 835 F.3d at 1142. 5. A class action is superior to individual lawsuits. The superiority factors weigh strongly in favor of certification here, where 5 Defendants’ authority on this point is inapposite. Unlike here, in City of San Jose v. Superior Court (Opp. 12-13), the court could not assess injury from the airport’s operations on a class-wide basis. 12 Cal. 3d 447, 460-461 (1974). Moreover, the public nuisance claim in Simpson v. Cal. Pizza Kitchen, Inc. was premised on the use of trans fatty acids in frozen pizza products, not environmental contamination, and the court’s comments on class certification were dicta as the case was decided on a motion to dismiss. 989 F. Supp. 2d 1015, 1019, 1025 n.6 (S.D. Cal. 2013). Finally, unlike Cochran v. Oxy Vinyls LP, No. CIV. A. 306CV-364-H, 2008 WL 4146383, at *9 (W.D. Ky. Sept. 2, 2008), Defendants here raise no concerns of other facilities aside from the Refinery contributing to the alleged contamination. Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 11 of 17 Page ID #:7864 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP class treatment is likely the only viable option for most class members to have their day in court. Mot. 22. Defendants’ superiority arguments rest entirely on their predominance argument, Opp. 19-20, and fail for the same reasons set forth above. B. The Operational Emissions Subclass seeks injunctive relief and may be certified under Rule 23(b)(2). Per Defendants’ own documentation, the Refinery emits carcinogenic pollutants at unsafe levels. See AB 2588 Air Toxics “Hot Spots” Health Risk Assessment Revision ExxonMobil Torrance Refinery, Figure 6.6 Given the continuing nature of the Operational Emissions Subclass claims, this subclass will seek abatement in the form of mitigation measures at the Refinery to reduce future emissions. This relief is consistent with the Second Amended Complaint (“SAC”), which seeks injunctive relief, including abatement. SAC ¶¶ 72-73, 119-120. Since these measures “would provide relief to each member of the class,” certification under Rule 23(b)(2) is appropriate. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011). Because Rule 23(c)(3)(B)(5) mandates that each subclass be treated as its own class, the fact that other subclasses may seek other relief does not prevent certification of this subclass under Rule 23(b)(2). C. The Physical Exposure class should be certified as an issue class. The Physical Exposure Subclass will require answering many of the same questions of law and fact as the first three subclasses, including those related to the dispersion of contaminants, the health risks they pose, and Defendants’ breach of duty. Accordingly, this subclass should be certified as an issue subclass under Rule 24(c)(4)(A) as to the scope of the contamination and Defendants’ culpability. Further, if the Court declines to certify one of the property-based subclasses, Plaintiffs request the Court certify the issues as to liability as to those subclasses set forth in Plaintiffs’ Motion. Mot. 24-25; Cf. Mejdresh, 319 F.3d at 91 (certifying issue 6 Available at https://www.aqmd.gov/docs/default-source/compliance/ExxonMobil/ exxonmobil-ab2588-hot-spots-health-risk-assessment-revision.pdf?sfvrsn=8 Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 12 of 17 Page ID #:7865 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP class as to liability for soil contamination); Olden v. LaFarge Corp., 383 F.3d 495, 508-09 (6th Cir. 2004) (certifying issue class alleging minor property damage from dust). D. The subclasses satisfy Rule 23’s remaining requirements. 1. Plaintiffs’ counsel can adequately represent the class. The adequacy of class counsel under Rule 23(a)(4) “depends on the qualifications of counsel for the representatives, an absence of antagonism, a sharing of interests between representatives and absentees, and the unlikelihood that the suit is collusive.” Brown v. Ticor Title Ins. Co., 982 F.2d 386, 390 (9th Cir. 1992). Sher Edling’s bona fides include extensive representation in class actions and complex environmental litigation, including toxic tort actions such as this one. Dkt. 144 Ex. 1; See Edling Decl., ¶ 2. The Matern Law Group also has extensive class action experience, Mot. 13, and Defendants’ allegations of misconduct are unfounded. See Boxer Decl., ¶¶ 3-6. Moreover, Defendants raise no conflict of interest between class counsel and the putative class, the touchstone of the adequacy determination. Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1031 (9th Cir. 2012). As such, the Matern/Sher Edling team satisfies the mandatory elements of Rule 23(g)(1). 2. The proposed class is so numerous that joinder is impracticable. In excess of 40 properties are impacted by the Refinery’s contamination, entitling Plaintiffs to the presumption that joinder of all putative class members is impracticable. See In re Cooper Companies Inc. Sec. Litig., 254 F.R.D. 628, 634 (C.D. Cal. 2009) (numerosity presumed where class contains forty or more members). Defendants’ reference to Plaintiffs’ evidence, specifically Dr. Laton’s declaration, Opp. 22:12-15, belies their argument that Plaintiffs do not carry their evidentiary burden as to numerosity, see MTBE, 241 F.R.D. at 442 (The court “may make common-sense assumptions that support a finding of numerosity.”) Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 13 of 17 Page ID #:7866 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP Defendants’ authority is inapposite. In Williamson v. Geisler, the defendants rebutted the plaintiffs’ arguments that the class could not afford to litigate the issues individually by demonstrating that the putative class members were represented by unions that had already entered into settlement agreements as to their late paid wages. No. CV 12-8056 DSF (JCX), 2013 WL 12087188, at *3 (C.D. Cal. Sept. 19, 2013), aff’d, 644 F. App'x 777 (9th Cir. 2016). In contrast here, Defendants proffer no evidence undermining hardship. Moreover, Plaintiffs are not members of any representative organization, and the expert analysis that forms the basis for establishing causation and injury would likely be cost prohibitive on a one-off basis. 3. Plaintiffs’ subclasses are ascertainable. As set forth in the Motion, all subclasses are ascertainable because “the class definition[s] describe[] a set of common characteristics sufficient to allow a prospective plaintiff to identify himself or herself as having a right to recover based on the description.” See McCrary v. Elations Co., LLC, No. 13-00242, 2014 WL 1779243, at *8 (C.D. Cal. Jan. 13, 2014) (quotations omitted). Under Rule 23(c)(3)(B)(5), each subclass is treated as its own class in considering certification. Here, the geographic boundary of the Soil and Groundwater Contamination and Operational Emissions Subclasses are determined based on exceedance of safe levels of contamination. Mot. 6. The Explosion Debris Subclass boundary is the area where particulates landed from the explosion. Id. And the Physical Exposure Subclass includes persons who live or work within boundaries of any of the property-based subclasses. Id. Prospective plaintiffs can easily identify whether they or their property falls within the mapped boundary of each subclass. Defendants briefly argue in a footnote that the subclasses “lump together” plaintiffs with different harms caused by various routes of exposure. Opp. 19 n. 16. Not so. The property-based subclasses all address only one type of harm: lost use and enjoyment of property, and each arises out of one exposure stream. Specifically, the Soil and Groundwater Contamination Subclass addresses only soil vapor from Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 14 of 17 Page ID #:7867 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP soil and water contamination; the Operational Emissions Subclass addresses only air emissions; and, the Physical Exposure Subclass addresses only particulates from the February 18, 2015 Explosion. The Physical Exposure Subclass also addresses one type if harm: personal injury. It includes those individuals harmed from all three of the Refinery’s exposure streams (air, soil vapor, and the February 2015 Explosion) for the simple reason that health impacts are necessarily cumulative based on all exposures. Further, Defendants’ citation to Brooks v. Darling Int’l Inc., 2017 WL 1198542 (E.D. Cal. 2017) is inapposite. There, the court found that emissions modeling could likely support air pollution nuisance claims on a class-wide basis, and appeared to accept the plaintiff’s arguments concerning ascertainability, but denied certification because there was no “rationale behind plaintiffs’ choosing of a 1.5-mile radius as the geographic boundary for the proposed class.” Id. at 7, 14. Here, Plaintiffs developed class boundaries based on actual contamination levels and exceedance of objective health criteria, not an arbitrary radius. Mot. 6. Because the subclasses are drawn based on “objective fact,” they are ascertainable. E. Additional work conducted by Plaintiffs’ experts support leave to renew Plaintiffs’ Motion should the Court find additional factual basis is required. Per the Court’s denial of Plaintiffs’ Ex Parte Application, Dkt. 159, Plaintiffs rest their arguments on Reply on the evidence submitted with Plaintiffs’ Motion. While Rule 23 has been satisfied, should the Court find that the factual record does not support certification, Plaintiffs proffer the Supplemental Declarations of Dr. Laton and Dr. Clark solely as support for leave to renew their motion for class certification See Edling Decl., Exs. A (“Supp. Laton Decl.”) & B (“Supp. Clark Decl.”). The supplemental declarations bolster certification as they present evidence of liability, causation, and remedy on a class-wide basis. Dr. Clark and Dr. Laton identify reliable methodologies for determining and mapping the geographic scope Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 15 of 17 Page ID #:7868 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP of the debris from the 2015 explosion as well as air and soil contaminants. Supp. Laton Decl. ¶¶ 31-49; Supp. Clark Decl. ¶¶ 40-69. In addition, Plaintiffs have conducted additional soil and indoor air testing, which demonstrate extensive soil contamination and indoor-air pollution across the properties tested at unsafe levels, often multiple times federal and state health standards. Supp. Laton Decl. ¶¶ 13-30, Exs. 3-4. Dr. Clark and Dr. Laton assess health risks from chemicals of concern for air and soil contaminants and delineate the scope of air emissions and the contamination plume respectively, thereby identifying the geographical boundaries of the subclasses. Supp. Laton Decl. ¶¶ 31- 43, Ex. 10b; Supp. Clark Decl. ¶¶ 63-68, Exhibit 7. These maps demonstrate hundreds of properties within each of the subclasses. Supp. Laton Decl. ¶¶ 49; Supp. Clark Decl. ¶¶ 29, 66-67, Ex 7. Dr. Clark has identified that mitigation measures at the Refinery will remedy injuries suffered by the Operational Emissions Subclass as a whole. Supp. Clark Decl. ¶ 76-79. As to the Soil and Groundwater Contamination Subclass, Dr. Laton testified that remediation measures can be pursued both at the Refinery (to prevent further flow of contaminants) and at class members’ homes (to remediate existing contamination). At the homes, Dr. Laton has proposed four remediation schemes, each corresponding to a zone within the plume based on the health risks presented by the extent of contamination. Supp. Laton Decl. ¶¶ 44-54. All properties within each zone will be subject to the same set of remediation measures, thereby eliminating any need for property-specific analysis. As Plaintiffs’ experts offer a “reliable” methodology for showing property invasion via common proof, class certification is warranted. See Andrews 2018 WL 2717833, at *10. III. CONCLUSION For the foregoing reasons, certification should be granted. Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 16 of 17 Page ID #:7869 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO CERTIFY CLASS CASE NO. 2:17-CV-02477-DSF (SKX) 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHER EDLING LLP Respectfully submitted, CERTIFICATE OF SERVICE I hereby certify that on February 7, 2019, the foregoing document(s) was filed with the Clerk of the Court via CM/ECF. Notice of this filing will be sent by email to all registered parties by the Court’s electronic filing system. By: /s/ Matthew K. Edling Matthew K. Edling DATED: February 7, 2019 SHER EDLING LLP /s/ Matthew K. Edling MATTHEW K. EDLING MEREDITH S. WILENSKY TIMOTHY R. SLOANE MATERN LAW GROUP, PC MATTHEW J. MATERN JOSHUA D. BOXER TAGORE O. SUBRAMANIAM DANIEL J. BASS Attorneys for Plaintiffs Case 2:17-cv-02477-DSF-SK Document 161 Filed 02/07/19 Page 17 of 17 Page ID #:7870