Amended Complaint Filed No Fee

Cal. Super. - 6th Dist.June 25, 2021

©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O 21 CV383654 Santa Clara - Civil EARL L. HAGSTROM. ESQ. (SBN 150958) ehagstr0m@behblaw.com JOSHUA R. EDLIN, ESQ. (SBN 327914) jedlin@behblaw.com EDLIN, GALLAGHER, HUIE & BLUM LLP 500 Washington Street, Suite 700 San Francisco, CA 941 11 Telephone: (415) 397-9006 Facsimile: (415) 397-1339 Attorneys for Plaintiffs Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/23/2021 12:31 PM Reviewed By: R. Walker Case #21 CV383654 Envelope: 7115993 INDIAN HARBOR INSURANCE COMPANY, as subrogee 0fUS BWG SAN TOMAS PLAZA, LLC, as Successor by Assignment t0 BAY WEST DEVELOPMENT HOLDINGS, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA US BWG SAN TOMAS PLAZA, LLC, as Successor by Assignment to BAY WEST DEVELOPMENT HOLDINGS, LLC and INDIAN HARBOR INSURANCE COMPANY, VS. CHRISTOPHER SEHOON YI, JOAN J. YI, and JIN HO YI, d/b/a ELITE CLEANERS, ELIEZER MONARCH and LOTTIE S. MONARCH d/b/a ELITE CLEANERS, JOHN) CHUN and JANE CHUN d/b/a ELITE CLEANERS, JOHN J. TOTAH, an individual,) RONALD TATE, an individual, TMI ) PROPERTIES-77, a limited partnership, ) BOATMAN PROPERTIES, INC., a California) corporation, ESTATE OF FRANK H. ALVES, JR., DECEASED, ESTATE OF BELMIDA ALVES, DECEASED, ESTATE OF JOSEPH F. ALVES, DECEASED, ESTATE OF SARA ANN ALVES, DECEASED, ESTATE OF GARY G. GILLMOR, DECEASED, ALVES BROS. DAIRY, a general partnership, and DOES 1- 20, Inclusive, ) ) ) ) 3 Plaintiffs, ) ) ) ) ) ) ) Defendants. vavvvvvvvvvvv 3195354 Case No.: 21CV383654 FIRST AMENDED COMPLAINT for: (1) Nuisance (2) Trespass (3) Negligence (4) Negligence Per Se (5) Equitable and Implied Indemnity and Contribution (6) Recovery under California’s Hazardous Substance Account Act, Health & Safety Code § 25300, et seq. (7) Contribution under California’s Hazardous Substances Account Act; (8) Declaratogy Relief DEMAND FOR JURY TRIAL FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O PARTIES 1. Plaintiff, Indian Harbor Insurance Company (“Indian Harbor”), as subrogee 0f PlaintiffUS BWG San Tomas Plaza, LLC, as Successor by Assignment t0 Bay West Development Holdings, LLC (“US BWG”), is a Delaware corporation With its principle place of business in Stamford, Connecticut. Indian Harbor alleges that at all times herein mentioned, Plaintiff Indian Harbor was and is a corporation authorized and licensed to d0 business as an insurer by the Insurance Commissioner 0f the State 0f California and was and is doing business as an insurer in the State 0f California. US BWG and Indian Harbor, collectively, are referred t0 as Plaintiffs herein. 2. US BWG is a Delaware limited liability company with its principal place 0f business in San Antonio, Texas, and was and is authorized and licensed t0 d0 business in the State of California. It is the successor by assignment t0 Bay West Development Holdings, LLC. 3. US BWG owns property commonly known as 100 North San Tomas Aquino Road, Campbell, CA 95008 (the “Property”). The Property consists of consist 0f one (1) assessor parcel number (“APN”): 307-50-083, comprising a total of 9.23 acres. The parcel was developed With three single story commercial buildings, all constructed in 1971, and is known as San Tomas Plaza. A dry cleaning facility commonly known as Elite Cleaners operated 0n the Property in one 0f the three commercial buildings. The Elite Cleaners facility has been identified as having the address of 128 San Tomas Aquino Road, Campbell, CA 95008. 4. Plaintiffs are informed and believe, and therefore allege, that Defendants John J. Totah and Ronald Tate were individuals Who previously owned the subject Property until June 2, 1977, at which time it was conveyed Via individual grant deed to Defendant TMI Income Properties-77. 5. Plaintiffs are informed and believe, and therefore allege, that Defendant TMI Income Properties-77 was a Limited Partnership with its principal place 0f business in Newport Beach, California and was authorized and licensed to d0 business in the State of California. Plaintiffs are further informed and believe, and therefore allege, that Defendant TMI Income 3195354 2 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O Properties-77 owned the subject Property until November 3, 1980, when at that time it was conveyed Via grant deed to Boatman Properties, Inc. 6. Plaintiffs are informed and believe, and therefore allege, that Defendant Boatman Properties, Inc. was a corporation With its principal place of business in Costa Mesa, California, and was authorized and licensed t0 d0 business in the State 0f California. Plaintiffs are further informed and believe, and therefore allege, that Defendant Boatman Properties, Inc. owned the subj ect property until November 3, 1980, when it was at that time conveyed Via corporation grant deed to Joseph F. Alves, Sarah Ann Alves, Frank H. Alves, Jr., Belmida Alves, and Gary G. Gillmor. 7. Plaintiffs are informed and believes, and therefore allege, that at some time in 0r about September 1980, AL-MOR, a California general partnership, acquired an ownership interest in the subj ect property. 8. Plaintiffs are informed and believes, and therefore allege, that 0n September 28, 1981, AL-MOR leased building space in the subj ect property t0 Defendants Eliezer and Lottie S. Monarch, doing business as “Elite Cleaners,” for use 0f the premises as a professional dry cleaning plant. 9. Plaintiffs are informed and believes, and therefore allege, that 0n 0r about March 6, 1986, Defendants Lottie and Eliezer Monarch assigned their interest in the lease t0 Defendants John Chun (aka Chung 11 Chun) and Jane Chun (aka Hoe Jae Chun). 10. Plaintiffs are informed and believes, and therefore allege, that on 0r about November 20, 1987, Defendants Christopher Sehoon Yi Joan J. Yi, and Jin H0. Yi purchased the Elite Cleaners business from Defendants John and Jane Chun. 11. Plaintiffs are informed and believe, and therefore allege, that Defendant Belmida Alves, as surviving trustee 0f the Frank Alves Living Trust under Trust Agreement dated September 25, 1980, Peter Balbiani, as successor trustee of the Marital Trust under the Joseph F. Alves Living Trust Agreement dated September 25, 1980, and Peter Balbiani, as successor trustee 0f the Family Trust under the Joseph F. Alves Living Trust Agreement dated September 3195354 3 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O 25, 1980, collectively conveyed their interests in the subject property Via grant deed to Alves Bros. Dairy 0n September 22, 2009. 12. Plaintiffs are informed and believe, and therefore allege, that Defendant Alves Bros. Dairy was a general partnership that was authorized and licensed t0 do business in the State of California. Plaintiffs are further informed and believe, and therefore allege, that Defendant Alves Bros. Dairy and The Gary G. Gillmor 1995 Revocable Trust owned a partial interest in the property until their interests were conveyed Via grant deed to AL-MOR on or about September 30, 2009. 13. Plaintiffs are informed and believe, and therefore allege, that Al-Mor conveyed the subj ect property Via grant deed to Bay West Development Holdings, LLC on 0r about December 15, 2015. Bay West Holdings subsequently assigned the subject property to Plaintiff US BWG. 14. Estate of Frank H. Alves Jr., Deceased, is named as a Defendant herein to the extent 0f his estate’s assets whether distributed 0r undistributed and pursuant to California Probate Code §§ 550 through 555 to establish the decedent’s liability for Which he was protected by liability insurance policies. 15. Estate 0f Joseph F. Alves, Deceased, is named as a Defendant herein to the extent 0f his estate’s assets Whether distributed or undistributed and pursuant t0 California Probate Code §§ 550 through 555 t0 establish the decedent’s liability for Which he was protected by liability insurance policies. 16. Estate 0f Sarah Ann Alves, Deceased, is named as a Defendant herein to the extent 0f her estate’s assets Whether distributed or undistributed and pursuant t0 California Probate Code §§ 550 through 555 t0 establish the decedent’s liability for Which she was protected by liability insurance policies. 17. Estate of Gary G. Gillmore, Deceased, is named as a Defendant herein to the extent 0f his estate’s assets whether distributed 0r undistributed and pursuant to California Probate Code §§ 550 through 555 to establish the decedent’s liability for Which he was protected by liability insurance policies. 3195354 4 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O 18. Plaintiffs are informed and believe, and therefore allege, that Defendants Eliezer Monarch and Lottie Monarch were individuals formerly doing business as Elite Cleaners, a dry- cleaning business, at the Property from approximately 1981 t0 1986. 19. Plaintiffs are informed and believe, and therefore allege, that Defendants John Chun and Jane Chun were individuals formerly doing business as Elite Cleaners, a dry-cleaning business, at the Property from approximately 1986 t0 1987. 20. Plaintiffs are informed and believe, and therefore allege, that Defendants Joan J. Yi, Jin Ho Yi, and Christopher Sehoon Yi were individuals formerly doing business as Elite Cleaners, a dry-cleaning business, at the Property from approximately 1987 t0 2015. 21. Plaintiffs are informed and believe, and therefore allege, that DOES 1 through 20 operated as a dry-cleaning business commonly known as Elite Cleaners at the Property beginning no later than 1975 and up through 2015. Plaintiffs are ignorant 0f the true names and capacities of Defendants sued herein as DOES 1 through 20 and therefore sues said Defendants using fictitious names. Plaintiffs are informed and believe, and therefore allege, that each fictitiously named Defendant is in some manner responsible for the wrongs and damages herein alleged, and Plaintiffs will amend this Complaint once their true identities have been ascertained. Each reference in this Complaint t0 “Defendants” or a specifically named Defendant refers also t0 all Defendants named in the Complaint and all Defendants sued under fictitious names. JURISDICTION AND VENUE 22. Plaintiffs are informed and believe, and therefore allege, that the Defendants, and each of them, are legally responsible for costs and damages relating t0 releases 0f hazardous substances at the Property, Which is located Within the City of Campbell, California. 23. Venue is proper in this Court, as the Property that is the subject of this action and a substantial portion 0f the events 0r omissions giving rise t0 these claims occurred in this County. A11 0f Defendants’ activities, omissions and conduct pertinent t0 this action occurred in 0r near Campbell, California and continue t0 contaminate the environment in or near Campbell, Santa Clara County, California. /// 3195354 5 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O GENERAL ALLEGATIONS 24. Tetrachloroethylene (“PCE”) is an industrial solvent that is used in the dry- cleaning processes. Common synonyms for PCE include perc, perchlor, carbon bichloride, carbon dichloride, ethylene tetrachloride, perchloroethylene, perclene, perk, 1,1,2,2- tetrachloroethylene, and tetrachloroethene. PCE and TCE are chlorinated solvents 25. Over time, under anaerobic conditions present in the groundwater, reductive dechlorination 0f chlorinated solvents naturally occurs according to the following sequence: PCE degrades t0 trichloroethylene (“TCE”), which is turn degrades to 1,2 dichloroethene (“DCE”), which in turn degrades to Vinyl chloride, which finally degrades t0 ethane. 26. PCE, TCE, DCE, and Vinyl chloride are each a “solid waste” and “hazardous waste” as those terms are defined in federal law, 42 U.S.C. § 6903(5), (27), and well as California statutory law, Health & Saf. Code, §§ 251 15, 251 17, 25316. 27. A11 groundwater Within the State of California, including the groundwater in, at, around, and in the Vicinity of the Property and all groundwater that has been, and that may be, adversely impacted by nuisance conditions at and emanating from and within the Property is a “water of the state” pursuant t0 California Water Code § 13050(e). 28. Environmental data collected at the Property t0 date show elevated levels 0f certain volatile organic chemicals (“VOCS”), namely PCE, TCE, and Vinyl chloride, exceeding applicable environmental screenings levels. These hazardous wastes at and migrating within the Property are from Defendants’ commercial properties and/or business operations within or in the Vicinity 0f the Site. 29. Soil vapor sampling results show influent PCE concentrations exceeding applicable environmental screenings levels. 30. US BWG, at the request of the County of Santa Clara Department 0f Environmental Health (“the SCDEH”), recently commissioned its own environmental consultant t0 conduct indoor air sampling, which found indoor concentrations within the Property significantly exceeding commercial and residential environmental screening levels in all soil gas samples. 3195354 6 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O 3 1. Plaintiffs are informed and believe, and therefore allege, that from n0 later than 1975 until 2015, the Defendants, and each 0f them, owned and 0r operated a dry-cleaning business and 0r owned the Property upon which the dry cleaning business commonly known as Elite Cleaners located at 128 San Tomas Aquino Road, Campbell, CA, was operated on the subj ect Property. Plaintiffs are further informed and believe, and thereon allege, that Defendants, and each of them, failed t0 maintain the Property in such a manner as t0 prevent the release 0f hazardous materials from certain dry-cleanings operations at the Property. Chemicals, including PCE, used at the former Elite Cleaners business during the relevant times periods mentioned herein, were released, spilled or otherwise escaped on to the Property prior to US BWG’S acquisition 0f the Property and contaminated the Property. Plaintiffs are informed and believe, and therefore allege, that PCE and its associated byproducts and breakdown products, including, but not limited t0, TCE and Vinyl chloride, are present in the soil, groundwater, and soil vapor 0f the Property as a result of said releases. 32. Plaintiffs are informed and believe, and therefore allege, that the Defendants, and each of them, were responsible for the spills and releases, including, but not limited to, sudden and accidental releases 0fPCE and other contaminants into the environment at the Property. Plaintiffs are also informed and believe, and therefore allege, that the Yi’s, Chun’s and Monarch’s operation of a dry cleaning facility under the name Elite Cleaners, generated hazardous wastes as a byproduct 0f the dry-cleaning operation. Plaintiffs are also informed and believe, and therefore allege, that some of the hazardous wastes were discharged, disposed or released (including, but limited t0, sudden and accidental releases) onto the floors, and into the drains and sewers at the Property, Which has contaminated the Property and caused soil vapors containing hazardous substances t0 be released into the environment at the Property and other buildings at the Property. 33. The Yi’s, Chun’s, and Monarch’s, and each of them, were responsible for spills and releases, including, but not limited t0, sudden and accidental releases, 0fPCE and/or other contaminants into the environment at the Property Which has contaminated the Property. Plaintiffs are further informed and believe, and therefore allege, that the Yi’s, Chun’s, and 3195354 7 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O Monarch’s, and each of them, generated hazardous substances as a byproduct of the dry-cleaning operation. Plaintiffs are further informed and believe, and therefore allege, that some 0f the hazardous substances were discharged, disposed and/or released including, but not limited t0, sudden and accidental releases onto the floors, and into the drains and sewers at the Property, which contaminated the Property and caused the soil vapors containing hazardous substances to be released into the environment at the Property and other buildings at the Property. 34. US BWG discovered that the contamination exceeded regulatory screening levels in August 2018 and reported the contamination t0 the SCDEH. 35. The SCDEH has directed that US BWG take remedial action to investigate the Property and take remedial actions t0 mitigate potential soil, groundwater and soil vapor intrusion into and surrounding the Property and surrounding properties. US BWG has hired environmental consultants in accordance with the letter regarding Additional Site Subsurface Characterization and Soil Vapor Extraction Pilot Test work Plan dated July 29, 2020. The Property is under regulatory oversight by the SCDEH Site Mitigation Program. 36. US BWG has incurred costs t0 investigate the Property and t0 plan for and begin interim remedial actions. Indian Harbor has agreed t0 compensate US BWG for some 0r all 0f the past and future costs incurred by US BWG t0 respond and comply With SCDEH requirements and Will incur some or all future costs t0 comply with the SCDEH requirements. 37. Plaintiffs are informed and believe, and therefore allege, that the Defendants, and each 0f them, during their operation 0f a dry-cleaning business at the Property, and 0r ownership 0f the Property, purchased liability insurance policies for their dry-cleaning business and/or t0 protect their ownership interest in the Property and/or were named additional insureds on insurance policies purchased by their tenants. FIRST CAUSE OF ACTION Nuisance (Against All Defendants) 38. Plaintiffs re-allege each of the foregoing paragraphs 0f this Complaint and incorporates them herein by reference as though set forth in filll herein. 3195354 8 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O 39. US BWG has the inalienable right t0 own, enj0y and use the Property without interference by the Defendants. 40. Each of the Defendants, while owning, occupying, conducting operations on, providing, maintaining, and/or managing portions 0f the Property, had a duty at all times t0 avoid the discharge 0r release of hazardous substances in a manner that would cause injury t0 US BWG, the public and/or the environment. 41. At various times, the Defendants owned, used, controlled, and/or operated the Property in such a manner as to cause, or allow t0 be caused, release(s) of hazardous substances onto the Property. In addition, the Defendants, at various times, owned, used, controlled, and/or operated the Property in such a manner as to cause, 0r allow t0 be caused, release(s) 0f hazardous substances onto the Property. 42. The aforementioned conduct of the Defendants, and each of them, constitutes a nuisance within the meaning 0f Section 3479 0f the California Civil Code in that it interferes with the comfortable enjoyment 0fUS BWG’s Property and/or unlawfully obstructs the free use in the customary manner 0f the Property. US BWG has been continuously damaged by the condition wrongfully created and maintained by the Defendants. The contamination created by the Defendants has been and is continuing t0 adversely impact the use and/or value 0f the Property, as the impact of the nuisance caused by the Defendants’ acts and omissions. 43. The conduct of the Defendants also constitutes a private nuisance within the meaning of Section 3481 0f the California Civil Code in that it has and continues t0 impact the Property. 44. At all times mentioned herein the acts and/or omissions of the Defendants has caused hazardous substances, including but not limited to, PCE, TCE, Vinyl chloride and/or other toxic substances and contaminants t0 be discharged into the soil, groundwater and environment at, under and on the Property, and in fact the discharge 0f such substances and contaminants continues to contaminate the Property. 45. Through ownership, use and/or operations at the Property, the Defendants are legally responsible for the contamination 0n and underlying the Property. 3195354 9 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O 46. As a direct and proximate result of the Defendants’ wrongful conduct, US BWG has suffered economic damages including, but not limited to, lost use 0f the Property, denial 0f useful and quiet enjoyment 0f the Property, impairment 0f the Property, and significant costs and expense related to the investigation and remediation 0f the hazardous substances and contaminants 0n and under the Property. 47. As a further direct and proximate result of the acts and/or omissions 0f the Defendants, US BWG has suffered damages in an amount t0 be determined at the time 0f trial. SECOND CAUSE OF ACTION Trespass (Against All Defendants) 48. Plaintiffs re-allege each of the foregoing paragraphs 0f this Complaint and incorporates them herein by reference as though set forth in full herein. 49. Through ownership, use and/or operations at the Property, the Defendants are legally responsible for the contamination 0n and underlying the Property. 50. The foregoing acts and/or omissions of the Defendants created an intentional unauthorized presence upon the land When the Defendants failed t0 remove the contamination they caused, as the Defendants had a duty to remove such contaminations from the Property. 5 1. The acts and/or omissions of the Defendants constitute a trespass that has existed and continues t0 exist since the release, disposal and discharge 0f contamination of the Property. 52. As a direct and proximate result of the acts and/or omissions 0f the Defendants, US BWG has suffered damages in an amount to be determined at the time 0f trial. 53. Additionally, as a result of the Defendants’ trespass, Plaintiffs are also entitled t0 an order requiring the Defendants t0 remove fully the contamination from and remediate the Property in accordance with all applicable federal, state and local laws, enjoining from disposing of 0r allowing the continued release 0f additional contaminants because 0f the residual contamination left 0n the Property. /// /// /// 3195354 1 0 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O THIRD CAUSE OF ACTION Negligence (Against All Defendants) 54. Plaintiffs re-allege each of the foregoing paragraphs 0f this Complaint and incorporates them herein by reference as though set forth in full herein. 55. By Virtue of the facts and circumstances 0f the contamination in and around the Property as above alleges, the doctrine 0f res ipsa loquitor is applicable t0 the claim against each 0f the Defendants. Under such doctrine, the burden 0f proving that the Dry Cleaning operations 0f each of the Defendants 0r their agents were free from all negligence in connection With the release 0f hazardous substances that have migrated into the soil and groundwater beneath the Property is placed 0n Defendants and the burden 0f proving freedom from liability in connection with the contamination is placed 0n Defendants. In the event any 0r all 0f the Defendants fail t0 sustain their respective burdens, they are legally responsible for the damages here claimed and sued for. Under the circumstances, the contamination of the soil and groundwater beneath the Property would not have happened but for negligence on the part of Defendants, their agents, servants, and employees, in the manner in which they conducted their respective operations 0r activities at the Property. 56. In the alternative to the allegation that the doctrine 0f res ipsa loquitor is applicable against each of the Defendants, it is alleged that the contamination and resulting property damage and response costs suffered and sustained were due to the negligence of Defendants, and each 0f them, in the operation 0f their respective operations 0r activities at the Property, and that each of the Defendants is liable for negligence proximately causing the contamination. 57. Defendants, While occupying, owning or conducting operations at the Property, owed a duty t0 Plaintiffs to store, maintain, monitor, and remove PCE, TCE, Vinyl chloride, and other hazardous wastes in a safe and careful manner. Defendants also owed a duty t0 Plaintiffs t0 avoid storing, disposing of, releasing, or allowing t0 be released any contaminants in a manner that would cause injury to US BWG, the public, or the environment. /// 3195354 11 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O 58. Defendants, and each 0f them, breached their duties by negligently, carelessly, recklessly, and illegally installing, maintaining, monitoring, removing, and disposing PCE, TCE, Vinyl chloride, and other hazardous wastes in a way that contaminants were released into the environment. 59. Each 0f the Defendants failed promptly and diligently to contain and clean up the contamination caused by the release 0f PCE, TCE, Vinyl chloride, and other hazardous wastes caused by the Defendants. 60. As a direct and proximate result 0f the acts, omissions, and conduct 0f each 0f the Defendants, Plaintiff has suffered and continued to suffer damages t0 their property, and t0 the environment as alleged herein. The above-described acts, omissions, and conduct 0f each 0f the Defendants, including the negligence and trespass committed by each of the Defendants, are and have been Without the consent, knowledge, against the Will, and in continued Violation 0f the rights 0fUS BWG. FOURTH CAUSE OF ACTION Negligence Per Se (Against All Defendants) 61. Plaintiffs re-allege each of the foregoing paragraphs 0f this Complaint and incorporates them herein by reference as though set forth in full herein. 62. Defendants were obligated t0 comply With all applicable laws, regulations, rules and orders 0f every governmental agency having jurisdiction 0f the Defendants’ respective facilities and properties or the activities or uses t0 be conducted at the Property, including without limitation, those relating t0 health, safety and environmental protection. 63. The release 0r disposal of PCE, TCE, Vinyl chloride, and other hazardous wastes as alleged herein constitutes a nuisance and public nuisance as the release 0r disposal is a Violation of California Water Code sections 13050(m), 13350, and 13387, California Health and Safety Code sections 541 1, 541 1.5, and 11755, California Fish and Game Code section 5650, and Civil Code sections 3479-3480, the purpose 0f Which are t0 set a standard of care or conduct t0 protect the public and the environment from the type of improper activities engaged in by Defendants. Therefore, such improper activities and Violations constitute negligence per se. 3195354 12 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O 64. The injury and damages that Plaintiffs complain 0f herein resulted from the kind 0f occurrence the statutory provisions were designed t0 prevent. 65. US BWG is part 0f the class of persons the statutory provisions were intended t0 protect, as US BWG is an innocent bystander that has been adversely impacted by Defendant’s Violations of said statutory provisions. 66. Defendants have failed to comply with federal, state, local, and common law. As a direct and proximate result of Defendants’ failure to comply With applicable statutory provisions, US BWG has incurred and will continue to incur expenses, losses, injury and damages, including consequential, incidental and general damages t0 be proven at trial. FIFTH CAUSE OF ACTION Equitable and Implied Indemnity and Contribution (Against All Defendants) 67. Plaintiffs re-allege each of the foregoing paragraphs 0f this Complaint and incorporates them herein by reference as though set forth in filll herein. 68. Through use and/or operations at the Property, the Defendants are legally responsible for the contamination 0n and underlying the Property. 69. As a direct and proximate result 0f the acts and/or omissions 0f the Defendants set forth above, US BWG has and Will continue t0 expend monies to investigate, test, and clean up the contamination on and under the Property. US BWG has paid for and conducted such activities and therefore has incurred and will continue t0 incur costs and expenses for the past, current and future investigation, clean up, remediation and removal actions associated With the hazardous substances and contaminants at, on and under the Property, pursuant t0 applicable law and regulations, which should have been paid by the Defendants. 70. US BWG is entitled to contribution from the Defendants under California Civil Code section 1432 0r indemnification under state or federal law for any liability arising from the contamination 0f the Property. 71. US BWG is entitled t0 indemnity from the Defendants for all such monies expended and t0 be expended by US BWG t0 remedy the contamination 0n and underlying the Property, and for all other damages incurred by US BWG. 3195354 1 3 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O SIXTH CAUSE OF ACTION Response Costs under the Hazardous Substance Account Act, California Health & Safety Code section 25300 et seq. (Against All Defendants) 72. Plaintiffs re-allege each of the foregoing paragraphs 0f this Complaint and incorporates them herein by reference as though set forth in full herein. 73. The Carpenter-Presley-Tanner Hazardous Substance Account Act, California Health & Safety Code section 25300 et seq. (“HSAA”) provides for an action by parties Who have incurred removal or remediation costs under the HSAA. Pursuant t0 the HSAA, such parties may seek contribution or indemnity for those costs from any person who is a liable person Within the meaning 0f Health & Safety Code § 25323.5. 74. Plaintiffs are informed and believe, and therefore allege, that Defendants, and each 0f them, are “person[s]” as defined in Cal. Health and Safety Code section 25319. 75. Plaintiffs are informed and believe, and therefore allege, that Defendants, and each 0f them, are “responsible part[ies]” as defined in Cal. Health and Safety Code section 25323.5. 76. Plaintiffs are informed and believe, and therefore allege, that Defendants are persons Who are liable under such sections Within the meaning of section 25323.5 0f the California Health and Safety Code. 77. Plaintiffs are informed and believe, and therefore allege, that as a direct and proximate result of the acts, omissions and/or conduct 0f the Defendants, and each 0f them, which caused or contributed t0 the release 0f hazardous substances at, under and/or around the Property, US BWG has incurred response costs in accordance with HSAA. 78. Plaintiffs have satisfied any and all conditions precedent under California law or otherwise t0 the undertaking of response actions and incurring of response costs related t0 the Property and the recovery 0f such costs from Defendants, having been ordered t0 do so by SCDEH. 79. Pursuant to California Health and Safety Code § 25363(e), Defendants, and each of them, are liable t0 Plaintiffs for all of the response costs incurred 0r t0 be incurred as a result of releases at and from the Property. 3195354 14 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O SEVENTH CAUSE OF ACTION Contribution under the Hazardous Substance Account Act, California Health & Safety Code section 25300 et seq. (Against All Defendants) 80. Plaintiffs re-allege each of the foregoing paragraphs 0f this Complaint and incorporates them herein by reference as though set forth in full herein. 8 1. Plaintiffs are informed and believe, and therefore allege, that Defendants, and each of them, is a “person” as defined in the HSAA, Cal. Health and Safety Code section 25319. 82. Plaintiffs are informed and believe, and therefore allege, that Defendants, and each 0f them, are “responsible part[ies]” as defined in Cal. Health and Safety Code section 25323.5. 83. Plaintiffs are informed and believe, and therefore allege, that Defendants are persons who are liable under such sections Within the meaning of section 25323.5 of the California Health and Safety Code. 84. Plaintiffs have and may in the future be compelled to incur attorney’s fees, costs, expenses, and in the future may incur liability by reasons 0f settlement, judgment and/or defense in this action. 85. Plaintiffs may in the future be compelled to incur future costs necessary t0 monitor, assess, and evaluate the release 0r threatened release 0f hazardous substances at, and near, the Property and surrounding areas. 86. Accordingly, Plaintiffs are entitled t0 contribution from Defendants, up t0 an amount to be proven at trial 0r otherwise, pursuant to California Health and Safety Code section 25363. 87. Upon the filing 0f such claim, or at such time as is required, Plaintiffs will give written notice t0 the Director 0f the California Environmental Protection Agency, Department 0f Toxic Substances Control, pursuant to Health & Safety Code Section 25363(d). EIGHTH CAUSE OF ACTION Declaratory Relief (Against All Defendants) 88. Plaintiffs re-allege each of the foregoing paragraphs 0f this Complaint and incorporates them herein by reference as though set forth in full herein. 3195354 1 5 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O 89. Plaintiffs are informed and believe, and 0n that basis allege, that all legal liability, whether arising from federal or state statutory law, 0r from common law, which may in the future be asserted by any entity 0r individual, arising from or related to the contamination of and at the Property, as alleged, is the sole and actual liability, which liability is joint and several liability among Defendants. 90. Therefore, Plaintiffs are entitled t0 a judicial declaration that Defendants are liable to indemnify Plaintiffs for all past, current and future response costs and other damages suffered by Plaintiffs as a result 0f the contamination at the Property, 0r, in the alternative, that Defendants are liable to contribute t0 and reimburse Plaintiffs for such damages and costs including, without limitation, costs 0r damages awarded in legal 0r administrative actions, costs 0f compliance With any judicial 0r administrative order, and costs of litigation including attorneys’ fees. 91. A declaratory judgment is appropriate as a declaratory judgment Will obviate the need for time-consuming multiple lawsuits as Plaintiffs continue t0 incur costs and expenses t0 comply with the SCDEH order to investigate and remediate the contamination caused by Defendants and allow Plaintiffs to recover past costs and expenses thereby providing a complete resolution 0f the differences between the parties. WHEREFORE, Plaintiffs pray for judgment against the Defendants, and each of them, as follows: PRAYER FOR RELIEF 1. For general economic and consequential damages in an amount to be determined at the time 0f trial; 2. For costs of the investigation, testing, remediation and cleanup of the contamination at, 0n and/or under the Property in an amount t0 be determined at the time of trial; 3. For diminution of the fair market value of the Property in an amount t0 be determined at the time of trial; 4. For loss 0f use 0f the Property in an amount t0 be determined at the time of trial; /// 3195354 1 6 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O 5. For prejudgment interest 0n all sums expended in an amount to be determined at the time of trial; 6. For an Order directing the Defendants, and each of them, t0 indemnify Plaintiffs for all sums expended 0r t0 be expended for the testing, investigation and/or cleanup 0f the contamination at, 0n and/or under the Property and for damages suffered by Plaintiffs, including, Without limitation, all necessary response costs; 7. For a preliminary and permanent injunction directing the Defendants, and each of them, and their employees, agents and/or persons acting in concert with them, t0 investigate and remediate completely the contamination at, 0n and/or under the Property in an expeditious manner; 8. For a judicial determination that Defendants are jointly and severally liable for the abatement 0f the imminent and substantial endangerment to human health 0r the environment that may be present by Defendants’ use and disposal of “solid wastes” and “hazardous wastes” as alleged above; 9. For a declaration that Defendants are liable under HSAA § 25323.5 and are liable t0 Plaintiffs in contribution and/or indemnity under HSAA § 25323.5 for all past, present, and future response costs and other costs Which may be incurred by Plaintiffs in connection With the Property. 10. For a declaration that Defendants are obligated to pay to Plaintiffs all future response costs and any other costs incurred by Plaintiffs hereafter in response, removal, or remedial efforts incurred pursuant t0 law or t0 the order 0f any governmental agency with jurisdiction over the Property. 11. For attorneys’ fees and costs 0f suit; and 12. For such other and further relief the Court deems just and proper. /// /// /// /// 3195354 1 7 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O Date: 3195354 JURY TRIAL DEMAND Plaintiffs hereby demand trial by jury 0f any and all issues so triable. August 23, 2021 BASSI, EDLIN, HUIE & BLUM LLP5M °EARL L. HAGSTROM JOSHUA R. EDLIN Attorneys for Plaintiffs INDIAN HARBOR and US BWG SAN TOMAS PLAZA, LLC, as Successor by Assignment t0 BAY WEST DEVELOPMENT HOLDINGS, LLC B 18 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O R33 US BWG SAN TOMAS PLAZA. LLC. et a1 v. Christonher Sehoon Yi. et al Santa Clara County Superior Court Case No. 21CV383654 PROOF OF SERVICE - CCP 81013606) STATE OF CALIFORNIA/COUNTY OF San Francisco I am a citizen of the United States and an employee in the County of San Francisco. I am over the age 0f eighteen (1 8) years and not a party t0 the Within action. My business address is EDLIN, GALLAGHER, HUIE + BLUM LLP, 500 Washington Street, Suite 700, San Francisco, California 941 1 1. On August 23, 2021, I served the Within: FIRST AMENDED COMPLAINT | X BY MAIL: Documents enclosed in an envelope were deposited in the mail at San Francisco, California. I am readily familiar with the firm’s practice for collection and processing of correspondence for mailing. It is deposited With the U.S. Postal Service 0n that same day in the ordinary course of business. On the following parties: SEE ATTACHED SERVICE LIST I declare under penalty of perjury that the foregoing is true and correct and that this document is executed 0n August 23, 2021. WW NOLENE CHETTY 3195354 1 9 FIRST AMENDED COMPLAINT ©OOQONLIIJ>UJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONQUl-bUJNi-‘OKDOOQONUl-bUJNP-‘O SERVICE LIST US BWG SAN TOMAS PLAZA, LLC, et al v. Christopher Sehoon Yi, et al Santa Clara County Superior Court Case N0. 21CV383654 Christopher S. Yi Joan J. Yi 2265 Via Orista 2265 Via Orista Morgan Hill, Ca 95037 Morgan Hill, Ca 95037 Jin Ho Yi dba Elite Cleaners TMI Properties-77 4240 St, Croix Court Timothy & Michelle Keller San Jose, CA 95 1 18 3535 Elverta Road, Suite A1 Antelope, CA 95843 John J. Totah 1673 Las Piedras Court Los Gatos, CA 95032 3195354 20 FIRST AMENDED COMPLAINT