Tesoro Refining And Marketing Company Llc et al v. City of Long Beach, A California Municipality et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.February 6, 2017

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 4850-9310-1378.1 i DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD LEWIS BRISBOIS BISGAARD & SMITH LLP JAMES A. GEOCARIS, SB# 65904 E-Mail: James.Geocaris@lewisbrisbois.com 650 Town Center Drive, Suite 1400 Costa Mesa, California 92626 Telephone: 714.545.9200 Facsimile: 714.850.1030 LEWIS BRISBOIS BISGAARD & SMITH LLP CLAIRE HERVEY COLLINS, SB# 233890 E-Mail: Claire.Collins@lewisbrisbois.com MARSHAL WILKE, SB# 265474 E-Mail: Marshal.Wilke@lewisbrisbois.com 633 West 5th Street, Suite 4000 Los Angeles, California 90071 Telephone: 213.250.1800 Facsimile: 213.250.7900 Attorneys for Defendant COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION TESORO REFINING & MARKETING COMPANY LLC, a Delaware limited liability company; TESORO SOCAL PIPELINE COMPANY LLC, a Delaware limited liability company, Plaintiffs, vs. CITY OF LONG BEACH, a California municipality; COUNTY OF LOS ANGELES, a California municipality; CRIMSON PIPELINE, L.P., a Colorado limited partnership; ENI OIL & GAS INC. (f/k/a GOLDEN EAGLE REFINING COMPANY, INC.), a Texas corporation; GETTY OIL COMPANY, a California corporation; LONG BEACH WATER DEPARTMENT, a California municipal entity; LOS ANGELES COUNTY SANITATION DISTRICT, a California municipal entity; PLAINS ALL AMERICAN PIPELINE, L.P. a Texas partnership (as successor-in- CASE NO. 2:16-CV-06963-RGK (FFMx) The Hon. R. Gary Klausner DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT FOR LACK OF SUBJECT-MATTER JURISDICTION (RULE 12B(1)) AND FOR FAILURE TO STATE A CLAIM (RULE 12B(6)); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: March 13, 2017 Time: 9:00 A.M. Crtrm.: 850 NO FEE DUE GOV'T CODE § 6103 Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 1 of 16 Page ID #:339 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 4850-9310-1378.1 ii DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD interest to PPS HOLDING COMPANY); UNION OIL COMPANY OF CALIFORNIA, a California corporation, Defendants. Complaint Filed: September 16, 2016 Trial Date: None Set TO THE COURT, AND TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on March 13, 2017, at 9:00 a.m., or as soon thereafter as the matter may be heard, in the courtroom of the Honorable R. Gary Klausner of the above-entitled Court located at 255 East Temple Street, Los Angeles, CA 90012, Courtroom 850, 8th Floor, Defendant COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY, erroneously sued as LOS ANGELES COUNTY SANITATION DISTRICT (“Moving Defendant”) will move for an order dismissing the Complaint filed herein by Plaintiffs TESORO REFINING & MARKETING COMPANY LLC, and TESORO SOCAL PIPELINE COMPANY LLC (the “Complaint”) [Docket #1] against the Moving Defendant, and for such other relief as the Court deems proper. The Motion will be made on the ground that (1) the Court lacks subject- matter jurisdiction over the claims alleged against the Moving Defendant in the Complaint and (2) the Complaint fails to state a claim upon which relief can be granted against the Moving Defendant, due to Plaintiffs’ failure to comply with the applicable requirements of California’s Government Claims Act. This Motion is made pursuant to FRCP 12(b)(1) and 12(b)(6), and is based upon this Notice and the Memorandum of Points and Authorities in support thereof, and all other pleadings and papers on file in this action, and upon such other and further materials and argument as may be presented at or before the hearing on this motion. This motion is made following the conference of counsel pursuant to Local Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 2 of 16 Page ID #:340 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 4850-9310-1378.1 iii DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD Rule 7-3, which consisted of multiple telephone calls between counsel beginning on December 22 and ending on January 24. While counsel made progress in negotiating an approach that would have avoided this Motion, counsel could not fully agree by Moving Defendant’s time to respond to the Complaint. DATED: February 6, 2017 JAMES A. GEOCARIS CLAIRE HERVEY COLLINS MARSHAL P. WILKE LEWIS BRISBOIS BISGAARD & SMITH LLP By: /s/ James A. Geocaris James A. Geocaris Attorneys for Defendant COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 3 of 16 Page ID #:341 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 4850-9310-1378.1 iv DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD TABLE OF CONTENTS Page I. INTRODUCTION AND SUMMARY OF ARGUMENT ...............................1 II. FACTUAL ALLEGATIONS AND RELIEF SOUGHT IN THE COMPLAINT....................................................................................................2 A. Tesoro’s Long Beach Site and the Regional Board’s Cleanup and Abatement Order.....................................................................................2 B. Tesoro’s Notice of Claim, the District’s Rejection, and this Lawsuit’s Filing ......................................................................................3 C. The Complaint’s State Claims and Relief Sought For Them .................4 III. ARGUMENT ....................................................................................................4 A. Standard for Motion to Dismiss..............................................................4 1. Dismissal Lack of Subject Matter Jurisdiction (Rule 12(b)(1))........................................................................................4 2. Dismissal For Failure to State a Claim Upon Which Relief May be Granted (Rule 12(b)(6))...................................................5 B. Because Tesoro Filed its Lawsuit over Six Months after the District Rejected its Claims, All the Complaint’s State Law Claims Must Be Dismissed.....................................................................5 C. Because Tesoro’s Claims Notice Failed to Describe Tesoro as Having Trespass or Nuisance Claims against the District, the Complaint’s Trespass and Nuisance Claims Cannot Proceed ................7 IV. CONCLUSION ...............................................................................................10 Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 4 of 16 Page ID #:342 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 4850-9310-1378.1 v DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD TABLE OF AUTHORITIES Cases Star Insurance Co. v. Los Angeles Unified School District, 2004 U.S. Dist. LEXIS 31363 (C.D. Cal. 2004)..............................................8 Calhoun v. United States, 475 F.Supp. 1 (S.D. Cal. 1977) ........................................................................5 Calhoun v. United States, 604 F.2d 647 (9th Cir. 1979)............................................................................5 Coppola v. Smith, 935 F.Supp.2d 993 (N.D. Cal. 2013) ...............................................................9 Doe 1 v. City of Murietta, 102 Cal. App.4th 899 (Cal. Ct. App. 2002) ...............................................8, 10 E.H. Wilson v. Interlake Steel Co., 32 Cal.3d 229 (Cal. 1982) ................................................................................9 Gatto v. Ventura County Community College District, 98 Cal.App.4th 744 (Cal. Ct. App. 2002) ........................................................6 Koll-Irvine Center Property Owners Association v. County of Orange 24 Cal.App.4th 1036 (Cal. Ct. App. 1994) ......................................................9 Loehr v. Ventura Community College District, 147 Cal.App.3d 1071 (Cal. Ct. App. 1983) .................................................6, 7 Lozada v. City and County of San Francisco, 145 Cal.App.4th 1139 (Cal. Ct. App. 2006) ............................................5, 6, 7 Watson v. State of California, 21 Cal.App.4th 836 (Cal. Ct. App. 1993) ........................................................8 Westlands v. NRDC, 276 F.Supp.2d 1046 (E.D. Cal. 2003)..............................................................5 Statutory Authorities Cal. Bus. & Prof. Code §17200 ...................................................................................4 Cal. Gov. Code §§905 .................................................................................................5 Cal. Gov. Code §945.4 ........................................................................................2, 5, 7 Cal. Gov. Code §945.6 ....................................................................................2, 4, 5, 6 Rules and Regulations Fed. R. Civ. P. 12(b) ................................................................................................4, 5 Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 5 of 16 Page ID #:343 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 4850-9310-1378.1 1 DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW I. INTRODUCTION AND SUMMARY OF ARGUMENT The Complaint for Damages and Injunctive Relief (“Complaint”) by Plaintiffs Tesoro Refining & Marketing Company LLC and Tesoro SoCal Pipeline Company LLC (collectively “Tesoro”) [Docket #1] concerns subsurface contamination in part of Long Beach (the “Site”). In September 2014, the Los Angeles Regional Water Quality Control Board (“Regional Board”) issued a Cleanup and Abatement Order (“Cleanup Order”) requiring Tesoro to investigate and cleanup contamination at and around the Site. Tesoro’s Complaint asserts claims against ten defendants, alleging that they all have pipelines in or near the Site, and that their pipeline operations have contaminated the Site. See, e.g., Complaint, ¶¶33-37. Tesoro demands that the defendants pay past and future costs of investigating and cleaning up the Site. Complaint, Prayer for Relief, ¶¶1-3. Moving Defendant County Sanitation District No. 3 of Los Angeles County (incorrectly sued as Los Angeles County Sanitation District) (“District”) and three other defendants are public agencies (Complaint, ¶¶4, 5, 9 and 10), and nine of Tesoro’s ten claims are based on California law (Complaint, First and Third through Tenth Causes of Action). Tesoro cannot pursue these state law claims in court against the District if it failed to comply with the Government Claims Act’s requirements for presentation of claims for money or damages to public agencies. Cal. Gov. Code, §§910-913.2 and 945-949. Tesoro admits in the Complaint that Tesoro presented a Government Claims Act claim to the District on February 5, 2015 (the “GCA Claim”) which was rejected by the District on March 9, 2015 and noticed on March 10, 2015. But as to the District, Tesoro failed to comply with two requirements of the Government Claims Act which are jurisdictional prerequisites to maintaining an action. First, as to all of its state law claims, Tesoro failed to file this lawsuit within six months of the District’s written rejection of the GCA Claim. These claims are therefore outside Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 6 of 16 Page ID #:344 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 4850-9310-1378.1 2 DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW of the statute of limitations established by the Government Claims Act. Cal. Gov. Code, §945.6(d). Second, as to the four trespass and nuisance claims, the GCA Claim failed to assert any trespass or nuisance claims against the District for the contamination at the Site. The Government Claims Act requires a claimant to present all claims for monetary relief (including trespass and nuisance), and have those claims considered by the affected agency, before the claimant may bring suit. Cal. Gov. Code, §945.4. Because Tesoro failed to meet the statute of limitations and the claims presentation requirements imposed by the Government Claims Act, its nine state law claims must be dismissed. II. FACTUAL ALLEGATIONS AND RELIEF SOUGHT IN THE COMPLAINT A. Tesoro’s Long Beach Site and the Regional Board’s Cleanup and Abatement Order The Complaint alleges that Tesoro use three subterranean pipelines along Golden Avenue between Baker Street and West Wardlow Street in Long Beach to distribute oil and petroleum products to its customers. Complaint, ¶¶1, 22 and 23. Tesoro acquired its interest in these pipelines in June 2013 following a purchase of assets from BP Pipelines (North America), Inc., Atlantic Richfield Company and ARCO Terminal Services Corporation (collectively “BP”). Complaint, ¶¶23 and 26. ARCO had owned and operated these pipelines since 1922, 1927 and 1945. Complaint, Ex. C, p. 46. In January and May 2012, the Regional Board issued orders to ARCO to investigate contamination around certain sections of the pipelines that Tesoro acquired in 2013. Complaint, Ex. C, p. 49. In April 2013, the Regional Board made public a tentative Cleanup and Abatement Order for contamination at and around the Site. Complaint, Ex. C, p. 50. In June 2013, under its asset purchase agreement with BP, Tesoro assumed BP’s investigation and remediation responsibilities for the Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 7 of 16 Page ID #:345 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 4850-9310-1378.1 3 DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW Site. Complaint, ¶26. On September 18, 2014, the Regional Board issued the Cleanup Order to BP to investigate further and to remediate contaminants in the Site’s subsurface. Complaint, ¶25 and Ex. C, pp. 49-67. In the Cleanup Order, the Regional Board found that the three pipelines Tesoro acquired in 2013 are a source of the contaminants at the Site. Complaint, Ex. C, p. 52. In response to the Cleanup Order, Tesoro allegedly began to spend funds to investigate areas in and around the Site in September 2014. Complaint, ¶¶29, 31 and 50. Tesoro alleges that the District and the other defendants have each owned or operated pipelines that run, in part, under Baker Street or Golden Avenue in Long Beach. Tesoro alleges further that each of defendants’ pipelines in the Site’s vicinity has caused or contributed to the contamination that exists there. Complaint, ¶¶3, 24, 27 and 33. B. Tesoro’s Notice of Claim, the District’s Rejection, and this Lawsuit’s Filing On February 5, 2016, Tesoro presented its GCA Claim to the District for “remedial response, indemnity and/or contribution” for the role the District’s pipeline allegedly played “in causing or contributing to the contamination Tesoro has to date been solely responsible for remediating.” Complaint, ¶53 and Ex. C, pp. 40-41. The GCA Claim asserted that Tesoro seeks “remedial response, contribution and indemnity” from the District in the amount of “$2,000,000.00 to date; $8,000,000.00 estimated total.” Complaint, Ex. C, pp. 38 and 41. The GCA Claim did not mention any trespass or nuisance claim that Tesoro had against the District, or any interest Tesoro had in any real property. Complaint, Ex. C, pp. 35-42. On March 10, 2016, the District rejected in writing Tesoro’s “claim alleging damages and demanding remedial response, indemnity, and contribution for liability arising out of or relating to groundwater contamination...” Complaint, ¶55 and Ex. E. The District’s rejection letter warned Tesoro that: “[Y]ou have only 6 months Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 8 of 16 Page ID #:346 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 4850-9310-1378.1 4 DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW after the date this notice was personally delivered or deposited in the mail to file a court action on the claim. See Government Code §945.6.” Complaint, Ex. E. On September 16, 2016, Tesoro filed its Complaint to commence this action. This filing came six months and six days after the District rejected the GCA Claim. C. The Complaint’s State Claims and Relief Sought For Them The nine state law claims in the Complaint all seek monetary relief. Six of the nine seek damages, past or future responses costs, expenses, or other monetary relief only. Complaint, First (California Superfund), Third (Contribution), Fourth (Declaratory Relief), Fifth (Equitable Indemnity), Sixth (Trespass) and Ninth (Nuisance Per Se) Causes of Action. The other three seek both monetary relief and a form of extraordinary relief. Complaint, Seventh (Private Nuisance), Eighth (Public Nuisance) and Tenth (Business & Professions Code §17200) Causes of Action. The Prayer for Relief has eight items. Items 1, 2, 3 and 7 are all for monetary relief: “1. For damages incurred to investigate and remediate the affected areas…; 2. For damages to Tesoro’s enjoyment of its interests in property…; 3. For an order requiring DEFENDANTS to assume the cost of remediation…and to reimburse Tesoro for amounts already expended;…7. Prejudgment interest…” Only Item 4 seeks extraordinary relief, an injunction to halt the defendants’ nuisance and trespass. Items 5, 6 and 8 are for attorneys’ fees, costs, and other and further relief. Complaint, p. 24. III. ARGUMENT A. Standard for Motion to Dismiss 1. Dismissal For Lack of Subject Matter Jurisdiction (Rule 12(b)(1)) Federal Rule of Civil Procedure 12(b) provides that “a party may assert the following defenses by motion… (1) lack of subject matter jurisdiction.” Courts applying Rule 12(b)(1) have held that “A motion to dismiss an action for failure to Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 9 of 16 Page ID #:347 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 4850-9310-1378.1 5 DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW state a claim or for want of subject matter jurisdiction may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Calhoun v. United States, 475 F.Supp. 1, 2-3 (S.D. Cal. 1977), aff’d Calhoun v. United States, 604 F.2d 647 (9th Cir. 1979). 2. Dismissal For Failure to State a Claim Upon Which Relief May be Granted (Rule 12(b)(6)) Federal Rule of Civil Procedure 12(b) further provides that “a party may assert the following defenses by motion… (6) failure to state a claim upon which relief may be granted.” Similar to the standard applied under Rule 12(b)(1), the Court may dismiss a complaint under Rule 12(b)(6) where “it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief.” See Westlands v. NRDC, 276 F.Supp.2d 1046, 1049 (E.D. Cal. 2003). In considering a motion to dismiss under Rule 12(b)(6), the Court may assume the truth of the facts alleged in the complaint, but “it is not proper for the court to assume that the plaintiff can prove facts which he or she has not alleged, or that the defendants have violated the laws in ways that have not been alleged." Id. B. Because Tesoro Filed its Lawsuit over Six Months after the District Rejected its Claims, All the Complaint’s State Law Claims Must Be Dismissed Under the Government Claims Act, “an action for ‘money or damages’ against a public entity may not proceed unless a written claim has first been presented to the governmental entity and…has been granted or rejected. (Gov. Code §§905, 945.4.)” Lozada v. City and County of San Francisco, 145 Cal.App.4th 1139, 1152 (Cal. Ct. App. 2006). When the public entity then rejects the claim in writing, the plaintiff must file its lawsuit asserting the claim, “…not later than six months after the date such notice is…deposited in the mail.” Cal. Gov. Code, §945.6(a). / / / Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 10 of 16 Page ID #:348 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 4850-9310-1378.1 6 DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW As its Complaint concedes, Tesoro presented its GCA Claim to the District on February 5, 2016 (Complaint, ¶53 and Ex. C), and “on March 10, 2016 LACSD further rejected plaintiffs’ claim.” (Complaint, ¶55 and Ex. E). Tesoro filed this action on September 16, 2016, six months and six days after the District’s written rejection notice. Therefore, Tesoro failed to comply with the six-month filing requirement, and its nine state law claims are barred. Moreover, while Tesoro seeks some non-monetary relief for three of its state law claims, those claims are still subject to the six-month statute of limitations imposed by Cal. Gov. Code §945.6(a). Where, as in this action, the plaintiff seeks both monetary and non-monetary relief, the Government Claims Act’s presentation requirements apply when the claims for damages and other monetary relief, “…are not incidental or ancillary to any specific relief that is also sought, but the primary purpose of the action.” Lozada, supra, at 1167 (emphasis in original, citations omitted). Thus, where the non-monetary relief an action seeks “is merely incidental or ancillary to a prayer for damages,” the rule that the Government Claims Act “…does not impose any [claims presentation] requirements for nonpecuniary actions, such as those seeking injunctive, specific or declaratory relief” has no application. Loehr v. Ventura Community College Dist., 147 Cal.App.3d 1071, 1081 (Cal. Ct. App. 1983). See also, Gatto v. Ventura County Community College Dist., 98 Cal.App.4th 744, 762 (Cal. Ct. App. 2002) (Government Claims Act presentation and filing requirements “…remain[] applicable to actions in which money damages are not incidental or ancillary to the specific relief that is also sought, but the primary purpose of the action.”) In determining the “primary purpose” of an action, the courts look to relevant allegations in the complaint and requests in the prayer for relief. For example, in Loehr, the court concluded that the “primary purpose” of plaintiff’s claims was “pecuniary” because the first three causes of action sought monetary relief only, and, while the fourth and fifth were for writ of mandamus and injunctive relief, both Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 11 of 16 Page ID #:349 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 4850-9310-1378.1 7 DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW also sought “recovery for loss of future earnings, emotional and mental distress, pain and suffering, and damage to reputation.” Loehr, supra., at 1081-82. See also, Lozada, supra, at 1169-70, where the court held that monetary relief was the action’s primary purpose in part because: “[D]amages are the first thing mentioned in the title and the prayer for relief.” In this action, six of Tesoro’s nine state law claims are for monetary relief only, while three seek both monetary and non-monetary relief. At least 11 paragraphs in the allegations for the nine state law claims describe or complain of Tesoro’s “removal or remedial action costs” (Complaint, ¶50), “losses” (Complaint, ¶80), “expenses” (Complaint, ¶83), “consequential, incidental and general damages” (Complaint, ¶92) and similar monetary harm (Complaint, ¶¶49, 76, 78, 87, 96, 100, and 102). Only two of the paragraphs for the nine state law claims mention any extraordinary relief. Complaint, ¶¶93 and 99. Moreover, damages are the first thing mentioned in the title of the Complaint and in the Prayer for Relief. Complaint ¶¶1 and 24. In the Prayer, the first three requests are for damages, for the future costs of remediation, and for reimbursement of Tesoro’s past costs, and the seventh seeks prejudgment interest. Only the fourth request seeks an injunction against defendants. Complaint, p. 24. With these allegations, under the controlling precedent of Loehr and Lozada, monetary relief is clearly the primary purpose of the Complaint’s state law claims. Therefore, all those claims are subject to the Government Claims Act requirements. Because Tesoro failed to meet the six-month filing requirement here, its nine state law claims must be dismissed. C. Because Tesoro’s GCA Claim Failed toAssert Trespass or Nuisance Claims against the District, the Complaint’s Trespass and Nuisance Claims Are Barred California Government Code section 945.4 requires a plaintiff to present a “written claim” to a public entity before bringing suit “against [that] public entity on Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 12 of 16 Page ID #:350 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 4850-9310-1378.1 8 DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW a cause of action for which a claim is required to be presented” under the Government Claims Act. When, as in this case, the complaint asserts legal causes of action not reflected in the plaintiff’s previous written claim to the public entity defendant, those causes of action fail to meet section 945.4’s claim presentation requirement, and cannot proceed in court. Doe 1 v. City of Murietta, 102 Cal. App.4th 899 (Cal. Ct. App. 2002). As the Doe 1 court explained: “The claim requirement serves the important function of allowing the public entity to investigate the claim and to settle meritorious lawsuits. To these ends, a claim filed in anticipation of litigation must set forth all the legal and factual bases that will be asserted in any subsequent lawsuit: If a plaintiff relies on more than one theory of recovery against the [government entity], each cause of action must have been reflected in a timely claim….” Id., at 920 (citations and internal quotations omitted). Relying on this rule, the court barred the contract cause of action in the plaintiffs’ complaint from proceeding because its earlier claims to the public entity defendant “do not mention…any contract breach.” Id., at 921. Similarly, in Watson v. State of California, 21 Cal.App.4th 836, 843-44 (Cal. Ct. App. 1993), the court barred the plaintiff’s complaint from proceeding because his earlier “claim [to the government agency] was based on the theory that the State refused to provide medical care” while his complaint alleged the State did not give him “appropriate and adequate medical care for his injuries.” Id., at 844 (citations and internal quotations omitted). And in Star Insurance Co. v. Los Angeles Unified School District, 2004 U.S. Dist. LEXIS 31363 (C.D. Cal. 2004), the court, relying on Watson, supra., dismissed the plaintiff’s third-party beneficiary rights claim in the complaint because “[such] rights are not even mentioned in its Government Code claims,” and dismissed the negligence claim in its complaint because “[n]one Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 13 of 16 Page ID #:351 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 4850-9310-1378.1 9 DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW of its Government Code claims alleges that [the defendant] acted negligently.” In this case, the Tesoro’s GCA Claim stated that it “seeks remedial response, contribution and indemnity” from the District and other public entities. Complaint, Ex. C, p. 41. The GCA Claim does not mention trespass at all. While the GCA Claim mentions a possible nuisance condition (Complaint, Ex. C, p. 42), it does not assert that any condition gives rise to a nuisance claim for Tesoro against the District. Further, the GCA Claim does not reflect a trespass or nuisance claim because it does not mention the essential property-related elements of those claims. Under California law, a plaintiff must have exclusive possession of real property in order to assert a trespass claim. E.H. Wilson v. Interlake Steel Co., 32 Cal.3d 229, 233 (Cal. 1982). For private nuisance claims, the plaintiff must allege injury to the use and enjoyment of its interests in real property. Koll-Irvine Center Property Owners Association v. County of Orange 24 Cal.App.4th 1036, 1040-41 (Cal. Ct. App. 1994). For public nuisance, the plaintiff must allege special injury to his person or property, of a different kind than that suffered by the general public. Coppola v. Smith, 935 F.Supp.2d 993, 1018 (N.D. Cal. 2013). Tesoro’s GCA Claim states that Tesoro owns three pipelines in an area of Long Beach, but does not mention any interest in any real property in the area. Complaint, Ex. C, pp. 40-42. The GCA Claim describes Tesoro’s costs of investigating the area as the Cleanup and Abatement Order directs, and seeks “remedial response, contribution and indemnity” from the District; but it does not mention any damages for injury to Tesoro’s interests in any real or personal property in the area. Complaint, Ex. C, pp. 35-42. In contrast, the Complaint describes “the real property at Golden Avenue between Baker Street and West Wardlow Road in Long Beach” as the “Site” and alleges that: “Tesoro maintains easements, permits, rights of way, or franchise agreements to control, use, and operate the Site.” Complaint, ¶¶1 and 22. The Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 14 of 16 Page ID #:352 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 4850-9310-1378.1 10 DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW Complaint then pleads causes of action for Trespass, Private Nuisance, Public Nuisance and Nuisance Per Se, alleging that the contamination the District and other defendants allegedly caused has intruded on and injured the Site and has interfered with Tesoro’s use and enjoyment of the Site. Complaint, ¶¶85-87, 89, 91, and 96- 97. These extensive allegations in the Complaint of Tesoro’s trespass and nuisance claims, including allegations of Tesoro’s interests in real property and of defendants’ intrusion onto and interference with Tesoro’s use of real property, are not reflected in Tesoro’s GCA Claim to the District. Thus, as in Doe 1, supra, where the plaintiffs’ pre-litigation claims to the public entity defendant did not mention a contract cause of action or its essential elements of the existence and breach of a contract, Tesoro’s GCA Claim does not reflect the trespass and nuisance causes of action of its Complaint. Therefore, those causes of action cannot proceed in this Court. IV. CONCLUSION Tesoro alleges that it began incurring the remedial costs it seeks in its Complaint in September 2014, when the Regional Board issued the Cleanup Order. In February 2016, Tesoro notified the District of its claims against the District for most or all of these remedial costs, and in September 2016 Tesoro filed this action for those costs. In seeking to enforce its remedial cost claims in 2016, Tesoro failed to comply with two requirements of California’s Government Claims Act: that a plaintiff must file its action within six months of the date the public entity defendant rejected the plaintiff’s claim in writing, as to all nine of its state law claims in the Complaint; and, that a plaintiff’s claim submitted to the public entity must reflect each cause of action in the later complaint, as to the trespass and nuisance claims in its Complaint. Therefore, under the applicable provisions of the Government Claims Act and controlling case law, Tesoro’s nine state law claims should be Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 15 of 16 Page ID #:353 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 4850-9310-1378.1 11 DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW dismissed. Further, in light of the clear nature of the fatal defects in Plaintiff’s Complaint, and the exhibits to the Complaint proving these defects, there is no set of facts that Plaintiff could allege which would entitle Plaintiff to relief from the District on the state law claims. Thus, the Court can and should dismiss the Complaint against the District as to these state law claims pursuant to Rule 12(b)(1) and/or Rule 12(b)(6) and the supporting case law. DATED: February 6, 2017 LEWIS BRISBOIS BISGAARD & SMITH LLP By: /s/ James A. Geocaris James A. Geocaris Claire Hervey Collins Marshal P. Wilke Attorneys for Defendant COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY Case 2:16-cv-06963-RGK-FFM Document 45 Filed 02/06/17 Page 16 of 16 Page ID #:354 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 4845-9581-4210.1 1 ORDER GRANTING MOTION TO DISMISS COMPLAINT LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW LEWIS BRISBOIS BISGAARD & SMITH LLP JAMES A. GEOCARIS, SB# 65904 E-Mail: James.Geocaris@lewisbrisbois.com 650 Town Center Drive, Suite 1400 Costa Mesa, California 92626 Telephone: 714.545.9200 Facsimile: 714.850.1030 LEWIS BRISBOIS BISGAARD & SMITH LLP CLAIRE HERVEY COLLINS, SB# 233890 E-Mail: Claire.Collins@lewisbrisbois.com MARSHAL WILKE, SB# 265474 E-Mail: Marshal.Wilke@lewisbrisbois.com 633 West 5th Street, Suite 4000 Los Angeles, California 90071 Telephone: 213.250.1800 Facsimile: 213.250.7900 Attorneys for Defendant COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION TESORO REFINING & MARKETING COMPANY LLC, a Delaware limited liability company; TESORO SOCAL PIPELINE COMPANY LLC, a Delaware limited liability company, Plaintiffs, vs. CITY OF LONG BEACH, a California municipality; COUNTY OF LOS ANGELES, a California municipality; CRIMSON PIPELINE, L.P., a Colorado limited partnership; ENI OIL & GAS INC. (f/k/a GOLDEN EAGLE REFINING COMPANY, INC.), a Texas corporation; GETTY OIL COMPANY, a California corporation; LONG BEACH WATER DEPARTMENT, a California municipal entity; LOS ANGELES COUNTY SANITATION DISTRICT, a California municipal entity; PLAINS ALL AMERICAN PIPELINE, L.P. a Texas partnership (as successor-in- CASE NO. 2:16-CV-06963-RGK (FFMx) The Hon. R. Gary Klausner [PROPOSED] ORDER GRANTING DEFENDANT COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY’S MOTION TO DISMISS COMPLAINT FOR LACK OF SUBJECT-MATTER JURISDICTION (RULE 12B(1)) AND FOR FAILURE TO STATE A CLAIM (RULE 12B(6)) Complaint Filed: September 16, 2016 Trial Date: None Set NO FEE DUE GOV'T CODE § 6103 Case 2:16-cv-06963-RGK-FFM Document 45-1 Filed 02/06/17 Page 1 of 3 Page ID #:355 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 4845-9581-4210.1 2 ORDER GRANTING MOTION TO DISMISS COMPLAINT LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW interest to PPS HOLDING COMPANY); UNION OIL COMPANY OF CALIFORNIA, a California corporation, Defendants. Having reviewed the Motion to Dismiss Complaint for Lack of Subject- Matter Jurisdiction (Rule 12B(1)) and for Failure to State a Claim (Rule 12B(6)) (the “Motion”) filed herein by Defendant COUNTY SANITATION DISTRICT NO. 3 OF LOS ANGELES COUNTY (“Moving Defendant”), the Court finds: Plaintiffs failed to comply with two requirements of the Government Claims Act applicable to the Moving Defendant. First, as to all of Plaintiffs’ state law claims (causes of action #1, 3, 4, 5, 6, 7, 8, 9, and 10 in the Complaint), Plaintiffs failed to file this lawsuit within six months of Moving Defendants’ written rejection of Plaintiffs’ earlier claim to Moving Defendant. These causes of action are therefore outside of the statute of limitations established by the Government Claims Act. Cal. Gov. Code, §945.6(d). In addition, as to the four trespass and nuisance claims in Plaintiffs’ Complaint (causes of action #6, 7, 8 and 9 in the Complaint), Plaintiffs’ presentation of claims to Moving Defendant failed to reflect that Plaintiffs had any trespass or nuisance claims against Moving Defendant for the contamination at the Site. The Government Claims Act requires the claimant to present all claims for monetary relief (including trespass and nuisance), and have those claims considered by the affected agency, before the claimant may bring suit. Cal. Gov. Code, §945.4. See Doe 1 v. City of Murietta, 102 Cal.App.4th 899, 920 (Cal. Ct. App. 2002) (“…each cause of action must have been reflected in a timely claim”). Because Plaintiffs failed to meet the statute of limitations, and the claims presentation requirements, imposed by the Government Claims Act, their nine state law claims in the Complaint against Moving Defendant (causes of action #1, 3, 4, 5, Case 2:16-cv-06963-RGK-FFM Document 45-1 Filed 02/06/17 Page 2 of 3 Page ID #:356 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 4845-9581-4210.1 3 ORDER GRANTING MOTION TO DISMISS COMPLAINT LEWIS BRISBOIS BISGAARD &SMITH LLP ATTORNEYS AT LAW 6, 7, 8, 9, and 10 in the Complaint) must be dismissed. Good cause appearing therefor; IT IS ORDERED that the Motion is granted. Causes of action #1, 3, 4, 5, 6, 7, 8, 9, and 10 in Plaintiffs’ Complaint are hereby dismissed with prejudice as to the Moving Defendant. DATED: ______________, 2017 By: Hon. R. Gary Klausner U.S. District Court Judge Case 2:16-cv-06963-RGK-FFM Document 45-1 Filed 02/06/17 Page 3 of 3 Page ID #:357