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 7, 2017

GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 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 ROGERS JOSEPH O’DONNELL Robert C. Goodman (State Bar No. 111554) rgoodman@rjo.com Nicholas T. Niiro (State Bar No. 281762) nniiro@rjo.com 311 California Street San Francisco, California 94104 Telephone: 415.956.2828 Facsimile: 415.956.6457 Attorneys for Defendants GETTY OIL COMPANY and UNION OIL COMPANY OF CALIFORNIA 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 Limited Partnership (as successor-in- interest to PPS HOLDING COMPANY); UNION OIL COMPANY OF CALIFORNIA, a California Corporation; and DOES 1-15 inclusive Defendants. Case No. 2:16-cv-06963-RGK-FFM NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT, OR IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT [Fed R. Civ. P. 12(b)(6), 12(e)] Judge R. Gary Klausner Complaint served: Dec. 13, 2016 Date: March 13, 2017 Time: 9:00 am Courtroom: 850 Location: 225 E. Temple Street 8th Floor Los Angeles, CA 90012 Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 1 of 17 Page ID #:365 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 DEFENDANTS GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; RULES 12(b)(6) AND 12(e) OF THE FEDERAL RULES OF CIVIL PROCEDURE. NOTICE TO PLAINTIFFS AND THEIR COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN that on March 13, 2017, at 9:00 a.m., or as soon thereafter as counsel may be heard in Courtroom 850 - 8th Floor of the above-referenced Court, located at 255 E. Temple Street, Los Angeles, CA 90012, Defendants Getty Oil Company and Union Oil Company of California will, and hereby do, move this Court for an order: (1) dismissing, without leave to amend, Plaintiffs’ Complaint for Damages and Injunctive Relief for failure to state any claim upon which relief can be granted; and (2) requiring Plaintiffs to provide a more definite statement for the causes of action in the Complaint that are not dismissed because the Complaint is so vague and ambiguous that Getty Oil Company and Union Oil Company of California cannot reasonably prepare a response. This motion is brought pursuant to Rules 12(b)(6) and 12(e) of the Federal Rules of Civil Procedure, as set out in the Memorandum of Points and Authorities below. As discussed below, the Complaint only presents threadbare allegations to support its claims against Getty Oil and Union Oil Company of California and relies instead on the recitation of legal conclusions to support each of its claims. Plaintiffs have failed to allege sufficient facts to state any claim for relief that is plausible on its face, thus failing to satisfy the pleading standard required by Rule 8 of the Federal Rules of Civil Procedure. This motion is made following the conference of counsel pursuant to L.R. 7-3, which took place on January 27, 2017. This motion is based on this Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 2 of 17 Page ID #:366 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 notice, the memorandum of points and authorities, the papers and pleadings herein, and on such oral and documentary evidence as may be adduced at the hearing of this matter. Dated: February 7, 2017 ROGERS JOSEPH O’DONNELL By: /s/ Nicholas T. Niiro ROBERT C. GOODMAN NICHOLAS T. NIIRO Attorneys for Defendants GETTY OIL COMPANY and UNION OIL COMPANY OF CALIFORNIA Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 3 of 17 Page ID #:367 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 TABLE OF CONTENTS I. INTRODUCTION .......................................................................................................... 1 II. STATEMENT OF ISSUES TO BE DECIDED ............................................................. 1 III. STATEMENT OF RELEVANT FACTUAL ALLEGATIONS.................................... 1 IV. LEGAL STANDARD .................................................................................................... 2 A. Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted ........................................................................................ 2 B. Motion for a More Definite Statement ............................................................... 3 V. ARGUMENT ................................................................................................................. 4 A. The Complaint is subject to dismissal for failure to state claims for relief against Getty and Union Oil that are plausible on their face. ..................................................................................................................... 4 1. Plaintiffs fail to allege sufficient facts to support a cause of action for contribution. ....................................................................... 5 2. Plaintiffs fail to allege sufficient facts to support a cause of action for declaratory relief under CERCLA. ..................................... 5 3. Plaintiffs fail to allege sufficient facts to support causes of action for equitable indemnity. ........................................................... 6 4. Plaintiffs fail to allege sufficient facts to support a cause of action for trespass. .............................................................................. 7 5. Plaintiffs fail to allege sufficient facts to support a cause of action for private nuisance. ................................................................. 7 6. Plaintiffs fail to allege sufficient facts to support a cause of action for public nuisance. .................................................................. 8 7. Plaintiffs fail to allege sufficient facts to support a cause of action for nuisance per se. .................................................................. 9 8. Plaintiffs fail to allege sufficient facts to support a cause of action under California Business and Professions Code § 17200. ................................................................................................... 9 B. If the Complaint is not dismissed, Plaintiffs should be required to provide a more definite statement of the claims against Getty and Union Oil. ......................................................................................................... 10 VI. CONCLUSION ............................................................................................................ 10 Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 4 of 17 Page ID #:368 Page ii GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 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 TABLE OF AUTHORITIES Page(s) Federal Cases 3550 Stevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355 (9th Cir. 1990) ..............................................................................................5 Albrecht v. Lund, 845 F.2d 193 (9th Cir. 1988) ................................................................................................3 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................................3, 4, 8 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ..............................................................................................................3 Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876 (9th Cir. 2010) ................................................................................................3 Landers v. Quality Commc’ns, Inc., 771 F.3d 638 (9th Cir. 2014) ................................................................................................3 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008) ..............................................................................................3 Santa Clara Valley Water Dist. v. Olin Corp., 2007 U.S. Dist. LEXIS 76117 (N.D. Cal. Sept. 28, 2007) ...................................................6 Sullins v. Exxon/Mobil Corp., 729 F. Supp. 2d 1129 (N.D. Cal. 2010) ................................................................................7 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ..............................................................................................................4 California Cases Beck Dev. Co. v. S. Pac. Transp. Co., 44 Cal. App. 4th 1160 (1996) ...............................................................................................9 City of Modesto Redevelopment Agency v. The Superior Court of San Francisco County, 119 Cal. App. 4th 28 (2004) .................................................................................................9 Dieterich Int’l Truck Sales, Inc. v. J.S. & J. Services, Inc., 3 Cal. App. 1601 (1992) .......................................................................................................7 Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 5 of 17 Page ID #:369 TABLE OF AUTHORITIES (continued) Page GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 Lazar v. Hertz Corp., 69 Cal. App. 4th 1494, 82 Cal. Rptr. 2d 368 (1999) ...........................................................10 Mangini v. Aerojet-General Corp., 230 Cal. App. 3d 1125 (1991) (superseded on other grounds by Mangini v. Aerojet-General Corp., 12 Cal. 4th 1087 (1996)) ............................................................7, 9 North American Capacity Ins. Co. v. Claremont Liability Ins. Co., 177 Cal.App.4th 272 (2009) .................................................................................................5 Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group, 143 Cal. App. 4th 1036 (2006) .............................................................................................6 Federal Statutes CERCLA, 42 U.S.C. § 9601 ................................................................................................................................1, 6 § 9613(g)(2)(B) .....................................................................................................................5 California Statutes California Business and Professions Code § 17200 ..............................................................................................................................2, 9 California Civil Code § 3479 ................................................................................................................................7, 8 California Health and Safety Code § 25363 ..................................................................................................................................5 Other Authorities 40 C.F.R. pt. 300 .....................................................................................................................5, 6 FED. R. CIV. P. 8 ........................................................................................................... 1, 3, 4, 10 FED. R. CIV. P. 12(b)(6) ......................................................................................................3, 4, 7 FED. R. CIV. P. 12(e) .............................................................................................................4, 10 Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 6 of 17 Page ID #:370 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 MOTION I. INTRODUCTION Plaintiffs Tesoro Refining & Marketing Company LLC and Tesoro SoCal Pipeline Company LLC (“Plaintiffs”) brings this action against Defendants Getty Oil Company (“Getty”) and Union Oil Company of California (“Union Oil”), among others, seeking to recover costs allegedly incurred in addressing contamination at a site in Long Beach, California. Plaintiffs’ Complaint (Dkt. No. 1) attempts to assert claims under California statutory and common law and the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq. (“CERCLA”). Plaintiffs generally allege suffering damages cleaning up releases that Plaintiffs allege are associated with pipelines that Getty and Union Oil allegedly owned and operated. Complaint, ¶ 24. As discussed below, the Complaint is deficient as a matter of law. The Complaint does not contain sufficient facts to state any claim for relief against Getty and Union Oil that is plausible on its face, thus failing to satisfy the pleading standard required by Rule 81 and justifying dismissal of all state-law and CERCLA claims alleged against Getty and Union Oil. II. STATEMENT OF ISSUES TO BE DECIDED 1. Whether the Complaint should be dismissed because it fails to state any claim for relief that is plausible on its face. 2. If the Court finds that the Complaint should not be dismissed, whether Plaintiffs should be required to provide a more definite statement. III. STATEMENT OF RELEVANT FACTUAL ALLEGATIONS The Complaint alleges that Plaintiffs control, use, and operate the real property located at Golden Avenue between Baker Street and West Wardlow Road in Long Beach, California (the “Site”), through easements, permits, rights of way, 1 All “Rules” refer to the Federal Rules of Civil Procedure. Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 7 of 17 Page ID #:371 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 or franchise agreements, to distribute crude oil and petroleum products for sale to customers. Complaint, ¶ 22. The Complaint generally alleges that the pipelines of defendants, including Getty and Union Oil, “caused or contributed to contamination at the Site because they failed, leaked, discharged or otherwise released materials, including but not limited to, petroleum, refined petroleum products (including gasoline), or waste water . . . .” Complaint, ¶ 27. The Complaint alleges that Getty’s pipelines were used “for the transportation of crude oil and/or refined products” and that Union Oil’s pipelines were used for the transportation of “crude oil, waste water, and/or refined product.” Complaint, ¶ 24. The Complaint alleges that defendants, including Getty and Union Oil, “through their acts or omissions at different times subsequent to about 1980, employed environmentally substandard practices and structures for investigating, maintaining, handling, storing, treating, disposing, and abandoning of various materials through their pipelines or sewer lines . . . .” Complaint, ¶ 34. The Complaint alleges that Plaintiffs have “had to incur numerous expenses . . . in investigating and remediating the Site . . . .” Complaint, ¶ 37. Plaintiffs allege causes of action against Getty and Union Oil for (1) contribution (Complaint, ¶¶ 75-76); (2) declaratory relief, including under CERCLA (id. ¶¶ 77- 81); (3) equitable indemnity (id. ¶¶ 82-83); (4) trespass (id. ¶¶ 84-87); (5) private nuisance (id. ¶¶ 88-93); (6) public nuisance (id. ¶¶ 94-100); (7) nuisance per se (id. ¶¶ 101-102); and (8) violation of California Business and Professions Code section 17200 (id. ¶¶ 103-107). Plaintiffs demand damages, declaratory relief, permanent injunction, attorneys’ fees, costs of suit, and prejudgment interest. Id., p. 24. IV. LEGAL STANDARD A. Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted A motion to dismiss should be granted where a party fails to state a Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 8 of 17 Page ID #:372 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate where a “complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). In order to survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Iqbal”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Twombly”)); see also Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 640-41 (9th Cir. 2014) (applying Iqbal). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 545 (internal citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not ‘show[n]’ -- ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)). “If the district court determines that the ‘allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency,’ then the dismissal without leave to amend is proper.” Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988) (quoting Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “[T]he district court may exercise its discretion to deny leave to amend due to ‘. . . repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . , [and] futility of amendment.’” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). B. Motion for a More Definite Statement Rule 8(a) requires “a short and plain statement” of the basis for relief, Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 9 of 17 Page ID #:373 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 including grounds for the court’s jurisdiction, a statement showing that Plaintiffs are entitled to relief, and a demand for the relief sought. Under Rule 12(e), “[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” “If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). V. ARGUMENT A. The Complaint is subject to dismissal for failure to state claims for relief against Getty and Union Oil that are plausible on their face. Plaintiffs’ Complaint fails to meet the pleading standard established by Rule 8 because it does not contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 663. The “pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555). Under the two-prong test for assessing the sufficiency of the pleading articulated in Iqbal, the Court should first identify and discard allegations that are no more than legal conclusions and which, therefore, are not entitled to a presumption of truth. Iqbal, 556 U.S. at 680-81. The Court then evaluates only the well pleaded, non-conclusory factual allegations to determine whether they give rise to a plausible claim for relief. Id. Here, all eight causes of action against Getty and Union Oil in the Complaint fail this test. Plaintiffs fail to present facts that connect the dots between the alleged contamination and any theory of liability against Getty and Union Oil. Instead, the Complaint consists almost entirely of legal conclusions. The Complaint should be dismissed under Rule 12(b)(6). Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 10 of 17 Page ID #:374 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 1. Plaintiffs fail to allege sufficient facts to support a cause of action for contribution. Plaintiffs’ third cause of action seeks contribution from Getty and Union Oil. “Equitable contribution is the right to recover from a co-obligor who shares a liability with the party seeking contribution.” North American Capacity Ins. Co. v. Claremont Liability Ins. Co., 177 Cal.App.4th 272, 295 (2009). Plaintiffs’ claim for contribution fails to allege that Plaintiffs and Getty and Union Oil are jointly liable for contamination at the Site. In fact, Plaintiffs allege that they are not responsible for contamination at the Site. See Complaint, ¶¶ 29-30. Plaintiffs’ claim for contribution should accordingly be dismissed. 2. Plaintiffs fail to allege sufficient facts to support a cause of action for declaratory relief under CERCLA. Plaintiffs’ fourth cause of action seeks declaratory relief against Getty and Union Oil under CERCLA and California Health and Safety Code section 25363. Complaint, ¶¶ 77-81. But the Complaint fails to allege a plausible CERCLA claim. CERCLA section 113 provides that [i]n any such action described in this subsection, the court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages. 42 U.S.C. § 9613(g)(2)(B) (emphasis added). Thus a prerequisite to a declaratory relief action under CERCLA is the establishment of a cause of action under CERCLA. For an action under CERCLA, Plaintiffs must establish four elements: (1) the property is a facility; (2) a release or threatened release of a hazardous substance from the facility has occurred; (3) the release or threatened release caused the plaintiffs to incur response costs that were necessary and consistent with the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. pt. 300 (the “National Contingency Plan”); and (4) the defendant is within one of the four classes of persons subject to liability. 3550 Stevens Creek Assocs. v. Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 11 of 17 Page ID #:375 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 Barclays Bank of Cal., 915 F.2d 1355, 1358 (9th Cir. 1990). The Complaint alleges that the sewer line is a facility, but makes no such allegation as to the pipelines allegedly operated by Getty and Union Oil or the Site. Complaint, ¶¶ 48, 64. The Complaint alleges that that response costs incurred by Plaintiffs were “in compliance with the applicable provisions of the National Contingency Plan,” but does not explain how they were necessary and consistent with the National Contingency Plan. Id. ¶ 71. The Complaint fails to allege that Getty or Union Oil were owners or operators at the time of a release, beyond stating that they owned or operated their pipelines “at all relevant times.” Id. ¶ 24. Further, the limited allegations of the Complaint establish that Plaintiffs cannot maintain a CERCLA claim against Getty and Union Oil due to the CERCLA “petroleum exclusion.” See 42 U.S.C. § 9601(14) (“The term ‘hazardous substance’ . . . does not include petroleum, including crude oil or any fraction thereof . . . .”). The only substances alleged against Getty and Union Oil would be covered by CERCLA’s petroleum exclusion. Complaint, ¶ 24. Because the Complaint fails to allege sufficient facts to demonstrate a plausible theory of liability under CERCLA, Plaintiffs’ fourth cause of action should be dismissed to the extent it relies on CERCLA. 3. Plaintiffs fail to allege sufficient facts to support causes of action for equitable indemnity. In its fifth cause of action, Plaintiffs claim entitlement to equitable indemnity because Plaintiffs have incurred costs to investigate and remediate the Site. Complaint, ¶ 83. It is well settled in California that equitable indemnity is only available among tortfeasors who are jointly and severally liable to a third party. Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group, 143 Cal. App. 4th 1036, 1040 (2006); Santa Clara Valley Water Dist. v. Olin Corp., 2007 U.S. Dist. LEXIS 76117, **6-7 (N.D. Cal. Sept. 28, 2007). Plaintiffs’ claim for equitable indemnity fails to allege that Plaintiffs are tortfeasor and fails to allege Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 12 of 17 Page ID #:376 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 that Plaintiffs and Getty and Union Oil are jointly and severally liable to a third party. In fact, Plaintiffs allege that they are not responsible for contamination at the Site. See Complaint, ¶¶ 29-30. Further, “[t]he cause of action for equitable indemnity accrues when the indemnitee suffers a loss through payment of an adverse judgment or settlement.” Sullins v. Exxon/Mobil Corp., 729 F. Supp. 2d 1129, 1139 (N.D. Cal. 2010) (citing Western Steamship Lines, Inc. v. San Pedro Peninsula Hosp., 8 Cal. 4th 100, 110 (1994)). Plaintiffs do not allege suffering a loss through payment of an adverse judgment or settlement. Accordingly, Plaintiffs’ equitable indemnity claim should be dismissed under Rule 12(b)(6). 4. Plaintiffs fail to allege sufficient facts to support a cause of action for trespass. In its sixth cause of action, Plaintiffs allege trespass against Getty and Union Oil. A trespass is “an unlawful interference with possession of property.” Mangini v. Aerojet-General Corp., 230 Cal. App. 3d 1125, 1141 (1991) (superseded on other grounds by Mangini v. Aerojet-General Corp., 12 Cal. 4th 1087 (1996)). A plaintiff asserting a claim for trespass must have a possessory interest in the land at issue; mere ownership is not sufficient. Dieterich Int’l Truck Sales, Inc. v. J.S. & J. Services, Inc., 3 Cal. App. 1601, 1608-09 (1992). Here, Plaintiffs fail to allege where the claimed trespass occurred, whether Plaintiffs have a possessory interest in the land at issue, and if so, how Getty and Union Oil interfered with that possessory interest. Complaint, ¶¶ 84-87. Accordingly, Plaintiffs’ continuing trespass cause of action should be dismissed. 5. Plaintiffs fail to allege sufficient facts to support a cause of action for private nuisance. Plaintiffs’ seventh cause of action alleges private nuisance against Getty and Union Oil. California nuisance law is created by statute. See Mangini at 1134-35 (citing Cal. Civ. Code §§ 3479, 3480, 3481, 3493, Cal. Code Civ. Proc. § 731). California Civil Code section 3479 defines nuisance as: Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 13 of 17 Page ID #:377 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance. Cal. Civ. Code § 3479. The Complaint fails to allege sufficient facts to support a claim for private nuisance. Instead, Plaintiffs allege a series of mere legal conclusions, with no specific facts in support. See Complaint ¶¶ 88-93. For example, Plaintiffs allege that defendants, including Getty and Union Oil, “are interfering with and precluding Tesoro’s free use and enjoyment of its Site,” but do not provide any facts explaining how the specific actions of Getty and Union Oil are interfering with Tesoro’s use, how an ordinary person would be reasonably annoyed or disturbed by Getty and Union Oil’s conduct, or how Getty and Union Oil’s conduct was a substantial factor in allegedly causing harm to Plaintiffs. Id. ¶¶ 89, 91. Because allegations presenting mere legal conclusions are not entitled to a presumption of truth and must be disregarded, Plaintiffs’ claim for private nuisance should be dismissed. Iqbal, 556 U.S. at 680-81. 6. Plaintiffs fail to allege sufficient facts to support a cause of action for public nuisance. Plaintiffs’ eighth cause of action alleges continuing public nuisance against Getty and Union Oil. Plaintiffs make conclusory allegation that “Defendants’ release, dumping, disposal, treatment and abandonment of various wastes onto the Site give rise to a public nuisance which affects not only Tesoro, but also the entire adjacent community and /or the comfort and convenience of a considerable number of residents and visitors who use the Site and adjoining areas.” Complaint, ¶ 95. A claim for public nuisance must allege that an interference with the comfortable enjoyment of life and property has occurred, Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 14 of 17 Page ID #:378 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 which affects at the same time an entire community or neighborhood. Mangini at 1134-35. In addition, Plaintiffs must allege that Getty and Union Oil had some active involvement in the creation of the nuisance. City of Modesto Redevelopment Agency v. The Superior Court of San Francisco County, 119 Cal. App. 4th 28, 38 (2004). Plaintiffs do not allege any facts regarding affirmative steps by Getty and Union Oil which created or assisted in the creation of the contamination which has allegedly affected the Site and surrounding community. Id.; Hinds Investment, L.P, 2010 U.S. Dist. LEXIS 48554 at *38-41. Accordingly, Plaintiffs’ continuing public nuisance cause of action should be dismissed. 7. Plaintiffs fail to allege sufficient facts to support a cause of action for nuisance per se. Plaintiffs’ ninth cause of action alleges nuisance per se against Getty and Union Oil. “[T]o be considered a nuisance per se the object, substance, activity or circumstance at issue must be expressly declared to be a nuisance by its very existence by some applicable law.” Beck Dev. Co. v. S. Pac. Transp. Co., 44 Cal. App. 4th 1160, 1207 (1996). Plaintiffs allege nuisance per se “[b]y virtue of state and federal law and by virtue of the Regional Board issuing the Order mandating Tesoro to remediate the surrounding area . . . .” Complaint, ¶ 102. But Plaintiffs do not allege that Getty or Union Oil violated any law that expressly declares an activity to be a nuisance. Accordingly, the cause of action for nuisance per se should be dismissed. 8. Plaintiffs fail to allege sufficient facts to support a cause of action under California Business and Professions Code § 17200. Finally, Plaintiffs’ tenth cause of action alleges violations of California Business and Professions Code section 17200. A claim under Business and Professions Code section 17200 requires a showing that the defendant engaged in Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 15 of 17 Page ID #:379 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 “unlawful, unfair or fraudulent business practice.” Lazar v. Hertz Corp., 69 Cal. App. 4th 1494, 1505, 82 Cal. Rptr. 2d 368, 375 (1999). Plaintiffs generally allege that Getty and Union Oil “engaged in unfair competition through unfair, or unlawful business acts or practices by maintaining Environmentally Substandard Conditions . . . ” at the Site and “contaminating and failing to remediate the environment, and by a number of other activities that have substantially interfered with Tesoro’s enjoyment of its Site.” Complaint, ¶ 105. Plaintiffs fail to state specific actions by Getty and Union Oil which constitute unlawful, unfair, or fraudulent business practices beyond these general allegations. B. If the Complaint is not dismissed, Plaintiffs should be required to provide a more definite statement of the claims against Getty and Union Oil. If the Court finds that Plaintiffs have satisfied the requirements of Rule 8, it should order Plaintiffs to provide a more definite statement, pursuant to Rule 12(e). The Complaint is “vague and ambiguous” to the point that Getty and Union Oil cannot reasonably prepare a response. FED. R. CIV. P. 12(e). The Complaint fails to provide notice of what specific actions by Getty and Union Oil give rise to Plaintiffs’ causes of action. Plaintiffs must provide Getty and Union Oil with a more definite statement. VI. CONCLUSION Plaintiffs have failed to allege sufficient facts to support their causes of action against Getty and Union Oil. To the extent that the Court finds that Plaintiffs have satisfied the mandates of Rule 8, it should order Plaintiffs to provide a more definite statement. Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 16 of 17 Page ID #:380 GETTY OIL COMPANY AND UNION OIL COMPANY OF CALIFORNIA’S MOTION TO DISMISS CASE NO: 2:16-CV-06963-RGK-FFM 386575.3 Page 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 Dated: February 7, 2017 ROGERS JOSEPH O’DONNELL By: /s/ Nicholas T. Niiro ROBERT C. GOODMAN NICHOLAS T. NIIRO Attorneys for Defendants GETTY OIL COMPANY and UNION OIL COMPANY OF CALIFORNIA Case 2:16-cv-06963-RGK-FFM Document 50 Filed 02/07/17 Page 17 of 17 Page ID #:381 [PROPOSED] ORDER GRANTING MOTION TO DISMISS NO: 2:16-CV-06963-RGK-FFM 386645.1 Page 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 ROGERS JOSEPH O’DONNELL Robert C. Goodman (State Bar No. 111554) rgoodman@rjo.com Nicholas T. Niiro (State Bar No. 281762) nniiro@rjo.com 311 California Street San Francisco, California 94104 Telephone: 415.956.2828 Facsimile: 415.956.6457 Attorneys for Defendants GETTY OIL COMPANY; UNION OIL COMPANY OF CALIFORNIA 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 Limited Partnership (as successor-in- interest to PPS HOLDING COMPANY); UNION OIL COMPANY OF CALIFORNIA, a California Corporation; and DOES 1-15 inclusive Defendants. Case No. 2:16-cv-06963-RGK-FFM [PROPOSED] ORDER GRANTING MOTION TO DISMISS COMPLAINT, OR IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT Judge R. Gary Klausner Complaint served: Dec. 13, 2016 Date: March 13, 2017 Time: 9:00 am Courtroom: 850 Location: 225 E. Temple Street 8th Floor Los Angeles, CA 90012 Case 2:16-cv-06963-RGK-FFM Document 50-1 Filed 02/07/17 Page 1 of 2 Page ID #:382 [PROPOSED] ORDER GRANTING MOTION TO DISMISS NO: 2:16-CV-06963-RGK-FFM 386645.1 Page 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 Defendants Getty Oil Company and Union Oil Company of California (“Moving Defendants”) filed a Motion to Dismiss each of Plaintiffs’ eight causes of action asserted against Moving Defendants, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. After consideration of all of the papers filed in connection herewith and the arguments of parties and of counsel, the Court finds that Plaintiffs’ Complaint fails to state a claim upon which relief can be granted against Moving Defendants. Plaintiffs’ eight causes of action asserted against Moving Defendants fail to allege sufficient facts to state any claim for relief that is plausible on the face of the Complaint, as required by Rule 8 of the Federal Rules of Civil Procedure. Moving Defendants’ Motion to Dismiss is GRANTED, and Plaintiffs’ Complaint is dismissed in its entirety as against Moving Defendants, without leave to amend. IT IS SO ORDERED. DATED: _________________ _________________________________ HONORABLE R. GARY KLAUSNER U.S. DISTRICT COURT JUDGE Case 2:16-cv-06963-RGK-FFM Document 50-1 Filed 02/07/17 Page 2 of 2 Page ID #:383