Cal. Civil Code § 852 : Rights And Obligations Of Owners — California Civil Code — Property — Environmental Responsibility Acceptance Act — Transmittal to notice recipient of copy of executed commitment statement

14 Sep 2016

Current through the 2016 Legislative Session

(a) Within 45 days after issuance of the commitment statement, the owner may transmit to the notice recipient by certified mail, return receipt requested, an executed copy of the commitment statement, indicating its acceptance. If the owner does not execute the commitment statement, the commitment statement shall be deemed to have been rejected upon expiration of the 45-day period. A notice recipient has no obligation with respect to the provisions of a rejected commitment statement.
(b)
(1) Except as otherwise provided in this chapter, or unless the owner or the notice recipient has elected not to proceed with the mediation, if the owner rejects the commitment statement, the owner and notice recipient shall participate in a mediation process prior to the commencement of any litigation which pertains to a release covered by the commitment statement. The mediation process shall be supervised by a neutral third party mutually agreed upon by the owner and the notice recipient in order to mediate a mutually agreeable settlement between the owner and notice recipient of all issues related to the release.
(2) Either the notice recipient or the owner may elect not to proceed further with the mediation process at any time prior to completion of those proceedings.
(3) To the extent a mutually agreeable settlement is reached which allocates the liability and assigns the rights and obligations of the owner and notice recipient in a manner different from or inconsistent with this chapter, the settlement shall supersede the terms of this chapter pursuant to subdivision (f) of Section 853. If a settlement of all issues cannot be reached within 90 days after the owner's rejection of the commitment statement, the neutral third party shall declare the mediation process unsuccessful and terminate the process. The owner and notice recipient may mutually agree to extend the mediation process but shall communicate any such extension in writing to the neutral third party. If the party issuing the commitment statement fails, for any reason, to participate in the mediation within 90 days of the rejection of the commitment statement, the owner may proceed with litigation.
(4) After the termination of an unsuccessful mediation process, the parties shall be free to litigate or otherwise resolve their respective claims. The parties may mutually agree to the terms of the commitment statement at any time after the termination of an unsuccessful mediation process, in which case this chapter shall govern the rights and obligations of the parties.
(5) Any applicable statute of limitations shall be tolled for 90 days following issuance of a notice of potential liability, a release report, or a commitment statement.
(6) Any applicable statute of limitations shall be tolled from the time the owner rejects a commitment statement until the termination of the mediation process. If mediation is not commenced within 90 days after the owner's rejection of the commitment statement, the tolling of the statute of limitations shall terminate unless otherwise agreed to by the parties.
(7) Unless the owner and notice recipient agree otherwise, the fees and costs of the neutral third party shall be borne equally by the notice recipient and the owner.
(c) Upon taking effect, the commitment statement shall have all of the following results:
(1) The commitment statement shall constitute a binding promise that the notice recipient will undertake any response action as required by an oversight agency through a written action, directed to the owner or notice recipient, in connection with the release that is the subject of the notice of potential liability or release report. The commitment statement shall not create any obligations with respect to releases occurring after the commitment statement is signed, or with respect to any other release that is not the subject of the notice of potential liability.
(2) The commitment statement shall constitute a binding promise that the owner shall provide reasonable site access to the notice recipient to take any action that is reasonably necessary or appropriate to conduct a response action. This grant of access shall not affect the rights of the owner if the notice recipient's activities onsite result in physical damage to the site which the notice recipient fails to repair within a reasonable period after completion of all onsite activities. Unless otherwise ordered by the oversight agency, the notice recipient shall take all reasonable steps to avoid interfering with the owner's use of the site.
(3) Except for civil actions seeking damages for personal injury or wrongful death, once a commitment statement has been accepted, the court shall stay any action brought by the owner of the site against the notice recipient that issued the commitment statement, including, but not limited to, actions in trespass, nuisance, negligence, and strict liability, which arise from or relate to a release for which a commitment statement has been issued. The stay shall be effective for a period of not more than two years from the date of acceptance of the commitment statement, but only so long as the site response action is proceeding to the satisfaction of an oversight agency. The stay shall not apply to any civil action that is based on fraud, failure to disclose, or misrepresentation related to any transaction between the owner of the site and the notice recipient, to any civil action for breach of the commitment statement, or to any civil action which is unrelated to the release.

The owner and notice recipient may elect to extend the period of the stay by written agreement.

(4) In an action by an owner who has accepted a commitment statement against the notice recipient who issued the commitment statement, and which arises from or relates to a release for which a commitment statement has been issued, only the following damages shall be recoverable to the extent otherwise authorized by law:
(A) Damages for personal injuries or wrongful death caused by the release.
(B) Damages for breach of a commitment statement.
(C) Damages from the failure of a prospective purchaser to perform under a sales contract because of the release, where such failure to perform occurs prior to the issuance of the commitment statement.
(D) Damages for the lost use of the property prior to the issuance of a commitment statement caused by the release.
(E) Recovery of costs of investigating and responding to the release where such costs are incurred prior to the issuance of the commitment statement.
(F) Remedies for any breach of a preexisting contract entered into prior to the acceptance of a commitment statement.
(G) Damages for lost rents and any other damages recoverable under law associated with lost use of the site caused by any notice recipient during site response action activities.
(5) An owner may obtain rescission of a commitment statement if a notice recipient repudiates its obligations under the commitment statement, in which case Sections 852 and 854 shall no longer apply to the site.
(6) The notice recipient and owner shall copy each other with respect to all correspondence and proposed workplans to and from the oversight agency that relate to the site.
(d) Nothing in this chapter shall affect the authority of an oversight agency under the law to bring an administrative, criminal, or civil action against either a notice recipient or the owner, nor does it compel any action on the part of the oversight agency.
(e) At any time after the commitment statement is accepted, either the owner or the notice recipient may file an action against the other for material breach of rights and obligations associated with the commitment statement. Subject to the stay provided for in paragraph (3) of subdivision (c), the parties may litigate these claims in the same action as any other claims they may have in connection with the release that is the subject of the commitment statement.
(f) Whenever a notice recipient issues a commitment statement, the following notice shall be provided in 14 point boldface type if printed or in boldface capital letters if typed: "THIS FORM WAS DEVELOPED AS PART OF A PROCESS ENACTED BY THE CALIFORNIA LEGISLATURE TO PROVIDE OWNERS OF PROPERTY AND POTENTIALLY RESPONSIBLE PARTIES AN ALTERNATIVE TO LITIGATING DISPUTES OVER CONTAMINATION. IT IS YOUR OPTION AS TO WHETHER YOU SIGN THIS FORM OR OTHERWISE PARTICIPATE IN THIS PROCESS. IF YOU CHOOSE NOT TO PARTICIPATE IN THE PROCESS, YOU SHOULD NOTIFY THE PARTY WHO SENT YOU THIS FORM. THIS FORM INVOLVES A TRADEOFF WHEREBY EACH PARTY ACQUIRES AND RELINQUISHES CERTAIN RIGHTS. UNDER THIS FORM, THE PROPERTY OWNER GETS THE ASSURANCE THAT THE POTENTIALLY RESPONSIBLE PARTY IS OBLIGATED TO PERFORM INVESTIGATORY AND CLEANUP ACTIONS IN THE EVENT THAT GOVERNMENT AUTHORITIES ELECT TO REQUIRE THESE ACTIONS. ON THE OTHER HAND, THE PROPERTY OWNER FOREGOES CERTAIN CLAIMS ASSOCIATED WITH RESIDUAL CONTAMINATION THAT GOVERNMENTAL AUTHORITIES ALLOW TO REMAIN IN PLACE ON THE PROPERTY. IF YOU ELECT NOT TO SIGN THIS FORM, THE PROCESS DEVELOPED BY THE LEGISLATURE CONTEMPLATES THAT YOU WILL ATTEMPT TO MEDIATE ANY DISPUTES REGARDING THE CONTAMINATION. HOWEVER, MEDIATION IS NEITHER MANDATORY NOR BINDING. IF YOU HAVE QUESTIONS ABOUT THE PROCESS, YOU MAY WISH TO CONSULT AN ATTORNEY."
(g) Any applicable statute of limitations shall be tolled for two and one-half years from the date of acceptance of the commitment statement. If at the end of two years from the date of acceptance of the commitment statement an oversight agency has not issued a written action directed to the owner or notice recipient, the owner has 60 days in which he or she may terminate the commitment statement; and, in this event, it shall have no further force or effect. In the event the owner terminates the commitment statement, subdivision (c) shall no longer apply to the site and shall no longer govern the rights and obligations of the owner or notice recipient.
Ca. Civ. Code § 852