Hinds Invs., L.P. v. Angioli

Before: O'SCANNLAIN and GOULD, Circuit Judges, and ST. EVE, District Judge.

MEMORANDUM

Hinds Investments, L.P. and Patricia MacLaughlin (collectively, " Hinds" ) appeal the district court's dismissal of their statutory and common law claims against dry cleaning equipment manufacturers Multimatic Corporation, Multimatic Dry Cleaning Corporation, and Multimatic successor in interest Kirrberg Corporation; R. R. Street & Co.; and the Hoyt Corporation (collectively, " Defendants" ). Because the facts are known to the parties, we repeat them only as necessary to explain our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Hinds seeks to hold Defendants liable as " arrange[rs]" under the Comprehensive Environmental Response, Compensation, and Liability Act (" CERCLA" ). See 42 U.S.C. § 9607(a)(3). The district court properly found that Hinds's allegations, taken as true, do not state claims for CERCLA arranger liability against Defendants. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (" To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))). Hinds has not alleged facts showing that Defendants sold dry cleaning equipment for the purpose of disposing of perchlorethylene or that Defendants exercised control over the disposal process. See Team Enters., LLC v. W. Inv. Real Estate Trust, No. 10-16916, F.3d , 446 Fed.Appx. 23, (9th Cir. 2011); see also Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 129 S.Ct. 1870, 1880, 173 L.Ed.2d 812 (2009). Because Hinds does not assert valid CERCLA claims against Defendants, Hinds's claims under the California Carpenter-Presley-Tanner Hazardous Substance Account Act also fail. See Cal. Health & Safety Code § 25323.5(a)(1).

The district court also did not err in dismissing Hinds's nuisance claims against Defendants. Under California law, defendants " who t[ake] affirmative steps directed toward the improper discharge of solvent wastes . . . may be liable" for nuisance. City of Modesto Redev. Agency v. Superior Court, 119 Cal.App.4th 28, 13 Cal.Rptr.3d 865, 876 (Ct.App. 2004). " While liability for nuisance is broad, however, it is not unlimited." Id. at 872. Hinds alleges that Defendants are liable for nuisance based on their machines' design, but these allegations sound in products liability, for which " the law of nuisance is not intended to serve as a surrogate." Id. at 873; see City of San Diego v. U.S. Gypsum Co., 30 Cal.App.4th 575, 35 Cal.Rptr.2d 876, 883 (Ct.App. 1994). Hinds also alleges that Defendants are liable because their instruction manuals stated that waste water from their machines " must flow into an open drain," " may be drained into a container or piped directly to a floor drain," or " should be piped into an open sewer." These waste disposal recommendations fall short of the kinds of " affirmative acts or instructions [that] could support a finding that [D]efendants assisted in creating a nuisance." City of Modesto, 13 Cal.Rptr.3d at 874; see Team Enters., LLC, slip. op. at .

Hinds similarly does not state a claim that satisfies the narrower definition of trespass. See Capogeannis v. Superior Court, 12 Cal.App.4th 668, 15 Cal.Rptr.2d 796, 799 (Ct.App. 1993) (" California's definition of trespass is considerably narrower than its definition of nuisance." ). Hinds's claim that Defendants advised dry cleaning operators to dispose of waste water down the drain and into the sewer depends on alleged physical disposal by Hinds's tenants. As Hinds's tenants consented to the process whereby the contamination entered Hinds's property, Hinds cannot bring a claim against Defendants for trespass. See Cnty. of Santa Clara v. A. Richfield Co., 137 Cal.App.4th 292, 40 Cal.Rptr.3d 313, 332 (Ct.App. 2006) (" The flaw in the proposed trespass cause of action is that plaintiffs' pleadings indisputably establish that the [hazardous substance] was placed on plaintiffs' property by plaintiffs or with their consent." (emphasis in original)).

AFFIRMED.