The Board of Trustees of the Leland Stanford Junior University v. Agilent Technologies, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THE BOARD OF TRUSTEES OF THE Case No. 18-cv-01199-VC

LELAND STANFORD JUNIOR

UNIVERSITY,

ORDER DENYING MOTION FOR

Plaintiff, SUMMARY JUDGMENT

v. Re: Dkt. No. 216

AGILENT TECHNOLOGIES, INC., et al.,

Defendants.

HP and Agilent’s motion for summary judgment on Stanford’s nuisance and trespass

claims is denied. This ruling assumes that the reader is familiar with the summary judgment

record and the arguments made by the parties. In addition, for simplicity, this ruling speaks

solely in terms of nuisance, because the analysis for trespass is the same.

I.

California law distinguishes between two types of nuisances: “continuous” and

“permanent.” McCoy v. Gustafson, 180 Cal. App. 4th 56, 84 (2009). A continuous nuisance is

one that can be abated at a reasonable cost; a permanent nuisance cannot be. Id.

The label “continuous nuisance” is quite confusing. California’s jury instruction on this

issue is illustrative: it states, “A nuisance is continuous if it can be discontinued.” Judicial

Council of California Civil Jury Instruction 2030 (“Affirmative Defense—Statute of

Limitations—Trespass or Private Nuisance”). It makes more sense to use a term like “abatable”

because that feature is what distinguishes the two categories. The remainder of this ruling thus

avoids the term “continuous nuisance.” The parties should plan to avoid the term at trial as well.

The distinction between permanent and abatable nuisances matters for the kind of

damages that plaintiffs can seek and the form of their legal action. When a nuisance is

permanent, the plaintiff must bring one lawsuit for all past, present, and future damages

(generally, the diminution in the property’s value caused by the nuisance). Starrh & Starrh

Cotton Growers v. Aera Energy LLC, 153 Cal. App. 4th 583, 592 (2007). When a nuisance is

abatable, in contrast, the plaintiff can only sue for past and present damages; “prospective

damages are not awarded because the [nuisance] may be discontinued or abated at some time,

ending the harm.” Id. If the nuisance is not abated, however, the plaintiff can continue to bring

lawsuits for damages in perpetuity. Id.

This distinction matters for the statute of limitations, too. The statute of limitations for

both permanent and abatable nuisances is three years, but the effect of that statute of limitations

depends on the kind of nuisance. The law considers a permanent nuisance to be “completed at

the time of entry,” triggering the statute of limitations. Id. As such, the plaintiff must file suit

within three years of obtaining notice of the permanent nuisance. McCoy, 180 Cal. App. 4th at

84. An abatable nuisance, in contrast, is “essentially a series of successive injuries, and the

statute of limitations begins anew with each injury.” Starrh, 153 Cal. App. 4th at 592. When a

nuisance is abatable, then, the plaintiff can sue for any damages that occurred within the three

years prior to that lawsuit—even if they had notice long before that. See id. Any claim for

damages outside of that three-year period is time-barred. Id.

Whether a nuisance is permanent or abatable is generally a question of fact for the jury.

Id. at 597. These same principles apply to claims for trespass. Id. at 594.

II.

HP and Agilent argue that the TCE contamination is a permanent nuisance because it

cannot be abated. If that’s true, then Stanford’s claim would be time-barred because Stanford has

long been aware of the contamination. Stanford, in turn, argues that it has already abated the

TCE contamination, and so the contamination is/was an abatable nuisance. Both sides agree that

Stanford’s lawsuit would be timely if it involved an abatable nuisance.

Although Stanford removed some of the contaminated soil from the property (as well as

the TCE-leaking sump), it determined that complete removal of the TCE was not feasible. See

Expert Opinion of Peter Scaramella, Dkt. No. 216-9 at 20. Stanford thus took actions to

minimize the effects of the remaining TCE. Among other “response actions,” Stanford lay clean,

compacted soil over areas of the property that had elevated TCE levels; it installed concrete slabs

under each house to prevent TCE vapors from escaping into the indoor air; and it installed utility

plugs in underground utility corridors to prevent the same.

HP and Agilent argue that, given this evidence, the TCE contamination is a permanent

nuisance as a matter of law. First, they argue the TCE has not been (and cannot be) abated

because Stanford concedes that some TCE remains on the property. See McCoy, 180 Cal. App.

4th at 89 (stating that a nuisance must be “cleaned up” to be abated). But in Capogeannis v.

Superior Court, the California Court of Appeal rejected this “essentially semantic argument that

because it does not appear the contamination can ever be wholly removed the nuisance must be

deemed permanent.” 12 Cal. App. 4th 668, 682–83 (1993). “[C]leanup standards set by

responsible public agencies sufficiently reflect expert appraisal of the best that can be done to

abate contamination in particular cases,” and the court would not “insist upon absolutes these

agencies do not require.” Id. at 683. Even where complete removal might be impossible, the

court held, a nuisance may still be deemed abatable. Id. at 682–83.

HP and Agilent argue that Capogeannis is distinguishable because it involved abatement

through excavation (even if that excavation did not result in complete removal of the

contamination). Here, in contrast, Stanford has taken other response actions to minimize the

effects of TCE, essentially “building around” the contamination. HP and Agilent argue that such

response actions—even if they receive regulatory approval—cannot constitute abatement as a

matter of law. But this distinction is artificial. Abatement can include attempts to minimize the

effects of a nuisance, even if the nuisance cannot be entirely stopped or removed. In Baker v.

Burbank-Glendale-Pasadena Airport Authority, for instance, the California Supreme Court held

that an airport was the “quintessential continuing nuisance,” even though federal law precluded

any interference with its flight patterns or schedules. 39 Cal. 3d 862, 873 (1985). Although that

preclusion “add[ed] an element of permanency to an otherwise continuing problem,” the

airport’s noise pollution could still be abated with “the use of buffers, barriers or other noise

reducing devices.” Id. Under Baker, then, abatement can include the kind of response actions

undertaken by Stanford. See also Highland Fifth-Orange Partners, LLC vy. Inland Fish & Game

Conservation Association, No. E049388, 2011 WL 3964084, at *5 (Cal. Ct. App. Sept. 9, 2011)

(holding that a nuisance was abatable where it could be effectively remediated not by removing

the contamination, but by “laying down a clay barrier” to protect groundwater and “human

activities above the layer”).

Finally, HP and Agilent argue the TCE contamination must be deemed permanent

because Stanford does not know its extent. See, e.g., McCoy, 180 Cal. App. 4th at 90, and

Mangini v. Aerojet-General Corp., 12 Cal. 4th 1087, 1095-96 (1996) (Mangini IJ). But in the

cases cited by HP and Agilent, the plaintiffs failed to present any evidence of the extent of the

contamination or the cost of abatement. In Mangini IT, for instance, even the plaintiff's attorney

conceded, “[N]obody really knows [the extent of the contamination], where it 1s, what the

chemicals are, or how much it’s going to cost to abate...” Jd. at 1095. Here, Stanford has

presented sufficient evidence of the extent of the contamination for the issue to go to the jury.

See, e.g., Letter from Department of Toxic Substances Control, Dkt. 216-6.

IT IS SO ORDERED.

Dated: September 19, 2022

VINCE CHHABRIA

United States District Judge