Joint Appendix — Meghrig v. KFC Western, Inc.
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Supreme Court, U.§.
FILED
| NOV 9 1995
No. 95-83
CLERK
In The
Supreme Court of the United States
October Term, 1995
e
ALAN MEGHRIG AND MARGARET MEGHRIG,
Petitioners,
vs.
KFC WESTERN, INC.,
Respondent.
+
On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
¢
JOINT APPENDIX
e
JoHN P. Zaimes
Curton J. McFarLanp
McCuintock, WEsTON,
Danie, ROMANO BensHoor, ROCHEFORT,
100 Wilshire Blvd. Rusarcava & MacCuisu
Suite 1300 444 South Flower St., 43rd FI.
Santa Monica, CA 90401 Los Angeles, California 90071
(310) 451-4959 (213) 623-2322
Counsel for Respondent Counsel for Petitioners
—[—[——— ol SSESo—=lSSSS=S=S=S=I=I=EiEIClll@wlll®lullwl“lNe™QlNl™NlNlNl™“q™w—EqOeEOEOEO—OOOOOOeeee=E=_—e_e___—e___
Petition For Certiorari Filed July 13, 1995
Certiorari Granted September 27, 1995
a
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
TABLE OF CONTENTS
Relevant Docket Entries
Complaint in the United States District Court For
Cost Recovery, Contribution and Indemnity
Under RCRA, May 29, 1992
Order of the United States District Court for the
Central District of California, September 21,
1992 Pet App A-24
t in the United States Dis-
Restitution Under RCRA
§ 7002, 42 U.S.C. § 6972(a)(1)(b), October 1, 1992 ....
Order of the United States District Court for the
Central District of California Dismissing
Action, November 10, 1992 Pet App A-21
Order of the United States District Court of
Appeals for the Ninth Circuit, March 1,
Pet App A-1
Order of the United States District Court of
Appeals for the Ninth Circuit, April 14,
Pet App A-26
Order of the United States Supreme Court Granting
Petition for Writ of Certiorari, September 27, 1995 ....
Defendants’ Memorandum of Points and Authori-
ties in Opposition to Motion to Dismiss Action
in United States District Court Without Preju-
dice; Request for Imposition of Attorneys Fees
as Condition of Dismissal or, in the Alternative,
Request for Stay; Declaration of Stephanie
21
DATE
05/29/92
08/04/92
08/05/92
08/10/92
08/10/92
09/04/92
09/14/92
09/21/92
10/01/92
10/14/92
10/14/92
10/15/92
RELEVANT DOCKET ENTRIES
PROCEEDINGS
Complaint for Cost Recovery, Contribution
and Indemnity under RCRA
Meghrigs’ Notice of Pendency of Related
Action
Notice of Margaret and Alan Meghrigs’
Acknowledgment of Receipt of Summons
and Complaint
Meghrigs’ Notice of Motion and Motion to
Dismiss Complaint
Meghrigs’ Memorandum of Points and
Authorities in Support of Motion to Dismiss
Complaint
KFC Western's Opposition to Meghrigs’
Motion to Dismiss Complaint
Meghrigs’ Reply in Support of Motion to
Dismiss Complaint
Civil Minutes - Order Granting Meghrigs’
Motion to Dismiss with 10 Days Leave to
Amend
KFC Western's First Amended Complaint
Meghrigs’ Notice of Motion and Motion to
Dismiss First Amended Complaint
Meghrigs’ Memorandum of Points and
Authorities In Support of Motion to Dismiss
First Amended Complaint
Proof of Service of First Amended Com-
plaint by Mail on Environmental Protection
Agency
10/15/92
10/26/92
11/02/92
11/05/92
11/10/92
11/10/92
12/09/92
12/15/92
12/18/92
12/18/92
12/18/92
12/23/92
12/31/92
04/12/93
2
Proof of Service of First Amended Com-
plaint by Mail on Attorney General of the
United States, U.S. Department of Justice
KFC Western's Opposition to Meghrigs’
Motion to Dismiss First Amended Com-
plaint
Meghrigs’ Reply in Support of Motion to
Dismiss First Amended Complaint
KFC Western's Notice of Errata to Opposi-
tion to Motion to Dismiss First Amended
Complaint
Civil Minutes - Order Granting Motion to
Dismiss Without Leave to Amend
Order Dismissing Action In It’s Entirety
Without Prejudice
KFC Western’s Notice of Appeal from the
Court's Final Judgment Entered 11/10/92
KFC Western's Transcript Designation and
Ordering Form
Appellant's Civil Appeals Docketing State-
ment
Meghrigs’ Transcript Designation and
Ordering Form
United States Court of Appeals for the
Ninth Circuit Time Schedule Order
Meghrigs’ Amended Transcript Designation
and Ordering Form
Appellees’ Response to Appellant's Civil
Appeals Docketing Statement
Joint Stipulation re Stay of Appeal Pending
Disposition of State Action
04/20/93
05/03/93
05/06/93
06/10/93
06/18/93
06/23/93
03/01/95
03/15/95
04/14/95
06/07/95
06/29/95
07/05/95
08/17/95
09/15/95
09/15/95
3
United States Court of Appeals for the
Ninth Circuit Order Denying Joint Stipula-
tion for Stay
Excerpt of Record
Appellant’s Opening Brief
Appellees’ Brief
Certificate of Record
Appellant’s Reply Brief
United States Court of Appeals for the
Ninth Circuit Opinion Reversing and
Remanding the Judgment of the United
States District Court
Appellees’ Petition for Rehearing with Sug-
gestion for Rehearing En Banc
United States Court of Appeals for the
Ninth Circuit Order Denying Petition for
Rehearing
Civil Minutes - Mandate of Court of
Appeals is Filed and Spread upon the
Record
Meghrigs’ Answer to First Amended Com-
plaint
Order re Early Meeting of Counsel and
Mandatory Status Conference
Stipulation to Continue Mandatory Status
Conference and Order Thereon
KFC Western's Report of Early Meeting of
Counsel
Meghrigs’ Report re Early Meeting of Coun-
sel
09/15/95
09/15/95
09/20/95
10/02/95
10/05/95
10/06/95
10/10/95
10/10/95
10/10/95
4
KFC Western’s Notice of Motion and
Motion for Order Dismissing Action With-
out Prejudice; Memorandum of Points and
Authorities
KFC Western’s [Proposed] Order Granting
Motion to Dismiss Action Without Prejudice
Civil Minutes - Order Continuing Manda-
tory Status Conference; Order to Show
Cause re Lack of Prosecution and Sanctions
Declaration of Daniel Romano re Order to
Show Cause for Failure to Prosecute
Meghrigs’ Memorandum of Points and
Authorities in Opposition to Motion to Dis-
miss Without Prejudice; Request for Imposi-
tion of Attorneys’ Fees as Condition of
Dismissal or, In The Alternative, Request
for Stay; Declaration of Stephanie A.
Nigohosian
Declaration of John P. Zaimes re Order to
Show Cause for KFC Western’s Failure to
Prosecute
KFC Western’s Objections to Declaration of
Stephanie A. Nigohosian and Certain
Exhibits Attached Thereto
KFC Western’s Reply Memorandum of
Points and Authorities in Support of Motion
for Order Dismissing Action Without Preju-
dice; Supplemental Declaration of Daniel
Romano
Civil Minutes - Placing Motion to Dismiss
Off Calender Pending Decision by United
States Supreme Court
5
DANIEL ROMANO, Bar No. 117704
100 Wilshire Boulevard, Suite 1300
Santa Monica, CA 90401
(310) 451-4959
Attorneys for Plaintiff
KFC Western Inc.
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
KFC WESTERN, INC.,
Plaintiff,
CASE NO. 92 3269
HLH(SX)
COMPLAINT FOR
COST RECOVERY,
)
)
)
Vv. )
ALAN MEGHRIG and CONTRIBUTION AND
)
)
)
)
MARGARET MEGHRIG INDEMNITY UNDER
and DOES 1-10, RCRA
Defendants.
Plaintiff KFC Western, Inc. (“KFC”) alleges as fol-
lows:
INTRODUCTION
1. This action arises from the sale of certain real
property by defendants Alan Meghrig and Margaret
Meghrig (collectively the “Meghrigs” or “defendants”) to
plaintiff. The property consists of a parcel of land located
at 340 North Western Avenue, Los Angeles, California
(“property”). Plaintiff is informed and believes, and upon
such informaiton and belief alleges, that the property had
6
been the site of a gasoline station which also contained at
least one petroleum underground storage tank.
2. Defendant sold the property on September of
1975 to plaintiff. Plaintiff is the present owner of the
property, and at all times relevant herein has operated a
Kentucky Fried Chicken franchise on the property.
3. On or about October 1988, while performing var-
ious tasks pertaining to construction and grading at the
property, plaintiff, thrugh its engineer, discovered con-
taminated soil at the property. Thereafter, on October 26,
1988, the City of Los Angeles, Department of Building
and Safety issued a Corrective Notice, ordering that all
construction at the property stop pending analysis of the
contaminated soils, and obtaining a clearance from the
County of Los Angeles Department of Health Services
(“DHS”) pertaining to the cleanup of the contaminated
soils.
4. Subsequently, pursuant to the order by the City
of Los Angeles, plaintiff retained a consultant to perform
the necessary remedial work. Following his investigation,
plaintiff's consultant concluded that the property had,
among others, elevated Total Petroleum Hydrocarbons
(“TPH”) requring excavation of the heavily contaminated
soil for removal off-site and recycling of other contami-
nated soil. Plaintiff's consultant also concluded that the
contamination at the property was the result of release of
petroleum products from the operation of the gasoline
station and/or leakage from underground tanks contain-
ing petroleum at the property prior to plaintiff's owner-
ship of the property.
ee —
ee
5. The cleanup and removal of the contaminated
soil was performed in conjunction with the DHS. Remedi-
ation of the property was completed and the subject site
has met closure status w!'hin a period less than three
years from the date of this Complaint.
6. Plaintiff acquired the property with no know!-
edge of the presence of contaminated soil at the property,
and the release of TPH which gave rise to plaintiff's
cleanup activities pursuant to governmental directives. In
acquiring the property, plaintiff reasonably believed that
the property was fully in conformance with all applicable
laws, ordinances, orders, and regulations at the time of
the conveyance. As alleged below, at no time did the
defendants inform plaintiff of the presence of contami-
nated soil on the property, notwithstanding that defen-
dants knew, or should have known that such materials
were present in the soils at the property.
7. In taking all necessary steps to clean up the prop-
erty, including the costs of investigation, correcting and
otherwise complying with the government orders, plain-
tiff expended significant sums of money totaling at least
$211,296.23. In addition, plaintiff incurred, and continues
to incur, additional costs and expenses as a result of the
disposal of the contaminated soil off site. Plaintiff brings
this action against defendants to recover the costs
incurred in remedying the contaminated soil conditions,
bringing the property into conformance with all appli-
cable rules, regulations, and statutes, and disposing of
the contaminated soil off site.
JURISDICTION
8. This action is brought pursuant to Section 7002 of
the Resource Conservation and Recovery Act (“RCRA”),
42 U.S.C. Section 6972. This Court has jurisdiction of this
action pursuant to 42 U.S.C. Section 6972(a)(1)(B); 28
U.S.C. Sections 1331 and 1367.
VENUE
9. The claims asserted in this action arose within
this District. Venue of this action is proper pursuant to 42
U.S.C. Section 6972(a).
GENERAL ALLEGATIONS
10. At all times herein mentioned and presently,
KFC Western is a California corporation duly organized
to conduct business in the State of California.
11. Plaintiff is informed and believes, and upon
such information and belief alleges, that at all times
herein mentioned defendants have been and now are
residents of the State of California.
12. Plaintiff is unaware of the names and capacities
of the defendants named fictitiously herein as Does 1
through 10. Plaintiff will amend this complaint to allege
such names and capacities when the same are ascer-
tained. Plaintiff is informed and believes, and thereupon
alleges, that each of said defendants, Does 1 through 10,
is legally responsible for the damages alleged in this
complaint.
13. Plaintiff is informed and believes and, upon
such information and belief alleges, that defendants and
Does 1 through 10, and each of them, were at all times
herein mentioned the agents and/or employees of each
and every other defendant and were at all times men-
tioned herein acting within the purpose and scope of said
agency and/or employment, and were acting with the
authorization and ratification of each of the remaining
defendants.
14. Plaintiff is informed and believes, and alleges on
that basis, that defendants negligently handled, stored,
treated, disposed, discharged and otherwise carelessly
managed the gasoline station and petroleum on the prop-
erty, resulting in the contamination of the soils, as
described in paragraph 4 above.
15. On or about October 22, 1975, defendants con-
veyed the property to plaintiff KFC Western for a total
purchase price of $152,000.00.
16. By way of a letter dated June 29, 1990, plaintiff
informed defendants of the presence of contaminated
soils at the property, and plaintiff's clean-up activities in
connection thereto, and sought reimbursement of all costs
associated with plaintiff's remedial efforts on the prop-
erty. As of the date of this filing, defendants have failed
to acknowledge their responsibility for the costs incurred
by plaintiff to respond to the presence of contaminated
soils on the property, and to the release and threatened
release of the substances which defendants deposited and
then abandoned there.
17. Prior to the filing of this action, plaintiff sent a
letter to the Administrator of the U.S. EPA notifying him,
10
under 42 U.S.C. Section 6972(b)(1), of plaintiff’s intent to
pursue legal action against Defendants within the appro-
priate statutory period to recover its clean up costs.
Copies of the letter were sent to Defendants and to the
California DHS. The EPA and DHS did not respond to the
letter, and, to the best of plaintiff's knowledge, took no
legal action against defendants and incurred no costs to
initiate a remedial investigation and feasibility study on
the property.
18. As of the date of this filing, plaintiff has
absorbed entirely these costs.
-
FIRST CAUSE OF ACTION
(RCRA)
19. Plaintiff incorporates by reference the allega-
tions contained in paragraphs 1-18, as though fully set
forth herein.
20. Plaintiff is informed and believes, and on that
basis alleges, that defendants contributed to the past
handling, storage, treatment or disposal of a solid waste
at the Property, as those terms are defined in 42 U.S.C.
Section 6903.
21. Plaintiff is informed and believes, and on that
basis alleges, that the contaminated soil at the Property
contained “solid waste” as that term is defined in 42
U.S.C. Section 6903(27).
' 22. Plaintiff is informed and believes, and on that
basis alleges, that the activities of the defendants, and
each of them, may have presented an imminent and sub-
stantial endangerment to health and the environment.
11
23. Defendants’ conduct constitute a violation of
RCRA, and as a direct and proximate result thereof, Plain-
tiff has suffered economic detriment as more specifically
alleged below. Accordingly, Plaintiff is entitled to restitu-
tion of the costs it expended to clean up the Property.
DAMAGES
24. Plaintiff, the present owner of the property, has
incurred substantial costs associated with investigating
the degree and extent of soil contamination at the prop-
erty, as well as in taking appropriate remedial or removal
action to clean up the contaminated property, totaling at
least $211,296.23.
In addition, plaintiff incurs, and continues to incur,
substantial costs and damages associated with the off-site
disposal of the contaminated soil.
WHEREFORE, plaintiff prays for judgment against
defendants as follows:
1. For general damages according to proof, but
believed to exceed $211,296.23;
2. For general and special damages according to
proof associated with the off-site disposal of the contami-
nated soil by plaintiff;
3. For attorney fees and costs of suit herein; and
4. For such other and further relief as the court may
deem just and proper.
Dated: May 29, 1992 /s/ Daniel Romano
Daniel Romano
Attorneys for Plaintiff
KFC Western, Inc.
12
DANIEL ROMANO, Bar No. 117704
100 Wilshire Boulevard
Suite 1300
Santa Monica, California 90401
310/451-4959
Attorneys for Plaintiff
KFC Western, Inc.
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Case No. CV-92 3269-
HLH(Sx)
FIRST AMENDED
COMPLAINT FOR
KFC WESTERN, INC., _ )
)
)
)
ALAN MEGHRIG and EQUITABLE
)
)
)
)
Plaintiff,
Vv.
MARGARET MEGHRIG ) RESTITUTION UNDER
and DOES 1-10, RCRA SECTION 7002, 42
U.S.C. SECTION
Defendants. ) o79(a)(1)(B)
Plaintiff KFC Western, Inc. (“KFC”) alleges as fol-
lows:
INTRODUCTION
1. This action arises from the sale of certain real
property by Defendants Alan Meghrig and Margaret
Meghrig (collectively the “Meghrigs” or “Defendants”) to
Plaintiff. The property consists of a parcel of land located
at 340 North Western Avenue, Los Angeles, California
(“property”). Plaintiff is informed and believes, and upon
such information and belief alleges, that the property had
13
been the site of a gasoline station which also contained at
least one petroleum underground storage tank.
2. Defendants sold the property on September of
1975 to Plaintiff. Plaintiff is the present owner of the
property, and at all times relevant herein has operated a
Kentucky Fried Chicken franchise on the property.
3. On or about October 1988, while performing var-
ious tasks pertaining to construction and grading at the
property, Plaintiff, through its engineer, discovered con-
taminated soil at the property. Thereafter, on October 26,
1988, the City of Los Angles, Department of Building and
Safety, issued a Corrective Notice, ordering that all con-
struction at the property stop pending analysis of the
contaminated soils, and obtaining a clearance from the
City of Los Angeles Department of Health Services
(“DHS”) pertaining to the cleanup of the contaminated
soils.
4. Subsequently, pursuant to the order by the City
of Los Angeles, Plaintiff retained a consultant to perform
the necessary remedial work. Following his investigation,
Plaintiff's consultant concluded that the property had,
among others, elevated Total Petroleum Hydrocarbons
(“TPH”) requiring excavation of the heavily contami-
nated soil for removal off-site and recycling of other
contaminated soil. Plaintiff's consultant also concluded
that the contamination at the property was the result of
release of petroleum products from the operation of the
gasoline station and/or leakage from underground tanks
containing petroleum at the property prior to Plaintiff's
ownership of the property.
14
5. The cleanup and removal of the contaminated
soil was performed in conjunction with the DHS. Remedi-
ation of the property was completed and the subject site
has met closure status within a period less than three
years from the date of this Complaint.
6. Plaintiff acquired the property with no knowl-
edge of the presence of contaminated soil at the property,
and the release of TPH which gave rise to Plaintiff's
cleanup activities pursuant to governmental directives. In
acquiring the property, Plaintiff reasonably believed that
the property was fully in conformance with all applicable
laws, ordinances, orders, and regulations at the time of
the conveyance. At no time did the Defendants inform
Plaintiff of the presence of contaminated soil on the prop-
erty, notwithstanding that Defendants knew, or should
have known that such materials were present in the soils
at the property.
7. In taking all necessary steps to clean up the prop-
erty, including the costs of investigation, correcting and
otherwise complying with the government orders, Plain-
tiff expended significant sums of money totaling at least
$211,296.23. In addition, Plaintiff incurred, and continues
to incur, additional costs and expenses as a result of the
disposal of the contaminated soil off site. Plaintiff brings
this action against Defendants for equitable restitution of
the costs incurred in remedying the contaminated soil
conditions, bringing the property into conformance with
all applicable rules, regulations, and statutes, and dispos-
ing of the contaminated soil off site.
15
JURISDICTION
8. This action is brought pursuant to Section 7002 of
the Resource Conservation and Recovery Act (“RCRA”),
42 U.S.C. Section 6972(a)(1)(B). This Court has jurisdic-
tion of this action pursuant to 42 U.S.C. Section
9072(a)(1)(B); 28 U.S.C. Sections 1331 and 1367.
VENUE
9. The claims asserted in this action arise within this
District. Venue of this action is proper pursuant to 42
U.S.C. Section 6972(a).
GENERAL ALLEGATIONS
10. At all times herein mentioned and presently,
KFC Western is a California corporation duly organized
to conduct business in the State of California.
11. Plaintiff is informed and believes, and upon
such information and belief alleges, that at all times
herein mentioned Defendants have been and are now
residents of the State of California.
12. Plaintiff is unaware of the names and capacities
of the Defendants named fictitiously herein as Does 1
through 10. Plaintiff will amend this Complaint to allege
such names and capacities when the same are ascer-
tained. Plaintiff is informed and believes, and thereupon
alleges, that each of said Defendants, Does 1 through 10,
is legally responsible for the damages alleged in this
Complaint.
16
13. Plaintiff is informed and believes and, upon
such information and belief alleges, that Defendants and
Does 1 through 10, and each of them, were at all times
herein mentioned the agents and/or employees of each
and every other Defendant and were at all times men-
tioned herein acting within the purpose and scope of said
agency and/or employment, and were acting with the
authorization and ratification of each of the remaining
Defendants.
14. Plaintiff is informed and believes, and alleges on
that basis, that Defendants negligently handled, stored,
treated, disposed, discharged and otherwise carelessly
managed the gasoline station and petroleum on the prop-
erty, resulting in the contamination of the soils, as
described in paragraph 4, above.
15. On or about October 22, 1975, Defendants con-
veyed the property to Plaintiff KFC Western for a total
purchase price of $152,000.00.
16. By way of a letter dated June 29, 1990, Plaintiff
informed Defendants of the presence of contaminated
soils at the property, and Plaintiff's clean-up activities in
connection thereto, and sought reimbursement of all costs
associated with Plaintiff's remedial efforts on the prop-
erty. As of the date of this filing, Defendants have failed
to acknowledge their responsibility for the costs incurred
by Plaintiff to respond to the presence of contaminated
soils on the property, and to the release and threatened
release of the substances which Defendants deposited
and then abandoned there.
17. On or about October 1, 1990, more than ninety
(90) days prior to the filing of this action, Plaintiff sent a
17
letter to the Administrator of the U.S. EPA notifying him
of Plaintiff's intent to pursue legal action against Defen-
dants within the appropriate statutory period to recover
its clean up costs. Copies of the letter were sent to Defen-
dants and to the California DHS. The EPA and DHS did
not respond to the letter, and, to the best of Plaintiff's
knowledge, took no legal action against Defendants and
incurred no costs to initiate a remedial investigation and
feasibility study on the property.
18. A copy of Plaintiff's First Amended Complaint
has been served on the Attorney General of the United
States in conformance with 42 U.S.C. § 6972(b)(2)(F).
19. As of the date of this filing, Plaintiff has
absorbed entirely these costs.
FIRST CAUSE OF ACTION
(For Equitable Restitution Under
RCRA Section 7002(a)(1)(B))
20. Plaintiff incorporates by reference the allega-
tions contained in paragraphs 1-19, as though fully set
forth herein.
21. Plaintiff is informed and believes, and on that
basis alleges, that Defendants contributed to the past
handling, storage, treatment or disposal of a solid waste
at the property, as those terms are defined in 42 U.S.C.
Section 6903.
22. Plaintiff is informed and believes, and on that
basis alleges, that the contaminated soil at the property
contained “solid waste” as that term is defined in 42
U.S.C. Section 6903(27).
18
23. Plaintiff is informed and believes, and on that
basis alleges, that as a result of the activities of the
Defendants, and each of them, the contamination at the
property may have presented an imminent and substan-
tial endangerment to health and the environment by,
among other things, threatening the groundwater in the
area and potentially risking the health of patrons and the
public expected to use the property and the KFC fran-
chise thereon. This endangerment stems from the han-
dling, storage, treatment or disposal of solid waste by
Defendants at the property.
24. Defendants’ conduct constitutes a violation of
RCRA, and as a direct and proximate result thereof,
Plaintiff has suffered economic detriment as more speci-
fically alleged below. Accordingly, Plaintiff is entitled to
equitable restitution of the costs it expended to clean up
the property under 42 U.S.C. Section 6972(a).
25. Plaintiff, the present owner of the property, has
incurred substantial costs associated with investigating
the degree and extent of soil contamination at the prop-
erty, as well as in taking appropriate remedial or removal
action to clean up the contaminated property, totaling at
least $211,296.23.
In addition, Plaintiff incurs, and continues to incur,
substantial costs and damages associated with the off-site
disposal of the contaminated soil.
19
WHEREFORE, Plaiutiff prays for judgment against
Defendants as follows:
1. For equitable restitution of the environmental
clean up costs expended by it according to proof, but
believed to exceed $211,296.23;
2. For restitution of other costs according to proof
associated with the off-site disposal of the contaminated
soil by Plaintiff;
3. For attorney fees and costs of suit herein; and
4. For such other and further relief as the Court
may deem just and proper.
Dated: October 1, 1992
By /s/ Daniel Romano
Daniel Romano
Attorneys for Plaintiff
KFC Western, Inc.
20
PROOF OF SERVICE BY MAIL
I am employed in the County of Los Angeles, State of
California. | am over the age of eighteen and not a party
to the within action. My business address is 100 Wilshire
Blvd, Suite 1300, Santa Monica, CA 90401.
On October 1, 1992, I served the foregoing document,
described as FIRST AMENDED COMPLAINT FOR
EQUITABLE RESTITUTION UNDER RCRA SECTION
7002, 42 U.S.C. SECTION 6972(a)(1)(B) on the parties in
this action by placing a true copy thereof enclosed in a
sealed envelope with postage fully prepaid in the United
States Mail at Santa Monica, California, addressed as
follows:
John P. Zaimes, Esq.
McClintock, Weston, Benshoof,
Rochefort, Rubalcava & MacCuish
444 South Flower Street, Forty Third Floor
Los Angeles, CA 90071
Lourdes Baird
United States Attorney
312 North Spring Street
Los Angeles, CA 90012
I declare that I am employed in the office of a mem-
ber of the bar of this Court at whose direction the service
was made.
EXECUTED this Ist day of October, 1992 at Santa
Monica, California.
/s/ Trudy Ber
Trudy Berg
——_
21
SUPREME COURT OF THE UNITED STATES
No. 95-83
Alan Meghrig, et ux.,
Petitioners
v.
KEC [sic] Western, Inc.
ORDER ALLOWING CERTIORARI.
Filed September 27, 1995.
The petition herein for a writ of certiorari to the
United States Court of Appeals for the Ninth Circuit is
granted. The brief of petitioners is to be filed with the
Clerk and served upon opposing counsel on or before 3
p-m., Thursday, November 9, 1995. The brief of respon-
dent is to be filed with the Clerk and served upon oppos-
ing counsel on or before 3 p.m., Friday, December 8, 1995.
A reply brief, if any, is to be filed with the Clerk and
served upon opposing counsel on or before 3 p.m., Thurs-
day, December 28, 1995. Rule 29.2 does not apply.
September 27, 1995
22
JOHN P. ZAIMES (Bar No. 091933)
TERI L. BREUER (Bar No. 162557)
McCLINTOCK, WESTON, BENSHOOF,
ROCHEFORT, RUBALCAVA & MacCUISH
444 South Flower Street, Forty-Third Floor
Los Angeles, California 90071-2901
Telephone: (213) 623-2322
Attorneys for Defendants
ALAN MEGHRIG and MARGARET MEGHRIG
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Case No. CV-92 3269-HLH
(Sx)
Date: October 16, 1995
vs. Time: 10:00 a.m.
ALAN MEGHRIG and Courtroom of the
KFC WESTERN, INC. __)
)
)
)
)
MARGARET MEGHRIG ) Honorable Harry L. Hupp
)
)
)
)
Plaintiff,
and DOES 1-10,
Defendants.
(Filed Oct. 2, 1995)
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION TO DISMISS WITHOUT
PREJUDICE; REQUEST FOR IMPOSITION OF
ATTORNEYS FEES AS CONDITION OF
DISMISSAL OR, IN THE ALTERNATIVE,
REQUEST FOR STAY; DECLARATION OF
STEPHANIE A. NIGOHOSIAN
* * >
| l ——
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EXHIBIT A
JOHN P. ZAIMES (Bar No. 091933)
McCLINTOCK, WESTON, BENSHOOF,
ROCHEFORT, RUBALCAVA & MacCUISH
444 South Flower Street, Forty-Third Floor
Los Angeles, California 90071-2901
Telephone: (213) 623-2322
Attorneys for Defendants
ALAN MEGHRIG and MARGARET MEGHRIG
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
KFC WESTERN, INC.,
Plaintiff,
CASE NO. BC 043874
AMENDED ORDER WITH
FINDINGS OF FACT
AND CONCLUSIONS OF
LAW
vs.
)
)
)
)
ALAN MEGHRIG and?
MARGARET MEGHRIG) ?
and DOES 1-10,
)
)
Defendants.
(Filed Aug. 21, 1995)
PLEASE TAKE NOTICE that the Motion for Sum-
mary Judgment of Defendants Alan Meghrig and Marga-
ret Meghrig (the “Meghrigs”) in the above-captioned
matter came on regularly for hearing at 8:30 a.m. on July
11, 1995 before the Honorable Stephen E. O’Neil in
Department 46 of the above-entitled Court. John P.
Zaimes of McClintock, Weston, Benshoof, Rochefort,
Rubalcava & MacCuish appeared on behalf of defendants
and moving parties, the Meghrigs; Daniel Romano
Ee
24
appeared on behalf of plaintiff and responding party KFC
Western, Inc.
After considering the papers filed in support of, and
in opposition to, the Meghrigs’ Motion for Summary
Judgment, and the oral argument of counsel, the Court
makes the following findings of facts and conclusions of
law and grants summary judgment in favor of defen-
dants.
FINDINGS OF FACT
1. Plaintiff is the owner of real property located at
340 North Western Avenue in Los Angeles, California (the
“Subject Property”). (Defendants’ Undisputed Fact No.
1.)
2. The Meghrigs took title to the Subject Property in
March 1963. (Defendants’ Undisputed Fact No. 2.)
3. The Meghrigs never owned a gasoline service
station business on the Subject Property. (Defendants’
Undisputed Fact No. 3; Defendants’ Objections to Plain-
tiff’s Response to Fact No. 3.)
4. The Meghrigs never operated a gasoline service
station located on the Subject Property. (Defendants’
Undisputed Fact No. 4.)
5. A sefvice station did not operate on the Subject
Property during the period of the Meghrigs’ ownership.
(Defendants’ Undisputed Fact No. 5.)
6. The Meghrigs took no part in the management of
the Subject Property during the 1960s. (Defendants’
Undisputed Fact No. 6.)
25
7. The Meghrigs never undertook any acts which
caused gasoline contamination on the Subject Property.
(Defendants’ Undisputed Fact No. 7.)
8. There was a gasoline service station on the Sub-
ject Property from 1917 until 1962, prior to the property's
ownership of the Meghrigs. (Defendants’ Undisputed
Fact No. 8.)
9. Underground storage tanks on the Subject Prop-
erty were replaced in 1951. (Defendants’ Undisputed Fact
No. 9.) F
10. Underground storage tanks on the Subject Prop-
erty were completely removed in December 1964. No
tanks were placed on the Subject Property thereafter.
(Defendants’ Undisputed . act No. 12.)
11. A strip mall was constructed on the Subject
Property in 1965. Plaintiff leased a portion of the strip
mall from the Meghrigs from May 1965 to the time the
Subject Property was sold to plaintiff in 1975. (Defen-
dants’ Undisputed Fact No. 10.)
12. Plaintiff discovered the contamination on the
Subject Property on or about October 26, 1988. (Defen-
dants’ Undisputed Fact No. 11.)
13. Plaintiff completed its cleanup of the Subject
Property on or before March 12, 1989. (Defendants’
Undisputed Fact No. 13.)
14. Plaintiff filed its initial complaint in this matter
on December 9, 1991. (Defendants’ Undisputed Fact No.
14.)
26
15. There is no evidence that plaintiff suffered any
actual damage arising out of the contamination of
groundwater after December 1, 1988. In fact, plaintiffs’
own evidence shows that the groundwater beneath the
Subject Property contained less than action level amounts
of contaminants in 1988, and no groundwater cleanup
was necessary. (Defendants’ Undisputed Fact No. 15;
Defendants’ Objections to Plaintiffs’ Response to Fact No.
15.)
16. There is no evidence that plaintiff suffered any
actual damage arising out of soil contamination after
December 1, 1988. In fact, plaintiffs’ own evidence shows
that the soil contamination at the Subject Property had
naturally biodegraded over time and was decreasing dur-
ing the 1980s. (Defendants’ Undisputed Fact No. 16;
Defendants’ Objections to Plaintiffs’ Response to Fact No.
16.)
17. There is no evidence that the Meghrigs had
either actual or constructive knowledge of contamination
on the Subject Property. (Defendants’ Objections to Plain-
tiffs’ Fact No. 17.)
CONCLUSIONS OF LAW
1. Having presented no evidence that the Meghrigs
engaged in any acts, or tortiously omitted to undertake
any act, which resulted in contamination of the Subject
Property, plaintiff KFC Western, Inc.’s causes of action for
continuing public nuisance, private nuisance and trespass
fail as a matter of law. Newhal! Land & Farming v. Superior
Court, 19 Cal.App.4th 334, 345, 23 Cal.Rptr. 2d 377, 383
(1993); RTC v. Rossmoor Corp., 34 Cal.App.4th 93 (1995);
27
Lussier v. San Lorenzo Valley Water District, 206 Cal.App.3d
92, 100, 253 Cal.Rptr. 470 (1988).
2. Having presented no evidence that it suffered
any damage within the applicable three-year limitations
period, plaintiff KFC Western, Inc.’s causes of action for
continuing public nuisance, private nuisance and trespass
fail as a matter of law. Capogeannis v. Superior Court, 12
Cal.App.4th 668, 676, 15 Cal.Rptr.2d 796 (1993).
3. The money expended by plaintiff to clean up the
Subject Property does not constitute damage to the prop-
erty arising out of nuisance or trespass. CAMSI IV v.
Hunter Technology Corporation, 230 Cal.App.3d 1525, 282
Cal.Rptr. 80 (1991).
4. Civil Code Section 3483 does not provide a mech-
anism for a current owner of property to recover costs it
expends in abating a nuisance on its property from the
immediately preceding owner where the immediately
preceding owner did not engage in any acts or omissions
which resulted in the creation of the nuisance. Leslie Salt
Co. v. San Francisco Bay Cons. & Dev. Comm., 153
Cal.App.3d 605, 200 Cal.Rptr. 575 (1989); People v. South-
ern Pacific Co., 150 Cal.App.2d Supp. 831, 311 P.2d 200
(1957).
5. To the extent that Civil Code Section 3483 may
provide a mechanism for a current owner of property to
recover its costs expended in abating a nuisance on its
property from a prior owner, recovery may be had only if
the prior owner knew of the existence of the nuisance.
Since KFC has presented no competent evidence that the
Meghrigs knew of the existence of contamination on the
28
Subject Property during their ownership, KFC’s continu-
ing public nuisance and private nuisance causes of action
fail, as a matter of law. Reinhard v. Lawrence Warehouse Co.,
42 Cal.App.2d 741, 107 P.2d 501, (1940).
ORDER
IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that summary judgment is granted in favor of
the Meghrigs and against plaintiff on the grounds that
there is no triable issue of material fact with respect to the
nuisance and trespass causes of action contained in plain-
tiff’s complaint and that the Meghrigs are entitled to
judgment as a matter of law.
DATED: AUG 21 1995 STEPHEN E. O’NEIL
JUDGE OF THE
SUPERIOR COURT
29
(PROOF OF SERVICE - 1013a, 2015.5 C.C.P.)
STATE OF CALIFORNIA ]
] ss.
COUNTY OF LOS ANGELES |}
I am employed in the County of Los Angeles, State of
California. I am over the age of 18 and not a party to the
within action; my business address is 444 South Flower
Street, Forty-Third Floor, Los Angeles, California 90071.
On August 3, 1995, I served the foregoing docu-
ment(s) described as AMENDED ORDER WITH FIND-
INGS OF FACT AND CONCLUSIONS OF LAW on the
interested parties in this action by placing a true copy
thereof enclosed in a sealed envelope addressed as fol-
lows:
Daniel Romano, Esq.
100 Wilshire Boulevard
Suite 1300
Santa Monica, California 90401
X I placed such envelope with postage thereon fully
prepaid in the United States mail at Los Angeles, Califor-
nia.
X I am “readily familiar” with the firm's practice of
collection and processing correspondence for mailing.
Under that practice, it would be deposited with U.S.
postal service on that same day with postage thereon
fully prepaid at Los Angeles, California in the ordinary
course of business. | am aware that on motion of the
30
party served, service is presumed invalid if postal can- EXHIBIT B
cellation date or postage meter date is more than one day s .
after date of deposit for mailing in affidavit.
_ I sent such document(s) by Federal Express /UPS Air.
_ I delivered such envelope by hand to the offices of the
addressees.
X I declare under penalty of perjury under the laws of
the State of California that the above is true and correct.
_ Ideclare that I am employed in the office of a member
of the bar of this court at whose direction the service was
made.
Executed on August 3, 1995, at Los Angeles, Califor-
nia.
/s/ Alicia D. Araneta
Alicia D. Araneta
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