# Joint Appendix — Meghrig v. KFC Western, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0633%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 1995 - **Citation:** 515 U.S. 1192 ## Text 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 —— 23 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0633%3A07. Public record. Not legal advice.