Robert E. Renzel Trust et al v. Ventura et al

Northern District of California, cand-4:2015-cv-01648

ORDER by Judge Haywood S. Gilliam, Jr. DENYING PLAINTIFFS {{174}} MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS CARMEN AND ALFREDO TORRES'S {{187}} MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY PARTIAL SUMMARY JUDGMENT. Case Management Statement due by 9/4/2018 and Case Management Conference set for 9/11/2018 02:00 PM in Oakland, Courtroom 2, 4th Floor.

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1 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT E. RENZEL TRUST, et al., Case No. 15-cv-01648-HSG 8 Plaintiffs, ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY 9 v. JUDGMENT AND DENYING DEFENDANTS CARMEN AND 10 ALFREDO TORRES, et al., ALFREDO TORRES'S MOTION FOR SUMMARY JUDGMENT OR 11 Defendants. ALTERNATIVELY PARTIAL SUMMARY JUDGMENT 12 Northern District of California United States District Court Re: Dkt. Nos. 174, 187 13 14 In their second amended complaint, Plaintiffs the Estate of Robert Renzel, by and through 15 his successors in interest; Robert E. Renzel Trust, by and through its trustees; Susan Carter; Ann 16 Renzel Sebastian; and Bascom Avenue Development LLC (collectively, "Renzel") assert thirteen 17 causes of action against twenty-eight different owner-operators of Ritz Cleaners (collectively, "Defendants"). See Dkt. No. 67 ("SAC"). Ritz Cleaners is a dry cleaning business on property 18 located at 520-526 S. Bascom Avenue (formerly known as 520-526 San Jose-Los Gatos Road), 19 San Jose, California (the "Property"). Id. ¶ 2. Plaintiffs primarily seek cost recovery from 20 Defendants under Section 107 of the Comprehensive Environmental Response, Compensation and 21 Liability Act ("CERCLA"), 42 U.S.C. § 9607. Various cross claims and counterclaims have been 22 asserted. 23 On September 14, 2017, the Court heard argument on Renzel's motion for partial summary 24 judgment against Defendants Alfredo and Carmen Torres (collectively, "the Torres Defendants" or 25 "Torres"). See Dkt. No. 174 ("Renzel Mot."). The motion is fully briefed. See Dkt. Nos. 179 26 ("Torres Opp."), 182 ("Renzel Reply"). Following oral argument, the Court took the motion 27 under submission. On September 12, 2017, Torres also filed a motion for summary judgment. 28 See Dkt. No. 187 ("Torres Mot."). That motion is now fully briefed. Dkt. Nos. 199 ("Renzel 1 1 Opp."), 210 ("Torres Reply"). The Court took the motion under submission on November 14, 2 2017. See Dkt. No. 212.1 After carefully considering the parties' arguments, the Court DENIES 3 the motions. 4 I. BACKGROUND 5 Some basic facts are not in dispute. Renzel owns the Property. SAC ¶¶ 3–7. Renzel 6 leased the Property to various dry cleaning owner-operators of Ritz Cleaners for seventy-one 7 years, from at least 1941 to 2012. Id. ¶¶ 3–37. The Torres Defendants operated Ritz Cleaners for 8 approximately six years, from 1980 to 1986, under the terms of two different lease agreements, 9 beginning respectively on October 1, 1980 and October 1, 1986. Id. ¶¶ 22–23; Dkt. Nos. 175-1 10 ("the 1980 Lease"), 175-2 ("the 1986 Lease"). During this time, the Torres Defendants ran a dry 11 cleaning machine about once per week. See Dkt. No. 179-2, 53:1–10, 54:1–2, 123:25–124:1. 12 There was an initial period during which the dry cleaning machine was not working. See id. Northern District of California United States District Court 13 Plaintiffs were "first made aware" of evidence regarding the release of a hazardous 14 substance, tetrachloroethylene ("PCE"), on the Property through an environmental investigation in 15 2012. SAC ¶ 64; see Dkt. No. 175-9 ("Stone Decl."), Ex. I (providing an environmental site 16 assessment stating that pollutants have reached groundwater in the Property's vicinity). Plaintiffs 17 allege that each Defendant, including the Torres Defendants, caused a release of PCE that spread 18 and migrated from the Property, and that each Defendant failed to abate this contamination. SAC 19 ¶ 50. 20 II. LEGAL STANDARD 21 Summary judgment is proper when a "movant shows that there is no genuine dispute as to 22 any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 23 A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson 24 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" if there is evidence in the 25 record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. The 26 Court views the inferences reasonably drawn from the materials in the record in the light most 27 1 28 The Court finds that this matter is appropriate for disposition without oral argument. See Civil L.R. 7-1. 2 1 1 favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 2 574, 587–88 (1986), and "may not weigh the evidence or make credibility determinations," 3 Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled on other grounds by Shakur v. 4 Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008). 5 The moving party bears both the ultimate burden of persuasion and the initial burden of 6 producing those portions of the pleadings, discovery, and affidavits that show the absence of a 7 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the 8 moving party will not bear the burden of proof on an issue at trial, it "must either produce 9 evidence negating an essential element of the nonmoving party's claim or defense or show that the 10 nonmoving party does not have enough evidence of an essential element to carry its ultimate 11 burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 12 (9th Cir. 2000). Where the moving party will bear the burden of proof on an issue at trial, it must Northern District of California United States District Court 13 also show that no reasonable trier of fact could not find in its favor. Celotex Corp., 477 U.S. at 14 325. In either case, the movant "may not require the nonmoving party to produce evidence 15 supporting its claim or defense simply by saying that the nonmoving party has no such evidence." 16 Nissan Fire & Marine Ins. Co., 210 F.3d at 1105. "If a moving party fails to carry its initial 17 burden of production, the nonmoving party has no obligation to produce anything, even if the 18 nonmoving party would have the ultimate burden of persuasion at trial." Id. at 1102–03. 19 "If, however, a moving party carries its burden of production, the nonmoving party must 20 produce evidence to support its claim or defense." Id. at 1103. In doing so, the nonmoving party 21 "must do more than simply show that there is some metaphysical doubt as to the material facts." 22 Matsushita Elec. Indus. Co., 475 U.S. at 586. A nonmoving party must also "identify with 23 reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 24 F.3d 1275, 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its 25 claim or defense, courts enter summary judgment in favor of the movant. Celotex Corp., 477 U.S. 26 at 323. 27 III. DISCUSSION 28 In moving for partial summary judgment, Plaintiffs seek a ruling on the issue of "Torres's 3 1 1 indemnity of and duty to defend Renzel under the terms of the Torres lease agreements." Renzel 2 Mot. at 1. In addition, Renzel requests "an order declaring that Torres must fulfill [their] 3 obligation to indemnify, defend, and hold harmless Renzel from the fees and costs associated with 4 the contamination, including environmental response costs, attorneys' fees, and loss of use of the 5 Property." Id. In opposition to Renzel's motion, the Torres Defendants highlight the lack of 6 factual evidence establishing: (1) that they caused or contributed to PCE contamination of the 7 Property; and (2) that other operators of Ritz Cleaners were equally, if not more, culpable for 8 contamination of the Property. See Torres Opp. at 4–6. Torres accordingly claims that summary 9 judgment is inappropriate and that they have no duty to indemnify Renzel. See id. at 6, 19–20. 10 The Torres Defendants set forth substantively similar arguments in their motion for 11 summary judgment. Specifically, Torres argues that all of Renzel's claims are dependent on the 12 same "unsupported allegation of a release caused by Torres." Torres Mot. at 3. In opposing Northern District of California United States District Court 13 Torres's motion, Plaintiffs attach two expert declarations that they represent as creating triable 14 issues of fact as to whether Torres unlawfully caused or contributed to a release or threatened 15 release of PCE on the Property. See Renzel Opp. at 7–10; Dkt. Nos. 204 ("Love Decl."), 205 16 ("Sadler Decl."). Plaintiffs do not dispute that liability for both their federal and state law claims 17 requires a showing that Torres contributed to or caused PCE contamination on the Property. See 18 Torres Mot. at 3; Torres Reply at 1. The Court therefore begins with Renzel's primary claim for 19 cost recovery under CERCLA, on which Torres moves for summary judgment. 20 A. Cost Recovery Under CERCLA 21 To recover costs under CERCLA, Renzel must establish that: 22 (1) the site on which the hazardous substances are contained is a facility under CERCLA's definition of that term; (2) a release or 23 threatened release of any hazardous substance from the facility has occurred; (3) such release or threatened release has caused the 24 plaintiff to incur response costs that were necessary and consistent with the national contingency plan, and (4) the defendant is within 25 one of four classes of persons subject to the liability provisions of Section 107(a). 26 27 3550 Stevens Creek Assocs. v. Barclays Bank of California, 915 F.2d 1355, 1358 (9th Cir. 1990) 28 (internal citations and quotations omitted). The Ninth Circuit construes CERCLA "liberally" to 4 1 1 achieve the statute's "two primary purposes": first, "to provide the federal government with the 2 means to effectively control the spread of hazardous materials from inactive and abandoned waste 3 disposal site"; and second "to affix the ultimate cost of cleaning up these disposal sites to the 4 parties responsible for the contamination." Kaiser Aluminum & Chem. Corp. v. Catellus Dev. 5 Corp., 976 F.2d 1338, 1340 (9th Cir. 1992) (citing Anspec Co., Inc. v. Johnson Controls, Inc., 922 6 F.2d 1240, 1247 (6th Cir.1991)). Here, the parties do not seriously dispute the first, third, or 7 fourth above-stated elements required for cost recovery. See 3550 Stevens Creek Assocs., 915 8 F.2d at 1358. Rather, the key question on summary judgment is whether there is sufficient 9 evidence of a "release" or "threatened release" by Torres to create a genuine factual dispute for 10 trial. 11 The evidence presented precludes summary judgment in either party's favor. Torres is 12 correct that Renzel fails to offer direct evidence that Torres caused PCE contamination on the Northern District of California United States District Court 13 Property. See Torres Opp. at 19–20. Nonetheless, in opposing Torres's motion, Renzel presents 14 circumstantial evidence that, when all inferences are taken in Plaintiffs' favor, suggests that Torres 15 may have caused or threatened to cause PCE contamination on the Property between 1980 and 16 1986. For instance, Carmen Torres admitted in her deposition that she: (1) operated the dry 17 cleaning machine approximately once a week, Dkt. No. 179-2 ("Torres Dep."), 53:1–10, 54:1–2, 18 123:25–124:1; (2) ordered PCE approximately ten times over six years, id. at 80:8–81:14; (3) 19 learned how to operate the dry cleaning machine from the prior owner-operator, Celia Ventura, 20 who also used and left behind PCE at the Property, id. at 91:18–92:1; and (4) did not place 21 underneath the dry cleaning machine any kind of "catch pan" to avoid PCE spillage, id. at 180:4– 22 16. Additional deposition testimony shows that Ms. Torres instructed the subsequent owner- 23 operator of Ritz Cleaners, Seon Geun Whang, how to operate and clean out PCE from the dry 24 cleaning machine (which was the same machine used by Torres). See Dkt. No. 200-2 ("Wang 25 Dep.") at 27:20–29:6, 44:5–8, 46:2–9. Environmental investigations and site reports demonstrate 26 that PCE was released and caused contamination while Ritz Cleaners was in operation. See Dkt 27 Nos. 202, 200-1; Dkt. No. 187-1 ("Tropea Decl."), Ex. 12 (1998 official inspection by the County 28 of Santa Clara observing improper storage/disposal of wastewater containing hazardous 5 1 1 substances), Ex. 13 (2006 official inspection by the County of Santa Clara noting "observed 2 spillage from waste PERC [PCE] drums"). 3 Other courts in this circuit have found summary judgment inappropriate in analogous 4 circumstances. For instance, in Lincoln Properties, Ltd. v. Higgins, a California district court 5 found a factual dispute sufficient to withstand summary judgment despite the absence of any 6 "direct evidence that PCE (or any other contaminant) was released [by the defendant] from the 7 wells 'into the environment.'" 823 F. Supp. 1528, 1538 (E.D. Cal. 1992). The court concluded 8 that a triable factual dispute existed based partly on a "fair inference. . . that PCE is heavier than 9 water" and expert testimony as to possibility of PCE migration. See id. at 1538–39 ("The trier of 10 fact could infer from this evidence that there is a threat of PCE release from Wells 1 and 2 into 11 Zone 'C.'"). So too in Walnut Creek Manor, LLC v. Mayhew Ctr., LLC., 622 F. Supp. 2d 918, 12 927–928 (N.D. Cal. 2009). In that case, a court in this district found a material dispute of fact Northern District of California United States District Court 13 precluding summary judgment despite the absence of "direct evidence" that persons on the 14 defendant's property used PCE. See 622 F. Supp. at 928. In reaching that holding, the court 15 found sufficient "circumstantial evidence of PCE use on [the defendant's] property" consisting of 16 (1) the plaintiff's "environmental studies," and (2) "the fact that a company once located on [the 17 defendant's] property, Etch–Tek, was in a business that typically used PCE, although the owner of 18 Etch–Tek testified that he never used PCE." Id. 19 Finally, in Ed Niemi Oil Co. v. Exxon Mobil Corp., a district court again declined to award 20 summary judgment based on a circumstantial showing strikingly similar to that in this case. See 21 No. 3:11-CV-00214-MO, 2013 WL 957007, at *6 (D. Or. Mar. 11, 2013). The evidence in Ed 22 Niemi Oil Co. included: (1) facts showing that hazardous material were "stored at, and dispensed 23 from" the relevant property during the defendant's ownership; and (2) expert testimony as to 24 "standard industry practices" at the time of the alleged release of petroleum products. See id. The 25 district court concluded that there was a "genuine issue of material fact" as to the defendant's 26 liability, noting that the plaintiff "need not prove either the occurrence of any particular release, or 27 that [the defendant] caused it." Id. The court concluded that instead the plaintiff "must prove that 28 a release occurred during [the defendant's] period of ownership that caused the incurrence of 6 1 1 remediation costs." Id. 2 As in these cases, the trier of fact could find Torres liable for a release or threatened release 3 based in part on the above referenced testimony and site reports. In addition, Renzel offers expert 4 declarations that further show the existence of disputed facts underlying Torres's alleged release 5 or potential release. In considering "the long-term use of PCE at the site, the use of transfer dry- 6 cleaning equipment at the site, and the location of PCE soil contamination with respect to the dry- 7 cleaning machine at the site," Dr. Love, Plaintiffs' environmental forensics expert, opined that 8 "PCE was released to the floor slab inside the Ritz Cleaners facility and the walkway outside the 9 rear door of the facility." Love Decl. ¶ 29. Dr. Love then describes how PCE could migrate 10 through the soil into the groundwater. Id. ¶ 30. Notwithstanding his opinion as to PCE spillage on 11 the Property, Dr. Love states that "[a]pportioning contribution of PCE released for each of the 12 owner/operator periods at this Site is not possible" due to the "lack of information that can be used Northern District of California United States District Court 13 to differentiate PCE releases over time." Id. ¶ 33. According to Dr. Love, the information 14 available is "insufficient to inform a reliable estimate of discrete release timing during different 15 owner/operator intervals based on calculating PCE transport rates," and any attempt to calculate 16 the "timing of PCE release would have an unreliably high uncertainty." See Love Decl. ¶¶ 33–37. 17 The inability to isolate relative PCE release times is, in part, a function of "accumulation of PCE 18 releases from facility operations [over] time." Id. ¶ 37. 19 In addition to Dr. Love's statements, Mr. Sadler describes the typical operation of dry 20 cleaning machines that use PCE as a solvent. See Sadler Decl. ¶¶ 12–13, 20. Based on his review 21 of the evidence, experience in the dry cleaning industry, and familiarity with these machines, Mr. 22 Sadler opines that the equipment used by Torres and Wang was a "first-generation transfer unit," 23 which requires "[t]ransfer of wet PCE-laden garments." Id. ¶¶ 2, 12–13. This transfer can "at 24 times lead to PCE dripping onto the floor due to the physical handling of those garments and 25 transferring them between units." Id. In addition, Mr. Sadler describes how accidental leaks of 26 PCE can occur from the delivery truck. Id. ¶ 22. 27 Torres objects to certain portions of both Dr. Love and Mr. Sadler's declarations as 28 speculative and as lacking foundation under Federal Rule of Evidence ("Rule") 702(b). See Dkt. 7 1 1 Nos. 210-1, 210-2. Rule 702(b) requires expert testimony to be "based on sufficient facts or data." 2 To the extent that the Court relies on these declarations, it does so for Dr. Love's opinion as to the 3 migration pattern of PCE, and Mr. Sadler's explanation of how dry cleaning machines typically 4 function. That testimony is properly based on Dr. Love and Mr. Sadler's respective experience 5 and their review of the evidence. See Fed. R. Evid. 702. Torres, notably, does not object to either 6 expert's methodology as lacking in relevance or reliability under Daubert v. Merrell Dow 7 Pharmaceuticals, Inc., 509 U.S. 579 (1993). Cf. Walnut Creek Manor, LLC, 622 F. Supp. 2d at 8 928 (declining to exclude expert testimony under Daubert, finding that "the fact that the 9 groundwater has not been tested on [the plaintiff's] property does not mean that Schutze should 10 not be heard to opine that the contamination travelled from WCM property via groundwater."). 11 The Torres Defendants have also failed to set forth expert testimony to show that they are not 12 liable for any release or threatened release of PCE on the Property. In view of Renzel's evidence Northern District of California United States District Court 13 and expert testimony, and taking all inferences in Plaintiffs' favor, the Court concludes that 14 genuine factual disputes over Torres's potential release or threatened release preclude summary 15 judgment.2 16 B. Torres's Duty to Defend and Indemnify 17 Considering that a factual dispute precludes summary judgment as to Torres's liability for 18 a release or threatened release, the Court finds that it would be similarly premature to decide the 19 issues of Torres's duty to defend and indemnify Renzel. Though Plaintiffs at times assert in their 20 motion that the issue of indemnity can and should be decided before liability, see Renzel Mot. at 21 9, they also claim that "Torres must indemnify Renzel for the reasonable costs of abating the 22 contamination to the extent Renzel is found liable." Id. at 10 (emphasis added). Torres highlights 23 that the issue of indemnity cannot be separated from the question of liability, see Torres Opp. at 24 17, also citing language from the 1980 and 1986 Lease. The Court agrees, considering especially 25 2 26 Torres also objects to and moves to strike as irrelevant numerous exhibits to the Declaration of Kirk Tracy. See Dkt. Nos. 210-3, 200. Torres represents that many of the exhibits attached to 27 Tracy's declaration are not referenced in Renzel's opposition to Torres's motion for summary judgment. The Court does not rely on any exhibits that are not referenced in Renzel's opposition, 28 and therefore DENIES AS MOOT Torres's motion to strike. 8 1 1 that any one of the other twenty-six named Defendants could owe a comparable duty to defend 2 and indemnify Renzel. See 1980 Lease at 4 ("[T]he Lessee will hold the Lessor harmless from all 3 costs, charges and expenses, including court costs and counsel fees, in respect to such injury or 4 injuries, liabilities, claims and suits, and also in respect to all claims arising from any omission or 5 act of negligence of the Lessee or any of his agents, contractors or employees.") (emphasis added); 6 1986 Lease at 3 ("This lease is made upon the express condition that Lessee agrees to keep, save 7 and hold Lessor free from all liability, penalties, losses, damages, costs, expenses, causes of 8 action, claims and/or judgments arising by reason of any injury or damage to any person or 9 persons. . . from any cause or causes whatsoever, including leakage. . . . Lessee hearby 10 covenanting and agreeing to indemnify, protect and save Lessor harmless from all liability, loss, 11 costs and obligations on account of or arising out of any such injuries or losses however 12 occurring.") (emphasis added); SAC ¶ 119 ("Each lease with Defendants obligated Defendants to Northern District of California United States District Court 13 hold harmless and indemnify the respective landlord plaintiff for all liability, losses, damages, 14 costs, expenses, causes of action, claims and/or judgments for injury or damage to any person or 15 property, including the damage to the Property alleged herein."); see also Ed Niemi Oil Co., 2013 16 WL 957007, at *9 ("[B]ecause I cannot conclude as a matter of law that Exxon Mobil is not liable 17 for any of the remediation costs at the Bulk Plant, and because there are genuine issues of fact as 18 to the allocation of liability, summary judgment is inappropriate."). 19 Furthermore, in opposition to Torres's motion, Renzel expressly acknowledges that "[a] 20 dispute of material fact exists regarding Renzel's breach of contract claim," Renzel Opp. at 10; 21 and "[a] dispute of material fact exists regarding Renzel's express indemnity claim," id. at 11. 22 Renzel moves for partial summary judgment precisely on these issues: that is, Torres's contractual 23 duty to defend and indemnify Renzel. Though Torres also moves for summary judgment on 24 Renzel's equitable indemnity claim, Torres acknowledges in reference to its primary authorities 25 that a "plaintiff's 'claim for equitable indemnification would necessarily hinge on the resolution of 26 the CERCLA claim, because CERCLA provides the sole means of determining liability.'" Torres 27 Mot. at 16–17 (quoting Reg'l Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, 711 (6th Cir. 28 2006)). Renzel agrees. See Renzel Opp. at 15–16. Given the apparent consensus between Renzel 9 1 1 and Torres that duty and indemnity issues are subject to material disputes of fact precluding 2 summary judgment, the Court concludes that deciding these issues would be inappropriate at this 3 stage.3 4 C. Renzel's Remaining Claims 5 As discussed, there is no dispute that Renzel's state law claims are predicated on a release 6 or threatened release of PCE on the Property, or are otherwise derivative of their cost recovery 7 claim under CERCLA. See Torres Reply at 1, 3; Torres Mot. at 12–20. Considering that there is a 8 genuine factual dispute as to Torres's responsibility for these releases, summary judgment as to 9 these claims is unwarranted. 10 With regard to Renzel's strict liability claim, both parties assert that the Court can 11 determine as a matter of law whether use of PCE in the dry cleaning industry is an ultrahazardous 12 activity. But California courts have not decided that issue in a uniform manner (that is, whether an Northern District of California United States District Court 13 activity can be broadly declared "'ultrahazardous as a matter of law'"). See Venoco, Inc. v. Plains 14 Pipeline, L.P., No. 16-2988 PSG (JEMX), 2016 WL 10646303, at *10 (C.D. Cal. Sept. 26, 2016) 15 (collecting California cases, and concluding that the plaintiff's "economic harms are not the kind 16 of harm that would make transporting oil ultrahazardous"); Blue Water Boating Inc. v. Plains All 17 Am. Pipeline, L.P., No. CV163283PSGJEMX, 2017 WL 405425, at *4 (C.D. Cal. Jan. 26, 2017) 18 (rejecting that the court had to find, as a matter of law, that an activity was ultrahazardous, 19 deciding instead that the issue was "best resolved at summary judgment or a trial on the merits."). 20 In declining to find at the pleading stage that Defendants' use of PCE was ultrahazardous, the 21 Court earlier noted that "[g]iven the factual disputes in this case. . . it would be inappropriate to 22 dispose of plaintiffs' ultrahazardous claims without further factual development." See Estate of 23 Renzel v. Ventura, No. 5:15-CV-01648-RMW, 2015 WL 8527522, at *7 (N.D. Cal. Dec. 11, 24 3 25 Because the Court concludes that summary judgment would be inappropriate for these reasons, it does not need to decide the other issues presented by Torres in opposition to Renzel's motion. 26 Torres is incorrect, however, that the SAC does not include a claim for declaratory relief and/or a claim that Torres must "hold harmless and indemnify" Renzel. See, e.g., SAC ¶¶ 119, 133–139, 27 176–181; see also Torres Opp. at 7–9. In this regard, both parties request judicial notice of documents, some of which are already in the record in this case. See Dkt. Nos. 180, 188, 206. 28 The Court does not rely on these documents, and therefore DENIES AS MOOT the parties' requests. 10 1 1 2015).4 This aligns with the holdings of other California federal district courts that have relied on 2 factual findings to determine whether use of PCE is an ultrahazardous activity. See In re Burbank 3 Envtl. Litig., 42 F. Supp. 2d 976, 983 (C.D. Cal. 1998) ("After considering the six criteria 4 for ultrahazardous activity, the Court concludes plaintiffs have not stated sufficient facts to 5 establish the use of TCE, PCE and hexavalent chromium is an ultrahazardous activity."). Because 6 the parties continue to dispute facts regarding whether and how Torres handled PCE, thereby 7 potentially rendering that activity ultrahazardous, the Court finds that further factual development 8 is still required. See Renzel Opp. at 17–19; Torres Reply at 9–10. Summary judgment on 9 Renzel's strict liability claim is thus denied. 10 IV. CONCLUSION 11 For these reasons, the Court DENIES Renzel's motion for partial summary judgment and 12 DENIES Torres's motion for summary judgment. The Court SETS a case management Northern District of California United States District Court 13 conference for Tuesday, September 11, 2018 at 2:00 p.m. to discuss the remainder of the case schedule. The parties must submit a joint case management statement by Tuesday, September 4, 14 2018. 15 IT IS SO ORDERED. 16 Dated: 8/23/2018 17 ______________________________________ 18 HAYWOOD S. GILLIAM, JR. 19 United States District Judge 20 21 22 23 24 25 26 27 28 4 At the time that this order was issued, this case was assigned to the Honorable Ronald M. Whyte. 11