Judge tosses both summary adjudication motions in pollution case

After finding neither side answered relevantly his questions regarding the timeliness of the facts, Superior Court Judge David S. Cunningham III denied two cross-motions for summary adjudication to reduce the scope of a case involving a battery recycling facility accused of not properly warning San Gabriel Valley residents of exposure to lead and arsenic.

The plaintiffs -- Clean Air Coalition of North Whittier & Avocado Heights and Center for Environmental Health -- agreed with defendant Quemetco Inc. agreed to file the motions to address whether California's toxic substance labeling law is being violated and what the limitations on the time period of the emissions are.

The plaintiffs, represented by San Francisco based Mark N. Todzo of Lexington Law Group, asked the judge to enjoin Quemetco from exposing individuals in the area with a prayer for relief for $2,500 per each day of violation. Clean Air Coalition of North Whittier & Avocado Heights, et al. v. Quemetco Inc. et al., 19STCV02668 (L.A. Super. Ct., filed Jan. 30 2019)

Quemetco, represented by Adam Carlis and Alexandra White of Susman Godfrey LLP, and Craig A. Moyer of Manatt, Phelps & Phillips LLP, said in its motion for summary adjudication that Proposition 65, the labeling law, cannot apply retroactively. The defendants said reclusion prohibits aggregating data that predates a similar case. People of the State of California v. Quemetco Inc., BC080112. (L.A. Super. Ct., filed Apr. 30 1993).

Cunningham agreed, but stated that this motion did not "dispose of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. This issue is irrelevant to plaintiffs' claims arising from a different time period (2015 to the present), so defendants' argument fails."

The plaintiffs argue that Quemetco has caused emissions for years but Cunningham stated, "The statute simply lacks language limiting the timing of emissions." He also noted that Proposition 65 "makes no distinction regarding the timing of the conduct that causes exposures," thus failing to answer the question at issue.

At Wednesday's hearing, Cunningham took time to hear both parties once again after he went through his tentative ruling. The attorneys, most appearing remotely, retraced their arguments, but were unable to turn either of the denials around.

White, from Susman Godfrey's Boston office, was the only attorney present in court, and argued that the emissions occurred more than 60 years ago, before Proposition 65 was enacted.

Cunningham remarked this was irrelevant, as plaintiffs seek relief for exposure, not for the emissions themselves. "Besides, shouldn't the public have the right to know?" he asked.

Todzo, remotely, clarified this complaint is about exposure and not emissions, and that requires aggregated historical data which the defendant wanted thrown out. Cunningham said that regardless, the data presented "fails to show it's sufficiently contaminated to require a warning under Proposition 65."

Despite having his motion denied, Todzo said in a phone interview afterward, "We sought to answer just that one question: Is there a temporal limitation? And the answer is no."

When he got that answer in court he replied, "That is what we want, your honor. We do not seek summary judgment. We seek summary adjudication in order to not keep arguing the same points."

Cunningham said a further case management conference will take place May 2.