Facts

Plaintiffs Polly, Douglas, and Patrick McGilvray, trustees of various trusts, owned an 8-acre property located within a heavy industrial area in Sacramento, along Highway 16/Jackson Road. In 1979, the property was leased by defendant Cen-Vi-Ro, a pipe manufacturing plant on a neighboring property. One provision of the written lease agreement allowed Cen-Vi-Ro to grade the leased premises in the same manner the owned, adjacent property was graded, and to use their waste products as fill where necessary. Another provision gave the McGilvrays the option to require Cen-Vi-Ro to remove all buildings and materials from the leased premises and to leave the premises clear of all debris by notifying it in writing, 45 days prior to the date of termination.

Cen-Vi-Ro occupied the property until 1989, when the 10-year lease expired, then occupying on a month-to-month basis until November 1999, when it returned it to the McGilvrays. During the lease, Cen-Vi-Ro used the property for pipe and equipment storage, and also used its waste products to fill and grade the property as it did the adjacent manufacturing property. During the lease term, Cen-Vi-Ro was bought by another company, Hanson Concrete Products Inc., and related entities, which used the McGilvray property in the same manner for three years. Upon vacating the property, Hanson graded the property so that it was flat, the same level as the manufacturing plant property.

Subsequently, the property remained vacant, and was not leased or used for income-generating purposes. Between 1999 and 2003, the McGilvrays only visited the property on an irregular basis to evaluate its condition. In 2003, they hired an engineer to evaluate the property to determine its suitability for development. In 2004, the McGilvrays hired Joseph Tudesko to clear the grass from the property, who found waste debris spread across the property.

PLAINTIFFS' CONTENTIONS:
The McGilvrays contended that they had not known of the debris placement before Tudesko had discovered it, and filed suit against Hanson, alleging negligence, contribution under the California Hazardous Substance Control Account Act, and contribution. They further alleged equitable indemnity, express contractual indemnity, declaratory relief, breach of lease for failure to keep property in good repair, as well as waste, trespass, and breach of lease for failure to maintain insurance.

DEFENDANT'S CONTENTIONS:
Hanson contended that the claims were barred and that the McGilvrays had consented to the waste debris placement under the terms of the lease. Hanson further claimed that the McGilvrays should have known waste debris was placed on the property because they witnessed the action for many years and did nothing about it. Hanson also alleged that had the McGilvrays been reasonable and exercised due diligence, they would have discovered the debris when the keys to the property were handed in, in 1999. Hanson contended that the McGilvrays consented to the waste debris placement by failing to make a demand to clear the debris pursuant to the lease.

Damages

The McGilvrays sought $720,000 in clean up costs. Hanson estimated clean up costs worth of $414,000.

Result

The jury awarded the McGilvrays $463,872, reduced by $370,000 for their failure to make reasonable efforts to avoid the harm suffered.