Judge David S. Cunningham, Case BC544786 2023-02-07 Tentative Ruling

“Shell has incurred and continues to incur [costs] to investigate and remediate environmental contamination in the Carousel neighborhood tract in Carson California (the ‘Site’).” (Motion [in Limine], p. 1.) “The Regional Water Quality Control Board, Los Angeles Region (‘Water Board’) issued a Cleanup and Abatement Order (‘CAO’) determining that both Shell and Barclay are responsible for the contamination and directing them both to ‘assess, monitor, cleanup and abate’ it.” (Ibid.)

Shell claims, “[f]or years,” it “has been performing the major environmental remediation in the neighborhood” without Barclay’s help. Accordingly, Shell filed an action for “contribution and indemnity . . . for the cleanup costs, as well as declaratory relief.” (Ibid.)

“After a three-week trial, the jury returned a unanimous verdict allocating 50% of the cleanup costs to Barclay, resulting in an award in favor of Shell and against Barclay for $133,270,347.50.” (Opposition, p. 1.)

“A JNOV motion challenges the legal sufficiency of the opposing party’s evidence (‘a demurrer to the evidence’). I.e., it challenges whether that evidence was sufficient to prove the claims or defenses asserted by the opposing party and now embodied in the jury's verdict.” (Wegner, et al., Cal. Prac. Guide: Civ. Trials & Evid. (The Rutter Group 2022) ¶ 18:4, emphasis in original.)

“[T]he purpose of a JNOV is ‘to prevent the moving defendant from the necessity of undergoing any further exposure to legal liability when there is insufficient evidence for an adverse verdict.’” [Citation.] “The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. [Citations.] The trial judge cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] ‘A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.’” [Citations.]

Shell’s claims are barred by the 10-year statute of repose for construction defects in Code of Civil Procedure section 337.15. Under that statute, claims based on a defendant’s allegedly defective construction work—including indemnity claims—must be brought within 10 years after the construction project is completed. [Citation] This includes claims alleging environmental contamination — as the Court of Appeal has explained, section 337.15 governs claims based on an allegation that the defendant “contaminated the property due to a construction defect.” [Citation.] And here, Shell’s sole theory of liability at trial was that Barclay contaminated the property during construction — Shell repeatedly told the jury that Barclay was responsible for contamination because of grading and construction work it performed when building the Carousel housing tract. [Citation.] Because the Carousel project was indisputably completed more than 50 years ago, Shell’s claims are time-barred and Barclay is entitled to judgment.

Although the Court considered itself bound before trial to follow prior demurrer and summary adjudication rulings holding that section 337.15 does not apply, those interlocutory decisions do not govern here. [Citations.] And Shell’s prior position that its claims weren’t necessarily about Barclay’s construction work—and thus outside section 337.15 — cannot be reconciled with Shell’s arguments at trial. Although Shell relied on the Water Board’s 2015 Order against Barclay to prove its case, the Order merely alleged that Barclay caused contamination during construction — and repeating those allegations did not transform Shell’s case from one based on construction defects to one based on some other, post-construction conduct. [Citation.] Shell’s claims are time-barred.

(Motion, pp. 5-6, emphasis in original, footnote omitted; see also id. at pp. 7-11; Reply, pp. 6-10.)

The Court has already ruled multiple times that the latent construction defect statute of repose set forth in Code of Civil Procedure section 337.15 does not apply to Shell’s claims for equitable indemnity, contribution and declaratory relief as a matter of law. The Court granted Shell’s motion for judgment on the pleadings and dismissed Barclay’s affirmative defense on the statute of repose, consistent with numerous prior rulings on the issue. [Citation.] Shell’s claims arise out of Barclay’s role as a discharger of waste jointly and legally responsible to assess, monitor, cleanup and abate the contamination in the Carousel neighborhood — not out of a latent construction defect. [Citation.] Barclay’s motion does not even mention the Court’s judgment dismissing its affirmative defense and regurgitates all of the same arguments, citing all of the same inapposite case law, in another strained attempt to recast Shell’s environmental contribution action as a construction defect claim.

(Opposition, pp. 1-2; see also id. at pp. 3-9 [discussing, in part, San Diego Unified School District v. County of San Diego (2009) 170 Cal.App.4^th 288, Chevron U.S.A. Inc. v. Superior Court (1994) 44 Cal.App.4^th 1009, Liptak v. Diane Apartments, Inc. (1980) 109 Cal.App.3d 762, and Estuary Owners Association v. Shell Oil Co. (2017) 13 Cal.App.5^th 899].)

The Court agrees with Shell. This issue has been analyzed and decided several times:

On 8/12/14, Barclay filed a demurrer, arguing, in part, that Shell’s claims were time-barred under Code of Civil Procedure section 337.15’s 10-year statute of repose for latent construction defects.

Judge William Highberger found section 337.15 inapplicable and overruled the demurrer.

On 3/16/17, Barclay moved for summary judgment or adjudication on the statute of repose, again arguing that Shell’s equitable and contractual indemnity claims were time-barred as a matter of law.

Judge Highberger ruled that the statute of repose does not apply to the claims being asserted by Shell as a matter of law.

Judge Highberger also certified the issue for immediate appellate review by writ under Code of Civil Procedure section 166.1.

Barclay filed a petition for writ of mandate with the Court of Appeal challenging the denial of its motion for summary judgment, which was denied.

Barclay then filed a petition for review in the California Supreme Court, which also was denied.

On 5/27/22, this Court granted Shell’s motion in limine regarding collateral estoppel. The tentative ruling, which the Court adopted, states:

In conclusion, the Court agrees with Shell. Collateral estoppel applies: “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4^th 813, 825.) It is undisputed that Barclay “is a responsible party under” the CAO. (Notice of Motion, p. 1.) The issue of joint and several liability is identical and was finally adjudicated via the Water Board’s proceeding and the review process, including Judge Hogue’s bench trial and the Court of Appeal’s decision. As Shell argues, the CAO, Judge Hogue’s order, and the Court of Appeal’s opinion evince that joint and several liability was actually litigated and necessarily decided. (See Reply, pp. 11-12.) The fourth element is easily met. “Barclay . . . was the party to the Water Board proceedings; Barclay pursued the subsequent appeals; and Barclay is the Defendant here.” (Id. at p. 13.) Thus, the motion in limine is granted.

On 5/31/22, the Court signed a formal order granting Shell’s motion in limine. The order states:

After full consideration of the moving, opposition, and reply papers, the arguments of counsel, and all other matters presented to the Court, the Court finds that Barclay is collaterally estopped from contesting at trial that it is a responsible party under Cleanup and Abatement Order No. R4-2011-0046 (revised April 30, 2015) (“CAO”) issued by the State of California Regional Water Quality Control Board, Los Angeles Region (“Water Board”), and is jointly and severally liable for the costs incurred to assess, monitor, and cleanup and abate the effects of petroleum hydrocarbon compounds and other contaminants of concern discharged to soil and groundwater at the former Kast Property Tank Farm facility (now referred to as the Carousel neighborhood tract) in Carson, California (the “Site”). Collateral estoppel, also known as issue preclusion, precludes Barclay from relitigating the already-decided issues of its liability for the contamination at the Site and its responsibility for costs to remediate it pursuant to the CAO, subject to allocation for costs and amounts among the joint tortfeasors.

Accordingly, the Court GRANTS Shell’s Motion in Limine re Collateral Estoppel in its entirety.

(5/31/22 Order Granting Plaintiff Shell Oil Company’s Notice of Motion and Motion in Limine, p. 1, bolding in original.)

On 6/27/22, the Court heard Barclay’s second motion for summary judgment/adjudication. The second motion was identical to the first motion. The premise was that Shell’s causes of action for contribution, equitable indemnity, and declaratory relief are time-barred under Code of Civil Procedure section 337.15. The Court ended up continuing the hearing to allow Shell to file a signed copy of Judge Highberger’s 2017 order on the first motion.

On 7/7/22, the Court denied Barclays’s second motion. The Court denied the second motion under Code of Civil Procedure section 437c(f)(2) because it was identical to the first motion, which Judge Highberger denied. The Court’s tentative ruling states:

On balance, the Court agrees with Shell. While it is true that Judge Highberger’s 2018 tentative ruling on the cross-motions for judgment on the pleadings addresses the statute of repose, the final order is different. Not only does it not address the statute of repose, it also fails to rule on Shell’s motion, which was the motion that raised the section 337.15 issue. The transcript of the 2018 hearing is especially illuminating. Judge Highberger rejected Barclay’s counsel’s request for him to rule on Shell’s motion or to allow further briefing regarding section 337.15 and, instead, found Shell’s motion moot and took it off calendar. (See Miller Decl., Ex. 67, pp. 3-9.) Barclay’s counsel specifically asked for an opportunity to file a new motion for summary judgment concerning the statute of repose, but Judge Highberger said no. (See id. at Ex. 67, pp. 7-8.) To rely on the dicta in Judge Highberger’s tentative ruling as authority to consider the merits of Barclay’s new, identical motion for summary judgment/adjudication here would elevate the tentative ruling above the final order in contravention of Judge Highberger’s apparent intention. Accordingly, the Court finds that the motion should be denied under section 437c(f)(2).

Barclay’s argument – the dismissal of Shell’s contract claims is a “changed circumstance” authorizing the new motion – is unavailing. (Reply, pp. 9-10.) The “changed circumstance” rationale comes straight from Judge Highberger’s 2018 tentative ruling, which carries no legal weight since it is materially different than the final order. To reiterate, this is an attempt by Barclay to get the Court to elevate the tentative ruling above the final order.

Even if it were appropriate to consider the merits of Barclay’s new motion, the Court would be inclined to deny it. The Court agrees with Shell’s extensive discussion of San Diego Unified School District v. City of San Diego (2009) 170 Cal.App.4^th 288 (“San Diego Unified”). Shell persuasively argues that the statute of repose does not apply to Shell’s causes of action for contribution, equitable indemnity, and declaratory relief “because they are not construction defect claims.” (Opposition, p. 12; see also id. at pp. 13-14.)

(7/7/22 Tentative Ruling Re: Continued Hearing Re: Summary Judgment/Adjudication, pp. 6-7.)

On 7/7/22, the Court additionally signed a formal order denying the second motion. It states:

Barclay’s Motion is DENIED. Based upon the record presented, Barclay has failed to demonstrate that it is entitled to summary judgment or summary adjudication. As a matter of law, the ten-year statute of repose, codified at Code of Civil Procedure section 337.15, does not apply to Plaintiff Shell Oil Company’s (“Shell”) claims for equitable indemnity, contribution, and declaratory relief set forth in Shell’s Amended Complaint. Shell’s claims arise from Barclay’s joint and several liability “to assess, monitor, cleanup and abate the effects of petroleum hydrocarbon compounds and other contaminants of concern discharged to soil and groundwater” at the Carousel neighborhood under Cleanup and Abatement Order No. R4-2011- 0046 issued by the California Regional Water Quality Control Board Los Angeles Region (“Water Board”) on April 30, 2015 (“CAO”), and they are not based on construction defects for the purposes of section 337.15.

(7/7/22 Order Denying Barclay’s Motion for Summary Judgment/Adjudication on Statute of Repose, p. 1, emphasis added.)

Clearly, the Court included the bolded language because Judge Highberger had previously ruled against Barclay as a matter of law and had not been reconsidered or reversed.

On 9/7/22, the Court denied Barclay’s motion in limine no. 9, which sought permission to pursue the statute of repose affirmative defense at trial. The Court reiterated that the statute of repose had already been resolved as a matter of law:

Barclay twice moved for summary judgment/adjudication based on the “statute of repose” affirmative defense and lost both motions. In fact, this Court’s 7/7/22 order states:

(10/11/22 Order Re: Motion for Judgment on the Pleadings, pp. 3-6, emphasis in original.) In light of these rulings and the 10/11/22 order granting Shell’s motion for judgment on the pleadings and dismissing Barclay’s second affirmative defense, the “statute of repose” issue “has been resolved as a matter of law and was not left open for trial.” (Opposition, p. 4)

Further, the Court agrees with Shell that Barclay’s evidence and authorities do not change the result. (See id. at pp. 5-9.) The legal analysis remains the same. Section 337.15 is inapplicable as a matter of law.

Shell’s claims are also barred by [Code of Civil Procedure] section 339(1)’s two-year statute of limitations for non-contractual indemnity and contribution claims. As the Court of Appeal explained in Shell’s previous appeal in this case, Shell could bring its claims against Barclay as soon as Shell began “paying for the cost of environmental cleanup of the property” [citation] — meaning that the two-year limitations period began running as soon as Shell started working at the Kast site. [Citation.] And the undisputed testimony — from Shell’s own witnesses — established that “Shell’s remediation at the former Kast property” began in “2008.” [Citation.] So Shell’s claims accrued in 2008, and were barred two years later in 2010.

Shell’s 2014 complaint is therefore too late, and Barclay is thus entitled to judgment. Although Shell and Barclay executed a tolling agreement in 2011, that agreement could not revive claims that were already barred. And although Shell assiduously avoided claiming costs it incurred in 2008 or 2009 as damages in this trial, Shell could not dodge the statute of limitations by manipulating its damages claims. “[I]f the statute of limitations bars an action based upon harm immediately caused by defendant’s wrongdoing” (e.g., costs incurred in 2008), the plaintiff cannot evade the statute by bringing “a separate cause of action based on a subsequent harm arising from that wrongdoing” (e.g., costs incurred in 2010 or later). [Citation.] Regardless of what costs Shell chose to claim as damages, its claims accrued in 2008 — and expired in 2010.

(Motion, pp. 6-7, emphasis in original; see also id. at pp. 11-13; Reply, pp. 10-14.)

Barclay argues that the two-year statute of limitations under Code of Civil Procedure section 339(1) bars Shell’s claims. But Barclay chose not to raise this potential defense at trial and therefore has waived and forfeited it. Moreover, even if Barclay had raised the issue, it fails to establish the statute of limitations applies. Rather, the evidence demonstrates — and the law of the case set forth by the Court of Appeal dictates — that Shell timely filed this action. Neither the statute of repose nor the statute of repose apply here, and Barclay’s motion should be denied.

The Court agrees with Shell. Barclay filed its answer more than eight years ago in 2014. Section 339 is alleged as a defense in the answer, but Barclay never raised it until now and, thus, “abandoned” it “by failing to raise” it “at trial.” (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5^th 982, 997 (“Nellie Gail”.) In other words, Barclay waived or forfeited the defense.

Barclay claims Nellie Gail is distinguishable since “the defendant’s answer alleged only ‘boilerplate defenses.’” (Reply, p. 11 [arguing that Barclay’s answer “raise[s] section 339 by name”].)

The key rationale of Nellie Gail is not that the defenses were alleged in boilerplate fashion; it is that the defendants failed to assert them during trial:

The McMullins contend the trial court erred in quieting title to the Disputed Property in Nellie Gail because two of their defenses defeated Nellie Gail’s quiet title claim as a matter of law. First, the McMullins contend equitable estoppel barred Nellie Gail’s claim. Second, they contend section 318’s five-year limitations period bars Nellie Gail’s claim. The McMullins forfeited these defenses by failing to assert them at trial.

In their answer, the McMullins alleged boilerplate defenses based on equitable estoppel and the statute of limitations. Similarly, in the joint list of controverted issues the parties filed on the eve of trial, the McMullins identified these defenses as two of their 19 controverted issues for trial. The McMullins, however, thereafter abandoned those defenses by failing to raise either of them at trial.

The trial brief the McMullins filed neither argued these defenses nor identified them as issues for the trial court to decide. In his opening statement, the McMullins’ trial counsel stated he would present evidence to show the McMullins were entitled to maintain the retaining wall and other improvements on the Disputed Property based on three theories — adverse possession, prescriptive easement, and equitable easement. Counsel failed to mention equitable estoppel or the statute of limitations as a basis for the court to deny Nellie Gail’s quiet title claim. Similarly, in his closing argument, counsel argued the court should quiet title in the McMullins or grant them an exclusive easement over the Disputed Property based on adverse possession, prescriptive easement, or equitable easement. At no time during trial did the McMullins assert that Nellie Gail was equitably estopped to bring a quiet title claim or that the statute of limitations barred Nellie Gail’s claim.

The McMullins fail to cite anywhere in the trial record where they mentioned the statute of limitations, and they cite just one page of the reporter’s transcript where their counsel uttered the words “equitable estoppel” during closing argument. This isolated utterance, however, is not sufficient to preserve the issue for appeal because the McMullins’ counsel did not utter those words while arguing Nellie Gail was equitably estopped to assert a quiet title claim. Indeed, it appears the McMullins’ counsel may have misspoke by mentioning equitable estoppel because he uttered that phrase when urging the trial court to grant an equitable easement, which, as explained below, is a separate doctrine that allows a landowner who constructed an improvement on an adjacent owner’s property to defeat that owner's injunction request based on a balancing of the hardships or conveniences. [Citation.]

The same is true here. Barclay cites zero evidence showing that it raised section 339 at trial. (See Reply, pp. 5, 10-11; cf. Opposition, pp. 9-11 [noting that (1) “Barclay did not propose any jury instruction regarding the limitations period under Section 339 and did not object at any time that such instruction should be given[,]” (2) “Barclay also did not ask the jury to consider the statute of limitations in its proposed special verdict form[,]” (3) “[t]he final special verdict form agreed upon by the parties did not address any affirmative defense or require any finding pertaining to the statute of limitations[,] (4) “[n]or did Barclay argue the statute of limitations to the jury or to the Court[,]” (5) “Barclay submitted a detailed trial brief summarizing the defenses it intended to pursue at trial and filed ten motions in limine, none of which raised a potential defense based on the statute of limitations[,]” and (6) “Barclay does not cite to any jury instruction or argument of counsel on the statute of limitations”].)

“Shell has incurred and continues to incur [costs] to investigate and remediate environmental contamination in the Carousel neighborhood tract in Carson, California (the ‘Site’).” [Citation.] “The Regional Water Quality Control Board, Los Angeles Region (‘Water Board’) issued a Cleanup and Abatement Order (‘CAO’) determining that both Shell and Barclay are responsible for the contamination and directing them both to ‘assess, monitor, cleanup and abate’ it.” [Citation.]

The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated.

A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.

On 5/27/22, the Court heard Shell’s motion in limine regarding collateral estoppel. Shell claimed Barclay should be “collaterally estopped from contesting at trial that” (1) “‘it is a responsible party under’ the CAO [citation,]” and (2) “it ‘is jointly and severally liable for all costs incurred to assess, monitor, cleanup and abate the effects of petroleum hydrocarbon compounds and other contaminants of concern discharged to soil and groundwater at’ the Site. [Citation.]” (5/27/22 Tentative Ruling Re: Motion in Limine, p. 1.) The Court granted the motion, reasoning:

Collateral estoppel applies: “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” [Citation.] It is undisputed that Barclay “is a responsible party under” the CAO. [Citation.] The issue of joint and several liability is identical and was finally adjudicated via the Water Board’s proceeding and the review process, including Judge Hogue’s bench trial and the Court of Appeal’s decision. As Shell argues, the CAO, Judge Hogue’s order, and the Court of Appeal’s opinion evince that joint and several liability was actually litigated and necessarily decided. [Citation.] The fourth element is easily met. “Barclay . . . was the party to the Water Board proceedings; Barclay pursued the subsequent appeals; and Barclay is the Defendant here.” [Citation.]

(Id. at p. 4; see also 5/27/22 Minute Order, p. 1 [adopting the tentative ruling and granting the motion in limine].)

[T]he Court should not have given collateral estoppel effect to the Water Board’s 2015 Order or the writ decisions upholding that Order. It is well settled that “collateral estoppel does not apply where the two proceedings at issue have different burdens of proof or where the burden of proof falls on a different party in each proceeding.” [Citation.] That is true here. In this case, Shell bore the burden of proving Barclay’s fault by a preponderance of the evidence. But the Water Board did not hold itself to any burden of proof when finding that Barclay had contributed to contamination at the Carousel site — in fact, the burden of proof was on Barclay to prove that it had not violated the law. [Citation.] And the burden was even more skewed in the writ proceedings — where Barclay was charged with the burden of overcoming the “‘strong presumption of correctness’” that attached to the Water Board’s Order. [Citation.] By allowing Shell to tell the jury that the Water Board and writ decisions had already established that Barclay was responsible for contamination, the Court effectively relieved Shell of its burden to prove Barclay’s fault. For this reason alone, a new trial is warranted.

(Motion, p. 5, emphasis in original, footnote omitted; see also id. at pp. 7-9; Reply, p. 5 [“[T]he Water Board’s Order and the two writ decisions upholding that Order cannot have collateral-estoppel effect unless Barclay bore the same burden of proof in each of those proceedings as it did in this case. As the defendant in this case, Barclay bore no burden at all. But before the Water Board, Barclay had the burden of disproving its fault under the administrative safe-harbor defense. And in the writ proceedings, Judge [Amy] Hogue applied a “strong presumption of correctness” to the administrative findings and deferred to the agency’s credibility determinations. No such “presumption of correctness” applies in civil litigation — much less a presumption in the plaintiff’s favor. Finally, Shell does not dispute that the Court of Appeal conducted “substantial evidence” review, which asked whether any evidence (not a preponderance) supported the trial court’s order. That highly deferential standard makes collateral estoppel plainly inappropriate for the Court of Appeal’s opinion.”], emphasis in original; id. at pp. 6-9.)

Barclay first argues that collateral estoppel should not have applied because the prior proceedings involved different burdens of proof on different parties. This argument has already been rejected multiple times. It ignores the well-settled legal test for applying collateral estoppel to agency proceedings, which requires that the proceedings be judicial in nature and afford due process. The Superior Court and Court of Appeal each held that the Water Board proceedings satisfied these requirements. In addition, Judge Hogue held a bench trial and decided facts, based on the Court’s independent judgment, supporting Barclay’s joint and several liability. The Court of Appeal “independently reviewed the record” and affirmed these findings. Barclay’s reliance on People v. Esmaili (2013) 213 Cal.App.4th 1449, a criminal sexual abuse case, is misplaced, as Esmaili involved proceedings with different issues applying different analyses. This case involves identical issues that were adjudicated in the prior proceedings.

Barclay did not raise the purported different burdens of proof in opposition to the motion in limine or before or during trial.

Regardless, the Court agrees with Shell. “The doctrine of collateral estoppel bars the relitigating of issues which were previously resolved in an administrative hearing by an agency acting in a judicial capacity.” (Risam v. County of Los Angeles (2002) 99 Cal.App.4^th 412, 419.) As the 5/27/22 order details, the Water Board proceeding “satisfied due process” and “had sufficient indicia of a judicial character to apply collateral estoppel[.]” (5/27/22 Tentative Ruling Re: Motion in Limine, p. 2 [discussing Judge Hogue’s and the Court of Appeal’s findings that “the Water Board proceeding comported with due process”].) The identical issue of joint and several liability “was actually litigated and finally decided[,]” and Judge Hogue and the Court of Appeal upheld the decision. (Id. at p. 4.) These factors remain true today; the Water Board, Judge Hogue, and the Cout of Appeal resolved joint and several liability against Barclay, and collateral estoppel applies to their rulings.

Barclay contends “[t]he Water Board never made findings against Barclay based on a preponderance of the evidence.” (Motion, p. 8 [asserting that, “[i]n fact, the Board did not purport to hold itself to any particular burden of proof at all”].)

The Court disagrees. The CAO states, for example, that “[s]ubstantial evidence indicates that the Discharger” – which includes Barclay – caused or permitted waste to be discharged into waters of state and is therefore appropriately named as a responsible party in this Order.” (Miller Decl., Exh. 1, p. 10, emphasis added.) The Water Board adopted the CAO “based on the weight of [the] evidence” “in the [proceeding’s] administrative record[.]” (Id. at Exh. 7, p. 2, emphasis added.) At minimum, the Water Board used a standard akin to the preponderance standard.

Barclay asserts that the Water Board “placed the burden on Barclay to disprove its fault by proving its conduct was lawful.” (Motion, p. 8, emphasis in original.)

The Court disagrees. Instead of citing the CAO, Barclay cites pages 81 and 82 of the Court of Appeal’s opinion as support. (See Motion, p. 8; see also Reply, p. 6.) Pages 81 and 82 concern Barclay’s attempt on appeal to rely on Water Code section 13304’s safe harbor provision, an exception to liability for pre-1981 acts that “were not in violation of existing laws or regulations at the time they occurred.” (Miller Decl., Exh. 3, p. 81.) The Court of Appeal determined that “the burden was . . . on Barclay” to establish that it qualified for the safe harbor provision given the “‘“longstanding” principle’ that when a statute carves out an exception to its application, the burden of proving application of the exception is on the party seeking its protection[.]” (Id. at Exh. 3, pp. 81-82.) These circumstances demonstrate the opposite of the Water Board placing an improper burden on Barclay.

Barclay claims Judge Hogue “applied a ‘strong presumption of correctness’ to the Water Board – and placed the burden on Barclay to prove that the Order was wrong[.]” (Motion, p. 8, emphasis in original.)

The Court disagrees. “[U]nder the independent judgment standard, ‘the trial court begins its review with a presumption that the administrative findings are correct, [but] it does not defer to the fact finder below and accepts its findings whenever substantial evidence supports them.’” (Coastal Environmental Rights Foundation v. California Regional Water Quality Control Bd. (2017) 12 Cal.App.5^th 178, 188.) The trial court “must weigh all evidence for itself and make its own decision about which party’s position is supported by a preponderance.” (Ibid., emphasis added.) Ultimately, “the trial court determines whether [the] administrative findings are supported by the weight of the evidence[.]” (Id. at 187, emphasis added.) Judge Hogue applied the independent judgment standard, exercised her independent judgment, and made findings based on the weight of the evidence in the record. (See Miller Decl., Exh. 2, pp. 6, 10-16.)

Moreover, to repeat, the fact that Barclay had the burden to establish the safe harbor exception is not a basis for finding collateral estoppel inapplicable. (See, e.g., id. at Exh. 2, pp. 15-16 [analyzing Barclay’s reliance on the safe harbor provision].)

Barclay claims “[t]he burden on Barclay was still higher before the Court of Appeal, which reviewed Judge Hogue’s findings for ‘substantial evidence.’” (Motion, p. 8.)

The claim is overstated. “When . . . the trial court is required to review an administrative decision under the independent judgment standard of review, the standard of review on appeal . . . is the substantial evidence standard. [Citations.]” (Fukuda v. City of Angels (1999) 20 Cal.4^th 805, 824.) The appellate reviews the trial court’s “factual determinations under the substantial evidence standard and its legal determinations under the de novo standard” and is “not bound by the legal determinations made by the state or regional agencies or by the trial court. [Citation.]” (Coastal Environmental Rights Foundation, supra, 12 Cal.App.5^th at 190.) According to the Court of Appeal’s opinion: (1) the Water Board found Barclay “jointly and severally responsible with real party in interest Shell . . . for the cleanup and abatement or petroleum hydrocarbon compounds and other contaminants (the petroleum residue or waste) at” the Site; and (2) the Court of Appeal “affirm[ed] the trial court’s order and judgment upholding the Water Board’s determination.” (Miller Decl., Exh. 3, p. 2.) Since joint and several liability is a legal determination, as is, for instance, discharger status and nuisance and environmental law violations, the Court of Appeal applied de novo review in relevant part. (See 5/27/22 Tentative Ruling Re: Motion in Limine, pp. 2-4 [analyzing the CAO, Judge Hogue’s ruling, and the Court of Appeal’s opinion with respect to joint a several liability]; see also Opposition, p. 6 [Shell pointing out that the Court of Appeal reviewed Barclay’s affirmative defense de novo and made legal determinations that Barclay violated environmental laws].)

Barclay cites Esmaili, arguing that “collateral estoppel does not apply where the two proceedings at issue have different burdens of proof or where the burden of proof falls on a different party in each proceeding.” (Motion, p. 5.)

Esmali is distinguishable. There, appellant “was charged with continuous sexual abuse of a child[.]” (Esmali, supra, 213 Cal.App.4^th at 1453.) “A preliminary hearing was held at which the magistrate, citing inconsistencies in the victim's testimony, found the evidence insufficient to bind appellant over for trial and dismissed the complaint.” (Ibid.) “Appellant petitioned the court for a determination of factual innocence[.]” (Ibid.) “After the court denied the petition, appellant filed an unsuccessful motion for reconsideration, arguing that principles of collateral estoppel required the court to find him factually innocent.” (Ibid.) The Court of Appeal affirmed the denials because (1) “the issue of factual innocence was not an issue actually litigated or necessarily decided during the preliminary hearing” (“no finding of factual innocence was made” at the preliminary hearing), (2) “res judicata [and] collateral estoppel are inapplicable to orders dismissing criminal proceedings following preliminary hearings[,]” (3) “the prosecution bore the burden of proof at the preliminary hearing while appellant had the initial burden in his motion[,]” and (4) “[t]o conclude that a finding of no probable cause [at the preliminary hearing] equated to a finding of factual innocence would contradict the court’s assessment of the evidence and give relief to a defendant who had not, in fact, established his entitlement to such.” (Id. at 1462-1463.) Here, identical issues – joint and several liability, discharger status, nuisance, etc. – were actually adjudicated and necessarily decided using equivalent burdens of proof in prior administrative and civil proceedings.

In reply, Barclay tries to analogize Bennett v. Rancho California Water District (2019) 35 Cal.App.5^th 908. (See Reply, pp. 6-7.)

Because Bennett is cited for the first time in reply, Shell should receive an opportunity to respond.

Nevertheless, Bennett appears distinguishable. Bennett sued the District for whistleblower retaliation. “At the jury trial, the trial court excluded evidence showing Bennett's relationship with the District was anything other than an employment relationship.” (Bennett, supra, 35 Cal.App.5^th at 911.) “Citing an administrative law judge’s prior finding Bennett had been the District’s employee for purposes of retirement benefits eligibility through” CalPERS, “the trial court concluded the doctrine of collateral estoppel applied and established Bennett had been the District's employee.” (Ibid.) The Court of Appeal reversed because the whistleblower statute required Bennett to “prove employment status” whereas “the administrative law judge expressly assigned to the District the burden of proving Bennett had been its independent contractor and thereby entirely relieved Bennett of the burden of proof on that issue[.]” (Ibid., emphasis in original.) In other words, “the burden applied by the administrative law judge and Bennett’s burden with regard to employment status in proving” the whistleblower claim “were not identical for purposes of collateral estoppel applicability.” (Id. at 922.) The Court reiterates that, here, the prior proceedings finally adjudicated identical issues and utilized equivalent burdens of proof.

[E]ven if the Water Board’s Order could be entitled to preclusive effect, it was error to give preclusive effect to commentary and dicta in the writ opinions. Collateral estoppel is limited to issues that were “‘actually litigated and necessarily decided in the first suit.’” [Citation.] But the writ proceedings decided only whether (1) the Water Board issued its Order with proper “jurisdiction,” (2) there was “a fair trial,” and (3) there was a “prejudicial abuse of discretion.” [Citation.] The writ courts were not charged with deciding what actually occurred at the Carousel development or whether Barclay was actually responsible for contamination. Yet many of the “established core facts,” which purported to describe Barclay’s fault for the contamination, were based entirely on dicta from the writ opinions — including the Court of Appeal’s statement that Barclay was “jointly and severally liable for remediation costs.” [Citation.] These statements from the writ proceedings were not entitled to preclusive effect — and their erroneous admission should be remedied by a new trial.

(Motion, p. 5, emphasis in original; see also id. at pp. 9-11; Reply, pp. 5, 9-10.)

Barclay argues that it was improper to give preclusive effect to certain adjudications because they were not “actually litigated” or “necessarily decided,” including the Court of Appeal’s holding that Barclay is joint and severally responsible for the cleanup at the site. These arguments misstate the record, which shows that the issues in the core facts were raised by Barclay and fully adjudicated in the prior proceedings. Contrary to Barclay’s assertions, the rulings of the Superior Court and Court of Appeal were not dicta. This Court considered extensive briefing and oral argument and evaluated each core fact to ensure it had proper support and was actually litigated and necessarily decided in the prior proceedings.

The gravamen of Barclay’s argument is that “Barclay did not actually litigate, and the writ proceedings did not necessarily resolve, whether Barclay had ‘joint and several liability,’ what actually happened at the Carousel site, or whether any contamination was caused by Barclay’s construction activities.” (Motion, pp. 9-10.) Barclay highlights Facts 27, 34, and 36 to prove its point:

Shell and Barclay are “jointly and severally liable for all costs incurred to assess, monitor, and clean up and abate the effects of petroleum hydrocarbon compounds and other contaminants of concern discharged to soil and groundwater” at the Carousel neighborhood. [Citations.]

There is substantial evidence that Barclay, through its agents, was aware of the presence on the Site of petroleum residue and its odors, and waste, and that Barclay took multiple affirmative steps over more than eight months to break up and bury the cement floors of the three reservoirs located on the Site, followed by grading the Site utilizing soil from the several berms surrounding the reservoirs as well as the perimeter berms on the property, together with soil brought to the Site from elsewhere. Barclay did this with knowledge of the more than 40-year history of the use of the Site as a petroleum tank farm as well as with data Shell had supplied to it and from its own inspection of the Site. That Barclay’s conduct constituted ‘active involvement’ in this work is conclusively established by the evidence. Thus, it was actively engaged with knowledge of the condition of the property in the ‘discharges’ of petroleum residue and waste into the soil on the Site, resulting in pollution and creation of a nuisance. [Citations.]

Barclay’s conduct with respect to the contamination or potential contamination was active rather than not passive: Barclay moved and compacted soil, broke up and buried cement from the storage reservoirs to prepare the site to develop single family homes. [Citations.]

Barclay’s complaint about Fact 27 amounts to a rehash of the arguments made in opposition to Shell’s collateral estoppel motion in limine. The Court incorporates the 5/27/22 ruling and denies the motion for new trial as to Fact 27 because:

* The CAO cites to Water Code section 13304(a), which is based on common law nuisance and imposes joint and several liability for abatement. (See Miller Decl., Exh. 1, p. 1 n.1; see also City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4^th 28, 37; San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Bd. (2019) 36 Cal.App.5^th 427, 436-437.)

* The CAO orders the “Discharger” – Shell and Barclay collectively – to clean and abate the contamination and comply with several requirements. It requires the requirements to be completed “by the ‘Discharger’ without differentiating between Shell and Barclay and without separating or divvying up the tasks.” (5/27/22 Tentative Ruling Re: Motion in Limine, p. 3; see also Miller Decl., Exh. 1, pp. 1-2, 12-18.)

* Judge Hogue affirmed the CAO. She used her independent judgment and “held that ‘the weight of the evidence’ justified the Water Board’s naming of Barclay[.]” (5/27/22 Tentative Ruling Re: Motion in Limine, p. 3; see also Miller Decl., Exh. 2, p. 15.) She found that “Barclay ‘contributed to the migration of the waste through soil and groundwater’” and that “Barclay must share some responsibility for the cleanup[.]” (Miller Decl. Exh. 2, p. 15.) She also agreed with the Water Board that Barclay committed a nuisance. (See id. at Exh. 2, p. 16.)

* The Court of Appeal affirmed Judge Hogue, stating that (1) “the Water Board determined that ‘Barclay is jointly and severally responsible with real party in interest Shell . . . for the cleanup and abatement of petroleum hydrocarbon compounds and other contaminants (the petroleum residue or waste[)] at’ the Site[,]” and (2) “the Court of Appeal is ‘affirm[ing] the trial court’s order and judgment upholding the Water Board’s determination.’” (5/27/22 Tentative Ruling Re: Motion in Limine, p. 3; see also Miller Decl., Exh. 3, p. 2.) The opinion notes that Barclay recognized that adding Barclay to the CAO as a responsible party “results in it being jointly and severally liable for remediation costs at the Site[.]” (Miller Decl., Exh. 3, p. 54; see also Opposition, pp. 7-8 [citing evidence].)

* The Water Board found that Barclay “is a responsible party” – a “Discharger” – “due to its [1] past ownership and/or as a successor to past owners of the Site, and [2] development of the property resulting in discharges of waste at the Site.” (Miller Decl., Exh. 1, p. 2, § 1; see also, e.g., id. at Exh. 1, pp. 3-4, 8-11 §§ 5-6, 10-11, 13 [listing grading and contamination activities attributable to Barclay].)

* Barclay’s knowledge of contamination and its grading and discharge activities were raised and argued by Barclay in the writ proceeding and on appeal. (See Opposition, p. 8 [citing Barclay’s writ petition and appellate briefs].)

* Consistent with the Water Board’s findings, Judge Hogue held: “Barclay's conduct was neither passive nor unknowing” (id. at Exh. 2, p. 11); “Barclay purchased the property from Shell knowing Shell had used it for petroleum storage as evidenced by its request for permission to enter the property to remove petroleum waste and residues even before the sale was effectuated” (ibid.); “Barclay was fully aware of the contamination or potential contamination at the site” (ibid.); “Barclay's conduct with respect to the contamination or potential contamination was active rather than not passive” (ibid.); “Barclay moved and compacted soil, broke up and buried cement from the storage reservoirs to prepare the site to develop single family homes” (ibid.); and “the weight of the evidence supports the Regional Board's finding that Barclay ‘contributed to the migration of the waste through soil and groundwater.’” (Id. at Exh. 2, p. 15; see also id. at Exh. 2, pp. 12-16 [citing evidence].)

* The Court of Appeal “independently reviewed the record” and held that “Barclay’s factual contentions are without merit as there is substantial evidence to support the findings of its affirmative acts in spreading and burying the petroleum residue and waste, and thus to support the judgment below.” (Id. at Exh. 3, p. 75.) For instance, the Court of Appeal found: “Barclay was aware in the fall of 1965 of the presence of ‘liquid waste and petroleum residues’ at the Site” (id. at Exh. 3, p. 70); Barclay “was fully aware of the presence of petroleum residue and waste at the Site and that it was actively engaged through its agents in breaking up and burying the concrete and soil that contained the petroleum residue and waste” (id. at Exh. 3, p. 75); “there is substantial evidence that Barclay, through its agents, was aware of the presence on the Site of petroleum residue and its odors, and waste, and that Barclay took multiple affirmative steps over more than eight months to break up and bury the cement floors of the three reservoirs located on the Site, followed by grading the Site utilizing soil from the several berms surrounding the reservoirs as well as the perimeter berms on the property, together with soil brought to the Site from elsewhere” (id. at Exh. 3, p. 78); “Barclay did this with knowledge of the more than 40-year history of the use of the Site as a petroleum tank farm as well as with data Shell had supplied to it and from its own inspection of the Site” (ibid.); “Barclay’s conduct constituted “active involvement” in this work (ibid.); Barclay “was actively engaged with knowledge of the condition of the property in the ‘discharges’ of petroleum residue and waste into the soil on the Site, resulting in pollution and creation of a nuisance (id. at Exh. 3, pp. 78-79); “Barclay did act unreasonably in burying the petroleum residue and in doing so violated Health and Safety Code section 5411” (id. at Exh. 3, p. 86); and “Barclay's conduct did clearly constitute the ‘discharge of sewage or other waste, or the effluent of treated sewage or other waste, in a[] manner which [resulted] in contamination, pollution or nuisance.’” (Id. at Exh. 3, p. 87.)

Additionally, the Court agrees with Shell that Barclay fails to show a miscarriage of justice. (See Opposition, pp. 9-10.)

[T]he Court erroneously excluded Barclay’s lead expert on apportionment of fault, Dr. Jeffrey Dagdigian, based on its view that his testimony was barred by the Court of Appeal opinion in the writ proceedings. But the Court of Appeal was not charged with evaluating the admissibility of Dr. Dagdigian’s testimony in a civil trial; it decided only whether the Water Board committed an “abuse of discretion” by declining to follow Dr. Dagdigian’s opinion that Barclay had no fault. [Citation.] Dr. Dagdigian’s opinions should not have been excluded based on dicta from the Court of Appeal. It was prejudicial error to exclude his key expert testimony—and thereby deprive Barclay of its ability to explain to the jury why Shell bears the entirety, or at least the bulk, of the fault in this case. [Citation.]

(Motion, p. 6, emphasis in original; see also id. at pp. 12-14; Reply, p. 5 [“[E]ven if collateral estoppel could support all of the ‘core facts’ instructions, Dr. Dagdigian should not have been prevented from offering his opinions. As Shell sees it, the Water Board already ruled that all of Dr. Dagdigian’s opinions are inadmissible. But the Water Board gave its views only on the strength (not the admissibility) of the expert evidence, and Dr. Dagdigian updated his opinions to focus on apportionment — a topic that was not at issue in the Water Board proceedings.”]; id. at pp. 10-12.)

Barclay argues that the Court should have admitted the testimony of its expert Dr. Dagdigian, whose opinions were rejected as unreliable. Again, the Court considered lengthy briefing and argument before properly excluding Barclay’s expert. Dr. Dagdigian testified in the Evidence Code section 402 hearings that he was proffering the same opinions that were rejected in the prior proceedings, and he intended to offer testimony contradicting the CAO. Although Dr. Dagdigian may have changed the name of his theories (e.g., “upward migration” to “wicking”), that does not cure their unreliable methodologies and scientifically flawed conclusions.

Dr. Dagdigian’s reports and opinions were the subject of a motion in limine. Prior to deciding the motion, the Court held a section 402 hearing with live testimony. The attorneys and the Court questioned him, and the Court allowed oral arguments after he finished testifying. The decision to exclude him was not made lightly; it was the product of a thorough process and extensive analysis.

Barclay’s position here appears to center on the allegedly non-preclusive effect of the CAO, the Water Board staff’s findings, Judge Hogue’s bench trial, and the Court of Appeal’s decision. Barclay claims it was erroneous to apply collateral estoppel to Dr. Dagdigian. (See, e.g., Motion, p. 12.)

Collateral estoppel was only one part of the Court’s exclusion decision. The Court further found Dr. Dagdigian’s opinions “unreliable and based on unsupportable and erroneous assumptions and speculations and conjecture,” “without evidentiary support or based on factors that were either speculative or conjecture[,]” “confusing[,]” “unduly prejudicial[,]” and “more misleading than probative[.]” (Evangelis Decl., Exh. 2, pp. 34, 35.) Barclay’s briefs fail to address these findings and demonstrate that they were wrong and prejudicial, so, independent of collateral estoppel, this part of the motion for new trial is denied.

Shell contends the collateral estoppel argument fails because “[t]he Water Board’s technical staff . . . rejected Dr. Dagdigian’s opinions.” (Opposition, p. 10.)

It is true that Dr. Dagdigian provided two reports to the Water Board. (See Miller Decl., Exhs. 16, 17.) The technical staff responded with a 98-page letter in which they analyze and disagree with many of his major conclusions. (See id. at Exh. 19.)

The potential problem with the staff document is that it is not referenced in the CAO, nor is Dr. Dagdigian. Indeed, Barclay argues that staff comments lack judicial character and cannot support collateral estoppel. (See Reply, pp. 10-11.)

Shell claims in a footnote that the document “was part of the record certified by Barclay on review[,]” insinuating that the Court of Appeal considered the document and accepted the staff’s findings. (Opposition, p. 11 n.6.)

Even assuming collateral estoppel does not apply to the document itself, the key is:

* Dr. Dagdigian’s opinions and the staff response were part of the record in the various proceedings. (See, e.g., id. at pp. 10-11 [citing Barclay’s 3/4/16 Verified First Amended Petition for Writ of Administrative Mandamus, the 3/24/17 trial transcript, Barclay’s 3/20/18 Opening Appellate Brief, Barclay’s 11/9/18 Reply Appellate Brief, etc.].)

* The Court of Appeal held that “substantial evidence” supported the Water Board’s rejection of his opinions and Judge Hogue’s decision to rely, instead, on percipient witness testimony:

Dagdigian, a nonpercipient expert witness, provided a report (over 180 pages in length) in which he opined as to Barclay’s “explicit knowledge” and as to what petroleum residue was removed from the Site and what remained. Among his findings were the following: “Barclay did not observe, grade or spread contaminated soil”; there was “no evidence that berm soils were impacted with petroleum hydrocarbons when Barclay used berm soil to fill the reservoirs”; and the hydrocarbon pollution on Site was the result of “upward migration” rather than due to any activities of Barclay.

The Water Board considered and rightly rejected these opinions and conclusions as there is substantial evidence, as indicated in the text earlier in this opinion, that supports both the Water Board’s discounting of these opinions and its contrary factual findings, as well as the trial court's determination to rely instead, inter alia, on the firsthand account of Bach, who was on the Site during grading and Site preparation, instead of a person who was not a percipient witness and who failed to acknowledge the substantial contrary evidence in the record.

* During the section 402 hearing, Dr. Dagdigian testified that he intended to incorporate the reports that he provided to the Water Board – i.e., the “rightly rejected” reports – into his report in the this action:

Q. . .You incorporate into the report that you prepared for purposes of this case every one of the reports that you submitted to the Water Board that the Court of Appeal said were rightly rejected, right? You incorporate those into your report here, right?

Q. BY MR. SCHRADER: And your intention is that your report that you issued in this case adopts all of those earlier reports that you had submitted to the Water Board, correct?

While the motion can be denied independent of the collateral estoppel issue, these facts support the Court’s exclusion of Dr. Dagdigian.

[A] new trial is needed to remedy Shell’s inappropriate argument to the jury that Barclay’s insurers will cover the cost of this case. After using deposition testimony to tell the jury that Barclay can pay for “clean-up and abatement” using “insurance” [citation], Shell argued in closing that Barclay “ha[s] assets in the form of insurance” and “can’t retract that now” [citation], asserting that insurance coverage will cover liability here. Although Shell has argued that Barclay opened the door by offering testimony explaining that it is no longer in operation and has no assets, these true statements do not justify Shell’s misleading suggestion that insurance — which is hotly contested — is certain to be available here.

Barclay argues that evidence about its insurance should not have been admitted — another argument carefully considered and properly rejected at trial. Barclay opened the door to rebuttal evidence on insurance by designating testimony of Jared Gale and arguing to the jury that Barclay has no assets. Shell’s rebuttal designations of Mr. Gale testifying that Barclay has insurance as an asset corrected the misleading impression Barclay tried to give that it has no assets. Moreover, Barclay represented to the Water Board that it has insurance as an asset, and it told this Court and the jury that the parties’ financial resources are relevant to allocation. Barclay cannot claim it has insurance as an asset in one forum and disclaim insurance as an asset here. This rebuttal evidence was properly admitted.

The Court agrees with Shell. “Under the doctrine of ‘opening the door,’ one party may render otherwise inadmissible evidence admissible by introducing the topic selectively such as to leave a misleading impression.” (People v. Kerley (2018) 23 Cal.App.5^th 513, 553.) Shell’s brief cites ample evidence demonstrating that Barclay opened the door.[1] Jared Gale is a vice president of Barclay and Dole and the person most knowledgeable concerning assets. In response to Shell’s designations of Gale’s deposition, Barclay designated testimony about Barclay’s alleged lack of assets and capital. Shell counter-designated testimony in which Gale states that Barclay does have assets in the form of access to insurance. Gale is the one who described the insurance as an asset. (See, e.g., Opposition, p. 14 [citing evidence].) And Barclay and Dole told the Water Board that “Dole maintains liability insurance for Barclay[,]” stating that “Barclay does have assets” “in that limited sense[.]” (Miller Decl., Exh. 28, p. 2.) The Court already denied Barclay’s mistrial motion on this issue, and nothing new is cited here that changes the analysis. This portion of the motion is because it was legitimate rebuttal evidence.

[1] The reply brief admits that the deposition testimony Barclay designated “about its financial condition” “showed that Barclay lacked assets . . . .” (Reply, p. 14, emphasis added.)