Judge: Jon R. Takasugi, Case: 22STCV31799, Date: 2023-05-19 Tentative Ruling

Case Number: 22STCV31799    Hearing Date: May 19, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ motion for judgment on the pleadings is DENIED.

On 9/28/2022, The People of the State of California, on the relation of the South Coast Air Quality Management District (Plaintiff) filed suit to recover civil penalties based on Health and Safty Code section 42402 and South Coast AQMD Rule 1403 from Carey Hellman and the Carey Hellman 2017 Family Trust (collectively, Defendants).

        Now, Defendants move for a judgment on the pleadings.

Factual Background

        This action arises out of alleged asbestos exposure at apartment 832 ½ S. Mansfield Avenue, located in the City of Los Angeles, California 90036 (Subject Property) owned by Defendants.

Discussion

        Defendants argue that Plaintiff’s claim is barred by the statute of limitations.

CCP section 338(k) provides a three-year statute of limitations for “an action commenced under Division 26 (commencing with Section 39000) of the Health and Safety Code.” CCP section 338(k) further provides that “[t]hese causes of action shall not be deemed to have accrued until the discovery by the State Air Resources Board or by a district, as defined in Section 39025 of the Health and Safety Code, of the facts constituting grounds for commencing the action under its jurisdiction.” 

Here, Plaintiff alleges:

-         It received a complaint about possible asbestos exposure at the Subject Property on March 6, 2019. (Complaint ¶ 28.)

-         In response, Plaintiff sent their District inspector to the Subject Property where they met with the complainant residing at there. The inspector was informed by the complainant that they had conducted their own asbestos survey performed by Certified Asbestos Consultant (CAC) which alleged confirmed the HVAC system ducting wrapping tested positive for asbestos. The inspector observed that “the apartment unit had been undergoing renovations and noticed that a chunk of plaster at the dining room had been disturbed.” (Complaint at ¶30.)

-         The inspector asked the complainant if they had access to the asbestos survey that they had performed and they showed the inspector a copy of the results.” (Complaint at ¶30.) The inspector then collected 4 bulk samples and submitted them to the South Coast AQMD Laboratory for asbestos testing. (Id. at ¶32.)

-         On April 2, 2019, the inspector received laboratory results of the samples taken from the Subject Property which allegedly confirmed that the fibrous paper wrapping tested positive for chrysotile at 58% ACM. (Id. at ¶39.)

-         On August 30, 2019, the inspector allegedly served Defendants a copy of the Notice of Violation of District Rules 1403(d)(1)(A), 1403(d)(1)(B), 1403(d)(1)(C)(ii)(V), 1403(d)(1)(D), 1403(d)(1)(G), and 1403(d)(1)(H). (Id. at ¶42.)

Based on these allegations, Defendants argue that the “discovery date” was March 6, 2019, and accrual began thereafter. Given that this claim was not filed until September 28, 2022, this action would be time-barred by the three-year statute of limitations.

The Court disagrees. In support of their contention that March 6, 2019 is the discovery date as a matter of law, Defendants argue that the accrual date is the day that Plaintiff had a “suspicion of wrongdoing,” citing Jolly v. Eli Lilly & Co. (1988), 44 Cal.3d 1103, 1111.)

However, CCP section 338(k) expressly states that the cause of action is not deemed to have accrued until “discovery by the State Air Resources Board or by a district, as defined in Section 39025 of the Health and Safety Code, of the facts constituting grounds for commencing the action under its jurisdiction.” As such, the fact that Defendants received a complaint about potential asbestos exposure at the Subject Property, does not mean that the State Air Resources Board or District thereby had the facts necessary to commence an action at that time. Rather, it was not until laboratory results had been received allegedly confirming the presence of asbestos that Plaintiff discovered the facts constituting grounds for commencing this action. As such, while the Court makes no factual determination as to the actual date of discovery, the Court finds that, accepted as true at the pleading stage, Plaintiff’s allegations could show that the facts constituting grounds for commencing the action were not discovered until April 2, 2019. Moreover, as noted by Plaintiff in opposition, Defendants’ argument fails to take into account the cure period provided by the District. (Opp., 7: 25-27.)

Per California’s Emergence Rule No. 9, statute of limitations that exceeded 180 days were tolled between April 6, 2020 and October 1, 2020. Moreover, on September 6, 2022, Plaintiff and Defendants entered into a Statute of Limitations Tolling Agreement which tolled the statute of limitations for the period from September 6, 2022, through October 6, 2022. (Nguyen Dec. at ¶3.)

Taken together, the Court concludes that Plaintiff’s Complaint does not appear to be time-barred on its face.

Based on the foregoing, Defendants’ motion for judgment on the pleadings is denied.

It is so ordered.

Dated:  May     , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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