Judge Stephen I. Goorvitch, Case Number: 24STCV06917, Date: 2024-08-28 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCV06917, Date: 2024-08-28 Tentative Ruling

California Department of Department: 82 Toxic Substances Control Judge: Stephen I. Goorvitch

Petitioner Industrial Service Oil Company, Inc. (“Petitioner” or “ISOC”) filed the instant petition for writ of mandate and complaint for declaratory and injunctive relief against the California Department of Toxic Substances Control (“Respondent” or the “DTSC”). Petitioner alleges that the “Final Inspection Violation Scores” issued by the DTSC to Petitioner in October 2023 and February 2024 were “arbitrary and erroneous” and seeks reversal. Now, Respondent demurs to the petition for writ of mandate and moves to strike certain allegations. The court overrules the demurrer to the first cause of action as the petition sufficiently alleges a cause of action under Code of Civil Procedure section 1085. The court sustains the demurrer to the third cause of action, as “injunctive relief” is not a cause of action, but this order shall not preclude Petitioner from seeking that remedy in connection with the first cause of action. The court denies the motion to strike but stays the cause of action for declaratory relief until the court resolves the petition for writ of mandate.

Petitioner owns and operates a facility located at 1700 South Soto Street in Los Angeles, California which provides “commercial environmental services involving hazardous waste recycling, storage, and treatment.” (Petition (“Pet.”) ¶ 10.) On July 11, 2016, Safety-Kleen acquired all outstanding shares of ISOC, and ISCO is now a wholly-owned subsidiary of Safety-Kleen.” (Ibid.) According to the petition, “ISOC’s new parent company has made substantial investments in the Facility, improved hazardous waste training and oversight, and addressed all prior compliance concerns that were ongoing at the time of acquisition.” (Ibid.)

The petition challenges “Final Inspection Violation Scores” issued by DTSC to Petitioner’s permitted hazardous waste facility in October 2023 and February 2024 pursuant to the DTSC’s Violation Scoring Procedure (“VSP”) regulations. (Id. ¶ 1; see also Id. ¶¶ 17-22 and Safety-Kleen of California, Inc. v. Department of Toxic Substances Control (2024) 100 Cal.App.5th 172, 178-179 for summaries of Respondent’s VSP regulations].)

The petition includes three causes of action: (1) a petition for writ of mandate pursuant to Code of Civil Procedure section 1085; (2) a cause of action for declaratory relief pursuant to CCP section 1060; and (3) a claim for injunctive relief. In relevant part, Petitioner seeks the following remedies in the prayer for relief:

2. For the issuance of a writ of mandate compelling DTSC to (i) set aside and vacate the Final Inspection Violation Scores as alleged herein and, if not ordered to be reduced to zero in their entirety, to reconsider the Inspection Violation Scores as directed by and under the continuing supervision of this Court; and (ii) correct Respondent’s erroneous calculation of the VSP scoring “denominator” as alleged herein.

3. For a declaration that the VSP Program as administered by DTSC and as applied by DTSC as alleged herein violates Petitioner’s right to due process of law and declaring the rights and duties of the parties herein;

4. For a declaration that the administrative enforcement of violations, and the administrative civil penalties which may be imposed under Health & Safety Code sections 25188, et seq. in relation to such enforcement, is subject to the five (5) year statute of limitations under Code of Civil Procedure section 338.1 applicable to civil enforcement of the same.

5. For an injunction barring Respondents from unlawfully applying the third-party compliance audit and other requirements applicable to Conditionally Acceptable facilities under Title 22, § 66271.56 to Petitioner’s Facility….

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) “[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) “‘[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)

Upon motion, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436.) As with a demurrer, “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc. § 437.) Courts take a “cautious” approach to motions to strike. “We have no intention of creating a procedural ‘line item veto’ for the civil defendant.” (PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1683.) “Judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

Respondent argues that the petition for writ of mandate is uncertain as to which “Final Inspection Violation Scores” Petitioner is challenging, and also whether Petitioner is challenging any facility VSP score. (Demurrer (“Dem.”) 10-11.) Here, in its first paragraph, the petition expressly states that Petitioner “seeks reversal of the arbitrary and erroneous ‘Final Inspection Violation Scores’ issued by DTSC to Petitioner’s permitted hazardous waste facility in Los Angeles, California … in October 2023 and February 2024.” (Pet. ¶ 1 [bold italics added].) The petition then summarizes in detail the October 2023 and February 2024 scores, the underlying violations, and the grounds that Petitioner challenges those scores. (Id. ¶¶ 2, 29-36, 42-48.) Exhibits F and I to the petition are Respondent’s decision letters in which the October 2023 and February 2024 Final Inspection Violation Scores were stated. (Id. Exh. F [October 2023 letter] and Exh. I [February 2024 letter].) In the first cause of action, Petitioner states that it is seeking a writ “compelling Respondent to set aside the Final Inspection Violation Scores issued to the Facility,” referring to the October 2023 and February 2024 scores. (Id. ¶ 53.) The petition also clearly states that, in a prior lawsuit, Petitioner challenged “the Final Inspection Violation Scores issued by the DRO in October 2020 for the ten-year period between January 1, 2009 to December 31, 2018” and that “those scores are not challenged in this action.” (Id. ¶ 11, fn. 5 [bold italics added].) Thus, the petition clearly alleges the Final Inspection Violation Scores that are being challenged in the first cause of action for writ of mandate, and also those that are not being challenged. These allegations are not uncertain.

The petition also alleges that “DTSC violated its own regulations, policy and guidance by improperly counting the number of inspections occurring over the ten-year VSP review period, resulting in incorrect annual VSP Facility Scores.” (Id. ¶ 3; see also Id. ¶¶ 37-39.) Petitioner then alleges that “[t]hese errors in calculating the ‘denominator’ for the Facility VSP Scores resulted in artificially inflated VSP scores, improperly placing ISOC in the Conditionally Acceptable compliance tier….” (Id. ¶ 40.) In the first cause of action, Petitioner seeks a writ directing Respondent to correct its “erroneous calculation of the VSP scoring ‘denominator’ as alleged herein.” (Id. ¶ 53.) The petition summarizes the alleged errors leading to the allegedly improper calculation of the scoring denominator. (Id. ¶¶ 37-40.) These allegations are not uncertain. Further, any ambiguities can be clarified in the discovery process.

Respondent contends that the petition is uncertain because it “include[s] allegations as to Final Inspection Violation Scores for the following two inspections: (1) the June 28, 2018 Compliance Evaluation Inspection (‘CEI’) and October 7, 2020 Financial Records Review (‘FRR’), and (2) the May 14, 2019 CEI and October 7, 2020 FRR.” (Dem. 10, citing Pet. ¶¶ 27-28, 35, 39.) These allegations appear to be included for background and context. (See Oppo. 9:4-9.) They also appear relevant to Petitioner’s broader claims challenging Respondent’s policies and practices in calculating Facility VSP scores. (See Id. ¶¶ 55-58.) Not only does Petitioner’s footnote make clear it is not challenging these scores, Respondent’s counsel confirmed this at a hearing in Industrial Service Oil Company, Inc. v. California Department of Toxic Substances Control, Case Number 20STCV48029. (See Court’s Minute Order, dated July 12, 2024, at 4-5.) Therefore, these allegations are merely background and do not render the claim uncertain.

Respondent demurs to the third cause of action solely on the grounds that injunctive relief is not an independent cause of action. (Dem. 11.) “Injunctive relief is a remedy, not a cause of action. A cause of action must exist before a court may grant a request for injunctive relief.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734.) Therefore, the court sustains the demurrer with out leave to amend. Nevertheless, Petitioner may still seek an injunction, as predicated on the first cause of action. “The remedy is available in a mandamus proceeding and is appropriate to restrain action which, if carried out, would be unlawful.” (County of DelNorte v. City of Crescent City (1999) 71 Cal.App.4th 965, 973.) Indeed, the prayer for relief seeks an injunction “barring Respondents from unlawfully applying the third-party compliance audit and other requirements applicable to Conditionally Acceptable facilities under Title 22, § 66271.56 to Petitioner’s Facility.” (Prayer ¶ 5.) “Because plaintiff has pled a viable claim for a writ of mandate, injunctive relief also is available.” (HNHPC, Inc. v. Department of Cannabis Control (2023) 94 Cal.App.5th 60, 73.)

Based upon the foregoing, the court sustains the demurrer to the third cause of action. This order shall not preclude Petitioner from seeking an injunction based upon the first cause of action. The court shall interpret Paragraphs 60 through 62 as providing notice in this regard and as part of the prayer.

The petition alleges that “certain of the alleged deviations [in Petitioner’s VSP score] did not rise to the level of Class I violations as they did not present a significant risk to human health or the environment.” (Pet. ¶ 2 [bold italics added]; see also id. ¶¶ 4.) Respondent moves to strike these allegations “because violations can be classified as Class I violations, even if they do not present a significant risk to human health or the environment.” (Motion to Strike (“Mot.”) 11.)

The Hazardous Waste Control Law (“HWCL”) “classifies violations into three primary categories: Class I violations; Class II violations; and minor violations, which are a subset of Class II violations.” (Safety-Kleen, supra, 100 Cal.App.5th at 178.) Health and Safety Code section 25110.8.5 defines “Class I violation,” in pertinent part, as follows:

(a) A deviation from the requirements of this chapter, or any regulation, standard, requirement, or permit or interim status document condition adopted pursuant to this chapter, that is any of the following:

(1) The deviation represents a significant threat to human health or safety or the environment because of one or more of the following: (A) The volume of the waste. (B) The relative hazardousness of the waste. (C) The proximity of the population at risk.

(2) The deviation is significant enough that it could result in a failure to accomplish any of the following: [enumerated failures]

(b) The deviation is a Class II violation which is a chronic violation or committed by a recalcitrant violator….

In Safety-Kleen, the Court of Appeal held that section 25110.8.5 “sets forth independent bases under subdivisions (a)(1), (a)(2), and (b), for categorizing a violation as a Class I violation and that violations under subdivisions (a)(2) and (b) may be classified as Class I without meeting subdivision (a)(1)’s requirement that a violation pose a ‘significant threat to human health or safety or the environment.’” (Id. at 177.)

Here, as argued by Petitioner, the petition alleges that Respondent abused its discretion in classifying certain conduct as a Class I violation under subdivision (a)(1) on the grounds that the deviation represented a significant threat to human health or safety or the environment. (See Oppo. 5-6; Pet. ¶ 30 and Exh. F.) Specifically, as Exhibit F, the petition includes the October 2023 dispute decision, which states in pertinent part: “the scoring matrix states that the deviation represents a significant threat to human health or the environment because of the volume of waste, which is approximately 547,334 gallons. I find a large volume of improperly managed waste can pose a significant threat to human health or the environment.” (Pet. Exh. F at 8.) The allegations in paragraphs 4 and 5 at issue are reasonably related to Petitioner’s challenge to this decision. Accordingly, the motion to strike is denied on this basis.

Petitioner’s second cause of action seeks a declaratory judgment “stating that administrative actions to recover civil administrative penalties under Health & Safety Code sections 25188, et seq. are subject to the five-year statute of limitations established by Code of Civil Procedure section 338.1.” (Pet. ¶ 9; see also id. ¶¶ 8, 16, 22, 56-57.) Respondent moves to strike the substantive allegations in the second cause of action for declaratory; the prayer seeking a declaratory judgment; and Exhibit B, which is a letter from Respondent related to the allegations in the second cause of action. (See Mot. 2-3, challenging ¶¶ 55-57, Prayer ¶ 4, and Exhibit B.)

Respondent argues that the second cause of action seeks an advisory opinion because “there is no actual, present controversy between ISOC and the Department regarding the statute of limitations applicable to an administrative enforcement proceeding” because “[t]he Department has not initiated a formal administrative action against ISOC, nor has ISCO alleged that the Department has or will bring such an enforcement action.” (Mot. 14:21-25.) Petitioner argues that “[t]he Department has repeatedly taken the position in official correspondence that it intends to pursue administrative enforcement for alleged violations occurring more than five years ago . . . .” (Oppo. 12:16-18.)

Here, the second cause of action is not derivative of, or related to, the first cause of action. The first cause of action challenges the scores themselves; the second cause of action seeks to preclude an enforcement action based upon those scores. The resolution of the first cause of action may resolve the second cause of action.

Based upon the foregoing, the court denies the motion to strike without prejudice. Instead, the court stays the second cause of action until resolution of the first cause of action. At that point, if the second cause of action is still at issue, the court will determine whether to transfer that cause of action to an independent calendar court or to keep the case in Department 82.[1]

2. The court overrules the demurrer to the first cause of action. The court sustains the demurrer to the third cause of action without leave to amend. However, this order shall not prevent Petitioner from seeking injunctive relief as part of the first cause of action. The court shall interpret Paragraphs 60 through 62 as providing notice in this regard and as part of the prayer.

4. The court stays the second cause of action pending resolution of the first cause of action.

6. The opening brief shall be filed and served at least 60 days in advance of trial; the opposition brief shall be filed and served at least 30 days in advance of trial; and the reply brief shall be filed and served at least 15 days in advance of trial.

7. Petitioner shall lodge the administrative record on a thumb drive at least 15 days before trial.

8. Respondent’s counsel shall provide notice and file proof of service with the court.

[1] Pursuant to the local rules, which designate Department 82 as a specialized writs and receivers department and not a general civil department, only a cause of action for writ of mandate is properly assigned to this department. (LASC Local Rules 2.8(d) and 2.9.) Local Rules 2.8(d) and 2.9 do not include a claim for declaratory relief as a special proceeding assigned to the writs departments. However, the court has discretion to keep such matters.