Judge William A. Crowfoot, Case Number: 21AHCV00070, Date: 2023-10-04 Tentative Ruling

Judge: William A. Crowfoot, Case: 21AHCV00070, Date: 2023-10-04 Tentative Ruling

On November 4, 2021, the City of Pasadena (“Pasadena”) filed this action against defendant California Institute of Technology (also known as and referred to herein as “Caltech”) asserting claims for continuing trespass, continuing private nuisance, continuing public nuisance, and declaratory relief. Pasadena alleges that its drinking water supply wells, namely the Sunset wells and Eastside wells, located in the Pasadena subarea of a water basin known as the Raymond Groundwater Basin (“Basin”), are contaminated by various man-made chemicals. (Compl., ¶ 1.) Pasadena seeks remediation costs from Caltech, who managed and operated, and continues to manage and operate, the National Aeronautics and Space Administration’s (“NASA”) Jet Propulsion Laboratory (“JPL”), located at 4800 Oak Grove Drive in Pasadena (“JPL Facility”). Plaintiff alleges that Caltech released and/or disposed of contaminants into the soil and groundwater at the JPL Facility, which caused the contamination of its wells which are downgradient (or downstream) of the Facility. (Compl., ¶ 3.) The JPL Facility is a federally-funded research and development center (“FFRDC”) owned by NASA and operated as a division of Caltech through a contract between NASA and Caltech. (Compl.,. ¶ 16.)

In 1992, after investigating contamination found in the Monk Hill wells, the United States Environmental Protection Agency (“EPA”) listed the JPL Facility as a Superfund site under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq. (Compl., ¶ 118.) In 2018, EPA issued its Record of Decision (“ROD”) for the JPL Facility relating to one of the three operating units (“OUs”), specifically OU3 which consists of off-Facility groundwater adjacent to the JPL Facility. (Compl., ¶¶ 121, 129.) The ROD identifies the cleanup action selected by NASA and EPA for the contaminated groundwater off-site and downgradient of the JPL Facility, which includes the Monk Hill wells. (Compl., ¶ 129.) The EPA rejected Pasadena’s request to include treatment of contaminated groundwater in other areas of the Basin, including the Sunset wells, in the ROD’s remedy. (Compl., ¶ 129.) Instead, the EPA stated that groundwater located between the JPL Facility and the Sunset wells will be monitored and evaluated, at a minimum, as part of five-year reviews. (Compl., ¶ 130.) Pasadena alleges that since the EPA’s ROD in 2018, groundwater sampling and testing data has shown that contaminates from the JPL Facility have migrated through and from the Monk Hill subarea into the Sunset wells and Eastside Wells. (Compl., ¶ 132.)

On April 11, 2022, the Honorable Colin P. Leis issued an order (the “April 2022 Order”) denying Caltech’s demurrer or, alternatively, motion to dismiss or stay this action. In its moving papers, Caltech argued that this action could not continue without joining the United States of America (“United States”) as a “necessary party” because Pasadena’s allegations assume, as a matter of law, that the contamination of the Sunset and Eastside Wells will become a “facility” under CERCLA, and any remediation efforts will require EPA approval. Judge Leis found that the United States was not a necessary party to the action and emphasized that the United States, through the EPA, has declared that the JPL Facility did not include the Sunset and Eastside wells. Judge Leis also specifically noted that the record at that time did not support Caltech’s claim that any contamination from JPL must be within EPA’s jurisdiction.

On March 8, 2023, the Second Appellate District of the Court of Appeal denied Caltech’s petition for writ of mandate. (Carlin Decl., Ex. G.) The court left open the possibility of a stay if Pasadena “proves its underlying contention that the contamination is from the Jet Propulsion Lab”, so that new information could be presented to the EPA, which might then take over remediation efforts and amend its ROD.

On August 21, 2023, Caltech filed this motion for a stay based on the doctrine of forum non conveniens.

On September 14, 2023, Caltech filed a complaint in the Central District of California against Pasadena and the United States (the “Federal Action”) for cost recovery under CERCLA and declaratory relief. (Dintzer Reply Decl., Ex. A.) The matter has been assigned to the Honorable André Birotte Jr.

On October 4, 2023, after oral argument in this matter, the Court continued the hearing and ordered the parties to provide supplemental briefs.

When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just. (Code Civ. Proc., § 410.30, subd. (a).) The doctrine of forum non conveniens “is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.)

In considering motions based on forum non conveniens, courts undertake a two-part analysis. First, the court determines whether the alternate forum is a suitable place for trial. (Id.) To be suitable, a forum need only have personal jurisdiction and not have a statute of limitations that would bar the action. (Chong v. Superior Court (1997) 58 Cal.App.4th 1032.) Second, the court considers the private interests of the litigants and the interests of the public in litigating the matter in one forum or another. (Stangvik, supra, 54 Cal.3d at p. 751.) The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. (Ibid.) The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation. (Ibid.) The moving party bears the burden of establishing both components in the analysis. (Ibid.) The trial court has considerable discretion to decide motions based on forum non conveniens. (Ibid.)

Caltech contends that this action should be stayed pursuant to the doctrine of forum non conveniens so that it may pursue litigation in federal court. As stated above, the Federal Action names Pasadena and the United States as defendants. Caltech asserts claims for cost recovery under CERCLA, and seeks a declaratory judgment that Pasadena and the United States are jointly and severally liable for response costs incurred or to be incurred by Caltech. (Dintzer Reply Decl., Ex. A, ¶ 77.) Caltech also requests a declaratory judgment that Pasadena may not conduct any remediation of contamination without EPA approval if the contamination originated from the JPL Facility; Caltech specifies that its request for a declaratory judgment “would not prohibit [Pasadena] from conducting remediation at the Sunset and Eastside Wells” if Pasadena concedes that the contamination did not originate from the JPL Facility. (Id. at ¶¶ 83-84.)

A “suitable” alternative forum is one in which a valid judgment may be obtained against defendant. (See Stangvik, supra, 54 Cal.3d at p. 560, fn. 3.) Here, Caltech argues that the Central District is a suitable alternative forum because federal courts have exclusive jurisdiction over CERCLA cost recovery claims and may exercise supplemental jurisdiction over Pasadena’s state law claims if Pasadena brings them as counterclaims. (Mot., pp. 17-18.) Caltech also argues that federal court is a more suitable venue because only there may the United States be brought into the litigation. Caltech additionally argues, and Pasadena does not dispute, that if JPL contamination has reached Pasadena’s Sunset and Eastside wells, Pasadena will become a “covered person”/potentially responsible party (“PRP”) by virtue of being the owner of the area where hazardous substances have “come to be located.” At that point, any remediation efforts must be approved by the EPA as “consistent with the national contingency plan.” (Atlantic Richfield Co. v. Christian (2020) 590 U.S. ---, 140 S.Ct. 1335, 1357.) According to Caltech, a stay is warranted because if EPA declines to approve Pasadena’s proposed remediation, then Pasadena’s state law claims may not proceed until the JPL Facility is delisted as a Superfund site, which may not occur for decades. (Mot., p. 16.)

Pasadena argues that the doctrine of forum non conveniens only applies when the alternate forum is outside the state of California. However, in interpreting the statute governing forum non conveniens motions, “[i]t is black letter law that, when a federal action has been filed covering the same subject matter as is involved in a California action, the California court has the discretion but not the obligation to stay the state court action.” (Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800, 804.) The California Supreme Court has stated that “the conflict of sovereignties” at issue in deciding whether to apply forum non conveniens is no different even if the state action and federal action are within the same state. (Thomson v. Continental Inds. Co. (1967) 66 Cal.2d 738, 747.) Moreover, once a defendant has shown that an alternative forum exists, the burden shifts to the plaintiff to produce evidence showing that the alternative forum is inappropriate. (Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177, 1191.) Here, Pasadena generally asserts that a plaintiff is entitled to its choice of forum and speculates that the district court may decide not to exercise supplemental jurisdiction over its state law claims against Pasadena, but to date, Pasadena has not produced evidence demonstrating that federal court is unsuitable as a forum. Pasadena’s motion to dismiss Caltech’s Federal Action will be heard on December 15, 2023, and there is no evidence yet that Pasadena will be unable to assert its state law claims against Caltech as counterclaims.

Pasadena also relies on Mave Enterprises, Inc. v. Travelers Indemnity Co. (2013) 219 Cal.App.4th 1408 (“Mave”) as instructive and argues that the motion for a stay should be denied because the superior court obtained jurisdiction over this matter first. In Mave, the court of appeal affirmed the superior court’s denial of a motion for a stay and emphasized that the superior court acquired subject matter jurisdiction 2 years before the federal district court. However, the Mave court also determined that the superior court was just as capable as the federal district court of resolving the litigation, which involved interpretating the Federal Arbitration Act or California Arbitration Act. Here, Caltech has shown that the private and public interests both favor federal court because this Court may not be as capable of fully resolving this litigation insofar as there are limits to its authority to compel a remedy.

The private interests to be considered when ruling on a motion to stay include those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. (Stangvik, supra, 54 Cal.3d at p. 751.) Caltech argues that federal court is uniquely suited to handling this dispute because only the Federal Action will compel the participation of the United States in discovery and settlement discussions. (Motion, pp. 19-20.) Pasadena asserts that any limitation on discovery from the federal government is irrelevant because no testimony from witnesses, other than expert witnesses, is necessary, there is an extensive administrative record, and federal documents can be obtained through the Freedom of Information Act. But even if there are no living percipient witnesses, the district court’s subpoena power is an advantage to making discovery more convenient where decisions and documents of federal agencies are involved over a stretch of time.

Most important, Pasadena has not, and cannot, articulate the overarching value of a superior court judgment. After considering extensive briefing and oral argument, this Court’s role appears limited to factfinding, with no ability to provide or order the remedy sought by Pasadena. Any avenue of litigation towards an enforceable judgment requires eventual action by the EPA. There is no reason to believe that the EPA would be more receptive to a superior court judgment than Pasadena’s previous attempts to have EPA amend its ROD.

The public interest factors also weigh in favor of a stay or are, at best, neutral. Although a jury pool in state court will include local residents who might have more of an interest in the quality of their groundwater supply, the federal government also has a strong interest in ensuring that federal agencies act in accordance with CERCLA with respect to a federal Superfund site.

Whether it is true, as Caltech argues, that local state courts are more congested than federal courts and federal courts are better-equipped with resources to review the federal administrative record and any technical expert witness testimony involved in this litigation, is not a significant consideration at this point because (a) this Court has no way of undertaking a comparative analysis of the relative time and other resources available to a federal court and a superior court as a general matter, and (b) more to the point, Pasadena here seeks a jury trial, which would require the parties to refrain from inundating the jury with information marginally relevant to the question of whether JPL contaminated Pasadena’s wells. It is if the answer to that question becomes “yes” that the problem becomes more complex, and put simply, more inevitably “federal.” There appears to be significant judicial economy for both the state and federal courts to be achieved in having that threshold question of causation, and any subsequent damages and remedies issues, decided in the one court, which isn’t this Court, that has jurisdiction over all the parties relevant to each stage of the litigation. So it is worth finding out whether the federal district court accepts or dismisses the case before it.

Accordingly, under the discretionary standard of forum non conveniens, the Court imposes a short stay of six months to allow the pleadings stage of the Federal Action to conclude.

The stay will last six months and will automatically expire at the end of this period unless a party moves to extend the length of the stay.

The Court sets a status conference/trial setting conference for ______ at 8:30 a.m. in Department 3 of the Alhambra Courthouse. The parties are to file a joint status report no later than 5 days before the hearing.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.