Bertrang v. Ivory Holdings, LLC

TODD BERTRANG; OPHIE BELTRAN, Plaintiffs, v. IVORY HOLDINGS, LLC, a limited liability company; LIDO SAILING CLUB, LLC, a limited liability company, and DOES 1 through 10, inclusive, Defendants.

No. 2:20-cv-10519-ODW (ASx)

United States District Court, C.D. California

July 6, 2021

ORDER GRANTING MOTIONS TO DISMISS [32] [33]

OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs Todd Bertrang and Ophie Beltran bring this action against Defendants Ivory Holdings, LLC and Lido Sailing Club, LLC for renting a property to Plaintiffs that was allegedly tainted with toxic substances. (First Am. Compl. (“FAC”) ECF No. 29.) Both Ivory and Lido move to dismiss, separately. (Lido's Mot. Dismiss (“Lido's Mot.”), ECF No. 32; Ivory's Mot. Dismiss (“Ivory's Mot.”), ECF No. 33.) Plaintiffs filed two Oppositions to Lido's Motion but failed to file any opposition to Ivory's Motion. (See First Opp'n to Lido's Mot. to Dismiss (“Opp'n”), ECF No 40; Second Opp'n to Lido's Mot. to Dismiss, ECF No. 41.) Neither Defendant filed any reply. (See Docket.) For the reasons discussed below, both Motions are GRANTED.^[1]

II. BACKGROUND^[2]

Ivory owns certain property (the “Premises”), which Bertrang subleased from Defendants from May 2014 “through December 2020.”^[3] (FAC ¶¶ 9-11.) Beltran is “a vendor that does packaging for [Bertrang] at the Premises.” (Id. ¶ 1.) Non-parties Autocats, Inc. and ELV Recycling, Inc. are previous tenants of the Premises who recycled motor vehicle parts and metals, causing “dangerous chemicals . . . such as Chromic Acid and Spent Catalyst” to be “deposited at the Premises.” (Id. ¶¶ 13-14.)

“When Plaintiffs entered the [P]remises, on or about May 2014, [they] were not made aware of the dangerous chemicals” therein, and “[t]his caused Plaintiffs to unknowingly be exposed to chemicals such as Chromic Acid and Spent Catalyst.” (Id. ¶ 15.) Plaintiffs subsequently “discovered” such exposure on or about late August 2019. (Id. ¶ 16.) As a result of the exposure, Todd suffered “complete renal failure requiring hospital treatment, loss of 75% of his lung function, an inflamed bleeding colon, memory problems, an inflamed spine, extreme vision loss, extreme fatigue, and organ malfunctioning and loss.” (Id. ¶ 22(a).) As for Beltran, she suffered “extremely swollen (almost non-functional) hands, extremely swollen joints, . . . numbness in her extremities, inflamed legs, back, and spine, memory problems and daily migraines.” (Id. ¶ 22(b).)

Based on the foregoing, Plaintiffs assert five causes of action: (1) violation of the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. § 6901 et seq., (2) negligence under premises liability, (3) strict liability for ultrahazardous activity, (4) negligent infliction of emotional distress, and (5) intentional infliction of emotional distress. (Id. ¶¶ 18-59.) Now, Defendants move to dismiss.

III. LEGAL STANDARD

Under Rule 12(b)(1), a defendant may move to dismiss a complaint for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). A challenge pursuant to Rule 12(b)(1) may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Where a defendant brings a facial attack on the district court's subject-matter jurisdiction under Rule 12(b)(1) the court “assume[s] [plaintiff's] [factual] allegations to be true and draw[s] all reasonable inferences in his favor.” Wolfe v. Strankman, 392 F.3d 358, 360 (9th Cir. 2004). By contrast, in a factual attack the challenger disputes the “truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Wolfe, 392 F.3d at 362 (citing Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)).

A court dismissing a complaint should provide leave to amend if the complaint could be saved by amendment. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); see also Fed. R. Civ. P. 15(a)(2) (“The Court should freely give leave when justice so requires.”). Reasons to deny leave to amend include “bad faith, undue delay, prejudice to the opposing party, and/or futility.” Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (quoting William O. Gilly Enters. v. Atl. Richfield Co., 588 F.3d 659, 669 n.8 (9th Cir. 2009)); see also Foman v. Davis, 371 U.S. 178, 182 (1962).

IV. DISCUSSION

Between Lido and Ivory, they assert at least five unique arguments for dismissal. (See generally Lido's Mot.; Ivory's Mot.) The Court need not address them all because, among other reasons, Ivory correctly argues that Plaintiffs fail to sufficiently allege standing to bring a claim under RCRA. (Ivory's Mot. 10-11.)

A. Plaintiffs' RCRA Claim

“RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC Western, Inc., 516 U.S. 479, 483 (1996). Its “primary purpose . . . is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.'” Id. (quoting 42 U.S.C. § 6902(b)). The RCRA provision under which Plaintiffs assert their claim, 42 U.S.C. § 6972(a)(1)(B), permits private citizens to bring RCRA claims “against any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” Ecological Rts. Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 514 (9th Cir. 2013) (emphasis added) (quoting 42 U.S.C. § 6972(a)(1)(B)).

Under Article III, the Court's jurisdiction is limited to cases and controversies, and “[s]tanding is an essential, core component of [that] requirement.” San Diego Cnty. Gun Rts. Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). To have standing, Plaintiffs must demonstrate an injury-in-fact to a legally protected interest that is concrete and particularized and actual or imminent, a causal connection between their injury and the conduct complained of, and a likelihood the injury will be redressed by a favorable decision. Id. Under this standard, “[t]he mere existence of a statute, which may or may not ever be applied to plaintiffs, is not sufficient to create a case or controversy within the meaning of Article III.” Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir. 1983).

Section 6972(a)(1)(B) only provides a cause of action for injunctive relief. Meghrig, 516 U.S. at 484. To assert such a claim, “there must be a threat which is present now, although the impact of the threat may not be felt until later.” Id. at 486 (quoting Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir. 1994)). Where plaintiffs no longer have any interest in the subject property, they lack standing to bring a claim under § 6972(a)(1)(B) because they would no longer benefit from any relief that could be granted. See, e.g., Doyle v. Town of Litchfield, 372 F.Supp. 288, 302 (D. Conn. 2005) (“[N]one of the injuries [plaintiff] alleges can be redressed by a favorable RCRA decision” where “[plaintiff] no longer has an interest in the [premises].”); Wademan v. Concra, 13 F.Supp.2d 295, 304-05 (N.D.N.Y 1998) (“The plaintiffs are not faced with an imminent harm because they are no longer associated with the [premises]. They therefore lack standing because any remedial action [under RCRA] would not [a]ffect or assist the plaintiffs.”).

Here, Plaintiffs allege that they “continued occupying the Premises . . . through December 2020.” (FAC ¶ 11; see also Opp'n 3 (“Plaintiffs occupied the Premises through December 2020.”).) Plaintiffs do not allege any current interest in the Premises. Thus, Plaintiffs lack standing to bring their RCRA claim. Although this argument was raised only by Ivory, it applies with equal force to the extent Plaintiffs' RCRA claim is asserted against Lido. See Abigninin v. AMVAC Chem. Corp., 545 F.3d 733, 743 (9th Cir. 2008) (“A district court may properly on its own motion dismiss an action as to defendants who have not moved to dismiss where such defendants are in a position similar to that of moving defendants.” (brackets omitted).). Accordingly, Plaintiffs' first cause of action under RCRA is DISMISSED.

B. No. Leave to Amend

Additionally, the Court finds leave to amend would be futile, for three reasons.

1. Failure to Oppose

First, Plaintiffs did not oppose Ivory's Motion, and the Court deems the non-opposition as consent to the granting of Ivory's Motion. “The failure to file [an opposition], or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion . . . .” C.D. Cal. L.R. 7-12; see Hines v. Toyota Motor Sales, U.S.A., Inc., 504 Fed.Appx. 642, 643 (9th Cir. 2013) (affirming grant of unopposed motion to dismiss, based on Local Rule 7-12). Before granting an unopposed motion, courts must consider: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The first factor always weighs in favor of dismissal, Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999), and the fourth factor often weighs against dismissal, Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir. 1998).

Here Plaintiffs' failure...