Continental Ins. Co.
Filed 5/15/06 Continental Ins. Co. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CONTINENTAL INSURANCE COMPANY, Plaintiff-in-Intervention and v. THE POMONA REDEVELOPMENT AGENCY et al., Plaintiffs and Respondents. | B184446 (Los Angeles County Super. Ct. No. KC 039134) |
APPEAL from an order of the Superior Court of Los Angeles County. Daniel Buckley, Judge. Affirmed.
Adler Law Group, Erwin E. Adler and Elizabeth A. Sullivan for Plaintiff-in-Intervention and Appellant Continental Insurance Company.
Wood & Bender, David P. Bender, Jr., Martha Sharp and Arnold S. Levine for Defendant and Respondent, City of Pomona.
Daley & Heft, Robert W. Brockman and Scott E. Patterson for Plaintiff and Respondent City of Pomona Redevelopment Agency.
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Plaintiff-in-intervention Continental Insurance Company appeals the trial court's denial of its motion to intervene in the underlying action between the City of Pomona (City) and the Redevelopment Agency of the City of Pomona (Agency) concerning the liability of the City for cleanup costs of hazardous wastes at a landfill on Agency property. Continental, an excess insurer for City, contends the action currently pending between the City and the Agency is not a bona fide adversarial proceeding, but rather is a collusive suit designed for the purpose of permitting the City, which does not have any first-party insurance for cleanup costs, to pay a third-party liability claim to itself in the guise of the Agency. Continental therefore seeks to intervene in order to dismiss the action. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Phillips Ranch was originally located in an unincorporated area of Los Angeles County. During the period 1925 through 1960, the City and other governmental agencies, as well as private businesses, dumped waste at a landfill known as the Phillips Ranch Landfill (Landfill) located on the Phillips Ranch. During the period 1960 through the 1980s, the City annexed portions of Phillips Ranch; currently, Phillips Ranch is entirely within the city limits of Pomona.
From approximately 1925 through 1934, some of the solid waste brought to the Landfill was incinerated and buried there. As a result, the Landfill contains hazardous materials consisting of burned ash with elevated levels of heavy metals. The Landfill was closed in the 1960s. In 1964, the Landfill, which had been owed by the Phillips family, was sold to Alvin Lesser; Lesser sold the Landfill to Morwill Construction Co. (Morwill) in 1968. Morwill in turn sold the Landfill to the Agency in 1982. No remediation action had been taken at the Landfill during this time, and the parties agree that Morwill had actual or constructive notice of the presence of the Landfill on the Phillips Ranch property.
The Agency claims it was unaware of the presence of the Landfill on the Phillips Ranch property, and only learned of the contamination from a prospective purchaser in the early 1990s. After learning of the contamination, in 1995 the Redevelopment Agency issued Polanco Act[1] notices to Morwill as the prior owner of the Property and to the City as the transporter of waste to the Landfill. The City tendered the matter to its insurance carriers[2] and attempted to negotiate with the parties. Continental received the Polanco Act notice on November 14, 1995, and denied coverage on July 30, 1996.
After the parties were unable to reach a settlement, the Agency filed its complaint against the City and Morwill on June 10, 2002, seeking a declaration of the parties' liabilities and cost recovery for the cleanup of hazardous substances deposited in the Phillips Ranch landfill. The complaint stated five causes of action for recovery of cleanup costs, declaratory relief, nuisance, unjust enrichment, and equitable indemnity. The City tendered the claim to Continental in September 2002; Continental denied its policy was implicated in March 2003 due to its status as excess carrier, and advised the City it was closing its file on the matter.
On February 26, 2004, the trial court granted Morwill's summary judgment motion on the first and second causes of action on the grounds that the Agency had not established that Morwill was a â€
