Filed 6/29/22 O’Brien v. Bridgestone/Firestone CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Olivia Rosales, Judge. Affirmed, in part; reversed in part.

Shapero & Shapero, Steven J. Shapero for Plaintiff and Appellant.

Larson, Garrick & Lightfoot, Arnold D. Larson and Darren M. Ballas for Defendant and Respondent.

___________________________________

Thomas O’Brien filed a complaint against a tire manufacturer alleging causes of action for negligence, negligence per se, fraudulent concealment, and intentional infliction of emotional distress (IIED) stemming from elevated levels of airborne trichloroethene (TCE) on property where the manufacturer deposited toxic waste from 1920 to 1971. The trial court granted Bridgestone’s motion for summary judgment, and O’Brien appeals.

We reverse the judgment as to O’Brien’s cause of action for negligence but otherwise affirm. We vacate an order denying O’Brien’s motion to tax costs.

BACKGROUND

A. Bridgestone’s Activities on the Property

The Firestone Tire & Rubber Company (Firestone) owned property in South Gate at the corner of Firestone Boulevard and Santa Fe Avenue, manufacturing tires there from 1928 to 1980. Firestone was ultimately succeeded by Bridgestone America’s Tire Company (Bridgestone).

Bridgestone sold the property to Hon Industries, Inc. (Hon) sometime after 1980, and it was eventually controlled by Iron Mountain, which leased the property to O’Brien in 1993.

In 1994, the California EPA, Department of Toxic Substances Control (EPA), issued an Imminent and Substantial Endangerment Order and Remediation Action for the Property regarding a plume of solvents entering the ground and groundwater. The EPA notified current and former owners, including Bridgestone, of the order, but after years of studies issued a No Further Action Letter in 2009, authorizing unrestricted use of the property.

Meredith Firestone, LLC, Firestone LLC, and then-Santa Fe-Firestone, LLC thereafter acquired ownership of the property, and Santa Fe-Firestone renewed O’Brien’s lease on December 1, 2007.

In 2010, Santa Fe-Firestone sold the property to the Los Angeles Community College Board District (District), which took over the property’s management and O’Brien’s lease.

In March of 2012, a “sampling event occurred” pertaining to indoor air contamination on the property.

In June 2012, Bridgestone became aware of this contamination, requested sampling data, commissioned studies, and participated in conference calls and meetings with the EPA concerning the contamination. Bridgestone designed a temporary ventilation system to remediate the contamination, offered to build it on the property, and urged the District to install the system, but the remediation did not occur.

In January 2013, the District entered into a Voluntary Organic Cleanup Agreement with the EPA.

In August 2014, the District informed O’Brien about toxic gasses on the property.

Bridgestone knew O’Brien occupied the property but never independently informed him about the toxic gasses.

B. Litigation

On June 26, 2015, O’Brien sued Bridgestone, the District, and other entities. After several years of litigation, the “revised second amended complaint” is operative. In it, O’Brien alleges Bridgestone “deposited contaminants” on the property, including volatile organic compounds, while operating the site as a tire manufacturing facility.

1. Negligence

In his first cause of action, for negligence, O’Brien alleges that in “creating, maintaining, failing to remediate and allowing to remain as a contaminant the volatile organic compounds and other chemicals and materials at the property, [Bridgestone] failed to act reasonably for the safety and health of persons occupying the property, including Plaintiff.” O’Brien was exposed to the contaminants and harmed as a result, including suffering foreseeable severe emotional distress.

2. Fraudulent Concealment

In his second cause of action, for fraudulent concealment, O’Brien alleges Bridgestone knew of but intentionally failed to disclose to O’Brien the existence of contamination on the property, even though Bridgestone knew O’Brien occupied the property.

3. IIED

In his fourth cause of action, for IIED, O’Brien alleges Bridgestone knew that exposure to contamination on the property would result in illness to O’Brien but deliberately refused to take any remedial action or to advise O’Brien of the contamination, causing him severe emotional distress.

4. Negligence Per Se

In his fifth cause of action, for negligence per se, O’Brien alleges Bridgestone’s conduct violated Health and Safety Code section 41700, CERCLA (42 U.S.C. § 9601 et seq.), and applicable state laws and regulations designed to protect against injury to persons such as O’Brien.

C. Bridgestone’s Code of Civil Procedure Section 998 Offer

By 2018, it was apparent that the only pertinent air quality measurements for TCE were from 2012 air sampling reports acquired by O’Brien in 2016. These reports showed that airborne TCE levels on the property never exceeded 25 parts per million (ppm), a level that was generally considered safe when Bridgestone operated the property, and which never violated any regulatory recommendation.

On February 12, 2018, pursuant to Code of Civil Procedure section 998 (section 998), Bridgestone offered to settle the matter for a dismissal with a waiver of costs. O’Brien took no action on the offer, and it lapsed after 30 days.

D. Summary Judgment

1. Bridgestone’s First Motion--Causation

On December 1, 2017, Bridgestone moved for summary judgment or adjudication as to O’Brien’s then causes of action for strict liability, fraudulent concealment, and IIED, arguing that (1) O’Brien could not establish causation, (2) strict liability did not apply to Bridgestone’s manufacturing operations, and (3) the complaint contained no fraud or IIED allegations against Bridgestone. The trial court denied summary adjudication as to the causation issue, granted it as to O’Brien’s cause of action for strict liability, and deemed the motion as to the causes of action for fraud and IIED to be for judgment on the pleadings, which the court granted with leave to amend.

2. Bridgestone’s Current Motion

On February 15, 2019, O’Brien served his revised second amended complaint.

On March 6, 2020, Bridgestone again moved for summary judgment or adjudication, arguing it owed no cognizable duty to O’Brien, breached no duty pertaining to air quality, committed no acts of extreme or outrageous conduct, harbored no intent to cause O’Brien extreme emotional distress, and violated no air quality standard set forth in any of the statutes referenced in the complaint.

Bridgestone supported its motion exclusively with the December 17, 2019 deposition testimony of Nehls Betancourt, M.D., who had testified on behalf of O’Brien in opposition to Bridgestone’s first summary judgment motion.

According to Dr. Betancourt, the chemical that might have caused or contributed to O’Brien’s claimed ailments was airborne TCE. But Betancourt conceded that during the time Bridgestone owned the subject premises, presumably using products that contained TCE, concentrated doses of TCE were generally believed to be safe in the short term.

Dr. Betancourt further testified that any contamination by Bridgestone violated no workplace exposure standard at any time during O’Brien’s tenancy at the property, because pertinent OSHA regulations limited airborne TCE levels only to 100 ppm, whereas the airborne TCE levels on the property never exceeded 25 ppm.

Dr. Betancourt testified that years after Bridgestone owned the property, the National Institute of Occupational Safety and Health recommended an airborne TCE limit of 50 ppm, and the American Conference of Governmental Industrial Hygienists (ACGIH) recommended a limit of 25 ppm, both above the highest levels found on the property at any time. (In 2019, four years after Mr. O’Brien left the premises, the ACGIH lowered its recommended TCE standard to 10 ppm.) Dr. Betancourt acknowledged that these recommendations were “not . . . regulatory, but were merely recommendations.”

In sum, Dr. Betancourt’s testimony indicated that at no time did airborne TCE on the property exceed OSHA allowances or any other standard or recommendation.

3. O’Brien’s Opposition

In opposition to Bridgestone’s motion, O’Brien argued that

because Bridgestone submitted no evidence that it lacked knowledge of the dangerous properties of the volatile organic compounds and other toxic chemicals that it had dumped on the property, Bridgestone’s evidence necessitated no response.

However, O’Brien offered no evidence that the property failed to comply with any OSHA air quality regulation or other industry standard at any time during or after Bridgestone’s ownership or while O’Brien occupied the premises. O’Brien argued that measurements of TCE taken from underground soil vapor samples violated OSHA standards, but submitted no evidence that elevated soil vapor levels translated to the elevated airborne TCE levels that caused his injury. O’Brien raised no evidentiary objections to any of Bridgestone’s evidence.

4. Ruling

The trial court found no triable issue existed as to Bridgestone’s: (1) ongoing duty to warn or remediate; (2) nondisclosure of the contamination; (3) extreme and outrageous conduct or intention to cause severe emotional distress; or (4) violation of any pertinent statute or regulation. Accordingly, the court granted Bridgestone’s motion for summary judgment.

O’Brien appeals from this ruling.

E. Motion to Tax Costs

After entry of Judgment, Bridgestone filed a memorandum seeking $24,910 in expert fees as an item of costs pursuant to section 998. O’Brien filed a motion to tax costs, contending Bridgestone’s section 998 offer, made on February 12, 2018, just prior to the hearing on Bridgestone’s first summary judgment motion, was invalid because it merely offered to waive costs without any payment, which O’Brien could not have reasonably accepted.

On March 26, 2021, the trial court denied O’Brien’s motion in part, and awarded Bridgestone expert fees in the amount of $43,598.95.

O’Brien separately appeals from that order. We consolidated the appeals.

DISCUSSION

O’Brien contends summary judgment was improper because triable issues exist as to whether Bridgestone owed O’Brien duties of care and breached those duties. O’Brien further contends the trial court erred in denying his motion to tax costs because Bridgestone’s section 998 offer was legally ineffective.

I. SUMMARY JUDGMENT

A. Legal Principles

As noted above, O’Brien alleges causes of action for negligence, negligence per se, fraudulent concealment, and IIED. On appeal, however, O’Brien raises no argument concerning his cause of action for negligence per se. We therefore deem to be forfeited his appeal of the court’s granting summary adjudication on that cause of action.

1. A Tire Manufacturer’s Ongoing Duties

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.] Premises liability ‘ “is grounded in the possession of the premises and the attendant right to control and manage the premises” ’; accordingly, ‘ “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” ’ [Citation.] But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases. (Rowland[ v. Christian (1968) 69 Cal.2d 108,] 119 [‘The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others. . . .’]; [citation].) In determining whether a premises owner owes a duty to persons on its property, we apply the Rowland factors.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158-1159.)

2. Fraudulent Concealment

The elements of fraud are “ ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613; see also Civ. Code, § 1709 [“One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers”]; Civ. Code, § 1710 [“A deceit, within the meaning of the last section, is . . . [¶] . . . [¶] [t]he suppression of a fact, by one who is bound to disclose it . . . .”].)

3. IIED

“ ‘The elements of the tort of intentional infliction of emotional distress are: “ ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. . . .’ Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” [Citation.] The defendant must have engaged in “conduct intended to inflict injury or engaged in with the realization that injury will result.” ’ ” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001 (Potter).) A polluter may be held liable for IIED to a downstream property user at whom the extreme or outrageous conduct is directed or of whom the polluter is aware. (Id. at p. 1003.)

4. Summary Judgment

A trial court properly grants summary judgment “ ‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).) A defendant may establish its right to summary judgment by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)” (Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 967.) “Once the moving defendant has satisfied its burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to each cause of action. [Citation.] A triable issue of material fact exists where ‘the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Ibid.)

On appeal, we apply an independent standard of review to determine whether a trial court is required—whether the evidence favoring and opposing the summary judgment motion would support a reasonable trier of fact’s determination in the plaintiff’s favor on the cause of action or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) In doing so we view the evidence in the light most favorable to the party opposing summary judgment. (Id. at p. 843; Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.) We accept as true the facts shown by the evidence offered in opposition to summary judgment and the reasonable inferences that can be drawn from them. (Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385-1386.)

B. Application

1. Bridgestone Failed to Carry Its Burden With Respect to Duty Sounding in Negligence

O’Brien argues the trial court erroneously granted summary adjudication on the issue of duty with respect to his cause of action for negligence. We agree.

In Potter, Firestone dumped toxic chemicals, including TCE, into a “class I” landfill owned by a third party, in violation of a state requirement that the waste materials involved be disposed only in a “class II” landfill. (Potter, supra, 6 Cal.4th at p. 976.) Our Supreme Court held that a tire manufacturer has “a duty imposed on it by law and regulation to dispose of [certain] toxic waste only in a class I landfill . . . .” (Id. at p. 985.)

Here, the same manufacturer disposed of the same toxic waste onto its own property, not into a landfill of any kind. Pursuant to Potter, to do so violated a duty running to subsequent users of the property. The trial court erred in concluding otherwise.

Bridgestone attempts to distinguish Potter on the ground that there, it deliberately dumped toxic waste onto someone else’s property, whereas here it was alleged to have only “deposited” onto its own property only an incidental byproduct of a lawful use of the property. Bridgestone argues that “[t]he accumulation of toxins during operations on one’s own property is an entirely different thing than illegal ‘dumping’ of toxic waste materials on the property of another.”

We disagree. Whether Bridgestone “dumped” or “deposited” the toxic chemicals, whether onto its own or another’s property, whether concomitant to an incidental byproduct of property use or not, it owed duty to subsequent users not to do so. It makes no difference that it “deposited” the toxins on its own land if that land was not a proper landfill.

Bridgestone argues there is no evidence as to when or how the contamination occurred; whether it occurred due to any breach of contract, violation of law, regulation, or company policy; or whether it knew of the contamination; and “no evidence that anything that [Bridgestone] has done was negligent.”

That is correct but this is summary judgment, and O’Brien was required to establish a triable issue of material fact only as to those matters put in issue by Bridgestone’s motion. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 853.) In its motion, Bridgestone relied exclusively on the testimony of Dr. Betancourt pertaining to airborne TCE regulations and levels. The cited testimony pertained only to O’Brien’s cause of action for negligence per se, which O’Brien declines to defend on appeal. Bridgestone did not cite Dr. Betancourt for his opinion on Firestone’s operations or on whether the company knowingly violated environmental exposure rules. Bridgestone’s lack of an initial showing on these matters required no response from O’Brien.

2. Bridgestone Failed to Carry Its Burden With Respect to the Standard of Care

O’Brien argues the trial court erroneously granted summary adjudication on the issue of breach of the standard of care. We agree.

The trial court found that no triable issue existed as to whether Firestone knew that the chemicals that it was depositing on its property were dangerous.

But again, the only evidence Bridgestone offered in support of its summary judgment motion was Dr. Betancourt’s testimony, who offered no opinion about Firestone’s knowledge of the toxicity of the chemicals it deposited. Bridgestone adduced no evidence that Firestone was unaware the chemicals were toxic.

Bridgestone argues that when Firestone manufactured tires on the property it knew nothing about the toxicity of airborne TCE. The argument is both unsupported by evidence and irrelevant to whether Firestone breached a duty not to deposit toxic chemicals on its property. The issue is whether Firestone knew that the chemicals it was depositing on its property were toxic, not whether it could anticipate the toxicity of whatever “ ‘daughter’ chemicals” might result. (Potter, supra, 6 Cal.4th at p. 977.)

Bridgestone argues that the degree of contamination was not harmful because TCE levels never exceeded 25 ppm. While it is true that no evidence suggests TCE levels ever exceeded this concentration at any one time, and further that these levels were within OSHA guidelines, as pertinent here, this again goes only to O’Brien’s cause of action for negligence per se. Bridgestone offered no evidence that 20 of O’Brien’s years of exposure to (OSHA-approved) levels of airborne TCE was in fact harmless.

The burden never shifted to O’Brien to establish a triable issue of material fact as to Bridgestone’s violation of the standard of care, and summary adjudication was improperly granted on this basis.

3. Summary Adjudication as to Fraudulent Concealment was Proper

O’Brien argues the trial court erred in granting summary adjudication on his cause of action for fraudulent concealment. We disagree.

As noted above, to be liable for fraudulent concealment the defendant “must have been under a duty to disclose.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp., supra, 6 Cal.App.4th at pp. 612-613; see also Civ. Code, § 1710 [“A deceit . . . is . . . [¶] . . . [¶] [t]he suppression of a fact, by one who is bound to disclose it . . . .”].) O’Brien has never identified the source of Bridgestone’s alleged duty to disclose the fact of Firestone’s pollution and its effects to tenants of the property’s subsequent owners, and we have discovered none.

O’Brien argues that “the situation presented by this case is fairly unique,” and contends that “a polluter, actively engaged in clean up and remediation efforts of property it polluted, ha[s] a legal duty to disclose to an occupant that the property is polluted and dangerous.” We disagree.

First, active pollution remediation efforts are hardly unique. On the contrary, such efforts are widespread and subject to a forest of environmental laws, regulations and caselaw—Potter, for example, involved the same polluter and chemicals—none of which obligates a polluter to disclose the pollution to a property owner’s tenants or visitors.

Therefore, lack of authority on duty to warn downstream parties can hardly be attributed to insufficiently developed environmental law.

Nor should a polluter be held to a higher standard simply because it becomes aware of downstream parties as a result of its remediation efforts. A polluter engaged in remediation is entitled to rely on governing laws, regulations, and agreements to define its responsibilities. Were it not so, those responsibilities would drift with changing third party landlord/tenant/visitor relations, obligating the remediator to keep apprised of and adapt to those relations. Such an obligation, which is best handled by the landlord anyway, would inject uncertainty into and dilute remediation efforts, dissuade polluters from sua sponte remediation, and interfere with landlord/tenant/visitor relations. Warner Construction Corporation v. City of Los Angeles (1970) 2 Cal.3d 285, upon which O’Brien relies, is not to the contrary. There, our Supreme Court held that “a cause of action for non-disclosure of material facts may arise [where] . . . the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff.” (Id. at p. 294, fn. omitted.) But the plaintiff and defendant in Warner were contracting parties, and the three cases upon which Warner relied for its holding involved parties to purchase agreements. (See Lingsch v. Savage (1963) 213 Cal.App.2d 729, 735 [“where the seller knows of facts materially affecting the value or desirability of the property which are known or accessible only to him and also knows that such facts are not known to, or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer”]; Sime v. Malouf (1949) 95 Cal.App.2d 82, 99 [“The intentional and systematic concealment by the [buyers] of highly material facts, which were peculiarly within their knowledge and which [the seller] did not suspect and could not have discovered, was fraudulent”]; Barder v. McClung (1949) 93 Cal.App.2d 692, 697

[“ ‘where material facts are accessible to the vendor only and he knows them not to be within the reach of the diligent attention and observation of the vendee, the vendor is bound to disclose such facts to the vendee’ ”].) Warner does not stand for the proposition that outside some fiduciary, confidential, or transactional relationship, a polluter owes a duty of disclosure running to downstream tenants.

4. Summary Adjudication as to IIED was Proper

O’Brien argues the trial court erred in granting summary adjudication on his cause of action for IIED. We disagree.

For liability to arise for IIED, “ ‘it is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.’ ” (Potter, supra, 6 Cal.4th at p. 1002.)

Here, it is undisputed that Firestone was never aware of O’Brien, that Bridgestone’s only alleged conduct directed at him was its failure to disclose airborne TCE, and that its only conduct in O’Brien’s (arguable) presence comprised testing and remediation efforts.

Even if Firestone realized that its misconduct was almost certain to cause severe emotional distress to anyone who might foreseeably discover the facts, this would not satisfy the knowledge requirement for IIED “because knowledge of th[is] particular plaintiff[] is lacking.” (Potter, supra, 6 Cal.4th at p. 1003.) And because Bridgestone owed no duty of disclosure to O’Brien (as discussed above), failure to disclose can be neither extreme nor outrageous. Nor are testing or remediation efforts of themselves either extreme or outrageous. Therefore, no triable issue exists as to O’Brien’s cause of action for IIED, and summary adjudication of that cause of action was proper.

II. SECTION 998

Because we conclude that summary judgment was improper, the trial court’s order awarding Bridgestone costs (and denying O’Brien’s motion to tax costs) must be vacated.

DISPOSITION

The judgment is reversed as to O’Brien’s cause of action for negligence but otherwise affirmed. The order denying O’Brien’s motion to tax costs is vacated. Appellant is awarded his costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.