1
2
3
4
5
6
7
LATHAM & WATKINS LLP
Jon D. Anderson (SBN 75694)
Nicole R. Vanderlaan Smith (SBN 239774)
Jennifer E. Reass (SBN )
650 Town Center Drive, 20th Floor
Costa Mesa, California 92626-1925
Telephone: (714) 540-1235
Facsimile: (714) 755-8290
Email:
jon.anderson@lw.com
nicole.vanderlaan.smith@lw.com
jennifer.reass@lw.com
Attorneys for Defendant
CONOCOPHILLIPS COMPANY
8
9
10
SUPERIOR COURT OF CALIFORNIA
11
COUNTY OF SANTA CLARA
12
13
GREAT OAKS WATER COMPANY,
14
15
16
17
Plaintiff,
Case No.: 1-07-CV-079405
Assigned to the Honorable James P. Kleinberg,
Department 1
v.
USA PETROLEUM CORPORATION; USA
GASOLINE CORPORATION; and DOES 1
though 1000, inclusive,
18
Defendants.
19
20
[PROPOSED] ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY
ADJUDICATION BASED ON NO
APPRECIABLE HARM OR, IN THE
ALTERNATIVE, RENEWED MOTION FOR
SUMMARY ADJUDICATION BASED ON
STATUTE OF LIMITATIONS, OR IN THE
ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION BASED ON
DUPLICATIVE RELIEF
21
22
Date:
Time:
Location:
May 11, 2012
9:00 a.m.
Dept. 1
Complaint Filed:
Trial Date:
February 2, 2007
June 18, 2012
23
24
25
26
27
28
OC\1241035
ATTORNEYS AT LAW
ORANGE COUNT Y
[PROPOSED] ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY ADJUDICATION BASED ON
NO APPRECIABLE HARM, OR STATUTE OF
LIMITATIONS, OR DUPLICATIVE RELIEF
1
On May 11, 2012, this Court, the Honorable James P. Kleinberg presiding, heard
2
Defendants’1 Motion for Summary Adjudication of Plaintiff Great Oaks Water Company’s
3
(“Plaintiff”) claims based on no appreciable harm or, in the alternative, renewed Motion for
4
Summary Adjudication based on statute of limitations, or, in the alternative, Motion for
5
Summary Adjudication based on duplicative relief (“Motion”). Appearances were noted on the
6
record.
7
After full consideration of the papers submitted in support of and in opposition to
8
the Motion, the evidence, and the argument of counsel, IT IS HEREBY ORDERED:
9
The Defendants’ Motion is GRANTED because the Court finds that there is no triable issue of
10
material fact as to the following causes of action:
11
1.
The undisputed material facts establish that Plaintiff has not suffered
12
actual and appreciable harm. Neither methyl tertiary butyl ether (“MTBE”) nor tertiary butyl
13
alcohol (“TBA”) was ever detected in Well No. 16. Accordingly, Plaintiff’s claims for strict
14
liability, negligence, nuisance, and declaratory relief are dismissed as to all Defendants.
15
Plaintiff’s claim for trespass is dismissed as to the USA Parties.
16
OR, ALTERNATIVELY, THAT:
17
2.
The undisputed material facts establish that Plaintiff’s claim for strict
18
liability against the Distributor Defendants and USA Gasoline, which began running on July 7,
19
2003 and expired before the Complaint was filed on February 2, 2007, is time-barred by the
20
three-year statute of limitations set forth in California Code of Civil Procedure section 338(b).
21
Further, the undisputed material facts establish that Plaintiff’s second cause of action for
22
23
24
25
26
27
1
As used herein, the term “the Distributor Defendants” refers to Tesoro Corporation and
Tesoro Refining and Marketing Company (collectively, “Tesoro”), Valero Marketing and
Supply Company, Valero Refining Company-California, Ultramar Inc., ConocoPhillips
Company, and New West Petroleum and New West Petroleum, LLC (collectively, “New
West”). As used herein, the term “The USA Parties” refers to USA Petroleum Corporation,
now known as Dansk Investment Group, Inc., and USA Gasoline Corporation (“USA
Gasoline”), now known as Moller Investment Group, Inc. The term “Defendants” refers
collectively to the Distributor Defendants and the USA Parties.
28
2
OC\1241035
ATTORNEYS AT LAW
ORANGE COUNT Y
[PROPOSED] ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY ADJUDICATION BASED
ON NO APPRECIABLE HARM, OR STATUTE OF
LIMITATIONS, OR DUPLICATIVE RELIEF
1
negligence against the Distributor Defendants and USA Gasoline, which began running on July
2
7, 2003 and expired before the Complaint was filed on February 2, 2007, is time-barred by the
3
three-year statute of limitations set forth in California Code of Civil Procedure section 338(b).
4
Further, the undisputed material facts establish that Plaintiff’s fifth cause of action for
5
declaratory relief against the Distributor Defendants and USA Gasoline, which began running on
6
July 7, 2003 and expired before the Complaint was filed on February 2, 2007, is time-barred
7
because the underlying claims (i.e., strict liability and negligence) are time-barred by the three-
8
year statute of limitations set forth in California Code of Civil Procedure section 338(b). See
9
Mangini v. Aerojet-Gen. Corp., 230 Cal. App. 3d 1125, 1155 (1991) (the statute of limitations
10
governing a request for declaratory relief is the one applicable to an ordinary legal or equitable
11
action based on the same claim).
12
OR, ALTERNATIVELY, THAT:
13
3.
Plaintiff’s cause of action for declaratory relief is dismissed as to all
14
Defendants because that cause of action is duplicative of the other relief sought by Plaintiff in
15
this case. In Re MTBE Products Liability Litig., 457 F. Supp. 2d 455, 466 (S.D.N.Y. 2006).
16
17
IT IS SO ORDERED.
18
19
Dated: _________, 2012
20
21
22
23
____________________________________
Hon. James P. Kleinberg
Judge of the Superior Court
Submitted by:
Dated: February 24, 2012
LATHAM & WATKINS LLP
24
25
By:
Jon D. Anderson
Attorneys for ConocoPhillips Company
26
27
28
3
OC\1241035
ATTORNEYS AT LAW
ORANGE COUNT Y
[PROPOSED] ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY ADJUDICATION BASED
ON NO APPRECIABLE HARM, OR STATUTE OF
LIMITATIONS, OR DUPLICATIVE RELIEF
1
Dated: February 24, 2012
BINGHAM McCUTCHEN LLP
2
By:
3
Jill C. Teraoka
Attorneys for Tesoro Corporation and Tesoro
Refining and Marketing Company
4
5
6
Dated: February 24, 2012
BRACEWELL & GIULIANI LLP
7
8
By:
M. Coy Connelly
Amy E. Parker
Attorneys for Ultramar Inc., Valero Marketing
and Supply Company, and Valero Refining
Company-California
9
10
11
12
13
Dated: February 24, 2012
DOWNEY BRAND LLP
14
By:
15
Stephen J. Meyer
Jennifer Hartman King
Attorneys for New West Petroleum and New
West Petroleum, LLC
16
17
18
19
Dated: February 24, 2012
MANATT, PHELPS & PHILLIPS, LLP
20
By:
21
Craig de Recat
Peter Duchesneau
Attorneys for USA Petroleum Corporation and
USA Gasoline Corporation
22
23
24
25
26
27
28
4
OC\1241035
ATTORNEYS AT LAW
ORANGE COUNT Y
[PROPOSED] ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY ADJUDICATION BASED
ON NO APPRECIABLE HARM, OR STATUTE OF
LIMITATIONS, OR DUPLICATIVE RELIEF