No. S203735
(Court of Appeal No. H038014)
(Santa Clara County Superior Ct. No. 1-00-CV-788657) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
ATLANTIC RICHFIELD COMPANY, CONAGRA GROCERY PRODUCTS CO., E.I. DU PONT DE NEMOURS AND CO., NL INDUSTRIES, INC.,
AND THE SHERWIN-WILLIAMS COMPANY
Petitioners,
v.
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SANTA CLARA,
Respondent,
THE PEOPLE OF THE STATE OF CALIFORNIA, ET AL.
Real Parties in Interest.
ANSWER TO PETITION FOR REVIEW
OFFICE OF THE COUNTY COUNSEL
COUNTY OF SANTA CLARA LORI E. PEGG (SBN 129073) GRETA S. HANSEN
(SBN 251471)
JENNY S. LAM (SBN 259819) 70 West Hedding Street
East Wing, 9th Floor San Jose, CA 95110
Telephone: (408) 299-5900 Facsimile: (408) 292-7240
Attorneys for Real Parties in
Interest The People of the State of
California
COTCHETT, PITRE & McCARTHY, LLP NANCY L. FINEMAN (SBN 124870) ARON K. LIANG (SBN 228936) BRIAN M. SCHNARR (SBN 275587)
840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
Attorneys for Real Parties in Interest
The People of the State of California
SAN FRANCISCO CITY ATTORNEY
Dennis J. Herrera (SBN 139669) City Attorney
Owen J. Clements (SBN 141805) Chief of Special Litigation Erin Bernstein (SBN 231539) Deputy City Attorney
1390 Market Street, Sixth Floor San Francisco, CA 94102 Telephone: (415) 554-3800 Facsimile: (415) 554-3837
Attorneys for Real Parties in Interest The People of the State of California
MARY ALEXANDER & ASSOCIATES
Mary Alexander (SBN 104173) Jennifer L. Fiore (SBN 203618) Sophia Aslami (SBN 262712) 44 Montgomery Street, Suite 1303 San Francisco, CA 94104
Tel: (415) 433-4440 Fax: (415) 433-5440
Attorneys for Real Parties in Interest The People of the State of California
OFFICE OF THE COUNTY COUNSEL ALAMEDA COUNTY
Donna R. Ziegler, County Counsel (SBN 142415)) Andrew Massey, Deputy County Counsel (SBN 240995)
1221 Oak Street, Ste 450 Oakland, CA 94612-4296 Telephone: (510) 272-6700 Facsimile: (510) 272-5020
Attorneys for Real Parties in Interest The People of the State of California
LOS ANGELES COUNTY COUNSEL John F. Krattli (SBN 82149) County Counsel Richard K. Mason (SBN 55055) Robert E. Ragland (SBN 175357) Andrea Ross (SBN 179398) Principal Deputy County Counsel 500 West Temple St, Suite 648 Los Angeles, CA 90012
Tel: (213) 974-1928 Fax: (213) 680-2165
Attorneys for Real Parties in Interest The People of the State of California
OFFICE OF THE COUNTY COUNSEL COUNTY OF MONTEREY
Charles J. McKee, County Counsel (SBN 152458) William M. Litt, Deputy County Counsel (SBN 166614)
168 West Alisal Street 3rd Floor Salinas, CA 93901
Telephone: (831) 755-5045 Facsimile: (831) 755-5283
Attorneys for Real Parties in Interest The People of the State of California
OAKLAND CITY ATTORNEY
Barbara Parker, City Attorney (SBN 69722) William E. Simmons (SBN 121266)
One Frank H. Ogawa Plaza, 6 th Floor Oakland, California 94612
Telephone: (510) 238-3601 Facsimile: (510) 238-6500
Attorneys for Real Parties in Interest The People of the State of California
OFFICE OF THE CITY ATTORNEY CITY OF SAN DIEGO
Jan I. Goldsmith, City Attorney (SBN 70988)
Daniel F. Bamberg, Chief Deputy City Attorney (SBN 60499) Paul F. Prather, Deputy City Attorney (SBN 252985)
1200 Third Avenue # 1100 San Diego, CA 92101 Telephone: (619) 236-6220 Facsimile: (619) 236-7215
OFFICE OF THE COUNTY COUNSEL COUNTY OF SAN MATEO
John C. Biers, County Counsel (SBN 144282)
Rebecca M. Archer, Deputy County Counsel (SBN 202743) 400 County Center Sixth Floor
Redwood City, CA 94063 Telephone: (650) 363-4760 Facsimile: (650) 363-4034
Attorneys for Real Parties in Interest The People of the State of California
OFFICE OF THE COUNTY COUNSEL SOLANO COUNTY
Dennis Bunting, County Counsel (SBN 55499) 675 Texas Street, Ste 6600
Fairfield, CA 94533
Telephone: (707) 784-6140 Facsimile: (707) 784-6862
Attorneys for Real Parties in Interest The People of the State of California
OFFICE OF THE COUNTY COUNSEL COUNTY OF VENTURA
Leroy Smith, County Counsel (SBN 107702)
Eric Walts, Assistant County Counsel (SBN 233042) 800 S. Victoria Avenue L/C #1830
Ventura, CA 93009
Telephone: (805)654-2580 Facsimile: (805)654-2185
O
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS CAL. R. CT. 8.208
Since all Plaintiffs are governmental entities, there are no interested entities or parties to list in this Certificate per California Rules of Court, Rule 8.208(d).
I declare under penalty of perjury under California law that the foregoing is true and correct.
Dated: July 23, 2012
TABLE OF CONTENTS
Page(s)
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
INTRODUCTION AND SYNOPSIS OF ARGUMENT 1
BACKGROUND 2
LEGAL DISCUSSION 2
CONCLUSION 6
TABLE OF AUTHORITIES
Page(s) CASES
People ex rel. Sorenson v. Randolph
(1979) 99 Cal. App. 3d 183 5
People v. Bhakta
(2008) 162 Cal.App.4th 973 3, 5People v. Englebrecht
(2001) 88 Cal.App.4th 1236 3, 5People v. Frangadakis
(1960) 184 Cal.App.2d 540 3, 5People v. One 1941 Chevrolet Coupe
(1951) 37 Cal.2d 283 4
Schneider v. Schneider
(1947) 82 Cal.App.2d 860 4
Wolford v. Thomas
(1987) 190 Cal.App.3d 347 3, 5
STATUTES AND RULES California Rules of Court
Rule 8.500(b) 3
Rule 8.500(b)(1) 3
Code of Civil Procedure
OTHER AUTHORITIES
9 Witkin
California Procedure
Appeal§ 515 (5th ed. 2010) 6
INTRODUCTION AND SYNOPSIS OF ARGUMENT
This Answer to Petition for Relief ("Answer") is being submitted by the People of the State of California, acting by and through Acting Santa Clara County Counsel Lori E. Pegg; San Francisco City Attorney Dennis Herrera; Alameda County Counsel Donna R. Ziegler; Los Angeles County Counsel John F. Krattli; Monterey County Counsel Charles McKee; Oakland City Attorney Barbara Parker; San Diego City Attorney Jan Goldsmith; San Mateo County Counsel John C. Beiers; Solano County Counsel Dennis Bunting; and Ventura County Counsel Leroy Smith (collectively referred to as the "People")) The People request that the Court summarily deny the Petition for Review filed on July 3, 2012 by Petitioners and Defendants Atlantic Richfield Co.; Conagra Grocery Products Co.; E.I. Du Pont de Nemours and Co.; NL Industries, Inc.; and the Sherwin-Williams Co ("Petitioners") because the Petition does not rise to the standard for review which is required under Rule of Court 8.500(b).
The action is brought in the name of the People of the State of California by the City Attorneys and County Counsels of the ten public entities listed above pursuant to Code of Civil Procedure section 731.
BACKGROUND
Pursuant to an opinion issued by the Court of Appeal, the People's only claim in this action is for abatement of a public nuisance; there is no claim for damages. (See County of Santa Clara v. Atlantic Richfield Co. (2006)137 Cal.App.4th 292, 310-311.) Accordingly, the People allege that Petitioners, who are former manufacturers, distributors, or promoters of lead-based paint and coatings (hereinafter "Lead"), concealed the dangers of Lead to the public, mounted a campaign against the regulation of Lead, and promoted Lead for both interior and exterior use. (See The People's Fourth Amended Complaint, 4.) As a result of Petitioners' conduct, there now exists a widespread presence of lead-based paint in homes throughout the State of California, including homes located within the jurisdictions of the ten public entities whose prosecutorial agencies have brought this representative cause of action. (See id. at 7194-96.) The People allege this condition amounts to a public nuisance under Code of Civil Procedure 0 section 731, and seek purely equitable relief in the form of abatement.
LEGAL DISCUSSION
The Supreme Court may order review of a Court of Appeal decision when "(1) necessary to secure uniformity of decision or to settle an
important question of law; (2) [w]hen the Court of Appeal lacked jurisdiction; (3) [w]hen the Court of Appeal decision lacked the
concurrence of sufficient qualified justices; (4) [f]oror the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order." (California Rules of Court, Rule 8.500(b).) Here, the Petition for Review fails to meet any of the standards proscribed by Rule 8.500(b), and thus a grant of review should be denied.2
Under well-established case law, there is no right to a jury trial for a purely equitable cause of action.
(See Wolford v. Thomas
(1987) 190 Cal.App.3d 347, 353 ["California courts recognize that a party is not entitled to a jury trial in an action to abate a nuisance."] [citations omitted];see also People v. Bhakta
(2008) 162 Cal.App.4th 973;People v.
Frangadakis
(1960) 184 Cal.App.2d 540, 545 [holding that because an action to abate a public nuisance did not exist at common law, there was no right to a jury trial in such an action in 1850];People v. Englebrecht
(2001) 88 Cal.App.4th 1236 [no right to jury trial in proceeding to abate street gang activity as a public nuisance].) As set forth in the People's moving papers submitted to the trial court, these cases have served as precedent in California for over 50 years. The fact that these authorities have withstood the test of time and have not been overruled in over five decades suggests2
The Petition for Review does not address the grounds for review set forth under California Rule of Court, Rule 8.500(b), and the People presume that only Rule 8.500(b)(1) is implicated by the arguments made therein.
that Petitioners' analysis is incorrect, rather than that these well-established cases were wrongly decided.
(See Schneider v. Schneider
(1947) 82 Cal.App.2d 860, 862 ["The rule announced in these cases has never been overruled and is binding upon this court. The mere fact that it has not been questioned in over 63 years is cogent evidence of its soundness andrecognition by the legal profession in this state."].) In fact, Petitioners cannot establish that an inconsistency in the law exists where a claimant presents a purely equitable cause of action for a public nuisance.
Consequently, there are no grounds for review on this issue.
In applying this settled precedent, the issue of whether a jury was required in this case was correctly decided by both the Hon. James P. Kleinberg of the Santa Clara County Superior Court—which properly struck Petitioners' jury demands—and the Sixth Appellate District—which denied Petitioners' Petition for Writ of Prohibition or Other Appropriate Relief. In issuing its decision, the trial court relied on the Supreme Court's opinion in
People v. One 1941 Chevrolet Coupe
(1951) 37 Ca1.2d 283, 298, which stated unequivocally: "The right to trial by jury did not exist atEl common law in a suit to abate a public nuisance. [Citation.] Hence it is not
a constitutional right now." (Appendix, Exhibit Z, 111:475 (Order After Hearing of February 6, 2012).) Indeed, California courts have consistently denied parties a jury trial in a public nuisance action where the only remedy
sought is abatement.
(See e.g. People v. Bhakta
(2008) 162 Cal.App.4th 973, 978 ["An action to abate a public nuisance did not exist at common law, and therefore there was no right to a jury trial in such an action in1849. For this reason, it is not a constitutional right now. (Citation.)"];
People v. Englebrecht
(2001) 88 Cal.App.4th 1236 [no right to jury trial in proceeding to abate street gang activity as a public nuisance];Wolford v.
Thomas
(1987) 190 Cal.App.3d 347, 353 ["California courts recognize that a party is not entitled to a jury trial in an action to abate a nuisance."];People ex rel. Sorenson v. Randolph
(1979) 99 Cal. App. 3d 183, 189 [denying jury trial in action to abate a public nuisance];People v.
Frangadakis
(1960) 184 Cal.App.2d 540, 545 [holding that because an action to abate a public nuisance did not exist at common law, there was no right to a jury trial].)Petitioners' invitation to disturb this long line of precedent based upon their contention that these cases were all wrongly decided should be declined. Petitioners ignore the fundamental concept of established precedent. As explained by Witkin: "The long acceptance of a rule by the courts, as where it is followed in other cases, and by the legal profession and the public generally in governing their conduct and relations is a potent argument in favor of allowing it to stand. Although this factor is
statutory provisions, it is also important in cases dealing with other types of questions. The principal reason for following a settled rule is the
desirability of certainty in the law, . . ." (9 Witkin
California Procedure
Appeal § 515 (5th ed. 2010).) Petitioners do not demonstrate why this case warrants a change in the law.CONCLUSION
Accordingly, this case does not present an issue that warrants review and the People respectfully request that this Court summarily deny the Petition.
Dated: July 23, 2012 COTCHETT, PITRE & McCARTHY, LLP
By: \ 7
...---/
, . <
NA
qt.
FINEMANAttorneys for Real Parties in Interest The
People of the State of California
CERTIFICATE OF WORD COUNT (Cal. Rules of Court, Rule 14(c)(1))
The text of this Answer consists of 1,256 words as counted by Word Perfect processing program used to generate this Answer.
Dated: July 23, 2012
co4
1VC\ TT, PITRE & 1V,JcCA 2THY, LLPBy: \,
NA FINEIMAN
Attorneys for Real Parties in Interest The
People of the State of California
PROOF OF SERVICE
I am employed in San Mateo County, which is where service of the document(s) referred to below occurred. I am over the age of 18 and not a party to the within action. My business address is Cotchett, Pitre &
McCarthy, LLP, 840 Malcolm Road, Suite 200, Burlingame, California 94010. I am readily familiar with this firm's practices for the service of documents. On this date, I served or caused to be served a true copy of the following document(s) in the manner listed below:
ANSWER TO PETITION FOR REVIEW
3 BY MAIL: I caused the sealed envelope containing the
aforementioned document(s) to be deposited with the United States Postal Service on that same day in the ordinary course of business.
[SEE ATTACHED SERVICE LIST]
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Burlingame, California, on July 23, 2012
JoAnne Lein
SERVICE LIST
Jerome B. Falk, Jr.
ARNOLD & PORTER, LLP Three Ernbarcadero Center, 7 th Floor San Francisco, CA 94111 Tel: (415) 471-3100 Fax: (415) 471-3400 [email protected] ATTORNEYS FOR DEFENDANT ATLANTIC RICHFIELD COMPANY Sean Morris
ARNOLD & PORTER
777 South Figueroa Street, 44th Floor Los Angeles, CA 90017-5844 Tel: (213) 243-4000 Fax: (213) 243-4199 [email protected] ATTORNEYS FOR DEFENDANT ATLANTIC RICHFIELD COMPANY James McManis William Faulkner McMANIS FAULKNER
50 W. San Fernando Street, 10th Floor San Jose, CA 95113 Tel: (408) 279-8700 Fax: (408) 279-3244 [email protected] [email protected] ATTORNEYS FOR DEFENDANT NL INDUSTRIES, INC. Allen J. Ruby
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 525 University Ave., Suite 1100 Palo Alto, CA 94301 Tel: 650-470-4500 Fax: 650-470-4570 [email protected] ATTORNEYS FOR DEFENDANT CONAGRA GROCERY PRODUCTS COMPANY
Clement L. Glynn
GLYNN & FINLEY LLP 100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596 Tel: (925) 210-2800 Fax: (925) 945-1975 [email protected]
ATTORNEYS FOR
DEFENDANT E.I. DU PONT E NEMOURS AND
COMPANY
Steven R. Williams
McGUIRE WOODS LLP One James Center
901 East Cary Street Richmond, Virginia 23219 Tel: (804) 775-1000 Fax: (804) 775-1061
ATTORNEYS FOR
DEFENDANT E.I. DU PONT DE NEMOURS AND
COMPANY
Donald T. Scott
BARTLIT, BECK, HERMAN, PALENCHAR & SCOTT
1899 Wynkoop Street, Suite 800 Denver, CO 80202 Tel: (303) 592-3100 Fax: (303) 592-3140 [email protected] ATTORNEYS FOR DEFENDANT NL INDUSTRIES, INC. Timothy Hardy 300 West 1 lth Avenue, #8B Denver, CO 80204 Tel: (303) 303-1279 [email protected] ATTORNEYS FOR DEFENDANT NL INDUSTRIES, INC. Robert A. Mittelstaedt JONES DAY
555 California Street, 26 th Floor San Francisco, CA 94104 Tel: 415-626-3939 Fax: 415-875-5700
ATTORNEYS FOR DEFENDANT
THE SHERWIN WILLIAMS COMPANY
John W. Edwards, II JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Tel: (650) 739 3912 Fax: (650) 739 3900 [email protected] ATTORNEYS FOR DEFENDANT
THE SHERWIN WILLIAMS COMPANY
Donna R. Ziegler County Counsel Andrew Massey
Deputy County Counsel ALAMEDA COUNTY OFFICE OF THE COUNTY COUNSEL
1221 Oak Street, Suite 450 Oakland, CA 94612-4296 Tel: (510) 272-6700 Fax: (510) 272-5020
OFFICE OF THE COUNTY COUNSEL
COUNTY OF ALAMEDA
John F. Krattli County Counsel Robert E. Ragland
Principal Deputy County Counsel Andrea Ross
Senior Deputy County Counsel LOS ANGELES COUNTY COUNSEL
500 West Temple St, Suite 648 Los Angeles, CA 90012
Tel: (213) 974-1811 Fax: (213) 626-7446
[email protected] [email protected]
LOS ANGELES COUNTY COUNSEL
COUNTY OF LOS ANGELES
Charles J. McKee County Counsel William M. Litt
Deputy County Counsel OFFICE OF THE COUNTY COUNSEL
COUNTY OF MONTEREY 168 West Alisal Street 3rd Floor Salinas, CA 93901
Tel: (831) 755-5045 Fax: (831) 755-5283
OFFICE OF THE COUNTY COUNSEL
COUNTY OF MONTEREY
Barbara Parker City Attorney William Simmons
OAKLAND CITY ATTORNEY One Frank H. Ogawa Plaza
6th Floor Oakland, CA 94612 Tel: (510) 238-6520 Fax: (510) 238-6500 [email protected] OAKLAND CITY ATTORNEY CITY OF OAKLAND Jan Goldsmith City Attorney Daniel F. Bamberg
Chief Deputy City Attorney
Paul Prather, Deputy City Attorney OFFICE OF THE SAN DIEGO CITY ATTORNEY
CITY OF SAN DIEGO 1200 Third Avenue # 1100 San Diego, CA 92101 Tel: (619) 236-6220 Fax: (619) 236-7215 [email protected] [email protected]
OFFICE OF THE SAN DIEGO CITY ATTORNEY CITY OF SAN DIEGO
Dennis J. Herrera City Attorney Owen J. Clements
Chief of Special Litigation Erin Bernstein
Deputy City Attorney SAN FRANCISCO CITY ATTORNEY
Fox Plaza
1390 Market Street, Seventh Floor San Francisco, CA 94102
Tel: (415) 554-3800 Fax: (415) 554-3985 [email protected] [email protected]
SAN FRANCISCO CITY ATTORNEY
CITY AND COUNTY OF SAN FRANCISCO
John C. Beiers County Counsel Rebecca M. Archer Deputy County Counsel OFFICE OF THE COUNTY COUNSEL
COUNTY OF SAN MATEO 400 County Center Sixth Floor Redwood City, CA 94063
Tel: (650) 363-4686 (Rebecca's direct) Fax: (650) 363-4034
OFFICE OF THE COUNTY COUNSEL
Lori E. Pegg Greta Hansen
Lead Deputy County Counsel Jenny S. Lam
Deputy County Counsel
OFFICE OF THE COUNTY COUNSEL, SANTA CLARA COUNTY
70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 Tel: (408) 299-5900 Fax: (408) 291-7240
[email protected] [email protected]
OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
Dennis Bunting County Counsel
SOLANO COUNTY COUNSEL Solano County Courthouse
675 Texas Street, Suite 6600 Fairfield, CA 94533
Tel: (707) 784-6140 Fax: (707) 784-6862
OFFICE OF THE COUNTY COUNSEL SOLANO COUNTY COUNSEL Leroy Smith County Counsel Eric Walts
Assistant County Counsel OFFICE OF THE COUNTY COUNSEL COUNTY OF VENTURA 800 S. Victoria Avenue L/C #1830 Ventura, CA 93009 Tel: 805-654-2580 Fax: 805-654-2185 [email protected]
OFFICE OF THE COUNTY COUNSEL
COUNTY OF VENTURA
Lori E. Pegg, ActingCounty Counsel Greta Hansen
Lead Deputy County Counsel Jenny S. Lam
Deputy County Counsel OFFICE OF THE COUNTY COUNSEL, SANTA CLARA COUNTY
70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 Tel: (408) 299-5900 Fax: (408) 291-7240
[email protected] [email protected]
OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA
Dennis Bunting County Counsel
SOLANO COUNTY COUNSEL Solano County Courthouse
675 Texas Street, Suite 6600 Fairfield, CA 94533
Tel: (707) 784-6140 Fax: (707) 784-6862
OFFICE OF THE COUNTY COUNSEL SOLANO COUNTY COUNSEL Leroy Smith County Counsel Eric Walts
Assistant County Counsel OFFICE OF THE COUNTY COUNSEL COUNTY OF VENTURA 800 S. Victoria Avenue L/C #1830 Ventura, CA 93009 Tel: 805-654-2580 Fax: 805-654-2185 [email protected]
OFFICE OF THE COUNTY COUNSEL
Fidelma Fitzpatrick MOTLEY RICE LLC 321 South Main Street Providence, RI 02903-7108 Tel: (401) 457-7700
Fax: (401) 457-7708
ATTORNEYS FOR THE PEOPLE OF THE STATE OF CALIFORNIA, ACTING BY AND THROUGH THE CITY ATTORNEY FOR THE CITY AND COUNTY OF SAN FRANCISCO AND THE COUNTY COUNSEL OF LOS ANGELES
ATTORNEYS FOR THE PEOPLE OF THE STATE OF CALIFORNIA, ACTING BY AND THROUGH THE CITY ATTORNEY FOR THE CITY AND COUNTY OF SAN FRANCISCO
Mary Alexander Jennifer L. Fiore
MARY ALEXANDER & ASSOCIATES
44 Montgomery Street, Suite 1303 San Francisco, CA 94104
Tel: (415) 433-4440 Fax: (415) 433-5440
[email protected] [email protected]
ATTORNEYS FOR THE PEOPLE OF THE STATE OF CALIFORNIA
Peter G. Earle
LAW OFFICE OF PETER EARLE, LLC
839 N. Jefferson Street, Suite 300 Milwaukee, WI 53202-3744 Tel: (414) 276-1076
Fax: (414) 899-9521 [email protected]
Santa Clara County Superior Court Hon. James P. Kleinberg
191 N. First Street San Jose, CA 95113
California Court of Appeal
Sixth Appellate District, Division One 333 West Santa Clara Street
Suite 1060
San Jose, CA 95113