News

City of Modesto Seals Appellate Victory in 20-Year Battle Over Contamination

California Supreme Court Rejects Chemical Suppliers' Appeal

 

On Wednesday, April 25, 2018 the California Supreme Court sealed a major appellate victory for the City of Modesto in its 20-year battle against chemical manufacturers and other parties responsible for widespread contamination with a carcinogenic dry-cleaning solvent. The Supreme Court rejected claims by the two largest chemical suppliers – bolstered by friend-of-court letters from eight major industry groups – that Modesto’s favorable outcome in the First District Court of Appeal in San Francisco should be reviewed by the higher court. Instead, with no recorded dissent, the Supreme Court denied a review and allowed all the Court of Appeal’s rulings to stand. As a result, Modesto can now pursue over $100 million worth of injunction and damages claims that the chemical suppliers had successfully attacked at the trial court level.

 

In accordance with several decades of product literature from the manufacturers, wastes of their solvent known as perchloroethylene or “PCE” had been disposed of casually into the environment: dumped outside or poured down the drain. This led to heavy accumulations in soil and groundwater at dozens of sites across Modesto. While the city obtained more than $30 million in settlements in the early stages of the lawsuit it commenced in 1998, those funds covered only a fraction of the cost to remedy this extensive contamination. The two largest suppliers of PCE in the city, The Dow Chemical Company and PPG, Inc., had failed to settle and walked away with only minimal liability.
 

Modesto thus pursued an appeal on January 4, 2012, principally targeting Dow and PPG. Its lead counsel was Elliot L. Bien, principal of the San Rafael appellate specialty firm of Bien & Summers. Also on Modesto’s appellate team were the city’s trial counsel at Miller & Axline in Sacramento and Davidovitz & Bennett in San Francisco, and Modesto’s city attorneys at Meyers Nave in Sacramento succeeding former city attorney Roland Stevens.


The appeal took an extraordinary six years from start to finish. Given the long trial court battle that went before, the appellate record consisted of 94 volumes of written material plus 232 volumes of reporters' transcripts. Similarly, the appellate briefing required hundreds of pages on Modesto’s appeal and the lead defendants’ cross appeal. The issues included public nuisance law, judicial estoppel, the scope of appellate courts’ discretion, a variety of statutory clean up remedies, fundamental disputes over causation requirements and the definition of property injury for tort damage purposes, the proper allocation of settlement credits, and several punitive damages issues. 


Following an extraordinary oral argument last November, lasting nearly 2 1/2 hours, the Court of Appeal issued a 91 page decision on January 8, 2018. Although Modesto did not prevail on every issue, its favorable appellate rulings have radically improved its ability to cope with a contamination threatening the water supply and health of over 200,000 people. In addition, other governmental and private parties facing similar challenges can draw strong support from Modesto’s favorable rulings – especially now that they have passed muster in the California Supreme Court.


The full Court of Appeal opinion can be accessed here:
http://www.courts.ca.gov/opinions/documents/A134419.PDF

The official citation for the published version is City of Modesto v. Dow Chemical Company (Jan. 8, 2018, as modified on denial of rehearing (Feb 6, 2018) 19 Cal.App.5th 130 (review denied Apr. 25, 2018)


State Bar committee considering Bien's proposed rule on plagiarism

 

Following up on Elliot's published article condemning plagiarism by lawyers ("Officers of a Court Do Not Plagiarize," California Litigation, Vol. 27, No. 1, 2014), he submitted a detailed proposal on that subject to the California State Bar's Commission For Revision of the Rules of Professional Conduct.  Although the Commission declined to pursue the issue, Elliot updated his proposal and submitted it on June 4, 2018, to the State Bar's standing Committee on Professional Responsibility and Conduct. Its text is attached below.


Downloads:  

1930request for coprac action on plagiarism.pdf

The Recorder Names Bien & Summers as One of California's Top Appellate Practices

 

Bien & Summers was named one of the top nine appellate practices in California by The Recorder in a July 29, 2012 feature entitled "California Supreme Court Year in Review."

 

According to the publication: "To create our list of leading appellate practices in California, we asked for nominations detailing recent notable wins and identifying five key players. Recorder editors also surveyed lawyers knowledgeable about appellate law for their confidential assessments and suggestions of practices that ought to be included in a go-to list."  The complete article is available to Recorder subscribers here.


Other Recent Victories

 

On March 9, 2016, the Ninth Circuit unanimously reversed the pretrial dismissal of our clients' "class-of-one" Equal Protection claims in a land use case, Contasti et al. v. City of Solano Beach.  Remanding for a trial, the court held there was sufficient evidence that the city's denial of a permit to construct a residence treated the clients "differently and detrimentally" under Ninth Circuit precedent.

 

On April 22, 2015, the California Supreme Court denied review (and two depublication requests) in Richardson v. Franc (2015) 233 Cal.App.4th 744, securing the firm's victory for its clients in the First District Court of Appeal. The opinion reaffirms and elucidates the doctrine of irrevocable parol licenses, whereby verbal or silent acquiescence in a use of one's property becomes binding if there is reasonable and substantial reliance.

 

On April 10, 2015, overcoming the enormous odds against writ petitions, the firm obtained a peremptory writ of mandate for our client in the First District Court of Appeal based solely on a Palma notice, opposition and reply. (Campbell v. Superior Court; case no. A144153) The case tested the extent to which a good faith settlement bars cross-actions between alleged joint tortfeasors where, as here, the cross-complaint includes tort claims for direct damages as well as indemnity for the common plaintiff's damages.