County of Santa Clara v. Atlantic Richfield Co.

Roy Combs, for Oakland Unified School District.

Dennis Jose Herrera, and Owen Clements, Ingrid M. Evans, San Francisco, for City and County of San Francisco, et al.

John Anthony Russo, Randolph W. Hall, Oakland, Andrea Ford Roberts, Christoper Kee, for City of Oakland, et al.

Sean O'Leary Morris, James Frederic Speyer, William H. Voth, Philip H. Curtis, Arnold & Porter, Los Angeles, for Respondent Atlantic Richfield Company.

James McManis, William Faulkner, McManis, Faulkner & Morgan, San Jose, for Respondent NL Industries, Inc.

Anna S. McLean, Heller, Ehrman, White & McAuliffe, San Francisco, Elyse Echtman, Richard W. Mark, Orrick, Herrington & Sutcliffe, for Respondent American Cyanamid Company.

Lawrence A. Wengel, Greve, Clifford, Wengel & Paras, Sacramento, for Respondent ConAgra Grocery Products.

Clement L. Glynn, Glynn & Finley, Walnut Grove, Steven R. Williams, Visalia, Collin J. Hite, William H. King, Jr., McGuire Woods, Los Angeles, for Respondent E.I. DuPont De Nemours & Company.

Michael T. Nilan, David T. Schultz, Halleland, Lewis, Nilan, Sipkins & Johnson, and James C. Hyde, Ropers, Majeski, Kohn & Bentley, San Jose, for Respondent Millennium Inorganic…

A group of governmental entities acting for themselves, as class representatives, and on behalf of the People of the State of California, filed a class action against a group of lead manufacturers. The governmental entities alleged that the manufacturers were liable on theories of strict product liability, negligence and fraud for damages caused by lead paint, should be required to abate the public nuisance created by lead paint, and should be enjoined and ordered to pay restitution, disgorge profits and pay civil penalties due to their unfair business practices regarding lead paint. The superior court sustained the manufacturers’ demurrers to the public nuisance causes of action. The governmental entities sought leave to file an amended complaint adding a cause of action for continuing trespass. The court denied leave on the ground that the proposed allegations did not state a cause of action. The manufacturers moved for summary judgment on statute of limitations grounds on the remaining causes of action, and the court granted the motion and dismissed the action.

On appeal, the governmental entities claim that the superior court erred in (1) sustaining the demurrers to…

As the majority observes, plaintiffs contend on appeal that the trial court erred: (1) in sustaining demurrers to their public nuisance claims; (2) in denying them leave to amend to allege trespass; and (3) in granting summary judgment on their remaining causes of action for strict products liability, negligence, fraud, and unfair competition. Addressing those contentions, the majority (1) agrees in part with the first contention, concluding that the representative plaintiffs, seeking abatement only, stated a cause of action for public nuisance; (2) disagrees with plaintiffs’ second contention, concluding that the trial court properly denied leave to amend to assert trespass; and (3) agrees in part with plaintiffs’ third contention, reversing summary judgment as to plaintiffs’ causes of action for strict products liability, negligence, and fraud, but not as to their unfair competition claim.

I concur in the result reached by the majority, and I am in accord with much of its analysis. I write separately because I respectfully disagree with the majority’s reasoning on several points.

I. JUDGMENT AFTER DEMURRER: THE REPRESENTATIVE PUBLIC NUISANCE CAUSE OF ACTION

I join with my…