                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 19 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ESTATE OF BETTY GOLDBERG,                       No.    16-56297
DECEASED, by and through their successor
in interest, Daniel Rubin; ESTATE OF AL         D.C. No.
GOLDBERG, DECEASED, by and through              5:14-cv-01872-DSF-AFM
their successor in interest, Daniel Rubin,

      Plaintiffs-counter-                       MEMORANDUM*
      defendants-Appellants,

 v.

GOSS-JEWETT COMPANY, INC., AKA
Tri-County Sales, Inc.; et al.,

      Defendants-cross-
      defendants-Appellees,

ESTATE OF ROBERT W. SCHACK,
Deceased; et al.,

      Defendants-cross-claimants-
      Appellees,

VIGILANT INSURANCE COMPANY; et
al.,

                Intervenors-Appellees,

DONALD J. GEORGE,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Defendant-counter-claimant-
      Appellee,

 v.

 PACIFIC ENGINEERING ASSOCIATES,
INC.,

      Third-party-defendant-
      counter-claimant-Appellee,

CLAY SCOTT BRADFIELD,

      Third-party-defendant-
      cross-claimant-Appellee,

 v.

ST. PAUL CLEANERS & LAUNDRY,
INC.; et al.,

      Third-party-defendant-
      Appellees.

                  Appeal from the United States District Court
                     for the Central District of California
                   Dale S. Fischer, District Judge, Presiding

                      Argued and Submitted March 7, 2018
                             Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,** Chief
District Judge.




      **
             The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.

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      The Estates of Betty and Al Goldberg, through Daniel Rubin, appeal the

district court’s orders dismissing some of their claims and granting summary

judgment on the remainder. The claims were brought under California and federal

law against Defendants for allegedly contaminating the Goldbergs’ property with

toxic dry-cleaning fluid. We affirm in part, reverse in part, and remand.

      1. The district court properly dismissed the claims for waste, negligence,

ultrahazardous activity, unfair competition, and breach of lease as barred by the

statutes of limitations. The complaint recognizes that these claims arose by 1994

and tries to assert eligibility for equitable tolling. But even liberally construed the

complaint does not “adequately allege[] facts showing the potential applicability of

the equitable tolling doctrine.” Cervantes v. City of San Diego, 5 F.3d 1273, 1277

(9th Cir. 1993) (emphasis in original). The 17-year pendency of the Goldbergs’

1994 lawsuit could warrant equitable tolling only if that prior case was erroneously

dismissed. See Wood v. Elling Corp., 572 P.2d 755, 759 (Cal. 1977). But the

complaint merely pleads a “conclusory allegation[] of law” that the action was

erroneously dismissed. Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d

806, 812 (9th Cir. 2010). Nor are there any factual allegations to invoke the

“continuing violation” doctrine. See LaSalvia v. United Dairymen of Arizona, 804

F.2d 1113, 1118 (9th Cir. 1986) (emphasis added). The record shows that

amendment would be futile because the 1994 action was properly dismissed for


                                           3
failure to prosecute.

      2. The district court committed a harmless error when it dismissed the

trespass claim as barred by laches. See 28 U.S.C. § 2111. California case law

suggests that laches can bar a trespass claim. See Pac. Hills Homeowners Ass’n v.

Prun, 73 Cal. Rptr. 3d 653, 658 (Cal. Ct. App. 2008). The district court purported

to apply laches here based on “judicially noticeable facts” that it found in

dismissing the 1994 action. That was in error; the court could not take judicial

notice of its prior order “for the truth of the facts recited therein.” See Lee v. City

of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). However, this error was

harmless because the district court effectively treated the motions to dismiss as

motions for summary judgment. See Fed. R. Civ. P. 12(d). Defendants’ motions

relied on their prior submissions of evidence, putting the Goldberg Estates on

notice that the court would look beyond the pleadings. See Olsen v. Idaho State

Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). And the prior proceeding on

dismissing the 1994 action presented a “reasonable opportunity” for the Goldberg

Estates to marshal their best evidence to justify their delay and rebut Defendants’

claims of prejudice. Fed. R. Civ. P. 12(d). Viewing the motions to dismiss as

having been converted to summary judgment motions once Defendants’ evidence

was considered, there was no genuine issue of material fact to preclude dismissal

of the trespass claim because of laches. See Fed. R. Civ. P. 56.


                                           4
      3. The district court erred in dismissing the public nuisance claim as barred

by laches. Several California courts have held that when environmental harm to

the public is alleged, as it is here, laches cannot bar a public nuisance claim. See,

e.g., Wade v. Campbell, 19 Cal. Rptr. 173, 177 (Cal. Ct. App. 1962); City of

Turlock v. Bristow, 284 P. 962, 965 (Cal. Ct. App. 1930). But these cases do not

speak to private nuisance claims, so the private nuisance claim was properly

dismissed.

      4. The district court abused its discretion in dismissing the RCRA citizen

suit claim as barred by laches. Laches is “strongly disfavored in environmental

cases.” Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025, 1031 (9th Cir.

2012). Three factors support this presumption against the equitable defense of

laches here. First, it makes little sense to say that a private attorney general “sleeps

on his rights” when those rights belong to the public. Id. The pollution at issue

endangers the health of people living next door to the property and threatens to

contaminate a nearby creek, harming “the public at-large, and not just the

plaintiffs.” Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 555 (9th Cir.

2006). Second, it would be unfair to the public and disregard its interests to

dismiss this citizen suit simply because it was filed by the dilatory Goldberg

Estates rather than by another plaintiff, such as the property’s new owner, 220 W.

Gutierrez, LLC, or a new neighbor living near the property. See Jarrow Formulas,


                                           5
Inc. v. Nutrition Now, Inc., 304 F.3d 829, 840 (9th Cir. 2002) (“[T]he public good

is of paramount importance when considering the equitable defense of laches.”

(emphasis in original) (citation omitted)). Anyone presently injured by the toxic

chemicals emanating from the property could have brought this exact same claim

against Defendants. See 42 U.S.C. 6972(a). Third, maintaining this RCRA claim

would advance the congressional policy of abating threats to human health and the

environment. See id. § 6902(b). “The use of laches should be restricted to avoid

defeat of Congress’ environmental policy.” Save the Peaks, 669 F.3d at 1031

(citation omitted). So although the Goldberg Estates’ personal trespass claim is

barred by their 17-year delay and the resulting prejudice to Defendants, the

equitable considerations operate differently in the context of the RCRA claim.

These facts are not so extreme as to give rise to one of the “rare cases” in which

the presumption against laches barring a RCRA citizen suit is overcome.

Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1381 (9th Cir.

1998). On remand, the district court should determine whether summary judgment

is appropriate or a trial is required on the merits of this RCRA claim.

      5. The district court erred in granting summary judgment on the claims for

response costs and declaratory relief under CERCLA and the HSAA. CERCLA’s

statute of limitations requires suit “within 3 years after completion of the removal

action.” 42 U.S.C. § 9613(g)(2)(A) (emphasis added). When pollution removal is


                                          6
incomplete, courts “have uniformly held that all ‘removal’ activities at a site

constitute a single ‘removal’ for statute of limitations purposes.” California Dep’t

of Toxic Substances Control v. Hyampom Lumber Co., 903 F. Supp. 1389, 1394

(E.D. Cal. 1995). The California Department of Toxic Substances Control’s July

2012 order found that no removal activities had been conducted “since March

1996.” Because this removal action still has not been completed, CERCLA’s

statute of limitations has not yet begun to run.

      The district court also erred in concluding that the Goldberg Estates could

not obtain a declaratory judgment that Defendants are liable under CERCLA. That

statute provides that the entry of declaratory judgment as to a defendant’s liability

is mandatory. 42 U.S.C. § 9613(g)(2). “The fact that future costs are somewhat

speculative is no bar to a present declaration of liability.” Kelley v. E.I. DuPont de

Nemours & Co., 17 F.3d 836, 844 (6th Cir. 1994) (internal quotation marks and

citation omitted).

      Finally, the district court erred in granting summary judgment on the HSAA

claim on the ground that the HSAA’s definition of “person” does not include

estates. The court correctly observed that the HSAA is generally interpreted the

same way as CERCLA. But even though CERCLA’s definition of “person” does

not enumerate estates, there is no dispute between the parties in this case that a

deceased individual’s estate qualifies as a “person” under CERCLA. See 42


                                           7
U.S.C. § 9601(21). Because the parties agree that an estate is entitled to make a

CERCLA claim, we conclude that the estate qualifies to make a claim under the

HSAA as well.

      6. The district court properly granted summary judgment on the claims for

contractual and equitable indemnity as barred by the statute of limitations and

laches. By statute, “the person indemnified is not entitled to recover without

payment thereof.” Cal. Civ. Code § 2778(2). The record shows that the Goldberg

Estates’ only payments were made in the 1990s; more recent payments have been

made by Daniel Rubin as trustee of the Goldberg Trust, who is not a named party

to this dispute. See Greenspan v. LADT, LLC, 121 Cal. Rptr. 3d 118, 146 (Cal. Ct.

App. 2010). Accordingly, recovery of the Goldberg Estates’ payments under a

contractual indemnity theory is barred by the statute of limitations. See Cal. Code

Civ. Proc. § 337. Recovery under a theory of equitable indemnity, like the trespass

claim, is barred by laches. See People v. Koontz, 46 P.3d 335, 366 (Cal. 2002).1

      7. Appellees’ Motion to Take Judicial Notice (Dkt. 49) is GRANTED.

Appellees’ Motion to Strike Portions of Reply Brief and Further Excerpts of

Record; Alternatively, for Leave to File Response to Appellants’ Reply Brief (Dkt.



1
 On remand, however, Daniel Rubin may move to join this case as a named
plaintiff in his capacity as trustee of the Goldberg Trust, and may seek to reassert
claims that the Goldberg Estates could not bring here. See Fed. R. Civ. P. 19(a)(1).
We express no opinion whether any such motion should be granted.

                                         8
65) is DENIED as to the motion to strike and GRANTED as to the motion for

leave to file a surreply.

      Each party shall bear its own costs on appeal. See Fed. R. App. P. 39(a)(4).

      AFFIRMED in part; REVERSED in part; REMANDED.




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