                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 28 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MELISSA ANASTASIOU DALTON,                       No. 10-16074
individually and as guardian ad litem for
Kala Smith, Rebekah Mabery Anastasiou
and Michael Mabery; RALPH WEBER,                 D.C. No. 3:08-cv-02742-SI

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  and

HARRY WHITLOCK; FERN BROYLES;
SHEBIA CORNETT; ANGELA
HARRINGTON; WANDA FARMER;
LINDA GAYLE FORD; ALVIN E.
FORD; TIMOTHY E. FORD; DANIEL
W. FORD; TRACY L. FORD; MELINDA
J. FORD; JUANITA SHUMAKER;
DANIELLE SMITH; MARY SWEET;
LORETTA THOMSEN; JACK TUTTLE;
JO ANN WAKELAND; RUTH WEBER;
KEVIN TODD; REBECCA LYNNE,

              Plaintiffs,

  v.

PEPSI AMERICAS; PNEUMO ABEX
CORPORATION; PNEUMO ABEX,
LLC,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
              Defendants - Appellees.



                   Appeal from the United States District Court
                     for the Northern District of California
                     Susan Illston, District Judge, Presiding

                       Argued and Submitted June 15, 2011
                            San Francisco, California

Before: SCHROEDER, RIPPLE,** and BEA, Circuit Judges.

      Melissa Anastasiou Dalton (“Dalton”), individually and as guardian ad litem

for Kal Smith and others, and Ralph Weber (“Weber”), appeal the district court’s

summary judgment in favor of Pepsi Americas, Pneumo Abex Corporation, and

Pneumo Abex, LLC in their diversity action alleging injuries sustained as a result

of improper disposal of hazardous waste at the Remco facility located in Willits,

California.

      The district court properly granted summary judgment for defendants in

Dalton’s case. Dalton’s claims were time-barred since she “knew, or should have

known,” the cause of her injuries years earlier. See 42 U.S.C. §§ 9658(b)(4),

9658(a)(1). The defendants presented evidence to the district court that Dalton




       **
             The Honorable Kenneth F. Ripple, Senior Circuit Judge for the United
States Court of Appeals for the Seventh Circuit, sitting by designation.

                                         2
knew, or should have known, of her claims by at least 2000 because she met with

an attorney and investigator who were looking for claimants at that time.

      On appeal, Dalton suggests it is possible that the investigator and attorney

led her to believe, however incorrectly, that she did not have a claim. This is

speculative and insufficient to raise a genuine issue of fact defeating summary

judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th

Cir. 1979).

      The district court also properly granted summary judgment for defendants

with respect to Weber’s preconception claim because California state law does not

recognize such a claim. In defining the contours of a preconception negligence

claim, California courts have held that California “law imposes liability only when

there is a ‘special relationship’ between the defendant and the mother giving rise to

a duty to the minor plaintiff.” Hegyes v. Unjian Enters., Inc., 234 Cal. App. 3d

1103, 1114 (1991). In this case, Weber seeks compensation for personal injuries

allegedly caused by preconception exposure of his parents and grandparents when

they lived in Willits, but he does not allege they had any special relationship to the

defendants. Thus, the district court properly concluded that because there was no

special relationship between the defendants and Weber’s mother, the defendants




                                           3
did not owe him a duty of care. See Avila v. Willits Envtl. Remediation Trust, 633

F.3d 828, 844 (9th Cir. 2011).

      AFFIRMED.




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