Source: http://www.chicoer.com, February 17, 2015
By: Ian Bauer
A San Francisco law firm’s prior class-action lawsuit over odors allegedly emanating from the Newby Island Landfill and Resource Recovery Park on the Milpitas-San Jose border has stalled, after a judge ruled the existing suit was legally insufficient as presented to the court.
In 2012, the Evans Law Firm, in conjunction with Detroit-based Macuga, Liddle & Dubin PC, filed a suit in Santa Clara County Superior Court against Republic Services of Santa Clara County (named in the suit as International Disposal Corp. of California) regarding the San Jose landfill at 1601 Dixon Landing Road, on behalf of Milpitans Peter Ng and Dolly Wu, and other unnamed residents.
The law firms’ suit — that largely seeks monetary damages and asks for odor mitigation from the dump’s operator — is separate from an ongoing legal battle over odor between City of Milpitas and the landfill operator that is on appeal. Currently, Milpitas officials are mulling possible litigation against Republic that might look to close the landfill permanently.
Under the Evans Law Firm’s suit, the firm “alleges negligence and nuisance in the operation of this landfill, and seeks damages for all persons residing within a two-mile radius of the landfill, which encompasses over 10,000 homes and over 30,000 residents,” an Evans Law Firm statement reads. “Despite numerous complaints to the Bay Area Air Quality Management District regarding noxious odors from this facility, Republic Services Inc. continues to expand its operations at Newby Island.”
But following challenges by the waste company on the plaintiff’s allegations of odor nuisance that hinged on air modeling data, the court ruled last month to deny the lawsuit’s assertions.
On Jan. 23, Santa Clara County Superior Court Judge Peter Kirwan in part ruled the plaintiff’s class-action case was “overly broad” and the members of the class action could not be easily identified as Milpitas residents or persons living within the vicinity of the landfill. The judge also asserted the case itself was not a class action per se.
“The court finds that plaintiffs have not sufficiently carried their burden of establishing the existence of an ascertainable class and a well-defined community of interest among the proposed class members,” Kirwan wrote in his ruling. “For these reasons, plaintiff’s motion for class certification is denied without prejudice.”
Republic Services, in a written statement issued on Jan. 27, was pleased with the judge’s decision.
“The court issued the ruling based on the current evidence in the record as well as a lack of an ascertainable class and the absence of a well-defined community of interest among proposed class members,” Republic Services’ statement reads. “As part of the proceedings, the court considered the plaintiff’s air modeling data and concluded that it was insufficient to demonstrate an odor nuisance affecting the proposed class. In addition, the court considered expert reports about other odor sources in the immediate area, including the South Bay and the organic nature of the coastal marine wetlands and estuarine streams.”
Moreover, the company claimed it has “invested substantially in highly advanced odor mitigation technology, and maintains industry-leading management practices.”
Ingrid Evans, a civil trial attorney, said the ruling of denial without prejudice does not bar her plaintiffs — who she says number in the hundreds — from refiling the suit.
“Our motion was denied but the issues can be addressed … meaning we can bring it again,” Evans said.
Saying there are plans to refile the same case with the court soon, Evans suggested the initial class action — where a large group of plaintiffs have allegedly been harmed by the same common defendant — can be brought back as a mass action, also known as a mass tort.
In a mass action, claims often involve injuries to a distinct group of individuals who likely reside in the same geographic area. Typically, mass actions are smaller cases than class action suits.
Evans added a trial date had been set for this summer.
According to court documents, the suit “alleges that Republic recklessly and willfully failed to take adequate safety measures to protect the nearby public from the noxious odors, pollutants, and air contaminants caused by its day-to-day operations; the landfill includes facilities for the processing of solid waste, compost, construction and demolition material, and gas-to-energy, as well as a recyclery.”
The suit states “odors, pollutants and air contaminants invading the plaintiffs’ property from the landfill (have) frequently forced nearby residents to forego the use of their yards, having to stay inside with doors and windows closed, and interferes with the plaintiffs’ ability to freely use their property. The suit alleges the landfill constitutes a public and private nuisance, and that Republic Services Inc. should be held responsible for negligence and nuisance in the operation of their business.”
Besides Republic, the lawsuit also seeks court action against up to 100 unnamed defendants, described as “Does” in the suit, who are “legally responsible in some manner for the unlawful acts described above.” The plaintiffs’ suit states those defendants may be named later as the case proceeds.
If the case were to proceed in the future, the lawsuit seeks a trial by jury and an award of “restitution, actual and punitive damages and attorneys’ fees and costs, including pre-judgment and post-judgment interest” and “an order that the entrance of…odors upon plaintiffs’ property constituted a nuisance.”
In addition, the suit seeks a “temporary, preliminary and permanent order for injunctive relief requiring defendants to expeditiously repair or correct the operation of the facilities in a manner that is practically abatable and economically feasible as determined by plaintiffs’ expert, so that odors, pollutants and air contaminants no longer invade plaintiffs’ property.” The plaintiffs also ask for any “further relief as the court deems just and proper.”
Evans is working with Macuga, Liddle on this case. According to the firm’s website, Macuga, Liddle & Dubin focuses on class-action lawsuits involving pet food recalls, basement flooding, environmental contamination, governmental liability and consumer law cases.
Among its cases, Macuga, Liddle & Dubin has investigated odor complaints from the Riverview Land Preserve — a municipal solid waste landfill owned by the City of Riverview, Mich., a 12,500-person suburb about 20 miles southwest of Detroit.
Evans’ lawsuit comes after her firm sent letters and an accompanying question-and-answer survey in 2012 to Milpitas residents regarding odors allegedly emitted from Newby Island. Evans Law Firm sent out similar letters to Milpitas residents less than a month ago — containing question-and-answer surveys or “data sheets.”