Lockheed Martin v. Super. Ct. 4/30/03 CA4/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: E031381

Case Date: 05/22/2003

Preview:Filed 4/30/03; pub. order 5/22/03 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO LOCKHEED MARTIN CORPORATION, Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF SAN BERNARDINO, Respondent; KAREN ADAMS et al., Real Parties in Interest. E031381 (Super.Ct.No. RCV 31496) OPINION

ORIGINAL PROCEEDINGS in mandate. Ben T. Kayashima, Judge. Petition granted in part and denied in part. Holme Roberts & Owen and Linnea Brown; Gibson, Dunn & Crutcher, Robert S. Warren, Robert W. Loewen, and David A. Battaglia for Petitioner. No appearance for Respondent. Engstrom, Lipscomb & Lack, Walter J. Lack, Elizabeth L. Crooke, Gary A. Praglin, Richard P. Kinnan; Girardi & Keese, Thomas V. Girardi and Howard B. Miller, for Real Parties in Interest.

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In this matter we are required to analyze and apply the delayed discovery rule in a toxic contamination case to determine whether the statute of limitations bars the personal injury and wrongful death claims of 28 plaintiffs and the claims of eight other plaintiffs brought pursuant to Proposition 65.1 We conclude that the trial court did not correctly apply the rule to the facts and consequently erred in denying defendant Lockheed Martin Corporation's (Lockheed) motion for summary judgment/adjudication with respect to the 28 personal injury plaintiffs. With respect to the Proposition 65 claims, we seriously question whether Lockheed can be held liable when it is undisputed that it ceased operations in the area in 1974. However, Lockheed seeks reversal solely on the ground that the delayed discovery rule can never be applied to causes of action brought pursuant to Proposition 65. We are not prepared to so hold, and believe that its contentions are properly considered in determining the retroactive scope of Proposition 65. Accordingly, we grant Lockheed's petition for writ of mandate in part.

The 28 personal injury plaintiffs are: Karen Adams, Ruth Barnes, Karolyn Baucom, Ruth Brogan, Joseph Butler, Don Buyak, Mary Ann Finstad, Virginia Fister, Laurence Gallagher, Teresa Gibbons, Audrey Hayes, Ada Heemstra, Roseana Lemos, Sandra McIntosh, Sheryl Nelson, Terri Nielsen, Georgia Norwood, Karie Pearson, Connie Roque, Leo Roque, Hans H. Scheibe, Carl Smith, Clarence Smith, Jolene Smith, Sarah Wells, Robert Wells, Jr., Lisa Willis, and Adrienne Wise-Tates. The trial court denied summary adjudication of the Proposition 65 causes of action of the following eight plaintiffs: Ashika Bradford, Mark Hughes, Leigh Hunt, Elizabeth Konogeris, Debbie Mach, Merry Nelson, Lekisha Reese, and Derek Schott.

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FACTUAL AND PROCEDURAL BACKGROUND This petition arises from claims made by nearly 800 persons for personal injuries as a result of exposure to toxic contaminants in the Redlands water supply. Petitioner Lockheed, alleged to have been one of the polluters when it operated a plant in Mentone from 1955 to 1974, is a defendant in a series of related actions brought between February 25, 1997, and February 25, 1999, that have been consolidated for pretrial purposes under the caption In re Redlands Tort Litigation. The causes of action at issue are for negligence, wrongful death, strict liability for ultrahazardous activity, and violation of Proposition 65.2 The parties have been litigating the claims of approximately 48 test plaintiffs pursuant to a case management order. The trial court refers to these test plaintiffs as the First Tier Plaintiffs or FTP's. Lockheed moved for summary judgment and/or adjudication with respect to 44 of the FTP's on the ground that all their causes of action were barred by the applicable one-year statute of limitations, given that its alleged wrongful conduct occurred more than 20 years before, and that each plaintiff suffered appreciable harm more than one year prior to filing suit. Although Lockheed conceded that the delayed discovery exception applied in principle to the personal injury claims, it

The trial court ruled that the one-year statute of limitations under Code of Civil Procedure section 340 subdivision (3) applied to both the personal injury and strict liability claims and made no distinction between these causes of action and the wrongful death causes of action in applying the delayed discovery rule. Nor do the parties treat them differently in their arguments. Therefore, references in this opinion to the personal injury claims include the wrongful death and strict liability causes of action as well.

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contended that due to the widespread publicity concerning water contamination in Redlands, a reasonable person would have suspected a link between the contamination and their injuries more than a year before filing suit. Lockheed contended that the delayed discovery exception is not applicable to claims under Proposition 65. The trial court concluded that the delayed discovery rule applied to the Proposition 65 claims as well as to the other causes of action. The trial court found that Lockheed had met its initial burden by showing that all of the 44 FTP's causes of action had accrued prior to one year before their complaints were filed, so that in order to save their claims the plaintiffs were required to show that the delayed discovery rule applied. In order to determine whether a triable issue of fact existed with regard to the application of the discovery rule, the trial court assessed the effect of widespread publicity about contamination of the Redlands groundwater. The publicity included over 100 articles in local newspapers, public notices and fact sheets, and public meetings. The trial court divided the publicity into two categories. The first series of articles, television programs, and radio segments from September 1980 through May 1997 discussed the contamination of the groundwater, and the second series of articles and paid advertisements published from June 1996 to March 23, 1997, discussed the various lawsuits and injuries allegedly sustained from the contamination. The court found that in the first series of articles the media was preoccupied with contamination only, not whether this contamination caused personal injuries or death. "In the first series of articles, the information given at most would have alerted the Plaintiffs to the fact that the

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groundwater was contaminated with [trichloroethylene (TCE)], a weak carcinogen that would only produce health hazards if the Plaintiffs were exposed to the contaminant over a 70-year period. In addition, the first series of articles stressed that the contaminated water was not being delivered to the citizens of Redlands." In the trial court's view, the second series of articles and paid advertisements discussed injuries sustained from contamination. "The articles primarily discuss the lawsuits that were filed and the basis for those lawsuits. The articles contained specific information regarding contaminated water causing personal injuries. These articles often appeared as headline news stories and appeared on the front pages of the newspaper. [

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