No. S203735 (Court of Appeal No. H038014) (Santa Clara County Superior Ct. No. 1-00-CV-788657) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ATLANTIC RICHFIELD COMPANY, CONAGRA GROCERY PRODUCTS CO., E.I. DU PONT DE NEMOURS AND CO., NL INDUSTRIES, INC., AND THE SHERWIN-WILLIAMS COMPANY Petitioners, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SANTA CLARA, Respondent, THE PEOPLE OF THE STATE OF CALIFORNIA, ET AL. Real Parties in Interest. ANSWER TO PETITION FOR REVIEW COUNTY OF SANTA CLARA LORI E. PEGG (SBN 129073) GRETA S. HANSEN (SBN 251471) JENNY S. LAM (SBN 259819) 70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 Telephone: (408) 299-5900 Facsimile: (408) 292-7240 Attorneys for Real Parties in Interest The People of the State of California COTCHETT, PITRE & McCARTHY, LLP NANCY L. FINEMAN (SBN 124870) ARON K. LIANG (SBN 228936) BRIAN M. SCHNARR (SBN 275587) 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 Attorneys for Real Parties in Interest The People of the State of California [Additional Counsel for Real Parties in Interested Listed on Following Page]
SAN FRANCISCO CITY ATTORNEY Dennis J. Herrera (SBN 139669) City Attorney Owen J. Clements (SBN 141805) Chief of Special Litigation Erin Bernstein (SBN 231539) Deputy City Attorney 1390 Market Street, Sixth Floor San Francisco, CA 94102 Telephone: (415) 554-3800 Facsimile: (415) 554-3837 Attorneys for Real Parties in Interest The People of the State of California MARY ALEXANDER & ASSOCIATES Mary Alexander (SBN 104173) Jennifer L. Fiore (SBN 203618) Sophia Aslami (SBN 262712) 44 Montgomery Street, Suite 1303 San Francisco, CA 94104 Tel: (415) 433-4440 Fax: (415) 433-5440 Attorneys for Real Parties in Interest The People of the State of California ALAMEDA COUNTY Donna R. Ziegler, County Counsel (SBN 142415)) Andrew Massey, Deputy County Counsel (SBN 240995) 1221 Oak Street, Ste 450 Oakland, CA 94612-4296 Telephone: (510) 272-6700 Facsimile: (510) 272-5020 Attorneys for Real Parties in Interest The People of the State of California ()
LOS ANGELES COUNTY John F. Krattli (SBN 82149) County Counsel Richard K. Mason (SBN 55055) Robert E. Ragland (SBN 175357) Andrea Ross (SBN 179398) Principal Deputy County Counsel 500 West Temple St, Suite 648 Los Angeles, CA 90012 Tel: (213) 974-1928 Fax: (213) 680-2165 Attorneys for Real Parties in Interest The People of the State of California COUNTY OF MONTEREY Charles J. McKee, County Counsel (SBN 152458) William M. Litt, Deputy County Counsel (SBN 166614) 168 West Alisal Street 3rd Floor Salinas, CA 93901 Telephone: (831) 755-5045 Facsimile: (831) 755-5283 Attorneys for Real Parties in Interest The People of the State of California OAKLAND CITY ATTORNEY Barbara Parker, City Attorney (SBN 69722) William E. Simmons (SBN 121266) One Frank H. Ogawa Plaza, 6 th Floor Oakland, California 94612 Telephone: (510) 238-3601 Facsimile: (510) 238-6500 Attorneys for Real Parties in Interest The People of the State of California OFFICE OF THE CITY ATTORNEY CITY OF SAN DIEGO Jan I. Goldsmith, City Attorney (SBN 70988) Daniel F. Bamberg, Chief Deputy City Attorney (SBN 60499) Paul F. Prather, Deputy City Attorney (SBN 252985) 1200 Third Avenue # 1100 San Diego, CA 92101 Telephone: (619) 236-6220 Facsimile: (619) 236-7215 Attorneys for Real Parties in Interest The People of the State of California
COUNTY OF SAN MATEO John C. Biers, County Counsel (SBN 144282) Rebecca M. Archer, Deputy County Counsel (SBN 202743) 400 County Center Sixth Floor Redwood City, CA 94063 Telephone: (650) 363-4760 Facsimile: (650) 363-4034 Attorneys for Real Parties in Interest The People of the State of California SOLANO COUNTY Dennis Bunting, County Counsel (SBN 55499) 675 Texas Street, Ste 6600 Fairfield, CA 94533 Telephone: (707) 784-6140 Facsimile: (707) 784-6862 Attorneys for Real Parties in Interest The People of the State of California COUNTY OF VENTURA Leroy Smith, County Counsel (SBN 107702) Eric Walts, Assistant County Counsel (SBN 233042) 800 S. Victoria Avenue L/C #1830 Ventura, CA 93009 Telephone: (805)654-2580 Facsimile: (805)654-2185 Attorneys for Real Parties in Interest The People of the State of California
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS CAL. R. CT. 8.208 Since all Plaintiffs are governmental entities, there are no interested entities or parties to list in this Certificate per California Rules of Court, Rule 8.208(d). I declare under penalty of perjury under California law that the foregoing is true and correct. Dated: July 23, 2012 O O 11)
TABLE OF CONTENTS Page(s) CERTIFICATE OF INTERESTED ENTITIES OR PERSONS INTRODUCTION AND SYNOPSIS OF ARGUMENT 1 BACKGROUND 2 LEGAL DISCUSSION 2 CONCLUSION 6 CERTIFICATE OF WORD COUNT 7
TABLE OF AUTHORITIES Page(s) CASES People ex rel. Sorenson v. Randolph (1979) 99 Cal. App. 3d 183 5 People v. Bhakta (2008) 162 Cal.App.4th 973 3, 5 People v. Englebrecht (2001) 88 Cal.App.4th 1236 3, 5 People v. Frangadakis (1960) 184 Cal.App.2d 540 3, 5 People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283 4 Schneider v. Schneider (1947) 82 Cal.App.2d 860 4 Wolford v. Thomas (1987) 190 Cal.App.3d 347 3, 5 STATUTES AND RULES California Rules of Court Rule 8.500(b) 3 Rule 8.500(b)(1) 3 Code of Civil Procedure Section 731 2 iii
OTHER AUTHORITIES 9 Witkin California Procedure Appeal 515 (5th ed. 2010) 6 0
INTRODUCTION AND SYNOPSIS OF ARGUMENT This Answer to Petition for Relief ("Answer") is being submitted by the People of the State of California, acting by and through Acting Santa Clara County Counsel Lori E. Pegg; San Francisco City Attorney Dennis Herrera; Alameda County Counsel Donna R. Ziegler; Los Angeles County Counsel John F. Krattli; Monterey County Counsel Charles McKee; Oakland City Attorney Barbara Parker; San Diego City Attorney Jan Goldsmith; San Mateo County Counsel John C. Beiers; Solano County Counsel Dennis Bunting; and Ventura County Counsel Leroy Smith (collectively referred to as the "People")) The People request that the Court summarily deny the Petition for Review filed on July 3, 2012 by Petitioners and Defendants Atlantic Richfield Co.; Conagra Grocery Products Co.; E.I. Du Pont de Nemours and Co.; NL Industries, Inc.; and the Sherwin-Williams Co ("Petitioners") because the Petition does not rise to the standard for review which is required under Rule of Court 8.500(b). The action is brought in the name of the People of the State of California by the City Attorneys and County Counsels of the ten public entities listed above pursuant to Code of Civil Procedure section 731. 1
BACKGROUND Pursuant to an opinion issued by the Court of Appeal, the People's only claim in this action is for abatement of a public nuisance; there is no claim for damages. (See County of Santa Clara v. Atlantic Richfield Co. (2006)137 Cal.App.4th 292, 310-311.) Accordingly, the People allege that Petitioners, who are former manufacturers, distributors, or promoters of lead-based paint and coatings (hereinafter "Lead"), concealed the dangers of Lead to the public, mounted a campaign against the regulation of Lead, and promoted Lead for both interior and exterior use. (See The People's Fourth Amended Complaint, 4.) As a result of Petitioners' conduct, there now exists a widespread presence of lead-based paint in homes throughout the State of California, including homes located within the jurisdictions of the ten public entities whose prosecutorial agencies have brought this representative cause of action. (See id. at 7194-96.) The People allege this condition amounts to a public nuisance under Code of Civil Procedure 0 section 731, and seek purely equitable relief in the form of abatement. LEGAL DISCUSSION The Supreme Court may order review of a Court of Appeal decision when "(1) necessary to secure uniformity of decision or to settle an important question of law; (2) [w]hen the Court of Appeal lacked jurisdiction; (3) [w]hen the Court of Appeal decision lacked the 2
concurrence of sufficient qualified justices; (4) [f]or the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order." (California Rules of Court, Rule 8.500(b).) Here, the Petition for Review fails to meet any of the standards proscribed by Rule 8.500(b), and thus a grant of review should be denied.2 Under well-established case law, there is no right to a jury trial for a purely equitable cause of action. (See Wolford v. Thomas (1987) 190 Cal.App.3d 347, 353 ["California courts recognize that a party is not entitled to a jury trial in an action to abate a nuisance."] [citations omitted]; see also People v. Bhakta (2008) 162 Cal.App.4th 973; People v. Frangadakis (1960) 184 Cal.App.2d 540, 545 [holding that because an action to abate a public nuisance did not exist at common law, there was no right to a jury trial in such an action in 1850]; People v. Englebrecht (2001) 88 Cal.App.4th 1236 [no right to jury trial in proceeding to abate street gang activity as a public nuisance].) As set forth in the People's moving papers submitted to the trial court, these cases have served as precedent in California for over 50 years. The fact that these authorities have withstood the test of time and have not been overruled in over five decades suggests 2 The Petition for Review does not address the grounds for review set forth under California Rule of Court, Rule 8.500(b), and the People presume that only Rule 8.500(b)(1) is implicated by the arguments made therein. 3
that Petitioners' analysis is incorrect, rather than that these well-established cases were wrongly decided. (See Schneider v. Schneider (1947) 82 Cal.App.2d 860, 862 ["The rule announced in these cases has never been overruled and is binding upon this court. The mere fact that it has not been questioned in over 63 years is cogent evidence of its soundness and recognition by the legal profession in this state."].) In fact, Petitioners cannot establish that an inconsistency in the law exists where a claimant presents a purely equitable cause of action for a public nuisance. Consequently, there are no grounds for review on this issue. In applying this settled precedent, the issue of whether a jury was required in this case was correctly decided by both the Hon. James P. Kleinberg of the Santa Clara County Superior Court which properly struck Petitioners' jury demands and the Sixth Appellate District which denied Petitioners' Petition for Writ of Prohibition or Other Appropriate Relief. In issuing its decision, the trial court relied on the Supreme Court's opinion in People v. One 1941 Chevrolet Coupe (1951) 37 Ca1.2d 283, 298, which stated unequivocally: "The right to trial by jury did not exist at El common law in a suit to abate a public nuisance. [Citation.] Hence it is not a constitutional right now." (Appendix, Exhibit Z, 111:475 (Order After Hearing of February 6, 2012).) Indeed, California courts have consistently denied parties a jury trial in a public nuisance action where the only remedy 4
sought is abatement. (See e.g. People v. Bhakta (2008) 162 Cal.App.4th 973, 978 ["An action to abate a public nuisance did not exist at common law, and therefore there was no right to a jury trial in such an action in 1849. For this reason, it is not a constitutional right now. (Citation.)"]; People v. Englebrecht (2001) 88 Cal.App.4th 1236 [no right to jury trial in proceeding to abate street gang activity as a public nuisance]; Wolford v. Thomas (1987) 190 Cal.App.3d 347, 353 ["California courts recognize that a party is not entitled to a jury trial in an action to abate a nuisance."]; People ex rel. Sorenson v. Randolph (1979) 99 Cal. App. 3d 183, 189 [denying jury trial in action to abate a public nuisance]; People v. Frangadakis (1960) 184 Cal.App.2d 540, 545 [holding that because an action to abate a public nuisance did not exist at common law, there was no right to a jury trial].) Petitioners' invitation to disturb this long line of precedent based upon their contention that these cases were all wrongly decided should be declined. Petitioners ignore the fundamental concept of established precedent. As explained by Witkin: "The long acceptance of a rule by the courts, as where it is followed in other cases, and by the legal profession and the public generally in governing their conduct and relations is a potent argument in favor of allowing it to stand. Although this factor is particularly significant where the decisions interpret constitutional or 5
statutory provisions, it is also important in cases dealing with other types of questions. The principal reason for following a settled rule is the desirability of certainty in the law,..." (9 Witkin California Procedure Appeal 515 (5th ed. 2010).) Petitioners do not demonstrate why this case warrants a change in the law. CONCLUSION Accordingly, this case does not present an issue that warrants review and the People respectfully request that this Court summarily deny the Petition. Dated: July 23, 2012 COTCHETT, PITRE & McCARTHY, LLP...---/ By: \, 7. < NA qt. FINEMAN Attorneys for Real Parties in Interest The People of the State of California ()
CERTIFICATE OF WORD COUNT (Cal. Rules of Court, Rule 14(c)(1)) The text of this Answer consists of 1,256 words as counted by Word Perfect processing program used to generate this Answer. Dated: July 23, 2012 co4 1VC\ TT, PITRE & 1V,JcCA 2THY, LLP By: \, NA FINEIMAN Attorneys for Real Parties in Interest The People of the State of California
PROOF OF SERVICE I am employed in San Mateo County, which is where service of the document(s) referred to below occurred. I am over the age of 18 and not a party to the within action. My business address is Cotchett, Pitre & McCarthy, LLP, 840 Malcolm Road, Suite 200, Burlingame, California 94010. I am readily familiar with this firm's practices for the service of documents. On this date, I served or caused to be served a true copy of the following document(s) in the manner listed below: ANSWER TO PETITION FOR REVIEW 3 BY MAIL: I caused the sealed envelope containing the aforementioned document(s) to be deposited with the United States Postal Service on that same day in the ordinary course of business. [SEE ATTACHED SERVICE LIST] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Burlingame, California, on July 23, 2012 JoAnne Lein 1
SERVICE LIST Jerome B. Falk, Jr. ARNOLD & PORTER, LLP Three Ernbarcadero Center, 7 th Floor San Francisco, CA 94111 Tel: (415) 471-3100 Fax: (415) 471-3400 jerome.falk@aporter.com Sean Morris ARNOLD & PORTER 777 South Figueroa Street, 44th Floor Los Angeles, CA 90017-5844 Tel: (213) 243-4000 Fax: (213) 243-4199 sean.morris@aporter.com James McManis William Faulkner McMANIS FAULKNER 50 W. San Fernando Street, 10th Floor San Jose, CA 95113 Tel: (408) 279-8700 Fax: (408) 279-3244 jmcmanis@mcmanisfaulkner.com wfaulkner@mcmanisfaulkner.com Allen J. Ruby SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 525 University Ave., Suite 1100 Palo Alto, CA 94301 Tel: 650-470-4500 Fax: 650-470-4570 allen.ruby@skadden.com ATTORNEYS FOR DEFENDANT ATLANTIC RICHFIELD COMPANY ATTORNEYS FOR DEFENDANT ATLANTIC RICHFIELD COMPANY ATTORNEYS FOR DEFENDANT NL INDUSTRIES, INC. ATTORNEYS FOR DEFENDANT CONAGRA GROCERY PRODUCTS COMPANY 2
Clement L. Glynn GLYNN & FINLEY LLP 100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596 Tel: (925) 210-2800 Fax: (925) 945-1975 cglynn@glynnfinley.com Steven R. Williams McGUIRE WOODS LLP One James Center 901 East Cary Street Richmond, Virginia 23219 Tel: (804) 775-1000 Fax: (804) 775-1061 srwilliams@mcguirewoods.com Donald T. Scott BARTLIT, BECK, HERMAN, PALENCHAR & SCOTT 1899 Wynkoop Street, Suite 800 Denver, CO 80202 Tel: (303) 592-3100 Fax: (303) 592-3140 donald.scott@bartlit-beck.com Timothy Hardy 300 West 1 lth Avenue, #8B Denver, CO 80204 Tel: (303) 303-1279 tim.hardy@timet.com Robert A. Mittelstaedt JONES DAY 555 California Street, 26 th Floor San Francisco, CA 94104 Tel: 415-626-3939 Fax: 415-875-5700 ATTORNEYS FOR DEFENDANT E.I. DU PONT E NEMOURS AND COMPANY ATTORNEYS FOR DEFENDANT E.I. DU PONT DE NEMOURS AND COMPANY ATTORNEYS FOR DEFENDANT NL INDUSTRIES, INC. ATTORNEYS FOR DEFENDANT NL INDUSTRIES, INC. ATTORNEYS FOR DEFENDANT THE SHERWIN WILLIAMS COMPANY 3
John W. Edwards, II JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Tel: (650) 739 3912 Fax: (650) 739 3900 jwedwards@jonesday.com Donna R. Ziegler County Counsel Andrew Massey Deputy County Counsel ALAMEDA COUNTY 1221 Oak Street, Suite 450 Oakland, CA 94612-4296 Tel: (510) 272-6700 Fax: (510) 272-5020 andrew.massey@acgov.org John F. Krattli County Counsel Robert E. Ragland Principal Deputy County Counsel Andrea Ross Senior Deputy County Counsel LOS ANGELES COUNTY 500 West Temple St, Suite 648 Los Angeles, CA 90012 Tel: (213) 974-1811 Fax: (213) 626-7446 rragland@counsellacounty.gov aross@counsel.lacounty.gov ATTORNEYS FOR DEFENDANT THE SHERWIN WILLIAMS COMPANY COUNTY OF ALAMEDA LOS ANGELES COUNTY COUNTY OF LOS ANGELES 4
Charles J. McKee County Counsel William M. Litt Deputy County Counsel COUNTY OF MONTEREY 168 West Alisal Street 3rd Floor Salinas, CA 93901 Tel: (831) 755-5045 Fax: (831) 755-5283 LittWM@co.monterey.ca.us Barbara Parker City Attorney William Simmons OAKLAND CITY ATTORNEY One Frank H. Ogawa Plaza 6th Floor Oakland, CA 94612 Tel: (510) 238-6520 Fax: (510) 238-6500 wsimmons@oaklandcityattorney.org Jan Goldsmith City Attorney Daniel F. Bamberg Chief Deputy City Attorney Paul Prather, Deputy City Attorney OFFICE OF THE SAN DIEGO CITY ATTORNEY CITY OF SAN DIEGO 1200 Third Avenue # 1100 San Diego, CA 92101 Tel: (619) 236-6220 Fax: (619) 236-7215 dbamberg@sandiego.gov pprather@sandiego.gov COUNTY OF MONTEREY OAKLAND CITY ATTORNEY CITY OF OAKLAND OFFICE OF THE SAN DIEGO CITY ATTORNEY CITY OF SAN DIEGO 5
Dennis J. Herrera City Attorney Owen J. Clements Chief of Special Litigation Erin Bernstein Deputy City Attorney SAN FRANCISCO CITY ATTORNEY Fox Plaza 1390 Market Street, Seventh Floor San Francisco, CA 94102 Tel: (415) 554-3800 Fax: (415) 554-3985 owen.clements@sfgov.org erin.bernstein@sfgov.org John C. Beiers County Counsel Rebecca M. Archer Deputy County Counsel COUNTY OF SAN MATEO 400 County Center Sixth Floor Redwood City, CA 94063 Tel: (650) 363-4686 (Rebecca's direct) Fax: (650) 363-4034 rmarcher@smcgov.org SAN FRANCISCO CITY ATTORNEY CITY AND COUNTY OF SAN FRANCISCO COUNTY OF SAN MATEO
Lori E. Pegg Greta Hansen Lead Deputy County Counsel Jenny S. Lam Deputy County Counsel, SANTA CLARA COUNTY 70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 Tel: (408) 299-5900 Fax: (408) 291-7240 greta.hansen@cco.sccgov.org jenny.lam@cco.sccgov.org Dennis Bunting County Counsel SOLANO COUNTY Solano County Courthouse 675 Texas Street, Suite 6600 Fairfield, CA 94533 Tel: (707) 784-6140 Fax: (707) 784-6862 dwbunting@solanocounty.com Leroy Smith County Counsel Eric Walts Assistant County Counsel COUNTY OF VENTURA 800 S. Victoria Avenue L/C #1830 Ventura, CA 93009 Tel: 805-654-2580 Fax: 805-654-2185 eric.walts@ventura.org COUNTY OF SANTA CLARA SOLANO COUNTY COUNTY OF VENTURA 7
Lori E. Pegg, ActingCounty Counsel Greta Hansen Lead Deputy County Counsel Jenny S. Lam Deputy County Counsel, SANTA CLARA COUNTY 70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 Tel: (408) 299-5900 Fax: (408) 291-7240 greta.hansen@cco.secgov.org jenny.lam@cco.sccgov.org Dennis Bunting County Counsel SOLANO COUNTY Solano County Courthouse 675 Texas Street, Suite 6600 Fairfield, CA 94533 Tel: (707) 784-6140 Fax: (707) 784-6862 dwbunting@solanocounty.com Leroy Smith County Counsel Eric Walts Assistant County Counsel COUNTY OF VENTURA 800 S. Victoria Avenue L/C #1830 Ventura, CA 93009 Tel: 805-654-2580 Fax: 805-654-2185 eric.walts@ventura.org, COUNTY OF SANTA CLARA SOLANO COUNTY COUNTY OF VENTURA 7
Fidelma Fitzpatrick MOTLEY RICE LLC 321 South Main Street Providence, RI 02903-7108 Tel: (401) 457-7700 Fax: (401) 457-7708 ffitzpatrick@motleyrice.com Mary Alexander Jennifer L. Fiore MARY ALEXANDER & ASSOCIATES 44 Montgomery Street, Suite 1303 San Francisco, CA 94104 Tel: (415) 433-4440 Fax: (415) 433-5440 malexander@maryalexanderlaw.com jfiore@maryalexanderlaw.com Peter G. Earle LAW OFFICE OF PETER EARLE, LLC 839 N. Jefferson Street, Suite 300 Milwaukee, WI 53202-3744 Tel: (414) 276-1076 Fax: (414) 899-9521 Peter@Earle-Law.com Santa Clara County Superior Court Hon. James P. Kleinberg 191 N. First Street San Jose, CA 95113 California Court of Appeal Sixth Appellate District, Division One 333 West Santa Clara Street Suite 1060 San Jose, CA 95113 ATTORNEYS FOR THE PEOPLE OF THE STATE OF CALIFORNIA, ACTING BY AND THROUGH THE CITY ATTORNEY FOR THE CITY AND COUNTY OF SAN FRANCISCO AND THE COUNTY OF LOS ANGELES ATTORNEYS FOR THE PEOPLE OF THE STATE OF CALIFORNIA, ACTING BY AND THROUGH THE CITY ATTORNEY FOR THE CITY AND COUNTY OF SAN FRANCISCO ATTORNEYS FOR THE PEOPLE OF THE STATE OF CALIFORNIA 8