Full opinion text
ORDER ON DEFENDANTS’ MOTIONS TO DISMISS & MOTION TO JOIN NECESSARY PART ANTHONY W. ISHII, Senior District Judge. This is an environmental law case that arises from the chemical contamination of property associated with a dry cleaning business. Plaintiffs (collectively “Coppola”) have brought suit against the City of Visalia (“the City”), and the California Water Service Company (“Cal Water”), and owners and former owners of nearby properties, including Martin and Martin Properties (“Martin”). The active complaint is the Third Amended Complaint (“TAC”). The TAC alleges 15 causes of action: (1) the federal Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.) (“CERCLA”); (2) the California Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health and Safety Code § 25300 et seq.) (“HSAA”); (3) negligence; (4) negligence per se; (5) private nuisance; (6) nuisance per se; (7) contribution; (8) indemnification; (9) continuing trespass; (10) Water Code § 13350; (11) waste; (12) public nuisance; (13) public nuisance per se; (14) declaratory relief; and (15) dangerous condition of public property. Before the Court are three motions to dismiss and one motion to join a necessary party, which have been brought by three defendants — the City, Cal Water, and Martin. For the reasons stated below, the motions to dismiss will be granted, but the motion to join will be denied. BACKGROUND From the TAC, Coppola owns the real property and the dry cleaning business, One Hour Martinizing, located at 717 West Main Street (“717 W. Main”), Visalia, California. Since 1995, Martin has owned the real property located at 110 North Willis Street (“110 N. Willis”), Visalia, California. 110 N. Willis currently houses office space and is located within 0.08 miles of 717 W. Main. Millers Dry Cleaners previously operated at 110 N. Willis and was owned by Defendants Harley and Cheryl Miller. Based on judicially noticed documents, Millers Dry Cleaners began operation in 1959. See Martin Request For Judicial Notice (“Martin RJN”) Ex. C § 2.3. Millers Dry Cleaners is no longer in operation at 110 N. Willis. At 119 South Willis Street (“119 S. Willis”), Visalia, California is another dry cleaning facility, Paragon Cleaners. 119 S. Willis is located 0.1 miles from 717 W. Main. Cal Water owns and operates public drinking water systems throughout California, including the City. Cal Water owned and operated Well CWS 02-03 (“the Well”) until 2005, at which time it was abandoned by Cal Water. The Well is adjacent to 717 W. Main. On October 28, 2009, the California Department of Toxic Substances Control (“DTSC”) informed Coppola that it was investigating the occurrence of tetrachloroethylene, also known as perchloroethylene (“PCE”), in the soil and groundwater at 717 W. Main. PCE is a hazardous substance. Apparently, it was later determined that the soil and groundwater both at and near 717 W. Main was contaminated with PCE. Coppola alleges that the PCE was released due to the dry cleaning activities at 119 S. Willis and 110 N. Willis. Coppola also alleges that the City owns and operates the sewer system at and around 717 W. Main. The operation of the sewer system led to the release of PCE. The sewer main and appurtenances from 717 W. Main have breaks, cracks, leaks, sags, and/or defective joints, which permitted the PCE to escape and spread into the environment. Finally, Coppola contends that Cal Water’s operation of the Well led to the release of PCE. Prior to Cal Water abandoning the Well, PCE concentrations were above the Method Detection Limit. Cal Water’s operation of the Well caused PCE to move to previously uncontaminated areas beneath the water table, which exacerbated the contamination plume. Coppola seeks damages from the Defendants, including contribution and indemnification, associated with soil and groundwater contamination. LEGAL FRAMEWORK Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiffs “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marcean v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir.2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir.1997). However, the Court is not required “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Seis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). To avoid a Rule 12(b)(6) dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is hable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. The Ninth Circuit has explained Iqbal and Twombly: First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011). In deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally limited to reviewing only the complaint, but it may take judicial notice of public records outside the pleadings, review materials which are properly submitted as part of the complaint, and review documents that are incorporated by reference in the Complaint if no party questions their authenticity. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.2001). If a Rule 12(b)(6) motion is granted, “[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc). In other words, leave to amend need not be granted where amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.2002). I. Martin’s Motion To Dismiss 1. 1st Cause of Action — CERCLA Defendant’s Argument Martin argues that Coppola has failed to properly allege a CERCLA § 9607(a) claim for several reasons. First, there are no facts alleged that show a release or a threatened release of any hazardous substance from Martin’s property. Second, Coppola has not alleged that a release or threatened release caused Coppola to incur response costs that were necessary and consistent with the national contingency plan. That is, there is no nexus between any release from the Martin property and the costs incurred by Coppola. Third, the TAC is little more than a bare recitation of legal elements that do not show what, where, or when hazardous substances were released from the Martin property. Fourth, Coppola is barred from asserting a cause of action under § 9607(a), but instead is limited to contribution under § 9613(f), because the costs incurred by Coppola were compelled by a settlement/administrative order. Finally, because the § 9607(a) claim fails, the dependent § 9613(g)(2) claim also fails. Plaintiffs Opposition Coppola argues that a prima facie § 9607(a) case has been properly alleged. The TAC alleges that 110 N. Willis is a facility. The TAC alleges that a release of hazardous substances occurred during the operations of Cheryl and Harley Miller. The TAC alleges that DTSC was investigating the presence of hazardous substances at 717 W. Main and that necessary response costs, including investigative and remediation expenses, were incurred pursuant to DTSC oversight. Martin is the current owner of 110 N. Willis. Finally, because the TAC properly alleges a § 9607(a) claim, a claim for declaratory relief under § 9613(g) is proper. Coppola also argues that they voluntarily entered into the administrative order with DTSC and without resolution of their liability. Because the order was voluntary and no liability was resolved, § 9613(f) does not apply. Legal Standards a. CERCLA § 9613(f)(3)(B) Section 9613(f)(3)(B) permits a “ ‘person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement’ to seek contribution from any person who has not so resolved their liability.” Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir.2011). Although the Ninth Circuit does not appear to have addressed the issue, most courts hold that persons who have resolved their CERCLA liability to the United States or a State in an administrative or judicially approved settlement may only bring a contribution claim under § 9613(f), and may not bring a claim under § 9607(a). E.g. Bernstein v. Bankert, 702 F.3d 964, 978-79 (7th Cir.2012). However, in order for § 9613(f)(3)(B) to apply, the purported settlement must resolve CERCLA liability, resolution of only state law liability is insufficient. See W.R. Grace & Co. — Conn, v. Zotos Int’l, Inc., 559 F.3d 85, 91 (2d Cir.2009); Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90, 95-96 (2d Cir.2005); Trinity Indus. v. Chi. Bridge & Iron Co., 867 F.Supp.2d 754, 761 (W.D.Pa. 2012); Differential Development-1994, Ltd. v. Harkrider Distrib. Co., 470 F.Supp.2d 727, 739 & n. 13 (S.D.Tex.2007). b. CERCLA § 9607(a) To establish a prima facie claim for recovery of response costs under § 9607(a), a private-party plaintiff must demonstrate: (1) the site on which the hazardous substances are contained is a “facility,” as defined by CERCLA § 9601(9); (2) a “release” or “threatened release” of any “hazardous substance” from the facility has occurred; (3) such “release” or “threatened release” has caused the plaintiff to incur response costs that were “necessary” and “consistent with the national contingency plan”; and (4) the defendant is within one of four classes of persons subject to the liability provisions of § 9607(a). City of Colton v. Am. Promotional Events, Inc.-West, 614 F.3d 998, 1002-03 (9th Cir.2010); Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 870-71 (9th Cir.2001). A “release” means “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment....” 42 U.S.C. § 9601(22). CERCLA imposes strict liability for environmental contamination upon four broad classes of “potentially responsible parties”: (1) the owner and operator of a vessel or a facility; (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of; (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances; and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.... 42 U.S.C. § 9607(a)(l)-(4); Burlington Northern & Santa Fe Ry. v. United States, 556 U.S. 599, 608-09, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009). CERCLA’s provisions are to be given a liberal construction and interpretation. See Hanford Downwinders Coalition v. Dowdle, 71 F.3d 1469, 1481 (9th Cir.1995); 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1363 (9th Cir.1990). A plaintiff need not allege the particular manner in which a “release” or “threatened release” has occurred, but a plaintiff must describe the specific response costs that have been incurred. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1153-54 (9th Cir.1989). A private plaintiff (i.e. not the United States, a State, or an Indian Tribe) must prove that the response costs are consistent with the national contingency plan. Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 950 (9th Cir.2002); Washington Dept. of Transp. v. Washington Natural Gas Co., 59 F.3d 793, 799-800 (9th Cir.1995). “Response costs are considered ‘necessary’ when ‘an actual and real threat to human health or the environment exists,’ ” and are considered “consistent with the [national contingency plan] ‘if the action, when evaluated as a whole, is in substantial compliance with it.’ ” City of Colton, 614 F.3d at 1003. Further, a complaint should include a description of the “facility” (including the location and activity of the “facility”), the kind(s) of hazardous substances that were “released” or are “threatened to be released” from the “facility,” the time frame of any releases, arrangements, or disposals, and, if known, whether a site has been declared a hazardous waste site. See 42 U.S.C. § 9607(a); Ascon Properties, 866 F.2d at 1156; Arkema, Inc. v. Anderson Roofing Co., 719 F.Supp.2d 1318, 1332 (D.Or.2010). Finally, the complaint should allege sufficient facts to show that a defendant is one of the four classes of “potentially responsible parties.” See Long Beach Unified Sch. Dist. v. Dorothy B. Godwin California Living Trust, 32 F.3d 1364, 1366-70 (9th Cir.1994) (upholding Rule 12(b)(6) dismissal where the owner of an easement was not one of the four types of potentially responsible parties). Discussion a. Application of § 9613(g)(2) Coppola entered into an Imminent and Substantial Endangerment Order (“Consent Order”) with DTSC in June 2011. See Martin RJN Ex. A. The Consent Order explains the DTSC’s statutory authority, identifies PCE as a hazardous substance that is endangering the area, requires studies and clean up efforts by Coppola, and provides for penalties for non-compliance. Nevertheless, the Consent Order does not appear to resolve or even address CERCLA liability. See id. It appears that the Consent Order mentions CERCLA twice. See id. at ¶¶ 5.2, 7.0. Those paragraphs deal with either required studies (¶ 5.2) or the contents of defenses to be included as part of a notice of intent to comply (¶ 7.0). Neither paragraph addresses CERCLA liability. See id. Further, the Consent Order states that it does not constitute “a satisfaction or release from liability,” and that DTSC expressly does not waive the right to take “any further actions authorized by law.” See id. at ¶¶ 6.9, 6.15. Without language that actually deals with CERCLA liability, the Consent Order at best appears to address only state law issues. Because Martin has not shown that the Consent Order settles any CERCLA liability to the state of California, § 9613(f)(3)(B) does not apply and dismissal is inappropriate. See W.R. Grace, 559 F.3d at 91; Trinity Indus., 867 F.Supp.2d at 761. b. Sufficiency of Allegations for § 9607(a) Liability With respect to the first element, the TAC alleges that 110 N. Willis was once an operational dry cleaning business, and is a “facility” as defined by § 9601(14). See TAC ¶¶ 24, 25, 42. The term “facility” is broadly defined and includes “any building, structure, installation, equipment, pipe, pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, etc.” 42 U.S.C. § 9601(9). Martin does not challenge the adequacy of these allegations, nor does Martin argue that 110 N. Willis is not a “facility.” Accordingly, the first element has been adequately pled. See Ascon Properties, 866 F.2d at 1156. As to the second element, the TAC alleges that hazardous substances were released at 110 N. Willis and that those hazardous substances spread to 717 N. Main. See TAC ¶¶ 50, 51. Coppola need not allege the precise manner of the release. See Ascon Properties, 866 F.2d at 1153. However, there is no time frame alleged for when the releases occurred. At the pleading stage, a time frame need not be alleged with pinpoint precision, but a general time frame, to the best of Coppola’s ability, should be included. Cf. id. at 1156. Additionally, the TAC alleges that Coppola received a letter about PCE contamination, that PCE is located at 110 N. Willis, and that PCE is a hazardous substance. See TAC ¶¶ 19, 42. The only hazardous substance identified in the Consent Order is PCE. See Martin RJN Ex. A at §§ 2.4, 2.5. Despite this, the first cause of action contains numerous allegations about releases and disposal of “hazardous substances.” The use of the plural “substances,” without any identification of what other hazardous substanee(s) may be at issue, is insufficient. It is entirely unclear what other hazardous substances could be at issue. Although the Court has no difficulty in determining that PCE is a hazardous substance that is at issue, that is all that can be said. In other words, PCE is the only hazardous substance in the TAC for which there is fair notice. If Coppola has reason to believe that hazardous substances other than PCE are it issue, then they should expressly identify those substances. ' Without further identification, the plural term “hazardous substances” is ambiguous and an insufficient legal conclusion. For these reasons, the second element is inadequately pled. With respect to the third element, the TAC alleges that hazardous substances spread from 110 N. Willis to 717 N. Main, and that Coppola has incurred and will incur response costs. See TAC ¶¶ 50, 51, 56. The TAC identifies the response costs as including fees for removal, clean up, and investigation, see TAC ¶ 56, each of which are among the costs that are recoverable under CERCLA. See 42 U.S.C. § 9601(23); Ascon Properties, 866 F.2d at 1154; Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892 (9th Cir.1986). The TAC also alleges that the response costs are a result of contamination to Coppola’s property by the defendants, and that the response costs are necessary and consistent with the national contingency plan. See id. at ¶¶ 56, 57. Finally, the TAC alleges that Coppola was informed of the PCE contamination by the DTSC in October 2009, and the Consent Order shows that Coppola agreed to remediation efforts at what appears to be 717 W. Main. See id. at ¶ 19; Martin RJN Ex. A §§ 1.2, 5.1.1. These allegations, combined with the Consent Order, are sufficient to allege that Coppola has incurred response costs that are necessary and consistent with the national contingency plan, and that those response costs were undertaken due to releases that occurred at 110 N. Willis. The third element has been adequately pled. As to the fourth element, the First Cause of Action generally states that each defendant owns or operates a facility, arranged for the disposal or treatment of hazardous substances, and/or accepted hazardous substances for transport. See TAC ¶45. Specifically as to Martin, the First Cause of Action alleges that Martin owned 110 N. Willis at the time hazardous substances were released, arranged for the disposal and release of hazardous substances, and was in a position to prevent tenants from releasing hazardous substances. See id. at ¶53. These allegations seem to indicate that Coppola is alleging that Martin is a potentially responsible party under § 9607(a)(2) and § 9607(a)(3). However, as part of the general allegations, the TAC also alleges that Martin owned 110 N. Willis from 1995 to the present. See id. at ¶ 13. That allegation could support liability under § 9607(a)(1). See California Dep’t of Toxic Substances Control v. Hearthside Residential Corp., 613 F.3d 910, 912-13 (9th Cir.2010) (holding that § 9607(a)(1) applies only to current owners or operators). The TAC’s allegations are somewhat ambiguous as to which category or categories of potentially responsible persons Martin may be. In its motion to dismiss, Martin argued that Coppola had not alleged a prima facie CERCLA case and, of particular relevance, that there were no facts alleged to show that Martin arranged for or consented to the disposal of any hazardous substance. In opposition, Coppola only argued that Martin was a potentially responsible person under § 9607(a)(1) as an owner of a facility. See Doc. No. 100 at 5:26-6:12. Coppola did not attempt to classify Martin as any other type of potentially responsible person, or to defend any other allegations regarding disposal or arrangement by Martin. The Court takes Coppola’s opposition to mean that they are only attempting to utilize § 9607(a)(1) against Martin. Cf. Cortez v. New Century Mortg. Corp., 2012 WL 368647, *4 n. 3, 2012 U.S. Dist. LEXIS 13469, *12 n. 3 (N.D.Cal. Feb. 3, 2012) (holding that the plaintiffs failure to respond to an argument that characterized the nature of a claim was a concession of the defendant’s argument); In re Fresh & Process Potatoes Antitrust Litig., 834 F.Supp.2d 1141, 1169 (D.Idaho 2011) (same). With this understanding of the TAC, the allegation that Martin has owned 110 N. Willis from 1995 to the present is sufficient to allege liability under § 9607(a)(1). See Hearthside, 613 F.3d at 912-13. Nevertheless, there remains the problem of the allegations in ¶ 53. Because this cause of action has not been adequately pled irrespective of ¶ 53, the Court will require Coppola to eliminate the allegations that do not actually reflect the potentially responsible person theories that are being pursued against Martin (and all other defendants). In particular, ¶ 53 should be changed to allege liability under § 9607(a)(1), and not liability under §§ 9607(a)(2) or (a)(3). In sum, the TAC does not sufficiently allege the second element of a prima facie case, and there are extraneous allegations pertaining to the fourth element. Martin’s motion to dismiss this first cause of action will be granted. Because it is not apparent that amendment would be futile, dismissal will be with leave to amend. See Gompper, 298 F.3d at 898. c. Declaratory Relief Under § 9618(g) Coppola defends the request for declaratory relief by contending that it has adequately alleged a CERCLA claim under § 9607(a). However, as discussed above, Coppola has not adequately alleged a § 9607(a) claim. In the absence of a valid § 9607(a) claim, declaratory relief under § 9613(g)(2) is unavailable. Union Station Assocs. LLC v. Puget Sound Energy, Inc., 238 F.Supp.2d 1226, 1230 (W.D.Wash.2002); see also Chevron Envl. Mgmt. Co. v. BEK Corp., 880 F.Supp.2d 1083, 1091 (E.D.Cal.2012). Dismissal of the request for declaratory relief is appropriate. See id. 2. 2nd Cause of Action — HSAA Defendant’s Argument Martin argues that each of its CERCLA arguments also applies to the HSAA cause of action. Further, CERCLA precludes a double recovery. Because Coppola’s HSAA claims do not have a separate and independent basis from the CERCLA claims, no recovery is permitted under the HSAA. The HSAA claims should be dismissed without leave to amend. Plaintiff’s Opposition Coppola argues that, because its § 9607(a) claim is properly alleged, so too is the HSAA cause of action. As to Martin’s double recovery argument, the case relied upon by Martin dealt with a findings of fact and conclusions of law following a bench trial, it did not deal with the sufficiency of a complaint. At the pleading stage, a party is entitled to allege as many separate claims as may exist, irrespective of consistency. Alternative pleading is permitted. The prohibition against double recovery does not apply at this stage of the proceedings. Discussion The HSAA is “California’s versions of [CERCLA].” Ameron Inter’l Corp. v. Insurance Co. of Pa., 50 Cal.4th 1370, 1379, 118 Cal.Rptr.3d 95, 242 P.3d 1020 (2010). Although the HSAA is not identical to CERCLA, Foster-Gardner, Inc. v. National Union Fire Ins. Co., 18 Cal.4th 857, 865 n. 4, 77 Cal.Rptr.2d 107, 959 P.2d 265 (1998), the HSAA expressly incorporates the same liability standards, defenses, and classes of responsible persons as those set forth in CERCLA. See Gregory Vill. Partners, L.P. v. Chevron U.S.A., Inc., 805 F.Supp.2d 888, 898 (N.D.Cal.2011); United Alloys, Inc. v. Baker, 797 F.Supp.2d 974, 1004-05 (C.D.Cal.2011); Adobe Lumber, Inc. v. Heilman, 658 F.Supp.2d 1188, 1192-93 (E.D.Cal.2009). As such, the HSAA is generally interpreted consistent with CERCLA. United Alloys, 797 F.Supp.2d at 1004-05; Adobe Lumber, 658 F.Supp.2d at 1192-93. Here, for the same reasons that Coppola’s CERCLA cause of action fails, so too fails the HSAA. As for Martin’s request that dismissal be without leave to amend, CERCLA prohibits a person from recovering compensation for the same removal costs or damages or claims pursuant to other state or federal law. 42 U.S.C. § 9614(b); Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1189 (9th Cir.2000). That is, CERCLA prohibits a party from obtaining a double recovery. United Alloys, 797 F.Supp.2d at 1005. Courts appear to be split on the issue, of whether CERCLA’s double recovery bar requires dismissal of related state causes of action under Rule 12(b)(6). Cf. Board of County Comm’rs of La Plata Cnty. v. Brown Group Retail, Inc., 598 F.Supp.2d 1185, 1193 (D.Colo.2009) (denying Rule 12(b)(6) motion and permitting the plaintiff to plead both state and CERCLA claims) with Ashtabula River Corp. Group II v. Conrail, Inc., 549 F.Supp.2d 981, 985-86 (N.D.Ohio 2008) (granting Rule 12(b)(6) motion and prohibiting state law claim due to operation of CERCLA’s double recovery bar). However, where a plaintiff seeks damages/costs under state law that do not overlap and are separate from CERCLA damages/costs, courts will not dismiss the state law claims. See City of Waukegan v. National Gypsum Co., 587 F.Supp.2d 997, 1011 (N.D.Ill.2008); New York v. Ametek, Inc., 473 F.Supp.2d 432, 433-34 (S.D.N.Y.2007). Coppola recognizes that it cannot obtain a double recovery for the same recoverable costs under both CERCLA and HSAA. See Doc. No. 100 at 12:12-19. However, neither Martin nor Coppola explain whether Coppola is seeking damages under HSAA that are different from those sought under CERCLA. In the absence of clarification on the damages issue, the Court will not permanently dismiss the HSAA claims due to CERCLA’s double recovery bar. For now, because it is unclear whether Coppola is seeking a recovery for separate, non-overlapping costs/damages, the Court will dismiss the HSAA claim with leave to amend. 3. 3rd Cause of Action — Negligence Defendant’s Argument Martin makes several arguments against this cause of action. First, Coppola has not alleged any facts to show that Martin owed them a duty or that Martin somehow breached that duty. There are no facts alleged that show when, how, or in what way Martin acted negligently. Second, Coppola has not adequately addressed an EPA report that shows that there was no discharge from the 110 N. Willis. Third, Coppola seeks damages for the cost of remediation efforts, which is pure economic loss. Thús, the economic loss doctrine bars Coppola from recovering damages. Plaintiffs Opposition Coppola argues that the TAC alleges that Millers Dry Cleaners discharged hazardous substances. There has been down gradient migration to 717 N. Main. Martin was in a position to prevent the release of hazardous substances. Martin knew or should have known that PCE is hazardous and dangerous and that there was a plume under the City. Martin had a duty to ensure proper clean up of spilled solvents and to ensure that contamination discharged from the 110 N. Willis did not escape. However, Martin was negligent in its operation of 110 N. Willis because it allowed hazardous substances to escape, which caused injury to the environment and to Coppola. With respect to the EPA determination, the EPA states that PCE was found in groundwater samples collected from 110 N. Willis’s down gradient well significantly above background. Further, in the Preliminary Assessment of 110 N. Willis by Weston Solutions, PCE was detected at 9.1 micrograms per liter (a concentration above “actionable limits”) within 50 feet west of the site. This indicates a release from 110 N. Willis above action levels. Although the EPA disclaims the findings of the Preliminary Assessment, EPA acknowledged that no additional steps were necessary unless new information that warranted further review was discovered. Although unknown to EPA, Coppola has discovered evidence that former Millers Dry Cleaners employees used and disposed of PCE at 110 N. Willis. The EPA opinion does not by itself warrant dismissal as it appears that the inaction by EPA is at odds with its data. Legal Standard “Negligence is the failure to use reasonable care to prevent harm to oneself or to others.... A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.” Raven H. v. Gamette, 157 Cal.App.4th 1017, 1025, 68 Cal. Rptr.3d 897 (2007); Judicial Council of California Civil Jury Instructions (“CACI”) (Fall 2012 Ed.)— § 401. Thus, the elements of actionable negligence are: (1) a legal duty to use due care; (2) a breach of that duty; (3) causation; and (4) damages. See Ladd v. County of San Mateo, 12 Cal.4th 913, 917, 50 Cal.Rptr.2d 309, 911 P.2d 496 (1996); Brown v. Ransweiler, 171 Cal.App.4th 516, 534, 89 Cal. Rptr.3d 801 (2009). Further, “economic loss alone, without physical injury, does not amount to the type of damage that will cause a negligence or strict liability cause of action to accrue.” County of Santa Clara v. Atlantic Richfield Co., 137 Cal. App.4th 292, 318, 40 Cal.Rptr.3d 313 (2006); see also Zamora v. Shell Oil Co., 55 Cal.App.4th 204, 210, 63 Cal.Rptr.2d 762 (1997). Discussion a. EPA Documents The parties have submitted reports, letters, and assessments from the EPA related to 110 N. Willis. Both parties request that the Court take judicial notice of the documents as government records. Because neither side objects to the requests for judicial notice, the Court will grant the motions and take judicial notices of the EPA documents. Coppola’s RJN Ex. A is a July 2008 Preliminary Assessment and a September 2008 Remedial Site Assessment Decision relating to 110 N. Willis that was performed by Weston Solutions. See Coppola RJN Ex. A. The Preliminary Assessment indicates that a groundwater sample collected 50 feet from 110 N. Willis contained 9.1 micrograms per liter of PCE. See id. at p. 7. Based in part on the 9.1 reading, the Remedial Site Assessment Decision concluded that an additional assessment was needed under CERCLA and that the matter was a “higher priority.” See id. at p. 11. It is unknown whether Martin ever saw the Preliminary Assessment or corresponding Remedial Site Assessment Decision. Martin’s RJN Ex. B is an October 2009 letter from EPA to Martin. See Martin’s RJN Ex. B. In pertinent part, the letter stated, “Based on currently available information contained in the enclosed report, EPA has determined that no further assessment is warranted. Although EPA has determined that this site does not qualify for Superfund listing, the State of California may require further assessment or cleanup of this site under State law.” Id. The letter enclosed an August 2009 Remedial Site Assessment Decision. See id. at p. 4. The Assessment Decision indicates that further remedial site assessment under CERCLA is not required because no further remedial action is planned. See id. In pertinent part, the Assessment Decision stated that samples were taken at 110 N. Willis in 2009. See id. PCE was detected at concentrations below background in soil samples drilled from the site, there was no evidence of a release of PCE from the site to surface water, and although PCE was detected from the on-site down-gradient well, the concentration was below the regulatory limit for drinking water. See id. The Assessment Decision concluded in part, “no additional remedial steps under the Federal Superfund program will be taken at the site unless new information warranting superfund consideration ... are disclosed.... Archived sites may be returned to the CERCLIS site inventory if new information necessitating further Superfund consideration is discovered.” Id. Martin argues that the 2009 EPA letter determined that there were no PCE discharges from 110 N. Willis, and that this finding should preclude not only the negligence claim, but the lawsuit as a whole. See Martin RJN Ex. B. There is no doubt that the 2009 EPA letter is significant. The letter raises substantial questions about whether Martin should have known of PCE releases, whether a failure to act prior to October 2009 was reasonable given the low and acceptable levels of PCE actually detected, and whether Martin was reasonable in not acting after October 2009 because the EPA determined that the detected PCE at 110 N. Willis was below regulatory limits. However, the parties have not adequately established what precise effect the 2009 EPA letter (or any EPA document) should have in this case. Citation to the EPA documents, coupled with arguments that are unsupported by citation to authority, is not helpful. In the absence of cited authority, the Court will not hold that the 2009 EPA letter per se precludes litigation against Martin. The 2009 EPA letter’s final paragraph stated that the decision was based on “the currently available information,” and the 2009 Assessment Decision states that sites may be returned for consideration “if new information necessitating further Superfund consideration is discovered.” See Martin RJN Ex. B. This indicates that EPA’s determination is subject to change if new information is discovered. Additionally, the 2009 Assessment Decision indicated that PCE was detected in both soil samples and samples from the down-gradient well collected at 110 N. Willis. Only with respect to the surface water was there no evidence of PCE. See id. Although the levels of PCE were not sufficient to warrant further assessment and were within regulatory limits, see id., PCE was nevertheless found, meaning that PCE was released to some degree at 110 N. Willis. Given that the 2009 EPA letter indicates that its determinations are subject to reconsideration based on new information, and considering the absence of any authority as to the effect or authority that the 2009 EPA letter has, the Court will not preclude litigation per se based on that letter. Dismissal without leave to amend based on the 2009 EPA letter is inappropriate. Nevertheless, the 2009 EPA letter appears quite significant and the Court will consider all of the EPA documents in evaluating the TAC’s allegations. b. Negligence Allegations The TAC alleges sudden and accidental releases of PCE occurred that resulted in the contamination of 717 N. Main. See TAC ¶ 66. The TAC alleges that these releases are attributable to all Defendants’ negligence in failing to properly use solvents, supervise operation of equipment, and clean up spilled solvents. See id. The TAC also alleges that all defendants breached a duty by causing, permitting, and/or contributing to the contamination at 717 N. Main and other nearby land and water. See TAC ¶ 67. Finally, the TAC alleges that, as a proximate result of all Defendants’ negligence, Coppola has been damaged, including costs to respond to the hazardous substance contamination in and around 717 N. Main. See id. at 68. A fair reading of these allegations indicates that Coppola is identifying duties to use due care to not contaminate 717 N. Main and surrounding land and water, and also duties to use due care to properly dispose of and clean up hazardous substances. See TAC ¶ 66; see also Walnut Creek Manor, LLC v. Mayhew Center, LLC, 2010 WL 653561, *l-*2, 2010 U.S. Dist. LEXIS 22988, *4-*5 (N.D.Cal. Feb. 22, 2010). Thus, the Court disagrees with Martin that the TAC fails to identify any duty. Further, the TAC fairly alleges that Coppola suffered damages as a proximate result of Defendants’ conduct. See TAC ¶ 68. Despite Martin’s argument that there is only economic loss and not physical injury alleged, the negligence cause of action indicates that there is PCE “contamination in” 717 N. Main, and allegations incorporated by reference discuss contamination of soil and groundwater spreading to other properties, including 717 N. Main. TAC ¶¶ 24, 25, 66, 68. A fair reading of these allegations is that the land of 717 N. Main has been contaminated. The chemical contamination of a person’s land is sufficient to show a physical injury to the land. See California Dept. of Toxic Substances Control v. Payless Cleaners, 368 F.Supp.2d 1069, 1084 (E.D.Cal.2005); San Francisco Unified Sch. Dist. v. W.R. Grace & Co., 37 Cal. App.4th 1318, 1327, 44 Cal.Rptr.2d 305 (1995). Nevertheless, there are problems with the breach of duty element. The TAC and the opposition indicate that dry cleaning activities led to the release of PCE and the contamination of 717 N. Main. See TAC ¶¶ 24, 25; Doc. No. 100 at 13:9-10. In one of the paragraphs incorporated by reference, Coppola alleges that Martin was in a position to stop its tenants’ disposal of hazardous substances. See TAC ¶ 53. Martin’s reply indicates that Millers Dry Cleaners had ceased operations years prior to Martin’s acquisition of 110 N. Willis, but does not cite anything in support of that assertion. The TAC does not allege when Millers Dry Cleaners actually ceased operations, nor does it expressly allege that Millers Dry Cleaners or Harley Miller or Cheryl Miller were tenants of Martin. Nevertheless, the TAC does state that Martin did not acquire 110 N. Willis until 1995, and judicially noticed documents show that 110 N. Willis is currently just office space and that Millers began their dry cleaning business in 1959. See Martin RJN Ex. C § 2.4. The judicially noticed documents, combined with Martin’s assertion that it acquired the building after Millers Dry Cleaners ceased operations, raise questions about whether Millers Dry Cleaners or Harley Miller or Cheryl Miller were ever tenants of Martin. If the Millers were never tenants, then there is no dry cleaning activity that Martin could have monitored. Additionally, the 2009 EPA letter to Martin indicated that no further assessment of 110 N. Willis was warranted and that the site did not qualify for Superfund listing. See Martin RJN Ex. B. The 2009 EPA determination appears to be based on the fact the levels of PCE detected at 110 N. Willis were within regulatory limits. See id. at p. 4. The 2009 EPA letter and the uncertain relationship between Martin and Millers Dry Cleaner raise the legitimate question of whether Martin knew or should have known that PCE was escaping from 110 N. Willis. Upon first blush, doing nothing further regarding PCE in reliance on the 2009 EPA letter would appear to be reasonable because the levels detected at 110 N. Willis were within regulatory limits. Without more allegations indicating that Martin knew or should have known that PCE was escaping from 110 N. Willis and that Martin did not act reasonably to stop the escape, the TAC does not adequately allege a breach of duty. Further, assuming that Millers were tenants of Martin, the TAC only indicates that Martin was in a position to stop release. Negligence is essentially the failure to act reasonably under the circumstances. See Raven H., 157 Cal.App.4th at 1025, 68 Cal.Rptr.3d 897; CACI § 401. Simply because an injury occurs does not mean that a defendant acted unreasonably. If Coppola intends to pursue a theory that the Millers were tenants of Martin, it needs to expressly allege that fact, as well as allegations that Martin retained sufficient control over 110 Ñ. Willis that it could have, but did not, reasonably monitor Millers. Cf. Sisters of Notre Dame de Namur v. Gamett-Murray, 2012 WL 2050377, *7-*8, 2012 U.S. Dist. LEXIS 78747, *24-*25 (N.D.Cal. June 6, 2012). As it stands, the TAC does not adequately allege a breach of the duty of due care by Martin. In sum, the TAC does not adequately allege a breach of the duty of due care. The Court will not dismiss this cause of action, or the lawsuit as a whole, against Martin without leave to amend. However, any amended complaint should include allegations that plausibly indicate unreasonable conduct by Martin, and that address the 2009 EPA letter. A Jpth Cause of Action — Negligence Per Se Defendant’s Argument Martin argues that Coppola fails to allege that they belong to a class of persons for which the relevant statutes were designed to protect. Further, there are no facts to show that Martin caused the contamination of Coppola’s property. There are no allegations of how, what, or when Martin contaminate 717 W. Main. Plaintiffs Opposition Coppola argues that they have properly alleged a negligence per se claim. Coppola argues that they are part of the class of persons the statutes were adopted to protect because the statutes prohibit releasing hazardous substances into the environment. Martin breached the statutory duty when it released hazardous substances and allowed the continued release of PCE. Legal Standard Negligence per se is not a separate cause of action, but is the application of an evidentiary presumption provided by California Evidence Code § 669. Carson v. Depuy Spine, Inc., 365 Fed.Appx. 812, 815 (9th Cir.2010); Quiroz v. Seventh Ave. Ctr., 140 Cal.App.4th 1256, 1285-86, 45 Cal.Rptr.3d 222 (2006). Under the negligence per se doctrine, “violation of a statute gives rise to a presumption of negligence in the absence of justification or excuse .... ” Ramirez v. Nelson, 44 Cal.4th 908, 918, 80 Cal.Rptr.3d 728, 188 P.3d 659 (2008). To invoke the negligence per se doctrine, a plaintiff must allege that: (1) the defendant violated a statute, ordinance, or regulation; (2) the violation proximately caused injury; (3) the injury resulted from an occurrence that the enactment was designed to prevent; and (4) the plaintiff fits within the class of persons for whose protection the enactment was adopted. See Cal. Evid.Code § 669; Ramirez, 44 Cal.4th at 917-18, 80 Cal.Rptr.3d 728, 188 P.3d 659; Newhall Land and Farming Co. v. Superior Court, 19 Cal.App.4th 334, 347, 23 Cal.Rptr.2d 377 (1993). Even if the four requirements are satisfied, “this alone does not entitle a plaintiff to a presumption of negligence in the absence of an underlying negligence action.” Quiroz, 140 Cal.App.4th at 1285, 45 Cal.Rptr.3d 222; Rosales v. City of L.A., 82 Cal.App.4th 419, 429, 98 Cal.Rptr.2d 144 (2000). Discussion There are problems with this claim. First, there is not a viable negligence cause of action alleged against Martin. As discussed above, the conduct that would constitute a breach of the duty of care is not adequately described. In the parlance of the negligence per se doctrine, the TAC fails to adequately allege conduct that violates a particular enactment, i.e. a statute, regulation, or ordinance. Second, the TAC identifies several statutes, but does not allege that Coppola is within the class of persons for whose protection the statutes were adopted. Because the TAC does not contain factual allegations that demonstrate a violation of the particular statute relied upon, nor does it allege Coppola fits within the class intended to be protected by the statutes, dismissal with leave to amend is appropriate. 5. 5th, 6th, 9th, 12th, and 13th Causes of Action — Public & Private Nuisance Claims and Continuing Trespass Defendant’s Argument Martin argues that there are no allegations that show it affirmatively created or assisted in the creation of the alleged contamination. Without such conduct, Martin cannot be liable for any form of nuisance. Plaintiff’s Opposition Citing Leslie Salt Co. v. San Francisco, 153 Cal.App.3d 605, 200 Cal.Rptr. 575 (1984), Coppola argues that their nuisance claims have been sufficiently pled. The TAC alleges that the contamination is abatable and Martin’s failure to abate resulted in the spread of contamination. Martin was in sufficient control of 110 N. Willis and knew of the risks associated with PCE, and also knew of the PCE plume under Visalia. The nuisance was created by Martin when it failed to abate contamination and let it migrate into the environment. Legal Standard California law defines a nuisance, in part, as “[a]nything which is injurious to health ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. ...” Cal. Civ.Code § 3479. A public nuisance is “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” Cal. Civ.Code § 3480. “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” Cal. Civ. Code § 3493. A private nuisance is “a non-trespassory interference with the private use and enjoyment of land.” San Diego Gas & Elec. Co. v. Superior Court, 13 Cal.4th 893, 937, 55 Cal.Rptr.2d 724, 920 P.2d 669 (1996); see also Monks v. City of Rancho Palos Verdes, 167 Cal. App.4th 263, 302, 84 Cal.Rptr.3d 75 (2008). “A nuisance may be both public and private, but to proceed on a private nuisance theory, the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public.” Monks, 167 Cal.App.4th at 302, 84 Cal. Rptr.3d 75; Koll-Irvine Center Property Owners Assn. v. County of Orange, 24 Cal.App.4th 1036, 1041, 29 Cal.Rptr.2d 664 (1994). “Where the nuisance alleged is not also a private nuisance as to a private individual, [i.e.] where there is no allegation of an interference with a known property right, he does not have a cause of action on account of a public nuisance unless he alleges facts showing special injury to himself in person or property of a character different in kind from that suffered by the general public.” Birke v. Oakwood Worldwide, 169 Cal.App.4th 1540, 1549-50, 87 Cal.Rptr.3d 602 (2009); see Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App.3d 116, 124, 99 Cal.Rptr. 350 (1971). Both public and private nuisance claims require a showing of substantial and unreasonable interference, either with a public right or with the enjoyment of a plaintiffs property. City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 452 (9th Cir.2011); People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 60 Cal.Rptr.2d 277, 929 P.2d 596 (1997) (public nuisance); San Diego Gas & Elec., 13 Cal.4th at 938, 55 Cal.Rptr.2d 724, 920 P.2d 669 (private nuisance). “[I]t is established that trespass and nuisance claims may include wrongful entry or invasion by pollutants,” including the migration of pollutants. Martin Marietta Corp. v. Insurance Co. of N.A., 40 Cal.App.4th 1113, 1132, 47 Cal.Rptr.2d 670 (1995). A defendant may be liable for a nuisance under one of three theories. First, the defendant creates or assists in the creation of the nuisance. See Redevelopment Agency v. BNSF Ry., 643 F.3d 668, 673-77 (9th Cir.2011); see also City of Modesto Redev. Agency v. Superior Ct., 119 Cal.App.4th 28, 38, 13 Cal.Rptr.3d 865 (2004). “[C]onduct cannot be said to ‘create’ a nuisance unless it more actively or knowingly generates or permits the specific nuisance condition.” BNSF, 643 F.3d at 674. For liability based on creating or assisting in the creation of a nuisance, a defendant must engage in active, affirmative, or knowing conduct, merely being a “but-for” cause of the nuisance will not suffice. Id. (discussing City of Modesto, 119 Cal.App.4th at 43, 13 Cal.Rptr.3d 865 and Selma Pressure Treating Co. v. Osmose Wood Preserving Co. of Am., 221 Cal.App.3d 1601, 1620, 271 Cal.Rptr. 596 (1990)). Second, the defendant unreasonably fails to abate a nuisance when he is in possession of land. See BNSF, 643 F.3d at 675-77; San Pedro, 635 F.3d at 452-53; Restatement (Second) of Torts § 839. Under this theory, the defendant must: (1) be in possession of the land; (2) know or should know of an artificial condition and the nuisance (or an unreasonable risk of nuisance); (3) know or should know that the nuisance exists without the consent of the afflicted persons; and (4) after a reasonable opportunity, fail to take reasonable steps to abate the condition or protect those afflicted against the nuisance. See BNSF, 643 F.3d at 675-77; San Pedro, 635 F.3d at 452-53; Restatement (Second) of Torts § 839. Third, the defendant has a right of possession in land and consents or unreasonably permits a third party to create a nuisance on the land. See San Pedro, 635 F.3d at 452-53; Restatement (Second) of Torts § 838. This theory relates to a defendant who leases land to third parties. See San Pedro, 635 F.3d at 453. For liability under this theory, a plaintiff must show: (1) a third party is conducting an activity on the land that causes a nuisance; (2) the defendant knows or has reason to know that the activity is occurring and that it is causing a nuisance (or involves an unreasonable risk of nuisance); (3) the defendant consents to the activity of the third party or fails to exercise reasonable care to prevent the nuisance; and (4) the defendant has a right of possession in the land. See id. Restatement (Second) of Torts § 838. Discussion Coppola relies on a citation to Leslie Salt that discussed nuisance liability under Restatement (Second) of Torts § 839. See Leslie Salt, 153 Cal.App.3d at 619-20, 200 Cal.Rptr. 575. Section 839 reads: A possessor of land is subject to liability for a nuisance caused while he is in possession by an abatable artificial condition on the land, if the nuisance is otherwise actionable, and (a) the possessor knows or should know of the condition and the nuisance or unreasonable risk of nuisance involved, and (b) he knows or should know that it exists without the consent of those affected by it, and (c) he has failed after a reasonable opportunity to take reasonable steps to abate the condition or to protect the affected persons against it. Restatement (Second) of Torts § 839 (1979); BNSF, 643 F.3d at 675; San Pedro, 635 F.3d at 453; Leslie Salt, 153 Cal.App.3d at 619-20, 200 Cal.Rptr. 575. This is a species of “possessor” liability that is separate from liability for creating or assisting in the creation of a nuisance. See BNSF, 643 F.3d at 673-77. Although the TAC sufficiently alleges that contamination is abatable, the TAC does not otherwise support nuisance liability under Restatement § 839. Section 839 “applies only when the defendant is ‘in possession’ of the subject property.” San Pedro, 635 F.3d at 453. Coppola appears to contend that the nuisance, i.e. contamination, was created due to dry cleaning activities. However, there are no allegations that Martin was in possession of 110 N. Willis at any time while dry cleaning operations were occurring. Martin is not currently in possession of 110 N. Willis, rather the property is being used only for office space. While Millers Dry Cleaners at one time operated at 110 N. Willis, there are no allegations that Martin was actually in possession of 110 N. Willis with Miller Dry Cleaners, and the TAC does not actually allege that Miller Dry Cleaners was a tenant of Martin. For purposes of Restatement § 839, the TAC needs to allege that Martin was actually in possession of 110 N. Willis while the nuisance was created. See id. Further, the TAC does not allege that Martin knew or reasonably should have known of the nuisance or an unreasonable risk of nuisance, nor does the TAC allege that Martin had a reasonable opportunity to abate the contamination nuisance or that Martin failed to take reasonable steps to abate or protect against the nuisance. See Restatement (Second) of Torts § 839(a), (c). Allegations that cover these aspects of § 839 are needed. See id.; cf. BNSF, 643 F.3d at 676-77 (finding no liability under this theory when defendant neither knew nor reasonably should have known about the nuisance). However, given the nature of the nuisance at issue, and because Coppola has brought this lawsuit, it can reasonably be assumed that Coppola did not consent to the creation of the nuisance. As for the continuing trespass cause of action, the failure to clean up contamination that causes ongoing damage to property can constitute a continuing nuisance and a continuing trespass. See Rancho Viejo v. Tres Amigos Viejos, 100 Cal.App.4th 550, 561-62, 123 Cal.Rptr.2d 479 (2002); Resolution Trust Corp. v. Rossmoor Corp., 34 Cal.App.4th 93, 99, 40 Cal.Rptr.2d 328 (1995). Neither party makes arguments that separate the two causes of action, and thus both parties intend that the same arguments apply to both causes of action. Therefore, for the same reason that the nuisance claims fail, so too fail the continuing trespass claims. Cf. Gregory Vill. Partners, L.P. v. Chevron U.S.A., Inc., 2012 WL 832879, **7-8, 2012 U.S. Dist. LEXIS 32644, **19-21 (N.D.Cal. Mar. 12, 2012) (dismissing trespass and nuisance claims for substantially the same reasons). Dismissal of these causes of action with leave to amend is appropriate. 6. 10th & 11th Causes of Action — Porter-Cologne Act & Waste. Coppola states that it does not oppose dismissal of these two causes of action. See Doc. No. 100 at 18:9-14. Given Coppola’s express non-opposition, the tenth and eleventh causes of action will be dismissed. 7. 7th & 8th Causes of Action — Contribution & Indemnification Defendant’s Argument Martin argues that dismissal of both causes of action is appropriate. Because there are no allegations that show how Martin is liable for cleanup costs, there is no viable claim for contribution. Because there are no allegations that Coppola has a loss suffered through payment of an adverse judgement or settlement, there is no viable claim for indemnification. Plaintiffs Opposition Coppola states that an equitable contribution claim lies if both Coppola and Martin are liable. Such a claim is derivative of the other substantive claims in this case and should remain. Discussion Coppola concedes that these causes of action are derivative of the other pled causes of action. Because the Court is dismissing the other causes of action, the causes of action for equitable indemnity and contribution will also be dismissed. Additionally, “a fundamental prerequisite to an action for partial or total equitable indemnity is an actual monetary loss through payment of a judgment or settlement.” Western Steamship Lines, Inc. v. San Pedro Peninsula Hosp., 8 Cal.4th 100, 110, 32 Cal.Rptr.2d 263, 876 P.2d 1062 (1994); Forensis Group, Inc. v. Frantz, Townsend, & Foldenauer, 130 Cal. App.4th 14, 28, 29 Cal.Rptr.3d 622 (2005); see also City of San Diego v. U.S. Gypsum Co., 30 Cal.App.4th 575, 587, 35 Cal. Rptr.2d 876 (1994). The TAC does not allege that Coppola has actually paid a judgment or settlement. Without such an allegation, there is no claim for equitable indemnity. See id. 8. Uth Cause of Action — Declaratory Relief Parties ’ Arguments Martin argues that Coppola’s claim for declaratory relief fails because it is dependent on the other causes of action, which all fail. Coppola argues that this cause of action is derivative of the other claims and thus, it survives. Discussion The parties appear to agree that this cause of action is derivative of the prior causes of action. As discussed above, because each of the other causes of action against Martin will be dismissed, the claim for declaratory relief will also be dismissed. II. Cal Water’s Motion To Dismiss 1. CERCLA & HSAA Causes of Action Defendant’s Argument Cal Water argues that Coppola’s CERCLA and HSAA claims should be dismissed because Cal Water is not a “potentially responsible party” under § 9607(a). Cal Water is not the current owner of the Well. Cal Water did not engage in “disposal” activities when it did own the well. Cal Water was not an “operator” at the time it owned the Well because water was being extracted and flowing into the Well for productive use as drinking water. Finally, Cal Water was not an “arranger” or “transporter” because there are no allegations that it intended to: dispose of PCE, accept PCE for transportation or disposal, or select a site for PCE disposal. Plaintiffs’ Opposition Coppola argues that their CERCLA and HSAA claims should not be dismissed. Cal Water is an operator of the Well, and the operation of the Well led to the movement of contaminated water into uncontaminated areas. This movement of contaminated water constitutes a disposal. Further, because Cal Water knew in 2000 that the Well tested above the Federal Maximum Contamination Levels, but did not abandon the Well until 2005, Cal Water is an arranger. Legal standard Part of a plaintiffs prima facie case under § 9607(a) requires a showing that the defendant falls within one of four classes of persons who are subject to liability as “potentially responsible parties.” Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 874 (9th Cir.2001); Kaiser Aluminum & Chem. Co. v. Catellus Dev. Corp., 976 F.2d 1338, 1340 (9th Cir.1992). One of those classes is “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” 42 U.S.C. § 9607(a)(2). An “owner” is someone who holds title to the facility. BNSF, 643 F.3d at 679-81; Wells Fargo Bank, N.A. v. Renz, 795 F.Supp.2d 898, 915 (N.D.Cal.2011). An “operator” is one who “manage[s], directs], or conduces] operations specifically related to the pollution, that is, operations having to do with the leakage or disposal of the hazardous waste.” United States v. Bestfoods, 524 U.S. 51, 66-67, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998); BNSF, 643 F.3d at 680. The term “disposal” means: “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such [waste] or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” 42 U.S.C. § 9601(29). Thus, for liability under § 9607(a)(2), “there must have been a ‘discharge, deposit, injection, dumping, spilling, leaking, or placing’ of contaminants [at the facility] during [the defendant’s] ownership.” Carson Harbor, 270 F.3d at 875; Coeur D’Alene Tribe v. Asarco, Inc., 280 F.Supp.2d 1094, 1112 (D.Idaho 2003). “Disposal” generally refers to the “affirmative act of discarding a substance as waste, and not to the productive use of the substance.” Carson Harbor, 270 F.3d at 877; 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1362 (9th Cir.1990). “Disposal” includes a defend