Gutierrez v. C&H Sugar, Inc.

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 FREDDY GUTIERREZ, Case No. 23-cv-03192-SI 8 Plaintiff, ORDER DENYING MOTION TO 9 v. DISMISS PLAINTIFF'S COMPLAINT AND DENYING MOTION TO STRIKE 10 C&H SUGAR, INC., CLASS ALLEGATIONS 11 Defendant. Re: Dkt. No. 31 [12] 13 Before the Court is defendant’s motion to dismiss plaintiff’s complaint and motion to strike 14 class allegations. Dkt. No. 31. Plaintiff opposes. Dkt. No. 34. Pursuant to Civil Local Rule 7-1(b), 15 the Court determines that the motions are suitable for resolution without oral argument, and 16 VACATES the November 17, 2023 hearing. For the reasons stated below, the Court DENIES the 17 motions. [18] 19 BACKGROUND1 20 I. General Allegations 21 Plaintiff Freddy Gutierrez (“Gutierrez”) brings this class action against defendant C&H 22 Sugar, Inc. (“C&H”) “for its release of noxious odors onto Plaintiff’s property.” Dkt. No. 1 23 (“Compl.”) ¶ 1, 2, 4. Defendant owns and operates a sugar refinery and municipal wastewater 24 treatment facility in Crockett. The C&H sugar facility (“Facility”) offloads, stores, and refines 25 800,000 tons of raw sugar annually. Id. ¶¶ 2, 12. Plaintiff resides in Crockett and alleges the odors [27] 1 For purposes of this motion to dismiss, the Court treats as true the factual allegations as 1 the Facility releases onto his property have caused damages through public and private nuisance and 2 negligence. Id. ¶ 3. 3 The Facility refines sugar for packaging, treats wastewater from the sugar refining process, 4 and treats municipal wastewater from the town of Crockett. Id. ¶ 12, 15. The sugar refining process 5 produces a “waste sludge, called ‘mud,’ which produces large quantities of hydrogen sulfide and is 6 highly odiferous.” Id. ¶ 17. This “mud” is treated at the wastewater treatment plant along with the 7 municipal wastewater, “which contains sewage and is also highly odiferous.” Id. ¶ 19. The resulting 8 byproducts create “extremely noxious odors” that “can escape the Facility and permeate the 9 surrounding residential areas if the Facility is not properly maintained and/or operated.” Id. ¶ 20, 10 21. 11 According to plaintiff, defendant has failed to prevent the emissions from “escaping into the 12 adjacent residential neighborhood” and as a result, plaintiff’s property “has been and continues to 13 be physically invaded by noxious odors” on “frequent, recurrent, and continuing occasions too 14 numerous to list.” Id. ¶ 22. The noxious odors that entered plaintiff’s property originated from the 15 Facility “as a result of inadequate, improper, and/or negligent operation and maintenance” of the 16 wastewater treatment activities. Id. ¶ 23. The noxious odor emissions have also “been the subject 17 of frequent and persistent complaints from residents in the nearby residential area.” Id. ¶ 25. 18 Defendant has failed to adequately collect, capture, mitigate, and destroy its odorous compounds 19 and emissions to prevent them from escaping into the surrounding area. Id. ¶¶ 31-34. Specifically, 20 defendant has “failed to install and maintain adequate technology to properly control its emissions.” 21 Id. ¶ 39. Plaintiff provides specific technologies defendant has allegedly failed to properly operate 22 or maintain. Id. ¶ 39. According to plaintiff, the “nuisance conditions created by Defendant are 23 abatable with reasonable care, effort, and diligence.” Id. ¶ 77. 24 The odors have prevented plaintiff from opening the windows in his home to get fresh air. 25 Id. ¶ 28. Additionally, “[n]umerous households within the proposed Class Area have contacted 26 Plaintiff’s counsel documenting the noxious odors they attribute to the Defendant’s Facility.” Id. 27 ¶ 27. One putative class member reported the odor “kept us from opening our windows or enjoying 1 remain inside in a closed-up house, couldn’t enjoy our yard/deck.” Id. ¶ 28. Another putative class 2 member reported she is “not able to keep windows or doors open for air flow as well as the smell 3 doesn’t allow for outdoor activities without nausea.” Id. She described the odor as smelling like 4 “rotten egg or sulfur.” Id. The odors “are offensive, would be offensive to a reasonable person of 5 ordinary health and sensibilities, and have caused property damage.” Id. ¶ 42. The Bay Area Air 6 Quality Monitoring Division (“BAAQMD”) and the California Environmental Protection Agency 7 (“CalEPA”) regulate defendant’s facility. Id. ¶ 29. The BAAQMD “received more than 350 8 complaints between September and November of 2022 from local residents regarding intense 9 ‘hydrogen sulfide’ and ‘sewage’ odors emanating from Defendant’s Facility.” Id. ¶ 30. The 10 BAAQMD and CalEPA have issued “numerous” Notice of Violations against defendant for the 11 “odor nuisance” and facility violations, some of which are listed in plaintiff’s complaint. Id. ¶ 30, 12 36. 13 The physical “invasion” of plaintiff’s property and that of the proposed class by noxious 14 odor omissions has resulted in damages including diminution in the value of plaintiff’s property, 15 loss of property value, and unreasonable interference with the right of use and enjoyment of 16 plaintiff’s property. Id. ¶¶ 43, 79, 87, 92. The odors are “indecent and/or offensive to the senses” 17 and obstruct the “free use” of plaintiffs’ property by causing plaintiffs to “remain inside their homes 18 and forego use of their yards” and “keep doors and windows closed,” and by causing plaintiffs 19 “annoyance, discomfort, embarrassment, and reluctance to invite guests to their homes.” Id. ¶ 68. 20 Plaintiff and proposed class members have suffered damages different in kind from that of the public 21 "in the form of diminished property values and/or loss of use and enjoyment of their private 22 property.” Id. ¶¶ 46, 74. [23] 24 II. Class Allegations 25 Plaintiff seeks to represent a class preliminarily defined as: “All owner/occupants and renters 26 of residential property residing within one (1) mile of the Facility’s property boundary between the 27 date three (3) years predating the filing of this Complaint and the present.” Dkt. No. 1 (“Compl.”) 1 the location of all persons properly included in the Class.” Id. ¶ 51. [2] The approximate number of residential households within the proposed class area is over [3] 2,200. Id. ¶ 53. The class area is also home to a “wide range of commercial and recreational [4] activities, including but not limited to manufacturing, construction, retail trade, ministry, education, [5] dining, and lodging.” Id. ¶ 44. Plaintiffs allege that numerous questions of law and fact predominate [6] over any individual questions, including, but not limited to: [7] (a) Whether and how Defendant negligently and knowingly failed to reasonably [8] construct, maintain, and operate the Facility to prevent off-site odor emissions; (b) 9 Whether Defendant owed any duties to Plaintiff; (c) Which duties Defendant owed to Plaintiff; (d) Which steps Defendant has and has not taken in order to control the 10 emission of noxious odors through the construction, operation, and maintenance of its Facility; (e) Whether and to what extent the Facility’s noxious odors were 11 dispersed over the Class Area; (f) Whether it was reasonably foreseeable that Defendant’s failure to properly construct, operate, and maintain the Facility would [12] result in an invasion of Plaintiff’s property interests; (g) Whether the degree of harm 13 suffered by Plaintiff and the Class constitutes a substantial annoyance or interference; and (h) The proper measure of damages incurred by Plaintiff and the 14 Class. Id. ¶ 55. [15] Plaintiff alleges that the claims of each class member, if brought individually, “would [16] require proof of many of the same material and substantive facts, utilize the same complex [17] evidence including expert testimony, rely upon the same legal theories and seek the same [18] type of relief.” Id. ¶ 56. “Numerous households in the proposed Class Area have contacted [19] Plaintiff’s counsel documenting the noxious odors they attribute to the Defendant’s [20] Facility.” Id. ¶ 27. Additionally, the Bay Area Air Quality Monitoring Division [21] (“BAAQMD”) received more than 350 complaints between September and November of [22] 2022 from local residents regarding the odors emanating from defendant’s facility, and [23] BAAQMD has issued numerous Notices of Violation to the facility for odor nuisance and [24] facility violations. Id. ¶ 30. Plaintiff further alleges that the Rule 23 requirement of [25] adequacy of representation is met and that class treatment is a superior method of [26] adjudication for this case. Id. ¶¶ 59-62. [27] 1 LEGAL STANDARD 2 I. Federal Rule of Civil Procedure 12(b)(6) 3 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if 4 it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 5 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires 7 the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted 8 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened 9 fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the 10 speculative level.” Twombly, 550 U.S. at 555, 570 . 11 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 12 court must assume that the plaintiff’s allegations are true and must draw all reasonable inferences 13 in the plaintiff’s favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, 14 the court is not required to accept as true “allegations that are merely conclusory, unwarranted 15 deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049 , 1055 16 (9th Cir. 2008). A pleading must contain allegations that have “factual content that allows the court 17 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 18 U.S. at 678. Dismissal under Rule 12(b)(6) is proper when the complaint “lacks a cognizable legal 19 theory” or “fails to allege sufficient facts to support a cognizable legal theory.” Somers v. Apple, 20 Inc., 729 F.3d 953, 959 (9th Cir. 2013). 21 If the Court dismisses the complaint, it must then decide whether to grant leave to amend. 22 The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no 23 request to amend the pleading was made, unless it determines that the pleading could not possibly 24 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) 25 (citations and internal quotation marks omitted). [26] 27 II. Federal Rule of Civil Procedure 12(f) 1 “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or 2 scandalous matter.” “[T]he function of a Rule 12(f) motion to strike is to avoid the expenditure of 3 time and money that arises from litigating spurious issues by dispensing of those issues before trial.” 4 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, motions to strike 5 are generally disfavored. Rosales v. Citibank, Fed. Sav. Bank, 133 F. Supp. 2d 1177, 1180 (N.D. 6 Cal. 2001 ). Generally, a motion to strike “should not be granted unless the matter to be stricken 7 clearly could have no possible bearing on the subject of the litigation.” Platte Anchor Bolt, Inc. v. 8 IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004). When ruling on a 12(f) motion to strike, 9 the Court “must view the pleading in the light most favorable to the nonmoving party.” Cruz v. Sky 10 Chefs, Inc., 2013 WL 1892337 , at *4 (N.D. Cal. May 6, 2013). 11 There is a split in this District as to whether a motion to strike class allegations may be 12 entertained at the motion to dismiss stage. Ogala v. Chevron Corp., 2014 WL 4145408 , at *2 (N.D. 13 Cal. Aug. 21, 2014) (collecting cases). When it is entertained, judges in this District have applied a 14 “very strict standard” to motions to strike class allegations on the pleadings. Id. While district 15 courts have “broad discretion to control the class certification process,” including “[w]hether or not 16 discovery will be permitted,” the pleadings alone will often “not resolve the question of class 17 certification and [] some discovery will be warranted.” Vinole v. Countrywide Home Loans, Inc., [18] 571 F.3d 935, 942 (9th Cir. 2009). [19] 20 DISCUSSION 21 I. Motion to Dismiss Plaintiff’s Complaint 22 Defendant argues that plaintiff cannot recover “purely economic” losses under a negligence 23 claim; that plaintiff has not alleged enough facts “demonstrating a substantial or unreasonable 24 interference with his use of enjoyment of property” as required for a private nuisance claim; and 25 that plaintiff’s public nuisance claim must be dismissed because he does not allege injury that differs 26 from the general public. Defendant further argues that even if plaintiff could state a nuisance claim, 27 plaintiff cannot recover prospective damages for a nuisance that can be abated ,and thus plaintiff’s 1 A. Negligence Claim 2 1. Dismissal as a Matter of Law 3 Defendant argues that under California law, without allegations of physical injury to person 4 or property, a plaintiff’s claim for negligence asserting “purely economic damages” must be 5 dismissed. Dkt. No. 31 at 6. Defendant argues that damages for “interference with the use and 6 enjoyment of private property, loss of property values, and diminution of property values,” are 7 economic losses. Id. at 6-7 (citing Compl. ¶ 21). Defendant argues the economic loss rule was 8 “decisively confirmed” in S. California Gas Leak Cases, 7 Cal. 5th 391 (2019). In California Gas 9 Leak, local businesses brought a negligence action against a gas company, seeking damages for lost 10 profits allegedly resulting from a months-long natural gas leak. Id. at 883. The court concluded 11 that the defendant did not have a tort duty to guard against negligently causing “purely economic 12 losses,” reasoning that “claims for purely economic losses suffered from mere proximity to an 13 industrial accident create intractable line-drawing problems for courts.” Id. at 395, 398. 14 Plaintiff contends that the loss of use and enjoyment of private property is not a purely 15 economic loss but rather a cognizable property injury. Dkt. No. 34 at 10-11. Plaintiff argues 16 defendant cites no cases applying the economic loss doctrine to the loss of use of real property. Id. 17 Plaintiff asserts that California Gas Leak is distinguishable because the companies there alleged lost 18 income but not personal injury, property damage, or lost use and enjoyment of private property. 19 Dkt. No. 34 at 13. 20 Under California law, liability in negligence for “purely economic losses” is the “exception, 21 not the rule.” California Gas Leak, 7 Cal. 5th at 400 (citation omitted). Purely economic losses are 22 “pecuniary or commercial loss that do[] not arise from actionable physical, emotional or reputational 23 injury to persons or physical injury to property.” Id. at 398 (quoting Dobbs, An Introduction to Non24 Statutory Economic Loss Claims, 48 Ariz. L. Rev. 713 (2006)). There is no tort duty of care to 25 guard against negligently causing “purely economic losses” absent a “special relationship” between 26 the plaintiff and defendant. California Gas Leak, 7 Cal. 5th at 398, 400 .2 [27] 1 The parties dispute whether loss of use and enjoyment of private property is a “purely 2 economic loss.” The cases the parties cite in their briefs do not definitively answer this question. In 3 California Gas Leak, the alleged damages were lost profits resulting from an industrial accident. Id. 4 at 394, 398, 408. Defendant has not provided the Court with cases applying the “purely economic 5 loss” doctrine as confirmed in California Gas Leak to loss of use of real property.3 The Court cannot 6 conclude, drawing all inferences in plaintiff’s favor, that loss of use of real property is a purely 7 economic loss such that it is appropriate to dismiss the negligence claim on the pleadings as a matter 8 of law.4 [9] 10 no special relationship at issue here. 11 3 In Anthony v. Kelsey–Hayes Co., 25 Cal. App. 3d 442, 446 (1973), a case defendant cites, a California Court of Appeal ruled: “Loss of use is an item of incidental damage. It appears 12 appropriate, therefore, to characterize it according to the nature of the damage of which it is an incident. Unless incidental to physical property damage, it would appear that it may be properly [13] classified as a type of economic loss.” At issue in Anthony was loss of use prior to and during 14 inspections and repairs of a three-quarter ton truck about which General Motors sent out a letter regarding safety issues related to the wheels. Id. at 445-446 . The Court does not find this case 15 permits dismissal as a matter of law. Defendant also cites San Francisco Unified Sch. Dist. V. W.R. Grace & Co., 37 Cal. App. 16 4th 1318 (1995). There, the court was focused on the narrow question whether, when a building is constructed with asbestos-containing materials, a property owner’s cause of action for strict liability [17] or negligence accrues “on the owner’s discovery of the mere presence of asbestos in the building or 18 when asbestos contamination occurs.” Id. at 1322. The language defendant cites in its brief falls under the heading “physical injury in asbestos-in-building cases” and the case holds that “physical 19 injury from asbestos contamination, not the mere presence of asbestos, must have occurred before a cause of action for strict liability or negligence can accrue in an asbestos-in-building case.” Id. at [20] 1330. While San Francisco Unified does confirm that “plaintiffs may recover in tort for physical 21 injury to person or property, but not for purely economic losses that may be recovered in a contract action,” the case does not provide guidance as to whether loss of use of private property is a purely 22 economic loss. See id. at 1327 (citations omitted). 23 4 Defendant also argues that courts have only allowed negligence claims for purely economic losses when plaintiffs have “alleged physical damage to property or that substances such [24] as particles, dust, or contamination were deposited on the property.” Dkt. No. 31 at 8. According 25 to defendant, odors are “intangible intrusions,” not “physical intrusions,” and are better suited for nuisance claims. Id. Plaintiff responds that the “tangible intrusion” argument is “parroted from the 26 inapplicable laws of trespass.” Dkt. No. 34 at 15. Defendant cites two trespass cases in support of this argument, neither of which involved a negligence cause of action. See Dkt. No. 31 at 8-9. In 27 Wilson v. Interlake Steel Co., 32 Cal. 3d 229, 230 (1982), plaintiffs sought damages under a trespass 1 2. Whether Sufficient Facts Are Pled Regarding Plaintiff’s Injury 2 The Court finds that plaintiff has pled sufficient facts regarding his injury to support his 3 negligence claim at this stage. To go beyond purely economic loss, plaintiff must allege “physical, 4 emotional or reputational injury to persons or physical injury to property.” California Gas Leak, 7 5 Cal. 5th at 398. Plaintiff repeatedly alleges that his residence was “physically invaded” by noxious 6 odors. He further alleges inability to open his windows. Compl. ¶ 28. He also alleges (along with 7 putative class members) forgoing use of his yard due to the odors and annoyance, discomfort, 8 embarrassment, and reluctance to invite guests into his home. Id. at ¶ 68. Complaints by putative 9 class members of injuries including burning eyes and nausea cannot be imputed to plaintiff. See 10 Warth v. Weldin, 422 U.S. 490, 502 (1975) (holding that for plaintiffs to have standing, they “must 11 allege and show that they personally have been injured, not that injury has been suffered by other, 12 unidentified members of the class to which they belong and which they purport to represent”). 13 However, drawing all inferences in plaintiff’s favor, the Court reads ¶ 68 of the complaint, referring 14 to allegations of plaintiff and the putative class, to include allegations specific to plaintiff. The 15 Court thus denies the motion to dismiss with respect to the negligence claim. [16] 17 B. Private Nuisance Claim 18 Defendant argues plaintiff’s allegation that he was unable to open his windows is insufficient 19 to support an inference that plaintiff suffered “substantial interference” causing “substantial actual 20 damages” and an inference that the interference was “unreasonable.” Dkt. No. 31 at 10, 11. 21 Defendant further argues plaintiff’s claims of “substantial” and “unreasonable” interference are 22 conclusory. Id. at 11. Lastly, defendant argues plaintiff’s claim that the “social utility Defendant’s [24] the possibility of recovery on a nuisance theory, explaining that “[a]ll intangible intrusions, such as 25 noise, odor, or light alone, are dealt with as nuisance cases, not trespass.” Id. at 230, 232-33. San Diego Gas & Electric Co. v. Superior Court, 13 Cal. 4th 893 (1996) included causes of action for 26 trespass, nuisance, and inverse condemnation based on the emission of electromagnetic radiation from defendant’s use of electric and magnetic fields. The court held plaintiffs did not state facts 27 sufficient to support a trespass cause of action because they did not (and could not) allege the electric 1 operations provide is outweighed by the harm suffered,” is conclusory and that his “vague 2 allegation” of being unable to open his windows is “insufficient as a matter of law” to outweigh the 3 social utility of defendant’s operations. Id. at 12. 4 Plaintiff argues that whether his inability to open his windows at his home rises to the level 5 of “substantial inference” and whether the social utility provided by defendant is outweighed by the 6 harm defendant causes is a question of fact that cannot be decided on the pleadings. Dkt. No. 34. at 7 16, 18. 8 “[A]n obstruction to the free use of property, so as to interfere with the comfortable 9 enjoyment of life or property . . . is a nuisance.” Cal. Civ. Code § 3479 . Proof of “interference with 10 the plaintiff’s use and enjoyment” of their property is sufficient for nuisance liability. San Diego 11 Gas & Elec. Co., 13 Cal. 4th at 937 . A nuisance cause of action requires proof that “the plaintiff’s 12 interest in the use and enjoyment of the land was substantial, i.e., that it caused plaintiff to suffer 13 substantial actual damage.” Id. at 938 (internal quotations and citations omitted). The interference 14 must also be unreasonable. Id. at 938 (internal quotations and citations omitted). “The primary test 15 for determining whether the [interference] is unreasonable is whether the gravity of the harm 16 outweighs the social utility of the defendant's conduct, taking a number of factors into account.” Id. 17 (citing Rest. 2d Torts, §§ 826–831). 18 The Court finds that plaintiff has pled enough facts to allege defendant’s actions substantially 19 and unreasonably interfered with his use and enjoyment of his property. Plaintiff alleges he cannot 20 freely use and comfortably enjoy his property as the noxious odors force him to close his windows. 21 Compl. ¶ 28. He also alleges (along with putative class members) discomfort, embarrassment, and 22 reluctance to invite guests over and forgoing use of yards due to the odor. Id. at ¶ 68. Plaintiff 23 further argues that defendant failed to install and maintain adequate and available technology to 24 properly control its emissions and that the nuisance conditions are abatable. Id. ¶ 39. Whether the 25 alleged interferences with plaintiff’s use of his property are substantial and unreasonable are 26 questions of fact that cannot be decided on the pleadings. [27] 1 C. Public Nuisance Claim 2 Defendant argues plaintiff’s public nuisance claim should be dismissed because he has “not 3 sufficiently stated any cognizable damage” (addressed under the private nuisance claim) and 4 because he has not alleged an injury that differs from that of the general public. Dkt. No. 31 at 105 11. Plaintiff responds that a plaintiff claiming a nuisance that is both public and private “must only 6 show that they suffered damages specifically referable to the use and enjoyment of [their] land.” 7 Dkt. No. 34 at 18 (citations omitted). 8 “A public nuisance is one which affects at the same time an entire community or 9 neighborhood, or any considerable number of persons, although the extent of the annoyance or 10 damage inflicted upon individuals may be unequal.” Cal. Civ. Code § 3480 . “A private party may 11 maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” [12] Id. § 3493. To sue to enjoin a public nuisance, a plaintiff must “allege and prove facts showing that 13 it causes special injury to himself in person or property.” Frost v. City of Los Angeles, 181 Cal. 22 , 14 24-25 (1919) (citations omitted). “The injury to the individual must [] be different in kind and not 15 merely in degree from that suffered by the general public.” Brown v. Rea, 150 Cal. 171, 174 (1907). 16 However, “an injury to private property, or to the health and comfort of an individual, is in its nature 17 special and peculiar and does not cause a damage which can properly be said to be common or 18 public, however numerous may be the cases of similar damage arising from the same cause.” Lind 19 v. City of San Luis Obispo, 109 Cal. 340 (1895), see also Rest. 2d Torts, § 821(C) (“when the public 20 nuisance causes personal injury to the plaintiff or physical harm to his land or chattels, the harm is 21 normally different in kind from that suffered by other members of the public and the tort action may 22 be maintained”). 23 Plaintiff and defendant cite seemingly contradictory California Court of Appeal decisions 24 regarding whether a plaintiff need allege damage different in kind from that suffered by other 25 members of the public. Tracing these cases back to the underlying California Supreme Court 26 decisions, this Court interprets the legal standard to be that a plaintiff who pleads personal injury or 27 an injury to private property has pled an injury different in kind from that of the general public. 1 discomfort, and reluctance to invite guests over. Compl. ¶¶ 28, 68. The Court finds these to be 2 sufficient factual allegations of personal or property injury to maintain the public nuisance claim at 3 this pleading stage. [4] 5 D. Prospective Damages on Nuisances that Can be Abated 6 Lastly, defendant argues that if the Court does not dismiss plaintiff’s claims for nuisance 7 outright, plaintiff’s claim for prospective damages should be dismissed and damages should be 8 limited to injuries that occurred prior to the commencement of the suit, because California law does 9 not permit prospective damages when a nuisance can be abated. Dkt. No. 31 at 13-14. Plaintiff 10 contends that “unless and until the court orders abatement [he] is entitled to pursue all damage 11 remedies available under law.” Dkt. No. 34 at 19 n.10. Plaintiff points out that defendant’s 12 argument “appears to be based on the principle that a court may not award double damages,” which 13 is not applicable to pleadings. Id. 14 The Court does not find it appropriate to dismiss any of plaintiff’s damages claims on the 15 pleadings. When a nuisance can be abated, “a plaintiff cannot have a judgment abating the nuisance 16 and also a judgment for the loss in market value of the property caused by the nuisance, since: 17 ‘Plaintiff would obtain a double recovery if she could recover for the depreciation in value and also 18 have the cause of that depreciation removed’”). Rhodes v. San Mateo Inv. Co., 130 Cal. App. 2d 19 116, 118 (1955) (quoting Spaulding v. Cameron, 38 Cal. 2d 265, 269 (1952)) (emphasis added). 20 Plaintiff has pled diminution in property value damages, which cannot be recovered in a continuing 21 nuisance case. Gehr, 165 Cal. App. 4th at 668 (citing Spaulding, 38 Cal. 2d at 269 ). However, the 22 Court has not determined that the alleged nuisance here is continuing and abatable and a decision 23 about what damages plaintiff may recover is not appropriate at this pleading stage. [24] 25 II. Motion to Strike Class Allegations 26 Defendant argues that the class allegations “should be stricken because the alleged claims 27 require highly individualized inquiries and the class definition is arbitrary and overbroad.” Dkt. No. 1 on nuisance odors typically fail to satisfy the class certification requirement that common issues of 2 law and fact predominate. Id. In support of this assertion, defendant cites primarily out of circuit 3 district court decisions denying class certification. See id. at 15. 4 Specifically, defendant argues that odorous emissions do not spread evenly across a one5 mile radius with diverse geography. Id. at 16. Defendant contends that plaintiffs will be unable to 6 show with common proof that “each of the 2,200 residences were affected in the same way by the 7 same odor at the same intensity for the same amount of time from the same source.” Id. at 17. 8 Defendant argues that “[e]ven if plaintiff could prove all class members were exposed to odors, 9 individual inquiries would be required to determine whether the odor was strong enough to interfere 10 with the enjoyment of individual class members’ property, or whether individual class members 11 experienced an actual loss or damage.” Id. at 19 (citation and internal quotation marks omitted). 12 Defendant argues that plaintiff’s class allegations should be stricken for the additional reason 13 that the proposed class definitions for odor actions based on a circle drawn a certain distance from 14 the facility “have repeatedly been denied certification because they are overbroad, arbitrary, and 15 lack a connection with the alleged injury.” Id. at 19-20. In support of this contention, defendant 16 cites district court decisions from around the country decided at the class certification stage. See id. 17 at 20-21. Defendant argues that proposed class is overbroad “because the geographic boundaries 18 bear no rational relationship to the harm alleged and encompass individuals who may have sustained 19 no injury.” Id. at 21. 20 Plaintiff responds that defendant strays from the legal standard for motion to strike pleadings 21 under Rule 12(f) and instead offers argumentation regarding “speculative factual defenses to 22 Plaintiff’s anticipated arguments in support of class certification.” Dkt. No. 34 at 21. The Court 23 agrees. The class allegations do not contain “redundant, immaterial, impertinent, or scandalous 24 matter.” See Fed. R. Civ. Pro. 12(f). Nor has defendant proven that there is no possibility that a 25 class action can be maintained on the facts alleged or that certifying a class would be improper as a 26 matter of law. The factual record is completely undeveloped at this point, such that defendant’s 27 various issues, such a predominance, ascertainability and overbreadth, cannot properly be evaluated. 1 litigants to use it as a means to dismiss some or all of a pleading... we would be creating 2 || redundancies within the Federal Rules of Civil Procedure” because a Rule 12(b)(6) motion “already 3 serves such a purpose.” Whittlestone, Inc. v. Handi—Craft Co., 618 F.3d 970, 974 (9th Cir. 2010). 4 || The suitability of proceeding as a class action in this case will be properly considered in a motion 5 for (or against) class certification, based on an appropriate factual record. [6] 7 CONCLUSION 8 For the foregoing reasons and for good cause shown, the Court hereby DENIES defendant’s 9 || motion to dismiss plaintiff's complaint and motion to strike class allegations. [10] 11 IT IS SO ORDERED. 12 Dated: November 15, 2023 Sun Delite 14 SUSAN ILLSTON United States District Judge