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McKelvey v. Boeing North American Inc.6/29/1999
MODIFYING OPINION Filed 7/14/99
(Ordered partially published 7/14/99; order & mod. attached)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Los Angeles County, and petitions for a writ of mandate, Valerie Baker and Fumiko Wasserman, Judges. Judgments affirmed; petitions granted with directions.
The issue in these consolidated cases is whether the plaintiffs have pled facts sufficient to establish delayed discovery of their claims or whether, instead, their complaints were filed too late. We conclude the actions are time barred.
A. The 1997 Actions
1. McKelvey
In October 1997, Barbara A. McKelvey and John Walakavage (collectively "McKelvey") filed a class action against Boeing North American, Inc., Rockwell International Corporation, Rocketdyne, Inc., Atomics International, Inc., Hughes Aircraft Company and others. In her first amended complaint filed in April 1998, McKelvey alleges that, beginning in the 1940's and continuing into the 1980's, Boeing "systematically, methodically and generally" caused the contamination of the land at and around four of its Southern California facilities (the "Rocketdyne facilities"), as a result of which McKelvey was damaged. She alleges that tests conducted by Boeing during 1991 confirmed the existence of groundwater contamination and that, during the early 1990's, both the federal government and the State of California issued clean up orders. She alleges that, in 1994, two physicists were killed and a technician was injured in an explosion at one of the Rocketdyne facilities. She alleges that there followed a series of lawsuits, including wrongful death claims by the physicists' families, a shareholders' action, and criminal charges alleging the illegal storage and disposal of hazardous waste. Guilty pleas were ultimately entered and a fine of $6.5 million was paid. She does not allege that she was unaware of any of these events.
McKelvey alleges that Boeing's "operations . . . were veiled in secrecy. Thousands of residents and workers in the surrounding communities, for decades, have used and continue to use drinking water, to garden and work the contaminated soil and to eat citrus and vegetables growing in the contaminated soil on their properties. Those who worked at or near the Rocketdyne Facilities inhaled, ingested and were otherwise exposed to the contaminated soil, water and vapors. Further, these residents and workers have used and enjoyed and continue to use and enjoy their neighborhoods, community, homes and properties while unknowingly being exposed to contaminants contained in the soil and groundwater. Not only were they unknowingly ingesting TCE, they were consuming many other hazardous wastes. These hazardous substances were released into the soil and groundwater, causing further exposure. Even though public notices and newspaper articles were published about [Boeing's] intentional, reckless and/or negligent conduct, Plaintiffs were and are not aware of the actual and potential harm caused by this conduct." (Emphasis added.) McKelvey does not say when or how she ultimately learned whatever it was she needed to know to file her lawsuit.
2. Aurness
In October 1997, James K. Aurness (and several dozen other named individuals, including the two named plaintiffs in the McKelvey class action) filed a "direct action" against Boeing. In his first amended complaint filed in April 1998, Aurness alleges the same facts alleged by McKelvey. The difference is status, with Aurness alleging that "Plaintiffs reside, live and work in the counties of Los Angeles and Ventura, and, at the time of sus
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