Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
Nos. F009421, F010070, F010710
1990.CA.40627 ; 221 Cal. App. 3d 1601; 271 Cal. Rptr. 596
June 25, 1990
SELMA PRESSURE TREATING COMPANY, INC., ET AL., CROSS-COMPLAINANTS AND APPELLANTS,
v.
OSMOSE WOOD PRESERVING COMPANY OF AMERICA, INC., CROSS-DEFENDANT AND RESPONDENT. GERALD D. PETERY ET AL., PETITIONERS, V. THE SUPERIOR COURT OF FRESNO COUNTY, RESPONDENT; REICHHOLD CHEMICALS, INC., ET AL., REAL PARTIES IN INTEREST. GERALD D. PETERY ET AL., CROSS-COMPLAINANTS AND APPELLANTS, V. REICHOLD CHEMICALS, INC., ET AL., CROSS-DEFENDANTS AND RESPONDENTS
Superior Court of Fresno County, No. 328086-4, James F. Thaxter, Judge.
Bergman & Wedner, Gregory M. Bergman, Kevin D. Sheehy, Kimble, MacMichael & Upton, Sylvia H. Coyle, David Douglas Doyle, Carlton R. Ericson and Jon Wallace Upton for Cross-complainants and Appellants and for Petitioners.
Diehl, Steinheimer, Riggio, Haydel & Mordaunt, Scott Malm, Karen Denise Lee, Thomas, Snell, Jamison, Russell & Asperger, E. Robert Wright, French, Rogers, Kezelis & Kominiarek, James M. Hofert, Kirkland & Ellis, Bruce A. Featherstone, Scott R. Bauer, Philip A. Brimmer, Gibson & Gibson, John D. Gibson, Katherine O. Gibson, Parichan, Renberg, Crossman & Harvey, Stephen T. Knudsen, Rutan & Tucker, Jayne Taylor, Mark B. Frazier, Marshall M. Pearlman, Wildman, Harrold, Allen & Dixon, Robert L. Shuftan, Sedgwick, Detert, Moran & Arnold, James L. Gault, Kevin J. Dunne, Michael F. Healy and William P. Keane for Cross-defendants and Respondents and for Real Parties in Interest.
No appearance for Respondent Superior Court.
Opinion by Ardaiz, J., with Franson, P. J., and Martin, J., concurring.
Ardaiz
The consolidated cases before us challenge the propriety of the sustaining of several demurrers of various cross-defendants to cross-complaints filed by Selma Pressure Treating Company, Inc. (SPTC), Mary Ann Schuessler and Gerald Petery and Selma Leasing Company, Inc. (SLC). The cross-complainants were, in turn, defendants in an action filed on April 30, 1985, by the State of California and Regional Water Quality Control Board (collectively, the State).
The underlying complaint stated 15 causes of action surrounding allegations that defendants improperly disposed of hazardous waste. Nine of the causes of action requested civil penalties; two requested specific injunctive relief; and the last four causes of action, including the twelfth cause of action for maintenance of a public nuisance, more generally sought both equitable and legal relief based upon the defendants' liability for the harm done on account of the alleged improper disposal.
SPTC and Schuessler filed a joint answer and a cross-complaint against their codefendants, SLC and Petery, and two corporations, Koppers Company, Inc., and Osmose Wood Preserving Company of America, Inc. The cross-complaint sought indemnity from the cross-defendants. Osmose's demurrer was sustained with leave to amend.
Cross-complainant Schuessler filed an amended complaint and Osmose demurred again. A month later, SPTC filed an amended cross-complaint, provoking yet another demurrer from Osmose. The court sustained the demurrers to the amended cross-complaints without leave to amend and dismissed the complaints as to Osmose. On October 8, 1987, Schuessler and
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