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Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
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SPTC appealed from the dismissals. This appeal, No. F009421, represents the first of the three cases consolidated here.
Petery and SLC jointly filed a first amended cross-complaint against codefendants, Osmose, Koppers and several chemical suppliers, Reichhold Chemicals, Inc., Monsanto Company, Ventron Corporation, Seymour Chemical, Vulcan Material Company and Van Waters and Rogers, Inc. The cross-complaint contained 19 causes of action including claims for equitable indemnity against all cross-defendants and direct tort and contract causes of action against various cross-defendants.
Demurrers were filed by the cross-defendants. After a hearing, the court found that provisions of the Water Code and Health and Safety Code, which provided the basis for the claims for the civil penalties in the State's underlying complaint, could not be applied retroactively to acts or conduct preceding their enactment. Demurrers to the direct causes of action were sustained with leave to amend to plead sufficient facts to justify tolling of the statute of limitations. The court took under submission the question whether all cross-defendants could be jointly and severally liable with Petery and SLC under the State's public nuisance cause of action, relating to the equitable indemnity claims against Osmose, Koppers and the chemical suppliers.
In its "Order After Hearing," the court ultimately sustained, without leave to amend, the demurrers to the causes of action for equitable indemnity against Osmose, Koppers and the chemical suppliers. A writ petition was filed on March 21, 1988, by Petery and SLC challenging the propriety of the sustaining of these demurrers. This writ petition, No. F010070, is the second of three cases here, the writ being consolidated with the Schuessler/SPTC appeal by request of the petitioning party.
Subsequently, Petery and SLC filed their second amended cross-complaint. Two new cross-defendants were added, First Interstate Bank of California and Camp, Dresser and McKee (CDM). Causes of action against all cross-defendants except SPTC and Schuessler were added for public and private nuisance based upon Petery's ownership of a lot adjoining the affected land. Additional allegations were made relative to the tolling of the statute of limitations.
Another round of demurrers followed, the bank joining Osmose, Koppers and the chemical suppliers. In the order after judgment issued May 31, the court overruled the demurrer of the bank; all other demurrers were sustained without leave to amend based upon a determination that the statute of limitations had run. Orders of dismissal of Osmose, Koppers and the chemical suppliers as to the cross-complaint of Petery and SLC were entered pursuant to the sustaining of the demurrers. Petery and SLC appealed, No. F010710, this appeal forming the third of the cases before us now.
On July 10, 1989, while the matter was pending in this court, we received information that the matter had been settled between the State and appellants; in return for a payment of $25,000 by appellants, the State agreed to dismiss with prejudice its entire complaint. Motions to dismiss were filed.
In August of 1989, this court indicated its desire to take judicial notice of the settlement agreement; it also requested rebriefing on the issues in light of the settlement and dismissal of the State's complaint. Also, while these matters have been pending in this court, Petery and SLC have settled with several of the parties, and we have, pursuant to Petery's request, dismissed the appeals and petition for writ as to these parties. Osmose Wood Preserving Company of America, Inc., Kop
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