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Wilshire Westwood Associates v. Atlantic Richfield Co.11/24/1993
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
Nos. B060492, B061959
1993.CA.40816 ; 20 Cal. App. 4th 732; 24 Cal. Rptr. 2d 562
Decided: November 24, 1993.
WILSHIRE WESTWOOD ASSOCIATES ET AL., PLAINTIFFS AND APPELLANTS,
v.
ATLANTIC RICHFIELD COMPANY ET AL., DEFENDANTS AND RESPONDENTS.
Superior Court of Los Angeles County, No. C678223, Stephen E. O'Neil, Judge.
Nossaman, Guthner, Knox & Elliott, Thomas D. Long and Mary Lou Byrne for Plaintiffs and Appellants.
McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, Steven W. Weston, Steven J. Vining, Bren C. Conner, Sedgwick, Detert, Moran & Arnold, T. Emmet Thornton, Daniel P. Schrader and Tod Zuckerman for Defendants and Respondents.
Opinion by Epstein, J., with Woods A. M., P. J., and Rappe, J., Concurring.)
Epstein
Wilshire Westwood Associates and Platt Development Corporation appeal from summary judgment entered against them in their action seeking damages from former lessees for the costs of abating soil contamination on a parcel of property. They assert error in the court's grant of summary adjudication of two issues: that operation of a gasoline service station is not an ultrahazardous activity giving rise to strict liability; and that no claim for private nuisance can be stated against a former occupant of property by a subsequent purchaser of the same property. They challenge the grant of summary judgment as to the remaining cause of action for negligence, asserting error in the court's holdings regarding lack of duty, implied assumption of the risk, and statute of limitations. Finally, they argue that the court erred in refusing to limit the attorney fees awarded to respondent Peter Ruddock to those fees attributable to the contract claims.
We conclude that the undisputed facts establish that the causes of action for negligence and strict liability are barred by the statute of limitations, and affirm the judgment on those causes of action. For this reason, we need not reach the questions of ultrahazardous activity, lack of duty and implied assumption of the risk. We find that appellants stated a cause of action for continuing nuisance, and that the statute of limitations does not bar that cause of action. We also conclude that the nuisance statutes are broad enough to include an action by a subsequent purchaser of property against former occupiers of the same property, and reverse the judgment as to the nuisance cause of action. We find no abuse of discretion in the court's refusal to apportion attorney fees, since the tort and contract claims presented the same issues.
FACTUAL AND PROCEDURAL SUMMARY
John and Thomas Crawford were owners of a parcel of property at the southeast corner of Wilshire and Midvale, in the Westwood Village section of Los Angeles. From 1964 to December of 1983, the Crawfords leased this property to Atlantic Richfield Company (ARCO) for operation of an ARCO gasoline service station. ARCO operated the station in conjunction with Peter J. Ruddock, its sublessee. When ARCO's lease expired in December 1983, Ruddock entered into a month-to-month lease with the Crawfords and continued to operate the station as an ARCO franchisee.
In November 1982, the Crawfords entered into an agreement to sell the property to Wilshire Westwood Associates and Platt Development Corporation (collectively Wil
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