Joseph F. Farivar Investment Group v. HPC Vineburn CA2/1

Filed 10/22/26 Joseph F. Farivar Investment Group v. HPC Vineburn CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE JOSEPH F. FARIVAR INVESTMENT B343432 GROUP, INC., et al., (Los Angeles County Plaintiff and Respondents, Super. Ct. No. 23STCV00319) v. HPC VINEBURN, LLC, et al., Defendants and Appellants. APPEAL from a judgment of the Superior Court of Los Angeles County, Rolf M. Treu, Judge. Reversed. Goodkin Law Group, Daniel L. Goodkin and Michael A. Shakouri for Defendant and Appellant Meruelo Maddux Properties-1919 Vineburn Street, LLC. Edgcomb Law Group, Tiffany Hedgpeth, John Edgcomb, Gabriel J. Padilla and Ferdeza Zekiri for Defendant and Appellant HPC Vineburn, LLC. Elkins Kalt Weintraub Reuben Gartside, Kenneth A. Ehrlich and Sean A. McCormick for Plaintiffs and Respondents.  This case concerns the passive1 migration of contaminated groundwater from one property to an adjacent downgradient property. Plaintiffs are the owner and renter of the downgradient property. The defendants are the current and prior owners of the upgradient property. Prior to defendants’ ownership, a manufacturing company contaminated the upgradient property, and the contamination migrated onto the downgradient property. The trial court granted summary adjudication in favor of plaintiffs on their causes of action for declaratory relief, negligence, continuing nuisance, and continuing trespass. After plaintiffs dismissed their remaining causes of action, the trial court entered judgment in favor of plaintiffs in the amount of $12,245,108.42. The judgment included a declaration that defendants were responsible for the 1,4-dioxane contamination in the groundwater on plaintiffs’ property. We conclude plaintiffs failed to show breach of a common law or statutory duty of care as a matter of law to support their negligence claim. We also conclude plaintiffs did not establish, as a matter of law, all elements of their continuing nuisance and continuing trespass claims because they used an improper damages measure for these continuing torts. Additionally, we conclude that the trial court erroneously partially summarily adjudicated the declaratory relief cause of action. The trial court thus erred in summarily adjudicating plaintiffs’ claims and ultimately entering judgment in plaintiffs’ favor. Accordingly, we reverse. 1 Plaintiffs do not allege the defendants themselves caused toxic chemicals to enter the groundwater on the upgradient property. 2  BACKGROUND The record is prolix. We summarize below the overall procedural and factual background, and in our Discussion, post, we provide additional factual background pertaining to certain appellate challenges, 1. The parties Plaintiff Joseph F. Farivar Investment Group, Inc. (Farivar) owns property located at 4335 Valley Boulevard (Farivar Property). Plaintiff Bordan Shoe Company, Inc. (Bordan) leases the Farivar Property. The Los Angeles Regional Water Quality Control Board (LARWQCB) issued a cleanup and abatement order for the Former Square D Site, which is located on the Farivar Property.2 The Square D site began remediation efforts in 2000, which efforts continued through 2022. The Farivar Property is located adjacent to property at 1919 Vineburn Avenue (Vineburn Property) and is “downgradient” from the 1919 Vineburn Property. Defendant HPC Vineburn LLC (Vineburn) currently owns the 1919 Vineburn Property, which defendant Meruelo Maddux Properties-1919 Vineburn Street, LLC (Maddux) previously owned. Prior to Maddux’s ownership, the Nardon Manufacturing Company owned the Vineburn Property. 2Plaintiffs’ expert, Steven Luis, references this cleanup and abatement order in his report. The order is not in our record. 3 2. Undisputed facts3 Prior to 1989, the Nardon Manufacturing Company, a metal fabricator, operated the Nardon Facility at the Vineburn Property. The Nardon Manufacturing Company discharged waste onto the property, including 1,4-dioxane, a common additive to 1,1,1-trichloroethene (1,1,1-TCA). 1,4-dioxane, 1,1- dichloroethene (1,1-DCE), and tetrachloroethylene (PCE) are present in the soil and groundwater at the Vineburn Property. In 2018, the LARWQCB issued a directive to Vineburn to “complete site assessment activities to further assess possible source areas that might be present and possibly contributing to the groundwater issues and contamination of the Farivar Property.” To comply with this directive, Vineburn retained Hazard Management Consulting, Inc. (HMC) to conduct a subsurface investigation and prepare a report. HMC prepared its report dated May 7, 2020. HMC’s report, which is central to the issues in this case, showed that soil and groundwater contamination at the Vineburn Property had migrated to the subsurface of the Farivar Property. Vineburn and plaintiffs agree, “The 2020 Subsurface Report revealed ‘elevated concentrations of 1,4-dioxane, 1,1-DCE, PCE, and to a lesser extent, TCE . . . in soil samples collected’ from a boring adjacent to and downgradient from a former wastewater clarifier at the northeast end of the Nardon Facility.” “The 2020 3 Plaintiffs and Vineburn agreed on many facts in their separate statements. Maddux did not file a separate statement or opposing memorandum of points and authorities. The “undisputed facts” referenced in this Background are facts agreed to by Vineburn and plaintiffs in their respective separate statements. 4 Subsurface Report revealed that ‘laboratory results of groundwater samples indicated elevated concentrations of 1,4- dioxane, 1,1-DCA, and PCE, and to a lesser extent, 1,1-DCA, 1,2- DCA, and TCE’ at the Nardon Facility.” “There is a ‘hot-spot’ of contamination ‘in the vicinity’ of a former wastewater clarifier at the northeast end of the Nardon Facility.” “A ‘hot-spot’ is ‘an area with much higher concentrations when compared to surrounding sample points.’ ” According to the Subsurface Report, the Vineburn Property “ ‘has contributed to the 1,4- dioxane groundwater issues at [the Farivar Property], and to a lesser extent the residual 1,1-DCE and PCE at that property.’ ” After receiving HMC’s report, Vineburn made a “ ‘proposal to start cleaning-up the impacted ground water’ identified by the 2020 Subsurface Report.” Vineburn is “ ‘ready to start the clean- up with all the money set aside to do the clean-up’ of the contamination revealed by the 2020 Subsurface Report.” On September 27, 2023, after plaintiffs filed the case before us, the LARWQCB sent Vineburn an order for additional investigation of the contamination. The order required Vineburn to submit by December 25, 2023 a “work plan . . . to complete the vertical and lateral delineation of soil, soil vapor, and groundwater impacts.” The LARWQCB noted that HMC’s 2020 report suggested “a release point in the vicinity of the Former Clarifier” at the Nardon Facility, and that the Nardon Facility “has contributed to the 1,4-dioxane groundwater plume at the downgradient Former Square D Facility [located on the Farivar Property], and to a lesser extent the residual 1,1-DCE and PCE at that same site.” 5 3. First amended complaint Plaintiffs alleged causes of action for continuing nuisance, continuing trespass, negligence (including negligence per se), and declaratory relief, among other causes of action dismissed after the trial court granted summary adjudication in their favor.4 As to each cause of action, plaintiffs allege the migration of toxic chemicals from Vineburn’s Property to Farivar’s Property. Plaintiffs alleged Maddux is a dissolved Delaware limited liability company that owned the Nardon Facility from approximately 2005 through 2013. Plaintiffs further alleged Vineburn has owned and occupied the Nardon Facility since 2013. Plaintiffs alleged that between 1951 and 1993, the owners and occupants of the Nardon Facility manufactured metal components and fabricated products for the Los Angeles Metro and Standard Light Rail Vehicles. The Nardon Facility’s operations included using the solvent, 1,1,1-trichlorethane, which is commonly used in connection with 1,4-dioxane. Plaintiffs averred the Nardon facility generated hazardous substances that were released “into several onsite clarifiers, and subsequently disposed of through the municipal sewer system.” Contamination from 1,4-dioxane migrated from the Nardon Facility to groundwater beneath the Farivar Property. As to the 4 Plaintiffs also alleged permanent nuisance, permanent trespass, contribution, and equitable indemnity. They did not seek summary adjudication of these causes of action and later dismissed them. Plaintiffs also sued the Nardon Liquidating Corp., Benedetta Nardon, Marilyn Knoop, and Patricia Minni. These defendants are not included in the judgment and are not parties to the appeal. 6 continuing nuisance claim, plaintiffs alleged pursuant to Civil Code section 3483 that defendants, as successive owners, are liable for contamination created by a former owner. They incorporated this allegation in their continuing trespass, negligence, negligence per se, and declaratory relief causes of action. In their declaratory relief cause of action, as described in more detail in the Discussion, plaintiffs alleged defendants are responsible for the contamination and the costs of remediation, liabilities to third parties, including governmental agencies, and monetary damages. Plaintiffs alleged defendants denied these obligations and an actual controversy exists. 4. Motion for summary adjudication Plaintiffs moved for summary adjudication. They relied heavily on HMC’s (Vineburn’s consultant) 2020 report, which concluded the Vineburn Property “contributed” to the contamination at the Farivar Property. With respect to damages, plaintiffs relied on declarations of their experts, Steven Luis and Bradley Lofgren. Luis, a civil engineer with more than 20 years’ experience in environmental consulting and engineering services, opined that to clean up the 1,4-dioxane on the Farivar Property without access to the Vineburn Property would cost $11,779,000 (present value) for over a 20-year cleanup period. Lofgren, a certified appraiser, opined it would cost $192,887 (present value) in loss of use of the property during the 20-year remediation. In his declaration, Luis stated he was “asked to review available environmental information and data related to the Former Square D Site [located on the Farivar Property] and Former Nardon Site [located on the Vineyard Property] and 7 develop a plan and cost estimate to remediate the contamination that has migrated onto the Former Square D Site from the Former Nardon Site.” “The Former Square D Site was used previously to manufacture electrical components and furniture (LARWQCB, 12/5/2001).” Luis recounted a study by Schneider Electric, which “attributed the presence of PCE, TCE, 1,1-DCE, 1,1-DCA, and 1,4-dioxane in groundwater at the Former Square D Site to historical releases at the Former Nardon Site due to the location of the Former Nardon Site upgradient from the Former Square D Site (i.e., the Former Nardon Site is located northeast and upgradient of the Former Square D Site . . . .).” Luis also described the HMC report’s conclusion that the former Nardon Site contributed “ ‘to the 1,4-dioxane groundwater issues’ ” at the Former Square D Site. Luis referred to a 2023 order from the LARWQCB (the order issued after plaintiffs filed suit) indicating the Former Nardon site contributed to 1,4-dioxane groundwater plume at the former Square D Facility (which is located on the current Farivar Property). Luis acknowledged the LARWQCB had indicated additional assessment was needed to “ ‘complete the vertical and lateral delineation of soil, soil vapor, and groundwater impacts.’ ” According to Luis, “It is reasonable to anticipate LARWQCB will require Vineburn to continue investigating and to remediate groundwater at the Former Nardon Site, the Former Square D Site, and in downgradient locations to achieve the California MCLs [Maximum Contaminant Levels] and SWRCB NL [State Water Resources Control Board Notifications Level].” “Based on [his] review of the available data and information,” Luis agreed with the LARQWQCB that “1,4- dioxane, 1,1-DCE, PCE, and TCE were released at the . . . 8 Former Nardon site and have migrated via groundwater onto the Former Square D Site.” To remediate “within the boundaries of the Former Square D Site,” the cost would be $11,779,000. Luis explained: “Under the oversight of the LARWQCB, the California MCLs are being used as cleanup goals for the Former Square D Site [citation]. Based on my experience at other sites in California, it is common for California regulatory agencies such as the LARWQCB to apply the California MCLs as cleanup goals for sites in California. Therefore, for contaminants with established California MCLs it is likely the LARWQCB will apply the California MCLs as cleanup goals at the Former Square D Site for contaminates originating at the Former Nardon Site.” Luis rejected remediation approaches he believed “would not be acceptable” to the LARWQCB. 5. Vineburn opposed summary adjudication In its opposition, Vineburn argued plaintiffs failed to consider certain facts. Specifically, plaintiffs did not acknowledge the former use of (1,1,1-trichloroethane) at the Farivar Property and its “likely” contribution to the presence of 1,2-dioxane “in soil and groundwater beneath Plaintiffs’ property.” Additionally, according to Vineburn, plaintiffs failed to consider LARWQCB’s ongoing investigation, and that LARWQCB had not yet ordered a remediation plan. Vineburn argued there were disputed issues of material fact precluding summary adjudication. Specifically, plaintiffs did not show causation as a matter of law because plaintiffs’ property contributed to the claimed damages. Vineburn argued it did not breach any duty owed to plaintiffs because it complied with all directives of the LARWQCB and did not itself contaminate the groundwater. Vineburn also emphasized its expert had 9 concluded a five-year cleanup would cost $5 million, less than half the estimate posited by plaintiffs’ expert. Vineburn contended there was no continuing nuisance or continuing trespass because any alleged nuisance or trespass was permanent, not continuing. In addition, declaratory relief was not appropriate “because the [LA]RWQCB has not selected a remedy.” Vineburn supported its opposition with Adam Love’s declaration. Love has a Ph.D. in environmental engineering with expertise in identifying sources and timing of chemical releases and environmental site characterization and remediation. The portions of Love’s declaration for which the trial court’s minute order indicates it overruled plaintiffs’ objections indicated the following:5 “Additional 1,4-Dioxane Contributions to Groundwater Contamination Originate from 4335 Valley Boulevard.” “An Equitable Allocation of 1,4-Dioxane Clean[up] Costs Among 1919 Vineburn Avenue and 4335 Valley Boulevard is Appropriate.” “While there is still significant uncertainty based on incomplete site investigation and not-yet determined regulatory requirements, based on the current available data and an expectation that the LARWQCB will require cleanup to drinking water standards, the cost to remediate the co-mingled 1,4- Dioxane Contamination from both 1919 Vineburn Avenue and 5 According to plaintiffs, notwithstanding the court’s minute order expressly overruling plaintiffs’ objections to the foregoing evidence, “[T]he court’s actual treatment of this evidence and ultimate ruling makes clear that this testimony . . . was excluded” and failed to “create a disputed issue of material fact.” 10 4335 Valley Boulevard is reasonably expected to be $5 [million] (with an additional contingency of $.08 [million]) . . . .” (Some capitalization omitted.) Dr. Love rejected plaintiffs’ expert’s damage assessment: “Mr. Luis does not acknowledge the 1,4-dioxane release(s) that occurred on the 4335 Valley Boulevard property, and he states that his remedy is targeted only at treatment of 1,4-dioxane migrating from the 1919 Vineburn property onto the 4335 Valley Boulevard property.” As to Luis’s estimate of clean-up costs: “The inflated costs presented by Mr. Luis result from a set of unreliable assumptions . . . : a) he assumes that no remedial activities can be performed on the 1919 Vineburn property, which creates an inefficient remediation configuration that prevents any 1,4-dioxane removal/treatment at 1919 Vineburn until it migrates to the 4335 Valley Boulevard property and greatly exceeds the time needed for remediation; b) he assumes the targeted ISCO treatment zone to be 20 to 50 feet below ground surface, even though groundwater monitoring results suggest the applicable treatment zone of 17 to 40 feet below the ground surface . . . ; c) he assumes that implementation of the injection remedy does not work with expected efficiency . . . .” 6. Plaintiffs’ separate statement regarding Maddux; Maddux filed no opposition to the motion for summary adjudication Plaintiffs’ separate statement included the following facts: “Defendant Meruelo Maddux Properties-1919 Vineburn Street, LLC . . . owned the Nardon Facility from 2005 through 2013. “Defendant Meruelo Maddux has failed to take any measures to prevent the migration of the Contamination onto the Farivar Property.” “Defendant Meruelo Maddux has failed to take any 11 measures to remediate the Contamination flowing from the Nardon Facility to [the] subsurface at the Farivar Property.” Maddox filed no opposition to plaintiffs’ motion. 7. Hearing on motion for summary adjudication At the hearing on plaintiffs’ summary adjudication motion, Vineburn’s counsel argued the HMC’s 2020 report shows only that some contamination migrated from the Vineburn Property to the Farivar Property but does not show what contamination was already present on the Farivar Property. Counsel argued plaintiffs did not demonstrate causation because they “can’t prove that we caused any damage.” Vineyard’s counsel also disputed the scope of declaratory relief plaintiffs requested, particularly, the “broad allegation that defendants are not only the cause of the contamination, but defendants are solely responsible for plaintiff’s [sic] damages including loss of use and enjoyment of the . . . 4335 Valley Boulevard address.” Plaintiffs argued that within the scope of the requested declaratory relief are “liabilities that are identified in the complaint that had nothing [to] do with any of the evidence supported.” 8. The trial court enters summary adjudication in plaintiffs’ favor The trial court summarily adjudicated plaintiffs’ causes of action for continuing nuisance, continuing trespass, negligence, including negligence per se, and declaratory relief. As to each claim, the court ruled in conclusory fashion that plaintiffs had met their initial burden in moving for summary adjudication and defendants had failed to raise a triable issue of material fact. The trial court stated the migration of contamination from the Vineburn Property to the Farivar Property constituted an 12 interference with plaintiffs’ enjoyment and use of their property and plaintiffs satisfied their initial burden to show the elements of continuing nuisance and continuing trespass. The court relied on HMC’s 2020 report showing that contamination from the Nardon Facility had migrated onto the Farivar Property. The court ruled defendants did not remediate the contamination thus causing plaintiffs harm. The court stated, “[Vineburn] does not present any admissible evidence in support” of its dispute on the amount of damages. The court further stated Maddux did not raise a triable issue of material fact because it did not file an opposition. With respect to negligence, the court found plaintiffs had proffered evidence contaminated groundwater had migrated to the Farivar Property; the contamination can be remediated; and defendants’ failure to remediate harmed plaintiffs. The court ruled neither defendant established a triable issue of material fact as to these findings. Turning to negligence per se, the court stated defendants or their predecessors in interest violated California Civil Code section 3479, California Water Code section 13350, and California Health and Safety Code sections 5411 and 25249.5. The court did not identify any specific facts showing violation of these statutes. The court further stated Vineburn presented no admissible evidence supporting its contention it did not breach any statute and failed to raise a triable issue of material fact that would defeat summary adjudication. Once again, Maddux failed to raise a triable issue of fact because it did not file an opposition. The court ruled plaintiffs were entitled to declaratory relief because of evidence showing contaminated groundwater had migrated and continues to migrate beneath the Farivar property; 13 the contamination can be remediated; and defendants had failed to remediate the contamination thus harming plaintiffs. The court stated neither defendant had raised a triable issue of material fact that would defeat summarily adjudicating the declaratory relief cause of action in plaintiffs’ favor. The court rejected Vineburn’s argument that summary adjudication of plaintiffs’ claim for declaratory relief was inappropriate because it was unclear what the Los Angeles Regional Water Control Board would require for remediation. On September 24, 2024, the court issued an order granting summary adjudication of plaintiffs’ causes of action for negligence, negligence per se, continuing nuisance, continuing trespass and declaratory relief. 9. Following dismissal of their remaining claims, plaintiffs move for entry of judgment Plaintiffs asserted that on October 2, 2024, they had dismissed their remaining claims against Vineburn and Maddux for permanent nuisance, permanent trespass, contribution, and equitable indemnity. Plaintiffs then moved for entry of final judgment in conformance with the entry of summary adjudication. Plaintiffs argued nothing remained for the court to adjudicate and final judgment was therefore appropriate. Plaintiffs also sought prejudgment interest totaling $273,221.42. 10. Hearing on plaintiffs’ motion for entry of judgment At the October 24, 2024 hearing on plaintiffs’ motion for entry of judgment, Vineburn’s counsel argued the trial court did not make a ruling on the amount of damages and therefore could not enter judgment. Counsel for Vineburn also argued its expert provided a declaration that the cost to remediate would be 14 $5 million and not the $11,779,000 estimate plaintiffs’ expert posited. 11. The trial court ultimately grants plaintiffs’ motion for entry of final judgment In an order dated October 14, 2024, the court stated, “The Court declines to approve the proposed judgment as the Court did not make [a] ruling regarding damages amount.” In response, Vineburn filed a written request, arguing entry of that final judgment should be delayed until the amount of damages is adjudicated. In contrast, plaintiffs argued they “proved their damages totaled $11,971,887 and Defendants failed to carry their burden to show a triable issue of fact, including with respect to damages.” In an order dated October 24, 2024, the court granted plaintiffs’ motion for entry of final judgment and found defendants jointly and severally liable. In reaching this conclusion, the court reiterated its prior order in stating, “HPC [Vineburn] and Maddux failed to present admissible evidence to raise an issue of material fact as to Plaintiffs’ claimed damages.” “As the Court stated in its Order, HPC [Vineburn] did not sufficiently authenticate evidence that it, and its expert, relied upon.” We observe, however, that this reasoning is inconsistent with the trial court’s evidentiary ruling admitting significant portions of Dr. Love’s declaration. (See Background, part 5, ante.) The trial court stated that Luis identified damages of $11,971,887. (Lewis identified damages of $11,779,000.) The court also determined Vineburn’s affirmative defenses “are necessarily already adjudicated” because Vineburn had the burden to show a triable issue of material fact as to those 15 defenses and Vineburn failed to do so. The court found prejudgment interest was appropriate “[s]ince Plaintiffs included admissible evidence of their amount of claimed damages” and Vineburn failed to raise a triable issue of material fact as to the amount of those damages — “damages were certain and calculable at the time of filing the motion.” 12. Judgment On November 7, 2024, the trial court entered judgment in the amount of $12,245,108.42, which included $273,221.42 in prejudgment interest. The court declared, “(a) Defendants HPC Vineburn, LCC and Meruelo Maddux Properties-1919 Vineburn Street, LLC are the cause of, and are responsible for, the 1,4- dioxane contamination in the subsurface at 4335 Valley Boulevard, Los Angeles California; and (b) Plaintiffs are not the cause of, or responsible for, such contamination.” The court subsequently awarded plaintiffs $29,265.45 in costs. DISCUSSION “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A plaintiff moving for summary judgment or summary adjudication meets the initial burden “if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) The burden then shifts to the defendant “to show 16 that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) A party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(1) [motion for summary judgment]; see id., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Id., § 437c, subd. (b)(3).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., § 437c, subd. (f)(1).) We review the granting of summary judgment or summary adjudication de novo and liberally 17 construe the evidence in support of the party opposing summary judgment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.) A. The Trial Court Erred In Summarily Adjudicating the Negligence Cause of Action Plaintiffs rely on the following “facts” to support their contention the evidence shows, as a matter of law, that defendants were negligent: (1) Since 2020, Vineburn has known of contamination migrating onto the Farivar Property; (2) the migration is ongoing; and (3) Vineburn admitted remediation is necessary but has failed to remediate or otherwise prevent the migration onto the Farivar Property. Plaintiffs similarly assert Maddux breached the duty to prevent their property from harming others by “permitting the migration of contamination onto the Farivar Property, and by failing to take affirmative measures to prevent or remediate it.” The trial court found plaintiffs met their initial burden in moving for summary adjudication. The court reasoned the evidence showed contaminated groundwater migration from the Vineyard Property to the Farivar Property, defendants failed to remediate that contamination, and the contamination harmed plaintiffs. The court then found defendants failed to raise a triable issue of material fact as to those elements of negligence. We conclude that the trial court erred in so finding. As set forth below, although there is a common law duty to act reasonably as to an adjacent property owner (see Discussion, subpart 1, post), there are triable issues of fact as to whether defendants breached that duty. Plaintiffs also cite several statutes to support their contention defendants breached their duty of care to plaintiffs as a matter law. None of those 18 authorities dissuades us from reversing the trial court’s ruling on plaintiffs’ negligence claim. (See id., subpart 2, post). 1. Plaintiffs do not show as a matter of law that defendants breached a common law duty to act reasonably as to an adjacent landowner The elements of negligence are duty, breach, causation, and damages. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) In their first amended complaint, plaintiffs alleged defendants or their predecessors “owed a duty of care in handling, storing, and using hazardous and contaminating substan[ces] at the Nardon Facility. Defendants and/or their predecessors in interest also owed a duty of care in preventing hazardous and contaminating substances from migrating onto the Farivar Property.” Plaintiffs further alleged, “Defendants and/or their predecessors in interest breached their duty of care by releasing, allowing the release of, or failing to prevent the release of, the Contamination, and/or by allowing the Contamination to migrate to the Farivar Property or failing to prevent the same.” Finally, plaintiffs claim they were damaged as a proximate result of that breach. A landowner has a duty to use reasonable care not to harm adjacent property. For example, in Booska v. Patel (1994) 24 Cal.App.4th 1786, 1791, the court reversed an order granting summary judgment against the appellant-neighbor’s negligence claim. Booska rejected respondent’s argument he had an absolute right to sever encroaching roots from the neighbor’s tree. The court held the neighbor’s right to manage his land was “tempered by his duty to act reasonably” and there was a question of material fact as to whether respondent acted reasonably when he severed the roots of his neighbor’s tree so 19 badly as to require the tree’s removal. (Id. at pp. 1788, 1791– 1792.) Plaintiffs cite two federal district court cases to support their negligence claim. One is Walnut Creek Manor, LLC v. Mayhew Center, LLC (N.D.Cal. 2009) 622 F.Supp.2d 918, 934, which applied Booska’s duty to act reasonably in holding the defendant landowner “had a duty not to act in a way that would potentially release PCE onto” adjacent property. Evidence that the defendant landowner had “drilled a slant boring” from the defendant’s property to the adjacent property raised a triable issue of material fact to defeat the defendant’s motion for summary judgment as to the plaintiff’s negligence claim. (Ibid.) The other district court case is Greenfield MHP Assoc., L.P. v. Ametek, Inc. (S.D.Cal. 2015) 145 F.Supp.3d 1000 (Greenfield MHP). In that case, the plaintiff adjacent and downgradient property owners brought negligence, among other, claims against the current and predecessor owners of property containing a tank that stored toxic chemicals. (Id. at pp. 1004–1005.) The plaintiffs alleged that over time, the tank failed causing toxic chemicals to seep into the soil and groundwater on the plaintiffs’ respective properties. (Ibid.) Plaintiffs further alleged the California Regional Water Quality Control Board for San Diego County had filed a complaint charging the defendants with, among other things, the “failure to take ‘any efforts to cleanup and abate the effects of their discharge’ despite ‘20 years of investigation efforts’ and Defendants being ‘repeatedly advised’ that their monitoring and remediation efforts were deficient.” (Id. at p. 1005.) The trial court denied the current and a predecessor owners’ motions to dismiss the negligence claim for failure to 20 state a claim: “In a toxic tort case, a duty to exercise reasonable care may exist where a defendant has subjected a plaintiff to harm by exposing their [sic] land to toxic chemicals.” (Greenfield MHP, supra, 145 F.Supp.3d at p. 1015.) The court focused on the plaintiffs’ allegations that Senior Operations (the current owner) knew about the presence of toxic chemicals on its property (id. at p. 1014), had a duty to exercise reasonable care, which it “breached . . . by ‘consciously ignor[ing]’ the risk of contamination the toxic waste plume posed to Plaintiffs,” and thus caused “groundwater and soil contamination on Plaintiffs’ land” (id. at p. 1015). The court also held, in addition to a viable negligence claim, the following allegations stated a cause of action for gross negligence against the original owner: “Ametek ‘dump[ed] 1.848 million gallons of toxic waste next to nearby properties and an elementary school,’ and then ‘fail[ed] to clean up or abate the toxic plume it created, knowing it flowed beneath those properties.’ ”6 (Greenfield MHP, at p. 1009.) 6 Defendants rely on a nonpublished district court case from Maryland, SPS L.P. LLLP v. Sparrows Point, LLC (2017) [2017 WL 3917153]. In the context of analyzing a cause of action for negligence, the federal district court interpreted the plaintiffs as arguing that defendants had a duty to contain hazardous substances and prevent the migration of the hazardous substances to the plaintiffs’ property. (Id. at p. *9.) The court rejected the argument finding it would “essentially impose a res ipsa loquitur-like liability on any subsequent owner, provided some [contamination] remain[e]d in the groundwater.” (Ibid.) We do not find this unpublished Maryland district court case instructive on whether under California’s negligence law, defendants were negligent as a matter of law. 21  As a preliminary matter, we conclude the record does not support plaintiffs’ premise that Vineburn refused to remediate for more than five years. Vineburn learned in May 2020 of the migration, and prior to January 26, 2022, proposed a clean-up plan. According to plaintiffs’ counsel, that plan is directed to the Water Board and concerns cleanup of ground water both on plaintiffs’ and defendants’ property.7 It appears the LARWQCB did not accept Vineburn’s plan because, according to plaintiffs’ expert, the LARWQCB issued a subsequent investigative order dated September 27, 2023 (after plaintiffs filed suit) requiring “additional assessment to ‘complete the vertical and lateral delineation of soil, soil vapor, and groundwater impacts.’ ” Even assuming arguendo plaintiffs met their initial burden to show Vineburn breached the duty to act reasonably to an adjacent landowner by failing to commence remediation, a reasonable trier of fact could conclude Vineburn has taken steps toward remediation by proposing a remediation plan and the delay in implementing that plan was not unreasonable in light of LARWQCB’s request for additional investigation. (See Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1214 [negligence is generally a question of fact unless reasonable jurors could draw only one conclusion].) Plaintiffs’ expert, Luis, confirmed the importance of LARWQCB’s approval of a remediation plan when his own proposed remediation of the Farivar Property factored in complying with LARWQCB cleanup requirements. Luis too 7 According to plaintiffs’ and Vineburn’s separate statements, plaintiffs and Vineburn agree that “Vineburn has made a ‘proposal to start cleaning-up the impacted ground water’ identified by the 2020 Subsurface Report.” 22 acknowledged the LARWQCB would require further investigation and likely would require Vineburn to “remediate groundwater at the Former Nardon Site” and at the Farivar Property. Additionally, Luis applied the cleanup goal he anticipated the LARWQCB would require and rejected other possible remediations he opined would not comply with his predicted LARWQCB remediation order requiring further investigation. More specifically, according to Luis, “Under the oversight of the LARWQCB, the California MCLs are being used as cleanup goals for the Former Square D Site. [Citation.] Based on my experience at other sites in California, it is common for California regulatory agencies such as the LARWQCB to apply the California MCLs as cleanup goals for sites in California. Therefore, for contaminants with established California MCLs it is likely the LARWQCB will apply the California MCLs as cleanup goals at the Former Square D Site for contaminants originating at the Former Nardon Site.” With respect to Maddux, plaintiffs’ undisputed facts show Maddux owned the Nardon facility from 2005 through 2013 and did not “take any measures to prevent the migration of the Contamination onto the Farivar Property” or to remediate the contamination. Plaintiffs, however, presented no evidence Maddux was aw