Plaintiff and appellant KFC Western, Inc. (KFC) appeals a judgment of dismissal following the sustaining of a demurrer without leave to amend interposed by defendants and respondents Alan Meghrig and Margaret Meghrig (the Meghrigs) to KFC's first amended complaint.
The issues presented include: whether KFC's cause of action under Health and Safety Code section 25363
For the reasons discussed, we conclude the cost recovery action under section 25363 is barred because section 25317 excludes refined petroleum. However, with respect to the nuisance and trespass claims, KFC is entitled to amend. The judgment therefore is reversed in part and remanded and otherwise is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In September 1975, for $152,000 the Meghrigs sold certain real property on Western Avenue in Los Angeles to KFC which operated a Kentucky Fried Chicken franchise on the property. Unbeknownst to KFC at the time of the purchase, the property allegedly has been contaminated by the release of refined petroleum products from the operation of a gasoline station and/or leakage from underground storage tanks on the site. This resulted, inter alia, in elevated levels of lead and benzene in the soil. In October 1988, while improving the property, KFC through its engineer discovered the contaminated soil.
The City of Los Angeles Department of Building and Safety issued a corrective notice ordering all construction at the property to stop pending an analysis of the contaminated soils and the obtaining of a clearance from the
KFC maintained the contamination was caused by the Meghrigs' negligence in operating a gasoline station on the property before they sold it to KFC. KFC requested reimbursement from the Meghrigs for the cost of cleanup. The Meghrigs refused.
On December 9, 1991, KFC filed an environmental cost recovery action under section 25363.
The Meghrigs filed a demurrer to the first amended complaint on the grounds the cost-recovery action was precluded by the petroleum exclusion found in section 25317, and the remaining causes of action were barred by the statute of limitations and other grounds.
The trial court sustained the demurrer without leave to amend as to all causes of action and dismissed the action. This appeal followed.
KFC contends: (1) the trial court erred in failing to defer to the Department's interpretation of the petroleum exclusion; (2) it is entitled to amend to allege a continuing nuisance and a continuing trespass.
1. Standard of review.
When a demurrer is sustained without leave to amend, we decide whether there is a reasonable possibility the defect can be cured by amendment. If it can, the trial court abused its discretion and we reverse; if not, there was no abuse of discretion and we affirm. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
2. Cost recovery action barred by statutory petroleum exclusion.
The recent case of Ulvestad v. Chevron U.S.A., Inc. (C.D.Cal. 1993) 818 F.Supp. 292, is factually very similar to the one before us. There, Ulvestad owned property in Santa Ana which was contaminated with gasoline leaked from underground storage tanks. A former owner built a filling station on the property in 1926, and installed four underground storage tanks between 1926 and 1938. In 1953 Signal Oil Company, predecessor of Chevron, U.S.A., Inc., leased the property. Ultimately, title to the property passed to Ulvestad. Thereafter, the service station was dismantled and three of the four underground tanks were extracted. Ulvestad was alerted to the existence of a fourth tank, removed it in 1989, and discovered that gasoline from the tanks had contaminated the soil and groundwater. (Id., at p. 293.)
Ulvestad sued Chevron on various theories. Chevron argued Ulvestad's causes of action under the Act (§§ 25300-25395) should be dismissed because refined petroleum is excluded from the reach of the Act. Chevron pointed out the Act contains a "petroleum exclusion" that removes petroleum from the Act's definition of "hazardous substances." Ulvestad, joined by amicus curiae, the Department (which is also amicus curiae in the instant case), argued the exclusion did not apply to refined petroleum products such as gasoline. (Ulvestad v. Chevron U.S.A., Inc., supra, 818 F. Supp. at p. 293.)
This case raises the issue  whether the petroleum exclusion provision of California's Hazardous Substance Account Act excludes refined petroleum
Section 25316 of [the Act] defines "hazardous substances" broadly to include a number of different dangerous chemicals listed in various state and federal laws. However, section 25317 of the Act excludes from the definition (and therefore the Act) "[p]etroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance...." Cal. Health & Safety Code § 25317. The issue in this case is whether the exclusion applies to refined petroleum products, such as gasoline. 
A. Plain Meaning
The California Supreme Court has long held that analysis of state statutes begins with "the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent." Kimmel v. Goland, 51 Cal.3d 202, 208, 271 Cal.Rptr. 191, 793 P.2d 524 (1990) (citations omitted). In ascertaining intent, the court "look[s] first to the language of the statute, giving effect to its `plain meaning.'" Id. at p. 209, 271 Cal.Rptr. 191, 793 P.2d 524 (citing Tiernan v. Trustees of Cal. State University & Colleges, 33 Cal.3d 211, 218-219, 188 Cal.Rptr. 115, 655 P.2d 317 (1982)).
If the plain meaning is apparent, this court need not go further. The California Supreme Court is clear concerning statutory interpretation:
To determine the intent of legislation, we first consult the words themselves, giving them their usual and ordinary meaning. When "statutory language is ... clear and unambiguous there is no need for construction, and courts should not indulge in it." The plain meaning of words in a statute may be disregarded only when that meaning is "`repugnant to the general purview of the act,' or for some other compelling reason...."
The starting point for deciding whether the terms of the Act apply to gasoline is section 25317's petroleum exclusion. That section states expressly that petroleum, crude oil, and crude oil "fractions" are excepted from
This is the same result reached by the Ninth Circuit in interpreting the almost identical statute in the petroleum exclusion of the federal Superfund law.
B. Agency Interpretation
Moving beyond the plain meaning of the Act, plaintiff argues that the Amicus  Department  has, since the Act's inception, interpreted the petroleum exclusion in a manner supporting the plaintiff's position. As the agency responsible for enforcing the Act, the Department's interpretation should ordinarily be accorded considerable weight and deference. However, the Department's interpretation is not persuasive here.
First, the Department's interpretation of the petroleum exclusion provision is directly contrary to the EPA's and Ninth Circuit's interpretation of the nearly identical provision within the federal Superfund statute. Wilshire Westwood, 881 F.2d at 803-810.
[Therefore, the Department's position is not entitled to deference as an agency interpretation. "`To hold otherwise might help perpetuate the problem' of `"`house rules of the agency'"' which are promulgated without public notice, opportunity to be heard, filing with the Secretary of State, and publication in the California Code of Regulations." (Grier v. Kizer (1990) 219 Cal.App.3d 422, 435 [268 Cal.Rptr. 244], citing Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 205 [149 Cal.Rptr. 1, 583 P.2d 744], italics added.)]
Amicus Department argues that its narrow interpretation of the Act's petroleum exclusion clause is consistent with Congress' express intent in CERCLA to allow states to regulate more comprehensively than is permitted under federal law (citing CERCLA's savings provision at 42 U.S.C. § 9614). However, although the California Legislature may have been empowered by Congress to strictly regulate the clean-up of petroleum spills as hazardous substances, the California statute's wording reveals the Legislature declined to do so. The court cannot ignore the plain wording of the Act, which, like its federal counterpart, excludes refined petroleum from the ambit of the Act's influence.
The fact that the Legislature has annually reviewed and approved the Department's expenditure of funds from both the Act and the 1984 Bond Fund for refined petroleum contamination remediation cannot be taken as tacit approval of the Department's position here. In fact, it appears the Legislature acknowledges the limited reach of the Act concerning refined petroleum spills: In 1989, the Legislature established the Petroleum Underground Storage Tank Cleanup Program in California Health and Safety Code § 25299. That chapter's express purpose is to deal with the problems associated with leaking underground petroleum tanks, and nowhere does that
In light of the plain meaning of section 25317's language excluding refined petroleum and its constituents from the Act, the EPA's and Ninth Circuit's broad interpretation of the nearly identically-worded "petroleum exclusion" in federal CERCLA, and the apparent intent of the Legislature to leave refined petroleum out of the Act, [refined petroleum is excluded from the reach of the Act].
The court realizes the concerns this ruling may raise. Without clarifying action by the California Legislature, [this] holding could impede future efforts by the Department to enforce clean-ups under the Act involving refined petroleum spills. Nevertheless, the plain meaning of the Act's petroleum exclusion is inescapable. In the absence of controlling authority, this court is compelled to reach this conclusion. It is for the California Legislature, not the courts, to clarify the Act if the Legislature wants to include refined petroleum.  [End of district court opinion.]
3. This court's conclusion re the petroleum exclusion.
In view of the above, we conclude the petroleum exclusion of section 25317 applies to refined petroleum products such as gasoline. The Department contends Ulvestad erred in failing to defer to the Department's interpretation and that the Legislature has approved the Department's administrative construction of the statute. However, the Legislature has not amended the statute in light of Ulvestad, and it therefore appears the Legislature has approved Ulvestad's reading of the petroleum exclusion.
Accordingly, the trial court properly sustained the demurrer to the first cause of action for cost recovery under section 25363 without leave to amend.
4. Cause of action may be stated against former owners for continuing nuisance based on soil contamination.
a. General principles.
Civil Code section 3479 defines a nuisance as "[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, ..." A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. (Civ. Code, § 3480.) Every other nuisance is private. (Civ. Code, § 3481.) However, a plaintiff may maintain a private nuisance action based on a public nuisance when the nuisance causes an injury to plaintiff's private property or to a private right incidental to such private property. (Civ. Code, § 3493; Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 342 [23 Cal.Rptr.2d 377] (review den.).)
b. No merit to the Meghrigs' theory they cannot be held liable for creating a nuisance on their own property.
The Meghrigs do not contend the alleged soil contamination does not fall within the statutory definition of nuisance. Instead, the Meghrigs argue KFC cannot state a cause of action for private nuisance because the Meghrigs consented to the use of their own land and there was no invasion of another's interest in the use and enjoyment of the land. In other words, the Meghrigs submit they were entitled to contaminate their own property. The argument fails.
Under Newhall Land & Farming Co. v. Superior Court, supra, 19 Cal. App.4th at pages 341-345, a landowner may state a cause of action for a private continuing nuisance against a previous owner whose activity contaminated the property.
In Newhall the defendants similarly argued "that, since they were the owners of the property at the time of the contamination, they could not be
Newhall found "a fundamental flaw in this argument. Regardless of whether a potential plaintiff existed at the time of the contamination, the fact remains that [defendants'] conduct created a condition on the property which was, and which remains, injurious to health. Once [defendants] sold their interests without disclosing the contamination, other parties became involved who, upon discovery of the contamination, could bring a claim against [defendants] in an attempt to force them to accept responsibility for their creation of a nuisance. [I]n the context of this case, the time of the creation of the nuisance is immaterial with respect to [defendants'] liability." (Newhall Land & Farming Co. v. Superior Court, supra, 19 Cal. App.4th at p. 344.)
Pursuant to Newhall's rationale, the Meghrigs' status as former owners does not immunize them from a nuisance action arising from their activity on the property.
Nonetheless, the Meghrigs contend Newhall is inapposite because there the plaintiffs alleged the hazardous substances leached through the soil and polluted the groundwater, resulting in a public nuisance. (Newhall Land & Farming Co. v. Superior Court, supra, 19 Cal. App.4th at p. 341.) However, Newhall did not turn on that point. After noting the allegations of polluted groundwater supported the existence of a public nuisance (ibid.), Newhall stated "... a public nuisance does not in itself create a private nuisance as well. [¶]
c. KFC entitled to leave to amend to allege a continuing nuisance.
In the complaint, KFC alleged the contamination of the property was discovered in October 1988. KFC commenced this action on or about December 9, 1991. The issue is whether the cause of action is barred by the applicable three-year statute of limitations. (Code Civ. Proc., § 338, subd. (b); Mattos v. Mattos (1958) 162 Cal.App.2d 41, 43 [328 P.2d 269].)
"Where a nuisance is of such character that it will presumably continue indefinitely it is considered permanent, and the limitations period runs from the time the nuisance is created. [Citations.]" (Phillips v. City of Pasadena, supra, 27 Cal.2d at p. 107.) For example, construction of a building partly upon the land of another is viewed as a permanent encroachment thereon and the entire cause of action accrues when the encroachment occurs. (Mattos v. Mattos, supra, 162 Cal. App.2d at p. 43.)
However, "if the nuisance may be discontinued at any time it is considered continuing in character. [Citations.]" (Phillips v. City of Pasadena, supra, 27 Cal.2d at p. 107; accord Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at p. 869.) In case of doubt as to the
Mangini reasoned "plaintiffs' land may be subject to a continuing nuisance even though defendant's offensive conduct ended years ago. That is because the `continuing' nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur." (Mangini v. Aerojet-General Corp., supra, 230 Cal. App.3d at p. 1147.) Further, whether contamination by toxic waste is a continuing injury is ordinarily a question of fact turning on the nature and extent of the contamination. (Id., at p. 1148; accord, Capogeannis v. Superior Court, supra, 12 Cal. App.4th at p. 683.)
Here, in view of the nature of the alleged nuisance, namely, soil contamination, we cannot say as a matter of law the nuisance was permanent. Accordingly, KFC is entitled to leave to amend to allege a continuing nuisance.
5. KFC entitled to amend to allege a continuing trespass.
A continuing trespass theory in a situation such as this, i.e., where contaminants have been left on the property by a prior owner, is sanctioned by the Restatement Second of Torts. (Mangini v. Aerojet-General Corp., supra, 230 Cal. App.3d at p. 1148; Newhall Land & Farming Co. v. Superior Court, supra, 19 Cal. App.4th at p. 345; compare Capogeannis v. Superior Court, supra, 12 Cal. App.4th at pp. 674-675.) Restatement Second of Torts, section 161(1) provides: "`A trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor has tortiously placed there, whether or not the actor has the ability to remove it.' Under this definition, `tortious conduct' denotes that conduct, whether of act or omission, which subjects the actor to liability under the principles of the law of torts. (Rest.2d Torts, § 6.)" (Newhall, supra, 19 Cal. App.4th at p. 345, italics added.)
A private nuisance is a "`civil wrong'" (Newhall Land & Farming Co. v. Superior Court, supra, 19 Cal. App.4th at p. 342; Venuto v. Owens-Corning
With respect to the issue of the statute of limitations, the analysis is essentially the same for trespass as it is for nuisance. (Mangini v. Aerojet-General Corp., supra, 230 Cal. App.3d at p. 1148; Capogeannis v. Superior Court, supra, 12 Cal. App.4th at p. 675.)
Further, as discussed above in the context of the nuisance cause of action, the concept of consent is unavailing to a former owner whose activities contaminated the property. (Newhall Land & Farming Co. v. Superior Court, supra, 19 Cal. App.4th at p. 347.)
Accordingly, KFC is entitled to amend to plead a continuing trespass based on the alleged soil contamination of the property by the Meghrigs.
The judgment is reversed in part and remanded; KFC is entitled to file an amended complaint setting forth causes of action for continuing nuisance and continuing trespass. The judgment is otherwise affirmed.
KFC to recover costs on appeal.
Kitching, J., and Hinz, J.,