Ccsf Vs Regal Stone

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San Francisco Superior Courts Information TechnologyGroup

Document Scanning Lead Sheet Dec·10·2007 10:30 am

Case Number: CGC..07-469876 Filing Date: Dec-10-2007 10:20 Juke Box: 001

Image: 01963232

COMPLAINT

CITY AND COUNTY OF SAN FRANCISCO AND PEOPLE OF THE VS. REGAL STONE, LTl

001C01963232

Instructions: Please place this sheet on top of the document to be scanned.

SUM~NS

SUM·100

(C/TAeION JUDICIAL)

lOR COURr USEOM.Y (SOLOPARA De LA CORTE)

usa

NOTICE TO DEFENDANT: fA VIsa At. DEMANDAOOJ: n.EGAL STONE, LTD; FLEET M1\N1\GEMEl'rr LTD; UANJIN' SHIPPING co., LTD; SYNERGY MANAGEMENT SERVICES;

r

I

SYNERGY MA'R.tNR T.TMtTF.n; ,TOHN ,T. rOTA, AN INDIV!DU.aL,

and DOES 1 through 100

YOU ARE; BEING SUED BY PlAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTEJ:

CITY AND COUNTY OF SAN FRANCISCO AND PEOPLE OF THE STATE OF CALIFORNIA

You have 30 CAlENDAR DAYS after this summons and legal papers are set'Yed on you to file a written response at thIs court and have a copy served on the plaintiff. A fetter Of phoM call will not protect you. Your written response must be In proper legal fonn If you want the court to hear your case. There may be • court form that you can use for your response. You can flnd these court forms and more Information at the California Courts Online Self-Help Center (www.courtlnfo.C8.gov/selfhe'p), your county law library, Of' the courthouse nearest you. If you cannot pay the flUng 'ee, ask the court clerk fora fee waiver form. If you do not file your response on time, you may los. the cas. by default, and your wag", money, and property maybe taken without further wamlng from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral servlc•• If you cannot afford an attorney, you may N eUgtb1e for free legal services from a nonprofit legal services program. You can locat. the.. nonprofit groups at the California Legal Services Web site (www.lawhe1pealtfornla.org), the CaUfornfa Courts Online Self--HelpCenter (www.courtlnfo.ca.gov/selfhelp). Of' by contacting your local court Of county bar assoctatlon.

11ene30 D1AS DE CALENDARIOdespws de que'e enhguen esta eltacldn y pape/es legales para presenta, una respuesta por escrito en esta eorle y hacer que se enhgue una eopla al demandant.. Una carta 0 unall,mada "/ef6nlca no 10protegen. Su respuesta por .scrito tlene que estar en formatolega' eorrecto sl desea que procesen su esse en la eorte. Es pos/ble que haya un formulario que usted pueda usa' para su respuesta. Piled. eneontrar estos formularios dela corte y m~s Informac/dn en el Centro de Ayuda de las Cortes de Califoml. {www.courtlnfo.ca.govlselfhelplespanollJ.en.ablbllotec.de/eyes de su condado 0 en la corte que Ie quede m~s ce~a. SI no puede pag., la cuot. de presentae/dn, plda al secretario de/a corte que Ie dIJun formulario d. exeneldn de pago de cuota$. SI no presenta su nspuesta II tlempo, puede ptrder., caso por Incumpllmlento y la corte Ie pod" qultar su sueldo, dinero y blenes sin m~s advertenc/a. Hay otros requls/fos legales. Es recomendabl. quellame II un 'bogado Inmedlatamente. SI no conace a un abogtldo, puede "amar I un servlclo de rem/s/dn a abogados. SI no puede paga, a un Ibogado, es pos/bl. que cumpll con los nqufsltos para obtener servfelos legales gratu/tos de un program. tH serv/c/os lega'es sfn fines delucro. Puede encontrar estos gropos s/n tines tH lucro en e/s/tlo web de Cal/fornl. Legal Sewfces" (www.lawhe'pcarifom/a.0tT11, en eI Centro de Ayuda de las Cortes de Cat/fom/a, www.courtfnfo.ca.govlselfhelplespanoV) 0 pon"ndose en contaeto con la corte 0 el coleglo de abo The name and addressof the court Is: CASE N • fEI nombre ydirecci6n de la corte es): INUmetodelC.so;' Superior Court ~--------------------------~

400 McAllister Street San Francisco CA 94102 Unlimited Civil Jurisdiction

The name, address,and telephone numberof plaintiffs attorney, or plaintiffwithoutan attorney, is: fEI nombre, la direccl6n y el numero de te/6fono del abogado del demandante, 0 del demandante que no liene abogado, es):

Thomas S. Lakritz (SBN 161234) 415-554-6547 Deputy City Attorney City Hall, Room 234, 1 Dr. Carlton B. Goodlett Place ~An Fr~n,..i.e('W~..~

DATE:

DEC 10 ZUUl.

94:t.Ql~A~~'·

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(Fecha)

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II STr:r:>r::r:: •

Clerk,by

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(Secretarial

(Adjunfo)

on behatfof (specify):

D D D D

CCP 416.10(corporation) CCP 416.20 (defunctcorporation) CCP 416.40(association or partnership) other (specify): by personal delivery on (date):

under.

FOM'I Adopted for MandatOl'Y UH .b:lldaf C«J'd 01 ClIIlfcn'lta SUM.100 (Rev. ~ 1. 2004J

415-554-4747

CJ CCP 416.60 (minor) CJ CCP 416.70 (conservatee) CJ CCP 416.90 (authorized person)

SUMMONS

--------------_._--_. - -_.--. -. --------_._-.

--.-

.~--------

ATTORNEV OR PARfY WITHOUT ATTORNEY (NMIIJ. SUIt. 8M~, Mtd NbU);

omas S. Lakrit% (SBN 161234) Deputy City Attorney City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA '!'£'..~l!~.: A

FOR

94102-4682

415-554-6547 Pain i

F.I."':~.:

nd

oun

Franci seo

SUPERIOR COURT Of CAlIFORNIA,COUNTY OF San

srnttTAClOM:ss:400 McAlli9ter StreeL

Same CrTYANOZIPc6oE:San Francisco, CA ! •.I.~H:".II!:Unlimt tpn Clvi 1 JurlAoicticn WI ~ AnMF!t"

CASENAME:

CCSF, et al. v , Regal Stone, Ltd., et al.

CIVIL CASE COVER SHEET [XJ Unlimited U Umfted

~~~'::d~

~=';,'d~d is

Complex Case Designation Counter Joinder

0

CJ

FI!cd\l:ft't first nppearnnco by defendant exceeds $25 000 $25 000 or less (Cat. Rulesof Court. rule 3.402) Items 1·6 below must be co teted see instructions on 1. Check one oox below for the case type that best descnbes thts case: Auto Tort Auto (22) UnInsured mototist (46) Other PVPDIWD(persona' InJurylProperty DamageIWrongful Death) Tort

CJ CJ

CJ Asbestos (04) CJ ProductItability(24) c:J Medicalmalpractice (45) CJ Other PIJPOI'ND (23) Non.pWDtWD (Other) Tort

Contract

CJ Breach of contractlwarranty (OS) CJ Rufe3.740conections(09) 0 Other collections (09) 0 Insurancecoverage (18) 0 Other contract (37) Real Property Eminentdomalnl1nverse condemnation (14) Wrongful evfction (33)

D D 0

CJ Businesstort/unfair business practice (07) Other real property (26) c:J eMi rights (08) Unlawful DetaIner c::J Defamation (13) D Commerdal (31) c::J Fraud (16) 0 Residential (32) c:J Intenectuat property (19) 0 Drugs (38) c:J Professionalnegligence (25) Judicial Review c::J Other non-PIJPONVD tort (35) 0 Asset forfeiture (05) Employment Wrongful termination(36) Other employment (15)

CJ c::J

0

0 0

Petidonre: arbitration award (11) Writ of mandate (02) OtherJudicial review (39)

Provfslonally Complex Civil LItigatIon (Cal. Rules of Court, rules 3.400-3.403)

CJ AntitrusVTrade regutation(03) CJ Construction defect (10) CJ Mass tort(40) CJ Securities litigation (28) DO EnvironmentaVToxie tort (30)

o

Insurancecoverage daims arising from the abovelisted prov;stonally complex case types (41)

Enforcement of Judgment Enforcementof judgment (20) Miscellaneous Civil Complaint

o

CJ RICO (27)

o

Other complaint (not specified above) (42) Miscellaneous Civil Petition Partnership and corporategovernance(21) Other petition (not specified above) (43)

o o

2. This case DO Is 0 Is not complex underrufe 3.400 of the California Rutesof Court.If the caseis complex, markthe factorsrequiring exceptional Judicial management: a. DO Largenumberof separately represented parties d. 00 large numberof witnesses b. 00 Extensive motionpractice raising difflCt.dt or novel e. DO Coordination withrelatedactions pending in oneor morecourts issuesthat win be time--<:onsuming to resolve in other counties, states, or countries, Of in a federal court r. 0 Substantial posljudgment judicialsupervi::>tofl c. I X I Substantial amount of documentary evidence 3. Remedies sought (check a" that apply): a. 00 monetary b. 00 nonmonetary; declaratory or Injunctive relief c. 0[] punitive 4. Numberof causesof action (specify): 5. This case c::J Is is not a class actionsuit. 6. If there are any knownrelated cases,file and servea noticeof relatedcase. (You may use form CM-015.)

rn

Deecr:-.bcr 10, 2007 Thomas S, Lakritz (SBN 161234) D~tc:

(TYPEOR PRINT NAME)

I

. . . . , . . . . , ... L ~r__+-~~~a~~~~~t~~~~~~~~~~

__

NOTICE • Plaintiffmustfnethis coversheet with the first paperfiled in theactionor p eeding (except smallclaimscasesor casesfiled underthe Probate Code,FamilyCode,or WelfareandInstitutiOns Code).(Cat. Rulesof Court, rule 3.220.) Failureto file may result in sanctions. • File this cover sheet in addition to any cover sheetrequired by local court rule, • If this case is complex underrule 3.400 et seq.of theCalifornia Rulesof Court,you must servea copyof this cover sheeton an other partiesto the actionor proceeding. • Unlessthis is a collections case underrule 3.740 or a complex case, this cover sheetwill be used for statistical purposes only. Pa form AdOp!eG tor Mandatory use JudtClaf COl.lnClI 01 Caf~ CAHl10 lReY. ......, t. 2007}

CIVIL CASE COVER SHEET ~

1cU

eat. RuteI 01Court. Aies 2.30. 3.220, 3t00-3."03, 3.7"0; U( QnS" eat. Standards01JuOO8l Admt1istnltion, Sid. 3.10 ~ .-'IUS

.

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(

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DENNIS J. HERRERA t City Attorney

2

THERESE M. STEWART, State Bar11104930 Chief Dcputy City Attorney

SUMMONS ISSUED

.'

State Bar # 139('()9

...., UL'" ""14 'u.

THO~1AS

5

6 7

ay·

S. LAKRITZ, St:ltcDri 161234 Deputy City Attorneys City Hall, Room 234

10

1 Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682 Telephone: (415)554·6547 Facsimile: (415) 554-4747 E·Mail: [email protected]

SUPERIOR COURT OFTHE STATE OF CALIFORNIA

12

COUNTY OFSAN FRANCISCO

13

UNLIMITED JURISDICTION

15

16

Plaintiffs,

17 ·18 19

20 21 22

vs, REGALSTONE, LTD; FLEET MANAGEMENT LTD;HANJIN SHIPPING CO., LTD; SYNERGY MANAGEMENT SERVICES; SYNERGY MARINE LIMITED; JOHN J. COTA, AN INDIVIDUAL, AND

DOES ONE THROUGH 100, Defendants.

D.STEPPE

1EPAmfENT2J2

Attorneys for Plaintiffs CITYAND COUNTY OF SAN FRANCISCO AND PEOPLE OF TIlE STATE OF CALIFORNIA

CITYAND COUNTY OF SAN FRANCISCO AND PEOPLE OF THE STATE OF CALIFORNIA,

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MAY 0 9 2008 .gmAM

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GOROOflPARK - LI, CLERK

DO!-.lALD P. ivIARGOLIS, State Uar# IIM~IS

4

FILED

Su'r~IOR COURT COUNT '( 0; SAN fR !.cHCISCa

Case No.

L

CGC-07-1J6987°-

COl\IPLAINT FOR DAl\fAGES, CIVIL PENALTIES, AND INJUNCTIVE RELIEF FOR: 1. VIOLATION OFLEl\IPERT. KEENE.SEASTRAND OIL SPILL PREVENTION AND RESPONSE ACT 2. NEGLIGENCE 3. NEGLIGENCE PER SE

4. NUISANCE

5. TRESPASS

23

6. UNJUST ENRICIIi\IENT

24

7. UNFAIR BUSINESS PRACTICES

25 26 27

28 1 COMPLAINT, CASE NO.

n:'govem\as2007'(J8002 t9'(J04S42 t 2.doc

c

( INTRODUCTION

2

I.

On the morning 0 fNovember 7, 2007, the M/V Cosco Busan, a 65, 131-ton,900-foot

3

long container ship, departedthe Port ofOakland and headed for the Pacific Ocean, bound for

4

South Korea. TIle J31-foot wide ship was required to pass through a 2,200-foot opening between

5

two tower bases supportingthe western span of the San Francisco-Oakland Bay Bridge. The ship

6

failed to navigate successfully through this almostone-half mile wide gap. Instead, at about 8:30

7

a.m., the ship hit the base of the "D," or "Delta" Tower, tearing a gash in the port side ofthe ship's

S

hull, ripping open fuel tanks on the ship and releasing about 58,000 gallons of heavy bunker fuel

9

into the San FranciscoBay.

10

2.:

The release of the fuel fouled the Bay waters, killing or injuringat least 2,200 birds,

11

as well as marinemammals, fish, invertebrates and other marine organisms,damagingproperty

12

along the San Francisco waterfrontcontrolled, managed, maintained, and regulated by San

13

Francisco, harmingthe livelihoodsof the fishermen who depend on crab and other sea life in and

14

about the Bay, impairingthe public's enjoyment of the recreational opportunities affordedby the

15

Bay, and compellingSan Francisco and its taxpayers to expend substantial sums ofmoney for the

16

deploymentof City personnel for investigation, remediation, and monitoringofenvironmental

17

conditions.

18

3.

In this action, the City and Countyof San Francisco seeks compensation for all of its

19

costs of investigating and respondingto this catastrophic and wholly avoidableoil spill, including,

20

without limitation, the costs incurred to assessthe extent ofthe damage,mobilize and train

21

volunteers, remedydamages causedby the spiny and monitor conditions for continuingimpactsof

22

the spill. The City also seeks to recover for thedamage to natural resources and to recreational

23

opportunities. The City also requests injunctive relief to require defendants to develop and

24

implementa plan to assess, remediate, and monitor for as long as is necessary, all harm to property,

25

marine life, and recreational interests causedby defendants'catastrophicblunder. The-City

26

Attorney in additionseeks civil penaltieson behalfof the People of the State of Californiafor

27

defendants'violationofa host of laws designed to protect the delicate marineenvironment in and

28

about the Bay. 2 CO~1PLAINT, CASE

NO.

n:\govem\as2001\0800219\004S4212.doc

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( VENUE

1 2

4.

Venue is proper in this Court, becausethe spill, discharge, and violationof laws

3

occurred, in part,in the City and Countyof San Francisco, and becausedefendantsat all relevant

4

times have done business in the City and CountyofSan Francisco. (Gov. Code. § 8670.59.)

5 6

PARTIES

5.

Plaintiff CITY AND COUNTY OF SAN FRANCISCO ("San Francisco," or "the

7

City") is a municipal corporation duty organized and existingunder the Jaws of the State of

8

California. Under the BurtonAct, Stars, 1968, ch, 1333, San Francisco, acting by and through the

9

Port ofSan Francisco and other City departments or agencies, has at all relevant times had complete

10

authority to use, operate, maintain, manage, regulate, improve, and control the Port and facilities

1I

along approximately 7.5 miles ofthe easternand northern waterfront ofSan Francisco, adjacentto

12

the San Francisco Bay.

13

6.

PlaintiffTHE PEOPLE OF TilE STATE OF CALIFORNIA C'thePeople")

14

appear by and throughDennis J. Herrera, San Francisco City Attorney, who asserts the seventh

IS

cause of action for penaltiesunder Businessand Professions Code section 17200,as authorized by

16

Business and Professions Code section 17204. The City has a populationin excess of750,000 as

17

determinedby the Demographic Research Unit of the State ofCatifomia's Department of Finance.

18

7.

Plaintiffs are informed and believe and on that basis allege that defendant REGAL

19

STONE, LTD. is, and at all relevanttimes was, the owner,operator or time-charterer 0 f the Cosco

20

Busan, and that this defendant has at all relevant times done business in the State of Califomia by

21

allowing its operation in California waters,

22

8.

Plaintiffs are informed and believe and on that basis allegethat defendant FLEET

23

1\IANAGEl\IEl''T LTD., whichmay be otherwise known as Fleet Ship Management, Inc.

24

(hereafter, "FleetManagement Ltd."), is, and at all relevant times was, the operator,or sub..

25

manager,ofthe Cosco Busan, and that this defendant has at all relevanttimes done business in the

26

State ofCaHfomia by operatingthe ship in California waters.

27 28

9.

Plaintiffs are informed and believe and on that basis allegethat defendant IIANJIN

SHIPPING CO., LTD. is, and at all relevant times was, the owner of the spilled bunker fuel, 3 CO~1PLAINT,

CASE NO.

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(

(

and/or the owner, operator, or charterer of the ship, and that this defendant has at all relevant times 2

done business in the State ofCalifomia. 10.

Plaintiffs are informed and believe and on that basis allege that defendant

4

SYNERGY l\tANAGEl\IENT SERVICES is, and at all relevant times was. an agent ofdefendant

5

Regal Stone, Ltd.,and therefore that this defendant has at all relevanttimes done business in the

6

State of Califomia, and at all relevant times actedwithin the course and scope of its agency.

7

11.

Plaintiffs are informedand believeand on that basis allege that defendant

S

SYNERGY i\IARINE I.. Tl\IITED is, and at all relevant times was, an agent of defendant Regal

9

Stone, Ltd., and that this defendanthas at all relevanttimes done business in the State ofCalifornia,

10

and at all relevanttimes acted within the course and scope of its agency.

11

12.

Plaintiffs are informed and believeand on that basis allege that defendant JOliN J.

12

COTA is an individual residingin Sonoma County, California,and 'vas piloting the ship at the time

13

of the incident.

14

13.

Each ofthe above-named defendants is liable for the torts, breaches, and other

15

wrongs ofthe others, and was acting within the course and scope of its or his employment or

16

agency.

17

14.

The true names or capacities,whetherindividual, corporate, associate, or otherwise,

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of DOE I through DOE 100 are unknown to plaintiffs. who thereforesue such defendants by such

19

fictitious names, and who will amend this complaint to show their true names and capacitieswhen

20

ascertained. Plaintiffsare is informedand believeand thereon allege that each of the defendants

21

designated as a DOE is responsible in some mannerfor the wrongsherein referred to and thereby

22

proximatelycausedinjuries and damages as alleged herein.

23 24

FACTS

15.

Plaintiffsare informed and believe, and on that basis allege, the following facts: The

25

MN Cosco Busan is a 6S, t 31·ton container ship, longer than 900 feet, constructed in or about

26

2001. On November 7, 2007, the ship departed the Port of Oakland,bound for South Korea. It was

27

required to follow a routine route through the San Francisco Bay toward the Golden Gate. That

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route included passing beneath the San Francisco-Oakland Bay Bridge. The ship's pilot intendedto 4 CO~PLAINT,

CASE NO.

n:\govem\as200r.oSOO2 I9'OO4S42 I2.doe

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steer between two bases supporting towers on the west span of the bridge. The spans were 2,200 2

feet apart. The ship was only 13t feet wide. The pilot of the ship - defendant John J. Cola - failed

3

to dear the "Delta" tower west of Verba Buena Island and, as a result, the ship collided with the

4

fender of the tower base.

5

16.

Plaintiffs are further informed and believe, and on that basis allege, the following

6

facts: The ship's collision with the tower base fender created a deep gash in the hull, tearing open

7

tanks carrying bunker fuel. Approximately 58,000 gallons ofbunker fuel poured out of the ship

8

into the Bay waters.

9

17.

The bunker fuel, a heavy, viscous and toxic substance, killed thousands of sea birds,

10

fouled beaches and wildlife habitats, threatened the livelihood of fishermen who depend on their

11

catch of crabs and other sea life, and impaired boating, swimming, recreational fishing, walking or

12

jogging and other such opportunities for members of the public to use and enjoy the fouled beaches,

13

piers, wharves, and other facilities.

14

18.

As an actual and legal result of the spill, the public was prevented from enjoying the

IS

use of several beaches and San Francisco Port facilities, including wharves and piers, because of the

16

risk of exposure to hazardous materials, bodily injury and property damage. The beaches included,

17

without limitation, Baker Beach, Crissy Field, and China Beach.

18

19.

The opening of the crab season, and all other fishing, were postponed, because of the

19

human health risks presented by consumption of sea animals taken from or through the

20

contaminated waters.

21

20.

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PlaintiITSan Francisco has sustained, and will continue to sustain, economic

damage. This damage includes, without limitation, the costs and expenses associated with:

23

a. Establishing an incident command post at Treasure Island to organize, on an ongoing

24

basis, activities in response to the spill ('tresponse activities"), assessment ofdamage,

2S

and monitoring; b. Committing time, labor, and materials to identifying, assessing and cleaning up San

26

Francisco property damaged by the oil spin, containing the oil slick caused by the

27

28 5 CO~1PLAINT, CASE -'~--

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spill, monitoringforcontinuingdamage and otherwise minimizingand mitigating

2

furtherdamage; c. Engaging fishermen and their vessels in the effort to clean up oil and attempt to save

4

afflicted sea life, in the immediate aftermath of the oil spilt;

5

d. Recruiting, training and supervising volunteers to performcleanup activities and

6

tasks to mitigate and minimizedamage to natural resources, includingbeaches and

7

wildlife; e. Paying San Franciscoemployees for their time respondingto the oil spilt, which

8

temporarily precludedthese employees' performanceofregularjob duties;

9 10

f. Paying employeesof the Port of San Franciscowho were unable to occupy Port

11

offices in the immediate aftermath ofthe spill in order to perform their regularjob

12

duties; and g. Impressing San Francisco employees into performingduties on an overtime basis to

13

14 15

16

respondon an urgent basis to the crisis created by the oil spill. 21.

PlaintiffSan Francisco has sustained, and witt continue to sustain, additional

economicdamage. This damage includes, withoutlimitation, the loss of: a. Anticipated rents, berthing,dockage and other fees, tax revenues and profit shares

17

from fi shing activities;

18

b. Anticipated income fromcanceled commuter ferry trips and pleasure excursions,

19

includingthose to Alcatraz andAngel Islands;

20

c. Anticipated parking ticket revenues that could not be collectedbecause ofthe

21 22

deploymentofSan Franciscoparkingcontrol officers to non revenue-producing

23

duties; and

24

d. Anticipated tax revenues associated with impactsto tourismand business

25 26

interruption oftenants and lessees ofthe Port ofSan Francisco. 22.

PJaintiffSan Francisco and the Peopleof the State ofCatifornia also have sustained

27

damage through loss ofthe use and enjoyment ofrecreational and other opportunities affordedby

28

the natural resourcesdamagedor threatened by the spilt, including, withoutlimitation,the use of 6 CO~iPLAJNT, CASE

NO.

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.~._---_._-----------------

( public beaches, wharves, piers, pedestrian andbicycle paths, marinas, and seawalls, This damage 2

includes, without limitation,losses arising from:

3

a. Preventionoi the use of San Francisco marinas and harbors by recreational boaters;

4

b. Preventionof the use of Aquatic Park, public beaches, pedestrianand bicycle paths,

5

and other San Franciscomarineenvironmentsby pedestriansand bicyclists,

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swimmers,bathers,and waders, including cancellationof the plannedswim from

7

Alcatraz to AquaticPark;

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c. Cancellationofthe planned triathlon at Treasure Island; and

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d. Prevention ofrecreational and subsistence fishing offofSan Francisco piers and

10

wharves.

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FIRST CAUSE OF ACTION (Damages And Civil Penalties Under Lempert-Keene-Seastrand Oil Spill Prevention and Response Act) (Against An Defendants)

12

13 14

23.

15

Complaint.

16

24.

Plaintiffsreallege and incorporate by reference paragraphs 1 through22 ofthis

The Lempert-Keene-Seastrand Oil Spill Preventionand ResponseAct, Government

17

Code sections 8670.1, et seq. ("the Act") providesthat "[a]ny responsible party, as defined in

18

Section 8670.3 [ofthe Government Code], shallbe absolutely liable without regardto fault for any

19

damages incurredby any injured party whicharise out of, or are caused by, the dischargeor leaking

20

ofoil into or onto marine waters," (Gov.• Code, § 8670.56.5, subd. (a).)

21

25.

"Responsible parties" include "[he owner or transporter ofoil or a person or entity

22

acceptingresponsibility for the oil;" and "the owner,operator, or lessee of, or personwho charters

23

by demise, any vessel ..• or a person or entity acceptingresponsibility for the vessel .•.•" (Gov.

24

Code, § 8670.3, subd. (w).)

25

26.

As the owner, operator, lessee, or charterer by demiseofthe vessel and owner or

26

transporterofthe oil ofthe discharged oil, defendant Regal Stone Ltd. is a responsible party that is

27

absolutelyliable under the Act.

28

7 CO~iPLA[NT, CASE NO.

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n:\Stwem\U2007\080021 9\004542I2.doc:

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( 1

27.

As the owner, operator, lessee, or charterer by demise ofthe vessel and owner or

2

transporter of the discharged oil, defendant Hanjin Shipping Co" Ltd. is a responsible party that is

3

absolutely liable under the Act. 2R.

4 5

29.

30.

As the owner, operator, lessee, or charterer by demise of the vessel, defendant

Synergy Marine Limited is a responsible party that is absolutely liable under the Act.

10 11

As the owner, operator, lessee, or charterer by demise of the vessel, defendant

Synergy Management Services is a responsible party that is absolutely liable under the Act.

8 9

owner, operator, lessee, or charterer by demise of the vessel. defendant Fleet

Management Ltd. is a responsible party that is absolutely liable under the Act.

6 7

A~ the

31.

As the transporter of the oil and the person accepting responsibility for the oil and for

the vessel, defendant John J. Cota is a responsible party who is absolutely liable under the Act.

12

32.

The bunker fuel that was discharged from the vessel is "oil" within the meaning of

13

the Act, which defines "oil" as "any kind of petroleum, liquid hydrocarbon, or petroleum products

14

or any faction or residues therefrom, including ... bunker fuel •..•" {Gov. Code, § 8670.3, subd,

15

(n).)

16 17 18

33.

The San Francisco Bay waters are "marine waters" within the meaning of the Act,

because the Bay is "subject to tidal influence." (Gov. Code, § 8670.3, subd. (i).) 34.

On November 7,2007, defendants discharged or leaked bunker fuel into the San

19

Francisco Bay, and are therefore absolutely liable without regard to fault for an damages that

20

plaintiffs sustained or will sustain.

21

35.

The Act entitles a plaintiff to recover a broad variety of damages, including.. without

22

limitation, the costs of investigation, response, containment, removal and treatment; damages for

23

injury to, or economic tosses resulting from destruction ofor injury to real or personal property; lost

24

taxes, royalties, rents, or net profit shares caused by the injury; destruction, loss, or impairment of

25

use of real property, personal property, and natural resources. (Gov. Code, § 8670.56.5, subd. (h).)

26 27

36.

In addition to those damages, alleged above, in any action brought by a county or

city, the Act entitles such an entity to recover:

28

8 CO~1PLAINT,

CASE NO.

n:\govcm\as2007\OSOO219'()()4S42I2.doc

---------

c

r

a. Damages for injuryto, destruction or loss o~ natural resources, including,but not

t

2

limited to, the reasonablecosts ofrehabiJitating wildlife, habitat, and other resources

3

and the reasonablecosts or assessing that injury,destruction or loss. (Gov. Code, §

4

8670.3, subd. (h)(3»): and b. Damages for loss ofuse and enjoyment of natural resources,public beaches,and

5

other public resourcesor facilities. (Gov. Code, § 8670.3, subd. (h)(7).)

6 7 8 9

37.

The civil remedies provided in the Act are "separateand in addition to, and do not

supersede or limit, any and all other remedies, civil or criminal," (Gov. Code, § 8670.61.) 38.

Plaintiffssustained a variety of forms ofdamage recoverableunder the Act, in

10

excess ofthe jurisdictional limit ofthis Court,including,without limitation,each of the forms of

11

damage alleged in paragraphs20 through 22, above.

12

39.

The Act furtherprovides that "[a]nyperson who intentionallyor negligentlydoes

13

any of the following acts shan be subjectto a civil penalty ofnot Jess than twenty-fivethousand

14

dollars ($25,000) or more than five hundred thousand dollars (S500,000) for each violation,and

15

each day or partial day that a violation occursis a separate violation: •.. Discharges or spills oil into

16

marine waters, unless the dischargeis authorized by the United States, the state, or other agency

17

with appropriatejurisdiction. {Gov. Code, § 8670.66, subd. (a)(3).)

18

40.

The Act furtherprovidesthat ••• [e]xcept as providedin subdivision(a), any person

19

who intentionallyor negligentlyviolates any provisionof [the Act] ..• or any permit,rule,

20

regulation, standard,or requirement issued or adopted pursuantto those provisions,shall be liable

21

for a civil penalty not to exceed two hundred and fifty thousand dollars ($250,000) for each

22

violation of a separate provision,or, forcontinuingviolations, for each day that violation

23

continues." (Gov. Code, § 8670.66, subd. (b).)

24

41.

Plaintiffsare informed and believethat defendants committed a violationof the Act,

25

within the meaningofsections 8670.66, subdivisions (a) and (b), by discharging or spillingbunker

26

fuel into the waters of the Bay, which are marinewaters, Each day or partial day that the oil has

27

remainedand win remain in marinewaters constitutes an additional violation.

28

9 COMPLAINT, CASE NO.

n:'go\lem~2007\0800219\O().$S4212 .doe

(

( 1

42.

Defendants are thereforeliable for civil penaltiesunder Government Code section

2 \8670.66 according to proof.

3

SECOND CAUSE OF ACTION

4

(Damages For Negligence) (Against An Defendants)

5 6

7

8

9

10

Plaintiffsreallegeand incorporate by reference paragraphs 1 through 42 of this

43.

Complaint. 44.

Defendants owed a duty of reasonable and ordinarycare to plaintiffs, which required

them to operatethe ship in a safe mannerso as to avoid the injuriesalleged herein. 45.

Defendants breached their dutyofcare to plaintiffs in numerousrespects. Examples

of their breach include, but are not limited to, the following acts or omissionsofdefendantCota: a. Attempting to sail the ship in the Bay in foggyconditions that limited visibilityto no

11

greaterthan 1/10ofa mile;

12

b. Proceeding on a course in the Bay with insufficient information about the level of

13

visibility;

14

15

e. Proceeding at a speed that was excessivefor the circumstances;

16

d. Failingto use all available resources to maximize safetyand minimizethe risk ofan

17

incident, including a tugboat,the VesselTraffic Serviceofthe Coast Guard, and the

18

ship's lookout; e. Failingto be fuUy acquainted with and able to operatethe ship's navigation system;

19

20

and f. Failing, ul?on being informedby the Coast Guard that the vessel was on a course that

21

22

would resultin a collision with the bridge, to heed that warningand to stop or

23

reversecourseuntil the location and courseof the vesselcould be ascertained with

24

certainty.

25

46.

Becausedefendant John J. Cola was at an relevant times acting within the course and

26

scope of his employment or agency foreach of the other defendants, each such other defendant is

27

liable for the acts and omissions ofdefendant Cota on the basis of respondeat superior.

28

10 CO~fPLAJNT,

CASE NO.

(

( TIIIRD CAUSE OF ACTION

(Lt!m1'!~~~ Fnr N~~U~e!1ce Per Se)

2

(Against All Defendants)

4i. 4 5 6

Plaintiffs reallege and incorporate by reference paragraphs I through 46 of this

Complaint. Defendants violated severalstatutes, ordinances, or regulations, including, without

48.

limitation, the following statutes and implementing and related regulations and ordinances:

7

a. Government Code, § 8670.25

8

b. Government Code, § 86iO.2S.S

9

c. Government Code, § 8670.27

10

d. Government Code, § 867056.5;

11

e. Government Code, § 8670.57;

12

f. Government Code, § 8670.58;

13

g. Government Code, § 8670.62

14

h. Government Code, § 8670.64

15

i. Government Code, § 8670.66;

16

j. Government Code, § 8670.67.5;

17

k. Government Code, § 8670.69;

18

J. Fish & GameCode, § 5650;

19

m, Fish & GameCode, § 12015;

20

n. Harbors & Navigation Code, § 133;

21

o,

22

p. WaterCode, § 13271, subds, (a) & (c).

23 24

25 26

27 28

49.

WaterCode, § 13350, subd, (a)(3); and

Defendants' violation ofstatutes, ordinances, or regulations actually and legally

caused injuryand other harm to plaintiffs, as alleged herein. 50.

Plaintiffs' harm resulted from anoccurrence of the nature that thesestatutes,

ordinances, or regulations weredesigned to prevent. 51.

Plaintiffs are members of the class of persons for whose protection the statutes,

ordinances, or regulations were adopted. 11 COMPLAINT. CASE NO.

n:'sovcm\u200ro800219"OO4,4212.doc

(

( 1

FOURTJI CAUSE OF ACTION (D~nn~2es For AI'''"' Ah~ft'me!!t of Nuisance) (Against All Defendants)

2

52.

4

5

Plaintiffs reallege and incorporate by referenceparagraphs 1 through51 of this

Complaint. 53.

Defendants' conductas allegedherein constituteda use of the San Francisco Bay in

6

such a manner as to constitute a private and public nuisance. The particularconduct constitutinga

7

nuisance is the discharge ofapproximately 58,000 gallons ofbunker fuel into the Bay environment.

8 9 10

54.

Defendants' creationof the nuisance was the resultof unsafe,negligent,unnecessary,

unreasonable, and injurious methods ofoperation oftheir business. 55.

Defendants' conductconstitutesa private nuisancewithin the meaningofSection

11

3479 of the Civil Code,and a public nuisancewithin the meaning ofsection 3490 et seq. ofthe

12

Civil Code.

13

56.

The conductofwhich San Francisco complains is specialtyinjuriousto San

14

Franciscoas the party with complete authority to use, conduct,operate,maintain, manage, regulate,

15

improve, and controlpropertyat and about the San Francisco waterfront including, without

16

limitation, propertywithin thejurisdiction ofthe Port of San Francisco.

17

18 19

57.

Despiteabundant notice and demands, defendants have failed and refused,and

continue to fail and refuse,to completelyinvestigate, assess,monitor,and abate the nuisance. 58.

Defendants have threatened to and will, unless restrained by this Court, continueto

20

maintainthe nuisance and continuethe acts complained of, and each and every act has been, and

21

will bet without the consent,against the will, and in violation ofplaintiffs' rights.

22

59.

As an actual and proximateresult ofthe nuisancecreated by defendants, plaintiffs

23

have been, and will be, damaged in an amount to be determined, in excess of the jurisdictional limit

24

of this Court.

25

60.

Unless defendants are restrained by order ofthis Court, it will be necessaryfor

26

plaintiffs to commence manysuccessive actions against defendants to securecompensation for

27

damagessustained, thus requiringa multiplicity of suits, and the general public will be daily

28

threatened with harm to their health. safety, andrecreational interests. 12 COMPLAINT, CASENO. ,----------------------~'--_.'-

(

( 61.

Plaintiffshave no plain, speedy, or adequate remedy at law, and injunctiverelief

2

requiring immediate abatementofthe nuisanceis expresslyauthorized by Sections 526 and 731 of

3

the Code of Civil Procedure. Plaintiffs are entitled to an injunctionrequiring defendantsto devise

4

and implementa plan to investigate, assess.. contain.remediate, and monitor on an ongoingbasis, all

5

harm to San Franciscowaterfront property,marine life, and recreational interests at and about the

6

waterfrontabuttingthe Bay, and the beaches along the Bay and Pacifie Ocean.

7

62.

In maintainingthe nuisance,defendants are acting with full knowledgeofthe

8

consequences and damage being caused,and their conduct is willful, oppressive and malicious;

9

accordingly, the City is entitled to punitive damages againstdefendants.

10

FIITII CAUSE OF ACTION (Trespass) (Against All Defendants)

11 12

63.

13

Complaint.

14

64.

Plaintiffsreallege and incorporate by referenceparagraphs 1 through62 ofthis

PlaintiffSan Franciscohas complete authority to use, conduct, operate, maintain,

15

manage,regulate,improve and control the San FranciscoPort, includingwithout limitation property

16

conveyedto San Franciscoin trust pursuant to the Burton Act and other property held in fee by the

17

City, and its facilities harmed or threatened by defendants'conduct, includingpiers, wharves,

18

pedestrian paths, seawalls, riprap, and marinasand harbors and their associated landside facilities

19

("the property").

20

65.

Beginning on November7,2007, and continuingto the present time, defendants,

21

without San Francisco's consent, trespassed on the property by causing the bunker fuel spill to

22

occur, failing to prevent the migrationof the spined fuel, and failingto removethe spilled product

23

from the marineenvironment,despite abundant notification of its obligation and opportunityto

24

perform.

25

66.

As an actual and legal result of the trespass, San Francisco has been and continuesto

26

be damaged in an amount to be determined, in excess of the jurisdictional limit of this Court.

27

III

28 13 COMPLAINT, CASENO.

n:'govcm\as2007\08002'9'OO4S~212.doc

c

( 1

SIXTII CAUSE OF ACTION {Unju!t Enrichment} (Against All Defendants)

2 67.

4

Plaintiffsreallege and incorporate by reference paragraphs 1 through 66 of this

Complaint.

5

68.

The volunteers whom San Francisco recruited, trained and supervised perfonned

6

hundreds or thousands of hours ofservice, including, without limitation, retrieving, treatingand

7

saving oiled birds and other marine life, cleaningup fouled beaches and other coastal property.

8

9

69.

to perfonn the work that the volunteers performed,

10 11

The volunteerservice constituted a benefit to defendants, who were obligated by law

70.

Defendants have unjustlyretained and been enrichedby the benefitof the volunteers'

service, at the expenseof San Francisco. 71.

12

Defendants must disgorge to plaintiffs their unjustly retained benefit.

13

SEVENTJI CAUSE OF ACTION (Unfair Business Praetlees Act, Bus. & Profs. Code, § 17200) (Against All Defendants)

14

15

72.

16

Complaint.

17

73.

The People reallegeand incorporate by referenceparagraphs 1 through71 ofthis

Section 17200 of the Business and Professions Code providesthat unfair competition

18

shall mean and include any "unlawful, unfair, or fraudulent business act or practicesand unfair,

19

deceptive, untrueor misleading advertising."

20 21

74.

Eachof the defendants' acts al1eged herein was unlawful, unfair, and fraudulent,

within the meaning, and in violation, ofsection 17200.

22

75.

Violations ofstatutes,ordinances, or regulations constituteunlawful acts within the

23

meaningofsection 17200. Such provisions thatdefendants violatedinclude, without limitation, the

24

statutes, ordinances and regulations alleged in paragraph 48, above.

25

III

26

III

27

III

28 14 CO~PLAINT,

CASE NO.

.,---.-..

_~-_._

_ _-_._-- ..._- -- -_._-------

.. ..

---_ ..- ------

...

. ..

(

(

1

PRAYER FOR RELIEF

2

Wherefore, plaintiffspray forjudgment againstdefendantsas follows:

1.

For damagesin excess of the jurisdictional limit of this Court, in an amount to be

4

determined at trial, including, without limitation, all damages necessary to compensate for the

5

economic,real property, Joss of use and enjoyment and natural resource damage alleged herein;

6

2.

For an injunction requiringdefendants to abate the nuisance and devise and

7

implementa plan to investigate, assess, monitor, containand remediate, on an ongoingbasis, all

8

llano

9

waterfrontabuttingthe Bay, and the beaches alongthe Bay and Pacific Ocean.

10

(0

San Francisco waterfront property, marine life, and recreational interests at and about the

3.

For an order requiringdefendants to disgorgeto plaintiffs the value of all unjustly

11

retainedbenefits flowing from the commitment ofvolunteers' remediation activities in response to

12

the spill;

13

4.

14 15 16

Forcivil penalties under Government Codesection 8670.66, Businessand

Professions Code section 17206, and any otherapplicable law;

5.

For an awardofreasonable costsand attorney's fees under Government Code section

8670.56.5, subdivision (0; Code ofCivil Procedure section 1033.5; and any other applicable law;

17

5.

For punitivedamages; and

18

6.

For trial by jury of all issues sotriable.

19

Dated: December 10, 2007

20

21 22

DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief DeputyCity Attorney DONALD P. ivlARGOLIS THOMAS S. LAKRITZ Deputy City Atto eys

23

24

25

26

Attorneys for Plaintiffs CITY ANDCOUNTY OF SAN FRANCISCO; and the PEOPLE OF THE STATE OF CALIFORNIA

27 28

15 CO~fPLAINT.

CASE NO.

n:\govem\as2001\0800219\004~212.doc