in the morning i'm joined counsel for the court of redwood city and i would like to address three issues today whether the court the court can review the district court's order to nine the ports motion for summ adjudication whether the district court of use is discretion by allowing the jury to be instructed on excuse and finally whether there were issues of material fact that should have gone to a jury and mourn did not that while there may have been discovery of damage there was there was not a discovery of liability or potential liability until after the three years until after and until such a point in time as we were timely now how did that come about one reason was that as you know from the record the d t s went into gibson with a search warrant and they removed a bunch of documents and among the documents they removed was the gibson hazardous waste profile that showed that the june nineteen godi the d t s team's investigators report determining that this was a violation of the permeating and all that had been removed from gibson's facility and so the evidence at trial was undisputed that the port didn't find out that they had in fact i negligence specific cause of action against shell until that lot well i believe that again we go back to the facts here and what we had was a situation where the trial attorney was calling the district attorney on a regular basis but wasn't getting any information and so without that information they didn't have the factual basis on which to file the complaint in that manner so that as your question have one procedural question along the lines of the statue of limitations act i think just before the case went to the jury room fifty a motion was made with respect to the staff limitations the issue of the federal causes of action the court found that there were no material disputed issues of fact and the fort of course a sort of thirds but there were a number of them and important one and the immediacy of the threat as for the complexity the district court found that the removal of the liquid material was complex the port asserts it was was not it's skim the million gallons treated on site treated the oily water and discarded it and trucked everything off site not very complex she also argued that the plan back in one thousand nine hundred five what they were doing was determining what they had out here there are nine tanks filled with ten million gallons of material and since we know that gives and was not always forthright in what it had the first thing the port had to do was determine what was out there they hired in the analytical associates to come in and to determine that and  general planning took place to see what was going on but it wasn't until the consent order was signed and the d period of time really should have started as the signing of the consent order and not hate regulation or statutory thing that supports that this is a factual issue of a removal action that says it begins when the agency the lead agency which is a d d s indicates there's an eminent threat i believe that's the language and i don't we sponsible for the cleanup there was no notification of which i'm aware that there was an imminent threat in those words prior to the consent order and this was three years later now the court found that because of that passage of time there probably wasn't an imminent threat but the d t s c which of course is the agency charged by the legislature with enforcing california's hazardous waste who was on the port property and looking at it could well have found that now an imminent danger existed and indeed that's what they said in the court in the consent order and there's really no reason to go behind that to believe it very well could have been that at the end of the three years they now said yes indeed there's an eminent threat and that's what they put now the other reason the court rejected that argument was because the port suggested the language not very unusual courts have parties draft language all the time thing to be remembered here is that the deviancy is a three hundred pound gorilla the port doesn't have the leverage to force them to accept language of any port is required to do because of that imminent threat to release it and it certainly presents if nothing else and issue of fact as to whether that  still left to be done yes the material that had been removed had been removed but it was a removal action with then a remedial action it wasn't the totality of the cleanup it's more like you're picking up was a permanent solution or not and it wasn't a permanent solution well the fact the records show that they still had to deal with the ground of the ground water that's right there with the dispute over that whether in fact as a matter of the remove all of the material constituted a permanent solution or not and perhaps that is purely an issue of law your honor i i as we speak i agree all right let me go then shell was able to determine whether gibson was permit after reasonable diligence and also found diligence the jury could have found because we start with the assumption that is the finding of negligence in order for this jury instruction to come into play this year you could have found that shell had delivered for recycling when the when neither gets in or redwood city services had a permit to receive any house that is way or the june one thousand nine hundred two shipment which was manifested be until december six months later and yet the stock human had to be a public record there's no indication that anyone from shell every went to the d t s sea and said let me see the permit if they had they would questions on that i think i want to reserve some time so i will not i'll forgo my other argument very well good morning michael lesley for shell oil company the ports briefs and their argument here to some extent centrally really argue evidence that was the subject of significant fashionable disputes throughout four weeks of trial before judge henderson and there were also the subject of the ports motion for partial new trial in both cases the jury after listening to all the witnesses including mr go my heart crewe it and everybody else from the court rejected the court's claims for negligence percentage and also for waste which the port does not now appeal and evaluating the courts motion for new trial judge henderson also engaged in the limited weighing of the evidence that's appropriate on a new trial motion and held that not only was there evidence in support of the verdict on the negligence for say the legality or illegality of the shipments at issue but he characterized the court's evidence on causation as being insubstantial and really this case boils down to a fairly simple inquiry that you don't even really need to get into the evidence back and forth on what statute was a political when and how did the regulations change how did the courts permit change in one nine hundred ninety when they had their part application all that it doesn't really matter because the entire thrust of that type of argument only goes to one element of a negligence pursue a claim namely is the duty of care element violated as the port concedes is the judge recognized and as evidence code section sixty nine itself states a separate independent element of negligence or say is that the violations proximately cause the injury at issue shipment and i'd be happy to go over some of that if the court is concerned but it but on a fundamental level because the port failed to prove that any of shell shipments regardless of whether they fell within the permit or not because conceded below that if gibson had stayed in business i think end of their lease they had to remove all of the materials from the tanks and deliver clean tanks the court and even mr g ari the court executive director in his testimony testified that he had no reason to believe that if gibson had stayed in business that it would not remove everything out of the tank so the first prong that the court had to show on the causation was that the shell shipments issue  cause of gibson going out of business and the court then being stuck with having to clean up the waste and as we indicated in our briefs and as the court found below the evidence from the people that knew mainly mr graham logan sells and and everybody else that was involved indicated that the reason why gibson went out of business was because it had significant regulatory issues not just with its redwood city site but with its wilmington site and with its bakersfield site that led to the d t s see hundred  forty four counts civil suit and that were the subject of some of the criminal charges against them so that the there was indeed substantial evidence in the record to support that shell's shipments regardless of how characterize did not cause gibson to go out of business and the second prong is the port had to show under the negligence for say theory that some of shell's materials remained in the tanks at the end of the day and the evidence there was substantial that shell last shipment was three and a half years before the court went out of business it was only according to the manifest one percent gasoline or something truly product and and ninety nine ninety eight percent water and on the pre nine hundred ninety shipment within thirty days a receipt so now the court contests and they talk about sludge and they try to parse things out but the point here is not to reweigh the evidence the jury heard all that the poor got to cross examine all the witnesses and i think their record is fairly clear that there is substantial evidence supporting the jury's verdict that shell shipments regardless of how characterized did not cause the court's damages and if you if you find substantial evidence on that prong then the port fails on percentage the gardens of how the shipments are characterized the other point i wanted to raise on the national contingency plan issue because that is a de novo review is that all of the fact et cetera all of these facts are borne out not only by shells showing in exhibits below but also by the ports opposition so in fact it's not correct to say that there were any meaningful factional disputes on the time line and who did what when and when it comes to the actual actions at the site itself and really the only thing that the port tries to point to to try to create a factual dispute is the what they claim to be a finding by the d t s sea in the consent worker that there was an imminent and substantial threat and in fact if you look at that consent order that's not what it says it does not say that the t n c finds after investigation that there's a threat  see alleges that there is an imminent and substantial threat due to the lack of destruction records on the and a lack of secondary containment and then it goes on and i think there are final five and nine to say that the port disputes all of those allegations and so that was merely a an allegation in a recycle in the consent order it certainly can't be elevated as the port seeks to do here to the be all and end all of this issue and even if it was a finding by the d t s say that's was somehow entitled to some way it would only be one factor in a very long chain of events and what the church henderson found below and rejecting the ports circle a claim on the n c p compliance issue was that the port couldn't parse out in a self serving way just certain sections of its activities in order to try to squeeze into one of the exceptions the port in the face of shell showing below on that had the burden under andersen versus liberty lobby and all of its progeny to come forward with admissible evidence to establish  genuine issues of triable fact on not just how was the action to be characterized but also as to what did it do to comply with the national contingency plan and as the judge henderson found something that has to take place within six months and clearly if you look at the judge's timeline the port hired its consultant mclaren hart on in february one thousand nine hundred six and submitted its first ongoing as of the two thousand and one motion for summary judgment frankly they were ongoing as of the trial in this case so the overall activities engaged by the poor which i think you do have to look at them were clearly consistent with a permanent remedial action now the port said in its argument this morning that the port didn't know there was an imminent threat until the consent order came out well that's because we submit that the evidence shows that there was never in imminent threat the tanks never ruptured nothing was ever released from the tanks there was no explosion and the port understood this because they had been leasing two petroleum businesses or different that was going on a site that had gone on for many many years also the d t c itself had been investigating fifteen's operation at the site for years at least going back to one thousand nine hundred two when the search warrant was implemented at the site and even before that they were always out there going through give since records and the court knew that support was fully in the loop on all of that so when you look at the n c p weigh those and balance those using the legal factors that are set out in the case law and in the regulations and he did so and so the court has not demonstrated error in terms of the compliance prong the port below made no showing in opposition to shells motion that they had complied with the national contingency plan for anything other than a time critical removal since the burden shifted to them in the face of shell shelling to come forward with the tribal issue of fact if there was one if they had complied with the n c p requirements for remedial action it was their burden to prove that to show tribal issue on that and they failed to do so and that's what judge henderson held below he didn't duck the issue he just said that he didn't need to reach it because it was clear that the court had made that showing and so therefore there was sensually concession by the port that they could not me and in fact the record shows that they could not meet that in any event because they didn't do a remedial investigation of the civility study if they didn't get public comments on the various plans they didn't respond to those public comments they didn't go through the record of decision process in all the other detailed requirements that are set forth in the national contingency plan for both remedial actions and also for non time critical removal actions so the port failed to sustain this burden below and it's failed on appeal to demonstrate why the court was wrong and what it did now the one issue that was raised by judge graber on the statute of limitations our position is that because there's clearly substantial evidence in support of the verdict you don't need to reach that point but even if the court were to have some question in that brilliant you're right it would be an alternative basis to affirm or at least to remain on to the trial court to to rule on that motion because it became moot of course when the jury rejected the court's claims but we felt that the below that that chain of events in which the port admitted knowing about the problems with gibson and ultimately the ports own attorney the port attorney admitted that he knew that they would be responsible for cleaning it up any the tension claims against the generators the only real response to that is that the port claims that it didn't discover the manifest regarding the june ninety two shipment until two thousand and one and that somehow that's a significant fact but the reality is the port did sue shell suit shell on december eighteenth one thousand nine hundred eight i believe it was and they sued on circle and they sued on negligence they sued on a whole variety of different causes of action so  it's not as though they didn't know that shell was wasn't involved the only thing that the port did when it discovered that invoice was it amended to to add in a claim for punitive damages which was also rejected  the jury so i don't want to make too much of that because i don't think the court really even needs to get to that in terms of the jury instruction issue again it really boils down once again to harmless error and causation because even if the court were incorrect in providing that jury instruction the fact of the matter is that there is substantial evidence that the court did not prove causation either on the factor of gibson going out of business or on any of shell's material still being in the tanks when it gets into go out of business and so any back and forth on the jury instruction only goes to the element of w the duty of care violated doesn't even address the causational element more fundamentally though the pork doesn't say that that's an incorrect statement of the law in the end they're just arguing the other as they didn't believe mr combine hearts steps were reasonably diligent enough they didn't believe some of his testimony but of course they had a full chance to cross examine him at trial and and that came in to the jury jury evaluated and more importantly  evaluate it on the motion for partial new trial and rejected it he said there was enough evidence given the legal standards to to provide that instruction to the jury and that it was not misleading and one point that he made that is also substantial  that is that in fact shell would have been a title to a more lenient instruction under evidence code section six sixty nine b which is the negligence percent a theory it specifically says that the presumption that is created by the negligence for say can be rebutted by proof that and i'm reading from six sixty nine v one the person violating the statute ordinance or regulation did what might reasonably be expected of a person an ordinary prudence acting under similar circumstances who desired to comply with a law that's a much more lenient standards and judge henderson said struction and we believe we complied with that standard as well but the point is it's harmless dinner anyway because it only goes to that single prong on the negligence per se not to the causational issue and of course the fact that the jury also rejected the ports claim for waste which didn't even have the statutory violation issues i think it's something that the court can consider in determining whether that was harmless error with respect to that instruction i want to dress in  detail because i think it's fairly clear that the ports the appeal of the denial of this motion to for summary judgment is simply not appealable under the look riccio case and the law and general signal corporation cases they simply can't feel only if the record contains no evidence in support of the verdict and clearly it does on both the nature of the shipments and also of the causation so really the fundamental point boils down to the is there substantial evidence to show  let me quickly respond to the cause ation and the statutory violations i think in our reply brief we set out rather clearly the causation issue we pointed in our to the amount of material that was sent by shell to the port it was the largest single contributor of material to the port and given the amount of sludge that was carried out and the amount of sludge that remained on the port at the time that gibson left almost any calculation you go through indicates that part of the material part was going to have to remove  begins investigating and puts more pressure on a facility that shell that's a factor going into a negative recommendation because there's always a chance that the facility will go under and the on the face of that document it demonstrates that shell contrary to law did not certify that the contents of that manifest are correct and that is material that it is shipping the hazardous waste that it's machete it's the only way the d t i see in the federal government can track the material it's the only way the facility where it's going to end up can determine what it needs to do to treat it and in this case what you had was a hazardous waste manifest in which the generator doesn't certify that its description of the material as a deal one eight is that accurate that was compounded of course when it became obvious that on the gibbs and liquid profile sheet shell certified that the contents of the same cards were dio or one wa that they ever tested it again before they submitted it for shipping or for delivery and that is their legal obligation so as to whether or not show violated the law you see it right on the hazardous satisfied the first prong of negligence per se and should have granted our request that not only should the the court find that but that it should instruct the jury that shall have violated that law was a showing of causation damages never went to the jury because they they determined that there was no negligence and that the cause nation that we showed was adequate  to have gotten us past negligence per se absent absent the erroneous jury instruction thank you counsel thank you both for your arguments your presentations have been very helpful to