Case 5:08-cv JLQ -OP Document 61 Filed 05/16/11 Page 1 of 19 Page ID #:1205

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1 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #:0 0 0 W. Lee Smith, S.B.N. lsmith@michellawyers.com Scott M. Franklin, S.B.N. 0 sfranklin@michellawyers.com MICHEL & ASSOCIATES, P.C. 0 E. Ocean Blvd., Suite 00 Long Beach, CA 00 Telephone: ( - Facsimile: ( - Attorneys for Defendant San Gabriel Valley Gun Club UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CALMAT CO. dba VULCAN MATERIALS COMPANY, WESTERN DIVISION, a Delaware corporation, v. Plaintiff, SAN GABRIEL VALLEY GUN CLUB, a non-profit California corporation, and DOES through 0, inclusive, Defendants. SAN GABRIEL VALLEY GUN CLUB, a non-profit California corporation, v. Counter-Claimant, CALMAT CO. dba VULCAN MATERIALS COMPANY, WESTERN DIVISION, a Delaware corporation, Counter-Defendant. EASTERN DIVISION CASE NO: EDCV0- JLQ(OPx STATEMENT OF S AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY JUDGMENT AS TO PORTIONS OF PLAINTIFF'S COMPLAINT Hon. Justin L. Quackenbush Date: June, 0 Time: 0:00 AM Courtroom:

2 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #:0 I. INTRODUCTION Pursuant to Rule of the Federal Rules of Civil Procedure and Local Rule -, Defendant San Gabriel Valley Gun Club ( the Club hereby submits its Separate Statement of Uncontroverted Facts and Conclusions of Law in support of its Motion for Summary Judgment on the claims of Calmat Co. dba Vulcan Materials Co., Western Division ( Vulcan against the Club. II. STATEMENT OF UNCONTROVERTED S 0 0. There were some periods of time between January and November 00 where there was no lease in place for the property at issue, including // to 0/0/.. Prior to December 0, the Leased Property was larger than it was when the final lease ended; the reduction was the result condemnations for flood control purposes.. From approximately January to November 00, pursuant to series of written leases, the Club leased property (the Leased Property from Vulcan for the purpose of operating a gun club.. The condition of the Leased Property prior to// is unknown.. There is evidence that the Leased Property was used as a shooting range prior to a lease being in place.. Spent Ammunition is defined as any constituent of a firearm cartridge Compl. Exs. G, at ; H, at -. Compl. at :-. Compl. at :-. Vulcan s Response to the First Set of Requests for Production of Documents ( Plf s. Resp. to POD at 0:- to :-. (Declaration of Scott M. Franklin [ SMF Dec. ] Ex. A. Letter of // (VUL0; Vulcan s Response to the Third Set of Requests for Admission propounded by the Club ( Plf s. Resp. to RFA at 0:-. (SMF Dec. Ex. C. First Set of Requests for Admission propounded by the Club on Vulcan

3 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #:0 0 0 expelled from a firearm during the normal operation of a firearm, including... shot, bullets... particulate matter, empty bullet cases..... Vulcan was contemporaneously aware Spent Ammunition was being used at the Leased Property from to 00.. Between and November 00, Vulcan was under the impression that the Club made no attempt to clean up the effects of lead ammunition use.. Vulcan did not contact the Club: prior to 00 regarding a contention that the presence of Spent Ammunition at the Leased Property was causing or could cause damage, to specifically request or tell the Club to remove any Spent Ammunition from the Leased Property, or during lease negotiation indicating a desire to include a lease provision specifically regarding Spent Ammunition. 0. At some point in time between // and //, a large amount of material was placed on the Leased Property.. Vulcan s management determined it would place mined material [(] i.e., base, overburden, mining tailings, rock dust, or sand, or any combination thereof on the Leased Property at some time between January and //. ( RFA to Vulcan, at :-. (SMF Dec. Ex. D. Vulcan s Supplemental Response to the First Set of Requests for Admission propounded by the Club ( Plf s. Supp. Resp. to RFA at :- to :-. (SMF Dec. Ex. E. Vulcan s Response to the First Set of Requests for Admission propounded by the Club ( Plf s. Resp. to RFA at :-. (SMF Dec. Ex. D. Vulcan s Response to the Second Set of Interrogatories propounded by the Club ( Plf s. Resp. to ROGS at :- to :-, :- to :-, and documents cited therein (none of which support the denials at issue. (SMF Dec. Ex. H. Photograph of June, ; Plf s. Resp. to RFA at :0- (admitting the photograph of June,, accurately depicts the Leased Property as of June, ; Photograph of January,. (SMF Dec. Exs. I, B, J. Vulcan s Response to the Fourth Set of Requests for Admissions propounded by the Club ( Plf s. Resp. to RFA at :-. (SMF Dec. Ex. K.. Vulcan had no contractual right to Compl. at Exs. G, H. (The document

4 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #:0 0 0 enter the Leased Property to dump material thereon between // and //.. The Azusa Rock Quarry abuts the Leased Property and is owned by Vulcan.. Approximately 00,000 tons of waste material had been placed on the Leased Property as of //, when waste was being generated at a rate of about 0,000 tons a month.. The material placed at the Leased Property by Vulcan was placed at the base of the mountain that runs along the northeastern edge of the leased property.. Target shooters at the Leased Property would shoot in the base of the mountain that runs along the northwestern edge the Leased Property when using the 00-yard rifle range at the Leased Property.. The placement of the Waste Pile did not stop the use of the range it was located on.. Tom Sheedy was the general manager of the Azusa Rock Quarry, also referred to as the Fish Canyon Quarry, from to Preston Cowan was a heavy equipment operator at the Azusa Rock Quarry and he was in charge of the employees that hauled tailing (i.e., waste from the Fish Canyon (i.e., Azusa Rock Quarry. the Compl. refers to as Ex. G itself includes an exhibit, i.e., Exhibit B, which was mistakenly attached to Ex. G; the text of Ex. G refers never refers to an Exhibit B. ENV America Site Plan (VMC 0. (SMF Dec. Ex. L. Minutes of the Regular Meeting of the Executive Committee of Crystal a California General Partnership, dated //, at (VU0. (SMF Dec. Ex. M. Photograph of June, ; Plf s. Resp. to RFA at :0- (admitting the photograph of June,, accurately depicts the Leased Property as of June, ; Photograph of January, ; ENV America Workplan (VMC 0. (SMF Dec. Exs. I, B, J, M. Transcript of Deposition of Herb Bock ( Bock Depo. at :- to :-; Transcript of Deposition of Richard Phillips ( Phillips Depo. at :-. (SMF Dec. Exs. N, O. Phillips Depo. at 0:0-. (SMF Dec. Ex. O. Declaration of Thomas Sheedy II ( Sheedy Dec.. (SMF Dec. Ex. P. Declaration of Claude Preston Cowan ( Cowan Dec. ; Daily Extra Work Report dated March, (VUL00. (SMF Dec. Exs. Q, R.

5 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: In the late 0s Tom Sheedy and Preston Cowan walked the location where the Waste Pile would later be placed; lead bullets and fragments were plainly visble on the ground where the two men were walking.. After Vulcan had begun the Waste Pile, the manager of the Club (Rick Phillips made a comment to Mr. Cowan expressing the idea that placing tailing on the leased property could result in problems in the future regarding the lead bullets (or fragments being buried.. At around the same time Phillips made the comment discussed above, Cowan told Sheedy that placing tailing on the Leased Property was resulting in lead bullets or fragments being buried beneath tailings, but Cowan does not remember what, if any, response Mr. Sheedy gave.. At the time tailing were deposited at the Leased Property, Sheedy, and the management committee he reported to, were aware of the possibility that the tailing were being placed on top of a surface where bullets (partial or whole were present.. When it would rain at the Leased Property, loose material from the Waste Pile would flow down onto the range floor at the Leased Property; sometimes target holders (the holes in the ground where a target frames are placed on the range floor at the Leased Property would be so covered with material from the Waste Pile that a hole had to be dug with a shovel to make the target holders useable. Cowan Dec.. (SMF Dec. Ex. Q. Cowan Dec.. (SMF Dec. Ex. Q. Cowan Dec. 0. (SMF Dec. Ex. Q. Sheedy Dec.,. (SMF Dec. Ex. P. Phillips Depo. at :- to :-. (SMF Dec. Ex. O.. On several occasions between Forthcoming Supplemental Declaration

6 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #:0 0 0 and 000, Cowan oversaw or personally used heavy equipment to relocate material from the Waste Pile that had flowed onto the range floor at the Leased Property.. The material at issue was relocated from the range floor to the top of the Waste Pile.. The relocated material contained whatever was in the face of the Waste Pile that had slid to the range floor, i.e., bullets and Waste Pile material.. On October,, the Club sent a letter to Vulcan proposing that, pursuant to certain terms, Vulcan grant the Club a new ten year lease.. On 0//, there was about a year left of the term of the lease executed 0/0/. 0. Tom Jenkins was a Vulcan (i.e., Calmat project manager from until, and his supervisor was, at the time relevant hereto, Tom Davis.. Tom Jenkins provided at least three memos to Tom Davis that addressed the Club.. The three memos dated /0/ refer to either a lead problem or a bullet problem[;] one of the memos, titled Summary of Gun Club Decisions[,] refers to the Club s letter of 0// and states [d]ecide what to do with bullet problem in waste pile on rifle range and reservation clauses... reserve stockpile area in back of the pistol/rifle range[.] of Preston Cowan ( Forthcoming Cowan Supp. Dec. ; see Declaration of Scott M. Franklin ( SMF Dec. filed concurrently herewith at. Forthcoming Cowan Supp. Dec. Forthcoming Cowan Supp. Dec. Letter of 0// (VUL. (SMF Dec. Ex. S. Compl. Ex. G, at. Transcript of Deposition of Tom Jenkins ( Jenkins Depo. at :- to 0:-. (SMF Dec. Ex. T. Transcript of Deposition of Tom Davis ( Davis Depo. at :- to :-, :-, :-, :-, and Exhibits,, to the Davis Depo. (VUL-, VUL00-, VUL00-. (SMF Dec. Exs. U, V. Three memos dated /0/ (VUL-, VUL00-, VUL00-. (SMF Dec. Ex. V.

7 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. Tom Jenkins delivered to the Club a draft lease on 0/0/.. The 0/0/ Draft Lease contained the following provision (part of therein, titled Use of Premises, which was not in the lease of 0/0/: Landlord shall have the right to establish reasonable rules and regulations regarding the Tenant s permitted use of the Premises, including without limitation specifications regarding the type of shot used, and Tenant agrees to observe all such reasonable rules and regulations. Tenant shall not cause or permit any Hazardous Materials (as hereinafter defined to be brought upon, kept, or used in or about the Premises by Tenant, its agents, employees, contractors or invitees. As used herein, the term Hazardous Material means any hazardous or toxic substance, material or waste which is or becomes regulated by any local authority, the State of California, or the United States Government.. The 0/0/ Draft Lease does not mention Spent Ammunition at all.. Robert Carter s response regarding the 0/0/ Draft Lease sent on Letter of Transmittal of 0/0/ and Attachment ( Draft Lease (SGVGC (SMF Dec. Ex. W. Compl. Ex. G; 0/0/ Draft Lease (SGVGC.00-. (SMF Dec. Ex. W. Draft Lease (SGVGC (SMF Dec. Ex. W. Letter of 0// at. (SMF Dec. Ex. X.

8 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 0// to Brian Ferris of Vulcan requested the draft to be revised by deletion of the first sentence of the material quoted above, and further requesting the addition of this sentence after the quoted material: except ammunition, propellant powder, normal gun cleaning solvents, diesel fuel in safety cans, and fuel in vehicle fuel tanks.. Vulcan did not agree to Carter s proposed removal in the letter of 0//, as stated in Ferris 0/0/ letter written in response to Carter s comments of February : Landlord must have the right to establish reasonable rules and regulations regarding Tenant s permitted use of the premises..., [Vulcan] must have the ability to react to changing circumstances or condition which are unforeseeable at this time.. The letter of 0/0/ does not mention Spent Ammunition or the cleanup thereof.. The Lease of 0/0/ states (at : In the event of any new, changed, or unforeseen circumstances, Landlord shall have the right to establish reasonable rules and regulations regarding the Tenant s permitted use of th Premises, excluding rules and regulations regarding the type or size of ammunition or shot, and Tenant agrees to observe all such reasonable rules and regulations. Except for ammunition, propellant Letter of 0/0/ at (SGVGC00. (SMF Dec. Ex. Y. Letter of 0/0/ at (SGVGC00-. (SMF Dec. Ex. Y. Compl. Ex. H, at -.

9 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 powder, normal gun cleaning solvents, diesel fuel in safety cans, and fuel in vehicle fuel tanks, all of which shall at times be stored, handled, used and disposed of in strict accordance with all applicable laws and regulations, Tenant shall not cause or permit any Hazardous Materials (as hereinafter defined to be brought upon, kept, or used in or about the Premises by Tenant, its agents, employees, contractors or invitees. As used herein, the term Hazardous Material means any hazardous or toxic substance, material or waste which is or becomes regulated by any local authority, the State of California, or the United States Government. 0. The Club did not know why Vulcan sought to amend of the lease prior to the execution of the 0/0/ lease.. Vulcan never indicated to the Club that the revision of was intended to address Spent Ammunition in any way.. The following provisions are in the Lease of 0/0/: [ ]. Improvements to the Premises. Tenant leases the Premises in an as is condition..... [ ]. Use of Premises... Bock Depo. at :- to :-. (SMF Dec. Ex. N. Bock Depo. at :- to :-. (SMF Dec. Ex. N. Compl. Ex. H.

10 Case :0-cv-0-JLQ -OP Document Filed 0// Page 0 of Page ID #: 0 0 Tenant shall not commit, or suffer to be committed, any waste upon the Premises, or any public or private nuisance..... [ ] 0. Maintenance and Repair.... Upon the expiration of this Lease or any termination herein provided, Tenant Shall at its sole cost and expense remove from the Premises all Tenant s personal property, and clean up and remove from the premises all rubbish and debris and turn over the premises to Landlord in good order and in a safe, sanitary condition. Should Tenant fail to do so, Landlord may at its option make those removals required above or do such work as shall be required to return the Premises to an orderly and safe, sanitary condition and the cost thereof to landlord shall be immediately repaid to Landlord. [ ]. Entire Agreement. This Lease contains the entire agreement of the parties hereto with respect to the matters covered hereby and no other agreement, statement or promises made by any party hereto or any employee or agent of any 0

11 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 party hereto which is not contained herein shall be binding or valid.. The Lease of 0/0/, like all the leases in this matter, did not contain a bond requirement regarding any alleged damage to the Leased Property that might have resulted from the Club s use thereof.. On May, 00, Vulcan and the Club entered into an agreement that allowed Vulcan to lease the Leased Property to the Club on an eighteen ( month rolling term and included a rental rate adjustment, but otherwise incorporated the other terms of the Lease of 0/0/.. The final lease period ended //0, per Vulcan 0/0/00 termination letter.. In response to the following Requests for Production, Vulcan has not provided an occupational and safety program as mentioned in 0 C.F.R REQUEST NO. Any DOCUMENT related to any TESTING for any HAZARDOUS SUBSTANCE on the SUBJECT PROPERTY. REQUEST NO. discussing any RELEASE of a HAZARDOUS SUBSTANCE at the SUBJECT PROPERTY. REQUEST NO. Compl. Exs. A-I; Plf s. Resp. to RFA at 0:-. (SMF Dec. Ex. Z. Compl. Ex. I. Compl. Ex. J. Plf s. Resp. to POD and documents provided therewith.* [To avoid making the documents filed in support of the Club s Motion for Summary Judgment or in the Alternative Partial Summary Judgment unnecessarily voluminous, certain documents presumably in the possession of Vulcan, marked with an asterisk herein, are not being produced at this time. Such documents will be produced immediately upon request]

12 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 discussing any RELEASE of HAZARDOUS SUBSTANCE OFFSITE, as to land owned, possessed, or operated upon by YOU. REQUEST NO. Any DOCUMENT related to YOUR claim for damages in the COMPLAINT otherwise not produced in response ro request no.. REQUEST NO. discussing the use, handling, storage, or disposal of any HAZARDOUS SUBSTANCE on the SUBJECT PROPERTY.. In response to the following Requests for Production, Vulcan has not provided documents supporting actions taken under the NCP. REQUEST NO. Any DOCUMENT related to YOUR claim for damages in the COMPLAINT otherwise not produced in response ro request no... Vulcan has not identified applicable or relevant and appropriate requirements ( ARARs.. Vulcan has not performed a Reme.dial Investigation/Feasability Study 0. In response to the following Requests for Production, Vulcan has not provided evidence of any community relations regarding the alleged contamination at the Site. Plf s. Resp. to POD and documents provided therewith.* Vulcan s Expert Witness Disclosure* and Rebuttal Expert Witness Disclosure.* Vulcan s Expert Witness Disclosure* and Rebuttal Expert Witness Disclosure.* Plf s. Resp. to POD and documents provided therewith.*

13 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 REQUEST NO. discussing any RELEASE of a HAZARDOUS SUBSTANCE at the SUBJECT PROPERTY. REQUEST NO. discussing any RELEASE of HAZARDOUS SUBSTANCE OFFSITE, as to land owned, possessed, or operated upon by YOU. REQUEST NO. discussing the use, handling, storage, or disposal of any HAZARDOUS SUBSTANCE on the SUBJECT PROPERTY.. In response to the following Requests for Production, Vulcan has not provided a community-relations plan. REQUEST NO. discussing any RELEASE of a HAZARDOUS SUBSTANCE at the SUBJECT PROPERTY. REQUEST NO. discussing any RELEASE of HAZARDOUS SUBSTANCE OFFSITE, as to land owned, possessed, or operated upon by YOU. REQUEST NO. Plf s. Resp. to POD and documents provided therewith.*

14 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 discussing the use, handling, storage, or disposal of any HAZARDOUS SUBSTANCE on the SUBJECT PROPERTY.. Vulcan has provided no evidence of interviews being conducted with local officials, community residents, public interest groups, or other interested or affected parties, the preparation of a formal community relations plan, the establishment of a local information repository near the location of the response action in response to the following Requests for Production: REQUEST NO. discussing any RELEASE of a HAZARDOUS SUBSTANCE at the SUBJECT PROPERTY. REQUEST NO. discussing any RELEASE of HAZARDOUS SUBSTANCE OFFSITE, as to land owned, possessed, or operated upon by YOU. REQUEST NO. discussing the use, handling, storage, or disposal of any HAZARDOUS SUBSTANCE on the SUBJECT PROPERTY.. No regulator has been involved with testing on the Site, or has Plf s. Resp. to POD and documents provided therewith.* Vulcan s Response to the First Set of Interrogatories propounded by the Club

15 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 indicated it might require Vulcan to clean up the Site.. Vulcan oversaw the cleanup of former gun club site it owned (located in the County of Ventura, California without involving any regulatory agencies.. The value of the real property formerly leased by the Club from Vulcan, located in Azusa, California, a portion of Tax Parcel No , commonly known as 00 Fish Canyon Road (the Site is less than the cost of remediation alleged by Vulcan.. All of the leases executed between Vulcan and the Club with respect to the Site, from onward, contained provisions stating that the Site was to be used as a range for firearm use.. The pistol and rifle range firing lines and shooting directions at the Leased Property did not change from to 0/0/00. ( Plf s. Resp. to ROGS at :- to :-. (SMF Dec. Ex. G. Transcript of Deposition of Mike Linton at 0:- to :-. (SMF Dec. Ex. F. Vulcan s Expert Witness Disclosure (Liu Report, at -; Letter of November, 00. (SMF Dec. Exs. AA, BB. Compl. Exs. A-I.. This action was filed 0/0/0. Compl. at.. the Lease of 0/0/ was not contained in the Lease of 0/0/. 0. There are several provisions in the Leases Vulcan argues to be applicable as to liability for spent ammunition left on the Site. III. ENV America Workplan at (VMC0. (SMF Dec. Ex. L. Compl. Exs. G, H. Compl. at :- to :-. CONCLUSIONS OF LAW. The activities for which Vulcan seeks to recover costs under CERCLA, U.S.C. 0, did not comply with the requirements of the National Contingency Plan, 0 C.F.R. 00. et seq., and therefore the Club is not liable to Vulcan for cost recovery under U.S.C. 0.

16 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: The Site is not a CERCLA facility, as that term is defined in U.S.C. 0(, so the Club is not a covered person as defined in U.S.C. 0(a, and therefore the Club is not liable to Vulcan for cost recovery under U.S.C. 0.. Vulcan has no valid claim against the Club for contribution under U.S.C. because Vulcan has not been sued for cost recovery under 0.. Vulcan has no valid claim against the Club under the California Hazardous Substance Account Act, California Health and Safety Code 00-., because HSAA liability is based on CERCLA liability and the Club is not liable to Vulcan under CERCLA.. The Club is not liable to Vulcan for declaratory relief under CERCLA, U.S.C. (g( because CERCLA declaratory relief depends upon liability for cost recovery or contribution, and the Club is not liable to Vulcan for cost recovery or contribution under CERCLA.. The Court should decline to exercise supplemental jurisdiction under U.S.C. and therefore should dismiss Vulcan s claim three for contribution and indemnity under the HSAA, claim four for breach of contract, claim five for continuing nuisance, claim six for permanent nuisance, claim seven for continuing trespass, claim eight for permanent trespass, claim nine for negligence, claim ten for negligence per se, claim eleven for waste, claim twelve for contractual indemnity, claim thirteen for equitable contribution/indemnity, and claim fourteen for declaratory relief under state law.. The Club did not breach any of its lease contracts with Vulcan because the leases do not require the Club to remove Spent Ammunition from the Site at the termination of the lease. See, e.g. ASP Props. Group v. Fard, Inc., Cal. App. th, (00.. The four-year statute of limitations on written contracts in Cal. Civ. Proc.

17 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 Code bars claims accruing before September, 00, so claims based on leases prior to the lease dated May 0, are time-barred.. Claims for damages for Spent Ammunition deposited on the Site prior to the execution of the May 0, lease are barred because the May 0, lease, at most, requires the Club to restore the Site to the condition it was in at the start of that lease. See Haupt v. La Brea Heating & Air Conditioning Co., Cal. App. d Supp. (; ASP Props. Group v. Fard, Inc., Cal. App. th, ( Because the May 0, lease contains a provision requiring the Club to repay Vulcan s costs of returning the Premises to an orderly and safe, sanitary condition, any damages under the lease are limited to the amount of such costs incurred by Vulcan at the time the lawsuit was filed. Cal. Civil Code.. Vulcan consented to the deposit of Spent Ammunition on the Site, barring a continuing or permanent nuisance claim against the Club. Churchill v. Baumann, Cal., (.. The Club did not act tortiously in depositing Spent Ammunition on the Site, precluding a continuing or permanent trespass claim against the Club. Newhall Land & Farming Co. v. Superior Court, Cal. App. th (.. Because Vulcan consented to the deposit of Spent Ammunition on the Site, the Club did not breach its duty of care to Vulcan, precluding Vulcan s negligence and negligence per se claims. Ahern v. Dillenback, Cal. App. th, (; Millard v. Biosources, Inc., Cal. App. th, n. (00.. The Club s actions in depositing Spent Ammunition on the Site do not constitute waste because those actions were not excessive or unreasonable, and because the leases contain contract terms precluding liability for waste.

18 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 Krone v. Goff, Cal. App. d, (; Old Republic Ins. Co. v. Superior Court, Cal. App. th, (.. Vulcan is not entitled to indemnity or contribution from the Club either under the leases or based on equitable principles because Vulcan is not jointly liable with the Club to a third party, because Vulcan incurred Site cleanup costs voluntarily, and because a contract term providing for indemnity precludes equitable indemnity. Gem Developers v. Hallcraft Homes of San Diego, Inc., Cal. App. d, 0 (; Indust. Risk Insurers v. Creole Prod. Servs., Inc., F.d, (th Cir. ; Maryland Cas. Co. v. Bailey & Sons, Inc., Cal. App. th, (.. Vulcan is not entitled to declaratory relief against the Club under state law because the basis for such declaratory relief would be the same as for the other claims in this action. Because those claims fail there is no legal theory under which declaratory relief is available to Vulcan. Therefore declaratory relief is not necessary or proper under all the circumstances. Cal. Civ. Proc. Code 0. 0 Date: May, 0 MICHEL & ASSOCIATES, P.C. /s/scott M. Franklin Scott M. Franklin SFranklin@michelawyers.com Counsel for Defendant/Counter- Claimant San Gabriel Valley Gun Club

19 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 IT IS HEREBY CERTIFIED THAT: PROOF OF SERVICE I, Christina Sanchez, the undersigned, am a citizen of the United States and am at least eighteen years of age. My business address is 0 E. Ocean Blvd., Suite 00, Long Beach, California, 00. I am not a party to the above-entitled action. I have caused service of: STATEMENT OF S AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY JUDGMENT AS TO PORTIONS OF PLAINTIFF'S COMPLAINT on the following party by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. Kenneth A. Ehrlich kehrlich@jmbm.com Paul A. Kroeger pkroeger@jmbm.com JEFFER MANGELS BUTLER & MITCHELL LLP 00 Avenue of the Stars, th Floor Los Angeles, CA 00 I declare under penalty of perjury that the foregoing is true and correct. Executed on May, 0. /s/ Christina Sanchez 0