Melissa Dalton v. Pepsi Americas , 440 F. App'x 594 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MELISSA ANASTASIOU DALTON, No. 10-16074
individually and as guardian ad litem for
Kala Smith, Rebekah Mabery Anastasiou
and Michael Mabery; RALPH WEBER, D.C. No. 3:08-cv-02742-SI
Plaintiffs - Appellants,
MEMORANDUM *
and
HARRY WHITLOCK; FERN BROYLES;
SHEBIA CORNETT; ANGELA
HARRINGTON; WANDA FARMER;
LINDA GAYLE FORD; ALVIN E.
FORD; TIMOTHY E. FORD; DANIEL
W. FORD; TRACY L. FORD; MELINDA
J. FORD; JUANITA SHUMAKER;
DANIELLE SMITH; MARY SWEET;
LORETTA THOMSEN; JACK TUTTLE;
JO ANN WAKELAND; RUTH WEBER;
KEVIN TODD; REBECCA LYNNE,
Plaintiffs,
v.
PEPSI AMERICAS; PNEUMO ABEX
CORPORATION; PNEUMO ABEX,
LLC,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted June 15, 2011
San Francisco, California
Before: SCHROEDER, RIPPLE,** and BEA, Circuit Judges.
Melissa Anastasiou Dalton (“Dalton”), individually and as guardian ad litem
for Kal Smith and others, and Ralph Weber (“Weber”), appeal the district court’s
summary judgment in favor of Pepsi Americas, Pneumo Abex Corporation, and
Pneumo Abex, LLC in their diversity action alleging injuries sustained as a result
of improper disposal of hazardous waste at the Remco facility located in Willits,
California.
The district court properly granted summary judgment for defendants in
Dalton’s case. Dalton’s claims were time-barred since she “knew, or should have
known,” the cause of her injuries years earlier. See 42 U.S.C. §§ 9658(b)(4),
9658(a)(1). The defendants presented evidence to the district court that Dalton
**
The Honorable Kenneth F. Ripple, Senior Circuit Judge for the United
States Court of Appeals for the Seventh Circuit, sitting by designation.
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knew, or should have known, of her claims by at least 2000 because she met with
an attorney and investigator who were looking for claimants at that time.
On appeal, Dalton suggests it is possible that the investigator and attorney
led her to believe, however incorrectly, that she did not have a claim. This is
speculative and insufficient to raise a genuine issue of fact defeating summary
judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th
Cir. 1979).
The district court also properly granted summary judgment for defendants
with respect to Weber’s preconception claim because California state law does not
recognize such a claim. In defining the contours of a preconception negligence
claim, California courts have held that California “law imposes liability only when
there is a ‘special relationship’ between the defendant and the mother giving rise to
a duty to the minor plaintiff.” Hegyes v. Unjian Enters., Inc., 234 Cal. App. 3d
1103, 1114 (1991). In this case, Weber seeks compensation for personal injuries
allegedly caused by preconception exposure of his parents and grandparents when
they lived in Willits, but he does not allege they had any special relationship to the
defendants. Thus, the district court properly concluded that because there was no
special relationship between the defendants and Weber’s mother, the defendants
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did not owe him a duty of care. See Avila v. Willits Envtl. Remediation Trust, 633
F.3d 828, 844 (9th Cir. 2011).
AFFIRMED.
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