Stanford University can proceed with its lawsuit against HP Inc. and Agilent Technologies, Inc., the U.S. District Court for the Northern District of California ruled on September 19, 2022, holding that because certain soil contamination was a “continuous” or abatable nuisance or trespass, Stanford’s nuisance and trespass claims were not time barred and could continue. Accordingly, the court denied HP and Agilent’s motion for summary judgment on Stanford’s nuisance and trespass claims. Bd. of Trs. of the Leland Stanford Junior Univ. v. Agilent Techs., Inc., No. 18-cv-01199 (N.D. Ca. Sept. 19, 2022).

Stanford’s dispute with HP and Agilent involved the discovery of PCB and TCE soil contamination on property owned by Stanford during a housing construction project as we previously reported on here. On February 23, 2018, Stanford filed a complaint for cost recovery and damages, alleging that the soil contamination originated from the activities of HP and Agilent and their corporate predecessors who previously occupied the property. Stanford’s claims for relief were made under Section 107 of CERCLA, 42 U.S.C. Section 9607, and under theories of nuisance and trespass. HP and Agilent moved for summary judgment against Stanford’s nuisance and trespass claims on February 9, 2022, arguing that the claims were barred by the three-year statute of limitations. In particular, HP and Agilent argued that the nuisance and trespass were “permanent” (as opposed to continuous) because the impacted soil remained on the property, the extent of contamination was uncertain, and the contamination could not reasonably be abated.

The statute of limitations for a permanent nuisance and trespass is triggered on the date of entry or the date such nuisance or trespass is first discovered, which HP and Agilent argued was in 2004. Therefore, the statute of limitations would bar Stanford’s nuisance and trespass claims. Unlike a permanent nuisance or trespass, the injury from a continuous or, as referred to by the court, “abatable” nuisance is successive and continues anew each day, and a plaintiff can sue for any damages that occurred within the three years prior to that lawsuit.

The court rejected HP and Agilent’s arguments that the nuisance and trespass were permanent. Citing California state case law, the court held that the contamination need not be wholly abatable for it to be considered a continuous nuisance. Even if it is infeasible to remove or remediate all of the contamination, such contamination could still be abatable through minimizing the effects of such contamination. Stanford had already incurred costs to minimize the effects of the nuisance, such as building around the nuisance and installing vapor barriers, costs which Stanford could seek to recover. Further, the court disagreed that Stanford did not know the extent of the contamination, finding that Stanford presented sufficient evidence of the extent of the contamination for the issue to go to the jury. Accordingly, the court denied HP and Agilent’s motion for summary judgment.