Refusing to require plaintiffs in a state-wide action to identify specific sites at issue, a California Superior Court judge denied summary judgment to certain paint manufacturers in a pending nuisance action for abatement of lead-based paint in homes and buildings throughout the State of California. California v. Atlantic Richfield Co., No. 1-00-CV-788657 (Cal. Sup. Ct., Santa Clara Co., May 31, 2013), available at www.bdlaw.com/assets/attachments/Atlantic%20Richfield.pdf. 

The court rejected the manufacturers’ argument that the State would have to identify specific locations contaminated with lead, reasoning that allegations that lead remains in buildings in specified cities, supported by government records, was sufficient to overcome summary judgment in light of allegations that the manufacturers promoted and sold lead-containing paints in the state with knowledge of the danger. Atlantic Richfield, slip op. at 1-2, 5-6. The court similarly rejected Defendants’ arguments that the State had not demonstrated a “pervasive, imminent health risk” given the significant harm of childhood exposure to lead and the risks involved with deterioration of lead-based paint. Id. at 6-7. The court found triable issues of fact as to the causation element based on the paint manufacturers’ alleged knowledge of the hazards. Id. at 8.

The court also denied summary judgment on constitutional grounds, finding no due process violation involving California’s public nuisance law. Defendant argued that at the time of its alleged actionable conduct, a nuisance theory would lie against one who controlled or maintained the nuisance, and therefore, the State’s theory expanded public nuisance theory beyond which the Defendant had fair notice. Id. at 9. The court rejected this assertion fully, noting that it has long been the law in California that the party who maintains, creates or assists in the creation of a nuisance is responsible for the ensuing damages. Id.