By Gina Kim
(Daily Journal)
Attorneys representing a small group of plaintiffs suing the Boeing Co. over the Woolsey fire are advising future claimants not to tie any claims to contamination and radioactive material at the Santa Susana Field Laboratory near Simi Valley, where the blaze ignited Nov. 8, 2018.
Boeing was able to use those claims to retain federal jurisdiction over wildfire litigation against it as there are special federal statutes that govern radiation contamination cases.
On Thursday, the 9th U.S. Circuit Court of Appeals dismissed Boeing's appeal of a district court's order remanding the lawsuit filed by plaintiff Andrew Von Oeyen to state court to join coordinated proceedings. Woolsey Fire cases, JCCP 5000.
The 9th Circuit also denied Boeing's motion to stay the state court proceedings pending before Los Angeles County Superior Court Judge William F. Highberger. Don Howarth and Suzelle M. Smith of Howarth & Smith on behalf of Van Oeyen and other plaintiffs sued Boeing in Los Angeles County Superior Court in February along with defendant Southern California Edison Co., whose equipment has been blamed for starting the Woolsey fire. The blaze chewed through more than 96,000 acres in Ventura and Los Angeles counties. Other plaintiffs in the litigation dropped Boeing as a defendant after the company threatened to remove cases to federal court.
Howarth and Smith kept Boeing as a defendant; Boeing followed through with its threat. Howarth and Smith filed an amended complaint April 30, which clarified their pleadings and cleared out the contamination allegations. Van Oeyen et al. v. The Boeing Company, et al. 19-CV-3955 (C.D. Cal., filed April 30, 2019). Boeing, however, removed the original complaint to federal court before the amended complaint was served.
In August, U.S. District Judge Michael Fitzgerald remanded the case to state court, finding Boeing's removal based on an inoperative and superseded complaint constituted a technical defect, thus making the remand non-appealable.
The 9th Circuit's affirmation of Fitzgerald's remand order keeps the case in state court, unless Boeing petitions to the U.S. Supreme Court, which is unlikely.
"Our cases are now free to proceed in state court full steam ahead," Smith said Friday, noting their amended lawsuit made it clear plaintiffs are only seeking damages for Boeing's conduct related to starting the fire and failing to contain it.
Fitzgerald's remand order in August paved the way for other individual plaintiffs to pursue Boeing again, but it remains to be seen if Boeing will start the same jurisdiction fights with new plaintiffs.
Plaintiff lawyer Gerald B. Singleton of Singleton Law Firm who represents several hundred Woolsey fire victims and plans to pursue Boeing, said the company still has legal rights to remove future cases to federal court.
Both Singleton and Smith said they believed if the toxic tort contamination allegations are removed from future lawsuits, then there'd be no basis for Boeing to assert federal jurisdiction.