Neighbors of a Marin County rock quarry, which has been the source of complaints and government investigations for years, have failed in their bid to pursue a class action lawsuit against the quarry for allegedly illegal activities.

The First District Court of Appeal upheld a lower court decision denying a request for certification of a class action against San Rafael Rock Quarry, Inc. The court based part of its decision on the fact that no two residents were impacted in the same way by the quarry’s blasting, noise and truck traffic.

The quarry has been operating on the edge of San Pablo Bay, near San Rafael, for a century. In 1982, the then-owners submitted a new reclamation plan pursuant to the Surface Mining and Reclamation Act. Based on that plan, the county rezoned the land and the mine has been a legal, nonconforming use ever since. In 1986, Dutra Construction Company purchased the quarry and allegedly increased the scope of operations. In 1996, the Bay Area Air Quality Management District cited the quarry for expanding without permits.

In 2000, Marin County issued a notice of noncompliance with the 1982 reclamation plan. The county reported that Dutra Construction had increased the depth of the mining pit, ignored a date for terminating mining and increased truck traffic. Later investigations by the county and the City of San Rafael revealed buildings constructed without permits and violations of air quality standards. In June 2001, the Marin County grand jury issued a report critical of the county’s inaction regarding complaints about the quarry’s dust, noise, blasting and truck traffic. The grand jury urged the district attorney to take action against the quarry.

Jonathan Frieman and Jan Brice, who live near the quarry, filed a lawsuit in January 2002. They argued that the quarry’s expansion in violation of state and local laws was an unlawful business practice under the Unfair Practices Act (UCL) (Business and Professions Code § 17200 et seq.). Frieman and Brice — who initially were joined by another individual who has since died and a citizens group that later dropped out of the litigation — also argued that the quarry’s expansion was a public nuisance. In July 2002, the plaintiffs sought class certification for the lawsuit. They wanted to include in the class anyone who resided within a 5-square-mile area of the quarry or Point San Pedro Road for at least 30 days since September 25, 1998 — about 11,000 people. The plaintiffs sought the profits that the quarry realized because of its noncompliance with the amended plan, zoning and various health and safety codes.

Marin County Superior Court Judge Vernon Smith rejected the request for class action status. Frieman and Brice appealed, and a unanimous three-judge panel of the First District, Division One, upheld the lower court.

First, the appellate panel ruled that Frieman and Brice had failed to show how class certification would benefit the aggrieved parties and the court — requirements for forming a class. According to the court, the plaintiffs sought class status so that they could force the quarry to disgorge its profits.

"Plaintiffs argue that forcing the quarry to turn over all profits made during the period that it was in violation of the various environmental and building regulations would be an effective way to prevent future violations under the ‘necessary to prevent’ prong of the UCL. While that may be true, it is not dispositive," Presiding Justice James Marchiano wrote for the court. He suggested the plaintiffs could use the streamlined provisions of the UCL to obtain an injunction against the quarry.

The court then turned to the issue of nuisance. Here, the court relied heavily on City of San Jose v. Superior Court, (1974) 12 Cal.3d 447, a case involving noise, vapor, dust and vibration from the San Jose airport. In that case, the court refused to certify a class action because members of the class would have had such different experiences. The court in City of San Jose held: "An approaching or departing aircraft may or may not give rise to actionable nuisance or inverse condemnation depending on a myriad of individualized evidentiary factors. While landing or departure may be a fact common to all, liability can be established only after extensive examination of the circumstances surrounding each party. Development, use, topography, zoning, physical condition and relative location are among the many important criteria to be considered. … The result becomes a statistical permutation, and the requisite number of subclassifications quickly approaches the total number of parcels in the class."

The same situation applied in Marin County, the First District held. The court pointed to two reports submitted by the quarry. A noise report by Charles M. Salter Associates, Inc., concluded that landscaping, soil conditions, ridgelines, intervening structures, atmospheric conditions, construction types and other factors would affect the noise heard by residents in the vicinity of the quarry. A report by Blast Dynamics, Inc., concluded that no two locations would experience the same vibrations from blasts at the quarry because of variations in rock and soil formations.

"The variables that prevented class treatment in City of San Jose are analogous to the variables present in this case," Marchiano wrote. "Rather than mere variations in the measure of damages [as the plaintiffs had argued], these factors are keys to defendant quarry’s liability. Whether each resident even heard or felt the impact of quarry’s operations is subject to separate and differing matters of proof."

The Case:
Frieman v. San Rafael Rock Quarry, Inc., No. A101294, 04 C.D.O.S. 1616, 2004 DJDAR 2409. Filed February 24, 2004.
The Lawyers:
For Frieman: Patricia E. Henle, (415) 929-3197.
For San Rafael Rock Quarry: John M. Taylor, Taylor & Wiley, (916) 929-5545.