Mr. Murphy? Judge LaBarbera. Mr. LaBarbera? Mr. Murphy. Mr. Briggs? Mr. Murphy. Mr. Murphy? Mr. Packard.
From an email to Tom Murphy of “Reclamator” AES from Mr. Kotarski. Odd that Judge LaBarbera is apparently assigned to hear this case since he’s hearing the PZLDF
Los Osos 45 case, and for sure there’d have to be some kind of conflict here since Mr. Briggs and Mr. Packard are involved in that case as well, not to mention the Basin Plan, “wastewater,” “discharges,” and other interesting stuff. The October date seems a long away way, especially since isn’t the EIR on the County Sewer Plan sure to be in the wind by then? Will this turn out to be a race for the cliff, as in, a traditional sewer plant is built and shortly thereafter the judge rules that
hahahahahah the Reclamator doesn’t “discharge” and legally rules on what the word “discharge” and “waste” actually mean, or could mean or do mean, and it turns out that Los Ososians could have (legally) been allowed to consider and use a variety of options, including onsites to comply with what the Basin Plan legally defined, except Briggs & Packard got it wrong, but then, well,
hahahahahah, too late. Or not. Well, stay tuned.
The email:
Tom:
The complaint was filed on June 2, 2008, and has been assigned to the Hon. Barry T. LaBarbera for all purposes. A case management conference has been set for October 6, 2008, at 9:00 a.m. in Department 2. The defendants are required to respond to the complaint within 30 days of service; we cannot agree to give them an extension of time exceeding 15 additional days without prior court approval.
I will keep you posted as the defendants are served.
Ken
KENNETH A. KOTARSKI,
A PROFESSIONAL CORPORATION
10 Universal City Plaza, Suite 2200
Universal City, California 91608
The lawsuit:
Kenneth A. Kotarski (State Bar No. 100954)
HAMRICK & EVANS, LLP
10 Universal City Plaza, Suite 2200
Universal City, California 91608
Telephone No.: (818) 763-5292
Fax No.: (818) 763-2308
Attorneys for
Plaintiffs
DEE THOMAS MURPHY; ADVANCED ENVIRONMENTAL SYSTEMS, INC. and AES CENTRAL COAST DISCHARGE ELIMINATION COMPANY, LLCSUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN LUIS OBISPO
DEE THOMAS MURPHY, an individual; ADVANCED ENVIRONMENTAL SYSTEMS, INC., A Nevada Corporation; and AES CENTRAL COAST DISCHARGE ELIMINATION COMPANY, LLC, A California Limited Liability Company,
Plaintiffs,
v.
STATE OF CALIFORNIA; CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY; STATE WATER RESOURCES CONTROL BOARD; CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, CENTRAL COAST REGION; HARVEY PACKARD; ROGER W. BRIGGS; and DOES 1 through 100, inclusive,
Defendants.
Case No.:
[Unlimited Jurisdiction]
COMPLAINT FOR DAMAGES
1. Defamation;
2. Trade Libel;
3. Tortious Interference;
4. Declaratory Judgment; and,
5. Injunctive Relief
Plaintiffs DEE THOMAS MURPHY, an individual, ADVANCED ENVIRONMENTAL SYSTEMS, INC., A Nevada Corporation, and AES CENTRAL COAST DISCHARGE ELIMINATION COMPANY, LLC, A California Limited Liability Company, allege the following:
JURISDICTION AND PARTIES
1. Plaintiff DEE THOMAS MURPHY (“Mr. Murphy”) is an individual residing in the County of San Luis Obispo, State of California.
2. Plaintiff ADVANCED ENVIRONMENTAL SYSTEMS, INC. (“Advanced”) is a Nevada corporation doing business in the County of San Luis Obispo, State of California.
3. Plaintiff AES CENTRAL COAST DISCHARGE ELIMINATION COMPANY, LLC (“AES”) is a California Limited Liability Company with its principal place of business in the County of San Luis Obispo, State of California.
4. Defendant STATE OF CALIFORNIA (the “State”) is one of the fifty
subnational entities of the
United States.
5. Defendant CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY (“Cal/EPA”) was created in 1991 by Governor's Executive Order to create a cabinet level voice for the protection of human health and the environment and to assure the coordinated deployment of State resources, all towards its mission to restore, protect and enhance the environment, and to ensure public health, environmental quality and economic vitality.
6. Defendant STATE WATER RESOURCES CONTROL BOARD (“State Water Board”) was created by the Legislature in 1967 with a mission to ensure the highest reasonable quality for waters of the State, while allocating those waters to achieve the optimum balance of beneficial uses. There are nine Regional Water Quality Control Boards (“Regional Boards”), the mission of which is to develop and enforce water quality objectives and implementation plans that will best protect the beneficial uses of the State's waters, recognizing local differences in climate, topography, geology and hydrology.
7. Defendant CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, CENTRAL COAST REGION (“Central Coast Water Board”) is one of the nine Regional Boards of the State Water Board.
8. Plaintiffs are informed and believe, and based thereon allege, that defendant HARVEY PACKARD (“Packard”) is an individual and the Land Use, Section Manager and the Supervising Water Resource Control Engineer of the Central Coast Water Board.
9. Plaintiffs are informed and believe, and based thereon allege, that defendant ROGER W. BRIGGS (“Briggs”) is an individual and the Executive Officer of the Central Coast Water Board.
10. The true names and capacities, whether individual, corporate, associate, agents, representatives, employees, or otherwise, of Defendants DOES 1 through 100, inclusive, are presently unknown to Plaintiffs, who therefore sue these Defendants by such fictitious names. Plaintiffs are informed and believe and thereon allege that each of the DOE Defendants was and is either intentionally, negligently, or in some other manner, the cause or a substantial contributing cause of, or otherwise responsible for, the damages suffered by Plaintiffs. Plaintiffs will amend this Complaint to allege the true names and capacities of each DOE Defendant, together with such allegations as may be appropriate, when their names have been ascertained.
11. Plaintiffs are informed and believe and thereon allege that at all times mentioned in this Complaint, each Defendant was the agent, servant, employee, partner, joint venturer and/or franchisee of each of the remaining Defendants herein, and was at all times acting within the course and scope of said agency, service, employment, partnership, joint venture and/or franchise. Moreover, Plaintiffs are informed and believe and thereon allege that each act and omission hereinafter alleged on the part of any one Defendant was done with the approval and consent and was ratified by each of the remaining Defendants.
12. Plaintiffs have timely demanded retractions of all defamatory statements, which demands have been refused.
13. Plaintiffs have timely filed claims with the California Victim Compensation and Government Claims Board against each Defendant, which claims have been considered and rejected and/or rejected by operation of law.
FACTS COMMON TO ALL CAUSES OF ACTION
14. Plaintiffs are responsible for the development and introduction of a patented and patent pending advanced innovative control (treatment) technology that eliminates all pollutants associated with incoming wastewater streams. The RECLAMATOR™ is a technology invented or licensed to be used by Plaintiffs that repurifies wastewater flows for 100% beneficial recycle and reuse applications at the source (private property), providing a service to eliminate the discharge of pollutants. The RECLAMATOR™ repurifies the wastewater stream to meet the water quality standard as defined in the U.S. Environmental Protection Agency Maximum Contaminant Level Goal (“MCLG”), the level of a contaminant in drinking water below which there is no known or expected risk to health (the MCLGs allow for a margin of safety and are non-enforceable public health goals). The RECLAMATOR™ is the only full range technology capable of feasibly repurifying wastewater streams associated with “small,” single-family dwellings up to “large,” municipal type systems serving an entire municipality.
15. Plaintiffs are informed and believe and thereon allege that the quality of water discharged by the RECLAMATOR™, referred to as “reclamate,” is a valuable resource which is a superior water quality as compared to effluent limitations listed on permits issued within the Central Coast Water Board jurisdiction for recycled water. See California Water Code §13050 of the Porter-Cologne Water Quality Control Act 2002. As a valuable resource, reclamate or permeate of the RECLAMATOR™ is not waste, but instead is a sustainable alternative water source. See 33 U.S.C. §1300 (2006). The RECLAMATOR™ represents the Best Available Demonstrated Control Technology (“BADCT”), providing for the maximum degree of effluent reduction and achieves the National Goal which is “a standard permitting no discharge of pollutants” as required by the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (“CWA”). See 33 U.S.C. §1251 et seq. (2006). The RECLAMATOR™ additionally is the best available technology economically achievable which is required to be applied to serve each point source (sewer pipe coming from a building or source) discharge to comply with the pretreatment requirements so as to contain pollutants to prevent them from migrating via a publicly owned treatment works or via soil into a drinking water aquifer so as not to cause water and other environmental pollution. These federally mandated pretreatment requirements are required to be applied to control sources of toxic pollutants that are listed on the published EPA Toxic Pollutants List. Nitrosamines, one of the highest level carcinogens known to man, is on the EPA Toxic Pollutants List. Ammonia associated with domestic sewage is the source of nitrosamines. All new sources of domestic wastewater are required to comply with pretreatment requirements even before discharging into a community sewer (publicly owned treatment works). See 33 U.S.C. §1317(a),(b) and (c).
16. On September 14, 2007, Packard appeared by telephone on a radio broadcast, “First News,” for the purpose of refuting claims made by Mr. Murphy and Mark Low (on an earlier broadcast of the same program) with respect to the RECLAMATOR™ technology (the “Radio Broadcast”). During the course of the Radio Broadcast, Packard published the following statements:
1. “[The RECLAMATOR™] doesn’t eliminate waste, which they claim. There will still be levels of waste coming out of the system and into people’s groundwater.”
2. In response to a comment by the program host, “So, in other words, levels of waste that are still not acceptable,” Packard responded, “That’s right.”
3. “The timing right now is kind of curious and, in fact, Murphy and Low told me that they’re here right now to disrupt the county assessment vote process.”
4. In response to a comment by the program host, “He told you that,” Packard responded, “Yes, he did.”
5. “Well, they obviously showed up right as the county assessment vote was starting, and making these claims that are unsubstantiated and not true, so we thought it was curious and we asked them directly why they came right now and they said to disrupt the county assessment process.”
17. The statements by Packard set out in paragraph 16 above were false and were meant to harm Plaintiffs and their businesses and, in addition, to interfere with their contractual relations with actual and potential users of the RECLAMATOR™. Packard had been aware of Mr. Murphy’s efforts to provide his technology as a solution for the Los Osos discharges since 1994. His department actually conducted a demonstration on the biological process of the RECLAMATOR in Los Osos in 1995. Mr. Murphy has been actively involved in the Los Osos Project since that time making several proposals which Packard was made aware of. Packard was in possession of data and documentation that did substantiate Mr. Murphy’s and Low’s claims prior to the Radio Broadcast.
18. On September 6, 2007, Briggs sent to Mr. Murphy and to Mark Low a letter of even date wherein Briggs stated that, “the Reclamator does discharge waste and is subject to Water Board regulation.” Attached hereto as Exhibit “1” is a true and correct copy of the Briggs letter dated September 6, 2007. Further, the Briggs letter of September 6, 2007, was published to Cinthea Coleman by sending a copy to Ms. Coleman as a “bcc” recipient of the e-mail transmittal of the September 6, 2007, letter from Briggs to Mr. Murphy and to Mark Low.
19. On March 6, 2008, Briggs sent to Piper Reilly a letter of even date wherein Briggs stated that, “… even if [the RECLAMATOR™] works as well as its promoter’s [sic] claim it will, the Reclamator will still discharge waste. The Reclamator therefore does not comply with the Basin Plan, which prohibits all discharges of waste from individual sewage disposal systems, including engineered alternative systems.” Attached hereto as Exhibit “2” is a true and correct copy of the Briggs letter dated March 6, 2008.
20. The statements by Briggs in his letters of September 6, 2007, and March 6, 2008, were false and were meant to harm Plaintiffs and their businesses and, in addition, to interfere with their contractual relations with actual and potential users of the RECLAMATOR™.
21. Mr. Murphy enjoyed a good reputation as an honest and well-informed professional before Defendants, and each of them, attacked Mr. Murphy’s reputation by these libelous and slanderous statements.
22. Advanced and AES enjoyed a good business reputation in their industry, which has been damaged as a result of Defendants’ libelous and slanderous statements.
FIRST CAUSE OF ACTION
(By All Plaintiffs for Defamation Against All Defendants)
23. Plaintiffs reallege paragraphs 1 through 22 and incorporate them herein by reference.
24. Defendants, and each of them, caused the formulation, development, publication and dissemination of the Radio Broadcast and the letters of September 6, 2007, and March 6, 2008, which erroneously and falsely stated, among other things, that the RECLAMATOR™ discharges waste and that Plaintiffs sought to, and did, interfere with a county voting process.
25. The statements made in the Radio Broadcast and the letters of September 6, 2007, and March 6, 2008, are false in their entirety as they pertain to Plaintiffs and are defamatory on their face as written or spoken, as well as through innuendo, as they are false and unprivileged publications which expose Plaintiffs to hatred, contempt, ridicule or obloquy, which have caused them to be shunned or avoided and which have injured Plaintiffs in their trade and occupation.
26. As a proximate result of the above described defamatory statements made by Defendants, and each of them, Plaintiffs have suffered loss of reputation, shame and mortification, all to their general damage, in a sum to be proven at trial, but which exceeds $50,000.00.
27. As a further proximate result of the above-described false and defamatory statements, Mr. Murphy has suffered severe emotional distress, all to his general damage, in a sum to be proven at trial, but which exceeds $50,000.00.
28. As a direct and proximate result of the publication of the above-described false and defamatory statements, Plaintiffs have suffered damages in respects to their property, business, trade, profession and occupation in an amount not less than $79,500,000.00.
29. Defendants, and each of them, published the defamatory statements either knowing them to be false, or with reckless disregard for the truth, without reasonable investigation into the truth of the matter and without a good faith belief in the truth of the matter. Defendants’ acts in publishing and disseminating the defamatory statements were done with knowledge by Defendants that such acts would cause Mr. Murphy to suffer great humiliation and mental anguish and injury to Plaintiffs’ occupation and reputation. Defendants’ acts in publishing and disseminating the defamatory statements were done with intent by Defendants that such acts would discredit Mr. Murphy and his RECLAMATOR™ technology in the eyes public so as to gain the public’s support in a vote that would give the County of San Luis Obispo authority to impose assessments on the homes and property of the people of Los Osos to assist the County in building a publicly owned treatment works or public works (POTW) project and which, if Packard had told the truth, as is his fiduciary duty, the people of Los Osos would not vote to give the County rights to assess their properties because the people would opt for the much more less expensive RECLAMATOR™ solution. Furthermore, Packard did not want to acknowledge the pretreatment requirements of the federal water law and had no intent to comply with the federally mandated pretreatment requirements in association with the POTW and had no intention to require the project to comply with these pretreatment requirements utilizing the RECLAMATOR™ because they would cause the justification for the POTW to be no longer existent. As the RECLAMATOR™ purified the water at the source, there would then be 1) no need for the POTW as there would be no more discharges, and 2) no sewer user fees could be charged to pay for the POTW as there would no longer be any waste water or discharges to manage, and 3) because there would only be reclaimed /repurified water, a valuable resource, required hookups to a POTW by a public entity would only cause such public entity to be required to pay for the water instead of being able to charge for sewage. Therefore, there would be no public works project or associated revenues to pay for a POTW project, provided Murphy was successful in marketing his RECLAMATOR™ as the most cost effective solution to eliminate the discharges in Los Osos. Defendants’ acts were therefore willful, wanton, intentional, malicious and oppressive, therefore justifying an award of damages.
SECOND CAUSE OF ACTION
(By Advanced and AES for Trade Libel Against All Defendants)
30. Plaintiffs reallege paragraphs 1 through 22 and incorporate them herein by reference.
31. The acts of Defendants, and each of them, constitute trade libel under California statutory and common law. Defendants’ foregoing acts constitute statements presented as fact, not opinion, which disparage the quality of the RECLAMATOR™ as well as Advanced and AES.
32. Defendants’ defamatory statements have damaged the good business reputation of Advanced and AES by, among other things, erroneously and falsely stating that the RECLAMATOR™ discharges waste. Defendants’ defamatory statements, which have been widely disseminated by Defendants, and each of them, news organizations and trade associations, have caused Advanced and AES to lose sales and other potential business opportunites, and to otherwise suffer monetary loss.
33. Advanced and AES are informed and believe and thereon allege that unless enjoined, Defendants, and each of them, will continue to make such false and defamatory statements, and engage in such trade libel. Advanced and AES are being, and will continue to be, irreparably harmed by Defendants’ trade libel unless Defendants, and each of them, are enjoined from engaging in such trade libel.
34. As a direct and proximate result of the publication of the above-described false and defamatory statements, Advanced and AES have suffered damages in an amount not less than $79,500,000.00.
35. Defendants, and each of them, published the defamatory statements either knowing them to be false, or with reckless disregard for the truth, without reasonable investigation into the truth of the matter and without a good faith belief in the truth of the matter. Defendants’ acts in publishing and disseminating the defamatory statements were done with knowledge by Defendants, and each of them, that such acts would cause Advanced and AES to lose sales and other potential business opportunites, and to otherwise suffer monetary loss. Defendants’ acts were therefore willful, wanton, intentional, malicious and oppressive, therefore justifying an award of damages.
THIRD CAUSE OF ACTION
(By All Plaintiffs for Tortious Interference Against All Defendants)
36. Plaintiffs reallege paragraphs 1 through 22 and incorporate them herein by reference.
37. The acts of Defendants, and each of them, constitute intentional tortious interference with prospective economic advantage and economic business relations in violation of California common law. Several customers of Plaintiffs who had placed orders for the RECLAMATOR™ have cancelled those orders because of the foregoing tortious interference. Moreover, potential customers of the RECLAMATOR™ who would have otherwise purchased the RECLAMATOR™ have refrained from buying the RECLAMATOR™ because of Defendants’ foregoing tortious interference.
38. Advanced and AES are informed and believe and thereon allege that unless enjoined, Defendants, and each of them, will continue to make such false and defamatory statements, and to unlawfully coerce prospective purchasers to not purchase the RECLAMATOR™. Defendants’ acts in this regard have irreparably harmed, and will continue to irreparably harm, Plaintiffs.
39. As a direct and proximate result of the above-described acts by Defendants, and each of them, Plaintiffs have been harmed through the loss of economic advantage from prospective purchasers in an amount not less than $79,500,000.00.
40. Defendants’ acts were done with knowledge by Defendants, and each of them, that such acts would cause Advanced and AES to loose sales and other potential business opportunites, and to otherwise suffer monetary loss. Defendants’ acts were therefore willful, wanton, intentional, malicious and oppressive, therefore justifying an award of damages.
FOURTH CAUSE OF ACTION
(By All Plaintiffs for Declaratory Judgment Against All Defendants)
41. Plaintiffs reallege paragraphs 1 through 22, inclusive, paragraphs 24 through 29, inclusive, paragraphs 31 through 35, inclusive, and paragraphs 37 through 40, inclusive, and incorporate them herein by reference.
42. In the wastewater industry, the word "effluent" refers to a "waste" or "pollutants" and as such cannot collectively apply to water discharged from treatment systems having a beneficial reuse value. Any beneficial reuse water produced by a treatment system having a beneficial reuse quality is not "waste" and therefore is not "effluent". In particular, in the wastewater industry the word “discharge” means, when used without qualification means “discharge of a pollutant” or “discharge of pollutants”. See 33 U.S.C. §1362(16). The quality of the water discharged by the RECLAMATOR™ meets the MCLG standards and as such, is a superior water quality as compared to effluent limitations for most all other recycled water applications within the State of California.
As a valuable resource, the reclamate produced by the RECLAMATOR™ does not contain waste or a pollutant, but instead is a sustainable alternative water source of value and is economically beneficial to its owner for reuse applications.
43. Plaintiffs are entitled to entry of a judgment declaring that the RECLAMATOR™ does not discharge waste or pollutants. The sustainable alternative water source or reclamate water produced by the RECLAMATOR is reclaimed / purified water intended for a direct or indirect beneficial reuse application and is not an effluent for disposal. Recycled water produced by the RECLAMATOR™ for reuse applications is a valuable resource. As a valuable resource, it is the property of its owner and as such, its owner is entitled to receive fair and just compensation at fair market value if it were to be taken from the possession of its owner by any other entity, whether public or private.
WHEREFORE, Plaintiffs pray for judgment as follows:
FIRST CAUSE OF ACTION
1. For general damages in an amount in excess of $50,000.00, according to proof, as a proximate result of the above described defamatory statements having caused Plaintiffs to suffer loss of reputation, shame and mortification;
2. For general damages in an amount in excess of $50,000.00, according to proof, as a proximate result of the above described defamatory statements having caused Mr. Murphy to suffer severe emotional distress;
3. For general damages in an amount not less than $79,500,000.00 as a proximate result of the above described defamatory statements having caused Plaintiffs to suffer damages in respects to their property, business, trade, profession and occupation;
4. For special damages in an amount yet unascertained but to be proven at trial;
SECOND CAUSE OF ACTION
5. For general damages in an amount not less than $79,500,000.00;
THIRD CAUSE OF ACTION
6. For general damages in an amount not less than $79,500,000.00;
FOURTH CAUSE OF ACTION
7. For a judgment declaring that the RECLAMATOR™ does not discharge waste, but does discharge water, a valuable resource and as such is justified to be purchased at fair market value as personal property if taken from its owner;
ON ALL CAUSES OF ACTION
8. For an order enjoining Defendants, and each of them, from engaging in acts of libel, slander, trade libel and tortious interference with respect to Plaintiffs;
9. For costs of suit incurred herein; and
10. For such other and further relief as the Court may deem just and proper.
DATED: May __, 2008 HAMRICK & EVANS, LLP
By: _________________________
KENNETH A. KOTARSKI
Attorneys for Plaintiffs
DEE THOMAS MURPHY; ADVANCED ENVIRONMENTAL SYSTEMS, INC. and
AES CENTRAL COAST DISCHARGE ELIMINATION COMPANY, LLC
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