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1 DOUGLAS T. SLOAN, City Attorney
CITY OF FRESNO E-FILED
2 By: Francine M. Kanne, Chief Assistant City Attorney (SBN 139028) 10/19/2020 5:27 PM
2600 Fresno Street Superior Court of California
3 Fresno, CA 93721-3602
Telephone: (559) 621-7500 County of Fresno
4 Facsimile: (559) 488-1084 By: A. Ramos, Deputy
5 Jeffery L. Caufield, Esq. (SBN 166524)
jeff@caufieldjames.com
6 Matthew D. McMillan, Esq. (SBN 262394)
mattm@caufieldjames.com
7 CAUFIELD & JAMES, LLP
2851 Camino Del Rio South, Suite 410
8 San Diego, CA 92108-3843
Telephone: (619) 325-0441
9 Facsimile: (619) 325-0231
Exempt from filing
10 Attorneys for Defendant fee pursuant to
THE CITY OF FRESNO Gov’t Code § 6103
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF FRESNO
13
14 ) Lead Case No.: 16CECG02937
KAREN MICHELI, et al., ) Consolidated Case No.: 17CECG01724
15 )
Plaintiffs, ) Assigned for All Purposes to:
16 ) Hon. Judge Rosemary McGuire, Dept. 502
v. )
17 ) MEMORANDUM OF POINTS AND
THE CITY OF FRESNO, et al. ) AUTHORITIES IN SUPPORT OF
18 ) DEFENDANT CITY OF FRESNO’S
Defendant. ) DEMURRER TO PLAINTIFFS’ FOURTH
19 ) AMENDED COMPLAINT
JACKIE FLANNERY, et al., )
20 ) Hearing Date: February 23, 2021
Plaintiffs, ) Hearing Time: 3:30 p.m.
21 )
v. ) Lead Action Filed: September 9, 2016
22 ) Consolidated Action Filed: May 17, 2017
THE CITY OF FRESNO, et al. )
23 ) Trial Date: Not Set
Defendant. )
24
25
26
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S
DEMURRER TO FOURTH AMENDED COMPLAINT
1 TABLE OF CONTENTS
2
3 I. INTRODUCTION ………………………………………………………………….......1
II. FACTUAL BACKGROUND ………………………………………………………….1
4
A. PLAINTIFFS SEEK DAMAGES ALLEGEDLY CAUSED BY CORROSIVE
5
DRINKING WATER SUPPLIED BY THE CITY OF FRESNO ……………..1
6 B. IN CALIFORNIA, THE STATE BOARD MAINTAINS PRIMARY
7 AUTHORITY OVER THE REGULATION AND ENFORCEMENT OF
8 DRINKING WATER STANDARDS ………………………………………….2
9 1.CALIFORNIA ADOPTED THE EPA’S LEGAL STANDARD FOR
CORROSIVITY LIMITS UNDER THE LEAD AND COPPER RULE ……3
10
C. HARTWELL AND IN RE GROUNDWATER ESTABLISH THE
11
STANDARD FOR DETERMINING WHEN JUDICIALLY-ACTIONABLE
12
“VIOLATIONS” OCCUR ……………………………………………………..4
13 III. LEGAL ANALYSIS …………………………………………………….......................5
14 A. STANDARD ON DEMURRER ……………………………………………….5
15 B. PLAINTIFFS’ ACTION IS BARRED AS A MATTER OF LAW AS THEIR
SWORN DISCOVERY RESPONSES MAKE CLEAR THEIR CLAIMS “ARE
16
NOT BASED ON A VIOLATION OF ANY NUMERIC WATER QUALITY
17
STANDARD,” CONTRARY TO THE ALLEGATIONS IN THE
18
COMPLAINT …………………………………………………………………..6
19 C. THE COMPLAINT FAILS TO ALLEGE FACTS NECESSARY TO IMPOSE
20 LIABILITY UNDER PLAINTIFFS’ TORT AND CONTRACT-BASED
21 CLAIMS (SECOND THROUGH SIXTH CAUSES OF ACTION) FOR THE
22 VIOLATION OF A MANDATORY DUTY …………………………………..7
D. PLAINTIFFS FAIL TO STATE A CLAIM FOR INVERSE
23
CONDEMNATION ……………………………………………………………9
24
E. THE UNJUST ENRICHMENT CLAIM FAILS AS A MATTER OF LAW ..11
25 F. PLAINTIFFS FAILS TO STATE A CLAIM FOR BREACH OF IMPLIED
26 WARRANTY OF FITNESS ………………………………………………….12
27 G. CLASS ACTION ALLEGATIONS ARE LEGALLY WITHOUT MERIT …14
28 H. LEAVE TO AMEND SHOULD BE DENIED ……………………………….15
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1 IV. CONCLUSION ……………………………………………………………………….15
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1 TABLE OF AUTHORITIES
2 CASES
3
American Suzuki Motor Corp. v. Superior Court
4 37 Cal. App. 4th 1291 (1995) ……………………………………………………………13
5 Beckham v. Stockton
64 Cal. App. 2d 487 (1944) …………………………………………………………...….10
6
Blank v. Kirwan
7 39 Cal. 3d 311 (1985) ……………………………………………………………..………5
8 Border Business Park v. San Diego
142 Cal. App. 4th 1538 (2006) …………………………………………………………..10
9
Bridgeford v. Pacific Health Corp.
10 202 Cal. App. 4th 1034 (2012) ……………………………………………………….….14
11 California Medical Ass’n v. Aetna U.S. Healthcare of California
94 Cal. App. 4th 151 (2001) ……………………………………………………………..12
12
Cansino v. Bank of America,
13 224 Cal. App. 4th 1462 (2014) ………………………………………………………6, 7, 9
14 City of Los Angeles v. Superior Court
194 Cal. App. 4th 210 (2011) ……………………………………………………...….9, 10
15
City of San Jose v. Superior Court
16 12 Cal. 3d 447 (1974) …………………………………………………………………....15
17 Coshow v. City of Escondido
132 Cal. App. 4th 687(2005) …………………………………………………………...7, 8
18
C.R. v. Tenet Healthcare Corp.
19 169 Cal. App. 4th 1094 (2009) ……………………………………………………………5
20 Del E. Webb Corp. v. Structural Materials Co.
123 Cal. App. 3d 593 (1981) …………………………………………………..6, 7, 8, 9, 15
21
Dept. of Fish & Game v. Superior Court
22 197 Cal. App. 4th 1323 (2011) ………………………………………………………..…15
23 Donabedian v. Mercury Ins. Co.
116 Cal. App. 4th 968 (2004) …………………………………………………………..…5
24
Durell v. Sharp Healthcare
25 183 Cal. App. 4th 1350 (2010) ………………………………………………………11, 12
26 Evans v. Lasco Bathware, Inc.
178 Cal. App. 4th 1417 (2009) …………………………………………………………..15
27
Glenbrook Dev. Co. v. Brea
28 253 Cal. App. 2d 267 (1967) …………………………………………………………….13
iii
1 Goodman v. Kennedy
18 Cal.3d 335 (1976) …………………………………………………………………….15
2
Harlan v. Roadtrek Motorhomes, Inc.
3 2009 WL 928309, at *8-9 (S.D. Cal. Apr. 2, 2009) …………………………………...…13
4 Hartwell Corp. v. Sup. Ct. (Santamaria)
27 Cal. 4th 256 (2002) ………………………………………………………….....2, 4, 5, 6
5
In re ConAgra Foods, Inc.
6 908 F. Supp. 2d 1090 (C.D. Cal. 2012) ……………………………………………...…..12
7 In re Groundwater Cases
154 Cal. App. 4th 659 (2007) ………………………………………...….2, 4, 5, 6, 7, 8, 15
8
Kalnoki v. First American Trustee Servicing Solutions, LLC
9 8 Cal. App. 5th 23 (2017) ……………………………………………………………6, 7, 9
10 Keith v. Buchanan
173 Cal. App. 3d 13 (1985) ………………………………………………………………14
11
Klein v. Chevron U.S.A., Inc.
12 202 Cal. App. 4th 1342 (2012) ………………………………………………………….11
13 Lance Camper Mfg. Corp. v. Republic Indem. Co.
44 Cal. App. 4th 194 (1996) ……………………………………………………………..11
14
Linder v. Thrifty Oil Co.
15 23 Cal. 4th 429 (2000) …………………………………………………………………...14
16 Los Angeles v. Geiger
94 Cal. App. 2d 180 (1949) ……………………………………………………………....10
17
Mateel Environmental Justice Foundation v. Edmund A. Gray Co.
18 115 Cal. App. 4th 8 (2003) ………………………………………………………………..3
19 McKell v. Washington Mut., Inc.
142 Cal. App. 4th 1457 (2006) …………………………………………………………..11
20
Melchior v. New Line Productions, Inc.
21 106 Cal. App. 4th 779 (2003) ……………………………………………………………11
22 Metowski v. Traid Corp.
28 Cal. App. 3d 332 (1972) ……………………………………………………………....12
23
Michael J. v. Los Angeles Cnty. Dept. of Adoptions
24 201 Cal. App. 3d 859 (1988) ………………………………………………………………7
25 Miller v. Railroad Comm’n of the State of California
9 Cal. 2d 190 (1937) ……………………………………………………………………..12
26
NuCal Foods, Inc. v. Quality Egg LLC
27 918 F. Supp. 2d 1023 (E.D. Cal. 2013) …………………………………………………..13
28
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1 Peterson v. Cellco Partnership
164 Cal. App. 4th 1583 (2008) …………………………………………………………..12
2
Richmond v. Shasta Cmty. Servs. Dist.
3 32 Cal. 4th 409 (2004) …………………………………………………………………...11
4 Rutherford Holdings, LLC v. Plaza Del Rey
223 Cal. App. 4th 221 (2014) ……………………………………………………………12
5
State of California v. Superior Court
6 150 Cal. App. 3d 848 (1984) ………………………………………………………….…..8
7 Western States Petroleum Ass’n v. Dept. of Health Services
99 Cal. App. 4th 999 (2002) ……………………………………………………………2, 3
8
Williams v. Moulton Niguel Water Distr.
9 22 Cal. App. 5th 1198 (2018) ……………………………………………..…2, 3, 9, 10, 11
10
11
12 STATUTES & CODES
13
14 Cal. Civ. Proc. Code
15 § 430.10 ………………………………………………………...…………………5, 7, 9
16
Cal. Com. Code
17
§ 2315 ……………………………………………………………………………..12, 13
18
19
Cal. Evid. Code
20 § 452(d) ………………………………………………………………………...6, 7, 8, 9
21
22 Cal. Gov’t Code
23 § 810 …………………………………………………………………………………....7
§ 815 ……………………………………………………………………………………7
24
§ 815.6 ………………………………………………………………………………….8
25
26 Cal. Health & Safety Code
27 § 116270 ………………………………………………………………………….….2, 5
28 § 116271 ………………………………………………………………………………..2
v
1 § 116275 ……………………………………………………………………………..2, 3
2 § 116325 ………………………………………………………………………………..2
3 § 116350 ………………………………………………………………………………..2
§ 116365 ………………………………………………………………………………..2
4
§ 116370 ………………………………………………………………………………..5
5
6 Cal. Code Regs., tit. 22
7 § 64449 …………………………………………………………………………..3, 7, 14
8 § 64670 ………………………………………………………………………………2, 3
9 § 64674 ………………………………………………………………………………3, 9
§ 64678 ……………………………………………………………………...………….3
10
11
40 C.F.R.
12
§ 141.80 ………………………………………………………….………………….2 , 3
13
14 42 U.S.C.
15 § 300f ………………………………………………………………………………...2, 5
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vi
1 I. INTRODUCTION
2 Defendant City of Fresno respectfully requests that the Court sustain the demurrer to all causes
3 of action set forth in Plaintiffs’ Fourth Amended Complaint (“Complaint”).
4 II. FACTUAL BACKGROUND
5 A. Plaintiffs Seek Damages Allegedly Caused By Corrosive Drinking Water Supplied
6 by the City of Fresno
7 In this action, Plaintiffs, on behalf of themselves and putative class members, seek damages
8 against the City for harm they claim to have suffered as a result of “aggressive, corrosive, degraded, and
9 substandard” drinking water the City supposedly supplied to residents from its Northeast Surface Water
10 Treatment Facility (“NESWTF”). (See Declaration of Matthew D. McMillan (“McMillan Decl.”), filed
11
concurrently herewith at ¶ 2, Ex. 1; see also Request for Judicial Notice (“RJN”), filed concurrently
12
herewith at ¶ 1, Fourth Am. Compl. (“FAC”) at p. 2, ll. 1-14). Plaintiffs claim that, beginning in 2004
13
when the City brought the NESWTF online (FAC at ¶ 1), the City failed to properly operate and
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maintain the NESWTF by introducing surface water to the existing groundwater system “without
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appropriate treatment to address the changing chemistry and its impact to Fresno’s water supply.” (FAC
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at ¶ 3(c)). Specifically, Plaintiffs claim the City failed to operate the NESWTF with State-mandated
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corrosion control treatment, failed to rigorously control the pH levels of its water, and modified its
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corrosion control treatment without approval from the State Board. (FAC, ¶ 3(b) at 4:4-6).1 They further
19
claim this improper treatment caused the water to become “highly aggressive and corrosive” to the
20
21 privately-owned galvanized steel pipes in residents’ homes (FAC at ¶ 3(c)), which, in turn, caused
22 corrosive damage to the pipes themselves, discolored water inside the homes, and contamination of
23 drinking water with elevated levels of lead, iron, and other toxic contaminants in excess of allowable
24 numerical limits under the SDWA and LCR. (See, e.g., FAC at ¶¶ 2, 11, 13, 15, 17-24, 47, 50, 84, 86,
25 92, & 94). Plaintiffs also claim the City failed to comply with provisions of the federal and state Safe
26 Drinking Water Acts (collectively, the “SDWA”), and water testing, notification, and reporting
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28 1
Plaintiffs alleged these new facts concerning the City’s purported negligent water treatment practices for the first time in the
Fourth Amended Complaint, filed September 17, 2020. See FAC at 4:2-6.
1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S
DEMURRER TO FOURTH AMENDED COMPLAINT
1 requirements under the federal and state Lead and Copper Rules, 40 C.F.R. § 141.80, et seq. and 22
2 C.C.R. § 64670, et seq. (collectively, the “LCR”) (FAC at ¶¶ 3(b), 66-85).
3 Plaintiffs seek damages including diminution in value of their properties, the cost of re-plumbing
4 their homes, ongoing exposure to excessive levels of lead and other toxic substances, and interference
5 with the comfortable enjoyment of life and property. (FAC at ¶¶ 3, 11, 13, 15, 17-24, 62, 95-96, & 104).
6
B. In California, the State Board Maintains Primary Authority Over the Regulation
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and Enforcement of Drinking Water Standards
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The SDWA establishes a comprehensive regulatory scheme for public water systems in
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California. Under the statute, the State of California assumed primary authority to implement the
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federal drinking water regulations enacted by Congress and to set stricter water quality standards than
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those in the federal law. See 42 U.S.C. § 300f, et seq.; Cal. Health & Safety Code § 116270(f); In re
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Groundwater Cases, 154 Cal. App. 4th 659, 677-78 & n.13 (2007). The State Water Resources Control
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Board, Division of Drinking Water, now maintains primary authority over the implementation of these
14
standards. See Cal. Health & Safety Code § 116271. Thus, the Legislature clearly entrusted the
15
regulation and enforcement of the drinking water program to the State Board, which duties the State
16
17 Board must carry out in a manner that most closely matches the legislative intent. Cal. Health & Safety
18 Code §§ 116270, 116325 & 116350; Hartwell Corp. v. Sup. Ct. (Santamaria), 27 Cal. 4th 256, 270
19 (2002); Western States Petroleum Ass’n v. Dept. of Health Services, 99 Cal. App. 4th 999, 1008 (2002).
20 The State Board is responsible for establishing primary and secondary drinking water standards that
21 include numeric contaminant levels, specific treatment techniques, and monitoring and reporting
22 requirements. Cal. Health & Safety Code § 116275(c)-(d); In re Groundwater, at 678, n.14.
23 Primary drinking water standards, including the LCR, are established to protect public health.
24 (See FAC at ¶¶ 70-71, & 84); National Primary Drinking Water Regulations for Lead and Copper, 40
25 C.F.R. §§ 141.80-141.91; § 141.80; see also § 141.80(b) (lead and copper regulations established as a
26 “treatment technique”); Cal. Health & Safety Code §§ 116275(c)(2) & 116365; In re Groundwater, at
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678-79; Williams v. Moulton Niguel Water Distr., 22 Cal. App. 5th 1198, 1203-04 (2018). Secondary
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drinking water standards, including the secondary Maximum Contaminant Level (“secondary MCL”) for
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S
DEMURRER TO FOURTH AMENDED COMPLAINT
1 iron (Cal. Code Regs., tit. 22 § 64449(a)), aim to protect public welfare by regulating constituents in
2 water that primarily affect aesthetic qualities, such as taste, odor, and color. Cal. Health & Safety Code §
3 116275(d); Western States Petroleum, 99 Cal. App. 4th at 1005.
4 1. California Adopted the EPA’s Legal Standard for Corrosivity Limits under the
5 Lead and Copper Rule
6 In 1995, California adopted the Lead and Copper Rule and established a protocol for monitoring
7 lead and copper levels in public water systems which mirrors that established by the EPA. See Cal. Code
8
Regs., tit. 22, § 64670 et seq.; Mateel Environmental Justice Foundation v. Edmund A. Gray Co., 115
9
Cal. App. 4th 8, 20-21 (2003). The purpose of the LCR is to protect public health by minimizing lead
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and copper levels in drinking water, primarily by reducing water corrosivity. 40 C.F.R. §§ 141.80-
11
141.91; Williams, 22 Cal. App. 5th at 1203.2
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Importantly, in 2006, the State amended the SDWA to eliminate a former secondary drinking
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water standard for “non-corrosive” water due to lack of clarity in the regulations and lack of a specific
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procedure for determining compliance. See 22 C.C.R. § 64449; see also McMillan Decl., Ex. 5 at 1361
15
(“Community water system requirements related to corrosivity would be addressed only in the Lead and
16
17 Copper regulations, Chapter 17.5.”); Ex. 6 at p. 2 (“‘Corrosivity’ would be struck because it is
18 thoroughly addressed under the comprehensive monitoring and corrosion control treatment requirements
19 in the Lead and Copper Rule in Chapter 17.5, Title 22.”); RJN at ¶¶ 5-6. In doing so, the California
20 Legislature made clear that the LCR regulations represent the one and only legal standard for
21 determining corrosivity of drinking water in public water systems in California. Id. Thus, allegations of
22 the secondary MCL for iron as a basis for determining water corrosivity fail as a matter of law.
23
24
25 2
To determine the corrosivity of drinking water, the LCR requires routine monitoring at kitchen or bathroom taps of
residences and other buildings based on so-called “action levels” established by the EPA. The action level (“AL”) for lead is
26 0.015 mg/L based on the 90th percentile level of tap water samples taken from consumer faucets. Cal. Code Regs., tit. 22,
§ 64678(d). Accordingly, no more than 10 percent of the samples can be above the AL. Id. If the 90th percentile lead
27 concentration is below the AL, then the water is non-corrosive to piping and fixtures that contain lead.If the 90th percentile
lead concentration is above the AL, the water is potentially corrosive to piping, and the AL is triggered.
An AL exceedance
28 is not a violation of the LCR (Cal. Code Regs., tit. 22 § 64670(b)), but rather, may trigger other requirements within the
discretion of the State. Cal. Code Regs., tit. 22, § 64674. Williams, at 1203-1204.
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S
DEMURRER TO FOURTH AMENDED COMPLAINT
1 C. Hartwell and In Re Groundwater Establish The Standard for Determining When
2 Judicially-Actionable “Violations” Occur
3 Analyzing the legislative intent and policy driving this regulatory scheme, the Courts in Hartwell
4 and In re Groundwater clarified what constitutes enforceable drinking water standards in California. In
5 Hartwell, residents sought damages against multiple water providers for allegedly supplying unhealthy
6 and contaminated water, among other claims. Hartwell, 27 Cal. 4th at 262. The residents alleged water
7 contamination without regard to whether the water met drinking water standards, claiming injury from
8
harmful chemicals that allegedly caused “toxic contamination of drinking water.” Id. at 275-76.
9
In sustaining certain of the water providers’ demurrers attacking these allegations and also
10
barring the residents’ damages claims, the Court reasoned, “An award of damages on the theory that the
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public utilities provided unhealthy water, even if the water met DHS [State Board] standards, ‘would
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plainly undermine the commission’s policy by holding the utility liable for not doing what the
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commission has repeatedly determined that it and all similarly situated utilities were not required to
14
do.’” 3 Id. at 276 [citation omitted] (emphasis added); see also In re Groundwater, at 680 (explaining
15
that such challenges to the adequacy of the agency’s regulatory standards are barred). As noted in
16
17 Hartwell, the water quality “benchmarks” established by the responsible agency, namely numeric
18 contaminant levels (i.e., ALs), allow agencies such as the State Board to perform their regulatory
19 functions. Hartwell, at 276. On remand, the Court of Appeal further explained the responsible agency’s
20 function and authority over drinking water standards:
21 Water quality standards are the product of (DHS) [State Board] study and
22 expertise.” [citation omitted]. Permitting courts and juries to second-guess the
carefully considered decisions of the regulatory agencies on technical water
23 quality issues would flout the Legislature’s policy choice to entrust such
matters to DHS [State Board] . . . This we will not do.
24
25
26 3
The trial court made clear that the same standard the Hartwell court established for the so-called “PUC
27 Regulated Defendants” also applies to public entity water purveyors like the City. In re Groundwater, at 687 &
n.5 (identifying “Public Entity Defendants”). “[T]o constitute a violation of DHS [State Board] standards,
28 Plaintiffs must establish that the PUC Regulated Defendants and the Public Entity Defendants violated the
regulatory requirements of the PUC and DHS [State Board].” In re Groundwater, at 671 (emphasis added.)
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S
DEMURRER TO FOURTH AMENDED COMPLAINT
1 In re Groundwater, at 681 (emphasis added); see Cal. Health & Safety Code §§ 116270, 116370; 42
2 U.S.C. § 300f, Congressional Finding (5); 42 U.S.C. §300g-1(b)(3)(A). Numeric limits are therefore
3 critical to the State Board’s ability to carry out its responsibilities. For this reason, the appellate court
4 held that only numerical standards, rather than general qualitative objectives, constitute enforceable
5 drinking water standards. Id. at 679-84.4
6
The Court of Appeal also held that water providers (like the City) could not be held liable for
7
isolated exceedances of numeric standards. Id. at 687 (“Imposing liability on water suppliers for
8
isolated, individual exceedances of MCLs or ALs would be inconsistent with the purpose for which
9
these limits are established.”) An isolated exceedance is merely the starting point for the regulatory
10
process, and thus does not constitute a “violation.” Id. at 672, 685. For purposes of establishing an
11
actionable “violation” under Hartwell, a plaintiff must prove both that: (1) the drinking water in question
12
repeatedly exceeded the specific numeric limits, and (2) the State Board ordered the water supplier to
13
cease deliveries as a result of those exceedances. Id. at 671-72, 684-85. If no such “violations” have
14
15 occurred, then liability does not attach. Id. at 671-72, 687-88.
16 III. LEGAL ANALYSIS
17 A. Standard on Demurrer
18 A demurrer may be used to challenge defects that appear on the face of the pleading or from
19 matters outside the pleading that are judicially noticeable. Cal. Civ. Proc. Code §§ 430.10, 430.30(a);
20 Blank v. Kirwan, 39 Cal. 3d 311, 318 (1985); Donabedian v. Mercury Ins. Co., 116 Cal. App. 4th 968,
21 994 (2004). On demurrer, the assumption of truth does not apply to contentions, deductions, or
22 conclusions of law and fact, and any allegations that are contrary to the law are treated as a nullity. C.R.
23 v. Tenet Healthcare Corp., 169 Cal. App. 4th 1094, 1102 (2009). The allegations of the complaint are
24 not accepted as true if they contradict or are inconsistent with facts judicially noticed by the court.
25
4
26 The Court of Appeal rejected vague qualitative allegations such as “impure,” “unwholesome,” “unpotable,”
“polluted,” and “dangerous to health,” in favor of requiring plaintiffs to plead violations of particular numeric
27 limits. In re Groundwater, at 692. Qualitative objectives do not constitute enforceable drinking water standards.
Id. at 679-84. Notably, Plaintiffs in this case rely on nearly identical qualitative objectives as the basis for
28 liability, e.g., “discolored,” “rusty,” “degraded,” “substandard,” “aggressive,” “defective,” “harmful,” “toxic,” and
“contaminated” water. (FAC at 2:12-13, ¶¶ 3(c), 4, 42, 43, 47, 84, 86, 87, 102, 103, 112, 113, 117, 124).
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S
DEMURRER TO FOURTH AMENDED COMPLAINT
1 Cansino v. Bank of America, 224 Cal. App. 4th 1462, 1474 (2014) (rejecting allegation contradicted by
2 judicially noticed facts); Kalnoki v. First American Trustee Servicing Solutions, LLC, 8 Cal. App. 5th
3 23, 38-39 (2017). The court can take judicial notice of the records in the pending action, including
4 admissions or inconsistent statements made by plaintiffs in earlier pleadings or in discovery documents,
5 and may disregard conflicting factual allegations in the complaint. Cal. Evid. Code § 452(d); Del E.
6 Webb Corp. v. Structural Materials Co., 123 Cal. App. 3d 593, 604 (1981).
7 B. Plaintiffs’ Action is Barred as a Matter of Law as Their Sworn Discovery Responses
8 Make Clear Their Claims “Are Not Based On a Violation of Any Numeric Water
9 Quality Standard,” Contrary to the Allegations in the Complaint
10 The Complaint repeatedly alleges that drinking water in Plaintiffs’ and class members’ homes
11 exceeded numeric water quality standards for lead, iron, and other toxic contaminants, as a basis for
12 establishing liability for the alleged corrosive damage to their galvanized plumbing. (See FAC at ¶ 2 at
13 2:27-3:2, 11, 13, 15, 17-24, 47, 50, 84, 86, 92 & 94). Contrary to these allegations, Plaintiffs admitted in
14 sworn discovery responses that their claims are not based on a violation of any numeric drinking water
15 standard. (McMillan Decl., Ex. 7 at SROGs 19 and 20 (“...this is not an action for violations of numeric
16 drinking water standards” and “…Plaintiffs’ Negligence and Nuisance claims are not premised upon the
17 City’s violation of a mandatory duty to comply with a numeric drinking water standard.”); RJN, ¶ 7).
18 Plaintiffs’ counsel has also repeatedly made the same judicial admissions in court filings in this action.
19 (McMillan Decl., Ex. 8; RJN, ¶ 8). These binding admissions directly contradict and are irreconcilable
20 with the allegations in the Complaint.5 Contrary to Plaintiffs’ theory, numeric water quality standards
21 are critical to the State’s ability to carry out its regulatory and enforcement responsibilities. California
22 law is clear that only numeric standards constitute enforceable drinking water standards (In re
23 Groundwater, at 679-84, 91-92), whereas general qualitative objectives (e.g., “discolored,” “rusty,”
24 “degraded,” “substandard,” “aggressive”) and the SDWA’s statements of policy goals and objectives
25
26 5
These admissions also undercut one of the Court’s express findings on the City’s demurrer to the Second Amended
Complaint which allowed Plaintiffs to survive the pleading challenge. (McMillan Decl., Ex. 9; RJN at ¶ 9). At that time, the
27 City challenged Plaintiffs’ allegations on the ground that they failed to satisfy the requisite showing of a judicially-actionable
“violation” within the meaning of Hartwell, 27 Cal. 4th 256 (2002) and In re Groundwater, 154 Cal. App. 4th 659 (2007).
28 Based on Plaintiffs’ allegations, the Court specifically found “[t]he pleading does allege lead levels exceeded the action level
for lead,” and overruled the demurrer as a result. Id. at p. 2, ¶ 1.
6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S
DEMURRER TO FOURTH AMENDED COMPLAINT
1 (e.g., “pure,” “wholesome,” “potable”) are neither enforceable nor do they create mandatory duties. In re
2 Groundwater, at 691-92; Coshow v. City of Escondido, 132 Cal. App. 4th 687, 703 (2005).
3 Plaintiffs’ sworn discovery responses and prior judicial admissions in court filings in this case—
4 which are judicially noticeable—directly contradict the many allegations in the Complaint regarding
5 exceedances of numeric water quality standards as a basis for establishing liability for the alleged
6 corrosive damage at issue. For purposes of demurrer, the Court should not accept as true and should
7 disregard these conflicting allegations regarding adverse health effects of the City’s water supply. Cal.
8 Evid. Code § 452(d); Del E. Webb Corp., 123 Cal. App. 3d at 604; Cansino, 224 Cal. App. 4th at 1474;
9 Kalnoki, 8 Cal. App. 5th at 38-39. Plaintiffs’ reliance on the aesthetic-based secondary MCL for iron,
10 which aims to protect welfare, and the alleged failure to control pH levels in the water (FAC at ¶ 3(b)),
11 which the California SDWA does not regulate as an enforceable drinking water standard (see 22 C.C.R.
12 § 64449(a)), is misplaced for these same reasons. See also § II.G., infra. Thus, Plaintiffs’ claims fail on
13 this basis alone. Cal. Civ. Proc. Code § 430.10(e).
14 By their own admissions, Plaintiffs’ claims fail as a matter of law since they “are not based on a
15 violation of any numeric water quality standard,” despite allegations in the Complaint to the contrary.
16 C. The Complaint Fails to Allege Facts Necessary to Impose Liability Under Plaintiffs’
17 Tort and Contract-Based Claims (Second through Sixth Causes of Action) for the
18 Violation of a Mandatory Duty
19 Plaintiffs’ causes of action for negligence, nuisance, breach of contract, unjust enrichment, and
20 breach of warranty of fitness fail as a matter of law as the Complaint lacks sufficient facts to state such
21 claims. Cal. Civ. Proc. Code § 430.10(e). Pursuant to the Government Claims Act, Cal. Gov’t Code §
22 810, et seq., governmental tort liability must be based on statute; all common law or judicially declared
23 forms of tort liability, except as may be required by the state or federal Constitution, were abolished.
24 Cal. Gov’t Code § 815; Michael J. v. Los Angeles Cnty. Dept. of Adoptions, 201 Cal. App. 3d 859, 866
25 (1988). To establish a prima facie basis for imposing liability against the City, Plaintiffs must satisfy a
26 three-prong test by showing: (1) the enactment in question must impose a mandatory, not discretionary,
27 duty; (2) the enactment must be intended to protect against the kind of risk of injury suffered by
28 plaintiff; and (3) the breach of the mandatory duty must be a proximate cause of the plaintiff’s injury.
7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S
DEMURRER TO FOURTH AMENDED COMPLAINT
1 Cal. Gov’t Code § 815.6; State of California v. Superior Court, 150 Cal. App. 3d 848, 854 (1984); In re
2 Groundwater Cases, 154 Cal. App. 4th 659, 688-89 (2007).
3 First, the Complaint fails to allege a violation of a single provision of the SDWA or the LCR,
4 or any other enactment, intended to protect against the kind of risk of injury allegedly suffered here:
5 property damage to privately-owned galvanized plumbing systems caused by corrosion. (See, e.g.,
6 FAC at 2:1-14, ¶¶ 1-3, 11, 13, 15, 17-24). Nor can Plaintiffs amend their pleading to identify such an
7 enactment since neither the SDWA nor the LCR are intended to protect against that particular type of
8 harm. Although the Complaint does allege violations of primary drinking water standards under the
9 SDWA and LCR which are intended to protect public health (see FAC at ¶¶ 3(b), 66-85),6 Plaintiffs
10 are barred as a matter of law from pursuing such claims since they previously dropped all personal
11 injury claims and damages in this action, including costs of medical surveillance and diagnostic testing
12 related to alleged ongoing and continuous exposure to lead, iron, and other contaminants. (McMillan
13 Decl., Ex. 7 at SROG 41 (“Plaintiffs are not claiming harm from personal injuries due to excess levels
14 of any contaminant….”); Ex. 10 at p. 7 (“This putative class action does not seek recovery for
15 Plaintiffs’ physical injuries as a result of their exposure to the Fresno water supply.”); Ex. 11, Third
16 Am. Compl. at ¶ 3 (striking previous claims for diagnostic testing); see also Ex. 3, Second Am.
17 Compl. at ¶ 3; RJN at ¶¶ 2, 3, 7, 10). Plaintiffs’ sworn discovery responses and prior judicial
18 admissions in court filings in this case directly contradict the many allegations in the Complaint
19 regarding adverse health effects of the City’s water supply. (See, e.g., FAC at ¶¶ 3(d) [“lead and other
20 toxic metals” leach into drinking water], ¶ 4 [“harmful to people”], ¶ 11 [“growing toxicity” and
21 “ongoing exposure to excessive levels of lead and other toxic substances”], ¶¶ 13, 15, 17-24, 43, 52,
22 54(k), 84, 86, 87, 89, 90(e)-(k), 92, 102, 103, 106 & 127).7 Thus, the Court should not accept as true
23 and should disregard these conflicting allegations, as well. Cal. Evid. Code § 452(d); Del E. Webb
24
25
6
In paragraph 67, the allegation that the state and federal SDWAs and LCRs are designed to protect against the harms
26 suffered by Plaintiffs and Class members—“namely the provision of public water that is not pure, wholesome, potable or safe
for public consumption”—is legally incorrect. Words such “pure, wholesome, potable [and] safe” are mere statements of
27 policy goals or objectives under the SDWA, which do not constitute enforceable drinking water standards or create
mandatory duties. In re Groundwater, at 691-92; Coshow v. City of Escondido, 132 Cal. App. 4th 687, 703 (2005).
28 7
These allegations are also the subject of the City’s Motion to Strike certain portions of the Fourth Amended Complaint,
filed concurrently herewith.
8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S
DEMURRER TO FOURTH AMENDED COMPLAINT
1 Corp., 123 Cal. App. 3d at 604; Cansino, 224 Cal. App. 4th at 1474; Kalnoki, 8 Cal. App. 5th at 38-39
2 Plaintiffs’ claims fail on this basis alone. Cal. Civ. Proc. Code § 430.10(e).
3 Second, the Complaint fails to allege facts to establish that the alleged breaches of mandatory
4 testing, notification, and reporting requirements proximately caused corrosion of Plaintiffs’ galvanized
5 pipes, irrespective of the water quality itself. (See FAC at ¶¶ 3(b), 66-85.) Again, Plaintiffs admitted in
6 sworn discovery responses—which are the proper subject of judicial notice—that their claims are not
7 based on a violation of any numeric drinking water standard, and any allegations in the Complaint to
8 the contrary must be disregarded for purposes of demurrer. Cal. Evid. Code § 452(d); Del E. Webb
9 Corp., at 604; Cansino, at 1474; Kalnoki, at 38-39. Based on their sworn admissions in discovery
10 responses, Plaintiffs have not and cannot allege facts necessary to establish the necessary causal link
11 between the alleged violations of mandatory testing, notification, and reporting requirements and
12 corrosion of galvanized pipes. Non-compliance with these alleged mandatory requirements does not, it
13 and of itself, cause corrosion. Only when a public water system exceeds the LCR’s numeric standard
14 for lead (i.e., the 90th percentile lead concentration is above the AL of 0.015 mg/L) is the water
15 potentially corrosive to piping and fixtures that contain lead, which then triggers other requirements
16 within the discretion of the State. 22 C.C.R. § 64674. Thus, Plai
Preview
1 DOUGLAS T. SLOAN, City Attorney CITY OF FRESNO E-FILED 2 By: Francine M. Kanne, Chief Assistant City Attorney (SBN 139028) 10/19/2020 5:27 PM 2600 Fresno Street Superior Court of California 3 Fresno, CA 93721-3602 Telephone: (559) 621-7500 County of Fresno 4 Facsimile: (559) 488-1084 By: A. Ramos, Deputy 5 Jeffery L. Caufield, Esq. (SBN 166524) jeff@caufieldjames.com 6 Matthew D. McMillan, Esq. (SBN 262394) mattm@caufieldjames.com 7 CAUFIELD & JAMES, LLP 2851 Camino Del Rio South, Suite 410 8 San Diego, CA 92108-3843 Telephone: (619) 325-0441 9 Facsimile: (619) 325-0231 Exempt from filing 10 Attorneys for Defendant fee pursuant to THE CITY OF FRESNO Gov’t Code § 6103 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF FRESNO 13 14 ) Lead Case No.: 16CECG02937 KAREN MICHELI, et al., ) Consolidated Case No.: 17CECG01724 15 ) Plaintiffs, ) Assigned for All Purposes to: 16 ) Hon. Judge Rosemary McGuire, Dept. 502 v. ) 17 ) MEMORANDUM OF POINTS AND THE CITY OF FRESNO, et al. ) AUTHORITIES IN SUPPORT OF 18 ) DEFENDANT CITY OF FRESNO’S Defendant. ) DEMURRER TO PLAINTIFFS’ FOURTH 19 ) AMENDED COMPLAINT JACKIE FLANNERY, et al., ) 20 ) Hearing Date: February 23, 2021 Plaintiffs, ) Hearing Time: 3:30 p.m. 21 ) v. ) Lead Action Filed: September 9, 2016 22 ) Consolidated Action Filed: May 17, 2017 THE CITY OF FRESNO, et al. ) 23 ) Trial Date: Not Set Defendant. ) 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO FOURTH AMENDED COMPLAINT 1 TABLE OF CONTENTS 2 3 I. INTRODUCTION ………………………………………………………………….......1 II. FACTUAL BACKGROUND ………………………………………………………….1 4 A. PLAINTIFFS SEEK DAMAGES ALLEGEDLY CAUSED BY CORROSIVE 5 DRINKING WATER SUPPLIED BY THE CITY OF FRESNO ……………..1 6 B. IN CALIFORNIA, THE STATE BOARD MAINTAINS PRIMARY 7 AUTHORITY OVER THE REGULATION AND ENFORCEMENT OF 8 DRINKING WATER STANDARDS ………………………………………….2 9 1.CALIFORNIA ADOPTED THE EPA’S LEGAL STANDARD FOR CORROSIVITY LIMITS UNDER THE LEAD AND COPPER RULE ……3 10 C. HARTWELL AND IN RE GROUNDWATER ESTABLISH THE 11 STANDARD FOR DETERMINING WHEN JUDICIALLY-ACTIONABLE 12 “VIOLATIONS” OCCUR ……………………………………………………..4 13 III. LEGAL ANALYSIS …………………………………………………….......................5 14 A. STANDARD ON DEMURRER ……………………………………………….5 15 B. PLAINTIFFS’ ACTION IS BARRED AS A MATTER OF LAW AS THEIR SWORN DISCOVERY RESPONSES MAKE CLEAR THEIR CLAIMS “ARE 16 NOT BASED ON A VIOLATION OF ANY NUMERIC WATER QUALITY 17 STANDARD,” CONTRARY TO THE ALLEGATIONS IN THE 18 COMPLAINT …………………………………………………………………..6 19 C. THE COMPLAINT FAILS TO ALLEGE FACTS NECESSARY TO IMPOSE 20 LIABILITY UNDER PLAINTIFFS’ TORT AND CONTRACT-BASED 21 CLAIMS (SECOND THROUGH SIXTH CAUSES OF ACTION) FOR THE 22 VIOLATION OF A MANDATORY DUTY …………………………………..7 D. PLAINTIFFS FAIL TO STATE A CLAIM FOR INVERSE 23 CONDEMNATION ……………………………………………………………9 24 E. THE UNJUST ENRICHMENT CLAIM FAILS AS A MATTER OF LAW ..11 25 F. PLAINTIFFS FAILS TO STATE A CLAIM FOR BREACH OF IMPLIED 26 WARRANTY OF FITNESS ………………………………………………….12 27 G. CLASS ACTION ALLEGATIONS ARE LEGALLY WITHOUT MERIT …14 28 H. LEAVE TO AMEND SHOULD BE DENIED ……………………………….15 i 1 IV. CONCLUSION ……………………………………………………………………….15 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii 1 TABLE OF AUTHORITIES 2 CASES 3 American Suzuki Motor Corp. v. Superior Court 4 37 Cal. App. 4th 1291 (1995) ……………………………………………………………13 5 Beckham v. Stockton 64 Cal. App. 2d 487 (1944) …………………………………………………………...….10 6 Blank v. Kirwan 7 39 Cal. 3d 311 (1985) ……………………………………………………………..………5 8 Border Business Park v. San Diego 142 Cal. App. 4th 1538 (2006) …………………………………………………………..10 9 Bridgeford v. Pacific Health Corp. 10 202 Cal. App. 4th 1034 (2012) ……………………………………………………….….14 11 California Medical Ass’n v. Aetna U.S. Healthcare of California 94 Cal. App. 4th 151 (2001) ……………………………………………………………..12 12 Cansino v. Bank of America, 13 224 Cal. App. 4th 1462 (2014) ………………………………………………………6, 7, 9 14 City of Los Angeles v. Superior Court 194 Cal. App. 4th 210 (2011) ……………………………………………………...….9, 10 15 City of San Jose v. Superior Court 16 12 Cal. 3d 447 (1974) …………………………………………………………………....15 17 Coshow v. City of Escondido 132 Cal. App. 4th 687(2005) …………………………………………………………...7, 8 18 C.R. v. Tenet Healthcare Corp. 19 169 Cal. App. 4th 1094 (2009) ……………………………………………………………5 20 Del E. Webb Corp. v. Structural Materials Co. 123 Cal. App. 3d 593 (1981) …………………………………………………..6, 7, 8, 9, 15 21 Dept. of Fish & Game v. Superior Court 22 197 Cal. App. 4th 1323 (2011) ………………………………………………………..…15 23 Donabedian v. Mercury Ins. Co. 116 Cal. App. 4th 968 (2004) …………………………………………………………..…5 24 Durell v. Sharp Healthcare 25 183 Cal. App. 4th 1350 (2010) ………………………………………………………11, 12 26 Evans v. Lasco Bathware, Inc. 178 Cal. App. 4th 1417 (2009) …………………………………………………………..15 27 Glenbrook Dev. Co. v. Brea 28 253 Cal. App. 2d 267 (1967) …………………………………………………………….13 iii 1 Goodman v. Kennedy 18 Cal.3d 335 (1976) …………………………………………………………………….15 2 Harlan v. Roadtrek Motorhomes, Inc. 3 2009 WL 928309, at *8-9 (S.D. Cal. Apr. 2, 2009) …………………………………...…13 4 Hartwell Corp. v. Sup. Ct. (Santamaria) 27 Cal. 4th 256 (2002) ………………………………………………………….....2, 4, 5, 6 5 In re ConAgra Foods, Inc. 6 908 F. Supp. 2d 1090 (C.D. Cal. 2012) ……………………………………………...…..12 7 In re Groundwater Cases 154 Cal. App. 4th 659 (2007) ………………………………………...….2, 4, 5, 6, 7, 8, 15 8 Kalnoki v. First American Trustee Servicing Solutions, LLC 9 8 Cal. App. 5th 23 (2017) ……………………………………………………………6, 7, 9 10 Keith v. Buchanan 173 Cal. App. 3d 13 (1985) ………………………………………………………………14 11 Klein v. Chevron U.S.A., Inc. 12 202 Cal. App. 4th 1342 (2012) ………………………………………………………….11 13 Lance Camper Mfg. Corp. v. Republic Indem. Co. 44 Cal. App. 4th 194 (1996) ……………………………………………………………..11 14 Linder v. Thrifty Oil Co. 15 23 Cal. 4th 429 (2000) …………………………………………………………………...14 16 Los Angeles v. Geiger 94 Cal. App. 2d 180 (1949) ……………………………………………………………....10 17 Mateel Environmental Justice Foundation v. Edmund A. Gray Co. 18 115 Cal. App. 4th 8 (2003) ………………………………………………………………..3 19 McKell v. Washington Mut., Inc. 142 Cal. App. 4th 1457 (2006) …………………………………………………………..11 20 Melchior v. New Line Productions, Inc. 21 106 Cal. App. 4th 779 (2003) ……………………………………………………………11 22 Metowski v. Traid Corp. 28 Cal. App. 3d 332 (1972) ……………………………………………………………....12 23 Michael J. v. Los Angeles Cnty. Dept. of Adoptions 24 201 Cal. App. 3d 859 (1988) ………………………………………………………………7 25 Miller v. Railroad Comm’n of the State of California 9 Cal. 2d 190 (1937) ……………………………………………………………………..12 26 NuCal Foods, Inc. v. Quality Egg LLC 27 918 F. Supp. 2d 1023 (E.D. Cal. 2013) …………………………………………………..13 28 iv 1 Peterson v. Cellco Partnership 164 Cal. App. 4th 1583 (2008) …………………………………………………………..12 2 Richmond v. Shasta Cmty. Servs. Dist. 3 32 Cal. 4th 409 (2004) …………………………………………………………………...11 4 Rutherford Holdings, LLC v. Plaza Del Rey 223 Cal. App. 4th 221 (2014) ……………………………………………………………12 5 State of California v. Superior Court 6 150 Cal. App. 3d 848 (1984) ………………………………………………………….…..8 7 Western States Petroleum Ass’n v. Dept. of Health Services 99 Cal. App. 4th 999 (2002) ……………………………………………………………2, 3 8 Williams v. Moulton Niguel Water Distr. 9 22 Cal. App. 5th 1198 (2018) ……………………………………………..…2, 3, 9, 10, 11 10 11 12 STATUTES & CODES 13 14 Cal. Civ. Proc. Code 15 § 430.10 ………………………………………………………...…………………5, 7, 9 16 Cal. Com. Code 17 § 2315 ……………………………………………………………………………..12, 13 18 19 Cal. Evid. Code 20 § 452(d) ………………………………………………………………………...6, 7, 8, 9 21 22 Cal. Gov’t Code 23 § 810 …………………………………………………………………………………....7 § 815 ……………………………………………………………………………………7 24 § 815.6 ………………………………………………………………………………….8 25 26 Cal. Health & Safety Code 27 § 116270 ………………………………………………………………………….….2, 5 28 § 116271 ………………………………………………………………………………..2 v 1 § 116275 ……………………………………………………………………………..2, 3 2 § 116325 ………………………………………………………………………………..2 3 § 116350 ………………………………………………………………………………..2 § 116365 ………………………………………………………………………………..2 4 § 116370 ………………………………………………………………………………..5 5 6 Cal. Code Regs., tit. 22 7 § 64449 …………………………………………………………………………..3, 7, 14 8 § 64670 ………………………………………………………………………………2, 3 9 § 64674 ………………………………………………………………………………3, 9 § 64678 ……………………………………………………………………...………….3 10 11 40 C.F.R. 12 § 141.80 ………………………………………………………….………………….2 , 3 13 14 42 U.S.C. 15 § 300f ………………………………………………………………………………...2, 5 16 17 18 19 20 21 22 23 24 25 26 27 28 vi 1 I. INTRODUCTION 2 Defendant City of Fresno respectfully requests that the Court sustain the demurrer to all causes 3 of action set forth in Plaintiffs’ Fourth Amended Complaint (“Complaint”). 4 II. FACTUAL BACKGROUND 5 A. Plaintiffs Seek Damages Allegedly Caused By Corrosive Drinking Water Supplied 6 by the City of Fresno 7 In this action, Plaintiffs, on behalf of themselves and putative class members, seek damages 8 against the City for harm they claim to have suffered as a result of “aggressive, corrosive, degraded, and 9 substandard” drinking water the City supposedly supplied to residents from its Northeast Surface Water 10 Treatment Facility (“NESWTF”). (See Declaration of Matthew D. McMillan (“McMillan Decl.”), filed 11 concurrently herewith at ¶ 2, Ex. 1; see also Request for Judicial Notice (“RJN”), filed concurrently 12 herewith at ¶ 1, Fourth Am. Compl. (“FAC”) at p. 2, ll. 1-14). Plaintiffs claim that, beginning in 2004 13 when the City brought the NESWTF online (FAC at ¶ 1), the City failed to properly operate and 14 maintain the NESWTF by introducing surface water to the existing groundwater system “without 15 appropriate treatment to address the changing chemistry and its impact to Fresno’s water supply.” (FAC 16 at ¶ 3(c)). Specifically, Plaintiffs claim the City failed to operate the NESWTF with State-mandated 17 corrosion control treatment, failed to rigorously control the pH levels of its water, and modified its 18 corrosion control treatment without approval from the State Board. (FAC, ¶ 3(b) at 4:4-6).1 They further 19 claim this improper treatment caused the water to become “highly aggressive and corrosive” to the 20 21 privately-owned galvanized steel pipes in residents’ homes (FAC at ¶ 3(c)), which, in turn, caused 22 corrosive damage to the pipes themselves, discolored water inside the homes, and contamination of 23 drinking water with elevated levels of lead, iron, and other toxic contaminants in excess of allowable 24 numerical limits under the SDWA and LCR. (See, e.g., FAC at ¶¶ 2, 11, 13, 15, 17-24, 47, 50, 84, 86, 25 92, & 94). Plaintiffs also claim the City failed to comply with provisions of the federal and state Safe 26 Drinking Water Acts (collectively, the “SDWA”), and water testing, notification, and reporting 27 28 1 Plaintiffs alleged these new facts concerning the City’s purported negligent water treatment practices for the first time in the Fourth Amended Complaint, filed September 17, 2020. See FAC at 4:2-6. 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO FOURTH AMENDED COMPLAINT 1 requirements under the federal and state Lead and Copper Rules, 40 C.F.R. § 141.80, et seq. and 22 2 C.C.R. § 64670, et seq. (collectively, the “LCR”) (FAC at ¶¶ 3(b), 66-85). 3 Plaintiffs seek damages including diminution in value of their properties, the cost of re-plumbing 4 their homes, ongoing exposure to excessive levels of lead and other toxic substances, and interference 5 with the comfortable enjoyment of life and property. (FAC at ¶¶ 3, 11, 13, 15, 17-24, 62, 95-96, & 104). 6 B. In California, the State Board Maintains Primary Authority Over the Regulation 7 and Enforcement of Drinking Water Standards 8 The SDWA establishes a comprehensive regulatory scheme for public water systems in 9 California. Under the statute, the State of California assumed primary authority to implement the 10 federal drinking water regulations enacted by Congress and to set stricter water quality standards than 11 those in the federal law. See 42 U.S.C. § 300f, et seq.; Cal. Health & Safety Code § 116270(f); In re 12 Groundwater Cases, 154 Cal. App. 4th 659, 677-78 & n.13 (2007). The State Water Resources Control 13 Board, Division of Drinking Water, now maintains primary authority over the implementation of these 14 standards. See Cal. Health & Safety Code § 116271. Thus, the Legislature clearly entrusted the 15 regulation and enforcement of the drinking water program to the State Board, which duties the State 16 17 Board must carry out in a manner that most closely matches the legislative intent. Cal. Health & Safety 18 Code §§ 116270, 116325 & 116350; Hartwell Corp. v. Sup. Ct. (Santamaria), 27 Cal. 4th 256, 270 19 (2002); Western States Petroleum Ass’n v. Dept. of Health Services, 99 Cal. App. 4th 999, 1008 (2002). 20 The State Board is responsible for establishing primary and secondary drinking water standards that 21 include numeric contaminant levels, specific treatment techniques, and monitoring and reporting 22 requirements. Cal. Health & Safety Code § 116275(c)-(d); In re Groundwater, at 678, n.14. 23 Primary drinking water standards, including the LCR, are established to protect public health. 24 (See FAC at ¶¶ 70-71, & 84); National Primary Drinking Water Regulations for Lead and Copper, 40 25 C.F.R. §§ 141.80-141.91; § 141.80; see also § 141.80(b) (lead and copper regulations established as a 26 “treatment technique”); Cal. Health & Safety Code §§ 116275(c)(2) & 116365; In re Groundwater, at 27 678-79; Williams v. Moulton Niguel Water Distr., 22 Cal. App. 5th 1198, 1203-04 (2018). Secondary 28 drinking water standards, including the secondary Maximum Contaminant Level (“secondary MCL”) for 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO FOURTH AMENDED COMPLAINT 1 iron (Cal. Code Regs., tit. 22 § 64449(a)), aim to protect public welfare by regulating constituents in 2 water that primarily affect aesthetic qualities, such as taste, odor, and color. Cal. Health & Safety Code § 3 116275(d); Western States Petroleum, 99 Cal. App. 4th at 1005. 4 1. California Adopted the EPA’s Legal Standard for Corrosivity Limits under the 5 Lead and Copper Rule 6 In 1995, California adopted the Lead and Copper Rule and established a protocol for monitoring 7 lead and copper levels in public water systems which mirrors that established by the EPA. See Cal. Code 8 Regs., tit. 22, § 64670 et seq.; Mateel Environmental Justice Foundation v. Edmund A. Gray Co., 115 9 Cal. App. 4th 8, 20-21 (2003). The purpose of the LCR is to protect public health by minimizing lead 10 and copper levels in drinking water, primarily by reducing water corrosivity. 40 C.F.R. §§ 141.80- 11 141.91; Williams, 22 Cal. App. 5th at 1203.2 12 Importantly, in 2006, the State amended the SDWA to eliminate a former secondary drinking 13 water standard for “non-corrosive” water due to lack of clarity in the regulations and lack of a specific 14 procedure for determining compliance. See 22 C.C.R. § 64449; see also McMillan Decl., Ex. 5 at 1361 15 (“Community water system requirements related to corrosivity would be addressed only in the Lead and 16 17 Copper regulations, Chapter 17.5.”); Ex. 6 at p. 2 (“‘Corrosivity’ would be struck because it is 18 thoroughly addressed under the comprehensive monitoring and corrosion control treatment requirements 19 in the Lead and Copper Rule in Chapter 17.5, Title 22.”); RJN at ¶¶ 5-6. In doing so, the California 20 Legislature made clear that the LCR regulations represent the one and only legal standard for 21 determining corrosivity of drinking water in public water systems in California. Id. Thus, allegations of 22 the secondary MCL for iron as a basis for determining water corrosivity fail as a matter of law. 23 24 25 2 To determine the corrosivity of drinking water, the LCR requires routine monitoring at kitchen or bathroom taps of residences and other buildings based on so-called “action levels” established by the EPA. The action level (“AL”) for lead is 26 0.015 mg/L based on the 90th percentile level of tap water samples taken from consumer faucets. Cal. Code Regs., tit. 22, § 64678(d). Accordingly, no more than 10 percent of the samples can be above the AL. Id. If the 90th percentile lead 27 concentration is below the AL, then the water is non-corrosive to piping and fixtures that contain lead.If the 90th percentile lead concentration is above the AL, the water is potentially corrosive to piping, and the AL is triggered. An AL exceedance 28 is not a violation of the LCR (Cal. Code Regs., tit. 22 § 64670(b)), but rather, may trigger other requirements within the discretion of the State. Cal. Code Regs., tit. 22, § 64674. Williams, at 1203-1204. 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO FOURTH AMENDED COMPLAINT 1 C. Hartwell and In Re Groundwater Establish The Standard for Determining When 2 Judicially-Actionable “Violations” Occur 3 Analyzing the legislative intent and policy driving this regulatory scheme, the Courts in Hartwell 4 and In re Groundwater clarified what constitutes enforceable drinking water standards in California. In 5 Hartwell, residents sought damages against multiple water providers for allegedly supplying unhealthy 6 and contaminated water, among other claims. Hartwell, 27 Cal. 4th at 262. The residents alleged water 7 contamination without regard to whether the water met drinking water standards, claiming injury from 8 harmful chemicals that allegedly caused “toxic contamination of drinking water.” Id. at 275-76. 9 In sustaining certain of the water providers’ demurrers attacking these allegations and also 10 barring the residents’ damages claims, the Court reasoned, “An award of damages on the theory that the 11 public utilities provided unhealthy water, even if the water met DHS [State Board] standards, ‘would 12 plainly undermine the commission’s policy by holding the utility liable for not doing what the 13 commission has repeatedly determined that it and all similarly situated utilities were not required to 14 do.’” 3 Id. at 276 [citation omitted] (emphasis added); see also In re Groundwater, at 680 (explaining 15 that such challenges to the adequacy of the agency’s regulatory standards are barred). As noted in 16 17 Hartwell, the water quality “benchmarks” established by the responsible agency, namely numeric 18 contaminant levels (i.e., ALs), allow agencies such as the State Board to perform their regulatory 19 functions. Hartwell, at 276. On remand, the Court of Appeal further explained the responsible agency’s 20 function and authority over drinking water standards: 21 Water quality standards are the product of (DHS) [State Board] study and 22 expertise.” [citation omitted]. Permitting courts and juries to second-guess the carefully considered decisions of the regulatory agencies on technical water 23 quality issues would flout the Legislature’s policy choice to entrust such matters to DHS [State Board] . . . This we will not do. 24 25 26 3 The trial court made clear that the same standard the Hartwell court established for the so-called “PUC 27 Regulated Defendants” also applies to public entity water purveyors like the City. In re Groundwater, at 687 & n.5 (identifying “Public Entity Defendants”). “[T]o constitute a violation of DHS [State Board] standards, 28 Plaintiffs must establish that the PUC Regulated Defendants and the Public Entity Defendants violated the regulatory requirements of the PUC and DHS [State Board].” In re Groundwater, at 671 (emphasis added.) 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO FOURTH AMENDED COMPLAINT 1 In re Groundwater, at 681 (emphasis added); see Cal. Health & Safety Code §§ 116270, 116370; 42 2 U.S.C. § 300f, Congressional Finding (5); 42 U.S.C. §300g-1(b)(3)(A). Numeric limits are therefore 3 critical to the State Board’s ability to carry out its responsibilities. For this reason, the appellate court 4 held that only numerical standards, rather than general qualitative objectives, constitute enforceable 5 drinking water standards. Id. at 679-84.4 6 The Court of Appeal also held that water providers (like the City) could not be held liable for 7 isolated exceedances of numeric standards. Id. at 687 (“Imposing liability on water suppliers for 8 isolated, individual exceedances of MCLs or ALs would be inconsistent with the purpose for which 9 these limits are established.”) An isolated exceedance is merely the starting point for the regulatory 10 process, and thus does not constitute a “violation.” Id. at 672, 685. For purposes of establishing an 11 actionable “violation” under Hartwell, a plaintiff must prove both that: (1) the drinking water in question 12 repeatedly exceeded the specific numeric limits, and (2) the State Board ordered the water supplier to 13 cease deliveries as a result of those exceedances. Id. at 671-72, 684-85. If no such “violations” have 14 15 occurred, then liability does not attach. Id. at 671-72, 687-88. 16 III. LEGAL ANALYSIS 17 A. Standard on Demurrer 18 A demurrer may be used to challenge defects that appear on the face of the pleading or from 19 matters outside the pleading that are judicially noticeable. Cal. Civ. Proc. Code §§ 430.10, 430.30(a); 20 Blank v. Kirwan, 39 Cal. 3d 311, 318 (1985); Donabedian v. Mercury Ins. Co., 116 Cal. App. 4th 968, 21 994 (2004). On demurrer, the assumption of truth does not apply to contentions, deductions, or 22 conclusions of law and fact, and any allegations that are contrary to the law are treated as a nullity. C.R. 23 v. Tenet Healthcare Corp., 169 Cal. App. 4th 1094, 1102 (2009). The allegations of the complaint are 24 not accepted as true if they contradict or are inconsistent with facts judicially noticed by the court. 25 4 26 The Court of Appeal rejected vague qualitative allegations such as “impure,” “unwholesome,” “unpotable,” “polluted,” and “dangerous to health,” in favor of requiring plaintiffs to plead violations of particular numeric 27 limits. In re Groundwater, at 692. Qualitative objectives do not constitute enforceable drinking water standards. Id. at 679-84. Notably, Plaintiffs in this case rely on nearly identical qualitative objectives as the basis for 28 liability, e.g., “discolored,” “rusty,” “degraded,” “substandard,” “aggressive,” “defective,” “harmful,” “toxic,” and “contaminated” water. (FAC at 2:12-13, ¶¶ 3(c), 4, 42, 43, 47, 84, 86, 87, 102, 103, 112, 113, 117, 124). 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO FOURTH AMENDED COMPLAINT 1 Cansino v. Bank of America, 224 Cal. App. 4th 1462, 1474 (2014) (rejecting allegation contradicted by 2 judicially noticed facts); Kalnoki v. First American Trustee Servicing Solutions, LLC, 8 Cal. App. 5th 3 23, 38-39 (2017). The court can take judicial notice of the records in the pending action, including 4 admissions or inconsistent statements made by plaintiffs in earlier pleadings or in discovery documents, 5 and may disregard conflicting factual allegations in the complaint. Cal. Evid. Code § 452(d); Del E. 6 Webb Corp. v. Structural Materials Co., 123 Cal. App. 3d 593, 604 (1981). 7 B. Plaintiffs’ Action is Barred as a Matter of Law as Their Sworn Discovery Responses 8 Make Clear Their Claims “Are Not Based On a Violation of Any Numeric Water 9 Quality Standard,” Contrary to the Allegations in the Complaint 10 The Complaint repeatedly alleges that drinking water in Plaintiffs’ and class members’ homes 11 exceeded numeric water quality standards for lead, iron, and other toxic contaminants, as a basis for 12 establishing liability for the alleged corrosive damage to their galvanized plumbing. (See FAC at ¶ 2 at 13 2:27-3:2, 11, 13, 15, 17-24, 47, 50, 84, 86, 92 & 94). Contrary to these allegations, Plaintiffs admitted in 14 sworn discovery responses that their claims are not based on a violation of any numeric drinking water 15 standard. (McMillan Decl., Ex. 7 at SROGs 19 and 20 (“...this is not an action for violations of numeric 16 drinking water standards” and “…Plaintiffs’ Negligence and Nuisance claims are not premised upon the 17 City’s violation of a mandatory duty to comply with a numeric drinking water standard.”); RJN, ¶ 7). 18 Plaintiffs’ counsel has also repeatedly made the same judicial admissions in court filings in this action. 19 (McMillan Decl., Ex. 8; RJN, ¶ 8). These binding admissions directly contradict and are irreconcilable 20 with the allegations in the Complaint.5 Contrary to Plaintiffs’ theory, numeric water quality standards 21 are critical to the State’s ability to carry out its regulatory and enforcement responsibilities. California 22 law is clear that only numeric standards constitute enforceable drinking water standards (In re 23 Groundwater, at 679-84, 91-92), whereas general qualitative objectives (e.g., “discolored,” “rusty,” 24 “degraded,” “substandard,” “aggressive”) and the SDWA’s statements of policy goals and objectives 25 26 5 These admissions also undercut one of the Court’s express findings on the City’s demurrer to the Second Amended Complaint which allowed Plaintiffs to survive the pleading challenge. (McMillan Decl., Ex. 9; RJN at ¶ 9). At that time, the 27 City challenged Plaintiffs’ allegations on the ground that they failed to satisfy the requisite showing of a judicially-actionable “violation” within the meaning of Hartwell, 27 Cal. 4th 256 (2002) and In re Groundwater, 154 Cal. App. 4th 659 (2007). 28 Based on Plaintiffs’ allegations, the Court specifically found “[t]he pleading does allege lead levels exceeded the action level for lead,” and overruled the demurrer as a result. Id. at p. 2, ¶ 1. 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO FOURTH AMENDED COMPLAINT 1 (e.g., “pure,” “wholesome,” “potable”) are neither enforceable nor do they create mandatory duties. In re 2 Groundwater, at 691-92; Coshow v. City of Escondido, 132 Cal. App. 4th 687, 703 (2005). 3 Plaintiffs’ sworn discovery responses and prior judicial admissions in court filings in this case— 4 which are judicially noticeable—directly contradict the many allegations in the Complaint regarding 5 exceedances of numeric water quality standards as a basis for establishing liability for the alleged 6 corrosive damage at issue. For purposes of demurrer, the Court should not accept as true and should 7 disregard these conflicting allegations regarding adverse health effects of the City’s water supply. Cal. 8 Evid. Code § 452(d); Del E. Webb Corp., 123 Cal. App. 3d at 604; Cansino, 224 Cal. App. 4th at 1474; 9 Kalnoki, 8 Cal. App. 5th at 38-39. Plaintiffs’ reliance on the aesthetic-based secondary MCL for iron, 10 which aims to protect welfare, and the alleged failure to control pH levels in the water (FAC at ¶ 3(b)), 11 which the California SDWA does not regulate as an enforceable drinking water standard (see 22 C.C.R. 12 § 64449(a)), is misplaced for these same reasons. See also § II.G., infra. Thus, Plaintiffs’ claims fail on 13 this basis alone. Cal. Civ. Proc. Code § 430.10(e). 14 By their own admissions, Plaintiffs’ claims fail as a matter of law since they “are not based on a 15 violation of any numeric water quality standard,” despite allegations in the Complaint to the contrary. 16 C. The Complaint Fails to Allege Facts Necessary to Impose Liability Under Plaintiffs’ 17 Tort and Contract-Based Claims (Second through Sixth Causes of Action) for the 18 Violation of a Mandatory Duty 19 Plaintiffs’ causes of action for negligence, nuisance, breach of contract, unjust enrichment, and 20 breach of warranty of fitness fail as a matter of law as the Complaint lacks sufficient facts to state such 21 claims. Cal. Civ. Proc. Code § 430.10(e). Pursuant to the Government Claims Act, Cal. Gov’t Code § 22 810, et seq., governmental tort liability must be based on statute; all common law or judicially declared 23 forms of tort liability, except as may be required by the state or federal Constitution, were abolished. 24 Cal. Gov’t Code § 815; Michael J. v. Los Angeles Cnty. Dept. of Adoptions, 201 Cal. App. 3d 859, 866 25 (1988). To establish a prima facie basis for imposing liability against the City, Plaintiffs must satisfy a 26 three-prong test by showing: (1) the enactment in question must impose a mandatory, not discretionary, 27 duty; (2) the enactment must be intended to protect against the kind of risk of injury suffered by 28 plaintiff; and (3) the breach of the mandatory duty must be a proximate cause of the plaintiff’s injury. 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO FOURTH AMENDED COMPLAINT 1 Cal. Gov’t Code § 815.6; State of California v. Superior Court, 150 Cal. App. 3d 848, 854 (1984); In re 2 Groundwater Cases, 154 Cal. App. 4th 659, 688-89 (2007). 3 First, the Complaint fails to allege a violation of a single provision of the SDWA or the LCR, 4 or any other enactment, intended to protect against the kind of risk of injury allegedly suffered here: 5 property damage to privately-owned galvanized plumbing systems caused by corrosion. (See, e.g., 6 FAC at 2:1-14, ¶¶ 1-3, 11, 13, 15, 17-24). Nor can Plaintiffs amend their pleading to identify such an 7 enactment since neither the SDWA nor the LCR are intended to protect against that particular type of 8 harm. Although the Complaint does allege violations of primary drinking water standards under the 9 SDWA and LCR which are intended to protect public health (see FAC at ¶¶ 3(b), 66-85),6 Plaintiffs 10 are barred as a matter of law from pursuing such claims since they previously dropped all personal 11 injury claims and damages in this action, including costs of medical surveillance and diagnostic testing 12 related to alleged ongoing and continuous exposure to lead, iron, and other contaminants. (McMillan 13 Decl., Ex. 7 at SROG 41 (“Plaintiffs are not claiming harm from personal injuries due to excess levels 14 of any contaminant….”); Ex. 10 at p. 7 (“This putative class action does not seek recovery for 15 Plaintiffs’ physical injuries as a result of their exposure to the Fresno water supply.”); Ex. 11, Third 16 Am. Compl. at ¶ 3 (striking previous claims for diagnostic testing); see also Ex. 3, Second Am. 17 Compl. at ¶ 3; RJN at ¶¶ 2, 3, 7, 10). Plaintiffs’ sworn discovery responses and prior judicial 18 admissions in court filings in this case directly contradict the many allegations in the Complaint 19 regarding adverse health effects of the City’s water supply. (See, e.g., FAC at ¶¶ 3(d) [“lead and other 20 toxic metals” leach into drinking water], ¶ 4 [“harmful to people”], ¶ 11 [“growing toxicity” and 21 “ongoing exposure to excessive levels of lead and other toxic substances”], ¶¶ 13, 15, 17-24, 43, 52, 22 54(k), 84, 86, 87, 89, 90(e)-(k), 92, 102, 103, 106 & 127).7 Thus, the Court should not accept as true 23 and should disregard these conflicting allegations, as well. Cal. Evid. Code § 452(d); Del E. Webb 24 25 6 In paragraph 67, the allegation that the state and federal SDWAs and LCRs are designed to protect against the harms 26 suffered by Plaintiffs and Class members—“namely the provision of public water that is not pure, wholesome, potable or safe for public consumption”—is legally incorrect. Words such “pure, wholesome, potable [and] safe” are mere statements of 27 policy goals or objectives under the SDWA, which do not constitute enforceable drinking water standards or create mandatory duties. In re Groundwater, at 691-92; Coshow v. City of Escondido, 132 Cal. App. 4th 687, 703 (2005). 28 7 These allegations are also the subject of the City’s Motion to Strike certain portions of the Fourth Amended Complaint, filed concurrently herewith. 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO FOURTH AMENDED COMPLAINT 1 Corp., 123 Cal. App. 3d at 604; Cansino, 224 Cal. App. 4th at 1474; Kalnoki, 8 Cal. App. 5th at 38-39 2 Plaintiffs’ claims fail on this basis alone. Cal. Civ. Proc. Code § 430.10(e). 3 Second, the Complaint fails to allege facts to establish that the alleged breaches of mandatory 4 testing, notification, and reporting requirements proximately caused corrosion of Plaintiffs’ galvanized 5 pipes, irrespective of the water quality itself. (See FAC at ¶¶ 3(b), 66-85.) Again, Plaintiffs admitted in 6 sworn discovery responses—which are the proper subject of judicial notice—that their claims are not 7 based on a violation of any numeric drinking water standard, and any allegations in the Complaint to 8 the contrary must be disregarded for purposes of demurrer. Cal. Evid. Code § 452(d); Del E. Webb 9 Corp., at 604; Cansino, at 1474; Kalnoki, at 38-39. Based on their sworn admissions in discovery 10 responses, Plaintiffs have not and cannot allege facts necessary to establish the necessary causal link 11 between the alleged violations of mandatory testing, notification, and reporting requirements and 12 corrosion of galvanized pipes. Non-compliance with these alleged mandatory requirements does not, it 13 and of itself, cause corrosion. Only when a public water system exceeds the LCR’s numeric standard 14 for lead (i.e., the 90th percentile lead concentration is above the AL of 0.015 mg/L) is the water 15 potentially corrosive to piping and fixtures that contain lead, which then triggers other requirements 16 within the discretion of the State. 22 C.C.R. § 64674. Thus, Plai