Coshow v. City of Escondido, D045382.

Citation34 Cal.Rptr.3d 19,132 Cal.App.4th 687
Decision Date17 August 2005
Docket NumberNo. D045382.,D045382.
PartiesPaul COSHOW et al., Plaintiffs and Appellants, v. CITY OF ESCONDIDO et al., Defendants and Respondents.
CourtCalifornia Court of Appeals

HALLER, J.

Paul Coshow and several other residents of Escondido, California1 (collectively Coshow) sued the City of Escondido (City) and California Department of Health Services (Department) for declaratory and injunctive relief, challenging the City's plan to fluoridate its drinking water with hydrofluorosilicic acid (HFSA) and claiming the use of HFSA violates their constitutional rights and exposes the general public to unnecessary health risks. The court granted judgment on the pleadings in favor of City and Department after finding Coshow failed to state a cause of action for declaratory or injunctive relief.

Coshow appeals, contending: (1) the court erred by granting judgment on the pleadings based on motions in limine filed by City and Department; (2) he had standing to challenge City's unconstitutional conduct and its impermissible expenditure of public funds under Code of Civil Procedure sections 1060 and 526a; (3) his fourth amended complaint alleged violations of fundamental constitutional rights to privacy and bodily integrity under the federal and state Constitutions; (4) the court erred by refusing to consider allegations that HFSA is a drug which the Federal Drug Administration (FDA) has not approved for the prevention of dental caries; (5) the court erred by refusing to consider allegations that use of HFSA to fluoridate City's drinking water violates Penal Code section 374.8; and (6) the court's factual findings are unsupported by the evidence and were improperly applied to grant judgment on the pleadings.

Accepting, as we must, the truth of the allegations of Coshow's complaint, we conclude Coshow cannot state a cause of action for violations of fundamental constitutional rights or a violation of Penal Code section 374.8. Accordingly, we affirm the judgment.2

FACTUAL AND PROCEDURAL BACKGROUND

City operates a community water system serving about 130,000 people through nearly 25,000 service connections. In June 2001, City directed its staff to implement a fluoridation plan in compliance with the California Safe Drinking Water Act (SDWA) (Health & Saf.Code,3 § 116270 et seq.), which requires fluoridation of each public water system having at least 10,000 service connections. (§ 116410, subd. (a).)

In September 2001, Coshow filed a complaint for declaratory relief, alleging City's plan to fluoridate its water was unconstitutional and illegal because mass fluoridation of the water supply presents a reasonable certainty of harm to City's residents, including permanent dental scarring, genetic damage, cancer and other ailments. In a first amended complaint filed in December 2001, Coshow alleged a single cause of action for declaratory relief against City, challenging the constitutionality of fluoridating City's water supply and seeking a judicial determination as to whether City's decision to implement a fluoridation plan was constitutionally permissible. City demurred to the first amended complaint and the court sustained the demurrer with leave to amend.

Coshow filed a second amended complaint in April 2002, adding the State of California as a defendant and seeking declaratory and injunctive relief as to the constitutionality of City's decision to fluoridate its drinking water. The court overruled City's demurrer in part and sustained it in part with leave to amend.

In September 2002, Coshow filed a third amended complaint against City and the State of California, this time challenging the constitutionality of City's use of HFSA to fluoridate its water supply and alleging City violated his fundamental right "to preserve [his] health from such government-imposed practices as may prejudice or annoy it." City answered the complaint and the State of California demurred. Based on Coshow's representation he was not making a facial challenge to the legislation mandating the fluoridation of City's drinking water, the court overruled the demurrer in part and sustained it in part, giving Coshow leave to amend to name the proper state agency involved, to clarify the nature of his claim against that entity and to specify the particular legislation involved.

In October 2002, City submitted an application to Department to amend City's domestic water supply permit to begin fluoridation. While this lawsuit was pending, Department approved City's application. Department determined City's plan, including use of HFSA, complied with requirements of all applicable state drinking water laws and regulations.

In January 2003, Coshow filed a fourth amended complaint, the relevant pleading here, again challenging the constitutionality of using contaminated, industrial-grade HFSA to fluoridate City's public water supply. As to City, Coshow sought a declaration that: (1) the implementation of City's fluoridation plan to use contaminated HFSA, without his informed consent, violates his fundamental rights under the state and federal Constitutions to be free from such government-imposed practices as may prejudice or annoy his health; and (2) the fluoride implementation contracts signed by City are illegal and void because they violate his constitutional rights. Coshow further alleged City's fluoridation plan violates Penal Code section 374.8 and is an illegal expenditure of public funds, warranting injunctive relief. As to Department, Coshow alleged its conduct in requiring, approving and permitting City to fluoridate its water with contaminated HFSA is illegal under Penal Code section 374.8 and unconstitutional as applied to the facts of this case.

City and Department filed motions for summary adjudication of claims and summary judgment, primarily arguing City's fluoridation plan complied fully with the SDWA and its implementing regulations and thus, no triable issue of fact existed as to Coshow's claims. In his opposition, Coshow abandoned his earlier claim the City's plan would result in an excessive concentration of fluoride in the drinking water and instead claimed HFSA is hazardous waste because it contains trace levels of lead and arsenic, thereby making City's fluoridation plan illegal and harmful to the public health, and unconstitutional as an infringement of bodily integrity. The court denied City's and Department's motions.

The parties then filed trial briefs and pre-trial motions, including numerous motions in limine. The court ruled on the parties' motions in limine, heard argument on Coshow's constitutional allegations and continued the trial. After receiving additional briefing on the constitutional issues, the court: (1) excluded evidence concerning Coshow's allegations that HFSA has not been approved by the FDA; (2) found the fourth amended complaint did not allege a claim under article I, section 1 of the California Constitution for violation of the right to privacy; and (3) denied Coshow's request for leave to amend. The court also found the only potential theories of constitutional liability were the alleged substantive due process violations as to "conduct which impacts a fundamental right (here, the right to be free from the introduction of an allegedly toxic substance, HFSA, into the municipal drinking water, i.e., toxic for reasons other than [ ] merely containing fluoride). . . ."

Following that ruling, Coshow sought an order setting a hearing to address the state of trial evidence. Coshow attached exhibits, including copies of Department's final approval of City's application for a permit amendment to begin fluoridation, the permit amendment and Department's engineering report on City's application.

The parties filed additional motions in limine as to the remaining constitutional issues, including City's motion to dismiss Coshow's constitutional claims and Department's motion to dismiss any claims under Penal Code section 374.8. The court issued an order construing City's and Department's motions as a motion for judgment on the pleadings and concluded as a matter of law that Coshow failed to state causes of action for declaratory or injunctive relief.

DISCUSSION
I The Court Properly Treated Motions in Limine as a Motion for Judgment on the Pleadings

Coshow contends the court erred by granting judgment on the pleadings based on motions in limine filed by City and Department. He asserts Code of Civil Procedure section 1008 was the exclusive vehicle for reconsideration of issues previously decided on demurrer and summary judgment and there is no authority for the "irregular" procedure used here to obtain a dismissal of his claims through a motion in limine.

A court's inherent powers to control litigation and conserve judicial resources authorize it to conduct hearings and formulate rules of procedure as justice may require. (Walker v. Superior Court (1991) 53 Cal.3d 257, 267-268, 279 Cal.Rptr. 576, 807 P.2d 418; Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377, 5 Cal.Rptr.2d 882.) Exercising these powers, the court may enter judgment in favor of a defendant when motions in limine show that, "`. . . even if the plaintiff's allegations were proved, they would not establish a cause of action.'" (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 285, 54 Cal.Rptr.2d 655; see also Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66...

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