Guzman v. County of Monterey, H030647.

Decision Date28 October 2009
Docket NumberNo. H030647.,H030647.
Citation178 Cal.App.4th 983,100 Cal. Rptr. 3d 793
CourtCalifornia Court of Appeals Court of Appeals
PartiesJAVIER R. GUZMAN et al., Plaintiffs and Appellants, v. COUNTY OF MONTEREY et al., Defendants and Respondents.

Sullivan Hill Lewin Rez & Engel, Brian L. Burchett; Law Offices of Richard H. Rosenthal, Richard H. Rosenthal; Selden Law Firm, Lynde Selden II for Plaintiffs and Appellants.

Charles J. McKee, County Counsel, and Patrick I. McGreal, Deputy County Counsel, for Defendants and Respondents.

OPINION

PREMO, J.

This matter is before us on remand from the Supreme Court. Plaintiffs were residents of Jensen Camp Mobile Home Park (Jensen Camp) located in the County of Monterey (County). Plaintiffs alleged that Jensen Camp water was contaminated with dangerously high levels of naturally occurring fluoride since at least 1995 but that they were not informed of the contamination until 2003. Plaintiffs sued Rick Pinch, Jensen Camp's owner and water system operator. Plaintiffs also sued County.1 Plaintiff's third cause of action alleged that County was liable under Government Code section 815.6 for breaching mandatory duties imposed by the California Safe Drinking Water Act (Health & Saf. Code, § 116270 et seq.) and its implementing regulations. Plaintiffs pointed out that the regulations required County to have reviewed the reports Pinch submitted between 1995 and 2002, all of which showed that the water was contaminated, and to have reported the violations to the State Department of Health Services (DHS). According to plaintiffs, these duties implied the further duty to direct Pinch to notify them of the contamination.

The trial court sustained County's demurrer to the third cause of action on the ground that Government Code section 815.6 did not impose any actionable mandatory duty. This court reversed the judgment, agreeing with plaintiffs that the regulations imposed an implied mandatory duty to direct Pinch to alert his customers to the elevated fluoride level. The Supreme Court reversed but limited its holding to rejecting the existence of an implied duty "to instruct a water system to notify consumers of water contamination." (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 911 [95 Cal.Rptr.3d 183, 209 P.3d 89] (Guzman).) The Supreme Court remanded the case to this court, directing us to consider whether plaintiffs have alleged any express mandatory duties that would, in and of themselves, give rise to an action under Government Code section 815.6. (Guzman, supra, at p. 911.)

We now conclude that California Code of Regulations, title 22, section 64256, subdivision (e),2 imposes upon County the express mandatory duty to undertake a monthly review of all water quality monitoring data submitted to it in order to detect deviations from specific water quality standards. We further conclude that this duty was designed to protect water consumers like plaintiffs from the type of harm they claim to have suffered. Plaintiffs have adequately alleged a cause of action based upon County's breach of this duty and there is no applicable immunity. Accordingly, we shall reverse the judgment and instruct the trial court to enter a new order, overruling County's demurrer to the third cause of action.

I. Factual and Procedural Background

Under Health and Safety Code section 116325, the DHS is "responsible for ensuring that all public water systems are operated in compliance with [the California Safe Drinking Water Act]." As permitted by Health and Safety Code section 116330, the DHS delegated its primary responsibility for administration and enforcement of the act to County as the "local primacy agency." Thus, at all times relevant, County was responsible for ensuring that the Jensen Camp system was operated in compliance with the law. Among the applicable laws were the regulations issued by the DHS that set maximum contaminant level (MCL) for many substances found in drinking water. (See, e.g., § 64256.) Water system operators were required to monitor their water and report the results to County. (§ 64432.) Whenever a test revealed contaminants in excess of the specified MCL, monitoring and reporting requirements were intensified. (§ 64432, subd. (g).) At all pertinent times, the MCL for fluoride was never more than 2.4 mg/L. (Former § 64431, table 64431-B; § 64431, table 64431-A.) According to plaintiffs, water containing fluoride in excess of the established MCL poses a risk of injury to persons drinking it.

Plaintiffs' third amended complaint alleges that Pinch was not a knowledgeable water system operator. He depended upon County for direction and advice concerning operation of the Jensen Camp water system. Pinch submitted a report to County in November 1995 showing the level of fluoride in the Jensen Camp water to be 7.6 mg/L. Pinch submitted another report in 1999 showing the fluoride level to be 8.5 mg/L. In or about 2001, Pinch submitted one or more consumer confidence reports to County, which reflected the fluoride levels detected in 1995 and 1999.3 Finally, in 2002, Pinch reported a fluoride level of 5.8 mg/L.

Although the reports Pinch submitted between 1995 and 2002 showed that the Jensen Camp water contained levels of fluoride that exceeded the MCL's specified by the regulations, prior to 2002 County employees did not review those reports and did not direct Pinch to do any followup monitoring other than at routine three-year intervals. Further, County did not ensure that Pinch delivered the consumer confidence reports to his customers, did not otherwise direct Pinch to notify his customers that their drinking water was unsafe, and did not report his violations to the DHS. It was not until April 2003 that County imposed a compliance order under which Pinch acknowledged the contamination and agreed to make repairs to the water system. Plaintiffs did not learn of the contamination until after plaintiffs Javier R. Guzman and Tosha F. Djirbandee-Ramos purchased Jensen Camp from Pinch in or about August 2003.

In plaintiffs' third amended complaint, the third and fourth causes of action were directed against County. (The action against Pinch is not at issue here.) The third cause of action was for negligence under Government Code section 815.6. The fourth cause of action alleged negligence under a special-relationship theory. Plaintiffs alleged that, due to County's negligence, they unknowingly consumed contaminated drinking water from at least November 1995, "resulting in pain and suffering and in injuries to their bodies and nervous systems, skeletal structures and other injuries not yet identified." The trial court sustained County's demurrer to both causes of action, without leave to amend. Plaintiffs have challenged only the ruling on the Government Code claim.

II. Legal Framework

"On appeal from a dismissal entered after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the petition states a cause of action as a matter of law." (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869 .) "We deem to be true all material facts that were properly pled. [Citation.] We must also accept as true those facts that may be implied or inferred from those expressly alleged. [Citation.] We may also consider matters that may be judicially noticed, but do not accept contentions, deductions or conclusions of fact or law." (Id. at pp. 869-870.) "We independently construe statutory law, as its interpretation is a question of law on which we are not bound by the trial court's analysis." (Id. at p. 870.)

(1) It is settled that public entities such as County are not liable in tort except as provided by statute. (Gov. Code, § 810 et seq.; Guzman, supra, 46 Cal.4th at p. 897.) One such statute is Government Code section 815.6, which provides: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." Guzman, supra, 46 Cal.4th at pages 898-900, describes the requirements of this section in detail. (2) Briefly, there are three elements to a cause of action under Government Code section 815.6. First, the enactment at issue must be obligatory, not merely discretionary or permissive in its directions to the public entity. (Guzman, supra, at p. 898.) Typically, an enactment imposing a mandatory duty also includes specific rules and guidelines for implementation. Second, the duty imposed must be designed to protect against the particular kind of injury the plaintiff suffered. "We examine the `language, function and apparent purpose' of each cited enactment `to determine if any or each creates a mandatory duty designed to protect against' the injury allegedly suffered by [the] plaintiff." (Ibid.) The requirement is not satisfied if the enactment merely confers some incidental benefit upon the class to which the plaintiff belongs. The third and final requirement is that the breach of the duty must have been a proximate cause of the plaintiff's injury. (Ibid.)

(3) "`Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts.'" (Guzman, supra, 46 Cal.4th at p. 898.) As in any negligence action, causation is usually a question of fact for the jury. (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1189 .)

III. Discussion
A. Mandatory Duty
1. Particular Obligation

The California Safe Drinking Water Act and its implementing regulations are comprehensive and detailed. (Guzman, supra, 46 Cal.4th at p. 901.) Particularly pertinent here are sections 64431 and 64432, which are...

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