Mateel Environmental v. Edmund A. Gray Co.

• Decision Date: 22 December 2003
• Docket Number: No. A100075.,No. A100279.,A100075.,A100279.
• Citation: 115 Cal.App.4th 8,9 Cal.Rptr.3d 486
• Court: California Court of Appeals Court of Appeals
• Parties: MATEEL ENVIRONMENTAL JUSTICE FOUNDATION, Plaintiff and Appellant, v. EDMUND A. GRAY CO., et al., Defendants and Respondents.

9 Cal.Rptr.3d 486

115 Cal.App.4th 8

MATEEL ENVIRONMENTAL JUSTICE FOUNDATION, Plaintiff and Appellant, v. EDMUND A. GRAY CO., et al., Defendants and Respondents.

No. A100075.

No. A100279.

Court of Appeal, First District, Division 5.

December 22, 2003.

As Modified January 21 and 23, 2004.

Klamath Environmental Law Center, William Verick, Eureka, and David H. Williams, Berkeley, Public Interest Lawyers Group, David Williams and Fredric Evenson, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Richard M. Frank and Theodora Berger, Assistant Attorneys General, Craig C. Thompson and Edward G. Weil, Deputy Attorneys General, for People of the State of California ex rel. Bill Lockyer, Attorney General as Amicus Curiae on Behalf of Plaintiff and Appellant.

McKenna Long & Aldridge LLP, Ann G. Grimaldi, Stanley W. Landfair and Eric S.C. Lindstrom, San Francisco, for Defendant and Respondent Edmund A. Gray Company.

Stanzler Funderburk & Castellon LLP, Ruben A. Castellon and Shane C. Stafford, San Francisco, for Defendant and Respondent Grinnell Corporation.

McDonough, Holland & Allen, John R. Briggs, Sacramento, for Defendant and Respondent Thrifty Supply Company.

McQuaid, Metzler, Bedford & Van Zandt, LLP, Neil R. Bardack and Michael J. Van Zandt, San Francisco, for Mueller Industries, Inc., Legend Valve & Fitting, Inc., Kitz Corporation of America, Milwaukee Valve Company, Inc., John M. Frey Company, Inc., Smith-Cooper International and LDR Industries, Inc., as Amicus Curiae on Behalf of Defendants and Respondents.

GEMELLO, J.

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf.Code, §§ 25249.5-25249.13), adopted by vote of the people at the November 1986 election as Proposition 65, regulates the discharge of specific toxins into California's drinking water. A Proposition 65 plaintiff alleging an unlawful discharge bears the burden of proving that a discharge has in fact occurred. Regulations adopted pursuant to Proposition 65 establish a hierarchy of four "tiers" of tests that may be used to measure whether a listed toxin has been discharged. The regulations provide that a discharge occurs if the toxin is detectable using a test from the highest available tier.

In this case, plaintiff alleged that plumbing parts distributed by defendants discharge lead into drinking water. On a motion for summary judgment, defendants asserted that a Tier 1 test for lead in drinking water exists, the trial court agreed that a Tier 1 test exists, and the trial court granted summary judgment because plaintiff had not performed a Tier 1 test. We disagree with the trial court's conclusion that the test put forward by the defendants is a Tier 1 test. Consequently, we reverse the judgment for defendants and remand for the trial court to consider whether the tests plaintiffs actually performed qualify under any of the tiers provided by Proposition 65's regulations.

FACTUAL AND PROCEDURAL BACKGROUND¹

Defendants Edmund A. Gray Co., Grinnell Corporation, and Thrifty Supply Company (collectively Plumbing Distributors) are distributors of galvanized plumbing parts in California. Galvanization is a process in which steel is dipped in a hot zinc bath. As the zinc cools, it forms a thin coating. The zinc coating protects against rust and corrosion. However, according to an expert for plaintiff Mateel Environmental Justice Foundation (Mateel), when lead is present in a galvanizing bath, it moves to the surface of the zinc coating as the zinc cools. Consequently, the galvanized steel may have small islands of lead on its surface.

Mateel sued five plumbing distributors. It contended in its first two causes of action that the distributors had violated the discharge and warning provisions of Proposition 65 by selling plumbing parts that discharge lead into drinking water and by failing to warn consumers of this exposure. In a third cause of action, Mateel alleged that these Proposition 65 violations were unlawful business practices under the Unfair Competition Law (UCL) (Bus. & Prof.Code, § 17200 et seq.).

The trial court trifurcated the case. The first stage was confined to determining whether Mateel could prove that a discharge of lead had occurred. Shortly before the first-stage trial, the Plumbing Distributors filed separate motions for summary adjudication of plaintiff's various claims. With respect to the two pure Proposition 65 claims, the trial court granted summary adjudication after it determined that Mateel had failed to serve legally sufficient 60-day notices of the alleged violations before filing suit. (Health & Saf.Code, § 25249.7.) Those claims are no longer at issue. The trial court allowed the derivative UCL claim to proceed, concluding that Proposition 65's presuit notice requirements did not apply.

With respect to the UCL discharge claim, the Plumbing Distributors argued that Mateel had no evidence their products discharged lead. In particular, they argued that under California Code of Regulations, title 22, section 12901 (Regulation 12901), Mateel was required to show the existence of lead discharged from defendants' products by means of a state-approved methodology, if one existed. According to the Plumbing Distributors, such a test existed: the Lead and Copper Rule (Cal.Code Regs., tit. 22, § 64670 et seq.).² Mateel responded by submitting seven tests of its own, each purporting to show that defendants' products discharged lead into drinking water. Mateel argued that it was not required by Regulation 12901 to employ a state-approved methodology if one existed, that its tests were sufficient to show a discharge, and that, in any event, the Lead and Copper Rule was not a state-approved methodology for detecting lead discharged from individual plumbing parts.

The trial court agreed with the Plumbing Distributors on all issues. It concluded that as a matter of law a state-approved methodology had to be employed if one existed, that the Lead and Copper Rule was such a methodology, that Mateel failed to submit evidence that lead had been detected using the Lead and Copper Rule, and thus that the Plumbing Distributors were entitled to summary judgment.

Mateel has timely appealed, challenging only the ruling on its UCL discharge claim. On appeal, we granted the Attorney General leave to file an amicus curiae brief and appear at oral argument.

DISCUSSION

I. Summary Judgment

A "motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary adjudication of a cause of action must show either that one or more elements of the cause of action cannot be established or that there is a complete defense. "[A]ll that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.... [T]he defendant need not himself conclusively negate any such element...." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) If that burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); see Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467, 110 Cal.Rptr.2d 627.)

We review a summary judgment motion de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Galanty v. Paul Revere Life Ins. Co. (2000) 23 Cal.4th 368, 374, 97 Cal.Rptr.2d 67, 1 P.3d 658; Code Civ. Proc., § 437c, subd. (c).) We are not bound by the trial court's stated reasons or rationales. (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878, 116 Cal.Rptr.2d 158.) "In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment." (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1079, 72 Cal.Rptr.2d 121.) Thus, we independently determine the construction and effect of the facts presented to the trial judge as a matter of law. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1515, 285 Cal.Rptr. 385.) Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party. (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112, 54 Cal.Rptr.2d 669; WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1709, 50 Cal.Rptr.2d 323.)

With these principles in mind, we consider the propriety of the summary judgment entered by the trial court.

II. Proposition 65

Proposition 65 was designed, in pertinent part, to regulate the discharge or release of cancer-causing chemicals (carcinogens) and reproductive toxins (teratogens) into drinking water. (Health & Saf.Code, §§ 25249.5-25249.13;³ People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 298, 58 Cal.Rptr.2d 855, 926 P.2d 1042.) Under section 25249.5, the discharge prohibition, "No person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water, notwithstanding any other provision or authorization of law except as provided in Section 25249.9." Section 25249.8 requires the state to publish and update annually a list of these known carcinogens and teratogens. Lead is a listed carcinogen and teratogen. (Regs., § 12000, subd. (b), (c).) It is known to harm sperm formation, impair ovulation, and affect fetal development.⁴

Section 25249.9 sets out several affirmative defenses. Of relevance here, "Section 25249.5...