People ex rel. Lungren v. Superior Court

• Decision Date: 09 December 1996
• Docket Number: No. S047833,S047833
• Citation: 14 Cal.4th 294,926 P.2d 1042,58 Cal.Rptr.2d 855
• Court: California Supreme Court
• Parties: , 926 P.2d 1042, 43 ERC 1773, 65 USLW 2392, 96 Cal. Daily Op. Serv. 8856, 96 Daily Journal D.A.R. 14,686 The PEOPLE ex rel. Daniel E. LUNGREN, as Attorney General, etc., Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; AMERICAN STANDARD, INC. et al., Real Parties in Interest.

Page 855

58 Cal.Rptr.2d 855

14 Cal.4th 294, 926 P.2d 1042, 43 ERC 1773, 65 USLW 2392,

96 Cal. Daily Op. Serv. 8856,

96 Daily Journal D.A.R. 14,686

The PEOPLE ex rel. Daniel E. LUNGREN, as Attorney General, etc., Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent;

AMERICAN STANDARD, INC. et al., Real Parties in Interest.

No. S047833.

Supreme Court of California.

Dec. 9, 1996.

Rehearing Denied Feb. 5, 1997.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Theodora P. Berger, Assistant Attorney General, Craig C. Thompson and Edward G. Weil, Deputy Attorneys General, for Petitioner.

Roger Beers, Oakland, Gregory D. Totten, Ventura, Edwin F. Lowry, Sacramento, David Roe, Oakland, Catherine M. Steane, Albert H. Meyerhoff, San Francisco, James R. Wheaton, Oakland, Hannah Bentley, San Francisco, Alice Chang Kaufman, Christine A. Mailloux, Washington, DC, Altshuler, Berzon, Nussbaum, Berzon & Rubin, Fred H. Altshuler, Mary Lynne Werlwas, San Francisco, Milberg, Weiss, Bershad, Hynes & Lerach, William S. Lerach, Alan M. Mansfield, Frank J. Janecek, Jr., Timothy G. Blood, San Diego, Bushnell, Caplan & Fielding, Alan M. Caplan, Philip Neumark, San Francisco, and April M. Strauss, as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Landels, Ripley & Diamond, Raymond F. Lynch, Mary J. Decker, Pillsbury, Madison & Sutro, Patrick C. Marshall, Munger, Tolles & Olson, Patrick J. Cafferty, McCutchen, Doyle, Brown & Enersen, Pecos Bill Field, Burditt & Radzius, Richard O. Wood, Leslie Krasny, Morrison & Foerster, Michele B. Corash, Robin M. Shapiro, Robert L. Falk, Beveridge & Diamond, James L. Meeder, Robert D. Wyatt, San Francisco, Wilson, Elser, Moskowitz, Edelman & Dicker, Gary Tavetian, L. Victor Bilger, Jr., Katten, Muchin, Zavis & Weitzman and David M. Bass, Los Angeles, for Real Parties in Interest.

Pappy & Davis, George A. Pappy, Burbank, Christopher M. Micheli, Fred L. Main, Sacramento, Keck, Mahin & Cate, Michael J. Van Zandt, Stephen M. Levine, William G. Ives, Robin Grover, Washington, DC, Morrison & Foerster, Seth Hufstedler and Shirley M. Hufstedler, Los Angeles, as Amici Curiae on behalf of Real Parties in Interest.

MOSK, Justice.

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf.Code, §§ 25249.5-25249.13), ¹ adopted by the people at the November 4, 1986, General Election as Proposition 65 (hereinafter referred to as the Act or Proposition 65), provides in material part that "[n]o 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...." (§ 25249.5.) This case requires us to define what is meant by the phrase "source of drinking water." The Attorney General, who brought this action to enforce the Act, contends that the phrase includes the water that is stored in or run through water faucets, and so defendant faucet manufacturers, whose products allegedly leach toxic chemicals into drinking water, may be sued for violations of the Act. The faucet manufacturers contend the contrary.

We conclude that, in light of both the Act's language and its purpose, the Attorney General is correct in construing it to prohibit the discharge of toxic chemicals into faucet water. ²

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

The Attorney General filed an action in superior court seeking injunctive relief and civil penalties against defendants, 16 manufacturers and distributors of drinking water faucets sold and used in California. The Attorney General alleged that the faucets they manufactured contained significant quantities of lead, which is among the substances listed by the state as known to cause cancer and reproductive toxicity within the meaning of the Act. (See § 25249.8; Cal.Code Regs., tit. 22, § 12000, subds. (b), (c).) The Attorney General further alleged that "[w]hen residential tapwater is stored in defendants' faucets, lead is leached from the inside surface of the faucets into the drinking water. When tapwater is drawn from defendants' faucets, lead is ingested by any person who ingests drinking water...." He also alleged that "[T]he fact that lead leaches from faucets into tapwater has been known for a number of years." Defendants have thereby violated section 25249.5 according to the Attorney General.

Defendants demurred to the first and second causes of action, ³ arguing that faucet water was not a "source of drinking water" within the meaning of the statute and that the Attorney General had therefore failed to allege facts constituting a cause of action. The trial court sustained the demurrer to the first two causes of action, determining that "residential water faucets and the water within them are not 'sources of drinking water.' " Although the trial court sustained the demurrer with leave to amend, the Attorney General concluded it was not possible to amend the complaint within the constraints of the trial court's order. He instead sought a writ of mandate from the Court of Appeal. The Court of Appeal denied relief, concluding, for reasons discussed at greater length below, that the language of the statute could not support the Attorney General's view that the water within household faucets is a "source of drinking water." It further reasoned that, inasmuch as that term was ambiguous, the ambiguity should be resolved in favor of the defendants, since violators of the Act may be subject to civil penalties of up to $2,500 per day for each violation (see § 25249.7, subd. (b)), and "penal" statutes are traditionally construed strictly in favor of the defendant. We granted review to determine the proper construction of the phrase "source of drinking water." ⁴

In the time since we granted review, the Attorney General has entered into a settlement agreement, which provided for the dismissal of all defendants. Most of these settlements provide, among other things, that defendants will eventually sell in California only those faucets that leach lead below maximum levels set pursuant to the Act, and that compliance will be phased in over specified time periods. In the interim, warnings to consumers will be provided for those faucets that do not comply with the Act. The settlement with defendants Kohler and Sterling Plumbing Inc. (hereafter collectively Kohler), however, provides that Kohler will reduce lead content to levels that comply with the Act in 95 percent of its kitchen faucets by December 31, 1999, but that the companies will achieve 100 percent compliance if we decide this case in the Attorney General's favor.

After conclusion of the settlement agreement Kohler filed a motion to dismiss, claiming that the issue was moot and without further legal importance. But as Kohler conceded, there are an undetermined number of other faucet manufacturers and plumbing suppliers which may yet be affected by our decision. Because of the continuing legal importance of the questions on which we granted review, as well as the contingent nature of some of the settlements entered into by the parties, we denied the motion to dismiss. (See State of Cal. ex rel. State Lands Com. v. Superior Court (1995) 11 Cal.4th 50, 60-62, 44 Cal.Rptr.2d 399, 900 P.2d 648.)

II. DOES "SOURCE OF DRINKING WATER" INCLUDE FAUCET WATER?R?

"Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action. Accordingly we assume that the complaint's properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context. [Citations.] We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law." (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.) In the present case there is no dispute that lead is a carcinogenic and reproductively toxic chemical within the meaning of the Act. (See Cal.Code Regs., tit. 22, § 12000, subds. (b), (c).) The sole question the parties raise is the proper construction of section 25249.5, specifically the meaning of the term "source of drinking water," and whether it includes household faucets and faucet water.

We begin our inquiry into the meaning of the phrase "source of drinking water" with an examination of the language of the Act itself. "Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure [citation] and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language." (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 543, 277 Cal.Rptr. 1, 802 P.2d 317.) Of course, in construing the statute, "[t]he words ... must be read in context, considering the nature and purpose of the statutory enactment." (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 378-379, 33 Cal.Rptr.2d 63, 878 P.2d 1275.)

The Act defines "source of drinking water" at section 25249.11, subdivision (d), as follows: " 'Source of drinking water' means either a present source of drinking water or water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses." Though this language does not fully resolve the issue before us, it does do much to illuminate the meaning of the phrase.

The latter part of the definition is reasonably clear. It refers to regional water quality control plans, which are required under the Porter-Cologne Water Quality Control Act. (Wat.Code, § 13000 et seq. (Porter-Cologne Act).) Pursuant to the Porter-Cologne Act, the state is divided into nine regions. (Id., § 13200.) Each region has a regional water quality control board...