Ct.App. 6 H030647 Monterey County Super. Ct. No. M71543. Monterey Judge: Kay T. Kingsley.
The opinion of the court was delivered by: Chin, J.
This case involves the state‟s Safe Drinking Water Act (Health & Saf. Code, § 116270 et seq.) and its implementing regulations. Plaintiffs are approximately 80 men, women, and children who resided at the Jensen Camp Mobile Home Park (Jensen Camp) in Monterey County (County) between 1995 and 2003. Plaintiffs claim that since at least 1995, the drinking water at Jensen Camp was contaminated with high levels of naturally occurring fluoride, but that residents were not told of the contamination until 2003. They brought an action against Rick Pinch, Jensen Camp‟s owner and the operator of its water system, and against the County and the County‟s Department of Health, which were responsible for overseeing the public water systems in their jurisdiction.*fn1 Plaintiffs alleged that the County negligently failed to perform certain duties under the Safe Drinking Water Act and regulations, the performance of which they claim would have prevented them from drinking the contaminated water. Among other things, plaintiffs maintained that the County had the duty to review and to respond to the water system‟s monitoring reports, which necessarily implied that the County would direct Pinch to notify the residents of any reported water contamination. The Court of Appeal here held that the County had an implied mandatory duty to direct Pinch to give such notification to residents, which mandatory duty subjected the public entity to liability under Government Code section 815.6.
For reasons that follow, we disagree. Although the County oversees the water systems within its jurisdiction, it does not have the primary responsibility to notify consumers of any contaminated water. This duty rests squarely with the operator of the water system (hereafter, water system or water system operator). As discussed in greater detail below, in order to impose a mandatory duty on a public entity (see Gov. Code, § 815.6), " "the mandatory nature of the duty must be phrased in explicit and forceful language‟ " (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 689 (Groundwater Cases), and the statute "must impose a duty on the specific public entity sought to be held liable" (Forbes v. County of San Bernardino (2002) 101 Cal.App.4th 48, 54 (Forbes)).
We reverse the Court of Appeal‟s judgment, which reversed the trial court‟s order sustaining the County‟s demurrer without leave to amend and the resulting judgment of dismissal. However, as we shall further explain, the Court of Appeal on remand should determine whether plaintiffs have alleged any express mandatory duties that would, in and of themselves, give rise to an action against the County under Government Code section 815.6.
FACTUAL AND PROCEDURAL BACKGROUND
We rely largely on the Court of Appeal‟s statement of facts. (Cal. Rules of Court, rule 8.500(c)(2).) As that court explained, " "On appeal from dismissal following a sustained demurrer, we take as true all well-pleaded factual allegations of the complaint.‟ (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 495 (Haggis).)" Plaintiffs‟ third amended complaint alleged the following facts.
From November 1995 through August 2003, defendant Pinch owned Jensen Camp, which contained approximately 25 spaces for mobile homes. He also operated the public water system that provided drinking water to Jensen Camp‟s residents. As discussed in greater detail below, plaintiffs allege that the County was responsible for ensuring that public water systems in its jurisdiction, like the one at Jensen Camp, were operated in compliance with the law. Plaintiffs maintain that Pinch, who was not knowledgeable as a water system operator, relied on the County for information and direction in managing the Jensen Camp water system.
Under the Safe Drinking Water Act and its implementing regulations, Pinch was required to monitor the water quality at Jensen Camp and to notify the County and the water consumers whenever certain inorganic chemicals in the water, like fluoride, exceeded a specified maximum contaminant level (MCL). (Health & Saf. Code, § 116275, subd. (f) [defining MCL].) The MCL for fluoride is 2.0 milligrams per liter (mg/L). (Cal. Code Regs., tit. 22, ch. 15, § 64431.) Water containing fluoride in excess of the MCL poses a risk of injury to persons drinking it.
Pinch periodically monitored the water quality at Jensen Camp. The monitoring reports indicated that in 1995, the level of fluoride in the water was 7.6 mg/L; in 1999, it was 8.5 mg/L; and in 2002, it was 5.8 mg/L. Therefore, each of the water monitoring reports showed that the water at Jensen Camp greatly exceeded the allowable MCL for fluoride. The County received copies of these monitoring reports. However, prior to 2003, it did not review the reports and did not direct Pinch to notify plaintiffs that their drinking water was unsafe. In April 2003, the County imposed a compliance order under which Pinch acknowledged the fluoride contamination and agreed to make necessary repairs to the water system.
In or about August 2003, plaintiffs Javier R. Guzman and Tosha F. Djirbandee-Ramos, who were residents of Jensen Camp at the time, purchased the camp from Pinch. They did not become aware of the fluoride contamination until after the sale. Once the new owners learned of the contamination, they notified the other residents and provided bottled water while they investigated repairs to the water system.
Plaintiffs filed the instant lawsuit against Pinch and the County. In their third amended complaint (the relevant pleading here), plaintiffs alleged two negligence causes of action against the County.*fn2 Claiming that the County had breached a mandatory duty under Government Code section 815.6, plaintiffs cited the following statutes in support of this negligence claim: Health and Safety Code section 116325, and sections 64256, 64257, 64432, 64480, and former section 64464.3 of title 22 of the California Code of Regulations.*fn3
As discussed in greater detail below, plaintiffs‟ third cause of action against the County alleged that under these "enactments" (Gov. Code, § 815.6), the County had a mandatory duty to: (1) review Pinch‟s water quality monitoring reports and establish a system to assure that data submitted by water suppliers be reviewed for compliance (§ 64256, subd. (e)); (2) notify Pinch of his monitoring requirements under section 64432 (§ 64256, subd. (a)); (3) report water quality violations to the state Department of Health Services*fn4 (§ 64257); (4) review "consumer confidence reports" and ensure that Pinch delivered such reports to the Jensen Camp residents (§ 64480); and (5) ensure that Pinch complied with the Safe Drinking Water Act and that he notified Jensen Camp residents of the contaminated water (Health & Saf. Code, § 116325; former § 64464.3). The trial court sustained, without leave to amend, the County‟s demurrer to the third cause of action, and subsequently dismissed the County from the action. Plaintiffs appealed.
Agreeing with plaintiffs in part,*fn5 the Court of Appeal held that the County, as the local primacy agency, had the implied mandatory duty to instruct the water system operator to notify consumers of any water contamination. To reach this holding, the Court of Appeal concluded the County had mandatory duties to notify the water system of its monitoring and reporting requirements, to review monitoring reports monthly, and to report compliance violations to the Department. (§ 64256, subds. (a) & (e); § 64257, subd. (a).) While recognizing that Pinch, as the water system operator, had the direct duty to notify consumers of any water contamination (see former § 64464.3, subd. (a)(1)), the Court of Appeal concluded that "[t]he system described in former section[s] 64464.1 and 64464.3[*fn6 ] unquestionably presumed that the local primacy agency would respond to reports of contamination and direct the water system to notify the persons served and to specify the manner in which notification was to be given." It stopped short of holding that the County "had a mandatory duty to ensure that the notice was given or that it was given in any particular manner." In addition, the Court of Appeal concluded that these mandatory duties were intended to protect against the physical and emotional injuries plaintiffs claimed to have suffered, and that plaintiffs sufficiently pled a causal link between the mandatory duty and the injury alleged to withstand the demurrer. Finally, the Court of Appeal rejected the County‟s claim that it was immune from liability under Government Code sections 818.2, 818.4, 820.4, 820.8, 821, and 821.2.
A. Government Code section 815.6
Under the Government Claims Act (Gov. Code, § 810 et seq.), there is no common law tort liability for public entities in California; instead, such liability must be based on statute. (Gov. Code, § 815, subd. (a) ["Except as otherwise provided by statute: [¶] A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity . . . ."]; Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899; see Williams v. Horvath (1976) 16 Cal.3d 834, 838 ["intent of the act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances"].) 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." (See Haggis v. City of Los Angeles, supra, 22 Cal.4th at p. 498 (Haggis).) A private cause of action lies against a public entity only if the underlying enactment sets forth the elements of liability set out in section 815.6. (Haggis, supra, 22 Cal.4th at pp. 499-500; see Gov. Code, § 810.6 [" "[e]nactment‟ " defined as "constitutional provision, statute, charter provision, ordinance or regulation"].)
The elements of liability under Government Code section 815.6 are as follows: "First and foremost, application of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion. [Citation.]" (Haggis, supra, 22 Cal.4th at p. 498.) Courts have construed this first prong rather strictly, finding a mandatory duty only if the enactment "affirmatively imposes the duty and provides implementing guidelines." (O'Toole v. Superior Court (2006) 140 Cal.App.4th 488, 510 (O'Toole); Clausing v. San Francisco Unified ...