Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cynthia A. Newton-Enloe et al v. Mark Horton

April 4, 2011

CYNTHIA A. NEWTON-ENLOE ET AL., PLAINTIFFS AND APPELLANTS,
v.
MARK HORTON, AS DIRECTOR, ETC., ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge. (Super. Ct. No. 09CECG03979)

The opinion of the court was delivered by: Wiseman, Acting P.J.

CERTIFIED FOR PUBLICATION

OPINION

Plaintiffs petitioned the trial court for an order compelling the California Department of Public Health and its director (collectively the Department) to prepare and submit to the Legislature a safe drinking water plan (plan) as required in Health and Safety Code section 116355. The trial court denied the petition. We presume that, in doing so, the trial court concluded that the statutory requirement to prepare and submit the plan had been suspended. We disagree and reverse the judgment. The matter is remanded to enable the trial court to decide, in the first instance, whether the requirements of Code of Civil Procedure section 1085 have been met.

FACTUAL AND PROCEDURAL HISTORIES

Plaintiffs are Cynthia A. Newton-Enloe and an organization called the A.G.U.A. Coalition.*fn1 Plaintiffs filed a verified petition for alternative writ of mandate and writ of mandate on November 17, 2009. They allege that Health and Safety Code section 116355 (section 116355) requires that the Department submit to the Legislature a plan every five years and that no such plan has been completed since 1995. The plaintiffs contend they are intended beneficiaries of the statutory mandate to prepare the plan because they reside or work in communities that are served by public water systems consisting of fewer than 10,000 service connections, and these communities have drinking water that contains contaminants referred to in section 116355. Their petition seeks a writ of mandate commanding the Department to prepare and submit to the Legislature a plan and also to submit to the court a detailed proposal for the completion of the plan, including parameters and a timeline.

The Department filed an answer to the petition asserting several affirmative defenses. Among these was a claim that any mandate to prepare and submit a plan was suspended by the Legislature's decision to discontinue funding its preparation. The Department also filed an opposition to the petition, arguing that any statutory mandate was suspended because specific funding to prepare a plan had been eliminated in 1992 by Assembly Bill No. 3085 (1991-1992 Reg. Sess.) section 1 (AB No. 3085). In reaching this conclusion, the Department relied on Government Code section 11098, which provides that any legislatively mandated publication (like the plan) is suspended "when funding ... is discontinued in the Budget Act ...."

The Department offered declarations from (1) David Spath, Assistant Division Chief of the Drinking Water and Environmental Management Division (Division) from 1993 to 1995 and Chief of the Division from January 1996 to November 2005; (2) Rufus Howell, Acting Chief of the Division from November 2005 to November 2006 and Chief of the Division from November 2006 to February 2008; and (3) Gary H. Yamamoto, then current Chief of the Division.

Each declaration contained identically worded statements regarding the plan and the declarant's belief about the effect of AB No. 3085 on the requirement to prepare a plan. A plan was prepared and submitted to the Legislature in or about January 1993. "Funding for preparation of the report had been provided by the Legislature but was discontinued by the Legislature in 1992 by AB [No.] 3085 and in the Budget Acts subsequently enacted by the Legislature." The declarants also identically stated, "It is my understanding that under Government Code Section 11098, because the Legislature discontinued the funding for the preparation of the report, any mandate to prepare the report was suspended." In addition, the Department took the position that the preparation and submission of the plan was not mandatory and, further, that plaintiffs did not have a beneficial interest in having one prepared.

Plaintiffs argued that the Department failed to demonstrate that Government Code section 11098 applied. They pointed out that the Department did not show that specific funding for the preparation of the plan was provided in any Budget Act prior to 1992 or that funding was discontinued after 1992. Plaintiffs also contended that the Department had a clear ministerial duty to prepare the plan; a lack of resources was not a defense to failing to perform a ministerial duty; and plaintiffs had a beneficial interest in the issuance of a writ.

On February 5, 2010, the trial court heard oral argument. In denying the petition, the court stated, "[Plaintiffs] failed to carry their burden of proof to relief under Code of Civil Procedure § 1085, especially in light of the declarations filed by defendants. The petition for writ of mandate is therefore denied."

DISCUSSION

To obtain a writ, plaintiffs were required to show three elements:

"Code of Civil Procedure section 1085, providing for writs of mandate, is available to compel public agencies to perform acts required by law. [Citation.] To obtain relief, a petitioner must demonstrate (1) no 'plain, speedy, and adequate' alternative remedy exists (Code Civ. Proc., § 1086); (2) 'a clear, present, ... ministerial duty on the part of the respondent'; and (3) a correlative 'clear, present, and beneficial right in the petitioner to the performance of that duty.' [Citations.] A ministerial duty is an obligation to perform a specific act in a manner prescribed by law whenever a given state of facts exists, without regard to any personal judgment as to the propriety of the act. [Citation.]" (People v. Picklesimer (2010) 48 Cal.4th 330, 339-340.)

The Department argued before the trial court that the statutory mandate to prepare and submit a plan was suspended by the Legislature's termination of funding. The court denied the petition, finding that "[plaintiffs] failed to carry their burden of proof to relief under Code of Civil Procedure § 1085, especially in light of the declarations filed by defendants." (Italics added.) As we have already mentioned, the declarations filed by the Department were from three current and former division chiefs who stated that funding for the plan was discontinued by the Legislature and that their understanding was "any mandate to prepare the [plan] was suspended." The declarations did not address any other issues. For example, the division chiefs did not say anything about the possibility of speedy alternative remedies or whether plaintiffs had a beneficial interest in having a plan prepared and submitted. The declarations related only to the Department's claim that the statutory mandate was suspended. We assume the court agreed with that claim and denied the petition for that reason.

To determine whether the Legislature has suspended the requirement to prepare and submit a plan, we review de novo the trial court's implicit statutory interpretations. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.