County Has Mandatory Duty To Review And Respond To Water System Operators’ Water Quality Monitoring Reports And May Be Subject To Claim By Residential Water Consumers For Breach Of Duty

In Guzman v. County of Monterey, (— Cal.Rptr.3d —, 2007 WL 2768999, 07 Cal. Daily Op. Serv. 11,564, Cal.App. 6 Dist., Sept. 25, 2007), a California Court of Appeal considered whether regulations promulgated under California Safe’s Drinking Water Act (SDWA) imposed a mandatory duty on a county to review and respond to water quality monitoring reports submitted by water systems for which the county is responsible. The court held the regulations imposed such a duty, and reversed a trial court order dismissing the plaintiffs’ complaint.

Facts

Plaintiffs are 80 men, women and children who resided at Jensen Camp Mobile Home Park (“Jensen Camp”) from 1995 to 2003, and claim to have been exposed to drinking water with dangerously high levels of naturally occurring fluoride. Plaintiffs sued Rick Pinch (“Pinch”), the owner of Jensen Camp and operator of its water system during the relevant time period, and Monterey County Health Department and the County of Monterey (collectively, “County”) for negligently causing their injuries. Plaintiffs alleged Pinch periodically monitored the drinking water and regularly found unsafe levels of fluoride; that he sent copies of the monitoring reports to County; and that until 2003 County employees neither reviewed the reports nor directed Pinch to notify Plaintiffs that their drinking water was unsafe. Plaintiffs asserted Pinch was not a knowledgeable water system operator and that he depended upon County, which is the “local primacy agency” under the SDWA for direction concerning the operation of the water system. [Health and Saf. Code §§ 116270 et seq.]

Plaintiffs Javier Guzman and Tosha Djirbandee-Ramos are residents of Jensen Camp who purchased it from Pinch in August 2003, but did not become aware of the fluoride problem until after the sale. Upon learning of the contamination, they notified the other tenants and provided bottled water while they investigated repairs to the system. Their lawsuit against Pinch and County alleged the defendants’ negligence, and specifically claimed County had breached a “mandatory duty” within the meaning of Government Code § 815.6. County demurred to Plaintiffs’ complaint, arguing there was no mandatory duty and that it was immune from tort liability for the acts alleged. The trial court agreed with County, and dismissed Plaintiffs’ complaint. Plaintiffs appealed.

Decision

State and county agencies in California generally are immune from liability for negligence and other torts unless such liability is imposed by statute. Government Code § 815.6 imposes such liability, provided that the public entity has a “mandatory duty, imposed by an enactment that is designed to protect against the risk of a particular kind of injury.” If such a mandatory duty – as opposed to a “mere obligation to perform a discretionary function” – is imposed, then a government entity which breaches the duty may be held liable in tort to individuals who have sustained an injury of the kind which the enactment was intended to protect against.

An “enactment” under § 815.6 includes both statutes and regulations. The Court of Appeal found that certain provisions of Title 22 of the California Code of Regulations – current § 64256 and former §§ 64464.1 and 64464.3 – imposed particularized duties on local primacy agencies such as County, and “unquestionably presumed that a local primacy agency would respond to reports of contamination.” The court therefore concluded that those provisions imposed a mandatory duty on County to (1) review water quality monitoring reports from a water system operator; (2) direct the water system operator to notify its customers if the reports revealed contamination; and (3) specify the form and manner in which notification should occur.

The court rejected County’s defense that it had immunity from such lawsuits under a number of other statutory provisions. It found County’s proposed interpretation of such statutes, which effectively would immunize it from liability as to a mandatory duty “would completely eviscerate Government Code section 815.6.”

The court further found that Plaintiffs, as water consumers, clearly were within the class of persons intended to be protected from injury by the SDWA’s regulatory scheme. Plaintiffs’ complaint alleging County’s mandatory duty, causation, and damages, therefore stated an actionable claim against County, and the complaint should not have been dismissed. The Court of Appeal reversed the trial court’s decision and reinstated Plaintiffs’ claim.