Supreme Court of California Justia
Citation 46 Cal. 4th 887, 209 P.3d 89, 95 Cal. Rptr. 3d 183

Guzman v. County of Monterey

Filed 6/22/09

IN THE SUPREME COURT OF CALIFORNIA

JAVIER R. GUZMAN et al.,
Plaintiffs and Appellants,
S157793
v.
Ct.App. 6 H030647
COUNTY OF MONTEREY et al.,
Monterey County
Defendants and Respondents. )
Super. Ct. No. M71543

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.1

1
The County and its Department of Health were not treated as separate
entities below. Like the Court of Appeal below, we refer to the entities
collectively as the County.
1



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.
2
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
3
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.2 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.3

2
One of plaintiffs‟ negligence claims against the County, which alleges a
“special relationship” between plaintiffs and the County, is not at issue in this
appeal. Plaintiffs‟ claims against Pinch are pending in the superior court, and are
also not at issue here.

3
Unless otherwise noted, all further section references are to title 22 of the
California Code of Regulations.

4



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 Services4 (§ 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,5 the Court of Appeal held that the County,
as the local primacy agency, had the implied mandatory duty to instruct the water

4
As of July 1, 2007, the “duties, powers, functions, jurisdiction, and
responsibilities” of the former state Department of Health Services were
transferred to the state Department of Public Health. (Health & Saf. Code, §
131051, subd. (a)(5); see id., § 116270, subd. (g).) We shall refer to the
responsible state entity as the “Department.”

5
Plaintiffs do not challenge the Court of Appeal‟s holding that Health and
Safety Code section 116325, and sections 64480, 64432, and former section
64464.3 (at least not explicitly) do not impose any particular mandatory duty on
the County because “[n]one of these enactments is directed to the primacy
agency . . . .” Nor do plaintiffs challenge the Court of Appeal‟s conclusion that
section 64256, subdivision (e) in part does not impose a mandatory duty because it
does not specify the type of system a local primacy agency must establish. As
such, we do not discuss them here.

5


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[6]
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.
We granted review.

6
Former sections 64464.1 and 64464.3, which were adopted in 1992 but
repealed in 2006, were operative at all times relevant here. (See Register 92, No.
22 (May 29, 1992).) The current notification regulations are set out in article 18,
title 22 of the California Code of Regulations, titled “Notification of Water
Consumers and the Department.” (See, e.g., §§ 64463 [“General Public
Notification Requirements”], 64463.1 [“Tier 1 Public Notice”], 64463.4 [“Tier 2
Public Notice”], 64463.7 [“Tier 3 Public Notice”], 64465 [“Public Notice Content
and Format”].)
6


DISCUSSION
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,
7
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 School Dist. (1990) 221 Cal.App.3d 1224, 1240 (Clausing) [“If rules and
guidelines for the implementation of an alleged mandatory duty are not set forth in
an otherwise prohibitory statute, it cannot create a mandatory duty”].)
“Second, but equally important, section 815.6 requires that the mandatory
duty be „designed‟ to protect against the particular kind of injury the plaintiff
suffered. The plaintiff must show the injury is „ “one of the consequences which
the [enacting body] sought to prevent through imposing the alleged mandatory
duty.” ‟ [Citation.] Our inquiry in this regard goes to the legislative purpose of
imposing the duty. That the enactment „confers some benefit‟ on the class to
which plaintiff belongs is not enough; if the benefit is „incidental‟ to the
enactment‟s protective purpose, the enactment cannot serve as a predicate for
liability under section 815.6. [Citation.]” (Haggis, supra, 22 Cal.4th at p. 499;
see also Evid. Code, § 669, subd. (a)(1) [rebuttable presumption of negligence
based on violation of statute, ordinance or regulation of public entity].) If these
two prongs are met, the next question is whether the breach of the duty was a
proximate cause of the plaintiff‟s injury. (See Groundwater Cases, supra, 154
Cal.App.4th at p. 689; Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th
1450, 1458.)
“Whether a particular statute is intended to impose a mandatory duty, rather
than a mere obligation to perform a discretionary function, is a question of
statutory interpretation for the courts.” (Creason v. Department of Health Services
8
(1998) 18 Cal.4th 623, 631 (Creason); see Manriquez v. Gourley (2003) 105
Cal.App.4th 1227, 1234-1235 [same rules of statutory construction govern
interpretation of regulations by administrative agencies].) We examine the
“language, function and apparent purpose” of each cited enactment “to determine
if any or each creates a mandatory duty designed to protect against” the injury
allegedly suffered by plaintiff. (Haggis, supra, 22 Cal.4th at p. 500.) At the
outset, we recognize that the term “shall” is defined as “mandatory” for purposes
of the Health and Safety Code. (Health & Saf. Code, § 16; see also Gov. Code, §
14.) However, as we have emphasized, this term‟s inclusion in an enactment does
not necessarily create a mandatory duty; there may be “other factors [that] indicate
that apparent obligatory language was not intended to foreclose a governmental
entity‟s or officer‟s exercise of discretion.” (Morris v. County of Marin (1977) 18
Cal.3d 901, 910, fn. 6 (Morris); Haggis, supra, 22 Cal.4th at p. 499, citing
Morris.)
While a public entity‟s exercise of discretion may often mark the dividing
line between a duty that is mandatory and one that is not (Haggis, supra, 22
Cal.4th at p. 498), that line is sometimes difficult to draw. (See Johnson v. State
of California (1968) 69 Cal.2d 782, 788-789 (Johnson) [rejecting semantic and
literal definitions of “discretion” and adopting rule based on policy
considerations];7 see also Creason, supra, 18 Cal.4th at pp. 631-633 [holding

7
Although our decision in Johnson, supra, 69 Cal.2d 782, concerned the
statutory immunity for a public employee‟s “discretionary” acts (Gov. Code, §
820.2), we recognized that such cases as Johnson “obviously are instructive in
determining whether „mandatory acts‟ liability should be imposed.” (Creason,
supra, 18 Cal.4th at p. 633 [applying Johnson‟s distinction between “planning”
and “operational” levels of decisionmaking to determine if duty is mandatory
under Gov. Code, § 815.6]; cf. Barner v. Leeds (2000) 24 Cal.4th 676, 685, fn. 2
[rejecting criticism of Johnson based on stare decisis].)
9


Dept. of Health Services had substantial discretion to formulate and report
appropriate testing standards for hypothyroidism].) In Creason, we had little
difficulty concluding that “[t]he drafting of rules, regulations and standards by the
governmental agency charged with that responsibility would unquestionably fall in
the category of discretionary „basic policy decisions‟ for which governmental
agencies usually are insulated from civil liability.” (Creason, supra, 18 Cal.4th at
p. 633, citing Johnson, supra, 69 Cal.2d at pp. 793-794.) However, in cases not
involving a public entity‟s “ „quasi-legislative policy-making‟ ” (Creason, supra,
18 Cal.4th at p. 633), the inquiry should focus on whether the entity must “render
a considered decision” (Johnson, supra, 69 Cal.2d at p. 795, fn. 8), one requiring
its expertise and judgment. (Haggis, supra, 22 Cal.4th at pp. 506-507; but see
Morris, supra, 18 Cal.3d at p. 905 [“the county enjoyed no discretion to ignore the
dictates of Labor Code section 3800”].)
For instance, in Haggis, which involved local ordinances on property
development in landslide zones, one ordinance at issue required the City of Los
Angeles “first, to determine the location and boundaries of the areas requiring
affidavits, and, second, to decide whether the instability of a given property is of
such magnitude as to cause an immediate hazard to the occupancy of the proposed
development.” (Haggis, supra, 22 Cal.4th at p. 506.) Recognizing the
“pervasively discretionary nature” of the city‟s authority, we held that the
ordinance, as a whole, “provides the City with such significant discretion in
whether to issue or withhold permits as to make Government Code section 815.6
inapplicable.” (Ibid.) We similarly concluded that another ordinance, which
called on “the judgment, expertise and discretion of the City‟s staff to evaluate”
whether the slope stabilization was “ „satisfactorily demonstrated‟ ” under the
ordinance, also did not create a mandatory duty. (Id. at p. 507; see also Braman v.
State of California (1994) 28 Cal.App.4th 344, 351 (Braman) [“very essence of
10
discretion is the power to make „comparisons, choices, judgments, and
evaluations‟ ”]; de Villers v. County of San Diego (2007) 156 Cal.App.4th 238,
261 [no mandatory duty where “the predicate enactment confers on government
officials the discretion to evaluate and decide how best to implement the required
security”]; cf. Ortega v. Sacramento County Dept. of Health & Human Serv.
(2008) 161 Cal.App.4th 713, 733 [Gov. Code § 820.2, “the collection and
evaluation of information is an integral part of „the exercise of the discretion‟ ”].)
Before we address the specific provisions of the Safe Drinking Water Act
and regulations at issue here, it is helpful to have a basic framework of the
statutory scheme as it relates to this case.
B. The Safe Drinking Water Act
The Legislature enacted the Safe Drinking Water Act (Act) in part to
“ensure that the water delivered by public water systems of this state shall at all
times be pure, wholesome, and potable.” (Health & Saf. Code, § 116270, subd.
(e) [legislative findings and declaration].)8 To achieve the goals of the Act, the
Legislature established a drinking water regulatory program within the
Department. (Health & Saf. Code, § 116270, subd. (g); see ante, at p. 5, fn. 4.)
Among other things, the Department has the responsibility to “adopt
primary drinking water standards for contaminants in drinking water” (Health &
Saf. Code, § 116365, subd. (a)), which standards include MCL‟s, specific
treatment techniques, and monitoring and reporting requirements specified by the
Department. (Id., § 116275, subd. (c)(1)-(3) [defining “ „[p]rimary drinking water

8
This legislative objective itself, however, does not create a mandatory duty
within the meaning of Government Code section 815.6. (Groundwater Cases,
supra, 154 Cal.App.4th at pp. 691-692 [collecting cases].)

11


standards‟ ”]; see Groundwater Cases, supra, 154 Cal.App.4th at p. 678.) The
Department must also “adopt regulations it determines to be necessary to carry out
the purposes of the chapter.” (Health & Saf. Code, § 116375; id., § 116375,
subds. (a)-(j) [inclusive list of types of regulations].) The Act and its
implementing regulations are comprehensive and detailed. (See Hartwell Corp. v.
Superior Court (2002) 27 Cal.4th 256, 268-269 [describing general statutory
scheme under the Act]; see also Coshow v. City of Escondido (2005) 132
Cal.App.4th 687, 704 [same]; City of Watsonville v. State Dept. of Health Services
(2005) 133 Cal.App.4th 875, 887 [“Pursuant to its legislative mandate,
[Department] has developed comprehensive drinking water standards, which
include standards for fluoride”].)
As relevant here, the County is a local primacy agency (see Health & Saf.
Code, § 116275, subd. (r)), that assumed the Department‟s role in administering
and enforcing the Act for designated public water systems in its jurisdiction.9

9
Under a local primacy delegation agreement, the Department “may delegate
primary responsibility for the administration and enforcement of this chapter
within a county to a local health officer” designated as a local primacy agency.
(Health & Saf. Code, § 116330, subd. (a); id., § 116330, subd. (f) [“local primacy
agency . . . empowered with all of the authority granted to the department by this
chapter over those water systems”].) The Department, however, does not
“relinquish its authority, but rather shall retain jurisdiction to administer and
enforce this chapter for the designated water systems to the extent determined
necessary by the department.” (Id., § 116330, subd. (a).)

The Department has delegated primacy to local primacy agencies in 35 of
the 58 counties to regulate public water systems serving fewer than 200
connections. (Dept., Small Water Systems: Technical Support Unit (Apr. 2008
update) available online at http://www.cdph.ca.gov/certlic/drinkingwater/pages/
smallwatersystems.aspx [as of June 22, 2009].) The Department‟s Web site
indicates that these local primacy agencies regulate approximately “1,600
community water systems and 3,900 non-community water systems.” (Ibid.)
There are approximately “7,500 public water systems” in the state. (Dept.,

(footnote continued on next page)
12


Pinch was the operator of one such system at Jensen Camp.10 For purposes of this
appeal, any duties imposed under the Act and implementing regulations (along
with any liability resulting from any breach thereof), are identical for the
Department and for the County. Only the County‟s duties are at issue here, and
we focus on them.11
C. Does the County Have an Implied Duty to Direct a Water System
Operator to Notify Consumers of Water Contamination?
As the Court of Appeal noted and the parties agree, the express duty to
notify consumers of any water contamination rests on the operator of the water
system, not the local primacy agency. (Former § 64464.3, subd. (a)(1) [“water
supplier shall notify the [local primacy agency] and the persons served by the
water system”].) There is no mandatory duty imposed on a public entity if the
specified enactment is inapplicable to that entity. (Hoff v. Vacaville Unified Sch.

(footnote continued from previous page)

Drinking Water Program (June 2009 update) available online at
http://www.cdph.ca.gov/programs/pages/dwp.aspx [as of June 22, 2009].)

10
The Act and applicable regulations contain varying references to the public
water system. (See Health & Saf. Code, § 116275, subd. (h) [defining “public
water system”]; id., subd. (i) [defining “community water system” as a type of
public water system]; id., subd. (aa) [defining “small community water system”]; §
64402.20 [“water supplier,” “person operating a public water system,” and
“supplier of water” used interchangeably to mean “any person who owns or
operates a public water system”]; id., § 64400.10 [defining “community water
system”].) Neither party asserts that the distinction among the terms, if any,
makes any difference to the issue here.

11
As relevant here, the references to the “Department,” “local primacy
agency,” or “local health officer” in the applicable statutes and regulations are all
to the County unless otherwise noted. (See Health & Saf. Code, §§ 116275, subd.
(r), 116330; see also §§ 64251, subd. (a)(2), 64252.)
13


Dist. (1998) 19 Cal.4th 925, 939 [“By its terms, Education Code section 44807
requires only „teacher[s]‟ to hold pupils to strict account for their conduct; it does
not purport to impose a mandatory duty more broadly on any public entity”];
Forbes, supra, 101 Cal.App.4th at p. 54.)
However, the Court of Appeal held that the County had an implied
mandatory duty to direct a water system operator to notify consumers of any
contamination. This implied duty is at the heart of plaintiffs‟ action. To reach this
holding, the court made several conclusions about the County‟s various mandatory
duties as a local primacy agency. (See §§ 64256, 64257; former §§ 64464.1,
64464.3; see ante, at p. 6.) It held that the County had an express duty to notify
Pinch of his water monitoring and reporting requirements (§ 64256, subd. (a)),
which assertedly included his duty to notify his customers that the water was
contaminated. It also concluded that the County had the express duty to review a
system‟s water quality reports (§ 64256, subd. (e)), and to report compliance
violations to the Department (§ 64257, subd. (a)), and that this duty “presumes that
the primacy agency will evaluate the reports to identify violations.” Finally, the
court held that the notification regulations (former §§ 64464.1, 64464.3)
“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 the notification was to be given.”
Urging us to adopt the Court of Appeal‟s reasoning, plaintiffs maintain that
case law and public policy considerations support their claim that an implied
mandatory duty exists here. (See Alejo v. City of Alhambra (1999) 75 Cal.App.4th
1180 (Alejo); Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84
Cal.App.4th 605 (Rankin); Braman, supra, 28 Cal.App.4th 344.) As we explain
further below, the Court of Appeal‟s holding rests largely on its erroneous
interpretation of several regulations, which assertedly imposed certain duties. We
14
conclude that the cited regulations do not individually or collectively impose an
implied mandatory duty on the County to direct Pinch to notify consumers when
water contamination occurs.
We discuss each underlying duty in turn, beginning with the language of
each enactment. (Haggis, supra, 22 Cal.4th at p. 499.)
1. Duty to Notify Water System of Monitoring and Reporting
Requirements (§ 64256, subd. (a))
Section 64256 is directed to the local primacy agency: “The local primacy
agency shall notify each small water system under its jurisdiction in writing of the
monitoring requirements for that system pursuant to Title 22, Division 4, Chapters
15, 17, and 17.5 of the California Code of Regulations.[12] The notice shall identify
the specific contaminants to be monitored, the type of laboratory analyses required
for each contaminant, the frequency of sampling and any other sampling and
reporting requirements applicable to that system.” (§ 64256, subd. (a).)
The regulation‟s language clearly provides that the County shall give the
water system written notice of the system‟s monitoring, sampling, and reporting
requirements; it makes no reference to any notification requirements, such as those
contained in former sections 64464.1 and 64464.3. While plaintiffs use the terms
“report” and “notify” interchangeably, those terms are used distinctively under the
Act and the regulations. (See Health & Saf. Code, § 116375, subds. (a), (f) [Dept.
shall adopt regulations for “[t]he monitoring of contaminants, including the type of
contaminant, frequency and method of sampling and testing, and the reporting of

12
Chapter 15, titled “Domestic Water Quality and Monitoring Regulations,”
currently covers sections 64400 through 64483, which include the regulatory
provisions at issue here. Chapter 17 (§§ 64650-64666), which is titled “Surface
Water Treatment,” and Chapter 17.5 (§§ 64670-64692), which is titled “Lead and
Copper,” are not relevant here.
15


results,” and “[r]equirements for notifying the public of the quality of the water
delivered to consumers” (italics added)]; Cal. Code Regs., tit. 22, ch. 15, art. 18
[Notification of Water Consumers and the Department (italics added)]; id., art. 19
[Records, Reporting and Recordkeeping (italics added)]; id., art. 4.1, § 64433.7
[Recordkeeping, Reporting, and Notification for Water Systems Fluoridating
(italics added)].) Thus, contrary to plaintiffs‟ assertion, section 64256, subdivision
(a), does not impose any duty on the County to inform Pinch of his notification
duties under former section 64464.3.
Moreover, even assuming that section 64256, subdivision (a), does refer to
a water system operator‟s notification requirements, the issue here is not whether
the County failed to inform Pinch of such requirements generally, that is, that he
had an ongoing obligation to notify the Department (or the local primacy agency
here) and the water consumers “whenever . . . [t]he water supplied to the
consumers . . . exceeds the maximum contaminant levels for inorganic chemicals.”
(Former § 64464.3, subd. (a)(1); see also Health & Saf. Code, § 116450, subd. (a)
[Act‟s corresponding notification provision].) Rather, plaintiffs claim that the
County failed to direct Pinch to notify the Jensen Camp residents of specific
instances of water contamination in 1995 and 1999. To address this claim, we
focus on sections 64256, subdivision (e), and 64257, subdivision (a), which, in
part, the Court of Appeal found implied such a duty.
2. Duty to Review Water System’s Monitoring Reports and to Report
Compliance Violations (§§ 64256, subd. (e), 64257, subd. (a))
Section 64256, subdivision (e), provides in pertinent part: “The monitoring
reports shall be reviewed [by the local primacy agency] each month for each small
water system and the data entered into the data management system at least
monthly.” Section 64257, as relevant here, provides that the local primacy agency
16
“shall . . . submit[]” to the Department monthly reports summarizing a water
system‟s compliance violations. (§ 64257, subd. (a).)
Based on these regulations, the Court of Appeal found that the County had
mandatory duties to review a water system‟s monitoring reports and to report
compliance violations to the Department. These duties, the court went on,
necessarily presumed that the County would evaluate the reports to identify any
violations. Relying on the reasoning in Alejo, supra, 75 Cal.App.4th 1180, the
court held that the County had an implied duty to direct Pinch to notify consumers
of any contamination. It added that a contrary interpretation “would defeat the
purpose of the law, which is „to ensure that the water delivered by public water
systems of this state shall at all times be pure, wholesome, and potable,‟ (Health &
Saf. Code, § 116270, subd. (e)).”
We disagree with the Court of Appeal‟s reasoning, which plaintiffs urge us
to adopt. Even assuming that any duty to review these reports (§ 64256, subd. (e))
and to report compliance violations to the Department (§ 64257, subd. (a)) would
indicate that the County will respond to accounts of water contamination, it does
not inevitably follow that the County‟s response would be to instruct the water
system to notify affected consumers, particularly when the system is already under
an express duty to do so (see ante, at p. 13). (See Brenneman v. State of
California (1989) 208 Cal.App.3d 812, 818 [a mandatory duty to investigate is not
a mandatory duty to take action].) Alejo does not compel a contrary conclusion.
In Alejo, the enactment at issue (Pen. Code, former § 11166, subd. (a))
provided that an employee of a child protective agency (such as the police
department) “shall report” any known or reasonably suspected instances of child
abuse. (Alejo, supra, 75 Cal.App.4th at pp. 1185-1186.) Relying on the statutory
language, prior cases, and public policy considerations, the Alejo Court of Appeal
found this enactment imposed two mandatory duties on a police officer who
17
receives an account of child abuse — the duty to investigate and the duty to file a
report of child abuse when an objectively reasonable person in the same situation
would suspect abuse. (Alejo, supra, 75 Cal.App.4th at pp. 1186-1188.) Although
Penal Code former section 11166, subdivision (a), did not include the term
“investigate,” the Court of Appeal found such an implied duty because it
concluded the enactment “clearly envisions some investigation in order for an
officer to determine whether there is reasonable suspicion to support the child
abuse allegation and to trigger a report to the county welfare department and the
district attorney under section 11166, subdivision (i), and to the Department of
Justice under section 11169, subdivision (a).” (Alejo, supra, 75 Cal.App.4th at p.
1186.) This latter section required the child protective agency to forward to the
Department of Justice a written report of “every case it investigates of known or
suspected child abuse which is determined not to be unfounded,” and proscribed
the agency from forwarding a report “unless it has conducted an active
investigation and determined that the report is not unfounded.” (Pen. Code,
former § 11169, subd. (a), quoted in Alejo, supra, 75 Cal.App.4th at p. 1186.) As
the statutory scheme clearly contemplated, the officer‟s express duty to report was
necessarily predicated on the officer first investigating the accounts of child abuse.
(See Nunn v. California (1984) 35 Cal.3d 616, 625 [harmonizing parts of
enactment “by considering the particular clause in the context of the whole
statute”].)
In contrast to Alejo, plaintiffs here have identified no enactment in which
an express duty is necessarily predicated or dependent on a county directing a
water system to notify consumers of contaminated water.13 Contrary to plaintiffs‟

13
Moreover, Rankin, supra, 84 Cal.App.4th 605, and Braman, supra, 28
Cal.App.4th 344, are distinguishable and do not support imposing an implied

(footnote continued on next page)
18


contention, section 64256, subdivision (a), is not such an enactment because as we
have explained (see ante, at pp. 15-16), it does not require the County to inform a
water system of its notification requirements. Plaintiffs question then, what is the
purpose of the County reviewing a water system‟s monitoring reports if not to

(footnote continued from previous page)

mandatory duty in this case. In Rankin, the Court of Appeal held that even though
Code of Civil Procedure section 995.310‟s “plain language . . . [did] not per se
impose a duty on” the city to ensure that a surety providing a bond on one of its
public works projects is one of three categories of insurers, the court imposed such
a duty. (Rankin, supra, 84 Cal.App.4th at p. 621.) Reading this statute in
conjunction with statutes requiring a payment bond as a condition of being
awarded a contract by a public entity (Civ. Code, §§ 3247, 3248), the Court of
Appeal found that these statutes together imposed a duty on the city to make sure
that the payment bond surety is an admitted surety insurer. “As the public entity is
the one required to approve the subject bond, it stands to reason that the public
entity must be the one to require compliance with Code of Civil Procedure section
995.310. Any other interpretation would render the provision meaningless.”
(Rankin, supra, 84 Cal.App.4th at p. 621.) In Rankin, the city alone had the duty
to ensure that its public works projects were properly bonded; thus, it was
reasonable to impose the specific duty under Code of Civil Procedure section
995.310. In contrast here, the water system operator, Pinch, and not the local
primacy agency, the County, is expressly charged with notifying affected
consumers. The effectiveness of the notification procedure is not wholly
dependent on the local primacy agency‟s instruction to a water system operator to
notify consumers.

In Braman, the Court of Appeal found that the Department of Justice had a
mandatory duty under Penal Code section 12076 to investigate a person‟s
eligibility to purchase a concealable firearm and to notify a gun dealer if a
prospective purchaser is ineligible. (Braman, supra, 28 Cal.App.4th at p. 351.)
Contrary to plaintiffs‟ suggestion, the department‟s duty to act on its examination
of records was expressly set out in the statute. (Id. at p. 350, quoting Pen. Code, §
12076, former subd. (c) [“The department shall examine” records to determine if a
person is disqualified from purchasing a concealable firearm. “If the department
determines that the purchaser or transferee is” disqualified, “it shall immediately
notify the dealer of that fact.” (Stats. 1990, ch. 1090, § 2, p. 4550)].) Thus,
Braman does not lend support to plaintiffs‟ argument.
19


receive notice of water contamination and to act accordingly. Even if the main
purpose of reviewing the reports is to receive notice of any contamination, it does
not necessarily follow that a local primacy agency‟s response must be to direct a
water system to notify consumers. Instead, a local primacy agency‟s response can
be varied.
In responding to noncomplying water systems, local primacy agencies
“have the same administrative authority as [the Department] to cite and fine
noncomplying water systems. [Local primacy agencies] may conduct office
hearings where they hear the testimony of an alleged noncomplying company. . . .
As a last resort, the [local primacy agencies] may utilize the County District
Attorney to initiate court actions against recalcitrant water systems.” (Final
Opinion Resolving Substantive Water Quality Issues (Cal.P.U.C. Nov. 2, 2000)
No. D. 00-11-014 [2000 Cal.P.U.C. Lexis 722, *22-23]; see Health & Saf. Code,
§ 116330, subd. (f) [local primacy agency “shall be empowered with all of the
authority granted to the department” over specified water systems]; § 64258, subd.
(a) [“local primacy agency shall take enforcement actions as necessary to assure”
that water systems “are in compliance” with regulations].) These various options
underscore that a local primacy agency has discretionary authority in this context.
(See Braman, supra, 28 Cal.App.4th at p. 351.)
Based on the foregoing, we conclude that sections 64256, subdivision (e),
and 64257, subdivision (a), do not support imposing an implied mandatory duty on
the County.
3. Notification Regulations (former §§ 64464.1 and 64464.3)
Contrary to the Court of Appeal‟s conclusion and plaintiffs‟ contention, the
notification regulations (former §§ 64464.1, 64464.3) also do not support
imposing an implied duty here. By their terms, former sections 64464.1 and
20
64464.3 focused on the notification obligations of Pinch as the operator of the
water system. Former section 64464.3, subdivision (a), provided: “Unless
otherwise directed by the [local primacy agency], the water supplier shall notify
the [local primacy agency] and the persons served by the water system whenever”
the supplied drinking water exceeds bacteriological quality limits or MCL‟s, or the
water supplier fails to comply with a prescribed treatment technique or violates
any schedule. (Former § 64464.3, subd. (a)(1)-(3).) This section also set out how
community water systems were to give notice to the public. (Id., subd. (b)(1)(A)-
(D).)14 Subdivision (b)(1) provided that if there is water contamination, the water
supplier “shall” give notice to affected consumers by way of a daily newspaper
and by mail or hand delivery. (Former § 64464.3, subd. (b)(1)(A); see former §
64464.1, subd. (a)(2), (4), (5).) While this subdivision was specific and, by its
terms, self-executing, former section 64464.3 went on to describe several
contingencies where a local primacy agency may intervene: “If the [local primacy

14
Former section 64464.3, subdivision (b)(1) specifically provided: “The
notice to the public pursuant to paragraph (a) shall be given in accordance with the
following methods which are described in [section] 64464.1:

(1) For community water systems:
(A) By Method 2, and by Method 4 or 5; or
(B) If the [local primacy agency] finds that there is no daily newspaper of
general circulation serving the area served by the system, by Method 3 and by
Method 4 or 5; or

(C) If the [local primacy agency] finds that there is no daily or weekly
newspaper of general circulation serving the area served by the system, then by
Method 6 or 7 as directed by the [local primacy agency] based on the degree of
health risk and the nature of the population served by the system;

(D) If the [local primacy agency] finds that, based on the degree of health
risk and the nature of the population served, additional notification is necessary,
then it may direct the community water system to carry out such notification
required to adequately alert the public to the risk.”

21


agency] finds that” (1) there is no daily newspaper, the method of notification is
by weekly newspaper and by mail or hand delivery (former § 64464.3(b)(1)(B));
(2) there is no daily or weekly newspaper, the notification method is by expedited
hand delivery or by posting in conspicuous places “as directed by the [local
primacy agency] based on the degree of health risk and the nature of the
population served by the system” (id., subd. (b)(1)(C)); or (3) “additional
notification is necessary, then it may direct the community water system to carry
out such notification required to adequately alert the public to the risk” (id., subd.
(b)(1)(D)).
Also relevant here, former section 64464.1, which described the 12
different notification methods, stated: “When a water supplier is required to
provide notice pursuant to section 64464.3, or 64464.6, or 64465, then the notice
shall be provided using one or more of the following methods as directed by the
[local primacy agency] pursuant to sections 64464.3, 64464.6, or 64465 . . . .”
(Former § 64464.1, subd. (a); id., subd. (a)(1)-(12) [explaining notification
methods 1 through 12].)15
We conclude that in specifying how notice should be given to the public,
these former sections permitted, but did not obligate, a local primacy agency to
intervene in the notification process. (See Haggis, supra, 22 Cal.4th at p. 498;
Fox v. County of Fresno (1985) 170 Cal.App.3d 1238, 1244 [“These portions of
the statute clearly give the enforcement authority a choice, therefore discretion, to
choose which course of action would be appropriate when a violation is found”].)

15
As relevant here, Method 4 (“Mail Delivery of Notice of Water Quality
Failure”) and Method 5 (“Hand Delivery of Notice of Water Quality Failure”)
provided that the local primacy agency “may waive the requirement” for mail or
hand delivery “if it determines that” the violation or failure has been corrected
within the specified 45-day period. (Former § 64464.1, subd. (a)(4), (5).)
22


The regulatory language (“If the [local primacy agency] finds”) underscores that
the decision to intervene was based on the agency‟s judgment and discretion.
(Former § 64464.3, subd. (b)(1)(B)-(D).) For instance, under former section
64464.3, subdivision (b)(1)(D), the local primacy agency must not only “find”
whether “based on the degree of health risk and the nature of the population
served, additional notification is necessary,” it must also determine what notice
will “adequately alert” the public of the risk. These actions clearly call for the
exercise of the County‟s discretion, and compel the conclusion that the County
was not under a mandatory duty to act. (Haggis, supra, 22 Cal.4th at p. 498; see
Braman, supra, 28 Cal.App.4th at p. 351 [“very essence of discretion is the power
to make „comparisons, choices, judgments, and evaluations‟ ”].) Indeed, the
introductory phrase of this former section (“[u]nless otherwise directed by the
[local primacy agency]”), which does not specify, much less require, that any
particular action be taken or not taken, only underscores that the County has
discretionary authority to intervene in this notification process. (Former §
64464.3, subd. (a); see ante, at p. 8; O’Toole, supra, 140 Cal.App.4th at p. 510;
Clausing, supra, 221 Cal.App.3d at p. 1240.)
Likewise, former section 64464.1 did not impose any particular mandatory
duty on the County. As noted above, former section 64464.1 provided that when a
water supplier must give notice of any water contamination under former section
64464.3, “the notice shall be provided using one or more of the following methods
as directed by the [local primacy agency] pursuant to section[] 64464.3.” (Former
§ 64464.1, subd. (a), italics added.) This italicized portion, which precedes
descriptions of the various notification methods, merely cross-references the
notification procedure outlined in former section 64464.3, which we have
concluded does not obligate the local primacy agency to act. It does not otherwise
independently impose any duty on the agency. Moreover, contrary to the Court of
23
Appeal‟s suggestion, the local primacy agency‟s decision to waive the requirement
for mail or hand delivery of a notice of water contamination “if it determines that”
the violation or failure has been corrected (former § 64464.1, subd. (a)(4), (5),
italics added), does not mandate that the local primacy agency intervene, but again
emphasizes that a local primacy agency has the discretion to act under the
regulation. (See Braman, supra, 28 Cal.App.4th at p. 351.)
In addition, the Act‟s corresponding provision governing the notice
requirement for a water system (Health & Saf. Code, § 116450), also supports our
conclusion that the County was under no mandatory duty to instruct Pinch to
notify plaintiffs of any water contamination. Health and Safety Code section
116450, subdivision (a), provides that the operator of a public water system “shall
notify the department and shall give notice to the users” of any noncompliance
with drinking water standards, failure to perform a monitoring requirement, or
failure to comply with any variance or exemption, “in the manner prescribed by
the department.” (Italics added.) This italicized portion does not presuppose that
the Department (or the local primacy agency here) will tell a water system
operator to notify consumers of any noncompliance or failure; rather, as
reasonably construed, it refers to the Department‟s authority to adopt regulations
outlining the “[r]equirements for notifying the public of the quality of the water
delivered to consumers” (Health & Saf. Code, § 116375, subd. (f)), such as former
section 64464.3. Indeed, this interpretation is bolstered by subdivision (e) of
Health and Safety Code section 116450, which provides: “In addition, the same
notification requirement shall be required in any instance in which the department
or the local health department recommends to the operator that it notify its
customers to avoid internal consumption of the water supply and to use bottled
water due to a chemical contamination that may pose a health risk.” (Italics
added.) Thus, this section makes clear that any specific direction to the water
24
system to notify consumers is made at the recommendation, and not based on the
compulsory duty, of the Department or the local primacy agency. (Cf. Health &
Saf. Code, § 116450, subd. (c) [when Department “determines” there is “an
immediate danger to health” based on significant rise in bacterial count of water, it
“shall immediately notify” operator to implement “emergency notification plan”].)
4. Other Considerations
Contrary to the Court of Appeal‟s suggestion, one of the Act‟s purposes —
“to ensure that the water delivered by public water systems of this state shall at all
times be pure, wholesome, and potable” (Health & Saf. Code, § 116270, subd. (e))
— is not a proper consideration in determining whether to find a mandatory duty
here. (See Groundwater Cases, supra, 154 Cal.App.4th at pp. 683, 692 [Act‟s
legislative objectives are “not „standards‟ by which the actions of the defendants
may be judged” under Gov. Code, § 815.6].) We are mindful that an enactment‟s
purpose may be relevant in this analysis (Haggis, supra, 22 Cal.4th at p. 500);
however, the purpose expressed in Health and Safety Code section 116270,
subdivision (e), does not directly shed light on the core duty plaintiffs seek to
impose, namely, the duty to direct a water system to notify consumers of specific
instances of contaminated water. (See Paredes v. County of Fresno (1988) 203
Cal.App.3d 1, 12 [“specific standards must be and are being set” to reach general,
undefined objective of “ „pure, wholesome, healthful, and potable‟ ” water]; see
also Groundwater Cases, supra, 154 Cal.App.4th at p. 683 [“to impose liability on
water suppliers for failing to provide „pure‟ water would impose on them a
standard impossible to achieve”].) Indeed, the Court of Appeal‟s conclusion —
that the failure to infer such a mandatory duty would defeat this particular purpose
of the Act — only begs the question whether the Legislature or the Department
25
(responsible for adopting the regulations) intended to impose such a duty on a
local primacy agency, a question we have answered in the negative.
We are aware that this holding appears to work some injustice against
plaintiffs. As plaintiffs allege, the County was remiss in failing to fulfill a basic
task, i.e., reviewing the periodic monitoring reports Pinch provided, which would
have disclosed to the County the elevated MCL‟s in 1995 and 1999. As a result of
Pinch‟s failure to notify the Jensen Camp residents, they drank the contaminated
water for a number of years. The natural inclination is to place the County at fault
because it is charged with the general oversight of public water systems in its
jurisdiction, “responsible for ensuring that all public water systems are operated in
compliance with this chapter and any regulations adopted hereunder.” (Health &
Saf. Code, § 116325.) However, as the Court of Appeal recognized, this statute
itself does not require the County to perform any particular act and, as such,
imposes no mandatory duty. “The controlling question is whether the enactment
at issue was intended to impose an obligatory duty to take specified official action
to prevent particular foreseeable injuries, thereby providing an appropriate basis
for civil liability.” (Keech v. Berkeley Unified School Dist. (1984) 162 Cal.App.3d
464, 470.) Indeed, as we have explained above, there is no statute or regulation
that expressly or impliedly mandates that the County instruct the water system to
notify its customers of water contamination. There is no clear, explicit intent to
make the County a “fail-safe” to ensure that notification takes place. “To construe
a statute as imposing a mandatory duty on a public entity, „the mandatory nature
of the duty must be phrased in explicit and forceful language.‟ [Citation.] „It is
not enough that some statute contains mandatory language. In order to recover
plaintiffs have to show that there is some specific statutory mandate that was
violated by the [public entity] . . . .‟ ” (Groundwater Cases, supra, 154
Cal.App.4th at p. 689; cf. Braman, supra, 28 Cal.App.4th at p. 352 [mandatory
26
duty where “Legislature inserted language of unavoidable obligation and specified
the nature of that obligation with some precision”].)
Indeed, the County‟s amici curiae — the California State Association of
Counties and the League of California Cities and numerous state regulators of
public health and safety services represented by the Attorney General — point out
that imposing an implied mandatory duty in this circumstance would frustrate the
Legislature‟s intent to secure support from counties to help administer and enforce
the Act. Under the Act, the Department has delegated primacy to 35 of the state‟s
58 counties to oversee over half of the public water systems. (See ante, fn. 9.) As
amici curiae note, “This delegation reflects a legislative preference for county
regulation of local matters, at least when these localities demonstrate commitment
and ability to take on regulatory responsibility.” By exposing these public entities
to unanticipated liability and unforeseen fiscal burden, counties will be
discouraged from undertaking responsibility of the regulatory programs, thus
frustrating the effective administration and enforcement of the Act.
CONCLUSION

Our holding that the County was not subject to any mandatory duty for
purposes of Government Code section 815.6 liability is limited to the implied duty
to instruct a water system to notify consumers of water contamination.
Notwithstanding the Court of Appeal‟s conclusions on various express duties of
the County, the lower court made such conclusions in the context of finding an
implied duty. It did not, however, determine whether there are any express
mandatory duties that would, in and of themselves, give rise to an action under
Government Code section 815.6.16

16
Given our holding, it is unnecessary to discuss whether any duties were
intended to protect against the alleged injuries suffered or to address the proximate

(footnote continued on next page)
27



Therefore, we reverse the Court of Appeal‟s judgment with directions to
determine whether the County has any express mandatory duties that are
actionable under Government Code section 815.6.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

(footnote continued from previous page)

cause element. (Gov. Code, § 815.6; see ante, at p. 8.) It is also unnecessary to
address whether any of the identified immunity statutes (Gov. Code, §§ 818.2,
818.4, 818.6, 820.4, 820.8, 821, 821.2, 821.4), would apply here. (Creason,
supra, 18 Cal.4th at p. 630 [question of liability precedes that of statutory
immunity].) However, in remanding the matter to the Court of Appeal, we do not
perceive the Court of Appeal‟s previous conclusions on these matters to foreclose
the County‟s ability to raise these issues with respect to any express mandatory
duty.
28


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Guzman v. County of Monterey
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 155 Cal.App.4th 645
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S157793
Date Filed: June 22, 2009
__________________________________________________________________________________

Court:

Superior
County: Monterey
Judge: Kay T. Kingsley

__________________________________________________________________________________

Attorneys for Appellant:

Sullivan Hill Lewin Rez & Engel, Brian L. Burchett; Law Offices of Richard H. Rosenthal, Richard H.
Rosenthal; Selden Law Firm and Lynde Selden II for Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Charles J. McKee, County Counsel, and Patrick McGreal, Deputy County Counsel, for Defendants and
Respondents.

Dennis J. Herrera, City Attorney (San Francisco), Joanne Hoeper, Chief Trial Deputy, John S. Roddy and
Donald P. Margolis, Deputy City Attorneys, for California State Association of Counties and League of
California Cities as Amici Curiae on behalf of Defendants and Respondents.

Edmund G. Brown, Jr., Attorney General, David S. Chaney, Chief Assistant Attorney General, Gordon B.
Burns, Deputy State Solicitor General, James M. Schiavenza, Assistant Attorney General, and Kristin G.
Hogue, Deputy Attorney General, for California Health and Human Services Agency, California
Department of Public Health, California Department of Aging, California Department of Alcohol and Drug
Programs, California Department of Child Support Services, California Department of Community
Services and Development, California Department of Developmental Services, California Emergency
Medical Services Authority, California Department of Health Care Services, California Managed Risk
Medical Insurance Board, California Department of Mental Health, California Department of
Rehabilitation, California Department of Social Services and California Office of Statewide Health
Planning and Development as Amici Curiae on behalf of Defendants and Respondents.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Brian L. Burchett
Sullivan Hill Lewin Rez & Engle
550 West C Street, Suite 500
San Diego, CA 92101
(619) 233-4100

Patrick McGreal
Deputy County Counsel
168 W. Alisal Street, 3rd Floor
Salinas, CA 93901-2439
(831) 755-5045


Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: Does the California Safe Drinking Water Act (Health & Saf. Code, section 116270 et seq.) impose specific mandatory duties upon the County of Monterey within the meaning of Government Code section 815.6 and thus expose the county to monetary liability for the breach of a duty to review and respond to water quality monitoring reports submitted by water systems within its jurisdiction?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 06/22/200946 Cal. 4th 887, 209 P.3d 89, 95 Cal. Rptr. 3d 183S157793Review - Civil Appealclosed; remittitur issued

Parties
1County Of Monterey (Defendant and Respondent)
Represented by Patrick I. Mcgreal
Office of the County Counsel
168 W. Alisal Street, 3rd Floor
Salinas, CA

2Pinch, Rick (Defendant and Respondent)
Represented by Patrick I. Mcgreal
Office of the County Counsel
168 W. Alisal Street, 3rd Floor
Salinas, CA

3Guzman, Javier R. (Plaintiff and Appellant)
Represented by Brian L. Burchett
Sullivan Hill Lewin Rez & Engel
550 W. "C" Street, Suite 1500
San Diego, CA

4Guzman, Javier R. (Plaintiff and Appellant)
Represented by Richard Herbert Rosenthal
Law Office of Richard H. Rosenthal
27880 Dorris Drive, Suite 110
Carmel, CA

5Guzman, Javier R. (Plaintiff and Appellant)
Represented by Lynde Ii Selden
Selden Law Firm
544 Silvergate Avenue
San Diego, CA

6R., Javier (Plaintiff and Appellant)
Represented by Brian L. Burchett
Sullivan Hill Lewin Rez & Engel
550 W. "C" Street, Suite 1500
San Diego, CA

7R., Javier (Plaintiff and Appellant)
Represented by Richard Herbert Rosenthal
Law Office of Richard H. Rosenthal
27880 Dorris Drive, Suite 110
Carmel Valley, CA

8R., Javier (Plaintiff and Appellant)
Represented by Lynde Ii Selden
Selden Law Firm
544 Silvergate Avenue
San Diego, CA

9California State Association Of Counties (Amicus curiae)
Represented by Donald P. Margolis
Office of the City Attorney
1390 Market Street, 6th Floor
San Francisco, CA

10California State Association Of Counties (Amicus curiae)
Represented by Joanne Hoeper
Office of the City Attorney
1390 Market Street, 6th Floor
San Francisco, CA

11California Health And Human Services Agency (Amicus curiae)
Represented by Kristin G. Hogue
Office of the Attorney General
P.O. Box 85266
San Diego, CA

12Department Of Public Health (Amicus curiae)
Represented by Kristin G. Hogue
Office of the Attorney General
P.O. Box 85266
San Diego, CA

13League Of California Cities (Amicus curiae)
Represented by Donald P. Margolis
Office of the City Attorney
1390 Market Street, 6th Floor
San Francisco, CA

14League Of California Cities (Amicus curiae)
Represented by Dennis Jose Herrera
City Attorney, City & County of San Francisco
1390 Market Street, 6th Floor
San Francisco, CA


Opinion Authors
OpinionJustice Ming W. Chin

Disposition
Jun 22 2009Opinion: Reversed

Dockets
Nov 1 2007Petition for review filed
County of Monterey et al., respondents Patrick McGreal, counsel
Nov 1 2007Record requested
Nov 6 2007Received Court of Appeal record
one file folder/briefs/transcript
Nov 21 2007Answer to petition for review filed
Javier R. Guzman, et al., plaintiffs and appellants by Brian L. Burchett, Sullivan Hill Lewin Rez & Engel, A PLC, counsel CRC 8.25(b)
Dec 3 2007Reply to answer to petition filed
County of Monterey, et al., respondents by Patrick McGreal, Deputy County Counsel.
Dec 17 2007Time extended to grant or deny review
The time for granting or denying review in the above-entitled matter is hereby extended to and including January 30, 2008 or the date upon which review is either granted or denied.
Jan 3 2008Petition for review granted (civil case)
Votes: George, C.J., Kennard, Baxter, Chin, Moreno and Corrigan, JJ. Werdegar, J., was absent and did not participate.
Jan 14 2008Certification of interested entities or persons filed
by Brian L. Burchett, Sullivan Hill Lewin et al., counsel for Appellants Javier Guzman, et al.
Jan 17 2008Request for extension of time filed
by respondent, County of Monterey, requesting a 30-day extension to and including March 7, 2008 to file respondent's opening brief on the merits. By Patrick McGreal, counsel
Jan 17 2008Certification of interested entities or persons filed
By Respondent, County of Monterey. By Patrick McGreal, counsel
Jan 18 2008Extension of time granted
On application of respondent, County of Monterey, and good cause appearing, it is ordered that the time to serve and file respondent's opening brief on the merits is hereby extended to and including March 7, 2008.
Mar 7 2008Opening brief on the merits filed
County of Monterey, respondent by Patrick McGreal, Deputy County Counsel - Monterey
Mar 17 2008Received:
Letter dated 3-13-2008 from Kristin G. Hogue, Supervising Deputy Attorney General, requesting to be included in the service list.
Apr 2 2008Request for extension of time filed
Respondent requesting a 14-day extention to file the answer brief on the merits, by Brain L. Burchett, Counsel
Apr 7 2008Extension of time granted
On application of Javier R. Guzman and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including April 21, 2008.
Apr 21 2008Answer brief on the merits filed
Javier R. Guzman, et al., plaintiffs and appellants by Brian L. Burchett, Sullivan HIll Lewin Rez & Engel, PLC, counsel
May 8 2008Filed:
Respondent's application to file a reply brief on the merits in excess of the 4,200 word limit, but not to exceed 5,200 words (application only) by Patrick McGreal, Deputy County Counsel - Monterey County
May 9 2008Order filed
The application of Respondent County of Monterey for permission to file a reply brief on the merits in excess of the 4,200 word limitation but not to exceed 5,200 words is hereby granted.
May 9 2008Reply brief filed (case fully briefed)
County of Monterey, respondent by Patrick McGreal, counsel
Jun 5 2008Request for extension of time to file amicus curiae brief
for a 14-day extension of time to submit Amici Curiae Brief of the California State Association of Counties and League of California Cities in support of Respondent County of Monterey. by Donald P. Margolis, Deputy City Attorney - San Francisco
Jun 6 2008Request for extension of time to file amicus curiae brief
Amici Curiae California Health and Human Services Agency and California Department of Public Health for a 14-day extension of time to file its application and amici curiae brief in support of Respondent County of Monterey. By Kristin G. Hogue, counsel
Jun 12 2008Extension of time granted
On application of amicus curiae California Health and Human Services Agency and the California Department of Public Health and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of respondent, County of Monterey is hereby extended to and including June 25, 2008.
Jun 12 2008Extension of time granted
On application of amici curiae California State Association of Counties and League of California Cities and good cause appearing, it is ordered that the time to serve and file its amici curiae brief in support of respondent, County of Monterey is hereby extended to and including June 25, 2008.
Jun 25 2008Received application to file Amicus Curiae Brief
California State Associaton of Counties and League of California Cities in support of respondent by Donald P. Margolis, Deputy City Attorney - San Francisco
Jun 30 2008Received application to file Amicus Curiae Brief
Amici Curiae California Health and Human Services Agency, et al. in support of Respondent County of Monterey by Kristin G. Hogue, Supervising Deputy A.G. - San Diego Received letter dated 7-1-2008 indicating Amici is in support of Respondent County of Monterey.
Jul 7 2008Permission to file amicus curiae brief granted
On application of Amici Curiae California Health and Human Services Agency, etc. et al., for permission to file an amici curiae brief in support of Respondent County of Monterey is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 7 2008Amicus curiae brief filed
Amici Curiae California Health and Human Services Agency, etc. et al., in support of Respondent County of Monterey.
Jul 7 2008Permission to file amicus curiae brief granted
The application of California State Association of Counties and League of California Cities for permission to file an amicus curiae brief in support of Respondent County of Monterey is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 7 2008Amicus curiae brief filed
California State Association of Counties and League of California Cities in support of Respondent County of Monterey.
Jul 28 2008Response to amicus curiae brief filed
Respondents Javier R. Guzman et al to amicus brief California State Association of Counties, League of California Cities and State of California Departments by Brian L. Burchet, Sullivan Hill et al., counsel
Mar 11 2009Case ordered on calendar
to be argued on Wednesday, April 8, 2009, at 2:00 p.m., in Los Angeles
Apr 8 2009Cause argued and submitted
Jun 19 2009Notice of forthcoming opinion posted
Jun 22 2009Opinion filed: Judgment reversed
with directions to determine whether the County has any express mandatory duties that are actionable under Government Code section 815.6. Majority Opinion by Chin, J. ----- Joined by George, C. J., Kennard, Baxter, Werdegar, Moreno and Corrigan, JJ.
Jul 23 2009Remittitur issued
Jul 31 2009Received:
Acknowledgment of receipt for remittitur from Sixth Appellate District, signed for by C. Pochop, Deputy Clerk
Aug 4 2009Returned record
H030647 (S157793) Guzman v. County of Monterey. One doghouse.

Briefs
Mar 7 2008Opening brief on the merits filed
County of Monterey, respondent
Apr 21 2008Answer brief on the merits filed
Javier R. Guzman, et al., plaintiffs and appellants
May 9 2008Reply brief filed (case fully briefed)
County of Monterey, respondent by Patrick McGreal, counsel
Jul 7 2008Amicus curiae brief filed
Amici Curiae California Health and Human Services Agency, etc. et al., in support of Respondent County of Monterey.
Jul 7 2008Amicus curiae brief filed
California State Association of Counties and League of California Cities in support of Respondent County of Monterey.
Jul 28 2008Response to amicus curiae brief filed
Respondents Javier R. Guzman et al to amicus brief California State Association of Counties, League of California Cities and State of California Departments
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 11, 2009
Annotated by Grace Feldman

In a case involving fluoride contamination in the drinking water at a mobile home park, the Court of Appeal found that the state’s Safe Drinking Water Act and its implementing regulations established that the county had an implied mandatory duty to require the operator of the park’s water system to notify residents of any reported water contamination. Since there is no common law tort liability for public entities in California, the Supreme Court applied Government Code Section 815.6, which requires a mandatory duty to be created by explicit and forceful statutory language and imposed on the specific entity sought to be held liable. The key elements of liability under Section 815.6 are (1) a required, rather than discretionary or permissive, action or inaction and (2) an injury of the type sought to be protected against by the mandatory duty. Applying these principles, the Court interpreted the Safe Drinking Water Act to determine that the County had no implied obligation to notify affected consumers. Rather, that responsibility belonged to the water system’s operator. The Court reversed the Court of Appeal’s holding regarding an implied duty and remanded so that the lower court could determine whether the act included any express duties that would give rise to an action under Section 815.6.

Nov 11, 2009
Annotated by Grace Feldman

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Nov 11, 2009
Annotated by Grace Feldman

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