Micheli v. City of Fresno CA5 (2026) · DecisionDepot

Micheli v. City of Fresno CA5

Name: California Superior Court Tentative Rulings
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California Court of Appeal Feb 13, 2026 No. F085599Unpublished

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Holding. The court reversed the judgment granting summary judgment to the City, reversed the order sustaining the demurrer to the inverse condemnation claim with leave to amend, and affirmed the class certification order. The court held that the 'invited water' doctrine does not create a bright-line bar to inverse condemnation claims and that plaintiffs should be granted leave to amend their complaint to allege facts showing they were singled out for special harm.

Issues

Whether the trial court erred in sustaining the City's demurrer to the inverse condemnation claim based on the 'invited water' doctrine.
Whether the trial court erred in granting summary judgment on the class-certified causes of action.
Whether the trial court's class certification order should be affirmed.

Disposition. Reversed and remanded.

Quotations verified verbatim against the opinion

“We reverse the judgment and direct the superior court to vacate its order granting summary judgment and to enter a new order granting summary adjudication of plaintiffs’ class certified causes of action”

“We affirm the court’s class certification order.”

Filed 2/13/26 Micheli v. City of Fresno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

KAREN MICHELI et al.,

Plaintiffs and Appellants, F085599

v. (Super. Ct. No. 16CECG02937)

CITY OF FRESNO,

Defendant and Appellant.

JACKIE FLANNERY et al., (Super. Ct. No. 17CECG01724)

Plaintiffs and Appellants, OPINION v.

CITY OF FRESNO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T. McGuire, Judge. Boucher, Raymond P. Boucher, Shehnaz M. Bhujwala; Chandler Law, Stuart R. Chandler; Cotchett, Pitre & McCarthy, Frank M. Pitre, Julie L. Fieber, Donald J. Magilligan; Kabateck, Brian S. Kabateck; Law Office of Michael E. Gatto, Michael E.

Gatto; Owen, Patterson & Owen, Gregory J. Owen; Esner, Chang, Boyer & Murphy, Andrew N. Chang, Stuart B. Esner and Rowena J. Dizon for Micheli and Flannery Class Plaintiffs and Appellants. Aleshire & Wynder, Anthony R. Taylor, Christine M. Carson, Michael C. Huston; Tropea McMillan, Matthew D. McMillin; Andrew N. Janz and Tina R. Griffin for Defendant and Appellant. -ooOoo- In this consolidated class action suit, plaintiffs/appellants (plaintiffs)1 appeal from a final judgment entered in favor of defendant/appellant City of Fresno (City) after the trial court granted City’s motion for summary judgment, and from an earlier court order sustaining City’s demurrer to plaintiffs’ cause of action for inverse condemnation without leave to amend. City filed a protective notice of cross-appeal to challenge the court’s previous class certification order. We reverse the judgment and direct the superior court to vacate its order granting summary judgment and to enter a new order granting summary adjudication of plaintiffs’ class certified causes of action for breach of contract and breach of implied warranty and denying the remainder of the motion. In addition, we reverse the court’s order sustaining City’s demurrer to plaintiffs’ inverse condemnation claim without leave to amend and direct

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it to enter a new order sustaining the demurrer with leave to amend. We affirm the court’s class certification order. INTRODUCTION City, through its Water Division, operates a large public water system to supply its constituents with drinking water. For most of its history, the drinking water City supplied to its customers was sourced from natural groundwater reserves. Over the years, this groundwater resource has been receding. In 1991, City “formed a technical advisory committee with other local agencies” to develop a plan “to ensure the Fresno metropolitan area has a reliable water supply through 2050.” Pursuant to the plan, City commissioned the development of the Northeast Surface Water Treatment Facility [NE treatment facility] to treat surface water (e.g., water obtained from lakes, reservoirs, rivers and/or canals) for use as drinking water. City began operating the NE treatment facility in 2004 upon receiving interim approval from the California Department of Health Services (DHS) to use the Enterprise Canal as a source of raw water supply for the facility. DHS (and a successor entity, the State Water Resources Control Board (State Board)) subsequently issued amendments to City’s water supply permit to govern its continued operation of the NE treatment facility. Plaintiffs, residents of northeast Fresno, allege the water City supplied them from the NE treatment facility caused their galvanized iron plumbing to corrode to the point of requiring replacement and to leach harmful contaminants into their drinking water, resulting in recurring discolored water episodes and causing them health-related concerns. Plaintiffs brought suit against City alleging, among other things, claims for inverse condemnation, nuisance and negligence. FACTUAL AND PROCEDURAL BACKGROUND We begin our review by summarizing facts and contentions alleged in plaintiffs’ fourth amended complaint, which was the subject of City’s demurrer to plaintiffs’ inverse condemnation claim.

I. Allegations of the Fourth Amended Complaint In their fourth amended complaint, plaintiffs make the prefatory statement that “[a]ll allegations … are pled in the alternative to the extent they present any actual conflict.” The facts alleged by plaintiffs are assumed true for the purpose of reviewing the trial court’s order sustaining City’s demurrer. (Potocki v. Wells Fargo Bank, N.A. (2019) 38 Cal.App.5th 566, 569.) Prior to the events at issue, City “relied exclusively on groundwater … to supply its residents with potable water.” City eventually “saw a need to develop an additional source of water to supply homes in the City of Fresno.” As a result, in 2004, City brought the NE treatment facility online, at which point City began using surface water sourced from local rivers to supplement its water supply, treated the blended water at the NE treatment facility, and supplied “more than 20 million gallons of water per day to thousands of homes” in northeast Fresno. After the NE treatment facility was brought into service, northeast Fresno residents (service area residents), including plaintiffs and class members, “began experiencing issues with their water, including discoloration.” City began to receive water quality complaints from residents who had not previously experienced such problems. City “was aware that these issues would likely manifest at the time it undertook to build and develop” the NE treatment facility as a result of a 1998 engineering report it commissioned. City knew that “ ‘galvanized piping predominates with well over 50% of the installation in Fresno households.’ ” “The 1998 report informed the CITY that there would be a strong likelihood of corrosion in galvanized piping due to the significant differences in these water sources’ inorganic character.” City’s consultants advised it that changing its water source to blended groundwater and surface water would lead to “degradation in the water’s aesthetic quality” and that “water quality issues may manifest in the form of increased release of particulates, red water episodes, and the increased corrosion on the base metal of the piping’s wall.” City knew the new water would “destabiliz[e] the

City’s consultants determined the “probable cause of [water] discoloration … and corrosion in [plaintiffs’] galvanized piping was [City’s] addition of treated surface water into the water distribution system that previously relied solely on groundwater.” The problem was exacerbated by City’s decision to switch back and forth between groundwater and surface water. The consultants “acknowledged that the discoloration issue will not be completely eliminated so long as the [NE treatment facility] continues supplying water to homes with galvanized piping.” They recommended City advise service area residents to “let the water run” before using to reduce lead concentrations, and to replace their galvanized piping. City’s “maintenance and operation of its [NE treatment facility] relating to the function and purpose of the plant as conceived, including but not limited to the introduction of the surface water to the existing groundwater system without appropriate treatment to address the changing chemistry and its impact to Fresno’s water supply, … caused it to deliver highly aggressive and corrosive water” to plaintiffs’ homes. The “introduction of treated surface water into Fresno’s water supply as deliberately designed and conceived by the [City] caused physical damage to Plaintiffs’ and Class members’ properties.” A report prepared by City consultants as part of City’s 2016 investigation concluded City’s “change in water sources caused a disturbance in the chemical balance between the water and the piping surfaces. This disturbance only intensified with [City’s] deliberate act of continuously switching the two chemically different water sources back and forth based on consumer demand, which prevented the surface piping from being able to establish a balance with either water source[].” In an allegation that was not incorporated into plaintiffs’ inverse condemnation cause of action, plaintiffs allege City failed “to comply with the [applicable] regulatory scheme, which includes legislatively mandated water testing, notification, and reporting requirements” including federal and state Lead and Copper Rules (sometimes collectively

“ ‘We review the ruling sustaining the demurrer de novo, exercising independent judgment as to whether the complaint states a cause of action as a matter of law.’ [Citation.] ‘ “[W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” ’ [Citation.] ‘When conducting this independent review, appellate courts “treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law.’ ” (Kahan v. City of Richmond (2019) 35 Cal.App.5th 721, 730.) “[W]e must treat the demurrer as admitting all material facts properly pleaded and all reasonable inferences which can be drawn therefrom.” (Bloomberg v. Interinsurance Exchange (1984) 162 Cal.App.3d 571, 574–575.) “ ‘ “[T]he plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action and overcoming all of the legal grounds on which the trial court sustained the demurrer, and if the defendant negates any essential element, we will affirm the order sustaining the demurrer …. [Citation.] We will affirm if there is any ground on which the demurrer can properly be sustained, whether or not the trial court relied on proper grounds or the defendant asserted a proper ground in the trial court proceedings.” ’ [Citation.] It is the trial court’s ruling we review, not its reasoning or rationale.” (Kahan v. City of Richmond, supra, 35 Cal.App.5th at p. 730.) B. Contentions and Analysis The trial court, relying on Williams, supra, 22 Cal.App.5th 1198, sustained City’s demurrer to plaintiffs’ cause of action for inverse condemnation, after concluding that plaintiffs “fail[ed] to allege any facts showing how their homes were ‘singled out’ for special harm by … City’s use of surface water,” and that plaintiffs “invited the water into their homes.” In Williams, the plaintiffs sued water districts for inverse condemnation and private nuisance, alleging the “copper piping in their homes was damaged by a chemical [the] defendant water districts added to tap water.” (Williams, supra, 22 Cal.App.5th at pp. 1200–1201.) The trial court entered judgment in favor of the water districts and the

proffered amendment), we conclude the allegation would take plaintiffs’ claim outside the scope of inverse condemnation and would convert the claim to one that sounds in tort. In City of Oroville v. Superior Court (2019) 7 Cal.5th 1091, our high court stated, “[a] court assessing inverse condemnation liability must find more than just a causal connection between the public improvement and the damage to private property. [D]amage to private property must be substantially caused by an inherent risk presented by the deliberate design, construction, or maintenance of the public improvement.” (Id. at p. 1105.) “The inherent risk assessment requires a reviewing court to consider whether the inherent dangers of the public improvement as deliberately designed, constructed, or maintained materialized and were the cause of the property damage. [Citations.] … The inherent risk assessment … avoids open-ended liability by protecting public entities from liability for private property damage that is arguably connected to a public improvement but is not the result of the improvement’s inherent risks.” (Id. at p. 1106.) In Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, our high court wrote, “damage caused by the negligent conduct of public employees or a public entity does not fall within the aegis of section 19,” i.e., the state’s takings clause. (Id. at p. 381.) Quoting prior precedent, the high court wrote, “Justice Traynor was careful to explain that ‘[t]he destruction or damaging of property is sufficiently connected with “public use” as required by the Constitution, if the injury is a result of dangers inherent in the construction of the public improvement as distinguished from dangers arising from the negligent operation of the improvement.’ ” (Id. at p. 382, italics in original.) “Damage resulting from negligence in the routine operation having no relation to the function of the project as conceived is not within the scope of the rule applied in the present case.” (Ibid., italics omitted.) As stated by another court, “[w]here damage results from the acts of employees, and not from a policy decision, there is no taking. Recovery, if any, lies in a tort action, such as negligence.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 87.)

Here, City could not legally operate the NE treatment facility without a water supply permit (§§ 116525, subd. (a), 116275, subd. (g)), and it is undisputed City, after completing various studies pertaining to the facility, obtained the approvals and water supply permit amendments necessary to operate the facility. Undoubtedly, City’s water supply permit was part of the deliberate design and conception of the facility. Any damages resulting from City’s alleged failure to adhere to corrosion control techniques mandated by its water supply permit would not be the result of the design, construction or maintenance of the NE treatment facility as conceived but, rather, would be the result of deviating from the design of the NE treatment facility as conceived. Plaintiffs argued they expressly alleged “a deliberate action” of City in building and operating the NE treatment facility. They further argue there was an “inherent risk” in the design because of the possibility of fluctuating pH levels. They argue negligence may support an inverse condemnation claim when it is a “ ‘deliberate act carrying with it the purpose of fulfilling one or another of the public objects of the project as a whole,’ ” quoting Customer Co. v. City of Sacramento, supra, 10 Cal.4th at page 382, italics omitted. We fail to appreciate how defying State-mandated corrosion control procedures could be considered “fulfilling … the public objects” of the NE treatment facility. Here, the deliberate design of the facility called for certain protocols to be implemented in order to achieve (or approximate) a target pH of 9.0. The alleged failure to abide by those treatment protocols was a deviation from the deliberate design of the facility and would take the case outside the scope of inverse condemnation claims. Plaintiffs argue the unincorporated allegation that City deviated from State-mandated corrosion control procedures was merely an “alternate” allegation of fact and that the remaining factual allegations are sufficient to state a cause of action for inverse condemnation. Subject to the caveat that plaintiffs would need to amend their complaint to allege being singled out for special harm, we agree.

“A plaintiff may plead inconsistent causes of action. [Citation.] ‘When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.’ [Citation.] This doubt can arise when [the] plaintiffs are certain of their legal rights but unsure about some of the ultimate facts or when [the] plaintiffs are reasonably certain of the facts but are unsure about their legal rights. [Citation.] To accommodate these uncertainties, [the] plaintiffs can generally plead ‘alternative factual allegations relying on alternative legal theories.’ ” (Batta v. Hunt (2024) 106 Cal.App.5th 295, 304.) Plaintiffs alleged City’s “maintenance and operation of its [NE treatment facility] relating to the function and purpose of the plant as conceived, including but not limited to the introduction of the surface water to the existing groundwater system without appropriate treatment to address the changing chemistry and its impact to Fresno’s water supply, … caused it to deliver highly aggressive and corrosive water.”10 Plaintiffs alleged City consultants “concluded and confirmed that the likely cause of the discolored water problem is the CITY’s introduction of treated surface water into a water system that for decades relied solely upon groundwater” and, in 1998, City consultants warned that “potential water quality issues” including “increased corrosion” to plumbing may result from the introduction of a “new water source with an entirely different chemical composition” into City’s water distribution system. Plaintiffs alleged the NE treatment facility posed an “inherent risk that surface water used to provide for the growing demand of the public would cause damage and injury to those homes with galvanized pipes by stripping their protective zinc coating and causing corrosion” and the “introduction of treated surface water into Fresno’s water supply as deliberately designed and conceived by the CITY caused physical damage to Plaintiffs’ and Class members’ properties.”

federal SDWA and is intended to be “more protective of public health” than the minimum federal standards.’ [Citations.] Because the [state] SDWA is a remedial act intended to protect the public from contamination of its drinking water, we are required to construe it broadly to accomplish its protective purpose.” (Coshow, supra, 132 Cal.App.4th at pp. 703–704.) “One of [DHS]’s responsibilities under the [state] SDWA is to establish ‘primary drinking water standards that include the maximum levels of contaminants which, in [its] judgment, may have an adverse effect on the health of persons.’ [Citations.] [DHS] is also responsible for reviewing and revising public health goals for contaminants in drinking water, including preparing health risk assessments for any contaminants deemed carcinogenic or acutely toxic. [Citations.] With respect to acutely toxic substances, the maximum contaminant level (MCL) is set at a level that will avoid any known or anticipated adverse effects on public health with an adequate margin of safety. [Citation.] With respect to carcinogens, the MCL is set at a level that will avoid any risk to public health. [Citations.] [A municipality] is required to ensure its public water system complies with the primary and secondary drinking water standards established by [DHS].” (Coshow, supra, 132 Cal.App.4th at p. 704.) In 1991, the EPA promulgated “national primary drinking water regulations for lead and copper.” (40 C.F.R., § 141.80 et seq.) Those regulations “constitute a treatment technique rule that includes treatment techniques to control corrosion, treat source water, replace service lines, and provide public education.” (40 C.F.R., § 141.80(b).) Subsequently, the state of California promulgated its own lead and copper rules (i.e., LCRs). (22 Cal. Code Regs., § 64670 et seq.) The state’s LCRs provide definitions for the following statutory terms relevant to the case before us: “ ‘Action level’ … means the concentration of lead or copper in water that is used to determine the requirements … that a system shall meet.” (22 Cal. Code Regs., § 64671.05.) “ ‘Action level exceedance’ … means that the level of lead or copper is

greater than the respective action level, as determined pursuant to [state regulation] section 64678(d) through (g).” (Id., § 64671.08.) “The lead action level is exceeded if the concentration of lead in more than 10 percent of the tap water samples collected during any period is greater than 0.015 mg/L (i.e., if the ‘90th percentile’ lead level is greater than 0.015 mg/L). [¶] … The copper action level is exceeded if the concentration of copper in more than 10 percent of the tap water samples collected during any period is greater than 1.3 mg/L (i.e., if the ‘90th percentile’ copper level is greater than 1.3 mg/L).” (Id., § 64678, subds. (d), (e).) However, “[a]n action level exceedance shall not constitute a violation of [the LCRs].” (22 Cal. Code Regs., § 64670, subd. (b).) Rather, an LCR action level exceedance triggers additional duties on the part of a large public water system to bring the system into compliance. (Williams, supra, 22 Cal.App.5th at pp. 1203–1204; see, e.g., 22 Cal. Code Regs., §§ 64674, subd. (e), 64679, 64685, 64687, subds. (a), (d)(2).) C. Summary Judgment Law and Standard of Review “A party may move for summary judgment … if it is contended that the action has no merit.” (Code Civ. Proc., § 437c, subd. (a)(1).) “A defendant … has met [its] burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action … cannot be established, or that there is a complete defense to the cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id., § 437c, subd. (p)(2).) A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Id., § 437c, subd. (c).) A trial court’s grant of summary judgment is reviewed de novo. (Samara v. Matar (2018) 5 Cal.5th 322, 338.) “We consider all the evidence offered in connection with the motion, except that which the trial court properly excluded.” (Salas v. Department of

Transportation (2011) 198 Cal.App.4th 1058, 1067.) “Evidence presented in opposition to summary judgment is liberally construed, with any doubts about the evidence resolved in favor of the party opposing the motion.” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) “In reviewing a grant of summary judgment, an appellate court must make its own independent determination of the construction and effect of the papers submitted. … The reviewing court applies the same three-step analysis as that of the trial court: (1) identification of issues framed by the pleadings; (2) determination of whether the moving party has established facts which negate the opponent’s claim and justify a judgment in movant’s favor; and (3) determination of whether the opponent demonstrates the existence of a triable, material factual issue.” (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886–887; Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 1318; Code Civ. Proc., § 437c, subd. (a)(1).) “The court’s stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale.” (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1168.) D. Grounds Upon Which City Moved for Summary Judgment City moved for summary judgment on the following grounds: (1) that plaintiffs’ causes of action are barred as matter of law under the holdings in Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256 (Hartwell) and Groundwater, supra, 154 Cal.App.4th 659 “because conclusive evidence proves … City complied with applicable drinking water standards and regulations at all relevant times” (unnecessary boldface type and capitalization omitted); (2) that City is immune from plaintiffs’ suit because plaintiffs cannot meet the requirements of Government Code section 815.6. Specifically, City contends the state SDWA was not intended to protect against “economic losses due to corrosion of homeowners’ privately-owned galvanized plumbing systems” (unnecessary boldface type and capitalization omitted), that the violations alleged by plaintiffs are not violations of mandatory duties imposed on City, and that plaintiffs have no facts to

demonstrate City’s alleged SDWA violations were the proximate cause of plaintiffs’ alleged damages; and (3) that plaintiffs’ causes of action are barred by the applicable statute of limitations. E. Whether Plaintiffs’ Claims are Barred Under Hartwell and Groundwater In its summary judgment motion, City contended plaintiffs’ claims are not judicially actionable under the holdings in Hartwell and Groundwater because plaintiffs’ claims do not involve violation of an MCL. City argues Hartwell and Groundwater stand for the proposition that “a plaintiff [must] prove violations of numeric water quality standards and an order to comply in order to pursue damages allegedly caused by drinking water.” To avoid summary judgment, City contends plaintiffs needed to produce admissible evidence “showing: (1) the City’s water supply continually exceeded primary numeric drinking water standards and regulations established by the State Board, and (2) the State Board ordered the City to cease delivering water as a result of the City’s continued noncompliance.” “If a Plaintiff cannot satisfy this threshold burden,” City argues, “then such plaintiff is foreclosed from pursuing damages because no liability exists.” Plaintiffs argue Hartwell and Groundwater are inapposite because the plaintiffs in those cases were challenging the adequacy of water quality standards and regulations promulgated under the SDWA; whereas, here, plaintiffs are not challenging the adequacy of drinking water standards and, instead, seek to hold City liable “for damages caused by the City’s past violations of regulations and statutes as written in the [state SDWA] and as established by the implementing regulations of” DHS and the State Board. We agree with plaintiffs that Hartwell and Groundwater do not bar their claims. 1. Hartwell In Hartwell, several groups of plaintiffs, in separate actions, sued various water providers and others for providing them well water contaminated with toxic substances. (Hartwell, supra, 27 Cal.4th at p. 261.) Among the defendants were water utilities regulated by the California Public Utilities Commission (PUC), water providers not regulated by the

PUC, and “corporate parties that are not water providers or regulated by the PUC.” (Id. at pp. 260–261.) The plaintiffs asserted causes of action for negligence, strict liability, trespass, public and private nuisance, fraudulent concealment, wrongful death, conspiracy, battery, and unfair business practices. (Id. at p. 261.) Once the lawsuits were initiated, the PUC investigated to determine, among other things, “(1) whether current drinking water standards adequately protect the public health and safety; [and] (2) whether the regulated water utilities have complied with those standards.” (Hartwell, supra, 27 Cal.4th at p. 262.) The PUC issued a final opinion in the matter and determined “existing DHS drinking water quality standards adequately protect the public health and safety,” and “over the past 25 years, the regulated utilities … provided water that was ‘ “in no way harmful or dangerous to health” ’ and had satisfactorily complied with DHS drinking water quality requirements.” (Id. at p. 263.) Various defendants sought to dismiss or, alternatively, stay the plaintiffs’ actions “on the ground that the litigation was barred by [Public Utilities Code] section 1759.” (Hartwell, supra, 27 Cal.4th at p. 263) That statute reads, in part: “No court of this state, except the Supreme Court and the court of appeal … shall have jurisdiction to review, reverse, correct, or annul any order or decision of the [PUC] or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the [PUC] in the performance of its official duties ….” (Pub. Util. Code, § 1759, subd. (a).) In writ proceedings, the Court of Appeal ruled that “the PUC’s statutory authority over water quality and its exercise of jurisdiction in addressing water quality issues preempted the … actions against the regulated utilities” but did not preempt claims against the other defendants. (Hartwell, at p. 264.) The California Supreme Court granted review. (Hartwell, supra, 27 Cal.4th at p. 264.) Finding the PUC had broad constitutional and legislative authority to regulate public utilities, the high court concluded preemption is found upon answering each of the following questions in the affirmative: “(1) whether the PUC had the authority to adopt a

regulatory policy” on public health risks and the “steps the utilities should take, if any, to minimize the risk; (2) whether the PUC had exercised that authority; and (3) whether the superior court action would hinder or interfere with the PUC’s exercise of regulatory authority.” (Id. at p. 266.) The court concluded the first two prongs had been met but agreed that “some of the damage claims [against the regulated utilities] would not interfere with any ongoing PUC regulatory program.” (Id. at p. 267.) The high court wrote, “lawsuits against public utilities are barred by [Public Utilities Code] section 1759 ‘not only when an award of damages would directly contravene a specific order or decision of the commission, i.e., when it would “reverse, correct, or annul” that order or decision, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would “hinder” or “frustrate” or “interfere with” or “obstruct” that policy.’ ” (Hartwell, supra, 27 Cal.4th at p. 275.) However, the court clarified, “superior courts are not precluded from acting in aid of, rather than in derogation of, the PUC’s jurisdiction. [Citation.] Thus, a court has jurisdiction to enforce a water utility’s legal obligation to comply with PUC standards and policies and to award damages for violations.” (Ibid., italics added.) Noting that the “plaintiffs challenged both the adequacy of the [drinking water] standards and compliance with those standards,” the Hartwell court concluded the former was barred. (Hartwell, supra, 27 Cal.4th at p. 276.) The high court wrote: “An award of damages on the theory that the public utilities provided unhealthy water, even if that water actually met DHS and PUC standards, would interfere with a ‘broad and continuing supervisory or regulatory program’ of the PUC,” and would “ ‘plainly undermine the [PUC’s] policy by holding the utility liable for not doing what the [PUC] has repeatedly determined that it and all similarly situated utilities were not required to do.” (Ibid.) Notably, Hartwell determined “damage claims based on the theory that the water failed to meet federal and state drinking water standards are not preempted by [Public

discussion of [the] plaintiffs’ damages claims.” (Groundwater, at p. 668.) The court explained the issue: “Although the Supreme Court … allowed plaintiffs’ damages actions to proceed to the extent they were based on the theory that the water supplied ‘violated DHS and PUC standards,’ Hartwell did not define with precision either what standards applied or what constituted a violation of those standards.” (Id. at p. 669.) “The trial court held that ‘[t]he “numerical standards” [it would] recognize in applying the Hartwell decision [would] be those adopted by [DHS] as “maximum contaminant levels” (MCLs) and “action levels” (ALs), and prior to the adoption of MCLs/ALs[,] those numerical standards adopted by the DHS or any predecessor or similar agency … to the extent [they] were properly incorporated in California’s regulatory scheme. The Court [would] not apply any qualitative standard, such as “potable, healthful, or wholesome” …, as to do so would prospectively undermine the regulatory scheme.’ ” (Groundwater, supra, 154 Cal.App.4th at pp. 671, 673.) The Groundwater court found no error in the trial court’s approach. (Id. at pp. 679–687.) The court wrote: “If plaintiffs were permitted to have experts classify as ‘unhealthful’ water that met all applicable standards in effect at the time the water was supplied, the necessary implication of such testimony would be that the prior standards were inadequate to protect public health. Such a challenge is clearly prohibited ….” (Groundwater, supra, 154 Cal.App.4th at pp. 680–681.) A contrary ruling would “create open-ended future liability” for … water providers and would “deprive [them] of the ‘safe harbor’ provided to public utilities that comply with DHS standards.” (Id. at p. 682.) The Groundwater court rejected the plaintiffs’ contention “that any exceedance of an MCL, AL, or other numerical standard constitutes a ‘violation’ as that word was used in Hartwell” because the regulatory scheme “expressly permits DHS to allow water suppliers to continue to deliver water even after an MCL exceedance has been detected.” (Groundwater, supra, 154 Cal.App.4th at p. 685, citing § 116655, subd. (b)(1)–(6).)

3. Analysis In Hartwell, the high court concluded Public Utilities Code section 1759 would not bar the plaintiffs’ damage claims because the claims do not hinder, interfere, frustrate, or obstruct the PUC’s supervisory or regulatory policies and would not contravene any order of the PUC. (Hartwell, supra, 27 Cal.4th at pp. 267, 277–278.) For reasons discussed below, we conclude plaintiffs’ claims will not hinder, interfere, frustrate or obstruct the State Board’s supervisory or regulatory policies and will not contravene any order of the State Board. First, we conclude the remedies available to the State Board, like those available to the PUC in Hartwell, are essentially prospective in nature. The State Board may (1) issue citations for SDWA violations and provide “a date for elimination or correction of the [offending condition]” and assess daily penalties “for each day that a violation occurred, and for each day that a violation continues to occur” (§ 116650, subds. (a), (c)–(e)); (2) issue an order directing compliance and preventative action (§ 116655, subd. (a)); (3) seek injunctive relief to enjoin conduct or to direct compliance with the statutory/regulatory scheme (§§ 116660, 116670); (4) petition for the appointment of a receiver to operate a public water system (§ 116665); (5) order physical or operational consolidation of water systems or the extension of service to certain areas and communities under certain circumstances (§ 116682); and (6) contract with, or provide a grant to, an administrator to provide services to a water system and require a water system to accept such services under specified circumstances (§ 116686). We have not identified, nor has our attention been brought to, any state SDWA statute or regulation that enables the State Board to provide, or to seek, compensation for consumers who have suffered damages as a result of a water provider’s violation of the state SDWA or related regulations. Next, it is notable that in Hartwell, the plaintiffs’ damage claims were allowed to proceed even though the PUC had found as part of its investigation that the defendant water suppliers, “over the past 25 years … had provided water that was ‘ “in no way harmful or

dangerous to health” ’ and had satisfactorily complied with DHS drinking water quality requirements.” (Hartwell, supra, 27 Cal.4th at p. 263.) Because these findings were not made as part of an enforcement proceeding, or as part of broad and continuing programs related to routine matters such as ratemaking, approving new water treatment facilities, or regulating water quality, the court concluded the plaintiffs’ damage claims would not be barred by Public Utilities Code section 1759. Here, in our estimation, there is no qualitative difference between the PUC’s findings in Hartwell and the EPA and/or State Board findings in the present case related to the corrosion control optimization and compliance with lead action levels. Here, the parties have not identified any statute comparable to Public Utilities Code section 1759, which was at issue in Hartwell, that is applicable here, and we have found none. Notwithstanding, we consider whether the test for preemption set forth in Hartwell, to determine whether the test is met here and conclude it is not. If, in this matter, the trier- of-fact makes a finding that contradicts the EPA or State Board’s findings, the State Board will still be able to fully exercise its jurisdiction to employ or seek any of the remedies set forth in the state SDWA to ensure present and future compliance with said statute and related regulations. Additionally, neither the EPA nor the State Board are parties to this lawsuit and will not be bound by any such findings or by a potential damage award in favor of plaintiffs. Thus, there is no basis upon which to find preemption of plaintiffs’ claims—at least with respect to their claims for compensatory damages.12 Our conclusion in this regard is consistent with the state SDWA, which provides, in part: “The remedies provided by this chapter are cumulative and shall not be construed as restricting any remedy, provisional or otherwise, provided by law for the benefit of any party, and no judgment

under this chapter shall preclude any party from obtaining additional relief based upon the same facts.” (§ 116745.) In Groundwater and Hartwell, the plaintiffs’ claims were premised, in part, on the contention the defendant water providers violated the state SDWA by failing to provide safe drinking water even though no numerical drinking water standard was violated. This explains why Groundwater focused its attention on those standards. We do not read either case as establishing that this is the only way a water provider may be held civilly liable under the state SDWA. Rather, those factors were discussed and addressed in the context of the specific litigation before the court. The context of this case is different. Here, plaintiffs’ claims do not involve a challenge to the State Board’s drinking water standards. Plaintiffs’ claims are that (1) City was required by the State Board and the state SDWA to comply with the water supply permit issued by the City in order to supply water from the NE treatment facility; (2) City’s water supply permit required it to comply with the corrosion control protocols set forth in City’s operation plans; (3) the state SDWA prohibited City from altering or modifying those protocols absent approval by the State Board; (4) City deviated from those protocols without approval of the State Board; (5) City further violated the state SDWA by failing to monitor and report discolored water complaints to the State Board, thereby, allowing the issues underlying those complaints to go unnoticed by the State Board for 12 years and preventing the State Board from exercising oversight and implementing further appropriate controls to remedy the problem; and (6) as a result of these factors, plaintiffs’ plumbing has corroded to the point where it must now be replaced in order to receive water that does not continue to expose them to lead and other toxic elements. Hartwell and Groundwater are distinguishable from the present case, and the limitations on judicially actionable violations of drinking water standards set forth in those cases are not appropriate for application here. For this same reason, plaintiffs’ concession that they are not premising their claims on violations of numerical drinking water standards

complaints, citing sections 116450, subdivision (a), 116530, and 116275, subdivisions (b) and (c), and State Regulation section 64664, subdivisions (a) and (f). City contends the duties imposed under section 116550 and State Regulation section 64661 are discretionary, not mandatory, because “there are specific procedures for adjudicating compliance with a permit,” citing section 116625, and “the availability of discretionary amendment procedures and a hearing process for alleged violations implies a level of discretion and permissiveness distinguishable for an obligation.” This, City argues, coupled with the fact “the [L]egislature has vested ‘initial and primary’ authority in the State Board” and “corresponding responsibility, for establishing drinking water standards,” demonstrates the discretionary nature of the duties imposed on City. City argues, “ ‘if the predicate enactment confers the exercise of discretion on government officials, the use of “shall” and like words will not alone support liability under the California Tort Claims Act.’ ” “Whether an enactment creates a mandatory duty is a question of law: ‘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.’ [Citation.] The enactment’s language ‘is, of course, a most important guide in determining legislative intent, [but] there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity’s or officer’s exercise of discretion.’ ” (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499.) 1. Duties Under Section 116550 and State Regulation Section 64661 Section 116550 provides: “(a) No person operating a public water system shall modify, add to or change his or her … method of treatment of, or change his or her distribution system as authorized by a valid existing permit issued to him or her by the

[State Board][13] unless the person first submits an application to the [State Board] and receives an amended permit … authorizing the modification, addition, or change in his or her … method of treatment. [¶] (b) Unless otherwise directed by the [State Board], changes in distribution systems may be made without the submission of a permit application if the changes comply in all particulars with the waterworks standards.” (§ 116550; see § 116275, subd. (b).) State Regulation section 64661 provides similarly: “A supplier shall operate each treatment plant in accordance with an operations plan that has been approved by the State Board…. The operations plan shall be designed to produce the optimal water quality from the treatment process. The supplier shall operate its treatment plant in accordance with the approved plan.” (22 Cal. Code Regs., § 64661, subd. (a).) The duties under section 116550 and State Regulation section 64661 are stated in mandatory terms. Addressing points raised by City, the determination that DHS has “ ‘initial and primary authority, and the corresponding responsibility, for establishing drinking water standards,’ ” does not seem to us to have any bearing on whether duties imposed upon City under section 116550 are mandatory. Moreover, “the availability of discretionary amendment procedures” is discretion vested, by and large, in the State Board, not City. Absent a contrary direction from the State Board, any discretion City has under subdivision (b) of section 116550 to change its distribution system is expressly conditioned on its compliance with waterworks standards (i.e., compliance with the “regulations adopted by the state board entitled ‘California Waterworks Standards’ ” found in chapter 16, division 4, title 22 of the California Code of Regulations. (§ 116275, subd. (q).) Regulations under the California Waterworks Standards include, without limitation: State Regulation section 64556, subdivision (a)(4)(B) [requiring a water supplier to apply for an

amended domestic water supply permit prior to making any addition or change to a mandated treatment process]; and State Regulation section 64600, subdivisions (a) and (b) [providing that water systems that have been directed to develop a “Water System Operations and Maintenance Plan (Plan)” “shall operate in accordance with its State Board- approved Plan”]. Consequently, any discretion City may have had to change its distribution system under section 116550, subdivision (b), without first obtaining an amendment to its water supply permit, was conditioned upon it adhering to the water treatment protocols identified in its State Board approved operation plan(s). Absent an amendment to its permit, City had no discretion to alter or forego the water treatment protocols identified in its operation plans. We conclude City was under a mandatory duty to adhere to those protocols in operating the NE treatment facility. 2. Other Statutory and Regulatory Duties In their governing complaint, plaintiffs contend City violated section 116450 by failing “to file a report with the State when any prima[r]y drinking water standard— including in those set forth in the LCRs—is not complied with, or when a monitoring requirement is not performed.” Said statute provides, in part: “When any primary drinking water standard specified in the department’s regulations is not complied with, [or] when a monitoring requirement specified in the department’s regulations is not performed … the [operator of] the public water system shall notify the department and shall give notice to the users of that fact ….” (§ 116450, subd. (a).) Plaintiffs also alleged City violated State Regulation section 64664. That regulation provides, in part: “For each calendar month, a supplier shall submit a report to the State Board … that includes the applicable information in this section for each treatment plant.” (22 Cal. Code Regs., § 64664, subd. (a).) Among other things, “[t]he report shall include a summary of water quality complaints.” (Id., § 64664, subd. (f).) Plaintiffs contend City’s alleged failure to adhere to the reporting and notification requirements “prevented the State Board from conducting any oversight and resolving the

it “to provide corrosion control through pH adjustment and the addition of corrosion inhibitors”; (6) the fact that City’s operation plans “do not mandate that the City maintain a strict pH of 9.0 at all times”; (7) the fact that the State Board never suspended or revoked City’s water supply permit and evidence that it has never issued City a written citation, compliance order, or order to appear related to alleged violations related to plaintiffs’ claims; (8) evidence that City has complied with the AL for lead; (9) evidence the EPA determined City’s water system was optimized for corrosion control since 1996; (10) the fact that City collects samples from well sites every three years and tests for iron, which results are used to determine City’s compliance with secondary MCLs for iron; (11) the fact that the water samples taken from customer’s fixtures are not used to determine compliance with secondary MCLs for iron; (12) evidence that City complied with the secondary MCL for iron at all relevant times; and (13) the fact that “City undertook extensive efforts … to plan, study, test, build and ultimately operate” the NE treatment facility. Some of the UMFs submitted by City (e.g., the existence of an implied agreement) appear related solely to plaintiffs’ abandoned breach of contract and breach of warranty claims. Other UMFs (e.g., the lack of a written citation, cessation order, or other order to appear at an administrative hearing) are related primarily to City’s contention that only a violation of numerical drinking water standards is actionable and that absent an order to cease delivery of water, no action lies—a contention we have rejected. Still other UMFs (e.g., that plaintiffs are not seeking damages for personal injuries) appear directed toward City’s contention that the state SDWA and related enactments are not intended to protect against corrosion—again, a contention we have rejected. As we see it, plaintiffs’ negligence claim is largely based on the contention that City deviated from the corrosion control treatment protocols set forth in City’s operation plans which City’s water supply permit (and § 116550) made mandatory. The UMFs City proffered on this subject are that the State Board and EPA have determined that City’s water

system was optimized for corrosion control and that City has complied with the AL for lead and secondary MCL for iron. The contention that City complied with the secondary MCL for iron is supported solely by a conclusory statement to that effect in the declaration of Robert Little, a City Water Systems Supervisor I, and contains no supporting evidence or explanation. Yet, plaintiffs correctly note that City’s annual water quality reports for several years show samples taken during the relevant time frame exceeded the secondary MCL for iron. The contention that City has complied with the AL for lead is based on the results of City’s sampling and testing procedures as evaluated by the EPA. However, the EPA expressly stated in their 2017 LCR review of City’s water system that although City “identified sufficient Tier 1 sampling sites for lead and copper tap samples, … the sample site selections have not been updated since 1993 and may not adequately represent the portion of the service area served by the [NE treatment facility].” Notably, in its review, the EPA stated, “[t]he protocol for collecting lead and copper tap samples … generally does not include special-purpose samples [for investigations of lead and copper in tap water] unless they meet the site selection criteria in the rule.” The EPA further stated, “[t]he regulations which define Tier 1-3 sample sites do not include galvanized iron pipe among the criteria for inclusion,” although it noted that, if there are “insufficient Tier 1-3 sites,” samples may be taken from “representative sites,” which “could include galvanized iron pipe.” Finally, the EPA stated, that with few exceptions, all samples were taken from Tier 1 sites. Thus, the sampling sites utilized for the review, by and large, did not include samples taken from the residences of plaintiffs or class members—all of whom have galvanized iron pipe plumbing. The EPA and State Board’s determination that City’s water system is optimized for corrosion control was also based on those same, non-representative sampling sites. We do not view this evidence as sufficient to meet City’s burden on summary judgment with respect to the causation prong under Government Code section 815.6. City did not conclusively negate the causation element and did not establish through plaintiffs’

‘bullet-proof’ to water quality variations.” In order to maintain a stable pH throughout the distribution system, HDR recommended “a permanent finished water pH target of 9.0 be established, and that this level be maintained regardless of the treatment option selected for [the surface water].” City’s 2004 and 2011 operation plans for the NE treatment facility incorporated the target pH of 9.0 into their corrosion control provisions. When the City commenced its 2016 investigation, it hired Water Quality & Treatment Solutions, Inc. (WQTS) and Dr. Vernon L. Snoeyink to evaluate the discolored water occurrences experienced by service area residents. In a 2016 report, WQTS wrote: “Analysis of the data and information … suggests that the increase in discolored water incidents was most likely caused by the corrosion of galvanized iron pipes used either as service laterals (between the water meter and the home) or in indoor plumbing…. [I]n many of the impacted homes, the zinc layer appears to have completely corroded exposing the mild steel to the water, which then continued to corrode and release iron into the water…. [¶] … 60% of homes sampled had an average iron concentration higher than the secondary drinking water limit ….” “Virtually all … reactions relevant to metal corrosion are dependent on the pH of the water…. There are two aspects to pH that are important for corrosion considerations: First, the pH value: In general, low(er) pH values favor metal corrosion, while high(er) pH values tend to promote metal precipitation, and thus reduced metal release into the water. Second, the variability of pH: fluctuations in the pH of the water are problematic, as they do not allow the metal surface to establish a fixed protective layer.” The 2016 WQTS report reiterated the need to maintain pH in the targeted range of 9.0 and determined the pH level of water from the NE treatment facility ranged from 7.8 to 9.1 for the period 2006 through 2014. According to City’s consultants, the target pH of 9.0 “was not matched closely during the analysis period.” WQTS suggested City recommend to its residents that they replace their galvanized pipes and that City consider banning “future use of galvanized pipes in premise plumbing.”

At a community meeting conducted by City and the State Board’s Division of Drinking Water (DDW) in connection with the 2016 investigation, the DDW included a power point slide that stated, “City installed corrosion control treatment at [wellheads] PS 129, 133, 140, 168, 197, 308 and 321 during annual plant shutdown from 2006 to 2011.” Directly underneath this bullet point, the slide reads: “Violates permit and regulation that requires a revised permit and approval prior to installation of any new treatment.” Another slide from that presentation contained the following recommendation: “Stabilize water quality by bringing the chemistry of the surface water to the chemistry of the groundwater (pH, alkalinity, phosphate)” and “Move towards a galvanized pipe-free future.” DDW also found “City failed to properly track and report customer complaints” to the State Board as required and “operated in violation of [its] Water Supply Permit by installing wellhead corrosion control treatment during the annual plant shutdown without receiving approval.” The former determination was echoed in a 2016 email from a State Board representative to City. That same representative also wrote to plaintiff Karen Micheli, that the State Board “was not aware of the severity of the issues or the volume of complaints until early 2016 as they were never reported. Had they been properly reported, the [State Board] would have required a full investigation and modifications to resolve the issue.” SDWA reporting duties are designed to do just that—i.e., alert the responsible oversight agency of problems experienced by drinking water customers so that the agency can timely investigate and take whatever action may be needed to correct and resolve the issues. (Guzman v. County of Monterey (2009) 178 Cal.App.4th 983, 994.) Any failure in that regard may well have a causative dimension under the circumstances presented. We are required to liberally construe plaintiffs’ evidence and to resolve close issues in their favor. (See Regents of University of California v. Superior Court, supra, 4 Cal.5th at p. 618.) Although we have already concluded City’s evidence was insufficient to meet its burden on summary judgment on the causation issue, we also conclude plaintiffs’ evidence submitted in opposition to City’s summary judgment motion is sufficient to avoid summary

longer abatable and that the nuisance has become permanent. However, even if this argument is accepted (an issue that we do not decide on appeal), there is a counter argument that, prior to that point, the alleged nuisance, as a practical matter, was abatable and, therefore, continuing. The evidence before us does not lend itself to a determination of when a possible transition between a continuing and permanent nuisance, if any, may have occurred. Notably plaintiffs alleged in their governing complaint that “the blended [surface] water and groundwater has caused and continues to cause such corrosion and harm.” (Italics added.) This allegation signaled to City the continuing nature of the alleged nuisance. In their reply brief in support of their renewed motion for class certification, plaintiffs alerted City and the trial court that “their nuisance claim is continuing” and that they “allege a continuing nuisance.” (Emphasis in original.) Plaintiffs also raised the issue in their opposition to City’s summary judgment motion, stating, “Plaintiffs do assert a continuing (abatable) nuisance … because the injuries are abatable through remediation.” Plaintiffs were not required to address the issue in their opening brief on appeal because the trial court did not base its order granting summary judgment on statute of limitation grounds. Plaintiffs reserved their right to submit supplemental briefing on the issue if this court were inclined to affirm the judgment on grounds not relied upon by the trial court. (Code Civ. Proc. § 437c, subd. (m)(2).) Nevertheless, plaintiffs did respond to City’s argument in their reply brief on appeal. We conclude plaintiffs have not waived the issue and City was not prejudiced by any purported delay in alerting them to the fact that plaintiffs were pursuing a continuing nuisance theory. Nothing in the record compels the conclusion that plaintiffs elected to pursue a permanent nuisance theory and we are unable to conclude, as a matter of law, that the alleged nuisance was permanent in nature at any particular time prior to plaintiffs filing suit. As a result, City is not entitled to judgment or summary adjudication of plaintiffs’ nuisance claim on grounds the claim is time barred.

2. Plaintiffs’ Negligence Cause of Action City contends that undisputed material facts demonstrate plaintiffs’ negligence cause of action is time barred. According to City, undisputed facts show that plaintiffs observed “discolored water coming from the pipes in their homes” no later than 2012; that plaintiffs’ claims had accrued by that time; and that plaintiffs did not present their claims until 2016— well beyond statutory deadlines. City argues that, although the “application of the statute of limitations is normally a question of fact, it may be resolved as a question of law when uncontradicted facts are susceptible to only one legitimate inference,” citing Lyles v. State of California (2007) 153 Cal.App.4th 281, 285 (Lyles). Plaintiffs contend City, in asserting its statute of limitations defense in its summary judgment motion, had the “initial burden to produce evidence establishing it has a complete defense as to every single member of the class action, not just the class representatives.” They argue City was required to produce class-wide evidence in order to seek summary adjudication of their negligence cause of action. Plaintiffs further argue they “produced facts in this case that warrant the application of the delayed discovery rule and equitable estoppel on a class-wide basis.” They contend the damage to their plumbing was latent, and that the mere observation of discolored water coming from their taps did not “constitute awareness of the injury.” We conclude plaintiffs have better arguments. Injuries to real property are typically governed by a three-year statute of limitations. (Code Civ. Proc., § 338.) In addition, a party suing a governmental entity must adhere to the claims presentment statutes provided in Government Code section 810 et seq., unless the claim is excepted from the requirement. (Code Civ. Proc., § 313; Gov. Code, § 905.) Here, plaintiffs’ negligence claims are not of a type excepted from the claims presentment statutes (Gov. Code, § 905) and needed to be presented “not later than one year after the accrual of the cause of action” (id., § 911.2, subd. (a)). “The statute of limitations usually commences when a cause of action ‘accrues,’ and it is generally said that ‘an action accrues on the date of injury.’ [Citation.] … These

general principles have been significantly modified by the common law ‘discovery rule,’ which provides that the accrual date may be ‘delayed until the plaintiff is aware of her injury and its negligent cause.’ ” (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931, italics added; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397–398; Lyles, supra, 153 Cal.App.4th at p. 287 [“The plaintiff need only be aware of his or her injury and have knowledge of sufficient facts to place him or her on actual or inquiry notice that the injury has a negligent cause.”].) “Under the delayed discovery rule, the limitations period does not begin to run until a plaintiff discovers or could have discovered through the exercise of reasonable diligence all facts essential to her cause of action. [Citation.] … Whether reasonable diligence was exercised is generally a question of fact [citation] precluding summary judgment.” (Sylve v. Riley (1993) 15 Cal.App.4th 23, 26, fn. omitted.) “A common thread seems to run through all the types of actions where courts have applied the discovery rule. The injury or the act causing the injury, or both, have been difficult for the plaintiff to detect. In most instances, in fact, the defendant has been in a far superior position to comprehend the act and the injury. And in many, the defendant had reason to believe the plaintiff remained ignorant he had been wronged. Thus, there is an underlying notion that plaintiffs should not suffer where circumstances prevent them from knowing they have been harmed. And often this is accompanied by the corollary notion that defendants should not be allowed to knowingly profit from [the injured party’s] ignorance.” (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 831.) 3. Accrual City contends “the date of accrual for [plaintiffs’] claims was the day each of them observed discolored water coming from their pipes. This was direct, obvious evidence of their alleged injury.” Plaintiffs argue the discolored water was not the injury, “it is the extent of corrosion inside the galvanized pipes (latent property damage) from the City’s water.” Plaintiffs’ argument has merit.

City relies on Lyles, in which the plaintiffs sued the state for property damage “caused by an inadequate drainage system” that allowed rainstorm water to flood their property. (Lyles, supra, 153 Cal.App.4th at pp. 284, 285.) Because plaintiffs waited more than three years to file suit, the trial court sustained the state’s demurrer and entered judgment in the state’s favor. (Id. at p. 284.) On appeal, the Lyles court rejected the plaintiffs’ delayed discovery argument, distinguishing latent damage cases from patent damage cases: “[I]n a patent property damage case, wrongful cause of the damage is inherently possible or suspect enough to require a reasonable, prompt investigation.” (Id. at p. 288.) “[T]he discovery rule has been applied in property damage cases involving latent defects. [Citations.] … ‘In the case of … latent defects the statute of limitations begins to run only when “noticeable damage occurs.” ’ ” (Ibid.) Unlike Lyles, this is not a patent property damage case. We agree with plaintiffs that water discoloration is not the alleged injury and did not constitute notice, as a matter of law, to plaintiffs that their plumbing was being damaged. All other things being equal, a lay person experiencing discolored water episodes might reasonably believe the water delivered to it was discolored at its source or in City’s water distribution system. With regard to the majority of plaintiffs, the evidence City proffered in support of its limitations argument was largely limited to the date plaintiffs first saw discolored water come from their taps. The latest of those dates was in 2012. In declarations, these plaintiffs described the water as “discolored, rusty water” or “discolored orange water,” and at deposition some plaintiffs used phrases such as “orange-brown rust color,” “rust-orange color,” or similar phrases to describe the water. Plaintiffs submitted evidence that certain plaintiffs were asked at deposition if they knew their plumbing had been damaged, and the responding plaintiffs denied such knowledge.21 Several of these plaintiffs were assured by

City the water was safe. City’s evidence does not demonstrate, as a matter of law, that these plaintiffs were aware their galvanized plumbing had been damaged by City water. And, without notice that their plumbing was damaged, plaintiffs were not required to conduct a reasonable investigation to determine a negligent cause of damage they did not know they suffered. Notably, this case shares attributes of other cases wherein the delayed discovery rule was applied. The injury or the act causing the injury was difficult to detect because the interior of plaintiffs’ galvanized iron-pipe plumbing was hidden from view; City was in a far better position to comprehend the injury and the act or omission that caused it (as a result of its superior knowledge of the NE treatment facility processes and its interim sample water tests); and City appears to have been aware that plaintiffs did not understand why they were receiving discolored water. (See April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at p. 831.) City’s evidence is undoubtedly relevant to the limitations issue. But it does not allow this court to determine, as a matter of law, either a date certain or an approximate date upon which plaintiffs’ claims accrued and the statute of limitations began to run. Noting that “[t]he evidence proffered by City in support of its motion for summary judgment[] … on grounds the claims are time barred includes different evidence specific to each plaintiff,” we ordered the parties to brief “whether the motion should be interpreted as seeking summary judgment or summary adjudication of each individual plaintiff’s claim in addition to seeking summary judgment or summary adjudication of the cause of action in its entirety.” In response, City provided no argument or authority to suggest we should treat the motion as such and, instead, only argued the evidence was sufficient to bar all of plaintiffs and class members’ claims. This is tantamount to a concession that City did not intend its motion to be treated as such, and the failure to address the issue upon our

supported by substantial evidence.” Plaintiffs further contend City’s reliance on San Jose and Malmquist is misplaced and those cases do not support reversal of the class certification order. For reasons discussed below, we affirm the class certification order. A. Class Certification Requirements and Standard of Review Authority for class action lawsuits is found in section 382 of the Code of Civil Procedure, which reads, in relevant part: “[W]hen the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” Our state Supreme Court has “articulated clear requirements for the certification of a class. The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. [Citations.] ‘In turn, the “community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” ’ ” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).) “On review of a class certification order, an appellate court’s inquiry is narrowly circumscribed. ‘The decision to certify a class rests squarely within the discretion of the trial court, and we afford that decision great deference on appeal, reversing only for a manifest abuse of discretion: “Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification.” [Citation.] A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions.’ ” (Brinker, supra, 53 Cal.4th at p. 1022.) “We review the trial court’s actual reasons for granting or denying certification; if

they are erroneous, we must reverse, whether or not other reasons not relied upon might have supported the ruling.” (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 530.) B. Cases Cited by City In San Jose, plaintiffs sued the city on their own behalf and on behalf of all property owners within the flight pattern of the municipal airport, seeking damages for “diminution in the market value of their property” resulting from “aircraft noise, vapor, dust, and vibration.” (San Jose, supra, 12 Cal.3d at pp. 452–453.) The trial court found the action appropriate for class treatment and certified the class. (Id. at p. 453.) Our state Supreme Court reversed, explaining that “landing or departure may be a fact common to all, [but] liability can be established only after extensive examination of the circumstances surrounding each party.” (Id. at p. 461.) The court observed the diverse, potential class would include owners of “industrial plants, public buildings, body shops, warehouses, gas stations, office buildings, multi-unit apartments, single family residences, and vacant land— some being farmed” and that the “region is bisected by a major thoroughfare and bounded by a highway” and included a portion of a “railroad right-of-way.” (Ibid.) The court wrote: “Development, use, topography, zoning, physical condition, and relative location are among the many important criteria to be considered. No one factor, not even noise level, will be determinative as to all parcels.” (Ibid.) The San Jose court reaffirmed the rule announced in Weaver v. Pasadena Tournament of Roses (1948) 32 Cal.2d 833, 838–840, 842–843) that “a class action cannot be maintained where each member’s right to recover depends on facts peculiar to his case” and remarked “the community of interest requirement is not satisfied if every member of the alleged class would be required to litigate numerous and substantial questions determining his individual right to recover following the ‘class judgment’ determining issues common to the purported class.” (San Jose, supra, 12 Cal.3d at p. 459.) The San Jose court rejected the plaintiffs’ attempt to avoid the Weaver rule by dividing the properties into subclasses

concluding, among other things, “the scheme is incompatible with the fundamental maxim that each parcel of land is unique.” (Id. at p. 461.) As a result, City contends San Jose stands for the proposition that “class treatment for nuisance and inverse condemnation claims is inappropriate because claims are ‘based on defendant’s activities that inflict individualized property damage upon unique parcels of property.’ ” In Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319 (Sav-On), the high court clarified that class members’ claims need not be “uniform or identical.” The Sav‑On court commented on its holding in San Jose. Noting it had remarked that “the general rule ‘that a class action cannot be maintained where each member’s right to recover depends on facts peculiar to his case … remains viable in this state,” it clarified: “[R]eading this categorical extract out of context would misstate the established legal standard for commonality, which … is comparative. Our holding in San Jose was, in fact, expressly comparative (see San Jose, supra, at p. 460 [comparing ‘the issues which may be jointly tried’ with ‘those requiring separate adjudication’]), and we consistently have adhered to that approach.” (Sav-On, at pp. 338, 339, fn. omitted.) In our view, San Jose did not establish a rule excluding all claims affecting real property from potential class action treatment. Unlike San Jose, here, the subclasses certified by the trial court all involve “residential, single family real property” with galvanized plumbing. Thus, the diversity of uses prevalent in San Jose are absent here and the range of individual issues appear far less than in San Jose. The high court’s clarifying statements in Sav-On reveal that a core consideration for class certification remains whether common issues predominate over individual issues. Malmquist involved claims similar to those in the case at bar. There, the plaintiff filed a complaint against the City of Folsom for nuisance, alleging the city “failed to maintain proper corrosion control measures” at its water treatment plant and the corrosive water caused “pinhole leaks damaging [city] residents’ properties that are plumbed with copper piping.” (Malmquist, supra, 101 Cal.App.5th at p. 1191.) The plaintiff proposed a

subclass of “ ‘[a]ll class members who have had a pinhole leak manifest in copper piping.’ ” (Ibid.) The trial court denied certification after determining the very reports the plaintiff relied upon showed the “pitting and pinhole leaks may be caused by factors other than water composition” and, for the most part, only identified the possibility that water corrosivity was to blame while, at the same time, concluding corrosivity “ ‘ “was … likely a contributing factor to the sudden increase of pinhole leaks throughout the [City’s] system.” ’ ” (Id. at pp. 1193, 1194, italics omitted.) Moreover, the author of one of the reports relied upon by the plaintiff “found that, even if pH had been properly controlled, pitting was still likely to have occurred eventually.” (Id. at pp. 1194–1195.) In addition, the city produced an expert declaration in which the expert analyzed 12 representative pipe specimens and concluded the damage to those pipes was due to poor workmanship. (Id. at p. 1195.) The Court of Appeal affirmed the trial court’s order denying class certification. (Id. at p. 1205.) There are differences between the facts in Malmquist and those in the case before us. Here, the reports relied upon by plaintiffs appear to contain a greater level of certainty with regard to the effects of corrosivity on service area residents’ galvanized plumbing, stating water discoloration was “most likely” caused by corrosion, as opposed to other factors. And, whereas the very reports relied upon by the Malmquist plaintiff appear to contain contradictory conclusions or conclusions that undermined the plaintiff’s case. Here, the parties have not identified any contradictory or undermining conclusions in the reports relied upon by plaintiffs—both of which were prepared prior to litigation. (City did produce, however, post-litigation declarations and expert reports that it contends contradict the reports relied upon by plaintiffs. We discuss those, post.) More importantly, the fact that a judge, when presented with similar facts, has decided a case differently is not the test for abuse of discretion. Generally speaking, a discretionary determination will be upheld so long as it is within the bounds of reason even if another judge or court might have ruled differently. (Bustos v. Global P.E.T., Inc. (2017)

The trial court’s characterization of these variations as “minor” is apt and the court’s typicality analysis does not warrant a reversal of the class certification order. D. Predominance “The ‘ultimate question’ the element of predominance presents is whether ‘the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.’ ” (Brinker, supra, 53 Cal.4th at p. 1021.) “ ‘As a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.’ ” (Id. at p. 1022.) “However, … class treatment is not appropriate ‘if every member of the alleged class would be required to litigate numerous and substantial questions determining his individual right to recover following the “class judgment” ’ on common issues.” (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 28.) “Predominance is a factual question; accordingly, the trial court’s finding that common issues predominate generally is reviewed for substantial evidence. [Citation.] We must ‘[p]resum[e] in favor of the certification order … the existence of every fact the trial court could reasonably deduce from the record….’ ” (Brinker, supra, 53 Cal.4th at p. 1022.) In its class certification ruling, the trial court made the following comment in discussing the commonality of class member claims: “[T]he City’s own investigation concluded that use of surface water was the likely cause of the harm to plaintiffs’ pipes.” City contends this conclusion is not supported by the pages of the preliminary 2016 WQTS report cited by the court. We disagree. The executive summary of the 2016 WQTS report reads, in part: “In 2004, the City brought online the [NE treatment facility] …. Since the introduction of the treated [NE treatment facility] water into the distribution system, the City has received increased customer reports about water discoloration ….” “Analysis of the data and information gathered by the City suggests that the increase in discolored water incidents was most likely

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CITY OF FRESNO,

CITY OF FRESNO,

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