Mateel Environmental Justice Foundation v. Edmund A. Gray Co.

In this case, plaintiff alleged that plumbing parts distributed by defendants discharge lead into drinking water. On a motion for summary judgment, defendants asserted that a Tier 1 test for lead in drinking water exists, the trial court agreed that a Tier 1 test exists, and the trial court granted summary judgment because plaintiff had not performed a Tier 1 test. We disagree with the trial court’s conclusion that the test put forward by the defendants is a Tier 1 test. Consequently, we reverse the judgment for defendants and remand for the trial court to consider whether the tests plaintiffs actually performed qualify under any of the tiers provided by Proposition 65’s regulations.

Factual and Procedural Background^[1]

Defendants Edmund A. Gray Co., Grinnell Corporation, and Thrifty Supply Company (collectively Plumbing Distributors) are distributors of galvanized plumbing parts in California. Galvanization is a process in which steel is dipped in a hot zinc bath. As the zinc cools, it forms a thin coating. The zinc coating protects against rust and corrosion. However, according to an expert for plaintiff Mateel Environmental Justice Foundation (Mateel), when lead is present in a galvanizing bath, it moves to the surface of the zinc coating as the zinc cools. Consequently, the galvanized steel may have small islands of lead on its surface.

Mateel sued five plumbing distributors. It contended in its first two causes of action that the distributors had violated the discharge and warning provisions of Proposition 65 by selling plumbing parts that discharge lead into drinking water and by failing to warn consumers of this exposure. In a third cause of action, Mateel alleged that these Proposition 65 violations were unlawful business practices under the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.).

The trial court trifurcated the case. The first stage was confined to determining whether Mateel could prove that a discharge of lead had occurred. Shortly before the first-stage trial, the Plumbing Distributors filed separate motions for summary adjudication of plaintiff’s various claims. With

With respect to the UCL discharge claim, the Plumbing Distributors argued that Mateel had no evidence their products discharged lead. In particular, they argued that under California Code of Regulations, title 22, section 12901 (Regulation 12901), Mateel was required to show the existence of lead discharged frorh defendants’ products by means of a state-approved methodology, if one existed. According to the Plumbing Distributors, such a test existed: the Lead and Copper Rule (Cal. Code Regs., tit. 22, § 64670 et seq.).^[2] Mateel responded by submitting seven tests of its own, each purporting to show that defendants’ products discharged lead into drinking water. Mateel argued that it was not required by Regulation 12901 to employ a state-approved methodology if one existed, that its tests were sufficient to show a discharge, and that, in any event, the Lead and Copper Rule was not a state-approved methodology for detecting lead discharged from individual plumbing parts.

The trial court agreed with the Plumbing Distributors on all issues. It concluded that as a matter of law a state-approved methodology had to be employed if one existed, that the Lead and Copper Rule was such a methodology, that Mateel failed to submit evidence that lead had been detected using the Lead and Copper Rule, and thus that the Plumbing Distributors were entitled to summary judgment.

Mateel has timely appealed, challenging only the ruling on its UCL discharge claim. On appeal, we granted the Attorney General leave to file an amicus curiae brief and appear at oral argument.

Discussion

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.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary adjudication of a cause of action must show either that one or more elements of the cause of

We review a summary judgment motion de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Galanty v. Paul Revere Life Ins. Co. (2000) 23 Cal.4th 368 , 374 [ 97 Cal.Rptr.2d 67 , 1 P.3d 658 ]; Code Civ. Proc., § 437c, subd. (c).) We are not bound by the trial court’s stated reasons or rationales. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870 , 878 [ 116 Cal.Rptr.2d 158 ].) “In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court’s determination of a motion for summary judgment.” (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073 , 1079 [ 72 Cal.Rptr.2d 121 ].) Thus, we independently determine the construction and effect of the facts presented to the trial judge as a matter of law. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505 , 1511-1515 [ 285 Cal.Rptr. 385 ].) Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party. (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103 , 112 [ 54 Cal.Rptr.2d 669 ]; WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702 , 1709 [ 50 Cal.Rptr.2d 323 ].)

With these principles in mind, we consider the propriety of the summary judgment entered by the trial court.

Proposition 65

was designed, in pertinent part, to regulate the discharge or release of cancer-causing chemicals (carcinogens) and reproductive toxins (teratogens) into drinking water. (Health & Saf. Code, §§ 25249.5-25249.13;^[3] People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294 , 298 [ 58 Cal.Rptr.2d 855 , 926 P.2d 1042 ].) Under section 25249.5, the discharge prohibition, “No person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or

Section 25249.9 sets out several affirmative defenses. Of relevance here, “Section 25249.5 shall not apply to any discharge or release that meets both of the following criteria: ffl(l) The discharge or release will not cause any significant amount of the discharged or released chemical to enter any source of drinking water; [f](2) The discharge or release is in conformity with all other laws and with every applicable regulation, permit, requirement, and order.” (§ 25249.9, subd. (b).) Proposition 65 defines “significant amount” as “any detectable amount except an amount which would meet the exemption test in subdivision (c) of Section 25249.10 if an individual were exposed to such an amount in drinking water.” (§ 25249.11, subd. (c).) The burden for showing this affirmative defense is on the defendant: “In any action brought to enforce Section 25249.5, the burden of showing that a discharge or release meets the criteria of this subdivision shall be on the defendant.” (§ 25249.9.)

Thus, Proposition 65 establishes a series of shifting burdens. In the first instance, a plaintiff must show that a discharge has occurred. Once this burden has been met, the defendant may show, inter alia, that the amount of the discharge is not significant. We deal here only with plaintiff’s initial burden of proving a discharge under section 25249.5.

IE. The Lead and Copper Rule Is Not a Tier 1 Test for Lead from Sources Other Than Public Water Systems

A. Regulation 12901

A “discharge” is not defined by Proposition 65, but is defined by the regulations adopted by the California Health and Welfare Agency (HWA)^[5] to

Under Mateel’s and the Attorney General’s interpretations, a defendant seeking summary judgment must produce its own test that shows no detected amount of the toxin. This is the traditional Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242 [ 91 L.Ed.2d 202 , 106 S.Ct. 2505 ] approach to a summary judgment, in which the defendant presents evidence on a material issue and puts plaintiff to the test of coming forward with contradictory evidence. The Plumbing Distributors have not employed this approach; they have not submitted their own negative test results as part of their motion for summary judgment.

Under the Plumbing Distributors’ interpretation, a second approach is available: a defendant may show simply that a test from a specific tier exists, and that plaintiff has not produced a positive test from that tier. This approach is a variation on the Celotex Corp. v. Catrett (1986) 477 U.S. 317 [ 91 L.Ed.2d 265 , 106 S.Ct. 2548 ] approach, as recently approved in California by Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 845-855, under which a defendant points to an element of plaintiff’s case and demonstrates that the plaintiff will be unable to come forward with evidence to substantiate that element. (See id. at p. 854.)

However, even if the Plumbing Distributors’ interpretation of Regulation 12901 were correct—and we expressly do not decide whether this is so— summary judgment would only be available once the defendant established that a test from a specific tier within the hierarchy exists. The Plumbing Distributors have pointed to a specific test, the Lead and Copper Rule, which they contend is a Tier 1 test, and have tried to show that Mateel’s tests are not Tier 1 tests. We conclude that the Lead and Copper Rule is not a Tier 1 test; therefore, the Plumbing Distributors have failed to meet their summary judgment burden even under their own interpretation of Regulation 12901.

B. The Lead and Copper Rule

The Lead and Copper Rule (Regs., § 64670 et seq.) was adopted by the California Department of Health Services to monitor and address lead and copper levels in public drinking water distribution systems. It establishes a

Consequently, the trial court erred in granting summary judgment on the ground that the Plumbing Distributors had shown a Tier 1 test to exist and Mateel had failed to conduct a Tier 1 test. It remains possible that a Tier 1 test for lead in water does exist. For example, the Lead and Copper Rule requires that “[a]nalyses for lead ... be conducted using the methods as prescribed at 40 Code of Federal Regulations, Section 141.89.” (Regs., § 64672, subd. (a).) In turn, the Code of Federal Regulations identifies specific methods for lead detection that may well apply generally to the detection of lead in water and may well qualify as either Tier 1 or Tier 2 tests. ( 40 C.F.R. §§ 141.89 , 141.23 (k)(l).)^[7] However, the Plumbing Distributors did not attempt to prove that these methods were Tier 1 or 2 tests, nor did they attempt to prove that Mateel had failed to comply with one or more of these methodologies. Instead, they rested their argument on the Lead and Copper Rule as a whole. Because the Lead and Copper Rule does not qualify as a Tier 1 test for purposes of these allegations, summary judgment on this basis cannot stand.

IV. The Trial Court Must Rule in the First Instance on the Plumbing Distributors’ Evidentiary Objections and Whether Any ofMateel’s Tests Qualify as a Method of Analysis

In the alternative, the Plumbing Distributors propose that summary judgment was proper because several of Mateel’s tests were inadmissible. We will remand this case to the trial court to consider these evidentiary matters in the first instance.

In the trial court, the Plumbing Distributors moved to exclude four of the seven tests performed by Mateel: the Hovanec test, the NSF test, the Exhibit 9 test, and the Exhibit 10 test. They argued that these tests failed to satisfy the standards for scientific reliability imposed by the Kelly rule. (People v. Kelly (1976) 17 Cal.3d 24 [ 130 Cal.Rptr. 144 , 549 P.2d 1240 ]; see Frye v. U.S. (D.C. Cir. 1923) 54 U.S. App. D.C. 46 [ 293 F. 1013 ].)^[8] The trial court granted this motion, but the record demonstrates that it did not do so on Kelly grounds. At an April 23, 2002, hearing, Mateel sought clarification of the basis for the exclusion. The trial court confirmed that it excluded the tests based on Mateel’s purported failure to comply with Regulation 12901. In other words, it excluded the tests because it concluded that the Plumbing Distributors had shown a Tier 1 test existed (the Lead and Copper Rule), and thus the results of any test which was not a Tier 1 test were irrelevant.^[9]

Generally, we review the trial court’s ruling on the admissibility of expert testimony for an abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238 , 266 [ 14 Cal.Rptr.2d 377 , 841 P.2d 897 ].) However, when the exclusion of expert testimony rests on a matter of statutory interpretation, we apply de novo review. (Plunkett v. Spaulding (1997) 52 Cal.App.4th 114 , 126 [ 60 Cal.Rptr.2d 377 ], disapproved on other grounds by Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31 , 39-40 [ 91 Cal.Rptr.2d 293 , 989 P.2d 720 ].) As discussed ante, we disagree with the trial court’s interpretation of Regulation

The Plumbing Distributors invite us to decide whether the challenged tests are admissible under Kelly. We decline. When a trial court finds it unnecessary to rule on evidentiary objections, “it is not the function of an appellate court to make such evidentiary rulings in the first instance.” (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225 , 235 [ 114 Cal.Rptr.2d 151 ].) Thus, while we review a trial court’s ruling, not its rationale, and will not reverse a correct ruling issued for the wrong stated reason (Mayer v. C.W. Driver (2002) 98 Cal.App.4th 48 , 64 [ 120 Cal.Rptr.2d 535 ]), it is not for us to determine whether the trial court’s ruling might still be correct on a factual and evidentiary basis not yet considered by it. That task is reserved for the trial court.

Our analysis of the Lead and Copper Rule requires that this matter be remanded for further proceedings. On remand, the trial court must reconsider the Plumbing Distributors’ motions in limine and determine whether the four challenged tests are admissible under Kelly. Provided that one or more of Mateel’s tests is admissible under Kelly, the motion for summary judgment must be denied.

To assist the trial court on remand, we address one final issue. The Plumbing Distributors contend that Mateel’s tests are categorically invalid because they were not performed on drinking water, as opposed to any other water, and Regulation 12901 requires that tests be performed for the listed chemical in a “specific medium.” Nothing in Regulation 12901 or the supporting Final Statement of Reasons supports such a narrow construction of the phrase “specific medium.” In particular, Regulation 12901 defines a method of analysis as a “method of detection or detection and calculation for a listed chemical in a specific medium, including, but not limited to, water, air, food, or soil . . . .” (Regs., § 12901, subd. (a), italics added.) The examples given show that “water” is a specific medium under Regulation 12901, and that a test for lead in “water” will qualify as a method of analysis so long as it meets the other requirements of Regulation 12901.^[10] Mateel’s tests are not categorically invalid for any alleged failure to use “drinking water.”