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The following is a TELEPHONIC, ruling for 8/22/02,
Department 24, the Honorable DANA M. SABRAW presiding.

Case Number GIN015280

 

MACY vs CITY OF ESCONDIDO
(D-DEMURRER) EPP

DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IS GRANTED.

DEFENDANT'S GENERAL DEMURRER TO THE FIRST CAUSE OF ACTION FOR DECLARATORY RELIEF BASED ON FAILURE TO STATE A CAUSE OF ACTION IS OVERRULED. PLAINTIFFS HAVE ALLEGED FACTS ESTALIBLISHING THE EXISTENCE OF AN ACTUAL CONTROVERSY SUFFICIENT TO WITHSTAND A GENERAL DEMURRER. BY THIS ACTION, PLAINTIFFS SEEK TO CHALLENGE THE CONSTITUTIONALITY OF THE CITY'S ALLEGED DECISION TO UTILIZE HYDROFLUOROSICILIC ACID AT EXCESSIVE QUANTITIES IN THEIR PLAN OF WATER FLUORIDATION.

DEFENDANT'S GENERAL DEMURRER TO THE SECOND CAUSE OF ACTION FOR INJUNCTIVE RELIEF BASED ON A FAILURE TO STATE A CAUSE OF ACTION IS OVERRULED. PLAINTIFFS HAVE PLED SUFFICIENT FACTS TO ALLEGE DEFENDANT IS THREATENING AN ILLEGAL EXPENDITURE OF PUBLIC FUNDS, BY ITS PLAN TO UTILIZE HYDROFLUOROSILIC ACID IN THE CITY'S WATER SUPPLY.
DEFENDANT CITES TO NO AUTHORITY WHICH REQUIRES THAT THE FUNDS ACTUALLY HAVE BEEN EXPENDED BEFORE PLAINTIFFS CAN SEEK INJUNCTIVE RELIEF PURSUANT TO CCP SECTION 526a. DEFENDANT'S ARGUMENT THAT ANY EXPENDITURE MADE "TO PREVENT TOOTH DECAY AND TO COMPLY WITH STATE MANDATES ARE NOT ILLEGAL EXPENDITURES" IGNORES PLAINTIFFS' ALLEGATIONS THAT THE SPECIFIC PLAN OF FLUORIDATION TO BE IMPLEMENTED BY THE CITY IS UNCONSTITUTIONAL.

DEFENDANT'S SPECIAL DEMURRER TO THE SECOND AMENDED COMPLAINT BASED ON UNCERTAINTY IS SUSTAINED WITH TEN DAYS LEAVE TO AMEND TO ALLEGE THE OPERATIVE FACTS AGAINST THE STATE OF CALIFORNIA SEPARATE FROM THE OPERATIVE FACTS AGAINST THE CITY OF ESCONDIDO. PLAINTIFFS ARGUE IN THEIR OPPOSITION BRIEF THAT THE SECOND AMENDED COMPLAINT NO LONGER ALLEGES THE CITY IS LIABLE AS A RESULT OF ITS IMPLEMENTATION OF STATE-MANDATED FLUORIDATION OF ITS WATER SUPPLY. INSTEAD, PLAINTIFFS CLAIM THEIR ACTION AGAINST THE CITY IS BASED ON THE SPECIFIC MANNER IN WHICH THE CITY HAS DECIDED TO IMPLEMENT FLUORIDATION. THE ALLEGATIONS OF THE SECOND AMENDED COMPLAINT, HOWEVER, APPEAR TO ALLEGE BOTH THEORIES OF LIABILITY AGAINST THE CITY. (SEE E.G., PARA. 55(a) AND (c)).

THEREFORE, TO CLARIFY WHICH OF THE THEORIES OF LIABILITY APPLY TO THE CITY, PLAINTIFFS ARE ORDERED TO SEPARATE THE ALLEGATIONS WHICH PERTAIN TO THE STATE FROM THOSE PERTAINING TO THE CITY EITHER BY SEPARATING THE ALLEGATIONS IN SECTION III OF THE SECOND AMENDED COMPLAINT, ENTITLED "FACTUAL ALLEGATIONS," OR BY ALLEGING SEPARATE CAUSES OF ACTION AGAINST EACH NAMED DEFENDANT. IN ITS CURRENT FORM, THE SECOND AMENDED COMPLAINT CANNOT BE ADEQUATELY RESPONDED TO BY THE CITY.

IF THE PARTIES WISH TO ORALLY ARGUE THIS MOTION, THEY ARE REQUIRED TO CONTACT THE COURT AT (760) 806-6346 AND OPPOSING PARTIES WITHIN TWO COURT DAYS FOLLOWING THIS TENTATIVE RULING DATE. PARTIES WILL BE REQUIRED TO FILE A DECLARATION PROVING NOTICE GIVEN. IF ORAL ARGUMENT IS REQUESTED IT WILL BE HEARD FRIDAY, AUGUST 30, 2002 AT 1:30 P.M. IN DEPARTMENT 24.



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