Los Angeles Fluoride Lawsuit
Notice of Hearing and Statement of Facts

 

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NOTICE OF HEARING ON DEMURRER AND DEMURRER TO THE COMPLAINT

JAMES K. HAHN, City Attorney
THOMAS C. HOKINSON, Chief Assistant
City Attorney for Water and Power
S. DAVID HOTCHKISS (Bar No. 076821)
111 North Hope Street, Suite 340
P. O. Box 51111
Los Angeles, California 90051-0100
Telephone: (213) 367-4579

Attorneys for Defendants LOS ANGELES CITY
COUNCIL and DEPARTMENT OF WATER AND
POWER

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

LOS ANGELES CITIZENS FOR SAFE
DRINKING WATER. PAUL
BORRACCIA, DOUGLAS CRAGOE,
MICHAEL DELANEY, NANCY MILLER,
DAVID MORGAN, ALAN SIMMONS,
CLIFFORD STERN, HOWARD O.
WATTS,

Plaintiffs,

vs.

LOS ANGELES CITY COUNCIL,
DEPARTMENT OF WATER AND
POWER, and DOES 1-20, inclusive,

Defendants
_______________________________________

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CASE NO. BC 207490
[Assigned to Judge Reid]
Date: May 28, 1999
Time: 8:15a.m.
Place: Dept 55

NOTICE OF HEARING ON DEMURRER AND DEMURRER TO THE COMPLAINT

Discovery Cut-off. By Statute
Motion Cut-off: By Statute
Defendants Trial Date: None

TO: PLAINTIFFS AND THEIR ATTORNEY ON RECORD:

PLEASE TAKE NOTICE that on May 28, 1999 at 8:15 a.m., or as soon as

thereafter after as counsel may be heard in Department 58 of the Los Angeles Superior Court,

located at 111 North Hill Street, Los Angeles, California 90012, defendants Los Angeles City

Council and Los Angeles Department of Water and Power, for themselves alone and on behalf

of no other defendant, will and hereby demur to the complaint in the above-entitled matter.

Defendants' demurrer is based on the following grounds:

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1. The complaint does not state facts sufficient to constitute a cause

of action in that mandamus or other extraordinary relief is not available to control the manner in

which a public official's discretion is exercised.

2. The complaint does not state facts sufficient to constitute a cause of

action in that an injunction will not lie to prevent the execution of a public statute, by officers of

the law, for the public benefit. Health and Safety Code section 116410 is a public health statute.

3. The complaint does not state facts sufficient to constitute a cause of

action in that plaintiffs' claims are barred by the 60-day statute of limitation set forth in Civil

Code section 860. Defendant Los Angeles Department of Water and Power passed its

resolution supporting the fluoridation of the City's water supplies on January 3, 1996.

4. The complaint does not state facts sufficient to constitute a cause of

action in that the complaint, violates the separation of powers doctrine. The court may not

inquire into the thought processes of legislators.

5. The complaint, does not state facts sufficient to constitute a cause of

action in that it is uncertain. Limitation on public debate is allowed under the Ralph M. Brown

Act, Government Code section 54954.3 subd. (b).

6. The complaint does not state facts sufficient to constitute a cause of

action in that the City of Los Angeles is obligated to comply with state law which implicate

statewide concerns such as public health.

 

WHEREFORE, defendants pray that:

1. Plaintiffs take nothing by this action;

2. That defendants' demurrer be sustained without leave to amend;

3. That this matter be dismissed with prejudice; and

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Table 64434-A
Water System Priority Funding Schedule

 SYSTEM NO.  SYSTEM NAME  PRIORITY
 1910067  Los Angeles, City of  16..."

STATEMENT OF FACTS

More than three years after the Department adopted its resolution supporting the

fluoridation of the City's water supply, plaintiffs have initiated the instant lawsuit styling it a

complaint for validation pursuant to Code of Civil Procedure section 860 et seq., and injunctive

relief. (Complaint, page 1) The plaintiffs are an unincorporated association named Los

Angeles Citizens for Safe Drinking Water and eight resident ratepayers of water bills,

(Complaint, para. 2, 4.)

On October 26, 1998, the Chief Administrative Officer for the City of Los Angeles

approved a contract for this Department's purchase of fluoride and recommended it for City

Council approval. (RJN 3.) On December 7, 1993, the chemical contract was sent to the City

Council's Commerce, Energy and Natural Resources Committee for approval, On December

15, 1998, the Committee approved the Department of Water and Power chemical contract and

submitted that contract for a vote before the full Council. (Complaint, para. 13-15, RJN 4.)

On January 12, 1999, the chemical contract came up for a vote before the City

Council at which public input was allowed. On January 19, 1999, the chemical contract for

the Department of Water and Power, including the purchase of fluoride necessary to comply

with Health and -Safety Code Section 116410, was approved. Plaintiffs contend that the public

commentary oil the January 19, 1999 City Council meeting was neither informed nor

meaningful. Plaintiffs also contend that the discussion by City Council members was neither

informed nor meaningful. Plaintiffs assert that the contract and its approval is invalid, in

excess of the City's jurisdiction, an abuse of discretion and in violation of applicable laws.

(Complaint, para. 16-18.) Plaintiffs seek to enjoin the fluoridation of the City's water supply,

$150,000 in damages, costs, and attorney's fees. (Complaint, page 17.)

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A demurrer tests the legal sufficiency of the complaint. In evaluating a demurrer,

a court accepts plaintiffs' facts properly pleaded in a complaint as true, but "it does not admit

contentions, deductions, or conclusions of fact or law alleged therein." Daar v. Yellow Cab Co.

(1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591. In ruling on a

demurrer, a court may properly take judicial notice of statutes, legislative acts, and other

matters which are subject to judicial notice under the Evidence Code. People v. Oakland

Water Front Co. (1897) 118 Cal, 234, 245 County of Fresno v. Lehman (1991) 229

Cal. App. 3d. 340,344-5. Accordingly, a demurrer should be sustained if there is no factual

basis for relief under any theory reasonably contemplated by the pleadings. Sher v. Leiderman

(1986) 181 Cal.App 3d. 867, 885. Given the foregoing standard of review, plaintiffs' complaint

is barred by well established law.

 

I.
MANDAMUS IS NOT AVAILABLE TO CONTROL
THE MANNER IN WHICH A PUBLIC OFFFICIAL'S
DISCRETION IS EXERCISED

A writ of mandate under Code of Civil Procedure Section 1085 may issue against

a public officer. Two basic requirements ale essential to the issuance of a writ a clear,

present and usually ministerial duty upon the part of the respondent and a clear, present and

beneficial right in the petitioner to the performance of that duty. Venice Town Council v. City

of Los Angeles (1996) 47 Cal.App.4th 1547, 1558. However, a petitioner may not by writ of

mandate under Code of Civil Procedure section 1085 seek to control the manner in which a

public official's discretion is exercised, Parker v. Dumke (1981) 117 Cal.App.3d. 237, 243.

The plaintiffs here ask the court to do precisely what the law does not allow: substitute its

discretion for that of the California Legislature, the City Council of the City of Los Angeles and

the Board of Water and Power Commissioners.

As noted, supra the Legislature has mandated the fluoridation of public water

systems in California "[i]n order- to promote the public health through the protection and

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(…missing sentence…)

following enactment of this law that they have sought judicial review to challenge its legality or

constitutionality instead plaintiffs have chosen Civil Code section 860 as a vehicle to

challenge the implementation of this law. They seek to enjoin the City of Los Angeles and its

Department of Water and Power from implementing the clear mandate of the Legislature to

fluoridate the City's water supply.

 

Section 860 has a very limited statute of limitation of 60 days. As noted, supra,

the Department passed its resolution authorizing fluoridation of the City's water supply on

January 3,1996. (RJN 2.). Plaintiffs make no allegation that within the 60 days following the

adoption of that resolution they initiated any action whatsoever to invalidate the Board's action

pursuant to section 860. Plaintiffs have waited 3 years and now seek to frustrate the Board's

implementation of state law by seeking to enjoin the fluoridation of the City's water system.

Plaintiffs' action is too little, too late. They may not frustrate the implementation of state law

and the Legislature's express public health directives by invoking the jurisdiction of this court.

An injunction will not lie to prevent the execution of a public statute, by officers of the law, for

public benefit. See Civil Code section 3423 subd. (d), Code of Civil Procedure section 526

subd (b)(4),

Plaintiffs do not challenge the constitutionality oil the state law which is to be

implemented through the City's fluoridation plan. It is clear that the plaintiffs do not agree with

the state law, but it' is not the province of this court to substitute its discretion for that of

legislators either at the state or local level. Cf. State Bd.of Equalization v. Superior Court,

(1935) 5 Cal.App.2d, 374, 378, (Court may not enjoin enforcement of valid law.)

 

II

THE COURT MAY NOT INQUIRE INTO THE
THOUGHT PROCESS OF LEGISLATORS

In paragraphs 16 and 18 of the Complaint, plaintiffs concede that public input

was allowed in the City Council meetings of January 12 and 19, 1999. Plaintiffs characterize,

 

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(…missing sentence…)

Plaintiffs further allege that "[d]efendants failed to review necessary and relevant safety data.... Id.

 

It is well established under both California and federal law that a court may not

inquire into the thought processes of a legislator in determining the validity of a legislative act

"[T]he rule is general with reference to the enactments of all legislative bodies that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation, The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments

"…Moreover, the authorities, both in ... California, and more generally, make clear that the rule barring judicial probing of lawmakers' motivations applies to local legislators as well as to member of the state Legislature or of Congress." Board of Administration v. Superior Court (1975) 50 Cal. App.3d 314, 321 n,4 (internal citations omitted.)

 

Plaintiffs propose in paragraph 18 of their complaint that this court may inquire

into the thought processes of the City Council in authorizing the letting of a Board contract for

the purchase of chemicals necessary to fluoridate the City's water supply. Plaintiffs are in

error This court may only determine whether the letting of such a contract is a legitimate

exercise of the legislative function in light of existing California laws. Defendants submit that

given the language of' Health and Safety Code section 116410, the inescapable conclusion is

the letting of such a contract is not only lawful but in compliance with an unambiguous

public safety mandate of the Legislature.

 

III.
LIMITATION ON PUBLIC DEBATE AS ALLOWED
UNDER THE BROWN ACT

Plaintiffs do not allege that public input was not allowed before the City Council

on January 12, 1990 prior to adoption of the report of its Commerce, Energy and Natural

Resources Committee (RJN 4,5). Rather, plaintiffs characterize that input as either "limited" or

 

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not "meaningful". Such pleading is the height of vagueness. Code of Civil Procedure section

430.10 provides that a demurrer may be sustained where "[t]he pleading is uncertain. As

used in this subdivision, 'uncertain' includes ambiguous and unintelligible." Moreover, the

Ralph M. Brown Act specifically provides for regulations limiting the total, time allocated for

public testimony on any issue and for individual speakers. Government Code section

54954.3. subd. (b) provides in its entirety:

"The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker."

The City Council is the legislative body for the City Plaintiffs do not allege that

Council's rules pertaining to time limits for public testimony were violated in the

Council's consideration of the chemical contract at issue here. Absent pleading and proof of

a violation of the Brown Act, plaintiffs have simply failed to state any cause of action under that

law.

 

IV.
THE CITY IS OBLIGATED TO COMPLY WITH STATE
LAW WHICH IMPLICATES STATEWIDE CONCERNS

 

Although the City of Los Angeles is a charter city existing under the "Home Rule"

provisions of the California Constitiution, it is nonetheless mandated to implement state laws

which involve matters of statewide concern regardless of the provisions of the City Charter.

Baggett v. Gates (1982) 32 Cal.3d 128, 136 (City of Los Angeles required to comply with

Public Safety Officers Procedural Bill of Rights Act, Government Code section 3300, et seq.)

Certainly, what constitutes a matter of statewide concern is ultimately a question of law

but "great weight" is accorded to the Legislature's evaluation of the question. Baggett v. Gates,

supra, 32 Cal. 3d at p.136; County of Santa Clara v. Deputy Sheriffs' Assn. (1992) 3 Cal.4th

873, 884.

 

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(…missing sentence…)

the conclusion that the Legislature did not intend its provisions to apply to the City of Los

Angeles. Indeed, the provision in subdivision (a) of that law which requires fluoridation of all

water systems with at least 10,000 service connections was clearly intended to apply to a

large metropolis with millions of inhabitants such as this. A review of the prayer to plaintiffs'

complaint reveals this to be a naked attempt to frustrate the will of the state Legislature.

(Complaint, page 17) This court may not bar the implementation of a state law which

is facially valid and which seeks to protect public health.

CONCLUSION

Plaintiffs do not seek to invalidate the chemical contract let by the Board

Pursuant to the authorization of the City Council. (RJN 6.) Rather, they seek to block the

implementation of a public health law enacted by the state Legislature more than two years

ago Code of Civil Procedure Section 860, et seq. is not the proper vehicle to test the legally

of Health Code section 116410. There is simply no legal theory reasonably contemplated by

the pleading by which plaintiffs can prevail in this matter.

Based on the foregoing and under the authorities cited herein, defendants,

demurrer should be sustained without leave to amend.

 

DATED: April 23, 1999

 JAMES K. HAHN, City Attorney
THOMAS C. HOKINSON, Chief Assistant
City Attorney for Water and Power

 

By: (signed)
S. DAVID HOTCHKISS
Assistant City Attorney

Attorneys for the Los Angeles City Council
and the Department of Water and Power
of the City of Los Angeles

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