1 Raymond P. Boucher, State Bar No. 115364
ray@boucher.la
2 Shehnaz M. Bhujwala, State Bar No. 223484
bhujwala@boucher.la
3 Priscilla Szeto, State Bar No. 305961
szeto@boucher.la
4 BOUCHER LLP
21600 Oxnard Street, Suite 600
5 Woodland Hills, California 91367-4903
Tel: (818) 340-5400
6 Fax: (818) 340-5401
7 Esther Berezofsky (Pro Hac Vice Pending)
eberezofsky@wbclegal.com
8 WILLIAMS CUKER BEREZOFSKY, LLC
210 Lake Drive East, Suite 101
9 Cherry Hill, New Jersey, 08002
Tel: (856) 667-0500
10 Fax: (856) 667-5133

Gregory Owen, State Bar No. 102845
greg@owenpatterson.com
OWEN, PATTERSON & OWEN, LLP
23822 W. Valencia Blvd., Suite 303
Valencia, California, 91355
Tel: (661) 799-3899
Fax: (661) 799-2774

11
12 Attorneys for Plaintiffs
13

SUPERIOR COURT OF THE STATE OF CALIFORNIA

14

FOR THE COUNTY OF FRESNO

15 KAREN MICHELI, individually and on behalf
of all others similarly situated; MICHAEL
16 MICHELI, individually and on behalf of all
others similarly situated; FAITH NITSCHKE,
17 individually and on behalf of all others
similarly situated; DAVID NITSCHKE,
18 individually and on behalf of all others
similarly situated; and JEANETTE GRIDER,
19 individually and on behalf of all others
similarly situated,
20
21
22

Case No.
CLASS ACTION
CLASS ACTION COMPLAINT
REQUEST FOR JURY TRIAL

Plaintiffs,
v.

23 THE CITY OF FRESNO, a Municipal
Corporation; THE CITY OF FRESNO’S
24 DEPARTMENT OF PUBLIC UTILITIES; a
Government Entity; VULCAN
25 CONSTRUCTION & MAINTENANCE,
INC., a California Corporation;
26 MEASUREMENT CONTROL SYSTEMS, a
California Corporation, and DOES 1 – 100.
27
28

Defendants.
CLASS ACTION COMPLAINT

 1

Plaintiffs KAREN MICHELI, MICHAEL MICHELI, FAITH NITSCHKE, DAVID

2 NITSCHKE, and JEANETTE GRIDER, by and through their undersigned counsel, bring this
3 individual and class action against defendants the CITY OF FRESNO and the CITY OF
4 FRESNO’S DEPARTMENT OF PUBLIC UTILITIES (collectively referred to as the “CITY”),
5 VULCAN CONSTRUCTION & MAINTENANCE, INC. and MEASUREMENT CONTROL
6 SYSTEMS, INC. (collectively referred to as “WATER METER INSTALLERS”), and DOES 17 100, inclusive (collectively, “Defendants”), on behalf of themselves and all persons residing
8 within and around the Northeast Fresno, California area, who have suffered harm from being
9 supplied degraded and substandard water by the CITY’s public water system.
10 I.

NATURE OF THE ACTION

11

1.

On or about January 2016, the CITY launched an investigation into water problems

12 including discolored water based on reports from over three hundred residents of the Northeast
13 area of Fresno, California. Testing conducted of the water in numerous homes, including the
14 Plaintiffs’ homes, revealed the presence of lead and other toxic contaminants at levels in excess of
15 allowable limits in the drinking water supplied to them by the CITY.
16

2.

This class action is brought on behalf of residents of Northeast Fresno who, like

17 Plaintiffs, obtain municipal water supplied by the CITY OF FRESNO. As a result of Defendants’
18 wrongful conduct, Plaintiffs – and potentially tens of thousands of class members – have suffered
19 harm and injuries including but not limited to diminished property values, the cost of
20 contaminated water, and the cost of diagnostic testing for potential personal injuries related to
21 their ongoing and continuous exposure to lead. Specifically, Plaintiffs’ injuries are a result of:
22

a.

The failure by the CITY to comply with legislatively mandated water

23 testing and notification requirements, including but not limited to the Environmental Protection
24 Agency’s (“EPA”) Lead and Copper Rule, 40 C.F.R. § 141.80, et seq, and California’s Lead and
25 Copper Rule, 22 CCR 64670 et seq. (collectively, “(LCRs”);
26

b.

The negligent operation by the CITY of the CITY’s Surface Water

27 Treatment Facility, including but not limited to replacing groundwater with surface water without
28 appropriate treatment to address the changing chemistry and its impact, which caused Fresno’s
2
CLASS ACTION COMPLAINT

 1 water supply to become highly corrosive; and
2

c.

The negligent installation by the CITY’s contracted WATER METER

3 INSTALLERS of connections between Plaintiffs’ and Class members’ homes and the public water
4 supply, which caused the pipes connecting the CITY’s water supply to Plaintiff and Class
5 members’ properties to corrode and leach lead and other toxic metals into their drinking water.
6

3.

The CITY has continually denied responsibility, claiming that the water is not

7 defective or harmful to people or property. That assertion is belied by emerging information
8 recently made available to the public, including but not limited to a report by HDR Engineering,
9 Inc., drafted in 1998, alerting the CITY to the dangers of replacing Fresno’s groundwater supply
10 with surface water. The report warned the CITY that introducing surface water into the
11 groundwater system would likely cause leaching of lead and other metals into Fresno’s drinking
12 water. Despite having prior knowledge of the cause of the water problems, the CITY continued to
13 misrepresent to Plaintiffs and Class members that the problems were not the result of the water
14 supplied by the CITY.
15

4.

The CITY was also aware of citizen complaints over a period of years regarding the

16 Fresno water supply. The CITY disregarded these complaints, failed to remedy the problem, and
17 failed to follow legislatively mandated water testing and reporting requirements, all of which
18 prolonged the exposure of Plaintiffs and Class members to lead and other hazardous substances in
19 their drinking water. The harm they suffered and continue to suffer, is a direct result of
20 Defendants’ actions and inactions.
21 II.

JURISDICTION AND VENUE

22

5.

This California Superior Court has jurisdiction over this matter pursuant to

23 California Code of Civil Procedure section 410.10. Both the individual and aggregate monetary
24 damages and restitution sought herein exceed the minimal jurisdictional limits of the Superior
25 Court and will be established at trial, according to proof.
26

6.

The California Superior Court has personal jurisdiction over Defendants because

27 they are entities and/or persons with sufficient minimum contacts in California, are citizens of
28 California, or have contacts with California so as to render the exercise of jurisdiction over them
3
CLASS ACTION COMPLAINT

 1 by the California courts consistent with traditional notions of fair play and substantial justice.
2

7.

Venue is proper in the Superior Court of California, Fresno County pursuant to

3 Code of Civil Procedure sections 394(a), 395(a), and 395.5. Furthermore, this Court is the proper
4 venue because a substantial amount of Defendants’ conduct occurred in this County, and because
5 Plaintiffs reside in and were injured in this County.
6 III.

PARTIES

7

A.

Plaintiffs

8

8.

Plaintiffs KAREN MICHELI and MICHAEL MICHELI are citizens of the State of

9 California and residents of the County of Fresno. Plaintiffs KAREN MICHELI and MICHAEL
10 MICHELI purchased and have lived in their Northeast Fresno, California area home since 1995.
11 During the relevant time period, Plaintiffs KAREN MICHELI and MICHAEL MICHELI were
12 unaware of the nature and extent of the toxicity of the discolored water supplied to them by the
13 CITY, and regularly used their water for certain, normal household purposes. As a result of
14 Defendants’ actions and inactions, as set forth herein, the pipes supplying water from the CITY to
15 their home have corroded and caused lead in excess of permissible levels to leach into the water
16 entering their home. The CITY OF FRESNO’S DEPARTMENT OF PUBLIC UTILITIES tested
17 the water in the Micheli home on or about February 2, 2016, February 9, 2016, and again on
18 February 19, 2016. The CITY failed to inform Plaintiffs KAREN MICHELI and MICHAEL
19 MICHELI that the lead levels in their home exceeded the Environmental Protection Agency’s
20 (EPA) Action Level standard (0.015 mg/L) until approximately March 15, 2016, in violation of
21 the Lead and Copper Rules . The CITY, through its misrepresentations and omissions, led
22 Plaintiffs KAREN MICHELI and MICHAEL MICHELI to believe that pipes on their property
23 were the source of their water problems and that the water was safe for all purposes. Plaintiffs
24 have suffered significant harm including, but not limited to the diminution of their property value,
25 other economic harm including the cost of re-plumbing their home, and ongoing exposure to
26 excessive levels of lead and other toxic substances, as well as substantial and unreasonable
27 interference with their comfortable enjoyment of life and property.
28

9.

Plaintiffs KAREN MICHELI and MICHAEL MICHELI have substantially
4
CLASS ACTION COMPLAINT

 1 complied with all applicable notice and claim requirements by their presentation of written
2 administrative claims in accordance with the California Tort Claims Act (Cal. Govt. Code § 810 et
3 seq.). They submitted their government claim forms to the City of Fresno and State of California
4 on or about August 22, 2016. At this time, Plaintiffs seek declaratory and/or injunctive relief only
5 against the CITY but intend to amend their claims following the conclusion of the time period for
6 response to government claims to seek damages and other relief from the CITY .
7

10.

Plaintiffs FAITH NITSCHKE and DAVID NITSCHKE are citizens of the State of

8 California and residents of the County of Fresno. Plaintiffs FAITH NITSCHKE and DAVID
9 NITSCHKE purchased their home in the Northeast Fresno, California area in 1992, and are the
10 original homeowners. They have lived in this home continuously since they purchased it. During
11 the relevant time period, Plaintiffs FAITH NITSCHKE and DAVID NITSCHKE were unaware of
12 the nature and extent of the toxicity of the water supplied to them by the CITY, and regularly used
13 their water for normal household purposes. As a result of Defendants’ actions and inactions, as set
14 forth herein, the pipes supplying water from the CITY to their home have corroded and caused
15 lead in excess of permissible levels to leach into the water entering their home. The CITY OF
16 FRESNO’S DEPARTMENT OF PUBLIC UTILITIES tested the water in the Nitschke home on
17 or about January 26, 2016, February 13, 2016, and again on February 19, 2016. The CITY failed
18 to inform Plaintiffs FAITH NITSCHKE and DAVID NITSCHKE that the lead levels in their
19 water exceeded the EPA’s Action Level standard until approximately April 6, 2016, in violation of
20 the Lead and Copper Rules. Plaintiffs have suffered significant harm including, but not limited to
21 the diminution of their properties’ values, other economic harm, and ongoing exposure to
22 excessive levels of lead and other toxic substances, as well as substantial and unreasonable
23 interference with Plaintiffs’ comfortable enjoyment of life and property.
24

11.

Plaintiffs FAITH NITSCHKE and DAVID NITSCHKE have substantially

25 complied with all applicable notice and claim requirements by presentation of their written
26 administrative claims in accordance with the California Tort Claims Act (Cal. Govt. Code § 810 et
27 seq.). They submitted their government claim forms to the City of Fresno and State of California
28 on or about August 29, 2016. At this time, Plaintiffs seek declaratory and/or injunctive relief only
5
CLASS ACTION COMPLAINT

 1 against the CITY but intend to amend their claims following the conclusion of the time period for
2 response to government claims to seek damages and other relief from the CITY .
3

12.

Plaintiff JEANETTE GRIDER is a citizen of the State of California and a resident

4 of the County of Fresno. Plaintiff JEANETTE GRIDER purchased her home together with her
5 husband in the Northeast Fresno, California area in 1992. She and her husband are the original
6 homeowners, and they continue to live in this home. During the relevant time period, Plaintiff
7 JEANETTE GRIDER was unaware of the nature and extent of the toxicity of the water supplied to
8 her by the CITY, and regularly used her water for normal household purposes. As a result of
9 Defendants’ actions and inactions, as set forth herein, the pipes supplying water from the CITY to
10 her home have corroded and caused lead in excess of permissible levels to leach into the water
11 entering her home. The CITY OF FRESNO’S DEPARTMENT OF PUBLIC UTILITIES tested
12 the water in JEANETTE GRIDER’s home on or about January 25, 2016 and February 8, 2016.
13 The CITY failed to inform Plaintiff JEANETTE GRIDER that the lead levels in her home
14 exceeded the EPA’s Action Level standard until approximately March 15, 2016, when she
15 received the test results, in violation of the Lead and Copper Rules. Plaintiff has suffered
16 significant harm including, but not limited to the diminution of her property value other economic
17 harm, and ongoing exposure to toxic levels of lead and other toxic substances, and substantial and
18 unreasonable interference with Plaintiff’s comfortable enjoyment of life and property.
19

13.

Plaintiff JEANETTE GRIDER has substantially complied with all applicable notice

20 and claim requirements by presentation of her written administrative claims in accordance with the
21 California Tort Claims Act (Cal. Govt. Code § 810 et seq.). for herself and the Class. She
22 submitted her government claim forms to the City of Fresno and State of California on or about
23 September 7, 2016. At this time, she seeks declaratory and/or injunctive relief only against the
24 CITY but intends to amend her claims following the conclusion of the time period for response to
25 government claims to seek damages and other relief from the CITY.
26

B.

Defendants

27

14.

Defendant CITY OF FRESNO is a municipal corporation, duly organized and

28 existing under the laws of the State of California.
6
CLASS ACTION COMPLAINT

 1

15.

Defendant CITY OF FRESNO’S DEPARTMENT OF PUBLIC UTILITIES is both

2 a “Water Corporation” and a “Public Utility” pursuant to Sections 241 and 216(a) of the California
3 Public Utilities Code, respectively. The CITY OF FRESNO’S DEPARTMENT OF PUBLIC
4 UTILITIES provides services to its residents such as disposing garbage, collecting recycling, and
5 supplying water; it oversees the Water Division, which manages and operates the CITY OF
6 FRESNO’S public water system. Defendant CITY OF FRESNO’S DEPARTMENT OF PUBLIC
7 UTILITIES touts delivering drinking water to approximately 500,000 urban residential,
8 commercial, and industrial customers within the CITY OF FRESNO.
9

16.

Defendant VULCAN CONSTRUCTION AND MAINTENANCE, INC. is a

10 general engineering contractor with its principal place of business in Fresno, California. The
11 company provides services relating to the installation of water meter systems. On or about May 6,
12 2010, the Director of the CITY OF FRESNO’S DEPARTMENT OF PUBLIC UTILITIES
13 submitted a report to the City Council recommending that the City Council award a contract to
14 VULCAN CONSTRUCTION & MAINTENANCE, INC. to install water meters in the CITY OF
15 FRESNO.
16

17.

Defendant MEASUREMENT CONTROL SYSTEMS is a California-based

17 distributor of water meters and offers installation services with its principal place of business in
18 Santa Ana, California. On or about June 3, 2010, the Director of the CITY OF FRESNO’S
19 DEPARTMENT OF PUBLIC UTILITIES submitted a report to the City Council recommending
20 that the Council award a contract to MEASUREMENT CONTROL SYSTEMS to install water
21 meters in the CITY OF FRESNO.
22

18.

DEFENDANT DOES: Plaintiffs are unaware at this time of the true names and

23 capacities of the defendants sued herein as DOES 1-100, inclusive, and therefore sue these
24 defendants by such fictitious names. Plaintiffs are informed and believe that each of the fictitious
25 named defendants are legally responsible in some manner for the occurrences herein alleged,
26 assisted in and about the wrongs complained herein by providing financial support, advice,
27 resources, and/or other assistance. Plaintiffs will amend the complaint to allege their true names
28 and capacities when ascertained.
7
CLASS ACTION COMPLAINT

 1

19.

Unless otherwise specified, “Defendants” as used herein shall refer collectively to

2 Defendants CITY OF FRESNO, CITY OF FRESNO’S DEPARTMENT OF PUBLIC
3 UTILITIES, the VULCAN CONSTRUCTION & MAINTENANCE, INC., MEASUREMENT
4 CONTROL SYSTEMS, and DOES 1-100, inclusive.
5

20.

At all relevant times, each of the Defendants, including DOES 1-100, inclusive,

6 was the agent, servant, employee, co-conspirator, alter ego, and/or joint venture of each of the
7 other Defendants. In doing the things herein alleged, each and every Defendant was acting within
8 the course and scope of this agency, employment, conspiracy, alter ego, and/or joint venture, and
9 was acting with the consent, permission and authorization of each of the other Defendants. All
10 actions of each Defendant, as alleged in the causes of action stated herein, were ratified, approved,
11 and/or authorized by every other Defendant with full knowledge of such acts. Defendants are thus
12 jointly and severally liable for such actions.
13

21.

The allegations in this Complaint are based upon information and belief, except for

14 those allegations pertaining to the Plaintiffs named herein and their counsel. Plaintiffs’
15 information and the allegations in this Complaint are based upon information and belief except for
16 those allegations pertaining to the Plaintiffs named herein and their counsel. Plaintiffs’
17 information and beliefs are based upon, inter alia, the investigation conducted to date by Plaintiffs
18 and their counsel. Each allegation in this Complaint either has evidentiary support or is likely to
19 have evidentiary support upon further investigation and discovery.
20 IV.

GENERAL ALLEGATIONS

21

22.

All allegations made herein are pled in the alternative to the extent they present any

22 actual conflict.
23

A.

THE CITY’S DECISION TO CHANGE THE WATER SOURCE BY
INTRODUCING SURFACE WATER ACCELERATED THE CORROSION
OF THE PIPES USED TO DELIVER WATER TO THE RESIDENTS OF
FRESNO.

23.

Historically, the CITY relied on water from groundwater wells with relatively high

24
25
26

27 mineral content as its sole source of water to service its residents. As of 2004, however, in an
28 effort to meet the rising demands of an expanding population base, the CITY changed its primary
8
CLASS ACTION COMPLAINT

 1 sourcing from the groundwater to surface water treated at the Northeast Fresno Surface Water
2 Treatment Facility. The Northeast Surface Water Treatment Facility supplies more than 20 million
3 gallons of water per day to thousands of homes in the Northeast area of Fresno, California.
4

24.

In 1998, well before the activation of the Northeast Surface Water Treatment

5 Facility, the CITY retained a consultant, HDR Engineering, Inc. to evaluate the consequences of
6 changing the water supply source from groundwater to surface water from the Enterprise Canal. In
7 the 1998 report drafted to the CITY, HDR Engineering, Inc. advised the CITY that, in changing its
8 water source, “some degradation in the aesthetic quality (colored water)” will likely occur since a
9 new water supply source is being introduced to pipes that were previously accustomed to the
10 characteristics of a particular source of water. The 1998 report further warned that the “potential
11 water quality impacts of these events relate . . . to . . . increased particulate release, potential red
12 water episodes, higher Coliform and HPC counts, and the potential for increased corrosion on the
13 base metal of the pipe wall.”
14

25.

The groundwater previously supplied by the CITY to the homes of Fresno

15 residents, including Plaintiffs’ homes, was heavily mineralized with a moderate concentration of
16 alkalinity and hardness. Enterprise Canal water, on the other hand, has a far lower mineral content,
17 lower overall hardness, and a lower chloride and sulfate content. Whereas the previously supplied
18 groundwater did not cause any harm to the homes or the pipe system in the homes of Northeast
19 Fresno, the Enterprise Canal water has caused and continues to cause such harm.
20

26.

The 1998 report informed the CITY that there would be a strong likelihood of

21 corrosion in piping due to the significant differences in these water sources’ inorganic character.
22 The CITY knew changing the water source from heavily mineralized groundwater with moderate
23 concentrations of alkalinity and hardness, with a significant contribution of chloride, sulfate, and
24 other inorganic constituents, to surface water with a significantly different chemical composition,
25 would have adverse effects on the galvanized pipes by destabilizing the material built up in the
26 pipes in most of the Northeast Fresno residents’ homes, including the homes of Plaintiffs.
27

27.

The CITY also had knowledge, based on the 1998 report, that “galvanized piping

28 predominates with well over 50% of the installation” in Fresno households. The CITY knew that
9
CLASS ACTION COMPLAINT

 1 these homes would be susceptible to discoloration in their waters and corrosions in their piping,
2 which would likely lead to the leaching of metals, including toxic metals such as lead, into the
3 water that Fresno residents drink or otherwise ingest.
4

28.

The above notwithstanding, in 2004, the CITY’s Northeast Fresno Surface Water

5 Treatment Facility went into operation without undertaking all the measures recommended by
6 HDR Engineering, Inc. to protect, or potentially prevent the pipes from accelerated corrosion.
7 Shortly after the treatment facility became active and began combining the ground and surface
8 waters, the CITY OF FRESNO’S DEPARTMENT OF PUBLIC UTILITIES, namely its Water
9 Division, began receiving complaints from Fresno residents.
10

29.

The CITY’s decision to introduce surface water, treated by the Northeast Fresno

11 Surface Water Treatment Facility, into the water supply caused discolored water, accelerated
12 corrosion in pipes delivering water, and eventually the contamination of the municipal water with
13 excessive levels of lead and other toxic substances.
14

30.

Notwithstanding the CITY’s representations about the safety of the water, in

15 approximately 2005 or 2006, the CITY nevertheless provided a select number of residents in the
16 CITY with ongoing supplies of bottled water, which continues to this day, for everyday use,
17 including drinking, showering, and cooking.
18

31.

CITY officials also failed to report the results of tests revealing contaminated and

19 discolored water in the municipal water supply to the State of California or take any system-wide
20 measures to remedy the problem in order to mitigate or prevent further damages to its residents
21 and their properties. Instead, the CITY denies having knowledge of this widespread issue,
22 contending that it only recently discovered the issue in January 2016.
23

32.

THE CITY ignored irrefutable evidence, long before January 2016, that the water

24 supplied to residents of Northeast Fresno was not potable and exposed these residents, including
25 Plaintiffs, to toxic metals such as lead, which caused residents to suffer property damage, other
26 economic losses, and the risk of serious health hazards.
27
28
10
CLASS ACTION COMPLAINT

 1

B.

PRIVATE CONTRACTORS NEGLIGENTLY INSTALLED AND
CONNECTED WATER METERS TO RESIDENTIAL PIPES.

33.

In 2003, legislation was passed in California requiring all water suppliers in the

2
3

4 federal Central Valley Project under a water service contract or subcontract with the U.S. Bureau
5 of Reclamation, including Fresno, to have water meters installed by January 2013 and bill by a
6 volumetric rate. As a result, the CITY undertook a “multi-year installation project” in 2008 to
7 install water meters and connect residential pipes to them, finishing this project in the last month
8 of 2012. The CITY retained private contractors including, VULCAN CONSTRUCTION &
9 MAINTENANCE, INC. and MEASUREMENT CONTROL SYSTEM (“WATER METER
10 INSTALLERS”) to undertake the installation of water meters in order to bring Fresno into
11 compliance. The WATER METER INSTALLERS, retained by the City, negligently installed
12 these water meters, by, among other things failing to install industry-standard dielectric
13 connections between the brass meters and the galvanized piping.
14

34.

As a result of the Defendants’ failure to adhere to industry standards for the

15 installation and connection of water meters, and specifically by joining dissimilar metals without
16 taking the appropriate measures to prevent and protect against accelerated corrosion, the pipes
17 supplying residents’ water, including Plaintiffs’ water from the CITY corroded at an accelerated
18 rate, thereby exposing residents, including Plaintiffs, to toxic levels of lead and other hazardous
19 substances.
20

C.

DEFENDANTS FAILED TO COMPLY WITH LEGISLATIVELY
MANDATED WATER TESTING AND REPORTING REQUIREMENTS.

35.

Defendants violated mandatory duties imposed and required pursuant to the United

21
22

23 States Safe Drinking Water Act, 42 U.S.C. § 300f, et seq, the California Safe Drinking Water Act,
24 Cal. Health & Saf. Code § 116270, et seq, and supporting federal and state regulations.
25

36.

The Environmental Protection Agency (“EPA”) is responsible for establishing

26 regulations pursuant to the United States Safe Drinking Water Act, 42 U.S.C. § 300f, et seq.
27 Enforcement and implementation of those rules is delegated to state and local environmental
28 agencies and municipalities.
11
CLASS ACTION COMPLAINT

 1

37.

The California State Legislature enacted the California Safe Drinking Water Act,

2 Cal Health & Saf. Code § 116270, et seq, to improve upon the minimum requirements of the
3 federal Safe Drinking Water Act, and to establish primary drinking water standards that are at least
4 as stringent as those established under the federal Safe Drinking Water Act.
5

38.

The federal and state Lead and Copper Rules (“LCRs”), 40 C.F.R. § 141.80 et seq,

6 and 22 CCR 64670, et seq., were enacted to establish protocols to ensure that public water systems
7 do not allow unsafe levels of lead or copper to contaminate municipal water supplies.
8

39.

The LCRs require the City’s water utilities to test its water supply from the taps of

9 consumers.
10

40.

In order to comply with the LCRs, California enacted detailed laws and regulations

11 governing the testing of its water supply. The manner and method of water supply testing is not
12 discretionary pursuant to California Government Code section 815.6, which states:

15

Where a public entity is under a mandatory duty imposed by an enactment that is
designed to protect against the risk of a particular kind of injury, the public entity
is liable for an injury of that kind proximately caused by its failure to discharge the
duty unless the public entity establishes that it exercised reasonable diligence to
discharge the duty.

16

41.

The CITY failed to discharge its mandatory duty to conduct water supply testing.

17

42.

The LCRs and California law require that the CITY report the results of all tap

13
14

18 samples, including those samples that exceed the federal action level of more than 15 parts per
19 billion (“ppb”) of lead, to the State. These state and federal reporting requirements are not
20 discretionary.
21

43.

The CITY failed to discharge its mandatory duty to report the results of lead levels

22 in excess of 15ppb.
23

44.

The California Safe Drinking Water Act, Cal Health & Saf. Code § 116450,

24 requires the CITY to file a report with the State when any primary drinking water standard –
25 including in those set forth in the LCRs – is not complied with, or when a monitoring requirement
26 is not performed. This state reporting requirement is not discretionary.
27

45.

The CITY failed to discharge its mandatory duty to report its water supply’s

28 noncompliance with drinking water standards.
12
CLASS ACTION COMPLAINT

 1

46.

The CITY failed to discharge its mandatory duty to report that a monitoring

2 requirement, namely proper lead and copper testing pursuant to the LCRs was not performed.
3

47.

The California Safe Drinking Water Act, Cal Health & Saf. Code § 116450,

4 requires the CITY to notify the public when any primary drinking water standard – including the
5 standards set forth in the LCRs – is not complied with, or when a monitoring

requirement is

6 not performed. This public notification requirement is not discretionary.
7

48.

The CITY failed to discharge its mandatory duty to notify the public of its water

8 supply’s noncompliance with drinking water standards.
9

49.

The CITY failed to discharge its mandatory duty to notify the public that a

10 monitoring requirement, namely proper lead and copper testing, was not performed.
11

50.

The laws and regulations enacted pursuant to the United States Safe Drinking

12 Water Act, 42 U.S.C. § 300f, et seq, and the California Safe Drinking Water Act, Cal Health &
13 Saf. Code § 116270, et seq, are intended to protect against the kind of injury suffered by Plaintiffs
14 and the Class members, namely the contamination of public drinking water with unsafe levels of
15 toxic substances, including but not limited to lead.
16

51.

The Defendants’ breach of the mandatory duties described above proximately

17 caused injuries to Plaintiffs and the Class.
18

52.

At all times relevant herein, Defendants, and each of them, concealed and omitted

19 relevant facts that would have allowed Plaintiffs and Class members to discover the true nature
20 and degree of the water contamination issues. As a result of these misrepresentations and
21 omissions, equitable tolling of the statute of limitations applies as to the claims asserted by
22 Plaintiffs and the Class. Any applicable statute of limitations that might otherwise bar certain of
23 the claims at issue should be tolled because Defendants, and each of them, actively misled
24 Plaintiff and the Class through affirmative representations and omissions with respect to the true
25 nature, quality, and hazards of use of the water as described herein and above.
26

53.

Indeed, it wasn’t until approximately July 2016 that news reporters investigating

27 the water issues of residents reported that the Defendants’ installation of water meters in or about
28 2012 may have caused corrosion because the Defendants attached dissimilar metals. In or about
13
CLASS ACTION COMPLAINT

 1 the same time, the CITY mailed out a notice to certain residents describing the negligent
2 installation of water meters as follows: “In these locations where copper, brass and similar metals
3 are connected to galvanized pipe- or the dielectric union has failed- corrosion of the galvanized
4 piping will occur- regardless of the water supply or corrosion control strategy- and lead will be
5 found present during sampling.”1
6

54.

Plaintiffs and Class members exercised due diligence to discover Defendants’

7 wrongdoings. However, such wrongdoing and/or the full extent and degree of such wrongdoing
8 was not reasonably discoverable prior to the date of the filing of this action and/or prior to the
9 statutory period for the filing of this action since Defendants, and each of them, concealed their
10 wrongdoing through misrepresentations and omissions. Plaintiffs exercised due diligence by
11 promptly filing this Complaint after discovering the facts giving rise to these claims.
12 V.

CLASS ACTION ALLEGATIONS

13

55.

Plaintiff brings this class action individually and on behalf of all others similarly

14 situated pursuant to California Code of Civil Procedure section 382. This action may be brought
15 and properly maintained as a class action because Plaintiffs satisfy the numerosity, adequacy,
16 typicality, and commonality pre-requisites for suing as a representative party pursuant to
17 California Code of Civil Procedure section 382.
18

56.

All individuals and entities in the Northeast Fresno, California area who own or
lease real property receiving water from the City of Fresno who have been harmed
in their persons or property, including:

19
20
21

All persons and entities in the Northeast Fresno, California area who have
sustained harm by Defendants’ violation of federal and state Lead and
Copper Rule requirements to operate and maintain appropriate and optimal
corrosion control treatment (40 C.F.R. § 141.80 et seq. and 22 CCR 64670
et seq.);
All persons and entities in the Northeast Fresno, California who
have sustained harmed by the CITY’s violation of the federal Lead and

22
23
24
25
26

Plaintiffs seeks to represent a Class defined as follows: “

1

See Fresno Water Meter Hook-ups Could Be Causing Corrosion in Northeast Fresno Pipes
(Brass Meter hooked directly to galvanized steel pipe), by Angela Greenwood:
27
http://www.yourcentralvalley.com/news/fresno-water-meter-hook-ups-could-be-causing28 corrosion-in-northeast-fresno-pipes (last accessed September 9, 2016).
14
CLASS ACTION COMPLAINT

 Copper Rule’s requirement to notify customers of their individual test
results of tap water samples tested for lead within thirty days after receiving
the results. 40 C.F.R. § 141.85(d)(2);

1
2
3

All persons and entities in the Northeast Fresno, California area whose
water was tested for lead and had lead in their water at levels in excess of
the EPA’s Action Level standard.

4
5

All persons and entities in the Northeast Fresno, California area who own or
lease real property fitted with galvanized pipes and receiving water from the
City of Fresno at any time during the relevant statutory period.

6
7
8

57.

At all relevant times, Plaintiffs named herein were and are within the proposed

9 class as described above.
10

58.

Excluded from the proposed Class are Defendants; the officers, directors and

11 employees of Defendants; any entity in which Defendants have a controlling interest; and any
12 affiliate, legal representative, and/or heir of assign of Defendants; also excluded is any judicial
13 officer presiding over this action. Plaintiffs reserve the right to modify the proposed class
14 definition and to add or modify subclasses.
15

59.

Numerosity. The proposed Class is so numerous that joinder of all members is

16 unfeasible and impractical. The CITY maintains that its Northeast Surface Water Treatment
17 Facility supplies more than 20 million gallons of water per day to thousands of homes in the
18 Northeast Fresno area. Moreover, it has been reported that over three hundred residents have
19 complained to the CITY about issues relating to their water. The proposed class is sufficiently
20 numerous, making individual joinder of class members claims impracticable.
21

60.

Ascertainability. Class members are ascertainable through the CITY and State of

22 California’s public records. Moreover, the CITY has conducted water testing throughout Fresno,
23 and sending monthly reports with such information to the State of California. This action is
24 properly suited for class action treatment because a well-defined community of interest in the
25 litigation exists and the proposed class is readily and easily ascertainable.
26

61.

Typicality. Plaintiffs’ claims are typical of the claims of all members of each class

27 Plaintiffs seek to represent because all members of the Class sustained injuries arising out of
28 Defendants’ common course of conduct in violation of law and the injuries of all members of the
15
CLASS ACTION COMPLAINT

 1 Class were caused by Defendants’ wrongful conduct in violation of law, as alleged herein.
2 Plaintiffs’ person and real property, like all Class members, have been harmed by Defendants’
3 misconduct and failure to act, and Plaintiffs have suffered harm and incurred damages and losses
4 related to the contaminated water supplied by Fresno’s public water system, which caused the
5 corrosion of pipes and Plaintiffs to be exposed to an excess levels of lead and other hazardous
6 substances. Furthermore, the CITY’s failure to test, report, and investigate its issues with its water
7 supply and notify and warn the public of the same is the basis of these Defendants’ misconduct.
8 This action and/or failure to act represents a common thread of misconduct that caused harm to
9 Plaintiffs and Class Members.
10

62.

Adequacy. Plaintiffs are adequate representatives of the class they seek to represent

11 and will fairly protect the interests of Class Members. Plaintiffs’ interests do not conflict with
12 Class Members’ interests. Plaintiffs have no interest antagonistic to those of class members, and
13 Defendants have no defenses unique to Plaintiffs. Plaintiffs have retained counsel competent and
14 experienced in complex class action litigations, and Plaintiffs intend to vigorously pursue
15 favorable resolution of this suit on behalf of themselves and the members of the Class.
16

63.

Predominant Common Questions of Law and/or Fact. This is a well-defined

17 community of interest and common questions of law and fact exist as to all members of the
18 proposed Class and predominate over questions affecting only individual Class Members; these
19 common questions will drive the resolution of this litigation. Common questions applicable to all
20 classes include:
21

a.

Whether Defendants engaged in the conduct alleged herein;

22

b.

Whether the CITY complied with the mandatory duty to test the municipal

23 water supply in conformance with requirements under the state and federal Safe Drinking Water
24 Act, 42 U.S.C. § 300f, et seq., Cal. Health & Saf. Code § 116270, et seq., and the federal and state
25 Lead and Copper Rule, 40 C.F.R. § 141.80 et seq.; 22 CCR 64670 et seq.
26

c.

Whether the CITY breached a duty to Plaintiffs and Class Members to

27 notify them of the lead contamination in their water supply;
28

d.

Whether the CITY made unlawful, misleading, and false representations or
16
CLASS ACTION COMPLAINT

 1 material omissions with respect to the drinkability and safety of Fresno’s public water system;
2

e.

Whether Defendants’ actions and inactions were a substantial factor in

3 causing harm to Plaintiffs and Class Members;
4

f.

Whether Defendants’ misconduct interfered with or continue to interfere

5 with Plaintiffs’ and Class Members’ enjoyment of their lives and property;
6

g.

Whether Defendants have caused a nuisance;

7

h.

Whether Defendants’ misconduct, actions, and/or inactions have caused a

8 diminution of Plaintiffs’ property values and other injuries;
9

i.

Whether Defendants have violated any California statutes;

10

j.

Whether the CITY acted reasonably in the operation and maintenance of the

11 Northeast Fresno Surface Water Treatment Facility;
12

k.

Whether the CITY owed a duty to Plaintiffs and Class Members by

13 operating and maintaining the Surface Water Treatment Facility that provides over 20 million
14 gallons of water per day to over thousands of residents in Fresno;
15

l.

Whether the CITY was negligent in its operation and maintaining of its

16 public water system;
17

m.

Whether the CITY and the WATER METER INSTALLERS were negligent

18 in their installation of the water meters in residents’ homes;
19

n.

Whether the CITY was negligent in not reporting the complaints or taking

20 corrective action upon discovery of these water issues;
21

o.

Whether the Defendants breached their duties to Plaintiffs and Class

p.

Whether Defendants’ breach of duty to Plaintiffs and Class Members was

22 Members;
23

24 the actual and proximate cause of Plaintiffs’ and Class Members’ injuries;
25

q.

Whether Plaintiffs are entitled to injunctive and/or declaratory relief against

r.

Whether it was reasonably foreseeable that Defendants’ failure to properly

26 the CITY; and
27

28 test, investigate, report, install water meters, would result in harm including property damages,
17
CLASS ACTION COMPLAINT

 1 economic damages, and potential personal injuries to Plaintiffs’ and Class Members’ health.
2

64.

Superiority. A class action is superior to any other available method for the fair and

3 efficient adjudication of the claims of Class Members because Defendants have acted or refused to
4 act on grounds generally applicable to all Class Members, thereby making appropriate final
5 injunctive or declaratory relief on a class-wide basis. In addition, Plaintiffs and Class Members
6 will not be able to obtain effective and economical legal redress unless the action is maintained as
7 a class action. Finally, without class certification, the prosecution of separate actions by individual
8 Class Members would create the risk of:
9

a.

Inconsistent or varying adjudications with respect to individual Class

10 Members, which would establish incompatible standards of conduct for Defendants;
11

b.

Adjudications with respect to the individual members which would, as a

12 practical matter, be dispositive of the interests of other members not parties to the adjudication, or
13 would substantially impair or impede their ability to protect their interests;
14

c.

Defendants necessarily gaining an unconscionable advantage because

15 Defendants would be able to exploit and overwhelm the limited resources of each individual
16 member of the Class with Defendants’ vastly superior financial and legal resources; and
17

d.

Unnecessary delay and expense to all parties and to the court system.

18

65.

Plaintiffs do not anticipate any difficulty in the management of this litigation.

19 VI.

CAUSES OF ACTION

20

FIRST CAUSE OF ACTION

21

DECLARATORY RELIEF

22

(Against CITY DEFENDANTS AND DOES 1-100, Inclusive)

23

66.

Plaintiffs re-allege and incorporate herein by reference all of the allegations

24 contained in the preceding paragraphs as though fully set forth herein.
25

67.

An actual controversy has arisen and now exists regarding the duties of the CITY

26 and DOES 100, inclusive, under the United States Safe Drinking Water Act, 42 U.S.C. § 300f, et
27 seq, the California Safe Drinking Water Act, Cal Health &Saf Code § 116270, et seq, (the “Safe
28 Drinking Water Acts”) and supporting federal and state regulations, as well as Plaintiffs’ and
18
CLASS ACTION COMPLAINT

 1 Class members’ rights under these laws and regulations.
2

68.

These Defendants owe specific duties to Plaintiffs under the Safe Drinking Water

3 Acts, and their supporting federal and state regulations. This includes federal and state Lead and
4 Copper Rules (“LCRs”), 40 C.F.R. § 141.80 et seq, and 22 CCR 64670, et seq, promulgated
5 pursuant to the Safe Drinking Water Acts, which establish that the City has a duty to test its water
6 supply from the taps of consumers. The CITY has failed and continues to fail to comply with these
7 duties.
8

69.

Further, the CITY has a duty to follow the specific water supply testing methods

9 detailed in the California LCR, 22 CCR 64670, et seq,
10

70.

Federal and state LCRs, 40 C.F.R. § 141.80 et seq, and 22 CCR 64670, et seq, also

11 impose a duty on the CITY to report the results of all tap samples, including those samples that
12 exceed the federal action level of more than 15 parts per billion (“ppb”) of lead, to the State. The
13 CITY has failed and will likely continue to fail its duty to report as required by these statutes and
14 regulations.
15

71.

The California Safe Drinking Water Act, Cal Health &Saf. Code § 116450, also

16 imposes a duty on the CITY to file a report with the Sate when any primary drinking water
17 standard – including those set forth in state and federal LCRs – is not complied with, or when a
18 monitoring requirement is not performed. The CITY has failed and will likely continue to fail its
19 duty to report as required by this statute.
20

72.

The California Safe Drinking Water Act, Cal Health & Safe Code § 116450,

21 imposes a duty on the CITY to notify the public when any primary drinking water standard –
22 including those set forth in state and federal LCRs – is not complied with, or when a monitoring
23 requirement is not performed. The CITY has failed and will likely continue to fail its duty to
24 notify as required by this statute.
25

73.

The CITY failed to discharge its mandatory duty to conduct water supply testing.

26

74.

The CITY failed to discharge its mandatory duty to report the results of lead levels

27 in excess of 15ppb.
28

75.

The CITY failed to discharge its mandatory duty to report the water supply’s
19
CLASS ACTION COMPLAINT

 1 noncompliance with drinking water standards.
2

76.

The CITY failed to discharge its mandatory duty to report that a monitoring

3 requirement, namely proper lead and copper testing pursuant to the Lead and Copper Rule, was
4 not performed.
5

77.

The CITY failed to discharge its mandatory duty to notify the public of the water

6 supply’s noncompliance with drinking water standards.
7

78.

The CITY failed to discharge its mandatory duty to notify the public that a

8 monitoring requirement, namely proper lead and copper testing, was not performed.
9

79.

Despite the facts as set forth above, the CITY contents that it has complied and

10 continues to comply with all of its testing, notification and reporting requirements.
11

80.

Plaintiffs request a judicial determination of their rights and duties, and the rights

12 and duties of absent class members, and a declaration that these Defendants have violated all of
13 the laws and regulations described above.
14

SECOND CAUSE OF ACTION

15

NEGLIGENCE

16

(Against WATER METER INSTALLERS AND DOES 1-100, Inclusive)

17

81.

Plaintiffs re-allege and incorporate herein by reference all of the allegations

18 contained in the preceding paragraphs as though fully set forth herein.
19

82.

As set forth above, the installation by the CITY’s contracted WATER METER

20 INSTALLERS of connections between Plaintiffs’ and Class members’ homes and the public water
21 supply, caused the pipes connecting the CITY’s water supply to Plaintiff and Class members’
22 properties to corrode and leach lead and other toxic metals into their drinking water.
23

83.

Plaintiffs and Class members were harmed by the WATER METER

24 INSTALLERS’ negligent conduct, as described above.
25

84.

The WATER METER INSTALLERS’ negligent conduct was a substantial factor

26 in causing Plaintiffs’ and Class members’ harm.
27

85.

The WATER METER INSTALLERS’ acted, and/or failed to act, knowing or

28 should have known that negligent installation of water meters can result in corroded piping and
20
CLASS ACTION COMPLAINT

 1 ultimately cause Plaintiffs and Class Members to be exposed to contaminated water;
2 VII.

PRAYER FOR RELIEF

3

WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly situated, pray

4 for judgment against Defendants, and each of them, as follows:
5

1.

For an order certifying the Class and appointing Plaintiffs as representatives of the

6 Class and appointing the undersigned as Class Counsel;
7

2.

For an injunction prohibiting the CITY Defendants from continuing the wrongful

8 conduct alleged herein;
9

3.

For declaratory relief against the CITY Defendants as specified herein;

10

4.

For an award of actual damages as against VULCAN CONSTRUCTION &

11 MAINTENANCE, INC and MEASUREMENT CONTROL SYSTEMS;
12

5.

For an award of attorneys’ fees and costs, as allowed by law;

13

6.

For pre-judgment and post-judgment interest to the extent allowed by law; and

14

7.

For such other and further relief as the Court deems just and proper.

15 DATED: September 9, 2016

Respectfully submitted,

16

BOUCHER LLP

17
18
19
20
21
22

By:
RAYMOND P. BOUCHER
SHEHNAZ M. BHUJWALA
PRISCILLA SZETO
WILLIAMS CUKER BEREZOFSKY LLC
ESTHER BEREZOFSKY

23
24

OWEN, PATTERSON & OWEN, LLP
GREGORY OWEN

25
26
27
28
21
CLASS ACTION COMPLAINT

 1
2

REQUEST FOR JURY TRIAL
Plaintiffs, individually and on behalf of a Class of other similarly situated, hereby

3 respectfully request a trial by jury of all causes of action and issues so triable.
4 DATED: September 9, 2016

Respectfully submitted,

5

BOUCHER LLP

6
7
8
9
10
11

By:
RAYMOND P. BOUCHER
SHEHNAZ M. BHUJWALA
PRISCILLA SZETO
WILLIAMS CUKER BEREZOFSKY LLC
ESTHER BEREZOFSKY

12
13

OWEN, PATTERSON & OWEN, LLP
GREGORY OWEN

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

CLASS ACTION COMPLAINT