A California state appeals panel says the differences in the condition of copper piping in homes and businesses in Folsom should flush an attempted class action lawsuit attempting to make the city of Folsom pay for allegedly causing copper pipes in homes in the city by allegedly failing to properly treat its water, which in turn caused the pipes to corrode.
A three-justice panel of the California Third District Court of Appeal sided with the city, upholding a Sacramento County Superior Court judge's ruling.
In the ruling, the appellate justices said the questions presented by the case were not right for a class action, which would treat every house and every claimant the same. The justices agreed with the city and the lower court judge that the condition of the plumbing in every house would require courts to determine if the city's alleged water treatment policies even caused the damage claimed.
Attorney Gene Stonebarger
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"... Even if the water conditions made those properties with poor workmanship or other issues more susceptible to corrosion and pinhole leaks, individual trials would still be required to determine the full scope of liability (i.e., whether the City's provision of water with those conditions was a substantial factor in causing Plaintiff['s] and Class members' harm) and damages," the justices wrote.
"So framed, this case is not like one in which a tortfeasor has injured an unusually susceptible plaintiff, and it is not a case in which the City's conduct can generally be described as a wrong in the abstract without consideration of individual circumstances."
The appellate decision was initially filed in April as an unpublished order. The court on May 13 ruled the decision should be published, meaning it can be cited as precedent under court rules.
The lawsuit first landed in Sacramento County court in 2021, when attorney Gene J. Stonebarger filed the complaint against Folsom on behalf of named plaintiff Harold Malmquist.
Malmquist and Stonebarger sought to expand the action to include a host of other homeowners and others in the city.
The lawsuit centered on an alleged spate of "pinhole leaks" in water pipes in copper water pipes in homes in the city in the summer of 2020.
According to court documents, the city draws the water for its municipal water system from Folsom Lake. The water is then supposedly treated and distributed to as many as 23,600 homes and businesses in the city.
According to the complaint, however, the city allegedly failed to maintain the proper pH level in its treated water from 2017-2020, allowing it to rise regularly around or above 9-9.2. This, in turn, allegedly caused the city's water "to become corrosive and harmful," causing the pinhole leaks.
The complaint relied heavily on a memorandum prepared by consultants hired by the city to investigate the water leak claims. According to court documents, that memorandum recommended the city implement "a corrosion control measure to mitigate the corrosivity of the City's water and arrest the manifestation of leaks."
Further, the plaintiffs pointed to email exchanges which they claim showed the city knew about the high pH of its water, and its potential for corrosivity on residents' copper water pipes.
The lawsuit asserted the city's allegedly corrosive water amounted to a public nuisance, entitling residents to payment from the city for the alleged damage caused by the pipe leaks.
The lawsuit asserted it was filed on behalf of every person or business that owned or leased property in Folsom plumbed with copper piping since 2015.
The city, however, said homes in Folsom and the condition of their plumbing systems were too different to allow the case to move forward collectively.
Judges agreed.
Sacramento County Superior Court Judge Lauri A. Damrell noted the consultants' report doesn't definitively state that the high pH was responsible for the leaks. Rather, the report couches the determinations, by concluding "the City's water 'could contribute to pitting in copper pipe,' 'can potentially influence corrosive conditions,' 'can potentially contribute to pinhole leaks,' and 'could have created pitting conditions within copper piping based on research with similar water qualities.'"
The report further noted that the leaks could be caused by interactions between chlorine in the water and "impurities" in a home's pipes, or by copper pipes that were too thin.
And, the report indicated that consultants examined 12 "pipe specimens obtained from the City," showing "in all instances, the cause of failure was not corrosive water, but instead was due to poor workmanship during initial installation."
Malmquist and Stonebarger appealed the decision to reject their attempted class action, asserting Judge Damrell had abused her discretion in denying their class request.
They fared no better on appeal, however.
The appellate decision was authored by Justice Elena Duarte. Justices Jonathan Renner and Stacy Boulware Eurie concurred.
"The trial court's decision was not based on the conclusion that each putative class member would be required to prove their damages, or their inclusion in the class following a determination of the City's class-wide liability, as plaintiff suggests," Duarte wrote. "Instead, the court's decision was based on its determination that, at the conclusion of class proceedings, there would still remain numerous and substantive questions about the City's nuisance liability as it related to each class member."
The appeals court affirmed the decision denying class certification.
Stonebarger did not respond to a request from The Northern California Record for comment on the decision.