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NORTHERN CALIFORNIA RECORD

Monday, November 4, 2024

Plaintiff appeals class action status of lawsuit again the City of Folsom

State Court
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Harold Malmquist has filed a class action complaint against the City of Folsom, alleging that the city’s water treatment practices have caused widespread damage to copper piping in homes and businesses. The complaint, initially handled by Judge Lauri A. Damrell from Superior Court of Sacramento County on March 2021, with the case ID 34-2021-00297646-CU-PO-GDS.

The plaintiffs argue that between July 2017 and July 2020, the City of Folsom failed to maintain proper corrosion control measures at its water treatment plant. This failure allegedly led to an increase in pH levels, making the water corrosive and harmful. The complaint asserts that this “aggressive, corrosive, and substandard water” created a nuisance by causing pinhole leaks in copper pipes, which resulted in significant property damage. The class is defined as all individuals and entities who have owned or leased real property plumbed with copper piping receiving water from the city’s plant since February 23, 2015.

In support of their claims, the plaintiffs presented memoranda from consulting firms Black & Veatch (B&V) and HDR Engineering (HDR), hired by the city to investigate the issue. These reports suggested that high pH levels combined with other factors could contribute to pitting corrosion in copper pipes. However, they also acknowledged other potential causes for these leaks, such as impurities in pipe materials or poor workmanship during installation.

Despite these arguments, the trial court denied class certification on June 6, 2023. The court found that individual issues predominated over common ones because each member's right to recover depended on facts particular to their case. For instance, it would be necessary to determine whether each property experienced pinhole leaks due to corrosive water or other factors like poor workmanship or impurities in the pipes.

The City of Folsom opposed the motion for class certification by presenting a declaration from William Broz, an expert who concluded that poor workmanship was a more likely cause of pinhole leaks than water chemistry. The court accepted Broz’s testimony despite objections from the plaintiffs regarding his qualifications and access to reliable information.

The trial court ruled that proving a nuisance claim would require individualized evidence showing how each putative class member was affected by the city's actions. Therefore, common issues did not predominate over individual ones. The court also noted that defending such a class action could prejudice the city due to the need for individualized inquiries into each member's circumstances.

The plaintiff (appellate) are appealing this decision from the trail court. He contends that the court abused is discretion regarding in determining that individual issue predominated over common issues. 

Justices Duarte, Renner and Boulware all concur that Mr. Malmquist failed to demonstrate that the courts decision is unsupported by substantial evidence or rests on improper criteria or any other erroneous legal assumptions. 

Harold Malmquist is represented by Gene J. Stonebarger from Stonebarger Law while Jeffrey V. Dunn along with Christopher M. Pisano represent Best Best & Krieger LLP for the City of Folsom. The case ID from California 3rd Appellate District, filed on 4/17/24 and certified on 5/13/24 is C099011.

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