The opinion
Filed 8/27/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
----
KIMBERLY R. OLSON, C089953
Plaintiff and Appellant, (Super. Ct. No. SCCVCV2019474)
v.
HORNBROOK COMMUNITY SERVICES
DISTRICT,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Siskiyou County, JoAnn Bicego,
Judge. Affirmed.
Kimbery R. Olson, in pro. per., for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Joseph A. Salazar, Jr., and Ryan Matthews, for
Defendant and Respondent.
Rob Bonta, Attorney General, Robert W. Byrne, Senior Assistant Attorney
General, Russell B. Hildreth, Supervising Deputy Attorney General, Amicus Curiae Brief
of State Water Resources Control Board, upon the request of the Court of Appeal.
Plaintiff Kimberly R. Olson appeals from the trial court’s denial of her motion for
preliminary injunction. In essence, Olson seeks to enjoin defendant Hornbrook
Community Services District (district) from having its employee, defendant Clint
Dingman, perform “certain water-related duties (such as adding Chlorine to the
[district’s] water, operating the Chlorination equipment, and doing water testing), or
being paid to do so.” (Underlining omitted.) Olson asserts Dingman is required to be
certified by the State Water Resources Control Board (board) under the operator
certification program (Health & Saf. Code,1 § 106875 et seq.) (program) as both a water
treatment plant operator and a water distribution system operator to perform such duties
and, because he is not certified as such, the district and Dingman (collectively
defendants) have been violating and continue to violate several provisions of the Health
and Safety Code. She further asserts “Dingman’s illegal operation of the [district’s]
facilities ha[s] resulted in toxic and offensive water, resulting in public and private
nuisances, and waste of taxpayer funds.”
We glean from the trial court’s settled statement that it denied the preliminary
injunction motion because Olson failed to show a strong likelihood of success on the
merits, the injunction would not maintain the status quo, and the balance of hardships
tipped in favor of Dingman. On appeal, Olson argues: (1) the trial court committed
prejudicial evidentiary error by admitting the declaration of Kevin Dixon in opposition to
her motion; (2) the trial court’s finding that “Dingman could operate the [district’s] water
treatment and distribution facilities (including by the addition of Chlorine to the water)
despite not having any of the certifications/licenses required by Health and Safety Code
[sections] 106878, and 106885” is not supported by substantial evidence; (3) the trial
court’s finding “that Dingman ‘would not get a paycheck’, and so (on that sole basis) the
1 All further section references are to the Health and Safety Code unless otherwise
stated.
balance of hardships tipped against granting the motion” is not supported by substantial
evidence; and (4) the district is under a mandatory duty to abide by sections 106876,
106878, and 106885.
We do not reach the merits of Olson’s arguments because we conclude judicial
abstention is appropriate under the facts of this case.2 The preliminary injunction Olson
sought would have required the court to assume the functions of the board. We thus
affirm the order denying her preliminary injunction motion.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Litigation And Ruling On The Preliminary Injunction Motion
Olson filed a complaint for mandamus, declaratory relief, temporary and
permanent injunctive relief, waste of taxpayer funds, and nuisance against defendants.
She alleged, among other things, Dingman is “an employee of the [district] who, among
other tasks, performs operations at the [district’s] water treatment facility, and operates
the water production and distribution system for the town of Hornbrook, CA.” (Fn.
omitted.) Olson asserted that, to perform the foregoing tasks, Dingman must be certified
by the board as both a water distribution system operator and a water treatment plant
operator, but he has not possessed a water distribution system operator certificate since
2 None of the parties specifically raised or addressed the doctrine of judicial
abstention. As explained post, however, the board raised the related doctrine of primary
jurisdiction in its amicus curiae brief and Olson responded to that argument and the
board’s assertion that concerns and complaints regarding certification violations are more
appropriately resolved administratively. Given that Olson had the opportunity to brief
and did address the issue of comity between the trial court and the board (i.e.,
jurisdiction), we did not request further supplemental briefing from the parties as to the
specific application of the judicial abstention doctrine. (People v. Alice (2007) 41 Cal.4th
668, 677 [Government Code section 68081 does not require supplemental briefing when
the parties had “the opportunity to brief any issues that are fairly included within the
issues actually raised”].)
October 1, 2018, and has never possessed a valid water treatment plant operator
certificate.
Olson’s waste of taxpayer funds cause of action is premised on the allegation that
the district expended and continues to expend “monies to pay Clint Dingman for the
performance of criminal acts” because Dingman was and is not certified under the
program. Similarly, as to her nuisance cause of action, Olson alleged she has “suffered
poor water quality at her home” “[a]s a result of the illegal actions of the Defendants,”
presumably due to Dingman’s failure to secure appropriate certification from the board.
Olson filed an accompanying motion for preliminary injunction, seeking to enjoin:
(1) defendants “from continuing to engage in criminal actions in violation of Health and
Safety Code [sections] 106876, 106877, 106878, and/or 106885”; (2) defendants “from
operating the [district’s] water production, treatment, and/or distribution systems by any
means other than the use of certified Water Treatment Operators and Water Distribution
Operators in full compliance with the provisions of Health and Safety Code [sections]
106876, 106877, 106878, and/or 106885”; (3) the district “from permitting Clint
Dingman to operate any water production, treatment, and/or distribution system
belonging to the [district] until such time as he obtains the applicable and appropriate
valid, unexpired Water Treatment and/or Distribution Operator certification(s) from the
State of California”; and (4) defendants “from acting to pay any bill, invoice, employee
payroll, or other compensation, to Defendant Clint Dingman for ‘services’ performed by
him which are, or may be, in violation of Health and Safety Code [sections] 106876,
106877, 106878, and/or 106885.” (Underlining omitted.) Olson requested “[t]hat the
injunction continue until such time as its conditions are met and upon a showing
thereafter of good cause to this Court, or the conclusion of the litigation.” Olson
submitted her declaration in support of the motion.
Defendants opposed the motion, raising several evidentiary objections to Olson’s
declaration and asserting the motion would not preserve the status quo, an injunction may
not issue to enforce a penal law, and no admissible evidence showed defendants had
violated the law. Defendants submitted the declaration of Kevin Dixon in support of
their opposition. Dixon declared, in pertinent summary: he is a consultant for the district
with a valid water distribution system operator certificate; the district’s system is not a
water treatment system; Dingman does not need “a license or certificate for what he does
. . . as a properly trained person under [Dixon’s] direction”; Dixon’s “arrangement with
the [district] is commonplace for small remotely-located water systems such as this,
where it is not financially feasible for them to continually have a licensed Operator on-
site”; the district’s “water system is currently being operated in a proper and lawful
manner and is providing potable water of an acceptable quality to its customers”; and the
district’s “water system had some problems with water quality after the 2018 fire
damaged some of its facilities,” he attempted to test Olson’s water but was unable to gain
access, and he tested Olson’s neighbor’s water “and found it to be acceptable.”
In reply, Olson submitted several objections to Dixon’s declaration and filed the
declaration of Peter Harrell in support of her motion. We do not recount the specifics of
Harrell’s declaration given our disposition of this matter. Suffice it to say, in pertinent
summary, Harrell declared he is certified as both a water treatment plant operator and a
water distribution system operator and is familiar with the district’s system. Harrell
further declared a person must be certified as a water treatment plant operator to add
chlorine to water and to test drinking water for chlorine residuals and other properties,
and “[t]he [district] has a water treatment plant.”
After the trial court denied the motion for preliminary injunction, Olson sought a
certified settled statement in lieu of a reporter’s transcript for appeal pursuant to
California Rules of Court, rule 8.137. In her proposed settled statement, Olson explained
she sought the preliminary injunction based on defendants’ violations of the program
requirements. Her proposed settled statement provided the trial court denied the motion
because: “The Court determined that Dingman was not required to have those
certifications to undertake his duties so long as he was being trained and/or directed by
another, certified operator, Kevin Dixon, and that as a result, Plaintiff could not show a
strong likelihood of prevailing on her claims. The Court also determined that the
proposed injunction would not maintain the status quo, and that the balance of hardship
tipped in favor of Clint Dingman, because he would not get a paycheck if the injunction
were to be granted.”
Defendants filed an opposition to Olson’s proposed settled statement, arguing in
pertinent part that the trial court “did not state that ‘ . . . Dingman was not required to
have those certifications to undertake his disputed duties for the [district] so long as he
was being trained and/or directed by another, certified operator . . . .’ ” Defendants stated
the trial court instead “held that as a ‘trained person’, Dingman was allowed the [sic]
perform the particularly [sic] duties assigned to him by the system operator.”
Olson replied that defendants’ opposition to the proposed settled statement was
without merit and nitpicky.
The trial court signed the settled statement certifying it denied the preliminary
injunction motion based on the statement proposed by Olson, defendants’ opposition
thereto, and other documents, which collectively provided “an accurate summary of the
testimony and other evidence that is relevant to the appellant’s reasons for the appeal.”
The trial court added it was unable to provide a court reporter for the proceeding and did
not retain notes of the hearing. The trial court did, however, “conduct[] independent
research with regard to the issues,” but “[g]iven the passage of time” did “not have an
independent recollection of the argument presented at the hearing or the specific basis for
the ruling made.”3
3 The law and motion minutes from the hearing on the motion merely indicate the
parties were present, the parties were given an opportunity to argue, and the trial court
denied the motion.
Given the parties’ dispute as to the specifics relating to the trial court’s reasoning,
the trial court’s incorporation of the parties’ adverse positions in that regard, and the trial
court’s express statement it had no independent recollection of the grounds for its
decision, we glean from the settled statement that the trial court denied the preliminary
injunction motion because Olson failed to show a strong likelihood of success on the
merits, the injunction would not maintain the status quo, and the balance of hardships
tipped in favor of Dingman.
II
The Board’s Amicus Curiae Brief On Appeal
We requested an amicus curiae brief from the board because it is charged with
regulating, administering, and enforcing the program.4 (See § 106875 et seq.; Cal. Code
Regs., tit. 22, § 63750.10 et seq.) As requested by this court, the board filed an amicus
curiae brief, which was supported by the declarations of Barry Sutter and Darrell
Jennings II. The board stated Olson had “filed an administrative complaint with the State
Water Board making the same allegations about water system operations that she has
alleged in this action.” It further said, “the relevant Hornbrook District employee now
has a valid certificate to operate the District’s water treatment system” and Olson’s
“allegations of wrongdoing will be addressed in the pending administrative action.”
“Because the administrative matter is pending, the [board noted it would] refrain from
drawing conclusions about the evidence in the court action, which is, in any event,
incomplete.”
In the board’s view, the “issues raised in Olson’s motion for preliminary
injunction are moot.” The board explained Dingman’s water distribution system operator
4 We requested that the board file an amicus curiae brief by May 3, 2021, and
directed our clerk’s office to provide a copy of the briefs and the record on appeal to the
board in preparation of doing so.
certificate expired on October 1, 2018, and the board issued him new water treatment
plant and water distribution system operator certificates on December 1, 2020. The board
stated that, “[a]s a Grade 1 water distribution operator, Dingman currently is certified at
the appropriate grade to be a shift operator at the Hornbrook District.”
The board further argued Olson’s “action is not the appropriate vehicle to evaluate
certification status or any issues related to any past or ongoing certification-related
violations” because “[t]here is no private cause of action to enforce a certification
requirement.” “In [its] view, the evidence in the record, including the trial court
declarations, is not sufficient to allow a determination whether all alleged actions were
taken in violation of the certification requirements. The technical complexity of making
these determinations further underscores why private-party complaints about certification
status are properly resolved through administrative complaints to the Board, and not
through private actions filed directly in the courts.” Alternatively, the board suggested
we “stay this action pending resolution of the administrative proceeding” in accordance
with the primary jurisdiction doctrine. (Citing Villanueva v. Fidelity National Title Co.
(2021) 11 Cal.5th 104, 126, fn. 12.)
We provided the parties an opportunity to respond to the board’s brief.5 Olson
submitted a response; defendants did not. Olson objected to the board’s declarations
because the declarations were “not considered by the trial court below,” did “not appear
in the record,” and, in her opinion, were conclusory, lacked foundation, and did not state
facts demonstrating personal knowledge. She disagreed the matter is moot and argued
she is not precluded from seeking the remedies raised in her complaint. Olson believes
the board admitted defendants’ conduct was illegal and it failed to address the trial
court’s statutory interpretation errors. She further believes she stated sufficient facts
5 We granted Olson an extension of time to respond; she filed her response to the
board’s brief on June 23, 2021.
supporting her preliminary injunction request, because the motion “sound[s] primarily in
nuisance (and negligence insofar as the mandatory duty of the [district] and Dingman).”
Olson asserted “there are no pending ‘administrative proceedings’ preventing
assumption of the courts’ jurisdiction.” (Capitalization, bolding, and underlining
omitted.) She countered that the primary jurisdiction doctrine is inapplicable because the
board failed to introduce evidence as to the existence of a pending administrative
proceeding. And, she asserted there is no procedurally mandated process “for dealing
with citizen ‘complaints’ about water operators who violate the laws cited in the
Complaint,” and she did not have to exhaust administrative remedies or, if she did, “she
would be excused from completing it on the basis of futility.” Although Olson disagreed
with the board’s use of the term “administrative complaint,” she did not refute the
board’s statement that she had previously raised the same allegations at issue in this
litigation in communications with the board.
DISCUSSION
A preliminary injunction is an equitable interim remedy (Davenport v. Blue Cross
of California (1997) 52 Cal.App.4th 435, 454) and “does not constitute an adjudication of
the ultimate rights in controversy” (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277,
286). “In deciding whether to issue a preliminary injunction, a trial court weighs two
interrelated factors: the likelihood the moving party ultimately will prevail on the merits,
and the relative interim harm to the parties from the issuance or nonissuance of the
injunction. [Citation.] ‘Generally, the ruling on an application for preliminary injunction
rests in the sound discretion of the trial court. The exercise of that discretion will not be
disturbed on appeal absent a showing that it has been abused.’ ” (Hunt v. Superior Court
(1999) 21 Cal.4th 984, 999.) “ ‘[W]e review the trial court’s order, not its reasoning, and
affirm an order if it is correct on any theory apparent from the record.’ ” (City of
Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1164, fn. 3.)
At the outset, we do not address the board’s mootness assertion and Olson’s
opposition thereto, or Olson’s evidentiary and procedural objections to the declarations
submitted by the board in support of its amicus curiae brief. Even if the matter is moot,
we exercise our discretion to consider whether the preliminary injunction motion was
properly denied under the continuing public importance exception because our
application of the judicial abstention doctrine may “affect future proceedings between the
parties[,6] will have some precedential consequence in future litigation generally” (In re
David B. (2017) 12 Cal.App.5th 633, 654), and “may provide much-needed guidance for
‘the orderly administration of justice’ ” (In re William M. (1970) 3 Cal.3d 16, 25).7
To promote comity between courts and agencies, “[t]here are several different but
closely related doctrines that either require or permit judicial deference to administrative
agencies.” (Bradley v. CVS Pharmacy, Inc. (2021) 64 Cal.App.5th 902, 911.) One such
doctrine is judicial abstention,8 which provides “a court may abstain from adjudicating a
suit that seeks equitable remedies if ‘granting the requested relief would require a trial
6 In her response to the board’s amicus curiae brief, Olson stated Dingman’s current
certifications under the program do “not permanently resolve the issue [between the
parties] since those certifications will expire in the future with no guarantees Dingman
will be able to renew them (having failed to do so at least once already), or that the
[district] will not at some point hire someone else without licenses.”
7 We further decline the board’s invitation to determine whether a private right of
action exists as to violations of the program because this appeal pertains only to the
equitable relief sought via the motion for preliminary injunction, which we resolve under
the doctrine of judicial abstention. The causes of action asserted in Olson’s complaint are
not at issue in this appeal.
8 Another related doctrine is primary jurisdiction, which “applies ‘ “ ‘where a claim
is originally cognizable in the courts’ ” ’ but involves issues ‘ “ ‘which, under a
regulatory scheme, have been placed within the special competence of an administrative
body.’ ” ’ ” (Bradley v. CVS Pharmacy, Inc., supra, 64 Cal.App.5th at p. 912, italics
omitted.) When primary jurisdiction applies, “the ‘ “ ‘judicial process is suspended
pending referral of such issues to the administrative body for its views.’ ” ’ ” (Ibid.)
court to assume the functions of an administrative agency, or to interfere with the
functions of an administrative agency.’ ” (Blue Cross of California, Inc. v. Superior
Court (2009) 180 Cal.App.4th 1237, 1258.) “Courts may [also] abstain when an
administrative agency is better equipped to provide an alternative and more effective
remedy.” (Alvarado v. Selma Convalescent Hospital (2007) 153 Cal.App.4th 1292,
1306.) Abstention is further appropriate if “ ‘the lawsuit involves determining complex
economic policy, which is best handled by the Legislature or an administrative agency,’ ”
or if “ ‘granting injunctive relief would be unnecessarily burdensome for the trial court to
monitor and enforce given the availability of more effective means of redress.’ ” (Arce v.
Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 496.) Abstention is,
however, “generally appropriate only if there is an alternative means of resolving the
issues raised in the [matter].” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th
1342, 1369.)
Olson’s preliminary injunction motion directly implicates the regulatory and
enforcement functions of the board and its expertise in administering the program. The
board is tasked with examining and certifying persons as to their qualifications to operate
water treatment plants and water distribution systems. (§ 106875, subds. (a), (b).) Such
certifications must indicate the classification of water treatment plant and/or distribution
system a person is qualified to operate. (Ibid.) Water distribution systems and water
treatment facilities are classified by assigning to each a numerical level value that
corresponds to the technical expertise required to operate the system or facility. (Cal.
Code Regs., tit. 22, §§ 64413.1, 64413.3.)
A person “in responsible charge” of a water distribution system or water treatment
plant must possess the pertinent valid, unexpired operator certificate equal to or greater
than the classification of the water distribution system or water treatment plant he or she
oversees. (§ 106885, subds. (a)(2), (b)(2).) In contrast, a person who “operates” a water
distribution system or water treatment plant shall possess the pertinent valid, unexpired
operator certificate “of the appropriate grade in accordance with the regulations adopted
[by the board] pursuant to Section 106910.” (§ 106885, subds. (a)(1), (b)(1).) The board
adopted regulations identifying the minimum certification requirements for operators
(including chief operators and shift operators) by the classification assigned to a water
treatment facility or water distribution system. (Cal. Code Regs., tit. 22, §§ 63765,
subds. (a)-(b), 63770, subd. (a).) The board further adopted regulations identifying and
specifying operator examination and certification criteria (id., §§ 63775-63835) and
governing certification renewals, delinquent renewals, and fees (id., §§ 63840-63850).
Section 106876, subdivision (d) defines “ ‘[o]perates a water distribution
system’ ” as “actions or decisions to control the quality or quantity of drinking water in a
water distribution system and includes both of the following: [¶] (1) Supervision of
other persons operating a water distribution system. [¶] (2) Any activity designated by
the state board, in its regulations to implement this article, as an activity that may only be
performed by a person with a water distribution operator certificate.”
The board adopted a regulation stating “[w]ater systems shall utilize only certified
distribution operators to make decisions addressing the following operational activities:
[¶] (1) Install, tap, re-line, disinfect, test and connect water mains and appurtenances.
[¶] (2) Shutdown, repair, disinfect and test broken water mains. [¶] (3) Oversee the
flushing, cleaning, and pigging of existing water mains. [¶] (4) Pull, reset, rehabilitate,
disinfect and test domestic water wells. [¶] (5) Stand-by emergency response duties for
after hours distribution system operational emergencies. [¶] (6) Drain, clean, disinfect,
and maintain distribution reservoirs.” (Cal. Code Regs., tit. 22, § 63770, subd. (b).)
The regulation further provides “[w]ater systems shall utilize either certified
distribution operators or treatment operators that have been trained to make decisions
addressing the following operational activities: [¶] (1) Operate pumps and related flow
and pressure control and storage facilities manually or by using a system control and data
acquisition . . . system. [¶] (2) Maintain and/or adjust system flow and pressure
requirements, control flows to meet consumer demands including fire flow demands and
minimum pressure requirements.” (Cal. Code Regs., tit. 22, § 63770, subd. (c).) And,
“[w]ater systems shall utilize either certified distribution operators or treatment operators
to make decisions addressing the following operational activities: [¶] (1) Determine and
control proper chemical dosage rates for wellhead disinfection and distribution residual
maintenance. [¶] (2) Investigate water quality problems in the distribution system.” (Id.,
subd. (d).)
Section 106876, subdivision (e) defines “ ‘[o]perates a water treatment plant’ ” as
“actions or decisions to control the performance of one or more drinking water treatment
processes and includes both of the following: [¶] (1) Supervision of other persons
operating a water treatment plant. [¶] (2) Any activity designated by the state board, in
its regulations to implement this article, as an activity that may only be performed by a
person with a water treatment operator certificate.” The term “ ‘water treatment
process’ ” is defined as “a process that improves the physical, chemical, biological, or
radiological quality of water in order to render the water acceptable for use as drinking
water” and includes, among other things, chemical addition, disinfection, and blending.
(§ 106876, subd. (m).) The board’s regulations provide that sample collection and field
tests of, among other things, chlorine may be performed by uncertified personnel trained
to perform such duties by the board, a certified laboratory, or a certified and appropriately
trained operator. (Cal. Code Regs., tit. 22, § 64534, subd. (b).)
Section 106878 identifies the actions constituting violations punishable as
misdemeanors or for which civil liability may be imposed, including operating a water
treatment plant or a water distribution system without holding the pertinent valid,
unexpired operator certificate. (§ 106878, subd. (a)(1)-(2).) Civil liability may be
imposed administratively only by the board or the Attorney General in an action in
superior court upon request of the board. (§ 106879, subd. (a).) Section 106877 further
delineates the grounds upon which administrative disciplinary actions may be taken by
the board against certificate holders -- e.g., suspending, revoking, or refusing to grant or
renew a certificate, reprimanding a certificate holder, or placing a certificate holder on
probation. (§ 106877, subds. (a), (b).) Section 106879, subdivision (b) provides that the
remedies identified in the program statutes do “not supersede or limit, any other remedy,
civil or criminal, except that civil liability may not be imposed both administratively and
by the superior court for the same violation.”
The equitable relief Olson seeks is grounded in precluding Dingman from
(1) performing duties for the district that Olson asserts require certification under the
program and (2) being paid to perform such tasks. To adjudicate Olson’s motion, the
trial court had to determine her likelihood of success on the merits -- more specifically,
whether the tasks Dingman performs for the district require certification under the
program because that issue is the genesis of Olson’s claims. The board, not the trial
court, is in the best position to make that determination because the board is tasked with
determining when certification is required. As demonstrated by the board’s amicus
curiae brief, that question is fact-specific and complex considering the statutory and
regulatory scheme detailed ante.
In its amicus brief, the board explained “[a] person who does not hold the
appropriate operator certificate may perform supporting, non-operational duties at a water
distribution system, subject to any other applicable requirements.” Here, however, “the
trial court declarations and the documentation provided do not give a full description of
employee actions, the reasons for those actions, or any other potentially relevant
information regarding those actions” to make an appropriate compliance determination.
Thus, although it appears Dingman was engaged in some tasks that “may have required a
current, valid operator certificate,” “[t]he evidence is unclear as the specifics about what
the employee was doing. [¶] To determine whether an activity is operational (requiring
certification), a court must be provided with some details about the activity, and not
simply a general description. For example, simply knowing that an employee has opened
a fire hydrant and thereby moved water through a line does not provide sufficient
information to make the required determination; rather, a court must know whether
opening the fire hydrant affected the quality or characteristics of drinking water in the
system by removing system water and replacing it with new water. On the other hand,
briefly opening a fire hydrant to check system pressure or flow, or opening a fire hydrant
for other reasons while properly coordinating with the appropriate certified operator
would be non-operational duties and not require an operator certificate.” (Italics added.)
As another example, the board said “determining whether changing the ‘barrel’ of
chlorine that feeds the chlorine injector to the water system is an operational duty
requires additional information because the disinfection process and change to the quality
or characteristics of drinking water in the water system does not occur until chlorine is
added to the drinking water. [Citing Harrell’s declaration in support of Olson’s
preliminary injunction motion.] If the injector was offline and not feeding chlorine to the
system, then changing the ‘barrel’ would not be an operational duty. Turning the injector
back on after changing the ‘barrel’ or taking any other action that effects the rate of
chlorine being added to the drinking water, however, is an operational duty.
“The trial court declarations do not provide enough information to determine
where Dingman added the chlorine tablets. For example, the Harrell declaration states
that the timesheets show that Dingman added chlorine to the water system, but they do
not show where Dingman added chlorine. [Citation.] Adding chlorine to a chlorine
solution tank that is not delivering chlorine to the water would be a non-operational duty.
Adding chlorine to drinking water either in the distribution system or well, or to the
solution tank that is currently delivering chlorine to the drinking water, however, is an
operational duty because of its effect on the quality or characteristics of the drinking
water and the water system.”
In the board’s opinion, “[b]ased on the information in the record, refilling chlorine
solution tanks, changing and repairing chlorine pumps, changing chlorine gas cylinders,
and adding salt to the chlorine generator all appear to be non-operational duties that are
performed while the various chlorine injector systems are offline and not actively feeding
the water system.” Further, “[r]eading meters appears to be a non-operational duty
because it is simply gathering and recording information.” The board also explained that
“[a] person who is not certified as a water treatment operator or a water distribution
operator also can obtain and test water for residual chlorine content if the person has been
trained do so by the State Water Board, a certified laboratory, or a certified water
treatment operator or certified water distribution operator who has been trained by the
State Water Board or a certified laboratory.” (Citing Cal. Code Regs., tit. 22, § 64534,
subd. (b).)
The board’s examples and explanations demonstrate the regulatory knowledge and
expertise needed to resolve the competing assertions as to whether Dingman’s actions to
refill chlorine solution tanks, change and repair chlorine pumps, change chlorine gas
cylinders, add chlorine tablets, add salt to the chlorine generator, read meters, and obtain
and test water for residual chlorine content require certification. It is a function of the
board to distinguish between operational and nonoperational tasks and to identify which
tasks require certification. (§ 106876, subds. (d), (e); Cal. Code Regs., tit. 22, § 63770,
subds. (b)-(d).) The board is also in the best position to determine whether the district’s
system is/includes a water treatment plant within the meaning of the statutes and
regulations, as disputed in the Dixon and Harrell declarations. That is because it is a
function of the board to determine the level of technical expertise required to operate the
different categories of systems or facilities. (Cal. Code Regs., tit. 22, §§ 64413.1,
64413.3.)
Olson attempts to demerit the board’s examples and explanations, stating the
board’s argument “essentially that the case is too complex for the Court to handle and
that more evidence should be presented by the parties, is fallacious in the face of
acknowledgement of prohibited conduct by Dingman, and when properly considered as a
nuisance, illegal contract, and waste of public funds action.” Olson further believes
“there is clearly sufficient evidence presented in the record to establish the facts that
Dingman did not have proper licenses at the time he was working for the [district], that
both he and the [district] knew that . . . , that Dingman added chlorine to the [district’s]
water system, and that as a result, excessive, dangerous levels of Chlorine were present in
the water, which harmed Olson and her property, and so establish all of the necessary
elements for a nuisance cause of action (and injunction).” (Fn. omitted.) In the
accompanying footnote, Olson argued the board admitted Dingman did not previously
have proper certifications.
Contrary to Olson’s claims, and as the board explained, the board “refrain[ed]
from drawing conclusions about the evidence in the court action.” The board said some
of the tasks Dingman performed “may have required a current, valid operator certificate,”
but that does not equal an admission that Dingman and the district violated the program
requirements, as Olson suggests. (Italics added.) The board clearly and repeatedly stated
more information and detail are needed to make such a determination.
Whereas Olson believes the issue presented by her preliminary injunction motion
is easily resolved by a court (because, in her view, her arguments and evidence establish
certification is required), we disagree. The board’s amicus curiae brief highlights the
complexity in determining which tasks are operational (requiring certification) and which
are non-operational (not requiring certification). Principles of comity apply under these
facts.
The board has an interest in securing uniformity in determinations as to which
tasks must be performed by certified operators. In that regard, the board knows which
questions to ask, the nuances distinguishing operational and non-operational tasks, and
the scope of the tasks requiring certification. The board is better equipped to determine
individual compliance with the program requirements, and judicial abstention would
assist in avoiding encroachment on the board’s administrative functions. (Cf. Arce v.
Kaiser Foundation Health Plan, Inc., supra, 181 Cal.App.4th at pp. 499-500 [abstention
was inappropriate because resolution of the claim merely required the court to interpret
relevant statutory and contractual provisions].) The board “has the power, expertise and
statutory mandate to regulate and enforce [the program],” thus providing an “alternative
and more effective means of ensur[ing] compliance with [the program’s requirements].”
(Alvarado v. Selma Convalescent Hospital, supra, 153 Cal.App.4th at p. 1306; cf. Klein
v. Chevron U.S.A., Inc., supra, 202 Cal.App.4th at pp. 1369-1370 [judicial abstention
inappropriate where “the only action the Legislature ha[d] taken in regard to the sale of
non-temperature-adjusted fuel [was] adopting a statute directing the [California Energy
Commission] to conduct a cost-benefit analysis of implementing [automatic temperature
compensation] fuel pumps at retail stations” and “no government entity ha[d] attempted
to resolve potential harms caused by the sale of non-temperature-adjusted fuel at the
retail level or otherwise established an alternative mechanism for addressing those
harms”].)
For these reasons, we conclude judicial abstention is appropriate. The preliminary
injunction Olson sought would have required the court to assume the functions of the
board. We thus affirm the order denying her preliminary injunction motion.
DISPOSITION
The order denying Olson’s motion for preliminary injunction is affirmed.
Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-
(2).)
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Renner, J.