Preview
1 KEKER, VAN NEST & PETERS LLP
JOHN W. KEKER - # 49092
2 jkeker@keker.com
DAN JACKSON - # 216091 ELECTRONICALLY
3 djackson@keker.com
WARREN A. BRAUNIG - # 243884 F I L E D
4 wbraunig@keker.com Superior Court of California,
County of San Francisco
NICHOLAS S. GOLDBERG - # 273614
5 ngoldberg@keker.com 09/22/2022
633 Battery Street Clerk of the Court
BY: SANDRA SCHIRO
6 San Francisco, CA 94111-1809 Deputy Clerk
Telephone: (415) 391-5400
7 Facsimile: (415) 397-7188
8 MARK J. HATTAM - # 173667
mhattam@sdcwa.org
9 General Counsel
SAN DIEGO COUNTY WATER AUTHORITY
10 4677 Overland Avenue
San Diego, CA 92123-1233
11 Telephone: (858) 522-6791
Facsimile: (858) 522-6566
12
Attorneys for Petitioner, Plaintiff, and Cross-Defendant EXEMPT FROM FILING FEES
13 SAN DIEGO COUNTY WATER AUTHORITY [GOVERNMENT CODE § 6103]
14
15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 IN AND FOR THE COUNTY OF SAN FRANCISCO
17
SAN DIEGO COUNTY WATER Lead Case No. CPF-14-514004
18 AUTHORITY,
Consolidated with Case Nos. CPF-16-515282
19 Petitioner, Plaintiff and Cross- & CPF-18-516389
Defendant,
20 SAN DIEGO’S OPPOSITION TO
v. METROPOLITAN’S IMPROPER
21 MOTION FOR RECONSIDERATION OF
METROPOLITAN WATER DISTRICT OF THE COURT’S ORDER RE PARTIAL
22 SOUTHERN CALIFORNIA; ALL JUDGMENT
PERSONS INTERESTED IN THE
23 VALIDITY OF THE RATES ADOPTED Dept.: 306
BY THE METROPOLITAN WATER Judge: Hon. Anne-Christine Massullo
24 DISTRICT OF SOUTHERN CALIFORNIA
ON APRIL 8, 2014 TO BE EFFECTIVE Date Filed: May 30, 2014
25 JANUARY 1, 2015 AND JANUARY 1,
2016; and DOES 1-10, Trial Date: May 16–July 1, 2022
26
Respondents, Defendants and
27 Cross-Complainant.
28
SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR RECONSIDERATION
OF THE COURT’S ORDER RE PARTIAL JUDGMENT
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1915135
1 San Diego County Water Authority (San Diego) objects to and opposes the “Response to
2 Court Order” filed by Metropolitan Water District of Southern California (Metropolitan) on
3 September 21, 2022. Metropolitan asks the Court to change its September 14, 2022 Order
4 Granting in Part and Denying in Part San Diego County Water Authority’s Motion for Partial
5 Judgment. Metropolitan’s “Response” is procedurally improper and substantively wrong.
6 Metropolitan’s “Response” is procedurally improper because Metropolitan asks the Court
7 to “modify” or “amend” its order without satisfying the jurisdictional requirements for such
8 reconsideration. (Code Civ. Proc., § 1008, subds. (a), (e); see also, e.g., Even Zohar Construction
9 & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 840 (Even Zohar)
10 [section 1008 is “expressly jurisdictional”]; Lennar Homes of California, Inc. v. Stephens (2014)
11 232 Cal.App.4th 673, 681 [“despite its label,” request for “clarification” was “in substance a
12 motion for reconsideration”]; Cal. Civ. Ctrm. Hbook. & Desktop Ref., § 17:47 (2022 ed.) [“A
13 motion for reconsideration is one that explicitly directs the court’s attention to a previous order
14 and seeks to ‘modify, amend, or revoke’ that order. . . . Whether a motion is actually a motion for
15 reconsideration of a prior ruling is determined by the relief sought, not by the label attached to
16 it.”].) Because Metropolitan did not even attempt to satisfy the jurisdictional requirements of
17 section 1008, its request for modifications to the Court’s order must be denied. (See Code Civ.
18 Proc., § 1008, subd. (e); Even Zohar, 61 Cal.4th at p. 840.)1
19 Furthermore, Metropolitan’s “Response” is substantively meritless. In particular,
20 Metropolitan’s assertion that the Court should not use the term “Non-Metropolitan Water” to
21 refer to the water Metropolitan delivers to San Diego under the Exchange Agreement because,
22 according to Metropolitan, that water is “owned by Metropolitan,” is wrong as a matter of law.
23 As the Court of Appeal held in San Diego County Water Authority v. Metropolitan Water Dist. of
24 Southern California (2017) 12 Cal.App.5th 1124, 1156 (SDCWA I): “The purpose, structure and
25 terms of the contract make it clear that the Water Authority is not purchasing water from
26
1
27 Metropolitan has made a habit of improperly asking this Court to modify its orders without
attempting to satisfy section 1008’s jurisdictional requirements. (See, e.g., Sept. 9, 2020 Order
28 Denying Metropolitan’s Request for Correction [“Met’s request is procedurally improper.”].)
1
SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR RECONSIDERATION
OF THE COURT’S ORDER RE PARTIAL JUDGMENT
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1915135
1 Metropolitan but from Imperial. As the trial court rightly discerned, the Water Authority is
2 exchanging water with Metropolitan ‘to make use of its own independent supplies.’” The water
3 at issue is not Metropolitan’s water. (See ibid.)
4 Metropolitan’s false claims of “ownership” over the water at issue are fundamentally
5 misguided. As the Court of Appeal explained in San Diego County Water Authority v.
6 Metropolitan Water District of Southern California (Cal. Ct. App., Sept. 21, 2021, No. A161144)
7 2021 WL 4272331, *7 (SDCWA II): “Our state Constitution provides that: ‘The right to collect
8 rates or compensation for the use of water supplied to any county, city and county, or town, or the
9 inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the
10 manner prescribed by law.’” (Quoting SDCWA I, supra, 12 Cal.App.5th at p. 1166 [Siggins, J.,
11 concurring and quoting Cal. Const., art. X, § 6].) This constitutional principle follows from the
12 public trust doctrine, under which “the cases do not speak of the ownership of water, but only of
13 the right to its use.” (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 441.)
14 The principle that water rights are a “franchise, and cannot be exercised except by
15 authority of and in the manner prescribed by law” (Cal. Const., art. X, § 6) applies to the
16 Exchange Agreement, as the Court of Appeal held in SDCWA II, supra, 2021 WL 4272331 at
17 page *7. Thus, in addition to the Exchange Agreement’s express incorporation of applicable law
18 and regulation, the Constitution itself incorporates into the Exchange Agreement the requirement
19 that Metropolitan cannot charge more than “fair compensation” as defined by the Wheeling
20 Statutes, which also mandate that the Court “shall give due consideration to the purposes and
21 policies of this article.” (Ibid., quoting SDCWA I, supra, 12 Cal.App.5th at p. 1166 [Siggins, J.,
22 concurring, quoting § 1813 and applying it to the “exchange agreement”].) Metropolitan’s
23 request that the Court deem the water at issue to be “owned by Metropolitan” contravenes
24 fundamental California water law and is, at bottom, an attempt to evade Metropolitan’s duties
25 under the Constitution, the Wheeling Statutes, the Exchange Agreement, and the rulings of this
26 Court and the Court of Appeal. Metropolitan’s improper request must be denied.
27 San Diego also objects to Metropolitan’s misuse of its procedurally improper “Response”
28 to misstate the evidence in this case. Metropolitan falsely asserts that “although in the 1990s San
2
SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR RECONSIDERATION
OF THE COURT’S ORDER RE PARTIAL JUDGMENT
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1915135
1 Diego sought a wheeling agreement, the parties were unable to negotiate one and so in 1998, they
2 instead entered into an exchange agreement.” (Response at p. 7.) Metropolitan cites Brian
3 Thomas’s testimony in support of that assertion, but neither Thomas nor any other witness
4 testified that the parties were “unable to negotiate” a wheeling agreement. On the contrary,
5 Thomas admitted that San Diego proposed an exchange in April 1996, “so at least 31 months
6 before the 1998 agreement, the parties were contemplating an exchange.” (RT 1573:20–1574:3.)
7 The key point, which Metropolitan tries to obscure, is that the parties agreed all along—indeed,
8 Metropolitan itself insisted—that “wheeling principles” would apply to their Exchange
9 Agreement. (PTX751 at p. 1913.) In particular, Metropolitan promised that the “regional supply
10 benefits of the transfer will be recognized in the form of credits toward payment of
11 Metropolitan’s wheeling rate or other commensurate financial mechanism. The regional benefits
12 will be calculated in the same manner as such benefits were calculated for use in the Local
13 Projects and Groundwater Recovery Program.” (Id. at p. 1914.) Metropolitan cannot evade that
14 promise, or the legal duties on which it is based, by falsely claiming ownership of the Exchange
15 Water. (See SDCWA II, supra, 2021 WL 4272331 at p. *7.)
16 Finally, it is important to note why Metropolitan is asking the Court to change its order.
17 Metropolitan wants to argue that the Wheeling Statutes’ “fair compensation” requirements do not
18 apply because the Exchange Water is Metropolitan’s water. But that is wrong for the reasons
19 already stated above and because it contravenes this Court’s rulings on summary adjudication,
20 which follow from the Court of Appeal’s rulings in SDCWA I and SDCWA II. Metropolitan must
21 “act as required by law in determining ‘fair compensation’ . . . under both the Wheeling Statutes
22 and the parties’ exchange agreement under which Metropolitan had a duty to calculate water
23 rates pursuant to applicable law and regulation.” (SDCWA II, supra, 2021 WL 4272331, at *7,
24 emphasis added.) Accordingly, this Court held on summary adjudication that “Metropolitan has a
25 duty to charge no more than fair compensation, which includes reasonable credit for any
26 offsetting benefits pursuant to Water Code section 1811(c).” (May 11, 2022 Order at p. 13.)
27 For all of these reasons, the Court should deny Metropolitan’s procedurally and
28 substantively improper request for changes to this Court’s order on partial judgment.
3
SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR RECONSIDERATION
OF THE COURT’S ORDER RE PARTIAL JUDGMENT
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1915135
1 Respectfully submitted,
2 Dated: September 22, 2022 KEKER, VAN NEST & PETERS LLP
3
4 By: /s/ Dan Jackson
DAN JACKSON
5 Attorneys for SAN DIEGO COUNTY
WATER AUTHORITY
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SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR RECONSIDERATION
OF THE COURT’S ORDER RE PARTIAL JUDGMENT
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1915135
1 PROOF OF SERVICE
2 I am employed in the City and County of San Francisco, State of California in the office of a
member of the bar of this court at whose direction the following service was made. I am over the
3
age of eighteen years and not a party to the within action. My business address is Keker, Van
4 Nest & Peters LLP, 633 Battery Street, San Francisco, CA 94111-1809.
5 On September 22, 2022, I served the following document(s):
6 SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR
RECONSIDERATION OF THE COURT’S ORDER RE PARTIAL JUDGMENT
7
by serving a true copy of the above-described documents in the following manner:
8
9
BY FILE & SERVEXPRESS
10
11 On the date executed below, I electronically served or served via U.S. Mail the documents
described above via File & ServeXpress on the recipients designated on the Transaction
12
Receipt located on the via File & ServeXpress website.
13
Barry W. Lee Attorneys for Defendant and Respondent
14 Justin Jones Rodriguez The Metropolitan Water District of
Manatt, Phelps & Phillips, LLP Southern California
15 One Embarcadero Center, 30th Floor
San Francisco, CA 94111
16
Email: bwlee@manatt.com
17 jjrodriguez@manatt.com
18 Colin C. West Attorneys for Defendant and Respondent
James J. Dragna The Metropolitan Water District of
19 Morgan, Lewis & Bockius LLP Southern California
20 One Market, Spear Street Tower
San Francisco, CA 94105
21 Email: colin.west@morganlewis.com
jim.dragna@morganlewis.com
22
Marcia Scully Attorneys for Defendant and Respondent
23 Heather C. Beatty The Metropolitan Water District of
24 Patricia Quilizapa Southern California
The Metropolitan Water District of Southern
25 California
700 North Alameda Street
26 Los Angeles, CA 90012-2944
Email: mscully@mwdh2o.com
27 hbeatty@mwdh2o.com
28 pquilizapa@mwdh2o.com
PROOF OF SERVICE
Lead Case No. CPF-14-514004
1806178
1 Mira Hashmall Attorneys for Defendant and Respondent
Miller Barondess, LLP The Metropolitan Water District of
2 1999 Avenue of the Stars, Suite 1000 Southern California
3 Los Angeles, CA 90067
Email: mhashmall@millerbarondess.com
4
Patrick Q. Sullivan Attorneys for Real Party in Interest
5 City of Torrance City of Torrance
3031 Torrance Blvd.
6 Torrance, CA 90503-5059
7 Email: psullivan@torranceCA.Gov
8 David J. Aleshire Attorneys for Real Party in Interest
Stephen R. Onstot Municipal Water District of Orange County
9 Christine M. Carson
Aleshire & Wynder, LLP
10
18881 Von Karman Avenue, Suite 1700
11 Irvine, CA 92612
Email: daleshire@awattorneys.com
12 sonstot@awattorneys.com
ccarson@awattorneys.com
13
Steven M. Kennedy Attorneys for Real Party in Interest
14 Brunick, McElhaney & Kennedy Three Valleys Municipal Water District
15 P.O. Box 13130
San Bernardino, CA 92423-3130
16 Email: skennedy@bmklawplc.com
17 Steven P. O’Neill Real Parties in Interest
Aleshire & Wynder, LLP Foothill Municipal Water District; Las
18 2659 Townsgate Road, Suite 226 Virgenes Municipal Water District; West
19 Westlake Village, CA 91361 Basin Municipal Water District; Eastern
Email: soneill@awattorneys.com Municipal Water District; Western
20 Municipal Water District
21
Executed on September 22, 2022, at San Francisco, California.
22
I declare under penalty of perjury under the laws of the State of California that the above is true
23
and correct.
24
25
26 Maureen L. Stone
27
28
PROOF OF SERVICE
Lead Case No. CPF-14-514004
1806178
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Jul 10, 2024 |
CGC23608339
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 8. PLAINTIFF JOHN BERNARD's Motion For Award Of Attorneys Fees, Costs, And Expenses. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. In meantime, counsel shall meet and confer to resolve their differences. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
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1 KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 2 jkeker@keker.com DAN JACKSON - # 216091 ELECTRONICALLY 3 djackson@keker.com WARREN A. BRAUNIG - # 243884 F I L E D 4 wbraunig@keker.com Superior Court of California, County of San Francisco NICHOLAS S. GOLDBERG - # 273614 5 ngoldberg@keker.com 09/22/2022 633 Battery Street Clerk of the Court BY: SANDRA SCHIRO 6 San Francisco, CA 94111-1809 Deputy Clerk Telephone: (415) 391-5400 7 Facsimile: (415) 397-7188 8 MARK J. HATTAM - # 173667 mhattam@sdcwa.org 9 General Counsel SAN DIEGO COUNTY WATER AUTHORITY 10 4677 Overland Avenue San Diego, CA 92123-1233 11 Telephone: (858) 522-6791 Facsimile: (858) 522-6566 12 Attorneys for Petitioner, Plaintiff, and Cross-Defendant EXEMPT FROM FILING FEES 13 SAN DIEGO COUNTY WATER AUTHORITY [GOVERNMENT CODE § 6103] 14 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 IN AND FOR THE COUNTY OF SAN FRANCISCO 17 SAN DIEGO COUNTY WATER Lead Case No. CPF-14-514004 18 AUTHORITY, Consolidated with Case Nos. CPF-16-515282 19 Petitioner, Plaintiff and Cross- & CPF-18-516389 Defendant, 20 SAN DIEGO’S OPPOSITION TO v. METROPOLITAN’S IMPROPER 21 MOTION FOR RECONSIDERATION OF METROPOLITAN WATER DISTRICT OF THE COURT’S ORDER RE PARTIAL 22 SOUTHERN CALIFORNIA; ALL JUDGMENT PERSONS INTERESTED IN THE 23 VALIDITY OF THE RATES ADOPTED Dept.: 306 BY THE METROPOLITAN WATER Judge: Hon. Anne-Christine Massullo 24 DISTRICT OF SOUTHERN CALIFORNIA ON APRIL 8, 2014 TO BE EFFECTIVE Date Filed: May 30, 2014 25 JANUARY 1, 2015 AND JANUARY 1, 2016; and DOES 1-10, Trial Date: May 16–July 1, 2022 26 Respondents, Defendants and 27 Cross-Complainant. 28 SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR RECONSIDERATION OF THE COURT’S ORDER RE PARTIAL JUDGMENT Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1915135 1 San Diego County Water Authority (San Diego) objects to and opposes the “Response to 2 Court Order” filed by Metropolitan Water District of Southern California (Metropolitan) on 3 September 21, 2022. Metropolitan asks the Court to change its September 14, 2022 Order 4 Granting in Part and Denying in Part San Diego County Water Authority’s Motion for Partial 5 Judgment. Metropolitan’s “Response” is procedurally improper and substantively wrong. 6 Metropolitan’s “Response” is procedurally improper because Metropolitan asks the Court 7 to “modify” or “amend” its order without satisfying the jurisdictional requirements for such 8 reconsideration. (Code Civ. Proc., § 1008, subds. (a), (e); see also, e.g., Even Zohar Construction 9 & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 840 (Even Zohar) 10 [section 1008 is “expressly jurisdictional”]; Lennar Homes of California, Inc. v. Stephens (2014) 11 232 Cal.App.4th 673, 681 [“despite its label,” request for “clarification” was “in substance a 12 motion for reconsideration”]; Cal. Civ. Ctrm. Hbook. & Desktop Ref., § 17:47 (2022 ed.) [“A 13 motion for reconsideration is one that explicitly directs the court’s attention to a previous order 14 and seeks to ‘modify, amend, or revoke’ that order. . . . Whether a motion is actually a motion for 15 reconsideration of a prior ruling is determined by the relief sought, not by the label attached to 16 it.”].) Because Metropolitan did not even attempt to satisfy the jurisdictional requirements of 17 section 1008, its request for modifications to the Court’s order must be denied. (See Code Civ. 18 Proc., § 1008, subd. (e); Even Zohar, 61 Cal.4th at p. 840.)1 19 Furthermore, Metropolitan’s “Response” is substantively meritless. In particular, 20 Metropolitan’s assertion that the Court should not use the term “Non-Metropolitan Water” to 21 refer to the water Metropolitan delivers to San Diego under the Exchange Agreement because, 22 according to Metropolitan, that water is “owned by Metropolitan,” is wrong as a matter of law. 23 As the Court of Appeal held in San Diego County Water Authority v. Metropolitan Water Dist. of 24 Southern California (2017) 12 Cal.App.5th 1124, 1156 (SDCWA I): “The purpose, structure and 25 terms of the contract make it clear that the Water Authority is not purchasing water from 26 1 27 Metropolitan has made a habit of improperly asking this Court to modify its orders without attempting to satisfy section 1008’s jurisdictional requirements. (See, e.g., Sept. 9, 2020 Order 28 Denying Metropolitan’s Request for Correction [“Met’s request is procedurally improper.”].) 1 SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR RECONSIDERATION OF THE COURT’S ORDER RE PARTIAL JUDGMENT Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1915135 1 Metropolitan but from Imperial. As the trial court rightly discerned, the Water Authority is 2 exchanging water with Metropolitan ‘to make use of its own independent supplies.’” The water 3 at issue is not Metropolitan’s water. (See ibid.) 4 Metropolitan’s false claims of “ownership” over the water at issue are fundamentally 5 misguided. As the Court of Appeal explained in San Diego County Water Authority v. 6 Metropolitan Water District of Southern California (Cal. Ct. App., Sept. 21, 2021, No. A161144) 7 2021 WL 4272331, *7 (SDCWA II): “Our state Constitution provides that: ‘The right to collect 8 rates or compensation for the use of water supplied to any county, city and county, or town, or the 9 inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the 10 manner prescribed by law.’” (Quoting SDCWA I, supra, 12 Cal.App.5th at p. 1166 [Siggins, J., 11 concurring and quoting Cal. Const., art. X, § 6].) This constitutional principle follows from the 12 public trust doctrine, under which “the cases do not speak of the ownership of water, but only of 13 the right to its use.” (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 441.) 14 The principle that water rights are a “franchise, and cannot be exercised except by 15 authority of and in the manner prescribed by law” (Cal. Const., art. X, § 6) applies to the 16 Exchange Agreement, as the Court of Appeal held in SDCWA II, supra, 2021 WL 4272331 at 17 page *7. Thus, in addition to the Exchange Agreement’s express incorporation of applicable law 18 and regulation, the Constitution itself incorporates into the Exchange Agreement the requirement 19 that Metropolitan cannot charge more than “fair compensation” as defined by the Wheeling 20 Statutes, which also mandate that the Court “shall give due consideration to the purposes and 21 policies of this article.” (Ibid., quoting SDCWA I, supra, 12 Cal.App.5th at p. 1166 [Siggins, J., 22 concurring, quoting § 1813 and applying it to the “exchange agreement”].) Metropolitan’s 23 request that the Court deem the water at issue to be “owned by Metropolitan” contravenes 24 fundamental California water law and is, at bottom, an attempt to evade Metropolitan’s duties 25 under the Constitution, the Wheeling Statutes, the Exchange Agreement, and the rulings of this 26 Court and the Court of Appeal. Metropolitan’s improper request must be denied. 27 San Diego also objects to Metropolitan’s misuse of its procedurally improper “Response” 28 to misstate the evidence in this case. Metropolitan falsely asserts that “although in the 1990s San 2 SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR RECONSIDERATION OF THE COURT’S ORDER RE PARTIAL JUDGMENT Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1915135 1 Diego sought a wheeling agreement, the parties were unable to negotiate one and so in 1998, they 2 instead entered into an exchange agreement.” (Response at p. 7.) Metropolitan cites Brian 3 Thomas’s testimony in support of that assertion, but neither Thomas nor any other witness 4 testified that the parties were “unable to negotiate” a wheeling agreement. On the contrary, 5 Thomas admitted that San Diego proposed an exchange in April 1996, “so at least 31 months 6 before the 1998 agreement, the parties were contemplating an exchange.” (RT 1573:20–1574:3.) 7 The key point, which Metropolitan tries to obscure, is that the parties agreed all along—indeed, 8 Metropolitan itself insisted—that “wheeling principles” would apply to their Exchange 9 Agreement. (PTX751 at p. 1913.) In particular, Metropolitan promised that the “regional supply 10 benefits of the transfer will be recognized in the form of credits toward payment of 11 Metropolitan’s wheeling rate or other commensurate financial mechanism. The regional benefits 12 will be calculated in the same manner as such benefits were calculated for use in the Local 13 Projects and Groundwater Recovery Program.” (Id. at p. 1914.) Metropolitan cannot evade that 14 promise, or the legal duties on which it is based, by falsely claiming ownership of the Exchange 15 Water. (See SDCWA II, supra, 2021 WL 4272331 at p. *7.) 16 Finally, it is important to note why Metropolitan is asking the Court to change its order. 17 Metropolitan wants to argue that the Wheeling Statutes’ “fair compensation” requirements do not 18 apply because the Exchange Water is Metropolitan’s water. But that is wrong for the reasons 19 already stated above and because it contravenes this Court’s rulings on summary adjudication, 20 which follow from the Court of Appeal’s rulings in SDCWA I and SDCWA II. Metropolitan must 21 “act as required by law in determining ‘fair compensation’ . . . under both the Wheeling Statutes 22 and the parties’ exchange agreement under which Metropolitan had a duty to calculate water 23 rates pursuant to applicable law and regulation.” (SDCWA II, supra, 2021 WL 4272331, at *7, 24 emphasis added.) Accordingly, this Court held on summary adjudication that “Metropolitan has a 25 duty to charge no more than fair compensation, which includes reasonable credit for any 26 offsetting benefits pursuant to Water Code section 1811(c).” (May 11, 2022 Order at p. 13.) 27 For all of these reasons, the Court should deny Metropolitan’s procedurally and 28 substantively improper request for changes to this Court’s order on partial judgment. 3 SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR RECONSIDERATION OF THE COURT’S ORDER RE PARTIAL JUDGMENT Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1915135 1 Respectfully submitted, 2 Dated: September 22, 2022 KEKER, VAN NEST & PETERS LLP 3 4 By: /s/ Dan Jackson DAN JACKSON 5 Attorneys for SAN DIEGO COUNTY WATER AUTHORITY 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR RECONSIDERATION OF THE COURT’S ORDER RE PARTIAL JUDGMENT Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1915135 1 PROOF OF SERVICE 2 I am employed in the City and County of San Francisco, State of California in the office of a member of the bar of this court at whose direction the following service was made. I am over the 3 age of eighteen years and not a party to the within action. My business address is Keker, Van 4 Nest & Peters LLP, 633 Battery Street, San Francisco, CA 94111-1809. 5 On September 22, 2022, I served the following document(s): 6 SAN DIEGO’S OPPOSITION TO METROPOLITAN’S IMPROPER MOTION FOR RECONSIDERATION OF THE COURT’S ORDER RE PARTIAL JUDGMENT 7 by serving a true copy of the above-described documents in the following manner: 8 9 BY FILE & SERVEXPRESS 10 11 On the date executed below, I electronically served or served via U.S. Mail the documents described above via File & ServeXpress on the recipients designated on the Transaction 12 Receipt located on the via File & ServeXpress website. 13 Barry W. Lee Attorneys for Defendant and Respondent 14 Justin Jones Rodriguez The Metropolitan Water District of Manatt, Phelps & Phillips, LLP Southern California 15 One Embarcadero Center, 30th Floor San Francisco, CA 94111 16 Email: bwlee@manatt.com 17 jjrodriguez@manatt.com 18 Colin C. West Attorneys for Defendant and Respondent James J. Dragna The Metropolitan Water District of 19 Morgan, Lewis & Bockius LLP Southern California 20 One Market, Spear Street Tower San Francisco, CA 94105 21 Email: colin.west@morganlewis.com jim.dragna@morganlewis.com 22 Marcia Scully Attorneys for Defendant and Respondent 23 Heather C. Beatty The Metropolitan Water District of 24 Patricia Quilizapa Southern California The Metropolitan Water District of Southern 25 California 700 North Alameda Street 26 Los Angeles, CA 90012-2944 Email: mscully@mwdh2o.com 27 hbeatty@mwdh2o.com 28 pquilizapa@mwdh2o.com PROOF OF SERVICE Lead Case No. CPF-14-514004 1806178 1 Mira Hashmall Attorneys for Defendant and Respondent Miller Barondess, LLP The Metropolitan Water District of 2 1999 Avenue of the Stars, Suite 1000 Southern California 3 Los Angeles, CA 90067 Email: mhashmall@millerbarondess.com 4 Patrick Q. Sullivan Attorneys for Real Party in Interest 5 City of Torrance City of Torrance 3031 Torrance Blvd. 6 Torrance, CA 90503-5059 7 Email: psullivan@torranceCA.Gov 8 David J. Aleshire Attorneys for Real Party in Interest Stephen R. Onstot Municipal Water District of Orange County 9 Christine M. Carson Aleshire & Wynder, LLP 10 18881 Von Karman Avenue, Suite 1700 11 Irvine, CA 92612 Email: daleshire@awattorneys.com 12 sonstot@awattorneys.com ccarson@awattorneys.com 13 Steven M. Kennedy Attorneys for Real Party in Interest 14 Brunick, McElhaney & Kennedy Three Valleys Municipal Water District 15 P.O. Box 13130 San Bernardino, CA 92423-3130 16 Email: skennedy@bmklawplc.com 17 Steven P. O’Neill Real Parties in Interest Aleshire & Wynder, LLP Foothill Municipal Water District; Las 18 2659 Townsgate Road, Suite 226 Virgenes Municipal Water District; West 19 Westlake Village, CA 91361 Basin Municipal Water District; Eastern Email: soneill@awattorneys.com Municipal Water District; Western 20 Municipal Water District 21 Executed on September 22, 2022, at San Francisco, California. 22 I declare under penalty of perjury under the laws of the State of California that the above is true 23 and correct. 24 25 26 Maureen L. Stone 27 28 PROOF OF SERVICE Lead Case No. CPF-14-514004 1806178