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1 MANATT, PHELPS & PHILLIPS, LLP Exempt from filing fee pursuant to
Barry W. Lee (SBN 88685) Government Code § 6103
2 Justin Jones Rodriguez (SBN 279080)
One Embarcadero Center, 30th Floor ELECTRONICALLY
3 San Francisco, California 94111 F I L E D
Telephone: (415) 291-7450 Superior Court of California,
4 Facsimile: (415) 291-7474 County of San Francisco
Email: bwlee@manatt.com 05/25/2022
5 Email: jjrodriguez@manatt.com Clerk of the Court
BY: RONNIE OTERO
6 THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA
Deputy Clerk
Marcia Scully (SBN 80648)
7 Heather C. Beatty (SBN 161907)
Patricia J. Quilizapa (SBN 233745)
8 700 North Alameda Street
Los Angeles, CA 90012-2944
9 Telephone: (213) 217-6834
Facsimile: (213) 217-6890
10 Email: hbeatty@METROPOLITANh2o.com
11 Attorneys for Respondent, Defendant, and Cross-Complainant
THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA
12
Additional counsel listed on following page
13
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 FOR THE COUNTY OF SAN FRANCISCO
16
17 SAN DIEGO COUNTY WATER Case No. CPF-14-514004, consolidated with
AUTHORITY, Case Nos. CPF-16-515282 & CPF-18-
18 516389
Petitioner and Plaintiff,
19 Assigned for all purposes to the
v. Hon. Anne-Christine Massullo, Dept. 304
20
THE METROPOLITAN WATER DISTRICT METROPOLITAN WATER DISTRICT
21 OF SOUTHERN CALIFORNIA, ALL OF SOUTHERN CALIFORNIA’S
PERSONS INTERESTED IN THE OPPOSITION TO SAN DIEGO
22 VALIDITY OF THE RATES ADOPTED BY COUNTY WATER AUTHORITY’S
THE METROPOLITAN WATER DISTRICT MOTION IN LIMINE TO EXCLUDE
23 OF SOUTHERN CALIFORNIA ON APRIL 8, EVIDENCE AND TESTIMONY ABOUT
2014 TO BE EFFECTIVE JANUARY 1, 2015 BENEFITS TO SAN DIEGO COUNTY
24 AND JANUARY 1, 2016; and DOES 1-10, WATER AUTHORITY
25 Respondents and Trial Date: May 16-27, 2022
Defendants.
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MANATT, PHELPS &
PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 THE METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA,
2
Respondent, Defendant and Cross-
3 Complainant,
4 vs.
5 SAN DIEGO COUNTY WATER
AUTHORITY,
6
Petitioner, Plaintiff and Cross-
7 Defendant.
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MANATT, PHELPS &
PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 MILLER BARONDESS LLP
Mira Hashmall (SBN 216842)
2 1999 Avenue of the Stars, Suite 1000
Los Angeles, California 90067
3 Telephone: 310-552-4400
Facsimile: 310-552-8400
4 Email: mhashmall@millerbarondess.com
5 MORGAN, LEWIS & BOCKIUS LLP
Colin C. West (SBN 184095)
6 One Market, Spear Street Tower
San Francisco, California 94105-1596
7 Telephone: (415) 422-1000
Facsimile: (415) 422-1101
8 Email: colin.west@morganlewis.com
9 Attorneys for Respondent, Defendant, and Cross-Complainant
THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA
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MANATT, PHELPS &
PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 I. INTRODUCTION
2 San Diego’s unsupported and untimely motion in limine seeks to exclude relevant
3 evidence that is critical to the resolution of numerous causes of action and affirmative defenses
4 still at issue in this trial. What is more, San Diego’s motion (filed in contravention of this Court’s
5 April 19, 2022 Order), mischaracterizes the parties’ prior litigation, including the issues that were
6 decided both at the trial level and on appeal. To use San Diego’s own words, to the extent a
7 motion in limine is useful at all in bench trials, they are “not a good device for resolving what are
8 in effect dispositive motions such as motions for judgment on the pleadings or for summary
9 judgment.” That is what San Diego has attempted to do here.
10 Thus, as further evidenced below, the Court should deny San Diego’s motion in limine.
11 II. LEGAL ARGUMENT
12 A. Evidence of Benefits to Both Parties Has Always Been Part of this Case.
13 The evidence San Diego seeks to exclude has always been part of this lawsuit and San
14 Diego’s disingenuous attempt to argue otherwise fails. As Metropolitan has made clear in its
15 answers, cross-complaints, and briefing, including its pre-trial brief, the “Option 2” benefits that
16 San Diego received as part of the consideration package for the 2003 Amended and Restated
17 Exchange Agreement (“Exchange Agreement”) are highly relevant to Metropolitan’s defenses in
18 this action and to its reformation causes of action.
19 As made clear during San Diego’s case-in-chief, the fundamental issue in dispute is the
20 price term of the Exchange Agreement. On the eve of Metropolitan presenting its first witness,
21 San Diego now seeks to exclude evidence or argument related to the consideration received by
22 both parties in executing the Exchange Agreement. There cannot be a trial on the price term
23 without evidence on the full consideration package received by both parties. Cal. Civ. Code §
24 1550 (consideration is an “essential element[]” of any contract); Cal. Civ. Code § 1605
25 (consideration is defined as “[a]ny benefit conferred”); J.B.B. Inv. Partners Ltd. v. Fair, 37 Cal.
26 App. 5th 1, 9 (2019) (stating sufficient consideration is a core element of any contract claim);
27 Barnes v. W. Pioneer Ins. Co., 151 Cal. App. 2d 669, 671 (1957) (“[T]he essential elements
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MANATT, PHELPS &
PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO WATER AUTHORITY’S MOTION IN LIMINE
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 necessary for the existence of contractual obligations are parties capable of contracting, their
2 consent, a lawful object, and a sufficient cause or consideration.”).
3 Metropolitan’s answers and cross-complaints in the three consolidated cases all plead that
4 “[t]he parties’ consideration package that San Diego proposed and selected provided all
5 appropriate and lawful benefits to both parties.” 1 The benefits received by San Diego are directly
6 relevant to both contract intent and Metropolitan’s reformation causes of action, as well as
7 Metropolitan’s affirmative defenses of mistake of fact, unclean hands, unjust enrichment,
8 changed position, and benefit received – offset. Wolf v. Superior Ct., 114 Cal. App. 4th 1343,
9 1356-57 (2004) (intent of parties can be discerned by “object” of the contract); City of Atascadero
10 v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 68 Cal. App. 4th 445, 474 (1998) (same); see also
11 11A Cal. Jur. 3d Cancellation and Reformation § 90 (“Reformation will not be granted to one
12 who has accepted the other party’s performance with knowledge that the other party is relying on
13 the contract as written.”); Bailard v. Marden, 36 Cal. 2d 703, 708 (1951) (to obtain the benefit of
14 reformation “it is necessary that the parties shall have had a complete mutual understanding of all
15 the essential terms of their bargain”). Not surprisingly, San Diego cites zero authority in support
16 of its position that the benefits it received when executing the Exchange Agreement are not
17 relevant to the contract claims at issue in this lawsuit involving the same agreement.
18 B. The Issue of Benefits to San Diego Was Not Previously Litigated.
19 In a clear misrepresentation to this Court, San Diego argues that the issue of benefits to
20 San Diego under the Exchange Agreement was already litigated and decided in the prior actions.
21 Not so. The prior lawsuits concerned the allocation of State Water Project (“SWP”) transportation
22 costs and Metropolitan’s inclusion of the Water Stewardship Rate (“WSR”)—the lawsuit
23 primarily concerned the validity, or inclusion, of very specific costs in certain of Metropolitan’s
24 generally applicable water rates. Neither benefits of the Exchange Agreement to San Diego nor
25 offsetting benefits were litigated nor decided.
26 1
See MWD’s Cross-Complaint in the 2014 Action at ¶ 49; MWD’s Answer to SDCWA’s FAC in
27 the 2014 Action at ¶ 45; MWD’s Cross-Complaint in the 2016 Action at ¶ 49; MWD’s Answer to
SDCWA’s SAC in the 2016 Action at ¶ 45; MWD’s Cross-Complaint in the 2018 Action at ¶ 54;
28 MWD’s Answer to SDCWA’s Complaint in the 2018 Action at ¶ 50.
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MANATT, PHELPS &
PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 Indeed, San Diego’s effort to insert an offsetting benefits adjudication at the end of the
2 2010/2012 cases was rejected by the trial and appellate courts. Offsetting benefits was never
3 mentioned by a single trial witness nor addressed in the statements of decision. The Court of
4 Appeal rejected San Diego’s attempt to raise offsetting benefits via a petition for rehearing. See
5 Exhibit B (Court of Appeal decision). The California Supreme Court rejected San Diego’s
6 attempt to raise it via a petition for review. See Exhibit D (Cal. Supreme Court decision). In its
7 Supreme Court briefing, San Diego conceded “The Court of Appeal did not address offsetting
8 benefits.” See Exhibit C (San Diego’s Petition for Review), at 30; see also Exhibit A (SDCWA
9 Petition for Rehearing). When San Diego attempted to adjudicate offsetting benefits on remand,
10 Judge Wiss in her Scope of Remand Order found the exact opposite of what San Diego argues in
11 this motion; specifically, that San Diego waived its offsetting benefits argument in the 2010/2012
12 cases. See Exhibit E (Scope of Remand), at 6-7. The issue of offsetting benefits was not litigated. 2
13 C. Judge Karnow’s Decision in the Trial Court Was Reversed.
14 The fact that San Diego spends much of its motion relying on an inoperative statement of
15 decision is telling. As this Court is aware, the Court of Appeal in San Diego Cnty. Water Auth. v.
16 Metro. Water Dist. of S. California, 12 Cal. App. 5th 1124 (2017), reversed the judgment and
17 vacated the peremptory writ of mandate. Id. at 1166. The statement of decision that San Diego
18 relies on, and attaches to, its motion is inoperative. For this reason alone, San Diego’s motion
19 should be denied.
20 Further, Judge Karnow is not the judge in these cases. Indeed, Metropolitan filed a
21 successful C.C.P. 170.6 challenge to Judge Karnow in the 2016 case, which is part of the
22 consolidated lawsuit now before this Court. In ruling on that motion, Judge Karnow specifically
23 found the 2016 case is not a continuation of the 2010/2012 cases. See Exhibit F (Judge Karnow
24 C.C.P. 170.6 Order). This Court, not Judge Karnow, has the authority and discretion to prescribe
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26 San Diego’s argument that because this Court prohibited Ms. Stapleton from testifying
regarding Rate Structure Integrity (“RSI”), that its motion to exclude evidence of the
27 consideration package to both parties under the Exchange Agreement should be granted, is
nonsensical. RSI was actually litigated and actually decided in the prior lawsuits, in the trial
28 court and the Court of Appeal’s opinion.
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MANATT, PHELPS &
PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 the formatting and procedural requirements for hearing motions in limine, and has its own
2 authority to admit relevant evidence to the causes of action and affirmative defenses at issue in
3 this lawsuit—not the past lawsuits. 3
4 D. San Diego’s Approach Would Exclude the Conveyance Facility Owner’s
5 Input on Offsetting Benefits.
6 As this Court recognized in granting summary adjudication on Metropolitan’s eighth
7 cause of action in the 2014 and 2016 cross-complaints, and tenth cause of action in the 2018
8 cross-complaint, Metropolitan as the local public agency owning the water conveyance facility
9 determines the existence of offsetting benefits for the use of the conveyance system and, if
10 applicable, the reasonable credit for any offsetting benefits. Water Code § 1811(c). San Diego’s
11 motion would allow only San Diego to present benefits evidence. Metropolitan – the party
12 responsible for the determination under the statute – would be precluded from presenting its own
13 relevant evidence on a key issue.
14 E. San Diego’s Motion Improperly Masquerades a Dispositive Motion.
15 As San Diego argued in its consolidated opposition to Metropolitan’s timely filed motions
16 in limine, the extent to which motions in limine are useful in bench trials is limited. This is
17 especially true when the motion seeks disposition of an entire cause of action or affirmative
18 defense—something that could only typically be done by a motion for summary adjudication or
19 motion for judgment on the pleadings. The advantages of motions in limine are “to avoid the
20 obviously futile attempt to unring the bell in the event a motion to strike is granted in the
21 proceedings before the jury.” Amtower v. Photon Dynamics, Inc., 158 Cal. App. 4th 1582, 1593
22 (2008) (quoting Hyatt v. Sierra Boat Co., 79 Cal. App. 3d 325, 337 (1978)). However, California
23 case law is clear that these motions are not a good device for resolving what would in effect be
24 dispositive motions as to causes of action and affirmative defenses at issue in a trial. Id. (motions
25 3
For this Court’s convenience, relevant documents from the prior litigation, including (1) San
26 Diego’s petition for rehearing, (2) the Court of Appeal decision on the petition for rehearing, (3)
San Diego’s petition for review, (4) the California Supreme Court’s decision on San Diego’s
27 petition for review, (5) Judge Wiss’s Scope of Remand Order, and (6) Judge Karnow’s 170.6
Order, marked as Exhibits A-F are attached to the Appendix of Evidence (the “Appendix”) in
28 support of Metropolitan’s Opposition filed concurrently herewith.
-4-
MANATT, PHELPS &
PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 in limine “are not designed to . . . replace the dispositive motions”) (emphasis in original). See
2 also Tung v. Chicago Title Co., 63 Cal. App. 5th 734, 758 (2021) (same); McMillin Companies,
3 LLC v. Am. Safety Indem. Co., 233 Cal. App. 4th 518, 529 (2015) (same); Pellegrini v. Weiss, 165
4 Cal. App. 4th 515, 530 (2008) (same). San Diego’s motion is an improper attempt to unfairly
5 adjudicate the contract claims at issue.
6 F. San Diego’s Motion is Untimely.
7 As contemplated by this Court’s April 19, 2022 Order, the deadline to file motions in
8 limine was April 29, 2022. San Diego brings this motion in limine on the eve of resting its case,
9 more than a week after trial has commenced, and more than two weeks after the deadline to bring
10 such a motion pursuant to this Court’s order—which was the result of the parties’ months-long
11 negotiation of a pre-trial and trial calendar. As clear in this Court’s Order, the deadline to file
12 motions in limine was not limited to “pre-trial motions in limine,” nor was there any indication
13 that this Court was receptive or open to hearing such motions during trial.
14 In addition, San Diego’s motion is procedurally defective because “[t]he timing and place
15 of the filing of [motions in limine] are at the discretion of the trial judge.” California Rules of
16 Court, Rule 3.1112. As noted above, this Court already set a motion in limine briefing schedule
17 pursuant to the parties’ stipulation and held the hearing. San Diego’s motion fares no better under
18 the San Francisco County Local Rules, which require that all motions in limine be “personally
19 served at least five (5) days before the date set for trial.” County of San Francisco Local Rule 6.2
20 (emphasis added).
21 Lastly, the untimely motion filed just before Metropolitan anticipates calling its first
22 witness, is a “bombshell” that is disrupting this proceeding. See Kelly v. New W. Fed. Sav., 49
23 Cal. App. 4th 659, 670 (1996) (the point of motions in limine is to “minimize . . . disruptions
24 during trial”).
25 III. CONCLUSION
26 San Diego’s motion in limine should be denied. The motion provides no case law support,
27 mischaracterizes the issues currently being tried and those that were actually litigated and
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MANATT, PHELPS &
PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 resolved in the prior actions, improperly attempts to preclude Metropolitan’s ability to present its
2 case, and is untimely pursuant to this Court’s Order.
3
Dated: May 25, 2022 MANATT, PHELPS & PHILLIPS, LLP
4
5 By:
Barry W. Lee
6
Attorneys for Respondent, Defendant, and
7 Cross-Complainant
METROPOLITAN WATER DISTRICT
8 OF SOUTHERN CALIFORNIA
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MANATT, PHELPS &
PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 PROOF OF SERVICE
2 I, Michelle L. Cooper, declare as follows:
3 I am employed in San Francisco County, San Francisco, California. I am over the age of
eighteen years and not a party to this action. My business address is MANATT, PHELPS &
4 PHILLIPS, LLP, One Embarcadero Center, 30th Floor, San Francisco, California 94111. On
May 25, 2022, I served the within:
5
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA’S
6 OPPOSITION TO SAN DIEGO COUNTY WATER AUTHORITY’S MOTION
IN LIMINE TO EXCLUDE EVIDENCE AND TESTIMONY ABOUT
7 BENEFITS TO SAN DIEGO COUNTY WATER AUTHORITY
8 on the interested parties in this action addressed as follows:
9 (BY ELECTRONIC SERVICE) By transmitting the above documents to a vendor, First
10
Legal, to serve them by File & ServeXpress™ to the parties listed on the Court’s service
list and to the persons at the electronic mail addresses listed below.
11
Dan Jackson
12 Warren A. Braunig
Nicholas Goldberg
13 Max Alderman
Julia Greenberg
14 KEKER, VAN NEST & PETERS LLP
633 Battery Street
15 San Francisco, CA 94111-1809
415.391.5400/Fax: 415.397.7188
16 djackson@keker.com; wbraunig@keker.com;
ngoldberg@keker.com; malderman@keker.com;
17 jgreenberg@keker.com
Attorneys for Petitioner and Plaintiff
18 SAN DIEGO COUNTY WATER
AUTHORITY
19
I declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct and that this declaration was executed on May 25, 2022 at Oakland,
California.
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23
Michelle L. Cooper
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M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
SAN FRA NCI S CO PROOF OF SERVICE
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Jul 12, 2024 |
CGC22601133
Matter on the Discovery Calendar for Friday, Jul-12-2024, Line 2, PLAINTIFFS ELIANE DOS SANTOS VITAL, AN INDIVIDUAL, and WIDES VITAL DA SILVA'S, AN INDIVIDUAL, Motion To Compel Further Responses To Plaintiffs Request For Production Of Documents, Set Two. Pro Tem Judge William Lynn, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: Parties to appear if the motion remains unresolved. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear 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 (DISCOVERY, DEPARTMENT 302 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 302. Any party who contests a tentative ruling must send an email to williamclynn@gmail.com 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. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear 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/JPT)
Ruling
Y.P. VS. WELLS FARGO & COMPANY, ET AL
Jul 10, 2024 |
CGC24613065
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 12. DEFENDANT EARL IGNACIO AND WELLS FARGO BANK, N.A.'s Motion To Compel Arbitration. Defendants Wells Fargo Bank, N.A. and Earl Ignacio's motion to compel arbitration and stay is denied. (The Court's complete tentative ruling has been emailed to the parties.) 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. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. 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)
Ruling
MARY ELIZABETH LEMASTERS VS. SCHOENBERG FAMILY LAW GROUP P.C. ET AL
Jul 09, 2024 |
CGC22600572
Matter on the Law & Motion Calendar for Tuesday, July 9, 2024, Line 4. PLAINTIFF MARY LEMASTERS' MOTION FOR WITHDRAWAL OF ATTORNEY OF RECORD. Hearing required. 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)
Ruling
JOHN P BERNARD VS. BMW OF NORTH AMERICA, LLC ET AL
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)
Preview
1 MANATT, PHELPS & PHILLIPS, LLP Exempt from filing fee pursuant to Barry W. Lee (SBN 88685) Government Code § 6103 2 Justin Jones Rodriguez (SBN 279080) One Embarcadero Center, 30th Floor ELECTRONICALLY 3 San Francisco, California 94111 F I L E D Telephone: (415) 291-7450 Superior Court of California, 4 Facsimile: (415) 291-7474 County of San Francisco Email: bwlee@manatt.com 05/25/2022 5 Email: jjrodriguez@manatt.com Clerk of the Court BY: RONNIE OTERO 6 THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA Deputy Clerk Marcia Scully (SBN 80648) 7 Heather C. Beatty (SBN 161907) Patricia J. Quilizapa (SBN 233745) 8 700 North Alameda Street Los Angeles, CA 90012-2944 9 Telephone: (213) 217-6834 Facsimile: (213) 217-6890 10 Email: hbeatty@METROPOLITANh2o.com 11 Attorneys for Respondent, Defendant, and Cross-Complainant THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA 12 Additional counsel listed on following page 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 FOR THE COUNTY OF SAN FRANCISCO 16 17 SAN DIEGO COUNTY WATER Case No. CPF-14-514004, consolidated with AUTHORITY, Case Nos. CPF-16-515282 & CPF-18- 18 516389 Petitioner and Plaintiff, 19 Assigned for all purposes to the v. Hon. Anne-Christine Massullo, Dept. 304 20 THE METROPOLITAN WATER DISTRICT METROPOLITAN WATER DISTRICT 21 OF SOUTHERN CALIFORNIA, ALL OF SOUTHERN CALIFORNIA’S PERSONS INTERESTED IN THE OPPOSITION TO SAN DIEGO 22 VALIDITY OF THE RATES ADOPTED BY COUNTY WATER AUTHORITY’S THE METROPOLITAN WATER DISTRICT MOTION IN LIMINE TO EXCLUDE 23 OF SOUTHERN CALIFORNIA ON APRIL 8, EVIDENCE AND TESTIMONY ABOUT 2014 TO BE EFFECTIVE JANUARY 1, 2015 BENEFITS TO SAN DIEGO COUNTY 24 AND JANUARY 1, 2016; and DOES 1-10, WATER AUTHORITY 25 Respondents and Trial Date: May 16-27, 2022 Defendants. 26 27 28 MANATT, PHELPS & PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, 2 Respondent, Defendant and Cross- 3 Complainant, 4 vs. 5 SAN DIEGO COUNTY WATER AUTHORITY, 6 Petitioner, Plaintiff and Cross- 7 Defendant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- MANATT, PHELPS & PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 MILLER BARONDESS LLP Mira Hashmall (SBN 216842) 2 1999 Avenue of the Stars, Suite 1000 Los Angeles, California 90067 3 Telephone: 310-552-4400 Facsimile: 310-552-8400 4 Email: mhashmall@millerbarondess.com 5 MORGAN, LEWIS & BOCKIUS LLP Colin C. West (SBN 184095) 6 One Market, Spear Street Tower San Francisco, California 94105-1596 7 Telephone: (415) 422-1000 Facsimile: (415) 422-1101 8 Email: colin.west@morganlewis.com 9 Attorneys for Respondent, Defendant, and Cross-Complainant THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- MANATT, PHELPS & PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 I. INTRODUCTION 2 San Diego’s unsupported and untimely motion in limine seeks to exclude relevant 3 evidence that is critical to the resolution of numerous causes of action and affirmative defenses 4 still at issue in this trial. What is more, San Diego’s motion (filed in contravention of this Court’s 5 April 19, 2022 Order), mischaracterizes the parties’ prior litigation, including the issues that were 6 decided both at the trial level and on appeal. To use San Diego’s own words, to the extent a 7 motion in limine is useful at all in bench trials, they are “not a good device for resolving what are 8 in effect dispositive motions such as motions for judgment on the pleadings or for summary 9 judgment.” That is what San Diego has attempted to do here. 10 Thus, as further evidenced below, the Court should deny San Diego’s motion in limine. 11 II. LEGAL ARGUMENT 12 A. Evidence of Benefits to Both Parties Has Always Been Part of this Case. 13 The evidence San Diego seeks to exclude has always been part of this lawsuit and San 14 Diego’s disingenuous attempt to argue otherwise fails. As Metropolitan has made clear in its 15 answers, cross-complaints, and briefing, including its pre-trial brief, the “Option 2” benefits that 16 San Diego received as part of the consideration package for the 2003 Amended and Restated 17 Exchange Agreement (“Exchange Agreement”) are highly relevant to Metropolitan’s defenses in 18 this action and to its reformation causes of action. 19 As made clear during San Diego’s case-in-chief, the fundamental issue in dispute is the 20 price term of the Exchange Agreement. On the eve of Metropolitan presenting its first witness, 21 San Diego now seeks to exclude evidence or argument related to the consideration received by 22 both parties in executing the Exchange Agreement. There cannot be a trial on the price term 23 without evidence on the full consideration package received by both parties. Cal. Civ. Code § 24 1550 (consideration is an “essential element[]” of any contract); Cal. Civ. Code § 1605 25 (consideration is defined as “[a]ny benefit conferred”); J.B.B. Inv. Partners Ltd. v. Fair, 37 Cal. 26 App. 5th 1, 9 (2019) (stating sufficient consideration is a core element of any contract claim); 27 Barnes v. W. Pioneer Ins. Co., 151 Cal. App. 2d 669, 671 (1957) (“[T]he essential elements 28 MANATT, PHELPS & PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO WATER AUTHORITY’S MOTION IN LIMINE ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 necessary for the existence of contractual obligations are parties capable of contracting, their 2 consent, a lawful object, and a sufficient cause or consideration.”). 3 Metropolitan’s answers and cross-complaints in the three consolidated cases all plead that 4 “[t]he parties’ consideration package that San Diego proposed and selected provided all 5 appropriate and lawful benefits to both parties.” 1 The benefits received by San Diego are directly 6 relevant to both contract intent and Metropolitan’s reformation causes of action, as well as 7 Metropolitan’s affirmative defenses of mistake of fact, unclean hands, unjust enrichment, 8 changed position, and benefit received – offset. Wolf v. Superior Ct., 114 Cal. App. 4th 1343, 9 1356-57 (2004) (intent of parties can be discerned by “object” of the contract); City of Atascadero 10 v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 68 Cal. App. 4th 445, 474 (1998) (same); see also 11 11A Cal. Jur. 3d Cancellation and Reformation § 90 (“Reformation will not be granted to one 12 who has accepted the other party’s performance with knowledge that the other party is relying on 13 the contract as written.”); Bailard v. Marden, 36 Cal. 2d 703, 708 (1951) (to obtain the benefit of 14 reformation “it is necessary that the parties shall have had a complete mutual understanding of all 15 the essential terms of their bargain”). Not surprisingly, San Diego cites zero authority in support 16 of its position that the benefits it received when executing the Exchange Agreement are not 17 relevant to the contract claims at issue in this lawsuit involving the same agreement. 18 B. The Issue of Benefits to San Diego Was Not Previously Litigated. 19 In a clear misrepresentation to this Court, San Diego argues that the issue of benefits to 20 San Diego under the Exchange Agreement was already litigated and decided in the prior actions. 21 Not so. The prior lawsuits concerned the allocation of State Water Project (“SWP”) transportation 22 costs and Metropolitan’s inclusion of the Water Stewardship Rate (“WSR”)—the lawsuit 23 primarily concerned the validity, or inclusion, of very specific costs in certain of Metropolitan’s 24 generally applicable water rates. Neither benefits of the Exchange Agreement to San Diego nor 25 offsetting benefits were litigated nor decided. 26 1 See MWD’s Cross-Complaint in the 2014 Action at ¶ 49; MWD’s Answer to SDCWA’s FAC in 27 the 2014 Action at ¶ 45; MWD’s Cross-Complaint in the 2016 Action at ¶ 49; MWD’s Answer to SDCWA’s SAC in the 2016 Action at ¶ 45; MWD’s Cross-Complaint in the 2018 Action at ¶ 54; 28 MWD’s Answer to SDCWA’s Complaint in the 2018 Action at ¶ 50. -2- MANATT, PHELPS & PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 Indeed, San Diego’s effort to insert an offsetting benefits adjudication at the end of the 2 2010/2012 cases was rejected by the trial and appellate courts. Offsetting benefits was never 3 mentioned by a single trial witness nor addressed in the statements of decision. The Court of 4 Appeal rejected San Diego’s attempt to raise offsetting benefits via a petition for rehearing. See 5 Exhibit B (Court of Appeal decision). The California Supreme Court rejected San Diego’s 6 attempt to raise it via a petition for review. See Exhibit D (Cal. Supreme Court decision). In its 7 Supreme Court briefing, San Diego conceded “The Court of Appeal did not address offsetting 8 benefits.” See Exhibit C (San Diego’s Petition for Review), at 30; see also Exhibit A (SDCWA 9 Petition for Rehearing). When San Diego attempted to adjudicate offsetting benefits on remand, 10 Judge Wiss in her Scope of Remand Order found the exact opposite of what San Diego argues in 11 this motion; specifically, that San Diego waived its offsetting benefits argument in the 2010/2012 12 cases. See Exhibit E (Scope of Remand), at 6-7. The issue of offsetting benefits was not litigated. 2 13 C. Judge Karnow’s Decision in the Trial Court Was Reversed. 14 The fact that San Diego spends much of its motion relying on an inoperative statement of 15 decision is telling. As this Court is aware, the Court of Appeal in San Diego Cnty. Water Auth. v. 16 Metro. Water Dist. of S. California, 12 Cal. App. 5th 1124 (2017), reversed the judgment and 17 vacated the peremptory writ of mandate. Id. at 1166. The statement of decision that San Diego 18 relies on, and attaches to, its motion is inoperative. For this reason alone, San Diego’s motion 19 should be denied. 20 Further, Judge Karnow is not the judge in these cases. Indeed, Metropolitan filed a 21 successful C.C.P. 170.6 challenge to Judge Karnow in the 2016 case, which is part of the 22 consolidated lawsuit now before this Court. In ruling on that motion, Judge Karnow specifically 23 found the 2016 case is not a continuation of the 2010/2012 cases. See Exhibit F (Judge Karnow 24 C.C.P. 170.6 Order). This Court, not Judge Karnow, has the authority and discretion to prescribe 25 2 26 San Diego’s argument that because this Court prohibited Ms. Stapleton from testifying regarding Rate Structure Integrity (“RSI”), that its motion to exclude evidence of the 27 consideration package to both parties under the Exchange Agreement should be granted, is nonsensical. RSI was actually litigated and actually decided in the prior lawsuits, in the trial 28 court and the Court of Appeal’s opinion. -3- MANATT, PHELPS & PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 the formatting and procedural requirements for hearing motions in limine, and has its own 2 authority to admit relevant evidence to the causes of action and affirmative defenses at issue in 3 this lawsuit—not the past lawsuits. 3 4 D. San Diego’s Approach Would Exclude the Conveyance Facility Owner’s 5 Input on Offsetting Benefits. 6 As this Court recognized in granting summary adjudication on Metropolitan’s eighth 7 cause of action in the 2014 and 2016 cross-complaints, and tenth cause of action in the 2018 8 cross-complaint, Metropolitan as the local public agency owning the water conveyance facility 9 determines the existence of offsetting benefits for the use of the conveyance system and, if 10 applicable, the reasonable credit for any offsetting benefits. Water Code § 1811(c). San Diego’s 11 motion would allow only San Diego to present benefits evidence. Metropolitan – the party 12 responsible for the determination under the statute – would be precluded from presenting its own 13 relevant evidence on a key issue. 14 E. San Diego’s Motion Improperly Masquerades a Dispositive Motion. 15 As San Diego argued in its consolidated opposition to Metropolitan’s timely filed motions 16 in limine, the extent to which motions in limine are useful in bench trials is limited. This is 17 especially true when the motion seeks disposition of an entire cause of action or affirmative 18 defense—something that could only typically be done by a motion for summary adjudication or 19 motion for judgment on the pleadings. The advantages of motions in limine are “to avoid the 20 obviously futile attempt to unring the bell in the event a motion to strike is granted in the 21 proceedings before the jury.” Amtower v. Photon Dynamics, Inc., 158 Cal. App. 4th 1582, 1593 22 (2008) (quoting Hyatt v. Sierra Boat Co., 79 Cal. App. 3d 325, 337 (1978)). However, California 23 case law is clear that these motions are not a good device for resolving what would in effect be 24 dispositive motions as to causes of action and affirmative defenses at issue in a trial. Id. (motions 25 3 For this Court’s convenience, relevant documents from the prior litigation, including (1) San 26 Diego’s petition for rehearing, (2) the Court of Appeal decision on the petition for rehearing, (3) San Diego’s petition for review, (4) the California Supreme Court’s decision on San Diego’s 27 petition for review, (5) Judge Wiss’s Scope of Remand Order, and (6) Judge Karnow’s 170.6 Order, marked as Exhibits A-F are attached to the Appendix of Evidence (the “Appendix”) in 28 support of Metropolitan’s Opposition filed concurrently herewith. -4- MANATT, PHELPS & PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 in limine “are not designed to . . . replace the dispositive motions”) (emphasis in original). See 2 also Tung v. Chicago Title Co., 63 Cal. App. 5th 734, 758 (2021) (same); McMillin Companies, 3 LLC v. Am. Safety Indem. Co., 233 Cal. App. 4th 518, 529 (2015) (same); Pellegrini v. Weiss, 165 4 Cal. App. 4th 515, 530 (2008) (same). San Diego’s motion is an improper attempt to unfairly 5 adjudicate the contract claims at issue. 6 F. San Diego’s Motion is Untimely. 7 As contemplated by this Court’s April 19, 2022 Order, the deadline to file motions in 8 limine was April 29, 2022. San Diego brings this motion in limine on the eve of resting its case, 9 more than a week after trial has commenced, and more than two weeks after the deadline to bring 10 such a motion pursuant to this Court’s order—which was the result of the parties’ months-long 11 negotiation of a pre-trial and trial calendar. As clear in this Court’s Order, the deadline to file 12 motions in limine was not limited to “pre-trial motions in limine,” nor was there any indication 13 that this Court was receptive or open to hearing such motions during trial. 14 In addition, San Diego’s motion is procedurally defective because “[t]he timing and place 15 of the filing of [motions in limine] are at the discretion of the trial judge.” California Rules of 16 Court, Rule 3.1112. As noted above, this Court already set a motion in limine briefing schedule 17 pursuant to the parties’ stipulation and held the hearing. San Diego’s motion fares no better under 18 the San Francisco County Local Rules, which require that all motions in limine be “personally 19 served at least five (5) days before the date set for trial.” County of San Francisco Local Rule 6.2 20 (emphasis added). 21 Lastly, the untimely motion filed just before Metropolitan anticipates calling its first 22 witness, is a “bombshell” that is disrupting this proceeding. See Kelly v. New W. Fed. Sav., 49 23 Cal. App. 4th 659, 670 (1996) (the point of motions in limine is to “minimize . . . disruptions 24 during trial”). 25 III. CONCLUSION 26 San Diego’s motion in limine should be denied. The motion provides no case law support, 27 mischaracterizes the issues currently being tried and those that were actually litigated and 28 -5- MANATT, PHELPS & PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 resolved in the prior actions, improperly attempts to preclude Metropolitan’s ability to present its 2 case, and is untimely pursuant to this Court’s Order. 3 Dated: May 25, 2022 MANATT, PHELPS & PHILLIPS, LLP 4 5 By: Barry W. Lee 6 Attorneys for Respondent, Defendant, and 7 Cross-Complainant METROPOLITAN WATER DISTRICT 8 OF SOUTHERN CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- MANATT, PHELPS & PHILLIPS, LLP METROPOLITAN’S OPPOSITION TO SAN DIEGO’S MOTION IN LIMINE ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 PROOF OF SERVICE 2 I, Michelle L. Cooper, declare as follows: 3 I am employed in San Francisco County, San Francisco, California. I am over the age of eighteen years and not a party to this action. My business address is MANATT, PHELPS & 4 PHILLIPS, LLP, One Embarcadero Center, 30th Floor, San Francisco, California 94111. On May 25, 2022, I served the within: 5 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA’S 6 OPPOSITION TO SAN DIEGO COUNTY WATER AUTHORITY’S MOTION IN LIMINE TO EXCLUDE EVIDENCE AND TESTIMONY ABOUT 7 BENEFITS TO SAN DIEGO COUNTY WATER AUTHORITY 8 on the interested parties in this action addressed as follows: 9 (BY ELECTRONIC SERVICE) By transmitting the above documents to a vendor, First 10 Legal, to serve them by File & ServeXpress™ to the parties listed on the Court’s service list and to the persons at the electronic mail addresses listed below. 11 Dan Jackson 12 Warren A. Braunig Nicholas Goldberg 13 Max Alderman Julia Greenberg 14 KEKER, VAN NEST & PETERS LLP 633 Battery Street 15 San Francisco, CA 94111-1809 415.391.5400/Fax: 415.397.7188 16 djackson@keker.com; wbraunig@keker.com; ngoldberg@keker.com; malderman@keker.com; 17 jgreenberg@keker.com Attorneys for Petitioner and Plaintiff 18 SAN DIEGO COUNTY WATER AUTHORITY 19 I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct and that this declaration was executed on May 25, 2022 at Oakland, California. 21 22 23 Michelle L. Cooper 24 25 26 27 28 M ANATT , P HELPS & P HILLIPS , LLP ATTO RNEY S AT LAW SAN FRA NCI S CO PROOF OF SERVICE