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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 05/23/2022
633 Battery Street Clerk of the Court
BY: RONNIE OTERO
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 APPENDIX TO SAN DIEGO COUNTY
v. WATER AUTHORITY’S TRIAL MOTION
21 IN LIMINE TO EXCLUDE
METROPOLITAN WATER DISTRICT OF DOCUMENTARY EVIDENCE AND
22 SOUTHERN CALIFORNIA; ALL TESTIMONY ABOUT BENEFITS TO SAN
PERSONS INTERESTED IN THE DIEGO COUNTY WATER AUTHORITY
23 VALIDITY OF THE RATES ADOPTED
BY THE METROPOLITAN WATER Dept.: 306
24 DISTRICT OF SOUTHERN CALIFORNIA Judge: Hon. Anne-Christine Massullo
ON APRIL 8, 2014 TO BE EFFECTIVE
25 JANUARY 1, 2015 AND JANUARY 1, Date Filed: May 30, 2014
2016; and DOES 1-10,
26 Trial Date: May 16–27, 2022
Respondents, Defendants and
27 Cross-Complainant.
28
APPENDIX TO TRIAL MOTION IN LIMINE RE BENEFITS TO SAN DIEGO
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1858768
1 San Diego County Water Authority respectfully submits this Appendix to its motion in
2 limine filed herewith. The attachments, highlighted for the Court’s convenience, are as follows:
3 Attachment A: A true and correct copy of highlighted excerpts of the rough trial
4 transcript for May 17, 2022 (Day 2).
5 Attachment B: A true and correct highlighted copy of this Court’s first Statement of
6 Decision in the prior cases, filed on April 24, 2014.
7 Attachment C: A true and correct copy of highlighted excerpts of Attachment 1 of
8 Metropolitan’s Resolution 8520, which are in Metropolitan’s administrative record for the 2014
9 action with bates numbers ending in 85592–93, and which are referred to in this Court’s April 24,
10 2014 Statement of Decision (Attachment B) at page 38 (using the page numbers for the 2012
11 record, 002455–56).
12 Attachment D: A true and correct copy of highlighted excerpts of the rough trial
13 transcript for May 19, 2022 (Day 4).
14
15 Respectfully submitted,
16 Dated: May 23, 2022 KEKER, VAN NEST & PETERS LLP
17
18 By: /s/ Dan Jackson
DAN JACKSON
19 Attorneys for SAN DIEGO COUNTY
WATER AUTHORITY
20
21
22
23
24
25
26
27
28
1
APPENDIX TO TRIAL MOTION IN LIMINE RE BENEFITS TO SAN DIEGO
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1858768
ATTACHMENT A
Page 1
* * * * *
A realtime rough draft is available to all
counsel. Receipt of such is only available with a
certified copy order. There is an additional charge for
the rough draft. The realtime draft is unedited and
uncertified and may contain untranslated stenographic
symbols, reporter notes, misspelled proper names, and/or
nonsensical word combinations. All such entries will be
corrected on the final certified transcript.
Due to the need for the reporter to correct
entries prior to certification, it is agreed this
realtime draft will be used solely for the purpose of
augmenting counsel's notes and not for use, including
citation, in any court proceeding or distribution to any
other party(s). CCP Section 2025(r)(2).
When prepared as a rough draft transcript, the
transcript of the proceedings may not be certified and
may not be used, cited, or transcribed as the certified
transcript of the proceedings. The rough draft
transcript may not be cited or used in any way or at any
time to rebut or contradict the certified transcript of
said proceedings as provided by the court reporter.
Page 2
1 May 17, 2022.
2 Trial volume two.
3 8:36 a.m..
4
5 THE COURT: All right. Good morning. Thank
6 you. We're back on the record in the San Diego Water
7 vs. Metropolitan Water District matter. Mr. Cushman is
8 still on the stand. Cross-examination may continue,
9 Mr. Lee.
10 MR. LEE: I think we have one housekeeping
11 matter with Mr. Braunig.
12 THE COURT: Yeah.
13 MR. BRAUNIG: The housekeeping matter is our
14 damages expert has COVID.
15 THE COURT: Okay.
16 MR. BRAUNIG: So the COVID chronicles continue.
17 None of us have had contact with him since last Tuesday.
18 The person who had contact him last Tuesday is
19 Mr. Goldberg, who tested negative, so we don't think
20 there's an issue with exposure to anybody who's going to
21 be in court. The issue, obviously, is that our witness
22 is sick and he's symptomatic. So --
23 THE COURT: I'm sorry to hear that.
24 MR. BRAUNIG: So the -- so what we're talking
25 about with Metropolitan's counsel is figuring out -- I
Page 44
1 part of that program under its LRP program, correct?
2 A. I don't know the status of that, no.
3 Q. You --
4 A. I don't know.
5 Q. You've said during your direct testimony that
6 you keep up on water issues in San Diego. So you didn't
7 keep up on that one?
8 MR. BRAUNIG: Objection, argumentative.
9 THE COURT: Sustained.
10 By MR. LEE:
11 Q. You don't -- you didn't do any research on that
12 issue?
13 A. No.
14 Q. I don't have any further questions at this
15 time. Thank you Mr. Cushman?
16 THE COURT: Very well. May the witness be
17 excused?
18 MR. BRAUNIG: Yes, thank you.
19 THE COURT: Very well, Mr. Cushman, thank you
20 so much for your testimony.
21 9:37 a.m. witness was excused.
22 THE COURT: Sir, next witness for San Diego.
23 MR. JACKSON: The Water Authority calls Robert
24 Campbell.
25 THE COURT: Thank you.
Page 45
1 MR. LEE: Your Honor, can I just have a minute
2 to move binders, folders?
3 THE COURT: Yes, you may. I think by the time
4 the witness gets to the stand and wipes down the stand,
5 if he wishes to, you'll have your time. Off the
6 record.
7 9:39 a.m. New witness.
8 Witness sworn
9 THE WITNESS: Yes, I do.
10 COURT CLERK: Thank you. Please be seated. If
11 you'll take a moment and adjust the microphone so it's
12 positioned a little better for you. Then you would
13 state and spell your first and last name, please.
14 THE WITNESS: Yes. My name is Robert
15 R-O-BE-R-T, Campbell, C a.m. P-B-L-L.
16 MR. JACKSON: I think you forgot the E.
17 THE WITNESS: C a.m. BE-L-L. I kind of run
18 them together.
19 MR. JACKSON: Your Honor, I have binders for
20 the court and for the witness, if I may step forward.
21 THE COURT: Thank you.
22 ---oOo---
23 DIRECT EXAMINATION
24 BY MR. JACKSON:
25 Q. Good morning, Mr. Campbell.
Page 189
1 correct?
2 A. Yes.
3 Q. It could deliver that water from storage,
4 correct?
5 A. Correct.
6 Q. And is it based on your experience generally
7 true that the State Water Project water has a higher
8 quality level than the Colorado River water?
9 A. That's not generally true. I don't agree with
10 your supposition on that.
11 Q. Okay. Which water, Colorado River water or
12 State Water Project water, has a higher salinity
13 content, if you know, in general?
14 A. The Colorado River has a higher salinity count.
15 Q. And --
16 A. And -- go ahead.
17 Q. Okay. Thank you. And as a general rule under
18 the 1998 exchange agreement, did San Diego want to have
19 a blend of Colorado River water and State Water Project
20 water delivered as exchange water, if you know?
21 A. It wasn't a "must have" that we have a blend.
22 It might not even be operationally achievable by
23 Metropolitan.
24 Q. Okay.
25 A. I think Metropolitan made that clear.
Page 190
1 Q. All right. San Diego under the 1998 exchange
2 agreement preferred to have a blend of state -- of S-W-P
3 water and Colorado River aqueduct water correct?
4 MR. JACKSON: Objection, asked and answered.
5 THE COURT: Overruled. You may answer, sir.
6 THE WITNESS: Your premise was that under the
7 1998 agreement that San Diego preferred to have a blend.
8 That is not correct.
9 BY MR. LEE:
10 Q. Okay?
11 A. We never made that assertion that we wanted to
12 have a blend under the 1998 agreement. Now, San Diego
13 may have wanted that in prior times, but not in the 1998
14 agreement.
15 Q. Well, in the negotiations that led up to the
16 1998 agreement, did San Diego tell Metropolitan that it,
17 San Diego, would prefer to have a blend of exchange
18 water rather than just Colorado River water?
19 A. You know, it may not have been operationally
20 achievable. I don't think it was our role to tell them
21 how their -- what they're going to provide. It was
22 simply -- it had to be a like quantity and quality, and
23 I'd like to point out that while Colorado River water
24 has a higher salinity -- yes a higher salinity, State
25 Water Project has its own water quality problems. It
Page 191
1 has a higher bromide content and when those mix down
2 into the treatment plants, that bromide content, it --
3 if it mixes with chlorine, it produces trihalomethanes,
4 and trihalomethanes are a known carcinogen. So
5 Metropolitan was going to have to undertake ozone
6 treatment at all of its treatment plants to alleviate
7 that concern in its water quality from the State Water
8 Project.
9 Q. Move to strike the answer, nonresponsive.
10 MR. JACKSON: It is responsive, your Honor.
11 THE COURT: The question was a yes-or-no
12 question, so I am going to strike the answer. Do you
13 wish to have it read back to the witness?
14 MR. LEE: Yes. If we could just have the
15 question read back, and sir, if you could just answer my
16 question and San Diego lawyers can follow up.
17 THE COURT: And if you don't know, just say you
18 don't know.
19 MR. LEE: Right.
20 (Record read.)
21 THE WITNESS: We didn't specifically say that.
22 THE COURT: Very well.
23 BY MR. LEE:
24 Q. Okay. I'm going to try to get one last
25 document in, your Honor, before 2:30. Take a look at
Page 193
1 Question, given how long we've been with these
2 witnesses, does it really realistic that we're going to
3 do this case in the time that's been allotted any want
4 you to think about that and not answer me precipitously
5 please. You need to plan. I need to plan. You need to
6 plan. So you need to be realistic. I'm going through a
7 lot of documents I know they're foundational you need to
8 get them in, but I want you to be able get your case in,
9 but if the time estimate at any point along here -- I
10 need to know. So I want you to meet and confer amongst
11 yourselves, and I just don't see that it's going to get
12 done. I'm going to try to make the 26th a half day. So
13 we'll be in session in the morning, and I'll have my
14 other obligation come in in the afternoon. So that will
15 be the only other limitation that I see. All right?
16 Thank you so much.
17 2:30 p.m.
18
19
20
21
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25
ATTACHMENT B
55350253
Apr 24 2014
FIL E
04:14PM
San Francisco County Superio
APR 2 4 2014
~LE~~ C?UR T
BY. ----"-~-D eputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
SAN DIEGO COUNTY WATER Case No. CPF-10-510830
AUTHORITY, Case No. CPF-12-512466
Plaintiff/Petitioner,
vs. STATEMENT OF DECISION ON RATE
METROPOLITAN WATER DIST. OF SETTING CHALLENGES
SOUTHERN CALIFORNIA, et al.
Defendants/Respondents.
San Diego County Water Authority (San Diego) challenges the legality of four rates set
by Metropolitan Water District of Southern California (Met).
San Diego alleges three defects. First, San Diego argues that Met improperly allocates
the bulk of Met's costs under its contract with the California Department of Water Resources'
State Water Project to the System Access Rate and the System Power Rate. Second, San Diego
contends that Met illegally treats all of its costs for conservation and local water supply
development programs as transportation costs by recovering them through the Water
Stewardship Rate, which Met charges as a transportation rate. The asserted result of these
misallocations is that parties who use Met' s wheeling services pay an inflated rate for that
service.
Third, San Diego asserts that, while Met incurs significant costs to accommodate the
practice by some member agencies of"rolling on" to Met's system and buying more water in dry
years, and "rolling off' ofMet's system and substantially reducing their purchases from Met in
average years (dry-year peaking), Met's rates fail to assign those costs to the member agencies
that cause the dry-year peaking costs to be incurred or that benefit from the availability of dry-
year peaking supplies.
I find for San Diego on the first two issues and for Met on the third.
Procedural History
San Diego filed suit challenging Met 's 2011 and 2012 rates on June 11, 2010 (the 2010
case). 1 The operative Third Amended Complaint in the 2010 case includes six causes of action:
the Rate Challenges (Causes of Action# 1-3); breach of contract (Cause of Action #4);
declaratory relief as to RSI (Cause of Action# 5); and declaratory relief as to preferential rights
(Cause of Action #6). Within the Rate Challenges, San Diego asserts that Met's 2011 and 2012
rates violate numerous constitutional and statutory provisions, namely: Article XIII A of the
California Constitution (Proposition 13) and its implementing statute, Government Code§
50076; the Wheeling Statute, Water Code§ 1810 et seq.; Government Code§ 54999.7(a);
1 San Diego and Met have driven this litigation, but they are not the only parties.
Imperial Irrigation District
answered the 2010 Complaint, the Third Amended Complaint in the 2010 action, and the 2012 Complaint alleging
that some or all ofMet's actions violated Water Code§§ 1810-1814. The Utility Consumers' Action Network also
answered the 2010 complaint seeking invalidation of the rates, but not the operative Third Amended Complaint in
that action or the 2012 complaint. The City of Glendale, Municipal Water District of Orange County, City of
Torrance, Las Virgenes Municipal Water District, West Basin Municipal Water District, Foothill Municipal Water
District, and City of Los Angeles all answered the 2010 Complaint, the operative Third Amended Complaint in that
action, and the 2012 Complaint siding with Met. Three Valleys Municipal Water District answered the 2010 and
2012 Complaints siding with Met, but not the Third Amended Complaint in the 2010 action. Western Municipal
Water District and Eastern Municipal Water District answered the 2012 Complaint, siding with Met.
2
Government Code§ 66013; section 134 of the Metropolitan Water District Act; and California
common law.
On June 8, 2012, after Met approved rates for calendar years 2013 and 2014 that relied on
many of the same cost allocations and ratemaking determinations, San Diego filed a second
lawsuit (the 2012 case). The 2012 case includes four causes of action: rate challenges to the
2013 and 2014 rates (Causes of Action# 1-3) and another claim for breach of contract (Cause of
Action# 4). Within the 2012 rate challenges, San Diego alleges that Met's 2013 and 2014 rates
violate the same common law, constitutional and statutory provisions as in the 2010 case, as well
as Article XIII C § I of the California Constitution (Proposition 26).
On September 20, 2013, the parties filed cross-motions for summary adjudication. San
Diego moved for summary adjudication on the RSI cause of action. Met moved for summary
adjudication on the RSI cause of action, the preferential rights cause of action, and both breach
of contract causes of action. By order dated December 4, 2013, I denied San Diego's motion for
summary adjudication on RSI, granted Met's motion for summary adjudication on RSI, and
denied Met' s other motions for summary adjudication.
I bifurcated the breach of contract causes of action and set them for trial at a date
following resolution of the rate challenges. The parties agreed to postpone the preferential rights
claim as well; it will be heard at the same time as the breach of contract claims. The rate
challenges were set for trial on December 17, 2013.
The trial for the rate challenges in the 2010 case and the 2012 case commenced on
December 17, 2013, and was completed, except for closing arguments, on December 23. The
parties filed post-trial briefs on January 17, 2014; closing arguments were heard on January 23,
2014.
3
I issued a tentative determination and proposed statement of decision February 25, 2014.
I provided the parties additional time for objections, which were filed March 27.
This statement of decision follows.
Factual Background
1. The Parties
Met was established in 1928 by the Metropolitan Water District Act. Stats. 1969, ch. 209
as amended; Water Code Append.§§ 109-134. Met acts as a supplemental wholesale water
supplier to 26 cities and water districts throughout Southern California (Met's member agencies).
San Diego is one ofMet's member agencies, and has been since 1946. Met's member agencies
govern Met through their representatives on Met' s Board of Directors. Water Code Append. §§
109-50, 109-51, 109-55. Each member agency has proportional representation on the Board of
Directors, and is entitled to at least one seat on the Board, plus an additional seat for every full
3% of the total assessed value of the property within the member agency's service area that is
taxable for district purposes. Id. at§§ 51-52.
Member agencies are not obligated to buy water from Met. If member agencies have
access to local sources of water, they may freely opt out fully or partially from Met's services.
JTX-2 (AR2012-016429) at AR2012-016440; Metropolitan Wat. Dist. ofS. Cal. v.Imperial
Irrigation Dist., 80 Cal.App.4th 1403, 1417 (2000) (MWD).
But (with the exception of Los Angeles) member agencies currently have no way to
receive imported water supplies except through Met's facilities. If a member agency such as San
Diego purchases imported water on its own, it must as a practical matter move the water through
4
Met' s facilities. The use of a water conveyance facility by someone other than the owner or
operator is referred to as "wheeling." Met provides wheeling services to its member agencies.
2. Water Networks
Met "imports water from two principal sources, the State Water Project in Northern
California, via the California Aqueduct, and the Colorado River, via the Colorado River
Aqueduct." 2 Met takes delivery of its Colorado River water at Lake Havasu. Met transports its
Colorado River water through the Colorado River Aqueduct, which Met owns and operates. Met
takes delivery of State Water Project (SWP) water at four delivery points near the northern and
eastern boundaries of Met' s service area, including two large reservoirs, Castaic Lake and T,ake
Perris. SWP water is delivered to Met by the Department of Water Resources (DWR) via the
California Aqueduct, which is part of the SWP. Met does not own or operate the SWP, nor does
Met transport SWP water from Northern California to the terminal reservoirs at Castaic Lake and
Lake Perris. 3
Once the SWP water is received by Met, Met sometimes blends that water with water
from the Colorado River, delivering blended water to its member agencies including San Diego.
Met's distribution system transports water across a large part of the State, delivers water in six
counties, and serves an area home to 19 million residents. 4 Member agencies, in tum, deliver
water to their customers.
2JTX-2* (AR2012-016429) at AR2012-016440. "*" indicates that a document is present only in the 2012
administrative record. "**" indicates that a document is not in any administrative record. All documents in the
2010 administrative record are also in the 2012 administrative record.
2 DTX-090 at AR2012-000001 (capitalization omitted).
3 PTX-237A** (Resps. to RF A Nos. 44-47).
4 DTX-109* at AR2012-016583.
5
3. Met's Contract with DWR
Met has a contract with DWR entitled "Contract Between [MetJ and [DWR] for a Water
Supply and Selected Related Agreements." 5 Pursuant to this contract, DWR makes SWP water
available to Met at delivery structures established in accordance with the contract. 6 Met is
obligated to make all payments under the contract even if it refuses to accept delivery of water
made available to it. Id. at AR2012-000048 (Art. 9).
The contract distinguishes between the cost to supply SWP water to Met, and the cost to
transport SWP water to Met. 7 The cost to transport the SWP water to Met includes a capital cost
component; a minimum operation, maintenance, power, and replacement component; and a
variable operation, maintenance, power, and replacement component. 8
The DWR contract gives Met the right to use the SWP transportation facilities to
transport water that does not come from SWP facilities. 9 The contract also gives Met the right to
use SWP facilities for "interim storage" of non-project water, for later transportation to Met and
its member agencies. 10 Met pays no facilities charge to transport or store non-project water
because Met pays for these rights by way of its transportation charge under the DWR Contract.
DTX-055 at AR2012-000153 (Art. 55(b)-(c)); DTX-087 at AR2012-0l 1307 ("contractor[s] that
participate[] in the repayment for a reach [have] already paid costs of using that reach for
conveyance of water supplies in the Transportation Charge invoice under its Statement of
5
DTX-090 at AR2012-000001 (capitalization omitted).
6
DTX-055 at AR2012-000048-49 (Arts. 9 (Obligation to Deliver Water Made Available), 10 (delivery structures)).
7 DTX-055 at AR2012-000065 (Art. 22 (a), defining Delta Water Charge), 000071-72 (Art. 23, defining
Transportation Charge).
8 DTX-055 at 000071 (Art. 23, defining Transportation Charge), 000074 (Art. 24(a), defining Capital Cost
Component), 000083 (Art. 25(a), defining Minimum Operation, Maintenance, Power, and Replacement
Component), 000086-87 (Art. 26(a), defining Variable Operation, Maintenance, Power, and Replacement
Component).
9 DTX-055 atAR2012-000153 (Art. 55(a)).
10 Id; see also DTX-087 at AR2012-011307; DTX-109* at AR2012-016588. These documents refer to Met's use of
the SWP to transport non-project water to full-service users.
6
Charges"); DTX-109* at AR2012-016588 ("This [non-project water} conveyance service is
provided because the state water contractor has paid for the capital and operations and
maintenance costs associated with the capacity in the California Aqueduct that is used").
4. Met's Rates and Charges
a. Rate-Setting
Until 2003, Met charged its member agencies a single, bundled water rate without any
separate supply or transportation components. 11 In 1998, Met began the process of designing
and implementing unbundled water rates and charges, to reflect the different services Met
provides in order to more transparently recover its costs. 12
Every year, or more recently, every two years, Met's Board votes on particular rates
adopted under that rate structure. In each budget and rate-setting cycle, Met looks at the services
it expects to provide and estimates the costs it expects to incur to provide those services. As part
of this process, Met evaluates its budget and the required rates necessary to support that budget. 13
For each rate-setting since the unbundling, Met has presented each Board member with a
final letter setting fo1th the details of the proposed rate options and a staff recommendation, as
well as a multi-step cost of service (COS) analysis demonstrating how Met assigns certain
expenses to related operation functions. 14
In Step 1 of the COS process, Met determines its revenue requirements for the given
fiscal year .15 This prospective process is necessarily inexact because Met must estimate both the
services it plans to provide and their cost. 16
DTX-045 at AR2012-006471, 006496.
11
12DTX-132* at AR2012-006462_01; DTX-034 at AR2012-005545-46.
13 DTX-090 at AR2010-011443; DTX-110* at AR2012-016594.
14 DTX-090 at AR20I0-0011443; DTX-11 0* at AR2012-016594.
15 DTX-090 at AR2010-0l 1467, 011472-011474 (Schedule 1 at AR2010-011474 sets forth the revenue
requirements by budget line item); DTX-110* at AR2012-016674, 016679-016680.
16 Id
7
In Step 2 of the COS process, Met functionalizes its costs according to the nature of the
service to which the costs correspond. 17 These services are: supply, transportation (conveyance
and aqueduct and distribution), storage, and demand management. 18
Transportation-related costs associated with bringing water to Met's service area-
mainly costs associated with the Colorado River Aqueduct and the SWP transportation
facilities-are functionalized as conveyance and aqueduct costs. Id Transportation-related
costs associated with Met's internal distribution system are functionalized as distribution costs.
Id. Costs associated with investments in developing local water resources are functionalized as
demand management costs. Id.
In Step 3 of the COS process, Met categorizes its functionalized costs based on their
causes and behavioral characteristics, including identifying which costs are incurred to meet
average demands versus peak demands, and which costs are incurred to provide "standby"
service. 19 The relevant classification categories include: fixed demand costs, fixed commodity
costs, fixed standby costs, and variable commodity costs. 20 Demand costs are «incurred to meet
peak demands" and include only the "direct capital financing costs" necessary to build additional
physical capacity in Met's system. 21 Commodity costs are generally associated with average
system demands. Fixed commodity costs include fixed operations and maintenance and capital
financing costs that are not related to accommodating peak demands or standby service.
Variable commodity costs include costs of chemicals, most
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Jul 12, 2024 |
CGC23609755
Matter on the Law & Motion calendar for Friday, July 12, 2024, Line 12. DEFENDANT ARLENE TASIM AND ALI TASIM'S Motion For Sanctions Against A A General Building Construction Inc. Pursuant To Code Of Civil Procedure Section 1281.99. Defendants and Cross-Complainants' unopposed Motion for Sanctions in the amount of $8350.00 is granted (CCP section 1281.99), payment to be made within 30 days of the filing of this order. Friday's Law & Motion Calendar will be called out of Dept. 301. Anyone intending to appear in person should report to Dept. 301. However, anyone intending to appear remotely should use the regular Zoom information for Dept. 302's Law & Motion Calendar for 9:30 a.m. 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/RCE)
Ruling
YOLANDA JONES ET AL VS. GENERAL MOTORS, LLC ET AL
Jul 10, 2024 |
CGC23609805
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 10. 2 - DEFENDANT GENERAL MOTORS, LLC's MOTION TO STRIKE 1ST Amended COMPLAINT. Off calendar. The Quezada declaration fails to show that the parties met and conferred "in person, by telephone, or by video conference" in compliance with CCP 435.5. The parties are ordered to comply with the code. The response to the complaint is now due August 7, 2024. 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
EDWARD WESTERMAN VS. FTI CONSULTING, INC. ET AL
Jul 09, 2024 |
CGC24615152
Matter on the Law & Motion Calendar for Tuesday, July 9, 2024, Line 12. PLAINTIFF EDWARD WESTERMAN's Motion To Seal. Plaintiff's unopposed motion to seal is granted. 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
CLEAR HOMES LLC, A NEW MEXICO LIMITED LIABILITY VS. BRENDAN MICHAEL WEE ET AL
Jul 11, 2024 |
CGC23607972
Real Property/Housing Court Law and Motion Calendar for July 11, 2024 line 2. DEFENDANT BRENDAN WEE, ERIKA HILTON MOTION FOR JUDGMENT ON THE PLEADINGS is Off Calendar - Per request of moving party. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
ELIANE DOS SANTOS VITAL, AN INDIVIDUAL ET AL VS. AMERICAN HONDA MOTOR CO., INC., A CALIFORNIA ET AL
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 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 05/23/2022 633 Battery Street Clerk of the Court BY: RONNIE OTERO 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 APPENDIX TO SAN DIEGO COUNTY v. WATER AUTHORITY’S TRIAL MOTION 21 IN LIMINE TO EXCLUDE METROPOLITAN WATER DISTRICT OF DOCUMENTARY EVIDENCE AND 22 SOUTHERN CALIFORNIA; ALL TESTIMONY ABOUT BENEFITS TO SAN PERSONS INTERESTED IN THE DIEGO COUNTY WATER AUTHORITY 23 VALIDITY OF THE RATES ADOPTED BY THE METROPOLITAN WATER Dept.: 306 24 DISTRICT OF SOUTHERN CALIFORNIA Judge: Hon. Anne-Christine Massullo ON APRIL 8, 2014 TO BE EFFECTIVE 25 JANUARY 1, 2015 AND JANUARY 1, Date Filed: May 30, 2014 2016; and DOES 1-10, 26 Trial Date: May 16–27, 2022 Respondents, Defendants and 27 Cross-Complainant. 28 APPENDIX TO TRIAL MOTION IN LIMINE RE BENEFITS TO SAN DIEGO Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1858768 1 San Diego County Water Authority respectfully submits this Appendix to its motion in 2 limine filed herewith. The attachments, highlighted for the Court’s convenience, are as follows: 3 Attachment A: A true and correct copy of highlighted excerpts of the rough trial 4 transcript for May 17, 2022 (Day 2). 5 Attachment B: A true and correct highlighted copy of this Court’s first Statement of 6 Decision in the prior cases, filed on April 24, 2014. 7 Attachment C: A true and correct copy of highlighted excerpts of Attachment 1 of 8 Metropolitan’s Resolution 8520, which are in Metropolitan’s administrative record for the 2014 9 action with bates numbers ending in 85592–93, and which are referred to in this Court’s April 24, 10 2014 Statement of Decision (Attachment B) at page 38 (using the page numbers for the 2012 11 record, 002455–56). 12 Attachment D: A true and correct copy of highlighted excerpts of the rough trial 13 transcript for May 19, 2022 (Day 4). 14 15 Respectfully submitted, 16 Dated: May 23, 2022 KEKER, VAN NEST & PETERS LLP 17 18 By: /s/ Dan Jackson DAN JACKSON 19 Attorneys for SAN DIEGO COUNTY WATER AUTHORITY 20 21 22 23 24 25 26 27 28 1 APPENDIX TO TRIAL MOTION IN LIMINE RE BENEFITS TO SAN DIEGO Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1858768 ATTACHMENT A Page 1 * * * * * A realtime rough draft is available to all counsel. Receipt of such is only available with a certified copy order. There is an additional charge for the rough draft. The realtime draft is unedited and uncertified and may contain untranslated stenographic symbols, reporter notes, misspelled proper names, and/or nonsensical word combinations. All such entries will be corrected on the final certified transcript. Due to the need for the reporter to correct entries prior to certification, it is agreed this realtime draft will be used solely for the purpose of augmenting counsel's notes and not for use, including citation, in any court proceeding or distribution to any other party(s). CCP Section 2025(r)(2). When prepared as a rough draft transcript, the transcript of the proceedings may not be certified and may not be used, cited, or transcribed as the certified transcript of the proceedings. The rough draft transcript may not be cited or used in any way or at any time to rebut or contradict the certified transcript of said proceedings as provided by the court reporter. Page 2 1 May 17, 2022. 2 Trial volume two. 3 8:36 a.m.. 4 5 THE COURT: All right. Good morning. Thank 6 you. We're back on the record in the San Diego Water 7 vs. Metropolitan Water District matter. Mr. Cushman is 8 still on the stand. Cross-examination may continue, 9 Mr. Lee. 10 MR. LEE: I think we have one housekeeping 11 matter with Mr. Braunig. 12 THE COURT: Yeah. 13 MR. BRAUNIG: The housekeeping matter is our 14 damages expert has COVID. 15 THE COURT: Okay. 16 MR. BRAUNIG: So the COVID chronicles continue. 17 None of us have had contact with him since last Tuesday. 18 The person who had contact him last Tuesday is 19 Mr. Goldberg, who tested negative, so we don't think 20 there's an issue with exposure to anybody who's going to 21 be in court. The issue, obviously, is that our witness 22 is sick and he's symptomatic. So -- 23 THE COURT: I'm sorry to hear that. 24 MR. BRAUNIG: So the -- so what we're talking 25 about with Metropolitan's counsel is figuring out -- I Page 44 1 part of that program under its LRP program, correct? 2 A. I don't know the status of that, no. 3 Q. You -- 4 A. I don't know. 5 Q. You've said during your direct testimony that 6 you keep up on water issues in San Diego. So you didn't 7 keep up on that one? 8 MR. BRAUNIG: Objection, argumentative. 9 THE COURT: Sustained. 10 By MR. LEE: 11 Q. You don't -- you didn't do any research on that 12 issue? 13 A. No. 14 Q. I don't have any further questions at this 15 time. Thank you Mr. Cushman? 16 THE COURT: Very well. May the witness be 17 excused? 18 MR. BRAUNIG: Yes, thank you. 19 THE COURT: Very well, Mr. Cushman, thank you 20 so much for your testimony. 21 9:37 a.m. witness was excused. 22 THE COURT: Sir, next witness for San Diego. 23 MR. JACKSON: The Water Authority calls Robert 24 Campbell. 25 THE COURT: Thank you. Page 45 1 MR. LEE: Your Honor, can I just have a minute 2 to move binders, folders? 3 THE COURT: Yes, you may. I think by the time 4 the witness gets to the stand and wipes down the stand, 5 if he wishes to, you'll have your time. Off the 6 record. 7 9:39 a.m. New witness. 8 Witness sworn 9 THE WITNESS: Yes, I do. 10 COURT CLERK: Thank you. Please be seated. If 11 you'll take a moment and adjust the microphone so it's 12 positioned a little better for you. Then you would 13 state and spell your first and last name, please. 14 THE WITNESS: Yes. My name is Robert 15 R-O-BE-R-T, Campbell, C a.m. P-B-L-L. 16 MR. JACKSON: I think you forgot the E. 17 THE WITNESS: C a.m. BE-L-L. I kind of run 18 them together. 19 MR. JACKSON: Your Honor, I have binders for 20 the court and for the witness, if I may step forward. 21 THE COURT: Thank you. 22 ---oOo--- 23 DIRECT EXAMINATION 24 BY MR. JACKSON: 25 Q. Good morning, Mr. Campbell. Page 189 1 correct? 2 A. Yes. 3 Q. It could deliver that water from storage, 4 correct? 5 A. Correct. 6 Q. And is it based on your experience generally 7 true that the State Water Project water has a higher 8 quality level than the Colorado River water? 9 A. That's not generally true. I don't agree with 10 your supposition on that. 11 Q. Okay. Which water, Colorado River water or 12 State Water Project water, has a higher salinity 13 content, if you know, in general? 14 A. The Colorado River has a higher salinity count. 15 Q. And -- 16 A. And -- go ahead. 17 Q. Okay. Thank you. And as a general rule under 18 the 1998 exchange agreement, did San Diego want to have 19 a blend of Colorado River water and State Water Project 20 water delivered as exchange water, if you know? 21 A. It wasn't a "must have" that we have a blend. 22 It might not even be operationally achievable by 23 Metropolitan. 24 Q. Okay. 25 A. I think Metropolitan made that clear. Page 190 1 Q. All right. San Diego under the 1998 exchange 2 agreement preferred to have a blend of state -- of S-W-P 3 water and Colorado River aqueduct water correct? 4 MR. JACKSON: Objection, asked and answered. 5 THE COURT: Overruled. You may answer, sir. 6 THE WITNESS: Your premise was that under the 7 1998 agreement that San Diego preferred to have a blend. 8 That is not correct. 9 BY MR. LEE: 10 Q. Okay? 11 A. We never made that assertion that we wanted to 12 have a blend under the 1998 agreement. Now, San Diego 13 may have wanted that in prior times, but not in the 1998 14 agreement. 15 Q. Well, in the negotiations that led up to the 16 1998 agreement, did San Diego tell Metropolitan that it, 17 San Diego, would prefer to have a blend of exchange 18 water rather than just Colorado River water? 19 A. You know, it may not have been operationally 20 achievable. I don't think it was our role to tell them 21 how their -- what they're going to provide. It was 22 simply -- it had to be a like quantity and quality, and 23 I'd like to point out that while Colorado River water 24 has a higher salinity -- yes a higher salinity, State 25 Water Project has its own water quality problems. It Page 191 1 has a higher bromide content and when those mix down 2 into the treatment plants, that bromide content, it -- 3 if it mixes with chlorine, it produces trihalomethanes, 4 and trihalomethanes are a known carcinogen. So 5 Metropolitan was going to have to undertake ozone 6 treatment at all of its treatment plants to alleviate 7 that concern in its water quality from the State Water 8 Project. 9 Q. Move to strike the answer, nonresponsive. 10 MR. JACKSON: It is responsive, your Honor. 11 THE COURT: The question was a yes-or-no 12 question, so I am going to strike the answer. Do you 13 wish to have it read back to the witness? 14 MR. LEE: Yes. If we could just have the 15 question read back, and sir, if you could just answer my 16 question and San Diego lawyers can follow up. 17 THE COURT: And if you don't know, just say you 18 don't know. 19 MR. LEE: Right. 20 (Record read.) 21 THE WITNESS: We didn't specifically say that. 22 THE COURT: Very well. 23 BY MR. LEE: 24 Q. Okay. I'm going to try to get one last 25 document in, your Honor, before 2:30. Take a look at Page 193 1 Question, given how long we've been with these 2 witnesses, does it really realistic that we're going to 3 do this case in the time that's been allotted any want 4 you to think about that and not answer me precipitously 5 please. You need to plan. I need to plan. You need to 6 plan. So you need to be realistic. I'm going through a 7 lot of documents I know they're foundational you need to 8 get them in, but I want you to be able get your case in, 9 but if the time estimate at any point along here -- I 10 need to know. So I want you to meet and confer amongst 11 yourselves, and I just don't see that it's going to get 12 done. I'm going to try to make the 26th a half day. So 13 we'll be in session in the morning, and I'll have my 14 other obligation come in in the afternoon. So that will 15 be the only other limitation that I see. All right? 16 Thank you so much. 17 2:30 p.m. 18 19 20 21 22 23 24 25 ATTACHMENT B 55350253 Apr 24 2014 FIL E 04:14PM San Francisco County Superio APR 2 4 2014 ~LE~~ C?UR T BY. ----"-~-D eputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO SAN DIEGO COUNTY WATER Case No. CPF-10-510830 AUTHORITY, Case No. CPF-12-512466 Plaintiff/Petitioner, vs. STATEMENT OF DECISION ON RATE METROPOLITAN WATER DIST. OF SETTING CHALLENGES SOUTHERN CALIFORNIA, et al. Defendants/Respondents. San Diego County Water Authority (San Diego) challenges the legality of four rates set by Metropolitan Water District of Southern California (Met). San Diego alleges three defects. First, San Diego argues that Met improperly allocates the bulk of Met's costs under its contract with the California Department of Water Resources' State Water Project to the System Access Rate and the System Power Rate. Second, San Diego contends that Met illegally treats all of its costs for conservation and local water supply development programs as transportation costs by recovering them through the Water Stewardship Rate, which Met charges as a transportation rate. The asserted result of these misallocations is that parties who use Met' s wheeling services pay an inflated rate for that service. Third, San Diego asserts that, while Met incurs significant costs to accommodate the practice by some member agencies of"rolling on" to Met's system and buying more water in dry years, and "rolling off' ofMet's system and substantially reducing their purchases from Met in average years (dry-year peaking), Met's rates fail to assign those costs to the member agencies that cause the dry-year peaking costs to be incurred or that benefit from the availability of dry- year peaking supplies. I find for San Diego on the first two issues and for Met on the third. Procedural History San Diego filed suit challenging Met 's 2011 and 2012 rates on June 11, 2010 (the 2010 case). 1 The operative Third Amended Complaint in the 2010 case includes six causes of action: the Rate Challenges (Causes of Action# 1-3); breach of contract (Cause of Action #4); declaratory relief as to RSI (Cause of Action# 5); and declaratory relief as to preferential rights (Cause of Action #6). Within the Rate Challenges, San Diego asserts that Met's 2011 and 2012 rates violate numerous constitutional and statutory provisions, namely: Article XIII A of the California Constitution (Proposition 13) and its implementing statute, Government Code§ 50076; the Wheeling Statute, Water Code§ 1810 et seq.; Government Code§ 54999.7(a); 1 San Diego and Met have driven this litigation, but they are not the only parties. Imperial Irrigation District answered the 2010 Complaint, the Third Amended Complaint in the 2010 action, and the 2012 Complaint alleging that some or all ofMet's actions violated Water Code§§ 1810-1814. The Utility Consumers' Action Network also answered the 2010 complaint seeking invalidation of the rates, but not the operative Third Amended Complaint in that action or the 2012 complaint. The City of Glendale, Municipal Water District of Orange County, City of Torrance, Las Virgenes Municipal Water District, West Basin Municipal Water District, Foothill Municipal Water District, and City of Los Angeles all answered the 2010 Complaint, the operative Third Amended Complaint in that action, and the 2012 Complaint siding with Met. Three Valleys Municipal Water District answered the 2010 and 2012 Complaints siding with Met, but not the Third Amended Complaint in the 2010 action. Western Municipal Water District and Eastern Municipal Water District answered the 2012 Complaint, siding with Met. 2 Government Code§ 66013; section 134 of the Metropolitan Water District Act; and California common law. On June 8, 2012, after Met approved rates for calendar years 2013 and 2014 that relied on many of the same cost allocations and ratemaking determinations, San Diego filed a second lawsuit (the 2012 case). The 2012 case includes four causes of action: rate challenges to the 2013 and 2014 rates (Causes of Action# 1-3) and another claim for breach of contract (Cause of Action# 4). Within the 2012 rate challenges, San Diego alleges that Met's 2013 and 2014 rates violate the same common law, constitutional and statutory provisions as in the 2010 case, as well as Article XIII C § I of the California Constitution (Proposition 26). On September 20, 2013, the parties filed cross-motions for summary adjudication. San Diego moved for summary adjudication on the RSI cause of action. Met moved for summary adjudication on the RSI cause of action, the preferential rights cause of action, and both breach of contract causes of action. By order dated December 4, 2013, I denied San Diego's motion for summary adjudication on RSI, granted Met's motion for summary adjudication on RSI, and denied Met' s other motions for summary adjudication. I bifurcated the breach of contract causes of action and set them for trial at a date following resolution of the rate challenges. The parties agreed to postpone the preferential rights claim as well; it will be heard at the same time as the breach of contract claims. The rate challenges were set for trial on December 17, 2013. The trial for the rate challenges in the 2010 case and the 2012 case commenced on December 17, 2013, and was completed, except for closing arguments, on December 23. The parties filed post-trial briefs on January 17, 2014; closing arguments were heard on January 23, 2014. 3 I issued a tentative determination and proposed statement of decision February 25, 2014. I provided the parties additional time for objections, which were filed March 27. This statement of decision follows. Factual Background 1. The Parties Met was established in 1928 by the Metropolitan Water District Act. Stats. 1969, ch. 209 as amended; Water Code Append.§§ 109-134. Met acts as a supplemental wholesale water supplier to 26 cities and water districts throughout Southern California (Met's member agencies). San Diego is one ofMet's member agencies, and has been since 1946. Met's member agencies govern Met through their representatives on Met' s Board of Directors. Water Code Append. §§ 109-50, 109-51, 109-55. Each member agency has proportional representation on the Board of Directors, and is entitled to at least one seat on the Board, plus an additional seat for every full 3% of the total assessed value of the property within the member agency's service area that is taxable for district purposes. Id. at§§ 51-52. Member agencies are not obligated to buy water from Met. If member agencies have access to local sources of water, they may freely opt out fully or partially from Met's services. JTX-2 (AR2012-016429) at AR2012-016440; Metropolitan Wat. Dist. ofS. Cal. v.Imperial Irrigation Dist., 80 Cal.App.4th 1403, 1417 (2000) (MWD). But (with the exception of Los Angeles) member agencies currently have no way to receive imported water supplies except through Met's facilities. If a member agency such as San Diego purchases imported water on its own, it must as a practical matter move the water through 4 Met' s facilities. The use of a water conveyance facility by someone other than the owner or operator is referred to as "wheeling." Met provides wheeling services to its member agencies. 2. Water Networks Met "imports water from two principal sources, the State Water Project in Northern California, via the California Aqueduct, and the Colorado River, via the Colorado River Aqueduct." 2 Met takes delivery of its Colorado River water at Lake Havasu. Met transports its Colorado River water through the Colorado River Aqueduct, which Met owns and operates. Met takes delivery of State Water Project (SWP) water at four delivery points near the northern and eastern boundaries of Met' s service area, including two large reservoirs, Castaic Lake and T,ake Perris. SWP water is delivered to Met by the Department of Water Resources (DWR) via the California Aqueduct, which is part of the SWP. Met does not own or operate the SWP, nor does Met transport SWP water from Northern California to the terminal reservoirs at Castaic Lake and Lake Perris. 3 Once the SWP water is received by Met, Met sometimes blends that water with water from the Colorado River, delivering blended water to its member agencies including San Diego. Met's distribution system transports water across a large part of the State, delivers water in six counties, and serves an area home to 19 million residents. 4 Member agencies, in tum, deliver water to their customers. 2JTX-2* (AR2012-016429) at AR2012-016440. "*" indicates that a document is present only in the 2012 administrative record. "**" indicates that a document is not in any administrative record. All documents in the 2010 administrative record are also in the 2012 administrative record. 2 DTX-090 at AR2012-000001 (capitalization omitted). 3 PTX-237A** (Resps. to RF A Nos. 44-47). 4 DTX-109* at AR2012-016583. 5 3. Met's Contract with DWR Met has a contract with DWR entitled "Contract Between [MetJ and [DWR] for a Water Supply and Selected Related Agreements." 5 Pursuant to this contract, DWR makes SWP water available to Met at delivery structures established in accordance with the contract. 6 Met is obligated to make all payments under the contract even if it refuses to accept delivery of water made available to it. Id. at AR2012-000048 (Art. 9). The contract distinguishes between the cost to supply SWP water to Met, and the cost to transport SWP water to Met. 7 The cost to transport the SWP water to Met includes a capital cost component; a minimum operation, maintenance, power, and replacement component; and a variable operation, maintenance, power, and replacement component. 8 The DWR contract gives Met the right to use the SWP transportation facilities to transport water that does not come from SWP facilities. 9 The contract also gives Met the right to use SWP facilities for "interim storage" of non-project water, for later transportation to Met and its member agencies. 10 Met pays no facilities charge to transport or store non-project water because Met pays for these rights by way of its transportation charge under the DWR Contract. DTX-055 at AR2012-000153 (Art. 55(b)-(c)); DTX-087 at AR2012-0l 1307 ("contractor[s] that participate[] in the repayment for a reach [have] already paid costs of using that reach for conveyance of water supplies in the Transportation Charge invoice under its Statement of 5 DTX-090 at AR2012-000001 (capitalization omitted). 6 DTX-055 at AR2012-000048-49 (Arts. 9 (Obligation to Deliver Water Made Available), 10 (delivery structures)). 7 DTX-055 at AR2012-000065 (Art. 22 (a), defining Delta Water Charge), 000071-72 (Art. 23, defining Transportation Charge). 8 DTX-055 at 000071 (Art. 23, defining Transportation Charge), 000074 (Art. 24(a), defining Capital Cost Component), 000083 (Art. 25(a), defining Minimum Operation, Maintenance, Power, and Replacement Component), 000086-87 (Art. 26(a), defining Variable Operation, Maintenance, Power, and Replacement Component). 9 DTX-055 atAR2012-000153 (Art. 55(a)). 10 Id; see also DTX-087 at AR2012-011307; DTX-109* at AR2012-016588. These documents refer to Met's use of the SWP to transport non-project water to full-service users. 6 Charges"); DTX-109* at AR2012-016588 ("This [non-project water} conveyance service is provided because the state water contractor has paid for the capital and operations and maintenance costs associated with the capacity in the California Aqueduct that is used"). 4. Met's Rates and Charges a. Rate-Setting Until 2003, Met charged its member agencies a single, bundled water rate without any separate supply or transportation components. 11 In 1998, Met began the process of designing and implementing unbundled water rates and charges, to reflect the different services Met provides in order to more transparently recover its costs. 12 Every year, or more recently, every two years, Met's Board votes on particular rates adopted under that rate structure. In each budget and rate-setting cycle, Met looks at the services it expects to provide and estimates the costs it expects to incur to provide those services. As part of this process, Met evaluates its budget and the required rates necessary to support that budget. 13 For each rate-setting since the unbundling, Met has presented each Board member with a final letter setting fo1th the details of the proposed rate options and a staff recommendation, as well as a multi-step cost of service (COS) analysis demonstrating how Met assigns certain expenses to related operation functions. 14 In Step 1 of the COS process, Met determines its revenue requirements for the given fiscal year .15 This prospective process is necessarily inexact because Met must estimate both the services it plans to provide and their cost. 16 DTX-045 at AR2012-006471, 006496. 11 12DTX-132* at AR2012-006462_01; DTX-034 at AR2012-005545-46. 13 DTX-090 at AR2010-011443; DTX-110* at AR2012-016594. 14 DTX-090 at AR20I0-0011443; DTX-11 0* at AR2012-016594. 15 DTX-090 at AR2010-0l 1467, 011472-011474 (Schedule 1 at AR2010-011474 sets forth the revenue requirements by budget line item); DTX-110* at AR2012-016674, 016679-016680. 16 Id 7 In Step 2 of the COS process, Met functionalizes its costs according to the nature of the service to which the costs correspond. 17 These services are: supply, transportation (conveyance and aqueduct and distribution), storage, and demand management. 18 Transportation-related costs associated with bringing water to Met's service area- mainly costs associated with the Colorado River Aqueduct and the SWP transportation facilities-are functionalized as conveyance and aqueduct costs. Id Transportation-related costs associated with Met's internal distribution system are functionalized as distribution costs. Id. Costs associated with investments in developing local water resources are functionalized as demand management costs. Id. In Step 3 of the COS process, Met categorizes its functionalized costs based on their causes and behavioral characteristics, including identifying which costs are incurred to meet average demands versus peak demands, and which costs are incurred to provide "standby" service. 19 The relevant classification categories include: fixed demand costs, fixed commodity costs, fixed standby costs, and variable commodity costs. 20 Demand costs are «incurred to meet peak demands" and include only the "direct capital financing costs" necessary to build additional physical capacity in Met's system. 21 Commodity costs are generally associated with average system demands. Fixed commodity costs include fixed operations and maintenance and capital financing costs that are not related to accommodating peak demands or standby service. Variable commodity costs include costs of chemicals, most