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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 SAN DIEGO COUNTY WATER
v. AUTHORITY’S TRIAL MOTION IN
21 LIMINE TO EXCLUDE DOCUMENTARY
METROPOLITAN WATER DISTRICT OF EVIDENCE AND TESTIMONY ABOUT
22 SOUTHERN CALIFORNIA; ALL BENEFITS TO SAN DIEGO COUNTY
PERSONS INTERESTED IN THE 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
TRIAL MOTION IN LIMINE RE BENEFITS TO SAN DIEGO
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1858628
1 San Diego County Water Authority (San Diego 1) files this trial motion in limine in light
2 of events and rulings in the trial thus far, in order to give as much notice as practicable to both
3 Metropolitan and the Court regarding an evidentiary issue that has arisen, as discussed below.
4 In cross-examining San Diego’s witnesses, Metropolitan’s attorneys have sought to elicit
5 testimony regarding benefits to San Diego. But this trial is about benefits to Metropolitan and the
6 credit Metropolitan was required to give San Diego as a result. (Wat. Code, § 1811(c).)
7 Metropolitan has already charged San Diego for benefits to San Diego. Those charges were the
8 subject of the first trial before the Honorable Judge Curtis E.A. Karnow and the appeals that
9 followed. Those issues have been resolved. Such evidence is irrelevant to this trial and thus
10 should be excluded under Evidence Code section 350, and also under section 352 because any
11 probative value of such evidence is substantially outweighed by the probability that its admission
12 will necessitate undue consumption of time and create substantial danger of confusing the issues.
13 A specific example may help illustrate the point. In cross examining Robert Campbell,
14 Metropolitan’s counsel sought to elicit testimony about a purported benefit to San Diego from the
15 blend of water Metropolitan delivers. (See, e.g., Appx. (filed herewith) Attach. A at pp. 189:6–
16 191:21 (Campbell).) But that issue was litigated at great length in the prior trial. And the
17 overarching issue of Metropolitan’s charges, under the first part of section 1811(c), for benefits to
18 San Diego of what the Court of Appeal found to be an “integrated system,” was the subject of,
19 and decided by, SDCWA v. Metropolitan (2017) 12 Cal.App.5th 1124, 1138–1152 (SDCWA I).
20 In discussing blending, Judge Karnow noted Metropolitan’s position in Resolution 8520:
21 “System integration is demonstrated by the blending of water and the ability to compensate for
22 outages by deliveries from other sources.” (Appx. Attach. B (SOD I) at p. 38, citing 2012
23 Administrative Record (AR) at pp. 2455–56, reproduced in 2014 AR at pp. 85592–93 (Attach. C)
24 [Metropolitan contending that “fair compensation” looks to “the whole system,” and that the
25 “ability to take water from two different sources, blend and deliver them requires an integrated
26
1
27 As explained in its pretrial brief (p. 4, fn. 4), San Diego County Water Authority refers to itself
as the “Water Authority” because it is distinct from the City and County of San Diego. But this
28 Court has been using “San Diego” (in its summary adjudication orders, for example) and there is
no need in this case to distinguish the City and County, so we adopt the Court’s usage.
1
TRIAL MOTION IN LIMINE RE BENEFITS/COSTS TO SAN DIEGO
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1858628
1 system: without the integration, blending could not occur”].) Metropolitan argued in the prior
2 trial that “it is reasonable to allocate SWP transportation costs to its transportation rates” because
3 Metropolitan “has an integrated, regional system that delivers a blend of water which includes
4 SWP water.” (Id. (SOD I) at p. 45.) Judge Karnow rejected Metropolitan’s arguments: “Nor
5 does it matter whether Met delivers a blend of water to wheelers. The blend might be useful”—
6 e.g., because it “provides lower salinity water”—“but, as to wheelers, the benefit is gratuitous,
7 and not required by wheeling agreements.” (Id. at p. 53 & fn. 81, citation omitted.)
8 As Judge Karnow found, the Exchange Agreement does not require blending for San
9 Diego’s benefit; it only requires Metropolitan to deliver water to San Diego “of like quality” to
10 the conserved water San Diego delivers to Metropolitan. (PTX65, ¶ 1.1(m).) To the extent
11 Metropolitan provides water of any higher quality, it does so in “its sole discretion” based on its
12 own “right” and for its own benefit. (Id., ¶ 3.6.) “In such event, Metropolitan’s election shall not
13 operate as or be construed to be a commitment to deliver Exchange Water of better quality in the
14 future, and in no event shall SDCWA be deemed to have any right to receive Exchange Water of
15 better quality than the Conserved Water and/or Canal Lining Water.” (Ibid.)
16 The Court of Appeal upheld Judge Karnow’s interpretation of the Exchange Agreement,
17 but did not address the issue of blending. In any event, Metropolitan successfully challenged
18 Judge Karnow’s separate determination that Metropolitan could not recover the SWP
19 transportation costs at issue in that case—i.e., charges for its “integrated system.” (SDCWA I,
20 supra, 12 Cal.App.5th at pp. 1145–1149.) As a result, San Diego is now required to pay those
21 SWP costs—and always has paid them (it formerly did so under protest). Because San Diego
22 already pays for whatever “blend” Metropolitan chooses to provide, “blending” is now irrelevant.
23 More broadly, benefits to San Diego are legally irrelevant. This trial is not about benefits
24 to San Diego, which is already being charged for such benefits under the first part of the “fair
25 compensation” definition in section 1811(c). Disputes over those charges were definitively
26 resolved by SDCWA I. (See 12 Cal.App.5th at pp. 1144–1151 [resolving the parties’ disputes in
27 those cases under the first part of section 1811(c)].) This trial is about credits to San Diego for
28 “offsetting benefits” to Metropolitan: the second part of section 1811(c).
2
TRIAL MOTION IN LIMINE RE BENEFITS/COSTS TO SAN DIEGO
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1858628
1 Metropolitan may argue that benefits to San Diego are relevant to Metropolitan’s thirtieth
2 affirmative defense of “Benefit Received – Offset.” But that defense is about an offset to San
3 Diego’s damages: a reduction in the credit for offsetting benefits to Metropolitan. Evidence
4 might be relevant to that defense if it proved that some reduction in the credit for offsetting
5 benefits was required to account for some reduction in offsetting benefits to Metropolitan. But
6 benefits to San Diego are irrelevant to Metropolitan’s defense. To hold otherwise would allow
7 Metropolitan to recover costs through the “offsetting benefits” prong of “fair compensation” that
8 were either (a) disallowed by the Court of Appeal in SDCWA I; or (b) allowed by SDCWA I and
9 already paid by San Diego. Either way, benefits to San Diego—i.e., benefits that San Diego
10 either pays for already, or is exempted from paying for under SDCWA I—are irrelevant to any
11 purported “offset” to the “offsetting benefits” to Metropolitan under section 1811(c).
12 Finally, fairness dictates that Metropolitan not be allowed to put on evidence regarding
13 benefits to San Diego that were already resolved in the prior cases. This Court did not allow San
14 Diego’s attorneys to ask Maureen Stapleton about Metropolitan’s “Rate Structure Integrity”
15 provision, which the Court of Appeal found unconstitutional in SDCWA I. (12 Cal.App.5th at pp.
16 1156–1164; see also id. at 1166–1167 [Siggins, J., concurring].) As this Court stated: “If it’s
17 been resolved, I don’t want to hear.” (Appx. Attach. D at p. 125:18-19.) Benefits to San Diego—
18 and Metropolitan’s system-wide charges for those benefits—have already been resolved. They
19 are now irrelevant to this trial. The Court should exclude such evidence, just as the Court
20 excluded evidence from San Diego about issues that have already been resolved.
21 Accordingly, the Court should exclude documentary evidence and testimony regarding
22 benefits to San Diego as irrelevant. (Evid. Code, § 350.) Even if such evidence were relevant,
23 which it is not, its probative value is substantially outweighed by the undue consumption of time
24 and confusion of the issues. (Id., § 352.) The Court, therefore, should exclude such evidence.
25 Respectfully submitted,
Dated: May 23, 2022 KEKER, VAN NEST & PETERS LLP
26
27 By: /s/ Dan Jackson
DAN JACKSON
28 Attorneys for SAN DIEGO COUNTY
WATER AUTHORITY
3
TRIAL MOTION IN LIMINE RE BENEFITS/COSTS TO SAN DIEGO
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1858628
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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 SAN DIEGO COUNTY WATER v. AUTHORITY’S TRIAL MOTION IN 21 LIMINE TO EXCLUDE DOCUMENTARY METROPOLITAN WATER DISTRICT OF EVIDENCE AND TESTIMONY ABOUT 22 SOUTHERN CALIFORNIA; ALL BENEFITS TO SAN DIEGO COUNTY PERSONS INTERESTED IN THE 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 TRIAL MOTION IN LIMINE RE BENEFITS TO SAN DIEGO Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1858628 1 San Diego County Water Authority (San Diego 1) files this trial motion in limine in light 2 of events and rulings in the trial thus far, in order to give as much notice as practicable to both 3 Metropolitan and the Court regarding an evidentiary issue that has arisen, as discussed below. 4 In cross-examining San Diego’s witnesses, Metropolitan’s attorneys have sought to elicit 5 testimony regarding benefits to San Diego. But this trial is about benefits to Metropolitan and the 6 credit Metropolitan was required to give San Diego as a result. (Wat. Code, § 1811(c).) 7 Metropolitan has already charged San Diego for benefits to San Diego. Those charges were the 8 subject of the first trial before the Honorable Judge Curtis E.A. Karnow and the appeals that 9 followed. Those issues have been resolved. Such evidence is irrelevant to this trial and thus 10 should be excluded under Evidence Code section 350, and also under section 352 because any 11 probative value of such evidence is substantially outweighed by the probability that its admission 12 will necessitate undue consumption of time and create substantial danger of confusing the issues. 13 A specific example may help illustrate the point. In cross examining Robert Campbell, 14 Metropolitan’s counsel sought to elicit testimony about a purported benefit to San Diego from the 15 blend of water Metropolitan delivers. (See, e.g., Appx. (filed herewith) Attach. A at pp. 189:6– 16 191:21 (Campbell).) But that issue was litigated at great length in the prior trial. And the 17 overarching issue of Metropolitan’s charges, under the first part of section 1811(c), for benefits to 18 San Diego of what the Court of Appeal found to be an “integrated system,” was the subject of, 19 and decided by, SDCWA v. Metropolitan (2017) 12 Cal.App.5th 1124, 1138–1152 (SDCWA I). 20 In discussing blending, Judge Karnow noted Metropolitan’s position in Resolution 8520: 21 “System integration is demonstrated by the blending of water and the ability to compensate for 22 outages by deliveries from other sources.” (Appx. Attach. B (SOD I) at p. 38, citing 2012 23 Administrative Record (AR) at pp. 2455–56, reproduced in 2014 AR at pp. 85592–93 (Attach. C) 24 [Metropolitan contending that “fair compensation” looks to “the whole system,” and that the 25 “ability to take water from two different sources, blend and deliver them requires an integrated 26 1 27 As explained in its pretrial brief (p. 4, fn. 4), San Diego County Water Authority refers to itself as the “Water Authority” because it is distinct from the City and County of San Diego. But this 28 Court has been using “San Diego” (in its summary adjudication orders, for example) and there is no need in this case to distinguish the City and County, so we adopt the Court’s usage. 1 TRIAL MOTION IN LIMINE RE BENEFITS/COSTS TO SAN DIEGO Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1858628 1 system: without the integration, blending could not occur”].) Metropolitan argued in the prior 2 trial that “it is reasonable to allocate SWP transportation costs to its transportation rates” because 3 Metropolitan “has an integrated, regional system that delivers a blend of water which includes 4 SWP water.” (Id. (SOD I) at p. 45.) Judge Karnow rejected Metropolitan’s arguments: “Nor 5 does it matter whether Met delivers a blend of water to wheelers. The blend might be useful”— 6 e.g., because it “provides lower salinity water”—“but, as to wheelers, the benefit is gratuitous, 7 and not required by wheeling agreements.” (Id. at p. 53 & fn. 81, citation omitted.) 8 As Judge Karnow found, the Exchange Agreement does not require blending for San 9 Diego’s benefit; it only requires Metropolitan to deliver water to San Diego “of like quality” to 10 the conserved water San Diego delivers to Metropolitan. (PTX65, ¶ 1.1(m).) To the extent 11 Metropolitan provides water of any higher quality, it does so in “its sole discretion” based on its 12 own “right” and for its own benefit. (Id., ¶ 3.6.) “In such event, Metropolitan’s election shall not 13 operate as or be construed to be a commitment to deliver Exchange Water of better quality in the 14 future, and in no event shall SDCWA be deemed to have any right to receive Exchange Water of 15 better quality than the Conserved Water and/or Canal Lining Water.” (Ibid.) 16 The Court of Appeal upheld Judge Karnow’s interpretation of the Exchange Agreement, 17 but did not address the issue of blending. In any event, Metropolitan successfully challenged 18 Judge Karnow’s separate determination that Metropolitan could not recover the SWP 19 transportation costs at issue in that case—i.e., charges for its “integrated system.” (SDCWA I, 20 supra, 12 Cal.App.5th at pp. 1145–1149.) As a result, San Diego is now required to pay those 21 SWP costs—and always has paid them (it formerly did so under protest). Because San Diego 22 already pays for whatever “blend” Metropolitan chooses to provide, “blending” is now irrelevant. 23 More broadly, benefits to San Diego are legally irrelevant. This trial is not about benefits 24 to San Diego, which is already being charged for such benefits under the first part of the “fair 25 compensation” definition in section 1811(c). Disputes over those charges were definitively 26 resolved by SDCWA I. (See 12 Cal.App.5th at pp. 1144–1151 [resolving the parties’ disputes in 27 those cases under the first part of section 1811(c)].) This trial is about credits to San Diego for 28 “offsetting benefits” to Metropolitan: the second part of section 1811(c). 2 TRIAL MOTION IN LIMINE RE BENEFITS/COSTS TO SAN DIEGO Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1858628 1 Metropolitan may argue that benefits to San Diego are relevant to Metropolitan’s thirtieth 2 affirmative defense of “Benefit Received – Offset.” But that defense is about an offset to San 3 Diego’s damages: a reduction in the credit for offsetting benefits to Metropolitan. Evidence 4 might be relevant to that defense if it proved that some reduction in the credit for offsetting 5 benefits was required to account for some reduction in offsetting benefits to Metropolitan. But 6 benefits to San Diego are irrelevant to Metropolitan’s defense. To hold otherwise would allow 7 Metropolitan to recover costs through the “offsetting benefits” prong of “fair compensation” that 8 were either (a) disallowed by the Court of Appeal in SDCWA I; or (b) allowed by SDCWA I and 9 already paid by San Diego. Either way, benefits to San Diego—i.e., benefits that San Diego 10 either pays for already, or is exempted from paying for under SDCWA I—are irrelevant to any 11 purported “offset” to the “offsetting benefits” to Metropolitan under section 1811(c). 12 Finally, fairness dictates that Metropolitan not be allowed to put on evidence regarding 13 benefits to San Diego that were already resolved in the prior cases. This Court did not allow San 14 Diego’s attorneys to ask Maureen Stapleton about Metropolitan’s “Rate Structure Integrity” 15 provision, which the Court of Appeal found unconstitutional in SDCWA I. (12 Cal.App.5th at pp. 16 1156–1164; see also id. at 1166–1167 [Siggins, J., concurring].) As this Court stated: “If it’s 17 been resolved, I don’t want to hear.” (Appx. Attach. D at p. 125:18-19.) Benefits to San Diego— 18 and Metropolitan’s system-wide charges for those benefits—have already been resolved. They 19 are now irrelevant to this trial. The Court should exclude such evidence, just as the Court 20 excluded evidence from San Diego about issues that have already been resolved. 21 Accordingly, the Court should exclude documentary evidence and testimony regarding 22 benefits to San Diego as irrelevant. (Evid. Code, § 350.) Even if such evidence were relevant, 23 which it is not, its probative value is substantially outweighed by the undue consumption of time 24 and confusion of the issues. (Id., § 352.) The Court, therefore, should exclude such evidence. 25 Respectfully submitted, Dated: May 23, 2022 KEKER, VAN NEST & PETERS LLP 26 27 By: /s/ Dan Jackson DAN JACKSON 28 Attorneys for SAN DIEGO COUNTY WATER AUTHORITY 3 TRIAL MOTION IN LIMINE RE BENEFITS/COSTS TO SAN DIEGO Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1858628