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1 KEKER, VAN NEST & PETERS LLP EXEMPT FROM FILING FEES
JOHN W. KEKER - # 49092 [GOVERNMENT CODE § 6103]
2 jkeker@keker.com
DAN JACKSON - # 216091 ELECTRONICALLY
3 djackson@keker.com
WARREN A. BRAUNIG - # 243884 F I L E D
Superior Court of California,
4 wbraunig@keker.com County of San Francisco
NICHOLAS S. GOLDBERG - # 273614
5 ngoldberg@keker.com 04/23/2021
633 Battery Street Clerk of the Court
BY: EDWARD SANTOS
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
13 SAN DIEGO COUNTY WATER AUTHORITY
14
15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 IN AND FOR THE COUNTY OF SAN FRANCISCO
17 SAN DIEGO COUNTY WATER Case No. CPF-14-514004
AUTHORITY,
18 SAN DIEGO COUNTY WATER
Petitioner and Plaintiff, AUTHORITY’S ANSWER TO CROSS-
19 COMPLAINT FOR DECLARATORY
v. RELIEF AND REFORMATION
20
METROPOLITAN WATER DISTRICT OF Dept.: 304
21 Judge: Hon. Anne-Christine Massullo
SOUTHERN CALIFORNIA; ALL
22 PERSONS INTERESTED IN THE
Compl. Filed: May 30, 2014
VALIDITY OF THE RATES ADOPTED Cross-Compl. Filed: March 22, 2021
23 BY THE METROPOLITAN WATER
DISTRICT OF SOUTHERN CALIFORNIA Trial Date: Not Yet Set
24 ON APRIL 8, 2014 TO BE EFFECTIVE
JANUARY 1, 2015 AND JANUARY 1,
25 2016; and DOES 1-10,
26 Respondents and Defendants.
27
28
1
SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
1 METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA,
2
Cross-Complainant,
3
v.
4
SAN DIEGO COUNTY WATER
5 AUTHORITY,
6 Cross-Defendant.
7
8 Petitioner/Plaintiff and Cross-Defendant San Diego County Water Authority (“Water
9 Authority”) hereby answers the Cross-Complaint filed in the above-captioned action by
10 Respondent/Defendant and Cross-Complainant Metropolitan Water District of Southern
11 California (“Metropolitan”) on March 22, 2021, as follows:
12 GENERAL DENIAL
13 Pursuant to California Code of Civil Procedure section 431.30(d), the Water Authority
14 hereby denies generally each and every statement, allegation, and cause of action in the Cross-
15 Complaint. The Water Authority further denies that Metropolitan is entitled to the relief prayed
16 for in its Cross-Complaint.
17 FACTUAL STATEMENT IN SUPPORT OF GENERAL DENIAL
18 AND AFFIRMATIVE DEFENSES
19 Disappointed by its prior litigation failures and faced with binding precedent adjudicating
20 the unlawfulness of its wheeling and transportation rates, Metropolitan’s Cross-Complaint seeks
21 to relitigate numerous issues that were previously decided in the related 2010 and 2012 cases.
22 (See, e.g., San Diego County Water Authority v. Metropolitan Water District of Southern
23 California (2017) 12 Cal.App.5th 1124 (SDCWA); April 24, 2014 Statement of Decision on Rate
24 Setting Challenges (Phase I SOD); August 28, 2015 Statement of Decision (Phase II SOD).)1 It
25 1
Metropolitan’s Answer to the Water Authority’s First Amended Complaint similarly seeks to
26 relitigate issues and defenses that were previously decided against Metropolitan. (See Mar. 22,
2021 Metropolitan Answer at pp. 19–33.) Among other things, this Court and the Court of
27 Appeal have conclusively rejected Metropolitan’s affirmative defenses of waiver, consent,
estoppel, illegality, mistake of law, and offset and unjust enrichment. (See Phase II SOD at pp.
28 18–25; SDCWA, supra, 12 Cal.App.5th at p. 1154 [“Metropolitan has made several assertions on
appeal denying an enforceable contract and actionable breach but none is persuasive.”].)
2
SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
1 cannot do so. The Court of Appeal’s decision in SDCWA is binding and has collateral estoppel
2 effect here.
3 In its First Cause of Action, Metropolitan seeks a declaration that its 2015 and 2016
4 wheeling rate and transportation rates charged under the Exchange Agreement lawfully include
5 the Water Stewardship Rate. (See Cross-Complaint at ¶¶ 54–61.) But the Court of Appeal
6 previously held that Metropolitan’s inclusion of its Water Stewardship Rate as a component of its
7 wheeling rates and transportation rates charged under the Exchange Agreement violates the
8 Wheeling Statutes because demand management programs funded by the Water Stewardship Rate
9 are “not a cost of using the conveyance system to wheel water.” (SDCWA, supra, 12 Cal.App.5th
10 at p. 1150.) The Water Stewardship Rate is “supply-related, not transportation-related, so . . . its
11 inclusion as a component of the wheeling rate and exchange agreement transportation rates is also
12 unlawful under the common law.” (Id. at p. 1152.) Moreover, Metropolitan violated “the
13 contractual price term, not just the wheeling rate, and actionable injury is shown by payment of a
14 water stewardship rate unrelated to the transportation services provided.” (Id. at p. 1154.) Those
15 rulings are binding.
16 In its Second Cause of Action, Metropolitan seeks a declaration that it is not required to
17 credit the offsetting benefits of the Water Authority’s conserved third-party water. (See Cross-
18 Complaint at ¶¶ 62–69.) But Metropolitan is obligated to provide the Water Authority with
19 “reasonable credit for any offsetting benefits” under the “fair compensation” requirement in
20 Water Code section 1811, subdivision (c). As this Court has held, “the ‘fair compensation’
21 requirement in the Wheeling Statute specifically includes the transactions governed by the
22 Exchange Agreement.” (See Feb. 16, 2021 Order Re Metropolitan’s Demurrer and Motion to
23 Strike the First Amended Complaint at 6; see also ibid. [explaining that the Court of Appeal
24 “applied” Water Code section 1811, subdivision (c) “to the parties’ Exchange Agreement.”].)
25 Metropolitan has admittedly failed to comply with its statutory and contractual obligation to
26 credit the offsetting benefits of the Water Authority’s conserved water.
27 In its Third Cause of Action, Metropolitan seeks a declaration that Proposition 26 is
28 inapplicable because its rates and charges are supposedly not “imposed.” (See Cross-Complaint
3
SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
1 at ¶¶ 70–77.) But Judge Karnow rejected Metropolitan’s argument and held that Proposition 26
2 does apply to Metropolitan’s rate-setting. (See Phase I SOD at p. 48.) As Judge Karnow
3 concluded following trial, “the record contains numerous references to the fact that Met will
4 ‘IMPOSE RATES AND CHARGES.’” (Ibid. [citing Metropolitan’s Administrative Record].)
5 Moreover, “the 2012 Official Statement to Met’s bondholders confirms that [the Water Authority]
6 had no choice but to use Met’s facilities to wheel water.” (Ibid.) Additionally, and most
7 importantly, the Court of Appeal applied the requirements of Proposition 26 to Metropolitan’s
8 rates and charges. (SDCWA, supra, 12 Cal.App.5th at pp. 1152-1153.) Indeed, the Court of
9 Appeal specifically applied the changed standard of review under Proposition 26 to
10 Metropolitan’s rates. (Id. at 1152, quoting Cal. Const., art. XIII C, § 1 [“Metropolitan ‘bears the
11 burden of proving by a preponderance of the evidence’ that its charge is not a tax and that the
12 amount charged ‘is no more than necessary to cover the reasonable costs of the governmental
13 activity.’”].)
14 Similarly, in its Fourth Cause of Action, Metropolitan seeks a declaration that
15 Government Code section 54999.7(a) is inapplicable. (See Cross-Complaint at ¶¶ 78–85.) Once
16 again, Metropolitan has previously made this argument and lost. (See Phase II at p. 50.) Judge
17 Karnow found that “[n]othing in [section 54999.7(a)] suggests that it is not applicable” to
18 Metropolitan’s rate-setting. (Ibid.)
19 In its Fifth Cause of Action, Metropolitan seeks a declaration to excuse itself from
20 complying with established principles of “cost causation.” (See Cross-Complaint at ¶¶ 86–94.)
21 But, again, Metropolitan attempts to re-write history and this Court’s prior decisions. As Judge
22 Karnow held—and as Metropolitan previously agreed—Metropolitan “is obligated to set its rates
23 based on principles of cost causation, that is, that Met must charge for its services based only on
24 what it costs to provide them.” (See Phase I SOD at 47 [noting that the “parties agree[d]” to this
25 principle in the 2010 and 2012 cases].) Those same cost-causation principles continue to apply in
26 this case and to Metropolitan’s rate-setting.
27 In its Sixth, Seventh, Eighth, and Tenth Causes of Action, Metropolitan reprises various
28 unsuccessful attacks on the Exchange Agreement. (See Cross-Complaint at ¶¶ 95–117, 124–
4
SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
1 129.) Metropolitan’s Sixth and Seventh Causes of Action rehash its erroneous argument that the
2 Exchange Agreement is not subject to the “fair compensation” provisions of the Wheeling
3 Statutes. (Id. at ¶¶ 95–109.) Its Eighth Cause of Action seeks a declaration that Metropolitan
4 may unilaterally determine what would be “fair compensation” to convey the Water Authority’s
5 water. (Id. at ¶¶ 110–117.) And its Tenth Cause of Action seeks to declare unspecified rights and
6 duties under the Exchange Agreement. (Id. at ¶¶ 124–129.) Yet again, these issues have been
7 extensively litigated in the prior cases and Metropolitan’s arguments rejected. Indeed, as
8 discussed above, the Court of Appeal explicitly applied the “fair compensation” requirement in
9 Water Code section 1811, subdivision (c) to the Exchange Agreement. (See SDCWA, supra, 12
10 Cal.App.5th at p. 1154; see also Feb. 16, 2021 Order Re Metropolitan’s Demurrer and Motion to
11 Strike the First Amended Complaint at 6.) This Court and the Court of Appeal also conclusively
12 rejected Metropolitan’s revisionist history of the negotiation and interpretation of the Exchange
13 Agreement, finding that Metropolitan’s witnesses lacked credibility on the subject. (See Phase II
14 SOD at pp. 8–9, 24 & fns. 12 & 39; SDCWA, supra, 12 Cal.App.5th at p. 1154.) Likewise, both
15 this Court and the Court of Appeal have previously addressed Metropolitan’s duties and
16 obligations under the Exchange Agreement. (Phase II SOD at pp. 1–25; SDCWA, supra, 12
17 Cal.App.5th at pp. 1154–1155.) And the Water Authority is entitled to ordinary contractual
18 remedies for Metropolitan’s breaches of the price term of the Exchange Agreement, including
19 damages. (Ibid.)
20 Finally, Metropolitan’s Ninth and Eleventh Causes of Action seek to reform the Exchange
21 Agreement based on supposed “fraud or a mutual mistake of the parties, or a mistake of one
22 party . . . .” (See Cross-Complaint at ¶¶ 118–123, 130–135, citing Cal. Civ. Code, § 3399.) But
23 Metropolitan’s reformation causes of action are just repackaged versions of its previously rejected
24 affirmative defenses in the 2010 and 2012 cases. As Judge Karnow held, “[t]here was no mistake
25 of law” with respect to the Exchange Agreement. (See Phase II SOD at pp. 23–24.) To the
26 contrary, “the parties knew [the Water Authority] might challenge Met’s rate structure, were
27 unsure which party would prevail in such a lawsuit, and contracted in a way that accounted for
28 Met’s interests if its rates were unlawful.” (Id. at p. 24.) “Met, as experienced in state water law
5
SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
1 as any entity, and served by some of the best lawyers in the country, has never been misled by
2 [the Water Authority]; it just disagrees with [the Water Authority].” (Id. at p. 21 fn. 33.) The
3 Court of Appeal affirmed these rulings in the 2010 and 2012 cases. (See SDCWA, supra, 12
4 Cal.App.5th at p. 1154 [“Metropolitan has made several assertions on appeal denying an
5 enforceable contract and actionable breach but none is persuasive.”].) There is no basis to reform
6 the Exchange Agreement.
7 AFFIRMATIVE DEFENSES
8 The Water Authority further asserts the following separate and independent affirmative
9 defenses pursuant to California Code of Civil Procedure section 431.30(g). Without admitting
10 any of the allegations in Metropolitan’s Cross-Complaint and/or any other wrongful conduct, and
11 without assuming any burden of proof not imposed by law, the Water Authority states as follows:
12 FIRST AFFIRMATIVE DEFENSE
13 (Failure to State a Claim)
14 The Cross-Complaint, and each purported cause of action and claim for relief contained
15 therein, fails to state facts sufficient to constitute a cause of action against the Water Authority.
16 SECOND AFFIRMATIVE DEFENSE
17 (Collateral Estoppel/Issue Preclusion)
18 The Cross-Complaint, and each purported cause of action and claim for relief contained
19 therein, is barred by collateral estoppel/issue preclusion. The issues presented in the Cross-
20 Complaint are identical to issues decided in prior litigation. (See, e.g., SDCWA, supra,
21 12 Cal.App.5th at pp. 1129–1166; see also Phase I SOD at pp. 47–61; Phase II SOD at pp. 5–29.)
22 The parties are identical. All requirements of collateral estoppel/issue preclusion are fully
23 satisfied. Additionally, the former cases have resulted in a binding Court of Appeal decision, and
24 will have resulted in a binding trial court judgment and a binding writ of mandate by the time this
25 case is heard. (See, e.g., SDCWA, supra, 12 Cal.App.5th at pp. 1129–1166; August 13, 2020
26 Judgment at pp. 1–7; August 12, 2020 Writ of Mandate at pp. 1–2.) (Metropolitan’s appeal of the
27 judgment and writ is currently ongoing.)
28
6
SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
1 THIRD AFFIRMATIVE DEFENSE
2 (Equitable and/or Judicial Estoppel)
3 Metropolitan is equitably and/or judicially estopped, in whole or in part, from asserting
4 each purported cause of action and claim for relief made in the Cross-Complaint, and from
5 obtaining any relief in this matter, as a result of Metropolitan’s acts and omissions.
6 FOURTH AFFIRMATIVE DEFENSE
7 (Unclean Hands)
8 No relief may be obtained under the Cross-Complaint, and each purported cause of action
9 asserted therein, by reason of the doctrine of unclean hands. Specifically, Metropolitan has
10 violated conscience, good faith, and/or other equitable principle(s) in its prior conduct in
11 connection with the Exchange Agreement and/or promises alleged as the basis for Metropolitan’s
12 claims.
13 FIFTH AFFIRMATIVE DEFENSE
14 (Unjust Enrichment)
15 Metropolitan’s Cross-Complaint, and each purported cause of action asserted therein, is
16 barred in whole or in part because Metropolitan would be unjustly enriched by any declaratory
17 relief and/or reformation of the Exchange Agreement.
18 SIXTH AFFIRMATIVE DEFENSE
19 (Laches)
20 Metropolitan’s Cross-Complaint, and, specifically, the Ninth and Eleventh Causes of
21 Action, is barred by the doctrine of laches.
22 SEVENTH AFFIRMATIVE DEFENSE
23 (Payment and/or Full Performance)
24 Metropolitan’s Cross-Complaint, and, specifically, the Ninth and Eleventh Causes of
25 Action, is barred by the Water Authority’s payment and/or full performance.
26 EIGHTH AFFIRMATIVE DEFENSE
27 (Waiver, Forfeiture, and/or Abandonment)
28 Metropolitan’s Cross-Complaint, and, specifically, the Ninth and Eleventh Causes of
7
SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
1 Action, is barred by the doctrine of waiver, forfeiture, and/or abandonment.
2 NINTH AFFIRMATIVE DEFENSE
3 (Consent)
4 Metropolitan’s Cross-Complaint, and, specifically, the Ninth and Eleventh Causes of
5 Action, is barred by the doctrine of consent.
6 TENTH AFFIRMATIVE DEFENSE
7 (Privilege and/or Justification)
8 The Cross-Complaint, and each purported cause of action contained therein, is barred to
9 the extent that the Water Authority’s conduct was privileged and/or justified. The Water
10 Authority’s conduct was privileged and/or justified because it complied with all applicable laws,
11 rules, and regulations. Additionally, the Water Authority’s conduct was privileged and/or
12 justified because it acted in accordance with its contract with Metropolitan.
13 RIGHT TO ASSERT ADDITIONAL DEFENSE
14 The Water Authority reserves the right to assert additional affirmative defenses at such
15 time and to such extent as warranted by discovery and the factual developments in this case.
16 PRAYER FOR RELIEF2
17 WHEREFORE, the Water Authority prays for judgment as follows:
18 1. That Metropolitan be granted no relief in this action;
19 2. That judgment be entered in favor of the Water Authority and against Metropolitan
20 on each and every cause of action asserted in the Cross-Complaint;
21 3. That the Water Authority be awarded fees and costs; and
22 4. That the Court provide such further relief as it deems just and proper.
23
24
25
26
2
27 Metropolitan’s prayer for relief purports to ask the Court to declare rights as to its 2017 and
2018 wheeling and transportation rates, which are not at issue in this case. The Water Authority
28 assumes the reference to 2017–2018 rates is a typographical error and that Metropolitan intended
to pray for relief as to its 2015 and 2016 rates. (See Cross-Complaint at p. 32.)
8
SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
1 Dated: April 23, 2021 KEKER, VAN NEST & PETERS LLP
2
By:
3
NICHOLAS S. GOLDBERG
4
Attorneys IRUPetitioner Plaintiff
5 DQG&URVV'HIHQGDQW
SAN DIEGO COUNTY WATER
6 AUTHORITY
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SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
1 PROOF OF SERVICE
2 I am employed in the City and County of San Francisco, State of California in the office of a
member of the bar of this court at whose direction the following service was made. I am over the
3
age of eighteen years and not a party to the within action. My business address is Keker, Van
4 Nest & Peters LLP, 633 Battery Street, San Francisco, CA 94111-1809.
5 On April 23, 2021, I served the following document(s):
6 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
FOR DECLARATORY RELIEF AND REFORMATION
7
by serving a true copy of the above-described documents in the following manner:
8
9
BY FILE & SERVEXPRESS
10
11 On the date executed below, I electronically served or served via U.S. Mail the documents
described above via File & ServeXpress on the recipients designated on the Transaction
12
Receipt located on the via File & ServeXpress website.
13
Barry W. Lee Attorneys for Defendant and Respondent
14 Justin Jones Rodriguez The Metropolitan Water District of Southern
Manatt, Phelps & Phillips, LLP California
15 One Embarcadero Center, 30th Floor
San Francisco, CA 94111
16
Email: bwlee@manatt.com
17 jjrodriguez@manatt.com
18 Colin C. West Attorneys for Defendant and Respondent
James J. Dragna The Metropolitan Water District of Southern
19 Morgan, Lewis & Bockius LLP California
One Market, Spear Street Tower
20
San Francisco, CA 94105
21 Email: colin.west@morganlewis.com
jim.dragna@morganlewis.com
22
Marcia Scully Attorneys for Defendant and Respondent
23 Heather C. Beatty The Metropolitan Water District of Southern
24 Patricia Quilizapa California
The Metropolitan Water District of Southern
25 California
700 North Alameda Street
26 Los Angeles, CA 90012-2944
Email: mscully@mwdh2o.com
27 hbeatty@mwdh2o.com
28 pquilizapa@mwdh2o.com
10
SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
1 Joseph Vanderhorst Attorneys for Respondent
VIA U.S. MAIL The Metropolitan Water District of Southern
2 California
3
Patrick Q. Sullivan Attorneys for Real Party in Interest
4 City of Torrance City of Torrance
3031 Torrance Blvd.
5 Torrance, CA 90503-5059
Email: psullivan@torranceCA.Gov
6
7
David J. Aleshire Attorneys for Real Party in Interest
8 Stephen R. Onstot Municipal Water District of Orange County
Christine M. Carson
9 Aleshire & Wynder, LLP
10 18881 Von Karman Avenue, Suite 1700
Irvine, CA 92612
11 Email: daleshire@awattorneys.com
sonstot@awattorneys.com
12 ccarson@awattorneys.com
13 Steven M. Kennedy Attorneys for Real Party in Interest
Brunick, McElhaney & Kennedy Three Valleys Municipal Water District
14
P.O. Box 13130
15 San Bernardino, CA 92423-3130
Email: skennedy@bmbklawoffice.com
16
Michael N. Feuer, City Attorney Attorneys for Real Party in Interest
17 Joseph A. Brajevich City of Los Angeles
Tina Shim
18 Julie C. Riley
19 Melanie A. Tory
City of Los Angeles
20 221 North Figueroa Street, Suite 1000
Los Angeles, CA 90051-0100
21 Email: Mike.Feuer@lacity.org
joseph.brajevich@ladwp.com
22
tina.shim@ladwp.com
23 julie.riley@ladwp.com
melanie.tory@ladwp.com
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SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
1 Steven P. O’Neill Real Parties in Interest
Manuel D. Serpa Foothill Municipal Water District; Las
2 Olivarez Madruga Lemieux O’Neill, LLP Virgenes Municipal Water District; West
3 2659 Townsgate Road, Suite 226 Basin Municipal Water District; Eastern
Westlake Village, CA 91361 Municipal Water District; Western Municipal
4 Email: soneill@omlolaw.com Water District
mserpa@omlolaw.com
5
6 Executed on April 23, 2021, at San Francisco, California.
7 I declare under penalty of perjury under the laws of the State of California that the above is true
8 and correct.
9
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Elizabeth Myrddin
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SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT
Case No. CPF-14-514004
1672261
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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 EXEMPT FROM FILING FEES JOHN W. KEKER - # 49092 [GOVERNMENT CODE § 6103] 2 jkeker@keker.com DAN JACKSON - # 216091 ELECTRONICALLY 3 djackson@keker.com WARREN A. BRAUNIG - # 243884 F I L E D Superior Court of California, 4 wbraunig@keker.com County of San Francisco NICHOLAS S. GOLDBERG - # 273614 5 ngoldberg@keker.com 04/23/2021 633 Battery Street Clerk of the Court BY: EDWARD SANTOS 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 13 SAN DIEGO COUNTY WATER AUTHORITY 14 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 IN AND FOR THE COUNTY OF SAN FRANCISCO 17 SAN DIEGO COUNTY WATER Case No. CPF-14-514004 AUTHORITY, 18 SAN DIEGO COUNTY WATER Petitioner and Plaintiff, AUTHORITY’S ANSWER TO CROSS- 19 COMPLAINT FOR DECLARATORY v. RELIEF AND REFORMATION 20 METROPOLITAN WATER DISTRICT OF Dept.: 304 21 Judge: Hon. Anne-Christine Massullo SOUTHERN CALIFORNIA; ALL 22 PERSONS INTERESTED IN THE Compl. Filed: May 30, 2014 VALIDITY OF THE RATES ADOPTED Cross-Compl. Filed: March 22, 2021 23 BY THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA Trial Date: Not Yet Set 24 ON APRIL 8, 2014 TO BE EFFECTIVE JANUARY 1, 2015 AND JANUARY 1, 25 2016; and DOES 1-10, 26 Respondents and Defendants. 27 28 1 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261 1 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, 2 Cross-Complainant, 3 v. 4 SAN DIEGO COUNTY WATER 5 AUTHORITY, 6 Cross-Defendant. 7 8 Petitioner/Plaintiff and Cross-Defendant San Diego County Water Authority (“Water 9 Authority”) hereby answers the Cross-Complaint filed in the above-captioned action by 10 Respondent/Defendant and Cross-Complainant Metropolitan Water District of Southern 11 California (“Metropolitan”) on March 22, 2021, as follows: 12 GENERAL DENIAL 13 Pursuant to California Code of Civil Procedure section 431.30(d), the Water Authority 14 hereby denies generally each and every statement, allegation, and cause of action in the Cross- 15 Complaint. The Water Authority further denies that Metropolitan is entitled to the relief prayed 16 for in its Cross-Complaint. 17 FACTUAL STATEMENT IN SUPPORT OF GENERAL DENIAL 18 AND AFFIRMATIVE DEFENSES 19 Disappointed by its prior litigation failures and faced with binding precedent adjudicating 20 the unlawfulness of its wheeling and transportation rates, Metropolitan’s Cross-Complaint seeks 21 to relitigate numerous issues that were previously decided in the related 2010 and 2012 cases. 22 (See, e.g., San Diego County Water Authority v. Metropolitan Water District of Southern 23 California (2017) 12 Cal.App.5th 1124 (SDCWA); April 24, 2014 Statement of Decision on Rate 24 Setting Challenges (Phase I SOD); August 28, 2015 Statement of Decision (Phase II SOD).)1 It 25 1 Metropolitan’s Answer to the Water Authority’s First Amended Complaint similarly seeks to 26 relitigate issues and defenses that were previously decided against Metropolitan. (See Mar. 22, 2021 Metropolitan Answer at pp. 19–33.) Among other things, this Court and the Court of 27 Appeal have conclusively rejected Metropolitan’s affirmative defenses of waiver, consent, estoppel, illegality, mistake of law, and offset and unjust enrichment. (See Phase II SOD at pp. 28 18–25; SDCWA, supra, 12 Cal.App.5th at p. 1154 [“Metropolitan has made several assertions on appeal denying an enforceable contract and actionable breach but none is persuasive.”].) 2 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261 1 cannot do so. The Court of Appeal’s decision in SDCWA is binding and has collateral estoppel 2 effect here. 3 In its First Cause of Action, Metropolitan seeks a declaration that its 2015 and 2016 4 wheeling rate and transportation rates charged under the Exchange Agreement lawfully include 5 the Water Stewardship Rate. (See Cross-Complaint at ¶¶ 54–61.) But the Court of Appeal 6 previously held that Metropolitan’s inclusion of its Water Stewardship Rate as a component of its 7 wheeling rates and transportation rates charged under the Exchange Agreement violates the 8 Wheeling Statutes because demand management programs funded by the Water Stewardship Rate 9 are “not a cost of using the conveyance system to wheel water.” (SDCWA, supra, 12 Cal.App.5th 10 at p. 1150.) The Water Stewardship Rate is “supply-related, not transportation-related, so . . . its 11 inclusion as a component of the wheeling rate and exchange agreement transportation rates is also 12 unlawful under the common law.” (Id. at p. 1152.) Moreover, Metropolitan violated “the 13 contractual price term, not just the wheeling rate, and actionable injury is shown by payment of a 14 water stewardship rate unrelated to the transportation services provided.” (Id. at p. 1154.) Those 15 rulings are binding. 16 In its Second Cause of Action, Metropolitan seeks a declaration that it is not required to 17 credit the offsetting benefits of the Water Authority’s conserved third-party water. (See Cross- 18 Complaint at ¶¶ 62–69.) But Metropolitan is obligated to provide the Water Authority with 19 “reasonable credit for any offsetting benefits” under the “fair compensation” requirement in 20 Water Code section 1811, subdivision (c). As this Court has held, “the ‘fair compensation’ 21 requirement in the Wheeling Statute specifically includes the transactions governed by the 22 Exchange Agreement.” (See Feb. 16, 2021 Order Re Metropolitan’s Demurrer and Motion to 23 Strike the First Amended Complaint at 6; see also ibid. [explaining that the Court of Appeal 24 “applied” Water Code section 1811, subdivision (c) “to the parties’ Exchange Agreement.”].) 25 Metropolitan has admittedly failed to comply with its statutory and contractual obligation to 26 credit the offsetting benefits of the Water Authority’s conserved water. 27 In its Third Cause of Action, Metropolitan seeks a declaration that Proposition 26 is 28 inapplicable because its rates and charges are supposedly not “imposed.” (See Cross-Complaint 3 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261 1 at ¶¶ 70–77.) But Judge Karnow rejected Metropolitan’s argument and held that Proposition 26 2 does apply to Metropolitan’s rate-setting. (See Phase I SOD at p. 48.) As Judge Karnow 3 concluded following trial, “the record contains numerous references to the fact that Met will 4 ‘IMPOSE RATES AND CHARGES.’” (Ibid. [citing Metropolitan’s Administrative Record].) 5 Moreover, “the 2012 Official Statement to Met’s bondholders confirms that [the Water Authority] 6 had no choice but to use Met’s facilities to wheel water.” (Ibid.) Additionally, and most 7 importantly, the Court of Appeal applied the requirements of Proposition 26 to Metropolitan’s 8 rates and charges. (SDCWA, supra, 12 Cal.App.5th at pp. 1152-1153.) Indeed, the Court of 9 Appeal specifically applied the changed standard of review under Proposition 26 to 10 Metropolitan’s rates. (Id. at 1152, quoting Cal. Const., art. XIII C, § 1 [“Metropolitan ‘bears the 11 burden of proving by a preponderance of the evidence’ that its charge is not a tax and that the 12 amount charged ‘is no more than necessary to cover the reasonable costs of the governmental 13 activity.’”].) 14 Similarly, in its Fourth Cause of Action, Metropolitan seeks a declaration that 15 Government Code section 54999.7(a) is inapplicable. (See Cross-Complaint at ¶¶ 78–85.) Once 16 again, Metropolitan has previously made this argument and lost. (See Phase II at p. 50.) Judge 17 Karnow found that “[n]othing in [section 54999.7(a)] suggests that it is not applicable” to 18 Metropolitan’s rate-setting. (Ibid.) 19 In its Fifth Cause of Action, Metropolitan seeks a declaration to excuse itself from 20 complying with established principles of “cost causation.” (See Cross-Complaint at ¶¶ 86–94.) 21 But, again, Metropolitan attempts to re-write history and this Court’s prior decisions. As Judge 22 Karnow held—and as Metropolitan previously agreed—Metropolitan “is obligated to set its rates 23 based on principles of cost causation, that is, that Met must charge for its services based only on 24 what it costs to provide them.” (See Phase I SOD at 47 [noting that the “parties agree[d]” to this 25 principle in the 2010 and 2012 cases].) Those same cost-causation principles continue to apply in 26 this case and to Metropolitan’s rate-setting. 27 In its Sixth, Seventh, Eighth, and Tenth Causes of Action, Metropolitan reprises various 28 unsuccessful attacks on the Exchange Agreement. (See Cross-Complaint at ¶¶ 95–117, 124– 4 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261 1 129.) Metropolitan’s Sixth and Seventh Causes of Action rehash its erroneous argument that the 2 Exchange Agreement is not subject to the “fair compensation” provisions of the Wheeling 3 Statutes. (Id. at ¶¶ 95–109.) Its Eighth Cause of Action seeks a declaration that Metropolitan 4 may unilaterally determine what would be “fair compensation” to convey the Water Authority’s 5 water. (Id. at ¶¶ 110–117.) And its Tenth Cause of Action seeks to declare unspecified rights and 6 duties under the Exchange Agreement. (Id. at ¶¶ 124–129.) Yet again, these issues have been 7 extensively litigated in the prior cases and Metropolitan’s arguments rejected. Indeed, as 8 discussed above, the Court of Appeal explicitly applied the “fair compensation” requirement in 9 Water Code section 1811, subdivision (c) to the Exchange Agreement. (See SDCWA, supra, 12 10 Cal.App.5th at p. 1154; see also Feb. 16, 2021 Order Re Metropolitan’s Demurrer and Motion to 11 Strike the First Amended Complaint at 6.) This Court and the Court of Appeal also conclusively 12 rejected Metropolitan’s revisionist history of the negotiation and interpretation of the Exchange 13 Agreement, finding that Metropolitan’s witnesses lacked credibility on the subject. (See Phase II 14 SOD at pp. 8–9, 24 & fns. 12 & 39; SDCWA, supra, 12 Cal.App.5th at p. 1154.) Likewise, both 15 this Court and the Court of Appeal have previously addressed Metropolitan’s duties and 16 obligations under the Exchange Agreement. (Phase II SOD at pp. 1–25; SDCWA, supra, 12 17 Cal.App.5th at pp. 1154–1155.) And the Water Authority is entitled to ordinary contractual 18 remedies for Metropolitan’s breaches of the price term of the Exchange Agreement, including 19 damages. (Ibid.) 20 Finally, Metropolitan’s Ninth and Eleventh Causes of Action seek to reform the Exchange 21 Agreement based on supposed “fraud or a mutual mistake of the parties, or a mistake of one 22 party . . . .” (See Cross-Complaint at ¶¶ 118–123, 130–135, citing Cal. Civ. Code, § 3399.) But 23 Metropolitan’s reformation causes of action are just repackaged versions of its previously rejected 24 affirmative defenses in the 2010 and 2012 cases. As Judge Karnow held, “[t]here was no mistake 25 of law” with respect to the Exchange Agreement. (See Phase II SOD at pp. 23–24.) To the 26 contrary, “the parties knew [the Water Authority] might challenge Met’s rate structure, were 27 unsure which party would prevail in such a lawsuit, and contracted in a way that accounted for 28 Met’s interests if its rates were unlawful.” (Id. at p. 24.) “Met, as experienced in state water law 5 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261 1 as any entity, and served by some of the best lawyers in the country, has never been misled by 2 [the Water Authority]; it just disagrees with [the Water Authority].” (Id. at p. 21 fn. 33.) The 3 Court of Appeal affirmed these rulings in the 2010 and 2012 cases. (See SDCWA, supra, 12 4 Cal.App.5th at p. 1154 [“Metropolitan has made several assertions on appeal denying an 5 enforceable contract and actionable breach but none is persuasive.”].) There is no basis to reform 6 the Exchange Agreement. 7 AFFIRMATIVE DEFENSES 8 The Water Authority further asserts the following separate and independent affirmative 9 defenses pursuant to California Code of Civil Procedure section 431.30(g). Without admitting 10 any of the allegations in Metropolitan’s Cross-Complaint and/or any other wrongful conduct, and 11 without assuming any burden of proof not imposed by law, the Water Authority states as follows: 12 FIRST AFFIRMATIVE DEFENSE 13 (Failure to State a Claim) 14 The Cross-Complaint, and each purported cause of action and claim for relief contained 15 therein, fails to state facts sufficient to constitute a cause of action against the Water Authority. 16 SECOND AFFIRMATIVE DEFENSE 17 (Collateral Estoppel/Issue Preclusion) 18 The Cross-Complaint, and each purported cause of action and claim for relief contained 19 therein, is barred by collateral estoppel/issue preclusion. The issues presented in the Cross- 20 Complaint are identical to issues decided in prior litigation. (See, e.g., SDCWA, supra, 21 12 Cal.App.5th at pp. 1129–1166; see also Phase I SOD at pp. 47–61; Phase II SOD at pp. 5–29.) 22 The parties are identical. All requirements of collateral estoppel/issue preclusion are fully 23 satisfied. Additionally, the former cases have resulted in a binding Court of Appeal decision, and 24 will have resulted in a binding trial court judgment and a binding writ of mandate by the time this 25 case is heard. (See, e.g., SDCWA, supra, 12 Cal.App.5th at pp. 1129–1166; August 13, 2020 26 Judgment at pp. 1–7; August 12, 2020 Writ of Mandate at pp. 1–2.) (Metropolitan’s appeal of the 27 judgment and writ is currently ongoing.) 28 6 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261 1 THIRD AFFIRMATIVE DEFENSE 2 (Equitable and/or Judicial Estoppel) 3 Metropolitan is equitably and/or judicially estopped, in whole or in part, from asserting 4 each purported cause of action and claim for relief made in the Cross-Complaint, and from 5 obtaining any relief in this matter, as a result of Metropolitan’s acts and omissions. 6 FOURTH AFFIRMATIVE DEFENSE 7 (Unclean Hands) 8 No relief may be obtained under the Cross-Complaint, and each purported cause of action 9 asserted therein, by reason of the doctrine of unclean hands. Specifically, Metropolitan has 10 violated conscience, good faith, and/or other equitable principle(s) in its prior conduct in 11 connection with the Exchange Agreement and/or promises alleged as the basis for Metropolitan’s 12 claims. 13 FIFTH AFFIRMATIVE DEFENSE 14 (Unjust Enrichment) 15 Metropolitan’s Cross-Complaint, and each purported cause of action asserted therein, is 16 barred in whole or in part because Metropolitan would be unjustly enriched by any declaratory 17 relief and/or reformation of the Exchange Agreement. 18 SIXTH AFFIRMATIVE DEFENSE 19 (Laches) 20 Metropolitan’s Cross-Complaint, and, specifically, the Ninth and Eleventh Causes of 21 Action, is barred by the doctrine of laches. 22 SEVENTH AFFIRMATIVE DEFENSE 23 (Payment and/or Full Performance) 24 Metropolitan’s Cross-Complaint, and, specifically, the Ninth and Eleventh Causes of 25 Action, is barred by the Water Authority’s payment and/or full performance. 26 EIGHTH AFFIRMATIVE DEFENSE 27 (Waiver, Forfeiture, and/or Abandonment) 28 Metropolitan’s Cross-Complaint, and, specifically, the Ninth and Eleventh Causes of 7 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261 1 Action, is barred by the doctrine of waiver, forfeiture, and/or abandonment. 2 NINTH AFFIRMATIVE DEFENSE 3 (Consent) 4 Metropolitan’s Cross-Complaint, and, specifically, the Ninth and Eleventh Causes of 5 Action, is barred by the doctrine of consent. 6 TENTH AFFIRMATIVE DEFENSE 7 (Privilege and/or Justification) 8 The Cross-Complaint, and each purported cause of action contained therein, is barred to 9 the extent that the Water Authority’s conduct was privileged and/or justified. The Water 10 Authority’s conduct was privileged and/or justified because it complied with all applicable laws, 11 rules, and regulations. Additionally, the Water Authority’s conduct was privileged and/or 12 justified because it acted in accordance with its contract with Metropolitan. 13 RIGHT TO ASSERT ADDITIONAL DEFENSE 14 The Water Authority reserves the right to assert additional affirmative defenses at such 15 time and to such extent as warranted by discovery and the factual developments in this case. 16 PRAYER FOR RELIEF2 17 WHEREFORE, the Water Authority prays for judgment as follows: 18 1. That Metropolitan be granted no relief in this action; 19 2. That judgment be entered in favor of the Water Authority and against Metropolitan 20 on each and every cause of action asserted in the Cross-Complaint; 21 3. That the Water Authority be awarded fees and costs; and 22 4. That the Court provide such further relief as it deems just and proper. 23 24 25 26 2 27 Metropolitan’s prayer for relief purports to ask the Court to declare rights as to its 2017 and 2018 wheeling and transportation rates, which are not at issue in this case. The Water Authority 28 assumes the reference to 2017–2018 rates is a typographical error and that Metropolitan intended to pray for relief as to its 2015 and 2016 rates. (See Cross-Complaint at p. 32.) 8 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261 1 Dated: April 23, 2021 KEKER, VAN NEST & PETERS LLP 2 By: 3 NICHOLAS S. GOLDBERG 4 Attorneys IRUPetitioner Plaintiff 5 DQG&URVV'HIHQGDQW SAN DIEGO COUNTY WATER 6 AUTHORITY 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261 1 PROOF OF SERVICE 2 I am employed in the City and County of San Francisco, State of California in the office of a member of the bar of this court at whose direction the following service was made. I am over the 3 age of eighteen years and not a party to the within action. My business address is Keker, Van 4 Nest & Peters LLP, 633 Battery Street, San Francisco, CA 94111-1809. 5 On April 23, 2021, I served the following document(s): 6 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT FOR DECLARATORY RELIEF AND REFORMATION 7 by serving a true copy of the above-described documents in the following manner: 8 9 BY FILE & SERVEXPRESS 10 11 On the date executed below, I electronically served or served via U.S. Mail the documents described above via File & ServeXpress on the recipients designated on the Transaction 12 Receipt located on the via File & ServeXpress website. 13 Barry W. Lee Attorneys for Defendant and Respondent 14 Justin Jones Rodriguez The Metropolitan Water District of Southern Manatt, Phelps & Phillips, LLP California 15 One Embarcadero Center, 30th Floor San Francisco, CA 94111 16 Email: bwlee@manatt.com 17 jjrodriguez@manatt.com 18 Colin C. West Attorneys for Defendant and Respondent James J. Dragna The Metropolitan Water District of Southern 19 Morgan, Lewis & Bockius LLP California One Market, Spear Street Tower 20 San Francisco, CA 94105 21 Email: colin.west@morganlewis.com jim.dragna@morganlewis.com 22 Marcia Scully Attorneys for Defendant and Respondent 23 Heather C. Beatty The Metropolitan Water District of Southern 24 Patricia Quilizapa California The Metropolitan Water District of Southern 25 California 700 North Alameda Street 26 Los Angeles, CA 90012-2944 Email: mscully@mwdh2o.com 27 hbeatty@mwdh2o.com 28 pquilizapa@mwdh2o.com 10 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261 1 Joseph Vanderhorst Attorneys for Respondent VIA U.S. MAIL The Metropolitan Water District of Southern 2 California 3 Patrick Q. Sullivan Attorneys for Real Party in Interest 4 City of Torrance City of Torrance 3031 Torrance Blvd. 5 Torrance, CA 90503-5059 Email: psullivan@torranceCA.Gov 6 7 David J. Aleshire Attorneys for Real Party in Interest 8 Stephen R. Onstot Municipal Water District of Orange County Christine M. Carson 9 Aleshire & Wynder, LLP 10 18881 Von Karman Avenue, Suite 1700 Irvine, CA 92612 11 Email: daleshire@awattorneys.com sonstot@awattorneys.com 12 ccarson@awattorneys.com 13 Steven M. Kennedy Attorneys for Real Party in Interest Brunick, McElhaney & Kennedy Three Valleys Municipal Water District 14 P.O. Box 13130 15 San Bernardino, CA 92423-3130 Email: skennedy@bmbklawoffice.com 16 Michael N. Feuer, City Attorney Attorneys for Real Party in Interest 17 Joseph A. Brajevich City of Los Angeles Tina Shim 18 Julie C. Riley 19 Melanie A. Tory City of Los Angeles 20 221 North Figueroa Street, Suite 1000 Los Angeles, CA 90051-0100 21 Email: Mike.Feuer@lacity.org joseph.brajevich@ladwp.com 22 tina.shim@ladwp.com 23 julie.riley@ladwp.com melanie.tory@ladwp.com 24 25 26 27 28 11 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261 1 Steven P. O’Neill Real Parties in Interest Manuel D. Serpa Foothill Municipal Water District; Las 2 Olivarez Madruga Lemieux O’Neill, LLP Virgenes Municipal Water District; West 3 2659 Townsgate Road, Suite 226 Basin Municipal Water District; Eastern Westlake Village, CA 91361 Municipal Water District; Western Municipal 4 Email: soneill@omlolaw.com Water District mserpa@omlolaw.com 5 6 Executed on April 23, 2021, at San Francisco, California. 7 I declare under penalty of perjury under the laws of the State of California that the above is true 8 and correct. 9 10 11 Elizabeth Myrddin 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 SAN DIEGO COUNTY WATER AUTHORITY’S ANSWER TO CROSS-COMPLAINT Case No. CPF-14-514004 1672261