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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 01/28/2021
633 Battery Street Clerk of the Court
BY: YOLANDA TABO-RAMIREZ
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 and Plaintiff
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 REQUEST FOR
19 JUDICIAL NOTICE IN SUPPORT OF
v. OPPOSITION TO METROPOLITAN
20 WATER DISTRICT OF SOUTHERN
METROPOLITAN WATER DISTRICT OF CALIFORNIA’S DEMURRER AND
21 MOTION TO STRIKE; EXHIBITS 1-2
SOUTHERN CALIFORNIA; ALL
22 PERSONS INTERESTED IN THE
Date: February 10, 2021
VALIDITY OF THE RATES ADOPTED Time: 9:15 a.m.
23 BY THE METROPOLITAN WATER Dept.: 304
DISTRICT OF SOUTHERN CALIFORNIA Judge: Hon. Anne-Christine Massullo
24 ON APRIL 8, 2014 TO BE EFFECTIVE
JANUARY 1, 2015 AND JANUARY 1, Date Filed: May 30, 2014
25 2016; and DOES 1-10,
Trial Date: Not Yet Set
26 Respondents and Defendants.
27
28
SAN DIEGO COUNTY WATER AUTHORITY’S REQUEST FOR JUDICIAL NOTICE
Case No. CPF-14-514004
1638348
1 Petitioner and Plaintiff San Diego County Water Authority (“Water Authority”) hereby
2 requests that the Court take judicial notice of the publicly filed court documents identified below.
3 Exhibit 1 is a true and correct copy of the Water Authority’s Petition for Rehearing, filed
4 July 6, 2017, in the appeal of the 2010 and 2012 Cases between the Water Authority and
5 Metropolitan Water District of Southern California, Appeal No. A146901.
6 Exhibit 2 is a true and correct copy of the Water Authority’s Petition for Review, filed
7 July 31, 2017, seeking Supreme Court review of the appellate decision in the 2010 and 2012
8 Cases, Case No. S243500.
9 These documents and the existence of the arguments contained therein are a proper
10 subject of judicial notice, as the pleadings are “[r]ecords of court of . . . a[] court of this state.”
11 (Evid. Code, § 452, subd. (c); see also Tucker v. Pac. Bell Mobile Servs. (2012) 208 Cal.App.4th
12 201, 219 [“pleadings and declarations are records of a court of this state”].) In addition, these
13 documents and the existence of the arguments contained therein are suitable for judicial notice as
14 facts “not reasonably subject to dispute” and “capable of immediate and accurate determination
15 by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) These
16 documents are publicly filed on the dockets of the First District Court of Appeal and the
17 California Supreme Court, respectively. Their filing and contents are beyond reasonable dispute.
18 In the context of the Water Authority’s opposition briefing, judicial notice is appropriate
19 for the limited purpose for which the Water Authority has requested it. (See Opp’n at p. 11.)
20 Courts routinely take judicial notice of court records evidencing the history and posture of the
21 case before them, including court records from related litigation. (See, e.g., Shine v. Williams-
22 Sonoma, Inc. (2018) 23 Cal.App.5th 1070, 1076–77; People v. Putney (2016) 1 Cal.App.5th
23 1058, 1063 fn. 4.) This Court should do so here as well.
24 ///
25 ///
26 ///
27 ///
28 ///
2
SAN DIEGO COUNTY WATER AUTHORITY’S REQUEST FOR JUDICIAL NOTICE
Case No. CPF-14-514004
1638348
1
2 Dated: January 28, 2021 KEKER, VAN NEST & PETERS LLP
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By:
4
NICHOLAS S. GOLDBERG
5
Attorneys for Petitioner and Plaintiff
6 SAN DIEGO COUNTY WATER
AUTHORITY
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SAN DIEGO COUNTY WATER AUTHORITY’S REQUEST FOR JUDICIAL NOTICE
Case No. CPF-14-514004
1638348
EXHIBIT 1
311403
Nos. A146901 and A148266
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE
SAN DIEGO COUNTY WATER AUTHORITY,
Respondent and Cross-Appellant,
v.
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA,
Appellant and Cross-Respondent.
Appeal From Judgments And Peremptory Writs of Mandate After Court Trials
Superior Court for the County of San Francisco
Nos. CFP-10-510830 and CFP-12-512466
The Honorable Richard A. Kramer and Curtis E.A. Karnow
SAN DIEGO COUNTY WATER AUTHORITY’S PETITION FOR REHEARING
KEKER, VAN NEST & PETERS LLP SAN DIEGO COUNTY
*JOHN W. KEKER - #49092 WATER AUTHORITY
Received
jkeker@keker.com MARK J. HATTAM - #173667
DANIEL PURCELL - #191424 (General Counsel)
dpurcell@keker.com mhattam@sdcwa.org
DAN JACKSON - #216091 4677 Overland Avenue
by
djackson@keker.com San Diego, CA 92123
WARREN A. BRAUNIG - #243884 Telephone: (858) 522-6791 First
wbraunig@keker.com Facsimile: (858) 522-6566
District
633 Battery Street
San Francisco, CA 94111-1809
Telephone: 415 391 5400
Facsimile: 415 397 7188
Court
Attorneys for Respondent and Cross-Appellant
of
SAN DIEGO COUNTY WATER AUTHORITY
Appeal
1
1175742.01
TABLE OF CONTENTS
Page
I. INTRODUCTION ................................................................................ 5
II. ARGUMENT ....................................................................................... 10
A. The Opinion misstates and misapplies the standards of
review. ....................................................................................... 10
B. The Opinion omits and misstates material facts and issues
relating to Metropolitan’s allocation of State Water Project
costs and the setting of Metropolitan’s wheeling rates. ............ 13
1. The Opinion omits and misstates material facts and
issues relating to Resolution 8520 and Morro Bay. ....... 13
2. The Opinion omits and misstates material facts and
issues relating to the RMI and Raftelis reports and
Palmdale. ....................................................................... 18
3. The Opinion omits and misstates material facts and
issues relating to wheeling from Placer County in
2009. ............................................................................... 26
C. The Opinion further misstates material facts and issues
relating to Proposition 26. ......................................................... 31
D. The Court should remand for the trial court to determine the
Water Authority’s “reasonable credit” under Section 1811(c). 37
E. The Court should clarify that the Opinion does not uphold or
validate the Water Stewardship Rate. ....................................... 40
F. The Water Authority objects to the Opinion’s extensive use of
materials not in the record on appeal or before the trial court. . 42
III. CONCLUSION .................................................................................... 43
2
1175742.01
TABLE OF AUTHORITIES
Page(s)
State Cases
Beasley v. Wells Fargo Bank
235 Cal. App. 3d 1383 (1991) ........................................................... 25, 26
Cal. Farm Bureau Fed’n v. State Water Res. Control Bd.
51 Cal. 4th 421 (2011) ................................................................. 12, 13, 26
Capistrano Taxpayers Ass’n, Inc. v. City of San Juan Capistrano
235 Cal. App. 4th 1493 (2015) .............................................. 12, 33, 34, 35
Gonzales v. City of Santa Ana
12 Cal. App. 4th 1335 (1993) .................................................................. 26
In re Marriage of Eaddy
144 Cal. App. 4th 1202 (2006) ................................................................ 43
In re Quantification Settlement Agreement Cases
201 Cal. App. 4th 758 (2011) .................................................. 8, 21, 22, 39
Jacks v. City of Santa Barbara
— Cal. 4th —, No. S225589, 2017 WL 2805638 (June 29, 2017) ........... 7
Lauderdale Assocs. v. Dep’t of Health Servs.
67 Cal. App. 4th 117 (1998) .............................................................. 12, 24
Metropolitan Water Dist. of S. Cal. v. Imperial Irrigation Dist.
80 Cal. App. 4th 1403 (2000) ............................................................ passim
Newhall Cty. Water Dist. v. Castaic Lake Water Agency
243 Cal. App. 4th 1430 (2016) ........................................ 18, 33, 34, 35, 36
Palmdale v. Palmdale Water Dist.
198 Cal. App. 4th 926 (2011) .................................................. 7, 18, 22, 25
People v. Alvarez
27 Cal. 4th 1161 (2002) ........................................................................... 42
Saathoff v. City of San Diego
35 Cal. App. 4th 697 (1995) .................................................. 11, 23, 25, 26
San Luis Coastal Unified Sch. Dist. v. City of Morro Bay
81 Cal. App. 4th 1044 (2000) ............................................................ passim
Schmeer v. Cty. of Los Angeles
213 Cal. App. 4th 1310 (2013) .......................................................... passim
3
1175742.01
Vons Cos., Inc. v. Seabest Foods, Inc.
14 Cal. 4th 434 (1996) ............................................................................. 42
Constitutional Provisions
Cal. Const., art. X, § 6 ..................................................................... 14, 19, 22
Cal. Const. art. 13C, § 1 ...................................................... 32, 33, 35, 36, 37
Statutes
1997 Cal. Legis. Serv. Ch. 874, S.B. 1082 (Oct. 12, 1997) ........................ 17
Cal. Gov’t Code § 54999.7 ........................................................ 13, 30, 41, 42
Cal. Wat. Code § 109 .................................................................................. 14
Cal. Wat. Code § 1810 .................................................................... 14, 15, 16
Cal. Wat. Code § 1811 ................................................................ 9, 38, 40, 44
Cal. Wat. Code § 1812 .......................................................................... 14, 17
Cal. Wat. Code § 1812.5 ............................................................................. 17
Cal. Wat. Code § 1813 .......................................................................... passim
Court Rules
Cal. Rule of Court 8.268.......................................................................... 5, 43
4
1175742.01
I. INTRODUCTION
Pursuant to California Rule of Court 8.268, the San Diego County
Water Authority (“Water Authority”) respectfully petitions this Court for
rehearing in connection with this Court’s June 21, 2017 Opinion in this
case between the Water Authority and the Metropolitan Water District of
Southern California (“Metropolitan”). The Water Authority respectfully
draws the Court’s attention to four fundamental errors in the Opinion, and
several related omissions and misstatements.
First, the Opinion does not afford sufficient deference to the trial
court’s factual findings, does not “consider all relevant evidence,” and does
not “give due consideration to the purposes and policies” of the Wheeling
Statutes. Wat. Code § 1813. The Opinion relies on Metropolitan v.
Imperial Irrigation District, 80 Cal. App. 4th 1403 (2000) (“Imperial
Irrigation”), but that case was remanded for precisely the findings the trial
court made here, including as to whether Metropolitan’s wheeling rates
discourage wheeling. See id. at 1436. As Justice Siggins correctly
emphasizes in his concurrence, the Wheeling Statutes “make clear that ‘any
determination made under this article’ can be the subject of a judicial
challenge in which ‘the court shall consider all relevant evidence, and the
court shall give due consideration to the purposes and policies of this
article.’” Op., Siggins, J., concurring (quoting Wat. Code § 1813). That is
what the trial court did in finding, among other things, that Metropolitan’s
5
1175742.01
wheeling rates discourage wheeling. Yet the Opinion does not address that
finding or the substantial evidence on which it was based.
Second, the Opinion erroneously holds, as a matter of law, that
Metropolitan properly allocates to its own transportation rates the State
Water Project costs identified by the California Department of Water
Resources (“DWR”) as the transportation component of DWR’s charges for
providing a water supply to Metropolitan (“DWR’s water-supply-delivery
1
charges”). As the trial court correctly found, those are costs of supplying
water to Metropolitan, not Metropolitan’s costs of transportation or
wheeling. Indeed, Metropolitan itself previously categorized DWR’s
water-supply-delivery charges as Metropolitan’s supply costs, consistent
with industry practice, including that of other State Water Project
contractors. As the trial court rightly found, moreover, Metropolitan’s
deviation from this established practice was not, as this Court’s Opinion
incorrectly assumes, driven by Metropolitan’s need to recover its State
Water Project costs, but instead was explicitly based on Metropolitan’s
unlawful decision to set a wheeling rate that would dissuade wheelers from
purchasing water from sources other than Metropolitan. See, e.g., 27-AA-
7506-09; 5-AR2010-1234-35, 1244-54_01.
1
The Opinion states that DWR “bills for transportation costs separately
from water supply.” Op. at 22. But transportation is a component of
DWR’s “CHARGES FOR A WATER SUPPLY.” 18-AA-5037. Citations
here follow the format of the parties’ appellate briefs. See AOB at 23 n.1.
6
1175742.01
As the court held in Palmdale v. Palmdale Water District, 198 Cal.
App. 4th 926 (2011), the law prohibits public agencies from allocating
costs in this manner to preserve “rate stability.” Id. at 937-38. Indeed,
“rate stability,” in this context, is a euphemism for protectionism, which
violates the constitutional, statutory, and common-law requirement that the
costs of government services must be allocated to those who actually cause
those costs to be incurred (“cost causation”). As the California Supreme
Court stated on June 29, 2017—after this Court issued its Opinion—costs
are properly allocated “to those who generate the costs,” whereas if a “local
governmental agency were allowed to impose charges in excess of the
special benefit received by the payor or the cost associated with the payor’s
activities, the imposition of fees would become a vehicle for generating
revenue independent of the purpose of the fees,” in violation of Proposition
26 and its predecessors. Jacks v. City of Santa Barbara, — Cal. 4th —, No.
S225589, 2017 WL 2805638, at *5 (June 29, 2017).
Further, the Wheeling Statutes not only require Metropolitan to set
its wheeling rates based on cost causation, but also to “act in a reasonable
manner consistent with the requirements of law to facilitate the voluntary
sale, lease, or exchange of water,” Wat. Code § 1813 (emphasis added), and
“encourage voluntary transfers of water and water rights,” id. § 109
(emphasis added)—especially transfers from agricultural areas, see Stats.
1986, ch. 918, § 1(a)-(d). Yet Metropolitan explicitly designed its wheeling
7
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rates to discourage “the largest agricultural-to-urban water transfer in
United States history.” In re Quantification Settlement Agreement Cases,
201 Cal. App. 4th 758, 788 (2011) (“QSA”). Thus, Metropolitan violated
the Wheeling Statutes, as the trial court rightly held, following San Luis
Coastal Unified School District v. City of Morro Bay, 81 Cal. App. 4th
1044 (2000), among other authorities. See 27-AA-7506-09.
Third, the Opinion errs in holding, as a matter of law, that because
State Water Project facilities are purportedly “available” for Metropolitan
to use for wheeling, Metropolitan properly allocates 100% of DWR’s
water-supply-delivery charges to Metropolitan’s transportation rates. See
Op. at 23. In fact, Metropolitan has no authority to use the State Water
Project for wheeling. And even if it could, DWR’s water-supply-delivery
charges are incurred to supply Metropolitan with water, not for wheeling.
Metropolitan certainly did not justify its allocation of 100% of DWR’s
water-supply-delivery charges to transportation. This Court seems to have
concluded otherwise based, in part, on a misunderstanding of the trial
court’s ruling. The Opinion repeatedly states that the trial court held that
“no part” of DWR’s water-supply-delivery charges may be included in
Metropolitan’s wheeling rates. Id.; see also id. at 2, 22. As Metropolitan
itself emphasized on appeal, however, the trial court “held only that it was
unreasonable to allocate all” of DWR’s water-supply-delivery charges to
Metropolitan’s transportation rates. AOB at 114 (emphasis in original)
8
1175742.01
(citing 27-AA-7516). The trial court was correct.
Fourth, if this Court does not affirm the trial court’s invalidation of
Metropolitan’s wheeling rates—which it should—it should remand for a
determination of the “reasonable credit” to which the Water Authority is
entitled “for any offsetting benefits for the use of the conveyance system.”
Wat. Code § 1811(c). As DWR Director David Kennedy found pursuant to
the Legislature’s express direction, the Water Authority generates hundreds
of millions of dollars in offsetting benefits—not only for Metropolitan, but
for the entire State of California—by paying for conservation efforts in the
Imperial Valley, which reduce demand on Metropolitan’s water supplies
imported from the Bay Delta. Metropolitan’s wheeling rates fail to give
any credit to the Water Authority for funding those vital conservation
efforts, and the trial court should address this essential issue on remand.
For these and other reasons explained below, the Water Authority
respectfully petitions for rehearing. At the very least, the Court should (1)
clarify that on remand the trial court must consider the “reasonable credit”
to which the Water Authority is entitled under Water Code Section 1811(c)
for funding the water conservation efforts that are the cornerstone of the
QSA; and (2) clarify footnote 16 of the Opinion, which Metropolitan has
misinterpreted as validating its Water Stewardship Rate.
9
1175742.01
II. ARGUMENT
Rehearing may be granted where the opinion misstates or omits a
material fact or issue or contains legal errors. Jon B. Eisenberg, Cal.
Practice Guide: Civil Appeals and Writs ¶¶ 12:16, 12:19 (2016). All of
those grounds for rehearing apply here.
A. The Opinion misstates and misapplies the standards of review.
The Court’s Opinion states: “Where, as here, a trial court’s review is
limited to examining the administrative record to determine if an agency’s
decision is supported by substantial evidence, the appellate court’s function
is identical to that of the superior court.” Op. at 20-21 (emphasis in
original) (citation and internal quotation marks omitted). But the Wheeling
Statutes mandate that “the court shall consider all relevant evidence.” Wat.
Code § 1813 (emphasis added). Contrary to this Court’s assertion that the
trial court’s review was limited to the administrative record, Op. at 20, the
trial court held that “all relevant evidence” is not so limited, and did not
confine its review to the administrative record. See 7-AA-1800-01.
Metropolitan did not appeal that ruling. See AOB.
Accordingly, it is now beyond dispute that, in addition to reviewing
the administrative record, the trial court properly reviewed extra-record
documentary evidence, heard live testimony, and evaluated the credibility
of witnesses in order to determine (among other things) whether
Metropolitan acted “in a reasonable manner consistent with the
10
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requirements of law to facilitate the voluntary sale, lease, or exchange of
water.” Wat. Code § 1813. That was not a question “where the facts
[were] undisputed,” but one where the facts were hotly disputed, which
further required “the drawing of inferences from the presented facts.”
Saathoff v. City of San Diego, 35 Cal. App. 4th 697, 701 (1995). This
Court, therefore, was required to “apply the substantial evidence test and
give deference to the inferences” drawn by the trial court. Id.
Although the Opinion relies heavily on Imperial Irrigation, that case
specifically identified the questions the trial court decided here—whether
Metropolitan “properly included specific costs in its wheeling rate
calculation or has adopted a rate that violates the statutory mandate to
facilitate wheeling”—as questions for the trial court. See 80 Cal. App. 4th
at 1436. Because the trial court here answered those questions based on
disputed facts, its findings are entitled to deference. See, e.g., Saathoff, 35
Cal. App. 4th at 701. This Court should have at least considered the trial
court’s finding that Metropolitan’s wheeling rates discourage wheeling,
because the Legislature itself has identified that as a crucial issue of public
policy. See Wat. Code § 1813; id. § 109; Stats. 1986, ch. 918, § 1.
Under Proposition 26, moreover, this Court was required to “review
the [trial] court’s factual findings under the substantial evidence standard.”
Schmeer v. Cty. of Los Angeles, 213 Cal. App. 4th 1310, 1316 (2013).
Courts of Appeal only “review the ruling de novo to the extent that the
11
1175742.01
[trial] court decided questions of law concerning the construction of
constitutional provisions and not turning on any disputed facts.” Id.
(emphasis added). On the other hand, this Court should not have deferred
to Metropolitan because under Proposition 26, like Proposition 218, “it is
not enough that the agency have substantial evidence to support its action.
That substantial evidence must itself be able to withstand independent
review.” Capistrano Taxpayers Ass’n, Inc. v. City of San Juan Capistrano,
235 Cal. App. 4th 1493, 1507 (2015). Yet this Court deferred to
Metropolitan while giving no deference to the trial court, even though the
trial court’s findings turned on disputed facts and involved credibility
determinations, which this Court should “not second-guess.” Lauderdale
Assocs. v. Dep’t of Health Servs., 67 Cal. App. 4th 117, 125 (1998).
The Opinion’s lack of deference to the trial court is also contrary to
California Farm Bureau Federation v. State Water Resources Control
Board, 51 Cal. 4th 421 (2011). In Farm Bureau, the California Supreme
Court directed the trial court to “make detailed findings” about whether the
costs at issue “were reasonably related to the fees assessed on the payors”
and “reasonable” in amount; “whether the statutory scheme and its
implementing regulations provide a fair, reasonable, and substantially
proportionate assessment of all costs”; and whether the costs of a water
project were allocated fairly based on the “beneficial interest” of those
charged. Id. at 441-46. This Court failed to afford sufficient deference to
12
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the trial court’s detailed findings about essentially identical issues. See id.
And even if, as this Court asserts, its “function is identical to that of
the superior court,” Op. at 21, this Court has not fulfilled that function as
defined by Section 1813. If the appellate and trial court functions are
identical, then this Court “shall consider all relevant evidence,” and “shall
give due consideration to the purposes and policies of [the Wheeling
Statutes].” Wat. Code § 1813. This Court has not done so, as explained
further below, so rehearing is required.
B. The Opinion omits and misstates material facts and issues
relating to Metropolitan’s allocation of State Water Project costs
and the setting of Metropolitan’s wheeling rates.
The Opinion omits and misstates material facts and issues regarding
Metropolitan’s State Water Project costs, and errs in overturning the trial
court’s ruling that Metropolitan’s allocation of those costs violates
Proposition 26, the Wheeling Statutes, Government Code Section
54999.7(a), and the common law. The Opinion also omits and misstates
material facts and issues relating to Metropolitan’s rates and rate-setting
process, and whether it “adopted a rate that violates the statutory mandate
to facilitate wheeling.” Imperial Irrigation, 80 Cal. App. 4th at 1436.
1. The Opinion omits and misstates material facts and issues
relating to Resolution 8520 and Morro Bay.
Metropolitan’s failure to “act in a reasonable manner consistent with
the requirements of law to facilitate the voluntary sale, lease, or exchange
13
1175742.01
of water,” Wat. Code § 1813, is clear from Metropolitan’s Resolution 8520.
Metropolitan relies on Resolution 8520 as its “written findings” required by
Section 1813. See 26-AA-7157:3-12. As the trial court rightly found,
however, Resolution 8520 contravenes the Wheeling Statutes, as
interpreted in Morro Bay—which the Opinion does not mention. See
Morro Bay, 81 Cal. App. 4th at 1050; 27-AA-7477-78, 7488-90, 7503-09.
The Opinion discusses Resolution 8520 briefly. See Op. at 25. Yet
the Opinion omits the aspects of Resolution 8520 that are most relevant to
whether Metropolitan complied with the constitutional and statutory
mandates to “act in a reasonable manner consistent with the requirements of
law to facilitate the voluntary sale, lease, or exchange of water,” Wat. Code
§ 1813, and “encourage voluntary transfers of water and water rights,” id. §
109—especially transfers from agricultural areas, see Stats. 1986, ch. 918,
2
§ 1(a)-(d); see also Cal. Const., art. X, § 6.
The core of Resolution 8520 is Metropolitan’s assertion that
“pursuant to Sections 1810 and 1812 of the Water Code, the use of
Metropolitan’s water conveyance system is to be made without injuring any
2
As Justice Siggins rightly notes in his concurrence, the California
Constitution provides that Metropolitan cannot charge its rates “except by
authority of and in the manner prescribed by law.” Cal. Const., art. X, § 6.
Accordingly, the statutory mandates for Metropolitan to “encourage
voluntary transfers of water and water rights,” Wat. Code § 109, and to “act
in a reasonable manner consistent with the requirements of law to facilitate
the voluntary sale, lease, or exchange of water,” id. § 1813, are also
constitutional mandates. See Cal. Const., art. X, § 6.
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legal user of water from that system, including financial injury.” 9-
AR2010-2447 (emphasis added); cf. Wat. Code § 1810(d) (providing that
the use of a water conveyance facility is to be made “without injuring any
legal user of water”). Based on Metropolitan’s erroneous assumption that
Section 1810(d) of the Wheeling Statutes allows Metropolitan to set a
wheeling rate to avoid any rate increase for non-wheelers, Metropolitan
went on to assert that including “unavoidable costs in the wheeling rate,”
including “costs attributable to Metropolitan’s supply,” is “necessary in
order to protect Metropolitan’s member agencies from financial injury.”
9-AR2010-2449 (emphases added). But that rationale is precisely what the
3
Court of Appeal rejected in Morro Bay. See 81 Cal. App. 4th at 1050.
The defendant in Morro Bay, just like Metropolitan, asserted that
“the rate increase it claims its other customers will have to bear if it loses
the [wheeler] as a customer” was an “injury” under Section 1810(d).
Morro Bay, 81 Cal. App. 4th at 1050. But the court rejected that assertion:
“we do not believe the loss of income from a customer is the sort of injury
to a legal user of water the Legislature had in mind.” Id. That conclusion
3
Note, moreover, that using Metropolitan’s half-empty Colorado River
Aqueduct to transport conserved Colorado River water does not “injure”
Metropolitan or its other member agencies, or “destabilize” Metropolitan’s
rates in any non-protectionist sense. On the contrary, this transfer saves
Metropolitan and its other member agencies hundreds of millions of
dollars, because Metropolitan would otherwise be required to purchase this
water from the Imperial Irrigation District (“IID”), as DWR’s Director
expressly found at the Legislature’s direction. See Section II.D, infra.
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is consistent with the legislative history, including Metropolitan’s own
unsuccessful effort to amend Section 1810(d) to prohibit rate increases for
non-wheelers. See RB at 71-72 n.7; 11-AR2010-3095.
Rather than focus on Resolution 8520’s fatal misinterpretation of
Section 1810(d), or the fundamental conflict between Resolution 8520 and
Morro Bay, the Opinion quotes Resolution 8520’s assertion that the
Wheeling Statutes define “fair compensation” to “include reasonable
charges for the use of the entire conveyance system.” Op. at 25 (internal
quotation marks omitted). But there is nothing in the Wheeling Statutes
about the “entire conveyance system.” The Wheeling Statutes require a
public agency to allow “the us
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Jul 11, 2024 |
CGC24615613
Matter on the Law & Motion calendar for Thursday, July 11, 2024, Line 15. PLAINTIFF PEOPLE CENTER, INC. D/B/A RIPPLING's Motion For Preliminary Injunction. Plaintiff People Center, Inc. d/b/a Rippling's motion for a preliminary injunction is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 1:30 p.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
A & A GENERAL BUILDING CONSTRUCTION INC., A VS. ARLENE S. TASIM ET AL
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 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 01/28/2021 633 Battery Street Clerk of the Court BY: YOLANDA TABO-RAMIREZ 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 and Plaintiff 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 REQUEST FOR 19 JUDICIAL NOTICE IN SUPPORT OF v. OPPOSITION TO METROPOLITAN 20 WATER DISTRICT OF SOUTHERN METROPOLITAN WATER DISTRICT OF CALIFORNIA’S DEMURRER AND 21 MOTION TO STRIKE; EXHIBITS 1-2 SOUTHERN CALIFORNIA; ALL 22 PERSONS INTERESTED IN THE Date: February 10, 2021 VALIDITY OF THE RATES ADOPTED Time: 9:15 a.m. 23 BY THE METROPOLITAN WATER Dept.: 304 DISTRICT OF SOUTHERN CALIFORNIA Judge: Hon. Anne-Christine Massullo 24 ON APRIL 8, 2014 TO BE EFFECTIVE JANUARY 1, 2015 AND JANUARY 1, Date Filed: May 30, 2014 25 2016; and DOES 1-10, Trial Date: Not Yet Set 26 Respondents and Defendants. 27 28 SAN DIEGO COUNTY WATER AUTHORITY’S REQUEST FOR JUDICIAL NOTICE Case No. CPF-14-514004 1638348 1 Petitioner and Plaintiff San Diego County Water Authority (“Water Authority”) hereby 2 requests that the Court take judicial notice of the publicly filed court documents identified below. 3 Exhibit 1 is a true and correct copy of the Water Authority’s Petition for Rehearing, filed 4 July 6, 2017, in the appeal of the 2010 and 2012 Cases between the Water Authority and 5 Metropolitan Water District of Southern California, Appeal No. A146901. 6 Exhibit 2 is a true and correct copy of the Water Authority’s Petition for Review, filed 7 July 31, 2017, seeking Supreme Court review of the appellate decision in the 2010 and 2012 8 Cases, Case No. S243500. 9 These documents and the existence of the arguments contained therein are a proper 10 subject of judicial notice, as the pleadings are “[r]ecords of court of . . . a[] court of this state.” 11 (Evid. Code, § 452, subd. (c); see also Tucker v. Pac. Bell Mobile Servs. (2012) 208 Cal.App.4th 12 201, 219 [“pleadings and declarations are records of a court of this state”].) In addition, these 13 documents and the existence of the arguments contained therein are suitable for judicial notice as 14 facts “not reasonably subject to dispute” and “capable of immediate and accurate determination 15 by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) These 16 documents are publicly filed on the dockets of the First District Court of Appeal and the 17 California Supreme Court, respectively. Their filing and contents are beyond reasonable dispute. 18 In the context of the Water Authority’s opposition briefing, judicial notice is appropriate 19 for the limited purpose for which the Water Authority has requested it. (See Opp’n at p. 11.) 20 Courts routinely take judicial notice of court records evidencing the history and posture of the 21 case before them, including court records from related litigation. (See, e.g., Shine v. Williams- 22 Sonoma, Inc. (2018) 23 Cal.App.5th 1070, 1076–77; People v. Putney (2016) 1 Cal.App.5th 23 1058, 1063 fn. 4.) This Court should do so here as well. 24 /// 25 /// 26 /// 27 /// 28 /// 2 SAN DIEGO COUNTY WATER AUTHORITY’S REQUEST FOR JUDICIAL NOTICE Case No. CPF-14-514004 1638348 1 2 Dated: January 28, 2021 KEKER, VAN NEST & PETERS LLP 3 By: 4 NICHOLAS S. GOLDBERG 5 Attorneys for Petitioner and Plaintiff 6 SAN DIEGO COUNTY WATER AUTHORITY 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 SAN DIEGO COUNTY WATER AUTHORITY’S REQUEST FOR JUDICIAL NOTICE Case No. CPF-14-514004 1638348 EXHIBIT 1 311403 Nos. A146901 and A148266 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION THREE SAN DIEGO COUNTY WATER AUTHORITY, Respondent and Cross-Appellant, v. METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, Appellant and Cross-Respondent. Appeal From Judgments And Peremptory Writs of Mandate After Court Trials Superior Court for the County of San Francisco Nos. CFP-10-510830 and CFP-12-512466 The Honorable Richard A. Kramer and Curtis E.A. Karnow SAN DIEGO COUNTY WATER AUTHORITY’S PETITION FOR REHEARING KEKER, VAN NEST & PETERS LLP SAN DIEGO COUNTY *JOHN W. KEKER - #49092 WATER AUTHORITY Received jkeker@keker.com MARK J. HATTAM - #173667 DANIEL PURCELL - #191424 (General Counsel) dpurcell@keker.com mhattam@sdcwa.org DAN JACKSON - #216091 4677 Overland Avenue by djackson@keker.com San Diego, CA 92123 WARREN A. BRAUNIG - #243884 Telephone: (858) 522-6791 First wbraunig@keker.com Facsimile: (858) 522-6566 District 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188 Court Attorneys for Respondent and Cross-Appellant of SAN DIEGO COUNTY WATER AUTHORITY Appeal 1 1175742.01 TABLE OF CONTENTS Page I. INTRODUCTION ................................................................................ 5 II. ARGUMENT ....................................................................................... 10 A. The Opinion misstates and misapplies the standards of review. ....................................................................................... 10 B. The Opinion omits and misstates material facts and issues relating to Metropolitan’s allocation of State Water Project costs and the setting of Metropolitan’s wheeling rates. ............ 13 1. The Opinion omits and misstates material facts and issues relating to Resolution 8520 and Morro Bay. ....... 13 2. The Opinion omits and misstates material facts and issues relating to the RMI and Raftelis reports and Palmdale. ....................................................................... 18 3. The Opinion omits and misstates material facts and issues relating to wheeling from Placer County in 2009. ............................................................................... 26 C. The Opinion further misstates material facts and issues relating to Proposition 26. ......................................................... 31 D. The Court should remand for the trial court to determine the Water Authority’s “reasonable credit” under Section 1811(c). 37 E. The Court should clarify that the Opinion does not uphold or validate the Water Stewardship Rate. ....................................... 40 F. The Water Authority objects to the Opinion’s extensive use of materials not in the record on appeal or before the trial court. . 42 III. CONCLUSION .................................................................................... 43 2 1175742.01 TABLE OF AUTHORITIES Page(s) State Cases Beasley v. Wells Fargo Bank 235 Cal. App. 3d 1383 (1991) ........................................................... 25, 26 Cal. Farm Bureau Fed’n v. State Water Res. Control Bd. 51 Cal. 4th 421 (2011) ................................................................. 12, 13, 26 Capistrano Taxpayers Ass’n, Inc. v. City of San Juan Capistrano 235 Cal. App. 4th 1493 (2015) .............................................. 12, 33, 34, 35 Gonzales v. City of Santa Ana 12 Cal. App. 4th 1335 (1993) .................................................................. 26 In re Marriage of Eaddy 144 Cal. App. 4th 1202 (2006) ................................................................ 43 In re Quantification Settlement Agreement Cases 201 Cal. App. 4th 758 (2011) .................................................. 8, 21, 22, 39 Jacks v. City of Santa Barbara — Cal. 4th —, No. S225589, 2017 WL 2805638 (June 29, 2017) ........... 7 Lauderdale Assocs. v. Dep’t of Health Servs. 67 Cal. App. 4th 117 (1998) .............................................................. 12, 24 Metropolitan Water Dist. of S. Cal. v. Imperial Irrigation Dist. 80 Cal. App. 4th 1403 (2000) ............................................................ passim Newhall Cty. Water Dist. v. Castaic Lake Water Agency 243 Cal. App. 4th 1430 (2016) ........................................ 18, 33, 34, 35, 36 Palmdale v. Palmdale Water Dist. 198 Cal. App. 4th 926 (2011) .................................................. 7, 18, 22, 25 People v. Alvarez 27 Cal. 4th 1161 (2002) ........................................................................... 42 Saathoff v. City of San Diego 35 Cal. App. 4th 697 (1995) .................................................. 11, 23, 25, 26 San Luis Coastal Unified Sch. Dist. v. City of Morro Bay 81 Cal. App. 4th 1044 (2000) ............................................................ passim Schmeer v. Cty. of Los Angeles 213 Cal. App. 4th 1310 (2013) .......................................................... passim 3 1175742.01 Vons Cos., Inc. v. Seabest Foods, Inc. 14 Cal. 4th 434 (1996) ............................................................................. 42 Constitutional Provisions Cal. Const., art. X, § 6 ..................................................................... 14, 19, 22 Cal. Const. art. 13C, § 1 ...................................................... 32, 33, 35, 36, 37 Statutes 1997 Cal. Legis. Serv. Ch. 874, S.B. 1082 (Oct. 12, 1997) ........................ 17 Cal. Gov’t Code § 54999.7 ........................................................ 13, 30, 41, 42 Cal. Wat. Code § 109 .................................................................................. 14 Cal. Wat. Code § 1810 .................................................................... 14, 15, 16 Cal. Wat. Code § 1811 ................................................................ 9, 38, 40, 44 Cal. Wat. Code § 1812 .......................................................................... 14, 17 Cal. Wat. Code § 1812.5 ............................................................................. 17 Cal. Wat. Code § 1813 .......................................................................... passim Court Rules Cal. Rule of Court 8.268.......................................................................... 5, 43 4 1175742.01 I. INTRODUCTION Pursuant to California Rule of Court 8.268, the San Diego County Water Authority (“Water Authority”) respectfully petitions this Court for rehearing in connection with this Court’s June 21, 2017 Opinion in this case between the Water Authority and the Metropolitan Water District of Southern California (“Metropolitan”). The Water Authority respectfully draws the Court’s attention to four fundamental errors in the Opinion, and several related omissions and misstatements. First, the Opinion does not afford sufficient deference to the trial court’s factual findings, does not “consider all relevant evidence,” and does not “give due consideration to the purposes and policies” of the Wheeling Statutes. Wat. Code § 1813. The Opinion relies on Metropolitan v. Imperial Irrigation District, 80 Cal. App. 4th 1403 (2000) (“Imperial Irrigation”), but that case was remanded for precisely the findings the trial court made here, including as to whether Metropolitan’s wheeling rates discourage wheeling. See id. at 1436. As Justice Siggins correctly emphasizes in his concurrence, the Wheeling Statutes “make clear that ‘any determination made under this article’ can be the subject of a judicial challenge in which ‘the court shall consider all relevant evidence, and the court shall give due consideration to the purposes and policies of this article.’” Op., Siggins, J., concurring (quoting Wat. Code § 1813). That is what the trial court did in finding, among other things, that Metropolitan’s 5 1175742.01 wheeling rates discourage wheeling. Yet the Opinion does not address that finding or the substantial evidence on which it was based. Second, the Opinion erroneously holds, as a matter of law, that Metropolitan properly allocates to its own transportation rates the State Water Project costs identified by the California Department of Water Resources (“DWR”) as the transportation component of DWR’s charges for providing a water supply to Metropolitan (“DWR’s water-supply-delivery 1 charges”). As the trial court correctly found, those are costs of supplying water to Metropolitan, not Metropolitan’s costs of transportation or wheeling. Indeed, Metropolitan itself previously categorized DWR’s water-supply-delivery charges as Metropolitan’s supply costs, consistent with industry practice, including that of other State Water Project contractors. As the trial court rightly found, moreover, Metropolitan’s deviation from this established practice was not, as this Court’s Opinion incorrectly assumes, driven by Metropolitan’s need to recover its State Water Project costs, but instead was explicitly based on Metropolitan’s unlawful decision to set a wheeling rate that would dissuade wheelers from purchasing water from sources other than Metropolitan. See, e.g., 27-AA- 7506-09; 5-AR2010-1234-35, 1244-54_01. 1 The Opinion states that DWR “bills for transportation costs separately from water supply.” Op. at 22. But transportation is a component of DWR’s “CHARGES FOR A WATER SUPPLY.” 18-AA-5037. Citations here follow the format of the parties’ appellate briefs. See AOB at 23 n.1. 6 1175742.01 As the court held in Palmdale v. Palmdale Water District, 198 Cal. App. 4th 926 (2011), the law prohibits public agencies from allocating costs in this manner to preserve “rate stability.” Id. at 937-38. Indeed, “rate stability,” in this context, is a euphemism for protectionism, which violates the constitutional, statutory, and common-law requirement that the costs of government services must be allocated to those who actually cause those costs to be incurred (“cost causation”). As the California Supreme Court stated on June 29, 2017—after this Court issued its Opinion—costs are properly allocated “to those who generate the costs,” whereas if a “local governmental agency were allowed to impose charges in excess of the special benefit received by the payor or the cost associated with the payor’s activities, the imposition of fees would become a vehicle for generating revenue independent of the purpose of the fees,” in violation of Proposition 26 and its predecessors. Jacks v. City of Santa Barbara, — Cal. 4th —, No. S225589, 2017 WL 2805638, at *5 (June 29, 2017). Further, the Wheeling Statutes not only require Metropolitan to set its wheeling rates based on cost causation, but also to “act in a reasonable manner consistent with the requirements of law to facilitate the voluntary sale, lease, or exchange of water,” Wat. Code § 1813 (emphasis added), and “encourage voluntary transfers of water and water rights,” id. § 109 (emphasis added)—especially transfers from agricultural areas, see Stats. 1986, ch. 918, § 1(a)-(d). Yet Metropolitan explicitly designed its wheeling 7 1175742.01 rates to discourage “the largest agricultural-to-urban water transfer in United States history.” In re Quantification Settlement Agreement Cases, 201 Cal. App. 4th 758, 788 (2011) (“QSA”). Thus, Metropolitan violated the Wheeling Statutes, as the trial court rightly held, following San Luis Coastal Unified School District v. City of Morro Bay, 81 Cal. App. 4th 1044 (2000), among other authorities. See 27-AA-7506-09. Third, the Opinion errs in holding, as a matter of law, that because State Water Project facilities are purportedly “available” for Metropolitan to use for wheeling, Metropolitan properly allocates 100% of DWR’s water-supply-delivery charges to Metropolitan’s transportation rates. See Op. at 23. In fact, Metropolitan has no authority to use the State Water Project for wheeling. And even if it could, DWR’s water-supply-delivery charges are incurred to supply Metropolitan with water, not for wheeling. Metropolitan certainly did not justify its allocation of 100% of DWR’s water-supply-delivery charges to transportation. This Court seems to have concluded otherwise based, in part, on a misunderstanding of the trial court’s ruling. The Opinion repeatedly states that the trial court held that “no part” of DWR’s water-supply-delivery charges may be included in Metropolitan’s wheeling rates. Id.; see also id. at 2, 22. As Metropolitan itself emphasized on appeal, however, the trial court “held only that it was unreasonable to allocate all” of DWR’s water-supply-delivery charges to Metropolitan’s transportation rates. AOB at 114 (emphasis in original) 8 1175742.01 (citing 27-AA-7516). The trial court was correct. Fourth, if this Court does not affirm the trial court’s invalidation of Metropolitan’s wheeling rates—which it should—it should remand for a determination of the “reasonable credit” to which the Water Authority is entitled “for any offsetting benefits for the use of the conveyance system.” Wat. Code § 1811(c). As DWR Director David Kennedy found pursuant to the Legislature’s express direction, the Water Authority generates hundreds of millions of dollars in offsetting benefits—not only for Metropolitan, but for the entire State of California—by paying for conservation efforts in the Imperial Valley, which reduce demand on Metropolitan’s water supplies imported from the Bay Delta. Metropolitan’s wheeling rates fail to give any credit to the Water Authority for funding those vital conservation efforts, and the trial court should address this essential issue on remand. For these and other reasons explained below, the Water Authority respectfully petitions for rehearing. At the very least, the Court should (1) clarify that on remand the trial court must consider the “reasonable credit” to which the Water Authority is entitled under Water Code Section 1811(c) for funding the water conservation efforts that are the cornerstone of the QSA; and (2) clarify footnote 16 of the Opinion, which Metropolitan has misinterpreted as validating its Water Stewardship Rate. 9 1175742.01 II. ARGUMENT Rehearing may be granted where the opinion misstates or omits a material fact or issue or contains legal errors. Jon B. Eisenberg, Cal. Practice Guide: Civil Appeals and Writs ¶¶ 12:16, 12:19 (2016). All of those grounds for rehearing apply here. A. The Opinion misstates and misapplies the standards of review. The Court’s Opinion states: “Where, as here, a trial court’s review is limited to examining the administrative record to determine if an agency’s decision is supported by substantial evidence, the appellate court’s function is identical to that of the superior court.” Op. at 20-21 (emphasis in original) (citation and internal quotation marks omitted). But the Wheeling Statutes mandate that “the court shall consider all relevant evidence.” Wat. Code § 1813 (emphasis added). Contrary to this Court’s assertion that the trial court’s review was limited to the administrative record, Op. at 20, the trial court held that “all relevant evidence” is not so limited, and did not confine its review to the administrative record. See 7-AA-1800-01. Metropolitan did not appeal that ruling. See AOB. Accordingly, it is now beyond dispute that, in addition to reviewing the administrative record, the trial court properly reviewed extra-record documentary evidence, heard live testimony, and evaluated the credibility of witnesses in order to determine (among other things) whether Metropolitan acted “in a reasonable manner consistent with the 10 1175742.01 requirements of law to facilitate the voluntary sale, lease, or exchange of water.” Wat. Code § 1813. That was not a question “where the facts [were] undisputed,” but one where the facts were hotly disputed, which further required “the drawing of inferences from the presented facts.” Saathoff v. City of San Diego, 35 Cal. App. 4th 697, 701 (1995). This Court, therefore, was required to “apply the substantial evidence test and give deference to the inferences” drawn by the trial court. Id. Although the Opinion relies heavily on Imperial Irrigation, that case specifically identified the questions the trial court decided here—whether Metropolitan “properly included specific costs in its wheeling rate calculation or has adopted a rate that violates the statutory mandate to facilitate wheeling”—as questions for the trial court. See 80 Cal. App. 4th at 1436. Because the trial court here answered those questions based on disputed facts, its findings are entitled to deference. See, e.g., Saathoff, 35 Cal. App. 4th at 701. This Court should have at least considered the trial court’s finding that Metropolitan’s wheeling rates discourage wheeling, because the Legislature itself has identified that as a crucial issue of public policy. See Wat. Code § 1813; id. § 109; Stats. 1986, ch. 918, § 1. Under Proposition 26, moreover, this Court was required to “review the [trial] court’s factual findings under the substantial evidence standard.” Schmeer v. Cty. of Los Angeles, 213 Cal. App. 4th 1310, 1316 (2013). Courts of Appeal only “review the ruling de novo to the extent that the 11 1175742.01 [trial] court decided questions of law concerning the construction of constitutional provisions and not turning on any disputed facts.” Id. (emphasis added). On the other hand, this Court should not have deferred to Metropolitan because under Proposition 26, like Proposition 218, “it is not enough that the agency have substantial evidence to support its action. That substantial evidence must itself be able to withstand independent review.” Capistrano Taxpayers Ass’n, Inc. v. City of San Juan Capistrano, 235 Cal. App. 4th 1493, 1507 (2015). Yet this Court deferred to Metropolitan while giving no deference to the trial court, even though the trial court’s findings turned on disputed facts and involved credibility determinations, which this Court should “not second-guess.” Lauderdale Assocs. v. Dep’t of Health Servs., 67 Cal. App. 4th 117, 125 (1998). The Opinion’s lack of deference to the trial court is also contrary to California Farm Bureau Federation v. State Water Resources Control Board, 51 Cal. 4th 421 (2011). In Farm Bureau, the California Supreme Court directed the trial court to “make detailed findings” about whether the costs at issue “were reasonably related to the fees assessed on the payors” and “reasonable” in amount; “whether the statutory scheme and its implementing regulations provide a fair, reasonable, and substantially proportionate assessment of all costs”; and whether the costs of a water project were allocated fairly based on the “beneficial interest” of those charged. Id. at 441-46. This Court failed to afford sufficient deference to 12 1175742.01 the trial court’s detailed findings about essentially identical issues. See id. And even if, as this Court asserts, its “function is identical to that of the superior court,” Op. at 21, this Court has not fulfilled that function as defined by Section 1813. If the appellate and trial court functions are identical, then this Court “shall consider all relevant evidence,” and “shall give due consideration to the purposes and policies of [the Wheeling Statutes].” Wat. Code § 1813. This Court has not done so, as explained further below, so rehearing is required. B. The Opinion omits and misstates material facts and issues relating to Metropolitan’s allocation of State Water Project costs and the setting of Metropolitan’s wheeling rates. The Opinion omits and misstates material facts and issues regarding Metropolitan’s State Water Project costs, and errs in overturning the trial court’s ruling that Metropolitan’s allocation of those costs violates Proposition 26, the Wheeling Statutes, Government Code Section 54999.7(a), and the common law. The Opinion also omits and misstates material facts and issues relating to Metropolitan’s rates and rate-setting process, and whether it “adopted a rate that violates the statutory mandate to facilitate wheeling.” Imperial Irrigation, 80 Cal. App. 4th at 1436. 1. The Opinion omits and misstates material facts and issues relating to Resolution 8520 and Morro Bay. Metropolitan’s failure to “act in a reasonable manner consistent with the requirements of law to facilitate the voluntary sale, lease, or exchange 13 1175742.01 of water,” Wat. Code § 1813, is clear from Metropolitan’s Resolution 8520. Metropolitan relies on Resolution 8520 as its “written findings” required by Section 1813. See 26-AA-7157:3-12. As the trial court rightly found, however, Resolution 8520 contravenes the Wheeling Statutes, as interpreted in Morro Bay—which the Opinion does not mention. See Morro Bay, 81 Cal. App. 4th at 1050; 27-AA-7477-78, 7488-90, 7503-09. The Opinion discusses Resolution 8520 briefly. See Op. at 25. Yet the Opinion omits the aspects of Resolution 8520 that are most relevant to whether Metropolitan complied with the constitutional and statutory mandates to “act in a reasonable manner consistent with the requirements of law to facilitate the voluntary sale, lease, or exchange of water,” Wat. Code § 1813, and “encourage voluntary transfers of water and water rights,” id. § 109—especially transfers from agricultural areas, see Stats. 1986, ch. 918, 2 § 1(a)-(d); see also Cal. Const., art. X, § 6. The core of Resolution 8520 is Metropolitan’s assertion that “pursuant to Sections 1810 and 1812 of the Water Code, the use of Metropolitan’s water conveyance system is to be made without injuring any 2 As Justice Siggins rightly notes in his concurrence, the California Constitution provides that Metropolitan cannot charge its rates “except by authority of and in the manner prescribed by law.” Cal. Const., art. X, § 6. Accordingly, the statutory mandates for Metropolitan to “encourage voluntary transfers of water and water rights,” Wat. Code § 109, and to “act in a reasonable manner consistent with the requirements of law to facilitate the voluntary sale, lease, or exchange of water,” id. § 1813, are also constitutional mandates. See Cal. Const., art. X, § 6. 14 1175742.01 legal user of water from that system, including financial injury.” 9- AR2010-2447 (emphasis added); cf. Wat. Code § 1810(d) (providing that the use of a water conveyance facility is to be made “without injuring any legal user of water”). Based on Metropolitan’s erroneous assumption that Section 1810(d) of the Wheeling Statutes allows Metropolitan to set a wheeling rate to avoid any rate increase for non-wheelers, Metropolitan went on to assert that including “unavoidable costs in the wheeling rate,” including “costs attributable to Metropolitan’s supply,” is “necessary in order to protect Metropolitan’s member agencies from financial injury.” 9-AR2010-2449 (emphases added). But that rationale is precisely what the 3 Court of Appeal rejected in Morro Bay. See 81 Cal. App. 4th at 1050. The defendant in Morro Bay, just like Metropolitan, asserted that “the rate increase it claims its other customers will have to bear if it loses the [wheeler] as a customer” was an “injury” under Section 1810(d). Morro Bay, 81 Cal. App. 4th at 1050. But the court rejected that assertion: “we do not believe the loss of income from a customer is the sort of injury to a legal user of water the Legislature had in mind.” Id. That conclusion 3 Note, moreover, that using Metropolitan’s half-empty Colorado River Aqueduct to transport conserved Colorado River water does not “injure” Metropolitan or its other member agencies, or “destabilize” Metropolitan’s rates in any non-protectionist sense. On the contrary, this transfer saves Metropolitan and its other member agencies hundreds of millions of dollars, because Metropolitan would otherwise be required to purchase this water from the Imperial Irrigation District (“IID”), as DWR’s Director expressly found at the Legislature’s direction. See Section II.D, infra. 15 1175742.01 is consistent with the legislative history, including Metropolitan’s own unsuccessful effort to amend Section 1810(d) to prohibit rate increases for non-wheelers. See RB at 71-72 n.7; 11-AR2010-3095. Rather than focus on Resolution 8520’s fatal misinterpretation of Section 1810(d), or the fundamental conflict between Resolution 8520 and Morro Bay, the Opinion quotes Resolution 8520’s assertion that the Wheeling Statutes define “fair compensation” to “include reasonable charges for the use of the entire conveyance system.” Op. at 25 (internal quotation marks omitted). But there is nothing in the Wheeling Statutes about the “entire conveyance system.” The Wheeling Statutes require a public agency to allow “the us