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1 KEKER, VAN NEST & PETERS LLP
JOHN W. KEKER - # 49092
2 jkeker@keker.com
DAN JACKSON - # 216091 ELECTRONICALLY
3 djackson@keker.com
WARREN A. BRAUNIG - # 243884 F I L E D
Superior Court of California,
4 wbraunig@keker.com County of San Francisco
NICHOLAS S. GOLDBERG - # 273614
5 ngoldberg@keker.com 04/04/2022
633 Battery Street Clerk of the Court
BY: RONNIE OTERO
6 San Francisco, CA 94111-1809 Deputy Clerk
Telephone: (415) 391-5400
7 Facsimile: (415) 397-7188
8 MARK J. HATTAM - # 173667
mhattam@sdcwa.org
9 General Counsel
SAN DIEGO COUNTY WATER AUTHORITY
10 4677 Overland Avenue
San Diego, CA 92123-1233
11 Telephone: (858) 522-6791
Facsimile: (858) 522-6566
12
Attorneys for Petitioner, Plaintiff, and Cross-Defendant EXEMPT FROM FILING FEES
13 SAN DIEGO COUNTY WATER AUTHORITY [GOVERNMENT CODE § 6103]
14
15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 IN AND FOR THE COUNTY OF SAN FRANCISCO
17
SAN DIEGO COUNTY WATER Lead Case No. CPF-14-514004
18 AUTHORITY,
Consolidated with Case Nos. CPF-16-515282
19 Petitioner, Plaintiff and Cross- & CPF-18-516389
Defendant,
20 SAN DIEGO COUNTY WATER
v. AUTHORITY’S RESPONSE TO
21 METROPOLITAN WATER DISTRICT’S
METROPOLITAN WATER DISTRICT OF PURPORTED “ADDITIONAL FACTS” IN
22 SOUTHERN CALIFORNIA; ALL THE 2016 ACTION
PERSONS INTERESTED IN THE
23 VALIDITY OF THE RATES ADOPTED Date: April 13, 2022
BY THE METROPOLITAN WATER Time: 2:00 p.m.
24 DISTRICT OF SOUTHERN CALIFORNIA Dept.: 306
ON APRIL 8, 2014 TO BE EFFECTIVE Judge: Hon. Anne-Christine Massullo
25 JANUARY 1, 2015 AND JANUARY 1,
2016; and DOES 1-10, Date Filed: May 30, 2014
26
Respondents, Defendants and Trial Date: May 16–27, 2022
27 Cross-Complainant.
28
SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL
FACTS” IN THE 2016 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1845437
1 TABLE OF CONTENTS
2 Page
3 The Water Authority’s Undisputed Material Facts Warranting Summary
Adjudication ...........................................................................................................3
4
A. Issue 1 (see Memorandum of Points and Authorities § III.A) .................................3
5
B. Issues 2–15 (see Memorandum of Points and Authorities § III.B)..........................6
6
C. Issues 16–25 (see Memorandum of Points and Authorities § III.C)......................49
7
D. Issues 26–27 (see Memorandum of Points and Aut78horities § III.D) .................58
8
E. Issue 28 (see Memorandum of Points and Authorities § III.E) .............................61
9
F. Issue 29 (see Memorandum of Points and Authorities § III.E) .............................62
10
G. Issues 30–31 (see Memorandum of Points and Authorities § III.F) ......................63
11
H. Issues 32–33 (see Memorandum of Points and Authorities § III.F) ......................74
12
I. Issues 34–35 (see Memorandum of Points and Authorities § III.F) ......................76
13
Metropolitan’s Additional Material Facts .....................................................................79
14
A. Issue 1 ....................................................................................................................79
15
B. Issues 2–15 .............................................................................................................98
16
C. Issues 16–25 .........................................................................................................103
17
D. Issues 26–27 .........................................................................................................105
18
E. Issue 28 ................................................................................................................106
19
F. Issue 29 ................................................................................................................106
20
G. Issues 30–31 .........................................................................................................107
21
H. Issues 32–33 .........................................................................................................107
22
I. Issues 34–35 .........................................................................................................108
23
24
25
26
27
28
2
SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL
FACTS” IN THE 2016 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1845437
1 The Water Authority hereby submits this response to the purported “additional material
2 facts” set forth in Metropolitan’s Opposition to the Water Authority’s Separate Statement.1 Of
3 the 40 additional material facts set forth in Metropolitan’s Opposition to the Water Authority’s
4 Separate Statement (and then incorporated by refence in connection with each issue), the first 39
5 are identical to the purported facts that Metropolitan provided in its February 22, 2022, Separate
6 Statement of Undisputed Material Facts in Support of its Motion for Summary Adjudication. As
7 such, the Water Authority’s responses herein to those 39 “additional material facts” are the same
8 as in the Water Authority’s March 21, 2022, Separate Statement in Opposition to Metropolitan’s
9 Motion for Summary Adjudication, previously filed with this Court. The Water Authority also
10 responds herein to Metropolitan’s new 40th fact.
11 For the sake of clarity and to provide the Court with a complete Separate Statement in a
12 single document, the Water Authority provides below: (1) the Water Authority’s Undisputed
13 Material Facts and Metropolitan’s Responses (pages 3–78), followed by (2) Metropolitan’s
14 purported additional material facts and the Water Authority’s responses (pages 79–108).
15 The Water Authority’s Undisputed Material Facts Warranting Summary Adjudication
16 A. Issue 1 (see Memorandum of Points and Authorities § III.A)
17 Issue 1: Metropolitan’s first cause of action in its 2016 cross-complaint, for declaratory relief
regarding the Water Stewardship Rate, is barred by issue preclusion.
18
19 The Water Authority’s undisputed Metropolitan’s response and supporting
material facts and supporting evidence:
20 evidence:
On April 24, 2014, this Court issued its Undisputed that the Court issued a statement
21 1. “Statement of Decision on Rate Setting of decision.
Challenges” in CPF-10-510830 and Disputed that the statement of decision in
22 the 2010/2012 Actions has preclusive effect
CPF-12-512466 (the “prior cases”). (Ex.
1.) on the issues identified in the Water
23 Authority’s motion. As explained in
Metropolitan’s opposition brief, the Water
24 Authority bears the burden on issue
preclusion, but has failed to analyze the
25 elements for preclusion in the motion. See
26 1
On reply, it is appropriate for a party to respond to an opposing party’s additional facts, but not
27 in support of its own undisputed material facts and supporting evidence. (See Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 249; Cal. Prac. Guide Civ. Pro. Before Trial 10:220.5-
28 6.)
3
SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL
FACTS” IN THE 2016 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1845437
1 Hong Sang Mkt., Inc. v. Peng, 20 Cal. App.
5th 474, 489 (2018) (“A party who asserts
2 claim or issue preclusion as a bar to further
litigation bears the burden of proving that
3 the requirements of the doctrine are
satisfied.” (citing Vella v. Hudgins, 20 Cal.
4 3d 251, 257 (1977))). Here, multiple
elements of preclusion, including the
5 identical issues element, are not met for the
reasons stated in Metropolitan’s brief.
6
In addition, a trial court ruling lacks
7 preclusive effect if properly appealed and
the Court of Appeal does not embrace the
8 grounds of the appeal. See Samara v. Matar,
5 Cal. 5th 322, 334 (2018) (“we now
9 conclude that a ground reached by the trial
10 court and properly challenged on appeal, but
not embraced by the appellate court’s
11 decision, should not affect the judgment’s
preclusive effect.”).
12 On August 28, 2015, this Court issued its Undisputed that the Court issued a statement
2. second “Statement of Decision” in the of decision.
13
prior cases. (Ex. 2.) Disputed that the statement of decision in
14 the 2010/2012 Actions has preclusive effect
on the issues identified in the Water
15 Authority’s motion. As explained in
Metropolitan’s opposition brief, the Water
16 Authority bears the burden on issue
preclusion, but has failed to analyze the
17 elements for preclusion in the motion. See
Hong Sang Mkt., Inc. v. Peng, 20 Cal. App.
18 5th 474, 489 (2018) (“A party who asserts
claim or issue preclusion as a bar to further
19 litigation bears the burden of proving that
the requirements of the doctrine are
20 satisfied.” (citing Vella v. Hudgins, 20 Cal.
3d 251, 257 (1977))). Here, multiple
21 elements of preclusion, including the
identical issues element, are not met for the
22 reasons stated in Metropolitan’s brief.
In addition, a trial court ruling lacks
23 preclusive effect if properly appealed and
24 the Court of Appeal does not embrace the
grounds of the appeal. See Samara v. Matar,
25 5 Cal. 5th 322, 334 (2018) (“we now
conclude that a ground reached by the trial
26 court and properly challenged on appeal, but
not embraced by the appellate court’s
27 decision, should not affect the judgment’s
28 preclusive effect.”).
4
SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL
FACTS” IN THE 2016 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1845437
1 The California Court of Appeal, First Undisputed.
3. District, Division 3, issued its decision in
2 San Diego County Water Authority v.
3 Metropolitan Water Dist. of Southern
California (2017) 12 Cal.App.5th 1124
4 (SDCWA I), as modified on denial of
rehearing on July 18, 2017. (Ex. 5.)
5 On remand from SDCWA I, this Court Undisputed.
4. issued its Judgment in the prior cases on
6
or about August 13, 2020. (Ex. 6.)
7 On or about August 14, 2020, this Court Undisputed.
5. issued its Peremptory Writ of Mandate in
8 the prior cases. (Ex. 7.)
On September 21, 2021, the California Undisputed.
9 6. Court of Appeal, First District, Division
10 3, affirmed this Court’s Judgment and
Peremptory Writ of Mandate in San
11 Diego County Water Authority v.
Metropolitan Water Dist. of Southern
12 California (Cal. Ct. App., Sept. 21,
2021, No. A161144) 2021 WL 4272331
13 (SDCWA II). (Ex. 8.)
14 The Court of Appeal stated (in SDCWA Undisputed that the Court of Appeal
7. II) that its prior determination (in decision in SDCWA II includes the quoted
15 SDCWA I) regarding Metropolitan’s language.
Water Stewardship Rate “concerned a Disputed that the Court of Appeal’s
16 particular category of costs (‘water language has bearing on any issue other
stewardship rate’) which did not vary than the Water Stewardship Rate. Further
17
from year to year”; that “there was no disputed that the Water Stewardship Rate
18 need nor did we intend to limit our presents a live controversy in these cases.
determination to any particular rate Metropolitan has paid all amounts for its
19 year.” (Ex. 8 at p. *5.) prior inclusion of the Water Stewardship
Rate in its transportation rates for the years
20 at issue. The parties’ corresponding claims
and the Water Authority’s motion are moot.
21
The Court of Appeal stated (in SDCWA Undisputed that the Court of Appeal
8. II): “That Metropolitan apparently decision in SDCWA II includes the quoted
22
believes that in some future rate year it language.
23 can recover a water stewardship rate as a Disputed that the Court of Appeal’s
cost subcomponent of its transportation language has bearing on any issue other
24 costs in its wheeling rate or the than the Water Stewardship Rate. Further
25 transportation rates charged under the disputed that the Water Stewardship Rate
exchange agreement, thereby presents a live controversy in these cases.
26 contravening our prior opinion, supports Metropolitan has paid all amounts for its
the trial court’s continuing jurisdiction to prior inclusion of the Water Stewardship
27 assure compliance with its judgment.” Rate in its transportation rates for the years
(Ex. 8 at p. *6.) at issue. The parties’ corresponding claims
28
5
SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL
FACTS” IN THE 2016 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1845437
1 and the Water Authority’s motion are moot.
2 B. Issues 2–15 (see Memorandum of Points and Authorities § III.B)
3
Issue 2: Metropolitan has an enforceable duty under the Wheeling Statutes and the
4 Exchange Agreement to charge no more than “fair compensation,” which is defined as “including
reasonable credit for any offsetting benefits for the use of the conveyance system.” (Wat. Code, §
5 2
1811, subd. (c).)
6 The Water Authority’s undisputed Metropolitan’s response and supporting
7 material facts and supporting evidence:
evidence:
8 Paragraph 5.2 of the 2003 Amended and Undisputed.
9. Restated Exchange Agreement states that
9 “the Price shall be equal to the charge or
charges set by Metropolitan’s Board of
10
Directors pursuant to applicable law and
11 regulation and generally applicable to
the conveyance of water by Metropolitan
12 on behalf of its member agencies.” (Ex.
3, ¶ 5.2.)
13 In SDCWA I, the Court of Appeal stated: Disputed.
10. “A water agency’s payments to its
14 The Water Authority has omitted key
members to encourage water language from the Court of Appeal decision
15 conservation is outside the scope of in SDCWA I in order to create the
recoverable costs contemplated by the impression that the decision stands for a
16 wheeling statute,” and therefore, different proposition than the ones stated in
Metropolitan’s “water stewardship rate the decision. The omitted text for instance,
17 used to fund conservation programs” is includes the Wheeling Statutes’ requirement
18 not “recoverable as ‘fair compensation’ that there must be “unused capacity” in the
for use of the conveyance system.” (Ex. conveyance system in order for the
19 5, SDCWA I, supra, 12 Cal.App.5th at Wheeling Statutes to apply. See SDCWA I,
pp. 1150–51.) 12 Cal. App. 5th at 1150. As detailed
20
throughout Metropolitan’s motion for
21 summary adjudication papers and in its
papers in opposition to this motion, the
22 parties’ Exchange Agreement is not a
wheeling agreement for many reasons,
23 including because the exchange of water is
not contingent on unused capacity.
24 Undisputed that the Court of Appeal
In SDCWA I, the Court of Appeal further
11. decision in SDCWA I includes the quoted
25
2
26 As discussed in Section III.B of the Water Authority’s accompanying Memorandum of Points
and Authorities, several of Metropolitan’s cross-claims and affirmative defenses fail for the same
27 fundamental reasons. Each of those is specifically and separately addressed in Issues 3 to 15
below, per Rule of Court 3.1350, but note, for convenience’s sake, that the facts and evidence for
28 Issues 3 to 15 are the same as those set forth below for Issue 2.
6
SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL
FACTS” IN THE 2016 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1845437
1 stated that “to the extent that the price language.
Metropolitan charged the Water Disputed that the Court of Appeal’s
2 Authority for wheeling was based on an language has bearing on any issue other
3 unlawful rate, there was a breach of the than the Water Stewardship Rate. Further
amended exchange agreement providing disputed that the Water Stewardship Rate
4 for future prices ‘equal to the charge or presents a live controversy in these cases.
charges set by Metropolitan's Board of Metropolitan has paid all amounts for its
5 Directors pursuant to applicable law and prior inclusion of the Water Stewardship
regulation and generally applicable to Rate in its transportation rates for the years
6
the conveyance of water by Metropolitan at issue. The parties’ corresponding claims
7 on behalf of its member agencies.’” (Ex. and the Water Authority’s motion are moot.
5, SDCWA I, supra, 12 Cal.App.5th at p.
8 1154.)
In SDCWA I, the Court of Appeal stated Undisputed that the Court of Appeal
9 12. that “the evidence sufficiently decision in SDCWA I includes the quoted
establishes a violation of the contractual language.
10
price term, not just the wheeling rate,
11 and actionable injury by payment of a
water stewardship rate unrelated to the
12 transportation services provided.” (Ex.
5, SDCWA I, supra, 12 Cal.App.5th at p.
13 1154.)
In SDCWA II, the Court of Appeal Undisputed that the Court of Appeal
14 13. decision in SDCWA II includes the quoted
stated: “In its 2010 and 2012 actions, the
Water Authority’s requests for language.
15
mandamus were predicated on a claim Disputed that the Court of Appeal’s
16 that Metropolitan failed to act as language has bearing on any issue other
required by law in determining ‘fair than the Water Stewardship Rate. Further
17 compensation’ for a wheeler’s use of an disputed that the Water Stewardship Rate
18 owner’s water conveyance system for presents a live controversy in these cases.
transporting water under both the Metropolitan has paid all amounts for its
19 Wheeling Statutes and the parties’ prior inclusion of the Water Stewardship
exchange agreement under which Rate in its transportation rates for the years
20 Metropolitan had a duty to calculate at issue. The parties’ corresponding claims
water rates pursuant to applicable law and the Water Authority’s motion are moot.
21
and regulation.” (Ex. 8, SDCWA II,
22 supra, 2021 WL 4272331, at p. *7.)
The Court of Appeal stated: “Thus, the Undisputed that the Court of Appeal
23 14. writ properly compels Metropolitan to decision in SDCWA II includes the quoted
perform its clear and present legal language.
24 obligation, pursuant to Water Code Disputed that the Court of Appeal’s
sections 1810 and 1812, requiring the language has bearing on any issue other
25
owner of a water conveyance facility to than the Water Stewardship Rate. Further
26 timely determine fair compensation for disputed that the Water Stewardship Rate
use of its water conveyance services for presents a live controversy in these cases.
27 the benefit of the Water Authority, Metropolitan has paid all amounts for its
which is an entity entitled to use the prior inclusion of the Water Stewardship
28
7
SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL
FACTS” IN THE 2016 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1845437
1 facilities upon the payment of fair Rate in its transportation rates for the years
compensation.” (Ex. 8, SDCWA II, at issue. The parties’ corresponding claims
2 supra, 2021 WL 4272331, at p. *8.) and the Water Authority’s motion are moot.
3 Water Code section 1811, subdivision Undisputed that the Water Code includes
15. (c), defines “fair compensation” as the quoted language.
4 “including reasonable credit for any Disputed that the Water Authority is entitled
offsetting benefits for the use of the to a credit for offsetting benefits for the
5 conveyance system.” (See Ex. 9 at pp. multiple reasons stated in Metropolitan’s
6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex. pending motion for summary adjudication
6
13.) and in its opposition to the Water
7 Authority’s motion.
In SDCWA I, the Court of Appeal stated: Undisputed that the Court of Appeal
8 16. “Metropolitan has made several decision in SDCWA I includes the quoted
assertions on appeal denying an language.
9 Disputed that the language has preclusive
enforceable contract and actionable
breach but none is persuasive.” (Ex. 5, effect as to Metropolitan’s cross-claims and
10 affirmative defenses in these cases. The
SDCWA I, supra, 12 Cal.App.5th at p.
portion of SDCWA I that the Water
11 1154; see also Ex. 4 at pp. 114–130.) Authority cites mentions only one defense,
illegality, which Metropolitan has not
12 pleaded in these cases. SDCWA I, 12 Cal.
App. 5th at 1154. The Water Authority also
13 relies on Metropolitan’s opening brief on
appeal in the 2010/2012 Actions. But the
14 entire section of the brief the Water
Authority cites also focuses on a defense not
15 at issue in these cases (illegality) and other
issues that are not embraced by the cross-
16 claims and affirmative defenses at issue in
the motion. (See SD Ex. 4, pp. 114-30.) In
17 addition, a party’s appellate brief does not
have preclusive effect on a later case.
18
For the reasons stated in Metropolitan’s
19 opposition to the motion, the cross-claims
and defenses at issue in these cases rely on
20
additional factual allegations that were not
21 at issue in the earlier cases, including the
Water Authority’s new allegations about
22 offsetting benefits and the Water
Authority’s prior representations or silence
23 on offsetting benefits during contract
negotiations and performance. (See, e.g.,
24
Answers ¶¶ 11-12, 34-49.) The Water
25 Authority can thus not meet the identical
issue element of issue preclusion. See Key v.
26 Tyler, 34 Cal. App. 5th 505, 534 (2019), as
modified on denial of reh’g (May 7, 2019)
27 (“The identical issue requirement for issue
28 preclusion addresses whether identical
8
SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL
FACTS” IN THE 2016 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1845437
1 factual allegations are at stake, ‘not whether
the ultimate issues or dispositions are the
2 same.’” (quoting Lucido v. Superior Court,
3 51 Cal. 3d 335, 342 (1990))).
The Court of Appeal stated: “Fees and Undisputed that the Court of Appeal
17. rates are ‘subject to attack’ when decision in SDCWA I includes the quoted
4
reenacted, even if they are essentially the language.
5 same as previous ones.” (Ex. 5, SDCWA Disputed that SDCWA I has preclusive
I, supra, 12 Cal.App.5th at p. 1142; see effect on this issue for the reasons stated in
6 Metropolitan’s opposition to the motion.
also Ex. 9 at pp. 7–10, 12–13.)
7
8 Issue 3: Metropolitan’s second cause of action in its 2016 cross-complaint, for declaratory relief
regarding offsetting benefits, is barred because Metropolitan has an enforceable duty under the
9 Wheeling Statutes and the Exchange Agreement to charge no more than “fair compensation,”
10 which is defined as “including reasonable credit for any offsetting benefits for the use of the
conveyance system.” (Wat. Code, § 1811, subd. (c).)
11
The Water Authority’s undisputed Metropolitan’s response and supporting
12 material facts and supporting evidence:
evidence:
13
Paragraph 5.2 of the 2003 Amended and Undisputed.
18. Restated Exchange Agreement states that
14
“the Price shall be equal to the charge or
15 charges set by Metropolitan’s Board of
Directors pursuant to applicable law and
16 regulation and generally applicable to
the conveyance of water by Metropolitan
17
on behalf of its member agencies.” (Ex.
18 3, ¶ 5.2.)
In SDCWA I, the Court of Appeal stated: Disputed.
19 19. “A water agency’s payments to its The Water Authority has omitted key
members to encourage water language from the Court of Appeal decision
20 conservation is outside the scope of in SDCWA I in order to create the
21 recoverable costs contemplated by the impression that the decision stands for a
wheeling statute,” and therefore, different proposition than the ones stated in
22 Metropolitan’s “water stewardship rate the decision. The omitted text for instance,
used to fund conservation programs” is includes the Wheeling Statutes’ requirement
23 not “recoverable as ‘fair compensation’ that there must be “unused capacity” in the
for use of the conveyance system.” (Ex. conveyance system in order for the
24 5, SDCWA I, supra, 12 Cal.App.5th at Wheeling Statutes to apply. See SDCWA I,
25 pp. 1150–51.) 12 Cal. App. 5th at 1150. As detailed
throughout Metropolitan’s motion for
26 summary adjudication papers and i
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Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 10. 2 - DEFENDANT GENERAL MOTORS, LLC's MOTION TO STRIKE 1ST Amended COMPLAINT. Off calendar. The Quezada declaration fails to show that the parties met and conferred "in person, by telephone, or by video conference" in compliance with CCP 435.5. The parties are ordered to comply with the code. The response to the complaint is now due August 7, 2024. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
EDWARD WESTERMAN VS. FTI CONSULTING, INC. ET AL
Jul 09, 2024 |
CGC24615152
Matter on the Law & Motion Calendar for Tuesday, July 9, 2024, Line 12. PLAINTIFF EDWARD WESTERMAN's Motion To Seal. Plaintiff's unopposed motion to seal is granted. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
CLEAR HOMES LLC, A NEW MEXICO LIMITED LIABILITY VS. BRENDAN MICHAEL WEE ET AL
Jul 11, 2024 |
CGC23607972
Real Property/Housing Court Law and Motion Calendar for July 11, 2024 line 2. DEFENDANT BRENDAN WEE, ERIKA HILTON MOTION FOR JUDGMENT ON THE PLEADINGS is Off Calendar - Per request of moving party. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
ELIANE DOS SANTOS VITAL, AN INDIVIDUAL ET AL VS. AMERICAN HONDA MOTOR CO., INC., A CALIFORNIA ET AL
Jul 12, 2024 |
CGC22601133
Matter on the Discovery Calendar for Friday, Jul-12-2024, Line 2, PLAINTIFFS ELIANE DOS SANTOS VITAL, AN INDIVIDUAL, and WIDES VITAL DA SILVA'S, AN INDIVIDUAL, Motion To Compel Further Responses To Plaintiffs Request For Production Of Documents, Set Two. Pro Tem Judge William Lynn, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: Parties to appear if the motion remains unresolved. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link (DISCOVERY, DEPARTMENT 302 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 302. Any party who contests a tentative ruling must send an email to williamclynn@gmail.com with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/JPT)
Ruling
Y.P. VS. WELLS FARGO & COMPANY, ET AL
Jul 10, 2024 |
CGC24613065
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 12. DEFENDANT EARL IGNACIO AND WELLS FARGO BANK, N.A.'s Motion To Compel Arbitration. Defendants Wells Fargo Bank, N.A. and Earl Ignacio's motion to compel arbitration and stay is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
MARY ELIZABETH LEMASTERS VS. SCHOENBERG FAMILY LAW GROUP P.C. ET AL
Jul 09, 2024 |
CGC22600572
Matter on the Law & Motion Calendar for Tuesday, July 9, 2024, Line 4. PLAINTIFF MARY LEMASTERS' MOTION FOR WITHDRAWAL OF ATTORNEY OF RECORD. Hearing required. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
JOHN P BERNARD VS. BMW OF NORTH AMERICA, LLC ET AL
Jul 10, 2024 |
CGC23608339
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 8. PLAINTIFF JOHN BERNARD's Motion For Award Of Attorneys Fees, Costs, And Expenses. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. In meantime, counsel shall meet and confer to resolve their differences. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Preview
1 KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 2 jkeker@keker.com DAN JACKSON - # 216091 ELECTRONICALLY 3 djackson@keker.com WARREN A. BRAUNIG - # 243884 F I L E D Superior Court of California, 4 wbraunig@keker.com County of San Francisco NICHOLAS S. GOLDBERG - # 273614 5 ngoldberg@keker.com 04/04/2022 633 Battery Street Clerk of the Court BY: RONNIE OTERO 6 San Francisco, CA 94111-1809 Deputy Clerk Telephone: (415) 391-5400 7 Facsimile: (415) 397-7188 8 MARK J. HATTAM - # 173667 mhattam@sdcwa.org 9 General Counsel SAN DIEGO COUNTY WATER AUTHORITY 10 4677 Overland Avenue San Diego, CA 92123-1233 11 Telephone: (858) 522-6791 Facsimile: (858) 522-6566 12 Attorneys for Petitioner, Plaintiff, and Cross-Defendant EXEMPT FROM FILING FEES 13 SAN DIEGO COUNTY WATER AUTHORITY [GOVERNMENT CODE § 6103] 14 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 IN AND FOR THE COUNTY OF SAN FRANCISCO 17 SAN DIEGO COUNTY WATER Lead Case No. CPF-14-514004 18 AUTHORITY, Consolidated with Case Nos. CPF-16-515282 19 Petitioner, Plaintiff and Cross- & CPF-18-516389 Defendant, 20 SAN DIEGO COUNTY WATER v. AUTHORITY’S RESPONSE TO 21 METROPOLITAN WATER DISTRICT’S METROPOLITAN WATER DISTRICT OF PURPORTED “ADDITIONAL FACTS” IN 22 SOUTHERN CALIFORNIA; ALL THE 2016 ACTION PERSONS INTERESTED IN THE 23 VALIDITY OF THE RATES ADOPTED Date: April 13, 2022 BY THE METROPOLITAN WATER Time: 2:00 p.m. 24 DISTRICT OF SOUTHERN CALIFORNIA Dept.: 306 ON APRIL 8, 2014 TO BE EFFECTIVE Judge: Hon. Anne-Christine Massullo 25 JANUARY 1, 2015 AND JANUARY 1, 2016; and DOES 1-10, Date Filed: May 30, 2014 26 Respondents, Defendants and Trial Date: May 16–27, 2022 27 Cross-Complainant. 28 SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL FACTS” IN THE 2016 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1845437 1 TABLE OF CONTENTS 2 Page 3 The Water Authority’s Undisputed Material Facts Warranting Summary Adjudication ...........................................................................................................3 4 A. Issue 1 (see Memorandum of Points and Authorities § III.A) .................................3 5 B. Issues 2–15 (see Memorandum of Points and Authorities § III.B)..........................6 6 C. Issues 16–25 (see Memorandum of Points and Authorities § III.C)......................49 7 D. Issues 26–27 (see Memorandum of Points and Aut78horities § III.D) .................58 8 E. Issue 28 (see Memorandum of Points and Authorities § III.E) .............................61 9 F. Issue 29 (see Memorandum of Points and Authorities § III.E) .............................62 10 G. Issues 30–31 (see Memorandum of Points and Authorities § III.F) ......................63 11 H. Issues 32–33 (see Memorandum of Points and Authorities § III.F) ......................74 12 I. Issues 34–35 (see Memorandum of Points and Authorities § III.F) ......................76 13 Metropolitan’s Additional Material Facts .....................................................................79 14 A. Issue 1 ....................................................................................................................79 15 B. Issues 2–15 .............................................................................................................98 16 C. Issues 16–25 .........................................................................................................103 17 D. Issues 26–27 .........................................................................................................105 18 E. Issue 28 ................................................................................................................106 19 F. Issue 29 ................................................................................................................106 20 G. Issues 30–31 .........................................................................................................107 21 H. Issues 32–33 .........................................................................................................107 22 I. Issues 34–35 .........................................................................................................108 23 24 25 26 27 28 2 SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL FACTS” IN THE 2016 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1845437 1 The Water Authority hereby submits this response to the purported “additional material 2 facts” set forth in Metropolitan’s Opposition to the Water Authority’s Separate Statement.1 Of 3 the 40 additional material facts set forth in Metropolitan’s Opposition to the Water Authority’s 4 Separate Statement (and then incorporated by refence in connection with each issue), the first 39 5 are identical to the purported facts that Metropolitan provided in its February 22, 2022, Separate 6 Statement of Undisputed Material Facts in Support of its Motion for Summary Adjudication. As 7 such, the Water Authority’s responses herein to those 39 “additional material facts” are the same 8 as in the Water Authority’s March 21, 2022, Separate Statement in Opposition to Metropolitan’s 9 Motion for Summary Adjudication, previously filed with this Court. The Water Authority also 10 responds herein to Metropolitan’s new 40th fact. 11 For the sake of clarity and to provide the Court with a complete Separate Statement in a 12 single document, the Water Authority provides below: (1) the Water Authority’s Undisputed 13 Material Facts and Metropolitan’s Responses (pages 3–78), followed by (2) Metropolitan’s 14 purported additional material facts and the Water Authority’s responses (pages 79–108). 15 The Water Authority’s Undisputed Material Facts Warranting Summary Adjudication 16 A. Issue 1 (see Memorandum of Points and Authorities § III.A) 17 Issue 1: Metropolitan’s first cause of action in its 2016 cross-complaint, for declaratory relief regarding the Water Stewardship Rate, is barred by issue preclusion. 18 19 The Water Authority’s undisputed Metropolitan’s response and supporting material facts and supporting evidence: 20 evidence: On April 24, 2014, this Court issued its Undisputed that the Court issued a statement 21 1. “Statement of Decision on Rate Setting of decision. Challenges” in CPF-10-510830 and Disputed that the statement of decision in 22 the 2010/2012 Actions has preclusive effect CPF-12-512466 (the “prior cases”). (Ex. 1.) on the issues identified in the Water 23 Authority’s motion. As explained in Metropolitan’s opposition brief, the Water 24 Authority bears the burden on issue preclusion, but has failed to analyze the 25 elements for preclusion in the motion. See 26 1 On reply, it is appropriate for a party to respond to an opposing party’s additional facts, but not 27 in support of its own undisputed material facts and supporting evidence. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249; Cal. Prac. Guide Civ. Pro. Before Trial 10:220.5- 28 6.) 3 SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL FACTS” IN THE 2016 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1845437 1 Hong Sang Mkt., Inc. v. Peng, 20 Cal. App. 5th 474, 489 (2018) (“A party who asserts 2 claim or issue preclusion as a bar to further litigation bears the burden of proving that 3 the requirements of the doctrine are satisfied.” (citing Vella v. Hudgins, 20 Cal. 4 3d 251, 257 (1977))). Here, multiple elements of preclusion, including the 5 identical issues element, are not met for the reasons stated in Metropolitan’s brief. 6 In addition, a trial court ruling lacks 7 preclusive effect if properly appealed and the Court of Appeal does not embrace the 8 grounds of the appeal. See Samara v. Matar, 5 Cal. 5th 322, 334 (2018) (“we now 9 conclude that a ground reached by the trial 10 court and properly challenged on appeal, but not embraced by the appellate court’s 11 decision, should not affect the judgment’s preclusive effect.”). 12 On August 28, 2015, this Court issued its Undisputed that the Court issued a statement 2. second “Statement of Decision” in the of decision. 13 prior cases. (Ex. 2.) Disputed that the statement of decision in 14 the 2010/2012 Actions has preclusive effect on the issues identified in the Water 15 Authority’s motion. As explained in Metropolitan’s opposition brief, the Water 16 Authority bears the burden on issue preclusion, but has failed to analyze the 17 elements for preclusion in the motion. See Hong Sang Mkt., Inc. v. Peng, 20 Cal. App. 18 5th 474, 489 (2018) (“A party who asserts claim or issue preclusion as a bar to further 19 litigation bears the burden of proving that the requirements of the doctrine are 20 satisfied.” (citing Vella v. Hudgins, 20 Cal. 3d 251, 257 (1977))). Here, multiple 21 elements of preclusion, including the identical issues element, are not met for the 22 reasons stated in Metropolitan’s brief. In addition, a trial court ruling lacks 23 preclusive effect if properly appealed and 24 the Court of Appeal does not embrace the grounds of the appeal. See Samara v. Matar, 25 5 Cal. 5th 322, 334 (2018) (“we now conclude that a ground reached by the trial 26 court and properly challenged on appeal, but not embraced by the appellate court’s 27 decision, should not affect the judgment’s 28 preclusive effect.”). 4 SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL FACTS” IN THE 2016 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1845437 1 The California Court of Appeal, First Undisputed. 3. District, Division 3, issued its decision in 2 San Diego County Water Authority v. 3 Metropolitan Water Dist. of Southern California (2017) 12 Cal.App.5th 1124 4 (SDCWA I), as modified on denial of rehearing on July 18, 2017. (Ex. 5.) 5 On remand from SDCWA I, this Court Undisputed. 4. issued its Judgment in the prior cases on 6 or about August 13, 2020. (Ex. 6.) 7 On or about August 14, 2020, this Court Undisputed. 5. issued its Peremptory Writ of Mandate in 8 the prior cases. (Ex. 7.) On September 21, 2021, the California Undisputed. 9 6. Court of Appeal, First District, Division 10 3, affirmed this Court’s Judgment and Peremptory Writ of Mandate in San 11 Diego County Water Authority v. Metropolitan Water Dist. of Southern 12 California (Cal. Ct. App., Sept. 21, 2021, No. A161144) 2021 WL 4272331 13 (SDCWA II). (Ex. 8.) 14 The Court of Appeal stated (in SDCWA Undisputed that the Court of Appeal 7. II) that its prior determination (in decision in SDCWA II includes the quoted 15 SDCWA I) regarding Metropolitan’s language. Water Stewardship Rate “concerned a Disputed that the Court of Appeal’s 16 particular category of costs (‘water language has bearing on any issue other stewardship rate’) which did not vary than the Water Stewardship Rate. Further 17 from year to year”; that “there was no disputed that the Water Stewardship Rate 18 need nor did we intend to limit our presents a live controversy in these cases. determination to any particular rate Metropolitan has paid all amounts for its 19 year.” (Ex. 8 at p. *5.) prior inclusion of the Water Stewardship Rate in its transportation rates for the years 20 at issue. The parties’ corresponding claims and the Water Authority’s motion are moot. 21 The Court of Appeal stated (in SDCWA Undisputed that the Court of Appeal 8. II): “That Metropolitan apparently decision in SDCWA II includes the quoted 22 believes that in some future rate year it language. 23 can recover a water stewardship rate as a Disputed that the Court of Appeal’s cost subcomponent of its transportation language has bearing on any issue other 24 costs in its wheeling rate or the than the Water Stewardship Rate. Further 25 transportation rates charged under the disputed that the Water Stewardship Rate exchange agreement, thereby presents a live controversy in these cases. 26 contravening our prior opinion, supports Metropolitan has paid all amounts for its the trial court’s continuing jurisdiction to prior inclusion of the Water Stewardship 27 assure compliance with its judgment.” Rate in its transportation rates for the years (Ex. 8 at p. *6.) at issue. The parties’ corresponding claims 28 5 SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL FACTS” IN THE 2016 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1845437 1 and the Water Authority’s motion are moot. 2 B. Issues 2–15 (see Memorandum of Points and Authorities § III.B) 3 Issue 2: Metropolitan has an enforceable duty under the Wheeling Statutes and the 4 Exchange Agreement to charge no more than “fair compensation,” which is defined as “including reasonable credit for any offsetting benefits for the use of the conveyance system.” (Wat. Code, § 5 2 1811, subd. (c).) 6 The Water Authority’s undisputed Metropolitan’s response and supporting 7 material facts and supporting evidence: evidence: 8 Paragraph 5.2 of the 2003 Amended and Undisputed. 9. Restated Exchange Agreement states that 9 “the Price shall be equal to the charge or charges set by Metropolitan’s Board of 10 Directors pursuant to applicable law and 11 regulation and generally applicable to the conveyance of water by Metropolitan 12 on behalf of its member agencies.” (Ex. 3, ¶ 5.2.) 13 In SDCWA I, the Court of Appeal stated: Disputed. 10. “A water agency’s payments to its 14 The Water Authority has omitted key members to encourage water language from the Court of Appeal decision 15 conservation is outside the scope of in SDCWA I in order to create the recoverable costs contemplated by the impression that the decision stands for a 16 wheeling statute,” and therefore, different proposition than the ones stated in Metropolitan’s “water stewardship rate the decision. The omitted text for instance, 17 used to fund conservation programs” is includes the Wheeling Statutes’ requirement 18 not “recoverable as ‘fair compensation’ that there must be “unused capacity” in the for use of the conveyance system.” (Ex. conveyance system in order for the 19 5, SDCWA I, supra, 12 Cal.App.5th at Wheeling Statutes to apply. See SDCWA I, pp. 1150–51.) 12 Cal. App. 5th at 1150. As detailed 20 throughout Metropolitan’s motion for 21 summary adjudication papers and in its papers in opposition to this motion, the 22 parties’ Exchange Agreement is not a wheeling agreement for many reasons, 23 including because the exchange of water is not contingent on unused capacity. 24 Undisputed that the Court of Appeal In SDCWA I, the Court of Appeal further 11. decision in SDCWA I includes the quoted 25 2 26 As discussed in Section III.B of the Water Authority’s accompanying Memorandum of Points and Authorities, several of Metropolitan’s cross-claims and affirmative defenses fail for the same 27 fundamental reasons. Each of those is specifically and separately addressed in Issues 3 to 15 below, per Rule of Court 3.1350, but note, for convenience’s sake, that the facts and evidence for 28 Issues 3 to 15 are the same as those set forth below for Issue 2. 6 SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL FACTS” IN THE 2016 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1845437 1 stated that “to the extent that the price language. Metropolitan charged the Water Disputed that the Court of Appeal’s 2 Authority for wheeling was based on an language has bearing on any issue other 3 unlawful rate, there was a breach of the than the Water Stewardship Rate. Further amended exchange agreement providing disputed that the Water Stewardship Rate 4 for future prices ‘equal to the charge or presents a live controversy in these cases. charges set by Metropolitan's Board of Metropolitan has paid all amounts for its 5 Directors pursuant to applicable law and prior inclusion of the Water Stewardship regulation and generally applicable to Rate in its transportation rates for the years 6 the conveyance of water by Metropolitan at issue. The parties’ corresponding claims 7 on behalf of its member agencies.’” (Ex. and the Water Authority’s motion are moot. 5, SDCWA I, supra, 12 Cal.App.5th at p. 8 1154.) In SDCWA I, the Court of Appeal stated Undisputed that the Court of Appeal 9 12. that “the evidence sufficiently decision in SDCWA I includes the quoted establishes a violation of the contractual language. 10 price term, not just the wheeling rate, 11 and actionable injury by payment of a water stewardship rate unrelated to the 12 transportation services provided.” (Ex. 5, SDCWA I, supra, 12 Cal.App.5th at p. 13 1154.) In SDCWA II, the Court of Appeal Undisputed that the Court of Appeal 14 13. decision in SDCWA II includes the quoted stated: “In its 2010 and 2012 actions, the Water Authority’s requests for language. 15 mandamus were predicated on a claim Disputed that the Court of Appeal’s 16 that Metropolitan failed to act as language has bearing on any issue other required by law in determining ‘fair than the Water Stewardship Rate. Further 17 compensation’ for a wheeler’s use of an disputed that the Water Stewardship Rate 18 owner’s water conveyance system for presents a live controversy in these cases. transporting water under both the Metropolitan has paid all amounts for its 19 Wheeling Statutes and the parties’ prior inclusion of the Water Stewardship exchange agreement under which Rate in its transportation rates for the years 20 Metropolitan had a duty to calculate at issue. The parties’ corresponding claims water rates pursuant to applicable law and the Water Authority’s motion are moot. 21 and regulation.” (Ex. 8, SDCWA II, 22 supra, 2021 WL 4272331, at p. *7.) The Court of Appeal stated: “Thus, the Undisputed that the Court of Appeal 23 14. writ properly compels Metropolitan to decision in SDCWA II includes the quoted perform its clear and present legal language. 24 obligation, pursuant to Water Code Disputed that the Court of Appeal’s sections 1810 and 1812, requiring the language has bearing on any issue other 25 owner of a water conveyance facility to than the Water Stewardship Rate. Further 26 timely determine fair compensation for disputed that the Water Stewardship Rate use of its water conveyance services for presents a live controversy in these cases. 27 the benefit of the Water Authority, Metropolitan has paid all amounts for its which is an entity entitled to use the prior inclusion of the Water Stewardship 28 7 SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL FACTS” IN THE 2016 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1845437 1 facilities upon the payment of fair Rate in its transportation rates for the years compensation.” (Ex. 8, SDCWA II, at issue. The parties’ corresponding claims 2 supra, 2021 WL 4272331, at p. *8.) and the Water Authority’s motion are moot. 3 Water Code section 1811, subdivision Undisputed that the Water Code includes 15. (c), defines “fair compensation” as the quoted language. 4 “including reasonable credit for any Disputed that the Water Authority is entitled offsetting benefits for the use of the to a credit for offsetting benefits for the 5 conveyance system.” (See Ex. 9 at pp. multiple reasons stated in Metropolitan’s 6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex. pending motion for summary adjudication 6 13.) and in its opposition to the Water 7 Authority’s motion. In SDCWA I, the Court of Appeal stated: Undisputed that the Court of Appeal 8 16. “Metropolitan has made several decision in SDCWA I includes the quoted assertions on appeal denying an language. 9 Disputed that the language has preclusive enforceable contract and actionable breach but none is persuasive.” (Ex. 5, effect as to Metropolitan’s cross-claims and 10 affirmative defenses in these cases. The SDCWA I, supra, 12 Cal.App.5th at p. portion of SDCWA I that the Water 11 1154; see also Ex. 4 at pp. 114–130.) Authority cites mentions only one defense, illegality, which Metropolitan has not 12 pleaded in these cases. SDCWA I, 12 Cal. App. 5th at 1154. The Water Authority also 13 relies on Metropolitan’s opening brief on appeal in the 2010/2012 Actions. But the 14 entire section of the brief the Water Authority cites also focuses on a defense not 15 at issue in these cases (illegality) and other issues that are not embraced by the cross- 16 claims and affirmative defenses at issue in the motion. (See SD Ex. 4, pp. 114-30.) In 17 addition, a party’s appellate brief does not have preclusive effect on a later case. 18 For the reasons stated in Metropolitan’s 19 opposition to the motion, the cross-claims and defenses at issue in these cases rely on 20 additional factual allegations that were not 21 at issue in the earlier cases, including the Water Authority’s new allegations about 22 offsetting benefits and the Water Authority’s prior representations or silence 23 on offsetting benefits during contract negotiations and performance. (See, e.g., 24 Answers ¶¶ 11-12, 34-49.) The Water 25 Authority can thus not meet the identical issue element of issue preclusion. See Key v. 26 Tyler, 34 Cal. App. 5th 505, 534 (2019), as modified on denial of reh’g (May 7, 2019) 27 (“The identical issue requirement for issue 28 preclusion addresses whether identical 8 SDCWA’S RESPONSE TO METROPOLITAN WATER DISTRICT’S PURPORTED “ADDITIONAL FACTS” IN THE 2016 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1845437 1 factual allegations are at stake, ‘not whether the ultimate issues or dispositions are the 2 same.’” (quoting Lucido v. Superior Court, 3 51 Cal. 3d 335, 342 (1990))). The Court of Appeal stated: “Fees and Undisputed that the Court of Appeal 17. rates are ‘subject to attack’ when decision in SDCWA I includes the quoted 4 reenacted, even if they are essentially the language. 5 same as previous ones.” (Ex. 5, SDCWA Disputed that SDCWA I has preclusive I, supra, 12 Cal.App.5th at p. 1142; see effect on this issue for the reasons stated in 6 Metropolitan’s opposition to the motion. also Ex. 9 at pp. 7–10, 12–13.) 7 8 Issue 3: Metropolitan’s second cause of action in its 2016 cross-complaint, for declaratory relief regarding offsetting benefits, is barred because Metropolitan has an enforceable duty under the 9 Wheeling Statutes and the Exchange Agreement to charge no more than “fair compensation,” 10 which is defined as “including reasonable credit for any offsetting benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd. (c).) 11 The Water Authority’s undisputed Metropolitan’s response and supporting 12 material facts and supporting evidence: evidence: 13 Paragraph 5.2 of the 2003 Amended and Undisputed. 18. Restated Exchange Agreement states that 14 “the Price shall be equal to the charge or 15 charges set by Metropolitan’s Board of Directors pursuant to applicable law and 16 regulation and generally applicable to the conveyance of water by Metropolitan 17 on behalf of its member agencies.” (Ex. 18 3, ¶ 5.2.) In SDCWA I, the Court of Appeal stated: Disputed. 19 19. “A water agency’s payments to its The Water Authority has omitted key members to encourage water language from the Court of Appeal decision 20 conservation is outside the scope of in SDCWA I in order to create the 21 recoverable costs contemplated by the impression that the decision stands for a wheeling statute,” and therefore, different proposition than the ones stated in 22 Metropolitan’s “water stewardship rate the decision. The omitted text for instance, used to fund conservation programs” is includes the Wheeling Statutes’ requirement 23 not “recoverable as ‘fair compensation’ that there must be “unused capacity” in the for use of the conveyance system.” (Ex. conveyance system in order for the 24 5, SDCWA I, supra, 12 Cal.App.5th at Wheeling Statutes to apply. See SDCWA I, 25 pp. 1150–51.) 12 Cal. App. 5th at 1150. As detailed throughout Metropolitan’s motion for 26 summary adjudication papers and i