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1 MANATT, PHELPS & PHILLIPS, LLP Exempt from filing fee pursuant to
Barry W. Lee (SBN 88685) Government Code § 6103
2 Justin Jones Rodriguez (SBN 279080)
One Embarcadero Center, 30th Floor ELECTRONICALLY
3 San Francisco, California 94111 F I L E D
Telephone: (415) 291-7450 Superior Court of California,
4 Facsimile: (415) 291-7474 County of San Francisco
Email: bwlee@manatt.com 03/21/2022
5 Email: jjrodriguez@manatt.com Clerk of the Court
BY: YOLANDA TABO-RAMIREZ
6 THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA
Deputy Clerk
Marcia Scully (SBN 80648)
7 Heather C. Beatty (SBN 161907)
Patricia J. Quilizapa (SBN 233745)
8 700 North Alameda Street
Los Angeles, CA 90012-2944
9 Telephone: (213) 217-6834
Facsimile: (213) 217-6890
10 Email: hbeatty@mwdh2o.com
11 Attorneys for Respondent, Defendant, and Cross-Complainant
THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA
12
Additional counsel listed on following page
13
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 FOR THE COUNTY OF SAN FRANCISCO
16 SAN DIEGO COUNTY WATER Case No. CPF-14-514004; consolidated with
AUTHORITY, Case Nos. CPF-16-515282 & CPF-18-
17 516389
Petitioner and Plaintiff,
18 Assigned for all purposes to the
v. Hon. Anne-Christine Massullo, Dept. 306
19
THE METROPOLITAN WATER DISTRICT METROPOLITAN WATER DISTRICT
20 OF SOUTHERN CALIFORNIA, ALL OF SOUTHERN CALIFORNIA’S
PERSONS INTERESTED IN THE OPPOSITION TO THE WATER
21 VALIDITY OF THE RATES ADOPTED BY AUTHORITY’S SEPARATE
THE METROPOLITAN WATER DISTRICT STATEMENT FILED IN SUPPORT OF
22 OF SOUTHERN CALIFORNIA ON APRIL 8, MOTION FOR SUMMARY
2014 TO BE EFFECTIVE JANUARY 1, 2015 ADJUDICATION (2014 ACTION)
23 AND JANUARY 1, 2016; and DOES 1-10,
[Filed concurrently with (1) opposition; (2)
24 Respondents and Defendants. appendix of evidence; (3) request for judicial
notice; (4) response to request for judicial
25 notice; (5) objections to evidence; (6)
proposed order re objections.]
26
Hearing Date: April 13, 2022, 2:00 p.m.
27
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MANATT, PHELPS &
METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT
PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 THE METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA,
2
Respondent, Defendant and Cross-
3 Complainant,
4 vs.
5 SAN DIEGO COUNTY WATER
AUTHORITY,
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Petitioner, Plaintiff and Cross-
7 Defendant.
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MANATT, PHELPS &
METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT
PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 MILLER BARONDESS LLP
Mira Hashmall (SBN 216842)
2 1999 Avenue of the Stars, Suite 1000
Los Angeles, California 90067
3 Telephone: 310-552-4400
Facsimile: 310-552-8400
4 Email: mhashmall@millerbarondess.com
5 MORGAN, LEWIS & BOCKIUS LLP
Colin C. West (SBN 184095)
6 One Market, Spear Street Tower
San Francisco, California 94105-1596
7 Telephone: (415) 422-1000
Facsimile: (415) 422-1101
8 Email: colin.west@morganlewis.com
9 Attorneys for Respondent, Defendant, and Cross-Complainant
THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA
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MANATT, PHELPS &
METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT
PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 TABLE OF CONTENTS
2 Page
3 I. METROPOLITAN’S RESPONSES TO THE WATER AUTHORITY’S FACTS ........... 1
4 A. Issue 1 ..................................................................................................................... 1
B. Issues 2-15 ............................................................................................................... 3
5
C. Issues 16-25 ........................................................................................................... 50
6 D. Issues 26-27 ........................................................................................................... 60
7 E. Issue 28 ................................................................................................................. 62
F. Issue 29 ................................................................................................................. 63
8
G. Issues 30-32 ........................................................................................................... 64
9 H. Issues 33-34 ........................................................................................................... 82
10 I. Issues 35-36 ........................................................................................................... 84
II. METROPOLITAN’S ADDITIONAL MATERIAL FACTS ........................................... 85
11
A. Issue 1 ................................................................................................................... 85
12 B. Issues 2–15 ............................................................................................................ 97
13 C. Issues 16–25 ........................................................................................................ 100
D. Issues 26–27 ........................................................................................................ 103
14
E. Issue 28 ............................................................................................................... 103
15 F. Issue 29 ............................................................................................................... 103
16 G. Issues 30–32 ........................................................................................................ 104
H. Issues 33–34 ........................................................................................................ 104
17
I. Issues 35–36 ........................................................................................................ 105
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MANATT, PHELPS &
PHILLIPS, LLP
-i-
ATTORNEYS AT LAW
SAN FRANCISCO
1 In support of Respondent, Defendant, and Cross-Complainant Metropolitan Water District
2 of Southern California (“Metropolitan”)’s opposition to Petitioner, Plaintiff, and Cross-Defendant
3 San Diego County Water Authority (“Water Authority”)’s motion for summary adjudication,
4 Metropolitan submits the following responses and additional material facts to San Diego’s
5 separate statement:
6 I. METROPOLITAN’S RESPONSES TO THE WATER AUTHORITY’S FACTS
7 A. Issue 1
8 Issue 1: Whether “Metropolitan’s first cause of action in its 2014 cross-complaint, for declaratory
relief regarding the Water Stewardship Rate, is barred by issue preclusion.”
9
The Water Authority’s undisputed Metropolitan’s response and supporting
10
material facts and supporting evidence:
11 evidence:
On April 24, 2014, this Court issued its Undisputed that the Court issued a statement
12 1. “Statement of Decision on Rate Setting of decision.
Challenges” in CPF-10-510830 and Disputed that the statement of decision in
13 CPF-12-512466 (the “prior cases”). (Ex. the 2010/2012 Actions has preclusive effect
1.) on the issues identified in the Water
14 Authority’s motion. As explained in
Metropolitan’s opposition brief, the Water
15 Authority bears the burden on issue
preclusion, but has failed to analyze the
16 elements for preclusion in the motion. See
Hong Sang Mkt., Inc. v. Peng, 20 Cal. App.
17 5th 474, 489 (2018) (“A party who asserts
claim or issue preclusion as a bar to further
18 litigation bears the burden of proving that
the requirements of the doctrine are
19 satisfied.” (citing Vella v. Hudgins, 20 Cal.
3d 251, 257 (1977))). Here, multiple
20 elements of preclusion, including the
identical issues element, are not met for the
21 reasons stated in Metropolitan’s brief.
22 In addition, a trial court ruling lacks
preclusive effect if properly appealed and
23 the Court of Appeal does not embrace the
grounds of the appeal. See Samara v. Matar,
24 5 Cal. 5th 322, 334 (2018) (“we now
25 conclude that a ground reached by the trial
court and properly challenged on appeal, but
26 not embraced by the appellate court’s
decision, should not affect the judgment’s
27 preclusive effect.”).
28 -1-
MANATT, PHELPS &
METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT
PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 The Water Authority’s undisputed Metropolitan’s response and supporting
material facts and supporting evidence:
2 evidence:
3 On August 28, 2015, this Court issued its Undisputed that the Court issued a statement
2. second “Statement of Decision” in the of decision.
4 prior cases. (Ex. 2.) Disputed that the statement of decision in
the 2010/2012 Actions has preclusive effect
5 on the issues identified in the Water
Authority’s motion. As explained in
6 Metropolitan’s opposition brief, the Water
Authority bears the burden on issue
7 preclusion, but has failed to analyze the
elements for preclusion in the motion. See
8 Hong Sang Mkt., Inc. v. Peng, 20 Cal. App.
5th 474, 489 (2018) (“A party who asserts
9 claim or issue preclusion as a bar to further
litigation bears the burden of proving that
10 the requirements of the doctrine are
satisfied.” (citing Vella v. Hudgins, 20 Cal.
11 3d 251, 257 (1977))). Here, multiple
elements of preclusion, including the
12 identical issues element, are not met for the
reasons stated in Metropolitan’s brief.
13
In addition, a trial court ruling lacks
14 preclusive effect if properly appealed and
the Court of Appeal does not embrace the
15 grounds of the appeal. See Samara v. Matar,
5 Cal. 5th 322, 334 (2018) (“we now
16 conclude that a ground reached by the trial
17 court and properly challenged on appeal, but
not embraced by the appellate court’s
18 decision, should not affect the judgment’s
preclusive effect.”).
19 The California Court of Appeal, First Undisputed.
3. District, Division 3, issued its decision in
20 San Diego County Water Authority v.
21 Metropolitan Water Dist. of Southern
California (2017) 12 Cal.App.5th 1124
22 (SDCWA I), as modified on denial of
rehearing on July 18, 2017. (Ex. 5.)
23 On remand from SDCWA I, this Court Undisputed.
4. issued its Judgment in the prior cases on
24
or about August 13, 2020. (Ex. 6.)
25 On or about August 14, 2020, this Court Undisputed.
5. issued its Peremptory Writ of Mandate in
26 the prior cases. (Ex. 7.)
On September 21, 2021, the California Undisputed.
27 6. Court of Appeal, First District, Division
28 -2-
MANATT, PHELPS &
METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT
PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 The Water Authority’s undisputed Metropolitan’s response and supporting
material facts and supporting evidence:
2 evidence:
3 3, affirmed this Court’s Judgment and
Peremptory Writ of Mandate in San
4 Diego County Water Authority v.
Metropolitan Water Dist. of Southern
5 California (Cal. Ct. App., Sept. 21,
2021, No. A161144) 2021 WL 4272331
6
(SDCWA II). (Ex. 8.)
7 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
8 SDCWA I) regarding Metropolitan’s language.
Water Stewardship Rate “concerned a Disputed that the Court of Appeal’s
9 particular category of costs (‘water language has bearing on any issue other
10 stewardship rate’) which did not vary than the Water Stewardship Rate. Further
from year to year”; that “there was no disputed that the Water Stewardship Rate
11 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
12 year.” (Ex. 8 at p. *5.) prior inclusion of the Water Stewardship
Rate in its transportation rates for the years
13 at issue. The parties’ corresponding claims
14 and the Water Authority’s motion are moot.
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
15
believes that in some future rate year it language.
16 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
17
costs in its wheeling rate or the than the Water Stewardship Rate. Further
18 transportation rates charged under the disputed that the Water Stewardship Rate
exchange agreement, thereby presents a live controversy in these cases.
19 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
20 assure compliance with its judgment.” Rate in its transportation rates for the years
(Ex. 8 at p. *6.) at issue. The parties’ corresponding claims
21
and the Water Authority’s motion are moot.
22
B. Issues 2-15
23
Issue 2: Whether “Metropolitan has an enforceable duty under the Wheeling Statutes and the
24 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, §
25 1811, subd. (c).)”
26
27
28 -3-
MANATT, PHELPS &
METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT
PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 The Water Authority’s undisputed Metropolitan’s response and supporting
material facts and supporting evidence:
2 evidence:
3 Paragraph 5.2 of the 2003 Amended and Undisputed.
9. Restated Exchange Agreement states that
4 “the Price shall be equal to the charge or
charges set by Metropolitan’s Board of
5 Directors pursuant to applicable law and
regulation and generally applicable to
6
the conveyance of water by Metropolitan
7 on behalf of its member agencies.” (Ex.
3, ¶ 5.2.)
8 In SDCWA I, the Court of Appeal stated: Disputed.
10. “A water agency’s payments to its
9 The Water Authority has omitted key
members to encourage water language from the Court of Appeal decision
conservation is outside the scope of in SDCWA I in order to create the
10
recoverable costs contemplated by the impression that the decision stands for a
11 wheeling statute,” and therefore, different proposition than the ones stated in
Metropolitan’s “water stewardship rate the decision. The omitted text for instance,
12 used to fund conservation programs” is includes the Wheeling Statutes’ requirement
not “recoverable as ‘fair compensation’ that there must be “unused capacity” in the
13 for use of the conveyance system.” (Ex. conveyance system in order for the
14 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
15 throughout Metropolitan’s motion for
summary adjudication papers and in its
16
papers in opposition to this motion, the
17 parties’ Exchange Agreement is not a
wheeling agreement for many reasons,
18 including because the exchange of water is
not contingent on unused capacity.
19 In SDCWA I, the Court of Appeal further Undisputed that the Court of Appeal
11. stated that “to the extent that the price decision in SDCWA I includes the quoted
20 language.
Metropolitan charged the Water
21 Authority for wheeling was based on an Disputed that the Court of Appeal’s
unlawful rate, there was a breach of the language has bearing on any issue other
22 amended exchange agreement providing than the Water Stewardship Rate. Further
for future prices ‘equal to the charge or disputed that the Water Stewardship Rate
23 charges set by Metropolitan's Board of presents a live controversy in these cases.
Directors pursuant to applicable law and Metropolitan has paid all amounts for its
24
regulation and generally applicable to prior inclusion of the Water Stewardship
25 the conveyance of water by Metropolitan Rate in its transportation rates for the years
on behalf of its member agencies.’” (Ex. at issue. The parties’ corresponding claims
26 5, SDCWA I, supra, 12 Cal.App.5th at p. and the Water Authority’s motion are moot.
1154.)
27
28 -4-
MANATT, PHELPS &
METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT
PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 The Water Authority’s undisputed Metropolitan’s response and supporting
material facts and supporting evidence:
2 evidence:
3 In SDCWA I, the Court of Appeal stated Undisputed that the Court of Appeal
12. that “the evidence sufficiently decision in SDCWA I includes the quoted
4 establishes a violation of the contractual language.
price term, not just the wheeling rate,
5 and actionable injury by payment of a
water stewardship rate unrelated to the
6
transportation services provided.” (Ex.
7 5, SDCWA I, supra, 12 Cal.App.5th at p.
1154.)
8 In SDCWA II, the Court of Appeal Undisputed that the Court of Appeal
13. stated: “In its 2010 and 2012 actions, the decision in SDCWA II includes the quoted
9 Water Authority’s requests for language.
mandamus were predicated on a claim Disputed that the Court of Appeal’s
10
that Metropolitan failed to act as language has bearing on any issue other
11 required by law in determining ‘fair than the Water Stewardship Rate. Further
compensation’ for a wheeler’s use of an disputed that the Water Stewardship Rate
12 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
13 Wheeling Statutes and the parties’ prior inclusion of the Water Stewardship
14 exchange agreement under which Rate in its transportation rates for the years
Metropolitan had a duty to calculate at issue. The parties’ corresponding claims
15 water rates pursuant to applicable law and the Water Authority’s motion are moot.
and regulation.” (Ex. 8, SDCWA II,
16 supra, 2021 WL 4272331, at p. *7.)
The Court of Appeal stated: “Thus, the Undisputed that the Court of Appeal
17 14. writ properly compels Metropolitan to decision in SDCWA II includes the quoted
perform its clear and present legal language.
18
obligation, pursuant to Water Code Disputed that the Court of Appeal’s
19 sections 1810 and 1812, requiring the language has bearing on any issue other
owner of a water conveyance facility to than the Water Stewardship Rate. Further
20 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.
21
the benefit of the Water Authority, Metropolitan has paid all amounts for its
22 which is an entity entitled to use the prior inclusion of the Water Stewardship
facilities upon the payment of fair Rate in its transportation rates for the years
23 compensation.” (Ex. 8, SDCWA II, at issue. The parties’ corresponding claims
supra, 2021 WL 4272331, at p. *8.) and the Water Authority’s motion are moot.
24 Water Code section 1811, subdivision Undisputed that the Water Code includes
15. (c), defines “fair compensation” as the quoted language.
25
“including reasonable credit for any Disputed that the Water Authority is entitled
26 offsetting benefits for the use of the to a credit for offsetting benefits for the
conveyance system.” (See Ex. 9 at pp. multiple reasons stated in Metropolitan’s
27 6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex. pending motion for summary adjudication
28 -5-
MANATT, PHELPS &
METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT
PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 The Water Authority’s undisputed Metropolitan’s response and supporting
material facts and supporting evidence:
2 evidence:
3 13.) and in its opposition to the Water
Authority’s motion.
4 In SDCWA I, the Court of Appeal stated: Undisputed that the Court of Appeal
16. “Metropolitan has made several decision in SDCWA I includes the quoted
5 assertions on appeal denying an language.
enforceable contract and actionable Disputed that the language has preclusive
6 effect as to Metropolitan’s cross-claims and
breach but none is persuasive.” (Ex. 5,
SDCWA I, supra, 12 Cal.App.5th at p. affirmative defenses in these cases. The
7 portion of SDCWA I that the Water
1154; see also Ex. 4 at pp. 114–130.) Authority cites mentions only one defense,
8 illegality, which Metropolitan has not
pleaded in these cases. SDCWA I, 12 Cal.
9 App. 5th at 1154. The Water Authority also
relies on Metropolitan’s opening brief on
10 appeal in the 2010/2012 Actions. But the
entire section of the brief the Water
11 Authority cites also focuses on a defense not
at issue in these cases (illegality) and other
12 issues that are not embraced by the cross-
claims and affirmative defenses at issue in
13 the motion. (See SD Ex. 4, pp. 114-30.) In
addition, a party’s appellate brief does not
14 have preclusive effect on a later case.
15 For the reasons stated in Metropolitan’s
opposition to the motion, the cross-claims
16 and defenses at issue in these cases rely on
additional factual allegations that were not
17
at issue in the earlier cases, including the
18 Water Authority’s new allegations about
offsetting benefits and the Water
19 Authority’s prior representations or silence
on offsetting benefits during contract
20 negotiations and performance. (See, e.g.,
Answers ¶¶ 11-12, 34-49.) The Water
21
Authority can thus not meet the identical
22 issue element of issue preclusion. See Key v.
Tyler, 34 Cal. App. 5th 505, 534 (2019), as
23 modified on denial of reh’g (May 7, 2019)
(“The identical issue requirement for issue
24 preclusion addresses whether identical
25 factual allegations are at stake, ‘not whether
the ultimate issues or dispositions are the
26 same.’” (quoting Lucido v. Superior Court,
51 Cal. 3d 335, 342 (1990))).
27
28 -6-
MANATT, PHELPS &
METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT
PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
(CASE NO. CPF-14-514004)
1 The Water Authority’s undisputed Metropolitan’s response and supporting
material facts and supporting evidence:
2 evidence:
3 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.
same as previous ones.” (Ex. 5, SDCWA Disputed that SDCWA I has preclusive
5 I, supra, 12 Cal.App.5th at p. 1142; see effect on this issue for the reasons stated in
also Ex. 9 at pp. 7–10, 12–13.) Metropolitan’s opposition to the motion.
6
7
Issue 3: Whether “Metropolitan’s second cause of action in its 2014 cross-complaint, for
8 declaratory relief regarding offsetting benefits, is barred because Metropolitan has an enforceable
duty under the Wheeling Statutes and the Exchange Agreement to charge no more than ‘fair
9 compensation,’ which is defined as ‘including reasonable credit for any offsetting benefits for the
use of the conveyance system.’ (Wat. Code, § 1811, subd. (c).)”
10
The Water Authority’s undisputed Metropolitan’s response and supporting
11 material facts and supporting evidence:
evidence:
12 Paragraph 5.2 of the 2003 Amended and Undisputed.
18. Restated Exchange Agreement states that
13
“the Price shall be equal to the charge or
14 charges set by Metropolitan’s Board of
Directors pursuant to applicable law and
15 regulation and generally applicable to
the conveyance of water by Metropolitan
16 on behalf of its member agencies.” (Ex.
17 3, ¶ 5.2.)
In SDCWA I, the Court of Appeal stated: Dis
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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 MANATT, PHELPS & PHILLIPS, LLP Exempt from filing fee pursuant to Barry W. Lee (SBN 88685) Government Code § 6103 2 Justin Jones Rodriguez (SBN 279080) One Embarcadero Center, 30th Floor ELECTRONICALLY 3 San Francisco, California 94111 F I L E D Telephone: (415) 291-7450 Superior Court of California, 4 Facsimile: (415) 291-7474 County of San Francisco Email: bwlee@manatt.com 03/21/2022 5 Email: jjrodriguez@manatt.com Clerk of the Court BY: YOLANDA TABO-RAMIREZ 6 THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA Deputy Clerk Marcia Scully (SBN 80648) 7 Heather C. Beatty (SBN 161907) Patricia J. Quilizapa (SBN 233745) 8 700 North Alameda Street Los Angeles, CA 90012-2944 9 Telephone: (213) 217-6834 Facsimile: (213) 217-6890 10 Email: hbeatty@mwdh2o.com 11 Attorneys for Respondent, Defendant, and Cross-Complainant THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA 12 Additional counsel listed on following page 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 FOR THE COUNTY OF SAN FRANCISCO 16 SAN DIEGO COUNTY WATER Case No. CPF-14-514004; consolidated with AUTHORITY, Case Nos. CPF-16-515282 & CPF-18- 17 516389 Petitioner and Plaintiff, 18 Assigned for all purposes to the v. Hon. Anne-Christine Massullo, Dept. 306 19 THE METROPOLITAN WATER DISTRICT METROPOLITAN WATER DISTRICT 20 OF SOUTHERN CALIFORNIA, ALL OF SOUTHERN CALIFORNIA’S PERSONS INTERESTED IN THE OPPOSITION TO THE WATER 21 VALIDITY OF THE RATES ADOPTED BY AUTHORITY’S SEPARATE THE METROPOLITAN WATER DISTRICT STATEMENT FILED IN SUPPORT OF 22 OF SOUTHERN CALIFORNIA ON APRIL 8, MOTION FOR SUMMARY 2014 TO BE EFFECTIVE JANUARY 1, 2015 ADJUDICATION (2014 ACTION) 23 AND JANUARY 1, 2016; and DOES 1-10, [Filed concurrently with (1) opposition; (2) 24 Respondents and Defendants. appendix of evidence; (3) request for judicial notice; (4) response to request for judicial 25 notice; (5) objections to evidence; (6) proposed order re objections.] 26 Hearing Date: April 13, 2022, 2:00 p.m. 27 28 MANATT, PHELPS & METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, 2 Respondent, Defendant and Cross- 3 Complainant, 4 vs. 5 SAN DIEGO COUNTY WATER AUTHORITY, 6 Petitioner, Plaintiff and Cross- 7 Defendant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- MANATT, PHELPS & METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 MILLER BARONDESS LLP Mira Hashmall (SBN 216842) 2 1999 Avenue of the Stars, Suite 1000 Los Angeles, California 90067 3 Telephone: 310-552-4400 Facsimile: 310-552-8400 4 Email: mhashmall@millerbarondess.com 5 MORGAN, LEWIS & BOCKIUS LLP Colin C. West (SBN 184095) 6 One Market, Spear Street Tower San Francisco, California 94105-1596 7 Telephone: (415) 422-1000 Facsimile: (415) 422-1101 8 Email: colin.west@morganlewis.com 9 Attorneys for Respondent, Defendant, and Cross-Complainant THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- MANATT, PHELPS & METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 TABLE OF CONTENTS 2 Page 3 I. METROPOLITAN’S RESPONSES TO THE WATER AUTHORITY’S FACTS ........... 1 4 A. Issue 1 ..................................................................................................................... 1 B. Issues 2-15 ............................................................................................................... 3 5 C. Issues 16-25 ........................................................................................................... 50 6 D. Issues 26-27 ........................................................................................................... 60 7 E. Issue 28 ................................................................................................................. 62 F. Issue 29 ................................................................................................................. 63 8 G. Issues 30-32 ........................................................................................................... 64 9 H. Issues 33-34 ........................................................................................................... 82 10 I. Issues 35-36 ........................................................................................................... 84 II. METROPOLITAN’S ADDITIONAL MATERIAL FACTS ........................................... 85 11 A. Issue 1 ................................................................................................................... 85 12 B. Issues 2–15 ............................................................................................................ 97 13 C. Issues 16–25 ........................................................................................................ 100 D. Issues 26–27 ........................................................................................................ 103 14 E. Issue 28 ............................................................................................................... 103 15 F. Issue 29 ............................................................................................................... 103 16 G. Issues 30–32 ........................................................................................................ 104 H. Issues 33–34 ........................................................................................................ 104 17 I. Issues 35–36 ........................................................................................................ 105 18 19 20 21 22 23 24 25 26 27 28 MANATT, PHELPS & PHILLIPS, LLP -i- ATTORNEYS AT LAW SAN FRANCISCO 1 In support of Respondent, Defendant, and Cross-Complainant Metropolitan Water District 2 of Southern California (“Metropolitan”)’s opposition to Petitioner, Plaintiff, and Cross-Defendant 3 San Diego County Water Authority (“Water Authority”)’s motion for summary adjudication, 4 Metropolitan submits the following responses and additional material facts to San Diego’s 5 separate statement: 6 I. METROPOLITAN’S RESPONSES TO THE WATER AUTHORITY’S FACTS 7 A. Issue 1 8 Issue 1: Whether “Metropolitan’s first cause of action in its 2014 cross-complaint, for declaratory relief regarding the Water Stewardship Rate, is barred by issue preclusion.” 9 The Water Authority’s undisputed Metropolitan’s response and supporting 10 material facts and supporting evidence: 11 evidence: On April 24, 2014, this Court issued its Undisputed that the Court issued a statement 12 1. “Statement of Decision on Rate Setting of decision. Challenges” in CPF-10-510830 and Disputed that the statement of decision in 13 CPF-12-512466 (the “prior cases”). (Ex. the 2010/2012 Actions has preclusive effect 1.) on the issues identified in the Water 14 Authority’s motion. As explained in Metropolitan’s opposition brief, the Water 15 Authority bears the burden on issue preclusion, but has failed to analyze the 16 elements for preclusion in the motion. See Hong Sang Mkt., Inc. v. Peng, 20 Cal. App. 17 5th 474, 489 (2018) (“A party who asserts claim or issue preclusion as a bar to further 18 litigation bears the burden of proving that the requirements of the doctrine are 19 satisfied.” (citing Vella v. Hudgins, 20 Cal. 3d 251, 257 (1977))). Here, multiple 20 elements of preclusion, including the identical issues element, are not met for the 21 reasons stated in Metropolitan’s brief. 22 In addition, a trial court ruling lacks preclusive effect if properly appealed and 23 the Court of Appeal does not embrace the grounds of the appeal. See Samara v. Matar, 24 5 Cal. 5th 322, 334 (2018) (“we now 25 conclude that a ground reached by the trial court and properly challenged on appeal, but 26 not embraced by the appellate court’s decision, should not affect the judgment’s 27 preclusive effect.”). 28 -1- MANATT, PHELPS & METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 The Water Authority’s undisputed Metropolitan’s response and supporting material facts and supporting evidence: 2 evidence: 3 On August 28, 2015, this Court issued its Undisputed that the Court issued a statement 2. second “Statement of Decision” in the of decision. 4 prior cases. (Ex. 2.) Disputed that the statement of decision in the 2010/2012 Actions has preclusive effect 5 on the issues identified in the Water Authority’s motion. As explained in 6 Metropolitan’s opposition brief, the Water Authority bears the burden on issue 7 preclusion, but has failed to analyze the elements for preclusion in the motion. See 8 Hong Sang Mkt., Inc. v. Peng, 20 Cal. App. 5th 474, 489 (2018) (“A party who asserts 9 claim or issue preclusion as a bar to further litigation bears the burden of proving that 10 the requirements of the doctrine are satisfied.” (citing Vella v. Hudgins, 20 Cal. 11 3d 251, 257 (1977))). Here, multiple elements of preclusion, including the 12 identical issues element, are not met for the reasons stated in Metropolitan’s brief. 13 In addition, a trial court ruling lacks 14 preclusive effect if properly appealed and the Court of Appeal does not embrace the 15 grounds of the appeal. See Samara v. Matar, 5 Cal. 5th 322, 334 (2018) (“we now 16 conclude that a ground reached by the trial 17 court and properly challenged on appeal, but not embraced by the appellate court’s 18 decision, should not affect the judgment’s preclusive effect.”). 19 The California Court of Appeal, First Undisputed. 3. District, Division 3, issued its decision in 20 San Diego County Water Authority v. 21 Metropolitan Water Dist. of Southern California (2017) 12 Cal.App.5th 1124 22 (SDCWA I), as modified on denial of rehearing on July 18, 2017. (Ex. 5.) 23 On remand from SDCWA I, this Court Undisputed. 4. issued its Judgment in the prior cases on 24 or about August 13, 2020. (Ex. 6.) 25 On or about August 14, 2020, this Court Undisputed. 5. issued its Peremptory Writ of Mandate in 26 the prior cases. (Ex. 7.) On September 21, 2021, the California Undisputed. 27 6. Court of Appeal, First District, Division 28 -2- MANATT, PHELPS & METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 The Water Authority’s undisputed Metropolitan’s response and supporting material facts and supporting evidence: 2 evidence: 3 3, affirmed this Court’s Judgment and Peremptory Writ of Mandate in San 4 Diego County Water Authority v. Metropolitan Water Dist. of Southern 5 California (Cal. Ct. App., Sept. 21, 2021, No. A161144) 2021 WL 4272331 6 (SDCWA II). (Ex. 8.) 7 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 8 SDCWA I) regarding Metropolitan’s language. Water Stewardship Rate “concerned a Disputed that the Court of Appeal’s 9 particular category of costs (‘water language has bearing on any issue other 10 stewardship rate’) which did not vary than the Water Stewardship Rate. Further from year to year”; that “there was no disputed that the Water Stewardship Rate 11 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 12 year.” (Ex. 8 at p. *5.) prior inclusion of the Water Stewardship Rate in its transportation rates for the years 13 at issue. The parties’ corresponding claims 14 and the Water Authority’s motion are moot. 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 15 believes that in some future rate year it language. 16 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 17 costs in its wheeling rate or the than the Water Stewardship Rate. Further 18 transportation rates charged under the disputed that the Water Stewardship Rate exchange agreement, thereby presents a live controversy in these cases. 19 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 20 assure compliance with its judgment.” Rate in its transportation rates for the years (Ex. 8 at p. *6.) at issue. The parties’ corresponding claims 21 and the Water Authority’s motion are moot. 22 B. Issues 2-15 23 Issue 2: Whether “Metropolitan has an enforceable duty under the Wheeling Statutes and the 24 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, § 25 1811, subd. (c).)” 26 27 28 -3- MANATT, PHELPS & METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 The Water Authority’s undisputed Metropolitan’s response and supporting material facts and supporting evidence: 2 evidence: 3 Paragraph 5.2 of the 2003 Amended and Undisputed. 9. Restated Exchange Agreement states that 4 “the Price shall be equal to the charge or charges set by Metropolitan’s Board of 5 Directors pursuant to applicable law and regulation and generally applicable to 6 the conveyance of water by Metropolitan 7 on behalf of its member agencies.” (Ex. 3, ¶ 5.2.) 8 In SDCWA I, the Court of Appeal stated: Disputed. 10. “A water agency’s payments to its 9 The Water Authority has omitted key members to encourage water language from the Court of Appeal decision conservation is outside the scope of in SDCWA I in order to create the 10 recoverable costs contemplated by the impression that the decision stands for a 11 wheeling statute,” and therefore, different proposition than the ones stated in Metropolitan’s “water stewardship rate the decision. The omitted text for instance, 12 used to fund conservation programs” is includes the Wheeling Statutes’ requirement not “recoverable as ‘fair compensation’ that there must be “unused capacity” in the 13 for use of the conveyance system.” (Ex. conveyance system in order for the 14 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 15 throughout Metropolitan’s motion for summary adjudication papers and in its 16 papers in opposition to this motion, the 17 parties’ Exchange Agreement is not a wheeling agreement for many reasons, 18 including because the exchange of water is not contingent on unused capacity. 19 In SDCWA I, the Court of Appeal further Undisputed that the Court of Appeal 11. stated that “to the extent that the price decision in SDCWA I includes the quoted 20 language. Metropolitan charged the Water 21 Authority for wheeling was based on an Disputed that the Court of Appeal’s unlawful rate, there was a breach of the language has bearing on any issue other 22 amended exchange agreement providing than the Water Stewardship Rate. Further for future prices ‘equal to the charge or disputed that the Water Stewardship Rate 23 charges set by Metropolitan's Board of presents a live controversy in these cases. Directors pursuant to applicable law and Metropolitan has paid all amounts for its 24 regulation and generally applicable to prior inclusion of the Water Stewardship 25 the conveyance of water by Metropolitan Rate in its transportation rates for the years on behalf of its member agencies.’” (Ex. at issue. The parties’ corresponding claims 26 5, SDCWA I, supra, 12 Cal.App.5th at p. and the Water Authority’s motion are moot. 1154.) 27 28 -4- MANATT, PHELPS & METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 The Water Authority’s undisputed Metropolitan’s response and supporting material facts and supporting evidence: 2 evidence: 3 In SDCWA I, the Court of Appeal stated Undisputed that the Court of Appeal 12. that “the evidence sufficiently decision in SDCWA I includes the quoted 4 establishes a violation of the contractual language. price term, not just the wheeling rate, 5 and actionable injury by payment of a water stewardship rate unrelated to the 6 transportation services provided.” (Ex. 7 5, SDCWA I, supra, 12 Cal.App.5th at p. 1154.) 8 In SDCWA II, the Court of Appeal Undisputed that the Court of Appeal 13. stated: “In its 2010 and 2012 actions, the decision in SDCWA II includes the quoted 9 Water Authority’s requests for language. mandamus were predicated on a claim Disputed that the Court of Appeal’s 10 that Metropolitan failed to act as language has bearing on any issue other 11 required by law in determining ‘fair than the Water Stewardship Rate. Further compensation’ for a wheeler’s use of an disputed that the Water Stewardship Rate 12 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 13 Wheeling Statutes and the parties’ prior inclusion of the Water Stewardship 14 exchange agreement under which Rate in its transportation rates for the years Metropolitan had a duty to calculate at issue. The parties’ corresponding claims 15 water rates pursuant to applicable law and the Water Authority’s motion are moot. and regulation.” (Ex. 8, SDCWA II, 16 supra, 2021 WL 4272331, at p. *7.) The Court of Appeal stated: “Thus, the Undisputed that the Court of Appeal 17 14. writ properly compels Metropolitan to decision in SDCWA II includes the quoted perform its clear and present legal language. 18 obligation, pursuant to Water Code Disputed that the Court of Appeal’s 19 sections 1810 and 1812, requiring the language has bearing on any issue other owner of a water conveyance facility to than the Water Stewardship Rate. Further 20 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. 21 the benefit of the Water Authority, Metropolitan has paid all amounts for its 22 which is an entity entitled to use the prior inclusion of the Water Stewardship facilities upon the payment of fair Rate in its transportation rates for the years 23 compensation.” (Ex. 8, SDCWA II, at issue. The parties’ corresponding claims supra, 2021 WL 4272331, at p. *8.) and the Water Authority’s motion are moot. 24 Water Code section 1811, subdivision Undisputed that the Water Code includes 15. (c), defines “fair compensation” as the quoted language. 25 “including reasonable credit for any Disputed that the Water Authority is entitled 26 offsetting benefits for the use of the to a credit for offsetting benefits for the conveyance system.” (See Ex. 9 at pp. multiple reasons stated in Metropolitan’s 27 6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex. pending motion for summary adjudication 28 -5- MANATT, PHELPS & METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 The Water Authority’s undisputed Metropolitan’s response and supporting material facts and supporting evidence: 2 evidence: 3 13.) and in its opposition to the Water Authority’s motion. 4 In SDCWA I, the Court of Appeal stated: Undisputed that the Court of Appeal 16. “Metropolitan has made several decision in SDCWA I includes the quoted 5 assertions on appeal denying an language. enforceable contract and actionable Disputed that the language has preclusive 6 effect as to Metropolitan’s cross-claims and breach but none is persuasive.” (Ex. 5, SDCWA I, supra, 12 Cal.App.5th at p. affirmative defenses in these cases. The 7 portion of SDCWA I that the Water 1154; see also Ex. 4 at pp. 114–130.) Authority cites mentions only one defense, 8 illegality, which Metropolitan has not pleaded in these cases. SDCWA I, 12 Cal. 9 App. 5th at 1154. The Water Authority also relies on Metropolitan’s opening brief on 10 appeal in the 2010/2012 Actions. But the entire section of the brief the Water 11 Authority cites also focuses on a defense not at issue in these cases (illegality) and other 12 issues that are not embraced by the cross- claims and affirmative defenses at issue in 13 the motion. (See SD Ex. 4, pp. 114-30.) In addition, a party’s appellate brief does not 14 have preclusive effect on a later case. 15 For the reasons stated in Metropolitan’s opposition to the motion, the cross-claims 16 and defenses at issue in these cases rely on additional factual allegations that were not 17 at issue in the earlier cases, including the 18 Water Authority’s new allegations about offsetting benefits and the Water 19 Authority’s prior representations or silence on offsetting benefits during contract 20 negotiations and performance. (See, e.g., Answers ¶¶ 11-12, 34-49.) The Water 21 Authority can thus not meet the identical 22 issue element of issue preclusion. See Key v. Tyler, 34 Cal. App. 5th 505, 534 (2019), as 23 modified on denial of reh’g (May 7, 2019) (“The identical issue requirement for issue 24 preclusion addresses whether identical 25 factual allegations are at stake, ‘not whether the ultimate issues or dispositions are the 26 same.’” (quoting Lucido v. Superior Court, 51 Cal. 3d 335, 342 (1990))). 27 28 -6- MANATT, PHELPS & METROPOLITAN’S OPPOSITION TO THE WATER AUTHORITY’S SEPARATE STATEMENT IN SUPPORT PHILLIPS, LLP OF MOTION FOR SUMMARY ADJUDICATION ATTORNEYS AT LAW SAN FRANCISCO (CASE NO. CPF-14-514004) 1 The Water Authority’s undisputed Metropolitan’s response and supporting material facts and supporting evidence: 2 evidence: 3 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. same as previous ones.” (Ex. 5, SDCWA Disputed that SDCWA I has preclusive 5 I, supra, 12 Cal.App.5th at p. 1142; see effect on this issue for the reasons stated in also Ex. 9 at pp. 7–10, 12–13.) Metropolitan’s opposition to the motion. 6 7 Issue 3: Whether “Metropolitan’s second cause of action in its 2014 cross-complaint, for 8 declaratory relief regarding offsetting benefits, is barred because Metropolitan has an enforceable duty under the Wheeling Statutes and the Exchange Agreement to charge no more than ‘fair 9 compensation,’ which is defined as ‘including reasonable credit for any offsetting benefits for the use of the conveyance system.’ (Wat. Code, § 1811, subd. (c).)” 10 The Water Authority’s undisputed Metropolitan’s response and supporting 11 material facts and supporting evidence: evidence: 12 Paragraph 5.2 of the 2003 Amended and Undisputed. 18. Restated Exchange Agreement states that 13 “the Price shall be equal to the charge or 14 charges set by Metropolitan’s Board of Directors pursuant to applicable law and 15 regulation and generally applicable to the conveyance of water by Metropolitan 16 on behalf of its member agencies.” (Ex. 17 3, ¶ 5.2.) In SDCWA I, the Court of Appeal stated: Dis