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1 KEKER, VAN NEST & PETERS LLP
JOHN W. KEKER - # 49092
2 jkeker@keker.com
DAN JACKSON - # 216091 ELECTRONICALLY
3 djackson@keker.com
WARREN A. BRAUNIG - # 243884 F I L E D
4 wbraunig@keker.com Superior Court of California,
County of San Francisco
NICHOLAS S. GOLDBERG - # 273614
5 ngoldberg@keker.com 03/21/2022
633 Battery Street Clerk of the Court
BY: YOLANDA TABO-RAMIREZ
6 San Francisco, CA 94111-1809 Deputy Clerk
Telephone: (415) 391-5400
7 Facsimile: (415) 397-7188
8 MARK J. HATTAM - # 173667
mhattam@sdcwa.org
9 General Counsel
SAN DIEGO COUNTY WATER AUTHORITY
10 4677 Overland Avenue
San Diego, CA 92123-1233
11 Telephone: (858) 522-6791
Facsimile: (858) 522-6566
12
Attorneys for Petitioner, 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 OPPOSITION TO
21 METROPOLITAN WATER DISTRICT OF
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA’S MOTION
22 SOUTHERN CALIFORNIA; ALL FOR SUMMARY ADJUDICATION
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
WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION
Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389
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1 TABLE OF CONTENTS
2 Page
3
4 I. INTRODUCTION .......................................................................................................... 5
5 II. BACKGROUND ............................................................................................................ 7
6 A. This Court rejected Metropolitan’s arguments before and during Phase I. ............ 7
7 B. This Court also rejected Metropolitan’s arguments in Phase II. ............................ 8
8 C. The Court of Appeal further rejected Metropolitan’s arguments in SDCWA
I......................................................................................................................... 12
9
D. The Court of Appeal forcefully reiterated its rejection of Metropolitan’s
10 arguments in SDCWA II and, most recently, SDCWA III. ................................... 12
11 III. ARGUMENT................................................................................................................ 14
12 A. The Court should deny Metropolitan’s motion regarding breach of contract
and fair compensation (Metropolitan’s Issues 1 & 2). ........................................ 14
13
B. The Court should deny Metropolitan’s motion for judicial estoppel (Issues
14 3 & 4). ............................................................................................................... 19
15 C. The Court should deny Metropolitan’s motion for summary adjudication of
its own cause of action for declaratory relief regarding offsetting benefits
16 (Issue 5)............................................................................................................. 21
17 D. The Court should deny Metropolitan’s motion regarding reformation (Issue
6)....................................................................................................................... 22
18
IV. CONCLUSION............................................................................................................. 24
19
20
21
22
23
24
25
26
27
28
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1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 Beck Development Co. v. Southern Pacific Transportation Co.
(1996) 44 Cal.App.4th 1160................................................................................................ 23
5
6 Campbell v. Birch
(1942) 19 Cal.2d 778 ...................................................................................................... 6, 19
7
County of Imperial v. Superior Court
8 (2007) 152 Cal.App.4th 13.................................................................................................... 9
9 Denio v. City of Huntington Beach
(1946) 74 Cal.App.2d 424............................................................................................ passim
10
Hindin v. Rust
11
(2004) 118 Cal.App.4th 1247 .............................................................................................. 19
12
Jennifer K. v. Shane K.
13 (2020) 47 Cal.App.5th 558.............................................................................................. 6, 19
14 Meridian Financial Services, Inc. v. Phan
(2021) 67 Cal.App.5th 657 .......................................................................................... passim
15
Quantification Settlement Agreement Cases
16
(2011) Cal.App.4th 758 ........................................................................................................ 9
17
San Diego County Water Authority v. Metropolitan Water Dist. of Southern
18 California
(2017) 12 Cal.App.5th 1124......................................................................................... passim
19
San Diego County Water Authority v. Metropolitan Water Dist. of Southern
20 California
(Cal. Ct. App., Sept. 21, 2021, A161144) 2021 WL 4272331 ....................................... passim
21
22 San Diego County Water Authority v. Metropolitan Water Dist. of Southern
California
23 (Cal. Ct. App., Mar. 17, 2022, A162168) 2022 WL 806429 ......................................... passim
24 Shupe v. Nelson
(1967) 254 Cal.App.2d 693 ................................................................................................. 23
25
Statutes
26
Civil Code, § 3399.................................................................................................................... 24
27
28 Water Code § 1810 ............................................................................................................... 8, 20
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1 Water Code, § 1811 ........................................................................................................... passim
2 Water Code, § 1812 .............................................................................................................. 8, 21
3 Water Code, § 1813 .................................................................................................................... 8
4
Water Code, § 1814 .................................................................................................................... 8
5
Water Code Appendix, §§ 109–126.7 ......................................................................................... 9
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 I. INTRODUCTION
2 Metropolitan’s meritless motion for summary adjudication illustrates why these cases
3 have not yet settled, even though—as this Court noted at a recent case management conference—
4 they should settle in light of the guidance the parties have received from the Court of Appeal.
5 Instead of abiding by this Court’s binding rulings in the prior cases, as affirmed on appeal,
6 Metropolitan ignores those rulings completely, basing its entire motion on arguments that this
7 Court and the Court of Appeal have repeatedly rejected. The history of the prior litigation
8 confirms that this Court should deny Metropolitan’s motion in its entirety because the two
9 assertions on which it is based are not only false, but barred by collateral estoppel.
10 First, Metropolitan asserts that the price term of the Exchange Agreement (Ex. 3, ¶ 5.2)1
11 is not subject to the Wheeling Statutes’ definition of “fair compensation.” (Wat. Code, § 1811,
12 subd. (c).) But this Court and the Court of Appeal have rejected that argument repeatedly,
13 explicitly applying the statutory “fair compensation” standard to the Exchange Agreement. Those
14 rulings are binding. (See San Diego County Water Authority v. Metropolitan Water Dist. of
15 Southern California (2017) 12 Cal.App.5th 1124, 1135–1137, 1144, 1150–1151, 1154 (SDCWA
16 I); San Diego County Water Authority v. Metropolitan Water Dist. of Southern California (Sept.
17 21, 2021, A161144 [nonpub. opn.]) 2021 WL 4272331, *5–10 (SDCWA II); see also MPA re
18 Water Authority’s Motions for Summary Adjudication (Feb. 22, 2022) (Water Authority MSA).)
19 Indeed, on March 17, 2022, just a few days before this brief was filed, the Court of Appeal
20 affirmed this Court’s ruling that the Water Authority prevailed in the prior cases because, among
21 other results, the Water Authority “obtained rulings, affirmed on appeal, that Metropolitan
22 breached the Exchange Agreement by violating the Wheeling Statutes.” (San Diego County
23 Water Authority v. Metropolitan Water Dist. of Southern California (Mar. 17, 2022, A162168
24 [nonpub. opn.]) 2022 WL 806429, *7 (SDCWA III), emphasis added.) Because the Wheeling
25 Statutes explicitly require reasonable credit for offsetting benefits, that requirement likewise
26 applies under the Exchange Agreement’s price term. (Wat. Code, § 1811, subd. (c).)
27 1
“Ex. [number]” refers to the exhibits to the Declaration of Dan Jackson in support of the Water
28 Authority’s motion for summary adjudication; “Ex. [letter]” refers to the exhibits to the
Declaration of Julia L. Greenberg filed herewith. “Met. App.” refers to Metropolitan’s Appendix.
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1 Second, Metropolitan asserts that, as purported consideration for a $235 million
2 appropriation from the State (not from Metropolitan) to line the earthen All-American and
3 Coachella Canals, and for the water conserved as a result (canal-lining water), the Water
4 Authority agreed to pay Metropolitan’s excessive conveyance charges—even after the five-year
5 period specified in the Exchange Agreement.2 But Metropolitan spent much of its time in the
6 prior litigation attempting to prove that same counterfactual, which the trial judge, the Honorable
7 Curtis E.A. Karnow, definitively rejected. (Compare Ex. A at pp. 1–14 with Ex. 2 at pp. 1–25.)
8 Furthermore, Judge Karnow conclusively found that the testimony on this issue from
9 Metropolitan’s General Manager at the time, Jeffrey Kightlinger, was not credible, crediting the
10 testimony of the Water Authority’s General Manager at the time, Maureen Stapleton, instead:
11 I credit Stapleton’s testimony, and not contrary Kightlinger testimony. . . .
12 While Kightlinger’s testimony supports Met’s position, it is contradicted, and I
reject it. . . .
13
I rejected Kightlinger’s testimony that San Diego told him that San Diego would not
14 challenge Met’s existing rate structure and that the concession was material to Met.
15 (Ex. 2 at p. 8, fn. 12, p. 9 & p. 24, fn. 39.)
16 Judge Karnow, as the trier of fact, was “the exclusive judge of the weight of the evidence
17 and the credibility of the witnesses.” (Campbell v. Birch (1942) 19 Cal.2d 778, 789 (Campbell).)
18 His “determination of the veracity of a witness is final.” (Jennifer K. v. Shane K. (2020) 47
19 Cal.App.5th 558, 579 (Jennifer K.).) The Court of Appeal did not—indeed, could not (see
20 ibid.)—disturb Judge Karnow’s findings on these issues; on the contrary, it affirmed his findings
21 regarding the negotiation, interpretation, enforceability and breach of the Exchange Agreement:
22 “Metropolitan has made several assertions on appeal denying an enforceable contract and
23 2
As the Court of Appeal explained, the “Water Authority promised not to challenge conveyance
24 charges set by Metropolitan for five years following execution of the 2003 exchange agreement
but reserved the right thereafter to contest the rates as contrary to ‘applicable law and
25 regulation.’” (SDCWA I, supra, 12 Cal.App.5th at p. 1137, quoting Ex. 3, ¶ 5.2.) Specifically,
the parties agreed that, after an initial price of $253, “the Price shall be equal to the charge or
26 charges set by Metropolitan’s Board of Directors pursuant to applicable law and regulation and
generally applicable to the conveyance of water by Metropolitan on behalf of its member
27 agencies,” which the Water Authority agreed not to challenge for five years but, “after the
conclusion of the first five (5) Years, nothing herein shall preclude [the Water Authority] from
28 contesting in an administrative or judicial forum whether such charge or charges have been set in
accordance with applicable law and regulation.” (Ex. 3, ¶ 5.2.)
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1 actionable breach but none is persuasive.” (SDCWA I, supra, 12 Cal.App.5th at p. 1154.)
2 Metropolitan must not be allowed to relitigate these issues at the extraordinary and
3 unnecessary expense of the public served by each of these agencies. Metropolitan’s arguments
4 are barred by collateral estoppel, as shown below and in the Water Authority’s motion. Thus, the
5 Court should deny Metropolitan’s motion and grant the Water Authority’s motion instead.
6 II. BACKGROUND
7 Throughout the prior litigation, Metropolitan’s mantra was that the Wheeling Statutes do
8 not apply to the Exchange Agreement. But this Court and the Court of Appeal repeatedly rejected
9 that argument. Metropolitan also offered a revisionist history of the Exchange Agreement,
10 attempting to prove that the Water Authority agreed to Metropolitan’s conveyance charges, even
11 beyond the five-year period specified in the agreement, as purported consideration for the canal-
12 lining water and the associated appropriation from the State. But this Court conclusively rejected
13 that assertion, too. And, again, the Court of Appeal affirmed. Yet Metropolitan’s current motion
14 repeats exactly the same revisionist history that this Court already rejected, as shown in the
15 factual background provided below. Crucially, Metropolitan’s improper refusal to accept the
16 conclusive findings of this Court and the Court of Appeal does not establish any material disputes
17 of fact that would prevent this Court ruling on the legal issues presented by the parties’ motions.
18 On the contrary, the only facts material to these motions are indisputable, and the issues this
19 Court should decide now—specifically, those in the Water Authority’s motion—are issues of law.
20 A. This Court rejected Metropolitan’s arguments before and during Phase I.
21 Before the Phase I trial in the prior cases, 3 Metropolitan moved to “exclude all evidence
22 or argument” that the Wheeling Statutes apply to the Exchange Agreement, “including but not
23 limited to that the Exchange Agreement is a wheeling agreement or that the price of water
24 exchanged under the Exchange Agreement violates the Wheeling Statute.” (Ex. B at p. 3.)
25 Metropolitan based its argument on exactly the same theory of judicial estoppel, and exactly the
26 same purported evidence, as its current motion. (See id. at pp. 3–12.) As the Water Authority
27
3
28 At Metropolitan’s insistence, trial was bifurcated into two phases: the invalidity of its rates was
tried in Phase I; contract interpretation, breach, damages and defenses were tried in Phase II.
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1 explained in its opposition: “The issue in this case is not, and never has been, whether the
2 Exchange Agreement is a wheeling contract, subject to the procedural rules of the Wheeling
3 Statutes. The question here is whether MWD’s wheeling rates, and the Price charged to San
4 Diego under the Exchange Agreement, must comply with the Wheeling Statutes.” (Ex. C at p.
5 20.) The answer is Yes, as the Water Authority demonstrated in that brief and in its Phase I
6 pretrial briefs. (See id. at pp. 20–26; Ex. D at pp. 18–19, Ex. E at p. 25; Exs. F–J.)
7 This Court denied Metropolitan’s motion in limine on procedural grounds. (Ex. K at p. 5.)
8 Then the Court shot down the substance of Metropolitan’s argument from the bench,
9 explaining—as the Water Authority had—that the point is not “that this agreement is a wheeling
10 agreement,” but “that the rates that they’re paying are wheeling charges.” (Ex. L at p. 233:21-
11 24.) Indeed, the “Wheeling Statutes,” though colloquially referred to as such, never actually use
12 the word “wheeling,” much less draw any relevant distinction between “wheeling” and
13 “exchange.” (See Wat. Code, §§ 1810–1814.) On the contrary, the statutory purpose is “to
14 facilitate the voluntary sale, lease, or exchange of water.” (Id., § 1813, emphasis added.)
15 This Court also denied Metropolitan’s motion for summary adjudication on the contract
16 claim and rejected Metropolitan’s false assertion—which Metropolitan repeats, nevertheless, in
17 its current motion—that the Water Authority agreed to the price Metropolitan charged under the
18 Exchange Agreement. (See Ex. M at pp. 3–5.)
19 B. This Court also rejected Metropolitan’s arguments in Phase II.
20 Undeterred, Metropolitan continued to present the same arguments in Phase II. (See, e.g.,
21 Ex. A at pp. 1–14; Ex. N at pp. 38–39; Ex. O at pp. 2, 4–6, 8–13.) In addition to arguing, as
22 always, that the Exchange Agreement is not a wheeling agreement—and, as always, missing the
23 point—Metropolitan’s so-called “big picture” narrative in Phase II was its revisionist history that
24 the Water Authority agreed to Metropolitan’s conveyance charges, even beyond the five-year
25 period specified in the Exchange Agreement, as purported consideration for the canal-lining water
26 and the $235 million appropriation from the State. (Ex. A at pp. 1–14.) At trial, however, the
27 Water Authority disproved Metropolitan’s revisionist history, and this Court conclusively rejected
28 it. (See Ex. 2 at pp. 1–25; see also, e.g., Ex. P at pp. 6–23, 31–33; Ex. Q at pp. 23–34.)
8
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1 The operative Exchange Agreement (Ex. 3) arises from the 1998 Exchange Agreement
2 (Ex. 10). The 1998 Exchange Agreement, in turn, was the result of legislation empowering
3 Department of Water Resources Director David Kennedy to set a lawful wheeling rate for the
4 transfer of conserved water from the Imperial Irrigation District (IID) to the Water Authority.
5 (Ex. 12.) The rate Director Kennedy set included reasonable credit for offsetting benefits, and
6 Metropolitan agreed to that framework. (Ex. 14 at MWDRECORD2014_0009349; see also Ex.
7 13, nn. 3–4; Ex. R; Ex. S at MWD2010-00264778–79, 86–91.)
8 No water flowed under the 1998 Exchange Agreement, however, because—among other
9 issues ultimately resolved in the set of agreements known as the Quantification Settlement
10 Agreement (QSA)—Metropolitan was fighting against the underlying transfer in court. (See
11 County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 20–22; Quantification
12 Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 788.) Indeed, Metropolitan was so
13 determined to stop the transfer that it infamously gathered opposition research on public officials,
14 resulting in a statutory rebuke from an outraged Legislature and Governor, requiring Metropolitan
15 to “establish and operate an Office of Ethics.” (Wat. Code App., §§ 109-126.7.) And
16 Metropolitan also asserted that its receipt of the $235 million appropriation from the State to line
17 the canals was a condition precedent to the 1998 Exchange Agreement that might never be
18 satisfied because the State was in a budget crisis and might not provide the money. (See Ex. L at
19 pp. 1166:8–1170:19 (Slater), 1525:17–1526:24 (Stapleton).)
20 In order to overcome the delays caused by Metropolitan’s purported “insecurity over
21 funding and other issues related to implementing the canal lining,” and to finally get the
22 conserved IID and canal-lining water (Exchange Water) flowing through Metropolitan’s half-
23 empty aqueduct, the Water Authority proposed to “flip the obligation and assume the role of
24 implementing the canal lining project under the theory that if Met did not believe this was capable
25 of being implemented or that there were limitations, then San Diego would take that risk.” (Ex. L
26 at p. 1170:1-19 (Slater).) This was called “Option 2,” whereas “Option 1” was to continue
27 attempting to move forward under the 1998 Exchange Agreement despite the many roadblocks
28 Metropolitan had erected. Contrary to Metropolitan’s assertions, the Water Authority’s
9
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1 agreement to take responsibility for lining the canals (the Allocation Agreement) was no sinecure.
2 “Nobody wrote the Water Authority a check for $235 million at the time. We got the Allocation
3 Agreement and got the canal lining and with that came considerable risk in carrying out the
4 project, risks that many people at the time understood would face whichever party constructed the
5 All-American Canal.” (Id. at pp. 1068:18–1069:4 (Cushman).) Those included environmental
6 challenges and litigation, and the financial and engineering risks of building “one of the largest
7 canals in the world . . . through sand dunes” without knowing whether the State would come
8 through with the money or whether it would be enough (it wasn’t). (Id. at p. 1069:5-18.)
9 The Water Authority was also concerned about the discrepancy between the 30-year term
10 of the 1998 Exchange Agreement and the 45- to 75-year term of the Transfer Agreement. That
11 meant that when the 1998 Exchange Agreement expired—at which point the water transfers
12 would have ramped up to their maximum—the Water Authority would be at the mercy of
13 Metropolitan’s excessive and unlawful wheeling rate, instead of the lawful wheeling rate set by
14 Director Kennedy. (See Ex. L at pp. 1009:7–1010:1, 1068:7-17 (Cushman), 1164:3–1166:3
15 (Slater), 1525:17–1526:24 (Stapleton).) Thus, further litigation over Metropolitan’s wheeling rate
16 was inevitable and, under the 1998 Exchange Agreement, would occur when Metropolitan had
17 the Water Authority over an even bigger barrel. (See ibid.)
18 The Water Authority rightly believed that the rate set by Director Kennedy, which
19 included reasonable credit for offsetting benefits, “was a fair and equitable wheeling rate.” (Ex. L
20 at p. 1600:1-8 (Stapleton); see also, e.g., Ex. P at pp. 6–23, 31–33.) But the Water Authority
21 decided that agreeing to pay Metropolitan’s excessive wheeling rate for five years was “worth the
22 risk” if the Water Authority could limit its exposure by ensuring that, after five years, “the Water
23 Authority had the ability to contest the wheeling rate.” (Ex. L at pp. 1525:25–1530:13
24 (Stapleton).) Accordingly, the Water Authority retained the right to sue after five years to
25 reinstate a lawful wheeling rate, including reasonable credit for offsetting benefits.4
26
4
Contrary to Metropolitan’s suggestions, the Water Authority emphasized the requirement of
27 reasonable credit for offsetting benefits throughout both phases of the prior litigation. (See, e.g.,
Ex. L at pp. 41:18–45:15, 869:13–871:17; Ex. P at pp. 6–23, 31–33; Ex. T at pp. 47–48, 52–53.)
28 This Court did not rule on the issue of offsetting benefits in its Phase I decision because it
invalidated Metropolitan’s rates for other reasons. (See Ex. 1.) And the Court’s Phase II
10
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1 After hearing the witnesses’ testimony and considering the other evidence presented in
2 Phase II, Judge Karnow found in the Water Authority’s favor across the board. (Ex. 2 at pp. 1–
3 25.) In particular, Judge Karnow rejected Kightlinger’s revisionist history of the Exchange
4 Agreement relating to the canal-lining water. In his trial testimony, Kightlinger admitted that
5 members of Metropolitan’s own negotiating team had observed that, if the price was reduced due
6 to litigation, Metropolitan “would have already given up the canal lining water, the $235
7 million.” (Ex. L at pp. 1300:25–1301:2, emphasis added.) In order to avoid that outcome,
8 according to Kightlinger, the parties purportedly agreed that the Water Authority could not
9 challenge Metropolitan’s existing rate structure, even after the five-year period in the Exchange
10 Agreement. (Id. at pp. 1300:13–1305:7.) But that is false, as the Water Authorities’ witnesses
11 testified. Stapleton, in particular, testified that the Water Authority never agreed to any such
12 thing—exactly the opposite. (Id. at pp. 1525:25–1530:13, 1554:22–1555:14 (Stapleton).)
13 Judge Karnow explicitly and repeatedly “credit[ed] Stapleton’s testimony, and not
14 contrary Kightlinger testimony.” (Ex. 2 at p. 8, fn. 12.) “Kightlinger’s testimony . . . is
15 contradicted, and [Judge Karnow] reject[ed] it.” (Id. at p. 9.) Specifically, he “rejected
16 Kightlinger’s testimony that San Diego told him that San Diego would not challenge Met’s
17 existing rate structure and that the concession was material to Met.” (Id. at p. 24, fn. 39.)
18 Judge Karnow also rejected, yet again, Metropolitan’s contention that the Wheeling
19 Statutes’ definition of “fair compensation” does not apply to the price term of the Exchange
20 Agreement. In Phase I, Judge Karnow invalidated Metropolitan’s conveyance charges because
21 they exceed “fair compensation.” (Ex. 1 at pp. 49, 58–61, 65.) In Phase II, he found: “The same
22 logic applies to the Exchange Agreement.” (Ex. 2 at p. 13.) Metropolitan objected to that finding
23 on the basis that “a wheeling transaction is ‘radically different’ than the Exchange Agreement”
24 (Ex. O at p. 2)—an argument Metropolitan repeats verbatim in its current motion. (Met. MPA at
25 pp. 7, 11, 16). Judge Karnow rejected that argument. (See Ex. 2 at pp. 10, 13.)
26
27
damages award simply followed from its Phase I decision. (See Ex. 2 at pp. 1–25.) This Court
28 then declined to consider offsetting benefits on remand from the first appeal, but that decision
was limited to the prior cases, as this Court has recognized. (See Ex. 9 at pp. 7–10.)
11
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1 C. The Court of Appeal further rejected Metropolitan’s arguments in SDCWA I.
2 On appeal, Metropolitan argued that this Court’s “finding that Metropolitan’s
3 Transportation Rates were unlawful as to wheelers cannot translate into a breach of the Exchange
4 Agreement because the Exchange Agreement does not concern wheeling.” (Ex. 4 at pp. 120–
5 121.) The Court of Appeal rejected that Metropolitan argument, among many others:
6 Metropolitan has made several assertions on appeal denying an enforceable contract
and actionable breach but none is persuasive. The contract was not illegal at its
7 inception for including a variable price term that was ultimately found to contain an
unlawful rate component. Also, contrary to Metropolitan’s arguments, the evidence
8 sufficiently establishes a violation of the contractual price term, not just the
wheeling rate, and actionable injury is shown by payment of a water stewardship
9 rate unrelated to the transportation services provided.
10 (SDCWA I, supra, 12 Cal.App.5th at p. 1154, emphasis added.) As the Court of Appeal made
11 clear, Metropolitan’s “water stewardship rate was unlawfully charged for the conveyance of
12 water” and “there was a breach of the agreement in that respect” (ibid.) precisely because that rate
13 is not “recoverable as ‘fair compensation’” under the Wheeling Statutes. (Id. at p. 1151.)
14 In the Background section of its current brief, Metropolitan quotes SDCWA I’s discussion
15 of “some of the differences between wheeling and exchange agreements.” (Met. MPA at pp. 3–
16 4.) But Metropolitan misses the point. Although the parties “preferred an exchange agreement to
17 a wheeling agreement” for some purposes (SDCWA I, supra, 12 Cal.App.5th at p. 1136), they
18 agreed to a price term governed by (among other applicable laws) the Wheeling Statutes’
19 definition of “fair compensation.” (See id. at pp. 1137, 1144, 1150–1151, 1154.)
20 The Court of Appeal also agreed with this Court that the “Water Authority promised not
21 to challenge conveyance charges set by Metropolitan for five years following execution of the
22 2003 exchange agreement but reserved the right thereafter to contest the rates as contrary to
23 ‘applicable law and regulation.’” (SDCWA I, supra, 12 Cal.App.5th at p. 1137, quoting Ex. 3,
24 ¶ 5.2, emphasis added.) Thus, Metropolitan’s revisionist history to the contrary relating to the
25 canal-lining water is dead and buried. Metropolitan cannot revive it. (See ibid.; § II.B, supra.)
26 D. The Court of Appeal forcefully reiterated its rejection of Metropolitan’s arguments
in SDCWA II and, most recently, SDCWA III.
27
In SDCWA II, the Court of Appeal firmly rejected all of Metropolitan’s challenges to this
28
Court’s final judgment and peremptory writ of mandate, noting that Metropolitan’s persistence in
12
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1 “contravening our prior opinion [in SDCWA I] supports the trial court’s continuing jurisdiction to
2 assure compliance with its judgment.” (SDCWA II, supra, 2021 WL 4272331 at p. *6.) Further,
3 this Court’s writ properly granted the Water Authority’s requests for mandamus based on
4 Metropolitan’s failure to “act as required by law in determining ‘fair compensation’ for a
5 wheeler’s use of an owner’s water conveyance system for transporting water under both the
6 Wheeling Statutes and the parties’ exchange agreement under which Metropolitan had a duty to
7 calculate water rates pursuant to applicable law and regulation.” (Id. at p. *7, emphases added.)
8 Metropolitan has a “clear and present legal obligation” to “timely determine fair compensation for
9 use of its water conveyance services for the benefit of the Water Authority, which is an entity
10 entitled to use the facilities upon the payment of fair compensation.” (Id. at p. *8.) And that
11 obligation applies not only in the context of whatever Metropolitan chooses to call its “wheeling
12 rate,” but also to its “transportation rates” more generally—specifically including “the
13 transportation rates charged under the October 10, 2003 Exchange Agreement between
14 Metropolitan and the San Diego Water Authority.” (Id. at pp. *5–10.)
15 Most recently, in SDCWA III, the Court of Appeal affirmed that the Water Authority
16 prevailed in the prior cases, quoting this Court’s order at length, including the following:
17 Metropolitan claimed there was no basis under the contract to challenge the rate
structure because, pursuant to its interpretation of the contract, the Water Authority
18 never had any right to challenge Metropolitan’s existing, unamended rate structure.
The trial court found Metropolitan’s interpretation inconsistent and ‘irreconcilable
19 with the plain language of the contract,’ and the testimony of itswitness Jeffrey
Kightlinger ‘contradicted’ by other evidence. The trial court found that under
20 section 5.2 of the Exchange Agreement, the Water Authority was within its right to
contest whether Metropolitan’s rates and charges were consistent with applicable
21 law after five years. . . . The Water Authority [also] obtained rulings, affirmed on
appeal, that Metropolitan breached the Exchange Agreement by violating the
22 Wheeling Statutes . . . [and] vindicated ‘the policy of the state to facilitate the
voluntary sale, lease, or exchange of water or water rights in order to pro
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PEOPLE CENTER, INC. D/B/A RIPPLING, A DELAWARE VS. ASURE PAYROLL TAX MANAGEMENT LLC, A DELAWARE LLC ET AL
Jul 11, 2024 |
CGC24615613
Matter on the Law & Motion calendar for Thursday, July 11, 2024, Line 15. PLAINTIFF PEOPLE CENTER, INC. D/B/A RIPPLING's Motion For Preliminary Injunction. Plaintiff People Center, Inc. d/b/a Rippling's motion for a preliminary injunction is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 1:30 p.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
A & A GENERAL BUILDING CONSTRUCTION INC., A VS. ARLENE S. TASIM ET AL
Jul 12, 2024 |
CGC23609755
Matter on the Law & Motion calendar for Friday, July 12, 2024, Line 12. DEFENDANT ARLENE TASIM AND ALI TASIM'S Motion For Sanctions Against A A General Building Construction Inc. Pursuant To Code Of Civil Procedure Section 1281.99. Defendants and Cross-Complainants' unopposed Motion for Sanctions in the amount of $8350.00 is granted (CCP section 1281.99), payment to be made within 30 days of the filing of this order. Friday's Law & Motion Calendar will be called out of Dept. 301. Anyone intending to appear in person should report to Dept. 301. However, anyone intending to appear remotely should use the regular Zoom information for Dept. 302's Law & Motion Calendar for 9:30 a.m. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RCE)
Ruling
YOLANDA JONES ET AL VS. GENERAL MOTORS, LLC ET AL
Jul 10, 2024 |
CGC23609805
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 10. 2 - DEFENDANT GENERAL MOTORS, LLC's MOTION TO STRIKE 1ST Amended COMPLAINT. Off calendar. The Quezada declaration fails to show that the parties met and conferred "in person, by telephone, or by video conference" in compliance with CCP 435.5. The parties are ordered to comply with the code. The response to the complaint is now due August 7, 2024. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
EDWARD WESTERMAN VS. FTI CONSULTING, INC. ET AL
Jul 09, 2024 |
CGC24615152
Matter on the Law & Motion Calendar for Tuesday, July 9, 2024, Line 12. PLAINTIFF EDWARD WESTERMAN's Motion To Seal. Plaintiff's unopposed motion to seal is granted. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
CLEAR HOMES LLC, A NEW MEXICO LIMITED LIABILITY VS. BRENDAN MICHAEL WEE ET AL
Jul 11, 2024 |
CGC23607972
Real Property/Housing Court Law and Motion Calendar for July 11, 2024 line 2. DEFENDANT BRENDAN WEE, ERIKA HILTON MOTION FOR JUDGMENT ON THE PLEADINGS is Off Calendar - Per request of moving party. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
ELIANE DOS SANTOS VITAL, AN INDIVIDUAL ET AL VS. AMERICAN HONDA MOTOR CO., INC., A CALIFORNIA ET AL
Jul 12, 2024 |
CGC22601133
Matter on the Discovery Calendar for Friday, Jul-12-2024, Line 2, PLAINTIFFS ELIANE DOS SANTOS VITAL, AN INDIVIDUAL, and WIDES VITAL DA SILVA'S, AN INDIVIDUAL, Motion To Compel Further Responses To Plaintiffs Request For Production Of Documents, Set Two. Pro Tem Judge William Lynn, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: Parties to appear if the motion remains unresolved. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link (DISCOVERY, DEPARTMENT 302 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 302. Any party who contests a tentative ruling must send an email to williamclynn@gmail.com with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/JPT)
Ruling
Y.P. VS. WELLS FARGO & COMPANY, ET AL
Jul 10, 2024 |
CGC24613065
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 12. DEFENDANT EARL IGNACIO AND WELLS FARGO BANK, N.A.'s Motion To Compel Arbitration. Defendants Wells Fargo Bank, N.A. and Earl Ignacio's motion to compel arbitration and stay is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
MARY ELIZABETH LEMASTERS VS. SCHOENBERG FAMILY LAW GROUP P.C. ET AL
Jul 09, 2024 |
CGC22600572
Matter on the Law & Motion Calendar for Tuesday, July 9, 2024, Line 4. PLAINTIFF MARY LEMASTERS' MOTION FOR WITHDRAWAL OF ATTORNEY OF RECORD. Hearing required. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
JOHN P BERNARD VS. BMW OF NORTH AMERICA, LLC ET AL
Jul 10, 2024 |
CGC23608339
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 8. PLAINTIFF JOHN BERNARD's Motion For Award Of Attorneys Fees, Costs, And Expenses. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. In meantime, counsel shall meet and confer to resolve their differences. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Preview
1 KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 2 jkeker@keker.com DAN JACKSON - # 216091 ELECTRONICALLY 3 djackson@keker.com WARREN A. BRAUNIG - # 243884 F I L E D 4 wbraunig@keker.com Superior Court of California, County of San Francisco NICHOLAS S. GOLDBERG - # 273614 5 ngoldberg@keker.com 03/21/2022 633 Battery Street Clerk of the Court BY: YOLANDA TABO-RAMIREZ 6 San Francisco, CA 94111-1809 Deputy Clerk Telephone: (415) 391-5400 7 Facsimile: (415) 397-7188 8 MARK J. HATTAM - # 173667 mhattam@sdcwa.org 9 General Counsel SAN DIEGO COUNTY WATER AUTHORITY 10 4677 Overland Avenue San Diego, CA 92123-1233 11 Telephone: (858) 522-6791 Facsimile: (858) 522-6566 12 Attorneys for Petitioner, 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 OPPOSITION TO 21 METROPOLITAN WATER DISTRICT OF METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA’S MOTION 22 SOUTHERN CALIFORNIA; ALL FOR SUMMARY ADJUDICATION 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 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 TABLE OF CONTENTS 2 Page 3 4 I. INTRODUCTION .......................................................................................................... 5 5 II. BACKGROUND ............................................................................................................ 7 6 A. This Court rejected Metropolitan’s arguments before and during Phase I. ............ 7 7 B. This Court also rejected Metropolitan’s arguments in Phase II. ............................ 8 8 C. The Court of Appeal further rejected Metropolitan’s arguments in SDCWA I......................................................................................................................... 12 9 D. The Court of Appeal forcefully reiterated its rejection of Metropolitan’s 10 arguments in SDCWA II and, most recently, SDCWA III. ................................... 12 11 III. ARGUMENT................................................................................................................ 14 12 A. The Court should deny Metropolitan’s motion regarding breach of contract and fair compensation (Metropolitan’s Issues 1 & 2). ........................................ 14 13 B. The Court should deny Metropolitan’s motion for judicial estoppel (Issues 14 3 & 4). ............................................................................................................... 19 15 C. The Court should deny Metropolitan’s motion for summary adjudication of its own cause of action for declaratory relief regarding offsetting benefits 16 (Issue 5)............................................................................................................. 21 17 D. The Court should deny Metropolitan’s motion regarding reformation (Issue 6)....................................................................................................................... 22 18 IV. CONCLUSION............................................................................................................. 24 19 20 21 22 23 24 25 26 27 28 2 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160................................................................................................ 23 5 6 Campbell v. Birch (1942) 19 Cal.2d 778 ...................................................................................................... 6, 19 7 County of Imperial v. Superior Court 8 (2007) 152 Cal.App.4th 13.................................................................................................... 9 9 Denio v. City of Huntington Beach (1946) 74 Cal.App.2d 424............................................................................................ passim 10 Hindin v. Rust 11 (2004) 118 Cal.App.4th 1247 .............................................................................................. 19 12 Jennifer K. v. Shane K. 13 (2020) 47 Cal.App.5th 558.............................................................................................. 6, 19 14 Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657 .......................................................................................... passim 15 Quantification Settlement Agreement Cases 16 (2011) Cal.App.4th 758 ........................................................................................................ 9 17 San Diego County Water Authority v. Metropolitan Water Dist. of Southern 18 California (2017) 12 Cal.App.5th 1124......................................................................................... passim 19 San Diego County Water Authority v. Metropolitan Water Dist. of Southern 20 California (Cal. Ct. App., Sept. 21, 2021, A161144) 2021 WL 4272331 ....................................... passim 21 22 San Diego County Water Authority v. Metropolitan Water Dist. of Southern California 23 (Cal. Ct. App., Mar. 17, 2022, A162168) 2022 WL 806429 ......................................... passim 24 Shupe v. Nelson (1967) 254 Cal.App.2d 693 ................................................................................................. 23 25 Statutes 26 Civil Code, § 3399.................................................................................................................... 24 27 28 Water Code § 1810 ............................................................................................................... 8, 20 3 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 Water Code, § 1811 ........................................................................................................... passim 2 Water Code, § 1812 .............................................................................................................. 8, 21 3 Water Code, § 1813 .................................................................................................................... 8 4 Water Code, § 1814 .................................................................................................................... 8 5 Water Code Appendix, §§ 109–126.7 ......................................................................................... 9 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 I. INTRODUCTION 2 Metropolitan’s meritless motion for summary adjudication illustrates why these cases 3 have not yet settled, even though—as this Court noted at a recent case management conference— 4 they should settle in light of the guidance the parties have received from the Court of Appeal. 5 Instead of abiding by this Court’s binding rulings in the prior cases, as affirmed on appeal, 6 Metropolitan ignores those rulings completely, basing its entire motion on arguments that this 7 Court and the Court of Appeal have repeatedly rejected. The history of the prior litigation 8 confirms that this Court should deny Metropolitan’s motion in its entirety because the two 9 assertions on which it is based are not only false, but barred by collateral estoppel. 10 First, Metropolitan asserts that the price term of the Exchange Agreement (Ex. 3, ¶ 5.2)1 11 is not subject to the Wheeling Statutes’ definition of “fair compensation.” (Wat. Code, § 1811, 12 subd. (c).) But this Court and the Court of Appeal have rejected that argument repeatedly, 13 explicitly applying the statutory “fair compensation” standard to the Exchange Agreement. Those 14 rulings are binding. (See San Diego County Water Authority v. Metropolitan Water Dist. of 15 Southern California (2017) 12 Cal.App.5th 1124, 1135–1137, 1144, 1150–1151, 1154 (SDCWA 16 I); San Diego County Water Authority v. Metropolitan Water Dist. of Southern California (Sept. 17 21, 2021, A161144 [nonpub. opn.]) 2021 WL 4272331, *5–10 (SDCWA II); see also MPA re 18 Water Authority’s Motions for Summary Adjudication (Feb. 22, 2022) (Water Authority MSA).) 19 Indeed, on March 17, 2022, just a few days before this brief was filed, the Court of Appeal 20 affirmed this Court’s ruling that the Water Authority prevailed in the prior cases because, among 21 other results, the Water Authority “obtained rulings, affirmed on appeal, that Metropolitan 22 breached the Exchange Agreement by violating the Wheeling Statutes.” (San Diego County 23 Water Authority v. Metropolitan Water Dist. of Southern California (Mar. 17, 2022, A162168 24 [nonpub. opn.]) 2022 WL 806429, *7 (SDCWA III), emphasis added.) Because the Wheeling 25 Statutes explicitly require reasonable credit for offsetting benefits, that requirement likewise 26 applies under the Exchange Agreement’s price term. (Wat. Code, § 1811, subd. (c).) 27 1 “Ex. [number]” refers to the exhibits to the Declaration of Dan Jackson in support of the Water 28 Authority’s motion for summary adjudication; “Ex. [letter]” refers to the exhibits to the Declaration of Julia L. Greenberg filed herewith. “Met. App.” refers to Metropolitan’s Appendix. 5 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 Second, Metropolitan asserts that, as purported consideration for a $235 million 2 appropriation from the State (not from Metropolitan) to line the earthen All-American and 3 Coachella Canals, and for the water conserved as a result (canal-lining water), the Water 4 Authority agreed to pay Metropolitan’s excessive conveyance charges—even after the five-year 5 period specified in the Exchange Agreement.2 But Metropolitan spent much of its time in the 6 prior litigation attempting to prove that same counterfactual, which the trial judge, the Honorable 7 Curtis E.A. Karnow, definitively rejected. (Compare Ex. A at pp. 1–14 with Ex. 2 at pp. 1–25.) 8 Furthermore, Judge Karnow conclusively found that the testimony on this issue from 9 Metropolitan’s General Manager at the time, Jeffrey Kightlinger, was not credible, crediting the 10 testimony of the Water Authority’s General Manager at the time, Maureen Stapleton, instead: 11 I credit Stapleton’s testimony, and not contrary Kightlinger testimony. . . . 12 While Kightlinger’s testimony supports Met’s position, it is contradicted, and I reject it. . . . 13 I rejected Kightlinger’s testimony that San Diego told him that San Diego would not 14 challenge Met’s existing rate structure and that the concession was material to Met. 15 (Ex. 2 at p. 8, fn. 12, p. 9 & p. 24, fn. 39.) 16 Judge Karnow, as the trier of fact, was “the exclusive judge of the weight of the evidence 17 and the credibility of the witnesses.” (Campbell v. Birch (1942) 19 Cal.2d 778, 789 (Campbell).) 18 His “determination of the veracity of a witness is final.” (Jennifer K. v. Shane K. (2020) 47 19 Cal.App.5th 558, 579 (Jennifer K.).) The Court of Appeal did not—indeed, could not (see 20 ibid.)—disturb Judge Karnow’s findings on these issues; on the contrary, it affirmed his findings 21 regarding the negotiation, interpretation, enforceability and breach of the Exchange Agreement: 22 “Metropolitan has made several assertions on appeal denying an enforceable contract and 23 2 As the Court of Appeal explained, the “Water Authority promised not to challenge conveyance 24 charges set by Metropolitan for five years following execution of the 2003 exchange agreement but reserved the right thereafter to contest the rates as contrary to ‘applicable law and 25 regulation.’” (SDCWA I, supra, 12 Cal.App.5th at p. 1137, quoting Ex. 3, ¶ 5.2.) Specifically, the parties agreed that, after an initial price of $253, “the Price shall be equal to the charge or 26 charges set by Metropolitan’s Board of Directors pursuant to applicable law and regulation and generally applicable to the conveyance of water by Metropolitan on behalf of its member 27 agencies,” which the Water Authority agreed not to challenge for five years but, “after the conclusion of the first five (5) Years, nothing herein shall preclude [the Water Authority] from 28 contesting in an administrative or judicial forum whether such charge or charges have been set in accordance with applicable law and regulation.” (Ex. 3, ¶ 5.2.) 6 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 actionable breach but none is persuasive.” (SDCWA I, supra, 12 Cal.App.5th at p. 1154.) 2 Metropolitan must not be allowed to relitigate these issues at the extraordinary and 3 unnecessary expense of the public served by each of these agencies. Metropolitan’s arguments 4 are barred by collateral estoppel, as shown below and in the Water Authority’s motion. Thus, the 5 Court should deny Metropolitan’s motion and grant the Water Authority’s motion instead. 6 II. BACKGROUND 7 Throughout the prior litigation, Metropolitan’s mantra was that the Wheeling Statutes do 8 not apply to the Exchange Agreement. But this Court and the Court of Appeal repeatedly rejected 9 that argument. Metropolitan also offered a revisionist history of the Exchange Agreement, 10 attempting to prove that the Water Authority agreed to Metropolitan’s conveyance charges, even 11 beyond the five-year period specified in the agreement, as purported consideration for the canal- 12 lining water and the associated appropriation from the State. But this Court conclusively rejected 13 that assertion, too. And, again, the Court of Appeal affirmed. Yet Metropolitan’s current motion 14 repeats exactly the same revisionist history that this Court already rejected, as shown in the 15 factual background provided below. Crucially, Metropolitan’s improper refusal to accept the 16 conclusive findings of this Court and the Court of Appeal does not establish any material disputes 17 of fact that would prevent this Court ruling on the legal issues presented by the parties’ motions. 18 On the contrary, the only facts material to these motions are indisputable, and the issues this 19 Court should decide now—specifically, those in the Water Authority’s motion—are issues of law. 20 A. This Court rejected Metropolitan’s arguments before and during Phase I. 21 Before the Phase I trial in the prior cases, 3 Metropolitan moved to “exclude all evidence 22 or argument” that the Wheeling Statutes apply to the Exchange Agreement, “including but not 23 limited to that the Exchange Agreement is a wheeling agreement or that the price of water 24 exchanged under the Exchange Agreement violates the Wheeling Statute.” (Ex. B at p. 3.) 25 Metropolitan based its argument on exactly the same theory of judicial estoppel, and exactly the 26 same purported evidence, as its current motion. (See id. at pp. 3–12.) As the Water Authority 27 3 28 At Metropolitan’s insistence, trial was bifurcated into two phases: the invalidity of its rates was tried in Phase I; contract interpretation, breach, damages and defenses were tried in Phase II. 7 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 explained in its opposition: “The issue in this case is not, and never has been, whether the 2 Exchange Agreement is a wheeling contract, subject to the procedural rules of the Wheeling 3 Statutes. The question here is whether MWD’s wheeling rates, and the Price charged to San 4 Diego under the Exchange Agreement, must comply with the Wheeling Statutes.” (Ex. C at p. 5 20.) The answer is Yes, as the Water Authority demonstrated in that brief and in its Phase I 6 pretrial briefs. (See id. at pp. 20–26; Ex. D at pp. 18–19, Ex. E at p. 25; Exs. F–J.) 7 This Court denied Metropolitan’s motion in limine on procedural grounds. (Ex. K at p. 5.) 8 Then the Court shot down the substance of Metropolitan’s argument from the bench, 9 explaining—as the Water Authority had—that the point is not “that this agreement is a wheeling 10 agreement,” but “that the rates that they’re paying are wheeling charges.” (Ex. L at p. 233:21- 11 24.) Indeed, the “Wheeling Statutes,” though colloquially referred to as such, never actually use 12 the word “wheeling,” much less draw any relevant distinction between “wheeling” and 13 “exchange.” (See Wat. Code, §§ 1810–1814.) On the contrary, the statutory purpose is “to 14 facilitate the voluntary sale, lease, or exchange of water.” (Id., § 1813, emphasis added.) 15 This Court also denied Metropolitan’s motion for summary adjudication on the contract 16 claim and rejected Metropolitan’s false assertion—which Metropolitan repeats, nevertheless, in 17 its current motion—that the Water Authority agreed to the price Metropolitan charged under the 18 Exchange Agreement. (See Ex. M at pp. 3–5.) 19 B. This Court also rejected Metropolitan’s arguments in Phase II. 20 Undeterred, Metropolitan continued to present the same arguments in Phase II. (See, e.g., 21 Ex. A at pp. 1–14; Ex. N at pp. 38–39; Ex. O at pp. 2, 4–6, 8–13.) In addition to arguing, as 22 always, that the Exchange Agreement is not a wheeling agreement—and, as always, missing the 23 point—Metropolitan’s so-called “big picture” narrative in Phase II was its revisionist history that 24 the Water Authority agreed to Metropolitan’s conveyance charges, even beyond the five-year 25 period specified in the Exchange Agreement, as purported consideration for the canal-lining water 26 and the $235 million appropriation from the State. (Ex. A at pp. 1–14.) At trial, however, the 27 Water Authority disproved Metropolitan’s revisionist history, and this Court conclusively rejected 28 it. (See Ex. 2 at pp. 1–25; see also, e.g., Ex. P at pp. 6–23, 31–33; Ex. Q at pp. 23–34.) 8 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 The operative Exchange Agreement (Ex. 3) arises from the 1998 Exchange Agreement 2 (Ex. 10). The 1998 Exchange Agreement, in turn, was the result of legislation empowering 3 Department of Water Resources Director David Kennedy to set a lawful wheeling rate for the 4 transfer of conserved water from the Imperial Irrigation District (IID) to the Water Authority. 5 (Ex. 12.) The rate Director Kennedy set included reasonable credit for offsetting benefits, and 6 Metropolitan agreed to that framework. (Ex. 14 at MWDRECORD2014_0009349; see also Ex. 7 13, nn. 3–4; Ex. R; Ex. S at MWD2010-00264778–79, 86–91.) 8 No water flowed under the 1998 Exchange Agreement, however, because—among other 9 issues ultimately resolved in the set of agreements known as the Quantification Settlement 10 Agreement (QSA)—Metropolitan was fighting against the underlying transfer in court. (See 11 County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 20–22; Quantification 12 Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 788.) Indeed, Metropolitan was so 13 determined to stop the transfer that it infamously gathered opposition research on public officials, 14 resulting in a statutory rebuke from an outraged Legislature and Governor, requiring Metropolitan 15 to “establish and operate an Office of Ethics.” (Wat. Code App., §§ 109-126.7.) And 16 Metropolitan also asserted that its receipt of the $235 million appropriation from the State to line 17 the canals was a condition precedent to the 1998 Exchange Agreement that might never be 18 satisfied because the State was in a budget crisis and might not provide the money. (See Ex. L at 19 pp. 1166:8–1170:19 (Slater), 1525:17–1526:24 (Stapleton).) 20 In order to overcome the delays caused by Metropolitan’s purported “insecurity over 21 funding and other issues related to implementing the canal lining,” and to finally get the 22 conserved IID and canal-lining water (Exchange Water) flowing through Metropolitan’s half- 23 empty aqueduct, the Water Authority proposed to “flip the obligation and assume the role of 24 implementing the canal lining project under the theory that if Met did not believe this was capable 25 of being implemented or that there were limitations, then San Diego would take that risk.” (Ex. L 26 at p. 1170:1-19 (Slater).) This was called “Option 2,” whereas “Option 1” was to continue 27 attempting to move forward under the 1998 Exchange Agreement despite the many roadblocks 28 Metropolitan had erected. Contrary to Metropolitan’s assertions, the Water Authority’s 9 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 agreement to take responsibility for lining the canals (the Allocation Agreement) was no sinecure. 2 “Nobody wrote the Water Authority a check for $235 million at the time. We got the Allocation 3 Agreement and got the canal lining and with that came considerable risk in carrying out the 4 project, risks that many people at the time understood would face whichever party constructed the 5 All-American Canal.” (Id. at pp. 1068:18–1069:4 (Cushman).) Those included environmental 6 challenges and litigation, and the financial and engineering risks of building “one of the largest 7 canals in the world . . . through sand dunes” without knowing whether the State would come 8 through with the money or whether it would be enough (it wasn’t). (Id. at p. 1069:5-18.) 9 The Water Authority was also concerned about the discrepancy between the 30-year term 10 of the 1998 Exchange Agreement and the 45- to 75-year term of the Transfer Agreement. That 11 meant that when the 1998 Exchange Agreement expired—at which point the water transfers 12 would have ramped up to their maximum—the Water Authority would be at the mercy of 13 Metropolitan’s excessive and unlawful wheeling rate, instead of the lawful wheeling rate set by 14 Director Kennedy. (See Ex. L at pp. 1009:7–1010:1, 1068:7-17 (Cushman), 1164:3–1166:3 15 (Slater), 1525:17–1526:24 (Stapleton).) Thus, further litigation over Metropolitan’s wheeling rate 16 was inevitable and, under the 1998 Exchange Agreement, would occur when Metropolitan had 17 the Water Authority over an even bigger barrel. (See ibid.) 18 The Water Authority rightly believed that the rate set by Director Kennedy, which 19 included reasonable credit for offsetting benefits, “was a fair and equitable wheeling rate.” (Ex. L 20 at p. 1600:1-8 (Stapleton); see also, e.g., Ex. P at pp. 6–23, 31–33.) But the Water Authority 21 decided that agreeing to pay Metropolitan’s excessive wheeling rate for five years was “worth the 22 risk” if the Water Authority could limit its exposure by ensuring that, after five years, “the Water 23 Authority had the ability to contest the wheeling rate.” (Ex. L at pp. 1525:25–1530:13 24 (Stapleton).) Accordingly, the Water Authority retained the right to sue after five years to 25 reinstate a lawful wheeling rate, including reasonable credit for offsetting benefits.4 26 4 Contrary to Metropolitan’s suggestions, the Water Authority emphasized the requirement of 27 reasonable credit for offsetting benefits throughout both phases of the prior litigation. (See, e.g., Ex. L at pp. 41:18–45:15, 869:13–871:17; Ex. P at pp. 6–23, 31–33; Ex. T at pp. 47–48, 52–53.) 28 This Court did not rule on the issue of offsetting benefits in its Phase I decision because it invalidated Metropolitan’s rates for other reasons. (See Ex. 1.) And the Court’s Phase II 10 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 After hearing the witnesses’ testimony and considering the other evidence presented in 2 Phase II, Judge Karnow found in the Water Authority’s favor across the board. (Ex. 2 at pp. 1– 3 25.) In particular, Judge Karnow rejected Kightlinger’s revisionist history of the Exchange 4 Agreement relating to the canal-lining water. In his trial testimony, Kightlinger admitted that 5 members of Metropolitan’s own negotiating team had observed that, if the price was reduced due 6 to litigation, Metropolitan “would have already given up the canal lining water, the $235 7 million.” (Ex. L at pp. 1300:25–1301:2, emphasis added.) In order to avoid that outcome, 8 according to Kightlinger, the parties purportedly agreed that the Water Authority could not 9 challenge Metropolitan’s existing rate structure, even after the five-year period in the Exchange 10 Agreement. (Id. at pp. 1300:13–1305:7.) But that is false, as the Water Authorities’ witnesses 11 testified. Stapleton, in particular, testified that the Water Authority never agreed to any such 12 thing—exactly the opposite. (Id. at pp. 1525:25–1530:13, 1554:22–1555:14 (Stapleton).) 13 Judge Karnow explicitly and repeatedly “credit[ed] Stapleton’s testimony, and not 14 contrary Kightlinger testimony.” (Ex. 2 at p. 8, fn. 12.) “Kightlinger’s testimony . . . is 15 contradicted, and [Judge Karnow] reject[ed] it.” (Id. at p. 9.) Specifically, he “rejected 16 Kightlinger’s testimony that San Diego told him that San Diego would not challenge Met’s 17 existing rate structure and that the concession was material to Met.” (Id. at p. 24, fn. 39.) 18 Judge Karnow also rejected, yet again, Metropolitan’s contention that the Wheeling 19 Statutes’ definition of “fair compensation” does not apply to the price term of the Exchange 20 Agreement. In Phase I, Judge Karnow invalidated Metropolitan’s conveyance charges because 21 they exceed “fair compensation.” (Ex. 1 at pp. 49, 58–61, 65.) In Phase II, he found: “The same 22 logic applies to the Exchange Agreement.” (Ex. 2 at p. 13.) Metropolitan objected to that finding 23 on the basis that “a wheeling transaction is ‘radically different’ than the Exchange Agreement” 24 (Ex. O at p. 2)—an argument Metropolitan repeats verbatim in its current motion. (Met. MPA at 25 pp. 7, 11, 16). Judge Karnow rejected that argument. (See Ex. 2 at pp. 10, 13.) 26 27 damages award simply followed from its Phase I decision. (See Ex. 2 at pp. 1–25.) This Court 28 then declined to consider offsetting benefits on remand from the first appeal, but that decision was limited to the prior cases, as this Court has recognized. (See Ex. 9 at pp. 7–10.) 11 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 C. The Court of Appeal further rejected Metropolitan’s arguments in SDCWA I. 2 On appeal, Metropolitan argued that this Court’s “finding that Metropolitan’s 3 Transportation Rates were unlawful as to wheelers cannot translate into a breach of the Exchange 4 Agreement because the Exchange Agreement does not concern wheeling.” (Ex. 4 at pp. 120– 5 121.) The Court of Appeal rejected that Metropolitan argument, among many others: 6 Metropolitan has made several assertions on appeal denying an enforceable contract and actionable breach but none is persuasive. The contract was not illegal at its 7 inception for including a variable price term that was ultimately found to contain an unlawful rate component. Also, contrary to Metropolitan’s arguments, the evidence 8 sufficiently establishes a violation of the contractual price term, not just the wheeling rate, and actionable injury is shown by payment of a water stewardship 9 rate unrelated to the transportation services provided. 10 (SDCWA I, supra, 12 Cal.App.5th at p. 1154, emphasis added.) As the Court of Appeal made 11 clear, Metropolitan’s “water stewardship rate was unlawfully charged for the conveyance of 12 water” and “there was a breach of the agreement in that respect” (ibid.) precisely because that rate 13 is not “recoverable as ‘fair compensation’” under the Wheeling Statutes. (Id. at p. 1151.) 14 In the Background section of its current brief, Metropolitan quotes SDCWA I’s discussion 15 of “some of the differences between wheeling and exchange agreements.” (Met. MPA at pp. 3– 16 4.) But Metropolitan misses the point. Although the parties “preferred an exchange agreement to 17 a wheeling agreement” for some purposes (SDCWA I, supra, 12 Cal.App.5th at p. 1136), they 18 agreed to a price term governed by (among other applicable laws) the Wheeling Statutes’ 19 definition of “fair compensation.” (See id. at pp. 1137, 1144, 1150–1151, 1154.) 20 The Court of Appeal also agreed with this Court that the “Water Authority promised not 21 to challenge conveyance charges set by Metropolitan for five years following execution of the 22 2003 exchange agreement but reserved the right thereafter to contest the rates as contrary to 23 ‘applicable law and regulation.’” (SDCWA I, supra, 12 Cal.App.5th at p. 1137, quoting Ex. 3, 24 ¶ 5.2, emphasis added.) Thus, Metropolitan’s revisionist history to the contrary relating to the 25 canal-lining water is dead and buried. Metropolitan cannot revive it. (See ibid.; § II.B, supra.) 26 D. The Court of Appeal forcefully reiterated its rejection of Metropolitan’s arguments in SDCWA II and, most recently, SDCWA III. 27 In SDCWA II, the Court of Appeal firmly rejected all of Metropolitan’s challenges to this 28 Court’s final judgment and peremptory writ of mandate, noting that Metropolitan’s persistence in 12 WATER AUTHORITY’S OPP’N TO METROPOLITAN’S MOT. FOR SUMMARY ADJUDICATION Lead Case No. CPF-14-514004; Consolidated with Case Nos. CPF-16-515282 & CPF-18-516389 1836170 1 “contravening our prior opinion [in SDCWA I] supports the trial court’s continuing jurisdiction to 2 assure compliance with its judgment.” (SDCWA II, supra, 2021 WL 4272331 at p. *6.) Further, 3 this Court’s writ properly granted the Water Authority’s requests for mandamus based on 4 Metropolitan’s failure to “act as required by law in determining ‘fair compensation’ for a 5 wheeler’s use of an owner’s water conveyance system for transporting water under both the 6 Wheeling Statutes and the parties’ exchange agreement under which Metropolitan had a duty to 7 calculate water rates pursuant to applicable law and regulation.” (Id. at p. *7, emphases added.) 8 Metropolitan has a “clear and present legal obligation” to “timely determine fair compensation for 9 use of its water conveyance services for the benefit of the Water Authority, which is an entity 10 entitled to use the facilities upon the payment of fair compensation.” (Id. at p. *8.) And that 11 obligation applies not only in the context of whatever Metropolitan chooses to call its “wheeling 12 rate,” but also to its “transportation rates” more generally—specifically including “the 13 transportation rates charged under the October 10, 2003 Exchange Agreement between 14 Metropolitan and the San Diego Water Authority.” (Id. at pp. *5–10.) 15 Most recently, in SDCWA III, the Court of Appeal affirmed that the Water Authority 16 prevailed in the prior cases, quoting this Court’s order at length, including the following: 17 Metropolitan claimed there was no basis under the contract to challenge the rate structure because, pursuant to its interpretation of the contract, the Water Authority 18 never had any right to challenge Metropolitan’s existing, unamended rate structure. The trial court found Metropolitan’s interpretation inconsistent and ‘irreconcilable 19 with the plain language of the contract,’ and the testimony of itswitness Jeffrey Kightlinger ‘contradicted’ by other evidence. The trial court found that under 20 section 5.2 of the Exchange Agreement, the Water Authority was within its right to contest whether Metropolitan’s rates and charges were consistent with applicable 21 law after five years. . . . The Water Authority [also] obtained rulings, affirmed on appeal, that Metropolitan breached the Exchange Agreement by violating the 22 Wheeling Statutes . . . [and] vindicated ‘the policy of the state to facilitate the voluntary sale, lease, or exchange of water or water rights in order to pro