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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 02/22/2022
5 Email: jjrodriguez@manatt.com Clerk of the Court
BY: SANDRA SCHIRO
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
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14
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SAN FRANCISCO
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17
SAN DIEGO COUNTY WATER Case No. CPF-14-514004; consolidated with
18 AUTHORITY, Case Nos. CPF-16-515282 & CPF-18-516389
19 Assigned for all purposes to the
Petitioner and Plaintiff, Hon. Anne-Christine Massullo, Dept. 306
20 v. METROPOLITAN WATER DISTRICT
21 OF SOUTHERN CALIFORNIA’S
THE METROPOLITAN WATER DISTRICT MEMORANDUM OF POINTS AND
OF SOUTHERN CALIFORNIA, ALL
22 AUTHORITIES IN SUPPORT OF
PERSONS INTERESTED IN THE MOTION FOR SUMMARY
VALIDITY OF THE RATES ADOPTED BY
23 ADJUDICATION
THE METROPOLITAN WATER DISTRICT
OF SOUTHERN CALIFORNIA ON APRIL 8,
24 [Filed concurrently with (1) notice of motion
2014 TO BE EFFECTIVE JANUARY 1, 2015 and motion; (2) separate statement; (3) request
AND JANUARY 1, 2016; and DOES 1-10,
25 for judicial notice; (4) appendix of evidence;
(5) proposed order.]
Respondents and Defendants.
26
Hearing Date: April 13, 2022
27 Time: 2:00 p.m.
28
MANATT, PHELPS &
PHILLIPS, LLP METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
CASE NO. CPF-14-514004
1 THE METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA,
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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 &
PHILLIPS, LLP METROPOLITAN’S MEMORANDUM IN SUPPORT 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 &
PHILLIPS, LLP METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
CASE NO. CPF-14-514004
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION .............................................................................................................. II
4 II. BACKGROUND ................................................................................................................ 2
A. The Exchange Agreement ....................................................................................... 2
5
B. The Water Authority’s Representations about the Exchange Agreement .............. 6
6 1. Representations to the State Water Resources Control Board. ................... 6
7 2. Representations in the Quantification Settlement Agreement Cases .......... 7
C. Performance of the Exchange Agreement............................................................... 8
8
III. LEGAL STANDARD ......................................................................................................... 9
9 IV. THE MOTION SHOULD BE GRANTED ........................................................................ 9
10 A. Metropolitan is entitled to summary adjudication on San Diego’s fourth
cause of action for breach of contract because the Exchange Agreement
11 does not include “offsetting benefits” (Issue 1). ..................................................... 9
B. Metropolitan is entitled to summary adjudication on Metropolitan’s cause
12 of action for declaratory relief concerning fair compensation. (Issue 2). ............. 14
13 C. Metropolitan is entitled to summary adjudication on the Water Authority’s
fourth cause of action for breach of contract under the judicial estoppel
14 doctrine (Issue 3). .................................................................................................. 15
D. Metropolitan is entitled to summary adjudication on Metropolitan’s
15 affirmative defense and cause of action for judicial estoppel (Issue 4). ............... 17
16 E. Metropolitan is entitled to summary adjudication of its cause of action for
the conveyance facility owner determining offsetting benefits (Issue 5). ............ 18
17 F. Metropolitan is entitled to summary adjudication of its cause of action for
reformation of the Exchange Agreement price (Issue 6). ..................................... 18
18
V. CONCLUSION ................................................................................................................. 20
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MANATT, PHELPS &
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PHILLIPS, LLP METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
ATTORNEYS AT LAW
SAN FRANCISCO
CASE NO. CPF-14-514004
1 TABLE OF AUTHORITIES
2 Page
3
4 CASES
5 ASP Properties Group, L.P. v. Fard, Inc.,
133 Cal. App. 4th 1257 (2005)................................................................................................ 13
6 Baines v. Zuieback,
7 84 Cal. App. 2d 483 (1948)..................................................................................................... 19
Brinton v. Bankers Pension Servs., Inc.,
8 76 Cal. App. 4th 550 (1999).................................................................................................... 11
9 Brown v. Goldstein,
34 Cal. App. 5th 418 (2019).................................................................................................... 10
10
Demetris v. Demetris,
11 125 Cal. App. 2d 440 (1954)............................................................................................. 19, 20
12 Donovan v. RRL Corp.,
26 Cal. 4th 261 (2001) ............................................................................................................ 19
13 Drain v. Betz Labs, Inc.,
14 69 Cal. App. 4th 950 (1999).................................................................................................... 15
Edward Fineman Co. v. Super. Court,
15 66 Cal. App. 4th 1110 (1998).................................................................................................... 9
16 Employers Reins. Co. v. Super. Court,
161 Cal. App. 4th 906 (2008).................................................................................................. 12
17
First American Title Ins. & Trust Co. v. Cook,
18 12 Cal. App. 3d 592 (1970)..................................................................................................... 20
19 Gafcon, Inc. v. Ponsor & Associates,
98 Cal. App. 4th 1388 (2002).................................................................................................. 14
20 In re Quantification Settlement Agreement Cases,
21 201 Cal. App. 4th 758 (2011)........................................................................................... passim
In re Tobacco Cases II,
22 240 Cal. App. 4th 779 (2015).................................................................................................. 15
23 Jackson v. Cty. of Los Angeles,
60 Cal. App. 4th 171 (1997).................................................................................................... 15
24
Jones v. First American Title Ins. Co.,
25 107 Cal. App. 4th 381 (2003).................................................................................................. 20
26 Kennecott Corp. v. Union Oil Co.,
196 Cal. App. 3d 1179 (1987)................................................................................................. 12
27 Lilienthal & Fowler v. Super. Court,
28 12 Cal. App. 4th 1848 (1993).................................................................................................... 9
MANATT, PHELPS &
PHILLIPS, LLP - ii -
ATTORNEYS AT LAW
METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
SAN FRANCISCO
CASE NO. CPF-14-514004
1 MacFarlane v. Peters,
103 Cal. App. 3d 627 (1980)................................................................................................... 20
2
Nieto v. Blue Shield of Cal. Life & Health Ins. Co.,
3 181 Cal. App. 4th 60 (2010)...................................................................................................... 9
4 Oasis West Realty, LLC v. Goldman,
51 Cal. 4th 811 (2011) ............................................................................................................ 10
5
People ex rel. Lockyer v. Sun Pac. Farming Co.,
6 77 Cal. App. 4th 619 (2000).................................................................................................... 16
Roden v. AmerisourceBergen Corp.,
7 186 Cal. App. 4th 620 (2010).................................................................................................. 13
8 Salton Bay Marina, Inc. v. Imperial Irrigation Dist.,
172 Cal. App. 3d 914 (1985)................................................................................................... 12
9
San Diego Cty. Water Auth. v. Metro. Water Dist. of S. California,
10 12 Cal. App. 5th 1124 (2017), as modified on denial of reh’g (July 18, 2017) ............... passim
11 Serri v. Santa Clara Univ.,
226 Cal. App. 4th 830 (2014).................................................................................................... 9
12
SLPR, L.L.C. v. San Diego Unified Port Dist.,
13 49 Cal. App. 5th 284 (2020).................................................................................................... 11
Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC,
14 185 Cal. App. 4th 1050 (2010)................................................................................................ 11
15 Vaillette v. Fireman’s Fund Ins. Co.,
18 Cal. App. 4th 680 (1993).................................................................................................... 13
16
STATUTES
17
Civ. Code § 1608 1 ......................................................................................................................... 14
18 Civ. Code § 1636 .......................................................................................................................... 10
19 Civ. Code § 1638 .......................................................................................................................... 13
20 Civ. Code § 3339 .............................................................................................................. 14, 18, 19
Code Civ. Proc. § 437c(c) ............................................................................................................... 9
21
Code Civ. Proc. § 437c(f)(1) ........................................................................................................... 9
22 Code Civ. Proc. § 437c(f)(2) ........................................................................................................... 9
23 Evid. Code § 623 ........................................................................................................................... 15
24 Metropolitan Act, Stats. 1969, ch. 209, § 136, Wat. Code ............................................................. 3
Wat. Code § 1810............................................................................................................................ 1
25
Wat. Code § 1810(d) ................................................................................................................. 1, 12
26
Wat. Code § 1811............................................................................................................................ 1
27
28 1
MANATT, PHELPS &
All statutory references are to California statutes.
PHILLIPS, LLP - iii -
ATTORNEYS AT LAW
METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
SAN FRANCISCO
CASE NO. CPF-14-514004
1 Wat. Code § 1811(c) ..................................................................................................................... 14
2 Wat. Code § 1812(b) ..................................................................................................................... 18
Wat. Code § 22762 .......................................................................................................................... 5
3
OTHER AUTHORITIES
4
CACI No. 303 ............................................................................................................................... 10
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MANATT, PHELPS &
PHILLIPS, LLP - iv -
ATTORNEYS AT LAW
METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
SAN FRANCISCO
CASE NO. CPF-14-514004
1 I. INTRODUCTION
2 This motion concerns only the Water Authority’s 2 breach of contract claim, a
3 Metropolitan 3 affirmative defense to the contract claim, and Metropolitan’s contract-related
4 cross-claims in each of these consolidated cases. The contract at issue is the parties’ 2003
5 amended Exchange Agreement 4, under which the Water Authority provides water to
6 Metropolitan at Lake Havasu, Arizona and in exchange, Metropolitan provides the Water
7 Authority in San Diego with a like quantity of different water from any source(s). The 2003
8 amendment involved a higher price (set forth in Section 5.2) in return for Metropolitan assigning
9 significant money and water rights worth over $1 billion to the Water Authority.
10 Until recently, Metropolitan and the Water Authority agreed on what the Exchange
11 Agreement and its price term meant. Specifically, the parties agreed that the Exchange Agreement
12 was not a wheeling transaction subject to California Water Code section 1810 et seq. (“the
13 Wheeling Statutes”). “Wheeling” refers to a person or agency’s use of another agency’s water
14 conveyance facility to move the wheeling party’s water from one point to another. See Wat. Code
15 §§ 1810, 1811. The Wheeling Statutes apply only under certain statutory conditions and provide
16 for certain statutory restrictions. Id. § 1810 et seq. 5 The Water Authority—before and after
17 executing the Exchange Agreement—agreed that the contract is not a wheeling transaction
18 subject to the Wheeling Statutes. The Water Authority made these representations to the State
19 Water Resources Control Board, the Superior Court of the State of California, and the California
20 Court of Appeal in multiple proceedings in order to avoid application of the Wheeling Statutes.
21 The Water Authority was successful in each forum. And the parties agreed the price term was
22 based on Metropolitan’s three transportation rate components, not its pre-set wheeling rate. San
23 Diego Cty. Water Auth. v. Metro. Water Dist. of S. California, 12 Cal. App. 5th 1124, 1138
24 2
“The Water Authority” refers to Petitioner, Plaintiff, and Cross-Defendant San Diego County
25 Water Authority.
3
“Metropolitan” refers to Respondent, Defendant, and Cross-Complainant Metropolitan Water
26 District of Southern California.
4
“Exchange Agreement” refers to the operative 2003 agreement as amended. “1998 Exchange
27 Agreement” refers to the original agreement.
5
For example, under the Wheeling Statutes, wheeling may not injure a legal water user, or
28 unreasonably affect instream beneficial uses or the overall economy or the environment of the
MANATT, PHELPS &
county from which water is being transferred. Wat. Code § 1810(d).
PHILLIPS, LLP -1-
ATTORNEYS AT LAW
METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
SAN FRANCISCO
CASE NO. CPF-14-514004
1 (2017), as modified on denial of reh’g (July 18, 2017) (“SDCWA”). (See also 2014 FAC ¶ 43.) 6
2 Now, almost twenty years after the Water Authority proposed and agreed to the
3 consideration package, including the price term, and entered into the Exchange Agreement, the
4 Water Authority takes exactly the opposite position. The Water Authority now contends that the
5 Exchange Agreement is subject to the Wheeling Statutes. Moreover, the Water Authority
6 contends that the Exchange Agreement’s price is different than what the Water Authority
7 proposed and is stated in the agreement. The Water Authority contends that the Wheeling
8 Statutes’ fair compensation provision—which provides for “offsetting benefits” credit if
9 applicable in a given transaction, as determined by the owner of the conveyance system—always
10 mandated the price to be substantially less than the agreement states and as to which the parties
11 have performed since 2003. The Water Authority is wrong.
12 The Water Authority should be estopped from taking totally inconsistent positions—that
13 the Wheeling Statutes did not apply when it served the Water Authority’s purpose but they do
14 apply now to serve a different purpose. Even if judicial estoppel does not prevent the Water
15 Authority’s current position, ordinary contract interpretation principles do. The Exchange
16 Agreement does not mention offsetting benefits in the price term or elsewhere. The consideration
17 package took into account all applicable benefits the Water Authority sought; this we know
18 because the Water Authority proposed the package, including the price term. The Court should
19 reject the Water Authority’s current position and enter summary adjudication in Metropolitan’s
20 favor, consistent with the terms of the agreement as proposed by the Water Authority and the
21 Water Authority’s prior representations to courts and the State Water Resources Control Board.
22 II. BACKGROUND
23 A. The Exchange Agreement
24 Metropolitan is a voluntary cooperative of 26 member public agencies, including the
25 Water Authority. (Metropolitan’s Undisputed Material Fact [“UF”] 1.) Metropolitan delivers
26
6
27 “2014 FAC” refers to the Water Authority’s First Amended Petition/Complaint in the 2014
Action. “2016 SAC” and “2018 SAC” refer to the Second Amended Petition/Complaint in the
28 2016 and 2018 Actions, respectively. Where only the 2014 FAC is cited, the cited paragraph(s)
MANATT, PHELPS &
are identical to the same paragraphs in all three operative pleadings.
PHILLIPS, LLP -2-
ATTORNEYS AT LAW
METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
SAN FRANCISCO
CASE NO. CPF-14-514004
1 wholesale water to its member agencies like the Water Authority from two principal sources: the
2 Colorado River via the Colorado River Aqueduct and the State Water Project (“SWP”) via the
3 California Aqueduct. SDWCA, 12 Cal. App. 5th at 1131. Metropolitan generally delivers a blend
4 of Colorado River water and SWP water. Id. at 1151. 7
5 Metropolitan is one of 29 State Water Contractors with participation rights in the SWP,
6 including water. See SDWCA, 12 Cal. App. 5th at 1134-35. Metropolitan is one of a few
7 California parties with rights to Colorado River water. Id. The Imperial Irrigation District (“IID”),
8 a separate water agency, also has rights to Colorado River water and it has sold conserved
9 Colorado River water to other parties. Id. “The initial purchaser of Imperial’s conserved water
10 was Metropolitan. In 1988, Metropolitan agreed to pay for various projects to conserve water in
11 exchange for which Imperial transferred the conserved water to Metropolitan. In 1998, a decade
12 later, IID and the Water Authority entered a similar agreement [“the IID-Water Authority
13 Transfer Agreement”].” Id. at 1135. (See also UF 2.)
14 IID agreed to transfer up to 200,000 acre-feet of conserved Colorado River water per year
15 to the Water Authority, contingent on Metropolitan agreeing to accept delivery of the “transfer
16 water” from IID at Lake Havasu, Arizona, and deliver a like quantity of water to the Water
17 Authority at its connection to the Metropolitan system in San Diego. (UF 3.) Metropolitan and the
18 Water Authority were unable to negotiate a wheeling agreement for the conveyance of the water
19 and instead, entered into a 30-year exchange agreement. (UF 4.) In the 2010/2012 Actions, the
20 Court of Appeal explained some of the differences between wheeling and exchange agreements:
21 While functionally related, wheeling and exchange agreements are
not the same. A wheeling agreement calls for the transportation of
22 water when there is available capacity in the water conveyance
system. An exchange agreement promises the delivery of a specified
23 quantity of water. Water is not wheeled unless available, but an
exchange agreement requires delivery of an agreed-upon quantity of
24 water every month. Recipients under a wheeling agreement receive
less than the transfer amount due to evaporation and other transit
25 losses, but the conveyance system operator bears transit losses under
an exchange agreement. As the trial testimony in the present case
26
7
27 State law requires Metropolitan to serve as large an area as is reasonable and practical with SWP
water, and where it serves a blend to have the objective that it is at least 50 percent SWP water to
28 the extent reasonable and practicable. Metropolitan Act, Stats. 1969, ch. 209, § 136, Wat. Code
MANATT, PHELPS &
Appen. § 109.
PHILLIPS, LLP -3-
ATTORNEYS AT LAW
METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
SAN FRANCISCO
CASE NO. CPF-14-514004
1 established, the parties here preferred an exchange agreement to a
wheeling agreement. The Water Authority wanted guaranteed
2 delivery and Metropolitan wanted the greater operational flexibility
of an exchange agreement that permits the use of available facilities
3 and supply sources.
4 (UF 5 [emphasis added].)
5 Under the 1998 Exchange Agreement, the Water Authority agreed to pay Metropolitan
6 $90 per acre-foot, with annual increases of 1.55% for the first 20 years. For years 21 through 30,
7 the Water Authority agreed to pay $80 per acre-foot, with annual increases of 1.44%. (UF 6.) The
8 agreement was conditioned on the State Legislature’s appropriation of $235 million to
9 Metropolitan for projects, including to line the earthen All-American and Coachella Canals to
10 conserve a water supply that Congress had allocated to Metropolitan that would otherwise be lost
11 through seepage (“canal lining water”). (UF 7.)
12 There were no exchanges under the 1998 Exchange Agreement because, as recognized in
13 the agreement, Colorado River water rights first needed to be quantified. In 2003, various water
14 agencies with rights to Colorado River water, including Metropolitan and IID, negotiated
15 numerous agreements collectively referred to as the “Quantification Settlement Agreement”
16 (“QSA”). (UF 8.) As part of the QSA, Metropolitan and the Water Authority amended the 1998
17 Exchange Agreement in 2003. (UF 9.) In re Quantification Settlement Agreement Cases, 201 Cal.
18 App. 4th 758, 788 (2011) (“QSA Cases”). (See also Ex. A [Exch. Agreement], Recital F.)
19 Although the Exchange Agreement price term did not need to change as part of the QSA, the
20 Water Authority proposed two options to Metropolitan.
21 Under Option 1, the price term would remain unchanged. The Water Authority would
22 continue to pay the same price negotiated in the 1998 Exchange Agreement. (UF 10.) Option 2
23 involved a new and different consideration package. Under Option 2, Metropolitan would assign
24 to the Water Authority Metropolitan’s right to approximately 70,000 acre-feet of conserved canal
25 lining water annually for 110 years, as well as Metropolitan’s $235 million legislative
26 appropriation for canal lining and other projects. The Water Authority proposed that in return, it
27 would pay a higher contract price, based on Metropolitan’s unbundled transportation rates. (UF
28 11.) Metropolitan would exchange both the IID water and the canal lining water. (See Exch.
MANATT, PHELPS &
PHILLIPS, LLP -4-
ATTORNEYS AT LAW
METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
SAN FRANCISCO
CASE NO. CPF-14-514004
1 Agreement ¶ 7.1(a)-(b).) Metropolitan allowed the Water Authority to choose between the two
2 options. (UF 12.) The Water Authority selected Option 2 and Metropolitan agreed. (UF 13-14.)
3 Neither option included a request by the Water Authority for an offsetting benefits determination
4 or credit under the Wheeling Statutes or any other theory. (UF 15.)
5 On October 10, 2003, Metropolitan and the Water Authority entered the amended
6 Exchange Agreement and an Allocation Agreement. (UF 16.) The parties’ consideration package
7 was contained across the two documents: the Exchange Agreement set forth the price, and the
8 Allocation Agreement set forth Metropolitan’s assignment to the Water Authority of its $235
9 million appropriation and the canal lining water for 110 years. (UF 19.) Neither the Exchange
10 Agreement nor the Allocation Agreement included offsetting benefits as part of the consideration
11 package. (UF 20.) The Water Authority agreed that the value of Metropolitan’s assignment of the
12 canal lining water was high; over $1 billion and potentially in the multi-billions. (Ex. Q [4/2/2015
13 Stapleton, 1474:18-1476:14].) The term of the Exchange Agreement is 110 years—until 2112—
14 the same length as the assignment of the canal lining water. (See Exch. Agreement ¶7.1(b); Ex. G
15 [Allocation Agreement] ¶ 4.2.) 8
16 Section 5.2 of the Exchange Agreement set forth the new price term the Water Authority
17 had proposed and selected:
18 The price on the date of Execution of this Agreement shall be Two
Hundred Fifty Three Dollars ($253.00). Thereafter, the Price shall be
19 equal to the charge or charges set by Metropolitan’s Board of
Directors pursuant to applicable law and regulation and generally
20 applicable to the conveyance of water by Metropolitan on behalf of
its member agencies …
21
22 (UF 21.) The terms “wheeling,” “fair compensation,” and “offsetting benefits” do not appear in
23 Section 5.2 of the Exchange Agreement. (UF 22.) The parties agreed the Exchange Agreement
24 price of charges “generally applicable to the conveyance of water by Metropolitan on behalf of its
25 member agencies means the transportation rates components of Metropolitan’s full-service rate:
26
27 8
No indication of any other future determination of any credits was made by SDCWA or any
28 other party and the agreements were validated by operation of law. Water Code § 22762; QSA
MANATT, PHELPS &
Cases, 201 Cal. App. 4th at 825.
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ATTORNEYS AT LAW
METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
SAN FRANCISCO
CASE NO. CPF-14-514004
1 the system access rate, system power rate, and water stewardship rate.” (UF 23.) 9 SDCWA, 12
2 Cal. App. 5th at 1138-39. The Court of Appeal explained that in contrast, a recipient of wheeling
3 service does not pay the system power rate and instead pays the actual cost of the power used to
4 transport the water. Id. at 1138.
5 Under the Exchange Agreement, the Water Authority makes the IID and canal lining
6 water available to Metropolitan at Lake Havasu. (Exch. Agreement ¶¶ 3.1(a), 3.5(a).) The water
7 becomes Metropolitan’s water at Lake Havasu. (UF 17.) In return, Metropolitan delivers a like
8 quantity of water from any source(s) in San Diego, in monthly intervals. (UF 18.)
9 B. The Water Authority’s Representations about the Exchange Agreement
10 The Water Authority has consistently referred to the Exchange Agreement as a “good
11 deal” for the Water Authority. Scott Slater, the Water Authority’s lead negotiator of the Exchange
12 Agreement, testified at deposition and trial that Option 2 was his idea and the Exchange
13 Agreement was “absolutely” a “good deal.” (UF 24.) Maureen Stapleton, the Water Authority’s
14 General Manager when the parties negotiated the Exchange Agreement, participated in the
15 negotiations and continued as General Manager for years of Exchange Agreement performance.
16 (UF 25.) She testified at trial in the 2010/2012 Actions that the Exchange Agreement was a “good
17 deal” for the Water Authority. (UF 26.) Nowhere in that testimony did the Water Authority
18 representatives represent that a future offsetting benefits credit was required. See generally Exs.
19 M, P [Slater testimony], Exs. Q-R [Stapleton testimony].) Slater’s and Stapleton’s representations
20 make sense given the robust consideration that the Water Authority received, including
21 Metropolitan’s $235 million legislative appropriation and 110-year allocation of canal lining
22 water.
23 1. Representations to the State Water Resources Control Board.
24 In 2002, the Water Authority and IID jointly petitioned the California State Water
25 Resources Control Board (“SWRCB”) to approve the IID-Water Authority Transfer Agreement
26 and the long-term transfer of conserved water from IID to the Water Authority. (UF 27.) Maureen
27
9
28 Since January 2018, Metropolitan ceased charging the Water Stewardship Rate under the
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Exchange Agreement.
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ATTORNEYS AT LAW
METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
SAN FRANCISCO
CASE NO. CPF-14-514004
1 Stapleton testified at the proceedings that the 1998 Exchange Agreement—which was
2 operationally the same as the Exchange Agreement—was “radically different than a wheeling
3 agreement” because it is a trade of one supply for another, and it is firm regardless of capacity as
4 opposed to contingent on space available. (UF 28.) The SWRCB approved the petition. (UF 29.)
5 2. Representations in the Quantification Settlement Agreement Cases
6 On November 5, 2003—less than one month after the parties executed the Exchange
7 Agreement—several parties initiated litigation to challenge the QSA. One plaintiff, Imperial
8 County, alleged that parties to the QSA had failed to comply with requirements of the Wheeling
9 Statutes to avoid unreasonable economic or environmental effects. See QSA Cases, 201 Cal. App.
10 4th 838-39. (UF 30.)
11 In the QSA Cases, the Water Authority and Metropolitan agreed and represented that the
12 Exchange Agreement was not a wheeling transaction subject to the Wheeling Statutes. The Water
13 Authority and Metropolitan jointly moved for summary adjudication on that issue. They wrote:
14 The contention that the Wheeling Law applies to the QSA and related
agreements is wrong. This law only applies in a limited set of
15 circumstances not present in this case …. Both the language of the
statute and its legislative history make clear that the principal
16 purposes of the Wheeling Law are to ensure that ‘bona fide
transferors’ of water have access to any unused capacity in publicly-
17 owned water conveyance facilities and that the owners of these
facilities are fairly compensated for any such use.
18 (UF 31 [quoting 4/1/2009 MSA, 1:11-19].)
19 The Water Authority and Metropolitan also argued that the incorrect, broad interpretation
20 of the Wheeling Statutes advanced by Imperial County would sweep in other agreements in the
21 QSA. (UF 32.) The QSA trial court granted summary adjudication and held that the portion of the
22 Wheeling Statutes at issue there “does not have independent application to transfers, exchanges,
23 sales or leases of water where no use of facilities as otherwise addressed in the Wheeling Statutes
24 … is involved.” (UF 33.) The court also found: “Assuming tha
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Jul 11, 2024 |
CGC24615613
Matter on the Law & Motion calendar for Thursday, July 11, 2024, Line 15. PLAINTIFF PEOPLE CENTER, INC. D/B/A RIPPLING's Motion For Preliminary Injunction. Plaintiff People Center, Inc. d/b/a Rippling's motion for a preliminary injunction is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 1:30 p.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
A & A GENERAL BUILDING CONSTRUCTION INC., A VS. ARLENE S. TASIM ET AL
Jul 12, 2024 |
CGC23609755
Matter on the Law & Motion calendar for Friday, July 12, 2024, Line 12. DEFENDANT ARLENE TASIM AND ALI TASIM'S Motion For Sanctions Against A A General Building Construction Inc. Pursuant To Code Of Civil Procedure Section 1281.99. Defendants and Cross-Complainants' unopposed Motion for Sanctions in the amount of $8350.00 is granted (CCP section 1281.99), payment to be made within 30 days of the filing of this order. Friday's Law & Motion Calendar will be called out of Dept. 301. Anyone intending to appear in person should report to Dept. 301. However, anyone intending to appear remotely should use the regular Zoom information for Dept. 302's Law & Motion Calendar for 9:30 a.m. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RCE)
Ruling
YOLANDA JONES ET AL VS. GENERAL MOTORS, LLC ET AL
Jul 10, 2024 |
CGC23609805
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 10. 2 - DEFENDANT GENERAL MOTORS, LLC's MOTION TO STRIKE 1ST Amended COMPLAINT. Off calendar. The Quezada declaration fails to show that the parties met and conferred "in person, by telephone, or by video conference" in compliance with CCP 435.5. The parties are ordered to comply with the code. The response to the complaint is now due August 7, 2024. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
EDWARD WESTERMAN VS. FTI CONSULTING, INC. ET AL
Jul 09, 2024 |
CGC24615152
Matter on the Law & Motion Calendar for Tuesday, July 9, 2024, Line 12. PLAINTIFF EDWARD WESTERMAN's Motion To Seal. Plaintiff's unopposed motion to seal is granted. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
CLEAR HOMES LLC, A NEW MEXICO LIMITED LIABILITY VS. BRENDAN MICHAEL WEE ET AL
Jul 11, 2024 |
CGC23607972
Real Property/Housing Court Law and Motion Calendar for July 11, 2024 line 2. DEFENDANT BRENDAN WEE, ERIKA HILTON MOTION FOR JUDGMENT ON THE PLEADINGS is Off Calendar - Per request of moving party. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
ELIANE DOS SANTOS VITAL, AN INDIVIDUAL ET AL VS. AMERICAN HONDA MOTOR CO., INC., A CALIFORNIA ET AL
Jul 12, 2024 |
CGC22601133
Matter on the Discovery Calendar for Friday, Jul-12-2024, Line 2, PLAINTIFFS ELIANE DOS SANTOS VITAL, AN INDIVIDUAL, and WIDES VITAL DA SILVA'S, AN INDIVIDUAL, Motion To Compel Further Responses To Plaintiffs Request For Production Of Documents, Set Two. Pro Tem Judge William Lynn, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: Parties to appear if the motion remains unresolved. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link (DISCOVERY, DEPARTMENT 302 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 302. Any party who contests a tentative ruling must send an email to williamclynn@gmail.com with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/JPT)
Ruling
Y.P. VS. WELLS FARGO & COMPANY, ET AL
Jul 10, 2024 |
CGC24613065
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 12. DEFENDANT EARL IGNACIO AND WELLS FARGO BANK, N.A.'s Motion To Compel Arbitration. Defendants Wells Fargo Bank, N.A. and Earl Ignacio's motion to compel arbitration and stay is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
MARY ELIZABETH LEMASTERS VS. SCHOENBERG FAMILY LAW GROUP P.C. ET AL
Jul 09, 2024 |
CGC22600572
Matter on the Law & Motion Calendar for Tuesday, July 9, 2024, Line 4. PLAINTIFF MARY LEMASTERS' MOTION FOR WITHDRAWAL OF ATTORNEY OF RECORD. Hearing required. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
JOHN P BERNARD VS. BMW OF NORTH AMERICA, LLC ET AL
Jul 10, 2024 |
CGC23608339
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 8. PLAINTIFF JOHN BERNARD's Motion For Award Of Attorneys Fees, Costs, And Expenses. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. In meantime, counsel shall meet and confer to resolve their differences. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Preview
1 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 02/22/2022 5 Email: jjrodriguez@manatt.com Clerk of the Court BY: SANDRA SCHIRO 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 17 SAN DIEGO COUNTY WATER Case No. CPF-14-514004; consolidated with 18 AUTHORITY, Case Nos. CPF-16-515282 & CPF-18-516389 19 Assigned for all purposes to the Petitioner and Plaintiff, Hon. Anne-Christine Massullo, Dept. 306 20 v. METROPOLITAN WATER DISTRICT 21 OF SOUTHERN CALIFORNIA’S THE METROPOLITAN WATER DISTRICT MEMORANDUM OF POINTS AND OF SOUTHERN CALIFORNIA, ALL 22 AUTHORITIES IN SUPPORT OF PERSONS INTERESTED IN THE MOTION FOR SUMMARY VALIDITY OF THE RATES ADOPTED BY 23 ADJUDICATION THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA ON APRIL 8, 24 [Filed concurrently with (1) notice of motion 2014 TO BE EFFECTIVE JANUARY 1, 2015 and motion; (2) separate statement; (3) request AND JANUARY 1, 2016; and DOES 1-10, 25 for judicial notice; (4) appendix of evidence; (5) proposed order.] Respondents and Defendants. 26 Hearing Date: April 13, 2022 27 Time: 2:00 p.m. 28 MANATT, PHELPS & PHILLIPS, LLP METROPOLITAN’S MEMORANDUM IN SUPPORT 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 & PHILLIPS, LLP METROPOLITAN’S MEMORANDUM IN SUPPORT 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 & PHILLIPS, LLP METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION ATTORNEYS AT LAW SAN FRANCISCO CASE NO. CPF-14-514004 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION .............................................................................................................. II 4 II. BACKGROUND ................................................................................................................ 2 A. The Exchange Agreement ....................................................................................... 2 5 B. The Water Authority’s Representations about the Exchange Agreement .............. 6 6 1. Representations to the State Water Resources Control Board. ................... 6 7 2. Representations in the Quantification Settlement Agreement Cases .......... 7 C. Performance of the Exchange Agreement............................................................... 8 8 III. LEGAL STANDARD ......................................................................................................... 9 9 IV. THE MOTION SHOULD BE GRANTED ........................................................................ 9 10 A. Metropolitan is entitled to summary adjudication on San Diego’s fourth cause of action for breach of contract because the Exchange Agreement 11 does not include “offsetting benefits” (Issue 1). ..................................................... 9 B. Metropolitan is entitled to summary adjudication on Metropolitan’s cause 12 of action for declaratory relief concerning fair compensation. (Issue 2). ............. 14 13 C. Metropolitan is entitled to summary adjudication on the Water Authority’s fourth cause of action for breach of contract under the judicial estoppel 14 doctrine (Issue 3). .................................................................................................. 15 D. Metropolitan is entitled to summary adjudication on Metropolitan’s 15 affirmative defense and cause of action for judicial estoppel (Issue 4). ............... 17 16 E. Metropolitan is entitled to summary adjudication of its cause of action for the conveyance facility owner determining offsetting benefits (Issue 5). ............ 18 17 F. Metropolitan is entitled to summary adjudication of its cause of action for reformation of the Exchange Agreement price (Issue 6). ..................................... 18 18 V. CONCLUSION ................................................................................................................. 20 19 20 21 22 23 24 25 26 27 28 MANATT, PHELPS & -i- PHILLIPS, LLP METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION ATTORNEYS AT LAW SAN FRANCISCO CASE NO. CPF-14-514004 1 TABLE OF AUTHORITIES 2 Page 3 4 CASES 5 ASP Properties Group, L.P. v. Fard, Inc., 133 Cal. App. 4th 1257 (2005)................................................................................................ 13 6 Baines v. Zuieback, 7 84 Cal. App. 2d 483 (1948)..................................................................................................... 19 Brinton v. Bankers Pension Servs., Inc., 8 76 Cal. App. 4th 550 (1999).................................................................................................... 11 9 Brown v. Goldstein, 34 Cal. App. 5th 418 (2019).................................................................................................... 10 10 Demetris v. Demetris, 11 125 Cal. App. 2d 440 (1954)............................................................................................. 19, 20 12 Donovan v. RRL Corp., 26 Cal. 4th 261 (2001) ............................................................................................................ 19 13 Drain v. Betz Labs, Inc., 14 69 Cal. App. 4th 950 (1999).................................................................................................... 15 Edward Fineman Co. v. Super. Court, 15 66 Cal. App. 4th 1110 (1998).................................................................................................... 9 16 Employers Reins. Co. v. Super. Court, 161 Cal. App. 4th 906 (2008).................................................................................................. 12 17 First American Title Ins. & Trust Co. v. Cook, 18 12 Cal. App. 3d 592 (1970)..................................................................................................... 20 19 Gafcon, Inc. v. Ponsor & Associates, 98 Cal. App. 4th 1388 (2002).................................................................................................. 14 20 In re Quantification Settlement Agreement Cases, 21 201 Cal. App. 4th 758 (2011)........................................................................................... passim In re Tobacco Cases II, 22 240 Cal. App. 4th 779 (2015).................................................................................................. 15 23 Jackson v. Cty. of Los Angeles, 60 Cal. App. 4th 171 (1997).................................................................................................... 15 24 Jones v. First American Title Ins. Co., 25 107 Cal. App. 4th 381 (2003).................................................................................................. 20 26 Kennecott Corp. v. Union Oil Co., 196 Cal. App. 3d 1179 (1987)................................................................................................. 12 27 Lilienthal & Fowler v. Super. Court, 28 12 Cal. App. 4th 1848 (1993).................................................................................................... 9 MANATT, PHELPS & PHILLIPS, LLP - ii - ATTORNEYS AT LAW METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION SAN FRANCISCO CASE NO. CPF-14-514004 1 MacFarlane v. Peters, 103 Cal. App. 3d 627 (1980)................................................................................................... 20 2 Nieto v. Blue Shield of Cal. Life & Health Ins. Co., 3 181 Cal. App. 4th 60 (2010)...................................................................................................... 9 4 Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811 (2011) ............................................................................................................ 10 5 People ex rel. Lockyer v. Sun Pac. Farming Co., 6 77 Cal. App. 4th 619 (2000).................................................................................................... 16 Roden v. AmerisourceBergen Corp., 7 186 Cal. App. 4th 620 (2010).................................................................................................. 13 8 Salton Bay Marina, Inc. v. Imperial Irrigation Dist., 172 Cal. App. 3d 914 (1985)................................................................................................... 12 9 San Diego Cty. Water Auth. v. Metro. Water Dist. of S. California, 10 12 Cal. App. 5th 1124 (2017), as modified on denial of reh’g (July 18, 2017) ............... passim 11 Serri v. Santa Clara Univ., 226 Cal. App. 4th 830 (2014).................................................................................................... 9 12 SLPR, L.L.C. v. San Diego Unified Port Dist., 13 49 Cal. App. 5th 284 (2020).................................................................................................... 11 Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC, 14 185 Cal. App. 4th 1050 (2010)................................................................................................ 11 15 Vaillette v. Fireman’s Fund Ins. Co., 18 Cal. App. 4th 680 (1993).................................................................................................... 13 16 STATUTES 17 Civ. Code § 1608 1 ......................................................................................................................... 14 18 Civ. Code § 1636 .......................................................................................................................... 10 19 Civ. Code § 1638 .......................................................................................................................... 13 20 Civ. Code § 3339 .............................................................................................................. 14, 18, 19 Code Civ. Proc. § 437c(c) ............................................................................................................... 9 21 Code Civ. Proc. § 437c(f)(1) ........................................................................................................... 9 22 Code Civ. Proc. § 437c(f)(2) ........................................................................................................... 9 23 Evid. Code § 623 ........................................................................................................................... 15 24 Metropolitan Act, Stats. 1969, ch. 209, § 136, Wat. Code ............................................................. 3 Wat. Code § 1810............................................................................................................................ 1 25 Wat. Code § 1810(d) ................................................................................................................. 1, 12 26 Wat. Code § 1811............................................................................................................................ 1 27 28 1 MANATT, PHELPS & All statutory references are to California statutes. PHILLIPS, LLP - iii - ATTORNEYS AT LAW METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION SAN FRANCISCO CASE NO. CPF-14-514004 1 Wat. Code § 1811(c) ..................................................................................................................... 14 2 Wat. Code § 1812(b) ..................................................................................................................... 18 Wat. Code § 22762 .......................................................................................................................... 5 3 OTHER AUTHORITIES 4 CACI No. 303 ............................................................................................................................... 10 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MANATT, PHELPS & PHILLIPS, LLP - iv - ATTORNEYS AT LAW METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION SAN FRANCISCO CASE NO. CPF-14-514004 1 I. INTRODUCTION 2 This motion concerns only the Water Authority’s 2 breach of contract claim, a 3 Metropolitan 3 affirmative defense to the contract claim, and Metropolitan’s contract-related 4 cross-claims in each of these consolidated cases. The contract at issue is the parties’ 2003 5 amended Exchange Agreement 4, under which the Water Authority provides water to 6 Metropolitan at Lake Havasu, Arizona and in exchange, Metropolitan provides the Water 7 Authority in San Diego with a like quantity of different water from any source(s). The 2003 8 amendment involved a higher price (set forth in Section 5.2) in return for Metropolitan assigning 9 significant money and water rights worth over $1 billion to the Water Authority. 10 Until recently, Metropolitan and the Water Authority agreed on what the Exchange 11 Agreement and its price term meant. Specifically, the parties agreed that the Exchange Agreement 12 was not a wheeling transaction subject to California Water Code section 1810 et seq. (“the 13 Wheeling Statutes”). “Wheeling” refers to a person or agency’s use of another agency’s water 14 conveyance facility to move the wheeling party’s water from one point to another. See Wat. Code 15 §§ 1810, 1811. The Wheeling Statutes apply only under certain statutory conditions and provide 16 for certain statutory restrictions. Id. § 1810 et seq. 5 The Water Authority—before and after 17 executing the Exchange Agreement—agreed that the contract is not a wheeling transaction 18 subject to the Wheeling Statutes. The Water Authority made these representations to the State 19 Water Resources Control Board, the Superior Court of the State of California, and the California 20 Court of Appeal in multiple proceedings in order to avoid application of the Wheeling Statutes. 21 The Water Authority was successful in each forum. And the parties agreed the price term was 22 based on Metropolitan’s three transportation rate components, not its pre-set wheeling rate. San 23 Diego Cty. Water Auth. v. Metro. Water Dist. of S. California, 12 Cal. App. 5th 1124, 1138 24 2 “The Water Authority” refers to Petitioner, Plaintiff, and Cross-Defendant San Diego County 25 Water Authority. 3 “Metropolitan” refers to Respondent, Defendant, and Cross-Complainant Metropolitan Water 26 District of Southern California. 4 “Exchange Agreement” refers to the operative 2003 agreement as amended. “1998 Exchange 27 Agreement” refers to the original agreement. 5 For example, under the Wheeling Statutes, wheeling may not injure a legal water user, or 28 unreasonably affect instream beneficial uses or the overall economy or the environment of the MANATT, PHELPS & county from which water is being transferred. Wat. Code § 1810(d). PHILLIPS, LLP -1- ATTORNEYS AT LAW METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION SAN FRANCISCO CASE NO. CPF-14-514004 1 (2017), as modified on denial of reh’g (July 18, 2017) (“SDCWA”). (See also 2014 FAC ¶ 43.) 6 2 Now, almost twenty years after the Water Authority proposed and agreed to the 3 consideration package, including the price term, and entered into the Exchange Agreement, the 4 Water Authority takes exactly the opposite position. The Water Authority now contends that the 5 Exchange Agreement is subject to the Wheeling Statutes. Moreover, the Water Authority 6 contends that the Exchange Agreement’s price is different than what the Water Authority 7 proposed and is stated in the agreement. The Water Authority contends that the Wheeling 8 Statutes’ fair compensation provision—which provides for “offsetting benefits” credit if 9 applicable in a given transaction, as determined by the owner of the conveyance system—always 10 mandated the price to be substantially less than the agreement states and as to which the parties 11 have performed since 2003. The Water Authority is wrong. 12 The Water Authority should be estopped from taking totally inconsistent positions—that 13 the Wheeling Statutes did not apply when it served the Water Authority’s purpose but they do 14 apply now to serve a different purpose. Even if judicial estoppel does not prevent the Water 15 Authority’s current position, ordinary contract interpretation principles do. The Exchange 16 Agreement does not mention offsetting benefits in the price term or elsewhere. The consideration 17 package took into account all applicable benefits the Water Authority sought; this we know 18 because the Water Authority proposed the package, including the price term. The Court should 19 reject the Water Authority’s current position and enter summary adjudication in Metropolitan’s 20 favor, consistent with the terms of the agreement as proposed by the Water Authority and the 21 Water Authority’s prior representations to courts and the State Water Resources Control Board. 22 II. BACKGROUND 23 A. The Exchange Agreement 24 Metropolitan is a voluntary cooperative of 26 member public agencies, including the 25 Water Authority. (Metropolitan’s Undisputed Material Fact [“UF”] 1.) Metropolitan delivers 26 6 27 “2014 FAC” refers to the Water Authority’s First Amended Petition/Complaint in the 2014 Action. “2016 SAC” and “2018 SAC” refer to the Second Amended Petition/Complaint in the 28 2016 and 2018 Actions, respectively. Where only the 2014 FAC is cited, the cited paragraph(s) MANATT, PHELPS & are identical to the same paragraphs in all three operative pleadings. PHILLIPS, LLP -2- ATTORNEYS AT LAW METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION SAN FRANCISCO CASE NO. CPF-14-514004 1 wholesale water to its member agencies like the Water Authority from two principal sources: the 2 Colorado River via the Colorado River Aqueduct and the State Water Project (“SWP”) via the 3 California Aqueduct. SDWCA, 12 Cal. App. 5th at 1131. Metropolitan generally delivers a blend 4 of Colorado River water and SWP water. Id. at 1151. 7 5 Metropolitan is one of 29 State Water Contractors with participation rights in the SWP, 6 including water. See SDWCA, 12 Cal. App. 5th at 1134-35. Metropolitan is one of a few 7 California parties with rights to Colorado River water. Id. The Imperial Irrigation District (“IID”), 8 a separate water agency, also has rights to Colorado River water and it has sold conserved 9 Colorado River water to other parties. Id. “The initial purchaser of Imperial’s conserved water 10 was Metropolitan. In 1988, Metropolitan agreed to pay for various projects to conserve water in 11 exchange for which Imperial transferred the conserved water to Metropolitan. In 1998, a decade 12 later, IID and the Water Authority entered a similar agreement [“the IID-Water Authority 13 Transfer Agreement”].” Id. at 1135. (See also UF 2.) 14 IID agreed to transfer up to 200,000 acre-feet of conserved Colorado River water per year 15 to the Water Authority, contingent on Metropolitan agreeing to accept delivery of the “transfer 16 water” from IID at Lake Havasu, Arizona, and deliver a like quantity of water to the Water 17 Authority at its connection to the Metropolitan system in San Diego. (UF 3.) Metropolitan and the 18 Water Authority were unable to negotiate a wheeling agreement for the conveyance of the water 19 and instead, entered into a 30-year exchange agreement. (UF 4.) In the 2010/2012 Actions, the 20 Court of Appeal explained some of the differences between wheeling and exchange agreements: 21 While functionally related, wheeling and exchange agreements are not the same. A wheeling agreement calls for the transportation of 22 water when there is available capacity in the water conveyance system. An exchange agreement promises the delivery of a specified 23 quantity of water. Water is not wheeled unless available, but an exchange agreement requires delivery of an agreed-upon quantity of 24 water every month. Recipients under a wheeling agreement receive less than the transfer amount due to evaporation and other transit 25 losses, but the conveyance system operator bears transit losses under an exchange agreement. As the trial testimony in the present case 26 7 27 State law requires Metropolitan to serve as large an area as is reasonable and practical with SWP water, and where it serves a blend to have the objective that it is at least 50 percent SWP water to 28 the extent reasonable and practicable. Metropolitan Act, Stats. 1969, ch. 209, § 136, Wat. Code MANATT, PHELPS & Appen. § 109. PHILLIPS, LLP -3- ATTORNEYS AT LAW METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION SAN FRANCISCO CASE NO. CPF-14-514004 1 established, the parties here preferred an exchange agreement to a wheeling agreement. The Water Authority wanted guaranteed 2 delivery and Metropolitan wanted the greater operational flexibility of an exchange agreement that permits the use of available facilities 3 and supply sources. 4 (UF 5 [emphasis added].) 5 Under the 1998 Exchange Agreement, the Water Authority agreed to pay Metropolitan 6 $90 per acre-foot, with annual increases of 1.55% for the first 20 years. For years 21 through 30, 7 the Water Authority agreed to pay $80 per acre-foot, with annual increases of 1.44%. (UF 6.) The 8 agreement was conditioned on the State Legislature’s appropriation of $235 million to 9 Metropolitan for projects, including to line the earthen All-American and Coachella Canals to 10 conserve a water supply that Congress had allocated to Metropolitan that would otherwise be lost 11 through seepage (“canal lining water”). (UF 7.) 12 There were no exchanges under the 1998 Exchange Agreement because, as recognized in 13 the agreement, Colorado River water rights first needed to be quantified. In 2003, various water 14 agencies with rights to Colorado River water, including Metropolitan and IID, negotiated 15 numerous agreements collectively referred to as the “Quantification Settlement Agreement” 16 (“QSA”). (UF 8.) As part of the QSA, Metropolitan and the Water Authority amended the 1998 17 Exchange Agreement in 2003. (UF 9.) In re Quantification Settlement Agreement Cases, 201 Cal. 18 App. 4th 758, 788 (2011) (“QSA Cases”). (See also Ex. A [Exch. Agreement], Recital F.) 19 Although the Exchange Agreement price term did not need to change as part of the QSA, the 20 Water Authority proposed two options to Metropolitan. 21 Under Option 1, the price term would remain unchanged. The Water Authority would 22 continue to pay the same price negotiated in the 1998 Exchange Agreement. (UF 10.) Option 2 23 involved a new and different consideration package. Under Option 2, Metropolitan would assign 24 to the Water Authority Metropolitan’s right to approximately 70,000 acre-feet of conserved canal 25 lining water annually for 110 years, as well as Metropolitan’s $235 million legislative 26 appropriation for canal lining and other projects. The Water Authority proposed that in return, it 27 would pay a higher contract price, based on Metropolitan’s unbundled transportation rates. (UF 28 11.) Metropolitan would exchange both the IID water and the canal lining water. (See Exch. MANATT, PHELPS & PHILLIPS, LLP -4- ATTORNEYS AT LAW METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION SAN FRANCISCO CASE NO. CPF-14-514004 1 Agreement ¶ 7.1(a)-(b).) Metropolitan allowed the Water Authority to choose between the two 2 options. (UF 12.) The Water Authority selected Option 2 and Metropolitan agreed. (UF 13-14.) 3 Neither option included a request by the Water Authority for an offsetting benefits determination 4 or credit under the Wheeling Statutes or any other theory. (UF 15.) 5 On October 10, 2003, Metropolitan and the Water Authority entered the amended 6 Exchange Agreement and an Allocation Agreement. (UF 16.) The parties’ consideration package 7 was contained across the two documents: the Exchange Agreement set forth the price, and the 8 Allocation Agreement set forth Metropolitan’s assignment to the Water Authority of its $235 9 million appropriation and the canal lining water for 110 years. (UF 19.) Neither the Exchange 10 Agreement nor the Allocation Agreement included offsetting benefits as part of the consideration 11 package. (UF 20.) The Water Authority agreed that the value of Metropolitan’s assignment of the 12 canal lining water was high; over $1 billion and potentially in the multi-billions. (Ex. Q [4/2/2015 13 Stapleton, 1474:18-1476:14].) The term of the Exchange Agreement is 110 years—until 2112— 14 the same length as the assignment of the canal lining water. (See Exch. Agreement ¶7.1(b); Ex. G 15 [Allocation Agreement] ¶ 4.2.) 8 16 Section 5.2 of the Exchange Agreement set forth the new price term the Water Authority 17 had proposed and selected: 18 The price on the date of Execution of this Agreement shall be Two Hundred Fifty Three Dollars ($253.00). Thereafter, the Price shall be 19 equal to the charge or charges set by Metropolitan’s Board of Directors pursuant to applicable law and regulation and generally 20 applicable to the conveyance of water by Metropolitan on behalf of its member agencies … 21 22 (UF 21.) The terms “wheeling,” “fair compensation,” and “offsetting benefits” do not appear in 23 Section 5.2 of the Exchange Agreement. (UF 22.) The parties agreed the Exchange Agreement 24 price of charges “generally applicable to the conveyance of water by Metropolitan on behalf of its 25 member agencies means the transportation rates components of Metropolitan’s full-service rate: 26 27 8 No indication of any other future determination of any credits was made by SDCWA or any 28 other party and the agreements were validated by operation of law. Water Code § 22762; QSA MANATT, PHELPS & Cases, 201 Cal. App. 4th at 825. PHILLIPS, LLP -5- ATTORNEYS AT LAW METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION SAN FRANCISCO CASE NO. CPF-14-514004 1 the system access rate, system power rate, and water stewardship rate.” (UF 23.) 9 SDCWA, 12 2 Cal. App. 5th at 1138-39. The Court of Appeal explained that in contrast, a recipient of wheeling 3 service does not pay the system power rate and instead pays the actual cost of the power used to 4 transport the water. Id. at 1138. 5 Under the Exchange Agreement, the Water Authority makes the IID and canal lining 6 water available to Metropolitan at Lake Havasu. (Exch. Agreement ¶¶ 3.1(a), 3.5(a).) The water 7 becomes Metropolitan’s water at Lake Havasu. (UF 17.) In return, Metropolitan delivers a like 8 quantity of water from any source(s) in San Diego, in monthly intervals. (UF 18.) 9 B. The Water Authority’s Representations about the Exchange Agreement 10 The Water Authority has consistently referred to the Exchange Agreement as a “good 11 deal” for the Water Authority. Scott Slater, the Water Authority’s lead negotiator of the Exchange 12 Agreement, testified at deposition and trial that Option 2 was his idea and the Exchange 13 Agreement was “absolutely” a “good deal.” (UF 24.) Maureen Stapleton, the Water Authority’s 14 General Manager when the parties negotiated the Exchange Agreement, participated in the 15 negotiations and continued as General Manager for years of Exchange Agreement performance. 16 (UF 25.) She testified at trial in the 2010/2012 Actions that the Exchange Agreement was a “good 17 deal” for the Water Authority. (UF 26.) Nowhere in that testimony did the Water Authority 18 representatives represent that a future offsetting benefits credit was required. See generally Exs. 19 M, P [Slater testimony], Exs. Q-R [Stapleton testimony].) Slater’s and Stapleton’s representations 20 make sense given the robust consideration that the Water Authority received, including 21 Metropolitan’s $235 million legislative appropriation and 110-year allocation of canal lining 22 water. 23 1. Representations to the State Water Resources Control Board. 24 In 2002, the Water Authority and IID jointly petitioned the California State Water 25 Resources Control Board (“SWRCB”) to approve the IID-Water Authority Transfer Agreement 26 and the long-term transfer of conserved water from IID to the Water Authority. (UF 27.) Maureen 27 9 28 Since January 2018, Metropolitan ceased charging the Water Stewardship Rate under the MANATT, PHELPS & Exchange Agreement. PHILLIPS, LLP -6- ATTORNEYS AT LAW METROPOLITAN’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION SAN FRANCISCO CASE NO. CPF-14-514004 1 Stapleton testified at the proceedings that the 1998 Exchange Agreement—which was 2 operationally the same as the Exchange Agreement—was “radically different than a wheeling 3 agreement” because it is a trade of one supply for another, and it is firm regardless of capacity as 4 opposed to contingent on space available. (UF 28.) The SWRCB approved the petition. (UF 29.) 5 2. Representations in the Quantification Settlement Agreement Cases 6 On November 5, 2003—less than one month after the parties executed the Exchange 7 Agreement—several parties initiated litigation to challenge the QSA. One plaintiff, Imperial 8 County, alleged that parties to the QSA had failed to comply with requirements of the Wheeling 9 Statutes to avoid unreasonable economic or environmental effects. See QSA Cases, 201 Cal. App. 10 4th 838-39. (UF 30.) 11 In the QSA Cases, the Water Authority and Metropolitan agreed and represented that the 12 Exchange Agreement was not a wheeling transaction subject to the Wheeling Statutes. The Water 13 Authority and Metropolitan jointly moved for summary adjudication on that issue. They wrote: 14 The contention that the Wheeling Law applies to the QSA and related agreements is wrong. This law only applies in a limited set of 15 circumstances not present in this case …. Both the language of the statute and its legislative history make clear that the principal 16 purposes of the Wheeling Law are to ensure that ‘bona fide transferors’ of water have access to any unused capacity in publicly- 17 owned water conveyance facilities and that the owners of these facilities are fairly compensated for any such use. 18 (UF 31 [quoting 4/1/2009 MSA, 1:11-19].) 19 The Water Authority and Metropolitan also argued that the incorrect, broad interpretation 20 of the Wheeling Statutes advanced by Imperial County would sweep in other agreements in the 21 QSA. (UF 32.) The QSA trial court granted summary adjudication and held that the portion of the 22 Wheeling Statutes at issue there “does not have independent application to transfers, exchanges, 23 sales or leases of water where no use of facilities as otherwise addressed in the Wheeling Statutes 24 … is involved.” (UF 33.) The court also found: “Assuming tha