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1 KEKER, VAN NEST & PETERS LLP
JOHN W. KEKER - # 49092
2 jkeker@keker.com
DAN JACKSON - # 216091 ELECTRONICALLY
3 djackson@keker.com
WARREN A. BRAUNIG - # 243884 F I L E D
Superior Court of California,
4 wbraunig@keker.com County of San Francisco
NICHOLAS S. GOLDBERG - # 273614
5 ngoldberg@keker.com 02/22/2022
633 Battery Street Clerk of the Court
BY: RONNIE OTERO
6 San Francisco, CA 94111-1809 Deputy Clerk
Telephone: (415) 391-5400
7 Facsimile: (415) 397-7188
8 MARK J. HATTAM - # 173667
mhattam@sdcwa.org
9 General Counsel
SAN DIEGO COUNTY WATER AUTHORITY
10 4677 Overland Avenue
San Diego, CA 92123-1233
11 Telephone: (858) 522-6791
Facsimile: (858) 522-6566
12
Attorneys for Petitioner, Plaintiff, and Cross-Defendant EXEMPT FROM FILING FEES
13 SAN DIEGO COUNTY WATER AUTHORITY [GOVERNMENT CODE § 6103]
14
15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 IN AND FOR THE COUNTY OF SAN FRANCISCO
17
SAN DIEGO COUNTY WATER Lead Case No. CPF-14-514004
18 AUTHORITY,
Consolidated with Case Nos. CPF-16-515282
19 Petitioner, Plaintiff and Cross- & CPF-18-516389
Defendant,
20 SAN DIEGO COUNTY WATER
v. AUTHORITY’S NOTICE OF MOTION
21 AND MOTION FOR SUMMARY
METROPOLITAN WATER DISTRICT OF ADJUDICATION IN THE 2014 ACTION
22 SOUTHERN CALIFORNIA; ALL
PERSONS INTERESTED IN THE Date: April 13, 2022
23 VALIDITY OF THE RATES ADOPTED Time: 2:00 p.m.
BY THE METROPOLITAN WATER Dept.: 306
24 DISTRICT OF SOUTHERN CALIFORNIA Judge: Hon. Anne-Christine Massullo
ON APRIL 8, 2014 TO BE EFFECTIVE
25 JANUARY 1, 2015 AND JANUARY 1, Date Filed: May 30, 2014
2016; and DOES 1-10,
26 Trial Date: May 16–27, 2022
Respondents, Defendants and
27 Cross-Complainant.
28
SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR
SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806306
1 TO DEFENDANT METROPOLITAN WATER DISTRICT OF SOUTHERN
2 CALIFORNIA, ALL OTHER PARTIES, AND THEIR COUNSEL OF RECORD:
3 PLEASE TAKE NOTICE that on April 13, 2022, at 2:00 p.m. or as soon thereafter as the
4 matter may be heard, in Department 306 of the Superior Court in and for the County of San
5 Francisco, located at 400 McAllister Street, San Francisco, California 94102, Petitioner, Plaintiff,
6 and Cross-Defendant San Diego County Water Authority (the Water Authority) will and hereby
7 does move, under Section 437c of the Code of Civil Procedure, for summary adjudication of the
8 following causes of action, affirmative defenses, and issues of duty in the 2014 action against
9 Metropolitan Water District of Southern California (Metropolitan):
10 Issue 1: Water Stewardship Rate
11 1. Metropolitan’s first cause of action in its 2014 cross-complaint, for declaratory relief
12 regarding the Water Stewardship Rate, is barred by issue preclusion.
13 Issues 2 to 15: Reasonable Credit for Offsetting Benefits
14 2. Metropolitan has an enforceable duty under the Wheeling Statutes and the Exchange
15 Agreement to charge no more than “fair compensation,” which is defined as
16 “including reasonable credit for any offsetting benefits for the use of the conveyance
17 system.” (Wat. Code, § 1811, subd. (c).)
18 3. Metropolitan’s second cause of action in its 2014 cross-complaint, for declaratory
19 relief regarding offsetting benefits, is barred because Metropolitan has an enforceable
20 duty under the Wheeling Statutes and the Exchange Agreement to charge no more
21 than “fair compensation,” which is defined as “including reasonable credit for any
22 offsetting benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd.
23 (c).)
24 4. Metropolitan’s sixth cause of action in its 2014 cross-complaint, for declaratory relief
25 regarding fair compensation, is barred because Metropolitan has an enforceable duty
26 under the Wheeling Statutes and the Exchange Agreement to charge no more than
27 “fair compensation,” which is defined as “including reasonable credit for any
28 offsetting benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd.
2
SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR
SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806306
1 (c).)
2 5. Metropolitan’s seventh cause of action in its 2014 cross-complaint, for declaratory
3 relief regarding judicial estoppel, is barred because Metropolitan has an enforceable
4 duty under the Wheeling Statutes and the Exchange Agreement to charge no more
5 than “fair compensation,” which is defined as “including reasonable credit for any
6 offsetting benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd.
7 (c).)
8 6. Metropolitan’s eighth cause of action in its 2014 cross-complaint, for declaratory
9 relief regarding offsetting benefits, is barred because Metropolitan has an enforceable
10 duty under the Wheeling Statutes and the Exchange Agreement to charge no more
11 than “fair compensation,” which is defined as “including reasonable credit for any
12 offsetting benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd.
13 (c).)
14 7. Metropolitan’s tenth cause of action in its 2014 cross-complaint, for declaratory relief
15 regarding rights and duties imposed by the Exchange Agreement, is barred because
16 Metropolitan has an enforceable duty under the Wheeling Statutes and the Exchange
17 Agreement to charge no more than “fair compensation,” which is defined as
18 “including reasonable credit for any offsetting benefits for the use of the conveyance
19 system.” (Wat. Code, § 1811, subd. (c).)
20 8. Metropolitan’s eighth affirmative defense in the 2014 action, regarding immunity, is
21 barred because Metropolitan has an enforceable duty under the Wheeling Statutes and
22 the Exchange Agreement to charge no more than “fair compensation,” which is
23 defined as “including reasonable credit for any offsetting benefits for the use of the
24 conveyance system.” (Wat. Code, § 1811, subd. (c).)
25 9. Metropolitan’s ninth affirmative defense in the 2014 action, regarding separation of
26 powers, is barred because Metropolitan has an enforceable duty under the Wheeling
27 Statutes and the Exchange Agreement to charge no more than “fair compensation,”
28 which is defined as “including reasonable credit for any offsetting benefits for the use
3
SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR
SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806306
1 of the conveyance system.” (Wat. Code, § 1811, subd. (c).)
2 10. Metropolitan’s tenth affirmative defense in the 2014 action, regarding mootness, is
3 barred because Metropolitan has an enforceable duty under the Wheeling Statutes and
4 the Exchange Agreement to charge no more than “fair compensation,” which is
5 defined as “including reasonable credit for any offsetting benefits for the use of the
6 conveyance system.” (Wat. Code, § 1811, subd. (c).)
7 11. Metropolitan’s twelfth affirmative defense in the 2014 action, regarding res judicata
8 and collateral estoppel, is barred because Metropolitan has an enforceable duty under
9 the Wheeling Statutes and the Exchange Agreement to charge no more than “fair
10 compensation,” which is defined as “including reasonable credit for any offsetting
11 benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd. (c).)
12 12. Metropolitan’s thirteenth affirmative defense in the 2014 action, regarding validation,
13 is barred because Metropolitan has an enforceable duty under the Wheeling Statutes
14 and the Exchange Agreement to charge no more than “fair compensation,” which is
15 defined as “including reasonable credit for any offsetting benefits for the use of the
16 conveyance system.” (Wat. Code, § 1811, subd. (c).)
17 13. Metropolitan’s fourteenth affirmative defense in the 2014 action, regarding judicial
18 estoppel, is barred because Metropolitan has an enforceable duty under the Wheeling
19 Statutes and the Exchange Agreement to charge no more than “fair compensation,”
20 which is defined as “including reasonable credit for any offsetting benefits for the use
21 of the conveyance system.” (Wat. Code, § 1811, subd. (c).)
22 14. Metropolitan’s twenty-fourth affirmative defense in the 2014 action, regarding
23 standing, is barred because Metropolitan has an enforceable duty under the Wheeling
24 Statutes and the Exchange Agreement to charge no more than “fair compensation,”
25 which is defined as “including reasonable credit for any offsetting benefits for the use
26 of the conveyance system.” (Wat. Code, § 1811, subd. (c).)
27 15. Metropolitan’s twenty-ninth affirmative defense in the 2014 action, regarding
28 improper remedy, is barred because Metropolitan has an enforceable duty under the
4
SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR
SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806306
1 Wheeling Statutes and the Exchange Agreement to charge no more than “fair
2 compensation,” which is defined as “including reasonable credit for any offsetting
3 benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd. (c).)
4 Issues 16 to 25: Contract Defenses
5 16. Metropolitan’s ninth cause of action in its 2014 cross-complaint, regarding
6 reformation of the Exchange Agreement price, is barred by issue preclusion and the
7 validation of the Exchange Agreement.
8 17. Metropolitan’s eleventh cause of action in its 2014 cross complaint, regarding
9 reformation as to rights and duties under the Wheeling Statutes, is barred by issue
10 preclusion and the validation of the Exchange Agreement.
11 18. Metropolitan’s eleventh affirmative defense in the 2014 action, regarding waiver, is
12 barred by issue preclusion and the validation of the Exchange Agreement.
13 19. Metropolitan’s sixteenth affirmative defense in the 2014 action, regarding no breach,
14 is barred by issue preclusion and the validation of the Exchange Agreement.
15 20. Metropolitan’s seventeenth affirmative defense in the 2014 action, regarding consent,
16 is barred by issue preclusion and the validation of the Exchange Agreement.
17 21. Metropolitan’s eighteenth affirmative defense in the 2014 action, regarding estoppel,
18 is barred by issue preclusion and the validation of the Exchange Agreement.
19 22. Metropolitan’s nineteenth affirmative defense in the 2014 action, regarding unclean
20 hands, is barred by issue preclusion and the validation of the Exchange Agreement.
21 23. Metropolitan’s twenty-first affirmative defense in the 2014 action, regarding unjust
22 enrichment, is barred by issue preclusion and the validation of the Exchange
23 Agreement.
24 24. Metropolitan’s twenty-seventh affirmative defense in the 2014 action, regarding
25 mistake of fact, is barred by issue preclusion and the validation of the Exchange
26 Agreement.
27 25. Metropolitan’s twenty-eighth affirmative defense in the 2014 action, regarding
28 mistake of law, is barred by issue preclusion and the validation of the Exchange
5
SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR
SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806306
1 Agreement.
2 Issues 26 to 27: Timeliness Defenses
3 26. Metropolitan’s third affirmative defense in the 2014 action, regarding the statute of
4 limitations, fails as a matter of law.
5 27. Metropolitan’s sixth affirmative defense in the 2014 action, regarding laches, fails as a
6 matter of law.
7 Issues 28 to 29: Claim-Presentation and Dispute-Resolution Defenses
8 28. Metropolitan’s fourth affirmative defense in the 2014 action, regarding the California
9 Government Claims Act, fails as a matter of law.
10 29. Metropolitan’s fifth affirmative defense in the 2014 action, regarding contract dispute
11 resolution, fails as a matter of law.
12 Issues 30 to 32: Proposition 26
13 30. Summary adjudication in favor of the Water Authority on its fifth cause of action in its
14 2014 complaint is appropriate because Proposition 26 applies to Metropolitan’s
15 charges as a matter of law.
16 31. Metropolitan’s third cause of action in its 2014 cross-complaint, for declaratory relief
17 regarding the application of Proposition 26, fails as a matter of law.
18 32. Metropolitan’s twenty-sixth affirmative defense in the 2014 action, regarding the
19 application of Proposition 26, fails as a matter of law.
20 Issues 33 to 34: Government Code Section 54999.7(a)
21 33. Metropolitan’s fourth cause of action in its 2014 cross-complaint, for declaratory relief
22 regarding the application of Government Code Section 54999.7(a), fails as a matter of
23 law.
24 34. Metropolitan’s twenty-fifth affirmative defense in the 2014 action, regarding
25 Government Code Section 54999.7(a), fails as a matter of law.
26 Issues 35 to 36: Cost Causation
27 35. Metropolitan’s fifth cause of action in its 2014 cross-complaint, for declaratory relief
28 regarding cost causation, is barred because the principle of cost causation applies to
6
SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR
SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806306
1 Metropolitan’s charges as a matter of law.
2 36. Metropolitan’s twenty-second affirmative defense in the 2014 action, regarding
3 reasonableness, is barred because the principle of cost causation applies to
4 Metropolitan’s charges as a matter of law.
5 This motion is based on this notice of motion; the accompanying Memorandum of Points
6 and Authorities, the accompanying Separate Statement of Undisputed Facts in the 2014 Action;
7 the accompanying Declaration of Dan Jackson and all the exhibits attached thereto; the
8 accompanying Request for Judicial Notice; all pleadings, records, and papers on file in this
9 action; such evidence and oral argument as may be presented at or before the hearing of this
10 matter; and any other evidence the Court deems appropriate.
11
12 Dated: February 22, 2022 KEKER, VAN NEST & PETERS LLP
13
14 By:
Dan Jackson
15
Attorneys for Petitioner, Plaintiff, and
16 Cross-Defendant
SAN DIEGO COUNTY WATER
17 AUTHORITY
18
19
20
21
22
23
24
25
26
27
28
7
SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR
SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806306
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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)
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1 KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 2 jkeker@keker.com DAN JACKSON - # 216091 ELECTRONICALLY 3 djackson@keker.com WARREN A. BRAUNIG - # 243884 F I L E D Superior Court of California, 4 wbraunig@keker.com County of San Francisco NICHOLAS S. GOLDBERG - # 273614 5 ngoldberg@keker.com 02/22/2022 633 Battery Street Clerk of the Court BY: RONNIE OTERO 6 San Francisco, CA 94111-1809 Deputy Clerk Telephone: (415) 391-5400 7 Facsimile: (415) 397-7188 8 MARK J. HATTAM - # 173667 mhattam@sdcwa.org 9 General Counsel SAN DIEGO COUNTY WATER AUTHORITY 10 4677 Overland Avenue San Diego, CA 92123-1233 11 Telephone: (858) 522-6791 Facsimile: (858) 522-6566 12 Attorneys for Petitioner, Plaintiff, and Cross-Defendant EXEMPT FROM FILING FEES 13 SAN DIEGO COUNTY WATER AUTHORITY [GOVERNMENT CODE § 6103] 14 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 IN AND FOR THE COUNTY OF SAN FRANCISCO 17 SAN DIEGO COUNTY WATER Lead Case No. CPF-14-514004 18 AUTHORITY, Consolidated with Case Nos. CPF-16-515282 19 Petitioner, Plaintiff and Cross- & CPF-18-516389 Defendant, 20 SAN DIEGO COUNTY WATER v. AUTHORITY’S NOTICE OF MOTION 21 AND MOTION FOR SUMMARY METROPOLITAN WATER DISTRICT OF ADJUDICATION IN THE 2014 ACTION 22 SOUTHERN CALIFORNIA; ALL PERSONS INTERESTED IN THE Date: April 13, 2022 23 VALIDITY OF THE RATES ADOPTED Time: 2:00 p.m. BY THE METROPOLITAN WATER Dept.: 306 24 DISTRICT OF SOUTHERN CALIFORNIA Judge: Hon. Anne-Christine Massullo ON APRIL 8, 2014 TO BE EFFECTIVE 25 JANUARY 1, 2015 AND JANUARY 1, Date Filed: May 30, 2014 2016; and DOES 1-10, 26 Trial Date: May 16–27, 2022 Respondents, Defendants and 27 Cross-Complainant. 28 SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806306 1 TO DEFENDANT METROPOLITAN WATER DISTRICT OF SOUTHERN 2 CALIFORNIA, ALL OTHER PARTIES, AND THEIR COUNSEL OF RECORD: 3 PLEASE TAKE NOTICE that on April 13, 2022, at 2:00 p.m. or as soon thereafter as the 4 matter may be heard, in Department 306 of the Superior Court in and for the County of San 5 Francisco, located at 400 McAllister Street, San Francisco, California 94102, Petitioner, Plaintiff, 6 and Cross-Defendant San Diego County Water Authority (the Water Authority) will and hereby 7 does move, under Section 437c of the Code of Civil Procedure, for summary adjudication of the 8 following causes of action, affirmative defenses, and issues of duty in the 2014 action against 9 Metropolitan Water District of Southern California (Metropolitan): 10 Issue 1: Water Stewardship Rate 11 1. Metropolitan’s first cause of action in its 2014 cross-complaint, for declaratory relief 12 regarding the Water Stewardship Rate, is barred by issue preclusion. 13 Issues 2 to 15: Reasonable Credit for Offsetting Benefits 14 2. Metropolitan has an enforceable duty under the Wheeling Statutes and the Exchange 15 Agreement to charge no more than “fair compensation,” which is defined as 16 “including reasonable credit for any offsetting benefits for the use of the conveyance 17 system.” (Wat. Code, § 1811, subd. (c).) 18 3. Metropolitan’s second cause of action in its 2014 cross-complaint, for declaratory 19 relief regarding offsetting benefits, is barred because Metropolitan has an enforceable 20 duty under the Wheeling Statutes and the Exchange Agreement to charge no more 21 than “fair compensation,” which is defined as “including reasonable credit for any 22 offsetting benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd. 23 (c).) 24 4. Metropolitan’s sixth cause of action in its 2014 cross-complaint, for declaratory relief 25 regarding fair compensation, is barred because Metropolitan has an enforceable duty 26 under the Wheeling Statutes and the Exchange Agreement to charge no more than 27 “fair compensation,” which is defined as “including reasonable credit for any 28 offsetting benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd. 2 SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806306 1 (c).) 2 5. Metropolitan’s seventh cause of action in its 2014 cross-complaint, for declaratory 3 relief regarding judicial estoppel, is barred because Metropolitan has an enforceable 4 duty under the Wheeling Statutes and the Exchange Agreement to charge no more 5 than “fair compensation,” which is defined as “including reasonable credit for any 6 offsetting benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd. 7 (c).) 8 6. Metropolitan’s eighth cause of action in its 2014 cross-complaint, for declaratory 9 relief regarding offsetting benefits, is barred because Metropolitan has an enforceable 10 duty under the Wheeling Statutes and the Exchange Agreement to charge no more 11 than “fair compensation,” which is defined as “including reasonable credit for any 12 offsetting benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd. 13 (c).) 14 7. Metropolitan’s tenth cause of action in its 2014 cross-complaint, for declaratory relief 15 regarding rights and duties imposed by the Exchange Agreement, is barred because 16 Metropolitan has an enforceable duty under the Wheeling Statutes and the Exchange 17 Agreement to charge no more than “fair compensation,” which is defined as 18 “including reasonable credit for any offsetting benefits for the use of the conveyance 19 system.” (Wat. Code, § 1811, subd. (c).) 20 8. Metropolitan’s eighth affirmative defense in the 2014 action, regarding immunity, is 21 barred because Metropolitan has an enforceable duty under the Wheeling Statutes and 22 the Exchange Agreement to charge no more than “fair compensation,” which is 23 defined as “including reasonable credit for any offsetting benefits for the use of the 24 conveyance system.” (Wat. Code, § 1811, subd. (c).) 25 9. Metropolitan’s ninth affirmative defense in the 2014 action, regarding separation of 26 powers, is barred because Metropolitan has an enforceable duty under the Wheeling 27 Statutes and the Exchange Agreement to charge no more than “fair compensation,” 28 which is defined as “including reasonable credit for any offsetting benefits for the use 3 SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806306 1 of the conveyance system.” (Wat. Code, § 1811, subd. (c).) 2 10. Metropolitan’s tenth affirmative defense in the 2014 action, regarding mootness, is 3 barred because Metropolitan has an enforceable duty under the Wheeling Statutes and 4 the Exchange Agreement to charge no more than “fair compensation,” which is 5 defined as “including reasonable credit for any offsetting benefits for the use of the 6 conveyance system.” (Wat. Code, § 1811, subd. (c).) 7 11. Metropolitan’s twelfth affirmative defense in the 2014 action, regarding res judicata 8 and collateral estoppel, is barred because Metropolitan has an enforceable duty under 9 the Wheeling Statutes and the Exchange Agreement to charge no more than “fair 10 compensation,” which is defined as “including reasonable credit for any offsetting 11 benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd. (c).) 12 12. Metropolitan’s thirteenth affirmative defense in the 2014 action, regarding validation, 13 is barred because Metropolitan has an enforceable duty under the Wheeling Statutes 14 and the Exchange Agreement to charge no more than “fair compensation,” which is 15 defined as “including reasonable credit for any offsetting benefits for the use of the 16 conveyance system.” (Wat. Code, § 1811, subd. (c).) 17 13. Metropolitan’s fourteenth affirmative defense in the 2014 action, regarding judicial 18 estoppel, is barred because Metropolitan has an enforceable duty under the Wheeling 19 Statutes and the Exchange Agreement to charge no more than “fair compensation,” 20 which is defined as “including reasonable credit for any offsetting benefits for the use 21 of the conveyance system.” (Wat. Code, § 1811, subd. (c).) 22 14. Metropolitan’s twenty-fourth affirmative defense in the 2014 action, regarding 23 standing, is barred because Metropolitan has an enforceable duty under the Wheeling 24 Statutes and the Exchange Agreement to charge no more than “fair compensation,” 25 which is defined as “including reasonable credit for any offsetting benefits for the use 26 of the conveyance system.” (Wat. Code, § 1811, subd. (c).) 27 15. Metropolitan’s twenty-ninth affirmative defense in the 2014 action, regarding 28 improper remedy, is barred because Metropolitan has an enforceable duty under the 4 SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806306 1 Wheeling Statutes and the Exchange Agreement to charge no more than “fair 2 compensation,” which is defined as “including reasonable credit for any offsetting 3 benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd. (c).) 4 Issues 16 to 25: Contract Defenses 5 16. Metropolitan’s ninth cause of action in its 2014 cross-complaint, regarding 6 reformation of the Exchange Agreement price, is barred by issue preclusion and the 7 validation of the Exchange Agreement. 8 17. Metropolitan’s eleventh cause of action in its 2014 cross complaint, regarding 9 reformation as to rights and duties under the Wheeling Statutes, is barred by issue 10 preclusion and the validation of the Exchange Agreement. 11 18. Metropolitan’s eleventh affirmative defense in the 2014 action, regarding waiver, is 12 barred by issue preclusion and the validation of the Exchange Agreement. 13 19. Metropolitan’s sixteenth affirmative defense in the 2014 action, regarding no breach, 14 is barred by issue preclusion and the validation of the Exchange Agreement. 15 20. Metropolitan’s seventeenth affirmative defense in the 2014 action, regarding consent, 16 is barred by issue preclusion and the validation of the Exchange Agreement. 17 21. Metropolitan’s eighteenth affirmative defense in the 2014 action, regarding estoppel, 18 is barred by issue preclusion and the validation of the Exchange Agreement. 19 22. Metropolitan’s nineteenth affirmative defense in the 2014 action, regarding unclean 20 hands, is barred by issue preclusion and the validation of the Exchange Agreement. 21 23. Metropolitan’s twenty-first affirmative defense in the 2014 action, regarding unjust 22 enrichment, is barred by issue preclusion and the validation of the Exchange 23 Agreement. 24 24. Metropolitan’s twenty-seventh affirmative defense in the 2014 action, regarding 25 mistake of fact, is barred by issue preclusion and the validation of the Exchange 26 Agreement. 27 25. Metropolitan’s twenty-eighth affirmative defense in the 2014 action, regarding 28 mistake of law, is barred by issue preclusion and the validation of the Exchange 5 SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806306 1 Agreement. 2 Issues 26 to 27: Timeliness Defenses 3 26. Metropolitan’s third affirmative defense in the 2014 action, regarding the statute of 4 limitations, fails as a matter of law. 5 27. Metropolitan’s sixth affirmative defense in the 2014 action, regarding laches, fails as a 6 matter of law. 7 Issues 28 to 29: Claim-Presentation and Dispute-Resolution Defenses 8 28. Metropolitan’s fourth affirmative defense in the 2014 action, regarding the California 9 Government Claims Act, fails as a matter of law. 10 29. Metropolitan’s fifth affirmative defense in the 2014 action, regarding contract dispute 11 resolution, fails as a matter of law. 12 Issues 30 to 32: Proposition 26 13 30. Summary adjudication in favor of the Water Authority on its fifth cause of action in its 14 2014 complaint is appropriate because Proposition 26 applies to Metropolitan’s 15 charges as a matter of law. 16 31. Metropolitan’s third cause of action in its 2014 cross-complaint, for declaratory relief 17 regarding the application of Proposition 26, fails as a matter of law. 18 32. Metropolitan’s twenty-sixth affirmative defense in the 2014 action, regarding the 19 application of Proposition 26, fails as a matter of law. 20 Issues 33 to 34: Government Code Section 54999.7(a) 21 33. Metropolitan’s fourth cause of action in its 2014 cross-complaint, for declaratory relief 22 regarding the application of Government Code Section 54999.7(a), fails as a matter of 23 law. 24 34. Metropolitan’s twenty-fifth affirmative defense in the 2014 action, regarding 25 Government Code Section 54999.7(a), fails as a matter of law. 26 Issues 35 to 36: Cost Causation 27 35. Metropolitan’s fifth cause of action in its 2014 cross-complaint, for declaratory relief 28 regarding cost causation, is barred because the principle of cost causation applies to 6 SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806306 1 Metropolitan’s charges as a matter of law. 2 36. Metropolitan’s twenty-second affirmative defense in the 2014 action, regarding 3 reasonableness, is barred because the principle of cost causation applies to 4 Metropolitan’s charges as a matter of law. 5 This motion is based on this notice of motion; the accompanying Memorandum of Points 6 and Authorities, the accompanying Separate Statement of Undisputed Facts in the 2014 Action; 7 the accompanying Declaration of Dan Jackson and all the exhibits attached thereto; the 8 accompanying Request for Judicial Notice; all pleadings, records, and papers on file in this 9 action; such evidence and oral argument as may be presented at or before the hearing of this 10 matter; and any other evidence the Court deems appropriate. 11 12 Dated: February 22, 2022 KEKER, VAN NEST & PETERS LLP 13 14 By: Dan Jackson 15 Attorneys for Petitioner, Plaintiff, and 16 Cross-Defendant SAN DIEGO COUNTY WATER 17 AUTHORITY 18 19 20 21 22 23 24 25 26 27 28 7 SAN DIEGO COUNTY WATER AUTHORITY’S NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806306