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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 SEPARATE STATEMENT OF
v. UNDISPUTED MATERIAL FACTS IN
21 SUPPORT OF SAN DIEGO COUNTY
METROPOLITAN WATER DISTRICT OF WATER AUTHORITY’S MOTION FOR
22 SOUTHERN CALIFORNIA; ALL SUMMARY ADJUDICATION IN THE
PERSONS INTERESTED IN THE 2014 ACTION
23 VALIDITY OF THE RATES ADOPTED
BY THE METROPOLITAN WATER Date: April 13, 2022
24 DISTRICT OF SOUTHERN CALIFORNIA Time: 2:00 p.m.
ON APRIL 8, 2014 TO BE EFFECTIVE Dept.: 306
25 JANUARY 1, 2015 AND JANUARY 1, Judge: Hon. Anne-Christine Massullo
2016; and DOES 1-10,
26 Date Filed: May 30, 2014
Respondents, Defendants and
27 Cross-Complainant. Trial Date: May 16–27, 2022
28
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806304
1 Under California Code of Civil Procedure Section 437 c(b)(1) and California Rule of
2 Court 3.1350(d), Petitioner, Plaintiff and Cross-Defendant San Diego County Water Authority
3 (Water Authority) submits this Separate Statement of Undisputed Material Facts in Support of its
4 Motion for Summary Adjudication against Respondent, Defendant and Cross-Complainant
5 Metropolitan Water District of Southern California (Metropolitan). The evidence cited in this
6 Separate Statement is set forth in the Declaration of Dan Jackson and the exhibits attached
7 thereto, as well as the pleadings on file in this consolidated action. Unless otherwise noted,
8 exhibit references herein refer to the Jackson Declaration. The Water Authority also requests
9 judicial notice of the exhibits in the accompanying Request for Judicial Notice.
10 Undisputed Material Facts Warranting Summary Adjudication
11 A. Issue 1 (see Memorandum of Points and Authorities § III.A)
12 Issue 1: Metropolitan’s first cause of action in its 2014 cross-complaint, for declaratory relief
regarding the Water Stewardship Rate, is barred by issue preclusion.
13
14 The Water Authority’s undisputed Metropolitan’s response and supporting
material facts and supporting evidence:
15 evidence:
On April 24, 2014, this Court issued its
16 1. “Statement of Decision on Rate Setting
Challenges” in CPF-10-510830 and
17
CPF-12-512466 (the “prior cases”). (Ex.
18 1.)
On August 28, 2015, this Court issued its
19 2. second “Statement of Decision” in the
prior cases. (Ex. 2.)
20 The California Court of Appeal, First
3. District, Division 3, issued its decision in
21
San Diego County Water Authority v.
22 Metropolitan Water Dist. of Southern
California (2017) 12 Cal.App.5th 1124
23 (SDCWA I), as modified on denial of
rehearing on July 18, 2017. (Ex. 5.)
24 On remand from SDCWA I, this Court
4. issued its Judgment in the prior cases on
25
or about August 13, 2020. (Ex. 6.)
26 On or about August 14, 2020, this Court
5. issued its Peremptory Writ of Mandate in
27 the prior cases. (Ex. 7.)
28
2
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806304
1 On September 21, 2021, the California
6. Court of Appeal, First District, Division
2 3, affirmed this Court’s Judgment and
3 Peremptory Writ of Mandate in San
Diego County Water Authority v.
4 Metropolitan Water Dist. of Southern
California (Cal. Ct. App., Sept. 21,
5 2021, No. A161144) 2021 WL 4272331
(SDCWA II). (Ex. 8.)
6
The Court of Appeal stated (in SDCWA
7. II) that its prior determination (in
7
SDCWA I) regarding Metropolitan’s
8 Water Stewardship Rate “concerned a
particular category of costs (‘water
9 stewardship rate’) which did not vary
from year to year”; that “there was no
10
need nor did we intend to limit our
11 determination to any particular rate
year.” (Ex. 8 at p. *5.)
12 The Court of Appeal stated (in SDCWA
8. II): “That Metropolitan apparently
13 believes that in some future rate year it
14 can recover a water stewardship rate as a
cost subcomponent of its transportation
15 costs in its wheeling rate or the
transportation rates charged under the
16 exchange agreement, thereby
contravening our prior opinion, supports
17 the trial court’s continuing jurisdiction to
18 assure compliance with its judgment.”
(Ex. 8 at p. *6.)
19
B. Issues 2–15 (see Memorandum of Points and Authorities § III.B)
20
Issue 2: Metropolitan has an enforceable duty under the Wheeling Statutes and the
21 Exchange Agreement to charge no more than “fair compensation,” which is defined as “including
reasonable credit for any offsetting benefits for the use of the conveyance system.” (Wat. Code, §
22 1
1811, subd. (c).)
23
The Water Authority’s undisputed Metropolitan’s response and supporting
24 material facts and supporting evidence:
evidence:
25
1
26 As discussed in Section III.B of the Water Authority’s accompanying Memorandum of Points
and Authorities, several of Metropolitan’s cross-claims and affirmative defenses fail for the same
27 fundamental reasons. Each of those is specifically and separately addressed in Issues 3 to 14
below, per Rule of Court 3.1350, but note, for convenience’s sake, that the facts and evidence for
28 Issues 3 to 15 are the same as those set forth below for Issue 2.
3
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806304
1 Paragraph 5.2 of the 2003 Amended and
9. Restated Exchange Agreement states that
2 “the Price shall be equal to the charge or
3 charges set by Metropolitan’s Board of
Directors pursuant to applicable law and
4 regulation and generally applicable to
the conveyance of water by Metropolitan
5 on behalf of its member agencies.” (Ex.
3, ¶ 5.2.)
6
In SDCWA I, the Court of Appeal stated:
10. “A water agency’s payments to its
7
members to encourage water
8 conservation is outside the scope of
recoverable costs contemplated by the
9 wheeling statute,” and therefore,
Metropolitan’s “water stewardship rate
10
used to fund conservation programs” is
11 not “recoverable as ‘fair compensation’
for use of the conveyance system.” (Ex.
12 5, SDCWA I, supra, 12 Cal.App.5th at
pp. 1150–51.)
13 In SDCWA I, the Court of Appeal further
11. stated that “to the extent that the price
14
Metropolitan charged the Water
15 Authority for wheeling was based on an
unlawful rate, there was a breach of the
16 amended exchange agreement providing
for future prices ‘equal to the charge or
17 charges set by Metropolitan's Board of
18 Directors pursuant to applicable law and
regulation and generally applicable to
19 the conveyance of water by Metropolitan
on behalf of its member agencies.’” (Ex.
20 5, SDCWA I, supra, 12 Cal.App.5th at p.
1154.)
21
In SDCWA I, the Court of Appeal stated
12. that “the evidence sufficiently
22
establishes a violation of the contractual
23 price term, not just the wheeling rate,
and actionable injury by payment of a
24 water stewardship rate unrelated to the
transportation services provided.” (Ex.
25
5, SDCWA I, supra, 12 Cal.App.5th at p.
26 1154.)
In SDCWA II, the Court of Appeal
27 13. stated: “In its 2010 and 2012 actions, the
Water Authority’s requests for
28
4
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806304
1 mandamus were predicated on a claim
that Metropolitan failed to act as
2 required by law in determining ‘fair
3 compensation’ for a wheeler’s use of an
owner’s water conveyance system for
4 transporting water under both the
Wheeling Statutes and the parties’
5 exchange agreement under which
Metropolitan had a duty to calculate
6
water rates pursuant to applicable law
7 and regulation.” (Ex. 8, SDCWA II,
supra, 2021 WL 4272331, at p. *7.)
8 The Court of Appeal stated: “Thus, the
14. writ properly compels Metropolitan to
9 perform its clear and present legal
obligation, pursuant to Water Code
10
sections 1810 and 1812, requiring the
11 owner of a water conveyance facility to
timely determine fair compensation for
12 use of its water conveyance services for
the benefit of the Water Authority,
13 which is an entity entitled to use the
14 facilities upon the payment of fair
compensation.” (Ex. 8, SDCWA II,
15 supra, 2021 WL 4272331, at p. *8.)
Water Code section 1811, subdivision
16 15. (c), defines “fair compensation” as
“including reasonable credit for any
17 offsetting benefits for the use of the
18 conveyance system.” (See Ex. 9 at pp.
6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex.
19 13.)
In SDCWA I, the Court of Appeal stated:
20 16. “Metropolitan has made several
assertions on appeal denying an
21
enforceable contract and actionable
22 breach but none is persuasive.” (Ex. 5,
SDCWA I, supra, 12 Cal.App.5th at p.
23 1154; see also Ex. 4 at pp. 114–130.)
The Court of Appeal stated: “Fees and
24 17. rates are ‘subject to attack’ when
reenacted, even if they are essentially the
25
same as previous ones.” (Ex. 5, SDCWA
26 I, supra, 12 Cal.App.5th at p. 1142; see
also Ex. 9 at pp. 7–10, 12–13.)
27
Issue 3: Metropolitan’s second cause of action in its 2014 cross-complaint, for declaratory relief
28
5
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806304
1 regarding offsetting benefits, is barred because Metropolitan has an enforceable duty under the
Wheeling Statutes and the Exchange Agreement to charge no more than “fair compensation,”
2 which is defined as “including reasonable credit for any offsetting benefits for the use of the
3 conveyance system.” (Wat. Code, § 1811, subd. (c).)
4 The Water Authority’s undisputed Metropolitan’s response and supporting
material facts and supporting evidence:
5 evidence:
Paragraph 5.2 of the 2003 Amended and
6 18. Restated Exchange Agreement states that
7 “the Price shall be equal to the charge or
charges set by Metropolitan’s Board of
8 Directors pursuant to applicable law and
regulation and generally applicable to
9 the conveyance of water by Metropolitan
on behalf of its member agencies.” (Ex.
10
3, ¶ 5.2.)
11 In SDCWA I, the Court of Appeal stated:
19. “A water agency’s payments to its
12 members to encourage water
conservation is outside the scope of
13 recoverable costs contemplated by the
14 wheeling statute,” and therefore,
Metropolitan’s “water stewardship rate
15 used to fund conservation programs” is
not “recoverable as ‘fair compensation’
16 for use of the conveyance system.” (Ex.
5, SDCWA I, supra, 12 Cal.App.5th at
17 pp. 1150–51.)
18 In SDCWA I, the Court of Appeal further
20. stated that “to the extent that the price
19 Metropolitan charged the Water
Authority for wheeling was based on an
20 unlawful rate, there was a breach of the
amended exchange agreement providing
21
for future prices ‘equal to the charge or
22 charges set by Metropolitan's Board of
Directors pursuant to applicable law and
23 regulation and generally applicable to
the conveyance of water by Metropolitan
24 on behalf of its member agencies.’” (Ex.
5, SDCWA I, supra, 12 Cal.App.5th at p.
25
1154.)
26 In SDCWA I, the Court of Appeal stated
21. that “the evidence sufficiently
27 establishes a violation of the contractual
price term, not just the wheeling rate,
28
6
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806304
1 and actionable injury by payment of a
water stewardship rate unrelated to the
2 transportation services provided.” (Ex.
3 5, SDCWA I, supra, 12 Cal.App.5th at p.
1154.)
4 In SDCWA II, the Court of Appeal
22. stated: “In its 2010 and 2012 actions, the
5 Water Authority’s requests for
mandamus were predicated on a claim
6
that Metropolitan failed to act as
7 required by law in determining ‘fair
compensation’ for a wheeler’s use of an
8 owner’s water conveyance system for
transporting water under both the
9 Wheeling Statutes and the parties’
exchange agreement under which
10
Metropolitan had a duty to calculate
11 water rates pursuant to applicable law
and regulation.” (Ex. 8, SDCWA II,
12 supra, 2021 WL 4272331, at p. *7.)
The Court of Appeal stated: “Thus, the
13 23. writ properly compels Metropolitan to
14 perform its clear and present legal
obligation, pursuant to Water Code
15 sections 1810 and 1812, requiring the
owner of a water conveyance facility to
16 timely determine fair compensation for
use of its water conveyance services for
17 the benefit of the Water Authority,
18 which is an entity entitled to use the
facilities upon the payment of fair
19 compensation.” (Ex. 8, SDCWA II,
supra, 2021 WL 4272331, at p. *8.)
20 Water Code section 1811, subdivision
24. (c), defines “fair compensation” as
21
“including reasonable credit for any
22 offsetting benefits for the use of the
conveyance system.” (See Ex. 9 at pp.
23 6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex.
13.)
24 In SDCWA I, the Court of Appeal stated:
25. “Metropolitan has made several
25
assertions on appeal denying an
26 enforceable contract and actionable
breach but none is persuasive.” (Ex. 5,
27 SDCWA I, supra, 12 Cal.App.5th at p.
1154; see also Ex. 4 at pp. 114–130.)
28
7
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806304
1 The Court of Appeal stated: “Fees and
26. rates are ‘subject to attack’ when
2 reenacted, even if they are essentially the
3 same as previous ones.” (Ex. 5, SDCWA
I, supra, 12 Cal.App.5th at p. 1142; see
4 also Ex. 9 at pp. 7–10, 12–13.)
5 Issue 4: Metropolitan’s sixth cause of action in its 2014 cross-complaint, for declaratory relief
regarding fair compensation, is barred because Metropolitan has an enforceable duty under the
6
Wheeling Statutes and the Exchange Agreement to charge no more than “fair compensation,”
7 which is defined as “including reasonable credit for any offsetting benefits for the use of the
conveyance system.” (Wat. Code, § 1811, subd. (c).)
8
The Water Authority’s undisputed Metropolitan’s response and supporting
9 material facts and supporting evidence:
10 evidence:
Paragraph 5.2 of the 2003 Amended and
27. Restated Exchange Agreement states that
11
“the Price shall be equal to the charge or
12 charges set by Metropolitan’s Board of
Directors pursuant to applicable law and
13 regulation and generally applicable to
14 the conveyance of water by Metropolitan
on behalf of its member agencies.” (Ex.
15 3, ¶ 5.2.)
In SDCWA I, the Court of Appeal stated:
16 28. “A water agency’s payments to its
members to encourage water
17
conservation is outside the scope of
18 recoverable costs contemplated by the
wheeling statute,” and therefore,
19 Metropolitan’s “water stewardship rate
used to fund conservation programs” is
20 not “recoverable as ‘fair compensation’
for use of the conveyance system.” (Ex.
21
5, SDCWA I, supra, 12 Cal.App.5th at
22 pp. 1150–51.)
In SDCWA I, the Court of Appeal further
23 29. stated that “to the extent that the price
Metropolitan charged the Water
24 Authority for wheeling was based on an
25 unlawful rate, there was a breach of the
amended exchange agreement providing
26 for future prices ‘equal to the charge or
charges set by Metropolitan's Board of
27 Directors pursuant to applicable law and
regulation and generally applicable to
28
8
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806304
1 the conveyance of water by Metropolitan
on behalf of its member agencies.’” (Ex.
2 5, SDCWA I, supra, 12 Cal.App.5th at p.
3 1154.)
In SDCWA I, the Court of Appeal stated
30. that “the evidence sufficiently
4
establishes a violation of the contractual
5 price term, not just the wheeling rate,
and actionable injury by payment of a
6
water stewardship rate unrelated to the
7 transportation services provided.” (Ex.
5, SDCWA I, supra, 12 Cal.App.5th at p.
8 1154.)
In SDCWA II, the Court of Appeal
9 31. stated: “In its 2010 and 2012 actions, the
10 Water Authority’s requests for
mandamus were predicated on a claim
11 that Metropolitan failed to act as
required by law in determining ‘fair
12 compensation’ for a wheeler’s use of an
owner’s water conveyance system for
13 transporting water under both the
14 Wheeling Statutes and the parties’
exchange agreement under which
15 Metropolitan had a duty to calculate
water rates pursuant to applicable law
16 and regulation.” (Ex. 8, SDCWA II,
supra, 2021 WL 4272331, at p. *7.)
17
The Court of Appeal stated: “Thus, the
32. writ properly compels Metropolitan to
18
perform its clear and present legal
19 obligation, pursuant to Water Code
sections 1810 and 1812, requiring the
20 owner of a water conveyance facility to
timely determine fair compensation for
21
use of its water conveyance services for
22 the benefit of the Water Authority,
which is an entity entitled to use the
23 facilities upon the payment of fair
compensation.” (Ex. 8, SDCWA II,
24 supra, 2021 WL 4272331, at p. *8.)
Water Code section 1811, subdivision
25 33. (c), defines “fair compensation” as
26 “including reasonable credit for any
offsetting benefits for the use of the
27 conveyance system.” (See Ex. 9 at pp.
6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex.
28
9
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806304
1 13.)
In SDCWA I, the Court of Appeal stated:
2 34. “Metropolitan has made several
3 assertions on appeal denying an
enforceable contract and actionable
4 breach but none is persuasive.” (Ex. 5,
SDCWA I, supra, 12 Cal.App.5th at p.
5 1154; see also Ex. 4 at pp. 114–130.)
The Court of Appeal stated: “Fees and
6 35. rates are ‘subject to attack’ when
7 reenacted, even if they are essentially the
same as previous ones.” (Ex. 5, SDCWA
8 I, supra, 12 Cal.App.5th at p. 1142; see
also Ex. 9 at pp. 7–10, 12–13.)
9
10 Issue 5: Metropolitan’s seventh cause of action in its 2014 cross-complaint, for declaratory relief
regarding judicial estoppel, is barred because Metropolitan has an enforceable duty under the
11 Wheeling Statutes and the Exchange Agreement to charge no more than “fair compensation,”
which is defined as “including reasonable credit for any offsetting benefits for the use of the
12 conveyance system.” (Wat. Code, § 1811, subd. (c).)
13 The Water Authority’s undisputed Metropolitan’s response and supporting
14 material facts and supporting evidence:
evidence:
15 Paragraph 5.2 of the 2003 Amended and
36. Restated Exchange Agreement states that
16 “the Price shall be equal to the charge or
charges set by Metropolitan’s Board of
17
Directors pursuant to applicable law and
18 regulation and generally applicable to
the conveyance of water by Metropolitan
19 on behalf of its member agencies.” (Ex.
3, ¶ 5.2.)
20 In SDCWA I, the Court of Appeal stated:
37. “A water agency’s payments to its
21
members to encourage water
22 conservation is outside the scope of
recoverable costs contemplated by the
23 wheeling statute,” and therefore,
Metropolitan’s “water stewardship rate
24 used to fund conservation programs” is
25 not “recoverable as ‘fair compensation’
for use of the conveyance system.” (Ex.
26 5, SDCWA I, supra, 12 Cal.App.5th at
pp. 1150–51.)
27 In SDCWA I, the Court of Appeal further
38. stated that “to the extent that the price
28
10
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806304
1 Metropolitan charged the Water
Authority for wheeling was based on an
2 unlawful rate, there was a breach of the
3 amended exchange agreement providing
for future prices ‘equal to the charge or
4 charges set by Metropolitan's Board of
Directors pursuant to applicable law and
5 regulation and generally applicable to
the conveyance of water by Metropolitan
6
on behalf of its member agencies.’” (Ex.
7 5, SDCWA I, supra, 12 Cal.App.5th at p.
1154.)
8 In SDCWA I, the Court of Appeal stated
39. that “the evidence sufficiently
9 establishes a violation of the contractual
price term, not just the wheeling rate,
10
and actionable injury by payment of a
11 water stewardship rate unrelated to the
transportation services provided.” (Ex.
12 5, SDCWA I, supra, 12 Cal.App.5th at p.
1154.)
13 In SDCWA II, the Court of Appeal
40. stated: “In its 2010 and 2012 actions, the
14
Water Authority’s requests for
15 mandamus were predicated on a claim
that Metropolitan failed to act as
16 required by law in determining ‘fair
compensation’ for a wheeler’s use of an
17 owner’s water conveyance system for
18 transporting water under both the
Wheeling Statutes and the parties’
19 exchange agreement under which
Metropolitan had a duty to calculate
20 water rates pursuant to applicable law
and regulation.” (Ex. 8, SDCWA II,
21
supra, 2021 WL 4272331, at p. *7.)
22 The Court of Appeal stated: “Thus, the
41. writ properly compels Metropolitan to
23 perform its clear and present legal
obligation, pursuant to Water Code
24 sections 1810 and 1812, requiring the
owner of a water conveyance facility to
25
timely determine fair compensation for
26 use of its water conveyance services for
the benefit of the Water Authority,
27 which is an entity entitled to use the
facilities upon the payment of fair
28
11
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389
1806304
1 compensation.” (Ex. 8, SDCWA II,
supra, 2021 WL 4272331, at p. *8.)
2
Water Code section 1811, subdivision
42. (c), defines “fair compensation” as
3
“including reasonable credit for any
4 offsetting benefits for the use of the
conveyance system.” (See Ex. 9 at pp.
5 6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex.
13.)
6
In SDCWA I, the Court of Appeal stated:
43. “Metropolitan has made several
7
assertions on appeal denying an
8 enforceable contract and actionable
breach but none is persuasive.” (Ex. 5,
9 SDCWA I, supra, 12 Cal.App.5th at p.
10 1154; see also Ex. 4 at pp. 114–130.)
The Court of Appeal stated: “Fees and
44. rates are ‘subject to attack’ when
11
reenacted, even if they are essentially the
12 same as previous ones.” (Ex. 5, SDCWA
I, supra, 12 Cal.App.5th at p. 1142; see
13 also Ex. 9 at pp. 7–10, 12–13.)
14
Issue 6: Metropolitan’s eighth cause of action in its 2014 cross-complaint, for declaratory relief
15 regarding offsetting benefits, is barred because Metropolitan has an enforceable duty under the
Wheeling Statutes and the Exchange Agreement to charge no more than “fair compensation,”
16 which is defined as “including reasonable credit for any offsetting benefits for the use of the
conveyance system.” (Wat. Code, § 1811, subd. (c).)
17
18 The Water Authority’s undisputed Metropolitan’s response and supporting
material facts and supporting evidence:
19 evidence:
Paragraph 5.2 of the 2003 Amended and
20 45. Restated Exchange Agreement states that
21 “the Price shall be equal to the charge or
charges set by Metropolitan’s Board of
22 Directors pursuant to applicable law and
regulation and generally applicable to
23 the conveyance of water by Metropolitan
on behalf of its member agencies.” (Ex.
24 3, ¶ 5.2.)
25 In SDCWA I, the Court of Appeal stated:
46. “A water agency’s payments to its
26 members to encourage water
conservation is outside the scope of
27 recoverable costs contemplated by the
wheeling statute,” and therefore,
28
12
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO
COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION
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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 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 SEPARATE STATEMENT OF v. UNDISPUTED MATERIAL FACTS IN 21 SUPPORT OF SAN DIEGO COUNTY METROPOLITAN WATER DISTRICT OF WATER AUTHORITY’S MOTION FOR 22 SOUTHERN CALIFORNIA; ALL SUMMARY ADJUDICATION IN THE PERSONS INTERESTED IN THE 2014 ACTION 23 VALIDITY OF THE RATES ADOPTED BY THE METROPOLITAN WATER Date: April 13, 2022 24 DISTRICT OF SOUTHERN CALIFORNIA Time: 2:00 p.m. ON APRIL 8, 2014 TO BE EFFECTIVE Dept.: 306 25 JANUARY 1, 2015 AND JANUARY 1, Judge: Hon. Anne-Christine Massullo 2016; and DOES 1-10, 26 Date Filed: May 30, 2014 Respondents, Defendants and 27 Cross-Complainant. Trial Date: May 16–27, 2022 28 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806304 1 Under California Code of Civil Procedure Section 437 c(b)(1) and California Rule of 2 Court 3.1350(d), Petitioner, Plaintiff and Cross-Defendant San Diego County Water Authority 3 (Water Authority) submits this Separate Statement of Undisputed Material Facts in Support of its 4 Motion for Summary Adjudication against Respondent, Defendant and Cross-Complainant 5 Metropolitan Water District of Southern California (Metropolitan). The evidence cited in this 6 Separate Statement is set forth in the Declaration of Dan Jackson and the exhibits attached 7 thereto, as well as the pleadings on file in this consolidated action. Unless otherwise noted, 8 exhibit references herein refer to the Jackson Declaration. The Water Authority also requests 9 judicial notice of the exhibits in the accompanying Request for Judicial Notice. 10 Undisputed Material Facts Warranting Summary Adjudication 11 A. Issue 1 (see Memorandum of Points and Authorities § III.A) 12 Issue 1: Metropolitan’s first cause of action in its 2014 cross-complaint, for declaratory relief regarding the Water Stewardship Rate, is barred by issue preclusion. 13 14 The Water Authority’s undisputed Metropolitan’s response and supporting material facts and supporting evidence: 15 evidence: On April 24, 2014, this Court issued its 16 1. “Statement of Decision on Rate Setting Challenges” in CPF-10-510830 and 17 CPF-12-512466 (the “prior cases”). (Ex. 18 1.) On August 28, 2015, this Court issued its 19 2. second “Statement of Decision” in the prior cases. (Ex. 2.) 20 The California Court of Appeal, First 3. District, Division 3, issued its decision in 21 San Diego County Water Authority v. 22 Metropolitan Water Dist. of Southern California (2017) 12 Cal.App.5th 1124 23 (SDCWA I), as modified on denial of rehearing on July 18, 2017. (Ex. 5.) 24 On remand from SDCWA I, this Court 4. issued its Judgment in the prior cases on 25 or about August 13, 2020. (Ex. 6.) 26 On or about August 14, 2020, this Court 5. issued its Peremptory Writ of Mandate in 27 the prior cases. (Ex. 7.) 28 2 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806304 1 On September 21, 2021, the California 6. Court of Appeal, First District, Division 2 3, affirmed this Court’s Judgment and 3 Peremptory Writ of Mandate in San Diego County Water Authority v. 4 Metropolitan Water Dist. of Southern California (Cal. Ct. App., Sept. 21, 5 2021, No. A161144) 2021 WL 4272331 (SDCWA II). (Ex. 8.) 6 The Court of Appeal stated (in SDCWA 7. II) that its prior determination (in 7 SDCWA I) regarding Metropolitan’s 8 Water Stewardship Rate “concerned a particular category of costs (‘water 9 stewardship rate’) which did not vary from year to year”; that “there was no 10 need nor did we intend to limit our 11 determination to any particular rate year.” (Ex. 8 at p. *5.) 12 The Court of Appeal stated (in SDCWA 8. II): “That Metropolitan apparently 13 believes that in some future rate year it 14 can recover a water stewardship rate as a cost subcomponent of its transportation 15 costs in its wheeling rate or the transportation rates charged under the 16 exchange agreement, thereby contravening our prior opinion, supports 17 the trial court’s continuing jurisdiction to 18 assure compliance with its judgment.” (Ex. 8 at p. *6.) 19 B. Issues 2–15 (see Memorandum of Points and Authorities § III.B) 20 Issue 2: Metropolitan has an enforceable duty under the Wheeling Statutes and the 21 Exchange Agreement to charge no more than “fair compensation,” which is defined as “including reasonable credit for any offsetting benefits for the use of the conveyance system.” (Wat. Code, § 22 1 1811, subd. (c).) 23 The Water Authority’s undisputed Metropolitan’s response and supporting 24 material facts and supporting evidence: evidence: 25 1 26 As discussed in Section III.B of the Water Authority’s accompanying Memorandum of Points and Authorities, several of Metropolitan’s cross-claims and affirmative defenses fail for the same 27 fundamental reasons. Each of those is specifically and separately addressed in Issues 3 to 14 below, per Rule of Court 3.1350, but note, for convenience’s sake, that the facts and evidence for 28 Issues 3 to 15 are the same as those set forth below for Issue 2. 3 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806304 1 Paragraph 5.2 of the 2003 Amended and 9. Restated Exchange Agreement states that 2 “the Price shall be equal to the charge or 3 charges set by Metropolitan’s Board of Directors pursuant to applicable law and 4 regulation and generally applicable to the conveyance of water by Metropolitan 5 on behalf of its member agencies.” (Ex. 3, ¶ 5.2.) 6 In SDCWA I, the Court of Appeal stated: 10. “A water agency’s payments to its 7 members to encourage water 8 conservation is outside the scope of recoverable costs contemplated by the 9 wheeling statute,” and therefore, Metropolitan’s “water stewardship rate 10 used to fund conservation programs” is 11 not “recoverable as ‘fair compensation’ for use of the conveyance system.” (Ex. 12 5, SDCWA I, supra, 12 Cal.App.5th at pp. 1150–51.) 13 In SDCWA I, the Court of Appeal further 11. stated that “to the extent that the price 14 Metropolitan charged the Water 15 Authority for wheeling was based on an unlawful rate, there was a breach of the 16 amended exchange agreement providing for future prices ‘equal to the charge or 17 charges set by Metropolitan's Board of 18 Directors pursuant to applicable law and regulation and generally applicable to 19 the conveyance of water by Metropolitan on behalf of its member agencies.’” (Ex. 20 5, SDCWA I, supra, 12 Cal.App.5th at p. 1154.) 21 In SDCWA I, the Court of Appeal stated 12. that “the evidence sufficiently 22 establishes a violation of the contractual 23 price term, not just the wheeling rate, and actionable injury by payment of a 24 water stewardship rate unrelated to the transportation services provided.” (Ex. 25 5, SDCWA I, supra, 12 Cal.App.5th at p. 26 1154.) In SDCWA II, the Court of Appeal 27 13. stated: “In its 2010 and 2012 actions, the Water Authority’s requests for 28 4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806304 1 mandamus were predicated on a claim that Metropolitan failed to act as 2 required by law in determining ‘fair 3 compensation’ for a wheeler’s use of an owner’s water conveyance system for 4 transporting water under both the Wheeling Statutes and the parties’ 5 exchange agreement under which Metropolitan had a duty to calculate 6 water rates pursuant to applicable law 7 and regulation.” (Ex. 8, SDCWA II, supra, 2021 WL 4272331, at p. *7.) 8 The Court of Appeal stated: “Thus, the 14. writ properly compels Metropolitan to 9 perform its clear and present legal obligation, pursuant to Water Code 10 sections 1810 and 1812, requiring the 11 owner of a water conveyance facility to timely determine fair compensation for 12 use of its water conveyance services for the benefit of the Water Authority, 13 which is an entity entitled to use the 14 facilities upon the payment of fair compensation.” (Ex. 8, SDCWA II, 15 supra, 2021 WL 4272331, at p. *8.) Water Code section 1811, subdivision 16 15. (c), defines “fair compensation” as “including reasonable credit for any 17 offsetting benefits for the use of the 18 conveyance system.” (See Ex. 9 at pp. 6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex. 19 13.) In SDCWA I, the Court of Appeal stated: 20 16. “Metropolitan has made several assertions on appeal denying an 21 enforceable contract and actionable 22 breach but none is persuasive.” (Ex. 5, SDCWA I, supra, 12 Cal.App.5th at p. 23 1154; see also Ex. 4 at pp. 114–130.) The Court of Appeal stated: “Fees and 24 17. rates are ‘subject to attack’ when reenacted, even if they are essentially the 25 same as previous ones.” (Ex. 5, SDCWA 26 I, supra, 12 Cal.App.5th at p. 1142; see also Ex. 9 at pp. 7–10, 12–13.) 27 Issue 3: Metropolitan’s second cause of action in its 2014 cross-complaint, for declaratory relief 28 5 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806304 1 regarding offsetting benefits, is barred because Metropolitan has an enforceable duty under the Wheeling Statutes and the Exchange Agreement to charge no more than “fair compensation,” 2 which is defined as “including reasonable credit for any offsetting benefits for the use of the 3 conveyance system.” (Wat. Code, § 1811, subd. (c).) 4 The Water Authority’s undisputed Metropolitan’s response and supporting material facts and supporting evidence: 5 evidence: Paragraph 5.2 of the 2003 Amended and 6 18. Restated Exchange Agreement states that 7 “the Price shall be equal to the charge or charges set by Metropolitan’s Board of 8 Directors pursuant to applicable law and regulation and generally applicable to 9 the conveyance of water by Metropolitan on behalf of its member agencies.” (Ex. 10 3, ¶ 5.2.) 11 In SDCWA I, the Court of Appeal stated: 19. “A water agency’s payments to its 12 members to encourage water conservation is outside the scope of 13 recoverable costs contemplated by the 14 wheeling statute,” and therefore, Metropolitan’s “water stewardship rate 15 used to fund conservation programs” is not “recoverable as ‘fair compensation’ 16 for use of the conveyance system.” (Ex. 5, SDCWA I, supra, 12 Cal.App.5th at 17 pp. 1150–51.) 18 In SDCWA I, the Court of Appeal further 20. stated that “to the extent that the price 19 Metropolitan charged the Water Authority for wheeling was based on an 20 unlawful rate, there was a breach of the amended exchange agreement providing 21 for future prices ‘equal to the charge or 22 charges set by Metropolitan's Board of Directors pursuant to applicable law and 23 regulation and generally applicable to the conveyance of water by Metropolitan 24 on behalf of its member agencies.’” (Ex. 5, SDCWA I, supra, 12 Cal.App.5th at p. 25 1154.) 26 In SDCWA I, the Court of Appeal stated 21. that “the evidence sufficiently 27 establishes a violation of the contractual price term, not just the wheeling rate, 28 6 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806304 1 and actionable injury by payment of a water stewardship rate unrelated to the 2 transportation services provided.” (Ex. 3 5, SDCWA I, supra, 12 Cal.App.5th at p. 1154.) 4 In SDCWA II, the Court of Appeal 22. stated: “In its 2010 and 2012 actions, the 5 Water Authority’s requests for mandamus were predicated on a claim 6 that Metropolitan failed to act as 7 required by law in determining ‘fair compensation’ for a wheeler’s use of an 8 owner’s water conveyance system for transporting water under both the 9 Wheeling Statutes and the parties’ exchange agreement under which 10 Metropolitan had a duty to calculate 11 water rates pursuant to applicable law and regulation.” (Ex. 8, SDCWA II, 12 supra, 2021 WL 4272331, at p. *7.) The Court of Appeal stated: “Thus, the 13 23. writ properly compels Metropolitan to 14 perform its clear and present legal obligation, pursuant to Water Code 15 sections 1810 and 1812, requiring the owner of a water conveyance facility to 16 timely determine fair compensation for use of its water conveyance services for 17 the benefit of the Water Authority, 18 which is an entity entitled to use the facilities upon the payment of fair 19 compensation.” (Ex. 8, SDCWA II, supra, 2021 WL 4272331, at p. *8.) 20 Water Code section 1811, subdivision 24. (c), defines “fair compensation” as 21 “including reasonable credit for any 22 offsetting benefits for the use of the conveyance system.” (See Ex. 9 at pp. 23 6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex. 13.) 24 In SDCWA I, the Court of Appeal stated: 25. “Metropolitan has made several 25 assertions on appeal denying an 26 enforceable contract and actionable breach but none is persuasive.” (Ex. 5, 27 SDCWA I, supra, 12 Cal.App.5th at p. 1154; see also Ex. 4 at pp. 114–130.) 28 7 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806304 1 The Court of Appeal stated: “Fees and 26. rates are ‘subject to attack’ when 2 reenacted, even if they are essentially the 3 same as previous ones.” (Ex. 5, SDCWA I, supra, 12 Cal.App.5th at p. 1142; see 4 also Ex. 9 at pp. 7–10, 12–13.) 5 Issue 4: Metropolitan’s sixth cause of action in its 2014 cross-complaint, for declaratory relief regarding fair compensation, is barred because Metropolitan has an enforceable duty under the 6 Wheeling Statutes and the Exchange Agreement to charge no more than “fair compensation,” 7 which is defined as “including reasonable credit for any offsetting benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd. (c).) 8 The Water Authority’s undisputed Metropolitan’s response and supporting 9 material facts and supporting evidence: 10 evidence: Paragraph 5.2 of the 2003 Amended and 27. Restated Exchange Agreement states that 11 “the Price shall be equal to the charge or 12 charges set by Metropolitan’s Board of Directors pursuant to applicable law and 13 regulation and generally applicable to 14 the conveyance of water by Metropolitan on behalf of its member agencies.” (Ex. 15 3, ¶ 5.2.) In SDCWA I, the Court of Appeal stated: 16 28. “A water agency’s payments to its members to encourage water 17 conservation is outside the scope of 18 recoverable costs contemplated by the wheeling statute,” and therefore, 19 Metropolitan’s “water stewardship rate used to fund conservation programs” is 20 not “recoverable as ‘fair compensation’ for use of the conveyance system.” (Ex. 21 5, SDCWA I, supra, 12 Cal.App.5th at 22 pp. 1150–51.) In SDCWA I, the Court of Appeal further 23 29. stated that “to the extent that the price Metropolitan charged the Water 24 Authority for wheeling was based on an 25 unlawful rate, there was a breach of the amended exchange agreement providing 26 for future prices ‘equal to the charge or charges set by Metropolitan's Board of 27 Directors pursuant to applicable law and regulation and generally applicable to 28 8 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806304 1 the conveyance of water by Metropolitan on behalf of its member agencies.’” (Ex. 2 5, SDCWA I, supra, 12 Cal.App.5th at p. 3 1154.) In SDCWA I, the Court of Appeal stated 30. that “the evidence sufficiently 4 establishes a violation of the contractual 5 price term, not just the wheeling rate, and actionable injury by payment of a 6 water stewardship rate unrelated to the 7 transportation services provided.” (Ex. 5, SDCWA I, supra, 12 Cal.App.5th at p. 8 1154.) In SDCWA II, the Court of Appeal 9 31. stated: “In its 2010 and 2012 actions, the 10 Water Authority’s requests for mandamus were predicated on a claim 11 that Metropolitan failed to act as required by law in determining ‘fair 12 compensation’ for a wheeler’s use of an owner’s water conveyance system for 13 transporting water under both the 14 Wheeling Statutes and the parties’ exchange agreement under which 15 Metropolitan had a duty to calculate water rates pursuant to applicable law 16 and regulation.” (Ex. 8, SDCWA II, supra, 2021 WL 4272331, at p. *7.) 17 The Court of Appeal stated: “Thus, the 32. writ properly compels Metropolitan to 18 perform its clear and present legal 19 obligation, pursuant to Water Code sections 1810 and 1812, requiring the 20 owner of a water conveyance facility to timely determine fair compensation for 21 use of its water conveyance services for 22 the benefit of the Water Authority, which is an entity entitled to use the 23 facilities upon the payment of fair compensation.” (Ex. 8, SDCWA II, 24 supra, 2021 WL 4272331, at p. *8.) Water Code section 1811, subdivision 25 33. (c), defines “fair compensation” as 26 “including reasonable credit for any offsetting benefits for the use of the 27 conveyance system.” (See Ex. 9 at pp. 6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex. 28 9 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806304 1 13.) In SDCWA I, the Court of Appeal stated: 2 34. “Metropolitan has made several 3 assertions on appeal denying an enforceable contract and actionable 4 breach but none is persuasive.” (Ex. 5, SDCWA I, supra, 12 Cal.App.5th at p. 5 1154; see also Ex. 4 at pp. 114–130.) The Court of Appeal stated: “Fees and 6 35. rates are ‘subject to attack’ when 7 reenacted, even if they are essentially the same as previous ones.” (Ex. 5, SDCWA 8 I, supra, 12 Cal.App.5th at p. 1142; see also Ex. 9 at pp. 7–10, 12–13.) 9 10 Issue 5: Metropolitan’s seventh cause of action in its 2014 cross-complaint, for declaratory relief regarding judicial estoppel, is barred because Metropolitan has an enforceable duty under the 11 Wheeling Statutes and the Exchange Agreement to charge no more than “fair compensation,” which is defined as “including reasonable credit for any offsetting benefits for the use of the 12 conveyance system.” (Wat. Code, § 1811, subd. (c).) 13 The Water Authority’s undisputed Metropolitan’s response and supporting 14 material facts and supporting evidence: evidence: 15 Paragraph 5.2 of the 2003 Amended and 36. Restated Exchange Agreement states that 16 “the Price shall be equal to the charge or charges set by Metropolitan’s Board of 17 Directors pursuant to applicable law and 18 regulation and generally applicable to the conveyance of water by Metropolitan 19 on behalf of its member agencies.” (Ex. 3, ¶ 5.2.) 20 In SDCWA I, the Court of Appeal stated: 37. “A water agency’s payments to its 21 members to encourage water 22 conservation is outside the scope of recoverable costs contemplated by the 23 wheeling statute,” and therefore, Metropolitan’s “water stewardship rate 24 used to fund conservation programs” is 25 not “recoverable as ‘fair compensation’ for use of the conveyance system.” (Ex. 26 5, SDCWA I, supra, 12 Cal.App.5th at pp. 1150–51.) 27 In SDCWA I, the Court of Appeal further 38. stated that “to the extent that the price 28 10 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806304 1 Metropolitan charged the Water Authority for wheeling was based on an 2 unlawful rate, there was a breach of the 3 amended exchange agreement providing for future prices ‘equal to the charge or 4 charges set by Metropolitan's Board of Directors pursuant to applicable law and 5 regulation and generally applicable to the conveyance of water by Metropolitan 6 on behalf of its member agencies.’” (Ex. 7 5, SDCWA I, supra, 12 Cal.App.5th at p. 1154.) 8 In SDCWA I, the Court of Appeal stated 39. that “the evidence sufficiently 9 establishes a violation of the contractual price term, not just the wheeling rate, 10 and actionable injury by payment of a 11 water stewardship rate unrelated to the transportation services provided.” (Ex. 12 5, SDCWA I, supra, 12 Cal.App.5th at p. 1154.) 13 In SDCWA II, the Court of Appeal 40. stated: “In its 2010 and 2012 actions, the 14 Water Authority’s requests for 15 mandamus were predicated on a claim that Metropolitan failed to act as 16 required by law in determining ‘fair compensation’ for a wheeler’s use of an 17 owner’s water conveyance system for 18 transporting water under both the Wheeling Statutes and the parties’ 19 exchange agreement under which Metropolitan had a duty to calculate 20 water rates pursuant to applicable law and regulation.” (Ex. 8, SDCWA II, 21 supra, 2021 WL 4272331, at p. *7.) 22 The Court of Appeal stated: “Thus, the 41. writ properly compels Metropolitan to 23 perform its clear and present legal obligation, pursuant to Water Code 24 sections 1810 and 1812, requiring the owner of a water conveyance facility to 25 timely determine fair compensation for 26 use of its water conveyance services for the benefit of the Water Authority, 27 which is an entity entitled to use the facilities upon the payment of fair 28 11 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION Lead Case No. CPF-14-514004; Consolidated with CPF-16-515282 & CPF-18-516389 1806304 1 compensation.” (Ex. 8, SDCWA II, supra, 2021 WL 4272331, at p. *8.) 2 Water Code section 1811, subdivision 42. (c), defines “fair compensation” as 3 “including reasonable credit for any 4 offsetting benefits for the use of the conveyance system.” (See Ex. 9 at pp. 5 6–7, 11–12; Ex. 11 at p. 2; Ex. 12; Ex. 13.) 6 In SDCWA I, the Court of Appeal stated: 43. “Metropolitan has made several 7 assertions on appeal denying an 8 enforceable contract and actionable breach but none is persuasive.” (Ex. 5, 9 SDCWA I, supra, 12 Cal.App.5th at p. 10 1154; see also Ex. 4 at pp. 114–130.) The Court of Appeal stated: “Fees and 44. rates are ‘subject to attack’ when 11 reenacted, even if they are essentially the 12 same as previous ones.” (Ex. 5, SDCWA I, supra, 12 Cal.App.5th at p. 1142; see 13 also Ex. 9 at pp. 7–10, 12–13.) 14 Issue 6: Metropolitan’s eighth cause of action in its 2014 cross-complaint, for declaratory relief 15 regarding offsetting benefits, is barred because Metropolitan has an enforceable duty under the Wheeling Statutes and the Exchange Agreement to charge no more than “fair compensation,” 16 which is defined as “including reasonable credit for any offsetting benefits for the use of the conveyance system.” (Wat. Code, § 1811, subd. (c).) 17 18 The Water Authority’s undisputed Metropolitan’s response and supporting material facts and supporting evidence: 19 evidence: Paragraph 5.2 of the 2003 Amended and 20 45. Restated Exchange Agreement states that 21 “the Price shall be equal to the charge or charges set by Metropolitan’s Board of 22 Directors pursuant to applicable law and regulation and generally applicable to 23 the conveyance of water by Metropolitan on behalf of its member agencies.” (Ex. 24 3, ¶ 5.2.) 25 In SDCWA I, the Court of Appeal stated: 46. “A water agency’s payments to its 26 members to encourage water conservation is outside the scope of 27 recoverable costs contemplated by the wheeling statute,” and therefore, 28 12 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SAN DIEGO COUNTY WATER AUTHORITY’S MOTION FOR SUMMARY ADJUDICATION IN THE 2014 ACTION