Exhibit,Appendix: SAN DIEGO COUNTY WATER AUTHORITY VS. METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA et al

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                                1      KEKER, VAN NEST & PETERS LLP
                            JOHN KEKER - # 49092
                     2      jkeker@keker.com
                                                                                                                 ELECTRONICALLY
                            DAN JACKSON - # 216091
                     3      djackson@keker.com                                                                      F  I  L   E  D
                                                                                                                 Superior Court of California,
                            WARREN A. BRAUNIG - # 243884                                                          County of San Francisco
                     4      wbraunig@keker.com
                            NICHOLAS S. GOLDBERG - # 273614                                                          07/16/2020
                     5      ngoldberg@keker.com                                                                  Clerk of the Court
                                                                                                                   BY: RONNIE OTERO
                            633 Battery Street                                                                                Deputy Clerk
                     6      San Francisco, CA       94111-1809
                            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
                    11      Telephone:        (858) 522-6600
                            Facsimile:        (858) 522-6566
                    12
                            Attorneys for Petitioner and Plaintiff                                  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-10-510830
                             AUTHORITY,
                    18                                                                    Consolidated with: Case No. CPF-12-512466
                                               Petitioner and Plaintiff,
                    19                                                                    APPENDIX I: COMPARISON OF THE
                                      v.                                                  PARTIES’ POSITIONS IN RESPECTIVE
                    20                                                                    PROPOSED JUDGMENTS
                             METROPOLITAN WATER DISTRICT OF
                    21       SOUTHERN CALIFORNIA; ALL                                     Date:          July 30, 2020
                             PERSONS INTERESTED IN THE                                    Time:          1:30 p.m.
                    22       VALIDITY OF THE RATES ADOPTED                                Dept.:         304
                             BY THE METROPOLITAN WATER
                    23       DISTRICT OF SOUTHERN CALIFORNIA                              Judge:         Hon. Anne-Christine Massullo
                             ON APRIL 13, 2010 TO BE EFFECTIVE
                    24       JANUARY 2011; and DOES 1-10,
                    25                         Respondents and Defendants.
                    26

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                                                                               APPENDIX I
                                                               Case Nos. CPF-10-510830 & CPF-12-512466
                           1387345
                     1              For the Court’s convenience in considering the competing proposed judgments, the Water

                     2     Authority has prepared, as Appendix I, the accompanying chart quoting each party’s respective

                     3     language for each subject raised in the proposed judgments.

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                     5     Dated:   July 16, 2020                                            KEKER, VAN NEST & PETERS LLP
                     6

                     7                                                               By:     /s/ Warren A. Braunig
                                                                                             WARREN A. BRAUNIG
                     8
                                                                                             Attorneys for Petitioner and Plaintiff SAN
                     9                                                                       DIEGO COUNTY WATER AUTHORITY
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                                                                               APPENDIX I
                                                               Case Nos. CPF-10-510830 & CPF-12-512466
                           1387345
               Subject          Water Authority Proposed Judgment                                          Metropolitan Proposed Judgment

               First            Par. No. 1 – Final judgment is ENTERED in favor of                         Par. No. 1 – On the First Cause of Action for writ of mandate
               Cause of         Petitioner and Plaintiff San Diego County Water Authority                  in the 2010 Action and 2012 Action, final judgment is
               Action           (“the Water Authority”) and against Respondent and                         ENTERED in favor of Metropolitan. San Diego’s First Cause
                                Defendant Metropolitan Water District of Southern                          of Action for writ relief is moot because Metropolitan’s rates
                                California (“Metropolitan”) on the First Cause of Action in                for 2011-2014 have expired and are no longer in effect. The
                                the 2010 and 2012 Cases, for writ of mandate, because                      Court of Appeal in SDCWA vacated the prior writ without
                                Metropolitan’s inclusion of the Water Stewardship Rate in                  instructions to this Court to issue a new writ. Instead, the Court
                                the wheeling rate and the transportation rates charged                     of Appeal remanded “the matter for a redetermination of
                                under the Exchange Agreement 1 is unlawful.            See SDCWA           damages based solely on overcharges from inclusion of the
                                v. MWD, 12 Cal. App. 5th at 1130, 1138–39, 1150–52,                        water stewardship rate.” SDCWA, 12 Cal. App. 5th at 1154. In
                                1154–55.     A peremptory writ of mandate shall issue, under               addition, San Diego is not entitled to a writ or any other relief
                                seal of this Court, commanding Metropolitan to enact only                  directing Metropolitan to determine a “reasonable credit for
                                legal wheeling and transportation rates in the future and to               any offsetting benefits” because any such claim is both outside
                                exclude the costs of conservation programs and other                       the scope of remand and has been waived by San Diego. Order
                                demand management programs, imposed in these cases as                      Re Scope, 6:13-15.
                                the Water Stewardship Rate, from Metropolitan’s wheeling
                                rate published in Section 4405 of Metropolitan’s
                                Administrative Code and from the transportation rates
                                charged under the Exchange Agreement.             See id.; see also
                                Code Civ. Proc. § 1095 (providing that, when judgment in
                                a writ of mandate action is “given for the applicant, the
                                applicant may recover the damages which the applicant has
                                sustained . . . and a peremptory mandate must also be
                                awarded without delay”).




         1
           The “Exchange Agreement” refers herein to the October 10, 2003 Amended and Restated Agreement Between the Metropolitan Water District of
         Southern California and the San Diego County Water Authority for the Exchange of Water.                        The Exchange Agreement is the source of the Water
         Authority’s breach of contract claims.
                                                                                                  3
                                                                                            APPENDIX I
                                                                            Case Nos. CPF-10-510830 & CPF-12-512466
         1387345
               Subject          Water Authority Proposed Judgment                                          Metropolitan Proposed Judgment

               Second           Par. No. 2 – Final judgment is ENTERED in favor of the                     Par. No. 2 – On the Second Cause of Action for declaratory
               Cause of         Water Authority and against Metropolitan on the Second                     relief in the 2010 Action and the 2012 Action, final judgment
               Action           Cause of Action in the 2010 and 2012 Cases, for                            is ENTERED (A) in favor of San Diego with respect to its
                                declaratory relief, because Metropolitan’s inclusion of the                challenge to Metropolitan’s inclusion of the Water
                                Water Stewardship Rate in the wheeling rate and the                        Stewardship Rate in its transportation rates and wheeling rate
                                transportation rates charged under the Exchange                            for 2011-2014; and (B) in favor of Metropolitan with respect
                                Agreement is unlawful.        See SDCWA v. MWD, 12 Cal.                    to San Diego’s challenge to Metropolitan’s inclusion of its
                                App. 5th at 1130, 1138–39, 1150–52, 1154–55.              In               State Water Project transportation costs in its transportation
                                accordance with the Court of Appeal’s holding that it is                   rates and wheeling rate. The Court declares that the
                                “improper” to allocate to the wheeling rate “‘water                        administrative record for the 2010 Action and 2012 Action (1)
                                stewardship’ charges” for the recovery of the “costs of                    did not contain substantial evidence to support allocation of
                                conservation programs and other water management                           Metropolitan’s Water Stewardship Rate to its transportation
                                programs,” the Court hereby declares that the inclusion of                 rates and wheeling rate for 2011-2014, and (2) did contain
                                the Water Stewardship Rate in Metropolitan’s wheeling                      substantial evidence supporting Metropolitan’s allocation of its
                                rate and the transportation rates charged under the                        State Water Project transportation costs to its transportation
                                Exchange Agreement is unlawful and invalid and, further,                   rates and wheeling rate.
                                that Section 4405 of Metropolitan’s Administrative Code,
                                entitled “Wheeling Service,” is unlawful and invalid
                                because it includes the Water Stewardship Rate in the rates
                                charged for wheeling service.        Id. at 1130, 1138; see also
                                id. at 1138–39, 1150–52, 1154–55.




                                                                                                  4
                                                                                            APPENDIX I
                                                                            Case Nos. CPF-10-510830 & CPF-12-512466
         1387345
               Subject          Water Authority Proposed Judgment                                          Metropolitan Proposed Judgment

               Third            Par. No. 3 – Final judgment is ENTERED in favor of the                     Par. No. 3 – On the Third Cause of Action for determination
               Cause of         Water Authority and against Metropolitan, and all other                    of invalidity in the 2010 Action and the 2012 Action, final
               Action           persons, on the Third Cause of Action in the 2010 and                      judgment is ENTERED (A) in favor of San Diego with respect
                                2012 Cases, for determination of invalidity, because                       to its challenge to Metropolitan’s inclusion of the Water
                                Metropolitan’s inclusion of the Water Stewardship Rate in                  Stewardship Rate in its transportation rates and wheeling rate
                                the wheeling rate and the transportation rates charged                     for 2011-2014; and (B) in favor of Metropolitan with respect
                                under the Exchange Agreement is unlawful.             See SDCWA            to San Diego’s challenge to Metropolitan’s inclusion of its
                                v. MWD, 12 Cal. App. 5th at 1130, 1138–39, 1150–52,                        State Water Project transportation costs in its transportation
                                1154–55.     In accordance with the Court of Appeal’s                      rates and wheeling rate.
                                holding that it is “improper” to allocate to the wheeling
                                rate “‘water stewardship’ charges” for the recovery of the
                                “costs of conservation programs and other water
                                management programs,” the Court hereby determines that
                                the inclusion of the Water Stewardship Rate in
                                Metropolitan’s wheeling rate and the transportation rates
                                charged under the Exchange Agreement is unlawful and
                                invalid and, further, that Section 4405 of Metropolitan’s
                                Administrative Code, entitled “Wheeling Service,” is
                                unlawful and invalid because it includes the Water
                                Stewardship Rate in the rates charged for wheeling service.
                                Id. at 1130, 1138; see also id. at 1138–39, 1150–52, 1154–
                                55.




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                                                                                            APPENDIX I
                                                                            Case Nos. CPF-10-510830 & CPF-12-512466
         1387345
               Subject          Water Authority Proposed Judgment                                          Metropolitan Proposed Judgment

               Fourth           Par. No. 4 – Final judgment is ENTERED in favor of the                     Par. No. 4 – On the Fourth Cause of Action for breach of
               Cause of         Water Authority and against Metropolitan on the Fourth                     contract in the 2010 Action and the 2012 Action, final
               Action           Cause of Action in the 2010 and 2012 Cases, for breach of                  judgment is ENTERED in favor of San Diego only with
                                contract, because Metropolitan breached the Exchange                       respect to its challenge to Metropolitan’s inclusion in the
                                Agreement by including the Water Stewardship Rate in the                   Exchange Agreement price of its demand management
                                transportation rates charged under the Exchange                            program costs through the Water Stewardship Rate in 2011-
                                Agreement.      SDCWA v. MWD, 12 Cal. App. 5th at 1130,                    2014. The Court awards San Diego a total of $44,373,872.29,
                                1154–55.     Metropolitan shall pay to the Water Authority                 comprised of: (A) $28,678,190.90 in damages; (B)
                                damages in the amount of $28,678,190.90 on the breach of                   prejudgment interest at the rate of 10 percent per annum
                                contract claim, plus prejudgment interest at the rate of 10                through November 18, 2015 (the date of the initial judgment),
                                percent per annum in the amount of $_________ for a total                  in the amount of $7,484,315.54; and (C) post-judgment
                                judgment of $______.        See July 25, 2018 Order Re Scope               interest at the rate of 7 percent per annum from November 19,
                                of Proceedings Following Remand at 5, 9.            All sums               2015 until February 15, 2019 (the date of Metropolitan’s
                                awarded herein shall accrue interest at the rate of 7 percent              tender of $44,373,872.29 to San Diego), in the amount of
                                per annum (simple interest) from the date of entry of this                 $8,211,365.85.
                                judgment until paid.


               Fifth            Par. No. 5 – Final judgment is ENTERED in favor of the                     Par. No. 5 – On the Fifth Cause of Action for declaratory
               Cause of         Water Authority and against Metropolitan on the Fifth                      relief regarding the RSI clause in the 2010 Action, final
               Action           Cause of Action in the 2010 Case for declaratory relief                    judgment is ENTERED (A) in favor of San Diego that the RSI
                                regarding Metropolitan’s Rate Structure Integrity (“RSI”)                  clause is invalid and unenforceable; and (B) in favor of
                                Clause.   See SDCWA v. MWD, 12 Cal. App. 5th at 1159–                      Metropolitan with respect to San Diego’s claim that it is
                                64.  The Court hereby declares “the RSI clause invalid and                 entitled to restitution and other relief. The Court declares that
                                unenforceable as an unconstitutional condition.”            Id. at         the RSI clause is invalid and unenforceable, and that San
                                1164.   Metropolitan shall not impose or enforce the RSI                   Diego is not entitled to any further relief.
                                clause in any of its existing contracts or agreements and is
                                specifically prohibited from including the RSI clause or
                                any similar provision in any future contracts or
                                agreements.


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                                                                                            APPENDIX I
                                                                            Case Nos. CPF-10-510830 & CPF-12-512466
         1387345
               Subject          Water Authority Proposed Judgment                                          Metropolitan Proposed Judgment

               Sixth            Par. No. 6 – Final judgment is ENTERED in favor of the                     Par. No. 6 – On the Sixth Cause of Action for declaratory
               Cause of         Water Authority and against Metropolitan on the Sixth                      relief regarding Metropolitan’s preferential rights calculation
               Action           Cause of Action in the 2010 Case for declaratory relief                    in the 2010 Action, final judgment is ENTERED in favor of
                                regarding Metropolitan’s preferential rights calculation.                  San Diego. The Court declares that payments made by San
                                See SDCWA v. MWD, 12 Cal. App. 5th at 1155–56.                             Diego under the Exchange Agreement must be credited in the
                                Metropolitan’s previous methodology for calculating                        calculation of preferential rights.
                                preferential rights, which was challenged in this litigation,
                                violates § 135 of the Metropolitan Water District Act.            See
                                id.  Metropolitan shall include in its calculation of
                                preferential rights the Water Authority’s payments under
                                the Exchange Agreement because such payments are not
                                payments for the “purchase of water.”          Id.


               Dismissed        Par. No. 7 – Final judgment is ENTERED in favor of                         Par. No. 8 – On San Diego’s former Fifth Cause of Action for
               Causes of        Metropolitan and against the Water Authority on (i) the                    breach of the implied covenant of good faith and fair dealing
               Action           Fifth Cause of Action in the First Amended                                 in the 2010 Action, which this Court dismissed with prejudice
                                Petition/Complaint in the 2010 Case for breach of the                      on January 4, 2012 by sustaining Metropolitan’s demurrer,
                                implied covenant of good faith and fair dealing and (ii) the               final judgment is ENTERED in favor of Metropolitan.
                                Sixth Cause of Action in the First Amended
                                Petition/Complaint in the 2010 Case for breach of fiduciary
                                duty.   This Court dismissed both of these causes of action                Par. No. 9 – On San Diego’s former Sixth Cause of Action for
                                by sustaining Metropolitan’s demurrer without leave to                     breach of fiduciary duty in the 2010 Action, which this Court
                                amend on January 4, 2012, and neither cause of action was                  dismissed with prejudice on January 4, 2012 by sustaining
                                the subject of the parties’ appeals or the Court of Appeal’s               Metropolitan’s demurrer, final judgment is ENTERED in favor
                                decision in SDCWA v. MWD.                                                  of Metropolitan.




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                                                                                            APPENDIX I
                                                                            Case Nos. CPF-10-510830 & CPF-12-512466
         1387345
               Subject           Water Authority Proposed Judgment                                         Metropolitan Proposed Judgment

               Continuing        Par. No. 8 – This Court will retain continuing jurisdiction               N/A
               Jurisdiction      over these cases.


               Final             Par. No. 9 – This is a final judgment in the 2010 and 2012                Par. No. 11 – This is the final judgment in the 2010 Action
               Judgment          Cases.                                                                    and 2012 Action, and with respect to the rate challenges “if no
                                                                                                           appeal is taken, or if taken and the judgment is affirmed, shall
                                                                                                           … be forever binding and conclusive, as to all matters [herein]
                                                                                                           adjudicated or which at that time could have been adjudicated
                                                                                                           against [Metropolitan], and against all other persons, and the
                                                                                                           judgment shall permanently enjoin the institution by any
                                                                                                           person of any action or proceeding raising any issue as to
                                                                                                           which the judgment is binding and conclusive.” Code Civ.
                                                                                                           Proc. § 870(a).


               Prop. 26          N/A                                                                       Par. No. 7 – On San Diego’s claims of a violation of
               (2010)                                                                                      Proposition 26 in the First, Second, and Third Causes of
                                                                                                           Action in the 2010 Action, which this Court dismissed with
                                                                                                           prejudice on March 29, 2013 by granting Metropolitan’s
                                                                                                           motion to strike, final judgment is ENTERED in favor of
                                                                                                           Metropolitan.


               Dry Year          N/A                                                                       Par. No. 10 – On San Diego’s “dry year peaking” claims in
               Peaking                                                                                     the First, Second, and Third Causes of Action in the 2012
                                                                                                           Action, on which this Court ruled in Metropolitan’s favor in
                                                                                                           its April 24, 2014 Statement of Decision following the Phase I
                                                                                                           trial, final judgment is ENTERED in favor of Metropolitan.

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                                                                                            APPENDIX I
                                                                            Case Nos. CPF-10-510830 & CPF-12-512466
         1387345