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1 MANATT, PHELPS & PHILLIPS, LLP Exempt from filing fee pursuant to
Phillip R. Kaplan (SBN 76949) Government Code § 6103
2 Barry W. Lee (SBN 88685)
One Embarcadero Center, 30th Floor ELECTRONICALLY
3 San Francisco, CA 94111
Telephone: (415) 291-7450
F I L E D
Superior Court of California,
4 Facsimile: (415) 291-7474 County of San Francisco
Email: pkaplan@manatt.com 07/16/2020
5 Email: bwlee@manatt.com Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk
6 MORGAN, LEWIS & BOCKIUS LLP
Colin C. West (SBN 184095)
7 One Market, Spear Street Tower
San Francisco, CA 94105-1596
8 Telephone: (415) 422-1000
Facsimile: (415) 422-1101
9 Email: colin.west@morganlewis.com
10 THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA
Marcia Scully (SBN 80648)
11 Heather C. Beatty (SBN 161907)
Patricia J. Quilizapa (SBN 233745)
12 700 North Alameda Street
Los Angeles, CA 90012-2944
13 Telephone: (213) 217-6834
Facsimile: (213) 217-6890
14 Email: hbeatty@mwdh2o.com
15 Attorneys for Respondent and Defendant
THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA
16
SUPERIOR COURT OF THE STATE OF CALIFORNIA
17
FOR THE COUNTY OF SAN FRANCISCO
18
SAN DIEGO COUNTY WATER Lead Case No. CPF-10-510830
19 AUTHORITY, Consolidated with Case No. CPF-12-512466
20 Petitioner and Plaintiff, Assigned for all purposes to the
Hon. Anne-Christine Massullo, Dept. 304
21 vs.
THE METROPOLITAN WATER
22 THE METROPOLITAN WATER DISTRICT OF SOUTHERN
DISTRICT OF SOUTHERN CALIFORNIA, CALIFORNIA’S RESPONSE TO SAN
23 ALL PERSONS INTERESTED IN THE DIEGO COUNTY WATER
VALIDITY OF THE RATES ADOPTED AUTHORITY’S OPENING BRIEF RE
24 BY THE METROPOLITAN WATER FORM OF JUDGMENT
DISTRICT OF SOUTHERN CALIFORNIA
25 ON APRIL 13, 2010 TO BE EFFECTIVE Date: July 30, 2020
JANUARY 1, 2011; AND DOES 1-10, Time: 1:30 p.m.
26
Respondents and Defendants.
27
28
M ANATT , P HELPS &
P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT
ATTO RNEY S AT LAW
LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION .............................................................................................................. 1
4 II. METROPOLITAN’S PROPOSED JUDGMENT SHOULD BE ADOPTED ................... 2
A. Metropolitan applies the correct legal standard for a final judgment ..................... 2
5
B. The judgment should include Metropolitan’s procedural history section ............... 4
6
C. First Cause of Action—Writ of Mandate (S.D. Jgmt., Page 1:14-2:3, Par.
7 1) ............................................................................................................................. 6
D. Second and Third Causes of Action—Declaratory Relief and
8
Determination of Invalidity (S.D. Jgmt., Page 2:4-28, Par. 2-3) ............................ 9
9 E. Fourth Cause of Action – Breach of Contract (S.D. Jgmt., Page 3:1-10, Par.
4) ........................................................................................................................... 12
10
1. Prejudgment interest stopped accruing on November 18, 2015 ............... 12
11
2. Post-judgment interest stopped accruing on February 15, 2019 ............... 14
12 F. Fifth Cause of Action—RSI Clause (S.D. Jgmt., Page 3:11-17, Par. 5) ............... 14
13 G. Sixth Cause of Action—Declaratory Relief re Preferential Rights (S.D.
Jgmt., Page 3:18-25, Par. 6) .................................................................................. 15
14
H. San Diego’s Former Fifth and Sixth Causes of Action—Breach of the
15 Implied Covenant of Good Faith and Fair Dealing and Breach of Fiduciary
Duty. (S.D. Jgmt., Pages 3:26-4:4, Par. 7) ............................................................ 15
16
I. Continuing Jurisdiction (S.D. Jgmt., Page 4:5, Par. 8) ......................................... 15
17 J. Final Judgment (S.D. Jgmt., Page 4:6, Par. 9) ...................................................... 15
18 III. CONCLUSION ................................................................................................................. 15
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METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT
CASE NO. CPF-10-510830, CPF-12-512466
1 TABLE OF AUTHORITIES
2 Page
3 CASES
4 American Enterprise, Inc. v. Van Winkle,
39 Cal. 2d 210 (1952) ......................................................................................................... 2, 10
5
Amerson v. Christman,
6 261 Cal. App. 2d 811 (1968)............................................................................................... 2, 10
7 Ballard v. Anderson,
4 Cal. 3d 873 (1971) ............................................................................................................. 8, 9
8 Baral v. Schnitt,
9 1 Cal. 5th 376 (2016) ................................................................................................................ 3
Berris & Seaton v Meyers,
10 163 Cal. App. 3d Supp. 54, 60 (1984) ...................................................................................... 2
11 Caffroy v. Fremlin,
198 Cal. App. 2d 176 (1961)............................................................................................... 2, 10
12
Cal. High-Speed Rail Auth. v. Super. Court,
13 228 Cal. App. 4th 676 (2014).................................................................................................... 8
14 Chodos v. Borman,
239 Cal. App. 4th 707 (2015)............................................................................................ 12, 13
15 Crowley v. Katleman,
16 8 Cal. 4th 666 (1994) .......................................................................................................... 3, 11
Dunlop v. Hersum Lbr. Co.,
17 126 Cal. App. 2d 815 (1954)............................................................................................... 2, 10
18 Hamilton v. Asbestos Corp.,
22 Cal. 4th 1127 (2000) ............................................................................................................ 3
19
In re Marriage of Green,
20 143 Cal. App. 4th 1312 (2006)................................................................................................ 14
21 K.G. v. Meredeth,
204 Cal. App. 4th 164 (2012).................................................................................................... 8
22 Landsberg v. Scrabble Crossword Game Players, Inc.,
23 802 F.2d 1193 (9th Cir. 1986)........................................................................................... 12, 13
Lazar v. Super. Court,
24 16 Cal. 2d 617 (1940) ............................................................................................................... 4
25 Le Francois v. Goel,
35 Cal. 4th 1094 (2005) ............................................................................................................ 6
26
Lennane v. Franchise Tax Bd.,
27 51 Cal. App. 4th 1180 (1996).................................................................................................... 6
28
M ANATT , P HELPS & -ii-
P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT
ATTO RNEY S AT LAW
LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466
1 Lynch v. Cal. Coastal Comm’n,
3 Cal. 5th 470 (2017) ................................................................................................................ 7
2
Merigan v. Bauer,
3 206 Cal. App. 2d 616 (1962)............................................................................................... 2, 10
4 Owens v. Cty. of Los Angeles,
220 Cal. App. 4th 107 (2013).................................................................................................. 14
5
Paterno v. Super. Court,
6 123 Cal. App. 4th 548 (2004).................................................................................................. 14
Reitano v. Yankwich,
7 38 Cal. 2d 1 (1951) ................................................................................................................. 14
8 San Diego Cty. Water Auth. v. Metro. Water Dist. of S. Cal.,
12 Cal. App. 5th 1124 (2017).................................................................................... 4, 5, 10, 15
9
Slater v. Blackwood,
10 15 Cal. 3d 791 (1975) ............................................................................................................... 3
11 Stockton Theatres, Inc. v. Palermo,
55 Cal. 2d 439 (1961) ....................................................................................................... 12, 13
12
STATUTES
13 Code Civ. Proc. § 170.6 .......................................................................................................... 13, 14
14 Code Civ. Proc. § 577 ............................................................................................................. 1, 2, 6
Code Civ. Proc. § 870 ................................................................................................................... 15
15
Code Civ. Proc. § 1060 ............................................................................................................. 2, 10
16
OTHER AUTHORITIES
17 7 Witkin, Cal. Proc. 5th Jgmt. § 29 (2020) ..................................................................................... 2
18 Cal. Judges Benchbook Civ. Proc. Trial § 15.2 .............................................................................. 2
19
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22
23
24
25
26
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M ANATT , P HELPS & -iii-
P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT
ATTO RNEY S AT LAW
LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466
1 I. INTRODUCTION
2 The parties’ cross-motions boil down to three main issues: (1) whether the judgment
3 should, as Metropolitan contends, finally determine the rights of both parties and resolve all
4 claims at issue; (2) whether a writ should issue even though the Court of Appeal vacated the first
5 one and a new writ would serve no purpose; and (3) whether prejudgment interest stopped
6 running on the date of the first judgment. All three issues cut squarely in favor of adopting
7 Metropolitan’s proposed judgment.
8 California law answers the first issue: “A judgment is a final determination of the rights of
9 the parties in an action or proceeding.” Code Civ. Proc. § 577. If San Diego has its way, the
10 judgment will be a broad, final declaration of San Diego’s version of its “rights,” but will be
11 silent for the most part on Metropolitan’s rights, and on the alleged rights that San Diego
12 unsuccessfully asserted in the 2010 and 2012 Actions. To be complete, the judgment should
13 resolve both parties’ rights, including their rights regarding the State Water Project (“SWP”) costs
14 that the Court of Appeal determined Metropolitan properly included in its transportation rates and
15 wheeling rate. The judgment should also dispose of the other affirmative claims San Diego
16 asserted, including its post-remand Rate Structure Integrity (“RSI”) clause restitution claim, and
17 the additional claims identified in Section III.E of Metropolitan’s opening brief.
18 The Court of Appeal decision answers the second issue; it reversed the trial court’s
19 judgment, provided narrow remand instructions, and vacated the writ without instructions to issue
20 a new one. This Court repeated those instructions in its July 25, 2018 Scope of Remand Order.
21 (Order Re Scope, 4:14-18.) San Diego is not entitled to a new writ.
22 On the third issue, San Diego argues that when a first judgment is fully reversed,
23 prejudgment interest runs until the trial court enters a new judgment. But that is not what
24 happened here. San Diego has repeatedly argued—and continues to argue—that the Court
25 awarded San Diego $28,678,190.90, plus 10% prejudgment interest in the November 18, 2015
26 judgment, and that the award was affirmed on appeal. Metropolitan acknowledges that this Court
27 agreed with San Diego’s argument in its Scope of Remand Order. The cases San Diego cites are
28 in accord—when a damages award is adjusted downward, and affirmed as reduced, which is what
M ANATT , P HELPS & -1-
P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT
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LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466
1 happened here, prejudgment interest stops running on the date of the first judgment even though
2 an appeal is filed, and even if the appellate decision states that the judgment is “reversed.”
3 As demonstrated below and in Metropolitan’s opening brief, Metropolitan’s proposed
4 form of judgment should be entered.
5 II. METROPOLITAN’S PROPOSED JUDGMENT SHOULD BE ADOPTED
6 A. Metropolitan applies the correct legal standard for a final judgment.
7 Metropolitan’s proposed judgment finally determines the rights of both parties, and
8 disposes of each claim at issue and adjudicated in the 2010 and 2012 Actions; that is what the law
9 requires. Code of Civil Procedure Section 577 describes a judgment in plain and unambiguous
10 terms: “A judgment is a final determination of the rights of the parties in an action.” The common
11 law agrees that, although there is no prescribed form, the sufficiency of a judgment depends on
12 whether it shows that the issues have been adjudicated. 7 Witkin, Cal. Proc. 5th Jgmt. § 29
13 (2020); Cal. Judges Benchbook Civ. Proc. Trial § 15.2, (citing Berris & Seaton v Meyers, 163
14 Cal. App. 3d Supp. 54, 60 (1984)). Section 577 does not provide that a judgment determines the
15 rights of a plaintiff only—it plainly requires determination of the rights of all “parties.”
16 The approach required under Section 577 is particularly salient in a declaratory relief
17 action, like these cases. As the Court of Appeal explains:
18 In actions for declaratory relief, the court should attempt to do
complete equity, resolving all questions actually involved in the case
19 as between all of the respective parties. (Dunlop v. Hersum Lbr.
Co., 126 Cal.App.2d 815, 820 [273 P.2d 22].) “In an action for
20 declaratory relief, the proper function of the court is to make a full
and complete declaration, disposing of all questions of rights, status
21 or other legal relations encountered in construing the instrument
before it.” (American Enterprise, Inc. v. Van Winkle, 39 Cal.2d 210,
22 219 [246 P.2d 935]; see Code Civ. Proc., § 1060.) It is the duty of
the court hearing the action for declaratory relief to make a complete
23 determination and disposition of the controversy. (Merigan v.
Bauer, 206 Cal.App.2d 616, 621 [23 Cal.Rptr. 872]; Caffroy v.
24 Fremlin, 198 Cal.App.2d 176, 184 [17 Cal.Rptr. 668].)
25 Amerson v. Christman, 261 Cal. App. 2d 811, 822 (1968). San Diego’s proposed judgment is
26 deficient as a matter of law because it fails to dispose of all rights between the parties.
27 San Diego has a different view. San Diego attempts to shoehorn the law of res judicata
28 into the law of judgment, borrowing heavily from the “primary right” theory. (S.D. Br. at 14:24-
M ANATT , P HELPS & -2-
P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT
ATTO RNEY S AT LAW
LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466
1 16:12.) Under that theory, “the invasion of one primary right gives rise to a single cause of
2 action” for res judicata purposes. Slater v. Blackwood, 15 Cal. 3d 791, 795 (1975). According to
3 San Diego, primary rights are indivisible, and therefore, even if Metropolitan defeated all of San
4 Diego’s claims but one, San Diego would be entitled to a judgment that reflects a near-
5 unqualified win for San Diego and that does not acknowledge the resolution of other claims. But
6 that’s not what indivisibility means. Indivisibility means that when a plaintiff alleges a cause of
7 action in a lawsuit, the plaintiff cannot divide its claims into separate suits. A plaintiff gets one
8 lawsuit for each “cause of action”—i.e., for each violation of a primary right. See Crowley v.
9 Katleman, 8 Cal. 4th 666, 681 (1994). San Diego is wrong on the law.
10 Its approach is also unprecedented. San Diego cites no law to support its application to the
11 law of judgment. In contrast, Metropolitan’s approach is rooted in statute and common law.
12 Moreover, the primary right theory has a narrow application that does not include
13 judgments. See Crowley, 8 Cal. 4th at 682. (“The primary right theory has a fairly narrow field of
14 application. It is invoked most often when a plaintiff attempts to divide a primary right and
15 enforce it in two suits.”). On the limited occasions the California Supreme Court has considered a
16 request to extend the primary right theory beyond res judicata, it has declined to do so. See Baral
17 v. Schnitt, 1 Cal. 5th 376, 394-95 (2016) (holding that the term “cause of action” in anti-SLAPP
18 statute does not mean the same thing as in a primary right context); Hamilton v. Asbestos Corp.,
19 22 Cal. 4th 1127, 1146 (2000) (primary right theory is narrowly applied and not to resolve a
20 statute of limitations question); Crowley, 8 Cal. 4th at 682-83 (noting the narrow application of
21 the theory and declining to apply it to determine whether the probable cause element of a
22 malicious prosecution suit was satisfied). San Diego does not explain why it believes this Court
23 could adopt a new application of the primary right theory.
24 Nor does San Diego explain how the primary right theory should be extended to the law of
25 judgment. On the one hand, San Diego correctly points out that, under the primary right theory,
26 the violation of one primary right gives rise to only one cause of action regardless of the legal
27 theory advanced or the remedy sought. On the other hand, San Diego’s proposed judgment
28 includes separate treatment for each of its first three “causes of action,” which by San Diego’s
M ANATT , P HELPS & -3-
P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT
ATTO RNEY S AT LAW
LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466
1 own admission are actually separate claims under a single cause of action because they seek to
2 redress violation of a single primary right. If San Diego were correct, the Court would not need to
3 separately address any of the remedies San Diego seeks or the separate counts San Diego pleaded
4 because they are brought under the same primary right. But that result would be absurd. Of course
5 the Court should separately address each of San Diego’s claims. It should also address the claims
6 that San Diego improperly seeks to omit from the judgment.
7 B. The judgment should include Metropolitan’s procedural history section.
8 Metropolitan’s proposed judgment identifies each claim at issue and the history that bears
9 on those claims. San Diego argues that the judgment should forgo procedural history altogether.
10 (S.D. Br. at 12:17-25.) Yet San Diego devotes almost 7 pages and 8 footnotes of its opening brief
11 to detailing the procedural history that it thinks this Court needs in order to decide which form of
12 judgment to enter. (Id. at 6:20-12:9.) As detailed in Metropolitan’s opening brief, procedural
13 history is instrumental to understanding the rights and claims at issue. Procedural history should
14 be included in the judgment so that, like other writings, it can be reliably construed based on its
15 four corners, thereby sparing the parties and the court from having to parse through a decade-long
16 record to determine what was adjudicated. See Lazar v. Super. Court, 16 Cal. 2d 617, 622 (1940).
17 This clarity is particularly important given San Diego’s other pending cases with claims against
18 Metropolitan that overlap those resolved in the 2010 and 2012 Actions.
19 San Diego also includes a brief, incomplete procedural history section in its proposed
20 judgment. (S.D. Jgmt. at 1:1-12.) San Diego’s proposal is misleading because, among other
21 reasons, it fails to state that the Court of Appeal vacated the writ and judgment, and remanded “to
22 the trial court for recalculation of damages [based solely on overcharges from inclusion of WSR],
23 entry of declaratory relief on the Rate Structure Integrity clause, redetermination of the prevailing
24 party, and other proceedings consistent with the views expressed in [its] opinion.” San Diego Cty.
25 Water Auth. v. Metro. Water Dist. of S. Cal., 12 Cal. App. 5th 1124, 1166 (2017) (“SDCWA”).
26 San Diego also argues that Metropolitan’s procedural history section is self-serving. San
27 Diego briefly asserted this same argument during the meet-and-confer process. Metropolitan
28 invited San Diego to identify the procedural history in Metropolitan’s proposed judgment that it
M ANATT , P HELPS & -4-
P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT
ATTO RNEY S AT LAW
LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466
1 believed was self-serving. San Diego declined. San Diego’s brief is San Diego’s first attempt to
2 inform Metropolitan of the specific components it claims are self-serving. It identifies only two.
3 First, San Diego notes that Metropolitan’s proposed judgment does not detail every minor
4 aspect of the Court’s ruling on Metropolitan’s July 2, 2012 motion to strike. (S.D. Br. at 12:26-
5 13:11.) According to San Diego, Metropolitan should have also noted, among other things, that
6 the Court overruled a demurrer based on the statute of limitations. That misses the point. An order
7 overruling a demurrer does not resolve any claim. Moreover, a statute of limitations defense is not
8 an affirmative claim. As detailed above and in Metropolitan’s opening brief, Metropolitan’s
9 proposed judgment disposes of each claim, finally determines each party’s rights, and includes
10 the information needed to understand the disposition. The motion to strike is important for the
11 very reason flagged in San Diego’s brief: although the Court struck allegations, it did not “chop
12 up” the complaint or require a new amended pleading. (Id. at 13:6-7.) Without the order on
13 Metropolitan’s motion to strike, the operative pleadings are not an accurate or complete reflection
14 of the scope of San Diego’s claims. The Court’s ruling on the statute of limitations—also
15 resolved in the Court of Appeal’s published decision, SDCWA, 12 Cal. App. 5th at 1141-43—
16 carries no similar significance.
17 Second, San Diego argues that Metropolitan tries to cabin the judgment to the
18 administrative record for the years 2011-2014. But where a claim was resolved based on the
19 insufficiency of the record in those years, the inclusion of this fact is essential. This is—
20 crucially—the case with San Diego’s WSR claim, on which San Diego prevailed only due to lack
21 of substantial evidence in the record to support the allocation of the rate to transportation. See
22 SDCWA, 12 Cal. App. 5th at 1150-51 (finding that there was not substantial evidence to support
23 Metropolitan’s inclusion of the WSR in its wheeling rate), 1151 (finding that Metropolitan’s
24 inclusion of the WSR in its transportation rates violated the common law “for the same
25 reasons”). 1
26 1
As so-called further “evidence” that Metropolitan’s form of judgment is self-serving, San Diego
submitted a 12-page alternative preamble that, by its own admission, should not be included in
27 the judgment. (S.D. Br. at 14:16-21.) San Diego’s apparent purpose in filing the preamble, is to
demonstrate for the Court the “folly” of setting forth procedural history by including every bit of
28 minutia it could muster. San Diego wastes the Court’s time and misses the point. The judgment
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1 San Diego also ignores that Metropolitan’s proposed judgement includes determinations
2 against Metropolitan. (See, e.g., Met. Jgmt. at 5:4-6 (stating Metropolitan is not entitled to deduct
3 from San Diego’s damages the amount it could have lawfully charged for demand management
4 costs in supply rates).) Metropolitan was not “cherry picking.” Rather than detailing every aspect
5 of the 10-year record in these cases, Metropolitan’s proposed judgment endeavors to include the
6 procedural history that bears on each claim regardless of which party prevailed.
7 Finally, San Diego argues that Metropolitan conflates “claims” with “causes of action.”
8 (S.D. Br. at 13:12-14:11.) San Diego neither defines these terms nor explains how they bear on
9 the procedural history section. San Diego appears to make this “claim”/“cause of action”
10 distinction because it thinks the Court is bound by its October 30, 2015 Order on Post Trial
11 Issues, Form of Judgment and Writ (“First Form of Judgment Order”), even though the first
12 judgment was vacated. That order limited the first judgment to “causes of action”—not as defined
13 by primary right theory, but as pleaded by San Diego—with respect to certain claims. 2 (See S.D.
14 Br. at 13:12-22; First Form of Judgment Order at 3.) Regardless, this Court is not bound by the
15 First Form of Judgment Order. Cf. Le Francois v. Goel, 35 Cal. 4th 1094, 1104-05 (2005)
16 (holding trial court has inherent authority to revisit its own prior rulings); Lennane v. Franchise
17 Tax Bd., 51 Cal. App. 4th 1180, 1186 (1996) (holding trial court decisions are not “law of the
18 case”). San Diego cites no authority for their contrary view that the Court is so bound, nor does
19 any appear from research. Further, that order expressly favors a form of judgment consistent with
20 Section 577, and makes no mention of primary right theory. First Form of Judgment Order at 3.
21 C. First Cause of Action—Writ of Mandate (S.D. Jgmt., Page 1:14-2:3, Par. 1)
22 San Diego argues that it is entitled to judgment in its favor on its first cause of action and
23 to a writ directing Metropolitan to enact only legal wheeling and transportation rates in the future.
24
should completely dispose of the claims at issue and finally determine the parties’ rights—no
25 more and no less. And, to the extent San Diego believes refinements are needed to strike the right
balance, it could and should have raised them in the meet-and-confer process.
26 2
The First Form of Judgment Order excluded “Proposition 26 (2010 complaint), Proposition 13,
27 Government Code Section 66013, the Metropolitan Water District Act, and ‘dry year peaking’
(2012 complaint)” from the judgment as separate paragraphs. (See First Form of Judgment Order
28 at 3.) Only the Proposition 26 and dry year peaking claims are at issue here.
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1 (S.D. Br. at 23:3-24:13.) San Diego asserts that it is so entitled because the Court of Appeal
2 determined that Metropolitan’s inclusion of the WSR in its transportation rates and wheeling rate
3 was unlawful. But that portion of the Court of Appeal’s decision is already accounted for in both
4 parties’ proposed judgments under the second through fourth causes of action, which provide
5 adequate remedies at law to San Diego without issuance of a new writ. And the Court of Appeal
6 did not hold, as San Diego incorrectly suggests, that San Diego is entitled to a new writ. Instead,
7 the Court of Appeal vacated the writ without instructions to issue a new one.
8 Moreover, there would be no purpose to a new writ. Of its rate challenges, San Diego
9 succeeded only on its WSR claim, based only on the sufficiency of the administrative record in
10 2011-2014. That has no bearing on the sufficiency of the different administrative records in later
11 years. And the 2011-2014 rates are now expired.
12 For the reasons set forth in Metropolitan’s opening brief, no writ should issue.
13 San Diego’s only other argument in support of writ relief is that its claim is not moot.
14 (S.D. Br. at 24:15-25:22.) According to San Diego, Metropolitan waived mootness because the
15 challenged rates expired during the litigation. (Id. at 24:17-23.) San Diego cites no authority for
16 the proposition that Metropolitan waived mootness. San Diego’s argument should be rejected on
17 that basis alone.
18 San Diego’s arguments also fall short of the standard for demonstrating waiver. Waiver is
19 the intentional relinquishment of a known right. Lynch v. Cal. Coastal Comm’n, 3 Cal. 5th 470,
20 475 (2017). The facts and circumstances of the writ San Diego now seeks were unknown to the
21 parties earlier in the litigation, and thus defenses to the writ relief San Diego now seeks could not
22 have been waived. San Diego’s requested writ is based on new facts, including: (1) San Diego
23 seeks a writ limited to the WSR and thus narrower than the first writ; (2) Metropolitan prevailed
24 on appeal, and the Court of Appeal vacated the original writ without instruction to issue a new
25 one; and (3) Metropolitan has not included the WSR in the Exchange Agreement price since
26 2018, or at all in its 2021-2022 rates, as acknowledged by San Diego in its February 28, 2020
27 letter to the Court. (Lee Decl. in Support of Met. Jgmt., Ex. E.) Metropolitan could not have
28 waived the right to challenge San Diego’s request for a writ on these facts. And, even if San
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1 Diego’s waiver arguments were correct, Metropolitan’s purported waiver does not provide a basis
2 for this Court to exercise its discretion to enter a writ that serves no practical purpose. See Cal.
3 High-Speed Rail Auth. v. Super. Court, 228 Cal. App. 4th 676, 707 (2014) (“A writ is not
4 available to enforce abstract rights,” and “courts will not issue a useless or unenforceable writ”).
5 San Diego also argues that writ relief is not moot where it concerns an important issue of
6 public interest that is likely to recur. (S.D. Br. at 25:6-13.) San Diego cites two cases for the rule:
7 K.G. v. Meredeth, 204 Cal. App. 4th 164 (2012) and Ballard v. Anderson, 4 Cal. 3d 873 (1971).
8 (S.D. Br. at 25:6-13.) The doctrine in those cases—capable of repetition, yet evading review—
9 does not apply here. Those cases involve challenges to a conservatorship entered without an
10 incapacity determination (K.G.), and to a hospital’s refusal to consider a physician’s application
11 to perform an abortion without parental consent (Ballard). The doctrine applied because the
12 duration of the condition to be redressed in each case—a one-year conservatorship in K.G. and a
13 20-week abortion eligibility window in Ballard—made trial and appeal impossible before the
14 case became moot. See Ballard, 4 Cal. 3d at 876-77; K.G., 204 Cal. App. 4th at 175. That did not
15 happen in this case. San Diego had its trial and an appeal.
16 The doctrine also does not apply because Metropolitan does not attempt to evade review.
17 Review occurred. And Metropolitan’s form of judgment acknowledges that San Diego is entitled
18 to declaratory relief, a determination of invalidity, and contract damages. As Metropolitan argues
19 in its opening brief, San Diego has received an adequate legal remedy through its breach of
20 contract claim, providing WSR damages to redress the same injury at issue in its mandamus
21 claim. No such remedies existed in either K.G. or Ballard, where respondents argued that the
22 lawsuits should be dismissed in their entirety.
23 San Diego’s cases are also inapposite. In K.G., the Court of Appeal remanded for the trial
24 court to determine whether mandamus should be granted based on whether the respondent had
25 taken or would take the action necessary to comply with the law. K.G., 204 Cal. App. 4th at 185-
26 86. K.G. thus supports Metropolitan’s position that mandamus is not proper on remand where the
27 respondent has already complied—in K.G. by conducting incapacity determinations, and here by
28 no longer including the WSR in its transportation and wheeling rates.
M ANATT , P HELPS & -8-
P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT
ATTO RNEY S AT LAW
LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466
1 Ballard is also inapposite. That case involves a physician (Dr. Ballard) and his minor
2 patient who medically qualified for an abortion even though her parents would not consent. The
3 facility refused to consider Dr. Ballard’s application to perform the procedure for the sole reason
4 that the patient had not obtained parental consent. Ballard, 4 Cal. 3d at 876-77. Dr. Ballard was
5 entitled to a writ because he had no other remedy—without one, the hospital would refuse to
6 consider all applications to perform abortions on competent patients in the absence of parental
7 consent. Here, San Diego has received an adequate remedy at law via contract damages, and the
8 conduct targeted by the proposed writ has already ceased because the 2011-2014 rates are expired
9 (and, although a different record would be at issue, Metropolitan is not charging the WSR).
10 Even if San Diego were entitled to a writ—which is not the case—it would not be entitled
11 to the specific writ it seeks. San Diego improperly attempts to expand the scope of this Court’s
12 and the Court of Appeal’s decisions regarding the WSR. San Diego asks the Court to issue a writ
13 requiring Metropolitan “to exclude the costs of conservation programs and other demand
14 management programs.” (S.D. Jgmt. at 1:21-22.) But not all of Metropolitan’s present and future
15 conservation and other demand management programs were at issue in the 2010 and 2012 rate
16 challenges, which were limited to Metropolitan’s inclusion of the WSR and SWP transportation
17 costs in its transportation rates and wheeling rate, and only for the years 2011-2014. Including
18 this additional language in the judgment would, without any basis, prohibit Metropolitan from
19 including lawful costs in its future rates without any adjudication, and particularly without the
20 critical adjudication of the sufficiency of the record in later years. San Diego’s request for a new
21 writ should be denied.
22 D. Second and Third Causes of Action—Declaratory Relief and Determination
of Invalidity (S.D. Jgmt., Page 2:4-28, Par. 2-3)
23
24 San Diego proposes near-identical language in the second and third paragraphs of its
25 proposed judgment. These paragraphs seek a “declaration” (Paragraph 2) and a “determination”
26 (Paragraph 3) that “the inclusion of the [WSR] in Metropolitan’s wheeling rate and the
27 transportation rates charged under the Exchange Agreement is unlawful and invalid and, further,
28 that Section 4405 of Metropolitan’s Admin
Preview
1 MANATT, PHELPS & PHILLIPS, LLP Exempt from filing fee pursuant to Phillip R. Kaplan (SBN 76949) Government Code § 6103 2 Barry W. Lee (SBN 88685) One Embarcadero Center, 30th Floor ELECTRONICALLY 3 San Francisco, CA 94111 Telephone: (415) 291-7450 F I L E D Superior Court of California, 4 Facsimile: (415) 291-7474 County of San Francisco Email: pkaplan@manatt.com 07/16/2020 5 Email: bwlee@manatt.com Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk 6 MORGAN, LEWIS & BOCKIUS LLP Colin C. West (SBN 184095) 7 One Market, Spear Street Tower San Francisco, CA 94105-1596 8 Telephone: (415) 422-1000 Facsimile: (415) 422-1101 9 Email: colin.west@morganlewis.com 10 THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA Marcia Scully (SBN 80648) 11 Heather C. Beatty (SBN 161907) Patricia J. Quilizapa (SBN 233745) 12 700 North Alameda Street Los Angeles, CA 90012-2944 13 Telephone: (213) 217-6834 Facsimile: (213) 217-6890 14 Email: hbeatty@mwdh2o.com 15 Attorneys for Respondent and Defendant THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA 17 FOR THE COUNTY OF SAN FRANCISCO 18 SAN DIEGO COUNTY WATER Lead Case No. CPF-10-510830 19 AUTHORITY, Consolidated with Case No. CPF-12-512466 20 Petitioner and Plaintiff, Assigned for all purposes to the Hon. Anne-Christine Massullo, Dept. 304 21 vs. THE METROPOLITAN WATER 22 THE METROPOLITAN WATER DISTRICT OF SOUTHERN DISTRICT OF SOUTHERN CALIFORNIA, CALIFORNIA’S RESPONSE TO SAN 23 ALL PERSONS INTERESTED IN THE DIEGO COUNTY WATER VALIDITY OF THE RATES ADOPTED AUTHORITY’S OPENING BRIEF RE 24 BY THE METROPOLITAN WATER FORM OF JUDGMENT DISTRICT OF SOUTHERN CALIFORNIA 25 ON APRIL 13, 2010 TO BE EFFECTIVE Date: July 30, 2020 JANUARY 1, 2011; AND DOES 1-10, Time: 1:30 p.m. 26 Respondents and Defendants. 27 28 M ANATT , P HELPS & P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT ATTO RNEY S AT LAW LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION .............................................................................................................. 1 4 II. METROPOLITAN’S PROPOSED JUDGMENT SHOULD BE ADOPTED ................... 2 A. Metropolitan applies the correct legal standard for a final judgment ..................... 2 5 B. The judgment should include Metropolitan’s procedural history section ............... 4 6 C. First Cause of Action—Writ of Mandate (S.D. Jgmt., Page 1:14-2:3, Par. 7 1) ............................................................................................................................. 6 D. Second and Third Causes of Action—Declaratory Relief and 8 Determination of Invalidity (S.D. Jgmt., Page 2:4-28, Par. 2-3) ............................ 9 9 E. Fourth Cause of Action – Breach of Contract (S.D. Jgmt., Page 3:1-10, Par. 4) ........................................................................................................................... 12 10 1. Prejudgment interest stopped accruing on November 18, 2015 ............... 12 11 2. Post-judgment interest stopped accruing on February 15, 2019 ............... 14 12 F. Fifth Cause of Action—RSI Clause (S.D. Jgmt., Page 3:11-17, Par. 5) ............... 14 13 G. Sixth Cause of Action—Declaratory Relief re Preferential Rights (S.D. Jgmt., Page 3:18-25, Par. 6) .................................................................................. 15 14 H. San Diego’s Former Fifth and Sixth Causes of Action—Breach of the 15 Implied Covenant of Good Faith and Fair Dealing and Breach of Fiduciary Duty. (S.D. Jgmt., Pages 3:26-4:4, Par. 7) ............................................................ 15 16 I. Continuing Jurisdiction (S.D. Jgmt., Page 4:5, Par. 8) ......................................... 15 17 J. Final Judgment (S.D. Jgmt., Page 4:6, Par. 9) ...................................................... 15 18 III. CONCLUSION ................................................................................................................. 15 19 20 21 22 23 24 25 26 27 28 -i- METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT CASE NO. CPF-10-510830, CPF-12-512466 1 TABLE OF AUTHORITIES 2 Page 3 CASES 4 American Enterprise, Inc. v. Van Winkle, 39 Cal. 2d 210 (1952) ......................................................................................................... 2, 10 5 Amerson v. Christman, 6 261 Cal. App. 2d 811 (1968)............................................................................................... 2, 10 7 Ballard v. Anderson, 4 Cal. 3d 873 (1971) ............................................................................................................. 8, 9 8 Baral v. Schnitt, 9 1 Cal. 5th 376 (2016) ................................................................................................................ 3 Berris & Seaton v Meyers, 10 163 Cal. App. 3d Supp. 54, 60 (1984) ...................................................................................... 2 11 Caffroy v. Fremlin, 198 Cal. App. 2d 176 (1961)............................................................................................... 2, 10 12 Cal. High-Speed Rail Auth. v. Super. Court, 13 228 Cal. App. 4th 676 (2014).................................................................................................... 8 14 Chodos v. Borman, 239 Cal. App. 4th 707 (2015)............................................................................................ 12, 13 15 Crowley v. Katleman, 16 8 Cal. 4th 666 (1994) .......................................................................................................... 3, 11 Dunlop v. Hersum Lbr. Co., 17 126 Cal. App. 2d 815 (1954)............................................................................................... 2, 10 18 Hamilton v. Asbestos Corp., 22 Cal. 4th 1127 (2000) ............................................................................................................ 3 19 In re Marriage of Green, 20 143 Cal. App. 4th 1312 (2006)................................................................................................ 14 21 K.G. v. Meredeth, 204 Cal. App. 4th 164 (2012).................................................................................................... 8 22 Landsberg v. Scrabble Crossword Game Players, Inc., 23 802 F.2d 1193 (9th Cir. 1986)........................................................................................... 12, 13 Lazar v. Super. Court, 24 16 Cal. 2d 617 (1940) ............................................................................................................... 4 25 Le Francois v. Goel, 35 Cal. 4th 1094 (2005) ............................................................................................................ 6 26 Lennane v. Franchise Tax Bd., 27 51 Cal. App. 4th 1180 (1996).................................................................................................... 6 28 M ANATT , P HELPS & -ii- P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT ATTO RNEY S AT LAW LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466 1 Lynch v. Cal. Coastal Comm’n, 3 Cal. 5th 470 (2017) ................................................................................................................ 7 2 Merigan v. Bauer, 3 206 Cal. App. 2d 616 (1962)............................................................................................... 2, 10 4 Owens v. Cty. of Los Angeles, 220 Cal. App. 4th 107 (2013).................................................................................................. 14 5 Paterno v. Super. Court, 6 123 Cal. App. 4th 548 (2004).................................................................................................. 14 Reitano v. Yankwich, 7 38 Cal. 2d 1 (1951) ................................................................................................................. 14 8 San Diego Cty. Water Auth. v. Metro. Water Dist. of S. Cal., 12 Cal. App. 5th 1124 (2017).................................................................................... 4, 5, 10, 15 9 Slater v. Blackwood, 10 15 Cal. 3d 791 (1975) ............................................................................................................... 3 11 Stockton Theatres, Inc. v. Palermo, 55 Cal. 2d 439 (1961) ....................................................................................................... 12, 13 12 STATUTES 13 Code Civ. Proc. § 170.6 .......................................................................................................... 13, 14 14 Code Civ. Proc. § 577 ............................................................................................................. 1, 2, 6 Code Civ. Proc. § 870 ................................................................................................................... 15 15 Code Civ. Proc. § 1060 ............................................................................................................. 2, 10 16 OTHER AUTHORITIES 17 7 Witkin, Cal. Proc. 5th Jgmt. § 29 (2020) ..................................................................................... 2 18 Cal. Judges Benchbook Civ. Proc. Trial § 15.2 .............................................................................. 2 19 20 21 22 23 24 25 26 27 28 M ANATT , P HELPS & -iii- P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT ATTO RNEY S AT LAW LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466 1 I. INTRODUCTION 2 The parties’ cross-motions boil down to three main issues: (1) whether the judgment 3 should, as Metropolitan contends, finally determine the rights of both parties and resolve all 4 claims at issue; (2) whether a writ should issue even though the Court of Appeal vacated the first 5 one and a new writ would serve no purpose; and (3) whether prejudgment interest stopped 6 running on the date of the first judgment. All three issues cut squarely in favor of adopting 7 Metropolitan’s proposed judgment. 8 California law answers the first issue: “A judgment is a final determination of the rights of 9 the parties in an action or proceeding.” Code Civ. Proc. § 577. If San Diego has its way, the 10 judgment will be a broad, final declaration of San Diego’s version of its “rights,” but will be 11 silent for the most part on Metropolitan’s rights, and on the alleged rights that San Diego 12 unsuccessfully asserted in the 2010 and 2012 Actions. To be complete, the judgment should 13 resolve both parties’ rights, including their rights regarding the State Water Project (“SWP”) costs 14 that the Court of Appeal determined Metropolitan properly included in its transportation rates and 15 wheeling rate. The judgment should also dispose of the other affirmative claims San Diego 16 asserted, including its post-remand Rate Structure Integrity (“RSI”) clause restitution claim, and 17 the additional claims identified in Section III.E of Metropolitan’s opening brief. 18 The Court of Appeal decision answers the second issue; it reversed the trial court’s 19 judgment, provided narrow remand instructions, and vacated the writ without instructions to issue 20 a new one. This Court repeated those instructions in its July 25, 2018 Scope of Remand Order. 21 (Order Re Scope, 4:14-18.) San Diego is not entitled to a new writ. 22 On the third issue, San Diego argues that when a first judgment is fully reversed, 23 prejudgment interest runs until the trial court enters a new judgment. But that is not what 24 happened here. San Diego has repeatedly argued—and continues to argue—that the Court 25 awarded San Diego $28,678,190.90, plus 10% prejudgment interest in the November 18, 2015 26 judgment, and that the award was affirmed on appeal. Metropolitan acknowledges that this Court 27 agreed with San Diego’s argument in its Scope of Remand Order. The cases San Diego cites are 28 in accord—when a damages award is adjusted downward, and affirmed as reduced, which is what M ANATT , P HELPS & -1- P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT ATTO RNEY S AT LAW LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466 1 happened here, prejudgment interest stops running on the date of the first judgment even though 2 an appeal is filed, and even if the appellate decision states that the judgment is “reversed.” 3 As demonstrated below and in Metropolitan’s opening brief, Metropolitan’s proposed 4 form of judgment should be entered. 5 II. METROPOLITAN’S PROPOSED JUDGMENT SHOULD BE ADOPTED 6 A. Metropolitan applies the correct legal standard for a final judgment. 7 Metropolitan’s proposed judgment finally determines the rights of both parties, and 8 disposes of each claim at issue and adjudicated in the 2010 and 2012 Actions; that is what the law 9 requires. Code of Civil Procedure Section 577 describes a judgment in plain and unambiguous 10 terms: “A judgment is a final determination of the rights of the parties in an action.” The common 11 law agrees that, although there is no prescribed form, the sufficiency of a judgment depends on 12 whether it shows that the issues have been adjudicated. 7 Witkin, Cal. Proc. 5th Jgmt. § 29 13 (2020); Cal. Judges Benchbook Civ. Proc. Trial § 15.2, (citing Berris & Seaton v Meyers, 163 14 Cal. App. 3d Supp. 54, 60 (1984)). Section 577 does not provide that a judgment determines the 15 rights of a plaintiff only—it plainly requires determination of the rights of all “parties.” 16 The approach required under Section 577 is particularly salient in a declaratory relief 17 action, like these cases. As the Court of Appeal explains: 18 In actions for declaratory relief, the court should attempt to do complete equity, resolving all questions actually involved in the case 19 as between all of the respective parties. (Dunlop v. Hersum Lbr. Co., 126 Cal.App.2d 815, 820 [273 P.2d 22].) “In an action for 20 declaratory relief, the proper function of the court is to make a full and complete declaration, disposing of all questions of rights, status 21 or other legal relations encountered in construing the instrument before it.” (American Enterprise, Inc. v. Van Winkle, 39 Cal.2d 210, 22 219 [246 P.2d 935]; see Code Civ. Proc., § 1060.) It is the duty of the court hearing the action for declaratory relief to make a complete 23 determination and disposition of the controversy. (Merigan v. Bauer, 206 Cal.App.2d 616, 621 [23 Cal.Rptr. 872]; Caffroy v. 24 Fremlin, 198 Cal.App.2d 176, 184 [17 Cal.Rptr. 668].) 25 Amerson v. Christman, 261 Cal. App. 2d 811, 822 (1968). San Diego’s proposed judgment is 26 deficient as a matter of law because it fails to dispose of all rights between the parties. 27 San Diego has a different view. San Diego attempts to shoehorn the law of res judicata 28 into the law of judgment, borrowing heavily from the “primary right” theory. (S.D. Br. at 14:24- M ANATT , P HELPS & -2- P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT ATTO RNEY S AT LAW LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466 1 16:12.) Under that theory, “the invasion of one primary right gives rise to a single cause of 2 action” for res judicata purposes. Slater v. Blackwood, 15 Cal. 3d 791, 795 (1975). According to 3 San Diego, primary rights are indivisible, and therefore, even if Metropolitan defeated all of San 4 Diego’s claims but one, San Diego would be entitled to a judgment that reflects a near- 5 unqualified win for San Diego and that does not acknowledge the resolution of other claims. But 6 that’s not what indivisibility means. Indivisibility means that when a plaintiff alleges a cause of 7 action in a lawsuit, the plaintiff cannot divide its claims into separate suits. A plaintiff gets one 8 lawsuit for each “cause of action”—i.e., for each violation of a primary right. See Crowley v. 9 Katleman, 8 Cal. 4th 666, 681 (1994). San Diego is wrong on the law. 10 Its approach is also unprecedented. San Diego cites no law to support its application to the 11 law of judgment. In contrast, Metropolitan’s approach is rooted in statute and common law. 12 Moreover, the primary right theory has a narrow application that does not include 13 judgments. See Crowley, 8 Cal. 4th at 682. (“The primary right theory has a fairly narrow field of 14 application. It is invoked most often when a plaintiff attempts to divide a primary right and 15 enforce it in two suits.”). On the limited occasions the California Supreme Court has considered a 16 request to extend the primary right theory beyond res judicata, it has declined to do so. See Baral 17 v. Schnitt, 1 Cal. 5th 376, 394-95 (2016) (holding that the term “cause of action” in anti-SLAPP 18 statute does not mean the same thing as in a primary right context); Hamilton v. Asbestos Corp., 19 22 Cal. 4th 1127, 1146 (2000) (primary right theory is narrowly applied and not to resolve a 20 statute of limitations question); Crowley, 8 Cal. 4th at 682-83 (noting the narrow application of 21 the theory and declining to apply it to determine whether the probable cause element of a 22 malicious prosecution suit was satisfied). San Diego does not explain why it believes this Court 23 could adopt a new application of the primary right theory. 24 Nor does San Diego explain how the primary right theory should be extended to the law of 25 judgment. On the one hand, San Diego correctly points out that, under the primary right theory, 26 the violation of one primary right gives rise to only one cause of action regardless of the legal 27 theory advanced or the remedy sought. On the other hand, San Diego’s proposed judgment 28 includes separate treatment for each of its first three “causes of action,” which by San Diego’s M ANATT , P HELPS & -3- P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT ATTO RNEY S AT LAW LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466 1 own admission are actually separate claims under a single cause of action because they seek to 2 redress violation of a single primary right. If San Diego were correct, the Court would not need to 3 separately address any of the remedies San Diego seeks or the separate counts San Diego pleaded 4 because they are brought under the same primary right. But that result would be absurd. Of course 5 the Court should separately address each of San Diego’s claims. It should also address the claims 6 that San Diego improperly seeks to omit from the judgment. 7 B. The judgment should include Metropolitan’s procedural history section. 8 Metropolitan’s proposed judgment identifies each claim at issue and the history that bears 9 on those claims. San Diego argues that the judgment should forgo procedural history altogether. 10 (S.D. Br. at 12:17-25.) Yet San Diego devotes almost 7 pages and 8 footnotes of its opening brief 11 to detailing the procedural history that it thinks this Court needs in order to decide which form of 12 judgment to enter. (Id. at 6:20-12:9.) As detailed in Metropolitan’s opening brief, procedural 13 history is instrumental to understanding the rights and claims at issue. Procedural history should 14 be included in the judgment so that, like other writings, it can be reliably construed based on its 15 four corners, thereby sparing the parties and the court from having to parse through a decade-long 16 record to determine what was adjudicated. See Lazar v. Super. Court, 16 Cal. 2d 617, 622 (1940). 17 This clarity is particularly important given San Diego’s other pending cases with claims against 18 Metropolitan that overlap those resolved in the 2010 and 2012 Actions. 19 San Diego also includes a brief, incomplete procedural history section in its proposed 20 judgment. (S.D. Jgmt. at 1:1-12.) San Diego’s proposal is misleading because, among other 21 reasons, it fails to state that the Court of Appeal vacated the writ and judgment, and remanded “to 22 the trial court for recalculation of damages [based solely on overcharges from inclusion of WSR], 23 entry of declaratory relief on the Rate Structure Integrity clause, redetermination of the prevailing 24 party, and other proceedings consistent with the views expressed in [its] opinion.” San Diego Cty. 25 Water Auth. v. Metro. Water Dist. of S. Cal., 12 Cal. App. 5th 1124, 1166 (2017) (“SDCWA”). 26 San Diego also argues that Metropolitan’s procedural history section is self-serving. San 27 Diego briefly asserted this same argument during the meet-and-confer process. Metropolitan 28 invited San Diego to identify the procedural history in Metropolitan’s proposed judgment that it M ANATT , P HELPS & -4- P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT ATTO RNEY S AT LAW LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466 1 believed was self-serving. San Diego declined. San Diego’s brief is San Diego’s first attempt to 2 inform Metropolitan of the specific components it claims are self-serving. It identifies only two. 3 First, San Diego notes that Metropolitan’s proposed judgment does not detail every minor 4 aspect of the Court’s ruling on Metropolitan’s July 2, 2012 motion to strike. (S.D. Br. at 12:26- 5 13:11.) According to San Diego, Metropolitan should have also noted, among other things, that 6 the Court overruled a demurrer based on the statute of limitations. That misses the point. An order 7 overruling a demurrer does not resolve any claim. Moreover, a statute of limitations defense is not 8 an affirmative claim. As detailed above and in Metropolitan’s opening brief, Metropolitan’s 9 proposed judgment disposes of each claim, finally determines each party’s rights, and includes 10 the information needed to understand the disposition. The motion to strike is important for the 11 very reason flagged in San Diego’s brief: although the Court struck allegations, it did not “chop 12 up” the complaint or require a new amended pleading. (Id. at 13:6-7.) Without the order on 13 Metropolitan’s motion to strike, the operative pleadings are not an accurate or complete reflection 14 of the scope of San Diego’s claims. The Court’s ruling on the statute of limitations—also 15 resolved in the Court of Appeal’s published decision, SDCWA, 12 Cal. App. 5th at 1141-43— 16 carries no similar significance. 17 Second, San Diego argues that Metropolitan tries to cabin the judgment to the 18 administrative record for the years 2011-2014. But where a claim was resolved based on the 19 insufficiency of the record in those years, the inclusion of this fact is essential. This is— 20 crucially—the case with San Diego’s WSR claim, on which San Diego prevailed only due to lack 21 of substantial evidence in the record to support the allocation of the rate to transportation. See 22 SDCWA, 12 Cal. App. 5th at 1150-51 (finding that there was not substantial evidence to support 23 Metropolitan’s inclusion of the WSR in its wheeling rate), 1151 (finding that Metropolitan’s 24 inclusion of the WSR in its transportation rates violated the common law “for the same 25 reasons”). 1 26 1 As so-called further “evidence” that Metropolitan’s form of judgment is self-serving, San Diego submitted a 12-page alternative preamble that, by its own admission, should not be included in 27 the judgment. (S.D. Br. at 14:16-21.) San Diego’s apparent purpose in filing the preamble, is to demonstrate for the Court the “folly” of setting forth procedural history by including every bit of 28 minutia it could muster. San Diego wastes the Court’s time and misses the point. The judgment M ANATT , P HELPS & -5- P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT ATTO RNEY S AT LAW LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466 1 San Diego also ignores that Metropolitan’s proposed judgement includes determinations 2 against Metropolitan. (See, e.g., Met. Jgmt. at 5:4-6 (stating Metropolitan is not entitled to deduct 3 from San Diego’s damages the amount it could have lawfully charged for demand management 4 costs in supply rates).) Metropolitan was not “cherry picking.” Rather than detailing every aspect 5 of the 10-year record in these cases, Metropolitan’s proposed judgment endeavors to include the 6 procedural history that bears on each claim regardless of which party prevailed. 7 Finally, San Diego argues that Metropolitan conflates “claims” with “causes of action.” 8 (S.D. Br. at 13:12-14:11.) San Diego neither defines these terms nor explains how they bear on 9 the procedural history section. San Diego appears to make this “claim”/“cause of action” 10 distinction because it thinks the Court is bound by its October 30, 2015 Order on Post Trial 11 Issues, Form of Judgment and Writ (“First Form of Judgment Order”), even though the first 12 judgment was vacated. That order limited the first judgment to “causes of action”—not as defined 13 by primary right theory, but as pleaded by San Diego—with respect to certain claims. 2 (See S.D. 14 Br. at 13:12-22; First Form of Judgment Order at 3.) Regardless, this Court is not bound by the 15 First Form of Judgment Order. Cf. Le Francois v. Goel, 35 Cal. 4th 1094, 1104-05 (2005) 16 (holding trial court has inherent authority to revisit its own prior rulings); Lennane v. Franchise 17 Tax Bd., 51 Cal. App. 4th 1180, 1186 (1996) (holding trial court decisions are not “law of the 18 case”). San Diego cites no authority for their contrary view that the Court is so bound, nor does 19 any appear from research. Further, that order expressly favors a form of judgment consistent with 20 Section 577, and makes no mention of primary right theory. First Form of Judgment Order at 3. 21 C. First Cause of Action—Writ of Mandate (S.D. Jgmt., Page 1:14-2:3, Par. 1) 22 San Diego argues that it is entitled to judgment in its favor on its first cause of action and 23 to a writ directing Metropolitan to enact only legal wheeling and transportation rates in the future. 24 should completely dispose of the claims at issue and finally determine the parties’ rights—no 25 more and no less. And, to the extent San Diego believes refinements are needed to strike the right balance, it could and should have raised them in the meet-and-confer process. 26 2 The First Form of Judgment Order excluded “Proposition 26 (2010 complaint), Proposition 13, 27 Government Code Section 66013, the Metropolitan Water District Act, and ‘dry year peaking’ (2012 complaint)” from the judgment as separate paragraphs. (See First Form of Judgment Order 28 at 3.) Only the Proposition 26 and dry year peaking claims are at issue here. M ANATT , P HELPS & -6- P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT ATTO RNEY S AT LAW LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466 1 (S.D. Br. at 23:3-24:13.) San Diego asserts that it is so entitled because the Court of Appeal 2 determined that Metropolitan’s inclusion of the WSR in its transportation rates and wheeling rate 3 was unlawful. But that portion of the Court of Appeal’s decision is already accounted for in both 4 parties’ proposed judgments under the second through fourth causes of action, which provide 5 adequate remedies at law to San Diego without issuance of a new writ. And the Court of Appeal 6 did not hold, as San Diego incorrectly suggests, that San Diego is entitled to a new writ. Instead, 7 the Court of Appeal vacated the writ without instructions to issue a new one. 8 Moreover, there would be no purpose to a new writ. Of its rate challenges, San Diego 9 succeeded only on its WSR claim, based only on the sufficiency of the administrative record in 10 2011-2014. That has no bearing on the sufficiency of the different administrative records in later 11 years. And the 2011-2014 rates are now expired. 12 For the reasons set forth in Metropolitan’s opening brief, no writ should issue. 13 San Diego’s only other argument in support of writ relief is that its claim is not moot. 14 (S.D. Br. at 24:15-25:22.) According to San Diego, Metropolitan waived mootness because the 15 challenged rates expired during the litigation. (Id. at 24:17-23.) San Diego cites no authority for 16 the proposition that Metropolitan waived mootness. San Diego’s argument should be rejected on 17 that basis alone. 18 San Diego’s arguments also fall short of the standard for demonstrating waiver. Waiver is 19 the intentional relinquishment of a known right. Lynch v. Cal. Coastal Comm’n, 3 Cal. 5th 470, 20 475 (2017). The facts and circumstances of the writ San Diego now seeks were unknown to the 21 parties earlier in the litigation, and thus defenses to the writ relief San Diego now seeks could not 22 have been waived. San Diego’s requested writ is based on new facts, including: (1) San Diego 23 seeks a writ limited to the WSR and thus narrower than the first writ; (2) Metropolitan prevailed 24 on appeal, and the Court of Appeal vacated the original writ without instruction to issue a new 25 one; and (3) Metropolitan has not included the WSR in the Exchange Agreement price since 26 2018, or at all in its 2021-2022 rates, as acknowledged by San Diego in its February 28, 2020 27 letter to the Court. (Lee Decl. in Support of Met. Jgmt., Ex. E.) Metropolitan could not have 28 waived the right to challenge San Diego’s request for a writ on these facts. And, even if San M ANATT , P HELPS & -7- P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT ATTO RNEY S AT LAW LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466 1 Diego’s waiver arguments were correct, Metropolitan’s purported waiver does not provide a basis 2 for this Court to exercise its discretion to enter a writ that serves no practical purpose. See Cal. 3 High-Speed Rail Auth. v. Super. Court, 228 Cal. App. 4th 676, 707 (2014) (“A writ is not 4 available to enforce abstract rights,” and “courts will not issue a useless or unenforceable writ”). 5 San Diego also argues that writ relief is not moot where it concerns an important issue of 6 public interest that is likely to recur. (S.D. Br. at 25:6-13.) San Diego cites two cases for the rule: 7 K.G. v. Meredeth, 204 Cal. App. 4th 164 (2012) and Ballard v. Anderson, 4 Cal. 3d 873 (1971). 8 (S.D. Br. at 25:6-13.) The doctrine in those cases—capable of repetition, yet evading review— 9 does not apply here. Those cases involve challenges to a conservatorship entered without an 10 incapacity determination (K.G.), and to a hospital’s refusal to consider a physician’s application 11 to perform an abortion without parental consent (Ballard). The doctrine applied because the 12 duration of the condition to be redressed in each case—a one-year conservatorship in K.G. and a 13 20-week abortion eligibility window in Ballard—made trial and appeal impossible before the 14 case became moot. See Ballard, 4 Cal. 3d at 876-77; K.G., 204 Cal. App. 4th at 175. That did not 15 happen in this case. San Diego had its trial and an appeal. 16 The doctrine also does not apply because Metropolitan does not attempt to evade review. 17 Review occurred. And Metropolitan’s form of judgment acknowledges that San Diego is entitled 18 to declaratory relief, a determination of invalidity, and contract damages. As Metropolitan argues 19 in its opening brief, San Diego has received an adequate legal remedy through its breach of 20 contract claim, providing WSR damages to redress the same injury at issue in its mandamus 21 claim. No such remedies existed in either K.G. or Ballard, where respondents argued that the 22 lawsuits should be dismissed in their entirety. 23 San Diego’s cases are also inapposite. In K.G., the Court of Appeal remanded for the trial 24 court to determine whether mandamus should be granted based on whether the respondent had 25 taken or would take the action necessary to comply with the law. K.G., 204 Cal. App. 4th at 185- 26 86. K.G. thus supports Metropolitan’s position that mandamus is not proper on remand where the 27 respondent has already complied—in K.G. by conducting incapacity determinations, and here by 28 no longer including the WSR in its transportation and wheeling rates. M ANATT , P HELPS & -8- P HILLIPS , LLP METROPOLITAN’S RESPONSE TO SAN DIEGO’S OPENING BRIEF RE FORM OF JUDGMENT ATTO RNEY S AT LAW LOS A NG EL ES CASE NO. CPF-10-510830, CPF-12-512466 1 Ballard is also inapposite. That case involves a physician (Dr. Ballard) and his minor 2 patient who medically qualified for an abortion even though her parents would not consent. The 3 facility refused to consider Dr. Ballard’s application to perform the procedure for the sole reason 4 that the patient had not obtained parental consent. Ballard, 4 Cal. 3d at 876-77. Dr. Ballard was 5 entitled to a writ because he had no other remedy—without one, the hospital would refuse to 6 consider all applications to perform abortions on competent patients in the absence of parental 7 consent. Here, San Diego has received an adequate remedy at law via contract damages, and the 8 conduct targeted by the proposed writ has already ceased because the 2011-2014 rates are expired 9 (and, although a different record would be at issue, Metropolitan is not charging the WSR). 10 Even if San Diego were entitled to a writ—which is not the case—it would not be entitled 11 to the specific writ it seeks. San Diego improperly attempts to expand the scope of this Court’s 12 and the Court of Appeal’s decisions regarding the WSR. San Diego asks the Court to issue a writ 13 requiring Metropolitan “to exclude the costs of conservation programs and other demand 14 management programs.” (S.D. Jgmt. at 1:21-22.) But not all of Metropolitan’s present and future 15 conservation and other demand management programs were at issue in the 2010 and 2012 rate 16 challenges, which were limited to Metropolitan’s inclusion of the WSR and SWP transportation 17 costs in its transportation rates and wheeling rate, and only for the years 2011-2014. Including 18 this additional language in the judgment would, without any basis, prohibit Metropolitan from 19 including lawful costs in its future rates without any adjudication, and particularly without the 20 critical adjudication of the sufficiency of the record in later years. San Diego’s request for a new 21 writ should be denied. 22 D. Second and Third Causes of Action—Declaratory Relief and Determination of Invalidity (S.D. Jgmt., Page 2:4-28, Par. 2-3) 23 24 San Diego proposes near-identical language in the second and third paragraphs of its 25 proposed judgment. These paragraphs seek a “declaration” (Paragraph 2) and a “determination” 26 (Paragraph 3) that “the inclusion of the [WSR] in Metropolitan’s wheeling rate and the 27 transportation rates charged under the Exchange Agreement is unlawful and invalid and, further, 28 that Section 4405 of Metropolitan’s Admin