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1 KEKER, VAN NEST & PETERS LLP
JOHN W. KEKER - # 49092
2 jkeker@keker.com
DAN JACKSON - # 216091 ELECTRONICALLY
3 djackson@keker.com
WARREN A. BRAUNIG - # 243884 F I L E D
Superior Court of California,
4 wbraunig@keker.com County of San Francisco
NICHOLAS S. GOLDBERG - # 273614
5 ngoldberg@keker.com 07/16/2020
633 Battery Street Clerk of the Court
BY: RONNIE OTERO
6 San Francisco, CA 94111-1809 Deputy Clerk
Telephone: 415 391 5400
7 Facsimile: 415 397 7188
8 MARK J. HATTAM - # 173667
mhattam@sdcwa.org
9 General Counsel
SAN DIEGO COUNTY WATER AUTHORITY
10 4677 Overland Avenue
San Diego, CA 92123
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 Case No. CPF-10-510830
AUTHORITY,
18 Consolidated with: Case No. CPF-12-512466
Petitioner and Plaintiff,
19 SAN DIEGO COUNTY WATER
v. AUTHORITY’S RESPONSIVE BRIEF
20 RE FORM OF JUDGMENT AND
METROPOLITAN WATER DISTRICT OF OPPOSITION TO METROPOLITAN
21 SOUTHERN CALIFORNIA; ALL WATER DISTRICT OF SOUTHERN
PERSONS INTERESTED IN THE CALIFORNIA’S MOTION FOR ENTRY
22 VALIDITY OF THE RATES ADOPTED BY OF JUDGMENT
THE METROPOLITAN WATER DISTRICT
23 OF SOUTHERN CALIFORNIA ON Date: July 30, 2020
APRIL 13, 2010 TO BE EFFECTIVE Time: 1:30 p.m.
24 JANUARY 2011; and DOES 1-10, Dept.: 304
25 Respondents and Defendants. Judge: Hon. Anne-Christine Massullo
26
27
28
SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF &
OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT
Case Nos. CPF-10-510830 & CPF-12-512466
1386887
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ...............................................................................................................6
4 II. ARGUMENT .......................................................................................................................6
5 A. Metropolitan’s self-serving and unnecessary preamble invites error and
should not be incorporated in the final judgment. ...................................................6
6
1. Metropolitan concedes that a preamble is not legally required. ..................6
7
2. If any preamble is adopted, it should be the Water Authority’s version. ....7
8
B. The Water Authority is entitled to judgment in its favor on Causes of
9 Action 1, 2, and 3 challenging Metropolitan’s unlawful and invalid rates. .............8
10 1. Metropolitan ignores controlling authority dictating that this Court
enter judgment on causes of action based on a primary right analysis. .......9
11
2. Metropolitan’s attempt to carve up the Water Authority’s causes of
12 action by legal theory has twice been rejected by this Court.....................10
13 C. Because the Water Authority prevailed on its First Cause of Action, this
Court must issue a peremptory writ of mandate. ...................................................11
14
1. The law requires a writ of mandate to issue. .............................................11
15
2. Metropolitan’s substantive attacks on the issuance of a writ have been
16 waived—but, in any event, are meritless. ..................................................12
17 a. Judgment on the second and third causes of action does not
provide an “adequate remedy at law” ............................................12
18
b. The First Cause of Action is not moot. ..........................................14
19
D. The Water Authority is entitled to $28.7 million in damages, plus
20 prejudgment interest through the date of entry of this judgment. ..........................14
21 1. Statutory prejudgment interest runs through the date the Court enters
final judgment post-remand. ......................................................................15
22
2. Metropolitan’s illusory “tender” did not halt the accrual of interest. ........16
23
E. The Water Authority is entitled to judgment on its Fifth Cause of Action
24 for Declaratory Relief re Metropolitan’s Rate Structure Integrity Clause. ............18
25 F. Metropolitan’s suggestion that “claims” were improperly omitted from the
Water Authority’s [Proposed] Judgment is wrong. ...............................................19
26
III. CONCLUSION ..................................................................................................................20
27
28
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1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 300 DeHaro St. Investors v. Dep’t of Housing & Cmty. Dev.,
161 Cal. App. 4th 1240 (2008) ................................................................................................13
5
6 Am. Corp. Sec., Inc. v. Su,
220 Cal. App. 4th 38 (2013) ....................................................................................................13
7
California School Boards Ass’n v. California,
8 192 Cal. App. 4th 770 (2011) ..................................................................................................13
9 County of San Diego v. California,
164 Cal. App. 4th 580 (2008) ..................................................................................................13
10
DuPont Merck Pharm. Co. v. Superior Court,
11
78 Cal. App. 4th 562 (2000) ....................................................................................................14
12
Flores v. Dep’t of Corr. & Rehab.,
13 224 Cal. App. 4th 199 (2014) ..................................................................................................13
14 Franklin Capital Corp. v. Wilson,
148 Cal. App. 4th 187 (2007) ..................................................................................................19
15
Holden v. City of San Diego,
16
43 Cal. App. 5th 404 (2019) ....................................................................................................12
17
Jackson v. Cty. of Los Angeles,
18 60 Cal. App. 4th 171 (1997) ....................................................................................................16
19 K.G. v. Meredith,
204 Cal. App. 4th 164 (2012) ..................................................................................................14
20
Karlsen v. Superior Court,
21 139 Cal. App. 4th 1526 (2006) ................................................................................................12
22
Kasem v. Dion-Kindem,
23 230 Cal. App. 4th 1395 (2014) ................................................................................................12
24 Kurwa v. Kislinger,
57 Cal. 4th 1097 (2013) .............................................................................................................9
25
Landsberg v. Scrabble Crossword Game Players, Inc.,
26 802 F.2d 1193 (9th Cir. 1986) .................................................................................................15
27 Law Offices of Andrew L. Ellis v. Yang,
28 178 Cal. App. 4th 869 (2009) ..................................................................................................19
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1 Lazar v. Superior Court,
16 Cal. 2d 617 (1940) ................................................................................................................7
2
Leatherby Ins. Co. v. City of Tustin,
3
76 Cal. App. 3d 678 (1977) .....................................................................................................17
4
In re Marriage of Green,
5 143 Cal. App. 4th 1312 (2006) ................................................................................................16
6 Mission Ins. Grp., Inc. v. Merco Constr. Eng’rs, Inc.,
147 Cal. App. 3d 1059 (1983) .................................................................................................17
7
Munoz v. City of Union City,
8 173 Cal. App. 4th 199 (2009) ..................................................................................................16
9
Mycogen Corp. v. Monsanto Co.,
10 28 Cal. 4th 888 (2002) ...............................................................................................................9
11 Newhall Cty. Water Dist. v. Castaic Lake Water Ag.,
243 Cal. App. 4th 1430 (2016) ................................................................................................13
12
People v. Landon White Bail Bonds,
13 234 Cal. App. 3d 66 (1991) .......................................................................................................7
14
Reid v. Superior Court,
15 44 Cal. App. 349 (1919) ............................................................................................................7
16 Reitano v. Yankwich,
38 Cal. 2d 1 (1951) ..................................................................................................................17
17
Richmond v. Dart Indus., Inc.,
18 196 Cal. App. 3d 869 (1987) ...................................................................................................12
19 Rose v. Hecht,
20 94 Cal. App. 2d 662 (1949) .....................................................................................................17
21 San Diego Cty. Water Auth. v. Metroplitan Water Dist. of So. Cal.,
12 Cal. App. 5th 1124 (2017) .......................................................................................... passim
22
Slater v. Blackwood,
23 15 Cal. 3d 791 (1975) ................................................................................................................9
24 Snapp v. State Farm Fire & Cas. Co.,
60 Cal. 2d 816 (1964) ..............................................................................................................15
25
26 Tevis v. City & Cty. of San Francisco,
43 Cal. 2d 190 (1954) ..............................................................................................................13
27
Vernon v. Great W. Bank,
28 51 Cal. App. 4th 1007 (1996) ....................................................................................................6
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1 Villacres v. ABM Indus. Inc.,
189 Cal. App. 4th 562 (2010) ....................................................................................................9
2
Younger v. Cty. of El Dorado,
3
5 Cal. 3d 480 (1971) ................................................................................................................14
4
Statutes
5
Civ. Code § 1485 ...........................................................................................................................16
6
Civ. Code § 3287 ...........................................................................................................................15
7
Civ. Code § 3289 ...........................................................................................................................15
8
Code Civ. Proc. § 577 ..........................................................................................................9, 11, 18
9
Code Civ. Proc. § 581 ....................................................................................................................19
10
11 Code Civ. Proc. §§ 680.010 et. seq ................................................................................................17
12 Code Civ. Proc. § 695.220 .............................................................................................................17
13 Code Civ. Proc. § 908 ....................................................................................................................17
14 Code Civ. Proc. § 1085 ..................................................................................................................14
15 Code Civ. Proc. § 1095 ..................................................................................................................11
16 Water Code § 1813 ..........................................................................................................................8
17
18
19
20
21
22
23
24
25
26
27
28
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1 I. INTRODUCTION
2 Metropolitan’s Motion for Entry of Judgment only confirms what the Water Authority
3 predicted in its Opening Brief: As these cases finally near completion, Metropolitan is trying to
4 relitigate the key issues that it lost over the last decade. In particular, Metropolitan takes
5 advantage of the fact that that this complex litigation is no longer before the same presiding trial
6 judge to raise arguments that the Court has already rejected—sometimes more than once.
7 Metropolitan also rides roughshod over the facts and the law in an effort to spin this Court’s and
8 the Court of Appeal’s prior rulings to its advantage. A final judgment need not, and should not,
9 attempt to encompass every collateral issue or legal theory raised over a case’s history—that is
10 what the case record is for. Rather, a final judgment should clearly set forth the disposition of
11 each cause of action, which is what the Water Authority’s [Proposed] Judgment does. Nor does
12 this Court need to review ten years of pleadings, transcripts, and orders to prepare an unnecessary
13 procedural preamble addressing issues that the Court has already ruled do not belong in the final
14 judgment. Rather, the Court should bring this lengthy litigation to a close by adopting the Water
15 Authority’s [Proposed] Judgment and issuing its [Proposed] Peremptory Writ of Mandate. Not
16 only is the Water Authority entitled to a writ as a matter of law, it is the only way to stop
17 Metropolitan from committing the same violations year after year. 1
18 II. ARGUMENT
19 A. Metropolitan’s self-serving and unnecessary preamble invites error and
should not be incorporated in the final judgment.
20
1. Metropolitan concedes that a preamble is not legally required.
21
22 As set forth in the Water Authority’s Opening Brief, a preamble attempting to recount the
23 procedural history of this litigation is unnecessary because, as a matter of law, this Court’s final
24 judgment will incorporate the entire case record, merging any “earlier nonappealable orders . . .
25 into that judgment” for later review. Vernon v. Great W. Bank, 51 Cal. App. 4th 1007, 1013
26 (1996); June 17, 2020 SDCWA Opening Br. (“SDCWA Br.”) at 12–14. Metropolitan concedes
27 1
To assist the Court in its review of the competing proposed judgments, the Water Authority
28 attaches a chart at Appendix I comparing the parties’ respective positions.
6
SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF &
OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT
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1 as much by acknowledging that (1) “there is no prescribed form for a judgment,” and, (2) when
2 necessary, the case record may be consulted to interpret a judgment. See June 17, 2020 Met.
3 MPA ISO Mot. for Entry of J. (“Met. MPA”) at 10–11.
4 The cases relied on by Metropolitan in support of its procedural preamble actually confirm
5 how unnecessary it is to include one. Together, they demonstrate that a case’s full record is often
6 reviewed to interpret a judgment’s “scope and effect.” People v. Landon White Bail Bonds, 234
7 Cal. App. 3d 66, 76 (1991); see also id. at 76–78 (reviewing case record to determine if correct
8 defendant had been named in a final judgment); Lazar v. Superior Court, 16 Cal. 2d 617, 620–22
9 (1940) (reviewing case record to determine if settlement agreement had been properly
10 incorporated in final divorce decree). In fact, the one case that Metropolitan cites for the
11 proposition that “a judgment may include a procedural history” is over a century old. Met. MPA
12 at 11 (emphasis added). But even that case, Reid v. Superior Court, 44 Cal. App. 349 (1919),
13 does not prove Metropolitan’s point because it addressed a situation in which the Penal Code
14 actually required the judgment to provide some factual background. Id. at 362.
15 Recognizing that the law does not require a preamble, Metropolitan pivots to arguing that,
16 given the related pending cases, this Court should characterize certain interlocutory rulings so that
17 “later courts” may determine what happened in the current litigation. Met. MPA at 12. But the
18 record is the record, and any reviewing court can and will examine it in full if necessary.
19 Paraphrasing this Court’s, or the Court of Appeal’s, decisions years after the fact will only make
20 the judgment susceptible to error. Indeed, in 2015, Metropolitan recognized this risk, arguing the
21 judgment should “incorporate by reference” prior decisions “rather than attempting to summarize
22 them so that the judgment is simpler and more accurate.” Nov. 18, 2015 Met. Br. at 1. 2
23 2. If any preamble is adopted, it should be the Water Authority’s version.
24 The Water Authority’s Opening Brief details the many ways in which Metropolitan’s
25 preamble mischaracterizes the record, conflates legal theories with causes of action, omits
26
2
27 Notably, this Court has routinely entered judgment without any preamble at all. See Ozer v.
Zenz, No. CGC-08-477966, 2013 WL 7862064 (Sept. 20, 2013) (Massullo, J.); McNair v. City &
28 Cty. of San Francisco, No. CGC-09-489734, 2013 WL 12177792 (Apr. 12, 2013) (Massullo, J.).
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1 interlocutory orders adverse to Metropolitan, and misconstrues prior rulings. See SDCWA Br. at
2 12–14. Metropolitan’s Motion does not address these flaws; instead it compounds them.
3 While Metropolitan argues that its preamble provides “a full account of the case from
4 pleading through trial,” (Met. MPA at 12; see also id. at 1, 10), neither its Motion nor its
5 preamble cites to the trial court record pre-appeal. Metropolitan asserts its own characterizations
6 of the Court’s rulings. And Metropolitan is frequently wrong when it does so. For example,
7 Metropolitan frames this Court’s and the Court of Appeal’s rulings on the Water Stewardship
8 Rate as limited to a “substantial evidence” review of the administrative record. Met. Prop. J. at
9 3–4; Met. MPA at 7, 9–10. In fact, both courts ruled in the Water Authority’s favor based on the
10 Wheeling Statutes, which provide that “all relevant evidence” shall be considered, not just that
11 which is in the administrative record. Water Code § 1813; April 24, 2014 Statement of Decision
12 (“SOD I”) at 21; SDCWA v. MWD, 12 Cal. App. 5th 1124, 1144, 1151 (2017). Other examples of
13 Metropolitan’s mischaracterizations abound. See, e.g., SDCWA Br. at 12–13 (explaining how
14 Metropolitan mischaracterizes July 2, 2012 ruling on motion to strike); id. at 13 n.11 (same for
15 Jan. 4, 2012 ruling on demurrer); id. (same for Mar. 29, 2013 ruling on Proposition 26). 3
16 Because no procedural preamble is necessary, this Court should omit one from the final
17 judgment and avoid venturing into this briar patch altogether. If, however, the Court decides to
18 include a lengthy preamble, it should adopt the Water Authority’s alternative preamble, which—
19 unlike Metropolitan’s—is accurate, comprehensive, fair, and fully-cited. 4
20
B. The Water Authority is entitled to judgment in its favor on Causes of Action
21 1, 2, and 3 challenging Metropolitan’s unlawful and invalid rates.
22 The Court of Appeal affirmed that Metropolitan’s wheeling rate and the transportation
23 rates charged under the Exchange Agreement for 2011–2014 were unlawful and invalid because
24 the Water Stewardship Rate is “supply-related, not transportation-related” and “outside the scope
25 3
Metropolitan also tries to sneak this “administrative record” limitation into its proposed
judgment on the Second Cause of Action. See Met. Proposed J. ¶ 6:12–16. For the reasons
26 discussed here and in the Water Authority’s Opening Brief, the Court should not incorporate this
reference to the administrative record in the final judgment. See SDCWA Br. at 14, 16.
27 4
The Water Authority submitted its Alternative Preamble to [Proposed] Judgment as Exhibit A to
28 the June 17, 2020 Decl. of Warren A. Braunig ISO SDCWA’s Opening Br. (“Braunig Decl.”).
8
SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF &
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Case Nos. CPF-10-510830 & CPF-12-512466
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1 of recoverable costs contemplated by the wheeling statutes.” SDCWA v. MWD, 12 Cal. App. 5th
2 at 1166. The Water Authority thus prevailed on its first three causes of action, which sought, in
3 turn, a writ of mandate, declaratory relief, and a determination of invalidity. Metropolitan
4 accepts, as it must, that judgment should be entered in the Water Authority’s favor “with respect
5 to” the Water Stewardship Rate. Met. MPA at 9, 15. It argues, however, that judgment should be
6 broken down, not by cause of action, but by legal theory and that judgment should then be entered
7 in its favor with respect to the State Water Project transportation costs and the other “claim[s] that
8 San Diego litigated under each cause of action.” Id. at 9, 11, 15, 22; Met. Proposed J. ¶¶ 1, 5, 7,
9 10. This argument contravenes binding legal authority and the Court’s own prior rulings.
10
1. Metropolitan ignores controlling authority dictating that this Court
11 enter judgment on causes of action based on a primary right analysis.
12 California law makes clear that a final judgment must dispose of “all the causes of action
13 pending between the parties.” Kurwa v. Kislinger, 57 Cal. 4th 1097, 1100 (2013) (emphasis
14 added); see also Code Civ. Proc. § 577. The California Supreme Court has further directed that
15 “the invasion of one primary right gives rise to a single cause of action,” which is “based upon the
16 harm suffered, as opposed to the particular theory asserted by the litigant.” Slater v. Blackwood,
17 15 Cal. 3d 791, 795 (1975); see also Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 904
18 (2002). “The most salient characteristic of a primary right is that it is indivisible.” Villacres v.
19 ABM Indus. Inc., 189 Cal. App. 4th 562, 576 (2010).
20 Accordingly, here, judgment must be entered in the Water Authority’s favor on its first
21 three causes of action because the same indivisible, primary right underlies each one—that is the
22 right to be free from Metropolitan’s unlawful and invalid wheeling and transportation rates. And
23 it is this very right that the Water Authority vindicated when the Court of Appeal affirmed that
24 the inclusion of the Water Stewardship Rate in Metropolitan’s wheeling and transportation rates
25 was unlawful and invalid. SDCWA v. MWD, 12 Cal. App. 5th at 1130.
26 The Water Authority obviously recognizes that the Court of Appeal reversed this Court’s
27 decision invalidating Metropolitan’s allocation of State Water Project transportation costs to the
28 System Access Rate and System Power Rate. See id. The Water Authority is not seeking to undo
9
SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF &
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1 or ignore that outcome. It simply has no bearing on the ultimate resolution of each cause of
2 action in the judgment. The misallocation of State Water Project costs was just one legal theory
3 alleged by the Water Authority in support of its first three causes of action. The holding on State
4 Water Project costs does not change the fact that the Court of Appeal had a separate basis to rule
5 Metropolitan’s wheeling and transportation rates unlawful and invalid. The only question now is
6 whether the Water Authority prevailed on its indivisible primary right to be free from
7 Metropolitan’s unlawful and invalid wheeling and transportation rates, and the answer is “yes.”
8
2. Metropolitan’s attempt to carve up the Water Authority’s causes of
9 action by legal theory has twice been rejected by this Court.
10 In its Motion, Metropolitan does not just ignore California law; it also disregards this
11 Court’s rulings that the judgment should not carve up causes of action by underlying legal theory.
12 Metropolitan contends that the Water Authority “could have pleaded” its “various claims”
13 regarding the Water Stewardship Rate, State Water Project costs, Proposition 26, and dry year
14 peaking “as separate causes of action.” Met. MPA at 11–12; id. at 15–16. It maintains that the
15 Water Authority’s “election to pursue the claims in a single cause of action at the pleading stage
16 should not permit [the Water Authority] to omit from the judgment its losses.” Id. at 16.
17 Metropolitan has twice made this same argument and lost. It should lose once more.
18 First, in connection with a 2013 motion for judgment on the pleadings, the Court rebuffed
19 Metropolitan’s effort to divide up, and dispose of, the Water Authority’s causes of action by legal
20 theory. See Sept. 20, 2013 Order Denying Met’s MJOP at 2. The Court denied Metropolitan’s
21 attack on the Water Authority’s “theory of recovery based on Proposition 26” because it would
22 not have resulted in the adjudication of “an entire cause of action.” Id. The Court further ruled:
23 Sometimes, plaintiffs really do combine in a single denominated claim two causes
of action in th[e] “primary right” sense; that is, their draftsmanship is just that bad.
24 The bad draftsmanship is no defense, and there is nothing wrong in granting
judgment on one of those “causes of action.” But Metropolitan does not suggest,
25 nor could it, that its motion disposes of a cause of action in this sense.
26 Id. (emphasis added).
27 Then, in deciding the form of the Original Judgment, the Court overruled the exact same
28 legal theory-by-legal theory approach that Metropolitan pushes this Court to adopt now. It
10
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1 explicitly rejected Metropolitan’s argument that the “judgment ought to list the claims on which it
2 prevailed,” and held that, under Code of Civil Procedure § 577, the Water Authority “is correct to
3 list the causes of action only.” Oct. 30, 2015 Order on Post Trial Issues (“Post-Trial Order”) at 3.
4 Metropolitan does not even mention—much less address—these prior rulings. This Court
5 was right then, and it should not contradict its prior rulings now. Both sides have won and lost
6 issues in this decade-long litigation, but that is beside the point when it comes to issuing a final
7 judgment on each cause of action. Judgment should be entered for the Water Authority on the
8 first three causes of action because it prevailed on those causes of action.
9 C. Because the Water Authority prevailed on its First Cause of Action, this
Court must issue a peremptory writ of mandate.
10
11 1. The law requires a writ of mandate to issue.
12 It is undisputed that where, as here, judgment in a writ of mandate action is “given for the
13 applicant, the applicant may recover the damages which the applicant has sustained . . . and a
14 peremptory mandate must also be awarded without delay.” Code Civ. Proc. § 1095 (emphasis
15 added). Metropolitan has no meaningful response to this legal reality.
16 Indeed, Metropolitan admits all of the factual predicates for issuance of a writ. First,
17 Metropolitan admits that one of the theories underlying the Water Authority’s writ cause of action
18 was its challenge to the inclusion of the Water Stewardship Rate in Metropolitan’s wheeling and
19 transportation rates. See Met. MPA at 11, 13–14. Second, Metropolitan admits that judgment
20 should be entered in the Water Authority’s favor “with respect to” this challenge. Id. at 15. And
21 third, Metropolitan admits that the Water Authority is seeking “a writ on the only part of its rate
22 challenges that it won—Metropolitan’s unlawful inclusion” of the Water Stewardship Rate. Id. at
23 13. Thus, even by Metropolitan’s own fragmented interpretation of the Court of Appeal’s
24 Opinion, the Water Authority prevailed on the Water Stewardship Rate theory underlying its First
25 Cause of Action. Section 1095 therefore directs that a writ “must” issue “without delay.”
26 The Court of Appeal’s Opinion does not in any way preclude a writ. Metropolitan argues
27 that, because the Court of Appeal remanded “without any instruction to issue a new writ,” the
28 issuance of a writ “would exceed the scope of the Court of Appeal’s decision.” Met. MPA at 12.
11
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1 Nonsense. The Court of Appeal’s remand instructed this Court to make additional decisions and
2 conduct further “proceedings consistent with the views expressed in th[e] opinion.” SDCWA v.
3 MWD, 12 Cal. App. 5th at 1166. Given that the Court of Appeal affirmed this Court’s ruling on
4 the First Cause of Action with respect to the Water Stewardship Rate, issuance of a writ is not
5 merely “consistent with” the appellate ruling; it is mandated by that ruling. Beyond summarily
6 vacating the Original Writ in accordance with its rulings on the Water Authority’s rate challenges,
7 the Court of Appeal was otherwise silent as to the writ. See id. at 1129–30, 1166. The Court of
8 Appeal neither held nor suggested that the Water Authority is not entitled to the writ that the
9 Legislature has mandated. 5
10
2. Metropolitan’s substantive attacks on the issuance of a writ have been
11 waived—but, in any event, are meritless.
12 In its Motion, Metropolitan advances two arguments that it has never made in a decade of
13 litigation. First, Metropolitan argues that a writ is unnecessary because the “proposed judgment
14 already includes an adequate remedy.” Met. MPA at 12. Second, Metropolitan argues that the
15 Water Authority’s “mandamus claim is moot.” Id. Both arguments go to the question of whether
16 the Original Writ should have issued in the first place, and Metropolitan’s failure to raise either
17 argument then—or with the Court of Appeal—renders them forfeited and waived. See Holden v.
18 City of San Diego, 43 Cal. App. 5th 404, 418 (2019) (ruling plaintiff had “waived or forfeited”
19 argument “both in the trial court and on appeal” by failing to raise it); see also Kasem v. Dion-
20 Kindem, 230 Cal. App. 4th 1395, 1402 (2014); Richmond v. Dart Indus., Inc., 196 Cal. App. 3d
21 869, 879 (1987). But, even if these arguments were not procedurally foreclosed, they are wrong.
22 a. Judgment on the second and third causes of action does not
provide an “adequate remedy at law.”
23
In previously awarding the Water Authority writ relief, this Court recognized that the
24
Water Authority had no other adequate remedy at law to stop Metropolitan from repeating the
25
5
26 Metropolitan’s reliance on Karlsen v. Superior Court, 139 Cal. App. 4th 1526 (2006) is
misplaced. Met. MPA at 12. That case had nothing to do with a writ cause of action being
27 vacated. It addressed a situation in which the trial court exceeded its authority by granting a §
170.6 peremptory challenge so that a new trial could be held, even though the appellate court had
28 only remanded for the preparation of a statement of decision. Id. at 1529–30.
12
SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF &
OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT
Case Nos. CPF-10-510830 & CPF-12-512466
Preview
1 KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 2 jkeker@keker.com DAN JACKSON - # 216091 ELECTRONICALLY 3 djackson@keker.com WARREN A. BRAUNIG - # 243884 F I L E D Superior Court of California, 4 wbraunig@keker.com County of San Francisco NICHOLAS S. GOLDBERG - # 273614 5 ngoldberg@keker.com 07/16/2020 633 Battery Street Clerk of the Court BY: RONNIE OTERO 6 San Francisco, CA 94111-1809 Deputy Clerk Telephone: 415 391 5400 7 Facsimile: 415 397 7188 8 MARK J. HATTAM - # 173667 mhattam@sdcwa.org 9 General Counsel SAN DIEGO COUNTY WATER AUTHORITY 10 4677 Overland Avenue San Diego, CA 92123 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 Case No. CPF-10-510830 AUTHORITY, 18 Consolidated with: Case No. CPF-12-512466 Petitioner and Plaintiff, 19 SAN DIEGO COUNTY WATER v. AUTHORITY’S RESPONSIVE BRIEF 20 RE FORM OF JUDGMENT AND METROPOLITAN WATER DISTRICT OF OPPOSITION TO METROPOLITAN 21 SOUTHERN CALIFORNIA; ALL WATER DISTRICT OF SOUTHERN PERSONS INTERESTED IN THE CALIFORNIA’S MOTION FOR ENTRY 22 VALIDITY OF THE RATES ADOPTED BY OF JUDGMENT THE METROPOLITAN WATER DISTRICT 23 OF SOUTHERN CALIFORNIA ON Date: July 30, 2020 APRIL 13, 2010 TO BE EFFECTIVE Time: 1:30 p.m. 24 JANUARY 2011; and DOES 1-10, Dept.: 304 25 Respondents and Defendants. Judge: Hon. Anne-Christine Massullo 26 27 28 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466 1386887 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION ...............................................................................................................6 4 II. ARGUMENT .......................................................................................................................6 5 A. Metropolitan’s self-serving and unnecessary preamble invites error and should not be incorporated in the final judgment. ...................................................6 6 1. Metropolitan concedes that a preamble is not legally required. ..................6 7 2. If any preamble is adopted, it should be the Water Authority’s version. ....7 8 B. The Water Authority is entitled to judgment in its favor on Causes of 9 Action 1, 2, and 3 challenging Metropolitan’s unlawful and invalid rates. .............8 10 1. Metropolitan ignores controlling authority dictating that this Court enter judgment on causes of action based on a primary right analysis. .......9 11 2. Metropolitan’s attempt to carve up the Water Authority’s causes of 12 action by legal theory has twice been rejected by this Court.....................10 13 C. Because the Water Authority prevailed on its First Cause of Action, this Court must issue a peremptory writ of mandate. ...................................................11 14 1. The law requires a writ of mandate to issue. .............................................11 15 2. Metropolitan’s substantive attacks on the issuance of a writ have been 16 waived—but, in any event, are meritless. ..................................................12 17 a. Judgment on the second and third causes of action does not provide an “adequate remedy at law” ............................................12 18 b. The First Cause of Action is not moot. ..........................................14 19 D. The Water Authority is entitled to $28.7 million in damages, plus 20 prejudgment interest through the date of entry of this judgment. ..........................14 21 1. Statutory prejudgment interest runs through the date the Court enters final judgment post-remand. ......................................................................15 22 2. Metropolitan’s illusory “tender” did not halt the accrual of interest. ........16 23 E. The Water Authority is entitled to judgment on its Fifth Cause of Action 24 for Declaratory Relief re Metropolitan’s Rate Structure Integrity Clause. ............18 25 F. Metropolitan’s suggestion that “claims” were improperly omitted from the Water Authority’s [Proposed] Judgment is wrong. ...............................................19 26 III. CONCLUSION ..................................................................................................................20 27 28 2 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466 1386887 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 300 DeHaro St. Investors v. Dep’t of Housing & Cmty. Dev., 161 Cal. App. 4th 1240 (2008) ................................................................................................13 5 6 Am. Corp. Sec., Inc. v. Su, 220 Cal. App. 4th 38 (2013) ....................................................................................................13 7 California School Boards Ass’n v. California, 8 192 Cal. App. 4th 770 (2011) ..................................................................................................13 9 County of San Diego v. California, 164 Cal. App. 4th 580 (2008) ..................................................................................................13 10 DuPont Merck Pharm. Co. v. Superior Court, 11 78 Cal. App. 4th 562 (2000) ....................................................................................................14 12 Flores v. Dep’t of Corr. & Rehab., 13 224 Cal. App. 4th 199 (2014) ..................................................................................................13 14 Franklin Capital Corp. v. Wilson, 148 Cal. App. 4th 187 (2007) ..................................................................................................19 15 Holden v. City of San Diego, 16 43 Cal. App. 5th 404 (2019) ....................................................................................................12 17 Jackson v. Cty. of Los Angeles, 18 60 Cal. App. 4th 171 (1997) ....................................................................................................16 19 K.G. v. Meredith, 204 Cal. App. 4th 164 (2012) ..................................................................................................14 20 Karlsen v. Superior Court, 21 139 Cal. App. 4th 1526 (2006) ................................................................................................12 22 Kasem v. Dion-Kindem, 23 230 Cal. App. 4th 1395 (2014) ................................................................................................12 24 Kurwa v. Kislinger, 57 Cal. 4th 1097 (2013) .............................................................................................................9 25 Landsberg v. Scrabble Crossword Game Players, Inc., 26 802 F.2d 1193 (9th Cir. 1986) .................................................................................................15 27 Law Offices of Andrew L. Ellis v. Yang, 28 178 Cal. App. 4th 869 (2009) ..................................................................................................19 3 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466 1386887 1 Lazar v. Superior Court, 16 Cal. 2d 617 (1940) ................................................................................................................7 2 Leatherby Ins. Co. v. City of Tustin, 3 76 Cal. App. 3d 678 (1977) .....................................................................................................17 4 In re Marriage of Green, 5 143 Cal. App. 4th 1312 (2006) ................................................................................................16 6 Mission Ins. Grp., Inc. v. Merco Constr. Eng’rs, Inc., 147 Cal. App. 3d 1059 (1983) .................................................................................................17 7 Munoz v. City of Union City, 8 173 Cal. App. 4th 199 (2009) ..................................................................................................16 9 Mycogen Corp. v. Monsanto Co., 10 28 Cal. 4th 888 (2002) ...............................................................................................................9 11 Newhall Cty. Water Dist. v. Castaic Lake Water Ag., 243 Cal. App. 4th 1430 (2016) ................................................................................................13 12 People v. Landon White Bail Bonds, 13 234 Cal. App. 3d 66 (1991) .......................................................................................................7 14 Reid v. Superior Court, 15 44 Cal. App. 349 (1919) ............................................................................................................7 16 Reitano v. Yankwich, 38 Cal. 2d 1 (1951) ..................................................................................................................17 17 Richmond v. Dart Indus., Inc., 18 196 Cal. App. 3d 869 (1987) ...................................................................................................12 19 Rose v. Hecht, 20 94 Cal. App. 2d 662 (1949) .....................................................................................................17 21 San Diego Cty. Water Auth. v. Metroplitan Water Dist. of So. Cal., 12 Cal. App. 5th 1124 (2017) .......................................................................................... passim 22 Slater v. Blackwood, 23 15 Cal. 3d 791 (1975) ................................................................................................................9 24 Snapp v. State Farm Fire & Cas. Co., 60 Cal. 2d 816 (1964) ..............................................................................................................15 25 26 Tevis v. City & Cty. of San Francisco, 43 Cal. 2d 190 (1954) ..............................................................................................................13 27 Vernon v. Great W. Bank, 28 51 Cal. App. 4th 1007 (1996) ....................................................................................................6 4 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466 1386887 1 Villacres v. ABM Indus. Inc., 189 Cal. App. 4th 562 (2010) ....................................................................................................9 2 Younger v. Cty. of El Dorado, 3 5 Cal. 3d 480 (1971) ................................................................................................................14 4 Statutes 5 Civ. Code § 1485 ...........................................................................................................................16 6 Civ. Code § 3287 ...........................................................................................................................15 7 Civ. Code § 3289 ...........................................................................................................................15 8 Code Civ. Proc. § 577 ..........................................................................................................9, 11, 18 9 Code Civ. Proc. § 581 ....................................................................................................................19 10 11 Code Civ. Proc. §§ 680.010 et. seq ................................................................................................17 12 Code Civ. Proc. § 695.220 .............................................................................................................17 13 Code Civ. Proc. § 908 ....................................................................................................................17 14 Code Civ. Proc. § 1085 ..................................................................................................................14 15 Code Civ. Proc. § 1095 ..................................................................................................................11 16 Water Code § 1813 ..........................................................................................................................8 17 18 19 20 21 22 23 24 25 26 27 28 5 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466 1386887 1 I. INTRODUCTION 2 Metropolitan’s Motion for Entry of Judgment only confirms what the Water Authority 3 predicted in its Opening Brief: As these cases finally near completion, Metropolitan is trying to 4 relitigate the key issues that it lost over the last decade. In particular, Metropolitan takes 5 advantage of the fact that that this complex litigation is no longer before the same presiding trial 6 judge to raise arguments that the Court has already rejected—sometimes more than once. 7 Metropolitan also rides roughshod over the facts and the law in an effort to spin this Court’s and 8 the Court of Appeal’s prior rulings to its advantage. A final judgment need not, and should not, 9 attempt to encompass every collateral issue or legal theory raised over a case’s history—that is 10 what the case record is for. Rather, a final judgment should clearly set forth the disposition of 11 each cause of action, which is what the Water Authority’s [Proposed] Judgment does. Nor does 12 this Court need to review ten years of pleadings, transcripts, and orders to prepare an unnecessary 13 procedural preamble addressing issues that the Court has already ruled do not belong in the final 14 judgment. Rather, the Court should bring this lengthy litigation to a close by adopting the Water 15 Authority’s [Proposed] Judgment and issuing its [Proposed] Peremptory Writ of Mandate. Not 16 only is the Water Authority entitled to a writ as a matter of law, it is the only way to stop 17 Metropolitan from committing the same violations year after year. 1 18 II. ARGUMENT 19 A. Metropolitan’s self-serving and unnecessary preamble invites error and should not be incorporated in the final judgment. 20 1. Metropolitan concedes that a preamble is not legally required. 21 22 As set forth in the Water Authority’s Opening Brief, a preamble attempting to recount the 23 procedural history of this litigation is unnecessary because, as a matter of law, this Court’s final 24 judgment will incorporate the entire case record, merging any “earlier nonappealable orders . . . 25 into that judgment” for later review. Vernon v. Great W. Bank, 51 Cal. App. 4th 1007, 1013 26 (1996); June 17, 2020 SDCWA Opening Br. (“SDCWA Br.”) at 12–14. Metropolitan concedes 27 1 To assist the Court in its review of the competing proposed judgments, the Water Authority 28 attaches a chart at Appendix I comparing the parties’ respective positions. 6 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466 1386887 1 as much by acknowledging that (1) “there is no prescribed form for a judgment,” and, (2) when 2 necessary, the case record may be consulted to interpret a judgment. See June 17, 2020 Met. 3 MPA ISO Mot. for Entry of J. (“Met. MPA”) at 10–11. 4 The cases relied on by Metropolitan in support of its procedural preamble actually confirm 5 how unnecessary it is to include one. Together, they demonstrate that a case’s full record is often 6 reviewed to interpret a judgment’s “scope and effect.” People v. Landon White Bail Bonds, 234 7 Cal. App. 3d 66, 76 (1991); see also id. at 76–78 (reviewing case record to determine if correct 8 defendant had been named in a final judgment); Lazar v. Superior Court, 16 Cal. 2d 617, 620–22 9 (1940) (reviewing case record to determine if settlement agreement had been properly 10 incorporated in final divorce decree). In fact, the one case that Metropolitan cites for the 11 proposition that “a judgment may include a procedural history” is over a century old. Met. MPA 12 at 11 (emphasis added). But even that case, Reid v. Superior Court, 44 Cal. App. 349 (1919), 13 does not prove Metropolitan’s point because it addressed a situation in which the Penal Code 14 actually required the judgment to provide some factual background. Id. at 362. 15 Recognizing that the law does not require a preamble, Metropolitan pivots to arguing that, 16 given the related pending cases, this Court should characterize certain interlocutory rulings so that 17 “later courts” may determine what happened in the current litigation. Met. MPA at 12. But the 18 record is the record, and any reviewing court can and will examine it in full if necessary. 19 Paraphrasing this Court’s, or the Court of Appeal’s, decisions years after the fact will only make 20 the judgment susceptible to error. Indeed, in 2015, Metropolitan recognized this risk, arguing the 21 judgment should “incorporate by reference” prior decisions “rather than attempting to summarize 22 them so that the judgment is simpler and more accurate.” Nov. 18, 2015 Met. Br. at 1. 2 23 2. If any preamble is adopted, it should be the Water Authority’s version. 24 The Water Authority’s Opening Brief details the many ways in which Metropolitan’s 25 preamble mischaracterizes the record, conflates legal theories with causes of action, omits 26 2 27 Notably, this Court has routinely entered judgment without any preamble at all. See Ozer v. Zenz, No. CGC-08-477966, 2013 WL 7862064 (Sept. 20, 2013) (Massullo, J.); McNair v. City & 28 Cty. of San Francisco, No. CGC-09-489734, 2013 WL 12177792 (Apr. 12, 2013) (Massullo, J.). 7 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466 1386887 1 interlocutory orders adverse to Metropolitan, and misconstrues prior rulings. See SDCWA Br. at 2 12–14. Metropolitan’s Motion does not address these flaws; instead it compounds them. 3 While Metropolitan argues that its preamble provides “a full account of the case from 4 pleading through trial,” (Met. MPA at 12; see also id. at 1, 10), neither its Motion nor its 5 preamble cites to the trial court record pre-appeal. Metropolitan asserts its own characterizations 6 of the Court’s rulings. And Metropolitan is frequently wrong when it does so. For example, 7 Metropolitan frames this Court’s and the Court of Appeal’s rulings on the Water Stewardship 8 Rate as limited to a “substantial evidence” review of the administrative record. Met. Prop. J. at 9 3–4; Met. MPA at 7, 9–10. In fact, both courts ruled in the Water Authority’s favor based on the 10 Wheeling Statutes, which provide that “all relevant evidence” shall be considered, not just that 11 which is in the administrative record. Water Code § 1813; April 24, 2014 Statement of Decision 12 (“SOD I”) at 21; SDCWA v. MWD, 12 Cal. App. 5th 1124, 1144, 1151 (2017). Other examples of 13 Metropolitan’s mischaracterizations abound. See, e.g., SDCWA Br. at 12–13 (explaining how 14 Metropolitan mischaracterizes July 2, 2012 ruling on motion to strike); id. at 13 n.11 (same for 15 Jan. 4, 2012 ruling on demurrer); id. (same for Mar. 29, 2013 ruling on Proposition 26). 3 16 Because no procedural preamble is necessary, this Court should omit one from the final 17 judgment and avoid venturing into this briar patch altogether. If, however, the Court decides to 18 include a lengthy preamble, it should adopt the Water Authority’s alternative preamble, which— 19 unlike Metropolitan’s—is accurate, comprehensive, fair, and fully-cited. 4 20 B. The Water Authority is entitled to judgment in its favor on Causes of Action 21 1, 2, and 3 challenging Metropolitan’s unlawful and invalid rates. 22 The Court of Appeal affirmed that Metropolitan’s wheeling rate and the transportation 23 rates charged under the Exchange Agreement for 2011–2014 were unlawful and invalid because 24 the Water Stewardship Rate is “supply-related, not transportation-related” and “outside the scope 25 3 Metropolitan also tries to sneak this “administrative record” limitation into its proposed judgment on the Second Cause of Action. See Met. Proposed J. ¶ 6:12–16. For the reasons 26 discussed here and in the Water Authority’s Opening Brief, the Court should not incorporate this reference to the administrative record in the final judgment. See SDCWA Br. at 14, 16. 27 4 The Water Authority submitted its Alternative Preamble to [Proposed] Judgment as Exhibit A to 28 the June 17, 2020 Decl. of Warren A. Braunig ISO SDCWA’s Opening Br. (“Braunig Decl.”). 8 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466 1386887 1 of recoverable costs contemplated by the wheeling statutes.” SDCWA v. MWD, 12 Cal. App. 5th 2 at 1166. The Water Authority thus prevailed on its first three causes of action, which sought, in 3 turn, a writ of mandate, declaratory relief, and a determination of invalidity. Metropolitan 4 accepts, as it must, that judgment should be entered in the Water Authority’s favor “with respect 5 to” the Water Stewardship Rate. Met. MPA at 9, 15. It argues, however, that judgment should be 6 broken down, not by cause of action, but by legal theory and that judgment should then be entered 7 in its favor with respect to the State Water Project transportation costs and the other “claim[s] that 8 San Diego litigated under each cause of action.” Id. at 9, 11, 15, 22; Met. Proposed J. ¶¶ 1, 5, 7, 9 10. This argument contravenes binding legal authority and the Court’s own prior rulings. 10 1. Metropolitan ignores controlling authority dictating that this Court 11 enter judgment on causes of action based on a primary right analysis. 12 California law makes clear that a final judgment must dispose of “all the causes of action 13 pending between the parties.” Kurwa v. Kislinger, 57 Cal. 4th 1097, 1100 (2013) (emphasis 14 added); see also Code Civ. Proc. § 577. The California Supreme Court has further directed that 15 “the invasion of one primary right gives rise to a single cause of action,” which is “based upon the 16 harm suffered, as opposed to the particular theory asserted by the litigant.” Slater v. Blackwood, 17 15 Cal. 3d 791, 795 (1975); see also Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 904 18 (2002). “The most salient characteristic of a primary right is that it is indivisible.” Villacres v. 19 ABM Indus. Inc., 189 Cal. App. 4th 562, 576 (2010). 20 Accordingly, here, judgment must be entered in the Water Authority’s favor on its first 21 three causes of action because the same indivisible, primary right underlies each one—that is the 22 right to be free from Metropolitan’s unlawful and invalid wheeling and transportation rates. And 23 it is this very right that the Water Authority vindicated when the Court of Appeal affirmed that 24 the inclusion of the Water Stewardship Rate in Metropolitan’s wheeling and transportation rates 25 was unlawful and invalid. SDCWA v. MWD, 12 Cal. App. 5th at 1130. 26 The Water Authority obviously recognizes that the Court of Appeal reversed this Court’s 27 decision invalidating Metropolitan’s allocation of State Water Project transportation costs to the 28 System Access Rate and System Power Rate. See id. The Water Authority is not seeking to undo 9 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466 1386887 1 or ignore that outcome. It simply has no bearing on the ultimate resolution of each cause of 2 action in the judgment. The misallocation of State Water Project costs was just one legal theory 3 alleged by the Water Authority in support of its first three causes of action. The holding on State 4 Water Project costs does not change the fact that the Court of Appeal had a separate basis to rule 5 Metropolitan’s wheeling and transportation rates unlawful and invalid. The only question now is 6 whether the Water Authority prevailed on its indivisible primary right to be free from 7 Metropolitan’s unlawful and invalid wheeling and transportation rates, and the answer is “yes.” 8 2. Metropolitan’s attempt to carve up the Water Authority’s causes of 9 action by legal theory has twice been rejected by this Court. 10 In its Motion, Metropolitan does not just ignore California law; it also disregards this 11 Court’s rulings that the judgment should not carve up causes of action by underlying legal theory. 12 Metropolitan contends that the Water Authority “could have pleaded” its “various claims” 13 regarding the Water Stewardship Rate, State Water Project costs, Proposition 26, and dry year 14 peaking “as separate causes of action.” Met. MPA at 11–12; id. at 15–16. It maintains that the 15 Water Authority’s “election to pursue the claims in a single cause of action at the pleading stage 16 should not permit [the Water Authority] to omit from the judgment its losses.” Id. at 16. 17 Metropolitan has twice made this same argument and lost. It should lose once more. 18 First, in connection with a 2013 motion for judgment on the pleadings, the Court rebuffed 19 Metropolitan’s effort to divide up, and dispose of, the Water Authority’s causes of action by legal 20 theory. See Sept. 20, 2013 Order Denying Met’s MJOP at 2. The Court denied Metropolitan’s 21 attack on the Water Authority’s “theory of recovery based on Proposition 26” because it would 22 not have resulted in the adjudication of “an entire cause of action.” Id. The Court further ruled: 23 Sometimes, plaintiffs really do combine in a single denominated claim two causes of action in th[e] “primary right” sense; that is, their draftsmanship is just that bad. 24 The bad draftsmanship is no defense, and there is nothing wrong in granting judgment on one of those “causes of action.” But Metropolitan does not suggest, 25 nor could it, that its motion disposes of a cause of action in this sense. 26 Id. (emphasis added). 27 Then, in deciding the form of the Original Judgment, the Court overruled the exact same 28 legal theory-by-legal theory approach that Metropolitan pushes this Court to adopt now. It 10 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466 1386887 1 explicitly rejected Metropolitan’s argument that the “judgment ought to list the claims on which it 2 prevailed,” and held that, under Code of Civil Procedure § 577, the Water Authority “is correct to 3 list the causes of action only.” Oct. 30, 2015 Order on Post Trial Issues (“Post-Trial Order”) at 3. 4 Metropolitan does not even mention—much less address—these prior rulings. This Court 5 was right then, and it should not contradict its prior rulings now. Both sides have won and lost 6 issues in this decade-long litigation, but that is beside the point when it comes to issuing a final 7 judgment on each cause of action. Judgment should be entered for the Water Authority on the 8 first three causes of action because it prevailed on those causes of action. 9 C. Because the Water Authority prevailed on its First Cause of Action, this Court must issue a peremptory writ of mandate. 10 11 1. The law requires a writ of mandate to issue. 12 It is undisputed that where, as here, judgment in a writ of mandate action is “given for the 13 applicant, the applicant may recover the damages which the applicant has sustained . . . and a 14 peremptory mandate must also be awarded without delay.” Code Civ. Proc. § 1095 (emphasis 15 added). Metropolitan has no meaningful response to this legal reality. 16 Indeed, Metropolitan admits all of the factual predicates for issuance of a writ. First, 17 Metropolitan admits that one of the theories underlying the Water Authority’s writ cause of action 18 was its challenge to the inclusion of the Water Stewardship Rate in Metropolitan’s wheeling and 19 transportation rates. See Met. MPA at 11, 13–14. Second, Metropolitan admits that judgment 20 should be entered in the Water Authority’s favor “with respect to” this challenge. Id. at 15. And 21 third, Metropolitan admits that the Water Authority is seeking “a writ on the only part of its rate 22 challenges that it won—Metropolitan’s unlawful inclusion” of the Water Stewardship Rate. Id. at 23 13. Thus, even by Metropolitan’s own fragmented interpretation of the Court of Appeal’s 24 Opinion, the Water Authority prevailed on the Water Stewardship Rate theory underlying its First 25 Cause of Action. Section 1095 therefore directs that a writ “must” issue “without delay.” 26 The Court of Appeal’s Opinion does not in any way preclude a writ. Metropolitan argues 27 that, because the Court of Appeal remanded “without any instruction to issue a new writ,” the 28 issuance of a writ “would exceed the scope of the Court of Appeal’s decision.” Met. MPA at 12. 11 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466 1386887 1 Nonsense. The Court of Appeal’s remand instructed this Court to make additional decisions and 2 conduct further “proceedings consistent with the views expressed in th[e] opinion.” SDCWA v. 3 MWD, 12 Cal. App. 5th at 1166. Given that the Court of Appeal affirmed this Court’s ruling on 4 the First Cause of Action with respect to the Water Stewardship Rate, issuance of a writ is not 5 merely “consistent with” the appellate ruling; it is mandated by that ruling. Beyond summarily 6 vacating the Original Writ in accordance with its rulings on the Water Authority’s rate challenges, 7 the Court of Appeal was otherwise silent as to the writ. See id. at 1129–30, 1166. The Court of 8 Appeal neither held nor suggested that the Water Authority is not entitled to the writ that the 9 Legislature has mandated. 5 10 2. Metropolitan’s substantive attacks on the issuance of a writ have been 11 waived—but, in any event, are meritless. 12 In its Motion, Metropolitan advances two arguments that it has never made in a decade of 13 litigation. First, Metropolitan argues that a writ is unnecessary because the “proposed judgment 14 already includes an adequate remedy.” Met. MPA at 12. Second, Metropolitan argues that the 15 Water Authority’s “mandamus claim is moot.” Id. Both arguments go to the question of whether 16 the Original Writ should have issued in the first place, and Metropolitan’s failure to raise either 17 argument then—or with the Court of Appeal—renders them forfeited and waived. See Holden v. 18 City of San Diego, 43 Cal. App. 5th 404, 418 (2019) (ruling plaintiff had “waived or forfeited” 19 argument “both in the trial court and on appeal” by failing to raise it); see also Kasem v. Dion- 20 Kindem, 230 Cal. App. 4th 1395, 1402 (2014); Richmond v. Dart Indus., Inc., 196 Cal. App. 3d 21 869, 879 (1987). But, even if these arguments were not procedurally foreclosed, they are wrong. 22 a. Judgment on the second and third causes of action does not provide an “adequate remedy at law.” 23 In previously awarding the Water Authority writ relief, this Court recognized that the 24 Water Authority had no other adequate remedy at law to stop Metropolitan from repeating the 25 5 26 Metropolitan’s reliance on Karlsen v. Superior Court, 139 Cal. App. 4th 1526 (2006) is misplaced. Met. MPA at 12. That case had nothing to do with a writ cause of action being 27 vacated. It addressed a situation in which the trial court exceeded its authority by granting a § 170.6 peremptory challenge so that a new trial could be held, even though the appellate court had 28 only remanded for the preparation of a statement of decision. Id. at 1529–30. 12 SAN DIEGO COUNTY WATER AUTHORITY’S RESPONSIVE BRIEF & OPPOSITION TO METROPOLITAN’S MOTION FOR ENTRY OF JUDGMENT Case Nos. CPF-10-510830 & CPF-12-512466