Resolution No. 2012-103RESOLUTION NO. 2012-103
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
TOLLING AGREEMENT BY AND BETWEEN THE CITY OF VERNON
AND THE WATER REPLENISHMENT DISTRICT OF SOUTHERN
CALIFORNIA
WHEREAS, the Water Replenishment District of Southern
California ("WRD") is a water replenishment district organized and
existing pursuant to the Water Replenishment District Act, Water Code
§§ 60000 et seq., as amended, and manages the groundwater in the
Central and West Coast Groundwater Basins; and
WHEREAS, pursuant to the Water Replenishment District Act,
WRD is authorized to collect a replenishment assessment (the
"Assessments") from persons and entities who produce groundwater from
either the Central Groundwater Basin or the West Coast Groundwater
Basin in Los Angeles County; and
WHEREAS, the City of Vernon is situated in the Central
Groundwater Basin and purveys potable water to most industries located
within its boundaries; and
WHEREAS, in 2010 the cities of Downey, Cerritos and Signal
Hill (the "Cities") filed a petition challenging the Assessments
imposed since 2007 in accordance with the provisions of Proposition 218
which requires local governments to have a vote of affected property
owners for any new or increased assessment before it can be levied; and
WHEREAS, on April 25, 2011 the Court sided with the Cities
and issued an order invalidating the assessments for the years 2007
through 2010; and
WHEREAS, pursuant to the,Reporter's Transcript of
Proceedings dated April 25, 2011, the WRD does not have to comply with
the judgment until the damages phase of the case is over; and
WHEREAS, by memorandum dated June 6, 2012, the Director of
Community Services & Water has recommended the City enter into a
Tolling Agreement with WRD to preserve its potential refund claim
without filing litigation and/or stop paying the replenishment
assessment at this time.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The. City Council of the City of Vernon does
hereby find and determine that the recitals contained hereinabove
are true and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Tolling Agreement (the "Agreement") with the Water
Replenishment District of Southern California, in substantially the
same form as the copy which is attached hereto as Exhibit A.
SECTION 3 The City Council of the City of Vernon hereby.
authorizes the Mayor or Mayor Pro-Tem to execute the Agreement for, and
on behalf of, the City of Vernon and the City Clerk, or Deputy City
Clerk, is hereby authorized to attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
instructs the City Administrator, or his designee, to take whatever
actions are deemed necessary or desirable for the purpose of
implementing and carrying out the purposes of this resolution and the
transactions herein approved or authorized.
SECTION 5: The City Council of the City of Vernon hereby
directs the City Clerk, or the City Clerk's designee, to send a fully
executed Agreement to the WRD.
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SECTION 6: The City Clerk of the City of Vernon shall
certify to the passage, approval and adoption of this resolution, and
the City Clerk of the City of Vernon shall cause this resolution and
the City Clerk's certification to be entered.in the File of Resolutions
of the Council of this City.
APPROVED AND ADOPTED this 19th day of June,n2012.
�K
Name: William J. Davis
Title: 14a; 0 / Mayor Pro-Tem
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STATE OF CALIFORNIA )
ss
COUNTY OF LOS ANGELES )
I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution
No. 2012-103, was duly passed, approved and adopted by the City Council
of the City of Vernon at a regular meeting of the City Council duly
held on Tuesday, June 19, 2012, and thereafter was duly signed by the
Mayor or Mayor Pro-Tem of the City of Vernon.
Executed this day of June, 2 12, at Vernon, California.
illard am guchi ity Clerk
(SEAL)
EXHIBIT A
TOLLING AGREEMENT BETWEEN. THE CITY OF VERNON AND THE
WATER REPLENISHMENT DISTRICT OF SOUTHERN CALIFORNIA
THIS AGREEMENT is made and entered into as of July 1. 2012, ("Effective Date"), by and
between the City of Vernon, a California charter City and California municipal corporation
("City'), and the Water Replenishment District of Southern California ("District"). City and
District are collectively referred to herein as the "Parties."
RECITALS
1. City desires to enter into a Tolling Agreement with the District to preserve the
City's potential refund claim without filing litigation and/or stop paying the replenishment
assessment at this time.
NOW, THEREFORE, the Parties agree as follows:
Section A. The District is a water replenishment district organized and existing
pursuant to the Water Replenishment District Act, California Water Code Section 60000 et seq.,
and manages the groundwater in the Central and West Coast Groundwater Basins. Pursuant to
the Replenishment District Act; the District is authorized to collect a replenishment assessment
("Assessment") from persons and entities who produce groundwater from either the Central
Groundwater Basin ("Central Basin") or the West Coast Groundwater Basin ("West Basin") in
Los Angeles County, which Assessment takes effect on July 15t each year.
Section B. The City produced groundwater from the Central Basin.and/or West Basin
during the years from 2007 to 2011 and paid the Assessment to the District with respect to that
groundwater production, and continues to produce such groundwater.
Section C. On or about August 24, 2010, the Cities of Downey, Signal Hill and
Cerritos (the "Petitioners") filed the action entitled City of Cerritos, etc., et al. v. Water
Replenishment District of Southern California, et al., Los Angeles County Superior Court,
Case No. BS128136 (the "Downey Prop 218 Lawsuit"). In the lawsuit, the Petitioners claim that
Article XIII-D of the California Constitution ("Prop 218") applied to the District's adoption of
Assessments for the period from July 1, 2006 to July 1, 2010. On or about April 25, 2010, the
Los Angeles Superior Court entered an order ruling that Prop 218 applied to the District's
adoption of those Assessments. However, final judgment has not been entered because
Petitioners are prosecuting a cause of action for a monetary refund of the Assessments that
they paid to the District's during the time period alleged in their complaint ("Petitioner's Refund
Claim").
Section D. On or about May 20, 2011, Central Basin Municipal Water District
("CBMW D") filed the action entitled Central Basin Municipal Water District v. Water
Replenishment District of Southern California, et al., Los Angeles County Superior Court,
Case No. BS132202 (the "CBMWD Prop 218 Lawsuit'). In that action, CBMWD alleges, among
other causes of action, claims seeking a writ of mandamus and declaratory relief on the ground
that Prop 218 applies to the District's adoption of the Assessment for the period from
July 1, 2011 to June 30, 2012.
Section E. On or about July 5, 2011, the District filed the action entitled Water
Replenishment District of Southern California v. All Interested Persons, et al., Los Angeles
County Superior Court, Case No. BC464772 (the 'WRD Validation Action"). In that action, the
District seeks a validation pursuant to California Code of Civil Procedure Section 860 that its
adoption of the Assessment for the period from July 1, 2011 to June 30, 2012, complied with all
applicable laws, including Prop 218.
Section F. On or about July 5, 2011, the District filed the action entitled Water
Replenishment District of Southern California v. City of Cerritos, et al., Los Angeles County
Superior Court, Case No. BC464773 (the 'WRD Declaratory Relief Action"). In that lawsuit,
WRD seeks a declaratory judgment that the District's adoption of the Assessment for the period
from July 1, 2011 to June 30, 2012 complied with all applicable laws, including Prop 218.
Section G. Certain persons and entities who produce groundwater from either the
Central Basin and/or the West Basin have informed the District that (i) if a final judgment is
entered in any of the actions described in Sections I-C through F, above, to the effect that Prop
218 applies to the District's adoption of the Assessment, they may seek a refund of the
Assessments paid to the District since July 1, 2007, to the extent permitted by law, (ii) they wish
to reserve their right to assert a claim for a monetary refund of those Assessments paid to the
District since July 1, 2007 (the "Potential Refund Claim"), and/or (iii) they may not pay any more
Assessments until the actions described in Section I-C through F, above, are resolved and/or
join in one or more of those actions.
Section H. In order for the City to preserve its Potential Refund Claim without filing
litigation and/or stop paying the Assessment at this time, as well as to limit the Parties' litigation
costs, the District and the City enter into this Agreement.
TERMS OF THE AGREEMENT
For valuable consideration, including the covenants provided in this Agreement, the receipt of
which is duly acknowledged by the Parties, the District and the City agree as follows:
A. With respect to Assessments paid by the City to the District during the period
from one year prior to May 20, 2011, through the Termination (as that term is defined in Section
II-G of this Agreement) of this Agreement (the 'Tolling Period"), the District and the City agree
that any and all statues of limitation applicable to the City's Potential Refund Claim for those
Assessments, including but not limited to, the one-year limitation period provided under Section
911.2 of the California Government Code, shall be tolled until this Agreement is terminated.
Provided that this Agreement is not terminated prior to entry of a Final Judgment (as defined in
Section II-G below) in the Downey Prop 218 Lawsuit, the 'Tolling Period" shall be extended to
one year before August 24, 2010, if a Final Judgment, as defined in Section II-G below, is
entered on Petitioner's Refund Claim in the Downey Prop 218 lawsuit to the effect that
Petitioners are entitled to a refund Assessment they paid to the District beginning on
August 24, 2009). With respect to Assessments paid by the City to the District during the period
of July 1, 2007, to the commencement of the Tolling Period, the District and the City reserve
their respective rights and defenses as to whether the City's Potential Refund Claim for those
Assessments is barred by the applicable statues of limitation. It is the intent and understanding
of the Parties that by entering into this Agreement, the City is securing, and the District is
agreeing to, the application of the one-year limitation period provided in Government Code
Section 911.2 based on the date of the filing of the (i) CBMWD Prop 218 Lawsuit, which,
therefore, provides the City with the same rights under Government Code Section 911.2 as
claimed by the petitioner and its purported class in the CBMWD Prop 218 Lawsuit, or (ii)
Downey Prop 218 Lawsuit if the Tolling Period is extended as provided in this Section II -A.
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B. In any litigation commenced by the City on its Potential Refund Claim for
Assessments paid to the District since July 1, 2007, the District shall not assert any defense
based on waiver, laches, or estoppel attributable to the City's payment of the Assessment and
forbearance from filing litigation during the Tolling Period. Except for the defenses specified in
the first sentences of Sections II -A and II-B of this Agreement, the District reserves all of its
defenses applicable to the City's Potential Refund Claim, including but not limited to the amount
of any refund that may be owing to the City.
C. Until this Agreement is terminated pursuant to the provisions of Section II-G
below, the City shall continue to pay the Assessment to the District based on the City's
production and in accordance with the Replenishment Act.
D. Until this Agreement is terminated pursuant to Section II-G below, the City shall
(i) not join as a party to, or intervene in, or provide funding, directly or indirectly, for either the
Downey Prop 218 Lawsuit or the CBMWD Prop 218 Lawsuit, and (ii) not take any position in
opposition to the District in either the WRD Validation Action or the WRD Declaratory Relief
Action. Until this Agreement is terminated pursuant to Section II-G below, neither the City nor
the District shall commence litigation against the other Party respect to the City's Potential
Refund Claim.
E. If the City seeks to commence litigation on its Potential Refund Claim after the
Termination of this Agreement, the City shall first file an administrative claim with the District
pursuant to the District's claim procedures provided in its Administrative Code (the "District's
Claims Procedures") and in accordance with the Government Claim Act (California Government
Code Section 900 et se . , including but not limited to Government Code Section 935. (A copy
of the District's Claims Procedures in effect as of the Effective Date of this Agreement is
attached hereto as Exhibit A). The City shall not file any lawsuit seeking a refund of the
Assessments until the City files such an administrative claim with the District and the District has
acted on that claim in accordance with the provisions of the District's Claims Procedures and
the applicable provisions of the Government Claims Act. Except as otherwise provided in this
Agreement, the City reserves the rights with regard to any claim or cause of action, including its
Potential Refund Claim, whether against the District or against any third parry.
F. This Agreement shall be modified to incorporate any more favorable provision in
any tolling agreement that the District may hereinafter enter into with another person or entity
who produces groundwater from either the Central or West Basin with respect to that
groundwater producer's claim for a monetary refund of the Assessment based on a claims that
District failed to comply with Prop 218.
G. This Agreement shall terminate upon the earlier of: (i) thirty (30) calendar days
after either the District or the City provides written notice to the other Party that it is exercising
the right to unilaterally terminate the Agreement or (ii) a "Final Judgment" is entered in
connection with any of the lawsuits described in Section I-C through F, above (the "Subject
Lawsuits") that determines the Prop 218 applies to the District's adoption of the Assessment.
For purposes of this Agreement, the term "Final Judgment' is defined as the thirtieth (301")
calendar day after the latter of (i) the last day by which a party to any of the Subject Lawsuits
was required to file a Notice of Appeal of a judgment entered in a Subject Lawsuit and no such
Notice of Appeal is'filed (as of the Effective Date of this Agreement, Rule 8.104 of the Cal.
Rules of Court governs the time by which a Notice of Appeal must be filed, and a copy of Rule.
8:104 is provided in Exhibit B hereto); (ii) the date by when a decision by a Court of Appeal in a
case where a Notice of Appeal is filed by a party to a Subject Lawsuit becomes final in
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accordance with applicable law and no petition for review is filed with the California Supreme
Court (as of the Effective Date, Rule 8.264 of the. Cal. Rules of Court governs the finality of
decisions by California courts of appeal, and a copy if Rule 8.264 is provided in Exhibit B
hereto); or (iii) the date by when a decision by the California Supreme Court on any petition for
review that is filed by a party to a Subject Lawsuit becomes final (as of the Effective Date of this
Agreement, Rule 8.532 of the Cal. Rules of Court governs the finality of decisions by the
California Supreme Court, and a copy of Rule 8.532 is provided in Exhibit B hereto). The
parties waive any right to assert, at any time, that this Tolling Agreement has itself been
rendered unenforceable by operation of law or by passage of time. Upon termination of this
Agreement, the parties shall be restored to the same status they occupied and rights they
enjoyed as of the Effective Date.
H. None of the statements or promises contained in this Agreement shall be
construed as any admission of any kind concerning the subject matter of this Agreement.
Moreover, this Agreement may not be offered in any court or legal proceedings by any Party for
any purpose except (1) to prove the Tolling Period for commencement of litigation or (2) to
resolve a dispute between the Parties regarding the interpretation or enforcement of this
Agreement.
I. The Parties to this Agreement represent that the signatories below have the
actual authority to bind their respective Parties to the terms of this Agreement, and acknowledge
that each Party to this Agreement has relied upon that apparent authority in entering this
Agreement.
J. This Agreement shall be construed and governed. exclusively by the laws of the
State of California.
K. Inasmuch as this Agreement is the product of joint drafting and negotiation
between the Parties, it is agreed and understood that the general rule that ambiguities are to be
construed against the drafter shall not apply to this Agreement. In the event that any language
of this Agreement is determined to be ambiguous, each Party shall have an opportunity to
present evidence as to the actual intent of the Parties with respect to any such ambiguous
language.
L. This Agreement may be executed in one or more counterparts, including
facsimile copies, each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
M. This Agreement constitutes the entire understanding between the Parties with
respect to the matters set forth herein. Except as otherwise provided herein, this Agreement is
intended to be the final expression of the Agreement between the Parties with respect to the
subject matter of this Agreement and supersedes and fully and completely extinguishes any
prior understandings or agreements by or between the Parties, whether oral or in writing.
N. Any amendment or modification of this Agreement must be in writing and signed
by the Parties. Any amendment or modification not made in this manner shall have no force or
effect.
O. This Agreement shall bind and inure to the benefit of the respective successors
and assigns of each Party.
P. Delivery of any notices required under this Agreement shall be provided, and
deemed complete, upon facsimile transmission, by deposit in the overnight mail, or upon actual
hand delivery upon both the Party and its attorney as follows:
To the Citv:
City of Vernon
Willard G. Yamaguchi, Chief Deputy City Attorney
4305 Santa Fe Avenue
Vernon, CA 90058
Telephone: (323) 583-8811
Facsimile: (323) 826-1438
With a copy to:
City of Vernon
Kevin Wilson, Director of Community Services & Water
4305 Santa Fe Avenue
Vernon, CA 90058
Telephone: (323) 583-8811
Facsimile: (323) 826-1435
To the District:
Mr. Robb Whitaker
General Manager
Water Replenishment District of Southern California
4040 Paramount Boulevard
Lakewood, CA 90712
Telephone: (562) 921-5521
Facsimile: (562) 921-6101
With a copy to:
Edward J. Casey, Esq.
Alston & Bird LLP
333 South Hope Street, 16'" Floor
Los Angeles, CA 90071
Telephone: (213) 576-1000
Facsimile: (213) 576-1100
[Signatures Begin on Next Page].
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IN WITNESS WHEREOF, the Parties have signed this Agreement as of the date stated
in the introductory clause.
City of Vernon, a California charter City
and California municipal corporation
M
Mayor / Mayor Pro-Tem
ATTEST:
Willard G. Yamaguchi, City Clerk
APPROVED AS TO FORM:
Willard G. Yamaguchi,
Chief Deputy City Attorney
WATER REPLENISHMENT DISTRICT OF
SOUTHERN CALIFORNIA
By:
Name: Albert Robles
Its: President. Board of Directors
By:
Name: Robert Katherman
Its: Secretary. Board of Directors
APPROVED AS TO FORM:
Edward J. Casey
Attorneys for Water Replenishment District of
Southern California
Q
EXHIBIT A
Rule 8.100 APPELLATE RULES
Information Statement (form APP-004) and a notice
that the statement must be filed within 10 days.
(2) Within 10 days after the clerk malls the notice
required by (1), the appellant must serve and file in
the reviewing court a completed Civil Case Infonna-
tion Statement, attaching a copy of the judgment or
appealed order that shows the date it was entered.
(3) If the appellant fails to timely rile a case
information statement under (2), the reviewingcourt
clerk must notify the appellant by mail that the
appellant must file the statement within 15 days after
the clerk's notice is mailed and that if the appellant
fails to comply, the court may either impose monetary
sanctions or dismiss the appeal. If the appellant fails
to file the statement as specified in the notice, the
court may impose the sanctions specified in the
notice.
(Formerly Rule 1, adopted, off. Jan, 1, 2002. As amend-
ed, eff. Jan. 1, 2003; Aug. 17, 2003. Renumbered Rule
8.100 and amended, eff. Jan. 1, 2007. As amended, eff.
Jan. 1, 2008; July 1, 2009.)
Advisory Committee Comment
Subdivision (a). In. subdivision (a)(1), the refer-
ence to "judgment" is intended to include part of a
judgment. Subdivision (a)(1) includes an explicit
reference to "appealable order" to ensure that liti-
gants do not overlook the applicabilityof this rule to
such orders.
Subdivision (b). In the interest of consistency,
subdivision (b)(1) recommends a preferred word-
ing —"Clerk, Court of Appeal" —for the name of the
payee of checks or money orders for the filing fee.
The provision is not mandatory.
Subdivision (c)(2). This subdivision addresses the
content of a clerk's notice that a check for the filing
fee has been dishonored or that the reviewing court
has received a notice of appeal without the tiling fee,
a certificate of cash payment, or an application for, or
order granting, a fee waiver. Rule 8.26(f) addresses
what an appellant must do when a fee waiver
application is denied.
Subdivision (a). Under subdivision (e)(2), a notifi-
cation of the filing of a notice of appeal must show
the date that the clerk mailed the document: This
provision is intended to establish the date when the
20-day extension of the time to file a cross -appeal
under rule 8.108(e) begins to run. -
Subdivision (e)(1) requires the clerk to mail a
notification of the filing of the notice of appeal to the
appellant's attorney or to the appellant if unrepre-
sented Knowledge of the date of that notification
allows the appellant's attorney or the appellant to
track the running of the 20-day extension of time to
(ilea cross -appeal under rate 8. 108(e).. -
OFFICIAL FORMS
Mandatory and optional Forms adopted and
approved by the Judicial Council are set out in
West's California Judicial Council Forms Pam-
phlet.
RULE 8.104. TIME TO APPEAL
(a) Normal time
Unless a statute or rule 8.108 provides otherwise, a
notice of appeal must be filed on or before the earliest
of:
(1) 60 days after the superior court clerk serves the
party filing -the -notice of appeal with a document
entitled "Notice of Entry" of judgment or a file -
stamped copy of the judgment, showing the date
either was served;
(2) 60 days after the party filing the,notice-of
appeal serves or is served by a party with a document
entitled "Notice of Entry" of judgment or a file -
stamped copy of the judgment, accompanied by proof
of service; or
(3) 180 days after entry of judgment.
(4) Service under (1) and (2) may be by any
method permitted- by the Code of Civil Procedure,
Including electronic service when permitted under
Code of Civil Procedure section 1010.6 and rules
2.250-2.261,
(b) No extension of time; late notice of appeal
Except as provided in rule 8.66, no court may extend
the time to file a notice of appeal. If a notice of appeal
is filed. late, the reviewing court must dismiss the appeal.
(c) Periodic payment of judgments against public
entities - -
If a public entity elects, under Government Code
section 984 and. rule 3.1804, to pay a judgment in
periodic payments, subdivision (a) of this rule governs.
the time to appeal from that judgment but the periods
prescribed in (a)(1) and (2) are each 90 days.
(d) What constitutes entry
For purposes of this rule:
(1) The entry date of a judgment is the datethe
judgment is filed -under Code of Civil Procedure
section 668.5, or the date it is entered in the judgment
book.
(2) The entry date of an appealable order that is
entered in the minutes is the date it is entered in the
permanent minutes. But if the minute order directs
that a written order be prepared, the entry date is the
date the signed order is filed; a written order
prepared under rule 3.1312 or similar local rule is not
such an order prepared by direction of a minute
order.
(3) The entry date of an appealable order that is
not entered in Ore minutes is the date the signed
order is filed.
(4) The entry dateofa decree of distribution in a
probate proceeding is the date it is entered at length in the judgment book or other permanent court
record.
(e) Premature notice of appeal
494
(1) A notice
rendered but b
treated as filed
(2) The revit
appeal filed aft,
its intended rul
ment, as filed i
(f) Appealable -
As used in (a
appealable order
order.
(Formerly Rule 2,
ed, eff. Jan. 1,
amended, eff. Jar
2010.)
Ads
Subdivision
tice of entry a
must show th
document. T
that the 60-
begins to run.
Subdivision
judgment (or
a party be a -
proof of sery
permit under
though the ;
requires pros
parties, the r,
the. serious c
notice of app
Subdivisio
concerning t
inmates anc
Subdivision
holds that t
excuse a late
lescent Hasp
674; Estate
In crimin
appeal is gc
of "consttuc
10 CaDd T.
Mandell
approved
West's Ca
phlet.
RULE 8.1
(a) Extensi
This rule o
otherwise pr
shorten -the
appeal stetec
provided in t
8.104(a) gow
(b) Motioi
SUPREME[ COURT & COURTS OF APPEAL Rule 8.108
wise, it
earliest
ves the
,ument
a file-
ie date
nice of
cument
a file-
ry proof
by any
icedure,
1 under
id rules
d
y extend
.f appeal
;appeal
i public
at Code
;went in
:governs
periods
date the
'rocedure
judgment
er that is
-ed in the
er directs
late is the
an order
Me is not
a minute
ler thatis
he signed
,ution in a
I at length
tent court
(1) A notice of appeal filed after judgment is
rendered but before it is entered - is valid and, is
treated as filed immediately after entry of judgment.
(2) The reviewing court may treat a notice of
appeal filed after the superior court has announced
its intended ruling, but before it has rendered judg-
ment, as filed immediately after entryof judgment.
(f) Appealable order
As used in (a) and (e), "judgment" includes an
appealable order if the appeal is frdm an appealable
order.
Mannerly Rule 2, adopted ef): Jan, 1, 2002. As amend-
ed, eff.', Jan. 1; 2005. Renumbered Rule 8.104 and
amended efjf. Jan,. 1, 2007 As amended eft. Jan. 1,.
2010.)
Advisory Committee Comment
Subdivision (a). Under subdivision (a)(1), a no-
tice of entry of judgment (or a copy of the judgment)
must show the date on which the clerk served the
document. The proof of service establishes the date
that the 60-day period under subdivision` (a)(1)
begins to run.
Subdivision (a)(2) requires that a notice of entry of
judgment (or a copy of the judgment) served by or out
a party be accompanied by proof of service.. The
proof of service establishes the date that the 60-day
period under subdivision (a)(2) begins to run. Al.
though .the general rule on service (rule 8.25(a))
requires proof of service for all documents served by
parties, the requirement is reiterated herebecause of
the serious consequence of a failure to file a timely
notice of appeal (see subd. (e)).
Subdivision (b). See rule 8.25(b)(5) for provisions
concerning the timeliness of documents mailed by
inmates and patients from custodial institutions.
Subdivision (b) is declarative ofthecase law, which
holds that the reviewing court lacks jurisdiction to
excuse a late -filed notice of appeal. (Hollister Comm.
lcscent Hmp., Inc. Y. Rico.(1975) 15 Ca1.3d 660, 666-
674;-Estate of Hanley (1943) 23 Cel.2d 120, 122-124.)
In criminal cases, the time for filing a notice of
appeal is governed by rule 8.308 and bythe ease law
of"constructive Oling." (Scc, c.g.,1n w..Bmoif (1973)
10 Ca1.3d 72.).
OFFICIAL FORMS
Mandaloiy and optional Forms adopted and
approved by the Judicial Council are set out in
West's California Judicial Council Ponns pant-
phlet.
ROLL+ S.108. EXTENDINC THE TIME TO APPEAL
(a) L"xtension of time
This rule operates only to extend the time to appeal
otherwise prescribed in rule 8.104(a); it does not
shorten the time to appeal, if the normal time to
appeal stated in rule 8.104(a) is longer than.the time
provided in this rule, the time to appeal stated in rule
&I04(a).governs.
(b) Motion for new trial
495
If any party serves and files a valid notice of intention
to move for a new trial, the time to appeal from the
judgment is extended for all parties as follows:
(1) If the motion is denied, until the earliest of:
(A) 30 days after the superior court clerk mails,
or a party serves, an order denying the motion or a
notice of entry of that order;
(B) 30 days after denial of the motion by opera-
tion of law; or
(C) 180 days after entry of judgment.
(2) If any party serves an acceptance of a condi-
tionally ordered additur or remittitur of damages
pursuant to a trial courtfinding of excessive or
inadequate damages, until 30 days after the date the
party serves the acceptance.
(c) Motion to vacate judgment
If, within the time prescribed by rule 8.104 to appeal
from the judgment, any party serves and files a valid
notice of intention- to -move—or a valid motion —to
vacate the judgment, the time to appeal from' the
judgment is extended for all parties until the earliest of:
(1) 30 days after the superior court clerk mails, or
a party serves, an' order denying the motion or a
notice of entry of that order;
(2) 90 days after the first notice of intention to
move--ormotion—is riled; or
(3) 180 days after entry of judgment.
(d) Motion for judgment notwithstanding the verdict
(1) If any party serves and files a valid motion for
judgment notwithstanding the verdict and the motion
is denied, the time to appeal from the judgment is
extended for all parties until the earliest of:
(A) 30 days after the superior court clerk mails,
or a party serves, an order denying the motion or a
notice. of entry of that order;
(B) 30 days after denial of the motion by opera-
tion of law; or
(C) 180 days after entry of judgment.
(2) Unless. extended. by (e)(2), the time to appeal
from an order denying a motion for judgment not-
withstanding the verdict is governed by rule 8.104.
(a) Motion to reconsider appealable order
If any party serves and files a valid motion to
reconsider an appealable order under Code of Civil
Procedure section 1008, subdivision (a), the time to
appeal from that order is extended for all parties until
the earliest of:
(1) 30 days after the superior court clerk [nails, or
a party, serves, an order denying the motion or a
notice of entry of that order;
(2) 90 days after the first motion to reconsider is
filed; or
(3) 180 days after entry of the appealable order.
(0 Cross -appeal
Rule
has expired to file all briefs and papers, including any
supplemental brief permitted by the court.
(2) If the Supreme Court transfers a cause to the
Court of Appeal and supplemental briefs may be filed
under rule 8.200(b), the cause is submitted. when the
last such brief is or could be timely filed. The Court
of Appeal may order the cause submitted at an earlier
time if the partiesso stipulate.
(a), Vacating submission
(1) Except as provided in (2), the court may vacate
submission only by ail order stating its reasons and .
setting a timetable for resubmission.
(2) If a cause s; submitted under (d)(2), an order
setting oral argument vacates submission and the
cause is resubmitted when the court has heard. oral
argument or approved its waiver.
(Formerly Rule 23, adopted of .. fait. 1, 2003. Renumber-
ed Rule 8.256 and amended, eff. Jan, 1, 2007.)
OFFICIAL FORMS - -
Mandatoryand optional Forms adopted and
approved by the Judicial Council are see out in t
West's California Judicial Council Forrns Parrr
phlet
ROLE
8.260. OPINIONS [RESERVED, -
rr. JAN. 1, 2007]
ROLE 8.264. - FILING, FINALITY, AND
MODIFICATION OF DECISION
(a) Filing ,the decision
(1) The Court of Appeal clerk must promptly file
all. opinions and orders of the court and promptly
send copies showing the filing date to the parties and,
when relevant, to the lower court or tribunal.
(2) A decision by opinion must identify the partici-
pating justices, including the author of the majority
opinion and of any concurring or dissenting opinion,
or the justices participating in a "by the court"
opinion.
(b) FIrmifty of decision
(1) Except as otherwise provided in this rule, a
Court of Appeal decision in civil appeal; including
an order dismissing an appeal involuntarily, is final in
that court 30 days after filing.
(2) The following Court of Appeal decisions orb
final in that court ontiling;
(A) The denial of a petition for writ of superse.
deas; and
(B) The. dismissal. of an appeal on request or
stipulation. ,
(3) If a Court of Appeal certifies its opinion .For
publication or partial publication after filing its deci-
sion and before its decision becomes final in that
court, the finality period runs from the filing date of
the order publication:
(c) Modification of decision
526
r
a
(1) A reviewing court may modify a decision until
the decision is final in that court. If the clerk's office
is closed on the date, of finality, the court may modify
the decision on the next day the Clark's office is open.
(2) All order modifying an. opinion must state
whether it changes the appellate judgment. A modi.
fication that does not change; the appellate judgment
does not extend the finality date of the decision, ff a
modification changes the appellate judgment, the
finality period runs from the filing date of the
modification order.
(d) Consent to Increase. or decrease in amount of
Judgment
If a Court of Appeal decision conditions the affir-
mance of a money judgment on a party's consent to an
Increase or decrease in the amount, the judgment is
reversed unless, before the decision is final under (b),
the party serves and files two copies of a consent in the
Court- of Appeal. If a consent is filed, the finality
period runs from the filing date of the consent. The
clerk must send one file -stamped copy of the consent to
he superior court with the remittitur.
(Formerly Rule 24, adopted eff. Jan. 1, 2003. Renumber.
ed Rule 8.264 and amended, eff. Jan. 1, 2007. As
mended, eff. Jan. 1, 2009.)
Advisory Committee Comment
Subdivision (b). As used in subdivision (b)(1),.
"decision" includes all interlocutory orders of the
Court of Appeal: (See Advisory Committee -Com-
ment to rule 8.500(a) and (e).) This: provision
addresses the finality of decisions in civil appeals and,
through a cross-reference in rule 8.470, in juvenile
appeals. See rule 8.366 for provisions addressing the
finality,ofdecisionsinproceedings under chapter. 3,
relating to criminal appeals; rule8.387 for provisions
addressing finality_ of decisions under chapter 4,..
relating to habeas corpus proceedings; and rule 8,490
forprovisionsaddressing the finality of decisions in
proceedings under chapter 7, relating to writs of
mandate, certiorari, and prohibition.
Subdivision.(b)(3) provides that a postfiling deci-
sion of the Court of Appealtopublish its opinion in
whole under rule 8.1105(c) or in part under rule
8.1100(a) restarts the 30-day finality period. This
provision is based on rule 40-2 of the United States
Circuit Rules (9th Cir.). It is intended to allow
parties sufficient timdlto petition the Court of Appeal
for rehearing and/or the Supreme Court for review —
and to allow potential amici curiae sufficient time to
express their views —when the Court of Appeal
changes the publication status of an opinion. The
rule thus recognizes that the publication status of an
opinion may affect a party's decision whether to file a
petition for rehearing and/or a petition for review.
OFFICIAL FORMS
Mandatory and optional Forms adopted and
approved by the Judicial Council are set out in
West's Califonda Judicial Council Forms Pam.
phlel.
Ruu
{a) Power to Ord
(1)On petitir
reviewing court
that is not final t
(2) An:order
decision is final
date of finality,
next day the cle
..(b) Petition an
-(1) A party -
rehearing withi
(A) The
(B) A pu
period unde
already filed
(C) Am(.
judgment in
(D) The
(2) A part)
for rehearing
The clerk mIr
any order rl
notify the par
method. An
8 days after i
otherwise. /
be grantedu.
(3) The p
-relevant prey
(4) Befor
the presidin;
to file a time
(c) No exten
The time
rehearing in t
If the court 1
decision is fin
(d) Effect,
An order
and any opill
large in the C
(Formerly R
amended, eff
amended, of
2009.)
Mani
approvt
West's
phlet
(a) Isstu
SUPREME Couirr & COURTS OF APPEAL . RUIe 8.540
t vacate its
:a writ of
v. Supmda
odgment of
the petition
der to show
cases Was -
judgment it
fit or miler
view: if the
.ly include a
o issue the
it.
of this rule
als of review
uovidenlly"
s court may
asons. ror
d" ca ce its
my pending
Ad" matter
y decided in
itionat issue
ourl or the
t may also
raiders the
tartics reach
sonal relief
t construe a.
mrl can act.
Corot now
it which the
sm"—by an
dismissed."
.jurisdiction
ly the same
Leto retinas -
The Court
;a.after the
nentc Court
xder to the
tppeal clerk
,ion immedi-
I made final
r under rule
.titur; if the
remittitur—
joy (see rule
vur action Is
intended to
(1) those. in
purpose of
Appeal for
may order"
:If the court,
Ines that a
de 8.512(c))
.f Appeal in
litional issue
to Court of
intended to
Court, after
imrwfening to itself before decision a cause pending in
the Court of Appeal, retrintxfers the matter to that
court without decision and with or without histruc-
tions.
RULE 8.532. FILING, FINALITY, AND
MODIFICATION OF DECISION
(a) Filing the decision
The Supreme Court clerk must promptly file all
opinions and orders issued by the court and promptly
send copies showing the filing date to the parties and,
when relevant, to the lower court or tribunal.
(b) Finality of decision
(1) Except as provided in (2), a Supreme Court
decision is final 30 days after filing unless:
(A) The court orders It shorter period; or
(1) Before the 30-day period or any extension
expires the court orders one or more extensions,
not to exceed a total of 60 additional days.
(2) The following Supreme Court decisions are
final on filing:
(A). The denial of a petition for review of a
Court of Appeal decision;
(B) A disposition ordered under rule 8.528(b),
(d), or.(e);
(C) The denial of a petition for a writ within the
court's original jurisdiction without issuance of an
alternative writ or order to show cause; and
(D) The denial of a petition for writ of superse-
deal.
(c) Modification of decision
The Supreme Court may modify a decision as provid-
ed in rule 8.264(c).
(Formerly Rule 29.4, adopted, eff. Jam 1, 2003, Renum-
bered Rule 8.532, and amended, eff. Jan. 1, 200Z)
Advisory Committee Comment
Subdivision W. Subdivision.(b)(2)(A), recognizes
the general rule that Life denial of a petition for
review of a Court of Appeal decision is final on filing.
Subdivision (b)(2)(B)-(D) recognizes several addi-
tional types of Supreme Court decisions that are final
on filing.. Thus (b)(2)(B) recognizes that a dismissal,
a transfer, and a retransfer under (b), (d), and (a),
respectively, of rule 8.528 are decisions finalorrfiling.
A remand under rule 8.528(c)-is not a decision final
on filing because it is not a, separately filed order;
rather, as part of its appellate judgment at the and of
its opinion in such cases the Supreme Court simply
orders the cause remanded to the Court of Appeal
for disposition of the remaining issues in the appeal.
Subdivision (b)(2)(C) recognizes that an order
denying a petition for atwrit within the court's original
jurisdiction without issuance of an alternative writ or
order to show cause is final on filing. The provision
reflects the settled Supreme Court practice; since at
least 1989, of declining to file petitions for rehearing
in such matters. (See, e.g,, In re Hayes (S004421)
Minutes, Cal. Supreme Ct.; July 28, 1989 ( "rho
motion to vacate this court's order of May is, 1QS9
[denying a petition for habeas corpus without opin.
lon]I is denied. Because the California Rules of
Court do not authorize the filing of a petition for
rehearing of such an order, the alternate request to
consider the matter as a petition for rehearing is
denied."].)
Subdivision (b)(2)(D) recognizes that an order
denying. a petition for writ of supersedeas is final on
filing.
RULE 8.536. REHEARING.
(a) Power. to order rehearing
The Supreme Court may order rehearing. as provided
in rule.8.268(a).
(b) Petition and answer
A petition for rehearing and any answer must comply
with rule 8.268(b)(1) and (3). Any answer - to the
petition must be served and filed within eight days after
the petition is filed. Before the Supreme Court deci-
sion is final and for good cause, the Chief Justice may
relieve a party from a failure to file a timely petition or
answer.
(c) Extension of time
The time for granting or denying a 'petition for
rehearing in the Supreme Court maybe extended under
rule 8.532(b)(1)(B). If the court does not yule on the
petition before the decision is final, the petition is
deemed denied.
(d) Determination of petition
An order granting a rehearing must be signed by at
least four justices; an order denying rehearing may be
signed by the Chief Justice alone.
(e) Effect of granting rehearing
Anorder granting a rehearing vacates the decision
and any opinion filed in the case and sets the cause at
large in the Supreme Court.
(Formerly Rule .29.5, adopted, eff. Jan. 1, 2003. As
amended, eff. Jan: 1,2004. Renumbered Rule 8.536 and
amended, cff. Jan: 1, 20OZ)
RULE 8.540. REMirnTuit
(a) Proceedings requiring issuance of remittitur
The Supreme Court must issue a remittitur after a
decision in:
(1) A review of a Court of Appeal decision; or
(2) An appeal from a judgment of death or in a
cause transferred to the court under rule 8.552.
(b) Clerk's duties _
(1) The clerk must issue a remittitur when a
decision of the court is final. The remittitur is
deemed issued when the clerk enters it in the record.
(2) After review of a Court of Appeal decision, the
Supreme Court clerk must address the remittitur to
the Court of Appeal and send that court two copies of
563
EXHIBIT B
WATER REPLENISHMENT DISTRICT
OF SOUTHERN CALIFORNIA
ADMINISTRATIVE CODE
Revised
January, 2011
Hoard of Directory
Willard H, Murray, Jr., Division 1
Robert Katherman, Division 2
Lillian Kawasaki, Division 3
Sergio Calderon, Division 4
Albert Robles, Division 5
General Manager, Robb Whitaker, RE;
Il.. _...R r _ 1 1 N
The District's claims presentation procedure shall govern all claims against. the District for
money or damages which are excepted by Government Code Section 905, and which are
not governed by any other statutes or regulations expressly relating to such claims.
19.1 Claims Presentation Procedures
19.1.1 Claims against the District
This claims presentation procedure shall govern all claims against the District
for money or damages which are accepted by Government Code Section 905,
and which are not governed by any other statutes or regulations expressly
relating to such claims.
19.1.2 Claim Prerequisite
All persons or entities which have any claim for money or damages against the
District shall first file a clairn ih accordance with the procedures set forth herein
as a prerequisite to the filing of any lawsuit against the District.
19.1.3 Accrual of Cause of Action
For the purpose of computing the time limits prescribed herein, the date of the
accrual of a cause of action to which a claim relates is the date upon which the
cause of action would be deemed to have accrued within the meaning of the
statute of limitations which would be applicable to a cause of action based
upon such claim.
19.1..4 Contents and Presentation of Claim
A claim shall be presented by the claimant or by a person acting on his or her
behalf and shall show all of the following:
a) The name and post office address of the claimant.
b) The post office address the person presenting the claim desires the
notices to be sent.
c) The date, place and other circumstances of the occurrence or
transaction, that give rise, to the claim asserted.
d) A general description of the indebtedness, obligation, Injury, .damage or
loss incurred so far as it may be known at the time of presentation of
the claim.
e) The name or names of. the District employee or employees causing the
injury, damage, or loss, if known.
f) The amount claimed if it totals less than ten thousand dollars
($10,000.00) as of the date of presentation of the claim, including the
estimated amount of any prospective injury, damage, or loss; insofar as
It may be known at the time of presentation of the claim, together with
the basis of computation of the amount claimed. If the amount claimed
Administrative Code - -- -
.. - 112
Water Replenishment Dlslrlct of Southern California Oatoper 21, 2011
19.1.5
19.1.6
exceeds ten thousand dollars ($10,000.00), no dollar amount shall be
included in the claim. However, the claim shall indicate whether
jurisdiction over the claim would rest in municipal or superior court, in
the event a lawsuit is filed on the claim.
g) The claim shall be signed by the claimant or by some person acting on
his or her behalf.
Time for Presentation of Claim
Any claim relating to a cause of action for death or for injury to person or to
Personal property or growing crops shall be presented no later than six months
after the accrual of the cause of action. A claim relating to any other cause of
action shall be presented no later than one year after the accrual of the cause
of action.
Amendment of Claims
Any claim may be amended at any time before the expiration of the period
designated in19.1.5 above, or before final action on such claim is taken by the
Board of Directors, whichever is later. The amended claim must relate to the
same transaction or occurrence that gave rise to the original claim. The
amendment shall be considered a part of the original .claim for all purposes.
19.1.7 Notice of Insufficiency of Claim
If, in the opinion of the General Manager or such other person designated by
the Board to review claims submitted to the District, a claim fails to comply
substantially with the requirements of this procedure, the District may give
written notice of the insufficiency of such claim within 20 days after
presentation of the claim, which notice shall state with particularity the defects
or omissions in the claim. The Board may not take action on the for a
period of 15 days after such notice Is. mailed.
19.1.8 Notice of Late Claim
Where a claim which must be presented not later than six months after accrual
of the cause of action is presented after such time without an application for
leave to present a late claim, the General Manager or such other person
designated by the Board may, at anytime within 45 days after the claim is
presented, give written notice to the person presenting the claim that the claim
was, not filed timely and that it is being retumed without further action.
19.1.9 Application for Leave to Present Late Claim
When a claim that Is required to be presented; no later than six months after
the accrual of the cause of action is not presented within such time, the
claimant must -make written application to the District for leave to present such
claim.
An Application for Leave to Present Late Claim must be presented to the
District as hereinafter provided within a reasonable time not exceed one
year after the accrual of the cause of action. The application shall state the
Administrative Code - - - -
113
Water Replenlshment Olstdct of Southem Callfornia October 21, 2011
reason for the delay in presenting the claim, and the proposed claim shall be
attached to the application:
In computing the one year period within which an Application for Leave to
Present Late Claim must be made, that time during the person who sustained
the alleged injury, damage or loss is a minor shall be counted, but the time
during which he or she is mentally Incapacitated and does not have a guardian
or conservator of his or her person shall not be counted..
The Board of Directors shall grant or deny the application for leave to present
late claim within 45 days after it is presented to the District. The claimant and
the District may extend the period within which the Board of Directors is
required to act by written agreement made before the expiration of the 45 day
period. .
The Board of Directors shall grant the Application for Leave to Present Late
Claim where one or more of the following is applicable:
a) The failure to present the claim was through mistake, Inadvertence,
surprise. or excusable neglect and the District was not prejudiced in its
defense of the claim by the failure to present the claim within the time
required.
b). The person who sustained the alleged injury, damage or loss was a
minor during all of the time provided for presentation of the claim.
c) The person who sustained the alleged injury, damage or loss was
physically or mentally incapacitated during all of the time provided for
presentation of the claim, and because of such disability failed to
present the claim during such time.
d) The person who sustained the alleged injury, damage or loss died
before the expiration of the time specified for presentation of the claim.
If the Board falls or refuses to act on an Application within the time prescribed
In Section 19.1.2 above, the Application shall be deemed to have been denied
on the 45th day after presentation or, if the period within which the Board is
required to act is extended by agreement pursuant to this Section, the last day
of the period specified in the agreement.
If the Application is denied, the notice of such denial shall.include a warning in.
substantially the following form:
• "Warning: If you wish to file a court action on this matter, you
must first petition the appropriate court for an order relieving you
from the provisions of Government Code Section 945.4 (Claims
Presentation Requirement). See Government Code Section
946.6. Such petition must be filed with the court within six
months from. the date your application for leave to present a late
claim was denied."
Administrative Code - - - - 114
Water Replenishment District of Southern California. October 21, 2011
• "You may seek the advice of an attorney of your choice in
connection with this matter, if you desire to consult with an
attorney you should do so immediately.
e) If an Application for Leave to Present a Late Claim is granted by the
Board of Directors, the claim shall be deemed to have been presented
to the Board on the day that leave to present the late claim is granted.
19.1.10 District Action on Claim
a) The Board of Directors shall act on a claim within 45 days after the
claim has been presented, If a claim is amended, the Board shall act
on the amended claim within 45 days after the amended claim is
presented.
b) The claimant and the District may extend the period within which the
Board is required to act on the claim by written agreement made (a)
before the expiration of such period; or (b) after the expiration of such
period if an action based on the claim has not been commenced and is
not yet barred by the applicable: statute of limitations.
c) If the Board fails or refuses to act on a claim within the time prescribed,
the claim shall be deemed to have been rejected by the Board on the
last day of the period within which the Board was required to act upon
the claim.
d) The Board may act on a claim in one of the following ways:
• If the Board finds the claim is not a proper charge against the
District, it shall reject the claim.
• If the Board finds the claim is a proper charge against the
District and is for an amount justly due, It shall allow the claim.
• If the Board finds the claim is a proper charge against the
District but is for an amount greater than that which is justly due,
It shall either reject the claim in its entirety, or allow it In the
amount justly due and reject it as to the balance.
• If the District's liability or the amount justly due is disputed, the
Board may reject the claim or may settle the claim.
e) The District shall pay the amount allowed on the claim or in
compromise of the claim in the same manner as If the claimant had
obtained a final judgment against the District for that amount. The
District may require the claimant to execute a release in favor of the
District as a condition of allowing or compromising the claim. If an
agreement for payment of the claim in Installments is made, the District
may, in its discretion, prepay any one or more installments or any part
of an installment. Any agreement for payment of a claim in more than
ten equal annual installments must be approved by a court of
competent jurisdiction.
Administrative Code - 115
Water Replenishment District of Southern California October 21, 2011
19.1.11 Delivery or Mailing of Claimi Amendment, or Application
Any notice of a Board action with respect to a claim or application for leave to
present a late claim shall be given by either of the following methods:
a) Personally delivering the notice to the person presenting the claim or
making the application;; or
b), Mailing notice to the address, if any, stated in the claim or application
as the address to which the person presenting the claim or making the
application desires notices to be sent or, if no such address is stated in
the claim or application, by mailing.the notice to the address, if any, of
the claimant as stated in the claim or notification.
No notice need by given where the claim or application fails to state either an
address to which the person presenting the claim or making the application
desires notices to be sent or an address of the claimant.
Where notice from the District is given by mail, the notice shall be mailed in
the. manner prescribed herein, and deposited in the United States Post Office,
or a mailbox, sub -post office, substation, or mall chute, or other likely facility
regularly maintained by the government of the United States, in a sealed
envelope, properly addressed, with postage paid, The notice shall be deemed
to have been presented and received at the time of the deposit. Proof of
mailing may be made in the manner prescribed by Section 1013a of the Code
of Civil Procedure. The District. may Include in any written agreement to which
it Is a party, provisions governing the presentation of any claims arising out of
or related to that agreement and the consideration and payment of such claim.
Such agreement may incorporate by reference these claim presentation
procedures and may include a requirement that a claim be presented and
acted upon as a prerequisite to suit thereon.
The District may establish a committee of not less than three of its "mom bers to
perform the functions of the Board regarding claims presented to the District..
The District may authorize an employee of the District to perform those
functions that the Board requires under this procedure, but such employee
may only allow, compromise or settle a claim against the District if the amount
to be paid pursuant to the allowance, compromise or settlement does not
exceed five. thousand dollars ($ 5,000.00):
19.1.12 Prohibition against Suit In Absence of Presentation of Claim
No suit for money or damages may be brought against the District on a cause
of action for which a claim is required to be presented in accordance with
these claims presentation procedures or with the Tort Claims Act (Government
Code Sections900 et seq.) until a written claim therefore has been presented
to the District and has been acted upon by.the Board of Directors, or has been
deemed to have been rejected by the Board, in accordance with this
procedure and with the Tort Claims Act.
Administrative Code - - - -
_ lie
Water Replenishment District of southern California - October 21, 2011
Any suit brought against the District on a cause of action where a claim is,
required to be presented must be commended:
a) If written -notice of Board action on the claim Is given by the District, not
later than six`months after the date such notice is personally delivered
or deposited in the mail; or
b) If written, notice of Board action on the claim is not given by the District
within two years from the_accrual of the cause of action
OFFICE OF THE CITY CLERK
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
June 21, 2012
Robb Whitaker
General Manager
Water Replenishment District of Southern California
4040 Paramount Blvd.
Lakewood, CA 90712
Re: Tolling Agreement by and Between the City of Vernon and the Water Replenishment
District of Southern California
Dear Mr. Whitaker:
Transmitted herewith are two partially executed originals of the above -referenced agreement
approved by City Council on June 19, 2012, through Resolution No. 2012-103.
Please return one fully executed original agreement to the undersigned.
If you have any questions regarding this matter, please call Scott Rigg, at (323) 583-8811 ext.
279.
very ty yours,
kVI ARD
City Clerk
WGY:dj
Enclosures
c: Edward Casey
Scott Rigg
S. Kevin Wilson
Resolution No. 2012-103
Agreement No. 12-057
I
Ecfusivefy Industrid
TOLLING AGREEMENT BETWEEN THE CITY OF VERNON AND THE
WATER REPLENISHMENT DISTRICT OF SOUTHERN CALIFORNIA
THIS AGREEMENT is made and entered into as of July 1. 2012, ("Effective Date"), by and
between the City of Vernon, a California charter City and California municipal corporation
("City"), and the Water Replenishment District of Southern California ("District'). City and
District are collectively referred to herein as the "Parties"
RECITALS
1. City desires to enter into a Tolling Agreement with the District to preserve the
City's potential refund claim without filing litigation and/or stop paying the replenishment
assessment at this time.
NOW, THEREFORE, the Parties agree as follows:
Section A. The District is a water replenishment district organized and existing
pursuant to the Water Replenishment District Act, California Water Code Section 60000 et seq.,
and manages the groundwater in the Central and West Coast Groundwater Basins. Pursuant to
the Replenishment District Act, the District is authorized to collect a replenishment assessment
("Assessment") from persons and entities who produce groundwater from either the Central
Groundwater Basin ("Central Basin") or the West Coast Groundwater Basin ("West Basin") in
Los Angeles County, which Assessment takes effect on July 1" each year.
Section B. The City produced groundwater from the Central Basin and/or West Basin
during the years from 2007 to 2011 and paid the Assessment to the District with respect to that
groundwater production, and continues to produce such groundwater.
Section C. On or about August 24, 2010, the Cities of Downey, Signal Hill and
Cerritos (the "Petitioners") filed the action entitled City of Cerritos, etc., et al. v. Water
Replenishment District of Southern California, et al., Los Angeles County Superior Court,
Case No. BS128136 (the "Downey Prop 218 Lawsuit'). In the lawsuit, the Petitioners claim that
Article XIII-D of the California Constitution ("Prop 218") applied to the District's adoption of
Assessments for the period from July 1, 2006 to July 1, 2010. On or about April 25, 2010, the
Los Angeles Superior Court entered an order ruling that Prop 218 applied to the District's
adoption of those Assessments. However, final judgment has not been entered because
Petitioners are prosecuting a cause of action for a monetary refund of the Assessments that
they paid to the District's during the time period alleged in their complaint ("Petitioner's Refund
Claim").
Section D. On or about May 20, 2011, Central Basin Municipal Water District
("CBMW D") filed the action entitled Central Basin Municipal Water District v. Water
Replenishment District of Southern California, et al., Los Angeles County Superior Court,
Case No. BS132202 (the "CBMWD Prop 218 Lawsuit"). In that action, CBMWD alleges, among
other causes of action, claims seeking a writ of mandamus and declaratory relief on the ground
that Prop 218 applies to the District's adoption of the Assessment for the period from
July 1, 2011 to June 30, 2012.
Section E. On or about July 5, 2011, the District filed the action entitled Water
Replenishment District of Southern California v. All Interested Persons, et al., Los Angeles
County Superior Court, Case No. BC464772 (the "WRD Validation Action"). In that action, the
District seeks a validation pursuant to California Code of Civil Procedure Section 860 that its
adoption of the Assessment for the period from July 1, 2011 to June 30, 2012, complied with all
applicable laws, including Prop 218.
Section F. On or about July 5, 2011, the District filed the action entitled Water .
Replenishment District of Southern California v. City of Cerritos, et at., Los Angeles County
Superior Court, Case No. BC464773 (the "WRD Declaratory Relief Action"). In that lawsuit,
W RD seeks a declaratory judgment that the District's adoption of the Assessment for the period
from July 1, 2011 to June 30, 2012 complied with all applicable laws, including Prop 218.
Section G. Certain persons and entities who produce groundwater from either the
Central Basin and/or the West Basin have informed the District that (i) if a final judgment is
entered in any of the actions described in Sections I-C through F, above, to the effect that Prop
218 applies to the District's adoption of the Assessment, they may seek a refund of the
Assessments paid to the District since July 1, 2007, to the extent permitted by law, (ii) they wish
to reserve their right to assert a claim for a monetary refund of those Assessments paid to the
District since July 1, 2.007 (the "Potential Refund Claim"), and/or (iii) they may not pay any more
Assessments until the actions described in Section I-C through F, above, are resolved and/or
join in one or more of those actions.
Section H. In order for the City to preserve its Potential Refund Claim without filing
litigation and/or stop paying the Assessment at this time, as well as to limit the Parties' litigation
costs, the District and the City enter into this Agreement.
TERMS OF THE AGREEMENT
For valuable consideration, including the covenants provided in this Agreement, the receipt of
which is duly acknowledged by the Parties, the District and the City agree as follows:
A. With respect to Assessments paid by the City to the District during the period
from one year prior to May 20, 2011, through the Termination (as that term is defined in Section
11-G of this Agreement) of this Agreement (the 'Tolling Period"), the District and the City agree
that any and all statues of limitation applicable to the City's Potential Refund Claim for those
Assessments, including but not limited to, the one-year limitation period provided under Section
911.2 of the California Government Code, shall be tolled until this Agreement is terminated.
Provided that this Agreement is not terminated prior to entry of a Final Judgment (as defined in
Section II-G below) in the Downey Prop 218 Lawsuit, the `Tolling Period" shall be extended to
one year before August 24, 2010, if a Final Judgment, as defined in Section 11-G below, is
entered on Petitioner's Refund Claim in the Downey Prop 218 lawsuit to the effect that
Petitioners are entitled to a refund Assessment they paid to the District beginning on
August 24, 2009). With respect to Assessments paid by the City to the District during the period
of July 1, 2007, to the commencement of the Tolling Period, the District and the City reserve
their respective rights and defenses as to whether the City's Potential Refund Claim for those
Assessments is barred by the applicable statues of limitation. It is the intent and understanding
of the Parties that by entering into this Agreement, the City is securing, and the District is
agreeing to, the application of the one-year limitation period provided in Government Code
Section 911.2 based on the date of the filing of the (i) CBMWD Prop 218 Lawsuit, which,
therefore, provides the City with the same rights under Government Code Section 911.2 as
claimed by the petitioner and its purported class in the CBMWD Prop 218 Lawsuit, or (ii)
Downey Prop 218 Lawsuit if the Tolling Period is extended as provided in this Section 11-A.
2-
B. In any litigation commenced by the City on its Potential Refund Claim for
Assessments paid to the District since July 1, 2007, the District shall not assert any defense
based on waiver, laches, or estoppel attributable to the City's payment of the Assessment and
forbearance from filing litigation during the Tolling Period. Except for the defenses specified in
the first sentences of Sections II -A and II-B of this Agreement, the District reserves all of its
defenses applicable to the City's Potential Refund Claim, including but not limited to the amount
of any refund that may be owing to the City.
C. Until this Agreement is terminated pursuant to the provisions of Section II-G
below, the City shall continue to pay the Assessment to the District based on the City's
production and in accordance with the Replenishment Act.
D. Until this Agreement is terminated pursuant to Section II-G below, the City shall
(i) not join as a party to, or intervene in, or provide funding, directly or indirectly, for either the
Downey Prop 218 Lawsuit or the CBMWD Prop 218 Lawsuit, and (ii) not take any position in
opposition to the District in either the WRD Validation Action or the WRD Declaratory Relief
Action. Until this Agreement is terminated pursuant to Section II-G below, neither the City nor
the District shall commence litigation against the other Party respect to the City's Potential
Refund Claim.
E. If the City seeks to commence litigation on its Potential Refund Claim after the
Termination of this Agreement, the City shall first file an administrative claim with the District
pursuant to the District's claim procedures provided in its Administrative Code (the "District's
Claims Procedures") and in accordance with the Government Claim Act (California Government
Code Section 900 et sea.), including but not limited to Government Code Section 935. (A copy
of the District's Claims Procedures in effect as of the Effective Date of this Agreement is
attached hereto as Exhibit A). The City shall not file any lawsuit seeking a refund of the
Assessments until the City files such an administrative claim with the District and the District has
acted on that claim in accordance with the provisions of the District's Claims Procedures and
the applicable provisions of the Government Claims Act. Except as otherwise provided in this
Agreement, the City reserves the rights with regard to any claim or cause of action, including its
Potential Refund Claim, whether against the District or against any third party.
F. This Agreement shall be modified to incorporate any more favorable provision in
any tolling agreement that the District may hereinafter enter into with another person or entity
who produces groundwater from either the Central or West Basin with respect to that
groundwater producer's claim for a monetary refund of the Assessment based on a claims that
District failed to comply with Prop 218.
G. This Agreement shall terminate upon the earlier of: (i) thirty (30) calendar days
after either the District or the City provides written notice to the other Party that it is exercising
the right to unilaterally terminate the Agreement or (ii) a "Final Judgment" is entered in
connection with any of the lawsuits described in Section I-C through F, above (the "Subject
Lawsuits") that determines the Prop 218 applies to the District's adoption of the Assessment.
For purposes of this Agreement, the term "Final Judgment' is defined as the thirtieth (301h)
calendar day after the latter of (i) the last day by which a party to any of the Subject Lawsuits
was required to file a Notice of Appeal of a judgment entered in a Subject Lawsuit and no such
Notice of Appeal is filed (as of the Effective Date of this Agreement, Rule 8.104 of the Cal.
Rules of Court governs the time by which a Notice of Appeal must be filed, and a copy of Rule
8.104 is provided in Exhibit B hereto); (ii) the date by when a decision by a Court of Appeal in a
case where a Notice of Appeal is filed by a party to a Subject Lawsuit becomes final in
-3-
accordance with applicable law and no petition for review is filed with the California Supreme
Court (as of the Effective Date, Rule 8.264 of the Cal. Rules of Court governs the finality of
decisions by California courts of appeal, and a copy if Rule 8.264 is provided in Exhibit B
hereto); or (iii) the date by when a decision by the California Supreme Court on any petition for
review that is filed by a party to a Subject Lawsuit becomes final (as of the Effective Date of this
Agreement, Rule 8.532 of the Cal. Rules of Court governs the finality of decisions by the
California Supreme Court, and a copy of Rule 8.532 is provided in Exhibit B hereto). The.
parties waive any right to assert, at any time, that this Tolling Agreement has itself been
rendered unenforceable by operation of law or by passage of time. Upon termination of this
Agreement, the parties shall be restored to the same status they occupied and rights they.
enjoyed as of the Effective Date.
H. None of the statements or promises contained in this Agreement shall be
construed as any admission of any kind concerning the subject matter of this Agreement.
Moreover, this Agreement may not be offered in any court or legal proceedings by any Party for
any purpose except (1) to prove the Tolling Period for commencement of litigation or (2) to
resolve a dispute between the Parties regarding the interpretation or enforcement of this
Agreement.
I. The Parties to this Agreement represent that the signatories below have the
actual authority to bind their respective Parties to the terms of this Agreement, and acknowledge
that each Party to this Agreement has relied upon that apparent authority in entering this
Agreement.
J. This Agreement shall be construed and governed exclusively by the laws of the
State of California.
K. Inasmuch as this Agreement is the product of joint drafting and negotiation
between the Parties, it is agreed and understood that the general rule that ambiguities are to be
construed against the drafter shall not apply to this Agreement. In the event that any language
of this Agreement is determined to be ambiguous, each Party shall have an opportunity to
present evidence as to the actual intent of the Parties with respect to any such ambiguous
language.
L. This Agreement may be executed in one or more counterparts, including
facsimile copies, each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
M. This Agreement constitutes the entire understanding between the Parties with
respect to the matters set forth herein. Except as otherwise provided herein, this Agreement is
intended to be the final expression of the Agreement between the Parties with respect to the
subject matter of this Agreement and supersedes and fully and completely extinguishes any
prior understandings or agreements by or between the Parties, whether oral or in writing.
N. Any amendment or modification of this Agreement must be in writing and signed
by the Parties. Any amendment or modification not made in this manner shall have no force or
effect.
O. This Agreement shall bind and inure to the benefit of the respective successors
and assigns of each Party.
P. Delivery of any notices required under this Agreement shall be provided, and
deemed complete, upon facsimile transmission, by deposit in the overnight mail, or upon actual
hand delivery upon both the Party and its attorney as follows:
To the City:
City of Vernon
Willard G. Yamaguchi, Chief Deputy City Attorney
4305 Santa Fe Avenue
Vernon, CA 90058
Telephone: (323) 583-8811
Facsimile: (323) 826-1438
With a copy to:
City of Vernon
Kevin Wilson, Director of Community Services & Water
4305 Santa Fe Avenue
Vernon, CA 90058
Telephone: (323) 583-8811
Facsimile: (323) 826-1435
To the District:
Mr. Robb Whitaker
General Manager
Water Replenishment District of Southern California
4040 Paramount Boulevard
Lakewood, CA 90712
Telephone: (562) 921-5521
Facsimile: (562) 921-6101
With a copy to:
Edward J. Casey, Esq.
Alston & Bird LLP
333 South Hope Street, 16'h Floor
Los Angeles, CA 90071
Telephone: (213) 576-1000
Facsimile: (213) 576-1100
[Signatures Begin on Next Page].
-5-
IN WITNESS WHEREOF, the Parties have signed this Agreement as of the date stated
in the introductory clause.
City of Vernon, a California charter City WATER REPLENISHMENT DISTRICT OF
and California municipal corporation SOUTHERN CALIFORNIA
By: Iter. By:
Mayor / Mayor Pro-Tem
Chief Deputy City
Name: Albert Robles
Its: President. Board of Directors
z
Name: Robert Katherman
Its: Secretary, Board of Directors
APPROVED AS TO FORM:
Edward J. Casey
Attorneys for Water Replenishment District of
Southern California
EXHIBIT A
Rule 8.100 APPELLATE RULES
Information Statement (form APP-004) and a notice
that the statement must be filed within 10 days.
(2) Within 10 days after the clerk mails the notice
required by (1), the appellant must serve and file in
the reviewing court a completed Civil Case Informa-
tion Statement, attaching a copy of the judgment or
appealed order that shows the date it was entered.
(3) If the appellant fails to timely file a case
information statement under (2), the reviewing court
clerk must notify the appellant by mail that the
appellant must file the statement within 15 days after
the clerk's notice is mailed and that if the appellant
fails to comply, the court may either impose monetary
sanctions or dismiss the appeal. If the appellant fails
to file the statement as specified in the notice, the
court may impose the sanctions specified in the
notice.
(Formerly Rule 1; adopted, eff. Jan. 1, 2002, As amend-
ed,:eff. Jan. 1, 2003, Aug. 17, 2003. Renumbered Rule
8.100 and amended, eff. Jan. 1, 2007. As amended, eff.
Jan. 1, 2008; July 1, 2009.)
Advisory Committee Comment
Subdivision (a). In subdivision (a)(1), the refer-
ence to "judgment" is intended to include part of a
judgment. Subdivision (a)(1) includes an explicit
reference to "appealable order" to ensure that liti-
gants do not overlook the applicability. of this rate to
such orders.
Subdivision (b). In the interest of consistency,
subdivision (b)(1) recommends a preferred word-
ing —"Clerk, Court of Appeal" —for the name of the
payce of checks or money orders for the filing fee.
The provision is not mandatory.
Subdivision (c)(2); This subdivision addresses the
content of a clerk's notice that a check for the filing
fee has been dishonored or that the reviewing court
has received a notice of appeal without the filing fee,
a certificate of cash payment, or an application for, or
order granting, a fee waiver. Rule 8.26(f) addresses
what an appellant must do when a fee waiver
application is denied.
Subdivision (e)..Under subdivision (e)(2), a notifi-
cation of the filing of a notice of appeal must show
the date that the clerk mailed the document. This
provision is intended to establish the dale when the
20-day extension of the time to file a cross -appeal
under rule 8.108(e) begins to run.. -
Subdivision (e)(1) requires the clerk to mail a
notification of the filing of the notice of appeal to the
appellant's attorney or to the appellant if unrepre-
sented. Knowledge of the date of that notification
allows the appellant's attorney or the appellant to
track the running of the 20-day extension of time to
file across -appeal underrate 8.108(e).. -
OFFICIAL FORMS -
Mandatomy and optional Forms adopted and
approved by the Judicial Council are set out in
West's California Judicial Council Forms Pam-
phlet.
RULE 8.104. 1`1ME TO APPEAL
(a) Normal time
Unless a statute or rule 8.108 provides otherwise, a
notice of appeal must be filed on or before the earliest
of:
(1) 60 days after the superior court clerk serves the
party filingthe notice of appeal with a document
entifled "Notice of Entry" of judgment or a file.
stamped copy of the judgment, showing the date
either was served;
(2) 60 days after the party filing the notice of
appeal serves or is served by a party with a document
entitled "Notice of Entry" of judgment or a file -
stamped copy of the judgment, accompanied by proof
of service•, or
(3) 180 days after entry of judgment.
(4) Service under (1) and (2) may be by any
method permitted by the Code of Civil Procedure,
including electronic service when permitted under
Code of Civil Procedure section 1010.6 and rules
2.2.50-2.261, -
(b) No extension of time; late notice of appeal
'Except as provided in rule 8.66, no court may extend
the time to file a notice of appeal. If a notice of appeal
is filed late, the reviewing court must dismiss the appeal.
(c) Periodic payment of judgments against public
ea lilies
If a public entity elects, under Government Code
section 984'and -rule 3.1804, to pay a judgment in
periodic payments, subdivision (a) of this rule governs
the time to appeal from that judgment but the periods
prescribed in (a)(1) and (2) are each 90 days.
(d) What constitutes entry
For purposes of this rule:
(1) The entry date of a judgment is the date. the
judgment is filed under Code of Civil Procedure
section 669.5, or the date it is entered in the judgment
book.
(2) The entry date of an appealable order that is _
entered in the minutes is the date it is entered in the
permanent minutes. But if the minute order directs
that a written order be prepared, the entry date is the
date the signed order is filed; a written order
prepared under rule 3.1312 or similar local rule is not
such an order prepared by direction of a minute
order.
(3) The entry date of an appealable order that is
not entered in. the minutes is the date the signed
order is filed.
(4) The entry date of a decree of distribution in a
probate proceeding is the date it is entered at length - - in the judgment book or other permanent. court
record.
(e) Premature notice of appeal
494
(1) A notice
rendered but b
treated as filed
(2) The revit
appeal filed aft,
its intended rut
ment, as filed i
(f) Appealable
As used in (a
appealable order
order.
(Formerly Rule 2,
ad, eff. Jan. 1,
amended, eff. Am
2010.)
Atli
Subdivision
rice of entry 0:
must show tit
document. T
that the 60-
begins to run.
Subdivision judgment (or
a parry be a,
proof of sery
period under
though the
requires pros
parties, ther•
the serious
notice of spit,
Subdivisio
concerning I
inmates ant
Subdivision
holds that I
excuse a late
leseeni Harp
674; Estate
In crimin
appeal is gc
of "construe
10 Ca1.3d 7:
Mande
approved
West's Ca
phlet
RULE 8.1
(a) ExtenSl
This rule o
otherwise pr
shorten the
appeal statec
provided in I
8.104(a) govc
(b) Motioi
SUPREME COURT & COURTS OF APPCAL Rule 8.108
wise, a
-arliest
vesthe
:ument
a file-
te date
nice of
current
a file-
ryproof
by any
>cedure,
I under
id rules
d
y extend
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t public
nt Code
;meat in
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s periods
date the
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judgment..
er that is
-ed in the
erdirects
(ate is the
en order
rule, is not
a minute
ler that is
he signed
-ution in a
I at length
tent court
(1) A notice of appeal filed after judgment is
rendered but before it is entered is valid and is
treated as filed immediately after entry of judgment.
(2) The reviewing court may treat a notice of
appeal filed after the superior court has announced
its intended ruling, but before it has rendered judg-
ment, as filed immediately after entry of judgment.
(f) Appealable order
As used in (a) and (e), "judgment" includes an
appealable order if the appeal is frdm an appealable
order.
(Formerly Rule 2, adopted eff. Jan. 1, 2002. As omend
ed,- efff., Jan. 1, 2005. Renumbered Rule 8.104 and
amended eff. Jan. 1, 2007 As amended, eff. Jan. 1,
2010.)
Advisory Committee Comment
Subdivision (a). Under subdivision (a)(I), a no- '
rice of entry of judgment (or a copy of the judgment)
must show the date on which the clerk served the
document. The proof of service establishes the date
that the 60-day period corder subdivision (a)(1)
-begins to run.
Subdivision (a)(2) requires that a notice of entry of
judgment (or a copy of the judgment) served by or on
a party be accompanied by proofof. service. The
proof of service establishes the date that the 60-day
period under subdivision (a)(2) begins to run. Al-
though the general rule on service (rule 8.25(a))
requires proof of service for all documents served by
parties, the requirement is reiterated hem because of
the serious consequence of a failure to file a timely
notice of appeal (see subd. (e)).
Subdivision (b). See rule 8.25(b)(5) for provisions
concerning the timeliness of documents mailed by
Inmates and patients from custodial institutions.
Subdivision (b) is declarative of the case law, which
holds that the reviewing court lacks jurisdiction to -
excuse a late -filed notice of appeal (HollisterConva-
lesrent Hop.. Inc. v. Rico (1975) 1S Ca).3d 660, 666-
674; Estate ofHaidey (1943) 23 Cal2d 120, 122-124.)
In criminal cases, thetime for filing a notice of
appeal is governed by rule 8.308 and bythe case law- -
of "constructive filing." (See, e.g.,1n m Benofr (1973)
10 Cal.3d 72. ).
OFFICIAL FORMS
Mandatory and optional Forms adopted and
approved. by the Judicial Council are set out in
West's California Judicial Council Forms Pam-
phlet.
RULE 8.108. ) xTEnolrrc TBIs TIME To APPEAL
(a) Extension of time
- This rule operates only to extend the time toappeal
otherwise prescribed in rule-8.104(a); it -does not
shorten the time to appeal If the normaltime to
appeal stated in rule 8.104(a) is longer than the time
provided in this rule, the time to appeal stated in rule
8.104(a) governs.
(b) Motion for now trial
If any party serves and files a valid notice of intention
to move for a new trial, the time to appeal from the
judgment is extended for all parties as follows:
(1) If the motion is denied, until the earliest of:
(A) 30 days after the superior court clerk mails,
or a party serves, an order denying the motion or a
notice of envy of that order;
(B) 30 days after denial of the motion by opera-
tion of law•, or
(C) 180 days after entry of judgment.
(2) If any party serves an acceptance of a condi-
tionally ordered additur or remittitur of damages
pursuant to a trial court finding of excessive or
inadequate damages, until 30 days after the date the
party serves the acceptance.
(c) Motion to vacate judgment
If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid
notice of intention to move —or a valid motion —to
vacate the judgment, the time to appeal from the
judgment is extended for all parties until the earliest of:
(1) 30 days after the superior court clerk mails, or
a party serves, an order denying the motion or a
notice of entry of that order;
(2) 90 days after the. first notice of intention to
move --or motion —is filed; or
(3) 180 days after entry of judgment.
(d) Motion for judgment notwithstanding the verdict
(1) If any party serves and files a valid motion for -
judgment notwithstanding the verdict and the motion
is denied, the time to appeal from the judgment is
extended for all parties until the earliest of:
(A) 30 days after thesuperior court clerk mails,
or a party serves, an order denying the motion or a
notice of entry of that order;
(B) 30 days after denial of the motion by
opera-tion of law; or
180 days after entry of judgment.
(2) Unlessextended by (e)(2), the time to appeal
from an order denying a motion for judgment not.
withstanding the verdict is governed by rule 8,104.
(e) Motion to reconsider appealable order
If any party serves and files a valid motion to
reconsider an appealable order under Code of Civil
Procedure section 1008, subdivision (a), the time to
appeal from that order is extended for all parties until
the earliest of:
(1) 30 days after the superior court clerk mails, or
a party serves, an order denying the motion or a
notice of entry of that order;
(2) 90 days after the first motion to reconsider is
filed; or
(3) 180 days after entry of the appealable order.
(1) Cross -appeal
495
Rule 8.256 APPELLATE RULES
has expired to file all briefs and papers, including any
supplemental brief permitted by the court.
(2) If the Supreme Court transfers a cause to the
Court of Appeal and supplemental briefs may be filed
under rule 8.200(b), the cause is submitted when the
last such brief is or could be timely filed. The Court
of Appeal may order the cause submitted at an earlier
time if the parties so stipulate.
(e), Vacatingsubmission
(1) Except as provided in (2), the court may vacate
submission onlyby an order stating its reasons and
- setting a timetable for resubmission,
(2) If a cause is submitted under (d)(2), an order j
setting oral argument vacates submission and the
cause is resubmitted when the court has. heardoral
argument or approved its waiver. - i
(Formerly Rule 23, adopted, eff. Jan. 1, 2003. Renumber- r
ed Rule 8.256 and amended, eff. Jan. 1, 20OZ) t
OFFICIAL FORMS
Mandatmyand optional Forms adopted and
approved by the Judicial Council are set out in t
West's California Judicial Council Forms. Parlt-
phlet
e
RULE 8.260. OPINIONS [RESERVED, . - ?
raw. JAN. 1, 2007]
RULE 8.264. TILING, FINALITY, AND -
- MODIFICATION OF DECISION.
(a) Filing.. the decision
(1) The Court of Appeal clerk must promptly file
all opinions and orders of the court and promptly
send copies showing the filing date to the parties and,
wherixelevant, to the lower court or tribunal.
(2) A decision by opinion must identify the partici-
pating justices, including the author of the majority
opinion and of any concurring or dissenting opinion;
or the justices participating in a "by the court"
opinion.
(b) Finality of decision
(1) Except as otherwise provided in this rule, a
Court of Appeal decision in civil appeal; including
an order dismissing an appeal involuntarily, is final in
that court 30 days after filing. -
(2) The following Court of Appeal decisions are
final in that court oil fling:
(A) The denial of a petition for writ of superse-
deas; and
(B) The dismissal of an appeal on request or
stipulation.
(3) If a Court of Appeal certifies its opinion for
publication or partial publication after filing its deci-
d
(1) A reviewing court may modify a decision until
the decision is final in that court. If the clerk's office
is closed on the date of finality, the court may modify
the decision on the next the clerk's office is open.
(2) An order .modifying an opinion must state
whether it changes the appellate judgment. A modi-
fication that does not change the appellate judgment
.does not extend the finality date of the decision, If a
modification changes .the appellate judgment, the
finality period runs from the filing date of the
modification order.
(d) Consent. to Increase or decrease-in'amount .of
udgment
If a Court of Appeal decision conditions the affir.
mane of a money judgment on a party's consent to an
ncrease or decrease in the amount, the judgment is
eversed unless, before the decision is final under (b),
he party serves and files two copies of a consent in the
Court. of Appeal. If a consent is filed, the finality
period runs from the filing date of the consent. The
clerk must send one file -stamped copy of the consent to
he superior court with the remittitur.
Formerly Rule 24,-adopters eff. Jae. 1, 2003. Renumber -
Rule R264 and amender,, of. Jan. 1, 20OZ As
mended, eff. Jan. 1, 2009.)
Advisory Committee Comment
Subdivision (b). As used in subdivision (b)(1),
"decision" includes all interlocutory orders of the
Court of Appeal. (See Advisory Committee -Com-
ment to rule 8.500(a) and (e).) This provision
addresses the finality of decisions in civil appeals and,
through a cross-reference in rule 8.470, in juvenile
appeals. See rule 8.366 for provisions addressing the
finality of decisions in proceedings under chapter 3,
relating to criminal appeals; rule 8.387 for provisions
addressing finality. of decisions under chapter 4,
relating to habeas corpus proceedings; and rule 8.490
for provisions addressing the finality ofdecisionsin
proceedings under chapter 7, relating to writs of
mandate, certiorari, and prohibition.
Subdivision (b)(3) provides that a postfiling deci-
sion of the Court of Appeal to publish its opinion in
whole under rule 8.1105(c) or in part under rule
8.1160(a) restarts the 30-day finality period. This
provision is based on rule 40-2 of the United Stales
Circuit Rules (9th CSr.). It is .intended to allow
parties sufficient timpto petition the Court of Appeal
for rehearing and/or the Supreme Court for review —
and to allow potential amici curiae sufficient time to
express their views —when the Court of Appeal
changes the publication status of an opinion. The
rule thus recognizes that the publication status of an
Opinion may affects party's decision whether to file a
petition for rehearingand/or a petition for review.
- OFFICIAL FORMS,
sien and before its decision becomes final in that Mandatary and optional Forms adopted and
court, the finality period runs from the filing date of 'approved by the Judicial Council are set out in
the Modificaorder fortion
ionpubofdecisn. West's Califomia Judicial Council-Fonns Pam-
phlet.
620
Ruu
(a) power to"it
(I) On petiti<
reviewing court
that is not final i
(2) An order.
decision is final
date of finality,
next day the etc
(b) Petition an
-(1) A party'
rehearingwitbi
(A) The
(B) A pu
period unde
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(C) A mt
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tions.
RULE 8.532. FILING, FINALITY, AND
MODIFICATION OF DECISION
(a) Filing the decision
The Supreme Court clerk must promptly file- all
opinions and orders issued by the court and promptly
send copies showing the filing date to the parties and,
when relevant, to the lower court or tribunal.
(b) Finality of decision
(1) Except as provided in (2), a Supreme Court
decision is final30 days after filing unless:
(A) The court orders a shorter period; or
(B) Before the 30-day period or any extension
expires the court orders one or more extensions,
not to exceed a total of 60 additional days.
(2) The following Supreme Court decisions are
final on filing:
(A) The denial of a petition for review of a
Court of Appeal decision; -
(B) A disposition ordered under rule 8.528(b),
(d), or (e);
(C) The denial of a petition for a writ within the
court's original jurisdiction without issuance of an
alternative writ or order to show cause; and
(D) The denial of a petition for writ of superse-
deas.
(c) Modification of decision
The Supreme Court may modify a decision as provid-
ed in rule 8.264(c).
(Formerly Rule 29.4,adopted, eff. Jan. 1, 2003, Renum-
bered Rule 8.532 and amended; eff. Jan. 1, 2007)
Advisory Committee Comment
Subdivision (b). Subdivision.(b)(2)(A) recognizes
the general rule that the denial of a petition for
review of a Court of Appeal decision is final on filing.
Subdivision (b)(2)(A)-(D) recognizes several addi-
tional types of Supreme Court decisions That are final
on filing. Thus (b)(2)(B) recognizes that a dismissal,
a transfer, and a retransfer under (b), (d), and (e),
respectively, of rule 8.528 are decisions final on
A remand under rule 8.528(c)-is not a decision final
on filing because it is not a separately filed order;.
rather, as part of its appellate judgment at the end of
its opinion in such cases the Supreme Court simply
orders the cause remanded to the Court of Appeal
for disposition of the remaining issues in the appeal
Subdivision (b)(2)(C) recognizes that an order
denying a petition for a writ within the court's original
.jurisdiction without issuance of an alternative writ or
order to show cause is final -on filing. The prevision
reflects the settled Supreme Court practice, since at
least 1989, of declining to file petitions for rehearing
in such matters. (See, e.g., In re Hayes (S004421)
Minutes, Cal. Supreme Ct., July 28, 1989 ["The
563
motion to vacate this com't's order of May 18, 1989
[denying a petition for habeas corpus without opin-
ion] is denied. Because the California Rules of
Court do not authorize the filing of a petition for
rehearing of such an order, the alternate request to
Consider the matter as a petition for rehearing is
denied.").)
Subdivision (b)(2)(D) recognizes that an order
denying a petition for writ of supersedeas is final on
filing. _
RuLc 8.536. REHEARING
(a) Power to order rehearing
The Supreme Court may order rehearing as provided
in ruse 8.268(a). '
(b) Petition and answer "
A petition for rehearing and any answer must comply
with rule 8.268(b)(1) and (3). Any answer to the
petition must be served and filed within eight days after
the petition is filed. Before the Supreme Court deci-
sion is final and for good cause, the Chief Justice may
relieve a party from a failure to file a timely petition or
answer.
(c) Extension of time
The time for granting or denying a petition for
rehearing in the Supreme Court maybe extended under
rule 8.532(b)(1)(B). If the court does not rule on the
petition before the decision is final, the petition is
deemed denied.
(d) Determination of petition
An order granting a. rehearing must be signed by at
least four justices; an order denying rehearing may be
signed by the Chief Justice alone.
(e) Effect of granting rehearing
Anorder granting a rehearing vacates the decision
and any opinion filed in the case and sets the cause at
large in the Supreme Court.
(Formerly Rule 29.5, adopted, eff. Jan. 1, 2003. As
amended, eff. Jan: 1, 2004. Renumbered Rule 8,536 and
amended, eff. Jan, 1, 2007.)
RuLr 8.540. REMITWUR
(a) Proceedings requiring issuance of remittitur
The Supreme Court must issue a remittitur after a
decision in:
(1) A review of a Court of Appeal decision; or
(2) An appeal from a judgment of death or in a
cause transferred to the court under rule.8.552.
(b) Clerk's duties (1) The clerk must issue a remittitur when a
decision of the court is final. The remittitur is
-deemed issued when the clerk enters it in the record.
(2) After review of a Court of Appeal decision, the
Supreme Court clerk must address the remittitur to
the Court of Appeal and send that court two copies of -
EXHIBIT B
WATER REPLENISHMENT DISTRICT
OF SOUTHERN CALIFORNIA
ADMINISTRATIVE CODE
Revised
January, 2011
8osrd of Directors
WillardH. Murray, Jr., Division i
Robert Katherman, Division 2
tlllian Kawasaki, Division 3
Sergio. Calderon, Division 4
Albert Robles, Division 5
General Manager, Robb Whitaker, RE:
19 CLAIMS AGAINST THE DISTRICT.
The District's claims presentation procedure shall govern all claims against the District for
money or damages which are excepted by Government Code Section 905, and which are
not governed by any other statutes or regulations expressly relating to such claims.
19.1 Claims Presentation Procedures
19.1.1 Claims against the District
This claims presentation procedure shall govem all claims against the District
for money or damages which are accepted by Government Code Section 905,
and which are not governed by any other statutes or regulations expressly
relating to such claims.
19.1.2 Claim Prerequisite
All persons or entities which have any claim for money or damages against the
District shall first file a claim in accordance with the procedures set forth herein
as a prerequisite to the filing of any lawsuit against the District.
19.1.3 Accrual of Cause of Action
For the purpose of computing the time limits prescribed herein, the date of the
accrual of a cause of action to which a claim relates is the date upon which the
cause of action would be deemed to have accrued within the meaning of the
statute of limitations which would be applicable to a cause of action based
upon such claim.
19.1.4 Contents and Presentation of Claim
A claim shall be presented by the claimant or by a person acting on his or her
behalf and shall show all of the following:
a) The name and post office address of the claimant.
b) The post office address the person presenting the claim desires the
notices to be sent.
c) The date, place and other circumstances of the occurrence or
transaction, that give rise. to the claim asserted.
d) A general description of the Indebtedness, obligation, injury, damage or
loss incurred so far as it may be known at the time of presentation of
the claim.
e) The name or names of. the District employee or employees causing the
injury, damage, or loss, if known.
f) The amount claimed if it totals less than ten thousand dollars
($10,000.00) as of the date of presentation of the claim, including the
estimated amount of any prospective injury, damage, or loss, Insofar as
It may be known at the time of presentation of the claim, together with
the basis of computation of the amount claimed. If the amount claimed
Administrative Code -- --
112
Water Replenishment District of Southern California - CCtober 21, 20t 1
exceeds ten thousand dollars ($10,000.00), no dollar amount shall be
included in the claim. However, the claim shall indicate whether
jurisdiction over the claim would rest in municipal or superior court, in,
the event lawsuit is flied on the claim.
g) The claim shall be signed by the claimant or by some person acting on
his or her behalf.
19.1.5 Time for Presentation of Claim
Any claim relating to a cause of action for death or for injury to person or to
personal property or growing crops shall be presented no later than six months
after the accrual of the cause of action. A claim relating to any other cause of
action shall be presented no later than one year after the accrual of the cause
of action.
19.1.6 Amendment of Claims
Any claim may be amended at any time before the expiration of the period
designated in 19.1.5 above, or before final action on such claim is taken by the
Board of Directors, whichever is later. The amended claim must relate to the
same transaction or occurrence that gave rise to the original claim. The
amendment shall be considered a part otthe original .claim for all purposes.
19.1.7 Notice of Insufficlency of Claim
If, in the opinion of the General Manager or such other person designated by
the Board to review claims submitted to the District, a claim fails to comply
substantially with the requirements of this procedure, the District may give
written notice of the insufficiency of such claim within 20 days after
presentation of the claim, which notice shall state with particularity the defects
or omissions in the claim. The Board may not take action on the claim for a
period of 15 days after such notice Is mailed.
19.1.8 Notice of Late Claim
Where a claim which must be presented not later than six months after accrual
of the cause of action is presented after such time without an application for
leave to present late claim, the General Manager or such other person
designated by the Board may, at any time within 45 days after the claim is
presented, give written notice to the person presenting the claim that the claim
was not filed timely and that it is being returned without further action.
19.1.9 Application for Leave to present Late Claim
When a claim that is required to be presented, no later than six months after
the accrual of the cause of action is not presented within such time, the
claimant must make written application to the District for leave to present such
claim.
An Application for Leave to Present Late Claim must be presented to the
District as hereinafter provided within a reasonable time not to exceed one
year after the accrual of the cause of action. The application shall state the
Administrative Code 173
Water Replenishment District of Southern Callfomie - October 21, 2011
reason for the delay in presenting the claim, and the proposed claim shall be
attached to the application.
In computing the one year period within which an Application for Leave to
Present Late Claim must be made, that time during the person who sustained
the alleged injury, damage or loss is a minor shall be counted, but the time
during which he or she is mentally incapacitated and does not have a guardian
or conservator of his or her person shall not be counted.
The Board of Directors shall grant or deny the application for leave to present
late claim within 45 days after it is presented to the District. The claimant and
the District may extend the period within which the Board of Directors is
required to act by written agreement made before the expiration of the 45 day
period.
The Board of Directors shall grant the Application for Leave to Present Late
Claim where one or more of the following is applicable:
a) The failure to present the claim was through mistake, Inadvertence,
surprise or excusable neglect and the District was not prejudiced in its
defense of the claim by the failure to present the claim within the time
required.
b) The person who sustained the alleged injury, damage or loss was a
minor, during all of the time provided for presentation of the claim.
c) The person who sustained the alleged injury, damage or loss was
physically or mentally incapacitated during all of the time provided for
presentation of the claim, and because of such disability failed to
present the claim during such time.
d) The person who sustained the alleged injury, damage or loss died
before the expiration of the time specified for presentation of the claim.
If the Board falls or refuses to act on an Application within the time prescribed
In Section 19.1.2 above, the Application shall be deemed to have been denied
on the 45th day after presentation or, if the period within which the Board is
required to act is extended by agreement pursuant to this Section, the last day
of the period specified in the agreement.
If the Application is denied, the notice of such denial shall include a warning in
substantially the following form:
• "Warning: If you wish to file a court action on this matter, you
must first petition the appropriate court for an order relieving you
from the provisions of Government Code Section 945.4 (Claims
Presentation Requirement). See Government Code Section
946.6. Such petition must be filed with the court within six
months from the date your application for leave to present a late
claim was denied."
Administrative Code
Water Replenishment District of Southern California
114.
October 21, 2011
• "You may seek the advice of an attorney of your choice in
connection with this matter. If you desire to consult with an
attorney you should do so immediately,"
e) If an Application for Leave to Present a Late Claim is granted by the
Board of Directors, the claim shall be deemed to have been presented
to the Board on the day that leave to present the late claim is granted.
19.1.10 District Action on Claim
a) The Board of Directors shall act on a claim within 45 days after the
claim has been presented. If a claim is amended, the Board shall act
on the amended claim within 45 days after the amended claim is
presented.
b) The claimant and the District may extend the period within which the
Board is required to act on the claim by written agreement made (a)
before the expiration of such period; or (b) after the expiration of such
period If an action based on the claim has not been commenced and is
not yet barred by the applicable statute of limitations.
c) If the Board falls or refuses to act on a claim within the time prescribed,
the claim shall be deemed to have been rejected by the Board on The
last day of the period within which the Board was required to act upon
the claim.
d) The Board may act on a claim in one of the following ways:
• If the Board finds the claim is not a proper charge against the
District, it shall reject the claim.
• If the Board finds the claim is a proper charge against the
District and is for an amount justly due, It shall allow the claim.
• If the Board finds the claim is a proper charge against the
District but is for an amount greater than that which is justly due,
It shall either reject the claim in its entirety, or allow it in the
amount justly due and reject it as to the balance.
• If the District's liability or the amount justly due is disputed, the
Board may reject the claim or may settle the claim.
e) The District shall pay the amount allowed on the claim or in
compromise of the claim in the same manner as it the claimant had
obtained a final judgment against the District for that amount. The
District may require the claimant to execute a release in favor of the
District as a condition of allowing or compromising the claim. If an
agreement for payment of the claim in installments is made, the District
may, in its discretion, prepay any one or more installments or any part
of an installment. Any agreement for payment of a claim in more than
ten equal annual installments must be approved by a court of
competent jurisdiction.
Administrative Code
Water Replenishment District of Southern California
115
October 21, 2011
19.1.11 Delivery or Mailing of Claim, Amendment, or Application
Any notice of a Hoard action with respect to a claim or application for leave to
present a late claim shall be given by either of the following methods:
a) Personally delivering the notice to the person presenting the claim or
making the application; or
b) Mailing notice to the address, if any, stated in the claim or application
as the address to which the person presenting the claim or making the
application desires notices to be sent or, it no such address is stated in
the claim or application, by mailing the notice to the address, if any, of
the claimant as stated in the claim or notification.
No notice need by given where the claim or application falls to state either an
address to which the person presenting the claim or making the application
desires notices to be sent or an address of the claimant.
Where notice from the District is given by mail, the notice shall be mailed in
the manner prescribed herein, and deposited in the United States Post Office,
or a mailbox, sub -post office, substation, or mail chute, or other likely facility
regularly maintained by the government of the United States, in a sealed
envelope, properly addressed, with postage paid. The notice shall be deemed
to have been presented and received at the time of the deposit. Proof of
mailing may made in the manner prescribed by Section 1013a of the Code
of Civil Procedure. The District may include in any written agreement to which
it is a party; provisions governing the presentation of any claims arising out of
or related to that agreement and the consideration and payment of such claim.
Such agreement may incorporate by reference. these claim presentation
procedures and may include a requirement that a claim be presented and
acted upon as a prerequisite to suit thereon.
The District may establish a committee of not less than three of its members to
perform the functions of the Board regarding claims presented to the District.
The District may authorize an employee of the District to perform those
functions that the Board requires under this procedure, but such employee
may only allow, compromise or settle a claim against the District if the amount
to be paid pursuant to the allowance, compromise or settlement does not
exceed five thousand dollars ($ 5,000.00):
19.1.12 Prohibition against Suit In Absence of Presentation of Claim
No suit for money or damages may be brought against the District on a cause
of action for which a claim is required to be presented in accordance with
these claims presentation procedures or with the Tort Claims Act (Government
Code Sections 900 et seq.) until a written claim therefore has been presented
to the District and has been acted upon by the Board of Directors, or has been
deemed to have been rejected by the Board, in accordance with this
procedure and with the Tort Claims Act.
Administrallve Code
Water Replenishment District of southern California
116
October 21, 2011
Any suit brought against the District on a cause of action where a claim is
required to be presented must be commended:
a) If written notice of Board action on the claim is given by the District, not
later than six .monthsafter the date such notice is personally delivered
or deposited in the mail; or
b) If written notice of Board action on the claim is not given by the District
within two years from the accrual of the cause of action
Administrative code 117
Water Replentshmant District of Southern California _ October 21, 2011"
RECEIVED
REO`IVED JUN 0 7 2012
JUN 11. 2012 CITY ADMINISTRATION
CLEi�Nc'SLQF�I STAFF REPORT
CITY
MUNITY SERVICES & WATER DEPARTMENT/n
DATE: June 6; 2012
TO: Honorable Mayor and City Council
41/
FROM: Samuel Kevin Wilson, Director of Community Services & Water
RE: Tolling Agreement between the City of Vernon and the Water Replenishment
District of Southern California
. In 2010 the cities of Downey, Cerritos, and Signal Hill filed a petition challenging the Water
Replenishment District of Southern California's (WRD) "replenishments assessments imposed since 2007.
The subject challenge was based on the contention that the Water Replenishment District of Southern California
failed to act in accordance with the provisions of Proposition 218. Proposition 218 requires local governments to
have a vote of affected property owners for any new or increased assessment before it can be levied.
Moreover, on April 25, 2011, the Court sided with the cities of Downey, Cerritos, and Signal Hill and
issued an order invalidating. the assessments for the years 2007 through 2010. However, in review of the
"Reporter's Transcript of Proceedings," dated April 25, 2011, Judge James C. Chalfant ruled that the Water
Replenishment District of Southern California does not have to comply with the Judgment until the damages
case is over.
In order for the City of Vernon to preserve its potential refund claim without filing litigation and/or stop
paying the replenishment assessment at this time, it is important to enter into a Tolling Agreement with the
Water Replenishment District of Southern California. The City Attorney's office has prepared a Tolling
Agreement between the City of Vernon and the Water Replenishment District of Southern California. It is my
recommendation that the City Council approve the Tolling Agreement between the City of Vernon and the
Water Replenishment District of Southern California at the June 19, 2012 City Council meeting. The effective
date of the Tolling Agreement will be July 1, 2012. Thank you.
SKW/sr
Enclosures
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
I04l1.490glk"
CITY OF CERRITOS,
PLAINTIFF,
VS.
WATER REPLENISHMENT DISTRICT,
DEFENDANT.
HON. JAMES C. CHALFANT, JUDGE
NO. BS 128 136
REPORTER'S TRANSCRIPT OF PROCEEDINGS
MONDAY, APRIL 25, 2011
APPEARANCES:
FOR THE PLAINTIFF
MC CORMICK, KIDMAN & BEHRENS
BY: DAVID BOYER, ESQUIRE
PATTY J. QUILIZAPA, ESQUIRE
650 TOWN CENTER DRIVE
SUITE 100
COSTA MESA, CALIFORNIA 92626
(714) 755-3100
FOR THE DEFENDANT: HARRIS & ASSOCIATES
BY: JOHN W. HARRIS, ESQUIRE
915 WILSHIRE BOULEVARD
SUITE 1820
LOS ANGELES, CALIFORNIA 90017
(213) 489-9833
JEANIE CAMPBELL, CSR NO. 11859
OFFICIAL REPORTER
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THE PETITION CONCERNS THE APPLICATION OF
PROP 218, SPECIFICALLY ARTICLE X D OF THE CALIFORNIA
CONSTITUTION WHICH REQUIRES THAT IN CERTAIN PROPERTY
RELATED TAXES, CHARGES, OR ASSESSMENTS THAT CERTAIN
PROCEDURES APPLY WITH RESPECT TO NOTICE AND THE ABILITY TO
VOTE AGAINST AND VOTE DOWN A CHARGE AND A PROPORTIONALITY
REQUIREMENT, SUBSTANTIVELY REQUIRED ALSO BY ARTICLE XIII D.
LET ME ALSO SAY THAT I VIEW THIS AS A
QUASI -LEGISLATIVE DECISION, THAT IS, THE IMPOSITION OF THE
REPLENISHMENT ASSESSMENT BY THE WATER DISTRICT, AND AS
SUCH, THERE SHOULD HAVE BEEN A RECORD PREPARED IN THIS
CASE. NOBODY PREPARED A RECORD.
THE PETITIONERS PRESENTED EVIDENCE WHICH,
FRANKLY, I ASSUMED WOULD CONSTITUTE THE RECORD, ALTHOUGH I
DON'T KNOW THAT FOR CERTAIN BECAUSE I DIDN'T COMPARE ALL
OF THE ITEMS OF EVIDENCE TO WHETHER OR NOT THEY WOULD HAVE
BEEN BEFORE THE WATER DISTRICT AT THE TIME IT COMPOSED THE
ASSESSMENT.
IN ANY EVENT, NOBODY COMPLAINED ABOUT THE
PETITIONERS' EVIDENCE ON THAT GROUND. THERE WERE
OBJECTIONS MADE TO IT ON AN EVIDENTIARY BASIS, WHICH I DID
RULE UPON, ALTHOUGH IF IT CONSTITUTES THE RECORD, THOSE
EVIDENTIARY RULINGS WOULD BE IRRELEVANT.
BUT BECAUSE EXTRA —RECORD EVIDENCE IN A
QUASI —LEGISLATIVE TRADITIONAL MANDAMUS CASE IS GENERALLY
INADMISSIBLE, I DID NOT CONSIDER, ALTHOUGH I READ THE
DECLARATIONS OF THEODORE A. JOHNSON WHICH BASICALLY
EXPLAINS WHY THE WATER DISTRICT TREATS THE CENTRAL AND
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CASE.
THE DISTINCTION IS BASED ON CAPACITY; THAT
IS, THE WELL OWNERS ARE PUMPING AS A BUSINESS OWNER RATHER
THAN AS A PROPERTY OWNER. THOSE KINDS OF DISTINCTIONS
WERE REJECTED IN PAJARO -- ACTUALLY, PAJARO INITIALLY
ACCEPTED THOSE KINDS OF DISTINCTIONS, AND THEN AFTER BIG
HORN DECIDED THAT THE SUPREME COURT'S ANALYSIS WOULD MEAN
THEY ARE NOT WELL TAKEN, EXTRACTION OF WATER IS AN
ACTIVITY INTIMATELY CONNECTED WITH PROPERTY OWNERSHIP.
THEN THERE IS THE ISSUE OF, WELL, DID THE
CITIES OWN THE PROPERTIES ON WHICH THE WELLS WERE LOCATED?
ULTIMATELY AS THE CITIES ARGUE THAT WATER EXTRACTION
RIGHTS AREA FORM OF TENANCY IN THE PROPERTY; THEY DON'T
HAVE TO OWN THE PROPERTY IF THEY HAVE THE RIGHT TO EXTRACT
THE WATER. THAT IS A REAL PROPERTY TENANCY, ONE OF THE
BUNDLES OF RIGHTS THAT YOU GET WHEN YOU OWN PROPERTY, AND
YOU CAN ASSIGN THOSE RIGHTS. WHETHER THEY WERE ASSIGNED
TO THE CITIES BY SOME PROPERTY OWNER IS REALLY NOT
RELEVANT; THEY ARE CERTAINLY A TENANT WITH RESPECT TO THE
RIGHTS TO PUMP WATER FROM THE GROUND.
THEN SINCE THE ARTICLE XIII D APPLIES, DID
THE W.R.D., THE WATER REPLENISHMENT DISTRICT -- IT IS
UNDISPUTED THAT THEY DIDN'T COMPLY WITH THE PROCEDURAL
PROTECTIONS OR PERFORM ANY PROPORTIONALITY ANALYSIS BEFORE
ADOPTING THE R.A.S THAT ARE AT ISSUE HERE, AND SO THE
TENTATIVE IS TO GRANT.
WITHOUT THE COURT OFFERING ANY OPINION ON
THE PRINCIPAL ISSUE HERE WHICH IS -- WELL, IT IS NOT THE
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PAJARO, THEY SAY WE ARE NOT GOING TO SAY THAT ALL DOMESTIC
USE OF WATER SHOULD BE SUBJECT TO XIII D. THEN THEY START
TALKING ABOUT THE CONNECTION FEE VERSUS DELIVERY FEE.
ONE OF THE THINGS THAT WE THOUGHT
DISTINGUISHES THIS CASE FROM PAJARO WAS THAT IN THAT CASE,
ALL OF THE PUMPERS ACTUALLY OWNED THE PROPERTY WHICH WE
THOUGHT WAS VERY IMPORTANT TO THE INCIDENT OF OWNERSHIP.
ALSO, THEY LOOK TO THE PARCEL. WHAT
HAPPENED IN THAT CASE, THE AGENCY LOOKED TO THE PARCEL
OWNERS AND ACTUALLY ASSESSED THE PARCELS, THAT IS THE KEY
ELEMENT OF PROP XIII BECAUSE IT SAYS YOU HAVE TO SEND
NOTICE TO PARCEL OWNERS; THE ASSESSMENTS HAVE TO BE MADE
TO THE PARCELS. IN THAT CASE, THAT'S WHAT WAS HAPPENING.
IN THIS CASE, THERE IS NO ASSESSMENT ON THE
PARCEL OWNERS; IT IS AN ASSESSMENT BASED UPON THE
EXTRACTION OF WATER. WE THOUGHT THAT WAS A KEY DISTINCTION.
ALSO IN THAT CASE, YOU'RE TALKING ABOUT
RESIDENTS USING WATER. THESE PEOPLE WERE PUMPING WATER
FOR THEIR OWN CONSUMPTION. IN THIS CASE, BASICALLY THE
CITIES ARE RESELLERS OF WATER; THEY'RE NOT CONSUMING THE
WATER THEMSELVES, AND OBVIOUSLY, THERE'S NO EVIDENCE TO
INDICATE THAT THEY ARE.
WE THINK THAT THIS CASE KIND OF TURNS,
REALLY, XIII D ON ITS HEAD BECAUSE XIII (D) WAS PASSED TO
PROTECT THE RESIDENTS FROM CITIES AND OTHER AGENCIES. IN
THIS CASE, THE CITIES ARE NOW SAYING, OH, BUT WE'RE THE
BENEFICIARIES OF XIII (D). YOU'VE GOT A BIG DISTINCTION
HERE BECAUSE THEY ARE REALLY THE RETAILERS OF IT. THEY
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ON EACH PARCEL. HOW IN THE WORLD IS W.R.D. GOING TO
CALCULATE THAT? IT IS ABOUT PUMPING RIGHTS THAT ARE NOT
CONTIGUOUS OR TIED TO THE PARCEL ITSELF.
THEN THE QUESTION BECOMES, YOU HAVE TO SEND
NOTICE TO THE PARCEL OWNERS. UNDER THE LAW, W.R.D. IS NOT
REQUIRED TO EVEN SEND NOTICE TO THESE CITIES BECAUSE
THEY'RE NOT PARCEL OWNERS.
SO YOU HAVE THIS HUGE CONUNDRUM; W.R.D.
WOULD BE REQUIRED TO SEND NOTICE TO PARCEL OWNERS THAT,
ONE, DON'T EVEN PAY THE FEE, AND SECONDLY, DON'T CARE
ABOUT IT BECAUSE THEY ARE NOT AFFECTED BY IT IN ANY SENSE
OF THE WORD. IT IS REALLY THE PUMPERS WHO ACTUALLY OWN
STATE -DESIGNATED WELLS IN TERMS OF HOW THEY'RE PAID
PURSUANT TO THE WATER CODE.
SO THAT'S THE IMPRACTICALITY OF THE
IMPOSITION OF XIII (D).
THE COURT: I THOUGHT THE CITIES OWNED THE WELLS.
MR. HARRIS: THEY DON'T OWN THE WELLS, THEY OWN THE
LAND. THE QUESTION IS, HOW DO YOU DISTINGUISH THE RIGHT
TO PUMP WATER VERSUS THE UNDERLYING LAND? IF YOU TALK
ABOUT INCIDENT OF OWNERSHIP, ARE YOU, IN FACT, SAYING A
WELL IN AND OF ITSELF, THE RIGHT TO PUMP WATER IS AN
INCIDENT OF OWNERSHIP? WE WOULD SUBMIT --
THE COURT: OWNERSHIP OF WELLS IS AN INCIDENT OF
PROPERTY OWNERSHIP. I MEAN, I THINK THERE ARE TWO ANSWERS
TO THAT ISSUE; ONE, I DON'T BELIEVE THAT THE W.R.D. MADE
ANY FINDINGS THAT THESE WELL OWNERS WERE NOT OWNERS OF
PROPERTY FOR PURPOSES OF THE RA SUCH THAT THE RA COULD BE
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REAL PROPERTY?
COUNSEL?
MS. QUILIZAPA: YOUR HONOR, TWO THINGS. YOU DID
MAKE A POINT ABOUT W.R.D. NOT MAKING A FINDING AS TO
WHETHER THE CITIES OWN THE PROPERTIES. NO EVIDENCE ON
EITHER SIDE HAS BEEN SUBMITTED AS TO THAT. WE NOW CONCEDE
THAT THE CITIES DON'T OWN THE PROPERTY ITSELF. W.R.D. HAS
THE BURDEN IN THIS CASE OF SHOWING COMPLIANCE.
THE COURT: YES.
MS. QUILIZAPA: THEY DID NOT GO THROUGH THE
ANALYSIS OF WHETHER THE RA APPLIED BASED ON PROPERTY
OWNERSHIP OR NOT. THERE ARE TWO PROPERTY RIGHTS THAT ARE
AT ISSUE, THE OWNERSHIP OF THE LAND AND THE OWNERSHIP OF
THE WELLS, AS WELL AS THE OWNERSHIP OF THE PROPERTY RIGHTS
TO EXTRACT GROUND WATER, WHICH WAS SPECIFICALLY LOOKED AT
IN PAJARO.
ACTUALLY, THEY CITED TO THE WEST COAST BASIN
ADJUDICATION AS EVIDENCE OF THE RIGHT TO EXTRACT GROUND
WATER AS PROPERTY RIGHTS SUBJECT TO ARTICLE XIII (D).
THERE IS ANOTHER MISCHARACTERIZATION OF THE
W.R.D. RIGHTS TO GO AFTER THE PUMPERS AND THE PROPERTY
ITSELF THAT HAS NOT BEEN CLARIFIED HERE. W.R.D. CITED TO
WATER CODE SECTION 60339 IN THEIR OPPOSITION, AND THAT
SECTION ACTUALLY ALLOWS FOR W.R.D. TO OBTAIN AN INJUNCTION
RESTRAINING THE PUMPERS FROM THE•GROUND WATER PRODUCING
FACILITY ITSELF AND NOT ALLOWING THE PUMPERS TO OPERATE
THAT WELL. SO TO SAY THAT THE COURT: INJUNCTION FOR WHAT REASON?
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a:]
ONE WAY OR ANOTHER ON THAT.
MR. BOYER: BUT THAT'S MY POINT; IT IS THEIR
BURDEN. GOING BACK TO THE CASE WHICH SHE CITED, PAJARO,
WHICH SPECIFICALLY MENTIONED THE WEST BASIN AND THE
ADJUDICATION, AND OF COURSE, THE ADJUDICATION OF THE
CENTRAL BASIN WHICH ARE PARALLEL ADJUDICATIONS; THESE ARE
DEFINED WATER RIGHTS.
THE COURT: YES. YOU HAVE THE RIGHT TO THE WATER;
YOU HAVE THE RIGHT TO PUMP IT.
MR. BOYER: RIGHTS TO PUMP THE WATER; THEY'RE
TRANSFERABLE, THEY ARE DEFINED, VESTED AS REAL PROPERTY
RIGHTS AS ANY RIGHT IN THE LAND ITSELF.
MR. HARRIS: YOUR HONOR, I MIGHT ADD, WHERE DO
THESE RIGHTS SPRING FROM? THEY CAME FROM THE ADJUDICATION
BACK IN THE 1960S THAT GAVE SPECIFIC PEOPLE THE RIGHT TO
PUMP WATER. THERE IS NOTHING IN THERE SAYING THAT'S A
CREATION OF A TENANCY IN LAND; JUST THE RIGHT TO PUMP THE
WATER FROM IT.
THE COURT: THEY OWN AND PUMP THE WATER. YOU CAN'T
EXTRACT WATER YOU DON'T OWN, I DON'T THINK.
MR. HARRIS: I DON'T THINK THEY OWN THE WATER; NO
ONE HAS A RIGHT TO OWN IT. THEY HAVE A RIGHT TO EXTRACT
IT PURSUANT TO THE WATER MASTER'S GUIDELINES; THEY DON'T
OWN THE UNDERLYING WATER.
THE COURT: YOU SELL, IT DON'T YOU? HOW COULD YOU
SELL SOMETHING YOU DON'T OWN?
MS. QUILIZAPA: YOUR HONOR, PAJARO SPECIFICALLY
ADDRESSED THAT ISSUE WHETHER [INAUDIBLE] -- IT DOES NOT
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IS A TENANCY IN LAND AS DEFINED IN SECTION 2 (G).
NOW, IF I'M WRONG ON THAT, THEN MY FALLBACK
IS YOU HAVE THE BURDEN OF PROOF TO SHOW THAT IT'S NOT A
TENANCY IN REAL PROPERTY, AND YOU HAVE NOT SHOWN THAT, AND
YOU DIDN'T PURPORT TO RELY ON THAT ARGUMENT IN ISSUING THE
RA ANYWAY, THAT IS, IN DETERMINING THAT THE ARTICLE XIII
(D) DOES NOT APPLY.
BUT LOOK, I THINK THAT IS THE WEAK LINK IN
THE PETITIONERS' POSITION. THE ARGUMENT THAT THEY ARE
RETAILERS SELLING THE WATER I DON'T THINK MATTERS. THEY'RE
BEING CHARGED AN EXTRACTION FEE FOR PUMPING WATER; WHAT
THEY DO WITH IT AFTER THAT HAS NOTHING TO DO WITH THE FEE
THAT THEY ARE BEING CHARGED, IF THEY WERE BEING CHARGED
FOR RETAILING WATER, THEN YOU MIGHT HAVE AN ARGUMENT UNDER
RICHMOND THAT IT IS NOT ASSOCIATED WITH THE LAND, INCIDENT
TO THE LAND.
MR. HARRIS: THAT'S SORT OF WHERE RICHMOND GOES TO
WHETHER THAT IS INCIDENT, AND RICHMOND KIND OF WENT
SIDEWAYS AS WELL ON THE PARCEL OWNERSHIP, AND THAT IS WHY
WE SAID -- THAT WAS SO INSTRUCTIVE BECAUSE RICHMOND DID
START TALKING ABOUT WHETHER YOU WERE, QUOTE, OWNERS OF THE
LAND BY IDENTIFICATION OF THE PARCEL.
THE COURT: BUT YOU CAN IDENTIFY THE WELLS, AND IF
THEY ARE A TENANCY IN PROPERTY, THEN THAT ARGUMENT FALLS
AWAY, THE IDENTIFICATION ARGUMENT FALLS AWAY. SO REALLY,
IF THEY ARE NOT A TENANCY IN REAL PROPERTY, THEN THE XIII
(D) DOES NOT APPLY.
BUT YOU HAVE NOT MET YOUR BURDEN OF PROOF TO
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FOLLOW IN COMPLYING WITH THE WRIT, BUT I DON'T THINK YOU
CAN ARGUE THAT 218 DOES NOT APPLY TO THE REPLENISHMENT
ASSESSMENTS THAT HAVE BEEN IMPOSED.
MR. HARRIS: THE OTHER QUESTION I HAVE THEN, YOUR
HONOR, IN TERMS OF REMEDIES, YOUR TENTATIVE SAYS THAT TO
VACATE BASICALLY THE RA'S FOR THE LAST FOUR YEARS. THE
QUESTION WE WOULD HAVE THEN IS ONCE IT IS VACATED, WHAT
ARE OUR REMEDIES IN TERMS OF -- OBVIOUSLY, WE HAVE
COLLECTED MONEY WITH THE RA'S FOR THE LAST FOUR YEARS. IT
SORT OF OPENS PANDORA'S BOX IN TERMS OF HOW YOU UN -RING
THAT BELL.
THE COURT: WHAT ABOUT THAT? WHAT ARE YOU SEEKING?
MS. QUILIZAPA: WELL, YOUR HONOR, AT THIS STAGE WE
ARE SEEKING A WRIT [INAUDIBLE]. WE DO HAVE A SECOND PHASE
WHICH THE RESPONDENTS AND THE PETITIONERS SOUGHT TO SEVER
OR BIFURCATE WITH THE TRIAL COURT. THERE IS A COMPLAINT
FOR DAMAGES SEPARATE, NOT BEFORE THIS COURT.
THE COURT: YOU HAVE A COMPLAINT FOR DAMAGES?
MR. BOYER: YES, YOUR HONOR. THE COMPLAINT ALSO
HAS TO DO WITH A COMPLETELY DIFFERENT -- IN ADDITION TO
THE -- IT HAS TO DO WITH THE VIOLATIONS OF WRD'S ACT ALSO.
THE COURT: YOU MEAN WITH THE RESERVES? USING IT
FOR THE BOY SCOUTS?
MR. BOYER: YES. BUT AS FAR AS THE 218 PORTION,
THE COMPLAINT PROBABLY HAS A LOT TO DO WITH WHAT W.R.D.
DOES. SOME OF IT HAS TO DO WITH WHAT W.R.D. DOES IN
RESPONSE TO THE WRIT.
THE COUV';' OKAY. I DIDN'T KNOW YOU HAD OTHER
1 16
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT 85 HON. JAMES C. CHALFANT, JUDGE
CITY OF CERRITOS,
PLAINTIFF,
VS. N0, BS 128 136
WATER REPLENISHMENT DISTRICT,
DEFENDANT.
REPORTER'S CERTIFICATE
1, JEANIE CAMPBELL, OFFICIAL REPORTER OF THE
SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS
ANGELES, DO HEREBY CERTIFY THAT THE FOREGOING PAGES 1 THROUGH
17, INCLUSIVE, COMPRISE A FULL, TRUE, AND CORRECT TRANSCRIPT
OF THE PROCEEDINGS TAKEN IN THE MATTER OF THE ABOVE -ENTITLED
CAUSE ON MONDAY, APRIL 25, 2011.
DATED THIS 28TH DAY OF APRIL . 2011.
JEMNIE CAMPBELL, CSR MO. 11859
OFFICIAL REPORTER.
REC E'! %I;'" C°.
�pF VERB
JUN 1 1 2012
CITY CLERK'S OFFICE
CJ'CLi MOJ
COMMUNITY SERVICES & WATER DEPARTMENT
OFFICE MEMORANDUM
TO: Mark Whitworth, City Administrator
FROM: Samuel Kevin Wilson Director of Community Services and Water
DATE: June 6, 2012
SUBJECT: Tolling Agreement between the City of Vernon and the Water Replenishment
District of Southern California
In 2010 the cities of Downey, Cerritos, and Signal Hill filed a petition challenging the Water
Replenishment District of Southern California's (WRD) "replenishments assessments" imposed since 2007.
The subject challenge was based on the contention that the Water Replenishment District of Southern California
failed to act in accordance with the provisions of Proposition 218. Proposition 218 requires local governments to
have a vote of affected property owners for any new or increased assessment before it can be levied. On April
25, 2011, the Court sided with the cities of Downey, Cerritos, and Signal Hill and issued an order invalidating
the assessments for the years 2007 through 2010. However, in review of the "Reporter's Transcript of
Proceedings," dated April 25, 2011, Judge James C. Chalfant ruled that the Water Replenishment District of
Southern California does not have to comply with the Judgment until the damages case is over.
In order for the City of Vernon to preserve its potential refund claim without filing litigation and/or stop
paying the replenishment assessment at this time, it is important to enter into a Tolling Agreement with the
Water Replenishment District of Southern California. The City Attorney's office has prepared a Tolling
Agreement between the City of Vernon and the Water Replenishment District of Southern California. A Staff
Report is herein attached recommending that the City Council approve the Tolling Agreement between the City
of Vernon and the Water Replenishment District of Southern California at the June 19, 2012 City Council
meeting. The effective date of the Tolling Agreement will be July 1, 2012. My staff will have the subject
Agreement executed upon Council approval. Thank you.
SKW/sr
Enclosures
P.VSmd Sm yDOCWMr\W=TaIImg City Adminishalord
CITY ATTORNEY'S OFFICE
INTER -DEPARTMENT MEMORANDUM
DATE: May 29, 2012
TO: Samuel Kevin Wilson, Director of Community Services
& Water
FROM: Willard G. Yamaguchi, Chief Deputy City Attorneyf.��r 1
RE: Tolling Agreement between the City of Vernon and the Water
Replenishment of Southern California
I have received and reviewed the Memorandum dated May 8, 2012, and the
attachments thereto.
Attached is the drafted tolling agreement for the above -referenced
matter.
Also, please provide Exhibits A and B which are referenced in pages 3
and 4 of the drafted agreement.
19►4YET, 1
Enclosures
MAY 0 9 2012
My CITY ATTORNEY DEPT.,
•LYYLY IN•J
COMMUNITY SERVICES.& WATER DEPARTMENT
OFFICE MEMORANDUM
TO: Willard Yamaguchi, Interim City Attorney
FROM: Samuel Kevin Wilson, Director of Community Services and Water
DATE: May 8, 2012
SUBJECT: Request to Prepare a Tolling Agreement between the City of Vernon and the
Water Replenishment of Southern California
As you are aware, in 2010 the cities of Downey, Cerritos, and Signal Hill filed a petition challenging
the Water Replenishment District of Southern California's "replenishments assessments" imposed since 2007.
The subject challenge was based on the fact that the Water Replenishment District of Southern California failed
to act in accordance with the provisions of Proposition 218. Proposition 218 requires local governments to have
a vote of affected property owners for any new or increased assessment before it can be levied.
Moreover, on April 25, 2011, the Court sided with the cities of Downey, Cerritos, and Signal Hill and
issued an order invalidating the assessments for the years 2007 through 2010. However, in review of the
"Reporter's Transcript of Proceedings; dated April 25, 2011, Judge James C. Chalfant ruled that WRD does
not have to comply with the Judgment until the damages case is over.
In order for the City of Vernon to preserve its potential refund claim without filing litigation and/or stop
paying the replenishment assessment at this time, it is important to enter into a Tolling Agreement with the
Water Replenishment District of Southern California. Attached herewith is a sample Tolling Agreement for
your,review. Please prepare a Tolling Agreement between the City of Vernon and the Water Replenishment
District of Southern California, The effective date will be June 9, 2012. Thank you.
SKW/sr
Enclosures .
CC: City Administrator
F:\SmMSm NyDxunm WRD,W RgAmb�A�wniTolling Agtt tAepm m&c
RECEIVED
D JUN 0 7 2012
R�
CITY ADMINISTRATION
JuN > i STAFF REPORT
CITY CLE*SAAEMUNITY SERVICES & WATER DEPARTMENTjn
DATE: June 6, 2012
TO: Honorable Mayor and City Council
FROM: Samuel Kevin Wilson, Director of Community Services & Water
RE: Tolling Agreement between the City of Vernon and the Water Replenishment
District of Southern California
In 2010 the cities of Downey, Cerritos, and Signal Hill filed a petition challenging the Water
Replenishment District of Southern California's (WRD) `replenishments assessments" imposed since 2007.
The subject challenge was based on the contention that the Water Replenishment District of Southern California
failed to act in accordance with the provisions of Proposition 218. Proposition 218 requires local governments to
have a vote of affected property owners for any new or increased assessment before it can be levied.
Moreover, on April 25, 2011, the Court sided with the cities of Downey, Cerritos, and Signal Hill and
issued an order invalidating, the assessments for the years 2007 through 2010. However, in review of the
"Reporter's Transcript of Proceedings," dated April 25, 2011, Judge James C. Chalfant ruled that the Water
Replenishment District of Southern California does not have to comply with the Judgment until the damages
case is over.
In order for the City of Vernon to preserve its potential refund claim without filing litigation and/or stop
paying the replenishment assessment at this time, it is important to enter into a Tolling Agreement with the
Water Replenishment District of Southern California. The City Attorney's office has prepared a Tolling
Agreement between the City of Vernon and the Water Replenishment District of Southern California. It is my
recommendation that the City Council approve the Tolling Agreement between the City of Vernon and the
Water Replenishment District of Southern California at the June 19, 2012 City Council meeting. The effective
date of the Tolling Agreement will be July 1, 2012. Thank you.
SKW/sr
Enclosures
w
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT 85
CITY OF CERRITOS,
PLAINTIFF,
VS.
WATER REPLENISHMENT DISTRICT,
DEFENDANT.
HON. JAMES C. CHALFANT, JUDGE
NO. BS 128 136
REPORTER'S TRANSCRIPT OF PROCEEDINGS
MONDAY, APRIL 25, 2011
APPEARANCES:
FOR THE PLAINTIFF
FOR THE DEFENDANT:
MC CORMICK, KIDMAN & BEHRENS
BY: DAVID BOYER, ESQUIRE
PATTY J. QUILIZAPA, ESQUIRE
650 TOWN CENTER DRIVE
SUITE 100
COSTA MESA, CALIFORNIA 92626
(714) 755-3100
HARRIS & ASSOCIATES
BY: JOHN W. HARRIS, ESQUIRE
915 WILSHIRE BOULEVARD
SUITE 1820
LOS ANGELES, CALIFORNIA 90017
(213) 489-9833
c��p �
JEANIE CAMPBELL; CSR NO. 11859
OFFICIAL REPORTER
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CASE NUMBER: BS 128 136
CASE NAME: CITY CERRITOS
LOS ANGELES, CALIFORNIA MONDAY, APRIL 25, 2011
DEPARTMENT 85 HON. JAMES C. CHALFANT, JUDGE
APPEARANCES: (AS HERETOFORE NOTED.)
REPORTER: JEANIE CAMPBELL, CSR NO. 11859
TIME: 10:40 A.M.
THE COURT: CITY OF CERRITOS VERSUS WATER
REPLENISHMENT DISTRICT, BS 128 136, NUMBER FIVE ON
CALENDAR. ,
MR. HARRIS: GOOD MORNING, YOUR HONOR. JOHN W.
HARRIS FOR THE RESPONDENT, WATER REPLENISHMENT DISTRICT OF
SOUTHERN CALIFORNIA.
MR. BOYER: GOOD MORNING, YOUR HONOR. DAVID BOYER
ON BEHALF OF THE PETITIONERS, CITIES OF CERRITOS, DOWNEY
AND SIGNAL HILL.
MS. QUILIZAPA: GOOD MORNING YOUR HONOR. PATRICIA
QUILIZAPA, Q-U-I-L-I-Z-A-P-A, ON BEHALF OF PETITIONERS,
CITIES OF CERRITOS, DOWNEY, AND SIGNAL HILL.
THE COURT: ALL RIGHT. GOOD MORNING, COUNSEL.
THIS IS HERE ON A PETITION FOR WRIT OF MANDATE. IT
CONCERNS A SERIES OF REPLENISHMENT ASSESSMENTS IMPOSED BY
THE WATER DISTRICT ON WELL OWNERS WITHIN THE CENTRAL AND
WEST COAST BASINS WHICH ARE WITHIN THE JURISDICTION OF THE
W.R.D.
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THE PETITION CONCERNS THE APPLICATION OF
PROP 218, SPECIFICALLY ARTICLE X D OF THE CALIFORNIA
CONSTITUTION WHICH REQUIRES THAT IN CERTAIN PROPERTY
RELATED TAXES, CHARGES, OR ASSESSMENTS THAT CERTAIN
PROCEDURES APPLY WITH RESPECT TO NOTICE AND THE ABILITY TO
VOTE AGAINST AND VOTE DOWN A CHARGE AND A PROPORTIONALITY
REQUIREMENT, SUBSTANTIVELY REQUIRED ALSO BY ARTICLE XIII D.
LET ME ALSO SAY THAT I VIEW THIS AS A
QUASI -LEGISLATIVE DECISION, THAT IS, THE IMPOSITION OF THE
REPLENISHMENT ASSESSMENT BY THE WATER DISTRICT, AND AS
SUCH, THERE SHOULD HAVE BEEN A RECORD PREPARED IN THIS
CASE. NOBODY PREPARED A RECORD.
THE PETITIONERS PRESENTED EVIDENCE WHICH,
FRANKLY, I ASSUMED WOULD CONSTITUTE THE RECORD, ALTHOUGH I
DON'T KNOW THAT FOR CERTAIN BECAUSE I DIDN'T COMPARE ALL
OF THE ITEMS OF EVIDENCE TO WHETHER OR NOT THEY WOULD HAVE
BEEN BEFORE THE WATER DISTRICT AT THE TIME IT COMPOSED THE
IN ANY EVENT, NOBODY COMPLAINED ABOUT THE
PETITIONERS' EVIDENCE ON THAT GROUND. THERE WERE
OBJECTIONS MADE TO IT ON AN EVIDENTIARY BASIS, WHICH I DID
RULE UPON, ALTHOUGH IF IT CONSTITUTES THE RECORD, THOSE
EVIDENTIARY RULINGS WOULD BE IRRELEVANT.
BUT BECAUSE EXTRA -RECORD EVIDENCE IN A
QUASI -LEGISLATIVE TRADITIONAL MANDAMUS CASE IS GENERALLY
INADMISSIBLE, I DID NOT CONSIDER, ALTHOUGH I READ THE
DECLARATIONS OF THEODORE A. JOHNSON WHICH BASICALLY
EXPLAINS WHY THE WATER DISTRICT TREATS THE CENTRAL AND
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Ff'3
WEST COAST BASINS AS A SINGLE ENTITY FOR PURPOSES OF ITS
REPLENISHMENT ASSESSMENTS.
THE ISSUES INITIALLY RAISED IN DEFENSE ARE
WHETHER MANDAMUS IS A PROPER REMEDY; IT IS FOR THIS KIND
OF MATTER, AND INDEED, A NUMBER OF THE CASES INVOLVED --
ACTUALLY, I DON'T KNOW WHETHER ANY OF THE SUPREME COURT
CASES INVOLVED THE USE OF MANDAMUS, BUT IT IS PERFECTLY
APPROPRIATE TO USE MANDAMUS HERE.
SECOND, THIS ISSUE OF STANDING; THE CITIES
CLEARLY HAVE STANDING BECAUSE THEY OWN SOME OF THE WELLS
WHICH ARE THE SUBJECT OF THE ASSESSMENT. IT DID RAISE AN
ISSUE IN MY MIND OF INDISPENSABLE PARTIES, THAT IS,
WHETHER THE OTHER WELL OWNERS SHOULD HAVE BEEN JOINED.
ULTIMATELY I DETERMINED IN FOOTNOTE 4 THAT THEY ARE NOT
INDISPENSABLE, AND I DON'T NEED TO WORRY ABOUT WHETHER
THEY ARE NECESSARY PARTIES; NOBODY SOUGHT TO JOIN THEM.
EXHAUSTION OF ADMINISTRATIVE REMEDIES, YOU
DO NOT NEED TO EXHAUST FOR A QUASI -LEGISLATIVE ACTION.
THE RIGHT TO APPEAR AT A PUBLIC HEARING DOES NOT CONSTITUTE.
AN EXHAUSTION ISSUE.
THEN WE COME TO THE FACT THAT THE COURT WAS
NOT WRITING ON A CLEAN SLATE; THANK GOODNESS, BECAUSE
THESE ARE VERY DIFFICULT ISSUES, BUT FORTUNATELY, THE
SUPREME COURT IN THREE OCCASIONS AND THE COURT OF APPEAL
IN ONE OCCASION HAS ADDRESSED ARTICLE XIII, EITHER C OR D
OR BOTH. I HAVE SUMMARIZED THE CASE LAW, AND I BELIEVE
THAT PAJARO BASICALLY COMPELS THE CONCLUSION THAT ARTICLE
XIII D APPLIES TO THE REPLENISHMENT ASSESSMENTS IN THIS
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C1%FTm
THE DISTINCTION IS BASED ON CAPACITY; THAT
IS, THE WELL OWNERS ARE PUMPING AS A BUSINESS OWNER RATHER
THAN AS A PROPERTY OWNER. THOSE KINDS OF DISTINCTIONS
WERE REJECTED IN PAJARO -- ACTUALLY, PAJARO INITIALLY
ACCEPTED THOSE KINDS OF DISTINCTIONS, AND THEN AFTER BIG
HORN DECIDED THAT THE SUPREME COURT'S ANALYSIS WOULD MEAN
THEY ARE NOT WELL TAKEN, EXTRACTION OF WATER IS AN
ACTIVITY INTIMATELY CONNECTED WITH PROPERTY OWNERSHIP.
THEN THERE IS THE ISSUE OF, WELL, DID THE
CITIES OWN THE PROPERTIES ON WHICH THE WELLS WERE LOCATED?
ULTIMATELY AS THE CITIES ARGUE THAT WATER EXTRACTION
RIGHTS ARE A FORM OF TENANCY IN THE PROPERTY; THEY DON'T
HAVE TO OWN THE PROPERTY IF THEY HAVE THE RIGHT TO EXTRACT
THE WATER. THAT IS A REAL PROPERTY TENANCY, ONE OF THE
BUNDLES OF RIGHTS THAT YOU GET WHEN YOU OWN PROPERTY, AND
YOU CAN ASSIGN THOSE RIGHTS. WHETHER THEY WERE ASSIGNED
TO THE CITIES BY SOME PROPERTY OWNER IS REALLY NOT
RELEVANT; THEY ARE CERTAINLY A TENANT WITH RESPECT TO THE
RIGHTS TO PUMP WATER FROM THE GROUND.
THEN SINCE THE ARTICLE XIII D APPLIES, DID
THE W.R.D., THE WATER REPLENISHMENT DISTRICT -- IT IS
UNDISPUTED THAT THEY DIDN'T COMPLY WITH THE PROCEDURAL
PROTECTIONS OR PERFORM ANY PROPORTIONALITY ANALYSIS BEFORE
ADOPTING THE R.A.S THAT ARE AT ISSUE HERE, AND SO THE
TENTATIVE IS TO GRANT.
WITHOUT THE COURT OFFERING ANY OPINION ON
THE PRINCIPAL ISSUE HERE WHICH IS -- WELL, IT IS NOT THE
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PRINCIPAL BUT ONE OF THE ISSUES IS SHOULD THE WEST DISTRICT
BE COMBINED WITH THE CENTRAL DISTRICT FOR PURPOSES OF THE
PROPORTIONALITY ANALYSIS OR SHOULD THEY BE SEPARATELY
CONSIDERED? I'M NOT TOUCHING THAT ONE IN MY TENTATIVE.
HAVE COUNSEL SEEN THE TENTATIVE?
MR. HARRIS: YES, YOUR HONOR.
THE COURT: DO YOU WISH TO BE HEARD?
MR. HARRIS: YES, YOUR HONOR.
THE COURT: GO AHEAD.
MR. HARRIS: JUST A COUPLE MATTERS. INITIALLY WE
DID DISCUSS AN ADMINISTRATIVE RECORD; PETITIONERS
INDICATED THAT THEY DIDN'T FEEL ONE WAS NECESSARY. WE
PROVIDED VOLUMINOUS DISCOVERY WHICH, OBVIOUSLY, WE AGREE
COULD HAVE BEEN MADE PART OF THE RECORD. ULTIMATELY WE
DIDN'T AGREE UPON IT, BUT PETITIONERS DECIDED TO MOVE
FORWARD WITHOUT IT. I JUST WANTED TO MAKE THAT CLEAR.
THE COURT: OKAY.
MR. HARRIS: YOUR HONOR, I READ YOUR TENTATIVE. A
COUPLE QUESTIONS COME IMMEDIATELY TO MIND. YOU START WITH
THIS PREMISE, THAT INCIDENT OF OWNERSHIP, WHAT IS IT?
THAT IS WHAT ALL THE CASES HAVE GRAPPLED WITH, BIG HORN,
RICHMOND, AND PAJARO. WHAT WE SUBMITTED IN OUR BRIEF IS
WE DIDN'T FEEL THAT ANY THOSE CASES ACTUALLY TOUCHED ON
THIS VERY ISSUE. ACTUALLY, IF YOU LOOK AT PAJARO, THEY
ARE ALL OVER THE PLACE, AND AT THE END THEY SAID, WELL,
YOU KNOW, WE'RE CONFINED TO BIG HORN BECAUSE THEY
OVERRULED.
WELL, IF YOU LOOK AT IT AND YOU GO TO
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PAJARO, THEY SAY WE ARE NOT GOING TO SAY THAT ALL DOMESTIC
USE OF WATER SHOULD BE SUBJECT TO XIII D. THEN THEY START
TALKING ABOUT THE CONNECTION FEE VERSUS DELIVERY FEE.
ONE OF THE THINGS THAT WE THOUGHT
DISTINGUISHES THIS CASE FROM PAJARO WAS THAT IN THAT CASE,
ALL OF THE PUMPERS ACTUALLY OWNED THE PROPERTY WHICH WE
THOUGHT WAS VERY IMPORTANT TO THE INCIDENT OF OWNERSHIP.
ALSO, THEY LOOK TO THE PARCEL. WHAT
HAPPENED IN THAT CASE, THE AGENCY LOOKED TO THE PARCEL
OWNERS AND ACTUALLY ASSESSED THE PARCELS, THAT IS THE KEY
ELEMENT OF PROP XIII BECAUSE IT SAYS YOU HAVE TO SEND
NOTICE TO PARCEL OWNERS; THE ASSESSMENTS HAVE TO BE MADE
TO THE PARCELS. IN THAT CASE, THAT'S WHAT WAS HAPPENING.
IN THIS CASE, THERE IS NO ASSESSMENT ON THE
PARCEL OWNERS; IT IS AN ASSESSMENT BASED UPON THE
EXTRACTION OF WATER. WE THOUGHT THAT WAS A KEY DISTINCTION.
ALSO IN THAT CASE, YOU'RE TALKING ABOUT
RESIDENTS USING WATER. THESE PEOPLE WERE PUMPING WATER
FOR THEIR OWN CONSUMPTION. IN THIS CASE, BASICALLY THE
CITIES ARE RESELLERS OF WATER; THEY'RE NOT CONSUMING THE
WATER THEMSELVES, AND OBVIOUSLY, THERE'S NO EVIDENCE TO
INDICATE THAT THEY ARE.
WE THINK THAT THIS CASE KIND OF TURNS,
REALLY, XIII D ON ITS HEAD BECAUSE XIII (D) WAS PASSED TO
PROTECT THE RESIDENTS FROM CITIES AND OTHER AGENCIES. IN
THIS CASE, THE CITIES ARE NOW SAYING, OH, BUT WE'RE THE
BENEFICIARIES OF XIII (D). YOU'VE GOT A BIG DISTINCTION
HERE BECAUSE THEY ARE REALLY THE RETAILERS OF IT. THEY
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THEN TURN AROUND AND SELL THE WATER. THAT I THINK IS
ANOTHER BIG FACTOR.
THE OTHER POINT IS IN THE PAJARO, THE COURT
DID -- AND YOU COMMENTED IN YOUR TENTATIVE -- THE COURT
LOOKED AT THE LIEN RIGHTS. IN THIS CASE, REALLY, WATER
REPLENISHMENT DISTRICT.HAS NO LIEN RIGHTS. THEY NEVER
LOOK TO THE PARCEL OWNERS FOR PAYMENT: IF THE PUMPERS
DON'T PAY, THEY REALLY DON'T HAVE ANY REMEDY WHATSOEVER
AGAINST THE PARCEL OWNERS. ONE OF THE ARGUMENTS WE MADE,
YOUR HONOR, IN THE --
THE COURT: YOU MEAN OTHER THAN SUING, GETTING A
JUDGMENT AND THEN USING THE JUDGMENT AS A LIEN.
MR. HARRIS: OF COURSE, BUT NO LIEN AGAINST THE
PROPERTY.
THE COURT: RIGHT.
MR. HARRIS: NO LIEN AGAINST THE PROPERTY. AND ONE
OF THE POINTS THAT RICHMOND TALKED ABOUT THAT WE THOUGHT
WAS REALLY PROBATIVE IS THAT RICHMOND SAID, WELL IF YOU
CAN'T COMPLY OR IF COMPLIANCE WITH XIII (D) IS
IMPRACTICAL, MAYBE IT DOES NOT APPLY.
IF YOU LOOK AT RICHMOND, IT SIMPLY SAYS IF
YOU CAN'T IDENTIFY OR YOU HAVE GREAT DIFFICULTY IN
IDENTIFYING THE PARCEL ON WHICH A FEE WILL BE IMPOSED. IN
THIS CASE, W.R.D. CAN'T IMPOSE A FEE ON THE PARCELS; IT IS
ONLY THE EXTRACTION. THEY ACTUALLY IMPOSED THE FEE IN THE
PAJARO CASE, WHICH WE THINK IS CRITICAL THAT THAT FALLS IN
THE FOUR CORNERS OF WHAT 11-13 WAS TRYING TO PREVENT.
THEN YOU HAVE TO CALCULATE THE AMOUNT OF FEE
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ON EACH PARCEL. HOW IN THE WORLD IS W.R.D. GOING TO
CALCULATE THAT? IT IS ABOUT PUMPING RIGHTS THAT ARE NOT
CONTIGUOUS OR TIED TO THE PARCEL ITSELF.
THEN THE QUESTION BECOMES, YOU HAVE TO SEND
NOTICE TO THE PARCEL OWNERS. UNDER THE LAW, W.R.D. IS NOT
REQUIRED TO EVEN SEND NOTICE TO THESE CITIES BECAUSE
THEY'RE NOT PARCEL OWNERS.
SO YOU HAVE THIS HUGE CONUNDRUM; W.R.D.
WOULD BE REQUIRED TO SEND NOTICE TO PARCEL OWNERS THAT,
ONE, DON'T EVEN PAY THE FEE, AND SECONDLY, DON'T CARE
ABOUT IT BECAUSE THEY ARE NOT AFFECTED BY IT IN ANY SENSE
OF THE WORD. IT IS REALLY THE PUMPERS WHO ACTUALLY OWN
STATE -DESIGNATED WELLS IN TERMS OF HOW THEY'RE PAID
PURSUANT TO THE WATER CODE.
SO THAT'S THE IMPRACTICALITY OF THE
IMPOSITION OF XIII (D).
THE COURT: I THOUGHT THE CITIES OWNED THE WELLS.
MR. HARRIS: THEY DON'T OWN THE WELLS, THEY OWN THE
LAND. THE QUESTION IS, HOW DO YOU DISTINGUISH THE RIGHT
TO PUMP WATER VERSUS THE UNDERLYING LAND? IF YOU TALK
ABOUT INCIDENT OF OWNERSHIP, ARE YOU, IN FACT, SAYING A
WELL IN AND OF ITSELF, THE RIGHT TO PUMP WATER IS AN
INCIDENT OF OWNERSHIP? WE WOULD SUBMIT --
THE COURT: OWNERSHIP OF WELLS IS AN INCIDENT OF
PROPERTY OWNERSHIP. I MEAN, I THINK THERE ARE TWO ANSWERS
TO THAT ISSUE; ONE, I DON'T BELIEVE THAT THE W.R.D. MADE
ANY FINDINGS THAT THESE WELL OWNERS WERE NOT OWNERS OF
PROPERTY FOR PURPOSES OF THE RA SUCH THAT THE RA COULD BE
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IMPOSED IN SPITE OF PAJARO, OR HOWEVER YOU PRONOUNCE IT.
IF YOU HAD, YOU HAVE THE PROBLEM THAT
SECTION 2 (G) OF ARTICLE XIII (D) WHICH SAYS, (READING):
"PROPERTY OWNERSHIP SHALL
BE DEEMED TO INCLUDE TENANCY OF REAL
PROPERTIES WHERE TENANTS ARE DIRECTLY
LIABLE TO PAY THE ASSESSMENT, FEE OR
CHARGE IN QUESTION."
SO A TENANCY OF REAL PROPERTY, I BELIEVE --
NOW, I ACKNOWLEDGE THAT I THINK THIS IS THE WEAKEST PART
OF THE ANALYSIS. TENANCY OF REAL PROPERTY INCLUDES THE
HOLDER OF WATER RIGHTS OR MINERAL RIGHTS. IN OTHER WORDS,
IT'S NOT JUST WHO HAS THE RIGHT TO BUILD A HOUSE ON THE
LAND OR A COMMERCIAL DEVELOPMENT ON THE PROPERTY BUT WHO
HAS MINERAL OR WATER RIGHTS. THAT IS A TENANCY OF THE
PROPERTY THE WAY I READ SECTION 2 (G), AND SO IT IS
SELF -INCLUDING.
NOW, IF THAT'S WRONG, THEN YOU ARE CORRECT
THAT THIS WHOLE THING DOES NOT APPLY TO WELLS THAT ARE NOT
OWNED BY THE LANDOWNER.
MR. HARRIS: AND YOUR HONOR, THAT'S THE POINT WE
MADE. THERE HAS BEEN NO CASE THAT ACTUALLY SAYS THAT,
THAT THE RIGHT TO EXTRACT WATER IS IN ITSELF A PROPERTY
RIGHT WITHIN THE MEANING OF XIII (D).
THE COURT: WELL, THAT'S TRUE; THERE IS NO CASE
THAT SAYS THAT. BUT THE REAL ISSUE IS, IS IT A TENANCY OF
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REAL PROPERTY?
COUNSEL?
MS. QUILIZAPA: YOUR HONOR, TWO THINGS. YOU DID
MAKE A POINT ABOUT W.R.D. NOT MAKING A FINDING AS TO
WHETHER THE CITIES OWN THE PROPERTIES. NO EVIDENCE ON
EITHER SIDE HAS BEEN SUBMITTED AS TO THAT, WE NOW CONCEDE
THAT THE CITIES DON'T OWN THE PROPERTY ITSELF. W.R.D. HAS
THE BURDEN IN THIS CASE OF SHOWING COMPLIANCE.
THE COURT: YES.
MS. QUILIZAPA: THEY DID NOT GO THROUGH THE
ANALYSIS OF WHETHER THE RA APPLIED BASED ON PROPERTY
OWNERSHIP OR NOT. THERE ARE TWO PROPERTY RIGHTS THAT ARE
AT ISSUE, THE OWNERSHIP OF THE LAND AND THE OWNERSHIP OF
THE WELLS, AS WELL AS THE OWNERSHIP OF THE PROPERTY RIGHTS
TO EXTRACT GROUND WATER, WHICH WAS SPECIFICALLY LOOKED AT
IN PAJARO.
ACTUALLY, THEY CITED TO THE WEST COAST BASIN
ADJUDICATION AS EVIDENCE OF THE RIGHT TO EXTRACT GROUND
WATER AS PROPERTY RIGHTS SUBJECT TO ARTICLE XIII (D).
THERE IS ANOTHER MISCHARACTERIZATION OF THE
W.R.D. RIGHTS TO GO AFTER THE PUMPERS AND THE PROPERTY
ITSELF THAT HAS NOT BEEN CLARIFIED HERE. W.R.D. CITED TO
WATER CODE SECTION 60339 IN THEIR OPPOSITION, AND THAT
SECTION ACTUALLY ALLOWS FOR W.R.D. TO OBTAIN AN INJUNCTION
RESTRAINING THE PUMPERS FROM THE,GROUND WATER PRODUCING
FACILITY ITSELF AND NOT ALLOWING THE PUMPERS TO OPERATE
THAT WELL. SO TO SAY THAT ——
THE COURT: INJUNCTION FOR WHAT REASON?
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MS QUILIZAPA: FOR NON-PAYMENT OF THE REPLENISHMENT
ASSESSMENTS. SO TO SAY THAT THE REPLENISHMENT ASSESSMENTS
ARE NOT TIED TO THE GROUND WATER PRODUCING FACILITY ITSELF,
GROUND WATER EXTRACTION RIGHTS TO THE PROPERTY IT SITS ON
WHEN THEY HAVE THE POWER TO SEEK AN INJUNCTION RESTRAINING
THE PUMPER AND EXCLUDING IT FROM THAT PROPERTY IS
ILLOGICAL.
MR. BOYER: YOUR HONOR, IF I COULD JUST FOLLOW-UP
FOR CLARIFICATION PURPOSES. WHEN SHE MENTIONED TWO
SEPARATE PROPERTY RIGHTS, WHAT SHE IS TALKING ABOUT IS
WHAT YOU MENTIONED A MOMENT AGO AND SHE MENTIONED WHICH IS
THE RIGHT TO PUMP THE ACTUAL WATER.
THE SECOND RIGHT IS, HOW ON EARTH DO YOU GET
ON -- IF YOU DON'T OWN THE PROPERTY, IF YOU DON'T HAVE AN
EASEMENT TO THE PROPERTY, YOU'RE TRESPASSING. HOW ON
EARTH DO YOU GET ON THE PROPERTY TO PUMP WATER IN THE
FIRST PLACE? IF YOU'RE TRESPASSING, AFTER A CERTAIN
PERIOD OF TIME, AS EVERY LAWYER IN THIS COURTROOM KNOWS
AND YOUR HONOR KNOW, YOU ADVERSELY CREATE A RIGHT OF
EASEMENT. SO ONE WAY OR ANOTHER, YOU HAVE A SECOND TYPE
OF PROPERTY RIGHT TO GET TO THE PUMP.
SO THERE ARE TWO SEPARATE PROPERTY RIGHTS
CONNECTED WITH PUMPING WATER ON PROPERTY.
THE COURT: WELL, OKAY, AN EASEMENT. BUT THEN
THERE IS THE QUESTION OF, DOES AN EASEMENT QUALIFY AS A
TENANCY OF REAL PROPERTY? I DON'T KNOW THAT IT DOES. IF
I HAD TO GUESS, I WOULD GUESS THAT IT ISN'T A TENANCY. SO
LEAVE THE EASEMENT ASIDE BECAUSE I DON'T HAVE ANY EVIDENCE
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ONE WAY OR ANOTHER ON THAT.
MR. BOYER: BUT THAT'S MY POINT; IT IS THEIR
BURDEN. GOING BACK TO THE CASE WHICH SHE CITED, PAJARO,
WHICH SPECIFICALLY MENTIONED THE WEST BASIN AND THE
ADJUDICATION, AND OF COURSE, THE ADJUDICATION OF THE
CENTRAL BASIN WHICH ARE PARALLEL ADJUDICATIONS; THESE ARE
DEFINED WATER RIGHTS.
THE COURT: YES. YOU HAVE THE RIGHT TO THE WATER;
YOU HAVE THE RIGHT TO PUMP IT.
MR. BOYER: RIGHTS TO PUMP THE WATER; THEY'RE
TRANSFERABLE, THEY ARE DEFINED, VESTED AS REAL PROPERTY
RIGHTS AS ANY RIGHT IN THE LAND ITSELF.
MR. HARRIS: YOUR HONOR, I MIGHT ADD, WHERE DO
THESE RIGHTS SPRING FROM? THEY CAME FROM THE ADJUDICATION
BACK IN THE 1960S THAT GAVE SPECIFIC PEOPLE THE RIGHT TO
PUMP WATER. THERE IS NOTHING IN THERE SAYING THAT'S A
CREATION OF A TENANCY IN LAND; JUST THE RIGHT TO PUMP THE
WATER FROM IT.
THE COURT: THEY OWN AND PUMP THE WATER. YOU CAN'T
EXTRACT WATER YOU DON'T OWN, I DON'T THINK.
MR. HARRIS: I DON'T THINK THEY OWN THE WATER; NO
ONE HAS A RIGHT TO OWN -IT. THEY HAVE A RIGHT TO EXTRACT
IT PURSUANT TO THE WATER MASTER'S GUIDELINES; THEY DON'T
OWN THE UNDERLYING WATER.
THE COURT: YOU SELL, IT DON'T YOU? HOW COULD YOU
SELL SOMETHING YOU DON'T OWN?
MS. QUILIZAPA: YOUR HONOR, PAJARO SPECIFICALLY
ADDRESSED THAT ISSUE WHETHER [INAUDIBLE] -- IT DOES NOT
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NEED TO GET INTO THAT ISSUE. BUT THERE IS ENOUGH IN
ESTABLISHED CALIFORNIA LAW TO SAY THAT THE GROUND WATER
EXTRACTION RIGHTS ARE INTIMATELY CONNECTED TO PROPERTY
OWNERSHIP -- CITING TO A STRING OF CASES WHICH WE POINTED
THE COURT TO IN OUR PAPERS THAT SAY, EVEN MORE THAN SIMPLE
WATER DELIVERY, GROUND WATER EXTRACTION RIGHTS AND FEES
IMPOSED BASED ON NOTHING ELSE OTHER THAN THE NORMAL USE OF
A GROUND WATER PRODUCING FACILITY, WHICH W.R.D. DOES MAKE
REFERENCE -- [INAUDIBLE] -- THE FEE IMPOSED, IF NOTHING
ELSE, IS INTIMATELY CONNECTED TO PROPERTY OWNERSHIP AND
SUBJECT TO ARTICLE XIII (D).
THE COURT: WELL, UNDERSTOOD. BUT IF YOUR WATER
PUMPING RIGHTS DON'T QUALIFY AS A TENANCY OF REAL PROPERTY,
I DON'T THINK THAT THE RA APPLIES TO YOU. SO WE'RE BACK
TO THAT ISSUE.
BUT THEY HAVE THE BURDEN OF PROOF; THEY
HAVE NOT SHOWN THAT YOU ARE NOT A TENANCY IN REAL
PROPERTY, NOR DID THEY PURPORT TO RELY ON THAT ARGUMENT IN
ISSUING THE RA'S AS TO YOUR CLIENT.
MR. HARRIS: YOUR HONOR, I MIGHT WANT TO ADD THAT
THEY SIMPLY MADE THE BALD ASSERTION THAT THEY WERE OWNERS,
AND THAT'S THE ONLY THING WE OBJECTED BECAUSE THEY
SUBMITTED EVIDENCE THAT SAID THEY HAD A RIGHT, AND WE SAID
THAT DOES NOT PROVE -- THE FACT THAT YOU'RE PUMPING WATER
MEANS THAT YOU ARE OWNERS OF THE LAND.
THE COURT: I DON'T HAVE ANY EVIDENCE THAT THEY OWN
THE LAND. MY CONCLUSION IS THAT A WATER RIGHT IS NO
DIFFERENT FROM A MINERAL RIGHT IN THIS CONTEXT, AND THAT
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IS A TENANCY IN LAND AS DEFINED IN SECTION 2 (G).
NOW, IF I'M WRONG ON THAT, THEN MY FALLBACK
IS YOU HAVE THE BURDEN OF PROOF TO SHOW THAT IT'S NOT A
TENANCY IN REAL PROPERTY, AND YOU HAVE NOT SHOWN THAT, AND
YOU DIDN'T PURPORT TO RELY ON THAT ARGUMENT IN ISSUING THE
RA ANYWAY, THAT IS, IN DETERMINING THAT THE ARTICLE XIII
(D) DOES NOT APPLY.
BUT LOOK, I THINK THAT IS THE WEAK LINK IN
THE PETITIONERS' POSITION. THE ARGUMENT THAT THEY ARE
RETAILERS SELLING THE WATER I DON'T THINK MATTERS. THEY'RE
BEING CHARGED AN EXTRACTION FEE FOR PUMPING WATER; WHAT
THEY DO WITH IT AFTER THAT HAS NOTHING TO DO WITH THE FEE
THAT THEY ARE BEING CHARGED. IF THEY WERE BEING CHARGED
FOR RETAILING WATER, THEN YOU MIGHT HAVE AN ARGUMENT UNDER
RICHMOND THAT IT IS NOT ASSOCIATED WITH THE LAND, INCIDENT
TO THE LAND.
MR. HARRIS: THAT'S SORT OF WHERE RICHMOND GOES TO
WHETHER THAT IS INCIDENT, AND RICHMOND KIND OF WENT
SIDEWAYS AS WELL ON THE PARCEL OWNERSHIP, AND THAT IS WHY
WE SAID -- THAT WAS SO INSTRUCTIVE BECAUSE RICHMOND DID
START TALKING ABOUT WHETHER YOU WERE, QUOTE, OWNERS OF THE
LAND BY IDENTIFICATION OF THE PARCEL.
THE COURT: BUT YOU CAN IDENTIFY THE WELLS, AND IF
THEY ARE A TENANCY IN PROPERTY, THEN THAT ARGUMENT FALLS
AWAY, THE IDENTIFICATION ARGUMENT FALLS AWAY. SO REALLY,
IF THEY ARE NOT A TENANCY IN REAL PROPERTY, THEN THE XIII
(D) DOES NOT APPLY.
BUT YOU HAVE NOT MET YOUR BURDEN OF PROOF TO
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SHOW THAT. I TEND TO BELIEVE THAT THEY'RE A TENANCY IN
REAL PROPERTY, AND YOU HAVE TO COMPLY WITH PROP 218.
MR. HARRIS: YOUR HONOR, WOULD YOU ALLOW FURTHER
BRIEFING ON THAT ISSUE WHETHER,. IT IS A TENANCY?
THE COURT: WELL, THE ANSWER IS NO; THIS IS YOUR
CHANCE TO HAVE YOUR TRIAL, BUT BECAUSE THIS IS
QUASI -LEGISLATIVE, I DON'T THINK IT WOULD MATTER. YOU
HAVE TO MAKE THESE SHOWINGS AS PART OF YOUR DETERMINATION
IN IMPOSING THE RA. YOU CAN'T JUSTIFY IT AFTER THE FACT.
SO I DON'T EVEN THINK SUPPLEMENTAL BRIEFING WOULD HELP
YOU.
I GUESS IN ADHERING TO THE WRIT, THE W.R.D.
CAN GO BACK AND SAY -- WELL, THEY CAN DO LOTS OF THINGS.
THEY CAN SAY YOU'RE NOT A TENANCY IN REAL PROPERTY -- NO,
I DON'T THINK THEY CAN. I THINK ONCE I ISSUE THE WRIT,.
YOU'RE STUCK WITH XIII (D) APPLYING.
BUT YOU CAN CHANGE THE ASSESSMENT TO TRY TO
FIT WITHIN THE EXCEPTION IN PAJARO; YOU COULD IMPOSE -- IF
IT IS LAWFUL UNDER THE WATER CODE -- IMPOSE IT NOT AS A
WATER EXTRACTION FEE BUT FOR SOME OTHER REASON OR PURPOSE,
I THINK PAJARO WOULD PERMIT THAT TOO.
THEN THERE IS THE WHOLE ISSUE OF
PROPORTIONALITY AND WHETHER THE TWO BASINS SHOULD BE
JOINED FOR PURPOSES OF THE FEE. YOU NEED TO DEVELOP THE
FACTS ON THAT, WHICH I GUESS YOU HAVE BEGUN TO DO WITH THE
DECLARATION THAT YOU SUBMITTED, AND I OFFER NO OPINION ON
THAT.
THE DISTRICT HAS A LOT OF AVENUES IT CAN
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FOLLOW IN COMPLYING WITH THE WRIT, BUT I DON'T THINK YOU
CAN ARGUE THAT 218 DOES NOT APPLY TO THE REPLENISHMENT
ASSESSMENTS THAT HAVE BEEN IMPOSED.
MR. HARRIS: THE OTHER QUESTION I HAVE THEN, YOUR
HONOR, IN TERMS OF REMEDIES, YOUR TENTATIVE SAYS THAT TO
VACATE BASICALLY THE RA'S FOR THE LAST FOUR YEARS. THE
QUESTION WE WOULD HAVE THEN IS ONCE IT IS VACATED, WHAT
ARE OUR REMEDIES IN TERMS OF -- OBVIOUSLY, WE HAVE
COLLECTED MONEY WITH THE RA'S FOR THE LAST FOUR YEARS. IT
SORT OF OPENS PANDORA'S BOX IN TERMS OF HOW YOU UN -RING
THAT BELL.
THE COURT: WHAT ABOUT THAT? WHAT ARE YOU SEEKING?
MS. QUILIZAPA: WELL, YOUR HONOR, AT THIS STAGE WE
ARE SEEKING A WRIT [INAUDIBLE]. WE DO HAVE A SECOND PHASE
WHICH THE RESPONDENTS AND THE PETITIONERS SOUGHT TO SEVER
OR BIFURCATE WITH THE TRIAL COURT. THERE IS A COMPLAINT
FOR DAMAGES SEPARATE, NOT BEFORE THIS COURT.
THE COURT: YOU HAVE A COMPLAINT FOR DAMAGES?
MR. BOYER: YES, YOUR HONOR. THE COMPLAINT ALSO
HAS TO DO WITH A COMPLETELY DIFFERENT -- IN ADDITION TO
THE -- IT HAS TO DO WITH THE VIOLATIONS OF WRD'S ACT ALSO.
THE COURT: YOU MEAN WITH THE RESERVES? USING IT
FOR THE BOY SCOUTS?
MR. BOYER: YES. BUT AS FAR AS THE 218 PORTION,
THE COMPLAINT PROBABLY HAS A LOT TO DO WITH WHAT W.R.D.
DOES. SOME OF IT HAS TO DO WITH WHAT W.R.D. DOES IN
RESPONSE TO THE WRIT.
THE COURT OKAY. I DIDN'T KNOW YOU HAD OTHER
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CLAIMS. LET'S TALK ABOUT WHAT HAPPENS. (I tANfi�lkIS I'E'THE
}1CK' M;THERE�s6PiFIN'A�1'G,bG1EN1FIA1{EMiAPlfUOIR'xT
;UNTIL; Y, VR . bA(flATHIN 3
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IR00*0 ' NAV%45Q "O001 'yTHI l Y1N Flkf`E tAa BU NT-'• N; fHE
MR. HARRIS: UNDERSTOOD.
T,H x a U T �. Q��f`HE� A 1 i� E I I ��i , i I CIE TO - ME
�4
N1'OoL'U1P�#A'b�NUIN�THE
MATTER WILL BE TRANSFERRED TO THE TRIAL COURT FOR THE
OTHER CLAIMS.
`NU 111RIT,`WTU
I � E 11-MT 4 TF1E[ � A,aJU MEI 7Fi bO ING TH.E
116bUeTkrzP1��P�A�R%1.ir4,0010 VA'�'J�J1��ME�1�1 N�iTtV1�7
THE MATTER WILL BE TRANSFERRED TO THE TRIAL
COURT FOR RESOLUTION OF THE DAMAGES CLAIMS.
MR. BOYER: THERE IS NO ORDER TO SHOW CAUSE?
THE COURT: THAT'S RIGHT. NO O.S.C. YOU'RE DONE
IN THIS COURT. ANYTHING ELSE?
IS NOTICE WAIVED?
MR. BOYER: YES, THANK YOU, YOUR HONOR.
THE COURT: YOU'RE WELCOME.
(THE PROCEEDINGS IN THE ABOVE -ENTITLED.
MATTER WERE CONCLUDED AT 11:00 A.M.)
17 1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT 85 HON. JAMES C. CHALFANT, JUDGE
CITY OF CERRITOS,
PLAINTIFF,
VS. N0. BS 128 136
WATER REPLENISHMENT DISTRICT,
DEFENDANT.
REPORTER'S CERTIFICATE
I, JEANIE CAMPBELL, OFFICIAL REPORTER OF THE
SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS
ANGELES, DO HEREBY CERTIFY THAT THE FOREGOING PAGES 1 THROUGH
17, INCLUSIVE, COMPRISE A FULL, TRUE, AND CORRECT TRANSCRIPT
OF THE PROCEEDINGS TAKEN IN THE MATTER OF THE ABOVE -ENTITLED
CAUSE ON MONDAY, APRIL 25, 2011.
DATED THIS 28TH DAY OF APRIL , 2011.
JEMNIE CAMPBELL, CSR MO. 11859
OFFICIAL REPORTER.
RECE""JEE
JUN 1 1 2012
CITY CLERK'S OFFICE
COMMUNITY SERVICES & WATER DEPARTMENT
OFFICE MEMORANDUM .
TO: Mark Whitworth, City Administrator
FROM: Samuel Kevin Wilson Director of Community Services and Water
DATE: June 6, 2012
SUBJECT: Tolling Agreement between the City of Vernon and the Water Replenishment
District of Southern California
In 2010 the cities of Downey, Cerritos, and Signal Hill filed a petition challenging the Water
Replenishment District of Southern California's (WRD) `replenishments assessments" imposed since 2007.
The subject challenge was based on the contention that the Water Replenishment District of Southern California
failed to act in accordance with the provisions of Proposition 218. Proposition 218 requires local governments to
have a vote of affected property owners for any new or increased assessment before it can be levied. On April
25, 2011, the Court sided with the cities of Downey, Cerritos, and Signal Hill and issued an order invalidating
the assessments for the years 2007 through 2010. However, in review of the "Reporter's Transcript of
Proceedings," dated April 25, 2011, Judge James C. Chalfant ruled that the Water Replenishment District of
Southern California does not have to comply with the Judgment until the damages case is over.
In order for the City of Vernon to preserve its potential refund claim without filing litigation and/or stop
paying the replenishment assessment at this time, it is important to enter into a Tolling Agreement with the
Water Replenishment District of Southern California. The City Attorney's office has prepared a Tolling
Agreement between the City of Vernon and the Water Replenishment District of Southern California. A Staff
Report is herein attached recommending that the City Council approve the Tolling Agreement between the City
of Vernon and the Water Replenishment District of Southern California at the June 19, 2012 City Council
meeting. The effective date of the Tolling Agreement will be July 1, 2012. My staff will have the subject
Agreement executed upon Council approval. Thank you.
SKW/sr
Enclosures
F.\SmLLVS WyDonvivMs\WMTOJIMg QyMmn�dx
�OF FE M
�"r'srr w0004 .
CITY ATTORNEY'S OFFICE
INTER -DEPARTMENT MEMORANDUM
DATE: May 29, 2012
TO: Samuel Kevin Wilson, Director of Community Services && Water
FROM: Willard G. Yamaguchi, Chief Deputy City Attorneyf 1
RE: Tolling Agreement between the City of Vernon and the Water
Replenishment of Southern California
I have received and reviewed the Memorandum dated May 8, 2012, and the
attachments thereto.
Attached is the drafted tolling agreement for the above -referenced
matter.
Also, please provide Exhibits A and B which are referenced in pages 3
and 4 of the drafted agreement.
Enclosures
h�.
JECDMAY 0 9 2012
CITY ATTORNEY DEPT,
COMMUNITY SERVICES.& WATER DEPARTMENT
OFFICE MEMORANDUM
TO: Willard Yamaguchi, Interrim City Attorney
FROM: Samuel Kevin Wilsonnt�,Director of Community Services and Water
DATE: May 8, 2012
SUBJECT: Request to Prepare a Tolling Agreement between the City of Vernon and the
Water Replenishment of Southern California
As you are aware, in 2010 the cities of Downey, Cerritos, and Signal Hill filed a petition challenging
the Water Replenishment District of Southern California's"replenishments assessments" imposed since 2007.
The subject challenge was based on the fact that the Water Replenishment District of Southern California failed
to act in accordance with the provisions of Proposition 218. Proposition 218 requires local governments to have
a vote of affected property owners for any new or increased assessment before it can be levied.
Moreover, on April 25, 2011, the Court sided with the cities of Downey, Cerritos, and Signal Hill and
issued an order invalidating the assessments for the years 2007 through 2010. However, in review of the
"Reporter's Transcript of Proceedings;" dated April 25, 2011, Judge James C. Chalfant ruled that WRD does
not have to comply with the Judgment until the damages case is over.
In order for the City of Vernon to preserve its potential refund. claim without filing litigation and/or stop
paying the replenishment assessment at this time, it is important to enter into a Tolling Agreement with the
Water Replenishment District of Southern California. Attached herewith is a sample Tolling Agreement for
your review. Please prepare a Tolling Agreement between the City of Vernon and the Water Replenishment
District of Southern California. The effective date will be June 9, 2012. Thank you.
SKW/sr .
Enclosures .
CC: City Administrator
PIS m\ScwftD..u\WRD\WRD RcpkW..t Aamtrcni T.Ihg Aff w P,,pvg.,&.
As
WATER REPLENISHMENT DISTRICT
OF SOUTHERN CALIFORNIA
July 23, 2012
Willard G. Yamaguchi
City Clerk
City of Vernon
4305 Santa Fe Ave.
Vernon, CA 90058
RECF-IVED
JUL 2 6 2012
CITY CLERK'S OFFICE
DIRECTORS
ALSERTROSLES, PRESIDENT
LILLIANKAWASAKI, VICE PRESIDENT
WILLARD H. MURRAY, JR., SECRETARY
SERGIOJ CALDERON, TREASURER
ROSERTKATHERMAN, DIRECTOR
ROBB WHITAKER, P.E., GENERAL MANAGER
Re: Executed Tolling Agreement Between Water Replenishment District and City of Vernon
Dear Mr. Yamaguchi
Please find enclosed one fully executed original Tolling Agreement.
Should you have any question regarding this matter, do not hesitate to contact Mr. Scott Ota at (562)275-4210.
Best Regards,
Margari ruz
Administrative Specialist
Attachment
TOLLING AGREEMENT BETWEEN THE CITY OF VERNON AND THE
WATER REPLENISHMENT DISTRICT OF SOUTHERN CALIFORNIA
THIS AGREEMENT is made and entered into as of July 1. 2012, ("Effective Date"), by and
between the City of Vernon, a California charter City and California municipal corporation
("City"), and the Water Replenishment District of Southern California ("District"). City and
District are collectively referred to herein as the "Parties."
RECITALS
1. City desires to enter into a Tolling Agreement with the District to preserve the
City's potential refund claim without filing litigation and/or stop paying the replenishment
assessment at this time.
NOW, THEREFORE, the Parties agree as follows:
Section A. The District is a water replenishment district organized and existing
pursuant to the Water Replenishment District Act, California Water Code Section 60000 et seq.,
and manages the groundwater in the Central and West Coast Groundwater Basins. Pursuant to
the Replenishment District Act, the District is authorized to collect a replenishment assessment
("Assessment") from persons and entities who produce groundwater from either the Central
Groundwater Basin ("Central Basin") or the West Coast Groundwater Basin (`West Basin") in
Los Angeles County, which Assessment takes effect on July 15' each year.
Section B. The City produced groundwater from the Central Basin and/or West Basin
during the years from 2007 to 2011 and paid the Assessment to the District with respect to that
groundwater production, and continues to produce such groundwater.
Section C. On or about August 24, 2010, the Cities of Downey, Signal Hill and
Cerritos (the "Petitioners") filed the action entitled City of Cerritos, etc., et al. v. Water
Replenishment District of Southern California, et al., Los Angeles County Superior Court,
Case No. BS128136 (the "Downey Prop 218 Lawsuit"). In the lawsuit, the Petitioners claim that
Article XIII-D of the California Constitution ("Prop 218") applied to the District's adoption of
Assessments for the period from July 1, 2006 to July 1, 2610. On or about April 25, 2010, the
Los Angeles Superior Court entered an order ruling that Prop 218 applied to the District's
adoption of those Assessments. However, final judgment has not been entered because
Petitioners are prosecuting a cause of action for a monetary refund of the Assessments that
they paid to the District's during the time period alleged in their complaint ("Petitioner's Refund
Claim").
Section D. On or about May 20, 2011, Central Basin Municipal Water District
("CBMW D") filed the action entitled Central Basin Municipal Water District v. Water
Replenishment District of Southern California, et al., Los Angeles County Superior Court,
Case No. BS132202 (the "CBMWD Prop 218 Lawsuit"). In that action, CBMWD alleges, among
other causes of action, claims seeking a writ of mandamus and declaratory relief on the ground
that Prop 218 applies to the District's adoption of the Assessment for the period from
July 1, 2011 to June 30, 2012.
Section E. On or about July 5, 2011, the District filed the action entitled Water
Replenishment District of Southern California v. All Interested Persons, et al., Los Angeles
County Superior Court, Case No. BC464772 (the "WRD Validation Action"). In that action, the
District seeks a validation pursuant to California Code of Civil Procedure Section 860 that its
adoption of the Assessment for the period from July 1, 2011 to June 30, 2012, complied with all
applicable laws, including Prop 218.
Section F. On or about July 5, 2011, the District filed the action entitled Water
Replenishment District of Southern California v. City of Cerritos, et al., Los Angeles County
Superior Court, Case No. BC464773 (the "WRD Declaratory Relief Action"). In that lawsuit,
W RD seeks a declaratory judgment that the District's adoption of the Assessment for the period
from July 1, 2011 to June 30, 2012 complied with all applicable laws, including Prop 218.
Section G. Certain persons and entities who produce groundwater from either the
Central Basin and/or the West Basin have informed the District that (i) if a final judgment is
entered in any of the actions described in Sections I-C through F, above, to the effect that Prop
218 applies to the District's adoption of the Assessment, they may seek a refund of the
Assessments paid to the District since July 1, 2007, to the extent permitted by law, (ii) they wish
to reserve their right to assert a claim for a monetary refund of those Assessments paid to the
District since July 1, 2007 (the "Potential Refund Claim"), and/or (iii) they may not pay any more
Assessments until the actions described in Section I-C through F, above, are resolved and/or
join in one or more of those actions.
Section H. In order for the City to preserve its Potential Refund Claim without filing
litigation and/or stop paying the Assessment at this time, as well as to limit the Parties' litigation
costs, the District and the City enter into this Agreement.
TERMS OF THE AGREEMENT
For valuable consideration, including the covenants provided in this Agreement, the receipt of
which is duly acknowledged by the Parties, the District and the City agree as follows:
A. With respect to Assessments paid by the City to the District during the period
from one year prior to May 20, 2011, through the Termination (as that term is defined in Section
II-G of this Agreement) of this Agreement (the 'Tolling Period"), the District and the City agree
that any and all statues of limitation applicable to the City's Potential Refund Claim for those
Assessments, including but not limited to, the one-year limitation period provided under Section
911.2 of the California Government Code, shall be tolled until this Agreement is terminated.
Provided that this Agreement is not terminated prior to entry of a Final Judgment (as defined in
Section II-G below) in the Downey Prop 218 Lawsuit, the'Tolling Period" shall be extended to
one year before August 24, 2010, if a Final Judgment, as defined in Section II-G below, is
entered on Petitioner's Refund Claim in the Downey Prop 218 lawsuit to the effect that
Petitioners are entitled to a refund Assessment they paid to the District beginning on
August 24, 2009). With respect to Assessments paid by the City to the District during the period
of July 1, 2007, to the commencement of the Tolling Period, the District and the City reserve
their respective rights and defenses as to whether the City's Potential Refund Claim for those
Assessments is barred by the applicable statues of limitation. It is the intent and understanding
of the Parties that by entering into this Agreement, the City is securing, and the District is
agreeing to, the application of the one-year limitation period provided in Government Code
Section 911.2 based on the date of the filing of the (i) CBMWD Prop 218 Lawsuit, which,
therefore, provides the City with the same rights under Government Code Section 911.2 as
claimed by the petitioner and its purported class in the CBMWD Prop 218 Lawsuit, or (ii)
Downey Prop 218 Lawsuit if the Tolling Period is extended as provided in this Section II -A.
-2-
B. In any litigation commenced by the City on its Potential Refund Claim for
Assessments paid to the District since July 1, 2007, the District shall not assert any defense
based on waiver, (aches, or estoppel attributable to the City's payment of the Assessment and
forbearance from filing litigation during the Tolling Period. Except for the defenses specified in
the first sentences of Sections II -A and II-B of this Agreement, the District reserves all of its
defenses applicable to the City's Potential Refund Claim, including but not limited to the amount
of any refund that may be owing to the City.
C. Until this Agreement is terminated pursuant to the provisions of Section II-G
below, the City shall continue to pay the Assessment to the District based on the City's
production and in accordance with the Replenishment Act.
D. Until this Agreement is terminated pursuant to Section II-G below, the City shall
(i) not join as a party to, or intervene in, or provide funding, directly or indirectly, for either the
Downey Prop 218 Lawsuit or the CBMW D Prop 218 Lawsuit, and (ii) not take any position in
opposition to the District in either the WRD Validation Action or the WRD Declaratory Relief
Action. Until this Agreement is terminated pursuant to Section II-G below, neither the City nor
the District shall commence litigation against the other Party respect to the City's Potential
Refund Claim.
E. If the City seeks to commence litigation on its Potential Refund Claim after the
Termination of this Agreement, the City shall first file an administrative claim with the District
pursuant to the District's claim procedures provided in its Administrative Code (the "District's
Claims Procedures") and in accordance with the Government Claim Act (California Government
Code Section 900 et seg.), including but not limited to Government Code Section 935. (A copy
of the District's Claims Procedures in effect as of the Effective Date of this Agreement is
attached hereto as Exhibit A). The City shall not file any lawsuit seeking a refund of the
Assessments until the City files such an administrative claim with the District and the District has
acted on that claim in accordance with the provisions of the District's Claims Procedures and
the applicable provisions of the Government Claims Act. Except as otherwise provided in this
Agreement, the City reserves the rights with regard to any claim or cause of action, including its
Potential Refund Claim, whether against the District or against any third party.
F. This Agreement shall be modified to incorporate any more favorable provision in
any tolling agreement that the District may hereinafter enter into with another person or entity
who produces groundwater from either the Central or West Basin with respect to that
groundwater producer's claim for a monetary refund of the Assessment based on a claims that
District failed to comply with Prop 218.
G. This Agreement shall terminate upon the earlier of: (i) thirty (30) calendar days
after either the District or the City provides written notice to the other Party that it is exercising
the right to. unilaterally terminate the Agreement or (ii) a "Final Judgment" is entered in
connection with any of the lawsuits described in Section I-C through F, above (the "Subject
Lawsuits") that determines the Prop 218 applies to the District's adoption of the Assessment.
For purposes of this Agreement, the term "Final Judgment' is defined as the thirtieth (30t)
calendar day after the latter of (1) the last day by which a party to any of the Subject Lawsuits
was required to file a Notice of Appeal of a judgment entered in a Subject Lawsuit and no such
Notice of Appeal is filed (as of the Effective Date of this Agreement, Rule 8.104 of the Cal.
Rules of Court governs the time by which a Notice of Appeal must be filed, and a copy of Rule
8.104 is provided in Exhibit B hereto); (ii) the date by when a decision by a Court of Appeal in a
case where a Notice of Appeal is filed by a party to a Subject Lawsuit becomes final in
3-
accordance with applicable law and no petition for review is filed with the California Supreme
Court (as of the Effective Date, Rule 8.264 of the Cal. Rules of Court governs the finality of
decisions by California courts of appeal, and a copy if Rule 8.264 is provided in Exhibit B
hereto); or (iii) the date by when a decision by the California Supreme Court on any petition for
review that is filed by a party to a Subject Lawsuit becomes final (as of the Effective Date of this
Agreement, Rule 8.532 of the Cal. Rules of Court governs the finality of decisions by the
California Supreme Court, and a copy of Rule 8.532 is provided in Exhibit B hereto). The
parties waive any right to assert, at any time, that this Tolling Agreement has itself been
rendered unenforceable by operation of law or by passage of time. Upon termination of this
Agreement, the parties shall be restored to the same status they occupied and rights they
enjoyed as of the Effective Date.
H. None of the statements or promises contained in this Agreement shall be
construed as any admission of any kind concerning the subject matter of this Agreement.
Moreover, this Agreement may not be offered in any court or legal proceedings by any Party for
any purpose except (1) to prove the Tolling Period for commencement of litigation or (2) to
resolve a dispute between the Parties regarding the interpretation or enforcement of this
Agreement.
I. The Parties to this Agreement represent that the signatories below have the
actual authority to bind their respective Parties to the terms of this Agreement, and acknowledge
that each Party to this Agreement has relied upon that apparent authority in entering this
Agreement.
J. This Agreement shall be construed and governed exclusively by the laws of the
State of California.
K. Inasmuch as this Agreement is the product of joint drafting and negotiation
between the Parties, it is agreed and understood that the general rule that ambiguities are to be
construed against the drafter shall not apply to this Agreement. In the event that any language
of this Agreement is determined to be ambiguous, each Party shall have an opportunity to
present evidence as to the actual intent of the Parties with respect to any such ambiguous
language.
L. This Agreement may be executed in one or more counterparts, including
facsimile copies, each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
M. This Agreement constitutes the entire understanding between the Parties with
respect to the matters set forth herein. Except as otherwise provided herein, this Agreement is
intended to be the final expression of the Agreement between the Parties with respect to the
subject matter of this Agreement and supersedes and fully and completely extinguishes any
prior understandings or agreements by or between the Parties, whether oral or in writing.
N. Any amendment or modification of this Agreement must be in writing and signed
by the Parties. Any amendment or modification not made in this manner shall have no force or
effect.
O. This Agreement shall bind and inure to the benefit of the respective successors
and assigns of each Party.
m
P. Delivery of any notices required under this Agreement shall be provided, and
deemed complete, upon facsimile transmission, by deposit in the overnight mail, or upon actual
hand delivery upon both the Party and its attorney as follows:
To the City:
City of Vernon
Willard G. Yamaguchi, Chief Deputy City Attorney
4305 Santa Fe Avenue
Vernon, CA 90058
Telephone: (323) 583-8811
Facsimile: (323) 826-1438
With a copy to:
City of Vernon
Kevin Wilson, Director of Community Services & Water
4305 Santa Fe Avenue
Vernon, CA 90058
Telephone: (323) 583-8811
Facsimile: (323) 826-1435
To the District:
Mr. Robb Whitaker
General Manager
Water Replenishment District of Southern California
4040 Paramount Boulevard
Lakewood, CA 90712
Telephone: (562)921-5521
Facsimile: (562) 921-6101
With a copy to:
Edward J. Casey, Esq.
Alston & Bird LLP
333 South Hope Street, 16th Floor
Los Angeles, CA 90071
Telephone: (213) 576-1000
Facsimile: (213) 576-1100
[Signatures Begin on Next Page].
-5-
IN WITNESS WHEREOF, the Parties have signed this Agreement as of the date stated
in the introductory clause.
City of Vernon, a California charter City
and California municipal corporation
Mayor / Mayor Pro -Tern
WATER REPLENISHMENT DISTRICT OF
SOUTHERN ALIFORNIA
By.:
Name: ert obles
OT Directors
APPROVED AS TO FORM:
Edward J. Casey
Attorneys for Water Replenishment District of
Southern California
EXHIBIT A
Rule 8.100 APPELLATE RULES
Information Statement (form APP-004) and a notice
that the statement must be filed within 10 days.
(2) Within 10 days after the clerk mails the notice
required by (1), the appellant must serve and file in
the reviewing court a completed Civil Case Informa-
tion Statement, attaching a copy of the judgment or
appealed order that shows the date it was entered.
(3) If the appellant fails to timely file a case
information statement under (2), the reviewing court
clerk must notify the appellant by mail that the
appellant must file the statement within 15 days after
the clerk's notice is mailed and that if the appellant
fails to comply, the court may either impose monetary
sanctions or dismiss the appeal.. If the appellant fails
to file the statement as specified in the notice, the
court may impose the sanctions specified in the
notice.
(Formerly Rule 1, adopted, eff. Tan. 1, 2002. As amend-
ed, eff. Jan. 1, 2003; Aug. 17, 2003. Renumbered Rule
8.100 and amended, eff. Jan. 1, 2007 As amended off.
Jan. 1, 2008; July 1, 2009.)
Advisory Committee Comment
Subdivision (a). In. subdivision (a)(1), the refer-
ence to "judgment" is intended to include part of a
judgment. Subdivision (a)(1) includes an explicit
reference to "appealable order' to ensure that liti-
gants do not overlook the applicability of this rule to
such orders.
Subdivision (b). In the interest of consistency,
subdivision (b)(1) recommends a preferred word-
ing —"Clerk, Court of Appeal" —for the name of the
payee of checks or money orders for the filing fee.
The provision is not mandatory..
Subdivision (c)(2). This subdivision addresses the
content of a clerk's notice that a check for the filing
fee has been dishonored or that the reviewing court
has received a notice of appeal without the filing fee,
a certificate of cash payment, or an application for, or
order granting, a fee waiver. Rule 8.26(t) addresses
what an appellant must do when a fee waiver
application is denied. _
Subdivision (e). Under subdivision (e)(2), a notifi-
cation of the filing of a notice of appeal must show
the date that the clerk mailed the document. This
provision is intended to establish the date when the
20-day extension of the time to file a crom-appeal
under rule 8.108(e) begins to run..
Subdivision (e)(1) requires the clerk to mail a
notification of the filing of the notice of appeal to the
appellant's attorney or to the appellant if unrepre-
sented. Knowledge of the date of that notification
allows the appellant's attorney or the appellant to
track the running of the 20-day extension of time to
file across -appeal under rule 8.108(e)..-
OFFICIAL FORMS
Mandatoty and optional Forms adopted and
approved by the Judicial Council are set out in
Westk California Judicial Council Forms Pam-
phlel.
Ruiz 8.104. TIME TO APPEAL.
(a) Normal time
Unless a statute or rule 8.108 provides otherwise, a
notice of appeal must be filed on or before the earliest
of:
(1) 60 days after the superior court clerk serves the
party filingthe notice of appeal with a document
entitled "Notice of Entry" of judgment or a file -
stamped copy of the judgment, showing the date
either was served;
(2) 60 days after the party filing the notice of
appeal serves or is served by a party with a document
entitled "Notice of Entryof judgment or a file -
stamped copy of the judgment, accompanied by proof
of service; or
(3) 180 days after entry of judgment.
(4) Service under (1) and (2) may be by any
method permitted by the Code of Civil Procedure,
including electronic service when permitted under
Code of Civil Procedure section 1010.6 and. rules
2.250-2.261.
(b) No extension of time; late notice of appeal
'Except as provided in rule 8.66, no court may extend
the time to file a notice of appeal. If a notice of appeal
is filed late, the reviewing court must dismiss the appeal.
(e) Periodic payment of judgments against public
entities
If a public entity elects, under Government Code
section 984 and rule 3.1804, to pay a judgment in
periodic payments, subdivision (a) of this rule governs
the time to appeal from that judgment but the periods
prescribed in (a)(1) and (2) are each 90 days.
(d) What constitutes entry
For purposes of this rule:
(1) The entry date of a judgment is the date the
judgment is filed under Code of Civil Procedure
section 668.5,or the date it is entered in the judgment
book.
(2) The entry date of an appealable order that is
entered in the minutes is the date it is entered in the
permanent minutes. But if the minute order directs
that a written order be prepared, the entry date is the
date the signed order is filed; a written order
prepared under rule 3.1312 or similar local rule is not
such an order prepared by direction of a minute
order.
(3) The entry date of an appealable order that is
not entered inthe minutes is the date the signed
order is filed.
(4) The entry date of a decree of distribution in a
probate proceeding is the date it is entered at length
in the judgment book or other permanent. court
record.
(e) Premature notice of appeal
494
(1) A notice
rendered but b
treated as filed
(2) The revit
appeal filed aft,
its intended rul
ment, as filed i
(f) Appealable
As used in (a
appealable order
order.
(Formerly Rule 2,
ed, eff. Jar. 1,
amended, eff. Jay
2010.)
Ad,
Subdivision
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must show th
document. T
that the 60-
begins to run.
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excuse a late
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(a) Extensi
This rule o
otherwise pr
shorten the '
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8.104(a) gave
(b) Motiot
SUPREME COURT & COURTS OF APPEAL Rule 8.108
I
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ves the
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id rules
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ter that is
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,ution in a
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tent court
(1) A notice of appeal filed after judgment is
rendered but before it is entered is valid and. is
treated as filed immediately after entry of judgment.
(2) The reviewing court may treat a notice of
appeal filed after the superior court has announced
its intended ruling, but before it has rendered judg-
ment, as filed immediately after entry of judgment.
(f) Appealable order
As used in (a) and (e), "judgment" includes an
appealable order if the appeal is from an appealable
order. - -
(Formerly Rule 2, adopter,, eff. Jan. 1, 2002. As amend
ad, eff.. Jan. 1, 2005 Renumbered Rule 8.104 and
amended, eff. Jan.. 1, 20OZ As amended, eft: Jan. 11.
2010.)
Advisory Committee Comment
Subdivision (a). Under subdivision (a)(1), a no-
tice of entry of judgment (or a copy of the judgment)
must show the date: on which the clerk served the
document. The proof of service establishes the date
that the 60-day period under subdivision (a)(1)
-begins to run.
Subdivision (a)(2) requires that a notice of entry of
judgment (or a copy of the judgment) served by or on
a party he accompanied by proofofservice.. The
proof of service establishes the date that the 60-day
period under subdivision (a)(2) begins to run. Al-
though the general rule on service (rule 8.25(a))
requires proof of service for all documents served by
parties, the requirement is reiterated here because of
the serious consequence of a failure to file a timely
notice of appeal (see subd. (e)).
Subdivision (b). See rule 8.25(b)(5) for provisions
concerning the timeliness of documents mailed by
inmates and patients from custodial institutions.
Subdivision (b) is declarative ofthe ease law, which
holds that the reviewing court lacks jurisdiction to
excuse a late -filed notice of appeal. (HollisterConm-
lesvent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-
674;-Estate of Hanley (1943) 23 Cal2d M, 122-124.)
In criminal cases, thetime for filing a notice of
appeal is governed by rule 9.308 and bythe case law'
of "constructive filing." (Sec, e.g., In re Benoit (1973)
10 Cal.3d 72. ) .
OFFICIAL FORMS
Mandatory and optional Forms adopted and
approved by the Judicial Council are set out in
West's California Judicial Council Fonns Pam-
phlet.
RULE 8.108. EXTENDING THE TIME TO APPPAL
(a) Extension of time
This rule operates only to extend the time to appeal
otherwise prescribed in rule-8.104(a); it does not
shorten the time to appeal If the normal time to
appeal stated in rule 8.104(a) is longer than the time
provided in this rule, the time to appeal stated in rule
8.104(a) governs.
(b) Motion for new trial
If any party serves kind files a valid notice of intention
to move for a new trial, the time to appeal from the
judgment is extended for all parties as follows:
(1) If the motion is denied, until the earliest of:
(A) 30 days after the superior court clerk mails,
or a party serves, an order denying the motion or a
notice of entry of that order;
(B) 30 days after denial of the motion by opera-
tion of law; or
(C) 180 days after entry of judgment.
(2) If any party serves an acceptance of a condi-
tionally ordered additur or remittitur of damages
pursuant to a trial court finding of excessive or
inadequate damages, until 30 days after the date the
party serves the acceptance.
(c) Motion to vacate judgment
If, within the time prescribed by rule 8,104 to appeal
from the judgment, any party serves and files a valid
notice of intention to -niove—or a valid motion —to
vacate the judgment, the time to appeal from' the
judgment is extended for all parties until the earliest of:
(1) 30 days after the superior court clerk mails, or
a party serves, an order denying the motion or a
notice of entryof that order;
(2) 90 days after the first notice of intention to
move —or motion —is filed; or
(3) 180 days after entry of judgment.
(d) Motion for judgment notwithstanding the verdict
(1) If any party serves and files a valid motion for -
judgment notwithstanding the verdict and the motion
is denied, the time to appeal from the judgment is
extended for all parties until the earliest of:
(A) 30 days after thesuperior court clerk mails,.
or a party serves, an order decrying the motion or a
notice of entry of that order;
(B) 30 days after denial of the motion by opera-
tion of law; or
(C) 180 days after entry of judgment.
(2) Unless. extended by (e)(2), the time to appeal
from an order denying a motion for judgment not-
withstanding the verdict is governed by rule 8,104.
(e) Motion to reconsider appealable order
If any party serves and files a valid motion to
reconsider an appealable order under Code of Civil
Procedure section 1008, subdivision (a), the time to
appeal from that order is extended for all parties until
the earliest of:
(1) 30 days after the superior court clerk mails, or
a party serves, an order denying the motion or a
notice of entry of that order;
(2) 90days after the first motion to reconsider is
filed; or - -
(3) 180 days after entry of the appealable order.
(f) Cross -appeal
495
has expired to file all briefs and papers, including any
supplemental brief permitted by the court. -
(2) If the Supreme Court transfers a cause to the
Court of Appeal and supplemental briefs may be filed
under rule 8.200(b), the cause is submitted when the -
last such brief is or could be timely filed. The Court
of Appeal may order the cause submitted at an earlier
Lime if the parties so stipulate.
(a), Vacating submission
(1) Except as provided in (2), the court may vacate
submissiononly by all order stating its reasons and
setting a timetable for resubmission,
(2) If a causeissubmitted under (d)(2), an order
-
setting oral argument vacates submission and the
cause is resubmitted when the court has heard oral
argument or approved its waiver. -
(Formerly Rule 23, adapteri, eff. Jan. 1, 2003. Renumber-
ed Rule 8.256 and amended, eff. Jan. 1, 2002)
OITICIAL FORMS
Mandatory and optional Forms adopted and
approved by the Judicial Council are set out in
West's California Judicial Council Forms Pam-
phlet.
RULE 8.260. OPINIONS [RESERVED, _
EFF. JAN. 1, 2007]
ROLE 8.264. IALING, FINALITY, AND
MODIFICATION OF DECISION
_ (a) b'ilingthe decision
(1) The Court of Appeal clerk must promptly file
allopinions and orders of the court and promptly
send copies showing the filing date to the parties and,
when relevant, to the lower court or tribunal. -
(2) A decision by opinion must identify the partici- .
paling justices, including the author of the majority
opinion and of any concurring or dissenting opinion,
or the justices participating in a "by the court"
opinion.
(b) Finality of decision
(1) Except as otherwise provided in this rule, a
Court of Appeal decision in civil appeal; including
an order dismissing all appeal involuntarily, is final in
that court 30 days after filing.
(2) The following Court of Appeal decisions are
final in that court on filing:
(A) The denial of a petition for writ of superse_
deas; and
(B) The dismissalof all appeal on request or
stipulation. _ -
(3) If a Court of Appeal certifies its opinion for
publication or partial publication after filing its deci-
sion and before its decision becomes final in that
court, the finality period runs from the filing date of
the order for publication.
(c) Modificationofdecision
(1) A reviewing court may modify decision until
the :decision is final in that court. If the clerk's office
is closed on the date of finality, the court may modify
the decision on the next day the clerk's office is open,
(2) An order .modifying an opinion must state
whether it changes the appellate judgment. A modi-
fication that does not change the appellate judgment
does not extend the finality date of the decision. If a
modification changes the appellate judgment, the
- finality period runs from the filing date of the
modification order.
(d) Consent to Increaseor decrease inamount .of
judgment
If a Court of Appeal decision conditions the affir-
mance of a money judgment on a parry's consent to an
increase or decrease in the amount, the judgment is
reversed unless, before the decision is final under (b),
the party serves and files two copies of a consent in the
Court of Appeal. If a consent is filed, the finality
period runs from the filing date of the consent. The
clerk must send one file -stamped copy of the consent to
the superior court with the remittitur.
(Formerly Rule 24, adopted eff. Jan. 1, 2003. Renumber-
ed Rule 8.264 and amended, eff:' Jan. 1, 20OZ As
- amended, eff. Jan. 1, 2009.)
Advisory Committee Comment -
Subdivision (b). As used in subdivision (b)(1),.
"decision" includes all interlocutory orders of the
Court of Appeal: (See Advisory Committee Core
ment to rule 8.500(a) and (e).) This provision
addresses the finality of decisions in civil appeals and,
through a cross-reference in rule 8.470, in juvenile
appeals. See rule 8.366 for provisions addressing the
finality of decisions in proceedings under chapter 3,
relating to criminal appeals; rule 8.387 for provisions
addressing finality of decisions under chapter 4,
relating to habeas corpus proceedings; and rule 8.490
for provisions addressing the finality of decisions in
proceedings under chapter 7, relating to writs of
mandate, certiorari, and prohibition.
Subdivision (b)(3) provides that a postilling deci-
sion of the Court of Appeal to publish its opinion in
whole under rule 8.1105(c) or in part under rule
8.1100(a) restarts the 30-day finality period. This
provision is based on rule 40-2 of the United States
Circuit Rules (9th Cir.). It is intended to allow
parties sufficient lim0to petition the Court of Appeal
for rehearing and/or the Supreme Court for review—
. and to allow potential amici curiae sufficient time to
express their views —when the Court of Appeal
changes the publication status of an opinion. The
rule thus recognizes that the publication status of an
opinion may affect a party's decision whethertio file a
petition for rehearing and/or a petition for review.
OFFICIAL FORMS. -
Mandatory and optional Forms adopted and
approved by the Judicial Council are set out in
West's California Judicial Council Forms Pam-
phlet
Ruu
- (a) Power to ord
(1) On petiti(
reviewing court
that is not final i
(2) An.order
decision is final
date of finality,
next day the cle
(b) Petition an
(1) A party
rehearing withi
(A) The
(I1) A pu
period unde
already filed
(C) Am(
_ judgment in
(D) The
(2) A parq
for rehearing
The clerk 'no
any order rt
notify the par
method. An
8 days after I
otherwise. 1
be granted u: -
(3) The p
relevant pro•
(4) Ilefor
the presidin;
to file a tim(
(c) No ester
The time
rehearing in t
If the court
decision is fin
(d) Effect.
An order
and any 011ie
large in the C
(Formerly R
amended, eff
amended, of
2009.)
Mani
approv,
West's
phlet.
(a) Issn:
520
SUPREME COURT & COURTS OF APPEAL Mule 8.540
r vacate its
a writ of
v..S'upcnar
udgment of
the petition
der to show
cases -illus-
judgment it
rit or miler
view; if the
.ly include a '
o issue the
n.
of this rule
als of review
Providently"
c court may
asnns. r-or
d" case, its
,try pending
rid" matter
y decided in
itional issue
ourt or the
t may also
renders the
Parties reach
sonal relief
r construe a
mrt can act.
Court now
it which the
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-„jurisdictions'
ly the same
..icto retrans-
The Court
;e.after the
creme Court
arder to the
1ppeal clerk
.ion immedi.
I made final
r under rule
.titur; if the
remittitur—
let (see rule
ver action is
intended to
(1) those in
purpose of
Appeal for.
may order"
:it the court,
lncs that a
de 8.512(c))
Pf Appeal in
litional issue
to Court of
intended to
Court, after
Imnsfening In itself before decision a cause pending in
the Court of Appeal, rehrinsfea the matter to that
court without decision and with or without instrue-
(ions.
RuLR 8.532. FILING, 6,NALrrV, AN11
h1onimcmnON ol+ nGctsioN
(a) Filing the decision
The Supreme Court clerk must promptly file- all
opinions and orders issued by the court and promptly
send copies showing the filing date to the parties and,
when relevant, to the lower court or tribunal
(b) Finality of decision
(1) Except as provided in (2), a Supreme Court
decision is final 30 days after filing unless:
(A) The court orders a shorter period; or
(B) Before the 30-day period or any extension
expires the court orders one or more extensions,
not to exceed a total of 60 additional days.
(2) The following Supreme Court decisions are
final on filing: -
(A) The denial of a petition for review of a
Court of Appeal decision;
(B) A disposition ordered under rule 8.528(b),
(d), or (e);
(C) The denial of petition fora writ within the
court's original jurisdiction without issuance of an
alternative writ or order to show cause; and
(D) The denial of a petition for writ of superse-
deals.
(c) Modification ofdecision
_ The Supreme Court may modify a decision as provid-
ed in rule 8.264(c).
(Formerly Rule 29.4, adopted, eff. Jan. 1, 2003, Renum-
bered Rule 8.532 and amended, eff. Jan. 1, 2007.)
Advisory Committee Comment
Subdivision (b). Subdivision.(b)(2)(A) recognizes
the general rule that the denial of a petition for
review of a Court of Appeal decision is final on filing.
Subdivision (b)(2)(B)-(D) recognizes several addi-
tional types of Supreme Court decisions that are final
on filing. Thus (b)(2)(B) recognizes that a dismissal,
a transfer, and a retransfer under (b), (d), and (e),
- respectively, of rule 8.528 are decisions final on. filing.
A remand under rule 8.528(c)is not a decision final
W; on filing because it is not a separately filed order;
=:, 8 P Y
rather, as part of its appellate judgment at the end of
its opinion in such cases the Supreme Court simply.
<Si< orders the cause remanded to the Court of Appeal
for disposition of the remaining issues in the appeal
Subdivision (b)(2)(C) recognizes that an order
denying a petition for a writ within the court's original
jurisdiction without issuance of an alternative writ or
order to show cause is fin] on filing. The provision
reflects the settled Supreme Court practice, since at
least 1989, of declining to file petitions for rehearing
in such matters. (See, e.g., In re Hayes (5004421)
Minutes, Cal. Supreme Ct., July 28, 1989 ['"rile
motion to vacate this court's order of May 18, 1989
[denying a petition for habeas corpus without opin-
iou] is denied. because the California Rules of
Court do not authorize the filing of a petition for
rehearing of such an order, the alternate request to
consider the matter as a petition for rehearing is
denied."].)
Subdivision (b)(2)(D) recognizes that an order
denying a petition for writ of supersedeas is final on
filing.
Rum 8.536. REHEARING
(a) Power to order rehearing
The Supreme Court may order rehearing as provided
in rule.8.268(a).
(b) Petition and answer
- A petition for rehearing and any answer must comply
with rule 8.268(b)(1) and (3). Any answer to the
petition must be served and filed within eight days after
the petition is filed. Before the Supreme Court deci-
sion is final and for good cause, the Chief Justice may
relieve a party from a failure to file a timely petition or
answer.
(e) Extension of lhne
The time for granting or denying a petition for
rehearing in the Supreme Court maybe extended under
rule 8.532(b)(1)(B). If the court does not rule on the
petition before the decision is final, the petition is
deemed denied.
(d) Determinationofpetition
An order granting a. rehearing must be signed by at
least four justices; an order denying rehearing may be
signed by the Chief.Justice. alone.
(e) Effect of granting rehearing
Anorder granting a rehearing vacates the decision
and any opinion filed in the case and sets the cause at
large in the Supreme Court.
(Formerly Rule.29.5, adopted, eff. Jan. 1, 2003. As
amended, eff. Jan. 1,-2004. Renumbered Rule 8.536 and
amended, eff. Jan. 1, 2007.)
RULE: 8.540. RRMII'nTUR
(a) Proceedings requiring issuance or remittitur
The Supreme Court must issue a remittitur after a
decision in:
(1)..A review of a Court of Appeal decision; or
(2) An appeal from a judgment of death or in a
cause transferred to the court under rule 8.552.
(b) Clerk's duties (1) The clerk must issue a remittitur when a
decision of the court is final. The remittitur is
deemed issued when the clerk enters it in the record.
(2) After review of a Court of Appeal decision, the
Supreme Court clerk must address the remittitur to
the Court of Appeal and send that court two copies of
563
EXHIBIT B
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WATER REPLENISHMENT DISTRICT
OF SOUTHERN CALIFORNIA
ADMINISTRATIVE CODE
Revised
January, 2011
Board of Directors
Willard H. Murray, Jr., Division 1
Robert Katherman, Division 2
Lillian Kawasaki, Division 3
Sergio. Calderon, Division 4
Albert Robles, Division 5
General Manager, Robb Whitaker, P.E.
The District's claims presentation procedure shall govern all claims against the District for
money or damages which are excepted by Government Code Section 905, and which are
not governed by any other statutes or regulations expressly relating to such claims.
19.1 Claims Presentation Procedures
19.1.1 Claims against the District
This claims presentation procedure shall govern all claims against the District
for money or damages which are accepted by Government Code Section 905,
and which are not governed by any other statutes or regulations expressly
relating to such claims.
19.1.2 Claim Prerequisite
All persons or entities which have any claim for money or damages against the
District shall first file a claim in accordance with the procedures set forth herein
as a prerequisite to the filing of any lawsuit against the District.
19.1.3 Accrual of Cause of Action
For the purpose of computing the time limits prescribed herein, the date of the
accrual of a cause of action to which a claim relates Is the date upon which the
cause of action would be deemed to have accrued within the meaning of the
statute of limitations which would be applicable to a cause of action based
upon such claim.
19.1.4 Contents and Presentation of Claim
A claim shall be presented by the claimant or by a person acting on his or her
behalf and shall show all of the following:
a)_ The name and post office address of the claimant.
b) The post office address the person presenting the claim desires the
notices to be sent.
c) The date, place and other circumstances of the occurrence or
transaction, that give rise to the claim asserted.
d) A general description of the indebtedness, obligation, injury, damage or
loss incurred so far as it may be known at the time of presentation of
the claim.
e) The name or names of the District employee or employees causing the
injury, damage, or loss, if known.
f) The amount claimed if it totals less than ten thousand dollars
($10,000.00) as of the date of presentation of the claim, including the
estimated amount of any prospective injury, damage, or loss; Insofar as
It may be known at the time of presentation of the claim, together with
the basis of computation of the amount claimed. If the amount claimed
.Administrative Code - — 112
Water Replenishment District of Southern California October 21, 2011
exceeds ten thousand dollars ($10,000.00), no dollar amount shall be
included in the claim. However, the claim shall indicate whether
jurisdiction over the claim would rest in municipal or superior court, in
the event a lawsuit is flied on the claim.
g) The claim shall be signed by the claimant or by some person acting on
his or her behalf.
19.1.5 Time for Presentation of Claim
Any claim relating to a cause of action for death or for injury to person or to
personal property or growing crops shall be presented no later than six months
after the accrual of the cause of action. A claim relating to any other cause of
action shall be presented no later than one year after the accrual of the cause
of action.
19.1.6 Amendment of Claims
19.1.7
Any claim may be amended at any time before the expiration of the period
designated in 19,1.5 above, or before final action on such claim is taken by the
Board of Directors, whichever is later. The amended claim must relate to the
same transaction or occurrence that gave rise to the original claim. The
amendment shall be considered a part of the original .claim for all purposes.
Notice of Insufficiency of Claim
If, to the opinion of the General Manager or such other person designated by
the Board to review claims submitted to the District, a claim fails to comply
substantially with the requirements of this procedure, the District may give
written notice of the insufficiency of such claim within 20 days after
presentation of the claim, which notice shall state with particularity the defects
or omissions in the claim. The Board may not take action on the claim for a
period of 15 days after such notice Is mailed.
Notice of Late Claim
Where a claim which must be presented not later than six months after accrual
of the cause of action is presented after such time without an application for
leave to present late claim, the General Manager or such other person
designated by the Board may, at any time within 45 days after the claim is
presented, give written notice to the person presenting the claim that the claim
was not filed timely and that it is being returned without further action.
19.1.9 Application for Leave to Present Late Claim
When a claim that Is required to be presented, no later than six months after
the accrual of the cause of action is not presented within such time, the
claimant must -make written application to the District for leave to present such
claim.
An Application for Leave to Present Late Claim must be presented to the
District as hereinafter provided within a reasonable time not exceed one
year after the accrual of the cause of action. The application shall state the
Administrative Coda
Water Replenishment District of Southern Callfornia - October 21, 2011
Administrative Code
reason for the delay in presenting the claim, and the proposed claim shall be
attached to the application.
In computing the one year period within which an Application for Leave to
Present Late Claim must be made, that time during the person who sustained
the alleged injury, damage or loss is a minor shall be counted, but the time
during which he or she is mentally incapacitated and does not have a guardian
or conservator of his or her person shall not be counted..
The Board of Directors shall grant or deny the application for leave to present
late claim within 45 days after it is presented to the District. The claimant and
the District may extend the period within which the Board of Directors is
required to act by written agreement made before the expiration of the 45 day
period.
The Board of Directors shall grant the Application for Leave to Present Late
Claim where one or more of the following Is applicable:
a) The failure to present the claim was through mistake, Inadvertence,
surprise or excusable neglect and the District was not prejudiced in its
defense of the claim by the failure to present the claim within the time
required.
b) The person who sustained the alleged injury, damage or loss was a
minor during all of the time provided for presentation of the claim.
c) The person who sustained the alleged injury, damage or loss was
physically or mentally incapacitated during all of the time provided for
presentation of the claim, and because of such disability failed to
present the claim during such time.
d) The person who sustained the alleged injury, damage or loss died
before the expiration of the time specified for presentation of the claim.
If the Board fails or refuses to act on an Application within the time prescribed
In Section 19.1.2 above, the Application shall be deemed to have been denied
on the 45th day after presentation or, if the period within which the Board is
required to act Is extended by agreement pursuant to this Section, the last day
of the period specified in the agreement.
If the Application is denied, the notice of such denial shall include a warning in
substantially the following form:
• "Warning: If you wish to file a court action on this matter, you
must first petition the appropriate court for an order relieving you
from the provisions of Government Code Section 945.4 (Claims
Presentation Requirement). See Government Code Section
946.6. Such petition must be filed with the court within six
months from the date your application for leave to present a late
claim was denied."
114
Water Replenlshment District of Southern California - October 21, 2011
• "You may seek the advice of an attorney of your choice in
connection with this matter. If you desire to consult with an
attorney you should do so immediately."
e)
If an Application for Leave to Present a Late Claim is granted by the
Board of Directors, the claim shall be deemed to have been presented
to the Board on the day that leave to present the late claim is granted,
19.1.10 District Action on Claim
a)
The Board of Directors shall act on a claim within 45 days after the
claim has been presented. If a claim is amended, the Board shall act
on the amended claim within 45 days after the amended claim is
presented.
b)
The claimant and the District may extend the period within which the
Board is required to act on the clalm by written agreement made (a)
before the expiration of such period; or (b) after the expiration of such
period if an action based on the claim has not been commenced and is
not yet barred by the applicable statute of limitations.
c)
If the Board fails or refuses to act on a claim within the time prescribed,
the claim shall be deemed to have been rejected by the Board on the
last day of the period within which the Board was required to act upon
the claim.
d)
The Board may act on a claim in one of the following ways:
• If the Board finds the claim is not a proper charge against the
District, it shall reject the claim.
a If the Board finds the claim is a proper charge against the
District and is for an amount justly due, it shall allow the claim.
• If the Board finds the claim is a proper charge against the
District but is for an amount greater than that which is justly due,
It shall either reject the claim in its entirety, or allow it in the
amount justly due and reject it as to the balance.
• If the District's liability or the amount justly due is disputed, the
Board may reject the claim or may settle the claim.
e)
The District shall pay the amount allowed on the claim or in
compromise of the claim in the same manner as If the claimant had
obtained a final judgment against the District for that amount. The
District may require the claimant to execute a release in favor of the
District as a condition of allowing or compromising the claim. If an
agreement for payment of the claim in Installments is made, the District
may, in its discretion, prepay any or more installments or any part
of an installment. Any agreement for payment of a claim in more than
ten equal annual installments must be approved by a court of
competent jurisdiction.
Administrative Coda
Water Replenishment District
of Southern California October 21, 2011
19.1.11 Delivery or Mailing of Claim, Amendment, or Application
Any notice of a Board action with respect to a claim or application for leave to
present a late claim shall be given by either of the following methods:
a) Personally delivering the notice to the person presenting the claim or
making the application; or
b) Mailing notice to the address, if any, stated in the claim or application
as the address to which the person presenting the claim or making the
application desires notices to be sent or, if no such address Is stated in
the claim or application, by mailing the notice to the address, if any, of
the claimant as stated in the claim or notification.
No notice need by given where the claim or application fails to state either an
address to which the person presenting the claim or making the application
desires notices to be sent or an address of the claimant.
Where notice from the District is given by mail, the notice shall be mailed in
the manner prescribed herein, and deposited in the United States Post Office,
or a mailbox, sub -post office, substation, or mail chute, or other likely facility
regularly maintained by the government of the United States, in a sealed
envelope, properly addressed, with postage paid. The notice shall be deemed
to have been presented and received at the time of the deposit. Proof of
mailing may be made in the manner prescribed by Section 1013a of the Code
of Civil Procedure. The District may Include in any written agreement to which
it is a party, provisions governing the presentation of any claims arising out of
or related to that agreement and the consideration and payment of such claim.
Such agreement may incorporate by reference these claim presentation
procedures and may include a requirement that a claim be presented and
acted upon as a prerequisite to suit thereon.
The District may establish a committee of not less than three of its members to
perform the functions of the Board regarding claims presented to the District.
The District may authorize an employee of the District to perform those
functions that the Board requires under this procedure, but such employee
may only allow, compromise or settle a claim against the District if the amount
to be paid pursuant to the allowance, compromise or settlement does not
exceed five thousand dollars ($ 5,000,00).
19.1.12 Prohibition against Suit In Absence of Presentation of Claim
No suit for money or damages may be brought against the District on a cause
of action for which a claim is required to be presented in accordance with
these claims presentation procedures or with the Tort Claims Act (Government
Code Sections 900 et seq.) until a written claim therefore has been presented
to the District and has been acted upon by the Board of Directors, or has been
deemed to have been rejected by the Board, in accordance with this
procedure and with the Tort Claims Act.
Administrative Code -
110
Water Replenishment DlstrM of Southern California - October 21, 2011
Any suit brought against the District on a cause of action where a claim is
required to be presented must be commended:
a) If written notice of Board action on the claim is given by the District, not
later than six -months after the date such notice is personally delivered
or deposited in the mail; or
b) If written notice of Board action on the claim is not given by the District
Within two years from the accrual of the cause of action
Administrative Cods - 117
Water Replenishment District of Southern California . October 21, 2011