Las Posas Valley Water Rights Coalition, et al. v. Fox Canyon Groundwater Management Agency, et al.
Case No: VENCI00509700
Hearing Date: Tue Mar 26, 2019 9:30

Nature of Proceedings: Motion Relief

Motion of Plaintiff for Relief from CCP § 836(d) Mailing Requirement

ATTORNEYS:

For Plaintiffs Las Posas Valley Water Rights Coalition, Placco, Inc., Grimes Rock, Inc., Saticoy Properties, LLC, SCS Partners, Green Hills Ranch, LLC, Rolling Green Hills Ranch, LLC: Peter A. Goldenring, Goldenring & Prosser; David R.E. Aladjem, Meghan M. Baker, Samuel Bivins, Downey Brand LLP

For Defendants Ventura County Waterworks District No. 1, Ventura County Waterworks, District No. 19, and Ventura County: Michael J. Van Zandt, Nathan A. Metcalf, Sean G. Herman, Hanson Bridgett LLP

(For other appearances see list)

RULING: For the reasons set forth herein, plaintiffs’ motion to be relieved of its service obligation under Code of Civil Procedure section 836 is denied.

Background:

This is an action for, among other things, comprehensive groundwater adjudication under Code of Civil Procedure section 830 et seq. of the Las Posas Valley Groundwater Basin (Basin).

Plaintiffs Las Posas Valley Water Rights Coalition, Placco, Inc., Grimes Rock, Inc., Saticoy Properties, LLC, SCS Partners, Green Hills Ranch, LLC, Rolling Green Hills Ranch, LLC, filed their original complaint in this action on March 27, 2018.

Plaintiffs’ first amended complaint was filed on July 5, 2018. Plaintiffs’ second amended complaint (SAC) was filed on October 29, 2018.

On November 1, 2018, the Court entered its written order approving the notice and form answer and authorizing service on landowners as provided by Code of Civil Procedure section 836.

On February 13, 2019, plaintiffs filed this motion for relief from the mailing requirements of section 836 as to a subset of landowners.

The motion is opposed by defendant Ventura County Waterworks District No. 1 (VCWD1) as discussed below. No other party has filed a response to plaintiffs’ motion.

Analysis:

Code of Civil Procedure section 836 provides that when a plaintiff files its complaint in a comprehensive groundwater adjudication, the plaintiff must lodge a draft “Notice of Commencement of Groundwater Basin Adjudication” and a draft form answer. (Code Civ. Proc., § 836, subd. (a)(1), (2).) Once the notice is approved by the court, service of the notice in accordance with section 836 substitutes for service of summons. (Id., § 836, subd. (c).)

“Following a court order approving the notice and form answer and authorizing service of landowners pursuant to this section, the plaintiff shall do all of the following:

“(A) Identify the assessor parcel numbers and physical addresses of all real property in the basin and the names and addresses of all holders of fee title to real property in the basin using the records of the assessor or assessors of the county or counties in which the basin to be adjudicated lies. The plaintiff shall provide the court and all parties with notice of its acquisition of, or sufficient access to, this information.

“(B) Mail, by registered mail or certified mail, return receipt requested, the notice, complaint, and form answer to all holders of fee title to real property in the basin. If the physical address of the real property differs from the address of the holder of fee title, the notice, complaint, and form answer shall be mailed by registered or certified mail, return receipt requested, to the physical address of the real property and the address of the holder of fee title.

“(C) If return receipt is not received for a parcel of real property, the plaintiff shall post a copy of the notice, complaint, and form answer in a conspicuous place on the real property.

“(D) Within 20 days of the court order, publish the notice at least once per week for four consecutive weeks in one or more newspapers of general circulation in each county overlying the basin in whole or in part.” (Code Civ. Proc., § 836, subd. (d)(1).)

“Service pursuant to this subdivision is not required if the real property is owned by a person in a class of water users that are otherwise noticed in accordance with this chapter. If the owner is part of a class of water users proposed for certification, service is not required until the court acts on the proposal for certification.” (Code Civ. Proc., § 836, subd. (d)(2).)

“Following a court order authorizing service of landowners pursuant to this section, the plaintiff shall serve any known person that pumps groundwater who would not otherwise be served pursuant to subdivision (d) of this section, except those who have been exempted by the court pursuant to subdivision (d) of Section 833 or those who are part of a class certified pursuant to paragraph (2) of subdivision (d) of this section. Service pursuant to this subdivision shall be by personal delivery or by mail in the manner prescribed by Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5.” (Code Civ. Proc., § 836, subd. (g).)

The court may authorize any other procedures it finds appropriate and necessary to provide notice to persons who may hold groundwater rights in the basin.” (Code Civ. Proc., § 836, subd. (i).)

“Compliance with the service and notice provisions of this chapter shall be deemed effective service of process of the complaint and notice on all interested parties of the comprehensive adjudication for purposes of establishing in rem jurisdiction and the comprehensive effect of the comprehensive adjudication.” (Code Civ. Proc., § 836, subd. (j).)

Plaintiffs argue that compliance with the certified mail procedure of section 836, subdivision (d)(1)(B) is unreasonably onerous. Pursuant to County records, there are 15,062 discrete parcels of real property in the Basin, of which there are 2,866 with a mailing address different from situs address of the respective parcel. (Aladjem decl., ¶ 5.) Compliance with subdivision (d)(1)(B) would therefore require mailings to 17,928 discrete addresses. (Ibid.) The lowest of three cost estimates from firms for such a mailing, for postage alone, would be approximately $120,000. (Aladjem decl., ¶ 7.) Of the 17,928 discrete addresses, approximately two-thirds, 11,923, are associated with parcels of land with Moorpark situs addresses which are entitled to receive municipal water service from VCWD1. (Aladjem decl., ¶ 6.) By this motion, plaintiffs seek to be relieved of the obligation to mail the notice, form answer, and SAC to each of the Moorpark addresses and instead to mail an abbreviated notice to be included in VCWD1 water bills.

VCWD1 opposes this motion. VCWD1 argues that the provisions of section 836 are mandatory, that the Court does not have discretion to waive the requirements of subdivision (d)(1), that waiver would violate due process requirements, that plaintiffs have not met their burden to show why other procedures are appropriate and necessary, and that the cost to VCWD1 to include the abbreviated notice would be approximately $10,000.

In opposition, VCWD1 requests that the Court take judicial notice of: (Opposition Request for Judicial Notice, exhibit A) the September 9, 2015, Assembly Floor Analysis for Assembly Bill 1390, as amended September 4, 2015. In reply, plaintiffs request that the Court take judicial notice of: (Reply Request for Judicial Notice [Reply RJN], exhibit A) the July 14, 2015, Senate Judiciary Committee Bill Analysis for Assembly Bill 1390, as amended July 6, 2015; and (Reply RJN, exhibit B) the description of the San Joaquin Valley Groundwater Basin Kern County Subbasin contained in the California Department of Water Resources Bulletin 118, dated January 20, 2006. The Court will grant all requests for judicial notice. (See Evid. Code, § 452, subd. (c).)

Plaintiffs assert that the Court has discretion to excuse compliance with section 836, subdivision (i), which provides that the Court may authorize other procedures to provide notice to persons who may hold groundwater rights in the Basin. VCWD1 argues that subdivision (i) authorizes procedures in addition to, but not in place of, the mailing required by subdivision (d)(1)(B). Both parties cite to the legislative history of section 836, which was enacted as Assembly Bill 1390 in 2015 (Stats. 2015, ch. 672, § 1), in support of their respective positions.

The legislative history of section 836 is at best ambiguous as to the meaning of the mailing requirement and the potential exception of subdivision (i). VCWD1 points to the legislative purpose of section 836 as including “detailed procedures to ensure that a comprehensive adjudication is truly comprehensive, with adequate notice and due process protections for all groundwater extractors and overlying landowners.” (Assem. Floor Analysis of Assem. Bill No. 1390 (2015-2016 Reg. Sess.) Sept. 9, 2015, p. 5.) Plaintiffs point to the legislative purpose set forth in the statute itself: “This chapter shall be applied and interpreted consistently with all of the following: [¶] … [¶] (2)

Conducting a comprehensive adjudication in a manner that promotes efficiency, reduces unnecessary delays, and provides due process.” (Code Civ. Proc., § 830, subd. (b)(2).)

An interesting aspect of the legislative history of section 836 is that the text of Assembly Bill 1390 up through its version as of July 6, 2015, provided for notice of the comprehensive adjudication to be sent with the annual property tax bill to each landowner in the basin. (Sen. Amend. to Assem. Bill No. 1390 (2015-2016 Reg. Sess.) July 6, 2015, § 1 [proposed § 833, subd. (d)].) The Senate Judiciary Committee report on this version of the bill, cited by plaintiffs, discussed the impact of these provisions “to streamline the process of notifying affected parties of a groundwater adjudication” and questioned whether the tax bill procedure was “sufficient to meet constitutional due process requirements.” (Sen. Com. on Judiciary, com. on Assem. Bill No. 1390 (2015-2016 Reg. Sess.) as amended July 6, 2015, p. 9.)

The Senate Judiciary Committee report concluded: “Given the significant due process problems that could arise by serving notice of a groundwater adjudication through a property owner’s annual tax bill, the Committee may wish to explore other alternatives to streamlining the process for serving notice. Potential amendments to this part of the bill would include, instead of providing notice through annual tax bills, authorizing a waiver of personal service through a mechanism analogous to Rule 4 of the Federal Rules of Civil Procedure, or creating a notice procedure that incorporates the process established for statutory stream adjudications in Water Code Section 2527.” (Sen. Com. on Judiciary, com. on Assem. Bill No. 1390 (2015-2016 Reg. Sess.) as amended July 6, 2015, p. 10.) The report suggested striking the provisions related to service of landowners through annual property tax bills and authorizing service “by a combination of methods, including by certified mail, that together are reasonably calculated to provide actual notice of an adjudication.” (Ibid.)

The request in this motion by plaintiffs is to use a method of service not by certified mail as expressly authorized by section 836, subdivision (d)(1)(B), but by an alternative of including an abbreviated notice of this action in water bills sent to affected landowners. This proposed method is similar to, but different from, the method that was rejected by the Legislature which was to provide service by including a more formal notice than sought here in annual tax bills. While the legislative history does not imply that service by inclusion of notice in a bill (tax or water) does not necessarily comply with due process requirements, the rejection of the tax bill method of service as a specifically authorized method of service does imply a legislative policy that an alternative method, to the extent authorized by section 836, subdivision (i), should be employed only to the extent that it is “appropriate and necessary.”

It is important to note that the statutorily approved method of service in section 836 by certified or registered mail is consistent with service of process on a defendant outside California. (See Code Civ. Proc., § 415.40.) This method of service is to be contrasted with the ordinary methods for service of process in California which require an initial effort to serve a landowner personally. (See Code Civ. Proc., §§ 413.10, 415.10, 415.20, subd. (b), 416.90.) Personal service on thousands of defendants is enormously expensive and time consuming. Service by certified mail is a substantial improvement over personal service in both money and time. However, as pointed out by plaintiffs, service by certified mail on thousands of landowners is still expensive.

It is not necessary for the Court to determine here whether the proposed method of service by a notice included in a water bill meets the statutory and constitutional requirements for service of process. The Court assumes, without deciding, that the Court has discretion under section 836, subdivision (i), to excuse compliance with the subdivision (d)(1)(A) certified mailing requirement and to make “other,” i.e., alternative, service requirements consistent with constitutional requirements of due process. The Court declines to exercise that discretion here.

The statutory standard for exercising such discretion is that the Court must find that that the other procedures to be followed are “appropriate and necessary.” Under the totality of the circumstances here, the Court does not find that plaintiffs have shown that the requested alternative service is appropriate and necessary. The evidence presented in support of the motion shows only that service in compliance with section 836, subdivision (d)(1)(A), is expensive (more than $120,000). In enacting section 836, the Legislature would have been aware that comprehensive service by certified mail on all landowners in a basin would be expensive (albeit considerably cheaper than personal service on the same landowners) but the Legislature did not provide a statutory alternative or exception on that basis alone. As plaintiffs point out in reply, compliance with the certified mailing procedure in some basins may be enormously expensive. It may be that high expense and other factors together rise to the level of “appropriate and necessary” for other notice procedures to be appropriate and necessary. However, here the only showing is the approximate cost of service. In its experience in complex litigation, the Court is aware that litigation expenses in the range of the cost of this service are not uncommon (whether such expenses are for expert witnesses or other types of litigation expenses). The mere showing of this expense is insufficient for the Court to find that alternative procedures for service are appropriate or necessary to replace the express statutorily authorized notice procedure by certified mail.

Accordingly, plaintiffs’ motion to be relieved of its service obligation under section 836 will be denied.