Case Number: BS128136 Hearing Date: February 09, 2015 Dept: 34
Moving Party: Defendant/respondent Water Replenishment District of Southern California (“WRD” or “defendant”)

Resp. Party: Plaintiffs/petitioners City of Cerritos, City of Downey, and City of Signal Hill (“Cities” or “plaintiffs”)

Defendant’s motion is DENIED.

PRELIMINARY COMMENTS:

Given the voluminous nature of this motion, the Court greatly appreciates WRD’s lodging of a CD containing easily accessible copies of the moving papers.

BACKGROUND:

On 8/24/10, plaintiffs City of Cerritos, City of Downey, and City of Signal Hill filed a petition for writ of mandate and complaint against defendant Water Replenishment District of Southern California (“WRD”). Plaintiffs filed a first amended petition for writ of mandate and complaint (“FAC”) on 7/30/12. Plaintiffs allege four causes of action against defendant, denominated: (1) petition for writ of mandate re: unconstitutional RA; (2) declaratory relief re: unconstitutional RA; (3) complaint for damages re: unconstitutional RA; and (4) complaint for damages and other relief re: 42 U.S.C. § 1983 violations.

Plaintiffs bring the action “to prevent Respondent Water Replenishment District of Southern California . . . from continuing to illegally tax the Cities in violation of the California Constitution and [defendant’s] own enabling statutes, and to recover funds paid pursuant to [defendant’s] illegal tax.” (First Amended Pet., ¶ 1.) Plaintiffs believe defendant is disregarding Articles XIII C and D to the California Constitution by imposing excessive fees on plaintiffs. (Id., ¶ 3.)

On 4/25/11, the Court, the Hon. James C. Chalfant presiding, issued an order invalidating WRD’s RAs from the years of 2006 until 2010, on the grounds that they violated Article XIII D of the California Constitution. (See Order of April 25, 2011, LASC Case No. BS 128136.) This Order stated that WRD must comply with Article XIII D before adopting any new RA. (Ibid.)

On 9/25/12, the Court, the Hon. Ralph W. Dau presiding, heard defendant’s motion for summary adjudication of the third cause of action in plaintiffs’ complaint. The Court issued an order on 12/11/12, denying defendant’s motion.

On 7/25/13, Judge Dau sustained defendant’s demurrer to the fourth cause of action, without leave to amend.

On 10/16/13, Judge Dau denied plaintiffs’ motion for summary adjudication of the third cause of action.

In a related action between WRD and the Cities, WRD filed a motion for a preliminary injunction, which was denied. On October 30, 2013, the Court of Appeals reversed the denial of the injunction. (See WRD v. City of Cerritos (2013) 220 Cal.App.4th 1450.)

Plaintiffs filed a supplemental petition on 2/28/14. On 4/23/14, the parties stipulated to transfer the supplemental petition to Judge Chalfant. The supplemental petition is set for hearing on 3/10/15.

On 12/19/14, the Court, the Hon. Michael P. Linfield presiding, issued an order re burden of proof at trial, plaintiffs’ motions in limine, defendant’s motions in limine, certain legal issues, and trial management. The Court held that WRD had the burden of proof at trial under a preponderance of the evidence standard. The Court excluded evidence outside of the administrative record. The Court noted that Judge Chalfant has already determined: WRD has the burden of proving compliance with Proposition 218; the RA is a quasi-legislative enactment in which administrative record is required and extra-record is inadmissible; other well owners are not indispensable parties; the exhaustion of administrative remedies is not required; and what the Cities do with the water, once they have extracted it, has no bearing on the Cities’ obligation to pay the RA. The Court also noted that Judge Dau had determined that WRD properly enacted its claims presentation procedure and that the Cities had substantially complied with the procedure. The Court adopted these conclusions and ruled as to the following legal issues:

1) Defendant has properly enacted an ordinance that sets forth a claims presentation procedure.

2) Plaintiffs have substantially complied with the District’s claims presentation procedure as a prerequisite to the filing of any lawsuit against the District.

3) The correct refund period is the refund of payments made by the Cities from May 11, 2009 through payments for the 2010-2011 RA.

4) To the extent duress applies here, the Cities have paid the RAs under duress.

5) Well owners, other than Plaintiffs, are not indispensable parties in this case.

(Order 12/19/14, p. 7.) The Court ruled that the case may proceed to trial for WRD to establish by a preponderance of the evidence the amount, if any, which should have been paid had WRD complied with Prop. 218. (Ibid.)

ANALYSIS:

WRD moves to lodge or augment the administrative record for trial on the third cause of action.

The administrative record currently consists of documents bates stamped 1-3010 (plus nine audio discs). The WRD produced these documents in response to discovery propounded by plaintiffs in 2010. That discovery asked for, inter alia, all documents provided to the Board in connection with any hearing, meeting or workshop; all documents prepared by WRD relating to the calculation of the RA’s; and all documents relating to any analysis of the proportional cost of services.

The WRD now requests that it be allowed to augment the record to include an additional 19 volumes of exhibits – comprising some 7,000 additional pages of documents that were delivered to the Court in 3 banker’s boxes. Apparently some of these additional documents were presented to the Board when it adopted the RA’s. However, many of these documents are alleged to simply represent the collective wisdom of the staff – documents that the unspecified staff may have relied upon at some unspecified time to help them arrive at an unspecified recommendation.

Judicial review of the validity of a public entity’s quasi-legislative enactment is limited to evidence contained in the administrative record. (See Western States Petroleum Assoc. v. Superior Court (1995) 9 Cal.4th 559, 568-574.) The Court has already determined that the only evidence that will be considered is that contained in the administrative record. (See Order, 12/19/14, p. 5.) Plaintiffs are correct that this motion is an attempt to have the Court revisit its prior ruling. The Court declines to reconsider this determination because WRD has not submitted a timely or proper motion for reconsideration of this ruling. (See Code Civ. Proc., § 1008.)

Because the Court has already determined that the evidence is limited to the documents in the administrative record, WRD must show that other documents should be included as part of the record. “[T]he only evidence that is relevant to the question of whether there was substantial evidence to support a quasi-legislative administrative decision … is that which was before the agency at the time it made its decision.” (Id. at p. 574, fn. 4.) An administrative record may be supplemented to include evidence that was before the agency but was improperly excluded from the record. (See Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 335-336.) The administrative record may also include previous studies, reviews, and reports that the entity was required to make and that were available for consideration at the relevant time. (See City of Santa Cruz v. Local Agency Formation Com. (1978) 76 Cal.App.3d 381, 385, 391-392.)

Robb Whitaker, WRD’s General Manager, declares that the additional 231 exhibits attached to his declaration were relied on by WRD in preparing the RAs. (Whitaker Decl., ¶¶ 8-14.) Whitaker describes documents and information as to plaintiffs’ split assessment proposal and its discussion at meetings in 2007. (Id., ¶¶ 15-25.) This evidence does not establish that such information was presented or considered when the relevant RAs were enacted. (See Order, 12/19/14, p. 7 [the refund period is for payments from 5/11/09 through payments for the 2010/2011 RAs].) Whitaker only makes the conclusory assertion, without establishing personal knowledge of the facts, that unidentified “staff” relied on the documents and knowledge in recommending the RA’s. He also states that “many of these documents were actually presented to the Board.” (See id., ¶¶ 25, 28.) However, no evidence has been presented to show which of these documents “were actually presented to the Board.”

At each of the three Board meetings in question, Casso concludes by making an identical statement followed by seven requests which, without debate, are approved by the President of the Board. Casso states, inter alia, “Second, during the course of this hearing and its continuations, district staff has presented various materials. I am requesting that all of the materials and all the information and documents that the staff has relied upon in preparing those presentations be a part of the record of the public hearing and the Board’s consideration of this matter.” (See Wagner Decl., Exh. B, pp. 11, 13 and 15.) The president then says “all those documents are accepted as, a matter, as part of the record of the public hearing at this time. . .” (Id.) This Court has no problem with the board accepting, as part of the record, all of the documents presented by the staff during the course of the hearing. Such documents can be ascertained. However, it is not clear to the Court that Casso’s incantation of what appear to be generically magical words is sufficient for the entirety of the information that the staff has relied on – information that is both unspecified and unspecifiable – to become part of the record of the public hearing. This is not all that different than the Board accepting, as part of its record, the collective wisdom of humankind.

The WRD has not sufficiently established that the additional documents may properly be added to the administrative record.

Accordingly, defendant’s motion is DENIED.