Mcwd's Answer To Mcwra's Cross-Complaint Cgc-13-528312 05-16-14
Mcwd's Answer To Mcwra's Cross-Complaint Cgc-13-528312 05-16-14
Mcwd's Answer To Mcwra's Cross-Complaint Cgc-13-528312 05-16-14
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ELECTRONICALLY
FILED
MAY 16 2014
Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk
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7 MARK FOGELMAN (Bar No. 50510)
RUTH STONER MUZZIN (Bar No. 276394)
8 FRIEDMAN & SPRINGWATERLLP
33 New Montgomery Street, Suite 290
9 San Francisco, California 94105
Telephone: 415.834.3800
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Attorneys for Defendant and Cross-Complainant
11 MARINA COAST WATER DISTRICT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
14 CALIFORNIA-AMERICAN WATER
COMPANY, a California corporation,
Plaintift~
v.
Vacated
1.
2.
3.
4.
9 contained in paragraph 4 of the Cross-Complaint, and based thereon, denies each and every
I 0 allegation contained therein.
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13 RMC Water and Environment was an additional party to the Project Management
14 Agreement and (2) the Monterey Regional Water Pollution Control Agency, the Public
15 Trust Alliance, Surfrider Foundation and Citizens for Public Water were additional parties
16 to the Settlement Agreement.
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7.
Marina admits the first and second sentences of paragraph 7 of the Cross-
18 Complaint. Marina denies the third sentence but admits that the Reimbursement
19 Agreement was executed by Marina on February 25, 20 I 0; and that Cal-Am and Monterey
20 executed that agreement on February 26, 2010. Marina denies the fourth sentence of
21 paragraph 7 but admits that the Settlement Agreement and the Water Purchase Agreement
22 were dated April 6, 20 I 0; and that the Settlement Agreement, the Water Purchase
23 Agreement, the Credit Line Agreement and the Project Management Agreement were
24 effective January II, 2011. Marina admits the fifth and sixth sentence of paragraph 7 of the
25 Cross-Complaint.
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8.
27 Agreement, the Water Purchase Agreement, the Credit Line Agreement and the Project
28 Management Agreement; and Marina denies paragraph 8 as to the Reimbursement
-2MARINA'S ANSWER TO MONTEREY'S CROSS-COMPLAINT
ll221-0005\l713236vl.doc
1 Agreement.
2
9.
3 Complaint, but admits that "Stephen P. Collins, [) was a long-serving member of the
4 Agency's appointed board of directors."
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6 January 8, 2010 through December 2, 2010, with the knowledge and approval of Monterey
7 and Cal-Am, Collins was "retained as a consultant by RMC and paid to advocate approval
8 of the regional desalination project and the RDP Agreements while serving as a member of
9 the Agency's appointed board of directors."
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11.
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12.
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Except to the extent that Monterey's statement "the RDP Agreements were
14.
16 terminated the RDP Agreements, and Cal-Am's representation that it purported to terminate
17 the RDP Agreements based on Monterey's repudiation of those agreements beginning on
18 July 7, 2011, Marina admits that the CPUC declined to force Cal-Am to implement the
19 RDP and that Cal-Am is pursuing an alternative water supply project.
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15.
With the exception of "several months" and "failed" in the first sentence of
16.
2 Marina contends that Cal-Am, notwithstanding its allegations made in its complaint, has at
3 all materials times, been aligned with Monterey in positing that the RDP Agreements were
4 void, and based thereon, denies all other material allegations contained in paragraph 16 of
5 the Cross-Complaint.
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17.
18.
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II
20.
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21.
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22.
14 the RDP Agreements have been validated by section 52-39 of the Agency Act and that CalIS Am is, thereby, barred from challenging the RDP Agreements. There is no "actual
16 controversy" between Monterey and Cal-Am, and thus, Marina denies the allegation that
17 "[a]n actual controversy has arisen and presently exists between the parties," insofar as CalIS Am is a "party" to the Cross-Complaint. Marina admits all other material allegations of
19 paragraph 22 of the Cross-Complaint.
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23.
21 the RDP Agreements have been validated by section 52-39 of the Agency Act and that Cal22 Am is, thereby, barred from challenging the RDP Agreements. There is no "actual
23 controversy" between Monterey and Cal-Am, and thus, Marina denies the allegation in
24 paragraph 23 of the Cross-Complaint that as to Cal-Am, a declaration of the RDP
25 Agreements' validity or invalidity is subject to Monterey's request for declaratory relief.
26 Marina admits all other material allegations of paragraph 23 of the Cross-Complaint.
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24.
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25.
1 the RDP Agreements have been validated by section 52-39 of the Agency Act and that Cal2 Am is, thereby, barred from challenging the RDP Agreements. There is no "actual
3 controversy" between Monterey and Cal-Am, and thus, Marina denies the allegation in
4 paragraph 25 of the Cross-Complaint that there is a "controversy" as to Cal-Am. Marina
5 admits all other material allegations of paragraph 23 of the Cross-Complaint.
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26.
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1.
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(Statute of Limitations)
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2.
The Cross-Complaint, and each and every cause of action contained therein,
18 is barred by reason ofPlaintiffs' failure to comply with the applicable periods of limitation
19 set forth in Government Code section 1092(b ), Code of Civil Procedure sections 342 and
20 860, 863 et seq., Government Code sections 911.2 and 53511 et seq., the Monterey County
21 Water Resources Agency Act, Cal. Water Code App., Chapter 52, section 52-39, the
22 County Water District Act, Cal. Water Code section 30066, Public Utilities Code sections
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1731, subdivision (b), 1756, subdivision (t), and 1759, subdivision (a), and other applicable
24 statutes.
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3.
28 indispensable parties.
-5MARINA'S ANSWER TO MONTEREY'S CROSS-COMPLAINT
J 122J-0005\1713236v I .doc
(Laches)
4.
4 Laches.
(Unclean Hands)
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6.
The RDP Agreements were not subject to a Government Code Section 1090
II violation because Stephen D. Collins did not have a "cognizable financial interest" when
12 Monterey approved one or more of the RDP Agreements.
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(Waiver)
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7.
16 Waiver.
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(Estoppel)
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8.
20 Estoppel.
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9.
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I 0.
The RDP Agreements were not subject to any Government Code Section
28 I 090 violation because Stephen D. Collins was not involved in the "making" of one or
-6MARINA'S ANSWER TO MONTEREY'S CROSS-COMPLAINT
11221-0005\! 713236vl .doc
more ofthe RDP Agreements within the meaning of Government Code Section 1090.
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11 various procedural requirements under the Validating Act, ineluding but not limited to
12 failure to bring an in-rem proeeeding (CCP 860.); failure to publish the summons,
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13 "direeted to 'all persons interested in the matter," in both a newspaper of general circulation
14 in the county where the aetion is pending and also within the boundaries of the public
""' 15 ageney (i.e., Monterey County (CCP 861, 861.1); failure to notify by publication once a
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16 week for three consecutive weeks, with at least five days intervening between respective
17 publication dates; and failure to complete service within twenty-one days after the first day
18 of publication. (Gov. Code 6063.).
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21 follows:
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1.
That Monterey takes nothing by its Cross-Complaint and is not entitled to any
2.
26 its costs of suit herein, including attorney's fees to the extent allowed by law.
27 Ill
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3.
For such other relief as the Court may deem just and proper in the
2 circumstances.
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By: /s/ James L. Markman
JAMES L. MARKMAN
Attorneys for Defendant and CrossComplainant
MARINA COAST WATER DISTRICT
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VERIFICATION IS REQUIRED
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PROOF OF SERVICE
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I am a resident of the state of California and over the age of eighteen years and not a party
to the within action. My business address is 355 South Grand Avenue, 40th Floor, Los Angeles,
5 California 90071-3101. On May 16,2014, I served the within document(s) described as:
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was served electronically via LexisNexis File & Serve on the recipients designated on the
23 Transaction Receipt located on the LexisNexis File & serve website.
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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on May 16,2014, at Los Angeles, California.
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Linda I. Pomatto
(Type or print name)
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-1ll221-0005\l546486vl.doc