Answer To Cross-Complaint Cgc-13-528312 04-10-13

2
4
5
6
7
8
9
10
11
CHARLES J. MCKEE, State BarNo. 152458

COUNTY COUNSEL
SUSAN K. BLITCH, State Bar No. 187761
Senior Deputy County Counsel
County of Monterey
168 W. Alisal Street, 3rd Floor
Salinas, California 93901
Phone: (831) 755-5045
Fax: (831) 755-5283
E-mail: mckeecj@co.monterey.ca.us
MARK A. WASSER, State BarNo. 060160
LAW OFFICES OF MARK A. WASSER
400 Capitol Mall, Suite 2640
Sacramento, California 95814
Phone: (916) 444-6400
Fax: (916) 444-6405
E-mail: mwasser@markwasser.com
Attorneys for Defendant and Cross-Defendant,
Monterey County Water Resources Agency
ELECTRONICALLY
FILED
Superior Court of California.
County of San Francisco
APR 10 2013
Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk
(Filing Fee Exempt: Gov. Code 6103)
12
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
IN AND FOR THE COUNTY OF SAN FRANCISCO
14
15
CALIFORNIA-AMERICAN WATER
COMPANY, a California corporation,
16
Plaintiff,
Case No.: CGC-13-528312

ANSWER TO CROSS-COMPLAINT
17
18
19
Dept.: 304
Judge: Honorable Curtis E.A. Kamow
vs.
MARINA COAST WATER DISTRICT,
MONTEREY COUNTY WATER
RESOURCES AGENCY; and DOES 1
through 10, inclusive,
Complaint Filed: October 4, 2012

Cross-Complaint Filed: November 19,2012
20
Defendants.
21
MARINA COAST WATER DISTRICT,
22
Cross-Complainant,
23
vs.
24
25
26
CALIFORNIA-AMERICAN WATER
COMPANY, a California corporation;
MONTEREY COUNTY WATER
RESOURCES AGENCY; and ROES I
through 50, inclusive,
27
Cross-Defendants.
28
~~o~A.~-----------------A-N_S_W_E_R--TO--C~~~~~~-S--C-O_M_P_L_A_IN_T_________________________
1
2
Cross-defendant Monterey Connty Water Resources Agency ("Agency") answers the crosscomplaint of cross-complainant Marina Coast Water District ("MCWD") as follows:
1.
The Agency admits the allegations in Paragraph 1.
2.
3.
4.
The Agency has no information or belief upon the subject sufficient to enable it to
answer the allegations in Paragraph 4 and denies all the allegations in that Paragraph on that gronnd.
5.
The Agency denies all the allegations in Paragraph 5.
6.
In answer to the allegations in Paragraph 6, the Agency admits only that the actions of
10
the State Water Resources Control Board are matters of public record and the record speaks for
11
itself. The Agency denies all remaining allegations in Paragraph 6.
7.
12
13
the State Water Resources Control Board and the California Public Utilities Commission are matters
14
of public record and the record speaks for itself. The Agency denies all remaining allegations in
15
Paragraph 7.
16
8.
17
the California Public Utilities Commission and the actions of the Agency, MCWD and the
18
California-American Water Company that preceded the actions of the California Public Utilities
19
Commission are matters of public record and the record speaks for itself. The Agency denies all
20
remaining allegations in Paragraph 8.
21
9.
In answer to the allegations in Paragraph 9, the Agency admits only that the Water
22
Purchase Agreement speaks for itself, that its interpretation is a question of law, that the actions of
23
the California Public Utilities Commission are matters of public record and that the record speaks for
24
itself. The Agency denies all remaining allegations in Paragraph 9.
25
10.
In answer to the allegations in Paragraph 10, the Agency admits only that Stephen P.
26
Collins provided paid services to RMC Water and Enviromnent and MCWD while he was a member
27
of the Agency's Board of Directors. The Agency denies all remaining allegations in Paragraph 10.
28
11.
-2-
Lew Offices of
~~~A.~-----------------A-N~S~W~E~R-T-O~C~RO~SS--C-O_M
__P-LA~f=N=T~----------------------
12.
13.
answer the allegations in Paragraph 13 and denies all the allegations in that Paragraph on that
ground.
14.
ground.
15.
In answer to the allegations in Paragraph 15, the Agency admits only that Stephen P.
Collins' statements and actions at the Agency meeting on September 27, 2010 are a matter of public
I0
record and the record speaks for itself. The Agency denies all remaining allegations in Paragraph
II
15.
12
16.
13
17.
In answer to the allegations in Paragraph 17, the Agency admits only that conflict of
14
interest allegations about Stephen P. Collins became public in early 20 II and Collins resigned from
15
the Agency's Board of Directors. The Agency denies all remaining allegations in Paragraph 17.
18.
16
17
18
ground.
19.
19
In answer to the allegations in Paragraph 19, the Agency admits all the regional
20
desalination project agreements are void but that MCWD disagrees. The Agency denies all
21
22
20.
The Agency incorporates its responses to Paragraphs I through 19, inclusive.
23
21.
24
25
26
22.
In answer to the allegations in Paragraph 22, the Agency admits only that
27
interpretation of the Agency Act and, more specifically, Water Code Appendix section 52-39, is a
28
question oflaw. The Agency denies all remaining allegations in Paragraph 22.
-3-
Low OWce. of
~~~A.~-----------------A~N~s=w=E=.R~T~O~C~RO~SS~-C~O~M~P~LA~J=N=T~----------------------
23.
interpretation of Code of Civil Procedure section 863 is a question of law. The Agency denies all
24.
25.
The Agency incorporates its responses to Paragraphs I through 24, inclusive.
26.
desalination project agreements are void, that MCWD disagrees and that interpretation of Water
10
Code section 30066 is a question oflaw. The Agency denies all remaining allegations in Paragraph
11
26.
12
27.
13
14
15
28.
16
17
18
29.
The Agency incorporates its responses to Paragraphs 1 through 28, inclusive.
19
30.
20
desalination project agreements are void, that MCWD disagrees and that interpretation of
21
Government Code section 53511 is a question oflaw. The Agency denies all remaining allegations
22
in Paragraph 30.
23
31.
24
25
26
32.
27
28
Law Ollicet ol
-4~~~A.~-----------------A-N~S~W-E_R_T_O
__C~R~O~SS---CO
__
M_P-LA-I~N~T------------------------
33.
34.
desalination project agreements are void, that MCWD disagrees and that interpretation of Public
Utilities Code section 1731 is a question of law. The Agency denies all remaining allegations in
Paragraph 34.
35.
36.
10
37.
In answer to the allegations in Paragraph 3 7, the Agency admits all the regional
11
12
Utilities Code section 1756 is a question oflaw. The Agency denies all remaining allegations in
13
Paragraph 37.
14
38.
15
16
17
39.
18
40.
19
20
21
Paragraph 40.
41.
22
23
24
25
42.
26
43.
27
28
-5-
Low Ollice. ol
~~~A.~-----------------A-N_S_W_E_R_T_O
__
C~RO~SS--C-O_M
__
P-LA_I_N_T------------------------
Paragraph 43.
44.
5
6
AS AND FOR A FIRST AFFIRMATIVE DEFENSE the Agency alleges the cross-complaint
and each and every alleged cause of action therein fails to state of cause of action.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE the Agency alleges the regional
desalination project agreements and each of them are void as a result of the violation of Govermnent
Code section 1090 caused by the conduct of Stephen P. Collins, RMC Water and Enviromnent and
10
MCWD.
11
AS AND FOR A THIRD AFFIRMATIVE DEFENSE the Agency alleges MCWD is not
12
entitled to equitable or any relief as a result of its participation in the conduct that created a conflict
13
of interest and violated Govermnent Code section 1090 and that its conduct constitutes unclean
14
hands, as that defense is applied to claims for equitable relief.
15
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE the Agency alleges MCWD
16
contributed to the matters alleged in the cross-complaint and to its injuries and damages, if any, as
17
alleged therein and that, by reason its contribution, MCWD is barred from any relief in this action.
18
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE the Agency alleges section 52-39 of
19
the Water Code Appendix has no application to the regional desalination project agreements which
20
were rendered void as a result of the violation of Government Code section 1090 and nothing in the
21
Agency Act or the authorities that interpret it prevents the violation of section 1090 from rendering
22
those contracts void.
23
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE the Agency alleges Code of Civil
24
Procedure section 863 has no application to the regional desalination project agreements which were
25
rendered void as a result of the violation of Govermnent Code section 1090 and nothing in section
26
863 or the authorities that interpret it prevents the violation of section 1090 from rendering those
27
contracts void.
28
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE the Agency alleges Water Code
-6-
I. ow Oilice< o!
~~~A.~-----------------A-N_S_W_E_R_T_O
__
C~RO~SS--C-0-M--PL_A_I_N_T________________________
section 30066 has no application to the regional desalination project agreements which were
rendered void as a result of the violation of Government Code section 1090 and nothing in section
contracts void.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE the Agency alleges Government
Code section 53511 has no application to the regional desalination project agreements which were
contracts void.
I0
AS AND FOR A NINTH AFFIRMATIVE DEFENSE the Agency alleges Public Utilities
11
12
13
14
contracts void.
15
AS AND FOR A TENTH AFFIRMATIVE DEFENSE the Agency alleges Public Utilities
16
17
rendered void as a result of the violation of Government Code section I 090 and nothing in section
18
19
contracts void.
20
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE the Agency alleges Public
21
Utilities Code section 1709 has no application to the regional desalination project agreements which
22
were rendered void as a result of the violation of Government Code section 1090 and nothing in
23
section 1709 or the authorities that interpret it prevents the violation of section 1090 from rendering
24
25
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE the Agency alleges Public
26
Utilities Code section 1759 has no application to the regional desalination project agreements which
27
were rendered void as a result of the violation of Government Code section 1090 and nothing in
28
section 30066 or the authorities that interpret it prevents the violation of section 1090 from rendering
L::lW Offices t>l

-7 _
~~~A.~-----------------A~N~S~W~E=R~T=o~C~R7
o7
ss~-C~O~M~P~LA~I~N=T~----------------------

AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE the Agency alleges
2
3
Government Code section I 092 is the statute oflimitations that applies to violations of Govermnent
Code section 1090 and the alleged causes of action in the cross-complaint are based on statutes and
authorities that do not apply to violations of Govermnent Code section 1090.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE the Agency alleges public
policy strongly disfavors conduct that violates Govermnent Code section I 090 and that statutes of
limitation establishing shorter time limits for other disputes or contractual challenges in other
contexts do not apply to violations of Government Code section I 090.
10
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE the Agency alleges application
11
of shorter statutes of limitation, such as those advocated by MCWD in its cross-compliant, to
12
violations of Govermnent Code section I 090 would effectively insulate egregious conflicts of
13
interest of the type that resulted from the conduct of Stephen P. Collins, RMC Water and
14
Environment and MCWD from judicial review and injure the public.
15
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE the Agency alleges MCWD's
16
delay of over two years in asserting that the regional desalination projects agreements remain valid
17
despite the conduct of Stephen P. Collins, RMC Water and Environment and MCWD and the
18
resulting violation of Govermnent Code section I 090 was unreasonable and without substantial
19 justification and constitutes laches, as that defense is applied to claims for equitable relief.
20
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE the Agency alleges that
21
MCWD has known about the conduct of Stephen P. Collins, RMC Water and Environment and
22
MCWD and the resulting conflict of interest for over two years, that MCWD has agreed the conduct
23
constituted a violation of Government Code section I 090, that MCWD has known the Agency
24
believes the violation of section 1090 rendered the regional desalination agreements void, and that
25
MCWD has known California-American Water Company considers the agreements to have been
26
repudiated and terminated. It was, and is, unreasonable for MCWD to have waited until now to
27
assert that the agreements are still valid and, as a consequence, MCWD is barred and estopped from
28
making that assertion.
Lew Ollice$ ol
-8~~~A.~-----------------A-N_S_W_E_R_T_O
__
C~R~O~SS--C-O_M
__
P-LA_J_N_T------------------------
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE the Agency alleges MCWD
knew or had reason to know all the matters alleged in its cross-complaint over two years ago and
MCWD's failure to timely file an action to validate, ratify or affirm the regional desalination project
agreements under any of the statutes or authorities MCWD relies on or references in its cross-
complaint bars MCWD from asserting those statutes and authorities now.
WHEREFORE, the Agency prays that MCWD take nothing by way of its cross-complaint
6
7
and that judgment thereon be entered in favor of the Agency and against MCWD and that the
Agency be awarded its reasonable attorney fees and costs together with such other relief as the Court
deems just.
10
11
Dated: April! 0, 2013
LAW OFFICES OF MARK A. WASSER
12
13
By: _
14
___jll~A~~~dJ~.
~~~=-
MARK A. WASSER
Attorneys for Defendant and Cross-Defendant,

Monterey County Water Resources Agency
15
16
17
NO VERIFICATION REQUIRED
18
Code of Civil Procedure 446
19
20
21
22
23
24
25
26
27
28
law Offices ol
-9~~~A.~-----------------A~N~=W~E=R~T~O~C~R~O~SS~-C~O~M~P~LA~J=N=T~----------------------
PROOF OF SERVICE
2
3
4
5
6
I, Amy Remly, declare:

I am a citizen of the United States, employed in the City and County of Sacramento,
California. My business address is 400 Capitol Mall, Suite 2640, Sacramento, California 95814.
I am over the age of 18 years and not a party to the within action. I am familiar with the practice
of Law Offices of Mark A. Wasser for collection and processing of correspondence, said practice
being that in the ordinary course of business, correspondence is sealed, given the appropriate
postage and placed in a designated mail collection area. Each day's mail is collected and
deposited in the United States Postal Service.
On AprillO, 2013 I served the attached:

ANSWER TO CROSS-COMPLAINT
8
9
[X]
BY U.S. MAIL: I placed such sealed envelope, with postage thereon fully prepaid for
first-class mail, for collection and mailing at Law Offices of Mark A. Wasser,
Sacramento, California, following ordinary business practices addressed as listed below;
and/or
10
11
12
13
BY PERSONAL SERVICE: I caused each such envelope to be delivered by hand to the

address listed below; and/or
VIA FEDERAL EXPRESS: I caused each such envelope to be delivered via Federal
Express overnight service to the address listed below; and/or
VIA FACSIMILE: I caused each such document to be sent by facsimile machine number
(916) 444-6405 to the following persons or their representative at the address and the
facsimile number listed below by Amy Remly; and/or
14
15
16
17
18
[X]
VIA EMAIL: I caused each such document to be sent by electronic mail to the email
address listed below:
SEE ATTACHED SERVICE LIST
19
20
I declare under penalty of perjury that the foregoing is true and correct. Executed at
Sacramento, California, on April I 0, 2013.
21
22
23
24
25
26
27
28
-IPROOF OF SERVICE
SERVICE LIST
2
3
4
5
6
7
8
9
10
11
12
Robert R. Moore
Allen Matkins Leek Gamble Mallory & Natsis LLP
Three Embarcadero Center, 12'h Floor
San Francisco, California 94111
Email: rmoore@allenmatkins.com
Attorneys for California-American Water

Company
James L. Markman
B. Tilden Kim
Richards, Watson & Gershon
355 South Grand Avenue, 401h Floor
Los Angeles, California 90071
Email: jmarkman@rwglaw.com
tkim@rwglaw .com
Attorneys for Marina Coast Water District
Mark Fogelman
Ruth Stoner Muzzin Friedman Springwater LLP
33 New Montgomery Street, Suite 290
San Francisco, California 94105
Email: mfogelman@friedmanspring.com
Attorneys for Marina Coast Water District
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2PROOF OF SERVICE

Answer To Cross-Complaint Cgc-13-528312 04-10-13

Enviado por

Dados do documento

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Answer To Cross-Complaint Cgc-13-528312 04-10-13

Enviado por

Direitos autorais:

Formatos disponíveis

2

CHARLES J. MCKEE, State BarNo. 152458

(Filing Fee Exempt: Gov. Code 6103)

Case No.: CGC-13-528312

Complaint Filed: October 4, 2012

The Agency admits the allegations in Paragraph 1.

The Agency admits the allegations in Paragraph 2.

The Agency admits the allegations in Paragraph 3.

The Agency denies all the allegations in Paragraph 5.

itself. The Agency denies all remaining allegations in Paragraph 6.

remaining allegations in Paragraph 8.

itself. The Agency denies all remaining allegations in Paragraph 9.

The Agency denies all the allegations in Paragraph 11.

The Agency denies all the allegations in Paragraph 12.

The Agency denies all the allegations in Paragraph 16.

remaining allegations in Paragraph 19.

The Agency incorporates its responses to Paragraphs I through 19, inclusive.

remaining allegations in Paragraph 21.

remaining allegations in Paragraph 23.

remaining allegations in Paragraph 24.

The Agency incorporates its responses to Paragraphs I through 24, inclusive.

remaining allegations in Paragraph 27.

remaining allegations in Paragraph 28.

The Agency incorporates its responses to Paragraphs 1 through 28, inclusive.

remaining allegations in Paragraph 31.

remaining allegations in Paragraph 32.

The Agency incorporates its responses to Paragraphs 1 through 32, inclusive.

remaining allegations in Paragraph 35.

The Agency incorporates its responses to Paragraphs 1 through 35, inclusive.

remaining allegations in Paragraph 38.

The Agency incorporates its responses to Paragraphs 1 through 38, inclusive.

remaining allegations in Paragraph 41.

The Agency incorporates its responses to Paragraphs 1 through 41, inclusive.

remaining allegations in Paragraph 44.

hands, as that defense is applied to claims for equitable relief.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE the Agency alleges MCWD

those contracts void.

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE the Agency alleges Government

AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE the Agency alleges Public

those contracts void.

AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE the Agency alleges Public

L::lW Offices t>l

those contracts void.

authorities that do not apply to violations of Govermnent Code section 1090.

AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE the Agency alleges public

contexts do not apply to violations of Government Code section I 090.

AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE the Agency alleges application

of shorter statutes of limitation, such as those advocated by MCWD in its cross-compliant, to

AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE the Agency alleges MCWD's

AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE the Agency alleges that

making that assertion.

AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE the Agency alleges MCWD

Dated: April! 0, 2013

LAW OFFICES OF MARK A. WASSER

Attorneys for Defendant and Cross-Defendant,

Code of Civil Procedure 446

I, Amy Remly, declare:

On AprillO, 2013 I served the attached:

BY PERSONAL SERVICE: I caused each such envelope to be delivered by hand to the

Attorneys for California-American Water

Attorneys for Marina Coast Water District

Attorneys for Marina Coast Water District

Você também pode gostar