MONTEREY COUNTY WATER RESOURCES AGENCY, A LOCAL VS. MARINA COAST WATER DISTRICT et al 001C04417494 Instructions: Please place this sheet on top of the document to be scanned. c SUMMONS (CITACION JUDICIAL) NOTICE TO DEFENDANT: 0 SUM-100 FOR COURT USE ONLY (SOLO PARA USO DE LA CORTE} C? .. (AVISO AL DEMANDADO):
se
Marina Coast Water District; California-American Water Company, a California Corporation; and DOES 1 through 10, inclusive, YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): Monterey County Water Resources Agency, a local public agency,
NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. X You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts '" Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask 'U the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property LL may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center > (www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. Lo han demandado. Sino responde dentro de 30 dias, Ia corte puede decidir en su contra sin escuchar su version. Lea Ia informacion a continuaci6n. ,..,.,., Tiene 30 DfAS DE CALENDAR/0 despues de que le entreguen esta citacion y papeles legales para presentar una respuesta por escrito en esta L.U corte y hacer que se entregue una copia a/ demandante. Una carta o una 1/amada telefonica no lo protegen. Su respuesta por escrito tiene que estar en formato legal correcto si desea que procesen su caso en Ia corte. Es posible que haya un formulario que usted pueda usar para su respuesta. Puede encontrar estos formularios de Ia corte y mas informacion en el Centro de Ayuda de las Cortes de California (Www.sucorte.ca.gov), en Ia biblioteca de /eyes de su condado o en Ia corte que le quede mas cerca. Sino puede pagar Ia cuota de presentacion, pida al secretario de Ia corte que le de un formulario de exenci6n de pago de cuotas. Sino presenta su respuesta a tiempo, puede perder el caso por incumplimiento y Ia corte le podra quitar su sue/do, dinero y bienes sin mas advertencia. Hay otros requisitos legales. Es recomendable que flame a un abogado inmediatamente. Sino conoce a un abogado, puede /lamar a un servicio de remisi6n a abogados. Sino puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legales gratuitos de un program a de servicios legales sin fines de Iuera. Puede encontrar estos grupos sin fines de Iuera en el sitio web de California Legal Services, (www.lawhelpcalifornia.org), en el Centro de Ayuda de las Cortes de California, (Www.sucorte.ca.gov) o poniendose en contacto con Ia corte o el co/egio de abogados locales. AVISO: Por ley, Ia corte tiene derecho a reclamar las cuotas y los costas exentos por imponer un gravamen sabre cualquier recuperacion de $10,000 o mas de valor recibida mediante un acuerdo o una concesi6n de arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de Ia corte antes de que Ia corte pueda desechar el caso. The name and address of the court is: (EI nombre y direcci6n de Ia corte es): San Francisco Superior Court 400 McAllister Street San Francisco, California 94102 The name. address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is: (EI nornbre, Ia direcci6n y el m1mero de telefono del abogado del dernandante, o del demandante que no tiene abogado, es): Mark A. Wasser, 400 Capitol Mall, Suite 2640, Sacramento, CA 95814, Telephone No.: (916) 444-6400 DATE: MAR 1 g 2014 CLERK OF THF r.OURT clerk, by orah Steppe (A (Fecha) (Secretario) . Deputy (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Para prueba de entrega de esta citation use el formufario Proof of Service of Summons, (POS-010)). Form Adopted for Mandatory Use JudtCial Counctl of California SUM-100 {Rev. July 1, 2009] NOTICE TO THE PERSON SERVED: You are served 1. D as an individual defendant. 2. D as the person sued under the fictitious name of (specify): 3. D on behalf of (specify): under: D CCP 416.10 (corporation) D CCP 416.20 (defunct corporation) D CCP 416.40 (association or partnership) D other (specify): 4. D by personal delivery on (date): SUMMONS D D D CCP 416.60 (minor) CCP 416.70 (conservatee) CCP 416.90 (authorized person) Pa e1of1 Code of Civil Procedure 412.20. 465 www.courtinfo.ca.gov \ ,_ X ro u..
co c ,.... f. - ATIORNEY OR PARTY WITHOUT ATIORNEY (Name. State Bar number, and address): Mark A. Wasser, SBN 060160 Law Offices of Mark A. Wasser 400 Capitol Mall, Suite 2640 Sacramento, California 95814 TELEPHONE NO.: (916) 444-6400 AnoRNEYFOR(NameJ. Plaintiff, Montere SUPERIOR COURT OF CALIFORNIA, COUNTY OF San franciSCO sTREET ADDREss: 400 McAllister Street MAILING ADDRESS. ciTY AND z1P coDE: San Franciscorl. California 94102 BRANcH NAME: Civic Center courthouse CASE NAME: CM-010 nooorah Stepps Montere Count Water Res A v. Marina Coast Water Dist., et al. CIVIL CASE COVER SHEET [Z] Unlimited D Limited (Amount (Amount Complex Case Designation D Counter D Joinder CASE NUMBER: demanded demanded is Filed with first appearance by defendant exceeds $25,000) $25,000 or less) (CaL Rules of Court, rule 3A02) DEPT Items 1-6 below must be completed (see instructions on page 2) 1. Check one box below for the case type that best describes this case: Auto Tort Contract Provisionally Complex Civil Litigation D Auto(22) D Breach of contract/warranty (06) (Cal. Rules of Court, rules 3.40o-3.403) D Uninsured motorist (46) D Rule 3.740 collections (09) D AntitrusVTrade regulation (03) Other PIJPDIWD (Personal Injury/Property D other collections (09) D Construction defect ( 1 0) Damage/Wrongful Death) Tort D Insurance coverage (18) D Mass tort (40) D Asbestos (04) D other contract (37) D Securities litigation (28) D Product liability (24) Real Property D Environmentai!Toxic tort (30) D Medical malpractice (45) D Eminent domain/Inverse D Insurance coverage claims arising from the D Other PI/PDNVD (23) condemnation (14) above listed provisionally complex case Non-PIIPD/WD (Other) Tort D Wrongful eviction (33) types (41) D Business torVunfair business practice (07) D Other real property (26) Enforcement of Judgment D Civil rights (08) Unlawful Detainer D Enforcement of judgment (20) D Defamation (13) D Commercial (31) Miscellaneous Civil Complaint D Fraud (16) D Residential (32) D RIC0(27) D Intellectual property (19) D Drugs(38) D other complaint (not specified above) (42) D Professional negligence (25) Judicial Review Miscellaneous Civil Petition D Other non-PIIPDNVD tort (35) D Asset forfeiture (05) D Partnership and corporate governance (21) IEmJioyment D Petition re: arbitration award (11) D Other petition (not specified above) (43) Wrongful termination (36} D Writ of mandate (02) D Other employment (15) [{] Other judicial review (39) 2. This case W is U is not com lex under rule 3.400 of the California Rules of Court. If the case is complex, mark the p factors requiring exceptional judicial management: a. D Large number of separately represented parties b. [Z] Extensive motion practice raising difficult or novel issues that will be time-consuming to resolve c. D Substantial amount of documentary evidence 3. Remedies sought (check all that apply): a.D monetary 4. Number of causes of action (specify): One 5. This case D is 0 is not a class action suit d. D Large number of witnesses e. [Z] Coordination with related actions pending in one or more courts in other counties. states, or countries, or in a federal court f. D Substantial postjudgment judicial supervision b. W nonmonetary; declaratory or injunctive relief c. D punitive 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) Date: March 19, 20 I 4 Mark A. Wasser (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR A TIORNEY FOR PARTY) NOTICE Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. File this cover sheet in addition to any cover sheet required by local court rule. If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes onlv. Jfaae 1 of 2 Form Adopted for Mandatory Use Judicial Council of California CM-010 [Rev July 1, 2007] CIVIL CASE COVER SHEET Cal. Rules of Court, rules 2.30. 3.220. 3.400-3.403. 3. 740, Cal Standards of Judicial Administration, std_ 3.10 www.courtinto.ca.gov \ t 0 0 CM-010 INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Tort Auto (22)-Personallnjury/Property Damage/Wrongful Death Uninsured Motorist (46) (if the case involves an uninsured motorist claim subject to arbitration, check this item instead of Auto) Other PJIPDIWD (Personal Injury/ Property Damage/Wrongful Death) Tort Asbestos (04) Asbestos Property Damage Asbestos Personal Injury/ Wrongful Death Product Liability (not asbestos or toxic/environmental) (24) Medical Malpractice (45) Medical Malpractice- Physicians & Surgeons Other Professional Health Care Malpractice Other PI/PDIWD (23) Premises Liability (e.g., slip and fall) Intentional Bodily lnjury/PDIWD (e.g., assault, vandalism) Intentional Infliction of Emotional Distress Negligent Infliction of Emotional Distress Other PIIPDIWD Non-PI/PD/WD (Other) Tort Business Tort/Unfair Business Practice (07) Civil Rights (e.g., discrimination, false arrest) (not civil harassment) (08) Defamation (e.g., slander. libel) (13) Fraud (16) Intellectual Property (19} Professional Negligence (25) Legal Malpractice Other Professional Malpractice (not medical or legal} Other Non-PI/PDIWD Tort (35) Employment Wrongful Termination (36) Other Employment (15) CM010 (Rev. July 1 2007] Contract Breach of ContractiWarranty (06) Breach of Rental/Lease Contract (not unlawful detainer or wrongful eviction) Contract/Warranty Breach-Seller Plaintiff (not fraud or negligence) Negligent Breach of Contract/ Warranty Other Breach of ContractiWarranty Collections (e.g., money owed, open book accounts) (09) Collection Case-Seller Plaintiff Other Promissory Note/Collections Case Insurance Coverage (not provisionally complex) (18) Auto Subrogation Other Coverage Other Contract (37) Contractual Fraud Other Contract Dispute Real Property Eminent Domain/Inverse Condemnation (14) Wrongful Eviction (33) Other Real Property (e.g., quiet title) (26) Writ of Possession of Real Property Mortgage Foreclosure Quiet Title Other Real Property (not eminent domain, landlord/tenant, or foreclosure) Unlawful Detainer Commercial (31) Residential (32) Drugs (38) (if the case involves illegal drugs, check this item; otherwise, report as Commercial or Residential) Judicial Review Asset Forfeiture (05) Petition Re: Arbitration Award (11) Writ of Mandate (02) Writ-Administrative Mandamus Writ-Mandamus on Limited Court Case Matter Writ-Other Limited Court Case Review Other Judicial Review (39) Review of Health Officer Order Notice of Appeal-Labor Commissioner Appeals CIVIL CASE COVER SHEET Provisionally Complex Civil Litigation (Cal. Rules of Court Rules 3.400-3.403) Antitrust/Trade Regulation (03) Construction Defect (1 0) Claims Involving Mass Tort (40) Securities Litigation (28) Environmental/Toxic Tort (30) Insurance Coverage Claims (arising from provisionally complex case type listed above) (41) Enforcement of Judgment Enforcement of Judgment (20) Abstract of Judgment (Out of County) Confession of Judgment (non- domestic relations) Sister State Judgment Administrative Agency Award (not unpaid taxes) Petition/Certification of Entry of Judgment on Unpaid Taxes Other Enforcement of Judgment Case Miscellaneous Civil Complaint RICO (27) Other Complaint (not specified above) (42) Declaratory Relief Only Injunctive Relief Only (non- harassment) Mechanics Lien Other Commercial Complaint Case (non-tort/non-complex) Other Civil Complaint (non-tort/non-complex) Miscellaneous Civil Petition Partnership and Corporate Governance (21) Other Petition (not specified above) (43) Civil Harassment Workplace Violence Elder/Dependent Adult Abuse Election Contest Petition for Name Change Petition for Relief From Late Claim Other Civil Petition Page 2of 2 ' I 2 3 4 5 6 7 8 9 10 c CHARLES J. MCKEE, State Bar No. 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.caus MARK A. WASSER, State Bar No. 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 Plaintiff 11 Monterey County Water Resources Agency 12 Deborah Steppe (Filing Fee Exempt: Gov. Code 6103) IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 17 18 Plaintiff, vs. MARINA COAST WATER DISTRICT; 19 CALIFORNIA-AMERICANWATER COMPANY, a California corporation; and 10 DOES 1 through 10, inclusive, Defendants. COMPLAINT FOR DECLARATORY RELIEF (Code of Civ. Proc. 1060) 21 22 23 24 25 26 Plaintiff Monterey County Water Resources Agency ("Agency") alleges: FIRST CAUSE OF ACTION (Declaratory relief, Code ofCiv. Proc. 1060, against all cross-defendants) 1. The Agency is and at all times herein mentioned was a local public agency organized 27 and existing under and pursuant to the Monterey County Water Resources Agency Act ("Agency 28 Act"), West's Annotated Water Code Appendix, Chapter 52. ;_;:::w OHt<:e;: c:i -}- __ ____________________ __
0 0 2. Defendant Marina Coast Water District ("MCWD") is and at all times herein 2 mentioned was a county water district organized and existing under and pursuant to the County 3 Water District Law, section 30000 et seq. of the Water Code. 4 3. Defendant California-American Water Company ("Cal-Am") is and at all times 5 herein mentioned was a California corporation organized and existing under and pursuant to the laws 6 ofthe State of California and doing business in Monterey County. Cal-Am is a privately owned 7 water utility regulated by the California Public Utilities Commission e'CPUC"). Cal-Am owns and 8 operates a water distribution system within Monterey County that provides domestic drinking water 9 to thousands of consumers. 10 4. The Agency is ignorant of the true names and capacities of cross-defendants DOES 1 I I through 10, inclusive and, therefore, sues those cross-defendants by those fictitious names. The 12 Agency is informed and believes and thereon alleges that each of the fictitiously named cross- 13 defendants is a present or former employee, agent or representative of the cross-defendants, is 14 responsible for the matters alleged herein and is interested in this proceeding. The Agency will 15 amend this complaint to set forth the true names and capacities of the fictitiously named cross- 16 defendants when the same have been ascertained. Each allegation in this cross-complaint regarding 17 the cross-defendants includes all the fictitiously named cross-defendants. 18 5. There is a historic water shortage on the Monterey J>eninsula. The area has few 19 adequate sources of potable water. For many years, Cal-Am has diverted water from the Carmel 20 River to serve its thousands of residential and business customers on-the Monterey Peninsula. 21 However, as a result of orders issued by the State Water Resources Control Board, Cal-Am must 22 reduce its diversions from the Carmel River and develop alternative sources of potable water by 23 December 31,2016. 24 6. The Agency, Cal-Am and MCWD jointly entered into five written contracts for the 25 purpose of developing, constructing and operating a regional desalination project that would provide 26 an alternate source of potable water for Cal-Am's Monterey Peninsula customers and meet the 27 requirements of the orders issued by the State Water Resources Control Board. 28 7. The parties' agreement to develop, construct and operate a regional desalination 't ::-.w Cllices <"' -2-
0 1 project was memorialized in the five contracts, which consisted of the Reimbursement Agreement, 2 the Settlement Agreement, the Credit-Line Agreement, the Water Purchase Agreement and the 3 Project Management Agreement. The parties have referred to the five contracts, collectively, as the 4 "RDP Agreements." The Reimbursement Agreement was approved on February 26,2010. The 5 Settlement Agreement, Water Purchase Agreement, Credit-Line Agreement and Project 6 Management Agreement were approved effective January 11, 2011. The Agency, Cal-Am and 7 MCWD were parties to all the RDP Agreements. RMC Water and Environment ("RMC") was an 8 additional party to the Project Management Agreement. 9 8. The RDP Agreements were an interdependent and integrated set of contracts that, 10 collectively, represented the parties' agreement and meeting ofthe minds on the development, 11 construction and operation of the regional desalination project. 12 9. In or about April, 2011, and after the RDP Agreements had been approved and 13 executed, it was publicly revealed and discovered that Stephen P. Collins, who was a long-serving 14 member of the Agency's appointed board of directors, had been secretly retained as a consultant by 15 RMC and paid to advocate approval ofthe regional desalination project and the RDP Agreements 16 while he was simultaneously serving as a member of the Agency's appointed board of directors. 17 10. In violation of Government Code section 1090, Collins made and participated in the 18 making of contracts in which he had a financial interest while he was a public official. 19 11. The Agency retained the law firm ofRemcho, Johansen & Purcell to investigate the 20 matter. In a report released in June, 2011 (the "Remcho Report"), the firm concluded Collins had 21 violated Government Code section 1090. 22 12. MCWD retained the law firm of Richards, Watson & Gershon to investigate the 23 matter. In a report signed by James Markman and released in July, 2011 (the "Markman Report"), 24 that firm also concluded Collins had violated Government Code section 1090. The Markman Report 25 reached the additional conclusion the RDP Agreements were not void, despite Collins' violation of 26 section 1090. 27 13. Thereafter, in letters dated July 7, 2011, July 20, 2011 and August 22, 2011 and in 28 other public statements, the Agency announced the RDP Agreements were void as a result of Of!ices cl -3-
,,,--------------------------------------------- c 0 1 Collins' conduct. 2 14. On September 28,2011, Cal-Am terminated the RDP Agreements and, thereafter, 3 obtained approval from the CPUC to pursue an alternative project for development of the necessary 4 new source of water for its Monterey Peninsula customers. 5 15. The parties spent several months trying to mediate a resolution to their claims against 6 each other over the failed regional desalination project. Although Cal-Am and the Agency were able 7 to negotiate a settlement with each other, no settlement was reached with MCWD. MCWD 8 continued to assert that the RDP Agreements were valid and enforceable and that the regional 9 desalination project should be developed, constructed and operated despite the corruption that 10 infected the RDP Agreements because of Collins' misconduct. 11 16. The Monterey County District Attorney filed criminal charges against Collins for 12 violation of Government Code section 1090 and, on or about March 18, 2014, Collins entered a plea 13 of no contest to a felony violation of section 1090. 14 17. As a consequence of Collins' violation of section 1090, the RDP Agreements are 15 void. 16 18. An actual controversy has arisen and presently exists between the parties in that the 17 Agency contends the RDP Agreements are void, whereas MCWD disagrees and contends the RDP 18 Agreements are valid. 19 19. The Agency requests a declaration of the parties' rights and duties with respect to the 20 RDP Agreements and a dec1aration the RDP Agreements are void. 21 20. This complaint is subject to the four-year statute oflimitations in Government Code 22 section 1092(b) which began to run when Collins' conduct was discovered in or about April, 2011 23 and is timely filed. 24 21. The controversy alleged herein affects the parties' substantial rights as well as the 25 substantial public interest in the integrity of government and the honesty of public officials. Its 26 prompt resolution is in the best interests of the parties and the public. 27 WHEREFORE, the Agency prays tor a declaratory judgment determining the parties' rights 28 and duties with respect to the RDP Agreements and declaring the RDP Agreements void, awarding -4- __________ _
0 the Agency its reasonable attorney's fees and costs and providing such other relief as this Court 2 deems just. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: March 19,2014 LAW OFFICES OF MARK A. WASSER By: ZfJdJ d MARK A. WASSER Attorneys for Plaintiff Monterey County Water Resources Agency NO VERIFICATION REQUIRED Code of Civil Procedure 446 Offices oi- -5-