2

3
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ALLEN MATKINS LECK GAMBLE

MALLORY & NATSIS LLP
ROBERT R. MOORE (BAR NO. 113818)
MICHAEL J. BETZ (BAR NO. 196228)
KETAKEE R. KANE (BAR NO. 291828)
Three Embarcadero Center, 12th Floor
San Francisco, CA 94111-4074
Phone: (415) 837-1515
Fax: (415) 837-1516
E-Mail: rmoore@allenmatkins.com
mbetz@allenmatkins.com
kkane@allenmatkins.com

ELECTRONICALLY

FILED
Superior Court of California,
County of San Francisco

FEB 21 2014
Clerk of the Court
BY: VANESSA WU
Deputy Clerk

Attorneys for Plaintiff

8 CALIFORNIA-AMERICAN WATER COMPANY,
a California corporation
9

10

SUPERIOR COURT OF THE STATE OF CALIFORNIA

11

FOR THE COUNTY OF SAN FRANCISCO

12
13 CALIFORNIA-AMERICAN WATER
COMPANY, a California corporation,
14
Plaintiff,
15
v.
16
MARINA COAST WATER DISTRICT;
17 MONTEREY COUNTY WATER
RESOURCESAGENCY;andDOES2
18 through 10, inclusive,

Case No. CGC-13-528312

Judge: Hon. Curtis E. A. Kamow
CALIFORNIA-AMERICAN WATER
COMPANY'S SUPPLEMENTAL BRIEF
PURSUANT TO COURT'S REQUEST

Complaint Filed:
Oct. 19, 2012
Trial Date: March 24,2014

Defendants.

19
20

MARINA COAST WATER DISTRICT,

21
Cross-Complainant,
22
23

v.

CALIFORNIA-AMERICAN WATER
24 COMPANY, a California Co~oration;
MONTEREY COUNTY WA ER
25 RESOURCESAGENCY;andROES1
through 50, inclusive,
26
Cross-Defendants.
27
28
AJien Matkins Leek Gamble
Mallory & Natsis LLP

914831.05/SF

Cal-Am's Supplemental Reply Brief

TABLE OF CONTENTS

Page

2
3 I.

Introduction .............................................................................................................. 1

4 II.

Analysis .................................................................................................................... 2

A.

Government Code Section 1092 Is A Four-Year Statute Of

Limitations Which Applies To The Gravamen Of This Case ....................... 2

B.

There Is Clear Le~islative Intent To Apply The Four-Year

Statute Of LimitatiOns To This Case ............................................................. 3

c.

Voiding the RDP Agreements Would Not Be A Harsh Result

ForMCWD ................................................................................................... 4

D.

Under Any Other Statutory Analysis, Section 1092 Is the

Applicable Statute of Limitations ................................................................. 6

E.

Government Code Section 1092(b) Is The Applicable Statute

Of Limitations Because It Is More Specific Than Agency Act
Section 52-39 ................................................................................................ 7

F.

Government Code Section 1092(b) Is The Applicable Statute

Of Limitations Because It Was Enacted Later In Time Than
Agency Act Section 52-39 ............................................................................ 8

6
7
8
9
10

11
12
13
14
15 III.

Conclusion ................................................................................................................ 8

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LAW OFFICES

Allen Matkins Leek Gamble

Mallory & Natsis LLP

914831.05/SF

(i)

Cal-Am's Supplemental Reply Brief

TABLE OF AUTHORITIES

Page(s)

2
3 Cases

4 Anson v. County ofMerced

(1988) 202 Cal.App.3d 1195 .................................................................................... 4
5
Cutujian v. Benedict Hills Estates Assn.
6
(1996) 41 Cal.App.4th 1379 ..................................................................................... 4
7 Fuentes v. Worker's Compensation Appeals Board
(1976) 16 Cal.3d 1......................... ;.......................................................................... 7
8
Hensler v. City of Glendale
9
(1994)8Ca1.4th1 ..................................................................................................... 2

10 Leeper v. Beltrami
(1959) 53 Cal.2d 195 ................................................................................................ 2
11

12

Loken v. Century 21 Award Properties

(1995) 36 Cal. App. 4th 263 ..................................................................................... 8

13 Maguire v. Hibernia S. & L. Soc.

(1944) 23 Cal.2d 719 ................................................................................................ 2
14
Marin Healthcare District v. Sutter Health
15
(2002) 103 Cal.App.4th 861 ..................................................................................... 2
16
17
18

Norga'(/99~)jf1hC~~th 383 ............................................................................................... 4

Stone Street Capital LLC v. California State Lottery Commission
(2008) 165 Cal.App.4th 109 .................................................................................. 6, 8

19 Strother v. California Coastal Commission

(2009) 172 Cal.App.4th 873 ..................................................................................... 6
20
Thomson v. Call
21
(1985) 38 Cal.3d 633 ................................................................................................ 5

LAW OFFICES

22 Turner v. Association ofAme[Jcan Medical Colleges

(2011) 193 Cal.App.4 1047 ................................................................................ 3, 6
23
Western Oil and Gas Association v. Monterey Bay Unified Air Pollution
24
Control District
(1984) 49 Cal.3d 408 ................................................................................................ 7
25
Statutes
26
Cal. Code Civ. Proc. 1859 ................................................................................................ 8
27
Gov. Code 1092(b) ....................................................................................................... 3, 7
28
Pub. Resources Code 21080.5 .......................................................................................... 6

Allen Matkins Leek Gamble

Mallory & Natsls LLP

914831.05/SF

(ii)
Cal-Am's Supplemental Reply Brief

Page(s)

2 Pub. Resources Code 30801 ............................................................................................. 6

3 Other Authorities
Bill

~~6o~-26~R~~~~ras~~~~f~~.~~:..~.:.:.~~~?. ....................................................... 3

6 Bill

Re&~K~~;1if.io1~7~.~~. ?~~.~~.~~.~~~~~~.~~.~~.~~~~~:.:.~~~.~~~~~~~ 3

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LAW OFFICES

Allen Matkins Leek Gamble

Mallory & Natsis LLP

914831.05/SF

(iii)
Cal-Am's Supplemental Reply Brief

I. INTRODUCTION

Under any test, whether legal or equitable, California-American Water Company's

3 ("Cal-Am") declaratory relief action asking the Court to void the Regional Desalination
4 Project ("RDP") Agreements based on the violation of Government Code section I090 is
5 not time-barred.
6

The California Supreme Court has made clear the inquiry as to which statute of

7 limitations applies to a claim depends upon the nature of the cause of action, i.e., the
8 "gravamen" of the cause of action. Here, without question, the gravamen of Cal-Am's
9 Complaint, or the nature of the right sued upon, is the public's right to be free from
I 0 contracts made pursuant to a financial conflict of interest. As such, the statute of
II limitations set forth in Government Code section I 092, which governs contracts formed
I2 under financial conflicts of interest, controls, and the Court need not go any further.
13

To the extent this Court needs additional support for the application of a four-year

I4 statute of limitations, courts have looked to legislative history.

Section I 092(b )'s

15 legislative history demonstrates a compelling need to have a four-year statute of limitations

16 to challenge contracts made pursuant to financial conflicts of interest. According to the
17 legislature, "a minimum" of four years is often necessary to gather information and
18 develop a case for voiding a contract pursuant to Section 1092. In contrast, the Monterey
19 County Water Resources Agency (the "Agency") Act, Water Code Appendix section 52-39
20 600 page legislative history makes no mention of Section 52-39's intended use, the need
21 for a 60-day statute of limitations, and there are no cases interpreting Section 52-39. 1
22 Instead, the Agency Act is meant to protect the local Agency and no one else.
23

Applying 1092's four-year statute of limitations is not a harsh outcome for Marina

24 Coast Water District ("MCWD").

The California Supreme Court has ruled that the

25 consequences of Section 1092 may be harsh, but are justified to keep the public free of
26 contracts corrupted by financial conflicts of interest. Perhaps more importantly, MCWD
27
1

LAW OFFICES

This brief only includes references to Agency Act section 52-39's 60-day statute of limitations
28 because the Court so directed. The same arguments apply to Government Code section 52511 and
Water Code section 10066.

Allen Mal:t!:ins Leek Gamble

Mallory & Natsls LLP

914831.05/SF

-1-

Cal-Am's Supplemental Reply Brief

1 cannot complain about any harsh result as it caused the financial conflict of interest by
2 directing RMC to hire Mr. Collins after being informed by its own counsel that the
3 hiring would cause a conflict of interest.
4

The Court has referred the parties to various cases applying other theories of

5 statutory interpretation; each one actually supports the conclusion that Section 1092(b) is
6 the proper limitations period to be applied. Courts have looked to harmonize differing
7 statutes and frequently find an amendment or an exception as a way to harmonize. If the
8 court cannot harmonize the statutes, specific statutes prevail over general statutes, and the
9 later-enacted statute prevails because the Legislature is presumed to know of the law
10 regarding earlier enacted statutes. Application of any of these methods of analysis results
11 in the same outcome, Section 1092(b) applies.
12

II. ANALYSIS

13

A.

14

The California Supreme Court has ruled: "[t]o determine the statute of limitations

GOVERNMENT CODE SECTION 1092 IS A FOUR-YEAR STATUTE OF

LIMITATIONS WHICH APPLIES TO THE GRAVAMEN OF THIS CASE.

15 which applies to a cause of action it is necessary to identifY the nature of the cause of
16 action, i.e., the 'gravamen' of the cause of action. '[T]he nature of the right sued upon and
17 not the form of action nor the relief demanded determines the applicability of the statute of
18 limitations under our code.'" (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22-23, citing
19 Leeper v. Beltrami (1959) 53 Cal.2d 195, 214 and Maguire v. Hibernia S. & L. Soc. (1944)
20 23 Cal.2d 719, 733.)
21

In Marin Healthcare District v. Sutter Health (2002) 103 Cai.App.4th 861, the

22 plaintiff sought to void a contract based on a fmancial conflict of interest and recover real
23 property conveyed pursuant to the voided contract. The court confirmed that the nature of
24 the right sued upon (i.e., the gravamen ofthe claim) determines what statute of limitations
25 applies. (!d. at p. 876.) The court found a four-year statute of limitations applied because
26 plaintiffs claim was brought pursuant to the public's right to be free of a government
27 contract made under the influence of a fmancial conflict of interest (Gov't Code 1090),
28 which fell within the Code of Civil Procedure 343 four-year catch-all provision. (See
LAWOFFtCES

Allen Matkins L&ek Gamble

Mallory & Natsis LLP

914831.05/SF

-2-

Cal-Am's Supplemental Reply Brief

1 id.)
2

Here, like in Marin Healthcare, the "nature of the right sued upon" is the right of

3 the public to be free of a government contract (the RDP Agreements) made under the
4 influence of a financial conflict of interest.

Cal-Am's Complaint alleges the RDP

5 Agreements are void as a matter of law due to Stephen Collins' financial conflict of interest
6 violation which is expressly prohibited by Government Code section 1090. The complaint
7 does not seek to void the contracts under any other theory. As such, Section 1092(b)
8 specifically applies to this complaint.

9
10

B.

THERE IS CLEAR LEGISLATIVE INTENT TO APPLY THE FOUR-YEAR

STATUTE OF LIMITATIONS TO THIS CASE.

To the extent other additional analysis is necessary, courts look to the legislative

11 history and legislative intent to effectuate the purpose of the statute in determining which
12 statute of limitations to apply.

(Turner v. Association of American Medical Colleges

13 (2011) 193 Cal.App.4th 1047, 1056.) Specifically, in 2007, the legislature established a

14 four-year statute of limitations for Section 1090 and Section 1092 claims. (See Gov. Code
15 1092(b); Cal-Am/Agency Joint Appendix, Ex. A (Bill Analysis of AB 1678, as Amended
16 May 14, 2007 (2007-2008 Regular Session, hereinafter "Leg. Hist.") In describing the
17 need for a four-year statute of limitations, the Legislature considered a then pending case
18 and the repercussions from a corrupt city manager in the city of South Gate:

25

"Defendants in the South Gate cases have asserted that the one-year statute
of limitations to commence action as described in section 340 of the Civil
Procedure code apply to the voided contract proceedings. Because the issues
are complex and require time to investigate, a one-year statute of limitations
would p1ace public entities at a disadvantage when trying to void contracts
made by public officers in violation of the law. Often the relationships and
fj.nancial. mterests that may lead to a voided contract are complex and take
tlme to discover .
. . .An explicit four-year statute of limitations would provide clarity to the law
and would be consistent with established judicial precedents, whife providing
public entities sufficient time to investigate illegal deals." (Bill Report of
Bill AB 1678 to Office of Planning and Research, Legislative Unit, May 14,
2007.)

26

It is evident that the Legislature enacted I 092(b) to address a situation comparable

19
20
21
22
23
24

27 to the one at issue, and Section I 092 was enacted to protect entities when they are
28 attempting to void corrupt contracts. If a one-year statute of limitations is too short to
LAW OFFICES

Allen Matkins Leek Gamble

Mallory & Natsis LLP

914831.05/SF

-3Cal-Am's Supplemental Reply Brief

1 satisfy that intent, the Legislature would certainly fmd a 60-day statute of limitations too
2 short to gather facts to pursue a claim to void a contract made in violation of Section
3 1090. 2
In contrast, MCWD's claim that Section 52-39 is meant to protect MCWD has no

5 foundation in its legislative history. In over 600 pages of legislative history for the Agency
6 Act, there is no mention of Section 52-39's intended use, the need for a 60-day statute of
7 limitations, and, to Cal-Am's knowledge, there are no cases interpreting Section 52-39.
8 Instead, the Agency Act itself makes it clear it is meant to apply to the Agency. (Water
9 Code Appendix, section 52-4- 52-5.)3
10

Finally, while courts have acknowledged the purpose of statutes of limitations is,

11 "to promote justice by preventing surprises through the revival of claims that have been
12 allowed to slumber until evidence has been lost, memories have faded, and witnesses have
13 disappeared"

(Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379,

14 1387), that purpose is often outweighed by the notion that cases should be decided on their
15 merits. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.) Here, application of the 6016 day statute of limitations would preclude this Court from deciding this case on its merits,
17 which would be a great injustice as this illegal activity led to a significant delay of the
18 construction of one of the largest public infrastructure project in Monterey County history.
19

C.

VOIDINGTHERDP AGREEMENTSWOULDNOTBEAHARSHRESULTFOR

MCWD.
At the February 7, 2014 hearing, the Court appeared to voice a concern that Section

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LAW OFFICES

According to MCWD, the statute of limitations would have barred the action five months
before any party investigated the financial conflict of interest. (Cal-Am/ AJ::ency Joint Appendix,
Ex. K (Remcho Report).) MCWD itself took seven months (the effective date of the Water
Purchase Agreement to the completion of the Markman Report) in order to complete its
investigation of Mr. Collin's financial conflict of interest. ((MCWD Book of Exhibits, Ex. HH
~CAW Credit Line Agreement)(Cal-Am/ Agency Joint Appendix, Ex. L (Markman Report).)
MCWD's reliance on Anson v. County of Merced (1988) 202 Cal.App.3d 1195, for the
proposition that when the Legislature did not specifically address the conflict between the two
equally specific statutes, it intended the shorter of the two statutes to apply, is severely misplaced.
In Anson, the question was whether a shorter or longer statute of limitations applies in a medical
malpractice case. (See id.) The court found the shorter statute of limitations applied because it
looked to Legislative intent, and found the Legislature intended for shorter statutes of limitations
in medical malpractice cases. (!d. at p. 1202). Here, Legislature has made clear a longer statute of
limi~ations needs to apply in section 1090 cases. As such, the four-year statute of limitations
applies.

Allen Matkins Leek Gamble

Mallory & Natsis LLP

9l483L05/SF

-4Cal-Am's Supplemental Reply Brief

1 1092(b) may provide a harsh remedy under certain circumstances. Although the facts
2 differ from this case, the California Supreme Court has generally addressed severity of the
3 remedy provided by Sections 1090 and 1092, and determined it necessary to protect the
4 public from corrupt contracts. (See Thomson v. Call (1985) 38 Cal.3d 633.) In Thomson,
5 the court found a contract to convey real property from city council member Hubert Call to
6 the city was an unmistakable violation of Section 1090, and Call must return the proceeds
7 from the sale but the court allowed the city to retain title to the land it purchased. (Id. at
8 p. 646.) The court acknowledged that "forfeiture in this case is undeniably harsh in light
9 of the absence of fraud and Call's partial reliance upon advice given by the city attorney,"
10 but such a remedy is consistent with California law and "provides a strong disincentive for
11 those officers who might be tempted to take personal advantage of their public offices."
12 (Jd. at pp. 650, 652.)
13

Here, neither the four-year statute of limitations nor voiding the contracts is a harsh

14 remedy for MCWD. Despite pointing the finger at Mr. Collins as the "bad actor," in truth,
15 MCWD created the financial conflict ofinterest.4 In January 2010, Jim Heitzman, General
16 Manager of MCWD, convinced RMC Consulting, consultant to MCWD, to hire Stephen
17 Collins to assist with formation of the RDP agreements, knowing full well this would
18 create a conflict of interest. (Cal-Am/Agency Joint Appendix, Ex. CC (Melton Depo.)
19 p. 64:19-24, p. 65:12-66:4; Ex. G (January 8, 2010 e-mail from Heitzman to Lowrey, and
20 Lowrey's response on same day).) MCWD's own counsel, Lloyd Lowrey explicitly told
21 Mr. Heitzman, "I do believe that [Mr. Collins] employment/engagement by RMC will
22 create a conflict of interest ... " (Cal-Am/Agency Joint Appendix, Ex. G.) MCWD
23 nevertheless went forward with hiring Mr. Collins; he was paid over $160,000 for his work
24 on the RDP agreements. (Cal-Am/Agency Joint Appendix, Ex. B, C, D, E (Contract
between Collins and RMC, January 8, April 7, July 19, and December 2, 2010).)
25
26
4

LAW OFFICES

The innocent parties to these contracts are the Agency and Cal-Am and the court will note that
27 neither innocent party has any interest in _proceeding with this project pursuant to contracts that
were corrupted by the financial conflict of mterest. In fact, Cal-Am has obtained California Public
28 Utilities Commission (CPU C) approval to withdraw from the RDP agreements in order to pursue
another project. (MCWD Book ofExs., Ex. R (D. No. 12-07-008) at p. 19.)

Allen Matkins Leek Gamble

Mallory & Natsls LLP

914831.05/SF

-5Cal-Am's Supplemental Reply Brief

D.

As the Court has noted, there are other theories of statutory interpretation that could

UNDER ANY OTHER STATUTORY ANALYSIS, SECTION 1092 Is THE

APPLICABLE STATUTE OF LIMITATIONS

3 theoretically apply to this case. MCWD's attempts, however, to harmonize the two statutes
4 by claiming Mr. Collins will be criminally prosecuted while the RDP agreements can be
5 enforced pursuant to Section 52-39, is not one of them.
6

Courts have attempted to harmonize conflicting statutes. For example, iftwo statutes

7 appear to conflict, the court seeks to harmonize the two statutes rather than finding an implied
8 repeal of one of the conflicting statutes. (Stone Street Capital LLC v. California State Lottery

9 Commission (2008) 165 Cal.App.4th 109.) In Stone Street Capital, an assignee of a lottery
10 award sought a declaratory relief judgment for the remaining payments owed to the assignor.
11 The case was a conflict between the Lottery Act which prohibits such assignments and the
12 California Uniform Commercial Code which generally permits assignments. (Id at p. 113.)
13 The Court harmonized the Lottery Act and the Uniform Commercial Code by fmding the
14 Lottery Act applies as an exception to the Uniform Commercial Code, because the Uniform
15 Commercial Code contained broad provisions regarding assignments whereas the Lottery Act
16 contained a specific prohibition against such assignments. (!d.)
17

In Strother v. California Coastal Commission (2009) 172 Cal.App.4th 873, the

18 plaintiff challenged a permit issued by the California Coastal Commission.

Plaintiff

19 argued a 30-day statute of limitations applied to his claims pursuant to Pub. Resources
20 Code section 21080.5 which covers a "state agency's decision," where it is alleged "the
21 plan or other written documentation prepared pursuant to paragraph (3) of subdivision (d)
22 does not comply with this Section .... " Defendant argued a 60-day statute of limitations
23 applied pursuant to Pub. Resources Code section 30801 which concerns "any decision" by
24 the Commission. The Court harmonized the two statutes by finding 21080.5 to be an
25 exception to 30801 because it governed a limited type of attack on Commission rulings.
26 (Id. at p. 880-81; see also, Turnerv. Association of Medical Colleges (2011) 193
27 Cal.App.4th 1047, harmonizing Civil Code section 55, which awards attorney's fees to the
28 prevailing party in a civil rights action with Civil Code sections 52-54 which awards
LAW OFFICES

Allen Matkins Leek Gamble

Mallory & Natsls LLP

914831.05/SF

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Cal-Am's Supplemental Reply Brief

1 attorney's fees only the prevailing plaintiff in a civil rights by finding Section 52-54 as an
2 exception to Section 55.)
3

In this case, the two statutes can be harmonized (if found to be conflicting) by

4 fmding Section 1092 to be an exception to Section 52-39.

Like in Stone Street,

5 Section 1092 is a specific provision which governs a single subject:

6 pursuant to a financial conflict of interest.

contracts made

Section 52-39 governs a broader subject:

7 challenges to the form and substance of any Agency contract. Also, just as in Strother,
8 Section 1092 governs a limited type of attack (an action to declare a contract void), while
9 Section 52-39 governs a broader attack on Agency contracts ("any judicial or proceeding
10 to attack, revise, set aside, void, annul or challenge the validity or legality of a zone ... ").
11 Section 1092 can thereafter be construed as an exception to Section 52-39.
12

Additionally, applying Section 52-39 (which is applicable only to Monterey County

13 Agency contracts) rather than Section 1092 (which applies to all California contracts
14 procured pursuant to a financial conflict of interest) would serve as a functional repeal of
15 Section 1092 only in Monterey County. Such a result would mean that only in Monterey
16 County, public corruption must be known, investigated, and a legally pursued within 60
17 days of the creation of a contract made pursuant to an unlawful financial conflict of
18 interest. This would be contrary to California law. (Western Oil and Gas Association v.
19 Monterey Bay Unified Air Pollution Control District (1984) 49 Cal.3d 408, 419, holding
20 there is a strong presumption against repeal by implication.)
21

E.

22
23

GoVERNMENT CODE SECTION 1092(B) Is THE APPLICABLE STATUTE OF

LIMITATIONS BECAUSE IT IS MORE SPECIFIC THAN AGENCY ACT
SECTION 52-39.

If the two statutes cannot be harmonized, the Supreme Court has ruled that the more

24 specific statute controls. (Fuentes v. Worker's Compensation Appeals Board (1976) 16

25 Cal.3d 1, 7.)

Here, as demonstrated above, Section 1092 is more specific than

26 Section 52-39, because it concerns a challenge to a specific type of conduct (financial

27 conflict of interest) and contains a specific remedy (voiding a contract). Section 52-39, on
28 the other hand, concerns any number of challenges.
LAW OFFICES

Allen Matkins Leek Gamble

Mallory & Natsis LLP

914831.05/SF

7Cal-Am's Supplemental Reply Brief

F.

GOVERNMENT CODE SECTION 1092(B) IS THE APPLICABLE STATUTE OF

LIMITATIONS BECAUSE IT WAS ENACTED LATER IN TIME THAN AGENCY
ACT SECTION 52-39.

If two statutes conflict, the later enactments supersede earlier enactments because

4 the Legislature is presumed to know of the law regarding earlier enacted statutes. (Stone
5 Street Capital, LLC, 165 Cal.App.4th at 118; Loken v. Century 21 Award Properties
6 (1995) 36 Cal. App. 4th 263, 272 (holding "the legislature is presumed to be aware not
7 only of the general laws which it has enacted but also of the judicial decisions interpreting
8 those laws"); Cal. Code Civ. Proc. 1859.)
9

In this case, Section 52-39 was adopted in 1990. (Reply Decl. of B. Tilden Kim,

10 Exhibits PP, QQ, and RR.)

Section 1092(b) was enacted by the Legislature in 2007,

11 twenty-seven years after Section 52-39.

(Leg. Hist. at page 1.) As Section 1092 was

12 enacted later, it controls.

13

As applied to this case, the legislative history also demonstrates the Legislature was

14 well aware of earlier statutes of limitations that may be applicable to Section 1090
15 financial conflict of interest challenges, albeit not specifically Section 52-39.

The

16 Legislature nevertheless applied a four-year statute of limitations to Section 1092 claims to

17 protect the public from contracts entered into under a financial conflict of interest. If the
18 Legislature, or a Court of Appeal, was faced with the Section 52-39 versus Section 1092
19 question, there is no reason to believe the outcome would be any different than the holding
20 in Marin Healthcare or Section 1092(b).
21
22

Ill. CONCLUSION

For the foregoing reasons, the applicable statute of limitations in this case is

23 Government Code section 1092(b )'s four-year statute of limitations, and Cal-Am's claims
24 for relief are not time-barred. MCWD's motion should be denied.
25
26 Dated: February 21, 2014

ALLEN MATKJNS LECK GAMBLE MALLORY & NA TSIS LLP

27

By:

28

Robert R. Moore
Attorneys for Plaintiff California-American Water Company

1-z. (.,..:1 12-. ~ ~

LAW OFFICE$

Allen Matkins Leek Gamble

Mallory & Natsis LLP

914831.05/SF

-8-

Cal-Am's Supplemental Reply Brief

1
PROOF OF SERVICE

I am employed in the County of San Francisco, State of California. I am over the age of
3 eighteen (18) and am not a party to this action. My business address is Three Embarcadero

Center, 12th Floor, San Francisco, CA 94111-4074.

4

On February 21, 2014, I served the within document(s) described as:

5

CALIFORNIA AMERICAN WATER COMPANY'S NOTICE OF ERRATUM CONCERNING THE

JOINT SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE SUBMITTED IN OPPOSITION TO
MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

on the interested parties in this action as stated on the attached mailing list:
8
9

BY ELECTRONIC SERVICE VIA File & ServeXpress: I transmitted a true and

correct copy of the above-entitled pleading via "File & ServeXpress" to the parties as
indicated in the attached Service List.

10
I declare under penalty of perjury under the laws of the State of California that the
11 foregoing is true and correct.

12

Executed on February 21,2014, at San Francisco, California.

13

By:

Is/ Natylie Baldwin

NATYLIE

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915401.01/SF

Proof of Service

BALDWIN

SERVICE LIST

2 B. Tilden Kim, Esq.

Richards, Watson & Gershon
3 355 South Grand Avenue, 40th Floor
Los Angeles, CA 90071-3101
4 Phone: (213) 626-8484
Fax: (213) 626-0078
5 E-Mail: jmarkman@rwg1aw.com
E-Mail: tkim@rwglaw.com
6 E-Mail: tbailey@rwglaw.com
E-Mail: bmiller@rwglaw.com
7

Attorneys for Marina Coast Water District

Served via File & ServeXpress

8 Mark Fogelman, Esq.

Friedman & Springwater LLP
9 33 New Montgomery, Suite 290
San Francisco, CA 94105
10 Phone: (415) 834-3812
Fax: (415) 834-1044
11 E-Mail: mfogelman@friedmanspring.com
E-Mail: rmuzzin@friedmanspring.com
12

Attorneys for Marina Coast Water District

Served via File & ServeXpress

13 Mr. Charles J. McKee

County of Monterey
14 168 West Alisal Street, 3rd Floor
Salinas, CA 93901-2439
15 Phone: (831) 755-5045
Fax: (831) 755-5283
16 E-Mail: mckeecj@co.monterey.ca.us

Attorneys for County of Monterey

Served via File & ServeXpress

17
Mark A. Wasser
18 Law Offices of Mark A. Wasser
400 Capitol Mall, Suite 2640
19 Sacramento, CA 95814
Phone: (916) 444-6400
20 Fax: (916) 444-6405
E-Mail: mwasser@markwasser.com
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Attorneys for County of Monterey

Served via File & ServeXpress

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915401.0l/SF

Proof of Service