Jan 22, 2021
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TENTATIVE RULINGS
LAW & MOTION CALENDAR
Friday, January 22, 2021, 3:00 p.m.
Courtroom 16 – Hon. Patrick M. Broderick
3035 Cleveland Avenue, Suite 200, Santa Rosa
 
In accordance with the Addendum to First Amended Omnibus Order of the Presiding Judge issued May 27, 2020, only those persons with court hearings in criminal actions shall enter a Sonoma County Superior Court facility. Until further notice, all matters set for hearing in this courtroom shall be heard remotely through Zoom. No party or representative of a party may appear personally in Courtroom 16. CourtCall is not permitted for this calendar.
 
TO JOIN “ZOOM” ONLINE,
Courtroom 16
Meeting ID: 824-7526-7360
Passcode: 840359
 
TO JOIN “ZOOM” BY PHONE,
By Phone (same meeting ID and password as listed above):
(669) 900-6833 US (San Jose)
 
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. today, Thursday, January 21, 2021. Parties in motions for claims of exemption are exempt from this requirement.
 
PLEASE NOTE: The Court WILL provide a court reporter for this calendar. If there are any concerns, please contact the Court at the number provided above.
 
 
1.         MCV-238133, Collectronics, Inc. v. Manji
 
This matter is on calendar for the motion of court-appointed receiver Michael Brewer (1) approving final report and accounting and final compensation; (2) discharging receiver; (3) termination of receiver; and (4) abandoning books and records.  The motion was continued from November 25, 2020 due to a lack of proof of service of the motion.  Proof of service now having been filed, the motion is GRANTED.  The Court will sign the proposed order filed with the motion.
 
 
2.         MCV-248240, Bank of America, N.A. v. Shanley
 
This matter is on calendar for the motion of Plaintiff Bank of America, N.A. (“Plaintiff”) for an order granting judgment on the pleadings in Plaintiff’s favor.  The motion is made on the grounds that on July 31, 2020, this Court entered an order deeming admissions admitted against the Defendant Molly Mettille Shanley (“Defendant”).  The motion is GRANTED. The Court will sign the proposed orders lodged on October 16, 2020.
 
A motion for judgment on the pleadings may be made by plaintiff on the ground that the complaint states facts sufficient to constitute a cause of action against the defendant and “the answer does not state facts sufficient to constitute a defense to the complaint.”  (Code Civ. Proc., § 438(c).) The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts which the court may judicially notice.  (Code Civ. Proc., § 438(d).) In addition to the facts pleaded, this Court may consider matters that may be judicially noticed, including a party's admissions or concessions which cannot reasonably be controverted.  (Pang v. Beverly Hosp., Inc. (2000) 79 Cal.App.4th 986, 989-990; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)  A court may take judicial notice of something even if it negates an express allegation of the pleading.  (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549, disapproved on other grounds by Black Sky Capital, LLC v. Cobb (2019) 7 Cal. 5th 156.)
 
Plaintiff’s complaint alleges sufficient facts to establish a cause of action for common counts—that Defendant owes Plaintiff $10,596.39 on an open book account.  Defendant’s answer filed on May 2, 2019, denied the allegations.
 
On July 31, 2020, this Court entered an Order Deeming Admissions Admitted granting Plaintiff’s motion and determining the genuineness of the documents and admission of facts set forth in Plaintiff’s request for admissions.  The Court grants Plaintiff’s Request for Judicial Notice and will take judicial notice of Plaintiff’s Request for Admissions and the Court’s order granting Plaintiff’s Motion to Deem Admissions Admitted.  The admissions negate the express allegations in Defendant’s answer.  Therefore, the complaint states facts sufficient to constitute a cause of action against Defendant and the answer does not state facts sufficient to constitute a defense to the complaint.  Accordingly, the motion is granted.
 
 
3.         MCV-252527, Looney v. Kolev
 
On June 19, 2020, Plaintiff Gary E. Looney, dba Collectronics of California (“Judgment Creditor”) obtained a judgment against Defendant Hristo N. Kolev aka Hristo Kiolev (“Defendant”) in the amount of $19,186.75 (the “Judgment”).  This matter is on calendar for Judgment Creditor’s motion to compel Defendant to respond to post-judgment requests for production of documents (“RPODs”) and post-judgment form interrogatories (“FIs”) and for monetary sanctions.  The Motion is GRANTED, except that as a pro per, Judgment Creditor may only recover the $90 in costs incurred as sanctions.
 
Judgment Creditor sufficiently demonstrates that he served the FIs and RPODs on Defendant on July 7, 2020, and that despite making efforts to meet and confer, Defendant has failed to provide any responses.  (Looney Decl. ¶¶ 1-4 & Exs. A-C.)  Judgment Creditor also establishes that the discovery at issue does not violate any of the requirements which would justify a failure to respond under Code of Civil Procedure section 708.020(b) (for interrogatories) or Code of Civil Procedure section 708.030(b) (for requests for production).  (Looney Decl. ¶ 5.)  Judgment Creditor is therefore entitled to an order compelling responses.
 
With regard to sanctions, Code of Civil Procedure section 2030.290(c) (relating to interrogatories) and Code of Civil Procedure section 2031.300(c) (relating to requests for production of documents) each provide that a monetary sanction “shall” be imposed against the party losing a motion to compel unless the court finds “substantial justification” for that party’s position or other circumstances making sanctions “unjust.”  Monetary sanctions are to reimburse a party for “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of” conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030(a).)
 
Judgment Creditor seeks $300 in sanctions (Notice of Motion at 2:8) plus $90 for the costs to file the Motion.  In support of this request, Judgment Creditor’s declaration states that the “hourly-billing rate for time expended by myself is $300.00.  I have expended (1) hour in preparing the foregoing motion.”  (Looney Decl. ¶6.)  But Judgment Creditor is representing himself in pro per.  As such, he is not entitled to hourly fees as sanctions.  (See, e.g. Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1179; Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1021.) However, Judgment Creditor’s declaration states that he incurred costs in the amount of $90 to bring the Motion.  (Looney Decl. ¶6.)  As such, the request for monetary sanctions is granted, but reduced to $90.
 
Based on the foregoing, the Motion is GRANTED.  Within ten (10) days of notice of entry of the order granting this Motion, Defendant shall: 1) serve full and complete verified responses, without objections to the special interrogatories and requests for production; and 2) pay monetary sanctions to Judgment Creditor in the total amount of $90.
 
Judgment Creditor shall submit a written order to the Court consistent with this tentative ruling and in compliance with California Rules of Court, rule 3.1312(a) and (b).
 
 
4.         SCV-264540, C.F. v. Martinez
 
This matter is on calendar for the motion of Defendant Alternative Family Services, Inc. (“AFS”) for a motion (1) compelling Plaintiffs C.F., E.F., and S.F., by and through their Guardian and Guardian ad Litem Solomon Farr (collectively “Plaintiffs”) to produce all of the categories of documents they said they would produce in their supplemental written responses to AFS’s Requests for Production of Documents, Set One, (“RFPDs”) and (2) imposing monetary sanctions in the amount of $2,368.00 against Plaintiffs’ counsel of record, Abbey, Weitzenberg, Warren & Emery, P.C.  The motion is GRANTED as to Medi-Cal records recently obtained by the Plaintiffs. Sanctions are DENIED.  The Court hereby orders the parties to meet and confer in order to provide a stipulation for the Court’s signature regarding the Plaintiffs’ psychological records.
 
On December 12, 2019, AFS propounded written discovery to Plaintiffs including RFPDs. (Declaration of Peter Finn [“Finn decl.”] Exhibit 1-3.)  Except as to request number 5, to which Plaintiffs stated they would obtain a photo of Plaintiffs’ insurance cards, Plaintiffs either responded that they did not have any responsive documents in their possession, custody, or control; stated “not applicable” to the request; or objected.  (Finn decl., Exhibits 4-6.)  The initial verification was signed but did not state the day in January 2020 that it was signed.  (Ibid.)  No documents were produced with Plaintiff’s initial responses.  (Id. at Exhibits 4-6, Finn decl., ¶8.)
 
After meet and confer efforts, on July 2, 2020, Plaintiffs served supplemental responses which changed some responses to state that Plaintiffs were producing responsive documents.  (Finn decl., ¶12, Exhibits 7-12.)  Plaintiffs’ RFPDs stated that Plaintiffs were producing “herewith those responsive documents in [their] possession, custody, or control” to RFPD Numbers 1, 9, and 11. (Finn decl., ¶16, Exhibits 10-12.)  The supplemental response noted that Plaintiff is aware that there is a SRPD interrogation video regarding AFS’s employee but stated that “Plaintiff does not have these and cannot access these at this time due to their protected nature.”  (Ibid.)  Additionally, Plaintiffs responded that they would produce responsive documents in their possession, custody, or control as to any and all writings identified in their responses to AFS’ Special Interrogatories Nos. 19, 23, 27, 42, 45, 48, 52, 56, 60, 64, 68, 72, 76, 80, 84, 88, 93, 97, 100, and 103 (see supplemental responses to RFPDs Nos. 26-45).  (Finn decl., ¶17 and Exhibits 10-12.)  The supplemental response also stated that Plaintiff would not reproduce all the documents identified therewith as certain of the documents had already been produced by AFS.  (Ibid.)  Plaintiffs further identified documents and reports that were not available to the parties at that time.  (Ibid.)  The supplemental responses were not verified.  (Ibid.)  On August 21, 2020, Plaintiffs served their verifications for their supplemental responses.  (Finn decl., Exhibit 14.)  Plaintiffs’ counsel did not respond to further requests to meet and confer.  (Finn decl., ¶¶20-21.)  AFS’s emails and phone call regarding the documents to be produced went unanswered.  (Finn decl., ¶¶20, 21, Exhibit 15.)  The only responsive document Plaintiffs produced was a preliminary hearing transcript.  (Id. at ¶22.)
 
In their opposition, Plaintiffs’ counsel states that they have produced all documents in their possession, custody, and control.  Plaintiffs did not (at the time they responded to the discovery requests) and do not (through the filing of opposition) have possession of the Plaintiffs’ psychological records from Jennifer Morehouse, LMFT, or Interfaith Shelters.  (Declaration of Scott R. Montgomery [“Montgomery decl.”] ¶¶2, 4.)  Plaintiffs’ counsel states that his staff is working diligently to make further contact with the two above-listed providers to see if a motion will be needed to obtain the records, via subpoena, from them or if they will respond to the overdue subpoenas.  (Ibid.)  Plaintiffs now have the subpoenaed Medi-Cal records. (Id. at ¶3.)
 
If a party to whom a demand for inspection has been directed responds that he or she will comply with the demand, the responding party must represent “that all documents or things in the demand category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”  (Code Civ. Proc., § 2031.220.)  The documents “shall” be produced on the date specified in the demand.  (Code Civ. Proc., § 2031.280(b).)
 
“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.”  (Code Civ. Proc., § 2031.320(a).)
 
Here, Plaintiffs have stated that they did not have documents in their possession, custody, or control; however, they acknowledged in their supplemental responses that certain documents existed but that they did not have immediate access to them.  These documents included “Redwood Children’s Center Forensic Interviews.”  In Plaintiffs’ opposition, they state that they are attempting to obtain Plaintiffs’ psychological records from Jennifer Morehouse, LMFT, and Interfaith Shelters.  “Minor psychological records have detailed protections and providers are often unwilling to provide them without Court order and/or motion.  These records were requested, via subpoena by AFS and Plaintiffs, in April 2020 and have yet to be provided.  It would appear a motion might ultimately be needed to get a Court order directing production of these records from the providers.”  (Opposition, 2:19-23.)  Plaintiffs state that they now have the billing records from Medi-Cal.  Accordingly, Plaintiffs are hereby ordered to provide the billing records from Medi-Cal to AFS.
 
In their Reply, AFS’s counsel states that he sent authorizations to Plaintiffs’ counsel for the release of Plaintiffs’ psychological records from Interfaith Shelter Network that needed to be signed by Plaintiffs’ guardian.  (Reply decl., ¶6.)  Plaintiffs’ counsel failed to respond to follow-up emails. (Id. at ¶8.)  The Court notes that Plaintiffs have not had a chance to respond to this issue.  However, the Court will require Plaintiffs’ counsel to have the authorization forms filled out and returned to AFS by February 5, 2021, at 5:00 p.m.
 
The Court further orders the parties to meet and confer regarding stipulating to a court order for the release of documents requested from Jennifer Morehouse, LMFT.
 
“Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc., § 2031.320(b).)
 
Under the circumstances of this case, sanctions are unjust.  The documents at issue are sensitive in nature and both parties have attempted to access them.  Such access is likely to take longer due to current and past shelter-in-place orders.  Plaintiffs have now obtained billing records from Medi-Cal and will turn those over.  Accordingly, sanctions are denied.
 
AFS’s counsel shall submit a written order to the Court consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.
 
 
5.         SCV-265679, Tourady v. Kemerait
 
This matter is on calendar for the demurrer of Defendant California State Water Resources Control Board (“Water Board”) to the third, fourth, sixth, and seventh causes of action in Plaintiffs’ First Amended Complaint on the ground that each fails to state facts sufficient to constitute a cause of action (Code Civ. Proc., § 430.10(e)); and, as to the third, fourth, and sixth cause of action, on the ground that the court has no jurisdiction of the subject (Code Civ. Proc., § 430.10(a).  The demurrers to the first, fourth, and sixth causes of action are OVERRULED. The demurrer to the seventh cause of action is SUSTAINED without leave to amend.  Defendant is to file an answer to the First Amended Complaint within 10 days of notice of entry of this order.
 
This matter was referred to the Demurrer Facilitator Program and assigned to Demurrer Facilitator D. Douglas Shureen.  Mr. Shureen filed his report on January 13, 2021.  He states that he held extended video conferences with the parties in an attempt to resolve the disputes but was ultimately unsuccessful.  The Court thanks Mr. Shureen for his time and service as a Demurrer Facilitator.
 
On September 14, 2020, Plaintiffs William Tourady, Ginger Tourady (together “Touradys”), Kelly Jennette (“Jennette”), and Carol J. Groves, Trustee of the Groves Family Trust (“Groves”), (altogether “Plaintiffs”) filed their First Amended Complaint to Quiet Title Prescriptive Easement, Declaratory Relief and Damages for Trespass Mandamus; and Inverse Condemnation (“FAC”) against defendants Katherine A. Kemerait and Double K Ranch LLC (“Kemerait”), the Water Board, Richard Davis, William Lowell, and any and all persons unknown claiming any legal or equitable right, title, estate, lien or interest in the real property and interests in the real property and interests described in the pleading. The FAC contains seven causes of action, four of which are alleged against the Water Board: the third cause of action for declaratory relief; the fourth cause of action for declaratory relief; the sixth cause of action for Mandamus; and, the seventh cause of action for inverse condemnation.
 
The dispute arises out of what Plaintiffs call the “Rodgers Ranch Water Right.”  The Rodgers Ranch Water Right stems from a spring located on property owned by Plaintiff Groves.  For over100 years, the spring has been used to service property now owned by Plaintiff Groves and, through a water pipe traversing defendant Kemerait’s property, to service the property now owned by Plaintiffs Touradys and Jennette.
 
The FAC alleges that on August 24, 2018, Kemerait filed a Registration for Small Domestic Use Appropriation bearing Registration Number D032787 (“the Registration”) with the Water Board Division of Water rights fraudulently claiming that she held a recorded easement burdening the Groves’ property to “restore” the spring, which was accepted by the Water Board on September 28, 2018.  (FAC ¶¶14, 15.)  On February 21, 2019, Plaintiff Groves wrote to the Water Board requesting remedial action.  (Id. at ¶15.)  The Water Board responded that it could not provide an estimate of when it would be able to respond.  (Ibid.)  Thereafter, on December 2, 2019, the Water Board notified Plaintiffs that their use of the water from the Rodgers Ranch Water Right has created a threat to health and safety by threatening domestic water supply to Kemerait’s property.  (Ibid) Plaintiffs allege that Kemerait only first started using water from the spring in September or October of 2019 when she tapped into the waterline serving the Touradys’ and Jennette’s properties. (Ibid.)
 
I.          Treating allegations as a “nullity”
 
Any allegations that are contrary to the law or to a fact of which judicial notice may be taken will be treated as a nullity.  (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1102.)
 
The allegations against the Water Board in the FAC allege that it accepted the Registration without notice to Plaintiffs and has thereafter not provided a timeline for its response to Plaintiffs’ complaint that the Registration is fraudulent; instead, the Water Board has threated Plaintiffs for use of their water rights.  (FAC ¶15.)  Plaintiffs further assert that contrary to the Water Board’s assertions, the spring is not subject to the its jurisdiction, and that the Water Board claims that the Kemerait’s water rights are superior to Plaintiffs and allows her to enter Defendants’ lands.  (Id. at ¶¶26, 27, 32.)  The FAC asserts that the Water Board has learned that the Registration is fraudulent but has declined to act to revoke it.  (Id. at ¶¶48-74.)  The FAC also alleges that the Water Board participated in usurping Plaintiffs’ water rights.  (Id. at ¶78.)
 
The Water Board requests judicial notice of the Registration certificate, D032787/Certificate D1138 (“the Certificate”), as an official act pursuant to Evidence Code section 452(c).  The Certificate nullifies the Plaintiffs’ allegations that the Water Board has elevated Kemerait’s rights above Plaintiffs’ and that it gives Kemerait the right to enter onto Defendants’ lands.  The Certificate specifically states that diversion of water is subject to prior rights and it requires Kemerait to obtain authorization to enter onto property owned by another.  (RJN, Exhibit 1, ¶¶12-14.) 
 
Plaintiffs argue that their allegation does not constitute a competition between rights as to priority-in-time because they have an express recorded easement and Kemerait does not.  In other words, it appears Plaintiffs are arguing that Kemerait has no rights to the subject spring so this cannot be a contest over rights.  However, Kemerait asserts a right to the water based upon the Certificate.  Plaintiffs assert their right stems from use beginning in 1897.  Thus, this is a priority-in-time contest.
 
Plaintiffs also argue that the FAC alleges that Kemerait has relied on the Certificate to divert water.  Regardless, the Certificate itself says such right is subject to prior rights such as the Plaintiffs’.
 
The Certificate establishes the nullity of any and all allegations in the FAC that state that the Water Board has claimed Kemerait’s water rights to the subject spring are superior to the Plaintiffs’. It also establishes the nullity of any and all claims in the FAC that the Water Board supports Kemerait trespassing on others’ lands in effectuating her right to water from the subject spring.
 
II.        Third and Fourth Causes of Action for Declaratory Relief
 
Code of Civil Procedure section 1060 provides: “Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time.  The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment.  The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”  If the facts as alleged in the complaint reveal an actual controversy exists between the parties, the complaint is legally sufficient for declaratory relief.  (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722.)
 
Plaintiffs’ third cause of action for declaratory relief alleges an actual controversy has arisen and exists between Plaintiffs and the Water Board concerning their respective rights as they relate to the Rodgers Ranch Water Right.  (FAC ¶25.)  Plaintiffs contend that that the Rodgers Ranch Water Right is either a diversion from a “spring” or a pre-1914 diversion, either of which are exempt from regulation by the Water Board.  (FAC ¶26.)  Plaintiffs allege that the Registration is void or voidable and revocable.  (Ibid.)  They allege that the Water Board asserts that the Rodgers Ranch Water Rights comes under its jurisdiction and that Plaintiffs must obtain a permit to divert water from the spring.  (FAC ¶¶26, 27.)
 
This is not a hypothetical disagreement; it is definite and concrete, touching the legal relations of parties having adverse legal interests.  Specifically, the issues are whether the Water Board has jurisdiction over the subject spring located on Grovers’ land and whether the Touradys and Jennette must obtain a permit from the Water Board to divert water from the spring.
 
Plaintiffs’ fourth cause of action alleges that, Kemerait has diverted water from the Rodgers Ranch Water Right and that, contrary to her claims, Kemerait has no easement to utilize the Plaintiffs’ property or the water from the spring.  (FAC ¶¶31, 32.)  Ignoring the void allegations that contradict the Certificate, there are no allegations against the Water Board that would support a cause of action for declaratory relief.
 
However, when considering the facts alleged in the FAC which are incorporated into the cause of action, it appears Plaintiffs are asserting that the Water Board has the authority to prosecute Plaintiffs for use of their Rodgers Ranch Water Rights and that the Water Board has threatened to do so.  The Water Board has “indicated to Plaintiffs that Plaintiffs’ use of the water from the Rodgers Water Right has created a threat to health and safety by threatening domestic water supply” to Kemerait’s property.  (FAC 5:8-10.)  Determination of this allegation would appear to be hypothetical as the Water Board has not taken any action on its “threat.”  A judgment must decree, not suggest, what the parties may or may not do.  (Alameda County Land Use Assn., supra, 38 Cal.App.4th at pg. 1722.)  Here, any resulting judgment would only suggest what the parties may or may not do.
 
Alternatively, or in addition to this, Plaintiffs appear to be alleging that the Water Board’s acceptance of the Registration from Kemerait goes against rules governing it because it learned subsequent to the Registration that Kemerait based the Registration on fraudulent information or that the Water Board was required to act to invalidate the Registration.  (See FAC 5:4-7.)  This allegation is more definite.  A potential judgment could decree that the Water Board is required to invalidate the Registration.  And, while Plaintiffs have not specified the authority under which the Water Board is required to act, the Water Board has not provided authority that Plaintiffs must plead the rules or laws requiring the Water Board’s action.  A complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.”  (Code Civ. Proc., § 425.10(a)(1) [italics added].)
 
a.         Statute in Controversy
 
The Water Board argues that Plaintiffs have not cited to any specific statute in controversy.  It cites Alameda County Land Use Assn., supra, which states that declaratory relief is appropriate when the parties are in fundamental disagreement over the construction of particular legislation, or they dispute whether a public entity has engaged in conduct or established policies in violation of applicable law.  (Alameda County Land Use Assn., supra, 38 Cal.App.4th at pg. 1723.)  Alameda County Land Use Assn. does not limit declaratory relief to these types of disputes.
 
b.         Jurisdiction/Mandamus as Exclusive Remedy
 
The Water Board next argues that this Court does not have jurisdiction over the third and fourth causes of action because the exclusive remedy against it is mandamus. However, the cases cited only state that declaratory relief is not available if the remedy is administrative mandamus. Mandamus proceedings are brought under either Code of Civil Procedure section 1094.5 or 1085.  The FAC does not cite either statute.  Under Code of Civil Procedure section 1094.5, a writ of administrative mandamus is the exclusive remedy for challenging final action by the State Water Board.  (Stanford Vina Ranch Irrigation Company v. State (2020) 50 Cal.App.5th 976, 997; Wat. Code, §§ 1120, 1126.)  However, declaratory relief is an appropriate remedy, for example, in which to seek a declaration that a specific statute is facially unconstitutional.  (State of California v. Superior Court (1974) 12 Cal.3d 237, 574.) 
 
Pursuant to Code of Civil Procedure section 1085, an action for ordinary mandamus may be brought for a failure to carry out a mandatory ministerial duty set forth by statute, or to take specific action if a certain set of circumstances is presented.  (See, e.g., California Trout, Inc. v. State Water Board (1990) 218 Cal.App.3d 187, 201-202.)  None of the cases cited by the Water Board state that traditional mandamus pursuant to Code of Civil Procedure section 1085 is an exclusive remedy.
 
As the FAC does not allege any administrative proceeding, it appears these causes of action are brought pursuant to Code of Civil Procedure section 1085.  The Water Board has not met its burden to establish traditional mandamus is Plaintiffs’ exclusive remedy.
 
The Water Board has failed to meet its burden to establish that Plaintiffs third and fourth causes of action fail to allege sufficient facts to state a cause of action or that this Court does not have jurisdiction of the subject.  The demurrers are OVERRULED. 
 
III.       Sixth Cause of Action – Mandamus
 
In their sixth cause of action Plaintiffs’ seek a court order revoking, or requiring that the Water Board revoke, the Registration and Certificate which gave Kemerait authority to divert Plaintiffs’ Rodger Ranch Water Right. (FAC ¶¶40, 43, 45, 74.)  Plaintiffs argue that the Water Board has a duty to revoke the Registration pursuant to Water Code section 1228.4(b)(2).  (FAC ¶68.)  Plaintiffs, in part, argue that the Water Board lacks jurisdiction over the matter as it relates to a spring—not a stream.  (FAC ¶¶48, 49, 53-55, 58, 61.)  While it appears that this cause of action also relies upon allegations that the Water Board escalated their concern over the “public health and safety” hazard caused by Plaintiffs cutting off water to flow to Kemerait’s property (FAC ¶65), the only relief requested pursuant to this cause of action is that the Court require the Registration to be revoked (FAC ¶74).
 
California Water Code section 1228.4(a) provides that any completed registration of water use gives to the registrant a priority of right as of the date of completed registration to take and use the amount of water ultimately applied with due diligence to reasonable and beneficial use thereunder, which amount shall not exceed the amount of proposed use as shown on the registration form. That right shall remain in effect until the “right is revoked because the registrant knowingly made any false statement, or knowingly concealed any material fact, in the registration.”  (Wat. Code, § 1228.4(b)(2).)
 
a.         Challenge to the Issuance of the Registration-Statute of Limitations
 
The Water Board argues that any challenge to the issuance of the Registration is barred by the 30-day statute of limitations related to a “final action.”
 
Water Code section 1126(b) provides: “Any party aggrieved by any decision or order may, not later than 30 days from the date of final action by the board, file a petition for a writ of mandate for review of the decision or order.  Except in cases where the decision or order is issued under authority delegated to an officer or employee of the board, reconsideration before the board is not an administrative remedy that is required to be exhausted before filing a petition for writ of mandate.  The time for filing the petition for writ of mandate and the time for filing an action or proceeding in which the board is a respondent under Section 21167 of the Public Resources Code shall be extended for any person who seeks reconsideration by the board pursuant to this article.  The amendment of this subdivision made during the 2001 portion of the 2001-02 Regular Session does not constitute a change in, but is declaratory of, existing law.”
 
“This chapter applies to any decision or order issued under this part or Section 275, Part 2 (commencing with Section 1200), Part 2 (commencing with Section 10500) of Division 6, Part 2.55 (commencing with Section 10608) of Division 6, or Chapter 11 (commencing with Section 10735) of Part 2.74 of Division 6, Article 7 (commencing with Section 13550) of Chapter 7 of Division 7, or the public trust doctrine.” (Wat. Code, § 1120.)
 
The Registration was accepted pursuant to Water Code section 1228, et seq. under Part 2 of the water code.
 
The Water Board has not cited any authority interpreting “final action” as used in section 1126(b). However, it asserts that the “final action” occurred when it accepted the Registration on September 28, 2018—more than 30 days prior to the date Plaintiffs initiated this action.  If the Court accepts this interpretation, Plaintiffs will be out of court before they even learned of the Registration which would not appear to comport with their due process rights.  Regardless, part of Plaintiffs’ complaint is that the Water Board did not have jurisdiction to issue the Registration because it related to a “spring.”  Thus, the challenge is not only to the content of the decision or order but to the ability to make the decision or order.
 
Additionally, Plaintiffs’ argue that the challenge is not to the acceptance of the Registration but to the Water Board’s failure to revoke the Certificate after it learned it was procured by fraud.  Neither party has provided any statute of limitations for the Water Board’s determination of fraud in the procurement of a small domestic water appropriate certificate.
 
b.         Court’s ability to review the Water Board’s prosecutorial discretion
 
The Water Board argues that nothing in Water Code section 1228.4 establishes a ministerial duty in the State Water Board to revoke the Registration. It cites case law related to “prosecutorial discretion”; however, the authority cited by the Water Board does not establish that revoking a certificate granted under Water Code section 1228.4(b)(2) constitutes “prosecutorial discretion.”[1]
           
A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his or her own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists. (Transdyn/Cresci v. City and County of San Francisco (1999) 72 Cal.App.4th 746, 752.)  Discretion, on the other hand, is the power conferred on public functionaries to act officially according to the dictates of their own judgment.  (Ibid.)
 
“An ordinary mandamus action under Code of Civil Procedure section 1085 permits judicial review of ministerial duties as well as quasi-legislative acts of public agencies.  [Citation.]  Mandamus lies to compel the performance of a clear, present, and ministerial duty where the petitioner has a beneficial right to performance of that duty.  [Citation.]  Mandamus may issue to correct the exercise of discretionary legislative power, but only if the action taken is so palpably unreasonable and arbitrary as to show an abuse of discretion as a matter of law.”  (Schwartz v. Poizner (2010) 187 Cal.App.4th 592, 596, citing, Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1264-1265; Ghilotti Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 904.)  Where a statute or ordinance clearly defines the specific duties or course of conduct that a governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion.  (Schwartz, supra, at 597.)  Nothing in the provisions cited by the Schwartz plaintiff required the defendant to enforce plaintiff’s rights in any particular manner.  (Ibid.)  The specific statutes at issue in that case gave the defendant discretion to bring enforcement actions “when warranted.”
 
Traditional mandate will lie to correct abuses of discretion. In such case a party seeking review under traditional mandamus must show the public official or agency invested with discretion acted arbitrarily, capriciously, fraudulently, or without due regard for his rights, and that the action prejudiced him.  (Schwartz, supra, 187 Cal. App. 4th at pg. 598 [citing cases].)  “Although traditional mandamus will not lie to control the discretion of a public official or agency, that is, to force the exercise of discretion in a particular manner, ‘ “... [it] will lie to correct abuses of discretion, and will lie to force a particular action by the ... officer, when the law clearly establishes the petitioner's right to such action.”  (Ibid.)
 
“The authority of the court is limited to determining whether the decision of the agency was arbitrary, capricious, entirely lacking in evidentiary support, or unlawfully or procedurally unfair.’ [Citation.] ... In applying this deferential test, a court ‘ “must ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute.” ’  [Citations.]  Courts exercise limited review ‘out of deference to the separation of powers between the Legislature and the judiciary, to the legislative delegation of administrative authority to the agency, and to the presumed expertise of the agency within its scope of authority.’  [Citations.]  The court does not ‘weigh the evidence adduced before the administrative agency or substitute its judgment for that of the agency, for to do so would frustrate legislative mandate.’”  (Schwartz, supra, at pg. 598.)
 
However, none of the cases cited relate to water law.  Water Code section 1126(a) provides: “It is the intent of the Legislature that all issues relating to state water law decided by the board be reviewed in state courts, if a party seeks judicial review. It is further the intent of the Legislature that the courts assert jurisdiction and exercise discretion to fashion appropriate remedies pursuant to Section 389 [compulsory joinder] of the Code of Civil Procedure to facilitate the resolution of state water rights issues in state courts.”  State Superior Courts have concurrent jurisdiction
 
In California Assn. of Sanitation Agencies v. State Water Resources Control Bd. (2012) 208 Cal. App. 4th 1438, 1457-1463, the court ruled that the California Water Resources Control Board could be compelled in a traditional mandamus action to initiate changes to a basin plan where the plan's designation of the existing beneficial uses of a particular stream were manifestly inaccurate.  The court could not prescribe how the Board should exercise its discretion in changing the basin plan, but could find particular amendments (or the refusal to adopt specific amendments) an abuse of discretion.  Mandamus relief is also available to “correct those acts and decisions of administrative agencies which are in violation of law.  (Transdyn/Cresci, supra, 72 Cal.App.4th at pg. 752.)
 
“[N]otwithstanding its power to protect the public interest, the [Water] Board plays a limited role in resolving disputes and enforcing rights of water rights holders, a task mainly left to the courts.  Because water rights possess indicia of property rights, water rights holders are entitled to judicial protection against infringement, e.g., actions for quiet title, nuisance, wrongful diversion or inverse condemnation.”  (United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 104.)
 
In reviewing the law cited, the Water Board has not met its burden to establish that this Court does not have the ability to review the legitimacy of the Registration and/or Certificate.
 
c.         Ripeness
 
The Water Board also argues that its enforcement actions are not ripe for review because there has been no final administrative determination.  However, neither of the parties have set forth any administrative process required for the Plaintiffs’ claims to be heard and adjudicated.  If the Water Board never acts, its actions would never become ripe for review.  The Water Board cites cases related to Code of Civil Procedure section 1094.5.  Section 1094.5 provides for review of state and local adjudicatory decisions that result from legally required evidentiary hearings when no other method of review is prescribed by statute.  This mandamus action is brought pursuant to Code of Civil Procedure section 1085, not administrative mandamus under Code of Civil Procedure section 1094.5.  Moreover, as discussed above, water rights holders are entitled to judicial protection against infringement.
 
d.         Concurrent jurisdiction
 
The Water Board also argues that it need not be involved in this case as this Court has the authority to determine the parties’ rights to the properties in dispute.  The Water Board has not provided authority that because this Court has jurisdiction to hear the matter that the Water Board is not a necessary or appropriate party to the action.
 
The Water Board has failed to meet its burden to establish that Plaintiffs’ sixth cause of action fails to allege sufficient facts to state a cause of action or that this Court does not have jurisdiction of the subject.  The demurrers are OVERRULED. 
 
IV.       Seventh Cause of Action for Inverse Condemnation
 
“To state a cause of action for inverse condemnation, the property owner must show there was an invasion or appropriation (a ‘taking’ or ‘damaging’) of some valuable property right which the property owner possesses by a public entity and the invasion or appropriation directly and specially affected the property owner to his injury.  (City of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, 221.)  The plaintiff must allege the defendant substantially participated in the planning, approval, construction, or operation of a public project or improvement which proximately caused injury to plaintiff's property.  (Wildensten v. East Bay Regional Park Dist. (1991) 231 Cal.App.3d 976, 979-980.)  “In inverse condemnation, the government is obligated to pay for property taken or damaged for “ ‘public use’ ” or damaged in the construction of “public improvements.”  [Citation.]  A “ ‘public use’ ” is “ ‘ “a use which concerns the whole community as distinguished from a particular individual or a particular number of individuals; public usefulness, utility or advantage; or what is productive of general benefit; a use by or for the government, the general public or some portion of it.”  (Ibid. [citing cases].)
 
The FAC alleges the legal conclusion that the Water Board participated in the planning and approval of Kemerait’s “physical occupation and permanent invasion” of the Defendant’s property and pipeline.  (FAC ¶78.)  Plaintiffs allege that Defendants have acknowledged in verified pleadings that their project was a public project.  (FAC ¶79.)  The FAC alleges that the Water Board threated criminal prosecution against Plaintiffs’ use of their own water supply because they were tampering with a “public water supply” (FAC 10:8) and that the Water Board escalated Kemerait’s complaint because disconnection of the tap constituted a “public health and safety hazard” (FAC 16:23-24).  Reference to the word “public” does not convert the Water Board’s issuance of a certificate to divert and use water to an individual into a “public project or improvement” which benefits the public at large.  The Water Board merely granted a certificate to a private individual on private land. It did not plan, approve, construct, or operate any project by or for the use of the government or the general public.
 
The dispute at issue in this case is not a public project or improvement.  Accordingly, there can be no taking.  The demurrer to the seventh cause of action for inverse condemnation is sustained without leave to amend.
 
Plaintiffs’ counsel shall submit a written order to the Court consistent with this ruling and in compliance with California Rules of Court, rule 3.1312.
 
 
6.         SCV-266522, Integrated Community Development, LLC v. Balatti
 
This matter is on calendar for the petition of Plaintiffs Integrated Community Development and 2905 Santa Rosa Ave, L.P. (together “Plaintiffs” or “Buyers”) to confirm the Partial Final Award issued by the Hon. Robert L. Dondero (Ret.) of JAMS (“Arbitrator”). 
 
The Court has been advised the parties are in settlement discussions. Therefore, the hearing on this matter is CONTINUED to Tuesday, January 26, 2021, at 9:00 a.m. in Courtroom 16
 
If counsel advises the Court by 1:45 p.m. on Monday, January 25, 2021 that the matter has been resolved, the hearing on the petition will be dropped from calendar. 
 
If the Court does not receive confirmation by 1:45 p.m. on January 25 that the matter has been resolved, the hearing on the petition will be held on January 26 at 9:00 a.m. The Court will provide a tentative ruling by 2:00 p.m. on January 25. Any requests for oral argument must be made no later than 4:00 p.m. on January 25. 
 
 
 
 
 



[1] People v. Superior Court (Lyons Buick-Opel-GMC, Inc.) (1977) 70 Cal.App.3d 341 involved the State Attorney General’s complaint against a corporation for violations of the Business and Professions Code. The defendant in that case alleged it was being subjected to selective enforcement of the law. The court noted that prosecutorial discretion permits the choice among possible defendants which to prosecute, whether to prosecute, and in what order to prosecute. (Id. at pg. 344.)
 
Dix v. Superior Court (1991) 53 Cal.3d 442 involved the District Attorney of Shasta County and its prosecution of a defendant for attempted murder.
 
Heckler v. Chaney (1985) 470 U.S. 821 involved a question regarding whether the decision of an administrative agency to exercise its “discretion” not to undertake certain enforcement actions is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 501 et seq. (APA). Defendants were death row inmates objecting that the use of certain lethal injection drugs violated the Federal Food, Drug, and Cosmetic Act and requested that the FDA take various enforcement actions to prevent these violations. That case involved the construction of the APA and the FDCA, which are not at issue here. The Heckler court noted that the agency’s decision not to enforce was only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers. (Id. at pg. 832-833.) Moreover, unlike in this case, no colorable claim was made in in Heckler that the agency's refusal to institute proceedings violated any constitutional rights.
 
In Schwartz v. Poizner (2010) 187 Cal.App.4th 592, plaintiffs sought to compel the Commissioner of the California Department of Insurance to seek additional remedies against insurers with whom the Commissioner had entered into a settlement agreement. The appellate court upheld the trial court’s determination that Commissioner did not have a ministerial duty to seek the additional relief and abused its discretion in failing to seek that relief.
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