GW2/sf3 12/4/2017

FILED
12-04-17
03:13 PM
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Application of California-American Water

Company (U210W) for Approval of the
Monterey Peninsula Water Supply Project Application 12-04-019
and Authorization to Recover All Present
and Future Costs in Rates.

ADMINISTRATIVE LAW JUDGE’S RULING

DENYING WATER PLUS THIRD MOTION TO DISMISS

SUMMARY
On June 1, 2017, Water Plus filed a “Motion to Dismiss the Proceeding on
the Monterey Peninsula Water Supply Project Because of Prohibition of
Groundwater Exportation and Data Tampering in Model Evaluation.” The
motion is denied because (1) it does not state the law supporting the requested
ruling; (2) triable issues of material fact remain; and (3) even interpreting the
facts in the manner most favorable to Water Plus, Water Plus would not be
entitled to judgment as a matter of law.

1. BACKGROUND
The current motion is the third such motion filed by Water Plus. On
October 1, 2015, Water Plus filed its first motion to dismiss. Water Plus moved
for dismissal based on alleged data tampering, along with the project being
extremely costly and risky. By Ruling filed on October 29, 2015, the motion was
denied because (1) the motion did not state the law supporting the motion and
the requested ruling; (2) the papers filed by the parties disclosed, on their face,
that triable issues of material fact remained; and (3) even construing the facts in

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the manner most favorable to Water Plus, Water Plus was not entitled to
judgment as a matter of law.
On March 30, 2016, Water Plus filed its second motion to dismiss. Water
Plus moved for dismissal based on fraud; data tampering; violation of water
rights law; violation of the Monterey County Water Resources Agency Act
(Agency Act); and questionable reliability, cost, and safety of the groundwater
replenishment project. By Ruling filed on August 30, 2016, the motion was
denied because (1) the motion did not state the law supporting the requested
ruling; (2) triable issues of material fact remained; and (3) even construing the
facts in the manner most favorable to Water Plus, Water Plus was not entitled to
judgment as a matter of law.
On June 1, 2017, Water Plus filed its third motion to dismiss. Water Plus
moves for dismissal on the basis of (a) insufficiency and corruption of project
evaluation data, and (b) illegality and faulty basis of the return water proposal.
On June 15, 2017, California-American Water Company (Applicant)
responded. Applicant asserts that Water Plus in its third motion again fails to
(1) state the law supporting the motion and requested ruling, and (2) establish
the existence of undisputed material facts and statements of law.
Also on June 15, 2017, Marina Coast Water District (MCWD) responded.
MCWD recommends that the motion be evaluated when the record is complete,
including issuance of the final Environmental Impact Report (EIR). MCWD
contends that the Commission may ultimately dismiss this application due to
Applicant’s failure to meet its burden of demonstrating project need. If not,
however, MCWD then proposes that the Commission evaluate the Water Plus
motion on its merits with a fully-developed record.

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2. DISCUSSION
Water Plus again has not shown that it is entitled to the result it seeks.
This was fully explained in the two previous Rulings and is repeated below. The
limited new information presented by Water Plus does not justify a different
outcome.
Among other things, a motion “must concisely state the…law supporting
the motion.” (Rule 11.1(d) of the Commission’s Rules of Practice and Procedure.)
The motion does not state the supporting law.
That notwithstanding, the Commission has also said that a motion to
dismiss under Rule 11.1(d) is similar to a summary judgment motion in civil
court. (Campbell v. So. Cal. Edison Co., Decision (D.) 15-07-009, mimeo at 6.)
The "purpose of both types of motions is to permit determination of whether
there are any triable issues of material fact before proceeding to trial, thus
promoting and protecting efficiency in the administration of cases by eliminating
needless litigation." (Id.) A motion to dismiss "requires the Commission to
determine whether the party bringing the motion prevails solely on undisputed
facts and matters of law." (Id., citing Raw Bandwidth Communications, Inc. v.
SBC California, Inc., D.04-05-006, mimeo at 8.) Water Plus fails to demonstrate
that its current motion prevails solely on undisputed facts and law.
For example, Water Plus largely restates the position from its first two
motions regarding the insufficiency and corruption of project evaluation data.
The first two Rulings each found that triable issues of material fact remained. In
its response to the third motion, Applicant convincingly shows that Water Plus’s
allegations regarding the data are still not undisputed.
Water Plus states that the current draft EIR corrects data with respect to
two problems pointed out by Water Plus but that:

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“…problems remain because the added Dune Sand data are

pitifully inadequate and terribly fit by the model and because
the consultant mistook the anomalies for an innocent quirk in
the data instead of evidence of substantial data corruption
that rendered the evaluation of the model fit for the 180-foot
aquifer useless.” (Water Plus motion at 12.)

The positions taken by Water Plus with respect to data adequacy, model
fit, and understanding of anomalies, however, are not undisputed.
Similarly, Water Plus uses a formula to address the amount of water that
must be returned as part of the Return Water Settlement. The formula is based
on three values. Water Plus states that “little dispute exists about two of the
values. The third value [groundwater total dissolved solids], however, is subject
to dispute.” (Motion at 15.) That is, Water Plus acknowledges a material dispute
and cannot prevail here on an allegation that the facts are undisputed.
With respect to the law, the interpretation of the Agency Act asserted by
Water Plus is disputed by Applicant and others. That is, Water Plus cannot
prevail here on the basis of undisputed law. Rather, parties will have the
opportunity to fully brief the Agency Act when final briefs are filed, and the
Commission will make its determination on the law at that time.
With respect to the data as applied to the law, even if the allegations made
by Water Plus with regard to insufficiency and corruption of project evaluation
data were entirely correct and uncontroverted, those allegations only go to the
sufficiency of the EIR. Parties have commented on the draft EIR and those
comments will be taken into account in the final EIR. Parties will brief the
sufficiency of the EIR in 2018, and the Commission will weigh those arguments
when it decides whether or not to certify the final EIR. The Commission will
consider the final EIR, if certified, in its ultimate decision on the application. So,
even construing the facts in the manner most favorable to Water Plus (which

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inverts the normal presumption in motions to dismiss 1), those allegations are not
sufficient to decide, as a matter of law, that the application should be dismissed.
There is no need to defer ruling on the motion, as suggested by MCWD.
Everything in the motion is already before the Commission in either the
environmental or certificate portions of the proceeding, or may be presented at
the appropriate time (e.g., briefing on EIR matters). The motion should be
denied.
The arguments of Water Plus have now been made and rejected three
times. Another similar motion, if any, by Water Plus must clearly and
specifically state the factual and/or legal circumstances that have changed since
today’s Ruling. A party merely rearguing the same position absent new and
compelling facts or law wastes the limited time and resources of the Commission
and other parties.

IT IS RULED that the June 1, 2017 Water Plus Motion to Dismiss the
Proceeding is denied.

Dated December 4, 2017, at San Francisco, California.

/s/ GARY WEATHERFORD

Gary Weatherford
Administrative Law Judge

1 In considering motions for summary judgment, "the affidavits of the moving party are strictly
construed and those of his opponent, even if in conclusionary terms, are liberally construed."
(R.D. Reeder Lathing Co., supra, 66 Cal.2d at 376; see also, e.g., Horn v. Cushman & Wakefield
Western, Inc. (1999) 72 Cal.App.4th 798, 805 ("We accept as true the facts alleged in the evidence
of the party opposing summary judgment and the reasonable inferences that can be drawn from
them.").) (Also see October 29, 2015 Ruling at 6 and footnote 2.)

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