E-RECEIVED J. BANKS (SBN 119525) 2/2/2017 W. DAVID … · 1-05-cv-049053 (jccp 4408) antelope valley groundwater cases wednesday, december 14, 2016 hon. jack komar, judge (as heretofore

1 JAMES J. BANKS (SBN 119525) W. DAVID CORRICK (SBN 171827)

2 BANKS & WATSON 901 F Street, Suite 200

3 Sacramento, California 95814 Phone: (916) 325-1000

4 Fax: (916) 325-1004 Email: [email protected]

5 WILLIAM J. BRUNICK (SBN 46289)

6 LELAND P. MCELHANEY (SBN 39257) BRUNICK, MCELHANEY & KENNEDY

7 1839 Commercenter West San Bernardino, CA 92408

8 Phone: 909) 889-8301 Fax: (909) 388-1889

9 Email: [email protected]

Exempt from Filing Fee Pursuant to Gov't. Code § 6103

10 Attorneys for Cross-Defendant/Cross-Complainant, ANTELOPE VALLEY EAST - KERN WATER AGENCY

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

14 Coordination Proceeding Special Title (Rule 1550(b))

15 ANTELOPE VALLEY

16 GROUNDWATER CASES

17 Including Consolidated Actions:

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Los Angeles County Waterworks District No. 40 v. Diamond Farming Co. Superior Court of California, County of Los Angeles, Case No. BC 325 201

Los Angeles County Waterworks District No. 40 v. Diamond Farming Co. Superior Court of California, County of Kern, Case No. S-1500-CV -254-348

Wm. Bolthouse Farms, Inc. v. City of Lancaster Diamond Farming Co. v. City of Lancaster Diamond Farming Co. v. Palmdale Water Dist. Superior Court of California, County of Riverside, consolidated actions, Case Nos. RIC 353 840, RIC 344436, RIC 344 668

AND RELATED ACTIONS.

{00081027.DOCX; I}

Judicial Council Coordination Proceeding No. 4408

Santa Clara Case No. 1-05-CV -049053 Assigned to the Honorable Jack Komar Department 17C

ANTELOPE VALLEY EAST - KERN WATER AGENCY'S NOTICE OF APPEAL [CCP § 904.1(a)(6)]

ANTELOPE VALLEY EAST - KERN WATER AGENCY'S NOTICE DESIGNATING RECORD ON APPEAL [CRC Rule 8.124; CRC Rule 8.130]

Judge: Hon. Jack Komar Complaint Filed: 9/22/2005 Trial Date:

ANTELOPE V ALLEY EAST - KERN WATER AGENCY'S NOTICE OF APPEAL AND NOTICE DESIGNATING RECORD ON APPEAL

E-RECEIVED

2/2/2017

1 NOTICE OF APPEAL

2 Cross-Defendant/Cross-Complainants and Appellant Antelope Valley East - Kern Water Agency

3 ("AVEK") hereby appeals from the superior court's December 9, 2016 order denying AVEK's Motion

4 to Disqualify Best Best & Krieger as Legal Counsel in Antelope Valley Groundwater Cases. The

5 superior court's order is appealable pursuant to California Code of Civil Procedure section 904.1 (a)(6)

6 and as a final order collateral to the main action.

7 DESIGNATION OF RECORD ON APPEAL

8 1. Record of Documents Filed in the Superior Court

9 NOTICE IS HEREBY GIVEN that AVEK elects to proceed under the provisions California

10 Rule of Court, rule 8.124, so that a joint appendix or individual appendices will be submitted in lieu of a

11 clerk's transcript.

12 2. Record of Oral Proceedings in the Superior Court

13 FURTHER, NOTICE IS HEREBY GIVEN that pursuant to the provisions California Rule of

14 Court, rule 8.130, AVEK designates for inclusion in the Reporter's Transcript on Appeal the following:

15 (a) All arguments, discussions, conferences, and colloquies between counsel and between

16 counsel and the superior court regarding AVEK's Motion to Disqualify Best Best & Krieger as Legal

1 7 Counsel in Antelope Valley Groundwater Cases, which was heard before this Court on December 7,

18 2016.

19 Pursuant to California Rule of Court, rule 8 .130(b )(3)(C), a certified transcript of the designated

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proceedings is attached hereto.

Respectfully submitted,

DATED: February 1,2017 BANKS & WATSON

By:

{00081027.DOCX; I} 1 ANTELOPE V ALLEY EAST - KERN WATER AGENCY'S NOTICE OF APPEAL AND

NOTICE DESIGNATING RECORD ON APPEAL

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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DEPARTMENT 222 HON. JACK KOMAR, JUDGE

COORDINATION PROCEEDING SPECIAL TITLE (RULE 550(B))

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ANTELOPE VALLEY GROUNDWATER CASES

INCLUDED ACTIONS:

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JUDICIAL COUNCIL COORDINATION PROCEEDING NO. 4408

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LOS ANGELES COUNTY WATERWORKS )

DISTRICT NO. 40 V. DIAMOND FARMING) SANTA CLARA CASE NO. 1-05-CV-049053

CO., SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, CASE NO. BC325201;

LOS ANGELES COUNTY WATERWORKS DISTRICT NO. 40 V. DIAMOND FARMING

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CERTIFIED TRANSCRIPT

CO., SUPERIOR COURT OF CALIFORNIA, COUNTY OF KERN, CASE NO. S-1500-CV254-348;

WM. BOLTHOUSE FARMS, INC. V. CITY OF LANCASTER, DIAMOND FARMING CO. V. CITY OF LANCASTER, DIAMOND FARMING CO. V. PALMDALE WATER DIST., SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE, CASE NOS. RIC353840, RIC344436, RIC344668;

REBECCA LEE WILLIS V. LOS ANGELES, COUNTY WATERWORKS DISTRICT NO. 40, ET AL., SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, CASE NO. BC364533;

RICHARD WOOD V. LOS ANGELES COUNTY WATERWORKS, DISTRICT NO. 40, ET AL., SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, CASE NO. BC391869

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REPORTER'S TRANSCRIPT OF PROCEEDINGS DECEMBER 7, 2016

SHAWNDA R. DORN, CSR NO. 11387, RPR, CCRR, CLR OFFICIAL REPORTER PRO TEMPORE

Veritext Legal Solutions 866299-5127

Page 1

1 APPEARANCES:

2 3 FOR THE PLAINTIFF: (RICHARD WOOD)

4 LAW OFFICES OF MICHAEL D. MCLACHLAN,

APC

5 BY: MICHAEL D. MCLACHLAN, ESQ.

44 HERMOSA AVENUE

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HERMOSA BEACH, CALIFORNIA 90254

(310) 954-8270

[email protected]

10 FOR THE DEFENDANTS AND CROSS-COMPLAINANTS:

11 LITTLE ROCK CREEK IRRIGATION DISTRICT, ET AL.

LEMIEUX & O'NEILL

12 BY: MICHAEL R. SILANDER, ESQ.

13 4165 EAST THOUSAND OAKS BOULEVARD

SUITE 350

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WESTLAKE VILLAGE, CALIFORNIA 91362

(805) 495-4770

[email protected]

17 FOR THE CROSS-COMPLAINANT:

18 ANTELOPE VALLEY EAST - KERN WATER AGENCY

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BANKS & WATSON

BY: JAMES J. BANKS, ESQ.

901 F. STREET

SUITE 200

SACRAMENTO, CALIFORNIA 95814

(916) 325-1000

[email protected]

BRUNICK, MCELHANEY & KENNEDY

BY: LELAND P. MCELHANEY, ESQ.

1839 COMMERCENTER WEST

SAN BERNARDINO, CALIFORNIA 92408

(909) 889-8301

[email protected]


Page 2

1 APPEARANCES (CONTINUED):

2

3 FOR THE CROSS-COMPLAINANT:

4 LOS ANGELES COUNTY WATERWORKS DISTRICT NO. 40

5 BEST, BEST & KRIEGER, LLP

BY: JEFFREY V. DUNN, ESQ.

6 WENDY Y. WANT, ESQ.

7 18101 VON KARMAN AVENUE

8 SUITE 1000

IRVINE, CALIFORNIA 92612

9 (949) 263-2600

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OFFICE OF COUNTY COUNSEL

COUNTY OF LOS ANGELES

BY: WARREN WELLEN

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PRINCIPAL DEPUTY COUNTY COUNSEL

500 WEST TEMPLE STREET

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LOS ANGELES, CALIFORNIA 90012

(213) 974-8407

GREINES, MARTIN, STEIN & RICHLAND, LLP

BY: TIMOTHY T. COATES, ESQ.

5900 WILSHIRE BOULEVARD

TWELFTH FLOOR

LOS ANGELES, CALIFORNIA 90036

(310) 859-7811

21 FOR THE CROSS-DEFENDANT:

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CITY OF LOS ANGELES

KRONICK, MOSKOVITZ, TIEDEMANN &

GIRARD

BY: ERIC N. ROBINSON, ESQ.

400 CAPITOL MALL

TWENTY-SEVENTH FLOOR

SACRAMENTO, CALIFORNIA 95814

(916) 321-4500

[email protected]


Page 3

1 APPEARANCES (CONTINUED): 2 3 FOR THE INTERVENOR:

COUNTY OF SANITATION DISTRICT OF LOS ANGELES COUNTY NOS. 14 & 20

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ELLISON, SCHNEIDER & HARRIS, LLP BY: CHRISTOPHER M. SANDERS, ESQ. 2600 CAPITOL AVENUE SUITE 400 SACRAMENTO, CALIFORNIA 95816-5905 (916) 447-2166

7 [email protected] 8

9 COURT CALL: 10 FOR THE DEFENDANT AND CROSS-COMPLAINANT: 11 HELAN PINON HILLS COMMUNITY SERVICES DISTRICT 12

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16 FOR THE DEFENDANTS:

ALESHIRE & WYNDER, LLP BY: KABIR CHOPRA, ESQ. 2361 ROSECRANS AVENUE SUITE 475 EL SEGUNDO, CALIFORNIA 90245-5086 (310) 527-6660 KCHOPRAAWATTORNEYS.COM

17 STATE OF CALIFORNIA AND SANTA MONICA MOUNTAIN CONSERVANCY, ET AL. 18 CALIFORNIA DEPARTMENT OF JUSTICE

BY: NOAH MARC GOLDEN-KRASNER, ESQ. 19 300 SOUTH SPRING STREET,

SUITE 1700 20

21 FOR THE DEFENDANT:

22 TEJON RANCH COMPANY

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LOS ANGELES, CALIFORNIA 90013 (213) 897-2614

KUHS & PARKER BY: ROBERT G. KUHS, ESQ. 1200 TRUXTUN AVENUE SUITE 200 BAKERSFIELD, CALIFORNIA 93303-2205 (661) 322-4004 [email protected]


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FOR THE DEFENDANT:

9 FOR THE DEFENDANT:

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U.S. BORAX

15 FOR THE DEFENDANTS:

BORON COMMUNITY SERVICES DISTRICT

MCMURTREY & HARTSOCK & WORTH

BY: JAMES A. WORTH, ESQ.

2001 22ND STREET

SUITE 100

BAKERSFIELD, CALIFORNIA 93301

(805) 322-4417

MORRISON & FOERSTER, LLP

BY: WILLIAM M. SLOAN, ESQ.

425 MARKET STREET

SAN FRANCISCO, CALIFORNIA 94105

(415) 268-7209

[email protected]

CITY OF LANCASTER AND ROSAMOND COMMUNITY SERVICE DISTRICT

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MURPHY & EVERTZ, LLP

BY: BRADFORD BENZ GRABSKE, ESQ.

650 TOWN CENTER DRIVE

SUITE 550

COSTA MESA, CALIFORNIA 92626

(714) 277-1700

[email protected]

FOR THE CROSS-COMPLAINANT:

22 CALIFORNIA WATER SERVICE COMPANY

23 CALIFORNIA WATER SERVICE COMPANY

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BY: JOHN S. TOOTLE, ESQ.

POST OFFICE BOX 4345

PALOS VERDES PENINSULA, CA 90274

(424) 237-7916

[email protected]


Page 5

1 APPEARANCES (CONTINUED): 2 3 FOR THE CROSS-DEFENDANTS: 4 SHEEP CREEK, ET AL. 5 GRESHAM, SAVAGE, NOLAN & TIDEN, PC

BY: MICHAEL D. DAVIS, ESQ. 6 550 EAST HOSPITALITY LANE

SUITE 300 7 SAN BERNARDINO, CALIFORNIA 92408

(909) 890-4499 8 [email protected] 9

10 FOR THE CROSS-DEFENDANT: 11 CITY OF LOS ANGELES

KRONICK, MOSKOVITZ, TIEDERMANN & 12 GIRARD

BY: STANLEY C. POWELL, ESQ. 13 400 CAPITOL MALL

TWENTY-SEVENTH FLOOR 14

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SACRAMENTO, CALIFORNIA 95814 (916) 321-4500 [email protected]

FOR THE CROSS-DEFENDANT: 17 ANTELOPE VALLEY MOBILE ESTATES

LAW OFFICES OF WALTER J. WILSON 18 BY: WALTER J. WILSON, ESQ.

333 WEST BROADWAY 19 SUITE 200

LONG BEACH, CALIFORNIA 90802-4439 20 (562) 4432-3388 21 22 FOR THE CROSS-DEFENDANTS: 23 LANDIN V. INC., ET AL.

MUSICK, PEELER & GARRETT, LLP 24 BY: THEODORE A. CHESTER, ESQ.

624 SOUTH GRAND AVENUE 25 SUITE 2000

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LOS ANGELES, CALIFORNIA 90017 (213) 629-7623

Veritext Legal Solutions 866 299-5127

Page 6


2

3 THE REAL-PARTY-IN-INTEREST:

4 ANTELOPE VALLEY WATER STORAGE, LLC

5 HERUM, CRABREE, SUNTAG

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BY: JANELLE S. KRATTIGER, ESQ.

5757 PACIFIC AVENUE

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SUITE 222

STOCKTON, CALIFORNIA 95207

(209) 472-7700

[email protected]

13 ALSO PRESENT ON COURT CALL:

14 FRANK DONATO, NEAL WEISENBERGER, GEORGE LANE, SHELLY

15 SORSABAL, MARLON BARNES, JOHN UKKESTAD, IAN KRUPAR, RON

16 SMITH, JAMES DUBOIS, RICHARD A. WOOD

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CASE NUMBER:

CASE NAME:

LOS ANGELES, CALIFORNIA

DEPARTMENT 222

APPEARANCES:

REPORTER:

TIME:

1-05-CV-049053 (JCCP 4408)

ANTELOPE VALLEY GROUNDWATER

CASES

WEDNESDAY, DECEMBER 14, 2016

HON. JACK KOMAR, JUDGE

(AS HERETOFORE NOTED.)

SHAWNDA R. DORN, CSR 11387

8:58 A.M.

THE COURT: ALL RIGHT. WE CAN GO AHEAD AND

12 PROCEED. IF ANYBODY IS STILL ON THE PHONE WHO HAS NOT

13 YET IDENTIFIED THEMSELVES, YOU CAN DO THAT AT THE END OF

14 THE PROCEEDINGS OR AT SUCH TIME AS YOU WANT TO BE HEARD.

15 WE HAVE ESSENTIALLY TWO MATTERS HERE. WE

16 HAVE THE MOTION CONCERNING THE PROPOSED ELECTION RULES,

17 AS WELL AS A MOTION TO DISQUALIFY COUNSEL. I RECEIVED A

18 LOT OF MATERIAL FROM THE PARTIES CONCERNING BOTH OF

19 THESE. I'VE HAD A CHANCE TO REVIEW THEM CAREFULLY.

20 WE'RE GOING TO TAKE UP THE ELECTION RULES

21 FIRST, AND I WOULD ASK COUNSEL WHO ARE GOING TO APPEAR

22 AND ADDRESS THE COURT ON THAT, PLEASE IDENTIFY YOURSELVES

23 AND SIT AT COUNSEL TABLE.

24 ALL RIGHT. FOR THE BENEFIT OF THE REPORTER

25 NOW.

26 MS. WANG: WENDY WANG FROM BEST, BEST & KRIEGER ON

27 BEHALF OF THE LOS ANGELES COUNTY WATERWORKS DISTRICT NO.

28 40. GOOD MORNING, YOUR HONOR.


Page 8

1 MR. ROBINSON: GOOD MORNING, YOUR HONOR. MY NAME

2 IS ERIC ROBINSON REPRESENTING THE CITY OF LOS ANGELES,

3 CROSS-DEFENDANT.

4 MR. SANDERS: CHRIS SANDERS ON BEHALF OF THE

5 COUNTY SANITATION DISTRICTS OF LOS ANGELES COUNTIES

6 NO S. 14 AN D 20.

7 THE COURT: ALL RIGHT. GOOD MORNING TO YOU AND TO

8 ALL OTHER COUNSEL HERE AND OTHER PLACES.

9 MY RECOLLECTION IS THAT AT THE TIME THAT WE

10 HAD THE FIRST HEARING ON THIS, THE COURT APPROVED THESE

11 RULES WITH THE SINGLE EXCEPTION OF (5) (A). IS THAT YOUR

12 RECOLLECTION?

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MS. WANG: YES, YOUR HONOR.

MR. ROBINSON: YES, YOUR HONOR.

THE COURT: MR. SANDERS, IS THAT ALSO YOUR

16 RECOLLECTION?

17 MR. SANDERS: (NODS HEAD UP AND DOWN.)

18 THE COURT: OKAY. NOW, IT'S ALSO MY UNDERSTANDING

19 THAT AT THE PRESENT POSTURE OF THE CASE AND AT THE TIME

20 THAT THE SETTLEMENT WAS ENTERED INTO, THAT IT WAS AGREED

21 THAT THE PUBLIC WATER PRODUCERS WOULD NOT HAVE A VOTE ON

22 THE SELECTION OF THE LANDOWNER REPRESENTATIVES TO

23 WATERMASTER. IS THAT ALSO CORRECT?

24 MS. WANG: I THINK PERSONAL TO WHAT'S STATED IN

25 THE PHYSICAL SOLUTION IS THE RIGHT HOLDER IDENTIFIED ON

26 EXHIBIT 4 AND THEIR SUCCESSOR WILL REQUIRE THE RIGHT TO

27 VOTE.

28 THE COURT: BUT THERE ARE NO PUBLIC WATER


Page 9

1 PRODUCERS ON THAT LIST, ARE THERE?

2 MS. WANG: NOT AT THE TIME OF THE SETTLEMENT, NO,

3 YOUR HONOR.

4 THE COURT: AND IT WAS UNDERSTOOD THAT THE

5 ALLOCATION OF POWER BETWEEN THESE VARIOUS GROUPS WAS

6 INTENTIONALLY DEVELOPED SO THAT THERE WOULD BE SOME

7 BALANCE, AND THAT THE PUBLIC WATER PRODUCERS WOULD HAVE A

8 SEPARATE INTEREST BECAUSE OF THE NATURE OF THEIR BUSINESS

9 IS WATER USAGE AND THE LANDOWNERS. IS THAT ALSO CORRECT?

10 MS. WANG: BASED ON THE CIRCUMSTANCES AT THE TIME

11 OF THE SETTLEMENT, YES, YOUR HONOR.

12 THE COURT: I MEAN, THAT'S THE LANGUAGE THAT IS IN

13 THE AGREEMENT, ISN'T IT?

14 MS. WANG: WELL, THE LANGUAGE, I THINK, LEFT OPEN

15 THE DOOR THAT IF THE PUBLIC WATER SUPPLIERS WERE TO

16 I ACQUIRE THE WATER RIGHTS IN EXHIBIT 4, USUALLY UNDER

17 CERTAIN CIRCUMSTANCES, THEY WOULD BE ABLE TO PARTICIPATE.

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THE COURT: WHY WOULD THAT BE FAIR?

MS. WANG: I THINK IT DEPENDS ON HOW THE

20 CIRCUMSTANCES IN THE FUTURE CHANGE. IF THE WATER

21 PUBLIC WATER SUPPLIERS WERE TO ACQUIRE ESSENTIALLY 70

22 PERCENT, 80 PERCENT OF THOSE WATER RIGHTS, EVENTUALLY I

23 THINK THE COURT HAS TO WEIGH THE PUBLIC WATERS OR THE

24 PUBLIC INTEREST FOR THOSE RIGHTS TO BE REPRESENTED ON THE

25 WATERMASTER BOARD.

26 THE COURT: WELL, YOU CERTAINLY WANT TO HAVE

27 BALANCE THAT IS NOT -- I GUESS, IT'S ROUGHLY ALLOCATED TO

28 WATER USAGE, IS IT NOT, TO WATER PUMPING?


Page 10

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MS. WANG: ROUGHLY FOR THE EXHIBIT 4 RIGHTS, YES.

MR. ROBINSON: YOUR HONOR, MAY I SPEAK TO THAT

3 VERY QUICKLY?

4 THE COURT: SURE.

5 MR. ROBINSON: BECAUSE IT'S AN IMPORTANT POINT.

6 THE STARTING POSITION FOR THE BALANCE OF

7 POWER ON WHICH THE LANDOWNERS HAVE TWO SEATS ON THE

8 WATERMASTER BOARD, AND THE PUBLIC WATER SUPPLIERS HAVE

9 TWO SEATS DOES NOT ACTUALLY REFLECT THE AMOUNT OF

10 ADJUSTED NATIVE SAFE FUEL, THE AMOUNT OF WATER, IF YOU

11 WILL, CONTROLLED BY EACH SIDE ON THIS SCALE.

12 THE PUBLIC WATER SUPPLIERS CONTROL 17

13 PERCENT OF THE WATER. THE LANDOWNERS CONTROL 83 PERCENT

14 EVEN AND SO THAT'S IMPORTANT BECAUSE, YOU SEE, MUCH

15 MORE WATER IS CONTROLLED BY THE LANDOWNERS; AND, YET, WE

16 ONLY HAVE TWO SEATS. FOR A MATERIAL CHANGE IN

17 CIRCUMSTANCES, THE PUBLIC WATER SUPPLIERS WOULD HAVE TO

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ACQUIRE AN ENORMOUS AMOUNT OF WATER. AND SO THE BALANCE

OF POWER DOES NOT EXACTLY REFLECT THE AMOUNT OF WATER

CONTROLLED BY THE TWO SIDES ON THE SCALE.

THE COURT: I THINK I MISSTATED WHAT I WAS

22 THINKING AT THE TIME. THE ACTUAL VOTES FOR THE

23 WATERMASTER LANDOWNER REPRESENTATIVES ARE APPORTIONED

24 ACCORDING TO THE AMOUNT OF PUMPING THAT EACH OF THEM DO

25 WITHIN THAT MILL UNIT; IS THAT TRUE?

26 MS. WANG: ROUGHLY FOR EXHIBIT 4, BUT THERE IS

27 OTHER WATER RIGHTS INTERESTS THAT'S NOT DIRECTLY

28 REFLECTED IN ALL THE 5 (4) (C), SO THE STORAGE WATER RIGHTS


Page 11

1 AND WHAT NOT. AND I THINK DISTRICT NO. 40, AS ONE OF THE

2 LARGEST WATER SUPPLIER PURVEYORS IN THE REGION, HAS A

3 4(C) PROBABLY BECAUSE OF ITS INTEREST IN MAINTAINING

4 SUSTAINABLE WATER RESOURCES FOR THE GREATER AREA.

5 THE COURT: OKAY. ALL RIGHT. SO IF WE GO BACK TO

6 THE STARTING POINT, THE CONDITIONS AND THE CIRCUMSTANCES

7 AS THEY EXIST AT THE TIME THAT THE STIPULATION WAS

8 ENTERED INTO, AND THOSE REMAIN TRUE TODAY; IS THAT RIGHT?

9 MS. WANG: ROUGHLY. I BELIEVE THERE ARE SOME

10 OTHER AGENCIES OTHER THAN DISTRICT NO. 40 WHO HAVE

11 ACQUIRED EXHIBIT 4 RIGHTS.

12 THE COURT: OTHER PUBLIC WATER SUPPLIERS. HAS THE

13 DISTRICT 40 ACQUIRED EXHIBIT 4 LAND?

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MS. WANG: NOT TO MY KNOWLEDGE.

THE COURT: NOT YET?

MS. WANG: NO.

THE COURT: HAS ANYBODY, ANY PUBLIC WATER

18 SUPPLIER?

19 MS. WANG: ROSAMOND. I BELIEVE ROSAMOND COMMUNITY

20 DISTRICT HAVE ACQUIRED RIGHTS OR LAND FROM EXHIBIT 4

21 RIGHTS.

22 THE COURT: OKAY. WELL, AT THE TIME THAT THE

23 COURT APPROVED THE STIPULATION, THE AGREEMENT, SETTLEMENT

24 BETWEEN THE PARTIES, AND INDEPENDENTLY APPROVED PHYSICAL

25 SOLUTION AND THE CONCEPT FOR IT, IT WAS THE COURT'S

26 INTENT TO PROVIDE FOR A BALANCE THAT HAD BEEN AGREED TO

27 BY THE PARTIES IN TERMS OF THE VOTING POWER, AND THAT

28 WOULD NOT HAVE INCLUDED CONTEMPLATING WHATEVER MINOR


Page 12

1 SHIFTS THERE MIGHT BE IN OWNERSHIP OF THE LAND THAT WAS

2 OWNED BY THE PARTIES ON EXHIBIT 4.

3 THERE IS NO QUESTION THAT CIRCUMSTANCES CAN

4 CHANGE, AND I THINK THAT WE'VE BEEN TALKING ABOUT THAT

5 FROM THE OUTSET IN THIS CASE, THAT WHATEVER ATTEMPTED

6 RESOLUTION WE REACH IS ALWAYS GOING TO HAVE TO BE SUBJECT

7 IN EQUITY TO MODIFICATIONS AND REVISIONS IN THE EVENT

8 THAT THOSE CIRCUMSTANCES OCCUR.

9 AND IT SEEMS TO ME THAT HOWEVER YOU PHRASE

10 IT, ALL YOU ARE REALLY TALKING ABOUT IS WHO HAS THE

11 BURDEN OF COMING TO THE COURT TO ASK FOR A MODIFICATION

12 OR REVISION SO THAT MY INCLINATION HAS ALWAYS BEEN TO

13 RECOGNIZE THAT THOSE CHANGES NEED TO BE ADDRESSED, AND I

14 WAS -- I WAS LOOKING AT THE LANGUAGE THAT WE HAVE. LET

15 ME SEE IF I CAN FIND WHAT I WROTE TO MYSELF.

16 I WAS GOING BACK TO THE ORIGINAL VERSION OF

17 THE PROPOSED RULES AND SPECIFICALLY THE VERSION THAT I

18 INDICATED THE TENTATIVE APPROVAL OF WITH THE EXCEPTION OF

19 (5) (A) AND THE PROBLEMS THERE. AND I KIND OF RESTATED IT

20 FOR MYSELF, AND HERE IS THE LANGUAGE THAT I THINK I'M

21 INCLINED TO WANT TO APPROVE.

22 FIRST OF ALL, THE LANGUAGE WILL BE THE

23 SAME, AND THEN WE GET TO THE PARAGRAPH:

24 "TWO LANDOWNER PARTIES EXCLUSIVE OF

25 PUBLIC AGENCIES AND MEMBERS OF THE

26 NON-PUMPER AND SMA~L PUMPER CLASSES

27 SELECTED BY THE MAJORITY VOTE OF THE

28 LANDOWNERS IDENTIFIED ON EXHIBIT 4 WERE


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THE SUCCESSORS-IN-INTEREST" -- AND I HAVE

A FOOTNOTE THERE THAT I'LL GET TO IN A

SECOND -- "BASED ON THEIR PROPORTIONATE

SHARE OF THE TOTAL PRODUCTION RIGHTS

IDENTIFIED IN EXHIBIT 4."

AND THE FOOTNOTE SAYS THIS: "IN

7 ORDER TO MAINTAIN VOTING BALANCE IN THE

8 ANTELOPE VALLEY IN ACCORDANCE WITH THE

9 STIPULATION AND JUDGMENT, PUBLIC WATER

10 PRODUCERS WHO REQUIRE WATER RIGHTS FOR

11 EXHIBIT 4 LANDOWNERS SHALL NOT VOTE FOR

12 LANDOWNER REPRESENTATIVES TO THE

13 WATERMASTER BOARD WITHOUT FURTHER ORDER OF

14 THE COURT UPON PROOF IN EQUITY OF GOOD

15 CAUSE."

16 AND THAT PRESERVES THE STATUS QUO THAT WAS

17 AGREED TO AND WHICH THE COURT HAD IN MIND WHEN HE

18 APPROVED IT. BUT IT ALSO PROVIDES A SPECIFIC BASIS UPON

19 WHICH ANY PARTY CAN SEEK A REVISION OF THE TERMS OF THAT

20 PROVISION.

21 SO LET ME HEAR IF THERE IS ANY OBJECTION TO

22 THAT LANGUAGE THAT I JUST READ.

23 MR. ROBINSON: YOUR HONOR, FOR THE CITY OF

24 LOS ANGELES, NO OBJECTION, AND WE AFFIRMATIVELY SUPPORT

25 THAT RESOLUTION OF THIS DISPUTE.

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THE COURT: MISS WANG?

MS. WANG: NO OBJECTION.

MR. MCLACHLAN: MICHAEL MCLACHLAN FOR RICHARD


Page 14

1 WOOD, THAT LANGUAGE IS ACCEPTABLE.

2 THE COURT: OKAY. WITH THAT MODIFICATION THEN,

3 THE VERSION THAT WAS APPROVED BY THE COURT AT THE FIRST

4 HEARING, I THINK IT WAS IN SEPTEMBER ON THIS ISSUE,

5 SHOULD BE THE FINAL VERSION THAT'S PREPARED FOR THE

6 COURT'S SIGNATURE.

7 WHO WANTS TO DO THAT?

8 MR. ROBINSON: YOUR HONOR, ERIC ROBINSON FOR THE

9 CITY OF LOS ANGELES, WE'LL AGREE TO SUBMIT THAT

THE COURT: OKAY. 10

11 MR. ROBINSON: AN ORDER APPROVING THOSE RULES

12 WITH THIS CHANGE FOR THE COURT'S APPROVAL.

13 THE COURT: YES. ALL RIGHT. THANK YOU. AND

14 THANK YOU FOR YOUR GETTING TOGETHER ON THIS AND AT LEAST

15 TRYING TO RESOLVE IT, BUT I NEVER MIND COMING TO

16 LOS ANGELES FOR A DAY. WE HAD TO BE HERE ANYWAY FOR

17 ANOTHER MATTER ON THIS CALENDAR.

18 SO LET'S TAKE THAT ONE UP NOW, AND THAT'S

19 THE MOTION TO DISQUALIFY. WHO IS GOING TO APPEAR ON

20 THAT?

21 MR. BANKS: GOOD MORNING, YOUR HONOR. JAMES BANKS

22 ON BEHALF OF THE ANTELOPE VALLEY EASTERN WATER DISTRICT.

23 MR. COATES: GOOD MORNING, YOUR HONOR. TIMOTHY

24 COATES ON BEHALF OF LOS ANGELES COUNTY WATERWORKS

25 DISTRICT NO. 40.

26 MR. DUNN: AND GOOD MORNING, YOUR HONOR. JEFFREY

27 DUNN ON BEHALF OF LOS ANGELES COUNTY WATERWORKS DISTRICT

28 NO. 40.


Page 15

1 MR. WELLEN: GOOD MORNING, YOUR HONOR. WARREN

2 WELLEN WITH THE COUNTY COUNSEL'S OFFICE ON BEHALF OF

3 DISTRICT 40.

4 MR. MCELHANEY: LELAND MCELHANEY ON BEHALF OF

5 DISTRICT 40.

6 MR. GRABSKE: AND, YOUR HONOR, BRAD GRABSKE ON

7 BEHALF OF THE CITY OF LANCASTER AND ROSAMOND COMMUNITY

8 SERVICE DISTRICT 40.

9 THE COURT: ALL RIGHT. THANK YOU. AND

10 MR. MCELHANEY.

11 MR. MCELHANEY: LELAND MCELHANEY ON BEHALF OF

12 DISTRICT 40.

13 THE COURT: ALL RIGHT. THIS IS AN AUTHORITATIVE

14 CASE IN SO MANY WAYS. I SPENT A LOT OF TIME READING YOUR

15 BRIEFS. I SPENT A LOT OF TIME THINKING ABOUT IT. I

16 SPENT SOME TIME READING CASES THAT DEAL WITH THIS ISSUE.

17 AND IT SEEMS TO ME THAT FACTUALLY, CORRECT ME IF I'M

18 WRONG, WE'RE AT THE CURRENT SITUATION WHERE NO MEMBER OF

19 BEST, BEST & KRIEGER REPRESENTS AVEK; IS THAT CORRECT?

20

21

MR. BANKS: THAT WOULD BE CORRECT, YOUR HONOR.

THE COURT: AND AVEK HAS REPRESENTED DISTRICT 40

22 FROM EITHER PRIOR TO THE COORDINATION OF THIS MATTER,

23 CERTAINLY OVER ABOUT THE LAST 11 YEARS DURING THE COURSE

24 OF THIS LITIGATION; IS THAT CORRECT?

25 MR. DUNN: THAT'S CORRECT, YOUR HONOR.

26 THE COURT: CAN SOMEBODY TELL ME WHY AVEK NEVER

27 OBJECTED TO THEIR CONTINUED REPRESENTATION IN THIS

28 LITIGATION AND IN THE OFFICE OF THE GENERAL COUNSEL, I


Page 16

1 SUPPOSE, I WOULD DESCRIBE IT? WHY WOULD THAT OCCUR?

2 MR. BANKS: YOUR HONOR, I'LL SPEAK TO THAT.

3 OBVIOUSLY, IT'S AN IMPORTANT ISSUE IN CONNECTION WITH

4 THIS RECUSAL MOTION. THE SIMPLE FACT IS THAT IT IS

5 COUNSEL'S OBLIGATION TO CALL THE CONFLICT TO THE CLIENT'S

6 ATTENTION, AND THAT OBLIGATION IS EXPRESSED IN THE RULES

7 OF PROFESSIONAL CONDUCT, ET CETERA, AND IN THIS INSTANCE

8 SUBDIVISION C OF RULE 3-310.

9 THE POTENTIALITY OF A CONFLICT WAS

10 EXPRESSED IN A LETTER AT THE VERY BEGINNING OF THIS

11 LITIGATION, BUT THAT'S REALLY AS FAR AS IT WENT. AND WE

12 NOTE KNOW FROM THE RECORD, YOUR HONOR, THAT BEST, BEST &

13 KRIEGER KNOWS HOW TO WRITE A CONFLICT ISSUE OR A CONFLICT

14 LETTER BECAUSE THEY DID SO IN THE ROSAMOND MATTER, BUT

15 THEY SIMPLY DIDN'T DO IT HERE. AND AS THE CASES EXPRESS

16 -- AND I HOPE I'M RESPONDING TO YOUR QUESTION,

17 YOUR HONOR, BUT AS THE CASE LAW EXPRESSES, IT REALLY IS

18 COUNSEL'S DUTY, AND IF COUNSEL DOESN'T ADHERE TO THAT --

19 THE COURT: I UNDERSTAND WHAT THE DUTY IS. THAT'S

20 REALLY NOT MY QUESTION. MY QUESTION IS AS A PRACTICAL

21 MATTER, WHY WAS -- AND AVEK WAS REPRESENTED THE ENTIRE

22 TIME BY OTHER COUNSEL AS SOON AS THERE WAS AN ACTUAL

23 I CONFLICT THAT OCCURRED, AND NOT ONE WORD CAME FROM THAT

24 COUNSEL. I CANNOT IMAGINE THAT THAT COUNSEL DID NOT CALL

25 ATTENTION TO THE PROBLEM TO THE BOARD.

26 MR. BANKS: I THINK THE CONFLICT ISSUE BECAME

27 MANIFEST PRIMARILY IN THE BOARD'S MIND WITH THE

28 SETTLEMENT PROCESS THAT OCCURRED BEFORE JUSTICE ROBIE.


Page 17

1 I'M NOT -- I WASN'T THERE, YOUR HONOR.

2 THE COURT: THAT'S REALLY NOT CORRECT. THE

3 CONFLICT OCCURRED IN 2005 AT THE TIME WHEN A CLAIM WAS

4 FILED THAT WAS AGAINST AVEK, AND AVEK FILED A

5 CROSS-COMPLAINT.

6 MR. BANKS: THAT IS VERY TRUE, AND WE MAKE THAT

7 POINT IN OUR PAPERS. THE ACTUAL CONFLICT MANIFESTED

8 ITSELF IN 2006. THAT MUCH IS TRUE WITH THE FILING OF

9 OPPOSING PLEADINGS CLAIMING THE SAME RETURN RIGHTS. THE

10 BOARD FOR WHATEVER REASON DIDN'T MAKE AN ISSUE ABOUT THIS

11 CONFLICT UNTIL AFTER THE SETTLEMENT PROCESS. IN 2015 I

12 THINK THERE WAS SOME SENTIMENT THAT IT WANTED TO SEE THE

13 -- THAT PHASE OF THE LITIGATION THROUGH WITHOUT UPSETTING

14 THE--

15 THE COURT: WITHOUT A SUCCESSFUL OUTCOME, I

16 SUSPECT, AND WE'RE VERY SATISFIED WITH THE LEAD THAT

17 DISTRICT 40 WAS TAKING IN THIS LITIGATION. FROM THE

18 BENCH, AS I RECALL THE COURSE OF THE LITIGATION HERE,

19 THERE WERE SEVERAL PLAYERS WHOSE COUNSEL DID, IN FACT,

20 TAKE A LEAD POSITION WITH REGARD TO THEIR CLIENTS'

21 INTERESTS.

22 AND LET ME ASK ONE OTHER THING ABOUT THAT.

23 THERE WAS AN AGREEMENT BETWEEN AVEK AND DISTRICT 40 TO

24 COOPERATE IN THE PRESERVATION OF THE RIGHTS AND THE

25 PUBLIC WATER PRODUCERS, WAS THERE NOT?

26 MR. BANKS: THERE IS, AS I SEE IN THE RECORD, AN

27 AGREEMENT, BUT THE AGREEMENT, AT LEAST AS I READ IT,

28 DOESN'T REQUIRE AVEK TO COOPERATE IN ALL INSTANCES, AND


Page 18

1 OBVIOUSLY THE PARTIES HAVE ANTAGONISTIC POSITIONS IN THIS

2 LITIGATION.

3 THE COURT: AT LEAST AS TO A COUPLE OF THINGS BUT

4 NOT MANY.

5 MR. BANKS: AT LEAST AS TO THREE, YES.

6 THE COURT: SO AT THE TIME THAT YOU ENTERED INTO

7 THE SETTLEMENT THAT RESOLVED THE DISPUTE AS TO THOSE

8 ISSUES WITH REGARD TO DISTRICT 40 AND AVEK, WAS THERE

9 SOME DISCUSSION ABOUT WHETHER OR NOT NOW IS THE TIME TO

10 FILE THE DISQUALIFICATION REQUEST?

11 MR. BANKS: WELL, I THINK THE -- THE CONFLICTS, AS

12 I UNDERSTAND IT -- AGAIN, I'M AT A LITTLE BIT OF A

13 DISADVANTAGE BECAUSE I WASN'T THERE. YOU KNOW, I'M VERY

14 NEW TO THIS PARTICULAR LITIGATION. YOU HAVE BEEN LIVING

15 WITH IT FOR YEARS AND YEARS. THE CONFLICTS REALLY BECAME

16 MANIFEST IN AVEK'S MIND WITH THE SEPTEMBER 2015 BRIEFING

17 AND THE CONCLUSION, AS I UNDERSTAND IT, OF THE SETTLEMENT

18 PROCESS. THAT'S WHERE YOU SEE MR. MCELHANEY'S E-MAIL TO

19 DISTRICT 40'S COUNSEL COMPLAINING ABOUT AND NOTING THE

20 ANTAGONISTIC POSITIONS THAT THE PARTIES ARE MAKING IN

21 THEIR BRIEFING VIs-A-VIS RETURN RIGHTS; AND THEN AVEK'S

22 THEN GENERAL COUNSEL'S E-MAIL TO A BOARD MEMBER TRYING TO

23 EXPLAIN HOW WE GOT TO WHERE WE ARE; YOU KNOW, BEST, BEST

24 & KRIEGER, OF COURSE, TAKING THE POSITION THAT AT LEAST

25 EARLY IN THE LITIGATION, THEY DID NOT THINK THAT AVEK AND

26 DISTRICT 40 WOULD HAVE ANTAGONISTIC POSITIONS; AND,

27 INDEED, I BELIEVE THEY THOUGHT THAT AVEK WOULDN'T BECOME

28 INVOLVED IN THIS LITIGATION AT ALL. SUBSEQUENT TO THAT


Page 19

1 TIME, THEY PROVED THAT SUPPOSITION BEING CORRECT.

2 THE FACT OF THE MATTER, YOUR HONOR, IS

3 WE'RE STILL ON THE HORNS OF A VERY THORNY DILEMMA, AND I

4 UNDERSTAND THAT. IT'S ABSOLUTELY A CONCURRENT

5 REPRESENTATIONAL CONFLICT, AND THE LAW IS VERY CLEAR ON

6 WHAT SHOULD HAPPEN.

7 THE COURT: WELL, LET ME ASK YOU THIS. WE'VE GOT

8 AN APPEAL GOING ON BY SEVERAL OF THE PARTIES HERE. AVEK

9 IS NOT A PARTY, ARE THEY?

10 MR. BANKS: I'LL DEFER THAT QUESTION TO,

11 MR. MCELHANEY.

12

13

14 APPEAL.

15

16

17

THE COURT: MR. MCELHANEY.

MR. MCELHANEY: WE WILL BE PARTICIPATING IN THE

THE COURT: YOU ARE NOT APPEALING?

MR. MCELHANEY: WE'RE NOT APPEALING.

THE COURT: YOU ARE SUPPORTING THE JUDGMENT AND

18 THE STIPULATION, ARE YOU NOT?

19

20

MR. MCELHANEY: THAT IS CORRECT, YOUR HONOR.

THE COURT: AND THAT'S THE SAME POSITION THAT

21 DISTRICT 40 IS TAKING, ISN'T IT?

22 MR. MCELHANEY: THAT'S CORRECT. YOUR HONOR, IF I

23 MIGHT ANSWER THE ORIGINAL QUESTION, ATTEMPT TO ANSWER THE

24 ORIGINAL QUESTION.

THE COURT: SURE. 25

26 MR. MCELHANEY: WHEN AVEK DECLINED THE CONFLICT

27 WAIVER THAT WAS PROPOSED BY BB&K THROUGH MR. RIDDELL, ONE

28 OF ITS ATTORNEYS, WHO WAS THEN AVEK'S GENERAL COUNSEL,


Page 20

1 MR. RIDDELL THEREAFTER INDICATED IN SUBSTANCE THAT THE

2 MATTER WOULD BE RESOLVED, THE CONFLICT WOULD NOT BE A

3 PROBLEM, AS LONG AS THERE WAS INDEPENDENT OUTSIDE COUNSEL

4 REPRESENTING AVEK IN THE GROUNDWATER LITIGATION. OF

5 COURSE, THAT DID NOT END THE CONFLICT. THE CONFLICT

6 CONTINUED TO EXIST.

7 NONETHELESS, AVEK RELIED UPON THE LEGAL

8 ADVICE PROVIDED BY ITS GENERAL COUNSEL BB&K TO

9 MR. RIDDELL, AND THAT'S THE REASON WHY NO FURTHER

10 OBJECTION WAS MADE THEREAFTER BY AVEK TO CONTINUE THE

11 REPRESENTATION OF DISTRICT 40 BY BB&K.

12 THEN AS WE GOT CLOSE TO THE END OF THIS

13 LITIGATION, A FILE BRIEF BEING FILED --

14 THE COURT: IF YOU ARE ON COURT CALL, WE CAN HEAR

15 YOU. PLEASE MUTE YOUR PHONE. MUTE IT.

16 MR. MCELHANEY: AS WE WERE GETTING NEAR THE END IN

17 SEPTEMBER, OCTOBER 2015, AND FINAL BRIEFS WERE BEING

18 FILED, A NEW AVEK BOARD MEMBER, HIMSELF AN ACCOMPLISHED

19 ATTORNEY, NOTICED THE CONFLICTING POSITIONS THAT WERE

20 CONTINUING TO BE TAKEN BY AVEK ON THE ONE HAND AND BB&K'S

21 OTHER CLIENT, DISTRICT 40, ON THE OTHER HAND. HE RAISED

22 THE CONFLICT ISSUE AGAIN AT THAT TIME.

23 AVEK THEN RETAINED CONFLICTS COUNSEL TO

24 ADVISE IT FURTHER ON THE MATTER. THAT LED TO THE JANUARY

25 2016 LETTER TO BE BB&K DEMANDING THAT IT RECUSE ITSELF,

26 WHICH REQUEST WAS CURTLY DECLINED BY BB&K, AND THAT THEN

27 RESULTED IN THE MOTION THAT'S PENDING BEFORE THE COURT AT

28 THIS TIME.


Page 21

1 SO I THINK THE ANSWER TO THE QUESTION IS

2 THAT AVEK RELIED UPON THE LEGAL ADVICE THAT IT RECEIVED

3 FROM BB&K'S COUNSEL THAT A CONFLICT WOULD BE RESOLVED.

4 THERE WOULDN'T BE A PROBLEM AS LONG AS THERE WAS OUTSIDE

5 INDEPENDENT COUNSEL REPRESENTING AVEK IN THE GROUNDWATER

6 LITIGATION.

7 THAT, HOWEVER, WAS NOT CORRECT. THAT DID

8 NOT CURE THE CONFLICT. BUT IT DOES EXPLAIN WHY AVEK IN

9 RELIANCE UPON THE COUNSEL -- BB&K'S ADVICE AS ITS LEGAL

10 COUNSEL DID NOT FURTHER OBJECT THEREAFTER.

11 AND THE COURT NEEDS TO REMEMBER THAT BB&K

12 REMAINED AS GENERAL COUNSEL UNTIL DECEMBER OF 2015, AND

13 THAT'S WHEN AVEK THEN WENT TO OUTSIDE COUNSEL CONFLICT

14 SPECIALISTS TO ADVISE THEM FURTHER ON THE MATTER AND THEN

15 PROCEEDED BASED UPON THE ADVICE IT THEN RECEIVED FROM

16 CONFLICTS COUNSEL.

17 SO I THINK THAT'S THE EXPLANATION AND THE

18 ANSWER TO THE QUESTION ORIGINALLY ANSWERED OR ASKED.

19 EXCUSE ME.

20 THE COURT: OKAY. THAT MAY EXPLAIN WHY THEY

21 DIDN'T DO ANYTHING, BUT I'M NOT SURE THAT THAT EXCUSES

22 THEIR FAILURE.

23 MR. MCELHANEY: WELL, I'D ONLY MENTION,

24 YOUR HONOR, YOU KNOW, AS MR. BANKS POINTED OOT AND WE'LL

25 POINT OUT FOR SURE THAT CLIENT DELAY IN RAISING THE ISSUE

26 IS NOT A FACTOR TO BE CONSIDERED WHEN YOU HAVE A CONFLICT

27 DURING CONCURRENT REPRESENTATION, WHICH IS PRECISELY WHAT

28 WE HAD HERE.


Page 22

1

2

3

THE COURT: HAD.

MR. MCELHANEY: THAT'S CORRECT.

MR. BANKS: AND STILL HAVE, YOUR HONOR.

4 THE COURT: WELL, THAT'S THE QUESTION. IF THE

5 APPEAL IS AFFIRMED, THERE IS NO CONFLICT, IS THERE?

6 MR. BANKS: THE POINT ISN'T WHAT MIGHT HAPPEN IN

7 THE FUTURE, YOUR HONOR. THE POINT IS WHAT HAPPENED IN

8 THE PAST. AND HERE IT'S UNDISPUTED THAT BB&K REPRESENTED

9 TWO CLIENTS WITH ANTAGONISTIC INTERESTS IN THE

10 LITIGATION. AND IT'S -- YOU REALLY COULDN'T SEE A

11 CLEARER CONCURRENT CLIENT CONFLICT. IT IMPLICATES BB&K'S

12 OBLIGATION OF DISLOYALTY, BOTH CLIENTS.

13 AND IN THIS INSTANCE, BEST, BEST & KRIEGER

14 IS A FINE LAW FIRM. I'VE WORKED WITH THEM IN THE PAST.

15 WE ALL HAVE. BUT IN THIS INSTANCE THEY DROPPED THE BALL,

16 AND THE LAW IS VERY CLEAR AS TO WHAT NEEDS TO HAPPEN.

17 AND DELAY ISN'T A FACTOR IN A CONCURRENT CONFLICT SYSTEM.

18 IT CAN'T BE BECAUSE THE DUTY OF LOYALTY IS IMPLICATED.

19 AND WE LOOKED AGAIN. WE HAVEN'T FOUND A

20 CASE IN CALIFORNIA THAT HAS DIRECTLY HELD THAT IMPLIED

21 CONSENT, WHICH REALLY IS WHAT DELAY IS, COULD BE A FACTOR

22 IN THIS SORT OF CONFLICT.

23 THE COURT: WELL, THERE IS A LOT OF LANGUAGE IN

24 SOME OF THE CASES THAT CAST DOUBT ON THE PER SE NATURE OF

25 THE DISQUALIFICATION. IT'S ALL DICTA. AND IT CERTAINLY

26 IS NOT CLEARLY ON POINT, BUT IT DOES EXPRESS THE

27 INTENTIONS OF SOME OF THE JUDGES WHO HAVE LOOKED AT THE

28 CIRCUMSTANCES TO DETERMINE WHETHER OR NOT IT'S ALWAYS


Page 23

1 GOING TO BE PER SE IN A CONCURRENT OR CONTEMPORANEOUS

2 REPRESENTATION. BUT SOMETIMES COURT'S RULE ON SOMETHING

3 OTHER THAN -- OR I SHOULD SAY ON DICTA, BUT WE'LL SEE.

4 LET ME HEAR FROM DISTRICT 40'S COUNSEL.

5 MR. DUNN: I'LL START FIRST, YOUR HONOR, MR. DUNN,

6 ON THE FACTUAL SCENARIO. I'M NOT QUITE SURE THE TIMING

7 OF THE EVENTS IS AS WAS EXPLAINED. THE DECLARATION THAT

8 I FILED IN OPPOSITION TO THIS MOTION WAS AN EFFORT TO

9 SORT OF CLEARLY LAY OUT THE CHRONOLOGY. WITHOUT GOING

10 THROUGH THAT ENTIRE DECLARATION BUT ADDRESSING WHAT MIGHT

11 BE THE COURT'S QUESTION IS AS THE COURT IS AWARE, THERE

12 WAS IN TERMS OF THE TIMING THE SETTLEMENT AGREEMENT,

13 WHICH WAS ULTIMATELY APPROVED BY THE COURT, FOLLOWED BY

14 THE COURT'S OWN PHYSICAL SOLUTION. AND IT WAS AFTER THAT

15 POINT THAT THE PARTIES HAD REACHED A SETTLEMENT THAT AVEK

16 DECIDED TO TERMINATE THE RELATIONSHIP WITH MY LAW FIRM

17 BEST, BEST & KRIEGER. SO THAT HAPPENED POST SETTLEMENT.

18 AND THEN THERE HAPPENED TO BE POST-SETTLEMENT

19 PROCEEDINGS, POST-JUDGMENT PROCEEDINGS. THE PHYSICAL

20 SOLUTION, OF COURSE, HAS NOW BEEN APPROVED BY THE COURT.

21 ONE OF THE MOST STRIKING EVENTS THAT STANDS

22 OUT IN OUR VIEW IS THAT AFTER THE PARTIES ENTERED INTO

23 THE SETTLEMENT AGREEMENT AND AFTER AVEK TERMINATED THAT

24 RELATIONSHIP WITH BEST, BEST & KRIEGER, WHICH BY THE WAY,

25 THERE IS NOTHING IN THE MOVING PAPERS THAT INDICATES

26 THERE IS NO DECLARATION, NOTHING TO SUPPORT ANY

27 ALLEGATION, AND THERE IS NO ALLEGATION MADE THAT THERE

28 WAS CONFIDENTIAL INFORMATION SHARED WITH MR. RIDDELL.


Page 24

1 NONE OF THAT IS BEFORE THIS COURT.

2 BUT, ANYWAY, LEADING UP TO WHERE I WANT TO

3 GET IS AFTER THIS WHOLE SCENARIO, WE HAVE THE SETTLEMENT

4 AGREEMENT. NOW BEST, BEST & KRIEGER IS NO LONGER

5 REPRESENTING AVEK AT ANY LEVEL, EVEN THOUGH, I THINK, FOR

6 A DECADE THEY HAD BEEN INDEPENDENT COUNSEL. THERE WAS A

7 FILING THAT DISTRICT 40 SUBMITTED TO THIS COURT. I DON'T

8 EVEN REMEMBER THE EXACT DETAIL OF THE FILING. IT'S IN

9 THE DECLARATION.

10 BUT WHAT WAS SO STRIKING IS AT THAT POINT

11 AVEK FILED A JOINDER. AVEK FILED A WRITTEN JOINDER

12 IT'S IN THE COURT'S RECORD SUPPORTING BEST, BEST &

13 KRIEGER'S FILING ON BEHALF OF DISTRICT 40. AND WE HAD

14 ALREADY RECEIVED THE LETTER AT THAT POINT FROM -- FROM

15 COUNSEL FOR AVEK.

16 AND I HAVE TO TELL YOU, WE LOOKED AT THAT,

17 AND WE LOOKED AT EACH OTHER, AND WE JUST ASKED OURSELVES

18 ARE YOU KIDDING ME? ARE YOU REALLY KIDDING ME? YOU ARE

19 GOING TO PUT ON THE COURT RECORD NOW THAT YOU ARE GOING

20 TO OBJECT TO THIS BUT THEN SUPPORT IN A JOINDER THE

21 FILING THAT WE DID HERE?

22 AND I THINK THAT'S PROBABLY THE MOST

23 TELLING OR AT LEAST THE MOST RECENT RELEVANT FACT HERE IS

24 THAT AFTER THIS CULMINATION OF THIS LONG HISTORY OF

25 EVENTS IN THIS CASE, THE COURT IS FAMILIAR WITH THE

26 SETTLEMENT, THE COURT APPROVAL OF THE SETTLEMENT, THE

27 COURT'S PHYSICAL SOLUTION, THEN AVEK TERMINATES THE

28 RELATIONSHIP, EVEN THOUGH THEY'VE HAD THE BRUNICK LAW


Page 25

1 FIRM FOR A DECADE AT LEAST REPRESENTING THEM, AND THEN WE

2 KIND OF GO NOW INTO SORT OF POST-JUDGMENT PROCEEDINGS

3 INVOLVING THE APPEAL MOSTLY. THERE IS THIS JOINDER.

4 I THINK WHAT TROUBLES ME THE MOST -- AND

5 I'LL DEFER HERE BECAUSE MR. COATES IS HERE TO ARGUE THE

6 MOTION. I'M HERE TO SUPPORT THE FACTUAL SIDE OF THIS.

7 BUT WHAT TROUBLES ME -- ONE OF THE THINGS THAT TROUBLES

8 ME THE MOST ABOUT WHAT I HEAR FROM AVEK'S COUNSEL, AND I

9 UNDERSTAND HE'S NOT FAMILIAR WITH THIS CASE, IS THIS

10 CONCEPT THAT SOMEHOW THE PHYSICAL SOLUTION THAT'S BEEN

11 APPROVED BY THIS COURT LEAVES ISSUES UNDECIDED. WE ARE

12 GREATLY CONCERNED WITH THAT CONTENTION. IT IS FALSE.

13 THAT PHYSICAL SOLUTION IS A COMPREHENSIVE ADJUDICATION OF

14 THE PARTIES' WATER RIGHTS. IT HAS TO BE UNDER THE

15 MC CARRAN AMENDMENT.

16 FOR AVEK NOW TO BE HERE IN COURT AND MAKE A

17 REPRESENTATION THAT SOMEHOW THERE IS STILL ONGOING WATER

18 RIGHTS DISPUTES HERE, THIS COURT KNOWS THAT'S PATENTLY

19 FALSE, AND THAT IS AN INDIRECT, IF NOT DIRECT ATTACK ON

20 THE COMPREHENSIVE NATURE OF THIS JUDGMENT. AND WE ARE

21 VERY CONCERNED THAT THIS NOT TURN IN TO BE A

22 BEHIND-THE-SCENES SORT OF BACKDOOR ATTACK ON THIS

23 JUDGMENT BECAUSE ANY REPRESENTATION BY COUNSEL HERE TODAY

24 THAT THERE ARE UNRESOLVED WATER RIGHTS ISSUES BETWEEN ANY

25 OF THE PARTIES TO THIS JUDGMENT IS NOT CORRECT. THAT'S

26 PATENTLY FALSE.

THE COURT: OKAY. 27

28 MR. COATES: I'LL SPEAK TO THE LEGAL ISSUES,


Page 26

1 YOUR HONOR, AND THAT IS THE ISSUE WHETHER THERE IS

2 AUTOMATIC DISQUALIFICATION. AND I THINK THE KEY CASE TO

3 LOOK AT ON THIS IS THE SPEEDEE OIL CASE BECAUSE IT IS A

4 CONCURRENT REPRESENTATION CASE, AND THE COURT MAY RECALL

5 THERE, IT WAS A PARTY CONSULTED SOMEONE WHO WAS OF

6 COUNSEL TO ANOTHER LAW FIRM THAT WAS SIMULTANEOUSLY BEING

7 HIRED BY THE OPPOSING PARTY. THE PERSON CONSULTED THE OF

8 COUNSEL, IMMEDIATELY FIRED HIM, BUT THEN ALSO MOVED FOR

9 DISQUALIFICATION FROM THE FIRM OF WHICH HE WAS

10 AFFILIATED. AND IN HOLDING THAT THERE WAS

11 DISQUALIFICATION, THE SUPREME COURT MADE SEVERAL KEY

12 RULINGS HERE.

13 FIRST, THAT IN A DISQUALIFICATION SETTING,

14 IT'S AN EQUITABLE CONSIDERATION FOR THE COURT, THAT THE

15 COURT HAS OTHER INTERESTS. AND A NUMBER OF THE CASES

16 THEY CITE, THEY TALK ABOUT AUTOMATIC DISQUALIFICATION,

17 THIS FEDERAL DISTRICT COURT CASE, THE COLLINS WEIGER

18 (PH.) CASE AND SOME -- THE FLATT VERSUS SUPERIOR COURT,

19 CALIFORNIA SUPREME COURT CASE. NEITHER OF THOSE IS A

20 DISQUALIFICATION CASE. FLATT IS A MALPRACTICE CASE. THE

21 OTHER IS A MALPRACTICE CASE, I BELIEVE, ALSO OR AT LEAST

22 A DISPUTE OVER FEES.

23 IN THE DISQUALIFICATION CONTEXT, THE

24 SUPREME COURT NOTED IN SPEEDEE OIL, YOU HAVE TO WEIGH

25 VARIOUS INTERESTS, AND ONE OF THE INTERESTS IS THE PARTY

26 WHOSE COUNSEL IS GOING TO BE DISQUALIFIED. AND THAT'S

27 WHY IT'S INHERENTLY EQUITABLE AND WHY I THINK THERE IS NO

28 RULE OF AUTOMATIC DISQUALIFICATION.


Page 27

1 AND IN SPEEDEE OIL THE COURT WAS CAREFUL TO

2 SAY, LOOK, YOU DON'T APPLY THIS IN LITERALIST FASHION, IN

3 TECHNICAL FASHION. YOU ALWAYS HAVE TO GO DOWN AND WEIGH

4 THE EQUITIES OF THE PARTIES. AND, OF COURSE, THE

5 MAJORITY OF SPEEDEE OIL SAYS, OKAY, LET'S LOOK AT THE

6 DUTY OF LOYALTY, HOW IS THAT THREATENED HERE BY THE

7 CONSULTATION WITH THE OF COUNSEL, AND THE MAJORITY SAYS

8 THAT'S NOT REALLY A FACTOR. THAT'S NOT REALLY A FACTOR

9 BECAUSE HE TALKED TO THE OF COUNSEL FOR A SHORT WHILE AND

10 IMMEDIATELY FIRED HIM. THEN THEY WENT DOWN AND THEY

11 SAID, ON THE OTHER HAND, BECAUSE OF THE PRESUMPTION OF

12 EXCHANGE OF ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS,

13 THAT WOULD WARRANT DISQUALIFICATION.

14 BEAR IN MIND, JUSTICE MOSK FILES A

15 CONCURRING OPINION, DOESN'T JOIN THE MAJORITY, PRECISELY

16 BECAUSE HE SAYS WHY ARE YOU TALKING ABOUT ANALYZING THE

17 IMPACT ON THE DUTY OF LOYALTY? WHY ARE YOU ANALYZING

18 WHETHER CONFIDENTIAL COMMUNICATIONS HAVE BEEN CONVEYED?

19 IT'S AUTOMATIC DISQUALIFICATION, BUT THE MAJORITY WENT

20 THROUGH THOSE FACTORS.

21 AND I THINK THE COURT HAS HIT ON HERE THAT

22 IF YOU GO THROUGH THE FACTORS HERE, YOU HAVE THE VERY

23 SORT OF INTOLERABLE DELAY MUCH MORE THAN THE CASES IN THE

24 -- NOT CONCURRENT REPRESENTATION, BUT THE CONSECUTIVE

25 REPRESENTATION CASES. THEY ARE CASES THAT DENY

26 DISQUALIFICATION FOR AS LITTLE AS 14 MONTHS DELAY OR 17

27 MONTHS DELAY.

28 HERE WE HAVE A FULL DECADE OF DELAY. THEY

Veri text Legal Solutions 866 299-5127

Page 28

1 WERE GIVEN A LETTER SAYING WE THINK THERE IS A CONFLICT

2 HERE. PLEASE WAIVE IT. FOR THE NEXT TEN YEARS, THEY

3 ESSENTIALLY RODE ON THE COATTAILS OR HELD PARTLY ON THE

4 COATTAILS OF THE WORK DONE BY BBK FOR DISTRICT 40.

5 AND AT THIS POINT IN THE LITIGATION,

6 DISTRICT NO. 40 IS GOING TO SUFFER MASSIVE HARM BECAUSE

7 THEY, ACCORDING TO AVEK, HAVE TO GO OUT AND GET NEW

8 COUNSEL WHO HAS TO ESSENTIALLY RELEARN THE MASSIVE RECORD

9 IN THIS CASE FOR PURPOSES OF RESPONDING TO THE APPEAL,

10 AND THAT IS -- THE DISTRICT ESTABLISHES IT'S HUGELY

11 PREJUDICIAL FROM A COST STANDPOINT, ALSO FROM A LOGISTIC

12 STANDPOINT. IT'S ALREADY A LITIGATION THAT'S DRAGGED ON

13 A LONG TIME. NOW NEW COUNSEL IS GOING TO HAVE TO GET UP

14 TO SPEED.

15 SO THE PREJUDICE TO DISTRICT NO. 40 HERE IS

16 OVERWHELMING FROM THE DELAY. YOU LOOK AT THE PREJUDICE

17 TO AVEK, YOU CAN'T SEE WHAT THAT IS BECAUSE THERE ISN'T

18 ANY. AS MR. DUNN HAS INDICATED, THIS IS WHAT WE ALL BEEN

19 WRAPPED UP BY SETTLEMENT. THERE IS NO EXCHANGE OF

20 CONFIDENTIAL COMMUNICATIONS CONCERNING THIS LITIGATION.

21 MR. DUNN, I THINK, TESTIFIES IN PARAGRAPH 53 OF HIS

22 DECLARATION TO THAT EFFECT.

23 EVEN IF THERE WAS A PRESUMED EXCHANGE OF

24 CONFIDENTIAL INFORMATION, THAT'S BEEN WAIVED. THAT'S

25 OCCURRED OVER A FULL DECADE. IT WOULD BE THE SAME AS

26 SOMEONE SENDING YOU CONFIDENTIAL COMMUNICATIONS, AND THEN

27 TEN YEARS LATER SAYING YOU KNOW WHAT WE SENT YOU, WE WANT

28 TO TAKE THAT BACK. YOU CAN'T DO THAT. THOSE ARE


Page 29

1 EQUITABLE PRINCIPLES. THEY ARE PRINCIPLES OF WAIVER.

2 AND THE PREJUDICE TO DISTRICT NO. 40 IS EXTREME.

3 IN TERMS OF THE PUBLIC INTEREST IN TERMS OF

4 HOW ATTORNEYS LOOK AT THE DUTY OF LOYALTY, WHAT HAVE YOU,

5 THIS IS WHERE WE COME IN ALSO IN SPEEDEE OIL, AND THE

6 COURT'S STATEMENT, HEY, WE DON'T APPLY THINGS LITERALLY,

7 BECAUSE I DON'T THINK IT LOOKS GOOD TO THE PUBLIC IF YOU

8 HAVE A PARTY CONSPICUOUSLY SIT ON SOMETHING FOR TEN

9 YEARS, TAKE ADVANTAGE OF IT, AND THEN RAISE IT AS A

10 TACTICAL MATTER AT THE ELEVENTH HOUR. I THINK THAT IF

11 ANYTHING HERE, THE PUBLIC INTEREST IS SERVED BY DENYING

12 DISQUALIFICATION.

13 THE COURT: ALL RIGHT. THANK YOU.

14 MR. BANKS: YOUR HONOR, LET ME RESPOND CERTAINLY

15 TO COUNSEL'S LEGAL ARGUMENTS. COUNSEL IS READING MUCH,

16 MUCH MORE INTO THE SPEEDEE OIL DECISION THAN IS ACTUALLY

17 THERE. SPEEDEE FOLLOWED THE ANALYSIS IN FLATT, AND

18 FLATT, OF COURSE, SET FORTH THE PER SE DISQUALIFICATION

19 RULE WITH ONE LIMITED EXCEPTION WHERE THERE ARE WRITTEN

20 INFORMED CONFLICT WAIVERS, WHICH WE DON'T HAVE HERE. AND

21 THE FLATT ANALYSIS, AGAIN, ENDORSED IN SPEEDEE HAS BEEN

22 FOLLOWED IN CASE AFTER CASE AFTER CASE IN MATTERS OF

23 CONCURRENT REPRESENTATION.

24 IT MATTERS NOT WHETHER CONFIDENTIAL

25 INFORMATION, IN FACT, WAS TRANSMITTED. IT IS PRESUMED

26 UNDER THE LAW TO HAVE BEEN TRANSMITTED. THAT MUCH IS

27 TRUE, AND IT'S LIKEWISE CLEAR IN FLATT. SO TRYING TO

28 TAKE THIS SITUATION AND APPLY THE EQUITABLE CONCERNS THAT


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1 WOULD BE APPLIED IN A SUCCESSIVE ATTORNEY-CLIENT CONFLICT

2 JUST DOESN'T FIT.

3 AND THE REALITY IS WE DO -- AND I'LL LET,

4 AGAIN, MR. MCELHANEY SPEAK TO THIS. WE DO HAVE CONCERNS

5 ABOUT ONGOING ISSUES IN THE WATERMASTER PROCESS.

6 AND, FINALLY, THE NOTION THAT THIS MOTION

7 WAS FILED FOR TACTICAL REASONS IS JUST HYPERBOLE. THERE

8 ARE NO TACTICS HERE THAT WE HAVE ADVANCED, AND THERE IS

9 NOTHING IN THE RECORD TO THAT EFFECT.

10 THE SIMPLE FACT IS THAT AVEK IS REALLY

11 TIRED OF SEEING ITS FORMER GENERAL COUNSEL OPPOSITE IT IN

12 LITIGATIONS, PARTICULARLY AS -- I'M SORRY, OPPOSITE IT IN

13 -- ON ISSUES THAT HAVE ARISEN AND LIKELY WILL ARISE IN

14 THE WATERMASTER SCENARIO.

15 MR. MCELHANEY: IF I CAN JUST TAG IN, YOUR HONOR,

16 RESPONDING TO MR. DUNN'S COMMENT ABOUT THERE NOT BEING

17 ANY WATER RIGHT DISPUTES BETWEEN AVEK AND DISTRICT 40 AT

18 THIS TIME. AVEK FULLY SUPPORTS THE JUDGMENT. AVEK IS

19 PREPARED TO DEFEND THE JUDGMENT ON APPEAL. BUT POST

20 JUDGMENT THERE HAVE BEEN STARK CONFLICTS BETWEEN AVEK AND

21 DISTRICT 40. YOU HAD EARLIER THIS MORNING A GOOD EXAMPLE

22 OF EXACTLY THAT WITH -- WHERE A BB&K ATTORNEY WAS ARGUING

23 AND HAD ARGUED BY BRIEFS THAT THE PUBLIC WATER SUPPLIER

24 SHOULD BE ALLOWED TO PARTICIPATE IN THE ELECTION OF THE

25 TWO LANDOWNER REPRESENTATIVES ON A WATERMASTER BOARD.

26 AVEK SUPPORTED THE MOTION FOR APPROVAL OF THE RULES WHICH

27 PROVIDE -- AND THE LANDOWNER POSITION IS THAT THE PUBLIC

28 WATER SUPPLIER SHOULD NOT BE PERMITTED TO DO SO. SO THIS


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1 IS JUST ANOTHER EXAMPLE OF A CONFLICT IF THIS CONTINUES,

2 AND WE EXPECT IT WILL CONTINUE.

3 THE COURT: WELL, THAT SITUATION REALLY IS MORE IN

4 THE NATURE OF THE CONSECUTIVE REPRESENTATION ISSUE, ISN'T

5 IT, SINCE THEY DON'T REPRESENT YOU AT THE PRESENT TIME?

6 MR. BANKS: THE CONSECUTIVE IF YOU HAVE A

7 CONCURRENT CONFLICT, YOUR HONOR, THE FACT THAT THE CLIENT

8 DISCHARGED THE LAWYER DOESN'T MORPH THAT INTO A

9 CONSECUTIVE REPRESENTATION SCENARIO. IT STILL REMAINS A

10 CONCURRENT CONFLICT.

11 THE COURT: WELL, IT DOES, BUT WE'RE TALKING ABOUT

12 A CIRCUMSTANCE NOW THAT IS AN EQUIVALENT, I'M GOING TO

13 CALL IT A MORAL EQUIVALENT, IF YOU WILL, IF NOT A LEGAL

14 EQUIVALENT, OF A CONSECUTIVE REPRESENTATION SITUATION, IT

15 SEEMS TO ME. PARTIES CAN -- HAVE BEEN IN CONFLICT AT

16 EARLIER TIMES RESOLVED THEIR CONFLICTS AND THEN HAVE

17 SEPARATE COUNSEL, AND THAT'S WHAT'S REALLY HAPPENED HERE

18 IN A SENSE. AND THE ISSUE THAT MR. MCELHANEY IS

19 DESCRIBING REALLY FALLS WITHIN, THIS SEEMS TO ME, THAT

20 TYPE OF A SITUATION.

21 THIS IS NOT AN EASY CASE. NOTWITHSTANDING

22 SOME OF THE LANGUAGE USED BY SOME COURTS, THERE IS A LOT

23 OF DICTA. I THINK JUSTICE MOSK'S POSITION WAS PRETTY

24 CLEAR, BUT HE WAS CONCURRING. HE WAS NOT TRULY STATING

25 THAT AS PART OF THE RATIO DECIDENDI IN THE CASE. SO, YOU

26 KNOW, I TAKE IT THAT HARD CASES MAKE BAD LAW SOMETIMES.

27 SO WE'LL SEE.

28 IS THERE ANY FURTHER ARGUMENT FROM ANYBODY


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1 THAT WISHES TO ADDRESS THE COURT ON THIS ISSUE?

2

3

MR. BANKS: NONE FROM AVEK, YOUR HONOR.

THE COURT: WELL, I'M GOING TO GIVE YOU A WRITTEN

4 DECISION AND TRY TO EXPLAIN MY REASONING, AND YOU MAY

5 OBVIOUSLY DO WITH IT AS YOU WISH.

6 ANYTHING ELSE?

7

8

9

10

MR. MCELHANEY: THANK YOU, YOUR HONOR.

MR. BANKS: NO, YOUR HONOR. THANK YOU.

MR. COATES: NO, YOUR HONOR.

THE COURT: THERE WAS ALSO AN OBJECTION TO

11 MR. ARIKI'S DECLARATION.

12 MR. BANKS: YOUR HONOR, WE WILL -- WE WILL

13 STIPULATE TO THE RELIEF THAT DISTRICT 40 SOUGHT IN ITS

14 EX PARTE APPLICATION.

15

16

THE COURT: OKAY.

MR. MCELHANEY: THERE WERE OTHER OBJECTIONS TO

17 MR. ARIKI'S DECLARATION.

18 THE COURT: THE COURT IS AWARE OF THE HEARSAY

19 NATURE OF SOME OF THOSE OBJECTIONS

20 MR. MCELHANEY: THANK YOU.

21 THE COURT: BUT UNDER THE CIRCUMSTANCES, I

22 DON'T THINK IT'S NECESSARY FOR THE COURT TO MAKE EXPRESS

23 RULINGS ON THOSE OBJECTIONS. SO I'M NOT GOING TO DO IT.

24

25

26

27

28

MR. MCELHANEY: THANK YOU, YOUR HONOR.

THE COURT: ALL RIGHT. THANK YOU, VERY MUCH.

(THE PROCEEDINGS CONCLUDED.)


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1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 3 DEPARTMENT 222 HON. JACK KOMAR, JUDGE 4 5 COORDINATION PROCEEDING

SPECIAL TITLE (RULE 550(B)) 6

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ANTELOPE VALLEY GROUNDWATER CASES

INCLUDED ACTIONS:

LOS ANGELES COUNTY WATERWORKS DISTRICT NO. 40 V. DIAMOND FARMING CO., SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, CASE NO. BC325201;

LOS ANGELES COUNTY WATERWORKS 12 DISTRICT NO. 40 V. DIAMOND FARMING

CO., SUPERIOR COURT OF CALIFORNIA, 13 COUNTY OF KERN, CASE NO.

S-1500-CV254-348; 14

WM. BOLTHOUSE FARMS, INC. V. CITY 15 OF LANCASTER, DIAMOND FARMING CO.

V. CITY OF LANCASTER, DIAMOND 16 FARMING CO. V. PALMDALE WATER

DIST., SUPERIOR COURT OF 17 CALIFORNIA, COUNTY OF RIVERSIDE,

CASE NOS. RIC353840, RIC344436, 18 RIC344668;

19 REBECCA LEE WILLIS V. LOS ANGELES, COUNTY WATERWORKS DISTRICT NO. 40,

20 ET AL., SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES,

21 CASE NO. BC364533;

22 RICHARD WOOD V. LOS ANGELES COUNTY WATERWORKS, DISTRICT NO. 40,

23 ET AL., SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES,

24 CASE NO. BC391869

25 26

JUDICIAL COUNCIL COORDINATION PROCEEDING NO. 4408

SANTA CLARA CASE NO. 1-05-CV-049053

REPORTER'S CERTIFICATE

27 I, SHAWNDA R. DORN, OFFICIAL REPORTER 28 PRO TEMPORE OF THE SUPERIOR COURT OF THE STATE OF


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1 CALIFORNIA, FOR THE COUNTY OF LOS ANGELES, DO HEREBY

2 CERTIFY THAT I DID CORRECTLY REPORT THE PROCEEDINGS

3 CONTAINED HEREIN AND THAT THE FOREGOING PAGES 1 THROUGH

4 26, COMPRISE A FULL, TRUE AND CORRECT TRANSCRIPT OF THE

5 PROCEEDINGS AND TESTIMONY TAKEN IN THE MATTER OF THE

6 ABOVE-ENTITLED CAUSE ON DECEMBER 7, 2016.

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DATED THIS 20TH DAY OF DECEMBER, 2016.

SHAWNDA R. DORN, CSR NO. 11387, RPR, CCRR, CLR

OFFICIAL REPORTER PRO TEMPORE


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BANKS & WATSON CASE NAME: ANTELOPE VALLEY GROUNDWATER CASES

2 COURT: Santa Clara County Superior Court

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4

CASE NO: CGC-13-533134 (JCCP No. 4408)

PROOF OF SERVICE

5 STATE OF CALIFORNIA )

6 COUNTY OF SACRAMENTO ) ss. )

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At the time of service, I was over 18 years of age and not a party to this action. My business address is 901 F Street, Suite 200, Sacramento, California 95814. My electronic address is epoma@bwfirm.com.

On February 2, 2017, I served a copy of:

ANTELOPE VALLEY EAST - KERN WATER AGENCY'S NOTICE OF APPEAL AND NOTICE DESIGNATING RECORD ON APPEAL

12 . on the interested parties in this action served in the following manner:

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( ./) BY ELECTRONIC FILING - I caused the document(s) listed above to be transmitted via Odyssey File & Serve to all parties appearing on the electronic services list for the Antelope Valley Groundwater matter; proof of electronic filing through Odyssey File & Serve is then· printed and maintained in our office. Electronic service is complete at the time of transmission.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 2,2017, at Sacramento, California. '

Esther Poma

{00081027.DOCX; I}

PROOF OF SERVICE