WESTLANDS WATER DISTRICT, Plaintiff and Appellant, v. ALL PERSONS INTERESTED etc., et al., Defendants and Respondents.
F083632 & F084202 (Super. Ct. No. 19CECG03887)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 8/7/23
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Stradling Yocca Carlson & Rauth, Allison E. Burns and Douglas S. Brown for Plaintiff and Appellant.
Freeman Firm, Thomas H. Keeling; Law Office of Roger B. Moore, Roger B. Moore; Mohan Harris Ruiz and S. Dean Ruiz for Defendants and Respondents County of San Joaquin, County of Trinity, Central Delta Water Agency and South Delta Water Agency.
Law Offices of Stephan C. Volker, Stephan C. Volker, Alexis E. Krieg, Stephanie L. Clarke and Jamey M.B. Volker for Defendants and Respondents North
Law Office of Adam Keats, Adam Keats; and John Buse for Defendants and Respondents California Water Impact Network, California Indian Water Commission, AquAlliance, Planning and Conservation League, and Center for Biological Diversity.
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OPINION
“An action under the validation statutes permits a public agency to obtain a judgment upholding its handling of an agency matter.” (Davis v. Fresno Unified School Dist. (2023) 14 Cal.5th 671, 684.) Westlands Water District (Westlands) appeals from a judgment of dismissal entered in a validation action filed pursuant to, inter alia,
We say “anticipated contract” because Westlands filed the action several months prior to executing a finalized agreement with the United States. Westlands presented the superior court with a working draft of the contract, requesting a judicial decree validating (1) the authorization given by its governing body to execute a contract “in substantially the [same] form” at a later date and (2) the legality and enforceability of the contract under California law. Several public entities, nonprofit organizations, public interest groups, and others participated in the lawsuit by opposing any and all such relief, making them the defendants in the action. The federal government is not a party to the case.1
The superior court declined to grant relief, and ultimately dismissed Westlands’ validation action, for multiple reasons. Most pertinently, the draft was found to be materially deficient in its failure to specify Westlands’ financial obligations under the anticipated contract. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Overview
“California’s two largest rivers, the Sacramento and the San Joaquin Rivers, meet to form a delta (California Delta or Delta) near the City of Sacramento, and their combined waters, if not diverted, flow through the Delta, Suisun Bay, and San Francisco Bay, to the Pacific Ocean. The flow of water through this region, commonly known as the Bay-Delta, forms the largest estuary on the West Coast of the United States. It is also the hub of California’s two largest water distribution systems, supplying drinking water for two-thirds of California’s residents and irrigation water for seven million acres of agricultural land.” (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1151.)
“In an effort to manage the increasing and conflicting demands placed on the water flowing through the [Bay-Delta], California and the United States have embarked on two massive projects. First, in 1933, California proposed the Central Valley Project (CVP), a plan to transfer water from the Sacramento River to water-deficient areas in the San Joaquin Valley and from the San Joaquin River to the southern regions of the Central Valley.” (San Luis & Delta-Mendota Water Authority v. Jewell (9th Cir. 2014) 747 F.3d 581, 594.) “In 1951, California approved what is known as the State Water Project,” which primarily “serves the domestic water needs” of Southern California. (Ibid.)
Due to “pervasive unfavorable economic conditions during the Great Depression, California turned to the federal government for assistance to finance and construct the CVP.” (Westlands Water Dist. v. U.S. (E.D.Cal. 2001) 153 F.Supp.2d 1133, 1142.)
The CVP is now “a system of dams, reservoirs, levees, canals, pumping stations, hydropower plants, and other infrastructure.” (Orff v. United States (2005) 545 U.S. 596, 598.) “With total storage capacity of more than 12 million acre-feet, the CVP delivers approximately seven million acre-feet of water annually to over 250 water contractors, primarily for agricultural use in the Central Valley. [Citation.] The CVP ‘“supplies two hundred water districts, providing water for about thirty million people, irrigating California’s most productive agricultural region and generating electricity at [numerous] powerplants.”’” (North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 840.)
“The contemporary CVP consists of nine distinct geographic areas, known as ‘divisions.’ [Citation.] These are the: (1) Trinity; (2) Shasta; (3) Sacramento; (4) American River; (5) Delta; (6) Eastside; (7) San Felipe; (8) West San Joaquin; and (9) Friant Divisions.” (Westlands Water Dist. v. U.S., supra, 153 F.Supp.2d at p. 1142.) Each division “has at least one subset ‘unit,’ which itself is comprised of various facilities, e.g., a dam and a power plant.” (Id. at p. 1144.) For example, the West San Joaquin Division includes the San Luis Unit, which comprises “‘the San Luis Dam and the San Luis Reservoir, together with a number of smaller facilities.’” (Id. at p. 1145, fn. omitted.) “Water from the San Luis Unit of the CVP is delivered to contractors,” who in
Appellant Westlands is a public agency formed “for the purpose of receiving CVP water and distributing that water to end users (i.e., farmers) for beneficial use (i.e., irrigation to grow crops) on lands within [its service area].” (North Coast Rivers Alliance v. Westlands Water Dist., supra, 227 Cal.App.4th at p. 839Westlands Water Dist. v. U.S. (9th Cir. 2003) 337 F.3d 1092, 1097) and the largest of all CVP contractors in the state. Westlands delivers CVP water to over 600,000 acres of farmland in Fresno and Kings Counties.
Respondents are a diverse group of litigants with shared concerns about the environmental impacts of various CVP operations. “Competition for the Bay-Delta’s resources, pollution of Bay-Delta water, draining and filling of tidal marshes and other wetlands, and diversion of Bay-Delta water for urban and agricultural uses throughout the state have … resulted in a decline in Bay-Delta wildlife habitat, the threatened extinction of plant and animal species, an increasing risk of failure of Bay-Delta levees, and degradation of the Bay-Delta as a reliable source of high quality water.” (In re Bay-Delta etc., supra, 43 Cal.4th at p. 1151Id. at p. 1158.) “The pollutants of upstream urban and agricultural uses cause problems for downstream fish and water diverters alike.” (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1035.)
Respondents allege that Westlands’ operations harm fish and wildlife and “exacerbate[] the existing contamination of the soils, groundwater and surface waters of
Prior and Contemporaneous Contract Litigation
“With the Reclamation Act of 1902, Congress committed itself to the task of constructing and operating dams, reservoirs, and canals for the reclamation of the arid lands in 17 western states.” (Peterson v. U.S. Dept. of Interior (9th Cir. 1990) 899 F.2d 799, 802Id. at p. 804.) Since that time, “reclamation law has been based on the concept of project repayment—reimbursement of federal construction costs—by project water and power users.” (Stern, Congressional Research Service,
There are two relevant types of contracts for federal reclamation project water: repayment contracts and water service contracts. “Repayment contracts are generally made for terms of 40 years, with capital costs amortized over the long-term period and repaid in annual installments …. Costs are repaid annually in fixed amounts to the U.S. Treasury by project beneficiaries (contractors), along with costs for project operations and maintenance. For water service contracts, contractors pay a combined capital repayment and operations and maintenance (O&M) rate for each acre-foot of water actually delivered (i.e., water service).” (Stern, Accelerated Repayment of Bureau of Reclamation Construction Costs, supra, at p. 1; accord,
Because the CVP “includes many multipurpose facilities benefiting different contractors that were built over many decades,” most CVP contractors have historically operated under water service contracts. (Stern, Accelerated Repayment of Bureau of Reclamation Construction Costs, supra, at p. 1.) Such contracts “establish the rates and other terms for [(1)] water delivery, [(2)] to produce sufficient revenue to recover an appropriate share of the federal government’s capital investment, and [(3)] to repay the Bureau’s annual operation and maintenance costs.” (North Coast Rivers Alliance v. Westlands Water Dist., supra, 227 Cal.App.4th at p. 844Ibid.)
In 1963, Westlands and the Bureau entered into a 40-year water service contract for the delivery of CVP water from the San Luis Unit (hereafter “the 1963 contract” or “contract No. 14-06-200-495-A”). “Since 1978, the contract has generated extensive litigation.” (Orff v. United States, supra, 545 U.S. at p. 599; see O’Neill v. U.S. (9th Cir. 1995) 50 F.3d 677, 680–682 [chronicling pertinent litigation history].) In 1986, a
“In 1992, in what was seen as a victory for environmentalists, Congress passed the Central Valley Project Improvement Act (Pub.L. No. 102-575 (Oct. 30, 1992) 106 Stat. 4706), which elevated fish and wildlife protection and restoration to the status of a primary purpose of the CVP, reserved 800,000 acre-feet of CVP water for environmental and wildlife protection purposes, and prohibited new water contracts.” (In re Bay-Delta etc., supra, 43 Cal.4th at p. 1154North Coast Rivers Alliance v. Westlands Water Dist., supra, 227 Cal.App.4th at pp. 844–845, citing CVPIA, §§ 3404(c), 3409.) “Until that environmental documentation was completed, the Bureau was authorized by the CVPIA to enter into interim renewal contracts of up to three years on the first occasion, and for successive interim periods of up to two years in length thereafter.” (North Coast Rivers Alliance, at p. 845.)
By late 2007, when the 1963 contract was about to expire, “the Bureau had not yet completed its environmental documentation necessary for the execution of a long-term (25-year) renewal of the water service contract with Westlands Water District.” (North Coast Rivers Alliance v. Westlands Water Dist., supra, 227 Cal.App.4th at p. 845.) The
The Bureau also entered into multiple interim renewal contracts with Westlands Water District Distribution District No. 1 (Westlands DD #1) and Westlands Water District Distribution District No. 2 (Westlands DD #2). The history and purpose of those distribution districts is explained in North Coast Rivers Alliance v. Westlands Water Dist., supra, 227 Cal.App.4th at pages 839 and 845–846. Although closely related to Westlands, they are distinct public entities. (Id. at pp. 838–839 & fn. 1; see
The interim renewal contracts between Westlands and the Bureau sparked protracted legal battles initiated by many of the respondents herein, e.g., the “coalition of environmental organizations led by the North Coast Rivers Alliance.” (N. Coast Rivers Alliance v. U.S. Dept. of Interior (E.D.Cal. 2018) 313 F.Supp.3d 1199, 1200.) In 2010, for example, North Coast Rivers Alliance and others filed a petition for writ of mandate and a complaint for declaratory and injunctive relief in the Fresno Superior Court regarding, inter alia, interim renewal contract No. 14-06-200-495A-IR2. The case concerned the applicability of the California Environmental Quality Act (
In 2012, North Coast Rivers Alliance and others petitioned the Fresno Superior Court for a writ of mandate regarding, inter alia, the third interim renewal contract between Westlands and the Bureau, i.e., contract No. 14-06-200-495A-IR3. (North Coast Rivers Alliance v. Westlands Water Dist., supra, 227 Cal.App.4th at pp. 845, 847.) This contract was also determined to be exempt from CEQA. (Id. at p. 848.) The plaintiffs appealed and, despite the same issue of mootness, this court exercised its discretion to hear the case on the merits. (Id. at p. 849.) Westlands prevailed.
In early 2016, North Coast Rivers Alliance and others filed a lawsuit in the United States District Court for the Eastern District of California (case No. 1:16-cv-00307; hereafter the “federal court action”) challenging the legality of multiple interim renewal contracts between the Bureau and CVP water contractors, including the fifth interim renewal contract between the Bureau and Westlands, i.e., contract No. 14-06-200-495A-IR5. (N. Coast Rivers Alliance v. U.S. Dept. of Interior, supra, 313 F.Supp.3d at p. 1200.) As initially filed, the federal court action concerned whether the Bureau’s approval of the interim renewal contracts violated the National Environmental Policy Act (
In late 2016, Congress enacted the Water Infrastructure Improvements for the Nation Act (Pub.L. No. 114-322 (Dec. 16, 2016) 130 Stat. 1628) (WIIN Act). As relevant here, the WIIN Act authorized a limited-time opportunity for water contractors to convert their existing water service contracts with the Bureau to repayment contracts. (WIIN Act, § 4011; see id., § 4013 [“This subtitle shall expire on the date that is 5 years after the date of its enactment”].) Such conversions were contingent, however, upon the repayment of all outstanding project construction cost obligations in a “lump sum,” or “in
“[P]rior to the WIIN Act, no such blanket authority for accelerated repayment existed for [federal reclamation] projects in general.” (Stern et al., Congressional Research Service, Water Infrastructure Improvements for the Nation (WIIN) Act: Bureau of Reclamation and California Water Provisions (Dec. 14, 2018) p. 23, at <https://crsreports.congress.gov/product/pdf/R/R44986>.) “Generally speaking, one of the advantages to such conversion is that once [the capital costs] are repaid in full, contractors are not subject to certain acreage limitations” and related pricing provisions of federal reclamation law. (Ibid.; accord, Hoopa Valley Tribe v. U.S. Bureau of Reclamation (E.D.Cal. Dec. 29, 2022, No. 1:20-cv-1814-JLT-EPG) __ F.Supp.3d __, __, fn. 1 [2022 U.S. Dist. LEXIS 232992, *2; 2022 WL 17994327, *1]; see WIIN Act, § 4011(c)(1).) But just as those incentives are viewed positively by contractors such as Westlands, respondents are strongly opposed to them.3
In March 2019, the Bureau gave notice in the federal court action that it “‘no longer intend[ed] to pursue the issuance of new long-term water service contracts to Westlands under the authority of [the] CVPIA’” but did intend to “‘convert Westlands’ existing water service contracts into repayment contracts’” as authorized by the WIIN Act. Approximately one year later, on or about February 28, 2020, Westlands and the Bureau executed an agreement labeled contract No. 14-06-200-495A-IR1-P and entitled “Contract Between the United States and Westlands Water District Providing For Project Water Service San Luis Unit and Delta Division and Facilities Repayment” (underscoring and some capitalization omitted; hereafter the “WIIN Act contract”).
The WIIN Act contract refers to a previously “Existing Contract,” i.e., the sixth interim renewal contract between Westlands and the Bureau (contract No. 14-06-200-495A-IR6), and it converts that water service contract to a repayment contract. Although executed in February 2020, the terms of the WIIN Act contract postponed its effective date until June 1, 2020. Due to the expiration of the prior “Existing Contract” on February 29, 2020, Westlands and the Bureau entered into a seventh interim renewal contract (contract No. 14-06-200-495A-IR7), to cover the period of March 1, 2020 through May 31, 2020. On June 11, 2020, after the WIIN Act contract had taken effect, Westlands made a “payment of $209,436,667” to the Bureau “to pay off Westlands’ capital repayment obligation for the construction of CVP facilities.” (This quoted
Execution of the WIIN Act contract between Westlands and the Bureau did not resolve the federal court action. Although claims pertaining to the earlier interim renewal contracts were dismissed, the plaintiffs were permitted to amend their complaint to assert claims regarding the WIIN Act contract. (North Coast Rivers Alliance v. U.S. Dept. of Interior (E.D.Cal. Aug. 12, 2022, No. 1:16-cv-00307-JLT-SKO) [2022 U.S. Dist. LEXIS 144401, p. *7; 2022 WL 4126085, p. *2] [order denying Bureau’s motion to stay action pending rulings in “several similar though not identical [federal] cases concerning WIIN Act Repayment Contracts”].) As of July 2023, the case is active and pending.
The Present Matter
To fully explain the context in which this case arose, we briefly discuss one more aspect of federal reclamation law. “In 1922, Congress enacted legislation expanding the United States’ options to allow it to contract not only with individual water users, but also with ‘any legally organized irrigation district.’ [Citation].” (San Luis Unit Food Producers v. U.S. (E.D.Cal. 2011) 772 F.Supp.2d 1210, 1233.) The century-old law provides, in relevant part, “That no contract with an irrigation district under this Act shall be binding on the United States until the proceedings on the part of the district for the authorization of the execution of the contract with the United States shall have been confirmed by decree of a court of competent jurisdiction, or pending appellate action if ground for appeal be laid.” (
In short, federal reclamation contracts with irrigation districts “are not binding upon the United States unless and until they are validated by state court decree.” (Hoopa Valley Tribe v. U.S. Bureau of Reclamation, supra, __ F.Supp.3d at p. __, citing
“Promptly after the execution of this amended Contract, the Contractor [Westlands] will provide to the Contracting Officer [the Bureau] a certified copy of a final decree of a court of competent jurisdiction in the State of California, confirming the proceedings on the part of the Contractor for the authorization of the execution of this amended Contract. This amended Contract shall not be binding on the United States until the Contractor secures a final decree.”
This appeal concerns Westlands’ failed attempt to satisfy the above-quoted provision, which was originally labeled as Article 46 in the draft version of the contract presented to the superior court below. However, as Westlands has previously acknowledged, case law holds that “[e]ven if the United States is not bound by the [repayment] contract because it was not judicially confirmed, the contract is not necessarily invalid.” (Concerned Irrigators v. Belle Fourche Irr. Dist. (8th Cir. 2001) 235 F.3d 1139, 1144Hoopa Valley Tribe v. U.S. Bureau of Reclamation, supra, __ F.Supp.3d at p. __ [2022 U.S. Dist. LEXIS 232992, *7; 2022 WL 17994327, *3].)
Westlands is appealing from a judgment of dismissal, not a judgment that determines the validity or legality of the WIIN Act contract. (See Olwell v. Hopkins (1946) 28 Cal.2d 147, 149 [“Ordinarily, a judgment of dismissal is not a judgment on the merits”].) Westlands and the Bureau have been performing under that contract for the past three years. The Bureau accepted Westlands’ lump sum repayment of its capital costs obligation, and the Bureau continues to defend the contract in federal court. As noted in a related case, “there is no suggestion that the United States disclaims its contractual obligations to Westlands (or any other WIIN Act repayment contract holder).” (Hoopa Valley Tribe v. U.S. Bureau of Reclamation, supra, __ F.Supp.3d at p. __ [2022 U.S. Dist. LEXIS 232992, *9; 2022 WL 17994327, *4].) The Bureau has
On October 25, 2019, Westlands filed a validation complaint in the Fresno Superior Court pursuant to
As explained above, the WIIN Act contract was not executed until February 28, 2020, i.e., four months after the validation action was filed. An unsigned and unfinalized draft version of the contract was attached to the complaint as an exhibit. Also attached was a copy of “Resolution No. 119-19,” memorializing actions taken by Westlands’ Board of Directors (Board) at a meeting held on October 15, 2019. The Board had authorized execution of the anticipated WIIN Act contract “in substantially the form presented to [it],” i.e., in substantially the same form as the draft attached to the validation complaint, “with such additional changes and/or modifications as are approved by the President of [Westlands], its General Manager, and its General Counsel.” The Board further authorized the issuance of notices of exemption from CEQA.
Westlands’ validation complaint included the following prayer for relief:
“That judgment be entered determining that: (a) the Converted Contract, [i.e., the draft attached as an exhibit] and each and every provision of said Converted Contract, is valid under applicable California law; (b) that [Westlands] has, and at all times relevant has had, the authority to enter into said Converted Contract under California Water District Law, including Water Code sections 35851 and 35875; (c) that all of the proceedings of [Westlands] and its Board of Directors leading up to and including the making and approval of said Converted Contract were in all respects legal and valid; (d) that said Converted Contract is in all respects valid under applicable California law and binding upon the respective parties thereto; and (e) that said Converted Contract, and each and every provision thereof, is, and are, in all respects valid and authorized by applicable California law.” (Italics added.)
Respondents collectively filed four verified answers to the complaint. Together they asserted dozens of “affirmative defenses,” the most pertinent of which were as follows.
Nearly all respondents characterized the lawsuit as premature. They claimed the Bureau had not yet completed its “review and decision-making” on the matter and had “extended an initial 60-day comment period on Westlands’ ‘draft repayment contract’ until January 8, 2020.” In related contentions, respondents County of San Joaquin and County of Trinity (hereafter Counties) asserted that “Westlands’ haste to approve and validate a converted contract appears to be prompted, at least in part, to moot [the claims in the federal court action] over environmental review of its [sixth interim renewal contract with the Bureau].”
The group of respondents led by North Coast Rivers Alliance alleged the actions taken by Westlands’ Board violated state and federal environmental laws. Those respondents further alleged violations of the Ralph M. Brown Act (
The Counties also focused on the missing exhibits, but for a different reason, alleging their absence rendered the working draft “materially incomplete.” The Counties
On December 30, 2019, Westlands filed a “Motion for Validation of Contract,” seeking entry of a judgment in its favor on all issues (hereafter the “December 2019 motion”). The motion was partially supported by the declaration of Balbina Ormonde, Westlands’ “Deputy General Manager of Finance & Administration and Secretary.” The general purpose of her declaration and its attachments was to show compliance with the Brown Act.
The December 2019 motion was also supported by the (first) declaration of Jose Gutierrez, Westlands’ Chief Operating Officer. The Gutierrez declaration explained that Westlands had contacted the Bureau in April 2018 to request conversion of its then existing water service contract (the sixth interim renewal contract) to a repayment contract pursuant to the WIIN Act. The declaration also addressed the issue of the missing exhibits (original text broken into smaller paragraphs for readability):
“There will be four exhibits to the Converted Contract. Although the Bureau of Reclamation has not yet finalized the exhibits, each exhibit is described in the Converted Contract and three of the four exhibits remain as they are within the existing water service contract.
“Exhibit A to the Converted Contract will be a map of the Westlands Water District service area. The service area will be the same as illustrated in the map that Exhibit A to Westlands’ existing water service contract [sic].
“Exhibit B to the Converted Contract will be a listing of the rates and charges applicable to Westlands upon execution of the Converted Contract. As is set forth in the Converted Contract and consistent with the requirements of the existing water service contract, the rates and charges
will be updated annually, as calculated by the Bureau of Reclamation to meet the requirements of reclamation law. “Exhibit C to the Converted Contract will be a document explaining the purpose and methodology of water needs assessments performed by the Bureau of Reclamation. This document will be the same as the Exhibit C to Westlands Water District’s existing water service contract.
“Exhibit D to the Converted Contract is the only new exhibit. It will be a document showing the amount of Westlands’ repayment obligation as of the date it enters the Converted Contract. The obligation is determined through a ministerial calculation by the Bureau of Reclamation based on reclamation law and policy. In a June 18, 2018 letter, as required by the WIIN Act, the Bureau of Reclamation informed Westlands that its then existing repayment obligation was approximately $362,079,612. Westlands anticipates that the total amount of its repayment obligation that will be included in Exhibit D to the Converted Contract will be lower than the estimate it was provided in 2018, because over the course of the last approximate 18 months, Westlands has continued to make payments towards its share of the CVP’s capital costs. Exhibit D could not be provided until the date of execution is known.”4
Respondents collectively filed four oppositions to the December 2019 motion, with most arguing the draft agreement was materially incomplete. The Counties alleged that the absence of exhibit D was “[p]articularly alarming” in light of “a history of differing views of what Westlands would owe under the conversion contract.” North Coast Rivers Alliance similarly argued that the “amount of Westlands’ existing capital obligation is an essential contract term, … [b]ut nowhere in the Converted Contract does Westlands disclose how much money it must pay to the Bureau.”
On January 21, 2020, Westlands filed replies to the opposition papers, along with a second declaration of Jose Gutierrez. The latter document contained the following statements:
“In my prior declaration, I referenced a letter from [the Bureau] to Westlands, dated June 29, 2018. I explained that Exhibit D to the Converted Contract will consist of a current update of the repayment obligation listed in that letter, but this updated amount cannot be provided until the date of contract execution is known since Westlands continues to make payments on its share of capital costs. A true and correct copy of the June 29, 2018 letter is attached hereto …. [The Bureau’s] estimate of Westlands’ capital repayment obligation was known and discussed with the Westlands Board of Directors well before the October 15, 2019 meeting in which the Westlands Board of Directors approved the Converted Contract.
“[The Bureau] will calculate the capital repayment obligation amount. It is not an item that is to be negotiated between Westlands and [the Bureau].”
The June 2018 letter referenced in, and attached to, the second declaration of Jose Gutierrez consisted of two pages of correspondence and three pages of enclosures. The subject line of the Bureau’s letter referenced not only the sixth interim renewal contract with Westlands (contract No. 14-06-200-495A-IR6), but also six other contracts—many of which were between the Bureau and Westlands DD #1 and Westlands DD #2.5 The letter did not contain a specific repayment estimate, but instead advised that multiple “water service contracts … currently have estimated unpaid costs for construction as outlined in the enclosed schedules.” It was noted the estimated costs took into account “water service construction costs currently being allocated to Westlands Water District that are unpaid as of September 30, 2016.”
The enclosures to the Bureau’s June 2018 letter provided repayment estimates specific to certain contractors, facilities, and contracts. The first page identified the
The second page of enclosures facially pertained to contractor “Westlands Water District DD #1,” identified the facility as “San Luis Canal,” and referenced contracts “14-06-200-495A-IR6 [the sixth interim renewal contract], 14-06-200-7823J, 14-06-200-8092-IR16, 7-07-20-W0055-IR16-B[,] 14-06-200-8018-IR16-B, [and] 14-06-200-365A-IR16[.]” This document provided a lump sum repayment estimate of $320,445,400 and an installment estimate of $332,754,826 (four equal payments of $83,188,707).
The third page of enclosures facially pertained to contractor “Westlands Water District DD #2,” identified the facility as “San Luis Canal,” and the contract as “14-06-200-336C-IR16.” This document provided a lump sum repayment estimate of $531,258 and an installment estimate of $551,666 (four equal payments of $137,916).6
For reasons not explained by the record, the superior court postponed the motion hearing from the original date of January 28, 2020, until February 27, 2020. Westlands filed an ex parte application to advance the hearing date, noting its sixth interim renewal contract with the Bureau was set to expire on February 29, 2020. The application was denied.
On February 26, 2020, the superior court issued a written tentative ruling to deny the December 2019 motion. The motion was argued the following day, at which time counsel for Westlands advised that it still intended to execute the anticipated WIIN Act contract as scheduled. The remarks prompted the following exchange:
“THE COURT: This a $362 million contract?
“[WESTLANDS’ COUNSEL]: The final payment amount, Your Honor, is—the repayment obligation for construction is significantly less than that because the years between that estimate and today, Westlands has been making payments and—
“THE COURT: About how much less? I‘m sorry to interrupt you.
“[WESTLANDS’ COUNSEL]: I‘m sorry, Your Honor. It‘s—I don‘t have the precise—it‘s in the $200 million range.”7
“The subject of a validation action can only be the contract that is tendered before the Court, which as your Your Honor [sic] has pointed out here is missing the four exhibits and is subject to change at the [B]ureau and a number of uncertain developments at the federal level. Whether a conversion contract is going to be executed in another day, or another month, or another year, it means there is going to be a different contract document that is not before the Court in any form [and] that was not the basis for the summons that was published and was the source of jurisdiction here .... [S]o it helps them not at all to say that there may be a subsequent converted contract.”
The hearing concluded with the motion being taken under submission. Westlands’ proposal to submit a copy of the executed WIIN Act contract on a later date was impliedly rejected. On March 16, 2020, the superior court issued a minute order adopting its tentative ruling.
The December 2019 motion was denied on three grounds. First, the superior court interpreted
Second, the so-called “proposed contract” was held to lack certain essential terms. The written decision noted “Exhibits A, B, C, and D to the Converted Contract [were] missing from all materials submitted to the Court. Exhibit D is the repayment page.” The analysis continued:
“The proposed judgment seeks a ruling that ‘the Converted Contract is in all respects valid under applicable California Law and binding upon Westlands.’ Given that the contract terms, including repayment terms, are not certain, and that [Westlands’ Board authorized] that the contract may be changed or modified, validation is not appropriate. It is not possible to make the determinations sought where no final contract is presented for validation.
“Westlands’ Declarant Gutierrez states he does not anticipate any major changes, but the validation statutes do not encompass judicial approval of incomplete contracts. Given the estimate for the repayment amount is over $362,000,000 [citation], the absence of the actual final amount and payment schedule render the proposed contract lacking in material terms and incomplete.”
Third, Westlands was deemed to have fallen short of meeting its evidentiary burden, as the moving party, to demonstrate compliance with the Brown Act. The superior court found conflicts in Westlands’ own evidence regarding notice requirements for the October 2019 Board meeting, and further noted the absence of certain evidence that would have shown whether “the information necessary to support the meeting” had been provided to the public.9
The discretionary stay was ordered while a “Renewed Motion for Validation of Contract” was pending. However, the motion was filed only three weeks prior to the stay, and it was never heard or ruled upon. Instead, following a July 2021 status conference, the parties were ordered to submit “opening” and “cross-opening” briefs.
In September 2021, Westlands filed notice of another “Renewed Motion for Validation Judgment” (hereafter the September 2021 motion), along with a combined “Opening Brief and Memorandum of Points and Authorities in Support of Renewed Motion for Validation Judgment.” An attorney declaration identified the “new or different facts” (
Westlands’ moving papers included copies of what it identified as the final, “fully executed Converted Contract,” i.e., the WIIN Act contract. One copy was attached to the Board‘s resolution No. 110-21. Another copy was attached to an updated declaration of Jose Gutierrez, dated September 17, 2021. Both attachments included a letter from the Bureau to Westlands, dated February 28, 2020, enclosing a copy of the executed WIIN Act contract and noting that, “Exhibit D to the Contract will be finalized on the Effective Date of the Contract, [i.e., June 1, 2020,] in accordance with the [WIIN Act].” However, the copy attached to resolution No. 110-21 has a different version of exhibit D than the copy attached to the (fourth) Gutierrez declaration. Both versions consist of two pages closely resembling (in format) the enclosures to the Bureau‘s June 2018 letter, i.e., the one relied upon by Jose Gutierrez to estimate Westlands’ repayment obligation in 2019.
In the version attached to resolution No. 110-21, the first page of exhibit D facially pertains to contractor “Westlands Water District DD #1,” identifies the facility as “San Luis Canal,” and references contract Nos. “14-06-200-0495A-IR1-P [the WIIN Act contract],” “7-07-20-W0055B-IR5-P,” “14-06-200-8092-IR5-P,” and “14-06-200-8018B-IR5-P.” This first page calculates a lump sum option of $208,182,333, an installment option of $211,366,768 (four equal payments of $52,841,692), and separately lists an “M&I [Municipal & Industrial] Construction Cost” obligation of $264,913. The second page identifies the contractor as “Westlands Water District,” the facility as “Delta
The version of exhibit D attached to the (fourth) Gutierrez declaration is truncated, and thus partially illegible, on the right side and bottom portions of both pages. The first page facially pertains to contractor “Westlands Water District DD #1,” identifies the facility as “San Luis Canal,” and references contract Nos. “14-06-200-0495A-IR1-P [the WIIN Act contract], 14-06-200-7823J-LTR1-P, 14-06-200-8092-IR5-P, 7-07-20-W0055B-IR5-P, 14-06-200-8018B-IR5-P, [and] 14-06-200-3365AB-IR5-P.” The lump sum option is calculated to be $204,635,193, the installment option is $209,285,920 (four equal payments of $52,321,480), and the “M&I Construction Cost” is separately listed as $264,913. The second page identifies the contractor as “Westlands Water District,” the facility as “Delta Mendota Pool,” and references contract No. “14-06-200-0495A-IR1-P [the WIIN Act contract].” The lump sum option is $519,163 and the installment option is $530,962 (four equal payments of $132,740).
Respondents opposed the September 2021 motion, with all arguing it was either untimely or sought relief beyond the scope of the complaint. In other words, a motion for reconsideration of the March 2020 ruling was subject to a 10-day deadline. (
The superior court ruled that none of Westlands’ “purportedly new facts” supported the September 2021 motion. In reaching this conclusion, the court generally agreed with the position articulated by the Counties. The written decision explains:
“The fact that Westlands and the Bureau entered into a final version of the repayment contract after the hearing on the [December 2019 motion] does not affect the issues pointed out in [the court‘s] order denying the [motion]. As [the court] held, the contract considered by the Board in October 2019 was only a proposed, incomplete contract, because it lacked key terms like the final repayment price and the dates on which repayments would be due. ... Although the contract was later finalized and executed by the parties, the issue before the court was whether the Board acted properly when it approved the contract in October 2019, not whether the contract was later executed by the parties....
“Likewise, the fact that the Board approved a resolution in June 2021 stating that the executed contract conformed to the authority granted by the Board‘s prior resolution does not affect [the court‘s] conclusion that the contract considered by the Board in October of 2019 was not a complete contract. Again, [the court] found that the contract considered by the Board in October 2019 was incomplete and uncertain because it lacked key terms .... The Board‘s subsequent resolution that the final contract was consistent with its earlier resolution does not cure these deficiencies .... The issue before the court is whether the Board‘s decision to approve the contract in October of 2019 was valid, not whether it later made subsequent resolutions that attempted to cure earlier deficiencies in the draft contract.” (Original underscoring.)
Regarding compliance with the Brown Act, Westlands’ ” ‘new facts’ ” were found to be “events that occurred in October 2019, long before the hearing on the [December 2019 motion].” It was further held that Westlands failed “to explain why it could not have presented these facts at the time of the original hearing, and it appears that it could have done so, since the evidence was apparently in its possession at that time.” (See Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839 [“Courts have construed [
“Finally, to the extent that Westlands request[ed] that the court grant a validation judgment as to the parts of the contract” at issue, the request was denied. The superior court clarified that its ruling on the December 2019 motion “did not find that some portions of the contract could be validated.” “The order instead found that, while some portions of the contract related to repayment of an indebtedness, and thus were potentially subject to being validated, the Board‘s decision nevertheless could not be properly validated because it had sought to validate an incomplete, uncertain, proposed contract.”
The order adopting the tentative ruling included an order to show cause (OSC) as to why the action should not be dismissed. An OSC hearing was held in December 2021, at which time Westlands’ counsel opposed dismissal but conceded an entry of judgment in its favor would be inconsistent with the superior court‘s recent findings and conclusions. The hearing was continued to February 2022 pending consideration of whether respondents were entitled to affirmative relief, i.e., a judgment in their favor and against Westlands.10
DISCUSSION
I. Validation Actions
“Generally speaking, statutory validation actions are designed to provide expedient, uniform procedures by which public agencies can obtain binding judgments as to the validity of public financing commitments such as ‘bonds, warrants, contracts, obligations or evidence of indebtedness ....’ ” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 66, fn. 12.) “They are expedited because they require validation proceedings to be filed within 60 days of the public agency‘s action (
” ‘This procedure, which the Legislature codified as
Westlands relied on provisions in the Water Code and Government Code to invoke the validation procedures of
Under the validation statutes, contracts “shall be deemed to be in existence upon their authorization[,] ... and contracts shall be deemed authorized as of the date of adoption by the governing body of the public agency of a resolution or ordinance approving the contract and authorizing its execution.” (
II. Claims on Appeal
Westlands contends the “authorization to execute the proposed contract in substantially the form presented to the Westlands Board on October 15, 2019, rendered the contract ‘in existence’ ” at that time. As we understand the argument, Westlands claims the contract then in existence was not the draft version attached to the complaint, but the WIIN Act contract executed four months later, because there are no material differences between the two instruments. Whether the claim has merit depends on the importance of the exhibits missing from the draft, which is the ultimate issue decided herein.
Focusing on the absence of exhibit D, Westlands argues the amount of its repayment obligation was a “ministerial detail.” It attempts to recast the issue as one hinging on its Board‘s ability to “delegate[] authority to the Westlands’ President to finalize and execute” the contract once the specific amount was known. (See
Contingent on our rejection of its first set of arguments, Westlands further claims the superior court erred by denying its September 2021 motion. The rest of its briefing addresses a multitude of other arguments made by respondents in their oppositions below but not reached by the superior court in its rulings. Respondents have renewed those arguments on appeal contingent upon our acceptance of Westlands’ claims regarding the
As we agree with the superior court‘s conclusion regarding the lack of essential terms, and its rationale for denying the September 2021 motion, we need not decide any of the parties’ remaining contentions. (See Katz v. Campbell Union High School Dist. (2006) 144 Cal.App.4th 1024, 1032 [“the validity of a matter is not decided piecemeal“]; N.T. Hill Inc. v. City of Fresno (1999) 72 Cal.App.4th 977, 991, fn. 10 [“The validation statutes require consolidation of all challenges to a particular governmental action and entry of a single judgment“].)
III. Analysis
A. December 2019 Motion Ruling
The issue is whether the absence of exhibit D from the contract attached to the complaint rendered it materially deficient and uncertain. Put differently, did the failure to specify Westlands’ financial obligations preclude a judicial determination, as sought by the complaint, that the contract was “in all respects valid under applicable California law and binding upon the respective parties thereto,” i.e., enforceable?
The relevant principles are summarized in Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199:
” ‘Under California law, a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties’ obligations and to determine whether those obligations have been performed or breached.’ [Citation.] ‘To be enforceable, a promise must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.’ [Citations.] ... ‘The terms of a contract are reasonably certain if they provide a basis for determining the
existence of a breach and for giving an appropriate remedy.’ [Citations.] But ’ [i]f ... a supposed “contract” does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.’ [Citation].” (Id. at p. 209.)
We use the words “material” and “essential” interchangeably. (See Black‘s Law Dict. (11th ed. 2019) p. 1170, col. 1.) A “material term” is defined as a “contractual provision dealing with a significant issue such as subject matter, price, payment, quantity, quality, duration, or the work to be done.” (Id. at p. 1772, col. 2, italics added.) “Whether a term is ‘essential’ depends on its relative importance to the parties and whether its absence would make enforcing the remainder of the contract unfair to either party.” (Copeland v. Baskin Robbins U.S.A. (2002) 96 Cal.App.4th 1251, 1256, fn. 3, citing Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396, 417, and City of Los Angeles v. Superior Court (1959) 51 Cal.2d 423, 433.) “When, however, ‘a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.’ ” (Coleman Engineering Co., at p. 417.)
Under the WIIN Act, “all contracts” that convert a water service contract to a repayment contract “shall ... [¶] ... provide for the repayment, either in lump sum or by accelerated prepayment, of the remaining construction costs identified in water project specific irrigation rate repayment schedules, as adjusted to reflect payment not reflected in such schedules, and properly assignable for ultimate return by the contractor, or if made in approximately equal installments, no later than 3 years after the effective date of the repayment contract, such amount to be discounted by 1/2 the Treasury rate.” (WIIN Act, § 4011(a)(2)(A).) Westlands submits the amount to be repaid was nonnegotiable. By all indications, the amount to be repaid by Westlands was an essential term of the agreement.
The record suggests Westlands’ Board was not especially concerned about the amount of the repayment obligation, provided it was less than $362 million—an estimate nowhere stated in the contract or the Board‘s October 2019 resolution approving the same. The Board‘s prior assumptions regarding the amount do not mean the amount itself was not a material term. There is no indication Westlands was willing to agree to pay any amount, e.g., a higher amount. Nor does it appear the Bureau was willing to agree to anything less than a certain amount.
Citing the contractual definition of “Existing Capital Obligation,” Westlands argues it was sufficient for the draft agreement to “expressly set forth how the calculations in Exhibit D would be made.” We are not persuaded. The cited text of the draft reads as follows:
” ‘Existing Capital Obligation’ shall mean the remaining amount of construction costs or other capitalized costs allocable to the Contractor as described in section 4011, subsections (a)(2)(A) and (a)(3)(A) of the WIIN Act, and as identified in the Central Valley Project Irrigation Water Rates and/or Municipal and Industrial Water Rates, respectively, dated Month/Day/Year [specify ratebook year for all contractors.] [contractor specific to address the intertie], as adjusted to reflect payments not reflected in such schedule. The Contracting Officer has computed the Existing Capital Obligation and such amount is set forth in Exhibit D,
The term “Repayment Obligation” was defined as “the Existing Capital Obligation discounted by 1/2 of the Treasury rate, which shall be the amount due and payable to the United States, pursuant to section 4011(a)(2)(A) of the WIIN Act.” Elsewhere in the draft, it said the Repayment Obligation ”has been computed ... and is set forth as a lump sum payment (M&I and Irrigation) and as four (4) approximately equal annual installments (Irrigation Only) to be repaid no later than three (3) years after the effective date of this Contract as set forth in Exhibit D.” (Italics added.) The same paragraph discussed timing of repayment and notice requirements for selecting the lump sum or installment option, but those provisions contained what respondents call “placeholder references,” i.e., bracketed comments about future insertions, instead of the applicable dates.
To summarize, the “Repayment Obligation” cannot be determined without knowing the “Existing Capital Obligation” and/or the contents of exhibit D. The “Existing Capital Obligation” cannot be determined without knowing the contents of exhibit D. In the absence of exhibit D, both terms are useless for purposes of determining Westlands’ financial obligations, i.e., “the scope of the duty and the limits of performance.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770.)
Moreover, as Westlands admitted during the motion proceedings, exhibit D was not merely omitted from the draft attached to the complaint. Despite being expressly incorporated into the contract by reference, exhibit D did not exist when the complaint and the December 2019 motion were filed. Even when the motion was heard, there was only meager parol evidence of estimates ranging from $200 million to $362 million. Given the circumstances, we agree the contract presented for validation was missing an essential term and therefore uncertain, i.e., not sufficiently definite to be binding and enforceable.
The Marquardt case was “a proceeding in mandamus to compel James J. Marquardt, the executive secretary of the Metropolitan Water District of Southern California, to take certain procedural steps necessary to carry out a contract for the delivery of water from the facilities of the State Water Resources Development System to the district. The contract was made ... between the district and the State of California, acting through its Department of Water Resources, pursuant to the California Water Resources Development Bond Act (
Westlands cites to pages 195–197 of Marquardt, which discuss how the contract provided for “repayment of the costs of the entire project by means of the charges to be paid by [multiple] contractors.” (Marquardt, supra, 59 Cal.2d at p. 195.) “It contain[ed] an elaborate system for the determination of the share that each contractor [would] contribute, and as part of this determination certain cost allocations [needed to] be made.” (Ibid.) There was a claim the contract was “uncertain,” but the opinion implies the dispute was not over the costs being unknown, but rather the ability to identify the necessary decisionmaker. “It [was] contended that some of these allocations, provided for in article 22(e) [of the contract], require[d] the evaluation of imponderables on a subjective basis (i.e., involving personal opinion and discretion) and that the contract [did] not provide who [would] make the subjective evaluations.” (59 Cal.2d at p. 195.)
There is no dispute over the Bureau‘s contractual authority to calculate Westlands’ repayment obligation. The issue is whether the contract was sufficiently definite, and thus enforceable, despite its failure to identify the amount of the obligation. And whereas Marquardt dealt with discrete subcomponents of “an elaborate system for the determination” of cost allocations (Marquardt, supra, 59 Cal.2d at p. 195), Westlands’ repayment obligation—purported to be a nine-figure sum—was the sine qua non of the “repayment contract.” We do not read Marquardt to suggest a public agency may obtain a judgment confirming the validity of a contract, the primary focus of which is the accelerated repayment of a multimillion dollar debt, when the contract does not state the amount owed and/or the amount to be repaid. ” ‘It is axiomatic, of course, that a decision does not stand for a proposition not considered by the court.’ ” (Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 332.)
Westlands also relies on Marquardt to argue the contract “would have been enforceable even if in its final form it nowhere stated the amount of the repayment obligation, and instead provided the amount would be determined later by [the Bureau].” Regardless of whether Marquardt would support this assertion (a question we do not reach), those are not the facts of the case. The contract presented to the superior court in October 2019 said the repayment amount “has been computed ... and is ... set forth in Exhibit D.” As the case progressed, it was revealed the repayment amount had not been computed and exhibit D did not exist.
In its reply brief, Westlands cites Starr v. City and County of San Francisco (1977) 72 Cal.App.3d 164 (Starr) for the proposition “that a contract whose terms are not finalized may be validated.” Westlands further contends Starr “establishes that an incomplete contract—indeed one containing merely an ‘agreement to agree‘—can be the proper subject of a validation proceeding ....” The Counties’ attorney refuted these contentions at oral argument, correctly observing that none of the contracts at issue in Starr were found to be, or even suggested to be, materially incomplete.
The procedural history of Starr included two prior validation actions concerning a redevelopment plan adopted by the Board of Supervisors for the City and County of San Francisco (City). In the first validation action, the legality of the original plan was upheld on appeal. “The plan was subsequently amended by ordinance in 1971 and 1973,” including “an ordinance approving and authorizing the execution of a financing agreement between the City and [the San Francisco Redevelopment Agency (Agency)].” (Starr, supra, 72 Cal.App.3d at p. 168.)
Following the adoption of ordinances authorizing the City to enter into the project lease and execute the repayment contract, a group of taxpayer plaintiffs challenged the legality of both agreements. In this third validation action, the Starr court determined the project lease was valid but concluded the repayment contract violated the debt limitation provision of article XVI, section 18 of the California Constitution. (Starr, supra, 72 Cal.App.3d at pp. 170–177.) The unlawful clause of the repayment contract would have required the City to repay, on a date years in the future, whatever outstanding debt the Agency may have owed at that time to the United States Department of Housing and Urban Development (HUD). (Id. at pp. 169–170.)
Westlands purports to rely on the Starr court‘s rejection of a res judicata argument made by the City on appeal. The City had argued the judgment in the second validation action, which confirmed the validity of the financing agreement, barred subsequent legal challenges to other contracts related to that agreement, i.e., the project lease and the repayment contract. However, the HUD clause was found to be “so new and materially different” from what was contemplated by the financing agreement “that the issue of the City‘s violation of the constitutional debt limitation could not possibly have been adjudicated [in the second validation action].” (Starr, supra, 72 Cal.App.3d at p. 178.)
B. September 2021 Motion Ruling
Westlands’ September 2021 motion was made pursuant to
As Westlands acknowledges, the standard of review is abuse of discretion. (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 42.) “Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.” (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) This deferential standard is often difficult to satisfy. ” ‘The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
“A party renews a motion by ‘mak[ing] a subsequent application for the same order [based on] new or different facts, circumstances, or law.’ [Citation.] Both the original and renewed motions must request ‘identical relief.’ ” (Doe v. Westmont College (2021) 60 Cal.App.5th 753, 761.) In Westmont College, the prevailing plaintiff filed a motion for $58,466 in attorney fees, which the trial court denied. The defendant appealed the judgment, and the plaintiff again prevailed in the appellate court. The plaintiff later filed a second motion for attorney fees with the trial court, this time seeking $85,652, which was also denied. The plaintiff appealed, and the second motion was held to not constitute a “renewed motion” under
Here, the issue boils down to whether Westlands sought to validate the same contract in the December 2019 and September 2021 motions. Respondents have steadily maintained that the contract presented for validation in late 2019 was materially different from the WIIN Act contract executed in February 2020. We agree.
The contract approved by Westlands’ Board in October 2019 differs from the February 2020 WIIN Act contract in several respects. First, the 2019 version had an effective date of March 1, 2020. The effective date of the WIIN Act contract is June 1, 2020. Under the WIIN Act, the effective date is important for reasons including establishment of the deadline for the contractor‘s performance of the repayment obligation. (WIIN Act, § 4011(a)(2)(A).) Other deadlines set forth in both versions of the contract are also tied to the effective date. More importantly, according to Westlands’ own evidence, the effective date has a direct impact on the calculation of the repayment amount. Therefore, although the repayment amount of the 2019 contract remains unknown, it was necessarily different from the repayment amount of the WIIN Act contract. It follows that the effective date is a material term.
Third, the inclusion of exhibits A, B, C, and D in the WIIN Act contract constitute significant, material changes to the 2019 contract. Exhibit A is a map of Westlands’ service area; exhibit B is a schedule of the rates and charges per acre-foot of water delivered for the year 2020; exhibit C is an eight-page document explaining the purpose and methodology of the Bureau‘s “[w]ater needs assessments ... performed for each CVP water contractor eligible to participate in the CVP long-term contract renewal process“; and exhibit D pertains to the amount of Westlands’ repayment obligation. For the reasons previously explained, the amount to be repaid is a material term.
Given the material differences between the October 2019 contract and the February 2020 WIIN Act contract, the superior court did not abuse its discretion by denying the September 2021 motion. The September 2021 motion sought to validate a different contract than the one attached to Westlands’ complaint and its December 2019 motion. Therefore, what was labeled as a renewed motion in September 2021 did not actually seek the “same order” as requested in December 2019. (
The first version of exhibit D, attached to resolution No. 110-21, contains one page specifically concerning “Westlands Water District” and the WIIN Act Contract (contract No. 14-06-200-0495A-IR1-P). The lump sum calculation is $535,596. The other page of the exhibit facially pertains to “Westlands Water District DD #1” and references four contracts, one of which is the WIIN Act contract. On this page the lump sum calculation is $208,182,333, and there is an adjusted “M&I Construction Cost” of $264,913. Setting aside the confusing references to a different contractor and three other contracts, the amount Westlands claims to have paid to satisfy its repayment obligation—$209,436,667—is higher than the sums on both pages combined. Added together, the lump sum calculations and the M&I Construction Cost only come out to $208,982,842.
The second version of exhibit D, attached to the fourth declaration of Jose Gutierrez, also consists of two pages. The first page again identifies the contractor as “Westlands Water District DD #1,” but whereas the other version references four different contracts, this version references six contracts (one of which is the WIIN Act Contract). The lump sum calculation is $204,635,193 and the adjusted M&I Construction Cost is $264,913, which together total $204,900,106. The second page, which exclusively refers to “Westlands Water District” and the WIIN Act contract,
DISPOSITION
The judgment is affirmed. All parties shall bear their own costs on appeal.
PEÑA, Acting P. J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
Notes
The WIIN Act did not eliminate the acreage limits, but it did provide a mechanism for obtaining benefits historically available through repayment contracts but not water service contracts. (See WIIN Act, § 4011(c)(1);