OPV Coalition et al vs Fox Canyon Groundwater Management Agency

Case Number

VENCI00555357

Case Type

Hearing Date / Time

Fri, 07/19/2024 - 15:00

Nature of Proceedings

Complex Case Management Conference

Tentative Ruling

At the June 10, 2024, case management conference, the court noted that the court was not lifting the discovery stay at that time and without a Phase 1 discovery plan in place. The court required the parties to meet and confer as to such a discovery plan, including whether the participation of a discovery referee/ special master is appropriate in the formulation of such plan. This issue was identified as being a subject of discussion at this, the next CMC.

The parties have filed numerous documents addressing the appointment of a discovery referee/ special master and made alternative proposals. The proposals address the following subjects:

            (1)       Appointment of a special master or discovery referee;

            (2)       The scope of the authority of the special master or discovery referee;

            (3)       Discovery dispute procedures;

            (4)       Who is to be appointed as a special master or discovery referee; and,

            (5)       Allocation of fees and costs of the special master or discovery referee.

(1)       Appointment of a special master or discovery referee

The first issue presented is whether the position to be appointed should be that of a special master under Code of Civil Procedure section 845 or a discovery referee pursuant to Code of Civil Procedure section 639. (Note: Insofar as the parties have filed papers in groups that are not easily identified by a common name, non-plaintiff party groups are identified herein for ease of writing by a shortened version of the name of the first named party in that group’s own list of parties.)

Plaintiffs propose appointment of a special master, with the order specifically noting that the special master is not subject to disqualification pursuant to Code of Civil Procedure section 170.6.

Defendants City of San Buenaventura, City of Oxnard, City of Camarillo, Calleguas Municipal Water District, The Proctor & Gamble Paper Products Company, R.N. Daily Ranch, LLC, Archdiocese of Los Angeles, The Roman Catholic Archbishop of Los Angeles, Archdiocese of Los Angeles Education & Welfare Corp., St. John’s Seminary in California, Camrosa Water District, California-American Water Company, United Water Conservation District, and the Marathon 100 defendants (consisting of Marathon Land Inc. and 99 other landowner defendants) filed a separate proposal for the appointment of a discovery referee rather than a special master (the San Buenaventura Response, and sometimes collectively, the Diverse Defendants Coalition). Defendant Fox Canyon Groundwater Management Agency (FCGMA) joins this proposal.

Defendants Oxnard Union High School District, Rio School District, and Vineyard Mutual Water Company filed a partial joinder to the above-defendants’ proposal (the Oxnard Union Response). This partial joinder does not specifically take a position with respect to the issue of special master as opposed to discovery referee (although it uses the term “discovery referee throughout”).

Defendant Intervenors Pleasant Valley County Water District, Guadalasca Mutual Water Company, and defendants John S. Broome and Rancho Guadalasca, LLC, filed a response to both proposals (the Pleasant Valley Response) in which they state that they do not oppose the description of the role and accompanying tasks as described in either proposal.

Defendant Arnold H. Meyerstein, trustee of the Meyerstein Family Trust filed a partial joinder in the above-defendants’ proposal (the Meyerstein Trust Response), stating on this issue: “Whether titled ‘discovery referee’ or ‘special master’, the appointee should be given functions that include discovery referee and retaining a data consultant for the initial disclosures’ compilation, manipulation, analysis, and presentation. An appropriate title would insulate the appointee from disqualification challenges.”

Defendant Deardoff-Jackson Company filed an opposition to plaintiffs’ proposal (the Deardoff-Jackson Response) focusing on cost allocation (discussed below) and not taking a position on the issue of special master or discovery referee. (Note: Deardoff-Jackson Company identifies itself as self-represented in its caption and is signed by an individual on its behalf. As plaintiffs note in their opposition, an entity may not appear in litigation without an attorney of record. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145 [“[A] corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.”].) This representation issue is not now before the court, but needs to be addressed by Deardoff-Jackson Company.)

Defendants Saticoy Properties, LLC, State Ready Mix, Inc., and State Ready Mix Recycling, Inc., filed a response (the Saticoy Response) stating their position with respect to the person to be appointed, particularly responding to the above-defendants’ proposal.

Defendant United States filed a response (the United States Response) which generally supports the appointment of a third-party neutral, whether as a referee or special master.

Defendants John W. Borchard, Jr., trustee, Suzanne Kelly, trustee, J. David Borchard, trustee, Marilyn Bachler Unruh, trustee, Edward B. Chamberlain, trustee, Hibbs Properties, LLC, Jacob J. Talbot, and Angelina C. Juaraz filed a response to both proposals (the Borchard Response). These defendants support appointing a special master.

These parties have also filed responses to other parties’ contentions. The court has reviewed all of the papers filed by the parties.

The difference between a special master under section 845 and a discovery referee under section 639 is one of breadth. A special master under section 845 may have broad authority under the direction of the court.

“The court may appoint one or more special masters whose duties may include the following:

            “(1)      Investigating technical and legal issues, as directed by the court. The special master shall compile a report of findings in accordance with Section 846.

            “(2)      Conducting joint factfinding with the parties, their designees, or both.

            “(3)      Investigating the need for, and developing a proposal for, a preliminary injunction pursuant to Article 13 (commencing with Section 847).

            “(4)      Performing other tasks the court may deem appropriate.” (Code Civ. Proc., § 845, subd. (a).)

“The special master shall make a draft report available to the parties and provide at least 60 days for the parties to submit written objections to the draft report.” (Code Civ. Proc., § 846, subd. (a).) “An objection to the draft report shall identify the specific grounds and evidence on which the objection is based.” (Code Civ. Proc., § 846, subd. (b).) “The special master may notice and hold hearings, as he or she deems appropriate, to gather information or address issues raised in the objections to the draft report.” (Code Civ. Proc., § 846, subd. (c).) “The special master shall consider the objections to the draft report and develop a final report that shall be filed with the court, together with supporting evidence.” (Code Civ. Proc., § 846, subd. (d).)

By contrast, a discovery referee under section 639, where the appointment is not with the consent of all parties, has much narrower authority.

“When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640:

            “(1)      When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein.

            “(2)      When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect.

            “(3)      When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action.

            “(4)      When it is necessary for the information of the court in a special proceeding.

            “(5)      When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc., § 639, subd. (a).)

“In a discovery matter, a motion to disqualify an appointed referee pursuant to Section 170.6 shall be made to the court by a party either:

            “(A)     Within 10 days after notice of the appointment, or if the party has not yet appeared in the action, a motion shall be made within 10 days after the appearance, if a discovery referee has been appointed for all discovery purposes.

            “(B)     At least five days before the date set for hearing, if the referee assigned is known at least 10 days before the date set for hearing and the discovery referee has been assigned only for limited discovery purposes.” (Code Civ. Proc., § 639, subd. (b).)

“When a referee is appointed pursuant to paragraph (5) of subdivision (a), the order shall indicate whether the referee is being appointed for all discovery purposes in the action.” (Code Civ. Proc., § 639, subd. (c).)

Two issues are presented by the parties in their discussion of this issue. The first is the application, if any, of disqualification pursuant to section 170.6. Some parties have indicated their intent to exercise whatever rights they have under section 170.6 if the appointed discovery referee is not acceptable to them. (E.g., Saticoy Response, at p. 3.) Others have argued that section 170.6 disqualification absolutely does not apply to groundwater adjudications regardless of what section is used as the basis for appointment of a neutral. (See Code Civ. Proc., § 838, subd. (c).)

The court agrees with the point made by the Meyerstein Trust that an appropriate title may obviate issues regarding the application of section 170.6—if indeed it has any application here. Moreover, as discussed below regarding scope, the tasks to be performed by the third-party neutral are now envisioned to be a bit broader than that typically assigned to a discovery referee under section 639. Accordingly, the court determines that the appropriate approach is to appoint a special master under section 845.

(2)       Scope of Authority and Discovery Dispute Resolution

As the court indicated in its prior rulings, the initial stage of Phase 1 is to gather and exchange information necessary to address Phase 1 issues, whether by settlement or trial. In order to accomplish this effectively, a discovery plan is required before the parties commence discovery. The task of the special master will be to evaluate the scope of available information through initial disclosures and the discovery needs of the parties. The court expects this evaluation will lead to a reasonable and efficient discovery plan, including appropriate deadlines and guideposts. The court will leave it to the special master to take appropriate steps to see this occurs expeditiously.

To the extent that discovery disputes arise in the course of discovery, the court will  assign to the special master the resolution of all such disputes, subject to review by the court. Again, the special master may accomplish this in whatever manner is most appropriate and is consistent with law. The court will not constrain the special master to any specific briefing procedure or schedule.

It is not now contemplated that that special master would act independently to investigate or to find facts. It is also not now contemplated that that the special master engage any third parties to collect, organize, or distribute data. It may, or may not, prove advisable to do so after the discovery plan is developed, but the court prefers a recommendation or proposal from the special master before authorizing such additional expense or expanding the scope of the special master’s commission.

(3)       Special Master Appointment

Plaintiffs propose a special master to be appointed from among: (i) Hon. Patrick J. Walsh (ret.); or (ii) Hon. Mitchell Beckloff (ret.).

The San Buenaventura Response proposes a special master to be appointed from among: (ii) Hon. Mitchell Beckloff (ret.); (iii) Hon. Jack Komar (ret.); or (iv) Hon. James Smith (ret.). This proposal is joined by FCGMA. Certain of those joining the San Buenaventura Response have expressed reservations as to the appointment of Judge Walsh.

The Oxnard Union Response joins in the proposal of Judge Beckloff, but does not oppose the appointment of Judge Walsh. The Pleasant Valley Response also supports the appointment of either Judge Beckloff or Judge Walsh. The United States Response supports the appointment of Judge Beckloff, or if Judge Beckloff is not available, the appointment of Judge Walsh. The Borchard Response supports either Judge Beckloff or Judge Walsh.

The Meyerstein Trust Response supports the appointment of Judge Beckloff.

The Deardoff-Jackson Response does not take a position on who should be appointed, but disputes whether a special master is required (and more particularly how a special master should be compensated).

The Saticoy Response supports the appointment of Judge Walsh and opposes the appointment of Judge Komar.

Based upon the totality of these responses, it appears that Judge Beckloff is the best candidate, being both qualified and not subject to any party’s specific objection. At least as of May 23, 2024, Judge Beckloff has confirmed that he is available and willing to be considered for this appointment. (Newmark decl., dated July 12, 2024, ¶ 3.) Subject to confirmation that Judge Beckloff remains available, the court will appoint Judge Beckloff as special master.

(4)       Allocation of Special Master Fees and Costs

The most contentious issue presented here is the manner is which the fees and costs of the special master are allocated among the parties to this litigation. (Note: A separate discussion of caps follows the allocation discussion, below.) There are several alternatives and qualifications proposed:

(i)        Plaintiffs propose a two-category approach to allocation. Category 1, work that impacts specific parties litigating specific issues, and category 2, work generally assisting all parties. Category 1 fees and costs would be allocated by the special master only to the parties litigating those issues, making recommendations as to the allocation among those parties. Category 2 fees would be allocated one-third pro-rata by law firm (or party if self-represented), and two-thirds pro-rata by each party’s average annual groundwater pumped from the OPV Basins between 2017 and 2019 as reported to FCGMA. The United States by statute is exempt from all such fees, and the United States’ share is not considered in determining pro rata amounts. (All parties appear to acknowledge the exemption of the United States from these fees and costs. All further discussions and proposals, below, should be understood to include this exemption. Because the United States is exempt, it takes no position as to allocation among the other parties.)

(ii)       The San Buenaventura Response, joined by FCGMA, also proposes a two-category approach based on specific (category 1) and general (category 2) special master activities. For category 1 fees and costs, the fees should be split equally between the moving (50 percent) and responding (50 percent) parties. Category 2 fees and costs should be allocated 50 percent to plaintiffs and 50 percent to defendants, with the respective 50 percent amount further divided equally by party.

(iii)      The Oxnard Union Response joins the San Buenaventura proposal, but notes that some parties may need to seek relief because of their size or circumstances and that for category 1 fees and costs the special master should be able to recommend shifting fees based upon the nature of the discovery conduct.

(iv)      The Pleasant Valley Response supports a cost-sharing framework that is representative of each party’s draw on the Basin’s resources and so supports plaintiffs’ proposal and does not support the San Buenaventura Response proposal.

(v)       The Meyerstein Trust Response proposes a meet and confer as to allocation after initial disclosures are assessed, but there should be a distinction between non-participant defendants. The Meyerstein Trust Response proposes, as among defendants, an initial allocation of $50 for each defendant individual or family landowner or small non-profit entity and granting exemptions for entities seeking 2 AFY or less and farming in a disadvantaged community or classed as a small farmer under Code of Civil Procedure section 850, with the remainder allocated by stipulation.

(vi)      The Saticoy Response does not take a position on allocation of fees and costs.

(vii)     The Deardoff-Jackson Response opposes the plaintiffs’ proposal, arguing that category 2 work does not actually benefit self-represented defendants who should not have to pay any special master fees or costs. While questioning whether there is any value to special master work for that class of defendants, this response suggests that plaintiffs should pay all such costs as the principal beneficiary of such costs.

Apart from the abstract formula to be used to allocate costs, these proposals also point out the numerical effect of these choices given the number of parties and the total amount of funds to be raised by the allocation. With respect to the total amount of funds, plaintiffs propose a cap of $250,000 without further court authorization. The San Buenaventura Response proposes an initial cap of $200,000. Neither of these proposals provide a factual basis for these amounts.

With respect to number of plaintiffs, the declaration of counsel for the City of Oxnard, attorney Gregory Newmark, provides a count of the parties by position in this litigation: 462 parties, of which 168 are plaintiffs, collectively represented by one firm, and 294 defendants. (Newmark decl., dated July 12, 2024, ¶ 8.) If $200,000 is allocated first 50/50 plaintiffs/defendants and then per party, the results would be: each plaintiff would pay $595.24; each defendant would pay $340.14. If $200,000 is allocated strictly per party, each party would pay $432.90. These numbers would, of course, change with the respective denominator as parties may be excluded for reasons of size or circumstance. Under plaintiffs’ proposal the allocation is more complicated because it depends on how each party is represented and how much water each party is reporting as pumped.

Everyone appears to agree that the United States is statutorily exempt from being charged with any such fees. Consequently, that exemption, including the exclusion of the United States from any pro-rata calculation, will be part of the court’s order.

As a general proposition, the court agrees as to category 1 fees and costs that the parties engaged in a discovery dispute should initially bear the fees and costs associated with that dispute 50 percent to the moving party or parties and 50 percent to the responding party or parties, with the special master being authorized to recommend a reallocation of such fees and costs depending upon the circumstances of the particular dispute. As this is consistent with discovery practice involving discovery referees in less complex cases, there does not appear to be substantial dispute about this allocation method for this type of fees and costs.

The court’s authority as to special master fees is as follows:

“The court shall fix the special master’s compensation on the basis and terms stated in the appointing order, and the court may set a new basis and new terms after giving the parties notice and an opportunity to be heard. The court shall allocate payment of the special master’s compensation among the parties in an amount and a manner that the court deems equitable. The court may waive a party’s obligations to pay the special master’s compensation upon a showing of good cause.” (Code Civ. Proc., § 845, subd. (b).)

The difficulty with allocating category 2 fees and costs is that each of the proposals is equitable in some respects and not equitable in others. The two principal competing equitable concepts are that “[h]e who takes the benefit must bear the burden” (Civ. Code, § 3521) and “[e]quality is equity” (In re Miller’s Estate (1963) 212 Cal.App.2d 284, 298).

As to benefits and burdens, those whose participation in this litigation is minimalist should not be burdened to the same extent as those who are lead players. The suggestion of setting a threshold of 2 AFY appears to be reasonable (i.e., that to obtain such an exemption a party would file a stipulation that it does not, and will not, seek more than that amount in this litigation ), although the effect of such a threshold on the remaining parties, either in dollars or as a denominator, is unclear. The court is concerned about the perception suggested in some papers that an allocation of such costs may become a “pay to play” regime. However, the amounts under discussion for special master fees and costs are modest, especially compared with the attorney fees and other party litigation costs and considering the significance of the rights of each party being resolved by this litigation.

At the same time, the court finds it equitable that if certain parties are unequally benefitting from the special master proceedings (not by virtue of success in making or opposing proposals, but in the underlying purposes of the proceedings) it may be appropriate for those parties to bear a larger share of the expenses. This may make allocation in some sense correlate to the size of their claim of water rights or to some other measure of significance of the discovery proceedings. Whatever might eventually be the best answer (there is clearly no obvious “right” answer), the court is not in a position to anticipate such a nuanced allocation at this time. This analysis suggests that the issue should be reviewed later with input from the special master.

In terms of “equal” allocations, the court does not favor any allocation that is proportional to the number of law firms or self-represented individuals. One fairness issue raised as to such an allocation (one-third of category 2 fees and costs under plaintiffs’ proposal) is that because plaintiffs are collectively represented by one law firm, under such an allocation all plaintiffs would have only one share of a third of the costs, as compared with one share for each separately represented party. Parties already receive a benefit from sharing their attorney fees based upon the work of their attorneys and the economies of scale that may apply to such sharing. The underlying benefit to the parties is not dependent upon party choice to prefer unique representation or small groupings of litigants. This aspect of plaintiffs’ proposal is rejected.

As between a “per party” (irrespective of position in the litigation) allocation and a plaintiff-defendant split first followed by an allocation among plaintiffs and defendants, respectively, the difference is, based on the numbers presented but not adjusted for exemptions, not very significant in absolute dollars. Because the court will not resolve these issues now, further discussion among the parties of this issue is warranted. The court reminds the parties that the aggregate cost in attorney time of an aggressive dispute is likely to exceed whatever savings might be achieved through an otherwise “more favorable” allocation scheme.

This leaves the following issues outstanding:

(1)       Is Judge Beckloff willing to accept this appointment at this time? Assuming he remains willing:

(2)       How much money is necessary for the organizational meetings/ hearings with Judge Beckloff? Once the amount necessary for start-up is determined, the court will finalize an initial allocation to assess this amount from the parties. This initial allocation is not intended to represent the interim or final allocation, but is to get the process started so that Judge Beckloff can provide a recommendation as to the allocation and mechanism for ongoing payments. To the extent the initial allocation differs from the interim or final allocation, the court expects to address the interim or final allocation retroactively so that any relative over-payments or under-payments made initially are credited or debited against the allocation as if it had been initially determined. The parties’ further input or agreement regarding this initial allocation is also needed.

(3)       What process should exist to determine exemptions from assessment on the basis of de minimis participation or other circumstances?

(4)       What orders are necessary to meet statutory requirements to appoint and effect the special mastership as discussed herein?

The court will make such orders at the next case management conference.

This leaves the final issue of when the next case management conference should be held given the need to meet and confer as discussed herein. There is now a case management conference scheduled for August 9, 2024. Counsel will need to be able to discuss whether this case management conference should be rescheduled.