0
0
No. B255408
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION SIX
IN
GOLDEN STATE WATER COMPANY
Plaintiff
and Appellant
vs.
WATER DISTRICT CASITAS MUNICIPAL WATER
CASITAS MUNICIPAL
DISTRICT
COMMUNITY
INTERESTED
OJAI ALL PERSONS
IN THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT
FACILITIES DISTRICT NO. 2013.1
RESOLUTIONS
NOS.
13.12
13.13
AND
13.14
ET
AL
Defendants and Respondents.
On Appeal
from the Ventura
County Superior Court
No. 56-2013-00433986-CU-WM-VTA
The Honorable Kent M. Kellegrew
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF IN SUPPORT OF APPELLANT
GOLDEN STATE WATER COMPANY
AND
AMICUS CURIAE BRIEF. OF PARK WATER COMPANY
IN SUPPORT OF APPELLANT
GOLDEN STATE WATER COMPANY
SBN 62538
SBN 63396
SBN 253819
Stephen N. Roberts
Martin A. Mattes
Mari R. Lane
NOSSAMAN LLP
50 California Street 34th Floor
San Francisco
Tel
Fax
415
415
E-mail
CA
94111
438-7273
398-2438
mmattes@nossaman.com
Attorneys
for
Park Water
Amicus Curiae
Company
No. B255408
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION SIX
IN
GOLDEN STATE WATER COMPANY
Plaintiff
and Appellant
vs.
WATER DISTRICT CASITAS MUNICIPAL WATER
CASITAS MUNICIPAL
DISTRICT
COMMUNITY
INTERESTED
FACILITIES
DISTRICT NO.
2013.1
OJAI ALL PERSONS
THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT
RESOLUTIONS NOS. 13.12 13.13 AND 13.14 ET AL
IN
Defendants and Respondents.
On Appeal from
No.
the Ventura
County Superior Court
56-2013-00433986-CU-WM-VTA
The Honorable
Kent M. Kellegrew
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF IN SUPPORT OF APPELLANT
GOLDEN STATE WATER COMPANY
AND
AMICUS CURIAE BRIEF. OF PARK WATER COMPANY
IN SUPPORT OF APPELLANT
GOLDEN STATE WATER COMPANY
Stephen
SBN 62538
SBN 63396
SBN 253819
N. Roberts
Martin A. Mattes
Mari R. Lane
NOSSAMAN LLP
50 California Street 34x Floor
San Francisco
Tel
Fax
415
415
CA
94111
438-7273
398-2438
E-mail mmattes@nossaman.com
Attorneys
for
Park Water
9020145.x1
Amicus Curiae
Company
No. B255408
IN
GOLDEN STATE WATER COMPANY
Plaintiff
and Appellant
vs.
CASITAS MUNICIPAL
DISTRICT
COMMUNITY
INTERESTED
WATER DISTRICT CASITAS MUNICIPAL WATER
FACILITIES DISTRICT NO. 2013.1
OJAI ALL PERSONS
THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT
RESOLUTIONS NOS. 13.1213. 13AND 13.14 ET AL
IN
Defendants and Respondents.
On
Appeal from
the
Ventura County
Superior Court
No. 56-2013-00433986-CU-WM-VTA
The Honorable Kent M. Kellegrew
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
IN
SUPPORT OF APPELLANT
GOLDEN STATE WATER COMPANY
S
Park Water
California
file
the
Company Park
Water
through
Rules of Court Rule 8.200 subdivision
its
c
attorneys and pursuant to the
respectfully
applies
for leave
to
following amicus curiae brief in support of Appellant Golden State Water
Company Golden State.
1.
r
r
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION SIX
Identity and Interest of Amicus Curiae
Park Water
jurisdiction
is
an investor-owned
of the California Public
water
service
Commission
Utilities
provider whose prospective business interests
l
9020145.v1
utility
may
provider subject to the
CPUC.
As
a water service
be impaired by an order of this court
0
the decision
sustaining
the issues in this case
court of
the
of the
and seeks
they relate to the valuation
as a going
The
25
2014.
and not simply the
court should consider that perspective
Park Water
is
familiar with the
Park Water values
sum
of the value of
in assessing
is
a community
the Mello Roos
Act
is
facilities
presented
2.
in
the
district
is
the
its
its
business
tangible
MWD
case before
and the
a public water agency
all
Code
53311
this
et seq.
of the assets of a public water system
owned and operated by Golden State which
above-referenced.
assets.
legal issues in this case.
pursuant to Government
authorized to acquire
serving the City of Ojai that
filed
qualified to assist the court in determining
whether the Casitas Municipal Water District Casitas
creating
Opening Brief
facts of this case the questions involved
scope of parties presentations to date and
by
of this case by informing
Appellants
in
interest in
Park Water has a unique interest in the issues as
of an ongoing business.
concern
Park Water has a unique
to assist in the proper resolution
support for the arguments presented
its
with this court on September
enterprise
court in this case
trial
is
an issue
honorable court.
Funding and Authorship
Pursuant to California Rules of Court rule 8.200
asserts that
no
party or counsel
amicus brief or any part of it
for a party in the pending appeal
nor did they
preparation
or submission of the
preparation
and submission of
brief.
this
make
any monetary
Park Water
application
2
9020145.v1
subdivision
is
c3
authored
Park Water
this
contribution
proposed.
to fund the
the only entity that funded the
and proposed amicus
brief.
3.
Conclusion
For the reasons
that the court
set
forth
above amicus curiae Park Water
accept the brief below for
filing
and consideration
respectfully requests
in this appellate
proceeding.
Dated
January
NOSSAMAN LLP
28 2015
By
Ma
in A. Mattes
Attorneys for Amicus Curiae
Park Water
3
9020145.v1
Company
No. B255408
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION SIX
GOLDEN STATE WATER COMPANY
Plaintiff
and Appellant
vs.
CASITAS MUNICIPAL
DISTRICT
COMMUNITY
INTERESTED
WATER DISTRICT CASITAS MUNICIPAL WATER
FACILITIES DISTRICT NO. 2013.1 OJAI ALL PERSONS
THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT
RESOLUTIONS NOS. 13.12 13.13 AND 13.14 ET AL
IN
Defendants and Respondents.
On Appeal
from the Ventura
No. 56-2013-0043
County Superior Court
3986-CU-WM-VTA
The Honorable Kent M. Kellegrew
AMICUS CURIAE BRIEF OF PARK WATER COMPANY
IN SUPPORT OF APPELLANT
GOLDEN STATE WATER COMPANY
9020145.v1
TABLE OF CONTENTS
1.
INTRODUCTION
II.
ARGUMENT
III.
CONCLUSION
.................................................................................................
.........................................................................................................
.....................................................................................................
RULE 8.204C1 CERTIFICATION
.
ý.
i
9020145.v1
2
TABLE OF AUTHORITIES
Pages
Statutes
Gov.
and Rules
Code
California
53311
et seq.
Mello-Roos
Rules of Court Rule
8.204c1
ii
9020145.v1
Act
..........................................................
......................................................................
1
2
1
INTRODUCTION
1.
Amicus curiae
Park Water
is
subject to the jurisdiction
Since
1937 Park Water has worked
through what are
now 28000
communities
San Bernardino
decades Park Water has
the communities
customers
at
Given
services
it
serves.
From
its
a
investment
first-rate
this
use of financing
is
concerned
its
three
and
in Californias
located
in providing quality service to
53311
water
For.
water service operation within
its
a valued business enterprise
about the implications of the
Act Government Code
CPUC.
Missoula Montana.
serving
decades-long investment and commitment to
Park Water
by
water
Park also wholly owns two
Water Company
Water Company
built and maintained
provided
Dominguez
of Los Angeles County.
reasonable rates Park Water has created
of the Mello-Roos
et seq.
the
its
water systems and
trial
courts interpretation
Act
as authorizing
the
under the Act to condemn an operating public water system.
ARGUMENT
H.
The
trial
courts interpretation of the Mello-Roos Act as allowing bond funding
under the Act to purchase intangible
business goodwill and other valuable
and
Lynwood/Rancho
County and Mountain
Commission
Utilities
connections
service
Apple Valley Ranchos
subsidiary water utilities
an investor-owned
safe reliable water service to
to provide
systems in the Compton/Willowbrook
Bellflower/Norwalk
Water
of the California Public
utility
customers
Company Park
the
Legislatures
forced acquisition
by
intent.
property - including Golden States
assets
Moreover
is
contrary
to the plain
the use of Mello-Roos
eminent domain of property
1
9020145.x1
-
water rights
words of the
Act funding
statute
to effectuate
and finance the resulting litigation are
a
not the type of expenditures - incidental or otherwise
The
trial
court mistakenly
of the
application
statute.
effect
the other
of undermining
how
hand
the
III.
sum
of
its
to finance the condemnation
sustaining the
to conclude
its
Park Waters
pipes tanks
and
corollary that Mello-Roos funding
wells.
is
that the
courts decision would have the
trial
utility
to
of an operating public
a business enterprise targeted for condemnation
an ongoing business enterprise
the simple
of the electorate to guide
canons of statutory construction
Mello-Roos Act may not be used
On
will
contemplated by the Act.
Park Water urges this court to reverse that error and instead
adhere to the well-established
water system.
the
allowed
-
operation
is
worth
is
valued.
much more
As
than
This court should recognize that fact and
not available to acquire such intangible
assets.
CONCLUSION
For the reasons
above and those stated in Appellants
respectfully requests. this court to reverse the
January
28
2015
decision of the
Respectfully
Opening Brief Park Water
court below.
submitted
NOSSAMAN LLP
By
Ma
A. Mattes
Attorneys for Amicus Curiae
Park Water
2
9020145.x1
Company
RULE 8.204C1 CERTIFICATION
As
this
required
document
is
13
at
by Rule
point
8.204c1
of the California Rules of Court
font and contains
have relied upon the word count function
412 words.
of Microsoft
In
Word
making
this
Date
January
28
2015
NOSSAMAN LLP
By
Ma
n A. Mattes
Attorneys for Amicus Curiae
Park Water
9020145.v1
Company
certify that
certification
the computer
to prepare the brief.
I
I
program used
PROOF OF SERVICE
I
LLP
am
of the United
States over 18 years of age employed by Nossaman
and not a party to the subject cause.
34th Floor
On
FILE
a citizen
San Francisco
January
28 2015
I
served the following
WATER COMPANY
thereof to be mailed by
I
business
address
50 California Street
is
CA 94111.
AMICUS CURIAE BRIEF
STATE
My
first
on
IN
APPLICATION FOR LEAVE TO
SUPPORT OF APPELLANT GOLDEN
the parties to these actions
class mail to all parties listed
on
declared under penalty of perjury that the foregoing
Executed on January
28
2015
at
San Francisco
by causing
the
is
attached
true
and
California
Phan
4287072.v1
a true copy
service
correct.
list.
Service
George M. Soneff
Manatt Phelps
Dennis Larochelle
Phillips
W. Oympic Blvd
11355
Los Angeles
List
LLP
8
CA 90064
Fl
Arnold Blueel LaRochelle
Zirbel
300 Esplanade Drive
Oxnard
Jeffrey
M. Oderman
Law
611 Anton Blvd.
Ryan Blatz
Law
407 Bryant Circle
Ojai
CA 93023
4287072.v1
Office of
Ventura
Mesa CA 92626-1998
Ryan.Blatz
93036
1001 Partridge
Suite 1400
Costa
CA
Suite
2100
Allen R. Ball
Tucker LLP
Rutan
Mathews
A2
Ball.
Drive
CA 93003
Yorke
Suite
330
No. B255408
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION SIX
IN
GOLDEN STATE WATER COMPANY
Plaintiff
vs.
WATER DISTRICT CASITAS MUNICIPAL
CASITAS MUNICIPAL
COMMUNITY
WATER
OJAI ALL PERSONS
INTERESTED IN THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT
RESOLUTIONS NOS. 13.12 13.13 AND 13.14 ET AL
DISTRICT
FACILITIES DISTRICT
NO.
2013.1
Defendants and Respondents.
On Appeal
from the Ventura County
Superior Court
No. 56-2013-00433986-CU-WM-VTA
The Honorable Kent M. Kellegrew
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF IN SUPPORT OF APPELLANT
GOLDEN STATE WATER COMPANY
AND
AMICUS CURIAE BRIEF OF THE CALIFORNIA
WATER ASSOCIATION IN SUPPORT OF APPELLANT
GOLDEN STATE WATER COMPANY
SBN 62538
SBN 63396
SBN 253819
Stephen N. Roberts
r
Martin A. Mattes
Mari R. Lane
NOSSAMAN LLP
50 California Street 34th Floor
San Francisco
W
0.
and Appellant
Tel
Fax
415
415
CA
94111
438-7273
398-2438.
E-mail mmattes@nossaman.com
Attorneys
-
California
for
Amicus Curiae
Water Association
No. B255408
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION SIX
IN
GOLDEN STATE WATER COMPANY
Plaintiff
and Appellant
vs.
CASITAS MUNICIPAL
h
DISTRICT
COMMUNITY
INTERESTED
WATER DISTRICT CASITAS MUNICIPAL WATER
FACILITIES
DISTRICT NO.
2013.1
OJAI ALL PERSONS
THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT
RESOLUTIONS NOS. 13.12 13.13 AND 13.1.4 ET AL
IN
Defendants and Respondents
On Appeal from
the
Ventura County
Superior Court
No. 56-20.13-00433986-CU-WM-VTA
The Honorable
Kent M. Kellegrew
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF IN SUPPORT OF APPELLANT
GOLDEN STATE WATER COMPANY
AND
AMICUS CURIAE BRIEF OF THE CALIFORNIA
WATER ASSOCIATION IN SUPPORT OF APPELLANT
GOLDEN STATE WATER COMPANY
SBN 62538
SBN 63396
SBN 253819
Stephen N. Roberts
Martin A. Mattes
Mari R. Lane
NOSSAMANLLP
50 California Street 34th Floor
San Francisco
CA
94111
Tel
415
438-7273
Fax
.41
398-2438.
E-mail mmattes@nossaman.com
Attorneys
California
r.
9020146.v1
for
Amicus Curiae
Water Association
r
No. B255408
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION SIX
IN
GOLDEN STATE WATER COMPANY
Plaintiff
and Appellant
vs.
CASITAS MUNICIPAL
COMMUNITY
DISTRICT
INTERESTED
WATER DISTRICT CASITAS MUNICIPAL WATER
FACILITIES DISTRICT NO.2013.1
OJAI ALL PERSONS
THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT
RESOLUTIONS NOS. 13.12 13.13 AND 13.14 ET AL
IN
Defendants and Respondents.
On Appeal from
the Ventura
County Superior Court
No. 56-2013-00433986-.CU-WM-VTA
The Honorable Kent M. Kellegrew.
M
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
IN
SUPPORT OF APPELLANT
GOLDEN STATE WATER COMPANY
The
California
Water Association
the California Rules of
to file
the
CWA
through
Court Rule 8.200 subdivision
c
its
attorneys
respectfully
and pursuant
applies
for.
to
leave
following amicus curiae brief in support of Appellant Golden State Water
Company Golden State.
Identity and Interest of Amicus Curiae
1.
CWA
utility
is
a statewide organization
service providers
Utilities
Commission
representing
that are subject to the jurisdiction
CPUC. CWA
water
of the California Public
has a unique interest in the issues in this case as
1
9020146.v1
Californias investor-owned
they relate to the water utilities
efforts
water
of providing that service.
at
rates reflecting
CWA
is
the cost
familiar with the facts
to provide
of
the public
with safe reliable drinking
case the questions involved
this
and the scope
of parties presentations to date and seeks to assist the court in addressing the issue as to
MWD
whether Casitas Municipal Water District Casitas
S
creating
a community
Mello-Roos
serving the
Act
facilities
district
pursuant to Government
authorized to acquire
is
of the assets
all
City of Ojai that is.owned and operated
subject to
CPUC
jurisdiction
CWA
of.
Code
53311
by..
et seq.
the
a public water system
As.the representative
qualified to assist the
is
agency
by Golden State an investor-owned
CPUC.
water utility.subject to the jurisdiction of the
utilities
a public water
of water.
court in determining
r..
this
issue.
CWA
Moreover
believes that there
is
necessity for the
foregoing
assistance.
Funding and Authorship
-2.
0
Pursuant to California Rules of Court rule 8.200
that
no
party or counsel
brief or any part of it
for
a party
nor did they
preparation or submission of.the
preparation
and submission of
in the pending
make
brief.
subdivision
this application
is
CWA
states
appeal authored this proposed amicus
any monetary contribution
CWA
c3
the
to fund the
only person or entity that funded the
and the proposed ainicus
brief..
S.
It
is
noted that Golden State
Golden
State has not
made
is
a
member of
and pays dues on a regular basis but
any payment related in any way_ to
submission of the proposed amicus
brief.
2
9020146.v1
CWA
CWAs
preparation
and
Conclusion
3.
For the reasons set forth above
the
court accept
Dated
January
the brief
28 2015
below
amicus curiae
for filing
and
CWA
consideration
respectfully requests
in this appellate proceeding.
NOSSAMAN LLP
By
Nfartin A. Mattes
Attorneys for Amicus Curiae
California
S
r
3
9020.146.v1
that
Water Association
No. B255408
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION SIX
GOLDEN STATE WATER COMPANY
Plaintiff
and Appellant
vs.
CASITAS MUNICIPAL
DISTRICT
WATER DISTRICT CASITAS MUNICIPAL WATER.
COMMUNITY
INTERESTED
FACILITIES DISTRICT NO. 20.13.1 OJAI ALL PERSONS
THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT
RESOLUTIONS NOS. 13.12 13.13 AND 13.14 ET AL
IN
Defendants and Respondents.
On Appeal from
the Ventura
County Superior Court
No. 56-2013-00433986-CU-WM-VTA
The Honorable Kent M. Kellegrew.
AMICUS CURIAE BRIEF OF. THE CALIFORNIA
WATER. ASSOCIATION IN SUPPORT OF APPELLANT
GOLDEN STATE WATER. COMPANY
9020146.x1
TABLE OF CONTENTS
Page
1.
INTRODUCTION
II.
STATEMENT
III.
CASE... ...
o..o.o.o .............
oo
......
0
....
o.o
.............
oo
........
THE MELLO-ROOS ACT CANNOT BE USED TO FINANCE AN
EMINENT DOMAIN ACTION TO ACQUIRE ALL OF AN ONGOING
BUSINESS
IV.
OF THE
ENTERPRISE....
CONCLUSION
...................
......................................
RULE 8.204C1 CERTIFICATION
9020146.v1
..............................................................
oo..oo.
1
TABLE OF AUTHORITIES
Pages
Cases
Com.
Community Development
1989
People ex
212.Ca1.App.3d
rel.
1984
v.
1297
Asaro
....................................
of Transportation
Dept.
36 Cal.3d 263
v.
Muller
..................
....
4
Statutes
Civ.
Code
655
......................
Code Civ.Proc.
1263.510
Gov. Code
.5331
Gov.
Code
53311
Gov.
Code
53313.5
...Gov.
Code 533.17
et seq.
..
Act
Mello-Roos
.............
2 4
......................................................
..............
.........
.........................
..........
........................
...................
ii
..............................................................
5
4
.......................
............
8.204c1
2
2
................................................................................................
California Rules of Court Rule
9020146.v1
2
.......
......
...
4
1
1.
INTRODUCTION
Amicus curiae
organization
is
the California
representing
CWA
represents
its
member
administrative agencies
Legislature
utility
State.
and
in state
water
Water Company
CPUC
before the
utilities
Golden State
utilities
provide
CPUC.
Control Board the California
which group
retail
utilities
other California
and federal courts on matters affecting
water
water
Commission
Utilities
such as the State Water Resources
CPUC-regulated
industry.
a.statewide
the interests of Californias investor-owned
of the California Public
subject to the jurisdiction
CWA
Water Association
water
the
investor-owned
includes Appellant
utility
water
Golden
service to
approximately sixteen percent of Californias water service customers.
CWAs
membership
is
diverse in terms of size geographical
composition water supply and a host of other factors.
a concern
shared
among
by public agencies of
owned and operated
But
Californias 113 investor-owned
their
power of eminent domain
by investor-owned
arguments presented by Golden State in
there is
water
than for the use
to seize ownership
September
25
customer
no more fundamental
utilities
companies..CWA concurs
its
location
in
of water systems
and supports
the
2014 Opening Brief while
also
seeking. through this amicus curiae brief to inform the court of the industrys
perspective on an issue in
II
STATEMENT
The
this
case that
is
of concern
to all of
CWAs
members.
OF THE CASE
issues before this court have
been presented as
i
whether the condemnation
of an operating public water system through the use of eminent domain
that a public- agency. can finance with bonds
1
9020146.x1
and
special property taxes
is
a
purchase
authorized by
Government Code. 53311
condemnation
results
in.
the Mello-Roos
et seq.
a taking
of intangible
Act
and ii
property that
is
whether.
the
not permitted under the
Mello-Roos Act.
A
key question
therefore
to fund a condemnation
to fund the
is
not just whether Mello-Roos financing
is
may
be used
of property but also whether Mello-Roos financing can be used
condemnation of an ongoing business enterprise.
The answer
to that question
No.
III.
THE MELLO-ROOS ACT CANNOT BE USED TO FINANCE AN
EMINENT DOMAIN ACTION THAT ACQUIRES AN ONGOING.
BUSINESS ENTERPRISE.
A
tangible
public
assets including business goodwill.
derisively.to
such shallow
in the
pumps and
assets such as wells pipes
intangible
referred
water systems overall business value includes not only the value of
Golden States supposed
dismissal of the value
storage
tanks but also the value of
Civ. Code
lack
655.
Respondents
have
of goodwill in the community.
of business goodwill
is
an incorrect
But
characterization
eminent domain context.
An
eminent domain action condemning
an ongoing business enterprise must.
compensate the owner of the targeted business not just for the tangible property of the
business but also for
entitling the
goodwill
.1297
its
entire going
concern
owner of a condemned business
see also
Community Development
1301-1302 explaining
that
a
Code.
Civ. Proc.
to compensation
Com.
comprehensive
2
9020146.x1
value..
v.
1263.510.
for loss of business
Asaro 1989. 212 Cal.App.3d
revision to Californias eminent
f..
law
domain
goodwill.
in 1975 expressly authorized
In the
compensation for the loss of business
case of a viable business enterprise such as Golden States water
value could exceed by a wide margin
system serving the City of Ojai the going concern
the value of tangible
property dedicated
going concern. value
-
property
for
to the
of the business.
for under a variety
of headings
the
between
difference
which compensation must be paid - and
comprises the intangibleassets
accounted
The
business.
the
the value of tangible
may be
assets
Intangible
most prominent of which
business
is
goodwill.
Because
definitive
this case
evidence
is
that the intangible
opposite
is
2
case..
assets are of
In any event
record that assumes intangible
action itself
However from
of such values.
assumed
the
not the condemnation
it
no
this
the record does not contain.
lack of evidence
Indeed
significant value.
would not be
assets have little
or
no
or
value.
cannot
CWA
to reach
appropriate
it
believes the.
a result on
as discussed
be
below
this
that
they therefore could be acquired through a Mello-Roos financing.
2
Casitas
Respondents
District
No. 2031.1
MWD
together
States pipes improvements
and
Casitas
approach.
Casitas Respondents
from
But
the
for
Golden States
Brief at 51.
Casitas. is
income. generated
by operating
owner of
utilitys
from
the building.
the building is the
by
same
as the
and
owner of
assets reflects
the business enterprise that utilizes those
3
9020146.v1
intangible
of Golden
assets
would be
wrong. By way of example
the building is wholly
The condemning
pipes wells and other tangible
generated
for the value
the building can be valued using the income
the business. enterprise that uses that building
generates
pay
and other. tangible property by using the income approach
an agency condemns a building
the
argue that they will
thus concludes that any compensation
duplicative.
if
and Casitas Municipal Water District Community Facilities
separate
and
distinct
the profits the business enterprise
agency
must pay
the business.
for
Here
both even
valuing a water
only a portion of the income
improvements.
if
Another
way
of looking
an eminent domain claim
Those
the assets of an ongoing business enterprise
damages
damages
for deprivation
accepted
v.
Muller
that goodwill
profits of a business or
0
anticipated
profits..
-
the business
terms
may be
the
similar.
latter
is
characterized
as the value of an
defined to include
way
53313.5
of
holding that Courts have.long
the present value of
calculating
of characterizing
the
ongoing business
acquisition
or as the
business concern
assets of
the intangible
pursuant to
is
of intangible
payment of damages
not
A.
its.
life
of
assets whether
purchase
to
within the
can be used to pay incidental expenses
property such aspects of an ongoing business do not
expenses related to planning
constructing
53317.
fall
expenses. Under the Mello-Roos Act incidental
the physical
The
intangible
facilities
organizing
a community
authorized to be purchased
assets at issue here cannot
4
9020146.v1
Dept.
statute.
definition of incidental
Code
method of
another
for the loss of an ongoing
other than tangible
Gov
rel.
Mello-Roos Act expressly provides that financing
While Mello-Roos financing
and
People ex
plus the present
used onlyto purchase real or other. tangible property with a useful
meaning of the
district
263 271
assets taken
of its business goodwill.
longer Gov. Code
five years or
compensate
The
36 Cal.3d
future business
be measured by the capitalized value of the net income or
by some
the value
Because
1984
may
of a viable
consist of the value of tangible
value of future income to be earned from the business.
Transportation
subject to
compensation to be paid to the owner of the
to consider the
as a form of
targeted enterprise
opportunity.
is
at
for.
items
under the
expenses
are
facilities
by
reasonably.
the
statute.
be said to
0
fall
any of these categories of expenses.
into
profitable ongoing
business concern
like
the business goodwill of a
In any event
Golden
State
more than incidental by
is
its
nature.
As discussed
the
through condemnation
acquisition
enterprise including an acquisition
by
the
Mello-Roos
If one
assets.
were
Act which by
its
used.
of an ongoing business
assets.
owned by
assets
CWA
that
the
would be
an ongoing business.
was
acquisition
Even were the
for tangible
court
the
outer limit
for
submits that the entirety of any such
were
to conclude
property the decision in
this
that
it
some
is
the acquisition
of
part of the
case should be limited to such
property.
CONCLUSION
The
the use of
trial
courts decision
is
flawed because
Mello-Roos financing to condemn an
it
fails
operating
to recognize the limitations
public water system
ongoing business enterprise the value of which far exceeds the value of
pumps
of tangible
enterprise and break
would be an improper use of Mello-Roos funds because
acquisition
cannot be funded
It
available only for acquisition
is
value of the going. business
which Mello-Roos funds could be
IV.
terms
to try to value the tangible
that value out from the
specific
of substantial intangible
is
tanks trucks and other tangible
S
interpretation
applied by the
trial
assets.
If this court
court condemning
employ and apply Mello-Roos bond funding
far
were
the plain
an
wells pipes
to sustain the broad
public agencies
beyond
its
-
on
would be
words and
able to
intent of the
investor-owned
This has the potential
statute.
water
utilities
across
to impair the business. operations
the state.
For the reasons
5
9020146.v1
set forth
and prospects of
above and those
stated in
Golden States
principal briefs
reverse the decision
January
on
the merits
CWA
respectfully
urges this court to
of the court below.
28 2015
Respectfully
submitted
NOSSAMAN LLP
By
Martin A. Mattes
Attorneys
California
6
9020146.x1
for
Amicus Curiae
Water Association
RULE 8.204C1 CERTIFICATION
As
document
by Rule
required
is at
13
8.204c1
of the California Rules of Court
point font and contains
have relied upon the word count function
1416 words.
of Microsoft
In
making
Word
the
January
28
2015
M
in A. Mattes
Attorneys for Amicus Curiae
California
S.
1.
9020146.vi
I
computer program used
NOSSAMAN LLP
By
certify that this
this certification
to prepare the brief.
Date
I
Water Association
PROOF OF SERVICE
I
LLP
am
and not
34th Floor
On
FILE
a citizen of the United
States over 18 years of age employed by Nossaman
a party to the subject cause.
San Francisco
January
CA
28 2015
I
served the following
WATER COMPANY
thereof to be mailed by
I
declared
first
business
address
50 California Street
on
IN
APPLICATION FOR LEAVE TO
SUPPORT OF APPELLANT GOLDEN
the parties to these actions
class mail to all parties listed
on
under penalty of perjury that the foregoing
Executed on January
is
94111.
AMICUS CURIAE BRIEF
STATE
My
28
2015
at
San Francisco
by causing
the attached
is
service
true and correct.
California
Kim Phan
4287072.v1
a true copy.
list.
r
Service List
George M. Soneff
Manatt Phelps
Dennis Larochelle
Phillips
W. Oympic Blvd
1.1355
Los Angeles
CA
LLP
8t F1
Arnold Blueel LaRochelle
300 Esplanade
90064
Oxnard
Jeffrey
Rutan
61.1
M. Oderman
Tucker
LLP
Law
407
Blatz
92626-1998
Law
Bryant. Circle Suite
Ojai CA 93023
4287072.v1
CA 93036
Office of Ball
Ventura
Ryan Blatz
Ryan
2100
Yorke
1001 Partridge Drive Suite 330
Suite 1400
Mesa CA
Drive
Allen R. Ball
Anton Blvd.
Costa
Mathews
Zirbel
A2
CA 93003