BILL NUMBER: AB 1390 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 6, 2015
AMENDED IN ASSEMBLY MAY 18, 2015
AMENDED IN ASSEMBLY APRIL 30, 2015
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Members Alejo, Gomez, and Perea
(Principal coauthors: Assembly Members Bigelow, Gray, Olsen, and
Salas)
(Principal coauthors: Senators Cannella, Hueso, and Vidak)
(Coauthors: Assembly Members Cooley, Cooper, Eggman, Frazier,
Gallagher, Ridley-Thomas, Wilk, and Wood)
(Coauthors: Senators Fuller, Galgiani, and Nielsen)
FEBRUARY 27, 2015
An act to add Chapter 7 (commencing with Section 830) to Title 10
of Part 2 of the Code of Civil Procedure, relating to groundwater.
LEGISLATIVE COUNSEL'S DIGEST
AB 1390, as amended, Alejo. Groundwater: adjudication.
The California Constitution requires that the water resources of
the State be put to beneficial use to the fullest extent of which
they are capable. Under the Sustainable Groundwater Management Act,
which applies to all groundwater basins in the state, all basins
designated as high- or medium-priority basins by the Department of
Water Resources as basins that are subject to critical conditions of
overdraft, as specified, are required to be managed under a
groundwater sustainability plan or coordinated groundwater
sustainability plans by January 31, 2020.
This bill would establish special procedures for an
adjudication action, a comprehensive adjudication,
which is defined as an action filed in superior court to
comprehensively determine the rights to extract groundwater
within a basin or store water from a basin, as specified.
in a basin. The bill would authorize the court
to determine all rights to groundwater in a basin whether based on
appropriation, overlying right, or other basis of right. The bill
would require these special procedures to govern all
adjudication actions comprehensive adjudications
except in specified cases not involving a
comprehensive allocation of a basin's groundwater
supply. supply or cases that can be resolved among a
limited number of parties and that do not involve a comprehensive
determination of rights to extract groundwater within the basin.
This bill would require a complaint filed in an adjudication
action to name certain defendants, including all counties or
cities that provide water service and overlie general
or special districts managing or replenishing groundwater resources
in the basin in whole or in part, and to be served and
published in a specified manner. The bill would require the complaint
to be accompanied by a draft notice and draft form answer, as
specified, and certain disclosures related to the plaintiff's
groundwater use. The bill would require the court to hold a
preliminary hearing within 180 days of the filing of the complaint to
determine if the action should proceed to comprehensively determine
groundwater rights in rights to extract
groundwater within the basin in accordance with the special
procedures for adjudication actions.
comprehensive adjudications. If the court makes that
determination, based on a finding that at least one of 4 specified
conditions is met, the bill would require the court to issue an order
declaring the case an adjudication action a
comprehensive adjudication and authorizing the service of the
landowners of the basin. After the court order authorizing service of
the landowners of the basin, the bill would require the plaintiff to
file an ex parte application seeking court approval of the draft
notice and draft form answer filed with the complaint. If the court
approves the draft notice and draft form answer, the bill would
require the assessor or assessors tax
collector or tax collectors of the county or counties in which
the basin to be adjudicated lies to include the court-approved notice
and form answer with the next annual property tax bill
sent to each landowner in the basin.
identified by the plaintiff, as specified. The bill would
require the plaintiff plaintiff, and other
parties as may be ordered by the court, to reimburse the
assessor or assessors tax collector or tax
collectors for the costs of including the court-approved notice
and form answer with the property tax bills and, after those
materials have been included with the property tax bills, would
require the plaintiff to file a declaration under penalty of
perjury with the court attesting to
a notice of the completion of the mailing. By
expanding the scope of an existing crime, the bill would impose a
state-mandated local program. The bill The bill, on
the 60th day following completion of the mailing, as described above,
would deem fulfillment of the service and publication
provisions as effective service of process of the complaint and
notice on all interested parties of the adjudication action
comprehensive adjudication for purposes of
establishing in rem jurisdiction and the comprehensive effect of the
adjudication action. comprehensive
adjudication.
This bill would authorize the court to convene an initial
a case management conference within 60
days of completion of service of the complaint and notice, as
described above, at such time the court deems
appropriate, after which the court could divide the
adjudication action comprehensive adjudication
into phases. phases' based on its own
discretion or the motion of a party. The bill would require the
court to define the scope of any phase of the adjudication
action comprehensive adjudication by written
order and order. The bill would provide
that the court's discretion is not limited in ordering as many phases
as the court deems appropriate for the expeditious and appropriate
resolution of competing claims to the groundwater basin. In a phase
of an adjudication action, a comprehensive
adjudication, the bill would require discovery to be strictly
limited to the scope of the phase and would authorize the court to
issue a written statement of decision at the completion of each
phase. In addition, the bill would require each party to make, under
penalty of perjury, specified initial disclosures to all other
named parties and a special master, if one has been assigned in the
action, within 60 days after the initial case
management conference, appearing in the comprehensive
adjudication, except a plaintiff would be required to make the
initial disclosures at the time it files the complaint. By expanding
the scope of an existing crime, the bill would impose a
state-mandated local program. The bill would authorize the court to
appoint a special master in an adjudication action, and
in a comprehensive adjudication, who may be one or
more individuals, to report on legal and factual issues designated
under a specific order of reference. The bill would provide
that the special master's duties could include, among other things,
initiating a technical committee to conduct joint factfinding
regarding the basin and would require the special master to compile a
technical report of the findings, as specified. On or before January
1, 2017, the bill would require the Department of Water Resources to
establish and maintain a list of individuals who may serve as
special masters in adjudication actions
comprehensive adjudications and would prescribe the experience
needed for an individual to be placed on the list.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 7 (commencing with Section 830) is added to
Title 10 of Part 2 of the Code of Civil Procedure, to read:
CHAPTER 7. ACTIONS RELATING TO GROUNDWATER RIGHTS
Article 1. General Provisions
830. (a) The Legislature finds and declares all of the following:
(1) Diverse economic, environmental, and social interests are
implicated by sustainable groundwater management.
(2) Efficient resolution of conflicts concerning the right to use
and manage groundwater will promote beneficial use of the waters of
the state consistent with Section 2 of Article X of the California
Constitution, the state water policies mandated in Chapter 1
(commencing with Section 100) of Division 1 of the Water Code, and as
intended by the Sustainable Groundwater Management Act (Part 2.74
(commencing with Section 10720) of Division 6 of the Water Code).
(3) Previous comprehensive groundwater adjudication
actions have taken more than a decade before issuance of a final
judgment by the court in an adjudication the
action.
(4) In light of the scope and complexities of comprehensive
groundwater adjudication actions, the state's welfare will be
promoted by the development of specially tailored legal procedures to
efficiently process actions to comprehensively determine rights
to extract groundwater adjudication actions.
in a basin.
(b) It is the intent of the Legislature to do all of the
following:
(1) Develop procedures to provide a more streamlined and
expeditious groundwater adjudication process,
efficient process to comprehensively adjudicate groundwater rights,
while at the same time fully respecting established principles
of water rights law and providing participants appropriate due
process.
(2) Establish procedures by which courts may conduct comprehensive
determinations of all rights to extract
groundwater in a basin.
(3) Encourage early resolution of groundwater rights disputes.
(4) Substantially reduce the time and expense of
comprehensive groundwater adjudications, while ensuring fair
procedures to protect all parties' rights to groundwater.
(5) Ensure the judicial process is not used to unnecessarily delay
or thwart the goal of managing groundwater in a sustainable manner.
(6) Reduce the burdens placed on the judiciary under the current
adjudication process.
830.5. For purposes of this chapter, the following definitions
apply:
(a) "Adjudication action" means an action filed in superior court
to determine the rights to extract groundwater within a basin or
store water from a basin, including, but not limited to, an action to
quiet title respecting rights to extract or store groundwater or an
action brought to impose a physical solution on a basin.
(b)
(a) "Basin" means a groundwater basin or subbasin
identified pursuant to Section 839.
(c)
(b) "Bulletin 118" means the department's report
entitled "California's Groundwater: Bulletin 118" updated in 2003, as
it may be subsequently updated or revised.
(d)
(c) "Complaint" means a complaint filed in superior
court to determine rights to extract groundwater and includes any
cross-complaint that initiates an adjudication action
a comprehensive adjudication in response to a
plaintiff's complaint or other cross-complaint.
(d) "Comprehensive adjudication" means an action filed in superior
court to comprehensively determine rights to extract groundwater in
a basin.
(e) "Department" means the Department of Water Resources.
(f) "Groundwater" means water beneath the surface of the earth
within the zone below the water table in which the soil is completely
saturated with water, but does not include water that flows in known
and definite channels.
(g) "Groundwater extraction facility" means a device or method for
extracting groundwater from within a basin.
(h) "Groundwater recharge" means the augmentation of groundwater,
by natural or artificial means.
(i) "Person" includes, but is not limited to, counties, local
agencies, state agencies, federal agencies, tribes, business
entities, and individuals.
(j) "Plaintiff" means the person filing the complaint initiating
an adjudication action a comprehensive
adjudication and includes a cross-complainant who initiates
an adjudication action a comprehensive
adjudication by cross-complaint.
(k) "Sustainable Groundwater Management Act" means the provisions
of Part 2.74 (commencing with Section 10720) of Division 6 of the
Water Code.
831. (a) This Except as provided in
subdivision (e), this chapter establishes special procedures
for an adjudication action. action that would
comprehensively determine rights to extract groundwater in a basin,
whether based on appropriation, overlying right, or other basis of
right. This chapter applies to an Indian tribe and the federal
government, to the extent authorized by federal law. This
chapter shall not alter groundwater rights or the law concerning
groundwater rights. The other provisions of this code apply to
procedures in an adjudication action a
comprehensive adjudication to the extent they do not conflict
with the provisions of this chapter.
(b) In an adjudication action subject to this chapter, the court
may determine, in the proceedings provided for in this chapter, all
rights to groundwater in a basin whether based on appropriation,
overlying right, or other basis of right.
(c)
(b) The court's final judgment in an
adjudication action, a comprehensive adjudication,
as to the right to groundwater of each party, may declare the
priority, amount, purposes of use, extraction location, and place of
use of the water, together with appropriate injunctive relief,
subject to terms adopted by the court to implement a physical
solution in the adjudication action.
comprehensive adjudication.
(d)
(c) The procedures of this chapter shall govern all
adjudication actions, unless the court finds either of the
following, in which case comprehensive adjudications.
If the court finds any one of the following, the action shall
proceed in accordance with other provisions of law:
(1) The action concerns only claims that the operation of a party'
s groundwater extraction facility is interfering with the physical
availability of groundwater to one or more other parties' groundwater
extraction facility or facilities and does not involve an
a comprehensive allocation of the basin's
groundwater supply.
(2) The action concerns only claims to extract, or to prevent
interference with extractions of, a specific source of groundwater
recharge and does not involve an a
comprehensive allocation of the basin's groundwater supply.
(3) The action can be resolved among a limited number of parties
and does not involve a comprehensive determination of rights to
extract groundwater within the basin.
(e)
(d) In implementing this chapter and applying the other
provisions of this code in an adjudication action,
a comprehensive adjudication, the court should expedite
resolution of the adjudication action
comprehensive adjudication and, where a groundwater
sustainability plan is required pursuant to the Sustainable
Groundwater Management Act, the court should encourage the parties to
cooperatively develop a groundwater sustainability plan that may
serve as the basis of a stipulated judgment setting forth a physical
solution for management of the basin.
(e) This chapter does not apply to the Antelope Valley Groundwater
Cases (Judicial Council Coordination Proceedings No. 4408).
Article 2. Commencement of Action
832. (a) Unless a court orders otherwise for good cause, the
complaint in an adjudication action a
comprehensive adjudication shall name all of the following
persons as defendants:
(1) All counties or cities that provide water service and overlie
the basin in whole or in part.
(2)
(1) All general or special districts empowered
to manage or replenish managing or replenishing
groundwater resources of in the basin
in whole or in part.
(3)
(2) The operator of a public water system that uses
groundwater from the basin to supply water service.
(4)
(3) The operator of a state small water system that
uses groundwater from the basin to supply water service.
(b) The complaint in a comprehensive adjudication shall identify
all counties or cities that provide water service and overlie the
basin in whole or in part.
(b)
(c) Within 30 days of the filing of the complaint,
all both of the following shall occur:
(1) The plaintiff shall serve the complaint on all persons named
as defendants pursuant to subdivision (a) and all counties or
cities identified in the complaint pursuant to subdivision (b)
in the manner prescribed by Article 3 (commencing with Section
415.10) of Chapter 4 of Title 5.
(2) The plaintiff shall publish notice of the complaint pursuant
to Section 6066 of the Government Code.
(3) The plaintiff, or its representative, shall personally appear
at a meeting of the board of supervisors of each county overlying the
basin at least in part, and announce that the plaintiff has filed
the adjudication action and where copies of the complaint may be
obtained.
(4) The court shall allow any person to intervene in the
adjudication action upon an ex parte application that demonstrates
that the person holds fee simple ownership in a parcel in the basin.
A person filing the ex parte application shall give notice to the
plaintiff consistent with the California Rules of Court.
(d) The court shall allow the following persons to intervene in
the comprehensive adjudication:
(1) A county or city identified in the complaint pursuant to
subdivision (b). A county or city identified in the complaint
pursuant to subdivision (b) that files an ex parte application shall
give notice to the plaintiff consistent with the California Rules of
Court.
(2) A person demonstrating, upon an ex parte application, that
that person holds fee simple ownership in a parcel in the basin. A
person filing the ex parte application shall give notice to the
plaintiff consistent with the California Rules of Court.
832.5. (a) Within 180 days of the filing of a complaint to
adjudicate groundwater rights, the court shall conduct a preliminary
hearing to determine if the action should proceed to comprehensively
determine groundwater rights in rights to
extract groundwater within the basin in accordance with this
chapter. At the preliminary hearing the court may hear expert or lay
testimony and the plaintiff shall demonstrate one of the following:
(1) There is substantial evidence that declining groundwater
levels may cause an undesirable result in the basin.
(2) The court cannot provide adequate relief among the potential
claimants to a groundwater right in the basin subject to the
adjudication action comprehensive adjudication
unless the adjudication action comprehensive
adjudication is completed.
(3) The parties sufficient to comply with Section 847
Pursuant to Section 847, the parties
have agreed to a proposed judgment in the adjudication
action. comprehensive adjudication.
(4) Consistent with Section 2 of Article X of the California
Constitution, the interests of groundwater rights holders will be
expeditiously and effectively served by the completion of the
adjudication action. comprehensive
adjudication.
(b) If, after the preliminary hearing, the court finds that any
condition described in paragraphs (1) to (4), inclusive, of
subdivision (a) is met, the court shall issue an order declaring that
the case is an adjudication action a
comprehensive adjudication subject to this chapter and
authorizing service of landowners in accordance with Section 833.
(c) If, after the preliminary hearing, the court finds that no
condition described in paragraph paragraphs
(1) to (4), inclusive, of subdivision (a) is met, the court
shall either dismiss the adjudication action
without prejudice, or find that the action is not subject to this
chapter under Section 831 and permit the action to proceed pursuant
to the other provisions of this code.
(d) Before the preliminary hearing , the court may
allow expedited discovery consistent with this chapter.
limited to the matters listed in paragraphs (1) to
(4), inclusive, of subdivision (a). The court shall actively
manage the expedited discovery to minimize the burdens on
responding parties and to prevent delays in order to enable, to
the greatest extent possible and pursuant to Section 833, service of
landowners through the next annual mailing of property tax
bills within the basin.
833. (a) Together with the filing of At
the same time as filing the complaint, the plaintiff shall
file both lodge all of the
following: following with the court:
(1) (A) A draft notice titled "NOTICE OF
COMMENCEMENT OF GROUNDWATER BASIN ADJUDICATION" in no less than
20-point font and the following text printed immediately below the
draft notice title in no less than 14-point font:
"THIS NOTICE IS IMPORTANT. ANY RIGHTS YOU CLAIM TO PUMP OR STORE
GROUNDWATER FROM THE BASIN IDENTIFIED IN THIS NOTICE MAY BE AFFECTED
BY A LAWSUIT INITIATED BY THE COMPLAINT SUMMARIZED BELOW.
A copy of the complaint may be obtained by contacting the
plaintiff or the plaintiff's attorney identified in this notice. If
you claim rights to pump or store groundwater within the basin,
either now or in the future, you may become a party to this lawsuit
by filing an answer to the lawsuit on or before the deadline
specified in this notice notice. You may file
an answer by completing the attached form answer and
answer, filing it with the court indicated in
this notice and by notice, and sending
a copy of the form answer to the plaintiff or the plaintiff's
attorney.
Failing to participate in this lawsuit could have a significant
adverse effect on any right to pump or store groundwater that you may
have. You may seek the advice of an attorney in relation to this
lawsuit. Such attorney should be consulted promptly. A case
management conference in this groundwater basin adjudication
proceeding shall occur on the date specified in this notice. If you
intend to participate in the groundwater adjudication proceeding to
which this notice applies, you are advised to attend the initial case
management conference in person or have an attorney represent you at
the initial case management conference.
Participation requires the production of all information regarding
your groundwater use. You must provide this information by the date
identified in this notice.
A form answer is provided for your convenience. You may fill out
the form answer and file it with the court. Should you choose to file
the form answer, it will serve as an answer to all complaints and
cross-complaints filed in this case."
(B) The following information shall be provided immediately
following the text described in subparagraph (A):
(i) The name of the basin that is the subject of the comprehensive
adjudication.
(ii) A space to be completed with the case number assigned to the
comprehensive adjudication, and the name and address of the court and
department to which the action is assigned.
(iii) The name, address, telephone number, and email address of
the plaintiff, or plaintiff's attorney, from which the complaint may
be obtained.
(iv) A statement advising anyone claiming the right to use
groundwater within the basin that he or she must file an answer with
the court within 30 days after service by mail, as provided for in
this section.
(v) A summary of the causes of action alleged in the complaint and
the relief sought. The summary shall not exceed 25 lines.
(2) (A) A draft form answer titled "ANSWER TO ADJUDICATION
COMPLAINT" in no less than 20-point font and the following text
printed immediately below the draft form answer title in no less than
14-point font:
"The undersigned denies all material allegations in the complaint
or cross-complaint in this action that seeks to adjudicate rights in
the groundwater basin and asserts all applicable affirmative defenses
to that complaint."
(B) Notwithstanding any other law, the filing of an answer in the
form described in subparagraph (A) in an adjudication action
a comprehensive adjudication is sufficient to
put at issue all material allegations and applicable affirmative
defenses to the complaint in the adjudication action.
comprehensive adjudication. If a party intends
to seek adjustment of the basin's boundaries, it shall disclose that
intention in the form answer described in subparagraph (A).
(b) The draft notice described in paragraph (1) of subdivision (a)
shall include the following information immediately following the
text described in paragraph (1) of subdivision (a):
(1) The name of the basin that is the subject of the adjudication
action.
(2) A space to be completed with the case number assigned to the
adjudication action, and the name and address of the court and
department to which the action is assigned.
(3) The name, address, telephone number, and email address of the
plaintiff, or plaintiff's attorney, from which the complaint may be
obtained.
(4) A space to be completed with a date upon which the court will
hold a case management conference. The court shall determine the date
for the case management conference.
(5) The date an answer must be filed with the court.
(6) A summary of the causes of action alleged in the complaint and
the relief sought. The summary shall not exceed 25 lines.
(3) The initial disclosures required to be lodged by the plaintiff
pursuant to Section 840.
(c)
(b) Within 15 days of a court order authorizing service
of landowners pursuant to this section,
subdivision (b) of Section 832.5, the plaintiff shall file an
ex parte application that seeks the court's approval of plaintiff's
draft notice and draft form answer filed pursuant to subdivision (a).
The plaintiff shall give at least 24 hours'
shall provide notice of the hearing on the
ex parte application to all parties identified in
subdivision (a) of Section 832 and any other party the plaintiff has
served. in accordance with the California Rules of
Court regarding ex parte hearings. Notice may be provided
electronically. The plaintiff's notice of the ex parte
application shall include a copy of the draft notice and draft form
answer filed pursuant to subdivision (a).
(d)
(c) Once the court approves the draft notice,
the draft notice service of that notice in accordance
with this section shall substitute for the summons otherwise
provided for in civil actions pursuant to Section 412.20.
(e)
(d) Following a court order authorizing service of
landowners pursuant to this section, the plaintiff shall identify, as
expeditiously as possible and using the records of the
assessor or assessors tax collector or tax collectors
of the county or counties in which the basin to be adjudicated
lies, the assessor parcel numbers of all real property within
the basin and the names and addresses of all holders of fee
title to real property within the basin. The plaintiff shall provide
the court and all parties with notice of its acquisition
of, or sufficient access to, this information. Upon receipt of the
court order authorizing service of landowners pursuant to this
section and the plaintiff's draft notice and draft form answer, as
approved by an order of the court, the assessor or assessors
tax collector or tax collectors shall include
the court-approved notice and form answer with the next annual
property tax bill sent to each landowner in the basin.
identified by the plaintiff in accordance with this
subdivision. The plaintiff , and other parties as may be
ordered by the court, shall reimburse the assessor or
assessors tax collector or tax collectors for
the costs of including the court-approved notice and form
answer, unless otherwise ordered by the court. answer.
The assessor or assessors tax
collector or tax collectors may appear at any court proceeding
concerning the costs associated with including the court-approved
notice and form answer with the property tax bills. The court
may authorize alternative means of service in accordance with this
subdivision, as it deems appropriate.
(f)
(e) After the assessor or assessors
tax collector or tax collectors include the court-approved
notice and form answer with the property tax bills pursuant to
subdivision (e), (d), the plaintiff
shall file with the court a declaration under penalty or
perjury attesting to notice of the completion of
the mailing.
(f) Following a court order authorizing service of landowners
pursuant to this section, the plaintiff shall serve any known person
that pumps groundwater who would not otherwise be served pursuant to
subdivision (d) of this section or noticed pursuant to paragraph (1)
of subdivision (c) of Section 832. Service pursuant to this
subdivision may be by personal delivery or by mail in the manner
prescribed by Article 3 (commencing with Section 413.10) of Chapter 4
of Title 5.
(g) Service on the United States shall be made in accordance with
Section 666 of Title 43 of the United States Code.
(h) The court may authorize any other procedures it finds
appropriate and necessary to provide notice to persons who may hold
groundwater rights in the basin.
(g)
(i) Notwithstanding On the 60th
day following completion of the mailing, as set forth in
this section, and notwithstanding any other law, the
fulfillment of the service provisions of this section, the
publication provisions of paragraph (2) of subdivision (b)
(c) of Section 832, and the remaining service
and notice provisions of this chapter shall be deemed effective
service of process of the complaint and notice on all interested
parties of the adjudication action
comprehensive adjudication for purposes of establishing in rem
jurisdiction and the comprehensive effect of the
adjudication action. comprehensive adjudication.
(j) The tax collector or tax collectors shall notify the plaintiff
and the court of any problems with carrying out his or her
obligations under this section. If the tax collector or tax
collectors complete the mailing based upon the best available
information, neither a county, nor an officer or employee of a
county, shall be liable for any injury caused by an act or omission
in the interpretation or application of this section, including,
without limitation, an injury arising from any defect in service
arising out of a tax collector's or tax collectors' actions or
omissions in providing the notice described in this section.
(k) The court may require notice to be made available in languages
other than English.
(l) The plaintiff shall provide the draft notice and draft answer
to the department. The department shall post the draft notice and
draft answer on the department's Internet Web site within 15 days of
receipt.
(m) Section 389 shall not apply to a failure to join the United
States or an Indian tribe to a comprehensive adjudication.
834. Within 15 days of the service of a complaint against or by a
local agency in an adjudication action, a
comprehensive adjudication, the court may, and upon the motion
of any party, party the court
shall either transfer the adjudication action for all purposes to a
neutral county or shall, request the
chairperson of the Judicial Council to assign a
disinterested judge from a neutral county to hear the
adjudication action comprehensive
adjudication for all purposes. For purposes of this section,
"local agency" has the same definition as that term is defined in
subdivision (m) of Section 10721 of the Water Code.
835. In an adjudication action a
comprehensive adjudication there may only be two
disqualifications of judges pursuant to Section 170.6,
notwithstanding the provisions of Section 170.6 concerning sides in
an action. 170.6, and only one disqualification by
each side. For purposes of this section, in a comprehensive
adjudication the parties claiming overlying groundwater rights will
be on one side of the action and the parties claiming appropriative
groundwater rights will be on the other side of the
action. A request or motion to disqualify a judge under Section
170.6 shall be filed within 30 days of completion of
service after service is completed pursuant to
Section 833, or within 30 days of a transfer or assignment
pursuant to Section 834. 833 and within 30 days of a
judge being assigned.
836. (a) An adjudication action
comprehensive adjudication is presumed to be a
complex case within the meaning of Rule 3.400 of the California Rules
of Court unless a party demonstrates that the adjudication
action comprehensive adjudication is
not complex.
(b) The presiding judge
shall assign a comprehensive adjudication to one judge for all
purposes.
837. Service of pleadings and papers in an
adjudication action, a comprehensive adjudication,
other than the complaint initiating an adjudication
action, a comprehensive adjudication, shall
occur electronically to the greatest extent possible. If
available, service shall occur through a court-provided electronic
service system. If a court-provided electronic service system is
unavailable, The court may provide, or authorize the
use of, an electronic service system. If an electronic service system
is not provided or authorized by the court, the court and the
parties shall serve documents by email or other equivalent electronic
means to the greatest extent possible. To enable electronic service
of pleadings, pleadings and papers, the
attorneys of record or parties representing themselves shall include
their an email address for
service in the captions of all pleadings they file
in the adjudication action. comprehensive
adjudication.
Article 3. Conduct of Action
838. (a) In managing an adjudication action,
a comprehensive adjudication the court may,
notwithstanding any other law, convene a case management conference
within 60 days after service is completed pursuant to
Section 833. at such time the court deems appropriate.
(b) After the initial service is completed
pursuant to Section 833 and a case management conference
is held, the court may , based on its own discretion or
the motion of a party, divide the adjudication action
comprehensive adjudication into phases. This
section shall does not limit the court'
s discretion to order as many phases as the court deems appropriate
for the expeditious and appropriate resolution of competing claims to
the groundwater basin. The court shall define the scope of any phase
of the adjudication action comprehensive
adjudication by written order and shall revisit that definition
only upon a demonstration that continuing with the phase as
previously defined would substantially impede the expeditious
resolution of the adjudication action.
comprehensive adjudication.
(c) In a phase of an adjudication action,
a comprehensive adjudication, discovery shall be strictly
limited to the scope of the phase, as defined in the court's written
order. The court may make any appropriate orders to ensure that
discovery during a phase remains within the scope of the phase and,
unless an injustice would otherwise result, shall impose monetary
sanctions on parties, attorneys, or both parties and attorneys, who,
during the phase, propound discovery outside the scope of the phase.
(d) Pursuant to Section 632, a court may issue a written statement
of decision at the completion of each phase of the
adjudication action. comprehensive adjudication.
If the court issues a written statement of decision, that written
statement of decision shall be considered a resolution of the phase
and shall be binding for the remainder of the adjudication
action comprehensive adjudication unless reversed
or modified by an appellate court. Appellate review of a court's
written statement of decision that concludes a phase of the
adjudication action comprehensive adjudication
may be by writ only and a party may only appeal the court's final
judgment.
(e) A court may facilitate the formation of a class or classes of
overlying groundwater rights holders pursuant to the criteria
specified in Section 382.
839. (a) Subject to subdivision (b), the initial basin boundaries
for an adjudication action a comprehensive
adjudication shall be the basin boundaries identified in
Bulletin 118 as of the date the complaint initiating the
adjudication action comprehensive adjudication
is filed. Based on these boundaries, the court and the
parties shall initiate The plaintiff shall use these
boundaries in initiating the procedures to serve the complaint
on landowners in an adjudication action
a comprehensive adjudication in accordance with Section
833.
(b) The court may consider adjusting a basin's boundaries at the
initial phase of an adjudication action. a
comprehensive adjudication. The court may refer consideration
of adjustment of a basin's boundaries to the department for
recommendations in accordance with the procedures described in
Section 10722.2 of the Water Code. The court may stay any proceedings
in the adjudication action comprehensive
adjudication pending the department's resolution of any
boundary adjustments, except the court shall not stay the
parties' adjustments. During the stay, the court may
require the parties to make initial disclosures made
pursuant to Section 840.
(c) If a court, based on department
following receipt of the department's recommendations,
adjusts determines the basin's boundaries
after completion of the initial phase of an adjudication
action, separately and before the trial of other
issues in the comprehensive adjudication, the basin's
boundaries, boundaries as determined by the
court, court shall be the basin's
boundaries for all purposes in all subsequent phases of the
adjudication action. comprehensive adjudication.
Appellate review of a court's determination of the basin's
boundaries after completion of the initial phase of the
adjudication action may be by writ only and shall not be
subject to any later writ or appeal.
840. (a) Except as otherwise stipulated by the parties or ordered
by the court, and without waiting for a discovery request, a party
shall provide the court or special master to
all other named parties and, if one has been assigned in the action,
the special master, initial disclosures that include all of the
following information:
(1) The name, address, telephone number, and email address of the
party completing the a form developed
pursuant to subdivision (b).
(2) The quantity of any groundwater extraction from the basin by
the party, or the party's representative or agent, during each of the
10 calendar years immediately preceding the filing of the complaint.
(3) The claimed basis of the right to extract groundwater.
(3)
(4) The beneficial purpose of any use of groundwater
from the basin or the beneficial use of any alternative water use
that the party claims as its use of groundwater.
(4)
(5) The location of any extraction of groundwater from
the basin by the party, or the party's representative or agent.
(5)
(6) The location of any beneficial use of groundwater
from the basin or beneficial use of any alternative water use that
the party claims as its use of groundwater.
(6)
(7) The quantity of any beneficial use of any
alternative water use that the party claims as its use of groundwater
under any applicable law, including, but not limited to, Section
1005.1, 1005.2, or 1005.4 of the Water Code.
(7)
(8) Identification of all surface water rights and
contracts that the party claims provides the basis for its water
right claims in the adjudication action.
comprehensive adjudication.
(8)
(9) The quantity of any replenishment of water to the
basin that augmented the basin's native water supply, resulting from
the intentional storage of imported or non-native water in the basin,
managed recharge of surface water, or return flows resulting from
the use of imported water or non-native water on lands overlying the
basin by the party, or the party's representative or agent, during
each of the 10 calendar years immediately preceding the filing of the
complaint.
(9)
(10) The names, addresses, telephone numbers, and email
addresses of all persons possessing information that supports the
party's disclosures.
(10)
(11) Any other information deemed appropriate by the
court for initial disclosure in an adjudication action.
a comprehensive adjudication.
(b) The Judicial Council shall may
develop a form for initial disclosures made pursuant to subdivision
(a) to facilitate the consistent, independent, impartial, and
accessible administration of adjudication actions.
comprehensive adjudications. The Judicial Council may
coordinate with the department in developing the form.
(c) (1) Unless otherwise stipulated by the parties or ordered by
the court, and not including the plaintiff that initiates the
adjudication action, comprehensive
adjudication, a party shall make the initial disclosures
described in subdivision (a) within 60 days after the
initial case management conference in the adjudication action.
appearing in the comprehensive adjudication.
(2) A plaintiff that initiates the adjudication action
a comprehensive adjudication shall make the
initial disclosures described in subdivision (a) at the time it files
the complaint by lodging the required information with the court in
an electronic format. The plaintiff shall serve the required
information on the defendants or cross-defendants that it names when
it serves the complaint.
(3) The court may order, after the initial case management
conference, any supplemental disclosures, other than those described
in subdivision (a), that may expedite resolution of the
adjudication action. comprehensive adjudication.
(d) Unless otherwise ordered by the court, a party that is first
served, or otherwise joined to the adjudication action,
comprehensive adjudication, after the initial
case management conference shall make the disclosures described in
subdivision (a) within 30 days after being served or joined, unless a
different time is set by stipulation of the parties or an order of
the court. The court shall liberally consider any motions or
applications to extend the time for a newly-served or -joined party
to make the disclosures described in subdivision (a).
(e) A party shall make its initial disclosures based on the
information then reasonably available to it. A party is not excused
from making its initial disclosures because it has not fully
investigated the case, because it challenges the sufficiency of
another party's disclosures, or because another party has not made
its disclosures.
(f) A party that has made its initial disclosures, as described in
subdivision (a), or that has responded to another party's discovery
request, shall supplement or correct a disclosure or response in
either of the following situations:
(1) In a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect and the
additional or corrective information has not otherwise been made
known to the other parties during the disclosure or discovery
process.
(2) As ordered by the court.
(g) To the greatest extent possible, a party shall serve his or
her initial disclosures electronically through a
court-provided an electronic service system,
an electronic document repository, email, or another
method of electronic transmission. If it is not possible for the
party to serve his or her disclosures electronically, he or she shall
serve the disclosures in an electronic format saved on a portable
storage media device such as a compact disc or flash drive.
(h) A party's obligations under this section may be enforced by a
court on its own motion or the motion of a party pursuant to Section
2030.300.
(i) A party's disclosures under this section shall be verified
under penalty of perjury as being true and correct to the best of the
party's knowledge.
841. (a) In addition to all other disclosures required by this
chapter, a party shall disclose to the other parties the identity of
any expert witness it may use at trial to present evidence. For
purposes of this chapter, "expert witness" means a witness qualified
pursuant to Section 720 of the Evidence Code.
(b) Unless otherwise stipulated by the parties or ordered by the
court, the disclosure made pursuant to subdivision (a) shall be
accompanied by a written report prepared and signed by the expert
witness if the witness is retained or specially employed by the party
offering the expert witness to testify as an expert in the action,
or if the expert witness's duties as the party's employee regularly
involves giving expert testimony. The report shall include all of the
following:
(1) A complete statement of all opinions the witness will express
and the basis and reasons for those opinions.
(2) The facts or data considered by the witness in forming his or
her opinions.
(3) Any exhibits the witness will use to summarize or support his
or her opinions.
(4) The witness's qualifications, including a list of all
publications authored by the witness in the previous 10 years.
(5) A list of all other cases in which the witness testified as an
expert at trial or by deposition in the last five years.
(6) A statement of the compensation to be paid for the witness's
work and testimony in the adjudication action.
comprehensive adjudication.
(c) If subdivision (b) does not apply to an expert witness because
of a stipulation by the parties or an order of the court, the
witness's disclosure shall include both of the following:
(1) The subject matter on which the witness is expected to present
evidence.
(2) A summary of the witness's opinions, and the facts or data
considered by the witness in forming his or her opinions.
(d) Unless otherwise stipulated by the parties, a party shall make
the disclosures of any expert witness it intends to present at
trial, except for an expert witness presented solely for purposes of
impeachment or rebuttal, at the times and in the sequence ordered by
the court. If there is no stipulation or court order, the disclosures
of an expert witness shall be made as follows:
(1) At least 30 days after the court's entry of an order
establishing the scope of the relevant phase of the
adjudication action. comprehensive adjudication.
(2) Except for a supplemental expert witness described in
paragraph (3), at least 60 days before the date set for trial of the
relevant phase of the adjudication action.
comprehensive adjudication.
(3) For a supplemental expert witness who will express an opinion
on a subject to be covered by another expert witness designated by an
adverse party that was not among the subjects covered by an expert
witness initially disclosed by the party offering the supplemental
expert witness, no more than 20 days after the initial expert witness
disclosure date.
(e) The court may modify the disclosure requirements of
subdivisions (b) to (d), inclusive, for expert witnesses presented
solely for purposes of impeachment or rebuttal. In modifying the
disclosure requirements, the court shall adopt disclosure
requirements that expedite the court's consideration of the issues
presented and shall ensure that expert testimony presented solely for
purposes of impeachment or rebuttal is strictly limited to the scope
of the testimony that it intends to impeach or rebut.
(f) (1) A party whose expert witness has made a disclosure
pursuant to this section shall promptly supplement or correct the
expert witness's disclosure in either of the following instances:
(A) In a timely manner if the party learns that in some material
respect the disclosure is incomplete or incorrect, if the additional
or corrective information has not otherwise been made known to the
other parties during the disclosure or discovery process.
(B) As ordered by the court.
(2) A party's duty to supplement or correct its expert witness's
disclosure includes the information included in the report and the
information given during the expert witness's deposition. Unless
otherwise stipulated by the parties or ordered by the court, any
supplementation or correction shall occur at least 14 days before
trial of the applicable phase of the adjudication action.
comprehensive adjudication.
(3) The court may authorize a supplemental deposition of an expert
witness based on a supplemental disclosure made pursuant to this
subdivision. The court shall appropriately condition the
authorization of a supplemental deposition of an expert witness to
ensure the expeditious completion of the applicable phase of the
adjudication action. comprehensive
adjudication. The court may require the party whose expert
makes the supplemental disclosure to pay some or all of the costs
associated with the supplemental deposition.
(g) To the greatest extent possible, the parties shall serve
expert witness disclosures electronically through a
court-provided an electronic service system,
an electronic document repository, email, or another
method of electronic transmission. If it is not possible for the
party to serve his or her expert witness disclosures electronically,
he or she shall serve the expert witness disclosures in an electronic
format saved on a portable storage media device such as a compact
disc or flash drive.
(h) If a party or its expert witness fails to comply with this
section, the court may exclude the expert witness's testimony from
trial, authorize additional depositions of the expert witness at the
party's expense, or take other appropriate action upon the noticed
motion, or ex parte application, of a party.
842. (a) A court in an adjudication action
comprehensive adjudication may require the parties to
submit written testimony of relevant witnesses in the forms of
affidavits or declarations under penalty or
of perjury in lieu of presenting live testimony. The required
written testimony may include, but is not limited to, expert witness
opinions and testimony that authenticates documentary evidence. The
court may order that the written testimony constitutes the entirety
of the witness's direct testimony, require the written testimony to
include any exhibits offered in support of the written testimony,
and, in the case of written testimony of an expert witness, require a
statement of the witness's qualifications.
(b) If the court requires the submission of written testimony
pursuant to subdivision (a), a complete copy of the direct testimony
shall be served at least 21 days before trial of the applicable phase
of the adjudication action. comprehensive
adjudication. A complete copy of any rebuttal testimony shall
be served no later than the first day of trial of the applicable
phase of the adjudication action.
comprehensive adjudication. The court shall ensure the rebuttal
testimony is strictly limited to the scope of the direct testimony
to which it responds.
(c) If the contents of the written testimony would have been
admissible if the witness testified orally, the written testimony
shall be received by the court as a documentary exhibit if, at the
trial of the applicable phase of the adjudication action,
comprehensive adjudication, the witness whose
written testimony is being offered is made available for
cross-examination by all parties.
843. (a) In an adjudication action,
comprehensive adjudication, the court may appoint a special
master whose to report on legal and factual
issues designated under a specific order of reference. A special
master's duties may include the following:
(1) Initiating a technical committee consisting of the parties,
the parties' designated representatives, or both, to conduct joint
factfinding as to the basin's safe yield of groundwater, water
demand, and any other technical issues, as directed by the court. The
special master shall compile a technical report of the findings in
accordance with Section 844.
(2) Conducting or facilitating mediation or
Overseeing settlement discussions.
(3) Performing other tasks the court may deem appropriate.
(b) The special master may be one or more individuals
employed by the court as a full-time or part-time
employee, employees, or retained as
an independent contractor.
contractors. A special master's compensation and other
expenses related to the conduct of an adjudication action
a comprehensive adjudication shall be fixed by
the court, apportioned pro rata to the extent reasonably feasible to
do so, and paid by all parties unless the parties agree to another
allocation or the court determines that, in the interests of justice,
another allocation is necessary. The court may provide for the
collection and disbursement of special master fees as it deems
appropriate.
(c) (1) To assist trial courts in selecting special masters the
department shall, on or before January 1, 2017, establish and
maintain a list of individuals who may serve as special masters in
adjudication actions. comprehensive
adjudications. To be placed on the list , an
individual shall have at least 10 years experience as either of the
following:
(A) A licensed professional engineer, professional hydrologist, or
professional geologist.
(B) An attorney licensed to practice law in the state.
(2) The department shall establish any other qualifications that
may be appropriate to ensure that individuals placed on the list are
qualified to assist a court in an adjudication action.
a comprehensive adjudication.
844. (a) If a technical committee is established pursuant to
Section 843, the special master shall provide all parties with a copy
of a draft technical report he or she prepares and a notice setting
a day at least 60 days after the draft technical report has been
provided to all parties before which the parties may submit to the
special master written objections to the draft technical report.
(b) An objection to the draft technical report shall identify the
specific grounds and evidence on which the objection is based. Within
10 days after the close of the period for filing objections, the
special master shall provide copies of the objections to all parties.
(c) 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 technical report.
(d) The special master shall consider the objections to the draft
technical report and develop a final certified copy of the technical
report that shall be filed with the court, together with a certified
copy of all evidence considered by the special master in preparing
the draft technical report, all evidence identified in the objections
to the draft technical report, and all evidence considered by the
special master in preparing the final technical report.
845. Chapter 2 (commencing with Section 1115) of Division 9 of
the Evidence Code shall apply to all mediations, settlement
conferences, and other similar out-of-court negotiations in
adjudications actions comprehensive adjudications
subject to this chapter.
846. (a) It is the policy of the state to encourage the
compromise and settlement of adjudication actions.
comprehensive adjudications.
(b) Upon the motion of any party to an adjudication
action, a comprehensive adjudication, a court
may do any of the following:
(1) Stay an adjudication action a
comprehensive adjudication for a period of up to one year,
subject to renewal in the court's discretion upon a showing of good
cause, in order to facilitate any of the following:
(A) (i) Timely development of a groundwater sustainability plan
under the Sustainable Groundwater Management Act that may serve as
the basis of a stipulated judgment setting forth a physical solution
for management of the basin.
(ii) If the court stays an adjudication action
a comprehensive adjudication for purposes of facilitating
timely progress on a groundwater sustainability plan, the court may
direct the parties to provide the court with regular updates on the
progress in developing the groundwater sustainability plan.
(B) Technical studies that may be useful to the parties in
developing a stipulated judgment or physical solution.
(C) Voluntary mediation on all, or a portion of, the subject
matters or legal questions identified in the adjudication
action comprehensive adjudication or any phase
of the adjudication action. comprehensive
adjudication.
(D) Compromise and settlement of the adjudication action,
comprehensive adjudication, a phase of the
adjudication action, comprehensive
adjudication, or any subject matter of the
adjudication action comprehensive adjudication
or a phase of the adjudication action.
comprehensive adjudication.
(2) Schedule mandatory mediation and appointment of a neutral
mediator concerning the adjudication action,
comprehensive adjudication, a phase of the
adjudication action, comprehensive adjudication,
or any subject matter of the adjudication action
comprehensive adjudication or a phase of the
adjudication action. comprehensive adjudication.
(3) Schedule phases of trial in combination with mandatory
mediation for purposes of fostering compromise concerning the
adjudication action, comprehensive
adjudication, a phase of the adjudication action,
comprehensive adjudication, or any subject
matter of the adjudication action
comprehensive adjudication or a phase of the
adjudication action. comprehensive adjudication.
(c) A stay may be extended for up to one year at a time. If a
party opposes an extension of a stay, a stay may only be granted
after a showing that there is good progress being made on the issues
that were identified as the reasons for the stay.
stay and that no rights or interest would be impaired by the
stay. The total time period an adjudication action
a comprehensive adjudication may be stayed shall
not exceed 3 5 years.
(d) A stay pursuant to this section shall not stay, or otherwise
delay, the parties' obligations to provide initial disclosures
pursuant to Section 840 unless the court determines the initial
disclosures will not benefit resolution of the adjudication
action. comprehensive adjudication.
847. (a) If a party, or a group of parties, submits a
proposed stipulated judgment that is supported by (1) more than 50
percent of all named parties in the adjudication action
and (2) groundwater rights
holders holding title to at least 75 percent of the groundwater
production during the past 10 years in the basin, the court shall
A party or parties may submit a proposed stipulated
judgment to the court. The court may impose any physical
solution that is part of the stipulated judgment as a component of
the final judgment in the adjudication action
comprehensive adjudication if the physical solution satisfies
all of the following criteria:
(1) It furthers the interests of the state in ensuring that the
water resources of the state are put to beneficial use to the fullest
extent that they are capable, as required by Section 2 of Article X
of the California Constitution.
(2) It is consistent with all water right priorities in the basin.
(3) It treats all objecting parties equitably as compared to the
stipulating parties.
(b) A party objecting to a proposed stipulated judgment shall
demonstrate, by a preponderance of the evidence, that the proposed
stipulated judgment does not satisfy the criteria described in
paragraphs (1) to (3), inclusive, of subdivision (a). If the
objecting party is unable to make this showing, the court may impose
the proposed stipulated judgment on all parties.
(b) A party may object to a stipulated judgment proposed pursuant
to this section on the basis that it does not satisfy the criteria
described in subdivision (a). The stipulated judgment may be in
effect while any objections are being resolved.
848. (a) Before the court issues a final judgment in the
comprehensive adjudication, a party may file a motion for an order
determining that the judgment is consistent with the sustainability
goal of the Sustainable Groundwater Management Act.
(b) The department may provide a report to the court evaluating if
the judgment is consistent with the sustainability goal of the
Sustainable Groundwater Management Act.
(c) If the court determines that the judgment will achieve the
sustainability goal for the basin established by the Sustainable
Groundwater Management Act, the judgment shall be considered an
alternative to a groundwater sustainability plan and shall be deemed
to satisfy the objectives of the Sustainable Groundwater Management
Act.
(d) The court shall have sole jurisdiction to determine if the
judgment complies with the Sustainable Groundwater Management Act.
(e) The court may consider a motion made pursuant to subdivision
(a) for a proposed judgment before the court enters the judgment.
(f) For purposes of this section, "judgment" means a judgment,
settlement, or other final order concluding proceedings in the
comprehensive adjudication in the superior court.
849. The court may appoint a groundwater sustainability agency
may be appointed by the court to serve as the watermaster in any
judgment entered in a comprehensive adjudication.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.