BILL NUMBER: AB 1390 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 18, 2015
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 a comprehensive
adjudication, which is defined as an action filed in superior court
to comprehensively determine the rights to extract groundwater 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 comprehensive adjudications except in cases
not involving a comprehensive allocation of a basin's groundwater
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 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 rights to extract groundwater
within the basin in accordance with the special procedures for
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 a comprehensive adjudication and ,
authorizing the service of the landowners of the basin ,
and requiring the assessor or assessors of the county or counties in
which the basin to be adjudicated lies to provide the plaintiff
access to certain records . After the court order
authorizing service of the landowners of the basin, is
issued, 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
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 identified by the plaintiff, as specified.
identify the assessor parcel numbers and physical addresses of all
real property within the basin and the names and addresses of all
holders of fee title to real property within the basin, as specified;
mail the notice, complaint, and form answer to all holders of fee
title to real p roperty in the basin, as specified; and
publish the notice in one or more newspapers of general circulation,
as specified. The bill would require the plaintiff,
and other parties as may be ordered by the court, to reimburse the
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 with the court a
notice of the completion of the mailing , and within
60 days after service is authorized, to prepare and file a notice of
the comprehensive adjudication in the office of the county recorder
of each county overlying the basin in whole or in part . 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 comprehensive
adjudication for purposes of establishing in rem jurisdiction and the
comprehensive effect of the comprehensive adjudication.
This bill would authorize the court to convene a case management
conference at such time the court deems appropriate, after which the
court could divide the 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 comprehensive adjudication by written
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 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 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 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 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 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 in a basin.
(b) It is the intent of the Legislature to do all of the
following:
(1) Develop procedures to provide a more 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 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) "Basin" means a groundwater basin or subbasin identified
pursuant to Section 839.
(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.
(c) "Complaint" means a complaint filed in superior court to
determine rights to extract groundwater and includes any
cross-complaint that initiates 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 a
comprehensive adjudication and includes a cross-complainant who
initiates 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) Except as provided in subdivision (e), this chapter
establishes special procedures for an 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 a
comprehensive adjudication to the extent they do not conflict with
the provisions of this chapter.
(b) The court's final judgment in 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
comprehensive adjudication.
(c) The procedures of this chapter shall govern all 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 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 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.
(d) In implementing this chapter and applying the other provisions
of this code in a comprehensive adjudication, the court should
expedite resolution of the 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 a comprehensive adjudication shall name all of the
following persons as defendants:
(1) All general or special districts managing or replenishing
groundwater resources in the basin in whole or in part.
(2) The operator of a public water system that uses groundwater
from the basin to supply water service.
(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.
(c) Within 30 days of the filing of the complaint, 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.
(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 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
comprehensive adjudication unless the comprehensive adjudication is
completed.
(3) Pursuant to Section 847, the parties have agreed to a proposed
judgment in the 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
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 a comprehensive adjudication subject to
this chapter and authorizing service of landowners in accordance with
Section 833. that does all of the following:
(1) Declares that the case is a comprehensive adjudication subject
to this chapter.
(2) Authorizes service of landowners in accordance with Section
833.
(3) Requires the assessor or assessors of the county or counties
in which the basin to be adjudicated lies to provide the plaintiff
with access to any records necessary to obtain the information
required under Section 833.
(c) If, after the preliminary hearing, the court finds that no
condition described in paragraphs (1) to (4), inclusive, of
subdivision (a) is met, the court shall either dismiss the 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 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. to the extent possible.
833. (a) At the same time as filing the complaint, the plaintiff
shall lodge all of the 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. You may file an answer by completing the
attached form answer, filing it with the court indicated in this
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 90 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 a comprehensive adjudication is
sufficient to put at issue all material allegations and applicable
affirmative defenses to the complaint in the 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).
(3) The initial disclosures required to be lodged by the plaintiff
pursuant to Section 840.
(b) Within 15 days of a court order authorizing service of
landowners pursuant to 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 provide notice of
the ex parte application to all parties 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).
(c) Once the court approves 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.
(d) (1) Following a court order
approving the notice and form answer and authorizing
service of landowners pursuant to this section, the plaintiff
shall identify, as expeditiously as possible and using the
records of the 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 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 identified by the plaintiff in accordance with this
subdivision. The plaintiff, and other parties as may be ordered by
the court, shall reimburse the tax collector or tax collectors for
the costs of including the court-approved notice and form answer. The
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. shall do all of
the following:
(A) Identify the assessor parcel numbers and physical addresses of
all real property within the basin and the names and addresses of
all holders of fee title to real property within the basin using the
records of the assessor or assessors of the county or counties in
which the basin to be adjudicated lies. The plaintiff shall provide
the court and all parties with notice of its acquisition of, or
sufficient access to, this information.
(B) Mail, by registered mail or certified mail, return receipt
requested, the notice, complaint, and form answer to all holders of
fee title to real property in the basin. If the physical address of
the real property differs from the address of the holder of fee
title, the notice, complaint, and form answer shall be mailed by
registered or certified mail, return receipt requested, to the
physical address of the real property and the address of the holder
of fee title.
(C) If return receipt is not received for a parcel of real
property, the plaintiff shall post a copy of the notice, complaint,
and form answer in a conspicuous place on the real property.
(D) Within 20 days of the court order, publish the notice at least
once per week for four consecutive weeks in one or more newspapers
of general circulation in each county overlying the basin in whole or
in part.
(2) Service pursuant to this subdivision is not required if the
real property is part of a class of water users that are otherwise
noticed in accordance with this chapter.
(e) After the tax collector or tax collectors include the
court-approved notice and form answer with the property tax bills
Upon completion of the mailing
pursuant to subdivision (d), the plaintiff shall file with the court
a notice of the completion of the mailing.
(f) Within 60 days after service is authorized, the plaintiff
shall prepare and file a notice of the comprehensive adjudication in
the office of the county recorder of each county overlying the basin
in whole or in part. The notice shall be recorded in a manner so as
to ensure that a person researching the title of a parcel will find
the notice.
(f)
(g) 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)
(h) Service on the United States shall be made in
accordance with Section 666 of Title 43 of the United States Code.
(h)
(i) 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.
(i)
(j) 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 (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 comprehensive adjudication
for purposes of establishing in rem jurisdiction and the
comprehensive effect of the 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 , complaint, and draft form
answer to the department. The department shall post the
draft notice , complaint, and
draft form 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 a comprehensive adjudication, the court may, and
upon the motion of any party the court shall, request the chairperson
of the Judicial Council to assign a judge from a neutral county to
hear the 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 a comprehensive adjudication there may only be two
disqualifications of judges pursuant to Section 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 after service is completed pursuant to Section 833
and within 30 days of a judge being assigned.
836. (a) An A 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 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 a comprehensive
adjudication, other than the complaint initiating a comprehensive
adjudication, shall occur electronically to the greatest extent
possible. 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
and papers, the attorneys of record or parties representing
themselves shall include an email address for service in the captions
of all pleadings they file in the comprehensive adjudication.
Article 3. Conduct of Action
838. (a) In managing a comprehensive adjudication the court may,
notwithstanding any other law, convene a case management conference
at such time the court deems appropriate.
(b) After 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 comprehensive
adjudication into phases. This section 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 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 comprehensive adjudication.
(c) In a phase of 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 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
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 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 a comprehensive adjudication shall be the basin boundaries
identified in Bulletin 118 as of the date the complaint initiating
the comprehensive adjudication is filed. The plaintiff shall use
these boundaries in initiating the procedures to serve the complaint
on landowners in a comprehensive adjudication in accordance with
Section 833.
(b) The court may consider adjusting a basin's boundaries at the
initial phase of 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 comprehensive adjudication pending the department's
resolution of any boundary adjustments. During the stay, the court
may require the parties to make initial disclosures pursuant to
Section 840.
(c) If a court, following receipt of the department's
recommendations, determines the basin's boundaries separately and
before the trial of other issues in the comprehensive adjudication,
the basin's boundaries as determined by the court shall be the basin'
s boundaries for all purposes in all subsequent phases of the
comprehensive adjudication. Appellate review of a court's
determination of the basin's boundaries 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 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 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.
(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.
(5) The location of any extraction of groundwater from the basin
by the party, or the party's representative or agent.
(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.
(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.
(8) Identification of all surface water rights and contracts that
the party claims provides the basis for its water right claims in the
comprehensive adjudication.
(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.
(10) The names, addresses, telephone numbers, and email addresses
of all persons possessing information that supports the party's
disclosures.
(11) Any other information deemed appropriate by the court for
initial disclosure in a comprehensive adjudication.
(b) The Judicial Council may develop a form for initial
disclosures made pursuant to subdivision (a) to facilitate the
consistent, independent, impartial, and accessible administration of
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
comprehensive adjudication, a party shall make the initial
disclosures described in subdivision (a) within 60 days after
appearing in the comprehensive adjudication.
(2) A plaintiff that initiates 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 comprehensive
adjudication.
(d) Unless otherwise ordered by the court, a party that is first
served, or otherwise joined to the 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 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 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 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 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 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
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 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 comprehensive adjudication
may require the parties in a comprehensive adjudication
to submit written testimony of relevant witnesses in the forms of
affidavits or declarations under penalty 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 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 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 comprehensive adjudication, the
witness whose written testimony is being offered is made available
for cross-examination by all parties.
843. (a) In a comprehensive adjudication, the court
may appoint a special master 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) 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 full-time or part-time employees, or retained as
independent contractors. A special master's compensation and other
expenses related to the conduct of 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
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 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
comprehensive adjudications subject to this chapter.
846. (a) It is the policy of the state to encourage the
compromise and settlement of comprehensive adjudications.
(b) Upon the motion of any party to a comprehensive adjudication,
a court may do any of the following:
(1) Stay 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 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 comprehensive
adjudication or any phase of the comprehensive adjudication.
(D) Compromise and settlement of the comprehensive adjudication, a
phase of the comprehensive adjudication, or any subject matter of
the comprehensive adjudication or a phase of the comprehensive
adjudication.
(2) Schedule mandatory mediation and appointment of a neutral
mediator concerning the comprehensive adjudication, a phase of the
comprehensive adjudication, or any subject matter of the
comprehensive adjudication or a phase of the comprehensive
adjudication.
(3) Schedule phases of trial in combination with mandatory
mediation for purposes of fostering compromise concerning the
comprehensive adjudication, a phase of the comprehensive
adjudication, or any subject matter of the comprehensive adjudication
or a phase of the 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 and that no rights
or interest would be impaired by the stay. The total time period a
comprehensive adjudication may be stayed shall not exceed 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 comprehensive
adjudication.
847. (a) 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 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 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 For any basin required to develop
a groundwater sustainability plan under the Sustainable Groundwater
Management Act, the department may
shall 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.
(g) Nothing in this section is intended to undermine the goals and
outcomes of the Sustainable Groundwater Management Act to the extent
water rights, as determined by the court, are not impaired.
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.