FILED

02/09/18
04:59 PM

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

Application of California-American Water Application 12-04-019

Company (U210W) for Approval of the (Filed April 23, 2012)
Monterey Peninsula Water Supply Project and
Authorization to Recover All Present and
Future Costs in Rates.

CALIFORNIA-AMERICAN WATER COMPANY’S

REPLY IN SUPPORT OF REQUEST FOR OFFICIAL NOTICE

Sarah E. Leeper
Cathy A. Hongola-Baptista
California American Water
555 Montgomery Street, Suite 816
San Francisco, CA 94111
For: California-American Water Company
sarah.leeper@amwater.com
cathy.hongola-baptista@amwater.com
(415) 863-2960

February 9, 2018

i
 BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA

Application of California-American Water Application 12-04-019

Company (U210W) for Approval of the (Filed April 23, 2012)
Monterey Peninsula Water Supply Project and
Authorization to Recover All Present and
Future Costs in Rates.

CALIFORNIA-AMERICAN WATER COMPANY’S

REPLY IN SUPPORT OF REQUEST FOR OFFICIAL NOTICE

Pursuant to Rule 11.1(f) of the California Public Utilities Commission’s Rules of Practice

and Procedure and the authorization granted on February 1, 2018 by the EmailingRuling:A.
12-

04-0-19GrantingCaliforniaAmericanWaterCompany’srequesttoreplyinsupportofits

January9, 2018requestforofficialnotice, California-American Water Company (“California

American Water”) submits this reply in support of its Request for Official Notice filed January 9,

2018 (“Request”).

I. INTRODUCTION
The Commission should reject the arguments submitted in response to California
American Water’s Request because the Commission may properly take official notice of the

January 2, 2018 correspondence from City of Salinas Mayor Joe Gunter (“Mayor’s Letter”). The

Mayor’s Letter, written by Mayor Gunter on behalf of the City of Salinas, gives notice to the

Monterey Peninsula Regional Water Authority (“MPRWA”), and others, that the City of Salinas

will not support diversion of additional water to the Pure Water Monterey project beyond the

3,500 feet already committed because any additional water is needed to address saltwater

intrusion issues. Providing this notice to MPRWA of the City of Salinas’s position is an official

act of the City of Salinas, so it is the proper subject of official notice. The attempts by four

public entities, all of which support expansion of the Pure Water Monterey Project, to exclude

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from the record the City of Salinas’ concerns and opposition to expansion lacks merit and should

be rejected.

II. RESPONDING PARTIES’ ARGUMENTS LACK MERIT BECAUSE THE

MAYOR’S LETTER IS THE PROPER SUBJECT OF OFFICIAL NOTICE
Marina Coast Water District (“MCWD”), Monterey Peninsula Water Management

District (“MPWMD”), City of Marina (“Marina”) and Monterey Regional Water Pollution

Control Agency (“MRWPCA”) all argue that the Mayor’s Letter is not an official act of a City,

but they cite no authorities supportintg their position. MPWMD argues judicial notice is

improper because nothing “indicate[s] this letter has been authorized by his City Council nor has
any agenda or adopted minutes of the City Council been provided to document this as ‘an official

act of a city.’” MRWPCA makes a nearly identical argument, but both MRWPCA and

MPWMD fail to cite any authority or logical basis making city council approval a prerequisite to

taking judicial notice pursuant to Section 452(c).

Marina argues that courts “routinely declined to provide judicial notice under Section

452(c) for exactly these kinds of letters or declarations from agencies or individuals employed by

such agencies,” but failed to cite a single authority supporting its position. What Marina and

MRWPCA do cite is EmpireFire& MarineInsur.Co.v.Bell(1997) 55 Cal.App.4th 1410, but

that case does not support their position. At issue in EmpireFirewas whether the Court of

Appeals would take judicial notice of a declaration of a county official, which was submitted for

the first time directly to the Court of Appeals. Unsurprisingly, the Court of Appeals declined to

find that a declaration executed for the purpose of establishing an ultimate fact during litigation

was an official city act. Childsv.California(1983) 144 Cal.App.3d 155 is similar. In Childs,

the Court of Appeals affirmed the trial court’s decision to refuse to take judicial notice at the

pleading stage of a declaration executed by a representative of the State Board of Control

describing “the general mailing practice of a government agency.” EmpireFireand Childsboth

involve government representatives submitting a factual declaration for purposes of proving a

fact in issue during litigation.

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 The Mayor’s Letter has no similarity to the execution of a declaration to establish a fact

during litigation. The Mayor’s Letter is authored by a non-party to this proceeding, not to

establish a fact in this proceeding, but to give notice to MPRWA, as well as MRWPCA and

MPWMD, regarding the position of the City of Salinas on the feasibility of a Pure Water

Monterey expansion.1 The Mayor’s letter more closely resembles a city attorney issuing an

opinion – which no one disputes is the proper subject of judicial notice –on a policy or legal

issue that needs clarification.

Marina, MCWD and MRWPCA also argue the Mayor’s Letter is inadmissible hearsay,
but California American Water is not seeking official notice of the truth of the matters in the

Mayor’s Letter. The fact the Mayor’s Letter was sent and the fact that the statements in the

Mayor’s Letter were made are demonstrably relevant to the feasibility of expansion of Pure

Water Monterey. And, in that context, they do not constitute hearsay, so the Commission should

reject Marina, MCWD, and MRWPCA’s argument.

Marina further argues that California American Water failed to meet its burden “to

supply the Commission with sufficient, reliable and trustworthy sources of information to justify

official notice.” In support of this argument, Marina cites Peoplev.Moore(1997) 59

Cal.App.4th 168 and Peoplev.Maxwell(1978) 78 Cal.App3d 124. Neither of these decisions

supports Marina’s argument. In Maxwell, the prosecution sought judicial notice of a transcript

from an earlier criminal proceeding, but the transcript was never provided to the court. In

Moore, the Court of Appeals questioned the decision to take judicial notice of prior criminal

judgments without receiving copies of the judgments themselves, but the Court of Appeal found

the request for judicial notice was proper on other grounds and affirmed the judgment. Here,

1 MRWPCA argues that if the City of Salinas wanted its opinion included in the record of the
proceeding, it should have “taken appropriate steps to participate in hearings” and “been subject
to cross-examination.” This is a meritless argument. First, the Mayor’s Letter was issued after
the close of hearings, so the letter itself could not have been made part of the record during
hearing. Second, there is no indication that the City of Salinas was aware prior to the hearings
that the Commission had asked the parties to determine whether expanded GWR was feasible.
Notably, there is also no indication from MRWPCA’s testimony or briefing that MRWPCA
made inquiries with the City of Salinas to see if Salinas believed GWR expansion was feasible.

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 California American Water met its burden by supplying the Commission with the Mayor’s

Letter. Marina provides nothing challenging the authenticity of that Letter. The Commission,

therefore, should disregard Marina’s argument.

Moreover, like the court in Peoplev.Moore, there are additional grounds upon which the

Court could consider taking official notice of the Mayor’s Letter. For example, the Mayor’s

Letter was included in the Monterey Peninsula Regional Water Authority Agenda Report for

January 11, 2018.2 A court may take judicial notice of agency agendas and materials.3 Thus,

there is no question that adequate grounds exist and were shown for the Commission to take
judicial notice of the fact the Mayor’s Letter was sent and of its contents.

III. CONCLUSION
Based on the foregoing, California American Water respectfully requests the

Commission take official notice of the Mayor’s Letter.

Dated: February 9, 2018

By: /s/CathyHongola-Baptista
Cathy Hongola-Baptista, Attorney
California-American Water Company
555 Montgomery Street, Suite 816
San Francisco, CA 94111
For: California-American Water Company

2
http://isearchmonterey.org/cache/2/yg0jmmbqltpdu0f1vjbvplio/40330001232018024546216.PD
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3 SeePagev.Mi raCostaCmty.Coll.Dist. (2009) 180 Cal. App. 4th 471, 501 (trial court
properly took judicial notice of agenda and meeting minutes); TrancasProp.OwnersAssn.v.
CityofMalibu(2006) 138 Cal. App. 4th 172, 178 n.3 (judicial notice of city council agenda);
Chaffeev.SanFranciscoLibraryComm'n(2004) 115 Cal. App. 4th 461, 464 n.3 (judicial notice
of meeting minutes); CaliforniaAssn.ofRetailTobacconistsv.StateofCalifornia(2003) 109
Cal.App.4th 792, 828 (judicial notice of agenda items and meeting minutes).

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