Filed 10/31/13 Water Replenishment Dist. So. Cal. v. City of Downey CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


WATER REPLENISHMENT DISTRICT                                         B243047
OF SOUTHERN CALIFORNIA,
                                                                     (Los Angeles County
         Plaintiff and Appellant,                                    Super. Ct. No. VC060546)

         v.

CITY OF DOWNEY,

         Defendant and Respondent.




         APPEAL from an order of the Superior Court of Los Angeles County. Raul A.
Sahagun, Judge. Reversed with directions.
         Alston & Bird, Edward J. Casey, Neal P. Maguire and Lee J. Rosenberg for
Plaintiff and Appellant.
         Aleshire & Wynder, Patricia J. Quilizapa and Brandon Dominic Ward for
Defendant and Respondent.


                                                    ___________
       A trial court in a related action made an interim order that the provisions of
article XIII D of the California Constitution invalidated a replenishment assessment
(assessment) imposed on the City of Downey by the Water Replenishment District of
Southern California (District), and thus the City of Downey was “entitled to mandamus
relief commanding the [District] to vacate the [assessment] imposed by [the District] over
the past four years.” (City of Cerritos et al. v. Water Replenishment District of Southern
California (Super. Ct. L.A. County, No. BS128136) (Proposition 218 Lawsuit).)
Proposition 218, known as the Right to Vote on Taxes Act, was approved by the
California voters at the November 5, 1996 General Election, amending the Constitution
by adding article XIII D. (See Ballot Pamph., Gen. Elec. (Nov. 5, 1996) text of Prop.
218, p. 108 et seq.) Subsequent to the interim order in the Proposition 218 Lawsuit, the
City of Downey stopped paying the assessment but continued to produce groundwater.
This interim order is not before us for review in this appeal.
       We are asked in this appeal to determine whether the trial court erred in denying
the District’s application for a preliminary injunction to enjoin the City of Downey from
producing groundwater unless it pays the delinquent assessment. The District urges that
pursuant to Water Code section 60339 the City of Downey should be so enjoined because
the “pay first, litigate later” doctrine enshrined in section 32 of article XIII of the
California Constitution requires the City of Downey to pay the assessment until it
receives a final judgment on the Proposition 218 Lawsuit.1 We agree and conclude that
the trial court erred in denying the District’s application for a preliminary injunction
because section 60339 authorizes the trial court to grant an injunction against an operator
of a water-producing facility from producing groundwater if it is delinquent in the
payment of an assessment, and under the doctrine of “pay first, litigate later,” the City of
Downey must pay the assessment until there is a final judgment in its Proposition 218
Lawsuit. We reverse the order of the trial court denying the District’s application for a
preliminary injunction and direct the court to enjoin the City of Downey from producing


       1   Undesignated statutory references are to the Water Code.

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groundwater during the pendency of the Proposition 218 Lawsuit unless it pays the
delinquent assessment.
                                     BACKGROUND
       The background to this matter is set forth in detail in Water Replenishment District
of Southern California v. City of Cerritos (Oct. 30, 2013, B242080) ___Cal.App.4th ___
[pp. 3–12]. All references in the background to “the City” are to the City of Cerritos.
                                       DISCUSSION
The trial court erred in denying the District’s application for a preliminary
injunction
       A. Section 60339 authorizes the trial court to grant an injunction against a
producer from producing groundwater if it is delinquent in the payment of an
assessment
       The District urges that pursuant to section 60339, the City of Downey should be
enjoined during the trial court proceedings from pumping groundwater unless it pays the
delinquent assessment. We agree because, as we explained in Water Replenishment
District of Southern California v. City of Cerritos (Oct. 30, 2013, B242080)
___Cal.App.4th ___ [pp. 13–16], section 60339 authorizes the trial court to grant an
injunction against a producer from producing groundwater if it is delinquent in the
payment of an assessment.
       B. Under the doctrine of “pay first, litigate later,” the City of Downey must pay
the assessment or cease producing groundwater until there is a final judgment in the
Proposition 218 Lawsuit
       The District contends that the “pay first, litigate later” doctrine enshrined in
section 32 of article XIII of the California Constitution requires the City of Downey to
pay the assessment until the City of Downey receives a final judgment in the Proposition
218 Lawsuit. We agree as we explained in Water Replenishment District of Southern
California v. City of Cerritos (Oct. 30, 2013, B242080) ___Cal.App.4th ___ [pp. 16–23].
As noted in that opinion, Judge Chalfant’s April 2011 Order that Proposition 218 applies
to the assessment is not before us in this appeal.

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                                      DISPOSITION
       The order denying the Water Replenishment District of Southern California’s
application for a preliminary injunction is reversed with directions to the trial court to
issue an order enjoining the City of Downey from producing groundwater during the
pendency of the Proposition 218 Lawsuit (City of Cerritos et al. v. Water Replenishment
District of Southern California (Super. Ct. L.A. County, No. BS128136)) unless it pays
the assessment. The City of Downey is not required to pay accrued interest on any
delinquent assessment. The Water Replenishment District of Southern California is
entitled to costs on appeal.
       NOT TO BE PUBLISHED.


                                                  MALLANO, P. J.
We concur:


       CHANEY, J.


       JOHNSON, J.




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