Filed 8/26/13 AG Land Trust v. Marina Coast Water Dist. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


AG LAND TRUST,                                                       H038550
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. M105019)

         v.

MARINA COAST WATER DISTRICT,

         Defendant and Appellant.



                                              I. INTRODUCTION
         This CEQA1 action arises from the approval of the Regional Desalination Project
by appellant Marina Coast Water District (Marina Coast). The Regional Desalination
Project was to be owned and operated by Marina Coast, the Monterey County Water
Resources Agency (Water Resources Agency), and the California American Water
Company (Cal-Am), a corporation regulated by the California Public Utilities
Commission (PUC). Cal-Am‟s participation was to include the construction of a
distribution system to deliver the desalinated water to customers on the Monterey
Peninsula.



         1
        California Environmental Quality Act, Public Resources Code section 21000
et seq. All further statutory references are to the Public Resources Code unless otherwise
indicated.
       Respondent Ag Land Trust, a nonprofit group interested in preserving Monterey
County farmland, challenged Marina Coast‟s approval of the Regional Desalination
Project by filing a petition for a writ of mandate in the superior court. In support of its
petition, Ag Land Trust argued that Marina Coast, not the PUC, should be the lead
agency for CEQA purposes and that the environmental impact report (EIR) prepared by
the PUC was inadequate. After a court trial, the trial court granted the first amended
petition for writ of mandate, entered judgment in Ag Land Trust‟s favor, and issued a
peremptory writ of mandate directing Marina Coast to set aside its approval of the
Regional Desalination Project.
       While Marina Coast‟s appeal from the judgment was pending, the PUC issued a
decision finding that Cal-Am had withdrawn its support for the Regional Desalination
Project and stating that the project “has no reasonable prospect of achieving its goals.”
(Application of California-American Water Company (2012) Cal. P.U.C. Dec. No. 12-07-
008 [2012 Cal.PUC LEXIS 300], p. *28 (Decision No. 12-17-008).) We took judicial
notice of the PUC‟s decision (Evid. Code, §§ 459, 452, subd. (c)) and requested
supplemental briefing from the parties on the issue of whether the decision had rendered
the appeal moot. For the reasons stated below, we determine that the appeal is moot and
the appropriate disposition under the circumstances of this case is to reverse the judgment
with directions to the trial court to dismiss the petition for a writ of mandate as moot.
(See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134 (Paul); Coalition for a
Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 944-945
(Coalition for a Sustainable Future).)
                II. FACTUAL AND PROCEDURAL BACKGROUND
       A. The Regional Desalination Project
       Appellant Marina Coast is a public utility that provides water service to the City of
Marina and its vicinity as well as the former Ford Ord. Cal-Am is a corporation that
provides water service to parts of the Monterey Peninsula adjacent to Marina Coast‟s

                                              2
service area. As a privately-owned public utility, Cal-Am is regulated by the PUC.
Within Monterey County, the Water Resources Agency is responsible for increasing the
water supply and preventing its waste and diminution.2 As this court has previously
noted, “[i]t is well documented that water availability is a critical problem throughout
Monterey County.” (Save Our Peninsula Committee v. Monterey County Bd. of
Supervisors (2001) 87 Cal.App.4th 99, 108 (Save Our Peninsula).)
       The history of the Regional Desalination Project begins in 1995, when “the State
Water Resources Control Board issued Order No. 95-10 and related Decision No. 1632.
Order No. 95-10 found that [Cal-Am], which was the principal supplier of water to the
Monterey Peninsula, had diverted excess water from the Carmel River basin „without a
valid basis of right,‟ causing environmental harm. Cal-Am was ordered to substantially
limit its diversions, to mitigate the environmental effects of its excess usage and to
develop a plan for obtaining water legally.” (Save Our Peninsula, supra, 87 Cal.App.4th
at p. 108.)
       Among Cal-Am‟s subsequent efforts to find a legal water source was a proposal
for the Coastal Water Project, which included a water desalination plant. In 2003, the
PUC designated itself as the lead agency for environmental review of the Coastal Water
Project. In 2004, Cal-Am filed an application with the PUC for a certificate of public
convenience and necessity for construction and operation of the Coastal Water Project.
The PUC issued a notice of preparation of an EIR in 2006.
       In 2008, Marina Coast and other public agencies proposed an alternative
desalination project known as the Regional Project. The Regional Project, also known as
the Regional Desalination Project, involved three primary elements. The Water
Resources Agency was to own, install, operate and maintain the wells from which
brackish water would be extracted. Marina Coast was to own, construct, and operate the


       2
           The Water Resources Agency and Cal-Am are not parties to this appeal.

                                              3
desalination plant and transport desalinated water to a delivery point, where Marina Coast
would receive some water for delivery to its customers and Cal-Am would also receive
some water. Cal-Am was to construct a distribution system to deliver the desalinated
water to its customers on the Monterey Peninsula. The PUC approved Cal-Am‟s
participation in the Regional Desalination Project.
       The PUC‟s January 2009 draft EIR evaluated the Regional Desalination Project
and the Coastal Water Project proposed by Cal-Am. The final EIR was issued by the
PUC and certified in December 2009. The PUC did not approve a specific project.
       In March 2010, Marina Coast‟s Board of Directors approved acquisition of the
Armstrong Ranch property for the location of a water desalination plant. Thereafter, on
April 5, 2010, the Board of Directors approved the Regional Desalination Project on the
condition that the PUC approve a settlement agreement pertaining to the Regional
Desalination Project between Cal-Am, Marina Coast, and the Water Resources Agency.
The PUC approved the settlement agreement and issued a certificate of public
convenience and necessity to Cal-Am for the Regional Desalination Project in
March 2011. (Application of California American Water Company (2011) Cal. P.U.C.
Dec. No. 11-03-008 [2011 Cal.PUC LEXIS 141], p. *1.)
       B. Ag Land Trust’s Petition for a Writ of Mandate
       Ag Land Trust is a self-described “California nonprofit public benefit corporation
created with the intent to preserve Monterey County farmland . . . .” In April 2010
Ag Land Trust filed its first amended petition for a writ of mandate against respondent
Marina Coast. In its petition, Ag Land Trust asserted that Marina Coast had formally
approved the Regional Project on April 5, 2010, in reliance on the final EIR certified by
the PUC in 2009 and a March 2010 addendum. Ag Land Trust sought declaratory relief,
consisting of a declaration that Marina Coast had a duty to identify or obtain water rights
for the Regional Project and a declaration that the Regional Project would violate the
Monterey County Water Resources Agency Act. Additionally, Ag Land Trust sought a

                                             4
peremptory writ of mandate directing Marina Coast to set aside its approvals of the
Regional Desalination Project and to prepare a legally adequate EIR in compliance with
CEQA.
       C. The Trial Court’s Statement of Decision and Judgment
       A court trial on Ag Land Trust‟s petition for writ of mandate was held on
October 27, 2011. The trial court‟s amended statement of decision granting the petition
was filed on February 2, 2012. The court found that (1) the final EIR is deficient because
Marina Coast, not the PUC, was the lead agency under CEQA for the Regional Project
since Marina Coast was the first to approve the project; (2) the final EIR is inadequate
because it did not include a discussion of the availability of groundwater for the Regional
Project and assumes that groundwater rights will be perfected in the future; (3) the trial
court had jurisdiction over the matter since the PUC did not have authority to regulate
Marina Coast with respect to the Regional Project; and (4) the Water Resources Agency
and Cal-Am were not indispensible parties.
       The judgment granting the first amended petition for writ of mandate and ordering
issuance of a peremptory writ of mandate was filed on April 17, 2012. The judgment
also included the trial court‟s findings, as follows: “The Court FINDS AND
DETERMINES that Marina Coast Water District prejudicially abused its discretion and
failed to proceed in the manner required by law in making its approvals of the Regional
Desalination Project on March 16, 2010 and April 5, 2010, by proceeding as a
responsible agency rather than as a lead agency, by failing to properly analyze the
environment impact report as a lead agency under CEQA, and by failing to properly and
adequately identify, discuss, and address the environmental impacts of the project,
including but not limited to water rights, contingency plan, assumption of constant
pumping, exportation of groundwater from the Salinas Valley Groundwater Basin, brine
impacts, impacts on overlying and adjacent properties, and water quality, as required here
for a lead agency under CEQA.” The court reserved jurisdiction over Ag Land Trust‟s

                                             5
claim for an award of private attorney general fees and costs under Code of Civil
Procedure section 1021.5.
       On April 17, 2012, the trial court issued a peremptory writ of mandate directing
Marina Coast to “[v]acate and set aside its March 16, 2010 and April 5, 2010 approvals
of the Regional Desalination Project, and each step approved by [Marina Coast] pursuant
to . . . section 21168.9, subdivision (a). Further action to approve the project beyond
setting aside and vacating these approvals by [Marina Coast] shall not be taken, except in
accordance with the Judgment Granting First Amended Petition for Writ of Mandate
([CEQA]) and Ordering Issuance of Peremptory Writ of Mandate.” The peremptory writ
of mandate also directed Marina Coast to prepare a legally adequate EIR and to otherwise
comply with CEQA in any subsequent action to approve the project.
       In June 2012, Marina Coast filed a timely notice of appeal from the judgment.
                                    III. DISCUSSION
       On appeal, Marina Coast contends that the trial court lacked jurisdiction in this
case because collateral attacks on PUC decisions are prohibited under Public Utilities
Code section 1759, subdivision (a). Marina Coast also contends that the judgment should
be reversed due to several procedural bars, including “statutory preclusion,” res judicata,
mootness with respect to the land acquisition, lack of ripeness in the absence of final
project approvals, failure to exhaust administrative remedies, failure to join indispensible
parties, and failure to grant Marina Coast‟s motion to augment the record with the PUC‟s
final project approvals. Additionally, Marina Coast argues that the trial court erred on the
merits, since the PUC properly acted as the lead agency under CEQA and the PUC‟s EIR
for the Regional Desalination Project was adequate.3




       3
         This court granted the PUC‟s application to file an amicus curiae brief regarding
the jurisdictional issue. Ag Land Trust filed an answer to the amicus curiae brief.

                                             6
       As we will discuss, we will not consider the merits of the appeal because we find
that the appeal is moot due to an event that occurred while the appeal was pending. In its
opening brief, Marina Coast acknowledges that in July 2012 the PUC granted Cal-Am‟s
request to withdraw from the Regional Desalination Project and admits that “it is unlikely
that the [Regional Desalination Project] will be built even if [Marina Coast] prevails in its
appeal . . . .” On our own motion, we took judicial notice (Evid. Code, §§ 459, 452,
subd. (c)) of the PUC‟s July 12, 2012 decision finding that Cal-Am has withdrawn its
support for the Regional Desalination Project and granting Cal-Am‟s motion to withdraw
its petition for clarification and modification of a prior PUC decision pertaining to the
Regional Desalination Project. (Decision No. 12-07-008, supra, pp. **27-28, 36.) The
PUC also found in its July 12, 2012 decision that the Regional Desalination Project “has
no reasonable prospect of achieving its goals.” (Id. at p. *28.)
       Since it appeared that Cal-Am‟s withdrawal was potentially fatal to the Regional
Desalination Project, we asked the parties to submit supplemental briefing addressing the
issue of whether the appeal must be dismissed because the PUC‟s action had rendered the
appeal moot. We also asked the parties to include a discussion of the following issues:
(1) the current status of the Regional Desalination Project; (2) the general rule that the
reviewing court may not issue an advisory opinion; and (3) assuming for purposes of
argument that the appeal is moot, whether the appropriate disposition is reversal of the
judgment and remand with directions to the trial court to dismiss the petition for a writ of
mandate.
       A. The Parties’ Contentions
       Ag Land Trust and Marina Coast submitted supplemental briefing in which they
agree that the Regional Desalination Project “will not go forward.” Both parties also
argue that the appeal is not moot.
       Marina Coast contends in its supplemental letter brief that the appeal is not moot
because Cal-Am “now seeks approval of a project that „includes many of the same

                                              7
elements previously analyzed‟ ” in the EIR prepared for the Regional Desalination
Project. Citing section 21166, Marina Coast further explains that “[t]he existing EIR is
being supplemented by a forthcoming Subsequent EIR that will „utilize relevant data‟
from the existing EIR.” 4 Marina Coast also asserts that the PUC‟s July 12, 2012 decision
had no bearing on Marina Coast‟s property acquisition.
       Alternatively, Marina Coast argues that even if the appeal is moot, this court
should exercise its discretion to decide the issues raised on appeal under the exception for
an issue of public importance likely to recur. Specifically, Marina Coast maintains that
the issue of the superior court‟s jurisdiction “in collateral proceedings to review and
correct CPUC decisions relating to time-sensitive CPUC projects” falls into that
exception. Marina Coast also argues that resolution of the jurisdictional issue is
necessary because Ag Land Trust has been awarded attorney‟s fees, which should have
been denied since the trial court lacked jurisdiction in this case.
       Ag Land Trust contends in its supplemental letter brief that the appeal is not moot
because an actual controversy remains as to the adequacy of the EIR for the Regional
Desalination Project. According to Ag Land Trust, “Marina Coast is in the process of
using [its 2010] approvals and the EIR to pursue a different desalination plant at
Armstrong Ranch.” 5 Ag Land Trust therefore argues that an actual controversy remains
as to the deficiencies in the EIR that were identified by the trial court in this case.
Alternatively, if this court determines that the appeal is moot, Ag Land Trust urges that
the appeal be simply dismissed, which will have the effect of affirming the judgment.



       4
          We granted Marina Coast‟s request for judicial notice of a PUC document
entitled “NOTICE OF PREPARATION Environmental Impact Report for the CalAm
Monterey Peninsula Water Supply Project,” dated October 2012.
        5
          We granted Ag Land Trust‟s request for judicial notice of various documents
relating to Marina Coast‟s “new desalination plant” project and the February 6, 2013
order awarding attorney‟s fees to Ag Land Trust.

                                               8
       B. Mootness
       The rules governing the determination of whether an appeal is moot are well
established. “It is settled that „the duty of this court, as of every other judicial tribunal, is
to decide actual controversies by a judgment which can be carried into effect, and not to
give opinions upon moot questions or abstract propositions, or to declare principles or
rules of law which cannot effect the matter at issue in the case before it. It necessarily
follows that when, pending an appeal from the judgment of a lower court, and without
any fault of the defendant, an event occurs which renders it impossible for this court, if it
should decide the case in favor of plaintiff, to grant him [or her] any effectual relief
whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.
[Citations.]‟ [Citations.]” (Paul, supra, 62 Cal.2d at p. 132; see also MHC Operating
Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 215 [case is moot
when reviewing court‟s decision can have no practical impact].)
       However, the appellate court has the inherent power to retain a moot appeal under
three discretionary exceptions: (1) the case presents an issue of broad public interest that
is likely to recur; (2) the parties‟ controversy may recur; and (3) “a material question
remains for the court‟s determination [citation].” (Cucamongans United for Reasonable
Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 480
(Cucamongans).)
       C. Analysis
       In the present case, the actual controversy between the parties was set forth in
Ag Land Trust‟s writ petition, which sought a peremptory writ of mandate directing
Marina Coast to “vacate and set aside its approvals of the Regional Desalination Project,
and each step approved by [Marina Coast], and . . . [to] prepare, circulate and consider a
legally adequate environmental impact report and otherwise comply with the [CEQA] in
any subsequent action taken to consider and/or approve the Project.” Thus, the actual
controversy in this case centered on Ag Land Trust‟s challenge to Marina Coast‟s

                                                9
approvals of the Regional Desalination Project and the adequacy of the EIR for that
particular project.
       Although the parties agree that the Regional Desalination Project will not go
forward since Cal-Am has withdrawn its support, the parties nevertheless contend that an
actual controversy remains with regard to the adequacy of the EIR that was prepared for
the Regional Desalination Project. We disagree, since the EIR was specific to the
approved Regional Desalination Project, as is required under CEQA.
       The provisions of CEQA provide, for example, that “[t]he purpose of an
environmental impact report is to identify the significant effects on the environment of a
project, to identify alternatives to the project, and to indicate the manner in which those
significant effects can be mitigated or avoided.” (§ 21002.1, subd. (a), italics added.)
“An EIR shall describe a range of reasonable alternatives to the project. . . .” (Cal. Code
Regs., tit. 14, § 15126.6, subd. (a), italics added.) “The degree of specificity required in
an EIR will correspond to the degree of specificity involved in the underlying activity
which is described in the EIR. [¶] (a) An EIR on a construction project will necessarily
be more detailed in the specific effects of the project . . . . ” (Cal. Code Regs., tit. 14,
§ 15146, italics added.) Accordingly, where, as here, the issues on appeal concern the
adequacy of the EIR for a project that will not be implemented, the appeal is generally
moot. (See, e.g., Coalition for a Sustainable Future, supra, 198 Cal.App.4th at p. 941.)
       We are not also convinced that the challenge to the adequacy of the EIR for the
Regional Desalination Project remains an actual controversy under section 21166, as
Ag Land Trust suggests. Section 21166 concerns the conditions under which a
supplemental EIR will be required, as stated in the statute in relevant part: “[w]hen an
[EIR] has been prepared for a project . . . no subsequent or supplemental [EIR] shall be
required . . . , unless one or more of the following events occurs: [¶] (a) Substantial
changes are proposed in the project which will require major revisions of the [EIR]. [¶]
(b) Substantial changes occur with respect to the circumstances under which the project is

                                               10
being undertaken which will require major revisions in the [EIR]. [¶] (c) New
information, which was not known and could not have been known at the time the [EIR]
was certified as complete, becomes available.”
       Under section 21166, therefore, a supplemental EIR “is a subsequent version of an
EIR that revises the earlier EIR to make it adequate for a project‟s approval after
conditions have changed.” (Mani Brothers Real Estate Group v. City of Los Angeles
(2007) 153 Cal.App.4th 1385, 1397.) Section 21166 is not applicable under the
circumstances of the present case, where the Regional Desalination Project approved by
Marina Coast will not be implemented due to Cal-Am‟s withdrawal.
       The additional argument that an actual controversy remains regarding the
adequacy of the EIR for the Regional Desalination Project since some elements or data
from that EIR may be used in the future environmental impact analysis of a new
desalination project is similarly unconvincing. By making this argument, the parties are
implicitly requesting that this court provide an advisory opinion regarding the merits of
the trial court‟s finding that the EIR for the now defunct Regional Desalination Project is
legally inadequate. However, we must decline the parties‟ request, since “ „[t]he
rendering of advisory opinions falls within neither the functions nor the jurisdiction of
this court.‟ [Citation.]” (Salazar v. Eastin (1995) 9 Cal.4th 836, 860 (Salazar).)
       Absent an actual controversy, we also decline to issue an advisory opinion on the
issue of whether the trial court properly exercised jurisdiction in this case under Public
Utilities Code section 1759, subdivision (a). (See Salazar, supra, 9 Cal.4th at p. 860.)
Further, we do not find that this moot appeal presents a jurisdictional issue of broad
public interest that is likely to recur, since the record does not reflect that the
jurisdictional issue has the potential to extend, if at all, beyond one proposed desalination
project. (See Cucamongans, supra, 82 Cal.App.4th at p. 479.) In any event, we believe
that if the jurisdictional issue arises, the issue may be determined in a future case
involving an actual controversy.

                                               11
       Having determined that the appeal is moot, and also having declined to issue an
advisory opinion, we next consider the appropriate disposition.
       D. The Appropriate Disposition
       The general rule is that “when a case becomes moot pending an appellate decision,
„the court will not proceed to a formal judgment, but will dismiss the appeal.‟
[Citations].” (Paul, supra, 62 Cal.2d at p. 134.) It is also the general rule that “the
involuntary dismissal of an appeal leaves the judgment intact.” (In re Jasmon O. (1994)
8 Cal.4th 398, 413 (Jasmon O.).)
       In Paul, the California Supreme Court noted that former Code of Civil Procedure
section 955 provided that “ „[t]he dismissal of an appeal is in effect an affirmance of the
judgment or order appealed from. . . .‟ ” (Paul, supra, 62 Cal.2d at p. 134.) Determining
that the basis for the judgment in the case before it had “disappeared,” the Paul court
further determined that “we should „dispose of the case, not merely of the appellate
proceeding which brought it here.‟ [Citations.] That result can be achieved by reversing
the judgment solely for the purpose of restoring the matter to the jurisdiction of the
superior court, with directions to the court to dismiss the proceeding. [Citations.] Such a
reversal, of course, does not imply approval of a contrary judgment, but is merely a
procedural step necessary to a proper disposition of this case.” (Id. at pp. 134-135.)
       In 1968, Code of Civil Procedure section 955 was repealed and replaced with
Code of Civil Procedure section 913, which provides that “[t]he dismissal of an appeal
shall be with prejudice to the right to file another appeal within the time permitted, unless
the dismissal is expressly made without prejudice to another appeal.” (Stats. 1968,
ch. 385, § 2.) Although the statutory language regarding the effect of the dismissal of an
appeal has changed, courts have continued to follow the ruling in Paul that dismissal of
an appeal as moot constitutes an affirmance of the judgment. (See Jasmon O., supra,
8 Cal.4th at p. 413.)



                                             12
       Courts have also continued to apply the rule set forth in Paul that “ „ “[w]here an
appeal is disposed of upon the ground of mootness and without reaching the merits, in
order to avoid ambiguity, the preferable procedure is to reverse the judgment with
directions to the trial court to dismiss the action for having become moot prior to its
final determination on appeal. [Citations.]” [Citations.]‟ [Citation].” (Giles v. Horn
(2002) 100 Cal.App.4th 206, 229; see Coalition for a Sustainable Future, supra,
198 Cal.App.4th at p. 944-945; Wilson & Wilson v. City Council of Redwood City (2011)
191 Cal.App.4th 1559, 1585-1586; San Bernardino Valley Audubon Society v.
Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 404; County of San Diego v.
Brown (1993) 19 Cal.App.4th 1054, 1090; In re Marriage of Mcfarlane & Lang (1992)
8 Cal.App.4th 247, 258; Lee v. Gates (1983) 141 Cal.App.3d 989, 992-994.)
       We determine that a disposition under the rule of Paul and its progeny, rather than
a simple dismissal of the appeal, is appropriate in the present case. “Reversal with
directions to the trial court to dismiss is the equivalent of dismissal of the appeal, but
avoids the ambiguity of the latter procedure which does not dispose of a subsisting trial
court judgment in a case wherein the issues are moot.” (Bell v. Board of Supervisors
(1976) 55 Cal.App.3d 629, 637.) Having concluded that the appeal is moot, and also
having declined to reach the merits by way of an advisory opinion, we will appropriately
avoid affirming the judgment by implication. (See Coalition for a Sustainable Future,
supra, 198 Cal.App.4th at pp. 944-945.)
       Finally, we emphasize that in our decision today we express no opinion regarding
the pending appeal of the February 6, 2013 order awarding attorney‟s fees to Ag Land
Trust (AG Land Trust v. Marina Coast Water District, H039559), of which we only take
judicial notice. (Evid. Code, § 452, subd. (d)(1).)




                                              13
                                   IV. DISPOSITION
       The judgment is reversed and the matter is remanded with directions to the trial
court to dismiss the petition for writ of mandate as moot. The parties shall bear their own
costs on appeal.




                                   ___________________________________________
                                   BAMATTRE-MANOUKIAN, J.




WE CONCUR:




________________________________
ELIA, ACTING P.J.




_________________________________
MÁRQUEZ, J.




                                            14
