Professional Documents
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Answer To Cross-Complaint Cgc-13-528312 04-10-13
Answer To Cross-Complaint Cgc-13-528312 04-10-13
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ELECTRONICALLY
FILED
Superior Court of California.
County of San Francisco
APR 10 2013
Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SAN FRANCISCO
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CALIFORNIA-AMERICAN WATER
COMPANY, a California corporation,
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Plaintiff,
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Dept.: 304
Judge: Honorable Curtis E.A. Kamow
vs.
MARINA COAST WATER DISTRICT,
MONTEREY COUNTY WATER
RESOURCES AGENCY; and DOES 1
through 10, inclusive,
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Defendants.
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MARINA COAST WATER DISTRICT,
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Cross-Complainant,
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vs.
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CALIFORNIA-AMERICAN WATER
COMPANY, a California corporation;
MONTEREY COUNTY WATER
RESOURCES AGENCY; and ROES I
through 50, inclusive,
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Cross-Defendants.
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Cross-defendant Monterey Connty Water Resources Agency ("Agency") answers the crosscomplaint of cross-complainant Marina Coast Water District ("MCWD") as follows:
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The Agency has no information or belief upon the subject sufficient to enable it to
answer the allegations in Paragraph 4 and denies all the allegations in that Paragraph on that gronnd.
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In answer to the allegations in Paragraph 6, the Agency admits only that the actions of
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the State Water Resources Control Board are matters of public record and the record speaks for
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7.
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In answer to the allegations in Paragraph 7, the Agency admits only that the actions of
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the State Water Resources Control Board and the California Public Utilities Commission are matters
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of public record and the record speaks for itself. The Agency denies all remaining allegations in
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Paragraph 7.
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8.
In answer to the allegations in Paragraph 8, the Agency admits only that the actions of
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the California Public Utilities Commission and the actions of the Agency, MCWD and the
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California-American Water Company that preceded the actions of the California Public Utilities
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Commission are matters of public record and the record speaks for itself. The Agency denies all
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In answer to the allegations in Paragraph 9, the Agency admits only that the Water
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Purchase Agreement speaks for itself, that its interpretation is a question of law, that the actions of
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the California Public Utilities Commission are matters of public record and that the record speaks for
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10.
In answer to the allegations in Paragraph 10, the Agency admits only that Stephen P.
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Collins provided paid services to RMC Water and Enviromnent and MCWD while he was a member
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of the Agency's Board of Directors. The Agency denies all remaining allegations in Paragraph 10.
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The Agency has no information or belief upon the subject sufficient to enable it to
answer the allegations in Paragraph 13 and denies all the allegations in that Paragraph on that
ground.
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The Agency has no information or belief upon the subject sufficient to enable it to
answer the allegations in Paragraph 14 and denies all the allegations in that Paragraph on that
ground.
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In answer to the allegations in Paragraph 15, the Agency admits only that Stephen P.
Collins' statements and actions at the Agency meeting on September 27, 2010 are a matter of public
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record and the record speaks for itself. The Agency denies all remaining allegations in Paragraph
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In answer to the allegations in Paragraph 17, the Agency admits only that conflict of
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interest allegations about Stephen P. Collins became public in early 20 II and Collins resigned from
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the Agency's Board of Directors. The Agency denies all remaining allegations in Paragraph 17.
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The Agency has no information or belief upon the subject sufficient to enable it to
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answer the allegations in Paragraph 18 and denies all the allegations in that Paragraph on that
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ground.
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In answer to the allegations in Paragraph 19, the Agency admits all the regional
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desalination project agreements are void but that MCWD disagrees. The Agency denies all
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In answer to the allegations in Paragraph 21, the Agency admits all the regional
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desalination project agreements are void but that MCWD disagrees. The Agency denies all
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22.
In answer to the allegations in Paragraph 22, the Agency admits only that
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interpretation of the Agency Act and, more specifically, Water Code Appendix section 52-39, is a
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question oflaw. The Agency denies all remaining allegations in Paragraph 22.
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23.
In answer to the allegations in Paragraph 23, the Agency admits only that
interpretation of Code of Civil Procedure section 863 is a question of law. The Agency denies all
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In answer to the allegations in Paragraph 24, the Agency admits all the regional
desalination project agreements are void but that MCWD disagrees. The Agency denies all
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In answer to the allegations in Paragraph 26, the Agency admits all the regional
desalination project agreements are void, that MCWD disagrees and that interpretation of Water
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Code section 30066 is a question oflaw. The Agency denies all remaining allegations in Paragraph
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26.
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27.
In answer to the allegations in Paragraph 27, the Agency admits only that
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interpretation of Code of Civil Procedure section 863 is a question of law. The Agency denies all
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28.
In answer to the allegations in Paragraph 28, the Agency admits all the regional
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desalination project agreements are void but that MCWD disagrees. The Agency denies all
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In answer to the allegations in Paragraph 30, the Agency admits all the regional
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desalination project agreements are void, that MCWD disagrees and that interpretation of
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Government Code section 53511 is a question oflaw. The Agency denies all remaining allegations
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in Paragraph 30.
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In answer to the allegations in Paragraph 31, the Agency admits only that
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interpretation of Code of Civil Procedure section 863 is a question of law. The Agency denies all
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32.
In answer to the allegations in Paragraph 32, the Agency admits all the regional
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desalination project agreements are void but that MCWD disagrees. The Agency denies all
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33.
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In answer to the allegations in Paragraph 34, the Agency admits all the regional
desalination project agreements are void, that MCWD disagrees and that interpretation of Public
Utilities Code section 1731 is a question of law. The Agency denies all remaining allegations in
Paragraph 34.
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In answer to the allegations in Paragraph 35, the Agency admits all the regional
desalination project agreements are void but that MCWD disagrees. The Agency denies all
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37.
In answer to the allegations in Paragraph 3 7, the Agency admits all the regional
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desalination project agreements are void, that MCWD disagrees and that interpretation of Public
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Utilities Code section 1756 is a question oflaw. The Agency denies all remaining allegations in
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Paragraph 37.
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38.
In answer to the allegations in Paragraph 38, the Agency admits all the regional
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desalination project agreements are void but that MCWD disagrees. The Agency denies all
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39.
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40.
In answer to the allegations in Paragraph 40, the Agency admits all the regional
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desalination project agreements are void, that MCWD disagrees and that interpretation of Public
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Utilities Code section 1709 is a question oflaw. The Agency denies all remaining allegations in
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Paragraph 40.
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In answer to the allegations in Paragraph 41, the Agency admits all the regional
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desalination project agreements are void but that MCWD disagrees. The Agency denies all
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43.
In answer to the allegations in Paragraph 43, the Agency admits all the regional
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desalination project agreements are void, that MCWD disagrees and that interpretation of Public
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Utilities Code section 1759 is a question oflaw. The Agency denies all remaining allegations in
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Paragraph 43.
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In answer to the allegations in Paragraph 44, the Agency admits all the regional
desalination project agreements are void but that MCWD disagrees. The Agency denies all
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE the Agency alleges the cross-complaint
and each and every alleged cause of action therein fails to state of cause of action.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE the Agency alleges the regional
desalination project agreements and each of them are void as a result of the violation of Govermnent
Code section 1090 caused by the conduct of Stephen P. Collins, RMC Water and Enviromnent and
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MCWD.
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AS AND FOR A THIRD AFFIRMATIVE DEFENSE the Agency alleges MCWD is not
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entitled to equitable or any relief as a result of its participation in the conduct that created a conflict
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of interest and violated Govermnent Code section 1090 and that its conduct constitutes unclean
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contributed to the matters alleged in the cross-complaint and to its injuries and damages, if any, as
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alleged therein and that, by reason its contribution, MCWD is barred from any relief in this action.
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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE the Agency alleges section 52-39 of
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the Water Code Appendix has no application to the regional desalination project agreements which
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were rendered void as a result of the violation of Government Code section 1090 and nothing in the
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Agency Act or the authorities that interpret it prevents the violation of section 1090 from rendering
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE the Agency alleges Code of Civil
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Procedure section 863 has no application to the regional desalination project agreements which were
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rendered void as a result of the violation of Govermnent Code section 1090 and nothing in section
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863 or the authorities that interpret it prevents the violation of section 1090 from rendering those
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contracts void.
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AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE the Agency alleges Water Code
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section 30066 has no application to the regional desalination project agreements which were
rendered void as a result of the violation of Government Code section 1090 and nothing in section
30066 or the authorities that interpret it prevents the violation of section 1090 from rendering those
contracts void.
Code section 53511 has no application to the regional desalination project agreements which were
rendered void as a result of the violation of Government Code section 1090 and nothing in section
53511 or the authorities that interpret it prevents the violation of section 1090 from rendering those
contracts void.
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AS AND FOR A NINTH AFFIRMATIVE DEFENSE the Agency alleges Public Utilities
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Code section 1731 has no application to the regional desalination project agreements which were
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rendered void as a result of the violation of Government Code section 1090 and nothing in section
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1731 or the authorities that interpret it prevents the violation of section 1090 from rendering those
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contracts void.
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AS AND FOR A TENTH AFFIRMATIVE DEFENSE the Agency alleges Public Utilities
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Code section 1756 has no application to the regional desalination project agreements which were
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rendered void as a result of the violation of Government Code section I 090 and nothing in section
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1756 or the authorities that interpret it prevents the violation of section 1090 from rendering those
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contracts void.
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Utilities Code section 1709 has no application to the regional desalination project agreements which
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were rendered void as a result of the violation of Government Code section 1090 and nothing in
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section 1709 or the authorities that interpret it prevents the violation of section 1090 from rendering
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Utilities Code section 1759 has no application to the regional desalination project agreements which
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were rendered void as a result of the violation of Government Code section 1090 and nothing in
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section 30066 or the authorities that interpret it prevents the violation of section 1090 from rendering
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Government Code section I 092 is the statute oflimitations that applies to violations of Govermnent
Code section 1090 and the alleged causes of action in the cross-complaint are based on statutes and
policy strongly disfavors conduct that violates Govermnent Code section I 090 and that statutes of
limitation establishing shorter time limits for other disputes or contractual challenges in other
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violations of Govermnent Code section I 090 would effectively insulate egregious conflicts of
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interest of the type that resulted from the conduct of Stephen P. Collins, RMC Water and
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Environment and MCWD from judicial review and injure the public.
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delay of over two years in asserting that the regional desalination projects agreements remain valid
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despite the conduct of Stephen P. Collins, RMC Water and Environment and MCWD and the
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resulting violation of Govermnent Code section I 090 was unreasonable and without substantial
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MCWD has known about the conduct of Stephen P. Collins, RMC Water and Environment and
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MCWD and the resulting conflict of interest for over two years, that MCWD has agreed the conduct
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constituted a violation of Government Code section I 090, that MCWD has known the Agency
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believes the violation of section 1090 rendered the regional desalination agreements void, and that
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MCWD has known California-American Water Company considers the agreements to have been
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repudiated and terminated. It was, and is, unreasonable for MCWD to have waited until now to
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assert that the agreements are still valid and, as a consequence, MCWD is barred and estopped from
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knew or had reason to know all the matters alleged in its cross-complaint over two years ago and
MCWD's failure to timely file an action to validate, ratify or affirm the regional desalination project
agreements under any of the statutes or authorities MCWD relies on or references in its cross-
complaint bars MCWD from asserting those statutes and authorities now.
WHEREFORE, the Agency prays that MCWD take nothing by way of its cross-complaint
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and that judgment thereon be entered in favor of the Agency and against MCWD and that the
Agency be awarded its reasonable attorney fees and costs together with such other relief as the Court
deems just.
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By: _
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MARK A. WASSER
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NO VERIFICATION REQUIRED
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law Offices ol
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PROOF OF SERVICE
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[X]
BY U.S. MAIL: I placed such sealed envelope, with postage thereon fully prepaid for
first-class mail, for collection and mailing at Law Offices of Mark A. Wasser,
Sacramento, California, following ordinary business practices addressed as listed below;
and/or
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VIA FEDERAL EXPRESS: I caused each such envelope to be delivered via Federal
Express overnight service to the address listed below; and/or
VIA FACSIMILE: I caused each such document to be sent by facsimile machine number
(916) 444-6405 to the following persons or their representative at the address and the
facsimile number listed below by Amy Remly; and/or
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[X]
VIA EMAIL: I caused each such document to be sent by electronic mail to the email
address listed below:
SEE ATTACHED SERVICE LIST
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I declare under penalty of perjury that the foregoing is true and correct. Executed at
Sacramento, California, on April I 0, 2013.
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-IPROOF OF SERVICE
SERVICE LIST
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Robert R. Moore
Allen Matkins Leek Gamble Mallory & Natsis LLP
Three Embarcadero Center, 12'h Floor
San Francisco, California 94111
Email: [email protected]
James L. Markman
B. Tilden Kim
Richards, Watson & Gershon
355 South Grand Avenue, 401h Floor
Los Angeles, California 90071
Email: [email protected]
tkim@rwglaw .com
Mark Fogelman
Ruth Stoner Muzzin Friedman Springwater LLP
33 New Montgomery Street, Suite 290
San Francisco, California 94105
Email: [email protected]
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-2PROOF OF SERVICE