Conway Preservation Group, LLC v. California Department of Water Resources, et al

Because DWR was acquiring these flowage easements through its eminent domain power, it sought “resolutions of necessity” authorizing DWR to acquire the easements through eminent domain. (Petition, ¶ 5; see Code of Civil Procedure,1 § 1245.220.) Petitioner alleges that on February 21, 2023, the Commission issued a Notice of Intent to adopt a resolution of necessity authorizing the taking of a flowage easement over portions of the Conaway Ranch, which belongs to Petitioner. (Petition, ¶¶ 9, 13.) The Commission allegedly adopted such a resolution of necessity, No. 2023-07, on March 15, 2023 (“the March 2023 RON”). (Id. at ¶¶ 13, 26, 53.) In reliance on the March 2023 RON, DWR has filed a Complaint in Eminent Domain against Petitioner in the Yolo County Superior Court to take a flowage easement. (Id. at ¶ 27.)

Petitioner alleges that “neither the Commission nor DWR conducted any environmental review under CEQA of the broader use purported to be authorized by the [March 2023] RON, to facilitate an expanded project being designed and implemented to allow for 12,000 cfs flow through the Yolo Bypass through late-spring.” (Petition, ¶ 53.) The original EIR governing the Project as approved did not cover that activity. (Id. at ¶ 51.) Petitioner alleges that “to the extent the Commission may have relied on [the March 2022 NOE]” to support the findings required for a RON, that reliance was “flawed and unlawful” because “the NOE is invalid.” (Id. at ¶ 54.)

Accordingly, Petitioner alleges that when it approved the March 2023 RON, the Commission “was deprived of information essential to an informed decision whether the public interest and necessity required condemnation of the flowage easement sought by DWR,” meaning the March 2023 RON does not lawfully authorize the easement DWR is now relying on it to take. (Id. at ¶ 51.)

The Petition contains five causes of action for violation of CEQA and one cause of action for violation of the Delta Reform Act. Petitioner’s Second Cause of Action, entitled “Violation of CEQA – Invalid Exemption for Easement Acquisitions,” alleges that “DWR and the Commission” violated CEQA by issuing the March 2022 NOE. (Petition, ¶¶ 79-80.) DWR now demurs to the Petition’s Second Cause of Action only.

DEMURRER

LEGAL STANDARD

The function of a demurrer is to test the legal sufficiency of the challenged pleading. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) As a general rule, in testing a pleading against a demurrer, the facts alleged in the pleading are deemed to be true, however improbable they may be. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567-568.) A complaint

1 Any undesignated statutory references are to the Code of Civil Procedure.

must be liberally construed and all reasonable inferences must be drawn in favor of its allegations. (Teva Pharmaceuticals USA, Inc. v. Superior Court (2013) 217 Cal.App.4th 96, 102; see also Code Civ. Proc., § 452.) The court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Calif. (1990) 51 Cal.3d 120, 125.)

In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The face of the complaint includes matters shown in exhibits attached to the complaint and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank, supra, 39 Cal.3d 311, 317.)

DISCUSSION

“Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.” (§ 426.30, subd. (a).) “ ‘Related cause of action’ means a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (§ 426.10, subd. (c).)

For two causes of action to be “related” within the meaning of the compulsory cross-complaint statute, there must be a “logical relationship” between them, as where they “ ‘involve[] common issues of law and fact,’ an ‘overlap of issues,’ and a common transaction.” (ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 82 [quoting Currie Medical Specialties, Inc. v. Bowen (1982) 136 Cal.App.3d 774, 777].) “At the heart of the approach is the question of duplication of time and effort; i.e., are any factual or legal issues relevant to both claims?” (Currie, supra, 136 Cal.App.3d 774, 777.)

Petitioner’s Second Cause of Action alleges that DWR violated CEQA when it issued the March 2022 NOE, which deemed exempt from CEQA DWR’s acquisition of flowage easements (not specifically flowage easements over Petitioner’s property, but flowage easements writ large) in connection with the Project. (Id. at ¶¶ 25, 46, 48.) DWR’s eminent domain complaint against Petitioner is an attempt to acquire a flowage easement over Petitioner’s property in connection with the Project. (Petitioner’s Request for Judicial Notice (“Petitioner’s RJN”),2 Ex.

B, ¶¶ 1-2.) Both Petitioner’s Second Cause of Action and DWR’s eminent domain complaint against Petitioner thus “aris[e] out of the same transaction, occurrence, or series of transactions or 2 Petitioner’s requests for judicial notice are all GRANTED, as are DWR’s. (Evid. Code, § 452, subds. (c), (d).) Regarding DWR’s objection to the request for judicial notice of Petitioner’s Exhibit A: The Court is judicially noticing the existence of the document. Neither the truthfulness of its contents nor the accuracy of Petitioner’s interpretation of its contents is established by judicial notice. (See AL Holding Co. v.

O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313.)

occurrences” (§ 426.10, subd. (c)) – namely, DWR’s endeavor to acquire flowage easements in connection with the Project.

Petitioner’s own allegations in the Petition connect the Second Cause of Action to the eminent domain proceeding in such a manner that there are “factual or legal issues relevant to both claims[.]” (Currie, supra, 136 Cal.App.3d 774, 777.) Petitioner alleges that the alleged CEQA violation that is the subject of the Second Cause of Action infected DWR’s and the Commission’s exercise of the power of eminent domain against Petitioner’s property. (See Petition, ¶¶ 54 [“To the extent the Commission may have relied on DWR’s [March] 2022 NOE [in adopting the March 2023 RON], such reliance was flawed and unlawful for multiple reasons, including” improper reliance on a CEQA exemption]; 51 [flowage easement acquisition project’s lack of CEQA compliance meant “the Commission was deprived of information essential to an informed decision whether the public interest and necessity required condemnation of the flowage easement sought by DWR, and the [March 2023] RON necessarily could not have lawfully authorized the easement that DWR now seeks to condemn.”].)

Given these allegations, Petitioner cannot dispute that whether the flowage easement acquisition project properly claimed a CEQA exemption bears on DWR’s right to take Petitioner’s property, meaning there is a common issue between the Second Cause of Action and the eminent domain complaint.

These are “related cause[s] of action” within the meaning of the compulsory crosscomplaint statute. Having not pursued its Second Cause of Action in a cross-complaint against DWR in the eminent domain proceeding, Petitioner cannot assert that claim against DWR in this action. (§ 426.30, subd. (a).)

In opposition, Petitioner argues that the compulsory cross-complaint statute’s exception (see Code Civ. Proc., § 426.30, subd. (a) [“Except as otherwise provided by statute, . . .]) applies here. Petitioner first invokes the rule of compulsory joinder, Code of Civil Procedure, section 389:

“A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”

The court finds that Section 389 is not relevant here. DWR already is a party in this action and already is sued on the Second Cause of Action. There does not appear to be authority for the idea that because a party would need to be joined under Section 389 were it not already involved in the case, that party must stay a party notwithstanding that the claims alleged against it are legally defective and subject to dismissal. This argument is not tethered to the purpose of the compulsory joinder rule.

Petitioner also argues that it is bringing this suit as a “private attorney general,” referring to Code of Civil Procedure, section 1021.5, a statute providing for attorney’s fee awards to

litigants who bring successful lawsuits benefiting the public. Petitioner’s theory is that it is not bringing the Second Cause of Action as a “party against whom a complaint has been filed” within the meaning of the compulsory cross-complaint statute (§ 426.30), but instead as a “private attorney general” under Section 1021.5. Petitioner is a “party against whom a complaint has been filed” for purposes of Section 426.30 because DWR filed a complaint against it. A party seeing attorney’s fees under the private attorney general statute does not excuse it from complying with generally applicable rules of civil procedure.

Petitioner argues that applying the compulsory cross-complaint rule would undermine the objective of that rule, as it “would result in unnecessary incongruity where different CEQAbased causes of action raised by the same petitioner . . . with respect to the same project and agency actions were heard by different courts in different venues against different parties.” (Opposition, pp. 17-18.) Section 426.30 provides that if a party against whom a complaint was filed failed to allege in a cross-complaint a related cause of action it had against the party that filed the complaint, it “may not” assert that cause of action against the other party in another action. (§ 426.30, subd. (a).)

This is not a discretionary statute. If a defendant demurs to a cause of action on the basis that it is barred by Section 426.30 and the court concludes that the defendant is correct, it is not permitted to allow the cause of action to proceed based on considerations of judicial economy. The Court notes that there are two statutory exceptions to Section 426.30 (see § 426.30, subd. (b)), and neither of them permit a court to ignore the rule because it would not function as intended in the case at hand.

Finally, Petitioner argues that DWR should be barred from arguing that these claims are related under principles of judicial estoppel. Petitioner presents a response DWR submitted to a Notice of Related Cases in February 2025. (Petitioner’s RJN, Ex. D.) The Notice argued that the Petition in this case is related to sixteen different eminent domain proceedings, including the one against Petitioner. (Id. at p. 2 & fn. 2.) In its response, DWR argued that the various eminent domain proceedings and this action do not meet California Rule of Court, rule 3.300(a)’s relatedness standard, which, on its face, appears similar to the standard for “related cause of action” under the compulsory cross-complaint statute.

To successfully invoke the doctrine of judicial estoppel, a party must present evidence that the party to be estopped “was successful in invoking the first position (i.e., the tribunal adopted the position or accepted it as true)[.]” (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 85 [quoting Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183].) Petitioner does not present evidence that this criterion is satisfied. It leans on the statement that after DWR submitted this response to the Notice of Related Cases, “[t]he Court . . . took no action to relate the cases.” (Opposition, p. 19.)

This does not establish that the Court agreed with DWR about the nature of the relationship between the claims. A court’s power to relate cases is discretionary. (See Cal. Rules of Court, rule 3.300(h).) The Court could have believed that the relatedness standard was satisfied – disagreeing with DWR’s argument in its response – and still decided not to relate the cases. “Judicial estoppel is an extraordinary remedy that should be applied with caution.” (Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 598.)

The evidence is simply not compelling enough to apply it here.

The demurrer is SUSTAINED. (See Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 994 [affirming trial court decision sustaining a demurrer based on failure to assert claim in a

compulsory cross-complaint].) Leave to amend is denied because the defect is not curable by amendment. (Blank, supra, 39 Cal.3d 311, 317.)

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for May, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1

Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov