Malaga County Water Dist. v. Central Valley Regional Water Quality etc. CA5

Filed 12/10/20 Malaga County Water Dist. v. Central Valley Regional Water Quality etc. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

MALAGA COUNTY WATER DISTRICT, F078776 Plaintiff and Appellant, (Super. Ct. No. 16CECG03036) v.

CENTRAL VALLEY REGIONAL WATER OPINION QUALITY CONTROL BOARD,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Fresno County. Rosemary T. McGuire, Judge. Costanzo & Associates and Neal E. Costanzo for Plaintiff and Appellant. Xavier Becerra, Attorney General, Robert W. Byrne, Assistant Attorney General, Randy L. Barrow and Nhu Q. Nguyen, Deputy Attorneys General, for Defendant and Respondent. -ooOoo- This is the second of two appeals arising out of Fresno Superior Court case No. 16CECG03036, and one of several appeals currently pending between Malaga County Water District (Malaga) and the Central Valley Regional Water Quality Control Board (Water Quality Board). The parties are in an ongoing dispute regarding Malaga’s wastewater treatment facility. In various administrative proceedings, Malaga has been

fined for improper discharges and alleged failures to execute legally mandated actions in its business operations. Malaga, for its part, has alleged that the Water Quality Board has regularly and consistently violated Malaga’s rights in order to improperly impose fines or otherwise disrupt Malaga’s business activities. FACTUAL AND PROCEDURAL BACKGROUND In a companion appeal, the Water Quality Board appealed following a finding that it had relied on an invalid underground regulation when conducting proceedings related to Malaga (case No. F078327). After the trial court’s ruling, Malaga sought its costs and its attorney fees. Relevant to this appeal, Malaga sought costs related to its attempt to file an administrative record. This request was denied, in part, because Malaga’s original submission of the record had been struck. Malaga contends both the decision to strike the filing and the striking of its costs were improper. With respect to its attorney fees, Malaga sought its full fees under Code of Civil Procedure section 1021.5, which permits the recovery of fees when the underlying action resulted in the enforcement of an important right affecting the public interest, a significant benefit has been conferred on the public, and the necessity and financial burden of enforcement makes the award appropriate. The trial court denied this request, concluding that Malaga’s financial interest in prevailing in the litigation disqualified it under the financial burden prong. Returning to the companion appeal, in our resolution of that case we concluded that although a void underground regulation had been utilized, the trial court incorrectly determined that error required reversal. We thus reversed the trial court’s order and remanded for further proceedings. Based on this result, we must also vacate the trial court’s costs and attorney fees order. We specifically note that the court should independently examine the issues and exercise its discretion should these issues arise again in the case.