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Cal. Super. - 6th Dist.March 22, 2018

oO © oo ~N oO ga A W N = N N O N N D N D N N N N DN N D DN AA A a a a Q Q QQ @ aS a «a 0 ~N O O a A W N =~ O © 0 N N oO oa Ah O N = 18CV 325287 Santa Clara - Civil Electronically Filed RICHARD DOYLE, City Attorney (88625) oy per c ourt of CA, NORA FRIMANN, Assistant City Attorney (93249) ounty of Santa Clara, CHRISTIAN B. NIELSEN, Chief Deputy City Attorney (87972) on 10/15/2018 4:55 PM ELISA TOLENTINO, Senior Deputy City Attorney (245962) Reviewed By: R. Walker atl re Deputy City Attorney (293037) Case #18CV325287 ice of the Ci orney . 200 East Santa Clara Street, 16" Floor Envelope: 2059118 San José, California 95113-1905 Telephone Number: (408) 535-1900 Facsimile Number: (408) 998-3131 E-Mail Address: cao.main@sanjoseca.gov Attorneys for Defendant, CITY OF SAN JOSE SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION DONALD LIEBERMAN, et al., Case Number: 18CV325287 (LEAD) C 18CV325283 Plaintiffs, 1 8CV325285 - 18CV325282 18CV325346 SANTA CLARA VALLEY WATER 18CV325289 DISTRICT, et al. REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT CITY OF SAN JOSE’S JORGE GONZALEZ, et al., DEMURRER Defendants. Plaintiffs, [Exempt from filing fees, per Gov. Code v section 6103] SANTA CLARA VALLEY WATER DISTRICT, et al. Defendants. ERIC AND ANNA HECKMAN, et al., Plaintiffs, V. SANTA CLARA VALLEY WATER DISTRICT, et al. Defendants. REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT Lead Case No: 18CV325287 CITY OF SAN JOSE’S DEMURRER 1561557.doc © 00 N N OO ga Hh 0 N N = N N N N ND N D ND N N ND NM DN = aa a a aa d a c A o a a o a = oo NN oO Oo hA hA oW w nN =~ © © oo ~N Oo oO nH Ww NN - o BARBARA McCREIGHT, et al., Plaintiffs, v. SANTA CLARA VALLEY WATER DISTRICT, et al. Defendants. PRESTON AND NORWITA POWELL, et al., Plaintiffs, Vv. SANTA CLARA VALLEY WATER DISTRICT, et al. Defendants. JOAN RIVAS-COSBY, Plaintiff, V. SANTA CLARA VALLEY WATER DISTRICT, et al. Defendants REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT CITY OF SAN JOSE’S DEMURRER Lead Case No: 18CV325287 1561557.doc © 00 ~N OO Oo HA W N = N N N N N N N N D D N D N D N em a m d e d e d e d e d e d e d 0 ~N O O oO A O N a2 O O © 0 N N oO a bh p ww N ~~ Oo L INTRODUCTION Plaintiffs’ Opposition (“Opp.”) to the City of San José (“City”) Demurrer does not overcome the City’s legal reasoning for asking the Court through demur to “clean-up” the First Amended and Consolidated Complaint (“FAC”). Accordingly, the City asks that the Court sustain its demurrer without leave to amend as to all causes of action. If the Court does not sustain the City’s general demurs, then the City asks the Court alternatively to sustain its special demur for uncertainty and leave Plaintiffs to amend by specifically identifying the parcels upon the Coyote Creek at issue. IL. ARGUMENT A. THE ESA IMMUNIZES THE CITY’S EMERGENCY RESPONSE. Plaintiffs make two responses to the City’s demurrer under the Emergency Services Act (“ESA”). First, Plaintiffs assert the City’s acts were mandatory, not discretionary as required by the immunity. (Opp. 4:1-8; 4:24-5:2.) This argument is entirely premised on Plaintiffs’ contention that Government Code section 8643 creates a mandatory duty on behalf of the City once an emergency is declared to perform all public safety services flawlessly. (Opp. 4:24-5:2.) That is not what Section 8643 says. It does not discuss “public safety services;” it only discusses basic services to preserve “law and order” and furnish “local services.” (Gov. Code, § 8643(d).) Moreover, this section occurs as part of the ESA’s provisions for reestablishing local governments damaged or destroyed by an emergency. Properly understood, this section is merely directive and directs governing bodies to “proceed” to return basic services after a catastrophic occurrence and only then “so much as possible.” (Gov. Code, § 8635 (stating purpose of article where this section occurs is to help “so far as possible” to continue or restore government services after calamity).) Finally, if Plaintiffs were correct, then the immunity in Government Code section 8655 would be a nullity. Under Plaintiffs’ interpretation, it would only apply to discretionary acts after an emergency is “duly declared,” and under Plaintiffs’ interpretation of Section 8643, there would be no discretionary acts after an emergency is declared. This interpretation cannot stand. (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390 (statutes may not be interpreted to render other provisions superfluous).) 1 REPLY TO PLAINTIFFS® OPPOSITION TO DEFENDANT Lead Case No: 18CV325287 CITY OF SAN JOSE’S DEMURRER 1561557.doc © 00 N N OO Oa Ap O N = N N N D N D N D N D ND N D N N 2 a a aa a o d a a a 0 ~N OO ag A W O N 2 O O © Oo N O O o h h O N ~~ OO Second, Plaintiffs argue the ESA only immunizes acts after the City “duly” declares a state of emergency. (Opp. 3:13-26; 4:14-5:26.) The statute providing immunity does not contain that element. (See Gov. Code, § 8655 (immunizing action or inaction “in carrying out the provisions of this chapter™).) Nor do any of the “provisions of this chapter” cited by the City in support of its actions. (Demurrer 2:16-24 (citing Gov. Code, §§ 8589.5, 8607, 8631, and 8634).) Rather, Plaintiff arrives at this novel conclusion by citing Government Code section 8634s use of the term “local emergency” and noting Government Code section 8558(c) describes “local emergency” as being the “duly proclaimed existence of conditions of disaster or of extreme peril.” (Opp. 4:14-23.) This tendentious attempt to insert an additional element is not persuasive. As a threshold issue, Government Code sections 8589.5 (response to dam related flooding) and 8607 (emergency communications system) do not use the term “local emergency” and so cannot be limited by the element Plaintiffs advocate. Even if this element exists, the City acting under these provisions of the ESA would be immunized. Moreover, no authority supports Plaintiffs’ position. Rather the one decision addressing if such an element exists concluded, “[ T]he language of section 8655 presents no such limitation. If the Legislature had intended to so limit the scope of the section, we presume it would have said so.” (Soto v. State of California (1997) 56 Cal.App.4th 196, 202.) Plaintiffs neither cite to nor differentiate Soto, which is binding precedent here. Additionally, basic principles of statutory construction bely Plaintiffs’ attempt to add this element. “Where the same word or phrase might have been used in the same connection in different portions of a statute but a different word or phrase having different meaning is used instead, the construction employing that different meaning is to be favored.” (Alameda County Flood Control & Water Conservation Dist. v. Department of Water Resources (2013) 213 Cal. App.4th 1163, 1186.) Elsewhere in the ESA where the Legislature intended immunity to apply only after a declaration of emergency, it simply said so. (See Gov. Code, § 8657.5 (immunity for private businesses only “during a declared state of war, state of emergency, or state of local emergency”) (emphasis added).) If Plaintiffs were correct, “declared” in Section 8657.5 would be redundant. (E.g., Imperial Merchant Services, Inc. 2 REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT Lead Case No: 18CV325287 CITY OF SAN JOSE’S DEMURRER 1561557 doe © 00 N N oO Oo HbA 0 N N = N N N D N D N D N N N D N D D N D N Q Q O d a a a a a md da e d = 0 ~N O O Oo A W O N 2 O O © 0 N N O O a bh p W O N ~ ~ Oo v. Hunt (2009) 47 Cal.4th 381, 390 (“Statutes must be interpreted, if possible, to give each word some operative effect.”).) Furthermore, if every time the ESA uses the terms “local emergency” and “state of emergency” there was an additional element of a “duly declared” emergency, many provisions of the ESA would be non-sensical or a nullity. For instance, under Plaintiffs’ interpretation, the section relating to the preservation of state and local government destroyed by an emergency would only apply if the public officials before being lost or killed duly declared an emergency. (See Gov. Code, § 8635.) The first meeting where a local body could declare an emergency would have to occur after that body met and declared that emergency. (See Gov. Code, § 8642.) The Governor could not make expenditures to deal with “threatened conditions” of a local emergency (Gov. Code, § 8645) because a local emergency must exist before it may be declared (Gov. Code, § 8630). Whatever the meaning of “local emergency” in Section 8558(c), it does not reflect the Legislature’s intent to make a “duly declared” emergency elemental to every provision of the ESA using this term. If the Legislature had intended this element, it would have said so as it did in Section 8657.5. Finally, the Court may consider the consequences of Plaintiffs” additional element, including its impact on public policy. (E.g., Martinez v. Combs (2010) 49 Cal.4th 35, 51.) The Sixth District explained this immunity exists because the government “must be able to act with speed and confidence without fear of incurring tort liability.” (Farmers Ins. Exchange v. State of California (1985) 175 Cal.App.3d 494, 505.) If Plaintiffs were correct, the statute would inhibit rather than promote quick response by requiring agencies to convene their governing bodies for a vote before responding. This would be particularly debilitating in suddenly occurring emergencies, such as earthquakes, fires, and terrorism. In such instances, the delay could lead to expansion of the threat and the emergency itself might compromise the governing body or City Hall. The Legislature could not have intended a declaration of emergency to be so critical that it would condition immunity upon it. Indeed, this requirement is fundamentally inconsistent with the immunity’s purpose, which was to promote immediate action. mn 3 REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT Lead Case No: 18CV325287 CITY OF SAN JOSE’S DEMURRER 1561557 doc -_ N N RN NN RN N N N N Q O oa a =a ea l w h w h e h w l eh 0 ~N O O Oa BA W N = O © 0 ~N O O ga A W O N = © © ® ~N OO Oo A Ww N In Thousand Trails, Inc. v. California Reclamation Dist. No. 17 (2004) 124 Cal.App.4th 450, plaintiffs attempted to limit the immunity in Section 8655 by the flood district’s failure to prepare an emergency action plan, which is contemplated by Section 8589.5. (Id. at 459.) Similarly, Plaintiffs here attempt to limit the same immunity because other provisions of the ESA contemplate the declaration of an emergency. The Third District rejected this similar attempt to use other directory provisions of the ESA to limit the broad and absolute immunity provided in Section 8655. The Third District concluded this limitation “inimical to the purpose of the Act: to allow decision makers to act quickly during emergencies to protect the public.” (Jd.) The same conclusion applies here. The Legislature in creating this immunity meant to promote swift action, not place procedural barriers to that action. B. THE CITY IS IMMUNE FOR ITS DISCRETIONARY ACTS. Besides the absolute immunity provided under Government Code section 8655, the City also demurred based upon its immunity for discretionary acts under Government Code section 820.2. After the California Supreme Court’s decision in Johnson v. State (1968) 69 Cal.2d 782, this immunity applies where the acts complained of relate to the public entity’s “basic policy decisions” such that judicial second-guessing would interfere with decisions committed to a coordinate branch of government. (Connelly v. State of California (1970) 3 Cal. App.3d 744, 750.) Appling this principle in relation to warning about rising flood waters, Connelly held that a statement about how much the water would rise was not a policy decision, but the decision to issue a warning at all was shielded by discretionary immunity. (/d. at 751.) As each of the emergency related decisions Plaintiff complains of relate to a discretionary decision by the City, this is an additional basis to sustain the City’s demur to Plaintiff’s Second, Third, Fourth, Fifth, and Sixth Causes of Action. Plaintiffs’ only response is to attempt to differentiate the case law cited by the City. Plaintiffs cherry-pick and misrepresent the holding in Connelly upon remand. While the Court concluded the numerical information misrepresented in a flood warning was not discretionary (id. at 752), the Court also determined that issuing a warning at all was an immunized “policy-making function” (id. at 751). Plaintiffs next attempt to differentiate Odello Bros. v. County of Monterey (1998) 63 Cal.App.4th 778 because Plaintiffs are not claiming trespass and “none of Plaintiffs claims relate to any decisions by the City ... after the flooding commenced.” (Opp. 6:18-21.) But nothing in Government Code section 4 REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT Lead Case No: 18CV325287 CITY OF SAN JOSE’S DEMURRER 1561557 doc © 00 N N OO 0a A W N = _ o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 820.2 limit this immunity to emergency situations or to only trespass claims. Plaintiffs do not differentiate the City’s authorities or otherwise present any reason to prevent the Court from sustaining the City’s demurrer. C. PLAINTIFFS CANNOT STATE A NUISANCE CLAIM OUTSIDE OF THE EXCLUSIVE ELEMENTS OF GOVERNMENT CODE SECTION 835. Plaintiffs’ response to the City’s demurrer to their nuisance claim confuses the issue of immunity with the issues of preemption or exclusivity. Plaintiffs cite Nestle v. City of Santa Monica (1972) 6 Cal.3d 920 and its progeny for the proposition that nuisance may be plead against a public entity under Civil Code section 3479. Those decisions deal with the City’s immunity from non- statutory actions under Government Code section 815. Whatever the viability of nuisance actions generally, however, the Supreme Court subsequently held that when dealing with dangerous conditions of public property particularly, those causes of action must be plead under Government Code section 835 exclusively. This portion of the City’s demurrer is not based upon immunity under Section 815, but the exclusivity or preemption rule later announced by the Court. After the decisions cited by Plaintiffs were published, the Supreme Court held that notwithstanding the availability of other more general statutory bases for action, a dangerous condition claim must be evaluated “under the provisions of Government Code section 835 alone.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1132.) This is because Government Code section 835 “sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829 (emphasis added).) In setting Government Code section 835s elements: [T]he Legislature took into account the special policy considerations affecting public entities in their development and control of public property and made a variety of policy judgments as to when a public entity should or should not be liable in monetary damages for injuries that may occur on public property. These policy judgments would be undermined if an injured person could ignore the limitations embodied in Government Code section 835 and invoke the very general provisions of section 1714 of the Civil Code to impose liability on a public entity in circumstances in which such liability would not be permitted under section 835. (Zelig, supra, 27 Cal.4th at 1132.) While Zelig dealt with Civil Code section 1714, its holding is equally applicable to Civil Code section 3479. (See Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 384 (“where the action is based on a claim of a defective condition of public 5 REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT Lead Case No: 18CV325287 CITY OF SAN JOSE’S DEMURRER T18A1887 Anan © 00 N N O O Oo hh O N = N N N D N N N D N N N N N ND PN a2 ama a aa ma aa a a aa a a = 0 ~N O O a DA W N 2 O © o N o O o h W N ~~ Oo property ... plaintiffs have no cause of action under a nuisance theory.”); accord Mikkelsen v. State of California (1976) 59 Cal.App.3d 621, 628).) As the gravamen of Plaintiffs’ claim is for a dangerous condition of public property, Plaintiffs may not avoid the Legislatures policy judgments and Government Code section 835s exclusive elements. D. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION FOR NEGLIGENCE. Plaintiffs fail to substantively respond to the City’s point that the agency-level negligence they complain of is not actionable under Government Code section 815.2. (Demurrer 10:18-11:17 (negligence).) Plaintiffs simply badly state that the acts they complain of are not “agency-level” negligence. (Opp. 7:24-26.) But when pressed to explain what they are complaining of, Plaintiffs simply states the negligence relates to the City’s management of its property and project and the City’s failure to issue warnings. (See Opp. 7:17-21.) Negligent management of property is exactly what the decision cited by the City held to be an “agency-level” assertion of negligence improperly plead under Government Code section 815.2. (See Hibbs v. Los Angeles County Flood Control Dist. (1967) 252 Cal. App.2d 166, 172-73.) Decisions to issue warnings, which might provoke a public panic, similarly are agency-level decisions. It is immaterial, as Plaintiffs argue, that a particular employ may eventually make these decisions (Opp. 7:24-26), as Hibbs expressly stated that its holding applied even if it assumed the entities chief executive officer had the authority to undertake the particular act complained of. (Hibbs, supra, 252 Cal.App.2d at 172.) Accordingly, Plaintiffs do not differentiate Hibbs or provide any reason overcoming this prong of the City’s demur. Additionally, as with Plaintiffs’ nuisance claim, the City demurred to these causes of action as improper under the exclusivity rule announced in Zelig. Plaintiffs make no response whatsoever to this point. If this ground for demurrer has merit, as with other motions, the Court should deem Plaintiffs’ non-opposition consent to sustaining the demurrer upon this ground. (See Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253, 257 (granting motion for summary judgment).) Finally, Plaintiffs attempt to differentiate the case law cited by the City showing that it has no duty to warn. Plaintiffs try to distinguish Davidson v. City of Westminster (1982) 32 Cal.3d 197 because that case dealt with “a claim of special relationship.” (Opp. 8:19-20.) That is exactly the point: through discussion of a trio of its prior decisions on public entity liability for failures to warn, the 6 REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT Lead Case No: 18CV325287 CITY OF SAN JOSE'S DEMURRER 1561557.doc oO © 00 ~N oO Oo bh O N = N N N N N D N D N N N N ND DN 2 ama ma aa mm a = aa a 0 N N O O O O A O W N 2 O © 00 N N O O Oo Bh O N = Supreme Court concludes there is no duty to warn absent a preexisting “special relationship.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203-204.) Plaintiffs have not plead a special relationship to the City, meaning there was no duty to warn. Plaintiffs claim Janssen v. Los Angeles County (1942) 50 Cal.App.2d 45 is inapplicable because it predates the Claims Act. (Opp. 8:21-23.) That is immaterial because the Claims Act did not expand causes of actions against the City; it further constrained them. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129.) The passage of the Claims Act could only assist Janssens holding; Plaintiffs present no reason why that Act abrogates this holding. In relation to floods, the City has “no duty, legal or moral ... to come to the rescue of landowners,” let alone a special duty. (Janssen, supra, 50 Cal.App.2d at 56.) Plaintiffs cite Cameron v. State of California (1972) 7 Cal.3d 318 which is entirely inapplicable. As Plaintiffs acknowledge, Cameron’s discussion of failures to warn deals with design immunity. (Opp. 8:3-6; 9:1-2.) Design immunity is not raised in the City’s demurrer. Warnings are only relevant to design immunity because even when design immunity applies, a public entity may lose that immunity if plaintiffs show changed physical conditions. (E.g., Dammann v. Golden Gate Bridge, Highway & Transportation Dist. (2012) 212 Cal.App.4th 335, 349.) Even where changed physical conditions exist, the immunity will continue for a “reasonable period of time” provided the entity “shall reasonably attempt to provide adequate warnings.” (Gov. Code, § 830.6.) As this demurrer does not involve design immunity let alone a change in physical conditions, the warning element in Government Code section 830.6 does not apply and Cameron is entirely irrelevant. E. PLAINTIFFS MUST IDENTIFY, WITH PARTICULARITY, THE DANGEROUS CONDITION OF PUBLIC PROPERTY. Plaintiffs concede as to their Second Cause of Action for inverse condemnation that it is insufficiently specific as to the public project at issue. (Opp. 11:5-16.) But as to Plaintiffs further demurrer as to other causes of action, Plaintiffs contend they are factually specific. It is not enough for Plaintiffs to allege that all of the City’s property was in a dangerous condition, yet that is essentially what they do in their Second and Sixth Causes of Action. They reference the “63 miles” of Coyote Creek watershed and then subtract that which is City property and call it dangerous. (Opp. 11:17-26.) While the City might know what property it owns along Coyote 7 REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT Lead Case No: 18CV325287 CITY OF SAN JOSE’S DEMURRER 1561557.doc © 0 N N O O Oa A W O N = N N O N N N N D N N N D N M DN 2 =a =a a a a a a a a; 0 ~N O O Og bh W N 2 O O © 00 N O O o h W N ~~ Oo Creek, Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612 is inapplicable because the City does not know what of that property Plaintiffs are complaining about and should not have to guess at this fact in discovery. Plaintiffs’ insistence they are “particularly” concerned about certain property (Opp. 12:1- 10) is unhelpful because of their refusal to limit the FAC to this property. Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434 and similar cases require heightened factual pleading against the City. But Plaintiffs continue to refuse to particularly identify in the FAC what property is dangerous. This is tantamount to alleging that a dangerous condition of sidewalk somewhere in San José caused someone to trip and fall without identifying the location of the hazard, its condition, or why it is defective. It is Plaintiffs’ burden, not the City’s, to identify in the FAC the particular defect and where it is located. Instead, Plaintiffs ask the Court to sanction a fishing expedition. III. ~~ CONCLUSION The City respectfully requests the Court sustain its demurrer to the First, Second, Third, and Fourth Causes of Action without leave to amend, or in the alternative, sustain its special demurrer for uncertainty to the First, Second, Third, and Fourth Causes of Action by requiring Plaintiffs to specifically identify the parcels of Coyote Creek at issue. Respectfully submitted, Dated: October 15, 2018 = DOYLE, City Attorney fe CREECH Sit Attorney Attorneys for Defendant, CITY OF SAN JOSE 8 REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT Lead Case No: 18CV325287 CITY OF SAN JOSE’S DEMURRER 1561557.doc © 00 N N OO Oo Hh Ww N N = N N N N MN N N DN DN ND DN DN DM D DMN = e d oe md o e d e d w d w d w d w d w b 0 ~N O O a0 A O W N 2 O O © 0 N O oa dA O N ~~ O Electronically filed by Superior Court of CA, County of Santa Clara, on 10/15/2018 4:55 PM Reviewed By:R. Walker Case #18CV 325287 PROOF F SERVICE [45059118 CASENAME: DONALD LIEBERMAN, et al. v. SANTA CLARA VALLEY WATER, et al. CASE NOS.: 18CV325287 (LEAD), 18CV325283, 18CV325285, 18CV325282, 18CV325346, 18CV325289 I, the undersigned declare as follows: I am over 18 years of age and not a party to this action. My business address is 200 East Santa Clara Street, San Jose, California 95113-1905, and is located in the county where the service described below occurred. On October 15, 2018, I caused to be served the within: REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT CITY OF SAN JOSE’S DEMURRER XI by ELECTRONIC TRANSMISSION, through approved electronic service provider One Legal, with a copy of this declaration, to an electronic address listed below. Addressed as follows: Jeffrey B. Hare Attorney for Plaintiffs JEFFREY B. HARE, APC 501 Stockton Avenue San Jose, CA 95126 Tel: (408) 279-3555 Email: jeff@jeffreyhare.com Jeffrey F. Oneal, Esq. Attorney for Defendant, RANKIN | STOCK | HEABERLIN | ONEAL SANTA CLARA VALLEY WATER DISTRICT 96 No. Third Street, Suite 500 San Jose, CA 95112 Tel: 408-293-0463 Email: jeffrey@rankinstock.com Melissa Kiniyalocts, Esq. Attorney for Defendant, OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA County of Santa Clara 70 W. Hedding Street East Wing, 9% Flr. San Jose, CA 95110 Tel: (408) 299-5937 Email: Melissa.kiniyalocts@cco.sccgov.org 9 REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT Lead Case No: 18CV325287 CITY OF SAN JOSE’S DEMURRER 1561557.doc © 00 N N OO Oo Hh W N = N N DN N N D N D N N D DN DMD DN D A m d m md md dd a o a 0 ~N O O ga bDhA W N = O O © 00 N N oO o h , W O N =~ OO Amy W. Lo, Esq. Attorney for Defendants, OFC ATTORNEY GENERAL CALIFORNIA DEPARTMENT OF WATER 455 Golden Gate Avenue, Suite 11000, RESOURCES (DWR) AND DIVISION OF SAFETY San Francisco, CA 94102-7004 OF DAMS (DSOD) Tel: (415) 510-3482 Email: Amy.Lo@doj.ca.gov I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 15, 2018, at San 7 iforni Kathérine Walters = 10 REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT Lead Case No: 18CV325287 CITY OF SAN JOSE’S DEMURRER 1561557 doc