LOS ANGELES, CITY OF v. COUNTY OF KERN

Respondents’ Answer to Petition for Review

Cal.May 13, 2013

No. $210150 (Court of Appeal Case No. F063381) (Tulare County Superior Ct. No. VCU242057) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA City of Los Angeles, ef al., oe SUPREME COURTPlaintiffs and Respondents Vv. FILED County of Kern and Kern County Board of Supervisors Defendants and Appellants MAY 13 2013 Frank A. McGuire Clerk ANSWER TO PETITION FOR REVIEW Deputy CARMEN A. TRUTANICH(No. 86629) — Michael J. Lampe (SBN 821 99) City Attorney Michael P. Smith (SBN 206927) VALERIE FLORES(No. 138572) ManagingAssistant City Attorney LAW OFEICES OF MICHABLJ. EDWARDM. JORDAN(No.180390) LAMPE Assistant City Attorney __ 108 W. Center Avenue CITY OF LOS ANGELES Visalia, California 93291 - 1800 City Hall, 200 N. Main Street Telephone: (559) 738-5975 ~—~Los Angeles, CA 90012-4110 Facsimile: (559) 738-5644 Telephone: (213) 978-8100 Facsimile: (213) 978-8211 Email: ted.jordan@lacity.org Email: mjl@lampe-law.com Attorneysfor Plaintiffand RespondentCity ofLos Angeles Gary J. Smith (No. 141393) Zachary M.Norris (No. 268616) BEVERIDGE & DIAMOND,P.C. 456 MontgomeryStreet, Suite 1800 San Francisco, CA 94104-1251 Telephone: (415) 262-4000 Facsimile: (415) 262-4040 Email: gsmith@bdlaw.com znorris@bdlaw.com Attorneysfor Plaintiffs and Respondents City ofLos Angeles, Responsible Biosolids Management, Inc., R&G Fanucchi, Inc., and Sierra Tiransport, Inc. [See signature pages for other parties and counsel.] No. 8210150 (Court of Appeal Case No. F063381) (Tulare County Superior Ct. No. VCU242057) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA City of Los Angeles,et al., Plaintiffs and Respondents V. County of Kern and Kern County Board of Supervisors Defendants and Appellants ANSWERTO PETITION FOR REVIEW CARMENA. TRUTANICH(No. 86629) MichaelJ. Lampe (SBN 82199)City Attorney Michael P. Smith (SBN 206927)VALERIE FLORES(No.138572) LAW OFFICES OF MICHAELJ.ManagingAssistant City Attorney EDWARDM.JORDAN(No.180390) LAMPE Assistant City Attorney 108 W. Center Avenue CITY OF LOS ANGELES Visalia, California 93291 1800 City Hall, 200 N. Main Street Telephone: (559) 738-5975Los Angeles, CA 90012-4110 Facsimile: (559) 738-5644Telephone: (213) 978-8100 Facsimile: (213) 978-8211 Email: ted.jordan@lacity.org Email: mjl@lampe-law.com AttorneysforPlaintiffand RespondentCity ofLos Angeles Gary J. Smith (No. 141393) Zachary M.Norris (No. 268616) BEVERIDGE & DIAMOND,P.C. 456 MontgomeryStreet, Suite 1800 San Francisco, CA 94104-1251 Telephone: (415) 262-4000 Facsimile: (415) 262-4040 Email: gsmith@bdlaw.com znorris@bdlaw.com Attorneysfor Plaintiffs and Respondents City ofLos Angeles, Responsible Biosolids Management, Inc., R&G Fanucchi, Inc., and Sierra T;ransport, Inc. [See signature pages for other parties and counsel.] TABLE OF CONTENTS Page INTRODUCTION..0....ccsessccessesccsssseesssseees weeneeteateesaeeesseesenessseeeeesseessceensnecaues ] STATEMENTOF FACTS rtseeseeeeseeeeneseeeereatscstisacsesesesecacsesseeesetacssarasasaces 2 REASONS FOR DENYING REVIEW 0oc.cccscsssssssssssssssssssssssssseseeeeeeeeecccc. 2 I. II. HI. REVIEW IS NOT NECESSARY TO SECURE UNIFORMITY OF DECISION OR TO SETTLE AN IMPORTANT QUESTION OF LAW REGARDING THE TIMELINESS OF RESPONDENTS’ CLAIMS ee A. Case Law Interpreting 28 U.S.C. § 1367(d) Has evens 5 Trended Toward Its Plain Text and theSuspension APPPOAChoes eeceeesesessessessesscssssatsratsssscsseseeceecec., B. Interpretation of 28 U.S.C. § 1367(d) Does Not Present an Important Unsettled Question of Law. seeeaee 5 eteeee 7 C. Kern’s Petition Should Be Denied BecauseIt Is Not Dispositive of the Timeliness of Respondents’ CaM. 0... se eceeeestesesstesecsssssstsetersusasseseserseseeseececc, THE COURT OF APPEAL’S CONCLUSION THAT RESPONDENTS ARE LIKELY TO SUCCEED ON THEIR REGIONAL WELFARE CLAIM DOES NOTRAISE A CONFLICT OR AN IMPORTANT UNSETTLED QUESTION OF LAW. coccccccccsssccccoseecs... THE COURT OF APPEAL’S CONCLUSION THAT RESPONDENTSARE LIKELY TO SUCCEED ON THEIR PREEMPTION CLAIM DOES NOTRAISE A CONFLICT OR AN IMPORTANT UNSETTLED QUESTION OF LAW.wo ceccccccccssseessesstessesssseseecenseeeeecccc beets 10 beets 10 seve 13 TV. CONCLUSION...eeeesssssssssssssssssssusssssssisessssitesseeteeseeesccc 20 TABLE OF AUTHORITIES Page CASES Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) .ecsesesstnnstntniennststinnistetanunusittiecc 8 Arnel Development Co. v. Costa Mesa, 126 Cal. App. 3d 330 (1981) eesscssrsstentssietusttissiinttississutetesec 11 Associated Home Builders ofthe Greater Eastbay, Inc. v. City ofLivermore, 18 Cal. 3d 582 (1976) .scsscsossssinetnssstecissistintisatiassseneeeec 11, 13 Berke v. Buckley Broadcasting Corp., 821 A.2d 118 (NJ. Super. Ct. App. Div. (2003) oo. eeeccessesessecsesasesssveeeseeece 6 Blue Circle Cement, Inc. v. Bd. ofCnty. Comm'rs, 27 F.3d 1499 (10th Cir. L994) oe eccssetessssscsesstteesesssseessesttetessissssesseeesss.. 17, 18 Bonifield v. Cnty. ofNevada, 94 Cal. App. 4th 298 (2001).eteseseesesesecseeeaenscacenieas sasseneeaesesseseeeeusens 6 Brown v. Texas, 922 US. 940 (1997) ...rrecscnssisssinintatisninieistianaiutiiiiieeec. 7 City ofAlhambra v. P.J.B. Disposal Co., 61 Cal. App. 4th 136 (1998)... ecsssesesntsssstnsistinetinsiassstetieeec 16 City ofLos Angeles v. Cnty. ofKern, 462 F. Supp. 2d 1105 (C.D.Cal. 2006) oo eeseeecseessesseeseesssssesseeaestessssssstseeseesccc, 15 City ofLos Angelesy, Cnty. ofKern, 909 F. Supp. 2d 865 (C.D. Cal. 2007) coesccccscsssssssteesssesssseeeeeecc 15, 18 City ofLos Angelesv. Cnty. ofKern, |581 F.3d 841 9" Cir. 2009) oo...ssesessesuesseessseatesesstsusstssasasseseecesessc, 15 City ofLos Angelesv. Cnty. ofKern, No. 06-5094, 2006 U.S. Dist. LEXIS 81417 (C.D.Cal. 2006) oeecccceeseesees 15 Conn. Nat’! Bank v. Germain, 903 U.S. 249 (1992)... rccscsssssessietinstisenntssireiniusttinatiaistesiieeccc 8 Goodmanv. Best Buy, 27 Cal. 4th 853 (2002) oooeecccecccsccecccceeeeccecc..se etseeteeesesesscseescesseavecsarsctatsnsesees 17 Great Western Shows, Inc.v. Cnty. ofLos Angeles, 777 N.W.2d 755 (Minn. 2010) oeescessssssssssssstisessssssssssesstisesssstesseseseeeeecccc. 6, 18 In re Vertrue Mktg. and Sales Practices Litig., 712 F. Supp. 2d 703 (N.D. Ohio 2010) wees eeseeccsessessessstssessscsesecesessen. 6, 7,9 il Int’l Bd. ofElec. Workersy. City ofGridley, 34 Cal. 3d 19] (1983) o.oo csssneesssssssusssssissstunsstusssssssteesseeeec 17 IT Corp. v. Cnty. ofImperial. 35 Cal. 3d 63 (1983).....ccccecseusssnssssesssstsssssissstiastusssstsstieesteeeecc 4 Huang v. Ziko, 511 S.E. 2d 305 (N.C. Ct. App. 1999) ooo eccecsecssessssecsseessesstessstessecssesesesceseese 6 Kolani v. Gluska, 64 Cal. App. 4th 402 (1998)... sssssssssusssuusssinntsssiasssieseeeeeeec 6 Lee v. City ofMonterey Park, 173 Cal. App. 3d 798 (1985)... .cssssssssssssusssssssuenssesiasesssiatieseeeseeccc. 11 Reiter v. Sonotone Cor es 442 U.S. 330 (1979) .cecsssssessssessisetisseessessennsssiinastinsitivasseseeeeeeeeec 8 Riverside v. Inland Empire Patient’s Health & Wellness Center,Inc., et al., No. $19863835 (Cal. May6, 2013) oes ecceccesessessesssssssrssrsssseerecsssesercess. passim Rodeo Sanitary District v. Board ofSupervisors, TI Cal. App. 4th 1443 (1999) oo.sessssssssssucsssssessssessesseuusaseestseeeeeeeecec 16 Smith v. Cnty. ofL.A., 211 Cal. App. 3d 188 (1989) .....ccccsssssssssssssssssssssssnnssssssteesesssesuesssseseeeeecc. 11 Sherwin-Williams Co. v. City ofLos Angeles, 4 Cal. 4th 893 (1993) .oo.sccessssnseeesnncssnsessssssuussssssuuasssssiisteeeeeccc. 17 Turner v. Kight, 957 A.2d 984 (Md. 2008) oseeseeeeeettieeecssnneesesesseesssssse wedeseeseseeeteestessessonseas 7 Valley Vista Servs., Inc. y. C.ity ofMonterey Park, 118 Cal. App. 4th 881 (2004) oocicccesssssssssssssssssessssssissesstsseesee 16 Waste Reserve Techs. v. Department ofPublic Health, 23 Cal. App. 4th 299 (1994) o.oo. essesscssessssssssssssestsusnsssessstitteeececc 16 Zhang Gui Juanv. Commonwealth, No. 99-032, 2001 WL 34883536 (N.M.I. Nov. 19, 2001) voeeeccccccsccccceecosee. 6 Zuni Pub. Sch. Dist. No. 89 v. Dep’t ofEduc., 950 U.S. 81 (2007) .eeessesssenssssnstenertsnsssssnssessssisartenassensuasititeseeeeecccc. 8 STATUTES 28 U.S.C. §1367(d) .sescssecsesssssersssssssssusssssssssssssstsessussssssivsiutieeeeeseecccc passimCal. Civ. Proc. Code § 355 ....-sscssssssstssessssiunnccc 10IWMA§ 40059 ......ssesessesssseessstitinnttesnussissetiiinnne passimPub. Res. Code, § 40051 ....ececsssssuntnsteennsiuninces 19 ill Pub. Res. Code, § 40052 Tirttsteeenencseeseseceeneesesesssesereassessessstetsacsessussesstsesseeverececccs, 19Pub. Res. Code, § 40053... cucucssnetnintiitincnnecccty 15,17 CONSTITUTIONAL PROVISIONS Cal. Const., art. XL, § Tessescssssetsssettssssssssssettnsstnsssitassttasassiuesseeecc 17 OTHER AUTHORITIES Jon B. Eisenberg, Ellis J. Horvits & Justice Howard B. Wiener(Ret.), California Practice Guide: Civil Appeals and Writs,(2012) erctetntenennnntntniteninenintatieninnitiiiiicce sec 3,7 iv INTRODUCTION The Court of Appeal’s unanimous opinion properly upheld a preliminary injunction against enforcementof a voter initiative named Measure E, Kern County’s ban on Respondents’ recycling of biosolids on farmland in the County. In doing so, the Court of Appeal becamethethird court, joining the trial court and a federaldistrict court, to independently conclude on broad-basedlegal and factual groundsthat an injunction against Measure E was appropriate. Kern’s petition for review offers no compelling reason for this Court to review, let alonereverse, the Court of Appeal’s interlocutory opinion upholding the latest of three separate injunctions that have been in place sinceshortly after the passage of Measure E in 2006. The Court of Appeal simply acknowledgedthe one-sided balance of harmsfavoring an injunction,interpreted the plain text of a federal and a state statute, and applied a well-established California constitutional law principle to the present facts. Kern identifiesneither an important conflict in authority for this Court to resolve nor any unsettled major question of law requiringthis Court’s review. See Cal. R. Ct. 8.500(b)(1). Instead, Kern’s petition repeats the merits arguments and authorities that have been considered and uniformly rejected by the Court ofAppeal and the state andfederaltrial courts. Kern’s disagreement with the Court of Appealandits desire to reiterate its arguments before this Court are not groundsto grant review. Moreover,all questions of fact and law were correctly decided below. Respondents’ claimsare timely, not only underthe “natural interpretation”of the federal supplementaljurisdiction statute, 28 U.S.C. § 1367(d) (Slip Op.at 18), but also on other groundsthat the Court of Appeal did not need to reach. The opinion also correctly found that Measure E unconstitutionally exceeds Kern’s police power becauseit damages Southland public agencies and makes no accommodation of the regional welfare. Finally, the statewide recycling mandate underthe Integrated Waste ManagementAct (“TWMA”) preempts Measure E’s conflicting ban on such recycling despite Kern’s attempts to narrow that statute. Kern’s petition should be denied. STATEMENTOF FACTS The Court of Appeal set forth a comprehensive and accurate statement offacts in its opinion, which this Court should accept consistent with Cal. R. Ct. 8.500(c)(2). Slip. Op. at 4-16. In sum, Respondents are Southland local governments, contractors, and a statewide association engagedin the constant and nondiscretionary governmental obligation to collect, treat, and recycle biosolids, the nutrient-rich, organic byproduct of municipal wastewatertreatment. Id. at 7-8. The predominant form of biosolids recycling in California and nationwideis land application to farmland. Jd. at 4. Respondents are challenging Measure E,a ballot measure passed by Kern County voters that bans Respondents’ longstanding andsafe land application in sparsely populated areas ofthe County but does not affect ongoing land application withinthecities in the County where mostofthose voters reside. /d. at 8-10. Respondents presented detailed testimony and analysis from numerous experts that land application of biosolids in Kern Countyposeslittle risk and provides significant benefits, and both thetrial court and the Court of Appeal reviewed this evidence and agreed. See generally Respondents’ Appendix. REASONS FOR DENYING REVIEW This Court mayorder review of a Court of Appeal decision “[w]hen necessary to secure uniformity ofdecision orto settle an important question of law.” Cal. R. Ct. 8.500(b)(1).! Otherwise, “[t]he supreme court’s focus is not on correction of error by the court of appeal in a specific case.” Jon B. Eisenberg, Ellis J. Horvits & Justice Howard B. Wiener (Ret.), California Practice Guide: Civil Appeals and Writs, § 13:1, at 13-1 (2012) (citing People v. Davis, 147 Cal. 346, 348 (1905)). This standard has been the law for over a century. Kern’s petition does not showthatthis case meetsthecriteria for securing uniformity or legal importance. There are no conflicting decisions on the substantiveissues in the case — Kern identifies no contrary [WMA or police powercase law. Thestale conflict over a federaltolling statute presented by a Court of Appeal decision fifteen years ago and nowin the minority does not merit review by this Court. Federal case law and recent decisions in other jurisdictions agree with the interpretation of 28 U.S.C. § 1367(d) adoptedby the courts below. Further, the Court ofAppealissued straightforward and unremarkable findings on Respondents’likelihood of success on their police power and IWMA claims, leaving no unsettled importantlegal issue for this Court’s review. Thus, Kern isleft only with its merits arguments, which identify no points or authorities unaddressed by the Court ofAppeal, and alone cannot justify this Court granting a petition for review.” In addition, the posture ofthis case favors denial of Kern’s petition. While this Court has authority to review interlocutory orders under Cal. R. ' The otherthree grounds for review are inapplicable and Kern’s petitiondoes notcontend otherwise. Cal. R. Ct. 8.500(b)(2)-(4). 2 Respondents do not concur with Kern’s “Issues Presented,” whichcontravene this Court’s requirementfor a “concise, nonargumentativestatementofthe issues presented for review” by assumingthe conclusionsofKern’s merits arguments below. Petition (“Pet.”) at 1: Cal. R. Ct.8.504(b)(1). The only issue before the Court at this point is whether reviewof the Court ofAppeal’s affirmance of the preliminary injunction againstenforcement ofMeasure E is “necessary to secure uniformity of decision orto settle an important question of law.” Cal. R. Ct. 8.500(b)(1). Ct. 8.500(a)(1), the case would comebefore this Court on Kern’s appeal of a preliminary injunction decision that was based on twoalternative grounds. The finality of the proceedings and judgmentbelowthatis the hallmark of most appellate review is absent here, and the case would have to return to the Superior Court regardless of the Court’s decision. Moreover, review ofthe preliminary injunction is unwarranted becausethe injunction simply maintains the decades-long status quo of land application of biosolids in Kern County; Kern does not contest on appeal the finding that the practice is safe and beneficial. As this Court has held, “[t]he ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm whichan erroneous interim decision may cause.” JT Corp.v. Cnty. ofImperial, 35 Cal. 3d 63, 73 (1983). Kern on appeal alleges no such interim harm. Kern’s failure to demonstrate harm to its own interests from continued land application renders it even more unlikely that, evenifits petition were granted, Kern couldsatisfy its burden to prove the abuseof discretion necessary to overturn the preliminary injunction. Slip Op. at 3, 16-17; JT Corp, 35 Cal. 3d at 69 (“A trial court will be foundto have abusedits discretion only whenit has exceeded the boundsofreason or contravened the uncontradicted evidence.”) (internalcitations and quotations omitted). In sum, nothing forecloses Kern frompetitioning this Court for review on any underlying rulings on appealofa final judgment, and the Court should not favorthis petition for a review of a preliminary injunction over the many petitions for review offinal judgments. // HM H I. REVIEW IS NOT NECESSARY TO SECURE UNIFORMITY OF DECISION OR TO SETTLE AN IMPORTANT QUESTION OF LAW REGARDING THE TIMELINESS OF RESPONDENTS’ CLAIMS. A. Case Law Interpreting 28 U.S.C. § 1367(d) Has Trended TowardIts Plain Text and the Suspension Approach. Kern’s petition asks this Court to resolve a conflict among California’s appellate districts and a “nationalsplit” interpreting 28 U.S.C. § 1367(d). Kern mischaracterizes the state of the law. The one federal case on point, the two decisions by the highest courts of other states, and the most recent prior Court ofAppeal decision all embracetheinterpretation of § 1367(d) adopted by the courts below. Any conflict posed byonefifteen- year-old Court of Appeal decision that adopted a contrary view of a federal statute and has become anoutlier does not justify review by this Court. Section 1367(d) provides that “[t]he period oflimitations for any claim asserted under[federal supplementaljurisdiction] ... shall be tolled while the [federal] claim is pending and for a period of 30 daysafterit is dismissed.” Respondents timely refiled their action in state court with, at most, 102 days ofthe three-yearstatute of limitations period having run. Decisionsinterpreting Section 1367(d) have moved towards uniform application ofthe statute’s plain text to suspend the runningofthe statute of limitations while the state claimsare in federal court, the approach adopted by the Court of Appeal here. Underthis “suspension approach,”the state statute oflimitations stops running while the claim is pendingin federal court and for 30 days after it is dismissed, and begins running again after that period expires. Slip. Op. at 18-19. Kern advocates a different “extension approach”based on policy grounds divorced from the statutory language. Under Kern’s outdated view, Section 1367(d) has meaning only in cases whenthestate statute of limitations “expires” during the pendency of the federal claim (despite thatit is “tolled” during this period), and in that instance thestate limitations period is replaced by a new 30-day limitations period after the federal case is dismissed. Jd.; Pet. at 11. The trend, in California and in federal courts and state supreme courts aroundthe country, is to adhereto the statute’s plain language and the suspension approach. This displaces the earlier cases adopting the policy-driven extension approach to Section 1367(d) advocated by Kern. Kern’s petition relies on three state cases (and one unpublished case from the Mariana Islands) no morerecent than 2003, and none from a state’s highest court. Pet. at 3, Kolani v. Gluska, 64 Cal. App. 4th 402, 410-411 (1998); Huang v. Ziko, 511 S.E. 2d 305, 308 (N.C. Ct. App. 1999)(relying on “the policy in favor of promptprosecution oflegal claims” in adopting extension approach); Berke v. Buckley Broadcasting Corp., 821 A.2d 118, 123 (N.J. Super. Ct. App. Div. 2003) (despite the statutory language, “we do notbelieve that the federal statute intends a result that would permit a gross protraction of the limitations period”); Zhang Gui Juan v. Commonwealth, No. 99-032, 2001 WL 34883536 (N.MLI. Nov. 19, 2001). By contrast, more recent cases have foundthat Section 1367(d)is amenable to only the single interpretation reflected in its plain text. The Court ofAppeal specifically considered and refuted Kolani in a decision just three years later and in the decision below, and Kolani has not been favorably cited since on Section 1367(d) grounds. Slip Op.at 17-21 (adopting the “natural interpretation” of § 1367(d)); Bonifield v. Cnty. of Nevada, 94 Cal. App. 4th 298, 303-04 (2001) (“Tolling may be analogized to a clock that is stopped and then restarted. Whateverperiod oftimethat remained whenthe clock is stopped is available whenthe clockis restarted, that is, when thetolling period has ended.”) (internal citation omitted). Also instructive, the only federal court to squarely interpret this federal law has upheld its plain language, as the Court of Appeal did here. In re Vertrue Mktg. and Sales Practices Litig., 712 F. Supp. 2d 703, 724 (N.D. Ohio 2010) (“the only reading . . . that gives meaningtoall of the words chosen by Congress”is the plain text approach). The highest courts of two states have reached the sameresult. Goodmanv. Best Buy, 777 N.W.2d 755, 760 (Minn. 2010) (extension approach “creat[es] ambiguity where none exists by reading missing words or conditionsinto the statute”); Turner v. Kight, 957 A.2d 984, 992 (Md. 2008)(following Bonifield after textual analysis).° The case law in California has naturally moved toward theplain text approachthat suspendsthe runningofthe statute. The legacy of one conflicting opinion regarding the meaning ofa federal statute does not merit review by this Court, particularly in the context of an appealof a preliminary injunction. Rather, the Court shouldlet this trend continue to develop and percolate throughthe courts. See Eisenberg, Horvits & Wiener, supra, § 13:73.1, at 13-19 (“Sometimes the supremecourt will wait for an issue to be debated thoroughly—or ‘percolate’—in the courts of appeal before review is granted”); Brown v. Texas, 522 U.S. 940, 943 (1997) (Stevens, J., on denialof certiorari) (“{T]helikelihoodthat the issue will be resolved correctly may increaseif this Court allows othertribunals to serve as laboratories in which the issue receives further study beforeit is addressed by this Court.”). B. Interpretation of 28 U.S.C. § 1367(d) Does Not Present an Important Unsettled Question of Law. Petitioners assert that the Court of Appeal was“incorrect” in concluding that the suspension approachis the “best reading” of the statutory language. Pet. at 13. But Kern’s disagreement with the Court of Appeal and desire for another level of appeal cannot force this Court’s review. See Davis, 147 Cal. at 350 (“The state has doneits full duty in providing appellate relief for its citizens whenit has provided one court to * Kern miscites Goodman and Turner as lower appellate cases. Pet.atiii, 3. which an appeal maybetakenas of right. There is no abstract or inherent right in every citizen to take every case to the highest court.”) In any event, the strength and simplicity of the Court of Appeal’s opinion underscores that further appellate review ofthis issue is unnecessary. It is well settled that, when analyzing a federal statute, a court must “presume that [Congress] says in a statute what it means and meansin a statute what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-254 (1992). “[I]f the intent of Congress is clear and unambiguously expressed by the statutory language,” further analysis is unnecessary. Zuni Pub. Sch. Dist. No. 89 v. Dep’t ofEduc., 550 U.S. 81, 93 (2007). Every wordofthe statute should be given effect. Reiter v. Sonotone Corp., 442 US. 330, 339 (1979). . As the Court of Appeal held, “the natural interpretation” of Section 1367(d) is that “the statute of limitations stops running while the claim is pending in federal court and for 30 daysafter it is dismissed; then the statute of limitations begins to run again from the point whereit left off.” Slip Op. at 18. Kern’s interpretation is “not equally plausible”; “[{i]f Congress had intended the rule Kern supports, it could have written that the ‘period oflimitations for any claim that would otherwise expire whileitis pending or during a period of 30 days afterit is dismissed shall be extended by 30 days from the time of dismissal,’ or something similar. It did not.” Slip Op. at 20. This federal statute has been interpreted the same way in federal court. In re Vertrue, 712 F. Supp. 2d at 724. Finally, the Court of Appeal considered and rejected the samepolicy considerations Kern proffers in its petition. Slip Op. at 21. The Court of Appeal discerned no ubiquitous rule favoring a shorter limitations period because giving defendants reposeis balanced by the goal that “meritorious claims can have their day in court.” Jd. As the U.S. Supreme Court has held in another context, suspendingthe limitations period “is in no way inconsistent with the functional operationof a statute oflimitations.” Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974)(finding “commencementofa class action suspends the applicable statute of limitations as to all asserted membersofthe class who would have been parties had the suit been permitted to continue as a class action”); see also In re Vertrue, 712 F. Supp. 2d at 724 (noting “the suspension approachis consistent with American Pipe”). The sameis true here;the time periodto ' prosecute claimsderives from the operation of the state statute of limitations, and Section 1367(d)’s suspension ofthat period while a claim is pending in federal court works no prejudice to the defendant because the federalfiling gives the defendantnotice that it also faces state law claims. Kern’s repeated hypotheticals of “excessive delays” caused by the Court of Appeal’s adherenceto the suspension approachalso ring hollow because they bear norelationship to the actual facts of this case, where Respondents’ conduct wasnotdilatory. See Pet. at 15. Respondentsfiled their original federal court action almost immediately after passage of Measure E. After the dismissal of the federal suit in November 2010, there was uncertainty regarding the status of Measure E. One weekafter receiving an enforcementnotice from Kern in January 2011, Respondents filed a new lawsuit in state court. Kern’s facile assertion that filing a new complaint in state court is “ministerial” (Pet. at 14) ignores therealities of litigation involving large public agencies and multiple parties, particularly in the uncommoncircumstances here where Respondentshadprevailed on the merits of multiple claims, were dismissed from federal court on unusual standing grounds,retained a successful federal claim to be decided anew in state court, and hopedfor resolution of the matter. Kern also identifies no prejudice it has suffered as a result of the Court of Appeal’s ruling, other than it must defend Measure E on the merits. C. Kern’s Petition Should Be Denied BecauseIt Is Not Dispositive of the Timeliness of Respondents’ Claims. EvenifKern’s petition presented a significant conflict or unsettled important question of law regarding the federaltolling statute, which it does not, this case does not serve as an appropriate vehicle for this Court’s review because the interpretation of 28 U.S.C. § 1367(d) is nota dispositive issue in this case. Kern’s petition omits other timeliness groundsraised by Respondents andbriefed bythe parties. See, e.g., 2 Appellants’ Appendix (“AA”) 392-95. Becausethetrial court overruled Kern’s demurrer based on Section 1367(d), and the Court of Appeal similarly rejected Kern’s Section 1367(d) argument whenraised on appealofthe preliminary injunction, there has been no occasion to decide Respondents’ argument that their claims are timely under Cal. Code Civ. Proc. § 355. In addition, neither court opined on Respondents’ argumentthat their claims accrued on January 19, 2011. On that date, Kern first stated its intent to enforce Measure E against Respondents by sendinga letter stating that Respondents “are now subject to the provisions of Measure E,” andthat Respondents had “six (6) months from the dateofthis letter to discontinue the land application ofbiosolids.” Slip Op. at 12;2 AA 413. This January 19 letter was an enforcementaction that caused Respondents’claims to accrue anew. Kern’s petition for interlocutory review should be denied because a ruling in Kern’s favor would not endthelitigation. Il. THE COURT OF APPEAL’S CONCLUSION THAT RESPONDENTS ARE LIKELY TO SUCCEED ON THEIR REGIONAL WELFARE CLAIM DOES NOT RAISE A CONFLICT OR AN IMPORTANT UNSETTLED QUESTION OF LAW. The Court of Appeal agreed with the trial court that, based on the extensive evidence of the one-sided damage Measure E wouldinflict on the 10 Southland’s wastewater infrastructure, Respondents were likely to succeed on their claim that Measure E exceeds Kern’s constitutional police power.. This fact-based ruling is not unusual and does not create a conflict, and therefore nofurther review is justified. The California Constitution requireslocalities to reasonably accommodate the regional welfare in exercising their police powers,or risk violating article XI, section 7 ofthe Constitution. See Slip Op.at 30-3 l, n.14. This Court held that the California Constitution limits the police powerof local governments by prohibiting local enactments that unreasonably burden regionalinterests beyondthe political boundaries of the locality. Associated Home Builders ofthe Greater Eastbay, Inc.v. City ofLivermore, 18 Cal. 3d 582, 604 (1976). “[I]f a restriction significantly affects residents of surrounding communities, the constitutionality of the restriction must be measuredbyits impactnot only upon the welfare of the enacting community, but upon the welfare ofthe surrounding region.” Jd. at 601. Whenpresented with such a question, a court must identify and weigh the competinginterests affected by the ordinance and inquire “whether the ordinance, in light of its probable impact, represents a reasonable accommodation”ofthose competing interests. Id. at 609. This is a mixed question of law and fact. Id. at 602 (issue is whether“it is fairly debatable that the restriction infact bearsa reasonable relation to the general welfare”) (emphasis added); id. at 609 (“There must be a reasonablebasis in fact, not in fancy, to support the legislative determination.”).‘ Here,both thetrial court and the Court ofAppealfoundthat Respondentsare likely to succeed on the merits of their regional welfare * The regional welfare doctrine is well-established in California law and hasbeen applied in multiple reported decisions. See, e.g, Smith v. Cnty. ofL.A., 211 Cal. App. 3d 188, 201 (1989); Lee v. City ofMonterey Park, 173Cal. App. 3d 798, 804-805 (1985); Arnel Dev. Co. v. Costa Mesa 126 Cal.App. 3d330, 337-340 (1981). 1] claim because “the evidence presented so far shows — undisputably for purposesofthis appeal — considerable hardship to waste-generating municipalities around the region if Measure E is enforced and nooffsetting hardship to Kern Countyifit is not enforced.” Slip Op. at 33 (emphasisin original). Kern’s petition does not contendthatthis holding rooted in a factual determination wasinaccurate.> For this reason alone, Kern’s petition cannot be granted. Moreover, Kern does notcite any case in conflict with the Court of Appeal’s ruling. Nor does Kern demonstrate how this mixed legal and factual ruling regarding Measure E presents an unsettled legal issue of broader importfor this Court’s review. Instead, Kern’s petition argues the merits of the police powerclaim. Specifically, Kern alleges that Measure E is somehow legislatively immune from the constitutional regional welfare doctrine, claiming the Court of Appeal’s decision “upsets the carefully crafted balance betweenstate and local responsibility that the Legislature adopted whenit adopted the [IWMA].” Pet. at 26. Kern ignoresthe regional welfare doctrine’s roots in the California Constitution, and offers no authority permitting a county ordinance to abrogate a constitutional principle and expandlocalpolice power. Becausetheprinciple in this case derives from the Constitution, Kern’s argumentthat “this caseis . . . analogousto the decision refusing to impose commonlaw duties at odds with a comprehensive schemeadopted by the Legislature” is misplaced. Pet. at 26 (emphasis added). Moreover, > For instance, Kern doesnotdisputethatthe effects of Measure E will befelt across the region, or that Measure E will drive up the costs ofRespondents’ biosolids management programsby millions of dollars eachyear — an increase which will affect business andresident ratepayers acrosssouthern California. See Respondents’ Appendix (“RA”) 101-02 (916-20),106 (37), 066-67 (934-39), 109 (92). Nor does Kern dispute Measure E’sadverse environmental impacts to the region becauseofincreased pollutionto transport biosolids to Arizona and the decline in soil quality in Kernwithoutbiosolids. RA 058 (411), 067 (936), 071 (948). 12 Kern employsthe incorrect premisethatthere is a “carefully crafted balance” between Measure E and the IWMA implicated in this case. Kern offers no evidencethat the legislature intended to displace the regional welfare doctrine with respect to solid waste management,let alonethatit successfully could do so. Indeed, Kern’s police power argumentrelies entirely on the merits of Kern’s view ofthe IWMA,which wasrejected by the courts below. Finally, as it did before the Court ofAppeal, Kern exaggerates the extent of the police power ruling. The gist of Kern’s argumentis that the courts below somehow imposed a duty upon Kernto accept Plaintiffs’ biosolids, and that this alleged duty is inconsistent with the IWMA. Pet. at 25. Neither thetrial court nor the Court of Appealissued such a ruling. As the Court of Appealaffirmed, “[t]he law, as interpreted by the superior court, does not ‘compel’ anyoneto ‘accept’ anyone’s biosolids. It lifts a local regulation that forbade landowners from willingly engaging ina farming practice they considered beneficial.” Slip Op. at 27 n.13. The only duty imposed by the regional welfare doctrine is consideration of and -reasonable accommodation of competing interests. See Livermore, 18 Cal. 3d 582 at 609. Kern did neither when enacting Measure E. No further clarification by this Court is needed. III. THE COURT OF APPEAL’S CONCLUSION THAT RESPONDENTSARE LIKELY TO SUCCEED ON THEIR PREEMPTION CLAIM DOES NOTRAISE A CONFLICT OR AN IMPORTANT UNSETTLED QUESTION OF LAW. The Court ofAppealaffirmed the preliminary injunction on the alternative groundthat “the superior court was correct whenit determined that plaintiffs likely will succeed on the merits oftheir CIWMA preemption claim.” Slip Op. at 30. Kern’s petition does notidentify any conflicting IWMA preemption case; indeed, each court to consider the issue with respect to Measure E hasreached the sameresult and found preemption. 13 Moreover, the Court of Appeal’s opinion applying established California preemption law principles to the IVWMA implicates no unsettled important issue of law. Kern’s petition again relies solely on merits arguments about the IMWAandpreemption generally. Kern relies on Respondents’ publication requests to the Court of Appealin an attempt to bolster the importance of the IVMA preemption issue. Pet. at 6, 17. But publication is not a groundforthis Court’s review. Kern conflates the separate standard for publication under Cal. R.Ct. 8.1105(c) and the narrowerstandard for review by this Court under Cal. R. Ct. 8.500(b). Thelatter providesthat this Court may order review ofa Court of Appeal decision “when necessary to secure uniformity of decision or to settle an importantquestion of law.” The former sets forth nine possible grounds for publication, some of which were cited in Respondents’ requests and do not matchcriteria for this Court’s review. Kern arguesthat Respondents’ letters demonstrate that the IWMA preemptionissue raises “a recurring question of great importance,” Pet. at 17, but “recurring”is absent from the Rule 8.500(b) standard for review. Regardless, that the Court of Appeal’s decision is important to Respondents and others and merits publication does not makeit a case of importanceto the development of California law on an unsettled issue so as to justify review by this Court. Equally unavailing is Kern’s argument for review based on anti- biosolids ordinancesin other jurisdictions that could be affected by the Court of Appeal’s decision. Pet, at 6-7, 17. At the outset, Kern’s petition contradicts itself, elsewhere claiming ‘“‘t is pure speculation whether additionaljurisdictions would enact similar ordinances if Measure E is | upheld.” Pet. at 21. Moreover, Kern’s recognition of otherlocalities’ similar police powersonly reinforces the Court ofAppeal’s reasoning and illustrates the “fiefdom”concern inimical to the IWMA.Slip Op.at 13 (“California does not consist of 58 separate fiefdoms,or ofthree or four 14 separate regions,all insular from each other.”) (citing trial court opinion “meriting reproduction at length”); id. at 25 n.12 (“In arguing that we should not worry aboutfuture ordinances of other jurisdictions, Kern County is askingusto giveit a special dispensationto exercise a power the law could not confer onall otherlocal governments consistently with the CIWMA.”). Althoughalleged error alone doesnot justify review, Kern contends that the “need for review is underscored by the fact that the Court of Appeal erred in finding preemption.” Pet. at 17. Kern has shownnoerror here. Kern repeats the same arguments against preemption that have been fully considered andrejected by three Separate courts — the federal district court (three times — on motion to dismiss, preliminary injunction, and summary Judgment), the Tulare County Superior Court (twice — on demurrer and preliminary injunction), and the Court ofAppeal.° For example, Kern again argues that Section 40051’s phrase “implementing this division” sharply limits “Section 40051’s mandateto ‘promote’ and ‘maximize’ recycling”and that Kern County wasnot “implementing the IWMA”whenit passed Measure E. Pet. at 17-18. The Court of Appealpointed out that Kern’s interpretation of that phrase “would not beconsistent with a statute that requiresall local governments to adhere to waste management plans in which recycling is maximized.” Slip Op.at 25. Kern’s petition offers no new evidence on whatthis purportedly “qualifying” phrase actually means, or howit operates to save 6 City ofLos Angeles v. Cnty. ofKern, No. 06-5094, 2006 U.S. Dist. LEXIS81417 (C.D. Cal. 2006) (denying motion to dismiss); City ofLos Angeles v.Cnty. OfKern, 462 F. Supp. 2d 1105, 1115-1122 (C.D. Cal. 2006) (grantingpreliminary injunction); City ofLos Angeles v. Cnty. ofKern, 509 F. Supp.2d 865, 888-902 (C.D. Cal. 2007) (grantingpartial summary judgment toPlaintiffs), rev’d on Standing grounds, 581 F.3d 841 (9th Cir. 2009); 3 AA674-86 (overruling demurrer); 3 AA 687-95 (granting preliminaryinjunction); Slip Op. at 24-30 (affirming order granting preliminaryinjunction). 15 Measure E. See Pet. at 4. The IWMA relies on local implementation ofits statewide recycling mandate;any local law affecting solid waste or recycling is implementing the IWMA,whichis why the IWMA forbids conflicting police power measures. Pub. Res. Code § 40053. Kern’s invented IWMA exception for any purported police power measure would expand Kern’s powers and swallow the IWMAstatewide recycling mandate.’ Similarly, Kern repeats its argument that IWMASection 40059 somehow saves Measure E from preemption. Pet. at 19. Prior court rulings considering this provision haveheld thatit is a savings clause that protects local regulation of trash hauling and garbagecollection franchises.* The Court of Appeal did not opine onthat point, but held that “[e]ven accepting for the sake of argument Kern County’s view that section 40059 has a more general scope, we do not considerit likely that the Legislature intended the wordsofthe statute to authorize local bans on major, widespread, comprehensively regulated methods of recycling.” Slip Op. at 30. The court’s determination of whatlocal authority is preserved under the IVMA consideredthe “entire statutory scheme” of the IWMA and reached the only plausible conclusion — Kern’s ban on California’s primary method of recycling thousandsoftons of sewage sludge daily poses a huge conflict ’ Indeed, Kern is attemptingto legislatively obtain such authority that it cannot hold under the existing IWMA. Kern’s representative in the California Assembly introduceda bill on March 19, 2013, that has.one urpose: to grant Kern County, and only Kern County, authority to banbiosolids land application within its borders. See AB 371, available at http://www.leginfo.ca.gov (last visited May10, 2013). 8 City ofLos Angeles, 509 F. Supp. 2d at 894-895 ; Rodeo Sanitary Dist. v.Bd. ofSupervisors, 71 Cal. App. 4th 1443, 1451 (1999); see also Valley Vista Servs., Inc. v. City ofMonterey Park, 118 Cal. App.4th 881, 890(2004) (surveying legislative history showing that Section 40059 concernsfranchises for garbagecollection); Waste Res. Techs. v. Dep’t ofPub. Health, 23 Cal. App. 4th 299, 302 (1994) (Section 40059 preserved city’spower“to grant an exclusive refuse collection permit”); City ofAlhambra v.P.J.B. Disposal Co., 61 Cal. App. 4th 136, 138-41 (1998) (Section 40059(a) allowedcity to issue exclusive franchise for trash hauling). 16 with the statute, and localities do not have any such authority to countermandstate law. Jd. Kern also contendsthat the Court of Appeal“failed to apply the usualtests for state law preemption and instead applied a novel federal standard that has never been thesolebasisfor state preemption.” Pet. at 22. This is incorrect. In its opinion, the court laid out the longstandingstate law preemptionprinciples, and then applied them. Slip Op. at 22-23 (citing the California Constitution and three leading preemption cases decided by this Court). The Court of Appeal began with the conflict preemption standard. See id. at 22 (setting forth constitutional requirement that local ordinances be “not in conflict with general laws” (citing Cal. Const., art. XI, § 7)); id. at 23 (“an ordinanceis ‘contradictory’ to general law whenit is inimical thereto”(citing Sherwin-Williams Co. vy. City ofLos Angeles 4 Cal. 4th 893, 898 (1993)). See also Pub. Res. Code § 40053 (police power ordinances may not conflict with IWMA). Although the Court of Appeal discussed Great Western Shows, Inc. v. Cnty. ofLos Angeles, 27 Cal. 4th 853 (2002) (citing Blue Circle Cement, Inc. v. Bd. ofCnty. Comm'rs, 27 F.3d 1499 (10th Cir. 1994)), noting it was “appropriate” in light of the similarly broad Statute at issue in that case,it did not, as Kern claims, “solely”rely on that case in finding a likelihood ofpreemption. Slip Op.at 23-24. Rather, the Court emphasizedits conclusion that Respondentsarelikely to succeed on their IWMA preemption claim because Measure E conflicts with the IWMA underestablished preemption principles. See id. at 24 (holding Measure E’s ban “inimical to the CIWMA.”). Moreover, the Court of Appeal’s analysis ofBlue Circle Cement was hardly a “novel” application of law. This Court hasat least twice cited and discussed the preemption principles ofBlue Circle Cement without criticism, including in last week’s decisionin City ofRiverside v. Inland 17 Empire Patient’s Health & Wellness Center, Inc., et al. See Great Western Shows, 27 Cal. 4th at 868; Riverside, No. $19863 8, Slip Op.at 34-35 (Cal. May6, 2013) (analyzing preemption standard ofBlue Circle Cement, and finding it inapplicable to the specific statutes at issue in Riverside); cf. Int’l Bad. ofElec. Workers v. City ofGridley, 34 Cal. 3d 191, 202 (1983) (finding local regulation which “would frustrate the declared policies and purposes” of statute “impermissible”). These cases demonstrate that Blue Circle Cementis consistent with California’s preemption jurisprudence, and the Court ofAppeal did not err in discussing it.” See also City ofLos Angeles, 2006 U.S. Dist. LEXIS 81417 at *38 n.4 (federal court concluding “that the California Supreme Court would endorse Blue Circle Cementif squarely presented with the question.”). Finally, Kern asks the Court to “grant review and hold the case” until a decision has beenissued in Riverside. Pet. at 24. This Court decided Riverside on May 6, 2013, and the opinion in that case provides no basis to grant review or to remand-to the Court ofAppeal for further consideration. Riverside does not change any preemption standards,andits application ofthose standardsis consistent with the Court of Appeals’ ruling in this case. In short, Riverside does not make review or remand here necessary, and thus the Court should reject Kern’s request. Riverside concerned a zoning ordinance enacted by the City of Riverside banning medical marijuana dispensaries (“MMDs”) in the city, and this Courtheld that the banis not preemptedbystate law (specifically, the Compassionate Use Actof 1996 (“CUA”) and the Medical Marijuana ° Further, Kern’s objectionin its petition to Blue Circle Cementcontradictsits earlier acknowledgment that this case is consistent with California law.See City ofLos Angeles, 509 F. Supp. 2d at 897 (citing Kern’s summaryjudgmentbriefs which recognized“a local regulation maybe invalidifit“goes too far’ and completely bans an activity a statute seeks to promote”and cited Great Western Shows, 27 Cal. 4th at 867-868 and Blue CircleCement, 27 F.3d at 1506-07). 18 Program (““MMP”)). See generally Riverside, No. S198638 (Cal. May6, 2013). In reaching this holding, Riverside applied the same uniform and well-established California tests for preemption used by the Court of Appealin this case. Compare Slip Op.at 22-23, with Riverside at 9-10. Riverside announcesno new law warranting review ofthis case, and the concurrence further makesclear that the opinion effectuates no change in preemption law. Moreover, much of the Court’s analysis in Riverside tiered from prior Court decisions narrowly delineating the scope of preemption under the CUA and MMP. Thereis no such case law constraining the [WMA. Kern alternatively urges the Court to remand the case for reconsideration in light of Riverside, arguing that affirmance of Riverside will raise inconsistency with the Court of Appeal decision in this case. Pet. at 24. With the Riverside ruling now in hand,plainly there is no inconsistency in the preemption rulings of these two cases. In its Riverside preemption analysis, the Court first looked closely at the CUA and MMPto determine the statutes’ purposes as embodied in their texts, and concluded the CUA and MMPto benarrow in scope, providing only limited immunity from state criminal and nuisance lawsforuse, cultivation, and possession of medical marijuana. Riverside, S$19863 at 3, 4, 11-25. The Court found the City of Riverside’s zoning ban did not conflict with the narrow goals of the CUA and MMP,andtherefore it was not preempted. Jd. at 3. The Court of Appeals in this case followed the samesteps in finding that Measure E waslikely to be preempted by the IWMA.Itfirst carefully considered the language of the [WMAto determineits purpose(s), and concludedthat it broadly mandates localities to “‘promote’ and ‘maximize’ recycling” and prioritize recycling over waste disposal. Slip. Op. at 21-23; see also Pub. Res. Code, §§ 40051, 40052. The Court of Appeal then correctly held that Measure E’s ban on biosolids recycling conflicts with 19 this broad mandate of the IWMA.Slip Op.at 24 (“A total ban .. . is inimical to the CIWMA.”).!° Contrary to Kern’s argument, this Court’s finding that the City of Riverside ban is not preempted by the specific immunity provisions of the CUA and MMPhaslittle bearing on whether Measure E ispreempted by the WMA — a very different statute that carries affirmative mandates for local governments to promote recycling of wastes and bars conflicting police power measures. Nor, as Kern suggests, doesaffirmance of Riverside stand broadly for the principle that local bans should be interpreted as a permissible form of regulation in all instances, and require the Court of Appealto revisit its preemption ruling in this case. In fact, this Court expressly declined to address that issue in Riverside, and thus Kern’s request for remandonthis basis is also unfounded. Riverside, at 25 n.8 (stating that the Court is not persuadedthat voters and legislature intended CUA and MMPtoprovideaffirmative authority for total bans, “[bJut we need notresolve the point.”). Accordingly, Kern’s request for review or reconsideration based on Riverside should be denied. | IV. CONCLUSION Kern has not shown that this Court’s review of the preliminary injunction is necessary or appropriate at this stage. Kern’s petition should be denied andthis case should now return to the Superior Court for resolution. The ban at issue in Riverside also differs because, unlike Measure E, there were no argumentsthat it affects the regional welfare, and there was no claim that it was motivated by discriminatory intent. The medical marijuana patients affected by the Riverside banarelikely to be Riverside residents. 20 Dated: May 13, 2013 CITY OF LOS ANGELES ay.[ZN Cor Exvark Soll. Carmen A. Trutanich (No. 86629) City Attorney Valerie Flores (No. 138572) Managing Assistant City Attorney Edward M.Jordan (No. 180390) Assistant City Attorney City of Los Angeles 1800 City Hall, 200 N. Main Street Los Angeles, CA 90012-4110 Attorneys for Plaintiff and Respondent City of Los Angeles BEVERIDGE & DIAMOND,P.C. / y fy. f a Bh i A, a+ = L*~GNd exy J. Smith (SBN 141393) “~~ Zachary M. Norris (SBN 268616) 456 MontgomeryStreet, Suite 1800 San Francisco, CA 94104-1251 Telephone: (415) 262-4000 Facsimile: (415) 262-4040 Email: gsmith@bdlaw.com znorris@bdlaw.com By: Attorneys for Plaintiffs and Respondents City of Los Angeles, Responsible Biosolids Management, Inc., R&G Fanucchi, Inc., and Sierra Transport,Inc. 21 LAW OFFICES OF MICHAELJ. LAMPE By: /ZMN/ at Michael Lamee Michael J. Lampe (SBN 82199) Michael P. Smith (SBN 206927) 108 W. Center Avenue Visalia, California 93291 Telephone: (559) 738-5975 Facsimile: (559) 738-5644 mjl@lampe-law.com Attorneys for Plaintiff and RespondentCity of Los Angeles LEWIS BRISBOIS BISGAARD & SMITH LLP ay.[ZN| for Pal Becfe. Daniel V. Hyde (SBN 63365) Paul J. Beck (SBN 115430) 221N. Figueroa Street, Suite 1200 Los Angeles, California 90012 Telephone: (213) 250-1800 Facsimile: (213) 250-7900 hyde@Ibbslaw.com beck@Ilbbslaw.com Attorneys for Plaintiff and Respondent County Sanitation District No. 2 of Los Angeles County WOODRUFF SPRADLIN & SMART By:|ztn/ for PB icic, Hocer Bradley R. Hogin (SBN 140372) Ricia R. Hager (SBN 234052) 555 Anton Boulevard, Suite 1200 Orange, California 92626 Telephone: (714) 558-7000 Facsimile: (714) 835-7787 bhogin@wss-law.com rhager@wss-law.com Attorneys for Plaintiff and Respondent Orange County Sanitation District 22 SOMACH SIMMONS & DUNN By: Zn/ for The PeSG Dur bean Theresa A. Dunham (SBN 187644) 500 Capitol Mall, Suite 1000 Sacramento, California 95814 Telephone: (916) 469-7979 Facsimile: (916) 446-8199 tdunham@somachlaw.com Attorneys for Plaintiff and Respondent California Association of Sanitation Agencies 23 CERTIFICATION Pursuant to California Rules of Court 8.504(d)(1), and in reliance upon the word count feature of the software used andnot counting words excluded under Rule 8.504(d)(3), I certify that this ANSWER TO PETITION FOR REVIEWcontains 5,853 words. Dated: May 13, 2013 . Norris 24 PROOF OF SERVICE At the time of service I was over 18 years of age and not a party tothis action. My business address is 456 MontgomeryStreet, Suite 1800,San Francisco, California 94104. On May 13, 2013, I caused the: ANSWERTO PETITION FOR REVIEW to be served on the persons below: Theresa A. Goldner County Counsel MarkL.Nations Chief Deputy County Counsel County of Kern 1115 Truxtun Avenue, 4th Floor Bakersfield, CA 93301 Tel: (661) 868-3800 Fax (661) 868-3809 Email: tgoldner@co.kern.ca.us; mnations@co.kern.ca.us ccollins@co.kern.ca.us Hogan Law APC Michael M. Hogan 225 Broadway, Suite 1900 San Diego, Ca 92101 Tel: (619) 687-0282 Fax: (619) 234-6466 Amold & Porter, LLP Jerome B. Falk, Jr. Steven L. Mayer Three Embarcadero Center,7th Floor San Francisco, CA 94111-4024 Tel: (415) 434-1600 Attorneys for Defendants/Appellants County of Kern and Kern County Board of Supervisors PROOF OF SERVICE Clerk of the Court Clerk of the Court Court of Appeal Superior Court for the State of Fifth Appellate District California State of California County of Tulare 2424 Ventura Street County Civic Center Fresno, CA 93721 2121 South Mooney Boulevard Visalia, CA 93291 The documents were served by the following means: BY UNITED STATESMAIL.I enclosed the documents in a sealed envelope or package addressedto the personsat the addresses in San Francisco, California and deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business’ practice for collecting and processing correspondence for mailing. On the same daythat correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. Dated: May 13, 2013 Sheila Griffin PROOF OF SERVICE