Filed 8/10/16 San Bernardino Valley Municipal Water Dist. v. San Gabriel Valley Water Co. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



SAN BERNARDINO VALLEY
MUNICIPAL WATER DISTRICT et al.,
                                                                        E063180
         Plaintiffs and Respondents,
                                                                        (Super.Ct.No. CIVDS1311085)
v.
                                                                        OPINION
SAN GABRIEL VALLEY WATER
COMPANY et al.,

         Defendants and Appellants;

CUCAMONGA VALLEY WATER
DISTRICT,

         Intervenor and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Bryan Foster,

Judge. Affirmed.




                                                             1
      Nossaman, Frederic A. Fudacz, Henry S. Weinstock, Thomas D. Long and Gina

R. Nicholls for Defendants and Appellants San Gabriel Valley Water Company, Fontana

Water Company and Fontana Union Water Company.

      Lagerlof, Senecal, Gosney & Kruse, Thomas S. Bunn III and Jenny S. Kim for

Intervenor and Appellant, Cucamonga Valley Water District.

      Downey Brand, David R.E. Aladjem, M. Max Steinheimer and Meredith E.

Nikkel for Plaintiff and Respondent San Bernardino Valley Municipal Water District

      Skapik Law Group, Geralyn L. Skapik, Mark C. Allen and Blair J. Berkley for

Plaintiff and Respondent City of Colton.

      Aleshire & Wynder, Fred Galante, Stephen R. Onstot and Miles P. Hogan for

Plaintiff and Respondent City of Rialto.

      Redwine & Sherrill, Gerald W. Eagans, Steven B. Abbott, Julianna K. Tillquist;

Rutan & Tucker, David B. Cosgrove; Larson O’Brien, Stephen G. Larson and Paul A.

Rigali for Plaintiff and Respondent West Valley Water District.

                                            I

                                   INTRODUCTION

      All the parties involved in this appeal are water utilities, claiming groundwater

pumping rights to the Rialto Basin located in southwestern San Bernardino County. In




                                            2
1961, the parties, or their predecessors, agreed to a stipulated judgment, the 1961 Decree,

establishing a plan for groundwater pumping rights within the Basin.1

       In February 2015, the San Bernardino County Superior Court granted a

preliminary injunction, limiting the groundwater pumping rights in the Basin to a

maximum of 2,520 acre-feet per year by appellants and defendants2 during drought years,

as provided under the 1961 Decree. Appellants argue that plaintiffs and respondents3

have not shown the likelihood of success on the merits and have failed to prove

imminent, irreparable, or any harm caused by appellants’ pumping. Appellants urge that

       1  “California uses more groundwater ‘than any other state and overdrafts as much
as 1.4 million acre feet in a normal year.’ But what is groundwater? And what is
overdraft? Groundwater is water that seeps into the ground and collects in the spaces
between the grains of gravel, sand, silt, or clay, or settles into fractured rock. . . . The
unsaturated zone, which is the distance between the land surface and the top of the
groundwater (also called the ‘water table’), can range from a few feet to hundreds of feet,
depending on the location. Areas with significant volumes of groundwater are called
aquifers. . . . Aquifers are also called groundwater basins. Groundwater basins are
recharged—refilled—when rain, river water, or agricultural irrigation water seeps down
through the unsaturated zone to the water table. A groundwater basin is in ‘overdraft’
when ‘the amount of water withdrawn by pumping exceeds the amount of water that
recharges the basin over a period of years’ under average conditions. [Fns. omitted.]”
(Tina Cannon Leahy, Desperate Times Call for Sensible Measures: The Making of the
California Sustainable Groundwater Management Act (2015) 9 Golden Gate U. Envtl.
L.J. 5, 7-8.)

       2Fontana Union Water Company (Fontana Union), Fontana Water Company
(Fontana Water), San Gabriel Valley Water Company (San Gabriel), and Cucamonga
Valley Water District (Cucamonga).

       3San Bernardino Valley Municipal Water District (San Bernardino), West Valley
Water District (West Valley), City of Colton, and City of Rialto.



                                             3
the order granting the preliminary injunction should be reversed. We conclude the trial

court did not abuse its discretion in granting the preliminary injunction and we affirm the

order of the lower court.4

                                             II

                  FACTUAL AND PROCEDURAL BACKGROUND

       The 1961 Decree applies to the Rialto Basin. In 1961, six entities, including

Colton, Rialto, and Fontana Union, claimed an interest in the Basin. The parties now

affected by the 1961 Decree include respondents West Valley, Colton, and Rialto, and

appellants Fontana Union, Fontana Water, San Gabriel, and Cucamonga. Respondent

San Bernardino is not a party or a successor to a party to the 1961 Decree.

       The 1961 decree defines a “water year” as the 12-month period beginning October

1 and ending September 30. The parties disagree about whether production limits are

imposed retroactively to October or prospectively after May of each water year.

       In March, April, and May of each water year, three index wells are measured to

establish the average spring high-water level. The 1961 Decree describes three permitted

levels of production based on the spring high-water level for a particular water year:




       4 We grant the request for judicial notice filed on May 29, 2015. We deny the
request for judicial notice filed on October 26, 2015. We recognize, however, that the
California Water Plan, including Bulletin No. 3, are established by statute at Water Code
section 10004.



                                             4
       1) If the spring high-water level is high, above 1002.3 feet above mean sea level,

unlimited pumping is allowed: “no stipulating party shall be limited in the amount of

water which may be pumped from the Basin.”

       2) If the spring high-water level is middle, between 1,002.3 and 969.7 feet above

mean sea level, then each party is entitled to pump a certain amount, as defined in

paragraph 5 of the 1961 Decree, during the water year.

       3) If the spring high-water level is low, below 969.7 feet above mean sea level,

then the amount of water each party is entitled to extract, as set forth in paragraph 5, shall

be reduced by one percent for each one foot below 969.7 feet above mean sea level, up to

a cumulative reduction of 50 percent.

       Paragraph 5 of 1961 Decree entitles Fontana Union to pump 550 acre-feet. In

addition, Fontana Union is entitled to pump an additional 370 acre-feet in connection

with its acquisition of well No. D-1166, and another 1,600 acre-feet during dry years

under a Standby Water Lease with Rialto.5 During middle-level years, Fontana Union’s

defined annual entitlement is limited to 2,520 acre feet. The maximum 50 percent

cutback during low-level years would allow Fontana Union to pump only 2,245 acre-feet



       5 In the year 2000, Fontana Union and Rialto negotiated and entered into a
Standby Water Lease. As part of a plan for landfill contamination remediation, Rialto
agreed to lease up to 1,600 acre-feet per year of its Rialto Basin pumping rights to
Fontana Union for use by San Gabriel, during any period of pumping limitation required
by the 1961 Decree.



                                              5
annually. In other words, except in high-level water years, appellants are only entitled to

pump between 2,245 and 2,520 acre-feet. It is not disputed that appellants seeks to

produce thousands more than 2,520 acre-feet every year.

       For many years, the Basin’s average spring high-water water levels remained high,

above 1,002.3 feet above mean sea level, allowing for unlimited groundwater pumping.

Before 2003, appellants pumped between 2,000 and 3,000 acre-feet per year. In and after

2003, appellants pumped between 5,000 and 9,000 acre-feet per year. In 2009, the water

levels were low, below 969.7 feet, limiting appellants’ pumping rights to 2,520 acre feet

or less.

       In 2014, the average spring high water-level was 942.99 feet above mean sea

level, meaning appellants were limited to pumping 2,371.5 acre-feet during the

2013/2014 water year. Instead, appellants extracted 7,718.040 acre-feet from the Basin.

On January 17, 2015, Governor Brown declared a drought state of emergency in

California.6 As of January 2015, appellants had already extracted more than 2,371.5

acre-feet in the first four months of the 2014/2015 water year.

       Admittedly, appellants have pumped far more than the allotment permitted under

the 1961 Decree. Respondents contend appellants’ excessive pumping has harmed

respondents by reducing the amount of water available to maintain healthy conditions in

       6
       Edmund G. Brown Jr., Office of Governor of Cal., A Proclamation of a State of
Emergency (Jan. 17, 2015).



                                             6
the Basin. In their second amended complaint, respondents allege equitable, tort,

contractual, and constitutional causes of action against appellants for violation of the

1961 Decree. Respondents specifically allege that appellants have pumped, and continue

to pump, excessive and unreasonable amounts of groundwater from the Rialto Basin.

       Appellants filed a cross-complaint seeking modification of the 1961 Decree based

on changed circumstances, including the requirement under the California Constitution,

Article X, Section 2,7 in appellants’ words to adopt a “modern physical solution” “to

maximize the beneficial use of the Rialto Basin’s water resources and storage space.”

Appellants particularly object to pumping being governed by measuring spring high-

water levels at the three index wells, as provided by the 1961 Decree.

       In September 2014, respondents filed a motion for a preliminary injunction against

appellants. In support of the motion, respondents contended that low water levels in the

Basin would require respondents to obtain alternative water supplies to meet consumer

demands. As part of the motion, the declarations of Peter J. Fox, Rialto’s water

       7  “It is hereby declared that because of the conditions prevailing in this State the
general welfare requires that the water resources of the State be put to beneficial use to
the fullest extent of which they are capable, and that the waste or unreasonable use or
unreasonable method of use of water be prevented, and that the conservation of such
waters is to be exercised with a view to the reasonable and beneficial use thereof in the
interest of the people and for the public welfare. The right to water or to the use or flow
of water in or from any natural stream or water course in this State is and shall be limited
to such water as shall be reasonably required for the beneficial use to be served, and such
right does not and shall not extend to the waste or unreasonable use or unreasonable
method of use or unreasonable method of diversion of water.” (Cal. Const., art. X, § 2.)



                                              7
superintendent, and Ken Sikorski, West Valley’s water superintendent, submitted

evidence of low water level readings at the index wells. Marcus L. Fuller, the Public

Works Director and City Engineer for Rialto, asserted that declining water levels,

combined with existing drought conditions, generated significant uncertainty as to

whether sufficient groundwater would meet consumer needs.

       In February 2015, the trial court granted a preliminary injunction prohibiting

appellants from pumping more than 2,520 acre-feet from the Basin.

                                             III

                                       DISCUSSION

       We frame our discussion according to several controlling premises. First, this

appeal involves the propriety of a preliminary prohibitory injunction, not a judgment

granting a permanent injunction. For that reason, many of the arguments made by the

parties may be more properly considered at trial and not during a pretrial motion. An

injunction will serve to protect the status quo until the technically complex record is more

fully developed at trial. Second, on its face, until it is modified or invalidated, the 1961

Decree restricts appellants’ levels of water production under certain circumstances.

Third, it is undisputed that appellants have exceeded their allotted pumping rights since

2009, although appellants insist they should be allowed to continue to do so.

       After reviewing appellants’ submissions to this court, we conclude that their goal

in opposing the preliminary injunction is actually, as set forth in their cross-complaint, to



                                              8
modify or negate the 1961 Decree and to eliminate the pumping limitations imposed by

the decree. Instead, we determine that the 1961 Decree applies according to its terms,

and therefore the trial court did not abuse its discretion in granting a preliminary

injunction prohibiting appellants from violating the 1961 Decree.

A. Standard of Review

       The parties disagree about the proper standard of review. Respondents contend

the decision to grant a preliminary injunction rests in the sound discretion of the trial

court and the trial court only abuses its discretion when it has “‘“exceeded the bounds of

reason or contravened the uncontradicted evidence.”’” (IT Corp. v. County of Imperial

(1983) 35 Cal. 3d 63, 69.) Appellants maintain a “heightened scrutiny” standard is

required for a mandatory, not prohibitory, injunction. The latter claim was rejected by

this court on appellants’ earlier petition for writ of supersedeas. Furthermore, “the

general rule is that an injunction is prohibitory if it requires a person to refrain from a

particular act and mandatory if it compels performance of an affirmative act that changes

the position of the parties.” (Davenport v. Blue Cross of California (1997) 52
Cal. App. 4th 435, 446.)

       An injunction designed to preserve the status quo between the parties and to

restrain illegal conduct is prohibitory, not mandatory, and does not require heightened

appellate scrutiny. (People et rel. Brown v. iMergent, Inc. (2009) 170 Cal. App. 4th 333,

342-343; Oiye v. Fox (2012) 211 Cal. App. 4th 1036, 1048.) Appellants cannot rely, as



                                               9
they seek to do, on City of Pasadena v. City of Alhambra (1946) 75 Cal. App. 2d 91, 95, or

Orange County Water District v. City of Riverside (1959) 173 Cal. App. 2d 137, 222-226

(OCWD) , because those cases involved the standard of review for a judgment for an

injunction, not a preliminary injunction.

       Unlike the mandatory injunction in People ex rel. Herrera v. Stender (2012) 212
Cal. App. 4th 614, the preliminary injunction here does not mandate affirmative acts but

rather prohibits appellants from pumping water in excess of their rights under the 1961

Decree. We reject the assertion that requiring appellants to keep monthly pumping

records converts this into a mandatory injunction. Instead, we hold heightened scrutiny is

not required in evaluating the two significant factors in granting a preliminary injunction:

(1) the likelihood of prevailing on the merits at trial, and (2) the balancing of harm

between the parties. (Cohen v. Board of Supervisors (1985) 40 Cal. 3d 277, 286.) “[T]he

burden is on the party challenging the preliminary injunction to prove it was improperly

granted.” (Costa Mesa City Employees Assn. v. City of Costa Mesa (2012) 209
Cal. App. 4th 298, 306.)

B. Preliminary Injunction

       In granting the preliminary injunction, the trial court expressly found respondents

were likely to prevail on the merits and would suffer greater harm if the injunction was

denied than appellants would suffer if the injunction was issued:




                                             10
       “[Respondents] have met their burden of showing that they will probably prevail

in their action against the [appellants] based on the [appellants’] failure to comply with

the terms of the stipulated judgment and that the harm that the [respondents] will suffer if

the [appellants] are not enjoined from violating the stipulated judgment will exceed the

harm that will be suffered by the [appellants] if they are required to comply with the

terms of that judgment and the court should grant the [respondents’] request for a

preliminary injunction preventing the [appellants] from pumping amounts of water from

the Rialto Basin that exceed the amounts permitted under the 1961 Decree.”

       On appeal, appellants primarily argue that respondents failed to establish there was

imminent, irreparable, or any harm caused by appellants’ pumping exceeding the limits

of the 1961 Decree. (Katz v. Walkinshaw (1903) 141 Cal. 116, 136.) We are not

persuaded by appellants. We conclude that respondents have established both prongs

entitling them to injunctive relief and the trial court did not abuse its discretion in

granting such relief.

1. Likelihood of Success

       At the outset, we agree with the trial court’s finding that respondents are likely to

prevail in showing that appellants are violating the clear provisions of the 1961 Decree.

Paragraph 5 of the 1961 Decree sets forth in plain terms Fontana Union’s annual

pumping rights in the Basin: unlimited when water levels are high; restricted when water

levels are low or middle level. Appellants admit they pump in excess of their entitlement



                                              11
in the 1961 Decree. For example, for the two water years, October 1, 2012-September

30, 2014, appellants pumped “a total of slightly more than 7,000 acre-feet per year.” In

January 2015, appellants admitted that Fontana Water Company had “already pumped

more than 2,371.5 acre-feet” for the 2014/2015 water year. It is undisputed that

appellants have often exceeded the pumping limits in the past and would continue to

exceed the annual limit of 2,520 acre-feet in the future.

       Instead of accepting the limits imposed by the 1961 Decree, appellants argue for a

variety of reasons that they should not be bound by the decree’s terms. Appellants insist

they are entitled by several circumstances to produce more water than set forth in the

decree. Initially, appellants contend that the 1961 Decree actually should be interpreted

to allow unlimited pumping for about eight months from October 1 until after the average

spring high-water levels are established in May. In other words, as described by the trial

court, the 1961 Decree “only places limits on their water pumping after each spring’s

measurements of the index wells and thus the limits only apply during dry years and only

during the summer.” As recognized by the trial court, such an interpretation is

completely at odds with the intent of the 1961 Decree to establish annual limits on

production in drier years.

       Appellants also argue that the 1961 Decree should be modified by the subsequent

Standby Water Lease, which was executed between Rialto and Fontana Union in 2000 as

part of a groundwater remediation plan for landfill contamination. The lease entitles



                                             12
Fontana Union to an additional 1,600 acre-feet per year but does not modify the 1961

Decree. Instead, the Standby Water lease incorporates the annual limits of the 1961

Decree: “The lease of water rights will allow San Gabriel to produce water at such times

as Fontana Union’s water rights in the Rialto Basin are limited or curtailed pursuant to

the Rialto Judgment (being when the Rialto Basin’s 3 index wells average mean sea level

elevation falls below 1,002.3 feet when measured in March, April, and May of any year

during the term of this Lease).” The meaning of the 1961 Decree is clear on its face and

the Standby Water Lease does not allow greater pumping rights than the 1961 Decree.

Because appellants cannot produce more water than permitted by the decree, the trial

court correctly found respondents were likely to succeed on their claims.

       We do not agree with appellants that the present and future harm caused by

overproduction from the Basin is ameliorated or excused by respondents’ purported 10-

year delay in seeking an injunction. The parties under the 1961 Decree waived their right

to assert laches or statute of limitations as a defense to any claim of excessive pumping:

“each stipulating party hereby waives as against each other stipulating party the right to

plead any statute of limitation or laches with respect to water extracted by such party in

excess of such amount.”

       Furthermore, any lapse in time does not excuse appellants’ recent and future

violations of the 1961 Decree. It was not until the summer of 2009 that average water

levels in the Basin dipped below 969.7 feet—the level at which graduated percentage



                                             13
reductions were triggered under the 1961 Decree. Since then average water levels in the

Basin have fallen below 950 feet. An aggrieved party is not required to seek an

injunction precipitously. Respondents and appellants tried to resolve this conflict before

respondents filed their action in September 2013. Respondents should not be penalized

for their efforts to resolve a dispute before initiating litigation. (Youngblood v. Wilcox

(1989) 207 Cal. App. 3d 1368, 1376.) Given current drought conditions and declining

water levels in the Basin, the preliminary injunction is necessary to protect the Basin and

all its customers who rely on the Basin for water. Therefore, the trial court did not abuse

its discretion in rejecting appellants’ argument that, because of delay, the injunction is not

necessary to prevent harm now or in the future.

2. Balancing of Respective Harms

       In spite of the likely success of respondents’ claims, appellants also assert that

respondents did not show imminent harm or comparatively greater harm than appellants.

Appellants challenge the evidentiary foundation of respondents’ motion by arguing that

insufficient admissible evidence establishes that pumping by appellants has caused the

water levels in the Rialto Basin to become lower over time. However, water level

readings at the three index wells are established directly by the declarations of Fox and

Sikorski, the two water officials. Appellants themselves relied on the subject data in

opposing the preliminary injunction. There is no plausible dispute about there being

lower water levels in the Basin.



                                             14
       Furthermore, appellants admit the trial court’s finding that reductions of the 1961

Decree were triggered in past years although appellants have usually pumped more than

7,000 acre-feet annually. For these reasons, we find it unnecessary to resolve the parties’

dispute about whether the trial court could properly rely on the allegations of the second

amended complaint, in addition to the declarations of public officials. The admissible

evidence submitted by respondents in support of the motion was sufficient to justify the

preliminary injunction.

       Next, appellants assert an injunction is not proper because respondents failed to

prove that it has been appellants’ pumping causing harm to respondents, even if there are

lower water levels. The material issue in this case is whether appellants’ overproduction

from the Basin adversely affects respondents by reducing supply in the Basin. Where

water rights are an issue, “[i]rreparable damage may . . . be sustained from whatever

makes the supply less dependable, less satisfactory in its quality or permanently more

expensive.” (OCWD, supra, 173 Ca1.App.2d at p. 216.) In OCWD, the court evaluated

the allegation that certain cities were pumping in excess of their rights and held that “the

lowering of the water table in the district is resulting and will result in irreparable

damage.” (Ibid.) The court held that overproduction of water was wrongful and “is in a

substantial degree one of the causes of the damage.” (Id. at pp. 216-217.)

       The evidence shows that, in the years when water levels at the index wells were

lower, the Basin water table correspondingly declined, causing respondents to restrict



                                              15
their own pumping under the terms of the 1961 Decree. During this time, appellants

annually extracted more than double the quantity of water to which they were entitled

under the 1961 Decree. Even though appellants insist there may be other causes for

reduced Basin groundwater levels, such as drought and contamination. Based on this

evidence, excessive pumping by appellants causes harm to respondents by contributing to

the Basin’s declining groundwater levels.

       Furthermore, water officials for respondents have attested to the lower water levels

in the Basin and that respondents have been compelled to undertake remedial measure to

address the situation caused by the decrease, including the purchase of alternative

imported water supplies. To paraphrase an observation of the OCWD court, it must not

be forgotten, that respondents are as much the representative of a public interest as are

appellants and appellants cannot be permitted to go on with indefinite and ever increasing

enlargement of their appropriations despite the absence of surplus water. (OCWD¸ supra,

173 Cal.App.2d at p. 223.)

       Appellants next argue the preliminary injunction will harm the public interest by

limiting appellant’s ability to provide reliable water supplies, raising customers’ water

bills, and preventing remedial pumping at Well F-49. However, there can be no public

interest in allowing illegal acts to continue. In Loma Portal Civic Club v. American

Airlines, Inc. (1964) 61 Cal. 2d 582, 588, the Supreme Court denied a permanent

injunction based on public policy only where there was no claim of a violation of federal



                                             16
law. In Tahoe Keys Property Owners’ Assn. v. State Water Resources Control Bd. (1994)

23 Cal. App. 4th 1459, 1472, the court weighed defendants’ public interest activities

against evidence that any harm could readily be redressed by compensatory damages and

held that a preliminary injunction was therefore not appropriate. Here, not only did

appellants clearly violate the 1961 Decree, but the harm to respondents and the reliability

of water supply in the Basin in general is not readily redressed by compensatory damages

and itself is contrary to the public interest.

       The “huge” costs claimed by appellants are speculative and not supported by the

record. Respondents have persuasively countered by explaining that appellants may

acquire alternative water supplies from the Chino Basin and can absorb those costs in

their operating budget without increasing customer rates. Fontana Water’s own Urban

Water Management Plan demonstrates Fontana Water currently operates only 11 of its 18

active wells in the Chino Basin with a reduced capacity of 24,500 gallons per minute, or

approximately 35.2 million gallons per day. Therefore, the trial court correctly balanced

appellants’ increased costs against the harm by excessive pumping from the Basin to find

in favor of respondents.

       There is also no evidence in the record that restricting pumping will harm

appellants’ remediation efforts. In 1998, the RWQCB8 issued Cleanup and Abatement

       8   Regional Water Quality Control Board.




                                                 17
Order No. 98-96 (the CAO) to address contamination from the Mid-Valley Sanitary

Landfill, operated by the County of San Bernardino. The CAO required the county to

“intercept and control the VOC9 plume at [the Landfill]” and to develop and submit plans

for a corrective action system and corrective action program.

       The CAO does not require appellants to pump any amount of water from Well F-

49 located in the Rialto Basin. Appellants’ assertion to the contrary is unfounded. Under

the Standby Water Lease, Fontana Union agreed it would try to operate Well F-49 to treat

not less than 2,000 gallons per minute. However, the County specifically agreed that

Fontana Union should operate Well F-49 according to its water rights under the Standby

Water Lease, which incorporates the restrictions of the 1961 decree. Additionally, the

County agreed that remediation could occur under “natural attenuation”—no pumping at

all—or only 1,000 gallons per minute rather than the 2,000 gallons per minute. The

County has noted that water produced from Well F-49 is “now consistently below the

state drinking water standards for all chemicals of concern,” signifying remediation has

been accomplished. In any case, the remediation issue must be resolved by the RWQCB

in consultation with the County, not by the court in an action between other parties.

       Cucamonga separately argues that, because it sells its share of Fontana Union’s

water, it will be forced to recoup lost revenue by raising water rates on its customers.



       9   Volatile organic compound.



                                             18
Cucamonga’s argument is unsupported in the record, and does not outweigh the harm to

respondents and the groundwater supply generally: “When the doctrine of relative

hardship or balancing conveniences is invoked as a defense to injunctive relief, proof of

irreparable injury to defendant is a necessary element of the defense.” (Volpicelli v.

Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal. App. 3d 242, 252.) In Volpicelli,

the Court of Appeal affirmed a preliminary injunction where the “array of purported

hardships” asserted by defendants were “untenable and completely lacking in merit.”

(Ibid.) Cucamonga’s speculative claim of economic harm pales compared to the harm to

respondents’ rights to pump under the 1961 Decree and the harm to the supply of

groundwater in the Basin in general. For these reasons, the trial court did not abuse its

discretion in finding that harm to respondents would be greater from denial of the

preliminary injunction than appellants are likely to suffer if the injunction was issued.

3. No Imminent Harm

       Notwithstanding respondents’ plain showing of harm, they would still be entitled

to a preliminary injunction, even in the absence of imminent harm. Section 526,

subdivision (a)(1), of the Code of Civil Procedure provides an injunction may be granted:

“When it appears by the complaint that the plaintiff is entitled to the relief demanded, and

the relief, or any part thereof, consists in restraining the commission or continuance of the

act complained of, either for a limited period or perpetually.” In White v. Davis (2003)

30 Cal. 4th 528, the court held “a trial court may grant a preliminary injunction upon a



                                             19
sufficiently strong showing of likelihood of success even when the party seeking the

injunction cannot show that the balance of harms ‘tips’ in its favor.” (Id. at p. 561.)

Tahoe Keys Property Owners’ Assn. v. State Water Resources Control Bd., supra, 23

Ca1.App.4th at page 1471, acknowledges that “irreparable injury” is just one way to

express the requirement that a trial court consider “potential harm” in deciding whether to

issue a preliminary injunction.

       The same principles operated in Fresno Canal & Irrigation Co. v. People’s Ditch

Co. (1917) 174 Cal. 441, involving the wrongful diversion of water and a preliminary

injunction to “restrain a repetition or continuation of the injury being done to plaintiffs,”

(id. at p. 450) without there being a finding of irreparable harm. Just as plaintiffs in

Fresno Canal were entitled to an injunction to restrain defendants, respondents are

entitled to an injunction to restrain appellants according to the terms of the 1961 Decree.

Analogously, the Supreme Court has held a riparian owner is entitled to enjoin others

from taking water so as improperly to injure him. (Rancho Santa Margarita v. Vail

(1938) 11 Cal. 2d 501, 550-554.)

       None of the cases cited by appellants stand for the proposition that irreparable or

imminent harm is a necessary finding for the issuance of a preliminary injunction in

contrast to a permanent injunction.10 The cases of Thompson v. Kraft Cheese Co. of

       10The federal cases cited by Cucamonga are inapplicable because they were
decided under federal procedural law, not California law. Even if irreparable harm is a



                                              20
California (1930) 210 Cal. 171, Rancho Santa Margarita v. Vail, supra, 11 Ca1.2d 501,

and East Bay Mun. Utility Dist. v. Department of Forestry & Fire Protection (1996) 43
Cal. App. 4th 1113, all involve permanent injunctions where the factors for issuance of a

preliminary injunction are distinct from permanent injunctive relief. (See Cohen v. Board

of Supervisors, supra, 40 Cal.3d at p. 286.) However, even in Vail, the court

acknowledged an injunction is proper when, as here, appellants claimed the right to take

more water than they were legally entitled to and injured respondent as a result. (Vail, at

p. 550.) Here the preliminary injunction prohibits these appellants from pumping beyond

their right under the 1961 Decree. Even without imminent harm, the trial court correctly

found in respondents’ favor.

4. Other Contentions

        Appellants maintain there are myriad causes for declining water levels in the

Rialto Basin, including drought, groundwater remediation, respondents’ own pumping,

and basin outflows, all of which require more comprehensive expert analysis and

evidence before an injunction is granted. None of these putative alternative causes serve

to offset the undisputed fact that appellants are violating the limits of the 1961 Decree.


[footnote continued from previous page]
[footnote continued from previous page]
required element for a preliminary injunction to issue under federal law, the California
Supreme Court has noted that factors such as irreparable harm are simply a different way
of describing the “interim harm” factor. (Cohen v. Board of Supervisors, supra, 40
Cal.3d at p. 286, fn. 5.)



                                             21
       First, the present drought makes compliance with the 1961 Decree’s terms even

more important. Second, the need for groundwater remediation as agreed upon by the

RWQCB, the County, Fontana Union, and Rialto is an issue separate from the 1961

Decree. Next, the record shows respondents have offset their own pumping after 2003 by

importing 113,672 acre-feet of water between 1990 and 2010. Additionally, when

groundwater levels fell in 2009, respondents reduced extractions from the Basin as called

for by the 1961 Decree.

       Appellants also contend there is surplus water “outflow” from the Rialto Basin in

the amount of 20,000 acre-feet per year which should be available for pumping.

However, even if such surplus water were available,11 appellants have no right to pump

such surplus water under the express terms of the 1961 Decree.

       Before 2003, appellants pumped approximately between 2,000 and 3,000 acre-feet

annually. Since 2003, appellants have pumped between 5,000 and 9,000 acre-feet per

year. Thus, after appellants’ increased pumping since 2003, groundwater levels have

fallen as anticipated by the 1961 Decree. In summary, appellants assert a number of

theories as to why groundwater levels in the Rialto Basin have fallen since 2003 but

appellants can scarcely deny their pumping since 2003 has not contributed to depleting

the water supply in the Rialto Basin.

       11Any surplus water is subject to prior appropriation by third parties. (Katz v.
Walkinshaw, supra, 141 Cal. at pp. 135-136.)



                                            22
5. No Adequate Remedy

       Appellants also argue that respondents failed to prove that damages and other

alternative remedies would be inadequate here. We conclude, there is an inherent public

interest in the reliability of supply in the Basin. For that reason, compensatory damages

would fail to provide adequate redress for the harm caused to respondents’ unique water

rights in the Basin. Finally, a bond or undertaking by appellants would not address the

irreparable harm being caused to respondents, and would not be appropriate for these

circumstances.

       Appellants argue that the public interest weighs more in their favor than

respondents for the purpose of determining the adequacy of remedies. However, while

both respondents and appellants can claim they are trying to protect the public interest of

their customers, the public interest is not served by illegal extractions from the Basin.

Even if the public interests served by appellants outweighed those served by respondents,

the Court must still consider the adequacy of money damages as an independent remedy.

(Peabody v. City of Vallejo (1935) 2 Cal. 2d 351, 377, citing Newport v. Temescal Water

Co. (1906) 149 Cal. 531, 538.)

       Water rights are considered an interest in real property, and money damages

generally are not considered an adequate remedy where real property is involved. (State

v. Superior Court (2000) 78 Cal. App. 4th 1019, 1025; Tehachapi-Cummings County

Water Dist. v. Armstrong (1975) 49 Cal. App. 3d 992, 999, fn. 5; Fonteno v. Wells Fargo



                                             23
Bank, N.A. (2014) 228 Cal. App. 4th 1358, 1380.) Appellants also assert that respondents

“submitted no evidence of the difficulty of calculating damages.” However, such

evidence is unnecessary if money damages would not adequately cure the injury caused

to respondents’ rights in real property. As previously stated, because water rights qualify

as real property, money damages cannot serve as an adequate remedy for the declining

water levels and the resulting damage caused to respondents.

       Like money damages, a bond would also not provide an adequate remedy. A

monetary bond will not raise the water levels in the Basin or allow respondents to pump

their full rights under the 1961 Decree during the pendency of this case. A surety will not

alleviate the harm to the Basin’s water supply. Furthermore, the purpose of an

undertaking is to cover any potential damages caused by the issuance of an injunction.

(Code Civ. Proc., § 529; Top Cat Productions, Inc. v. Michael’s Los Feliz (2002) 102
Cal. App. 4th 474, 478.) A bond is not meant to be a substitute for a preliminary

injunction as appellants propose here. Finally, a bond would have the effect of

compelling respondents to take steps to replenish the Basin to cover appellants’ continued

violations of the 1961 Decree.

6. Physical Solution

       Appellants also argue it violated the California Constitution for the trial court to

grant a preliminary injunction without considering a “physical solution.” Appellants




                                             24
incorrectly conflate a permanent injunction with a preliminary injunction. Furthermore,

the 1961 Decree is a physical solution.

       A “physical solution” is simply a court’s exercise of its equitable authority to

ensure that the use of water meets the constitutional requirement of placing the waters of

the State “to beneficial use to the fullest extent of which they are capable,” preventing the

waste or unreasonable use of water, and conserving water for the reasonable and

beneficial use in the public interest. (See Rancho Santa Margarita v. Vail, supra, 11

Cal.2d at pp. 558-559; Cal. Const., art. X, § 2.) “The phrase ‘physical solution’ is used in

water rights cases to describe an agreed-upon or judicially imposed resolution of

conflicting claims in a manner that advances the constitutional rule of reasonable and

beneficial use of the state’s water supply.” (City of Santa Maria v. Adam (2012) 211
Cal. App. 4th 266, 287.)

       A preliminary injunction is a provisional remedy issued to preserve the status quo

pending a trial on the merits. (Take Me Home Rescue v. Luri (2012) 208 Cal. App. 4th
1342, 1352-1353.) In contrast, a permanent injunction constitutes the ultimate relief on

the merits. (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc.

(2014) 225 Cal. App. 4th 786, 800.) A physical solution is a form of a permanent

injunction: “In working out a physical solution to water shortages . . . [a court] has the

power, by injunctive order, to cause the change to be accomplished.” (62 Cal.Jur.3d




                                             25
(2015) Water, § 456; see Central Basin Municipal Water Dist. v. Water Replenishment

Dist. of Southern California (2012) 211 Cal. App. 4th 943, 950.)

       According to appellants, “the court should not grant an injunction until every

reasonable physical solution, and every reasonable source of supply, has been thoroughly

investigated,” citing Rancho Santa Margarita v. Vail, supra, 11 Cal.2d at page 556.

However in Vail, the principal case relied on by appellants, the court granted a permanent

injunction entered as a final judgment in the action, not a preliminary injunction. (Id. at

pp. 517-518.) Similarly, City of Lodi v. East Bay Mun. Utility Dist. (1936) 7 Cal. 2d 316,

also involved a permanent injunction decree that constituted the ultimate relief in the

action following trial. (Id. at p. 344.) Finally, Tulare Irrigation Dist. v. Lindsay-

Strathmore Irrigation Dist. (1935) 3 Cal. 2d 489, involved an appeal from a permanent

injunctive decree. (Id. at pp. 517, 527.) Accordingly, a physical solution is only

appropriate as a permanent not preliminary injunction.

       In any event, a suitable physical solution already exists. The 1961 Decree, and its

self-correcting plan for maintaining water levels in the Basin, currently operates as a

comprehensive physical solution to protect the Basin is from exhaustion and

unconstitutional waste. The constitutional standard is satisfied by the preexisting

physical solution that remains in place. Thus, the trial court’s ruling that the 1961 Decree

is “an attempt to establish a physical solution to the overdraft issue that was apparent in

1961” is sound.



                                             26
       Appellants argue that the 1961 Decree is not a sufficient physical solution because

it does not regulate water use by overlying users, discuss a safe yield, account for an

alleged surplus of water, address supplemental water, or assess recharge options, among

other things. However, these considerations are not necessary for the granting of a

preliminary injunction even if the trial court should ultimately impose a permanent

physical solution to resolve these conflicting claims and to prevent unconstitutional waste

of water.

                                                V

                                      DISPOSITION

       Appellants’ production from the Rialto Basin exceeded 2,520 acre-feet during the

2013/2014 water year and nearly exceeded that amount early in the 2014/2015 water year

when the preliminary injunction was entered. There is no factual dispute that the spring

high-water levels have for several years declined below the level requiring the parties to

restrict their pumping as established by the 1961 Decree. The trial court did not abuse its

discretion in granting the preliminary injunction. We affirm the trial court’s order. The

parties shall bear their own costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                CODRINGTON
                                                                                             J.
We concur:


HOLLENHORST
          Acting P. J.

                                                27
McKINSTER
            J.




                 28