FILED

10-24-17
04:59 PM

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

Application of California-American Water

Company (U210W) for Approval of the Application 12-04-019
Monterey Peninsula Water Supply Project (Filed April 23, 2012)
and Authorization to Recover All Present and
Future Costs in Rates.

RESPONSE OF CALIFORNIA-AMERICAN WATER COMPANY

TO CITY OF MARINAS MOTION TO STRIKE

Sarah E. Leeper Lori Anne Dolqueist

Nicholas A. Subias Nossaman LLP
Cathy Hongola-Baptista 50 California Street
California American Water 34th Floor
555 Montgomery Street, Suite 816 San Francisco CA, 94111
San Francisco, CA 94111 ldolqueist@nossaman.com
For: California-American Water Company (415) 398-3600
sarah.leeper@amwater.com
(415) 863-2960

Attorneys for Applicant California-American Water Company

Dated: October 24, 2017

 BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA

Application of California-American Water

Company (U210W) for Approval of the Application 12-04-019
Monterey Peninsula Water Supply Project (Filed April 23, 2012)
and Authorization to Recover All Present and
Future Costs in Rates.

RESPONSE OF CALIFORNIA-AMERICAN WATER COMPANY

TO CITY OF MARINAS MOTION TO STRIKE

I. INTRODUCTION
Pursuant to Rule 11.1(e) of the California Public Utilities Commissions (Commission)

Rules of Practice and Procedure,1 California-American Water Company (California American

Water) submits this Response in opposition to the Motion of City of Marina to Strike Portions

of California-American Water Company Rebuttal Testimony (Motion to Strike), filed on

October 20, 2017. The City of Marina (Marina) seeks to strike certain attachments to

California American Waters Rebuttal Testimonies of Mr. Ian C. Crooks and Mr. Peter M.

Leffler, P.G., C.HG. and portions of the written testimonies that reference those attachments

(Technical Documents). As explained below, Marinas Motion to Strike has no merit and the

Commission should deny it in its entirety.

II. MARINAS MOTION TO STRIKE IS INCONSISTENT WITH COMMISSION

LAW AND PRACTICE AND SHOULD BE DENIED
Marinas Motion to Strike relies upon an incorrect and overly narrow interpretation of the

Rules that is inconsistent with Commission practice and policy.

A. The Commission Routinely Allows Technical Documents into the

Evidentiary Record
The technical reports and supporting documentation that Marina is seeking to strike in its

Motion to Strike are the types of document that are routinely admitted in the evidentiary record

1
All references to the Rules in this Response are to the Commissions Rules of Practice and Procedure
unless otherwise identified.

1
and relied upon by the Commission in numerous proceedings.

Previously in this proceeding, for example, California American Water witness Mr.

Richard Svindland attached technical documents to his testimony.2 No objections were raised by

any party at that time on the basis that those technical documents were not personally authored

or prepared by Mr. Svindland, nor did the Commission have issues regarding those documents

on that basis. It is entirely reasonable and routine under Commission practice to allow witnesses

to rely upon the technical reports created by the utility or outside consultants and submit them as

attachments to their prepared testimony.

While Marina acknowledges Mr. Leffler is one of four contributors on the Hydrogeologic

Working Groups report (HWG Final Report), it objects to the fact that it is unknown if he

authored or prepared that portion of the report referenced or relied upon in his Rebuttal

Testimony.3 It is unnecessary and unreasonable to expect that Mr. Leffler to have individually

produced such a lengthy and complex report. Such a strict and narrow rule is inconsistent with

Commission practice and would present an unworkable encumbrance on the ability of the

Commission to function efficiently.

Marinas legal arguments regarding hearsay are similarly baseless the Commission

regularly admits hearsay statements into the evidentiary record.4

2
See, e.g., Direct Testimony of Richard Svindland, Attachments 3-5 (technical documents served in April
2012); Supplemental Testimony of Richard Svindland, Attachments 1, 3, 4, 7, 9, 10, 11 (technical
documents served in January 2013); Rebuttal Testimony of Richard Svindland, Attachment 3 (technical
document served in March 2013).
3
Motion to Strike, p. 2.
4
D.13-08-005, Application of Neighbors for Smart rail for Rehearing of Resolution SX-100 and for Oral
Argument, Decision Following Rehearing Affirming Resolution Sx-100 And Granting Authorization To
Expo Authority To Construct 16 At-Grade And 11 Grade-Separated Highway Light Rail Crossings As
Part Of Phase 2 Of The Exposition Corridor Light Rail Transit Project, p. 16 ([T]he Commission has
considered hearsay evidence in other proceedings); D.13-04-032, Application of Pacific Gas and
Electric Company (U39E) for Approval of Amended Purchase and Sale Agreement Between Pacific Gas
And Electric Company and Contra Costa Generating Station LLC and for Adoption of Cost Recovery and
Ratemaking Mechanisms, Order Modifying Decision (D.) 12-12-035, And Denying Rehearing Of
Decision As Modified, pp. 6-7 (Accordingly, the Commissions use of hearsay evidence is permitted.) ;
D.99-01-029, Application of Landmark Communications, Inc., a California Corporation, for a Certificate
of Public Convenience and Necessity to Resell Local, InterLata, and IntraLata Telecommunications
Services Within California, Order Denying Rehearing of Decision 98-11-054, 84 CPUC 2d 698, p. *3.

2
 Indeed, the California Court of Appeal recently affirmed that it is well established that

hearsay evidence is admissible in Commission proceedings.5 The Court noted that the

Commission, as an administrative agency, is given more latitude to consider hearsay than the

courts because its factfinders are more sophisticated than a lay jury is.6 The Commission itself

has explained that it generally allows hearsay evidence if a responsible person would rely upon

it in the conduct of serious affairs,7 which is an apt description of the material that Marina seeks

to strike.

As cited in Marinas Motion to Strike, the Commission Rules provide in part that the

technical rules of evidence ordinarily need not be applied in hearings before the Commission.8

The only requirement is that the substantial rights of the parties shall be preserved.9 More

importantly, as discussed in Section II.C below, Marina fails to demonstrate why striking the

Technical Documents is required to protect its substantial rights in this proceeding.

B. Allowing the Technical Documents at Issue Would More Fully Inform the
Evidentiary Record
All of the Technical Documents at issue are within the identified scope of the upcoming

evidentiary hearings and relevant to more fully inform the Commissions decision-making in this

proceeding.

Attachment 1 to the Rebuttal Testimony of Ian C. Crooks is a Technical Memorandum

prepared by Jeroen Olthof, P.E., which was created specifically at Mr. Crooks request to meet
the Commissions request for testimony in this proceeding (Olthof Technical Memorandum).

This document provides exactly the sort of updates to water demand projections contemplated by

the Commission in the August 28, 2017 Assigned Commissioner And Administrative Law

5
Util. Reform Network v. Pub. Utilities Comm'n, 223 Cal. App. 4th 945, 95960 (2014).
6
Id., 223 Cal. App. 4th at 960; see also D.03-11-023, Investigation on the Commissions own motion into
the operations, practices and conduct of Starving Students, Inc. (Cal T-116,476), and Ethan Margalith,
Opinion Imposing Sanctions for violations of Public utilities Code and Commission Regulations, p. 9
(Our rules on the admissibility of hearsay are liberal.).
7
D.98-05-019, In re North Shuttle Service, Inc., Opinion, 80 CPUC 2d 223, p. *5.
8
Rule 13.6(a).
9
Id.

3
Judges Ruling Setting Issues And Schedule For Further Evidentiary Hearings And Requiring

Submission Of Supporting Documents (August 28 Ruling).10 Allowing this document to be

admitted to the evidentiary record would more fully inform the Commission and help it achieve a

more just and reasonable outcome.

Regarding the HWG Final Report, California American Water filed this report in

compliance with the settlement agreement it entered into with several of the parties in this

proceeding in July 2013, which is currently pending before the Commission. The submission of

the HWG Final Report was envisioned by the parties who entered into the July 2013 settlement

agreement and was done in good faith by California American Water to more fully inform the

record for the Commission.

C. Allowing the Technical Documents at Issue Would Not Affect Marinas

Substantial Rights
As stated above, Marina fails to demonstrate how admission of the Technical Documents

would negatively impact its substantial rights in this proceeding.

Marina conflates the admission of certain documents into the evidentiary record with the

Commissions acceptance of those facts as incontrovertibly true. That is incorrect. Marina still

has the opportunity in this proceeding to conduct cross-examination on both Mr. Crooks and Mr.

Leffler regarding the Technical Documents at the upcoming evidentiary hearings. It may also

make its arguments relating to the Technical Documents in briefing. At best, Marinas
objections go to the weight of the evidence presented, not its admissibility.

Moreover, Marinas objection that it and other intervenors have no opportunity serve

testimony in response or rebuttal to these attachments11 ignores the fact that there generally is

not an opportunity to respond to rebuttal testimony without leave of the Commission it is the

Applicant that has the burden of proof in this proceeding, not the intervenors.

10
August 28 Ruling, p. 3.
11
Motion to Strike, p. 2.

4
III. CONCLUSION
For the foregoing reasons, California American Water respectfully requests that the

Commission deny Marinas Motion to Strike in its entirety.

Respectfully submitted,
Dated: October 24, 2017
By: /s/ Lori Anne Dolqueist
Lori Anne Dolqueist
Nossaman LLP
50 California Street
34th Floor
San Francisco CA, 94111
For: California-American Water Company