Scheiber Ranch Properties v. City of Lincoln CA3

Filed 9/15/22 Scheiber Ranch Properties v. City of Lincoln CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
SCHEIBER RANCH PROPERTIES, LLP, et al.,
Plaintiffs and Appellants, C091038
v. (Super. Ct. No.
S-CV-0041269)
CITY OF LINCOLN,
Defendant and Respondent.
GREG RISSE, Individually and as Trustee, etc., C091148
Plaintiff and Appellant, (Super. Ct. No.
S-CV-0043127)
v.
CITY OF LINCOLN,
Defendant and Respondent.
Scheiber Ranch Properties, LP and Albert Scheiber (collectively Scheiber) and the
Greg and Michelle Risse Trust and Greg Risse (collectively Risse) sought declaratory
relief against the City of Lincoln (Lincoln) regarding rights to pump groundwater.
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The trial court sustained Lincoln’s demurrer without leave to amend, ruling the
declaratory action was not ripe.
Scheiber and Risse now challenge the trial court’s ruling. Finding no error, we
will affirm the judgments.
BACKGROUND
Scheiber’s first amended complaint alleged the following:
Scheiber Ranch Properties, LP owned and operated about 325 acres of agricultural
land in Placer County, west of Lincoln. Albert Scheiber was a partner of Scheiber Ranch
Properties, LP. There were three wells on the property, above the Sacramento Valley
Groundwater Basin, North American Sub-basin (Basin).
Groundwater levels in the Basin in the areas near the Scheiber property were in
decline. Lincoln relied more heavily on groundwater resources from the Basin via
existing wells during times of drought.
Lincoln approved large development projects that contemplated the construction
of several thousand new homes in an area west of Lincoln over the next decade. It also
approved plans to construct at least six new wells to pump groundwater from the Basin to
supply water to the development projects. Scheiber believed Lincoln would construct
new wells within the next one to two years or sooner and Lincoln planned to approve
additional wells within the next two to five years. Scheiber was informed and believed
that at least three of the new Lincoln wells would be located within a mile of the Scheiber
property and wells. Scheiber was informed and believed the new Lincoln wells would
negatively impact the area of the Basin underlying the Scheiber property and would
potentially negatively impact Scheiber’s ability to pump groundwater for use on their
property.
Scheiber alleged there was limited surplus water available in the area of the Basin
underlying the Scheiber property for appropriation by Lincoln and the availability was
not in amounts anticipated to be pumped by Lincoln. Scheiber sought judicial
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declarations relating to Lincoln’s right to pump groundwater from the Basin via the new
Lincoln wells.
Risse’s complaint made similar allegations about Lincoln’s plans to build new
wells to pump groundwater from the Basin. Risse further alleged it owned and operated
about 75 acres of agricultural land in Placer County, west of Lincoln. It had six wells on
the property. Risse pumped groundwater from the Basin as overlying users for domestic
and agricultural purposes. Lincoln’s proposed new wells would be located near the Risse
property. Risse was informed and believed that a certain amount of water pumped by
some of its wells included underflow from the Auburn and Markham Ravines, and Risse
pumped that water as an overlying owner. Risse was informed and believed the new
Lincoln wells would negatively impact the area of the groundwater Basin underlying the
Risse property and Risse’s ability to pump groundwater for use on its property. Risse
alleged the new Lincoln wells would adversely impact the underflow of the Markham
and Auburn Ravines.
Risse sought judicial declarations relating to Lincoln’s right to pump groundwater
from the Basin via the new Lincoln wells.
Lincoln filed demurrers to the Scheiber and Risse complaints. Lincoln argued,
among other things, that the Scheiber and Risse claims were not ripe for adjudication
because the complaints alleged only Lincoln’s potential plans to build new wells, plans
that might never come to fruition.
The trial court sustained the demurrers without leave to amend. It ruled, among
other things, that the claims were not ripe for adjudication because the proposed Lincoln
wells had not been built. The trial court denied leave to amend because Scheiber and
Risse had not shown that the defects in their pleadings could be cured.
We consolidated the appeals pursuant to a stipulation by the parties.
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STANDARD OF REVIEW
A demurrer tests the legal sufficiency of the challenged pleading. (Milligan v.
Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 5
(Milligan).) We independently evaluate the pleading, construing it liberally, giving it a
reasonable interpretation, reading it as a whole and viewing its parts in context. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318; Milligan, at pp. 5-6.) We assume the truth of all
material facts properly pleaded or implied but do not assume the truth of contentions,
deductions or conclusions of law. (Schifando v. City of Los Angeles (2003) 31 Cal.4th
1074, 1081; Milligan, at p. 5.) Viewing matters through this prism, we determine de
novo whether the factual allegations of the challenged pleading are adequate to state a
cause of action under any legal theory. (Milligan, at p. 6.) The appellant bears the
burden of demonstrating that the demurrer was sustained erroneously. (Friends of
Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470,
1485.)
We review a trial court’s decision to deny leave to amend for abuse of discretion.
(Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) If the challenged pleading could be
amended to state a cause of action, the trial court abused its discretion in denying leave to
amend and we will reverse; if not, there has been no abuse of discretion and we will
affirm. (Ibid.) “It is the plaintiff’s burden on appeal to show in what manner it would be
possible to amend a complaint to change the legal effect of the pleading; we otherwise
presume the pleading has stated its allegations as favorably as possible.” (Fuller v. First
Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 962.) “To meet this burden, a
plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts
and demonstrate how those facts establish a cause of action. [Citations.] Absent such a
showing, the appellate court cannot assess whether or not the trial court abused its
discretion by denying leave to amend.” (Cantu v. Resolution Trust Corp. (1992)
4 Cal.App.4th 857, 890.)
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DISCUSSION
Scheiber and Risse argue the trial court erred in finding their actions not ripe for
adjudication. They say overlying rights owners may obtain a judicial determination that
their right to groundwater is paramount to the rights of an appropriator like Lincoln
before Lincoln constructs new wells to pump groundwater. They contend an action to
determine priority is ripe for adjudication whenever an overlying rights owner has
reasonable cause to believe that an approved but still unbuilt program might affect the
overlying rights owner.
A
California courts will decide only justiciable controversies. (City of Santa Maria
v. Adam (2019) 43 Cal.App.5th 152, 161-162 (Santa Maria II).) Courts will not entertain
an action which is not founded on an actual controversy, because the proper role of the
judiciary does not extend to the resolution of abstract differences of legal opinion. (Id. at
p. 162.) The ripeness doctrine recognizes that judicial decision making is best conducted
in the context of an actual set of facts so that the issues will be framed with sufficient
definiteness to enable the court to make a decree finally disposing of the controversy.
(Ibid.)
A controversy is ripe for adjudication when the facts have sufficiently congealed
to permit an intelligent and useful decision, and when withholding a decision would
result in hardship to the parties. (Santa Maria II, supra, 43 Cal.App.5th at p. 162.) We
review an issue’s ripeness de novo. (Ibid.)
B
Generally speaking, an overlying right is the right of the landowner to take water
from the ground underneath for use on his or her land within the basin or watershed.
(City of Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 925.) Scheiber and Risse
alleged they had overlying rights to pump groundwater from the Basin.
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An appropriative right is the right to take water for other than overlying uses.
(City of Pasadena v. City of Alhambra, supra, 33 Cal.2d at p. 925.) Water producers or
entities that take water and export or use it for municipal purposes or for sale to the
public are appropriators. (Id. at p. 927.) “ ‘Public interest requires that there be the
greatest number of beneficial users which the supply can yield, and water may be
appropriated for beneficial use subject to the rights of those who have a lawful priority
[citation]. Any water not needed for the reasonable beneficial use of those having prior
rights is . . . surplus water and may rightly be appropriated on privately owned land for
non-overlying use, such as devotion to public use or exportation beyond the basin or
watershed [citation].’ ” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th at pp. 278-
279.) An appropriator is limited to the remainder of the safe yield in the underground
basin, which is the maximum amount of water that could be extracted annually, year after
year, without eventually depleting the underground basin. (Id. at p. 279.) An overdraft
results when extractions exceed the safe yield. (Ibid.) Scheiber and Risse alleged that
Lincoln’s right to pump groundwater from the Basin via the new Lincoln wells, if any,
would be appropriative.
In other words, an overlying rights owner has the right to pump water from the
ground under his or her land for use on the land. (City of Barstow v. Mojave Water
Agency (2000) 23 Cal.4th 1224, 1253.) When there is surplus water, an appropriator may
take the surplus without compensation and the appropriation may not be enjoined. (Id. at
pp. 1241, 1243, 1245.) But when water is insufficient to meet the needs of all users,
overlying rights owners have priority over appropriators, with an exception for
prescriptive rights not applicable here. However, overlying rights owners are limited to
their proportionate fair share of the amount available based on their reasonable needs.
(Id. at p. 1253.) After considering the priority of water rights, a court may limit a party’s
rights to reasonable and beneficial uses. (Id. at p. 1240; Cal. Const., art. X, § 2.)
Determining what is a reasonable use is a question of fact to be determined from the
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circumstances of each case. (Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation
Dist. (1935) 3 Cal.2d 489, 567 [what may be a reasonable beneficial use where water is
in excess of all needs would not be a reasonable beneficial use in an area of great scarcity
and great need, and what is a beneficial use at one time may, because of changed
conditions, become a waste of water at a later time].)
C
Scheiber’s first cause of action sought a declaration that its right to pump
groundwater from the Basin had priority over the new Lincoln wells. Scheiber’s second
cause of action sought a declaration that Lincoln’s right to pump groundwater from the
Basin via the new wells, if any, would be as an appropriator only and Lincoln would be
entitled to pump surplus water only. Scheiber’s third cause of action sought a declaration
that Lincoln had not acquired any prescriptive rights to groundwater via the new wells.
Risse sought similar judicial declarations, adding that Lincoln had no right to
pump or interfere with the underflow of the Markham and Auburn Ravines, and
Lincoln’s plan to triple groundwater pumping from the Basin using new Lincoln wells
during periods of drought would be unreasonable.
In Santa Maria II, the appellate court held that a motion to confirm overlying
rights against future prescription by appropriators was not ripe for adjudication. (Santa
Maria II, supra, 43 Cal.App.5th at pp. 162-165.) It said resolution of the issue would
require the appellate court to speculate about hypothetical scenarios because there was no
evidence of an overdraft. (Id. at p. 163.) It observed that it was possible the cross-
defendants would never violate the cross-complainants’ overlying rights, and resolution
of the motion would require the appellate court to speculate about facts surrounding an
appropriator’s hypothetical taking of water. (Ibid.)
In comparison, in Tehachapi-Cummings County Water Dist. v. Armstrong (1975)
49 Cal.App.3d 992, 998-99, the appellate court found an actual controversy relating to
the rights of overlying owners where “wells were deepened, some had to be abandoned,
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the cost of pumping water increased throughout the basin, and the peripheral, watered,
alluvial areas underwent a contraction” as a result of continued overdraft of the basin.
Here, the claims in the complaint are not ripe for adjudication because although
the complaints referred to existing Lincoln-owned wells, Scheiber and Risse sought
declaratory relief relating to the anticipated taking of water from new (unbuilt) Lincoln
wells. Appropriative rights depend on the actual taking of water. (City of Barstow v.
Mojave Water Agency, supra, 23 Cal.4th at p. 1241.) Resolution of the issues in this case
would require the courts to speculate about hypothetical scenarios. A determination
regarding the priority of Scheiber and Risse’s overlying rights to groundwater vis-a-vis
the appropriative rights of Lincoln via the new wells, and the scope and reasonableness of
groundwater pumping via the new Lincoln wells, would require the courts to assume
hypothetical future appropriations, from new wells that may never be built, under
unknown future supply and demand conditions, to serve development projects allegedly
planned to be built over the next decade. In addition, Scheiber and Risse do not
demonstrate that they will suffer hardship in the absence of an immediate judicial
determination. Scheiber and Risse did not allege facts showing that their concerns about
Lincoln’s plan to pump groundwater from yet-to-be-constructed wells require action at
the present time. Moreover, Scheiber and Risse did not demonstrate how they can amend
their pleadings to allege more than speculative appropriation via the planned new wells.
Among other things, Scheiber and Risse sought a declaration that Lincoln had not
acquired any prescriptive rights to groundwater by way of the new Lincoln wells. But
there is no prescriptive right without an appropriation of water. (Central and West Basin
Water Replenishment Dist. v. Southern Cal. Water Co. (2003) 109 Cal.App.4th 891, 909.)
A claim of prescription requires a finding that the defendant diverted some definite
quantity of water. (Logan v. Guichard (1911) 159 Cal. 592, 597; Hayes v. Silver Creek
& Panoche Land & Water Co. (1902) 136 Cal. 238, 240; Crain v. Hoefling (1942)
56 Cal.App.2d 396, 402-404; Willits Water & Power Co. v. Landrum (1918) 38 Cal.App.
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164, 171 [citing Civ. Code, § 806]; see California Water Service Co. v. Edward
Sidebotham & Son, Inc. (1964) 224 Cal.App.2d 715, 727-728 [stating that prescriptive
rights are measured by the amounts of the takings for the full prescriptive period]; Eden
Township Water Dist. v. City of Hayward (1933) 218 Cal. 634, 637-639 [holding that
prescriptive right to pump water and divert it from an underground water supply should
be limited to the greatest amount diverted and used in any one calendar year of the
prescriptive period].) Scheiber and Risse’s pleadings do not allege any appropriation of
water via the new Lincoln wells. Scheiber and Risse do not state how they can amend
their pleadings to allege an appropriation via the new Lincoln wells.
Under the circumstances, the trial court did not err in sustaining the demurrers
without leave to amend.
DISPOSITION
The judgments are affirmed.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
DUARTE, J.
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