Filed 2/26/24 Malaga County Water Dist. v. Central Valley Regional Water Quality Control Bd. CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MALAGA COUNTY WATER DISTRICT,

Plaintiff and Appellant,

v.

CENTRAL VALLEY REGIONAL WATER 

QUALITY CONTROL BOARD et al.,

Defendants and Respondents.

F084854

(Super. Ct. No. MCV071279)

OPINION

APPEAL from a judgment of the Superior Court of Madera County. Michael J. 

Jurkovich, Judge.

Costanzo & Associates and Neal E. Costanzo for Plaintiff and Appellant.

Rob Bonta, Attorney General, Michael P. Cayaban and Joshua M. Caplan, Deputy 

Attorneys General, for Defendants and Respondents.

-ooOoo-
2.

In a prior incarnation of this case between Malaga County Water District (Malaga) 

and the Central Valley Regional Water Quality Control Board (Water Quality Board), 

this court chose not to resolve whether this case was moot and instead exercised its 

discretion to resolve issues of broad public interest that are likely to recur—namely, 

whether the Water Quality Board improperly delegated authority to its executive officer.1 

The case was ultimately remanded to the trial court to consider the mootness issue. The 

trial court found the matter moot because the disputed permit underlying the lawsuit had 

expired. In this appeal, Malaga contends the trial court erred. For the reasons set forth 

below, we disagree. The case is moot.

FACTUAL AND PROCEDURAL BACKGROUND2

The core facts underlying this lawsuit have not changed since our prior opinion in 

Malaga I. We therefore begin with a summary of our prior factual recitation for relevant 

background before providing additional information regarding actions taken after 

remand.

Malaga owns and operates a wastewater treatment facility in Fresno County.

Malaga’s discharge of treated wastewater is legally governed by both California and 

federal laws. The Water Quality Board is the entity tasked with permitting and regulating 

Malaga’s activities under both legal frameworks.

Between 2008 and 2013, Malaga’s activities were regulated under order No. R5-

2008-0033, adopted by the Water Quality Board renewing Malaga’s waste discharge 

requirements (the requirements imposed by California law) for its National Pollutant 

Discharge Elimination System (NPDES) permit No. CA0084239 (the permit required 

1 Malaga County Water Dist. v. Central Valley Regional Water Quality Control Bd. (2020) 

58 Cal.App.5th 396 (Malaga I).

2 Malaga requests this court take judicial notice of an order granting a petition for writ of 

administrative mandamus in Malaga County Water District v. Central Valley Regional Water 

Quality Control Board (Super. Ct. Fresno County, 2021, No. 16CECG03036), a separate case 

between the parties. With no objection, the court takes judicial notice of this court record.
3.

under federal law). The waste discharge requirements and permit were enforced, as is 

normally the case, with a separate cease and desist order. We refer to these documents as 

“the 2008 permit” for ease of reference.

Relevant permits are required to be renewed every five years. Thus, in 2014, the 

Water Quality Board issued renewed waste discharge requirements, a new NPDES 

permit, and an updated cease and desist order, which we refer to as “the 2014 permit.” 

The 2014 permit set the permitted discharge rate into certain disposal ponds at 

0.49 million gallons per day (mgd) but allowed an increase in the permitted discharge 

rate up to 0.85 mgd, subject to the approval of the Water Quality Board’s executive 

officer.

Malaga filed a petition for review with the State Water Resources Control Board 

and, later, filed a writ of mandate action alleging the permit included an improper 

delegation of authority. The trial court concluded the 2014 permit granted Malaga all the 

relief it had requested and declared the action moot. This ruling led to the prior appeal in 

Malaga I.

While that appeal was pending, the 2014 permit expired. On February 20, 2020, 

the Water Quality Board issued Malaga a new waste discharge requirement permit. The 

2020 permit alleged Malaga no longer discharged wastewater into a specific canal, which 

eliminated the need for a federal NPDES permit, and thus purported to only comprise a 

state waste discharge requirement permit. The 2020 permit purported to permit a 

discharge to on-site disposal ponds that “shall not exceed a monthly average flow of 

0.85 mgd.” (Malaga I, supra, 58 Cal.App.5th at p. 406.)

In the prior litigation, a dispute arose regarding whether the expiration of the 2014 

permit and the implementation of the 2020 permit mooted the case. This court 

determined that the delegation of authority contained in the 2014 permit was an issue of 

broad public interest, which may evade review if mootness is strictly enforced. We 

exercised our discretion to hear the matter even if moot but expressly left “open any 
4.

factual disputes regarding mootness, leaving them to the trial court upon remand given 

that our resolution means the court will also be faced with additional claims previously 

raised by Malaga that it chose not to reach upon concluding the 2014 permit did not 

include an improper delegation of authority.” (Malaga I, supra, 58 Cal.App.5th at 

p. 409.) We then concluded that the delegation of authority had been improper and 

remanded the matter to the trial court. (Id. at pp. 416–417.)

Upon remand, the parties again clashed over whether the case was moot. In 

addition, Malaga both renewed arguments that had not been considered prior to the last 

appeal concerning alleged flaws in the 2014 permit and challenged rulings regarding the 

scope of the record that had previously been decided. The parties filed multiple rounds of 

briefing concerning mootness and the scope of review on remand. The trial court 

eventually held a hearing and issued a tentative ruling, to which Malaga filed objections. 

The trial court overruled these objections and adopted its tentative ruling as its statement 

of decision.

In line with its ruling, the trial court denied Malaga’s writ petition. After 

extensive discussion, the court concluded the action was moot “because the 2014 Permit 

and [cease and desist order] expired on their own terms, and were superseded by the 2020 

Permit.” The court then discussed several other merits-based issues that had been raised 

by Malaga and explained, “To allow the parties the full benefit of arguing any remaining 

issues on the merits, the court will briefly consider the merits of the other issues raised in 

the parties’ briefs and at oral argument.” In addition, the court concluded it would not 

review its prior ruling regarding the scope of the administrative record because that ruling 

had issued before the prior appeal and had not been raised in those appellate proceedings.

This appeal timely followed.
5.

DISCUSSION

Standard of Review and Applicable Law

“ ‘California courts will decide only justiciable controversies. [Citations.] The 

concept of justiciability is a tenet of common law jurisprudence and embodies “[t]he 

principle that courts will not entertain an action which is not founded on an actual 

controversy ....” [Citations.] Justiciability thus “involves the intertwined criteria of 

ripeness and standing. A controversy is ‘ripe’ when it has reached, but has not passed, 

the point that the facts have sufficiently congealed to permit an intelligent and useful 

decision to be made.” [Citation.] But “ripeness is not a static state” [citation], and a case 

that presents a true controversy at its inception becomes moot “ ‘if before decision it has, 

through act of the parties or other cause, occurring after the commencement of the action, 

lost that essential character.’ ” ’ [Citation.]

“ ‘The pivotal question in determining if a case is moot is therefore whether the 

court can grant the plaintiff any effectual relief. [Citations.] If events have made such 

relief impracticable, the controversy has become “overripe” and is therefore moot.’ 

[Citation.] By the same token, an appeal is moot if ‘ “the occurrence of events renders it 

impossible for the appellate court to grant appellant any effective relief.” ’ ” (Lockaway 

Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 174–175, sixth & eighth 

bracketed insertions added.) “For relief to be ‘effective,’ two requirements must be met. 

First, the plaintiff must complain of an ongoing harm. Second, the harm must be 

redressable or capable of being rectified by the outcome the plaintiff seeks.” (In re D.P. 

(2023) 14 Cal.5th 266, 276.)

We review mootness questions de novo. (In re D.P., supra, 14 Cal.5th at p. 276.)

The 2014 Permit’s Expiration Mooted the Case

Malaga’s underlying writ petition sought the specific relief of enjoining 

implementation of the 2014 permit and allowing Malaga to operate under the 2008 permit 

until a new NPDES permit was issued. In 2020, a new permit issued that granted Malaga 
6.

the discharge flow necessary to operate but concluded no new NPDES permit was 

required. Malaga conceded before the trial court that this would normally make the case 

moot. However, in this instance Malaga asserts the Water Quality Board’s actions in 

enforcing the 2008 permit and the threat of future litigation mean this case does not fall 

within the normal result.

Malaga first points to the fact that the administrative record from the 2014 

permit—or at least documents currently included in that record, a point of dispute in 

Malaga’s eyes—were submitted in proceedings to enforce the 2008 permit. These 

documents, identified as “Attachment F” and the findings included with the 2014 cease 

and desist order, allegedly support continuing the writ to void the 2014 permit because 

they contain “purported factual determinations that will become conclusive and 

unassailable” if the case is dismissed. We do not agree.

Malaga points to no legal basis to conclude that contested factual matters related 

to the 2014 permit would become unassailable should Malaga’s writ challenging the 2014 

permit be dismissed as moot. Further, there are no known and current actions seeking to 

enforce the expired 2014 permit which could theoretically be affected by such a ruling. 

Moreover, even if there were, Malaga identifies no reason why similar challenges to the 

truth or reliability of the evidence allegedly contained in the 2014 permit documents 

could not be raised in those, or subsequently initiated, proceedings. In this court’s 

review, it has identified no basis by which to conclude the case is not moot because 

Malaga contests the factual nature of certain documents in the current administrative 

record. Malaga’s theoretical claim that underlying facts will be conclusively determined 

appears unsupported in the law and thus fails to support an assertion this case is ripe for 

review.

Malaga’s second argument is that it remains subject to potential citizen suits filed 

under title 33 United States Code section 1365 asserting violations of the 2014 permit 

until at least 2025, and thus its writ petition remains ripe. In response, the Water Quality 
7.

Board cites to Gwaltney v. Chesapeake Bay Foundation (1987) 484 U.S. 49, 52

(Gwaltney) for the premise that citizen suits cannot be filed to remedy “wholly past 

violations,” precluding future suits now that the 2014 permit has expired. Malaga replies 

that this asserted premise is, in fact, false and that it constitutes a mere pleading 

requirement.

We agree with the Water Quality Board. In Gwaltney, the Supreme Court sought 

to decide “whether § 505(a) of the Clean Water Act, also known as the Federal Water 

Pollution Control Act, 33 U.S.C. § 1365(a), confers federal jurisdiction over citizen suits 

for wholly past violations.” (Gwaltney, supra, 484 U.S. at p. 52.) In this jurisdictional 

analysis, the Supreme Court concluded “that § 505 does not permit citizen suits for 

wholly past violations” but noted that “§ 505 confers jurisdiction over citizen suits when 

the citizen-plaintiffs make a good-faith allegation of continuous or intermittent 

violation.” (Id. at p. 64.) Malaga’s argument that this analysis merely created a pleading 

standard is fundamentally opposed to the court’s analysis under a jurisdictional standard.

Moreover, Malaga’s argument is not supported by the cases Malaga cites, such as 

California Sportfishing Protection Alliance v. The Shiloh Group, LLC (N.D. Cal. 2017) 

268 F.Supp.3d 1029 (California Sportfishing). In California Sportfishing, the district 

court affirmed the holding in Gwaltney “that wholly past violations are not actionable 

through citizen suits under the [Clean Water Act],” and that ceasing a violation before 

suit would moot a case. (California Sportfishing, at p. 1042.) The court noted, however, 

that a defendant alleging they have ceased violating the law bears a heavy burden to 

prove mootness so that violators cannot hide conduct through regularly ceasing ongoing 

conduct. (Ibid.) Thus, in California Sportfishing, the case could not be dismissed where 

disputed factual claims surrounded a contention that the defendant had ceased its illegal 

conduct one day before suit was filed. (Id. at pp. 1042–1043.) At no point, however, 

does that case, nor any of the others cited by Malaga, suggest that the jurisdictional 
8.

requirement of continuous or intermittent violations had been reduced to a mere pleading 

formality.

In the present case, the expiration of the 2014 permit and implementation of a 

different set of permissions in the 2020 permit, which concludes that federal law does not 

govern the relevant discharges, means that no continuous or intermittent violation likely 

exists. As such, we agree with the Water Quality Board and the trial court that citizen 

claims under the Clean Water Act (33 U.S.C. § 1251 et seq.) based on a failure to comply 

with the 2014 permit have been mooted by the expiration of the 2014 permit and 

implementation of the 2020 permit. Finally, even if such a suit were possible, Malaga 

would still face a ripeness issue. The prospect of an uncertain future lawsuit does not 

generally give rise to a ripe controversy. (See Wilson & Wilson v. City Council of 

Redwood City (2011) 191 Cal.App.4th 1559, 1582–1586.) Malaga has failed to raise any 

argument that its perceived openness to a citizen suit supports a ripe conflict in this 

matter, and this court sees no indication that such a prospective claim renders this case fit 

for immediate judicial review or subjects Malaga to hardship if such a review is delayed.

Upon review of the record and arguments presented, this court sees no basis by 

which a court can grant Malaga effective relief on its request for an injunction against 

implementation of the expired 2014 permit or for its request that the 2008 permit apply,

given that Malaga’s conduct is now controlled by the 2020 permit. “Courts regularly find 

cases nonjusticiable when injunctive relief is sought but, pending appeal, the act sought 

to be enjoined has been performed. [Citation.] In Giles, for instance, the plaintiffs sued 

to enjoin as illegal a county’s expenditure of public funds to hire private contractors to 

provide services under a state welfare program. Because those contracts had expired and 

were fully performed pending appeal, the appeal was dismissed as moot. ([Giles v. Horn 

(2002) 100 Cal.App.4th 206,] 227–228; see also Daily Journal Corp. v. County of Los 

Angeles (2009) 172 Cal.App.4th 1550, 1557 [case moot where challenged contract had 

expired, a new bidding process took place, and court could not award the contract to 
9.

disappointed bidder]; Jennings v. Strathmore Public etc. Dist. (1951) 102 Cal.App.2d 

548, 549 [appeal, in action to enjoin and declare invalid a public utility district contract 

after the contract had been awarded and work was fully completed, was moot].)” (Shaw 

v. Los Angeles Unified School District (2023) 95 Cal.App.5th 740, 772–773, first & 

second bracketed insertions added.)

Accordingly, we conclude this case is moot.

Having concluded the case is moot, we next consider the proper disposition. 

Malaga objects to the fact the trial court denied its writ petition rather than dismissing the 

action. According to Malaga, the trial court’s additional discussion of merits-based

issues raises potential issue preclusion concerns and is not in line with standard practice 

in moot cases. The Water Quality Board contends the court could deny the petition rather 

than dismiss the petition, but that any error in format was harmless regardless. Both 

positions assume this court can or should resolve issues with the trial court’s order.

“Ordinarily, of course, when a case becomes moot pending an appellate decision 

‘the court will not proceed to a formal judgment, but will dismiss the appeal.’ ” (Paul v. 

Milk Depots, Inc. (1964) 62 Cal.2d 129, 134.) Appellate courts will occasionally make 

an exception to this automatic dismissal. “Because dismissal of an appeal for mootness 

operates as an affirmance of the underlying judgment or order [citation], such dismissals 

may ‘ “ha[ve] the undesirable result of insulating erroneous or arbitrary rulings from 

review.” ’ ” (In re D.P., supra, 14 Cal.5th at p. 285, first bracketed insertion added.)

In this case, Malaga claims such a risk exists because the trial court discussed 

matters relating to the underlying merits in a section following its determination that the 

case is moot. We do not agree. The trial court’s order makes clear that it based its 

decision on the fact the case is moot. On such a finding, there is no reasonable basis to 

conclude that the trial court’s additional discussion constituted a decision on the merits 

which could be subject to principles of issue or claim preclusion. (See DKN Holdings 

LLC v. Faerber (2015) 61 Cal.4th 813, 824 [“Claim preclusion arises if a second suit 
10.

involves (1) the same cause of action (2) between the same parties (3) after a final 

judgment on the merits in the first suit.”].)

Similarly, “where, as here, an appellate court disposes of an appeal solely on a 

procedural or technical ground that does not reach the merits of the underlying 

controversy, such as mootness, the judgment does not have preclusive effect in 

subsequent litigation.” (Parkford Owners for a Better Community v. Windeshausen 

(2022) 81 Cal.App.5th 216, 229.) As the underlying case is moot, there is no jurisdiction 

over the trial court action or this appeal absent an exception—none of which apply here. 

The proper resolution is thus to dismiss this appeal. As there is no risk of impliedly 

affirming an improper ruling below or entrenching a past order through claim or issue 

preclusion principles, we do not exercise our discretion to return the case to the trial 

court.3

DISPOSITION

The appeal is dismissed as moot. The Water Quality Board shall be awarded its 

costs on appeal.

HILL, P. J.

WE CONCUR:

LEVY, J.

DETJEN, J.

3 Having dismissed this appeal as moot, we do not consider any issues relating to the 

merits of the case—including those raised by Malaga in its briefs regarding the scope of the 

administrative record or the purported errors in the administrative proceedings leading to the 

2014 permit.