Filed 11/22/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

TESORO REFINING & MARKETING 

COMPANY LLC et al.,

Plaintiffs and Appellants,

v.

LOS ANGELES REGIONAL WATER 

QUALITY CONTROL BOARD,

Defendant and Respondent.

B288889

(Los Angeles County

Super. Ct. No. BS160502)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. James C. Chalfant, Judge. Affirmed.

Meyers, Nave, Riback, Silver & Wilson, Gregory J. 

Newmark and Viviana L. Heger for Plaintiffs and Appellants.

Xavier Becerra, Attorney General, Robert W. Byrne, 

Assistant Attorney General, Gary E. Tavetian and John S. 

Sasaki, Deputy Attorneys General, for Defendant and 

Respondent.
2

INTRODUCTION

In this appeal, plaintiffs and appellants Tesoro Refining &

Marketing Company LLC and Tesoro Socal Pipeline Company 

LLC (Tesoro) appeal the denial of a writ of mandate seeking to 

set aside a cleanup and abatement order (CAO) issued by 

defendant and respondent Los Angeles Regional Water Quality 

Control Board (Regional Board).1

Tesoro alleges that the trial judge erred in two ways. First, 

Tesoro claims that the administrative record does not contain 

substantial evidence to support the finding that Tesoro’s 

pipelines were the source of the pollutants. Second, Tesoro, 

claiming that any such discharge must have occurred before 

1970, challenges the imposition of liability as an impermissible 

retroactive application of the Porter-Cologne Water Quality 

Control Act of 1969 (Porter-Cologne Act). (Wat. Code,

§§ 13000―16104.)

2 

The Regional Board responds that there is substantial 

evidence to support the trial court’s decision. Further, the 

Regional Board objects to Tesoro’s introduction of a new claim of 

retroactive application in this proceeding. As a threshold matter, 

the factual question of when Tesoro’s pipelines leaked pollutants 

was never answered because Tesoro never argued to the Regional 

 

1 Tesoro acquired these pipelines effective June 1, 2013. 

Tesoro and the previous owners, BP Pipelines (North America), 

Inc., Atlantic Richfield Company (ARCO) and ARCO Terminal 

Services Corporation (ATSC), shall be referred to collectively as 

“Tesoro.” 

2 All further undesignated statutory references are to the 

Water Code.
3

Board that this action involved an impermissible retroactive 

application of the Porter-Cologne Act. In fact, throughout the 

administrative process, Tesoro denied that its pipelines were the 

source of the pollution. Where, as here, the administrative 

agency has not determined a factual predicate for a defense such 

as this one, administrative exhaustion should preclude the 

argument. Finally, the Regional Board asserts that even if 

exhausted, Tesoro’s retroactivity argument erroneously limits the 

definition of “discharge.” The term “discharge” must be read to 

include not only the initial occurrence, but also the passive 

migration of the contamination into the soil and, ultimately, into 

the groundwater.

We find that the law and substantial evidence support the 

trial court’s denial of Tesoro’s writ of mandate. Substantial 

evidence in the administrative record supports the court’s 

independent judgment that Tesoro’s pipelines were the source of 

the contamination addressed in the CAO. We also find that it 

would have been futile for Tesoro to argue its narrow definition of 

“discharge” before the Regional Board, thereby excusing its 

failure to exhaust. We also hold that, even if substantial 

evidence in the record supported Tesoro’s factual contention that 

the initial discharge from its pipelines necessarily occurred before 

1970, it would still be an actionable discharge under the PorterCologne Act. 

BACKGROUND FACTS

To understand the issues presented here, it is necessary to 

examine the statutory basis for the challenged order and the facts 

surrounding the investigation of and enforcement actions taken 

with the order.
4

A. The Porter-Cologne Act

Enacted in 1969, the Porter-Cologne Act reflects the 

public’s “primary interest in the conservation, control, and 

utilization of the water resources of the state,” and intends to 

advance that interest by ensuring the protection of the “quality of 

all the waters of the state” for the public’s use and enjoyment. 

(§ 13000.) 

The Porter-Cologne Act recognizes that the protection of 

water quality can best be accomplished by statewide regulation 

with regional administration. Thus, under the Porter-Cologne 

Act, the State Water Resources Control Board (State Board) and 

nine regional boards are the principal state agencies for enforcing 

state water pollution law.3 (See WaterKeepers Northern 

California v. State Water Resources Control Bd. (2002) 102 

Cal.App.4th 1448, 1452.) “Waters of the state,” as defined in the 

Porter-Cologne Act, include “any surface water or groundwater 

. . . within the boundaries of the state.” (§ 13050, subd. (e).) 

Section 13304, subdivision (a) establishes the Regional 

Board’s authority to issue a CAO to any person “who has caused 

or permitted, causes or permits, or threatens to cause or permit 

any waste to be discharged or deposited where it is, or probably 

will be, discharged into the waters of the state and creates, or 

threatens to create, a condition of pollution or nuisance.” Upon 

order of a regional board, the discharger shall “clean up the waste 

or abate the effects of the waste, or, in the case of threatened 

 

3 The State Board is solely responsible for setting statewide 

policy concerning water quality control and is the only entity 

authorized to promulgate regulations to implement the Act. 

(State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 

674, 696.) 
5

pollution or nuisance, take other necessary remedial action.” 

(§ 13304, subd. (a).) A regional board can order suspected 

dischargers to investigate to determine the source of the 

pollution. (§ 13267.) A person who objects to the CAO can file a 

petition with the State Board to review that action. (§ 13320, 

subd. (a).) 

B. Tesoro’s Pipelines and the Regional Board’s 

Investigation

In November 2009, the Regional Board received notice from 

the California Department of Public Health (DPH) regarding an 

inquiry from the Wrigley Heights neighborhood in Long Beach, 

California. Residents of the Wrigley Heights neighborhood had 

expressed concern regarding potential vapor intrusion into 

buildings. DPH requested that the Regional Board conduct 

further investigation of petroleum hydrocarbon-impacted soils 

and groundwater contamination at the Oil Operators Inc. (OOI) 

site located nearby. 

OOI is a cooperative association of several companies which

operate oil wells in the Long Beach/Signal Hill area. OOI owns a 

20-acre parcel of land in the City of Long Beach, which is 

bounded by the 405 and 710 Freeways, the Los Angeles River and 

Wardlow Road and Golden Avenue. At this site, OOI operated 

onsite water treatment facilities to treat production brines and 

other fluids recovered during crude oil production. OOI ended all 

operations in 1998, and the property has been undergoing decommissioning since that time.4

 

4 The OOI site has been the subject of remediation under the 

oversight of the City of Long Beach Department of Health and 

Human Services in accordance with a consent decree issued in 

the Los Angeles Superior Court in 2002. Full scale remedial 
6

In February 2010, the Regional Board issued a requirement 

for a technical report pursuant to section 13267 to OOI. The 

Regional Board ordered OOI to complete onsite and offsite 

assessments of dissolved groundwater contamination and to 

determine whether any inhabitants have been potentially 

exposed to health threats from migrating volatile organic 

compounds (VOC’s) contaminant plumes from the OOI site. 

Specifically, OOI was to begin sampling groundwater monitoring 

wells on its site and submit quarterly reports and submit a work 

plan to delineate fully the lateral and vertical extent of 

groundwater contamination.

In March 2010, OOI submitted to the Regional Board a 

proposed work plan and a recitation of current subsurface 

conditions at the OOI site. In relevant part, the report discloses 

the existence of benzene in the northern most portion of the 

property at 45 feet. In addition, the report disclosed the presence 

of 1,2-dichloroethane (1,2-DCA), an additive that had been used 

with leaded gasoline, in groundwater. Benzene was also present 

in the groundwater. Concentrations of both 1,2-DCA and 

benzene exceeded the state’s maximum contaminant levels along 

the eastern portion of the OOI property. 

In May 2010, the Regional Board issued another 

Requirement for a Technical Report pursuant to section 13267 to 

OOI. In this report, the Regional Board directed OOI to 

determine if any offsite inhabitants had been potentially exposed 

to health threats from migrating VOC’s contaminant plumes 

 

activities, including bioremediation of the soils under the site, 

has been ongoing. 
7

beneath the residential properties on the eastern boundary of the 

OOI site, which was the Wrigley Heights neighborhood. 

A plan for additional site assessment by OOI was approved 

in mid-2011 and a series of reports from that work plan were 

submitted to the Regional Board. A multi-depth, site-wide soil 

gas survey was conducted beneath the OOI property and the 

Wrigley Heights neighborhood. Soil gas samples were tested for 

VOC’s (benzene) and methane. High concentrations of benzene 

in soil gas were found to be coincident with higher concentrations 

of benzene in the underlying groundwater. The higher level of 

benzene in soil gas also appeared correlated with buried 

petroleum (gasoline) pipelines on the eastern boundary of the 

OOI site. In addition, the groundwater flow direction onsite was 

established to be to the north-northwest. The observed 

groundwater flow direction along with the pattern and 

distribution of contaminants within the groundwater indicated 

an offsite source to the east of the OOI property. 

The presence of benzene and 1,2-DCA, the location of that 

contamination on the eastern boundary of the OOI site and the 

general groundwater flow direction led the Regional Board to 

suspect that there had been a gasoline discharge. And, the 

location and distribution of the groundwater contamination 

suggested that the source of that discharge was located along 

Golden Avenue. Based on the groundwater data and their 

engineering and scientific expertise, staff at the Regional Board 

narrowed the origination of the discharge to certain pipelines 

that carried gasoline beneath Golden Avenue. 

In January 2012, the Regional Board issued a requirement 

for technical report on pipeline inventory to two companies—

Tesoro and Plains All American Pipeline, L.P. (Plains). Those 
8

two companies owned underground pipelines that might have 

transported gasoline near Golden Avenue. The Regional Board 

ordered these two companies to provide inventories of their 

respective pipelines within one mile of the intersection of Baker 

Street and Golden Avenue in Long Beach and to describe the 

products that those pipelines conveyed. 

The information provided by these two companies provided 

critical facts to the investigators.5 

Plains identified seven line segments within the one-mile 

radius of the investigation area. Plains reported that “all line 

segments have historically only been in crude oil service.” A 

crude oil leak was not consistent with the type of contamination 

found at the subject site. Further, the one segment of Plains’s 

crude oil pipelines in the immediate vicinity of the investigation 

location (Line 52E) was purged and placed out of service for at 

least the last 12 years.6

In Tesoro’s response, it identified six pipelines within a 

one-mile radius of the intersection of Baker Street and Golden 

Avenue. The Tesoro pipelines crossing nearest to the location of 

the detected contamination were Lines 32, 34 and 252. 

 

5 Although Tesoro asserts that there were over 10 pipelines 

in the vicinity of 712 Baker Street, the Regional Board 

investigated the use, history of operation and release and repair 

history for these lines. Records from the state fire marshal’s 

office and the City of Long Beach, Department of Public Works 

showed only Tesoro’s pipelines carried gasoline.

6 Tesoro verified that Plains’s Line 252 was a crude oil 

transport pipeline.
9

Line 252 was initially identified by Tesoro as a wastewater 

line. Tesoro later changed its description of Line 252 as carrying 

gasoline until 1953 and then used for wastewater transport 

thereafter and inactive since 1995. This line is a six-inch 

pipeline. 

Line 32 was an idled 12-inch “crude and refined dark 

products line.” Work was underway to reactivate this line. 

During an inspection of the line in 2011, some “anomalies (dents) 

were identified in the vicinity of Baker Street and Golden 

Avenue,” and those areas of Line 32 were “subsequently bolstered 

with approved pipeline repair methods.” Tesoro denied any 

release from Line 32 at any time.

Line 34 was an active eight-inch diameter diesel and 

gasoline refined products line. A piece of that line had been 

relocated/replaced under the Metropolitan Transit Authority rail 

line in 2010 as a precautionary measure. According to Tesoro, 

there was no “release of product” and the abandoned section was 

filled with mud. According to Tesoro, there was no evidence of a 

release from Line 34. Tesoro denied any release from Line 34 at 

any time.7

Based on these responses, the only pipelines under Golden 

Avenue that had ever transported refined gasoline belonged to 

Tesoro. 

In response to this information, the Regional Board issued 

another requirement for technical report to Tesoro. In that order, 

Tesoro was described as “suspected of being responsible for” a 

discharge of waste beneath Golden Avenue resulting in “gasoline 

 

7 Cal Fire records showed the only record of release on this 

line was a diesel spill in the City of Bellflower in 1990.
10

type hydrocarbon contamination” in the soil and soil vapor. And, 

the order directed Tesoro to prepare and submit a work plan to 

determine the extent of that contamination. 

Tesoro responded by claiming that it was not responsible 

for any gasoline-type hydrocarbon contamination of the soil and 

groundwater at the site. Tesoro flatly denied any leaks from any 

of its pipelines at any time. Tesoro noted that Line 32 had not 

been used for the conveyance of gasoline. And, Tesoro pointed 

out that Line 34 had passed testing on eight different occasions 

and that there was “no evidence of a release from Line 34.”8 

Tesoro also argued that the Regional Board’s data failed to 

support a finding of gasoline contamination.9

The Regional Board requested additional information and 

analysis be conducted through site sampling in response to 

 

8 Tesoro later amended its answers and reported a 1973 leak 

from Line 32 near Golden Avenue about one-half mile from Baker 

Street. The leak was caused by external corrosion. Tesoro also 

reported a two-barrel leak of “unknown material” from Line 34 in 

1990. Again, that leak was caused by external corrosion. The 

location of that release was unknown. 

9 In response to the Regional Board’s order for a soil and soil 

vapor investigation of the area surrounding its pipelines, Tesoro 

proposed placing probes at a single location adjacent to Line 32. 

The Regional Board found that work plan to be deficient and, 

upon further discussion, Tesoro proposed three sampling 

locations. The Regional Board asked Tesoro to expand the extent 

of its proposed investigation to delineate the full extent of 

hydrocarbon impacts in soil, soil vapor and groundwater on both 

sides of BP Line 32 and 34. As of November 2012, no such 

revised work plan was submitted by Tesoro to the Regional 

Board.
11

Tesoro’s arguments. Six water samples and one product sample 

were tested. These tests revealed the presence of 2,2,4-

trimethylpentane (iso-octane, arrowed) and other 

trimethylpentanes, which are blended into gasoline to increase 

octane levels. These tests also revealed the presence of 

n-alkanes, which is suggestive of leaded gasoline. The tests ruled 

out any heavier petroleum products in the sample. Once again, 

the only gasoline pipelines in the area were owned by Tesoro.

Unable to assert that the contamination was not from 

refined products, Tesoro changed its focus and now claimed that 

OOI’s wastewater lines, not Tesoro’s gasoline pipelines, were the 

source of the problem. Citing a 1953 United States Geological 

Survey (USGS) report, Tesoro asserted that OOI’s wastewater 

treatment facility was the source of the contamination.10 

Specifically, Tesoro suggested that OOI accepted waste from 

wells and refineries and then discharged that waste via the sewer 

line or the Los Angeles River discharge line. This refinery waste, 

Tesoro argued, was the source of the gasoline contamination. 

The Regional Board investigated that theory. Business 

records from OOI failed to corroborate the USGS’s description of 

its waste treatment operations. OOI had no records of refinery 

waste water going to the site. The Regional Board, however, 

accepted the possibility that OOI had accepted refinery wastes. 

However, even if OOI accepted refinery wastes at some point in 

the past, the soil, soil gas and groundwater data all pointed to the 

 

10 United States Geological Survey, 1953, Department of the 

Interior. “Native and Contaminated Ground Waters in the Long 

Beach-Santa Ana Area, California,” U.S. Geological Survey 

Water-Supply Paper 1136, Washington, D.C., at pp. 71―75.
12

pipeline corridor as the source of the contamination. If OOI were 

the discharger, the data would have looked different. For 

example, if OOI had discharged refinery wastes into the 

Los Angeles River (as Tesoro contended), then the groundwater 

proximate to the western side of the OOI property would be 

contaminated. Tests of this groundwater, however, were 

negative. Using this and other facts, OOI’s reception of 

wastewater from refineries was ruled out as a source of the 

contamination. 

The Regional Board issued a further report establishing the 

basis upon which it concluded that Tesoro’s pipelines were “a 

discharger and responsible party,” and directed Tesoro to adopt a 

“proactive approach and work together with all the stakeholders 

to address this environmental concern.” 

Tesoro declined to adopt a “proactive approach,” instead 

asserting a new argument to disprove that it was a discharger. 

For the first time, Tesoro claimed that Line 34 did not carry 

gasoline; it had been dedicated to diesel service since 1946. This 

factual claim contradicted the sworn statement originally 

provided by Tesoro. 

Tesoro’s claim that Line 34 only carried diesel also failed to 

comport with other contemporaneous records regarding the 

pipeline and its uses. Cal Fire noted that its records showed that 

Line 34, from the Los Angeles Refinery to Vinvale, was used for 

refined product service. A 1975 City of Long Beach pipeline map 

also showed that Line 34 was in gasoline service.11 And, a 

 

11 Although Tesoro claimed that the “Gaso” designation on 

this 1975 City of Long Beach pipeline map generically applied to 

any refined fuel product and as such could properly designate a 

diesel pipeline, that argument was unsupported by competent 
13

Western Oil and Gas Association, Long Beach-Wilmington 

Harbor area, oil handling facility map, updated on January 1973, 

showed Tesoro as having four-, six-, eight- and twelve-inch 

diameter “refined products lines.” 12 The four- and six-inch lines 

identify segments of Line 252, the 12-inch diameter line is Line 

32 and the eight-inch diameter line is Line 34. 

C. Cleanup and Abatement Order and Appeal to State 

Board

In April 2013, the Regional Board issued a “tentative 

cleanup and abatement order” (TCAO) to Tesoro. The TCAO 

found that Tesoro was responsible for a discharge of waste at the 

site and, that as a result of that discharge, elevated 

concentrations of benzene and other petroleum hydrocarbons 

were found in the soil and groundwater at the site. 

In response, Tesoro submitted extensive comments, adding 

to the hundreds of pages that it had already submitted to the 

Regional Board. Although several arguments were made, at no 

time did Tesoro admit to having caused a discharge from its 

pipelines at any time—either before or after 1970. “We have no 

record of gasoline pipeline leaks from any of the three pipelines 

 

evidence. A City of Long Beach employee noted that “Gaso” on its 

1975 maps referred only to gasoline—not diesel. 

12 Although Tesoro claimed that a Golden Eagle pipeline 

running along the Golden Avenue corridor on the City of Long 

Beach map carried gasoline, the Western Oil and Gas Association 

map does not show any Golden Eagle pipelines running along the 

Golden Avenue corridor. There are Golden Eagle pipelines on the 

1973 map, but they do not run along the Golden Avenue corridor 

and they are identified as “oil” pipelines, not refined product 

pipelines. 
14

that [Tesoro] operates under Golden Avenue.” Nor did it identify 

any other gasoline pipeline that could have been responsible for 

the contamination at the site. Rather, Tesoro argued that “[t]he 

nature of the contaminants and their location points more 

logically to the operations of the Oil Operators, Inc. site.” 

According to Tesoro, “nearby community residents noticed, and 

reported to authorities, several vacuum trucks discharging waste 

[at the OOI site] as late as 2000.”

After considering and responding to these comments, the 

Regional Board issued the final CAO on September 18, 2014. The 

Regional Board ruled out “other possible sources of wastes at the 

site, including the operations of the Oil Operators, Inc. (OOI) 

site.” And, the CAO noted that “[j]ust because [Tesoro] has no 

record of gasoline pipeline leaks from any of the three pipelines 

that [Tesoro] operated under Golden Avenue does not mean that 

a release did not occur. A release can occur even if there is no 

record of it.” Further, the Regional Board accepted the 

information provided by Tesoro and other available records 

showing that Lines 32, 34 and 252 collectively transported crude 

oil, dark refined products, other refined products, including 

gasoline and diesel fuel, and oily water.

Tesoro filed a petition for review with the State Board. 

Tesoro argued (again in contradiction with its initial admissions) 

that its lines were not gasoline lines after 1953 and there was no 

evidence that they leaked at any time. For the first time, Tesoro 

argued that given the historical use of its pipelines for gasoline, 

the CAO constituted an impermissible retroactive application of 

the Porter-Cologne Act. Tesoro argued that the Regional Board 

was required to make a finding that the discharge at issue here 

occurred before 1970, even though Tesoro had not asserted that 
15

position before the Regional Board and the factual basis for 

Tesoro’s retroactivity argument was contradicted by the 

company’s own admissions and other competent evidence in the 

record. 

The State Board took no action on Tesoro’s petition for 

review, and the petition was deemed denied by operation of law 

on January 1, 2016. (See Cal. Code Regs., tit. 23, § 2050.5.)

D. Tesoro’s Writ of Mandate and Trial Court Ruling

Tesoro filed a petition for writ of mandate challenging the 

Regional Board’s issuance of the CAO. 

In its petition for writ of administrative mandate, Tesoro 

argued that the evidence in the record showed that the CAO 

mandated the remediation of discharges that took place, if at all, 

long before the Porter-Cologne Act became effective. Tesoro 

criticized the Regional Board’s failure to make an express finding 

that the discharge occurred after 1970 as required to avoid an 

impermissible retroactive application of the Act.13 Further, 

Tesoro argued that a factual finding of a pre-1970 discharge was 

necessary because “discharge” could not be properly defined to 

encompass pollution that “continues to occur and expand,” as it 

passes from its original location, through the soil and into the 

groundwater. Citing Lake Madrone Water Dist. v. State Water 

Resources Control Bd. (1989) 209 Cal.App.3d 163, 174 (Lake 

Madrone), Tesoro argued that such a definition was contrary to 

the plain meaning of the word. Tesoro also argued that even 

 

13 In response to the Regional Board’s argument that Tesoro 

had not made this argument before the Regional Board and was, 

therefore, precluded from raising this issue judicially, Tesoro 

argued that this jurisdictional question had not been waived, and 

that further exhaustion would have been futile.
16

under the State Board’s definition, the record showed no 

“discharge” had occurred because recent monitoring data showed 

that the contaminant concentrations are trending downward.

The trial court issued its decision on the petition on 

December 12, 2017. The court ruled, based on its independent 

judgment, that the Regional Board’s findings were supported by 

the weight of the evidence.

The trial court, giving the State Board’s interpretation of 

“discharge” in section 13304 considerable deference, defined that 

term to encompass not only the initial event but also to include 

the continuing migration of contaminants “so long as they 

continue to threaten state waters.” This definition, the court 

found, was based not only on the State Board’s expertise in 

hydrology and in knowing what is necessary to maintain water 

quality “by ensuring that the activities are encompassed that 

have an ongoing effect on the quality of the waters of the state,” 

but was consistent with the Act’s intent. Thus, the trial court 

found that the Regional Board had not retroactively applied the 

Porter-Cologne Act to a pre-1970 discharge.14

 

14 The trial court rejected the Regional Board’s claim that 

Tesoro failed to exhaust its administrative remedies by failing to 

assert before the Regional Board that it was retroactively 

applying the Porter-Cologne Act. Citing Buckley v. California 

Coastal Com. (1998) 68 Cal.App.4th 178 (Buckley), the trial court 

held that “ ‘[t]he rule of exhaustion of administrative remedies 

does not apply where the subject matter lies outside of the 

administrative agency’s jurisdiction.’ ” In this case, Tesoro’s 

contention to the State Board that the discharge occurred prior to 

1970 was sufficient to avoid the bar of administrative exhaustion. 
17

The trial court also evaluated the administrative record 

and concluded, based on its independent judgment, that the 

Regional Board had fully and fairly investigated all parties, and 

that the Regional Board properly ruled out other parties as a 

possible source of the waste. Benzene was in the gasoline 

transported by Tesoro in its Golden Avenue pipelines, and the 

maximum benzene concentrations in groundwater were generally 

consistent with this pipeline corridor. The investigation also 

discovered 1,2-DCA and iso-octane indicators of gasoline 

discharge. The highest 1,2-DCA groundwater detections were 

found in wells close to and downgrade from Tesoro’s Lines 32, 34 

and 252. The distribution of these gasoline-related chemicals 

along the eastern edge of the OOI property provided sufficient 

circumstantial evidence that Tesoro and its pipelines along 

Golden Avenue were the source of the pollution. 

Accordingly, the trial court denied Tesoro’s petition and 

entered judgment in favor of the Regional Board on January 10, 

2018.

A timely appeal followed.

DISCUSSION

A. Standard of Review

Section 13330, subdivision (e) requires the trial court to 

exercise its independent judgment in reviewing the CAO issued 

by the Regional Board. The parties both agree that the trial 

court properly used the correct “independent judgment” standard 

of review in this case. Thus, on appeal, we review the lower 

court’s factual determinations under the substantial evidence 

standard. (Coastal Environmental Rights Foundation v. 

California Regional Water Quality Control Bd. (2017) 12 
18

Cal.App.5th 178, 190.) Questions of law and the lower court’s 

legal determinations are reviewed de novo. (Ibid.) 

B. Substantial Evidence Shows Other Possible Sources 

of Gasoline Contamination Were Ruled Out.

Tesoro’s first contention on appeal is that the trial court’s 

finding of Tesoro’s pipelines as the source of the gasoline 

contamination in this instance is not supported by substantial 

evidence in the record. Specifically, Tesoro asserts that the 

Regional Board’s investigation failed to “rule out” other possible 

sources of gasoline contamination.

The trial court, based on its independent judgment, reached 

the conclusion that Tesoro was responsible for the waste 

discharge and that the Regional Board had fairly investigated 

whether OOI or other pipeline operators might be responsible for 

the waste at the site and had properly ruled them out. 

The circumstantial evidence in support of this conclusion is 

overwhelming. The tests conducted on soil, soil gases and 

groundwater at the site point clearly in the direction of gasoline 

as the source of the pollution. These tests detected 1,2-DCA, isooctanes and n-alkanes, common additives used in the production 

of gasoline. In addition, these tests failed to show the presence of 

any heavier-end hydrocarbons, indicative of crude oil. The 

groundwater data also showed that the benzene concentrations 

were highest along the immediate vicinity of Golden Avenue, and 

lower at locations farther away. Thus the plume was roughly 

centered at and aligned with Golden Avenue, between Baker 

Street and where Golden Avenue veers southeast. Soil vapor 

data indicates a track of benzene near Tesoro’s Pipelines 32, 34 

and 252, and the pattern of the benzene demonstrates a pattern 

of an older near-surface release for which the center of the mass 
19

has migrated downward—thus rebutting Tesoro’s theory that the 

waste was released from a deeper source. Tesoro admitted that 

Line 34 operated in this Golden Avenue corridor, and carried 

refined gasoline and reformulated gasoline in its pipelines during 

the relevant period. Tesoro's initial admission of how it used 

Line 34 was corroborated by other records, including a City of 

Long Beach pipeline map and a Western Petroleum Association 

map showing that this pipeline transported gasoline in the 

1970’s.

And, despite considering and studying the issue, the 

Regional Board found no other source of gasoline contamination. 

OOI had no records of ever handling waste from gasoline 

refineries, despite a contrary statement contained in a 

description of OOI’s operations in a 1953 report of the USGS. 

Further, that version of historic events—that OOI processed 

refined waste products and dumped them in the Los Angeles 

River—would not have created the contaminated soil and 

groundwater patterns found on the Golden Avenue corridor. 

Further, Tesoro’s claim that the release was from a source other 

than its pipelines failed to find support in the pattern of benzene 

contamination in the soil and soil vapor. Finally, the 

uncontroverted information in the record is that Plains’s Line 52 

transported only crude oil. The Regional Board’s testing of the 

soil and groundwater in the Golden Avenue corridor ruled out 

crude oil as the source of the contamination. 

This circumstantial evidence constitutes more than 

sufficient evidence upon which the trial court could reasonably 

infer that there was a gasoline discharge along the Golden 

Avenue corridor and that the discharge came from Tesoro’s 

pipelines. 
20

C. Tesoro’s Failure to Exhaust the Allegation that the 

Discharge at Issue Here Occurred Before 1970 that 

Lies at the Heart of the Retroactivity Argument Is 

Excused.

The factual predicate upon which Tesoro’s entire 

retroactivity argument rests—i.e., that the discharge from its 

pipeline occurred only before 1970—was never determined by the 

Regional Board. Tesoro never admitted that its pipelines leaked 

gasoline but that these leaks occurred before 1970. Nor, as a 

corollary to that admission, did Tesoro assert that the CAO 

constituted a retroactive application of the Porter-Cologne Act in 

any of its numerous and voluminous submissions. Even after the 

tentative CAO was issued, and the Regional Board invited Tesoro 

to “ensure that all evidence and comments that you wish staff 

and/or the Executive Officer to consider,” Tesoro did not argue

that section 13304 was being impermissibly applied to a pre-1970 

discharge. The Regional Board was never presented with that 

argument and, as a result, the CAO includes no findings on that 

issue. 

Tesoro’s failure to raise this argument is understandable. 

To have claimed a pre-1970 initial discharge would have required 

a repudiation of Tesoro’s numerous denials of any discharges 

from its pipelines. Tesoro’s failure to assert this argument, 

however, has resulted in a paucity of evidence in the 

administrative record to support its claim that the discharge at 

issue here occurred before 1970. In fact, the record contains 

substantial evidence that might have supported the Regional 

Board reaching a very different conclusion. Tesoro’s pipelines 

carried gasoline along the Golden Avenue corridor well into the 

1970’s. And, although the samples suggested leaded components 
21

to the gasoline as the source of the pollution at the site, leaded 

gasoline was in use well after 1970. The weathered nature of the 

benzene suggests a historic discharge, but does nothing to 

suggest how many years ago the discharge occurred. The record 

also establishes that Tesoro made repairs and experienced 

discharges from certain of these pipelines after 1970. This 

evidence, had the issue been raised, could have supported a 

finding that the initial discharges occurred after 1970 and that 

the CAO at issue here is not a retroactive application of the 

Porter-Cologne Act. 

As there were no arguments asserted and no findings made 

regarding the timing of the initial leak from Tesoro’s pipelines, 

the question of retroactivity is somewhat hypothetical. The 

Regional Board objects to Tesoro being allowed to make a 

retroactivity argument to the trial court because that defense and 

its factual predicate were not administratively exhausted. The 

trial court excused Tesoro’s failure to exhaust because “ ‘[t]he rule 

of exhaustion of administrative remedies does not apply where 

the subject matter lies outside the administrative agency’s 

jurisdiction.’ ” We agree that the exhaustion doctrine does not 

preclude a judicial determination of Tesoro's retroactivity 

argument, but reach that conclusion on different grounds. 

A party aggrieved by a decision of an administrative agency 

must exhaust all available administrative remedies before 

seeking judicial review of that decision. (Coachella Valley 

Mosquito & Vector Control Dist. v. California Public Employment 

Relations Bd. (2005) 35 Cal.4th 1072, 1080.) The doctrine of 

exhaustion of administrative remedies precludes judicial review 

of issues, both legal and factual, that could have been raised but 

were not raised, at the administrative level. (Coalition for 
22

Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 

1197.) The exhaustion requirement is not a matter of judicial 

discretion; it is a jurisdictional prerequisite to resort to the 

courts. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 

280, 293.)

The exhaustion doctrine is principally grounded on 

concerns favoring administrative autonomy and the idea that 

courts should not interfere with an agency determination until 

the agency has reached a final decision. (McAllister v. County of 

Monterey (2007) 147 Cal.App.4th 253, 275.) Of equal importance 

is the notion that courts should not intervene in an 

administrative dispute until the expertise of the administrative 

agency can be employed to develop a complete record. (Ibid.) 

There are, however, exceptions to the exhaustion doctrine. (Ibid.) 

One such exception exists where a party claims that the 

subject matter lies outside of the administrative agency’s 

jurisdiction. (McAllister v. County of Monterey, supra, 147 

Cal.App.4th at p. 275; see also Buckley, supra, 68 Cal.App.4th

178.) Tesoro argued to the trial court that it was not required to 

exhaust its claim that the discharge at issue in this proceeding 

had occurred before 1970 and, therefore, was barred because that 

argument essentially claimed that the Regional Board did not 

have subject matter jurisdiction. The trial court agreed.

That ruling was erroneous as a matter of law. In Buckley, 

the question was whether the Coastal Commission could enforce 

a permitting scheme over the portion of a lot that was legally 

exempt from the permit requirement. (See Buckley, supra, 68 

Cal.App.4th at 189.) The plaintiffs were not required to exhaust 

a claim over which the Coastal Commission had no authority in 

the first instance. (Id. at pp. 189―190.) There was no factual 
23

dispute between the Coastal Commission and the plaintiffs—the 

only question was one of law, i.e., the Commission’s legal 

authority to take any action regarding the front part of Buckley’s 

lot.

Unlike in Buckley, Tesoro’s claim that the Regional Board 

acted outside of its jurisdiction depends upon a resolution of a 

contested factual issue. Tesoro’s argument regarding the proper 

statutory interpretation of the term “discharge,” rests on the 

contention that the initial discharge causing the contamination of 

the soil and groundwater on the Golden Avenue corridor occurred 

before 1970—a factual allegation that was subject to dispute and 

that was never determined by the Regional Board. It was never 

adjudicated by the Regional Board because the claim of 

retroactivity and its factual predicate were never raised by 

Tesoro. In fact, Tesoro consistently denied ever having 

discharged any gasoline from its pipelines—at any time. 

Where, as in this case, the jurisdictional question rests on 

disputed facts, administrative exhaustion precludes the litigation 

of those facts for the first time in court. (See United States v. 

Superior Court of Los Angeles County (1941) 19 Cal.2d 189, 196.) 

This requirement serves the intended purpose of the exhaustion 

of administrative remedies—“to reduce the burden on courts 

while benefiting from the expertise of an agency particularly 

familiar and experienced in the area.” (Styne v. Stevens (2001) 26 

Cal.4th 42, 55 & fn. 6, 58.) The Regional Board has far more

expertise in chemistry, soil and soil gases, hydrology and other 

scientific areas than the court. These experts are uniquely 

qualified to determine the origin and timing of the discharge of 

gasoline from Tesoro’s pipelines, or to admit an inability to 

marshal sufficient facts and, thereafter, to construe the definition 
24

of “discharge” to encompass a historic contamination that 

continues to pollute soils and groundwater. (Morton v. Superior 

Court (1970) 9 Cal.App.3d 977, 982 [“It lies within the power of 

the administrative agency . . . to determine, in the first instance 

and before judicial relief may be obtained, whether a given 

controversy falls within its granted jurisdiction.”].) 

One of Tesoro’s other claimed reasons for not asserting its 

retroactivity argument in the administrative proceeding, 

however, provides a legal excuse for that failure. Tesoro claims 

that it would have been futile to adjudicate the date on which the 

initial discharge occurred to argue that the law was being applied 

retroactively. We agree.

Futility is a narrow exception to the general rule requiring 

exhaustion of administrative remedies. (Sea & Sage Audubon 

Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 418.) It 

applies only where the petitioner can “ ‘ “positively state” ’ ” that 

the agency had “ ‘ “declared what its ruling will be in a particular 

case.” ’ ” (Id. at p. 418, italics in original; Coachella Valley 

Mosquito & Vector Control Dist. v. California Public Employment 

Relations Bd., supra, 35 Cal.4th at p. 1081.) 

In this case, the Regional Board listened, extensively 

researched and carefully considered the myriad of arguments 

made by Tesoro during this investigation. And, while it never 

was called upon to declare what its ruling would have been if 

Tesoro had admitted a pre-1970 discharge from its pipelines, the 

Regional Board would have been bound by over 40 years of State 

Board precedents in defining discharge. In In re Atchison, 

Topeka and Santa Fe Railway Company (Order No. WQ 74-13, 

Aug. 15, 1974) 1974 Cal. Env. Lexis 2 at p. *9 (Cal.St.Wat.Res. 

Bd.) (Atchison, Topeka) and in two other cases thereafter, the 
25

State Board held that a continuous and ongoing movement of 

contamination from a source through the soil and into the 

groundwater is a discharge to waters of the state and subject to 

regulation. (See In re Zoecon Corp. (Order No. WQ 86-2, Feb. 20, 

1986) 1986 Cal. Env. Lexis 4 at p. *3 (Cal.St.Wat.Res.Bd.)

(Zoecon Corp.); Atchison, Topeka, supra, 1974 Cal. Env. Lexis 2 at

p. *9; see also In re Spitzer (Order No. WQ 89-8, May 16, 1989) 

1989 Cal. Env. Lexis 11 at p. *17 (Cal.St.Wat.Res.Bd.) (Spitzer) 

[“[D]ischarge continues as long as pollutants are being emitted at 

the site.”].) In fact, it cited to this precedent as the basis for the 

order.

While not having made an express determination of the 

issue, the Regional Board viewed the pollution at the site as 

possibly resulting from an older, but ongoing discharge. For 

example, Line 252 had stopped carrying gasoline in 1953. If this 

line had been the original source of the waste, the Regional Board 

necessarily, although not expressly, held that migration of waste 

from that pipeline through the soil and into the groundwater 

below supported the imposition of liability on Tesoro, even if the 

pipeline initially ruptured before 1970. 

As it would have been futile for Tesoro to assert the factual 

bases and to present a legal argument in support of its

retroactivity claim, that omission is excused. 

D. The State Board’s Definition of Discharge Is Correct.

Tesoro agrees that, if the State Board’s interpretation of 

the term “discharge” as used in section 13304 is correct, then the 

findings in the CAO establish that there is an ongoing discharge 

of waste at the site. Tesoro’s only argument is that the State 

Board’s interpretation of that term is wrong. 
26

The State Board has defined the term “discharge” in this 

statutory provision consistently for the past 40 years to refer to 

the entire time during which the discharged waste remains in the 

soil or groundwater and continues to impact or to threaten the 

groundwater. (See Zoecon Corp., supra, 1986 Cal. Env. Lexis 4 at 

p. *3; Atchison, Topeka, supra, 1974 Cal. ENV. LEXIS 2 at p. *9; 

see also Spitzer, supra, 1989 Cal. Env. Lexis at p. *17

[“[D]ischarge continues as long as pollutants are being emitted at 

the site.”].) 

As stated in those decisions, discharge refers to any 

movement of waste from soils to groundwater and from 

contaminated to uncontaminated groundwater, and continues to 

occur if the waste continues to move through the soils and 

groundwater and poses a threat of further degradation to 

groundwater. (Atchison, Topeka, supra, 1974 Cal. Env. Lexis 2 at 

p. *9.) An actionable discharge, therefore, encompasses not 

simply the initial episode of contamination, but rather includes 

the time during which the waste uncontrollably flows or migrates 

from its source, through the soil, and into and within the 

groundwater. (See Zoecon Corp., supra, 1986 Cal. Env. Lexis at 

p. *3; Atchison, Topeka, supra, 1974 Cal. Env. Lexis at 

pp. *9―*10.) 

Where agencies interpret statutes within their 

administrative jurisdiction, such rulings constitute “ ‘a body of 

experience and informed judgment to which courts . . . may 

properly resort for guidance.’ ” (Yamaha Corp. of America v. 

State Bd. of Equalization (1998) 19 Cal.4th 1, 12―14.) Judicial 

deference is particularly appropriate in cases, such as the one 

here, where the agency has “ ‘expertise and technical 

knowledge’ ” and “ ‘has consistently maintained the 
27

interpretation in question.’ ”

15 (Id. at pp. 12―13.) (See also 

DiGiorgio Fruit Corp. v. Department of Employment (1961) 56 

Cal.2d 54, 61―62 [“Consistent administrative construction of a 

statute over many years . . . is entitled to great weight and will 

not be overturned unless clearly erroneous.”]; Communities for a 

Better Environment v. State Water Resources Control Bd. (2003) 

109 Cal.App.4th 1089, 1107 [“[W]e extend considerable deference 

to an administrative agency’s interpretation of its own 

regulations or the regulatory scheme which the agency 

implements or enforces. The agency’s interpretation is entitled to 

great weight unless unauthorized or clearly erroneous.”].)

Going beyond judicial deference to the agency’s longstanding administrative construction of its statutes, we find that 

the Regional Board’s definition of discharge to include ongoing 

movement of contaminants through the soil and into the 

groundwater is consistent with the plain language of the statute 

(See Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 

222, 230 [In determining the intent of the Legislature, “ ‘[the]

court turns first to the words themselves for the answer.’ ”].) In 

Lake Madrone, supra, 209 Cal.App.3d at page 174, the court 

determined that “the ordinary import” of the term “discharge” is 

 

15 Tesoro’s contention that this interpretation is 

“jurisdictional,” and ought, therefore, to be accorded little weight 

is without merit. The statutory interpretation issue here does 

not concern the scope of the agency’s jurisdiction. Section 13304 

clearly confers jurisdiction on the Regional Board to issue CAO’s 

with regard to ongoing discharges of waste into waters of the 

state. The question posed by the definition of “discharge” is 

simply whether the Regional Board’s findings in this case support 

the existence of such an ongoing discharge.
28

“ ‘to relieve of a charge, load or burden; . . . to give outlet to; pour 

forth.’ ” That definition is entirely congruent with the definition 

used by the State Board in this case. Where, as here, a pipeline 

leak puts forth or emits gasoline into the soil, and that

unremediated gasoline waste continues to pour forth or to emit 

chemicals forming a toxic plume that actively threatens to pollute 

otherwise uncontaminated groundwater, the term “discharge” 

necessarily encompasses this entire period. 

Tesoro’s argument that the discharge ends at the moment 

the waste is released into the soil was not mandated by Lake 

Madrone. As correctly noted by the trial judge, the issue 

presented in Lake Madrone was when the discharge began, not 

necessarily when it ended. Further, using the definition used in 

Lake Madrone, discharge is properly interpreted to embody the 

entire period during which pollution is introduced into the 

environment and thereafter actively migrates so as to threaten to 

pollute or to pollute groundwater.

Tesoro’s reliance on Consumer Advocacy Group, Inc. v. 

Exxon Mobil Corp. (2002) 104 Cal.App.4th 438 (Consumer 

Advocacy) is misplaced. In that case, the court addressed the 

meaning of Proposition 65 and its provision that no business 

shall knowingly “discharge or release” a chemical known to the 

state to cause cancer or reproductive toxicity where it passes or 

probably will pass into a source of drinking water. And, the 

question presented was whether passive migration of prohibited 

chemicals from soil to groundwater would constitute a separate 

“discharge or release.” (Id. at p. 450.) Consumer Advocacy did 

not consider or address the issue of whether, under Proposition 

65 or any other law, the migration of chemicals within the soil 

thereafter contaminating groundwater may be considered part of 
29

a single, continuous discharge of those chemicals from their 

source. In that case, in fact, there was no evidence that the 

chemicals had moved out of a confined space when they simply 

moved from “one point to another” within soil. (Consumer 

Advocacy, at p. 450.) As those facts are clearly distinguishable 

from the facts presented here, Consumer Advocacy provides no 

support for Tesoro’s argument.

Nor does the State Board’s definition of “discharge” conflict 

with People ex. rel Younger v. Superior Court of Alameda County

(1976) 16 Cal.3d 30 (Younger). In Younger, the Supreme Court 

held that a deposit of oil, for purposes of determining a penalty 

amount under section 13350, occurs on the day that the oil was 

deposited and not on each day the oil remains in those waters. 

(Id. at p. 44.) The statutory term, statutory scheme, and overall 

purpose of the statute in that case are entirely different from the 

situation presented in this appeal.16 In fact, the relevant statute 

in this appeal, section 13304, uses both the terms “deposit” and 

“discharge” in authorizing the issuance of a CAO. Were these 

terms synonymous, there would have been no need for them both 

to be used. At least for section 13304, therefore, “deposit” and 

 

16 Section 13350 was created to deter chronic or continuous 

violations, i.e., whether a person causes a single oil spill that 

continues for multiple days, or separate spills on multiple days. 

(Younger, supra, 16 Cal.3d at pp. 43―44.) This deterrent purpose 

was best effectuated by imposing liability for each day on which 

oil was actually deposited in the waters of the state. (Id. at 

p. 44.) In this case, however, section 13304 does not impose a 

monetary penalty and its purpose is not simply to deter 

continuous or chronic dischargers. Its purpose is to ensure the 

effective remediation of discharges of waste that impact or 

threaten to impact state waters.
30

“discharge” must be construed as referring to something 

different. (See Moyer v. Workmen's Comp. Appeals Bd., supra, 10 

Cal.3d at p. 230 [“a construction making some words surplusage 

is to be avoided].”)

Nor does the State Board’s definition of discharge to 

include the continuous action of passive migration of 

contaminants through the soil and into groundwater fail to 

harmonize with the federal Comprehensive Environmental 

Response Compensation and Liability Act (CERCLA) case law. 

CERCLA imposes liability for response costs and damages 

associated with certain “releases” or “threatened releases” of 

hazardous substances. (42 U.S.C. § 9607(a).) In Carson Harbor 

Village, Ltd. v. Unocal Corp. (9th Cir. 2001) 270 F.3d 863, 887

(Carson Harbor), the court held that passive migration of 

contaminants through soil is not “disposal” within the meaning of 

42 United States Code section 9607(a). That holding, however, 

concerned different language appearing in a different statute. 

The term “disposal” is entirely absent from section 13304. And, 

as with Consumer Advocacy, the court in Carson Harbor

addressed only whether the migration of contaminants through 

the soil—in and of itself—was actionable. In CERCLA, the mere 

disposal of hazardous substances does not give rise to liability 

unless the disposal results in an actual or threatened release into 

the environment. (Pakootas v. Teck Cominco Metals, Ltd. (9th 

Cir. 2006) 452 F.3d 1066, 1077.) Moreover, to the extent that 

CERCLA is relevant to the statutory construction question 

presented here, the term “release” as used in that federal 

statutory scheme has been interpreted to include the passive 

migration of hazardous substances. (Id. at p. 1075.) In Pakootas, 

the Ninth Circuit held that the subsequent leaching of hazardous 
31

substances into the environment, after the defendant had 

disposed of the substances in the Columbia River, was a release 

within the meaning of CERCLA. (Id. at pp. 1068―1069.)

The Regional Board’s application of the State Board’s 

definition of “discharge” to encompass a continuous process—

from initial leak to the ongoing process of contaminating soils 

and groundwater through the process of migration of toxic 

chemicals into a plume from pipeline to groundwater—will best 

attain the legislative purpose of the Porter-Cologne Act. (See 

Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 

645 [“The fundamental rule of statutory interpretation is that the 

court should ascertain the intent of the Legislature so as to 

effectuate the purpose of the law.”].) 

The purpose of section 13304 is to authorize a regional 

board to issue a CAO to any person “who has caused or permitted 

. . . any waste to be discharged or deposited where it is, or 

probably will be, discharged into the waters of the state.” 

(§ 13304, subd. (a).) As these words amply demonstrate, the 

Legislature sought to address the discharge of waste into the 

waters of the state—including the groundwater. As the preamble 

to the Act states, “[t]he Legislature finds and declares that the 

people of the state have a primary interest in the conservation, 

control, and utilization of the water resources of the state, and 

that the quality of all the waters of the state shall be protected 

for use and enjoyment by the people of the state.” (§ 13000.)

The State Board’s interpretation of the term “discharge,” as 

referring to the entire flow of the discharged waste from its origin 

to the groundwater advances the legislative purpose of protecting 

the quality of the water of the state. By contrast, the truncated 

construction of discharge proposed by Tesoro, i.e., to focus only on 
32

the initial release of the waste, would frustrate the Legislature’s 

express intent. By leaving—as is the case here—a plume of 

uncontrolled contamination currently threatening the 

groundwater of the state unaddressed, Tesoro’s proposed 

definition fails to effectuate the purpose of section 13304.17 

 

17 Tesoro’s argument that the legislative history of section 

13304 supports a narrow interpretation of “discharge” is based, in 

part, on a portion of a letter written by the State Board to the 

California Manufacturers Association. That letter sought to 

clarify when a “threatened discharge” from runoff from a mine 

could be claimed; it offered nothing by way of explanation as to 

when a past discharge ended. It is this latter question that is at 

issue in this appeal. As for the statement to the Assembly 

Committee on Health (ACH), the State Board’s recognition that a 

discharge of waste into a small space, such as a ditch, may end 

once the waste is poured or dumped in no way conflicts with 

discharge being defined to encompass an entire migration of 

discharged waste from its origin, through the soil and into and 

within groundwater. Where discharges are transitory or have a 

broken flow path between the point of discharge and the point of 

pollution, it might be argued that current law would not reach 

that situation. In the present case, however, the substantial 

evidence in the record showed an uninterrupted flow of waste to 

groundwater. The Board’s observations to ACH, therefore, have 

no application to this case.
33

DISPOSITION

The judgment is affirmed. Respondent shall recover its 

costs on appeal.

CERTIFIED FOR PUBLICATION

JONES, J.*

We concur:

EDMON, P.J.

DHANIDINA, J.

 

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California

Constitution.