Bull Field, LLC v. Merced Irrigation Dist.

Filed 11/18/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

BULL FIELD, LLC, et al., B322603

Plaintiffs and Appellants, (Merced County
Super. Ct. No. 1CV-02453)
v.

MERCED IRRIGATION DISTRICT,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Merced
County. Brian L. McCabe, Judge. Affirmed.
Whitney, Thompson & Jeffcoach, Timothy L. Thompson,
Nikole E. Cunningham; McCormick, Barstow, Sheppard, Wayte
& Carruth and Scott M. Reddie for Plaintiffs and Appellants.
Duane Morris, Thomas M. Berliner, Jolie-Anne S. Ansley;
Miller Starr Regalia and Matthew C. Henderson for Defendant
and Respondent.
_________________________________
 Appellants Bull Field, LLC, Barley, LLC and Colburn Hills
Ranch, LLC (Appellants) appeal from a judgment denying their
petition for a writ of mandate (Petition). Appellants sought an
order compelling respondent Merced Irrigation District (District)
to sell them surplus surface water for the 2019 water year.
Appellants’ farmland is outside the District, but within the same
groundwater basin as the District’s service area. The District
authorized the sale of surplus water to out-of-district users for
2019 but denied Appellants’ application to purchase such water.
The District claimed, and the trial court found, that the
District’s general manager denied Appellants’ applications to
purchase surplus surface water because the District had a history
of difficult dealings with Appellants’ manager. Substantial
evidence supports that finding. The District acted within its
discretion in making its decision on this ground, and we therefore
affirm.
BACKGROUND
1. The Parties
The District provides irrigation water to farmers within its
approximately 164,000 acres of service territory pursuant to its
statutory obligations. (See Wat. Code, §§ 20513, 20560.)1 Most of
the District’s water comes from the Merced River, which the
District distributes through a conveyance system of canals,
irrigation ditches, and natural waterways.
Appellants Bull Field, LLC and Barley, LLC own or lease
land outside the District but adjacent to the District in what the
parties refer to as the District’s “sphere of influence.” That

1
Subsequent undesignated statutory references are to the
Water Code.

2
sphere encompasses land that is within the same groundwater
basin as the District’s service territory.2 The District’s main
canal runs through an almond orchard belonging to Appellants
that is located outside the District’s boundaries.
2. The District’s Decision to Sell Surplus Surface
Water in 2019
When sufficient surface water is available in a particular
year, the District’s board may authorize the sale of surplus water
to out-of-district users. (§ 22259.) The District decided to offer
such surplus water for sale in 2019.
The District’s decision was described in a document entitled
the “2019 Irrigation Season Water Supply Implementation Plan”
(the 2019 Plan), which the District’s board approved in a meeting
on March 5, 2019. The approved plan called for out-of-district
sales at a transfer price of $100 per acre foot of water.
In implementing the 2019 Plan, the District’s objectives
were to “[m]aintain equitable service to [District] growers,”
“[m]eet [the District’s] reservoir carryover storage goal at the end
of the season,” and “[c]ontrol and properly account for all water
delivered and conveyed through [the District’s] facilities.” The
2019 Plan also identified various guidelines to achieve these
objectives. One of the identified guidelines was “Surface Water

2 Appellant Colburn Hills Ranch, LLC (Colburn)
apparently also owns land located within the District. The trial
court found that no right by Colburn to purchase surface water
distributed within the District was at issue in this case, and that
Appellants’ Petition sought only an order compelling the sale of
surface water outside the District. Appellants do not dispute that
finding on appeal. We therefore refer to “Appellants” generally
without distinguishing among them.

3
Allocation Management.” In connection with that guideline, the
plan explained that “there is no limiting surface water allocation
for the 2019 irrigation season.”
The District announced its decision to sell surplus water in
a press release issued on March 6, 2019, the day after the board’s
meeting. The press release stated that “[t]here will be no
restrictions on surface-water allocations this year, and water
transfers to lands within [the District’s] Sphere of Influence (SOI)
were approved.” The press release also stated that “[g]rowers
within [the District’s] SOI may execute water transfer
agreements and receive [District] surface water for $100 per acre
foot.”
3. Communications Between the District and
Appellants Concerning the Sale of Surplus
Water
On March 7, 2019, the day after the District’s press release,
the District’s general manager, John Sweigard, left a telephone
message for Appellants’ manager, Michael Thomason. The
message stated that Sweigard did not have authorization from
the District’s board to sell “transfer water” to Thomason or his
entities.
Thomason testified that he was surprised by the message
because Appellants had not yet submitted any application and
Appellants had purchased surplus water from the District for
many years without objection or conditions. Despite Sweigard’s
message, Thomason submitted applications on behalf of
Appellants to purchase surplus water. After Thomason had
submitted those applications, Sweigard left a second voicemail
message for Thomason stating that the board had not approved

4
transfers to any of Thomason’s entities and that Appellants’
applications would not be approved.
Sweigard testified that his reference to the lack of board
approval in his two voice messages did not imply that the board
was required to approve the decision to deny Appellants’
applications. Rather, Sweigard meant that the board was the
District’s “ultimate authority,” but that he, as general manager,
was exercising the authority given to him to deny Appellants’
applications. Sweigard testified that he made that decision
himself because of the “multiplicity, scope, and repetitive nature
of the disputes between the District and [Appellants],” which he
stated “take up an undue proportion of expense, staff time, and
attention.”
Following a subsequent exchange of letters by counsel for
Appellants and the District, Appellants filed their Petition on
June 14, 2019.
4. Proceedings in the Trial Court
The trial court initially set a trial date of September 25,
2019, which it later continued to October 28, 2019. On
October 10, 2019, the trial court held a hearing on a discovery
dispute related to the District’s unclean hands defense. That
defense focused on the District’s claim that, after the District had
denied Appellants’ applications to purchase surplus water,
Appellants had made unauthorized diversions of water from the
District’s main canal. After the hearing, the trial court granted
the District’s discovery motion and continued the hearing on
Appellants’ Petition to February 28, 2020.
On February 14, 2020, just 14 days before the hearing on
Appellants’ Petition, Appellants filed an ex parte application
seeking a continuance of the hearing. The trial court denied the

5
request. Along with the denial the trial court issued an order
directing briefing for the hearing. The order instructed
Appellants to file a brief by February 19, 2020, addressing: “[a]ll
facts and legal authority supporting their contention that [the
District] ‘has a present and ministerial duty to supply water to
[Appellants],” and “[a]ll facts and legal authority supporting
[Appellants’] contention on whether or not the denial of
[Appellants’] water application, as alleged in [the Petition], was
made as the result of a proceeding in which by law a hearing is
required to be given, evidence is required to be taken and
secretion [sic] in the determination of facts is vested in the
[District] Board.”
Appellants filed their brief on February 19, 2020, and the
District subsequently filed a response. The trial court then heard
oral argument on February 28, 2020.
On May 28, 2020, the trial court issued a 153-page ruling
denying Appellants’ Petition. Following an exhaustive review of
the written evidence, the trial court found that Appellants had
failed to prove that the District had a ministerial duty to sell
them surplus water. The trial court also found that the District’s
decision to deny Appellants’ applications to purchase surplus
water was not arbitrary or capricious.
DISCUSSION
1. Appellants’ Petition and this Appeal Are Moot
Appellants’ Petition sought an order compelling the District
to sell them water pursuant to the District’s 2019 Plan. There is
no dispute that the 2019 Plan applied only to the distribution of
water for the 2019 water year, which ended in October 2019.
Appellants acknowledge that the 2019 season is over.
However, they request that this court nevertheless exercise its

6
discretion to consider the appeal because the issues are “capable
of repetition yet evading review.”
This court has discretion to consider an appeal in a case
that is moot if the case “ ‘ “presents an issue of broad public
interest that is likely to recur” ’ ” or “ ‘ “when there may be a
recurrence of the controversy between the parties.” ’ ” (Rudick v.
State Bd. of Optometry (2019) 41 Cal.App.5th 77, 88–89.) The
legal issue presented here—whether the District had an
obligation to sell surplus water to a particular out-of-district user
once its board had approved sales of surplus water—is of public
interest and apparently has not been addressed in any reported
decision. Moreover, it is conceivable that the same dispute may
arise between these same parties in a future water year. We
therefore exercise our discretion to consider the merits of the
appeal.3

3 Despite acknowledging that their appeal is moot,
Appellants devote most of their argument on appeal to the
claimed unfairness of the proceedings in the trial court. As
alternative relief, Appellants request that, in light of this alleged
unfairness, we reverse and remand the case to the trial court for
further consideration. The trial court’s procedural decisions are
case-specific and present no issue of public importance that is
likely to evade review. However, Appellants’ procedural
arguments bear upon the deference that we should give to the
trial court’s factual findings. As discussed below, in deciding
whether District acted in an arbitrary or capricious manner, we
review any “foundational” factual findings under the deferential
substantial evidence standard. If, as Appellants argue, the trial
court in fact unfairly excluded evidence supporting Appellants’
claims, that could affect the fairness and reliability of the trial
court’s factual findings. That result could in turn affect whether

7
2. Governing Law and Standard of Review
Appellants’ Petition sought a writ of mandate under the
authority of Code of Civil Procedure section 1085. That section
authorizes a court to issue such a writ “to any inferior tribunal,
corporation, board, or person, to compel the performance of an act
which the law specially enjoins, as a duty resulting from an
office, trust, or station, or to compel the admission of a party to
the use and enjoyment of a right or office to which the party is
entitled, and from which the party is unlawfully precluded by
that inferior tribunal, corporation, board, or person.” (Code Civ.
Proc., § 1085, subd. (a).)
To obtain writ relief under this section, a petitioner must
show “ ‘(1) a clear, present and usually ministerial duty on the
part of the respondent . . . ; and (2) a clear, present and beneficial
right in the petitioner to the performance of that duty.’ ” (Santa
Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th
525, 539–540, quoting Baldwin-Lima-Hamilton Corp. v. Superior
Court (1962) 208 Cal.App.2d 803, 813–814.) A writ may issue to
correct an agency’s abuse of discretion “whether the action being
compelled or corrected can itself be characterized as ‘ministerial’
or ‘legislative.’ ” (Santa Clara County, at p. 540.) However, in
either case, mandamus may issue only to compel the performance
of an act “which the law specially enjoins.” (Code Civ. Proc.,
§ 1085, subd. (a); Faulkner v. California Toll Bridge Authority
(1953) 40 Cal.2d 317, 326.) Thus, mandamus “will not lie to

this court can fairly defer to those findings. We therefore
consider Appellants’ procedural claims as well as their legal
arguments. In light of our disposition, there is no need to
consider the propriety of remanding an admittedly moot case to
require further proceedings in the trial court.

8
control discretion within the area lawfully entrusted to the
administrative agency.” (Faulkner, at p. 326.)
In reviewing an agency’s “quasi-legislative” decision, “the
trial court does not inquire whether, if it had power to act in the
first instance, it would have taken the action taken by the
administrative agency. The authority of the court is limited to
determining whether the decision of the agency was arbitrary,
capricious, entirely lacking in evidentiary support, or unlawfully
or procedurally unfair.” (Fullerton Joint Union High School Dist.
v. State Bd. of Education (1982) 32 Cal.3d 779, 786 (Fullerton).)
On appeal, we review the trial court’s decision de novo under the
same standard, except where the trial court made “ ‘foundational
factual findings.’ ” (Abatti v. Imperial Irrigation Dist. (2020) 52
Cal.App.5th 236, 250 (Abatti), quoting City of Arcadia v. State
Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1409.)
In that case, the trial court’s findings of fact “ ‘are binding on
appeal if supported by substantial evidence.’ ” (Abatti, at p. 250,
quoting City of Arcadia, at p. 1409.)
3. The Trial Court Did Not Abuse Its Discretion in
Its Procedural Orders
Appellants argue that they were deprived of an opportunity
to argue all the relevant issues before the trial court issued its
ruling on their Petition. Appellants claim that the trial court set
a short briefing schedule on limited issues without giving
Appellants the opportunity to file a reply brief. They argue that
because these limited issues did not include the question of
whether Sweigard acted arbitrarily and capriciously in declining
to sell them surface water, Appellants believed that this issue
would be addressed in a future hearing, and therefore decided not
to present all their evidence. Appellants claim that this

9
abbreviated schedule and briefing order therefore deprived them
of an opportunity to argue their “arbitrary and capricious” theory.
For the same reasons, Appellants claim that the trial court erred
in denying their motion for a new trial on the ground of surprise.
We find no abuse of discretion in the trial court’s
procedural rulings. Appellants’ own conduct caused the
abbreviated time for briefing and the consequent lack of a reply
brief. As discussed above, after several continuances, the hearing
on Appellants’ Petition was scheduled for February 28, 2020.
Appellants acknowledge that they intended to have their Petition
heard under the rules applicable to noticed motions. This meant
that, absent an order specifying a different schedule, their
moving papers had to be filed and served 16 court days before the
hearing, or by February 4, 2020. (Code Civ. Proc., § 1005, subd.
(b); Cal. Rules of Court, rule 3.1300(a).)4 Rather than filing
papers supporting their Petition on that date, Appellants waited
until February 3, 2020, to seek opposing counsel’s agreement to
continue the hearing. When that attempt was unsuccessful,
Appellants then waited until February 14th to move ex parte for
a continuance.
The trial court acted within its discretion in denying the
motion for a continuance.5 Appellants’ stated ground for the

4February 12th and February 17th were both court
holidays. (See Code Civ. Proc., § 135; Gov. Code, § 6700.)
5 “The granting or denying of a continuance is a matter
within the court’s discretion, which cannot be disturbed ‘on
appeal except upon a clear showing of an abuse of discretion.’ ”
(Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448,
quoting People ex rel. Dept. Pub. Wks. v. Busick (1968) 259
Cal.App.2d 744, 749.)

10
continuance was the need to try facts relating to the District’s
unclean hands defense, which was based upon Appellants’
alleged diversion of water from the District’s main canal.
However, that issue was not new. The District asserted its
unclean hands defense in the answer that it filed on July 19,
2019. As mentioned, the defense was also the subject of a motion
to compel that the trial court decided on October 10, 2019.
Appellants represented in their ex parte request for a
continuance that the trial court’s ruling on that discovery motion
had the effect of “deeming” the District’s equitable defenses
“relevant to the Petition.” Yet at that same October hearing
Appellants agreed with the trial court’s proposal to continue the
hearing on their Petition to February 28, 2020, without raising
any concern about the timing or the need for a trial of factual
issues. Appellants did not raise any such concern until they filed
their ex parte motion, well after the deadline for filing their
prehearing briefs. Thus, the trial court could reasonably have
found that Appellants’ continuance request was untimely.6
The trial court also could have reasonably concluded that it
would be more efficient to resolve the legal issues raised by
Appellants’ Petition before deciding whether any trial on
affirmative defenses was necessary. The record suggests that the
trial court made such a practical determination. The court
ordered briefing on specific legal issues while assuring Appellants
that, if facts concerning the District’s equitable defenses then

6Neither the trial court’s written order denying Appellants’
ex parte application nor the transcript of the hearing on that
application contains an explanation of the trial court’s reasons for
denying the continuance.

11
needed to be tried, the court would set a later hearing “based on
both your schedules.”
Having denied Appellants’ request for a continuance, the
trial court could have simply proceeded to the hearing on
Appellants’ Petition without any timely briefing, and then find
that Appellants had failed to meet their burden of proof. Instead,
the court gave Appellants an opportunity to present their
evidence and make their arguments in support of their Petition
under an expedited briefing schedule.
Appellants complain that the trial court’s order directing
the issues for the expedited briefing did not include the issue of
whether the District acted in an arbitrary and capricious manner
in denying Appellants’ applications to purchase surplus water.
But Appellants did not object to the scope of the briefing or seek
any clarification of the briefing order, and in fact specifically
stated at the ex parte hearing that they had no objection to the
trial court’s order upon receiving the court’s assurance that any
equitable issues could be tried later. Appellants also did not
request any opportunity to later brief additional legal issues, and
the trial court gave no indication that it contemplated such
additional briefing.
Nor did the trial court’s order expressly limit the issues
that Appellants could address. At best for Appellants, the order
was ambiguous as to whether the trial court intended to limit the
scope of the briefing. But Appellants did not seek clarification at
the time, and apparently did not feel constrained in the issues
that they could address. The brief that Appellants filed in fact
included a discussion of the arbitrary and capricious issue under
the heading, “[The District’s] Decision To Deny Petitioners’ Water
Applications Was Arbitrary, Capricious, Entirely Lacking In

12
Evidentiary Support, Unlawful, And Procedurally Unfair.”
Having made no request for further briefing and having
addressed the arbitrary and capricious issue themselves in the
brief that they filed, Appellants can hardly complain that the
trial court then ruled on the issue.7
We therefore reject Appellants’ argument that the trial
court unfairly limited the arguments and evidence that
Appellants were permitted to present in support of their Petition.
Consequently, we also conclude that there is no reason to depart
from the substantial evidence standard of review in considering
the factual findings underlying the trial court’s ruling.

7 Appellants’ argument that the trial court should have
granted a new trial on the ground of “surprise” fails for the same
reason. In moving for a new trial, Appellants argued that in light
of the trial court’s comments at the February 14, 2020 hearing,
Appellants’ counsel “reasonably believed that the issues to be
briefed, heard, and decided were limited to the two issues
identified by the Court.” In support of that argument,
Appellants’ counsel submitted a declaration stating that
Appellants “did not submit briefing and evidence on any of those
other issues” not identified in the trial court’s order, including
“whether the adjudicatory decision by John Sweigard was
arbitrary and capricious.” That statement is directly
contradicted by Appellants’ brief, which, as mentioned, contained
a section addressing precisely that issue. In denying the motion
for a new trial, the trial court noted this section of Appellants’
brief as well as the oral argument that Appellants presented on
the same issue at the hearing.

13
4. Appellants Failed to Show that a Writ of
Mandate Should Issue
A. The District Did Not Have a Ministerial
Duty to Sell Surplus Surface Water to
Appellants
Appellants argued below that the District had a ministerial
obligation to sell excess water to them and that a writ should
issue to compel compliance with this clear obligation. They do
not attempt to support that legal argument on appeal. They have
therefore forfeited the contention. (Schmidt v. Bank of America,
N.A. (2014) 223 Cal.App.4th 1489, 1509.)
In any event, the contention is inconsistent with the
controlling statute. Section 22259 states that an irrigation
district “may” enter into a contract for the sale or lease of surplus
water if its board “deems it to be for the best interest of the
district.” This language cannot reasonably be interpreted to
impose a mandatory duty on the District to sell surplus water to
Appellants. The term “may” plainly means that the District may
exercise discretion in determining whether to enter into a
contract to sell surplus water. (See Glendale City Employees’
Assn., Inc. v. Glendale (1975) 15 Cal.3d 328, 344 (Glendale)
[“ ‘The critical question in determining if an act required by law
is ministerial in character is whether it involves the exercise of
judgment and discretion’ ”].)
In Abatti, the court interpreted several provisions of the
Water Code that contain similar language. The appellant in that
case argued that sections 22252.1 and 22252.3 require an
irrigation district to provide notice and take into account the
appellant farmers’ “ ‘beneficial needs’ ” when there is an expected
water shortage. (Abatti, supra, 52 Cal.App.5th at p. 278.) The

14
court rejected the argument, noting that the statutes at issue use
the term “may” in describing a district’s obligations. The court
explained that both sections “use the term ‘may,’ not ‘shall’ or
‘must,’ and both confirm that they place no limitation on a
district’s power to control water distribution. Thus, these
statutory provisions permit, but do not require, compliance with
their irrigation application procedures.” (Id. at pp. 278–279.)
Section 22259 similarly uses the term “may” rather than
“shall” or “must.” The only limitation that section 22259 imposes
is that a district’s board must find that the sale or lease of
surplus water is in the district’s best interest. That section does
not state that, once a board has made such a decision, an
irrigation district must sell to all or any prospective purchasers.
It states that the district “may” do so. Thus, there is no
mandatory statutory obligation for an irrigation district to sell
surplus water in any particular circumstance. Appellants do not
cite any other statute, regulation or District rule establishing
such a mandatory obligation. The decision whether and to whom
to sell such water is therefore committed to the District’s
discretion.
B. The District Did Not Abuse Its Discretion
in Declining to Sell Surplus Water to
Appellants
The conclusion that the District had the discretion to decide
whether and when to sell surplus water does not end our
analysis. As Appellants correctly point out, mandamus may also
issue to correct an agency’s discretionary decision if that decision
was made in an arbitrary or capricious manner. (Glendale,
supra, 15 Cal.3d at p. 344, fn. 24 [“ ‘While mandamus will not lie
to control the discretion exercised by a public officer or board . . .

15
it will lie to correct an abuse of discretion by such officer or
board’ ”], quoting Baldwin-Lima-Hamilton Corp. v. Superior
Court, supra, 208 Cal.App.2d at p. 823; Fullerton, supra, 32
Cal.3d at p. 786; Fair Education Santa Barbara v. Santa Barbara
Unified School Dist. (2021) 72 Cal.App.5th 884, 896 (Santa
Barbara) [review of an agency’s legislative determination is
“limited to an inquiry of whether the act was arbitrary,
capricious, or entirely lacking in evidentiary support”].)
However, judicial review of such discretionary decisions is
highly deferential. “ ‘Quasi-legislative administrative decisions
are properly placed at that point of the continuum at which
judicial review is more deferential; ministerial and informal
actions do not merit such deference, and therefore lie toward the
opposite end of the continuum.’ ” (Santa Barbara, supra, 72
Cal.App.5th at pp. 893–894, quoting Western States Petroleum
Assn. v. Superior Court (1995) 9 Cal.4th 559, 575–576.) A
reviewing court may issue a writ of mandate that requires
legislative or executive action “ ‘to conform to the law,’ ” but it
may not “ ‘substitute its discretion for that of legislative or
executive bodies in matters committed to the discretion of those
branches.’ ” (Michael Leslie Productions, Inc. v. City of Los
Angeles (2012) 207 Cal.App.4th 1011, 1026 (Michael Leslie),
quoting Common Cause v. Board of Supervisors (1989) 49 Cal.3d
432, 445.)
i. The District had a duty not to act
arbitrarily or capriciously
The District argues that its decision to deny Appellants’
application to purchase surplus water is not reviewable even
under this highly deferential standard. It claims that in offering
water to out-of-district purchasers like Appellants, the District

16
was not acting “under any obligation or duty pursuant to its
capacity as a governmental entity, but in its capacity as an actor
in the private marketplace for its own proprietary purposes.”
The District suggests that in this capacity the District’s exercise
of its “proprietary discretion” is unreviewable in a writ
proceeding and is constrained only by the common law of
contract.
We reject the argument that the District had no public
responsibility as a government agency in making its decision not
to sell water to Appellants. The District cites Jenison v. Redfield
(1906) 149 Cal. 500 (Jenison), in support of its claim that it owes
no duty to sell water to out-of-district users. That case stands for
the proposition that the ultimate purpose of an irrigation district
is “ ‘the improvement, by irrigation, of the lands within the
district.’ ” (Abatti, supra, 52 Cal.App.5th at p. 257, italics added,
quoting Jenison, at p. 503.) However, it does not support the
conclusion that an irrigation district is permitted to act
arbitrarily in selling water to out-of-district users.
In Jenison, the court held that a landowner possessing
lands both within and without an irrigation district had no right
to receive from the district “any portion of his share of water for
use upon said land without the boundaries of the district.”
(Jenison, supra, 149 Cal. at p. 501.) However, that case was
decided well before the Legislature enacted section 22259, which
gives irrigation districts the discretion to provide surplus water
outside the district. In contrast to that discretionary authority,
the court’s decision in Jenison was based on the premise that the
water an irrigation district distributes “can be used only for the
irrigation of lands within the district, and the irrigation district
has no authority to distribute it for any other purpose.” (Id. at

17
p. 504.) Thus, the court in Jenison did not consider any duty that
an irrigation district might assume in selling water for use
outside the district because it held that the district had no power
to do so.
Under the plain language of section 22259, an irrigation
district has the discretion to sell surplus water outside the
district if it decides that it is in its best interest to do so. There is
no need to consider here whether a reviewing court could ever
interfere with a district’s decision that it had no such surplus
water, or, if so, whether the sale of any such water outside the
district was in its best interest. Here, the District decided that it
had surplus water to sell to out-of-district users. The question
therefore is whether the District’s decision about which out-of-
district users could purchase such water is unreviewable. In
other words, could the District arbitrarily discriminate among
the prospective out-of-district purchasers of surplus water on the
ground that it was acting in a private capacity?
We believe the answer is no. The District is a public
agency. (See § 20570 [“It is reaffirmed that [irrigation] districts
are state agencies formed and existing for governmental
purposes”]; Abatti, supra, 52 Cal.App.5th at p. 257 [“California
courts have long held that irrigation districts operate in a public
capacity”].) And section 22259 makes clear that a decision
whether to enter into a particular contract for the sale of water is
within the scope of such an agency’s statutory duties. (See also §
22228 [“A district may contract to perform and perform any
agreement with any number of persons or public corporations or
agencies for the exchange, transfer, or delivery to or by either or
both parties of any water right or water”].) More generally,
numerous courts have recognized that a public agency’s decision

18
concerning the award of a contract is a legislative or quasi-
legislative act. (See, e.g., Michael Leslie, supra, 207 Cal.App.4th
at p. 1020; Santa Barbara, supra, 72 Cal.App.5th at pp. 894–895;
SN Sands Corp. v. City and County of San Francisco (2008) 167
Cal.App.4th 185, 191; Marshall v. Pasadena Unified School Dist.
(2004) 119 Cal.App.4th 1241, 1253.)
In addition, water is of course an important and valuable
public resource. (Cf. Abatti, supra, 52 Cal.App.5th at pp. 256–
257 [all property acquired by an irrigation district is held in
trust, including water and water rights], citing § 22437.) Under
the District’s “proprietary discretion” theory, the District would
be immune from judicial review of any decision that it might
make concerning which out-of-district users had the right to
purchase this important resource, no matter how arbitrary such a
decision might be, and even if the decision had nothing to do with
the District’s own interests. Thus, for example, under the
District’s theory the District could presumably decide to offer
water only to out-of-district purchasers who have a particular
Zodiac sign or who attended a particular college, free of any
judicial oversight. The District has not provided any authority
for this type of immunity, and we decline to recognize it.
ii. This court may not interfere with a
decision of the District based upon
the District’s own best interest
The conclusion that the District’s alleged arbitrary acts are
subject to judicial review does not fully explain the scope of that
review. An agency often exercises its discretion within the
context of particular rules governing its purpose and authority.
Thus, a public entity’s discretion may be limited by law or by its
own rules. (See Michael Leslie, supra, 207 Cal.App.4th at p. 1022

19
[an ordinance passed by a municipal corporation within the scope
of its authority has the same force over it as a statute]; (Pozar v.
Department of Transportation (1983) 145 Cal.App.3d 269, 271 [a
writ may issue to direct an agency to follow its own rules when
the agency has abused its discretion].)
Numerous statutes prescribe the powers and purposes of an
irrigation district. Many of those statutes provide such districts
with broad authority to accomplish their overall purpose of
putting water to “beneficial use.” (§§ 22075, 22076, 22078, 22225,
22228, 22230; see also Abatti, supra, 52 Cal.App.5th at p. 265
[irrigation district has “broad powers” to control and distribute
water consistent with the purpose of supporting irrigation and
other beneficial uses].) Irrigation districts are also subject to
specific statutory limitations on how they distribute water within
their districts. (See, e.g., §§ 22250 [water distributed for
irrigation purposes must be apportioned ratably to each
landowner], 22252 [water shall be distributed “equitably” among
those offering to make the required payment], 22257 [districts
must establish “equitable rules” for the distribution and use of
water].) However, section 22259 is the only statute that
specifically applies to the sale of water to out-of-district users.8

8 Section 22252 provides in full that “[w]hen any charges
for the use of water are fixed by a district the water for the use of
which the charges have been fixed shall be distributed equitably
as determined by the board among those offering to make the
required payment.” Although Appellants do not make the
argument, that statute, read broadly, could apply to water sold to
out-of-district users once a board has established a price.
However, unlike section 22259, section 22252 refers generally to

20
 The only requirement that section 22259 expressly
establishes is that a district board must “deem” a decision to
provide surplus water outside the district to be “for the best
interests of the district.” Thus, by its terms, the section does not
limit a district’s decision not to enter into such a contract, even if
such a contract might be in the district’s best interest.
However, the record shows that the District itself assumed
such an obligation. In his declaration submitted in opposition to
Appellant’s Petition, Sweigard testified that he had the
“authority and discretion” as the District’s general manager to
“decide whether or not . . . individual sales are in the District’s
best interests, on a case by case basis.” And a board member
testified that Sweigard had the authority to deny particular
water purchase applications “based on his opinion if it’s in the
best interest of the district to do so.” Moreover, absent some
other legitimate and compelling circumstance, a decision to
refuse an out-of-district offer to purchase surplus water even
though the district believed the purchase would be in its own
interest may fairly be characterized as arbitrary. Thus, we
conclude that the District’s discretion to decline Appellants’ offer
to purchase surplus water was at least limited by the
requirement that it act in its own best interest.

“water” rather than specifically to “surplus water,” and its
requirement of equitable distribution to all who offer to pay
contradicts the discretion that section 22259 gives to a district
board in entering into contracts for the sale of surplus water. We
conclude that the more specific statute controls. (See Crown
Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395,
1408 [a specific statute controls over a more general one].)

21
 Appellants have not identified any other specific limitation
on the District’s discretion. Appellants refer to the Sustainable
Groundwater Management Act (SGMA, § 10720 et seq.), but they
do not identify any particular provision in that act that would
require the District to sell them water under any particular
circumstance. The District also submitted evidence showing that
the District has only voluntary obligations to preserve
groundwater and that Appellants’ land falls outside the
geographic area of the obligations that the District has assumed.
Appellants do not dispute that evidence on appeal. Thus,
although the District may have a policy to promote surface water
use when available to preserve groundwater, Appellants do not
identify any legal requirement establishing when or if the
District must exercise its discretion in favor of that policy rather
than to further other District objectives.
Nor do Appellants identify any internal District rules that
required it to sell them surplus water. Appellants point to
various District policies and resolutions that establish a general
goal of using surface water—including sales to sphere of
influence users—to preserve groundwater. But a general goal or
policy is far different from a requirement that the District sell
water to every out-of-district user applicant, regardless of other
circumstances, or to Appellants particularly. That the District
had historically done so does not establish the kind of clear legal
duty that this court may enforce through a writ of mandate.
The District’s 2019 Plan also did not establish such a duty.
The plan stated that there would be “no limiting surface water
allocation for the 2019 irrigation season.” As the trial court
correctly reasoned, this reference to the “allocation” of water
concerned in-district users who are entitled to an apportionment

22
of District surface water, absent shortages. (See §§ 22250,
22252.1, 22252.3.) The trial court summarized the undisputed
extrinsic evidence supporting the conclusion that the District
owed no duty to allocate surplus water to out-of-district users.
Appellants do not challenge that evidence on appeal.
The minutes of the meeting at which the District’s board
approved the 2019 Plan also do not support any duty to sell to
Appellants. The minutes simply summarized the 2019 Plan and
discussed a general objective to “maintain equitable service to all
[District] growers, meet the Boards reservoir carryover storage
goal(s), and to control and properly account for all water conveyed
through [District] facilities.” That general objective did not
create any specific duty toward out-of-district purchasers such as
Appellants.
Appellants also cite the press release that the District
issued announcing the 2019 Plan. Like the plan itself, the press
release contained language referring to the lack of restrictions on
“surface water allocations.” And, like the language in the plan,
this reference concerned allocations to in-district users, not to the
rights of out-of-district applicants.
The press release also stated that “[g]rowers within
[District’s] SOI may execute water transfer agreements and
receive [District] surface water for $100 per acre foot.” Even if
one assumes that a press release could establish a duty binding
on the District, that language did not do so. The press release did
not state that the District was obligated to enter into water
transfer agreements with each applicant. Any doubt on that
score was dispelled by the form agreement itself, which stated
that the agreement “is not valid until approved and initialed by
[the District].”

23
 Thus, in deciding whether to sell surplus water to
Appellants, the District’s discretion was limited only by its own
internal requirement that it act in its own best interest. Further,
as explained below, so long as the District actually made a
decision based upon an assessment of that interest, this court
may not substitute its judgment for that of the District.
In Michael Leslie, the court considered the effect of a Los
Angeles city charter provision that permitted the city to “ ‘reject
any and all bids or proposals . . . when to do so would be to the
advantage of the City.’ ” (Michael Leslie, supra, 207 Cal.App.4th
at p. 1022.) After soliciting bids for the operation of golf carts on
the city’s golf courses, and after the city’s reviewing department
had decided that the plaintiff in that case had submitted the best
proposal, the city rejected all the bids it had received and decided
to operate the carts itself. (Id. at pp. 1016–1020.)
The court held that the city’s decision to reject all bids
could not be remedied through mandamus, even though the
plaintiff alleged that an unsuccessful bidder sought to improperly
influence city decision makers. (Michael Leslie, supra, 207
Cal.App.4th at p. 1025.) The court reasoned that the decision by
the city’s reviewing agency and the city council concerning what
choice would be to the city’s advantage “was a classic
discretionary function” that the court could not second-guess.
(Id. at p. 1026.) The court held that a judicial judgment that
“self-operation is not to the advantage of the City, and only an
award of the concession to [the plaintiff] would be to the
advantage of the City” would “exceed the scope of mandamus
review.” (Ibid.)
In reaching that conclusion, the court in Michael Leslie
cited Stanley-Taylor Co. v. Supervisors (1902) 135 Cal. 486

24
(Stanley-Taylor). (See Michael Leslie, supra, 207 Cal.App.4th at
p. 1026.) In Stanley-Taylor, our Supreme Court considered the
decision of San Francisco’s board of supervisors to reject all bids
for a contract to provide the city with certain office forms under a
city charter provision that permitted such a decision if “ ‘the
supervisors believe that the public interests will be subserved
thereby.’ ” (Stanley-Taylor, at pp. 487–488.) The court held that
mandamus was not available to review the supervisors’ belief
that the public interest would be served by their decision.
Because the law vested the board of supervisors with discretion
to make that determination, “ ‘the writ of mandate will not lie to
divest or mold or otherwise interfere with such discretion.’ ” (Id.
at p. 488.)
In Stanley-Taylor, our Supreme Court approved the opinion
of the lower court in that case, which included the general
statement that the “ ‘writ of mandate will lie to correct illegal but
not capricious acts.’ ” (Stanley-Taylor, supra, 135 Cal. at p. 488.)
As a statement of general principle, this language has been
superseded by our Supreme Court’s subsequent explanation that
a court may review an agency’s “quasi-legislative” decisions more
broadly to determine whether they were “arbitrary, capricious,
entirely lacking in evidentiary support, or unlawfully or
procedurally unfair.” (Fullerton, supra, 32 Cal.3d at p. 786; see
also Glendale, supra, 15 Cal.3d at p. 344, fn. 24 [mandamus will
lie to “ ‘correct an abuse of discretion’ ” by a public officer or
board]; Manjares v. Newton (1966) 64 Cal.2d 365, 370 [“That
mandate will lie whenever an administrative board has abused
its discretion is a rule so well established as to be beyond
question”].) The court also subsequently distinguished Stanley-
Taylor in a case that concerned objective limitations on a

25
government entity’s discretion, noting that in Stanley-Taylor “the
board had a right to reject bids according to its own belief as to
the public interest.” (Landsborough v. Kelly (1934) 1 Cal.2d 739,
744.) Thus, Stanley-Taylor stands for the more limited but still
highly relevant principle that a court considering a petition for
writ of mandate may not review an agency’s subjective
assessment of interests that are within its discretion to
determine.9
That principle controls here. This court may not interfere
with the District’s discretionary decision that denying Appellants’
applications to purchase surplus water was in its best interest.
We may not substitute our judgment for the District about how
its interests would best be served. So long as the District
actually exercised such discretion, this court may not issue a writ
contravening the District’s decision.

9 Citing Stanley-Taylor, supra, 135 Cal. at page 488, the
trial court here formulated a general principle that, as a matter
of law, “a writ of mandate will lie to correct illegal, but not
capricious rationale determined by an irrigation district board of
directors to be in the best interest of the district.” For the
reasons discussed above, we disagree with this formulation of the
controlling legal standard. However, we agree with the trial
court’s specific ruling that only the District itself “has the
authority to determine what might be in the best interest of the
district.” So long as the District in fact exercised its discretion to
determine whether the sale of surplus water was in its interest, a
court may not interfere with that determination.

26
 iii. The District exercised permissible
discretion in deciding not to do
business with Appellants
As the trial court noted, the District submitted evidence
that Sweigard denied Appellant’s application to purchase surplus
water because Appellants’ principal, Thomason, was “difficult to
do business with and . . . it was in the district’s best interest not
to enter into additional contracts with the businesses Mr.
Thomason managed.” The trial court found that “[t]he weight of
the substantial evidence provided establishes that Mr. Sweigard
actually and reasonably believed that Mr. Thomason was difficult
to do business with and actually and reasonably believed that it
was in the district’s best interest not to enter into additional
contracts with the businesses Mr. Thomason managed.”
The record supports the trial court’s conclusion. In his
declaration, Sweigard testified that he decided that the “District
should not sell water to [Appellants] for the out-of-district
property in 2019” because it was in the District’s best interest to
“limit its involvement and engagement with [Appellants] in an
effort to avoid distractions and unnecessary disputes, and to
better manage and allocate the District’s limited resources and
apply them towards its core mission and duties to its members.”
Sweigard identified a number of such disputes with Appellants,
including: “disagreements over the nature of the District’s rights
to its Main Canal, which runs through [Appellants’] land;
disputes as to the District’s right to remove dirt from the area
around its Main Canal; [Appellants’] complaints about dust from
the District’s operation of and access to its Main Canal; a pipeline
[Appellants] installed in the bank of the Main Canal without
authorization” and “the use, maintenance, collapse by

27
[Appellants], and replacement of a bridge over the [District’s]
Main Canal.”
Appellants did not dispute below, and do not deny on
appeal, that there were a number of prior controversies between
them and the District. As the trial court noted, Appellants
themselves submitted evidence concerning past disputes,
including Appellants’ claim that the District illegally removed
soil from Appellants’ land and their demand that the District
build a bridge over its canal on Appellants’ property. In fact,
Appellants’ counsel detailed a number of ongoing disputes in one
of the letters exchanged with the District in 2019 concerning the
District’s decision not to sell them surplus water.
On appeal, Appellants attack the District’s proffered
reasons as “nonsensical” because none of the prior disputes
between the parties concerned the purchase of surplus water and
because the District sold Appellants such water in 2017 and 2018
despite the existence of these disputes. These arguments
challenge the reasonableness of the District’s decision but not the
reasonableness of the trial court’s factual findings that the
District in fact decided its best interests would be furthered by
denying Appellant’s application to purchase surplus water.
Whether this court agrees with the District’s decision is not the
issue. The issue is whether the District actually exercised its
discretion in deciding not to do business with Appellants.
Appellants’ argument does not show that the District must have
made its decision on some other ground. The District simply may
have wished to avoid the perceived difficulties of dealing with
Thomason, regardless of the nature of the prior disputes, and
despite the District’s willingness to sell water to Appellants in

28
the past. Because substantial evidence supports the trial court’s
findings, we do not disturb them on appeal.10
Appellants also challenge the legitimacy of the District’s
decision by arguing that the trial court erred in finding that the
District implicitly ratified Sweigard’s actions. That argument
fails because Appellants have not provided any support for the
claim that the board’s express ratification of Sweigard’s decision
to deny Appellants’ application for surplus water was legally
required. As discussed above, section 22259 requires only that an
irrigation district’s board find that it is in a district’s best interest
to sell or lease surplus water, not to decline to do so.11 There is
no dispute that the District’s board here actually approved the
sale of surplus water to out-of-district users in 2019. Appellants
do not identify any additional legal requirement that, once such a
decision has been made, a district board must expressly approve

10 Appellants filed a motion requesting that we take
judicial notice of the trial court’s findings on a motion for a
preliminary injunction in another lawsuit between the parties
concerning the District’s claim that Appellants took water from
the District without authorization. That claim concerns events
that occurred after the District’s denial of Appellants’ application
to purchase surplus water that is at issue here. It is therefore
irrelevant to the basis for the District’s decision. We deny the
request for judicial notice on that ground.
11 The distinction makes sense in light of an irrigation
district’s primary purpose to provide surface water to users
within the district. Before disposing of surface water by selling to
out-of-district users, a board must make the decision that there is
such surplus water and that it is in the district’s best interest to
sell it outside the district.

29
every contract to every out of district user or ratify every decision
not to sell to a particular applicant.
Under section 21185, the District’s board had the authority
to specify the duties of the District’s employees, including
Sweigard. The trial court found that, in his position as general
manager, Sweigard had the delegated authority to deny
Petitioner’s application for surplus water. That finding is
supported by the testimony of Sweigard as well as testimony
from a member of the board. Proof that the District’s board
ratified Sweigard’s decision was therefore unnecessary.
C. Appellant’s estoppel theory does not
provide a basis for writ relief
Appellants argue that the trial court erred in finding that
they had forfeited their estoppel theory by failing to offer legal
authority supporting it. Echoing their procedural complaints,
Appellants argue that the trial court’s briefing order did not
provide them with an opportunity to brief the issue. For the
reasons discussed above, we reject this procedural argument.
In any event, on appeal Appellants do not provide any
ground to conclude that they were prejudiced by the trial court’s
forfeiture finding. The trial court’s ruling included a
comprehensive substantive analysis rejecting Appellants’
estoppel theory on the merits. Based upon the evidence, the trial
court found that the “only act by [Appellants] in reliance on the
March 6, 2019 Press Release was to submit 2019 Temporary
Water Transfer Application and Agreements after receiving a
voice message that any such applications would not be approved.”
On appeal, Appellants do not explain how any additional briefing
could have changed the trial court’s reasonable conclusion that
this minimal alleged reliance did not create any enforceable

30
obligation by the District to grant the application that Appellants
submitted. Appellants’ estoppel argument therefore does not
provide any basis for reversal.
DISPOSITION
The judgment is affirmed. The Merced Irrigation District
is entitled to its costs on appeal.
CERTIFIED FOR PUBLICATION.

LUI, P. J.
We concur:

CHAVEZ, J.

HOFFSTADT, J.

31