San Francisco Baykeeper v. Sunnyvale

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION SAN FRANCISCO BAYKEEPER, Case No. 5:20-cv-00824-EJD 9 Plaintiff, FINAL PRETRIAL ORDER v. 10 Re: ECF Nos. 285, 286, 288, 290, 301, 302, 320, 321, 324, 326, 328, 331 11 CITY OF SUNNYVALE, et al., Defendants.

14 Plaintiff San Francisco Baykeeper filed a citizen suit against the Cities of Sunnyvale and Mountain View under the Clean Water Act. In its lawsuit, Baykeeper alleges that the Cities are violating two provisions in their National Pollutant Discharge Elimination System (NPDES) permit. First, Baykeeper alleges that the Cities are not “effectively prohibit[ing] the discharge of non-stormwater . . . into storm drain systems and watercourses” in violation of Discharge Prohibition A.1. ECF No. 84-1, Ex. 16 (2015 Permit) § A.1. Second, Baykeeper alleges that the Cities are “caus[ing] or contribut[ing] to a violation of any applicable water quality standard” in violation of Receiving Water Limitation B.2. Id. § B.2.

22 Before the Court are several pretrial disputes: motions in limine (MILs) (ECF Nos. 285, 286, 288, 290, 301, 302, 321), motions to amend (ECF Nos. 320, 324), a disagreement over standing (ECF Nos. 326, 328), and an objection to late-disclosed witnesses and evidence (ECF No. 331). The Court resolves them as follows.

1 I. MOTIONS IN LIMINE1 2 A. Cities’ MIL No. 1 (ECF No. 285) 3 The Cities first move the Court to exclude all evidence related to two waterbodies: the Sunnyvale East Channel and Guadalupe Slough. The Cities argue that, because the Court held Baykeeper lacks standing to raise claims as to these waterbodies, evidence related to these waterbodies is irrelevant and more prejudicial than probative under Rules 401, 402, and 403.

7 Evidence is relevant if it “‘has any tendency to make a fact more or less probable’ and that fact ‘is of consequence in determining the action.’” Sandoval v. Cnty. of San Diego, 985 F.3d 657, 665 (9th Cir. 2021) (quoting Fed. R. Evid. 401). This is a low bar. Id. at 666. Evidence about the East Channel and Slough clears that low bar because it contributes to the causation analysis for Limitation B.2 violations. Limitation B.2 bars the Cities from “caus[ing] or contribut[ing]” to water quality violations. 2015 Permit § B.2. Both the East Channel and Slough are upstream from waterbodies for which Baykeeper does have standing to assert B.2 violations (the Receiving Waters). Pollution from the East Channel and Slough can flow downstream into the Receiving Waters. So, pollution in the East Channel and Slough can cause or contribute to water quality violations in the Receiving Waters. By extension, evidence showing that the Cities caused or contributed to pollution in the East Channel or Slough may have a tendency to show that the Cities caused or contributed to a water quality violation downstream in the Receiving Waters.

19 Because evidence related to the East Channel and Slough is relevant, it is admissible unless there is a separate rule or law saying otherwise. Fed. R. Evid. 402. The Cities point to Rule 403 as such a rule. Rule 403 permits a court to exclude relevant evidence “if its probative value is substantially outweighed by the danger of . . . unfair prejudice” or some other countervailing consideration. Fed. R. Evid. 403. Because Rule 403 applies only when the probative value of evidence is “substantially outweighed” by countervailing considerations, it “sets a high bar for exclusion.” Sidibe v. Sutter Health, 103 F.4th 675, 691 (9th Cir. 2024). Courts “must be cautious Unless otherwise indicated, citations to the Rules in this section are to the Federal Rules of and sparing” in their use of Rule 403. Id. (quoting United States v. Hankey, 203 F.3d 1160, 1172 (9th Cir. 2000)). Moreover, this case is being decided by bench trial, and “in a bench trial, the risk that a verdict will be affected unfairly and substantially by the admission of irrelevant evidence is far less than in a jury trial.” E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 898 (9th Cir. 1994).

5 Courts are well-versed in separating a piece of evidence’s probative force from its potentially prejudicial effect.

7 Evidence about the East Channel and Slough would not be prejudicial unless Baykeeper’s lack of standing precludes it from seeking liability for violations in those two waterbodies. In Baykeeper’s view, its standing in the Receiving Waters permits it to raise violations in upstream waterbodies like the East Channel and Slough. The Court need not decide now whether Baykeeper is correct. Either way, evidence about the East Channel and Slough is admissible. It would be more prudent to defer any decision on whether the Cities may face liability for violations in the East Channel or Slough, especially since the Cities have not had a chance to provide a fulsome, written response to Baykeeper’s argument due to the limited briefing allowed on motions in limine.

16 The parties should address this issue—whether Baykeeper’s standing in the Receiving Waters allows it to assert liability for violations in the East Channel and Slough—in posttrial briefing. If the Court concludes that Baykeeper may not assert liability for such violations, the Court will not use evidence about the East Channel or Slough for the purpose of determining if such violations occurred. Accordingly, the Court DENIES the Cities’ MIL No. 1.

21 B. Cities’ MIL No. 2 (ECF No. 286) 22 Next, the Cities ask the Court to exclude argument or evidence about violations of Limitation B.2 that postdates Baykeeper’s water quality sampling in February 2019. The Cities take a somewhat scattershot approach to this MIL, invoking arguments under a bevy of Rules, including Rules 401, 402, 403, and 702.2 However, all those arguments boil down to two themes: (1) that the post-February 2019 evidence and water sampling was so sparse that it could not establish any water quality violation as a matter of law, and (2) that no violations of the 2022 Permit are at issue, so evidence and argument postdating the issuance of the 2022 Permit is irrelevant. The Court addresses these themes in turn.

4 The Cities’ first set of arguments centers around the fact that water quality standards are measured “[b]ased on a minimum of five consecutive samples equally spaced over a 30-day period.” ECF No. 84-1, Ex. 9. These standards require multiple measurements because they are calculated based on various types of averages or other statistical measures. Id. Computing those values necessarily requires a series of tests, not just a single one. Baykeeper did not conduct such a series of tests post-February 2019. Rather, it conducted a single test on April 16, 2022. Wren Decl. at 40:7–42:24, ECF No. 291-4 (“The only sampling event that’s been performed since 2019 was the single sampling event on April 16, 2022.”). And while the Cities’ own testing fills in some gaps, the Cities point out that they at most performed one test per month for any Receiving Water, which is not enough to meet the five-samples-over-thirty-days baseline for measuring water quality. Wren Rep. at 2, ECF No. 291-1; 5/1 Thorme Decl. ¶ 2, ECF No. 291. So, say the Cities, Baykeeper simply does not have enough data to show any water quality violations.

16 Although the Cities frame these arguments as evidentiary in nature, the Cities are essentially advancing their merits argument. Motions in limine, however, are “used to obtain pretrial rulings on the admissibility of evidence, not to determine the sufficiency of the evidence or the merits of an issue.” Franssen Condo. Ass’n of Apartment Owners v. Country Mut. Ins. Co., No. 2:21-cv-00295, 2022 WL 17176845, at *3 (W.D. Wash. Nov. 23, 2022) (quoting Williams v. Rushmore Loan Mgmt. Servs. LLC, No. 3:15-cv-673, 2017 WL 822793, at *1 (D. Conn. Mar. 2, 2017)); see also PersonalWeb Techs. LLC v. Int’l Bus. Machs. Corp., No. 16-cv-01266, 2017 WL 23 8186294, at *3 (N.D. Cal. July 25, 2017). They are “not the proper vehicle for seeking a dispositive ruling on a claim.” Hana Fin., Inc. v. Hana Bank, 735 F.3d 1158, 1162 n.4 (9th Cir. 2013). Questions going to the merits go to weight, not admissibility. For that reason alone, the Court rejects the Cities’ first set of arguments.

27 Even taken at face value, these arguments do not merit exclusion of evidence. The Cities’ Baykeeper were able to present five tests within thirty days showing a water quality violation, that would be direct evidence of such a violation. But a single test combined with other circumstantial evidence could still allow the fact finder to infer a water quality violation. The Cities believe there is not enough circumstantial evidence to make such an inference. They may be right, but that is an issue for trial. As an evidentiary matter, “circumstantial and direct evidence should be treated alike.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004). Consequently, the post-2019 evidence should not be excluded as irrelevant or prejudicial under Rules 401, 402, or 403. The Cities’ expert objections under Rule 702 are based on the same grounds, so the Court rejects them for the same reasons.3 10 As for the Cities’ second set of arguments about the supposed irrelevance of any post-2022 evidence due to the lack of claims in this case for violation of the 2022 Permit, the Court has already rejected that argument in a previous order. ECF No. 270 at 4–6.

13 The Court DENIES the Cities’ MIL No. 2.

14 C. Cities’ MIL No. 3 (ECF No. 288) 15 The Cities also move to exclude all evidence related to non-exfiltration discharges of non- stormwater. This request relates to Prohibition A.1, which requires the Cities to “effectively prohibit the discharge of non-stormwater.” 2015 Permit § A.1. Baykeeper’s initial theory was that the Cities violated this provision by allowing exfiltration sources of non-stormwater—from leaks in the Cities’ sewage systems—to discharge into waterways. Sunnyvale Compl, ECF No. 1; Mountain View Compl., Case No. 5:20-cv-00826, ECF No. 1. Later, Baykeeper amended its complaints to also allege that non-exfiltration sources unrelated to the Cities’ sewage systems, including “outdoor defecation, pet waste, [and] trash receptable leachate,” contributed to A.1 violations. Sunnyvale SAC ¶ 106, ECF No. 140; Mountain View SAC ¶ 96, ECF No. 141. The Cities contend that the Court must exclude evidence of the latter under Federal Rules of Civil 3 The same logic applies to the Cities’ argument about the lack of “paired” sampling between the Receiving Waters and outfalls where the Cities discharge stormwater, which is likewise a merits Procedure 26(a) and 37(c).4 2 Rules 26(a) and 37(c) work in tandem “to allow the parties to adequately prepare their cases for trial and to avoid unfair surprise.” United States ex rel. Brown v. Celgene Corp., No. 10-cv-3165, 2015 WL 12731823, at *2 (C.D. Cal. July 24, 2015) (quoting Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396 (4th Cir. 2014)). Rule 26(a) requires parties to make certain pretrial disclosures of relevant witnesses and evidence while Rule 37(c) provides an enforcement mechanism by requiring courts to exclude undisclosed witnesses or evidence “unless the failure [to] disclose was substantially justified or harmless.” Fed. R. Civ. P. 26(a); Fed. R. Civ. P. 37(c)(1).

10 To determine whether exclusion under Rule 37(c) is warranted, the Court must know exactly what evidence or witness was allegedly not disclosed. The Cities do not identify that information. Instead, they appear to take issue with Baykeeper’s entire theory of non-exfiltration sources. That is not grounds for Rule 37 exclusion, and in any case, Baykeeper disclosed this theory to the Cities years ago when Baykeeper amended its complaints in 2022. See Sunnyvale SAC; Mountain View SAC.

16 The closest that the Cities come to identifying specific witnesses is when they raise concerns that Baykeeper’s experts may testify about non-exfiltration sources in ways that go beyond their reports. On that point, the Court observes that an expert’s trial testimony is limited to her report. See Hidden Empire Holdings, LLC v. Angelone, No. 22-cv-6515, 2024 WL 2104389, at *3 (C.D. Cal. Mar. 6, 2024); AngioScore, Inc. v. TriReme Med., Inc., No. 12-cv-03393, 2015 21 WL 5258786, at *1 n.1 (N.D. Cal. Sept. 8, 2015); Med. Instrumentation & Diagnostics Corp. v. Elekta AB, No. 97-cv-2271, 2002 WL 34714563, at *2 (S.D. Cal. Jan. 14, 2002). However, any arguments about experts exceeding the scope of their report are better handled via cross- examination and impeachment at trial, when the Court will have a precise piece of testimony it can assess. Because this case will be decided by bench trial, this Court “may hear from an expert and make any necessary admissibility determinations later.” Su v. Reliance Tr. Co., No. 19-cv-3178, 2023 WL 8715627, at *2 (D. Ariz. Dec. 18, 2023) (citing United States v. Flores, 901 F.3d 1150, 1165 (9th Cir. 2018)).

3 Therefore, the Court DENIES the Cities’ MIL No. 3 without prejudice to the Cities ability to raise Rule 37 objections to specific witnesses or pieces of evidence, or to move to strike testimony following cross-examination at trial on the basis that Baykeeper’s experts have gone beyond the scope of their reports.

7 D. Cities’ MIL No. 4 (ECF No. 290) 8 Lastly, the Cities seek to exclude Baykeeper’s economic expert, Jonathan Shefftz, on the basis that his opinions are unreliable or irrelevant under Rule 702. Specifically, the Cities seek to exclude Shefftz’s opinion on the benefits the Cities gained by not complying with their permits.

11 First, the Cities claim that Shefftz based his opinion on relief that the Court is no longer able to order. That is a merits question and therefore does not require exclusion. See supra Section I.B. In any case, the Court can receive Shefftz’s testimony and then determine, after deciding what, if any, injunctive relief is appropriate, whether Shefftz’s opinion is helpful in light of the injunctive relief granted. See Su, 2023 WL 8715627, at *2.

16 Second, the Cities argue that Shefftz’s opinion is stale because Shefftz did not update his opinion with post-2021 data. While that might prevent Shefftz from properly opining on any economic benefits to the Cities post-2021, the Cities’ concern does nothing to undermine the value of Shefftz’s opinions for the pre-2021 period.

20 The Court DENIES the Cities’ MIL No. 4.

21 E. Baykeeper’s MIL No. 1 (ECF No. 301) 22 Baykeeper moves to exclude the supplemental opinions of Dr. Mark Berkman, the Cities’ economic expert. Baykeeper raises two grounds for exclusion. First, Baykeeper asserts that Dr. Berkman’s supplemental opinions went beyond the scope of discovery and therefore must be excluded under Federal Rules of Civil Procedure 26(e) and 37(c). Second, Baykeeper argues that, to the extent Dr. Berkman’s supplemental opinions fall within the scope of discovery, they must be excluded as unreliable under Rule 702.

1 The Court starts with the argument regarding scope of reopened discovery. On February 3, 2025, the Court reopened discovery for two limited purposes: “(1) to add the Cities’ annual water quality reports and updated geographic and pipe system data to the record; and (2) to allow the parties’ experts to submit supplemental reports based on this additional information.” ECF No. 270 at 6–7. In doing so, the Court narrowly limited new expert discovery. Experts could only offer new opinions that were based on the annual reports or geographic and pipe system data themselves, or that responded to another expert’s new opinions based on that information. The Court did not permit a broad reopening of expert discovery to address any topic that the annual reports or geographic and pipe system data touched on. Any opinions falling outside this narrow scope are not properly offered into the record in this case, so experts may not testify as to such opinions at trial. See supra Section I.C.

12 For this reason, any of Dr. Berkman’s supplemental opinions based on new information other than the Cities’ annual reports or the geographic and pipe system data themselves must be excluded. This includes opinions based on new U.S. Census data and new financial data from the Cities (so far as that financial data is not in the Cities’ annual reports). However, opinions and testimony related to the Cities’ request to redesignate the beneficial use of certain waters from REC-1 (water contact) to REC-2 (non-water contact) are admissible because the Cities’ request is contained in one of their reports.5 19 As for Baykeeper’s second argument about reliability, the Court finds that those issues go to weight, not admissibility. Baykeeper asserts that Dr. Berkman used unreliable data because the data included costs and expenditures that go beyond the issues for trial. However, “experts’ decisions about what data to use in their analysis bear on the weight, not the admissibility of expert testimony.” JH Kelly, LLC v. AECOM Tech. Servs., Inc., 605 F. Supp. 3d 1295, 1310 (N.D. Cal. 2022) (quoting United States ex rel. Bergelectric Corp. v. Sauer, Inc., No. 5:18-cv- 00612, 2020 WL 470273, at *2 (N.D. Cal. Jan. 29, 2020)); see also Hamm v. Mercedes-Benz USA, LLC, No. 5:16-cv-03370, 2021 WL 1238304, at *14 (N.D. Cal. Apr. 2, 2021) (collecting cases).

1 Baykeeper also claims that Dr. Berkman is serving merely as a conduit for other individuals’ analyses because he did not know how to interpret the relevant expenditure data. So far as Dr. Berkman relied on data produced by others, that is no barrier to admitting his expert opinions. The Rules expressly allow experts to rely on data collected by others. Fed. R. Evid. 703; see also Wolkowitz v. Lerner, No. 07-cv-777, 2008 WL 1885770, at *4 (C.D. Cal. Apr. 21, 2008) (citing Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1142 (9th Cir. 1997)). To the extent that Baykeeper believes Dr. Berkman relied not only on data collected by others but also their analyses, that possibility should be tested by cross-examination at trial. Based on the testimony at trial, the Court will determine whether Dr. Berkman’s opinions should be credited.

10 See Su, 2023 WL 8715627, at *2.

11 The Court therefore GRANTS IN PART and DENIES IN PART Baykeeper’s MIL No. 1. The Court excludes Dr. Berkman’s supplemental opinions except to the extent they are based on the Cities’ request to redesignate beneficial uses.

14 F. Baykeeper’s MIL No. 2 (ECF No. 302) 15 Baykeeper also moves to exclude portions of the supplemental opinions of Brandon Steets, the Cities’ expert in stormwater management. Baykeeper makes four arguments that the Court addresses in sequence.

18 Baykeeper begins by arguing that several of Steets’ supplemental opinions are impermissible legal conclusions. Baykeeper is correct that “experts may not give opinions as to legal conclusions.” Cypress Ins. Co. v. SK Hynix Am., Inc., No. 2:17-cv-00467, 2019 WL 634684, at *2 (W.D. Wash. Feb. 14, 2019) (collecting cases). But even though experts may not opine on ultimate issues of law, they may opine on ultimate issues of fact under Rule 704. See United States v. Diaz, 876 F.3d 1194, 1196–97 (9th Cir. 2017) (distinguishing law from fact in the context of expert testimony). In this case, law and fact are closely intertwined, making it difficult for the Court to determine whether an expert’s testimony crosses from fact to law without having the particular testimony before it. That being so, it is prudent to defer the issues posed by this argument to trial, when the Court will have particular testimony to evaluate. Further, the Court is F.T.C. v. BurnLounge, Inc., 753 F.3d 878, 888 (9th Cir. 2014) (“[W]e are mindful that there is less danger that a trial court will be unduly impressed by the expert's testimony or opinion in a bench trial.”) (internal quotations and citation omitted). To streamline proceedings, if the parties wish, the Court will construe this argument as a standing objection to expert legal conclusions for purposes of preserving appellate rights, so the parties need not separately object at trial to each purported legal conclusion.

7 Next, Baykeeper contends that certain of Steets’ supplemental opinions fall outside the scope of reopened discovery. As Baykeeper clarified at the pretrial conference, it specifically seeks to exclude Steets’ Supplemental Opinion 5 on this ground. Since Steets’ himself conceded at deposition that he did not rely on the annual reports or geographic and pipe system data for that opinion, and the Cities did not suggest otherwise at the pretrial conference, the Court finds that Supplemental Opinion 5 exceeds the scope of reopened discovery and excludes it for that reason.

13 See 5/14 Maharg Decl. ¶ 4, ECF No. 304.

14 Finally, Baykeeper asks the Court to exclude Steets’ rebuttal of a supplemental opinion by Baykeeper’s expert, Kevin Draganchuck, on the grounds that Steets is serving as a conduit for other individuals’ analyses. The Court resolves this argument the same way it resolved the similar argument for Dr. Berkman: Baykeeper should probe this issue on cross-examination, and the Court will determine whether to credit Steets’ opinions when making its findings of fact and conclusions of law.

20 The Court therefore GRANTS IN PART and DENIES IN PART Baykeeper’s MIL No. 2. The Court excludes Supplemental Opinion 5 but permits Steets to testify on the remainder of his Supplemental Opinions.

23 G. Baykeeper’s MIL No. 3 (ECF No. 321) 24 With its final MIL, Baykeeper asks the Court to exclude all evidence and argument regarding the Cities’ equitable defenses. Baykeeper believes that such exclusion is necessary because equitable defenses are categorically barred in citizen suits under the Clean Water Act.

27 Baykeeper’s argument has some force. The argument begins with the long judicial United States v. Summerlin, 310 U.S. 414, 413 (“It is well settled that the United States is not . . .

2 subject to the defense of laches in enforcing its rights.”); Utah Power & Light Co. v. United States, 243 U.S. 389, 408–09 (1917) (rejecting equitable estoppel against the government). The basic rationale for this rule is that the government “holds its interests . . . in trust for all the people,” meaning that the government acts on behalf of the entire public. United States v. California, 332 6 U.S. 19, 40 (1947), superseded by statute, Submerged Lands Act, 67 Stat. 29, as recognized in Parker Drilling Mgmt. Servs., Ltd. v. Newton, 587 U.S. 601 (2019). Because equitable defenses can arise only if individuals working for the government make mistakes, and those individual mistakes should not restrict enforcement of the public’s rights and interests, courts have declined to enforce equitable defenses against the government. Id. Meanwhile, citizen enforcement actions like this one “greatly resemble government enforcement . . . actions.” Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1522 (9th Cir. 1987). In Clean Water Act citizen actions specifically, the Ninth Circuit has explained that “citizen plaintiffs effectively stand in the shoes of the EPA.”

14 Id. From this, Baykeeper concludes that it should receive the same protections against equitable defenses that the government would receive.

16 However, the Ninth Circuit has never gone so far. It has cautioned only that equitable defenses are “to be invoked sparingly in environmental cases because the plaintiff is not the only party to suffer harm by alleged environmental damage.” Ocean Advocs. v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 862 (9th Cir. 2005) (quoting Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1381 (9th Cir. 1998)). In doing so, the Ninth Circuit has implicitly recognized that there are “sparing” situations in which it can be appropriate to invoke an equitable defense against a citizen suit. Had the Ninth Circuit meant to foreclose equitable defenses completely, it could have clearly said so. Instead, it has repeatedly used the same “sparingly” language. E.g., id.; Portland Audubon Soc’y v. Lujan, 884 F.2d 1233, 1241 (9th Cir. 1989); Pres.

25 Coal., Inc. v. Pierce, 667 F.2d 851, 854 (9th Cir. 1982); see also, e.g., Coal. for Canyon Pres. v. Bowers, 632 F.2d 774, 779 (9th Cir. 1980) (Kennedy, J.) (equitable defenses “not [] favored”).

1 For these reasons, the Court concludes that equitable defenses are allowed, although the showing that the Cities must make to defeat Baykeeper’s claim for injunctive relief6 is high in the citizen-suit context. The Court DENIES Baykeeper’s MIL No. 3.

4 II. MOTIONS TO AMEND7 5 Both Baykeeper and the Cities move to amend their pleadings. Because the deadline for amendment has passed, they must first satisfy Rule 16(b)’s good cause standard. Kamal v. Eden Creamery, LLC, 88 F.4th 1268, 1277 (9th Cir. 2023). Whether good cause exists primarily turns on “the diligence of the party seeking the amendment.” In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.3d 604, 609 (9th Cir. 1992)). While prejudice to the party opposing amendment “might supply additional reasons to deny a motion,” a lack of diligence by the party seeking amendment is enough to defeat a motion for leave to amend. Kamal, 88 F.4th at 1277 (quoting 13 Johnson, 975 F.2d at 609).

14 If a party shows good cause under Rule 16(b), it must then show that amendment is proper under Rule 15. Chang v. Cashman, 723 F. Supp. 3d 772, 779 (N.D. Cal. 2024). Courts should liberally permit amendment under Rule 15. Waldrip v. Hall, 548 F.3d 729, 732 (9th Cir. 2008).

17 “When considering whether to grant leave to amend, a district court should consider several factors including undue delay, the movant’s bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility.” Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020). Prejudice is the most important of these factors. Id. 22 A. Baykeeper’s Motion (ECF No. 320) 23 Baykeeper moves to amend its complaints against the Cities in two respects: (1) to clarify that it is alleging violations Prohibition A.1 and Limitation B.2 of the NPDES permit that was The Court also observes that the Cities seek only to challenge injunctive relief through their equitable defenses, not to defeat the entirety of Baykeeper’s claims. This reduces the concerns about invoking equitable defenses to defeat relief that the public might be entitled to.

7 Unless otherwise indicated, citations to the Rules in this section are to the Federal Rules of Civil issued during the pendency of this litigation, ECF No. 145, Ex. A (2022 Permit), and (2) to add a claim for violation of Provision C.14 in that new permit.

3 Baykeeper has not shown good cause to add violations of Prohibition A.1 and Limitation B.2 under the 2022 Permit. The regional water board responsible for the Cities’ NPDES permits issued the 2022 Permit on May 11, 2022. See 2022 Permit. Baykeeper has therefore been on notice of the new permit for over three years. What is more, the Cities made their position on the 2022 Permit clear to Baykeeper a year ago, when the Cities filed a notice asserting that “trial should be limited to violations alleged under the 2015 Permit since Baykeeper’s currently applicable Complaint does not allege any violations of the 2022 Permit.” ECF No. 216 at 8. Yet, Baykeeper did not move to amend its complaints until just two weeks before trial. That is far from diligent.

12 To be sure, it was Baykeeper’s position that it did not need to amend its complaints to pursue claims under the 2022 Permit. ECF No. 215 at 7, 9. But Baykeeper could easily have staked that position while simultaneously moving for leave to amend to eliminate any doubt about the status of the 2022 Permit in this case. By choosing to rest on its argument without moving for leave to amend, Baykeeper took the risk that the Court would disagree with that argument and then deny leave to amend when Baykeeper moved to do so belatedly. Indeed, that risk has now materialized.

19 Baykeeper was not diligent about amending its complaints to include violations of Provision A.1 and Limitation B.2 under the 2022 Permit, so it may not amend to include those claims.

22 The addition of a new claim for violation of Provision C.14 poses a slightly different issue, but the final result is the same. Baykeeper intends to allege violations of Provision C.14’s monitoring and reporting requirements. 2022 Permit §§ C.14.a.viii–ix; Proposed Compl. ¶¶ 162– 65, ECF No. 325, Ex. A. The basis for those violations—a document known as the Mid- Interpretive Report—was not available to Baykeeper until the Cities submitted the report to the regional water board on March 31, 2025. Cooper Decl. ¶ 5, ECF No. 320-2. From there, says of a C.14 claim. Id. ¶¶ 6–7. Assuming that Baykeeper’s account constitutes good cause, the Court nonetheless denies leave to add a C.14 claim because doing so would be futile under Rule 15.

3 Before a private party may file a citizen suit under the Clean Water Act, it must provide 60-day notice of intent to sue. Cottonwood Env’t L. Ctr. v. Edwards, 86 F.4th 1255, 1264 (9th Cir. 2023). Such notice is jurisdictional; courts lack subject matter jurisdiction over citizen suits not preceded by notice. Id. For a notice to be sufficient, it must “tell[] a target precisely what it allegedly did wrong, and when,” and it must do so with “reasonable specificity.” Id. (first quoting Ctr. For Biological Diversity v. Marina Point Dev., 566 F.3d 794, 800 (9th Cir. 2009) (en banc); then quoting S.F. BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1158 (9th Cir. 2002)).

10 Provision C.14 was newly added to the 2022 Permit—nothing similar to it was in the 2015 permit. Compare 2022 Permit, with 2015 Permit. Yet, Baykeeper did not send the Cities a new notice once the regional water board issued the 2022 Permit. So, the Court does not have jurisdiction over Baykeeper’s proposed C.14 claim unless Baykeeper’s earlier notices to the Cities, provided at the outset of this litigation, can be read to fairly encompass the proposed claim.

15 Those earlier notices cannot be read to do so. The earlier notices describe the Cities’ allegedly wrongful conduct in terms of discharges into waterways. ECF No. 1-1 at 9–12 (Sunnyvale); Case No. 5:20-cv-00826, ECF No. 1-1 at 9–11 (Mountain View). The notices did not identify any failures of water quality monitoring or reporting. Since Baykeeper’s proposed C.14 claim is based on alleged monitoring and reporting violations, Baykeeper’s earlier notices are not sufficient to support that claim. The Court would lack jurisdiction over Baykeeper’s proposed C.14 claim.

21 Accordingly, Baykeeper may not amend its complaints to add a C.14 claim, and the Court DENIES Baykeeper’s motion to amend in its entirety.

23 B. The Cities’ Motion (ECF No. 324) 24 The Cities move to amend their answers to add two new affirmative defenses based on due process: (1) that the permit provisions at issue are void for vagueness; and (2) that the Cities have been denied judicial review of those permit provisions.

27 The Cities lack good cause to add a void-for-vagueness defense at this late juncture.

1 decision in City and County of San Francisco v. EPA, 145 S. Ct 704 (2025) (CCSF II), on March 4, 2025. Ostensibly, that is because CCSF II criticized the vagueness of “end-result” limitations that make regulated entities responsible for water quality in a given waterbody—the same kind of limitation at issue in this case.

5 There are at least two problems with this explanation. For one, CCSF II was not a void- for-vagueness case. Rather, it addressed the EPA’s statutory authority. So, it cannot be said that CCSF II ratified a void-for-vagueness challenge that was previously unavailable. At best, it simply called attention to vagueness as a potential concern. See CCSF II, 145 S. Ct. at 717–18 (expressing concern that end-result limitations fail to provide notice of what NPDES permittees must do to avoid violating their permits). More fundamentally, the Cities should have been aware of their void-for-vagueness defense from the very beginning of this case. If the NPDES permits at issue are unconstitutionally vague now, they were unconstitutionally vague when Baykeeper first filed suit—the permits’ language has not changed. The Cities’ belated recognition of this possible defense, even if that recognition was aided by an intervening Supreme Court decision, is not good cause.

16 The Cities do have good cause to add their lack-of-judicial-review defense. While CCSF II did not help the Cities’ void-for-vagueness defense, that case did reveal another previously unavailable defense. In earlier proceedings, the Ninth Circuit held the Clean Water Act permitted end-result limitations. City & Cnty. of S.F. v. U.S. EPA, 75 F.4th 1074, 1090–91, 1093 (9th Cir. 2023) (CCSF I). Thus, under then-standing Ninth Circuit precedent, the Cities could not challenge permit provisions on the basis that they were impermissible end-result limitations. CCSF II expressly reversed the Ninth Circuit’s decision in CCSF I, holding that the Clean Water Act does not authorize such limitations. CCSF II, 145 S. Ct. at 720.

24 The Cities promptly pursued that new defense in this case, asking for leave to file a motion for reconsideration the same day that the Supreme Court issued CCSF II. ECF No. 276. The Court ultimately denied reconsideration on May 12, 2025, finding that the Cities could not collaterally attack permit validity in a Clean Water Act enforcement action. ECF No. 300. It was challenges in this action. And due to the procedural posture of various permit challenges in the state courts, the Cities believed that they could not raise permit validity challenges there, either.

3 5/27 Thorme Decl. ¶ 5, ECF No. 324-1. That is, the Cities did not realize that they may have been effectively barred from judicial review of their permit validity challenge until both CCSF II and this Court’s reconsideration order were decided. The Cities then raised their lack-of-judicial- review defense just three days later, on May 15, 2025. Pretrial Statement at 9, ECF No. 308. That is diligent enough to constitute good cause.

8 Still, the Cities may not add their lack-of-judicial-review defense because it is futile under Rule 15. At the threshold, it appears that the Cities lack the ability to assert a due process defense.

10 The Cities, as municipal entities, “have no standing to invoke . . . the provisions of the Fourteenth Amendment of the Constitution [which includes the Due Process Clause] in opposition to the will of their creator,” California in this instance. Coleman v. Miller, 307 U.S. 433, 441 (1939). The availability of a due process defense, then, depends on the answer to this question: Who allegedly violated the Cities’ due process rights? Based on discussion at the pretrial conference, there seem to be two possibilities. First, California may have deprived the Cities of due process by not allowing for judicial review under state law. Second, the Cities suggested that Baykeeper deprived them of due process. If the former, Coleman bars the Cities’ defense. If the latter, it is not clear how a private actor like Baykeeper could provide or deny judicial review to the Cities.

19 And that is before delving into the thorny question of whether the state action requirement has been met. See Drach v. Am. Kennel Club, Inc., 53 F.3d 338 (9th Cir. 1995) (“[T]o assert a denial of due process under the United States Constitution, [a party] must show the existence of state action.”).

23 Regardless, the Cities’ due process defense fails because there is no due process right to raise changes in law retroactively. The Cities are not seriously arguing that judicial review of their permits was cut off completely. California law gives them the right challenge their permits and seek judicial review, first before the state water board and then before the state courts. Cal. Water Code §§ 13320, 13330. Rather, the Cities appear to be protesting their inability to raise CCSF II Beam Distilling Co. v. Georgia, 501 U.S. 529, 541 (1991) (plurality opn.). Changes in law generally do not apply retroactively to civil cases unless those cases are “on direct review or [] not yet final.” United States v. Real Prop. Located at 20832 Big Rock Drive, Malibu, Cal. 90265, 51 4 F.3d 1402, 1406 (9th Cir. 1995) (citing Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 96–97 (1993)). If the time for the Cities to challenge their permits has passed, then that is the end of it.

6 If the Cities’ permit challenges are still pending, then they still have the opportunity to raise CCSF II as a defense. Either way, there is no due process violation.

8 The Court DENIES the Cities’ motion for leave to amend.8 9 C. Effect on the Scope of Trial 10 When the Court issued its earlier order setting the scope of trial, it held that evidence of the Cities’ conduct under the 2022 Permit was admissible at least because such evidence was relevant to the Cities’ defense that Baykeeper’s request for injunctive relief is moot. ECF No. 270 at 4–6.

13 The Court left open, however, the broader question of the scope of Baykeeper’s claims. Having now denied Baykeeper’s motion for leave to amend, the Court resolves that question.

15 As the Court explained in its earlier order, the complaint sets the scope of the action as to the conduct being challenged and relief available. See Echlin v. PeaceHealth, 887 F.3d 967, 977 (9th Cir. 2018) (citation omitted); Fed. R. Civ. P. 8(a)(3). Here, the conduct being challenged has not changed from the 2015 Permit to the 2022 Permit. Likewise, the Cities have been on notice that Baykeeper is seeking injunctive relief, which is forward-looking and therefore would necessarily cover future permits. See Nat. Res. Def. Council v. Cnty. of L.A., 840 F.3d 1098, 1103 (9th Cir. 2016) (courts may still issue injunctive relief after a new NPDES permit is issued).

22 Accordingly, Baykeeper’s complaints fairly encompass injunctive relief for violations of the 2022 Permit.

8 At the pretrial conference, the Cities raised the possibility of moving to stay this case pending further state proceedings related to CCSF II. The Court is strongly inclined to deny any request for a stay at this time. Trial is less than a week away. The parties, their attorneys, and witnesses have already cleared their schedules to accommodate trial. And this case has been pending for long enough. If an adverse judgment is entered against the Cities following the conclusion of trial, 1 The situation is different for civil penalties. Unlike injunctive relief, civil penalties are not a form of prospective relief. A defendant facing civil penalties is therefore not inherently on notice of the risk of civil penalties for violations of future permits in the same way it is on notice of potential injunctive relief for such violations. The operative complaints in this case do not mention the 2022 Permit, so the complaints did not place the Cities on notice that they could face civil penalties for violations of the 2022 Permit. Even though the alleged misconduct does not change from the 2015 Permit to the 2022 Permit—meaning that the Cities are well-prepared to dispute violations under the 2022 Permit—the failure of the complaints to give notice is not harmless. The Cities have reasonably litigated this case expecting that their monetary liability would be limited to violations of the 2015 Permit at most. This has likely shaped their litigation strategy, including how to approach settlement, allocate resources, and frame their arguments.

12 Drastically expanding the Cities’ potential liability on the eve of trial would be unfair.

13 To be clear, the Court does not hold that the Clean Water Act’s 60-day notice provision bars civil penalties under the 2022 Permit. Rather, it holds that civil penalties under the 2022 Permit are not available because Baykeeper’s complaints do not provide adequate notice of such penalties as a remedy under Rule 8(a)(3).

17 The Clean Water Act requires 60-day notice for two reasons: (1) to allow government entities the chance to step in and enforce their environmental regulations; and (2) to give the alleged violator a chance to comply with the environmental laws before expensive litigation commences. ONRC Action v. Columbia Plywood, Inc., 286 F.3d 1137, 1143 (9th Cir. 2002) (citing Hallstrom v. Tillamook Cnty., 493 U.S. 20, 29 (1989)). To achieve these purposes, the 60- day notice must describe what the defendant is allegedly doing wrong, i.e., the conduct that constitutes or causes violations of the Clean Water Act. See id.; Cottonwood, 86 F.4th at 1264 (quoting 40 C.F.R. § 135.3(a)). The notice is not required to describe “every ramification of a violation,” i.e., the remedies or penalties that the defendant may face. Cmty. Ass’n for Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir. 2002) (quoting Pub. Int. Rsch.

27 Grp. v. Hercules, Inc., 50 F.3d 1239, 1248 (3d Cir. 1995)); Nw. Env’t Advocs. v. U.S. EPA, 745 separate and independent from the 60-day notice. See Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 997 (9th Cir. 2000) (treating the question of remedies as different than questions about the sufficiency of a 60-day notice).

4 It is Rule 8(a)(3) that governs the availability of remedies. This Rule requires a plaintiff to make “a demand for the relief sought” in its complaint. Fed. R. Civ. P. 8(a)(3). Meanwhile, “[t]he scope of litigation is framed by the complaint.” L.A. Branch NAACP v. L.A. Unified Sch. Dist., 750 F.2d 731, 739 (9th Cir. 1984). Taken together, these two principles restrict plaintiffs to pursuing the remedies identified in their operative complaints. For the reasons above, Baykeeper’s operative complaints sufficiently encompass injunctive relief under the 2022 Permit, but not civil penalties under that Permit. Accordingly, the trial will be limited to civil penalties for violations of the 2015 Permit and injunctive relief for violations of the 2022 Permit.

12 III. STANDING 13 In the parties’ joint pretrial conference statement, the Cities also raised the possibility that they would challenge Baykeeper’s standing to allege violations of two different water quality standards: REC-1 (dealing with water contact recreation) and REC-2 (dealing with non-contact recreation). Pretrial Statement at 7. Because the Court had not clearly addressed the question of whether REC-1 and REC-2 required separate standing, the Court ordered the parties to submit briefs on the issue. ECF No. 315. The parties did so. ECF Nos. 326, 328.

19 The Cities’ standing objection appears to center around Article III’s injury-in-fact and traceability requirements. But before delving fully into the standing issue, it bears taking a step back to understand how REC-1 and REC-2 fit into this case. The relevant claim that Baykeeper has alleged on this issue is for violation of Limitation B.2. That Limitation prohibits the Cities from “caus[ing] or contribut[ing] to a violation of any applicable water quality standard.” 2015 Permit § B.2. REC-1 and REC-2 are such “applicable water quality standards.” That is, REC-1 and REC-2 represent different types of violations that fall under the same claim.

26 “[S]tanding is not dispensed in gross,” so a plaintiff “must demonstrate standing separately for each form of relief sought” as well as “for each claim he seeks to press.” DaimlerChrysler standing on a claim-by-claim and remedy-by-remedy basis. The Court is aware of no precedent, however, that requires standing analysis to be conducted on a violation-by-violation basis when each violation is part of the same claim. And the Court doubts that such an analysis is required.

4 See Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp., 123 F.4th 309, 325 (Davis, J., concurring)9 (explaining that a violation-by-violation approach to standing is inconsistent with Article III).

7 Still, the Court need not seek a definitive answer on the necessity of violation-by-violation standing analysis here. Even undertaking such an analysis, Baykeeper has standing to raise violations of both REC-1 and REC-2 standards. On summary judgment, the Court held that Baykeeper had standing. MSJ Order at 17, ECF No. 139. In reaching this conclusion, the Court rejected the Cities’ argument that Baykeeper had not connected its members’ injuries to a REC-2 violation. Id. at 11. The Court rejected that argument because “[Baykeeper’s] motion focuses on violations of the REC-1 standards,” implicitly holding that Baykeeper’s injuries were connected to REC-1. Id. Summary judgment therefore resolved the question of REC-1 standing in the affirmative. But if there were any doubt, the Court expressly reaffirms its holding now.

16 Baykeeper’s members testified that they avoided water contact because they were worried about pollution. Leong Decl. ¶ 14, ECF No. 81-4; TeBrake Decl. ¶ 17, ECF No. 81-5. Since REC-1 standards are designed to protect water contact recreation, those members’ inability to participate in such recreation due to fears about pollution are injuries traceable to REC-1 violations. See Inland Empire Waterkeeper v. Corona Clay Co., 17 F.4th 825, 832 (9th Cir. 2021). That is sufficient for standing.

22 Baykeeper also has standing to raise REC-2 violations. The REC-2 water standards are aimed in part towards the preservation of “sightseeing, or aesthetic enjoyment.” ECF No. 101-1, Ex. 40 § 2.1.16. The Court’s summary judgment order expressly found Baykeeper had established that its members’ aesthetic interests were harmed. MSJ Order at 9–13.

27 9 The Fifth Circuit voted to hear this case en banc. But no position was ultimately able to garner a majority of the en banc court, so the en banc court summarily affirmed the district court without 1 Accordingly, Baykeeper has standing to raise both violations of REC-1 and REC-2 water quality standards.

3 IV. OBJECTIONS TO LATE-DISCLOSED WITNESSES 4 What remains is the Cities’ objection to three of Baykeeper’s witnesses from three labs that Baykeeper used to conduct water quality testing. The Cities assert that Baykeeper did not disclose these witnesses under Federal Rule of Civil Procedure 26(a), so the witnesses must be excluded as a sanction under Federal Rule of Civil Procedure 37(c)(1). The Court disagrees.

8 The essential purpose of Rule 26(a)’s disclosure requirements is “to ‘accelerate the exchange of basic information’ that is ‘needed in most cases to prepare for trial or make an informed decision about settlement.’” City & Cnty. of S.F. v. Tutor-Saliba Corp., 218 F.R.D. 219, 221 (quoting Fed. R. Civ. P. 26(a) advisory committee’s note to 1993 amendment). To that end, courts apply Rule 26(a)’s disclosure requirements “with common sense . . . , keeping in mind the salutary purposes that the rule is intended to accomplish.” Sender v. Mann, 225 F.R.D. 645, 650 (D. Colo. 2004) (quoting Fed. R. Civ. P. 26(a) advisory committee’s note to 1993 amendment).

15 Based on these principles, the Court concludes that Baykeeper did not sufficiently disclose its three lab witnesses in its initial Rule 26 disclosures. There is no dispute that Baykeeper did not specifically name the three lab witnesses even though Rule 26(a) requires the disclosure of “the name . . . of each individual likely to have discoverable information . . . that the disclosing party may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). Since this case is about water quality, it is obvious that water quality tests would play a large role. Witnesses from the labs conducting these water quality tests would therefore likely have relevant, discoverable information and should have been disclosed.

23 Baykeeper argues that, even though it did not specifically name any lab witnesses, it implicitly disclosed those witnesses. Baykeeper observes that it produced the test results from each of the three labs at issue (along with other documents) at the same time that it served its initial disclosures. 6/2 Maharg Decl. ¶ 5, ECF No. 339. Then, Baykeeper cross-referenced those documents in its initial disclosures: 1 Baykeeper also refers Defendants to the documents produced contemporaneously with these written disclosures, which may 2 include additional names and some contact information for individuals that may have information regarding Baykeeper’s claims.

3 Individuals named in a particular document may have information on the subjects to which that document refers.

5 ECF No. 331-2 at 2. From Baykeeper’s perspective, this was a sufficient disclosure under the following chain of events: (1) the initial disclosures refer the Cities to Baykeeper’s document production; (2) the test results are in the document production, so the Cities were on notice of the test results; (3) the test results identify the labs, so the Cities were on notice of the labs; and (4) having notice of the labs, the Cities could have inquired about relevant witnesses at those labs.

10 This attenuated chain of events puts the onus on the Cities to identify potentially relevant witnesses while Rule 26 puts that onus on Baykeeper. It is also significantly less efficient than requiring Baykeeper to identify the labs it used and a witness from each lab. And perhaps most importantly, ratifying disclosure via document production encourages parties to “indulge in gamesmanship with respect to [their] disclosure obligations.” Fed. R. Civ. P. 26(a) advisory committee’s note to 1993 amendment. Although there is no reason to believe that Baykeeper engaged in any gamesmanship here, it is easy to imagine a less scrupulous party in some other case burying relevant witnesses in thousands of pages of documents and then proclaiming that it met its obligations because it referenced those thousands of pages. Thus, Baykeeper’s disclosure was inadequate under Rule 26.

20 In the specific circumstances here, however, that insufficiency is harmless under Rule 37 and therefore does not require exclusion. Fed. R. Civ. P. 37(c)(1). Baykeeper intends to offer the three lab witnesses for a very limited purpose—to authenticate the water quality testing results that Baykeeper’s experts use. The Cities have raised no doubts about those results’ authenticity either in their written briefing or during oral argument at the pretrial conference. So, allowing the lab witnesses to testify on authenticity will not place the Cities in an unfairly disadvantageous position.

27 As such, the Court OVERRULES the Cities’ objections. However, it limits Baykeeper’s This does not limit the scope of the Cities’ cross-examination in any way. But should the Cities || pursue lines of questioning on cross-examination that exceed the scope of Baykeeper’s direct- |} examination, Baykeeper may be permitted to redirect those lab witnesses to the full extent allowed || by the Rules of Evidence.

5 || V. CONCLUSION 6 In summary, the Court rules as follows: 7 e The Cities’ MIL No. 1 (ECF No. 285) is DENIED; 8 e The Cities’ MIL No. 2 (ECF No. 286) is DENIED; 9 e The Cities’ MIL No. 3 (ECF No. 288) is DENIED without prejudice; 10 e The Cities’ MIL No. 4 (ECF No. 290) is DENIED; 11 e Baykeeper’s MIL No. 1 (ECF No. 301) is GRANTED IN PART and DENIED IN 12 PART; 13 e Baykeeper’s MIL No. 2 (ECF No. 302) is GRANTED IN PART and DENIED IN 14 PART; 15 e Baykeeper’s MIL No. 3 (ECF No. 321) is DENIED; a 16 e Baykeeper’s Motion to Amend (ECF No. 320) is DENIED; 17 e The Cities’ Motion to Amend (ECF No. 324) is DENIED; 18 e Baykeeper has standing to raise violations of both REC-1 and REC-2 water quality 19 standards; 20 e The Cities’ objections to late disclosed witnesses (ECF No. 331) are 21 OVERRULED.

23 IT IS SO ORDERED.

24 Dated: June 6, 2025 EDWARD J. DAVILA 26 United States District Judge Case No: 5:20-cv-0N008294-FID