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Tarbet v. East Bay Municipal Utility District

California Court of Appeals, First District, First Division

April 10, 2015

GREGORY TARBET, Plaintiff and Appellant,
v.
EAST BAY MUNICIPAL UTILITY DISTRICT, Defendant and Respondent.

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

Alameda County Super. Ct. No. RG12615347

Page 349

[Copyrighted Material Omitted]

Page 350

COUNSEL

Law Offices of Wallace C. Doolittle, Wallace C. Doolittle and James Patrick Downs for Plaintiff and Appellant.

East Bay Municipal Utility District Office of General Counsel, Jylana Collins, Craig S. Spencer and Derek Todd McDonald for Defendant and Respondent.

Page 351

OPINION

DONDERO, J.

INTRODUCTION

Plaintiff Gregory Tarbet appeals from a judgment denying his petition for writ of mandate and dismissing his complaint. Plaintiff sued the East Bay Municipal Utility District (District) after it refused to provide water service to his property without the grant of an easement. He claimed the District should be required to comply with a water service provision contained in a previously approved and recorded final parcel map, which did not include the District’s proposed easement. The trial court denied his petition for writ of mandate and sustained the District’s demurrer to the complaint without leave to amend. We affirm.[1]

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff owns the property at 21603 Banyan Street in Hayward. In 2005, the former owners started the process of subdividing a lot into three separate residential lots, one of which is plaintiff’s property. In that year, the County of Alameda (County) accepted and approved Tentative Parcel Map 8743 pertaining to the property under Resolution No. 05-15. The Resolution contains the following condition: “Water services is [sic] to be provided to each lot and are to be connected to the [District] water system and installed at the expense of the subdivider in accordance with the requirements of said District and the approval by the Director of Public Works.” The resolution also provides, “A letter from the [District] stating that it has agreed to provide water to each lot in the land division shall be submitted to the Director of Public Works.”

The former owners requested a letter from the District verifying water service was available for each lot. The District stated it would provide water service contingent upon compliance with its regulations. A water service

Page 352

assessment was prepared by the District on August 15, 2005. The document states: “THIS IS NOT A PROPOSAL TO PROVIDE WATER SERVICES.”[2] An approved parcel map (Approved Map) was thereafter recorded. The Approved Map provides the District a utility easement on the newly subdivided properties in the form of a water main extension from Banyan Street to provide water to each lot.[3] Plaintiff purchased one of the three lots at foreclosure in September 2009. The property did not have water service at the time of purchase.

Thereafter, plaintiff applied to the District for water service. The District provided a water service estimate for the installation of the service connection, [4] based on a 260-foot water main extension that extends 15 feet onto plaintiff’s property. The District required a 15-foot-long easement beyond plaintiff’s original lot line to allow the installation and maintenance of the pipeline and blowoff assembly.[5] Plaintiff deemed the proposal “unacceptable, ” in part because the District sought to impose the easement on his property. The District refused to provide service based on alterations requested by plaintiff because his layout would have made it impossible to reach his meter from the proposed water main at a right angle.[6]

On October 3, 2012, plaintiff filed a second amended petition for writ of mandate and, in the alternative, a second amended complaint (SAC), which is the operative complaint in this appeal. By his petition for writ of mandate under Code of Civil Procedure section 1085, he sought a directive to compel the ...


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