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HENDRICKS v. HANIGAN

Court of Appeal of California, Fourth Appellate District, Division One

March 14, 2002, Filed

D037609

Opinion

This action arises out of both Governor Gray Davis's (Governor Davis's) January 17, 2001 proclamation of a state of emergency in California due to severe electrical shortages (proclamation), and the state Legislature's appropriation of $ 400 million for 12 days of emergency electricity purchases pursuant to that proclamation. On January 19, 2001, the day Governor Davis signed Senate Bill No. 7X (SB 7X), which added section 200 to the Water Code appropriating the $ 400 million for electricity purchases, plaintiff and appellant Ruth Hendricks (Hendricks) filed an action against defendant and [*2]  respondent Thomas M. Hannigan, as Director of the California State Department of Water Resources (the DWR), seeking to enjoin the DWR's expenditure of these funds.

On January 24, 2001, the court heard and denied Hendricks's application for a temporary restraining order (TRO), finding that Hendricks had failed to demonstrate a reasonable probability of success on the merits. Thereafter, the court set a hearing on an expedited basis on the DWR's demurrer to Hendricks's complaint. On January 26, 2001, the court sustained the DWR's demurrer, without leave to amend, finding that (1) Hendricks had failed to state a claim as a matter of law, and (2) the action was moot as the $ 400 million had been expended by the time of the hearing. This timely appeal follows.

On appeal, Hendricks claims that the court erred in sustaining the DWR's demurrer without leave to amend because (1) California's electricity problem is not an "emergency" that would justify Governor Davis's proclamation and the subsequent expenditures; (2) the DWR's purchase of electricity pursuant to SB 7X violated California's competitive bidding statutes; (3) the expenditures constituted an unconstitutional gift of [*3]  public funds; and (4) the expenditures constituted an illegal waste of public funds. Hendricks also asserts that her claim for an injunction to prevent expenditure of the $ 400 million is not moot despite the fact that the money has now been expended, as (a) the matter is one of broad interest that is likely to recur; and (b) she should be granted leave to amend to seek recovery of the expenditures on behalf of the DWR to the extent they exceed just and reasonable rates.

Although the issues raised by Hendricks's complaint are technically moot, we will exercise our discretion to review this appeal on the merits. We conclude that Hendricks's claims are without merit, and the granting of leave to amend is not warranted. Accordingly, we affirm the judgment.

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2002 Cal. App. Unpub. LEXIS 3055 *; 2002 WL 397648

RUTH HENDRICKS, Plaintiff and Appellant, v. THOMAS M. HANIGAN, as Director, etc., Defendant and Respondent.

Notice:   [*1]    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR PURPOSES OF RULE 977.

Prior History: APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIC 761051. Judith M. McConnell, Judge.

Disposition: Affirmed.

CORE TERMS

electricity, emergency, expenditure, proclamation, energy, moot, demurrer, funds, leave to amend, rates, state of emergency, expended, merits, gift, appropriation, conditions, shortage, declare, enjoin, waste of public funds, gift of public funds, public funds, restraining, Resources, election, competitive bidding requirement, public interest, mitigation, contracts, temporary