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Sarale v. Pacific Gas & Electric Co.

October 15, 2010

WILLIAM R. SARALE ET AL., ETC., PLAINTIFFS AND APPELLANTS,
v.
PACIFIC GAS & ELECTRIC COMPANY, DEFENDANT AND RESPONDENT.
RICHARD G. WILBUR, AS TRUSTEE, ETC., PLAINTIFF AND APPELLANT,
v.
PACIFIC GAS & ELECTRIC COMPANY, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of San Joaquin County, Carter P. Holly, Judge, and from a judgment of the Superior Court of Yuba County, Debra L. Givens, Judge. Affirmed. (Super. Ct. Nos. CV033900 & YCSCCVCV080000252).

The opinion of the court was delivered by: Sims, J.

CERTIFIED FOR PUBLICATION

These consolidated appeals involve claims by plaintiff landowners that Pacific Gas & Electric Company (PG&E) engaged in excessive trimming of commercially productive walnut trees located under the utility's power lines. The first appeal is taken by plaintiffs William R. Sarale and Julie Ann Sarale from a judgment of dismissal entered by the San Joaquin Superior Court. The second appeal is taken by plaintiff Richard G. Wilbur, as a trustee, from a judgment of dismissal entered by the Yuba County Superior Court.

The trial courts in both cases sustained PG&E's demurrers without leave to amend and dismissed the complaints pursuant to Public Utilities Code section 1759.*fn1 Section 1759 bars actions in superior court that will hinder or interfere with the exercise of regulatory authority by the California Public Utilities Commission (the commission). (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 918 & fn. 20 (Covalt).)

On appeal, the Sarales contend the trial court erred by failing to (1) adjudicate their claims under section 2106,*fn2 (2) determine whether the easement PG&E claims actually exists under Code of Civil Procedure section 1060,*fn3 and (3) consider their claim for interference with their property rights under Civil Code section 52.1.*fn4

Wilbur contends the trial court erred in dismissing his case when the court had jurisdiction to adjudicate his claim that PG&E engaged in unreasonable tree trimming practices.

We shall conclude that the superior court has jurisdiction to determine whether a utility has a power line easement over a particular property. However, trial courts lack jurisdiction to adjudicate claims that a power utility has engaged in excessive trimming or unreasonable vegetation management when the utility has acted under guidelines or rules set forth by the commission. Section 1759 safeguards the commission's ability to implement statewide safety protocols from being undermined by an unworkable patchwork of conflicting determinations regarding what constitutes necessary or proper management of power lines. In short, challenges to PG&E's tree trimming as unreasonable, unnecessary, or excessive lie within the exclusive jurisdiction of the commission to decide.

Although the Sarales seek a judicial determination with respect to whether PG&E has an easement at all, this claim is defeated by the Sarales' own first amended complaint, which pleaded and attached a right-of-way in favor of PG&E.

Accordingly, we shall affirm the judgments of dismissal in the Sarales' and Wilbur's cases.

FACTUAL AND PROCEDURAL BACKGROUND

The Sarale Case

We take the following facts from the Sarales' first amended complaint. (See White v. State of California (2001) 88 Cal.App.4th 298, 304 [on review of dismissal after sustaining of demurrer, we "assume the truth of all facts properly pled and the truth of facts that may be implied or inferred from these allegations"].)

The Sarales own land on East Eight Mile Road in Linden. PG&E claims an easement across the Sarales' land for electric transmission lines pursuant to a written grant of right-of-way dating from 1915. The right-of-way gives PG&E "the right of erecting, constructing, reconstructing, replacing, repairing, maintaining and using for the transmission and distribution of electricity, a single line of towers and wires suspended thereon and supported thereby, and wires for telephone and telegraph purposes, and all necessary and proper . . . appliances and fixtures for use in connection therewith, and also a right of way along the same of a uniform width of 25 feet . . . , together with the right of ingress thereto and egress therefrom . . . ." The right-of-way further gives PG&E "full right and liberty of cutting and clearing away all trees and brush on either side of said center line whenever necessary or proper for the convenient use and enjoyment of the said line of towers and wires and right of way . . . ."

Until November 2004, PG&E periodically trimmed the Sarales' walnut trees beneath the transmission lines approximately 10 feet away from the lines. After November 2004, however, over the Sarales' protest, PG&E began trimming the walnut trees up to 20 feet away from the lines, "thereby physically destroying large portions of and rendering unproductive what had been producing trees."

In March 2005, the Sarales filed a claim for damages with PG&E. In its August 2005 denial, PG&E asserted it was "'legally mandated to take appropriate measures to maintain vegetation clearances and, accordingly, we have trimmed and continue to trim all trees that may interfere with our electric power lines - pursuant to both our rights under our easement/right of way as well as the rules and regulations under which we are required to operate.'"

In October 2007, the Sarales sued PG&E for damages and declaratory and injunctive relief. The Sarales denied the existence of the utility easement on their land. Alternatively, if the easement were found to exist, they sought a declaration that PG&E was "authorized by law to trim no further than the distance established by the [commission], radially measured at time of trimming, and not further, without [the Sarales'] permission," as well as a declaration that "the scope of . . . any easement existing" was defined by PG&E's "use of the claimed easement . . . throughout the eighty-nine years prior . . . in which trimming was performed in accordance with the 10 foot safety limit prescribed by law." They sought an injunction preventing PG&E from "destroying vegetation or trimming crops under cultivation . . . to the extent that such activity exceeds acts authorized, regulated or controlled within the exclusive jurisdiction of the [commission]." They also sought damages for trespass and deprivation of their civil rights, as well as statutory civil penalties and attorney fees.

PG&E demurred to the first amended complaint, contending (among other things) that section 1759 barred the court from exercising jurisdiction over the Sarales' claims because to do so would interfere with "an ongoing supervisory or regulatory program over which the [commission] has sole jurisdiction." The utility also filed a motion to strike various portions of the first amended complaint dealing with the trespass cause of action, the prayer for treble damages, and the prayer for a "prior restraint" on PG&E's speech relating to tree trimming regulations.*fn5

The trial court sustained the demurrer without leave to amend. The court reasoned: "The acts alleged by [the Sarales] herein, involving and related to . . . PG&E's vegetation management practices under and around its power lines, fall within the [commission]'s regulatory jurisdiction. This court therefore has no jurisdiction over [the Sarales'] first amended complaint for damages and declaratory and injunctive relief and is preempted from issuing any rulings thereon. Before proceeding against PG&E in superior court . . . [the Sarales] must first seek a finding from the [commission] that PG&E's vegetation management practices are excessive or otherwise out of conformance with [commission] regulations. If the [commission] found in [the Sarales'] favor on these matters, [the Sarales] might then seek damages before [the superior court] for the wrongs they allege."

Despite sustaining the demurrer without leave to amend, the trial court also purported to grant PG&E's motion to strike various portions of the complaint.

The Sarales filed a timely notice of appeal from the judgment of dismissal.

The Wilbur Case

We take the following facts from Wilbur's first amended complaint.

Wilbur is the owner of property on Speckert Road in Yuba County that has been in his family since 1957. In 1908, by virtue of a written grant of right-of-way, PG&E's predecessor in interest acquired "the right and easement of erecting, constructing, re-constructing, replacing, repairing, maintaining and using, from time to time as [PG&E] may see fit, for the transmission and distribution of electricity, and for all purposes connected therewith, upon, across, over and under the lands hereinafter described, conduits and lines, or lines, of poles and towers or either, and wires suspended thereon and supported thereby, and other structures, and wires for telephone and telegraph purposes, and all necessary and proper cross-arms, braces, connections, fastenings and other appliances and fixtures for use in connection therewith, and also a right of way and easement for the said structures and purposes, of a uniform width of one hundred (100) feet, the center line of which is hereinafter described, together with the right of ingress thereto and egress therefrom, upon, over, and across the said lands . . . ." The right-of-way provides that the utility will "have full right and liberty of using such right of way for all purposes connected with the construction, maintenance and use of said lines of poles or towers, wires, conduits and other structures." The right-of-way also provides, however, that the utility "shall avoid, so far as it reasonably can, interfering with the use by [Wilbur] of such lands for mining, agricultural and other purposes."

Wilbur's family has grown walnut trees in the easement area since the mid 1960's, and until 2008 PG&E had been trimming the trees periodically to a height of 12 feet to keep them clear of the power lines. In February 2008, however, Wilbur learned that PG&E planned to trim approximately 80 walnut trees to a height of seven feet and 40 trees to a height of 10 feet. A normal productive walnut tree is at least 12 feet high; a seven-foot tree is unproductive and worthless.

In March 2008, Wilbur objected to the "unreasonable tree trimming" and informed PG&E that any entry into the easement by PG&E or its contractors without Wilbur's permission would be considered a trespass.

On March 27, 2008, Wilbur sued PG&E for injunctive and declaratory relief to prevent PG&E from "unreasonably pruning trees and vegetation to the extent that they are destroyed or made economically unuseable" and to obtain a judicial determination that "the current and historic easement use is the limit of the easement despite any written description to the contrary" and a declaration of "the nature and extent of the pruning allowed to PG&E under the easement, and the limits on the easement."

PG&E demurred to the first amended complaint, contending the court did not have jurisdiction to interfere with the commission's regulation, supervision, and inspection of PG&E's vegetation management program and that injunctive relief would interfere with the rules and regulations of various agencies.

The trial court sustained the demurrer without leave to amend and dismissed Wilbur's complaint. The court reasoned the commission has "broad authority . . . to mandate utility line vegetation clearance requirements, and . . . the Superior Court lacks jurisdiction to invalidate, alter, or to otherwise interfere with the [commission]'s exercise of its jurisdiction." The court also concluded PG&E was "not limited to 'historical use' of the easement, but may comply with the [commission] requirements, even to the extent that compliance exceeds 'historical use.'"

Wilbur filed a timely notice of appeal from the judgment of dismissal.

DISCUSSION

I. Constitutional and Statutory Provisions Relating to the Commission

"The commission is a state agency of constitutional origin with far-reaching duties, functions, and powers . . . including the power to fix rates, establish rules, hold various types of hearings, award reparation, and establish its own procedures." (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 905, citing Cal. Const., art. XII, §§ 1-6.) In addition, the Legislature, which has the "'plenary power . . . to confer additional authority and jurisdiction upon the commission,'" can broaden the commission's authority. (Consumers Lobby Against Monopolies, supra, at p. 905, quoting Cal. Const., art. XII, § 5).

Employing its plenary power, the Legislature enacted the Public Utilities Act (§ 201 et seq.), which "vests the commission with broad authority to 'supervise and regulate every public utility in the State.'" (Covalt, supra, 13 Cal.4th at p. 915.) This broad authority authorizes the commission to "'do all things, whether specifically designated in [the Public Utilities Act] or in addition thereto, which are necessary and convenient' in the exercise of its jurisdiction over public utilities." (Ibid., italics omitted.) "'The commission's authority has been liberally construed' [citation], and includes not only administrative but also legislative and judicial powers." (Ibid.)

Commission action is subject to judicial review, the "manner and scope" of which is established by the Legislature. (Cal. Const., art. XII, § 5.) "Pursuant to this constitutional provision, the Legislature enacted article 3 of chapter 9 of the Public Utilities Act, entitled 'Judicial Review' (§ 1756 et seq.)," which "prescribes a method of judicial review that is narrow in both 'manner and scope.'" (Covalt, supra, 13 Cal.4th at p. 915.) Among the provisions of that article is subdivision (a) of section 1759, which provides that "[n]o court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court."

Despite this limitation on the jurisdiction of trial courts to review commission rules and decisions, the Legislature has provided for a private right of action against utilities for unlawful activities and conduct. Specifically, section 2106 provides for an action to recover for loss, damage, or injury "in any court of competent jurisdiction" by any corporation or person against "[a]ny public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, any law of this State, or any order or decision of the commission."

"[R]ecognizing a potential conflict between sections 2106 and 1759," the California Supreme Court "has held section 2106 'must be construed as limited to those situations in which an award of damages would not hinder or frustrate the commission's declared supervisory and regulatory policies.'" (Koponen v. Pacific Gas & Elec. Co. (2008) 165 Cal.App.4th 345, 351 (Koponen), quoting Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, 4 (Waters).)

In Covalt, the Supreme Court "'established a three-part test to determine whether an action is barred by section 1759: (1) whether the commission had the authority to adopt a regulatory policy; (2) whether the commission had exercised that authority; and (3) whether the superior court action would hinder or interfere with the commission's exercise of regulatory authority.'" (Koponen, supra, 165 Cal.App.4th 345, 351.)

With this background, we turn to the question of whether section 1759 bars the superior court from exercising jurisdiction over the Sarales' and Wilbur's claims against PG&E.

II. Jurisdiction over Claims of Excessive Tree Trimming by Electric Utility Companies

A. Part 1 of the Covalt Test: the Commission Has Authority to Regulate Tree Trimming around Power Lines

The Sarales concede the commission "has authority to regulate trimming distances around power lines," and Wilbur does not argue otherwise. As we have noted, the commission has authority to "supervise and regulate every public utility in the State" and "do all things . . . necessary and convenient in the exercise of such power and jurisdiction." (§ 701.) More specifically, the commission has the express authority to "require every public utility" to maintain its systems and equipment "in a manner so as to promote and safeguard the health and safety of its employees, passengers, customers, and the public." (§ 768.) The regulating of tree trimming distances around power lines effectuates this purpose. As the commission itself has stated,*fn6 "The question of appropriate tree-trimming standards and practices has a broad reach, encompassing issues of worker safety, public safety, fire suppression, and environmental consequences . . . ." (Bereczky v. Southern California Edison Company (1996) 65 Cal.P.U.C.2d 145, 147.) Thus, we conclude the commission's authority includes regulating tree trimming around power lines.

B. Part 2 of the Covalt Test: The Commission Has Exercised its Regulatory Authority over Tree Trimming around Power Lines

The commission's General Order No. 95 provides rules governing the construction of overhead electric lines. Rule 35 of General Order No. 95 specifically governs tree trimming.

Before 1996, rule 35 provided only in "very general terms" that "'[w]here overhead wires pass through trees, safety and reliability of service demand that a reasonable amount of tree trimming be done in order that the wires may clear branches and foliage.'" (Re San Diego Gas And Electric Company (1996) 68 Cal.P.U.C.2d 333, 336.) Prompted by the "unfortunate fatality" of a farm worker, however, in 1994 the commission "opened [a] proceeding to investigate the tree trimming practices of SDG&E [San Diego Gas and Electric Company]." (Id. at pp. 335, 346.) A month later, the commission "expanded the scope of [its] investigation . . . for the purpose of reviewing [the] tree trimming practices of" "all other investor-owned California electric utilities" "to ensure that [its] investigation [would have] statewide scope and effect." (Id. at p. 335.)

In April 1996, a settlement was proposed that would adopt "[a] table of specific clearances . . . to provide ascertainable minimum standards under . . . rule [35]" and would add "certain exceptions . . . for circumstances where compliance by the utilities was either impracticable or beyond their control." (Re San Diego Gas And Electric Company, supra, 68 Cal.P.U.C.2d at p. 336.) In September 1996, the commission decided to "adopt the material terms of the settlement as an interim device to ensure public safety and system reliability" pending conclusion of the proceeding. (Id. at pp. 339, 341.) The interim modification of rule 35 provided for certain "minimum clearances" that were to be maintained "between line conductors and vegetation under normal conditions." (Id. at p. 348.) The modification also provided that the rule did "not apply where the utility has made a 'good faith' effort to obtain permission to trim or remove vegetation but permission was refused or unobtainable." (Ibid.)

In January 1997, the commission "adopt[ed] final standards for trimming trees which are in proximity to overhead electric lines of utilities within [its] jurisdiction." (Re San Diego Gas And Electric Company (1997) 70 Cal.P.U.C.2d 693, 694.) The standards the commission adopted "mandate[d] minimum distances that must be maintained at all times between conductors and surrounding vegetation, and provide[d] additional guidelines for clearances that should be established at the time of trimming, where practicable, between vegetation and energized conductors and other live parts of the overhead lines." (Ibid.) In explaining its action, the commission stated as follows: "Our action today does not limit or mandate the maximum limits of tree trimming, or specify the manner in which trimming activities must be accomplished. We are selecting a safe minimum standard to insure system safety and reliability, but we are not adopting comprehensive rules and procedures to specify how the minimum obligation of the utilities must be ...


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