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Cooney v. The California Public Utilities Commission

United States District Court, N.D. California

July 15, 2014



CLAUDIA WILKEN, District Judge

Defendants the State of California, the California Public Utilities Commission (CPUC), CPUC President Michael Peevey and California Attorney General Kamala Harris (the State Defendants) and Defendant Itron, Inc. have filed motions to dismiss in this case.[1] Plaintiff opposes the motions as to Defendants Peevey, Harris and Itron. Acknowledging that her claims against the CPUC and the State of California are barred by the Eleventh Amendment, Plaintiff has filed a request that the Court dismiss her claims against the CPUC and the State of California without prejudice to refiling in state court. Having considered the parties' papers, the Court GRANTS Plaintiff's request that the Court dismiss her claims against the CPUC and the State of California (Docket No. 36), GRANTS the State Defendants' motion to dismiss (Docket No. 26) and GRANTS Itron's motion to dismiss (Docket No. 28).


This case relates to Plaintiff's claims that she was injured by radio waves released by smart meters installed on her house and in her neighborhood. Plaintiff alleges that, as a result of these injuries, she has been "forced to take refuge in the National Radio Quiet Zone in Green Bank, WV" where she "sleeps in a cabin without electricity and can tolerate being in electricity for only a few hours a day." Complaint ¶ 1. Plaintiff alleges that Defendants violated bans on human experimentation, fraudulently received federal funds, violated federal laws regulating pollutants, caused her personal injury, violated her civil rights, violated her constitutional rights under the First, Fourth, Fifth, Ninth, Tenth and Fourteenth amendments, committed battery and defrauded her. Plaintiff also alleges a defective product liability claim against Defendant Itron.

Plaintiff seeks over $120 million in damages, but states that her damages will be reduced to $20 million if injunctive relief is granted such that she is able to return to live in California. In addition to monetary damages, Plaintiff seeks declaratory relief and an injunction requiring the replacement of all smart grid technology with the original analog equipment "until such time as a safe, reliable, and efficacious Smart Grid can be designed, manufactured, procured, properly tested for health and safety, and implemented; or until the people, through a referendum or through their elected representatives, decide to discard, disband, and dismantle the Smart Grid program." Complaint ¶ 125.


I. State Law Claims and Claims for Damages Against Attorney General Harris and CPUC President Peevey

Defendants Harris and Peevey argue that the claims against them are barred on several grounds. First, any claims for damages are barred by the Eleventh Amendment, which bars damages actions against state actors acting in their official capacity. Will v. Michigan Dep't of State Police , 491 U.S. 58, 71 (1989); Flint v. Dennison , 488 F.3d 816, 824-25 (9th Cir. 2007). Moreover, the Eleventh Amendment bars any state law claims asserted against Defendants Harris and Peevey. Pennhurst State School & Hosp. v. Halderman , 465 U.S. 89, 121 (1984). The Court grants State Defendants' motion to dismiss on these grounds and bars any claims against Harris and Peevey for state law claims or for money damages. Because amendment would be futile, dismissal is without leave to amend.

II. Claims for Injunctive and Declaratory Relief Against Defendants Harris and Peevey

A. Defendant Harris

State Defendants next argue that the Eleventh Amendment also bars claims for prospective injunctive relief against Defendant Harris. As stated above, the Eleventh Amendment generally bars federal lawsuits against a state. However, Ex parte Young provides an exception for "actions for prospective declaratory or injunctive relief against state officers in their official capacities for their alleged violations of federal law." 209 U.S. 123, 155-56 (1908).

State Defendants argue that the Ex parte Young exception to the Eleventh Amendment does not apply to Defendant Harris because she has no connection to the implementation of the Smart Grid. Ex parte Young requires that the state official sued "must have some connection with the enforcement of the act." Id. at 157. The California Attorney General has only a general constitutional duty "to see that the laws of the state are uniformly and adequately enforced." Cal. Const. art. V, § 13.

Plaintiff counters that she wrote letters to Defendant Harris, notifying her of Plaintiff's concerns with the Smart Grid. Plaintiff asserts, "Since the Plaintiff did send a letter describing the circumstances to Defendant Harris personally, and Defendant Harris was and is the chief enforcer of the law in the State, responsible for ensuring that all State agencies and employees comply with law, then she had a reasonable duty to protect the Plaintiff." Plaintiff's Opposition, Docket No. 33 at 7. However, Plaintiff provides no authority for this proposition and the Court is aware of none.

Indeed, the Ninth Circuit has held that the connection "must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit." Los Angeles County Bar Ass'n v. March Fong Eu , 979 F.2d 697, 704 (9th Cir. 1992). Here, Defendant Harris has only a generalized duty to enforce state law. She does not have any specific authority over the Smart Grid. Accordingly, Plaintiff's claims for prospective injunctive and declaratory relief against Defendant Harris are dismissed. Because amendment would be futile, the dismissal is without leave to amend.

B. Defendant Peevey

State Defendants argue that Defendant Peevey is entitled to legislative immunity because the CPUC "is not an ordinary administrative agency, but a constitutional body with broad legislative and judicial powers." Docket No. 34 at 6 (quoting Wise v. Pac. Gas & Elec. Co. , 77 Cal App. 4th 287, 300 (1999). The Supreme Court has held that "state and regional legislators are entitled to absolute immunity from liability under § 1983 for their legislative activities." Bogan v. Scott-Harris , 523 U.S. 44, 49 (1998). "Absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity.'" Id. at 54 (quoting Tenney v. Brandhove , 341 U.S. 367, 376 (1951)).

Here, Plaintiff is challenging Defendant Peevey's involvement in the implementation of the Smart Grid. For example, Plaintiff's primary contention is that "Defendants recklessly approved, mandated, facilitated, or allowed the Smart Meter roll out without conducting adequate research as to the health effects of Smart Meter radiation" and that they continue to proceed with the Smart Meter roll out "after being presented with reliable research, scientific and empirical evidence proving the detrimental health effects of Smart Meter and similar radiation on humans." Complaint ¶¶ 25, 26. Such decisions are "discretionary, policymaking decision[s]" typically granted legislative immunity. Bogan , 523 U.S. at 55. Plaintiff correctly notes that purely ministerial acts are not protected under legislative immunity. Notwithstanding Plaintiff's unsupported contention that "[a]ll of the misconduct described in the Complaint is non-discretionary, administrative, or ministerial in nature, " Plaintiff challenges discretionary legislative activity. Plaintiff's Opposition at 11. Accordingly, the Court finds that Defendant Peevey is entitled to legislative immunity and dismisses Plaintiff's claims against him. Because amendment would be futile, the dismissal is without leave to amend.

III. Claims Against Defendant Itron

A. State Law Claims

Defendant Itron argues that Plaintiff's action is barred by both state and federal law. Itron first notes that the California legislature authorized the CPUC to adopt rulemaking related to advanced metering technologies for the Smart Grid. Cal. Pub. Util. Code §§ 8360, 8362. Further, the CPUC has authorized the implementation of the Smart Grid and specifically authorized SDG&E to purchase smart meters from Defendant Itron. Accordingly, Defendant Itron argues that the Court lacks jurisdiction over Plaintiff's case challenging the implementation of the Smart Grid and the installation of Itron smart meters. Defendant Itron relies on California Public Utilities Code § 1759, which provides,

No 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.

Cal. Pub. Util. Code § 1759. However, § 2106 of the California Public Utility Code provides,

Any 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, shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom.... An action to recover such loss, damage, or injury may be brought in any court of competent jurisdiction by any corporation or person.

Cal. Pub. Util. Code § 2106.

The California Supreme Court has held that § 1759 bars private actions against utilities where the relief granted would undermine a regulatory regime established by the CPUC. San Diego Gas & Elec. Co. v. Superior Court (Covalt) , 13 Cal.4th 893, 902-03 (1996). Moreover, § 2106 is limited to "those situations in which an award of damages would not hinder or frustrate the commission's declared supervisory and regulatory policies." Waters v. Pacific Tel. Co. , 12 Cal.3d 1, 4 (1974). The California Supreme Court has applied a three-part test to resolve any conflict between § 1759 and § 2106. To determine whether an action is barred by § 1759, the California courts ask: "(1) whether the PUC had the authority to adopt a regulatory policy on the subject matter of the litigation; (2) whether the PUC had exercised that authority; and (3) whether action in the case before the court would hinder or interfere with the PUC's exercise of regulatory authority." Kairy v. SuperShuttle International , 660 F.3d 1146, 1150 (9th Cir. 2011) (citing Covalt , 13 Cal.4th at 923-35).

Here, the State Legislature has directed the CPUC to "determine the requirements for a smart grid deployment plan consistent with Section 8360 and federal law" and to implement the smart grid "in a manner that does not compromise customer or worker safety." Cal. Pub. Util. Code §§ 8362, 8363. Based on that authority, the CPUC has, among other things, specifically authorized SDG&E to purchase Defendant Itron's product. Accordingly, a finding that Defendant Itron's products are unsafe under state law would undermine the CPUC's policy decision that installation of Itron's products as part of SDG&E's Smart Grid was consistent with the State Legislature's directive safely to implement the smart grid.

Moreover, California Public Utilities Code § 1702 creates a process by which any person may file a complaint before the CPUC regarding any rule or decision applicable to a public utility. Review of decisions on such complaints rests with the California Supreme Court and the California courts of appeal. Cal. Pub. Util. Code §§ 1703, 1759. Indeed, a group challenged the safety of the Smart Meters installed by Pacific Gas and Electric (PG&E), which was resolved by the CPUC. See CPUC Decision 12-05-007 (May 10, 2012); CPUC Decision 12-06-017 (June 7, 2012); CPUC Decision 10-12-001 (December 12, 2010). Plaintiff has not filed such a complaint.

Defendant Itron argues that § 1759 prohibits Plaintiff's entire action. However, Defendant Itron does not cite any cases in which a court has dismissed federal causes of action based on § 1759, and the Court is aware of none. Cf. Kairy , 660 F.3d at 1148 (addressing "whether a federal district court lacks subject matter jurisdiction to determine whether passenger stage corporation drivers are employees or independent contractors under California law); Nwabueze v. AT&T Inc., 2011 U.S. Dist. LEXIS 8506, *33 (N.D. Cal.) (addressing contention that the "plaintiffs' state law claims should be dismissed because they are within the exclusive jurisdiction of the [CPUC]"). Accordingly, the Court will dismiss Plaintiff's state law claims against Defendant Itron for lack of subject matter jurisdiction. Because amendment would be futile, the dismissal is without leave to amend.

B. Federal Claims

Defendant Itron further argues that Plaintiff has failed to state a federal claim. On a motion under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan , 792 F.2d 896, 898 (9th Cir. 1986). However, this principle is inapplicable to legal conclusions; "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, " are not taken as true. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly , 550 U.S. at 555).

When granting a motion to dismiss, the court is generally required to grant the plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc. , 911 F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendment would be futile, the court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc. , 912 F.2d 291, 296 (9th Cir. 1990).

Plaintiff alleges two federal claims against Defendant Itron.[2] First, she alleges that Defendant Itron has violated federal prohibitions on human experimentation, citing 45 C.F.R. part 46 and 42 U.S.C. § 3515b. Section 3515b provides:

None of the funds appropriated by this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts shall be used to pay for any research program or project or any program, project, or course which is of an experimental nature, or any other activity involving human participants, which is determined by the Secretary or a court of competent jurisdiction to present a danger to the physical, mental, or emotional well-being of a participant or subject of such program, project, or course, without the written, informed consent of each participant or subject, or a participant's parents or legal guardian, if such participant or subject is under eighteen years of age. The Secretary shall adopt appropriate regulations respecting this section.

42 U.S.C. § 3515b. Title 45 C.F.R. part 46 sets out the Department of Health and Human Services' rules for the "Protection of Human Subjects" in research "conducted, supported or otherwise subject to regulation by any federal department or agency which takes appropriate administrative action to make the policy applicable to such research." 15 C.F.R. § 46.101.

Plaintiff asserts that "Defendants did not properly inform Plaintiff or any other California residents that they would be the subjects of a state-wide grand experiment on the health effects of Smart Meter radiation." Complaint ¶ 38. Plaintiff further asserts that "Defendants never followed up or kept records of the health effects that they were supposed to be studying." Id. at ¶ 40. However, there are no allegations to support a finding that the smart meter program was an "experiment" or research project regarding the health effects of radiation. Accordingly, these statutes and regulations are not applicable to Defendants' conduct in this case. The Court dismisses Plaintiff's human experimentation claim. Because amendment would be futile, the dismissal is without leave to amend.

Plaintiff next alleges that Defendants violated the Hazardous Substances Labeling Act, which prohibits, among other things, "[t]he introduction or delivery for introduction into interstate commerce of any misbranded hazardous substance or banned hazardous substance." 15 U.S.C. § 1263. Plaintiff bases this claim on her allegation that "radiation from Smart Meter equipment qualifies as a hazardous substance based on its toxicity." Complaint ¶ 67. However, Defendant Itron has not introduced the radio frequency signals into interstate commerce. Rather, it creates Smart Meters, which are sold in interstate commerce. Moreover, the radio frequency signals emitted by Defendant Itron's product are neither a hazardous substance requiring special labeling nor a banned hazardous substance. Indeed, the Hazardous Substances Labeling Act is concerned with items such as "[c]harcoal briquettes and other forms of charcoal in containers for retail sale and intended for cooking or heating, " turpentine, fireworks, and products containing chemicals such as formaldehyde, benzene and methyl alcohol. 16 C.F.R. §§ 1500.12-1500.14. Accordingly, the Court finds that Plaintiff has failed to state a claim under the Hazardous Substances Labeling Act. Because amendment would be futile, the dismissal is without leave to amend.


For the foregoing reasons, the Court GRANTS the State Defendants' motion to dismiss (Docket No. 26) and GRANTS Defendant Itron's motion to dismiss (Docket No. 28). In addition, the Court GRANTS Plaintiff's request that the Court dismiss her claims against the CPUC and the State of California (Docket No. 36).


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