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Date: 10-15-2010

Case Style: William R. Sarale v. Pacific Gas & Electric Company

Case Number: C059873

Judge: Robie

Court: California Court of Appeal, Third Judicial District on appeal from the Superior Court, San Joaquin County

Plaintiff's Attorney: Geiger, Coon & Keen, LLP, Stockton, California and Charles E. Keen for Plaintiffs and Appellants William A. Sarale et al.; Jones & Dyer, Gregory F. Dyer and Kristen K. Preston for Plaintiff and Appellant Richard G. Wilbur.

Defendant's Attorney: Cassel Malm Fagundes and P. Gary Cassel; Sedgwick, Detert, Moran & Arnold, Frederick D. Baker, Gayle L. Gough and Kelly J. Savage for Defendant and Respondent.

Frank R. Lindh, Helen W. Yee and Pamela Nataloni, attorneys for amicus curiae Public Utilities Commission of the State of California upon request of the Court of Appeal for the Third Appellate District.

Description: 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 1759.1 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 2106,2 (2) determine whether the easement PG&E claims actually exists under Code of Civil Procedure section 1060,3 and (3) consider their claim for interference with their property rights under Civil Code section 52.1.4

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.5

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,6 “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 accomplished. [¶] In recognition of this circumstance, we will decline to adopt a declaration of our jurisdiction as part of our order. In our view, such a course would be fraught with the danger of acting outside of our authority in this proceeding.” (Id. at p. 699.)

In the wake of the commission‟s decision in January 1997, the first paragraph of rule 35 now provides as follows:

“Where overhead wires pass through trees, safety and reliability of service demand that tree trimming be done in order that wires may clear branches and foliage by a reasonable distance. The minimum clearances established in Table 1, Case No. 13, measured between line conductors and vegetation under normal conditions, shall be maintained. (Also see Appendix E for tree trimming guidelines).” (Re San Diego Gas And Electric Company, supra, 70 Cal.P.U.C.2d at pp. 701-702.)

Case No. 13 in Table 1 specifies the minimum amount of radial clearance that must exist at all times between bare line conductors and tree branches or foliage. The guidelines in Appendix E specify “minimum clearances that should be established, at time of trimming, between the vegetation and the energized conductors and associated live parts where practicable.” The guidelines recognize that “[v]egetation management practices may make it advantageous to obtain greater clearances than those listed.” (Re San Diego Gas And Electric Company, supra, 70 Cal.P.U.C.2d at p. 705.)

The exception to rule 35 that applies where the utility has made a good faith effort to obtain permission to trim or remove vegetation but permission was refused or unobtainable remains part of the rule in the wake of the commission‟s 1997 decision.

From the foregoing, it is quite apparent that the commission has exercised its jurisdiction to regulate tree trimming around power lines. The Sarales argue, however, that General Order No. 95 represents only “a limited exercise of the commission‟s authority as to minimum trimming clearances.” In the Sarales‟ view, the commission has “purposefully declined to exercise its regulatory authority as to maximum allowable trimming,” and therefore the second part of the Covalt test is not satisfied because their claims relate to excessive trimming.

PG&E contends the Sarales‟ “interpretation of the matter at issue is far too narrow. The real matter at issue here is the management of vegetation near power lines -- specifically, tree trimming. The [commission] has adopted extensive regulations in this area.” PG&E also contends that “even if the matter at issue is considered to be maximum trimming allowances, . . . the [commission] has repeatedly exercised its jurisdiction and expressed its position on maximum trimming allowances.”

For purposes of applying the Covalt test, it does not matter whether we characterize the commission‟s actions broadly, as addressing “the management of vegetation near power lines,” or narrowly, as addressing “minimum [tree] trimming clearances.” What matters is that the commission has exercised its authority to adopt a regulatory policy relating to tree trimming around power lines – regardless of how that policy may be characterized.

C

Part 3 of the Covalt Test: Superior Court Action Will Hinder or Interfere with the Commission‟s Regulatory Authority The crucial question presented in these cases arises in part three of the Covalt test, which requires us to determine whether action by the superior court on the claims tendered by the Sarales and Wilbur would hinder or interfere with the commission‟s exercise of its regulatory authority. (Koponen, supra, 165 Cal.App.4th at p. 351.) “The [commission] has exclusive jurisdiction over the regulation and control of utilities, and once it has assumed jurisdiction, it cannot be hampered, interfered with, or second-guessed by a concurrent superior court action addressing the same issue.” (Covalt, supra, 13 Cal.4th at p. 918, fn. 20, italics omitted, quoting Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 681.)

In Covalt, supra, 13 Cal.4th 893, plaintiffs sued a power company for damages based on the emission of electromagnetic radiation from power lines on land adjacent to theirs. (Id. at pp. 910-911.) The Supreme Court determined that the commission was “still actively pursuing [a] broad policy inquiry into the potential health effects of powerline electric and magnetic fields that it initiated in 1991.” (Id. at p. 934.) The court further determined that allowing the plaintiffs to recover damages for nuisance based on their claim that the electric and magnetic fields emanating from the power lines “would interfere with the policy of the commission on powerline electric and magnetic fields” because such recovery “would be inconsistent with the commission‟s conclusion . . . that the available evidence does not support a reasonable belief that 60 Hz electric and magnetic fields present a substantial risk of physical harm.” (Id. at p. 939.)

The Covalt court emphasized: “Having thus vested this court with limited jurisdiction to review commission actions, the Legislature then made it clear in section 1759 of the Public Utilities Act that no other court has jurisdiction either to review or suspend the commission's decisions or to enjoin or otherwise „interfere‟ with the commission's performance of its duties . . . .‟” (Covalt, supra, 13 Cal.4th at p. 916.) Thus, the Covalt court unanimously declared that “an action for damages against a public utility pursuant to section 2106 is barred by section 1759 not only when an award of damages would directly contravene a specific order or decision of the commission, i.e., when it would „reverse, correct, or annul‟ that order or decision, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would „hinder‟ or „frustrate‟ or „interfere with‟ or „obstruct‟ that policy.” (Id. at p. 918, italics added.) Consistent with this conclusion, the Covalt court upheld the dismissal of a lawsuit claiming that electric and magnetic fields from high-voltage lines threatened the safety of nearby home occupants. (Id. at p. 951.) Because the commission had properly addressed the effects of electric and magnetic fields given off by power lines, the Supreme Court deferred to the commission‟s determination that the danger was inconsequential. (Id. at p. 926-935.)

Our Supreme Court reached a similar conclusion in Waters, supra, 12 Cal.3d 1. Waters involved a plaintiff who sued a telephone company for damages for failing to provide adequate telephone service. (Id. at p. 4.) The Supreme Court held that section 1759 barred the action in superior court because “the commission has approved a general policy of limiting the liability of telephone utilities for ordinary negligence to a specified credit allowance, and has relied upon the validity and effect of that policy in exercising its rate-making functions.”

(Id. at p. 10.) The Waters court declared that superior court actions alleging unlawful conduct by utilities “„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.‟” (Id. at p. 4.) Thus, the high court concluded that “to entertain suits such as plaintiff‟s action herein and authorize a substantial recovery from [the telephone company] would thwart the foregoing policy.” (Id. at p. 10.) Wilbur deemphasizes the result in Covalt and Waters to focus on the Court of Appeal‟s decision in Koponen, supra, 165 Cal.App.4th 345. The Koponen court held that landowners could proceed with a lawsuit against telecommunications companies seeking to add fiber-optic cable alongside extant PG&E power line easements. (Id. at p. 348.) Although the commission had granted PG&E‟s application to allow telecommunications companies to install the fiber-optic cables, the Koponen court concluded that the lawsuits could proceed because PG&E was seeking to allow a use of a right-of-way that the company did not own. (Id. at p. 353.)

Assuming that Koponen was correctly decided, the case is distinguishable. Koponen turned on the fact that the commission had authorized a new, different, and additional use of a right of easement. Here, by contrast, the easements have been in use for the same purpose of power line siting and maintenance for a long time – since 1908 in the Wilbur case and 1915 in the Sarale case. The commission‟s tree-trimming regulation does not apply a new, different, or additional use to the easement but seeks only to correct a practice that turned out to be unsafe under previous formulation. In short, the commission‟s guidelines for tree trimming addresses continuing safety concerns applicable to overhead power lines.

Already in 1915, the California Supreme Court noted that “the highly destructive power of electricity when carried in quantities sufficient for power purposes” required power companies “to exercise a high degree of care in placing the wires so as not to interfere with traffic on the ordinary highway and so as to avoid contact with and injury to any person or object which may reasonably be expected to pass under the wires.” (Fairbairn v. American River Electric Co. (1915) 170 Cal. 115, 117-118.) Power line maintenance and safety protocols to avoid damage to areas surrounding the lines will continue to be in existence for the foreseeable future.

The Sarales‟ and Wilbur‟s suits against PG&E essentially advance claims of “excessive” tree pruning based on past vegetation management practices. Section 1759 saves the commission and utility companies from defending against myriad lawsuits every time adjustments are made to protocols for vegetation management around power lines. The record in this case indicates that clearances for vegetation management surrounding power lines have been revised by the commission in 1948, 1962, 1964, 1966, 1967, 1968, 1980, 1988, 1990, 1992, 1996, 1997, and 2005. Allowing owners of land containing overhead power lines to seek individualized judicial determinations of what might be “necessary” or “proper” vegetation would cause a regulatory nightmare for the commission that section 1759 was intended to prevent.

Consistent with section 1759, the superior court may adjudicate whether a utility has an easement on a particular parcel of real property, and, if so, whether the grant creating the easement specifies any unit measure distance limit on tree trimming (e.g., 27 feet from the center of the power lines).

None of the plaintiffs in these cases base their claims on an allegation that PG&E trimmed trees beyond a distance measure set forth in a grant creating the utility easement. Instead, the Sarales characterize the trimming as being beyond what the commission has mandated. Thus, the Sarales contend the trimming exceeds the scope of PG&E‟s easement to the same extent that PG&E exceeded the commission‟s guidelines. Similarly, at oral argument, Wilbur conceded that he does not seek to challenge any trimming by PG&E that is mandated by the commission. Indeed, Wilbur admitted he could not bring such a suit. Instead, he seeks to challenge trimming by PG&E that is beyond the minimum clearances established by the commission, as well as beyond PG&E‟s historical tree trimming practices on his property.

The commission‟s adoption of a minimum trimming standard reflects its determination that, in every situation, trimming clearance must meet the minimum standard in order to sufficiently ensure the safety of the electric system, surrounding property, and the public. Such a standard necessarily recognizes that, in certain situations, safety considerations will demand that trimming exceed the minimum. The question of whether trimming must exceed the minimum standards on any particular section of an overhead powerline is a factual issue that is within the exclusive jurisdiction of the commission to decide. (Covalt, supra, 13 Cal.4th at p. 918.)

Consequently, the trial courts in these cases correctly determined that they lacked jurisdiction to adjudicate the Sarales‟ and Wilbur‟s challenges to the trimming by PG&E as excessive.

D

Our holding does not leave the Sarales and Wilbur without a remedy for excessive tree trimming. The plaintiffs may contest Rule 35‟s necessity and implementation before the commission. (See, e.g., Morgan v. Pacific Gas and Electric Company (1987) 25 Cal.P.U.C.2d 393, 394-395 [adjudicating complaint that requested penalties against PG&E and its contractors for “mutilating” trees in the Russian River area under the authority General Order 95].) Exhaustion of administrative remedies is usually the correct answer to challenge of a regulatory rule. “„The purpose of the rule of exhaustion of administrative remedies is to provide an administrative agency with the opportunity to decide matters in its area of expertise prior to judicial review. [Citation.] The decisionmaking body “„is entitled to learn the contentions of interested parties before litigation is instituted.‟”‟” (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 794, quoting Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 384.) Here, the exhaustion requirement comports with section 1759‟s intent to allow the commission to act effectively in safeguarding people and property from danger.

In supplemental briefing filed at our request, the commission informs us that one of these remedies is injunctive relief by which the commission enjoins a utility from engaging in a particular action. “The Commission uses the same standard as California courts to decide if a [temporary restraining order] (TRO) should be issued. Under this standard, the moving party must show all of the following: (1) irreparable injury to the moving party without the TRO; (2) no harm to the public interest; (3) no substantial harm to other interested parties; and (4) a likelihood of prevailing on the merits.” (Application of San Diego Gas & Electric Company for Review of its Proactive De-Energization Measures and Approval of Proposed Tariff Revisions (U902E) (Decision Granting the Motion for a Temporary Restraining Order Regarding San Diego Gas & Electric Company‟s Power Shut-off Plan) (2009) ___ Cal.P.U.C. ___; 2009 Cal.P.U.C. Lexis 423, at pp. *8-9.) Thus, the commission may grant timely and appropriate relief in instances of excessive vegetation management by a California utility company.

In short, section 1759 does not leave plaintiffs without a remedy for excessive tree trimming by PG&E. However, their remedy lies before the commission rather than in superior court.

E

Having determined that the trial courts lacked jurisdiction to adjudicated plaintiffs‟ claims that the tree trimming on their properties was excessive, we turn to the question of whether the Sarales are entitled to remand for adjudication of their claim that PG&E does not have an easement at all on their land.7 As we shall explain, the grant of a right-of-way in favor of the utility company attached by the Sarales to their first amended complaint conclusively refutes their denial of the easement.

The first paragraph of the Sarales‟ first amended complaint states: “Written easements upon Plaintiffs‟ land claimed by Defendants are attached as Exhibit „B‟ to this complaint . . . .” Exhibit “B” contains the 1915 grant of right-of-way for electric transmission lines on the land now owned by the Sarales. In pertinent part, the grant provides the utility company with “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 . . . .”

Even though the Sarales attached the grant of a right-of-way to their complaint, they nonetheless deny the existence of the easement. Specifically, their first amended complaint states: “Plaintiffs do not admit that this easement burdens PLAINTIFFS‟ LAND.”

On appeal from a judgment of dismissal after the sustaining of a demurrer, a court must “treat as true not only the complaint‟s material factual allegations, but also facts that may be implied or inferred from those expressly alleged.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) We also “accept as true both facts alleged in the text of the complaint and facts appearing in exhibits attached to it. If the facts appearing in the attached exhibit contradict those expressly pleaded, those in the exhibit are given precedence. (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1626-1627.)” (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567-568.) Here, the grant of a right-of-way attached by the Sarales to their first amended complaint conclusively negates an allegation of the Sarales‟ complaint, namely the nonexistence of the utility easement on their land. The Sarales‟ allegation cannot withstand the clear proof of the easement‟s existence provided by the language of the 1915 grant.

No interpretation of the scope of the easement described in the grant is necessary to dispose of the Sarales‟ denial of the easement‟s existence. However, even if it were, the scope of an easement presents a question of law rather than a factual dispute. “„Under section 806 of the Civil Code “the extent of a servitude is determined by the terms of the grant . . . ” . . . .‟ (Pasadena v. California-Michigan etc. Co. (1941) 17 Cal.2d 576, 578.) „In construing an instrument conveying an easement, the rules applicable to the construction of deeds generally apply.‟ (Scruby v. Vintage Grapevine, Inc. [(1995)] 37 Cal.App.4th [697,] 702; see also Civ. Code, § 1066 [grants interpreted as contracts].) The instrument, „unless it is ambiguous, must be construed by a consideration of its own terms. The meaning and intent thereof is a question of law and the reviewing court is not bound by the trial court's findings and conclusions regarding such intent and meaning. [Citations.]‟ (Keeler v. Haky (1958) 160 Cal.App.2d 471, 474.)” (Gray v. McCormick (2008) 167 Cal.App.4th 1019, 1024, italics added.)

The Sarales plead no facts suggesting that the plain terms of the PG&E right-of-way are ambiguous or uncertain. Their allegation that “Plaintiffs do not admit that this easement burdens PLAINTIFFS‟ LAND” contains no facts suggesting why this is so. The allegation is both a contention and a conclusion of law. As such, it is insufficient to negate the clear facts of the pleaded right-of-way. “„We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, quoting Serrano v. Priest (1971) 5 Cal.3d 584, 591, italics added.)

In short, there is no remaining factual dispute in the Sarales‟ case because the existence of the easement is established by the exhibit attached to their complaint. (Mead v. Sanwa Bank California, supra, 61 Cal.App.4th at pp. 567-568.) For lack of factual dispute in the Sarales‟ case, the demurrer was properly granted without leave to amend and the judgment of dismissal correctly entered.

F

Our conclusion that the judgments of dismissal must be affirmed obviates our need to discuss the Sarales‟ arguments that the trial court erred by (1) granting PG&E‟s motion to strike their complaint after sustaining PG&E‟s demurrer without leave to amend, (2) admitting improper, extrinsic evidence regarding “proper tree-trimming standards,” and (3) failing to grant a stay of the action so they could challenge PG&E‟s action before the commission. The trial court‟s lack of jurisdiction under section 1759 disposes of these contentions. So too, we need not consider Wilbur‟s argument that the trial court erred in concluding that PG&E is “not limited to „historical use‟ of the easement, but may comply with the [commission] requirements, even to the extent that compliance exceeds „historical use.‟” This conclusion constituted an alternate basis for sustaining PG&E‟s demurrer because the trial court concluded Wilbur was not entitled to the judicial declaration he sought. A correct judgment must be affirmed regardless of the trial court‟s reasoning. (People v. Smithey (1999) 20 Cal.4th 936, 971-972.) Consequently, we need not address the trial court‟s alternate basis for a judgment of dismissal correctly entered against Wilbur.

* * *

See: http://www.courtinfo.ca.gov/opinions/documents/C059873.PDF

Outcome: The judgments of dismissal in case Nos. C059873 (Sarale) and C060515 (Wilbur) are affirmed. In both cases, PG&E shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

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