San Diego Gas & Electric Co. v. Superior Court, G016256
| Decision Date | 28 February 1995 |
| Docket Number | No. G016256,G016256 |
| Citation | 32 Cal.App.4th 1062,38 Cal.Rptr.2d 811 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 32 Cal.App.4th 1062, 36 Cal.App.4th 1461, 41 Cal.App.4th 539, 46 Cal.App.4th 137 32 Cal.App.4th 1062, 36 Cal.App.4th 1461, 41 Cal.App.4th 539, 46 Cal.App.4th 137, 63 USLW 2557, 159 P.U.R.4th 424 SAN DIEGO GAS & ELECTRIC COMPANY, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Martin and Joyce COVALT, Real Parties in Interest. |
Martin and Joyce Covalt filed suit against San Diego Gas and Electric (SDG & E) claiming that dangerously high levels of electric and magnetic fields (EMF's) emitted from power lines adjacent to their home had caused them emotional distress, made their home uninhabitable and destroyed its market value. SDG & E's demurrer was overruled. It petitions this court for writs of prohibition and mandate to compel the trial court to sustain its demurrer and dismiss the complaint. It contends the California Public Utilities Commission (PUC) has exclusive jurisdiction under Public Utilities Code section 1759 1 over the issues raised by the complaint. We agree and grant a writ of mandate ordering the trial court to sustain SDG & E's demurrer without leave to amend.
* * *
The Covalts filed their complaint against SDG & E on December 16, 1993. 2 It alleged that an SDG & E power line easement, on which it maintained high voltage transmission lines, distribution and feeder equipment lines, and step down transformers, ran adjacent to their single family residence in San Clemente. 3 In February 1990, SDG & E modified the power lines increasing the EMF levels on the Covalts' property. 4 There were no allegations that SDG & E failed to construct or maintain the equipment in compliance with PUC guidelines.
The complaint alleged nine causes of action against SDG & E. The first five were essentially for personal injury as they each pertain to allegations that the Covalts have been exposed to "unreasonably high" levels of EMF's, that persons exposed to EMF's have an "elevated risk" of contracting cancer or other similar diseases and the Covalts have suffered injury as a result of the exposure. 5 There are no allegations that the Covalts have any present physical injuries as a result of exposure to EMF's; rather they allege their fear of contracting cancer in the future is their injury. A "medical monitoring" cause of action alleges the Covalts and their children will incur ongoing medical expenses to monitor them for diseases. Intentional and negligent infliction of emotional distress causes of action allege that by exposing the Covalts to increased levels of EMF's, SDG & E caused them emotional harm, nervousness and loss of sleep. Strict and negligent products liability causes of action allege the delivery of electricity is the sale of a product, the Covalts used the product in the manner intended, the product was defective because it contains EMF's which can cause cancer and other life threatening diseases and the Covalts suffered injury as a result of using the product.
The Covalts' complaint also alleges three causes of action relating to damage to their real property as a result of the presence of the power lines. A trespass cause of action alleges SDG & E is emitting EMF's onto their property without their consent, making it unsafe and uninhabitable and reducing its value. A nuisance cause of action alleges the emission of EMF's onto their property injured their health and enjoyment of their property constituting a nuisance under Civil Code section 3479. An inverse condemnation cause of action alleges SDG & E, as a public utility, can condemn land for the public good in providing electricity. Its construction of power lines adjacent to the Covalts' property caused their property to be exposed to EMF's. Local zoning laws make the property usable for no other purpose but residential. However, the EMF's have made the property unfit for human habitation, resulting in a taking of the property without compensation. Finally, the Covalts pleaded a cause of action for injunctive relief compelling SDG & E to discontinue emitting EMF's onto their property.
SDG & E demurred to the complaint contending the PUC had exclusive jurisdiction to decide issues concerning health hazards posed by EMF's and the steps, if any, utilities should take to reduce EMF levels or decrease human exposure to them. The demurrer was overruled. We granted an alternative writ to consider the issues raised by SDG & E's demurrer and stayed all proceedings in the trial court.
SDG & E seeks a writ of mandate or a writ of prohibition directing the trial court to sustain its demurrer and dismiss the complaint. We must determine whether the legal remedy is inadequate before addressing the merits of the petition. (Code Civ.Proc., § 1086; Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 637, 9 Cal.Rptr.2d 216.)
An order overruling a demurrer is not appealable, and generally review is obtained on appeal from the final judgment. (County of Santa Barbara v. Superior Court (1971) 15 Cal.App.3d 751, 754, 93 Cal.Rptr. 406.) That remedy is normally presumed to be adequate. (Hansra v. Superior Court, supra, 7 Cal.App.4th at p. 638, 9 Cal.Rptr.2d 216.) However, such an order can be reviewed by prohibition when it raises a question of jurisdiction. (County of Santa Barbara v. Superior Court, supra, 15 Cal.App.3d at pp. 754-755, 93 Cal.Rptr. 406; Pacific Tel. & Tel. Co. v. Superior Court (1963) 60 Cal.2d 426, 430, 34 Cal.Rptr. 673, 386 P.2d 233.) Additionally, mandamus will lie when it will prevent "a needless and expensive trial and reversal." (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894, 157 Cal.Rptr. 693, 598 P.2d 854; see also Hansra v. Superior Court, supra, 7 Cal.App.4th at p. 638, 9 Cal.Rptr.2d 216.)
SDG & E points out that it has already defended itself in two virtually identical lawsuits prosecuted by the same plaintiffs' attorneys. Both resulted in defense judgments. One case was not appealed. (Zuidema v. SDG & E (Super.Ct.San Diego County, 1991, No. 638222, judgment for defendant entered May 28, 1993).) The other is pending appeal in this court. (McCartin v. SDG & E (G016462, app. pending).) While the same jurisdictional issue might be reached in the McCartin appeal, if this case is allowed to proceed, SDG & E will incur the expense of yet another trial before the issue is resolved. Review is also warranted because the issue presented is of widespread interest. (Brandt v. Superior Court (1985) 37 Cal.3d 813, 816, 210 Cal.Rptr. 211, 693 P.2d 796.) Many more litigants are waiting in the wings to test out the same theories. Writ relief, if granted, would prevent needless and expensive trials. Therefore, we consider the merits of the petition.
The Covalts pleaded several personal injury causes of action stemming from their fears that they will contract cancer in the future as a result of exposure to EMF's. SDG & E demurred to those causes of action on the ground they failed to state facts sufficient to constitute a cause of action. (Code Civ.Proc., § 430.10, subd. (e).) Although SDG & E argued the facts were insufficient because the trial court lacked jurisdiction over the subject (Code Civ.Proc., § 430.10, subd. (a)), we conclude the facts are insufficient for other reasons.
Preliminarily, we note the Covalts make no attempts to defend their personal injury causes of action. Throughout their briefs they emphatically state their complaint does not rest upon any claims that EMF's are in fact harmful, but only upon whether the public fear of EMF's, regardless of the reasonableness of that fear, decreases the value of their real property giving them causes of action for trespass and inverse condemnation. At oral argument their counsel stated the Covalts were no longer claiming damages resulting from their fear of contracting cancer, although they still sought damages for medical monitoring for that disease. 6 Despite the Covalts' concessions on these causes of action, we conclude the facts pleaded are insufficient to state personal injury causes of action.
The only personal injury alleged by the Covalts is their fear of future illness. Recently, in Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, the Supreme Court held that in the absence of actual physical injury "emotional distress engendered by a fear of cancer or other serious physical illness or injury following exposure to a carcinogen or other toxic substance" is not compensable unless the plaintiff pleads and proves "that the fear stems from a knowledge, corroborated by reliable medical and scientific opinion, that it is more likely than not that the feared cancer will develop in the future due to the toxic exposure." (Id. at pp. 973-974, 25 Cal.Rptr.2d 550, 863 P.2d 795.)
Among the policy reasons cited by the court were that everyone is exposed to carcinogens every day, creating an unlimited class of potential plaintiffs unless restricted by the imposition of some limitation (id. at pp. 990-991, 25 Cal.Rptr.2d 550, 863 P.2d 795); the "more likely than not...
To continue reading
Request your trial
-
Jordan v. Georgia Power Co., A95A1585
...issue of injury allegedly caused by EMFs has arisen in several contexts in other states. See generally San Diego Gas & Elec. Co. v. Superior Court of Orange County, 36 Cal.App.4th 1461, 41 Cal.App.4th 539, 38 Cal.Rptr.2d 811, rehearing granted 41 Cal.Rptr.2d 220, 895 P.2d 56 (1995); Borenki......
-
EMFs and the potential for injury: real danger or overreaction?
...Is Suggested by Study at 5 Utilities, WALL ST. J., at B4 (Jan. 11, 1995). (28.)In San Diego Gas & Electric Co. v. Superior Court, 38 Cal.Rptr.2d 811 (Cal.App. 1995), the California Court of Appeal, Fourth District, held that the plaintiffs' fear of cancer claims from power lines emittin......