Sarale v. Pac. Gas & Electric Co., s. C059873, C060515.

• Decision Date: 15 October 2010
• Docket Number: Nos. C059873, C060515.,s. C059873, C060515.
• Citation: 189 Cal.App.4th 225,10 Cal. Daily Op. Serv. 13, 222,2010 Daily Journal D.A.R. 1,117 Cal.Rptr.3d 24
• Court: California Court of Appeals Court of Appeals
• Parties: 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.

189 Cal.App.4th 225

117 Cal.Rptr.3d 24

10 Cal. Daily Op. Serv. 13,222

2010 Daily Journal D.A.R. 15,900

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.

Nos. C059873, C060515.

Court of Appeal, Third District, California.

Oct. 15, 2010.

**27 Geiger, Coon & Keen, Stockton, and Charles E. Keen for Plaintiffs and Appellants William A. Sarale et al.; Jones & Dyer, Gregory F. Dyer and Kristen K. Preston, Sacramento, for Plaintiff and Appellant Richard G. Wilbur.

Cassel Malm Fagundes and P. Gary Cassel, Stockton; Sedgwick, Detert, Moran & Arnold, Frederick D. Baker, Gayle L. Gough and Kelly J. Savage, San Francisco, 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.

SIMS, J.

*230 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, 55 Cal.Rptr.2d 724, 920 P.2d 669 ( 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 *231 PG & E claims actually exists under Code of Civil Procedure section 1060,³ and (3) consider **28 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.

*232 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, 105 Cal.Rptr.2d 714 [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...." **29 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 *233 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 **30 [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.

*234 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...