Schell v. Southern Cal. Edison Co.

• Decision Date: 29 August 1988
• Docket Number: No. E004131,E004131
• Citation: 204 Cal.App.3d 1039,251 Cal.Rptr. 667
• Court: California Court of Appeals Court of Appeals
• Parties: Wayne SCHELL, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Respondent.

Page 667

251 Cal.Rptr. 667

204 Cal.App.3d 1039

Wayne SCHELL, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Respondent.

No. E004131.

Court of Appeal, Fourth District, Division 2, California.

Aug. 29, 1988.

[204 Cal.App.3d 1041] Ernest E. Gilbert, Lake Elsinore, for plaintiff and appellant.

John R. Bury, Tom P. Gilfoy, Mark C. Allen, III, and Douglas P. Ditonto, Rosemead, for defendant and respondent.

OPINION

HEWS, Associate Justice.

Plaintiff Wayne Schell appeals from a judgment of dismissal entered pursuant to the sustaining of a general demurrer to his amended complaint without leave to amend.

FACTUAL AND PROCEDURAL HISTORY

Public Utilities Code section 739 ¹ provides that the Public Utilities Commission (PUC) "shall designate a baseline quantity of gas and electricity which is necessary to supply a significant portion of the reasonable energy needs of the average residential customer." ( § 739, subd. (a).) The section also provides that the PUC require all gas and electric corporations to establish low "baseline rates" for supplying these baseline quantities to residential customers. ( § 739, subd. (c).)

Section 739.5 provides, in turn, that the PUC shall require that any "master-meter" customer who furnishes gas or electric service through submeters to tenants of a "mobilehome park, apartment building, or similar residential complex" shall charge each such tenant at the same domestic rate, including baseline service, as though the tenant had been receiving service directly from the electric or gas corporation. ( § 739.5, subd. (a).) This section also directs the PUC to require that corporations furnishing services to the master-meter customer establish rates for such service "at a level which will provide a sufficient differential to cover the reasonable average costs to master-meter customers of providing submeter service." (Ibid.)

Pursuant to its mandate under section 739, the PUC designated baseline quantities of electricity and volumes of gas on an interim basis in 1976. (Dec.No. 86087 (1976) 80 Cal.P.U.C. 182.) In its decision, the PUC concluded that the term "residential customer" in section 739 included single-family houses, townhouses, apartments, condominiums, and mobile homes; and excluded transient trailer parks, ordinary motels and hotels, campgrounds, hospitals, convalescent homes, student rooming houses, college dormitories, fraternities and sororities, and military barracks "because of the transient nature of their inhabitants." (Id., at pp. 188-189.)

As mandated by section 739.5, the PUC required that the gas and electric corporations within the state establish domestic rates encompassing the baseline quantity requirement for master-metered facilities. Respondent (Cal.Ed.) established two such domestic rate schedules--a general domestic rate schedule for multifamily accommodations (DMS-I) and a specific domestic rate schedule exclusively for mobile home parks (DMS-II).

Plaintiff is the owner of a recreational vehicle park. On September 11, 1986, plaintiff filed a complaint against Cal.Ed. for damages for "DISCRIMINATION, DENIAL OF EQUAL PROTECTION OF THE LAWS, DENIAL OF DUE PROCESS, CONSTRUCTIVE TRUST, AND FOR INJUNCTIVE RELIEF." Plaintiff alleged that his recreational vehicle park was a master-metered park with separate submeters for each unit pursuant to section 739.5 and thus entitled to baseline allocations under section 739. The basis of plaintiff's complaint was that Cal.Ed. was discriminating against him by charging him a commercial rate for electricity and by refusing to supply him under its DMS-II rate schedule reserved for mobile homes, and that such discrimination had resulted in a large amount of damages to him.

Cal.Ed. generally demurred to the complaint on the grounds that (1) jurisdiction over the controversy lay with the PUC, (2) plaintiff had not pursued his administrative remedies before the PUC, (3) the complaint failed to state a cause of action, and (4) it was prevented by law from modifying the DMS-II applicability criteria as demanded by plaintiff.

On December 9, 1986, two days before the hearing on the demurrer was to be held, plaintiff filed an amended complaint. This complaint was virtually the same as the initial complaint except that it contained an added cause of action for declaratory relief. In the declaratory relief count, plaintiff asked the court to determine whether or not (1) he is obligated to provide submetered electricity to his tenants and to charge them under a domestic rather than a commercial rate for this service; (2) a person using a recreational vehicle as his residence is a residential customer entitled to a baseline allocation; (3) he has the right to determine for himself if he comes within the residential and baseline provisions of sections 739 and 739.5; (4) sections 739 and 739.5 are unconstitutional because they constitute a taking without due process of law and a denial of equal protection of the laws; and, (5) the DMS-II rate schedule is "the embodiment of the implementation of mandatory duties imposed on the" PUC by section 739.5.

Cal.Ed. demurred generally to the amended complaint. Its demurrer was based on the same grounds as its previous demurrer to the original complaint, except that it also argued that the issues in the amended complaint were already pending in a proceeding before the PUC. The hearing court sustained Cal.Ed.'s demurrer without leave to amend.

In preparation for our decision on appeal, this court asked the parties to furnish us with information concerning the pendency of the issues raised in the amended complaint in actions before the PUC. ²

In case number 86-01-004 before the PUC a complaint was filed by owners of four recreational vehicle parks against Cal.Ed. on January 6, 1986, requesting, among other things, that the PUC order Cal.Ed. to supply electric service to complainants under the DMS-II mobile home park rate schedule. This case was consolidated with case number 86-02-002 in which similarly situated plaintiffs complained against the Pacific Gas and Electric Company. Plaintiffs in the PUC action are represented by Ernest E. Gilbert, who also represents plaintiff Schell in the matter before us on appeal. The Western Mobilehome Association requested and was granted leave to intervene in the PUC action, seeking an order that recreational vehicle parks be served under a separate domestic rate schedule designed specifically for such parks. Subsequently, plaintiffs requested and were granted leave to amend the prayer of their complaint in case number 86-01-004. In their amendment they requested that, should the PUC determine that the DMS-II rate schedule could not be applied to recreation vehicle parks, it declare the DMS-II schedule and sections 739 and 739.5 unconstitutional under equal protection and due process clauses of the state and federal constitutions. These cases have been briefed and heard and now await the decision of an administrative law judge.

Plaintiffs in case number 86-01-004, again represented by plaintiff's counsel herein, requested and were granted leave to intervene in Cal.Ed.'s latest general rate case before the PUC, case number 86-12-047. They asked for the following relief in the alternative: "a. Order that the tariff DMS-2 is the appropriate tariff upon which to serve Intervenor's master meter. [p] b. Order Applicant Southern California Edison Company to establish a uniform rate for Intervenor's master meter service at a level which will provide a sufficient differential to cover the reasonable average costs to master meter customers of providing submeter service, or [p] c. Make findings and orders that will inform Intervenors of the proper method of providing electric service to their tenants without potential civil or criminal liability for violation of tenants [sic] rights pursuant to the CALIFORNIA PUBLIC UTILITIES CODE, the MOBILEHOME RESIDENCY LAW [CC § 798 et seq.], and the RECREATIONAL VEHICLE PARK OCCUPANCY LAW [CC § 799.20 et seq.]."

In its decision on Cal.Ed.'s general rate case, decision number 87-12-066, the PUC refused to apply the DMS-II rate schedule to recreational vehicle parks. It also concluded that there was not sufficient evidence before it upon which to determine whether a new rate schedule should be designed and implemented for such parks. However, the PUC made the following order: "We will therefore direct Edison to conduct a study of the need for and feasibility of such tariff [rate] changes and present the results of that study in its next general rate case. To undertake this task, Edison will be required to provide standards by which it can objectively judge and realistically monitor the status of the RV tenant." A request for rehearing on decision number 87-12-066, filed by the intervenor, is now pending before the PUC.

Plaintiff raises the following contentions on appeal: (1) Respondent's general demurrer to the entire complaint should be overruled if any of the causes therein are sustainable; (2) the PUC does not have exclusive jurisdiction over all matters having any reference to regulation of public utilities, and any court of general jurisdiction may interpret any order of the Commission, consider a complaint for a tortious act, and award money damages; (3) where the PUC has ordered the formulation of a plan, and the utility has complied with the order, the trial court has jurisdiction to adjudicate any disputes between the utility and a third party arising under the plan, thereby giving effect to the plan in aid of the Commission; (4) where the state grants a monopoly to a public utility the utility may not use that power in an unconstitutional manner and any such use is "state action;" (5) exercise of discretion by the trial court is subject to review where adequate cause for such relief is shown.

DISCUSSION

Plaintiff contends before this court, as he did on the trial level, that the...