Vila v. Tahoe Southside Water Utility

• Decision Date: 06 April 1965
• Citation: 233 Cal.App.2d 469,43 Cal.Rptr. 654
• Parties: , 58 P.U.R.3d 462 Joe VILA, Plaintiff and Appellant, v. TAHOE SOUTHSIDE WATER UTILITY and Frank Globin, Defendants and Respondents. Civ. 10992.
• Court: California Court of Appeals Court of Appeals

Page 654

43 Cal.Rptr. 654

233 Cal.App.2d 469, 58 P.U.R.3d 462

Joe VILA, Plaintiff and Appellant, v. TAHOE SOUTHSIDE WATER UTILITY and Frank Globin, Defendants and Respondents.

Civ. 10992.

District Court of Appeal, Third District, California.

April 6, 1965.

Beverly, Riley & Hamilton and Harold F. Bradford, Tahoe Valley, for appellant.

Wilke, Fleury & Sapunor, by Joe S. Gray, Sacramento, for respondent.

PIERCE, Presiding Justice.

The issue we decide on this appeal is whether the superior court has jurisdiction under Public Utilities Code section 2106 ¹ over an action brought by a prospective water user (1) for a mandatory injunction commanding a water company, which is a public utility, to provide water service in accordance with its unambiguous schedule of rates and rules and regulations of file with the California Public Utilities Commission (hereinafter the 'commission'), (2) for compensatory damages for refusal so to provide service, and (3) for exemplary damages because of the utility's alleged wilful refusal so to provide service.

Specifically, plaintiff, Joe Vila, owner of an office building within the area served by defendant Tahoe Southside Water Utility (hereinafter 'utility') ² complains that he sought for his building containing rental units a 'single service connection' from the utility's available water main which was refused. Demurrer to plaintiff's first amended complaint (upon the ground that the court was without jurisdiction) was sustained without leave to amend. Plaintiff has appealed from the judgment of dismissal which followed. We have concluded that the court does have jurisdiction over the action and reverse the judgment.

The first amended complaint in this action (hereinafter referred to as the 'complaint') alleges that plaintiff is the owner of premises described as Lot F of Lakeview Pines Subdivision, with improvements consisting of a building containing 'spaces designed and intended for use as medical offices and uses of a similar nature.' It is also alleged that these premises are located within the boundaries of defendant public utility, which has a 'tariff' on file with the commission and that the utility is required to supply water to plaintiff's premises and has a water main available to do so. Next alleged is that on November 1, 1963, plaintiff applied for water to be supplied to said premises through a 'single service connection,' which was the type of service the utility was required to provide under its 'tariff,' but that utility wrongfully refused to supply such service or any other service except a 'multiple service connection.' Plaintiff's premises, so the complaint alleges, have been deprived of any water supply since November 1, 1963, as a result of which the building has remained vacant.

The complaint is in three counts, one seeking an injunction, a second, compensatory damages, and a third, exemplary damages.

The 'tariff' referred to in the complaint is, as appears from the argument, a loosely used generic name for the 'schedule showing all rates, tolls, rentals, charges, and classifications collected or enforced, or to be collected or enforced, together with all rules, contracts, privileges, and facilities which in any manner affect or relate to rates, tolls, rentals, classifications or service.' These are required to be filed with the commission by section 489. It is sometimes also called a 'schedule of rates and rules and regulations.' (See In re Moorpark Farmers Water Co. (1926) 29 C.R.C. 132.) The 'tariff' has been lodged with this court. We take judicial notice of it. (Code Civ.Proc § 1875, subds. 2 and 3.) On June 20, 1950, by Decision No. 44320, it was ordered by the commission to be filed (to be effective July 15, 1950). It was so filed. The part pertinent to this inquiry is subdivision B of Rule and Regulation No. 18. It provides:

'B. Service to Multiple Units on Same Premises.

'Separate houses, buildings, living or business quarters on the same premises or on adjoining premises, under a single control or management, may be served water at the option of the applicant by either of the following methods:

'1. Through separate service connections to each or any thereof.

'2. Through a single, service connection to supply the entire premises, in which case only one minimum charge will be applied.

'The responsibility for payment of charges for all water furnished combined units, supplied through a single service connection, in accordance with these rules, must be assumed by the applicant.'

This action was brought under section 2106. That section 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. If the court finds that the act or omission was wilful, it may, in addition to the actual damages, award exemplary damages. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any corporation or person.

'No recovery as provided in this section shall in any manner affect a recovery by the State of the penalties provided in this part or the exercise by the commission of its power to punish for contempt.' ³

Briefly stated, the position of defendant utility before the trial court and here is this: that the California Constitution, article XII, section 23, set up the Railroad Commission (now called the Public Utilities Commission) to regulate and control public utilities, giving the Legislature plenary power to grant jurisdiction and powers thereto, which it has done (by sections of the code hereinafter to be mentioned) and with no power in any court except the Supreme Court to 'interfere with the commission in the performance of its official duties * * *.' (See section 1759 quoted below.)

There is no doubt of the accuracy of that statement--as a broad principle. In fact it has been held that 'the Legislature might have withheld from the courts of the state any power of reviewing the acts of the Commission.' (Clemmons v. Railroad Commission, 173 Cal. 254, 258, 159 P. 713, 714; Truck Owners etc., Inc. v. Superior Court, 194 Cal. 146, 152, 228 P. 19.)

Certain restraints on the courts have, as contended by the utility, been imposed by the Legislature. Section 1759 in pertinent part provides: 'No court in this State, except the Supreme Court 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 * * *.'

In Harmon v. Pacific Tel. & Tel. Co., 183 Cal.App.2d 1, 6 Cal.Rptr. 542, a case upon which defendant utility places principal reliance, the plaintiff brought an action in the superior court seeking declaratory relief regarding the disconnection of his telephone for nonpayment of a bill with 'bulk billing' charges. This 'bulk billing' had been expressly authorized by the commission. It was held the superior court had no jurisdiction; that the effect of any court order would be an attempt to superimpose the court's ruling upon that of the commission.

In a very recent case in our Supreme Court (People v. Superior Court (March 11, 1965) 62 A.C. 535, 42 Cal.Rptr. 849, 399 P.2d 385) the court, upon the petition of the commission, issued a writ prohibiting the superior court from hearing a declaratory relief action filed by a water utility to determine (1) the validity of overcharge refunds ordered by the commission, (2) whether these were assignable, and also (3) whether the State of California was entitled to unclaimed refunds. When the superior court action had been brought, proceedings were still pending before the commission wherein the issues sought to be litigated in court would be determined by it. The Supreme Court (per Chief Justice Traynor) held (on p. 538 of 62 A.C., p. 852 of 42 Cal.Rptr., on p. 388 of 399 P.2d): '* * * Under these circumstances section 1759 precludes the superior court from adjudicating at [the utility's] behest the very issues that will necessarily be presented to the commission in the continuing exercise of its jurisdiction in the refund proceedings. [Citations.]'

Both in Harmon, supra, and in People v. Superior Court, supra, the court found that to concede jurisdiction in the superior court would be an interference 'with the commission in the performance of its official duties' and would thus be squarely within the restrictions of section 1759. But the cue to decision in this case is in the following excerpt from the opinion in People v. Superior Court, supra (p. 538, 62 A.C., p. 851 of 42 Cal.Rptr., p. 387 of 399 P.2d): 'Had [the utility] complied with the commission's order to formulate a plan for making refunds to its customers and secured the commission's approval thereof, the appropriate trial courts would have jurisdiction to adjudicate any disputes between [the utility] and third parties arising under the plan. [Citations.] By giving proper effect to an approved refund plan, the court in such actions would be acting not in derogation but in aid of the commission's jurisdiction.' ⁴ (Emphasis supplied.)

Examining the facts of this case with that distinction in mind, we note: the utility here on order of the commission had filed its schedule or rates, rules and regulations which in form and content complied with said order. Under these the utility had undertaken to supply water '[t]hrough a single service connection' at the option of the water user upon his application therefor. There was no ambiguity in the schedule. The commission had accepted...