Pacific Gas & Electric Co. v. Superior Court

Opinion

PUGLIA, P. J.

Petitioner seeks writ review of the superior court’s order overruling its demurrer to the eminent domain complaint of real party in interest. The sole issue we must decide concerns the proper construction and application of certain pleading requirements contained in the Eminent Domain Law. (Code Civ. Proc., § 1230.010 et seq., hereafter the Law.) We conclude that the complaint is fatally flawed, and the demurrer should therefore have been sustained without leave to amend.

Real party in interest Hayfork Valley Public Utility District (District) is a public entity. District commenced the underlying eminent domain action for the purpose of acquiring certain power transmission facilities located within its boundaries and owned by petitioner Pacific Gas and Electric (P.G.&E.). P.G.&E. is a California corporation. The complaint incorporates by reference the resolution of public need and necessity adopted by District’s board of directors. The complaint and resolution reveal that the property sought to be condemned is presently devoted to public use, i.e., the distribution of electric power.

P.G.&E. demurred on the ground, among others, that District failed to comply with the requirements of the Law, specifically section 1240.610.

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That section provides: “Any person authorized to acquire property for a

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particular use by eminent domain may exercise the power of eminent domain to acquire for that use property appropriated to public use if the use for which the property is sought to be taken is a more necessary public use than the use to which the property is appropriated.

Where the property is sought to be acquired pursuant to this section, the complaint, and the resolution of necessity if one is required, shall refer specifically to this

section.” (Italics added.) P.G.&E.’s demurrer points up District’s failure to comply with the last sentence of section 1240.610, in that the complaint and incorporated resolution of necessity do not refer to the section.