Guerra v. San Diego Gas & Electric CA4/1 (2015) · DecisionDepot
Guerra v. San Diego Gas & Electric CA4/1
California Court of Appeal Jan 20, 2015 No. D065265Unpublished
Filed 1/20/15 Guerra v. San Diego Gas & Electric CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MARC GUERRA, D065265
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2012-00103728-CU-BT-CTL) SAN DIEGO GAS & ELECTRIC COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy
B. Taylor, Judge. Reversed.
Blood Hurst & O'Reardon, Timothy G. Blood, Leslie E. Hurst; Law Office of John
W. Davis and John W. Davis for Plaintiff and Appellant.
Perez & Wilson, Michael J. Perez and Jeffrey A. Feasby for Defendant and
Respondent.
A tariff rule promulgated by the California Public Utilities Commission (PUC)
provides San Diego Gas & Electric Company (SDG&E) can gain access to SDG&E's
facilities located on a customer's private property and, when the customer has elected to
place SDG&E's facilities behind locked doors, the rule grants SDG&E the discretion to
select the locking mechanism that must be installed by the customer to enable SDG&E's
personnel to obtain access to those facilities. SDG&E selected the Schlage VTQP Quad
Key Section system (Keyways) as the device its customers must install. Keyways is a
challenged SDG&E's choice of Keyways and that, because Rule 16(A)(11)(a) granted
SDG&E the discretion to select the type of locking device its customers must use, an
injunction against use of Keyways would interfere with the PUC's exercise of its
regulatory authority (embodied in Rule 16(A)(11)) precluded pursuant to section 1759
under the test set forth in San Diego Gas & Electric Co. v. Superior Court (Covalt)
(1996) 13 Cal.4th 893 (Covalt). Guerra opposed the motion for judgment on the
pleadings, arguing the action did not seek to enjoin SDG&E from electing to use
Keyways, but instead sought injunctive relief requiring SDG&E to take reasonable steps
to exercise control over the keys it distributed for the device it selected as the locking
mechanism.
The trial court agreed with SDG&E that section 1759 deprived the court of
jurisdiction over a complaint challenging its choice, use and monitoring of Keyways,
reasoning that the monitoring failures alleged by Guerra were part of the choice made by
SDG&E (which choice was conferred on SDG&E by the PUC's tariff Rule 16(A)) to use
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Keyways. The court entered judgment on the pleadings in favor of SDG&E, and Guerra
timely appealed.
II
LEGAL FRAMEWORK
The Public Utilities Act vests in the PUC the "broad authority to 'supervise and
regulate every public utility in the State.' . . . " (Covalt, supra, 13 Cal.4th at p. 915.) This
broad authority authorizes the PUC to " 'do all things, whether specifically designated in
[the Public Utilities Act] or in addition thereto, which are necessary and convenient' in
the exercise of its jurisdiction over public utilities." (Ibid., italics omitted.) PUC action
is subject to judicial review, and section 1759 "prescribes a method of judicial review that
is narrow in both 'manner and scope.' " (Id. at p. 915.) Among other provisions, section
1759, subdivision (a), provides that "[n]o court of this state, except the Supreme Court
and the court of appeal, 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, as provided by law and the rules of
court."
Although section 1759 proscribes trial courts from reviewing commission rules
and decisions, the Legislature has provided a private right of action against utilities for
unlawful activities and conduct that may be pursued in the trial courts. Section 2106
provides for an action to recover for loss, damage, or injury "in any court of competent
jurisdiction" by any corporation or person against "[a]ny public utility which does, causes
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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 . . . ." The tension between
sections 1759 and 2106 has led numerous courts to recognize that "[i]t has never been the
rule in California that the commission has exclusive jurisdiction over any and all matters
having any reference to the regulation and supervision of public utilities." (Vila v. Tahoe
Southside Water Utility (1965) 233 Cal.App.2d 469, 477 [court has jurisdiction over
complaint alleging utility wrongfully refused to provide water service that sought
injunction to compel utility to provide water at prescribed rates and for damages]; accord,
Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1571 [PUC does not have
jurisdiction "over all matters that simply have some bearing upon regulated utilities"].)
Superior courts have concurrent jurisdiction to resolve a dispute between a private party
and a utility, and to award injunctive relief where appropriate (Truck Owners etc., Inc. v.
Superior Court (1924) 194 Cal. 146, 157-158; Vila, at p. 477) where the injunctive relief
would act "in aid of, rather than in derogation of, the PUC's jurisdiction." (Hartwell
Corp. v. Superior Court (2002) 27 Cal.4th 256, 275.)
Recognizing the tension between section 1759's limitations and section 2106's
right of action, our Supreme Court "has held section 2106 'must be construed as limited
to those situations in which an award of damages would not hinder or frustrate the
commission's declared supervisory and regulatory policies.' " (Koponen v. Pacific Gas &
Electric Co. (2008) 165 Cal.App.4th 345, 351.) In Covalt, the Supreme Court held
"[u]nder the Waters [v. Pacific Telephone Co. (1974) 12 Cal.3d 1] rule, . . . an action for
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damages against a public utility pursuant to section 2106 is barred by section 1759 not
only when an award of damages would directly contravene a specific order or decision of
the commission, i.e., when it would 'reverse, correct, or annul' that order or decision, but
also when an award of damages would simply have the effect of undermining a general
supervisory or regulatory policy of the commission, i.e., when it would 'hinder' or
'frustrate' or 'interfere with' or 'obstruct' that policy." (Covalt, supra, 13 Cal.4th at p. 918,
fn. omitted.) Covalt established a three-part test to determine whether an action is barred
by section 1759: "(1) whether the commission had the authority to adopt a regulatory
policy; (2) whether the commission had exercised that authority; and (3) whether the
superior court action would hinder or interfere with the commission's exercise of
regulatory authority." (Koponen, at p. 351.)
III
ANALYSIS
A. The Trial Court Erred in Dismissing the Complaint under Section 1759
Our analysis begins with the nature of the action brought and relief sought by
plaintiff because section 1759 "is not intended to, and does not, immunize or insulate a
public utility from any and all civil actions brought in superior court" (People ex rel.
Orloff v. Pacific Bell (2003) 31 Cal.4th 1132, 1144), but instead deprives a superior court
of jurisdiction to entertain an action only under the circumstances set forth in Covalt.
Here, plaintiff's action alleged SDG&E engaged in unfair and unlawful business practices
because it distributed keys to the locking mechanism selected by SDG&E without
instituting reasonable policies and procedures to track and safeguard the keys and access
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to Keyways even though there were reasonable alternatives that would provide secure
access to SDG&E for its legitimate business purposes. Guerra sought to enjoin SDG&E
from continuing to engage in the unfair and unlawful business practices.2
The first step under Covalt to whether an action is barred by section 1759 is
whether the PUC has the authority to adopt a regulatory policy governing service
extensions and access to property. SDG&E contends, and Guerra does not dispute, the
PUC has the authority to adopt rules governing service extensions, including rules that
require customers seeking service to enable SDG&E to have access to the customer's
property to maintain the facilities. The parties do not dispute that Rule 16, which has
"the force and effect of law" (Dollar-A-Day Rent-A-Car Systems, Inc. v. Pacific Tel. &
Tel. Co. (1972) 26 Cal.App.3d 454, 457), was within the ambit of the power conferred on
the PUC to review "the rules, practices, equipment, appliances, facilities, or service of
any public utility" and to "prescribe rules for the performance of any service or the
furnishing of any commodity of the character furnished or supplied by any public
utility . . . ." (§ 761.)
2 Although the complaint was amenable to the interpretation that Guerra also sought to compel SDG&E to select a different locking mechanism other than Keyways, Guerra (in his response to SDG&E's motion for judgment on the pleadings) specifically eschewed any claim that his action sought anything other than to compel SDG&E to institute reasonable policies and procedures to track and safeguard the keys and access to Keyways. More importantly, because the court declined Guerra's request for leave to amend, we must presume the court ruled that section 1759 barred Guerra's action even had he amended the action to clarify that it sought only to compel SDG&E to institute reasonable policies and procedures to track and safeguard the keys and access to Keyways.
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The remaining two questions under Covalt to decide whether the action is barred
by section 1759, which are somewhat intertwined, are whether the PUC exercised its
authority by actually adopting a policy governing the conduct of the utility that the
present action challenges as unlawful, and whether a superior court judgment granting
Guerra the requested relief would somehow hinder or interfere with the PUC's exercise of
that regulatory authority. We conclude both of those questions must be answered in the
negative.
The PUC has adopted a tariff rule to guarantee SDG&E has access to the owner's
premises, and implemented that guarantee in part by permitting SDG&E to designate
which type of locking device an applicant must install. However, the PUC imposed no
regulatory requirements or standards governing how SDG&E is to safeguard the keys it
distributes to operate the locks. SDG&E argues the fact Rule 16 is silent on how (or even
whether) a utility is required to safeguard the keys is irrelevant to the analysis of the
preclusive impact of section 1759 on Guerra's action, because SDG&E asserts cases like
Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal.App.4th 225 teach that the adoption
of rules touching on a subject matter must be read broadly as encompassing all related
subjects, and therefore a rule permitting SDG&E to select Keyways must be read broadly
to encompass all aspects of SDG&E's administration of Keyways. In Sarale, the plaintiff
landowners brought an action against the utility alleging the utility engaged in excessive
trimming of commercially productive walnut trees located under the utility's power lines,
and the trial court sustained the utility's demurrers without leave to amend and dismissed
the complaints under section 1759. (Sarale, at p. 230.) A divided court concluded that
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because the PUC had undertaken to study tree clearances around overhead power lines,
and had thereafter adopted statewide standards for minimum tree clearances while also
recognizing that " '[v]egetation management practices may make it advantageous to
obtain greater clearances than those listed' " (id. at p. 239), the second part of the Covalt
test had been satisfied because "it is quite apparent that the commission has exercised its
jurisdiction to regulate tree trimming around power lines." (Sarale, at p. 239.) The
Sarale majority concluded that, for purposes of evaluating whether a lawsuit seeking to
challenge tree trimming beyond the minimum clearances was precluded by section 1759,
the second part of the Covalt test had been satisfied, reasoning "it does not matter
whether we characterize the commission's actions broadly, as addressing 'the
management of vegetation near power lines,' or narrowly, as addressing 'minimum [tree]
trimming clearances.' What matters is that the commission has exercised its authority to
adopt a regulatory policy relating to tree trimming around power lines—regardless of
how that policy may be characterized." (Ibid.)
SDG&E argues that, like in Sarale, the PUC has exercised its authority to adopt a
regulatory policy regarding a utility's access to its facilities, and it does not matter
whether the policy is characterized narrowly (as addressing only SDG&E's selection of
the locking device) or more broadly (as encompassing the procedures for providing
access to those locking devices). However, even assuming we agree with the Sarale
court's analysis (but see Mata v. Pacific Gas & Electric Co. (2014) 224 Cal.App.4th 309,
319 [noting a "strong dissent" questioned how allowing the lawsuits to go forward would
interfere with PUC's regulatory authority since neither plaintiff challenged any conduct
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falling within the minimum clearances established by the PUC]), Sarale is of little
assistance here because it considered a policy that had been extensively visited and
revisited by the PUC over the decades (see Sarale, 189 Cal.App.4th at p. 242 [noting the
"record in this case indicates that clearances for vegetation management surrounding
power lines were revised by the commission in 1948, 1962, 1964, 1966, 1967, 1968,
1980, 1988, 1990, 1992, 1996, 1997, and 2005"], and hence represented the type of
" 'broad and continuing supervisory or regulatory program' " (Hartwell Corp. v. Superior
Court, supra, 27 Cal.4th at p. 276) Covalt determined would be protected from judicial
interference. In contrast, Rule 16 does not represent a "broad and continuing supervisory
or regulatory program" regulating a utility's ability to obtain access to premises, much
less concerning itself with the administrative details of how the utility should protect its
authorized access against being misused by unauthorized persons, but instead is largely
concerned with the terms and conditions under which a utility extends service to a home
or business. Rule 16 does include a subsection guaranteeing access to the customer's
premises to permit the utility to provide a range of services, but the extent of that policy
is the specification that the utility's access shall include (1) access for the utility's vehicles
and equipment, (2) freedom from unrestrained animals, (3) use of a utility-approved
locking device under certain circumstances, and (4) the right of access to the premises to
remove the utility's equipment after termination of service. (Rule 16, subds. (A)(11)(a)-
(d).)
We agree with Guerra that Rule 16's brief advertence to use of a utility-approved
locking device is not the type of broad and continuing supervisory or regulatory program
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with which the second part of the Covalt test is concerned. As Covalt explained, "[w]hen
the bar raised against a private damages action has been a ruling of the commission on a
single matter such as its approval of a tariff or a merger, the courts have tended to hold
that the action would not 'hinder' a 'policy' of the commission within the meaning of
Waters and hence may proceed. But when the relief sought would have interfered with a
broad and continuing supervisory or regulatory program of the commission, the courts
have found such a hindrance and barred the action under section 1759." (Covalt, supra,
13 Cal.4th at pp. 918-919, italics added.) Covalt illustrated the distinction by citing two
cases in which the second part of its test was not satisfied (Id. at pp. 919-920), and
contrasting those cases with a pair of appellate court decisions in which the second part
of its test was satisfied. (Id. at pp. 919-923.) Among the former cases was Cellular Plus,
Inc. v. Superior Court (1993) 14 Cal.App.4th 1224 (Cellular Plus), in which a
consumer's action alleging price fixing by two cellular telephone service companies was
permitted to proceed even though the PUC had granted both defendant companies
certificates of convenience and necessity authorizing them to operate and had approved
the rates they proposed to charge. The defendant companies' demurrer on the ground that
the commission has sole jurisdiction over rates charged was sustained, but the Cellular
Plus court concluded the action could proceed, because the PUC had determined only
that the proposed rates were reasonable, and the plaintiff's price-fixing claim did not
challenge the economic reasonableness of the prices but only whether the prices were in
fact artificially maintained. (Cellular Plus, at p. 1246.) The Cellular Plus court then
concluded the action would not hinder or frustrate the PUC's supervisory or regulatory
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policies, because "[t]he only apparent policy of the PUC that could be affected is its
regulation of rates charged by cellular telephone service providers. However, [plaintiff]
does not dispute that the PUC has jurisdiction over rates, nor does it seek any relief
requiring the PUC to change any rates it has approved." (Ibid.)
In contrast, Covalt noted cases like Brian T. v. Pacific Bell (1989) 210 Cal.App.3d
894, in which the superior court action would have interfered with a broad and continuing
policy of the commission and hence was barred by section 1759. In Brian T., the PUC
had addressed a problem arising because telephone utilities offered "information access
services," which potentially could have been used to disseminate sexually explicit
material to minors, and the PUC considered how to restrict access to adults only. The
Federal Communications Commission (FCC) had considered three methods of achieving
such a restriction (blocking devices on the customer's premises; blocking systems at the
utility's central station; and "customer access codes" issued on request to adult
subscribers) and ultimately adopted the third of these methods. However, the PUC
investigated and adopted an interim decision approving the central-station method of
blocking sexually explicit messages, and (after exhaustive hearings) reaffirmed its
decision in favor of central-station blocking. (Covalt, supra, 13 Cal.4th at p. 920.) In a
lawsuit by a minor's parents, who alleged the minor had listened to sexually explicit
messages and then engaged in unlawful sexual contacts with another minor, the parents
sought damages and a preliminary injunction to compel the phone company to make
available to its customers screening or blocking devices. The Brian T. court upheld the
trial court's order dismissing the action for lack of jurisdiction, reasoning the requested
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injunctive relief would in effect call for PUC action to modify its previous decisions on
how to restrict access, and such interference with a PUC policy was prohibited by section
1759. (See Brian T., at pp. 900-901.)
Here, as in Cellular Plus, the bar raised against Guerra's action is a PUC approval
of a single tariff rule, which is limited to allowing the utility to select the locking device
that must be installed, not an explicit policy adopted after exhaustive studies as in
Brian T. Here, as in Cellular Plus but unlike Brian T., the relief sought by Guerra would
neither require the PUC to change the tariff rule nor preclude SDG&E from selecting the
locking device, but instead would only require that SDG&E adopt measures to guard
against unauthorized use of the keys to that locking device. In Cundiff v. GTE California
Inc. (2002) 101 Cal.App.4th 1395, the court applied Covalt to an analogous set of
circumstances and found the action was not barred. In Cundiff, the plaintiff sued a phone
company alleging the monthly bills sent to customers were false and misleading because
the bills listed as "equipment rental" a monthly charge for renting the phone unit. (Id. at
p. 1402.) The trial court sustained a demurrer without leave to amend on the ground that
section 1759 gave the PUC exclusive jurisdiction. The Cundiff court reversed and held
the suit was not barred by section 1759, reasoning that even if "the amount of money
defendants charged each month as rent for telephones was approved by the commission,
we do not perceive the thrust of plaintiffs' complaint to be a challenge to that amount.
Nor do we perceive this as a suit challenging the commission's decision to allow
defendants to rent telephones to their customers. Rather, plaintiffs are challenging the
manner in which defendants billed them for rental of telephones, specifically, the alleged
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lack of information given to plaintiffs about the rental charge made each month by
defendants." (Id. at p. 1406.) Similarly, Guerra is not challenging the PUC's decision to
allow SDG&E to select which locking device to install, but is instead challenging only
the manner in which SDG&E chooses to administer the system, and the manner in which
SDG&E chooses to safeguard the keys.
SDG&E argues the relief sought by Guerra would have multiple collateral impacts
hindering or interfering with the PUC's exercise of authority, within the meaning Covalt's
third criteria, because it would create a subcategory of rate-payers entitled to enhanced
protections (e.g. persons living in residences where SDG&E facilities share a keyed
entrance to common areas) without defining a uniform standard of care applicable
throughout the state, and the costs of the enhanced security measures could be borne by
all ratepayers rather than only those ratepayers benefitted by the enhanced security.
Because only the PUC is empowered to establish rules and fix rates for SDG&E
customers, the relief sought would hinder or interfere with the PUC's exercise of
authority. However, SDG&E cites no authority suggesting Covalt's tripartite test is
disjunctive, and therefore the collateral impacts have no relevance where (as here) the
second part of Covalt is not satisfied. Moreover, SDG&E's claim a ruling in Guerra's
favor would impact rates, thereby transgressing on the PUC's exclusive authority over
rates, appears contrary to established law. In an analogous context, a court rejected an
argument that a court could not invalidate the early termination fees (ETF's) charged by
cell phone providers because rate regulation of those providers was preempted, stating
" '[a] judicial act constitutes rate regulation only if its principal purpose and direct effect
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are to control rates' " (Cellphone Termination Fee Cases (2011) 193 Cal.App.4th 298,
320), and concluding "[i]nvalidation of the ETF's under California's consumer protection
laws will have only an indirect and incidental effect on Sprint's rates and, therefore, is not
preempted . . . ." (Id. at p. 321.) We conclude the limited relief sought by Guerra is not
barred by section 1759 as construed in Covalt, and therefore the trial court erred when it
dismissed Guerra's complaint under section 1759.
B. SDG&E's Alternative Arguments to Support the Judgment are Unpersuasive
In the proceedings below, SDG&E also asserted the court should grant judgment
on the pleadings based on judicial abstention and because any injury suffered by Guerra
resulted from intervening criminal conduct. SDG&E resurrects those arguments on
appeal.3
The Abstention Claim
SDG&E's abstention argument asserts that, when considering relief under the
UCL, courts have the discretion to abstain from employing the equitable remedies
available under the UCL, namely injunctions and restitution, and "[w]here a UCL action
would drag a court of equity into an area of complex economic policy, equitable
abstention is appropriate. In such cases, it is primarily a legislative and not a judicial
3 SDG&E also argues, apparently for the first time on appeal, that the motion for judgment on the pleadings was properly granted because the complaint failed to state a claim for relief under the UCL. We ordinarily decline to consider arguments not raised at trial (see generally Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1129), and we decline to do so here because the failure to raise the argument below at a minimum deprived Guerra of the opportunity to propose amendments that may have cured any purported defect.
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function to determine the best economic policy." (Desert Healthcare Dist. v. PacifiCare
FHP, Inc. (2001) 94 Cal.App.4th 781, 795.) SDG&E cites Alvarado v. Selma
Convalescent Hospital (2007) 153 Cal.App.4th 1292 in support of its argument in favor
of abstention. Alvarado involved a class action lawsuit, brought under the UCL, seeking
restitution and injunctive relief to require owners and operators of skilled nursing and
intermediate care facilities to comply with certain minimum nursing hour requirements,
and the trial court sustained a demurrer to the complaint based on abstention. The
appellate court affirmed because "[a]djudicating this class action controversy would
require the trial court to assume general regulatory powers over the health care industry
through the guise of enforcing the UCL, a task for which the courts are not well-
equipped." (Id. at pp. 1303-1304.) SDG&E asserts that, because Guerra's action would
require a court "to assume the function of the PUC and/or would interfere with the PUC's
regulatory authority" by imposing security requirements for guarding access to Keyways,
"[j]udicial abstention is appropriate [because] granting the requested relief would require
a trial court to assume the functions of an administrative agency, or to interfere with the
functions of an administrative agency." (Id. at p. 1298.)
SDG&E's argument appears to be a repackaging of its argument under Covalt and
our reasons for rejecting SDG&E's Covalt argument apply with equal force to its
abstention claim. Moreover, the decision in Alvarado applied abstention to a milieu
bearing little resemblance to the present case. In Alvarado, the lawsuit sought an
injunction requiring the owners and operators of nursing facilities to comply with
statutory requirements for nursing hours. However, the statute contemplated the
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Department of Health Care Services would be charged with adopting regulations setting
forth the minimum number of nursing hours per patient required at these facilities
(Alvarado v. Selma Convalescent Hospital, supra, 153 Cal.App.4th at p. 1303), as well as
determining compliance with those regulations by considering which professionals' time
would be counted and whether exceptions were applicable. (Id. at pp. 1304-1306.) The
Alvarado court, noting "[t]he DHCS has the power, expertise and statutory mandate to
regulate and enforce section 1275.6" (id. at p. 1306), concluded the trial court did not
abuse its discretion by applying the abstention doctrine because it involved "a task better
accomplished by an administrative agency than by trial courts." (Ibid.)
The present case does not involve enforcing compliance with a complex statutory
scheme, and does not implicate a legislative scheme that contemplated an administrative
agency would promulgate implementing regulations and undertake enforcement tasks
peculiarly suited to the expertise of the administrative agency. Instead, Guerra's UCL
claim alleged SDG&E violated the requirement, set forth in section 451, that SDG&E
"furnish and maintain such adequate . . . and reasonable service, instrumentalities,
equipment, and facilities . . . as are necessary to promote the safety . . . of its
patrons . . . ." The doctrine of judicial abstention does not prevent courts from
adjudicating a claim under the UCL evaluating whether a defendant's conduct violates a
statutory command, and to issue injunctive relief requiring compliance with those
obligations (see Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th
471, 500 ["courts routinely are called upon to decide whether an alleged business practice
19
is made unlawful by an underlying statute"]), even though an administrative agency could
have parallel jurisdiction over the dispute. (Id. at pp. 500-502.)
The Intervening Criminal Conduct Claim
SDG&E also argues the claim raised in Guerra's complaint is barred because of
intervening criminal conduct, and therefore the motion for judgment on the pleadings was
properly granted. The harm suffered by Guerra was the direct result of third persons
committing crimes. " 'An intervening force is one which actively operates in producing
harm to another after the actor's negligent act or omission has been committed.'
[Citation.] Whether it prevents an actor's antecedent negligence from being a legal cause
of harm to another is determined by other rules [citation], chiefly those governing the
related concept of superseding cause. [¶] 'A superseding cause is an act of a third person
or other force which by its intervention prevents the actor from being liable for harm to
another which his antecedent negligence is a substantial factor in bringing about.'
[Citation.] If the cause is superseding, it relieves the actor from liability whether or not
that person's negligence was a substantial factor in bringing about the harm." (Brewer v.
Teano (1995) 40 Cal.App.4th 1024, 1030-1031.)
SDG&E's reliance on this doctrine is unpersuasive, for two reasons. First, "[i]t is
. . . clear that intervening criminal conduct cannot absolve the defendant of liability
where as here the plaintiff alleges that defendants maintained the property in such a way
so as to increase the risk of criminal activity." (Peterson v. San Francisco Community
College Dist. (1984) 36 Cal.3d 799, 812; accord, Kwaitkowski v. Superior Trading Co.
cause where alleged negligence was inadequate lock, noting "a properly functioning front
door lock is a vital first line of defense"].) Guerra's claim here is that SDG&E's failure to
safeguard the keys was the precise conduct increasing the risk of criminal conduct.
Second, SDG&E cites no authority suggesting the intervening criminal conduct doctrine
can be applied at the pleading stage, and analogous law appears to be to the contrary.
(See Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 18-19 [third party conduct may be
viewed as a superseding cause "when it is so highly extraordinary as to be unforeseeable"
but "foreseeability is a question for the jury unless undisputed facts leave no room for a
reasonable difference of opinion. [Citations.] Thus, the issue of superseding cause is
generally one of fact."].)
C. Conclusion
We conclude the trial court erred in granting SDG&E's motion for judgment on
the pleadings without leave to amend.
DISPOSITION
The judgment is reversed. Guerra is entitled to costs on appeal.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court erred in dismissing the action for lack of jurisdiction under Public Utilities Code section 1759, as the plaintiff's challenge to the utility's key-management practices does not interfere with a broad and continuing regulatory policy of the Public Utilities Commission.
Issues
Whether the trial court lacked jurisdiction under Public Utilities Code section 1759 to hear a UCL claim regarding a utility's key-management practices.
Whether the utility's tariff rule regarding locking devices constitutes a broad regulatory policy that precludes judicial review of the utility's security procedures.
Disposition. Reversed.
Quotations verified verbatim against the opinion
“Guerra is not challenging the PUC's decision to allow SDG&E to select which locking device to install, but is instead challenging only the manner in which SDG&E chooses to administer the system”