Davis v. Southern Cal. Edison Co. CA3/7 , 186 Cal. Rptr. 3d 587 ( 2015 )

Filed 4/7/15 Davis v. Southern Cal. Edison Co. CA3/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DAVID DAVIS, B256737
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. EC061441)
v.
SOUTHERN CALIFORNIA EDISON
COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Donna
Fields Goldstein, Judge. Affirmed.
David Davis, in pro. per., for Plaintiff and Appellant.
Southern California Edison Company, Leon Bass, Jr., and Julia A. Mosel for
Defendant and Respondent.
_______________________
INTRODUCTION
This action arises from plaintiff David Davis’s applications to Southern California
Edison Company (SCE) to interconnect solar generating systems on property he owned to
the SCE electricity distribution system (electricity grid) to generate electricity for use on
those properties and to sell to SCE. Davis contends that SCE, in processing his
applications, violated SCE’s Tariff Rule 21 (Rule 21), Tariff Rule 16 (Rule 16), the
California Renewable Energy Small Tariff (CREST) program, and the Net Energy
Metering (NEM) program.1
SCE filed a demurrer on the ground that the California Public Utilities
Commission (PUC) had exclusive jurisdiction to resolve the dispute and, therefore, the
superior court lacked jurisdiction to hear Davis’s claims. At issue on appeal is the
potential conflict between Public Utilities Code section 1759,2 which limits jurisdiction
to review an order of the PUC to the Court of Appeal and the Supreme Court, and
section 2106, which grants jurisdiction to the superior court to hear actions for damages
against a public utility that violates California law. The trial court sustained SCE’s
demurrer without leave to amend, entered judgment against Davis, and dismissed the case
without prejudice.3
1 All three tariffs have been published and approved by the California Public
Utilities Commission and, therefore, have “the force . . . of a statute.” (Dyke Water Co. v.
Public Utilities Com. (1961) 56 Cal. 2d 105, 123; accord, Los Angeles Cellular Telephone
Co. v. Superior Court (1998) 65 Cal. App. 4th 1013, 1018.)
2 All further statutory references are to the Public Utilities Code unless otherwise
indicated.
3 We find that the court’s dismissal without prejudice is an appealable order because
the dismissal was by the court without any agreement by the parties as to future litigation
or waiver of the statute of limitations. (See Kurwa v. Kislinger (2013) 57 Cal. 4th 1097,
1106 [distinguishing judgments where the parties agree to toll the statute of limitations,
holding, “[i]t is that assurance—the agreement keeping the dismissed count legally
alive—that prevents the judgment disposing of the other causes of action from achieving
2
We conclude that the trial court correctly held that the PUC had exclusive
jurisdiction over Davis’s claims under our Supreme Court’s holding in San Diego Gas &
Electric Co. v. Superior Court (1996) 13 Cal. 4th 893, 917-918 (Covalt)4 because
adjudication of Davis’s claims would “‘hinder or frustrate the commission’s declared
supervisory and regulatory policies’” with respect to interconnection of solar generating
facilities under Rule 21, Rule 16 and the CREST and NEM programs.
While Davis’s remedies before the PUC may be more limited than those available
in the trial court, to the extent Davis has viable damage claims following the PUC’s
adjudication of his administrative complaints currently pending before the PUC, those
claims will only become ripe for filing in the trial court once the PUC reaches a final
decision. (See Schell v. Southern Cal. Edison Co. (1988) 204 Cal. App. 3d 1039, 1047.)
We affirm.
finality”]; Abatti v. Imperial Irrigation Dist. (2012) 205 Cal. App. 4th 650, 666 [dismissal
of claims under California Environmental Quality Act (CEQA) appealable where non-
CEQA claims were dismissed without prejudice absent any agreement of parties as to
future litigation].) In this case, the trial court dismissed the case without any agreement
by the parties as to future litigation or a waiver of the statute of limitations. While it
appears the court envisioned a potential future lawsuit by Davis if he prevails before the
PUC, this possibility does not render the judgment non-appealable.
4 Later courts have referred to the decision in San Diego Gas & Electric as the
“Covalt” case because Covalt was a real party in interest in the case. (See, e.g., People ex
rel. Orloff v. Pacific Bell (2003) 31 Cal. 4th 1132, 1145; Hartwell Corp. v. Superior Court
(2002) 27 Cal. 4th 256, 264 (Hartwell).)
3
FACTUAL AND PROCEDURAL BACKGROUND5
A. SCE’s Tariffs Governing Solar Generating Facilities6
1. SCE’s Tariff Rule 21
All residential solar generating facilities seeking to interconnect to SCE’s
electricity grid must comply with Rule 21.7 Rule 21 governs all aspects of
interconnection, including the interconnection application submission process, the
process for reviewing interconnection applications, the assignment of a generator’s
position in the interconnection queue, the engineering review details, the cost
responsibilities of the generators and SCE, and the design and operation requirements for
the generating facility. Rule 21 applies both to solar generators that intend to sell power
5 On review of a judgment of dismissal after sustaining of a demurrer, “[w]e assume
the truth of all facts properly pled and the truth of facts that may be implied or inferred
from these allegations.” (White v. State of California (2001) 88 Cal. App. 4th 298, 304;
accord, Zelig v. County of Los Angeles (2002) 27 Cal. 4th 1112, 1126.) The facts in the
factual background are therefore taken from Davis’s verified complaint, as well as
documents in the record on appeal.
6 “‘“Tariffs” refer collectively to the sheets that a utility must file, maintain, and
publish as directed by the [PUC], and that set forth the terms and conditions of the
utility’s services to its customers . . . .’ [Citations.]” (Clean Energy Fuels Corp. v.
Public Utilities Com. (2014) 227 Cal. App. 4th 641, 644, fn. 1.)
Tariffs and tariff rules are authorized pursuant to section 489, subdivision (a),
which provides: “The commission shall, by rule or order, require every public utility
other than a common carrier to file with the commission within the time and in the form
as the commission designates, and to print and keep open to public inspection, schedules
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 . . . .”
7 Rule 21 was amended effective September 20, 2012, at which time Davis’s solar
applications to SCE were pending. We note any changes to relevant sections of Rule 21
below. Also, where a section has been moved or renumbered, we will include the new
section number in brackets.
4
to SCE under the CREST program and to solar generators that intend to use their
generation to offset their own electricity usage under the NEM program.
Rule 21 provides deadlines for the interconnection approval process. A threshold
determination must be made as to whether the project is eligible for the “fast track.”
Under section E.2.b.i, Rule 21 provides that “[n]on-Exporting and Net Energy Metered
[NEM] Generating Facilities are eligible for Fast Track evaluation regardless of the Gross
Nameplate Rating of the proposed Generating Facility.” For an “Exporting Generating
Facility,” fast track is available under certain conditions set forth in section E.2.b.i.
Section F.1.b provides for a “Fast Track Review” for projects “that do not require
Detailed Study.”
Rule 21 provides deadlines for (1) determination of whether an application is
complete, (2) completion of an initial engineering review once the application is
complete, and (3) completion of SCE’s review of the application. We discuss these
deadlines in more detail below.
Rule 21 provides in section K.1 for resolution of disputes: “In addition to the
informal procedures for timeline-related disputes set out in Section F.1.d, the following
procedures will apply for disputes arising from this Rule: [¶] . . . [¶] The Commission
shall have initial jurisdiction to interpret, add, delete or modify any provision of this Rule
or of any agreements entered into between Distribution Provider and Applicant or
Producer to implement this tariff . . . and to resolve disputes regarding Distribution
Provider’s [SCE’s] performance of its obligations under Commission-jurisdictional
tariffs, the applicable agreements, and requirements related to the interconnection of
Applicant’s or Producer’s Generating Facility or Interconnection Facilities pursuant to
this Rule.” Section K.2.c provides procedures for parties to resolve disputes, including
through mediation, and further, “[a]t any time, either Party may file a formal complaint
before the Commission. . . .”
5
2. The CREST Solar Generation Program
Section 399.20, subdivision (a), declares the “intent of the Legislature to
encourage electrical generation from eligible renewable energy resources.” SCE filed the
CREST program with the PUC pursuant to subdivision (c), which requires utilities,
including SCE, to file with the PUC a standard tariff providing for the purchase of
renewable energy from electric generating facilities. The PUC has approved the CREST
program.
To be eligible for CREST, an SCE customer must own and operate an eligible
solar generating facility that “[h]as an effective capacity of not more than 1.5 MW
[megawatts] and is located on the premises owned or under the control of the customer.”
Under section 399.20, subdivision (f), SCE was required to make CREST available to
solar generating facilities “on a first-come-first-served basis,” assigning each generating
facility a queue position based on the date it entered into a power purchase agreement
with SCE. SCE was required to keep CREST open for eligible generators until SCE met
its proportionate share of a statewide cap of 750 megawatts. Effective July 24, 2013,
SCE met its obligation to purchase the required amount of eligible generation under
CREST, and the CREST program closed to new customers.
3. The NEM Solar Generation Program
SCE established the NEM program pursuant to section 2827. NEM allows
eligible customers who install renewable generation at their homes or businesses to offset
their consumption of electricity by the amount of electricity they generate. (§ 2827,
subd. (b)(6).) Section 2827 also provides for “‘[n]et surplus electricity compensation’” to
a customer where the customer produces more power than it consumes over the course of
a year. (Id., subd. (b)(9).) Rule 21 provides for expedited procedures for NEM
generators seeking to interconnect to SCE’s electricity grid.
6
4. California Solar Initiative Program (CSI)
The PUC oversees the CSI program, which provides cash incentives to utility
customers who install solar generating systems for their homes and other properties. In
order to be eligible for CSI incentives, the solar generating system needs to be “sized” so
that the electricity generated by the system offsets part or all of the customer’s electrical
needs.
B. Davis’s Applications To Interconnect His Solar Generating Systems
Davis alleges he is a residential customer of SCE. SCE is a public utility subject
to regulation by the PUC (Cal. Const., art. XII, § 1; § 201 et seq.). In 2012 Davis
proposed to install solar generating systems on residential properties he owned in San
Bernardino County. Davis submitted 20 applications, including for rental properties at
65911 29 Palms Highway (8 units), 60215 and 60219 Alta Loma (4 units), 6804 Park
Boulevard (5 units), 6807 Park Boulevard, and 6815 Park Boulevard. Davis also
proposed to increase the size of the solar generator at his home in Joshua Tree from 6 to
18 kilowatts (kW).
Davis planned to interconnect the solar systems on his properties with SCE’s
electricity grid and to sell his surplus electricity to SCE in accordance with “any of the
several tariffs” available for the sale of excess electricity. As we discuss below, Davis
initially submitted his applications under the CREST tariff program. When those
applications were not approved, he submitted similar applications under the NEM
program.
C. Davis’s Complaint for Damages
Davis filed this action on November 20, 2013. All of the causes of action arise out
of Davis’s attempt to interconnect solar generating systems on his properties to the SCE
electricity grid. In his complaint, Davis alleges that SCE breached its duties owed to him
pursuant to Rule 21, Rule 16, and CREST. Davis contends the court has jurisdiction to
enforce these orders pursuant to section 2106, which provides that a public utility is liable
7
for damages resulting from its unlawful acts or omissions under state law and that a
person may bring “[a]n action to recover for such loss, damage, or injury . . . in any court
of competent jurisdiction . . . .”
1. First Cause of Action for Deceit Relating to NEM Program
The complaint’s first cause of action alleges deceit in violation of Civil Code
section 1710.2. Davis alleges that on April 20, 2012 the NEM Manager of SCE, Melissa
Patrick, represented to him that “SCE has a procedure for reviewing all NEM residential
applications for appropriate sizing,” but this statement was not true. Davis alleges he
relied on this representation by building solar generators that “can not be used.”
As we discuss below, while this allegation is phrased as “deceit,” it tracks the
allegations in the second complaint he filed with the PUC in November 2013 in which he
alleges that some of his solar projects were not approved because they were too large and,
as to others, he was required to reduce the size to obtain CSI incentive funding. Davis
alleges he was damaged by the loss of use of some solar generators and the delay in
approval of other generators.
2. Second Through Fourth Causes of Action Alleging Violation of NEM
Program Deadlines
Davis’s second through fourth causes of action allege SCE’s failure to comply
with Rule 21’s deadlines for processing NEM applications. Davis alleges that by the
time his solar applications were approved, the solar systems had been in place and ready
to turn on for over a year. He also alleges that at the time of filing the complaint, some of
his solar applications had not been approved.
a. Davis’s NEM Applications
Davis initially applied to connect his solar generating systems under the CREST
program, which we discuss below with respect to the sixth through eighth causes of
action. When those applications were not approved, Davis proceeded to apply for
8
approval under the NEM program. From April 4, 2012 to September 25, 2012 Davis
submitted 20 applications to install solar systems for his home and rental properties under
the NEM program. Davis submitted two sets of applications. One group of applications
proposed to install for each house or unit 30 solar panels and one 5 kW inverter. The 5
kW units were proposed for the following properties: 6804 Park Boulevard (five units),
6807 Park Boulevard, 6815 Park Boulevard, and 60215 and 60219 Alta Loma (four
units).
Davis also submitted applications for 10 kW projects for the eight rental units at
his 65911 29 Palms Highway property. These projects included two 5 kW inverters and
associated solar panels. Davis also proposed to increase the size of the solar generator on
his home from 6 kW to 18 kW.
Between July 18, 2012 and October 12, 2012, SCE approved and interconnected
all the proposed 5 kW systems. Davis alleges that “SCE expeditiously interconnected
each project within 30 days (usually much less) of me sending the Job Card.”8
On September 5 and 6, 2012 SCE granted Davis permission to operate 10 kW
systems for units 5 and 6 at the 29 Palms property. After receiving approval for units 5
and 6, Davis built 10 kW systems for units 3 and 4, and SCE staff told Davis the
applications for the two new systems “were fine.” Based upon SCE’s approval for units
5 and 6 and the representation that the applications for units 3 and 4 “were fine,” Davis
built the remaining 10 kW systems for units 1, 2, 7, and 8 starting on October 15, 2012.
While the applications for the 10 kW systems were pending, Davis filed two
formal complaints with the PUC against SCE regarding SCE’s interpretation of the NEM
tariff, which we discuss in more detail below. Davis alleges that in September 2012,
when the PUC ordered SCE to answer Davis’s first complaint, “SCE stopped processing
my NEM applications in the expeditious way that they had been previously [doing].” In
8 The “Job Card” refers to the “Building and Safety Final Electrical Inspection Job
Card” issued by the local building and safety department, which is the final document the
applicant submits on a NEM application before the application is deemed complete.
9
November 2012 and January 2013 SCE retroactively deemed some applications
incomplete that it had previously deemed complete.
Davis also alleges that when he submitted a corrected application for the solar
system for his home in November 2012, he did not receive a response from SCE as to
whether his corrected application was complete for 56 business days, until February 25,
2013. Davis alleges that this violated SCE’s obligation under Rule 21 to inform an
applicant whether its application is complete within 20 working days.
b. Davis’s Allegations of Non-compliance with Deadlines
The second cause of action alleges that SCE failed to comply with the requirement
in Rule 21, section C.1.b.(1) [E.5.a] that SCE review interconnection applications for
completeness and provide notice to the applicant within 10 working days of receipt
whether the application is complete. Davis alleges that SCE failed to inform him when
his applications were complete, only letting him know when they were incomplete.
Later, SCE retroactively deemed many of his applications for solar generation to be
incomplete.
The third cause of action alleges that SCE failed to comply with the requirement
that it complete the initial engineering review of each application within 20 business days
from when the application is deemed complete, as required by Rule 21, section C.1.c
[F.2.a].9 Davis alleges that because SCE did not complete engineering studies of his
solar generating systems, he built them without knowing what upgrades would be
necessary to interconnect to the SCE electricity grid, delaying his operation of those
units.
The fourth cause of action alleges that SCE failed to comply with the 30-day
deadline to complete the processing of NEM interconnection applications, as required by
Rule 21, section C.2.d [D.13.b], or notify Davis “‘of the reason for the inability to
9 Effective September 20, 2012, this time frame was reduced to 15 business days.
10
process the Interconnection Request and the expected completion date.’” Section D.13.b
provides that qualifying generating facilities under the NEM program “shall normally be
processed not later than thirty (30) Business Days following Distribution Provider’s
receipt” of various documents, including “evidence of Applicant’s final electric
inspection clearance from the Governmental Authority having jurisdiction over the
Generating Facility.” (Italics added.) This section provides many exceptions to the 30-
day deadline and provides that certain applicants “are advised to submit their
Interconnection Request at least six (6) months in advance of their planned Commercial
Operation Date.”
Davis alleges that SCE delayed approval of some of his solar system applications
and, because it did not inform him of the delay, Davis proceeded to build the units. Davis
alleges that he was harmed by having to pay for electricity used prior to being allowed to
turn on the solar systems.
3. Fifth and Ninth Causes of Action for Overcharges on NEM Upgrades
The fifth cause of action alleges that SCE failed to pay for distribution upgrades
for NEM interconnections, as required by Rule 21, Table C.2 [E.4.f]. According to
Davis, Rule 21 requires that SCE pay for “distribution” upgrades and the applicant pay
for “interconnection” upgrades for NEM interconnections. The property at 65911 29
Palms Highway had eight units each with an electric meter. SCE upgraded the
“distribution” conductor for the building and billed Davis $4,071.25 for the upgrade,
even though the upgrade was SCE’s responsibility under Rule 21 as a “distribution”
upgrade.
According to Davis, SCE later acknowledged that it had an obligation to perform a
portion of the distribution system upgrades. On July 30, 2013 SCE performed
distribution upgrades at its own expense, including “replacement of the distribution
conductor from the transformer to the point of coupling where it connects to each of the
four distribution conductors each of which serves the two customer meters of each
duplex.” However, the SCE engineer in charge of the project upgraded a distribution
11
conductor to size 1/0 although he knew that a size 4/0 was required to operate the solar
generating systems on the property. Davis alleges that SCE then improperly billed Davis
for removing the 1/0 conductor and installing the necessary 4/0 conductor.
The ninth cause of action, similar to the fifth cause of action, alleges that SCE
inconsistently applied the definitions of “Interconnection Facility” and “Distribution
Service,” in violation of Rule 21, section H and the Public Utilities Code.
4. Sixth Cause of Action for Overbilling on CREST Applications
In January 2012 Davis submitted to SCE 12 interconnection applications pursuant
to Rule 21 seeking to interconnect solar generating systems at his home and rental units
to SCE’s electricity grid. The applications proposed to sell the excess electricity to SCE
and made clear that they were not submitted under the NEM program. However, Davis’s
applications stated he was interested in more than one possible tariff under which to sell
excess power. SCE deemed Davis’s applications incomplete because they failed to
specify a single tariff. In response, Davis selected the CREST program. Davis alleges
that SCE did not take action on his 12 CREST applications from January to June 2012.
Davis alleges in the sixth cause of action that SCE charged him excessive fees for
approval of his solar generating systems under the CREST program. Specifically Davis
alleges that SCE should have reduced the fees for his “atypical” application. Under
Rule 21, section C.1.b(5) [E.3.a(iv)], an “applicant may propose and SCE may agree to
reduced costs for reviewing atypical applications, such as Applications submitted for
multiple generators, multiple sites and otherwise as conditions warrant.” SCE
acknowledged to Davis in writing that his applications were “atypical” because they were
for smaller 18 kW residential applications as compared to “typical” non-NEM
applications for large or industrial projects ranging from 250 to 3000 kWs. However,
SCE denied Davis’s request to reduce the costs SCE charged him for his applications.
Davis also alleges that SCE overcharged him by requiring that one study be
prepared for each solar generating system instead of performing one study for each of his
multi-unit properties. Davis alleges that at each property, every unit had an individual
12
customer electric meter, but each property was served by a “single distribution conductor
and a single SCE transformer,” so the studies would be identical for each solar generating
system on the property. SCE rejected Davis’s proposals and assessed fees of $61,400 per
electric meter for a total of $491,200 for the eight units at 65911 29 Palms Highway and
$245,600 for the four units on Alta Loma.
5. Seventh and Eighth Causes of Action for Unlawful Approval of Coronus
Energy Corporation’s CREST Application
Davis alleges that SCE offered preferential treatment to a commercial solar power
generator, Coronus Energy Corporation (Coronus), which resulted in SCE’s denial of
Davis’s CREST applications.10
a. Coronus’s Applications
At the same time Davis’s CREST applications were pending, SCE was negotiating
with Coronus on its applications for commercial solar farms. The farms were “just a few
hundred yards away from each of [Davis’s] premises,” and were served by the same
portion of SCE’s electricity grid as the Davis properties. Coronus’s interest in
interconnection for its solar farm project was predicated on entering into a CREST
agreement with SCE. Coronus’s corporate filing with the Securities and Exchange
Commission made clear that Coronus only intended to operate the projects if it could do
so under CREST.
As of 2012, the CREST program was nearing its end because it was close to being
oversubscribed. SCE continued to process Coronus’s applications to interconnect its
solar projects to the electricity grid until the transmission and distribution lines became
10 Davis also alleges as part of his sixth cause of action that SCE charged Coronus
lower fees for its application. Specifically, according to Davis, SCE charged Coronus
only $11,400 for the studies necessary to approve interconnection of a 1500 kW
generator to the electricity grid. By contrast, SCE charged Davis $61,400 for studies on a
single 18 kW solar generator.
13
oversubscribed. Effective July 24, 2013, SCE met its obligation to purchase the required
amount of eligible generation under CREST and the CREST program closed to new
customers.
Davis contends that SCE, by processing Coronus’s applications and placing
Coronus in the “queue” for approval ahead of Davis, prevented Davis from having his
applications approved prior to the closing of the CREST program. According to Davis,
“[b]oth the costs of interconnection, and the availability of CREST are limited by ‘queue’
systems where each entry into the ‘queue’ makes subsequent entry by others either more
expensive, more difficult, or impossible.”
At the heart of Davis’s claims is the allegation that Coronus was not eligible for
the CREST program because of the size of its projects. Under section 399.20 and the
CREST program, only generating facilities under 1.5 megawatts can participate in the
program. Davis alleges that Coronus’s projects were larger than 1.5 megawatts,
including one that was 7.5 megawatts and two that were 4.5 megawatts. Davis alleges
that SCE was able to circumvent the 1.5 megawatt restriction by using a procedure called
“daisy chaining.” According to Davis, “‘[d]aisy chaining’ is splitting one large project
into several smaller ones for the purpose of evading maximum size limitations.”
Davis alleges that on May 24, 2012 in Decision 12-05-035, the PUC specifically
prohibited “daisy-chaining” to evade project size limitations. This decision is attached as
exhibit 4 to SCE’s request for judicial notice.11 The PUC finds in this decision, with
11 On September 11, 2014 SCE filed a request for judicial notice of 19 documents.
First, “SCE requests that the Court take judicial notice of six documents that were not
previously presented to the Trial Court,” which are attached as exhibits one through six.
We grant the request as to exhibits one through three, which are documents filed in
Davis’s PUC proceeding, including a “Scoping Memo and Ruling” regarding how the
PUC proceeding would proceed (Exhibit 1), the Second Amended Complaint dated June
19, 2014 filed with the PUC (Exhibit 2), and a transcript of an evidentiary hearing before
Administrative Law Judge Jeanne McKinney on August 18, 2014 (Exhibit 3). We also
grant SCE’s request for judicial notice of Exhibits 4 and 5, which are PUC decisions
relating to other projects, which address the “daisy-chaining” procedure. However, we
14
respect to a different solar program: “[w]e agree . . . that additional measures must be
taken to prevent daisy-chaining and agree with the concerns raised regarding daisy-
chaining to evade the project size restrictions.”
On August 30, 2012 SCE entered into CREST agreements with Coronus, even
though the PUC had two months earlier prohibited “daisy chaining.” Davis alleges that
once SCE agreed that his interconnection applications were eligible for CREST, Coronus
“had used up all of the available capacity on the distribution and transmission lines in our
area and interconnection would have entailed years of delay and prohibitive cost.”
Davis also alleges that SCE violated its Rule 16 on “Service Extensions” by
approving the Coronus application because the tariff provides that no more than one
service may be supplied to “a single enterprise on a single premise.” By contrast, SCE
rejected one of Davis’s CREST applications on the basis that Rule 16 prohibited more
than one service to a single premise.
deny SCE’s request for judicial notice of Exhibit 6, a PUC decision regarding SCE’s
Tariff Rule 22 for lack of relevance.
We take judicial notice of exhibits one through five as administrative records of
the PUC. (Evid. Code, §§ 452, subd. (c), 459, subd. (a); Hartwell, supra, 27 Cal.4th at
p. 286, fn. 4 [taking judicial notice of PUC orders issued after filing of the Court of
Appeal opinion]; Associated Builders & Contractors, Inc. v. San Francisco Airports
Com. (1999) 21 Cal. 4th 352, 375, fn. 4. [court may take judicial notice of administrative
agency records]; PG&E Corp. v. Public Utilities Com. (2004) 118 Cal. App. 4th 1174,
1220, fn. 38 [“briefs filed . . . in rulemaking proceedings before the PUC” judicially
noticed under Evid. Code, §§ 452, subd. (c), 459].) We take judicial notice of the
documents for the purpose of determining the procedural posture of this case before the
PUC, but “‘“we do not take judicial notice of the truth of all matters stated therein.”’”
(People v. Castillo (2010) 49 Cal. 4th 145, 157.)
The request for judicial notice also asks that this court take judicial notice of 13
documents that were before the trial court and are included in the Joint Appendix. This
request is denied as unnecessary because the documents were part of the record before
the trial court and are included in the record on appeal. (Navellier v. Sletten (2002) 29
Cal. 4th 82, 87, fn. 5)
15
b. Allegations Relating to Approval of the Coronus Applications
The seventh cause of action alleges that SCE breached its duty to apply its tariffs,
including Rule 21, uniformly to all customers, specifically alleging preferential treatment
for Coronus.
The eighth cause of action alleges SCE unlawfully allowed Coronus to “daisy
chain” its projects and thereby occupy space in both the CREST queue and the
interconnection queue for projects larger than 1.5 megawatts. Davis alleges that SCE’s
approval of Coronus’s application violated section 399.20, the CREST tariff, Rule 16,
and the PUC’s decision on daisy-chaining (No. 12-05-035).
D. SCE’s Demurrer and the Trial Court’s Ruling
On January 17, 2014 SCE demurred to all nine causes of action on the grounds
that: (1) the superior court lacked subject matter jurisdiction to hear the action because
Rule 21, section K.1. grants “initial jurisdiction” to the PUC “to interpret, add, delete or
modify any provision of this Rule or any agreement entered into between Distribution
Provider and Applicant or Producer to implement this tariff . . .and to resolve disputes
regarding Distribution Provider’s performance of its obligations under Commission-
jurisdictional tariffs, the applicable agreements, and requirements related to the
interconnection of Applicant’s or Producer’s Generating Facility or Interconnection
Facilities pursuant to this Rule”; (2) the complaint is barred under section 1759; (3) the
complaint is barred because Davis failed to exhaust mandatory dispute resolution
procedures in Rule 21, section K; and (4) at a minimum, the action should be stayed and
the claims referred to the PUC under the primary jurisdiction doctrine.
On March 28, 2014 the trial court sustained SCE’s demurrer without leave to
amend, holding that it was without jurisdiction to hear Davis’s claims. The trial court
found that “[e]ach of [Davis’s] claims arises from a dispute regarding [his] request to
interconnect his power system to [SCE’s] power grid.” Further, the court held that
Rule 21 provided a dispute resolution process that, in section K.1., provides “that the
Commission has initial jurisdiction to resolve disputes regarding the distribution
16
provider’s performance of its obligations under Commission-jurisdictional tariffs.” The
court also held that “[t]he [PUC] has exclusive jurisdiction over the regulation and
control of utilities, and once it has assumed jurisdiction, it cannot be hampered, interfered
with, or second-guessed by a concurrent superior court action addressing the same issue.”
Finally, the court found that the “action would interfere with [the PUC’s] initial
jurisdiction to resolve the dispute.” On these bases, the court sustained SCE’s demurrer.
The court also found that “[i]t is not reasonabl[y] possible for [Davis] to correct the
defect that the Court lacks jurisdiction to hear his claims by amendment,” and denied
leave to amend.
The trial court entered a judgment of dismissal without prejudice on June 10,
2014.
E. Davis’s Complaints Filed with the PUC
Before filing this action, Davis filed two formal complaints with the PUC relating
to his attempts to interconnect his solar generating systems to SCE’s electricity grid. The
first complaint was filed on August 23, 2012. In the complaint, Davis alleges that SCE
violated section 2827, subdivision (c)(1), “by wrongly refusing to make the [NEM] tariff
available for the purpose of interconnecting enough solar generating capacity to meet the
electrical requirements of an electric vehicle charging station at [Davis’s] residence, and
. . . at any of [his] other properties . . . .”
Davis filed his second complaint with the PUC in November 2013. The second
complaint alleges that SCE refused to approve some of his applications for solar
generating systems at his 20 properties under the NEM program and required that Davis
reduce the size of the systems to obtain CSI incentive funds. At some point the two
complaints were consolidated into one proceeding.
On May 28, 2014 PUC Commissioner Michael Peevey and Administrative Law
Judge Jeanne McKinney issued a “Scoping Memo and Ruling” (scoping memo) that sets
forth the scope of the consolidated proceedings on the first two complaints. The scoping
memo describes Davis’s complaints as alleging that SCE “has violated [section] 2827[,
17
subdivision] (c)(1) by refusing to allow some of Davis’s projects to interconnect under
SCE’s NEM tariff and by refusing to pay CSI incentives for some of the projects. SCE
asserts that the projects are sized too large to qualify for the programs.” (Fn. omitted.)
The scoping memo calls for evidentiary hearings on the factual issues raised and
briefing on the legal issues. The scoping memo sets forth four issues for legal briefing,
including a number of technical issues relating to the NEM program. For example, one
legal issue is described as the question: “Can the annual estimated generation for
purposes of NEM generating facility size requirements be calculated using the
manufacturer’s inverter efficiency rate for situations involving high panel to inverter
ratios?” One of the three issues listed as requiring an evidentiary hearing is the
following: “If Davis installs solar panels at properties he rents to tenants, resulting in
electricity used not by Davis but by his tenants, does the installation still ‘offset
customer’s own electrical requirements’ such that the project can qualify for NEM under
[section] 2827[, subdivision] (b)(4)?”
In its scoping memo, the PUC set a schedule for the proceeding, including legal
briefing, testimony and issuance of a decision on the first two complaints by
November 22, 2014, as well as the beginning of Phase 2 relating to the claims alleged in
this action.
In June 2014, following the trial court’s ruling sustaining SCE’s demurrer, Davis
filed a second amended complaint in the consolidated PUC proceeding, which alleges
each of the claims set forth in his superior court complaint. The second amended
complaint provides: “Other than minor formatting changes, Part Two is identical to the
complaint dismissed by the superior court.”
Judge McKinney held an evidentiary hearing on Davis’s consolidated proceeding
on August 18, 2014. At the hearing SCE sought a stay of the “Part 2 claims,” referring to
the claims that are at issue in this appeal. According to the record, Judge McKinney
discussed this request with the parties and stated: “While we were off the record we
determined that it makes sense to essentially hold the Part 2 claims until we get the
18
results of Mr. Davis’s appeal.” Accordingly, the pending PUC proceeding has been
stayed until resolution of this appeal.
DISCUSSION
A. Standard of Review
“In determining whether plaintiffs properly stated a claim for relief, our standard
of review is clear: ‘“We treat the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We
also consider matters which may be judicially noticed.” [Citation.] Further, we give the
complaint a reasonable interpretation, reading it as a whole and its parts in their context.
[Citation.] When a demurrer is sustained, we determine whether the complaint states
facts sufficient to constitute a cause of action. [Citation.] And when it is sustained
without leave to amend, we decide whether there is a reasonable possibility that the
defect can be cured by amendment: if it can be, the trial court has abused its discretion
and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]
The burden of proving such reasonable possibility is squarely on the plaintiff.’
[Citations.]”12 (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126; accord,
Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal. App. 4th 567, 571 [“the judgment
here must be affirmed unless plaintiffs can show that the complaint falls outside the scope
of the PUC’s jurisdiction or that the litigation will not interfere with the PUC’s exercise
of its authority”].) “A demurrer is proper in cases in which the plaintiff is not able to
state a cause of action which is within the subject matter jurisdiction of the court.”
(Schell v. Southern Cal. Edison Co., supra, 204 Cal.App.3d at p. 1047.)
12 Davis does not seek leave to amend. We find the trial court properly denied leave
to amend because Davis presented no facts to suggest he could amend his complaint to
avoid exclusive jurisdiction in the PUC.
19
B. The PUC Has Exclusive Jurisdiction Over Regulation and Control of Public
Utilities
“‘The commission [PUC] is a state agency of constitutional origin with far-
reaching duties, functions and powers. (Cal. Const., art. XII, §§ 1-6.) The Constitution
confers broad authority on the commission to regulate utilities, including the power to fix
rates, establish rules, hold various types of hearings, award reparation, and establish its
own procedures.’” (Covalt, supra, 13 Cal.4th at pp. 914-915; accord, Hartwell, supra, 27
Cal.4th at p. 264.)
Further, under the Public Utilities Act, the PUC has “broad authority to ‘supervise
and regulate every public utility in the State’ (§ 701) and grants the commission
numerous specific powers for the purpose. . . . [T]he Legislature further authorized the
commission 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. [Citation].” (Covalt, supra, 13 Cal.4th at p. 915.)
Among these powers, the PUC has the power to issue equitable relief, including
injunctive relief and reparations to ratepayers, as well as to assess fines and penalties.
(§§ 734, 2107; Wise v. Pacific Gas & Electric Co. (1999) 77 Cal. App. 4th 287, 299.)
However, as SCE acknowledges, the PUC’s authority to order reparations to aggrieved
ratepayers is limited to reparations for rates that are “unreasonable, excessive, or
discriminatory” (§ 734) ; the PUC does not have authority to award other damages. (Cal.
Const., art. XII, § 4; Wise, supra, at p. 299.)
As part of its grant of broad power to the PUC, “the Legislature has chosen to
limit the jurisdiction of judicial review of the PUC’s decisions.” (Hartwell, supra, 27
Cal.4th at p. 265.) Specifically, section 1759, subdivision (a), provides: “No 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.”
20
We next turn to the limits on judicial review of utility actions.
1. The courts have applied the Covalt test to determine whether the PUC has
exclusive jurisdiction over damage actions against public utilities.
The courts have attempted to reconcile the limits on judicial review in section
1759 with the grant of jurisdiction to the superior court under section 2106. Section 2106
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 willful, 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.”
Our Supreme Court first considered how to reconcile these two sections in the
leading decisions of Waters v. Pacific Telephone Co. (1974) 12 Cal. 3d 1, 4 (Waters) and
Covalt, supra, 13 Cal.4th at pp. 917-918. As the court held in Covalt, citing to Waters,
“[a]ddressing the question of statutory construction, this court declared the primacy of
section 1759 and the correspondingly limited role of section 2106. The court held that ‘in
order to resolve the potential conflict between sections 1759 and 2106, the latter section
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.’
[Citation.]” (Covalt, supra, at pp. 917-918, quoting Waters, supra, at p. 4.)
The court in Covalt held further, “‘[t]he PUC has exclusive jurisdiction over the
regulation and control of utilities, and once it has assumed jurisdiction, it cannot be
hampered, interfered with, or second-guessed by a concurrent superior court action
addressing the same issue.’ [Citation.]” (Covalt, supra, 13 Cal.4th at p. 918, fn. 20.)
Moreover, “[u]nder the Waters rule, accordingly, an action for damages against a public
utility pursuant to section 2106 is barred by section 1759 not only when an award of
21
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.” (Id. at p. 918, fn. omitted.)
Under this theory, the court in Waters found that an action for damages resulting
from telephone service interruptions caused by the utility’s negligence was barred by
section 1759 because the plaintiff sought damages in excess of the utility’s tariff. The
court held that allowing the suit to proceed would thwart the PUC’s “general policy” of
limiting liability of telephone utilities for ordinary negligence. (Waters, supra, 12 Cal.3d
at pp. 10-11.)
In Covalt, the court held that section 1759 barred a superior court action for
damages allegedly caused by electric and magnetic fields from power lines operated by a
public utility. In reaching this holding, the court established a three part test: (1) whether
the PUC had the authority to adopt a regulatory policy; (2) whether the PUC had
exercised that authority; and (3) whether the superior court action would hinder or
interfere with the PUC’s exercise of its regulatory authority. (Covalt, supra, 13 Cal.4th at
pp. 923, 926, 935; accord, Hartwell, supra, 27 Cal.4th at p. 266; Anchor Lighting v.
Southern California Edison Co. (2006) 142 Cal. App. 4th 541, 549.)
Applying this test, the court in Covalt found that the PUC possessed the authority
to regulate matters relating to electromagnetic fields around power lines; the PUC had
exercised its authority to adopt policies reflecting its finding that it lacked sufficient
information to decide whether the fields were dangerous; and a civil action would
interfere with and hinder the ongoing regulatory efforts of the PUC. (Covalt, supra, 13
Cal.4th at p. 935.)
In Hartwell, our Supreme Court applied Covalt’s three-part test in finding that
some of the plaintiffs’ claims were barred under section 1759 in a civil action alleging
that water utilities had provided them unsafe drinking water. (Hartwell, supra, 27
Cal.4th at pp. 275-278.) Specifically, the court found that the challenge to the adequacy
22
of the drinking water standards was barred because it would interfere with a “‘broad and
continuing supervisory or regulatory program’ of the [PUC] . . . .” (Id. at pp. 275, 276.)13
However, the court held that the plaintiffs could proceed on a theory that the drinking
water failed to meet the federal and state drinking water standards because the claims
would not interfere with the PUC’s regulatory policy that water utilities comply with the
standards. (Ibid.)
Other courts since Covalt have found civil actions barred under section 1759
where the action would interfere with the PUC’s authority or policies. (See e.g.,
Guerrero v. Pacific Gas & Electric Co., supra, 230 Cal.App.4th at pp. 576-577 [§ 1759
barred civil suit following pipeline explosion alleging utility misappropriated $100
million in ratepayer money that should have been spent on pipeline safety because
lawsuit would interfere with PUC’s ongoing administrative proceedings following the
explosion]; Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal. App. 4th 225, 242-243
[lawsuit alleging excessive tree trimming by utility around power lines above minimum
standards set by PUC found within exclusive jurisdiction of PUC]; Anchor Lighting v.
Southern California Edison Co., supra, 142 Cal.App.4th at pp. 549-550 [§ 1759 barred
civil suit by commercial business against SCE for refusal to provide it 10 percent
discount provided to other commercial customers]; Schell v. Southern Cal. Edison Co.,
supra, 204 Cal.App.3d at pp. 1042-1043, 1045-1046 [§ 1759 barred suit against utility by
owner of recreational vehicle park alleging discrimination by utility for charging him
commercial electricity rate where determination of appropriate rate was properly in
exclusive purview of PUC].)
This district in Anchor Lighting addressed issues similar to those raised in this
case. The court found that Anchor’s lawsuit would interfere with the PUC’s ratemaking
function because determination of whether Anchor was entitled to the 10 percent discount
13 As to the preempted claims against the utilities, the court affirmed the Court of
Appeal’s holding that the trial court erred in staying the proceedings instead of ruling on
the preemption issue. (Hartwell, supra, 27 Cal.4th at pp. 264, 282-283.)
23
would require an analysis of whether Anchor’s peak energy demand would qualify it as a
“small commercial customer” under SCE’s tariff. (Anchor Lighting v. Southern
California Edison Co., supra, 142 Cal.App.4th at pp. 545, 550 & fn. 3.)
Similarly, in Schell, our colleagues in the Fourth District found that the PUC had
exclusive jurisdiction over a lawsuit raising the question of whether a recreational vehicle
park should be charged electricity rates applicable to mobile home parks or other
domestic or commercial rates pursuant to an SCE tariff. (Schell v. Southern Cal. Edison
Co., supra, 204 Cal.App.3d at p. 1046.) The court found that this determination “is
clearly within the exclusive purview of the PUC as part of its continuing jurisdiction over
rate making and rate regulation . . . .” (Ibid.) The court in Schell noted, as here, that the
issues raised in the plaintiff’s case were pending in three separate cases before the PUC.
(Ibid.)
Moreover, the court addressed the ability of the plaintiff to recover on his
discrimination claims: “His counts relating to damages, injunctive, and other relief for
Cal. Ed.’s alleged discrimination against him . . . will not be ripe until the PUC and the
Supreme Court have made a final determination as to whether or not the DMS-II
schedule [for mobile home parks] applies to him. Thus, none of the causes of action in
plaintiff’s amended complaint are properly before the court at this time.” (Schell v.
Southern Cal. Edison Co., supra, 204 Cal.App.3d at p. 1047.)14
By contrast, in cases where the courts have found that the PUC does not have
exclusive jurisdiction, the lawsuits have typically not required interpretation of PUC-
approved rules. (See, e.g., People ex rel. Orloff v. Pacific Bell, supra, 31 Cal.4th at
p. 1145 [court had jurisdiction over false advertising claims brought by district attorneys
where suit would not undermine PUC policy or interfere with its regulatory authority];
Mata v. Pacific Gas & Electric Co. (2014) 224 Cal. App. 4th 309, 320 [lawsuit by heirs of
decedent who was electrocuted by a power line while trimming a tree not barred, finding
14 The decision in Schell was cited approvingly by our Supreme Court in Covalt.
(Covalt, supra, 13 Cal.4th at pp. 921-923.)
24
that damage action “complements and reinforces” utility rule requiring utility to exercise
reasonable care in trimming trees to ensure that its power lines are safe];15 Cundiff v.
GTE California Inc. (2002) 101 Cal. App. 4th 1395, 1411 [damage action against utility
for deceptive billing disclosure practices not barred by § 1759]; Wise v. Pacific Gas &
Electric Co., supra, 77 Cal.App.4th at p. 295 [finding no exclusive jurisdiction over
unfair competition and fraud claims alleging utility failed to replace old valves after
charging ratepayers for the cost of its replacement program because lawsuit would not
interfere or otherwise impede any PUC regulatory policy]; Cellular Plus, Inc. v. Superior
Court (1993) 14 Cal. App. 4th 1224, 1246 [allowing civil suit against two cellular
telephone service companies under Cartwright Act for price fixing, finding that suit
would not “‘hinder or frustrate’” the PUC’s supervisory or regulatory powers].)
This district in Wilson v. Southern California Edison Co. (2015) 234 Cal. App. 4th
123 recently considered the impact of section 1759 on a lawsuit concerning stray voltage
from SCE’s electricity grid. In Wilson, the court held that the PUC did not have
exclusive jurisdiction over the plaintiff’s damage action for harm caused by stray voltage
from the SCE electricity grid, holding: “In light of the absence of any indication that the
PUC has investigated or regulated the issue of stray voltage, and without any evidence
that stray voltage cannot be mitigated without violating the PUC’s regulation requiring
grounding, we cannot say that Wilson’s lawsuit would interfere with or hinder any
supervisory or regulatory policy of the PUC.” (Id. at p. 151.)
15 Both Mata and Sarale involved actions against utilities for their tree trimming
practices. The First District in Mata distinguished the Third District ruling in Sarale on
the basis that Mata involved whether the utility company used reasonable care in keeping
its power lines safe above the minimum mandated by the PUC; Sarale involved a claim
by landowners that the utility company trimmed the trees beyond what was mandated by
the PUC rule. (See Mata v. Pacific Gas & Electric Co., supra, 224 Cal.App.4th at
pp. 319-320; Sarale v. Pacific Gas & Electric Co., supra, 189 Cal.App.4th at p. 242.)
The court in Mata noted that “recognition of the landowners’ claims [in Sarale] would
have effectively countermanded the authorization that the PUC granted the utility to
make that determination and to extend clearance beyond the minimum when necessary to
ensure service reliability or public safety.” (Mata, supra, at p. 319.)
25
Davis relies heavily on Vila v. Tahoe Southside Water Utility (1965) 233
Cal. App. 2d 469 and Cundiff v. GTE California Inc., supra, 101 Cal. App. 4th 1395 to
support his position that section 2106 authorizes “[t]he ‘full power of the courts to pass
judgment on what utilities do.’” Both cases are distinguishable.
In Vila, a customer sued a water company for its failure to provide water service,
causing the building to be vacant. Significantly, the court found that the utility had “an
unambiguous provision in its own rules” that required the provision of water and that the
suit would therefore be “in aid and not in derogation of the jurisdiction of the
commission.” (Vila v. Tahoe Southside Water Utility, supra, 233 Cal.App.2d at p. 479.)
Further, the court held: “To deny a plaintiff access to the courts for redress of such a
wrong [no water service] would be a gross injustice.” (Ibid.)
Similarly, in Cundiff, this court allowed a lawsuit to proceed against telephone
companies that allegedly had been deceptively charging customers hidden phone rental
charges. (Cundiff v. GTE California Inc, supra, 101 Cal.App.4th at pp. 1406-1407). The
court affirmed the limits imposed by section 1759, holding that “[s]ection 1759 defines
and limits the power of courts to pass judgment on, or interfere with, what the [PUC]
does.” (Id. at p. 1405.) However, the court found that the plaintiffs were not challenging
the companies’ rates, but only their billing practices, and thus “would not have the effect
of reversing, correcting or annulling any decision or order of the commission . . . .” (Id.
at p. 1411.)
We next turn to application of the Covalt test to Davis’s claims.
2. The Covalt test supports a finding of exclusive PUC jurisdiction over
Davis’s claims.
Under our Supreme Court’s decision in Covalt, we consider (1) whether the PUC
has the authority to adopt a regulatory policy; (2) whether the PUC has exercised that
authority; and (3) whether the superior court action would hinder or interfere with the
PUC’s exercise of regulatory authority. (Covalt, supra, 13 Cal.4th at pp. 924, 926, 935;
accord, Hartwell, supra, 27 Cal.4th at p. 266.)
26
First, it is undisputed that the PUC has the authority to adopt tariffs governing
applications to interconnect solar energy generating systems to a utility’s electricity grid.
Second, the PUC has exercised that authority by its approval of Rule 21, Rule 16, and the
CREST and NEM programs. The central question here, therefore, is whether Davis’s
action “would hinder or interfere with the PUC’s exercise of regulatory authority.”
(Hartwell, supra, 27 Cal.4th at p. 266.) We conclude that it would.
Preliminary, we note that the gravamen of Davis’s action is that SCE has failed to
comply with Rule 21, Rule 16 and its rules regarding the CREST and NEM programs, all
of which have been approved by the PUC as part of its regulatory program. In addition,
each of Davis’s causes of action is currently alleged in the proceeding pending before the
PUC. We will address each cause of action in turn.
With respect to Davis’s first cause of action for deceit, the alleged
misrepresentation pertains to the sizing of Davis’s solar generating systems under the
NEM program, which is precisely the issue raised in Davis’s second complaint before the
PUC. In order to prove a claim for deceit, Davis will need to show that SCE made a false
statement of fact to Davis. As our Supreme Court has held: “‘“The elements of fraud,
which give rise to the tort action for deceit, are (a) misrepresentation (false
representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’);
(c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting
damage.”’ [Citation]” (Small v. Fritz Companies, Inc. (2003) 30 Cal. 4th 167, 173;
accord, McClain v. Octagon Plaza, LLC (2008) 159 Cal. App. 4th 784, 792.) The tort
“encompasses ‘[t]he assertion, as a fact, of that which is not true, by one who has no
reasonable ground for believing it to be true’ . . . . [Citations.]” (Small, supra, at p. 174.)
In order to determine whether SCE made a false statement of fact to Davis
regarding the sizing of his solar generating systems, the trial court would need to interpret
the sizing requirements under the NEM and CSI programs, precisely the subject of the
pending PUC proceeding. This determination could therefore interfere with the PUC’s
interpretation of the NEM and CSI tariffs.
27
We next turn to Davis’s second through fourth causes of action for SCE’s failure
to comply with Rule 21’s deadlines for processing his solar generating applications under
the NEM program. As we discuss above, Rule 21 provides that the PUC has “initial
jurisdiction” over interpretation and implementation of Rule 21 and provides a process
for dispute resolution and the filing of a complaint with the PUC. The rule’s
specification that the PUC has “initial jurisdiction” is not determinative of whether the
PUC has exclusive jurisdiction but is a factor for us to consider in evaluating Davis’s
claims.
Significant here is the complexity of the determination of whether SCE has
violated the deadlines set forth in Rule 21. As a threshold matter, different deadlines
apply depending on whether the proposed projects are “exporting” or “non-exporting”
facilities under the rule. Further, analysis of SCE’s compliance with the deadlines will
require interpretation of Davis’s obligations under the rule. While the determination of
whether SCE provided notice to Davis whether his application was complete within 10
days, as alleged in the second cause of action, appears straightforward, the other
deadlines are more complicated.16
For example, the 20-day deadline alleged in the third cause of action for
completing the initial engineering review runs from the date the application is deemed
complete, a date subject to interpretation. Similarly, the fourth cause of action alleges
SCE’s failure to comply with the 30-day deadline to complete the processing of NEM
interconnection applications, but this provision provides that applications “normally” will
be processed within 30 business days, specifies what needs to be completed before the
30-day clock begins to run, and includes many exceptions to the 30-day time period, all
16 While arguably the claims alleged in the second cause of action could be
determined by the superior court without interfering with the PUC’s authority, we find
that this deadline claim should be considered as part of the other causes of action for
violation of deadlines under Rule 21 and therefore also falls within the exclusive
jurisdiction of the PUC.
28
of which will need to be interpreted with respect to the 20 applications submitted by
Davis.
The fifth and ninth causes of action allege SCE’s failure to pay for specified
upgrades under Rule 21 by improperly classifying Davis’s solar generating facility as an
“interconnection facility” instead of a “distribution facility.” These causes of action will
likewise require interpretation of Rule 21, a task particularly suited to the PUC.
In causes of action six through eight, the complaint alleges SCE’s unlawful
implementation of its CREST program. The sixth cause of action challenges how SCE
calculated the costs for Davis’s solar applications submitted under the CREST program,
an issue requiring interpretation of Rule 21. Notably, Rule 21 provides only that a
Distribution Provider “may agree” to reduced costs for atypical interconnection requests.
It would be up to the PUC to determine whether there are circumstances under which
SCE should have reduced Davis’s application costs. (See Rule 21, § C.1.b(5)
[E.3.a(iv)].) The seventh and eighth causes of action allege that SCE improperly allowed
Coronus to “daisy chain” its projects to avoid the size limitations applicable to Rule 21
and the CREST program and, by allowing Coronus to take a position in the queue ahead
of Davis, denied him entry into the CREST program.
Resolution of whether “daisy chaining” violates Rule 21 and whether Coronus
should have been granted approval to participate in the CREST program is precisely what
the PUC should determine, not the superior court. Indeed, as we discuss above, the PUC
has already issued a decision that addresses “daisy-chaining” in another context.
Determination of whether SCE improperly allowed the practice of “daisy-chaining” for
Coronus’s application as part of its implementation of the CREST program is the type of
determination best suited to the PUC.
We conclude that each of Davis’s causes of action will require interpretation of
Rule 21, Rule 16, the CREST program or the NEM program, which determinations
“would hinder or interfere with the PUC’s exercise of regulatory authority” with respect
to interconnection of solar generating systems to utility electricity grids. (Hartwell,
supra, 27 Cal.4th at p. 266.) Indeed, the interpretation of Rule 21, Rule 16, and the
29
CREST and NEM programs is analogous to the analysis of SCE’s tariffs for “small
commercial customers” this court found to fall within the exclusive jurisdiction of the
PUC in Anchor Lighting v. Southern California Edison Co., supra, 142 Cal.App.4th at
p. 550, and the interpretation of the SCE rate schedule for mobile home parks the Fourth
District found to be in the exclusive jurisdiction of the PUC in Schell v. Southern Cal.
Edison Co., supra, 204 Cal.App.3d at p. 1046.17
While we affirm the trial court’s judgment sustaining SCE’s demurrer without
leave to amend, this will not leave Davis without a remedy. The PUC has extensive
powers to award injunctive relief, reparations and penalties. Further, review of the
PUC’s ruling is available in the Court of Appeal under section 1759. If Davis receives a
favorable ruling from the PUC but seeks relief beyond the equitable remedies available to
the PUC, he will at that time have “ripe” claims to be filed in the superior court.18 (See
Schell v. Southern Cal. Edison Co., supra, 204 Cal.App.3d at p. 1047.)19
17 Because we affirm the trial court’s order finding that the PUC had exclusive
jurisdiction over Davis’s claims, we do not reach the issue raised by SCE of whether the
court should have applied the doctrine of exhaustion of administrative remedies or
primary jurisdiction.
18 As SCE has acknowledged in its brief, “if this Court affirms the Trial Court’s
ruling that the [PUC] has exclusive, initial jurisdiction to adjudicate Davis’s claims, it
does not necessarily foreclose a later action for damages in Superior Court.”
19 While the court in Schell does not discuss the concept of ripeness other than to
find that the plaintiff’s claims “will not be ripe until the PUC and the Supreme Court
have made a final determination as to whether or not the DMS-II schedule applies to
him” (Schell v. Southern Cal. Edison Co., supra, 204 Cal.App.3d at p. 1047), other courts
have addressed the issue of ripeness with respect to review of an agency’s action. (See,
e.g., Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal. 3d 158, 171,
174 [challenge to Coastal Commission guidelines for conditions of permit approval not
ripe where lawsuit did not challenge application of guidelines to specific permit
approval]; PG&E Corp. v. Public Utilities Com. (2004) 118 Cal. App. 4th 1174, 1216-
1217, 1222 [challenge to PUC condition applicable to utilities not ripe because PUC had
not yet applied its interpretation to a concrete set of facts].)
As our Supreme Court held in Pacific Legal Foundation with respect to the
ripeness doctrine, “its basic rationale is to prevent the courts, through avoidance of
30
DISPOSITION
The judgment is affirmed. SCE shall recover its costs on appeal.
FEUER, J.*
We concur:
PERLUSS, P. J
ZELON, J.
premature adjudication, from entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a concrete way by the
challenging parties.” (Pacific Legal Foundation v. California Coastal Com., supra, 33
Cal.3d at p. 171.) In this case, as in PG&E Corp., an action in superior court to challenge
SCE’s interpretation of Rule 21, Rule 16 and the CREST and NEM programs will only
become ripe once the PUC has made a final determination, after any appellate review, as
to its interpretation of those provisions as applied to Davis’s solar applications. (See
PG&E Corp. v. Public Utilities Com., supra, 118 Cal.App.4th at p. 1217.)
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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