Cal. Public Utilities Com. v. Super. Ct.

Filed 8/31/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CALIFORNIA PUBLIC UTILITIES
COMMISSION,
Petitioner, A147570
v. (San Francisco County
THE SUPERIOR COURT OF SAN Super. Ct. No. CPF-15-514188)
FRANCISCO COUNTY,
Respondent;
MICHAEL J. AGUIRRE,
Real Party in Interest.
This writ petition raises the narrow question whether a petition to compel the
California Public Utilities Commission (CPUC) to produce documents under the Public
Records Act (PRA) can properly be filed in superior court, or whether Public Utilities
Code section 1759 (section 1759) bars the superior court from exercising jurisdiction
over such a lawsuit. We conclude the latter, and will issue a writ of mandate
commanding the superior court to set aside and vacate its order overruling a demurrer on
this ground and to enter an order sustaining the demurrer without leave to amend.
PROCEDURAL BACKGROUND
Real Party in Interest Michael Aguirre (Aguirre) filed a Petition for Writ of
Mandamus and Complaint for Injunctive and Declaratory Relief in San Francisco
Superior Court against the CPUC for failing to comply with the PRA, Government Code
sections 6250-6276.48 (Complaint). The superior court summarized the allegations in
the Complaint, “The San Onofre Nuclear Generating Station was closed after it leaked
1
radiation in 2012. The [CPUC] regulated the plant. Southern California Edison (SCE)
and San Diego Gas and Electric Company (SDGE) owned the plant. The costs of the
shutdown and loss due to the shutdown exceeded $4 billion. The CPUC approved SCE
assigning $3.3 billion of these costs to utility ratepayers. This agreement was reached in
a hotel room in Warsaw, Poland, at an ex parte meeting between former CPUC President
Michael Peevey (‘Peevey’) and former SCE executive Stephen Pickett (‘Pickett’). The
agreement was outlined on hotel stationary [sic]. The CPUC adopted the agreement,
stopped investigating the plant’s closure and offered $25 million to fund environmental
research at the University of California.” Aguirre made PRA requests seeking the
production of emails and other documents related to the CPUC’s investigation of the San
Onofre Nuclear Generating Station shutdown and the settlement and meetings, as
described above. Aguirre alleges, among other things, that the CPUC refused to produce
records pursuant to certain PRA requests, including emails and writings of Peevey and
current CPUC President Michael Picker “regarding the backroom plan to kill any CPUC
investigation into who and what caused the unlicensed steam generators to be deployed at
San Onofre and who permitted Edison to unlawfully charge Edison customers for them.”1
The complaint requests orders requiring the CPUC to produce writings called for under
Aguirre’s Public Records Request Nos. 1386 and 1414, as described in the complaint.
The CPUC demurred on multiple grounds, including that under Public Utilities
Code section 1759 the superior court has no subject matter jurisdiction over this matter,
1
Aguirre’s petition in the superior court also sought a declaration in what was in
effect a second cause of action that the CPUC had failed to comply with Government
Code section 995 requiring open meetings “because it is providing a criminal defense to
unidentified current and former CPUC agents . . . without determining in a duly noticed
public meeting that providing such a defense in a criminal matter would be in the best
interests of the public entity . . . .” The CPUC demurred on the ground that the superior
court had no jurisdiction over the subject matter, and that Aguirre failed to state facts
sufficient to state a cause of action. The superior court sustained the demurrer to this
cause of action without leave to amend. This ruling is not before us, and we do not
address it. For simplicity, when we refer to the trial court’s ruling on the demurrer in this
opinion, we are referring only to the PRA cause of action.
2
and that Aguirre had failed to exhaust his administrative remedies before filing the
lawsuit. The superior court held multiple hearings on the demurrer, and permitted a
second round of briefing. Although the CPUC steadfastly asserted that the superior court
had no jurisdiction, it acceded to Aguirre’s request for a continuance for the parties to
meet and confer.2
Eventually the superior court overruled the CPUC’s demurrer on these grounds,
and the CPUC filed a petition for an extraordinary writ directing the trial court to vacate
its order and sustain the demurrer.3 We issued an alternative writ directing the superior
court to vacate its order or show cause why we should not issue a peremptory writ. On
July 8, the superior court indicated that it would neither vacate the order nor show cause
why a peremptory writ of mandate should not issue. We received full briefing and heard
oral argument.4 We emphasize that the merits of Aguirre’s Complaint are not before us,
and in reaching our decision that the superior court had no jurisdiction, we do not address
the merits of his underlying claims or his PRA request.
2
Over the course of the hearings, the parties clarified the scope of the dispute,
which we include by way of background only. The CPUC stated it had produced every
record between the CPUC and Southern California Edison that Aguirre had asked for. In
a “status update” filed after the meet and confer, Aguirre stated that documents withheld
were based on two statutory exemptions to the PRA, Government Code section 6255
(deliberative process) and section 6254, subdivision (l) (correspondence with governor).
At a subsequent hearing, Aguirre stated that 133 documents were at issue. Counsel for
the CPUC stated that more than 1,300 documents had been released to Aguirre.
3
Originally the trial court issued a lengthy tentative ruling on November 5, 2015,
sustaining the demurrer because the CPUC “established that the court does not have
jurisdiction to hear the matter,” citing section 1759 and PegaStaff v. Public Utilities
Commission (2015) 236 Cal. App. 4th 374, 383 (PegaStaff I), and because plaintiff “did
not plead facts that he exhausted the administrative relief provided by defendant prior to
filing the instant suit.”
4
We have jurisdiction to review the superior court order overruling the demurrer
and asserting subject matter jurisdiction under Code of Civil Procedure sections 1085 and
1103 and San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal. 4th 893
(Covalt).
3
DISCUSSION
In reviewing a demurrer, we assume the truth of all properly pleaded and judicially
noticeable material facts within the complaint, but not “ ‘ “contentions, deductions or
conclusions of fact or law.” ’ ” (Zelig v. County of Los Angeles (2002) 27 Cal. 4th 1112,
1126.) Whether the superior court has jurisdiction over this action against the CPUC is a
question of law which we review de novo. (Disenhouse v. Peevey (2014) 226
Cal. App. 4th 1096, 1102 (Disenhouse).)
A. Statutory Limitations on Jurisdiction in CPUC Matters
The origins and broad authority of the CPUC are well known and have been
described by our Supreme Court: “The [CPUC] 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. (Id., §§ 2, 4, 6.)” (Consumers Lobby Against Monopolies
v. Public Utilities Com. (1979) 25 Cal. 3d 891, 905.)
In PegaStaff I, supra, 236 Cal. App. 4th 374, we recently described the limitations
on jurisdiction in cases where the CPUC is a party. “[P]ursuant to its plenary authority
under article XII, section 5 of the state Constitution ‘to establish the manner and scope of
review of commission action in a court of record,’ the Legislature has explicitly restricted
the jurisdiction of the superior court in cases involving the CPUC.” (Id. at p. 383.) We
then went on to cite section 1759, which was at issue in PegaStaff I and is at the heart of
this case. It provides: “(a) 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. [¶] (b)
The writ of mandamus shall lie from the Supreme Court and from the court of appeal to
the commission in all proper cases as prescribed in Section 1085 of the Code of Civil
Procedure.”
4
In PegaStaff I, plaintiff PegaStaff sued the CPUC, claiming, among other things,
that Article 5 of the Public Utilities Code was unconstitutional. Article 5 required the
CPUC to take steps to implement the goals of encouraging and developing the use of
women, minority and disabled veteran-owned business enterprises within the public
utility sector. (PegaStaff I, supra, 236 Cal.App.4th at pp. 377, 381.) PegaStaff sought a
declaration that the provisions of Article 5 were unconstitutional, and an injunction
against their enforcement by the CPUC. (Id. at p. 384.) In concluding that the superior
court did not have jurisdiction over the CPUC because of section 1759, we wrote that
section 1759 “make[s] plain that a duty set forth in law is an official duty. Nothing about
that language suggests that a law must first be found constitutional or otherwise valid in
order to be a source of the CPUC’s ‘official duties.’ So long as a law was validly enacted
by the Legislature, any duties such statute imposes on the CPUC are ‘official duties’
within the meaning of section 1759, and the superior courts lack jurisdiction to interfere
with the duties it imposes.” (PegaStaff I at p. 385.)
B. The Public Records Act
The PRA was modeled on the federal Freedom of Information Act (5 U.S.C. § 552
et seq.) for the purposes of giving members of the public access to information possessed
by public agencies. (Filarsky v. Superior Court (2002) 28 Cal. 4th 419, 425 (Filarsky).)
In enacting the PRA, the Legislature declared that “access to information concerning the
conduct of the people’s business is a fundamental and necessary right of every person in
this state.” (Gov. Code, § 6250.) To that end, the PRA establishes a statutory scheme
under which a state agency must respond to a request for public records, either by
complying with the request or by notifying the requestor that records are not subject to
disclosure and providing the reason why. (See Gov. Code, §§ 6253-6254; Filarsky,
supra, 28 Cal.4th at p. 425.)
5
It is undisputed that the PRA applies to the CPUC.5 The CPUC is specifically
listed in the PRA as being one of the state agencies that “shall establish written guidelines
for accessibility of records” under the PRA. (Gov. Code, § 6253.4.) In turn, the CPUC
has set forth its written procedures for PRA requests in its General Order No. 66-C.6 (See
Resolution L-487 (Dec. 17, 2015) Cal. Pub. Util. Com., 2015 Cal. PUC LEXIS 804 at *3
[“The Commission has . . . implemented its responsibility under Cal. Gov’t. Code
§ 6253.4(a), by adopting guidelines for public access to Commission records. These
guidelines are embodied in G.O. 66-C”].)
The PRA also establishes “specific procedures for seeking a judicial determination
of a public agency’s obligation to disclose records in the event the agency denies a
request by a member of the public.” (Filarsky, supra, 28 Cal.4th at p. 426.) These
procedures are set forth in sections 6258 and 6259 of the Government Code.
Government Code section 6258 states that “Any person may institute proceedings
for injunctive or declarative relief or writ of mandate in any court of competent
jurisdiction to enforce his or her right to inspect or to receive a copy of any public record
or class of public records under [the Act]. The times for responsive pleadings and for
hearings in these proceedings shall be set by the judge of the court with the object of
securing a decision as to these matters at the earliest possible time.” (Emphasis added.)
Government Code section 6259 describes the process of judicial review in detail,
and begins with a specific reference to the superior court: “(a) Whenever it is made to
appear by verified petition to the superior court of the county where the records or some
part thereof are situated that certain public records are being improperly withheld from a
member of the public, the court shall order the officer or person charged with
withholding the records to disclose the public record or show cause why he or she should
5
Government Code section 6252, subdivision (f) defines “[s]tate agency” under
the PRA, and section 6253 requires “state or local agencies” to comply with the PRA and
sets forth “agency duties.”
6
On our own motion, we take judicial notice of General Order No. 66-C as an
official act of the CPUC, a state agency. (Evid. Code, § 452, subd. (c).)
6
not do so. The court shall decide the cases after examining the record in camera, if
permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the
parties and any oral argument and additional evidence as the court may allow.” If the
court finds that the decision to refuse to disclose was not justified under Government
Code sections 6254 or 6255, which describe the “[e]xemption of particular records” to
disclosure and the “[j]ustification for withholding records,” respectively, the court orders
the records disclosed; if the court determines otherwise, the court returns the records to
the public official and issues an order supporting the decision not to disclose. (Gov.
Code, § 6259, subd. (b).)
Government Code section 6259, subdivision (c) provides that a superior court
order directing disclosure or supporting the public official’s decision refusing disclosure
is reviewable by “petition to the appellate court for the issuance of an extraordinary writ,”
and sets out the time requirements for seeking such relief, as well as the grounds for
seeking a stay of relief and the availability of contempt of court for failure to obey the
order of the court. The statute also provides for court costs and reasonable attorney fees
to a prevailing plaintiff, and the possibility of court costs and reasonable attorney fees to
the public agency if the plaintiff’s case is clearly frivolous. (Id., subd. (d).)7
7
In Filarsky, supra, 28 Cal. 4th 419, the City of Manhattan Beach (City) denied a
PRA request made by a member of the public. After the individual stated his intent to
file a judicial proceeding under Government Code section 6258, but before he had
actually done so, the City filed an action for declaratory relief under Code of Civil
Procedure section 1060 for the purpose of ascertaining that it was not obligated to
disclose records to the petitioner under the PRA. The member of the public demurred to
the complaint, but the trial court overruled the demurrer and granted declaratory relief to
the City. Our Supreme Court in Filarsky held that the PRA does not authorize a public
agency to initiate an action under Government Code sections 6258 and 6259 to determine
its obligations to disclose documents to a member of the public, and that a declaratory
relief action filed under Code of Civil Procedure section 1060 to determine whether an
agency must publicly disclose records is also impermissible. In so holding, our Supreme
Court described Government Code sections 6258 and 6259 as “special statutory
provisions governing judicial proceedings” arising under the PRA (Filarsky at p. 428),
and explained how they provide “protections and incentives for members of the public to
seek judicial enforcement of their right to inspect public records subject to disclosure”
7
C. Jurisdiction to Enforce a PRA Action Against the CPUC
The CPUC demurred to the Complaint on the ground that section 1759 divested
the superior court of jurisdiction.
We are aware of no published cases that have addressed the precise issue before
us. In a closely analogous case regarding another sunshine-type ordinance in the
Government Code that also imposes duties on the CPUC, our colleagues in the Fourth
District held in Disenhouse, supra, 226 Cal. App. 4th 1096 that section 1759 divested the
superior court of jurisdiction to review claims that CPUC was not complying with the
Bagley-Keene Open Meeting Act (Bagley-Keene). Similar to the PRA, the intent of
Bagley-Keene is “that actions of state agencies be taken openly and that their deliberation
be conducted openly.” (Gov. Code, § 11120.) And like the PRA, Bagley-Keene applies
to the CPUC. (Southern California Edison Co. v. Peevey (2003) 31 Cal. 4th 781, 797.) In
Disenhouse, an individual filed a complaint and then an application for an injunction
requiring a CPUC meeting to be opened to the general public. The superior court denied
the injunction and entered a judgment of dismissal on the ground that it had no
jurisdiction under section 1759. In upholding the superior court’s decision, the Court of
Appeal in Disenhouse applied the “long-standing rule requiring us to construe the
(id. at p. 427), and how they differ in many ways from “ordinary declaratory relief
actions.” (Id. at p. 428.) Our Supreme Court held that the trial court “should have
sustained petitioner’s demurrer to the complaint on the grounds that (1) Government
Code sections 6258 and 6259 set forth the exclusive means under these circumstances for
litigation of the question whether the requested records must be disclosed, (2) litigation of
the matter pursuant to those provisions is the more appropriate procedure for granting
effective relief, and (3) those provisions do not authorize the city to initiate a judicial
proceeding to determine its obligation to disclose public records that have been requested
pursuant to the [PRA].” (Id. at p. 435, emphasis added.) In describing the limited nature
of its holding, the court said that it had “no occasion to decide” other issues that the case
did not present, such as whether a public agency would be authorized to seek disclosure
of records in the possession of another public agency, or whether a third party had the
right to seek a judicial ruling precluding the disclosure of documents pursuant to the
PRA. (Id. at p. 431.) Nor did the Supreme Court in Filarsky address the issue before us,
which is whether the superior court has jurisdiction in the first instance to resolve a PRA
dispute by a member of the public addressed to the CPUC.
8
[Bagley-Keene] Act and section 1759 ‘in a manner which harmonizes their language and
avoids unnecessary conflict.’ (Waters v. Pacific Tel. Co. (1974) 12 Cal. 3d 1, 11.)”
(Disenhouse, supra, at p. 1102.) That entailed construing the judicial enforcement
provisions of the state’s open meeting law (Gov. Code, § 11130.3, subd. (a)) in light of
section 1759, subdivision (b). Government Code section 11130.3, subdivision (a)
provides that interested persons could “commence an action by mandamus, injunction, or
declaratory relief” for the purposes of stopping or preventing violations of the open
meeting law. (Emphasis added.)
The Court of Appeal in Disenhouse had little difficulty concluding that the two
statutes could be harmonized and that the superior court did not err in dismissing the
case: “Our task is straightforward in this case because a mandamus action may be
brought against the commission in the Supreme Court or the Court of Appeal in
appropriate cases (§ 1759, subd. (b)), and a mandamus action is one of the available
means of enforcing the [open meeting act]. (Gov. Code §§ 11130, subd. (a), 11130.3,
subd. (a).)” (Disenhouse, supra, 226 Cal.App.4th at p. 1102.)
In so concluding, the court in Disenhouse made clear that its holding did not
“effectively exempt” the CPUC from the reach of the open meeting act. (Disenhouse,
supra, 226 Cal.App.4th at p. 1102.) “Rather, it respects both the Legislature’s aims in
placing limits on judicial review of commission actions as well as the Legislature’s aims
under the [Open Meeting] Act.” (Id. at p. 1102.)
We conclude that the duty to comply with the PRA is unquestionably an “official
duty” of the CPUC. (PegaStaff I, supra, 236 Cal.App.4th at pp. 384-385.) A “writ of
mandate in any court of competent jurisdiction” is one of the statutory means available to
enforce the PRA (Gov. Code, § 6258, emphasis added), and a “writ of mandamus” may
be brought against the CPUC in the Supreme Court or the Court of Appeal in appropriate
cases under section 1759, subdivision (b).8 Indeed, in the matter before us, Aguirre
8
A writ of mandate is the same as a writ of mandamus. (See Black’s Law Dict.
(10th ed. 2014) p. 1105.)
9
asserts in his Complaint that the superior court “has jurisdiction under Govt. Code
§ 6258.”
As in Disenhouse, our limited holding does not exempt the CPUC from the
requirements of the PRA, or limit Aguirre from seeking judicial relief to enforce his
rights under the PRA. He simply may not seek that relief at the superior court. Our
holding respects the mandate of section 1759, subdivision (b).
In opposition to the writ, Aguirre does not cite our decision in PegaStaff I, let
alone distinguish it.9 The two cases he cites in opposition do not support his position that
9
In overruling the demurrer, although the superior court cited PegaStaff I, it
appeared to mistakenly rely on inapposite language from an entirely different decision
captioned PegaStaff v. Pacific Gas & Electric Co. (2015) 239 Cal. App. 4th 1303
(PegaStaff II), and then attribute that language to PegaStaff I. It compounded the error
by referring to PegaStaff II’s citation to Hartwell Corp. v. Superior Court (2002) 27
Cal. 4th 256, 281 (Hartwell), as if it, too, had been cited in PegaStaff I. No doubt
recognizing the error, Aguirre, in opposing the writ, does not address the trial court’s
reasoning or address any of these cases discussed by the superior court in its written
order; he simply quotes verbatim from the trial court order.
Neither Hartwell nor PegaStaff II involved lawsuits against the CPUC. They are
part of a line of cases which concern third party lawsuits against a CPUC regulated
utility, rather than against the CPUC itself. In PegaStaff II, we addressed to what extent
section 1759 bars jurisdiction in superior courts in actions filed against regulated utilities
and the “ ‘ “potential conflict” ’ ” between section 1759 and Public Utilities Code section
2106, which permits a private right of action against regulated utilities. (PegaStaff II,
supra, 239 Cal.App.4th at p. 1315.) In PegaStaff II, we concluded that the superior court
had jurisdiction in a case against PG&E challenging its minority enterprise program. In
so holding, we discussed and applied the test developed in Covalt, supra, 13 Cal. 4th 893
in actions against regulated utilities. As we described: “ ‘In Covalt, the Supreme Court
“ ‘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.’ ” ’ ”
(PegaStaff II, supra, 239 Cal.App.4th at p. 1315.) “The issue in Covalt was whether
section 1759 barred a superior court action for nuisance and property damage allegedly
caused by electric and magnetic fields from power lines owned and operated by a public
utility. [Citation.] The court, considering the third prong of the test, concluded that a
superior court verdict for plaintiffs would be inconsistent with the PUC’s conclusion ‘that
the available evidence does not support a reasonable belief that 60 Hz electric and
10
the superior court is empowered to adjudicate his present claims against the CPUC.10
Instead, Aguirre focuses on the fact that Government Code section 6259 refers to PRA
proceedings in superior court, and concludes that this must trump any other statutory
provision such as section 1759, subdivision (b).
This is not persuasive. First, Government Code section 6258 describes a PRA
challenge being brought in “any court of competent jurisdiction.” This phrase implies the
existence of a writ proceeding in a court other than the superior court. Second, by its
magnetic fields present a substantial risk of physical harm, and that unless and until the
evidence supports such a belief regulated utilities need take no action to reduce field
levels from existing power lines.’ [Citation.] [¶] Since Covalt was decided, courts have
had repeated occasion to apply the test it established.” (PegaStaff II, supra, 239
Cal.App.4th at pp. 1315-1316.)
Hartwell was one of those cases: a lawsuit was brought by a resident against water
providers who were regulated by the CPUC, and against nonregulated water providers
and industrial defendants who were not regulated by the CPUC. The nonregulated water
providers and industrial defendants claimed that section 1759 applied to preempt superior
court actions against them as well as the CPUC regulated utilities. Their claim was in
part based on the contention that the statutory language in section 1759 does not
distinguish between utility and nonutility parties to a lawsuit. Our Supreme Court found
this argument meritless, and rejected it for many reasons. Quoting from the Court of
Appeal decision in Hartwell with approval, the Supreme Court in Hartwell wrote,
“ ‘Section 1759 provides that no trial level court may “review, reverse, correct, or annul”
or “enjoin, restrain, or interfere with” the PUC in its performance of its duties. By no
stretch of language or logic does this mean that trial courts may not decide issues
between parties not subject to PUC regulation simply because the same or similar issues
are pending before the PUC or because the PUC regulates the same subject matter in its
supervision over public utilities.’ . . . [¶] We agree.” (Hartwell, supra, 27 Cal.4th at p.
280.) It was in this context that the Supreme Court in Hartwell wrote that “when read in
context with the entire regulatory scheme, section 1759 must be read to bar superior court
jurisdiction that interferes with the PUC’s performance of its regulatory duties, duties
which by constitutional mandate apply only to regulated utilities,” and a lawsuit against
nonregulated defendants was not barred by section 1759. (Id. at pp. 280-281.)
10
The only case authority Aguirre cites in its favor, let alone addresses, is In re
Application of Mills Sing (1910) 14 Cal. App. 512, 513 (habeas corpus petition that
construes “section 26 of the juvenile court law”) and Meyer v. Bd. of Trustees (1961) 195
Cal. App. 2d 420, 430 (mandamus action to compel a school board to reinstate a teacher;
interpreting a section of the education code). Aguirre attempts to distinguish Disenhouse,
but not convincingly.
11
nature, the broad limitation on jurisdiction in section 1759, subdivision (a) will
sometimes result in depriving the superior court of jurisdiction it might otherwise have as
a court of general jurisdiction had the party been other than the CPUC. (See Cal. Const.,
art. VI, § 10.) This is so even where there is a statute that explicitly provides for relief in
a superior court. For example, in Independent Laundry v. Railroad Commission (1945)
70 Cal. App. 2d 816 (Independent Laundry), a landlord sued its tenant, the gas company,
and the Railroad Commission (the predecessor to the CPUC11) in superior court. The
lawsuit sought declaratory relief under Code of Civil Procedure section 1060, which
provided then, as now, that an action could be brought “in the superior court for a
declaration of rights and duties.” At issue was whether the superior court had jurisdiction
over the Railroad Commission in light of former section 67 of the Public Utilities Act, the
predecessor to section 1759.12 In affirming the trial court order sustaining a demurrer
without leave to amend and granting a motion for judgment on the pleadings on
jurisdictional grounds, the court in Independent Laundry made the point that despite the
existence of Code of Civil Procedure section 1060, that “section does not enlarge the
jurisdiction of the superior court as to parties and the subject matter, so that if the
commission or the subject matter of this action is not within the jurisdiction of the
superior court, section 1060 will not confer such jurisdiction.” (Independent Laundry,
supra, 70 Cal.App.2d at p. 821.) The same can be said in the matter before us. The fact
that Government Code section 6259 refers to the superior court in connection with
actions under the PRA does not enlarge jurisdiction in the superior court when the case is
against the CPUC.
Aguirre also contends that the Legislature did not intend for section 1759 to
remove jurisdiction from the superior court in PRA cases, because there is a particular
provision of the PRA (Gov. Code, § 6253.4) that requires the CPUC to comply with the
PRA, and this must be “paramount” to the “general provisions” of section 1759. Aguirre
11
See Independent Energy Producers Assn. v. McPherson (2006) 38 Cal. 4th 1020,
1037 (Railroad Commission was administrative predecessor of CPUC).
12
See PegaStaff I, supra, 236 Cal.App.4th at page 385.
12
asserts that “[t]his interpretation is reinforced by the Constitutional mandate that statutes
shall be ‘narrowly construed if it limits the right of access,’ ” citing California
Constitution, article I, section 3, subdivision (b)(2).
We are not persuaded. Article I, section 3, subdivision (b)(1) of the California
Constitution states that the “people have the right of access to information concerning the
conduct of the people’s business, and, therefore, the meetings of public bodies and the
writings of public officials and agencies shall be open to public scrutiny.” Article I,
section 3, subdivision (b)(2), relied on by Aguirre, is a rule of construction, and states in
part: “A statute . . . including those in effect on the effective date of this subdivision,
shall be broadly construed if it furthers the people’s right of access, and narrowly
construed if it limits the right of access.”
Aguirre has not shown how section 1759 limits any right of access. The CPUC is
required to comply with the PRA, whether review is in the superior court or the appellate
court in the first instance. If there is a dispute as to whether the CPUC has complied with
the PRA, filing an action against the CPUC in an appellate court, as required by section
1759 and contemplated as a possibility by Government Code section 6258, will not limit
the public’s right to access to the documents. Aguirre’s attempt to argue otherwise is not
based on section 1759, but on the CPUC’s own administrative procedures for making and
responding to PRA requests, as set forth in General Order No. 66-C. But this is entirely
separate from whether the superior court enforces a PRA request, rather than an appellate
court in the first instance.
Aguirre also contends that original appellate jurisdiction over PRA claims cannot
have been intended and will not work because the appellate court would not be able to
review any documents withheld by the CPUC in camera to determine whether a statutory
exemption is valid. This argument is without merit; neither Government Code section
6258 nor section 1759 compels this conclusion. Aguirre’s theory is that withheld
documents would be considered “new evidence” under Public Utilities Code section
1757, subdivision (a), which states that “[n]o new or additional evidence shall be
introduced upon review by the court.” But as the CPUC points out, if the CPUC denied a
13
PRA request for documents, it would have reviewed the applicable records in reaching its
decision, which would thus make them part of the CPUC’s official record subject to
review before a Court of Appeal (see Pub. Util. Code § 1706); and if the record did not
contain the documents, the CPUC might leave itself open for reversal for lack of
substantial evidence to support its decision. (Pub. Util. Code § 1757.1, subd. (a)(4) [court
may reverse commission when order “is not supported by the findings”].)
Much of Aguirre’s opposition to the writ petition argues the merits of his PRA
request, including several pages that intersperse photographs of the key individuals
involved and reproductions of handwritten notes and emails right into the text. As we
indicated at the outset, we are not reaching any decision on the merits of the PRA request,
and the merits do not inform our decision as to subject matter jurisdiction.
D. Exhaustion of Administrative Remedies
Because we conclude that the superior court had no jurisdiction other than to
sustain the demurrer without leave to amend under section 1759, we do not need to
address the other ground for this writ petition—Aguirre’s failure to exhaust
administrative remedies.13
DISPOSITION
The superior court is directed to sustain the demurrer without leave to amend and
is prohibited from conducting any further proceedings in this matter.
13
“When remedies before an administrative forum are available, a party must in
general exhaust them before seeking judicial relief.” (City of San Jose v. Operating
Engineers Local Union No. 3 (2010) 49 Cal. 4th 597, 609.)
14
_________________________
Miller, J.
We concur:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A147570, CPUC v. Superior Court
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Trial Court and Respondent: Superior Court of San Francisco County
Trial Judge: Hon. Ernest J. Goldsmith
Attorneys for Petitioners
California Public Utilities Commission Arocles Aguilar
Laura Gasser
Mitchell Shapson
Jonathan C. Koltz
Attorneys for Real Party in Interest
Michael J. Aguirre Michael J. Aquirre
Maria C. Severson
A147570, CPUC v. Superior Court
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