1. Section 1759 Exclusive Jurisdiction of CPUC

2. Section 1759 confers exclusive jurisdiction to CPUC over the regulation and control of utilities. “No court of this state, except the Supreme Court and the court of appeal, to the extent specified in [the Public Utilities Code], shall have jurisdiction to review, reverse, correct, or annul any order or decision of the [CPUC] or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the [CPUC] in the performance of its official duties, as provided by law and the rules of court.”

3. §1759 v. § 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 [CPUC], 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. [¶] No recovery as provided in this section shall in any manner affect a recovery by the State of the penalties provided in this part or the exercise by the [CPUC] of its power to punish for contempt.”

4. §1759 v. § 2106 There is a potential conflict between sections 1759 and 2106 because section 2106 authorizes an action in superior court for damages caused by a public utility's unlawful act. Section 1759, however, prevails where an award of damages in superior court would hinder or frustrate the CPUC's declared supervisory and regulatory policies. San Diego Gas & Electric Co. v. Superior Court, 13 Cal. 4th 893, 914-15 (Cal. 1996) (“Covalt”).

5. The Covalt Test The CA Supreme Court in Covalt articulated a 3-part test to determine preclusion by §1759: –(1) whether the CPUC had the authority to adopt a ratemaking policy; –(2) whether it exercised its authority; and –(3) whether the present superior court action would hinder or interfere with that policy.

6. Exclusive CPUC Jurisdiction Where award of damages would: –reverse or annul a specific order, relief, or policy of the Commission –have the effect of undermining general supervisory or regulatory CPUC policy (i.e., hinder, frustrate, interfere with, or obstruct CPUC policy)

7. Examples Covalt (Cal. 1996): private property damage claims barred because CPUC had issued decision declining to set max level of EMFs at the time and stating that there is no conclusive causal relationship between public health and powerline EMFs Hartwell (Cal. 2002): barred claims challenging the adequacy of drinking water standards because they would interfere with CPUC’s formally adopted DHS water quality benchmarks Anchor (Cal. App. 2006): barred action attempting to modify SCE's application of the 10 percent discount and its financing scheme because it would interfere with CPUC's ratemaking function Leprino (Cal. App. 2006) (unpublished): barred action that would contravene the CPUC's 2004 Decision prohibiting retroactive refunds and frustrate CPUC's jurisdiction over direct access related issues

8. Concurrent Jurisdiction Consumer protection actions Actions in aid of, rather than in derogation of, the Commission's jurisdiction Actions enforcing CPUC regulations

9. Examples: Consumer Protection Orloff (Cal. 2003): public prosecution of false advertising of telecommunications services In re Jamster Marketing Litigation (S.D. Cal. 2009): class action for cell phone false advertising in violation of unfair competition laws Coolman (Cal. App. 2005): private action against practice of cramming Cundiff (Cal. App. 2002): class action for charging customers without their knowledge for non-existent or obsolete telephones Wise (Cal. App. 1999): private attorney general action for violation of unfair competition laws Cellular Plus (Cal. App. 1993): price fixing violations of the Cartwright Act

10. Limitations City of Anaheim (Cal. App. 2004): city seeking reimbursement for relocation expenses was not an action for the benefit of the entire state and would interfere with CPUC’s equitable determination of the order in which communities throughout the state should have their overhead facilities moved underground PUC and district attorneys must coordinate efforts to avoid any actual conflict in factual findings or legal conclusions (Orloff) If disclosure of investigative materials by the CPUC would impede the CPUC’s investigation, the district attorneys are required to await disclosure pending further action by the CPUC (Orloff) Relief awarded cannot render completely ineffective or moot the relief, orders, or policies previously rendered by CPUC (Orloff)

11. Limitations (cont.) Private party acting as a private attorney general permitted, but court should solicit views of CPUC regarding any interference with parallel enforcement proceeding (Orloff) –Wise I (Cal. App. 1999) (permitting private attorney general action where concurrent investigatory CPUC proceeding pending, but trial court directed to stay the civil action pending further PUC proceedings) –Wise II (Cal. App. 2005) (upholding reinstatement of civil case where CPUC never issued a ruling or policy statement on fraudulent conduct after closing investigations)

12. Examples: Aiding the CPUC City of Anaheim (Cal. App. 2004): if utility was required to pay for relocation of overhead facilities and it failed to do so, the superior court would have jurisdiction to rule on a complaint for payment Vila (Cal. App. 1965): permitted claims for injunctive relief and compensatory damages against water company refusing to provide water services required by CPUC regulations

13. No CPUC Jurisdiction Damages based on past violations Actions against non-regulated entities

14. Examples Hartwell (Cal. 2002): permitted damages based on past violations of water quality standards because the CPUC's remedies are "essentially prospective in nature” Hartwell (Cal. 2002): civil claims against entities not regulated by CPUC were not precluded, even if findings conflict with those in PUC decisions regarding regulated public utilities Actions against municipalities –Hanson (Cal. 1986) (upholding as reasonable a 70 percent surcharge imposed on nonresident service by municipal water company) –American Microsystems (Cal. App. 1982) (holding that complaint failed to state a cause of action against publicly-owned municipal utility because, unlike CPUC-regulated utilities, it is under no mandate to pass through to ratepayers any savings realized in the cost of service)