Filed 3/26/14 Unmodified opinion attached

                               CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                                  FIRST APPELLATE DISTRICT


                                            DIVISION THREE




AMPARO RIVERA MATA et al.,                               A138568

        Plaintiffs and Appellants,
                                                         (Marin County
v.
                                                         Super. Ct. No. CV 083558)
PACIFIC GAS AND ELECTRIC
COMPANY et al.,
                                                         ORDER MODIFYING OPINION
        Defendants and Respondents.
                                                         AND DENYING REHEARING;
                                                         NO CHANGE IN JUDGMENT



THE COURT:

It is ordered that the opinion filed herein on February 28, 2014, be modified in the
following particular:


     On page 6, lines 4-7, delete the sentence and citation:




                                                  1
    The order begins with this admonition: “Commission stresses that the standards
    establish only minimum clearance levels and do not prescribe either maximum
    clearances or specific or comprehensive tree-trimming procedures.” (Id. at p. 693,
    italics added.)


The petitions for rehearing are denied. There is no change in the judgment.




Dated: ________________
                                                _________________
                                                Pollak, Acting P. J.




                                            2
Superior Court of Marin County, No. CV 083558, Lynn Duryee, Judge.




Counsel for Plaintiffs and Appellants:   Gerald Peters




Counsel for Defendants and Respondents
Pacific Gas and Electic Company:         Kenneth E. Lee


                                         SEDGWICK LLP
                                         Gayle L. Gough
                                         Kirk C. Jenkins
                                         Kristie A. Tappan




The Davey Tree Expert Company:           NIXON PEABODY LLP
                                         Robert M. Blum
                                         Aldo E. Ibarra




                                         3
Filed 2/28/14 Unmodified opinion
                               CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIRST APPELLATE DISTRICT

                                       DIVISION THREE


AMPARO RIVERA MATA et al.,
        Plaintiffs and Appellants,
                                                      A138568
v.
PACIFIC GAS AND ELECTRIC                              (Marin County
COMPANY et al.,                                       Super. Ct. No. CV 083558)
        Defendants and Respondents.


        Plaintiffs are the heirs of Carlos Rivera Olvera (decedent) who, while trimming a
redwood tree on September 18, 2007, was electrocuted by a high voltage power line of
defendant Pacific Gas and Electric Company (PG&E). Defendant The Davey Tree Expert
Company is a vegetation pre-inspection contractor that contracted with PG&E to perform
inspections to ensure that proper clearances were maintained between PG&E power lines
and surrounding vegetation. Plaintiffs’ complaint alleged several causes of action against
PG&E and The Davey Tree Expert Company and other defendants, many of which have
been resolved by summary adjudication or settlement.
        What remains and is now before us is the trial court’s order dismissing causes of
action against both defendants for negligence and against PG&E for premises liability,
which claims are based on the allegation that defendants “negligently, carelessly,
recklessly, or in some other actionable manner, failed to inspect the power lines and trees
in the vicinity of the power lines, and failed to maintain an adequate clearance of the
power lines, so that the branches of the trees on the premises had grown above and
around the 12,000-volt line. Said [defendants] knew, or in the exercise of reasonable care
should have known, that the conditions constituted a dangerous condition and


                                              1
unreasonable risk of harm to those who would foreseeably be on the premises and in the
vicinity of the trees and power lines, and that the danger would not be apparent to people
such as the decedent.” The trial court granted the defendants’ motion to dismiss “because
this court lacks subject matter jurisdiction under Public Utilities Code section § 1759.”1
Plaintiffs have timely appealed.2
                                          Background
         Although plaintiffs’ complaint alleges that the power line in question did not
comply with the minimum vegetation clearance requirements established by the
California Public Utilities Commission (PUC or commission), summary adjudication
previously was granted against plaintiffs on their cause of action for negligence per se,
based on undisputed evidence that the clearance did comply with the PUC’s general order
No. 95. Plaintiffs’ opposition to the motion to dismiss and its appeal do not question this
premise. However, plaintiffs contend that the PUC’s minimum clearance requirements do
not relieve the utility or its contractor from the duty to exercise reasonable care to
maintain the power lines in a safe condition if compliance with the minimum
requirements is not sufficient to do so, and that the superior court retains jurisdiction to
remedy breaches of that duty. That was the view of a different trial judge who denied
defendants’ earlier motion for summary judgment: “Assuming defendants’ undisputed
evidence demonstrates compliance with the statutory and regulatory clearance
requirements for Major Wood Stems found in PUC General Order 95 . . . , that fact does
not establish, as a matter of law, that defendants did not breach their duty of due care to
maintain the power lines in a safe condition at all times and places and under the


1
    All statutory references are to the Public Utilities Code.
2
  Subsequent to oral argument and submission of the case for decision, the parties
submitted a joint request for the court to dismiss the appeal, based on a settlement
agreement conditioned on “dismissal before an opinion on appeal is issued, and
confidentiality as permitted by law.” We question the propriety of this condition and in
all events deny the request.
  PG&E’s request that we take judicial notice of an amicus curiae brief filed by the PUC
in the Sarale case discussed, post, and of portions of general order No. 95 is granted.


                                                2
changing circumstances of the particular case. [Citations.] [¶] ‘Compliance with the
general orders of the [PUC] does not establish as a matter of law due care by the power
company, but merely relieves it “of the charge of negligence per se. It does not affect the
question of negligence due to the acts or omissions of the company as related to the
particular circumstances of the case.” [Citation.]’ (Nevis v. P.G. & E. (1954) 43 Cal.2d
626, 630.) Safety regulations prescribe only the minimum care required, ‘and it is usually
a matter for the jury to determine whether something more than the minimum was
required under the evidence in the case. [Citations.]’ (Pennington v. Southern Pacific Co.
(1956) 146 Cal.App.2d 605, 613-614.)”
       The judge hearing defendants’ subsequent motion to dismiss reached a different
conclusion. This judge concluded that under the three-part test established by the
Supreme Court in San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th
893, 923, 926, 935 (Covalt), and applied in what the court regarded as an analogous case,
Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal.App.4th 225 (Sarale), plaintiffs’
claim falls within the exclusive jurisdiction of the PUC.
                                           Analysis
       Although the court in Sarale was divided as to the outcome in that case, there was
no disagreement as to the legal framework within which the issues must be analyzed.
(Sarale, supra, 189 Cal.App.4th 225.) We adopt that court’s summary of the governing
law:
       “ ‘The commission is a state agency of constitutional origin with far-reaching
duties, functions, and powers . . . including the power to fix rates, establish rules, hold
various types of hearings, award reparation, and establish its own procedures.’
(Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891,
905, . . . citing Cal. Const., art. XII, §§ 1–6.) In addition, the Legislature, which has the
‘ “ ‘plenary power . . . to confer additional authority and jurisdiction upon the
commission,’ ” ’ can broaden the commission's authority. (Consumers Lobby Against
Monopolies, supra, at p. 905, . . . quoting Cal. Const., art. XII, § 5).



                                               3
       “Employing its plenary power, the Legislature enacted the Public Utilities Act
(§ 201 et seq.), which ‘vests the commission with broad authority to “supervise and
regulate every public utility in the State.” ’ (Covalt, supra, 13 Cal.4th at p. 915 . . . .) This
broad authority authorizes the 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.’ (Ibid., italics omitted.)
‘ “The commission’s authority has been liberally construed” [citation], and includes not
only administrative but also legislative and judicial powers.’ (Ibid.)
       “Commission action is subject to judicial review, the ‘manner and scope’ of which
is established by the Legislature. (Cal. Const., art. XII, § 5.) ‘Pursuant to this
constitutional provision, the Legislature enacted article 3 of chapter 9 of the Public
Utilities Act, entitled “Judicial Review” (§ 1756 et seq.),’ which ‘prescribes a method of
judicial review that is narrow in both “manner and scope.” ’ (Covalt, supra, 13 Cal.4th at
p. 915 . . . .) Among the provisions of that article is subdivision (a) of section 1759,
which provides that ‘[n]o court of this state, except the Supreme Court and the court of
appeal, to the extent specified in this article, shall have jurisdiction to review, reverse,
correct, or annul any order or decision of the commission or to suspend or delay the
execution or operation thereof, or to enjoin, restrain, or interfere with the commission in
the performance of its official duties, as provided by law and the rules of court.’
       “Despite this limitation on the jurisdiction of trial courts to review commission
rules and decisions, the Legislature has provided for a private right of action against
utilities for unlawful activities and conduct. Specifically, section 2106 provides for an
action to recover for loss, damage, or injury ‘in any court of competent jurisdiction’ by
any corporation or person against ‘[a]ny public utility which does, causes 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.’
       “ ‘[R]ecognizing a potential conflict between sections 2106 and 1759,’ the
California Supreme Court ‘has held section 2106 “must be construed as limited to those


                                                4
situations in which an award of damages would not hinder or frustrate the commission's
declared supervisory and regulatory policies.” ’ (Koponen v. Pacific Gas & Elec. Co.
(2008) 165 Cal.App.4th 345, 351 . . . .)
       “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.” ’ . . .)” (Sarale, supra, 189 Cal.App.4th at pp. 235-236;
see also, e.g., People ex. rel. Orloff v. Pacific Bell (2003) 31 Cal.4th 1132, 1144-1145;
Ford v. Pacific Gas & Electric Co. (1997) 60 Cal.App.4th 696, 700-701.)
       As the trial court held, there is no question here but that the first part of this three-
prong test is satisfied. Disagreement centers on the application of the second and third
prongs of the test. Plaintiffs contend that although the PUC has exercised its authority to
specify normal minimum clearance requirements, it has not exercised its authority to
modify the utility’s duty to use reasonable care in maintaining clearance greater than the
minimum if necessary at a particular location to ensure the safety of others, nor has it
attempted to define the extent of clearance beyond the minimum that may be required at
particular locations. Permitting the courts to impose liability for unreasonably failing to
maintain greater clearance than the recommended minimum, plaintiffs contend, does not
in any way hinder or interfere with the PUC’s exercise of authority.
       Rules governing the construction and maintenance of overhead electric lines are
set forth in the PUC’s general order No. 95. Rule 11 within the general order states that
“[t]he purpose of these rules is to formulate, for the state of California, uniform
requirements for overhead electric line construction, the application of which will insure
adequate service and secure safety to persons engaged in the construction, maintenance,
operation or use of overhead electrical lines and to the public in general.” Rule 35 of the
general order (rule 35) governs tree trimming. The evolution of this rule prior to its
revision in January 2012 is summarized in the Sarale opinion. (Sarale, supra, 189
Cal.App.4th at pp. 237-239.) The order adopted by the commission on January 23, 1997


                                               5
in Re San Diego Gas and Electric Co. (1997) 70 Cal.P.U.C.2d 693, which was in effect at
the time of the decedent’s accident, “adopt[ed] final standards for trimming trees which
are in proximity to overhead electric lines of utilities within our jurisdiction.” (Id. at
p. 694.) The order begins with this admonition: “Commission stresses that the standards
establish only minimum clearance levels and do not prescribe either maximum
clearances or specific or comprehensive tree-trimming procedures.” (Id. at p. 693, italics
added.) In the discussion portion of its opinion, the commission states: “We do not need
to determine what the appropriate maximum clearances should be, but we do have to
determine the minimum safe clearances and a reasonable level of expense for the utility
to maintain such clearances.” (Id. at p. 697, italics added.) In its discussion of the
jurisdiction of the commission, the opinion states: “Our action today does not limit or
mandate the maximum limits of tree trimming, or specify the manner in which trimming
activities must be accomplished. We are selecting a safe minimum standard to insure
system safety and reliability, but we are not adopting comprehensive rules and
procedures to specify how the minimum obligation of the utilities must be accomplished.
[¶] In recognition of this circumstance, we will decline to adopt a declaration of our
jurisdiction as part of our order. In our view, such a course would be fraught with the
danger of acting outside of our authority in this proceeding.” (Id. at p. 699, italics added.)
       An appendix to the 1997 order that adopted the rule 35 standards provides, with
certain inapplicable exceptions: “Where overhead wires pass through trees, safety and
reliability of service demand that tree trimming be done in order that the wires may clear
branches and foliage by a reasonable distance. The minimum clearances established in
[an accompanying table] measured between line conductors and vegetation under normal
conditions, shall be maintained.” (Re San Diego Gas and Electric Co., supra, 70
Cal.P.U.C.2d at pp. 701-702.) A second appendix, appendix E, provides “guidelines to
Rule 35” which state: “The radial clearances shown below are minimum clearances that
should be established, at time of trimming, between the vegetation and the energized
conductors and associated live parts where practicable. Vegetation management practices



                                               6
may make it advantageous to obtain greater clearances than those listed below.” (Id. at
p. 705, italics added.)
         Rule 35 was modified in 2005,3 2009,4 and by PUC Decision No. 12-01-032 on
January 12, 2012 (2012 Cal.P.U.C. Lexis 40). Although the changes made subsequent to
decedent’s accident may not bear on the standard of care governing defendants’ conduct
on an earlier date, they do bear on whether recognizing the court’s jurisdiction over
plaintiffs’ claim threatens to hinder or interfere with the exercise of the commission’s
jurisdiction. In fact, neither amendments that were made to rule 35 in 2005 and 2009 nor
the most recent amendments of the rule make any change with respect to the nature of the
specified clearance distances in rule 35: these distances are minimums only and greater
clearances may be advisable in some circumstances. The guidelines to the rule in
appendix E now read: “The radial clearances shown below are recommended minimum
clearances that should be established, at time of trimming, between the vegetation and the
energized conductors and associated live parts where practicable. Reasonable vegetation
management practices may make it advantageous for the purposes of public safety or
service reliability to obtain greater clearances than those listed below to ensure
compliance until the next scheduled maintenance. Each utility may determine and apply
additional appropriate clearances beyond clearances listed below, which take into
consideration various factors, including: line operating voltage, length of span, line sag,
planned maintenance cycles, location of vegetation within the span, species type,
experience with particular species, vegetation growth rate and characteristics, vegetation
management standards and best practices, local climate, elevation, fire risk . . . .”
(Cal.P.U.C. Dec. No. 12-01-032, pp. 356-357, italics added.)5

3
    PUC Decision No. 05-01-030 (Jan. 13, 2005) 2005 Cal.P.U.C. Lexis 2.
4
    PUC Decision No. 09-08-029 (Aug. 25, 2009) 2009 Cal.P.U.C. Lexis 433.
5
  As worded in the interim revisions to appendix E of general order No. 95, adopted in
2009, the guideline read: “The radial clearances shown below are minimum clearances
that should be established, at time of trimming, between the vegetation and the energized
conductors and associated live parts where practicable. Reasonable vegetation
management practices may make it advantageous to obtain greater clearances than those

                                              7
       Thus, the PUC rules and prior orders repeatedly make clear that while a utility
normally must maintain specified minimum clearances between its overhead electric lines
and adjacent trees, the commission leaves to the determination of the utility whether
greater clearances are necessary at particular locations to accomplish the purposes of rule
35, including to “secure safety . . . to the public in general.” Nowhere in its rules or
orders does the commission suggest that in making such determinations, the utility is
relieved of its obligation to exercise reasonable care to avoid causing harm to others, or
relieved of its responsibility for failing to do so. PG&E does have “a duty to make the
wires safe under all the exigencies created by the surrounding circumstances.” (Scally v.
Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806, 815.) Failure to satisfy that duty
subjects the utility to liability in judicial proceedings for damages to those harmed by its
negligence. (E.g., Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 395-
397; Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205; cf. Laabs v.
Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1269-1271.)
       As recognized in the case relied on by the trial court in denying summary
judgment, “Compliance with the general orders of the [PUC] does not establish as a
matter of law due care by the power company, but merely relieves it ‘of the charge of
negligence per se. It does not affect the question of negligence due to the acts or
omissions of the company as related to the particular circumstances of the case.’ ” (Nevis
v. Pacific Gas & Electric Co., supra, 43 Cal.2d 626, 630.) Although a case before the
PUC involving the imposition of penalties rather than an award of damages, the decision
in In re Southern California Edison Co. (Cal.P.U.C. Apr. 22, 2004) No. 04-04-065 [2004
Cal.P.U.C. Lexis 207], reconfirms that compliance with the prescribed minimum
standards is no shield against liability for failing to exercise reasonable care in
determining whether the minimum should be exceeded. “Edison has argued that if it has
complied with the maintenance intervals of GO [General Order] 165, it should be


listed below.” (Cal.P.U.C. Dec. No. 09-08-029, supra, p. 509 [2009 Cal.P.U.C. Lexis
433], italics added.)


                                               8
excused from liability for GO violations, for example, if a tree has grown enough since
its last inspection that it is less than the minimum GO clearance from a power line. We do
not agree. GO 165 sets minimum intervals for maintenance inspections. Circumstances
may dictate that shorter intervals are required in particular cases. For example, an
exceptionally wet or mild winter may result in faster vegetation growth. Simply
complying with the minimum intervals set by our GO will not be sufficient to deal with
that situation and the utility should be presumed to know that.” (Id. at pp. 23-24.)
       Defendants’ argument, and the trial court’s order, rest primarily on the decision in
Sarale. In that case two different landowners sought to obtain declaratory and injunctive
relief and in one case damages from PG&E for trimming trees at greater distances from
its power lines than the minimum clearance distances specified in the PUC general order.
The landowners claimed, among other things, that the scope of power line easements
authorized PG&E “to trim no further than the distance established by” the PUC (Sarale,
supra, 189 Cal.App.4th at p. 233) and that PG&E had trimmed “beyond what the
commission has mandated.” (Id. at p. 242; italics in original.) In response to PG&E’s
argument that the court lacked jurisdiction “to interfere with the commission’s regulation,
supervision and inspection of PG&E’s vegetation management program” (id. at p. 235),
PG&E’s demurrers were sustained without leave to amend and the rulings were upheld
on appeal. The Court of Appeal held that “trial courts lack jurisdiction to adjudicate
claims that a power utility has engaged in excessive trimming or unreasonable vegetation
management when the utility has acted under guidelines or rules set forth by the
commission. Section 1759 safeguards the commission’s ability to implement statewide
safety protocols from being undermined by an unworkable patchwork of conflicting
determinations regarding what constitutes necessary or proper management of power
lines. In short, challenges to PG&E’s tree trimming as unreasonable, unnecessary, or
excessive lie within the exclusive jurisdiction of the commission to decide.” (Id. at
p. 231.) In a strong dissent, Justice Robie argued that the majority “fail[ed] to explain
how allowing these lawsuits to go forward will interfere with the commission’s exercise
of its regulatory authority—given that the plaintiffs in both cases do not challenge any


                                              9
trimming that falls within the minimum clearances the commission has established.” (Id.
at p. 252; italics in original.)
       It is unnecessary to take sides with either the majority or dissent in Sarale because
there is a fundamental difference between the claims in that case and plaintiffs’ claim
here. In Sarale, the landowners were attempting to prohibit PG&E from trimming more
than the minimum required by the PUC, although—as indicated above—the PUC has
made unmistakably clear that in some cases safety or other considerations require more
than minimum clearances and that the utility should use its judgment to go beyond the
minimum when necessary to ensure the reliability of service or public safety. In the view
of the majority, recognition of the landowners’ claims 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. Here, on the other hand, plaintiffs’ claims do not
conflict with the PUC rule authorizing the utility to make a reasonable determination
whether safety or other considerations require trimming beyond the minimum clearance.
Permitting plaintiffs to prosecute in superior court their claim for having failed to use due
care in making such a determination does not hinder or interfere with the exercise of the
PUC’s authority. To the contrary, awarding damages to those injured by the utility’s
failure to make such a reasonable determination as anticipated by the PUC complements
and reinforces rule 35. A superior court action for such damages is “in aid of, rather than
in derogation of, the PUC’s jurisdiction.” (Hartwell Corp. v. Superior Court (2002) 27
Cal.4th 256, 275; Vila v. Tahoe Southside Water Utility (1965) 233 Cal.App.2d 469, 479;
see also People ex. rel. Orloff v. Pacific Bell, supra, 31 Cal.4th at pp. 1146-1148.)
       Unlike the situation in Sarale, denying plaintiffs the right to pursue their claim in
superior court would deny them any means of recovery. In Sarale the majority opinion
explains that the landowners could seek injunctive relief from the PUC to prohibit
excessive tree trimming. (Sarale, supra, 189 Cal.App.4th at pp. 243-244.) However, the
commission has recognized its inability to determine prospectively whether clearance
beyond the minimum is necessary or advisable at every location where power lines are


                                              10
situated throughout the state, and it has expressly declined any attempt to do so. The PUC
cannot evaluate and rectify individual claims for damages resulting from a utility’s failure
to exercise reasonable care in making that determination at a particular location. (Vila v.
Tahoe Southside Water Utility, supra, 233 Cal.App.2d at p. 479; Hartwell Corp. v.
Superior Court, supra, 27 Cal.4th at p. 277 [“[T] he PUC can redress violations of the
law or its orders by suit (§ 2101), by mandamus or injunction (§§ 2102-2103), by actions
to recover penalties (§§ 2104, 2107), and by contempt proceedings (§ 2113), but these
remedies are essentially prospective in nature. They are designed to stop the utilities from
engaging in current and ongoing violations and do not redress injuries for past wrongs.”];
see also People ex. rel. Orloff v. Pacific Bell, supra, 31 Cal.4th at p. 1148.) Thus,
although some language in the Sarale majority opinion may be read to suggest that the
courts have no jurisdiction to consider any claim involving alleged inadequate tree
trimming around regulated power lines, such a conclusion is not supported by the facts of
that case, the pronouncements of the PUC, section 2106, or fundamental principles of
equity and the role of the courts.
       In concluding, as we do, that the court is not precluded by section 1759 from
entertaining plaintiffs’ claim, we of course make no suggestion as to the ultimate merits
of the claim. Many other issues remain to be considered. We hold only that the superior
court has jurisdiction over the matter, and that plaintiffs’ claim for damages based on the
allegation that PG&E breached its duty to maintain adequate clearance beyond the
prescribed minimum does not rest on an issue within the exclusive jurisdiction of the
PUC.
                                         Disposition
       The judgment is reversed and the matter is remanded for further proceedings
consistent with this opinion.6 Plaintiffs shall recover their costs on appeal.



6
 In view of our determination that plaintiffs’ claim is not barred by section 1759, it is not
necessary to consider other issues presented in the appeal as to defendant The Davey Tree
Expert Company.


                                              11
                                 _________________________
                                 Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




A138568


                            12
Superior Court of Marin County, No. CV 083558, Lynn Duryee, Judge.


Counsel for Plaintiffs and Appellants:    Gerald Peters


Counsel for Defendants and Respondents
Pacific Gas and Electic Company:          Kenneth E. Lee

                                          SEDGWICK LLP
                                          Gayle L. Gough
                                          Kirk C. Jenkins
                                          Kristie A. Tappan


The Davey Tree Expert Company:            NIXON PEABODY LLP
                                          Robert M. Blum
                                          Aldo E. Ibarra




A138568



                                         13
